Hatcher v. Bell

• Decision Date: 05 December 1974
• Citation: 521 S.W.2d 799
• Parties: Abe HATCHER, Appellant, v. Henry Denmark BELL, Appellee.
• Court: Tennessee Supreme Court

Page 799

521 S.W.2d 799

Abe HATCHER, Appellant, v. Henry Denmark BELL, Appellee.

Supreme Court of Tennessee.

Dec. 5, 1974.

Rehearing Denied Dec. 24, 1974.

Wayne S. Taylor, James R. Omer, Omer, Taylor, Ellis & Brabson, H. Francis Stewart, Stewart & Estes, Nashville, for appellant.

Ward DeWitt, Jr., Wilson N. West, Nashville, for appellee.

OPINION

COOPER, Justice.

This appeal is from a decree holding void an election for judicial office and declaring the office vacant from and after the expiration of the judicial term ending on the 31st day of August, 1974.

Henry Denmark Bell and Abe Hatcher were candidates for the office of Judge of Division 1 of the Seventeenth Judicial Circuit of the State of Tennessee in the election held on August 1, 1974. Mr. Hatcher received the majority of the votes cast for the office and the results were properly certified by the County Election Commissioners on August 5, 1974. Within the statutorily designated ten (10) day period for the filing of an election contest, Henry Denmark Bell filed a complaint seeking to have the court declare (1) that Abe Hatcher was not eligible to hold the office under the Constitution of the State of Tennessee, and (2) that the election held on August 1, 1974, was void.

Specifically, Mr. Bell charged that Abe Hatcher had not been a resident of the State of Tennessee for five years before his election as required by Article 6, Section 4 of the Constitution of the State of Tennessee and, consequently, was disqualified from holding the office to which he was elected.

In answer the defendant denied that he had failed to comply with the residence requirements set forth in the Constitution and denied the charge that he was constitutionally ineligible to hold the office to which he had been elected. The defendant also plead estoppel and the further defense that the complaint failed to state a claim under which the relief sought could be granted. Under the latter plea, the defendant raised the question of plaintiff's standing to bring the suit.

On trial of the issues by oral testimony, the chancellor found that Mr. Hatcher had not met the residence requirement set forth in the Tennessee Constitution and, consequently, was disqualified from holding the office of Judge of Division 1 of the Seventeenth Judicial Circuit. The chancellor then entered a decree declaring the election void and the office vacant as of the end of the judicial term. The chancellor also enjoined Mr. Hatcher from taking the oath of office.

Mr. Hatcher appealed, insisting the chancellor erred in holding that Mr. Bell had standing to bring a suit which questioned the constitutional qualifications of a successful candidate for public office. The appellant also challenged the chancellor's interpretation of the residence requirement set forth in the Constitution, and his finding that Mr. Hatcher, in fact, did not meet that requirement. Further, appellant insists the chancellor erred in holding that Mr. Bell was not estopped from bringing the suit.

The machinery for the contest of an election is set out in T.C.A. Sections 2--1701 through 2--1716. The provisions pertinent to the issues in this case are as follows:

'2--1701. Jurisdiction of Chancery Courts.--Who may contest. . . .

'The incumbent office holder and any candidate for the office may contest the outcome of an election for the office. . . .

'2--1705. Time for filing complaint.--The complaint contesting an election under § 2--1701 shall be filed within ten (10) days after the election.

'2--1712. Judgment in election contests.--After hearing the case the court shall give judgment either:

(a) Confirming the election; or

(b) Declaring the election void; or . . .

'2--1713. Election declared void.--If the person whose election is contested is found to have received the highest number of legal votes, but the election is declared null by reason of constitutional disqualifications on his part or for other causes, the election shall be declared void.'

The appellant concedes that under these code sections, Mr. Bell is a proper party to contest the election. Appellant insists, however, that the suit filed is not an election contest in that it questions only the qualifications of appellant to hold the office to which he was elected. The thrust of appellant's argument is that a suit, to be an election contest, must in some manner assail 'the validity or integrity of the election process, and that the plaintiff make some claim to the office.'

There is no question but that a suit which attempts to go behind the election returns, to recount the votes or otherwise assail the manner and form of the election is an election contest. See State v. Dunn, 496 S.W.2d 480 (Tenn.1973); State v. Sensing, 188 Tenn. 684, 222 S.W.2d 13 (1949). But an election contest is not limited to an attack on the integrity of the election process, nor is it limited to an attack by a candidate who makes claim to the office. A valid election to a public office impliedly contemplates that the party elected can legally hold the office to which he is elected. It would border on the absurd to say that a person who receives the highest number of votes in an election, but who cannot legally hold or occupy such office is or can be legally elected to the office. As we read T.C.A. Sections 2--1701 and 2--1713 set out above, a contest challenging the validity of an election upon the constitutional disqualification of the candidate receiving the highest number of votes in the election under attack is contemplated and authorized. Further, this court has approved the testing of the validity of an election in a suit predicated upon the constitutional disqualification of the winning candidate. Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192 (1930); Lewis v. Watkins, 71 Tenn. 174 (1879).

In Lewis v. Watkins, supra, the defeated candidate for sheriff undertook to test the election of the successful candiate on two distinct grounds. The first count of the declaration filed was predicated upon charges which, if sustained, would tend to establish the contestant's right to the office. The second count, however, was based solely on the ineligibility of the successful candidate 'because a defaulter to the State on the day of the election, for public revenue collected by him as a tax collector . . ..' This court held, in an opinion by Mr. Justice Cooper, that the latter issue was a proper issue under the election contest statutes, which contained a provision markedly similar to that set forth in T.C.A. § 2--1713. In doing so, the court stated:

'For, if the election be void, the contestant, like any other citizen, might offer legal opposition to a void election, at any rate where the contest is prompt, and before the induction of the defendant into the office. The provisions of the Code seem to contemplate this as one of the grounds of contest, and provides for the judgment in precisely such a case where the finding is in favor of the defendant on the question of election, but against him on the point of his legal or constitutional disqualification.'

In Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192 (1930), the only attack made on the election of Mr. Stegall was his disqualification to hold office. The suit was filed by citizens and taxpayers of Roane County, who made no claim to the office. In the suit, they sought to invalidate the election and to prevent the induction of Mr. Stegall into the office of Justice of the Peace on the sole ground that he was a defaulter and was ineligible to hold office under the Constitution of the State of Tennessee. This court held that the suit was an election contest, and that the county judge had jurisdiction to try the issues. In doing so, the court stated through Chief Justice Grafton Green that:

'In two cases this court has said that a suit to prevent the induction of a defaulter into office or to invalidate an election may be prosecuted either by the incumbent of that office or by any other citizen. Marshall v. Kerns, 32 Tenn. (2 Swan) 68; Lewis v. Watkins, 71 Tenn. (3 Lea) 174. We are aware that the observations have been alluded to as dicta in Maloney v. Collier, 112 Tenn. 78, 83 S.W. 667, but, none the less the statements were well considered and have been accepted as law. It was suggested in Lewis v. Watkins, supra, that a citizen offering legal opposition to a void election should act promptly, but the right of a citizen so to proceed was taken to be clear.

'Even though a defendant has been inducted into an office, a suit to prevent his induction may go on to test the validity of the election in which he was chosen. Lewis v. Watkins, supra.

'If defendant were a defaulter, his election was void under article 2, § 25, of the Constitution, and section 1096, Thompson's-Shannon's Code. Hogan v. Hamilton County, 132 Tenn. 554, 179 S.W. 128. In that case also it was pointed out, citing previous decisions, that a suit to declare ineligible to office the person having the highest number of votes in a particular election was an election contest for jurisdictional purposes.'

Appellant has cited us to several cases where this court has approved the bringing of a quo warranto action to challenge the eligibility of a successful candidate to hold the office to which he was elected. See State v. Sensing, 188 Tenn. 684, 222 S.W.2d 13 (1949); Bickford et al. v. Swafford, 194 Tenn. 381, 253 S.W.2d 557 (1952); State v. Dunn, 496 S.W.2d 480 (Tenn.1973). We have no quarrel with these decisions. However, there is no basis in reason why the same circumstance--that is, the constitutional disqualification of the candidate receiving the highest number of votes in an election--can not be the predicate of an election contest as well as a quo warranto proceeding, depending on the party filing, the ultimate purpose of the proceeding, and the time of filing. The circumstance, if proven, would be determinative of the validity of the election, which is the target of an...