Heiskell v. Lowe

• Decision Date: 29 November 1912
• Citation: 153 S.W. 284,126 Tenn. 475
• Parties: HEISKELL v. LOWE et al.
• Court: Tennessee Supreme Court

153 S.W. 284

126 Tenn. 475

HEISKELL v. LOWE et al.

Supreme Court of Tennessee.

November 29, 1912

Appeal from Circuit Court, Knox County; Von A. Huffaker, Special Judge.

Action by J. L. Lowe against S. G. Heiskell and others. From a judgment, defendant Heiskell appeals. Suit dismissed.

Shields C.J., and Neil, J., dissenting.

Cornick Frantz & McConnell, Pickle. Turner & Kennerly, and Noble Smithson, all of Knoxville, for appellant.

Shields Cates & Mountcastle, Green, Webb & Tate, J. B. Wright, J. R. Penland, Wright & Jones, and Lucky, Andrews & Fowler, all of Knoxville, for appellee.

BUCHANAN J.

James L. Lowe, a resident, citizen, taxpayer, and duly registered voter of the city of Knoxville, Knox county, Tenn., filed a petition on his own behalf in the circuit court aforesaid against Samuel G. Heiskell, individually, and against R. A. Brown, John D. Caldwell, and H. T. Cooper, as election commissioners of and for the county of Knox. The petition recited the passage of chapter 498 as published in the Private Acts of the General Assembly of Tennessee of the Year 1911; that, while published with the private acts, it was, in fact, by its terms, a public act, and an amendment of chapter 207 of the Acts of 1907; that, under the terms of the act of 1911, the election commissioners had held an election by the qualified voters of the city of Knoxville for the purpose of electing a mayor and four commissioners for the city, at which election defendant Samuel G. Heiskell, John E. McMillan, and John I. Simpson were, respectively, each a candidate for the office of mayor; that the election returns showed that Heiskell had received 2,595, McMillan 2,581, and Simpson 37 votes; and that Heiskell was thereupon demanding of the election commissioners a certificate showing and declaring him to have been elected to and entitled to hold the office of mayor of the city of Knoxville.

It recited that Heiskell had disqualified himself from holding the office of mayor by a noncompliance with the terms of section 30, c. 498, of the Acts of 1911, by which each candidate for mayor was required, on the day before the election and within three days after the election, to file with the recorder and publish, at least once, in a daily newspaper of daily circulation, his sworn statement of all his campaign and election expenses itemized, and by whom such funds "are contributed," upon pain of being disqualified from holding the office he "seeks or has been elected to" in the event of failure so to do.

It recited that Heiskell did file with the recorder, between the hours of 6 and 7 o'clock p. m. of the day before the election, a statement which, it avers, is not in compliance with section 30, but that no publication of the statement so filed was made on the day before the election; that it was, however, published on the morning of election day; and that he did make publication of a statement on January 22, 1912, purporting to show his campaign and election expenses. Copies of each of these statements are filed as exhibits with the petition, and they show that they were intended to be considered as a compliance with section 30, but in each of them it is made to appear that Mr. Heiskell contended that section 30 of the act, because of the provisions of section 44 of the act, did not go in effect until the fourth Saturday in January, 1912, and therefore he was under no legal obligation to file or publish either of the statements. The petition avers that each of the statements was insufficient as a compliance with section 30, in that there was no itemization in either of them as required by section 30, and in that, it averred, there was contributed to a so-called "Democratic campaign fund" and used in aid of the election of Samuel G. Heiskell "many thousands of dollars," namely, $10,000, or more.

The petition prayed for process, waived the answer of Heiskell under oath, and prayed for a "decree" that he had disqualified himself from holding the office of mayor for and during the term for which he was a candidate, and that the said election for said office of mayor be declared void, and such result certified to the election commissioners of Knox county, Tenn., to the end that they may hold another election, and for a preliminary injunction restraining defendant Heiskell from receiving a certificate of election, and from taking the oath of office, or qualifying as mayor, or performing any duties or functions of said office, and that the election commissioners be enjoined from issuing a certificate of election to the defendant Heiskell, or recognizing him as legally elected as an officer and entitled to the certificate of election, upon the ground that he is disqualified from receiving the certificate of election thereto. The petition also prayed for general relief, etc.

The petition was filed January 23, 1912. On the same day the preliminary writ of injunction was granted as prayed. Defendants were duly served with process, and the defendant Heiskell demurred to the jurisdiction of the court on several grounds. This demurrer was overruled, but the court modified the injunction, so as to restrain defendant Heiskell from taking and holding the office of mayor under the election held the 20th day of January, 1912, and not for a term of four years from that date. A motion to dissolve the injunction on several grounds was made by defendant Heiskell, which was, likewise, overruled by the court. Whereupon, defendant Heiskell declining to further plead, the court, because of the failure of defendant Heiskell to comply with section 30 of the act of 1911, finally adjudged and decreed that the election of January 20, 1912, was void; that Heiskell had disqualified himself from being inducted into the office of mayor under that election, but no further or otherwise; that he be enjoined from receiving a certificate of election from defendant commissioners, and from being inducted into office under the election; that there was a vacancy in the office of mayor of Knoxville, which fact the clerk of the circuit court was directed to certify to the board of commissioners of the city of Knoxville, to the end that such vacancy be filled as provided by section 12 of the act of 1911; that Heiskell pay the costs of the cause, for which execution was awarded.

Heiskell prayed and perfected an appeal to the Court of Civil Appeals. Lowe prayed an appeal from so much of the decree as was in accord with the prayer of his petition to the Supreme Court of this state. Such appeal was refused, but he was granted such appeal to the Court of Civil Appeals. In that court, Lowe moved to transfer the cause to this court, which motion was granted. So the cause is before us on assignments of error by each of the parties.

The demurrer to the jurisdiction of the circuit court was upon the following grounds:

First, that the petition presented neither an election contest nor a quo warranto proceeding, but merely a quia timet action, of which that court had no jurisdiction.

Second, that section 30 of the act of 1911 was not in force and had no application to the election of January 20, 1912.

Third, that, if section 30 was in force at the date of election, the exhibits to the petition showed a compliance therewith.

Fourth, that the circuit court was without power in any aspect of the case to restrain the action of the election commissioners in certifying the result of the election, and that no grounds were stated in the petition for any such relief. The assignments of error made on behalf of defendant Heiskell in this court raise the same questions presented by the demurrer. We will consider the case without discussing seriatim the assignments of error.

It is said that Mr. Heiskell rendered himself ineligible to the office of mayor of Knoxville by his failure to comply with the provisions of section 30 of chapter 498 of the Private Acts of 1911.

It is alleged that, under the requirements of this section, every candidate for an elective office was required to file, on the day before election, with the recorder, a statement of his campaign and election expenses; that he was required to file such statement with the recorder within three days after election; that he was required to make publication of such statements on the day before election, and also required to make publication within three days after election; that these statements were required to be itemized, and to show by whom the funds used in the campaign were contributed, and the penalty for failure to comply with these requirements was disqualification from holding the office which the candidate sought or had been elected to.

It is charged in the petition that Mr. Heiskell made no statement on the day before election, but it is conceded that he made such a publication within three days after the election.

It is also charged that there was no sufficient compliance with the statute in the itemization of his expenses.

A further charge of the petition is that a large campaign fund, amounting to $10,000 or more, was used in behalf of Mr. Heiskell's interests in this election, and that he was required, under a proper construction of the act, to file a statement and make publication thereof in respect to the collection and expenditure of this campaign fund.

So that the three particulars in which the defendant is alleged to have violated this act are that (1) he failed to make publication on the day before election; (2) he failed to properly itemize the statements filed and published by him; (3) he failed to make any statement with reference to the Democratic campaign fund charged to have been used in his behalf.

It appears that on the day before election Mr. Heiskell filed a statement, heretofore referred to, which...