Hilliard v. Park

• Decision Date: 11 September 1963
• Citation: 370 S.W.2d 829,16 McCanless 588,212 Tenn. 588
• Parties: , 212 Tenn. 588 A. J. HILLIARD v. L. H. PARK et al. Donald MANTOOTH v. L. H. PARK et al. Harvey WILLIAMS v. L. H. PARK et al. W. L. WOOTEN et al. v. L. H. PARK et al. Robert BECKLER v. L. H. PARK et al. Richard MOOREHOUSE v. L. H. PARK et al.
• Court: Tennessee Supreme Court

Page 829

370 S.W.2d 829

16 McCanless 588, 212 Tenn. 588

A. J. HILLIARD v. L. H. PARK et al.

Donald MANTOOTH v. L. H. PARK et al.

Harvey WILLIAMS v. L. H. PARK et al.

W. L. WOOTEN et al. v. L. H. PARK et al.

Robert BECKLER v. L. H. PARK et al.

Richard MOOREHOUSE v. L. H. PARK et al.

Supreme Court of Tennessee.

Sept. 11, 1963.

Rehearing Denied Oct. 11, 1963.

R. R. Kramer, R. Arnold Kramer, Carter B. Wall, Kramer, Dye, McNabb & Greenwood, Knoxville, for petitioners in error.

William B. Felknor, Maryville, for defendants in error.

BURNETT, Chief Justice.

These six cases are election contests and were tried together in the Circuit Court of Polk County because basically the same question was involved in each case. The Sheriff, Circuit Court Clerk, the Registrar of Deeds, County Court Clerk and two Constables received the majority vote in the election of August 2, 1962, in Polk County. Their opposing candidates filed these respective suits to contest their respective elections. These cases were tried by the Circuit Judge without hearing proof, except certain statements of counsel, upon the petitions, demurrers, answers, etc., and certain stipulations of fact. Basically the question here involved comes down to the proposition that the petitions averred that there were included in the number of votes received by the victorious contestees, the Democratic candidates for the county-wide offices, 1,028 illegal and void absentee ballots; that there were a certain number of ballots case for the Constables in each of the districts in which they were elected and that their ballots were proportionately increased by a part of these 1,028 illegal and void absentee ballots (whatever number cast in respective district). These ballots were alleged and averred to be void and illegal because the applications therefor failed to state a reason for the applicants' expected absence from the county on the day of election, or failed to have attached thereto a certificate of a physician or a registrar.

The first ground of the demurrer goes to the heart of this question, that is, whether or not the applicable statutes of the State of Tennessee require that applicants for absentee ballots state on their application the reason for expecting to be absent from the county on the day of the election.

Of course, there are numerous other allegations made in the various petitions, questions raised, etc., but essentially and basically this question determines these lawsuits.

In considering this question the trial judge, after deducting from these 1,028 absentee ballots 54 ballots, representing a number that were in the armed forces and 5 who had voted in this number on the basis of a doctor's certificate, leaving thus 969 said absentee ballots, held that these were illegal and void because the applications therefor did not state a reason for the applicants' expected absence from the county on the day of the election. Thus when this number of votes was taken from the total vote received by the respective candidates and in the Constable districts, they had not received a majority of the votes cast and consequently the election was void. In other words the election in all these instances would have been altered if these 969 ballots had been cast for the contestants and thus the election was void.

Of course, holding thus simply means that the incumbents in these offices at the time this election was held void will hold over until their successors are elected and qualified by law. Conger v. Roy, 151 Tenn. 30, 267 S.W. 122.

The contestants have likewise appealed and assigned error due to the fact that the trial judge after holding as above didn't declare them elected on the basis of holding these 969 absentee ballots void. The argument in response to this assignment is that there was no showing how these 969 absentee ballots were cast, whether for the contestants or the contestees. This record, as made up, does show that these 1,028 ballots were marked by the Commissioners as Democratic ballots and the contestees were the Democratic candidates and thus it might be argued that there is an assumption that all the ballots were cast for them. Of course, in a contest of this kind such a presumption cannot be given legal validity, because this is not necessarily always true. In modern times many voters vote for either one or the other side of the contest. Because they are denominated as Democrats does not necessarily say that they voted for all Democratic candidates. Another thing, too, the trial judge here was not justified under this record in declaring contestees elected even though these ballots were held void. His judgment in the matter is justified. We therefore overrule and deny the contestants' assignments and application to be declared elected.

These causes for the first time bring to the attention of the Court a construction of the absentee voting statute of this State. This statute is Chapter 164, Public Acts of 1949, as codified beginning at § 2-1601, T.C.A. et seq. We find in the record a well thought out, well reasoned and excellent memorandum opinion of the trial judge on the questions involved. This opinion shows that he had given the matter much thought and research. In our reading of this record we have read the briefs of both sides two or three times, have read the entire absentee ballot voting act once or twice and the main sections here involved several times. After spending more than a week working on this case we have concluded that the trial judge has reached the correct legal conclusion and his reasoning is so apt that we in this opinion are going to adopt as our opinion a large porton of his opinion.

In the outset the Legislature by Section 1 of the Act, which is codified as § 2-1601, T.C.A., stated its intention in passing this absentee voting law. It is clearly shown by reading this Section that the intent of the Legislature in passing such an Act was to prevent fraud in elections by use of absentee votes, and in doing so the judges of the election were specifically directed to receive no absentee votes unless this Act had been literally complied with, and all of its provisions were mandatory. This very Section within itself shows that it was the intention of the Legislature in enacting this Act that the Act should be given a strict construction rather than a liberal construction. As said by the Supreme Court of Florida, speaking through its Chief Justice, in State ex rel. Whitley v. Rinehart, 140 Fla. 645, 192 So. 819, 'Election laws should be construed liberally in favor of the right to vote but this is not the rule as to absentee voting laws. Being in derogation of the common law, they should be strictly construed. The reason for the difference is that purity of the ballot is more difficult to preserve when voting absent than when voting in person. Guice v. McGehee, 155 Miss. 858, 124 So. 643, 125 So. 433; Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159; In re Baker, 126 Misc. 49, 213 N.Y.S. 524; Opinion of Justices, 44 N.H. 633.' This is the general rule though there are some cases to the contrary but upon reading them we generally find that there are factual situations which shade or bring about probably a different interpretation. The Florida court further said: 'This must be the rule; otherwise purity of the ballot is cast to the discard.' See also on the subject Sutherland on Statutory Construction, 3rd Ed., Horack, § 7215, page 455, which section concludes with a quotation from a New York case thus:

'Recognizing the supreme importance of the right of franchise in our democracy and zealous in guarding the exercise thereof against anything and everything of a doubtful nature, the courts, in an endeavor to keep elections, primary and general, free from fraud, have uniformly insisted upon strict compliance with provisions of the Election Law. * * *'

Then we quote, which seems to us, a very reasonable statement from the Nebraska court in Miller et al. v. Mersch, 152 Neb. 746, 42 N.W.2d 652, thus:

'It is the policy of the law to prevent the disfranchisement of qualified electors who have cast their ballots in good faith by requiring only a substantial compliance with the election laws of the state. The privilege of voting, though the voter is absent from the voting precinct at the time of the election, requires a departure from the general rule governing the method of exercising the right to vote. Voting by mail constitutes a special privilege and requires a stricter adherence to the legislative conditions imposed upon its exercise.

'Compliance with the conditions imposed by the statutory grant is essential to the exercise of the right. The act itself prescribes the manner of its exercise when it states that an absentee elector may vote at such election only in a manner prescribed in the act.' (Citing authorities).

This statement absolutely confirms the first Section of this absentee voting law of our State, above referred to.

On this same subject we likewise turn to a Minnesota case, that of Wichelmann v. City of Glencoe, 200 Minn. 62, 273 N.W. 638, where a number of very pertinent observations are made in reference to the question here being discussed. Among other things it is said:

'Absentee voting is an exception to the general rule and is in the nature of a special right or privilege which enables the absentee voter to exercise his right to vote in a manner not enjoyed by voters generally.'

And the further observation is made that the statute prescribes a condition which is precedent to absentee voting and that the statute is mandatory, all of which is in compliance, or fits in with the requirements of our statute herein above referred to. This Minnesota court then says this:

'If ballots can be passed out for distribution without the making and filing of a verified application by the electors, the bars have been let down altogether. Frauds and corrupt elections are bound to result. It opens the door...