Jared v. Fitzgerald

• Decision Date: 01 June 1946
• Citation: 195 S.W.2d 1,183 Tenn. 682
• Parties: JARED et al. v. FITZGERALD et al.
• Court: Tennessee Supreme Court

195 S.W.2d 1

183 Tenn. 682

JARED et al. v. FITZGERALD et al.

Supreme Court of Tennessee.

June 1, 1946

Error to Circuit Court, Davidson County; E. F. Langford, Judge.

Suit by John C. Jared and others against J. T. Fitzgerald and others to have the Davidson County Democratic primary election held on November 15, 1945, declared void. To review a judgment sustaining a demurrer to the petition, the defendants bring error.

Affirmed.

Whitworth Stokes and Lewis S. Pope, both of Nashville, for complainants.

Albert Williams, Roberts & Roberts, Elkin Garfinkle, J. Carlton Loser, R. C. Boyce, and Joe Brown Cummings, all of Nashville for defendants.

PREWITT Justice.

The circuit judge sustained a demurrer to the petition and defendants below have appealed.

The petition seeking to have the Davidson County Democratic Primary Election held on November 15, 1945, declared illegal and void, was filed on December 22, 1945, by some seventy-seven residents of Davidson County as members of the Democratic party and as citizens and taxpayers of said county. No candidate in said primary joined in the petition. It was filed against the members of the Davidson County Executive Committee, which includes the members of the Davidson County Primary Committee, and all candidates whether successful or unsuccessful, who participated in said primary.

The petition undertook to set out many violations of the general primary elections law and of Chapter 738 of the Private Acts of 1927 (this Act being applicable to Davidson County), so as to render the primary election void.

No attack is made on the fairness of the result of the primary; or, in other words, it is not claimed that the candidates nominated did not in fact receive a majority of the votes legally cast; and there is no charge of fraud and no averment that the result would have been different in the absence of the illegalities contended for by the petitioners.

It might be observed here that where the charge is made that an election is void because of illegal votes, it must affirmatively appear from the petition that a sufficient number of illegal votes were cast to change the result of the election. Maloney v. Collier, 112 Tenn. 78, 83 S.W. 667; Morrison v. Buttram, 154 Tenn. 679, 290 S.W. 399.

There is no charge of fraud or that the election was so illegal and fraudulent as to vitiate the whole election. State ex rel. Davis v. Kivett, 180 Tenn. 598, 177 S.W.2d 551.

As before stated, no candidate in the primary election of November 15, 1945, has joined in the petition in this case. The petitioners bring this suit as citizens, taxpayers, and members of the Democratic party in Davidson County. There is no showing in the petition that the tax burden of petitioners was increased by the holding of said primary in the manner set forth in the petition; also, there is no showing that petitioners have, as citizens, any interest not common to the other citizens of Davidson County, and under such circumstances the suit cannot be maintained. Patton v. Chattanooga, 108 Tenn. 197, 65 S.W. 414; Wright v. Nashville Gas & Heating Co., 183 Tenn. 594, 194 S.W.2d 459.

It is also insisted that the primary election of November 15, 1945, was void on the ground that candidates were required to accompany their application with an entrance fee to cover the expenses of the primary.

It might be further observed that no attack is made upon the constitutionality of the Private Act of 1927, wherein it is provided that the expenses of holding primary elections shall be borne by the political party holding the same and such expenses shall be defrayed in such manner as may be provided by the governing authority of the political party.

In the instant case, there was no violation of the Act of 1927 because of the way it provided for the expenses of the primary to be paid. No constitutional question is involved, because the constitutional prohibition against class legislation is directed against the General Assembly.

The petitioners rely chiefly on the case of Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, wherein a primary law was stricken down because it required the candidates to pay certain sums of money in order to become candidates in the primary. The vital difference between the Ledgerwood case and the instant case is that in the Ledgerwood case the bill was filed before the primary attacking the statute under which it was to be held as unconstitutional. In the case at bar, the primary was held on November 15, 1945, and the bill was filed afterwards, on December 22, 1945. Here the primary had already been held; and, as before stated, there was no charge of illegality in the voting or that the election was fraudulently held.

There are other assignments of error which we have fully considered and which are overruled.

It results that we find no error in the judgment of the circuit judge and it is affirmed.

NEIL J., delivered the following concurring opinion, to which all members of the Court agreed.

NEIL, Justice (concurring).

While I concur in the views expressed by Mr. Justice PREWITT, I am of opinion the trial court should be affirmed upon other grounds and for different reasons.

The object of the petition is (1) to have the Court declare the primary election void because it was held in violation of Chapter 738 of the Private Acts of 1927 and the general law; (2) to enjoin the county Democratic Executive Committee from certifying the returns and declaring any candidate the nominee of the Democratic Party; and (3) to have 'their rights (the named parties in the suit) declared and protected by proper judgment of this Court.'

It is my view that petitioners' suit must fail because (1) the circuit court was without jurisdiction of the case; (2) the petitioners have no such rights or interests in the issues involved as entitles them to sue under the Declaratory Judgments Law, Code 1932, § 8835 et seq., and (3) the character of relief prayed for is hypothetical and remote and the decree of the Court would not be binding upon the parties plaintiff and defendant.

The petition cannot be adjudged to be an election contest because none of the defeated candidates are contesting the nomination of their successful opponents in the election. There is no averment that any citizen was deprived of his or their right to run as a candidate for any office, or that any voter was deprived of his or their right to vote, or that the votes as cast where in any sense fraudulent.

The statutes under which the election was held are considered to be valid. In Catlett v. Knoxville, S. & E. Railroad Co., 120 Tenn. 699, 112 S.W. 559, it was held, '[that] a suit to invalidate the declared result of such election should be brought in the chancery court, which has jurisdiction of controversies of this kind.'

There is no allegation in the petition of any particular right or privilege that has been violated. The petitioners fail to point out wherein any one of them has suffered any wrong or has been deprived of any legal right.

Conceding that the plan of the primary committee was illegal in that it was in violation of law to require of candidates an entrance fee, it does not appear that any of the petitioners desired to be candidates in the election, nor is it alleged that they were deprived of the right to vote for any person who desired to run in said election without paying a qualification fee, or for any other alleged irregularity.

Had petitioners filed their petition in the chancery court to enjoin the holding of the primary election because of the alleged illegality of the plan as announced by the primary committee, it would have presented a justiciable issue. It is not true, as alleged in the petition, that all candidates were...