Maloney v. Collier
| Decision Date | 28 November 1904 |
| Citation | 83 S.W. 667 |
| Parties | MALONEY v. COLLIER. |
| Court | Tennessee Supreme Court |
Lucky, Sanford & Fowler, for appellant. S. G. Shields, Jerome Templeton, Horace Vandeventer, Chas. T. Cates, Jr., and J. W. Caldwell, for appellee.
This is a contested election case, brought before the chancellor presiding over the chancery court of Knox county.
The contestant, G. L. Maloney, alleges that upon the face of the returns for the August election, 1902, as compiled by the canvassing board, he received in Knox county, as a candidate for re-election as county judge, 3,322 votes, and the contestee, A. Donald Collier, for the same office, 4,816 votes, on the face of said returns, and that the certificate of election was accordingly issued to the contestee. The petition sets out the votes by precincts as they were returned for each of the candidates, and they make the respective totals above indicated.
The petition attacks specially the following wards in the city of Knoxville: First, Third, Fifth, Sixth, Seventh, Ninth, and Eleventh. It also attacks the Seventeenth and Eighteenth Civil Districts of the county.
The vote in the wards referred to as shown by the face of the returns was as follows:
Wards in the City of Knoxville
For For
Contestant. Contestee
1st Ward ............... 114 211
3rd " ............... 44 150
5th " ............... 53 265
6th " ............... 59 302
7th " North ......... 84 232
7th " South ......... 15 504
9th " North ......... 94 362
9th " South ......... 70 337
11th " ............... 118 522
______ ______
641 2885
Civil Districts of the County
For For
Contestant Contestee
17th District, Asbury.. 50 13
17th " Pickles.. 1 23
18th " ........ 10 44
____ _____
61 80
The total, therefore, shown by the face of the returns, appearing thereon for contestant in these special wards and civil districts, is 702; the total for the contestee for the same wards and civil districts on the face of the returns is 2,965. The two together made 3,667.
This total, if all should vote one way, would be sufficient to change the result of the election. If it should all be given to the contestee, it would run his total vote in the county up to 5,518, and would reduce contestant's total vote to 2,620. On the other hand, if it should all be given to Maloney, it would run his vote up to 6,287 and would reduce the vote of Collier, the contestee, to 1,851; and the latter having received very much the largest number of votes in the said wards and civil districts specially attacked.
The allegations of the petition with respect to these several wards and civil districts — especially the former — are very voluminous, and it is unnecessary to reproduce them here. It is sufficient to say that, while the petition contains many statements far too general and vague to come within the designation of valid pleading, yet we are of the opinion that enough is stated therein in respect of the wards and civil districts referred to, which, if sustained, would necessarily result in a judgment that the election was void in the several said wards and civil districts.
If the election should be held void in the said wards and civil districts referred to, the necessary result would be that the entire election of the county would have to be held void as between the contesting parties, because, as before stated, there were enough votes polled in the said wards and civil districts to change the result of the election in the county if all should be treated as voting one way, which is the legal test applicable under such circumstances.
This is one ground of relief set out in the petition. Another ground alleged is that upon a purging of the polls, casting out all of the votes improperly counted for contestee, as alleged in the petition, and adding to the column of the contestant all of the votes really received by him at the election, as alleged in the petition, the result would show that contestant was really elected.
The specifications contained in the petition upon this subject are as follows:
First Ward: That contestant received over 160 legal votes in this ward, of which over 46 were not counted for him in the returns, as they should have been, but were unlawfully cast aside, destroyed, miscalled, or otherwise miscounted or not counted, and taken away from contestant by fraudulent and illegal methods and practices; and that over 50 votes counted for contestee in said ward were never cast for him at all, and should not have been counted for him, but were so counted.
Third Ward: That in this ward contestant received over 94 legal votes, more than 50 of which were not counted for him, but should have been counted; and that over 50 votes counted for contestee in said ward were illegal, and should not have been counted for him, but were counted.
Seventh Ward South: That contestant received over 150 legal votes in this precinct, over 135 of which were not counted for him in the returns, as they should have been; and that over 350 votes counted for contestee in this precinct were illegal and fraudulent, and should not have been counted for him but were counted.
Ninth Ward North: That contestant received more than 140 legal votes in this precinct, over 46 of which were not counted for him in the returns, as they should have been; and that over 100 votes counted for contestee in this precinct were fraudulent and illegal, and should not have been counted for him, but were counted.
Ninth Ward South: That contestant received over 150 legal votes, more than 80 of which were not counted for him on the face of the returns, as they should have been; and that over 157 votes counted for contestee in this precinct were fraudulent and illegal, and should not have been counted for him, but were so counted.
The Eighth District, Powell's Station: That contestant received 80 legal votes, but only 40 were counted for him.
Tenth District, Concord: That at this precinct contestant received 85 legal votes, but only 40 were counted for him.
Tenth District, Campbell's Station: That at this precinct contestant received 40 votes, but only 20 were counted for him.
Counting up the votes of which contestant claims to have been thus illegally deprived, they number 452.
Counting up the votes thus alleged to have illegally reckoned for contestee, they number 707.
If we add to the total vote shown by the face of the returns the 452 of which contestant claims he was illegally deprived, the footing shown is 3,774.
If we deduct from the contestee's total vote shown by the face of the returns (4,816) the above-mentioned number of votes (707) so alleged to have been illegally counted for him, the subtraction still leaves standing for him 4,109 votes.
That is, upon the face of the petition, after adding to contestant's side of the account all of the votes of which he specifically claims he was deprived, and deducting from the contestee's total all of the votes which the petition specifically claims were illegally counted for him, there still remains a majority of 355 votes in favor of contestee.
With respect to the Fifth Ward, the petition contains the following general allegation:
"Contestant charges and avers that he received many legal votes in said ward, many of which were not counted for him in the returns, as they should have been, but were unlawfully cast out, destroyed, miscalled, or otherwise miscounted by means of one or more of the fraudulent and illegal practices above set out; and that many votes counted for contestee in said ward were fraudulent and illegal for one or more of the reasons stated, or were never cast for him at all, and should not have been counted for him, but were counted for him by means of one or more of the fraudulent and illegal practices above set out."
Here it is observed that the petition states no number of votes whatever, but simply says "many legal votes." This is too general and indefinite for any purpose whatever.
As to the Sixth Ward, the same allegation is made as to "many legal votes," but no number is specified. This is also too general.
The same allegation is made as to the Seventh Ward North; that is, merely the expression "many legal votes," no number being specified. This is likewise too general and indefinite.
As to the Eleventh Ward, no allegation on this subject is made.
Nor is there any allegation upon this subject as to the Second, Fourth, and Tenth Wards.
As to the Eighth Ward, it is alleged that the contestant was deprived of "a number of votes," but no number is specified. This is too general.
No allegation upon the subject, specifying any number of votes lost to the contestant, is made as to any other civil district in the county besides above mentioned.
The petition closes with the following general allegations as the summing up of the contentions based upon the preceding specifications:
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