Marshall v. Kerns

• Decision Date: 30 September 1852
• Citation: 32 Tenn. 68
• Parties: MARSHALL v. KERNS.
• Court: Tennessee Supreme Court

32 Tenn. 68

MARSHALL

v.KERNS.

Supreme Court of Tennessee.

September Term, 1852.

The facts of this case are very fully stated in the opinion. At the May term, 1852, of the circuit court for Campbell county, Anderson, R. M., judge, presiding, this judgment was rendered: “It is considered by the court that the plaintiff is not entitled to be inducted into said office, and is not entitled to be qualified as clerk of said court, and that said election has been successfully contested by the defendant.” And, therefore, the defendant, who was in office, was permitted to renew his official bonds, etc. From this judgment the plaintiff appealed in error.

Heiskell, for plaintiff in error.

Sneed & Temple, for defendant in error, argued: “The Constitution requires the counties to be laid off into civil districts. Art. 6, sec. 15. The Legislature carried out this constitutional provision. Act of 1835, ch. 1, secs. 1, 2, and 4 (C. & N. 254, 255). The election, to be valid, must be held at the places so appointed (Act of 1835, ch. 2, secs. 1, 4), and the sheriff or person authorized must certify that these acts have been complied with--that ‘such election’ has been held.

Act of 1835, ch. 2, sec. 5 (C. & N. 276). If the sheriff or his officers may omit to open and hold election at one, he may omit all but one, and thus he may elect whom he chooses to all offices.”

Totten, J., delivered the opinion of the court.

At the May term, 1852, of the circuit court of Campbell, James M. Marshall produced a formal certificate of his election as clerk of said court, and also proper official bonds with sureties, and moved the court to induct him into said office. Whereon George W. Kerns, the incumbent in said office, and late a candidate for reappointment in the election by the people, moved the court for leave to defend and resist the said motion, and it was granted to him.

The certificate of the coroner, acting as sheriff, states “that at an election held at the several district election grounds in my county, on the sixth day of March, 1852, according to law, James M. Marshall was duly elected to the office of circuit-court clerk.” And he states the vote: James M. Marshall, 199, and George M. Kerns, 196; there being a majority of three votes for Marshall.

It was proved by witnesses that the election was not held in the fourth civil district of said county. The officer appointed to hold it failed and neglected to attend at the place of voting. There were some fifty or sixty voters resident in that district, and some twenty of them attended on the day at the place of voting. The coroner had notice, before his return, that the election was not held in this district. It was a case of wilful omission on the part of the deputy appointed to hold it, but we are not prepared to say that the neglect was for any fraudulent design to favor either of the candidates. The proposed new county of Union was to include this district, and it was apprehended by the officer that if the election were held in the district it might prejudice the efforts that were then being made to establish the new county by a vote of the people. The proposed new county has never had a legal existence.

His honor the judge held the election as void,...