Morrison v. Buttram

• Decision Date: 20 December 1926
• Parties: MORRISON v. BUTTRAM.
• Court: Tennessee Supreme Court

290 S.W. 399

154 Tenn. 679

MORRISON v. BUTTRAM.

Supreme Court of Tennessee.

December 20, 1926

Appeal from Chancery Court, Anderson County; J. H. Wallace Chancellor.

Bill by J. H. S. Morrison against W. H. Buttram to contest defendant's election to the office of judge of the Nineteenth judicial circuit, or to have him declared ineligible. Judgment for complainant, and defendant appeals. Reversed.

H. B Lindsay, L. H. Carlock, and Fowler & Fowler, all of Knoxville, for defendant.

COOK J.

The bill was filed to contest the election of the defendant to the office of judge of the Nineteenth judicial circuit, and in the alternative to have him declared ineligible to hold the office. It shows that on the face of the returns from all the counties of the circuit complainant received 7,229 votes and defendant 7,575 votes. Then follows the statement that--

"While there were many irregularities in some of the voting places, and irregularities in some precincts, of such flagrant character, as petitioner believes and avers render the election in said precincts absolutely void, yet as the same, of themselves alone, are not determinative of the validity of the election as a whole, petitioner admits the validity of the election, but attacks the same on the ground hereinafter specifically set out."

The attack upon the result is confined to five precincts of Scott county, four precincts of Fentress county, three precincts of Anderson county, and three precincts of Claiborne county. At these voting places complainant received on the face of the returns 645 votes, and defendant 1,571 votes, and complainant charges that of this total of 2,216 votes 1,271 of them were cast by persons liable to the payment of poll tax, and who voted without paying the tax as required by law. It is charged that the returns from the precincts mentioned should be purged of the illegal votes, that is, votes alleged to have been cast by persons named in the bill as having voted without payment of the tax, and complainant insists that, when the returns are purged of these votes, the result will be a majority in the circuit sufficient to elect him to the office.

The bill contains no allegation or statement showing for whom the alleged illegal votes were cast, and there is no suggestion in the bill that the illegal votes, or the greater number of them, were cast and counted for the defendant. Neither does the bill charge that it can be shown by direct or circumstantial evidence for whom the illegal votes were cast. Complainant rests his claim to the office upon the allegation that the persons named in the bill were subject to payment of a poll tax, as a qualification to voting, and that they voted at the precincts mentioned without paying the tax, hence voted illegally, wherefore the returns in those precincts should be purged to the extent of such illegal votes, and deducted, under the rule indicated in Moore v. Sharp, 98 Tenn. 491, 41 S.W. 587, from the vote of each candidate in the proportion that the total vote bears to the vote of each at the precinct where the illegal ballots were received.

This proposition ignores the rule that returns certified by the election officers are conclusive of the result until overcome by evidence indicating the inclusion of illegal ballots, or an illegal count of the ballots. The affirmative is with the complainant. He is the moving party, and the burden is upon him to establish his claim to the office by showing that, contrary to the prima facie case made out by the returns, he, and not the defendant, was the choice of the greater number of legal voters. The bill must state a cause of action against the defendant, and show a right of action in the complainant. Nelson v. Sneed, 112 Tenn. 36, 83 S.W. 786. This requirement is met in election contests only by showing that the complainant, and not the defendant, received a majority of the legal votes cast. It makes no difference to complainant how many illegal votes were cast and counted, if none of them form an essential part of the total that makes up a majority certified by the election officers. Red River Furnace Co. v. Tennessee Central R. Co., 113 Tenn. 697, 87 S.W. 1016.

The bill ignores the possibility that 645 of the 1,271 illegal votes could have been cast for complainant, and only 626 of them for defendant still leaving the defendant a clear majority of the legal votes.

In Potter v. Robbins, 290 S.W. 396, decided December 11th, Mr. Justice Swiggart, speaking for the court, said:

"The rule that illegal votes cast in a given election precinct may be apportioned between the candidates according to the total vote received by each candidate in the particular precinct when it does not appear from the evidence for whom the illegal votes were actually cast, was applied in Moore v. Sharp because the circuit judge stated in the record that counsel on both sides agreed that it should be applied. Furthermore, the opinion of this court in that case states that 'On the trial below it was developed that illegal votes were polled, but it was impossible to ascertain for whom they were cast.' It appears, therefore, that counsel agreed to the application of the rule of apportionment only after it was developed that it was impossible to ascertain for whom the illegal votes were cast."

After reviewing the authorities, the opinion reads:

"In testing the sufficiency of the petition in the present cause, as showing prima facie a state of facts, which, if true, would entitle the petitioner to the office for which he was a candidate, we are unable to apply the rule of apportionment of the illegal voters, in the absence of any averment that the petitioner was informed and believed that the illegal votes specified, or

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