Peeler v. State ex rel. Beasley

• Decision Date: 09 June 1950
• Citation: 190 Tenn. 615,231 S.W.2d 321,26 Beeler 615
• Parties: PEELER et al., County Election Com'rs, Tipton County, v. STATE ex rel. BEASLEY et al. 26 Beeler 615, 190 Tenn. 615, 231 S.W.2d 321
• Court: Tennessee Supreme Court

Page 321

231 S.W.2d 321

PEELER et al., County Election Com'rs, Tipton County, v. STATE ex rel. BEASLEY et al.

26 Beeler 615, 190 Tenn. 615, 231 S.W.2d 321

Supreme Court of Tennessee.

June 9, 1950.

B. C. Durham, Jr., Ripley, Robert Thomas, Ripley, Andrew D. Tanner, Nashville, for appellants.

L. E. Gwinn, Memphis, W. A. Shoaf, Covington, for appellees.

TOMLINSON, Justice.

This is a mandamus suit instituted by persons who hold permits to sell intoxicating alcoholic beverages in Tipton County. The Pipton County Election Commissioners were defendants. The suit is an immediate aftermath of an election held in Tipton County under Williams' Code, Sec. 6648.19 for the purpose of ascertaining whether the sale of such beverages would be continued in that county. The unofficial returns from all the voting precincts disclosed a majority in favor of such continuation.

When the Election Commission canvassed the vote for the purpose of certifying the result to the County Judge, a majority of its members decided to exclude all the votes cast at the Randolph and Wilkinsville voting precincts. The exclusion of these two precincts would result in a certification to the County Judge that a majority of the votes had been cast against a continuation of the sale of alcoholic beverages in Tipton County. The purpose of the suit instituted by those holding permits to sell intoxicating liquor is to require the election commission by mandamus to canvass all the returns, including those from the Randolph and Wilkinsville precincts and certify to the County Judge the result shown by the returns from all the precincts.

The chairman of the commission filed a separate answer wherein he stated that in his opinion the act of the remaining two members of the commission in declining to include the returns from the two precincts mentioned was illegal, and that in his opinion it was the duty of the commission to include the returns from these two precincts in ascertaining the results of the election.

The other two members of the election commission filed a joint answer. These two will hereinafter be referred to as respondents. The only reason assigned in that answer for their action in declining to consider the vote cast at the Wilkinsville box was that the return made by the election officers at that box disclosed a vote so large that the respondents were convinced that many illegal and fraudulent votes were cast there; hence, that they did not consider themselves to be under a duty to include in their computation any of the votes cast at that box.

As to the Randolph box, the answer of these respondents is that 222 of the 312 votes recited by the returns to have been cast there were illegal in that these 222 were either non-residents of the district or plural votes, or were recorded as voting when they did not actually attend the election, or had not paid the required poll tax. These alleged illegalities did not appear upon the face of the returns.

The Circuit Judge sustained the motion of the relators to strike the above allegations with reference to the two precincts from the answer of these respondents for the reason, among others, that the County Election Commission had no authority to go behind the returns of the officers holding the election, or consider the legality of the ballots cast in the election, since the duties of this commission were ministerial.

With further reference to the Randolph precinct, the answer of the respondents is that they did not consider the vote at that precinct because (1) the oaths of the officials signing the returns 'were not fully or perfectly executed'; (2) the poll books, tally sheets and returns were not signed nor certified by the majority of the judges of said election at this precinct; (3) one of the poll books showed 307 votes cast at that precinct while the other showed 305 such votes, while the returns recited a total vote of 312. The two poll books with returns attached were made exhibits either to the bill or answer.

When the case came on for hearing the relators moved for peremptory writ of mandamus upon their petition as amended, the answer of the respondents, and all the pleadings.

In an unusually well considered opinion the Circuit Judge granted the motion and ordered the issuance of the preemptory writ of mandamus directing the election commissioners 'to reassemble and canvass all of the precincts, including Wilkinsville and Randolph, and certify the result to the County Judge of Tipton County, Tennessee'. The respondents appealed, and have filed assignments of error making the questions hereafter stated and determined.

The Circuit Judge was correct in striking from the answer of respondents all allegations with reference to their failure to consider the votes at these two precincts because they were of the opinion that a majority of these votes were illegal and fraudulent. It was the duty of the officers holding the election at these two precincts to determine whether those offering to vote were legal voters, and the legality of the ballots cast. The action of the precinct election officers in this respect was of a judicial character and not subject to review by the County Election Commission, whose duties are ministerial. State ex rel. Caldwell v. McQueen, 178 Tenn. 478, 482, 159 S.W.2d 436, and the cases there cited.

An examination of the poll books discloses that the election officials at the Randolph precinct signed the 'before election' oath printed in the poll book, but the jurat was not signed by the one who may have administered the oath. So, the question at this point is whether the election commissioners were authorized by reason of this omission to reject the vote at this box.

While Browning v. Gray, 137 Tenn. 70, 191 S.W. 525, is not in point here because, among other reasons, that was on a hearing of an election contest, an observation made in that case as to the failure of the officers in an election at one or more precincts to take the oath is pertinent. That observation, 137 Tenn. at page 75, 191 S.W. at page 526, is this:

'It would confer upon the officers holding the election power to defeat the election entirely, and thereby enforce their arbitrary will upon the community. This would be a perversion of the purposes of an election * * *.'

The answer...