Southall v. Billings

• Decision Date: 05 December 1963
• Parties: , 213 Tenn. 280 W. M. (Ben) SOUTHALL, Appellant, v. Ben BILLINGS and Alfred Peeler, E. H. Wooten, Jr., and Merrill Tatlock, Election Commissioners, Appellees.
• Court: Tennessee Supreme Court

Page 844

375 S.W.2d 844

17 McCanless 280, 213 Tenn. 280

W. M. (Ben) SOUTHALL, Appellant, v. Ben BILLINGS and Alfred Peeler, E. H. Wooten, Jr., and Merrill Tatlock, Election Commissioners, Appellees.

Supreme Court of Tennessee.

Dec. 5, 1963.

John Parker Hills, Alexander W. Dann, Jr., Dann & Hills, Memphis, for appellant.

Tipton & Tipton, William Grugett, Covington, for appellees.

WHITE, Justice.

This proceeding is brought by W. M. (Ben) Southall against Ben Billings, the Sheriff of Tipton County, Tennessee, and Alfred Peeler, E. H. Wooten, Jr., and Merrill Tatlock, the Election Commissioners of that County, for the purpose of enjoining said Election Commissioners from 'tampering with, altering or destroying the contents of the general election ballot boxes for all the precincts in Tipton County, those contents being more particularly described as, but not limited to, the ballots, the applications for ballots, the certification of results of the election officials of the precincts, the tally sheets and the poll books', and for the purpose of having the election for Sheriff of Tipton County, Tennessee, which was held on August 2, 1962 'declared to be null and void because of fraud', and, finally, that a special election be hald for the election of Sheriff of Tipton County. The original bill was filed on August 16, 1962.

Contestee Ben Billings demurred to the petition on the grounds that it did not set forth the matters relied upon with sufficient definiteness and certainty and that the charges of fraudulent acts were vague and general instead of being definite and specific, all of which will be treated as one ground herein; a second ground of demurrer was that the allegations of the petition, taken as a whole, failed to show enough illegal votes cast in the three challenged precincts to change the result of the election or to render such result uncertain or indefinite.

The election commissioners demurred on grounds which can be treated as one herein, being that they were not proper or necessary parties to the suit.

The trial court sustained each and every ground of both demurrers and dismissed the bill. The injunction against the election commissioners which had been previously granted remains in effect.

The petition herein, which was dismissed on demurrer, alleges that the complainant was a candidate for the office of Sheriff of Tipton County in the General Election held on August 2, 1962. The certified results of such election show that the complainant received 2984 votes, Shankle received 1927 votes, and Billings received 3165 votes, being a plurality of 181 votes. Billings was certified by the election commissioners as the successful candidate to take office on September 1, 1962.

We take judicial notice of the fact that Billings is now in office and has been serving as Sheriff since September 1, 1962.

The purpose of this proceeding is to have the election 'declared null and void because of undue influence and incurable uncertainty of the results * * *.' It is alleged by the complainant that 'many election officials and individuals conspired with candidate Billings or others in his behalf, for the purpose to buy or steal for him enough votes to make his election a certainty.'

These charges, that many election officials and individuals engaged in a conspiracy with Billings and others in his behalf, are broad and general in character. There is another charge in the bill that approximately $50,000.00 was spent in behalf of Billings on election day for the purpose of bribing voters, and that general dishonesty was widespread throughout the county. These, too, are broad, general and sweeping charges.

The contestant alleges further that 'the open, notorious, and gross fraud practiced in the precincts' of Randolph, Solo and Gilt Edge 'renders the election void in each and that the election for office of Sheriff of Tipton County is, therefore, null and void in toto for undue influence and the incurable uncertainty of the result.' Again, these charges are general.

Certain election officials at said voting precincts were charged with acting 'throughout the day with blatant disregard to the law and the voting rights of those who came to the polls by marking peoples' ballots under various pretenses', and 'that there was no secret balloting in this precinct (Randolph)', and 'that Billings literature was being freely passed within the polling place.'

It is charged that many applications for ballots were signed by other than the true applicant and that at the polling place (Randolph) one A. B. Lott was openly and notoriously handing out money on behalf of the candidacy of Billings.

At the Randolph precinct Billings received 226 votes, Shankle received 5 votes, and the complainant, Southall, received 17 votes.

At the Solo precinct it is charged that the officer of the election, Bobby Anderson, marked approximately 75 of the 202 ballots cast and, in concert with Wilbur Hill, paid voters, not named, $4.00 or $5.00 each. It is further charged that no provision was made for secret balloting at this voting precinct.

The petitioner also says that applications for ballots were fraudulently signed and many ballots were fraudulently cast and counted.

At the Solo percinct Billings received 95 votes, 73 votes were cast for Shankle, and Southall received 28 votes.

It is next charged that the voting at the Gilt Edge box was fraudulently conducted. No provisions were made for voting secretly, 'many times five people would be voting at once'.

Two election officials 'personally 'assisted' with 30% of the ballots cast', meaning that they either marked the ballot or showed the person voting how and where to mark it and that money was being passed at the polling place. 'Billings for Sheriff literature was being illegally passed inside the polling place and money was changing hands outside the polling place; contestant alleges that many ballot applications were fraudulently signed by other than the true applicant and that those votes were subsequently fraudulently cast and counted.'

At the Gilt Edge precinct Billings received 259 votes, Shankle received 10 votes, and Southall received 114 votes.

In regard to all three of the polling places referred to, it is charged as to each that 'when all the votes in this box are cast one way for contestant he then has a plurality of the votes cast for the office of Sheriff and the entire election is, therefore, rendered null and void for uncertainty of result.'

Billings' term as Sheriff ends September 1, 1964. The petition herein was filed on August 16, 1962. The demurrers were filed on November 17, 1962. The order of the court sustaining the demurrers was entered on January 22, 1963. The appeal bond herein was filed on February 5, 1963, and the entire record was filed in the office of the Clerk of this Court at Jackson on March 7, 1963. An order was entered on application of the contestant on March 13, 1963 to remove this cause from the April Term Calendar.

Excellent arguments were made at the bar of this Court on November 5, 1963. If this case is reversed and returned to the lower court for answer and the taking of proof and a hearing thereon by the court, the term of Billings will have, in all probability, been completed.

Be that as it may, it is our duty to resolve the issues presented to us by this appeal.

It is not our intention to, nor do we, pass upon the merits of this contest. We are concerned only with the sufficiency of the averments in the petition to sustain it as a matter of law and not as a matter of fact. It is well established as part of the procedural law of this State that demurrers are not looked upon with favor and are sustained only when it clearly appears that the averments and charges upon which the complaint rests are fatally defective in substance.

The general object of a demurrer is to save costs and bring the litigation to a speedy close. Section 310, Gibson's Suits in Chancery.

The averments of the bill must be taken as true when the case stands on bill and demurrer. Mayor of Nashville v. Singer, etc., Fertilizer Co., 127 Tenn. 107, 153 S.W. 838 (1912), and many other cases.

This Court must take the averments of the bill as true on a review of the chancellor's decree sustaining the demurrer. Prince v. Lawson, 167 Tenn. 319, 321, 69 S.W.2d 889 (1934); Manley v. Belew, 190 Tenn. 698, 231 S.W.2d 353 (1950); Large v. Dick, 207 Tenn. 664, 343 S.W.2d 693 (1960).

It has been repeatedly held that by demurring the defendant confesses the truth of all properly pleaded facts as set forth in the complaint and relevant inferences of fact deductible from such alleged facts. Zager v. Cobb, 192 Tenn. 79, 237 S.W.2d 560 (1951); Williams v. McElhaney, 203 Tenn. 602, 315 S.W.2d 106 (1958).

However, the conclusions of a pleader which have no foundation in fact are not admitted by demurrer. In other words, a demurrer admits only facts that are well pleaded and reasonable inferences of fact but not deductions, inferences or conclusions of law. See Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661 (1953); In re Eppinger's Estate, 207 Tenn. 53, 336 S.W.2d 28 (1960).

Generally in Tennessee there are two grounds upon which there may be an election contest. (1) The election is valid and the contestant won the election; and (2) the election was null and void for some valid reason or reasons. This suit is brought for the purpose of having the election declared null and void and if it is finally so determined, then a new election may be held in order to fill the office.

In the case of State ex rel. Davis v. Kivett, 180 Tenn. 598, 177 S.W.2d 551 (1944), this Court affirmed the action of the chancellor in holding that the election for county judge in that case was 'so permeated with fraud and illegality as to compel the conclusion that it was not in fact, an expression of the will of the electors, and that, therefore, the Chancellor was correct in holding that...