State ex rel. Caldwell v. McQueen

• Citation: 159 S.W.2d 436,178 Tenn. 478
• Parties: STATE ex rel. CALDWELL v. McQUEEN et al. STATE ex rel. REECE v. SAME.
• Decision Date: 28 February 1942
• Court: Supreme Court of Tennessee

159 S.W.2d 436

178 Tenn. 478

STATE ex rel. CALDWELL v. McQUEEN et al.

STATE ex rel. REECE v. SAME.

Supreme Court of Tennessee.

February 28, 1942

Error to Circuit Court, Johnson County; Ben Allen, Judge.

Mandamus proceedings by the State, on relation of Walter Caldwell against Marcus McQueen and others, wherein the State, on relation of U. G. Reece, moved to be allowed to file an intervening petition. From an adverse decree, Marcus McQueen and Tom Walsh, as members of the Election Commission of Johnson County, appeal in error.

Affirmed.

Guinn & Mitchell, of Johnson City, for plaintiff in error, Reece.

Wallace Taylor and E. M. Johnston, both of Elizabethton, for defendant in error.

DeHAVEN Justice.

Walter Caldwell and U. G. Reece were candidates for the office of mayor of the town of Butler, in Johnson County, Tennessee. At the election held on August 14, 1941, the judges holding the election and the returning officers certified to the Election Commissioners of Johnson County that Walter Caldwell had received 163 votes and U. G. Reece 165 votes. The judges of the election rejected four ballots cast by absentee voters. The four ballots, unopened, but with reasons for rejection noted thereon, were not deposited in the ballot box, but put in a separate container, and delivered to the Election Commissioners, along with the ballot boxes, scroll books and tally sheets.

On Saturday before the Election Commission was to meet on Monday and canvass the returns, Caldwell filed his petition herein as relator, for alternative writ of mandamus, commanding the three members of the Election Commission to count the four absentee ballots at their meeting on Monday, August 18, 1941 or to show cause why these ballots should not be legally counted and tabulated. At the meeting held on Monday, the Election Commission opened the four absentee ballots and counted them for Caldwell, thereby changing the result so that Caldwell was given 167 votes and the vote of Reece remaining at 165. A certificate of election was issued to Caldwell.

Reece was not made a party to the suit, nor was it prayed that he be notified of the proceeding. Reece appeared and moved to be allowed to file his intervening petition for mandamus to require the Election Commission to reassemble and issue to him a certificate of election in accordance with the face of the returns. To this petition, Caldwell and two members of the Election Commission, in their official capacity, demurred upon a number of grounds. The court overruled the demurrer, holding that if there was a question of the propriety of intervention the petition could be treated as an independent suit and tried with the original proceeding. The trial court, on the hearing, held that the Election Commissioners had never discharged their lawful duty, and that the certificate of election issued to Caldwell was null and void, and ordered a certificate of election to be issued to Reece. From the decree of the trial court two members of the Election Commission, in their official capacity, appealed in error to this court and assigned errors. Caldwell did not perfect an appeal, nor has he filed the record for writ of error.

Under one group of assignments of error appellants assert that the trial court erred in allowing an intervening petition to be filed for the reason that at the time Reece had then pending an election contest over the office of Mayor and through that proceeding had an adequate remedy to test the rights of Caldwell to hold the office and test the legality of the certificate of election which Caldwell held. By the original proceeding, the court acquired jurisdiction to determine the question involved and could not be ousted of its jurisdiction by the action of the Election Commissioners. The fact that Reece had an election contest pending in no way barred his rights to compel the Election Commissioners, by mandamus, to perform their ministerial duty and issue a certificate of election to Reece, in accordance with the vote shown by the face of the returns. Code, § 9495 provides that the defendant in the writ of mandamus shall notify any third person claiming title to or interest in the matter in controversy and such third person may, upon application, be made a defendant, and permitted to file an answer, upon giving security for costs. The...