State ex rel. Robinson v. Hutcheson

• Decision Date: 08 May 1943
• Citation: 171 S.W.2d 282,180 Tenn. 46
• Parties: STATE ex rel. ROBINSON v. HUTCHESON et al.
• Court: Tennessee Supreme Court

171 S.W.2d 282

180 Tenn. 46

STATE ex rel. ROBINSON v. HUTCHESON et al.

Supreme Court of Tennessee.

May 8, 1943

Appeal from Chancery Court, Bledsoe County; J. Lon Foust, sitting by interchange for T. L. Stewart, Chancellor.

Mandamus by the State, on the relation of Solon L. Robinson, against James L. Hutcheson and others, Election Commissioners. From a decree for defendants, complainants appeal.

Affirmed.

Lewis S. Pope, of Nashville, for appellants.

Carlyle S. Littleton, of Chattanooga, for appellees.

NEIL Justice.

Solon L. Robinson and Wade H. Farmer were candidates for the office of County Judge of Bledsoe County in the general election held on August 6, 1942. On the face of the returns, as certified by the judges and officers of election from the various voting precincts, they each received 804 votes. The election commissioners failed to have Robinson's name printed on the official ballot and voters throughout the county wrote his name on the ballot and in some precincts used printed stickers with his name printed thereon, which were attached to the ballot and a cross mark placed opposite the name, thereby indicating the voter's choice. On Monday following the date of the election, the county board of election commissioners met to canvass the returns. Before the returns were counted and tabulated and the result announced, Robinson filed a sworn petition addressed to the board in which he averred that at the Cold Springs Precinct he had received twenty "sticker ballots" which the judges had failed to count and tabulate and that the said judges desired to amend their original certified returns by adding these ballots. The petition further alleged that Robinson received other legal votes that were not counted by the judges. An affidavit of two of the election judges and the officer of election was presented in support of the petition. The affidavit recites as a reason for not counting these "sticker ballots" that they were "misinformed" as to the legality of said ballots and that "they are willing to count said legal ballots for petitioner and amend their returns so as to include said ballots which were excluded."

The county election commissioners refused to allow the election judges to amend their original returns as prayed for in the petition. Thereupon complainant filed his bill in the Chancery Court of Bledsoe County against the defendants to compel them to allow the returns to be amended and prayed for the issuance of the writ of mandamus. Shortly thereafter an amended bill was filed making Wade H. Farmer a party defendant. A demurrer was filed by all of the defendants upon the following grounds: (1) It is not alleged that these defendants have failed to perform or will fail to perform any duty imposed by law; (2) it appears from the face of the petition that on the face of the original certified returns of the precinct judges and officers there was a tie vote, and defendants having broken the tie vote and issued a certificate of election to Wade H Farmer, they have exhausted their powers and are without power further to act, and this Court is without power to compel them to act; (3) that the two judges and officer of election were without power to amend their original returns and defendants were without power to allow them to amend etc.; and neither these defendants nor this Court have power now to allow said amendment as prayed, and that defendants are without power to go behind the official returns.

It is further averred in the demurrer that: "This Court is without jurisdiction as a Chancery Court in this cause to go behind the face of the election returns, since that involves an election contest." Other grounds of demurrer not referred to are not important in determining the rights of the parties in this cause. We deem it wholly unnecessary to consider the question raised that the complainant was not duly qualified as a candidate for the office of county judge.

In 29 C.J.S., Elections, § 233, page 335, it is said:

"In the absence of any valid statutory limitation to the contrary, where election officers have completed the count, executed and delivered their returns, their powers and duties are at an end; they are without power to withdraw the returns, add to, change, or alter them, or to make a new return."

In People v. Whalen, 199 A.D. 861, 193 N.Y.S. 45, 49, it is said:

"The policy of the law is that, immediately on the close of the polls, the vote shall be publicly canvassed by the inspectors, and the result announced and certified by the election officers, and that this canvass shall be made simultaneously in all the election districts of the state."

The question of the right of election officials to recount the ballots and make a supplementary return was considered in Hearst v. Woelper, 183 N.Y. 274, 76 N.E. 28, wherein the Court said:

"The Election Law * * * does not impose the duty, nor does it confer authority, upon election officers to reconvene on a day subsequent to the completion of a canvass made by them, and re-count the ballots cast at the election, and the courts have no power, express or implied, to compel such a re-count by mandamus."

See People v. Devermann, 83 Hun. 181, 31 N.Y.S. 593; also, State ex rel. v. Knight, 6 Houst. 146, 11 Del. 146, and State ex rel. v. Wright, 57 Tenn. 237, 10 Heisk. 237, 252, 253.

The foregoing authorities, we think, are based upon the soundest rules of public policy. Our election laws presumably throw around the ballot box the fullest protection against fraud and unless the statute confers authority upon judges and officers of election to recount ballots and file amended returns, it necessarily follows that the courts will not compel or permit them to do so by writ of mandamus. The authority must be found in the statutes governing elections. The election laws in this state confer no such authority. Under the law it is the duty of all judges of election to count the ballots, "read aloud the names of the persons which shall appear upon each ballot", which are to be recorded by the clerks. The returns are then and there, after all ballots are canvassed and counted, certified by the said judges and officers, sealed and delivered to the officer to be by him delivered to the board of election commissioners. Section 1991 of the...