State v. Wimberly

• Decision Date: 15 October 1946
• Parties: STATE ex rel. HAMMOND et al. v. WIMBERLY et al.
• Court: Tennessee Supreme Court

Page 561

196 S.W.2d 561

STATE ex rel. HAMMOND et al. v. WIMBERLY et al.

Supreme Court of Tennessee.

October 15, 1946.

Appeal from Chancery Court, Knox County; Thomas H. Goodman (sitting by interchange for Judge A. E. Mitchell), Judge.

Suit by the State, on the relation of W. C. Hammond and others, against Harold Wimberly and others, to enjoin the holding of a recall election in the City of Knoxville, wherein defendants filed a demurrer. From a decree sustaining the demurrer, the complainants appeal.

Affirmed.

Ely & Ely, of Knoxville, for complainants.

J. W. Baker, Taylor H. Cox and R. R. Kramer, all of Knoxville, for defendants.

PREWITT, Justice.

The chancellor sustained the demurrer of the defendants to the injunction bill filed herein and the appeal to this Court resulted.

The object of the bill is to prevent, by injunctive processes, the holding of a recall election in the City of Knoxville to determine whether or not the complainant, Cas Walker, shall be removed from the office of Mayor and also certain councilmen of the city.

The petitions seeking a recall election were duly filed with the Commissioners of Elections of Knox County. Each petition bore a large number of signatures, purportedly of persons who represented themselves to be qualified voters of the City of Knoxville.

On May 6, 1946, complainant Hammond filed this bill in the chancery court stating that the defendants Commissioners of Elections were about to certify as sufficient the recall petitions heretofore referred to (1) without removing therefrom allegedly forged signatures; (2) without removing therefrom pages which allegedly bore defective affidavits; (3) without removing therefrom signatures allegedly obtained through misrepresentation; (4) without removing therefrom the names of all persons who either at the time of signing the petitions, or at the time the petitions were filed, had not been registered for a period of twenty days, and had not held a poll tax receipt for a period of sixty days; (5) without removing therefrom the names of signers who, prior to the time the Commissioners acted upon the petitions, had made written request for the withdrawal of their names; and (6) without publishing in full the petitions in some local newspaper.

The bill charged that the Commissioners had acted arbitrarily in performing the task just mentioned, and the bill prayed for an injunction and an alternative writ of mandamus. Thereupon the defendants filed their demurrer.

This lawsuit involves the proper construction of section 98 of the charter of the City of Knoxville, Private Acts 1923, Chapter 412, which reads as follows:

"Be it further enacted, That any Councilman-at-large of the City of Knoxville elected under this Act may be removed from office by the qualified voters of said city; the procedure to effect such removal shall be as follows: A petition signed by the qualified voters equal in number to at least thirty per cent of the total vote cast for all candidates for the office of City Judge at the last regular election demanding the election of a successor to the person sought to be removed shall be filed with the Commissioners of Election of Knox County, and notice given of such filing by publication at least once in one of the daily newspapers published in said city which petition shall contain a general statement of the grounds upon which the removal is sought; the signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving his street and number, or the location of his real estate, and in what election precinct he intends to register and vote, if he votes by reason of property qualification. One of the signers of each such paper shall make oath before an officer competent to administer oaths that the statements therein made are true as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be; within fifteen days from the date of the filing of said petition, said Board of Election Commissioners shall examine the same and ascertain whether it is signed by the required number of persons, and whether such persons are qualified voters as shown by the registration books, and they shall attach to said petition their certificate showing the result of such examination. If, by the said certificate, the petition is shown to be insufficient, it may be amended within ten days from the date of said certificate. The Board of Election Commissioners shall, within fifteen days after such amen...