Taylor v. Carr

• Decision Date: 11 November 1911
• Parties: TAYLOR v. CARR. ADAMS v. McDONALD.
• Court: Tennessee Supreme Court

141 S.W. 745

125 Tenn. 235

TAYLOR v. CARR.

ADAMS v. McDONALD.

Supreme Court of Tennessee.

November 11, 1911

Appeal from Circuit Court, Campbell County; G. Mc. Henderson, Judge.

Consolidated election contests by Alvis J. Carr against J. Will Taylor and by Hugh McDonald against W. C. Adams. Judgment for petitioners, and defendants appeal. Affirmed.

Lindsay Young & Smith, Jourolmon, Welcker & Smith, L. H. Carlock, and John P. Rogers, for appellants.

W. A Owens, Wright & Jones, Agee & Peters, and Jesse L. Rogers for appellees.

NEIL J.

These are consolidated cases brought from the circuit court of Campbell county. They were instituted in that court by the defendants in error, Carr and McDonald, against the plaintiffs in error, Taylor and Adams, to contest an election for city offices of the city of La Follette, held on the 29th of March, 1910.

The commissioners of election gave the certificate of election to Taylor as successful candidate for mayor of the city, and to Adams as successful candidate for alderman of the Third ward. The unsuccessful candidates thereupon filed these suits, for the purpose of contesting the election, in the circuit court.

The petition was met by a demurrer, under which certain questions were made which we shall now state and consider.

There were other questions which we shall not refer to until after we have set forth the substance of the petition.

For the consideration of the points we shall first mention it is not necessary that the petition shall be given with any more particularity than as above.

The question is raised by the second, third, and sixth grounds of demurrer, that the primary jurisdiction of these contests was in the city council of the city of La Follette, and that the circuit court had no original jurisdiction.

In order to a proper understanding of this question it is necessary to make the following excerpts from the charter of La Follette (chapter 161 of the Acts of 1897):

Section 8, among other things, contains the following:

"The city council shall be the sole judge of the qualification and election of its own members, and shall have the power to determine the rules of its own proceedings, punish its members for disorderly conduct, and with the concurrence of four of its five memberselect, may expel a member."

Section 13 contains the following:

"If the election of any officer shall fail in consequence of an equal number of votes having been cast for two or more persons for the same office, the city council shall cast lots among the persons so voted for, in such manner as it may prescribe, by resolution, and the person who shall be successful according to the terms of such resolution in the casting of lots shall be declared elected. If the election of any city officer shall be contested, the contest shall be heard and determined by the city council under such rules as the said council shall have previously established for such hearing."

Hugh McDonald claims to have been elected as a member of the city council, and under the provisions of section 8 that body would have the primary right to pass upon his controversy, in view of the language used in the section referred to, to the effect that the council shall be "sole judge" of the matter (Darrow v. People, 8 Colo. 417, 8 P. 661), subject to the supervisory jurisdiction of the circuit court, under the writ of certiorari (Staples v. Brown, 113 Tenn. 643, 85 S.W. 254). The jurisdiction of the council, however, could not be invoked, because it does not appear that it had established any rules or methods for conducting a contest, as it was required to do under section 13.

Veile v. Funck, 17 Iowa, 365. There was, therefore, no other tribunal to which application could be made, except the circuit court, under section 6063 of Shannon's Code; no provision having been made by statute for such contests other than under said section. Baker v. Mitchell, 105 Tenn. 610, 59 S.W. 137.

If the mayor of La Follette were also a member of the city council, the same rule above indicated as to Hugh McDonald would apply to Carr, since he was a candidate for the office of mayor. It is insisted by defendant Taylor that the mayor is a member of the city council. In view of what has been said in disposing of this part of the case as to McDonald, it is perhaps unnecessary to say that, upon a very careful examination of the charter above referred to, and the amendment of 1901 (Acts 1901, c. 460), we are of the opinion that the city council is composed only of the aldermen, and the mayor is not a part of it. The city council is not a judicial tribunal, within the sense and meaning of Shannon's Code, § 6063.

In the case of Crump v. Williams, decided by this court at the April term, 1910, at Jackson, it was held that language in the charter of the city of Memphis similar to the last sentence quoted from section 13, supra, did not confer exclusive original jurisdiction upon the city authorities to dispose of the contest, but that the jurisdiction was merely cumulative, and the circuit court had original jurisdiction. The weight of authority in other states is to the same effect. People ex rel. Hatzell v. Hall, 80 N.Y. 117; McVeaney v. Mayor, 80 N.Y. 185, 36 Am. Rep. 600; Veile v. Funck, supra; State ex rel. v. Kraft, 18 or. 550, 23 P. 663; Commonwealth v. Allen, 70 Pa. 469; State ex rel. v. Kempf, 69 Wis. 470, 34 N.W. 226, 2 Am. St. Rep. 753; State v. McKinnon, 8 Or. 492; Kendell v. Camden, 47 N. J. Law, 64, 54 Am. Rep. 117; State of Missouri ex rel. Turner v. Fitzgerald, 44 Mo. 425; People v. Londoner, 13 Colo. 303, 22 P. 764, 6 L. R. A. 444; State ex rel. v. Anderson, 26 Fla. 254, 8 So. 1; Commonwealth v. McCloskey, 2 Rawle (Pa.) 369.

The circuit court, therefore, had original jurisdiction of the contest instituted by Carr; no other court being vested therewith.

We shall now state, with as much brevity as possible, the substance of the petition. Before doing this, however, it should be stated that the petition is filed with a double aspect.

First, in Carr's Case, that the election may be declared void, and the petitioner be declared the incumbent, inasmuch as he was mayor at the time the election of March 29, 1910, was had, and was ousted by Taylor without authority of law; and, secondly, for the purpose of having Carr declared the successful candidate in case the court should hold that the election was not invalid, but was a legal election. The petition stated the contest in two aspects, within the authority of Maloney v. Collier, 112 Tenn. 78, 102, 103, 83 S.W. 667.

We shall now confine our attention in what immediately follows to the mayor's contest, and state the contents of that petition.

It is alleged that an election was held on the date above mentioned for the election of mayor and the members of the city council of the city of La Follette; that the officers holding the election, being doubtful as to whether the election should be held under the Dortch law or under the uniform ballot law, conducted two elections at the same place--that is, one under each method; that the election under the uniform ballot law was void, because registration certificates were demanded of the voters, and that thereby 96 persons were prevented from voting, which would have been sufficient to change the result; and that, of these 96 persons, 41 would have voted for contestant, Carr.

It is alleged in terms that the election under the Dortch law was invalid, because this law did not control; but it is stated as a fact that the city of La Follette is within a civil district containing 2,500 population. Therefore, while the conclusion of law announced in the petition is that this election was void because the city of La Follette did not fall within the law, yet the statement of fact just indicated shows that it did fall under the law. Indeed, both sides now agree that the election was properly held under the Dortch law--that is, that the Dortch law controlled, and not the uniform ballot law.

It is charged that the returns made up by the election officers under the Dortch law gave to the petitioner, Carr, a majority of the votes--that is, Carr 190 votes and Taylor 185 votes--but that, when these returns were sent to the commissioners of election, they assumed to go behind the poll lists and tally sheets, examine the original ballots, and throw out votes, and, so acting, the result was so changed as to give the defendant Taylor a majority, and that thereupon they issued the certificate to him. This action is complained of.

The petition sets out the names of various persons who were charged to have been illegal voters, who cast their ballots for contestee Taylor.

Complaints are made of the place of holding the election in the Third ward, the location of the registrars with respect to the location of the officer holding the election at that precinct, and the judges; also the mode of entrance into the voting places, and of the fact that deputy sheriffs were placed near the entrance.

There are various charges with respect to the election conducted on the uniform ballot plan; but, inasmuch as both sides concede, as we have already stated, that the election should

have been conducted under the Dortch and registration law, we need not mention this matter further than to say that it was charged that the petitioner was found on the face of the returns to have less votes than the defendant, because of the fact that his voters were kept away by the illegal demand for registration certificates, and it is further charged in respect of this election that on a proper recount of the votes there would be a majority of 30 in favor of petitioner Carr.

The foregoing general statement is sufficient for the disposition of the demurrer,...