Vandergriff v. State ex rel. Davis

• Decision Date: 29 November 1937
• Citation: 206 S.W.2d 395,185 Tenn. 386
• Parties: VANDERGRIFF, Sheriff, v. STATE ex rel. DAVIS, County Attorney. SAME v. STATE ex rel. BAKER, District Attorney General.
• Court: Tennessee Supreme Court

206 S.W.2d 395

185 Tenn. 386

VANDERGRIFF, Sheriff, v. STATE ex rel. DAVIS, County Attorney.

SAME v. STATE ex rel. BAKER, District Attorney General.

Supreme Court of Tennessee.

November 29, 1937

Error to Circuit Court, Anderson County; Wm. I. Davis, Jr., Judge.

Consolidated suits by the State, on the relation of Sidney Davis, County Attorney of Anderson County, and by the State, on the relation of Howard H. Baker, District Attorney General, to oust Bernard F. Vandergriff from the office of Sheriff of such county. Judgment ousting defendant from office and he brings error.

Reversed and remanded.

Hobart F. Atkins, of Knoxville and William O Gilbreath, A. L. Fox and Thomas Chadwick, all of Clinton, for plaintiff in error.

Howard H. Baker, District Atty. Gen., Sidney Davis, Co. Atty., of Clinton, and L. C. Ely, of Knoxville, for defendant in error.

PREWITT Justice.

These two ouster suits were brought against the Sheriff of Anderson County. By order of the court, the cases were consolidated and heard together. A decree was entered ousting the Sheriff from office after a full hearing. A jury was demanded and impaneled and eight issues were made up under the direction of the court. All the issues were withdrawn by the court from the jury except two:

(1) Did defendant fail to report liquor seized by him as required by section 11225 of Williams' Code?

(2) Did defendant knowingly and willfully fail to do his duty as such Sheriff as provided by section 1877 of Williams' Code which is a part of the ouster law?

The defendant has appealed and assigned errors.

The record is large and the testimony contains nearly one thousand pages. There has been much feeling shown in this law-suit. The case of the relators centers around what is known in the record as the Embassy Club, the Volunteer Club, and the V. F. W. Club; and the alleged failure of the Sheriff to report all liquor seized within five days of its capture, as provided by said section 11225 of Williams' Code.

Six of the eight issues, including issues charging corruption in office, such as the acceptance by the Sheriff of gifts and bribes, and unlawfully disposing of captured whisky, were taken from the jury and decided in favor of the defendant.

It appears that whisky was old regularly at the Embassy Club which was situated near the Knox County line in Anderson County. Oak Ridge is located in Anderson County, and the huge war plant at Oak Ridge, and near there, covers thousands of acres of land in Anderson and Roane counties. Fifty to sixty thousand people were employed at the war plant in 1946 otherwise Anderson County is about the average size county in Tennessee. No doubt this well-equipped club was erected primarily to serve this largely populated area. To say the least of it, intoxicating liquors were sold there some time before these suits were brought. Some months before these suits were filed, this club was padlocked at the instance of the county attorney. It appears that the Sheriff and his deputies raided this place four or five times before it was padlocked but no liquor was found. Relators insist that this is a circumstance which goes to show that the operators had some sort of advance information as to when the raids would take place. It further appears that some time before the Embassy Club was padlocked, Highway patrolmen, headed by Commissioner Bomar, raided this club and seized a quantity of liquor.

The V. F. W. Club was operated by Veterans of Foreign Wars and was located near Clinton. This club was supposed to be operated for members only, but members were permitted to bring their guests with them. There is much evidence in the record to the effect that there were a number of slot machines in this club and that the Sheriff was notified of their presence and operation. Upon receiving this information, the record shows that the Sheriff immediately notified the operators of this club that these slot machines would have to be removed and they were promptly removed. The proof shows that these slot machines were out at this club about eleven weeks, but they were removed some months before these proceedings were instituted.

The Volunteer Club was located about three miles from Clinton in Anderson County and some 200 or 300 yards from the highway, where cockfighting was permitted and carried on. The Sheriff made several trips out there and testified that at no time while he was there was cockfighting engaged in. The record discloses that this club has ceased to function and was closed some months before the bills were filed in these cases.

Much testimony is directed at the failure of the Sheriff to report whisky seized by him as required by the statute. The Sheriff testified that he did not know it was his duty to report the captured whisky within five days after its seizure, but that he had in fact reported all whisky coming into his possession except some that was broken. He further testified that all whisky taken by him was marked and stored in the vault and it was locked. The charge is that numerous search warrants, which showed the quantity of liquor seized on the returns of the officers, were not to be found. Of course, it is the duty of the magistrate to file these warrants, or to send them to the circuit court in proper cases; but relators seek to have an inference drawn from their absence that the Sheriff had something to do with their disappearance. There is nothing in the record to show that the Sheriff had anything to do with the disappearance of these search warrants.

The proof shows that when the defendant became Sheriff there was much bootlegging going on in the county as well as gambling. The proof further shows that in the eight months preceding the filing of the bills herein the defendant made numerous raids and captured several hundred gallons of whisky, including half pints, pints, fifths, and gallons. A considerable quantity of this whisky is unaccounted for as found by the trial judge, who removed the defendant from office. Relators insist that the defendant is accountable for the whisky and has violated the law. The defendant insists that all the contrabrand whisky was stored in the vault and it was locked.

It may be fairly inferred from the rocord that at least some of the defendant's deputies had access to this captured whisky. The proof shows that the defendant had over one hundred deputies, the greater number of whom were stationed at the Oak Ridge war plant and were paid by the Government. Some of the defendant's discharged deputies appeared as witnesses and testified against him.

The relators introduced several of the State highway patrolmen who testified about certain raids made in Anderson County, some on their own initiation and some in co-operation with the defendant; and it is significant to note that all of these officers gave defendant a good reputation, testifying that he had co-operated fully with the Highway Patrol and had made a good officer. Among those so testifying was George Burdett, Chief of the Highway Patrol of East Tennessee, located at Knoxville, in the adjoining county of Anderson. The witness Leonard Frye testified that he lived in Maryville; that he was in the last war; that he was captain of the Field Artillery; that as captain of two units, he had the defendant under his command; that after 1942, the defendant was directly under his supervision; that he stayed under his supervision until July, 1945; and that he knew the defendant's reputation in his community. This witness also testified that the defendant's reputation for truth and veracity was of the highest. Numerous other witnesses testified to the good character and reputation of the defendant; in fact, there is no testimony otherwise.

The defendant testified in his own behalf and denied that he had ever misappropriated any of the seized whisky or handled it in any way unlawfully; that he did not know it was his duty to report the captured whisky within five days; that he had never accepted a gift or a bribe; that he knew it was against the law to accept a bribe and had never accepted one; and that he had honestly tried to enforce the law to the best of his ability. The defendant further testified that he had been hounded for months by his personal and political enemies, many of whom were law violators and some of whom were active participants in these proceedings to remove him from office. He denied that he ever refused or neglected to enforce the law or to make raids when the occasion presented itself.

The defendant was evidently affected on the witness stand by what had been going on for months preceding the filing of these suits. He was apparently much perturbed at times by counsel. Many of his answers to questions were not satisfactory by his answering, 'I don't know' and 'Don't remember'; but it must be said that in all of this heated controversy there is nothing to show that the defendant is not a man of integrity and of good character and reputation. When defendant was inducted into office as Sheriff he had never held a public office before and was only twenty-five years of age. There is nothing in the record to show that he willfully refused to enforce the law.

Where a sheriff has made and honest and reasonably intelligent effort to do his duty, he will not be removed from office by the courts, though his efforts may not have been wholly successful, for his right to hold and continue in office depends upon the good faith of his efforts rather than upon the degree of his success. State ex rel. v. Reichman, 135 Tenn. 653, 188 S.W. 225, Ann.Cas.1918B, 889.

The record in this case fails to show that the defendant has violated section 1877 of Williams' Code denouncing an officer 'who shall knowingly or willfully...