Southall v. Billings

375 S.W.2d 844, 213 Tenn. 280, 17 McCanless 280, 1963 Tenn. LEXIS 492
CourtTennessee Supreme Court
DecidedDecember 5, 1963
StatusPublished
Cited by23 cases

This text of 375 S.W.2d 844 (Southall v. Billings) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southall v. Billings, 375 S.W.2d 844, 213 Tenn. 280, 17 McCanless 280, 1963 Tenn. LEXIS 492 (Tenn. 1963).

Opinions

[282]*282Mr. Justice White

delivered the opinion of the Court.

This proceeding is brought by W. M. (Ben) Southall against Ben Billings, the Sheriff of Tipton County, Tennessee, and Alfred Peeler, E. H. Wooten, Jr., and Merrill Tatlock, the Election Commissioners of that County, for the purpose of enjoining said Election Commissioners from “tampering-with, altering or destroying the contents of the general election ballot boxes for all the precincts "in Tipton County, those contents being more particularly described as, but not limited to, the ballots, the applications for ballots, the certification of results of the election officials of the precincts, the tally sheets and the poll books”, and for the purpose of having the election for Sheriff of Tipton County, Tennessee, which was held on August 2,1962 ‘ declared to be null and void because of fraud”, and, finally, that a special election be held for the election of Sheriff of Tipton County. The original bill was filed on August 16, 1962.

Contestee Ben Billings demurred to the petition on the grounds that it did not set forth the matters relied upon with sufficient definiteness and certainty and that the charges • of fraudulent acts were vague and general instead of being definite and specific, all of which will be treated as one ground herein; a second ground of demurrer was that the allegations of the petition, taken as a whole, failed to show enough illegal votes cast, in the three challenged precincts to change the result of the ■election .or to render such result uncertain or indefinite.

[283]*283The election commissioners demurred on grounds which can be treated as one herein, being that they were not proper or necessary parties to the suit.

The trial court sustained each and every ground of both demurrers and dismissed the bill. The injunction against the election commissioners which had been previously granted remains in effect.

The petition herein, which was dismissed on demurrer, alleges that the complainant was a candidate for the office of Sheriff of Tipton County in the G-eneral Election held on August 2, 1962. The certified results of such election show that the complainant received 2984 votes, Shankle received 1927 votes, and Billings received 3165 votes, being a plurality of 181 votes. Billings was certified by the election commissioners as the successful candidate to take office on September 1, 1962.

We take judicial notice of the fact that Billings is now in office and has been serving as Sheriff since September 1, 1962.

The purpose of this proceeding is to have the election “declared null and void because of undue influence and incurable uncertainty of the results * * It is alleged by the complainant that “many election officials and individuals conspired with candidate Billings or others in his behalf, for the purpose to buy or steal for him enough votes to make his election a certainty. ’ ’

These charges, that many election officials and individuals engaged in a conspiracy with Billings and others in his behalf, are broad and general in character. There is another charge in the bill that approximately. $50,-000.00 was spent in behalf of Billings on election day for [284]*284the purpose of bribing voters, and that general dishonesty was widespread throughout the county. These, too, are broad, general and sweeping charges.

The contestant alleges further that “the open, notorious, and gross fraud practiced in the precincts” of Randolph, Solo and Gilt Edge “renders the election void in each and that the election for office of Sheriff of Tipton County is, therefore, null and void in toto for undue influence and the incurable uncertainty of the result.” Again, these charges are general.

Certain election officials at said voting precincts were charged with acting “throughout the day with blatant disregard to the law and the voting rights of those who came to the polls by marking peoples’ ballots under various pretenses”, and “that there was no secret balloting in this precinct (Randolph)”, and “that Billings literature was being freely passed within the polling-place.”

It is charged that many applications for ballots were signed by other than the true applicant and that at the polling place (Randolph) one A. B. Lott was openly and notoriously handing out money on behalf of the candidacy of Billings.

At the Randolph precinct Billings recieved 226 votes, Shankle received 5 votes, and the complainant, Southall, received 17 votes.

. At the Solo precinct it is charged that the officer of the election, Bobby Anderson, marked approximately 75 of the 202 ballots cast and, in concert with "Wilbur Hill, paid voters, not named, $4.00 or $5.00 each. It is further charged that no provision was made for secret balloting at this voting precinct.

[285]*285The petitioner also says that applications for ballots were fraudulently signed and many ballots were fraudulently cast and counted.

At the Solo precinct Billings received 95 votes, 73 votes were cast for Shankle, and Southall received 28 votes.

It is next charged that the voting at the Gilt Edge box was fraudulently conducted. No provisions were made for voting secretly, “many times five people would be voting at once.”

Two election officials “personally ‘assisted’ with 30% of the ballots cast”, meaning that they either marked the ballot or showed the person voting how and where to mark it and that money was being passed at the polling place. “Billings for Sheriff literature was being illegally passed inside the polling place and money was changing hands outside the polling place; contestant alleges that many ballot applications were fraudulently signed by other than the true applicant and that those votes were subsequently fraudulently cast and counted.”

At the Gilt Edge precinct Billings received 259 votes, Shankle received 10 votes, and Southall received 114 votes.

In regard to all three of the polling places referred to, it is charged as to each that “when all the votes in this box are cast one way for contestant he then has a plurality of the votes cast for the office of Sheriff and the entire election is, therefore, rendered null and void for uncertainty of result.”

Billings’ term as Sheriff ends September 1, 1964. The petition herein was filed on August 16, 1962. The de[286]*286murrers were filed on November 17, 1962. The order of the court sustaining the demurrers was entered on January 22, 1963. The appeal bond herein was filed on February 5,1963, and the entire record was filed in the office of the Clerk of this Court at Jackson on March 7, 1963. An order was entered on application of the contestant on March 13, 1963 to remove this cause from the April Term Calendar.

Excellent arguments were made at the bar of this Court on November 5, 1963. If this case is reversed and returned to the lower court for answer and the taking of proof and a hearing thereon by the court, the term of Billings will have, in all probability, been completed.

Be that as it may, it is our duty to resolve the issues presented to us by this appeal.

It is not our intention to, nor do we, pass upon the merits of this contest. We are concerned only with the sufficiency of the averments in the petition to sustain it as a matter of law and not as a matter of fact.

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Bluebook (online)
375 S.W.2d 844, 213 Tenn. 280, 17 McCanless 280, 1963 Tenn. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southall-v-billings-tenn-1963.