Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1882-08-01

1t Is alleged III the bill IN this cause that
al an election held III Knox County on tue
1 5th day of August, 1856, for the election OF
! county olhcers the relatur duly elected
/ shern OF said county 10y nlaJor1ty of two
/ votes a. appeared from the face of the re-
/ turns ana that he was entitled to the cr-
titicate OF election aid to be indicted into
the office of sheriff; that on the face of
tue returns the vote stood ), 500 for the re
lator and 3 So for tue defendant; that OF
| Monday, the 9th day OF August. 1880,
| Alex keeder, then Sheriff of Knox County,
/ and the returning officer of SAID election,
proceeded to compare the polls of SAID
/ election at the court house III knoxville,
| when a appeared from the face of the
/ turns ina Jne leiatOr was elected by ma
/ lOuty OF Two votes, and that the reiator
demanded a ceruncate of his election. It
Is also charged that keeder and defendant
( Gossett coiiudtd together for the purpose of
aetrauGlug the rtIatOr OF his ma orIty OF
Votes ana If depuylng hum of the benefits
! of ms election, that 10 accomplish this pur
/ pose iteeder reduced the vote of the re
lator III the frs ward of Knoxville from
! l39 to l3o votes that keeder ad-
! ded one To the vote of Defend
ant D.ossett III the fifth ward
! and counted for him 19es votes. when the
/ face OF the returns showed that Gossett re
ceived only 100 votes III that ward; that tins
/ action WIS based Oh certificate made by the
/ judges OF the election Ill the fifth ward
on the day al ter the election, after they had
| placed the original RETURNS III the hands of
/ feeder, and alter their powers such
| judges were exhausted anu had ceased to
eAlst Ii is, moreover, charged that Reeder
| counted 90 votes for GOssetL III the eighth
ward, when the face of the returns showed
that he received only S4 votes IN that ward
| The relator then charges, that by means of
| these unlawful acts, defendant Gossett was
! indicted into the office of sheriff, and that
he, the relator, was wrongfulIy and Illegally
depriV ed thereof. The prayer is that de-
| PENDANT Gossett be ousted and that the
relator be declared the lawful sheriff, &c.
The defendant Gossett IN his answer de-
MES all fraud and collision; denies that the
relator received 1879 votes III the irst ward;
denies that he, the defendant, received only
81 votes III the eight ward, and insists that
lie received So and that they were rightful-
ly counted for him; admits the making of
tne certificate on the 9th day August, 1880,
! by the officers who held the election in the
| htth ward, and AYERS that III SO doing they
| acted honestly and legally. In brief, all the
material allegations contained III the bill,
except as above Indicated, are deUled in the
answer; and the defendant insists that he is
the lawful sheriff of Knox County, and
that as such, he is entitled to the office.
| Counsel for the relator, decline i'll argument
! to insist further on the objection made to
the count of the vote iii the First ward, and
| that part of the case need not again be
noticed.
1t is to be regretted that our election
laws are not more certain. They should
be revised and extended. In a matter of SO
| much importance there should De no room
for doubt, no need for construction But
in the absence of something more definite,
We must be guided by SUCH statutory pro
visions and presidents as we have and by
common law principles.
The statute, code 500 provides that the
returns shall be sealed and directed to the
! officer to whom the returns are TO be made.
! i he requirement to seal and direct is not
of the essence OF the thing to be done, but
Is directory II the returns are actually
made to the returning officer that accom-
pushes the substantial purport of the
| statute.
The first question then to be determined
is what are the returns? Prior 70 the act
of 1921 there was no law for the preserva-
ton of poll books. la that year tue LegIS-
lature, tor the first time, passed all act re
quIring officers holding elections IN the pre-
cIncts 10 carry up TO the court house the
lists of the voters, to be there examined, in
order to detect persons voting oftener than
once. q. and n, page 273.
In 1912, code, sections SCI SO, and
$40, it was enacted that the judges of cleo
ton shall preserve the poll-books, certify
them, and Tile one copy with the clerk of
the Circuit Court, ana the other with the
clerk of the County Court. If lost, they
may be supplied by any competent evl-
dence These poll are defined, on the
face of the statute, to be lists of the names
of voters. The judges may file them at any
time within ten days after the
election. Now, lis these poll books are
nothing but lists OF the names of voters. aid
as they may not be filed until the tenth day
a ter the election, and after the polls have
been compared and the certificate issued
(fOr the votes are to be compared on the
next Monday after the election, it follows
that they are no part of the returns They
are filed merely to be read as evidence IN
any case growing out of the election where
in they may be pertinent
return may be certified statement in
writing, that each of the candidates has re-
ceived certain number of votes-or 1t NAV
be certified tally-sheets The taly-sheets
are, probably, more satisfactory than mere
certificate that has received 50 many
votes, and Is SO many-for we have in
the tally-sheetS all that, and more
A custom has prevailed in this State from a
time whereof the memory of man runneth
not to the contrary" to receive these tally
sheets as the returns and to make calcula
lions and declare results from them. And
when any doubts arise as to the meaning of
a statute, the custom which has prevailed
on the subject ought to have weight in its
| constructions tor the manner in which law
| has always been executed is one of Its modes
| of Interpretation.
The tally sheets from the fifth and eighth
wards are certified by the officers who held
the election in those wards. The certificates
are not as formal as they might have been
made, but no return poll, list or certificate
made under the provisions of our election
laws, is to be set aside or rejected for want
of form, nor on account of Its not being
strictly in accordance with law, if the same
can be clearly understood. Code, sec. oo7.
Taking and treating these tally sheets,
then, as the returns from the fifth aid
eighth wards, what should have been the
action of the returning officer with reference
thereto?
The doctrine that returning officers are
merely ministerial officers, possessing no
discretionary or judicial power is settled IN
nearly If not quite all the States. The true
rule Is that they must receive and count the
votes as shown by the returns, and they
cannot, for any purpose, go beyond the
returns. They are not allowed to
receive evidence of anything outside of the
face of the returns
The return from the Sth ward shows by
the figures thereon written that Gossett re-
ceived either "a or S5 votes. The 4 is writ
ten over the B or the over the 4, and look
ing to the figures alone it is impossible tc
tell whether he received 81 or IS votes. If
however, the tally marks be counted they
number a. The tally marks being part Of
the returns, it was proper for the returning
officer to look to them, and he should have
so done in order to determine the ambiguity
in the figures. The returning officer, how
ever, counted SIS votes for Gossett without