Sproule v. Fredericks
| Citation | 11 So. 472,69 Miss. 898 |
| Parties | ROBERT SPROULE v. R. A. FREDERICKS |
| Decision Date | 23 May 1892 |
| Court | United States State Supreme Court of Mississippi |
FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.
Sproule and Fredericks were opposing candidates for the office of assessor of Warren county, at the general election held in November, 1891. Fredericks was declared elected by a majority of eight votes. Sproule filed his petition to contest the election. The ground mainly relied on, as set out in the petition, is as follows:
"Petitioner further shows that, of the seventy votes alleged to have been cast at said precinct (Brunswick), and which votes were counted against him, and for the said R. A. Fredericks forty-one were east by persons who could neither read nor write, and he avers that they were not afflicted with blindness or any other physical disability which authorized any one to mark their ballots for them; nevertheless, by some fraudulent contrivance, said forty-one persons were aided and abetted in such way that they were furnished ballots already duly marked and provided by persons not authorized so to do which were, by collusion with the officers holding said election, received and deposited, by reason whereof said pretended votes and ballots are false and fraudulent."
This ground of contest was held bad on demurrer, the court (presumably) holding that the provision of the election ordinance of the constitution was directory and not mandatory.
The contestant filed an amended petition, setting up other grounds of contest, and, issue having been joined thereon the cause was submitted to be tried upon the evidence before the judge in vacation without a jury. It is not necessary to consider the amended petition, or the evidence in support of it, since the only question passed on by the Court, aside from the validity of the constitution of 1890, arose under the allegations of the original petition, and the evidence offered in support of them, which was excluded by the court.
The plaintiff offered, under the allegations of the original petition, to prove by one London, and a number of other witnesses, that about forty persons voting at Brunswick precinct were illiterate, not being able to read or write and were not physically disabled, lame or blind, and that they did not mark their tickets, or otherwise conform to the law providing for the method of marking and distributing ballots; that one Kiger, the officer who distributed the tickets at the polls, had marked the tickets for these persons, and that they did not know for whom they were voting, but merely voted at Kiger's request; that the inspector who received the ballots knew that Kiger had assisted these voters to mark their tickets, and that they were unable to read or write.
Petitioner also offered to show by one Davis, an inspector or judge at said precinct, that the receiving of the ballots, so cast by these illiterate voters, was the result of collusion between the judges of the election and Kiger, in order to defeat the election of petitioner. From a judgment in favor of contestee this appeal is prosecuted.
The question mainly argued by counsel is, whether the provisions of the constitution and the ordinance regulating suffrage are mandatory or directory; but, since the court holds that the allegations of the petition are sufficient, and the evidence offered in support of it is competent, independently of the true meaning of the constitution and ordinance as to this, it is not necessary or proper to set out the arguments on this question.
It is urged by appellee, in argument, that the provisions of said constitution of 1890 are violative of the act of congress, approved February 23, 1870, entitled "An act to admit the state of Mississippi to representation in the congress of the United States." This act contains the following provisions: "The state of Mississippi is admitted to representation in congress as one of the states of the union upon the following fundamental conditions:
The constitution of Mississippi adopted in 1869, provided, in reference to franchises, that "all male inhabitants of this state, except idiots and insane persons, and Indians not taxed, citizens of the United States or naturalized, twenty-one years old and upwards, who have resided in this state six months, and in the county one month, next preceding the day of election at which said inhabitant offers to vote, and who are duly registered according to the requirements of section 3 of this article, and who are not disqualified by reason of any crime, are declared to be qualified electors."
Section 241 of the constitution of 1890 is as follows: "Every male inhabitant of this state, except idiots, insane persons and Indians not taxed, who is a citizen of the United States, twenty-one years old and upwards, who has resided in this state two years, and one year in the election district, or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, and who has paid, on or before the first day of February of the year in which he shall offer to vote, all taxes which may have been legally required of him, and which he has an opportunity of paying according to law, for the two preceding years, and who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but any minister of the gospel, in charge of an organized church, shall be entitled to vote after six months' residence in the election district, if otherwise qualified."
Section 242 of Said constitution directs that the legislature shall provide by law for the registration of persons entitled to vote, and prescribes the oath to be taken by those offering to register.
Section 244 of said ...
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