Black v. Pate

• Decision Date: 29 May 1901
• Citation: 30 So. 434,130 Ala. 514
• Parties: BLACK v. PATE.
• Court: Alabama Supreme Court

30 So. 434

130 Ala. 514

BLACK v. PATE.

Supreme Court of Alabama

May 29, 1901

Appeal from probate court, Geneva county, Ed. Roach, Judge.

Election contest for an office of sheriff of Geneva county by B. F Pate against George W. Black. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The election was held on August 6, 1900. On August 11, 1900, the said George W. Black was declared elected to the office of sheriff of said county by the board of supervisors of election of Geneva county. The contest proceedings were commenced on August 25, 1900. The declaration of contest, as originally filed, declared that George W. Black was not entitled to be declared elected sheriff of Geneva county upon two grounds: First. On account of illegal votes; and the contestant avers that illegal votes were given to George W Black for sheriff, which, if taken from him, would reduce the number of legal votes given him below the number of legal votes given to the contestant. Second. That at the time of holding said election on August 6, 1900, George W. Black was not eligible to the office of sheriff, because he was at said time, and had been for several years prior thereto, the sheriff of Geneva county. On September 1, 1900, the contestant filed an amendment to his statement of contest, in which he set out a third ground of contest, which was, in substance, that in beat 15 of Geneva county there was fraud practiced by the managers, the clerk or returning officer, or some other person, by reason of which certain votes cast for the contestant were in fact counted as having been cast for the contestee. The contestee demurred to the second ground of contest as contained in the original statement filed by the contestant upon the ground that it fails to show that George W. Black was on August 6, 1900, the sheriff of Geneva county and that said ground of contest fails to allege that George W. Black was his own successor in the office of sheriff within the meaning of the constitution. The contestee also filed an answer to the statement as originally filed, in which he admitted the candidacy for sheriff of the contestant and himself, and that they were each resident citizens of the county of Geneva. He then denied in his said answer that there were any illegal votes cast at said election which were given or counted for the contestee, but charged that at said election illegal votes were cast and counted for the contestant, which, when taken from the vote given to the contestant, will reduce the number of legal votes cast for him below the number of legal votes cast and counted for the contestee. In further answer to the first ground of contest the contestee averred that at said election there were cast for him, in a legal manner, nine legal votes in precinct No. 3, which were thrown out of the count by the managers of said election. Further answering the first ground of contest, the contestee averred that in precinct No. 10 of said county the court house was constituted as the only place in which the election in said precinct could be held, but that, notwithstanding this fact, an election for said precinct was held at what is known as and called "Roneys' School House," in addition to the election held at the court house in said beat, and that at said Roney's school house there were 41 votes cast, all of which were counted for the contestant; and that all of said votes should be deducted from the total number of votes counted and allowed for the contestant, upon the ground that the said Roney's school house was not a legal place for holding said election in precinct No. 10. In answer to the second ground the contestee denied that at the time of holding the election on August 6th he was ineligible to the office of sheriff of said county, and averred that on March 13, 1897, Dan Vaughan, who was then the sheriff of said county, and discharging the duties thereof, died, his death causing a vacancy in said office; that on March 25, 1897, the deceased was duly appointed by the governor to fill said vacancy, and he qualified under said appointment on March 27, 1897; and that at the time of holding said election he was sheriff, and discharging the duties of said office, by virtue of said appointment, and not by reason of having been elected thereto by the people of said county. The contestee also moved the court to strike the amendment offered by the statement of the contestant, which was filed on September 1, 1900, from the file, upon the ground that more than 15 days had elapsed from the time the declaration of the result of the election had been made. The contestee also demurred to said third ground of contest, which was added by amendment, upon several grounds, and filed an answer denying that there was any fraud practiced by any of the officers holding said election, or in declaring the result thereof. It is unnecessary to set out the grounds of this demurrer. The court overruled the demurrer interposed to the first and second grounds of the contest as contained in the statement, and also overruled the motion to strike the amendment from the file, and the demurrers to the amendment. To each of these rulings the contestee duly and separately excepted.

On the trial of the case it was shown that both the contestant and the contestee were resident citizens of Geneva county for several years prior to the election on August 6, 1900, and were qualified electors; that at the election in August 1896, Dan Vaughan was duly elected and qualified as sheriff of Geneva county; that on March 13, 1897, said Vaughan, while said sheriff, and discharging the duties of his office, died, leaving a vacancy; that on March 25, 1897, the contestee was appointed by the governor of Alabama to fill said vacancy caused by the death of said Vaughan, and on March 27, 1897, qualified, and received his commission as such sheriff; that on August 6, 1990, said George W. Black was discharging the duties of the office of sheriff under and by virtue of his appointment, and not by any election of the people. It was further shown that the court house was located in beat No. 10; that there had been, some years before the general election in August, 1900, a new polling place, in addition to the court house, established in beat No. 10, at what is known as "Roney's School House"; and that on the day of the election on August 6, 1900, the polls were legally and duly opened at said Roney's school house, as well as at the court house; and there were a number of votes cast for the contestant at Roney's school house. It was also shown that in beat No. 3 there were several ballots which were voted for the contestee that were rejected and not counted by reason of irregularities in the marking of them. These ballots showed that on each of them the cross mark made upon the ticket, while made opposite the name of George W. Black, was made on the right-hand side of the ticket,-that is, after the name of Black, and not before it; and that there was no other mark opposite any of the other names which appeared as candidates for the office of sheriff. The evidence for the contestant tended to show that in several of the beats of the county people voted who were not entitled to vote, and many illegal votes were counted for the contestee, which should not have been counted for him; and that, if the votes which were illegally cast were rejected, the contestant would have received a majority of the legal votes cast in the county for the office of sheriff. It was shown that the majority declared for George W. Black in the vote of the whole county was 11. There was also evidence introduced by the contestant tending to show fraud and corruption on the part of the managers, or returning officers, or clerks, or some other person in reference to the votes cast in some of the beats of the county; some of the witnesses introduced by the contestant testifying that in beat 15 of said county the tally sheets on which the votes were counted, when the boxes were opened, had been altered; that erasures were made in the tallies or count of the votes given to the contestant, and that the tally sheets were not in the same condition as when they were made by the clerks at the polling places in the beats and locked in the ballot boxes and delivered to the returning officer. The evidence for the contestee tended to show that there were no illegal votes cast for him in said election, and there were none counted for him; that there was no fraud or corruption on the part of the managers or any officers of the election, or on the part of any one else; that many illegal votes were cast for the contestant, and counted for him, and that, if these illegal votes so cast for the contestant and counted for him were rejected, a majority of the contestee over the contestant would be much greater than that declared by the board of supervisors. During the examination of J. J. Russell, who was one of the inspectors of the election in beat 15, he was asked by the contestant the following question: "For whom did you vote at said election for the office of sheriff?" The contestee objected to this question, upon the grounds: (1) That it called for illegal testimony; (2) that it had not been shown that the witness was an illegal voter; and (3) because it is against public policy for a voter to testify for whom he voted. The court overruled this objection, and the contestee duly excepted. Upon the witness answering that he voted for the contestant, the contestee moved to exclude his answer upon the same grounds assigned in support of his objection to the question, and duly excepted to the court's overruling his objection. This witness was further asked by separate questions for whom had several designated persons voted for the office of sheriff at said...