Black v. Pate

• Decision Date: 03 February 1903
• Parties: BLACK v. PATE.
• Court: Alabama Supreme Court

34 So. 844

136 Ala. 601

BLACK v. PATE.

Supreme Court of Alabama

February 3, 1903

Appeal from Probate Court, Geneva County; Ed. Roach, Judge.

Election contest by B. F. Pate against George W. Black. From a judgment for contestant, contestee appeals. Reversed.

Espy Farmer & Espy, C. D. Carmichael, W. M. Williams, and Ray Rushton, for appellant.

W. O Mulkey and J. J. Morris, for appellee.

HARALSON J.

This case was here on a former appeal, when a number of questions now presented were passed on. Black v. Pate, 130 Ala. 514, 30 So. 434. On reversal of the judgment and the return of the case to the court below, the complaint was amended, striking out all grounds of contest except the one marked (a), in these words,--"On account of illegal votes. And the said B. F. Pate avers that illegal votes were given to Geo. W. Black [the contestee] for sheriff, which if taken from him, will reduce the number of legal votes given him, below the number of legal votes given to the said B.

F. Pate [the contestant], candidate for the same office."

Issue was taken by the contestee on this ground of contest, and he set up besides, that "at said election, illegal votes were cast and counted for contestant, B. F. Pate, which when taken from said Pate, will render the number of legal votes cast for said Pate at said election far below the number of legal votes, and counted for this respondent," etc.

It was agreed by the parties, that according to the official count made by the supervisors of the election, the contestant received for sheriff of said county, eleven hundred and twenty-nine (1,129) votes, and the contestee received eleven hundred and forty (1,140), making a difference of 11 votes in favor of the contestee, and that this count was made up from the returns of the managers of the various precincts of the county.

Each party gave notice to the other of the names of the illegal votes he expected to show had been cast for the other, the contestant giving the names of 75 voters in precinct 7, of the county, who voted for contestee, and who, as claimed, were illegal voters, 11 in beat 13 and 1 in beat 10. The contestee gave the names of 31 voters in beat 7 which he claimed voted for contestant and were illegal.

If these 31 votes cast for contestant, and claimed by contestee to be illegal, were in fact legal votes, the vote in the entire county cast for contestant would remain as estimated on the final return, at 1,129 votes, since they were included in that estimate. On the other hand, if it should appear that the votes cast in beat 7 for contestee by the Ruffin negroes, were legal votes, the vote cast for contestee would be 1,140, as shown by the final return, being 11 majority for contestee, these Ruffin negro votes being included in that estimate.

The contestee by assignment of error, questions the legality of these 31 votes cast for contestant, on the ground that box 2 in precinct 10, at which said votes were cast, was an illegal voting place. But, there is no merit in this contention, as was, in effect, held on a former appeal. It appears that the polling place was regularly established by the commissioners' court, under the provisions of sections 1582-1585 of the Code of 1896.

The proof tends to show, and it is admitted by contestee's counsel that there were 45 of these votes,--alleged by the contestant to be illegal,--cast for him and counted in the returns. If these votes were legal, contestee was elected; if not, the contestant was entitled to the office.

The facts relied on by contestant, to show that these Ruffin negroes were transients in the precinct and county and not entitled to vote are, that they were employés of Thomas Ruffin, a contractor engaged in the construction of the Central of Georgia Railroad through Geneva county; that the construction of that road commenced in the winter of 1899 or spring of 1900, and these negroes came in there as laborers at that time with said Ruffin, to aid in the construction of said road; that they had never voted or been in the...