Moore v. Sharp

• Decision Date: 17 February 1897
• Citation: 41 S.W. 587,98 Tenn. 491
• Parties: MOORE v. SHARP.
• Court: Tennessee Supreme Court

41 S.W. 587

98 Tenn. 491

MOORE v. SHARP.

Supreme Court of Tennessee.

February 17, 1897

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Action by W. P. Moore against John D. Sharp, wherein the former contests the right of the latter to hold the office of sheriff of Davidson county. From a judgment against him contestant appeals. Affirmed.

J. H Acklen, Smith & Maddin, Granbery & Marks, and M. W. Allen for appellant.

Barthel & Keeble, John Allison, and Hamilton Parks, for appellee.

McALISTER J.

This record presents a contest for the office of sheriff of Davidson county. The investigation in the court below assumed a very wide range, presenting directly or remotely nearly every feature of our election laws. The result is a record of almost unprecedented volume. While the case is to be tried in this court as an equity case, de novo, wherein the findings of the circuit judge on questions of fact are not conclusive, our investigation must necessarily be confined to the assignments of error.

Moore and Sharp were opposing candidates for the office of sheriff at the general election held on the 6th August, 1896. Sharp, being the incumbent of the office, was thereby disqualified to hold the election, and in consequence of this fact it was conducted by the coroner, who returned the following vote: Sharp, 5,282; Moore, 5,276; Cockrill, 167.-said tabulation showing a plurality in favor of Sharp of six votes. Sharp was accordingly awarded the certificate of election, and inducted into office. In a short time thereafter Moore filed his petition in the circuit court of Davidson county contesting the validity of said election, and seeking to establish his title to the office, setting forth specifically the grounds of his contest. An answer and cross petition were filed by Sharp, in which the allegations of the original petition were denied, and counter charges of fraud and illegal voting on the part of the supporters of the contestant were preferred. The circuit judge, after a most patient hearing and investigation of the case, extending over several weeks, and after purging the polls of illegal ballots, and recasting the vote upon the issues made in the pleadings, and upon the proof, returned the following tabulated vote: Sharp, 5,179.36; Moore, 5,168.62; showing a plurality in favor of Sharp over his closest competitor of 10 votes. Moore appealed, and has assigned errors.

The first assignment of error is that the court erred in holding and decreeing that if a person changes his residence within the ward or district after registration closes he thereby loses his vote. Contestant claims that under this erroneous ruling he was deprived of 10 votes by the circuit judge in recasting the vote. The ruling of the circuit judge was that a voter changing his residence in the same ward or district within 20 days before the election was not entitled to vote, and such, we think, are the plain provisions of the statute. Section 5, c. 3, Acts 1895 (Ex. Sess.), provides, viz.: "All persons who shall have registered under the provisions of this article and hereafter change their residence by removing to another either within or without the ward or district where registered shall not be qualified to vote in any election thereafter held without first having re-registered under the provisions of this article as much as twenty days previous to any election where he offers to vote, and the registrars in such case shall take up and cancel the certificate formerly issued to such voter, unless the same has been lost or destroyed." Shannon's Code, § 1200. The next section of this act provides that "the registration books shall be opened for at least three days continuously, previous to any election, for the purpose of registering such voters as have not already been registered and to register those who have changed their residence, but the books shall be closed twenty days previous to said election." Acts 1895 (Ex. Sess.) c. 3, § 6; Shannon's Code, § 1201. It is insisted in argument that the registration laws were intended to identify voters at a particular residence, and to prevent repeating and nonresidents of wards or districts from voting; that, when registration closes 20 days before election, each qualified voter is identified at a particular place of residence, and he may remove as many times as he may desire between the close of registration and the day of election, and will not lose his right to vote, provided no other provisions of the election laws are violated. It is insisted that none of the evils can possibly arise by such a removal which the registration laws were intended to prevent. Counsel then conclude their argument on this subject in the following language, to wit: "If the courts can deprive a voter of the right of suffrage because he has moved his residence in the same ward or district after registration, it gives the courts the power to prescribe an additional qualification which is not prescribed by the statute." Counsel are reminded that the disqualification of the voter who removes from his ward or district after registration is closed is not fixed by the courts, but by the plain letter of the statute, which declares that all such persons are not qualified without a new registration for at least 20 days preceding the election. "If voters choose to disregard the mandates of the law, they disfranchise themselves, and neither courts of justice entertaining contests over an election nor election officers declining to receive such votes can be accused of any disfranchisement of the voter who has lost his right by his own disregard of the law." Louck's Case, 3 Pa. Dist. R. 127, 13 Pa. Co. Ct. R. 205. That the legislature has power to pass such an act we think may not now be seriously questioned. Mr. Cooley, in his work on Constitutional Limitations, at page 601, gives a very clear exposition of the objects and purposes of such legislation. Says this author: "In some of the states it has also been regarded as important that lists of voters should be prepared before the day of election in which should be registered the names of every person entitled to vote. Under such a regulation the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election day of the various and sometimes difficult questions concerning the right of individuals to exercise this important franchise. Electors also, by means of this registry, are notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whether the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has sometimes been claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconstitutional and void, as adding another test to the qualifications of electors which the constitution has prescribed, and as having the effect, where electors are not registered, to exclude from voting persons who have an absolute right to that franchise by the fundamental law. This position, however, has not been accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised." "Such regulations," says the author, ""must always have been within the power of the legislature, unless forbidden,"-citing Capen v. Foster, 12 Pick. 485; People v. Kopplekom, 16 Mich. 342; State v. Bond, 38 Mo. 425; State v. Hilmantell, 21 Wis. 566. These observations of Mr. Cooley are apposite in the present instance, for, if the legislature had a right to enact a registration law,-which is unquestionable,-it was equally authorized to declare that an elector changing his place of residence from or within his ward or district after registration should not be qualified to vote without a new registration at least 20 days before the election. So that we entirely agree with the circuit judge in his ruling on this subject, and this assignment of error is overruled.

The second assignment of error is that the court was in error in declining to deduct illegal votes from the entire vote polled, in cases where it could not be determined from the evidence for whom such illegal votes were cast. This assignment of error is based upon the following state of facts: The circuit judge ruled, in accordance, as we think with the weight of authority, that the voter could not be compelled to disclose for whom he voted, that the secrecy of the ballot was inviolable, and that this immunity applied as well to legal as to illegal voters, though the exemption in the two instances rested on different grounds. The illegal voter would be excused upon the ground that such a disclosure would tend to incriminate him. Says Mr. Greenleaf: "Where it reasonably appears that the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge, he will be excused. And he may claim the protection at any stage of the inquiry whether he has already answered the question in part or not at all. If the fact as to which he is interrogated forms but one link in the chain of testimony which is to convict him, he is protected, and whether it may tend to criminate or expose the witness is a point upon which the court is bound to instruct him, and which the court will determine under all the circumstances of the case, but without requiring the...