Prewitt v. Wilson

• Decision Date: 02 February 1932
• Citation: 242 Ky. 231,46 S.W.2d 90
• Parties: PREWITT v. WILSON.
• Court: Kentucky Court of Appeals

46 S.W.2d 90

242 Ky. 231

PREWITT v. WILSON.

Court of Appeals of Kentucky

February 2, 1932

Appeal from Circuit Court, Whitley County.

Election contest by Willis Prewitt against William Wilson. From a judgment dismissing the petition, the contestant appeals.

Affirmed.

J. B Johnson and L. O. Siler, both of Williamsburg, for appellant.

B. B Snyder and C. B. Upton, both of Williamsburg, and J. B Campbell, of Barbourville, for appellee.

STANLEY C.

This contest for the election of a school trustee involves two unusual legal questions as well as issues common to such cases. Wilson received a majority of one vote over Prewitt. The latter's petition of contest was dismissed.

The votes of several women are challenged because of illiteracy. For several years before the adoption of the Nineteenth Amendment to the Constitution of the United States we had in Kentucky a statute permitting women to vote in school elections, but no other, provided they could read and write and possessed the legal qualifications of male voters. Section 4535h-1. The law was regarded as valid because the Kentucky Constitution, section 155, expressly declares that other provisions limiting the right of suffrage to male citizens shall not apply to the elections of school trustees, and gives the Legislature plenary power in respect thereto. Crook v. Bartlett, 155 Ky. 305, 159 S.W. 826. The question before us is whether this statute in its fullness still stands.

The Nineteenth Amendment, which was proclaimed on August 26, 1920, did not confer, nor purport to confer, the right of suffrage upon women, although that is a popular, but erroneous, conception. It only prohibits discrimination against them on account of their sex in the exercise of that right of citizenship. It is in this language: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

The General Assembly of Kentucky, at its 1920 session, apparently in anticipation of the adoption of the amendment, provided that women who possessed the same qualifications as men should be entitled and allowed to vote in all elections of electors of President and Vice President, separate ballots to be provided for them. Chapter 101, Acts of 1920. At the same session it passed an act providing for the participation of women in subsequent primary elections "in which women are entitled to vote under State law, or under the provisions of the Federal Constitutional Amendment, giving women the right to vote." And in the same act it placed the duty upon the county court clerk to provide additional ballots in all elections "in which women are allowed to vote under State law, or under the provisions of the Federal Constitution." Chapter 64, Acts of 1920. These laws are now designated as section 1596b-1, et seq., Statutes. It is to be noted that the right to vote in general elections, except for presidential elections, has not been expressly conferred upon women by the Kentucky Legislature. Nor has section 4535h-1, carrying the illiteracy qualification, or any other statute pertaining to elections, been expressly repealed. Of historical interest is the fact that in 1923 a proposed amendment to the Kentucky Constitution extending the privilege of voting to women was defeated at the polls.

The Constitution of the United States with its amendments is the supreme law of the land. Before it, all conflicting constitutional and statutory laws must yield and become ineffective. As its preamble declares, it was ordained and established by the people, and by adopting it they acquiesced in the restrictions and rights which it created or rendered possible by its provisions. In many ways it also operates directly on the states in their corporate or sovereign capacity. Martin v. Hunter, 1 Wheat. 304, 4 Law Ed. 97. It controls the Constitutions and the laws of the respective states, and cannot be controlled by them. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. In its sphere it binds every forum, whether it derives its authority from a state or from the United States. Cook v. Moffat, 5 How. 295, 12 L.Ed. 159. Judicial and legislative acts of a state hostile in their purpose or mode of enforcement to the authority of the federal government, or impairing the rights of citizens under the Constitution of the United States, are invalid and void. Taylor v. Thomas, 22 Wall. 479, 22 L.Ed. 789.

The validity of the Nineteenth Amendment was sustained in Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505. It is in the exact language of the Fifteenth Amendment, with the substitution of the word "sex" for the words "race, color or previous condition of servitude," which, during its testing time, was consistently and uniformly held not to confer the right to vote upon the negro, but having the effect ex proprio vigore of striking from the laws of all states the word "white." Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567. Upon the same reasoning and following those authorities, the courts before whom the Nineteenth Amendment has come for interpretation have given it the same construction, and held that it is self-executing and became automatically operative by its inherent force. Under it women are politically emancipated and are not and may not be disqualified from voting on account of being women. Brown v. City of Atlanta, 152 Ga. 283, 109 S.E. 666; Foster v. City of College Park, 155 Ga. 174, 117 S.E. 84; Graves v. Eubank, 205 Ala. 174, 87 So. 587; State v. Walker, 192 Iowa 823, 185 N.W. 619; State v. James, 96 N. J. Law, 132, 114 A. 553, 16 A.L.R. 1141; Opinion of the Justices on Women as Officers, 119 Me. 603, 113 A. 614; Opinion of Justices, 240 Mass. 601, 135 N.E. 173; State v. Mittle, 120 S.C. 526, 113 S.E. 335, certiorari denied in 260 U.S. 705, 744, 43 S.Ct. 164, 67 L.Ed. 473; People ex rel. Murray v. Holmes, 341 Ill. 24, 173 N.E. 145, 71 A.L.R. 1327. Therefore all of the laws of this commonwealth which denied or abridged the right of suffrage to women have yielded to the superior mandate, and it must be held that they have constructively, though very effectually, been repealed or rendered nugatory.

But it is said by the appellant that the terms of this statute granting a limited right of suffrage to women in school elections is not discriminatory because of sex, but merely sets up a test of literacy. The argument is a specious one, for male voters are not required to meet the same test. Its limitation only applies to women, and it is therefore discriminatory against them. Illiterate women, no less than illiterate men, may exercise the right of suffrage in Kentucky, and such votes cast for the appellee were properly counted.

2. Two votes for the appellee were challenged because cast by men who had been convicted of a felony and whose forfeited civil rights had not been restored, and who were therefore ineligible to vote. Section 145, Constitution of Kentucky; Ky. St. § 1439. The evidence sustaining the charges consisted of orders of the circuit court alike in form. Each order recited that the defendant announced ready for trial; that the jury was...