Sproule v. Fredericks

1. Constitution 1890. Enactment. Ratification not necessary. The convention assembled in this state pursuant to the act of 1890 (Laws, p. 53), by which it was called “to revise or amend the present constitution, or enact a new constitution, ’’represented the sovereignty of the state, and ratification by the people of the constitution enacted by it, was not necessary to its validity. 2. Constitutional Law. Suffrage. State regulation. Sovereignty. Act of Qongress. No limitation upon the right of this state to prescribe qualifications for suffrage exists, except that contained in the constitution of the United States and its amendments, which prohibit discrimination on account of race, color or previous condition of servitude. The sovereignty of the state, in this respect, is not affected by the act of congress approved February 23, 1870, which, in re-admitting Mississippi to representation in congress, assumed to make it conditional upon the state’s preserving the then existing qualifications for suffrage. 3. Contested. Election. Evidence. Illegal votes. Fraud. In a proceeding- to contest the election to a county office, it is sufficient for the contestant to allege and show that he was deprived of his rightful majority by the fraudulent practices of the managers at a certain precinct in returning a greater number of votes than were actually cast, and receiving votes of persons not qualified electors under the constitution, and votes which had been marked and furnished to voters by others in disregard of the constitution. 4. Contested Election. Evidence of fraud. Constitution of 1890. Without regard to whether the provisions of the constitution of 1890, and its ordinance regulating elections, are mandatory or directory, fraudulent conduct, whereby legal votes are received and counted, changing the result oi the election, may always be shown.

From the circuit court of Warren county. Hon. J. D. G-illand, 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 H. A. Fredericks, forty-one were cast by persons who could neither read nor write, aud he avers that they were not afilieted 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 Loudon, and a number of other witnesses, that about forty persons voting at Brunswick pre-: cinct 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 Niger, 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 Niger’s request; that the inspector who received the ballots knew that Niger 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 Niger, in order to defeat the election of petitioner. From a judgment in favor Jof 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: “First. — That the constitution of Mississippi shall never be so amended or-changed as to deprive any citizen, or class of citizens, of the United States of the right to vote, who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whei’eof they shall have been duly convicted under the laws equally applicable to all the inhabitants of said state; Provided, that any alteration of said constitution, proscriptive in its effects, may be made in regard to the time and place of residence of voters. “Second. — That it shall never be lawful for the said state to deprive any citizen of the United States, on account of his race, color and previous condition' of servitude, of the right to hold office under the constitution and laws of said state, or, upon any such ground, to require of him any other qualifications for office than such as are required of all other citizens. “Third. — That the constitution of Mississippi shall never be so amended or changed as to deprive any citizen, or class of citizens, of the United States of the school rights and privileges secured by the constitution of said state.” 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 elefetors.” ■ 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 constitution provides that, on and after the first day of January, A.D. 1892, every elector shall, in addition to the foregoing qualifications, be able to read any section of the constitution of this state, or he shall be able to understand the same when read to him, or give a reasonable interpretation thereof. The election ordinance adopted by the constitutional convention of 1890 provides the method for conducting elections. This ordinance contains, among other provisions, one requiring every voter, unless prevented bj' blindness or other physical disability, before casting 'his ballot, to retire into a voting apartment, and prepare his ballot by marking it with ink, the effect of which provision is that the voter must possess, to a limited extent, the ability to read. It is submitted that the constitution of 1890 is invalid, because never ratified by the people. Jamison on Con. Conventions, §§415, 418, 479, 520; Cooley, Con. Lim., 41. True, neither the constitution of 1817 nor that of 1832 was submitted for ratification^ but the former was passed pursuant to an act of congress, while the latter was framed pursuant to a provision contained in the former. The constitution of 1869 was at last, in recognition of the prevailing principle, submitted for ratification. This constitution prohibited any changl, alteration or amendment except upon submission to popular ^ote. We submit also that the act of congress, re-admitting the state into the union, was violated by changing the basis of suffrage.