The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-12-06
BUT NOT YET DECIDED
EACH RECEIVED EXACTLY SAME
NUMBER VOTES.
COZART WENT IN ON A RECOUNT
Fleming Attacks the Validity Of the Recount
and Asks that New Election be Or
derad. Decision not Expected
Before Next Week.

Before Next Week.
The Supreme court yesterday after
noon heard argument in the case Of Co
Fart VS. Fleming from Granville county
Cozart was represented by Mr.. T. t.
Hicks, of Henderson, and Fleming by
Judge \. w Graham, of Oxford, and
Maj. John w. Graham, of Hillsboro.
Owing to its public Importance, the
case was taken up by the court out Of
its regular order.
In the election each candidate for
sheriff received 2,216 votes, and under
the election law it was the duty Of the
Clerk of the Court to call new election.
Before he did so Cozart applied to Judge
Undertake for an injunction to restrain
him alleging that several persons not
legally qualified had been allowed TO
vote for Fleming, and four lawful cleo
tors had been prevented from voting for
him (Cozart), and also demanded re-
count.
Fleming denied having received any
unlawful votes, and alleged that large
number of illegal votes had been cast
for Cozart by young negroes under q
years of age and other persons not
qualified, and alleged that he (Fleming)
had been duly elected, but that he was
perfectly willing to again submit the
matter TO the people and abide by their
decision.
The judge ordered recount, and It
was found that there were two more
ballots in the box for Cozart than for
Fleming, whereupon Judge Undertake
ordered the clerk to so declare and the
Board of Commissioners to induct him
into office. The judge declined to con-
slider the allegations in regard to Illegal
ballots, and other suggestions and the
defendant Fleming appealed to the SUI
preme court.
In the argument of the case yester-
day speeches were made by Major John
w. Graham, Mr.. Il. II. Hicks and Judge
w. A. Graham.
Attorneys for the plaintiff Fleming
contended that the candidates having re-
ceived the same number Of votes there
was no election and the only remedy. VA 4
IL new election. They argued that be-
fore any order could be made giving eth
or party the office, the clerk having
once made out and published the re-
turns and declaring the election a tie,
there must be a trial by jury, An office
has been declared private property by
the courts and private property can be
taken away only by due process of law.
In case of IL recount of ballots, as in
IN hn fn hot nr
the ballots counted are really the bal
lots cast certainly ought to be n mat
ter for the jury. The public declaration
Of the result is official, and should pre-
vail above any subsequent recount until
there is a trial of the facts.
In ordering a recount and declaring
Cozart elected, Judge Timberlake was
acting under section of the Election
Law, argued Maj. Graham. That sec
ton gives the court general supervisory
powers over all election officers in the
event they violate the law. The clerk,
in this case had not violated the law.
He was only seeking to carry it out.
And even if the court could order a re-
count, the result of it could only be
used as evidence in the trial of the
case.
Justice Montgomery: "Is it your idea
that this new election ought to be called
to put in the office the man whom the
people want"
Mai. Graham: at is--a man about
whose legal election there can be no
doubt In some Of the States the rule
is, in case of tie, to draw lots In
North Carolina we have a better method
IA new election"
Speaking for the defendant CoZart
Mr.. Hicks argued that the plaintiff had
offered no objection to a recount; that
he had rather seemed anxious for it,
alleging that he had received certain
votes that had not been counted for
him; that as he had failed after the
recount to attack the integrity of the
ballots or their safe keeping there could
be no facts to go to Il jury. For on
this one thing, continued Mr.. Hicks, de-
ponds this whole case-whether those
ballots recounted are the ballots cast.
Numerous authorities were cited by
both sides.
At the conclusion of Judge Graham's
speech for the plaintiff, in reply to Mr.
Hicks, the court took the case under
adyisement. The opinion will hardly be
handed down before next Tuesday.
The court can do but one of three
things:
1t may sustain Judge Undertake in
ordering a recount, and on the result
giving CoZart the office without any in
quiry into the facts connected with the
recount.
Ii may order or direct the clerk of
court OF Granville county TO order
new election for sheriff.
II may order a new count and sub
mission Of the facts 10 a jury to decide
as to the fairness Of the count and
the validity of the ballots.
1t is probable that a new election will
be ordered.
FEDERAL COURT THIS WEEK.