The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-04-30
.UPCHURCH GETS It
Three Votes Lost On
Either Side.
Nominee For Alderman Second Dr.
vision Fourth Ward, Wrong Mark
ed Ballot Out, Indian Blood
Man Legal Voter.

Judge Fred Moore, presiding at this
term of Wake Civil Court, yesterday
decided that J. Sherwood Upchurch,
the Democratic nominee for alderman
from the second division of the fourth
ward. having received majority of
one vote over G.. w. Goodwin. Three
votes were taken from each candidate
by the decision, the vote as ordered
now standing, Upchurch 30, Goodwin
81. The votes for Upchurch thrown
out were those of John Britt, Lonnie
Johnson and Henry Johnson, these
men having lived less than four
months in that ward.
For the same cause the votes of
Calvin Perry and G. 7. Neal, for
Goodwin, were thrown out and the
judge held as a matter of law, that
the improperly marked ballot which
had been counted for Goodwin should
be thrown out. David Nelson. who
was charged with having Indian blood
in his veins, was only part Indian. and
it was held that the spirit of the rule
adopted by the City Executive Comit-
tee was not to exclude any Demo-
crat on account of race or color.
Judge Moore was asked to deter
mine the question as to whether the
new or old executive committee is now
i'm power, and he decided that the new
committee has been in power since
they met and entered upon the proper
discharge of their duties, and after
their election had been properly ascer-
tanned and declared.
Judge Moore's Decision.
Judge Moore in announcing his de-
CiSion, spoke as follows
Il find that a primary was regularly
held on the goth of April. and that the
contestee, Upchurch, received 35 votes,
and the contestant, Goodwin, received
"a votes for aldermen of the second
division of the fourth ward of the
city of Raleigh.
Il also find that Jno. l.. Britt voted
for the contestee. Upchurch, and that
he was not qualified elector of the
second division of the fourth ward;
that Lonnie Johnson voted for the
conteStee. and he was not a qualified
elector of the second division of the
fourth ward; that Henry Johnson
voted for the contestee, and was not
a qualified voter of the second division
of the fourth ward: that there was no
evidence that w. E. Austin voted for
the contestee. 1t was admitted that
Upchurch received 35 votes and after
deducting the votes of Britt, Lonnie
and Henry Johnson this left 80 legal
votes cast for Upchurch.
81 find, also, that Calvin Perry voted
for the contestant, Goodwin, and he
was not qualified eiector of the sec
ond division of the fourth ward; that
Gilbert T. O'Neal voted for Goodwin
and was not qualified voter. l hold
as a matter of law that the Improperly
marked ballot could not be counted for
the contestant for the reason that the
primary law SAYS plainly that such Il
ballot shall not be coSnted. After de-
III
and the Improperly marked ballot
from the "a votes which it was adj
mitted was cast for the contestant
Goodwin this left 81 legal votes cast
for the contestant. The conteStee Up
church received majority OF one OF
the legal votes cast tor aldermen in
the second division of the fourth ward,
and he is the duly elected nominee (.
the Democratic party Tor alderman
from the second division of the fourth
ward.
Il find that Nelson was a duly quail
fed elector of the second division of
the fourth ward and voted for the
contestant Goodwin. In the first place
L was satisfied that the spirit of the
rule adopted by the City Democratic
Executive Committee was not to eX-
clude a man who had strain of In
dian blood, as Nelson has, but associ-
ates with the people and is received
as white man; and in the next place
in a legaliZed primary every member
of the party holding the primary cleo
ton is entitled to vote without regard
to race or color the only test beng
whether the person offering to vote is
a member of the party holding the
localized primary election
Judge Womack requested Judge
Moore to make q ruling on the queS-
ton as to which executive committee
is now in power. SO as to decide which
committee shall provide the ballots
and prepare for the election next
Tuesday.
Upon this point Judge Moore held
that the term of office of the commit
teemen elected on the 10th of April
began upon their meeting and entering
upon the discharge of their duties
after their election had been properly
ascertained and declared by the old
executive committee, and that the
Democratic Executive Committee
elected on the goth instant is now the
Democratic Executive Committee foi
the city of Raleigh The new COM
mittee were made parties to the action
and the Judgment will find them As
well as the old committee and the con-
testant and contestee, all of whom are
now parties to the action.
The formal order made by Judge
Moore is as follows:
This cause coming on to be hears
before the court, a jury trial having
been waived, upon ali of the testimony
it is considered ordered and adjudgeC
by the court that j. Sherwood Up.
church received thirty-two votes as the