Tulsa daily world. [volume] (Tulsa, Indian Territory [Okla.]) 1905-1919, 1911-02-21
COTTERAL HEARS
ELECTION Cases
UNITED STNlES JUDGE CONSID-
EkS GRANDFATHER CLAUSE"
.ENBRY ATTACKS The LAW
Government Attorney Declares Okla
Iona Statute Dcpriyc- Negroes
Unjustly OF Vote

thc adoption OF the fifteenth amend
mcut to the United States constitu-
don, YOU can put a negro in separate
school and YOU can put him in a "jim
crow coach, because Of his race and
color but YOU cannot take from him
the elective franchise"
This was the declaration OF Judge
John Embry OF Guthrie United States
district attorney during his argument
leiore United states Judge John II
Cotteral here today In support OF the
sufliciency OF the indictments recently
returned under Embry as prosecutor
against Duke Jernies and willard
Smith Of Seward, j j Beal Jack
Quinn and Harry Neal OF Kingnsher
County on charges of conspiracy,
through enforcing the states grand
father clause law which Is prohibited
by federal statute.
Appearing for the defendants as at
tornoys were w. A. Ledbetter Of Ok
lohoma CITY former private counselor
TO Governor Haskell, Judge G B.
stuart Of McAloster, former United
States attorney under President Cleve-
land, Norman Haskell. a son OF the
former governor; Fred Branson OF
Muskogee chairman OF the Democrat
ic state committee. and c.. G Horner
of Guthrie, They appeared not only
for the defendants, but also for the
state as defending a state law. and
with the exception OF Elorner. for the
Democratic committee. These attor-
neys are paid by legislative approprtu-
ton approved by Governor Cruce.
Embry made his strong point on the
! fact that the oklahoma grandfather
clause proddes an educational test
and then submits to the test only
such persons or their descendants who
could not vote under some other form
Of government prior TO 1866.
! Tho phrase, under some other
form Of government Embry declared
simply revises the laws OF all other
states existing prior TO 1866 relative
TO qualification of voters. and he
added that in no state was any class
| prevented from voting because OF
]
excepting the negroes therefore, the
Oklahoma law, by re-enactlng all ne
gro disfranchsns laws of other states
seeks to and does disfranchise only
the negro by compelling him to sub
NIT to tho educational test because Of
his race, color and previous condi-
tlon of servltude,
1t Is an interesting fact that Embry
| Is a Southern man, native OF Ken
lucky and the author OF the only sep
arote school law oklahoma has ever
| had.
The attorneys for the defendants
argued that the oklahoma grand
/ father clause" statute Is constitutional
that it has been sustained by both ap-
Ipelnte courts Of the state and that its
principals have been sustained by tho
| United states Supreme Court. partic-
ularly In Williams w. United States
from Mississippi
They argued also that the federal
criminal statute under which the In
| dictments were returned is unconsti-
/ Itutional, and that II was 50 held by
/ chief Justice Brewer OF the United
States Supreme Court I'm James VS..
| Bowman from Kentucky, and also by
/ Judge Lurton Of the United States
| Circuit Court but recently elevated
/ to the supreme bench by Mr.. Taft.
They made the third point and cited
numerous precedents that though tho
state grandfather claso" statute be
unconstitutional, even then the de-
/ PENDANTS could not be found guilty OF
"a crime because they were but carry
/ Ing into effect the provisions of
state law which the state supreme
court had held constitutional, and the
defendants therefore could not be
charged with any criminal intent
In making his argument, Attorney
/ horner said
/ Justices Brewer and Lurton held
that law 60 protect persons under
the provision Of the fifteenth amend
mout must bc limited to carrying the
provisions into effect and If the law
was broader then it became uncon-
sumuoual
The attorneys for the defense at
tackled particularly the statute under
] NllOu iNr indictments were returned
as unconstitutional holding that tho
fifteenth amendment prohibits q state
from cuuctIug laws 10 dsfunchlse.
whereas the federal statute Is broad
or and tx not aimed at the state, but
/ instead specifics that IL two or more
persons conspre TO prevent negroes
| from voting because OF race and color,
/ thoy shall be punished
Judge stewart made the additional
point that the indictments rs return
ed, charge that the negroes who are
complaining witnesses IN these cases
could read and write, whereas the
Oklahoma law. he declared effected
only such persons AS can not rcld und
write,
only Embry argued for the United
states, whereas Ledbettcr. stuart,
llorner aud Haskell argued for the
defense.
Judge Cotteral tonight took tho
matter under adylsemcnt. and an
nouncing that the grandfather ln-
dictmont cases would be continued
for this term VI court.