The weekly soliphone., 1915-05-21
ELECTION INDICTMENTS ARE
DEMURRED OUT OF COURT .
While Law Puts Penalty on Illegal Voting in
State and County Elections, 1t Does Not
Extend to Municipal Elections State
Appeals to Supreme Court.
(From Mondays Daily Press)

rom MOuudy bdlly iOoo'
BY sustaining the demurrer filed
this morning by Senator j. M.
Futrell and Judge j. l.. Light to
the indictment found by the recent
grand jury against E. l. Mckinley,
charging that as one of the election
judges in the First ward in the re-
cent municipal election, he corrupt
Wy permitted illegal voting, all the
one hundred and thirtysix indict-
ments returned against the parties
alleged to have voted illegally and
against the judges who held the
election in the three wards, were
practically thrown out of court
/ However, the cases were continued
until the next term of court, in
view of the fact that the state,
through Robert E. Fuhr, deputy
prosecuting attorney, took an ap-
peal to the supreme court in order
that final ruling might be OBJ
tanned on legal points involved.
The indictments were found un-
der Section 1866 of Kirby's Digest
This section is a part of an cleo
ton law passed in 1875 and makes
it felony for any person to vote
in a general election without the
proper poll tax receipt, and fur
Their makes it felony for any
judge of an election to permit lille
gal voting.
Senator Futrell filed a demurrer
to the indictment on the allegation
that no offense had been committed
under the law in this state. Sup
porting this motion, Senator Fut-
rell called the attention of the
court to the language of Section
1866, passed in 1875, and said it
had no reference whatever to mu-
nicipal elections, because the legis-
lature in 1895 passed an act au-
thorizing the holding of general
municipal elections and specified
they must be held and conducted
in the manner prescribed by law
for holding state and county cleo
tions. He contended the legisla-
ture by reference" to the act Of
1875 could prescribe the method
and procedure of holding city
elections. but it could not by such
implication or reference define
crime and prescribe the penalty,
that in order to accomplish the lat
ter result it was necessary to en-
body the full language of the act.
He further contended the offense,
if it existed at all, was purely stat
utory and could not be written in
to the law by reference to a former
act of the general assembly. He
was supported in this contention by
several supreme court decisions.
1t further developed in the argu-
ment made by Senator Futrell that
the tax collector is required by law
to file with the county clerk an
nually a list of the qualified cleo
tors OF the county, sworn to by the
collector, and it is the duty of the
election commissioners to have this
sworn list of voters printed in suf-
hcient quantity to supply the judg-
es with copies at all general cleo
lions held during the year. He con-
tended no such list was furnished
the judges in the recent city cleo
ton, and If illegal votes were polled
the blame lay with the commits
sioners and not with the judges.
One decision Of the supreme court
was ready to support this conten-
tention. He stated the CITY council
had authority to pass an ordinance
to punish those who voted illegally
in city elections.
In sustaining the demurrer filed
by Senator Futrell, Judge Gautney
said municipal and school elections
were In the same class; that while
poll tax receipt was a necessary
prerequisite to the exercise of the
voting franchise in these elections,
the law in this state does not make
II an offense to vote without such
receipt, except in county and in
township elections.
Robert f. Fuhr, representing the
state, excepted to the ruling of the
court and stated he would take an
appeal to the supreme court. All
the cases were continued until the
next term of court to await the de-
cision of the supreme court.
The ruling of Judge Gautney does
not in any sense change the quail
flcations necessary for voting, nor
does it affect the contest proceed
lngs instituted by J. T. Hester to
GUST Mayor w. c. Middleton. The
latter lase will come up for argu
ment at five O'Clock this afternoon