50th General Assembly, 1897-1898
Session convened 4 January 1897
Roll call:
“When Montgomery County was reached, G. S. Gilbert filed notice of contest
against J. M. H. Graham, and protest was also made against
said J. M. H. Graham being sworn in on the ground of ineligibility,
and the same ruling as above* was made, and the holder of the sheriff’s
certificate took the oath.”
* In the previous case, involving Lincoln County, “The Clerk ruled that the Sheriff’s certificate being bona fide and unattacked, nothing remained but for [Mr. Graham] to be sworn in, and at a later date the House might take action in the premises as in its discretion it should see fit.”
On the second day, 5 January, Morgan Cassius Fitzpatrick of Trousdale County was chosen Speaker over A. H. Pettibone of Greene County on the first ballot.
Graham participated in the voting for the other officers of the House, was present for the report of Governor Peter Turney and the introduction of a number of bills, and was appointed to the Commerce and Federal Relations Committees. He was present and voted on legislation through the morning of January 20, except for absences on Tuesday, 12 January; Friday, 15 January; Saturday 16 January (“excused on account of sickness”). Then, late in the session of January 20, this report was delivered:
“Pending
further consideration, the following report was received from the Committee
on Elections:
“Mr.
Speaker—Your Committee on Elections have carefully considered the case
of George S. Gilbert, contestant, vs. J. M. H. Graham, contestee, submitted
to them for investigation, and respectfully submit the following report: That
on the convening of the present session of the Legislature the said J. M.
H. Graham presented a certificate of election from the Sheriff of Montgomery
County, Tennessee, and was sworn in and took his seat as a member of this
House; that on January 4, 1897, George S. Gilbert gave the said Graham written
notice that he would contest his seat, upon the grounds of ineligibility,
and soon thereafter filed with this committee, his written petition for contest,
admitting that contestee, Graham, received the majority of the votes cast
in the November election, 1896, for Representative for Montgomery county,
Tennessee, but charging that the said Graham was not eligible to said office
because he had not been a citizen of this State for three years as required
by section 9, Article 11, of the Constitution of this State, which
is as follows: ‘No person shall be a Representative unless he shall
be a citizen of the United States of the age of twenty-one years, and shall
have been a citizen of this State for three years, and a citizen of the county
he represents one year, previous to the election.’
“Said
petition also charged that the said Graham had been a resident and citizen
of the city of Louisville, State of Kentucky, for two or three years immediately
preceding October, 1895, and that during said time he registered, and in fact,
voted in the various elections held in said city and State.
“The
committee gave said Graham time in which to answer said petition, and the
said Graham did, in fact, file his answer denying said ineligibility, but
admitting that he had from time to time been employed in the State of Kentucky,
and that he had spent a considerable portion of his time in said State, but
insisting that it had never been his intention to change his citizenship from
the State/
“As
to the charge of registering and voting in the State of Kentucky, the said
Graham neither admitted or denied it, but made no reference whatever thereto
in his answer. the only issue made by the pleadings in this case is
that of the eligibility of the contestee.
“After
the pleadings were all filed and the issue made, the committee fixed the time
in which each side should take its proof, and directed the same to be by deposition
taken as prescribed by the laws of this State. Copies of records were
also to be certified to as prescribed by law. A number of depositions
were taken, and are now on file and in possession of the committee, as are
also all the papers and pleadings herein referred to.
“Among
the depositions is that of the Circuit Court Clerk of Montgomery County, Tennessee,
F. D. Daniel, who testified that the contestee, Graham, admitted to him in
Clarksville, Tennessee, about one week after the November election, 1896,
that he had lived in the State of Kentucky for three or four years just previous
to November, 1895, and that he registed [sic] to vote in the Governor’s
election in 1895. He, Graham, also claimed in this conversation that
he and others had investigated, [sic] the matter and that one year’s
residence in this State just prior to election of 1896 made him eligible as
a Representative from said County.
“The
deposition of W. J. Smith, of Clarksville, Tennessee, was also taken, and
he testified that the contestee, Graham, admitted to him soon after the November
election, 1896, that he had lived in Louisville, Kentucky, for about three
years prior to October, 1895, and that he had voted there several times, and
only returned to Clarksville, Montgomery County, Tennessee, to live in October,
1895, and that he had voted in every election at which he had a chance while
living in the State of Kentucky, and had registered to vote in the Governor’s
election in Kentucky in November, 1895. Mr. Smith also testified that
he also heard Graham contend that a year’s residence in a State was
sufficient to make him eligible.
“Mr.
Smith testified further that he saw contestee, Graham, in Louisville, Kentucky,
in September or October, 1895, and had a conversation with him, in which Graham
said he had been living in the State of Kentucky for three or four years,
and that he was then employed in the Louisville, Kentucky, post-office.
“Mr.
Smith also testified that he was one of the registrars for Clarksville, Tennessee,
for the November election, 1894, except the last day, and was one of the registrars
in August registration in 1895, and for supplementary registration for city
of Clarksville, Tennessee, 1896, and that the contestee did not register for
any of these elections.
“There
was also filed with the committee, and which is now in their possession, a
copy of the registrations books of the city of Louisville, State of Kentucky,
for November election, 1895, all duly and legally certified under the Act
of Congress, which shows that the said J. M. H. Graham, colored, registered
to vote, and did, in fact, vote in the November election, 1895, in the city
of Louisville, State of Kentucky.
“The
contestee, Graham, took two depositions at Clarksville, Tennessee, J. W. Jackson,
his brother-in-law, and J. W. Page. Jackson testified that the contestee,
Graham, had made Clarksville, Montgomery County, Tenn., his home ever since
he had known him, twenty-three years, and had never voted elsewhere to his
knowledge.
“On
cross-examination he testified that he could not say that Graham had never
voted elsewhere, and admitten [sic] that Graham had been working
in the State of Kentucky, teaching school at Allensville, Elkton and Broomfield,
and that he had also held a civil service appointment in the city of Louisville,
Kentucky, but could not state how long he remained at either place. Said
Graham would always come to Clarksville during vacations and holidays. Some
of his books, clothes and things had been with Jackson in Clarksville since
1880.
“The
only material testimony brought out in the deposition of J. W. Page, was the
fact that he had signed an application as voucher for said J. M. H. Graham
to be admitted to a civil service examination to be held at Louisville, Ky.
“The
said Graham was also permitted, after the case was called up for trial, to
file affidavits of these persons taken in Louisville, Ky.; but their affidavits
rather weaken than strengthen the case of contestee, as they go to show that
he surely lived in Louisville, Ky., for at least three years just prior to
October, 1895, and that he was occupying the same number of residence, ward
and precinct, and that his said party affiliation and name are identically
the same as given in said copy of registration books of the city of Louisville,
Ky., at the time of said registration, to-wit: October 2, 1895.
“The
fact that said Graham refused to testify about his registration and voting
when in the State of Kentucky, considered together with the other proof in
the case, make it conclusive to your committee that he did do so, and that
he had been a resident of that State for at least three years prior to October,
1895, and that he was not a citizen of this State until after October 1895,
if he was even then, and that he is therefore ineligible to the office which
he now holds.
“The
committee is also of the opinion that contestant, George S. Gilbert, is not
entitled under the law to contestee’s seat. they therefore recommend
that Contestee Graham’s seat be declared vacant, and that the fact be
properly certified to the Governor that he may act in the premises.
“The
committee also recommend House Resolution No. 9, which declares the seat of
said Graham vacant, for adoption. Kinney,
Ch’n.
“The report, involving the right of a member to his, being a privileged
question, was at once taken up.
“On motion, the report and House Resolution No. 9, declaring seat of J. M. H. Graham vacant, were adopted by the following vote:
“Ayes . . . . . . . . . . . . . . . . .76
Noes . . . . . . . . . . . . . . . . . .00”
[The names of the voting members are listed.]
“A motion to reconsider was tabled.”
[Two other bills are discussed.]
“On motion of Mr. Brandon of Stewart, the Clerk of the House was ordered to notify the Governor that the seat of Mr. J. M. H. Graham had been declared vacant.”