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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.”