The opinion
PETITION TO REHEAR.
McAlister, J.
This cause was decided at a former day of the term, when the Court adjudged that contestee, John D. Sharp, had been duly elected Sheriff of Davidson County, by a majority of six votes. This result was reached upon a consideration only of the assignments of error to the judgment below made by the contestant, Moore. We did not *520 pass upon the errors assigned on behalf of contestee, Sharp, for, since he was entitled to an affirmance of the judgment below, upon the errors assigned by contestant, we did not feel called upon to adjudicate the questions raised in the assignments of error made by contestee. We did state, however, in our original opinion, that we had examined the assignments of error made on behalf of Sharp, and had discovered errors committed against him which would largely counterbalance the errors committed in his favor.
Counsel for contestant, however, were not to be discouraged by this statement of the Court, and have presented a petition to rehear, accompanied by briefs, which raise questions presented on the original hearing, and press them with renewed zeal and ability. We have examined this petition, and the errors alleged to have been committed by this Court, with scrutinizing care, verifying the many citations with comparison of the record, poll books, delinquent lists, and other exhibits. It is not possible at this time to discuss seriatim each individual vote challenged, hence we will only notice such as have been especially emphasized by counsel.
Second Ward. — Complaint is made that the Court, on the original hearing, charged contestant, Moore, with the vote of W. L. Oliver, upon the ground that, as a delinquent poll tax debtor, his vote for Moore was illegal. Counsel now show by the record that W. L. Oliver, at the time he voted, was fifty-four years of age, and hence not liable for a *521 poll tax. It is obvious this vote was improperly charged to contestant by the Court below, and this error will now be corrected.
Ninth Ward. — It is urged on behalf of contestant that the Court below was in error in charging to Moore the vote of Thomas A. Murphy, as a delinquent poll tax debtor. The record shows that Thos. A. Murphy voted for Moore on a poll tax receipt issued to Martin Murphy. The theory of contestant’s counsel is, that this receipt was, intended. for Thos. A. Murphy, but was inadvertently issued to Martin Murphy. We do not find any satisfactory explanation of this discrepancy. The vote was prima facie illegal, and we think was properly charged to Moore by the Circuit Judge. The proof is clear that Murphy voted for Moore. Again, it is assigned as error that Sharp was not charged by the Circuit Judge with the vote of Chas. T. Moore, who, it is alleged, had removed and failed to reregister, as required by the Act of Assembly. Moore was examined as a witness and swore that he did register, and we find no evidence to overthrow his positive swearing.
Thirteenth Ward. — The complaint made in this ward is, that the Court below charged the vote of John Snider to contestant, Moore, upon the ground that Snider had changed his residence in the ward, and had failed to reregister. It is insisted this was error, for the reason that Jno. Snider did not, in fact, vote in said election. We have examined *522 the poll-books of this ward, and no such name appears in the list of voters. We therefore hold this exception well taken.
Seventeenth District. — It is assigned as error that the Circuit Judge charged to contestant, Moore, the votes of six illiterates whose ballots were marked for them, but who were not laboring under any physical disability that authorized it. The names of these illiterate voters were not given in the tabulation made by the Circuit Judge, and this, it is insisted, was error.
The facts in connection with these voters, as disclosed by the record, are, viz.: J. W. Wright, who acted as Deputy Coroner in this district, and who held the election, and whose duty it was to ■ mark ballots for those who by reason of blindness or other physical disability were unable to mark for themselves, testified that, as the officer holding the election, he marked six, eight, or ten ballots for colored voters who were not blind or otherwise physically disabled. The witness further testified that he marked them for the straight Democratic ticket, which, of course, included contestant, who was the Democratic candidate for Sheriff. It is true the names of these illiterate voters whose ballots were thus illegally marked for contestant, are not given, but the record leaves no room for doubt that there were from six to ten of these illegal ballots. The Circuit Judge only charged contestant, Moore, with six of these votes, which' was the lowest number stated by any *523 witness to have been illegally marked. In this, contestant certainly has no ground to complain.
The other assignments are directed to alleged errors of the Circuit Judge in prorating illegal votes. The Circuit Court declined to ^prorate the vote of any voter unless there was some attempt made to prove for whom he voted. Contestant, in this petition to rehear, only offers to apportion the illegal votes in certain -wards and districts. Under the ruling made by this Court on the original hearing, all illegal votes must be prorated, whether there was any proof tending to show how they were cast or not. Applying this rule to all the wards and districts, the apportionment of illegal votes leaves a balance in Sharp’s favor.
On the original hearing we stated that, upon examination of the assignments made on behalf of con-testee, Sharp, we had discovered errors to his prejudice which would counterbalance the errors committed by the Court in his favor. We think a very palpable error was committed by the Court below in ruling that an order or resolution passed by the County Court of Davidson County, in 1894, exempting from the payment of poll taxes all inmates ‘ ‘ now ” or “ then ’ ’ in the County Asylum, was a sufficient exemption for all the inmates who voted in the- August election, 1896. There were eight of these votes cast for contestant, Moore, which the Circuit Court declined to deduct from his aggregate. This action was erroneous *524 for the following reasons: Sec. 687, Shannon’s Code, provides,' viz.: “Any person incapable of labor, wishing to have himself declared exempt from poll tax, shall apply to the County Court by petition, stating the ground of his claim therefor, and if the Court, upon hearing the petition and the testimony produced before them, be of opinion that the petitioner is incapable of labor, they shall declare him to be so of record, and a production of a copy of same, duly authenticated, to the collector, shall be his authority for omitting to collect the poll tax from such person.” This is the mode, and the only mode prescribed by law, for the exemption of any voter from the payment of poll tax. It is not pretended that this statute was observed in a single instance in the eight votes now challenged. The only claim these voters offered for exemption from the payment of poll tax was, that in 1894, two years prior to this election, the County Court passed a resolution exempting from poll tax all inmates then in said County Asylum. There is not a syllable of proof that any one of these eight voters was an inmate of the County Asylum in 1894, when this blanket resolution was adopted. These voters were all liable to a poll tax, and there being no valid exemption, and it affirmatively appearing that their ballots were cast for Moore, they must be ■ deducted from his column.
Without noticing other errors assigned by con-testee, some of which are well made, we adhere to our original judgment, and dismiss, the petition to rehear.