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CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 FROM 
 
 Wra.Sulzer 
 
Cornell University Library 
 JK1356 .A3 1901 
 
 A historical and legal digest of all the 
 
 Clin 
 
 3 1924 030 474 864 
 
B Cornell University 
 B Library 
 
 The original of tiiis bool< is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030474864 
 
A HISTORICAL AND LEGAL 
 
 DIGEST 
 
 OF ALL THE 
 
 CONTESTED ELECTION CASES 
 
 IN THE 
 
 HOUSE OF REPRESENTATIVES 
 
 OF THE 
 
 XJlSriTEr) STATES 
 
 FROM THE 
 
 i:iEST TO THE FIFTY-SIXTH OOI^GRESS, 
 
 1789-1901 
 
 BY 
 
 WASHINGTON: 
 GOVERNMENT PRINTTtto nwwTnii'. 
 
 1901. 
 
 T 
 
Resolved hy the House of Representatives {the Senate concumng): 
 . That there be printed and substantially bound two thousand" copies of 
 "A digest of all the contested election cases in the House of Repre- 
 sentatives of the United States from the First to the Fifty -sixth Con- 
 gress, inclusive," compiled by Chester H. Rowell; one thousand five 
 hundred for the use of the House and five hundred for the use of the 
 Senate; and that in addition to said number there be printed and sub- 
 stantially bound five hundred copies, the same to be deposited in the 
 oflice of the clerk of the House and distributed from time to time on 
 his order; and that there be further printed and substantially bound 
 the additional number of fifty copies, ten each to be deposited in the 
 library of the House of Representatives and in the rooms of the Com- 
 mittees on Elections, and ten to be delivered to the compiler." 
 House concurrent resolution, passed the Senate February 27, 1901. 
 
PREFACE 
 
 For more than a hundred years the Committee on Elections of the 
 United States House of flepresentati\'es has enjo^'ed the unique dis- 
 tinction of being the only important judicial or quasi- judicial body in 
 the world which was without any adequate means of reference to its 
 own precedents. This committee is the nucleus from which the whole 
 committee system of Congress has grown. It was the first standing 
 committee appointed by the House of Eepresentatives of the First 
 Congress, and is the only one which has a continuous history coex- 
 tensive with the history of the Government and an independent pri- 
 mary jurisdiction conferred by law. It has always maintained the 
 forms and much more than is popularly supposed of the substance of 
 judicial procedure, and in its reports knd the action of the House upon 
 them is found the only final source of infox'mation and authoritj^ in the 
 law and practice of Congressional contested election cases. These prec- 
 edents, as preserved in the standard text-books of Paine and McCrary, 
 in certain imperfect compilations, and in the unwritten tradition of the 
 committee, have developed a fairl}' coherent bodj' of law, whose prin- 
 ciples are not often nor lighth' departed from; but hitherto no attempt 
 has been made to present the whole bodj' of this law in one view in a 
 form adapted to practical use. As these cases cover some issues which 
 can come before no other tribunal and many others to which no other 
 tribunal stands in the same relation, the propriet}' of preserving them 
 in a form available for reference is obvious. 
 
 Most of the reports in the first fifty-two Congresses are included in 
 the nine volumes known from the names of their compilers as: (1) 
 Clarke and Hall (First to Twenty-third Congress), (2) 1 Bartlett 
 (Twenty-fourth to Thirty -eighth Congress), (3) 2, Bartlett (Thirty- 
 ninth to Forty-first Congress), (4) Smith (Forty-second to Forty-fourth 
 Congress), (5) 1 Ellsworth (Forty-fifth and Forty-sixth Congresses), 
 (6) 2 Ellsworth (Forty-seventh Congress), (7) Mobley (Forty-eighth to 
 Fiftieth Congress), (8) Rowel 1 (Fifty-first Congress), and (9)Stofer 
 <'Fif tj'-second Congress). Since the Fifty -second Congress there have 
 been no compilations of cases. These volumes have received, by cus- 
 tom and courtesy, the ambitious title of " digests," but, aside from the 
 title,, they make no pretense of being anything more than volumes of 
 reports, and even as such the series is incomplete, inaccurate, and 
 almost wholly unedited. Most of the volumes have no index of sub- 
 jects, and not more than one of them has anything approaching a com- 
 plete and accurate index; the syllabi, where any are printed, are usually 
 incomplete, often misleading, and sometimes in direct contradiction to 
 the actual decision; there are several cases not included in any volume, 
 besides the recent cases not compiled, and the volume covering one of 
 
■i PREFACE. 
 
 the most important periods omjts most of the minority reports and 
 large portions of many of the majority reports. The material could 
 scarcely be in more chaotic condition if no compilations had ever been 
 made. " Indeed, from the standpoint of the attorneys who prepare the 
 cases, these compilations may be regarded as practically nonexistent, 
 since access to the very few complete sots in existence is usually 
 impossible. 
 
 It is the purpose of this work to meet the difficulty, so far as possi- 
 ble, by presenting in one volume, compiled from original sources, everj^- 
 thing of permanent value or interest connected with the contested 
 election cases of the past one hundred and twelve years. Obviousl}*, 
 this purpose could not be entirely accomplished by an alphabetical 
 digest of the law of the cases. The original reports are generally inac- 
 cessible and are nearly all ver}' long and complicated, requiring much 
 labor to segregate the matters of permanent interest from those of only 
 temporary importance contained in them. An election case report is 
 at once the finding of a jurj', the ruling of a court of primary juris- 
 diction, the decision of a court of final jurisdiction, ancf an argument 
 addressed to the House, and all of these elements are usually mingled 
 indiscriminately in it. To examine the actual bearing in the case of a 
 rilling of law referred to as having been made in a certain contest may 
 require wading through a hundred pages of discussion of minor issues 
 of fact, of no permanent significance. For the benefit of the com- 
 mittee, then, to whom the original reports may be accessible, no less 
 than of the attorney to whom they are inaccessible, it is important that 
 some substitute for the original reports be prepared which shall bring 
 them within manageable limits. 
 
 More than half of this book is devoted to such a condensation of the 
 cases, arranged chronologically by Congresses. All the reports have 
 been rewritten, as no other course was consistent with the great degree 
 of condensation necessary; but I have endeavored, in reporting the 
 decisions of the committee, to express neither more nor less than the 
 committee decided, even in cases where the decision itself was vague, 
 evasive, or ambiguous. h\ stating the facts and issues of the case, on 
 the other hand, on which a decision was based, I have endeavored to 
 be as clear and specific as possible after exhausting all available sources 
 of information, whether the report of the committee was clear or not. 
 The action of the House is given in every case, and where the discus- 
 sion in the House is important to an understanding of the case an out- 
 line is given of that also. 
 
 The second part of the book consists of the digest proper, an alpha- 
 betical summary, arranged under titles, subtitles, and headlines, with 
 numerous cross-references, of all the law in all the cases. The form 
 of statement differs somewhat from that of the standard digests of 
 court reports, on account of the less formal character of the material 
 digested, and an effort is made to cover, in addition to the formal 
 decisions of definite propositions of law, also every action of the House 
 or of the committee which may be considered as a precedent. The 
 rulings of minority as well as of majority reports are included, and where 
 the recommendations of the minority were sustained by the House 
 this fact is also noted. The references to the compiled cases are to 
 the pages of the ''digests" above mentioned. References to cases or 
 reports not contained in these compilations give the Congress, number 
 of report, and page of the original report. This digest, being alpha- 
 
PREFACE. 5 
 
 betical, serves as an index to itself and to the first part of the book as 
 well; but full tables of contents, cases, and topics are also given in the 
 proper place. 
 
 The Committee on Elections of the Twenty-third Congi-ess on Jan- 
 uary 9, 183i, in reporting a resolution for printing the first compila- 
 tion of election cases, said: 
 
 That, upon an examination of the plan of the work, they are of opinion the same 
 would be useful and conducive to lighten the labors of the committee and of the 
 House in future contests, and calculated to produce uniformity and consistency of 
 decision, which is highly desirable on all such occasions. 
 
 It is my hope that this book will serve in the same sense and on a 
 more comprehensive scale as an aid in the trial and adjudicatioi) of 
 contested election cases, and that it may also arouse some interest in 
 an entirely unworked field of American constitutional and legislatiAe 
 history. 
 
 Chester H. Rowell. 
 
 Fresno, Cal.. JuJij, 1901. 
 
TABLE OF CASES. 
 
 BY CONGEESSES. 
 
 First Congress, 1789-1791: Page. 
 
 1. David Ramsay vs. William Smith, South Carolina 37 
 
 2. yew Jersey members 38 
 
 Second Congress, 1791-1793: 
 
 1. John F. Mercer, Maryland 39 
 
 2. James Jackson vs. Anthony Wayne, Georgia 39 
 
 Third Congress, 1793-1795: 
 
 1. Henry Latimer to. John Patton, Delaware 41 
 
 2. Henry K. Van Rensselaer vs. John E. Van Allen, New York 42 
 
 3. Abraham Trigg vs. Francis Preston, Virginia 42 
 
 4. James White, Soutlnoestem Territory 43 
 
 5. Benjamin Edwards, Maryland 43 
 
 Fourth Congress, 1795-1797: 
 
 1. John Richards, Pennsylvania 45 
 
 2. John Clopton, Virginia 46 
 
 3. Matthew Lyon rs. Israel Smith, 1 'ermont 46 
 
 4. John Swanwick, Pennsylvania 46 
 
 5; Joseph B. Varnum, Massachnsett.^ : 47 
 
 6. David Bard, Pennsylvania 47 
 
 Fifth Congress, 1797-1799: 
 
 1. Robert Rutherford vs. Daniel Morgan, 1 'irginia 48 
 
 Sixth Congress, 1799-1801: 
 
 No cases. 
 Seventh Congress, 1801-1803: 
 
 1. Narsvi'orthy Hunter, Mississippi Territory 49 
 
 2. John P. Van Neas, New York ' '. 49 
 
 3. Paul Fearing Northwestern Territory 50 
 
 Eighth Congress, 1803-1805:. 
 
 1. Andre vir Moore vs. Thomas Lewis, Virginia 51 
 
 2. Duncan JMcFarland ?'.<. Samuel D. Purviance, Vorf/i Carolina 51 
 
 3. Samuel J. Cabell vs. Thomas ^I. Randolph, Virginia 52 
 
 4. John Hoge, Pennsylvania 52 
 
 Ninth Congress, 1805-1807: 
 
 1. Thomas Spaulding to. Cowles Mead, Georgia 54 
 
 2. Michael Leib, Pennsylvaiiia 55 
 
 Tenth Congress, 1807-1809: 
 
 1. Joshua Barney vs. William McCreery, Maryland 56 
 
 2. Duncan McFarland vs. John Culpepper, North Carolina 58 
 
 3. Philips. Key, Maryland 58 
 
 Eleventh Congress, 1809-1811: 
 
 1. Charles Turner, jr., vs. William Baylies, Massacliusiils 60 
 
 2. Thomas Randolph to. Jonathan Jennings, Indiana Territory 61 
 
 Twelfth Congress, 1811-1813: 
 
 1. John Taliaferro vs. John P. Hungerford, Virginia 62 
 
 Thirteenth Congress, 1813-1815: 
 
 1. John Taliaferro to. John P. Hungerford, Virginia 63 
 
 2. Burwell Bassett to. Thomas M. Bay ley, Virginia 64 
 
 3. William Kelly vs. Thomas K. Harris, Tennessee 65 
 
 4. Isaac Williams, jr., vs. John M. Bowers, Neio York 65 
 
 5. Blydenburg and Jay vs. Sage and Lefferts, New York ,. . . 66 
 
 7 
 
8 TABLE OF CASES. 
 
 Fourteenth Congress, 1815-1817: ■^'^8®' 
 
 1. Westel Willoughby vs. William S. Smith, New York. .■ 67 
 
 2. Robert Porterfield vs. William McCoy, Virginici 67 
 
 3. Erastus Boot vs. John Adamw, Ni-ii> York .: 68 
 
 4. Rufus Easton vs. John Scott, Mimmri Terrilory.. 68 
 
 Fifteenth Congress, 1817-1819: 
 
 1 . Charles Hammond vs. Samuel Herrick, Oh in 70 
 
 2. Elias Earle, South CqroUna J3 
 
 3. George Mumford, North Carolina 73 
 
 Sixteenth Congress, 1819-1821: 
 
 1. Rollin C. Mallary vs. Oraamus C. Merrill, Vcrminit ij) 
 
 2. James Guyon vs. Ebenezer Sage, New York 76 
 
 Seventeenth Congress, 1821-1823: 
 
 1. Philip Reed vs. Jeremiah Cosden, Maryland a 
 
 2. Cadwallader D. Colden vs. Peter Sharpe, New York 78 
 
 3. Matthew Lyon vs. James W. Bates, Arkansas Territory 78 
 
 Eighteenth Congress, 1823-1825: 
 
 1. Parmenio Adams vs. Isaac Wilson, Nevj York 79 
 
 2. John Biddle vs. Gabriel Richard, Michigan Territory 80 
 
 3. Sundry electors -i's. John Bailey, Massachusetts 80 
 
 4. John Forsyth, Georgia S2 
 
 Nineteenth Congress, 1825-1827: 
 
 1. Daniel Hugunin vs. Egbert Ten Eyck, New York 83 
 
 2. John Biddle and Gabriel Richard >■». Austin E. Wing, Mkldgaa Ter- 
 
 ritory ■_ S3 
 
 3. Sundry citizens vs. John Sergeant, Pevnsylvanin 85 
 
 Twentieth Congress, 1827-1829: 
 
 No cases. 
 Twenty-first Congress, 1829-1831: 
 
 1. Silas Wright, jr. , vs. George Fisher, New York 87 
 
 2. George Loyall vs. Thomas Newton, Virginia 87 
 
 3. Thomas D. Arnold vs. Pryor Lea, Tennessee 89 
 
 4. Reuel Washburn w. James W. Ripley, Maine 91 
 
 Twenty-second Congress, 1831-1833: 
 
 1. David Crockett vs. William. Fitzgerald, Tennessee 94 
 
 2. Joseph Draper vs. Charles C. Johnston, Virginia 94 
 
 Twenty-third Congress, 1833-1835: 
 
 1. William Allen, Ohio 97 
 
 2. Robert P. Letcher vs. Thomas P. Moore, Kentucky 98 
 
 Twenty-fourth Congress, 1835-1837: 
 
 1. David Newland vs. James Graham, North. Carolina 105 
 
 Twenty-fifth Congress, 1837-1839:. 
 
 1. Samuel J. Gholson and John F. H. Claiborne, Mississippi 106 
 
 2. James D. Doty vs. George W. Jones, Wisconsin Territory 107 
 
 Twenty-sixth Congress, 1839-1841: 
 
 1. The New Jersey case 109 
 
 2. C. J. IngersoU vs. Charles NaylOr, Pennsylvania 112 
 
 Twenty-seventh Congress, 1841-1843: 
 
 1. Joshua A. Lowell, Maine 114 
 
 2. David Levy, Florida Territory 114 
 
 Twenty-eighth Congress, 1843-1845: 
 
 1. Members elected by general ticket 117 
 
 2. William L. Goggin vs. Thomas W. Gilmer, Mrginia 120 
 
 3. John M. Botts vs. John W. Jones, Virginia 122 
 
 Twenty-ninth Congress, 1845-1847: 
 
 1. William H. Brockenbrough vs. Edward C. Cabell, Florida 123 
 
 2. Isaac G. Farlee vs. John Runk, New Jersey 124 
 
 3. Edward D. Baker, Illinois; Thomas W. Newton and Archibald Yell, 
 
 Arkansas 125 
 
 Thirtieth Congress, 1847-1849: 
 
 1. James Monroe vs. David S. Jackson, New York 126 
 
 2. H. H. Sibley, Wisconsin Territory 127 
 
 Thirty-first Congress, 1849-1851: 
 
 1. Hugh N. Smith, Neio Mexico 129 
 
 2. A. W. Babbitt, Deseret 130 
 
 3. Daniel F. Miller vs. WiUiam Thompson, loioa 130 
 
 4. John S. Littell vs. John Bobbins, jr. , Pennsylvania 133 
 
tabIjE of cases. 
 
 Thikty-fiest Congress — Continued. Page. 
 
 5. Jared Perkins vs. George W. Morrison', Nnc Hampxhire 135 
 
 6. W. S. Messervy, New Mexico 135 
 
 Thirty-second Congress, 1851-1853: 
 
 1. Hendrick B. Wright vs. Henry M. Fuller, Pennsylvania 137 
 
 TniRTY-THIED CONGRESS, 1853-1855: 
 
 1. William Carr Lane vs. Joa6 Manuel Gallegos, Nev: MeTico 140 
 
 Thirty-fourth Congress, 1855-1857: 
 
 1. J. S. Turney vs. Samuel S. Marshall, and P. B. Fouke r!<. Lyman Trum- 
 
 bull, Illinois 141 
 
 2. William B. Archer vs. James C. Allen, Illinois 142 
 
 3. James A. Milliken vs. Thomas J.' D. Fuller, Ifaive 143 
 
 4. Miguel A. Otero vs. Jos6 M. Gallegos, Neiv Me.rico 144 
 
 5. A. H. Beeder vs. J. W. Whitfield, Kansas 145 
 
 6. Hiram P. Bennet vs. Bird B. Chapman, Nebraska 147 
 
 7. S. B. Clark vs. Augustus Hall, Iowa 148 
 
 8. A. H. Reeder vs. J. W. Whitfield, Kansas (second case) 149 
 
 Thirty-fifth Congress, 1857-1859: 
 
 1. Clement L. Vallandigham vs. Lewis D. Campbell, Ohio 151 
 
 2. Henry P. Brooks vs. Henry Winter Davis, Maryland 154 
 
 3. W. W. Phelps vs. James M. Cavanaugh, Minnesota 154 
 
 4. Alpheus G. Fuller vs. W. W. Kingsbury, Minnesota Territory 155 
 
 5. William Pinkney Whyte vs. J. Morrison Harris, Maryland 156 
 
 6. Bird B. Chapman vs. Fenner Ferguson, Nebraska 159 
 
 Thirty-sixth Congress, 1859-1861: 
 
 1. William A. Howard vs. George B. Cooper, Michigan 1 61 
 
 2. A. J. Williamson vs. D. E. Sickles, Nevo York 163 
 
 3. Samuel G. Daily vs. Experience Estabrook, Nebraska Territory 163 
 
 4. Francis P. Blair, jr., vs. J. Richard Barrett, Missouri 165 
 
 5. James S. Chrisman vs. William C. Anderson, Kentucky 167 
 
 6. William G. Harrison vs. Henry Winter Davis, Maryland 168 
 
 7. William P. Preston vs. J. Morrison Harris, Maryland 169 
 
 Thirty-seventh Congress, 1861-1863: 
 
 1. George S. Shiel vs. A. J. Thayer, Oregon.. 171 
 
 2. John M. Butler vs. William E. Lehman, Pennsylvania 172 
 
 3. Andrew J. Clements, Tennessee 174 
 
 4. Charles H. Upton, Virginia 174 
 
 5. John Kline vs. John P. Verree, Pennsylvania 175 
 
 6. S. Ferguson Beach, Virginia 176 
 
 7. Le Grand Byington vs. William Vandever, Iowa .■ 177 
 
 '8. J. Sterling Morton vs. Sarnuel G. Daily, Nebraska 178 
 
 9. Joseph Segar (first case), Virginia 179 
 
 10. F. F. Lowe, California 179 
 
 11. Charles Henry Foster, North Carolina 180 
 
 12. Joseph Segar (second case), Virginia 181 
 
 13. Benjamin F. Flanders and Michael Hahn, Louisiana 181 
 
 14. JohnB. McCloudand W. W. Wing, Virginia 182 
 
 15. Lewis McKenzie, Virginia 183 
 
 16. John B. Eodgers, Tennessee 184 
 
 17. Jennings Pigott, North Carolina 184 
 
 18. Christopher L. GraflBin, Virginia 184 
 
 19. Alvin Hawkins, Tennessee 184 
 
 Thirty- eighth Congress, 1863-1865: 
 
 1. Lewis McKenzie vs. B. M. Kitchen, Virginia 186 
 
 2. John S. Sleeper to. Alexander H. Eice, Massachusetts 187 
 
 3. Jos6 M. Gallegos to. Francisco Perea, New Mexico 188 
 
 4. John P. Bruce to. Benjamin F. Loan, Missouri 188 
 
 5. Birch vs. King and Price to. McClurg, Missouri 189 
 
 6. Lucius H. Chandler, Virginia 190 
 
 7m Samuel Knox vs. Francis P. Blair, Missouri 190 
 
 8. Robert C. Schenck, Ohio, and Francis P. Blair, Missouri 192 
 
 9. John H. McHenry, jr., to. George H. Yeaman, Kentucky 193 
 
 10. J. B. S. Todd TO. William Jayne, Dakota Territory 193 
 
 11. James Lindsay vs. John G. Scott, Missouri 195 
 
 12. John Kline to. Leonard Myers, Pennsylvania 196 
 
 13. Charles W. Carrigan vs. M. Russell Thayer, Pennsylvania 196 
 
 14. Joseph Segar, Virginia 197 
 
10 TABLE OF CASES. 
 
 Thirty-eighth Congress — Continued. °j^^' 
 
 15. A. P. Field, Louisiana ,-: ,q' 
 
 16. M. F. Bonanzo, A. P. Field, and W. D. Mann, Louisiana i9» 
 
 17. T. M. Jacks and J. M. Johnson, Arkansas ^^^ 
 
 Thirty-ninth Congress, 1865-1867: . , ,^. , . „„„ 
 
 1. Augustus 0. Baldwin vs. Rowland E. Trowbridge, Michigan ^OU 
 
 • 2. Henry D. Washburn vs. Daniel W. Voorhees, Indiana ^ui 
 
 3. WiUiam E. Dodge vs. James Brooks, New York ^^d 
 
 4. Charles FoUett vs. Columbus Delano, Ohio ^"^ 
 
 5. S. H. Boyd vs. John R. Kelso, Missouri ^y° 
 
 6. Smith Fuller vs. John L. Dawson, Pennsylvania - - - - -.- - -. - ^"' 
 
 7. William H. Koontz vs. Alexander H. Coff roth ( two cases ) , Pennsylvania 207 
 
 8. Dorsey B. Thomas vs. Samuel M. Arnell, Tennessee - - ^^-^ 
 
 Fortieth Congress, 1867-1869: „^„ 
 
 1. Colorado case (Hunt and Ohilcott) ^j^ 
 
 2. Columbus Delano vs. George W. Morgan, Ohio..... ^'^ 
 
 3. James H. Burch vs. Robert T. Van Horn, Missouri ^|o 
 
 4. William H. McGrorty vs. William T. Hooper, Utah ^|o 
 
 5. John Hogan OT. William A. Pile, Missouri ^|o 
 
 6. Kentucky members (two cases) ^|° 
 
 7. G. G. Symes vs. Lawrence S. Trimble, Kentucky - - - . - -_ ^i» 
 
 8. AVilliam F. Switzler vs. George W. Anderson (two cases), Missouri 219 
 
 9. Samuel E. Smith vs. John Young Brown, Kentucky 22U 
 
 10. George D. Blakey vs. J. S. Golladay, Kentucky 2Ji 
 
 11. Samuel McKee vs. John D. Young (two cases), Kentucky 22Z 
 
 12. Roderick R. Butler, Kentucky - ^^* 
 
 13. John H. Christy and John A. Wimpy, Georgia 2^ 
 
 14. J. Francisco Chaves vs. Charles P. Clever, New Mexico 2/0 
 
 15. Simon Jones vs. James Mann, Louisiana - - 22b 
 
 16. Caleb S. Hunt vs. J. Willis Menard, Louisiana 22b 
 
 17. Thomas A. Hamilton, Temiessee - ^^° 
 
 18. J. S. Casement, Wyoming - - ^■^^ 
 
 Forty-fiest Congress, 1869-1871: ^ „ , ■ no-, 
 
 1 Henry D. Foster vs. John Covode {prima facie case), Pennsylvania 2di 
 
 2. Caleb S. Hunt vs. Lionel Allen Sheldon (prima fade case), Louisiana. 232 
 
 3. S. L. Hoge vs. J. P. Reed (prima fade case) , South Carolina 233 
 
 4. A. S. Wallace vs. William D. Simpson (prima fade case) , South Carolina. 235 
 
 5. Leonard Myers vs. John Moffett, Pennsylvania 235 
 
 6. Georgia cases . "^" 
 
 7. John Covode 7)S. Henry D. Foster (final case), Pe)!n«!//mra'a 237 
 
 8. Charles H. Van Wyck vs. George AV. Greene, Neir York 239 
 
 9. Caleb V. Taylor vs. John R. Reading, Pennsylvania 240 
 
 10. J. Hale Sypher vs. Louis St. Jtartin, Louisiana. 241 
 
 11. Caleb S. Hunt vs. Lionel Allen Sheldon (final case) , Lrndsiana 241 
 
 12. Frank jMorev vs. George W. MoCranie, Louisiana 243 
 
 13. J. P. Newsham rs. Michael Rvau, Louisiana 244 
 
 14. A. S. Wallace J's. William D. Simpson (final case). South Carolina 244 
 
 15. Charles Whittlesey vs. Lewis McKenzie, Virginia 246 
 
 16. Chester B. Darrall rs. Adolphe Bailey, Louisiana - 246 
 
 17. Sidney M. Barnes rs. George 51. Adams, Kentucky 247 
 
 18. George Tucker vs. George W. Booker, Virginia 250 
 
 19. William F. Switzler vs. David P. Dyer, Missouri 250 
 
 20. Joseph Segar, Virginia - - 253 
 
 21. John S. Reid rs. George W. Julian, Lidiana 253 
 
 22. John L. Zeigler vs. John M. Rice, Kentucky 255 
 
 23. Benjamin Eggleston vs. Peter W. Strader, Ohio 256 
 
 24. Nathaniel Boyden vs. Francis E. Shober, North Carnlina : 257 
 
 25. C. A. Sheafe vs. Lewis Tillman, Temiessee 257 
 
 26. Jamea Shields vs. Robert T. Van Horn, Missouri 259 
 
 27. John B. Rodgers, Tennessee - 260 
 
 Forty-second Congress, 1871-1878; 
 
 1. Tennessee election - - 261 
 
 2. W. T. Clarke, Te.ras 263 
 
 3. Thomas Boles vs. John Edwards, Arkansas 264 
 
 4. Lewis McKenzie vs. Elliott M. Braxton, Virginia 265 
 
 5. Election frauds in Arkansas 266 
 
 6. John Cessna vs. Benjamin F. Myers, Pennsylvania 266 
 
TABLE OF CASES. • 11 
 
 FoKTY-SECOND CoNGKESS — Continued. Page. ' 
 
 7. B. W. Norris vs. W. A. Handley, Alabama 275 
 
 8. David S. Gooding vs. Jeremiah M. Wilson, Indiana ' 276 
 
 9. W. A. Burleigh and S. L. Spink vs. M. K. Armstrong, Dakota Territory. 278 
 
 10. D. C. Giddings vs. W. T. Clarke, Texas 279 
 
 11. Isaac G. McKissick t^s. Alexanders. Wallace, SotUh Carolina ., 281 
 
 12. Christopher C. Bowen vs. Robert C. De Large, South Carolina. '. 282 
 
 13. Silas L. Niblack r.s. Josiah T. Walla, Florida 282 
 
 14. J. Hale Sypher, Louisiana 283 
 
 Forty-third Congress, 1873-1875: 
 
 T /John J. Davis vs. Benjamin Wilson, 1 ,,r . ^r■ ■ . „„. 
 
 Hs- Marshall Hagans vs. Benjamim F. Martin,/ '''^* ^^'■.9*"'" 284 
 
 2. Thomas M. Gunter t's. W. W. Wilshire {two cases), Arkansas 286 
 
 3. Andrew Sloan vs. Morgan Rawls, Georgia 288 
 
 4. John M. Burns vs. John D. Yo\mg,Keraucky 290 
 
 5. George R. Maxwell vs. George Q. Cannon, Utah Territory 291 
 
 6. John M. Bradley vs. Wm. J. HyneSjArkansas 292 
 
 7. George A. Sheridan vs. P. B. S. Knchback (2 cases), Louisiana 293 
 
 8. Marcus L. Bell vs'. O. P. Snyder, Arkansas 297 
 
 9. George Q. Cannon, Utah Territory 298 
 
 10. Lucien S. Gause vs. Asa Hodges, Arkansas 299 
 
 11. Effingham Lawrence vs. J. Hale Sypher, Louisiana 300 
 
 FORTY-POURTH CONGRESS, 1875-1877: 
 
 1. Frederick G. Bromberg vs. Jere Haralson, Alabama 303 
 
 2. Jesse J. Finley vs. Josiah T. Walls, Florida 305 
 
 3. John V. LeMoyne vs. Charles B. Farwell, Illinois 308 
 
 4. E. St. Julien Cox vs. Horace B. Strait, Minnesota 309 
 
 5. William B. Spencer vs. Frank Morey, Louisiana 311 
 
 6. Samuel Lee vs. Joseph R. Rainey, South Carolina 313 
 
 7. S. S. Fenn rs. T. W. Bennett, Idaho Territory 314 
 
 8. Josiah G. Abbott vs. Rufus S. Frost, Massachusetts 314 
 
 9. James H. Piatt vs. John Goode, jr., Virginia 318 
 
 10. C. W. Buttz vs. E. W. M. Mackey, South Carolina 320 
 
 FoRTY-PiETH Congress, 1877-1879: 
 
 1 . Peter D. Wigginton rs. Romualdo Pacheco, California 322 
 
 2. Thomas M. Patterson vs. James B. Belford, Colorado 324 
 
 3. Jesse J. Finley vs. Horatio Bisbee, jr. , Florida 326 
 
 4. Joseph H. Acklen vs. Chester B. Darrall, Louisiana 329 
 
 5. Benjamin Dean vs. Walbridge A. Field, Massaehusilts 332 
 
 6. John S. Richardson vs. Joseph H. Rainey, South Carolina 334 
 
 7. R. Graham Frost vs. Lyne S. Metcalfe, Missouri 337 
 
 Forty-sixth Congress, 1879-1881: 
 
 1. John M. Bradley vs. William F. Slemons, Arkansas 339 
 
 2. Horatio Bisbee vs. Noble A. Hull, Florida 341 
 
 3. James McCabe vs. Godlove S. Orth, Indiana 342 
 
 4. J. C. Holmes and John L. Wilson, Iowa 342 
 
 5. W. B. Merchant and Robert A. Herbertra. Joseph H. Acklen, Louisiana. 344 
 
 6. E. Moody Boynton vs. George B. Loring, Massachusetts 345 
 
 7. Sebastian Duify vs. Joseph Mason, New York - 346 
 
 8. James E. O'Hara vs. William K. Kitchin, North Carolina 348 
 
 9. Jesse J. Yeates -vs. Joseph J. Martin, North Carolina 349 
 
 10. Andrew G. Ourtin vs. Seth H. Yocum, Pennsylvania 350 
 
 11. Ignatius Donnelly vs. William D. Washburn, Minnesota 355 
 
 iORTY-SEVENTH CONGRESS, 1881-1883: 
 
 1. Paul Strobach vs. Hilary A. Herbert, Alabama 362 
 
 2. Algernon A. Mabson vs. William C. Gates, Alabama .. 363 
 
 3. James I. Smith rs. Charles ]M. Shelley, Alabama 364 
 
 4. William M. Lowe vs. Joseph Wheeler, Alabama 365 
 
 5. George Withersjjoon rs. Robert H. M. Davidson, Fim Ida 368 
 
 6. Horatio Bisbee, jr., vs. Jesse J. Finley, Florida 368 
 
 7. John C. Cook rs. Marsena E. Cutts, lonri 371 
 
 8. Alexander Smith rs. E. W. Robertson, Louisiana 372 
 
 9. Samuel J. Anderson rs. Thomas B. Reed, Maine 372 
 
 10. George M. Buchanan vs. Van H. Manning, Mississippi 373 
 
 11. John R. Lynch vs. James R. Chalmers, Mississippi 375 
 
 12. Gustavus Sessinghaus rs. R. Graham Frost, Missouri 378 
 
 13. Robert Smalls vs. George D. Tillman, South CaroUna 381 
 
12 TABLE OF CASES. 
 
 FoBTY-sEVENTH CONGRESS — Continued. ^^^e. 
 
 14. SamueJ Lee vs: John S. Eichardaon, South Carolina r. 384 
 
 -15. Edmund W. M. Mackey vs. M. P. O'Connor, South Carolina 387 
 
 16. Carlos J. Stolbrand vs. E. Wyatt Aiken, South Carolina 391 
 
 17. George Q. Cannon vs. Allen J. Campbell, Utah Territory 391 
 
 18. John. T. Stovell vs. George C. Cabell, Virginia 393 
 
 19. S. P. Bayley vs. John S. Barbour, Virginia 394 
 
 20. John W. Jones vs. Charles M. Shelley, Alabama 394 
 
 FOETY-EIQHTH CoNQRESS, 1883-1885: 
 
 1. J. R. Chalmers m. V. H. Manning, Mississippi - - - . 396 
 
 2. George T. Garrison vs. Robert Mayo, Virginia 398 
 
 3. Francisco A. Manzanares vs. Tranquilino Luna, New Mexico 399 
 
 4. Charles C. Pool vs. Thomas G. Skiimer, Norlli Carolina 400 
 
 5. S. N. Wood vs. S. R. Peters, Kansas 401 
 
 6. Charles T. O' Ferrall vs. John Paul, Virginia 402 
 
 7. William M. English vs. Stanton J. Peelle, Indiana 404 
 
 8. Jonathan H. Wallace vs. William McKinley, jr. , Ohio 406 
 
 9. James E. Campbell vs. Henry L. Morey, Ohio - 408 
 
 io. John E. Massey vs. John S. Wise, Virginia 410 
 
 11. George H. Craig vs. Charles M. Shelley, A labama 411 
 
 12. A. C. Botkin vs. Martin Maginnis, Montana Territory 411 
 
 13. James H. McLean vs. James 0. Broadhead, Missouri 412 
 
 14. Benjamin T. Frederick vs. James Wilson, Iowa 413 
 
 Forty-ninth Congress, 1885-1887: 
 
 1. Frank H. Hurd vs. Jacob Romeis, Ohio 415 
 
 2. Frank T. Campbell vs. J. B. Weaver, Iowa 417 
 
 3. Charles H. Page vs. William A. Pirce, Rhode Island 419 
 
 4. California cases 421 
 
 5. Meredith H. Kidd vs. George W. Steele, Indiana 422 
 
 Fiftieth Congress, 1887-1889: 
 
 1. George H. Thobe vs. John G. Carlisle, Kentucky 423 
 
 2. John V. McDuffie vs. Alexander C. Davidson, Alabama 424 
 
 3. Robert Lowry vs. James B. White, Indiana 426 
 
 4. Nicholas E. Worthington vs. Philip S. Post, Illinois 427 
 
 5. Nathan Frank vs. John M. Glover, Missouri- 428 
 
 6. Joseph D. Lynch vs. William Vandever, California 429 
 
 7. Robert Smalls vs. William Elliott, South Carolina 429 
 
 8. Frank J. Sullivan vs. Charles N. Felton, California- 432 
 
 Fipty-pihst Congress, 1889-1891: 
 
 1. Charles B. Smith vs. James M. Jackson, West Virginia 436 
 
 2. George W. Atkinson vs. John O. Pendleton, Wext Virginia 440 
 
 3. L. P. Featherston vs. W. H. Gate, Arkansas 441 
 
 4. Sydney E. Mudd vs. Barnes Compton, Maryland 447 
 
 5. Frank H. Threet vs. Richard H. Clarke, Alabama 450 
 
 6. Francis B. Posey vs. Wm. F. Parrett, Indiana 451 
 
 7. Henry Bowen vs. John A. Buchanan, Virginia 451 
 
 8. Edmund Waddill, jr., vs. George D. Wise, Virginia 452 
 
 9. John V. McDuffie vs. Louis W. Turpin, Alabama _ . 454 
 
 10. James R. Chalmers vs. James B. Morgan, Mississippi 457 
 
 11. John M. Langston vs. E. C. Venable, Virginia 458 
 
 12. Thomas E. Miller vs. William Elliott, South Carolina 461 
 
 13. Fred S. Goodrich vs. Robert Bullock, Florida 464 
 
 14. James H. McGinnis vs. John D. Alderson, West Virginia 466 
 
 15. John M. Clayton vs. Clifton R. Breckinridge, Arkansas 468 
 
 16. Henry Kernaghan vs. Charles E. Hooker, Mississippi 470 
 
 17. James Hill vs. T. C. Catchings, Mississippi 471 
 
 Fipty-second Congress,. 1891-1893: 
 
 1 . Alexander H. Craig vs. Andrew Stewart, Pen nsylrania 472 
 
 2. Henry T. Noyes vs. Hosea H. Rockwell, New York 474 
 
 3. John B. Reynolds vs. George W. Shonk, Pennsylnmia 477 
 
 4. John V. McDijffie vs. Louis W. Turpin, Alabama 477 
 
 5. Thomas R. Greevy vs. Edward Scull, Pennsylvania 478 
 
 6. Thomas E. Miller vs. William Elliott, South Carolina 480 
 
 Fifty-third Congress, 1893-1895: 
 
 1. W. W. Whatley vs. J. E. Cobb, Alabama 483 
 
 2. A. H. A. Williams vs. Thomas Settle, North Carolina 484 
 
 3. Warren B. English ^s. Samuel G. Hilborn, California 486 
 
TABLE OF CASES. 13 
 
 Fifty-third Congress — Continued. I'ftge. 
 
 4. P. H. Thrasher vs. B. A. Enloe, Tennessee 487 
 
 5. Thomas E. Watson vs. James C. C. Black, GeimjUi 489 
 
 6. H. L. Moore vs. Edward H. Funston, Kansas. .' 491 
 
 7. Charles H. Page Rhode Island 493 
 
 8. Louis Steward vs. Robert A. Childs, Illinois 493 
 
 9. Charles E. Belknap rs. George F. Richardson, Michigan 494 
 
 10. J. T. Goode vs. J. F. Epes, Virginia 496 
 
 11. John J. O'Neill vs. Charles F. Joy, Missouri 497 
 
 Fifty-fourth Congress, 1895-1897: 
 
 Committee No. 1 — 
 
 1. Hugh R. Belknap vs. Lawrence E. McGann, Illinois 501 
 
 2. James J. McDonald vs. William A. Jones, Virginia 502 
 
 3. William F. Aldrich vs. Gaston A. Robbins, Alabama 502 
 
 4. Albert T. Goodwyn vs. Jamee E. Cobb, Alabama 504 
 
 5. W. C. Robinson vs. George P. Harrison, Alabama 505 
 
 6. John I. Rinaker vs. Finis E. Downing, Illinois 506 
 
 7. Truman H. Aldrich cs. Oscar W. Underwood, Alabama 509 
 
 8. William H. Felton vs. John W. Maddox, Georgia 510 
 
 9. George Denny, jr. , vs. W. C. Owens, Kentucky 511 
 
 10. N. T. Hopkins vs. Joseph M. Kendall, Kentucky 512 
 
 11. Thomas E. Watson vs. James C. C. Black, Georgia 513 
 
 Committee No. 2 — 
 
 12. Robert A. Chesebrough ot. George B. McClellan, Neiv 'i'nrk 513 
 
 13. Timothy J. Campbell vs. Henry C. Miner, Xe.w York 514 
 
 14. Robert T. Van Horn vs. John C. Tarsney, Missouri 515 
 
 15. H. Dudley Coleman vs. Charles F. Buck, Louisiana 518 
 
 16. William S. Booze vs. Harry Welles Rusk, Maryland 519 
 
 17. Alexis Benoit vs. Charles J. Boatner (first case), Lotii.fiana 519 
 
 18. Cyrus Thompson vs. John G. Shaw, North Carolina 520 
 
 19. Henry P. Cheatham vs. Frederick A. Woodard, North Carolina 521 
 
 20. John Murray Mitchell vs. James J. Walsh, New York 521 
 
 21. Charles H. Martin vs. John A. Lockhart, North Carolina. ., 524 
 
 22. Alexis Benoit, to. Charles J. Boatner (second case) , Louisiana 526 
 
 23. Taylor Seattle vs. Andrew Price, Louisiana 527 
 
 Committee No. 3 — 
 
 24. J. H. Davis vs. D. B. Culberson, Texas 529 
 
 25. A. J. Rosenthal vs. Miles Crowley, Te.vas 529 
 
 26. Robert Moorman vs. A. C. Latimer, South Carolina 530 
 
 27. Thomas B. Johnston r,s. J. William Stokes, /SVra(A Carolina 530 
 
 28. George W. Cornett vs. Claude A. Swanson, Virginia 534 
 
 29. J. Hampton Hose vs. Peter J. Otey, Virginia 537 
 
 30. R. T. Thorp vs. W. R. McKenney, Vircji'nia 537 
 
 31. Giles Otis Pearce rs. John C. Bell, Colorado 540 
 
 32. A. M. Newman vs. J. G. Spencer, Mississippi 540 
 
 33. W. V. Ratlift vs. J. S. Williams, Mismsippi 540 
 
 34. John A. Brown vs. John M. Allen, Mississippi 540 
 
 35. Joshua E. Wilson vs. John McLaurin, South Carolina 541 
 
 36. George W. Murray vs. William Elliott, South Carolina 543 
 
 37. J. C. Kearby vs. Jo. Abbott, Texas 546 
 
 38. Jacob Yost rs. H. St. George Tucker, Virginia 547 
 
 Fifty-fifth Congress,. 1897-1899: 
 
 Committee No. 1 — 
 
 1. Thomas H. Clark vs. Jesse F. Stallings, Alabama 554 
 
 2. G. L. Comer vs. Henry D. Clayton, Alabama 554 
 
 3. William F. Aldrich vs. Thomas S. Plowman, Alabama 554 
 
 4. Grattan B. Crowe vs. Oscar W. Underwood, Alabama 557 
 
 5. Jonathan S. Willis vs. L. Irving Handy, Delaware 557 
 
 6. W. Godfrey Hunter vs. John S. Rhea, Kentucky 557 
 
 Committee No. 2 — 
 
 7. Samuel E. Hudson vs. William McAleer, Pennsylvania 558 
 
 8. W. S. Vanderburg vs. Thomas H. Tongue, Oregon 559 
 
 9. Ben L. Fairchild vs. William L. Ward, New York 559 
 
 10. William E. Ryan vs. Henry 0. Brewster, New York 563 
 
 11 . Armand Romain vs. Adolph Meyer, Louisiana 563 
 
 12. Joseph Gazin vs. Adolph Meyer, Louisiana 564 
 
14 TABLE OF CASES. 
 
 Fifty-fifth Congress — Continued. ^*^^- 
 Committee No. 3 — 
 
 13. E. T. Thorp vs. Sydney P. Epes, Virginia 565 
 
 14. Eichard A. Wise vs. William A. Young, Virginia 569 
 
 1 5. Joaiah Patterson vs. E. W. Carmack, Tennessee 574 
 
 16. John E. Brown vs. Claude A. Swanson, Virginia 578 
 
 Fifty-sixth Congress, 1899-1901: 
 
 Special committee — 
 
 (1) Brigham H. Eoberts, Utah 582 
 
 Committee No. 1 — 
 
 f 2^ Walter Evans vs. Oscar Turner, Kentucky - 596 
 
 (3 J William F. Aldrich vs. Gaston A. Bobbins, Alabama 597 
 
 (41 Eobert Wilcox, Hawaii 601 
 
 (5) George M. Davidson vs. George G. Gilbert, Kentucky 603 
 
 (6) James A. Walker vs. William F. Ehea, Virginia 606 
 
 Committee No. 2 — 
 
 (7) John D. White vs. Vincent S. Boreing, Kentucky 606 
 
 Committee No. 3 — 
 
 (8) Eiohmond Pearson vs. William T. Crawford, North Carolina 608 
 
 (9) Eichard A. Wise vs. William A. Young, Virginia 611 
 
 CASES BY STATES AND TEEEITORIES. 
 Alabama. 
 
 1. Norris vs. Handley, Forty-second Congress 275 
 
 2. Bromberg vs. Haralson, Forty-fourth Congress 303 
 
 3. Jones vs. Shelley, Forty-seventh Congress 394 
 
 4. Lowe vs. Wheeler, Forty-seventh Congress 365 
 
 5. Mabson rs. Gates, Forty-seventh Congress 363 
 
 6. Smith vs. Shelley, Forty-seventh Congress 364 
 
 7. Strobach vs. Herbert, Forty-seventh Congress 362 
 
 8. Craig vs. Shelley, Forty-eighth Congress 411 
 
 9. McDuffie vs. Davidson, Fiftieth Congress .- 424 
 
 10. McDuffie vs. Turpin, Fifty-first Congress 454 
 
 11. Threet vs. Clarke, Fifty-first Congress , 450 
 
 12. McDuffie vs. Turpin, Fifty-second Congress 477 
 
 13. Whatley vs. Cobb, Fifty-third Congress 483 
 
 14. Aldrich vs. Eobbins, Fifty-fourth Congress 502 
 
 15. Aldrich vs. Underwood, Fifty-fourth Congress 509 
 
 16. Goodwyn vs. Cobb, Fifty-fourth Congress 504 
 
 17. Robinson vs. Harrison, Fifty-fourth Congress 505 
 
 18. Aldrich to. Plowman, Fifty-fifth Congress 554 
 
 19. Clark w. Stallings, Fifty-fifth Congress 554 
 
 20. Comer vs. Clayton, Fifty-fifth Congress 554 
 
 21. Crowe vs. Underwood, Fifty-fifth Congress 557 
 
 22. Aldrich vs. Eobbins, Fifty-sixth Congress 597 
 
 Arkansas Territory. 
 
 1. Lyon vs. Bates, Seventeenth Congress 78 
 
 Arkansas. 
 
 1. Newton and Yell, Twenty-ninth Congress 125 
 
 2. Jacks and Johnson, Thirty-eighth Congress 199 
 
 3. Election frauds in Arkansas, Forty-second Congress 266 
 
 4. Boles vs. Edwards, Forty-second Congress 264 
 
 5. Bell vs. Snyder, Fort.v-third Congress _ 297 
 
 6. Bradley to. Hynes, Forty-third Congress 292 
 
 7. Gause to. Hodges, Forty-third Congress . . .'. 299 
 
 8. Gunter to. Wilshire (two cases). Forty-third Congress 286 
 
 9. Bradley vs. Slemons, Forty-sixth Congress 339 
 
 10. Clayton M.-Breckmridge, Fifty-first Congress 468 
 
 11. Feaitherston vs. Cate, Fifty-first Congress 44I 
 
TABliK Vf CASES. 15 
 
 California. 
 
 Page. 
 
 1. Lowe, Thirty-seventh Congress 179 
 
 2. Wi^ginton vs\ Pacheco, Forty-flfth Congress 322 
 
 3. Cahforhla cases, Forty-ninth Congress 421 
 
 4. Lynch vs. Vandever, Fiftieth Congress 429 
 
 5. Sullivan vs. Felton, Fiftieth Congress 432 
 
 6. English vs. Hilbprn^ Fifty-third Congress 486 
 
 Colorado Territory. 
 
 1. Colorado case, Hunt and Chilcott, Fortieth Congress 212 
 
 Colorado. 
 
 1. Patterson to. Belford, Forty-flfth Congress 324 
 
 2. Pearce vs. Bell, Fifty-fourth Congress 540 
 
 Dakota Territory. 
 
 1. Todd vs. Jayne, Thirty-eighth Congress 193 
 
 2. Burleigh and Spink vs. Armstrong, Forty-second Congress 278 
 
 Delaware. 
 
 1. Latimer to. Patton, Third Congress 41 
 
 2. Willis rs. Handy, Fifty-fifth Congress 557 
 
 Dewret. 
 
 1. Babbitt, Thirty-first Congress 130 
 
 Florida Territory. 
 
 1. Levy, Twenty-seventh Congress 114 
 
 Florida. 
 
 1. Brockenbrough to. Cabell, Twenty-ninth Congress 123 
 
 2. Niblack vs. Walls, Forty-second Congress 282 
 
 3. Finley vs. Walls, Forty-fourth Congress 305' 
 
 4. Finley vs. Bisbee, Forty-fifth Congress 326 
 
 5. Bisbee vs. Hull, Forty-sixth Congress ; 341 
 
 6. Bisbee vs. Finley, Forty-seventh Congress 368 
 
 7. Witherspoon to. Davidson, Forty-seventh Congress 368 
 
 8. Goodrich vs. Bullock, Fifty-first Congress 464 
 
 Georgia. 
 
 1. Jackson vs. Wayne, Second Congress 39 
 
 2. Spaulding vs. Mead, Ninth Congress 54 
 
 3. Forsyth, Eighteenth Confess 82 
 
 4. Christy and Wimpy, Fortieth Congress 225 
 
 5. Georgia Cases, Forty-first Congress 236 
 
 6. Sloan vs. Eawls, Forty-third Congress 288 
 
 7. Watson vs. Black, Fifty-third Congress 489 
 
 8. Felton vs. Maddox, Fifty-fourth Congress .' 510 
 
 9. Watson to. Black, Fifty-fourth Congress 513 
 
 Hawaii. 
 
 1. Wilcox, Fifty-sixth Congress 601 
 
 Idaho Ten-itorii. 
 
 1. Fenn r.i. Bennett, Forty-fourth Congress 314 
 
16 TABLE OF CASES. 
 
 Page. 
 
 1. Baker,, Twenty-ninth Congress j^^ 
 
 2. Archer vs. Allen, Thirty-fourth Congress j^^ 
 
 3. Fouke TO. Trumbull, Thirty-fourth Congress J^| 
 
 4. Turney rs. Marshall, Thirty-fourth Congress ]g^ 
 
 5. Le Moyne vs. Farwell, Forty-fourth CongresH 308 
 
 6. Worthington vs. Post, Fiftieth Congress ^27 
 
 7. Steward vs. Childs, Fifty -third Congress - ■*"*' 
 
 8. Belknap vs. McGann, Fifty-fourth Congress 501 
 
 9. Rinaker vs. Downing, Fifty-fourth Congi-esa 506 
 
 Indiana Terr'doi-ii. 
 
 1. Randolph vs. Jennings, Eleventh Congress 61 
 
 Indiana. 
 
 1. Washburn vs. Voorhees, Thirty-ninth Cungref-^^ 201 
 
 2. Reid vs. Julian, Forty-first Congress 253 
 
 3. Goodmgs i-s. Wilson, Forty-second Congress 276 
 
 4. ilcCabe rs. Orth, Forty-sixth Congress - 342 
 
 5. English vs. Peelle, Forty-eighth Congress 404 
 
 6. Kidd vs. Steele, Forty-ninth Congress 422 
 
 7. Lowry rs. White, Fiftieth Congress 426 
 
 8. Posey vs. Parrett, Fifty-first Congress 451 
 
 lo'ra. 
 
 1. Miller vs. Thompson, Thirty-first Congress ■ 130 
 
 2. Clark vs. Hall, Thirty-fourth Congress 148 
 
 3. Byington'vs. Vandever, Thirty-seventh Congress 177 
 
 4. Holmes and Wilson, Forty-sixth Congress 342 
 
 5. Cook vs. Outts, Forty-seventh Congress 371 
 
 6. Frederick vs. Wilson, Forty-eighth Congress 413 
 
 7. Campbell vs. Weaver, Forty-ninth Congress 417 
 
 Kansas 'Teri'itory. 
 1. Reeder vs. Whitfield (2 cases) , Thirty-fourth Congress 145, 149 
 
 Kansas. 
 
 1. Wood vs. Peters, Forty-eighth Congress ,. 401 
 
 2. Moore vs. Funston, Fifty-third Congress 491 
 
 Kentucky. 
 
 1. Letcher vs. Moore, Twenty-third Congress 98 
 
 2. Chi'isman vs. Anderson, Thirty-sixth Congress 167 
 
 3. McHenry vS. Yeaman, Thirty-eiglith Congress 193 
 
 4. Kentucky members (2 cases). Fortieth Congress 218 
 
 5. Blakey vs. GoUaday, Fortieth Congress 221 
 
 6. Butler, Fortieth Congress 224 
 
 7. McKee vs. Young (2 cases) , Fortieth Congress 222 
 
 8. Smith vs. Brown, Fortieth Congress 220 
 
 9. Symes vs. Trimble, Fortieth Congress 218 
 
 10. Barnes vs. Adams, Forty-first Congress 247 
 
 11. Zeigler vs. Rice, Forty-first Congress 255 
 
 1 2. Burns vs. Young, Forty-third Congress _ 290 
 
 13. Thobe vs. Carlisle, Fiftieth Congress. _ 423 
 
 14. Denny vs. Owens, Fifty-fourth Congress 511 
 
 15. Hopkins vs. Kendall, Fifty-fourth Congress 512 
 
 16. Hunter vs. Rhea, Fifty-fifth Congress. 557 
 
 17. Evans vs. Turner, Fifty-sixth Conrgess 596 
 
 18. White vs. Boreing, Fifty-sixth Congress 606 
 
 19. Davidson vs. Gilbert, Fifty-sixth Congress 603 
 
TABLE OF CASES. 17 
 
 Louisiana. 
 
 Page. 
 
 1. Flanders and Hahn, Thirty-seventh Congress 181 
 
 2. Field, Thirty-eighth Congress 197 
 
 3. Bonanzo, Field, and Mann, Thirty-eighth Congress 198 
 
 4. Hunt vs. Menard, Fortieth Congress 226 
 
 5. Jones vs. Mann, Fortieth Congress 226 
 
 6. Darrall vs. Bailey, Forty-first Congress 246 
 
 7. Hunt rs. Sheldon (2 cases) , Forty-first Congress 232, 241 
 
 8. Morey vs. McCranie, Forty-first Congress 243 
 
 9. Newsham vs. Ryan, Forty-first Congress 244 
 
 10. Sypher vs. St. Martin, Forty-first Congress 241 
 
 11. Sypher, Forty-second Congress 283 
 
 12. Lawrence rs. Sypher, Forty-third Congress 300 
 
 13. Sheridan rs. Pinchback (2 cases) , Forty-third Congress . 293 
 
 14. Spencer vs. Morey, Forty-fourth Congress 311 
 
 15. Acklen vs. Darrall, Forty-fifth Congress 329 
 
 16. Merchant and Herbert vs. Acklen, Forty-sixth Congress 344 
 
 17. Smith vs. Robertson, Forty-seventh Congress 372 
 
 18. Beattie vs. Price, Fifty-fourth Congress 527 
 
 19. Benoit vs. Boatner (2 cases). Fifty-fourth Congress 519, 526 
 
 20. Coleman vs. Buck, Fifty-fourth Congress 518 
 
 21. Gazin r.s. Meyer, Fifty-fifth Congress 564 
 
 22. Romain vs. Meyer, Fifty-fifth Congress 563 
 
 Mw 
 
 ine. 
 
 1. Washburn vs. Ripley, Twenty-first Congress 91 
 
 2. Lowell, Twenty-seventh Congress 114 
 
 3. Milliken vs. Fuller, Thirty-fourth Congress '. 143 
 
 4. Anderson vs. Reed, Forty-seventh Congress 372 
 
 Maryland. 
 
 1. Mercer, Second Congress 39 
 
 2. Edwards, Third Congress 43 
 
 3. Barney vs. McCreery, Tenth Congress 56 
 
 4. Key, Tenth Congress 58 
 
 5. Reed vs. Oosden, Seventeenth Congress 77 
 
 6. Brooks vs. Davis, Thirty-fifth Congress 154 
 
 7. Whyte vs. Harris, Thirty-fifth Congress 156 
 
 8. Harrison vs. Davis, Thirty-sixth Congress 168 
 
 9. Preston vs. Harris, Thirty-sixth Congress 169 
 
 10. Mudd vs. Compton, Fifty-first Congress 447 
 
 11. Booze vs. Rusk, Fifty-fourth Congress 519 
 
 Massachusetts. 
 
 1. Vamum, Fourth Congress 47 
 
 2. Turner vs. Baylies, Eleventh Congress 60' 
 
 3. Bailey, Eighteenth Congress 80 
 
 4. Sleeper vs. Rice, Thirty-eighth Congress 187 
 
 5. Abbott vs. Frost, Forty-fourth Congress 314 
 
 6. Dean vs. Field, Forty-fifth Congress 332 
 
 7. Boynton vs. Loring, Forty-sixth Congress 345 
 
 Michi/jdii Territory. 
 
 1. Biddle vs. Richard, Eighteenth Congress 80 
 
 2. Biddle and Richard vs. Wing, Nineteenth Congress 83 
 
 Michigan. 
 
 1. Howard vs. Cooper, Thirty-sixth Congress 161 
 
 2. Baldwin vs. Trowbridge, Thirty-ninth Congress 200 
 
 3. Belknap vs. Richardson, Fifty-third Congress 494 
 
 H. Doc. 510 2 
 
18 TABLE OF CASES. 
 
 Minnesota Territory. 
 
 Page. 
 
 1. Fuller vs. JCingsbury , Thirty-fifth Congress ^^^ 
 
 Minnesota. 
 
 1. Phelps vs. Cavanaugh, Thirty-fifth Congress _ 154 
 
 2. Cox vs. Strait, Forty-fourth Congress 309 
 
 3. Donnelly vs. Washburn, Forty-sixth Congress 355 
 
 Mississippi Territory. 
 
 1. Hunter, Seventh Congress 49 
 
 Mississippi. 
 
 1. Gholson and Claiborne, Twenty-fifth Congress 106 
 
 2. Buchanan m. Manning, Forty-seventh Congress 373 
 
 3. Lynch vs. Chalmers, Forty-seventh Congress 375 
 
 4. Chalmers vs. Manning, Forty-eighth Congress 396 
 
 5. Chalmers vs. Morgan, Fifty-first Congress 457 
 
 6. Hill vs. Catchings,' Fifty-first Congress 471 
 
 7. Kernaghan vs. Hooker, Fifty-first Congress 470 
 
 8. Brown vs. Allen, Fifty-fourth Congress 540 
 
 9. Newman vs. Spencer, Fifty-fourth Congress 540 
 
 10. Eatliff vs. Williams, Fifty-fourth Congress 540 
 
 Missouri Territory. 
 
 1. Easton vs. Scott, Fourteenth Congress. 68 
 
 Missouri. 
 
 1. Blair vs. Barrett, Thirty-sixth Congress 165 
 
 2. Birch vs. King, Thirty-eighth Congress 189 
 
 3. Bruce rs. Loan, Thirty-eighth Congress 188 
 
 4. Blair, Thirty-eighth Congress 192 
 
 0. Knox vs. Blair, Thirty-eighth Congress 190 
 
 6. Lindsay vs. Scott, Thirty-eighth Congress 195 
 
 7. Price vs. McClurg, Thirtj^-eighth Congress 189 
 
 8. Boyd vs. Kelso, Thirty-ninth Congress 206 
 
 9. Burch vs. Van Plorn, Fortieth Congress 215 
 
 10. Hogan us. Pile, Fortieth Congress 216 
 
 11. Switzler vs. Anderson (2 cases). Fortieth Congress 219 
 
 12. Shields vs. Van Horn, Forty-first Congress 259 
 
 13. Switzler vs. Dyer, Forty-first Congress 250 
 
 14. Frost vs. Metcalfe, Forty-fifth Congress 337 
 
 15. Sessinghaus vs. Frost, Forty-seventh Congress 378 
 
 16. McLean vs. Broadhead, Forty-eighth Congress. - 412 
 
 17. Frank vs. Glover, Fiftieth Congress 428 
 
 18. O'Neill vs. Joy, Fifty-third Congress 497 
 
 19. Van Horn to. Tarsney, Fifty-fourth Congress 515 
 
 Montana 2'erritory. 
 
 1. Botkin vs. Maginnis, Forty-eighth Congress 41j 
 
 Xehi-a.fhi Territorij. 
 
 1. Bennett vs. Chapman, Thirty-fourth Congress I47 - 
 
 2. Chapman vs. Ferguson, Thirty-fifth Congress 159 
 
 3. Daily to. Estabrook, Thirty-sixth Congress ]63 
 
 4. Morton vs. Daily, Thirty-seventh Congress 178 
 
TABLE OF CASES. 19 
 
 N&w Hampshire. 
 
 Page. 
 
 1. Perkins vs. Morrison, Thirty-first Congress 135 
 
 New Jersey. 
 
 1. New Jersey members, First Congress 38 
 
 2. The New Jersey case. Twenty-sixth Congress 109 
 
 3. Farlee rs. Rmik, Twenty-ninth Congress r 124 
 
 New Mexico (Territory). 
 
 1 . Messervy, Thirty-flrst Congress „ 135 
 
 2. Smith, Thirty-first Congress 129 
 
 3. Lane vs. Gallegos, Thirty-third Congress 140 
 
 4. Otero vs. Gallegos, Thirty-fourth Congress 144 
 
 5. Gallegos vs. Perea, Thirty-eighth Congress 188 
 
 6. Chaves vs. Clever, Fortieth Congress 225 
 
 7. Manzanares vs. Luna, Forty-eighth Congress 399 
 
 New York. 
 
 1 . Van Rensselaer vs. Van Allen, Third Congress 42 
 
 2. Van Ness, Seventh Congress 49 
 
 3. Blydenburg and Jay vs. Sage and Lefferts, Thirteenth Congress 66 
 
 4. Williams vs. Bowers, Thirteenth Congress 65 
 
 5. Root vs. Adams, Fourteenth Congress 68 
 
 6. Willoughby vs. Smith, Fourteenth Congress 67 
 
 7. Guyon vs. Sage, Sixteenth Congress 76 
 
 8. Golden vs. Sharpe, Seventeenth Congress 78 
 
 9. Adams vs. Wilson, Eighteenth Congress 79 
 
 10. Hugunin rs. Ten Eyck, Nineteenth Congress 83 
 
 11. Wright vs. Fisher, Twenty-first Congress 87 
 
 12. Monroe vs. Jackson, Thirtieth Congress 126 
 
 13. Williamson vs. Sickles, Thirty-sixth Congress 163 
 
 14. Dodge vs. Brooks, Thirty-ninth Congress 203 
 
 15. Van Wyck vs. Greene, Forty-first Congress. ^ . _ 239 
 
 16. Duffy rs. Mason, Forty-sixth Congress 346 
 
 17. Noyes vs. Rockwell, Fifty-second Congress 474 
 
 18. Cheesebrough vs. McClellan, Fifty-fourth Congress 513 
 
 19. Campbell vs. Miner, Fifty-fourth Congress 514 
 
 20. Mitchell is. Walsh, Fifty-fourth Congress 521 
 
 21. Fairchild I's. Ward, Fifty-fifth Congress 559 
 
 22. Ryaura. Brewster, Fifty-fifth Congress... 563 
 
 North Carolina. 
 
 1. McFarland vs. Purviance, Eighth Congress 51 
 
 2. McFarland vs. Culpepper, Tenth Congress 58 
 
 3. Mumford, Fifteenth Congress 73 
 
 4. Newland vs. Graham, Twenty-fourth Congress 105 
 
 5. Foster, Thirty-seventh Congress 180 
 
 6. Pigott, Thirty-seventh Congress 184 
 
 7. Boyden vs. Shober, Forty-first Congress 257 
 
 8. O'Hara vs. Kitchin, Forty-sixth Congress 348 
 
 9. Yeates vs. Martin, Forty-sixth Congress 349 
 
 10. Pool vs. Skinner, Porty-eighth Congress 400 
 
 11. Williams vs. Settle, Fifty-third Congress 484 
 
 12. Cheatham vs. Woodard, Fifty-fourth Congress 521 
 
 13. Martin vs. Lockhart, Fifty-fourth Congress 524 
 
 14. Thompson vs. Shaw, Fifty-fourth Congress 520 
 
 15. Pearson vs. Crawford, Fifty-sixth Congress 608 
 
 Northwest Territory. 
 
 1. Fearing, Seventh Congress ., 50 
 
20 TABLE OF CASES. 
 
 Ohio. 
 
 Page. 
 
 1 . Hammond vs. Herrick, Fifteenth Congress ' ^ 
 
 2. Allen, Twenty-third Congress - - - °^ 
 
 3. Vallandigham vs. Campbell, Thirty-fifth Congress l^J 
 
 4. Follett vs. Delano, Thirty-ninth Congress - - - - - 205 
 
 5. Delano vs. Morgan, Fortieth Congress — 213 
 
 6. Eggleston rs. Strader, Forty-first Congress 256 
 
 7. Campbell vs. Morey, Forty-eighth Congress - - - 408 
 
 8. Wallace vs. MoKinley, Forty-eighth Congress 406 
 
 9. Hurd vs. Romeis, Forty-ninth Congress 415 
 
 Oregmi. 
 
 1. Shiel vs. Thayer, Thirty-seventh Congress 171 
 
 2. Vanderburg vs. Tongue, Fifty-fifth Congress 559 
 
 Pennsylvania. 
 
 1. Bard, Fourth Congress ' 47 
 
 2. Richards, Fourth Congress 45 
 
 3. Swan wick. Fourth Congress 46 
 
 4. Hoge, Eighth Congress 52 
 
 5. Leib, Ninth Congress 55 
 
 6. Sergeant, Nineteenth Congress 85 
 
 7. Ingersoll vs. Naylor, Twenty-sixth Congress 112 
 
 8. Littell vs. Robbins, Thirty-first Congress 133 
 
 9. Wright vs. Fuller, Thirty-second Congress _ . . 137 
 
 10. Butler vs. Lehman, Thirty-seventh Congress 172 
 
 11. Kline vs. Verree, Thirty-seventh Congress _ - ., 175 
 
 12. Carrigan vs. Thayer, Thirty-eighth Congress 196 
 
 13. Kline rs. Myers, Thirty-eighth Congress 196 
 
 14. Fuller vs. Dawson, Thirty-ninth Congress 207 
 
 15. Koontz vs. Ooffroth (2 cases). Thirty-ninth Congress - 207 
 
 16. Foster vs. Covode (2 cases). Forty-first Congress 231, 237 
 
 17. Myers vs. Moffett, Forty-first Congress 235 
 
 18. Taylor vs. Reading, Forty-first Congress 240 
 
 19. Cessna vs. Myers, Forty-second Congress 266 
 
 20. Curtin vs. Yocum, Forty -sixth Congress 350 
 
 21. Craig vs. Stewart, Fifty-second Congress 472 
 
 22. Greevy vs. Scull, Fifty-second Congress 478 
 
 23. Reynolds vs. Shonk, Fifty-second Congress 477 
 
 24. Hudson vs. McAleer, Fifty-fifth Congress 558 
 
 Rhode Island. 
 
 1. Page vs. Pirce, Forty-ninth Congress _ 419 
 
 2. Page, Fifty-third Congress ■ _ 493 
 
 South Carolina. 
 
 1 . Ramsay vs. Smith, First Congress 37 
 
 2. Earle, Fifteenth Congress 73 
 
 3. Hoge vs. Reed (2 cases), Forty-first Congress 233 
 
 4. Wallace vs. Simpson (2 cases), Forty-first Congress 235, 244 
 
 5. Bowen vs. DeLarge, Forty-second Congress _ . . ' 282 
 
 6. McKissick is. Wallace, Forty-second Congress _ 281 
 
 7. Buttz rs. Mackey, Forty-fourth Congress _ , 320 
 
 8. Lee vs. Rainey, Forty-fourth Congress ;, 3x3 
 
 9. Richardson vs. Rainey, Forty-fifth Congress _ 334 
 
 10. Lee vs. Richardson, Forty-seventh Congress _ . 354 
 
 11. Mackey vs. O'Connor, Forty-seventB Congress 357 
 
 12. Smalls vs. Tillman, Forty-seventh Congress _ 38^ 
 
 13. Stolbrand vs. Aiken, Forty-seventh Congress 39I 
 
 14. Smalls vs. Elliott, Fiftieth Congress . . . '. i 429 
 
 15. Miller vs. Elliott, Fifty-first Congress 45^ 
 
TABLE OF CASES. 21 
 
 Page. 
 
 16. Miller vs. Elliott, Fifty-second Congress 480 
 
 17. Johnston vs. Stokes, Fifty-fourth Congress 530 
 
 18. Moorman rs. Latimer, Fifty-fourth Congress 530 
 
 19. Murray rs. Elliott, Fifty-fourth Congress 543 
 
 20. Wilson rs. McLaurin, Fifty-fourth Congress 541 
 
 Southwest Territory. 
 
 1. White, Third Congress 43 
 
 Tennessee. 
 
 1. Kelly r.i. Harris, Thirteenth Congress 65 
 
 2. Arnold rs. Lea, Twenty-first Congress 89 
 
 3. Crockett vs. Fitzgerald, Twenty-second Congress. 94 
 
 4. Clements, Thirty -seventh Congress -...'-. 174 
 
 5. Hawkins, Thirty-seventh Congress 184 
 
 6. Rodgers, Thirty-seventh Congress 184 
 
 7. Thomas r.i. Arnell, Thirty-ninth Congress 211 
 
 8. Hamilton, Fortieth Congress 228 
 
 9. Rodgers, Forty-first Congress 260 
 
 10. Sheafe vs. Tillman, Forty-first Congress ;---.-- 257 
 
 • 11. Tennessee election. Forty-second Congress !...'.. 261 
 
 12. Thrasher vs. Enloe, Fifty-third Congress 487 
 
 13. Patterson vs. Carmack, Fifty-fifth Congress 574 
 
 Texas. 
 
 1. Clarke, Forty-second Congress 263 
 
 2. Giddings vs. Clarke, Forty-second Congress 279 
 
 3. Davis vs. Culberson, Fifty-fourth Congress 529 
 
 4. Kearby vs. Abbott, Fifty-fourth Congress 546 
 
 5. Rosenthal vs. Crowley, Fifty-fourth Congress 529 
 
 Utah Territory. {See aleo Deseret.) 
 
 1. McGrorty vs. Hooper, Fortieth Congress 216 
 
 2. Maxwell vs. Cannon, Forty-third Congress 291 
 
 3. Cannon, Forty-third Congress-. 298 
 
 4. Capnon vs. Campbell, Forty-seventh Congress 391 
 
 Utah. 
 
 1. Roberts, Fifty-sixth Congress 582 
 
 Vermont. 
 
 1 . Lyon vs. Smith, Fourth Congress 46 
 
 2. Mallary vs. Merrill, Sixteenth Congress 75 
 
 Virginia. 
 
 1. Trigg vs. Preston, Third Congress 42 
 
 2. Clopton, Fourth Congress 46 
 
 3. Rutherford vs. Morgan, Fifth Congress 48 
 
 4. Cabell vs. Randolph, Eighth Congress 52 
 
 5. Moore vs. Lewis, Eighth Congress 51 
 
 6. Taliaferro vs. Hungerford, Twelfth Congress 62 
 
 7. Bassett vs. Bayley, Thirteenth Congress 64 
 
 8. Taliaferro vs. Hungerford, Thirteenth Congress 63 
 
 9. Porterfleld vs. McCoy, Fourteenth Congress 67 
 
 10. Loyall vs. Newton, Twenty-first Congress 87 
 
 11. Draper vs. Johnston, Twenty-second Congress - 94 
 
 12. Botts vs. Jones, Twenty-eighth Congress 122 
 
 13. Gogginra. Gilmer, Twenty-eighth Congress 120 
 
 14. Beach, Thirty -seventh Congress 176 
 
 15. GrafHin, Thirty-seventh Congress. 184 
 
 16. MeOloud and Wing, Thirty-seventh Congress 182 
 
22 TABLE OF CASES. 
 
 Page. 
 
 17. McKenzie, Thirty-seventh Congress 183 
 
 18. Segar (2 cases), Thirty-seventh Congress _ 179,181 
 
 19. Upton, Thirty-seventh Congress 174 
 
 20. Chandler, Thirty-eighth Congress 190 
 
 21. McKenzie rs. McKitchen, Thirty-eighth Congres-. 186 
 
 22. Segar, Thirty-eighth Congress 197 
 
 23. Segar, Forty-first Congress 253 
 
 24. Tucker vs. Booker, Forty first Congress 250 
 
 25. Whittlesey vs. McKenzie, Forty-first Congress 246 
 
 26. McKenzie vs. Braxton, Forty-second Congres.s 265 
 
 27. Piatt vs. Goode, Forty-fourth Congress 318 
 
 28. Bayley vs. Barbour, Forty-seventh Congress 394 
 
 29. Stovell vs. Cabell, Fort}'-seventh Congress 393 
 
 30. Garrison vs. Mayo, Forty-eighth Congress , 398 
 
 31. Massey vs. Wise, Forty-eighth Congress 410 
 
 32. O'Ferrall vs. Paul, Forty-eighth Congress 402 
 
 33. Bowen vs. Buchanan, Fifty-first Congress 451 
 
 34. Langston vs. Venable, Fifty-first Congress 458 
 
 35. Waddill vs. Wise, Fifty-first Congress 452 
 
 36. Goode rs. Epes, Fifty-third Congress 496 
 
 37. Cornett vs. Swanson, Fifty-fourth Congress 534 
 
 38. Hoge vs. Otey, Fifty-fourth Congress 537 
 
 39. McDonald vs. Jones, Fifty-fourth Congress 502 ■ 
 
 40. . Thorp vs. McKenney, Fifty -fourth Congress 537 
 
 41. Yost vs. Tucker, Fifty-fourth Congress 547 
 
 42. Brown vs. Swanson, Fifty-fifth Congress 578 
 
 43. Thorp vs. Epes, Fifty-fifth Congress 565 
 
 44. Wise vs. Young, Fifty-fifth Congress' 569 
 
 45. Wise vs. Young, Fifty-sixth Congress 611 
 
 46. Walker vs. Rhea, Fifty-sixth Congress 606 
 
 ~ West Virginia. 
 
 1. Davis vs. Wilson, Forty-third Congress 284 
 
 2. Hagans vs. Martin, Forty-third Congrefes 284 
 
 3. Atkinson vs. Pendleton, Fifty-first Congress 440 
 
 4. McGinnis vs. Alderson, Fifty-first Congres.'* 466 
 
 5. Smith vs. Jackson, Fifty-first Congress 436 
 
 Wisconsin Territory. 
 
 1. Doty vs. Jones, Twenty-fifth Congress 107 
 
 2. Sibley, Thirtieth Congress 127 
 
 Wijo^m ing Terr tory. 
 
 1. Casement, Fortieth Congress 229 
 
INDEX TO CASES. 
 
 Abbott ( Josiah G. ) vs. Frost . 
 
 Abbott ( Jo. ), Kearby vs 
 
 Acklen vs. Darral' 
 
 Acklen, Merchant and Herbert vs 
 
 Adams (George M. ), Barnes vs 
 
 Adamg f John) , Root vs 
 
 Adams (Parmenio) vs. Wilson 
 
 Aiken, Stolbrand vs '. 
 
 Alderson, McGinnis vs 
 
 Aldrich vs. Robbins 
 
 Aldrich vs. Underwood 
 
 Aldrich to. Plowman 
 
 Aldrich vs. Robbins 
 
 Allen (James C. ) , Archer cs 
 
 Allen (John M. ), Brown vs 
 
 Allen (William) 
 
 Anderson (George W. ), bwitzler t-y. (2 cases ). 
 
 Anderson (Samuel J ) vs. Reed 
 
 Anderson (William 0. ), Chrisman is 
 
 Archer vs. Allen 
 
 Arkansas, election frauds in. 
 
 44 
 54 
 45 
 46 
 41 
 14 
 18 
 47 
 51 
 54 
 54 
 55 
 56 
 34 
 54 
 23 
 40 
 47 
 36 
 34 
 42 
 Armstrong, Burleigh and Spink vs i 42 
 
 Con- 
 gress. 
 
 Amell, Thomas vs. 
 
 Arnold vs. Lea 
 
 Atkinson vs. Pendleton 
 
 Babbitt 
 
 Bailey ( Adolj^he), Darrall ct . 
 
 Bailey, John 
 
 Baker . 
 
 Baldwin vs. Trowbridge , 
 
 Barbour, Bailey vs 
 
 Bard 
 
 Barnes vs. Adams 
 
 Barney vs. McCreery 
 
 Barrett, Blair vs 
 
 Bassett vs. Bayley 
 
 Bates, Lyon vs 
 
 Bayley (S. P. ) vs. Barbour 
 
 Bayley (Thomas M. ), Bassett vs 
 
 Baylies, Turner vs 
 
 Beach 
 
 Beattie vs. Price 
 
 Belford, Patterson c.s 
 
 Belknap (Charles E.) vs. Richardson. 
 
 Belknap (Hugh R. ) vs. McGann 
 
 Bell f John C. ) , Pearce vs 
 
 Bell (Marcus L. ) vs. Snyder 
 
 Bennet (H. P.) vs. Chapman 
 
 Bennett (T. W.), Fenn to 
 
 Benoit vs Boatner (2 cases) 
 
 Biddle vs. Richard 
 
 Biddle and Richard vs. Wing 
 
 39 
 21 
 51 
 31 
 41 
 18 
 29 
 39 
 47 
 4 
 41 
 10 
 36 
 13 
 17 
 47 
 13 
 11 
 37 
 54 
 45 
 53 
 54 
 54 
 43 
 34 
 44 
 54 
 18 
 19 
 
 State or 
 Territory. 
 
 Mass 
 
 Tex 
 
 La 
 
 La , 
 
 Ky 
 
 N.Y ... 
 N.Y .... 
 
 S.C...... 
 
 W Va... 
 Ala 
 
 Ala 
 
 Ala 
 
 Ala 
 
 111 
 
 Miss 
 
 Ohio.... 
 
 Mo 
 
 Maine... 
 
 Ky 
 
 Ill 
 
 Ark 
 
 Dak 
 
 Tenn . . . . 
 Tenn.... 
 W. Va... 
 Deseret . 
 
 La 
 
 Mass 
 
 111 
 
 Mich 
 
 Va 
 
 Pa 
 
 Ky 
 
 Md 
 
 Mo 
 
 Va 
 
 Ark 
 
 Va , 
 
 Va , 
 
 Mass 
 
 Va , 
 
 La .. 
 
 Colo ... 
 
 Mich 
 
 111 
 
 Colo ... 
 
 Ark 
 
 Neb 
 
 Idaho . . 
 
 La 
 
 Mich ... 
 Mich... 
 
 Page. 
 
 314 
 546 
 329 
 344 
 247 
 
 68 
 
 79 
 391 
 466 
 502 
 509 
 554 
 597 
 142 
 540 
 
 97 
 219 
 372 
 167 
 142 
 266 
 278 
 211 
 
 89 
 440 
 130 
 246 
 
 80 
 125 
 200 
 394 
 
 47 
 247 
 
 56 
 165 
 
 64 
 
 78 
 394 
 
 64 
 
 60 
 176 
 527 
 324 
 494 
 501 
 540 
 297 
 147 
 314 
 519, 526 
 
 80 
 
 83 
 
 23 
 
24 
 
 INDEX TO CASES. 
 
 Birch vs. King . . . 
 Bisbee, Finley vs . 
 Bisbee vs. Hull... 
 Bisbee vs. Finley. 
 Black, Watson vs. 
 Black, Watson vs. 
 Blair rs. Barrett. . 
 Blair 
 
 Blair, Knox vs 
 
 Blakey vs. GoUaday 
 
 Blydenburg and Jay vs. Sage and Lefferts. 
 
 Boatner, Benoit vs. (2 cases. ) 
 
 Boles vs. Edwards 
 
 Bonanzo, Field and Mann : 
 
 Booker, Tucker vs 
 
 Booze vs. Rusk 
 
 Boreing, White vs 
 
 Botkin vs. Maginnis 
 
 Botts vs. Jones 
 
 Bowen (Christopher C.) vs. De Large 
 
 Bowen (Henry) vs. Buchanan 
 
 Bowers, Williams vs 
 
 Boyd vs. Kelso 
 
 Boyden to. Shober 
 
 Boynton vs. Loring 
 
 Bradley to. Hynes 
 
 Bradley vs. Siemens 
 
 Braxton, McKenzie vs 
 
 Breckinridge, Clayton vs 
 
 Brewster, Ryan vs 
 
 froadhead, McLean to 
 rockenbrough vs. Cabell ■. . 
 
 Bromberg to. Haralson 
 
 Brooks (Henry P.) vs. Davi ; 
 
 Brooks (James), Dodge vs 
 
 Brown (John) to. Allen 
 
 Brown (John R. ) to. Swanson 
 
 Brown (John Young), Smith to 
 
 Bruce vs. Loan 
 
 Buchanan (George M. ) to. Manning 
 
 Buchanan (John A. ), Bowen to 
 
 Buck, Coleman to 
 
 Bullock, Goodrich to 
 
 Burch TO. Van Horn 
 
 Burleigh and Spink to. Armstrong 
 
 Burns jw. Young 
 
 Butler (John M. ) vs. Lehman 
 
 Butler (Roderick R. ) 
 
 Buttz TO. Mackey 
 
 Byington vs. Vandever 
 
 Cabell (Edward C. ), Brockenbrough vs ... 
 
 Cabell ( George C. ) , Sto veil to . . .■ 
 
 Cabell (Samuel J. ) vs. Randolph 
 
 California cases 
 
 Campbell (Allen J. ), Cannon vs 
 
 Campbell f Frank T.) vs. Weaver 
 
 Campbell (James E. ) vs. Morey 
 
 Campbell (Lewis D.), Vallandigham vs... 
 
 Campbell (Timothy J. ) vs. Miner 
 
 Cannon, Maxwell to 
 
 Cannon 
 
 Cannon vs. Campbell 
 
 Carlisle, Thobe to 
 
 38 
 45 
 46 
 47 
 53 
 54 
 36 
 38 
 38 
 40 
 13 
 54 
 42 
 38 
 41 
 54 
 56 
 48 
 28 
 42 
 51 
 13 
 39 
 41 
 46 
 43 
 46 
 42 
 51 
 55 
 48 
 29 
 44 
 35 
 39 
 54 
 55 
 40 
 38 
 47 
 51 
 54 
 51 
 40 
 42 
 43 
 37 
 40 
 44 
 37 
 29 
 47 
 8 
 49 
 47 
 49 
 48 
 35 
 54 
 43 
 43 
 47 
 50 
 
 State or 
 Territory. 
 
 Mo... 
 Fla .. 
 Fla .. 
 F\a. .. 
 
 Ga 
 
 Ga 
 
 Mo... 
 Mo... 
 Mo... 
 Kv... 
 X.'Y . 
 La ... 
 Ark.. 
 Lar... 
 Va... 
 Md .. 
 Kv... 
 Mont. 
 Va... 
 S.C.. 
 Va . . . 
 N. Y . 
 Mo... 
 N.C.. 
 Mass. 
 Ark.. 
 Ark.. 
 Va... 
 Ark.. 
 N.Y . 
 Mo... 
 Fla .. 
 Ala .. 
 Md .. 
 N.Y.. 
 Miss . 
 Va - . . 
 Ky... 
 Mo... 
 Jliss . 
 Va... 
 La ... 
 Fla .. 
 Mo... 
 Dak.. 
 Kv... 
 Pa... 
 Kv... 
 S.C.. 
 Iowa . 
 Fla .. 
 Va . . . 
 Va . . . 
 Cal .. 
 Utah. 
 Iowa . 
 Ohio. 
 Ohio. 
 N.Y.. 
 Utah. 
 Utah. 
 Utah . 
 Ky... 
 
INDEX TO CASES. 
 
 25 
 
 Carmack, Patterson vs 
 
 Oarrigan w. Thayer 
 
 Casement _ 
 
 Catchings, Hill vs 
 
 Gate, Featherston vs 
 
 Cavanaugh, Phelps vs 
 
 Cessna vs. Myers , 
 
 Chalmers, Lynch vs , 
 
 Chalmers vs. Manning. , 
 
 Chalmers vs. Morgan . _ 
 
 Chandler 
 
 Chapman, Bennet vs 
 
 Chapman vs. Ferguson 
 
 ChavesTO. Clever 
 
 Cheatham vs. Woodard 
 
 Chesebrough vs. McClellan 
 
 Chilcott, Hunt and 
 
 Childs, Steward vs 
 
 Chrisman vs. Anderson 
 
 Christy and Wimpy _ 
 
 Claiborne, Gholson and 
 
 Clark (S. B.) vs. Hall 
 
 Clark (Thomas H.) vs. Stallings 
 
 Clark (Richard H. ), Threetw 
 
 Clarke (W.T.) 
 
 Clarke (W. T.), Giddings to 
 
 Clayton (Henry D. ) , Comer vs ' 
 
 Clayton (John M. ) vs. Breckinridge 
 
 Clements 
 
 Clever, Chaves vs 
 
 Clopton 
 
 Cobb, Whatley vs 
 
 Cobb, Goodwin vs 
 
 CoHroth, Koontz vs. (2 cases) 
 
 Colden vs. Sharpe 
 
 Coleman vs. Buck 
 
 Colorado case ( Hunt and Chilcott) 
 
 Comer ■is. Clayton 
 
 Compton, Mudd vs ■. 
 
 Cook vs. Cutts 
 
 Cooper, Howard to 
 
 Cornett vs. Swanson 
 
 Cosden, Reed to 
 
 Covode, Foster vs. (2 cases) 
 
 Cox TO. Strait 
 
 Craig (Alexander H. ) vs. Stewart 
 
 Craig (George H. ) to. Shelley 
 
 Crawford, Pearson vs 
 
 Crockett (David) vs. Fitzgferald 
 
 Crowe vs. Underwood 
 
 Crowley, Rosenthal to 
 
 Culberson, Davis to 
 
 Culpepper, McFarland to 
 
 Curtin to. Yocum 
 
 Cutts, Cook vs 
 
 Daily vs. Estabrook 
 
 Daily, Morton vs 
 
 Darrall to. Bailey 
 
 Darrall, Acklen to 
 
 Davidson (Alexander C. ), McDuffie to 
 
 Davidson (George M. ) to. Gilbert 
 
 Davidson (Robert H. M. ), Witherspoon to 
 
 Davis (Henry Winter), Brooks to 
 
 Davis (Henry Winter), Harrison to 
 
 55 
 38 
 40 
 51 
 51 
 35 
 42 
 47 
 48 
 51 
 38 
 34 
 35 
 40 
 54 
 54 
 40 
 53 
 36 
 40 
 25 
 34 
 55 
 51 
 42 
 42 
 55 
 51 
 37 
 40 
 4 
 53 
 54 
 39 
 17 
 54 
 40 
 55 
 51 
 47 
 36 
 54 
 17 
 41 
 44 
 52 
 48 
 56 
 22 
 55 
 54 
 54 
 10 
 46 
 47 
 36 
 37 
 41 
 45 
 50 
 56 
 47 
 35 
 36 
 
 State or 
 Territory. 
 
 Va . . . . 
 Pa ... . 
 Wyo . : 
 Miss .. 
 Ark . . . 
 Minn.. 
 Pa ... . 
 Miss .. 
 Miss .. 
 Miss . . 
 Va . . . . 
 Nebr . . 
 Nebr . . 
 N. Mex 
 N.C... 
 N. Y . . 
 Colo . . 
 Ill .... 
 Ky.-. 
 Ga . . . . 
 Miss .. 
 Iowa . . 
 Ala . . . 
 Ala . . . 
 Tex . . . 
 Tex . . . 
 Ala . . . 
 Ark . . . 
 Tenn.. 
 N. Mex 
 Va . . . . 
 Ala . . . 
 Ala . . . 
 Pa ... - 
 N. Y . . 
 
 La 
 
 Colo . . 
 Ala ... 
 Md ... 
 Iowa . . 
 Mich.. 
 Va.... 
 Md ... 
 Pa.... 
 Minn . 
 Pa ... . 
 Ala . . . 
 N. Car. 
 Tenn.. 
 Ala . . . 
 Tex . . . 
 Tex . . . 
 N.C... 
 Pa ... . 
 Iowa . . 
 Nebr . . 
 Nebr . . 
 
 La 
 
 La 
 
 Ala . . - 
 Ky.... 
 Fla.... 
 Md ... 
 Md ... 
 
 Page. 
 
 231, 
 
26 
 
 INDEX TO CASES. 
 
 Davis (J. H. ) vs. Culberson 
 
 Davis (John J. ) vs. AVilson 
 
 Dawson, Fuller vs 
 
 Dean vs. Field 
 
 Delano, Follett vs 
 
 Delano vs. Morgan 
 
 De Large, Bowen vs 
 
 Denny vs. Owens 
 
 Dodge vs. Brooks 
 
 Donnelly (Ignatius) vs. Washburn . 
 
 Doty vs. Jones 
 
 Downing, Einaker vs 
 
 Draper vs. Johnston 
 
 Duffy vs. Mason 
 
 Dyer, Switzler vs 
 
 Earle 
 
 Easton vs. Scott 
 
 Edwards (Benjamin) '_ . 
 
 Edwards (John), Boles r.i 
 
 Eggleston vs. Strader 
 
 Elliott, Smalls vs 
 
 Elliott, Miller vs 
 
 Elliott, Miller vs 
 
 Elliott, Murray vs 
 
 English (Warren B.) vs. Hilborn. 
 English (William M.) vs. Peelle.. 
 
 Enloe, Thrasher vs 
 
 Epes, Goode vs 
 
 Epes, Thorp vs 
 
 Estabrook, Daily vs 
 
 Evans vs. Turner 
 
 Fairchild vs. Ward 
 
 Farlee vs. Runk _ 
 
 Farwell, Le Moyne vs 
 
 Fearing 
 
 Featherston vs. Oate 
 
 Felton (Charles N.), Sullivan vs . 
 Felton (William H.) vs. Maddox. 
 
 Fenn vs. Bennett 
 
 Ferguson, Chapman vs 
 
 Field (A. P.), 
 
 Field (A. P.), Bonanzo, Mann, and- 
 Field (Walbridge A.), Dean vs. 
 Finley vs. Walls. 
 
 Finley vs. Bisbee 
 
 Finley, Bisbee vs 
 
 Fisher, Wright vs 
 
 Fitzgerald, Crockett vs 
 
 Flanders and Hahn 
 
 Follett vs. Delano 
 
 Forsyth 
 
 Foster (Charles Henry) 
 
 ■Foster (Henry D. ) vs. Covode (2 cases) 
 
 Fouke rs. Trumbull 
 
 Frank rs. Glover 
 
 Frederick vs. Wilson 
 
 Frost ( R. Graham) vs. Metcalfe 
 
 Frost (R. Graham), Sessinghaus rs 
 
 Frost (Rufus S. ), Abbott vs 
 
 Fuller ( Alpheus) vs. Kingsbury 
 
 Fuller f Henry M. ) , Wright vs 
 
 Fuller (Smith) vs. Dawson , 
 
 Fuller (Thomas J. D. ), Milliken vs 
 
 54 
 43 
 39 
 
 45 
 39 
 40 
 42 
 54 
 39 
 46 
 25 
 54 
 22 
 46 
 41 
 15 
 14 
 
 3 
 42 
 41 
 50 
 51 
 52 
 54 
 53 
 48 
 53 
 53 
 55 
 36 
 56 
 55 
 29 
 44 
 
 7 
 51 
 50 
 54 
 44 
 35 
 38 
 38 
 45 
 44 
 45 
 47 
 21 
 22 
 37 
 39 
 18 
 37 
 41 
 34 
 50 
 48 
 45 
 47 
 44 
 35 
 32 
 39 
 34 
 
 State or 
 Territory, 
 
 Tex 
 
 W. Va.. 
 Pa 
 
 Mass . - - 
 Ohio... 
 Ohio... 
 
 S.C.... 
 Ky 
 
 N.y ... 
 
 Minn... 
 Wis.... 
 
 Ill 
 
 Va 
 
 N. Y ... 
 
 Mo 
 
 S.C... 
 
 Mo. 
 
 Md .... 
 
 Ark 
 
 Ohio... 
 
 S.C 
 
 S.C 
 
 S. C 
 
 S. C 
 
 Cal 
 
 Ind 
 
 Tenn... 
 
 Ya 
 
 Va 
 
 Nebr 
 
 Ky ..... 
 N.Y... 
 
 N.J 
 
 Ill 
 
 N.AV.Tv. 
 Ark . . _". 
 
 Cal 
 
 Ga 
 
 Idaho . . . 
 
 Nebr 
 
 La 
 
 La 
 
 Mass 
 
 Fla 
 
 Fla 
 
 Fla 
 
 N.Y.... 
 Tenn.... 
 
 La 
 
 Ohio.... 
 
 Ga 
 
 N.C... 
 
 Pa 
 
 Ill 
 
 Mo 
 
 Iowa 
 
 Mo 
 
 Mo 
 
 Minn. 
 Pa... 
 Pa... 
 Me... 
 
 529 
 284 
 207 
 332 
 205 
 213 
 282 
 511 
 203 
 355 
 107 
 506 
 94 
 346 
 250 
 73 
 68 
 43 
 264 
 256 
 429 
 461 
 480 
 543 
 486 
 404 
 487 
 496 
 565 
 163 
 590 
 559 
 124 
 308 
 50 
 441 
 432 
 510 
 314 
 159 
 197 
 198 
 332 
 305 
 326 
 368 
 87 
 94 
 181 
 205 
 82 
 180 
 231, 237 
 .41 
 428 
 413 
 837 
 378 
 814 
 155 
 137 
 207 
 143 
 
INDEX TO OASES. 
 
 27 
 
 Funston, Moore vs 
 
 Gallegos, Lane vs 
 
 Gallegos, Otero vs 
 
 Gallegos vs. Perea 
 
 Garrison vs. Mayo 
 
 Gause vs. Hodges 
 
 Gazin vs. Meyer 
 
 General ticket 
 
 Georgia cases 
 
 Gholson and Claiborne 
 
 Giddings vs. Clarke 
 
 Gilbert, Davidson, vs.. 
 
 Gilmer, Goggin vs 
 
 Glover, Frank vs 
 
 Goggin vs. Gilmer 
 
 Golladay, Blakey vs 40 
 
 Goode (John), Piatt vs 44 
 
 Goode (J. T.) vs. Epea ; 53 
 
 Gooding vs. Wilson ! 42 
 
 Goodrich vs. Bullock ! 51 
 
 Goodwyn vs. Cobb i 54 
 
 Grafflin 
 
 Graham, Newland vs 
 
 Greene, Van Wyck vs 
 
 Greevy vs. Scull 
 
 Gunter vs. Wilshire (2 cases) 
 Guyon vs. Sage 
 
 37 
 24 
 41 
 52 
 43 
 16 
 
 Hagans vs. Martin J 43 
 
 Hahn, Flanders and 37 
 
 Hall, Clark i>s 34 
 
 Hamilton 40 
 
 Hammond vs. Herrick 15 
 
 Handley, Norris vs 42 
 
 Handy, Willis vs 55 
 
 Haralson, Bromberg vs ' 44 
 
 Harris (J. Morrison), Whyte vs ' 35 
 
 Harris (J. Morrison), Preston vs 36 
 
 Harris (Thomas K.), Kelly to ; 13 
 
 Harrison (George P. ), Robinson rs ' 54 
 
 Harrison (Williana G. ) vs. Davis 36 
 
 Hawkins 37 
 
 Herrick, Hammond vs 15 
 
 Herbert (Hilary A. ), Strobach vs 47 
 
 Herbert (Robert O. ), Merchant and, vs. Acklen 46 
 
 Hilborn, English vs 53 
 
 Hill t)s. Catchings 51 
 
 Hodges, Gause vs 43 
 
 Hogan vs. Pile 40 
 
 Hoge ^ John) 8 
 
 Hoge (J. Hampton) vs. Otey 54 
 
 Hoge (S. L.) vs. Reed (two cases) 41 
 
 Holmes and Wilson 46 
 
 Hooker, Kernaghan vs 51 
 
 Hooper, McGrorty vs 40 
 
 Hopkins vs. Kendall 54 
 
 Howard vs. Cooper ■. 36 
 
 Hudson vs. McAleer ■'55 
 
 Hugunin vs. Ten Eyck : 19 
 
 Hull, Bisbee vs 46 
 
 Hungerford, Taliaferro vs 12 
 
 Hungerford, Taliaferro vs 13 
 
 Hunt vs. Menard 40 
 
 Hunt vs. Sheldon (two cases) 41 
 
 Hunter (Narsworthy) ..'. 7 
 
 State or 
 Territory, 
 
 Kans . . 
 N. Mex 
 N. Mex 
 N. Mex 
 Va . . . . 
 Ark . . . 
 La . 
 
 Ga,'.'.'.'. 
 Miss -. 
 Tex... 
 Ky.... 
 Va.... 
 Mo.... 
 Va..-. 
 Ky.... 
 Va . . . . 
 Va . . . . 
 Ind . . . 
 Fla ... 
 Ala . . . 
 Va.... 
 }^.C... 
 N. Y .. 
 Pa..... 
 Ark . . . 
 N. Y .. 
 W. Va. 
 
 La 
 
 Iowa.. 
 Tenn . . 
 Ohio .. 
 Ala... 
 Del ... 
 Ala ... 
 Md ... 
 Md .-. 
 Tenn . . 
 Ala ... 
 Md ... 
 Tenn . . 
 Ohio . . 
 Ala... 
 
 La 
 
 Cal.... 
 Miss .. 
 Ark . . . 
 Mo ... . 
 Pa ... . 
 Va.... 
 S. C . . . 
 Iowa . . 
 Miss... 
 Utah . . 
 Ky.... 
 Mich . . 
 Pa ... . 
 N.Y .. 
 Fla.... 
 Va . . . . 
 Va . . . . 
 
 La 
 
 La 
 
 Miss... 
 
 491 
 140 
 144 
 188 
 398 
 299 
 564 
 117 
 236 
 106 
 279 
 603 
 120 
 428 
 120 
 221 
 318 
 496 
 276 
 464 
 504 
 184 
 105 
 239 
 478 
 286 
 
 76 
 284 
 181 
 148 
 228 
 
 70 
 275 
 557 
 303 
 156 
 169 
 
 65 
 505 
 168 
 184 
 
 70 
 362 
 344 
 486 
 471 
 299 
 216 
 
 52 
 537 
 233 
 342 
 470 
 216 
 512 
 161 
 558 
 
 83 
 341 
 
 62 
 
 63 
 
 226 
 
 232, 241 
 
 49 
 
28 
 
 INDEX TO OASES. 
 
 Hunter (W. Godfrey) vs. Ehea 
 
 Hurd vs. Eomeis 
 
 Hynes, Bradley vs .' 
 
 Ingersoll vs. Naylor 
 
 Jacks and Johnson 
 
 Jackson (David SI), Monroe vs 
 
 Jackson (James) vs. Wayne 
 
 Jackson (James M. ), Smith vs ^ . . 
 
 Jay, Blydenbiirg and, vs. Sage and Lefferts 
 
 Jayne, Todd vs - - - 
 
 Jennings, Eandolph 7v; 
 
 Johnson, Jacks and 
 
 Johnston (Charles C. ), Drapfer vs 
 
 Johnston (Thomas B. ) vs. Stokes 
 
 Jones (George W. ), Doty rs , 
 
 Jones (Joim W. ), Botts vs 
 
 Jones (John W.) vs. Shelley - 
 
 Jones (Simon) vs. Mann 
 
 Jones (William A. ), McDonald rs 
 
 Joy, O'Neill vs , 
 
 Julian, Eeid vs 
 
 Kearby vs. Abbott 
 
 Kelly vs. Harris .^ 
 
 Kelso, Boyd rs ^ 
 
 Kendall, Hopkins vs.'. 
 
 Kentucky Members (2 cases) 
 
 Kernaghan vs. Hooker. . 
 
 Key. 
 
 Kidd vs. Steele 
 
 King, Birch vs 
 
 Kingsbury, Fuller vs 
 
 Kitchen, McKenzie vs , 
 
 Kitchin, O'Hara vs 
 
 Kline vs. Verree 
 
 Kline vs. Myers 
 
 Knox vs. Blair 
 
 Koontz TO. Coffroth (2 cases) 
 
 Lane to. Gallegos 
 
 I/angston to. Venable 
 
 Latimer (A. C. ) , Moorman to 
 
 Latimer (Henry) to. Patton 
 
 Lawrence to. Sypher 
 
 Lea, Arnold to 
 
 Lee TO. Eainey 
 
 Lee TO. Eichardson 
 
 Lefferts, Blydenburg and Jay vs. Sage and 
 
 Lehman, Butler vs 
 
 Leib 
 
 Le Moyne to. Farwell 
 
 Letcher vs. Moore 
 
 Levy 
 
 Lewis, Moore to 
 
 Lindsay vs. Scott 
 
 Littell TO. Eobbins 
 
 Loan, Bruce to 
 
 Lockhart, Martin to 
 
 Loring, Boynton to .' 
 
 Lowe (F. F. ) \ 
 
 Lowe (William M.) to. Wheeler. 
 
 Lowell 
 
 Lowry to. White 
 
 Loyall TO. Newton 
 
 Luna, Manzanares to 
 
 Con- 
 
 State or 
 
 gress. 
 
 Territory. 
 
 55 
 
 Ky 
 
 Ohio .... 
 
 49 
 
 43 
 
 Ark 
 
 26 
 
 Pa 
 
 38 
 
 Ark 
 
 30 
 
 N.Y .... 
 
 2 
 
 Ga 
 
 51 
 
 W.Va... 
 
 13 
 
 N.Y .... 
 
 38 
 
 Dak 
 
 11 
 
 Ind 
 
 38 
 
 Ark 
 
 22 
 
 Va 
 
 54 
 
 S.C 
 
 25 
 
 Wis.. . 
 
 28 
 
 Va 
 
 47 
 
 Ala 
 
 40 
 
 La 
 
 54 
 
 Va 
 
 53 
 
 Mo 
 
 41 
 
 Ind 
 
 54 
 
 Tex 
 
 13 
 
 Tenn 
 
 39 
 
 Mo 
 
 54 
 
 Ky 
 
 40 
 
 Ky 
 
 51 
 
 Miss 
 
 10 
 
 Md 
 
 49 
 
 Ind 
 
 38 
 
 Mo 
 
 ,35 
 
 Minn 
 
 38 
 
 Va 
 
 46 
 
 N. C .... 
 
 37 
 
 Pa 
 
 38 
 
 Pa 
 
 38 
 
 Mo 
 
 39 
 
 Pa 
 
 33 
 
 N. Mex.. 
 
 51 
 
 Va 
 
 54 
 
 S. C 
 
 3 
 
 Del 
 
 43 
 
 La 
 
 21 
 
 Tenn 
 
 44 
 
 S. C 
 
 47 
 
 S. C 
 
 13 
 
 N. Y.... 
 
 37 
 
 Pa 
 
 9 
 
 Pa 
 
 44 
 
 Ill 
 
 23 
 
 Ky 
 
 27 
 
 Fla 
 
 8 
 
 Va 
 
 38 
 
 Mo 
 
 31 
 
 Pa 
 
 38 
 
 Mo 
 
 54 
 
 N. .... 
 
 46 
 
 Mass 
 
 37 
 
 Cal 
 
 47 
 
 Ala 
 
 27 
 
 Me 
 
 50 
 
 Ind 
 
 21 
 
 Va 
 
 48 
 
 N. Mex.. 
 
 Page. 
 
INDEX TO CASES. 
 
 29 
 
 Lynch fJohn R.) vs. Chalmers... 
 Lynch (Joseph D.) vs. Vandever. 
 
 Lyon (Matthew) rs. Smith 
 
 Lyon (Hatthew) rs. Bates 
 
 Mabson rn. Oates 
 
 Mackey, Buttz vs 
 
 Mackey vs. O'Connor 
 
 Maddox, Felton vs 
 
 Maginnis, Botkin rs 
 
 Mallary vs. Meprill 
 
 Mann, Bonanzo, Field and 
 
 Mann, Jones vs 
 
 Manning, Buchanan rs 
 
 Manning, Chalmers rs 
 
 Manzanares rs. Luna 
 
 Marshall, Turuey vs 
 
 Martin (Benjamin F.), Hagans rs 
 Martin (Charles H. ) vs. Lockhart 
 
 Martin (Joseph J. ), Yeatea vs 
 
 Mason, Duffy vs 
 
 Massey rs. Wise 
 
 Maxwell vs. Cannon ^ 
 
 Mayo, Garrison vs 
 
 McAleer, Hudson vs 
 
 McCabe vs. Orth 
 
 McClellan, Chesebrough vs 
 
 McCloud and Wing 
 
 McClurg, Price vs 
 
 McCoy, Porterfield rs... 
 
 McCranie, Morey vs 
 
 McCreery, Barney vs 
 
 McDonald vs. Jones 
 
 McDuffie rs. Davidson 
 
 McDuffie vs. Turpin 
 
 McDuffie vs. Turpin 
 
 McFarland vs. Purviance 
 
 McFariand vs. Culpepper 
 
 McGann, Belknap vs 
 
 McGinnis vs. Alderson 
 
 McGrorty vs. Hooper 
 
 McHenry vs. Yeaman 
 
 McKee vs. Young (2 cases) 
 
 McKenney, Thorp vs 
 
 McKenzie 
 
 McKenzie vs. Kitchen 
 
 McKenzie, Whittlesey rs 
 
 McKenzie vs. Braxton 
 
 McKinley (William), Wallace i!.s. 
 
 McKissick to. Wallace 
 
 McLaurin, Wilson vs 
 
 McLean vs. Broadhead .'. 
 
 Mead, Spaulding vs 
 
 Menard, Hunt to 
 
 Mercer 
 
 Merchant and Herbert vs. Acklen 
 
 Merrill, Mallary vs 
 
 Messervy 
 
 Metcalfe, Frost vs 
 
 Meyer, Gazin vs. 
 
 Meyer, Romain vs 
 
 Milliken vs. Fuller 
 
 Miller (Daniel F.) vs. Thompson. 
 Miller (Thomas E. ) vs. Elliott 
 
 47 
 50 
 
 4 
 17 
 47 
 44 
 47 
 54 
 48 
 16 
 38 
 40 
 47 
 48 
 48 
 34 
 43 
 54 
 46 
 46 
 48 
 43 
 48 
 55 
 46 
 54 
 37 
 38 
 14 
 41 
 10 
 54 
 50 
 51 
 52 
 
 8 
 
 10 
 54 
 51 
 40 
 38 
 40 
 54 
 37 
 38 
 41 
 42 
 48 
 42 
 54 
 48 
 
 9 
 40 
 
 2 
 46 
 16 
 31 
 45 
 55 
 55 
 34 
 31 
 51- 
 
 State or 
 Territory. 
 
 Miss ... 
 
 Cal 
 
 Vt 
 
 Ark . . . , 
 Ala .... 
 S. C... 
 
 s. c... 
 
 Ga 
 
 Mont... 
 
 Vt 
 
 La 
 
 La 
 
 Miss ... 
 Miss ... 
 N. Mex 
 
 111 
 
 W. Va.. 
 N. C . . . 
 N. . . . 
 N. Y... 
 
 Va 
 
 Utah . . . 
 
 Va 
 
 Pa 
 
 Ind . . . . 
 N. Y... 
 
 Va 
 
 Mo 
 
 Va 
 
 La 
 
 Md .... 
 
 Va 
 
 Ala.... 
 Ala.... 
 Ala ... . 
 N.C.... 
 N.C.... 
 
 Ill 
 
 W. Va.. 
 Utah... 
 
 Ky 
 
 Ky 
 
 Va 
 
 Va 
 
 Va 
 
 Va 
 
 Va 
 
 Ohio... 
 S. C... 
 
 s. c... 
 
 Mo 
 
 Ga 
 
 La 
 
 Md .... 
 
 La 
 
 Vt 
 
 N. Mex. 
 
 Mo 
 
 La 
 
 La 
 
 Me 
 
 Iowa . . . 
 S. C... 
 
 Page. 
 
30 
 
 INDEX TO CASES. 
 
 Miller (Thomas E. ) rs. Elliott '. 
 
 Miner, Campbell vk -. 
 
 Mitchell vs. Walsh 
 
 Moffett, Myers is - - - 
 
 Monroe vs. Jackson 
 
 Moore (Andrew) vs. Lewis 
 
 Moore (H. L.) vs. Funston 1 
 
 Moore (Thomas P. ), Letcher vs 
 
 Moorman vs. Latimer 
 
 Morey (Frank) vs. McCranie Z 
 
 Morey (Frank), Spencer vs - 
 
 Morey ( Henry L.) , Campbell vs 
 
 Morgan ( Daniel ) , Rutherford vs 
 
 Morgan (George W. ), Delano vs ' 
 
 Morgan (James B. ), Chalmers vs 
 
 Morrison, Perkins vs 
 
 Morton (J. Sterling) rs. Daily 
 
 Mudd vs. Compton 
 
 Mumford 
 
 Murray es. Elliott 
 
 Myers (Leonard), Kline vs 
 
 Myers (Leonard) vs. Moffett 
 
 Myers (Benjamin F. ), Cessna vs 
 
 Naylor, IngersoU vs 
 
 New Jersey members \ 
 
 New Jersey case 1 
 
 Newland vs. Graham 
 
 Newman vs. Spencer .". 
 
 Newsham vs. Ryan 
 
 Newton (Thomas), Loyall vs 
 
 Newton (Thomas W.) and Yell.. 
 
 Niblack vs. Walla 
 
 Norris vs. Handley 
 
 Noy es vs. Rockwell i 
 
 Gates, Mabson vs 
 
 O'Connor, Mackey cs ^ 
 
 O'Ferrall vs. Paul , 
 
 O'Hara vs. Kitchin 
 
 O'Neill vs. Joy 1 
 
 Orth, McCabe vs 
 
 Otero vs. Gallegos , 
 
 Otey, Hoge vs 
 
 Owens, Denny rs. 
 
 Pacheco, Wigginton i-s 
 
 Page vs. Pirce 
 
 Page 
 
 Parrett, Posey vs 
 
 Patterson ( Josiah) rs, Carmack 
 
 Patterson (Thomas W.) vs. Belford 
 
 Patton, Latimer t'S 
 
 Paul, O'Ferrall vs 
 
 Pearce vs. Bell 
 
 Pearson vs. Crawford 
 
 Peelle, English vs 
 
 Pendleton, Atkinson rs .. .'. ■. 
 
 Perea, Gallegos vs 
 
 Perkins vs. Morrison 
 
 Peters, Wood vs 
 
 Phelps vs. Cavanaugh 
 
 Pigott 
 
 Pile, Hogan vs 
 
 Pinchback, Sheridan vs. (2 cases ) 
 
 Pirce, Page vs 
 
 Con- 
 
 State or 
 
 gress. 
 
 Territory. 
 
 52 
 
 S. C 
 
 54 
 
 N. Y 
 
 54 
 
 N. Y.... 
 
 41 
 
 Pa 
 
 30 
 
 N. Y . . . . 
 
 8 
 
 Va 
 
 53 
 
 Kans 
 
 23 
 
 Ky 
 
 54 
 
 S. C 
 
 41 
 
 La-. 
 
 44 
 
 La 
 
 48 
 
 Ohio 
 
 5 
 
 Va 
 
 40 
 
 Ohio .... 
 
 51 
 
 Miss 
 
 31 
 
 N. H.... 
 
 37 
 
 Nebr .... 
 
 51 
 
 Md 
 
 15 
 
 N.C 
 
 54 
 
 S. C 
 
 38 
 
 Pa 
 
 41 
 
 Pa 
 
 42 
 
 Pa 
 
 26 
 
 Pa 
 
 1 
 
 N.J 
 
 26 
 
 X.J 
 
 24 
 
 N. C .... 
 
 54 
 
 Miss 
 
 41 
 
 La 
 
 21 
 
 Va 
 
 29 
 
 Ark 
 
 42 
 
 Fla 
 
 42 
 
 Ala 
 
 52 
 
 N. Y . . . . 
 
 47 
 
 Ala 
 
 47 
 
 S. C 
 
 48 
 
 Va 
 
 46 
 
 X. C .... 
 
 53 
 
 :mo 
 
 46 
 
 Ind 
 
 34 
 
 N. :\Iex 
 
 54 
 
 Va 
 
 54 
 
 Ky 
 
 45 
 
 Cal 
 
 49 
 
 R. I 
 
 53 
 
 R. I 
 
 51 
 
 Ind 
 
 55 
 
 Va 
 
 45 
 
 Colo .... 
 
 3 
 
 Del 
 
 48 
 
 Va 
 
 54 
 
 Colo .... 
 
 56 
 
 N.C 
 
 48 
 
 Lid 
 
 51 
 
 W.Va... 
 
 38 
 
 X. Mex.. 
 
 31 
 
 N.H.... 
 
 48 
 
 Kans 
 
 35 
 
 Minn 
 
 Ol 
 
 N.C 
 
 40 
 
 Mo 
 
 43 
 
 La 
 
 49 
 
 R.1 
 
INDEX TO CASES. 
 
 31 
 
 Piatt vs. Goode 
 
 Plowman, Aldrioh vs 
 
 Pool vs. Skinngr 
 
 Porterfield vs. McCoy 
 
 Posey vs. Parrett 
 
 Post, Worthington vs 
 
 Preston (Francis) , Trigg vs 
 
 Preston (William P. ) vs. Harris 
 
 Price (Andrew), Beattie vs 
 
 Price vs. McOlurg 
 
 Purviance, McFarland rx 
 
 Rainey, Lee vs - - . 
 
 Eainey , Richardson vs 
 
 Ramsay vs. Smith 
 
 Randolph (Thomas) vs. Jennings 
 
 Randolph (Thomas M. ), Cabell ?•« 
 
 Ratlifi vs. "Williams 
 
 Rawls, Sloan vs 
 
 Reading, Taylor vs 
 
 Reed (J. P. ) , Hoge vs. (2 cases ) 
 
 Reed (Philip) vs. Cosden , 
 
 Reed (Thomas B. ) > Anderson vs 
 
 Reeder vs. Whitfield (2 cases) 
 
 Reid vs. Julian - 
 
 Reynolds vs. Shonk 
 
 Rhea (William F. ), Walker vs - 
 
 Rhea (John S.), Hunter vs 
 
 Rice (Alexander H.), Sleeper vs 
 
 Rice (John M.), Zeigler vs 
 
 Richard, Biddle vs 
 
 Richard, Biddle and, vs. Wing 
 
 Richards 
 
 Richardson ^George F. ), Belknap vs 
 
 Richardson (John S. ) rs. Rainey 
 
 Richardson (John S. ), Lee vs 
 
 Rinaker vs. Downing 
 
 Ripley, Washburn vs - - 
 
 Robbins (Gaston A. ), Aldrich rs 
 
 Robbins f Gaston A. ), Aldrich vs 
 
 Robbins (John), Littell vs 
 
 Roberts 
 
 Robertson, Smith vs - 
 
 Robinson vs. Harrison 
 
 Rockwell, Noyes vs 
 
 Rodgers - 
 
 Rodgers •- 
 
 Remain vs. Meyer 
 
 Romeis, Hurd vs 
 
 Root vs. Adams 
 
 Rosenthal 'w. Crowley 
 
 Runk, Farlee vs 
 
 Rusk, Booze vs 
 
 Rutherford vs. Morgan - - 
 
 JRyan (Michael) , Newsham vs ". 
 
 Ryan (William E. ) vs. Brewster 
 
 Sage, Blydenburg and. Jay vs. Lefferts and. 
 
 Sage, Guyon vs 
 
 Schenck 
 
 Scott f John), Easton vs 
 
 Scott (John G. )> Lindsay r.t. 
 
 Scull, Greevy vs - 
 
 Segar (2 cases) 
 
 Segar 
 
 Segar 
 
 44 
 
 55 
 
 48 
 
 14 
 
 51 
 
 50 
 
 3 
 
 36 
 
 54 
 
 38 
 
 8 
 
 44 
 
 45 
 
 1 
 
 11 
 8 
 54 
 43 
 41 
 41 
 17 
 47 
 34 
 41 
 52 
 .56 
 55 
 38 
 41 
 18 
 19 
 4 
 53 
 45 
 47 
 54 
 21 
 54 
 56 
 31 
 56 
 47 
 54 
 52 
 37 
 41 
 55 
 49 
 14 
 54 
 29 
 54 
 5 
 41 
 55 
 13 
 16 
 38 
 14 
 38 
 52 
 37 
 38 
 41 
 
 State or 
 Territory. 
 
 Va..:. 
 Ala . . . 
 N.C... 
 Va.... 
 Ind . . . 
 Ill . . . 
 Va.... 
 Md ... 
 
 La 
 
 Mo... 
 N. C . 
 S. 0.. 
 
 s. c. 
 s. c. 
 
 Ind .. 
 Va... 
 Miss . 
 Ga... 
 Pa... 
 S. C. 
 Md .. 
 Me... 
 Kans. 
 Ind.. 
 Pa ... 
 Va . . . 
 Ky... 
 Mass. 
 Ky... 
 Mich. 
 Mich. 
 Pa... 
 Mich. 
 S. C. 
 S. C. 
 Ill ... 
 Me... 
 Ala .. 
 Ala .. 
 
 Pa ;.. 
 
 Utah. 
 La ... 
 Ala .. 
 N. Y . 
 Tenn. 
 Tenn. 
 La ... 
 Ohio -. 
 N.Y . 
 Tex.. 
 N.J.. 
 Md .. 
 Va... 
 La ... 
 N.Y . 
 N.Y . 
 N.Y . 
 N.Y . 
 Mo... 
 Mo... 
 Pa ... 
 Va... 
 Va... 
 Va... 
 
 Page. 
 
 318 
 554 
 400 
 67 
 451 
 427 
 42 
 169 
 527 
 189 
 51 
 313 
 334 
 37 
 61 
 52 
 540 
 288 
 240 
 233 
 77 
 372 
 145, 149 
 253 
 477 
 606 
 557 
 187 
 255 
 80 
 83 
 45 
 494 
 334 
 384 
 506 
 91 
 502 
 597 
 133 
 . 582 
 372 
 505 
 474 
 184 
 260 
 563 
 415 
 68 
 529 
 124 
 519 
 48 
 244 
 563 
 66 
 76 
 192 
 . 68 
 195 
 478 
 179, 181 
 197 
 253 
 
32 
 
 INDKX TO CASES. 
 
 Sergeant. . .•. 
 
 Sessinghaus vs. Frost 
 
 Settle, Williams vs 
 
 Sharpe, Golden vs 
 
 Shaw, Thompson v.i 
 
 Sheafe to. Tillman 
 
 Sheldon, Hunt vs. (2 cases) 
 
 Shelley, Jones vs 
 
 Shelley, Smith to . 
 
 Shelley, Craig to 
 
 Sheridan to. Pinchback (2 cases) 
 
 Shiel TO. Thayer 
 
 Shields to. Van Horn 
 
 Shober, Boyden ra 
 
 Shonk, Reynolds rs 
 
 Sibley.-. 
 
 Sickles (Daniel), Williamson vs 
 
 Simpson, Wallace to. (2 cases) 
 
 Skinner, Pool to 
 
 Sleeper rs. Rice 
 
 Siemens, Bradley rs 
 
 Sloan TO. Rawls 
 
 Smalls r.s. Tillman 
 
 Smalls rs. Elliott 
 
 Smith (Alexander) rs. Robertson ... 
 
 Smith ( Charles B. ) rs. .Tackson 
 
 Smith (Hugh N.) 
 
 Smith f Israel), Lyon to 
 
 Smith (James Q. ) to. Shelley 
 
 Smith (Samuel E. ) vs. Brown 
 
 Smith (William) , Ramsay to 
 
 Smith (William S.), Willoughby to. 
 
 Snyder, Bell to 
 
 Spaulding to. Mead 
 
 Spencer (J. G. ), Newman to 
 
 Spencer (William B. ) rs. Morey 
 
 Spink, Burleigh and, rs. Armstrong . 
 
 Stallings, Clark to 
 
 Steele, Kidd to 
 
 Steward to. Childs 
 
 Stewart, Craig rs 
 
 St. Martin, Sypher rs 
 
 Stokes, Johnston to 
 
 Stolbrand to. Aiken 
 
 Stovell rs. Cabell 
 
 Strader, Eggleston rs 
 
 Strait, Cox to i 
 
 Strobach to. Herbert 
 
 Sullivan to. Felton 
 
 Swanson, Cornett to .*. 
 
 Swanson, Brown rs 
 
 Swanwick 
 
 Switzler to. Anderson (2 cases) 
 
 Switzler rs. Dyer 
 
 Symes to. Trimble 
 
 Sypher to. St. Martin 
 
 Sypher , 
 
 Sypher, Lawrence rs 
 
 Taliaferro to. Hungerford 
 
 Taliaferro to. Hungerford. . .' 
 
 Tarauey Van Horn rs 
 
 Taylor rs. Reading 
 
 Ten Eyck, Huguuin to 
 
 Con- 
 gress. 
 
 19 
 47 
 53 
 17 
 54 
 41 
 41 
 47 
 47 
 48 
 43 
 37 
 41 
 41 
 52 
 30 
 36 
 41 
 48 
 38 
 46 
 43 
 47 
 50 
 47 
 51 
 31 
 
 4 
 47 
 40 
 
 1 
 14 
 43 
 
 9 
 54 
 44 
 42 
 55 
 49 
 53 
 52 
 41 
 54 
 47 
 47 
 41 
 44 
 47 
 50 
 54 
 55 
 
 4 
 40 
 41 
 40 
 41 
 42 
 43 
 12 
 13 
 54 
 41 
 19 
 
 State or 
 Territory. 
 
 Pa 
 
 Mo 
 
 N.C.... 
 N. Y . . . 
 N.C... 
 Tenn... 
 
 La 
 
 Ala ... . 
 Ala . . . . 
 Ala . . . . 
 
 La 
 
 Oreg 
 
 Mo 
 
 N.C... 
 
 Pa 
 
 Wis ... . 
 N.Y ... 
 S.C.... 
 N.C... 
 
 Mass 
 
 Ark.... 
 
 Ga 
 
 S. C . . . . 
 S. C . . . . 
 
 La 
 
 W. Va.. 
 N..AIex. 
 Vt .... 
 Ala ... . 
 
 Ky 
 
 s. c . . . . 
 N. Y . . . 
 Ark.... 
 
 Ga 
 
 Miss ... 
 
 La 
 
 Dak 
 
 Ala 
 
 Ind .... 
 
 Ill 
 
 Pa 
 
 La 
 
 S. C... 
 s. c . . . . 
 
 Va 
 
 Ohio ... 
 
 Minn 
 
 Ala .... 
 
 Cal 
 
 Va 
 
 Va 
 
 Pa 
 
 Mo 
 
 Mo 
 
 Kv 
 
 La 
 
 La 
 
 La 
 
 Va 
 
 Va 
 
 Mo 
 
 Pa 
 
 N.Y ... 
 
 Page. 
 
 85 
 378 
 484 
 
 78 
 520 
 257 
 232, 241 
 394 
 364 
 411 
 293 
 171 
 259 
 257 
 477 
 127 
 163 
 235, 244 
 400 
 187 
 339 
 288 
 381 
 429 
 372 
 436 
 129 
 
 46 
 364 
 220 
 
 37 
 
 67 
 297 
 
 54 
 540 
 311 
 278 
 554 
 422 
 493 
 472 
 241 
 530 
 391 
 393 
 256 
 309 
 362 
 432 
 534 
 578 
 
 46 
 219 
 250 
 218 
 241 
 283 
 300 
 
 62 
 
 63 
 515 
 240 
 
 88 
 
INDEX TO CASES. 
 
 33 
 
 Con- 
 gress. 
 
 State or 
 Territory. 
 
 Tennessee election 
 
 Thayer (A. J.), Shiel w 
 
 Thayer (M. Eussell), Oarrigan vs . 
 
 Thobe vs. Carlisle 
 
 Thomas vs. Arnell 
 
 Thompson f Cyrus) vs. Shaw 
 
 Thompson (William), Miller rs . . 
 
 Thorp vs. McKenney 
 
 Thorp vs. Epes 
 
 Thrasher i)s. Enloe 
 
 Threat ra. Clarke 
 
 Tillman (George D. ), Smalls vs... 
 
 Tillman (Lewis) , Sheaf e va 
 
 Todd vs. Jayne 
 
 Tongue, Vanderburg vs 
 
 Trigg vs. Preston 
 
 Trimble, Symesrs 
 
 Trowbridge, Baldwin vs 
 
 Trumbull, Foukew 
 
 Tucker (George) vs. Booker 
 
 Tucker (H. St. George), Yost vs . 
 
 Turner (Charles) i)s. Baylies 
 
 Turner (Oscar) , Evans vs 
 
 Tumey vs. Marshall 
 
 Turpin, McDuffie vs 
 
 Turpin, McDuffie vs 
 
 Underwood, Aldrich vs 
 
 Underwood, Crowe vs 
 
 Upton 
 
 Varnum 
 
 Vallandigham vs. Campbell 
 
 Van Allen, Van Rensselaer vs ... 
 Vanderburg vs. Tongue . 
 
 Vandever (Wm.), Byington vs. 
 Vandever (Wm.), Lynch vs. 
 
 Van Horn (Eobert T.), Burch vs. 
 
 ;T.)i 
 
 Van Horn (Robert T.)vs. Tarsney 
 
 Van Ness 
 
 Van Rensselaer vs. Van Allen 
 
 Van Wyck vs. Greene 
 
 Venable, LangstoniJS 
 
 Verree, Kline to 
 
 Voorhees, Washburn vs 
 
 Waddill vs. Wise 
 
 Walker vs. Rhea 
 
 Wallace (A. S.) vs. Simpson (2 cases). 
 
 Wallace (A. S. ) , McKissick vs 
 
 Wallace (Jonathan H.) vs. McKinley. 
 
 Walls, Niblack vs 
 
 Walls, Finley vs..: 
 
 Walsh, Mitchell vs 
 
 Ward, Eairchild vs 
 
 Washburn (Henry D.) vs. Voorhees .. 
 
 Washburn fReuel) vs. Ripley 
 
 Washburn (William D.), Donelly w.. 
 
 Watson vs. Black 
 
 Watson vs. Black 
 
 Wayne (Anthony), Jackson vs 
 
 Weaver, Campbell vs 
 
 Whatley vs. Cobb 
 
 Wheeler, Lowe vs 
 
 White (James) 
 
 White (James B. ), Lowry vs 
 
 42 
 37 
 38 
 50 
 39 
 54 
 31 
 54 
 55 
 53 
 51 
 47 
 41 
 38 
 56 
 
 3 
 40 
 39 
 34 
 41 
 54 
 11 
 56 
 34 
 51 
 52 
 54 
 55 
 37 
 
 4 
 35 
 
 3 
 55 
 37 
 50 
 40 
 41 
 54 
 
 7 
 
 3 
 41 
 51 
 37 
 39 
 51 
 56 
 41 
 42 
 48 
 42 
 44 
 54 
 55 
 39 
 21 
 46 
 53 
 54 
 
 2 
 
 49 
 
 53 
 
 .47 
 
 3 
 50 
 
 Tenn 
 
 Oreg 
 
 Pa 
 
 Ky 
 
 Tenn 
 
 isr.c 
 
 Iowa..'.. 
 
 Va 
 
 Va 
 
 Tenn 
 
 Ala 
 
 s.c 
 
 Tenn 
 
 Dak 
 
 Oreg 
 
 Va 
 
 Ky 
 
 Mich 
 
 111 
 
 Va 
 
 Va 
 
 Mass 
 
 Ky 
 
 Ill 
 
 Ala 
 
 Ala 
 
 Ala 
 
 Ala 
 
 Va...... 
 
 Mass 
 
 Ohio.... 
 N.Y .... 
 
 Oreg 
 
 Iowa 
 
 Cal 
 
 Mo 
 
 Mo 
 
 Mo 
 
 N.Y .... 
 N.Y .... 
 N.Y .... 
 
 Va 
 
 Pa 
 
 Ind 
 
 Va 
 
 Va 
 
 s.c 
 
 S.C 
 
 Ohio.... 
 
 Fla 
 
 Fla 
 
 N.Y .... 
 N.Y ... 
 
 Ind 
 
 Maine.. 
 Minh ... 
 
 Ga 
 
 Ga 
 
 Ga 
 
 Iowa 
 
 Ala 
 
 Ala.... 
 S. W. Ty 
 Ind.... 
 
 H. Doc. 510- 
 
34 
 
 INDEX TO CASES. 
 
 White (John D. ), vs. Boreing. _ 
 
 Whitfield, Reader vs. (2 cases) 
 
 Whittlesey vs. McKenzie 
 
 Whyte vs. Harris 
 
 Wigginton vs. Pacheco 
 
 Wilcox 
 
 Williams f A. H. A. ) vs. Settle 
 
 Williams (Isaac) vs. Bowers 
 
 Williams (J. S.) , Ratliff vs 
 
 Williamson vs. Sickles 
 
 Willis vs. Handy 
 
 Willoughby vs. Smith 
 
 Wilshire, Gunter vs. (2 cases) 
 
 Wilson (Benjamin) , Davis vs 
 
 Wilson (Isaac), Adams us 
 
 Wilson (James), Frederick to 
 
 Wilson (Jeremiah M. ), Goodings vs 
 
 Wilson f John L. ), Holmes and 
 
 Wilson (Joshua E. ) vs. McLaurin 
 
 Wimpy, Christy and 
 
 Wing (Austin B.) , Biddle and Richard vs 
 
 Wing (W.W.),Mc01oud and 
 
 Wise (George D. ) , Waddill vs 
 
 Wise (John S. ), Massey vs 
 
 Wise (Richard A. ) vs. Young 
 
 Wise (Richard A. ) vs. Young 
 
 Witherspoon vs. Davidson 
 
 Wood vs. Peters 
 
 Woodard, Cheatham vs 
 
 Worthington vs. Post 
 
 Wright fHendrick B.) vs. Fuller 
 
 Wright (Silas) vs. Fisher 
 
 Yeaman, McHenry vs 
 
 Yeates vs. Martin 
 
 Yell, Newton and 
 
 Yocum, Curtin vs 
 
 Yost vs. Tucker 
 
 Young (John D.^, McKeera. (2 cases) 
 
 Young (John D.) , Burns vs 
 
 Young fWilliam A. ), Wise vs 
 
 Young (William A.) , Wise to 
 
 Zeigler to. Rice 
 
 Con- 
 
 56 
 34 
 41 
 35 
 45 
 56 
 53 
 13 
 54 
 36 
 55 
 14 
 43 
 43 
 18 
 48 
 42 
 46 
 54 
 40 
 19 
 37 
 51 
 48 
 55 
 56 
 47 
 48 
 54 
 50 
 32 
 21 
 38 
 46 
 29 
 46 
 54 
 40 
 43 
 55 
 56 
 41 
 
 State or 
 Territory. 
 
 Ky.... 
 Kans-- 
 Va.... 
 Md.... 
 CaL... 
 Hawaii 
 N.C... 
 N. Y.. 
 Miss .. 
 N.Y .. 
 Del ... 
 N. Y . . 
 Ark . . . 
 W.Va. 
 N. Y.. 
 Iowa . . 
 Ind... 
 Iowa . . 
 S.C... 
 Ga.... 
 Mich.. 
 Va.... 
 Va.... 
 Va.... 
 Va.... 
 Va.... 
 Fla ... 
 Kans. . 
 N.C .. 
 111.... 
 Pa.... 
 N.Y.. 
 Ky ... 
 N.C .. 
 Ark... 
 Pa.... 
 Va.... 
 Ky.... 
 Ky...- 
 Va.... 
 Va.... 
 Ky.... 
 
 606 
 145, 149 
 246 
 156 
 322 
 601 
 484 
 
 65 
 540 
 163 
 557 
 
 67 
 286 
 284 
 
 79 
 413 
 276 
 342 
 541 
 225 
 
 83 
 182 
 452 
 410 
 569 
 611 
 368 
 401 
 521 
 427 
 137 
 
 87 
 193 
 349 
 125 
 350 
 547 
 222 
 290 
 569 
 611 
 255 
 
PA^RT I. 
 
 ABSTRACT OF CASES BY CONGRESSES. 
 
 35 
 
ABSTRACT OF OASES. 
 
 FIRST CONGRESS, 1789-1791. 
 
 Committee on Elections. 
 
 Mr. Clymer, Ml'. White, 
 
 Ames, Huntington, 
 
 Benson, Gilmer, 
 
 Mr. Carroll. 
 
 Cmes. 
 
 (1) David Eamsay vs. William Smith, South Carolina. 
 
 (2) New Jersey members. 
 
 (1) Ramsay vs. Smith. 
 
 Question of eligibility. Decided in favor of sitting member. 
 
 William Smith, a minor, was sent from the colony of South Caro- 
 lina, of which his ancestors were the first settlers, to Europe for his 
 education in 1770. His father died five months after his departure. 
 His mother had died in 1760. In 1778 he went from Geneva to Paris, 
 where he resided two months as an American, being received as 
 such by the American residents. In January, 1779, he attempted to 
 return home, but failed. In Januarj^ 1782, he sailed for America, 
 having studied law until that time in England, but not haA-ing taken 
 any oath of allegiance to Great Britain. He was shipwrecked and did 
 not reach South Carolina until 1783. After his return he was elected 
 to the legislature, the privy council, and other public ofiices, and in 
 1788 to Congress. During his absence he had guardians and an estate 
 in South Carolina. His seat in the House was contested on the ground 
 that he had not been "seven years a citizen of the United States." 
 The laws of South Carolina were not very definite upon the subject of 
 citizenship, but, aside from the tacit recognition of Mr. Smith's citi- 
 zenship by the people and legislature of the State, the status as citizens 
 of 3'outh sent abroad for their education had been recognized by impli- 
 cation in a law permitting them to remain freely until they had reached 
 the age of twenty-two years, and after that on payment of a double tax. 
 
 The House decided, with only one dissenting vote, that the sitting 
 member was eligible under the Constitution. 
 
 This being the first election case in the House of Representatives, 
 the mode of procedure was debated at some length. The testimony 
 was taken in the first instance by the Committee on Elections at the 
 seat of government, the House to decide afterwards whether any fur- 
 ther testimony was necessary. After the evidence had been taken it 
 was sought to recommit it to the committee with instructions to 
 
 37 
 
38 DIGEST OF CONTESTED ELECTION CASES. 
 
 embody the facts established by the evidence in a report, but after 
 some debate the House decided to examine the evidence itself, appar- 
 ently on the ground that any other course would be a delegation of 
 power. 
 
 [C. &H., 23-37.] 
 
 (2) New Jekset Members. 
 
 Decision infawor of sitting members. (James Schureman, Lambert 
 Cadwallader, Elias Boudinot and Thomas Sinnickson.) 
 
 Owing to the burning of the papers and documents of Congress from 
 the First to the Sixth Congress by the British in 1814, it is impos- 
 sible to ascertain precisely on what ground the election of the New 
 Jersey members was contested. The matter appears to have come up 
 first before the governor and privy council of New Jersey, where it 
 was decided by the governor and a majority of the council, over the 
 written protest of three members, that the persons above named had 
 been elected, and a proclamation was accordipgly issued to that effect. 
 
 The debate, so far as preserved, relates entirely to the mode of pro- 
 cedure. The evidence was first taken, under a resolution of the House, 
 by the Committee on Elections, but it appearing that certain evidence 
 could not be conveniently obtained except by proceeding to New Jer- 
 sey, the committee asked instructions of the House. After debate, in 
 which the proposition to send a commission to the State where the 
 election occurred was characterized as a dangerous precedent, the mat- 
 ter was laid on the table, and some time later, the committee present- 
 ing another report, apparently based on the evidence first obtained, 
 the House decided that the sitting members were entitled to their seats. 
 The question of the propriety of hearing counsel was also raised, 
 but no decision reached. 
 
 [C. & H., 38^4.] 
 
SECOND COKGKESS. 39 
 
 SECOND CONGRESS, 1791-1793. 
 
 Cmnmittee on Elections. 
 
 Mr. LivEKMOKE, Mr. Bourne, Khode Island, 
 
 boudinot, hillhodse, 
 
 Giles, Steele, 
 
 Mr. Geeet. 
 
 (1^ John F. Mercer, Maryland. 
 
 (2) James Jackson vs. Anthony Wayne, Georgia. 
 
 (1) Meecee. 
 
 Resignation sent to State executive. 
 
 William Pinkney had been returned as a member from Maryland, 
 but the question of residence having been raised against him he sent 
 his resignation to the governor, who thereupon issued a writ for an 
 election to fill the vacancy. John F. Mercer having been returned as 
 elected, it was decided after debate that he was entitled to the seat. 
 
 [C. &H.,44r^6.] 
 
 (2) Jackson vs. Wayne. 
 
 Irregularities a/nd corruption. Seat declared vacant. 
 
 Contestant charged (1) ' ' that the election in Effingham County was 
 contrary to law, being held under the inspection of three persons, one 
 of whom only was a justice of the peace, although the law requires that 
 all three should be justices; (2) that there were 9 more votes given 
 than there were voters duly qualified in the county; (3) that the votes 
 of Glynn County were suppressed, the return of them having been 
 committed to the Hon. Judge Osborne, who had undertaken to transmit 
 them to the governor, but instead thereof had conveyed them to 
 Anthony Wayne, the sitting member; (4) that after the closing of 
 the legal poll of the county of Camden the return of the votes (being 
 15 for General Wayne and 10 for General Jackson, the petitioner) was 
 delivered to Judge Osborne, the presiding officer, who, with some other 
 persons, did afterwards hold a second election, and augmented the votes 
 considerably in favor of General Wayne; (5) undue and corrupt 
 practices at the election, as the setting down the names of persons as 
 voters who were not present, and the keeping back of the tax return 
 for the county of Camden, which was the only check upon persons 
 offering to vote." 
 
 Testimony was taken by deposition for the first time in this case. 
 The House passed a special resolution providing that depositions might 
 be taken within a specified time and before specified officers, and that 
 the evidence in behalf of the petitioner should be confined to the proof 
 of the charges contained in his petition. 
 
 The trial proceeded in the House (sitting in Committee of the Whole), 
 as in a court, and counsel were heard for both sides. 
 
40 DIGEST OF CONTESTED ELECTION CASES. 
 
 On the trial the petitioner offered in evidence the decisions and pro- 
 ceedings of the senate and house of representatives of Georgia in the 
 impeachment of Judge Osborne, so far as they bore upon the matters 
 complained of in this case, but the House refused to receive them, as 
 well as certain other evidence offered which did not bear upon the 
 specific charges made in the petition. 
 
 A resolution was first passed unanimously declaring that the sitting 
 member was not elected, and then, after a long debate upon the right 
 of General Jackson to the seat, a second resolution was passed declaring 
 the seat vacant. 
 
 [C. & H., 47-68.] 
 
THIRD CONGRESS. 41 
 
 THIRD CONGRESS, 1793-1795. 
 
 Committee on Elections, first session. 
 
 Mr. William Smith, Mr. Lee, 
 
 Sheaejashul Bourne, Dayton, 
 
 Irwine, Gordon, 
 Mr. Macon. 
 
 Oases. 
 
 (1) Henry Latimer vs. John Patton, Delaware. 
 
 (2) Henry K. Van Rensselaer ■««. John E. Van Allen, N'ew York. 
 
 (3) Abraham Trigg vs. Francis Preston, Yi/rginia. 
 
 Committee 07i Elections, second session. 
 
 Mr. Drayton, Mr. Lee, 
 
 Hillhouse, Macon, 
 
 Dent, Hunter. 
 
 (4^ James White, Southwestern Territory. 
 (5) Benjamin Edwards, Maryland. 
 
 (1) Latimer vs. Patton. 
 
 Question of legal fimn of iallots. Decision in favor of contestant. 
 
 The law of Delaware provided (the State being entitled to one mem- 
 ber of Congress) that every person offering to vote "shall deliver in 
 writing, on one piece of paper, the names of two persons, inhabitants 
 of the State, one of whom, at least, shall not be an inhabitant of the 
 same county with himself." The judges of election in some of- the 
 counties rejected ballots containing the names of two persons, neither 
 of whom was an inhabitant of the same county with the voter, and in 
 some of the other counties counted ballots containing but one name. 
 The committee reported and the House held that the tickets rejected 
 should have been counted, and the tickets containing only one name 
 should have been rejected. This would give the majority to Latimer, 
 and he was accordingly seated. 
 
 The testimony was taken by commissioners under a special resolu- 
 tion of the Committee on Elections. This seems to have been the first 
 case where the trial first took place before the Committee on Elections. 
 The testimony taken was transmitted to the committee instead of to 
 the Speaker, and the committee for the first time reported a state of 
 facts and their conclusions on them. Their report was committed to 
 the Committee of the Whole House, accompanied with a written argu- 
 ment by the sitting member, and on the trial in the House the argu- 
 ment was based on the report of the committee and statement of the 
 sitting member as well as on the depositions. 
 
 The decision of the committee was sustained by a vote of 57 to 31. 
 
 [C. &H., 69-72.] 
 
42 digest of contested election cases. 
 
 (2) Van Rensselabe vs. Van Allen. 
 
 Trreffularities in the election and returns. Decision i/n, favor of 
 sitting member. 
 
 The seat was contested on the grounds that in one town more votes 
 were actually oast for petitioner than were canvassed and returned for 
 him; in another, the box was not locked as required by law, and in 
 another, the ballot box was for some time in the possession of the 
 sitting member without warrant of law. 
 
 The committee reported that, according to the law of the State of 
 New York, the fact that more votes were cast for petitioner in a town 
 than were returned for him could not, if proved, be sufficient to set 
 aside the vote of the town, and that the other allegations were also 
 immaterial, as even if the votes of these towns should be set aside 
 there still remained a majority for the sitting member. 
 
 The House disagreed to the report of the committee, but on what 
 ground it is difficult to tell, as a resolution embodying substantially 
 the same findings was passed immediately afterwards. 
 
 The debate was largely upon the question of how far the laws of the 
 State of New York were binding on the House, and what effect partial 
 corruption, if proved, would have on the validity of the whole elec- 
 tion. The opinion of the committee was stated to be that if the major 
 part of the votes was unaffected by corruption the result should be 
 determined from such major part. 
 
 [C. & H., 73-77.] 
 
 (3) Teigg vs. Peeston. 
 
 Irregularities and military interference. The committee recom,mended 
 tliat the seat ie vacated, hut the House decided in favcn' of the sitting 
 member. 
 
 The election was contested on the ground that the sheriffs in two 
 counties had adjourned the poll for a day, and that in another county 
 United States troops, under the command of a brother of the sitting 
 member, had violently interfered with the election. 
 
 The committee found that the adjournment of the polls by the sheriffs 
 was within the discretionary power given them by the Virginia law. 
 
 As to the county where military interference was charged, it appeared 
 that Capt. William Preston, brother and agent at the election of the 
 sitting member, was quartered near the voting place with 60 or 70 
 Federal troops, of which he had command. On the day of the 
 election the troops were marched in a body twice or three times around 
 the court-house, and paraded in front of and close to the door thereof. 
 The troops were allowed to vote, and voted generally in favor of the 
 sitting member, but their votes were thrown out bj- the returning 
 officers. Some of them threatened to beat any person who should vote 
 in favor of the petitioner. One of the soldiers struck and knocked 
 down a magistrate. Three soldiers stood at the door of the court- 
 house and refused to admit a voter because he declared he would vote 
 for the petitioner. There were altercations between the soldiers and 
 the country people, which terminated in a violent affray after the polls 
 were closed. Most of the soldiers seem to have been unarmed, except 
 the captain, who had his sword. 
 
THIRD CONGRESS. 43 
 
 The only proof that anyone was actually prevented from voting was 
 hearsay evidence, but the committee thought it very probable that 
 some were, and, as the majority returned for the sitting member was 
 only 10, recommended that the election be set aside. 
 
 The case was debated for three days, the arguments in favor of sit- 
 ting member being chiefly that Southern elections should not be judged 
 by the standard of the Eastern States; that riots and intimidation were 
 an established custom and quite a matter of course in all Southern 
 elections; and that the election in question was much less disturbed than 
 many others in regard to which there was no question. (For a curious 
 description by a Southern member of what he alleged to be the ordi- 
 nary election practices in his section at this time, see the speech of Mr. 
 Smith, of Maryland, quoted in C. & H., 82-83.) 
 _ The resolution reported by the committee was defeated, and the sit- 
 ting member confirmed in his seat.' 
 
 [C.&H., 78-84.] 
 
 (4) White. 
 
 Question of right of Southwestern Territory to he represented iy a 
 Delegate. Delegate achnitted. 
 
 By the ordinance of 1787 for the government of the Territory 
 Northwest of the Ohio the Territory was given authority, so soon as 
 it should have a population of 6,000 free male inhabitants, to elect a 
 general assembly, which should elect a " Delegate z!^ Congress" who 
 should have a seat in Congress,-with a right of debating but not of voting. 
 By the act of 2d April, 1790, the same privilege was given to the Ter- 
 ritory Southwest of the Ohio. Mr. White was elected a Delegate by 
 the legislature of this Territory, and applied for a seat in the House of 
 Eepresentatives. The committee found his election in accordance with 
 the ordinance for the government of the Territory, and recommended 
 that he be admitted. After considerable debate the House sustained 
 the report of the committee. There were objections to his admission 
 on the ground of the unconstitutionality of the law, which provided for 
 the creation of a new sort of member not provided for in the Consti- 
 tution, and also on the ground that, having been elected by the legisla- 
 ture and as a "Delegate to Congress," his place was more properly in 
 the Senate than in the House. 
 
 It was decided that the Delegate could not be required to take the 
 oath exacted of members. During the session a bill was passed allow- 
 ing him paj' and the privilege of franking letters as a member. 
 
 [C. &H., 85-91.] 
 
 (5) Edwards. 
 
 Right of resignation to the governor, and question of credentials 
 necessary to entitle ons to take his seat as a memher of the House. 
 
 Uriah Forrest, a member from the State of Maryland, sent his 
 resignation to the governor of Maryland, and sent to the Speaker 
 a letter informing him of his resignation, and of the election of Ben- 
 jamin Edwards as his successor. This letter, and one from the clerk 
 
 ' The House at the same session passed a bill designed to prevent military inter- 
 ference at elections, but it was rejected by the Senate. 
 
44 DIGEST OF CONTESTED ELECTIOK CASES. 
 
 of the council of Maryland to said Edwards, informing him that a cer- 
 tificate of election had been forwarded to the Speaker, were laid before 
 the House and referred to the Committee on Elections, which reported 
 that the credentials were insufficient. The report was laid on the 
 table, and some time later, the certificate of election having arrived, 
 it was referred to the committee, on whose recommendation Mr. 
 Edwards was admitted to the seat. 
 [C. &H., 92-94.] 
 
FOURTH CONGRESS. 45 
 
 FOURTH CONGRESS, 1795-1797. 
 
 Committee on Elections. 
 
 Mr. Venable, Mr. Dearborn, 
 
 Dent, Harper, 
 
 KiTTERA, Blount, 
 
 Mr. Swift. 
 
 Gases. 
 
 fl) John Richards, Penrhsylvania. 
 
 (2) John Clopton, Virgima. 
 
 (3) Matthew Lyon vs. Israel Smith, Vermont.. 
 
 (4) John Swanwick, Pennsylvania. 
 
 (5) Joseph B. Varnum, Massachusetts. 
 
 (6) David Bard, Pennsylvania. 
 
 (1) Richards. 
 
 Irregularities in returns. Seat given petitioner. 
 
 At the time of the election, in October, 1794, a large nmnber of the 
 inhabitants of Pennsylvania were absent on the "Western expedi- 
 tion." A special law was passed by the State legislature providing 
 that elections should be held in the Army on the same day as in the 
 districts, the returns to be sent to the prothonotaries of the respec- 
 tive counties by the 10th of November, and to be delivered by them 
 on that day to the county judges, and that the district judges should 
 meet on the 15th of November to canvass the county returns. On the 
 10th of November only one militia return had arrived. Counting this 
 and the regular returns would give James Morris 1,648 votes and peti- 
 tioner, John Richards, 1,635. But between November 10 and 15 
 another militia return was received and canvassed. If this were 
 counted, the vote would be Morris, 1,706; Richards, 1,791. 
 
 Some months afterwards (January 18, 1795) papers were filed with 
 the secretary of state purporting to be another regimental return, but 
 unaccompanied by any list of voters and not appearing to have been 
 examined by the county judges. If this should be counted with pre- 
 vious returns, the vote would be Morris, 1,797; Richards, 1,791. 
 
 In the first case Morris would be elected, in the second Richards, 
 and in the third Morris. 
 
 The governor refused to decide the question, and no certificate was 
 issued. Before the meeting of Congress Mr. Morris died, and Mr. 
 Richards memorialized the House for the seat. The committee first 
 reported that no returns not made within the time prescribed by law 
 should be counted, and counting the vote regularly returned (accord- 
 ing to first statement above) it would appear that Morris was elected, 
 and accordingly a new election was recommended. The report was 
 recommitted without specific instructions, and the committee made a 
 second report recommending that the return received between Novem- 
 ber 10 and 15, and regularly examined, should be counted, but that 
 the return received in January, being substantially defective, having 
 
46 DIGEST OF CONTESTED ELECTION CASES. 
 
 never been examined by the county judges, and being unaccompanied 
 by a list of voters, should be rejected. This would give the seat to 
 petitioner (see second statement above). In addition, 18 of the votes 
 for Morris in the army return regularly made and first counted were 
 illegal, 16 not appearing on the tax lists and 2 being given by proxy. 
 The report was sustained, and Mr. Richards admitted to a seat. 
 [C. &H., 95-100.] 
 
 (2) Clopton (more properly Basset vs. Clopton). 
 
 Decision in favor of sitting member. 
 
 The committee examined the question of illegal votes, and after 
 deducting all the votes of unqualified persons from the respective can- 
 didates reported that Clopton had a majority of the remainder and 
 was entitled to the seat. The House concurred. 
 
 There is no further information available in regard to this case. 
 
 [C. & H., 101.] 
 
 (3) Lyon vs. Smith. 
 
 Faihire to notify certain towns of the election. Decision in favor of 
 sitting memier. 
 
 At the first election no candidate received a majority of the votes, 
 and notice was accordingly given, under the Vermont statute, of a sec- 
 ond election. The sitting member was elected at the second election 
 by a majority of 21 votes, but two towns which had given 15 votes at 
 the previous election — 12 for the sitting member and 3 for his oppo- 
 nent — failed to receive notice of the election, which was contested on 
 this ground. The committee reported that the votes of these towns 
 being insufBcient to change the result if all cast for the petitioner, the 
 failure to notify them should not invalidate the election. It appeared 
 that evidence had been taken ex parte by the petitioner tending to show 
 that there were enough voters in these towns to have changed the result 
 of the election, which evidence had been excluded by the committee. 
 An effort was made to recommit the report to the committee for the 
 purpose of instituting an inquiry into the facts sought to be established 
 by the excluded testimony, and the case was finally postponed, appar- 
 ently for the purpose of enabling the petitioner to present further 
 testimony. On again taking up the case a "second report" (minority 
 report?) of the committee was considered, in which it appeared that 
 from the depositions on file there were shown to be 36 voters in the two 
 towns. A petition had been received from 20 of these voters stating 
 that they would have voted for the petitioner, but this would still 
 leave the sitting member a majority of 1, and there were contrary 
 affidavits from some of the voters. The title of Mr. Smith to his seat 
 was finally confirmed. 
 
 [C. & H., 101-111.] 
 
 (4) SWANWICK. 
 
 A petition of sundry citizens of Philadelphia, contesting the election 
 of John Swanwick, was presented, but the committee reported that 
 the petitioners had entirely failed to support their allegations, and had 
 formally abandoned them. It does not appear what were the grounds 
 of contest. 
 
 [C. & H., 112.] 
 
fourth congress. 47 
 
 (5) Vaenum. 
 
 Illegal votes and votes hyproay. Question of certainty of allegations 
 required. Decision in favor of sitting member. 
 
 The election of Mr. Varnum was contested by a petition from sundry 
 citizens of Massachusetts on the ground that votes had been given for 
 him by proxy and by persons not qualified to vote. The committee 
 asked the House for instructions, and it was resolved, that the allega- 
 tion that votes were given by proxy was sufficiently certain without 
 giving the names of the voters, but that the allegation that votes were 
 given by unqualified persons was not sufficient without the names. 
 
 It was moved that the Committee on Elections be instructed to pre- 
 scribe a mode whereby evidence might be taken, but the motion was 
 "defeated. The next session a report was filed setting forth that the 
 p'etitioners had failed to prosecute their case, but the sitting member 
 had produced evidence to show that the election in the town complained 
 of was conducted with the utmost fairness, and that the only irregu- 
 larities were at other places and in the interest of another candidate. 
 The report closed with a condemnation of the petitioners, as excited 
 by malevolence in their contest. This was amended by the House by 
 substituting expressions of compliment to the sitting member, and 
 the report so amended was agreed to. 
 
 [C. &H., 112-116.] 
 
 (6) Bard. 
 
 Seturns inade after the legal time. Decision in favor of sitting 
 memher. 
 
 This case appears to have been the result of an ex officio investiga- 
 tion by the committee. . . 
 
 The district judges attempted to get together on the third Tuesday 
 in October and the 15th of November, the legal times for the making 
 of their returns, but, apparently owing to some misunderstanding, did 
 not all meet until the 1st of May, when they returned David Bard as 
 having the highest number of votes. On account of this informality 
 in the time of the return, the committee obtained the original county 
 returns, on which the district return was founded. These confirmed 
 the district returns, and the committee accordingly reported that Mr, 
 Bard was entitled to his seat. The House agreed to the report. 
 
 [C. &H., 116,117.] 
 
48 DIGEST OF CONTESTED ELEOTIOK CASES. 
 
 FIFTH CONGRESS, 1797-1799. 
 
 Committee on Elections. 
 
 Mr. CoiT, Mr. Dent, 
 
 Vaentjm, Harrison, 
 
 John Williams, Baldwin, 
 
 Mr. Hartley. 
 
 (1) Robert Rutherford vs. Daniel Morgan, Virginia. 
 
 Illegal votes and iribery. Decision in favor of sitting Tnemher. 
 
 The petitioner alleged that votes, illegal on account of the nonresi- 
 dence of the voters, were given for sitting member sufficient in number 
 to overcome the majority returned, and that money was pi'omised by 
 the sitting member or his friends for "meat, drink, wagon hire, and 
 other acts of bribery and corruption," with the result that the free- 
 dom and purity of the election was greatly interfered with by disorder 
 and carousals. 
 
 The committee prescribed a mode of procedure similar to that pre- 
 scribed in the case of Latimer vs. Patton, with the additional provi- 
 sions that the parties should give each other notice, at least ten days 
 before taking any testimony, of the names of the persons to the legal- 
 ity of whose votes they meant to object, and that the testimony of the 
 petitioner should be confined to the facts stated in the specification by 
 him handed to the committee. 
 
 The testimony having been taken, the committee reported that it 
 was wholly insufficient to support the allegations of the memorial. 
 The House concurred in the report. 
 
 [C. & H., 118, 119.] 
 
 SIXTH CONGRESS, 1799-1801. 
 
 Gommbittee on Elections. 
 
 Mr. Dana, Mr. Henderson, 
 
 Sumter, Gordon, 
 
 KiTTEEA, Bailey, 
 
 Mr. New. 
 
 There were no cases in the Sixth Congress. 
 
SEVENTH CONGKESS. 49 
 
 SEVENTH CONGRESS, 1801-1803. 
 
 Oom/mittee on Jilections, first session. 
 
 Mr. MiLLEDGE, Mr. Hanna, 
 
 Tenney, Stanley, 
 
 CONDIT, TaLIAFERKO, 
 
 Mr. Dennis. 
 
 Case. 
 (1) Narsworthy Hunter, Mississippi Territory. 
 
 Committee on Elections., second session. 
 
 Mr. Bacon, Mr. Elmer, 
 
 Tenney, Stanley, 
 
 CoNDiT, New, 
 
 Mr. Dennis. 
 
 (2) John P. Van Ness, JSFeu) York. 
 
 (3) Paul Fearing, Northwestern Territory. 
 
 (1) Hunter. 
 
 Sight of Miss'msijppi Territory to send Delegate to Congress. Dele- 
 gate admitted to House. 
 
 By acts of 1798 and 1800 Congress extended the provisions of the 
 ordinance of 1787 for the government of the Northwest Territory to 
 Mississippi Territory, including the right to elect a general assembly, 
 which should elect a "Delegate to Congress." Mr. Hunter, having 
 been elected by the general asseml)ly of Mississippi Territory, pre- 
 sented his credentials to the House of Representatives. They were 
 referred to the Committee on Elections, which reported that the Ter- 
 ritory had a right to elect a Delegate and that Mr. Hunter's credentials 
 were regular. He was admitted to his seat. 
 
 [C. &H.,120, 121.] 
 
 (2) Van Ness. 
 
 Acceptance hy me I fiber of office wilder United States. Seat vacated. 
 
 Mr. Van Ness, a Representative from the State of New York, had, 
 during the recess of Congress, accepted the office of major of the militia 
 of the District of Columbia. On the reconvening of Congress the 
 Committee on Elections were instructed, on motion of Mr. Davis, of 
 Kentucky, to inquire whether the acceptance of such office did not 
 vacate the seat of Mr. Van Ness. The committee reported that the 
 acceptance of any office under the Government rendered a member 
 incapable of further holding a seat in Congress. Mr. Van Ness argued 
 that the provision of the Constitution was onl}- intended to apply to 
 civil officers, and should not deprive an officer of the Territorial mil- 
 
 H .Doc. 510 4 
 
50 DIGEST OF CONTESTED ELECTION CASES. 
 
 itia of the privilege of membership which was not denied to officers 
 of State militias. The House vacated the seat by a unanimous yea and 
 nay vote. 
 
 [C.&H., 122-127.] 
 
 (3) Fearing. 
 
 Territory ernoted into a State. Delugatu still retained his neat. 
 
 The Northwestern Territory had been erected into the State of Ohio, 
 and the Committee on Elections were instructed to inquire whether 
 the seat of the Territorial Delegate did not thereby become vacant. 
 The committee reported that the Delegate was still entitled to his seat. 
 The report was ordered to lie on the table, and the Delegate having 
 already taken his seat, he was thus permitted to retain it. 
 
 [C. & H., 127, 128.] 
 
EIGHTH CONGRESS. 51 
 
 EIGHTH CONGRESS, 1803-1805. 
 
 Committee on Mectiwis^ first session. 
 
 Mr. FiNDLEr, Mr. Vaknum, 
 
 GoDDAED, Livingston, 
 
 Matthew Clay, Kennedy, 
 
 Mr. Hunt. 
 
 (1^ Andrew Moore vs. Thomas Lewis, Virginia. 
 
 (2) Duncan McFarland vs. Samuel D. Purviance, Worth CaroUna. 
 
 (3) Samuel J. Cabell vs. Thomas M. Randolph, Virginia. 
 
 Gmnmittee on lilections, second session. 
 
 Mr. FiNDLEY, Mr. Eppes, 
 
 Vaknum, Clagett, 
 
 Livingston, Elmek, 
 
 Mr. Kenedy. 
 
 Case. 
 
 (4) John Hoge, Pennsylvania. 
 
 (1) Moore vs. Lewis. 
 
 Illegal votes. Seat given to petitioner. 
 
 The committee reported that a large number of votes on both sides 
 were given by persons not qualified to vote. What the .disqualification 
 was or by what evidence it was established does not appear. Deduct- 
 ing from the vote of each candidate the votes cast for him by unqualified 
 voters, a majority of the remainder were cast for petitioner, and the 
 committee reported that he was entitled to the seat. The House sus- 
 tained the report and Mr. Moore took his seat. Counsel were heard 
 at the bar of the House in this case. 
 
 [C. &H., 128-130.] 
 
 (2) McFaeland vs. Purviance. 
 
 Oath not taken hy officers of election, and other irregularities. Part 
 of the testimony taken without legal notice. Sitting member retained 
 his seat. 
 
 Petitioner charged that the oflicers of election in Montgomery 
 County refused to take the oath prescribed by law, and that there 
 were irregularities — of what nature does not appear — in Cumberland 
 County. The testimony in regard to Montgomery County was legall}'^ 
 taken under the act of 1797 in the presence of a voluntary agent of 
 the sitting member. It established the fact that the election officers 
 refused to take the oath, and the committee recommended that the vote 
 of the county be thrown out. The first testimony in regard to Cum- 
 berland County was taken after legal notice and in the presence of the 
 
52 DiaEST OF COWTBSTED ELECTION OASES. 
 
 same voluntary agent of the sitting naember. It was not sufficient to 
 overthrow the vote of the county. Notices to take further testimony 
 were served on the agent of the sitting member who had previously 
 attended, and were also forwarded to the sitting member himself, who 
 was in Congress, but did not reach him in time for him to att«nd. His 
 agent did not attend. 
 
 Part of the testimony was taken by magistrates not named in the 
 notification, and was not properly certified. A part appeared to be 
 in the handwriting of the petitioner. On these grounds the commit- 
 tee excluded the testimony, and the remaining evidence not being 
 sufficient to overthrow the vote of Cumberland County the committee 
 recommended that the sitting member be allowfed to retain the seat in 
 spite of the rejection of Montgomery County. No action was ever 
 had on this case in the House. 
 
 [C. &H., 131-133. J 
 
 (3) Cabell vs. Randolph. 
 
 Case dismissed hecause not jirosecuted with reasonable diligence. 
 
 The election seems to have been contested on the ground of illegal 
 votes. The memorial was presented October 18, 1803. On October 
 13 and November 3, 1803, and January 6, 1804, the petitioner, by let- 
 ter, requested that the determination of the case be delayed until he 
 could procure testimony. The land lists and most of the voting lists 
 were missing. Afterwards he was notified to appear before the com- 
 mittee, but did not comply with the notification, and on March 9, 1804, 
 the committee reported that there was nothing in the papers on file 
 invalidating the right of the sitting member to his seat, and recom- 
 mending that he be confirmed in his title. No action was taken by the 
 House. 
 
 [C. &H., 134.] 
 
 (4) HOGE. 
 
 Power of governor to prescribe timeof holding election to jillvacnncy. 
 Decision in favor of sitting member. 
 
 William Hoge, a member from Pennsylvania, resigned his seat to 
 the governor only a few days before the election for Presidential elec- 
 tors, in November, 1804. The legistature of Pennsylvania had pre- 
 scribed no time for the holding of elections to fill vacancies, and so 
 the governor issued writs for an election to be held at the same time 
 and places, and by the same officers, as the election for Presidential 
 electors. The notice was promulgated in the district only one day 
 before the election, and most of the voters seem not to have received 
 actual notice until the day of election at the polling places. It being 
 generally understood that there was no doubt of the result of the elec- 
 tion for Presidential electors, the number of voters attending at the 
 polls, and consequently receiving actual notice of the election to fill 
 the vacancy in Congress, was small. John Hoge received a majority 
 of the votes cast, and claimed the seat. A memorial was presented 
 contesting his election, and referred to the Committee on "Elections 
 which reported in favor of giving the seat to Hoge. 
 
 The report contended that though it was the duty of the legislature 
 to enact laws prescribing the time, manner, and place of holding elec- 
 
EIGHTH CONGRESS. 53 
 
 tions to fill vacancies, no such law had been passed, and the governor, 
 in Pennsylvania, as in other States, had been in the habit of fixing 
 the time of election in the writs of election which he was required 
 under the Constitution to issue. If this election was not valid, no 
 election could be held to fill the vacancy until the legislature should 
 pass a law providing for holding it. The law of the State required 
 thirty days' notice for a regular election for members of Congress, 
 and fifteen days' notice for filling vacancies in the State legislature. 
 The notice in this case was much shorter than that required in either 
 of these cases, and shorter than in ordinary cases would be considered 
 reasonable, "yet, considering the special circumstances connected with 
 the election of John Hoge, and particularly that the election took 
 place on the da}' fixed by the State legislature for the appointment of 
 electors for the State o'i Pennsylvania, the committee are of opinion 
 that John Hoge is entitled to a seat in this House." 
 
 Against this report it was contended in debate that the Constitution 
 in empowering the governor to issue writs to fill vacancies did not 
 empower him to prescribe the time of election, for this would neces- 
 sarily include also the power to prescribe the place and manner of elec- 
 tion, which would be giving him a dangerous discretion. While the 
 legislature had passed no law especiall}' relating to the filling of vacan- 
 cies in Congress, the laws providing for the regular elections ought 
 to control elections to fill vacancies, at least so far as prescribing the 
 place and manner of election and the length of notice to be given. In 
 this case the notice given was unreasonably short and there were strong 
 grounds for believing that if more ample notice had been given the 
 result would have been different. 
 
 After being fully debated, the report of the committee was suytained 
 by a vote of 69 to 38, and Mr. Hoge was admitted to his seat. 
 
 [C. & H., 136-156.] 
 
54 DIGEST OF CONTESTED ELECTION OASES. 
 
 NINTH CONGRESS, 1805-1807. 
 
 Committee on Elections. 
 Mr. FiNDiiEY, Mr. Sohuneman, 
 
 Elmer, 
 
 Bid well, 
 
 Eppes, 
 
 Ellis, 
 
 Mr. 
 
 Chittenden. 
 
 Cases. 
 
 (1) Thomas Spaulding vs. Cow]es Mead, Georgia. 
 
 (2) Michael Leib, Pennsylvania. 
 
 (1) Spaulding vs. Mead. 
 
 Yotes not returned as the State law required counted hy the House and 
 the seat given to petitioner. 
 
 The law of Georgia provided that the returns of Congressional elec- 
 tions should be forwarded to the governor within twenty days after 
 the election, and the result certified by him within five days thereafter. 
 In this case the returns from three counties did not reach the governor 
 within twenty-five days, and he issued his certificate at the proper time 
 on the basis of the returns received, which showed a majority for 
 Cowles Mead. Some time later returns were received from the other 
 three counties. They were in regular form, the elections seemed to 
 have been regular, and if the votes were counted the petitioner, Thomas 
 Spaulding, would have a majority in the district. Ex parte testimony 
 was presented by the petitioner to show that the cause of the delay in 
 transmission of the returns was a hurricane, which rendered the roads 
 impassable. This testimony being excluded by the committee, the 
 petitioner offered to procure legal evidence of the same fact, and the 
 sitting member offered to procure evidence to the contrary, but the com- 
 mittee, deeming the question immaterial, declined to receive further 
 evidence. The conclusion of the committee was that the returns of 
 State officers are orAj prima facie evidence of the result of an election, 
 and not conclusive on the House; that under the constitutional power 
 of the House to judge of the elections, qualifications, and returns of 
 members it had the right to count these votes, though not returned in 
 due time; and that as there was no fraud claimed, and no irregularity 
 except the delay in transmission of the returns, the votes ought to be 
 counted. 
 
 As this was the first case in which it was proposed to change the 
 result of an election by counting votes which could not be counted 
 under the State law, an elaborate debate ensued upon the question of 
 the power of the House in the premises. Against the report it was 
 argued that the right to judge and the rule of decision are distinct 
 things. In this case the right to judge resided in the House, but the 
 rule of decision must be the regulations prescribed by the States. 
 Congress has the power, if it chooses, to make or alter regulations for 
 holding elections for members of Congress, but not for making returns, 
 which are under the exclusive control of the States. From which it 
 
NINTH CONGRESS. 55 
 
 was argued that the right of the House to judge of the returns of its 
 members must be exercised in obedience to the fixed rules of the States 
 prescribing the manner and time of maldng these returns. 
 
 The arguments in favor of the report were that if the power of 
 judging of returns were confined to the mere judging of the authen- 
 ticity of the certificate of the final returning officer, it would be nuga- 
 tory. Under "returns" are included everything required to be done 
 by way of ascertaining and proclaiming the result from the moment 
 the election is closed, and the power to judge of returns must be a 
 power to judge of the whole process. The proposition to count these 
 votes was not a proposition to set aside the law of Georgia, for that 
 did not say that the House should not count the votes, but only that 
 the governor should not; but it was rather giving effect to the provi- 
 - sions of the Georgia law where it had failed to be executed by the 
 State officers. The final power of judging of the whole question of 
 returns must reside in the House or nowhere. 
 
 The report of the committee was sustained by a vote of 66 to 52 and 
 Mr. Spaulding took his seat. 
 
 [C. &H., 157-165.] 
 
 (2) Leib. 
 
 Petition slwvld he specific. Case dismissed. . 
 
 A petition was presented praying for the appointment of a commis- 
 sion to investigate the election of Michael Leib. No specific charges 
 of any illegality in the election were made, and the committee reported 
 that on such a petition there could be no satisfactory trial of the merits 
 of the election in question and recommended that the petitioner have 
 leave to withdraw his papers. The report was agreed to without 
 debate or division. 
 
 [C. & H., 165, 166.] 
 
56 ' DIGEST OF CONTESTED ELECTION CASES. 
 
 TENTH CONGEESS, 1807-1809. 
 
 Committee on Electionn. 
 Mr. FiNDLEY, Mr. Blake, 
 
 D. R. Williams, Stukges, 
 
 Matthew Clay, Elliott, 
 
 Mr. Lambekt. 
 
 (Mr. Williams and Mr. Blake having obtained leave of absence, 
 Messrs. Marion and Kirkpatrick were, on the 26th of Januaiy, 1808, 
 substituted in their places on this committee.) 
 
 Cases. 
 
 (1) Joshua Barney vs. William McCreery, Maryland. 
 
 (2) Duncan McFarland vs. John Culpepper, North Carolina. 
 
 (3) Philip B. Key, Maryland. 
 
 (1) Baeney vs. McCkeery. 
 
 Power of the State to superadd qvMlifications to those prescribed hy the 
 Constitution. Decision %n favor of the sitting member., Tmt direct deci- 
 sion of the constitutional question avoided. 
 
 Under the law of Maryland the town and county of. Baltimore con- 
 stituted one district, which was entitled to send two Representatives to 
 Congress, one of whom was required to be a resident of the city and 
 the other of the county of Baltimore. Mr. Barney and Mr. McCreery 
 were the candidates from the city, and Mr. McCreery having received 
 the most votes held the seat. The seat was contested on the ground 
 that he was not a resident of the city. He had formerly resided in the 
 city of Baltimore, but some years previous to this election had removed 
 his family to his estate in the country. His family had been in the 
 habit of living on the estate in the summer and in Wa!^hington in the 
 winter. He himself had an office in Baltimore where he occasionally 
 slept, and had also a room reserved for him in the house of a friend. 
 For a few days before the election he had slept in Baltimore, one night 
 in his office. 
 
 The committee did not decide the question whether or not his legal 
 residence was in the city of Baltimore, but held that the law of Mary- 
 land, superadding the qualification of residence in a specified place to 
 those prescribed by the Constitution of the United States, was uncon- 
 stitutional, and that Mr. McCreery, having received the highest 
 number of legal votes and possessing all the qualifications prescribed 
 by the Constitution, was entitled to his seat. 
 
 This being the first occasion on which it was proposed in Congress 
 to declare a State law unconstitutional a very voluminous debate took 
 place. When it came to a decision of the question it appeared that a 
 large majority favored the right of Mr. McCreery to his seat, but 
 many were unwilling to vote explicitly that a State law was unconsti- 
 tutional, so that the final vote by which Mr. McCreery was confirmed 
 in his title to his seat by a vote of 89 to 18 was simply on the question 
 
TENTH COETGEESS. 57 
 
 of his title to the seat, expressly avoiding all decision of the grounds 
 of the title. 
 
 Against the report it was argued that the provision of the Constitu- 
 tion prescribing the qualifications for membership was negative in its 
 form. No person was to serve as a Representative who did not pos- 
 sess certain qualifications, but this did not forbid the requirement of 
 additional qualifications. Under the provision that all powers not 
 expressly delegated to the United States are reserved to the States 
 themselves, or to the people, the power to require these additional 
 qualifications was reserved to the States. If this power did not reside 
 in the States then the power to divide themselves into districts was 
 also wanting and the laws of most of the States must be held to be 
 unconstitutional and the election of most of the members invalid. 
 The proposition was characterized as an entering wedge, the final out- 
 come of which would be the overthrow of the sovereignty of the 
 States and the destruction of a republican form of government. It 
 was suggested as among the dangers to be feared, if no power existed 
 to require other qualifications than those prescribed by the Constitu- 
 tion, that the time might come when persons of color would be elected 
 to the House, a "monstrous and abominable conclusion." The pre- 
 vious case of Spaulding vs. Mead was explained not to involve the 
 setting aside of a State law, for in that case the execution of the law 
 had been prevented by an act of God. 
 
 In favor of the report it was urged that the enumeration by the Con- 
 stitution of certain qualifications excluded by implication all other 
 qualifications. If any such power as was claimed existed in the States 
 great inconvenience would result from lack of uniformity, and the 
 States would have the power practically to annul many provisions of 
 the Constitution. The powers not delegated to the United States are 
 reserved to the States or to the people. Powers originally residing in 
 the States are reserved to the States, those originally residing in the 
 people to the people. Congress was the creation of the people, not of 
 the States, and the States can have no powers in regard to its election 
 not expressly delegated by the Constitution. Any addition by the 
 States ta the constitutional qualifications would be an infringement on 
 the reserved right of the people to elect any person to Congress not 
 disqualified by the Constitution. The only power over the election of 
 Representatives which the people have not reserved is the power to 
 prescribe the time, place, and manner of the election, which is granted 
 to the State legislatures or to Congress by express delegation. 
 
 As above stated, Mr. McCreery was confirmed in his title to his seat 
 by a large majority, but an explicit decision of the constitutional ques- 
 tion was avoided. It seems probable, however, that a majority of the 
 House believed the law to be unconstitutional, but hesitated to declare 
 it so by the action of the House. (See Story, Commentaries on the 
 Constitution, sees. 625, 627, vol. 2, p. 101, and Kent's Commentaries, 
 vol. 1, p. 288, note.) On another occasion, in 1S56, it was decided by 
 an almost unanimous vote (126 to 5) that such a State law was uncon- 
 stitutional (Turney vs. Marshall and Fouke vs. Trumbull, Thirty-fourth 
 Congress, 1 Bart., 167. See, also, case of Wood vs. Peters, Forty- 
 eighth Congress). But for a recent case, in which the rule was reversed 
 and an elaborate presentation of all the precedents given, see the case 
 of Roberts, Fifty-sixth Congress. 
 
 [C. & H., 167-221.] 
 
58 digest of contested election cases. 
 
 (2) MoFakland. vs. Culpeppek. 
 
 Election officers not sworn. New election ordered. Testimony exparte 
 rejected. 
 
 There being no law of Congress directing the manner of taking testi- 
 mony in contested election cases (the act of 1797 was no longer in 
 force) much of the testimony presented had been taken exparte and 
 was rejected by the committee. From what remained it appeared that 
 the officers of election in three of the five counties of the district, 
 which gave a large majority for the sitting member, were not sworn. 
 There were some indications, but no legal proof, that the officers were 
 also not sworn in the remaining two counties, which gave a large 
 majority for the petitioner, but the committee did not consider this 
 question material, holding that the vote of two counties ought not to 
 decide the choice of five. The committee excluded the vote of the 
 three counties and recommended a new election-. The House con- 
 curred. Later in the session John Culpepper, having been reelected, 
 took his seat. 
 
 [C. &H., 221-224.] 
 
 (3) Ket. 
 
 InhaMtancy. Eligibility of a British pensio7ier. Decision in favor 
 of sitting mernher. 
 
 Mr. Key was a native of Maryland, where he and his wife held ances- 
 tral estates. In 1801 he became a resident of the District of Columbia, 
 where he fitted up a residence. In November, 1805, he purchased 
 1,000 acres of land in Montgomery County, Md. In the summer of 
 1806 he had a house suitable for a summer residence built on this 
 estate in Maryland, and on September 18, 1806, moved into it with 
 his wife and family, declaring his intention to make it his residence. 
 On October 6 he was elected to Congress from Maryland, and on 
 October 20 he returned with his family to the District of Columbia, 
 where he remained until July 20, 1807, when they returned to Mary- 
 land, remaining until October 22, and again retui'ning to the District 
 of Columbia. The house in which he lived in Mar }• land was suitable 
 only for a summer residence, and when he moved into it he left his 
 residence in the District of Columbia furnished in its usual style. 
 
 The committee reported that on this state of facts he was aii inhabi- 
 tant of the State at the time he was chosen, and was entitled to his seat. 
 
 During the discussion of the case the charge was made that Mr. Key 
 was a British pensioner. It was objected that this charge was not 
 among the specifications in the petition of contest, but Mr. Key 
 expressing a desire to have the question investigated it was held that 
 the question of notice could be waived, and the ease was recommitted 
 to the committee for investigation. 
 
 The committee reported that Mr. Key had been a member of the 
 British Army outside the limits of the United States during the Revo- 
 lution. In 1783 his regiment was disbanded and the officers put on 
 half pay. Mr. Key settled in Annapolis, and was elected to the gen- 
 eral assembly of Maryland in 1794. Before this election he sold his 
 half pay to his brother-in-law, who drew it until 1802, when he trans- 
 ferred it to Mr. Key in satisfaction for debt, but was permitted to 
 
TENTH CONGRESS. 59 
 
 draw it until his death in 1805. Mr. Key then drew a half-year's pay, 
 but in January, 1806, wrote to his agent in London directing him to 
 withdraw all his pretensions to half pay and rank in the British Army, 
 and in October, 1807, he made a formal resignation by a letter to the 
 British minister at Washington. It did not appear that he had ever 
 taken the oath of allegiance to the King of England, but that he had 
 taken the oaths required by the laws of Maryland of persons in the 
 public service of that State. The committee concluded that nothing 
 in these facts authorized them to alter the conclusion of their former 
 report. 
 In debate it was objected to the report that this decision would be a 
 
 f)recedent fixing the constitutional term of residence at two weeks or 
 ess, and that in the future, when the capital city should become 
 wealthy and populous, it might secure the election of any persons 
 whom it should choose to send for a few days to reside in any btate of 
 the Union. 
 
 On the other hand, it was contended that Mr. Key's residence was 
 very different from a transient residence. He had purchased an estate 
 and established a fixed residence, though he meant to reside during 
 t"he winter months in the District of Columbia, for the education of 
 his family and the convenience of his business. 
 
 A resolution confirming Mr. Key in his seat was passed by a vote of 
 57 to 52. 
 
 [C. & H., 224r-233.J 
 
60 DIGEST OP CONTESTED ELECTION CASES. 
 
 ELEVENTH CONGEESS, 1809-1811. 
 
 Committee on Elections. 
 
 Mr. FiNDLEY, Mr. Taylor, 
 
 Clay, Van Rensselaer, 
 
 Stukges, Garnett, 
 
 Mr. Troup. 
 
 (Mr. Findley served only during the lirst session.) 
 
 Cases. 
 
 (1) Charles Turner, jr., vs. William Baylies, Massachtisetts. 
 
 (3) Thomas Randolph vs. Jonathan Jennings, Indiana Territory. 
 
 (1) Turner vs. Baylies. 
 
 Ballots rejected hy State officers because of the omission of the Viord 
 '"'' junior. ^^ Seat given to petitioner. 
 
 According to the returns of the selectmen of the various towns, 
 Charles TurnQv, junior, esq., received 1,443 votes at the first election, 
 and Charles Turner, esq. , 430. A majority of all the votes cast, or 1,860 
 votes, was necessary to a choice at this election. The governor counted 
 the votes as given for different candidates and ordered a new election, 
 at which William Baylies, the sitting member, received a majority of 
 the votes. The election was contested on the ground that the votes for 
 Charles Turner, junior, esq., and Charles Turner, esq., were intended 
 to be cast for the same man and should be counted for him, which 
 would give him a majority on the first election. Testimonj' was offered 
 by petitioner to establish the fact that he was generally known by the 
 name Charles Turner, both with and without the addition ''junior," 
 and that there was no Charles Turner, senior, or any other Charles 
 Turner in the district and qualified to be a candidate for Congress. 
 This testimonj'^ had not been taken under any act of Congress, there 
 being none in force at the time, but it had been taken after due and 
 reasonable notice to the sitting member, who had refused to attend, 
 regarding the proceeding as illegal. The sitting member requested 
 that the case be postponed until the next session of Congress, that he 
 might have time to prepare his case, and the committee recommended 
 the postponement, but the House recommitted the report. The com- 
 mittee made a second report, outlining the testimony, which sustained 
 the claims made by the petitioner and recommending" that the petitioner 
 be declared entitled to the seat. The House agreed to the report by a 
 vote of 62 to 41. 
 
 The debate was chiefly on the question whether or not testimony 
 taken ex pa/rte, but on reasonable notice, in the absence of any statu- 
 tory method of taking testimony, could be considered. 
 
 [C. & H., 234-239. J 
 
ELEVENTH CONGKBSS. 61 
 
 (2) Randolph vs. Jennings. 
 
 Election not hdd hy OMthority of law, and irregularities complai/ned 
 of. The committee recommended that the seat he declared vacant, hut 
 no final decision was reached hy the Souse. 
 
 After the State of Ohio had been separated from the Northwest 
 Territory the remainder, under the name of Indiana Territory, had a 
 governor, judicial oflScers, and a general assembly of eight members. 
 On October 26, 1808, the governor lawfully dissolved the legislature. 
 On February 3, 1809, Congress enacted a law dividing the Territory 
 into Indiana and Illinois. The act contained a saving clause, provid- 
 ing that nothing herein contained should be construed to affect the 
 government then in force in the Indiana Territory. On February 27, 
 1809, a law was passed authorizing the general assembly of Indiana to 
 apportion members to a new house of representatives, to consist of 
 not less than nine nor more than twelve members. A Delegate to 
 Congress was to be elected at the same election with the new legisla- 
 ture. 
 
 There being no legislature in existence, the governor issued his 
 proclamation on April 4, 1809, for the election of an additional num- 
 ber of members of the legislature, sufficient to supply the place of 
 those struck off by the division of the Territory. This legislature 
 was elected and met, but did nothing but provide for the election of 
 an additional member to make up the number of nine required to organ- 
 ize under the law of Congress. Mr. Jennings was elected Delegate to 
 Congress at the same election. 
 
 The election was contested by Thomas Randolph, who did not claim 
 the election for himself, he having received only a minority of the 
 votes, but asked that it be set aside on the ground of irregularities. 
 The return from one of the precincts, .which gave a majority for the 
 sitting member larger than his whole majority in the Territory, was 
 not signed by the poll keepers, and in one county the sheriff had failed 
 to appoint deputies to hold the election in two precincts in which the 
 petitioner claimed he would have received votes enough to give him a 
 majority in the Territory. 
 
 The petitioner did not press the question of lack of authority to 
 order the election, but the committee decided it on that ground alone. 
 They found that when the law dividing the Territory was passed there 
 was no legislature in existence, and so the saving clause could not 
 affect it. The law providing for the election of a new legislature and 
 Delegate to Congress required that this election was to be ordered by 
 the old Territorial legislature. This legislature did not exisit and could 
 not be called into existence by the governor's proclamation, hence the 
 law was fatally defective, and no legal election could be held in Indiana 
 Territory until Congress passed a law curing the defect. Such a law 
 had been passed at the present session. 
 
 The report of the committee was approved by the Committee of the 
 Whole, but rejected by the House, after debate, by a vote of 30 to 83. 
 A motion to declare Mr. Jennings entitled to the seat was proposed 
 and withdrawn, but, no further action being taken, he still continued 
 to hold the seat. 
 
 [C. & H., 240-245.] 
 
62 DIGEST OF CONTESTED ELECTION CASES. 
 
 TWELFTH CONGRESS, 1811-1813. 
 
 dommittee on Elections. 
 
 Mr. FiNDLEY, Mr. Pleasants. 
 
 Stueges, Emott. 
 
 Macon, Fisk. 
 
 Mr. Tkoup. 
 
 (1) John Taliafeeeo va. John P. Hungeefoed, Virginia. 
 
 Illegal votes. Land lists as evidence. Seat given to jpetitioner. 
 
 The sitting member received a majority of 6 votes on tlie returns, 
 but an examination of the land lists showed a large number of votes 
 cast for both candidates by persons whose names did not appear on 
 the land lists. If all these votes should be deducted petitioner would 
 have a majority of 121 votes. The committee held that the land lists 
 were conclusive only in the absence of all other testimony, and that it 
 was competent for the parties to establish or overthrow the right 
 of persons to vote by other evidence that they were or were not 
 freeholders. 
 
 The petitioner had, on May 7 and 28, given the sitting member notice 
 of his intention to contest the election, and on September 27 given 
 notice to take testimony on October 10, 17, and 22. The testimony 
 was taken, but the sitting member refused to attend. He asked for 
 further time to take testimony, which request was opposed by the 
 petitioner on the ground that he had already had a reasonable time. 
 The committee held that he could not have been expected to procure 
 his testimony before the petitioner had taken his, and, as the time then 
 remaining before the session of Congress was insufficient, recom- 
 mended the postponement. The House refused to grant the i-equest, 
 and, by a vote of 66 to 19, gave the seat to the petitioner. 
 
 [C. &H., 246-249.] 
 
Tlli.±4Tl<;ji;jMTH CONGRESS. 63 
 
 THIRTEENTH CONGRESS, 1813-1815. 
 
 Cmnmittee on Elections. 
 
 Mr. FiSK, of Vermont, Mr. Condiot, 
 
 BuBWELL, Avery, 
 
 Davenport, Pickering, 
 
 Mr. Anderson. 
 
 Cases. 
 
 (1) John Taliaferro vs. John P. Hungerford, Virginia. 
 
 (2) Burwell Bassett vs. Thomas M. Bayley, Virginia. 
 
 (3) William Kelly vs. Thomas K. Harris, Tennessee. 
 
 {4S Isaac Williams, jr., vs. John M. Bowers, JVew York. 
 (5) Blydenburg and Jay vs. Sage and Lefferts, New York. 
 
 (1) Taliaferro vs. Hungerford. 
 
 Illegal votes amd irregularities. Gommittee reported the election void, 
 hut the House retained the sitting member in his seat.. 
 
 The sitting member was returned as having received a majority of 
 24 votes. The election was contested on the grounds that more votes 
 were cast for sitting member than for petitioner by persons not free- 
 holders, and that the election in several counties was void for irregu- 
 larities. The petitioner, in the first instance, seems to have pressed 
 only the latter claim, and the first report of the committee discussed it 
 alone. The law provided that the clerks of the poll should enter in 
 distinct columns, under the name of each candidate, the names of the 
 persons voting for him. In some counties the names were all written 
 in one column, and numbers or marks placed under the candidates' 
 names to indicate the votes. In two counties the Christian names of the 
 voters (or the candidates — the I'eport is ambiguous) were not entered, 
 but only the initials. In four counties there was no certificate that 
 any oath had been administered to the clerks of the poll. 
 
 The committee were of the opinion that such violations of positive 
 law in regard to the manner of holding elections should be as fatal as 
 violations of the law in regard to time or place, and recommended that 
 the election be set aside. The House, by a vote of 78 to 82, refused 
 to concur, and recommitted the case. 
 
 The committee then submitted a second report, dealing with the 
 question of illegal votes. The land lists were held to be prima facie 
 evidence of the qualifications of voters. If all the votes cast for both 
 candidates by persons whose names did not appear on the land lists 
 were deducted, the petitioner would have a majority of 17 votes. But 
 a number of the votes above deducted were shown hy other evidence 
 to be legal votes. Eliminating these, the sitting member had a majority 
 of 11 votes. But of these votes, the proof in regard to some oi them 
 only went to show that the voters ha^d possession of land for the required 
 six months before election, but did not show whether the freehold 
 title was acquired six months before or not. Again, deducting these 
 votes would show a majority of 4 for the petitioner. The com- 
 
64 DIGEST OF CONTESTED ELECTION CASES. 
 
 mittee socms to have favored the second of the above statements, and 
 reported that "the petitioner has not supported his petition." The 
 case was postponed until the next session of Congress, when the com- 
 mittee made a third i-eport, stating that by testimony taken in the 
 meantime the sitting member had established the qualifications of 11 
 more voters who voted for him, which, with the 11 majority reported 
 for him at the last session, gave him a majority of 22 votes. But the 
 committee were of opinion that the election ought to be held void on 
 account of the irregularities detailed in the first report. The House 
 refused to concur, and confirmed the right of the sitting member to 
 his seat. So the House seems to have decided that the irregularities 
 were not fatal; that other evidence might be received to establish the 
 light to vote of persons not on the land lists, and that this evidence 
 need establish no more than the possession of land the required six 
 months, with a freehold title at the time of the election. 
 [C. & H., 250-254.] 
 
 (2) Bassett vs. Baylet. 
 
 Right of the sheriff to continue the poll heyoiid fh<' -first day, and 
 illegal votes. Sitting inemheT retained the seat. 
 
 The sitting member was returned as receiving a majority of 57 votes. 
 The election was contested on the ground of illegal votes and an illegal 
 adjournment by the sherijff of the poll of one county. 
 
 The law provided that the sheriff could adjourn the poll in case of 
 rain, rise of water courses, or the attendance of more voters than could 
 be polled in one day. The petitioner contended that if there was no 
 proof of the occurrence of any of these contingencies an adjournment 
 should be presumed to be illegal, but the committee unanimously held 
 that the action of the sheriff' was prima facie legal. 
 
 The taking of testimony having been interfered with by the presence 
 of the enemy's cruisers, the parties were given five weeks to procure 
 testimony. When it had been taken, the committee reported that the 
 evidence showed that there had been no rain or rise of water courses 
 in the county when the election was adjourned; that the day was a 
 fine one, and the voting rapid and continuous during the first part of 
 the day, but very slow toward the last; that during the last half hour 
 only 2 votes were polled, and at sunset only -t persons were present 
 who had not voted, 2 of whom were deputy sherifl's who had been in 
 attendance all day. The committee held "that the question whether 
 more voters appear than can be polled in one day is a mere question 
 of fact, admitting of no discretion in the officer, and in this case the 
 contingency provided for in the law not having in fact occurred, the 
 adjournment was illegal, and all votes taken oii the second and third 
 days should be excluded. 
 
 The report was recommitted, and the second report of the com- 
 mittee stated that (il \otes of unqualified persons should be deducted 
 from the poll of sitting member and 63 from petitioner, and that 2 
 votes tendered for petitioner l)y qualified voters and rejected bv the 
 officers of election should be counted for him. This would leaAe a 
 majority of 51 for sitting member. At the illegally adjourned poll 
 53_votes were given for sitting member and 1 for petitioner after the 
 adjournment. Deducting these, the sitting member was still entitled 
 
THIRTEENTH 0ONGBB88. 65 
 
 to his seat by a majority of 6 votes. The Plouse concurred, after 
 debate, and the title of the sitting member was confirmed. 
 [C. & H., 254-259.] 
 
 (3) Kelly vs. Haeeis. 
 
 Incorrect returns and illegal votes. Sitting member retained the seat. 
 
 The sitting member received a majority of 1 vote on the returns as 
 counted by the governor. The law of Tennessee provided that the 
 election inspectors should make two copies of their returns and for- 
 ward one to the governor and file the other with the clerk of the 
 county court. In one county the return forwarded to the governor 
 contained 2 more votes for the sitting member than that filed with the 
 county clerk, and on the return counted by the governor it appeared 
 by adding together the votes credited to all the candidates that there 
 were 2 more than the total number certified to have been given. 
 
 The sitting member had not been notified of the contest until after 
 his arrival in Washington, and asked that time be allowed to take tes- 
 timony. This was granted. At the next session it appeared that Mr. 
 Kelly had declined to pros,ecute the case further. The general opinion 
 being that it should not be allowed to abate for want of prosecution, 
 the report of the previous session was recommitted to the committee. 
 They reported that the correction of the incorrect return described in 
 the first report would give the seat to the petitioner by a majority of 1, 
 but that the sitting member, besides some testimony tending to indi- 
 cate a false return in favor of the petitioner in one county, had proved 
 2 votes illegal. One was cast by a minor, the other by a person who 
 had not resided six months in the county where he voted. The law 
 provided that every freeman, etc. , "possessing a freehold in the county 
 wherein he may vote, and being an inhabitant of this State, and every 
 freeman being an inhabitant of any one county in the State six months 
 immediately preceding the day of election " may vote. This was held 
 to mean that persons voting under the second qualification must vote 
 in the county where they resided, and nowhere else. 
 
 These 2 illegal votes counteracted the 2 votes wrongly returned for 
 sitting member, and left him still a majority of 1 vote. The House 
 confirmed his title. 
 
 [C. &H., 260-262.] 
 
 (4) Williams vs. Bowers. 
 
 The word ^^ junior.^'' Petitioner given the seat. 
 
 John M. Bowers was returned as having received 4,287 votes, John 
 M. Bowey 1, Isaac Williams, junior, 4,129, Isaac Williams 434, and 
 other persons 17. The committee reported that the votes for Isaac 
 Williams were all from four towns, in which no votes appear to have 
 been cast for Isaac Williams, junior; that there were three persons by 
 the name of Isaac Williams in the district, but the only one who was 
 a candidate for Congress was the one known by the addition of "junior," 
 and that it seemed probable that the votes given for John Bowers and 
 John M. Bowey were intended for John M. Bowers, and those for 
 Isaac Williams for Isaac Williams, junior, which would give petitioner 
 a majority of 205 votes. But the committee were of opinion that more 
 
 H. Doc. 510 5 
 
66 DIGEST OF CONTESTED ELECTION CASES. 
 
 testimony was needed, and recommended a postponement to the next 
 session of Congress. This being agreed to, the committee, at the next 
 session, reported that by evidence talten during the recess it appeared 
 that the votes in three of the towns returned for Isaac Williams were 
 in fact cast for Isaac Williams, junior, and wrongly returned by mistake 
 of the returning officers. This would give Mr. Williams a majority 
 of 164. 
 
 The House unanimously voted Mr. Williams entitled to the seat. 
 
 [C. &H., 263-264.] 
 
 (6) Blydenbukg and Jay vs. Sage and Leffekts. 
 
 The election of Ebenezer Sage and John Lefferts, of New York, was 
 contested by a petition from Benjamin B. Blydentaurg and Peter A. 
 Jay, on what grounds it does not appear. The committee reported 
 that further time would be necessary to come to a just decision, and it 
 was postponed to the next session of Congress, when nothing appears 
 to have been done with it. 
 
FOURTEENTH CONGKEBS. 67 
 
 FOURTEENTH CONGRESS, 1815-1817. 
 
 Com/inittee on Elections, first session. 
 
 Mr. Taylor, of New York. Mr. Vose, 
 PiFER, Barbour, 
 
 Sharpe, Law, 
 
 Mr. Pickering. 
 
 Oasen. 
 
 (1) Westel Willou^hby vs. Wm. S. Smith, Rmo Tori. 
 
 (2) Robert Porterlield vs. William McCoy, Virginia. 
 
 (3) Erastus Root vs. John Adams, New York. 
 
 Committee on Idections, second session. 
 
 Mr. Taylor, of New York. Mr. Vose, 
 Pickering, Law, 
 
 Kerr, Thomas, 
 
 Mr. Hahn. 
 
 Case. 
 
 (4) Rufus Easton vs. John Scott, Missouri Territory. 
 
 (1) WiLLOUGHBY VS. SmITH. 
 
 The word '''■ jwnior.^'' Seat given to petitioner. 
 
 The returns showed 2,510 votes for William S. Smith, 2,466 for 
 Westel Willoughby, junior, 309 for Westel Willoughby, and 7 scatter- 
 ing. The committee reported that the evidence showed that 299 of 
 the 309 votes returned for Westel Willoughby were cast for Westel 
 Willoughby, junior, but the "junior" was omitted from the returns 
 by mistake of the returning officers. The House gave the seat to Mr. 
 Willoughby.' 
 
 [C. & H., 265, 266. J 
 
 (2) Porterfield vs. McCoy. 
 
 Illegal votes and irregularities. Sitting 'meniher retained tlie seat. 
 
 The sitting member had a majority of 53 votes, after counting for 
 the petitioner a vote cast for him but counted for the sitting meijiber 
 by mistake, and for the sitting member 3 votes offered for him and 
 illegally rejected by the election officers. The election was contested 
 on the grounds of illegal votes and irregularities. The irregularities 
 were: In one county the poll clerks were not sworn until after the 
 election, and in another the names of voters were set down in a single 
 column, and the votes carried forward and marked under the names of 
 
 ' Mr. Smith did not appear nor claim the seat, and it was given to Mr. Willoughby 
 on the ninth day of the session. (See report in Hammond vs. Herrick, Fifteenth 
 Congress. 0. & H., 293). 
 
68 DIGEST OF CONTESTED ELECTION CASES. 
 
 the candidates, instead of the names being in separate columns as the 
 law required. The committee held that these irregularities related 
 more to form than substance, and as there was no -claim that the result 
 had been affected, disregarded them. 
 
 There had been an agreement between the candidates as to what 
 classes of votes were to be admitted, but the committee held that the 
 agreement of parties could not enlarge nor diminish the rights of voters, 
 and decided the votes legal or illegal according to the Virginia law. 
 They held that votes must be given in the county where the land of 
 the voter was situated, and that all votes given by virtue of title bonds 
 not conveying a legal freehold estate were illegal. The land lists were 
 held to be satisfactory evidence of the qualifications of voters unless 
 disproved by other evidence. The affidavit of a voter might be read 
 in evidence to prove his vote. 
 
 Applying these rules to the testimony, 171 votes for petitioner and 
 149 for sitting member were illegal, leaving a majority of 75 for the 
 sitting member. The evidence in the case was not taken by petitioner 
 until four months after he had notified the sitting member of his inten- 
 tion to contest the election, and it was objected to by the sitting mem- 
 ber on the grounds that it was not taken within the period prescribed 
 by the Virginia law for contested elections for members of the general 
 assembly, and that the delay of four months was unreasonable. This 
 was overruled by the committee. 
 
 The House confirmed the title of Mr. McCoy without division. 
 
 [C.&H., 267-270.] 
 
 (3) Root vs. Adams. 
 
 Mistake in returns. Seat given to petitioner. 
 
 The deputy clerk of one of the counties, in making out a transcript 
 of the returns to be forwarded to the secretary of state, wrote the 
 name Root by mistake as Bott. On proof of the error the votes were 
 counted by the committee for Mr. Root, and it appearing that he had 
 then a majority of all the votes he was given his seat. 
 
 [C. &H., 271.] 
 
 (4) Easton vs. Scott. 
 
 Prima fade right, irregularities, and illegal votes. The committee 
 recoil I )ii.ended that the petitioner he given the seat, Init th< House declared 
 it vacant. 
 
 According to the returns as counted by the governor, the sitting 
 member had a plurality of 15 votes, but the petitioner contended that 
 he had a majority of 15 votes on the legal returns, counting those not 
 returned within the time prescribed by law, and that on all the abstracts 
 of votes, legal and illegal, he had a majority of 7 votes, not counting a 
 certain paper from the precinct of Cote Sans Dessein. He also 
 charged irregularities and illegal voting. 
 
 The committee decided that they would not inquire into the ques- 
 tion of the qualifications of voters, for the election being by ballot the 
 right of the voter to secrecy nuist be preserved; he could not be com- 
 pelled to disclose for whom he voted, and without such disclosure it 
 would be vain to inquire into his qualifications for the purpose of 
 purging the poll. The decision of the judges of election upon the qual- 
 
I'OUBTEENTH CONGRESS. 69 
 
 ifications of voters must be considered final, and if thej^ have exercised 
 their authority arbitrarily or corruptly the remedy must be in their 
 punishment under the laws of the Territory. 
 
 The alleged return from the precinct of Cote Sans Dessein was 
 unanimously rejected by the committee on the ground (1) that the 
 election was held viva voce; (2) but two persons acted as judges (the 
 law requiring three), and neither of them was sworn; (3) but one per- 
 son acted as clerk, and he was not sworn; and (4) the votes were 
 rejected by the county returning board and not included in the 
 abstract of votes sent to the governor; and the paper which was sent 
 to the governor was sent him irregularly, and appeared on its face to 
 be defective in many important particulars. 
 
 This precinct being rejected, it appeared that the petitioner had a 
 majority of 7 votes on the returns which the governor properly should 
 have counted, and he asked accordinglj' to be admitted forthwith to 
 the seat, so that if the election was to be contested on its merits he 
 might hold his proper position as sitting member pending the contest. 
 This was refused by the committee, and they proceeded to investigate 
 the main question. Several precincts were objected to by the sitting 
 member on various grounds, all of which were overruled either as not 
 being supported by evidence or as not being sufficient to cause the rejec- 
 tion of the votes. Various charges of irregularities brought by the 
 petitioner were also overruled as unsupported or insufficient. The 
 sitting member then asked for time to procure copies of the poll books 
 in a number of townships which he alleged were irregular, but the 
 application was refused on the ground that he had already had suf- 
 ficient time to procure them if he had desired it. Thereupon it was 
 contended by the sitting member that by rejecting the vote in the 
 township of C6te Sans Dessein the candidate would become entitled to 
 a seat wno had not a majority of votes in his favor, and therefore the 
 election should be set aside and a new one ordered. The. committee 
 did not concur in the opinion, and submitted resolutions declaring 
 petitioner entitled to the seat. 
 
 The report was opposed on the ground that the committee had de- 
 clined to inquire into the qualifications of voters, and on motion of 
 Mr. Webster it was recommitted to the committee with instructions 
 "to receive evidence that persons voting for either candidate were not 
 entitled to vote on the election." 
 
 The committee made a second report, stating that the notices to take 
 testimony in regard to the qualifications of voters had not been spe- 
 cific, neither the names of the voters objected to nor the particular 
 qualifications alleged to be lacking having been given. Such testi- 
 mony as had been taken must for this reason be excluded, and it being 
 practically impossible, on account of the remoteness and extent of the 
 territory, to procure evidence in time to be of any service, the com- 
 mittee asked to "be discharged from further investigation into the 
 qualifications of the said electors." The House substituted a resolu- 
 tion declaring the election illegal and the seat vacant. 
 
 [C. and H., 272-286.] 
 
70 DIGEST OF CONTESTED ELECTION CASES. 
 
 FIFTEENTH CONGRESS, 1817-1819. 
 
 Gommvittee on Elections. 
 
 Mr. Taylor, of New York, Mr. Ross, 
 
 Taylor, Whitman, 
 
 Merrill, Strong, 
 
 Mr. Shaw. 
 
 (1) Charles Hammond vs. Samuel Herrick, Ohio. 
 
 (2) Elias Earle, Souih Carolina. 
 
 (3) George Mumford, North Carolina. 
 
 (1) Hammond vs. Herrick. 
 
 Whether a Representative-elect., holding an office under the United 
 States after his election., and after the Ji-ih of March on which the pre- 
 vious Congress expired, vacated his seat. Sitting meiiiber retahied the 
 
 The sitting member was elected to the Fifteenth Congress in Octo- 
 ber, 1816, holding at that time the office of district attorney of the 
 United States. The Fourteenth Congress expired March 4, 1S17. Mr. 
 Herrick continued to hold his office as district attorney until November 
 29, 1817, when he resigned it, and on December 1 took his seat. A 
 memorial was presented from Charles Hammond, contesting the elec- 
 tion on the ground that the Representatives-elect to the Fifteenth 
 Congress became members on March 4, 1817, the dav the preceding 
 Congress expired, and that the sitting member, having held an incom- 
 patible office after that date, had vacated his seat. A resolution was 
 presented, and adopted by the casting vote of the Speaker, directing 
 the Committee on Elections "to inquire and report what persons, 
 elected to serve in the House of Representatives, have accepted, or 
 held, offices under the Government of the United States since the 1th 
 day of March, 1817; and how far their right to a seat in this House is 
 affected by it." 
 
 Two days afterwards (December 12, 1817), Mr. Taylor, the chairman 
 of the Committee on Elections, reported a resolution requesting the 
 President to communicate to the House the names of any Representa- 
 tives in the list annexed (a list of the members of the Fifteenth Con- 
 gress) who had held any office under the United States since March 4, 
 1817, designating the offices, the time of appointment and acceptance, 
 "whether the same are now held, and, if not, when the same were sev- 
 erally resigned." 
 
 The resolution having been concurred in by the House, the Presi- 
 dent, on December 26, sent to the House a message containing a list 
 of nine members who had held various offices, all of which had been 
 resigned before the meeting of the Fifteenth Congress, on December 
 1, 1817, except that of Mr. Mumford (see case of George Mumford, 
 fost). This message was referred to the Committee on Elections, 
 which, on January 5, 1818, presented an elaborate report sustaining 
 the right of Mr. Herrick to his seat. 
 
FIFTEENTH CONGRESS. 7l 
 
 The facts in the case were reported as above stated, showing that 
 Mr. Herrick had continued in office more than nine months after March 
 4, 1817, and two months after (on September 30, 1S17) he had received 
 the certificate of his election. 
 
 The sixth section of the first article of the Constitution provides that "no person 
 holding any office under the United States shall be a member of either House during 
 his continuance in office.". The incompatibility is not limited to exercising an office, 
 and, at the same time, being a member of either House of Congress; but it is equally 
 extended to the case of holding; that is, having, keeping, possessing, or retaining an 
 office under such circumstances. If the membership of Mr. Herrick commenced 
 either on the 4th of March, or the 30th of September, 1817, he has vacated that 
 membership by holding an office incompatible therewitli. 
 
 The report then discusses the cases of Van Ness (Fourth Congress) 
 and Key (Tenth Congress) and several cases in the House of Commons. 
 The American rule, difl:ering from the English, is found to be that a 
 member elect may decline his election at any time before taking his 
 seat. 
 
 Our rule in this particular is * * * better, for it makes our theory conform to 
 what is fact in both countries, that the act of becoming in reality a member of the 
 House depends wholly upon the will of the person elected and returned. Election 
 does not of itself constitute membership, although the period may have arrived at 
 which the Congressional term commences. This is evident from the consideration 
 that all the votes given at an election may not be received by the returning officer in 
 season to be counted, whereby a person not elected may be returned and take the 
 seat of one who was duly elected. Neither does a return necessarily confer member- 
 ship; for if he in whose favor it be made should be prevented taking a seat at the 
 organization of a House of Representatives, he might find upon presenting himself to 
 qualify that his return had been superseded by the admission of another person Into 
 the seat for which he was returned. 
 
 This is illustrated by the cases of Spaulding vs. Mead and Willoughby 
 vs. Smith, and the report proceeds: 
 
 Neither do election and return create membership. These acts are nothing more 
 than the designation of the individual, who, when called upon in the manner pre- 
 scribed by law, shall be authorized to claim title to a seat. This designation, how- 
 ever, does not confer a perfect right; for a person may be selected by the people 
 destitute of certain qualifications, without which he can not be admitted to a seat. 
 He is, nevertheless, so far the Representative of those who elect him, that no vacancy 
 can exist until his disqualification be adjudged by the House, yet, it would be easy 
 to state cases where he would not be permitted for a moment to occupy a seat, not- 
 withstanding the regularity of his election and return. To no practical purpose 
 could he ever have been a member. So, also, if a person duly qualified be elected 
 and returned, and die before the organization of a House of Representatives, we do 
 not think he could be said to have been a member of that body, which had no exist- 
 ence until after his death. We say which had no existence; for we consider that 
 conceit altogether fanciful which represents one Congress succeeding to another as 
 members of the same corporation. It has no foundation, either in fact or in the 
 theory of our Government. Each House of Representatives is a distinct legislative 
 body, having no connection with any preceding one. It commences its existence 
 unrestrained by any rules or regulations for the conducting of business, which were 
 established by former Houses, and which were binding upon them. It prescribes 
 its own course of proceeding, elects its officers, and designates their duties. Even 
 joint rules for the government of both Houses of Congress are not binding upon a 
 new House of Representatives, unless expressly established by it. Although the 
 Fourteenth Congress had never assembled, the Fifteenth would have met, under the 
 Constitution, clothed with every legislative power as amply as it was enjoyed by the 
 Thirteenth. The Constitution does not define the time for which Representatives 
 shall be chosen. It is satisfied provided the choice take place at any time in every 
 second year. The rest is left to the discretion of each State. 
 
 The privileges of exemption from arrest and of franking letters 
 granted — the first by the Constitution and the second by law — to Rep- 
 
72 DIGEST OF CONTESTED ELECTION CASES. 
 
 resentatives before a meeting of the House and aftei- its adjournment, 
 furnish no argument in favor of their membership at such times, for 
 such a construction might make the memi)crs of one Congi-ess continue 
 ill office not only after the Congress had expired, but also after the 
 next Congress was actuallj' in session. 
 
 In regard to the danger ajjprehended from J'^.xecutive influence in the concerns of 
 legislation, we might rest satisf.ed with the remark that the business ol forming a 
 Constitution is not confided to us. Ours is a ruore humble duty; it is to expound the 
 text by a fair interpretation. AVe ca.. neithiT add nor diminish. The object of our 
 inquiry is not M'hat ought to be, but what is. 
 
 Whoever looks into the Constitution will find provisions to guard the entrance of 
 the legislative hall against those whose personal and immediate interest would be 
 advanced by perpetuating offices and increasing salaries, l)ut he will find none for 
 the purpose of excluding the influence of Executive patronage. The framers of the 
 Constitution either did not apprehend danger from that source, or they thought it 
 impracticable to prevent it without hazarding still greater mischief. The great 
 offices of the Union * * * are left as open to the members of this House aif to 
 others, and they can only be obtained through Executive favor. Nay, laws may be 
 passed on the last day of a Congress, creating offices and fixing their salaries, and, 
 on the next day, the members by whose votes they were created may be appointed 
 to fill them. The only antidote provided against an abuse of this per\'ading influ- 
 ence is the elective franchise. * * * if this remedy fail it will be vain to look 
 for another. * * * This is the only constitutional answer we can give to the 
 suggestion of possible danger from Executive infiuence. 
 
 In fine, we have examined the memorial of Mr. Hammond with deUberate atten- 
 tion, and are of opinion that Mr. Herrick has not rendered himself incapable of 
 being a member of this House by reason of having held the office of attorney of the 
 United States after the 4th of March and until the 29th of November last. 
 
 On account of the importance of this case in thus settling for the 
 first time an important question of constitutional interpretation, it has 
 seemed proper to quote thus fully from the report. 
 
 The memorial of Mr. Hammond, subjoined to the report, contains 
 the arguments which maj^ be inferred from the answers to them con- 
 tained in the report. He contended that the Congress of the United 
 States is a political institution of continual duration. The House of 
 Representatives, one branch of the Congress, is disorganized every 
 two years, but the other branches are in full organization, and the 
 members of the representative branch are in existence, readj- to be 
 organized if need be. All the rights and privileges of their station — 
 exemption from ari'est, the franking privilege, and exemption from 
 militia service — attach to the members elect the moment their tenn 
 commences. Either Mr. Herrick was a member on March 4, 1817, or 
 he was not. If he was, he was disqualified; and if he was not, and had 
 died before the meeting of Congress, it is difficult to see how his death 
 could have created a vacancy in a body of which he had never been a 
 member. But unless it did create a vacancj-, no other election could 
 be held for two years under the laws of Ohio. This shows the unten- 
 able character of the position that membership does not comrnence 
 until the member has qualified by taking the oath. The purpose of 
 the Constitution is plain; it is "to close the doors of the legislature 
 against undue Executive influence. " 
 
 The answer of Mr. Herrick and argument of his attorney presented 
 much the same arguments used by the committee. Mr. Herrick con- 
 tended that the election, return, and qualification by taking the oath 
 were all essential to making one a member, and until the last was com- 
 pleted he could not be considered a member. Numerous quotations 
 from the Constitution were given to show that the word "Representa- 
 tive " is uniformly used when a person not yet qualified is meant, the 
 
FIFTEENTH CONGRESS. 73 
 
 word "member" never, unless the context shows that he must be a 
 fully qualified member. (The memorial and answer will be found 
 mxjre fully outlined in Paine on Elections, § 161, Note.) 
 
 The report was discussed for two days in Committee of the Whole 
 House, and on motion of Mr. Adams, of Massachusetts, the committee 
 by a vote of 67 to 66 nonconcurred in the report of the Committee on 
 Elections. In the House, by a yea-and-nay vote of 73 to 77, the 
 recommendation of the Committee of the Whole was disagreed to, and 
 by 11 vote of 77 to 70, the resolution proposed by the Committee on 
 Elections was passed: ^ 
 
 [C. &H., 286-314.] 
 
 (2) Eaele. 
 
 Same /ni<u<' and decision ai^ in iiext preceding case. 
 
 Mr. Earle held the office of postmaster at Centerville, S. C. Soon 
 after his election to the Fifteenth Congress he sent his resignation to 
 the Postmaster-General and his successor was appointed, but the latter 
 having failed to qualify, Mr. Earle remained in charge of the office 
 until June 12, 1817, when another successor was appointed. The com- 
 mittee reported these facts, and a resolution declaring the sitting 
 member entitled to the seat, which was passed by the House at the 
 same time as that in the case of Mumford. 
 
 [C. & H., 314, 315.] 
 
 (3) MUMFOED. 
 
 If an: office has expired l)y tlie completion of its duties it need not he 
 formally resigned. Sitting member retained the seat. 
 
 Mr. Mumford had held the office of principal assessor of direct taxes 
 in the Tenth collection district of North Carolina, under the act of 
 July 22, 1813, and had never resigned the office. He was elected to 
 Congress in August, 1817, and on December 1, 1817, qualified as a 
 member of the House. The Committee on Elections, to whom the case 
 was referred among others by the reference to them of the President's 
 message on the subject, reported that if the act of 1813 under which 
 Mr. Mumford was appointed had neither expired nor been repealed, 
 Mr. Mumford was still in office and could not rightfully be a member 
 of the House. This act, when passed, was prospective and without 
 limitation. No law then existed for laying a direct tax, but as Con- 
 gress intended doing so, it provided, by this law, for the officers and 
 machinery which would be necessary to collect it. The act approved 
 January 9, 1815, by which the direct tax was levied, repealed all of 
 the former act except the portions providing for collection districts, 
 internal duties, and the appointment of assessors. These provisions 
 were to remain in force only for the purposes of the last-mentioned 
 act, and therefore were limited in duration to its duration. On March 
 5, 1816, it was enacted that the direct tax should be reduced from six 
 millions to three, and should continue for only one year. The provi- 
 
 1 The House refused to excuse those members from voting whose own cases would 
 be affected by the decision of this one, and in subsequent Congresses members 
 opposed to the doctrine of this case attacked it as a precedent, on the ground that the 
 resolutions were carried by a less majority than the number of those voting whose 
 cases were affected by the decision. 
 
74 DIGEST OF CONTESTED ELECTION CASES. 
 
 sions of the previous act were made to apply to this, and continue in 
 force for its purposes. The whole direct tax system, and all the 
 machinery created for its collection, was thus to go out of existence 
 when the taxes for the year 1816-17 had been collected. From a 
 certificate of the Commissioner of Internal Revenue appended to the 
 report (not printed in C. & H., see original report), it appeared that 
 the tax in Mr. Mumford's district had all been collected and accounted 
 for previous to December 1, 1817, and that on or after that date no 
 official duty had been performed nor remained to be performed by 
 Mr. Mumford. From Mr. Mumford's own statement it appeared that 
 he had spent the summer before taking his seat in New Hampshire, 
 remote from the district in which the duties of his coUectorship had 
 been exercised. The committee were of the opinion that his office 
 had thus expired before he had taken a seat in the House, and pre- 
 sented a resolution declaring him entitled to the seat. The report, 
 with a communication from Mr. Mumford, was referred to the same 
 Committee of the Whole House to which had been committed the 
 cases of Herrick and Earle. The committee agreed to the resolutions of 
 the Committee on Elections in the cases of Earle and Mumford, and 
 they were passed by the House. 
 
 The communication of the sitting member, in addition to the points 
 stated by the committee, argued that a formal resignation of his office 
 would not have been necessary, even if it had still continued to exist. 
 He states the true doctrine to be that if a person holding an office is 
 appointed to an incompatible one under a different authority, it is his 
 duty to resign the former office, that notice may be taken of the vacancy; 
 but if he is appointed to a new and incompatible office under the same 
 authority, the acceptance of the second office, by qualification and 
 entrance upon its duties, is a vacation of the former office; notice is 
 presumed, and a formal resignation is merely a matter of courtesy. 
 The committee apparently did not assent to this, doctrine, but it is 
 approved by Judge McCrary in his treatise on elections (sec. 243), and 
 a similar doctrine was approved by the committee and House in the 
 Thirty-eighth Congress. (See report of Mr. Dawes on the military 
 appointment of Hon. F. P. Blair, jr., found in volume S, McKee's com- 
 pilation, and curiously omitted from First and Second Bartlett.) 
 
 [C. &H., 316-327.] 
 
 The cases of the other members of the Fifteenth Congress mentioned 
 in the President's message all corresponded to the cases of Herrick and 
 Earle, apd nothing further seems to have been done about them. 
 
SIXTEENTH CONGRESS. 75 
 
 SIXTEENTH CONGRESS, 1819-1821. 
 
 GomnniUee on Elections. 
 
 Mr. Taylor, Mr. Brown, 
 
 Whitman, Tucker, 
 
 Merrill, Sloan, 
 
 Mr. Tarr. 
 
 Cases. 
 
 {!) Eollin C. Mallary vs. Orasmus C. Merrill, Vermont. 
 (2) James Guyon vs. Ebenezer Sage, New Yorlc. 
 
 (1) Mallary vs. Merrill. 
 
 Irregul<wities in returns. Seat gi/ven to petitioner. 
 
 Under the law of Vermont, members were elected on a general, 
 ticket. The law provided that a record of the vote in each town 
 should be made in the town clerk's office, and a certificate of the vote, 
 in a prescribed form, should be made out by the presiding officer, 
 sealed, and delivered by him to the representative of the town, or an 
 adjoining town, who should deliver it to a canvassing committee to be 
 chosen by the general assembly. This committee seems to have had 
 judicial as well as ministerial powers, and was required to certify the 
 names of the six persons having the highest number of legal votes to 
 the governor, who was to issue certificates of election to them. 
 
 According to the votes as counted by the canvassing committee, 
 Mr. Merrill was the sixth in order and Mr. Mallary the seventh, and 
 the former accordingly held a seat. Mallary contested on the ground 
 that he had actually received a majority of the votes cast^ which seems 
 to have been conceded. The canvassing committee had rejected one 
 return because it was not sealed, and another because it was informally 
 certified; some returns were not presented to the committee through 
 the neglect of representatives whose duty it was to have so presented 
 them; and in one return, by mistake, the names of certain candidates 
 for State officers were inserted as having received the votes for Con- 
 gress which were in fact, as shown by the record in the town clerk's 
 office, cast for the candidates for Congress. 
 
 The committee found that no fraud was alleged in the case of the 
 unsealed return; that the certificate on the one rejected for informality 
 was in sufficient compliance with the law, and that the votes not 
 returned or wrongly returned were sufficiently proved by the records 
 in the town clerks' offices and should be counted. This would give a 
 majority to petitioner, and the committee recommend that he be given 
 the seat. After considerable discussion the resolutions presented were 
 passed by a vote of 116 to 47, and Mr. Mallary took his seat. 
 
 Appended to the report are arguments by the sitting member and 
 petitioner. The petitioner contended that an election was complete 
 the moment the last vote had been taken, and all that took place there- 
 after was merely the ascertainment and proclamation of the result of 
 that election. The House, under its power to judge of the election of 
 
76 DIGEST OP CONTESTED ELECTION CASES. 
 
 its members, had the power to ascertain, by whatever evidence it 
 chose to admit, how the votes were actually cast, and to count them as 
 cast. Previous cases in Congress were discussed as sustaining this 
 position. 
 
 The sitting member, in a voluminous reply, contended that the right 
 of the House to judge the elections and returns of its members must 
 be exercised in subordination to the State laws prescribing the manner 
 of these elections and returns, until such time as Congress should by 
 law alter the laws of the States. The only question for the House to 
 decide is whether or not these laws have been complied with. The act 
 of returning officers in making and transmitting certificates of the 
 result is as much the act of the electors as the depositing of the votes; 
 and if these officers have neglected in any particular to comply with 
 the provisions of the law the voters have lost their votes by their own 
 laches. 
 
 [C. &H., 328-348.] 
 
 (2) GuTON vs. Sage. 
 
 The word ''^junior.'''' Seat given to petitioner. 
 
 According to the returns, Ebenezer Sage received 2,085 votes, James 
 Guyon, junior, 1,701, and James Guyon, 396. From the testimony of 
 the inspectors and clerks of election it appeared that 391 of the votes 
 returned for James Guyon were cast for James Guyon, junior. Count- 
 ing these for him would give him a majority of 7 votes. Mr. Sage had 
 not appeared to claim the seat, and the committee recommended and 
 the House voted that Mr. Guyon was entitled to it. 
 
 [C. &H., 348-352.] 
 
SEVENTEENTH CONGEESS. 77 
 
 SEVENTEENTH CONGRESS, 1821-1823. 
 
 Committee on Elections. 
 
 Mr. Sloane, Mr. Walworth, 
 
 Edwards, Rodgers, 
 
 Tucker, Smith, 
 
 Mr. Moore. 
 
 Cases. 
 
 (1) Philip Reed vs. Jeremiah Cosden, Maryland. 
 
 (2) Cadwallader D. Golden vs. Peter Sharpe, iV^w York. 
 
 (3) Matthew Lyon vs. James W. Bates, Arha/nsas Territory. 
 
 (1) Reed vs. Cosden. 
 
 In case of a tie, the result not to he decided iy lot. Dovhle hallots 
 and illegal votes. Seat given to petitioner. 
 
 The petitioner and sitting member were returned as receiving an 
 equal number of votes, and the governor and council, acting under a 
 Maryland law passed in 1790 or 1791, proceeded to determine between 
 the candidates, and gave the certificate to Cosden. It is not mentioned 
 in the report, but appears from the letter of the sitting member that 
 this determination was required to be and was by lot. The committee 
 expressed an opinion that the law under which the governor and coim- 
 cil acted had been repealed by the act of January 2, 1806, but consid- 
 ered it unnecessary to argue this point, as the law in question was 
 clearly unconstitutional. The Constitution provides that Representa- 
 tives in Congress shall be elected by the people, and if the people fail 
 to elect the State executive can have no power to appoint, by lot or 
 otherwise. 
 
 Petitioner, however, claimed that there was no tie of the votes as 
 cast, but that he had received a majority. In one of the precincts two 
 tickets folded together, both containing the name of petitioner, had 
 been thrown away b}"^ the judges under -the statute providing for the 
 rejection of double ballots. On completing the count it appeared that 
 there were 2 votes less than the number of names on the poll book. 
 Considerable testimony of a somewhat conflicting nature was produced 
 bearing upon the question whether the tickets in question actually had 
 the appearance of having been "deceitfully folded together." It 
 appeared that a discrepancy between the number of votes and the 
 number of names on the poll book was common, and all of the judges 
 seem to hkve agreed at the time that the ballot was double and should 
 be rejected. But the committee determined that it should be counted. 
 
 The sitting member charged that illegal votes had been cast for peti- 
 tioner, and that he had been credited with one vote on a ticket containing 
 his name and four others with the single designation "for Congress." 
 The committee rejected this latter vote, but expressed a doubt as to 
 entering into the question of the qualifications of voters when the elec- 
 tion was by ballot. Not wishing to agitate this question, they had 
 examined the testimony presented and found it insufficient. 
 
 The testimony was all somewhat irregularly taken, but, as both par- 
 ties showed a disposition to waive matters of form, the committee 
 admitted it. Adding to the votes of petitioner the two votes rejected as 
 
Y8 DIGEST OF CONTESTED ELECTION CASES. 
 
 a double ballot and deducting the ballot containing five names, he would 
 have a majority of 1 vote, and the committee recommended that he be 
 given the seat. After some debate in the Committee of the Whole an 
 amendment was reported to the resolution of the Committee on Elec- 
 tions inserting the word "not," so as to give the seat to neither party. 
 The amendment was agreed to in the House by a vote of 73 to 71. A 
 few days later the resolution declaring the sitting member not entitled 
 to the seat was passed. After several other motions had been made 
 and defeated,, the question being on the resolution as amended, declar- 
 ing petitioner not entitled to the seat, there appeared yeas 74, nays 75. 
 
 The Speaker (Mi-. P. P. Barbour) voted in the affirmative, thereby 
 making an Bqual division; and so, under the rule which declares that 
 in ' ' all cases of ballot the Speaker shall vote, in other cases he shall not 
 vote, unless the House be equally divided, or unless his vote, if given 
 to the minority, will make the division equal, and, in case of such 
 equal division, the question shall be lost," he decided that the resolu- 
 tion was lost, and, as a necessary consequence thereof, that the con- 
 verse of the proposition contained in the said resolution was affirmed, 
 to wit, "that Philip Reed is entitled to a seat in this House." This 
 decision being appealed from was overruled by the House, but a reso- 
 lution was immediately passed by a vote of 82 to 77 giving the seat to 
 Mr. Reed. 
 
 [C. &H., 353-369.] 
 
 (2) COLDEN VS. ShARPE. 
 
 Mistakes in returns corrected.^ and seat given to petitioner. 
 
 According to the returns, Peter Sharpe had received 3,369 votes, 
 Cadwallader D. Golden 3,339, Cadwallader D. Colder 220, and Cad- 
 wallader Colden 395. Mr. Sharpe had presumably received the cer- 
 tificate, but had not appeared to claim the seat nor resist the claim of 
 Mr. Colden. The clerks of the counties in which the votes were cred- 
 ited to Cadwallader D. Colder and Cadwallader Colden testified that 
 they had been returned by the precinct inspectors as cast for Cadwal- 
 lader D. Colden, and had been wrongly returned to the governor by 
 mistakes in making out the county transcripts. The committee rec- 
 ommended, and the House decided, that Mr. Colden was entitled to 
 the seat. 
 
 [C. &H., 369-371. J 
 
 (3) Lyon vs. Bates. 
 
 No testimony produced. Case dismissed. 
 
 The petitioner contested the seat on the ground that a number of 
 the county returns were irregular and that large numbers of illegal 
 votes had been cast. He asserted that he had applied to the acting 
 governor and secretary of the Territory for permission to inspect the 
 returns, or for copies of them, but both these requests had been 
 refused; and as there was no law of the Territory whereby he could 
 compel the attendance of witnesses to testify in the case,"he waived 
 what he considered his just right, and asked that a new election take 
 place. The committee reported, that inasmuch as the petitioner had 
 presented no testimony whatever in suppoi't of his memorial the com- 
 mittee ought to be discharged from further consideration of the case 
 and the House concurred. 
 
 [C. & H., 372.] 
 
EIGHTEENTH CONGRESS. 79 
 
 EIGHTEENTH CONGRESS, 1823-1825. 
 
 Oommittee &ri Electiouii. 
 
 Mr. Sloane, Mr. Standifek, 
 
 Ball, Mallaey, 
 
 TucKEE, South Carolina, Thompson, Kentucky, 
 
 Mr. Hall, North Carolina. 
 
 Case><. 
 
 (1) Parmenio Adams vs. Isaac Wilson, New Yorh. 
 
 (2) John Biddle vs. Gabriel Richard, Michigan Territory. 
 
 (3) Sundiy electors vs. John Bailey, Massachiisetts. 
 
 (4) John Forsyth, Georgia. 
 
 (1) Adams vs. Wilson. 
 
 Mistakes m returns., double iallots, erased iallot. Seat gvven to peti- 
 tioner. 
 
 According to the returns, Isaac Wilson had received 2,093 votes 
 and Parmenio Adams 2,077. The petitioner rested his claim entirely 
 on the claim that in the town of China, by mistake of the returning 
 officers, both candidates had been returned as receiving 67 votes, when 
 the vote in fact was 67 for the petitioner and 45 for the sitting mem- 
 ber. The sitting member claimed that the evidence did not fully estab- 
 lish this mistake, but seems practically to have conceded it, and set up 
 counter claims, viz: That a similar mistake of 5 votes in favor of peti- 
 tioner had occurred in the town of Attica; that a ballot containing the 
 printed name of sitting member struck through with one stroke of the 
 pen but perfectly legible, had been considered a blank by the officers of 
 election, and that 6 votes for him rejected on the ground of being 
 folded together should not have been rejected. The committee found 
 the charges of mistakes in the returns on both sides proved, which 
 would leave a majority of 1 vote for petitioner. The judges of election 
 who had the folded ballots and the erased one before them were much 
 better judges of their condition than any other body could be from a 
 mere description, and the committee were not inclined to overturn 
 their decision. This leaving a majority of 1 for petitioner, the com- 
 mittee recommended that he be given the seat, in which conclusion the 
 House after full discussion concurred, by a vote of 116 to 85. 
 
 The testimony, with statements of both parties, is printed with the 
 report. The mistakes in returns are proved by the recollections of 
 the officers, in one case aided by a written memorandum taken down 
 at the time; but circumstances are shown which make it clear that such 
 mistakes might easily have occui-red. The fact is brought out that in 
 the two towns where folded ballots were rejected, if each of the folded 
 ballots had been counted as one vote, the number of votes would have 
 corresponded to the number of names on the poll lists. On the other 
 hand, an attempt is made to prove that they might have slipped 
 together in the box, and that discrepancies between the ballots and 
 the number of names on the poll list were not uncommon. 
 
80 DIGEST OF CONTESTED ELECTION CASES. 
 
 The ballot rejected as a blank contained no other name or writing', 
 and it was the opinion of the board that the person who cast it "did 
 not intend to haye it count." If it were counted the number of votes 
 and of names on the poll list would correspond. One of the clerks of 
 the election, a brother-in-law of the sitting member, had contended 
 that it should be counted. The testimony develops no other details of 
 importance. 
 
 [C. & H., 373-406.] 
 
 (2) BiDDLE VS. RiCHAKD. 
 
 Legality of natv,ralization. Length of citizenship required in Mich- 
 igan. Sitting member retained the seat. 
 
 The sitting member, who was born in France, but had lived in the 
 United States since 1792, was naturalized by the court of Wayne 
 County, in the Territory of Michigan, less than a year before his elec- 
 tion to Congress. His election was contested on the grounds (1) that 
 the court before which he was naturalized had no authority to confer 
 naturalization, and he was consequently still an alien, and (2) that even 
 if the naturalization were legal he could not hold office under it in 
 Michigan until he had been one year a citizen. 
 
 The act of Congress of April 14, 1802, had provided that aliens might 
 be admitted to citizenship by the "supreme, superior, district, or cir- 
 cuit court of some one of the States, or of the Territorial jurisdictions 
 of the United States, or a circuit or district court of the United States." 
 A later section of the same act declared — 
 
 That every court of record, in any individual State, having common-law jurisdic- 
 tion, and' a seal, and clerk or prothonotary, shall be considered as a district court 
 within the meaning of this act. 
 
 The petitioner contended that the court of Wayne County was not 
 a district court, and being in a Territory and not "in any individual 
 State," could not be considered a district court under the last-quoted 
 section. The committee held this section to be merely declaratory of 
 what should be considered a district court, and the court in question 
 coming within the description, except in being in a Territory instead 
 of a State, was authorized!^ to grant naturalization. 
 
 As to the second question, the law provided that every free white 
 male citizen of said Territory, above the age of 21 years, who shall 
 have resided therein one year next preceding the election, "should be 
 entitled to vote for Delegate to Congress. " A subsequent law provided 
 that anyone qualified to vote for Delegate to Congress should be eligi- 
 ble to any office in the Territor}^. Without deciding the question 
 whether the office of Delegate to Congress was an office in the Terri- 
 tory, the committee concluded that the law only required a resid''nce 
 of one year with citizenship at the time of the election. 
 
 The petitioner was subsequently given leave by the House to with- 
 draw his papers, thereby confirming the sitting niember in his seat 
 
 rC. &H., 407-410.] 
 
 (3) Bailey. 
 
 Mcaii/iig of tli,r. ivurd ^^ iiilmbitaiit.'''' Seat v<(i'((fed. 
 
 The sittinginembor when elected was and for six years had been a clerk 
 in the State Department in Washington . His election was contested hj 
 
EIGHTEENTH CONGRESS. 81 
 
 a petition from seventeen citizens of Massachusetts, on the ground that 
 he was not at the time of his election an inhabitant of the State within 
 the meaning of the Constitution. The petitioners presented no testi- 
 mony, but testimony was procured by the committee, under authority 
 of a resolution reported from the committee and passed by the House. 
 It appeared that Mr. Bailey had been appointed a clerk in the State 
 Department on October 1, 1817, and had held his position until 
 October 21, 1823, when he resigned it. On September 8, 1823, he 
 had been elected to Congress from the district in Massachusetts from 
 which he was appointed, and to which he claimed it was his intention 
 to return. While in Washington he had lived in a public hotel until 
 about a year previous to his election, when he had married in the city 
 and had since resided with his wife's mother. During the time he 
 was in the city he had exercised none of the political privileges of 
 residents of the District of Columbia, and it seems to have been con- 
 ceded that his residence here was anlmo revertendi. 
 
 The committee presented an elaborate report, holding that there is a 
 marked difference between the words "inhabitant" and "citizen," 
 and that Mr. Bailey could not be considered an inhabitant of Massa- 
 chusetts. It was argued, from the presence of a strong States rights 
 party in the constitutional convention, and their reluctance to concede 
 anything to the other parties, that the word inhabitant, as used in the 
 Constitution, is to be strictly construed. The danger that Congress 
 would be filled with persons whose habits had made them strongly 
 under Executive influence was doubtless one of the reasons for the 
 insertion of this provision. The word in the earlier drafts of the 
 (Constitution was "resident," but "inhabitant" was substituted as a 
 stronger term. The word inhabitant is first defined by the committee 
 as comprehending those who "should be iona fide members of the 
 State, subject to all the requisitions of its laws, and entitled to all the 
 privileges and advantages which they confer. " It is thus distinguished 
 from the word citizen: 
 
 The word inhabitant comprehends a simple fact — locality of existence; that of 
 citizen — a combination of civil privileges, some of which may be enjoyed in any of 
 the States of the Union. The word citizen may properly be construed to mean a 
 member of a political society; and although he might be absent for years, and cease 
 to be an inhabitant of its territory, his rights of citizenship may not be thereby for- 
 feited, but may be resumed whenever he may choose to return. 
 
 The case of ministers of the United States representing the Govern- 
 ment at foreign courts presents no analogy, for by international law 
 the ministers carry with them the sovereignty of the government to 
 which they belong. Persons in the employ of the United States 
 within its limits are not in an analogous situation, and may acquire 
 inhabitancy in the District of Columbia in the same way as in any of 
 the States. 
 
 The resolution appended to the report, after a long debate in the 
 Committee of the Whole, passed that body by a vote of 105 to 55, and 
 being reported to the House, passed by a vote of 125 to 55; so the seat 
 became vacant. 
 
 The argument of Mr. Bailey, submitted to the committee, and the 
 speeches in the House and Committee of the Whole, contain an elaborate 
 discussion of both sides of the question. Against the report it was 
 urged that the whole question was one of intention, that the temporary 
 presence of Mr. Bailey in Washington, however long continued, did 
 
 HDnc. .'iin fi 
 
82 DIGEST OF CONTESTED ELECTION CASES. 
 
 not operate a loss of his inhabitancy in Massachusetts, so long as he 
 retained his intention to return. A liberal construction of the mean- 
 ing of the Constitution is called for, not only by the character of our 
 institutions, and especially the peculiar nature of the District of 
 Columbia, but also by the fact that in this case it will operate to carry 
 out instead of to defeat the expressed will of the people. 
 
 The case of foreign ministers was claimed to be analogous, in its 
 essentials, to the present case, for the privileges of the minister in the 
 country to which he is accredited are the result of international law, 
 which apply only so long as he is out of his own country. If inhabi- 
 tancy, in the words of the committee, merely "comprehends the simple 
 fact, locality of existence" it is impossible that the principles of inter- 
 national law should give locality of existence in one of the States of 
 the Union to a person actually outside of it. If locality of existence 
 constituted inhabitancy, a person happening to be in a State on the 
 day of election might be returned from it, in express opposition to the 
 purpose which it is claimed this clause of the Constitution was intended 
 to carry out. 
 
 On the other hand, besides an elaboration of the arguments of the 
 report, it was contended that if the District of Columbia were entitled 
 to a delegate in Congress, Mr. Bailey would be eligible to the position, 
 and hence could not be eligible to a similar position from Massachusetts. 
 
 [C. & H., 411-496.] 
 
 (4) FOESTTH. 
 
 Residence as United States minister at a foreign court no disqualifi- 
 cation. Sitting member retained the seat. 
 
 Mr. Bailey, the sitting member in the preceding case, introduced a 
 resolution requiring the Committee on Elections to report whether any 
 other members of the House were not, at the time of their election, 
 inhabitants of the States from which they were returned, defending 
 his resolution on the ground that if mere being in a place constituted 
 inhabitancy, foreign ministers could be no exception to the rule. The 
 resolution was passed, and the committee reported that Mr. Forsyth 
 had been elected to Congress while acting in the capacity of minister 
 to Spain. He had resigned the latter office before March 4. 
 
 The committee are of opinion that there is nothing in Mr. Forsyth's case \vhich 
 disqualifies him from holding a seat in this House. The capacity in which he acted 
 excludes the idea that, by the performance of his duty abroad, he ceased to be an 
 inhabitant of the United States; and, if so, inasmuch as he has no inhabitancy in any 
 other part of the Union than Georgia, he must be considered as in the same situation 
 as before the acceptance of the appointment. The committee respectfully ask leave 
 to be discharged from the further consideration of the subject referred to them. 
 
 The report was committed to the same Committee of the Whole to 
 which Mr. Bailey's case was committed, and after the decision of the 
 latter case the committee was discharged from further consideration 
 thus confir-ming the right of Mr. Forsyth to his seat. 
 
 [C. & H., 497-500.] 
 
IflNETEBNTH CONGRESS. 83 
 
 NINETEENTH CONGRESS, 1825-1827. 
 
 Committee on Elections. 
 
 Mr. Sloan, Mr. Hoffman, 
 Hatden, Powell, 
 
 TtroKEE, South Carolina, Bkyan, 
 
 Mr. Phelps. 
 
 Cases. 
 
 (1) Daniel Hugunin vs. Egbert Ten Ej'ck, Wew York. 
 
 (2) John Biddle and Gabriel Richard vs. Austin E. Wing, Michigcm 
 Territory. 
 
 (3) Sundry citizens vs. John Sergeant, Pennsylvcmia. 
 
 (1) HuGtTNiN vs. Ten Eyck. 
 
 The word '''' junior^' oiidtted. Seat given to petitioner. 
 
 According to the returns, Daniel Hugunin, jr., had received 6,188 
 votes; Egbert Ten Eyck, 5,4:84, and Daniel Hugunin, 470. Of the votes 
 returned for Daniel Hugunin, 412 were proved to have been cast for 
 Daniel Hugunin, jr., and this giving him a majority of 116 votes, the 
 committee recommended that he be given the seat. The resolutions 
 passed without opposition. 
 
 [C. H. 501-503.] 
 
 (2) Biddle and Richard vs. Wing. 
 
 Intimidation, irregularities, and illegal voting. Sitting delegate 
 retained the seat. 
 
 Of the votes cast at the election, John Biddle had 732, Austin E. 
 Wing 732, and Gabriel Richard 710, but certain votes had been rejected 
 by the inspectors, so that the vote as returned to the Territorial board 
 of canvassers was: Biddle, 731; Wing, 724, and Richard, 710. Before 
 the Territorial board of canvassers Mr. Wing objected to the counting 
 of certain votes given at the Sault de Ste. Marie, on the ground of ille- 
 gality, and presented affidavits to sustain his charge. After several 
 days' argument the board decided to receive testimony, and, at the 
 request of Mr. Biddle, adjourned to give him time to procure rebutting 
 testimony. When the board reconvened it examined the ex parte 
 testimony thus collected by both, and decided the votes illegal. They 
 were chiefly for Mr. Biddle, and being rejected, gave the majority to 
 Mr. Wing, to whom the certificate was given. The committee were 
 unanimous, in their opinion that in this proceeding the board had 
 exceeded their powers, and that they ought to have adjudged the cer- 
 tificate to Mr. Biddle. But the committee held that this was no reason 
 for giving him the seat in advance of a full determination of the case 
 on its merits. An error had been committed to the prejudice of Mr. 
 Biddle in the unauthorized assumption of jurisdiction by the board of 
 canvassers, but the committee would not presume that equally impor- 
 
84 DIGEST OF CONTESTED ELECTION CASES. 
 
 tant errors to the prejudice of other candidates had not been com- 
 mitted ))y the .same or other officers, and as the House has jurisdiction 
 over the whole matter, with power to correct the mistakes of all 
 officers, the right to the seat can not be settled until the whole case 
 has been examined. 
 
 As the case came before the committcj both Mr. Biddle and Mr. 
 Richard claimed the seat held by Mr. Wing. The claim of Mr. 
 Richard was based not on any allegation that he had actually receiv^ed 
 the greatest number of votes, but on the claim that he would have 
 received the greatest number had not his friends, at the election held in 
 Detroit, been intimidated from voting by the interference of deputy 
 sheriifs and constables. The committee were unanimous in reporting 
 adversely to the claim of Mr. Richard. 
 
 The committee are of opinion that the duty assigned to them doea not impose on 
 them an examination of the causes which may have prevented any candidate from 
 getting a suflBcient number of votes to entitle him to the seat. They consider that 
 it is only required of them to ascertain who had the greatest number of legal votes 
 actually given at the election. An election is the act of selecting, on the part of the 
 electors, a person for an office of trust. The inspectors of election are constituted 
 judges of the qualifications of the electors, and exercise, from necessity, a discretionary 
 power; if they err and reject a legal vote,^ or an elector, from any cause, should fail 
 in presenting his vote for their reception, the nature of the case precludes it from 
 entering into the consideration of the general result of the election; unless, indeed, 
 corruption should appear, sufiicient to destroy all confidence in the purity and fair- 
 ness of the whole proceedings. It is properly a proceeding between those officers 
 and the injured party. * * * In case of the application of the contrary doctrine, 
 the greatest uncertainty must necessarily prevail, and should it be established, it 
 would be placing in the hands of a few riotous individuals the power of defeating any 
 election whatever. The law appoints a particular time and place for the expression 
 of the public voice; when that time is past, it is too late to inquire who did not vote, 
 or the reasons why. 
 
 But in justice to the citizens of Detroit the committee presented a brief 
 statement of facts, showing that the election was held under circum- 
 stances which made disturbances almost inevitable, and that although 
 the friends of Mr. Richard alone entered complaint, it was bj' no means 
 certain that the attention of the sheriii and constables in preserving 
 order was directed entirely to them; indeed, the fact that they were 
 nearly as numerous as the other two parties combined made it improb- 
 able that any serious intimidation could have been practiced on them. 
 
 The committee being unanimous in the opinion that ]Mr. Richard 
 was not elected, the question remained between Messrs. Biddle and 
 Wing, on which latter question they were not unanimous, though 
 what the conclusions of the minority were does not appear. 
 
 The testimony was, in part at least, that on which the Territorial 
 board of canvassers had acted. It was all taken e.v parte, but the com- 
 mittee were of opinion that inasmuch as Mr. Biddle had procured ex 
 parte testimony to rebut that produced by Mr. Wing, he could not be 
 neard to object to the introduction of such testimonj^. 
 
 First counting for the respective candidates the' votes improperly 
 rejected by the inspectors, it appeared that the vote as it should have 
 been returned and canvassed was: Biddle, 732; Wing, 728; Richard 
 722. To overcome the plurality thus shown for Mr. Biddle, Mr. Wing 
 alleged that of the 61 votes cast at the Sault de Ste. Marie 61 were 
 
 ' But the committee in this case seem to have overruled themselves, so far as the 
 rejection of legal votes is concerned, by receiving testimony as to votes rejected by 
 the inspectors, and counting such as the testimony showed ought to have been 
 
 received. 
 
NINETEENTH CONGRESS. 85 
 
 illegal, never having paid the county or Territorial tax required by 
 law as a qualification for voting. Twelve of these illegal votes were 
 also claimed to be illegal because the voters were soldiers discharged 
 from the United States Army less than a year before the election, 
 3 because the voters were aliens, and 3 because of nonresidence. Ten 
 ■ also were said to be cast by half-breed Indians. 
 
 The committee found all the charges to be sustained except that in 
 regard to the Indians. The 51 voters whose qualification was attacked 
 on the ground of nonpayment of taxes did not appear on any tax list 
 and had never paid a tax in money, but had turned out a few days 
 before the election and voluntarily worked a road never established 
 by law. This the committee held was not a payment of taxes. The 
 soldiers had been long quartered in the Territory, but had been dis- 
 charged less than r. year before the election, and their residence could 
 not have begun until their discharge. 
 
 Ten half-breed Indians were proved to have voted. As to them the 
 committee said: 
 
 With respect to the first class the committee are sensible that it presents a question 
 very delicate and important. In deciding on it they would be governed by two 
 facts — the mode of life and the society to which the party, by his own voluntary act, 
 attaches himself. If, by his manner of living and place of abode, he was assimilated 
 to and associated with the great body of the civilized community; had never 
 belonged to any tribe of Indians, as a member of their community, and being pos- 
 sessed of the other necessary qualifications, no good reason is perceived against such 
 a person being considered as a qualified elector.' But, on the other hand, if he 
 belongs to any of the tribes of Indians, or, being an outcast, uncivilized in his deport- 
 ment, and not approaching the manners of other citizens, it would be a prostitution 
 of the character of an American citizen to attempt to clothe such a person with it. 
 
 The testimony in regard to these. Indians being conflicting, the com- 
 mittee did not decide the question of their qualifications. 
 
 Taking the view of the question most favorable to Mr. Biddle, and 
 deducting from his vote only the votes of discharged soldiers, aliens, 
 and nonresidents, there was still a majority of 11 for Mr. Wing, and 
 the comriiittee recommended that he be confirmed in his seat. ' The 
 case was discussed one day, but no vote was taken in the House, so the 
 sitting member retained his seat. 
 
 [C. &H., 604-515.] 
 
 (3) Sergeant. 
 
 Powei' of candidates to waive rights under a tie election. Sitting 
 member retained the seat. 
 
 At the regular election the result was a tie. The governor, not con- 
 sidering that he could call'a new election without a relinquishment by 
 both candidates of their, claims under the first election, waited until 
 the receipt of letters from both candidates relinquishing their claims. 
 He then proclaimed a second election, at which Mr. Sergeant was 
 elected. A petition was presented alleging that from certain votes 
 found in the coroner's and other boxes for Henry Horn it appeared 
 that the intention of a plurality of the electors was to choose Henry 
 Horn at the first election. No testimony accompanied the memorial, 
 and in answer to requests from the committee the only testimony pre- 
 
 ^This under a law providing that "every free white male citizen'-' possessing cer- 
 tain qualifications should be entitled to vote. 
 
86 DIGEST OF CONTESTED ELECTION CASES. 
 
 sented was taken exjpa/rte and apparently without notice. These depo- 
 sitions the committee considered "entirely insufficient to invalidate the 
 rights of the sitting member;" and they moreover did not consider it 
 necessary to investigate the rights of the parties under the first elec- 
 tion, "because, whatever these rights were, they have been voluntarily 
 relinquished." They presented a resolution declaring Mr. Sergeant, 
 entitled to his seat, which was passed without debate or division. 
 [C. &H., 516,577.] 
 
TWENTIETH CONGRESS. 87 
 
 TWENTIETH CONGRESS, 1827-1829. 
 
 Committee on Elections. 
 
 Mr. Sloai e, Mr. Claiboene, 
 
 Anderson, Phelps, 
 
 Alston, Stower, 
 
 Mr. Tucker, South Carolina. 
 
 There were no cases in the Twentieth Congress. 
 
 TWENTY-FIRST CONGRESS, 1829-1831. 
 
 Gom/mittee on Elections. 
 
 Mr. Alston, South Carolina, Mr. Johnson, Tennessee, 
 
 Tucker, Beekman, 
 
 Claiborne, Colman. 
 
 Gases. 
 
 (1^ Silas Wright, junior, vs. George Fisher, New York. 
 
 (2) George Loyall m. Thomas Newton, Virginia. 
 
 (3) Thomas D. Arnold vs. Pryor Lea, Termessee. 
 
 (4) Reuel Washburn vs. James W. Kipley, Maine. 
 
 (1) Wright vs. Fisher. 
 
 Mistakes in returns, and omission of the word ^'■junior." Seat gvve)i 
 to petitioner. 
 
 Report by Mr. Alston. 
 
 According to the returns George Fisher received 8,939 votes, and 
 Silas Wright, junior, 8,932, but a number of votes cast for Silas 
 Wright, junior, were returned, by mistake of the inspectors, as cast 
 for Silas Wright, and in two returns the votes cast for Wright were 
 omitted by mistake. The committee corrected these mistakes, and 
 recommended that the seat be given to petitioner. The resolution 
 was passed, but Mr. Wright did not appear to take the seat, and some 
 time later resigned it. 
 
 [C. & H., 518, 519.] 
 
 (2) Loyall vs. Newton. 
 
 Power of mayors of cities in Virginia to adjourn the poll. Illegal 
 votes. Seat given to petitioner. 
 
 Report by Mr. Alston. 
 
 According to the returns the vote was: Loyall, 935; Newton, 948; 
 majority for Newton, 13. Loyall contested on the ground of illegal 
 votes, alleging that 184 votes had been cast for the sitting member by 
 persons not qualified under the laws of Virginia. Newton replied by 
 charging that 384 votes of unqualified persons had been cast for 
 
88 DIGEST OF CONTESTED ELECTION CASES. 
 
 petitioner, and that all the votes, being 93 for Loyall and 69 for New- 
 ton, east in the city of Norfolk on the second and third days of the 
 election were illegal. The election had been adjourned by the mayor, 
 and it was contended that by the laws of Virginia the mayors of cities 
 did not have the power possessed by sheriffs of counties to adjourn 
 the poll, and in any case, the contingencies under which a sheriff 
 might adjourn the poll did not exist. 
 
 The committee were of the opinion that the adjournment in Norfolk 
 was legal, and that of the 184 votes charged as illegal by petitioner 
 the charges were sustained as to 93, and of the 384 votes charged as 
 illegal by the sitting member the charges were sustained as to 50. 
 This would leave a majority for petitioner of 30 votes. 
 
 To reach this result the rules adopted in Porterfield vf<. McCoy were 
 applied. The oath of the voter, or his friends, was permitted to 
 establish the fact of his naturalization, or possession of a freehold. 
 The committee were of the opinion that this was not in accordance 
 with the rule of law that the best evidence the case admits of should 
 be required, but if this rule should be applied, and only documentary 
 evidence of naturalization or title received, the case of sitting mem- 
 ber would be still worse. Under this strict rule 113 of the exceptions 
 of petitioner and only 42 of those of sitting member would be sus- 
 tained, leaving petitioner a majority of 58. 
 
 All the testimony taken by petitioner was excepted to on the ground 
 that it was not legally taken. There was no law of Congress in force 
 providing a method of taking testimony, and the petitioner had pro- 
 ceeded after the method prescribed for contests for seats in the gen- 
 eral assembly of Virginia as being the most nearly analogous case. 
 He had had a commission appointed by the courts, consisting of three 
 justices of the peace or notaries public. He gave notice to the sitting 
 member to attend, specifying the names of the voters attacked and the 
 objection to each. The sitting member refused to attend on the ground 
 that the commission had no authority of law. The sitting member 
 likewise gave the petitioner due notice, specifying the names of voters 
 attacked and the charges, and took his testimony before two justices 
 of the peace. The petitioner, being absent as a member of the con- 
 stitutional convention, did not attend. The petitioner presented cer- 
 tified copies of the land lists, the sitting member the parol testimony 
 of persons who had examined the lists. The committee received the 
 testimony of both parties, as the officers taking it in each case were 
 authorized to administer oaths, and it was taken on due notice. 
 
 After being much debated, a motion to recommit the report to the 
 Committee on Elections was defeated by a call for the previous ques- 
 tion, and the resolution presented bj' the committee, declaring Mr. 
 Loyall entitled to the seat, was passed by a vote of 97 to 84. Mr. 
 Loyall took the seat the next day. 
 
 In the letters of the sitting member presented to the committee, and 
 in the debate, all the questions involved were elaborately argued. 
 There was no law of Virginia expressly empowering the mavors of 
 cities to adjourn an election. In the counties the sheriffs presided, and 
 were given the power, in certain contingencies, to adjourn the poll, 
 through not more than four days. In cities the election was to be 
 presided over by the mayor. In several statutes in regard to the 
 conduct of elections the sheriffs and mayors were both mentioned, and 
 similar provisions made in regard to both. From this it was argued 
 
TWENTY-FIRST CONGRESS. 89 
 
 that it had been intended to give the mayors all the powers possessed 
 by the sheriffs, including that of adjourning the poll, and the com- 
 mittee seems to have so decided. But it was objected that so impor- 
 tant a power as this could not be granted except by express delegation; 
 that the circumstances which rendered it necessary in the counties did 
 not exist in cities, and that it was a power which no mayor before had 
 assumed to exercise. As to whether the contingency of there being 
 more voters present than could be polled had occurred, the evidence 
 was conflicting. The opening of the election had been considerably 
 delayed (until 2 p. m.) by speeches by the candidates; persons appeared 
 as the polls were closing, asking to vote, and a consideraljle number 
 of votes was cast on the two succeeding days. 
 
 Upon the question of illegal votes a neated discussion took place in 
 which the fairness of the committee was attacked, because they had 
 merely announced the number of votes decided as illegal on each side, 
 and had not presented any list of their names or brief of the testimony. 
 The testimony was so voluminous and confused (it covered 800 pages) 
 that no member could be expected to make anything out of it without 
 some aid from the committee, and the fact that the committee had 
 sustained about one-half of the exceptions of Mr. Loyall and only 
 about one-sixth of those of Mr. Newton was sufficient ground for ask- 
 ing at least that they give their reasons in each individual case. The 
 committee were not unanimous in their report, though what the posi-- 
 tion and arguments of the minority were can only be inferred from 
 the debate. 
 
 [C. & H. 520-600. J 
 
 (3) Aenold vs. Lea. 
 
 Fraud and irregularities. Sitting member retained the seat. 
 
 Report by Mr. Alston. 
 
 In his memorial to the House the specifications of petitioner were: 
 
 That perjury and subornation of perjury were resorted to; that bribery, direct and 
 indirect, were resorted to, and, in short, to insure the defeat of your memorialist, 
 the laws of Tennessee, which prescribe in a special manner the mode of holding 
 elections, were completely prostituted and trampled under foot by the official authori- 
 ties who conducted the election, and their own partial, prejudiced, and malignant 
 passions substituted in place of the laws of the land. 
 
 The petitioner announced his belief that if the election had been 
 legally conducted he would have been elected, but asked only that the 
 seat be declared vacant. The specifications in the notice of petitioner 
 to sitting member were: 
 
 1. Because the laws of this State, which prescribe the mode of holding elections, 
 have beeo most flagrantly violated on the days of election by the official authorities 
 who conducted the election. 2. A vast number of illegal and spurious votes have 
 been given for you in the election without as well as with the connivance of the offi- 
 cial authorities employed in holding the election. 3. Perjury and subornation of 
 perjury have been employed to give you your boasted majority of 217. 4. Bribery, 
 it is believed, has been employed to insure your success. (See p 3, documents 
 printed with report 32, Twenty-first Congress. ) 
 
 In spite of these manifestly insufficient allegations the committee 
 
 "chose to go into an examination of the documents submitted to them." 
 
 The specific charges as brought out by the evidence were: 
 
 (1) That at Tazewell, Claiborne County, all the officers of election 
 
 were partisans of the sitting member; that after the polls were closed 
 
90 DIGEST OF CONTESTED ELECTION CASES. 
 
 on the evening of the first day the inspectors sealed up the box, and 
 instead of taking charge of it, as the law required-, turned it over to 
 the sheriff, who locked it up in a trunk in a store, where it had been 
 customary to keep it. On learning of this the friends of petitioner 
 complained, but, the inspectors having dispersed, the sheriff declined 
 to interfere further with the box. The next morning the trunk was 
 unlocked by the sheriff in the presence of one of the inspectors and an 
 elector, and the box showed no appearance of injury- To avoid sus- 
 picion the votes taken the second day were deposited in a separate box. 
 When the l^allots were counted they corresponded in number to the 
 names on the poll list, and the petitioner was found to have received a 
 majority of 142 votes in the first day's box, and of 14 votes in the other. 
 
 (2) In the precinct of Berry's, Claiborne County, a large gourd was 
 used as a box; on the evening of the first day it was stopped and tied 
 with a handkerchief and taken charge of by one of the inspectors, who 
 locked it in his house over night. There was no evidence of fraud, and 
 the officers of election were proved to be men of good character. 
 
 (3) In Knoxville, a witness swore that he heard Isaac Jonas say that 
 he had been hired to vote for sitting member. Another witness swore 
 that two years before the election he had heard the grandmother of 
 Eli Hill say that he was sixteen years old. Hill swore to the officers 
 of election that he was of age. 
 
 (4) At McGinniss's, the officers of election were not sworn. A 
 majority of them were in favor of petitioner, and he received a large 
 majority of the votes. 
 
 (5) At Tazewell the inspectors had deducted a few votes as illegal, 
 but more from Lea than from Arnold. 
 
 (6) At McFarlands the officers of election were distantly related to 
 the sitting member. The box was kept over night in the sheriff's 
 house. One of the inspectors remained in the house with it, and the 
 key was taken home by another inspector. 
 
 (T) At Unitia one of the inspectors was a justice of the peace, and 
 he swore the other officers and himself. The box was locked up in a 
 store over night. 
 
 The irregularities detailed in the first, second, fifth, sixth, and 
 seventh counts above the committee found to be insufficient to over- 
 throw the returns, the election having been honestly conducted by 
 qualified officers according to the spirit, if not the letter, of the law. 
 The evidence in regard to the third charge is inadmissible and insuf- 
 ficient. The fact that the officers of election at McGinniss' (fourth 
 charge) were not sworn would not vitiate the whole election, and the 
 committee did not decide whether the precinct election Mas vitiated or 
 not, as it would not affect the result. 
 
 The committee have not discovered the slightest ground for the imputation of 
 "perjury," or "subornation of perjury," "bribery, either direct or indirect," or 
 "corruption," or any species of fraud whatever, either to the officers holding the 
 election or the voters, and that a full and fair expression of public opinion has been 
 obtained. The committee are therefore unanimously of the opinion that the seat of 
 Pry or Lea ought not to be vacated. 
 
 Against the petitioner it was j)roved that he had loaned his horse to 
 a minor to go to another precinct and vote, his vote having been 
 refused at his home precinct. 
 
 Certain printed papers, appearing to be campaign documents, were 
 excluded by the committee on the grounds that Siey had no connec- 
 tion with the case, and that there was no evidence of their publication 
 
TWENTY-FIBST CONGRESS. 91 
 
 and no notice to the sitting- member of an intention to use them as 
 evidence. 
 
 In the course of the hearing before the committee there was such 
 an exhibition of feeling between the parties that they were required 
 to present their arguments in writing. Similar heat was exhibited by 
 both parties in the debate, and it was explained by the petitioner that 
 they " were not upon terms even of common civilit3^" 
 
 It was ordered by the House that all the written testimony of both 
 parties should be printed, with such of the printed documents as should 
 be selected by either party, and adjudged by the Committee on the 
 Judiciary "to be in any wise applicable to the case before the House." 
 
 The Committee on the Judiciary reported that all the documents 
 were wholly irrelevant, and they were not printed. 
 
 After several days discussion in the Committee of the Whole and in 
 the House, the resolutions presented by the Committee on Elections 
 were passed by a vote of 149 to 20, and the sitting member was accord- 
 ingly confirmed in his seat. 
 
 The speeches made in the House by Mr. Arnold and Mr. Lea are 
 very long, but deal almost entirely with personalities, and the docu- 
 ments declared irrevelant by the Committees on Elections and the Judi- 
 ciary. These documents were campaign circulars charging bribery 
 against Mr. White, United States Senator from Tennessee, and impli- 
 cating Mr. Lea as his agent. It is unnecessary to outline the argu- 
 ment upon them. As to the issues of the case, Mr. Arnold's contention 
 was that any violation of the laws of Tennessee by the election officers 
 should vitiate an election, and that the irregularities in this case were 
 such as indicated fraud. Mr. Lea contended that the irregularities 
 were of form only, that fraud could not be presumed, and that there 
 was nothing in the evidence to prove it, but rather everything tended 
 the other way. Mr. Ellsworth announced the true principle of deci- 
 sion to be, whether the electors had complied with the law, and what 
 was the result of their vote. If the electors had complied with the 
 law, no irregularity on the part of the officers charged with the elec- 
 tion and returns should defeat their choice, if bj' any means that choice 
 could be ascertained. 
 
 Mr. Huntington delivered an elaborate legal argument to show that 
 the irregularities proved were sufficient to vitiate the election. [C. & H. , 
 601-678.] 
 
 (4) Washburn vs. Eiplet. 
 
 Where a majority vote is required for a choice, votes for candidates 
 for other offices, evidently placed in the Congressional oox hy mistake, 
 are nevertheless to he counted in reckoning the whole number of votes of 
 which a majority is necessary. Decision in furor of sitting meviher. 
 
 Report by Mr. Alston. 
 
 Under the laws of Maine a majority of all the votes cast was neces- 
 sary to a choice, and if* no candidate received a majority at the first 
 election it was the duty of the governor and council to order a new 
 election. At the first election, held on the second Monday in September, 
 1828, Reuel Washburn received 2,495 votes, and James W. Ripley, 
 2,180, but scattering votes were returned sufficient to make the whole 
 vote 4,994. Washburn had thus 2 votes less than were necessary 
 for a choice, and a new election was ordered at which Ripley was 
 elected. 
 
92 DIGEST OF CONTESTED ELECTION CASES. 
 
 Washburn contested on the ground that most of the persons for 
 whom scattering votes were returned were candidates for other offices, 
 some of them were ineligible to Congress, and the votes for all of them 
 put in the Congressional box were evidently so placed by mistake. 
 He proved that in one precinct a ballot containing the names of two 
 candidates for the State senate was placed in the Congressional box 
 by mistake, and the voter, discovering his mistake, requested to have 
 it changed, but the selectmen refused him permission and counted the 
 ticket as 2 votes. A majority of the committee were in favor of 
 counting it as 1 vote, a minority in favor of not counting it at all. 
 In another precinct it was charged that a ballot containing three names 
 was similarly deposited and counted, but the proof did not satisfy a 
 majority of the committee. It was also proved that a vote intended 
 to be cast for petitioner for Repi'esentative in Congress was by mis- 
 take put into the box for the election of State senator. As to this 
 ballot and the ballots in the Congressional box alleged to have been 
 placed there by mistake, the committee were unanimously of the 
 opinion — 
 
 That when the votes are taken by ballot and separate boxes used, after they are 
 deposited in the box it is not competent or proper for the voter or selectmen to alter 
 or change the ballot as delivered into the boxes, and that the intention of the voter 
 is to be ascertained alone from the box in which his ticket is deposited, and that the 
 selectmen conducting the elections at the places above specified acted correctly in 
 making out their return to the governor and council of all the ballots they found in 
 the box which was used for the reception of tickets for a member of Congress, and 
 in refusing to count the votes they found in other boxes with the name of Washburn 
 on it and adding them to his list of votes given for him as a member to Congress. 
 The adoption of any other rule would be fraught with danger to the purity of the 
 elective franchise. 
 
 This whether the persons whose names were on such ballots would 
 have been eligible to Congress or not. 
 
 The sitting member insisted that, inasmuch as the whole matter had 
 been referred to the people by the governor and council, it was incom- 
 petent for the House to go behind the last election. A majority of 
 the committee overruled this objection. 
 
 It was further insisted that Mr. Washburn had waived any rights 
 he might have had under the first election by accepting the office of 
 one of the counselors of the State of Maine, from which office, by the 
 constitution of Maine, a member of Congress was disqualified. He 
 had accepted this office in January, 1829, and resigned it in February, 
 and as the term of service as a Member of Congress, to which he 
 claimed to have been elected in September, did not commence until 
 March 4, 1829, a majority of the committee were of the opinion that 
 any rights he may have had were not destroyed. 
 
 The whole number of votes cast being 4,99i, necessary to a choice 
 2,497; if the double ballot counted as 2 votes be counted as one, the 
 number of votes cast would be 4,993, necessary to a choice still 2,497. 
 But if the fact of a ballot with three names on.it having been counted 
 be taken as proved, then 2 more votes will have to lie deducted from 
 the total number, and 2,496 votes will be necessary to a choice, one 
 more than Mr. Washburn received. A minority of the committee 
 were of the opinion that all 5 of these votes should be deducted which 
 would leave 2,495 votes — just the number received by Mr. Washburn — 
 sufficient to a choice. 
 
TWENTY-FIEST CONGRESS. 93 
 
 After being several days discussed in the Committee of the Whole, 
 the resolution appended to the report was passed by the House by a 
 vote of 111 to 79. 
 
 Mr. Washburn, in his argument to the committee, rested his case 
 on the ground that the intention of the voters who cast the votes being 
 plain, and the mistake by which they were placed in the wrong box 
 evident, the votes should be counted according to the plain intention 
 of the voters. In answer to the argument that the question had been 
 referred to the people and settled by them, he ans\vered: (1) That the 
 new election had been ordered without his knowledge or consent, and 
 he had yielded none of his rights; (2) according to the usage of former 
 executives, returns not properly certified or otherwise informal should 
 not have been counted in making up the final canvass; if the precinct 
 returns containing fatal informalities had been rejected there would 
 have been a choice, and the second election ought never to have been 
 ordered; (3) in a memorial to the governor and council he had claimed 
 at their hands a certificate of election, and they had virtually admitted 
 that if he could establish the facts claimed in his memorial he would 
 be entitled to the certificate. But while they received evidence to 
 cure irregularities in the returns, they did not consider themselves 
 authorized to go into the investigation of charges such as those made 
 by the petitioner. 
 
 Mr. Ripley, in his answer, conceded that the votes for candidates for 
 various other offices found in the Congressional box were probably 
 placed there by mistake, but claimed that such mistakes occurred in 
 every election, and it would be a vei-y dangerous practice to attempt 
 to determine the intention of the elector from anything but the ballot 
 itself and the box in which it was deposited. The propriety of enter- 
 ing into an inquiry in regard to the tickets said to have contained two 
 and three names was doubted; but if it were to be entered into, the 
 proof in regard to the one said to contain three names was entirely 
 insuflScient, and the ballot containing two names should at least be 
 counted as one vote, which would not affect the result. He also charged 
 that petitioner was disqualified by accepting the office of one of the 
 counselors of the State of Maine for a term which if he had served 
 it out would have extended into the Congressional term, and which he 
 had resigned on account of sickness in his family and without refer- 
 ence to the Congressional contest. 
 
 Mr. Ripley asked for time to procure further testimony, which the 
 committee refused, on the ground that, having already decided the case 
 in his favor, it was unnecessary. 
 
 rC. & H., 679-701.1 
 
94 DIGEST OF CONTESTED ELECTION CASES. 
 
 TWENTY-SECOND CONGRESS, 1831-1833. 
 
 Cu'iiiTnittee on Elections. 
 
 Mr. Claiborne, Virginia, Mr. Bethune, 
 
 Randolph, Colliek, 
 
 Holland, Arnold, 
 Mr. Griffin. 
 
 Cases. 
 
 (1) David Crockett vs. "William Fitzgerald, Tennessee, 
 
 (2) Joseph Draper vs. Charles C. Johnston, Virginia. 
 
 (1) Crockett vs. Fitzgerald. 
 
 Case dismissed. 
 
 The .Speaker laid before the House certain depositions in regard to 
 the election of William Fitzgerald, of Tennessee, taken on behalf of 
 David Crockett. No memorial was presented by Crockett. The papers, 
 whose object seems to have been to prove certain irregularities at the 
 polls and a disregard of the law in regard to the custody of the ballot 
 box, were referred to the Committee on Elections, but no report was 
 ever made, and on February 6, 1832, the committee was, by order of 
 the House, discharged from the further consideration of the subject. 
 
 [C. &H.,703.] 
 
 (2) Draper vs. Johnston. 
 
 Illegal votes and irregularities. The committee recommended that 
 the seat he declared vacant, iut the Souse confirmed the title of sitting 
 member. 
 
 Report by Mr. Collier. 
 
 The grounds upon which the election was contested were: 
 
 First. That the petitioner received a greater number of votes from voters legally 
 qualified. 
 
 Second. That, by the laws of Virginia, an election can only be continued for three 
 days, whereas, in the county of Washington, in said district, the polls were kept 
 open for four days; and that if the votes given on the fourth day were excluded, 
 the petitioner would have a majority over the sitting member. 
 
 Third. That the officers conducting the election in that county were not duly 
 qualified according to law. 
 
 Fourth. That the polls in Washington County were not adjourned from day to day, 
 by proclamation, as required by law. 
 
 Fifth. That the superintendents of the different precinct elections in Washington, 
 Eussell, Lee, and Scott counties were not legally appointed and sworn. 
 
 Sixth. That the poll books in Russell County "were not relumed to the clerk's office 
 of that county according to law. 
 
 Seventh. That the mode of conducting the election in Washington County was not 
 uniform, for at the court-house and at the Three Springs persons residing out of the 
 county were permitted to vote, although not freeholders in the county, while at the 
 precinct election in another part of the county persons similarly situated were not 
 permitted to vote. 
 
 Eighth. That, by the laws of Virginia, when voters fail to appear and give their 
 votes, proclamation having been made three times at the door of the court-house, or 
 other place of holding such election, by the officers, requiring those who had not 
 
TWENTY-SECOND CONGRESS. 95 
 
 been polled to come in and give their votes, it is the duty of the officers to conclude 
 the poll. That on the fourth day of election in Washington County, after 12 votes 
 had been polled, more voters failed to appear, and the officer conducting the election, 
 although requested, refused to close his poll, at which time the petitioner had a 
 majority. 
 
 According to the returns, 2,749 votes were cast for Mr. Johnston, 
 and 2,671 for Mr. Draper, a majority of 78 for sitting member. 
 
 In all the counties except Washington the polls were closed on or 
 before the evening of the third day, but in Washington, on ^e, fourth 
 day, 86 votes were cast for Mr. Johnston and 1 for Mr. Draper. The 
 law (passed in 1831) provided that, in certain contingencies, the sheriff 
 might adjourn the poll "until the next day, and so from day to day 
 for three days * * * but if the poll * * * is not closed on 
 the first day the same shall be kept open two days thereafter." 
 
 Another section of the same act provided that the election for mem- 
 bers of Congress should be held "in the manner and according to the 
 principles prescribed by the law nov^ in force in relation thereto." 
 According to the law in force previous to the passage of the act of 
 which this was a section, elections might be kept open for four days, 
 and the sitting member contended that even if (which he denied) the 
 act of 1831 must be construed to prohibit the adjournment of the polls 
 beyond the third day, the elections for member of Congress were 
 excepted and to be held under the old law. The committee held that 
 it was not the intention of the legislature to authorize the polls for 
 Representative in Congress to be kept open longer than those for the 
 election of State officers chosen at the same election, and that under 
 the law of 1831 the first day was to be counted in computing the three 
 days on which the election could be held. They were strengthened in 
 this conclusion by another section of the same act, providing that can- 
 vassers in certain special elections were to meet on \h& fourth day and 
 canvass the votes, and by the fact that the Virginia senate, in a recent 
 case, had decided that polls could be kept open only three days. 
 
 If this were the only question involved the seat would be given to 
 the petitioner, but both parties had attacked many votes for illegality 
 and some polls for irregularity. Eliminating the illegal votes, peti- 
 tioner would be entitled to the seat; but excluding, also, the irregular 
 polls, the sitting member has the most votes remaining. 
 
 The decision of the question of illegal votes was complicated by a 
 false assumption of the parties. It was assumed by them that if a vote 
 was charged to be illegal the burden was on the party claiming the 
 vote to prove it legal. Written stipulations were entered into as to two 
 counties, admitting all votes charged to be bad until proved to be good, 
 and in the other counties there was no reservation, and the votes were 
 unconditionally admitted to be bad. The committee were of the opin- 
 ion that all votes received by the -election officers should be taken as 
 ■prima fade good, but as the testimony had been taken on the contrary 
 assumption, the votes had to be estimated in a different way. It was 
 found that Mr. Johnston had admitted 307 votes to be illegal and Mr. 
 Draper 313. Upon agreed statements of cases the committee further 
 rejected 23 votes from Mr. Johnston's poll and 27 from Mr. Draper's. 
 The committee were of the opinion that in spite of the stipulations of 
 the parties, if evidence could be produced showing that any of the votes 
 rejected were in fact cast by qualified voters, they should be counted. 
 Time was accordingly given to the parties to take testimony, and the 
 committee found that this testimony established the legality of 54 
 
96 DIGEST OP CONTESTED ELECTION CASES. 
 
 votes for Mr. Johnston and 82 for Mr. Draper of those previously 
 deducted upon the admission of the parties. 
 
 The objectioii.s made by the petitioner to various polls were all over- 
 ruled. The officers of election in certain counties were charged not 
 to have been sworn and appointed according to law. The fact of tak- 
 ing the oath waw affiimatively shown in all these counties except one, 
 and in that one, there being no proof either way, it was presumed to 
 have been taken. The committee did not examine into the regularity 
 of the proceedings by which the officers had been appointed, as they 
 had acted colore officii^ and had been appointed, regularly or irregu- 
 larly, by a court having the general power to make such appointments. 
 The objection to the regularity of the adjournment on the fourth day, 
 in Washington -County, was no longer material, as the votes had 
 already been rejected for another reason. The neglect to return the 
 poll books of Russell County within the legal time was held not to 
 vitiate the election. 
 
 The petitioner would thus have a majority of the votes were it not 
 for the irregularities charged by the sitting member. Of these objec- 
 tions, the only ones considered by the committee were (1) that the 
 deputy sheriff conducting one of the elections was not sworn, and (2) 
 that at another poll the deputy sheriff' conducting the election, during 
 a portion of the time, when the clerk or "writer" was absent, per- 
 formed the duties of the writer as well as those of his own office. 
 
 The deputy sheriff', who was proved by his own deposition not to 
 have been sworn, swore in the same deposition that he had "conducted 
 the election impartially and legally, according to the best of his knowl- 
 edge," but the committee held that his failure to be sworn vitiated his 
 proceedings, "a decision which they suppose to be in conformity with 
 the previous decisions of this House. " They also held that when the 
 sheriff was required to appoint a clerk or "writer" to take down the 
 names, the requirement was imperative, and all votes taken by the 
 sheriff in the absence of the writer should be rejected. Rejecting 
 these votes would give a majority to the sitting member. 
 
 It will be perceived that, from the erroneous principle assumed by the parties in 
 the outset, disfranchising, by stipulation, upward of 600 voters in a closely contested 
 election, many of whom are now proved to have been duly qualified, and a majority 
 of whom may have been, and \>y reason of the technical objections upori which 185 
 votes have been rejected, exclusive of the votes polled on the fourth day iii Wash- 
 ington County, giving the seat to either of the candidates might be doing injustice to 
 the electors of the district, for it is impossible to determine which of the candidates " 
 did, in fact, receive a majority of the legal votes. 
 
 A majority of the committee therefore recommended that the seat 
 be declared vacant. A minority, while free to confess that under the 
 peculiar circumstances in this case they would be better satisfied with 
 such a result, were nevertheless of the opinion that the sitting mem- 
 ber, having receiving a majority of the legal votes, upon the principle 
 adopted, should retain the seat. The House, after much debate, agreed 
 with the minority and confirmed the title of the sitting member by a 
 vote of 85 to 35. 
 
 The report contains a full statement of all the legal principles 
 involved in the decisions of the committee, but these being given in 
 full elsewhere (see under proper heads in Part II), it is not necessary 
 to abstract them here. 
 
 [C. &H., 702-714.] 
 
TWENTY-THIED C0KGKE8S. 97 
 
 TWENTY-THIRD CONGRESS, 1833-1835. 
 
 Committee on iLlections. 
 
 Mr. Claibokne, Virginia. Mr. Jones, Georgia. 
 
 Gkiffin, Peyton, 
 
 Hawkins, Hamer, 
 
 Banks, Hannegan, 
 
 Mr. Vanderpoel. 
 
 Cases. 
 
 (1) William Allen, Ohio. 
 
 (2) Robert P. Letcher vs. Thomas P. Moore, Kentucky. 
 
 (1) Allen. 
 
 Testimony taken ex parte, and upon unreasonable notice. Case 
 dismissed. 
 
 Report by Mr. Claiborne. 
 
 This case is, by a curious oversight, omitted from Clarke and Hall's 
 compilation. The only document ever printed in connection with it is 
 the report (House Report 110, first session Twenty-third Congress), 
 and as this report does not state the grounds of the contest, and the 
 case was not debated, it is impossible to tell upon what grounds the 
 election was contested. From the Journal of the Twenty-third Con- 
 gress it appears that on December 11, 1833: 
 
 The Speaker presented a memorial of Abraham Hyler and John Mace, on behalf 
 of themselves and others, residents of the Seventh Congressional district, in the State 
 of Ohio, complaining of illegality in the election and return of William Allen as the 
 member for said district, and declaring that Duncan McArthur received a majority of 
 the legal votes in said district, and praying that said Duncan McArthur may be 
 declared entitled to the seat now held by said- William Allen. 
 
 The memorial was referred to the Committee on Elections. On 
 December 23 and 30 Mr. Vance presented documents in relation to 
 the case, which were also referred to the Committee on Elections, and 
 on December 30 the committee reported that the election was held on 
 the second Tuesday in October, 1832, and that some time later the 
 governor, agreeably to law, examined the votes in the presence of 
 the senate and declared William Allen elected by a majority of 1 vote. 
 After the election, and before the declaration of the result, notices 
 were served on Mr. Allen notifying him that in the event of his being 
 declared elected his election would be contested, and that depositions 
 would be taken at specified times and places. These times were all 
 previous to the declaration of the result, and the times were so close 
 together, and the places so far apart, that it would have been phys- 
 ically impossible for Mr. Allen to have attended. Indeed, depositions 
 were in some cases being taken in two places remote from each other 
 at the same time. Depositions were taken at the times specified, but 
 Mr. Allen did not attend at the taking of any of them. The committee 
 considered it extraordinary that notice should be served on a candi- 
 date that in the event he should be declared elected his seat would be 
 
 H. Doc. 510 7 
 
98 DIGEST OP CONTESTED ELECTION CASES. 
 
 contested and that depositions should be taken before the declaration 
 of the result, but would nevertheless have examined the testimony 
 were it not for the circumstances of time and place above mentioned. 
 The committee unanimously recommended resolutions declaring the 
 testimony ex parte and inadmissible, and that William Allen, being 
 duly returned, was entitled to his seat unless it should afterwards 
 appear, by competent testimony, that he had not received a majority 
 of the qualified votes. The report was laid on the table, and no further 
 action had, so Mr. Allen retained the seat. 
 
 [House Report No. 110, first session Twenty -third Congress; 
 Journal Twenty-third Congress, pp. 49, 114, 138, 146.] 
 
 (2) Letcher vs. Moore. 
 
 Prima facie case., irregularities., and illegal votes. The parties vmived 
 a decision on the prima facie case; the committee unanimously found 
 that Mr. Letcher had a majority on thefax:e of the returns; the majority 
 found that Mr. Moore had the majority after eliminating illegal and 
 irregularly received votes; the minority found that Mr. Letcher had 
 the majority after the elim,ination. The House disregarded hoth repvrts, 
 attempted to decide the case itself from the evidence, and finally ordered 
 a new election, it heing impossible to determine which candidate was 
 elected. 
 
 Majority report by Mr. Jones, of Georgia; minority report by Mr. 
 Banks. 
 
 Under the laws of Kentucky it was the duty of the sheriffs of the 
 several counties of a district to meet at a specified time and place, with 
 the poll books of the several elections, "and there, by faithful compar- 
 ison and addition, ascertain the person elected in their districts." It 
 was further provided that: 
 
 After having ascertained, as before directed, the person elected in such district, 
 the sheriffs thereof shall make out a certificate of the election of the person in their 
 district, which shall be signed by all the sheriffs of the district, and which shall be 
 lodged with the sheriff of the county wherein the polls are compared, and by him, 
 together with a copy of the polls, transmitted to the secretary of state. 
 
 On the appointed day the sheriffs of all the counties met. Mr. Letcher 
 had a majority of 44 or 49 votes on the face of the poll books. So far 
 as can be gathered from the evidence and the statements of the parties 
 (it is not described in the reports), their proceedings were about as 
 follows: In one of the precincts of Garrard County there had been 
 irregularities (to be hereafter described), which, in the opinion of 
 many, ought to cause the rejection of part or all of the poll. If this 
 rejection were made, Mr. Moore, instead of Mr. Letcher, would have 
 the majority. When the sheiiffs met, the question seems to haAc been 
 discussed for two or three days, and a majority coming to the conclu- 
 sion that they had no right to inquire into the irregularities complained 
 of, the sheriff of Lincoln County left the meeting, carrying away with 
 him the poll books of his county. Mr. Moore had a majority of the 
 votes in the remaining counties, and a certificate of his election was 
 made out. It began by describing the " undersigned sheriffs," naming 
 all the counties, as if it were to be signed by all five, but one of the 
 four remaining sheriffs refused to sign it, and another refused to sign 
 it until the words "the vote of Lincoln County not taken into calcu- 
 lation " were written in just above the signatures. This certificate was 
 
TWENTY-THIRD CONGRESS. 99 
 
 deposited with the secretary of state and forwarded by the governor 
 to the Cleric of the House. 
 
 On the first day of the session, when the Clerk was in process of 
 calling the roll, wnen the State of Kentucky was reached considerable 
 discussion arose as to the right of Mr. Moore to take his seat upon the 
 certificate in the Clerk's hands. Mr. Letcher and Mr. Moore finally 
 agreed to withdraw until the completion of the roll and the election of 
 a Speaker. Two days afterwards the discussion was renewed, the 
 right of Mr. Moore to be sworn in being opposed on the two grounds, 
 (1) that the certificate was signed by only three sheriffs, whereas the law 
 expressly required it to be signed by all, and (2) that it showed upon its 
 face that the votes of only four counties were included in it, and there- 
 fore, even if it should be considered competent for the three sheriffs to 
 sign for five, the certificate only purported to show that Mr. Moore had 
 a majority of the votes in a portion of the_ district, and there was no 
 priTna facie evidence to show who had the majority in the whole dis- 
 trict. On the other hand, it was contended that whenever any power 
 was confided to a board of officers a majority constituted a quorum 
 and its acts were binding. On a prima facie question the House had 
 no right to go behind the face of the returns, and while the certificate 
 did show on its face that the vote of Lincoln County was not included, 
 it did not show that any votes were cast in Lincoln County which could 
 have been included or that the sheriff' had been present with the poll 
 books. After two days had been spent in debate and many motions 
 had been made and withdrawn or defeated, the House finally agreed 
 to resolutions instructing the Committee on Elections, when appointed, 
 to inquire and report which party was the member elected and to 
 recei^'e as evidence all testimony which had been or should be taken 
 by either party on due notice to the other. The resolutions also pro- 
 vided that pending the investigation neither of the parties should be 
 qualified as a member. The committee instructed the parties to pro- 
 cure their testimony prior to the 1st of January, and about the middle 
 of January, the testimony having been received, the parties were given 
 leave to take the papers from the committee room and prepare abstracts 
 and briefs. About the middle of March the abstracts and arguments 
 of the parties were presented, and on May 6 and 9 the majority and 
 minority reports were respectively presented. As stated above, the 
 majority report was in favor of Mr. Moore and the minority report in 
 favor of Mr. Letcher, though both reports agreed that upon the face 
 of the poll books, which the sheriffs ought to have counted, Mr. Letcher 
 would have been entitled to the certificate. The House disregarded 
 both reports and attempted to go into a detailed examination of the 
 evidence. The case was debated most of the time from May 13 to June 
 12, when the seat was declared vacant, the House being unable to 
 decide between the parties. 
 
 The majority report, after condemning the action of the sheriff of 
 Lincoln County in withholding the poll book of his county and 
 describing the times and manner in which the testimony had been 
 taken, proceeds to state eight principles which the committee had 
 agreed upon to guide them in the determination of illegal votes. 
 (These are given in full elsewhere.) Upon these principles 81 votes 
 must be rejected from the poll of Mr. Letcher and 26 from that of Mr. 
 Moore, leaving a majority for Mr. Moore of 6 or 11 votes, according 
 to whether the original vote be counted, as shown by the certificates 
 of the sheriffs or by certified copies of the poll books. In addition to 
 
100 DIGEST OP 'CONTESTED ELECTION OASES. 
 
 the above, the committee deducted 54 votes cast for Mr. Letcher, and 
 16 for Mr. Moore at Lancaster, in Garrard County, on account of the 
 following-described irregularities : 
 According to the law of Kentucky — 
 
 The justices of the county court shall at their court next preceding the first Mon- 
 day in August in every year appoint two of their own body as judges of the election 
 then next ensuing, and also a proper person to act as clerk. 
 
 And in case the county court shall fail to make such appointments, or the persons 
 appointed, or any of them, fail to attend, the sheriff shall immediately preceding 
 every election, appoint proper persons to act in their stead. 
 
 The sheriff or other presiding officer shall on the day of every election open the 
 polls by 10 o'clock in the morning. 
 
 The judges of the election and clerk, before they proceed to the execution of their 
 duty, shall take the oath prescribed by the Constitution. They shall attend to the 
 receiving until the election is completed and a fair statement make of the whole 
 amount thereof. 
 
 The persons entitled to suffrage shall, in the presence of said judges and sheriff, 
 vote personally and publicly viva voce. 
 
 One of the judges selected by the county court declined to serve, 
 and the sheriff appointed a substitute. About 9 o'clock on the morn- 
 ing of the first day of the election, the other appointed judge not hav- 
 ing appeared, the sheriff' appointed a substitute for him also and 
 opened the polls. About 10 o'clock, after twenty or thirty votes had 
 been taken, the regularly appointed judge appeared and served through 
 the rest of the election, the first judge giving way to him. The return 
 and poll books were signed by the judge appointed by the court. 
 
 On the second day of the election, shortly after 10 o'clock, the 
 sheriff' was called away by the sudden and severe illness of his wife, 
 and the deputy sheriff being absent the duty of crying the votes, 
 which the sheriff had been performing, was performed by two other 
 persons, one of whom had formerly been deputy sheriff. About 1 
 o'clock the deputy sheriff arrived and presided at the rest of the 
 election. 
 
 The committee rejected all the votes taken previous to the arrival of 
 the judge appointed by the court on the first day and during the 
 absence of the sheriff' or his deputy on the second day.^ WhUe the 
 law only provided that the polls should be opened " by 10 o'clock," and it 
 had been customaiy for the sheriffs to open them before that time, and 
 on that account the committee would not be inclined to reject votes 
 taken before 10 o'clock by the judges appointed by the court, yet as 
 the power of the sheriff' to appoint was conditioned on the failure of 
 the regularly appointed judges to appear, and they could not be said 
 to have failed to appear until 10 o'clock, any appointment by the sheriff 
 before that time was manifestly illegal. But the committee might 
 even yet have counted the votes were it not that in this case the other 
 judge did appear at 10 o'clock and acted during the remainder of the 
 election. Both judges could not have been legally appointed. 
 
 Under the law providing that the voters should, "in presence of said 
 judges and the sheriff, vote personally and publiclj' viva voce,^^ the 
 presence of the sheriff is indispensable, and all votes taken in his absence 
 must be rejected. 
 
 It is unnecessary to inquire whether the persons thus voting were qualified and 
 entitled to vote if the officers or persons presiding were not qualified to hold the 
 
 ' Although, as appeared from the minority report, there was proof that most of 
 them had been cast by legally qualified electors. 
 
TWENTY-THIKD CONGRESS. 101 
 
 election and receive the votes. The State has the right to prescribe the manner of hold- 
 ing the election, and those votes were not taken in the manner prescribed by the laws 
 of Kentucky, and were therefore illegally received. 
 
 The cases of Jackson vs. Wayne, Latimer w. Patton, John Richards, 
 Lyon vs. Smith, McFarland vs. Purviance, Spaulding vs. Mead, 
 McFarland rs. Culpepper, Bassett vs. Bayley, and Easton vs. Scott 
 were cited as confirming similar views. 
 
 Deducting these votes, in addition to those already deducted, would 
 give a majority to Mr. Moore of 44 or 49 votes, just the amount shown 
 for Mr. Letcher on the face of the returns. 
 
 The minority report, by Mr. Banks, is signed by him and Mr. Griffin, 
 and was also understood to represent in general the views of the chair- 
 man, Mr. Claiborne, who was preventea from drawing it up by seri- 
 ous illness. It contains an elaborate argument (a portion of which 
 will be quoted) against the doctrine that irregularities on the part of 
 ministerial officers, not affecting the substance of the election, can 
 cause the rejection of the votes of qualified electors. Mr. Letcher is 
 shown to have a majority on the poll books, and — 
 
 This majority appearing on the poll books is decisive in favor of Mr. Letcher's 
 right permanently to occupy the seat as the chosen representative of the district, 
 unless, from the facts proved in the case, the House should decide that there has 
 been no election, or should determine to make such deductions from the poll as 
 will leave the majority of legal voters in favor of Mr. Moore. 
 
 It is difl&cult to perceive the exact ground on which the votes given at Lancaster 
 before 10 o'clock on the first morning of the election are rejected by the majority. 
 
 The majority say they would not reject them on the ground that 
 they were given too early if the judge appointed by the court had 
 attended when the polls were opened, and intimate that they would 
 not have rejected them if the judge appointed by the sherifl' had served 
 throughout the election. On this basis it is difficult to see why the 
 votes given after 10 o'clock ought not just as reasonably to be rejectied 
 as those given before 10 o'clock. Under the law the sheriff had dis- 
 cretion to open the polls before 10 o'clock, which in this case was exer- 
 cised in good faith. On account of the prevalence of the cholera it 
 was thought advisable not to collect large crowds, and the sheriff' very 
 properly opened the polls early so as to give the voters as much time 
 as possible. To say that the sheriff had discretionary power to open 
 the polls before 10 o'clock, but could not exercise his power of 
 appointment unless he waited to open them until 10 o'clock, was to 
 limit his power in a way not intended by the laws. And even if the 
 sheriff had opened the polls at an unreasonably early hour or from 
 less laudable motives, this could not make illegal the votes of duly 
 qualified electors unless the circumstances were such as to vitiate the 
 whole election. 
 
 The motives of the officers of the election can have no effect upon the rights of 
 the electors; and it is difficult to conceive how their rights could be affected even by 
 the conduct of the officers, unless that conduct had defeated, or was at least calcu- 
 lated to defeat, the great object of the law — a full, fair, and free election. 
 
 If the subject of controversy were a dispute as to some of the emolu- 
 ments of the judges, the dispute as to which judge had the technically 
 legal appointment might be important. 
 
 But neither the right of election nor the right of the person elected is derived from 
 the sheriff. The election itself is not his act, but the act of the people, who have a 
 preexisting right to make the election. And the agency of the sherifl, judges, and 
 clerk is created for the sole pufpose of enabling them to exercise that right in a regu- 
 
102 DIGEST OF CONTESTED ELECTION OASES. 
 
 lar and orderly manner, and to make out and preserve the proper evidences of their 
 act. The subject of inquiry is an election by the people; the fact to be ascertained 
 is who has been chosen by the majority of the qualified electors. 
 
 All but one or two of the votes received before 10 o'clock are found 
 to have been cast by legally qualified electors. Now, if the judge had 
 been the merest usurper instead of, as in this case, acting at least 
 under color of authority, the effect of his action could have been no 
 more than to destroy the prima facie character of the record made 
 under his supervision. Even then actual proof of the legality of the 
 votes would be all that could be required to sustain them. But the 
 majority of the committee have decided the votes void and incapable 
 of being made valid by proof. 
 
 But whether the proceedings of the sheriff were strictly regular or not, we had not 
 anticipated that the legal votes given before 10 o'clock on the first day, or those 
 given in the absence of the sheriff on the second day, would be rejected by the com- 
 mittee, because the alleged irregularities, if, indeed, they were irregularities, did not 
 affect the substance of the election nor the rights of the electors, while the rejection 
 of these votes would affect the substance of the election, and vitally affect the elective 
 franchise, because the disfranchisement of these legal voters would change the 
 majority in the present case. It would thereby defeat the whole object of the consti- 
 tution and iskws of Kentpcky, and of the right of suffrage itself, by giving the choice 
 of the Eepretentative toSie minority of the qualified electors who actually voted; 
 ancTb^S^SQig^dj^jllQ^EangethMfia^eAty, and thereforewould not affect the result 
 Sc c^, itwSffld eatpbl i ch y^precedent by which that effect might be 
 . future, and one by which the oflicers of election, the mere instruments 
 br giving facilities and effect to the right, might at any time, by an acci- 
 dental or^hat is worse, by an intentional variation from the law in some formal 
 po».t^]jj).^ """'^"P'-Ypfl -^^ Anay^aA uulmpor^nt by others, virtually disfranchise a 
 pairffonof the electors, and at' thei r ' pl e aa r rf e give the choice to the minority, by 
 JWbich. means the election would, in effect, be taken out of the hands of the people 
 and placed wholly in the power of the ministerial oflScers. 
 
 The votes giv«n on the second daj', during the temporary- absence 
 of the sheriff', ought equally to be considered legal. All but one or 
 two of these are ^so proved to have been cast by qualified electors. 
 The presence of the sheriff is not in any case essential. He is not required 
 to be especially sworn. He is not expressly required to attend through- 
 out the election, as the judges are. The onh' duty expressly enjoined 
 on him is that of opening and closing the polls and appointing judges 
 in case of vacancy. The voters are required to give their votes in the 
 presence of the judges and the sheriff, which shows that the presence 
 of the sheriff is presumed, but does not imply that it is e.ssential. It 
 is provided that unless the sheriff or one of the judges knows the 
 voter to be qualified he shall take a certain oath. The presence of 
 the sheriff as an accredited witness is thus convenient, but not imper- 
 ative. In his capacitj' as sheriff there is no imperative reason why 
 the sheriff' may not be temporarily absent, and if he is to be construed 
 as constituting, with the two judges, a board of election officers, a 
 majority of the board can act in the absence of one member. 
 
 A further answer to the objection is that we are not merely to inquire what are 
 the strictly legal dutie-s of the several officers of the election, and whether they have 
 performed them with exactness, but that a far more important part of the inquiry 
 is to determine what effect a departure from the formal line of their duty bv the 
 ofiicers is to have upon the rights of electore whose votes have been given ait the 
 times and places and substantially in the manner prescribed by^the constitution 
 and laws. The true question is not whether every officer appointed to give 
 security and convenience to the exercise of the right of suffrage has done every- 
 thing that by law he ought to Jo, but whether everything has been done that 
 was in fact necessary to secure the full and free exercise of the right; whetlaer 
 the right has been, in fact, so exercised. If it has been so exercised, and the 
 
TWENTY-THIRD CONGRESS. 103 
 
 suffrages of a majority of qualified electors have been given in favor of any indi- 
 vidual, an election has been made, and that individual is the person elected. His 
 right is identified with the election itself and the right of the electors; all must be 
 sustained or sacrificed together. If, then, in an ordmary transaction it is a maxim 
 of reason and of law that a thyjg fairly done and lawful in itself is entitled to a 
 favorable construction, that it may rather prevail than perish, how strong is our 
 obligation, when an election has been fairly made by the full and free exercise of 
 the elective franchise, to sustain it even by the most favorable constructions, rather 
 than to destroy it, and with it the most important of human rights, and by nice and 
 technical objections? When such an election has in fact been made, no decision 
 which sustains the election, and the individual rights of the electors, and the choice 
 of the majority can furnish so dangerous a precedent as that will afford which 
 defeats all or any of their rights on account of a mere technical breach of duty on the 
 part of the officers or of any minute variation from the formal requisitions of the law. 
 
 As this is the first case in which the effect of technical violation of 
 the law on the validity of the election was elaborately discussed, and 
 as the decision of the minority on this point was adopted by the House 
 (though neither report was adopted as a whole) and nas been followed 
 in the majority of subsequent decisions, it has been thought proper to 
 quote thus fully. 
 
 The minority report then goes into an elaborate review of all the 
 illegal votes charged, and cornea to the conclusioiU;hat af teryttie proper 
 deductions have been made on both /ides, Mr. ]fetcher's tme majority 
 
 is 105. a/^X- ^^"'^•""^C^ 
 
 All the testimony was ordered printed, and the House prOT&edda-tp 
 an examination of the details of the case. The votes taken in Lan- 
 caster, Garrard County, before 10 o'clock on the first day, and in the 
 absence of the sheriff on the -rrf m r l i T rr rr d nn l iiii i 1 1 i _ i 1 m i iiiii li im nf 
 Mr. Banks. The votes of theological students in Centre Colle^^ 
 which had been rejected by the majority of the committee, were als^ 
 counted. The committee had held that where persons who appeared j 
 on the polls as voting for Moore made oath that they voted for Letcher, 
 "yotes recorded upon the poll books as given to one candidate can not 
 be changed and transferred to the other by oral testimony." This 
 decision was overruled by the House, and the votes counted for Letcher. 
 The committee had refused to reject votes upon the testimony of one 
 witness that a voter was unknown in the county, but had rejected a 
 number on the testimony of more than one witness. These were all 
 restored by the House. The decisions of the committee in regard to 
 a large number of individual cases were also overruled. Finally, on 
 the 11th of June, Mr. McKay, of North Carolina, moved that the 
 report of the Committee on Elections be committed to a Committee of 
 of the Whole House, with instructions "to report a resolution for a 
 new election for a member of this House from the Fifth Congressional 
 district in Kentucky, it being impracticable for this House to deter- 
 mine with any certainty who is the rightful Kepresentative of the said 
 district. " This resolution was passed, after a debate of two days, by 
 a vote of 114 to 103, so the seat was declared vacant. 
 
 Among the many motions made during the last two days' debate 
 was one to prefix to the resolution a preamble reciting thatr— 
 
 Whereas on the face of the returns Mr. Letcher had a majority of 49 votes, and 
 the Committee on Elections had reported a majority for Mr. Moore of 44 votes; 
 
 And whereas this House, by sundry resolutions, has added to and" subtracted from 
 the votes of each party in the following manner, to wit: [giving a detailed tabular 
 statement showing that up to the present point of consideration Mr. Letcher had a 
 majority of 11 votes] ; 
 
 And whereas it appears, by motions now pending before this House, that sundry 
 
104 DIGEST OF CONTESTED ELECTION CASES. 
 
 other votes are yet in controversy between the parties, and the House having stopped 
 the investigation upon those votes which were alleged to have been illegally received 
 by T. P. Moore. 
 
 This motion was characterized as "a direct insult upon the majority 
 of the House," but the accuracy of the table given was not disputed. 
 So it seems to have been charged that the majority, finding the detailed 
 investigation too favorable to Mr. Letcher, determined to cut the mat- 
 ter short. The parties submitted voluminous arguments to the com- 
 mittee, but they contain nothing important to an understanding of 
 the merits of the case beyond tne facts and arguments here given. 
 
 [C. &H., 715-850.] 
 
TWENTY-FOURTH CONGRESS. 105 
 
 TWENTY-FOURTH CONGRESS, 1835-1837. 
 
 Committee on Elections. 
 
 Mr. Claiborne, Virginia, Mr. Kilgore, Ohio, 
 
 Griffin, South Carolina, A. Buchanan, Pennsylvania, 
 
 Hawkins, North Carolina, Maury, Tennessee, 
 
 Hard, New York, Boyd, Kentucky, 
 
 Mr. Burns, New Hampshire. 
 
 Case. 
 David Newland v. James Graham, North Carolina. 
 
 Newland vs. Graham. 
 
 Illegal votes. Ballots in wrong ioxes. Time of service of notice of 
 contest, and application for extension of time to take testimony. Com- 
 mittee repm^tfoi- petit imier. Seat declared vacant. 
 
 Report by Mr. Boyd. 
 
 The sitting member objected to the depositions on the ground of the 
 lateness of the service of notice of contest and the insuiBciency of the 
 notices to take depositions; but the committee held that as the pro- 
 ceedings had been in accordance with the law of North Carolina, and 
 both sides had taken testimony in the same way and had been repre- 
 sented at the taking of all the testimony the depositions ought to be 
 received.' The sitting member then asked for an extension of time to 
 take testimony, but as it appeared to the committee that he had already 
 had enough time the application was refused. 
 
 The majority of 7 votes returned for the sitting member was attacked 
 chiefly on the ground of illegal votes. The only evidence that 35 of 
 these voters voted for the sitting member consisted of proof of state- 
 ments made by the voters after the election. As under the law of the 
 State the election was by ballot, and voters could not be compelled to 
 testify how they voted, contestant contended that this was the best 
 evidence the case admitted of; but the committee held that it was 
 inadmissible. On the other evidence the committee found enough 
 illegal votes to give the petitioner a majority of 4 votes, and by count- 
 ing votes illegaUj^ rejected this majority was increased to 12. Certain 
 ballots for Congress were alleged to have been placed by the voters in 
 the legislative box, and ballots for candidates for the State legislature 
 in the Congressional box. The judges of election, deeming the matter 
 a mere mistake, changed the ballots to the proper boxes and counted 
 them. The committee found that the precedents favored not inter- 
 fering with the decision of the judges in such cases, and argued that 
 this was the proper course, but left the question to the House to 
 decide. 
 
 In the House a motion to extend the time for taking testimony was 
 lost. The case was debated at various times for several months. On 
 the final vote the resolution declaring the sitting member not elected 
 was passed by a vote of 114 to 87. The resolution declaring petitioner 
 elected was defeated, 99 to 100. The seat was then declared vacant. 
 
 [1 Bart., 5-9.] 
 
 'There was no law of Congress on the subject in force at this time. 
 
106 DIGEST OF CONTESTED ELECTION CASES. 
 
 TWENTY-FIFTH CONGEESS, 1837-1839. 
 
 Committee mi Elections. 
 
 Mr. A. Buchanan, Pennsylvania, Mr. Townes, Georgia, 
 
 Griffin, South Carolina, Bronson, New York, 
 
 Hawkins, North Carolina, Pennybacker, Virginia, 
 
 KiLGOEE, Ohio, Hastings, Massachusetts, 
 
 Mr. Maury, Tennessee. 
 
 -(At the third session Messrs. Rives, of Virginia, and Swearingen, 
 of Ohio, took the places of Messrs. Kilgore and Pennybacker.) 
 
 (1) Samuel J. Gholson and John F. H. Claiborne, Mississippi. 
 
 (2) James D. Doty vs. George W. Jones, Wisconsin Territcny. 
 
 (1) Gholson and Claiborne. 
 
 Called election to fill vacancy pending regular election. The commit- 
 tee reported and the House voted that the members elected at the called 
 electxon were msmhers of the Twenty-fifth Congress., hut at tJis second 
 session this decision was rescinded., ana the seat vacated., the Hw.ise refus- 
 ing also to seat the persons elected at the regular election. 
 
 Reports by Mr. Buchanan. 
 
 Under the laws of Mississippi Representatives in Congress were 
 elected in November of the odd-numbered years, and there were con- 
 sequently no regularly elected Representatives from the expiration of 
 a Congress on March 3 until shortly before the usual time of the meet- 
 ing of the next Congress in December. The Twenty -fifth Congress, 
 however, was called by the President to meet in extra session in Sep- 
 tember, and the governor, deeming the existing vacancy one which he 
 was authorized by the Constitution to issue writs of election to fill, 
 issued writs in due form, appointing an election for members of the 
 Twenty-fifth Congress, to serve until superseded by the members 
 elected at the regular election in November. The members elected at 
 this election were sworn in, but at their own request the question of 
 the regularity of their election was referred to the Committee on Elec- 
 tions. The committee reported the above facts, and also that they were 
 (with one exception) of the opinion that the governor in restricting the 
 election to the time remaining before the regular election had tran- 
 scended his power, and that if the members were elected at all they 
 were elected for the whole term. The restricting words in the writ 
 might, however, be regarded as mere surplusage, and did not invalidate 
 the election. The election was valid if a vacancy had "occurred" so 
 as to authorize the governor to issue writs of election to fill it. A 
 majority of the committee were of the opinion that the election was 
 valid, and reported resolutions, which were passed by the House by a 
 vote of 118 to 101, declaring that the sitting members were elected 
 members of the Twenty-fifth Congress, and were entitled to their 
 seats. 
 
TWENTY-FIFTH CONGRESS. 107 
 
 On account of this decision of the House, Messrs, Grholson and Clai- 
 borne announced to the people of Mississippi that they would not be 
 candidates at the November election. When that election was held, 
 however, about half of the voters cast votes for Covigress, and Messrs. 
 Prentiss and Ward, having received a majority of these votes, pre- 
 sented their credentials and applied for seats. The committee reported 
 the facts in the case, without any conclusions. The only new fact 
 brought out in this report was that the proclamation of the secretary 
 of state and the credentials of Messrs. Gholson and Claiborne had only 
 declared them elected "for the called session." The committee, how- 
 ever, said that this would not have changed their former report. 
 After a somewhat lengthy debate the House "rescinded" its former 
 resolution, and declared — 
 
 That Messrs. Gholson and Claiborne are not duly elected members of the Twenty- 
 fifth Congress. 
 
 This resolution was passed by a '^ote of 119 to 112. A resolution 
 was then passed by a vote of 118 to 116 declaring that Messrs. Pren- 
 tiss and Ward were not entitled to seats. This latter decision was 
 apparently based on the ground that, owing to misunderstanding, the 
 election at which these gentlemen had been elected was not a full 
 expression of the popular will. The governor of Mississippi was 
 notified that the seats were vacant. 
 
 [IBart., 9-16.] 
 
 (2) Doty vs. Jones. 
 
 Date of commencement of term of Delegate from Wisconsi?i. Report 
 for contestant. Contestarit seated. 
 
 In October, 1835, Mr. Jones was elected a Delegate from Michigan 
 Territory, for a term of two years, and took his seat in the December 
 following, at the first session of the Twenty -fourth Congress. In 1836 
 Michigan became a State and the Territory of Wisconsin was created. 
 Mr. Jones was elected Delegate from the new Territory, for a term 
 of two years, and in December, 1836, after having sei'ved only one 
 year as Delegate from Michigan, he qualified as Delegate from 
 Wisconsin. Under this election he served two years — the last year 
 of the Twenty-fourth Congress and the first year of the Twenty -fifth. 
 In September, 1838, Mr. Doty was elected Delegate from Wisconsin, 
 for a term of two years, and in December at the third session of the 
 Twenty -fifth Congress he presented his credentials and asked to be 
 qualified immediately for his two years term, which would thus run until 
 the middle of the Twenty.-sixth Congress. There was no question of 
 his election and of his right to serve for two years, but the question 
 was whether his term began immediately or not until the beginning 
 of the next Congress. If his term did not immediately begin, either 
 Mr. Jones would have to serve three years from the date of his qual- 
 ification, under one election, or the Territory would have to go for a 
 year unrepresented. Mr. Jones claimed that although he had qual- 
 ified as Delegate from Wisconsin in December, 1836, he had at that 
 time still one year to serve as Delegate from Michigan, and that his 
 term as Delegate from Wisconsin did not really begin until the fol- 
 lowing March. Counting from this time, he could serve through the 
 Twenty-fifth Congress without going beyond the two years. But 
 the committee held that the corporation of the Territory of Michigan 
 
108 DIGEST OF CONTESTED ELECTION CASES. 
 
 having expired in 1836, all the offices connected therewith expired, 
 and that Mr. Jones had already served two years as Delegate from 
 Wisconsin. The office of delegate was wholly a creation of law, and 
 there was no necessity for the term to begin and end at the same time 
 as the terms of Representatives. It was claimed that the act of 3d of 
 March, 181Y, which provided that Territorial Delegates should be 
 elected "every second year for the same term of two years, for which 
 members of the House of Representatives of the United States are 
 elected," required that the term should begin at the same time as that 
 of Representatives. The committee were (but somewhat doubtfully) 
 of the opinion that this was merely a requirement that the terms of 
 Delegates should be of the same length is those of Representatives, 
 and not that they should begin and end at the same time. But at any 
 rate the act of 1817 was simply legislation, and might be superseded 
 by subsequent legislation, and the committee were of the opinion that 
 the act creating the Territory of. Wisconsin contemplated that the 
 Territory should have immediate representation in Congress. Mr. 
 Jones's term thus began legally on the date on which he actually 
 qualified, December, 1836; he had served two years, and his term had 
 consequently expired and that of his successor begun. The committee 
 accordingly recommended resolutions declaring Mr. Doty entitled to 
 the seat, which, after a short debate, were passed by the House by a 
 vote of 166 to 25. 
 [1 Bart. 16-18.] 
 
TWENTY-SIXTH 0ONGKE8S. 109 
 
 TWENTY-SIXTH CONGRESS, 1839-1841. 
 
 Committee on Elections. 
 Mr. Campbeul, South Carolina, Mr. Brown, Tennessee, 
 
 Rives, Virginia, Fisher, North Carolina, 
 
 Fillmore, New York, Smith, Connecticut, 
 
 Medill, Ohio, BoTTS, Virginia, 
 
 Mr. Crabbe, Alabama. 
 
 (1) The New Jersey case. 
 
 (2) C. J. Ingersoll vs. Charles Naylor, Pennsylvania. 
 
 (1) The New Jersey Case. 
 
 Right to seats pending contest. Illegal votes; irregularities. Con- 
 testing members admitted pending the contest, and their title confirmed 
 on final determination. 
 
 This celebrated case has a historical importance and interest out of 
 all proportion to its value as a legal precedent, and to treat it in a 
 manner at all commensurate with that historical importance would 
 require more space than the purposes of this work would justify. No 
 attempt will therefore be made to outline the facts and history of the 
 case in much more detail than has been done with other cases;" and the 
 quotations from the reports will be chiefly confined to the legal ques- 
 tions involved. The importance of this case is not derived from any 
 particular novelty or importance in its issues, but simply from the 
 fact that the political control of the House turned on its determina- 
 tion, and that on this account it received a more elaborate discussion, 
 both in the committee and in the House, than has ever been given to 
 any other case. It is interesting also to note that this is the first case 
 in which the charge, now so common, that the majority of the com- 
 mittee were controlled in their determinations by partisan considera- 
 tions, was solemnly and directly made by a minority of the committee 
 in a report to the House. ^ 
 
 The State of New Jersey was entitled to six Representatives in Con- 
 gress, which, under the State law, were elected from the State at large. 
 At the election for members of the Twenty -sixth Congress, Josepii F. 
 Randolph received an undisputed majority as one of these Represent- 
 atives, but as to the other five there was a dispute. Counting the 
 votes as actually cast at all the various voting places in the State the 
 Democratic candidates, Messrs. Vroom, Dickerson, Kille, Cooper, 
 and Ryall had majorities ranging from 30 to 200 votes. But the 
 county clerks of Middlesex and Cumberland counties refused to in- 
 
 ' A similar charge had been publicly made in debate against the majority of the 
 House (but not of the committee) in the elaborately discussed case of Letcher vs. 
 Moore, m the Twenty-third Congress ; but otherwise the custom of imputing none but 
 judicial motives to the committee seems to have been studiously followed. Since 
 this case the partisan element has generally been frankly conceded, and in recent 
 times, as is well known, even greatly exaggerated. 
 
110 DI0EST OP CONTESTED ELECTION CASES. 
 
 elude in their certificates of the votes of their counties the votes 
 returned to them from the townships of Millville and South Amboy. 
 As these townships gave the Democratic candidates majorities of about 
 350 votes, the Whig candidates, Messrs. Aycrigg, Maxwell, Halsted, 
 Stratton, and Yorke, had majorities of 200 or 300 votes in the rest of the 
 State. These gentlemen presented themselves to the House with the 
 usual certificates of election from the governor; the rival delegation 
 presented certificates from the secretary of state certifying that they 
 had received a majority of the votes cast. The House at the time was 
 so closely divided politically that if either set of claimants was admitted 
 it would give the majority to the party to which they belonged; if 
 neither set was admitted the Democrats would have a majority. The 
 House remained unorganized for two weeks, with the question of the 
 titles of the New Jersey claimants continuously under debate. At the 
 end of this time it was decided to permit neither set of claimants to be 
 recognized by the clerk as members, thus giving the organization of 
 the House to the Democrats. A Committee on Elections was appointed, 
 and on January 13, 1840, the committee were instructed "to inquire 
 and report who are entitled to occupy, as members of this House, the 
 five contested seats from that State," and given power to send for 
 persons and papers. 
 
 The parties presented to the committee written arguments and state- 
 ments of the facts they expected to prove and alsp a large amount of 
 testimony'. The committee examined this testimony with reference 
 to its competency, and threw out a large portion of it as being eas parte 
 and taken without notice. It was then proposed to make a prelimi- 
 nary report upon the question of the right to the seats pending the final 
 determination of the case, on its merits, and 8 of the 9 members were 
 in favor of this proposition, but it was found that there was a majority 
 of 6 to 4: against reporting in favor of each set of claimants, and it was 
 therefore determined to set the second Monday in April, 1840, for 
 proceeding to a final determination of the case on the merits, the parties 
 in the meanwhile going to New Jersey to take testimony. 
 
 On February 28, 1840, the House instructed the committee — 
 
 To Teport forthwith which 5 of the 10 individuals claiming seats from the State of 
 New Jersey received the greatest number of lawful votes from the whole State for 
 Representatives in the Congress of the United States at the election of 1838, in said 
 State, with all the evidence of that fact in their possession: Provided, That nothing 
 herein contained shall be so construed as to prevent or delay the action of said com- 
 mittee in taking testimony or deciding the said case upon the merits of the election. 
 
 The words "forthwith" and "lawful," italicised above, were the 
 subjects of a heated controversy in the House. The word "lawful" 
 was not in the resolution as originall}^ introduced in the House, and 
 was introduced by a vote of 97 to 96, decided by the casting vote of 
 the Speaker. An unsuccessful attempt was also made to strike out the 
 word "forthwith." 
 
 The committee were divided upon the question of the proper con- 
 struction to be given to this resolution. The majority were of the 
 opinion that the introduction of the word "lawful," especially in view 
 ot the retention of the word "forthwith" and the proviso, could not 
 under all the circumstances make the resolution simply mean that the 
 original intention of the committee was to be adhered to and no deci- 
 sion roiiched until all the questions of illegal votes were settled. The 
 House certainly could not intend a purgation of illegal votes in advance 
 
TWENTY-SIXTH CONGKESS. Ill 
 
 of the reception of the testimony which would enable that purgation 
 to be thorough and just. 
 
 There is but one other basis left, and that is the prima facie case upon the returns 
 of the local officers of the several polls; and, the nature of the controversy taken 
 into consideration, it can scarcely be doubted that to this basis the resolution looked. 
 
 But, on the other hand, the committee could not "entirely overlook" 
 the word "lawful." On this subject they said: 
 
 The committee are therefore of opinion that they correctly construe that word with 
 the context when they limit its signification to that prima fade lawfulness which 
 arises upon their reception at polls held in conformity with law. 
 
 Upon this basis they proceeded to examine the questions raised 
 against the counting of the two precinct returns not certihed by the 
 county clerks and one other precinct return asked to be rejected for 
 fraud. If these returns were rejected the commissioned (Whig) mem- 
 bers would have a majority of the votes; otherwise, the contesting 
 (Democratic) members received the majority. An examination of the 
 testimony so far pi'esented showed that it was insufficient to establish 
 any of the charges, and the committee therefore reported that the 
 contesting (Democratic) delegation appeared prima facie to have 
 "received the greatest nvimber of lawful votes." 
 
 The minority protested against any report or determination of the 
 case while the parties were still engaged in taking testimony, under 
 an express understanding that no further action would be had until 
 the date fixed for closing the taking of testimony, and insisted that 
 the instructions of the House to report who had "received the great- 
 est number of lawful votes" could not be carried out by reporting 
 who received the greatest number of actual votes in advance of any 
 determination or opportunity for determining the legality of any of 
 them. But the House, on March 16, 1840, by a vote of 111 to 80, 
 admitted Messrs. Dickerson, Vroom, Ryall, Cooper, and Kille, the 
 contesting delegation, to hold their seats without prejudice to the final 
 rights of the other claimants. 
 
 On April 16 the testimony taken by the parties was laid before the 
 committee, but as it was exceedingly voluminous and not arranged 
 with reference to the issues to which it referred it was delivered 
 to the parties to be prepared and arranged. It was subsequently 
 printed, and on June 8 the committee proceeded to the final examina- 
 tion. Besides the charges against the validity of the returns from 
 two polls there were some 600 charges of illegal votes, and the 
 committee treated each of these individual votes as a distinct contro- 
 versy. The testimony was examined, and separate arguments heard 
 and separate votes taken on the question whether each voter voted, 
 whether his vote was illegal, and whether it was shown for which 
 candidates he voted. As a result of all the findings of the majority 
 of the committee upon these individual questions the majorities for 
 each of the members now holding the seats were increased. As a 
 result of the findings of the minority the majorities of three of 
 them were overcome and majorities shown for their opponents, while 
 the majorities of the other two were decreased. The largest dif- 
 ferences in the findings of the two portions of the committee were 
 based on a difference over the law of evidence in regard to alien 
 votes. The committee unanimously held that votes received by the 
 election officers were prima facie legal, and could not be thrown 
 
112 DIGEST OF CONTESTED ELECTION CASES. 
 
 out until their illegality was affirmatively shown. The majority held 
 that this illegality must be shown to the exclusion of a reasonable 
 doubt. Applying these principles to alien votes, the majority held 
 that the burden was on the parties attaciting the votes to show not 
 only that the voters were foreign born, but also that they had never 
 been naturalized. To this the minority objected that it was requiring 
 the proof of a negative, and that unless the voter chose to testify and 
 incriminate himself this negative could only be proved by searching 
 the records of every court in the United States competent to grant 
 natui-alization. They held that the fact of foreign birth being proved 
 the burden shifted to the party sustaining the vote to show naturaliza- 
 tion. They complained that the majority of the committee, knowing 
 that a rule attaching undue importance to the reception of a vote at 
 the polls would necessarily result more favorably to the candidates 
 having the priuia facie majority, had not only adopted such a rule, 
 but had also applied it unfairly and with even more severity than its 
 terms required. Referring to. the rules of evidence which they alleged 
 the majority had disregarded, they said: 
 
 To suppose any member of the committee to be ignorant of a rule of law so old 
 and universal, and founded in so much good sense, would be to justify his integrity, 
 and maintain his impartiality at the expense of his judgment and of every qualifi- 
 cation required for the proper discharge of the duties of a committee on elections. 
 We disclaim all design of charging the course adopted by the majority to corrupt 
 intentions, but we are very reluctant to embrace the other branch of the alternative, 
 and conclude, therefore, that some strange prejudice must have taken possession of 
 the mind and led the judgment captive at will. 
 
 It is not necessary to give in detail the other rules adopted in regard 
 to illegal votes; they are all referred to elsewhere. One precinct 
 return was objected to on the ground that one of the officers of elec- 
 tion was not qualified, but the preponderance of the evidence seemed 
 to show that he probably was qualified, and his failure afterwards to 
 return the regular certificate of his qualification ought not to disfran- 
 chise the voters. The other precinct was asked to be rejected on the 
 ground that the officers of election had fraudulently failed to count 8 
 votes as they were cast. The testimony to account for the discrep- 
 ancy was not in all respects conclusive, but it appeared so fully that 
 the election was honestly and fairly conducted that the committee 
 would not reject the return. The committee were unanimous in 
 counting these returns. 
 
 The report of the committee was adopted on July 17, 1840, without 
 debate, by a vote of 101 to 22 — just a quorum, many members refus- 
 ing to vote. 
 
 None of the debates or proceedings of the committee, and only por- 
 tions of the reports in this case, are given in 1 Bartlett, and the above 
 facts have been lai'gely derived from the original documents. 
 
 [1 Bart., 19-33, also Eeport 506, first session Twenty-sixth Con- 
 gress.] 
 
 (2) Ingeksoll r.y. Naylor. 
 
 Fraud; election officers not sworn. Report for contestee. Contestee 
 retained the seat. 
 
 Report by Mr. Fillmore. 
 
 The contestant asked that the returns of seven precincts, which gave 
 an aggregate majority for the sitting member larger than his majority 
 
TWENTY-SIXTH CONGKK88. - 113 
 
 in the district, be thrown out for fraud. The charge against six of 
 these precincts was that the registering officers fraudulently added 
 to the registry lists a large number of names of persons either not in 
 existence or not having a right to vote. The testimony to sustain 
 this charge was chiefly hearsay, and was thrown out by the committee 
 on this ground. The rest was verj^ remotely inferential, or based on 
 a so-called political census, which the committee found to be "too 
 vague and uncertain to lay the foundation for any judicial decision." 
 If any names were improperly added to the registry list, the wrong 
 was corrected before the election, and no evil resulted. 
 
 The only other important charge was that in one precinct the judges 
 of election, instead of being properly sworn to perform their duties, 
 were sworn upon a Philadelphia directory instead of the Bible, and 
 were sworn "to do justice to their party." The only evidence of this 
 mock oath was the testimony of one of the election officers, who was 
 three times sworn in the case. The first time he refused to testify on 
 this question on the ground that he might incriminate himself, the 
 second time he did not mention it, and the third time he read his testi- 
 mony from a paper which he refused to allow to be inspected. His 
 conduct in this and other respects tended to discredit his testimony. 
 He was directly contradicted by all the other officers of election and by 
 the. justice of the peace who administered the oath. There was no 
 oath on file in the prothonotaTy's office, but it appeared that the papers 
 'in this office had been very carelessly kept. All the election papers 
 had been taken to the State capital once, and some of them had been 
 taken put at various times by other persons. The resolution reported 
 by the committee, sustaining the right of Mr. Naylor to his seat, was 
 passed by the House after a brief debate. 
 ■ [1 Bart., 33-FS7.] 
 
 H. Doc. 510^ — 8 
 
114 DIGEST OF CONTESTED ELECTION CASES. 
 
 TWENTY-SEVENTH CONGKESS, 1841-1843. 
 
 Com/mittee on Elections. 
 
 First session. 
 
 Mr. Halsted, New Jersey, Mr. Gamble, Georgia, 
 
 Blair, New York, A. V. Brown, Tennessee, 
 
 Cravens, Indiana, Medill, Ohio, 
 
 Borden, Massachusetts, J. W. Williams, Maryland, 
 
 Mr. Summers, Virginia. 
 
 Second session. 
 
 Mr. Halsted, New Jersey, Mr. Barton, Virginia, 
 
 Blair, New York, Turney, Tennessee, 
 
 Cravens, Indiana, Houston, Alabama, 
 
 Borden, Massachusetts, Reynolds, Illinois, 
 
 Mr. Randall, Maine. 
 
 Ca^es. 
 
 {!) Joshua A. Lowell, Maine. 
 
 (2) David Levy, Florida Territory. 
 
 ,, (1) Lowell. 
 
 False retwrns. Report for sitting inemher. Sitting memher retained 
 the seat. 
 
 Two petitions were received asking for an inquiry into the election 
 of Mr. Lowell. A majority vote was required in Elaine to constitute 
 an election, and at the first trial no election was had. At the second 
 trial Mr. Lowell was returned as receiving a majority of 4 votes over 
 all and given the certificate of election. The petitioners alleged and 
 offered to prove that in one precinct the returns showed 63 votes for 
 the sitting member and none for any other candidate, whereas another 
 candidate did receive 29 votes. Other but less important allegations 
 were also made. The sitting member denied the allegations and 
 objected to all the evidence as cr parte. The committee considered 
 the evidence, but it seems to have been insufficient to sustain the 
 charges, as the committee, without formal report, merely recommended 
 a resolution declaring the sitting member entitled to his seat, which 
 was adopted without division. 
 
 [1 Bart., 37-41.] 
 
 (2) Levy. 
 
 Citizenship of sitting memher. First report to vacate seat. Second 
 majority report for sitting memher; minority report to vacate seat. 
 Wo action l)y the House. 
 
 First report by Mr. Halsted; second majority report by INIr. Bar- 
 ton; minority report hy Mr. Halsted. 
 
 A remonstrance from citizens of Florida T>'as presented protesting 
 against the right of Mr. Levy to sit as Delegate from Florida, on the 
 
TWENTY-SEVENTH CONGRESS. 115 
 
 ground that he was not a citizen of the United States. It appeared 
 that Moses Levy, the father of the sitting member, was a native of 
 Morocco, but that at the date of the birth of his son he was a subject 
 of the King of Denmark. David Levy was born in the West Indies. 
 In 1820 Moses Levy purchased a large tract of land in Florida, with 
 the intention of settling upon it. His son was then but a child. In 
 the early part of 1821 the father came to Philadelphia, and took out 
 his declaration of intention to become an American citizen. He then 
 sailed for Florida, and arrived in St. Augustine subsequent to July 
 10, 1821. Florida was formally transferred to the United States on 
 July 17, 1821, and there was a dispute as to whether he had arrived in 
 Florida before that date, or not until a few days later. He had received 
 a certificate of inhabitancy, and a certificate of naturalization had been 
 issued to him by Governor Jackson. David Levy, the son, attended 
 school in Norfolk until 1827, when, still under age, he went to Florida. 
 He claimed citizenship under the naturalization of his father, and this 
 claim had been sustained by a recent decision of the court of appeals 
 of the Territory. 
 
 The committee reported that the sitting member was not a citizen of 
 the United States, and was therefore disqualified to sit. The House 
 had the undoubted right to inquire into the qualifications of a Dele- 
 gate, as well as of a Kepresentati-\e, and while the statute did not dis- 
 qualify an alien from sitting as a Delegate, the common law and the 
 usage of nations undoubtedly did. The certificate of naturalization 
 issued to Moses Levy by Governor Jackson, was under a statute sub- 
 sequently declared void, and was plainly in excess of his powers. The 
 recent decision of the court of appeals, not being made by a court of 
 concurrent jurisdiction, nor in a case between the same parties, was 
 not conclusive on the House of the citizenship of David Levy. Moses 
 Levy not having been a subject of the King of Spain at the time of 
 the transfer of Florida, no treaty action between Spain and this 
 country could have transferred his allegiance. His only right to citi- 
 zenship, then, must be based on the laws granting citizenship to all 
 who were inhabitants of Floi'ida on July 17, 1821. The testimony 
 indicated that he was not an inhabitant of Florida until a few days 
 after that date, and, consequentlj', neither he nor his minor son was 
 naturalized. 
 
 When the report was presented to the House Mr. Levy moved that 
 he have until the first day of the next session to take further testi- 
 mony. This was granted, and on examination of the additional testi- 
 mony the majority of the committee reversed the former decision, and 
 reported in favor of the right of Mr. Levy to the seat. The new evi- 
 dence went chiefly to establish the fact that Moses Levy was actually 
 in Florida on July 17, 1821. The evidence was very contradictory 
 and not fully conclusive, but the committee thought that it fairly estab- 
 lished the fact. In a case like this the leaning ought to be in favor of 
 the claimant of citizenship. He had resided in this country since he 
 was 9 years old, had always considered himself a citizen, and the ques- 
 tion of his citizenship had been passed upon by the courts of Florida, 
 by the executive department of the United States, and in effect by 
 the people. If he was not a citizen, the lack at most was a very tech- 
 nical one. 
 
 The minority reported that a large part of the additional evidence 
 ought to have been thrown out, as being taken without notice, an4 
 
116 DIGEST OF OONTEStED ELECTION OASES. 
 
 after the time fixed by the House. But considering it, the preponder- 
 ance of it .showed that Moses Levy did not arrive in Florida until after 
 July 17, 1821, and hence neither he nor his son were citizens. 
 
 No action was had upon this case in the House, so Mr. Levy retained 
 his seat. 
 
 [1 Bart., 41-47 (only one of the thicc reports is given in 1 Bart.); 
 see also Report No. 10, first session Twenty -seventh Congress, and No. 
 450, second session.] 
 
TWENTY-EIGHTH CONGRESS. 117 
 
 TWENTY-EIGHTH CONGRESS, 1843-1845. 
 
 Committee on Elections. 
 
 >li-. Elmer, New Jersey, Mr. Douglas, Illinois, 
 
 Chapman, Alabama, Davis, Kentucky, 
 
 Newton, Virginia, Schenck, Ohio, 
 
 Hamlin, Maine, A. V. Brown, Tennessee, 
 
 M. Ellis, New York. 
 
 Cases. 
 
 (1) Members elected by general ticket. 
 
 (2) Wm. L. Goggin vs. Thomas W. Gilmer, Virginia. 
 
 (3) John M. Botts m. John W. Jones, Virginia. 
 
 (1) MEMBERS ELECTED BY GENERAL TICKET. 
 
 Majority report that they were entitled to their seats; minority report 
 that they were not entitled to their seats. The Home sustained their 
 right to their seats. 
 
 Majoi-ity report by Mr. Douglas; minority report by Mr. Davis. 
 
 The majority andminoritj'^ reports in this case, written by Mr. Stephen 
 A. Douglas and Mr. Garrett Davis, contain exhaustive arguments upon 
 the constitutional principles involved. Onl}' a very unsatisfactory 
 outline of these arguments can be given without going beyond the 
 limits of space necessary to be observed. The Twenty-seventh Con- 
 gress, in the second section of the apportionment act made necessaiy 
 by the Sixth Census, had provided that — 
 
 In each case where a State is entitled to more than one Eepresentative, the num- 
 ber to which each State shall be entitled, under this apportionment, shall be elected 
 by districts composed of contiguous territory, ejjual in number to the number of 
 Representatives to which said State shall be entitled — no one district electing more 
 than one Eepresentative. 
 
 All the States but four, either under previous^ existing laws or 
 under laws passed in accordance with this provision, elected their Rep- 
 resentatives by districts, but the States of New Hampshire, Georgia, 
 Mississippi, and Missouri elected the Representatives to which they 
 were entitled by general ticket from the State at large. ^ 
 
 The majority of the committee reported in favor of the validity of 
 the elections in these States, arguing substantially as follows: 
 
 There is a direct conflict between the second section of the apportion- 
 ment act and the election laws of the States in question. 
 
 The conflict is so clear, so palpable, so direct, that both can not stand; one or the 
 other must yield. Either the State laws and all the proceedings under them are void, 
 or the second section of the apportionment act is invalid and inoperative. 
 
 There is not only a conflict of law, but a conflict of right, of power, of sovereignty, 
 between the Federal Government and four of the independent States of this Union. 
 
 The sixth article of the Constitution provides that this Constitution, and the laws of 
 
 ' At the last session of the Twenty-seventh Congress, when it became evident that 
 the failure of these States to comply with the law of Congress would produce a bitter 
 contest in the House, the committee reported favorably a bill suspending the opera- 
 tions of the law so far as it applied to the Twenty-eighth Congress, in the hope that 
 before the next election all the States would voluntarily comply with it; but the bill 
 did not become a law. 
 
118 DIGEST OF CONTESTED ELECTION CASES. 
 
 the United States which shall be made in pursuance thereof, shall be the supreme 
 law of the land, anything in tlie constitution or laws of any State to the contrary 
 notwithntanding. This brings us directly to the point at issue. Is the second sec- 
 tion of the ajiportioument act a law, which has been made in pursuance of the 
 Constitution of the United States valid, operative, and binding upon the States? If 
 the afiirinative of this proposition can be successfully maintained, the State laws must 
 yield to the paramount authority, and the elections under them be declared void. 
 
 Under the Constitution the State legislatures are required to ipvescrihe 
 the times, places, and manner of holding elections for Senators and 
 Repi'esentatives, but Congress is permitted at any time to "make or 
 alter such regulations." The State legislatures have an imperative 
 duty in this matter, but they are intrusted with an unlimited discretion 
 in the manner of its performance. But — 
 
 The privilege allowed Congress of altering State regulations or of making new ones, 
 if not in terms is certainly in spirit and design dependent and contingent. If the 
 legislatures of the States fail or refuse to act in the premises or act in such a manner 
 as will be subversive of the rights of the people and the principles of the Constitution, 
 then this conservative power interposes, and, upon the principle of self-preservation, 
 authorizes Congress to do that which the State legislatures ought to have done. 
 
 The history of the adoption of this provision and of its ratification 
 by the States shows that it was introduced for this purpose alone, and 
 was ratified by the States only upon the understanding that it would 
 never be used for any other purpose. 
 
 But the question now to be considered is one of power and not of the 
 propriety of its exercise; and if it is conceded that the power of Con- 
 gress in the premises is as plenary as that of the States, the question still 
 remains "whether the second section of the apportionment act is an 
 exercise of this power in a manner contemplated by the Constitution 
 and binding upon the States." This provision is of itself nugatory 
 and inoperative without the aid of State legislation. It does not 
 provide the districts in which the election is to be held or furnish any 
 of the necessarjr regulations. It is said to be a direction to the State 
 legislatures to enact laws of a certain sort; but the Constitution gives 
 to Congress no power to cotimand the States. 
 
 The right to change State laws, or to enact others which shall suspend them, does 
 not imply the right to compel the State legislatures to make such changes or new 
 enactments. Whatever power the legislatures possess over elections they derive 
 from the Constitution and not from the laws of the United States. 
 
 Congress has the right to enact its own laws and to enforce them by 
 its own agencies, and hence there is no necessity or implied power to 
 require the States to enact or enforce laws. The very feature of the 
 old confederation which made the Constitution necessary' was the fact 
 that the laws of Congress operated upon the States and"^ not upon the 
 people, and hence wore only enforceable by the consent or coercion of 
 sovereign States. In some cases, under the Constitution, the States 
 and the Federal Government have concurrent powers, but in the case 
 of bankruptcy laws, one of these concurrent powers, it would not be 
 contended that Congress would have the right to lay down certain 
 abstract principles and require the States to pass bankruptcy laws con- 
 forming to these principles. Congress has the undoubted power to 
 prescribe the f///ieii of elections, but no one would contend that a valid 
 law could be passed requiring the elections to be held on the same day 
 in all the States without fixing that day. 
 
 Hence we are brought irresistibly to the conclusion that a fair interpretation of this 
 clauseof the Constitution requires that Congre-.^sluillcithcr designate the time, specify 
 the places, and prescribe the manner, by law, or leave it to the wisdom and discretion 
 of the several State legislatures. 
 
TWENTY-EIGHTH CONGRESS. 119 
 
 Congress need not exercise all of its powers at once, but whenever 
 it does assume 
 
 the power over one branch of the suhject its legislation must be complete to that 
 extent, so as to execute itself without the intervention of the State legislatures, and 
 the residue must be left to the States to be exercised according to their discretion 
 under the Constitution. 
 
 The committee recommended resolutions declaring the second sec- 
 tion of the apportionment act void, and that all the members of the 
 House (except the two contested cases from Virginia) were duly 
 elected. 
 
 The minority held that the second section of the apportionment act 
 was a valid law, and the elections held in the four States in question 
 consequently void. The Government of the United States, under the 
 Constitution, is a government complete in itself. No State oiScer or 
 legislature, in performing any function of the Federal Government, 
 does so by any authority residing in the States, but by the authority 
 of the Constitution, and by virtue of an agency created by the Consti: 
 tution. The only authority the State legislatures have over Federal 
 elections is derived from the Constitution, and is granted by a pro- 
 vision which gives Congress, at its option, a coextensive and para- 
 mount authority. Unless the power to prescribe that elections for 
 Representatives shall be bj' general ticket, or by districts, is given to 
 the legislatures by this section of the Constitution, thej'^ do not possess 
 it at all. If they do possess it, the same section which gives it to them 
 gives it to Congress. That the powers of Congress are thus as com- 
 plete as those of the legislatures is shown not only by the history of 
 the adoption of this provision, but also by the protests of several of 
 the States, made at the time, and based upon exactly this interpreta- 
 tion of the section as it stands. 
 
 Congress has powe^i" to alter State regulations, and it is upon this 
 power that the validity of the second section of the apportionment act 
 rests. No State can prevent or circumscribe the action of Congress 
 in this respect. Congress may alter the State regulations to any extent 
 it chooses, leaving those parts not altered still in force. Any altera- 
 tion that the State legislatures themselves could make Congress can 
 make, and it becomes immediately a part of the State laws, just as if 
 it had been made by the legislatures of all the States. If Congress 
 should pass a law fixing the time of Federal elections, it would imme- 
 diately alter such provisions of the State laws as fixed a different 
 time; but the other provisions would remain in force, and the elec- 
 tion would be held under the State laws, altered in respect to time 
 by the law of Congress. But the constitutionality of this Congres- 
 sional alteration would not depend on the fact that the other por- 
 tions of the State regulations were so constructed that with this 
 alteration a complete system, capable of being executed without 
 further legislation, would remain. A law is constitutional if it is 
 not contrary to the Constitution, and the constitutionality of a law 
 of Congress can not depend on the forms of State laws. The fact 
 that the second section of the apportionment act so alters the regula- 
 tions of some of the States that what remains can not proprio vigore 
 be executed does not aflfect its constitutionality. If a similar pro- 
 vision had been passed by the legislature of one of the States, it would 
 have amounted to an alteration of the election laws, even though, by 
 disagreement of the two branches of the legislature, the further legis- 
 lation necessary to carry it into execution had failed of passage; and 
 no valid election could nave been held in that State until the necessary 
 
120 DIGEST OP CONTESTED ELECTION CASES. 
 
 regulations in conformity with this provision of the law had been 
 adopted and followed. When the alteration was made by a law of 
 Congress the case was exactly similar, and no valid election could be 
 held contrary to its provisions. If the State legislatures were under 
 the duty of enacting regulations which would make the laws, as thus 
 altered, capable of being executed, it was not because this law of Con- 
 gress acted as a mandamus on the legislatures. The Constitution 
 itself, from which the legislatures derive their authority, commands 
 them to enact regulations; and if Congress so exercises its authority 
 to alter State regulations as to render further legislation necessary 
 before the laws as altered can form a complete and practicable system, 
 the command for the enactment of such legislation comes not from 
 Congress, but from the Constitution. The law, then, not being- con- 
 trary to the Constitution, is valid and binding in all the States, unless 
 it can be held invalid under the principle that a law which expresses 
 no meaning, or whose meaning is altogether doubtful, is of no effect. 
 A law requiring elections to be held at a unifonn time, without desig- 
 nating the time, would, under this principle, be invalid, because no 
 State, looking to the law alone, could know what da}' was intended. 
 But such is not the case with the provision requiring elections to be 
 held by districts, no district to elect more than one rep^esentati^•e. 
 If this were a provision of the Constitution no one would be doubtful 
 of its meaning or of the duty of the legislatures to follow it. Simi- 
 larly if it were an enactment of the legislatures themselves. A pro- 
 vision which would have meaning in these situations can not be held 
 to be meaningless simplj' because it is a law of Congress, which the 
 Constitution says shall be the supreme law of the land. 
 
 The undersigned think that the following propositions are clearly made out: That 
 this law is not unconstitutional, beca,use there is nothing in it in opposition to the 
 Conafltution; that it is not void in consequence of not being a full execution of the 
 power of Congress, because the Constitution permits Congress to exercise so much 
 of this power at all times as it may think proper; that it is not a nullity, because it 
 is a clear, intelligible, and substantive alteration of the State laws, which Congress 
 had the right to make, and it plainly and distinctly, by its provisions, informs the 
 State legislatures what they are to do to give it practical effect; that the State legis- 
 latures are commanded by the Constitution and bound by their oath to support it, 
 to divide their States respectively into districts, and to prescribe any other needful 
 regulations to give this law its effect; and that the general ticket regulation of Xew 
 Hampshire, Georgia, Mississippi, and Missouri and the election of their representa- 
 tives, being in opposition to this law of Congress, which is a jiart of the supreme law 
 of the land, are void and of no effect. 
 
 The debate on this subject occupied a large part of the session. The 
 report of the committee was not formally agreed to, but it was voted 
 by a decided majority that each member elected by general ticket was 
 entitled to his seat. The entire debate maj^ be found in the Congres- 
 sional Globe, volume 13, parts 1 and 2. A full index of the debate 
 is given on page 16 of part 1 and page 3 of part -2. 
 
 [1 Bart., 47-69.] 
 
 (2) GoGGiN vfi. Gilmer. 
 
 , Adjournment of jioll; election officers not sicorn. Majority rep<irt 
 for sitting meniber; minority report to declare seat vacant. ]yo action 
 hy the House. 
 
 Majority report by Mr. Elmer; minority report by Mr. Schenck. 
 
 At the close of the first day's voting Mr. Goggin had a majority of 
 the votes; but the superintendents of election at polls in two counties 
 continued the election for three days on aci'ount of rain, under the 
 
TWENTY -EIGHTH CONGRESS. 121 
 
 Virginia law, and including the votes given at these polls on the second 
 and third days Mr. Gilmer had a majority of 24 votes. He contested 
 the election on the ground that the occasion of adjournment required 
 by the law did not exist; that under the law the officers had no 
 authority to adjourn the poll without a request from one of the candi- 
 dates, which request was not made; and also that the officers of elec- 
 tion at these polls were not sworn. The law under which the officers 
 claimed to act was: "If, by rain or rise of watercourses, many of the 
 electors may have been hindered from attending," the election officers 
 "may, and shall', by the request of any one or more of the candidates, 
 or their agents, adjourn the proceedings " for three days. 
 
 On the first day of the election, in the counties in question, rain had 
 fallen, many voters had remained away from the polls, and some of 
 them had been kept away by the rain. The committee were of the 
 opinion that the officers of election, from the very nature of the case, 
 must be the judges whether the rain was sufficient to have hindered, 
 and had hindered, many voters from coming to the polls. 
 
 Had it now clearly appeared that they were mistaken in this judgment, the com- 
 mittee do not think that their proceedings should be declared illegal and void, in 
 the absence of all proof and of all complaint that they acted fraudulently. 
 
 But the evidence was far from showing that they had acted injudi- 
 ciously. 
 
 The committee were also of the opinion that it was a mistaken 
 interpretation of the law above quoted to assume that the elec- 
 tion officers could only adjourn the poll on the request of a candidate 
 or his agent. But, conceding the interpretation contended for, the 
 burden was certainly on contestant to show conclusively that no such 
 request had been made. Neither of the candidates for Congress had 
 made the jequest, but there was nothing to show that it might not 
 have been made by a candidate for the State legislature or by some 
 voluntary agent of one of the candidates for Congress. 
 
 The evidence by which it was sought to show that the officers 'of 
 election were not sworn was unsatisfactory. Except as to one poll, it 
 appeared by other evidence that they were sworn, and the evidence 
 as to that poll consisted of two conflicting certificates of the county 
 clerk; -the first clearly attempting to show by certificate facts only 
 capable of being shown by testimony, and the second perhaps open 
 to the same objection, and, if not, at least discredited by its conflict 
 with the first. 
 
 The minority report (not given in 1 Bart.) favored setting the elec- 
 tion aside. The plain construction of the law was that the election 
 officers, if a certain contingency occurred and if requested by one of 
 the candidates, were authorized and required to adjourn the poll. 
 Except as to one precinct, it was clear that no such contingency existed, 
 and the evidence in regard to that one precinct was of a suspicious 
 character. It was clear also that neither of the candidates had 
 requested the adjournment. The first certificate of the clerk of 
 Amherst County was based on a partial examination of the records 
 and was also clearly incompetent, but the second certificate was compe- 
 petent and showed that the election officers at one poll were not 
 sworn. The requirement of an oath was mandatory, and the poll 
 should be thrown out under the precedents. The minority favored a 
 new election. 
 
 Before the case was reached in the House Mr. Gilmer, having been 
 appointed to a Federal office, resigned, and, a new election being thus 
 
122 DIGEST OF CONTESTED ELECTION CASES. 
 
 obtained, the case was not pressed in the House, and leave was asked 
 to witiidraw the papers of contest. 
 
 [1 Bart., 70-73; also Report No. 7fi, part y, first session Twenty- 
 eighth Congress.] 
 
 (3) BoTTS vs. Jones. 
 
 Illegal votes; election officers riot sworn; irregularities. Both rejxi'rts 
 for xitting inemher. Sitting ine'inljer retained the wat. 
 
 Majority report by Mr. Elmer; minority report by Mr. Newton. 
 
 According to the returns Mr. Jones had a majority of 34 votes. 
 Mr. Botts cliarged that 284 illegal votes were cast for Mr. Jones; Mr. 
 Jones charged that 440 illegal votes were cast for Mi'. Botts. The 
 petitioner also attacked two polls for irregularities. 
 
 The testimony was all taken under the provisions of the Virginia 
 law for contests in the State legislature. Under the practice of this 
 law each party had the burden of sustaining the legality of votes cast 
 for him and objected to by his opponent, and the parties in this case had 
 proceeded on this basis. The committee considered this a false prin- 
 ciple, but inasmuch as the parties in manj- cases had taken no testi- 
 mony at all in regard to votes definitely known to be illegal, the 
 committee were forced to proceed on the same assumption as the 
 parties, and take votes as conceded to be illegal where there was no 
 evidence to show them legal. 
 
 Upon an examination of all the testimony the committee deducted 
 117 votes from the sitting member and 238 from the petitioner, leav- 
 ing a net majority of 155 votes for the sitting member. 
 
 One poll was attacked by the petitioner on the ground that only one 
 "writer" had been appointed to take the poll for Congress. The 
 law required the officer conducting the election to ' ' appoint so many 
 writers as he shall think fit," to " deliver a poll book to each writer," 
 etc. The committee held that the discretionary authority given included 
 the right to appoint onh^ one writer. But in this case three writers 
 were appointed, but only one of them took the poll for Congress. 
 
 The other poll was objected to on the ground that the sherift' and 
 one of the two superintendents was not sworn. The committee 
 thought this objection ought not to be considered, as notice of it was 
 not given to the sitting member within the time prescribed by the 
 Virginia law. But if it was considered, the failure of the sherifl' to 
 take the oath was immaterial. His presence, under the new laws of 
 Virginia, was not necessary, and his duties were not such as to render 
 the taking of an oatb imperative. The failure of one of the superin- 
 tendents to be sworn was undoubtedly irregular and illegal, but the 
 committee were not prepared on this account to set aside a poll against 
 which there were no charges of unfairness and whose illegal votes 
 had already been purged under a rule extremelj' favorable to the 
 party objecting to them. 
 
 The minority held that this objection ought to be considered, as 
 reasonable notice had been given. The failure of two of the three 
 officers to be sworn vitiated the election. The minority also differed 
 in regard to many individual illegal votes, but as they still found a 
 small majority remaining for Mr. Jones they concurred in the reisult 
 but not in the reasoning of the majority report. 
 
 After a brief debate the House confirmed the title of Mr. Jones by 
 a vote of 150 to 0. 
 
 [1 Bart., 73-78; see also Report No. 520, first session Twenty-eighth 
 Congress (minority report not not given in 1 Bartlett).] 
 
TWENTY -NINTH CONGRESS. 123 
 
 TWENTY-NINTH CONGRESS, 1845-1847. 
 
 Vomrrdttee on Elections. 
 
 Mr. Hamlin, Maine, Mr. Ellsworth, New York, 
 
 A. A. Chapman, Virginia, McGaughey, Indiana, 
 
 Hakpek, Ohio, Culver, New Jersey, 
 
 Chase, Tennessee, Chipman, Michigan, 
 
 Mr. Dobbin, North Carolina. 
 
 Cases. 
 
 (1) William H. Brockenbrough to. Edward C. Cabell, Florida. 
 
 (2) Isaac G. Farlee ijs. John Runk, Nefio Jersey. 
 
 (3) Edward D. Baker, lllhwis; Thomas W. Newton and Archibald 
 Yell, Arliansas. 
 
 (1) Brockenbrough vs. Cabell. 
 
 Returns made after the legal time and l)y the wrong officers. Major- 
 ity report for contesta7it ,' minority report for sitting member. Oon- 
 teatant seated. 
 
 Majority report by Mr. Hamlin; minority report by Mr. Culver. 
 
 According to the law of Florida the secretary of state was to tabu- 
 late the returns in his office on the thirtieth day after the election, and 
 the certificate of election was to be based on this tabulation. Accord- 
 ing to all the returns in the office of the secretary of state on the 
 thirtieth day, Mr. Cabell had a majority, and the certificate of election 
 was given to him. A number of returns were received by the secre- 
 tary of state more than thirty days after the election, and if all of 
 these were counted it would give Mr. Brockenbrough a majority. 
 All the committee were of the opinion that the law prescribing the 
 time for making returns was directory, and that returns should 
 not be thrown out merely because returned too late. But there still 
 remained the question, Which returns were made by the legal officers? 
 There were three classes of -returns: Those made by probate judges, 
 by county clerks, and by precinct inspectors. Under the law of 
 Florida Territory the count}' clerks were to appoint inspectors and 
 transmit returns. Under a recent law of the State the duties of 
 the county clerks in I'egard to elections were transferred to the pro- 
 bate judges. But as the old organization and duties of officers were 
 to continue until the new were established, the committee were, of the 
 opinion that, if these two laws controlled the election, the returns 
 from the county clerks had the same validity as those of the probate 
 judges. An act ' ' to facilitate the organization of Florida " was claimed 
 to have superseded the earlier Territorial law, so that the duties of the 
 county clerks which were transferred to the probate judges were those 
 of this act and not those of the Territorial law. But the committee 
 held that this act did not apply, both because it was a special act for 
 a special purpose and because it contained no provisions for county 
 elections, and the Congressional elections were required to be held in 
 the same manner as county elections. 
 
 If the returns originally made to the secretary of state by the pro- 
 bate judges and county clerks and those returned after the thirty days 
 
124 DIGEST OF CONTESTED ELECTION CASES. 
 
 by the same officers were counted, the contestant would have a major- 
 ity. The committee were of the opinion that these worc_ th(> legal 
 returns. But if, in addition, the returns included in the original tab- 
 ulated statement of the secretary of state, but made to him by precinct 
 inspectors, were counted, the sitting member would still have a major- 
 ity. On this basis it seems that a majority of the cornmittee originally 
 voted that the contestee was elected, but they afterwards reconsidered 
 their decision on th^ ground that if returns made by precinct officers 
 within the thirty days, and certified bj' the secretarj- of state to the 
 governor, were to be counted, those made by the same class of officers 
 after the thirty da_vs, and certified Ijy the secretaiy of state, should 
 also be counted. If all the returns were counted, or only the legal 
 returns made by the probate judges and county clerks, the contestant 
 would have a majority, and the committee reported in his favor. 
 
 The minority report (not given in 1 Bart.) advocated the retention 
 of the sitting member, and called attention to the fact that the original 
 decision of the committee was in his favor. No members of the com- 
 mittee contended that both sorts of returns were legal. If only those 
 made hy the precinct inspectors were legal the sitting member would 
 have a majority. But the committee had voted that the returns made 
 by the probate judges and county clerks were the legal returns. If to 
 the returns originally counted were added the returns subsequently 
 made by these officers, the sitting member would have the majority. 
 The committee had voted not to receive the returns of precinct inspec- 
 tors made after the thirty days, and this vote was decisive of the case 
 in favor of the sitting member. The contestant could not object to 
 the counting of the returns of precinct inspectors included in the 
 original tabulated statement, for he had himself introduced this state- 
 ment as a whole, and must be bound by the whole of it. 
 
 In debate Mr. Hamlin announced that he personally was in favor of 
 counting all the returns regardless of the channel through which the 
 returns reached the secretary of state or the House. 
 
 The resolutions presented by the majoi-ity were adopted by a vote 
 of 100 to 84, and Mr. Brockenbrough was sworn in. 
 
 [1 Bart. , 79-87, and Eeport No. 35, first session Twenty-ninth Con- 
 gress.] 
 
 (2) FaELEE li'.y. EuNK. 
 
 Student votes. Majority 'rejMpf for sitting member; minurity report 
 for contestant. Sitting inemlier r<>tairied the seat. 
 
 Majority report by Mr. Dobbin; minority report by Mr. Chase. 
 
 The sitting member received a majority of 16 votes. There were 19 
 votes, and probablj' a few more, cast by students of Princeton College 
 and Theological Seminary. Contestant claimed that these votes were 
 illegal and were cast for the sitting member. 
 
 Under the recently adopted constitution of New Jersey all white 
 male citizens of the United States who had been residents of the Stale 
 one year and of the county five months, with certain specified exceptions 
 (not including students), were entitled to vote. The committee found 
 that the votes of these students could not be attacked on any ground 
 except that of residence. All of them were men of mature j^ears 
 whose parents were either dead or no longer contributed to their 
 support; all of them had i)ecn engaged in lal)or for themselves since 
 they left the homes of their parents, and had left both the homes of 
 
TWENTY -NINTH CONGRESS. 125 
 
 their parents and their last residences animo von revertendi. They con- 
 sidered Princeton their residence, paid taxes there, and had no definite 
 intentions in regard to residence after the completion of their studies. 
 Under these circumstances the committee held that they were residents 
 of Princeton, and legal voters. It was' contended that there was a law 
 of New Jersey declaring that students in college could not vote, but 
 this law was passed before the new constitution, and being inconsistent 
 with it was superseded by it. But if it were in force it could not affect 
 the case, for the legislature could not intend that students should be 
 deprived of their votes simply because they were students, whether 
 residents or not, and these students were proved to be residents. 
 
 A recent decision of the supreme court of New Jersey bearing 
 indirectly on the question was quoted, and the committee agreed that 
 it was correct and that under it most of the students at Princeton were 
 not legal voters, but the few who voted were exceptions, as shown by 
 the evidence. 
 
 The minority (minority report not given in 1 Bart.) held that the 
 votes were illegal and that all but one of them were cast for the sitting 
 member. The law of New Jersey specifying students as among the 
 persons not entitled to vote in the places where they lived at the time of 
 the election was not repealed until after this election. If it was con- 
 trary to the new constitution, it was as much contrary to the old; the 
 minority did not believe it to be contrary to either. But if it were not 
 in force the students in question were not entitled to vote on general 
 principles. Some of them had left their former homes animo non 
 revertendi, but they had not come to Princeton animo manendi, and 
 both were required to constitute a residence. 
 
 Four of 4;hem testified that thej^ voted for Mr. Runk, one that he 
 voted for Mr. Farlee; the rest refused to disclose how they voted. It 
 was thus necessary to resort to other evidence. A witness, one of the 
 students of the seminary, testified that he had at various times talised 
 with sixteen of them, or heard them talk with others, on political sub- 
 jects, and from these conversations he believed them to be Whigs. 
 On this testimony the minority deducted their votes from Mr. Runk. 
 
 After a very brief debate in the House it was voted by a vote of 
 11& to 66 that the contestant was not elected. A resolution declaring 
 the sitting member not entitled to his seat was defeated by a vote of 
 96 to 96, the Speaker then casting his ■vsote in the negative. From 
 this it would seem that many members who were satisfied that the 
 student votes were illegal were not satisfied for whom they were cast. 
 
 [1 Bart., 87-92, and Report No. 310, first session Twenty-ninth 
 Congress.] 
 
 (3) Baker, Newton, and Yell. 
 
 Holding incompatible office. Seats vacant. 
 
 Report by Mr. McGaughey. 
 
 Messrs. Baker and Yell had accepted commissions as colonels in the 
 volunteer army. Mr. Newton had been elected to the vacancy alleged 
 to have been created by the acceptance of a disqualifying office by 
 Mr. Yell. The committee reported that the offices were clearly incom- 
 patible, and that the seats of Messrs. Baker and Yell were vacant, and 
 that Mr. Newton was entitled to his seat. No action was had by the 
 House, as Mr. Baker had resigned, and Mr. Newton had already been 
 admitted. 
 
 [1 Bart., 92-97.] 
 
126 DIGEST OF CONTESTED ELECTION CASES. 
 
 THIRTIETH CONGRESS, 1847-1849. 
 
 Committee on, Eleotioiii^. 
 
 Mr. R. W. Thompson, Indiana, Mr. Jenkins, New York, 
 
 J. MuiLiN, New York, Van Dyke, New Jersey, 
 
 L. B. Chase, Tennessee, Roman, Maryland, 
 
 Mr. N. Botden, North Carolina. 
 
 In the second session, Mr. Inge, of Alabama, and Mr. Williams, 
 of Maine, were added to the above. 
 
 Cases. 
 
 (1) James Monroe vs. David S. Jackson, New York. 
 
 (2) H. H. Sibley, Wisconsin Territory. 
 
 (1) Monroe vs. Jackson. 
 
 Illegal votes. Residence of paupers. Mfijority report for contestant; 
 minority report for contestee. House 'vacated the seat. 
 
 Majority report by Mr. Thompson; minority report I)}- Mr. Jenkins. 
 
 According to the returns the sitting member had a majority of 143 
 votes. Contestant alleged that 163 votes were cast for contestee in 
 one precinct by paupers in the almshouse, and that a considerable 
 number of votes of the same class, and also of convicts and other dis- 
 qualified persons, were cast for him in other precincts. 
 
 The law of New York provided — 
 
 That no person shall be deemed to have lost or acquired a residence by living in 
 any poorhouse, almshouse, hospital, or asylum, in which he shall be maintained at 
 public expense. 
 
 All the committee seemed to agree that under this law the legal 
 residence of a pauper was the place from which he came to the poor- 
 house. The minority' raised the question -^vhether some of the paupers 
 who come to the almshouse before the passage of this law had not 
 already acquired a residence there, and some of the minority drew a 
 distinction between actual residence and legal residence (see 1 Bart. , 
 102); but the main question 'was whether the proof was sufiicient to 
 establish the facts alleged. In the precinct where the 163 Aotes were 
 charged lists were in evidence said to be copies of lists kept by two 
 challengers of the votes challenged by them. They had challenged 
 all these voters on the ground that they came from the almshouse and 
 were consequently nonresidents. The inspectors of election testified 
 that they had considered residence in the almshouse as much legal 
 residence as residence in any other house in the district, and had 
 admitted votes on this principle. The names found on the lists pre- 
 sented were also found on the poll list, and an ofiicer of the almshouse 
 testified that they were found on the books of the almshouse. He 
 thought that some 18 or 20 of them had resided in the precinct before 
 being admitted to the almshouse. 
 
 Upon this evidence the committee found that the persons in ques- 
 tion were inmates of the almshouse; that they voted, and that not 
 more than 20 of them were legal residents of the precinct. The 
 
THIRTIETH OONGEE8S. 127 
 
 evidence that they voted for the sitting member consisted of proof 
 that Democratic tickets were distributed at the almshouse the evening 
 before election; that the officers in conti'ol of the almshouse were - 
 Democrats; that the conveyances in which the i:)aupers came to the 
 polls were furnished by Democrats, and that the Democratic tickets 
 were on somewhat thicker paper, and that witnesses in watching the 
 paupers vote were of the opinion that the tickets they had were Demo- 
 cratic. There was proof, however, that 5 of them voted the Whig 
 ticket. Deducting these 5 votes and the 20 votes shown to be legal 
 from the 163, and adding 19 illegal votes proved in other precincts, 
 showed a total of 167 illegal votes cast for the sitting member, which 
 being deducted from his vote, the contestant had a majority of 14 
 votes. The committee accordingly recommended resolutions declaring 
 contestant elected. 
 
 The minority ([minority report and most of majority report omitted 
 from 1 Bart.) held that the proof was insufficient to show either that 
 the persons voting were inmates of the almshouse, that they had not 
 previously been residents of the precinct or that they voted for the 
 sitting member, and that the burden was on the contestant to show all 
 these facts. Neither the almshouse books, nor any copy of them, 
 was put in evidence, and the official who testified that the names were 
 on the books was a new official, he did not have charge of the books, 
 did not show that he had collated the lists, and did not show that they 
 were on the books at the time of the election; other testimony showed 
 that two or three of them were not. The persons were not identified, 
 even if the proof of the names was taken as sufficient. The witness 
 did not know of more than 18 or 20 inmates who had been residents 
 of the precinct previous to admissioh to the almshouse, but his 
 acquaintance with the facts was not extended. Many of the inmates of 
 the almshouse did go to other precincts to vote, and there was nothing 
 to prove that those who voted at this precinct were not those who had 
 a right to vote. 
 
 The proof that the voters voted for the sitting member was also of 
 a very unsatisfactory character, and even such as it was it did not 
 cover all of them. If the evidence were all taken to show the facts 
 claimed for it, it would not show a majority for the contestant. A 
 correction of the figures of the majority showed a majority of only 9 
 for the contestant; but this included at least 35 votes to which the 
 alleged proof that they voted for the sitting member did not profess 
 to apply, as well as a number of others where the chain of evidence 
 lacked one or more links. 
 
 The House, after some debate, decided to send the case back to the 
 people, and by a vote of 101 to 91 declared the seat vacant. 
 
 [1 Bart. , 98-102; and Report No. 403, first session Thirtieth Congress.] 
 
 (2) Sibley. 
 
 Right of Territorial Delegate after admission of State. Majority 
 report to admit Delegate; minority report to exclude Kim. Delegate 
 admitted. 
 
 Majority report by Mr. Thompson; minority report by Mr. Boyden. 
 
 The State or Wisconsin had been admitted under an act making its 
 boundaries somewhat different from those of the Territory of Wiscon- 
 sin, and excluding the territory north and west of the. St. Croix River, 
 
128 DIGEST OF CONTESTED ELECTION CASES. 
 
 containing a population of about 4,000. The governor of Wisconsin 
 Territory liaving been elected to the United States Senate from the 
 State of Wisconsin, the secretary of the Territory, who, under the 
 Territorial laws, would become acting governor on the resignation of 
 the governor, removed to the territory not included in the new State 
 of Wisconsin, and sot up an office as goVernor of the Territory of Wis- 
 consin. The duly elected Delegate having resigned, the acting gov- 
 ernor called a new election, and Mr. Sibley was elected as Delegate from 
 Wisconsin Territorj-. 
 
 The committee found that by the ordinance of 1Y87, from which all 
 Territorial governments are derived, the people were guaranteed the 
 perpetual enjoyment of certain rights, including the ordinary forms of 
 civil government. Unless the Territorial government still subsisted in 
 that portion of the Territory of Wisconsin not included in the State 
 of Wisconsin, the people of this territory were without laws or gov- 
 ernment, and reduced to a state of anarchy. These people had for- 
 merly enjoyed the I'ight of representation in Congress. This right, 
 and others, could only be taken away from them by the abrogation of 
 the laws under which they enjoyed them and the substitution of other 
 laws. No such enactments could be found, and in consequence the 
 territory in question was still entitled to all the rights of the Territory 
 of Wisconsin. Such was the construction of the laws made by the 
 executive department, and demanded by important considerations of 
 public policy. 
 
 The minority (minority report not given in 1 Bart.) held that the 
 act empowering the corporation known as the Territorj^ of Wisconsin 
 to change itself into the State of Wisconsin, and the execution of that 
 act, whereby the Territory became the State, worked an entire passing 
 out of existence of the Territorj^ of Wisconsin, so that no such corpora- 
 tion now existed. The territory sought to be represented by Mr. Sibley 
 was too small to be equitably entitled to a Territorial legislature or a 
 Delegate in Congress, and if it were true that the extinction of the 
 Territory of Wisconsin left these people without any government or 
 laws it would merely be a good reason for immediate action bj' Con- 
 gress to supply such government. 
 
 The Delegate was admitted by a \'ote of 134 to 62. 
 
 [1 Bart., 102-107; and Report No. 10, second session Thirtieth Con- 
 gress.] 
 
THIRTY-FIRST CONGRESS. 129 
 
 THIRTY-FIRST CONGRESS, 1849-1851. 
 
 Cmnnnittcc on Electlona. 
 
 Mr. Strong, PeniLsylvania, Mr. Harris, Tennessee, 
 
 Harris, Alabama, McGaughey, Indiana, 
 
 Van Dyke, New Jersey. Ash, North Carolina, 
 
 Disney, Ohio, Ani^ews, New York, 
 
 Mr. Thompson, Kentucky. 
 
 Canex. 
 
 (1) Hugh N. Smith, New Mexico. 
 
 (2) A. W. Babbitt, De^icct. 
 
 (3) Daniel F. Miller m. William Thompson, loum. 
 
 (4) John S. Littell vs. John Robbins, jr., P<'nnf;ylvu)\ia. 
 
 (5) Jared Perkins <'.y. George W. Morrison, New liainpaJdre. 
 
 (6) W. S. Messervy, New Mexico. 
 
 (1) Smith. 
 
 Admission of Delegate before oiyanlsatloii of Territorial govern ment. 
 Majority rejjort lujamtit adiiilx.^lon ; mliurrlti/ report for admission. 
 Delegate refuKed admission. 
 
 Majority report by Mr. Strong; minority report bj' Mr. Van Dyke. 
 
 Under the Mexican Government New Mexico had been a State or 
 department, with recognized boundaries, the right of representation, 
 and local self-government. Upon the cession of the territoiy in which 
 New Mexico was included to the United States, her former govern- 
 ment ceased to exist, and a pro\isional military government was estab- 
 lished by the military authorities. A convention was held at Santa 
 Fe, which memorialized Congress for the establishment of some sort 
 of permanent government and elected Mr. Smith as Delegate to Con- 
 gress. The committee reported that no Delegate had ever been admit- 
 ted from territory not yet organized under the laws of the United 
 States, and that to admit such a Delegate would establish a dangerous 
 precedent. The admission of Mr. Smith would be a (jiuasi recognition 
 of New Mexico as an existing government — a recognition which it was 
 not in the power of the House alone to give. Moreover, two-thirds 
 of the territory and population of New Mexico were east of the Rio 
 Grande, and all this territory was claimed by Texas. Mr. Smith him- 
 self was a resident of this portion of the Territory. If the claim of 
 Texas was well founded these people were already represented; and 
 whether it was or not, the House ought not to take an}'' action infer- 
 entially denying its validity. 
 
 The minority held that the question of the admission of a Delegate- 
 was not a question of law or precedent, but purely of the judgment 
 of the House upon the particular facts of an individual case. The 
 settled character of New Mexico, its former status in the Mexican 
 Republic, its large population, and the importance of its interests 
 under the control of Congress furnished, sti'ong reasons why the dis- 
 cretion of the House should be exercised in its favor. The claim of 
 
 H. Doc. 510 9 
 
130 DIGEST OF CONTESTED ELECTION CASES. 
 
 Texas to a portion of New Mexico had never been established; it had 
 always been resisted by Mexico and the people of New Mexico, and 
 by the executive department of our own Government. The House 
 ought not to take any action which would amount to a substantial 
 recognition of that claim. 
 
 The case was debated at considerable hmgth in the House, and the 
 subjoit was finally disposed of by laying it on the table, by a vote of 
 103 to 93. 
 
 [1 Bart., 107-115.] 
 
 (2) Babbitt. 
 
 Acknission of delegate from the alleged ^^ State of Dexeret.'''' Com- 
 mittee reported against ad/mission. Delegate refused admission. 
 
 Report by Mr. Strong. 
 
 A convention of inhabitants of the Great Salt Lake region had met 
 and adopted measures for the establishment of a ''State of Deseret."' 
 They drew up a memorial to Congress and elected Mr. Babbitt a del- 
 egate to present this memorial, and on the adoption of any form of 
 government to represent the State of Deseret in Congress. The 
 committee reported that Delegates had uniformly been admitted only 
 from Territories organized under the Constitution and laws of the 
 United States; that the admission of Mr. Babbitt would operate as a 
 quasi recognition of the legal existence of the "State of Deseret" — a 
 recognition not competent to be given by the House alone; and also 
 that the credentials of Mr. Babbitt only showed that he had been 
 selected to represent his constituency upon the adoption of some form 
 of government, and hence it was evidently not contemplated that he 
 should be admitted previous to the adoption of any form of government. 
 
 The debate was chiefly upon the question of the expediency of admit- 
 ting the delegate. The whole subject was laid on the table, hy a vote 
 of 104 to 78. 
 
 [1 Bart., 116-118.] 
 
 (8) Miller ps. Thompson. 
 
 Rejected returns. Vntcv a/xt en ii^rong counties. JLajorlty report for 
 sitting member; minority repmrt for contestant. House vacated the seat. 
 
 Majority report by Mr. Strong; minority report by Mr. Van Dyke. 
 
 According to the official can\ass the sitting. member had a majority 
 of 386 votes, but this official canvass did not include the votes cast in 
 several precincts. If all the votes cast in the district wore counted, 
 contestant would have a majority of 59 votes. Upon most of the ques- 
 tions raised the committee agreed, and counted all the votes and pre- 
 cincts rejected for informality. The issues on which the case turned 
 and which were chiefly discussed in the reports, were three — (1) the 
 vote of Kanesville, rejected by the commissioners of Monroe County; 
 (2) the vote of Boone Township, Polk County; and (3) alleged illegal 
 votes in Boone Township, Dallas County. 
 
 In Kanesville the vote was: Miller, 493; Thompson, 30. This vote 
 had been duly returned to the clerk of Monroe County, but he refused 
 to receive it, and the county commissioners did not count the vote of 
 this township. The action of the clork was condemned by the com- 
 mittee, but the majority found that upon the evidence the vote of this 
 
THIETY-FIRST CONGRESS. 131 
 
 township could not be counted, first, because the commissioners of 
 Monroe Countj^ had no right to appoint judges of elecjtion and provide 
 for an election, as was done in this case; and, second, because Kanes- 
 ville was not as a matter of fact within the territory attached to Mon- 
 roe County and under its jurisdiction. 
 
 At this time most of the western half of the State of Iowa was unorga- 
 nized and sparsely settled. To each of the frontier counties was attached, 
 for election and other purposes, that portion of the unorganized country 
 lying west of it. Among the various provisions for the government 
 of this territory were found two; one giving the county commissioners 
 of the counties to which it was attached the power to establish town- 
 ships in it, and to appoint the place where the electors should meet for 
 the first township election; and another giving them the power, if it 
 was not . divided into townships, to establish voting precincts and 
 appoint judges. Where townships were established, the power to 
 appoint judges seems to have resided in the people at the first elec- 
 tion; at subsequent elections the township trustees were to act as 
 judges. The commissioners of Monroe County had established the 
 township of Kanesville and appointed judges, who held an election and 
 duly returned the votes. The committee held that the power of the 
 commissioners to appoint judges was confined to [trecaict^ where no 
 townships were organized, and that the appointment of judges in a 
 to ffnship was in excess of their powers. They could only appoint a 
 place for the first township election, and no other election could be 
 held until after this township election, the time for which was later 
 than the Congressional election in question. 
 
 But the main objection to the votes of Kanesville was the fact that 
 it was not as a matter of fact within the territory attached to Monroe 
 County Recent surveys showed that the voting place was 6 miles 
 north of a line drawn due west from the northern limit of Moni'oe 
 County, and most of the voters lived still farther north. They were 
 consequently attached to Mahaska Countj^, the next county north, and 
 had a right to vote only in that county or in precincts established under 
 its authority. The fact that the voters heheved at the time that they 
 were due west of Monroe County (the place was 125 miles to the west, 
 and there had been no surveys at the time of the election) was imma- 
 terial, as under the laws of Iowa the right to vote was restricted to the 
 county in which the voter actually resided, and not to that in which 
 he believed himself to reside. 
 
 Contestant claimed that the vote of Boone Township, Polk County, 
 should be rejected, on the ground that Boone Township was in the 
 Second and not in the First Congressional district. The First Con- 
 gressional district included the counties in the southern half of the 
 State, and all the unorganized territory south of a line running due 
 west from the northwest corner of Polk County. The Second district 
 included the northern counties and the unorganized territory north 
 of the above line. Polk County was in the First district; Boone Town- 
 ship (afterwards Boone County) was in the unorganized territory 
 north "of the dividing line, but it was attached to Polk County for 
 election purposes. The constitution of Iowa provided that territory 
 so attached to a county should be considered as forming a jiwrt of it 
 for election purposes. The districting act provided that no county 
 should be divided in forming the districts. It was claimed that the 
 provision of the districting act di'awing the line between Polk County 
 
132 DIGEST OF CONTESTED ELECTION CASES. 
 
 and Boone Township ov County was a virtual repeal of the former act 
 attaching them. But the committee held that if the districting act did 
 separate the two counties it rather rendered the act void. But the 
 purpose of the act was evidently that the whole vote of a county 
 should be canvassed together and form a part of the vote of one dis- 
 trict. Boone Township was attached to Polk County for election pur- 
 poses; its inhabitants t'ould vote in no other county, and they must 
 therefore be considered as belonging to the same district as Polk 
 County. 
 
 The only other question was that of the legality of a number of 
 votes cast in Boone Township, Dallas County. These voters came 
 from the extreme western part of the State, and traveled sixteen days' 
 journey to get to the voting place. They had a right to vote in what- 
 ever county they resided due west of. There was testimony in regard 
 to the places of residence of 42 of them, which the majority of the 
 committee found sufficient to show that the northernmost of them 
 resided south of a line drawn due west from the southern border of 
 Dallas County. They had therefore a right to vote in Mahaska, but 
 not in Dallas County. Contestant conceded that 38 of them voted for 
 him, and they were accordingly deducted from his vote. 
 
 According to these findings the majority of the sitting member was 
 increased to 478; or, if the vote of Kanesville was counted, he would 
 still have a majority of 16 votes. The committee accordingh' recom- 
 mended a resolution declaring him elet^ted. 
 
 The minority differed upon all three of these issues. The voters 
 who voted at Kanesville nad an unquestioned right to vote in the 
 First Congressional disti'ict, and they should not be deprived of their 
 votes on technical grounds, unless those grounds were exceedingly 
 strong. The county commissioners had always exercised the ri^ht of 
 appointing election judges in the unorganized territory, and the ]udges 
 so appointed in this case had conducted the election fairly and in strict 
 compliance with the law. A line run since the election showed that 
 Kanesville was north of the northern line of Monroe County, but at 
 the time of the election there had been no surveys. There was at the 
 time of the election an admitted line which ran north of Kanesville, 
 and upon the basis of this line the county of ^Monroe had exercised 
 jurisdiction, and the people had based their actions upon the assump- 
 tion that thej^ were within the jurisdiction of Monroe County. While 
 the facts as now established might prevent any future jurisdiition by 
 Monroe Count}', they could not invalidate the acts done under a past 
 recognized jurisdiction. 
 
 Under the act for districting the State, Boone Township,- Boone 
 County, was in the Second Congressional district, and its inhabitants 
 had no right to vote in the First district, in spite of the fact that by an 
 earlier law Boone County, of which Boone Township was a part, had 
 been attached to Polk count}' for election purposes, and that Polk 
 County was in the First district. Under the law of the United States 
 no district could elect more than one representative, and it followed 
 that the inhabitants of one district could not vote for the representa- 
 tive of another district. Moreover, under the same law which attached 
 Boone County to Polk County more than half the territory of the 
 Second district was attached to Polk County, and it certainly could 
 not have been the intention of the legislature to have the First district 
 include the larger portion of the teri-itory assigned to the Second. 
 
THIRTY-FIRST CONGRESS. 133 
 
 The votes cast in Boone Township, therefore, oupfht not to be counted 
 in the First district. 
 
 The votes alleged to have been illegally cast in Boone Township, 
 Dallas County, were, with possibly 10 exceptions, not shown to be 
 illegal. The evidence did not show, conclusively, that their residences 
 were not due west of Dallas County. If these 10 were deducted, and 
 the vote of Boone Township, Polk County, counted, the contestant 
 would still have a majority, and he was consequently, in any view of 
 the case, entitled to the seat. 
 
 The case was debated at considerable length, and the resolution pre- 
 sented by the majority was rejected by a vote of 102 to 94. The reso- 
 lution declaring the contestant elected was then defeated by the cast- 
 ing vote of the Speaker, and the governor of Iowa was notified that a 
 vacancy existed. 
 
 [1 Bart., 118-137.] 
 
 (1) LiTTEL V.I. ROBBINS. 
 
 Fraud; false cnunting; hallot-hox staffing. Majority report fm^ sit- 
 ting meiiihcr; minority rejxn^t to drclari; xrat vacant. Sitting memher 
 retained the seat. 
 
 Majority report by Mr. Strong; minority report by Mr. Van Dyke. 
 
 According to the returns the sitting member received a majority of 
 410 votes. The district was all within the county of Philadelphia, and 
 no charges were made against the election except in Penn district, a 
 suburb of Philadelphia. In the two precincts of this district a major- 
 ity of 755 votes was returned for the sitting member. The contestant 
 alleged that in these two precincts 385 votes were returned which were 
 not ^st, and that 94 votes which were cast for him were not counted. 
 The committee called attention to the ■ fact that it was necessary to 
 establish both of these charges in order to overcome the majority of 
 the sitting member, and that no attempt had been made to establish 
 the latter charge. 
 
 All the testimony' m regard to the first charge was taken by the con- 
 testant, the sitting member having taken no testimdny at all. The 
 chief evidence that more votes were returned than cast was a list kept 
 in each precinct by outside parties, stationed at the voting window. 
 The ofiicial poll lists in the two precincts contained 385 names not 
 found on these "window lists." The question at issue was whether 
 these lists had been kept with sufficient accuracy to overthrow the 
 prima facie correctness of the returns. The majority found that they 
 nad not been so kept. In the first precinct the list was kept by five 
 different persons, each serving during a portion of the daj^. It was 
 largely kept by placing a pencil dot before the names of the voters on 
 the assessor's list as they voted. It was a crowded city district, and 
 there was often such a press at the polls that it was impossible for the 
 list keepers to see all the votes. The assessor's list they had was not 
 strictly alphabetical, and they would probably not always find the 
 name of one voter before the next one voted. The "window list" 
 only included the votes cast from outside the window, but some votes 
 were certainly cast from inside, and it was customary in Pennsylvania 
 to allow the aged and infirm to vote from inside the room. Several 
 ersons were shown to have voted who were not on the list, and a list 
 ept by one of the inspectors inside, while confessedly incomplete, and 
 
134 DIGEST OF CONTESTED ELECTION CASES. 
 
 containing many less names than were returned by the board, contained 
 111 more than were on the "window list." 
 
 The list at the second precinct was kept by two persons, who had no 
 motive in keeping it accurately except curiosity. It was kept by writ- 
 ing down the names of voters" as they voted during part of theday on 
 small slips of paper, which were afterwards fastened together in book 
 form. There was such a press around the polls that they were repeat- 
 edly pushed away from the window, and persons might thus have voted 
 without their knowledge. 
 
 Under the Pennsylvania law very careful provision was made to 
 insure a fair election. There was very little possibility of mistake, 
 and no chance for fraud except by the collusion of live election officers, 
 each of whom was sworn to perform his duty and liable to heavy penal- 
 ties for failure to do so. No one portion of these "window lists" had 
 more than one witness behind it, and against that witness was the offi- 
 cial oaths of five election officers. This fact and the circumstances 
 already mentioned as showing the probability of inaccuracy in the 
 lists left it impossible to say that there was a preponderance of evi- 
 deqce that the retui'ns were fraudulent. 
 
 There was no evidence to sustain the charge that the official list con- 
 tained names of nonresidents, and nothing except what might be 
 inferred from the evidence already mentioned to sustain the charge of 
 ballot box stuffing, and the committee accordingly^ recommended a 
 resolution declaring the sitting member entitled to his seat. 
 
 The minority (minority report and most of majoritj^ report omitted 
 from 1 Bart.) held that the charges of contestant were substantially 
 proved. The ' ' window lists " may not have been entirely accurate, but 
 they were substantially so, and thej' certainly could not have omitted 
 over a third of the votes cast, as they did if the poll lists were correct. 
 The election officers were all of contestee's party, and if they had 
 chosen to commit fraud they had abundant opportunity to do so. The 
 evidence presented was certainly more than sufficient to overcome the 
 friiiia facie of the returns, and to render it incumbent on the sitting 
 member to call the election officers or produce some evidence to sus- 
 tain their correctness. There were other circumstances going to show 
 the probability that more votes were counted than cast. The most 
 suspicious circumstance, however, was that contestant had issued sub- 
 poenas for all of the voters whose names were on the official list but 
 not on the "window list," and that not one of them could be found. 
 This would show, what the other testimony already indicated, that 
 they were purely imaginary persons. 
 
 It would be entirely competent for the House to throw out the entire 
 election at these two fraudulent precincts, which would J>■i"^ the seat 
 to the contestant; but the minority recommended, as pro'^ ■; jiy the fair- 
 est course, that the election be declared void. 
 
 After a brief debate the House adopted '^^ '■■:,olution presented 
 by the majority, without division, and ^c itting member retained 
 the seat. 
 
 [1 Bart., 138-1-11, and Keport No. 488, tiiot session Thirty -first Con- 
 gress.] 
 
THIRTY-FIRST CONGRESS. 135 
 
 (5) Perkins m. Moekison. 
 
 Whether election, to fill vacancy to he held in old district or new. 
 Majority report for s^ttu^g memher; minority report for contesta^it. 
 Sitting memher retained the f<eaf. 
 
 Majority report by Mr. Strong; minority report by Mr. Mc- 
 Gaughey. 
 
 At the time of the election of members to the Thirty-first Congress 
 the Third district of New Hampshire was composed of two counties. 
 A redistricting act was subsequently passed, to take effect upon its 
 passage, in which the Third district was composed of the same two 
 counties and four additional towns. Mr. Wilson, the Representative 
 for the Third district, resigned, and the governor issued his precept 
 for an election to fill the vacancy, addressed to the Third district as 
 newly constituted. The election was held, and in the whole district 
 the sitting member received a majority, but in the two counties con- 
 stituting the original district the contestant received the majorit}^. 
 The committee reported that the only district having legal existence 
 . at the time the election was held was the district as constituted by the 
 new law. That law was valid unless it was in conflict with the Consti- 
 tution or some law of the United States, which was not claimed. 
 Representatives are the representatives of all the people of their 
 States, and so the argument from double representation did not apply. 
 The question of the policy or justice of the law was not for the House 
 to consider. The fact that the State might have been so redistricted 
 that it would be impossible to determine from which district the elec- 
 tion should be fillea did not affect the question, as the possibility that 
 a right may be abused does not destroy the right. 
 
 The minority held that it was plain that the redistricting act was 
 only intended to apply to future Congresses. A vacancy "is the 
 occurrence of an event by which a portion of the people are left 
 unrepresented," and it ought to be filled bj^ the people thus left with- 
 out representation. The people of the four towns whose votes decided 
 the result of this election in favor of the sitting member were already 
 represented by another Representative. If the people in whose repre- 
 sentation the vacancy occurred did not have the right to fill it, it was 
 impossible to say to whom that right belonged, as the numbering of 
 the districts was immaterial, and the territory or population of the 
 old district might be equally divided between two new districts, neither 
 of which would have the old number. 
 
 After considerable debate the House confirmed the right of the sit- 
 ting member to his seat by a vote of 98 to 90. 
 
 [1 Bart., 142-147.] 
 
 (6) Mbsservet. 
 
 Right of Delegate from Nen.o Mexico to admission. Committee 
 reported against admission. No action hy the House. 
 
 Report by Mr. Strong. 
 
 As already noticed in the case of Hugh N. Smith, a convention of 
 the people of New Mexico had met at Santa Fe and drawn up a plan 
 for a Territorial government and selected Mr. Smith as Delegate. 
 Before any decision had been made by the House in this case another con- 
 
136 DIGEST OF CONTESTED ELECTION CASES. 
 
 vention met in Santa Fe and adopted measures for a State government. 
 Under the regulations adopted by this convention Mr. Messervey was 
 elected as a Representative in Congre>s. He presented his credentials 
 as such, but only asked to be admitted as a Territorial Delegate. The 
 committee reported that he could certainly not be admitted as a Dele- 
 gate from the Territory of New Mexico upon an election and creden- 
 tials purporting to constitute him a Representative of the State of New 
 Mexico. The same reasons were given against his admission as were 
 given in the previous cases of Smith and Babbitt, with the additional 
 one that as a form of Territorial government had now been adopted 
 for New Mexico no consideration of expediency could be urged in 
 favor of seating the claimant. 
 
 The case was not acted upon in the House. 
 
 [1 Bart., 148-152.] 
 
THIRTY-SECOND CONGRESS. 137 
 
 THIRTY-SECOND CONGRESS, 1851-1853. 
 
 Com/niittee on EJrcti(m». 
 
 Mr. Disney, Ohio, Mr. Caskie, Virginia, 
 
 Ashe, North Carolina, Ewing, Kentucijj', 
 
 Williams, Tennessee, Davis, Massachusetts, 
 
 Hamilton, Maryland, Gamble, Pennsylvania, 
 
 Mr. ScHERMERHGEN, New York. 
 
 Case. 
 Hendrick B. Wright vs. Henry M. Fuller, Pennsi/lvam'.a. 
 
 Wright vs. Fuller. 
 
 Irregularities; illegal votes. Majority report to declare seat vacant; 
 minority report for contestee. Gontestee retained the s^ttt. 
 
 Majoritj' report by Mr. Ashe; minority report b}" Mr. Davis. 
 
 According to the returns the sitting member had a majority of 59 
 votes. The contest was confined to Danville precinct, Montour 
 County, where the vote was 32 for contestant and 659 for contestee. 
 The contestant attacked this precinct on the ground of irregularities 
 in the organization and conduct of the election b jard, and also charged 
 that illegal votes sufficient in number to change the result were cast 
 in this precinct for the contestee. 
 
 The contestee objected to the sufficiency of the notice of contest, on 
 the ground that it should have included the names of the voters 
 alleged to have voted illegally, and that it should have alleged more 
 particularly by whom and in what manner the irregularities com- 
 plained of were committed. As this was the first case under the law 
 of 1851 for taking testimony, both the majority and the minority dis- 
 cussed to some length the question of the sufficiency of the notice. 
 The majority held that the notice was sufficient, in that it alleged 
 illegal votes cast at a particular poll sufficient in number to change 
 the result of the election, and specific irregularities committed at the 
 same poll. If the law had intended that the names of the illegal voters 
 should be included, it would have explicitly required it, as in another 
 section it did explicitly require that the names of the witnesses should 
 be given in the notices to take testimony. In many cases, of which 
 this was one, it would be practically impossible to give in advance the 
 names of all illegal voters, and any such rigid requirement would 
 defeat the end of the law. 
 
 The intention of the law requiring this notice to be given was to prevent any sur- 
 prise being practiced, to put the sitting member upon a proper defense. 
 
 The notice of contest in this case was sufficient for this purpose. 
 
 The irregularities complained of were that the various officers of 
 election usurped each other's functions; that unsworn outsider's 
 assisted in the election, and that these irregularities had for their 
 purpose and result the reception of a large number of illegal votes. 
 Under the laws of Pennsylvania the election board consisted of a judge. 
 
138 DIGEST OF CONTESTED ELECTION CASES. 
 
 two inspectors, and two clerks. The duties of these officers were dif- 
 ferent, and the oath taken by each only bound him to perform the 
 duties of his own office; so that, the committee held, any one of them 
 performing the duties of another was j[>ro hao vice unsworn. It ap- 
 peared that during part of the day the judge performed the duties of 
 an inspectoi-, an inspector performed the duties of a clerk, a clerk 
 performed the duties of an inspector, an unsworn outsider performed 
 the duties of a clerk, and the assessor, who was required to be in 
 attendance with his assessment lists, devoted himself to distributing 
 tickets. 
 
 On ordinary occasions, where there were no charges of fraud or 
 misconduct, such irregularities might be overlooked, but in this case 
 such charges were made and fully sustained; and under such circum- 
 stances to overlook the irregularities would be to open wide the door 
 to fraud. If this were a case arising under the laws of a State, the 
 proper remedj' might be to punish the officers for misconduct, but as 
 the House had no power to punish State officers the only remedy 
 was to declare the election void. 
 
 With such irregularities it was not surprising to find 1 vote in 5 ille- 
 gal. The vote cast was very much larger than had ever been cast in 
 the precinct before, and naturally aroused suspicion. It was shown 
 that 41 foreigners voted who had been naturalized since the election, 
 and hence could not have been qualified voters at that time. Ninety- 
 four persons voted whose names were not on the assessor's list, and 
 against whose names the words "tax," "age," etc., had not been writ- 
 ten, as required by law, to show that they had made proof of qualifica- 
 tion. Thirty-nine persons appeared to have voted under the provision 
 for persons between the ages of 21 and 22, a most extraordinary pro- 
 portion. There were also 9 votes of nonresidents. The efforts of 
 contestant to show all the illegal votes, and to show how they were 
 cast, were in a measure frustrated by the refusal of witnesses to obey 
 the subpoenas of the commissioner. As on this account he had not been 
 able to show enough illegal votes cast for contestee to overcome the 
 returned majority, the committee could not recommend seating the con- 
 testant, but recommended that the seat be declared ^•acant. 
 
 The minority (only part of minority report given in 1 Bart.) held 
 that, there being no charges of fraud, the contestant having admittedl3' 
 failed to show enough illegal votes cast for contestee to overcome the 
 majority, and the irregularities being such as the courts of Pennsyl- 
 vania had decided to be immaterial, the case of contestant was not made 
 out and there was no ground for setting aside the election. 
 
 The notice of contest ought to have been held insufficient, because 
 neither the names nor the number of illegal voters were given. The 
 words "specify particularlj^ " in the law clearly required this degree 
 of particularitjr, and it had always been required by the House even in 
 the absence of law. 
 
 If the 41 unnaturalized votes and the 3 nonresidents were taken as 
 proved, it would not affect the result, especially in view of the 13 ille- 
 gal votes proved and conceded to have been cast for contestant at other 
 polls. The evidence in regard to the alien votes was unsatisfactory, 
 in that it did not establish the identity of the voters, and there was 
 proof in a considerable number of cases showing several persons of the 
 same name. There was, moreover, no pretense of proof how these 
 voters voted. The votes attacked because the election officers had 
 
THIRTY-SECOND CONGRESS. 139 
 
 failed to write £he reasons for their reception after the names on the 
 poll book were not shown to be illegal, as such omission was common, 
 and occurred on man}' of the poll books before the committee. It was 
 not a fatal irregularity. The complaint of contestant that witnesses 
 had refused to obey the subpoenas of the commissioner was not justi- 
 fied. The subpoenas were issued in the name of the Commonwealth of 
 Pennsylvania, instead of the United States, and were otherwise illegal 
 and nonenforceable. The commissioner himself showed the most fla- 
 grant partisanship in favor of contestant, and witnesses were not much 
 to be blamed for not caring to appear before such a commissioner. 
 
 The irregularities complained of did not affect the substance of the 
 election, and could easily be explained by the ordinary circumstances 
 of an election. The courts in Pennsylvania, as everywhere, had 
 always held that such irregularities, in the absence of fraud, did not 
 vitiate an election; and there was no allegation of fraud in this case. 
 
 After considerable debate the House laid the whole subject on the 
 table by a vote of 87 to T4, which was substantially a decision in favor 
 of contestee and the recommendations of the minority, as it left Mr. 
 Fuller in his seat. 
 
 [1 Bart., 152-164, and Report No. 136, first session Thirty-second 
 Congress.] 
 
140 DIGEST OF CONTESTED ELECTION CASES. 
 
 THIRTY-THIRD CONGRESS, 1853-1855. 
 
 Voiii/m.ittee rm, Elrctioii-s. 
 
 Mr. Stanton, Kentucky, Mr. Steattox, New Jer.sey , 
 
 Gamble, Pennsylvania, Dickinson, Massachusetts, 
 
 EwiNG, Kentucky, Bliss, Ohio, 
 
 Seward, Georgia, Clakk, Michigan, 
 
 Mr. Madison, New York. 
 
 William Carr Lane m. Jos6 Manuel Gallegos, New Mexico. 
 
 Lane vs. Gallegos. 
 
 Irre(jn]ariti(/-<<; Indian votes. Report fr/r contestee. Oontestee 
 retained the neat. 
 
 Report by Mr. Stanton. 
 
 The contestant claimed that many polls where majorities were cast 
 for contestee ought to have been rejected and that other polls were 
 wrongly rejected, to the prejudice of contestant. The committee 
 found that, as might have been expected in a Territory newly admit- 
 ted, whose people did not understand the forms of our la-^s. there 
 Were many irregularities in the election and returns; but as these 
 irregularities did not affect the substance of the election and there was 
 no proof of fraud they were disregarded. The main irregularity 
 consisted in returning the poll books separately from the abstract of 
 votes, and a fewda3's later. A number of Indians offered to vote, but 
 • their votes were refused, as the committee held, properlj^ They sus- 
 tained tribal relations and were like other savage tribes. The only 
 return rejected by the committee was that of a precinct where all the 
 votes were cast by Indians and the election was organized by the 
 Indians and held by their chiefs without authority of law. 
 
 The resolution presented by the committee sustaining the right of 
 contestee to his seat was adopted without debate or division. 
 
 [IBart., 164-166.] 
 
THIKTY-FOURTH CONGRESS. 141 
 
 THIRTY-FOURTH CONGRESS, 1855-1857. 
 
 Oomiiiitti'C (1)1 Elections. 
 
 Mr. Israel Washburn, Jr. , Mtiine, Mr. Hickman, Pennsylvania, 
 Stephens, Georgia, Colfax, Indiana, 
 
 Watson, Ohiio, Smith, Alabama, 
 
 Spinner, New York, Bingham, Ohio, 
 
 Mr. Oliver, Missouri. 
 
 In the second .session Mr. Savage, of Tennessee took the place of 
 Mr. Oliver. In the third session Mr. OliVer again took the place 
 of Mr. Sayage. 
 
 Gases. 
 
 (1) J. S. Turney vs. Samuel S. Marshall, and P. B. Fouke /'x. Lyman 
 Trumbull, IlUnais. 
 
 (2) William B. Archer vs. James C. Allen, Illinvis. 
 
 (3) James A, MillikenTO. Thomas J. D. Fuller, Maine. 
 
 (4) Miguel A. Otero vs. Jose M. Gallegos, New Mexico. 
 
 (5) A. H. Eeeder vs. J. W. Whitfield, Kansas. 
 
 (6) Hiram P." Bennet vs. Bird B. Chapman, Nebnixkd. 
 
 (7) S. B. Clark vs. Augustus Hall, loiai. 
 
 (8) A. H. Reeder c^. J. W. Whitfield (second case), Kansas. 
 
 (1) Turney va-. Marshall, and Fouke vs. Trumbull. 
 
 Pvwei' of States to superadd qualiiications. Report for sifting mem- 
 iers. Sitting members retained seats. 
 
 Report hj Mr. Bingham. 
 
 Messrs. Marshall and Trumbull had each received a large majority 
 of the votes cast in their respective districts. Their elections were 
 contested on the ground that all the votes cast for them were nullities, 
 under the following provision of the constitution of Illinois: 
 
 The judges of the supreme and circuit courts shall not be eligible to any other 
 office of public trust or profit in this State, or the United States, during the term for 
 which they are elected, nor for one year thereafter. All votes for either of them 
 for any elective office (except that of judge of the supreme or circuit court) given by 
 the general assembly or the people shall -be void. 
 
 Mr. Marshall had been elected to the circuit and Mr. Trumbull to 
 the supreme court of Illinois, each for terms which (with the addi- 
 tional year of disqualification) would have extended beyond the time 
 at which they were elected to Congress. The committee, quoting the 
 well-known opinions of Story and Kent, held that the States had no 
 power to superadd qualifications for Representative in Congress to 
 those prescribed in the Constitution. Messrs. Marshall and Trumbull 
 were possessed of all the constitutional qualifications, and the people had 
 a right, guaranteed by the Constitution, to elect them to Congress, and 
 they could not be deprived of this right by any State law or constitu- 
 tion. It was contended that the question was not one of qualification, 
 but of election under the laws of Illinois, but the committee held that 
 
142 DIGEST OF CONTESTED ELECTION CASES. 
 
 inasmuch as the votes wei'e conceded to be the votes of qualified elec- 
 tors, cast at the place and time and in the manner prescribed by law, 
 there could be no question in regard to the election except that of the 
 qualification of the returned members. 
 
 After a short debate the House sustained the conclusion of the com- 
 mittee by a vote of 125 to 5. 
 
 [1 Bart., 167-169.] 
 
 (2) Aecheb m. Allen. 
 
 Recount; illegal votes. Majority report for contestant; minority 
 report for contestee. House vacated the seat. 
 
 Majority reportby Mr. Washburn; minority report by Mr. Stephens. 
 
 According to the returns the sitting member had a majority of 1 
 vote. The contestant served a notice of contest, containing the follow- 
 ing specification : 
 
 That the returns made by the returning officers, as officially announced, are incor- 
 rect, and that the poll books of the several counties in this district show that I 
 received a majority of the legal votes polled in the said district for the said office, 
 and am entitled to the certificate of election therefrom. 
 
 This notice was seasonably sent to Washington, but through inad- 
 vertence the notice to take testimony was not served until nine days be- 
 fore the time the testimony was to be taken (the law requiring ten days)._ 
 The sitting member objected to the testimony taken,- on the ground 
 of insufficient notice. The committee, with the assent of both parties, 
 passed a resolution giving the parties forty days additional in which to 
 take testimony. Before this time had expired the House passed a 
 resolution calling on the committee to report what action they had 
 had in the case. The committee reported these facts, with a statement 
 that their action was in accordance with many precedents, and in the 
 interest of fairness. 
 
 The additional testimon}^ having been taken, the committee on the 
 whole case reported in favor of the contestant; the minority reported 
 for contestee. The contestee objected to the notice of contest (whose 
 only specification upon which evidence was taken is quoted al)ove) on 
 the ground that it did not "specify particularly" the grounds upon 
 which contestant relied. The committee held that the notice was suf- 
 ficient "to authorize an investigation of the correctness of the returns 
 made by the returning officers of anj^ precinct in the district. The 
 notice embraced all the precincts in general terms, and was as good a 
 compliance with the law of 1851, and as serviceable to the sitting mem- 
 ber as if every precinct in the district had been specificall}'' named."' 
 
 The grounds of contest, as developed by the evidence, were two: A 
 recount of ballots in one precinct made while the testimony was being 
 taken, and 3 illegal votes. The recount showed 1 less vote for the 
 contestee and 3 more for the contestant than were shown h\ the orig- 
 inal count. The 3 additional votes for the contestant were ballots 
 which were not counted for cither candidate at the first count, on the 
 ground that both names were attempted to be erased. A third count, 
 made a year later, while the additional evidence was being taken, con- 
 firmed the recount. The ballot box had been securely locked and 
 kept by one of the judges, another judge taking the key. The key 
 was lost, but the judge who had the box had another key of his own 
 which would fit the lock. This judge was a political partisan of con- 
 
THIRTY-FOUKTH CONGRESS. 143 
 
 testee, and would not have been likely to tamper with the box in the 
 interest of contestant. He testified that it had not been tampered 
 with at all. The committee had no doubt that the ballots recounted 
 were the same as those first recounted, and in the same condition, and 
 accepted the result of the recount. The original ballots not counted 
 at the first count were in evidence, and the committee were of the 
 opinion that at least one of them, and probably two, ought to be counted, 
 as was done on the recount. If either of them was counted it would 
 elect the contestant. 
 
 Of the 3 illegal votes charged, 2 were perhaps illegal; but there was 
 no competent evidence how they were cast. The other was not proved 
 to be illegal. 
 
 The minority held that the notice of contest was insufiicient, in that 
 there were no particular specifications of the grounds relied on. 
 
 It was almost as vague and indefinite as if it had simply notified the sitting mem- 
 ber that the contestant intended to claim the seat upon the grounds that he was 
 duly elected and that the sitting member was not. 
 
 The law of Congress we do not regard as merely directory or cumulative, but as 
 peremptory and binding in its import and intention as any other law regulating any 
 other judicial proceeding. The House, in judging of the election returns of its mem- 
 bers, sits as a court; their proceedings are judicial in their character, and why it is 
 not as competent for Congress by law to regulate the proceeding in this court as in 
 any other? 
 
 ' But if the testimony were admitted it was not sufficient. The recount 
 took pb.ce six months after the election, and during all that time the 
 box and a key had been in the possession of one man. The other key 
 was lost, and might have been found and used by some unknown 
 person. So long as there was a possibility that the ballots might have 
 been tampered with, it would be a dangerous precedent to allow a 
 recount. But if it were allowed, it would not change the result. The 
 3 ballots for contestant not counted on the first count ought not to be 
 counted, as it was the evident intention of the voter to erase the names. 
 If the alleged mistake of 1 in favor of contestee were allowed, it would 
 only make the election a tie. But of the 3 illegal votes charged the 
 only one in regard to whom the proof was sufficient was shown to 
 have voted for contestant instead of contestee, and this would still 
 elect contestee by a majority of 1. 
 
 After some debate, the resolution declaring the contestee not elected 
 was passed by a vote of 94 to 90. The resolution declaring the con- 
 testant elected was then lost by a vote of 89 to 91, and the Speaker 
 was directed to inform the governor of Illinois of the vacancy. 
 
 [1 Bart., 169-176, and Reports Nos. 8 and 167, first session Thirty- 
 fourth Congress (parts of all three reports omitted in 1 Bartlett).] 
 
 (3) MiLLIKEN VH. FUIXEE. 
 
 Irregularities. Repm't for amtaxtee. Contestee retained the seat. 
 
 Keport by Mr. Spinner. 
 
 The result of the election would not be changed unless the votes of 
 plantations were thrown out because no lists of voters were returned 
 to the secretary of state, or because the election officers were elected 
 at the meeting in April instead of the meeting in March, and the 
 committee considered only these questions. As to the last point, the 
 committee were unanimous in the opinion that as no fraud was alleged, 
 
144 DIGEST OF CONTESTED ELECTION CASES. 
 
 and the persons officiating were officers defacto^ the votes were right- 
 fully counted. As to the other point, the committee were divided as 
 to what their opinion would have been if it were an original question; 
 but as the contemporaneous decision of the State canvassers had rec- 
 ognized the returns as valid, they did not feel authorized to exclude 
 the votes. 
 
 The House passed the resolution declaring the sitting member 
 elected without debate or division. 
 
 [IBart., 176, 177. J 
 
 (4) Oteko vw. Gallegos. 
 
 Illegal votes; irreijidarlt'm^; fraud. Report for contestant. Con- 
 testant seated. 
 
 Report by Mr. Smith. 
 
 The contestant alleged that in certain specified precincts the votes 
 of Mexican citizens were illegally cast for contestee. He specified the 
 precincts and the number of votes attacked in each. The contestee 
 objected that the notice was insufficient and that he should have been 
 given a list of the names of the voters attacked. The committee held 
 "that the notice was quite sufficient to authorize the taking of the 
 testimonj'." 
 
 Under the treaty by which Isew Mexico was ceded to the United 
 States, it was provided that all the inhabitants who might choose to 
 retain their Mexican citizenship might do so, but that all who did not 
 declare their intention to retain their Mexican citizenship within one 
 year from the date of the treaty should be held to have elected to 
 become citizens of the United States. The contestee objected to the 
 authority of the tribunal before whom the voters in question were 
 alleged to have declared their intention. Congress had provided no 
 tribunal, but the committee held that this failure of Congress could not 
 be so construed as to prevent the carrying out of the treaty stipulation. 
 The military governor of the Territory had, within the year, issued a 
 proclamation directing that there should be opened in the prefectures 
 of the several counties registers of enrollment of those ivho should elect 
 to retain the character of Mexican citizens. This proclamation was 
 carried out, and large numbers of persons were enrolled. The com- 
 mittee held that in the absence of any Congressional enactment, -the 
 governor was the proper person to designate the tribunal and pre- 
 scribe the mode of making the declaration ; and that any declaration 
 made in good faith, under the above proclamation, was legally A'alid. 
 
 There was evidence to show that 143 persons voted for the sitting 
 member whose names were the same as names found on these enroll- 
 ments. This the committee held to be ^//v'/y^ff/J^tvV evidence that the 
 persons who voted were not American citizens, and to shift the burden 
 of proof to th(^ opposite party. There was some evidence tending to 
 show that 12 of the voters might not be the same as those on the enroll- 
 ment, or might have been improperly placed thereon; and while this 
 evidence was unsatisfactory, the committee allowed these votes to 
 stand. The remainder were illegal, and were more than sufficient to 
 overturn the returned majoi'ity of the sitting member. 
 
 One precinct had been thrown out by the probate judge for fraud 
 and irregularities, and contestee asked that it bo counted. But it 
 appeared that the election was practically viva mcc, the judge crying 
 
THIETy-KOUETH CONGEESS. 145 
 
 each vote as it was cast, in violation of the law; that the election offi- 
 cers were not sworn; that the ballots, which were required to be deliv- 
 ered by the voters in person, were handled and written upon by an 
 unsworn outsider; that the legal poll books were not used, but loose 
 sheets of paper, and that there were 192 ballots in the box not num- 
 bered, and in excess of the names on the poll book. Upon these facts, 
 and the judicial determination of the probate judge, the committee held 
 that the return was properly rejected. 
 
 The sitting member asked to have one return thrown out where he 
 was returned as receiving only 18 votes, on the ground that 124 per- 
 sons testified that they voted for him. But the testimony was not 
 taken before the officer named in the notice, and the testimony of the 
 voters did not show whether or not they could read, or otherwise knew 
 for whom they voted. It was merely a list of names, with a certifi- 
 cate of the judge that each of the persons named made oath that he was 
 a resident of the precinct in question and voted for contestee. To 
 admit this sort of testimony to overthrow the acts of the officers of elec- 
 tion would establish a dangerous precedent. This testimony could not 
 be true unless fraud was committed, with the connivance of all the 
 election officers. Testimony should first have been introduced to show 
 this fraud. 
 
 The committee recommended resolutions declaring contestant elected, 
 and after arguments by contestant and contestee, the House passed the 
 resolutions without division. 
 
 [1 Bartlett, 177-185, and Report No. 90, first session Thirty-fourth 
 Congress (part of report not given in 1 Bartlett).] 
 
 (5) Reeder vs. Whitfield. 
 
 Zaw under which election held invalid on account of violence and 
 intimidation. Oii preliminary question the majority reported in favor 
 of sending for persons and payers and bringing them to Washingto7i; 
 the minor'ity reported that no investigation was demanded. The Ilouse 
 sent a special committee to Kansas to take testimony. On the final case 
 the moAority reported for the contestant; tJie minority for the contestee. 
 TJie House vacated the seat. 
 
 Majority report on preliminary question by Mr. Hickman; minority 
 report by Mr. Stephens. 
 
 Majority report on final case by Mr. Washburn; minority report 
 by Mr. Stephens. 
 
 This case involves the disturbances in Kansas following the Kansas- 
 Nebraska act. It is not necessary to enter fully into the historical 
 questions involved. The contestant claimed that the law under which 
 the election was held was invalid, because the Territorial legislature by 
 which it was passed was not elected by the people of Kansas, but was 
 imposed upon them by an armed invading force. The contestant did 
 not claim his election under this law, or any other, but by virtue of 
 an election held by the people independently of the law. He alleged 
 that at the election at which contestee claimed to have been elected 
 large numbers of illegal votes were cast by the persons who had 
 invaded the Territory from Missouri. 
 
 The committee called attention to the public importance of the 
 questions involved, and quoted in detail toe startling statements of 
 
 H. Doc. 510 10 
 
146 DIGEST OF CONTESTED ELECTION CASES. 
 
 facts which the contestant offered to prove. If these facts could be 
 ' proved it was of the highest importance to the House and the country 
 ' that a full investigation should be had. The state of affairs in Kansa,s 
 was alleged to be such that it would be impracticable to take the testi- 
 mony in any other way than by sending for persons and papers, and 
 bringing them to Washington, and the committee accordingly recom- 
 mended a resolution empowering the committee to send for persons 
 j and papers. It was objected that the. contestant could not be heard to 
 I object to the validity of the Kansas legislature, inasmuch as he had 
 ' himself, as governor of Kansas, issued certificates of election to its 
 members, and held official communication with it as a legislative body. 
 But the committee held that the principle of estoppel ought not to be 
 applied by the House to a case so plainly calling for the most search- 
 ing investigation, and also that in any case this principle could not be 
 applied to the rights of the people of Kansas, whom contestant pro- 
 I f essed to represent. 
 
 1 The minority held that the contestant, upon his own showing, could 
 establish no valid claim to the seat held by contestee, and hence had 
 no standing as a contestant under the law. The investigation asked 
 for was reallj^ not an investigation into the election of the sitting 
 member, but into the election of the members of the Territorial legis- 
 lature of Kansas. This was a jurisdiction which the House had never 
 before claimed, and which the minority did not believe it possessed. 
 If, however, the investigation was to be made it might better be done 
 by sending a commission to Kansas. 
 
 The House at first adopted the resolution presented by the com- 
 mittee, but reconsidered the vote, and sent it back to the committee. 
 The resolution finally adopted by the House provided for the appoint- 
 ment of a committee of three members to proceed to Kansas and take 
 evidence in regard to all the troubles in Kansas. Messrs. Sherman, 
 Howard, and Oliver were appointed, and conducted the investigation. 
 They reported a large amount of evidence, from which they drew the 
 iConclusions that each election held in the Territory had been carried 
 by organized invasion from the State of Missouri; that the alleged 
 Territorial legislature was an illegally constituted body, with no power 
 to pass valid laws; that the election under which the sitting member 
 held his seat was not held under any valid law, and could only be 
 regarded as an expression of the choice of those resident citizens who 
 voted for him; that the election under which contestant claimed 
 the seat was not held under any law, and could similarly only be 
 regarded as an expression of the choice of those resident citizens' who 
 voted for him; that more resident citizens voted for the contestant 
 than for the sitting member; and that in the present condition of the 
 Territory a fair election could not be held. 
 
 The committee reported that these conclusions were fully sustained 
 by the evidence. Neither of the claimants was elected under anv ^■alid 
 law. But the committee could not under the circumstances recom- 
 mend that the seat be declared \'acant. The office of Delegate is not 
 created by the Constitution, but Delegates are received as a matter of 
 favor. The House might admit private persons to appear before it as 
 counsel, and it might admit any persons it chose to represent the peo- 
 ple of a Territor3\ This was a most extraordinary case, and under all 
 its peculiar circumstances the committee were of the opinion that the 
 
THIKTY-FOURTH CONGRESS. 147 
 
 contestant, having received an expression of their choice from the 
 largest number of legal voters, ought to be admitted. 
 
 The minority (minoiity report not given in 1 Bart.) held that the 
 House had no power to inquire into the validity of the election and 
 organization of the legislature of Kansas. The laws passed by that 
 legislature must be held to be ^alid unless they were in conflict with 
 the organic law of the Territory or the Constitution of the United 
 States. The contestee having recei'^^ed an undisputed majority of the 
 votes cast at the election held under the law, even after the elimina- 
 tion of all illegal votes, he was entitled to retain the seat. The only 
 evidence elicited by the investigating committee throwing any light 
 on the question of the validity of the legislature was a private admis- 
 sion of contestant that it was legally organized. The testimony did 
 not show the condition of violence and intimidation claimed. Every 
 citizen of Kansas was free to vote as he pleased, and if it was true that 
 many nonresident votes were cast, their number was not sufficient to 
 afl^ect the result of the election. 
 
 As to the proposition of the committee to unseat the contestee 
 because he was not elected under a valid law, and then seat the con- 
 testant, who did not claim to have been elected under any law, the 
 minority said that they could look upon it "as nothing short of an 
 open outrage upon both law and right, and if it be sanctioned by the 
 House, an act without a parallel in the annals of parliamentary history. " 
 
 The resolution declaring that contestee was not elected was agreed 
 to after a prolonged debate by a vote of 110 to 92. The resolution 
 giving the seat to the contestant was rejected by a vote of 88 to 113. 
 The seat thus being vacated, a new election was held, which gave rise 
 to a second contest (see page 149). 
 
 [1 Bart., 186-204, and Report No. 275, first session Thirty -fourth 
 Congress (part 2, minority report, not given in 1 Bartlett).] 
 
 (6) Bennet vs. Chapman. 
 
 Irregularities. Majority report for contestant,' minority report for 
 contestee. Contestee retained the seat. 
 
 Majority report by Mr. Watson; minority report by Mr. Stephens. 
 
 Counting all the votes cast in the Territory, contestant had a majorit^y 
 of 13 votes. But the governor and Territorial canvassers had rejected 
 the returns of about half the counties in the Territory for various 
 irregularities, and contestee claimed that these returns, or enough of 
 them to give him the majority, were properly rejected. 
 
 Some of the returns were rejected on the ground that the poll books 
 containing the precinct returns were forwarded by the county register 
 to the office of the secretary of the Territory. The law required them 
 to be kept in the office of the county register, there to be canvassed 
 by the probate judge and three householders, and the canvass to be 
 forwarded to the secretary of the Territory. But the committee held 
 that the law was merely directory, and that the irregularity was not 
 such as to justify the rejection of the votes. The probate judge and 
 three householders had no power in their canvass except to count the 
 votes returned to them. The original precinct returns were better 
 evidence of the vote than any canvass of them could be, and the only 
 
148 DIGEST OF CONTESTED ELECTION CASES. 
 
 irregularit}' wa.s that the Territorial canvassers had better evidence 
 before them than the law required them to have. 
 
 In one county the clerk certified a county abstract in due form, and 
 also certified abstracts of the precinct votes. On these latter abstracts 
 he certified that no pol 1 books had been returned to him from certain 
 of the precincts. The committee held that if this was a fact, the clerk's 
 certificate was not evidence of it. In one of the precincts there was 
 afiirmative proof that a poll book was kept, and e\'eii if it were admitted 
 that it- was not transmitted to the county clerk with the abstract of 
 votes, this ought not to invalidate the return. 
 
 Two counties had been rejected because of illegal votes and because 
 the county canvassers had refused to certify to the election of a county 
 officer voted for at the same election. It was claimed that if this rejec- 
 tion was not sustained, at least those votes cast on the "half-breed 
 tract" should be rejected. But the committee found no evidence that 
 they had ever been counted. The' certificates on the returns indicated 
 that they had not been counted, and while these certificates might not 
 be evidence of the fact, they were certainly not evidence to the contrary. 
 Even if they were counted, the committee were of the opinion that the 
 voters had a right to vote. They were citizens of the United States, 
 the territory on which they lived was different from ordinary Indian 
 reservations, and even if they were trespassers on it, the trespass should 
 not disfranchise them. The other objections to their votes were not 
 sustained by evidence. 
 
 The contestant having received a majority of all the votes, the com- 
 mittee reported resolutions declaring him elected. 
 
 Mr. Stephens presented a minority report, holding that contestee 
 was legally elected. The omission of the county canvass of votes he 
 held to be a fatal irregularity. The election officers were appointed 
 by the probate judge, and unless their returns were canvassed by him 
 there was no evidence that the persons making returns were the elec- 
 tion officers. The poll books, or lists of voters, were the only means 
 of detecting illegal votes, and the returns not accompanied bj- them 
 were properly rejected. But if all these votes, and all votes except 
 those cast on the "half-breed land" were counted, contestee would still 
 have a majority. The officers who held the election in the " half-breed 
 land" acted without legal appointment and were not sworn. The per- 
 sons on this land were outside of the civil jurisdiction of the Territory, 
 refused to pay taxes or perform the duties of citizens, and were clearly 
 not entitled to vote. 
 
 After a brief debate the House confirmed the right of the sitting 
 member to his seat by a vote of 69 to 63. 
 
 [1 Bart., 204-21i.] 
 
 (7) Clark tw. Hall. 
 
 Irre<jvlnri,ti.rs. Report for contestci . Conteatce retained the seat. 
 
 Report by Mr. Bingham. 
 
 The committee reported that some of the county abstracts were 
 infoi'mal, but in accordance with their decision in the previous case 
 (Bennet vs. Chapman) they did not reject them. It also appeared 
 that some of the abstracts did not contain all the votes cast, but as the 
 changes required by the evidence would not overcome the returned 
 
THIRTY-FOURTH CONGRESS. 149 
 
 majority of the contestee they reported a resolution declaring him 
 elected. The House agreed to the resolution without debate or 
 division. 
 
 [1 Bart., 215.] 
 
 (8) Reeder '/w. Whitfield (second case). 
 
 Same issues aftjirst case; and also right ofgovenibr of Kansas to order 
 special election. Majority report to decla/re unit vacant; 'in inority repm't 
 for sitting Delegate. Resolution laid' on the taljle., leaving contestee in 
 his seat. 
 
 Majority report hy Mr. Washburn; minority report by Mr. Oliver. 
 
 The House having declared the seat of the Delegate from Kansas 
 vacant, the governor issued a proclamation fixing a time for a new 
 election. At this election Mr. Whitfield received all the votes cast. 
 He was admitted to the House pending the contest, after a long debate. 
 
 The committee found that the election was held by officers and 
 according to laws deriving their authority from the legislature of 
 Kansas, which had already been decided by the House to be an illegal 
 body and incapable of passing valid laws. But if its legality were 
 conceded, there was no law under which this special election could 
 have been held. The organic law of the Territory empowered the 
 governor to fix the time for holding the first election, but subsequent 
 elections were to be held at times fixed by the legislature. Among 
 the provisions of the laws passed by the legislature was no provision 
 for a special election like this. If, however, it had appeared that the 
 sitting member was the choice of a majority of the citizens of Kansas, 
 the committee would be inclined to waive these considerations and 
 recomniiend that the House exercise its discretionary power to admit 
 him. But this did not appear, and the contrary seemed probable. 
 The election was held under a law passed by, and by officers indirectly 
 appointed by, the usurping legislature. These officers might be trusted 
 to carry out the law according to the evident intent of the legislature. 
 The law was an extraordinary one. It prescribed no period of resi- 
 dence as a qualification for voting, but only actual inhabitancy in the 
 Territory at the moment of voting. The election officers might at 
 their discretion receive evidence concerning the qualification of voters, 
 or examine the voters themselves; in the latter case no other evidence 
 was to be received to contradict the voter's oath. All the voters were 
 required to take a test oath to support the fugitive-slave law and the 
 Kansas-Nebraska act. The laws thus permitted any citizen of Missouri 
 to vote who would swear that he was at the time of the election an 
 inhabitant of Kansas, while disfranchising all of the citizens of Kansas 
 who could not subscribe to a test oath committing themselves to the 
 principles of the party in power. A large proportion of the citizens 
 of Kansas did not vote at the election, both because the}' were disfran- 
 chised by the test oath and because they believed the election to be 
 held without authority of law. 
 
 The committee recommended that the seat be declared vacant. 
 
 The minority held that the charges that the legislature of Kansas 
 was elected by fraud and usurpation were unfounded. While there 
 might have been individual instances of violence, the majority of the 
 legislature were elected by a majority of the honafide citizens of Kansas. 
 
150 DIGEST OF CONTESTED ELECTION CASES. 
 
 The spirit of the organic act of the Territory justified the governor in 
 fixing the date for the special election, and it was still more clearly 
 made his duty by the spirit of the act of 1817. The objection to the 
 election on this score was technical, and not of the sort that ought to 
 be addressed to a tribunal like the House of Representatives. 
 
 The House, by a vote of 96 to 85, tabled the resolution reported by 
 the committee, which left Mr. Whitfield in his seat. The only debate 
 on this case was upon the swearing in of the Delegate when he first 
 appeared. 
 
 [1 Bart., 215-222.] 
 
THIRTY -FIFTH CONGRESS. 151 
 
 THIRTY-FIFTH CONGRESS, 1857-1859. 
 
 Committee on Elections. 
 
 Mr. Harris, Illinois, Mr. Phillips, Pennsylvania, 
 
 BoYCE, South Carolina, Gilmer, North Carolina, 
 
 Washburn, Maine, Lamar, Mississippi, 
 
 Stevenson, Kentucky, Wilson, Indiana, 
 
 Mr. Clark, Connecticut. 
 
 In the second session, Messrs. Wright, of Tennessee, and Cava- 
 NAUGH, of Minnesota, in place of Messrs. Phillips and Harris. 
 
 (1) Clement L. Vallandigham vs. Lewis D. Campbell, Ohio. 
 
 (2^ Henry P. Brooks vs. Henry Winter Davis, Maryland. 
 
 (3) W. W. Phelps and James M. Cavanaugh, Minnesota. 
 
 (4) Alpheus G. Fuller vs. W. W. Kingsbury, Minnesota Territory. 
 
 (5) Wm. Pinkney Whyte vs. J. Morrison Harris, Maryland. 
 
 (6) Bird B. Chapman vs. Fenner Ferguson, Nebraska. 
 
 (1) Vallandigham vs. Campbell. 
 
 Application for further time to take testimony refused. Illegal 
 votes. No majority report. First minority report for cmitesta/nt; sec- 
 ond minority report for contestee; third minority report to vacate seat. 
 Contestant seated. 
 
 Majority report on preliminary question bj' Mr. Harris; minority 
 report by Mr. Wilson. 
 
 First report on main case by Mr. Lamar; second report by Mr. 
 Gilmer; third report by Mr. Harris. 
 
 Contestee applied to the committee to recommend that time be given 
 to take further testimony. The committee reported that the main 
 grounds on which the application was based seemed to be that con- 
 testee, having been a member of the previous House, had been unable 
 to attend at the taking of testimony, and that contestant had occupied 
 the whole of the sixty days, leaving no time for contestee. The com- 
 mittee found that the first ground furnished no valid excuse, as the law 
 plainly contemplated that the parties might be represented by agents. 
 The second ground was also' insufficient, for, while the law prevented 
 either party from taking testimony in two places at once, it did not 
 prevent both parties from taking testimony at the same time. 
 
 The minority recommended that the extension be granted. The 
 contestant had occupied the whole time, in some cases taking testimony 
 in two places at once, so that he had utilized seventj' -five days within 
 the sixty days, while contestee had only been able to use ten days. 
 At the close of the sixty days contestee had proposed that both parties 
 continue to take testimony, waiving the objections of time, but con- 
 testant had refused, and no course was left to contestee but to make 
 application to the House when in session. 
 
 The House, by a vote of 114 to 101, refused to extend the time. 
 
152 DIGEST OF CONTESTED ELECTION CASES. 
 
 On the main case the committee were unable to agree. Four 
 uicinbers agreed to the report of Mr. Lamar for contestant, four to 
 the report of Mr. Gilmer for contestee, and Mr. Harris, the chairman, 
 recommended that the seat be declared vacant. The House adopted 
 the conclusions of Mr. Lamar's report. 
 
 There were a number of technical questions raised in regard to the 
 evidence of contestant. It was objected that the notice was insuffi- 
 cient, in not giving the names of the voters objected to, but the first 
 minority held that it was sufficient to designate them bj' the class to 
 which they belonged. The only evidence of the whole \'ote as returned 
 was an abstract of votes from the secretary of state's office, which was 
 procured after the expiration of the sixty days. But it was held that 
 such documentary evidence as proved itself might be presented at any 
 time. The fact that the voters objected to voted was proved bj' oral 
 testimony, and it was objected that the poll books should have been 
 put in evidence. But the poll books in Ohio were not records, and 
 there was no provision for obtaining copies of them. In any case they 
 would be only a part of the evidence necessary to establish the fact of 
 voting, as there must be other evidence of identity. In accordance 
 with the decision in the New Jersey case, parol evidence alone might 
 be received in the absence of the poll books. The first minority also 
 held that the declarations of voters as to their qualifications and how 
 they voted might be admitted. This was the settled rule in England, 
 and had nearly always been followed bj^ Congress. It was not so 
 much an exception to the general rule in regard to hearsaj- testimony, 
 as it was based on the fact that the voter w;hose vote was objected to 
 was himself a party to the proceedings. 
 
 According to the returns the sitting member had a majority of 
 19 votes. Three or four ballots were counted for both sides which 
 had been rejected for various reasons by the officers of election. A 
 number of votes were also deducted from each side as having been 
 cast by minors, persons of unsound mind, aliens, and nonresidents of 
 the ward, township, county, or State; but the main contention was 
 in regard to 16 votes alleged to have been cast for the contestee by 
 persons of color. The first minority found that these persons were 
 disqualified under the constitution of Ohio, and that the proof was con- 
 clusive that 15 of them voted for the sitting member. They claimed 
 to be more than half white, and hence to be '' white'' within the mean- 
 ing of the Constitution; but it was held that persons having a visible 
 admixture of African blood werfe not white, and that they also came 
 within the scope of the Dred Scott decision declaring them not to be 
 citizens of the United States. There was direct testimony that part 
 of them voted for the sitting member, and the fact that the right of 
 all of them to vote was sustained by the friends of sitting member at 
 the polls and strongly opposed by those of contestant was circum- 
 stantial evidence such as had alwaj^s been received to show how a vote 
 was cast. Deducting the votes according to the findings of the first 
 minority would give contestant a majority of 23 votes, or if those 
 votes in regard to which the onljr evidence was the declarations of the 
 voters were not included his majority would be 14. This minority 
 therefore recommended resolutions declaring contestant elected. 
 
 The second minority held that no case was made out for the con- 
 testant, either on the pleadings or the evidence. The notice of contest 
 was insufficient in that it alleged no facts which, if proved, would 
 
THIKTT-FIFTH C0NGEES8. 153 
 
 justify giving the seat to the contestant. The only ground relied on 
 seemed to be the admission or exclusion of voters, and the only way in 
 which such a ground could be particularly specified was by naming the 
 voters and the legal objection to their admission, which was not done. 
 There was, further, no allegation that any particular number of votes 
 was returned for either party or that contestee received on the returns 
 any particular majority, and hence there was no way of knowing, 
 without going beyond the facts alleged in the pleadings, whether the 
 illegal voters were sufficient to overcome the returned majority. 
 
 Similarly, there was no way from the evidence of knowing how many 
 votes were cast for either party or what majority the contestee 
 received. The only attempt at proof was the abstract of votes, which 
 was introduced long after the legal time and after the House had 
 refused to receive any additional testimony. The law of 1861 con- 
 tained provisions in regard to documentary as well as oral testimony, 
 and hence its. limiting provisions applied to both; and this state- 
 ment, even if put in in time, would not be evidence of the votes cast. 
 The original evidence of the casting of the votes was the poll books, 
 which were not introduced. This abstract was merely an abstract of 
 the contents of other abstracts purporting to be based on the poll books. 
 The poll books were a record, and their contents could only be proved 
 by copies. 
 
 These poll books were the written official evidence of the fact of the 
 casting of the vptes, and until thej^ were introduced or their destruc- 
 tion proved no secondary evidence of the fact could be received. 
 
 But waiving all these points, a detailed examination of the individ- 
 ual votes attacked would show a majority for the sitting member of 
 at least 16 votes. The second minority therefore recommended reso- 
 lutions declaring contestee elected. 
 
 The chairman of the committee, Mr. Harris (this report is not given 
 in 1 Bart.), was unable to reach a decision between the parties, and 
 favored sending the case back to the people for a new election. De- 
 ducting only such votes as there was clear and convincing proof against, 
 the ma]ority of the sitting member would be 22 votes. There were 
 73 other votes which the contestant claimed were sufficiently proved, 
 but the proof seemed to be conclusive as to only 8 of them. Six others 
 were attacked by proof strongly tending to show them illegal, but not 
 conclusive. The proof in regard to the remainder was insufficient. 
 Contestant had thus not conclusively established his right to the seat, 
 but the evidence produced almost a conviction that he was elected. In 
 deciding between the two claimants the House would be almost as 
 likely to decide wrong as right, to whichever claimant it assigned the 
 seat. It seemed to be more just in a case like this to regard the parties 
 as on an equal footing rather than to hold the presumptions strongly 
 in favor of the returned member, and when the House could not feel 
 certain which one was elected the fairest course would be to remit 
 the election to the people for a new trial. 
 
 The House after a long debate seated the contestant bjr a vote of 
 107 to 100. 
 
 [1 Bart., 223-244, and Keport No. 380, first session Thirty-fifth Con^ 
 gress, pp. 22-31.] 
 
154 digest of contested election cases. 
 
 (2) Bbooks vs. Davis. 
 
 Application for special investigation iy the House refused. 
 
 Majority report by Mr. Boyce; minority report by Mr. Phillips. 
 
 The contestant served a notice of contest on the returned member, 
 under the law of 1851, but no testimony was taken. The contestant 
 presented a memorial alleging that the seat of Mr. Brooks ought to be 
 vacated on account of the violence and intimidation prevailing in the 
 city of Baltimore at the time of the election, but that on account of the 
 implication of the city authorities in this disorder, and their conse- 
 quent unwillingness to protect witnesses or prevent further intimida- 
 tion, it would be impossible to take the testimony under the law of 
 1851. He petitioned the House for an investigation either by the 
 House or a committee. 
 
 The committee recommended that the petition be not granted. There 
 was no evidence presented to show that the evidence might not he 
 taken regularly, and the fact that in another case, in the same city and 
 involving the same issues, testimony was now being quietly taken 
 tended to the contrary conclusion. 
 
 The minority (minority report not given in 1 Bart.) held that this 
 was not an ordinary case coming under the law, inasmuch as contestant 
 did not claim the seat, and was not, strictly speaking, a contestant. 
 The allegations were so serious as to demand investigation, especially 
 as the governor of the State, in his message, had publicly declared 
 that there had been no free expression of the will of the people in 
 Baltimore. 
 
 After a brief debate, by a vote of 115 to 89, the House refused to 
 grant the request. 
 
 [1 Bart., 245-248, and Report No. 105, first session Thirty-fifth Con- 
 gress, pp. 5-7.] 
 
 (3) Phelps and Cavanaugh. 
 
 Election of Representatives hefore ths adnnissimi of the State. Claim- 
 ants admitted. 
 
 Majority report by Mr. Harris; minority report by Mr. Gilmer. 
 
 The Minnesota enabling act provided that the State should be enti- 
 tled to one Representative and as many more as the census should show 
 it entitled to. The constitution formed under the enabling act provided 
 for the election of three Representatives from the State at large, and 
 the schedule provided for their election at the same time that the con- 
 stitution was submitted to the people for ratification. The election 
 was held, and Messrs. Phelps, Cavanaugh, and one other person were 
 elected. When the constitution was submitted to Congress for ratifi- 
 cation it was changed so as to provide for only two Representatives, 
 and the State was then admitted. Messrs. Phelps and Ca\'anauo-h two 
 of the persons elected when the constitution was adopted, presented 
 their certificates. 
 
 The committee held that the fact that the election was held before 
 the admission of the State did not invalidate it. 
 
 The act of admission into the Union, upon being consummated, relates back to 
 and legalizes every act of the Territorial authorities exercised in pursuance of the 
 original authority conferred. 
 
THIRTY-FIFTH CONGEE88. 155 
 
 The fact that the election was by general ticket did not invalidate it, 
 as the second section of the apportionment act of 1842 only applied to 
 that apportionment, and even where it applied the House had refused 
 to recognize or enforce it. The fact that the law under which the 
 claimants were elected provided for the election of three Representa- 
 tives did not render it void, and the committee would not consider the 
 question whether it rendered it voidable until it was raised by some 
 citizen of the State of Minnesota. Only two certificates were pre- 
 sented, and the House had no knowledge that more than two persons 
 were elected. The question was simply whether these two claimants 
 had a prima fame right to be sworn in. As there were no other claim- 
 ants, and no question was raised against their election, provided any- 
 one was elected, the committee recommended that they be sworn in, 
 without prejudice to the right of any person to contest their seats. 
 
 The minority (minority report not given in 1 Bart.) held that Rep- 
 resentatives could not be elected by a State not yet in existence, "to 
 represent her nonentity," and even if they could the law under which 
 this election was held was void. If there were any precedents for the 
 admission of Delegates elected before the admission of the States, they 
 were the results of party necessity, and deserved only to be expunged 
 from the journals. But even conceding this, it was impossible to hold 
 the law in question valid. If the election of the claimants was held 
 under any law, it was under a law providing for the election of three 
 Representatives, and an election of only two Representatives would be 
 contrary to that law, and void. But an election of three Representa- 
 tives was contrary to the organic law, as ratified liy Congress, and was 
 void. It was a jiotorious fact that three persons were voted for and 
 certified as elected, though only two certificates were presented. The 
 person having the third from the highest number of votes was as much 
 elected as the first two, and the House had no more authority to select 
 two out of the three than it would have to select between two persons 
 having an equal number of votes. 
 
 After a very brief debate, the resolutions presented by the com- 
 mittee were passed, by a vote of 135 to 63, and the claimants were 
 admitted. 
 
 [1 Bart., 248-251, and Report No. 408, first session Thirty-fifth Con- 
 gress, pp. 5-11.] 
 
 (4) Fuller m. Kingsbuet. 
 
 Right of delegate from Minnesota Territory to sit after the admis- 
 sion of the State into the Union as a representative of the portion of the 
 Territory not vnchided wiihiri the limits of the State. Majority report 
 for sitting member^ mvrwril/y report for contestant. House vacated the 
 seat. 
 
 Majority report by Mr. Harris; minority report by Mr. Gilmer. 
 
 The Territory of Minnesota had included a large amount of terri- 
 tory west of the limits assigned to the State of Minnesota. At the 
 same time that the election was held for members of the Thirty-fifth 
 Congress, in anticipation of the admission of the State into the Union, 
 Mr. Kingsbury was elected as Delegate from the Territory of Minne- 
 sota and took nis seat at the beginning of the Congress. After the 
 admission of the State, Mr. Fuller presented a certificate from certain 
 county officers, sealed with a seal purporting to be the seal of the 
 
156 DIGEST OF CONTESTED ELECTION CASES. 
 
 "Territory of Dakota" (no such Territory had yet been organized by 
 Congress), certifying that he had been elected as a Delegate from the 
 said Territory. It was conceded that the so-called "Territory of 
 Dakota" was the same geographical area as that portion of the Terri- 
 tory of Minnesota not included within the limits of the State of Min- 
 nesota. Mr. Kingsbury claimed the right to retain his seat to repre- 
 sent this portion of the Territory, and the committee held that he 
 possessed that right. The law admitting the State of Minnesota did 
 not repeal the law organizing the Tenitory and deprive that portion 
 of the Territory not included within the limits of the State of all gov- 
 ernment. The cases of Paul Fearing, from the Northwest Territory, 
 and of H. H. Sibley, from Wisconsin Territory, had settled the prin- 
 ciple that the erection of part of a Territory into a State did not vacate 
 the seat of the delegate. Mr. Kingsbury being entitled to the seat, of 
 course Mr. Fuller was not, and the committee reported resolutions 
 sustaining the right of the sitting Delegate. 
 
 The minority found that the election for Delegate had been an 
 entirely separate one within and without the limits of the new State, 
 and that Mr. Fuller had received the majority of the votes cast out- 
 side the State. Moreover, Mr. Kingsbury was not a resident of the 
 portion of the Territory he sought to represent. The minority recom- 
 mended seating the contestant. 
 
 The debate in the House turned on the question whether the Terri- 
 tory of Minnesota still existed after the admission of the State; it 
 being apparently conceded that if any such Territory existed, Mr. 
 Kingsbury had the right to represent it. The House finally passed 
 the following resolution, by a vote of 102 to 80: 
 
 Resolved, That the admission of the State of Minnesota into the Union with the 
 boundaries prescribed in the act of admission operates as a dissolution of the terri- 
 torial organization of Minnesota; so that so-much of the late Territory of Minnesota 
 as lies without the limits of the present State of Minnesota is without any distinct, 
 legally organized government, and the people thereof are not entitled to a Delegate 
 in Congress until that right is conferred upon them by statute. 
 
 [IBart., 251-257.] 
 
 (5) Whyte vs. Harris. 
 
 Violence and intimidation,- illegal votes. Majority report to vacate 
 seat; minority report for contestee. The House laid^the lohole mhject 
 on the tahle. 
 
 Majority report by Mr. Harris; minority report by Mr. Wilson. 
 
 This case arose out of the disturbances in Baltimore attendant upon 
 the "American party" agitation. There had been disturbances at 
 two or three previous local and State elections, which had excited 
 great attention, and on account of which the governor of the State had 
 called out the military force to aid in preserving the peace at this 
 election. It was alleged, however, that in spite of these extraordinary 
 precautions, the whole election was attended by riots and violence, and 
 that there was no such thing as a free expression of the will of the 
 people. The contestant served a notice of contest, in which he alleged 
 acts of violence and intimidation at each of the precincts of the dis- 
 trict; and also, in some of the precincts, the reception of large num- 
 bers of illegal votes and various acts of fraud. 
 
 The committee called attention to the unprecedented character of 
 
THIRTY-FIFTH CONGEESS. 157 
 
 the"' case, saying that it was not an ordinary question as to which of 
 two candidates was legally elected, but "the question involved is, 
 Shall elections of members to the House of Representatives of the 
 United States be free, fair, and open to the whole body of legal elec- 
 tors?" The committee quoted from the governor's message on the 
 subject, the proclamation of the mayor, and the accounts given in non- 
 partisan newspapers to show that it was a generally conceded fact that 
 the election in question was marked by riots and violence. It was 
 claimed by some that the disturbances were the result of attacks by 
 members of the American party upon naturalized citizens, and by 
 others that the foreign-born citizens were the aggressors; but in either 
 case the effect upon the validity of the election would be the same. 
 The fatal results of the riots at previous elections had left the city in 
 a state of alarm, and the rioters at this election took advantage of this 
 feeling and were largely able to exercise the same intimidation as at 
 previous elections without the necessity of resorting to the same 
 degree of violence. An abstract of all the testimony was given, show- 
 ing at each precinct the presence of large bodies of excited men, who 
 prevented the Democratic challengers from acting and intimidated 
 Democratic voters, especially those of foreign birth, from approach- 
 ing the polls. Individual cases of assault were shown at most of the 
 polls. The witnesses for the sitting member, on the other hand, tes- 
 tified that the election was much quieter than usual and that the push- 
 ing and shouting around the polls was not such as to prevent anyone 
 from voting who desired to do so. 
 
 The tickets used by the American Party were distinguished by 
 having red stripes on the backs, so that it could easily be known for 
 whom a voter voted. The committee were of the opinion that the 
 requirements of the laws of Maryland that the election should be "by 
 ballot " implied a secret ballot, and that such marks as these practi- 
 cally rendered the election a viva voce one, and were in violation of 
 the law. These tickets greatlj^ aided the intimidation, by enabling 
 the rioters to know whom to intimidate. 
 
 The contestant claimed to have shown a very large number of illegal 
 votes and to have established his right to the seat, but his testimony 
 was inconclusive, and the committee did not give it much discussion. 
 They held, however, that the whole election should be held void for 
 rioting and intimidation. A large number of English cases was cited 
 where the election had been avoided for riot, even where the return- 
 ing officer had been able to finish the poll and comply with the pro- 
 visions of the writ. There had fortunately been but two cases in the 
 House of Representatives (Trigg m. Preston, and Biddle and Richard 
 vs. Wing, C. & H., 78, 504) in which such a charge had ever been 
 made, and as the charge had not been established in either of these 
 cases, there were no precedents as to the effect of such a charge if 
 established. But the committee held that there could be no such thing 
 as an election unless all the voters were free to vote. 
 
 An election is the free choice, by those who have the right to make it, ana wno 
 desire and seek to make it, uncompelled, unawed, and unintimidated. 
 
 There had been no such election in this case, and the committee 
 therefore reported a resolution declaring the election void and the seat 
 vacant. 
 
 The minority held that the contestant had failed either to make out 
 his own case or to destroy the validity of the election. The notice of 
 
158 DIGEST OF CONTESTED ELECTION CASES. 
 
 contest was plainly insufficient; it did not even indicate the class of 
 votes objected to as illegal, and most of its specifications were extremeh' 
 vague and general. The allegation of "intimidation of voters," even if 
 proved, would furnish no ground for vacating the election. The true 
 rule was that laid down in the case of Biddle and Richard w-s. ^^"ing 
 (C. & H., 507), where it was held that the House would not inquire 
 into the reasons why any voter or class of voters did not vote. The 
 allegations in regard to the stripes on the backs of the ballots were 
 immaterial, as there was nothing in the laws of Maryland preventing 
 such marks, and the practice seemed to have originated with contest- 
 ant's party. The complaint that the judges of election received " ' hun- 
 dreds of ballots" which they did not deposit in the boxes was not borne 
 out by the testimony. In one precinct there were 11 intoxicated men 
 who were not entitled to vote; but they were raising a disturbance, 
 and the judges of election, to avoid trouble, pretended to receive their 
 ballots, but did not deposit them in the boxes. The presence of a 
 cannon at one of the polls was not significant, as it had Ijeen at the 
 same place for j-ears, and was used for Fourth of July celebrations. 
 It was only fired twice on the day of election, and then without ball, 
 and at a time when no voters were approaching the polls. 
 
 The evidence by which contestant attempted to establish his own 
 right to the seat, and the names and number of the alleged illegal or 
 intimidated voters, was wholly hearsay, and hence inadmissible. Ille- 
 gal voting was sought to be shown by comparing the number of votes 
 returned with the number of votes cast at former elections, or the 
 estimates of witnesses as to the number of legal voters i-esident in the 
 precincts, but the evidence was fully contradicted. Lists of names 
 found on the poll books of this election, and not on those of previous 
 elections, were shown to persons who testified that they did not know 
 the voters, but the testimony was of a very unsatisfactory sort, and 
 the increase in the vote was accounted for by other witnesses. Large 
 lists of names were put in evidence, purporting to be lists of persons 
 who were intimidated from voting, but the best-proved of them only 
 showed that the witness had been told of the alleged fact by the 
 voters or their friends, and most of the lists did not even have this 
 proof. They were gathered by a large number of persons, and then 
 put in evidence by the person who consolidated the lists, few or none 
 of the original makers of the lists being called. 
 
 In regard to the alleged violence at the polls, the minority could 
 find no case in which an election had been declared void for this reason, 
 unless the violence was such as to interfere with the election and pre- 
 vent the ascertainment of the result. The testimonj' of the contestant 
 in this case was very loose and general, and when examined in connec- 
 tion with the contradicting testimony it failed to show any such con- 
 dition of extreme violence as claimed in the majority report. There 
 was no pretense that the officers of election were not able to canvass 
 the vote peaceably and correctly. The specific instances of assault 
 shown in the testimony were very few. In this whole election there 
 was no person killed, shot, or seriouslj' injured; two persons were 
 stuck with a darning needle, two had teeth knocked out, one was 
 thrown over the crowd by the heels, and eight were struck. The tes- 
 timony attempting to show more numerous cases of assault l)roke 
 down upon cross-examination. 
 
 It was an unfortunate fact that thei-e were often disturbances at the 
 
THIBTSr-FIFTH OONGBESS. 159 
 
 polls in city elections, and if the partisan accounts of occurrences at 
 many other elections were to be taken, doubtless as good ground for 
 vacating them could be shown as in this case. 
 
 Let us once establish the precedent that Representatives are to be unseated and 
 the will of the people, especially when expressed by large majorities, overruled 
 because of violence at the polls, and, while it will put all our city elections in the 
 power of the riotous and rowdy, it will inaugurate a new rule as to future cases as 
 unsound in principle as it will be bitter in its fruits. 
 
 The House, by a vote of 106 to 97, laid the whole subject on the table. 
 There was no debate on the merits of the question. 
 
 [1 Bart., 257-267, and Report No. 538, first session Thirty-fifth Con- 
 gress, pp. 1-57 (large parts of both reports omitted in 1 Bartlett).] 
 
 (6) Chapman vs. Ferguson. 
 
 Ajyplication for time to take furtlier testimony granted. Irregular- 
 ities; frauds. Majority report for contestant; minority report for 
 contestee. House laid the wiiole subject on the table. 
 
 Preliminar}' report by Mr. Harris; majority report by Mr. Wilson; 
 minority report by Mr. Boyce. 
 
 Notice of contest and answer were served, but the contestant did 
 not give notices of intention to take any testimony until more than 
 half the legal time had expired and until the contestee had gone to 
 Washington. Notices were then left at the contestee's usual place of 
 abode, and testimony was taken by contestant. The contestee made 
 afiidavit that he knew nothing of the testimony until he saw it printed. 
 The committee were of the opinion that the contestee erred in not hav- 
 . ing an attorney to represent him in the Territory, and if the interests 
 of the contestant and contestee were alone concerned they might not 
 have reached the conclusion they did; but, as the question to be deter- 
 mined was the choice of the people, they recommended an extension 
 of sixty days in which to take testimony. The House agreed to the 
 resolution recommended. 
 
 After the testimony had been taken the committee reported that the 
 contestee's majority on the face of the returns was 57, but after count- 
 ing for both parties certain precincts and votes rejected for irregu- 
 larities his majority would be 51. This majority was overcome and 
 a majority shown for contestant by rejecting illegal votes cast at two 
 precincts and throwing out a third. At the first two precincts the 
 evidence showed that the number of votes cast was very much in excess 
 of the number of residents. In one of the precincts the judges were 
 not sworn, and in the other the names "'Oliver Twist" and "Samuel 
 Weller" appeared on the poll book; and there was other evidence of 
 fraud which the committee thought would justify throwing out the 
 precincts, but they chose only to reject the illegal votes. At the third 
 precinct there w6re returned 401 votes, all but 4 for the contestee. 
 The poll was kept open long after the legal hour. Shortly before the 
 legal hour for closing one of the judges announced that only 271 votes 
 were then polled, and between 8 and 9 o'clock in the evening he 
 announced that only 373 votes were, then polled. A witness testified 
 to having seen one person vote four or five times. An old resident 
 was unfamiliar with most of the names on the poll list. At the next 
 election only one-third as many votes were cast. The judges of elec- 
 tion were sworn by a notary public, who, in Nebraska, was not author- 
 
160 PIGEST OP CONTESTED ELECTION CASES. 
 
 ized to admini.stei- oaths in .such cases. The committee rejected the 
 whole poll, but held that if this should not be done the fraudulent 
 votes and those cast after the legal hour were sufficient in number to 
 give contestant the seat. 
 
 The minority rested their case on this precinct, as, unless it was 
 rejected, the contestee's majority could not be overcome. There were 
 onl}' 15 votes received after 6 o'clock. The voters were legal voters; 
 but the minority deducted their votes, as also the votes of "Oliver 
 Twist" and "Samuel Weller " in another precinct. 
 
 In the debate the point was strongly pressed that the evidence relied 
 on by contestant was that taken during the first sixty days, and was 
 hence ex parte; most of it was also hearsay. The rebutting evidence 
 of contestee was regularly taken and cross-examined and entitled to 
 much more credit. 
 
 The House, after a short debate, laid the whole question on the table 
 by a vote of 99 to 93. 
 
 [IBart., 267-275.] 
 
THIETY-SIXTH CONGRESS. 161 
 
 THIRTY-SIXTH CONGRESS, 1859-1861. 
 
 Committee cm Elections. 
 
 Mr. GiLMEE, North Carolina, Mr. Stevenson, Kentucky, 
 
 Dawes, Massachusetts, Gartrell, Georgia, 
 
 Campbell, Pennsylvania, . Stratton, New Jersey, 
 
 BoYCE, South Carolina, McKnight, Pennsylvania, 
 
 Mr. Maeston, New Hampshire. 
 
 Cases. 
 
 (1) William A. Howard vs. George B. Cooper, Michigan. 
 
 (2) A. J. Williamson vs. D. E. Sickles, JSfew York. 
 
 (3) Samuel G. Daily vs. Experience Estabrook, Nehraska Territory. 
 
 (4) Francis P. Blair, jr., vs. J. Richard Barrett, Missouri. 
 
 (5) James S. Chrisman vs. William C. Anderson, Kentucky. 
 f6) William G. Harrison vs. Henry Winter Davis, Maryland. 
 (7) William P. Preston vs. J. Morrison Harris, Maryland. 
 
 (1) Howard vs. Cooper. 
 
 Application for further time to take testimony refused. Irregulari- 
 ties; violence and intimidation; illegal and fraudulent votes. Major- 
 ity report for contestant; minority report for contestee. Contestant 
 seated. 
 
 Majority report on preliminary question by Mr. Campbell; minority 
 report by Mr. Stevenson. 
 
 Majority report on main case by Mr. Gilmer; minority report by 
 Mr. Gartrell. 
 
 Notice of contest and answer were duly served, but contestant did 
 not take his testimony until the last few days of the sixty days, and 
 took his most important testimony on the last day. The contestee 
 took no testimony, but on the meeting of Congress presented ex parte 
 affidavits impeaching the character of one of contestant's witnesses 
 and contradicting the testimony of others, and asked that these affida- 
 vits be received as evidence or that he be given time to take the testi- 
 mony of the affiants. The committee recommended that the application 
 be not granted. Contestee had opportunity to take testimony during 
 the whole sixty days, and as he had ten days' notice of the names of 
 witnesses to be examined, he was free to procure testimony to impeach 
 them. To allow an extension simply because contestant had taken 
 testimony during the latter part of his time, and where the failure of 
 contestee to take testimony was due to his own laches, would be vir- 
 tually to repeal the law, and the committee could not recommend it. 
 
 The minority (minority report not given in 1 Bart.) recommended 
 that the extension be granted. The case should not be decided 
 on the testimony of witnesses who could be impeached, and whose 
 testimony was taken on the last day of the sixty days, when contestee 
 had no opportunity to impeach or rebut it. Contestee could not have 
 presumed that witnesses would swear falsely, and it would not have 
 
 H. Doc. 510^11 
 
162 DIGEST OF CONTESTED ELECTION CASES.- 
 
 been proper for liiin to have introduced impeaching testimony until 
 after the witnesses had testified. 
 
 The House, by a vote of 89 to 79, refused to grant the extension 
 asked for. 
 
 On the main contest the committee reported in favor of seating the 
 contestant. The returned majority of the contestee was overcome by 
 throwing out certain precincts for irregularities ' and a number of 
 fraudulent and illegal votes. There were disturbances at the polls in 
 one precinct, but the committee were doubtful as to the propriety of 
 throwing out the poll on this account, and allowed it to stand. 
 
 The Fourth Ward of the city of Detroit was thrown out for irregu- 
 larities. The alderman of the ward was ex officio an inspector, but he 
 did not act during the day, and another inspector was chosen by the 
 voters. In the evening the alderman officiated at the counting of 
 the vote. He was not sworn. It seems, also (the irregularities are not 
 clearly stated either in the reports or debates), that the tickets for 
 the city election and for the Congressional election were deposited 
 in the same box; being folded when deposited it would have been easy 
 for the voter to have cast two ballots of the same sort. 
 
 The minority quoted testimony in regard to this ward, and held 
 that the irregularities were not such as to justify its rejection. 
 
 The election at Grosse Point was held at the- house of one Wilson, 
 according to the ofiicial notice. The contestant claimed that under 
 the law it should have been held at the house of one Kline, 2 miles 
 distant. Both parties, and the majority and minority of the commit- 
 tee, seem to have assumed that if the election was held in the wrong 
 place it was void. The law was somewhat obscure, but the majority 
 held that the election should have been held at Kline's house, and was 
 consequently void. The minority held that it was properly held at 
 Wilson's house. 
 
 The vote of the township of Van Buren was thrown out by the com- 
 mittee on the ground that only two inspectors officiated, while the law 
 required three. There is no mention of this irregularity in the 
 minority report. 
 
 The committee also deducted 106 illegal and fraudulent votes. Fifty- 
 eight of these were of voters who were taken into a ward ten days before 
 the election under an agreement to furnish them board and drinks if 
 they would vote the Democratic ticket. The committee held that ten 
 days' presence in a ward under such circumstances did not constitute 
 the residence required by law. Some of these men had been in jail in 
 Canada during part of the ten days, and so did not have the required 
 length of residence even of this sort. 
 
 The minority sustained the legality of most of these votes, and disa- 
 greed with the conclusions of the majority in regard to other individ- 
 ual votes. 
 
 Neither minority report is given in 1 Bartlett. 
 
 TheHouse, by votes of 97 to 77 and 92 to 71, passed the resolutions 
 declaring contestee not elected and contestant elected. 
 
 [1 Bart., 275-288, and Report No. 87, pp. 31-37, and No. 445, pp. 
 7-16, first session Thirty-sixth Congress.] 
 
thibty-8ixth congress. 163 
 
 (2) Williamson vs. Sicbxes. 
 
 Application Jbr additional time to take testimony granted. Case not 
 rnnde out. 
 
 Majority report by Mr. Dawes; minority report by Mr. Gilmer. 
 
 The board of canvassers of the county of New York certified the 
 votes cast at the Congressional election as having been cast for "Mem- 
 ber of Congress" instead of " Eepresentative in Congress," and for 
 this reason the State canvassers refused to issue certificates of election 
 or determine the result, but announced the votes returned for each 
 candidate. The persons having received the highest number of votes 
 procured certified copies of this announcement or statement, and upon 
 the organization of the House were sworn in on these credentials. The 
 contestant in this case presented a petition reciting that he had 
 employed counsel and partly prepared a notice of contest, but that 
 as he had been advised by counsel that he could not proceed under 
 the law of 1851 until there had been some ofiicial determination of the 
 result, he had not served notice or taken any testimony. 
 
 The committee reported that the law of 1851 was not absolutely 
 binding on the House, but was a wholesome rule not to be departed 
 from without cause. Cases, however, might arise which did not come 
 within this law, and in such cases the parties must apply to the House 
 itself for authority to take any other than voluntary testimony. Con- 
 testant had acted in a iona jide belief that this was such a case, and 
 whether it was or not, the House might exercise the discretion given 
 in the law and allow supplementary evidence to be taken. The disad- 
 vantages arising from the delay were all with the contestant and not 
 with the sitting member. 
 
 The minority held that the contestant should have proceeded under 
 the law, which was "obligatory alike upon the House, the committee, 
 and the contestant," and should be followed in "all cases to which it 
 applied. The announcement of the vote by the State canvassers was 
 a determination of the result under which the contestant might have 
 proceeded. If it was not such a determination, then the contestee had 
 no jprema yaci'e right to the seat; but this question had already been 
 settled by the action of the House in admitting contestee and his col- 
 leagues. But if this case were conceded not to come under the law of 
 1851, the contestant had no better claim," for in all the cases decided 
 before 1851 it had been held that the returned member was entitled to 
 a reasonable notice, and no such notice or any notice had been given 
 in this case. 
 
 The House, by a vote of 80 to 64, passed the resolution extending 
 the time. At the next session, the testimony having been taken, the 
 committee briefly reported that contestant had failed to make out his 
 
 C3.S6 
 
 [I'Bart., 288-298.] 
 
 .(3) Daily m. Estabrook. 
 
 Irregularities; illegal voting. Report for contestant. Contestant 
 seated. 
 
 Report by Mr. Campbell: 
 
 According to the returns contestee had a majority of 300 votes, but 
 the committee found that the vote of three counties, part of the vote 
 
164 DIGEST OF CONTESTED ELECTION CASES. 
 
 of another, and one precinct in another should be thrown out. This 
 would give the majority to the contestant. The three counties thrown 
 out were unorganized counties. Under the laws of the Territory 
 unorganized counties were attached for election purposes to the coun- 
 ties lying next east of them, and there were provisions whereby they 
 could organize, by a regular election of county officers, under the 
 direction of the county authorities o.f the county to which thej' had 
 been attached. The law establishing one of the counties in issue used 
 the word "organized," and it was claimed that this fact made it an 
 organized countyj but the committee held that it could not be organ- 
 ized until a regular election of county officers had been held under the 
 law. No such election had been held, but in a convention or mass 
 meeting certain persons had been nominated whom the governor 
 afterwards commissioned or appointed. This was not a legal organi- 
 zation, and the county not being organized votes returned from it 
 directly to the governor instead of to the clerk of the next county 
 east must be rejected. It was evident also that the votes returned 
 from this county were f I'audulent. Nearl}' all of the 292 votes returned 
 from it professed to have been cast in a settlement on the south side 
 of the Platte River, and hence outside the limits of the county. This 
 settlement contained too few inhabitants to have cast so many votes, 
 and there were scarcely any settlements or inhabitants in the county 
 itself. 
 
 The votes of two other counties were also rejected as unorganized, 
 but there was also evidence in each of these cases that the votes were 
 fraudulent. One of the counties was shown to have no inhabitants at 
 all. The return of the other was opened by the governor's private 
 secretary, and by him returned to the clerk of the organized county 
 to which this county was attached, with instructions to return it to the 
 governor with the returns of that county. This return was after- 
 wards stolen, and there were reasons for believing it to have been a 
 forgery. 
 
 From another county 128 votes were returned. It was in proof 
 that there could not be over 60 voters in the county. A copy of the 
 poll book was forcibly taken from witnesses by a mob whose avowed 
 object was to prevent the exposure of fraud. The original poll book 
 was also stolen. Witnesses who had seen it testified that it was signed 
 by persons never heard of .in the county, and contained the names of 
 persons not known. The committee counted 60 votes as the largest 
 number that could have been legally cast. 
 
 One precinct was also rejected because it was on the Pawnee Indian 
 Reservation, which, by the act of Congress organizing the Territory, 
 was not a part of Nebraska Territory. 
 
 The contestee objected to the service of more than one notice of 
 contest, but the committee held that any number of notices might be 
 served, if they were all within the time prescribed bj^ law. The con- 
 testee also objected that there was no competent proof of the result of 
 the election. The evidence of the result was an abstract of votes, 
 certified from the office of the secretary of the Territory. It was 
 obtained without notice, and after the contestant's attorney had given 
 notice that he would "examine no more witnesses." The committee 
 held that the abstract was competent evidence and that, as it was not 
 the testimony of a witness and could not be cross-examined, notice was 
 not necessary. The contestee objected that this mode of procedure 
 
THIRTY-SIXTH CONGRESS. 165 
 
 would deprive him of opportunity of proving- the a>)stract to be false, 
 but the committee held that as he did not allege that it was false the 
 objection was immaterial. 
 
 The committee were unanimous in recommending the seating of 
 contestant, and the House, after a brief debate, adopted the resolu- 
 tions recommended without division. 
 
 [IBart., 299-308.]- 
 
 (4) Blair vs. Barrett. 
 
 Irregularities; frauds; illegal votes. Majority report for contest- 
 ant; minority report for contestee. Contestant seated. 
 
 Majority report b}'^ Mr. Dawes; minority report by Mr. Gilmer. 
 
 On the face of the returns (after correcting a clerical error in one 
 precinct return) the contestee had a plurality of 607 votes. The con- 
 testant claimed that this plurality was due to fraud, violence, and brib- 
 ery, and to the reception of a very large number of illegal votes. 
 
 There was an increase of some 6,000 votes in the total number of votes 
 cast in this district over the number cast at the next previous election, 
 and nearly all this increase was in the vote of the sitting member, and 
 was confined to seven or eight precincts. Such an increase, unex- 
 
 f)lained, was a very suspicious circumstance. Any cause which could 
 egitimately account for so large an increase would be something well 
 known and easily proved, and the fact that no attempt was made to 
 do so implied that it could not be done. The conclusion was strength- 
 ened by the fact that at the polls where the increase occurred there 
 were very great irregularities. In a number of precincts it did not 
 appear that the judges were sworn; one judge could not write, and 
 another was deaf. 'There were scenes of violence at the polls, in which 
 some of the judges took part. Proclamations of $1.25 for a vote were 
 made in the crowds. Men were employed on the roads a few days 
 before the election who had never been seen before, and who dis- 
 appeared the day after election. These men and others were per- 
 mitted to vote without any regard to the precautions required by the 
 law to prevent illegal voting. 
 
 The committee rejected the votes of three of these precincts, where 
 there was no proof that the officers were sworn. The contestant had 
 charged in his notice of contest that the officers were not sworn, and 
 the committee held that the burden was on the contestee to prove either 
 that they were sworn or that the votes as returned were actually cast 
 by legal voters. According to the precedents of Congress the failure 
 of the officers to be sworn required the rejection of the poll; but if in 
 this case the whole election had been fair and regular, and it had 
 appeared that the returns represented the actual choice of the legal 
 voters, freely expressed, the committee would have been inclined to 
 allow the returns to stand on " the principle that the acts of officers 
 c^^^y^cto are valid as regards the public and third persons who have 
 an interest in their acts." But the contestee having shown neither 
 the qualification of the officers nor the fairness of the vote, but the 
 contrary appearing, the votes of these three precincts were rejected. 
 There was a very large amount of testimony in regard to individual 
 illegal votes. Some of these were nonresidents, who had n?ver been 
 heard of in the precincts before or since the election. For thi s class of 
 voters the evidence was necessarily the negative testimony of old resi- 
 
166 DIGEST OF CONTESTED ELECTION CASES. 
 
 dents of the precincts, corroborated by the poll books of former elec- 
 tions, etc. The disqualification of other voters was shown by their 
 own testimony or that of their friends, or by their own admissions. 
 The way in whicli each voter voted could be easily ascertained, as the 
 ballots were numbered. 
 
 A large part of the evidence on which votes were rejected as illegal 
 consisted of comparisons of the poll lists with a city census taken soon 
 after the election. The city census takers were instructed to obtain 
 information as to birth, naturalization, length of residence, etc., and 
 when a person appeared on the poll books as voting, but the facts 
 stated in the census returns showed him not to be a qualified voter, 
 his vote was rejected. The committee held that this census was prima 
 facie evidence of the facts contained in it, and that it was propeily put 
 in evidence. Part of it was sworn to by the census takers themselves 
 and the rest bj^ persons who testified that it was an exact copy of the 
 census returns. In the first case, it was the ordinary case of witnesses 
 refreshing their memory by written memoranda; in the second case, 
 the copies were examined copies and admissible under the usual rules 
 of evidence. These census returns were corroborated by oral testi- 
 mony, and also by lists made out by old residents of the precincts 
 from their own knowledge. 
 
 Upon the evidence the committee deducted 663 votes from contestee 
 and 55 from contestant. This would make a majority of 13 votes 
 for contestant if no precincts were rejected. If the three precincts 
 where the judges were not shown to have been sworn were rejected 
 the majority would be 168. If an ex -parte afiBdavit, presented forty 
 days after the hearing before the committee, was taken as evidence 
 that the judges at one of these precincts were sworn, the majority 
 would be 134. In any case the contestant had a majority of the legal 
 votes, and the committee recommended resolutions declaring mm 
 elected. 
 
 The minority presented a very elaborate report (not given in 1 Bart- 
 lett), holding that none of the charges, except as to a few illegal votes, 
 were made out, and that contestee would have a majority of 610 votes 
 after the deduction of illegal votes from both parties. The charge of 
 bribery entirely failed of proof (this seems to have been concedea by 
 the majority also), and the charges of violence rested upon insignifi- 
 cant occurrences, magnified by the imaginations of vdtnesses, who 
 broke down when cross-examined as to the exact facts. The charges 
 of fraud and unfairness against the judges rested upon the testimony 
 of impeached witnesses, who were fully contradicted. The increase in 
 the vote over the previous election was accounted for by the interest 
 m the election of a judge and local officers, and by the recent natural- 
 ization of many foreigners. The census, so much relied on by con- 
 testant, showed nearly 8,000 legal voters who did not vote. 
 
 The only other issues were the illegal votes and the alleged failure 
 of the officers of election to be sworn. The evidence in regard to 
 illegal votes was largely hearsay, often several degrees removed. The 
 minority admitted only such hearsay testimony as rested on the declara- 
 tions or admissions of the voters themselves, and then only "whenever 
 they constituted a part of the act of voting or were offered in cor- 
 roboration of declarations made in reference thereto." The census 
 returns they considered as entirely insufficient. The ordinance for 
 taking the census did not provide for gathering information in regard 
 
THIRTY-SIXTH CONGKESS. 167 
 
 to the qualifications of voters, and information so gathered did not 
 have whatever official character the census might have as to the facts 
 legally covered by it. The census takers got their information often 
 from members of the voter's family or his neighbors or wherever they 
 could. They had no such opportunity of judging of a Aoter's quali- 
 fications as the election officers had, and no authoritj' to do so. Unless 
 the census was taken on the day of election it could not be evidence 
 of the person residing in a precinct, especially in a city, where remov- 
 als were frequent. And even taking the census as absolutely correct, 
 there was no evidence at all of the identity of the persons named in 
 it with the persons of the same name who voted and were recorded on 
 the poll list. 
 
 There was no proof that any of the judges were not sworn, and the 
 contrary strongly appeared. Upon the poll books of the three pre- 
 cincts in question appeared oaths, which were, pei'haps, irregular. In 
 one case the names of all three judges were named in the body of the 
 oath, but only two were signed; in another none were signed; in another 
 the certificate of the judge administering the oaths was under the oath 
 of the clerks, but it was evidently intended to apply to both. But as 
 the law of Missouri only required the judges to take the oath, and did 
 not require them to subscribe it, these omissions were immaterial. And 
 even if the judges had not been sworn, they were officers defacto^ and 
 in recent decisions in New York and Pennsylvania the principle that 
 the" acts of such officers, affecting third parties and the public, were 
 valid, had been applied to unsworn election officers. The precedents 
 of Congress were said to be the other way, but the minority, in an 
 elaborate review of all the cases, showed that affirmative proof of the 
 neglect or refusal of the officers to take the oath had always been 
 required, and that in most cases there had been other circumstances 
 tending to vitiate the election. 
 
 After an extended debate, the House adopted the resolutions recom- 
 mended by the majority by votes of 94 to 92, and 93 to 91, and con- 
 testant was sworn in. 
 
 [1 Bart., 308-328, and Report No. 563, first session Thirty -sixth 
 Congress, pp. 37-88.] 
 
 (6) Chrisman m. Anderson. 
 
 Mistakes in returns,' unsigned returns,' illegal votes; majority report 
 for contestee; irumority report for contestant. Contestee retavned the 
 
 Majority report by Mr. Stratton ; minority report by Mr. Gartrell. 
 
 On the race of the returns, as first made out by the county canvass- 
 ers and returned to the State canvassers, contestee had a majority 
 of 3 votes. Subsequent to the making out of the first returns, but 
 before the meeting of the State canvassers, mistakes were found, 
 which, if corrected, would make a majority of 6 votes for contestant. 
 The State canvassers refused to count amended returns, including 
 these corrections, on the ground that as the poll books (the election 
 was viva voce) were required to be sent to the county canvassers sealed, 
 and to-be canvassed immediate^, if corrections were to be allowed to 
 be made after the poll books had been opened and for some time 
 accessible to many persons, the provision for sealing would be 
 nugatory. If the State canvassers could receive corrections at all 
 
168 DIGEST OF CONTESTED ELECTION OASES. 
 
 they must receive corrections made at any time and under any cir- 
 cumstances, without any means of knowing or authority to judge of 
 these circumstances. The committee were of the opinion that the 
 decision of the State canvassers was correct, both on the ground 
 stated and on the ground that the county canvassing boards, having 
 once completed their returns, were functaft oMcio and had no author- 
 ity to reconvene and revise their work. But the committee were 
 under no such limitations as the State canvassers, and would go behind 
 all returns. If the mistakes included in the supplemental returns were 
 the only ones made contestant would have a majority on the face of 
 the returns. But going through the poll books of the whole district, 
 and correcting all mistakes, contestee had a majority of 7 votes. 
 
 There was one poll book not certified by any officer of election. 
 Deducting all the votes found on it, contestee had a majoritj- of .5-3 
 votes. Contestant charged 113 illegal votes, and contestee 211. 
 The committee found 26 illegal votes cast for contestee and 81 for con- 
 testant. Deducting these votes, contestee had a majority of 109. If 
 all the charges of illegal votes made by contestant were sustained 
 contestee would still have a majority. The committee therefore 
 reported resolutions declaring contestee elected. 
 
 The minority strongly condemned the action of the State canvassers, 
 and held that contestant ought to have been given the certificate of 
 election. The contestee was estopped from objecting to the reception 
 of amended returns, for the reason that he himself had procured the 
 first one to be sent in, and the State canvassers were estopped by their 
 own decision in a former case. ' And their ruling in this case was clearly 
 against the true construction of the law. 
 
 The law requiring the poll books to be certified over the signatures 
 of the election officers was directory merely, and voters ought not to 
 be disfranchised by the neglect of the election officers to comply with 
 this provision of the law. 
 
 Correcting all clerical errors in the returns, the minority found that 
 contestant had a majority of 8 votes. They were convinced that a 
 consideration of the evidence in regard to illegal votes would increase 
 this majority, and they therefore reported resolutions declaring con- 
 testant elected. 
 
 The House, after some debate, adopted the resolutions presented by 
 the majority by a vote of 112 to 61. 
 
 [1 Bart., 328-341.] 
 
 (6) Harrison rs. Davis. 
 
 Illegal votes,_ fraud, violence, mul intimidation. Rejtort for con- 
 testee. No action iy the lioiise. 
 
 Report by Mr. Gilmer. 
 
 The contestant asked to have the election declared void on account 
 of illegal votes, fraud, and violence. He did not claim that enough 
 illegal votes were proved to change the result (contestee received about 
 three-fourths of the votes cast), and the committee found that the proof 
 did not show more than 75 at the most. The proof of fraud or the 
 deliberate reception of illegal votes entirely failed. Some of the 
 
 1 It was denied by the canvassers and the majority of the committee that this for- 
 mer case was the same sort of a case as the present one. 
 
THIRTY-SIXTH OONaKESS. 169 
 
 judges of election, friends of the contestant, apparentlj^ by precon- 
 cert, withdrew from the polls at an early hour, but no excuse for their 
 action was shown. The law permitted the other judge to go on and 
 hold the election, and the result was certainly' not affected. 
 
 It was charged, however, that nearly all the polls were in the pos- 
 session of bands of armed rioters, and that on account of the violence 
 at the polls ' ' thousands of voters " were intimidated from voting. But 
 by a comparison of the vote of this election with that of previous elec- 
 tions it appeared that the vote was within 2,000 of the highest number 
 ever cast. If all these 2,000 voters had voted for contestant, it would 
 not affect the result. It was necessary for the contestant to prove either 
 that the number of voters intimidated was sufficient to affect the result, 
 if they had voted, or that the violence was such as actually to arrest the 
 election; but not more than 2,000 persons could have been excluded, 
 and the proof only showed 34:. The violence was not sufficient to arrest 
 the election, except at one poll, for a few minutes, and there were only 
 51 actual cases of assault and battery shown. If the whole city of Bal- 
 timore had been, as was claimed, in a state of anarchy, it would have 
 been possible to prove it by much better evidence than this. Such a 
 state of affairs, if it existed, could have been proved by the specific 
 testimony of thousands of witnesses, instead of by the vague opinions 
 of a few partisans, who broke down entirely when cross-examined as 
 to the specific facts. The election was not as quiet and orderly as could 
 have been desired, by any means, but this was largely due to the 
 conduct of contestant's partisans in going to the polls in armed and 
 organized bands. 
 
 A collision and bloodshed are the natural result of adverse parties meeting, armed, 
 at the polls. The reformers having armed for the polls, it was natural that their 
 opponents should meet them in like manner. "While no one can be surprised at the 
 result, the illegality and rashness of men combining to go armed to the polls can not 
 be too severely condemned; but it scarcely lies in the mouth of a party which has 
 organized an armed band to take charge of the police of the polls to complain that 
 others were there armed also; nor of those who drew first a weapon to complain that 
 others followed their example. 
 
 The animus of the whole case met with the strong disapproval of 
 the committee, as is shown in many places in the report. The con- 
 clusion of the report is: 
 
 Such a case, supported by such testimony, discredited by such circumstances, and 
 failing in every material allegation, conducted by a political association in the name 
 of the contestant, and inspired in great measure by personal malice against the sit- 
 ting member, manifested by the libelous allegations of the petition, disproved by the 
 testimony taken to support them, ought to be treated as a vexatious prosecution and 
 rebuked by the judgment of the House. 
 
 The committee reported a resolution declaring the sitting member 
 entitled to his seat. There was no action by the House. 
 
 [1 Bart. , 341-346, and Report No. 60, second session Thirty-sixth Con- 
 gress, pp. 1-55 (large portions of the report omitted in 1 Bartlett.)] 
 
 (7) Pkeston vs. Harris. 
 
 Illegal votes, violence, and intirmdation. Repoi't for contestee. No 
 action iy the House. 
 
 Report by Mr. McKnight. 
 
 The contestant alleged in his notice of contest various illegalities, of 
 which he offered no proof. The evidence taken was of much the same 
 
170 DIGEST OP CONTESTED ELECTION CASES. 
 
 character as that in the preceding case, but there was less of it. Not 
 over a dozen illegal votes were shown, and not more than 20 per- 
 sons were prevented from voting by violen(-.e and intimidation. TV hile 
 there were individual cases of assault, there was no such condition of 
 affairs as to justify the rejection of any of the city polls, where the 
 sitting member received large majorities. There was an entire failure 
 to prove the essential point— that enough voters had been excluded to 
 affect the result. The committee quoted the law and precedents as 
 stated in the other cases from the city of Baltimore in this and the 
 preceding Congress, and came to the conclusion that there was no 
 reason shown for vacating the seat. There was no action by the 
 House. 
 
 [1 Bart., 346-348.] 
 
THIKTY-SEVENTH CONGKESS. 171 
 
 THIRTY-SEVENTH CONGRESS, 1861-1863. 
 
 Committee on Elections. 
 
 Mr. Dawes, Massachusetts, Mr. Worcester, Ohio, 
 
 VooRHBES, Indiana, Brown, Rhode Island, 
 
 McKean, New York, Menzies, Kentucky, 
 
 LooMis, Connecticut, Patton, Pennsylvania, 
 
 Mr. Baxter, Vermont. 
 
 Cases. 
 
 (1) George K. Shiel m. A. J. Thayer, Oregon. 
 
 (2) John M. Butler vs. William E. Lehman, Pennsylvania. 
 
 (3) Andrew J. Clements, Tennessee. 
 
 (4) Charles H. Upton, Virginia. 
 
 (5) John Kline vs. John P. Verree, Pennsylvania. 
 
 (6) S. Ferguson Beach, Yi/rginia. 
 
 (7) Le Grand Byington vs. William Vandever, Lma. 
 
 (8) J. Sterling Morton vs. Samuel G. Daily, Nebraska. 
 
 (9) Joseph Segar (first case), Virginia. 
 
 (10) F. F. Lowe, California. ^ 
 
 (11) Charles Henry Foster, North Carolina. 
 
 (12) Joseph Segar (second case), Virginia. 
 
 (13) Benjamin F. Flanders and Michael Hahn, Louisiana. 
 
 (14) John B. McCloud and W. W. Wing, Virginia. 
 
 (15) Lewis McKenzie, Virginia. 
 
 (16) John B. Rodgers, Tennessee. 
 
 (17) Jennings Pigott, North Carolvna. 
 
 (18) Christopher L. Grafilin, Virginia. 
 
 (19) Alvin Hawkins, Tennessee. 
 
 (1) Shiel vs. Thayer. 
 
 ■ 
 Pight of constitutional convention, to fix time of election. Report 
 for contestant. Contestant seated. 
 
 Report by Mr. Dawes. 
 
 The contestant received the majority of votes cast at an election held 
 on the first Monday in June, 1860; the contestee the majority cast at 
 an election held November 6, 1860. The constitution of Oregon pro- 
 vided that the first election for Representative 'in Congress should be 
 held in June, and also that the "general election" should be held in 
 ' June once in two years. The committee found that among the ofiicers 
 to be elected at the general election was the Representative in Con- 
 gress. The contestant was thus elected at the time prescribed by the 
 constitution of the State. 
 
 The legislature of Oregon had assumed that it had power to fix the 
 time of the election, and had attempted to do so, but owing to a dis- 
 agreement between the houses no law had been passed. It was con- 
 ceded that there was no legal authority for the election held in 
 November, at which contestee was elected, but he claimed that the 
 people had a constitutional right to representation and could not be 
 
172 DIGEST OF COKTESTED ELECTION CASES. 
 
 deprived of it by the failure of the legislature to pass laws fixing the 
 time for the election. 
 
 The committee had no doubt that the constitution of the State had 
 fixed the time of holding the election beyond the control of the legis- 
 lature, and the contestant having been elected at the time fixed by the 
 constitution they recommended that he be seated. 
 
 In the House it was claimed that under the Constitution of the 
 United States the time for an election (at least after the first election) 
 can only be fixed by the legislature or by Congress. No time having 
 been fixed by either no valid election could be held. A resolution 
 based on this principle was defeated by a vote of 37 to 77. Mr. 
 Dawes argued that the words of the Constitution, "by the legislature 
 thereof," meant by the people, through any constituted authority. 
 The resolutions ofl'ered by the committee were adopted without 
 division. 
 
 [1 Bart., 349-352.] 
 
 (2) Butler m. Lehman. 
 
 Forgery; recount of hallots. Maj ority report for contestcmt; minority 
 report for contestee. Oontestee retained the seat. 
 
 Majority report by Mr. Loomis; minority report by Mr. Worcester. 
 
 According to the returns before the district board of canvassers (the 
 "return judges") contestant had a majority of the votes and he was 
 declared elected by that board. Subsequently it was discovered that 
 the return from one of the counties was a f orgerj^ and the I'eturn judge 
 was convicted and imprisoned for the forgerj'. If the vote of this 
 county had been correctly returned contestee would have had a ma- 
 jority, and the governor took notice of this fact and issued the certifi- 
 cate to him. As t\iB prima facie case had already been settled by the 
 admission of contestee to his seat the committee did not consider it 
 necessary to decide whether the action of the governor Mas proper or 
 not. (Mr. Dawes in debate expressed his individual opinion that it 
 was proper.) 
 
 On the face of the original returns contestee had a majority of 132 
 votes. Contestant charged that the judges in ll^jrecincts had made 
 false returns of the votes, and claimed to have sustained these charges 
 by a recount of the ballots. The recount was made by the magistrates 
 taking the testimony in the presence of both parties and there was no 
 question as to its correctness. But it was alleged that the ballot boxes 
 were not sufficiently identified and that there had been opportunity to 
 tamper with their contents. Nearly all the changes were found in 
 three of the boxes and the contention was chiefly in regard to them. 
 The boxes were all alike and there was considerable difficulty in identi- 
 fying them until they were opened, but after thej^ were opened the 
 committee held that there could be no doubt of their identity. Each 
 box containing ballots was accompanied by another box containing 
 election papers, which themselves contained the means of their own 
 identification. The ballots in the accompanying box must have be- 
 longed to the same precinct and their substantial correspondence with 
 the number of names on the poll lists completed the identification. 
 
 The boxes were produced by the oflicial custodians, sealed, and in the 
 same apparent condition as when deposited with them. Under these 
 circumstances the burden of proving that they had been tampered 
 
THIRTY-SEVENTH CONGKESS. 173 
 
 with was properly on the contestee, and this burden could not be sus- 
 tained merely bj' showing that they had been left in a situation where 
 it was possible, for some unauthorized person to have tampered with 
 them. There was no proof in this case to render \t probable. The con- 
 testee called the election officers to swear that their returns were cor- 
 rect, "but in the opinion of the committee this testimony neither 
 impairs the case of the contestant nor strengthens that of the respond- 
 ent. Officers who had declared upon their official oaths that the 
 returns made by them were true, would not be likely to come into 
 court afterwards and swear that they were false. " It was not neces- 
 sary to determine whether the incorrectness of the returns was due to 
 fraud or to mistake, but the committee were convinced that the 
 recounts represented the true state of the vote, and recommended the 
 seating of the contestant. 
 
 The minority found that neither the identit}' of the boxes nor the 
 integrity of their contents was satisfactorily' established. It is 
 always necessary for the party claiming under a recount to rebut a rea- 
 sonable presumption that the ballots have been tampered with. And in 
 this case, where a direct charge of crime was made against the election 
 officers, the truth of this charge was collaterally involved in the con- 
 tentions of contestant, and it was hence necessary for him to sustain 
 those contentions by the same degree of proof as would be required in 
 a criminal trial. But the minority held that it had not been sustained 
 even by a preponderance of the testimony. The boxes were kept by 
 the custodians, who were magistrates or aldermen, in their public 
 offices or private houses, where they could easily have been tampered 
 with by anyone. They were sealed mostly by having melted wax 
 poured on the knots of the tape, without any impression. Such a 
 seal might easily be imitated. It was very difficult to identify them 
 before they were opened, and after they were opened the fact that 
 the ballots in them corresponded somewhat nearly to the returns of 
 the precincts they were supposed to belong to did not show their iden- 
 tity, especially in the three cases where the variations were consid- 
 erable. In most of the district contestant ran behind his party, but 
 in these three precincts, even on the face of the returns, he was ahead 
 of his party, and the acceptance of the recount would make the dis- 
 parity still more striking. 
 
 Under the law of Pennsylvania the ballot boxes could only be 
 reopened upon- a sworn statement of what they were expected to show, 
 and before a "tribunal authorized to try the merits of the case." The 
 commissioners taking testimony were no such tri bunal. And the courts 
 of Pennsylvania were always very reluctant to authorize the opening 
 of the boxes. If the precedent was established that any defeated can- 
 didate could have a retrial of the election by a recount before the offi- 
 cers authorized to take testimon}' under the act of 1851 there would 
 be no end of contests, and no one would be safe in his seat. 
 
 The minority thought that the testimony of the election officers 
 could not be discredited merely by chargmg them with a crime. They 
 not only testified to the correctness of their returns, but to all the cir- 
 cumstances of the count, showing that there was little possibility of 
 mistake. 
 
 After considerable debate, the resolutions presented by the minority 
 were adopted by a vote of 77 to 67, and the sitting member retained 
 his seat. 
 
 [1 Bart., 353-366. J 
 
174 digest op ooktestbd election cases. 
 
 (3) Clements. 
 
 State im, rebellion. No certificate _from the governor or returns from 
 most of the sheriffs, htot vote otherwise proved. Report for claimant. 
 Claimant admitted. 
 
 Report by Mr. Dawes. 
 
 The State of Tennessee had passed an ordinance of secession, and an 
 election was held for members of the Confederate congress on the 
 day and in the manner provided by law for the election of Representa- 
 tives in Congress. The loyal voters in part of the State cast their 
 votes for Representatives in Congress, and claimant received all such 
 votes cast in his district. The governor refused to grant a certificate 
 of election, and the sheriffs of all the counties but one, being them- 
 selves rebels, refused to return the votes cast, but the claimant had 
 the certificate of the sheriff' of one county, and had shown by outside 
 proof that he had received votes, amounting in all to about 2,000, in 
 all the counties of the district .but one. On the day of the election 
 there was not yet such an armed force in possession of the district as 
 to prevent loyal voters from casting their votes. The committee rec- 
 ommended that the claimant be admitted, and the House agreed to the 
 resolution without debate or division. 
 
 [1 Bart., 367, 368.] 
 
 (4) Upton. 
 
 State in rebellion. Only 10 votes cast, and they not inform of law 
 Clavmant not admitted. 
 
 Report by Mr. Worcester. 
 
 The first question in this case was as to the eligibility of the claim- 
 ant. He had been for many years a resident of Fairfax County, Va. , 
 but a few years before the election had moved to Ohio, and voted 
 there on one or two occasions. But a few months before the date at 
 which he claimed to have been elected to Congress he had returned 
 with his family to his residence in Virginia and remained. The com- 
 mittee held him to be an inhabitant of Virginia, and eligible. 
 
 The convention of Virginia which passed the ordinance of secession 
 had passed an ordinance suspending and prohibiting the election for 
 Representatives in Congress, and the de facto governments. State and 
 local, and the vast majority of the people of this part of the State, so 
 far as appeared, acquiesced in the acts of this convention. Claimant 
 announced himself as a candidate for Congress, but could find no 
 newspaper in the district which ^vould print his announcement, and 
 was obliged to issue circulars. He claimed that 95 persons had voted 
 for him at "side polls," but 86 of these were shown merely by the 
 signatures of the voters to unauthenticated papers, and he did'not base 
 his claims on them. But the poll boolj of one precinct (the election 
 was viva voce) showed, of 51 votes cast, 10 which were cast for claim- 
 ant as Representative. But the election officers whose oaths were 
 appended to it were onlj"^ sworn to conduct the election for State offi- 
 cers. The testimony showed that the taking of the votes for Repre- 
 sentative in Congress was merely the individual act of some of the offi- 
 cers. There was some evidence tending to show that more votes were 
 cast for State officers than were shown on the copy of their poll book in 
 
THIRTY-SEVENTH 00WGBB8S. 175 
 
 evidence, indicating that the copy was incorrect or incomplete. The 
 poll book presented was not signed or certified by any of the officers 
 of election, and did not purport to come from any of the officers in 
 whose custody it should have been. The case was not analogous to 
 that of Clements, because in that case some 2,000 votes were legally 
 cast, and several hundred of them were legally returned and canvassed. 
 In this case there was no proof that these 10 votes had been legally 
 cast, and they were not returned or canvassed at all- 
 
 The committee expressed no opinion as to the general propriety of 
 allowing an election to stand on only 10 votes, and when most of the 
 voters of the district had no notice that an election would be held, and 
 believed that it could not be legally held. 
 
 The case was considerably debated in the House. An amendment 
 admitting claimant was rejected by a vote of 60 to 73. The resolu- 
 tion of the committee against his admission was then passed without 
 division. 
 
 [1 Bart., 368-380.] 
 
 (5) Kline vs. Vereee. 
 
 Recount of hallots. Report for contestee. Gontestee retained the seat. 
 
 Report by Mr. Dawes. 
 
 Contestant served a notice of contest containing 11 specifications, to 
 all of which contestee objected as vague and indefinite. When the 
 case came before the committee, contestee filed a motion to dismiss the 
 case. Contestant stated that he rested his case on the last clause of 
 the tenth specification. The specification was — 
 
 10. The examination of the tally papers relating to said Congressional election, and 
 deposited in the oflSce of the prothonotary of the court of common pleas, and depos- 
 ited in the several ballot boxes in said Congressional district, together ivith u. recount 
 of all the ballot boxes in said district, at said election v/ill show that you were not elected 
 and that Twos elected. 
 
 Waiving the question whether the clauses of this specification could 
 be separated, the committee held that the clause relied on amounted to 
 no more than an allegation that the contestant was elected and the con- 
 testee was not. The objection to the sufficiency of the notice had not 
 been waived, as in some previous cases, but had been made in time for 
 the notice to be amended, and was expressly insisted upon. 
 
 The question was thereupon presented to the. committee: Shall parties contesting 
 seats in the House of Representatives be held to conduct that contest according to 
 the requirements of the statutes of the United States, or be permitted, without expense, 
 to depart from and disregard the plainest provisipns of those statutes in this regard, 
 foundedintheplainestprinciplesof justiceandfairdealing? * * * Thecommittee, 
 after a careful consideration of this question, have come unanimously to the conclusion 
 that this notice is in no just sense a conformity with the requirements of the statute, 
 or the well-settled rules which should govern in all contests of this kind. The com- 
 mittee have not felt at liberty to pass over this entire disregard of well-settled rules 
 and statute enactments without notice, lest proceedings like these should grow into 
 precedents, and parties to contests should hereafter meet committees, not for the pur- 
 pose of trying prepared and defined issues, but for the purpose of making vague and 
 uncertain complaints and indulging in endless and unsatisfactory discussions. 
 
 The committee were, however, induced, from a desire that no injustice might by 
 any possibility be done the contestant, to permit him to orally "specify" and "par- 
 ticularize" the grounds upon which, under the last clause of the tenth specification, 
 this contest is based. 
 
 These grounds were allegations of mistakes made in the count of a 
 number of precincts. There were twelve of these precincts, and if the 
 
176 DIGEST OF CONTESTED ELECTION CASES. 
 
 results of the recounts of all twelve were accepted, contestant would be 
 elected by a majority of 8 votes. Nearly all the changes were in three 
 precincts, the changes in the three amounting to .54 votes, and the dis- 
 cussion was chiefly in regard to these three precincts. 
 
 The committee held that before the recounts could be considered 
 there were two questions to be answered: 
 
 Were the ballot boxes produced the ones actually used at these precincts at the 
 election contested? And did they contain, untouched, the ballots so cast? 
 
 On the question of identity there was no dispute, as the boxes were 
 properly labeled and identified by the custodians. But the integrity 
 of the ballots was not shown, and the contrary was indicated. The 
 boxes were left in exposed places in public offices. One of the boxes 
 was in charge of a man whose character was impeached. He testified 
 that it had been taken from the office by a stranger and kept for some 
 time. The other box had been left where it could have been tampered 
 with. One of the aldermen believed from its appearance that it had. 
 The conduct of another alderman was suspicious. Most of the bundles 
 of ten and of "scratched tickets" corresponded exactly to the tally 
 sheet, but there were certain bundles of ten which had been counted 
 as straight tickets, but which had "pasters" containing contestant's 
 name on some of them. It was alleged that the judges had overlooked 
 these pasters. But the pasters were of yellow paper, on white ballots, 
 and could not have been overlooked. Some of them were pasted across 
 folds in the ballots, without any corresponding folds in the paster. 
 The third box appeared on its face to have been tampered with. There 
 were loose ballots on top, and the box was not so sealed as to prevent 
 loose ballots from being abstracted and inserted. 
 
 The committee were unanimous in the conclusion that no confidence 
 could be placed in the recount of these three boxes, and recommended 
 resolutions declaring contestee elected. The resolutions were passed 
 by the House, after a short debate, by a vote of 105 to 13. 
 
 [1 Bart., 381-391.] 
 
 (6) Beach. 
 
 State in rebellion. Whole district, except one precinct, in armed occu- 
 pation of rebels, and election in that precinct not held im, pursuance of 
 any valid lau\ Claimant not admitted. 
 
 Report by Mr. Dawes. 
 
 A constitutional convention, composed of delegates from the western 
 portion of the State of Virginia, had assembled at Wheeling, and 
 organized a government for the entire State. State officers and a leg- 
 islature had been elected, and the legislature had met and passed laws 
 for the State. The constitutional convention, however, continued in 
 session, and also passed laws. Among these laws was a law fixing the 
 time for holding elections for Congress. The governor issued a proc- 
 lamation to the people, calling on them to vote on the day thus fixed. 
 On that day a poll was opened in the city of Alexandria, and claimant 
 received 138 votes. He contended that the fact that only a few votes were 
 cast — if they were legal votes and cast according to law — did not affect 
 the validity of the election. The committee applied this rule to the 
 election in question, and found that it would not stand the test. The 
 fixing of the time of the election was a legislative function, and could 
 not be exercised by the constitutional convention in the presence of 
 
THIRTY-SEVENTH CONGEESSi 177 
 
 the legislature. Further, the election was not held in conformity with 
 the code of Virginia. The code prescribed that special elections should 
 be called in pursuance to writs addressed to the sheriffs, who were to 
 make proclamation. In this case there were no writs and no proclama- 
 tions, and the votes were not canvassed according to law. The election 
 was hence not held in accordance with law. But the committee would 
 not have held it void on this account if the legal voters of the district, 
 as a whole, had had an opportunity to vote. But the whole district, 
 except the city of Alexandria, was in the armed occupation of the 
 rebels, and that city was occupied by the troops of the United States, 
 and was practically under martial law. No notice could lie given to the 
 people of the rest of the district, and they could not have held elec- 
 tions. They could not be held to have acquiesced in the result of the 
 election, for "acquiescence presumes liberty to protest. In this in- 
 stance that liberty did not exist." The committee recommended that 
 the claimant be not admitted, and the House agreed to the resolution 
 recommended, without debate or division. 
 [1 Bart., 391-395.] 
 
 (7) BriNGTON <w. Vandever. 
 
 Legal time of election. Vacation of seat hy acceptance of military 
 office. Oommittee reported seat vacant. House concurred. 
 
 Report by Mr. Dawes. 
 
 Mr. Vandever was elected on the day of the Presidential election 
 in 1860, and it was contended that this was not the proper day, but 
 the committee found that under the laws of Iowa Representatives in 
 Congress were to be elected at a "general election," and that in the 
 Presidential years the general election was required to be held on the 
 same day as the Presidential election. Mr. Vandever's election was 
 therefore legal. But he had since the election raised a regiment which 
 had been mustered into the volunteer service of the United States 
 and had been appointed colonel of that regiment. His commission 
 from the governor of Iowa read ' ' Colonel of the Ninth Regiment of 
 the Militia of Iowa," but the committee found that the regiment in 
 fact was the Ninth Regiment of Iowa Volunteer Infantry. Whether 
 the office was one in the Volunteer Army of the United States or in 
 the militia of Iowa made little difference, as in either case it was 
 incompatible. It was a physical impossibility to perform the duties 
 of the office and also those of Representative, and the conflict of 
 authority involved in the two oifices was irreconcilable. And the 
 committee were of the opinion that in spite of the words of his com- 
 mission Colonel Vandever was really an officer in the Army of the 
 United States. The acceptance of an incompatible office, in law, 
 vacated the first office, and the committee therefore reported that the 
 seat had been vacated. After a short debate the resolution was 
 adopted without division. Some time later the contestant was heard 
 upon the question of his own right to the seat (this question was not 
 included in the committee report, though it had been decided in the 
 committee against contestant), and a resolution to admit him to the 
 seat was defeated by a vote of iiS to 84. 
 
 [1 Bart.. 395-40y'. I 
 
 H. Doc. 51U 12 
 
178 DIGEST OF CONTESTED ELECTION CASES. 
 
 («) Morton' ■/«. Daii.v. 
 
 Fvdud;^ illegal votes; rm(/iilarU!.ej<. Majoritij report frjr contestee; 
 'minority rcj HI li for cantestant., Contextci' retained tlie neat. 
 
 Majority report by Mr. Dawes; minority report by Mr. Voorhces. 
 
 On tiie face of the returns contestant was elected, and the certificate 
 of election was given him by the governor. Subsequently the gov- 
 ernor gave another certificate to contestee, and at the beginning of 
 the session the House, after some deljate, admitted the contestee to the 
 seat. The testimony haA^ng been taken by the contestee as contestant 
 and the contestant as contestee, the House passed a resolution refer- 
 ring the papers to the committee without regard to this irregularity. 
 
 The contestee asked that votes from four counties or parts of coun- 
 ties be rejected, and the committee held that they should be rejected. 
 One of these was the northern precinct of L'eau qui Court County. 
 The evidence showed that the election was held at a house 90 miles 
 from the county seat and close to the Dakota border. There were 
 only 5 residents at or near the place of election, and nearly all the 
 votes cast were by nonresidents. Most of them came from Dakota; 
 some were Indians, and some of the voters voted se^'eral times. The 
 United States census was completed only a few days after this 
 election. Counting the votes returned from the other precincts in 
 this county, there would be a fair proportion of votes to population, 
 considering that it was a frontier country, but if the \otes of this 
 precinct were counted there would be more voters than the census 
 showed the entire population of the county to be. 
 
 The contestant attempted to overthrow this testimony by impeach- 
 ing the witnesses, but the committee held that he had not been success- 
 ful, and rejected all the votes returned from this precinct. 
 
 The committee also rejected 81 votes cast by residents on the PaA\nee 
 Indian Reservation. This reservation was not a part of the Territory 
 of Nebraska nor under its jurisdiction. 
 
 The committee also rejected the votes of Buffalo County on the ground 
 that it was not legally organized. The organization of this county 
 had been declared to be illegal by the House in the former case of 
 Daily v. Estabrook, and the committee quoted from the report in that 
 case. 
 
 The committee also rejected the votes of nonresidents cast at some 
 other precincts, but refused to reject "\-otes cast on the '"half-breed 
 land," which was not exactly an Indian resei'vation, and the votes of 
 two counties in regard to which there was inconclusiA'e evidence of 
 lack of legal notice. 
 
 The contestant asked to have the vote of the Falls City precinct 
 rejected on account of fraud, but the only \vitness testifying to the 
 fraud was impeached. He asked to ha\e the vote of Pawnee County 
 rejected as unorganized, but the committee found that he had not pre- 
 sented proper evidence of the insuflicienc}' of the original organization, 
 and that it appeared on the other hand that the county had been recog- 
 nized by the legislature as organized and created into a legislative 
 district. 
 
 The main contention of contestant ^\■as that the votes of nine counties 
 should be rejected because an ' ' abstract" of the ^'otes was not returned 
 to the Territorial canvassers, but onl\' a statement of the aggregate 
 
THIBTY-SEVENTH CONGRESS. 179 
 
 votes. Assuming- that this statement of aggregates was not the abstract 
 required by law, the committeedid not think that this irregularity would 
 justify the rejection of the votes of the counties, especially as it was 
 not denied that these aggi-egate returns stated the actual aggregate of 
 the votes cast. 
 
 Under the rulings of the committee, oontestee had a majority of 150 
 votes, and the committee recommended that he retain the seat. 
 
 The minority presented a long report (not given in 1 Bartlett), dif- 
 fering from the committee on most points. They held that there was 
 as good ground for rejecting the \'ote of the Falls City precinct as 
 L'eau qui Court precinct, and they would al)out balance each other. 
 However irregular the original organization of Buffalo County may 
 have been, the present officers were certainly elected legalh', and the 
 original irregularity could not forever prevent the county from being 
 organized. The return of the aggregate votes, instead of the abstract 
 required by law, had the effect of rendering the detection of fraud 
 difficult or impossible, and should not be permitted. Contestant had 
 been refused permission to take certain additional testimony desired, 
 but the minority printed an ex parte affidavit tending to show that the 
 certificate of election by which contestee held the seat was a forgery. 
 
 After some debate, the House laid the whole subject on the table, by 
 a vote of 69 to 48, thus leaving the sitting member in his seat. 
 
 [1 Bart., 402—1:1*1, and Report No. 69, second session Thirty -seventh 
 Congress, part 3, and on preliminary question Report No. 4, first 
 session Thirty-seventh Congress.] 
 
 (9) Segar. 
 
 State i/n rebellion. Whole district except one precinct in armed occu- 
 pation of rebels., and election in that precinct not held in jntrsaance of 
 any valid law. Claimant not admitted. 
 
 Report by Mr. Dawes. 
 
 The facts in this case are the same as those in the case of Beach, 
 already outlined (page 176), and the report is in nearly the same 
 words. The election was held in only one precinct, and only 25 votes 
 were cast. The committee reported against the claimant, and after a 
 long debate the House adopted the resolutions recommended without 
 division. This case is earlier than the one of Beach, and the decision 
 of that case was based on the decision of this, but they ha\'e been given 
 here in the order of 1 Bartlett in order to avoid confusion.^ 
 
 [IBart., 426-437.] 
 
 (10) Lowe. 
 
 Claim (f additwnal rejM'enentatine under iiem apportloniiioit. 
 Claimant not admitted. 
 
 Report by Mr. Dawes. 
 
 The seventh census, in 1850, was taken under a law which provided 
 a method by which, unless a subsequent law should be passed, the 
 eighth and' all subsequent censuses should be taken. The law also 
 provided for a method of apportionment by the Secretary of the 
 Interior, on the basis of 233 representatives, to take efl'cct on March 
 
 1 Except that in ] Bartlett the two cases of Segar are accidentally transposed. This 
 is the first case. 
 
180 DICtKST OB' CONTESTED ELECTION CASES. 
 
 3, iS53. Under this act California was entitled to but one representa- 
 tive, but in con.sideration of the ineomplctcness of the census of that 
 State, Congress passed a special act giving her two representatives. 
 Under the eighth census California would, under the apportionment 
 law, be entitled to three representatives, and believing that the new 
 apportionment went into effect immediately, the authorities of Cali- 
 fornia issued proclamations for the election of three members from 
 the State at large, and three members were so elected, claimant being 
 the third. 
 
 The claimant contended that as there was no express provision that 
 the new apportionment should go into effect on March 3, 1863, and 
 as all the preparatory proceedings were required to be finished "as 
 soon as practicable," and the census was required to be completed by 
 the 1st of November, that the apportionment must go into effect by 
 March 3, 1861. But the committee held that the whole pui-pose of 
 the law was to have the Eighth Census and apportionment proceed, 
 mutatis mutandis, precisely as the Seventh had done. There was no 
 express provision that the Eighth Census should be completed by 
 November 1, 1861, except the provision that the Seventh should be 
 completed by November 1, 1851, and the same mode of construction 
 would require that the provision that the apportionment under the 
 Seventh Census should go into effect on March 3, 1853, should be held 
 to require that the apportionment under the Eighth Census should go 
 into effect on March 3, 1863. Such was the plain intent of the law, 
 and such had been the construction put upon it by Congress in the 
 special act providing for additional representation under the eighth 
 apportionment. The construction contended for would substantially 
 require a dissolution and reorganization of the House, as in the case 
 of States whose representation would be reduced under the new appor- 
 tionment there would be no way of determining which members should 
 retire, and all the seats would have to be vacated and a new election 
 had. The committee reported a resolution declaring the claimant not 
 elected, and the House agreed to the resolution, after a short debate, and 
 without division. An amendment admitting claimant was rejected by 
 a vote of 49 to 69. 
 
 [1 Bart., 418-424.1 
 
 (11) Foster. 
 
 State in rebellion. Election not in co)ifi)riiilty to hue, ((ml few mtes 
 cast. Claimant not achnitted. 
 
 Report by Mr. Dawes : 
 
 The State of South Carolina was almost entirely occupied by rebel 
 troops, and there was no government of any sort except tbe rebel gov- 
 ernment. There was no regular election held anywhere, but claimant 
 asked to be seated on certain papers purporting to be signed by a few 
 citizens expressing their choice of him for Congress. The committee 
 could see nothing on which the right of the claimant could be properly 
 based, and reported a resolution declaring him not entitled to the seat. 
 The House adopted the resolution without debate or division. 
 
 [1 Bart., 424-426.] 
 
THIRTY-SEVENTH CONGRESS. 181 
 
 (12) Skc.ar (second ciiso). 
 
 Kli'Gtioii held in mdy jpart of tJic iliKtrict, hiut under tin' foniiK of 
 1(1 ii\ ( 'onim,ittei' nnid('no reannnwnddfioti. TLniKi' udin'dtrd chiinuint. 
 
 Report bj' Mr. Dawes: 
 
 After the report of the committee and action of the House on the 
 prior case of Segar, another election was held, in which the objections 
 stated in the committee report were sought to be avoided. Writs of 
 election were issued by the governor and carried to the sheriffs of 
 three counties, and elections were held in form of law in two of these 
 counties, and one precinct of the third. About 1,000 ^'otes were cast, 
 and these were returned and canvassed in form of law. The governor 
 issued a certificate of election, but this was not until after the case 
 had been referred to the committee. There were 17 counties in the 
 district, and the usual vote was about 8,000. The three counties where 
 the elections were held contained a little over one-fourth the popula- 
 tion of the district. 
 
 The committee reported the facts, but could agree on no conclusion. 
 The House, after some debate, by a vote of 71 to 47, admitted the 
 claimant. 
 
 [1 Bart., 414-118.] 
 
 (13) Flanders and Hahn. 
 
 Time (}f idediini fixed by military governor. Registration lavj parthj 
 dixregnrded. C'onnnittee report for dainiiinfM. Vlaimants admitted. 
 
 Reported by Mr. Dawes. 
 
 The First and Second districts of Louisiana, from which these claim- 
 ants claimed to have been elected, were each composed of portions 
 of the citj' of New Orleans and some country' parisfhes. The city of 
 New Orleans and most of the country included in these districts were 
 in the complete control of the United States army, under General 
 Butler, and the conditions were such that elections could be held in 
 nearly all the district without fear of rebel interference. General 
 Shepley had been appointed militar}^ governor of Louisiana, and a 
 very large portion of the population in the reclaimed territory had 
 taken the oath of allegiance and acquiesced in the authority of General 
 Shepley. 
 
 No Congi'essional election had been held in the State in 1861, and 
 there were, consequently, vacancies in the representations of all the 
 districts. Under the constitution of the State the governor had 
 authority to fix the time of elections to fill vacancies, and the military 
 governor, in the exercise of his civil powers, fixed the time for this 
 election and issued writs. The election was held under all the forms 
 of law, except in respect to the registration of Orleans Parish. No 
 registration was required by the laws of the State except in this parish, 
 and here the registration was a permanent one. The seceding legisla- 
 ture had abolished and destroyed the former registration, and required 
 a new registration conditioned on the taking of the oath of allegiance 
 to the Confederacy. This enactment was, of course, void, but the 
 destruction of the former and still valid registration rendered it impos- 
 sible to proceed under that. A new registration was ordered and 
 
182 DIGEST OF CONTESTED ELECTION CASES. 
 
 piirtl y completed, but it was ordered that all persons who failed to be 
 registered might Ijc permitted to vote on satisfying the judges of their 
 qualilication. This was generally done by proof of former registra- 
 tion. The committee held that the registration law was diicetory, and 
 that its partial disregard did not vitiate the election, but if it were 
 held otherwise the election could still stand on the result outside of 
 Orleans Parish, where no registration was required. The election was 
 participated in l)y a very lar^e majority of the legai voters present in 
 the parishes, and appeared to have been a very free and poacf^ablo 
 election. The only possible objection to the validity of the election 
 was a possible objection to the authority of the military governor to 
 order the election. 
 
 The exact powers of a military governor can not be easily defined. They have 
 their origin in, and are probably limited by, necessity. They are to some extent civil 
 aiJ well as military, and the authority for his civil functions is no less clear than for his 
 military. 
 
 Both had been recognized by the Supreme Court, and also by Con- 
 gress, on former occasions, as in the admission of California. The 
 Constitution required the United States to guarantee to each State a 
 republican form of government. Representation was one of the essen- 
 tials of such a government, and the right of the people to representa- 
 tion ought not to be dependent on the willingness of the rebel gov- 
 ernor of Louisiana to order an election. Some one must assume the 
 power to order the election. General Shepley assumed to act as gov- 
 ernor of Louisiana, and his actions were acquiesced in by the people. 
 The House ought at least to recognize him as de facta governor until 
 his authority was contested by some one. 
 
 The committee recommended resolutions admitting claimants. There 
 was no minority report, but in the extended debate in the House strong 
 objections were raised to their admission, based on the fact that the 
 military governor was not elected by the people, but appointed by the 
 President. The claimants came not so much as the representatives of 
 the people as the creatures of Executive power, and to admit them 
 would be to augment the already dangerous increase in that powei-. 
 
 After an extended debate, the House adopted the resolution admit- 
 ting the claimants by a vote of 92 to l-i. 
 
 [1 Bart.. 438-465.] 
 
 (14) MoCloud and Wing. 
 
 State in rehellion. Election not in f(n'ni of hiu\ and hrlJ in onh/ 
 small part of thecliKtrict. Report againat claimants, (^'lainiantu not 
 admitted. 
 
 Report by Mr. Dawes.. 
 
 At the election under which these claimants applied for seats, Mr. 
 McCloud received a majority of the votes, but if a precinct where the 
 election was by ballot, the law of Virginia requiring it to be vira voce. 
 Were thrown out Mr. Wing would have a majority. The committee 
 did not decide between the claimants, as in their opinion the whole 
 election was illegal. 
 
 The election was called by a proclamation of Major-General Dix 
 commanding the Department of Virginia, who issued a proclamation 
 fixing the time of the election and the qualifications of voters, and 
 requiring all qualified voters to vote, under pain of being considered 
 disloyal. The election officers were appointed by General Viele 
 
THIRTY-SEVENTH CONGRESS. 183 
 
 "military governor of Norfolk," and returns were made to him. Gov- 
 ernor Pierpoint issued writs of election to the sheriffs of the four 
 counties where the election could be held, but the date mentioned in 
 these writs was afterwards changed by some one, so that the election 
 was held the day after the reception of the writs, though the law 
 required ten days' notice. 
 
 The committee found that the election was entirely in disregard of 
 law. General Dix was not in any sense a military governor, and pre- 
 tended to no civil functions. The jurisdiction of the "military gov- 
 ernor of Norfolk" was uncertain, but it did not seem to cover the 
 whole district in which the election was held. The election officers 
 were under the law required to be elected b}' the people, and not to 
 be appointed by any officer. The requisite notice of the election was 
 not given, and the returns were not made to the proper officers. The 
 qualifications of voters as fixed in the proclamation of General Dix 
 were not those prescribed by the constitution . and laws of Virginia. 
 Writs of election were issued to only four of the eleven counties of 
 the district. This was, in this case, the result of necessity, as the 
 remaining counties were in the possession of the rebels, but it would 
 be dangerous to recognize any such power of selecting certain coun- 
 ties in a district under any circumstances. 
 
 The election could not be considered as a fair expression of the 
 choice of the people, as it was only held in four of the eleven counties 
 of the district and but a small fraction of the total vote was cast. The 
 rest of the district was in the armed occupation of rebels, and no elec- 
 tion could have been held in it. The committee therefore recom- 
 mended resolutions against the admission of claimants, and the House 
 passed the resolutions without debate or division. 
 
 [1 Bart., 455-459. J 
 
 (15) McKenzie. 
 
 State in rebellion. Meet ion iwt inform of law., and held in only 
 small part of the diftrhi. Report against claim,a/nt. Claimant not 
 admitted. 
 
 Report by Mr. Dawes. 
 
 The facts in this case were much the same as in the other Virginia 
 cases. Onlj' two of the nine counties in the district had been 
 reclaimed so that elections could be held in them. Governor Pierpoint 
 issued writs of election, but authorized the persons to whom they were 
 addressed to change the date of the election if necessary, and the date 
 was changed from December 31 to January 15. The committee were 
 of the opinion that this power to fix the dates of the election could not 
 be delegated. 
 
 The legislature ot Virginia had subsequently passed an act which, it 
 was contended, legalized this election, but the committee found that 
 the act was only intended to permit the making of returns within less 
 that the formerly legal time. If the act had had the intention claimed, 
 it would have been beyond the power of the legislature to legalize an 
 election not legal at the time it was held. 
 
 Only two of the nine counties were able to participate in the elec- 
 tion, and the committee, on the principles heretofore followed, rec- 
 ommended that the claimants be not admitted. The House passed the 
 resolutions without debate or division. 
 
 [1 Bart., 460-462.] 
 
184 DIGEST (1B^ CONTKSTKD ELECTION CASES. 
 
 (16) lloi«iKRS. 
 
 Hitate ft'dhtrictijil by neoadiiu/ li'.(/!.xlnti(r<\ ('laimaiit rwt iidrnifted. 
 
 Report by Mr. Dawes. 
 
 The State of Tennessee had been redistricted by the rebel legislature 
 for the Confederate congress. On the day of the election for members 
 of the Confederate congress claimant claimed to have been elected to 
 the House of Representatives from a district composed of parts of two 
 districts already represented by two members of the House. The com- 
 mittee recommended that he be not admitted, and the House concurred 
 without debate or division. 
 
 [1 Bart., 462, 463.] 
 
 (17) PiGOTT. 
 
 State in reljell/oii. Mectioii hdd in onhj stwall part of dii^tricf. 
 Claimant not an inhal)itant. Xot aiJniiftrd. 
 
 Report by Mr. Dawes. 
 
 The election was held in only three of the eleven counties of the dis- 
 trict, and only in portions of them. Under the principles heretofore 
 followed, the committee held that this was not an election. 
 
 Claimant had formerly lived in North Carolina, but had been a resi- 
 dent of Washington for years. He had gone to North Carolina a tew 
 months before. the election as private secretary to the military governor. 
 The committee held that this did not constitute him an inhabitant. 
 
 The House passed the resolution refusing to admit the claimant 
 without debate or division. 
 
 [1 Bart., 463, 464.] 
 
 % (18) Geafflin. 
 
 State in rchellion. Election owt in farm oflaiL\ and h<>ld in only a 
 small part of the district. Claimant not admitted. 
 
 Report by Mr. Dawes. 
 
 The facts in the case were the same as those in the case of McKen- 
 zie, and the committee came to the same conclusions. The governor 
 had delegated the power of fixing the time of the election to the person 
 who carried the writs, which the committee held he had no power to do. 
 The election was held in only a small part of the district, and could not 
 express the choice of the voters. The House agreed to the resolution 
 refusing admission to claimant without debate or division. 
 
 [1 Bart., 464, 465.] 
 
 (19) Hawkins. 
 
 State in rehellion, mid most <f tlw dififrict in armed occupation. 
 Claimant not admitted. 
 
 Report by Mr. Dawes. 
 
 A convention of the people of the district had l)een held, and a date 
 fixed for an election, unless some other date should be fixed bv the 
 governor. The district was then free from troops. Just l>efore the 
 day fixed, writs from the military governor arrivi'd fixing a later day. 
 
THIRTY-SEVENTH CONGRESS. 185 
 
 The rebels heard of those writs, and made an incursion into the district. 
 Battles wore fought, and by the day of election the whole district was 
 occupied by the contending armies. The general in command of the 
 Federal troops issued orders postponing the election; but in a few 
 places, where the orders did not reach, polls were opeiK>d. Perhaps 
 1,900 votes were cast, but the only proof of the votes possible was 
 unsworn letters and statements from private citizens. The committee 
 thought it would be a dangerous precedent to accept these as proof. 
 The House refused to admit claimant, without debate or division. 
 [1 Bart., 466^68.] 
 
186 DIGEST OF CONTESTED ELECTION OASES. 
 
 THIRTY-EIGHTH CONGRESS, 1863-1865. 
 
 Coirwnittee on Kli'iiin'ii^. 
 
 Mr. Dawes, Massachusetts, Mr. Scofield, Ponnsylvania. 
 
 VooKHEES, Indiana, Smithers, Delawai'c. 
 
 Baxter, Vermont, Upson, Michigan, 
 
 Smith, Kentucky, Brown, Wisconsin, 
 
 Mr. Ganson, New Yoi-k. 
 
 (7ffiS6S. 
 
 1) Lewis McKenzie vh. B. M. Kitchen, Virginnt. 
 
 2) John S. Sleeper vx. Alexander H. Rico, MafimcliKjieiix. 
 
 3) Jose M. Gallegos v.y. Francisco Perea, Nev Mexico. 
 
 4) John P. Bruce vx. Benjamin F. Loan, Missouri. _ 
 6) Birch rx. King and Price vs. McClurg, 3Bssouri. 
 
 6) Lucius H. Chandler, Yirginia. 
 
 7) Samuel Knox vs. Francis P. Blair, Missouri. 
 
 8) Robert C. Schenck and Francis P. Blair. 
 
 9) John H. McHenry, jr., vs. George H. Yeaman, Kenturh/. 
 
 10) J. B. S. Todd vs. William Jayne, Balvta Territory. 
 
 11) James Lindsay vs. John G. Scott, Mhsmiri.^ 
 
 12) John Kline vs. Leonard Myers, Pennsylvania. 
 
 13) Charles W. Carrigan vs. M. Russell Thayer, Pcnn-mlvania. 
 
 14) Joseph Segar, Virginia. 
 
 15) A. P. Field, Louisiana. 
 
 16) M. F. Bonanzo, A. P. Field, and W. D. Mann, Louisiamt. 
 (17) T. M. Jacks and J. M. Johnson, Arkansas. 
 
 (1) McKenzie vs. Kitchen. 
 
 Election held in less than half the district. Claim tlint om- county 
 vx(s apart of West Virginia. Majority remrrt against hoth claimantx; 
 minority report foi- contestee. Neither' claimant admitted. 
 
 Majority report bj;- Mr. Dawes; minorit}' report by ]Mr. Smith. 
 
 Of the votes cast at this election contestee received a niajdrity, but 
 if the vote of Berkeley County were excluded contestant would have 
 a majoritj'. He claimed that Berkeley County was a part of West 
 Virginia, and had no right to vote for a Representative from Virginia. 
 But the committee found that Berkeley County was not to be admitted 
 to West Virginia until the voters of the county and the legislature of 
 West Virginia had both given their assent. The assent of the voters 
 was given on the same day that votes were cast for Representative in 
 Congress, and that of the legislature was not given until some time 
 afterwards. Berkeley County was not mentioned in the act of Con- 
 gress admitting West Virginia, and hence the assent of Congress had 
 not yet been given, and the county was still a part of Virginia. 
 
 This disposed of the claim of contestant. The case of contestee was 
 more difficult. The part of the district still under the control of the 
 rebels contained a very little more than half the territory and popula- 
 
THIRTY-EIGHTH CONGRESS. 187 
 
 tion of the district. The counties in which elections were held con- 
 tained nearly half the population, but elections were not held in the 
 whole of all the counties, and parts of the counties were still disputed 
 territory and only partly under the control and protection of the 
 United States Arm}-. All the district was under the control of martial 
 law and military discipline, "certainly, at best, poor instrumentalities 
 for ascertaining the choice of freemen." The committee came to the 
 I'onclusion that this case was within the application of the precedents 
 already established, and recommended that the claimant be not 
 admitted. 
 
 Mr. Smith favored seating the contestee on the ground that sub- 
 stantially' half the district participated in the election (this report is 
 not given in 1 Bartlett), but the House, after a short debate, adopted 
 the resolutions presented by the committee without division. 
 
 [1 Bart., 468^72, and Report No. 14, first session Thirty-eighth 
 Congress, pp. 10, 11.] 
 
 (2) Sleeper ?'.s\ Rice. 
 
 Mlstalv in -first co-unt. Recount and arncndi'd ir'turii. Report for 
 contestee. Contestee retained the seat. 
 
 Report by Mr. Dawes. 
 
 According to the precinct returns as first made contestant had a 
 majority of 32 votes, but seven days after the election an amended 
 return was made from Ward 12, Boston, which was counted bj' the 
 board of aldermen and included in the total return. Counting this 
 amended return, contestee had a majority of 2s votes. Contestant 
 claimed that this amended return was without authority in law and 
 untrue in fact. But the committee found that under the statutes the 
 . ward officers had authority to make amended returns, within nine days 
 after the election, to correspond with the truth, and that these returns 
 were to be counted by the board of aldermen whether made in obe- 
 dience to a notice from said board or not. As all returns were to be 
 counted, regardless of informalities, the reason for amended returns 
 contemplated must have been that the first returns were not true. As 
 no specific method of ascertaining whether they were true or not was 
 provided, no method could be held to be prohibited which attained 
 that object. The amended return, based on a recount of votes by the 
 election officers, was hence legal. 
 
 An examination of all the circumstances convinced the committee 
 that it also represented the truth. The votes were counted in packages 
 from time to time during the day, a tally sheet kept of this count, and 
 the result announced on a blackboard. The ballots were divided into 
 packages, and the official returns were based on a count of these pack- 
 ages, made in the evening. According to the first, or "rough count," 
 there were 60 votes less cast for Representati\'e in Congress than for 
 other offices. An examination of the original tally sheet showed that 
 a mistake of 60 had been made by reading the figures 578 as 518. 
 There was also a deficiency of about 30 in the votes for Representa- 
 tive in Congress, according to the first official count. If this should 
 be corrected by adding the 60 votes found by correcting the first 
 "rough count," there would be an excess of about 30 votes. The num- 
 ber of votes shown by the "rough count," as corrected, corresponded 
 substantially to the number cast for other offices. 
 
188 DIC4EST OP CONTESTED ELECTION OASES. 
 
 The ballots hud been kept in a trunk in the attic of the house of the 
 ch'rk of the ward. li('lie\ iug that a mistake had V)ec'ii made, he pri- 
 vately recounted them, from the appearance of the bundles, without 
 untying the package. He then called a meeting of the ward officers, 
 who carefuUj' recounted all the ballots, comparing the account with 
 the tally sheet of the original count. It was found that one pack- 
 age of 28 votes had been overlooked in the original count. Counting 
 this package, the result corresponded substantially to that shown by 
 the corrected "rough count," and the number of votes cast for Con- 
 gress was substantially the same as for other offices. 
 
 The clerk swore that the ballots had not been tampered with, and 
 the committee found that the remarkable coincidences shown, and the 
 probability of the result of the recount and the improbability of the 
 original count, and the full explanation of how the mistake must have 
 occurred, left no room for doubt that the ballots were not tampered 
 with. 
 
 The resolutions sustaining the right of contestee to his seat were 
 adopted without debate or division. 
 
 [1 Bart., 472-481.] 
 
 (3) Gallegos rs. Pekea. 
 
 Applicat'xin for furtlier time to take testimony refused. 
 
 Report by Mr. Smithers. 
 
 iNotice of contest and answer were duh' served. Contestee took 
 some testimony. Contestant served notice to take testimony' either 
 before the chief justice of the Territor}- or a probate judge. He took 
 no testimony, but applied to the House for further time, alleging that 
 there were but two judges of the district court in New Mexico; that 
 one of them resided in an inaccessible part of the Territory and the 
 other was a violent political opponent. No reason was given for not 
 taking testimony before the probate judge named in the notice. The 
 committee recommended that the extension be not granted, and the 
 House agreed without debate or division. 
 
 [1 Bart., 481, 482.] 
 
 (4) Brttce vs. Loan. 
 
 Violence and intimidation; military )nterfere7\ce. Majority report 
 to declare seat vctcant; minority report for vontestre. Contrstn' retained 
 the seat. 
 
 Majority report by Mr. Ganson; minority report by Air. Upson. 
 _ Contestant asked that the election be declared void on account of 
 violence and intimidation and illegal interference by the armed militia 
 of the State. There were fifteen counties in the district, and the con- 
 testant charged that the election was interfered with in seven of them, 
 but he took testimony in only five, alleging that it would ha^•e been 
 dangerous to attempt it in the other two. It was conceded that the 
 election in eight counties was fair. 
 
 The convention of the State had passed a law requiring all persons 
 to take a prescribed oath of loygjty in order to qualify them to vote. 
 All the loyal citizens of the State had been organized into militia. 
 Shortly before the election, orders had been issued to the militia cau- 
 tioning them against interfering with the freedom of anyone to vote 
 
THIETY-EIGHTH CONGRESS. 189 
 
 at the election. The couiuiittee found, however, that these orders had 
 been disregaa-ded in the live counties named. Testimony was cjuoted 
 in all of them to show that there were scenes of violence at the polls, 
 and that persons were prevented from voting for contestant. Con- 
 testee had been a brigadier-general of the militia, and many of the 
 candidates on the same ticket with him were ofEcers in the militia. 
 None of the candidates on the ticket with contestant belonged to the 
 militia. 
 
 After quoting and commenting on the testimony in regard to the 
 various polls, the committee called attention to the condition of Mis- 
 souri, and the fact that it had been entii-ely reclaimed from the rebels, 
 and that there was no occasion for military interference at the polls, 
 nor any reason why a free and quiet election could not have been held. 
 If the militia had obeyed the orders given them, this would have been 
 the case. 
 
 But the evidence discloses ample proof that a portion of the militia in certain 
 localities disregarded entirely the injunctions given them in the orders before men- 
 tioned, and in many instances, in violation of their duty as good citizens, and of the 
 commands promulgated prior to the election by those orders to them aa soldiers, 
 assumed to determine who should and who should not vote, and for whom votes 
 should be cast, and by threats, violence, and by various modes of intimidation so 
 far interfered with the election as, in the opinion of the committee, to render the 
 election a nullity. 
 
 The minds of the people of Missouri had not yet become quiet, and 
 threats and instances of violence were likely to spread a condition of 
 alarm, and have more effect than they would have in a community 
 accustomed to the conditions of peace. Considering the evidence in 
 the light of these considerations, the committee concluded that the 
 election was void, and recommended resolutions vacating the seat. 
 
 The minority held that no such condition of affairs existed as to invali- 
 date the election. There were 15 counties in the district, and evidence 
 was brought against only 5 of them, and against only 8 precincts in 
 these 6 counties. There were proljably 150 precincts in the district, 
 and the election was not attacked in 14:2 of them. A detailed examina- 
 tion of the testimony in regard to these 8 precincts showed that a 
 large part of it was hearsay, or consisted of vague and general state- 
 ments or rumors, not confirmed by the specific facts shown. There 
 was excitement and some violence, but this was to be expected under 
 the circumstances, and it did not appear that it interfered with a fair 
 election. The fact that fewer votes were cast at this election than at 
 former elections, taken by the majority as indicating the result of 
 intimidation, could be better accounted for in other ways. If all the 
 votes claimed to have been intimidated at the only poll where there 
 was serious violence were deducted, and all the votes at the other polls 
 that could be claimed upon any reasonable estimate, contestee would 
 still have a majority. The minority therefore recommended resolu- 
 tions declaring contestee elected. 
 
 After a long debate the House passed the resolutions presented by 
 the minority^ by a vote of 71 to 59, and contestee retained his seat. 
 
 [1 Bart., 482-620.] 
 
 (5) BiKOH vs. King and Price w. McClukg. 
 
 These cases were similar to the case of Bruce v.s-. Loan. After 
 the House had refused to agree to the report of the committee in that 
 
190 DIGEST OF CONTESTED ELECTION CASES. 
 
 case, the papers in the above-named cases were reported back to the 
 House and laid upon the table. There were no written reports, nor 
 was there a contest in the House. 
 [1 Bart., 620.] 
 
 (6) Chaxdlek. 
 
 State in ? ehellion; election in only small part of district. Claim ant 
 not admitted. 
 
 Report by Mr. Dawes. 
 
 This was a case like a number of others in Virginia. Only a small 
 part of the district had been reclaimed, and no election could be held 
 in most of the district. The committee reported against the claimant, 
 referring to the reports in similar cases for the principles and reason- 
 ing involved in the decision. 
 
 [1 Bart., 520, 521.] 
 
 (7) Knox vs. Blair. 
 
 Fraud; illegal votvng; irregularities. Majority report for contest- 
 ant; minority report fo-r contestee. Contestant seated. 
 
 Majority report by Mr. Dawes; minority report by Mr. Ganson. 
 
 This district consisted of a portion of the city of St. Louis and three 
 outside townships. The returned majority of the sitting member was 
 153 votes. A lai-ge number of charges were made by both sides, but 
 the ones relied on by the contestant were those against the Abbey 
 precinct, and charges of illegal votes cast by members of various mil- 
 itary companies. The contestee relied on charges of illegal votes cast 
 by members of the various companies of "Osterhaus's brigade'" and 
 on the illegal rejection of various returns for informality. The com- 
 mittee called attention to the fact that the pleadings on both sides were 
 very vague and indefinite. 
 
 For vagueness, uncertainty, and generality they are, in the opinion of the com- 
 mittee, without example, and seem to have been drawn in studious disregard both 
 of the act of Congress and of all precedent. But as neither contestant nor sitting 
 member was in a situation to take exception to the substance or mode of the other's 
 pleading, the committee were not called upon for a decision upon this point, but 
 present the case as they find it upon the record. They do not feel at liberty, how- 
 ever, to permit these pleadings to pass into a precedent without recording the opinion 
 that many of the allegations on both sides are bad both in substance and form. 
 
 In the Abbey precinct, where 424 votes were cast, nearly all for con- 
 testee, contestant charged 400 illegal votes, giving the names of the 
 voters. The committee found that the whole election was so tainted 
 with fraud as to require the rejection of the entire return. The law 
 permitted residents of the district to vote in any precinct in the disti-ict 
 on taking an oath that they had not and would not vote in any other 
 precinct. The evidence showed that the judges in this precinct had 
 permitted 88 illegal voters to vote in a body, and there was no evidence 
 that they had administered the required oath to any of them. One of 
 the judges exchanged places with a violent partisan of the sitting mem- 
 ber during part of the day while he himself electioneered for contestee. 
 The polling place was under the practical control of another violent 
 partisan of the sitting member. Tnere were large numbers of paroled 
 prisoners in the barracks near the polling place under the charge of an 
 officer who was an active supporter of the sitting member. Many of 
 
THIRTY-EIOHTH CONGRESS. 191 
 
 these soldiers were seen in wagons going toward the city and shouting 
 for Blair. At this precinct four times as many votes were cast as had 
 ever been cast in it before or since, and mostly by persons who were 
 entire strangers to old residents of the district. 
 
 Indeed, it is difficult to see in the manner in which this election was conducted any 
 limit, beyond an exhaustion of the supply of men, to the number of votes returned 
 from this precinct: 
 
 When the result in any precinct has been shown to be "so tainted with fraud that 
 the result can not be deducible therefrom," then it should never be permitted to 
 form a part of the canvass. The precedents, as well as the evident requirements of 
 truth, not only sanction but call for the rejection of the entire poll when stamped 
 with the characteristics here shown. 
 
 The evidence in regard to illegal voting by members of military com- 
 panies con.sisted largely of sworn copies of muster rolls. Contestee 
 claimed that these were not admissible for any purpose, but asked that 
 if they were admitted for any purpose they be admitted for all pur- 
 poses. The committee held that the copies of the muster rolls kept 
 with the regiment, as well as those kept in the office of the Adjutant- 
 General at Washington and of the adjutant-general of Missouri, were 
 each original papers, sworn copies of which might be admitted. The 
 committee held also that they were evidence of the ages of the persons 
 whose names were contained in them, and when made about the time 
 of the election of the persons belonging to the regiments, but they 
 were not evidence of the residence of voters, and when made a year or 
 two before the election were not evidence of the persons composing 
 the regiment at the time of the election. Upon this and other evidence 
 the committee rejected a large number of illegal votes cast for the 
 contestee. 
 
 The contestee claimed that 302 persons voted as members of the 
 "Osterhaus brigade" who did not belong to it, and that a large num- 
 ber of others were nonresidents of the district, and asked that the 
 vote of the whole brigade be thrown out. The muster rolls were 
 made out nearly two years before the election, and constant recruiting 
 from the city of St. Louis had been going on since, so the committee 
 held that the 302 voters whose names were claimed not to be on the 
 muster rolls were not shown not to be members of the brigade. The 
 fact that large numbers of these names were difficult German names, 
 liable to be misspelled, probably accounted for a large part of the appar- 
 ent discrepancy. There was, however, specific proof of illegal votes 
 in many of the companies of the brigade, and the committee rejected 
 these votes. 
 
 A number of poll books of military companies were rejected by the 
 official canvassers because no "abstract of votes" was returned with 
 them. But the abstract was simply a computation or casting up of 
 the votes, and as the votes themselves were all returned (the election 
 in military companies was viA)a voce), the omission to cast them up 
 was immaterial. Making all the deductions and additions indicated 
 above, Mr. Knox had a plurality of 49 votes, and the committee 
 recommended resolutions declaring him elected. 
 
 The minority held that the case of contestant was not made out. 
 Without the rejection of the whole vote of the Abbey precinct a 
 majority could not be shown for him. Contestant did not in his notice 
 of contest ask that this precinct be thrown out, or allege fraud against 
 the judges, and he ought not to be permitted to do so now. His 
 original charge was illegal votes, and he now only claimed to have 
 
192 DIGEST OF CONTESTED ELECTION CASES. 
 
 proved 88 of these. Accepting- the proof according to the claims of 
 contestant, there were in fact only 70 such votes. If the charge of 
 fraud was allowed to be made now, the reception of that number of 
 illegal votes did not prove fraud, and the evidence on which the votes 
 were claimed to be illegal was not conclusive. The other charges 
 alleged to show fraud were not sustained by the evidence and the 
 minority could see no reason for rejecting this jwll. 
 
 The nuister rolls, the minority held, were not trustworthy evidence, 
 but if they were to be admitted they ought to avail both sides, and not 
 be admitted under a partial rule which permitted contestant to prove 
 by them such charges as he had made, while not permitting contestee 
 to prove in the same way the class of charges he had made. And con- 
 testant, further, had charged that votes were illegal on certain grounds, 
 and was now permitted to show them illegal on other grounds, which 
 ought not to be done. The specifications relied on by contestee were 
 specific, and the proof came within them, so that the committee's excuse 
 for permitting contestant to go beyond the law because contestee had 
 done so had no basis. Deducting all illegal votes as found bj' the 
 minority, Mr. Blair had a majority of 469 votes, "or, allowing that 
 identity of name proves identity of pei-son," of 399 votes. 
 
 After a brief debate the House adopted the resolutions presented by 
 the majoritv, giving the seat to contestant, by a vote of 81 to 33. 
 
 [1 Bart., 621-550.] 
 
 (8) ScHENCK and Blair. 
 
 Acceptance of military appointment vacate-'^ seat tinless appointment 
 resigned hefore the beginning of the session. Mr. SchencKs seat declared 
 not vacant; Mr. Blair'' s vacant. 
 
 Report by Mr. Dawes. 
 
 This report is not given or mentioned in 1 Bartlett, probably because 
 it is not strictly the report of a contested election case. Both Mr. 
 Schenck and Mr. Blair had been appointed major-generals in the 
 Army subsequent to their election to Congress, (reneral Schenck had 
 resigned before the beginning of the first session: General Blair not 
 until about a month after the session commenced. Both had resigned 
 under a verbal understanding that they might be restored to their posi- 
 tions if they desired. General Schenck had not made application to 
 be restored, but General Blair had made application for a command. 
 
 Upon these facts the committee reported that Mr. Schenck was enti- 
 tled to his seat, but that General Blair had never had the legal right 
 to qualify.^ The oiEces of major-general and member of Congress were 
 clearly incompatible, and under the principles laid down in all the prec- 
 edents the acceptance of a disqualifying office operated as a resig- 
 nation of the office already held. But under the precedent of the case 
 of Herrick (Fifteenth Congress) a Representative-elect was not a mem- 
 ber until the beginning of the first session of Congress, and the fact of 
 holding an incompatible office subsequent to election, but previous to 
 the beginning of the session, did not prevent the Representative-elect 
 from qualifying as a member, having previously resigned his other 
 office. General Schenck, therefoi-e, was entitled to retain his seat. 
 
 The case of General Blair invoh'ed a new question. He had resigned 
 
 'General Blair had already been deprived of his seat by the action of the House in 
 the case of Knox vs. Blair. 
 
THIRTY-EIGHTH CONGBESS. 193 
 
 his military office before qualifying as a member of Congress, but not 
 until a month after the day on which he could and should have quali- 
 fied. The committee held that where a person holding one office 
 is appointed to another and incompatible one, the duties of which are 
 required to commence at a certain time, and he continues to perform 
 the duties of the former office after that time, he must be held to have 
 declined the latter, and can not afterwards, by resigning his former 
 office, be entitled to assume the latter. At the opening of the first 
 session General Blair had to choose between the two offices, and having 
 continued in the military service, he could not afterwards take a seat 
 in Congress. 
 
 [Report No. 110, first session Thirty-eighth Congress.] 
 
 (9) McHenry vh. Yeaman. 
 
 Military Interference. Majority report for contestee; report iy Mr. 
 Voorhees to vacate seat. Contestee retained the seat. 
 
 Majority report by Mr. Smithers; minority report by Mr. Voorhees. 
 
 The sitting member received a majority of 5,224 votes. Contestant 
 asked that the election be declared void on account of certain military 
 orders, declaring the State under martial law and directing the mili- 
 tary to aid the civil authorities in holding a fair and peaceable election, 
 and on the ground that the election was carried by force and fraud, 
 and that test oaths were applied unknown to the laws of Kentucky. 
 
 The committee did not inquire into the propriety of the orders com- 
 plained of. Contestee received a very large vote — a majority of all 
 the voters in the district, as shown by the largest vote ever previously 
 cast. The population of the district had been depleted by the war, 
 and if all the voters left in it who did not vote had voted for contest- 
 ant contestee would still have been elected. There were occasional 
 irregularities, but contestee was plainly the choice of a majority of 
 the people, and ought to retain his seat. 
 
 Mr. Voorhees filed a report (not given in 1 Bartlett) contending that 
 the election was void, because held under martial law, and because 
 the orders and policy of the military authorities were such as to intimi- 
 date persons from voting for contestant. 
 
 Any election for a civil office held under martial law, where the qualifications of 
 voters are prescribed by military officers, is not such an election as the founders of 
 this Government intended should be held under the Constitution which they framed, 
 and should be declared void in all cases by the Congress of the nation. Such an 
 election is the one now in question. 
 
 After a brief debate the House passed the resolution declaring the 
 sitting member entitled to his seat by a vote of 96 to 26. 
 
 [1 Bart., 550-555, and Report No. 70, first session Thirty -eighth 
 Congress, part 2.] 
 
 (10) Todd vs. Jayne. 
 
 J^ima facie right to the seat. Contestant admitted. Fraud ; irreg- 
 ularities ; illegal votes. Majority report for contestant; "mimority 
 report for contestee. Contestant seated. 
 
 Majority report by Mr. Dawes; minority report by Mr. Scofield. 
 At the beginning of the session both contestant and contestee pre- 
 sented themselves and claimed the right to be sworn in. The question 
 
 H. Doc. 510 13 
 
194 DIGEST OF CONTESTED ELECTION CASES. 
 
 was referred to the Committee on Elections, who reported in favor of 
 Mr. Jayne. Mr. flayne presented a certificate of election, signed by 
 himself as governor, a certificate of election from the present governor, 
 and the proclamation of the secretary and acting governor, showing 
 that he was elected according to the official canvass. Mr. Todd pre- 
 sented a certificate from the same secretai'y and acting governor, stat- 
 ing that subsequent to the time fixed bj^ law for the official canvass 
 another return had been received, giving Mr. Todd a larger majority 
 than the majority of Mr. Jayne on the official canvass. The commit- 
 tee found that the secretary had no legal authority to issue this certifi- 
 cate, and it had no more weight than the statement of a private person. 
 But, taking it as true, it showed that ih& prima facie right, under the 
 law and the official canvass, belonged to Mr. Jayne. Whether the 
 votes in question were actually cast and coi'rectly returned was a ques- 
 tion to be considered when the case was heard on the merits. 
 
 On the merits of the case the committee reported for conte.stant. 
 On the face of the returns contestee had a majority of 16 votes. This 
 did not include the votes of two counties rejected by the Territorial 
 canvassers and the county whose returns were delayed. Conte.stant 
 claimed that the votes of two of these three counties should be counted, 
 and that illegal votes cast in ^-arious counties should be deducted. 
 Contestee made counter charges of illegal voting, and asked that one 
 of the counties not counted be counted and the others rejected. 
 
 Technical objections were raised by both sides. The committee 
 excluded a deposition taken bj- contestee a month after the expiration 
 of the legal time before a judge in the District of Columbia instead of 
 before an officer resident of the Territor3\ Contestee objected to the 
 notice of contest, because it was served iefore the result had been pro-' 
 claimed. The committee were — 
 
 of opinion that this was a defect which the sitting Delegate could waive, and that 
 by answering after the result had been proclaimed, and within the time when a new 
 notice of contest could have been served^ without availing himself of the objection, 
 and proceeding to take the testimony, he had waived the right to object to it at the 
 hearing. • 
 
 The testimony of contestant was taken before two justices of the 
 peace. The law of 1851 permitted it to lie taken i)efore justices of the 
 peace only when no other officer named in the law was a resident of 
 the Territory. Contestant claimed that the only other officers in the 
 Territory included in the law were the chief justice and associate 
 justice of the Territory, and that as their families were domiciled in 
 Iowa, and they only went into the Territory to hold court, they were 
 not residents of the TerritorJ^ 
 
 The committee were of opinion that the two justices nf the peace, residents of the 
 Territory, were competent to take the depositions. 
 
 The committee rejected 9 votes cast by a surve3nng partv only 
 temi)orarily in the Territory. They also deducted the votes "of one 
 precinct whose whole vote was evidently tainted with fraud. The 
 poll was opened the night before the election, at a different place from 
 that required by law, and a large number of illeg&,l votes received. 
 The next day, at the legal place, other votes were received and put 
 into the same box unopened. Names were added to the poll list to 
 make up for the extra ballots, and there were other indications of 
 fraud. 
 
 Another county was attacked because the votes of many Iowa soldiers 
 and a number of half breed Indians v-f vi^ rocpivprl "Rvom the evidence 
 
THIRTY-EIGHTH OONGilESS. 195 
 
 it was possible to tell the largest number of votes that could have been 
 cast by these persons, and they were eliminated and the rest counted. 
 Another county was not counted by the official canvassers nor by the 
 committee. A party friend of contestant, who had b(>cii appointed 
 judge, but was refused permission to act, I'cquested voters to vote 
 open tickets, and his friends did so, and he took their names. The 
 judges adjourned for dinner, taking the box with^ them. When the 
 box was opened in the evening there were more ballots than voters 
 had voted, but less for Mr. Todd than had voted open tickets for him. 
 There was a general fracas when this was discovered, and the ballots 
 never were finally canvassed. 
 
 The only other disputed point was the \'ote of Kittson County, which 
 was returned to the secretary of the Teri-itory a few days late. The 
 committee did not think this ought to prevent it being counted, if it 
 was otherwise correct. Contestee claimed that the vote was fraudu-. 
 lent and fictitious, but his only evidence was the deposition taken in 
 Washington, which had been excluded by the committee. It was also 
 objected to on the ground that the precinct was in the Indian countrj'^. 
 But the committee held that the only Indian lands excluded from the 
 limits of the Territory by the organic act were such as were held 
 under certain treaties. This was not such land, and the votes not 
 having been proved to be otherwise illegal, should be counted. This 
 would give a majority to contestant, and the committee recommended 
 that he be seated. 
 
 Mr. Scofield and Mr. Upson presented a minority report sustaining 
 the right of the sitting member. The^' rested the case on Kittson 
 County. If evidence not strictly within the law of 1851 was to be 
 excluded, the law should be impartially applied, which would exclude 
 all of contestant's testimony. The chief justice of the Territory was 
 required by law to be a resident of the Territory, and he was actually 
 in the Territory during part of the time that the testimony was being 
 taken, and issued subpcenas for contestant, who aclinowledged him in 
 his notices to be a resident of the Territoi-y. So lon^ as he was a res- 
 ident, testimony could not be taken before justices of the peace under 
 the law. If contestee was to be held to have waived his objection to 
 the notice of contest, contestant must also be held to have waived all 
 objections to the testimony in regard to Kittson County by being pres- 
 ent and cross-examining the witness (though under protest), and con- 
 senting to an adjournment that the deposition might be completed. If 
 this deposition were admitted it would show that the election in Kitt- 
 son County-was a fraudulent one. Unless this vote was counted, the 
 case of contestant, according to the statements of the majority report, 
 could not be made out. After some debate the House adopted the 
 resolution declaring contestee not elected, by a vote 91 to 1, and that 
 declaring contestant elected by a vote of 61 to 31. 
 
 [1 Bart., 655-668, and on 'prima facie case, Keport No. 1, first session, 
 Thirty-eighth Congress.] 
 
 (11) Lindsay m. Scott. 
 
 Illegal votes; wregalarlties. Report for contestee. Contestee retained 
 the seat. 
 
 Report by Mr. Upson. 
 
 According to the returns, contestee had a majority of 489 votes. 
 The election was contested on the ground that many disloyal persons 
 
196 DIC4EST OF CONTESTED ELECTION CASES. 
 
 voted illegall}' for contewtec and that in a number of precincts neither 
 the election officers nor the voters tools the oath of loyalty prescribed 
 by the ronvcMition of ttie State. The committee held that the require- 
 ment of this oath was in efi'ect the requirement of loyalty as a qualifi- 
 cation (ov Noting, and while the election officers might possibly have 
 no discretion to refuse the vote of a person who should take the oath 
 falsely, the vote wooild be none the less an illegal one. 
 
 In a number of precincts it appeared that this oath was taken neither 
 by the election officers nor the voters and the committee rejected the 
 votes of these precincts. The laws of the State required that all bal- 
 lots should be numbered and that no ballots not numbered should be 
 counted. In three precincts the ballots were not numbered and the 
 committee rejected the votes (but on this point they were not unani- 
 mous, as they were on the others). The votes of two military com- 
 panies were objected to because given vha voce, but the committee 
 found on examination that this was permitted. Contestant also charged 
 many individual dislo}^al votes, but the committee found the evidence 
 in regard to them insufficient. Making all the deductions required 
 contestee still had a majority of 61 votes left, and the committee 
 recommended that he retain his seat. The resolution presented was 
 adopted without debate or division. 
 
 [1 Bart., 569-574.] 
 
 (12) Kline iv. Mteks. 
 
 Opportunity to recount refused in- absence of evidencr if proiahle 
 fraud or error. Contestee retained the seat. 
 
 Report by Mr. Scofield. 
 
 Contestant conceded that he had not made out his case on the evi- 
 dence presented, but showed that he had made an unsuccessful effort 
 to procure a recount of the ballots and applied for an order of the 
 House to send for the boxes and recount the votes. 
 
 The committee were of opinion that such an application should be founded upon 
 some proof sufficient at least to raise a presumption of mistake, irregularity, or fraud 
 in the original count, and ought not to be granted upon the mere suggestion of pos- 
 sible error. The contestant failed to furnish such proof. 
 
 On the contrary, the election appeared to have been fair and the 
 count careful. 
 
 To adopt the rule that ballot boxes should be opened upon the mere rcquext of the 
 defeated candidate would occasion more fraud than it could possibly expose. 
 
 The- committee recommended resolutions declaring contestee elected. 
 Mr. Dawes and Mr. Ganson dissented from the ruling of the commit- 
 tee, but the resolutions were adopted without division. 
 
 [1 Bart., 5Y1, 575.] 
 
 (13) Carrigax vs. Thayek. 
 
 Recount refwwd, in absence of eoldence of probable fraud or error, 
 or (f legal steps to procure it uHthln the time. 
 
 Report by Mr. Dawes. 
 
 This was another case from Philadelphia in which a recount by 
 order of the House was asked for. The mayor and recorder of Phil- 
 adelphia had refused to obey & ^u})^t.mv& duces tecum, issued by two 
 
THIRTY-EIGHTH CONGRESS. 197 
 
 justices of the peace at the instance of contestant. The committee 
 refused to grant the application, on the grounds stated in Kline m. 
 Myers, and also because these two justices of the peace had no juris- 
 diction to issue subpoenas in the case, and hence no legal steps had 
 been taken to procure the recount within the sixtj' days. The act of 
 1851 gave jurisdiction and authority to justices of the peace only in case 
 none of the other officers mentioned in the act were resident in the dis- 
 trict. There were at least three such officers resident in this district. 
 The contestant conceded that on the evidence already taken he had not 
 made out his case, and the committee accordingly recommended resolu- 
 tion declaring contestee elected. The resolutions were passed by the 
 House without debate or division. 
 [1 Bart., 576-577.] 
 
 (14) Segae. 
 
 State in rebellion; election held in only a small part of district. 
 Claimant not admitted. 
 
 Report by Mr. Dawes. 
 
 At the election in question about 1,667 votes were cast, of which 
 Mr." Segar received about 1,300. He had a certificate of election in 
 due form, and asked to be sworn in and to occupy the seat until some 
 one else should appear showing a better title. 
 
 But the committee were of opinion that they should inquire into and report the 
 facts concerning this election and their conclusion thereon. 
 
 There were twenty counties in the district, and polls were opened 
 in only four of them, containing about one-fourth of the voting popu- 
 lation; the rest of the district being occupied by the rebel armies. 
 Under the principles decided in previous cases, the committee held 
 that this could not be considered an election. In all previous cases — 
 
 It was recognized as a rule that when the vote actually polled was such a minority 
 of the whole vote that it could not be determined that the person selected by that 
 minority was the choice of the whole district, and the absent majority were not 
 voluntarily staying away from the polls, but were kept away by force, then no such 
 selection thus made could be treated as an election. 
 
 The resolution recommended was adopted, after a brief debate, by a 
 vote of 94 to 23. 
 [IBart., 577-579.1 
 
 (15) Field. 
 
 State not redistricted. Election in nearly all of old district swp- 
 jyressed hy military im.terference. Claimant not admitted. 
 
 Report by Mr. Dawes. 
 
 Mr. Field claimed to have been elected from the First district of 
 Louisiana, but the State had not been redistricted under the new 
 apportionment law, giving it five Representatives instead of four, and 
 the First district, from which he claimed his seat, was the old First 
 district. 
 
 If, therefore, there was no other difficulty in the way of giving effect to this alleged 
 election, it could not be said to have been held in conformity with, but in contra- 
 vention of, law. 
 
 But the main objection to the election was that it was held in a very 
 small part of the district. The district was composed of a part of the 
 
198 DIGEST OF CONTESTED ELECTION f!A8E8. 
 
 citj' of New Orleans, and two small outside parishes. In the city of 
 New Orleans, where nineteen-twenticths of the voters resided, the 
 whole election was suppressed by orders of General Shepley, military 
 go\'ernor. There was some evidence that 156 votes were cast in one 
 of the outside parishes,, and perhaps about as many were cast in the 
 other; but in the city of New Orleans 10,000 voters were kept from 
 the polls l)v soldiers acting under the orders of General IShepley. The 
 committee could see no reason for this action on the part of the mili- 
 tary goveinor, and strongly condemned it, but it was effectual, and 
 even if the. fact that the district had no legal existence, and that the 
 votes were informalh' returned to an unauthorized private committee, 
 could be overlooked, the fact that the election was thus suppressed in 
 nearly the whole district was fatal to its \'aliditj'. 
 
 After a brief debate, the resolution recommended, refusing admis- 
 sion to the claimant, was passed by a vote of 85 to 48. 
 
 [1 Bart., 580-583.] 
 
 (16) BoNANzo, Field, and Maxx. 
 
 Reorganization of State government initiated (t)nl partly directed hy 
 military authority. Majority report for, and )nliwr/ty repeirt againit, 
 the admission of claimants. No action hy the House. 
 
 Majority report hj Mr. Dawes; minority report by Mr. Smithers. 
 
 These cases involved the question of the recognition of the reorgan- 
 ized State government of Louisiana. Full reports were made on the 
 case of Bonanzo, and brief reports in the other two cases, calling 
 attention to the fact that they were based on the same state of facts. 
 
 An election had been held in Louisiana under the proclamation of 
 the military governor, and members elected at it had been admitted 
 to the Thirty-seventh Congress. No election had been held at the 
 regular time for the election for the Thirtj'-eighth Congress, but 
 soon after that time Major-General Banks had issued a proclamation 
 inviting the loyal people of the State to participate in the election of 
 State officers. The State oiEcers were elected, and afterwards, under 
 the proclamation both of the civil and military authorities, delegates 
 were elected to a convention to revise the constitution of the State. 
 This convention divided the State into live Congressional districts, 
 and directed an election to be held for Representatives in Congress. 
 The validity of this election, the committee held, depended "upon the 
 effect which the House is disposed to give to the efforts to reorganize 
 a State government in Louisiana." The objection to these efforts 
 was that they originated in no previous State or Federal law; but 
 this was the result of necessity. "The State was attempting to rise 
 out of the ruin caused by the Si.vmi?A nivrth rote oi its laws." There 
 were no State laws providing for such a contingencv, and it was not 
 within the power of the United States to pass them. Their enact- 
 ment was within the power rescu'ved "to the States, respectively, or to 
 the people.^" If this new government was the work of the people, and 
 was republican in form, it was entitled to recognition. The committee 
 found from the evidence in the case that the elections in question had 
 been participated in by a large majority of the loyal people of the 
 State, and that the loyal people constituted a majority of all the peo- 
 ple, They therefore recommended that the claimants be admitted. 
 
THIRTY-EIGHTH CONGRESS. 199 
 
 The minority wore of the opinion that the election in question did 
 not represent the free and voluntary action of the majority of the 
 loyal people of the State. The election was called by the proclama- 
 tion of a military ruler, and his orders were such as to amount to a 
 practical command to the people to take part. The State was under 
 martial law, a condition inconsistent with the free creation of a civil 
 government. As nearly as could be judged from available data, much 
 less than half of the kwal voters within the Union lines took part in 
 the election, and a large part of the State was without the lines. It 
 was in evidence that a large class of voters voluntarily remained away 
 from the polls. In an ordinary election, held under an existing law, 
 they would have been held to have acquiesced in the result, but an 
 election to organize a new government must be participated in by a 
 majority of the people. The minority thought that the restoration of 
 the unquestioned authority of the United States in Louisiana depended 
 more on the prosecution of the war and the destruction of the seceding 
 government than on the organization of impotent State governments, 
 subservient to military authority, and recommended that the claim- 
 ants be not admitted. 
 
 There was no action by the House. 
 
 [1 Bart., 583-597; 2 Bart., 1-16.] 
 
 (17) Jacks and Johnson. 
 
 Election iinder provisloiial gtivernment of Arkansas. Committee 
 ■(ninriended admission of claimwntK. No action hy the Hmise. 
 
 Report by Mr. Dawes. 
 
 The people of Arkansas had met in convention and amended the 
 constitution of the State, and provided for a provisional government. 
 The amended constitution and other acts of the convention were rati- 
 fied by a large and substantiall}- unanimous vote. It was apparent that 
 a large portion of the people of the State had always been loyal, and 
 at least 10,000 volunteer soldiers had been furnished for the Union 
 army. At the election for members of Congress a very full vote was 
 cast, and both claimants were elected by very large majorities. Under 
 the principles laid down in the case of Bonanzo, the committee thought 
 the claimants ought to be admitted, and recommended resolutions to 
 that effect. 
 
 There was no action by the House. 
 
 [1 Bart., 597-604; 2 Bart., l7-2i.] 
 
 i'i'< 
 
200 DIGEST OF CONTESTED ELECTION CASES. 
 
 THIRTY-NINTH CONGRESS, 1865-1867. 
 
 Committee on Elections. 
 
 Mr. Dawes, Massachusetts, Mr. Paine, Wisconsin, 
 
 BcoFiELD, Penns3'lvania, Shellabakger, Ohio, 
 
 Baxter, Vermont, McClurg, Missouri, 
 
 Upson, Michigan, Radford, New York, 
 
 Mr. Marshall, Illinois. 
 
 Mr. Paine resigned his place at the commencement of the second 
 session, and Mr. Poland, of Vermont, took his place. 
 
 Cases. 
 
 (1) Augustus C. Baldwin vs. Rowland E. Trowbridge, Michujun. 
 
 (2) Henry D. Washburn vs. Daniel W. Voorhees, Indiana. 
 
 (3) William E. Dodge vs. James Brooks, Wew York. 
 
 (4) Charles Follett vs. Columbus Delano, Ohio. 
 
 (5) S. H. Boyd vs. John R. Kelso, Missouri. 
 
 (6) Smith Fuller vs. John L. Dawson, Penn^yVoania. 
 
 (7) William H. Koontz vs. Alexander H. CofFroth (two cases), 
 Pennsylvania. 
 
 (8) Dorsey B. Thomas vs. Samuel M. Arnell, Tennessee. 
 
 (1) Baldwin vs. Trowbridge. 
 
 Right of State legislature to fix place ofelectimis in violation of State 
 constitution. Majority report for contestee; minority report foi^ con- 
 testant. Contestee retained the seat. 
 
 Majority report by Mr. Scofield; minority report by Mr. Marshall. 
 
 Contestee had a majority of all the votes cast, but contestant had a 
 majority of the votes cast inside the State. The State constitution 
 prohibited the elector from voting outside of the township or ward in 
 which he resided, but the legislature had passed a law permitting .sol- 
 diers to vote outside of the State, wherever their regiments might be 
 encamped. A large number of such votes were cast, and the majority 
 of Mr. Trowbridge depended on them. The supreme court of Michi- 
 gan had held that the provision permitting these votes to be cast out- 
 side the State was in conflict with the Constitution, and the committee 
 agreed with the court, but held that in case of such conflict the power 
 ot the legislature was paramount. The power to flx the times and 
 places of elections was conferred, \)\ the terms of the Constitution, on 
 the legislatures of the States. The fact that each of the colonies, at 
 the time of the adoption of the Constitution, had a legislature similar 
 to the legislatures of the present States, and that throughout the Con- 
 stitution the word "legislature" was consistently used to designate 
 , this assembly, and was carefulh' distinguished from the word "con- 
 vention," which was also used with a definite meaning, showed that by 
 the word "legislature" the Constitution meant "the legislature eo 
 nomine, as known in the political history of the country." The power 
 to act at all in the premises was derived from the Constitution, and 
 
THIKTY-NINTH CONGRESS. 201 
 
 not from any previously existing power, and if it was conferred upon 
 the legislature by the Constitution, a constitutional convention could 
 not exercise it, or inhibit the legislature from exercising it. 
 
 Even if the constitutional convention was to be considered as a con- 
 structive legislature, it could only be held to possess this power by 
 virtue of its character as a legislature, and its enactments on the sub- 
 ject could onljr have the force of legislation, which subsequent legisla- 
 tion could supersede. 
 
 The law having been passed by the legislature and not being in con- 
 flict with the Constitution or laws-of the United States, was valid, and 
 contestee, having been elected by the votes received in accordance with 
 it, was entitled to his seat. 
 
 Mr. Marshall in a report signed only by himself dissented from the 
 opinion of the committee. The legislative assembly of limited powers, 
 known as the "general assembly," or by various other names in the 
 different States, did not exhaust the legislative power of the State. 
 
 The "legislature" of a State, in its fullest and broadest sense, signifies that body 
 in which all the legislative powers of a State reside, and that body is the people 
 themselves who exercise the elective franchise. 
 
 The secondary or subordinate legislature — 
 
 is the creature of the organic laws of the State, owes its existence to it, and can 
 rightly do nothing in contravention of its provisions. If, then, this section of the 
 Federal Constitution can be construed to refer to this secondary or subordinate legis- 
 lative body of a State, it must be held to mean that the time, place, and manner for 
 holding elections for Representatives shall be prescribed in each State by the legis- 
 latu'e thereof, such legislature acting in subordination and in conformity to that 
 organic law to which it owes its own existence. 
 
 Mr. Marshall held that the cases of Shiel vs. Thayer (Thirty -seventh 
 Congress) and Farlee vs. Runk (Twenty-ninth Congress) had already 
 decided the question according to his interpretation. But admitting 
 the interpretation of the committee, the law in question was not a law 
 to fix the places of holding elections. If the legislature had passed a 
 law that an^' citizen of the State might vote at any place ~wnere" he 
 happened to be on the day of election, it would not be a law fixing the 
 place of elections. This was practically that law as applied to a cer- 
 tain class of citizens; and in any case it was doubtful if the legislature 
 of a State could fix a place for holding elections outside the limits of 
 the State. If the legislature had this power, so had Congress, and it 
 might pass a law requiring all the citizens of Michigan to vote in 
 Chicago. 
 
 The resolution presented by the committee declaring contestee 
 elected was passed by a vote of 108 to 30. . 
 
 [2 Bart., 46-54.] 
 
 (2) Washbukn vs. Voorhees. 
 
 Ballot-iox stuffing. Majority report for contestant; minority report 
 for contestee. Contestant seated. 
 
 Majority report by Mr. Dawes; minority report by Mr. Marshall. 
 
 The testimony in this case was all taken before the mayor of Terre 
 Haute; but it was not taken in the city of Terre Haute, but in a num- 
 ber of small towns in the same county. Under the laws of Indiana the 
 mayor was only empowered to administer oaths in the city of which 
 he was mayor, and contestee moved to exclude the testimony in this 
 
202 DIGEST OF CONTESTED ELECTION CASES. 
 
 case on the ground that it was taken before an unauthorized officer. 
 But the committee held that the right of the mayor to take testimony 
 in this case was not derived from the laws of Indiana, but from the 
 United States statute of 1851. Until 1861 the laws of Indiana had not 
 empowered all mayors to administer oaths, even in their own towns, 
 and yet since 1851 they had been authorized by name in the United 
 States statute to take testimony in contested election cases. 
 
 All the testimony in the case was taken by contestant, contestee 
 neither offering any testimony of his own nor attending to ci'oss- 
 examine the witnesses examined by contestant.' A large num))er of 
 charges were made by contestant, but the only ones relied on were 
 fraud and ballot-box stuffing in four precincts. In each of these pre- 
 cincts a number of voters considerably in excess of the number 
 returned as voting for Mr. Washburn were called and testified that 
 they voted for him. The votes of a few voters who could not be 
 found were proved by others, but the number themselves testifying 
 was in each case larger than the returned number. In two of the 
 precincts there was in addition proof of actual fraud. In both these 
 cases all the election officers were partisans of contestee. In pne pre- 
 cinct the judges after counting 15 or 20 votes adjourned for supper, 
 putting the 16 or 20 strung ballots on top of the uncounted ballots and 
 locking the box. The box was left in the room where the election had 
 been held, unprotected except by the lock. On the return of the 
 judges the key belonging to the box would not unlock it, but it was 
 unlocked by another key in the possession of one of the judges. The 
 string of counted ballots was not visible, but after some time it was 
 found in the bottom of the box > under the uncounted ballots. The 
 judges of election issued a public card the next day acknowledging 
 that fraud was probably perpetrated, but insisting that it was without 
 their knowledge. There were counted for contestant 143 votes, but 
 170 voters were proved, all but 6 by their own testimony, to have 
 vot^d for him. The committee held that the return was so tainted 
 with fraud that the truth could not be deduced from it and that it 
 must be rejected. But the rejection of the return did not necessarily 
 leave the votes actually cast uncounted. The 170 votes proved outside 
 the return were counted for Mr. Washburn. 
 
 At the other precinct where there was direct proof of fi-aud 108 
 persons were shown to have voted for contestant, while only 88 were 
 returned. The election officers all took dinner with the inspector, who 
 put the ballot box into a closed bedroom. After dinner he went 
 into this bedroom and remained for fifteen minutes. The next daj' 
 the servant girl found that she could not open the door leading from 
 this bedroom to another, and, looking for the cause, found that a tack 
 had been removed from the carpet and a large number of Republican 
 tickets put under it. The committee rejected this return and counted 
 the 108 votes proved outside the return. 
 
 The proof of fraud in the other two precincts consisted chieffy of the 
 discrepancy between the vote proved and the vote returned,' though 
 there were other suspicious circumstances. In one precinct the 
 returned vote for contestant was 58, the proved vote 91 ; in the other 
 case the returned vote was 24, the proved vote 36. In these two pre- 
 cincts the committee preferred not to reject the whole return, espe- 
 
 ' "What the reason for this was does not appear from either report. 
 
THIRTY-NINTH CONGRESS. 203 
 
 cially as the result would not be affected either way, but counted for 
 contestant the 33 and 12 votes proved in excess of the returns. Making 
 these corrections, contestant would have a majority of ^25 votes, and 
 the committee recommended that he be seated. 
 
 The minority (Mr. Marshall and Mr. Radford) held that the charges 
 had not been sustained. There was evidence tending to show that more 
 votes were cast for Mr. Washburn than were returned for him, but if 
 all the votes proved by the testimony of others than the voter, or by 
 the testimony of voters who could not read and might have been imposed 
 upon, were "disregarded, nearly all the excess would disappear. But 
 even taking the evidence as trae, it merely showed that contestant was 
 entitled to 75 additional votes, which could be given to him without 
 affecting the result. The precincts where the additional votes were 
 claimed were always strong Democratic districts, and contestant was 
 I'eturned as receiving about the usual Republican vote in them. No 
 sane man could believe that he actually received a majority of the votes 
 in them, and unless he did he could not have received a majority of 
 the votes in the district. The minority report quoted all the evidence 
 by which fraud was sought to be shown, and held that it was insuffi- 
 cient. All the circumstances stated in the majority report could be 
 explained in a way consistent with the innocence of the election officers. 
 The ballot box where the strung tickets were found under the others 
 might have been shaken bj"^ someone without being opened. The 
 inspector who went into the room alone with the ballot box was its 
 lawful custodian and had a right to go there. He might have gone 
 to change his clothes or write a letter: The girl who found the tickets 
 under the carpet signed her testimony with her mark, and did not 
 explain how she knew they were "Republican tickets," or whether 
 they had on them the name of contestant. 
 
 The minority sustained the objection to the testimony taken before 
 the mayor, but did not press the point. They concluded by saying 
 that if the report of the majority was sustained the case would " de- 
 serve to stand out in history solitary and alone, and occupy a place to 
 itself and above all others on the. grand roll of partisan outrage and 
 injustice." 
 
 The resolutions recommended by the majority, giving the seat to 
 contestant, were adopted by a vote of 87 to 36. 
 
 [2 Bart., 54-78.] 
 
 (3) Dodge -?«. Brooks. 
 
 Fraud. Majority report fur cinite-xtant; ininoriti/ ri'pwt far van- 
 te^tec. Oontestan.t seated. 
 
 Majority report by Mr. Dawes; minority report by Mr. Marshall. 
 
 According to the returns contestee had a plurality of 14y votes. 
 Many long and somewhat vague charges were made by both parties, 
 but the charges relied on bjj^ contestant were charges of irregularities 
 and of fraudulent registration and the reception of fraudulent votes 
 in four precincts. The district was entirely comprised within the city 
 of New York, and the precincts where fraud was charged were pre- 
 cincts bordering on the East River, filled with tenement houses and 
 shanties. Two of the four precincts where fraud was charged were 
 rejected by the committee — the Fifteenth district of the Eighteenth 
 Ward, known as "Mackerelville," a tenement-house district bordering 
 
204 DIGEST OF CONTESTED ELECTION CASES. ' 
 
 on the river, and the Seventh district of the Twenty-tirst Ward, known 
 as "Dutch Hill," a stony elevation covered with temporary shanties, 
 built on ground not owned or rented by the occupants. 
 
 Especially in such precincts as these, whore the detection of illegal 
 voting would be difficult even when the laws were strictly observed, 
 was it necessary that the rigid registration laws should be fully carried 
 out. But in the first of these districts nearly all the provisions of the 
 law were violated. The district was a new one, divided off from the 
 old Twelfth district since the last election. The place for holding 
 the election was not designated until two days before the election, and 
 the voters, and even the election officers, had difficult}' in finding it 
 on the day of election. The registering officers were not residents of 
 the district, as required, and did not hold their meetings during all the 
 legal time, and, of course, not in the legal place, as that had not yet 
 been designated. One of the three registering officers did not attend 
 at all and the other two were not regular in their attendance, leaving 
 most of the registering to be done by an unsworn acting clerk, brother 
 of the regularly appointed clerk. Many names were put down in an 
 old account book by the keeper of the saloon where the registering 
 officers met, and afterwards copied on the registry, partlj' by himself. 
 No adequate precautions were taken to limit the registration to the 
 legal voters. The result was that at the election this district polled 
 nearly as large a vote as had ever been polled in the whole of the old 
 Twelfth district, from which it was cut off'. No new houses had been 
 built, and there was no known increase of population. 
 
 The committee were — 
 
 of the opinion that there was no registry at this district; ttat neither of the per- 
 sons appointed as registers was competent to hold the office; that the man acting as 
 clerk acted without authority; that the mode of making up the registry itself was a 
 fraud upon the registry law and in no manner a compliance with its pro\dsions; that 
 the use of such registry at the polls as a guide to the inspectors of election contributed 
 directly to the polling of fraudulent votes; and that the large and unaccounted-for 
 increase of votes at this poll is directly attributed to these departures from and vio- 
 lations of plain provisions of law, and that to accept the result of such poll so taken 
 and so counted as the true account of legal votes only is to sanction most inexcusable 
 violations of important provisions of law, essential to the purity of the ballot box. 
 
 The committee therefore excluded the vote of this poll. 
 
 The charges against the other precinct were of much the same 
 character. It was a "shanty" or "squatter" district, and there could 
 have been no increase in its population without an increase in the 
 houses, but there had been a decrease of houses. The vote, however, 
 increased 100 per cent. The houses not being arranged in streets or 
 numbered, it was almost impossible to detect illegal voting, bizt con- 
 testant introduced the testimony of a skilled man who had spent six 
 weeks hunting through the district and was unable to find anyone to 
 correspond to 109 of the names on the poll list. One of the "officers 
 of election testified in detail to the methods of fraudulent i-egistration 
 and voting adopted by himself and the other officers. The testimony 
 was corroborated on most material points by two other witnesses, and 
 not denied in the main by another officer of election who testified. 
 From all the testimony it was clear that at least 116 fraudulent votes 
 were cast, but it was impossible to tell for whom more than 30 of 
 them were cast. These were cast for contestee. The rest of the poll 
 must either be retained with these fraudulent votes, one-fourth of the 
 whole number, included in it, or the whole poll must be rejected. 
 
THIRTY-NINTH CONGRESS. 205 
 
 The committee thought the latter course the more just, but if only the 
 30 votes were rejected the result would be the same. 
 
 In the Thirteenth district, Eighteenth Ward, there was testimony 
 to similar frauds; but as about an equal number of witnesses testified 
 to the contrary, the committee did not find the proof sufficient to 
 reject the poll. In the Third district, Twenty-first Ward, there were 
 great irregularities, and contestant claimed to have proved that more 
 votes were cast for him than were returned. But 13 of these votes 
 were only proved by statements made by the voters to witnesses long 
 aftei' the election, and disregarding these only a small excess remained. 
 
 The committee recommended the seating of contestant. 
 . The minority held that contestant's case was not sustained by the 
 evidence, and that, on the contrary, if he were the sitting member he 
 would have to be unseated for bribery. The specifications of the 
 notice of contest were very vague and general, and not such as con- 
 testee ought to be called upon to meet. The testimony was of an 
 entirely inconclusive sort. The fact of increase in the vote of some of 
 the wards might be contrasted with a still greater increase in the vote 
 of wards giving large majorities for contestant. The minority cited 
 from the evidence very fullj^ to show that it did not sustain the state- 
 ments and inferences of the majority report. 
 
 The contestant was a man of immense wealth, and had himself spent 
 $6,000 in election expenses, while the contributions of his friends 
 increased the expenditure to $15,000. The expenditure of such 
 immense sums was a rnenace to elections, and ought to be rebuked. 
 But if the polls rejected by the majority were to be rejected there was 
 another poll where the election officers left the ballots unprotected for 
 some time when the count was only half completed. There was better 
 reason for rejecting this poll than the others, and if all three were 
 rejected they would about balance each other. 
 
 The House passed the resolutions seating contestant by a vote of 
 70 to 53. 
 
 [2 Bart., 78-110]. 
 
 (4) FoLLETT VS. Delano. 
 
 Service of notice of contest proved hy ex parte affidavit. Irregulari- 
 ties in poll hooTcs. Report for contestee. COntestee retained the seat. 
 
 Report by Mr. Dawes. 
 
 Contestee did not reply to the notice of contest, and denied that it 
 had been regularly served. The only proof that it had been served at 
 all was an ex parte afiidavit appended to it. The committee held that 
 while in ordinary cases the sitting member in his answer admits the 
 service of the notice, yet when he does not answer or admit it the fact 
 of service ought to be proved by deposition and not^by affidavit. The 
 afiidavit stated that the notice was served by leaving it at the house of 
 contestee, but contestee insisted that under the act of 1851, requiring 
 that contestant should '"''give notice in writing," he was entitled to per- 
 sonal service, and the committee sustained him in this. Another affi- 
 davit .stated that contestee was given notice on January 6, but contestee 
 contended that this was too late. The law of Ohio providec" that the 
 result must be declared "within ten days after the first day of Decem- 
 ber," but there was no way provided by statute by which anyone could 
 ascertain on what day within this limit the determination was made. 
 
206 DIGEST OF CONTESTED ELECTION CASES. 
 
 The committee held that under this law the thirty days within which 
 notice must be served commenced to run on December 10, unless 
 knowledge of a determination on an earlier day was brought home to 
 contestant. Hence if the service on Januaiy .5 were properly proved 
 it would be within the time. The contestant claimed that the sitting 
 member, by not answering the notice of contest, must be taken to have 
 confessed the truth of the allegations. But the committee held that 
 however fair this might be, if contestant and contestee were the only 
 parties interested in the case, the right of the majority of the people 
 to representation ought not to be compromised in this way. 
 
 The committee are of opinion that the House should require proof that the sitting 
 member has not, and that the contestant has, a majority of the legal votes before 
 unseating the one and admitting the other, however the sitting member may have 
 seen fit to conduct his own case in a contest. 
 
 But the comm,ittee chose to examine into the merits of the case 
 without relying on these technical points of pleading. The allegations 
 relied on hj contestant were that the poll books forming part of the 
 returns of certain "soldier votes" wei-e defective in foi'm and sub- 
 stance. It appeared that some of these poll books were not signed and 
 certified; one of them did not contain the oath, and one of them did 
 not show when or where the election was held. But the committee 
 found that under the law the result was to be declared from the tally 
 sheets and not from the poll books, and that the tally sheets were 
 required to accompanj' the poll books, and to contain the same signa- 
 tures and certificates as the poll books should contain. In the absence 
 of proof to the contrary the committee presumed that the talh^ sheets 
 had been returned correctly and in due form. This presumption was 
 not rebutted by showing irregularities in the poll books, for the law 
 did not require the tally sheets to be corroborated by the poll books; 
 they were of themselves a sufficient basis for the return. There being, 
 then, no evidence overthrowing the prima fact'/' cori'cctness of the 
 returns, by which contestee had a majoritjr of 239 votes, the committee 
 recommended that he retain his seat. 
 
 The resolution presented b\' the committee was passed without 
 division. 
 
 [2 Bart., 113-121.] 
 
 (5) Boyd w. Kelso. 
 
 Irregularities. Report for contestee. Cvntwtec rditlncd the seat. 
 
 Report by Mr. Upson. 
 
 There were two notices of contest. The first was vague and indefi- 
 nite, but as the contestee had not objected to it in his answer, the 
 committee considered it. The second was not ser\ed within the time 
 required by law, and there was no proof except the certificate of a 
 deputy sheriff that it was served at all. The committee did not con- 
 sicfer this notice or the testimony offered under it, but said that a 
 casual examination of its contents indicated that it would not affect 
 the result. The contestant introduced abstracts of votes from the 
 various counties of the district, and also an abstract from the secretary 
 of state, giving the votes, except certain returns which had been 
 rejected for informality. One of the county certificates seemed to be 
 made up of votes from two counties, though it was only certified by 
 the clerk of one. It was claimed that this vote ought to be rejected, 
 but it is not clear what the committee did with it. The testimonv in 
 
■THIRTY-NINTH CONGKESS. 207 
 
 regard to the various irregularities alleged was very unsatisfactory. 
 A few votes were testified to have been cast by soldiers or by non- 
 residents of the precincts, but there was no evidence that the soldiers 
 were not legal voters, and nonresidents of the precinct might vote in 
 Missouri under some circumstances. Some of the poll books appeared 
 like poll books of a nira voce election, but from the testimony of other 
 witnesses it would seem that ballots were used. One military poll 
 hook was in the form for an election by ballot, but soldiers could vote 
 either viva voce or by ballot, so this was immaterial. The evidence 
 presented by contestant did not satisfactorily show what votes were 
 counted for either party on the final canvass, and he had not shown 
 anything to overcome the prima facie right of contestee. 
 
 The resolution declaring the sitting member entitled to the seat was 
 passed without division. 
 
 [2 Bart., 121-126.] 
 
 (6) FuLLEK VS. Dawson. 
 
 Irregvlarities. Repcyrt for contestee. Contestee retained the seat. 
 
 Report by Mr. Paine. 
 
 According to the returns as canvassed, contestee had a majority of 
 125 votes. Contestant alleged that various military returns, giving 
 him an aggregate majority of 141 votes, were wrongfully excluded 
 from the canvass, and that certain military returns giving majorities 
 for contestee ought not to have been included in the canvass. Con- 
 testee objected that the notice of contest had never been legally served 
 on him, and that it was vague and indefinite, and that much of the 
 testimony introduced did^not properly come within the specifications. 
 He also insisted that there was no evidence that the returns alleged to 
 have been wrongly counted for him were really counted at all. The 
 committee examined the evidence without reference to these points, 
 and as the conclusion thus reached was favorable to contestee, it was 
 then not necessary to decide them. 
 
 A detailed examination of the evidence in regard to the military 
 returns alleged to have been rejected showed that some of them were 
 properly rejected, and that the vote claimed by contestant must be 
 corrected in other instances, so that the total majority received by him 
 in the precincts that might properly be counted was only 104. This 
 would leave contestee still a majority of 21 votes, which could not be 
 reduced below 16 votes by the construction most favorable to contest- 
 ant of the evidence against returns giving a majority for contestee. 
 The committee therefore recommended a resolution declaring contestee 
 entitled to his seat, which was passed without division. 
 
 [2 Bart., 126-138.] 
 
 (7) KOONTZ vs. COFFROTH. 
 
 Prima facie case. Conflicting returns,' soma returnn not counted. 
 Seat given to contestee. Case on merits. Irregularities in returns and 
 illegal votes. Contestant seated. 
 
 Majority re,Tpovt on prima facie case by Mr. Upson; minority report 
 by Mr. Paine. 
 
 Report on case on merits by Mr. McClurg. 
 
 The governor of Pennsylvania, in his proclamation declaring who 
 were elected to represent the State in Congress, refused to declare 
 
208 DIGEST OF CONTESTED ELECTION CASES. 
 
 either claimant from this district elected. The House passed a resolu- 
 tion referring the papers to the Committee on Elections, with instruc- 
 tions to report " which of the rival claimants to the vacant seat from 
 that district has the prima facie right thereto, reserving to the other 
 party the privilege of contesting the case upon the merits." Acting 
 under this resolution the majority of the committee reported in favor 
 of Mr. Coffroth, and the minority in favor of Mr. Koontz. 
 
 Each of the claimants presented what purported to be a certificate 
 of the i-eturn judges, showing that he had received a majority of the 
 votes, and declaring him elected. The certificate of Mr. Cofi'roth was 
 signed by four return judges, representing four of the five counties; 
 that of Mr. Koontz was signed by five persons, representing the five 
 counties, but it was conceded that only two of the persons signing this 
 certificate were regularly appointed return judges, and one of these 
 also signed the certificate of Mr. Coffroth. This condition of affairs 
 came about from the following facts: When the return judges of the 
 different counties assembled to count the votes, the majority of the 
 judges in three of the counties rejected certain military returns as 
 irregular, and made out statements of the votes not including these 
 returns. They appointed return judges to represent the county and 
 take the statement of the votes to the meeting of the district board of 
 return judges, and these return judges, with the return judge from 
 another county, were the ones who met and canvassed the votes and 
 gave the certificate to Mr. Coffroth. The minority of the return 
 judges of these three counties each selected one of their number, and 
 made out statements of the votes as counted by them. These three 
 minority return judges assembled, and were joined b}' the return judge 
 of Somerset County, who refused to sign the certificate made by the 
 majority return judges. The Fulton County I'eturn judge signed both 
 certificates. 
 
 It being admitted that the certificate showing the election of Mr. 
 Coffroth was signed by four out of the five return judges duly 
 appointed, while the majority of those signing the other certificate 
 were admitted to be without legal title, the committee found it " diffi- 
 cult to explain why this return, thus made and certified hy these 
 return judges, does not show a prima facie right in Mr. Coffroth to 
 the seat in question." But it was claimed that this return showed on 
 its face that the vote of Somerset County was not included in it. The 
 committee did not think that the voluntary refusal of the return judge 
 of this county to take part in the official canvass ought to put Mr. 
 Koontz in a better position than he would have held if the judge had 
 done his duty. The vote of Somerset County was undisputed, and if 
 it was added to the votes of the other counties, as certified by the legal 
 return judges, Mr. Coffroth would still have a majority of 93 votes on 
 the official returns of the whole district; or, if the return of the dis- 
 trict board of return judges was to be gone behind, the separate 
 county returns might be taken. Those returns made by a minority of 
 the return judges in the counties certainly had no authority in law. 
 Taking the returns made by the majority of the return judges where 
 there was a dispute and the undisputed returns of the other counties, 
 Mr. Coffroth had a majority of 88 votes in the district. It was claimed 
 by Mr. Koontz that all the I'eturn judges of a county present at a 
 inopting must sign the return, but the committee agreed with the 
 attorney-general of the State in holding that a majority could act. 
 
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FORTIETH CONGRESS, 225 
 
 stood in the way of his admission might be omitted in administering 
 the oath to Mr. Butler. The joint resolution was passed and Mr. 
 Butler was sworn in. 
 [2 Bart., 461-464.] 
 
 (13) Christy and Wimpy. 
 
 Disloyalty; r^ight of minority candidate. Neither claimant admitted. 
 
 Report by Mr. Dawes. 
 
 The election under which these claimants claimed seats was held 
 under the military government of Georgia. The certificate of Mr. 
 Christy was signed by General Meade, then in command of the dis- 
 trict by whose orders the election was held; that of Mr. Wimpy was 
 signed by Governor Bullock, who was elected at the same election. It 
 was conceded that Mr. Christy received a majority of about 100 votes, 
 but he acknowledged that he had been the editor of a newspaper 
 during the war which had supported the rebellion. He was hence 
 ineligible. 
 
 The law of Georgia provided that when the majority candidate was 
 ineligible, the candidate having the next highest number of votes 
 should be elected. Mr. Wimpy claimed the seat under this provision, 
 but the committee, without deciding whether the law in question 
 applied to Congressional elections, held that Mr. Wimpy was also 
 ineligible, having served for some time as an officer in the rebel army. 
 
 Both claimants claimed to be Union men, Mr. Christy claiming that 
 he opposed secession, and only went out with his State, and Mr. 
 Wimpy that he was forced into the army by the force of public senti- 
 ment; but the committee held that neither of them could truthfully 
 take the oath, and recommended that neither be sworn in. The case 
 was not reached in the House. 
 
 [2 Bart., 464-466.] 
 
 (14) Chaves vs. Clever. 
 
 Fraud and irregularities. Repcrt for contestant. Contestant seated. 
 
 Report by Mr. Pettis. 
 
 There were several precincts in which it was proved that alterations 
 were fraudulently made in the returns and poll books after the close 
 of the election, whereby coritestee was returned as receiving several 
 hundred votes which were never cast. In one precinct the place of 
 voting was removed to an unusual and inconvenient place, and coarse 
 and threatening language was used against persons intending to vote 
 for contestant, but the committee dianot reject the poll. Votes were 
 returned from several precincts which had no legal existence at the 
 time of the election, but were afterwards legally established bj'^ the 
 legislature. The committee rejected these votes. 
 
 Contestee sought to offset these losses by having certain irregular 
 returns, showing a majority for contestant, rejected. The committee 
 rejected most of these returns, but contestant still had a majority of 
 389 votes, and the committee unanimously recommended that he be 
 seated. The House agreed to the resolutions recommended without 
 division. 
 
 [2 Bart., 467-471.] 
 
 H. Doc. 610 15 
 
226 DIGEST OB' CONTESTED ELECTION CASES. 
 
 (15; 16) Jones w. Mann and Hunt r.v. Menakd. 
 
 Fraud; intimulntioa; iUef/al rejection of returns; election to Jill 
 niiemiGy in new district. Majority report aijainst rd I parties; minority 
 report for Mr. Hwnt. Majority report sii-sttdneel. 
 
 Majority report by Mr. Upson; minority report by Mr. Kerr. 
 
 Mr. Mann had been certified a.s elected, and tools his seat. Subse- 
 quently he died, and Messrs. Hunt and Menard both claimed to have 
 been elected to fill the vacancy. Mr. Jones claimed that he had been 
 elected instead of Mr. Mann in the first place, and that consequently 
 there was no vacancj' to fill. 
 
 Mr. Jones denied the validity of the certificate of the commanding 
 general under which Mr. Mann was admitted. The committee held 
 that the general was acting properly, under the reconstruction laws, 
 and that the House had already settled the question of the validity of 
 his certificates by admitting Mr. Mann and his colleagues upon them. 
 The only evidence of contestant against the correctness of the result 
 as certified was a very vague ex parte aflidavit, taken after the death 
 of Mr. Mann, which the committee did not consider. Contestant pro- 
 duced some evidence tending to show fraud and intimidation, particu- 
 larly with reference to colored voters, but the evidence was very 
 vague, and it was impossible from it to count up specific votes which 
 should be deducted or added sufficient to overcome more than half of 
 the returned majority of Mr. Mann. Contestant further contended 
 that Mr. Mann was not at the time of his election an inhabitant of the 
 State, and was therefore ineligible. The evidence was not clear or 
 conclusive, but the committee held that it was immaterial whether he 
 was ineligible or not, as under the principles already settled by the 
 decisions of other cases the ineligibility of the majority candidate 
 would give no title to the minority candidate. The committee were 
 therefore unanimous in the opinion that Mr. Jones was not elected, 
 and that the death of Mr. Mann had caused a vacancy-. 
 
 The majority were of the opinion that neither Mr. Hunt nor Mr. 
 Menard was elected to fill the vacancy. Mr. Menard was certified as 
 elected, but it appeared that Mr. Hunt received an overwhelming 
 majority of the vote as returned. According to the precinct returns 
 the vote was: Hunt, 18,341; Menard, 8,678. The canvassing board 
 threw out nearly all these returns, counting onh' 2,833 votes for Hunt 
 and 5,107 for Menard. The reason given for the rejection of most of 
 these returns was that they were made by the supei"visors of registra- 
 tion, but the committee found that this was stricth" in accordance with 
 the law. Whatever the validity of the election, then. Mr. INIenarddid 
 not receive a majority of the votes and was not elected. Mr. Menai'd, 
 however, objected to considering any of the allegations or testimony, 
 on the ground that no legal notice of contest was served on him. As 
 to have waited the regular time for the service of notice and answer 
 and the taking of testimony would have carried the contest until the 
 expiration of the Congress, and as all the testimony of contestant was 
 recoi'd evidence, and presented with his protest to the House, the 
 committee found that much might be said in justification of the action 
 of contestant; but the view of the election taken h\ the committee 
 rendered it unnecessary to decide this question. The committee found 
 the whole election void^ both because not held in the right district 
 
FORTIETH CONGRESS. 227 
 
 and because of violence and intimidation. The old Second district, 
 Irom which Mr. Mann was elected, was entirely comprised within the 
 parish of Orleans. Subsequent to the election the State was redis- 
 tricted, and the new Second district included part of Orleans Parish 
 not included in the old district and left out part of the parish included 
 in the old district, and it included also several outside parishes, 
 formerly part of the Third district. All the votes on which the 
 certificate of election of Mr. Menard was based were cast in these out- 
 side parishes. The committee were of the opinion that the election 
 should have been held in the district in whose representation the 
 vacancy occurred. This question, so far as the committee could find, 
 had only once before been before the House (in the case of Perkins vs. 
 Morrison, 1 Bart. , 142), and had then been decided adversely to the 
 position taken by the committee in this case, but the report of the com- 
 mittee in that case was sustained by only a small majority, and the 
 committee thought the reasoning of the minority in that case was the 
 stronger. The very objection raised in that case — that the new dis- 
 tricts might be so divided that it would be impossible to determine 
 in which district the election should be held — was exemplified in this 
 case. If it were not that this district was named the Second district, 
 the election might with as much propriety have been held in the Third 
 district. 
 
 There were some facts in connection with this election of which it 
 was proper for the House to take notice. 
 
 It is well known that in the city of New Orleans and in many other parishes of 
 Louisiana, for some weeks immediately preceding this elections, civil disturbance, 
 disorder, and crime prevailed to such extent by reason of the lawlessness of the dis- 
 loyal element prevalent there that the civil authorities were unable to put it down, 
 being prohibited by law from calling out the militia to maintain the peace or to 
 enforce the laws. 
 
 It appeared from the reports of the governor of Louisiana and the 
 military authorities that such a condition prevailed as to render a valid 
 election impossible. The extraordinary result of the election as com- 
 pared with previous elections and the known political division of the 
 voters, confirmed this conclusion. The committee therefore recom- 
 mended resolutions declaring neither Mr. Hunt nor Mr. Menard elected. 
 
 The minority of the committee agreed that Mr. Jones was not elected 
 at the fir^t election, nor Mr. Menard at the second, but contended that 
 Mr. Hunt was elected. The notice of contest given by Mr. Hunt was, 
 in the light of the numerous precedents for a liberal construction of 
 the law, legally and substantially sufficient. By the evidence of the 
 official returns presented with the notice it appeared that Mr. Hunt 
 had an overwhelming majority of the votes cast. The attempt of the 
 majority to argue the election invalid on account of violence and intimi- 
 dation was not based on anything in the record or properly before the 
 committee. 
 
 It is apparent that the majority has traveled out of the record in the consideration 
 of the case, abandoned the rights of the parties, ignored the merits of the contest, 
 disregarded the constitutional rights and the interests of the constituency, taken issue 
 with the House on its recent emphatic recognition of the validity of the election in 
 question, and rendered a verdict upon a matter not at all in controversy. 
 
 As to the propriety of holding the election in the new district, the 
 minority agreed with the decision of the House in the only previous 
 case in which the question had been raised. When the legislature 
 
228 "DIGEST OF CONTESTED ELECTION CASES, 
 
 established the new second district it repealed all previous laws on the 
 subject, and the only district having legal existence in which the elec- 
 tion could have been held was the one in which it was held. But if 
 the opposite view of the law was taken the result would be the same. 
 If all the votes outside of Orleans Parish were thrown out and the 
 entire registered vote of the only ward in New Orleans which had been 
 added to the new district deducted f I'om Mr. Hunt, and the entire reg- 
 istered vote of the only ward of the old district not included in the new 
 added to Mr. Menard, Mr. Hunt would still have a large majority. 
 The minority therefore recommended that he be seated. 
 
 The resolution of the majority declaring Mr. Menard not elected was 
 passed by a vote of 130 to 57, and that against Mr. Hunt by a vote of 
 131 to 41. The whole subject was then tabled. 
 
 [2 Bart., 471-499.] 
 
 (17) Hamilton. 
 
 Claim, for additional representation. Majority report adverse; 
 minority report favorable. JSfo action hy House. 
 
 Majority report by Mr. Shellabarger; minority report by Mr. 
 Heaton. 
 
 This report was upon a legislative rather than a judicial matter. 
 Kinder the law Tennessee was only entitled to eight Representatives, 
 and that number had already been admitted. Mr. Hamilton, who was 
 elected from the State at large as a ninth Representative, acknowledged 
 that he had no claim under the existing law, but contended that a law 
 ought to be passed giving Tennessee an additional Representative. 
 The apportionment of eight Representatives to Tennessee had been 
 made on the basis of her free population and three-fifths of her slaves. 
 By the voluntary emancipation and enfranchisement of the slaves the 
 State had added to her representative population two-fifths of their 
 number — more than sufficient to make one representative ratio. 
 
 The majority of the committee made an adverse report. The request 
 was for Tennessee alone, and based on the especial consideration to 
 which her praiseworthy conduct was supposed to entitle her. But 
 under the Constitution Representatives were to be apportioned accord- 
 ing to the nAimber of inhabitants, and not according to any Congres- 
 sional estimate of their merits. The only discretion left to Congress 
 was in fixing the number which should constitute the basis of the appor- 
 tionment and in adjusting fractional ratios. Ail the instances of an 
 apparent exercise of discretion by Congress came within this limit. 
 Congress had no right to apportion an additional Representative to 
 Tennessee without also adding to the representation of other States 
 whose representative population had been similarly increased. This 
 had not been asked for, and was not the question before tlie committee. 
 The case was not altered by the adoption of the fourteenth amend- 
 ment, for that was not a provision for increasing the absolute repre- 
 sentation of States, but for increasing their relative representation bv 
 decreasing that of other States. The case of Tennessee was not essen- 
 tially different from that of other States, for emancipation was indi- 
 rectly the result of the war in it as well as in them; and the colored 
 people of the other States, who had suffered for two years longer the 
 wrong of slavery, were entitled to no less consideration than those of 
 Tennessee. 
 
FOBTIETH CONGRESS. 229 
 
 The committee therefore reeomnieiided that the chuuiiiiit be not 
 admitted. 
 
 The minority held that Tennessee was in justice entitled to an addi- 
 tional Representative. Many precedents were cited in which the House 
 had exercised its own discretion in apportioning Representatives not 
 in strict accordance with the census. 
 
 In a word, these acts establish the general proposition that Congress has complete 
 jurisdiction to adjust the representative numbers of the House, and has repeatedly 
 and constantly exercised it at discretion, according to the varied equity of each par- 
 ticular case. 
 
 The equities of this case required the additional representation. The 
 fourteenth amendment was in effect a declaration to the States that if 
 they enfranchised their former slaves they should be represented 
 accordingly, otherwise their representation should be reduced. 
 Under this the request of Tennessee was a request for an absolute con- 
 stitutional right. The fact that she happened to be the first State to 
 claim this right should not be allowed to prejudice the right. The 
 minority therefore recommended the passage of a bill appomoning to 
 Tennessee an additional Representative, to be elected from the State at 
 large unless the legislature should otherwise provide. 
 
 There was no action by Congress. 
 
 [2 Bart, 499-516.] ' 
 
 (18) Casement. 
 
 Delegate from Territory Twt yet organized not admiitted. 
 
 Report by Mr. Cook. 
 
 Mr. Casement claimed to have been elected a Delegate from Wyo- 
 ming. TheTerritory was not yet organized. The election under which 
 he claimed the seat was held in 1867. A law for the organization of 
 Wyoming was not passed until 1868, and at the date of the report it 
 had not yet gone into effect. The election laws of Dakota were still in 
 force in the proposed Territory. The election at which Mr. Casement 
 was voted for was called by a mass meeting, and was not held in 
 accordance with the proposed organic law or any other law. Any 
 principle on which he could be admitted would also justify the admis 
 sion or a Delegate from Alaska, if a mass meeting there should choose 
 one. The committee recommended that the claimant be not admitted. 
 
 There was no action by the House. 
 
 [iJBari., 516-618.] 
 
230 DIGEST OF CONTESTED ELECTION CASES. 
 
 FOETY-FIRST CONGRESS, 1869-1871. 
 
 Co'iii'iiiitUc on Kleetvini^. 
 
 Mr. Paine, Wisconsin. Mr. Stevenson, Ohio. 
 
 Churchill, New York. Burdett, Missouri. 
 
 Heaton, North Carolina. Burr, Illinois. 
 
 Cessna, Pennsylvania. Randall, Pennsylvania. 
 
 Mr. Butler, Tennessee. 
 
 At the second session the following were added: 
 
 Mr. Brooks, Massachusetts. Mr. Kerr, Indiana. 
 
 Dox, Alabama. McCrary, Iowa. 
 
 Hale, Maine. Potter, New York. 
 
 Owing to the large number of contests the House authorized the 
 chairman of the committee to appoint subcommittees of 3 members 
 each and assign cases to them; said subcommittees having power to 
 report the cases assigned directly to the House. This assignment was 
 made at the beginning of the second session, as follows: 
 
 To Messrs. Paine, Heaton, and Potter: Belden vs. Bradfor^d, Colo- 
 rado; Cameron vs. Boots, Arkansas; Hindu vs. Slierrod, Alabama; 
 Orafton vs. Conner, Texas. 
 
 To Messrs. Churchill, Butler, and Burr: Switzler vs. Dyer, Missouri; 
 •Zeigler ys. Rice, Kentucky; Shields ds. Van Horn, Missouri; Whittle- 
 sey ■?'«. McKenzie, Virginia. 
 
 To Messrs. Cessna, Randall, and Hale: Taylor ;w. Reading, Penn- 
 sylvania. Eggleston vs. Strader, Ohio. Reid vs. Julian, Indiana. 
 Tloge vs. Beed {final case), South Carolina. Wallace vs. Simpson, 
 South Carolina. 
 
 To Messrs. Stevenson, Burdett, and Kerr: Sypher vs. St. Martin, 
 Louisiana. Hunt vs. Sheldon, Louisiana. Darrall vs. Bailey, Louisi- 
 ana. Newsham vs. Rj'an, Louisiana. Morey rs. ^NlcCranie, Louisiana. 
 
 To Messrs. Brooks, Dox, and McCrary: Sheaf e vs. Tillman, Ten- 
 nessee. Leftwich vs. Smith, Tennessee. Boyden rs. Shober, North 
 Carolina. Tucker vs. Booker, Virginia. Barnes vs. Adams. Ken- 
 tucky. 
 
 The cases reported at the first session and the cases of Segar and 
 Rodgers are not included in these assignments. The cases italicised 
 above, it will be noticed, were never reported to the House. Follow- 
 ing is a list of the cases as i-epoi'ted: 
 
 Cases. 
 
 (1) Henry D. Foster vs. John Covode {2)rh/ia facte case), Pennsyl- 
 vania. 
 
 (2) Caleb S. Hunt vs. Lionel Allen Sheldon (j)rima facie case), 
 LoaiKiana. 
 
 (3) S. L. Hoge vs. J. P. Reed {prima facie case), South Carolina. 
 
 (4) A. S. Wallace cs. William D. Simpson {^yrinta facie case), South 
 Cavtilina. 
 
 (5) Leonard M3^ers v.v. John MoflFett, Pennsylvania. 
 (0) Geonjia I'asos. 
 
POETY-FIRST COTSTGRESS. 231 
 
 (7) John Covode vs. Henry D. Foster (final case), PciDisi/lmiiJd.. 
 
 (8) Charles H. Van Wyck" c.y. George W. Greene, N'ean Yorl. 
 
 (9) Caleb N. Taylor vs. John R. Reading, Pennsylvania. 
 
 (10) J. Hale Sypher vs. Louis St. Martin, Louisiana. 
 
 (11) Caleb S. Hunt vs. Lionel Allen Sheldon (final case), Louisiana. 
 
 (12) Frank Morey vs. George W. McCranie, Loui,s!.ana. 
 
 (13) J. P. Newshiini vs. Michael Ryan, Louisiana. 
 
 (14) A. S. Wallace vs. WilliamD. Simpson (final case), South Car ulina. 
 
 (15) Chacles Whittlesey yw. Lewis McKenzie, Wr<jinia. 
 
 (16) Chester B. Darrall vs. Adolphe Bailey, Louisiana. 
 
 (17) Sidney M. Barnes os. George M. Adams, Kentucky. 
 
 (18) George Tucker *'«. George W. Booker, 7«V(/ //;;'«. 
 
 (19) William F. Switzler vs. David P. Dyer, Missouri. 
 
 (20) Joseph Segar, Virginia. 
 
 (21) John S. Reid vs. George W. Julian, Lndiana. 
 
 (22) John L. Zeigler rs. John M. Rice, Kentucky. 
 
 (23) Benjamin Eggleston vs. Peter W. Strader, Ohio. 
 
 (24) Nathaniel Boyden vs. Francis E. Shober, North Carolina. 
 (26) C. A. Sheafe vs. Lewis Tillman, Tennessee. 
 
 (26) James Shields vs. Robert T. Van Horn, Missouri. 
 
 (27) John B. Rodgers, Tennessee. 
 
 (1) Foster vs. Covode {prima facie case). 
 
 No certificate or proclamation of election. Majority report for Covode. 
 Minority reports that ')io pyrima facie title show7i. Neither chmnant 
 admitted. 
 
 Majority report by Mr. Cessna; minority reports by Mr. Paine and 
 Mr. Burr. 
 
 The governor of Pennsylvania in his proclamation declaring who 
 were elected to Congress refused to declare either candidate from this 
 district elected. He afterwards transmitted to the Clerk of the House 
 certain affidavits, and in the letter of transmission said that these affi- 
 davits "indicate the election of Hon. John Covode." The signature 
 of the governor and the authenticity of the affidavits were certified })y 
 the secretary of the commonwealth. The House referred the procla- 
 mation of the governor, his letter, and the affidavits transmitted to 
 the committee to report who, according to these papers, was prima 
 facie entitled to the seat. 
 
 The committee reported that the proclamation of the governor was 
 not evidence of any title in either claimant from this district. But the 
 House had decided in the former case of Butler vs. Lehman that the gov- 
 ernor of Pennsylvania had the right to go behind fraudulent returns 
 and decide who was elected. As the proclamation of the go\'ernor 
 was not required to be in any prescribed form it was merely notice 
 of his decision. The letter of the governor to the Clerk of the House 
 seemed to show the election of Mr. Covode, and having been made 
 evidence by the resolution of the House referring the papers it estab- 
 lished his prima facie right to the seat. If, on a jytnina facie ciise, it 
 was proper to review the action of the governor, it should be said that 
 the affidavits transmitted sustained his decision and showed frauds 
 that no one could defend. The committee therefore recommended 
 that Mr. Covode be sworn in pending the contest oh the merits. 
 
232 DIGEST OF CONTESTED ELECTJON CASES. 
 
 The minority held that of the three documents referred only one, 
 the proclamation of the governor, was legal evidence, and that showed 
 no one elected from this district. The letter to the Clerk of the House 
 was not an act which the governor was required or authorized by law 
 to do, and was wholly unofficial. It was a mere j)rivate letter, of no 
 more value than any other private letter, and it only incidentally 
 expressed the opinion that the affidavits indicated the election of 
 Covode. It lacked the great seal of the State, and the attestation of 
 the secretary could only establish the genuineness of the governor's 
 signature. The affidavits transmitted were ex parte, not taken in pur- 
 suance of any law and wholly inadmissible. The mere fact of refer- 
 ence by the House did not decide the question of the competence of the 
 papers as evidence. " That question is always to be decided by the 
 committee and by the House." The minority therefore recommended 
 a resolution declaring that on the papers referred no one was shown 
 to have & prima facie right to the seat. 
 
 Messrs. Burr and Randall, who agreed to the minority report, pre- 
 sented an additional minority report, arguing the same points more at 
 length, and discussing the case of Butler vs. Lehman, claimed to be a 
 precedent. In that case the governor did not go behind any returns 
 to investigate questions of illegal and fraudulent voting, but he simply 
 refused to receive as correct one return which had been declared by 
 the courts of the State to be a forgery. This was in no way an analogous 
 case. The affidavits transmitted were not competent evidence for the 
 consideration either of the House or the governor, but if they were 
 taken as absolutely true they would only show that some votes had 
 been rejected which should have been received and some received which 
 should have been rejected. As there were no returns before the com- 
 mittee there was no basis for the readjustment of these votes. 
 
 The House did not admit Covode, but recommitted the whole case for 
 investigation on the merits. 
 
 [2 Bart., 519-530.] 
 
 (2) Hunt vs. Sheldon {prima facie case). 
 
 Manority report for SJieldon, mArwrity report fw Hunt. Sheldon 
 seated. 
 
 Majority report by Mr. Stevenson; minority report by Mr. Burr. 
 
 Mr. Sheldon had the certificate of election, but the certificate, as well 
 as many other papers in this and other Louisiana cases, were referred 
 to the committee with instructions to inquire into the validity of the 
 election and the eligibility of the claimants. The committee reserved 
 its decision upon the force to be given to the certificate of election 
 above. Taking the returns, except those rejected by the State can- 
 vassing board, Mr. Sheldon had a majority of the votes. Whatever 
 might be the result in a contest involving the validity of these returns 
 and the sufficiency of the reasons for rejecting certain parishes, the 
 returns were prima facie evidence of the right of contestee to be sworn 
 in, provided the election was a valid one. 
 
 By the official reports of a committee of the legislature of Louisiana, 
 referred to the committee, it appeared that in the parishes of Orleans 
 and Jefferson a state of riot and violence prevailed before and at the 
 election. In these two parishes 232 Republicans were killed or mal- 
 treated. The violence prevented nearly one-half the registered vot.ftri=i 
 
FORTY-FIRST CONGRESS. 233 
 
 froui voting. These voters, il' free to vote, would undoubtedly have 
 voted against that disloyal party which prevented them from voting, 
 in which case the Republican candidate would have received about 
 1,500 majority in the whole district. As the election in the other 
 parishes was peaceable and a full vote was cast, it would be unjust to 
 declare the whole election void. If the election was 'allowed to stand 
 on the result in the peaceable parishes, Mr. Sheldon would have a 
 larger majority than he had on the returns, as counted by the can- 
 vassing board. The committee therefore recommended that he be 
 sworn in, pending the contest. 
 
 The minority dissented from this conclusion. Mr. Sheldon had a 
 certificate of election, which, if not rebutted would ^aQ prima facie evi- 
 dence of his title, but it was rebutted by a certificate of facts, issued 
 to Mr. Hunt by the same board and of equal authority, showing that 
 he had received an overwhelming majority of the votes. This certifi- 
 cate of facts showed also that the returns of the parish of Orleans 
 were rejected because returned by the supervisors of registration, 
 although an examination of the law showed that this is just the way 
 they should have been returned. Three other parishes, casting with 
 Orleans some 20,000 votes, three-fourths of the votes of the district, 
 were rejected for slight informalities, and the certificate of election 
 issued on the vote of three small parishes. There could be no justifi- 
 cation for the rejection of these returns, and on the face of the facts 
 shown by the two certificates, Mr. Hunt had much the better jprvma 
 facie title. 
 
 The alleged violence in the parish of Orleans was not a question 
 brought before the committee by the parties, and was not properly 
 before them in a prima facie case. There was no legal evidence of 
 the facts alleged, and the report of the legislative committee, on which 
 the statements of the majority seemed to be based, was notoriously 
 and transparently partisan. 
 
 This sort of logic, or law, when indulged in by a committee charged with the del- 
 icate and important duty of deciding a great question of the right to representation, 
 can not be fitly characterized without appearing to violate the rules of parliamentary 
 courtesy. In our judgment it deserves to be signally rebuked by the House. 
 
 The minority recommended that the name of Mr. Hunt be substituted 
 for that of Mr. Sheldon in the resolutions recommended by the 
 majority. 
 
 The recommendation of the majority was agreed to, and Mr. Sheldon 
 seated, by a vote of 85 to 38. 
 
 [2 Bart, 530-640. J 
 
 (3) HoGE vs. Reed {prima facie case). 
 
 Conflicting certificates issued. Majority report for contestant; 
 minority report against prima facie right of either pa/rty. Contestant 
 seated. 
 
 Majority rejjort by Mr. Cessna; minority report by Mr. Burr. 
 
 The canvassing board in South Carolina consisted of four of the 
 State officers, any three to have power to act. Mr. Reed presented a 
 certificate of election in due form, dated December 2, 1868, certifying 
 that he had received a majority of the votes and was elected, and signed 
 by three of the canvassing board. Mr. Hoge presented a certificate 
 of election, dated the same day, signed by all four members of the 
 
234 DIGEST OF CONTESTED ELECTION CASES. 
 
 fiinvasaing T)oard, certifying that he had reoei\'ed a majority of the 
 le(ju.l votes, and was elected. lie also presented a "statement" signed 
 by all the members of the canvassing board, explaining their action, 
 and a statement from one of the members of the board, withdrawing 
 his signature from the certificate of Mr Reed. Under a former reso- 
 lution of the House the committee had already reported against Mr. 
 Reed's right to be sworn in, on the ground of disloyalty, and had been 
 sustained by the House, but in considering the claim of Mr. _Hoge it 
 was necessary to inquire whether it was negatived by anything that 
 would amount to a better title in Mr. Reed if he were eligible. The 
 committee found that either certificate standing alone would be suffi- 
 cient prima facie evidence of title, but the witndrawal of one of the 
 signatures from the certificate of Mr. Reed left it without the requisite 
 number of signatures. The right to withdraw a signature was plain, 
 and it having been exercised, the certificate of Mr. Reed was invali- 
 dated, and that of Mr. Hoge was left. This entitled him prima facie 
 to the seat, and the committee recommended that he be sworn in. 
 
 The minority held that the prim a facie right on the certificates was 
 with Mr. Reed, but as he had admitted his ineligibility under the four- 
 teenth amendment, his claim was in abej'ance unless an act removing 
 his disabilities should be passed. But the title that he would have had 
 but for his ineligibility negatived the right of contestant. Under the 
 law the canvassing board were to declare the result from the state- 
 ments sent them from the county canvassing boards, and give the cer- 
 tificate of election to the candidate shown by them to have received 
 the majority of the votes. Mr. Reed's certificate showed on its face 
 that he had received a majority of the votes, and was hence in accord- 
 ance with law. Mr. Hoge's certificate stated that he had received a 
 majority of the legal votes, which was not what the law required the 
 canvassers to certify. The certificate was dated December 2, 1868, 
 but it was evident that it was issued much later. The "statement" 
 of the canvassing board showed that at the time it was written the 
 board had decided that Mr. Reed had the prima facie title, and it only 
 expressed the judgment of the board that he Mas ineligible, and that 
 in consequence Mr. Hoge, who was expressh' declared to have received 
 the next highest niynber of votes, ought to be seated on the final deter- 
 mination of the case. The wording of this statement precluded the 
 idea that any certificate had been issued to Hoge when it was written. 
 The statement was, curiously, not dated, but it referred to a certain 
 affidavit which was dated December 8. The notice of contest of Mr. 
 Hoge was served January 2, 1869, a month after the date of his cer- 
 tificate. He would never have assumed the attitude of contestant if 
 he had then had a certificate of election. Mr. Hoge's certificate was 
 therefore not valid. That of Mr. Reed was in all respects valid, unless 
 the right to withdraw a signature was conceded. The minority held 
 that if this right existed at all there must be some limit to the time 
 within which it could be exercised. That limit was either the last of 
 the five days on which the board were permitted to meet or it was the 
 date of the performance of the next official act based on the former 
 act. It was evident that this withdrawal did not take place within 
 either of these limits. The minority recommended that neither claim- 
 ant be sworn in. 
 
 The House sustained the report. 
 
 [2 Bart., 540-551.] 
 
forty -first congress . 235 
 
 (4) Wallace ■/:.■<. Simpson. 
 
 Samie facts as preeedimj case. House stbstaived vrinority, and recom- 
 mitted the case for investigation on the merits. 
 
 Majority report by Mr. Burdett; minority report by Mr. Randall. 
 
 The facts in this case were precisely the same as in the preceding 
 case of Hoge vs. Reed. The majority report covered the same ground 
 as in that case, but somewhat more in detail; the minority report was 
 almost word for word the same as in the previous case. In the 
 majority report in this case the statement is made that the majority of 
 the committee were of the opinion that the ineligibility of a majority 
 candidate ought to involve the election of the candidate receiving the 
 next highest number of votes, but on this question they yielded to 
 the authority of the precedents of former Congresses. 
 
 The House, by a vote of 103 to 73, adopted the resolutions presented 
 by the mimm^ity, giving the seat to neither claimant on his prima 
 facie title, and then by a unanimous vote recommitted the whole case 
 for investigation on the merits. 
 
 [2 Bart., 552-564.] 
 
 (5) Myers vs. Mopfett. 
 
 Fraud; illegal votes. Majority report for contestant; ininority report 
 for contestee. Contestant seated. 
 
 Majority report by Mr. Stevenson; minority report by Mr. Randall. 
 
 Contestant charged the casting of illegal votes for contestee sufficient 
 in mmiber to overcome the returned majority, and also that two pre- 
 cincts should be thrown out on accountof the fraudulent reception by the 
 officers of election of large numbers of unassessed (unregistered) votes 
 without requiring of the voters the proof of qualification prescribed 
 by the law. Contestee made countercharges of illegal votes, and asked 
 that one precinct be thrown out because of the violent ejection of the 
 election officers from the polling place and the resultant failure of 
 many voters to vote. The committee did not examine the evidence in 
 regard to individual illegal votes, but took contestee's own statement, 
 and counting against him the votes substantially conceded in his brief, 
 and counting against contestant all the votes claimed by contestee, they 
 found even then a majority for contestant without the rejection of any 
 poll. But there were two polls which ought to be rejected. At both 
 of these polls a very large number of votes were received from persons 
 whose names were not on the assessment lists, without requiring of them 
 the affidavits and vouchers required by law from such persons. It was 
 made the duty of the judges of election, under very heavy penalties, 
 to require this proof in all cases from unassessed persons, whether 
 challenged or not, and the fact that in so large a number of cases this 
 law was violated by the judges was evidence of fraud or collusion. 
 This proof of fraud was strengthened by the failure of contestee to 
 prove that any of these persons were in fact residents, and also in one 
 precinct by the fact that the same election officers, at another election 
 only a month later, had been guilty of most flagrant frauds in returning 
 a large number of votes never cast by anyone. There was no evidence 
 how most of the votes cast at this election by unregistered pei'sous were 
 
286 DIGEST Ol' CONTESTED ELECTION CASES. 
 
 cast, iind the only i-o.medy I'or the fraud was the rejection of the whole 
 poll. Rejecting these two precincts, the majority of contestant was 
 largely increased. 
 
 There was no sufficient ground for rejecting the poll attacked by 
 coiitestee. While there were some disturbances, it was in evidence 
 that this was always a turbulent poll, and this election was quieter than 
 usual. If the election officer who was ejected by the police was the 
 duly appointed judge, it would be fatal to the election. But the com- 
 mittee found that under the law he was not the judge authorized to act 
 at this poll, and that the law had been read to him, but he refused to 
 leave, and it was necessary to call on the police to remove him. There 
 may have been some partisans of contestee who did not vote on account 
 of this occurrence, but they were pei'fectly free to vote, and were 
 encouraged to do so and furnished with their own party ticket to vote. 
 Many of them did vote, and if a few did not, their voluntary refusal 
 was evidently in the hope of procuring the rejection of the poll. 
 
 Contestant having a majority in any way of looking at the case, the 
 committee recommended that he be seated. 
 
 The minority reported for contestee. Eejecting the individual Illegal 
 votes so far as substantially agreed on by the parties, and also cor- 
 recting some errors in casting up the returns which the majority had 
 held not to be sufficiently proved, contestee still had a majority of the 
 legal votes. There was no proof of fraud in the reception of unregis- 
 tered votes, and the fact that the voters were not challenged indicated 
 that they were actual residents, though not assessed. Where there 
 was proof for whom their votes were cast they might be deducted, but 
 where there was no proof they were as likely to have been cast for one 
 candidate as for the other, and contestee ought not to be made to suffer 
 by the rejection of polls where he received large majorities and where 
 the election was proved by the testimony of the election officers to 
 have been perfectly fair. The precinct asked to be rejected by con- 
 testee ought to be rejected. The polls were in the possession of a 
 mob, the whole election was marked by rioting, and one of the elec- 
 tion officers was ejected by violence. This would largely increase the 
 majority of contestee, and the minority recommended resolutions 
 declaring him entitled to his seat. 
 
 A large part of both reports was taken up with discussions of cer- 
 tain naturalization proceedings before judges of the supreme court 
 sitting at nisiprlus, but as no rulings were made affecting the result, 
 and no legal principles announced, the arguments need not be outlined. 
 
 The resolutions of the majority, giving the seat to contestant, were 
 passed by a vote of 113 to 38. 
 
 [2 Bart., 564-595.] 
 
 (6) Georgia Cases. 
 
 Seats clamied m two Congresses hy mrtue of one election. Claimants 
 not admitted. 
 
 Report by Mr. Churchill. 
 
 Under an oi'dinance of the constitutional convention an election for 
 Representatives in Congress was held in Georgia, beginning April 20, 
 1868. Neither the ballots voted for them nor the certificates of elec- 
 tion specified to which Congress they were elected. Congress passed 
 a law declaring that the State of Georgia should be entitled to repre- 
 sentation as soon as certain fundamental conditions were complied with. 
 
FORTY-FIRST CONGRESS. 237 
 
 These conditions were complied with on July 8, 1868, and soon after- 
 wards the persons elected at the April election presented their creden- 
 tials, and were admitted to seats in the Fortieth Congress. At the 
 beginning of the Forty-first- Congress the same persons presented 
 themselves with new certificates of election, based on the same election 
 of April 20, 1868. The committee held that the ofiice of Representa- 
 tive in the Forty-first Congress was entirely distinct from that of Rep- 
 resentative in the Fortieth Congress, and if these persons were elected 
 to the latter oflSce they could not, under the same election, claim the 
 former. By accepting seats in the Fortieth Congress they had estopped 
 themselves from claiming that they were not elected to it, and it was 
 clear that under the law the}' were rightfully elected to the Fortieth 
 Congress. The law implied that Georgia should have the right to 
 immediate representation, and as at the time that law became efiective 
 the Foi'tieth Congress was in session, these gentlemen who had been 
 elected to represent the State when it should become entitled to repre- 
 sentation properly applied for and were properly granted seats in that 
 Congress. The committee therefore recommended that they be not 
 admitted to the Forty-first Congress. The House agreed without 
 division. 
 
 [2 Bart., 696-601.] 
 
 (7) CovoDE m. Foster. 
 
 Illegal votes,' fraud ; majority report for contestant; minority report 
 for contestee. Contestant seated. 
 
 Majority report by Mr. Churchill ; minority report by Mr. Randall. 
 
 On ihe prima facie contest previously decided by the House neither 
 party haa been admitted, and the case had been recommitted to the 
 committee for investigation on the merits. 
 
 On the face of the returns contestee had a majority of 41 votes. 
 Adding to his vote certain votes illegally rejected by the election 
 officers, and deducting from contestant the illegal votes proved against 
 him, contestee would have a majority of 64 votes. To overcome this 
 majority contestant claimed that two whole precincts should be 
 excluded, and that a large number of illegal votes should be deducted 
 from contestee. 
 
 The committee excluded the votes of the Dunbar and Youngstown 
 precincts. At Dunbar there was difficulty in finding the ballot boxes, 
 and until about 11 o'clock the ballots were deposited in the hat of one 
 of the inspectors. The election officers had whisky in the room, and 
 during the day consumed about half a gallon. The one who received 
 the ballots and had charge of the hat was drunk and disorderly, put- 
 ting his head out of the window and cursing and shouting. Several 
 persons not officers of election were in the room all day, some of them 
 intoxicated. During the time that the ballots were deposited in a hat 
 these persons were so situated that they could easily have altered the 
 contents of the hat. No attention was paid to challenges. Persons of 
 foreign birth, claiming to be naturalized, were allowed to vote on 
 showing papers of any sort without examination of the papers. A 
 company of thirty or forty persons of foreign birth, mostly strangers, 
 was marched up in military order to the polls and voted, the company 
 being so placed that it was difficult for others to approach the polls and 
 challenge the votes. No attention was paid to such challenges as were 
 
238 DIGEST OP CONTESTED ELECTION CASES. 
 
 made. At the close of the polls one of the clerks was taken sick, and 
 was replaced by an unsworn outsider during the count. There were 
 6 more ballots than names on the poll list. From all these circum- 
 stances the committee concluded that the return of this precinct was 
 too unreliable to be received, and neither party having made any other 
 proof of the votes the whole poll was rejected. 
 
 The Youngstown district was also rejected. The assessor was shown 
 to have placed the names of a number of persons on his "additional 
 lists" without personal application as required by law. He failed to 
 furnish the election officers with a certified copy of the list, and they 
 used the list which had been posted up in a barroom for a month. 
 The persons who were registered without personal application voted, 
 and the election officers refused to pay any attention to challenges of 
 these or other votes. The assessment list used by the officers disap- 
 peared after the election and had not since been seen. Persons chal- 
 lenged as not being registered were allowed to vote without making 
 the proof required by law. The board were all Democrats, and no 
 Democratic vote was refused by them. 
 
 Besides these two precincts the committee rejected the votes of a 
 number of paupers who voted for contestee in the poorhouse precinct, 
 though they had been sent there from other parts of the count}', and 
 of a number of nonresidents, minors, lunatics, and other disqualified 
 persons. Thej- added to the vote of contestant a number of votes 
 offered for him and illegally rejected, including one vote offered by a 
 voter who was deterred from voting it by threats of violence made in 
 the presence of the election officers and not objected to Ijy them. 
 Whether the case was decided on these illegal votes alone, or either or 
 both the polls in dispute were rejected, contestant was elected, and 
 the committee recommended that he be seated. 
 
 The minority held that neither of these precincts should be rejected, 
 and also differed as to the number of illegal votes. Each of the objec- 
 tions to the Dunbar precinct — the use of a hat for a ballot box, the 
 intoxication of the judges, the excess of votes, the substitution of an 
 unsworn outsider to aid in the count, the presence of outsiders in the 
 room, etc. — was separately found to be insufficient to vitiate the elec- 
 tion and combined they could be of no more effect. No poll ought to 
 be rejected unless it was absolutely impossible to ascertain the true 
 ^result, and the true method was not to reject the return and leave 
 each party to prove the legal votes, but to require each party to 
 prove the illegal votes and deduct these. The vote of the Youngs- 
 town precinct ought not to be rejected because of the failure of the 
 assessor to perform one portion of his duty. He had performed all 
 of it except the furnishing of a certified copy of the list to the judges, 
 and they had rendered this irregularity immaterial by using the orig- 
 inal cop3' instead. 
 
 The minority entered into a detailed anah'sis of the individual illegal 
 votes, and found a larger number cast for contestant and a smaller 
 number for contestee than were found by the majority. The pauper 
 votes the minority did not reject. Making the deductions and addi- 
 tions according to the findings of the minority would leave contestee 
 with a majorit}' of 54 votes, and they recommended that he be seated. 
 
 Th(> House agi-oed with the majority, and seated the contestant )\v a 
 vote of 12.5 to 45. 
 
 [2 Bart., 600-631.] 
 
forty-first congress. 239 
 
 (8.) Van Wyck vs. Greene. 
 
 jFraudulent tiaturalization,. Majority report for contestant; minority 
 report for contestee. Contestant seated. 
 
 Majority report by Mr. Butler; minority report by Mr. Burr. 
 
 Both parties in this case charged the procurement of fraudulent 
 naturalization papers, and contestee charged bribery. The committee 
 found that a few irregularly naturalized persons voted for contestant, 
 but that nearly all the fraudulent naturalization was in the interest of 
 contestee. In the county of Orange, during the three months preced- 
 ing the election, over 800 persons were naturalized. The average 
 number in previous years was about 50. Naturalization papers were 
 issued here and elsewhere by the clerk of the court without any 
 examination of the applicant before the court. In a number of cases 
 papers were issued by special deputy clerks, and in at least one case 
 they were issued in a room removed from the court room. The officers 
 conducting this naturalization were partisans of contestee and working 
 in his interest. It might be fair to infer that all these naturalizations 
 were illegal, and that all the persons so naturalized voted for contestee. 
 The deduction of their votes on this basis would leave a majority for 
 contestant. But the committee preferred to deduct only those shown 
 to have voted illegally for contestee. Deductions were thus made in 
 a number of precincts, but it is not very plain from the report upon 
 what evidence the fact that this number of persons voted for contestee 
 is established, or whether there was any proof of the illegality of the 
 naturalization papers, except the fact that they were issued during a 
 certain year. Deducting all these votes from contestee, and deducting 
 from contestant such illegal votes as were proved against him, con- 
 testant was shown to have a majority of 139 votes. There were two 
 precincts where the irregularities and the partisan reception of known 
 fraudulent votes were of such a character as to justify the exclusion 
 of the entire polls. This would largely increase contestant's majority, 
 but as it was not asked for in the notice of contest the committee did 
 not recommend that it be done. 
 
 The committee recommended resolutions declaring contestant 
 elected. 
 
 The minority did not agree to the conclusions of the committee, and 
 attacked the fairness of the statements of fact on which they were 
 based. It was clearly shown that persons had been taken to New York 
 and fraudulent naturalization papers procured for them in the inter- 
 ests of contestant, and that many fraudulent votes were cast for him. 
 It was also proved that bribery was indulged in to a large extent in 
 his behalf. No such proof was made against contestee. The naturali- 
 zation papers objected to were all issued in the presence of the court, 
 and nearly all the persons objected to as voting on them were shown 
 to be entitled to naturalization, whether these papers were regular or 
 not. The large number of naturalizations was accounted for by the 
 fact that this was the first Presidential election since the war, and that 
 during the war persons entitled to naturalization had not procured 
 papers for fear of the draft. The regularity of the papers signed by 
 deputy clerks did not need to be passed upon, as these papers were 
 uniformly rejected by the election officers throughout the district. 
 Persons voting on the other recently issued naturalization papers 
 
240 DIGEST OF CONTESTED ELECTION CASES. 
 
 which were* regular in form were challenged and required to make 
 proof of their right to vote. The testimony on which the majority 
 sought to estimate the number of such persons voting for contestee 
 was mostly vague guesses or hearsay. The majority evidently had 
 not read the cross-examination of the witnesses cited by them. There 
 was nothing against the validity of any of the papers objected to 
 except that they were "issued last fall." The minority found that 
 the title of contestee had been in no way overthrown and recom- 
 mended that he retain the seat. 
 
 The House agreed with the majority, and gave the seat to contest- 
 ant by a vote of 118 to 61. 
 
 [2 Bart., 631-660.] 
 
 (9) Taylor vs. Reading. 
 
 Mistakes; irregularities; illegal votes. Majority report for contest- 
 ant; minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Cessna; minority report by Mr. Randall. 
 
 The determination of this case depended on a large number of 
 questions of fact, each involving very few votes. Few of them 
 involve general questions of importance. On the face of the returns 
 contestee had a majority of 41 votes. By correcting various mis- 
 takes, mostly conceded by contestant, and allowing certain rejected 
 votes, this majority was increased to 144. From this majority it was 
 conceded that 58 individual illegal votes should be deducted, and the 
 committee deducted 51 more. On most of these illegal votes the deci- 
 sion of the committee was unanimous. There were differences in regard 
 to certain soldier and pauper votes. The soldiers had been for years 
 stationed in the precinct; someof them had resided there beforeenlisting, 
 and some had reenlisted from there, though their former enlistment 
 was from other places. The minority allowed all these votes, the 
 majority deducted those of a few of the soldiers who had come from 
 other places, and who had not reenlisted. The pauper votes were con- 
 ceded by contestee as illegal oh account of nonresidence, and were 
 deducted by the committee, but the minority held that an official opin- 
 ion of Attorney-General Brewster, given since the date of contestee's 
 concession, and sustaining the legality of such votes, authorized the 
 committee to count them. There were conflicts between the returns 
 and the tally sheets in some cases. The committee examined all the 
 circumstances, and where mistake in the returns was apparent it was 
 corrected, but the conflict with the tally sheet alone was not considered 
 sufficient to show mistake in the returns. The minority held that the 
 tally sheet was the original record of the count, and should prevail. 
 There were some precincts in which contestant proved that more votes 
 were cast for him than were returned for him. There were indications 
 of fraud in these cases which might justify throwing out the whole 
 vote, but the committee preferred merely to correct the vote by adding 
 to contestant and deducting from contestee the votes shown to have 
 been wrongfully i-eturned. There was a large number of votes cast 
 for contestee in one ward by persons who were not assessed and who 
 did not make at the polls the proof required by law. All these were 
 deducted by the committee. The minority held us to some of them 
 that the proof that they were not assessed under similar names, or that 
 
FOKTY-ITEST OONGKESS". 241 
 
 they voted for contestee, was insufficient. The points of difference 
 between the majority and minority, except as above indicated, were 
 confined to questions of the weight of evidence in regard to individual 
 votes. The majority found that contestant had a majority of 72 votes; 
 the minority found that contestee had a majority of 28 votes. The 
 House sustained the recommendation of the majority, and seated con- 
 testant by a vote of 114 to 45. 
 [2 Bart., 661-698. j 
 
 (10) Sy'phee vs. St. Martin. 
 
 Violence and intimidation. Report for contestant. Seat declared 
 vacant. 
 
 Report by Mr. Stevenson. 
 
 This case is a latei' one than that of Hunt vs. Sheldon, and, the facts 
 being substantially the same, they are not given fully in the report in 
 this case.' The refusal of the House to sustain the committee in this 
 case was in part a reversal of the decision in the former case. 
 
 This district was composed in part of certain wards of the city of 
 New Orleans and neighboring parishes and in part of country parishes. 
 The election in the country parishes was peaceable, and contestant 
 received a majority of the votes cast in them. At former elections 
 the Republican candidates had received a majority of the votes in the 
 rest of the district also, but at this election, owing to the Kuklux 
 outrages, only 84 Republican votes were cast in the part of the dis- 
 trict covered by the operations of this organization. Following the 
 precedent of Hunt vs. Sheldon, the committee threw out the violent 
 parishes, and as contestant had a majority in the peaceable parishes, 
 they recommended that he be seated. The claim of contestee had 
 already been disposed of by a former report of the committee declar- 
 ing him^ disqualified by disloyalty. 
 
 On the first vote the House sustained the report by a vote of 78 to 
 73. A motion to reconsider was passed by a vote of 83 to 79, and then, 
 by a vote of 100 to 69, the seat was declared vacant. 
 
 [3 Bart., 699-703.] 
 
 (11) Hunt vs. Sheldon {case on 'merits). 
 
 Violence and intimidation. Majority report for contestee; minority 
 report for contestant. Contestee retai/ned the seat. 
 
 Majority report by Mr. Stevenson; minority report by Mr. Kerr. 
 
 As this was the first of the Louisiana cases reported, the report of 
 the committee contained a full account of the general condition of 
 affairs out of which all the cases grew. The main allegation in all the 
 cases was that in certain parishes, constituting a large part of the 
 State, the election was void by reason of violence and intimidation. 
 At all the previous elections in these parishes since the beginning of 
 the reconstruction period the Republican candidates had received a 
 majority of the whole registered vote, but at this election the Repub- 
 lican vote suddenly fell to less than one-tenth the usual vote, and all 
 
 ' The cases from 1 Bartlett and 2 Bartlett are given here in the order in which they 
 are found in those compilations, instead oi in chronological order 
 
 H. Doc. 510 16 
 
242 DIGEST OF CONTESTED ELECTION CASES. 
 
 but 'M of the \otes that were cast were cast in eight country parishes. 
 In the remaining parishes practically no Republican votes were cast, 
 souk; parishes casting only 1 or 2 votes and others none at all. The 
 cause of this remarkable result was found in the events which shortly 
 preceded the election. A secret military organization, known as the 
 "Knights of the White Camellia," was formed, which embraced prac- 
 tically all the Democratic voters in the State, and was able, in the city 
 of New Orleans, to muster a force of over 16,000 armed men, all sworn 
 to obey the commands of their authorized leaders. Out of this organi- 
 zation grew the Kuklux Klan in the country parishes and the Innocents 
 in the city — bands of men operating in hideous disguises and devoted 
 to the grosser sort of outrages. At first violence was generally 
 avoided, and a system of social and business ostracism against Repub- 
 lican voters, contrasted with treatment of the opposite sort to such as 
 would join Democratic organizations, was relied upon to break the 
 Republican power. These methods proving inefl'ective, violence and 
 murder were resorted to, and for some time the city of New Orleans 
 and neighboring parishes were in a state of anarchy. Not less than 
 2,000 Republicans were killed or injured. There being no State 
 militia, the civil authorities were entirely without means of suppress- 
 ing the disturbances, and the military force stationed at New Orleans 
 was so small that the general in command declared that he had not 
 enough force even to protect United States property if it should be 
 attacked by the organization, which had taken practical control of the 
 city. The result was that the riots and outrages continued until the 
 civil authority was substantially surrendered to the riotous element 
 by the appointment of a leading Democrat as chief of police. This 
 produced a sort of peace, in the nature of a truce, and a comparatively 
 peaceful condition was maintained up to and including the day of elec- 
 tion, but only upon the express understanding that the Republicans 
 would make no effort to poll their vote. Very many witnesses testified 
 to the universal belief that if any attempt had been made to poll the 
 Republican vote the scenes of violence and bloodshed would have been 
 instantly renewed. 
 
 Under such a condition of affairs the committee held that the elec- 
 tion was vitiated in the intimidated parishes. While there was no 
 actual violence at the polls, the majority of the Republicans refrained 
 from voting under an actual and reasonable fear that any attempt on 
 their part to vote would result in violence similar to that which had 
 already taken place. The committee thought the onh' safe rule to be 
 adopted to meet and correct such a condition of affairs was to throw 
 out the vote of all the intimidated parishes and declare the result from 
 the vote of the peaceable parishes. It was proposed to apply this rule 
 to all the Louisiana cases. Applying this rule to the case of Hunt vs. 
 Sheldon, it appeared that the district in question was composed of six 
 whole parishes and part of Orleans Parish. All the parishes, except 
 Orleans and Jefferson, were peaceable, and cast a vote of : Hunt, 4,582; 
 Sheldon, 7,928. On these votes Mr. Sheldon was elected. He had 
 already been sworn in under a special resolution, and the committee 
 recommended that he retain the seat. 
 
 The minority reported in favor of Mr. Hunt. On the face of all 
 the returns he had recei\'ed a majority of 10,826 votes. The certifi- 
 cate had been given to Mr. Sheldon by the action of the canvassing 
 board in throwing out sevei'al parishes on technical grounds plainly 
 
FORTT-FIRST CONGRESS. 243 
 
 untenable. It was now proposed to throw out the pai'ishe.s of Orleans 
 and Jefferson, where more than half the votes were cast and where 
 two-thirds of the registered voters lived, on the ground of violence and 
 intimidation. But it was conceded that the election was in all respects 
 quiet and peaceable, and that everyone who offered to vote voted as 
 he pleased and without difficulty. An election ought not to be held 
 void because a number or class of electors pi-etended that thej^ were 
 afraid to go to the polls, in the face of the fact that those who did go 
 experienced no difficulty. The established rule in such cases was — 
 
 That to invalidate or make void an election on the ground of "riot and intimidation 
 it must appear that the proceedings at the election were interrupted and the ascer- 
 tainment of the result prevented thereby. 
 
 All the previous cases in Congress involving this question had been 
 based on allegations of violence on the daj' of election at the polls, but 
 the election had never been held invalid, because it was not shown that 
 the proceedings were interrupted or the ascertainment of the result 
 prevented. If, however, the charges of intimidation in this case were 
 sustained, a majority in the district could not be shown for Mr. Shel- 
 don. If it were assumed that all the registered voters who did not 
 vote in the parishes of Orleans and Jefferson would have voted for 
 Mr. Sheldon, and their votes were so counted, they would still lack 68 
 votes of overcoming the returned majority of contestant. The minor- 
 ity therefore recommended that the seat be gi\'en to contestant. Mr. 
 Kerr, who made the minority report, was "prevented by lack of time 
 from further considering in this report the general condition of society 
 in the district during the canvass that preceded the election," but 
 promised to do so when the case was debated in the House. 
 
 The resolutions reported by the majority were agreed to by a vote 
 of 114 to 51. 
 
 [2 Bart., 703-718. j 
 
 (12) MoREY IV. McCranie. 
 
 Violeiice i.md ///itliiddi/tion. ]Vhole election held void. 
 
 Report by Mr. Stevenson. 
 
 This was another Louisiana case in which the election in a large jjart 
 of the district was void for violence and intimidation. The House had 
 in the previous case of Hunt m. Sheldon approved the rule — 
 
 That where it appears that certain precincts and parishes (or counties) of a district 
 have been carried by violence or intimidation, the returns therefrom shall be rejected 
 and the result derived from the returns from the peaceable precincts and parishes (or 
 counties). 
 
 But in the subsequent case of Sypher's vs. St. Martin, the House 
 had refused to sustain a decision based upon this rule. The committee 
 preferred not to take this action as a reversal of the rule, but — 
 
 accept the decision of the House in Sypher's case, not as a reversal but as a limita" 
 tion of the rule adopted in Sheldon's case, and interpret the action of the House in 
 Sypher's case to mean that the rule should not be so far extended as to apply to such 
 a case where less than one-fourth of the legal electors of the district resided, and one- 
 flfth of the registered vote was cast, within the peaceable parishes and precincts, and 
 the claimant received but a small majority of that vote. 
 
 Applying these rules to this case, it appeared that the peaceable 
 parishes contained about one-third of the registered vote. In these 
 parishes contestant received a small plurality but not a majority of the 
 
244 DIGEST OF CONTESTED ELECTION CASES. 
 
 votes. If certain paiishcs where the evidence was not quite socon- 
 clusive were retained, contestee would have a small plurality. Ir. either 
 case the claims were negatived by the precedent of Sypher's case. 
 Contestee was also prevented from taking the seat by reason of having 
 taken part in the rebellion. The committee recommended resolutions 
 declaring that neither claimant was entitled to the seat. The House 
 agreed without division. 
 [2 Bart., 719-723.] 
 
 (13) Newsham w. Ryan. 
 
 Violence andr liitvjiddation. Report for contestant. Contestant 
 Seated. 
 
 Report })y Mr. Burdett. 
 
 Contestant alleged that the election in five out of the ten parishes of 
 the district was void for intimidation, and also that contestee was ineli- 
 gible under the fourteenth amendment. The committee found that 
 contestee had, as a member of the State legislature, befoi'e the war, 
 taken the oath to support the Constitution of the United States. Dur- 
 ing the war he was shown to have made a speech to a new company of 
 rebel soldiers, urging them to fight bravely, and he had himself been 
 lieutenant of a compan^'^ of home guards, and worn the recognized 
 uniform of a Confederate officer. He asserted that he had all the time 
 privately desired the success of the Union, but these acts did not indi- 
 cate it, and it appeared that he had been generalh* recognized as an 
 adherent to the rebellion. While those of his neighbors who were 
 known to be Union sympathizers, even in a quiet way, were grossly 
 maltreated, he was always well treated by the rebel authorities. The 
 committee therefore found him ineligible under the fourteenth 
 amendment. 
 
 . In four of the disputed parishes only three Republican votes were 
 cast, though at previous elections the majority of the voters had been 
 Republicans. This result was brought about by the same jjolicy of 
 violence and intimidation found in the other Louisiana cases (see e. g.^ 
 Hunt VH. Sheldon). If these four parishes were rejected, contestant 
 would have a majority of 649 votes in the remaining six. In the six 
 retained parishes about two-thirds of the votes of the district were cast. 
 If the other j^arish objected to, in which only 43 Republican votes 
 were cast, was rejected, the majority of contestant would lie 1,308. 
 There was much intimidation in this parish, but less than in the other 
 four. In the retained parishes, also, there was a condition of affairs 
 which probably caused a larger Democratic and smaller Republican vote 
 than would otherwise have been cast. 
 
 The committee recommended that contestant he seated. The House 
 passed the resolution by a vote of 79 to 71. A motion to reconsider 
 was laid on the table bv a vote of 95 to 77. 
 
 [2 Bart., 724-731.] 
 
 (14) Wallace (w. Simpson. {Case onmerits). 
 
 Inellglllliti/ of (xmtestee. Yiolence and Intimidation. Report for 
 conteaiant. Contestant seateiL 
 
 Report by Mr. Cessna. 
 
 On the prhiia fade case neither party had heou sworn in. On the 
 case on the merits the subcommittee unanimously reported in favor of 
 
FORTY-FIRST CONGRESS. 245 
 
 contestant. The report was based on three grounds: (1) That the 
 ineligibility of contestee involved the election of contestant; (2) that 
 the election was void in six of the nine (H)unties, and contestant had a 
 majorit}' in the other counties; and (3) that, if no counties were rejected, 
 enough voters were prevented from voting by violence and intimida- 
 tion to have given the majority in the district to contestant if they had 
 voted. These three propositions all led to the same conclusion, but 
 the first proposition was agreed to only by Mr. Cessna, who drew the 
 report. Mr. Hale agreed to the second and third, Mr. Randall prob- 
 ably onlj' to the third. 
 
 (1) Mr. Simpson, the contestee, was notoriously ineligible, under the 
 fourteenth amendment. He had been a member of the legislature 
 before the war and taken the oath to support the Constitution of the 
 United States. He had voted for the ordinance of secession, been a 
 colonel in the Confederate army, and a member of the Confederate 
 congress. All these were facts of which the electors were bound to 
 take notice, and it abundantly appeared that they did have actual 
 notice of them. Under these circumstances Mr. Cessna thought that 
 the votes cast for contestee ought to be considered as thrown away. 
 Such was the English rule. There was no American precedent to the 
 contrarj'. In the only previous case in which the question had been 
 raised the disqualification was not notorious. The question grew out 
 of the conditions produced by the rebellion, and if there were no_pre- 
 cedents it was because the rebellion itself was without precedent. If 
 a majority of the voters of a district voted blank ballots, or for an 
 imaginary person, their votes would not be considered, and it ought 
 to be the same when they voted for a person notoriously ineligible. 
 
 (2) In six of the nine counties of the district the freedom of the elec- 
 tion was destroyed by violence and Ku Klux outrages. 
 
 The same system prevailed in each one of these six counties. Clubs were formed; 
 resolutions passed; laborers discharged for voting their sentiments; men denounced; 
 custom taken from them; their property burned; houses fired into; some stripped 
 and flogged; others crippled, scourged, waylaid, and robbed; pictures of Union men 
 taken and sent around to Democratic roughs, so that they might know whom to 
 murder; cannon fired all of the night before the election, so as to frighten the negroes 
 and keep them from the polls; the whole district filled with Winchester rifles (four- 
 teen shooters) ; many Union men, both white and black, hung up to the trees and 
 shot down in the woods and in the streets; and many others compelled to vote the 
 Democratic ticket against their will, in order to save their lives. 
 
 The same persons who committed the outrages before the election 
 were at the polls armed and making threats. Where no attempt was 
 made by Republicans to vote the election was comparatively quiet, but 
 where they did attempt to vote there was violence at the polls in exact 
 proportion to their persistence. The votes of all these counties ought 
 to be thrown out, and the election adjudged to contestant on the basis 
 of his majority in the other three counties. 
 
 (3) If the vote of no county was thrown out, contestee had on the 
 returns a majority of 4,291. But the testimony showed that 6,700 voters 
 had been prevented from voting by violence and intimidation. If these 
 votes had been permitted to be cast, contestant would have been elected. 
 
 The committee recommended that contestant be seated, and the House 
 agreed nem. con. 
 [2 Bart., 731-746. J 
 
246 diaest of contested election cases. 
 
 (15) Whittlesey w. McKenzie. 
 
 Disloyalty. Report for contestee. C'onfcKta', retained the seat. 
 
 Report l)y Mr. Churchill. 
 ■ Contestant claimed that contestee was ineligible under the fourteenth 
 amendment, and that in consequence of the ineligibility of contestee, 
 he was himself elected. The alleged acts of disloyalty were all per- 
 formed before the passage hy the State of Virginia of the ordinance 
 of secession. After the passage of thatordinance contestee was through- 
 out the Avar an undoubted Union man. But he had as a member of the 
 legislature of Virginia voted for the resolution declaring that if the 
 differences between the States could not be adjusted ''eveiy considera- 
 tion of honor and interest demand that Virginia shall unite her des- 
 tiny with the slaveholding States of the South." He had also voted 
 for the act authorizing the borrowing of money and issue of treasury 
 notes for the purpose of providing for the defense of the State. As 
 a member of the common council of the city of Alexandria he had 
 voted for an appropriation of |200 to arm two militia companies, both 
 of which afterwards A\'ent into the Confederate army. But all these 
 acts were before the passage of the ordinance of secession, and in con- 
 nection with them contestee had not given adherence to an^' other 
 power than the United States, except the State of Virginia, which at 
 that time was not hostile to the United States. The two resolutions of 
 the legislature were voted for by the Union members, and did not 
 involve disloyalty. The appropriation to the militia companies was a 
 large reduction from the amount proposed by the rebel sympathizers, 
 and was considered at the time a Union act. 
 
 The committee unanimously recommended a resolution retaining 
 contestee in his seat. The House agreed without division. 
 
 [2 Bart., 746-754.] 
 
 (16) Dakrall (w. Bailey. 
 
 Violence and intimidation. Hepoiifor conti-xfant. Contestant seated. 
 
 Report \>j Mr. Stevenson. 
 
 There were twelve parishes in this district. The election was not con^ 
 tested in seven of the parishes, casting consideral)ly over half of the vote 
 of the district. In the other five parishes contestant claimed that the 
 election was void for violence and intimidation, and the committee 
 sustained his claim. In one parish there was a two-days' massacre bv 
 armed bands of men, and over 200 negroes were killed. After that 
 for weeks no colored man dared venture out without a badge of pro- 
 tection, issued hy the secret order which hac' conducted the riotino-. 
 In three neighboring parishes the same condition of riot prevailed 
 and many Republicans were killed. No Republican votes were cast, 
 though the majority of the voters were Republican. In another parish 
 the parish judge and sheriff, both Republicans, were assassinated, and 
 a reign of terror prevailed. Only a few Republii'ans Aoted, and these 
 could not have done so if troops had iiot come into the parish on the 
 night before the election. 
 
 Contestant had a majority of 245 votes in the peaceable parishes, 
 and the committee recommended that he be seated. The House agreed 
 by a vote of 67 to 64. A motion to reconsider was laid on the table 
 by a vote of 96 to 77. 
 ■[2 Bart., 754-75!).] 
 
foety-fiest congress. 247 
 
 (17) Barnes vs. Adams. 
 
 Irregularities,' illegal votes; violence and intimidation. Report ff/r 
 contestee. Contestee retained the seat. 
 
 Report by Mr. McCrary. 
 
 Contestant claimed that many ex-rebel soldiers voted for contestee, 
 and that their votes were illegal; that some of the officers of election 
 were ineligible on account of disloyalty; that in some precincts the 
 officers of election were not equally divided between the two parties, 
 as required by law; that many illegal votes were cast; and that at some 
 precincts the election was void for violence or fraud. He also charged 
 in his evidence and argument, but not in his notice of contest, that 
 some of the officers of election were not sworn. 
 
 The committee found that there was no law of Kentucky, or of the 
 United States, depriving persons who had been common soldiers in 
 the rebel army of the right to vote. In the case of McKee vs. Young 
 their votes had been rejected on the ground that they were paroled 
 prisoners of war, but at the time of this election the war had been over 
 for three years, and their status as prisoners had certainly ceased to 
 exist. 
 
 Under the law of Kentucky the officers of election were required to 
 be equally divided between the political parties, but by an act of March 
 15, 1862, it was provided that those who had engaged in, advised, aided, 
 or adhered to the rebellion "shall not be deemed one of the political 
 parties in this Commonwealth within the provisions of the act. " Some 
 of the election officers had been in the rebel army, or adherents to the 
 rebellion, and contestant claimed that the votes of precincts where 
 such officers presided should be thrown out. But the committee held 
 that the act was directed against the secession partj- in existence when 
 the act was passed and not against individuals. After that party had 
 ceased to exist the persons who had belonged to it were not disqualified 
 from serving as representatives of one of the recognized political par- 
 ties; and even if they were disqualified, they were officers de facto, 
 acting under color of authority, and in the absence of fraud their acts 
 aflFecting third parties were valid. 
 
 The Edlegation that some of the officers of election were not sworn 
 was not made in the notice of contest, and this ought to be decisive of 
 the question. But if it were not, there is — 
 
 a principle of law which your committee believe to be well settled by judicial deci- 
 sions, and most salutary in its operations, which is conclusive of this point, as well as 
 of several other points in this case. It is this: That in order to give validity to the 
 official acts of an officer of election so far as they affect third parties or the public, 
 and in the absence of fraud, it is only necessary that such officer shall have calor of 
 authority. It is sufficient if he be an officer de facto and not a mere usurper. This 
 doctrine haa been recognized and enforced by many of the highest courts of this 
 country, and among others by the following: 
 
 People V8. Cook, New York (4 Selden, 67); Taylor vs. Taylor et al. 
 (10 Minnesota, 107); Baird vs. Bank of Washington, Pa. (11 S. & R., 
 414); Pritchett et al. vs. The People, Illinois (1 Gilm., 529); The 
 People vs. Ammons (5 Gilm., 107); St. Louis County Court vs. Sparks 
 (10 Mo., 121); Whipley vs. McKune (10 Cal., 352); The People vs. 
 Cook, New York (14 Barbour, 259); Greenleaf vs. Low (4 Denio, 
 168); Weeks vs. Ellis (2 Barbour, 324); Keyser vs. McKisson (2 Rawls, 
 
248 DIGEST OF CONTESTED ELECTION CASES. 
 
 139); McGregor vs. Balch (14 Vermont, 428). Quotations from and 
 comments on each of these cases are given. 
 
 After a careful examination of the authorities the committee is satisfied that no 
 principle of law is better settled by judicial decisions, and that no authority can be 
 found emanating from a respectable court in conflict with those cited. The cases 
 which have been decided by this House are not so harmonious or so free from diffi- 
 culty. These will now be referred to briefly. 
 
 The case of Jackson M. Wayne (CI. and H., 47): In this case it was held that where 
 the law required three magistrates to preside at an election, a return by three persons, 
 two of whom were not magistrates, was defective. An examination of the whole 
 case, however, shows that fraud was charged and proven, and the case is therefore 
 not authority for the doctrine that a fair election at which the people have expressed 
 their voice fully and freely should be set aside on the ground that one or more of the 
 officers were such de facto only and not de jure. 
 
 McFarland vs. Culpepper (CI. and H., 22i): In this case it seems to have been held, 
 without much consideration or discussion, that a failure on the part of eTection officers 
 to take the required oath vitiates the election. It is not quite clear that the case was 
 one in which there was no fraud. Much of the evidence was ruled out because riot 
 properly taken, and finally the seat which was contested was declared vacant. 
 
 Easton vs. Scott (CI. and H., 272) : In this case the failure of some of the election 
 officers to be sworn is one of the many objections urged against the validity of the 
 election. Upon the whole case the seat was declared vacant. This case, however, 
 was not decided upon tlie sole ground that the officers were not sworn. There were 
 other objections, and among them that the election was held viva voce when the law 
 required that it be by ballot, and that there was fraudulent voting and fraudulent 
 rejection of legal votes. 
 
 Draper vs. Johnston (CI. and H., 702) : In this case the vote of a precinct presided 
 over by officers not sworn was thrown out. The point does not seem to have been 
 discussed or the soundness of the law laid down to have been questioned. 
 
 Howard TO. Cooper (1 Bart., 275): This case was decided upon various grounds. 
 There were illegal votes and frauds alleged and proved to the satisfaction of the com- 
 mittee. Among other things it was shown that at one precinct there were but two 
 inspectors, whereas the law required three. This was held to vitiate the vote of the 
 precinct where such officers presided. At this same precinct, however, the com- 
 mittee found that illegal votes were cast. 
 
 In the case of Delano vs. Morgan (Fortieth Congress') the vote of one township 
 was thrown out, upon the ground that one of the three judges of election was a 
 deserter from the Union Army, and, therefore, not capable of taking or holding the 
 office. In the discussion of that case the chairman of the committee (Mr. Dawes, of 
 Massachusetts) put the decision upon the ground that there was an express statute 
 declaring that a person guilty of desertion should ' ' be incapable and forever disqualified 
 to hold any office under the Government." He insisted that such a person could not 
 be an officer even de facto. ( Vide Congressional Globe, vol. 67, p. 26808.) 
 
 It is worthy of remark that while some of the decisions of this House seem in con- 
 ffict with the doctrine of this report, that doctrine itself has never been directly 
 questioned. It may have been ignored, but no report can be found in which it has 
 been denied in express terms or even seriously doubted. On the contrary, wher- 
 ever this principle is referred to at all in any of the reports in cases decided bv this 
 House it has been approved. 
 
 There are a number of decisions of this House quite in harmony with the law as 
 it is laid down by the courts, as shown by the judicial decisions hereinbefore quoted. 
 We notice the following: 
 
 Milliken !is. Fuller (1 Bart., 176): In this case the election at a certain precinct 
 was held by officers who were not chosen according to law, ha^dng been elected in 
 April, when by law they should have been elected in March. The report of the 
 committee, which was unanimous and which was adopted by the House, contains 
 this language: 
 
 "The committee is unanimously of the opinion that the persons officiating were 
 officers de facto, acting in good faith, and as no fraud is alleged the votes from the 
 district were rightfully counted for the sitting member." 
 
 In Clark TO. Hall (1 Bart., 215) the report of the committee has this language: 
 
 "Your committee would not reject for mere informality a county abstract which 
 truly presents the aggregates of the votes actually cast in the precincts." 
 
 1 2 Bart., 168. 
 
FORTY-FIRST CONGRESS. 249 
 
 In the case of Flanders and Hahn (1 Bart., 443) the committee used this langua,ge: 
 
 "The principal and only aim of the law is to secure fair elections, and the non- 
 observance of directory provisions can not annul an election carried on with all the 
 essentials of an election, and with perfect fairness." 
 
 And, finally, in the case of Blair vs. Barrett (1 Bart., 313), after a careful review 
 of the whole subject, the committee, through its chairman, Mr. Dawes, of Massachu- 
 setts, states the law precisely in accordance with the views now taken by your com- 
 mittee. We extract as follows: 
 
 "Had it appeared from the evidence that the election had been fairly conducted at 
 these precincts, and there were no traces of fraud, no taint of the ballot box, the 
 committee would not have been willing to have recommended a rejectidn of these 
 polls. The honest electors should not be disfranchised and their voice stifled from a 
 mere omission of the officers of election to take the oath of office." 
 
 The question, therefore, regarded in the li^ht of precedent or authority alone, 
 would stand about as follows: The judicial decisions are all to the effect that the acts 
 of ofiicers rfe /ado, so far as they affect third parties or the public in the absence 
 of fraud, are as valid as those of an officer dejure. The decisions of this House are 
 to some extent conflicting; the point has seldom been presented upon its own merits, 
 separated from questions of fraud ; and in the few cases where this seems to have 
 been the case the rulings are not harmonious. In one of the most recent and important 
 cases (Blair vs. Barrett), in which there was an exceedingly able report, thedoctiine 
 oi the courts, as'above stated, is recognized and indorsed. The question is, there- 
 fore, a settled question in the courts of the country, and is, so far as this House is 
 concerned, to say the least, an open one. 
 
 Your committee feels constrained to adhere to the law as it exists and is adminis- 
 tered in all the courts of the country, hot only because of the very great authority by 
 which it is supported, but for the further reason, as stated in the outset, that we 
 believe the rule to be most wise and salutary. The officers of election are chosen of 
 necessity from among all classes of the people; they are numbered in every State 
 by thousands; they are often men unaccustomed to the formalities of legal proceed- 
 ings. Omissions and mistakes in the discharge of their ministerial duties are almost 
 inevitable. If this House shall establish the doctrine that an election is void because 
 an officer thereof is not in all respects duly qualified, or because the same is not con- 
 ducted strictly according to law, notwithstanding that it may have been a fair and 
 free election, the result will be very many contests, and, what is more, injustice 
 will be done in many cases. It will enable those who are so disposed to seize upon 
 mere technicality in order to defeat the will of the majority. 
 
 As this is the leading case on this question, and as the rule here laid 
 down has since been generally followed, it has seemed proper to quote 
 this part of the report in full. 
 
 The only other issues in the case were the allegations of fraud or 
 violence at certain precincts and of illegal voting. 
 
 At one of the precincts there had been rioting and Ku Klux out- 
 rages before the election and threatening notices had been posted up, 
 but on the day of election a truce was declared, and while both parties 
 went to the polls armed there was no violence at the polls and the 
 full vote of both parties was cast. The committee did not reject this 
 poll. Other precincts were attacked chiefly on the ground of the 
 reception of a large number of illegal votes, but as these votes could 
 generally be purged, and as it would have been possible in all cases 
 (the election being viva voce) for the contestant to have made specific 
 proof what votes were illegally cast for con test ee, the committee did 
 not reject any of these precincts. The poll books of five precincts 
 were not cex'tified by any officer of election, and thej- wei'e i-ejected. 
 After all these corrections were made, the deduction of individual 
 illegal votes according to the construction of the evidence most favor- 
 able to contestant would still leave contestee a majority. The com- 
 mittee therefore reported resolutions declaring him elected. 
 
 The resolutions were adopted without division. 
 
 [2 Bart., 760-772.] 
 
250 digest of c0kte8ted election cases. 
 
 (18) Tucker /'.v. Booker. 
 
 Disloyalty. Report for conteKin'. ConteMee ndained the seat. 
 
 Report )3y Mr. Brooks. 
 
 Contestant claimed that contestee was ineligible under the fourteenth 
 amendment, and that he was unable truthfully to take the oath required 
 by the act of July 2, 1862. The committee found that contestee had 
 been a justice of the peace before the war, and as such he had taken 
 the oath to support the Constitution of the United States. He was 
 presiding justice of the county court at the outbreak of the war, and 
 continued in his office throughout the war. He voted for various 
 measures looking to the furnishing of supplies to the soldiers from 
 his county who were in the Confederate army, and was appointed and 
 acted as agent to collect and distribute those supplies. He had voted 
 for the ordinance of secession. All these apparently disloyal acts 
 were admitted by contestee, but he claimed that he had nevertheless 
 been all the time in favor of the Union. He continued in his office 
 after the passage of the ordinance of secession because it would have 
 been unsafe to resign it, it protected him from conscription into the 
 rebel army, and it was thought best by the Union men to have as 
 many such offices as possible held by Union men. The act of collect- 
 ing and distributing supplies for the soldiers became a part of his 
 duty as a member of the county court. He had voted for the ordi- 
 nance of secession, though opposed to it, because on consultation with 
 friends of the same opinion it had been concluded that that would be 
 the only safe course. The committee found that these claims were 
 sustained by the evidence and that the acts done by contestee were in 
 contravention of the letter but not of the spirit of the fourteenth 
 amendment. They therefore held that contestee was not ineligible 
 under that amendment. 
 
 If no action had been taken by the House on the question there 
 might be difficulty about contestee's taking all the oath required, but 
 as the House had already voted that the oath be administered to him, 
 it followed that the oath had been considered both l)y the House and 
 by contestee as in spirit merely requiring loyaltj'. The committee 
 therefore recommended that contestee retain his seat. The House, by 
 a vote of 99 to 24, laid the whole subject on the table, which left con- 
 testee in the seat. 
 
 [2 Bart., 772-777.] 
 
 (19) SwiTZLEE I'K. Dyer. 
 
 Frdudnlciht reijhtratiori. Majority report for contestant; mlnnrity 
 report for contestee. Contestee retained the seat. 
 
 Majority report by Mr. Churchill; minority report by Mr. Cessna. 
 
 According to the returns contestant received ii majority of 710 votes, 
 but the secretary oi state of^Missouri threw out the returns of JNIonroe 
 County, and gave the certilicate to contestee. who had a majority of 
 i32 votes in the remainder of the district. The decisive issue in the 
 case was the question whether the vote of Monroe C5unty should be 
 counted. The majority of the committee (Messrs. Churchill and Burr) 
 held that as the law only required the secretary of state to "cast up 
 the votes " returned to him; he was a purely ministerial officer, and 
 
FOETY-FIEST CONGRESS. 251 
 
 had no right to reject the vote of this county, which was regularly 
 returned. But this question had no bearing on the merits of the case. 
 
 Under the constitution of Missouri persons who had given adher- 
 ence or sympathy to the rebellion were disfranchised, and a very rigid 
 registration law was enacted to enforce these provisions. The consti- 
 tutionality of these requirements of the constitution and laws had been 
 sustained by the supreme court of Missouri, and affirmed by the 
 Supreme Court of the United States. Contestee charged that in Mon- 
 roe County these provisions had been violated, and that as a result of 
 corrupt conspiracy large numbers of persons who were disfranchised 
 under the constitution and laws were registered and permitted to vote. 
 It appeared that the superintendent of registration for the senatorial 
 district of which Monroe County was a part had always been a Repub- 
 lican, and was recommended and appointed as such. After his appoint- 
 ment he was approached by a Democratic candidate for reelection to 
 the State senate, who offered to procure his election as sheriff' if he 
 would appoint "the right sort of men," meaning Democrats, on the 
 count}' registering boards. The candidate also offered to deposit from 
 $3,000 to $5,000 in a bank as a guaranty of his ability to secure the 
 election of sheriff'. There was no evidence that this last proposition 
 was accepted, but the first was. The superintendent of registration 
 removed all the Republican registering officers whom he had appointed 
 and appointed new officers, nearly all Democrats. He then announced 
 himself as an independent candidate for sheriff; his name was put on 
 the Democratic tickets, and he was elected. 
 
 In Monroe County there was trouble in the board originally appointed, 
 owing to disagreements between one of the members of the board and 
 the other two. The two were removed and two others, recommended 
 by the third, were appointed. One of these was afterwards removed 
 and another appointed in his place. The board as last constituted 
 acted harmoniously. 
 
 The committee, however, found that if the vote of the county was 
 "to be rejected for errors connected with the registration it must 
 be found in the action of the board itself, and not in circumstances 
 preceding or attending their appointment." On this point there was 
 no evidence justifying the rejection of the vote of the county. The 
 instructions issued to the board by the superintendent were that they 
 should strictly obey the law, and the members of the board testified 
 that they did so. Any citizen had a right to appear before the board 
 and object to the registration of disqualified applicants, and it did not 
 appear that the board threw an}' obstacles in the way of persons desir- 
 ing to object, yet none did so. It was true that the number of voters 
 registered by this board was very much larger than that registered for 
 the preceding election, but the increase was in part accounted for by 
 various natural causes and in part, probably, by the different spirit of 
 the two boards of registering officers in construing and applying the 
 law. But much better evidence than was produced was in the reach 
 of contestant and could have been produced if a large number of dis- 
 qualified persons really were registered. The ballots were numbered 
 and preserved, so that it was easy to prove for whom each vote was 
 cast. 
 
 If the sitting member therefore believed that persons were registered and voted 
 in that county who were not entitled so to do under the constitution and laws of 
 Missouri, he should have established this fact and at the same time purged the pcjU 
 
252 DIGEST OF CON^TESTED ELECTION CASES. 
 
 by showing such disquahfication in each individual case by the voter's own oath, or 
 other adequate proof, and then showing for whom he voted, so that the House could 
 make the proper deductions in deciding this case. This the sitting member has not 
 attempted to do, and failing this, has not a right to aak the House to reject their 
 votes upon secondary and far less satisfactory proof. 
 
 The committee therefore held that the vote of Monroe County should 
 be counted. 
 
 The votes of some precincts where fraud was apparent were rejected. 
 In each case it appeared that more votes were returned as being cast 
 than were found on the list of qualified voters. The custodians of the 
 ballot boxes had refused to allow them to be opened, and it was hence 
 impossible to purge the returns by ascertaining what votes were cast 
 by legal voters. There was no alternative but to reject the returns. 
 One or two precincts which had been rejected by the county courts for 
 technical reasons were counted by the committee. On the whole case, 
 if the vote of Monroe County was not rejected contestant had a 
 majority of 559 votes, and the committee recommended that he be 
 seated. 
 
 The minority (Mr. Cessna) agreed in regard to the rejection of the 
 precincts rejected for fraud, and rejected one or two in regard to which 
 the majority found the evidence insufficient, and also held that the vote 
 of Monroe County should be rejected, which would elect contegtee by 
 a majority of 911. The legislature of the State of Missouri had 
 already held that there was no valid election in Monroe County. It 
 was clear to the minority that the registration in this county was car- 
 ried on in reckless violation of the law, as the result of a corrupt con- 
 spiracy entered into by the superintendent of registration for a 
 consideration. The circumstances of the appointment of the members 
 of the board who finally acted showed conclusively that two of them 
 were selected for the express purpose of acting in harmony with the 
 third, who was opposed to a strict enforcement of the law. The board 
 had power to summon witnesses before it, but it summoned none, and 
 the condition of affairs was such that it was unsafe for anyone to 
 appear as a voluntary witness. The number of voters registered by 
 this board was four times greater than the number registered two 
 years before, though there was every reason for believing that the 
 former registration was a full one, and there had been no material 
 increase in the population of the county. It was a historical fact that 
 the vast majority of the people of this county were disloyal during the 
 war, and that it furnished some twelve hundred soldiers to the rebel 
 army. Witnesses who had examined the registry lists under which 
 this election was held testified that they found the names of very many 
 persons who had borne arms in the relaellion, but refused to give their 
 names on the ground that it would not be safe. There was certainly 
 as strong ground for the rejection of this county as there was for the 
 rejection of Calloway County in a case from the same district in the 
 preceding Congress (Switzler rs. Anderson), with the addition of 
 the very important fact that in this case the fraud was shown to be 
 the result of a corrupt conspiracy. The minority recommended that 
 the vote of this county be rejected, and that coiitestee retain his seat. 
 
 The House adopted the resolution recommended by the minority, 
 retaining contestee in his seat, by a vote of 108 to 56. 
 
 [3 Bart., 777-810.] 
 
FOBTY-FIEST CONGRESS. 253 
 
 (20) Segar. 
 
 Claiiii for additional reprenentation. Majority report adverse; 
 minority report favorable to claimant. Claimant not admitted. 
 
 Majority report by Mr. Paine; minority report by Mr. Stevenson. 
 
 Under the apportionment act of 1850 Virginia was entitled to eleven 
 Representatives. When the State of West Virginia was admitted, it 
 was with three Representatives, leaving, if the original number was to 
 be preserved, eight for Virginia. The constitutional convention called 
 under the reconstruction laws passed an ordinance providing for the 
 election of eight Representatives from eight speciiied districts, and a 
 ninth Representative fi'om the State at large. Mr. Segar was elected 
 from the State at large. The committee reported against his right to 
 a seat. The ordinance under which he had been elected was new leg- 
 islation; it had never been submitted to the people or to Congress for 
 ratification, and the State had no right to fix the number of its Repre- 
 sentatives. All the other reconstructed States had been admitted with 
 the same number of Representatives they were entitled to under the 
 old apportionment, and there was no reason why Virginia should be 
 an exception. By the enfranchisement of the former slaves Virginia 
 now had a representative population large enough to entitle her to an 
 additional Representative, but all the other Southern States were in 
 the same condition, and a number of Western States had received large 
 additions to their population by immigration. If they must wait for 
 the apportionment under the census of 1870 there was no reason why 
 Virginia should not also wait. 
 
 A minority of the committee reported in favor of the claimant. 
 There had never been any law depriving Virginia of her full eleven 
 Representatives, and it would be unsafe to infer such a law from the 
 fact that West Virginia had been admitted with three Representatives. 
 The whole reconstruction proceedings of Virginia had been approved 
 by Congress, thus ratifying the provision providing for the election 
 of a ninth Representative at large. The State had a representative 
 population more than large enough to entitle it to nine representa- 
 tives, and law and equity both called for the admission of claimant. 
 
 The House adopted the resolutions presented by the majority, 
 refusing to admit claimant, without division. 
 
 [2 Bart., 810-822.] 
 
 (21) Reid vs. Julian. 
 
 Fraud; irregularities. Majority report for contestee; minority report 
 for contestant. Oontestee retained the seat. 
 
 Majority report by Mr. Cessna; minority report Vjy Mr. Randall. 
 
 If all the precinct returns had been counted, the contestant would 
 have a majority on the face of the returns, but the county canvassers 
 of. Wayne County counted the north poll and refused to count the 
 south poll of Wayne Township. This gave contestee the majority. 
 If both polls should be counted or both rejected, contestant would have 
 the majority. The question of counting or rejecting these polls was 
 the main issue in the case. A few charges of mistakes and irregulari- 
 ties were made in regard to other polls, and the majority and minority 
 ditiered somewhat in regard to them, but they did not control the 
 
254 DIGEST OF CONTESTED ELECTION CASES. 
 
 case. These two precincts of Wayne Township had been separated 
 for the iirst time at this election. Only one registry had been made 
 for the whole township, and duplicate copies of it were used at the two 
 polls. The officers officiating at both polls were residents of the north- 
 ern precinct. The committee examined the question, both from the 
 point of view of purging the poll, and of rejecting the returns and 
 counting only votes proved (diunde. From the first standpoint, it was 
 evident that the returns were incorrect and at least required purging. 
 Contestee was returned as receiving only 475 votes, and he called 508 
 witnesses who swore clearly that they were qualified voters and voted 
 for him. The votes of 43 others were satisfactorily proved by their 
 own testimony or that of persons who gave them tickets and saw them 
 vote them. The evidence of the voters themselves was "as full, com- 
 plete, and reliable as it is possible for human testimony to be given. 
 It would be received in any court of justice in the country, and held 
 sufficient to establish any fact in a civil, or even criminal case." But 
 the contestee insisted, and the committee sustained him, that the whole 
 return should be rejected, and only votes proved aliunde counted. It 
 was well settled that a whole poll should be rejected either for (1) want 
 of authority in the election board, (2) fraud in conducting the election, 
 or (3) such irregularities or misconduct as render the result uncertain. 
 This poll should be rejected on the first and third grounds, and if fraud 
 also was not proved against the election officers, it was proved that 
 they gave abundant opportunity to others to commit it. No injustice 
 could be done to either party or to any legal voter by throwing out a 
 fraudulent poll. Both parties could make proof of the legal votes 
 cast for them: and if contestant had not done so in this case it was evi- 
 dent that it was because to ha^e done so would only have confirmed 
 the proof of fraud. 
 
 Aside from the testimony of the voters showing a result different 
 from the returns, there were many f-atal irregularities. There was no 
 lawful registration of voters. Only one of the registering officers was 
 a resident of the south precinct, while a majority were residents of the 
 north precinct. The registry was therefore legal as to the north and 
 illegal as to the south precinct. Some voters from the north precinct 
 voted in the south precinct, and the rulings of the election officers were 
 such that anj' might have done so. The general character and sympa- 
 thies of the voters in the two precincts were similar, and yet in the 
 southern ward contestee ran proportionally umch further behind his 
 ticket than in the northern ward. The board adjourned for supper 
 before the completion of the count; outsiders were allowed in the room; 
 the ballot box was left unguarded during the adjournment; the inspect- 
 ors were chosen by the crowd instead of by the judges, and the ballots 
 were carried outside the precinct to be counted — all in violation of law. 
 Under the law the election officers were required to be residents of the 
 election district, but in this case the inspector and both judges I'esided 
 outside of the district. They could not be officers de facto, for a per- 
 son could not be an officer de facto who did not possess the qualifica- 
 tions requisite for officers de jure. 
 
 If no poll was rejected, but certain corrections requii'ed by the evi- 
 dence were made, and the votes proved for contestee in the south poll 
 of Wayne Township'in excess of the return were added to his vote and 
 deducted from that of contestant, contestee would ha\-e a majority of 
 64 votes. If this poll were rejected, and the votes proved aliunde 
 
FORTY-FIRST CONGRESS. 255 
 
 counted, contestee would have a majority of 603 votes. The commit- 
 tee recommended that he retain his seat. 
 
 The minority (Mr. Randall) dissented. If any reasons could be given 
 for the rejection of the south poll, they were equally valid against the 
 north poll, and whether both were rejected or both counted the result 
 would be the same. The registry in both polls was equally irregular. 
 The officers officiating at the south poll were at least officers <l<' facto, 
 whose acts were valid in the absence of fraud. The result of the elec- 
 tion for governor was announced at the south poll before the com- 
 pletion of the whole count, but the law prohibiting this was merely 
 directory, and, at any rate, this could not vitiate anj' votes except those 
 for governor. In the north ward the vote was similarlj- announced on 
 both governor and Congressman, so that contestee had nothing to gain 
 on this point. In both wards the election was held at engine houses, 
 and in the evening, for convenience, the counting was done in other 
 places, where fire and lights could be had. Both boards adjourned for 
 supper, but the board in the south ward careful Ij^ locked the ballot 
 box and the room where it was left, while the other board left both 
 unlocked. These irregularities were not sufficient to reject either 
 ward, and certainlj' they gave no excuse for singling out the south 
 ward for rejection. 
 
 The evidence was entirely insufficient to show fraud. The testimony 
 of the officers of election showed that no fraud was committed or per- 
 mitted. A recount of the ballots made at the instance of contestant 
 did not differ materially from the original count. The presumption 
 of the correctness of the returns could only be overthrown by the best 
 evidence, which was the ballots themselves, and not oral testimony. 
 But if the testimony of the voters was received," there were only 496 
 who testified clearly that they voted for contestee. The excess could 
 be added to his vote and deducted from contestant, and contestant 
 would still have a majority of 85 votes. The minority recommended 
 that he be seated. 
 
 The House, by a vote of 127 to 50, agi-eed to the resolutions pre- 
 sented by the majoritv, and contestee retained the seat. 
 
 [2 Bart., 822-871.] " 
 
 (22) Zeigler vs. Rice. 
 
 Disloyalty. Majority report to declare seat vacant; minurity report 
 for contestee. Contestee retairicd the seat. 
 
 Majority report by Mr. Butler; minority report by Mr. Burr. 
 
 Contestant charged that contestee was ineligible under the fourteenth 
 amendment. The whole committee held that if this was so it gave no 
 claim to contestant. The majority held that the charge was sustained. 
 Contestee, as a member of the legislature of Kentucky, had taken the 
 oath to support the Constitution of the United States. He had after- 
 wards voted for the resolution, declaring that if the Government should 
 attempt to coerce the Southern States, Kentucky would furnish means 
 to resist the invasion of the South. This resolution was supported by 
 many of the strongest Union men in Kentucky at the time, and the 
 committee held that a vote for it before the war had actually com- 
 menced was not an act of disloyalty. But the te.stimony showed that 
 contestee was from that time on a secessionist. When the rebel army 
 was driven out of Kentucky he went out before it, and did not return 
 
256 DIGEST oe; contested election cases. 
 
 until it returned. He was, during the war, captured near the rebel 
 lines, and claimed protection as a Confederate officer. He had admitted 
 at the time that he was on his way to doing recruiting service for the 
 rebel army. The committee recommended that the seat be declared 
 vacant. 
 
 The minority (Mr. Burr) held that the charges entirely failed of 
 proof. So far from contestee being a secessionist, the testimony 
 showed that all his influence exerted itself in the opposite direction, 
 and that a whole regiment of volunteers refused to enter the rebel 
 army on account of his refusal to join it, and most of them afterwards 
 enlisted in the Union Army. He had gone out of Kentucky, in the 
 first place, to collect some money, and had remained out in order to 
 avoid some desperate characters who were hostile to him, and were 
 likely to take advantage of the unsettled state of affairs to assassinate 
 him with impunity. The witnesses who testified to his admissions at 
 the time of his capture were all impeached, and their testimony was 
 so inconsistent that all of it could not be true. It was fully contra- 
 dicted by the testimony of General Garfield, before whom contestee 
 was brought when captured, and who released him as not being even 
 a suspected person. 
 
 The House adopted, without division, the resolutions presented by 
 the minority, and contestee retained the seat. 
 [2 Bart., 871-897.] 
 
 (23) Eggleston vs. Stradee. 
 
 Irregularities. Report for contestee. Contestee retained the seat. 
 
 Report by Mr. Hale. 
 
 Contestee had a majority of 211 votes. Contestant asked that the 
 vote of two wards in the city of Cincinnati be thrown out. The rejection 
 of either would elect him. 
 
 The First Ward was asked to be thrown out because of lack of 
 authoritj^ in the election board. There was no proof of fraud. Two 
 members of the board, one a Democrat and one a Republican, were 
 present at the opening of the polls, and a third, a Democrat, was elected 
 by the voters present, under the law. Later in the day a Democratic 
 officer left on account of sickness in his family, and another Democrat 
 was selected in his place by the election board, without objection from 
 anyone, and sworn in. The regularly appointed officer returned once 
 or twice during the day, and whenever he was present he acted. The 
 substitute judge was undignified and disorderlv in his conduct during 
 the day, but not to such an extent as to intimidate anyone. He 
 with the other Democratic judge, voted to receive some 25 votes 
 which the Republican judge thought were illegal, but a difference of 
 opinion on this number of votes in a large poll was no sign of fraud. 
 Contestant claimed that the substitute judge was not even an officer de 
 facto, because he did not serve by color of anything that under any 
 circumstances could have been a legal appointment, there being nb 
 vacancy in the election board, and no such officer known to the law as 
 a temporary judge. But the committee held that — 
 
 It takes but little to constitute an officer de facto as affects the right of the public. 
 The exercise of apparent authority under color of right, thus inviting public trust 
 and negativing the idea of usurpation, is sufficient. There need have been no vacancy 
 in the office claimed to be holden; indeed, no such office may have ever existed. 
 
FORTY-FIRST CONGRESS. 257 
 
 The Thirteenth Ward was also attacked. There was an excess of 9 
 ballots in the box over the number of names on the poll list, but the 
 testimony showed that this was due to the rush at the polls during^ part 
 of the day, rendering it impossible for the clerks to get down all the 
 names. There was loud talking and pushing and crowding at the polls 
 during the daj', but most of the testimony was to the effect that it was 
 not such as to ifttimidate anyone. Some of the witnesses thought that 
 from 3 to 8 persons were prevented from voting. It was also said that 
 the votes of some colored persons who were legal voters were rejected, 
 but the testimony was very unsatisfactorj^. But allowing contestant 
 the votes of all the colored voters in the ward, and of all that anyone 
 thought might have been prevented from voting, and deducting from 
 contestee the 9 extra votes, and the 25 votes in the other ward, con- 
 testee would still have a majority, and the committee recommended that 
 he retain his seat. 
 
 The House adopted the resolutions without debate or division. 
 
 [2 Bart., 897-904.] 
 
 (24) BoYDEN VS. Shobee. 
 
 Fraud; irregularities. Report for contestee. Contestee retained the 
 seat. 
 
 Report by Mr. McCrary. 
 
 Contestant charged that voters were misled by a forged circular and 
 deterred from voting by threats and intimidation, and that illiterate 
 voters were deceived by pasting the names of the Democratic candi- 
 dates on Republican ballots. The committee found that votes were 
 probably lost to contestant from all these causes, but there was nothing 
 to connect contestee with the wrongful acts, or to show that enough 
 votes were affected to change the result. It was also claimed that the 
 election was void because only one ballot box was provided at each 
 poll, instead of two, as required by law. There was some doubt as to 
 the construction of the law, but conceding the construction contended 
 for by contestant, the law was merely directory, and irregularity in 
 its observance ought not to void the election. 
 
 There were charges against the regularity of the credentials of con- 
 testee, but that question bad been settled by the action of the House 
 in permitting him to be sworn in. Contestee was unable to take the 
 "ironclad oath," but his disabilities had been removed by act of 
 Congress. 
 
 The committee recommended that contestee retain his seat, and the 
 House agreed without division. 
 
 [2 Bart., 904r-906.] 
 
 (26) Sheafe vs. Tillman. 
 
 Fraud; intimidation; irregularities. Majority report for contestee; 
 minority report fm' contestant. Contestee retained the seat. 
 
 Majority report by Mr. Brooks; minority report by JMr. Dox. 
 
 According to the vote as returned contestant had a majority of 
 1,156 votes, but the governor rejected one county and parts of several 
 other counties, and gave the certificate to contestee, who had a majority 
 of 432 votes in the remainder of the district. The committee were 
 
 H. Doc. 510 17 
 
258 DIGEST OF CONTESTED ELECTION OASES. 
 
 unaninioas in holding that the governor had no such power to reject 
 counties and precincts, but on the question whether, under the evi- 
 dence, they ought to be rejected by the House, they differed. 
 
 In the county of Lincoln the registration had been set aside by a 
 proclamation of the governor, issued under the law authorizing him to 
 remove I'egistrars and set aside registrations. Under the law the elec- 
 tion was to be held in each county under the direction of the super- 
 intendent of registration and by officers chosen by him. The registrar 
 took the place of the sheriff under the old law. Under the old law, if 
 the sheriff could not act the coroner was to take his place, or, in his 
 absence, some person appointed by the county court. There was a 
 general impression in this county that the superintendent of registra- 
 tion had been removed, and that therefore no legal election could be 
 held, and many voters remained away from the polls. The county 
 court the day before the election appointed the coroner to organize 
 the election, and he held an election in seven of the twenty-five dis- 
 tricts of the county. Contestant received all but five of the votes that 
 were cast. The committee threw out ' this county. If the governor 
 had, as was contended, no constitutional power to remove the registrar, 
 then he was still in office and was the only officer competent to hold 
 the election. If he was constitutionally removed, the countj' court 
 had no right to appoint the coroner in his place, for by the new law 
 the appointment of all such officers was vested wholh' in the governor, 
 and all laws in conflict therewith were repealed. The coroner was 
 not even an officer de facto, for he did not hold his office under color 
 of legal authority ; he was a mere usurper and all his acts were void. He 
 was chosen by the court so late that no due notice of the election was 
 given; the election was only held in a small part of the county and 
 many voters refrained from voting; and it further appeared that the 
 Kuklux Klan was organized in this county and intimidated voters. 
 On all these accounts the committee rejected the vote of the county. 
 
 Precincts in a number of other counties were thrown out by the 
 go\'ernor because the election officers did not appear to ha\e been 
 sworn. The committee adhered to the ruling in Barnes vk. Adams, 
 and held that it was not imperative that the officers should be sworn 
 where there was no fraud, but in each of these counties it was shown 
 that the Kuklux Klan had appeared and committed outrages during 
 the summer preceding the election, and under such circumstances the 
 committee thought that the precincts where the election was not con- 
 ducted strictly according to law should be thrown out. Throwing out 
 all these votes, contestee had a majority of 296 votes, and the com- 
 mittee recommended that he retain the seat. 
 
 , The minority disagreed. The election in Lincoln County was strictly 
 in accordance with law. The registrar was given by the law all the 
 power relating to elections formerly belonging to the sheriff, but the 
 law substituting the coroner for the sheriff', in his absence, or empower- 
 ing the county court to fill a vacancy had not been repealed. ' It M^as 
 admitted l)y contestee that the two "or three thousand voters who did 
 not vote in this county on account of the action of the governor in set- 
 ting aside the registration would have voted for contestant. This 
 action had been decided by the supreme court of the State to be uncon- 
 stitutional. There was no evidence that Kuklux outrages in this dis- 
 trict intimidated enough votes to affect the result of the election. It 
 was doubtful in any case if they would have had an effect fa\'orable 
 
FOKTY-FIBST CONGRESS. 259 
 
 to contestant, as he had throughout the canvass' denounced this organi- 
 zation. The minority recommended the seating of contestant. 
 
 The House, by a vote of 123 to 60, adopted the resolutions recom- 
 mended by the majority, and contestee retained the seat. 
 
 [2 Bart., 907-922.] 
 
 (26) Shields w. Van Horn. 
 
 Fraudulent registration. Majority report for contestee; minority 
 report for contestant. Contestee retained the seat. 
 
 Majority report by Mr. Churchill; minority report by Mr. Burr. 
 
 According to the returns, contestant had a majority of 983 votes, 
 but the secretary of state of Missouri threw out the votes of two 
 counties, thereby giving to contestee a majority of 867 votes. The 
 committee were unanimous in holding that this action of the secretary 
 of state was illegal, and it had been so decided by the supreme court 
 of the State. But contestee claimed that one of these two counties 
 ought to be rejected by the House on account of fraudulent registration. 
 It appeared that Mr. Phelan, the superintendent of registration for 
 the senatorial district of which this county was a part, had been 
 appointed by the governor as a Republican, and had represented him- 
 self as such an extreme Republican that the governor at first hesitated 
 to appoint him, and cautioned him not to be unjustly stringent in the 
 enforcement of the law. Mr. Phelan appointed three Republicans as 
 the board of registration in Jackson County, and tried to induce them 
 to adopt rrles more stringent than the law required. He tried to get 
 the nomination for sherifl' on the Republican ticket, and failing in this, 
 he became very angry, and threatened to have revenge. He then, for 
 a money consideration, agreed with the Democrats to manage the regis- 
 tration for their benefit. He removed his Republican appointees and 
 appointed Democrats in their places, one of them being a party to the 
 corrupt arrangement. These registrars failed to follow the law, which 
 required them to examine all applicants to see if they had been guilty 
 of any of the disqualifying acts, and registered all applicants who would 
 take the oath of loyalty. The result was that they registered 5,186 
 ifames, while only 2,284 were registered at the prior, and 2,967 at the 
 subsequent, registration. There was in addition specific proof that a 
 considerable number of the persons registered were disqualified. 
 Throwing out the vote of this county contestee still had a majority, 
 and the committee recommended that he retain the seat. 
 
 The minority (Mr. Burr) held that the vote of Jackson CoUnty 
 should be counted. The action of the secretary of state in rejecting 
 it was clearly illegal, and it was prima facie legal. The evidence as 
 to the alleged corruption of Superintendent Phelan was very confused 
 and unsatisfactory. The persons appointed by him were shown to be 
 of good character. The weight of the evidence showed that they fol- 
 lowed the law in registering applicants. The evidence that persons 
 were registered who were disqualified was vague and inconclusive. If 
 contestee and his friends desired to object to the registration of any- 
 one they were required by the law to make their objections to t;he 
 registering officers at the time of registering, and they should have 
 done it then. 
 
 The House adopted the resolution presented by the committee with- 
 out division, and contestee retained the seat. 
 
 [2 Bart., 922-941.] 
 
260 DIGEST OF CONTESTED ELECTION CASES. 
 
 (27) KODGEKS. 
 
 Claim, f<rr additional rejyresentation. Mxijf/rlty report favorable; 
 iii.inority report advene. No action Try tits Iloum:. 
 
 Majority report by Mr. Heaton; minority report by Mr. Churchill. 
 
 The facts in this case were the same a.s those in the case of Hamil- 
 ton, in the Fortieth Congi'ess, and the arguments advanced for and 
 against the claim were the same, the only difference being that in this 
 case the majority report was the favorable one and the minority 
 report adverse. There was no action by the House. 
 
 [2 Bart., 941-950.] 
 
FOETY-SECOND CONGRESS. 261 
 
 FORTY-SECOND CONGRESS, 1871-1873. 
 
 Committee on Elections^ first session. 
 
 Mr. McCrary, Iowa, Mr. Kerr, Indiana, 
 
 Hale, Maine, Potter, New York, 
 
 Poland, Vermont, Arthur, Kentucky, 
 
 Upson, Ohio, Thomas, North Carolina 
 
 Mr. Hazelton, Wisconsin. 
 
 Committee on Elections, second session. 
 
 Mr. McCrary, Iowa, Mr. Arthur, Kentuckj^, 
 
 Hoar, Massachusetts, Merrick, Maryland, 
 
 Eames, Rhode Island, Rice, Illinois, 
 
 Hazelton, Wisconsin, Thomas, North Carolina, 
 
 Mr. Perry, Ohio. 
 
 (Mr. Perry was excused from further service on the committeee, 
 and Mr. Charles Foster, of Ohio, appointed in his place.) 
 
 Cases. 
 
 (1) Tennessee election. 
 
 (2) W. T. Clarke, Texas. 
 
 (3) Thomas Boles vs. John Edwards, Arhinsas. 
 
 (4) Lewis McKenzie vs. Elliott M. Braxton, Virginia. 
 
 (5) Election frauds in Arkansas. 
 
 (6) John Cessna vs. Benjamin F. Meyers, Pennsylvania. 
 
 (7) B. W. Norris vs. W. A. Handley, Alabama. 
 
 (8) David S. Gooding vs. Jeremiah 'M. Wilson, Indiana. 
 
 (9) W. A. Burleigh and S. L. Spink vs. M. K. Armsti-ong, Dakota 
 Territory. 
 
 (10) D. C. Giddings vs. W. T. Clarke, Texas. 
 
 (11) Isaac G. McKissick vs. Alexander Wallace, South Carolina. 
 
 (12) Christopher C. Bowen vs. Robert C. De Large, South Caro- 
 lina. 
 
 (13) Silas L. Niblack vs. Josiah T. Walls, Flmnda. 
 
 (14) J. Hale Sypher, Louisiana. 
 
 (1) Tennessee Election. 
 
 Date of holding election. Election held valid. 
 
 Report by Mr. McCrary. 
 
 The members returned from the State of Tennessee were elected at 
 an election held November 8, 1870. A protest was filed against their 
 right to their seats on the ground that by the law of Tennessee in 
 force at the time of the election the election should have been held in 
 August, 1871. The code of Tennessee, adopted in 1858, fixed the 
 time for the election of Representatives in Congress "on the first 
 Thursday in August in every second year, dating from August, 1833." 
 
262 DIGEST OF CONTESTED ELECTION CASES. 
 
 By an act of 1868 it was provided that the elections should there- 
 after be held in November, and it was under this act that the election 
 was held. It was contended that bj' an act approved June 16, 1870, 
 this law had been repealed and that ol 1858 reenacted. The committee 
 held that if this contention could be sustained "the election in ques- 
 tion was void, as having been held on the wrong day." An examina- 
 tion of the legislation in question showed, however, that such could 
 not have been the legislative intent. The act of 1870 was entitled 
 "An act to regulate the elective franchise in accordance with article 
 4, section 1, of the constitution of the State." The second section of 
 the act in terms repealed three separate acts regulating the elective 
 franchise, but did not include the act of 1868 fixing November as 
 the time for holding Congressional elections.' The third section 
 was, "That title 6, chapter 2, articles 3, 4, 5, 6, 7, and 8 of the code 
 of Tennessee, relating to elections by the people, be, and the same 
 are hereby, reenacted and revived, except as altered or i-epealed bj' 
 this act." The provision fixing elections in August is included in the 
 portion of the code of 1858 above named. 
 
 The constitution of Tennessee contained the following provision: 
 
 No bill shall become a law which embraces more than one subject; that subject to 
 be expressed in the title. All acts which repeal, revi\'e, or amend former laws shall 
 recite in their caption, or otherwise, the title or substance of the law repealed, 
 revived, or amended. 
 
 The committee held that if the intent was to reenact all the provi- 
 sions of the above-named articles of the code, the intent must have 
 been to violate the constitution in several important particulars. These 
 articles contained provisions upon several subjects connected with 
 "elections by the people," whereas the repealing and reenacting act 
 of 1870 was by title and substance "An act to regulate the elective 
 franchise," and under the constitution of Tennessee should be con- 
 strued in harmony with its title. It did not, by title or otherwise, 
 mention the act of 1868 as being repealed, and did not by title or sub- 
 stance, but only by section and article, mention the portions of the 
 code of 1858 reenacted. These portions of the code contained provi- 
 sions fixing the time for the elections of State officers difl'erent from 
 that now fixed by the constitution itself, and to this extent, at least, 
 could not be constitutionally revived. Hence the provisions of the 
 chapter and articles of the code referred to could not ha^e been intended 
 to be revived in toto. The intention must have been to re\ive only 
 such portions as referred to the subject mentioned in the title of the 
 act of 1870, and thus construed it could not have had the effect of 
 repealing the act of 1868 and reviving that of 1858 in regard to the 
 time of holding elections. This opinion was strengthened by the fact 
 that the act had been similarly construed by all the authorities of Ten- 
 nessee having anything to do with its construction and enforcement. 
 
 The opinion was expressed by the committee that the constitutional 
 provision that "no bill shall become a law which embraces more than 
 one subject, that subject to be expressed in the title," was mandatorv, 
 and that those portions of any law not included in the subject expressed 
 in the title would be void. Jn regard to construction of State laws bv 
 State authorities it was said: 
 
 It is a well established and most salutary rule that where the proper authorities 
 of the State government have given a construction to their own constitution or stat- 
 utes, that construction will be followed by the Federal authorities. This rule is 
 
FORTY-SECOND CONGRESS. 263 
 
 absolutely necessary to the harmonious working of our complex governments, Htate 
 and national, asid your committee are not disposed to be the first to depart from it. 
 
 The committee were unanimous in their decision, and it was sustained 
 by the House, without division, April 11, 1870. 
 [Smith, 3-6.] 
 
 {ii) W. T. Clark. 
 
 Pruna facie case. {For case on merits see Gicldim/s vs. CUirl-., j>f>st.) 
 Swffi<yier).cy of certificate of the governor of Te.rcw. 
 
 Majority report by Mr. Hoar; minority report by Mr. Rice. 
 
 On the iirst daj^ of the session the credentials of Mr. Clark were 
 presented Ijy Mr. McCrary, with the statement that they were not in 
 the usual form. The credentials were referred to the Committee on 
 Elections. The majority of the committee reported in favor of the 
 prima facie right of Mr. Clark to the seat, the minority in favor of 
 D. C. Giddings, his competitor. The House, after some discussion, 
 adopted the conclusions of the majority by a vote of 102 to 78. 
 
 Under the laws of Texas the precinct officers were to make out 
 their returns and transmit them to the governor and secretarj" of 
 state. If there should have been intimidation or corruption, they 
 were to include with the returns a statement to that effect, made under 
 oath, and corroborated by the oaths of three citizens. The returns 
 were to be tabulated by the secretary of state, in the presence of the 
 f^overnor and attorney-general, first setting down the votes of the 
 precincts where the election is not com^plained of. They were then to 
 examine the returns from the precincts from which the}' were accom- 
 panied by statements of violence or corruption, and if these would 
 not change the result, they were to be canvassed and compiled. If 
 they would change the result, the retiring officers were to examine 
 further testimony with power to send for persons and papers, and if 
 such illegalities were shown as to materially afl'ect the result, they 
 were to reject the returns from the precincts where they occurred. 
 The governor, acting under this law, had furnished a certificate to 
 Mr. Clark, certifying him to be elected, and including a tabular cop}^ 
 of the returns, with remarks as to the causes of the rejection of cer- 
 tain returns. It did not appear on the face of this certificate that any 
 protests had been filed with the returns from the rejected precincts, 
 and it did appear that if all the returns had been counted bj^ the 
 governor Mr. Giddings would have had the majority. 
 
 It was questioned whether this law was intended to apply to elections 
 for members of Congress, the only provision expressly mentioning such 
 elections being one providing that " a certificate of the returns of the 
 election for such Representatives shall be entered of record by the 
 secretary of state and signed by the governor," and a copy delivered 
 to the person elected and another sent to the Clerk of the House. 
 But another section of the act provided that it should apply to "all 
 officers whose election is not otherwise provided for." 
 
 The majority of the committee held that the act did apply to Con- 
 
 fressional elections, and that the judicial powers thereby granted, 
 aving been exercised by the returning board, and a certificate of the 
 result of their decision having been forwarded by the governor, it 
 was sufficient j3Wma_/aCTe evidence of the right to the seat. Although 
 it did not appear that the questions upon which the returns were 
 
264 DIGEST OF CONTESTED ELECTION CASES. 
 
 rejected came before the returning board in the manner prescribed by 
 law, in the absence of contrary proof the proceedings were presumed 
 to be legal. 
 
 It is enough for a. prima facie case if tiie certificate came.from the proper officer of 
 the State, and clearly shows that the person claiming under it has been adjudged to 
 be duly elected by the official or board on whom the law of the State has imposed 
 the duty of ascertaining and declaring the result. 
 
 The ijiinority of the committee denied the right of the governor to 
 issue any certificate of election at all, the law only providing that he 
 should forward "a certificate of the returns." The law giving the 
 State officers judicial power did not apply to Congressional elections. 
 The tabular statement of the vote included with the return of the 
 governor showed that Mr. Giddings had received a majority of the 
 votes cast, and the governor having no right to reject any of the votes, 
 Mr. Giddings had a prima facie right to the seat. Mr. Rice, the 
 author of the minority report, stated the principle on which it was 
 based more clearly in the debate than in the report. He said: 
 
 I undertake to say that the law is this: That a certificate of election given by an 
 officer authorized by law to give it, when it contains nothing more than the declara- 
 tion that the party to whom it was given was duly elected to an office, is prima fade 
 evidence that a party holding it was duly elected and has a right to such office. 
 But I maintain further that when it contains facts upon which its conclusion is 
 based, showing that conclusion to be false, such facts destroy the legality of the 
 certificate, and it is thereby bad to all intents and purposes as a certificate of elec- 
 tion. (Congressional Globe, vol. 87, p. 341, January 10, 1872.) 
 
 [Smith, 6-17.] 
 
 (3) Boles vs. Edwards. 
 
 Prima facie case. Gontestee admitted. Case on merits; testimony 
 offe/ired hy contestee excluded, and seat given to cmitestant. 
 
 Reports by Mr. Hazelton. 
 
 The name of neither party was put on the roll by the Clerk of the 
 House. Mr. Edwards seems to have had a certificate of election, and 
 Mr. Boles certified copies of the returns showing that he had received 
 the majority ^of the votes. The credentials were referred to the Com- 
 mittee on Elections, which reported that Mr. Edwards, having the 
 certificate of election, was entitled to the seat pending the contest. 
 He was sworn in. Mr. Boles then served a notice of contest, and took 
 testimony regularly, within the sixty days. Before he served his 
 answer, Mr. Edwards introduced a resolution in the House extending 
 the time for taking testimony sixty days. This was referred to the 
 Committee on Elections, but no action was had. Mr. Edwards took 
 no testimony, and at the end of the sixty days made application for 
 further time, resting his application on the ground that contestant had 
 taken testimony during the whole sixty days, and that it had been 
 necessary for him to attend at the taking of "the testimonjr, so that he 
 had had no time to prepare his own case. But it appeared that he had 
 only attended at the taking of the testimony once, and then for only a 
 few minutes, and the committee unanimously reported that inasmuch 
 as the law permitted both parties to take testimony at the same time, 
 and only provided for an extension of time by the House for taking 
 supplementary testimony, the application should be refused. 
 
 The policy of the House has been adverse to granting extensions. Procrastination 
 in these cases diminishes the object of the investigation and cheapens the value of 
 
FORTY-SECOND CONGRESS. 265 
 
 the final decision. The law is intended to furnish ample opportunity for taking tes- 
 timony. Parties should be held to a rigid rule of diligence under it, and no t-xtension 
 ought to be allowed where there is reason to believe that had the applicant brought 
 himself within such rule there would have been no occasion for the application. 
 
 The case coming before the committee on its merits, the contestee 
 submitted as his evidence the report of a joint select committee of the 
 legislature of Arkansas, and a decision of the supreme court of 
 Arkansas, both having reference to the election in Pulaski County. 
 The committee unanimously rejected them as evidence, because one of 
 them was not a judicial decision, neither of them was in a proceeding 
 between the parties to the present case, and it would be a delegation 
 of the judicial power of the House to permit another body to discharge 
 its duties. The case, therefore, came before the committee on the tes- 
 timony of contestant. It appeared that contestant had a majority of 
 2 votes outside of Pulaski County, and a very large majority in that 
 county; so even, allowing the claims of contestee, and either rejecting 
 Pulaski County entirely or counting its vote on either of several 
 plans suggested in his "testimony," the contestant would be entitled 
 to the seat. 
 
 The resolutions presented were adopted without opposition, and Mr. 
 Boles took his seat. 
 
 [Smith, 18, 19; 58, 59.] 
 
 (4) McKenzie vs. Bkaxton. 
 
 Imperfect ballots,' numbered iallots; uncertified returns. Sitting 
 memher retained the seat. 
 
 Report by Mr. McCrary. 
 
 According to the official table of votes as certified by the State board 
 of canvassers, votes were cast for Elliott M. Braxton, Lewis McKenzie, 
 E. M. Braxton, and L. McKenzie. The board had counted the votes 
 containing only the initials of the candidates as well as those containing 
 the full names, and awarded the certificate to Braxton. Contestant 
 denied the correctness of the decision, and also claimed to have proved, 
 by copies of the returns and other evidence, that votes were cast for 
 Elliott Braxton and C. M. Braxton and Braxton in addition to those 
 included in the official canvass. He also attacked certain precincts on 
 the ground that the returns were not certified, and others because the 
 ballots had been numbered by the judges. He had originally charged 
 also intimidation, violence, and fraud, but conceded that he had not 
 established the charges. The committee found without hesitation that 
 the ballots giving the true initials, E. M. Braxton, were sufficient, and 
 also that those containing the name Elliott Braxton should be counted, 
 both because the intention of the voter was clearly proved and because 
 the law knows only one Christian name. If these votes be counted, 
 and all the votes cast for C. M. Braxton and Braxton, all the precincts 
 from which the returns were not certified, and all the precincts men- 
 tioned in the notice of contest where the ballots were numbered be 
 rejected, contestee has still a majority. The committee were, however, 
 of the opinion that if a return was not certified the omission went no 
 further than to destroy its value as primia facie evidence of the vote; if 
 the actual state of the vote was proved by other evidence, it should be 
 counted. The statute of Virginia in force until nearly the time of the 
 election had required the ballots to be numbered. It had been repealed, 
 
266 DIGEST OF CONTESTED ELECTION OASES. 
 
 but some of the judges, not knowing of the repeal, had numbered the 
 ballots. It was not claimed that the numbering was done for any 
 improper purpose, or that any harm had resulted, and the committee 
 were of the opinion that the votes should be counted. The cases of 
 the ballots cast for Braxton and alleged to have been cast for C. M. 
 Braxton were not decided, being immaterial. The committee unani- 
 mously reported in favor of the right of Mr. Braxton to retain the 
 seat, and the House passed the resolutions without opposition. 
 [Smith, 19-26.] 
 
 (5) Election frauds in Arkansas. 
 
 No onember of the House affected. 
 
 A joint committee of the Senate and House was appointed to inquire 
 into the condition of the insurrectionary States. It took certain testi- 
 mony in regard to the election in Pulaski County, Ark., and the issue 
 by Governor (now Senator) Powell Clayton of a certificate of election 
 to the Forty-second Congress, to Mr. Edwards, who was alleged to 
 have received only a minority of votes on the face of the returns. 
 This evidence they reported to their respective Houses with the state- 
 ment that it tended to impeach the official character of Senator Clay- 
 ton and to affect the right of Mr. Edwards to his seat. In the House 
 the evidence was referred to the Committee on Elections, and that 
 committee reported, as a part of the repoi-t in Boles vx. Edwards, 
 that the evidence reported contained "nothing reflecting on the char- 
 acter of any member of the House." As will be seen from the report 
 in that case, however, when the case was decided on its merits Mr. 
 Edwards was deprived of his seat. 
 
 [Smith, 26-58.] 
 
 (6) Cessna m. Meters. 
 
 Illegal votes, residence of i^aupers, stiuhnts. and ruilv\ty employees. 
 Sitting inemher retained the seat. 
 
 [As this case is typical of a large class of cases constantly arising, 
 and the report is the fullest and probably the best discussion of the 
 legal questions involved, the report is gi^•en in full. Part of it will l)e 
 found quoted in the appendix to the second edition of McCrarv on 
 Elections.] 
 
 [February 7. 1S712.] 
 
 Mr. Hoar, from the Committee of Elections, made the following 
 report: 
 
 Tlie Committee of Elections., to vjlimn iras referred the inentoried of 
 John Cessna, claiming to he admitted to tlw sent from the Si.vtn/iih 
 Congressional district of Pennsylvania, respectfully report: 
 
 The case has required the consideration of many ver}' interesting 
 questions of law, and an examination, by itself, of the' evidence in 
 regard to the right to vote of each of several hundred persons. The 
 committee have given it patient and thorough study. 
 
 The majority for the sitting member according to the returns, when 
 correctly added, is li. The contestant has shown that more than li 
 illegal votes were cast for his antagonist, and would have established 
 
FORTY-SECOND CONGRESS. 267 
 
 his claim to the seat were it not for illegal votes which were cast 
 for the contestant himself, the evidence of which, so far as appears, 
 first came to his knowledge when introduced in the case. The ques- 
 tions of law which have arisen are, some of them, exceedingly doubt- 
 ful, and there are statements of the law in the reports of previous 
 cases which would be quite likely to induce an expectation on the part 
 of the contestant of a different result in the whole matter. He seems, 
 therefore, to have been well warranted in the belief that his duty to 
 the people required him to claim the seat. The whole case has been 
 conducted with entire propriety on both sides. 
 
 The majority for the sitting member, as found by the return judges, 
 is 15. There is a mistake in the footing, and 1 should be deducted, 
 leaving H. The contestant claims that 328 illegal votes were cast for 
 the sitting member, that 2 lawful votes which were cast for himself 
 were not counted, and that 8 legal votes which were offered for him 
 were rejected. The sitting member, joining issue on these allegations, 
 claims also that 3il votes were illegally thrown for contestant. Of 
 these contestant admits that 81 have been proved to be illegal. 
 
 The provisions of the constitution of Pennsylvania concerning the 
 qualification of voters are as follows. 
 
 Article III, section 7. In elections by the citizens every (white) freeman of the 
 age of twenty-one years, having resided in this State one year, and in the election dis- 
 trict where he offers to vote ten days immediately preceding such election, and within 
 two years paid a State or county tax, which shall have been assessed at least ten days 
 before the election, shall enjoy the rights of an elector. But a citizen of the United 
 States who had previously been a qualified voter of this State, and removed therefrom 
 and returned, and who shall have resided in the election district and paid taxes as 
 aforesaid, shall be entitled to vote after residing in the State six months: Prodded, 
 That (white) freemen citizens of the United States, between the ages of twenty-one 
 and twenty-two years, and having resided in the State one year and in the election 
 district ten days as aforesaid, shall be entitled to vote although they shall not have 
 paid taxes. 
 
 The contestant claims, first, that he received a majority of the 
 votes cast at the election by lawfully qualified" voters; and, second, that 
 the votes of certain other persons, lawfully qualified, who desired to 
 vote for him were excluded, either from the box or the count, bj^ the 
 mistake or misconduct of the election officers. The result to which an 
 examination of the first claim has brought us renders it needless to con- 
 sider the second. 
 
 The questions which it is material to consider relate either to the 
 qualification of voters, under the clause in the constitution of Pennsyl- 
 vania just cited, or to the rules of evidence which should govern the 
 House in election cases. 
 
 Under these constitutional provisions the burden of proof, when 
 either party insists that a vote should be deducted from those cast and 
 returned for his competitor, is upon that party to show that the person 
 whose vote is in question voted; that the vote was for the competitor; 
 that the voter lacked some of the following qualifications, viz: Citizen- 
 ship of the United States, the age of 21, residence in the election dis- 
 trict for ten days just previous to the election, residence in the State 
 one year just previous to the election, or for six months if previously 
 a qualified voter, payment within two years of a State or county tax, 
 assessed at least ten days before the election, or, in lieu thereof, being 
 between 21 and 22 years old. 
 
 It is claimed by the contestant that a considerable number of those 
 
268 DIGEST OP CONTESTED ELECTION CASES. 
 
 who voted f oi' his competitor lacked the qualification of residence in 
 the election district, 'i'he largest number to whom this objection applies 
 came into the election district for the purpose of working upon a rail- 
 road in process of construction therein, were employed in building 
 said railroad, and were not proved to have formed any intention to 
 reside in the district after its completion. The length of time which 
 the completion of the road would be likely to occupy was not dis- 
 tinctly proved, but it is shown that persons who were in fact at work 
 upon it continued in the district for a longer period than eighteen 
 months. The committee have carefully considered the legal question 
 which is thus raised. 
 
 The word "residence" used in the constitution of Pennsylvania in 
 describing the qualification of voters is equivalent to "domicile," not 
 in the sense in which a -man may have a commercial domicile or resi- 
 dence in one country, while his domicile of origin and of allegiance is 
 in another, but in the broadest sense of the term. As it is upon the 
 meaning of this word that the case chiefly turns, it will be well to con- 
 sider it a little more fully. 
 
 The word "domicile" or "residence," as used in law, is incapable 
 of exact definition. Inquiries into it are very apt to be confused by 
 taking the tests which have been found satisfactory in some cases and 
 attempting to apply them as inflexible rules in all. Probably the 
 definition which is most expressive to the American mind is that a 
 man's domicile is "where he has his home." Two or three rules, 
 however, are well established. A man must have a domicile some- 
 where; a domicile once gained remains until a new one is acquired; no 
 man can have two domiciles at the same time. With these exceptions, 
 it will, we believe, be found that nearly every rule laid down on the 
 subject in the books, even if generally useful, fails to be of universal 
 application, a;nd would be opposed to the common sense of mankind if 
 extended to some states of fact that may arise. For instance, Vattel 
 defines domicile to be a fixed residence in any placi- loith an intention 
 of always staying there. On this Judge Story (Conflict of Laws, sec. 
 43) well remarks: 
 
 This is not an accurate statement. It would be more correct to say that that place 
 is properly the domicile of a person in which his habitation is fixed without any 
 present intention of removing therefrom. 
 
 But certainly Judge Story's definition is not much better. A man's 
 domicile remains after he forms the intention of removing therefrom, 
 and sometimes even after he removes, until he gets another. A man 
 may acquire a domicile, if he be personally present in a place and elect 
 that as his home, e^en if he never design to remain there always, but 
 design at the end of some short time to remove and acquire another. 
 A clergyman- of the Methodist Church who is settled for two years 
 may surely make his home for two years with his flock, although he 
 meant, at the end of that period, to remove and gain another. So of 
 the principle upon which the contestant most relies in the present case. 
 
 He claims-^and many expressions can be found used by commenta- 
 tors and in judicial decisions which seem to support the claim — that 
 personal presence in a place with intent to remain there only for a 
 limited time and for the accomplishment of a temporary purpose and 
 to depart when that purpose is accomplished, will not constitute a'resi- 
 dence. This is true as a general rule. It is true of those persons, 
 probably the greater number, who, while so present and engaged in 
 
FORTY-SECOND CONGRESS. 269 
 
 business, have some other principal seat of their interests and affec- 
 tions elsewhere. Most men have some permanent home, the claims of 
 which outweigh those of a place of temporary sojourn. The place 
 where a man's property is, where his family is, the place to which he 
 goes back from time to time whenever no temporary occasion calls 
 him elsewhei-e, the domicile of his origin, where the permanent and 
 ordinary business of his life is conducted — that is to the ordinary man 
 the place of his home. But we are now dealing with a class of persons 
 who have no property, who ha\'ft no family, or whose family moves 
 with them from place to place, who have no place to return to from 
 temporary absences, the domicile of whose origin is in another coun- 
 try, and has been in the most solemn manner renounced, and the ordi- 
 nary business of whose life consists in successive temporarj^ employ- 
 ments in different places. 
 
 Suppose a man, single, with no property, to come from Ireland and 
 be employed all his life on railroads or other like works in different 
 places in succession. If he does not acquire a residence he can never 
 become a citizen, because he never would reside in this country at all. 
 It seems to us that to such persons the general rule above stated does 
 not apply. But where a man who has no interests or relations in life 
 which afford a presumption that his home is elsewhere, comes into an 
 election district for the purpose of working on a railroad for a definite 
 or an indefinite period, being without family or having his family with 
 him, expecting that the question whether he shall remain or go else- 
 where is to depend upon the chances of his obtaining work, having 
 abandoned, both in fact and in intention, all former residences, and 
 intends to make that his home while his work lasts — that will consti- 
 tute his residence, both for the purpose of such jurisdiction over him 
 as residence confers and for the purpose of exercising his privileges 
 as a citizen. Of course the intent above supposed must be in good 
 faith and an intent to make such district the home for all purposes. 
 The party's intent to vote in the district where he is, he knowing all 
 the time that his home is elsewhei'e, will not answer the law. 
 
 The rule is stated b}' Chief Justice Shaw, in Lyman vs. Fiske(6 Peck, 
 234), as follows: 
 
 It is difficult to give an exact definition of liabitancy. In general terms, one may 
 be designated as an inhabitant of that place which constitutes the principal seat of 
 his residence, of his business pursuits, connections, attachments, and of his political 
 and municipal relations. It is manifest, therefore, that it embraces the fact of resi- 
 dence at a place with the intent to regard it his home. The act and the intent must 
 concur, and the intent may be inferred from declarations and conduct. It is often a 
 question of great difficulty, depending upon minute and complicated cii'cumstances, 
 leaving the question in so much doubt that a slight circumstance may turn the bal- 
 ance. In such a case the mere declaration of the party, made in good faith of his 
 election to make the one place rather than the other his home, would be 'sufficient 
 to turn the scale. 
 
 The article in the appendix to volume 4 of Dr. Lieber's Encyclopssdia 
 Americana, title Domicile, written by Judge Story, is perhaps the best 
 treatise on this subject to be found. He says: 
 
 In a strict and legal sense, that is properly the domicile of a person where he has 
 fixed his true permanent home and principal establishment, and to which, whenever 
 he is absent, he has the intention of returning. 
 
 It is often a mere question of intention. If a person has actually 
 removed to another place, with an intention of remaining there for an 
 indefinite time and as a place of present domicile, it becomes his place 
 
270 
 
 DIGEST OF CONTESTED ELECTION CASES. 
 
 of domicile, notwithstanding he may have a floating intention to go 
 back at some future period. A forthir't would this be true if his • ' float- 
 ing intention" were to go elsewhere in future and not to go back, as 
 in such case the abandonment of his former home would be complete. 
 In the AUentown election case (Brightly's Collection of the Leading 
 Cases on the Law of Elections of the United States, 475), it is said: 
 
 Unmarried men, who have fully severed the parental relation, and who have 
 entered the world to labor for themselves, usually acquire a residence in the district 
 where they are employed, if the election officers be satisfied they are honestly there 
 pursuing their employment, with no fixed residence elsewhere, and that they have 
 not come into the district as "colonizers" — that is, fo' the mere purpose pf voting, 
 and going elsewhere as soon as the election is held. The unmarried man who seeks 
 employment from point to point, as opportunity offers, arid who has severed the 
 parental relation, becomes a laborer, producing for himself, and thus adds to the 
 productive wealth of the community in which he resides, being willing not only to 
 enjoy political privileges, but also to assume and discharge political and civil duties. 
 
 A fortiori would this reasoning apply to the married laborer who 
 takes his family with him. 
 
 The habits of our people, compared with many other nations, are 
 migratory. To persons, especially 30ung men, in many most useful 
 occupations, the choice of a residence is often experimental and tem- 
 porary. The home is chosen with intent to retain it until the oppor- 
 tunity shall offer of a better. But if it be chosen as a home, and not 
 as a mere place of temporary sojourn, to which some other place, 
 which is more truly the principal seat of the affections or interests, 
 has a superior claim, we see not why the policy of the law should not 
 attach to it all the privileges which belong to residence, as it is quite 
 clear that it is the residence in the common and popular acceptation of 
 the term. 
 
 The case of Barnes vs. Adams (3 Con. El. Cas., 771 ') does not, when 
 carefully examined, conflict with these rules. The passage cited from 
 that case is not a statement of the grounds on which the House or 
 even the committee determined tlie case, but a concession to the party 
 against whom it was decided. It therefore, if it bore the meaning 
 contended for, would not be authority in future cases. But the lan- 
 guage taken together, it seems to us, means only that going into an 
 election precinct for a temporary purpose, with the intent to leave it 
 when that purpose is accomplished, no other intent and no other fact 
 appearing, is not enough to gain a residence. In this view, it is not 
 in conflict with the opinion here expressed. 
 
 It is true that, as was remarked in the outset, a former residence 
 continues until a new one is gained. But in determining the question 
 whether a new one has been gained, the fact that everything which 
 constituted the old one— dwelling house, personal presence, business 
 relations, intent to remain — has been abandoned, is a most significant 
 fact. 
 
 5. We have, then, to apply these principles to the evidence in the 
 case. 
 
 The contestant claims that three principal classes of persons who 
 voted for the sitting member were disqualified by reason of nonresi- 
 dence, viz, persons who came into the district for the purpose of work- 
 ing on the railroad; students at the university, who came from other 
 districts solely for the sake of pursuing their studies, and paupers 
 
 '2 Bart, 771. 
 
FORTY-SEOOND CONGKESS. 27l 
 
 supported in a poorhouse common to all the districts in the county, 
 who came to the poorhouse from another district, and voted in the 
 district where it is situated. 
 
 The cases of the railroad laborers and contractors should be disposed 
 of bj'^ the following rules: 
 
 1. Where no other fact appears than that a person, otherwise quali- 
 fied, came into the election district for the purpose of working on the 
 railroad for an indefinite period, or until it should be completed, and 
 voted at the election, it may or may not be true that his residence was 
 in the district. His vote having been accepted by the election ofiicers, 
 and the burden being on the other side to show that they erred, we 
 are not warranted in deducting the vote. 
 
 2. Where, in addition, it appears that such voter had no dwelling 
 house elsewhere, had his family with him, and himself considered the 
 voting place as his home until his work on the railroad should be over, 
 we consider his residence in the district affirmatively established. 
 
 3. On the other hand, where it appears that he elected to retain a 
 home, or left a family or a dwelling place elsewhere, or any other like 
 circumstances appear, negativing a residence in the voting precinct, 
 the vote should be deducted from the candidate for v hom it is proved 
 to have been cast. 
 
 The principles applicable to the students are not dissimilar. The 
 law, as it applies to this class of persons, is fully and admirably stated 
 by the supreme court of Massachusetts, in an opinion given to the 
 legislature, and reported in Fifth Metcalf, and which is cited with 
 approbation in nearly all the subsequent discussions of the subject. 
 Under the rule there laid down, the fact that the citizen came into the 
 place where he claims a residence for the sole purpose of pursuing his 
 studies at a school or college there situate, and has no design of remain- 
 ing there after his studies terminate, is not necessarily inconsistent with 
 a legal residence, or want of legal residence, in such place. This is to 
 be determined by all the circumstances of each case. Among such 
 circumstances, the intent of the party, the existence or absence of 
 other ties or interests elsewhere, the dwelling place of the parents, or, 
 in the case of an orphan just of age, of such near friends as he had 
 been accustomed to make his home with in his minority, would of 
 course be of the highest importance. (See Putnam ?«. Johnson, 10 
 Mass., 488.) 
 
 The case of the paupers presents greater difficulty. Under the laws 
 of Pennsylvania it is conceded they may be entitled to vote. In 
 several contested-election cases cited by the contestant it is stated by 
 the committee that, in the absence of statute regulations on the sub- 
 ject, a pauper abiding in a public almshouse, locally situated in a dif- 
 ferent district from that where he dwells when he becomes a pauper, 
 and by which he is supported, away from his original home, does not 
 thereby change his residence, but is held constructively to remain at his 
 old home. (Monroe vs. Jackson, 2 Elect. Cas. , 98 ' ; Covode 7',y. Foster,^ 
 Forty-first Congress; Taylor vs. Reading,^ Forty-first Congress.) 
 
 And there are some strong reasons for this opinion. The pauper is 
 under a species of confinement. He must submit to regulations 
 imposed by others and the place of his abode may be changed witTbiout 
 his consent. Having few of the other elements which ordinarily 
 
 1 1 Bart., 98. ■' 2 Bart. , 519, 600. ^ 2 Bart. , 661. 
 
272 DIGEST OF CONTESTED ELECTION CASES. 
 
 make up a domicile, the element of choice also in his case almost 
 wholly disappears. There are also serious reasons of expediency 
 against permitting a class of persons who are necessarily so dependent 
 upon the will of one public officer to vote in a town or district in whose 
 concerns they have no interest. On the other hand, the pauper's right 
 to vote is recognized by law. It can practically very seldom be exer- 
 cised except in the near neighborhood of the almshouse. _In the case 
 of a person so poor and helpless as to expect to be a lifelong inmate 
 of the poorhouse it is, in every sense in which the word can be used, 
 really and truly his residence — his home. And it is important that 
 these constitutional provisions as to suffrage should be carried out in 
 their simplest and most natural sense, without the introduction of arti- 
 ficial oi' technical construction. It will, however, be unnecessary to 
 determine this question, as will hereafter appear. 
 
 Another question of importance which has arisen in the discussion 
 of the cause is the question whether evidence of the declarations of 
 alleged voters, made not under oath, in the country, should be received 
 to show the fact that they voted, or for whom, or that they were not 
 legally entitled to vote. 
 
 Some of the committee think that such evidence ought in no case to 
 be admitted, except of course so far as declarations made at the time 
 of the party's intent or understanding as to his then present residence, 
 or his purpose in a removal, is admissible as part of the res gestce. All 
 of the committee are of opinion that such evidence is to be received 
 with the greatest caution, to be resorted to only when no better is to 
 be had, and only acted on when the declarations are clearly proved 
 and are themselves clear and satisfactory. As this question has been 
 quite fully considered it may be proper briefly to discuss it here. 
 
 While the practice of the English House of Commons is not uni- 
 form, the general current of the precedents is in favor of admitting 
 the declarations of voters as evidence. 
 
 The opinions of several American courts and of some text writei's 
 of approved authority are the same way. The correctness of this 
 practice has been earnestly questioned in this House, and there is one 
 decision against it; but, on the whole, the practice here seems to be in 
 favor of its admission. In England, where the vote for members of 
 Parliament is vira voc', the fact that the alleged voter voted, and for 
 whom, is susceptible -commonly of easy proof by the record. In one 
 case, however, where the poll list had been lost, the parol declaration 
 of a voter how he voted seems to have been received without question. 
 In State vs. Olin (23 Wis., 319) it is stated that the declaration of a 
 N'oter is admissible to prove that he voted, and for whom, as well as to 
 prove his disqualification. The general doctrine is usually put upon 
 the ground that the voter is a party to the proceeding, and his declara- 
 tions against the validity of his vote are to be admitted against him as 
 such. If this were true it would be quite clear that his declarations 
 ought not to be received until he is first shown, aliunde, not only to 
 have voted, but to have voted for the party against whom he is called. 
 Otherwise it would be in the power of an illegal voter to neutralize 
 wrongfully 2 of the votes cast for a political opponent — first, by vot- 
 ing 'for his own candidate; second, by asserting to some witness after- 
 wards that he voted the other way, and so having his vote deducted 
 from the party against whom it was cast. 
 
 But it is not true that a voter is a party in any such sense as that 
 
FOBTY-SECOND CONGRESS. 273 
 
 his declarations are admissible on that ground. He is not a party to 
 the record. His interest is not legal or personal. It is frequently 
 of the slightest possible nature. If he were a party, then his admis- 
 sions should be competent as to the whole case — as to the votes of oth- 
 ers, the conduct of the election officers, etc. , which it is well settled 
 they are not. Another reason given is that the inquiry is of a public 
 nature and that it should not be limited to the technical rules of 'evi- 
 dence established for private causes. This is doubtless true. It is an 
 inquiry of a public nature and an inquiry of the highest interest and 
 consequence to the public. Some rules of evidence applicable to such an 
 inquiry must be established. It is nowhere, so far as we know,claimed 
 that in any other particular the ordinary rules of evidence should be 
 relaxed in the determination of election cases. The sitting member is 
 a party deeply interested in the establishment of his right to an honor- 
 able office. The people of the district especially, and the people of the 
 whole country are interested in the question who shall have a voice in 
 framing the laws. The votes are received by election officers, who 
 see the voter in person, who act publicly in the presence of the people, 
 who may administer an oath to the persbn offering to vote, and who 
 are themselves sworn to the performance of their duties. The judg- 
 ment of these officers ought not to be reversed and the grave interests 
 of the people imperiled by the admissions of persons not under oath 
 and admitting their own misconduct. 
 
 The practice of admitting this Idnd of evidence originated in Eng- 
 land. So far as it has been adopted in this country it has been with- 
 out much discussion of the reasons on which it was founded. In 
 England, as has been said, the vote was vwa voce. The fact that the 
 party voted, and for whom, was susceptible of easy and undisputable 
 proof by the record. The privilege of voting for members of Parlia- 
 ment was a franchise of considerable dignity, enjoyed by few. It 
 commonly depended on the ownership of a freehold, the title to which 
 did not, as with us, appear on public registries, but would be seriously 
 endangered by admissions of the freeholder which disparaged it. An 
 admission by the voter of his own want of qualification was therefore 
 ordinarily an admission against his right to a special and rare fran- 
 chise, and an admission which seriously impaired his title to his real 
 estate, an admission so strongly against the interest of the party 
 making it would seldom be made unless it was trae. It furnishes no 
 analogy for a people who regard voting not as a privilege of the 
 few, but as the right of all; where the vote, instead of being vima 
 voce, is studiously protected from publicitj'^, and where such admis- 
 sions, instead of having every probability in favor of their truth, may 
 so easily be made the means of accomplishing great injustice and 
 fraud, without fear either of detection or punishment. 
 
 It may be said that the principle of the secret ballot protects the 
 voter from disclosing how he voted, and, in the absence of power to 
 compel him to testify and furnish the best evidence, renders the resort 
 to other evidence necessary. The committee are not prepared to admit 
 that the policy which shields the vote of the citizen from being made 
 known without his consent is of more importance than an inquiry into 
 the purity and result of the election itself. If it is, it can not protect 
 the illegal voter from disclosing how he voted. If it is, it would be 
 quite doubtful whether the same policy should not prevent the use of 
 the machinery of the law to discover and make public the fact in 
 
 H. Doc. 510 18 
 
274 DIGEST OF CONTESTED ELECTION CASES. 
 
 whatever way it may be proved. It is the publicity of the vote, not 
 the interrogation of the voter in regard to it, that the secret ballot is 
 designed to prevent. There would seem to be no need to resort to 
 hearsay evidence on this ground unless the voter has first been called, 
 and, being interrogated, asserts his privilege and refuses to answer. 
 Even in that case a still more conclusive objection to hearsay testi- 
 mony of this character is this: It is not at all likely to be either true or 
 trustworthy. 
 
 The rule that admits secondary evidence when the best can not be 
 had only admits evidence which can be relied on to prove the fact, as 
 sworn copies when an original is lost or the testimony of a witness to 
 the contents of a lost instrument. Hearsay evidence is not admitted 
 in such cases, and is only admitted in cases where hearsay evidence is, 
 in the ordinary experience of mankind, found to be generally correct, 
 as- in matters of pedigree and the like. But a man who is so anxious 
 to conceal how he voted as to refuse to disclose it on oath, even when 
 the disclosure is demanded in the interest ot public justice, and who is 
 presumed to have voted fraudulently — for otherwise in most cases the 
 inquiry is of no consequence — would be quite as likely to have made 
 false statements on the subject if he had made any. To permit such 
 statements to be received, to overcome the judgment of the election 
 oflScers, who admit the vote publicly, in the face of a challenge and 
 with the right to scrutinize the voter, would seem to be exceedingly 
 dangerous. 
 
 The action of the House heretofore does not seem to have been so 
 decided or uniform as to preclude it from now acting upon what may 
 seem to it the reasonable rule, even if it should think it best to reject 
 this class of evidence wholly. But as both parties have taken their 
 evidence, apparently with the expectation that this claws of evidence 
 would be received, and as, in view of the numerous and respectable 
 authorities, it is not unlikely the House may follow the English rule, 
 we have applied that to the evidence, with the limitation, of the rea- 
 sonableness of which it would seem there can be no question, that 
 evidence of hearsay declarations of the voter can only be acted upon 
 when the fact that he voted has been shown by evidence aliunde^ and 
 when the declarations have been clearl}- proved, and are themselves 
 clear and satisfactory. 
 
 The resultof the whole case, then, is as follows: 
 
 The majority for the sitting member, as returned, is li. 
 
 The contestant admits that 81 illegal votes were cast for him. But 
 as in 6 cases this admission seems to us to have been made on an erro- 
 neous view of the law, we have deducted from the contestant but 75 of 
 this number, leaving the majority for him to overcome 89. The sit- 
 ting member has proved that at least 15 of the votes cast for contest- 
 ant in addition to those admitted were illegal, which would leave to 
 the sitting member a majority of 104. 
 
 Assuming that all the persons who are alleged by contestant to have 
 voted for the sitting member did so vote; assuming that all those per- 
 sons who came into the election district to pursue their studies were 
 not legal voters in the district; assuming that all the paupers who were 
 committed to the almshouse from any other district than that where 
 they voted were not entitled to vote therein; receiving evidence of 
 declarations of persons in the country as to their disqualifications, and 
 ^ctmg upon them where they are corroborated by other evidence or as 
 
FOETY-SECOND CONGRESS. 275 
 
 clearly and satisfactorily proved, and in all these respects we take the 
 view of the law most favorable to contestant; deducting also from the 
 sitting member all votes cast by pei'sons not naturalized, or not of age, 
 or who had not paid a tax or dwelt the required time in the State, 
 ' but, on the other hand, not sustaining his claim that persons who came 
 into the district for the purpose of working on the railroad can not 
 be held to have acquired a residence there unless they are also shown 
 to have formed the intention of remaining there permanently after 
 the work was done, we find that the contestant has failed to overcome 
 the sitting member's maj ority of 101 , above stated. In dealing with the 
 evidence as to each of the numerous individuals — 679 in all — the com- 
 mittee formed different conclusions of fact in some instances; but tak- 
 ing the result in every case where the committee differed as to the 
 facts most favorable to the contestant, it is as above set forth. 
 The committee therefore recommend the accompanying resolution : 
 
 Resolved, That Benjamin F. Meyers is entitled to retain the seat which he now 
 holds from the Sixteenth Congressional district of Pennsylvania. 
 
 The resolution was adopted by the House without division; so Mr. 
 Meyers retained the seat. 
 [Smith, 60-68.] 
 
 (7) NoEEis vs. Handlet. 
 
 Violence, intimidation, and illegal rejection of returns. Charges not 
 suficiently sustained to overcome returned majority, and sitting member 
 retained the seat. 
 
 Report by Mr. McCrary. 
 
 According to the returns the sitting member had a majority of 3,142 
 votes. Contestant charged that the returns from a number of pre- 
 cincts where he had received a majority had been illegally rejected by 
 State and county canvassing boards, and that he had been deprived of 
 a large number of votes thi'oughout the district by violence, intimida- 
 tion, and fraud. On this latter charge the case turned, as the other 
 wrongs complained of did not in any case affect enough votes to over- 
 throw the majority returned. 
 
 The law empowered the board of county canvassers to throw out 
 precinct returns or portions of them "upon good and sufficient evi- 
 dence that fraud has been perpetrated or unlawful or wrongful means 
 resorted to to prevent electors from freely and fearlessly casting their 
 ballots;" this rejection "to be final unless appeal is taken within ten 
 days to the probate court." 
 
 The committee held that the fact that no appeal had been taken to 
 the probate court could not estop the House from investigating the 
 legality of the rejection of the votes or returns. Although the power 
 thus given to the county canvassing board was " extraordinary, not to 
 say dangerous," yet the action of the board under the statute must be 
 regai-ded as ^Wma/ffiae correct. The boards had in "this case, how- 
 ever, mostly acted upon insufficient evidence, and the committee upon 
 examination reversed most of their decisions. The State board of 
 canvassers had thrown out the vote of a county because the return 
 was signed by but one of the three county canvassers. This was 
 proper under the statute requiring it to be signed by a majority ; but 
 the House has power to go behind the return, and the committee. 
 
276 DIGEST OF CONTESTED ELECTION CASES. 
 
 from an examination of all the evidence, counted the vote of all but 
 one precinct of this county. In two other precincts voters had proba- 
 bly been deprived of their votes by deception; in one case by being 
 told that the supply of paper had run out and they could notbe regis- 
 tered, and in the other case by the circulation of Democratic tickets 
 with the heading "Republican ticket." But in both these cases the 
 evidence of the fraud was vague and indefinite and entirely failed to 
 show the number of votes affected, so no remedy could be applied. 
 
 The evidence relied on to establish intimidation was extremely vague 
 and unsatisfactory, consisting almost solely of hearsay and general rep- 
 utation. Not one witness testified that he himself was prevented from 
 voting by intimidation. "There can be no doubt that testimony of 
 this character ought to be held insufficient of itself to establish the 
 fact of intimidation. It ought at least to be corroborated by other 
 facts, such as the unexplained failure of large numbers of those alleged 
 to have been intimidated to vote, before the House could safely act 
 upon it." 
 
 But considering the testimony without regard to strict rules of law, 
 it clearly failed to sustain the charges. Outrages were proved to have 
 been committed for the purpose of intimidating the f reedmen, and they 
 are "'denounced as infamous" in the report; but if, in spite of these 
 occurrences, "if the f reedmen * * * did in fact vote, this is an 
 end of controversy." By comparing the number of votes cast with 
 the number of males over 21 in the district as shown by the census of 
 1870, just taken, it appeared that 88 per cent of the whole number voted. 
 This is a larger proportion than is usually found in peaceable elections. 
 In a number of precincts where a large number of negroes, presum- 
 ably Republicans, lived no votes were cast for Mr. Norris. But this 
 was explained by the fact that the negroes, for their own protection, 
 had adopted the plan of gathering at one or two precincts in each 
 county and casting their entire vote there. 
 
 The committee presented a resolution declaring that W. A. Handley 
 was entitled to retain his seat, which was passed by the House without 
 debate or division. 
 
 [Smith, 68-78.] 
 
 (8) Gooding vs. Wilson. 
 
 Unofficial recounts; illegal votes. Majority report in favor of sit- 
 ting member; minority report in favor of contestant. Sitting metnber 
 retained the seat. 
 
 Majority report by Mr. Perry; minority report by Mr. Arthur. 
 
 On the face of the returns the sitting member had a majority of 4 
 votes. 
 
 Contestant charged (1) that the election officers in a number of pre- 
 cincts giving a majority for contestee were not qualified; (2) that mis- 
 takes were made to the disadvantage of contestant in the official count 
 in several precincts, as shown by subsequent counts of the ballots; and 
 (3) illegal votes. 
 
 Contestee replied (1) that the election officers were not qualified in 
 at least an equal number of precincts giving a majority for the con- 
 testant; (2) that the recounts by which mistakes were sought to be 
 shown were unofficial and made under such circumstances as not to be 
 trustworthy; and (3) that illegal votes were cast for contestant. Other 
 
KOETY-SECOND CONGRESS. 277 
 
 questions of irregularity and illegality were raised by both sides, but 
 did not enter into the determination of the result. 
 
 The first specification above was abandoned by both sides; under the 
 third, taking the statement of results given in the minority report 
 most favorable to contestant, contestee would still have a majority of 
 2 votes; so the case turned on the second point, whether the official 
 count was to be set aside and the results of subsequent unofficial counts 
 accepted in its stead. The majority report called attention to the fact 
 that no person had ever been deprived of his seat in the House by the 
 result of subsequent unofficial counts, though there were some case^ 
 in which it was stated that under some circumstances such counts might 
 be accepted.^ 
 
 The conditions under which a recount could be accepted were thus 
 stated in the majority report: 
 
 On principle it would seem that if such a thing were, in the absence of fraud in the 
 official count, in any case admissible, it should be permitted only when the ballot 
 boxes had been so kept as to be conclusive of the identity of the ballots and when 
 the subsequent count was made with safeguards equivalent to those provided bylaw. 
 
 To these two conditions Judge McCrary, in the debate, added a third, 
 that it should affirmatively appear that the boxes have been preserved 
 by the officers required by the State law to preserve them andin a man- 
 ner in all respects in strict compliance with that law. The doctrine of the 
 minority, as brought out more clearly in the debate than in the report, 
 was substantially as follows: The official count \b prima facie correct, 
 but it may be overthrown by evidence, especially when there are cir- 
 cumstances indicating the probability of a mistake. A recount prop- 
 erly conducted is such evidence, and there is no presumption of fraud 
 in such a recount or in the keeping of the ballots previous to it. To 
 establish such presumption of fraud the party denying the correctness 
 of the recount must show circumstances indicating not merely that 
 fraud could have been committed, but that there was at least a proba- 
 bility that it actually was committed. 
 
 Applying the law as laid down by the majority to the facts in this 
 case, none of the recounts could be accepted. In no case was the bal- 
 lot box preserved by the officer in whose custody the law placed it, 
 and in each case it was so preserved that it could easily have been tam- 
 pered with, though in only one case was there any evidence in any way 
 indicating that it had been tampered with. In that case the ballot box 
 had an imperfect lock. It was twice found open and the tally sheets 
 in some way disappeared from it. In another case the recount was 
 made by the inspector. He had forgotten what its result was, but , 
 told several people at the time, who swear to what he told them. He 
 swears that he supposes they testified correctly, but that he believes 
 the official count was the correct one. In another case there were 
 three unofficial counts, all differing from each other and from the offi- 
 cial count. The official count was carefully made. In another case 
 there were two unofficial counts, one made by the officer in charge of 
 the box, sustaining the official count, and the other made by a friend 
 of contestant, after the box had left the custody of the officer in charge 
 of it, showing a gain of 2 votes for contestant. The only other case is 
 more interesting. The law required two tally sheets to be kept, one 
 
 ' Since that time, however, at least one person has been deprived of his seat upon 
 such evidence. English vs. Peelle, 48th Congress, Mobley, 171. 
 
278 DIGEST OF CONTESTED ELECTION CASES. 
 
 to be filed with the clerk of the court, the other to be kept in the ballot 
 "box. Two certified copies of the tally sheet in the clerk's office showed 
 three marks (thus ///), apparently counted, like the other sets of marks 
 (thus rW), as 5. The other tally sheet was not produced, and seems to 
 have disappeared from the ballot box. The only witness called testi- 
 fied somewhat vaguely that both tally sheets were alike. The official 
 count was in accordance with the footing of the tally sheet in evidence, 
 giving 2 more votes for contestee than the number of marks after his 
 name on the tally sheet. The ballots were not produced, or examined 
 by anyone, and the officer of election who first noticed the peculiarity 
 of the tally sheet (some time after the election) was not called. The 
 committee said: 
 
 It is clear that if there was a mistake it could have been, and should have been, 
 better proved. 
 
 All these recounts were accepted by the minority in their report, 
 but the circumstances were not detailed or arguments given. They 
 were all rejected by the majority. The majority found that of the 35 
 illegal votes charged to have been cast for contestee 4 were illegal and 
 of the 28 charged to have been cast for contestant 8 were illegal. The 
 minority found 9 illegal votes for contestee and 7 for contestant. Two 
 votes counted for contestee were ballots bearing simply the name 
 "Wilson." They were counted by the majority and rejected by the 
 minority. The return from one precinct giving 89 majority for con- 
 testant was not certified, and the testimony relied on to establish the 
 vote was not technically admissible, but the vote was counted in both 
 reports. 
 
 After some debate, the resolutions proposed by the minority were 
 rejected by a vote of 64 to 105, and that presented by the majority 
 adopted without division. 
 
 [Smith, 79-88.] 
 
 (9) BUELEIGH AND SpINK VS. ArMSTEONG. 
 
 Illegal votes. Elections held on Tnilitary and Indian reservations. 
 Sitting Delegate retained the seat. 
 
 Report by Mr. Merrick. 
 
 The vote as returned was: Spink, 1,023; Burleigh 1,102; Armstrong, 
 1,198. Contestants alleged that the elections held on military and 
 Indian reservations were illegal, and that large numbers of votes of 
 -Indians and nonresidents had been cast. The law organizing the Terri- 
 tory of Dakota provided that the territory which by treaties with Indian 
 tribes was not to be made part of any State or Territox-y without the 
 consent of those tribes should not become a part of the Territory until 
 the consent of. the tribes was obtained. 
 
 It is quite apparent from the terms of this organic act that it was not competent 
 for the authorities of the Territory to hold an election or exercise any other jurisdic- 
 tional act within any part of the Indian reservation. 
 
 The votes cast in these reservations were excluded. 
 
 But with regard to the election held within the military reservations of Fort Sully 
 and Fort Eandall (or the Ellis precinct), the committee have reached the conclusion 
 that there is nothing in the terms of the organic act nor in the general policy of the 
 law forbidding an election to be held at such places. The contestants have insisted 
 that the rule which disqualifies persons from voting within any State who reside 
 within forts or other territory to which the title and jurisdiction has been ceded 
 by the State to the Federal Govemment applies to the military reservations which 
 
FORTY-SECOND 0ONGEE88. 279 
 
 have been designated by the Executive within the Territories belonging to the 
 United States. But forasmuch as there is no conflict of sovereignty between the 
 Government and the Territory, and the latter holds all its jurisdiction and subordi- 
 nation to the controlling power of Congress, and the military reservations are not per- 
 manently severed from the body of the public lands, but are simply set apart and 
 withheld from private ownership by an Executive order to the Commissioner of the 
 Land Office, and may be and often are restored to the common stock of the public 
 domain when the occasion for their temporary occupancy has ceased at the pleasure 
 of Congress, and which requires no concurrent act of any State authority to give 
 it efficacy, the residents upon such reservations, although abiding thereon by the 
 mere sufferance of the United States authorities, do not in any just sense cease to be 
 inhabitants or residents of the Territory within which such military reservation may 
 be situated. 
 
 A large number of illegal votes were charged to have been and prob- 
 ably were cast, as was to nave been expected from the condition of any 
 frontier country. But so far as appears they were not cast for one 
 candidate more than another. There was nothing connecting any of the 
 candidates with procuring them to be cast, and deducting all in regard 
 to which there was definite proof , the sitting member still had a majority. 
 The House concurred in the opinion of the committee without division. 
 
 [Smith, 89-91.] 
 
 (10) GlDDINGS vs. ClAEK. 
 
 Application of sitting Tnemher for further time refused. Decision 
 of the State canvassing idard rejecting, returns reviewed, and votes 
 restored when sustained oy evtdence. Seat given to contestant. 
 
 Report by Mr. McCrary. 
 
 The sitting member had been given the seat by the action of the 
 State canvassing board of Texas in rejecting the votes of a number of 
 precincts and counties and of the House in deciding the certificate of the 
 governor to be prima facie evidence of the right to the seat. (See case 
 of W. T. ClarK, ante, y. 263.) After notice of contest and answer 
 had been served the House, in pursuance of an agreement between 
 the parties, ordered that the sixty days allowed by law for taking tes- 
 timony should commence to run on February 1, 18Y2. The contestant 
 took testimony diligently within the time, but the contested took no 
 testimony at all, and, nearly a month after the time for taking testi- 
 mony had expired, came before the committee with an application to 
 have the time extended. This application was accompanied by the 
 affidavits of the sitting member and other persons, setting forth that 
 a combination had been formed among the friends of contestant to 
 indict the officers of election and other persons who would be needed 
 as witnesses by the contestee and by this system of persecution to 
 prevent them from testifying. It was asserted that numerous indict- 
 ments had been found, which produced a feeling of alarm in the dis- 
 trict, but that a better state of feeling now prevailed, and if time 
 were granted testimpny could now be taken. The affidavits were 
 exceedingly vague and general, dealing with conclusions and opinions 
 rather than wiui specific facts. The committee unanimously decided 
 that the application ought to be refused, giving six reasons for their 
 opinion. The first one is as follows: 
 
 1. It must be borne in mind that the party now asking an extension is the sitting 
 member. He is now, and has been during a large part of the term, exercising the 
 functions and receiving the emoluments of the office in question. In a litigation of 
 this character the thing in controversy grows daily less and does not, as in most 
 ordinary lawsuits, remam intact, to be recovered by the successful party in the end. 
 
280 DIGEST OF CONTESTED ELECTION CASES. 
 
 In this particular case the extension asked for would be very nearly equivalent to a 
 final decision of the case in favor of the sitting member upon the merits. We are 
 now near the close of the second session of the Congress. If the parties are to be 
 sent back to Texas to take further testimony, of course no further action can be 
 taken until the opening of the third and last session, which is of but ninety days' 
 duration, and would be necessarily far spent before a final decision could be reached. 
 It does not follow from these considerations that a sitting member can in no ease be 
 allowed an extension after the time allowed by law for taking testimony expires, 
 but your committee think it does follow that no such extension should ever be 
 granted to a sitting member unless it clearly appears that by the exercise of great 
 diligence he has been unable 'to procure his testimony, and that he is able, if an 
 extension be granted, to obtain such material evidence as will establish his right to 
 the seat, or that by reason of the fault or misconduct of the contestant he has been 
 unable to prepare his case. 
 
 The other five reasons given are, in substance: (2) The affidavits do 
 not state facts from which it can reasonably be inferred that the sit- 
 ting member could not, by an exercise of due diligence, have taken 
 his testimony. The opinion of the affiants is that certain indictments 
 were malicious; but no facts are given to support the conclusion, and 
 even if it be taken as true, it is not asserted that any of the witnesses 
 were imprisoned or otherwise placed beyond the reach of -subpoena. 
 (3) There is no evidence that the sitting member, by the issuance of 
 subpoenas or notices to take testimony or otherwise, made a single 
 attempt to, take testimony. (4) The affidavits state that a better state 
 of feeling now exists, but not a single witness claims that he himself 
 was formerly afraid to testify and is now willing. If the better state 
 of feeling does exist, such affidavits could and should have been pro- 
 cured. (5) Of the twenty-four counties in the district, it is only 
 charged that fear prevailed in five. Testimony might have been taken 
 in others, the law permitting i it to be taken anywhere in the district. 
 (6) "The affidavits relied upon are fatally defective in this, that they 
 do not state the names of the witnesses whose testimony is wanted, 
 nor the particular facts which can be proven by their testimony." 
 
 Proceeding, then, to the examination of the case upon the testimony 
 in evidence and treating the rejection of returns by the State officers 
 as presumptively correct, it appeared that the vote of Bosque County 
 had been' rejected because " no official returns were received." But 
 manifestly some sort of returns were received, and, as nearly as could 
 be inferred from the evidence, the irregularity in them was that they 
 were certified by a registrar who had been removed shortly before the 
 election, but who, not being notified of his removal, and his successor 
 not having qualified, had continued to act under color of authority 
 and at least as officer defactq. His official acts affecting third parties 
 and the public would be held valid, and in addition tLere was full 
 proof in the record both of the legality of the election and of the vote 
 actually cast. 
 
 The vote of Brazos County had been thrown out because the ballots 
 had been numbered in violation of the statute. But, as the statute 
 affixed a penalty for marking the ballot and did not declare that the 
 ballot shall be thrown out, and as the construction put on the statute 
 by_ the State officers would enable the officers of election to disfran- 
 chise legal voters, the committee were of the opinion that the votes 
 ought to be received. 
 
 In Washington County there had been two boxes, one used chiefly 
 by white men, the other chiefly by colored. The State officers had 
 rejected the " white man's box" on the ground that the law did not admit 
 of two boxes, and that this box was not presided over by even one 
 
FORTY-SECOND CONGRESg. 281 
 
 lawful officer. But the testimony showed that the two boxes were at 
 different windows in the same room, both equally in or out of the 
 custody of the election officers; the vote was so large that two boxes 
 were a practical necessity and had been customary; white men voted 
 chiefly, but not exclusively, at one box and colored at the other, as a 
 matter of convenience; but at least once during the day the boxes were 
 changed and each put in the window where the other had been. 
 Under these circumstances the boxes must stand or fall together, and 
 in either case, whether the whole vote of the county be counted or 
 rejected and regardless of how the other questions in the case were 
 decided, the contestant had a maioritJ^ 
 
 In Limestone County a large part of the colored vote failed to be 
 cast. The town where the election was held was occupied by an armed 
 and organized force. Pickets were stationed on all the roads leading 
 to the town, and no person was allowed to enter without a pass. The 
 witnesses asserted that voters were allowed to come and go in peace, 
 and that the negroes were urged to vote; but they did not vote, and 
 the committee said: 
 
 It ia clear that they abstained from doing so for reasons which most men would 
 consider good and sufficient. 
 
 In Hill County one of the clerks of the election swore that, with 
 the connivance of the registrar, he abstracted 300 Democratic ballots 
 from the box and substituted Republican ballots. As the previous 
 questions discussed were decisive of the case, the committee did not dis- 
 cuss the credibility of this testimony or the other questions raised, 
 but submitted resolutions declaring that Mr. Clark was not, and Mr. 
 Giddings was, entitled to the seat. The House adopted the resolutions 
 without division, and Mr. Giddings was sworn in. 
 
 [Smith, 91-98.] 
 
 (11) McKissiCK vs. Wallace. 
 
 Fraud and irregularities. Testiinony insufficient., and sitting m&mher 
 retained the seat. 
 
 Report by Mr. Hazelton. 
 
 The sitting member received a majority of 3,304 votes on the face 
 of the returns. Contestant charged irregularities and frauds, but his 
 testimony was almost entirely hearsay and dealt in generalities. The 
 committee decided that it was entirely insufficient to sustain the alle- 
 gations and was not sufficiently definite and tangible to warrant any 
 action on the part of the committee assailing the apparent or prima 
 facie right of the contestee to the seat. In regard to the South Caro- 
 lina election law, approved March 1, 1870, the committee said: 
 
 The law under which the election was held seems to be well calculated to cover 
 if not to encourage fraud, inasmuch as it neither requires registration of the voters 
 nor a public canvass of the votes at the close of the polls, taut allows the managers of 
 each precinct, or one of them, to retain possession of the boxes containing the bal- 
 lots uncounted for three days, at the end of which time they are required to deliver 
 them over to the commissioners of election for their county, together with the poll 
 list, and these latter offices may retain the boxes for ten days longer before making 
 the canvass. But the committee, having no power over this law, must content 
 itself with simply calling attention to it. 
 
 The committee were unanimous in their decision, and the House 
 passed the resolution presented, declaring Alexander S. Wallace 
 entitled to the seat without division. 
 
 [Smith, 98, 99.] 
 
282 DIGEST OF CONTESTED ELECTION CASES. 
 
 (12) BowEN w. De Large. 
 
 Frauds and irregularities. Incompatible office. Brihery hy con- 
 testant. Seat declared vacant. 
 
 Report by Mr. Hoar. 
 
 The case came before the committee at the second session, but the 
 sitting member asked for further time on the ground that his counsel 
 had possession of the testimony and refused to surrender it, having 
 been bribed by the contestant to act for him. The allegation was 
 proved to the satisfaction of the committee, and Mr. De Large was 
 given further time to take his testimony. Part of the committee were 
 of the opinion that the act of the contestant was sufficient to justify a 
 refusal to permit him to proceed with the contest. 
 
 When the testimony had been taken, it appeared that the contestant 
 had since the beginning of the (Congress held and performed the 
 duties of two offices in South Carolina, each of which was, by the 
 constitution of the State and in the nature of things, incompatible 
 with the office of Representative in Congress. The irregularities 
 shown by the testimony were so great that it was impossible to deter- 
 mine who was elected, and the committee unanimously recommended 
 that the seat be declared vacant. The House concurred without 
 division. 
 
 [Smith, 99, 100.] 
 
 (13) NiBLACK vs. Walls. 
 
 FroAid, vntimidation,., and irregularities. Seat given to contestant. 
 
 Report by Mr. McCrary. 
 
 According to all the county returns, contestant received a majority 
 of 192 votes. But the State canvassers rejected the returns from 
 counties giving a vote of 1,604 for Niblack and 783 for Walls, and thus 
 awarded the certificate to Walls by a majority of 629. The sitting 
 member conceded that part of these counties were rejected for tech- 
 nical reasons and should be counted, but asserted that three of them 
 were properly rejected and that a number of precincts in addition 
 must be rejected or additional votes counted for him on account of 
 violence and intimidation. 
 
 In the first of the three counties thus remaining in controversy it 
 appeared that the county canvassers had rejected three of the five 
 precincts. Proof was furnished of the vote in the three rejected 
 precincts, and contestant conceded that they should be counted. No 
 proof of the vote in one of the other precincts was furnished, and in 
 the remaining one the proof was that at least 42 votes had been cast 
 for sitting member, while none had been returned for him. 
 
 In the second county the returns had been rejected because they 
 were not made out in duplicate, nor forwarded within the time required 
 by law, and because, instead of having been sealed and forwarded by 
 mail to the governor, they had been sent to contestant by a messenger, 
 opened by another, and by him delivered to the governor. The first 
 objection was considered as immaterial, as the only difference between 
 the duplicate returns was the date, but to overcome the second the 
 committee caused the testimony of two of the three county canvassers 
 to be procured. They identified the copies of the returns in evidence 
 as being correct copies of those forwarded by them, and the committee 
 counted the vote. 
 
FOBTY-SECOND OOKQEESS. 283 
 
 In the third county the return was signed by but one of the three 
 canvassing officers. Although opportunity was given, as in the pre- 
 vious case, to cure the defect or establish the vote by testimony, none 
 had been taken, and the committee did not count the vote. 
 
 In Gadsen County it was shown that there was an organized effort 
 on the part of friends of contestant to prevent a full vote being given 
 for the contestee. There was a show of violence and deadly weapons 
 at the polls, and a crowding around the windows to keep the colored 
 voters from reaching it. Twenty-nine voters swore that they had 
 attempted to vote for contestant, but were prevented, and the com- 
 mittee added their votes to his poll. 
 
 In two other cases there were disturbances a,t the polls, alleged to 
 have been for the purpose of intimidating voters, but there was no 
 definite proof how many or what persons were intimidated, and by 
 reference to the census of- 1870, just taken, it appeared that there was 
 a very full vote. The committee declined to reject the vote of these 
 precincts. The vote of three other precincts rejected by county can- 
 vassers was proved alwjmde and counted by the committee. Restoring 
 all these votes, a majority of 137 votes is shown for Mr. Niblack. The 
 committee unanimously recommended that he be given the seat, and 
 the House concurred. 
 
 [Smith, 101-106.] 
 
 (14) J. Hale Stphee. 
 
 Charges of fraud. Case not investigated for lack of time. 
 
 Report by Mr. McCrary. 
 
 It was alleged that in the testimony taken before the Senate Com- 
 mittee on Privileges and Elections there were indications that Mr. 
 Sypher had fraudulently procured his election. A resolution passed 
 the House directing the Committee on Elections to inquire into the 
 matter, but as most of the witnesses were in Louisiana, and the reso- 
 lution did not come before the committee until within seven days of 
 the expiration of the Congress, there was no time to procure testimony, 
 and the committee asked to be discharged from further consideration 
 of the case. The House concurred. 
 
 [Smith, 107.J 
 
284 DIGEST OF CONTESTED ELECTION CASES. 
 
 FORTY-THIRD CONGRESS (R.) 1873-1875. 
 
 Oorwmittee on Elections. 
 
 Mr. Smith, New York, Mr. Haeeison, Tennessee, 
 
 Thomas, North Carolina, Hyde, Missouri, 
 
 Hazelton, Wisconsin, Speae, Pennsylvania, 
 
 Todd, Penn^lvania, Lamae, Mississippi, 
 
 Pike, New Hampshire, Ceossland, Kentucky, 
 
 Mr. Robinson, Ohio. 
 
 Oases. 
 
 (I) John J. Davis vs. Benjamin Wilson; J. Marshall Hagans vs. 
 Benjamin F. Martin, West Virginia. 
 
 ^2) Thomas M. Gunter vs. W. W. Wilshire (two cases), Arhinsas. 
 
 (3) Andrew Sloan vs. Morgan Pawls, Georgia. 
 
 (4) John M. Burns vs. John D. Young, Kentucky. 
 
 (5) George R. Maxwell vs. George Q. Cannon, titah Territory. 
 
 (6) John M. Bradley vs. Wm. J. Hynes, Arkansas. 
 
 (7) George A. Sheridan vs. P. B. S. Pinchback (two cases), Louisiana. 
 
 (8) Marcus L. Bell vs. O. P. Snyder, Arkansas. 
 
 (9) George Q. Cannon, Utah Territory. 
 
 (10) Lucien C. Gause vs. Asa Hodges, Arkansas. 
 
 (II) Effingham Lawrence vs. J. Hale Sypher, Louisiana. 
 
 The question of providing a way for deciding contests in the election 
 of President and Vice-President was also referred to the committee 
 and reported on. 
 
 (1) Davis vs. Wilson and Hagans vs. Maetin. 
 
 Legal time for holding Congressional election in West Yirginia. A 
 majority of the committee reported in favm' of Messrs. Wilson and 
 Martin, a minority in favor of Messrs. Davis and Hagans, and aiwther 
 minority in favor of order irig a new election. The House sustained the 
 ■first minority report, and Messrs. Davis and Hagans were sworn in. 
 
 Reports by Mr. Smith, Mr. Todd, Mr. Harrison, Mr. Spear, and Mr. 
 Hazelton. 
 
 Under the old law of Virginia, and under the code in force up to 1872, 
 the elections of Representatives in Congress were held on ^& fourth 
 Thursday in October in every second year. As expressed in the code, 
 "The general election for State, district, county, and township officers, 
 and members of the legislature ' was fixed on that day, and in a sepa- 
 rate section it was specified that "at the said elections * * * there 
 shall be elected," among other things, Eepresentatives in Congress, 
 every second year. 
 
FORTY-THIRD CONGRESS. 285 
 
 The new constitution, submitted to the people for ratification on 
 August 22, 1872, provided: 
 
 The general elections of State and county officers and members of the legislature 
 shall be held on the second Tuesday of October, until otherwise provided by law. 
 
 But the constitution also provided that it should be submitted to the 
 people for ratification on the fourth Thursday of August, 1872, at an 
 election to be held by the officers authorized to hold general elections, 
 and — 
 
 On the same day, * * * elections shall be held at the several places of voting 
 in each county for senators and members of the house of delegates, and all officers, 
 executive, judicial, county, or district, required by this constitution to be elected by 
 the people. 
 
 These elections were to be of no effect unless the constitution was 
 ratified, but if it was ratified the constitution was to be of full effect 
 from and including the day on which it was ratified. The election was 
 held, the constitution ratified, and a full State ticket elected, and in 
 two districts Congressional elections were also held and Messrs. Davis 
 and Hagans elected. On the fourth Thursday in October elections 
 were also held in all the districts, and Messrs. Wilson, Martin, and 
 Hereford elected. Mr. Hereford received a certificate and took his 
 seat without opposition. The governor issued certificates to Messrs. 
 Davis and Hagans, certifying that they were elected, provided the 
 fourth Thursday of August was the legal day of election, and to 
 Messrs. Wilson aiid Martin like credentials, certifying that they were 
 elected, provided the fourth Thursday of October was the legal day. 
 Subsequently, under an act of the legislature, formal certificates were 
 given to Messrs. Wilson and Martin. The House refused to admit 
 either candidates on their certificates, and referred their credentials to 
 the Committee on Elections. 
 
 The case turned on the construction to be given the provisions of 
 the code and constitution above referred to; the argument can not 
 be properly given without going more into detail than is possible in a 
 brief outline. There were three opinions presented and strongly sup- 
 ported — one that the election was properly held on the fourth Thurs- 
 day in August, another that it was properly held on the fourth 
 Thursday in October, and another that it should have been held on 
 the second Tuesday in October, the date fixed by the new constitu- 
 tion for holding "general elections" in the future. In the last case 
 none of the claimants would be entitled to the seats. A majority of 
 the committee, consisting of Messrs. Smith, Thomas, Crossland, Speer, 
 and Lamar, supported the October election. Mr. Todd was of the 
 same opinion on the testimony presented, but believed that the Octo- 
 ber election should have been inquired into to see if it was not void on - 
 account of the lightness of the vote and irregularities. Messrs. Har- 
 rison and Hyde did not consider either election valid. -Messrs. Speer, 
 Lamar, and Crossland, who signed the majority report, submitted a 
 separate report, setting forth more fully the reasons for their views. 
 Messrs. Hazelton and Robinson supported the August election. After 
 several days' debate the resolutions submitted by Messrs. Hazelton 
 and Robinson were adopted by a vote of 134 to 82, and Messrs. Davis 
 and Hagans were sworn in. 
 
 The contention of those who supported the October election was that 
 it was not in any case competent for the constitutional convention to 
 
286 DIGEST OF CONTESTED ELECTION CASES. 
 
 fix the day of the Congressional election at a day other than that fixed 
 by the legislature, nor was it competent for the legislature to pre- 
 scribe the date by fixing it on an "occasion," the time of which 
 occasion might be changed by another authority than the legislature. 
 Therefore the legislature in providing that members of Congress should 
 be elected at a general election which was fixed for a certain day must 
 have intended to fix the Congressional election on that day, and not 
 merely to attach it to the general election, to be held on whatever day 
 subsequent changes in thelaw might fix that election. It must remain 
 on the fourth Thursday in October until the legislature should pre- 
 scribe another day. Moreover, the election held on the fourth Thurs- 
 day in August, 1872, was not a general election, for, although State 
 and county ofiicers and members of the legislature were elected at it, 
 it was a special election held for a special purpose, at a special time. 
 Representatives in Congress were not expressly or by necessary 
 implication included in the officers to be voted for at it. 
 
 Those who favored the August election held that the Congressional 
 election had been made a part of the "general election," and must be 
 held at whatever time the general election was held. The election in 
 August, 1872, was a general election, though not held at the time set 
 for the general election in subsequent years, because it was held by 
 the same officers, and the same officers were to be elected at it as in 
 the future at the general elections. 
 
 Those who advocated ordering a new election held that the August 
 election in 1872 was a special election; that the Congressional election 
 could not legally be separated from the " general election," and as, 
 under the constitution ratified August 22, 1872, the "general election" 
 was thereafter to be held on the second Tuesday in October, the Con- 
 gressional election should have been held on that day, although all the 
 other officers ordinarily elected at a general election had, in this year, 
 already been elected at the special election in August. 
 
 [Smith, 108-130.] 
 
 (2) GUNTER V8. WiLSHIEE. 
 
 Prima facie case. Sufficiency of abstract of votes certified hy the gov- 
 ernor. Mr. Wilshire amnitted. Case on merits. Imperfect iaUots. 
 
 Contestamt given the seat. 
 
 Majority rej)ort on prima facie case by Mr. Thomas; minority report 
 on prima facie case by Mr. Lamar; unanimous report on case on 
 merits by Mr. Robinson. 
 
 The Clerk of the House refused to place the name of any person on 
 the rolls as Representative from the 1 hird district of Arkansas. The . 
 credentials were referred to the Committee on Elections, a majority of " 
 which reported that Mr. Wilshire was entitled to be sworn in on the 
 prima facie title established by his credentials. A minority reported 
 that neither party had a prium facie right to the seat, and recom- 
 mended that the seat remain vacant until the case could be decided on 
 its merits. 
 
 The credentials of Mr. Wilshire were: 
 
 (1) A certificate from the secretary of state, presenting a tabular 
 statement of the votes cast, showing 12,522 votes for W. W. Wilshire 
 11,961 for Thos. M. Gunter, 407 for Thos. M. Gunther, and 1,127 
 "scattering," and certifying that the table had been cast up and ar- 
 
FORTY -THIRD CONGRESS. 287 
 
 ranged by the secretary of state, in the presence of the acting governor, 
 within the time and in the manner prescribed bj' statute. 
 
 (2) A proclamation by the governor and a certificate, each contain- 
 ing the same table of votes,'showing 12,644 votes for W. W. Wilshire, 
 11,499 for Thps. M. Gunter, 12 for Wilshire, 591 for Gunther, and, 
 in a footnote, 1,456 scattering votes in Pulaski County polled for Gun- 
 tee, S. M. Gunter, T.'M. Guntee, Thos. M. Guntee, T. Ros. Gunter, 
 and Thomas M. Crenter. Other footnotes asserted that two counties 
 ought to be rejected, one because it had never been made a part of the 
 Third Congressional district by any act of the legislature, and the 
 other because "thei'e are no returns from the clerk of Scott County." 
 
 The certificate and proclamation were certified to be made by the 
 governor because of the failure of the acting governor to make them, 
 and set forth the facts as above, but contained no direct statement that 
 either party was elected. 
 
 The majority of the committee reported that no strict adherence to 
 any prescribed form could be required in a prvma facie case; that the 
 failure of Acting Governor Handley to certify the result ought not 
 to prejudice the right of anyone to the seat, and that the certificate 
 of Governor Baxter was in effect a certificate that Mr. Wilshire had 
 received a majority of the votes. 
 
 The minority h.eld that no certificate of election had been issued. 
 A certificate of *he vote, exactly like the one presented by Mr. Wil- 
 shire, had been at the same time issued to his competitor. It showed 
 that a certain number of votes had been cast for W. W. Wilshire, a 
 certain number for Thomas M. Gunter, eo nomine, and certain others 
 in unspecified proportions for Thomas M. Crenter and for Thomas M. 
 Gunter, under various imperfect ways of spelling his name. If only a 
 small proportion had been cast for Thomas M. Crenter, and the rest 
 were counted for Mr. Gunter, he would have a majority. He asserted 
 that such was in fact the case, and offered testimony to prove it. As 
 the statement of vote in the governor's certificate did not necessarily 
 show which candidate had received the majority, and there was not 
 even a statement of the opinion of the governor that either one was 
 elected, the seat ought to remain vacant until the case could be decided 
 on its merits. 
 
 The resolution submitted by the minority was lost hj a vote of 116 
 to 117, and that submitted by the majority carried by a vote of 118 to 
 97. Mr. Wilshire was sworn in the next day, a motion to reconsider 
 the last previous vote having first been laid on the table by a vote of 
 1.35 to 129. 
 
 The case coming before the committee on the merits, it was unani- 
 mously decided in favor of contestant. It was proved that the con- 
 testant and contestee were the only candidates for Congress at the 
 election, and the committee were satisfied from the evidence that all 
 the scattering votes, except those returned for S. M. Guntee and 
 Thomas M. Crenter, were in fact cast for contestant. No evidence 
 was produced in regard to these last two names, and the committee did 
 not consider this similarity sufficient to count them for contestant 
 without evidence. Counting all these votes for contestant, he is 
 shown to have received a majority of 857 votes. Many other issues 
 were raised in the case the result of which would be to still further 
 increase the majority of contestant, but the committee did n6t discuss 
 them in their report. 
 
288 DIGEST OF CONTESTED ELECTION CASES. 
 
 The resolutions presented by the committee were adopted by the 
 House without debate or division. 
 [Smith, 130-143; 233-339.] 
 
 (3) Sloan vs. Rawls. 
 
 Fraud and irregula/rities. Majority report in favor of_ contestant. 
 Minority report in favor of sitti/ng merriber. Contestant given the seat. 
 
 Majority report by Mr. Hyde; minority report by Mr. Speer. 
 
 According to all the returns filed with the secretary of state, con- 
 testant had a majority of 12 votes. But by an error of the man- 
 agers in consolidating the vote in one county, by their failure in another 
 county to count the return of a precinct received by them the day after 
 they had finished consolidating the returns, and by their rejection of 
 the votes of three precincts in another county on the ground that the 
 
 Erecincts had no legal existence, the majority was given to Mr. Rawls, 
 e having received a majorit3^ of the remaining votes. The first two 
 errors above were corrected by both the majority and minority of the 
 committee, and the case really turned on the third point, whether the 
 votes of three precincts of Chatham county, casting 1 ,239 votes for con- 
 testant and 2 for contestee, could properly be counted. Both sides 
 seemed to assume ,that if the precincts were not in fact established by 
 law the votes cast at them must be rejected, and when Mr. Hoar in the 
 debate raised the question whether there might not be such a thing as 
 a precinct de facto, at which the votes cast should be counted if they 
 were cast by qualified voters and correctly returned, Mr. Smith, the 
 chairman of the committee, expressed his opinion in the negative. The 
 majority of the committee counted the vote of these three precincts, 
 and also the vote of two other rejected precincts, one of them showing 
 a small majority for contestee and the other a considerable majority 
 for contestant. They also discussed a number of other issues raised 
 the decision of which on strict rules of law would largely increase the 
 majority of 136 thus shown for contestant. But. in each case the 
 strictly legal decision of these questions would involve the rejection of 
 precincts or counties part of whose vote at least was honestly cast and 
 correctly returned and as they would not in any view be decisive of 
 the case the committee allowed the votes to stand. The minority 
 report disagreed With the views of the majority of -the committee on 
 all these points, and also expressed findings against the claims of con- 
 testant on a number of issues not mentioned in the majority report. 
 The case was debated for several days, and the House finally adopted 
 the resolutions presented by the majority by a vote of 135 to 74, and 
 Mr. Sloan was sworn in. 
 
 Under the law of Georgia the court-house of each county was made 
 a voting place, and the ordinary of each county was empowered 
 to establish or abolish other voting places in the county. On Octo- 
 ber 22, 1868, the ordinary of Chatham County made an order 
 x-eciting that "It being necessary that election precincts should be 
 established in the county in order to facilitate the election to be held 
 on the 3d day of November next, it is therefore ordered that election 
 precincts be, and they are hereby, established" at 3 specified places. 
 Elections were held in these precincts in 1868. The election of 1870 
 was held under a special law establishing j)recincts for that election 
 alone; and elections were also held in them in 1872. About a month 
 
FORTY-THIRD CONGRESS. 289 
 
 after the election of 1872 an order was entered by the ordinary abol- 
 ishing the precincts. Since 1868 there had been two or three county 
 and local elections, at which these precincts had not been used. The 
 majority of the committee were of the opinion that the preamble to 
 the order establishing the precincts could not be construed into an 
 order abolishing them the day after the first election held at them; 
 that the law providing for the election of 1870, being by its terms lim- 
 ited to that election, did not abolish precints except for the purposes 
 of that election; and that the precincts continued in legal existence 
 until they were formally abolished about a month after the election 
 of 1872. 
 
 The minority held that the precincts had been established for the 
 election of 1868 alone. The ordinaiy testified that such was his inten- 
 tion when he established them, and the fact that they had not been 
 used at any subsequent election until that of 1872 seemed to indicate a 
 public understanding to the same effect. Moreover, the act providing 
 for the election of 1870, while a special act for a special election, pro- 
 vided that polls should be opened only in organized towns by mana- 
 gers appointed in a certain way, and contained a general clause 
 repealing all acts inconsistent with its provisions. The act under 
 which these precincts had been established was inconsistent with the 
 provision of the act of 1870, and the precincts established under it, 
 even if still in legal existence in 1870, were abolished by the repealing 
 clause of that act. The election in these precincts in 1872 was a device 
 of contestant's. The officers of election did not live in the precincts, 
 but were sent out from Savannah. The votes cast were all but two cast 
 for contestant. The officers of election voted at the elections where 
 they held elections, though not residents; and it was very probable 
 that many other illegal votes were cast. At one of the precincts there 
 was no house and the election was held in the road, the officers sitting 
 in two carriages. Supervisors of election had been appointed, but 
 none of the Democratic supervisors had attended, as the party of con- 
 testee was entirelj' unrepresented. For all these reasons the minority 
 sustained the action of the managers in rejecting the vote of these 
 precincts. 
 
 Two other rejected returns were counted by the majority. In one pre- 
 cinct the managers of election had refused to complete the count of the 
 vote, and it was completed by one manager and a clerk. The return of 
 the United States supervisors, the testimony of one of them, and of one 
 of the managers of the election, showed that the vote cast was 189 for 
 Sloan and 113 for Rawls, and the committee so counted it. In another 
 precinct the managers did not subscribe the oath and forwarded their 
 returns irregularly to the secretary of state. The returns showed 31 
 votes for Rawls and 4 for Sloan. They were rejected by the county 
 managers. The committee were of the opinion that strict rules of law 
 would require the rejection of this return, but as there was no evidence 
 of fraud and some evidence of the correctness of the vote the com- 
 mittee counted it. The minority also counted this precinct, but declined 
 tocount the other on the ground that the action of the supervisor of 
 election justified the managers in refusing to count the vote, and that 
 the testimony of the supervisor was impeached. 
 
 The above are all the issues on which definite rulings were made by 
 the committee affecting the result, but the following were also discussed : 
 In one precinct Mr. bloan was returned as receiving 36 votes. The 
 
 H. Doc. 510 19 
 
290 DIGEST OF CONTESTED ELECTION CASES. 
 
 Republican ticket distributor testified that he issued 74 tickets to men 
 who took them and went to the box to deposit them. At least 67 
 of those voting were known as Republicans. Sixty of them testified 
 that they voted the Republican ticket, and all but 5 swore that they 
 intended to vote for Mr. Sloan. The majority of the committee held 
 that this was not such evidence of fraud as would justify the rejection 
 of the return, but that the votes proved in excess of the return might 
 be counted for the candidate for whom they were cast. They did not, 
 however^ count them in this case, it being unnecessary. The minority 
 held that an examination of the testimony of the voters showed that a 
 large part of them did not know for whom they voted, and eliminating 
 sucli tne number remaining was even less than the number returned 
 for Mr. Sloan. 
 
 In Bullock County the precinct returns were placed in the hands of 
 an outsider, who kept them for some time, consolidated them himself, 
 and signed the names of the precinct managers to the consolidated 
 returns without their knowledge or consent. Some time later the 
 returns were forwarded in an indirect way to the secretary of state, 
 and were counted. The committee held that the consolidated return 
 was of no value, but counted the precinct returns, although they were 
 covered with suspicion, except one precinct return which did not show 
 on its face in what precinct or county the election was held. The 
 minority insisted that there was positive proof of the correctness of 
 the returns, and that if one precinct return was to be rejected for 
 informalities there were others which ought also to be rejected. No 
 votes were returned for contestant in this county. 
 
 In the city of Savannah four ballot boxes, presided over by four 
 sets of election- officers, were opened in the court-house, so situated as 
 to render it impossible for the United States supervisors to supervise 
 the election at all of them. These four ballot boxes in one voting pre- 
 cinct the committee found to be in violation of the Georgia law, 
 which provided that there should not be more than one voting place 
 in each militia district, and also subversive of the supervision law of 
 Congress; but in this case it was not necessary to reject the votes. 
 The minority found that the use of the four boxes, being customary 
 and practically necessary on account of the large number of voters, 
 was proper. 
 
 The minority of the committee deducted from contestant his majority 
 of 205 received at the precinct of Jeffersonton, Camden County. This 
 place had formerly been the county seat, and hence the court-house 
 had been a voting place. The county seat had been transferred to 
 another town a short time before the election, and the minority held 
 that this abolished the voting place at the building formerly used as a 
 court-house. The majority held that the act changing the county seat 
 did not abolish the voting place at the old county seat. 
 
 [Smith, 144-178.] 
 
 (4) Burns vs. Young. 
 
 Irregularities. Distinguishing marks on hdlots. Sitting memher 
 retained the seat. 
 
 Report by Mr. Crossland. 
 
 This was the first Congressional election in Kentucky where the vote 
 was by ballot, as required by the act of Congress approved February 
 
FOETY-THIRD CONGRESS. 291 
 
 28, 1871. The act of the Kentucky legislature contained very elabo- 
 rate directions in regard to the manner of conducting the election, 
 many of which were not strictly followed by the officers of election. 
 According to the returns, contestee received a majority of 188 votes, 
 which contestant sought to overthrow on account of various irregu- 
 larities. Contestee made countercharges of irregularities, and espe- 
 cially charged that large numbers of votes cast for contestant by bal- 
 lots containing the contestant's name with the prefix "Hon." were in 
 violation of the statute prohibiting distinguishing marks. The com- 
 mittee held that this was not such a distinguishing mark as to require 
 the rejection of the votes, and counted votes which had been rejected 
 for this reason by the county boards and refused to reject others. In 
 one county the vote certified by the county board showed 9 less votes 
 for Burns than the aggregate of the precinct returns. The county 
 board had refused to permit anyone to be present at the count, and 
 the committee, believing this practice to be reprehensible and danger- 
 ous, counted the vote according to the precinct returns. The other 
 irregularities shown were about equally in precincts where the con- 
 testant and contestee had majorities. Most of them were not of such 
 a nature as to vitiate the returns, and where they were the secondary 
 proof of the actual vote cast showed a result not differing from the 
 returns. The committee unanimously reported in favor of the sitting 
 member, and the House sustained his right to" the seat without 
 division. 
 
 [Smith, 179-181.] 
 
 (5) Maxwell vs. Cannon. 
 
 Ineligibility on accownt of polygwmy. Question of jurisdiction. 
 Sitting memhefr retained the seat. 
 
 Majority report by Mr. Hazelton; minority report by Mr. Harrison. 
 
 According to the returns of the election in Utah Territory Mr. Cannon 
 had received 20,969 votes and Mr. Maxwell 1,942. Mr. Maxwell 
 claimed the seat on the ground that most of the precincts must be 
 thrown out on account of the numbering of the ballots, the admission 
 of women to vote, coercion of voters, and irregularities, and that he 
 had received a majority in the remaining precincts. He also charged 
 that Mr. Cannon, being a polygamist, was ineligible, and that the 
 voters had notice of his ineligibility, and their vot6s must therefore be 
 disregarded and the'seat given to the candidate receiving the highest 
 nvunber of the remaining votes. The committee discussed only the 
 latter charges, as the irregularities would not be in any case sufficient 
 either to invalidate the election or overcome the overwhelming majority 
 of contestee. The claim of Mr. Maxwell to be elected was unanimously 
 rejected, on the principle that American usage and the precedents of 
 the House did not permit the seat to be given to the minority candidate 
 even where the voters had notice of the ineligibility of the majority 
 candidate. 
 
 In deciding the right of Mr. Cannon to hold the seat the committee 
 were confronted by the question of jurisdiction. The case was referred 
 to the committee under the usual order, along with other cases. The 
 Committee on Elections had been organized under the provision of the 
 Constitution that "each House shall be the judge of the elections, 
 returns, and qualifications of its own members," and had never taken 
 
292 DIGEST OF CONTESTED ELECTION CASES. 
 
 jurisdiction, except by special reference, of any cases not included in 
 this provision. The only qualifications within its province to examine 
 into were the constitutional qualifications of age, residence, and citizen- 
 ship, all of which it was conceded Mr. Cannon possessed. 
 
 This case was the case of a Delegate, and not of a member, but the 
 committee concluded that the qualifications required were in this case 
 the same. Congress might have established any qualifications it chose 
 for Territorial Delegates, but it had prescribed none, except by extend- 
 ing the Constitution to the Territory of Utah so far as applicable. This 
 was equivalent to making the qualifications of the Delegate similar to 
 those of a member. Mr. Webster had been quoted in support of the 
 doctrine that Congress could no by law extend the Constitution over 
 the Territories, but Congress certainly had the power to make it a part 
 of the statutory laws of the Territory, which in this case would have 
 the same effect. 
 
 The contestee, having all the constitutional qualifications, and having 
 been duly elected and sworn in without condition or reservation, could 
 be reached only tinder the power of expulsion. The committee there- 
 fore recommended the adoption of resolutions declaring that the con- 
 testant was not elected and not entitled to the seat, and that Mr. Cannon 
 was elected and returned. 
 
 Mr. Harrison presented a minority report complaining that the reso- 
 lutions presented by the committee, while declaring Mr. Cannon 
 elected, did not declare him entitled to retain the seat. It was con- 
 ceded that Mr. Cannon was elected, and possessed all the constitutional 
 qualifications. The House had no right to require any others. Con- 
 gress might by law have made ineligibility to office a part of the pen- 
 alty of polygamy in the Territories, but it had not done so. Mr. 
 Cannon was, therefore, absolutely qualified, and so far as the juris- 
 diction of the Committee on Elections was concerned (or that of the 
 House by a majority vote), was absolutely entitled to his seat. The 
 resolutions presented by the committee tended to break down the dis- 
 tinction between the power of the House, by a majority vote, to judge 
 of the elections, qualifications, and returns of its members, and its 
 power, by a two-thirds vote, to expel a member. Mr. Harrison there- 
 fore recommended that there be added to the resolutions of the com- 
 mittee a declaration that Mr. Cannon was entitled to retain the seat. 
 
 After some debate in the House the resolutions of the committee 
 were adopted by unanimous consent, and the resolution of Mr. Harri- 
 son was then added to them^ by a vote of 109 to 76. A resolution 
 comnaitting the charges against Mr. Cannon to the Committee on 
 Elections, to report to the House for action, was then passed by a 
 vote of 137 to 51. For the action of the committee and House, see 
 the case of George Q. Cannon, post. 
 
 [Smith, 182-195.] 
 
 (6) Bradley vs. Hynes. 
 
 Charges of dishonorable conduct against sitting ■member. Committee 
 discharged from further consideration of the case. 
 
 Report by Mr. Pike. 
 
 Messrs. Bradley and Hynes were both candidates for Representative 
 at large from Arkansas. Mr. Hynes received the certificate. Mr. 
 Bradley served a notice of contest fourteen days after the time for 
 
FORTY-THIRD CONGRESS. 293 
 
 serving it had expired, but Mr. Hynes did not see a copy of it until 
 more than a month later, and never received the copy, which was 
 served by leaving it at a boarding house where he had formerly boarded. 
 The testimony was all taken after the time for taking testimony had 
 expired. After it had been taken Mr. Bradley served on Mr. Hynes 
 a notice acknowledging that he had not proved his case, and withdraw- 
 ing the contest. 
 
 After the organization of the House Mr. Bradley presented a memo- 
 rial under oath alleging that he had been duly elected to Congress in 
 ?lace of Mr. Hynes, but by the fraudulent act of the county clerk of 
 'ulaski County and other officers, he had been deprived of the cer- 
 tificate. After having regularly instituted a contest he had been 
 induced to abandon it by the payment of $500 in money and the prom- 
 ise of $1,000 additional. 
 
 The committee received a statement from the sitting member which 
 set forth that the testimony taken had only the more firmly estab 
 lished his election, but that considering the fact that the contest would 
 suspend the payment of his salary until December 1, and subject him 
 to many inconveniences, he had consented, at the request of the con- 
 testant, to pay him $500 in consideration of the withdrawal of the 
 contest. The committee did not approve of this act of Mr. Hynes, 
 but found that there was nothing criminal about it, and as an examina- 
 tion of the testimony showed that he had no cause to fear the result of 
 the contest it was not done for the purpose of securing his seat in 
 Congress corruptly. They asked to be discharged from the further 
 consideration of the case, which was agreed to by the House without 
 division. 
 
 [Smith, 240-247.] 
 
 (7) Sheridan vs. Pinchback. 
 
 {1) Prima facie case. Question of the legality of the various Louisiana 
 returning ioards. A&missiMlity of testimony taken hefore a Senate 
 committee. The majority reported vti famor of the seat remaining 
 vacant until further testi/mony could oe taken; the minority recom- 
 mended the seating of Mr. Shefrid-a/n. The Souse sustained the majority. 
 
 Majority report by Mr. Smith; minority report by Mr. Lamar. 
 
 Mr. Pinchback presented a certificate of election, signed by him- 
 self as acting governor of Louisiana, and also one signed by Gover- 
 nor Kellogg. Mr.- Sheridan presented a certificate signed by Gov- 
 ernor Warmoth. Within the legal time after the issue of the first 
 certificate Mr. Sheridan served a notice of contest, to which Mr. 
 Pinchback made no answer. The committee unanimously reported 
 that Mr. Pinchback was not entitled to be sworn in on his certificates 
 (which were his only evidence), as they were based on the return of 
 the board known as the "Lynch board," which board it was a matter 
 of public history, of which the House could take notice, had never had 
 possession of the returns, and hence could not have canvassed them. 
 The majority of the committee reported that Mr. Sheridan was also 
 not entitled to be sworn in on his certificate. He had served in due 
 time a notice of contest, to which no answer had been made, but the 
 committee were of the opinion that his case was not on this account 
 any stronger than it would have been if no one were contesting ' his 
 seat, and the committee had been instructed to inquire whether he 
 
294 DIGEST OF CONTESTED ELECTION CASES. 
 
 was elected. The certificate of Governor Warmoth was not sufficient 
 proof of his right, for, "waiving the question whether in any case a 
 governor's certificate alone is sufficient proof upon the merits of title 
 to a seat in this House, it seems clear to your committee that its effect 
 as proof rests upon the presumption that it is the official declaration 
 of an official canvass of the votes," and Mr. Sheridan had _ conceded 
 that at the time when his certificate was issued the Congressional vote 
 had not been canvassed by any board whatever. 
 
 Mr. Sheridan's right to a seat, then, if it could be established at all, 
 depended on the return of the "Forman board," the only board which 
 had returned him as elected.' This raised and required the decision 
 of the question whether the House would receive as evidence the testi- 
 mony taken by the Senate Committee on Privileges and Elections dur- 
 ing the preceding Congress; for there was no other evidence before 
 the committee of the return of any board. Upon the authority of 
 Cushing's Law and Practice of Legislative Assemblies, the commit- 
 tee concluded that it could be received "for what it was worth," 
 although neither of the parties to the present case was directlj' a party 
 to the case in which it was taken; and the question as to which of them 
 was elected as a Representative in Congress was not directly or 
 indirectly before the Senate committee. The volume of testimony 
 thus admitted contained no precinct or parish returns, nor parol testi- 
 mony of the vote of either claimant, but the committee were satis- 
 fied that it contained correct copies of the returns of the boards known 
 as the Lynch and Forman boards.. The committee also received as 
 evidence the President's message to the last Congress on Louisiana 
 affairs, and the report and accompanying exhibits of the chief super- 
 visors of election in the State. 
 
 Conceding for the purposes of this question that the returns were 
 pi'operly canvassed under a law approved after the election, and that 
 the Forman board was the lawfully constituted board, — the commit- 
 tee were of the opinion that 
 
 The correctness of these returns is challenged by evidence, which shows probable 
 cause, abundantly sufficient (certainly more so than common fame, upon which the 
 House might act) to put the House upon inquiry before these returns are accepted 
 as conclusive. 
 
 The reasons for doubting the returns were: (1) The Forman board 
 first received an immense mass of returns from the whole State on the 
 evening of December 11, and completed their canvass the same evening; 
 (2) there was evidence that at least two of the signatures of the board 
 were forged; (3) one of the members of the board testified that he 
 believed mere were from 25,000 to 30,000 fraudulent names on the reg- 
 istration books; (4) there was evidence that the majoritj' of the legal 
 voters in Louisiana were Republicans, and that the ' ' fusion " with Gov- 
 ernor Warmoth was the outcome of a corrupt conspiracy to overcome 
 this majority by fraudulent means; (5) the conduct of the State regis- 
 trar, as shown by his confidential instructions and his own affidavit, was 
 
 ^The State of Louisiana had been in what practically amounted to a condition of 
 armed revolution. During this period of confusion there had been at various times 
 five returning boards, each claiming to act under a different authority. The various 
 certificates of election awarded by them to opposing candidates were the occasion of 
 a large number of contests, both in the State of Louisiana and in the two Houses of 
 Congress. The subject is too complicated a, one to be entered into here, and the 
 reader is referred to the various reports of the Senate and House, in which it is fully 
 discussed. 
 
S'ORTY-THlilD CONGRESS. 295 
 
 such as to cover the returns with very grave suspicion; (6) the return 
 of the Congressional vote made hy the Foi'man board was separate 
 from that of other otJicers, the inquiry of the Senate committee was 
 directed wholly to the other returns, there was no proof or presump- 
 tion that the Congressional return was verified by comparison with the 
 parish i-eturns; these parish returns had been opened and kept in such 
 a way as greatly to impair their trustworthiness, and whatever the}^ 
 would be worth none of them were in evidence; (Y) the polls in large 
 Eepublican parishes had purposely been opened in remote and inacces- 
 sible places, and the exhibits filed by United States supervisors indi- 
 cated that the fairness of the election had been interfered with in other 
 ways; (8) the truth or falsity of the afii davit of the State registrar, 
 testifying to his own infamy, ought to be investigated; (9) the For- 
 man return omitted six parishes, and a probable case was made out 
 against the correctness of its return as to twelve others, sufficient to 
 overcome the majority of Mr. Sheridan unless the returns could be 
 sustained by evidence. 
 
 For all these reasons, tue committee recommended that the parties be 
 permitted to file amended notice and answer, and take testimony under 
 the law for taking testimony in ordinary cases. 
 
 The minority report contended that the evidence was sufficient to 
 establish the right of Mr. Sheridan to the seat. The certificates of 
 Mr. Pinchback were held to be worthless, for the same reasons assigned* 
 by the majority, and the certificate of Mr. Sheridan, though signed by 
 the undoubted governor of Louisiana, was of no effect because it was 
 conceded that it was not based on a count of the votes. 
 
 Neither party, then, having established a prvma facie right, the 
 question remained whether the evidence was sufficient to establish the 
 right of either on the merits. Mr. Pinchback had no evidence of his 
 right except the notoriously insufficient return of the Lynch board. 
 It was proved in the testimony taken by the senate committee that 
 the returns in the legal custody of the governor were delivered by 
 him to the "De Feriet board," legally appointed by him, partly can- 
 vassed by that board, a legislature organized upon its returns, a new 
 board — the "Foreman board" — elected, by the senate as provided by 
 law, and the returns received by that board unaltered from the De 
 Feriet board, and correctly canvassed. The original returns were 
 before the senate committee, the compiled returns were shown to be 
 in accordance with them, and there was no evidence impeaching the 
 original returns except a statement that the signatures of four of them 
 were forged, which fact, if a fact, would not change the result. Six 
 parish returns had been rejected by the board, but the evidence 
 abundantly justified their rejection, and ■ even if their votes were 
 counted according to the guesswork returns of the Lynch board, it 
 would deprive Sheridan of only part of his large majority. If the 
 returns said to be forged were rejected it would increase Sheridan's 
 majority, and if they were counted as given by the Lynch board it 
 would not overcome his majority. 
 
 To validate an election there must be votes legally deposited by legal voters and 
 legally counted, and the result legally declared. 
 
 There was no claim that there had been no election in this case, but 
 the votes had not been counted by the Lynch board, and hence it was 
 not material to decide whether that board was legally constituted. 
 The votes had been courited by the Forman board, and it was in proof 
 
296 DIGKST OF CONTESTED ELECTION CASES. 
 
 that they had been correctly counted. The result of the election a'^ 
 returned by them had not been successfully impeached, and it should 
 therefore be allowed to stand. (No explicit ruling was made as to the 
 legality or illegality of the appointment of the Forman board.) The 
 minority recommended resolutions declaring that Pinchback was not 
 and Sheridan was elected. 
 
 The case was considered in the House several days, and the resolu- 
 tion presented by the minority declaring Pinchback not elected was 
 defeated by a vote of 94 to 121, and the resolution declaring Sheridan 
 elected was defeated by a vote of 72 to 146. The resolutions pre- 
 sented by the majority were then passed without division. 
 
 [Smith, 196-233.] 
 
 (^) Case on merits. Conflicting returns cmd cJutrges of fraud. 
 Majority report for contestant, minority report that seat should he 
 declared vacant. Contestant gi/uen the seat. 
 
 Majority report by Mr. Harrison, minority report by Mr. Smith. 
 
 Under the leave given at the first session Mr. Sheridan had taken 
 considerable additional testimpny, within the time allowed. Mr. 
 Pinchback took no testimony until the expiration of his time, but 
 took some afterwards, with the consent of Mr. Sheridan. The testi- 
 mony of Sheridan was directed to proving the correctness of the 
 returns as shown in the canvass of the Forman board; that of Pinch- 
 back to proving frauds to offset the majority returned for contestant. 
 No attempt was made to sustain the return of the Lynch board. The 
 original returns were not produced, but contestant showed that he had 
 made a diligent effort to procure them, and failing in that he proved 
 that the canvass of the Forman board was a correct compilation of 
 them. Contestee admitted this, but objected to the returns on the 
 ground that six parishes were omitted and that fraud was committed 
 in others. But correcting the returns of the Forman board by add- 
 ing to them the vote of these six parishes, as shown by the elections 
 of 1870 or 1874, or the average of both, or the returns of the Lynch 
 board, contestant would still have a majority of from 7,000 to 8,000. 
 The testimony to show fraud consisted of reaffirmations by witnesses 
 of affidavits not received when previously presented (except to raise a 
 suspicion of fraud), because ex parte. They were now received by the 
 majority of the committee for what they were worth, but being the 
 testimony of criminals to their own crimes and not sufficiently corrob- 
 orated, they were held to be inconclusive, especially in regard to the 
 Congressional election, which had been supervised under the new 
 Federal election law in such a way as to make it incredible that frauds 
 of the kind and magnitude charged could have been committed. 
 
 The majority therefore recommended resolutions declaring Sheridan 
 elected and entitled to the seat. 
 
 A minority, consisting of Messrs. Smith, Hazelton, Hyde, Todd, 
 and Thomas, reported against both claimants. Mr. Pinchback had 
 practically given up the case, and the question was on the seating of 
 Mr. Sheridan. He could not be seated on the returns of the Lynch 
 board, declared by the State courts to be the legal board, because it 
 had not returned him as elected. Nor could he be seated on the 
 returns of the Forman board, for the reasons given in the previous 
 report of the committee. Could he be seated on the parish returns? 
 These were not produced, but contestant showed that he had used due 
 
FOETY-THIRD CONGRESS. 297 
 
 diligence to procui'e them, and had shown that they were correctly 
 tabulated in the Forman returns. But six parishes were omitted from 
 these returns, and there were twelve others in regard to which the 
 report adopted at the last session had given due notice that they 
 required to be sustained by evidence before they could be received. 
 Mr. Sheridan had taken no testimony to sustain them, but proposed to 
 compromise by substituting the vote of 1874 in these parishes for that 
 returned. This would leave him a majority of only a little over 1,000, 
 allowing the parish of Orleans to stand. But the testimony of fraud 
 in the registration, and stuffing of ballot boxes in that parish was suffi- 
 ciently corroborated to convict an accomplice of crime in a criminal 
 court, and certainly sufficient to justify refusing a seat to the benefici- 
 ary of the fraud. The minority recommended a resolution declaring 
 that Sheridan was not shown to be entitled to the seat. ' 
 
 The case was not taken up until the last day of the Congress, when 
 the resolutions presented by the majority were adopted without debate 
 or division, and Mr. Sheridan was sworn in. 
 
 [Smith, 322-340.J 
 
 (8) Bell vs. Sntdee. 
 
 Votes illegally rejected; returns omitted; irregularities. Sitting 
 memher retained the seat. 
 
 Report by Mr. Harrison. 
 
 According to the returns as certified by the governor, Mr. Snyder 
 received a majority of 104 votes. Bell contested, charging that in 
 four counties the names of legal voters were fraudulently stricken 
 from the registration lists, the voters offered to vote for him, and were 
 refused; iand that in one county the return counted by the governor 
 was made by an unauthorized person, and was false and fraudulent. 
 Contestee denied the charges, and charged that he had been deprived 
 of votes in one county by the refusal of the county clerk to certify 
 them, on the ground that the precinct returns did not show for what 
 office the votes were cast for him. If these votes were not to be 
 counted for him, he asked that votes similarlyreturned for contestant 
 in five other counties be rejected. He also charged intimidation in 
 one county, and the illegal registration of unqualified voters in seven 
 others. 
 
 Under the laws of Arkansas the registrar in each county was to 
 make out a registry list from his own knowledge and testimony pro- 
 duced before him and issue certificates. A person holding a certificate 
 was entitled to vote until his certificate was revoked by the board of 
 review, consisting of the registrar and two other persons. The board 
 of review had the right to strike off names from the list from their 
 own knowledge or testimony presented. Their decision was final 
 except on appeal to the supreme court. Immediately after closing 
 the registration the board of review were to make out fair copies of 
 the list for each precinct and deposit the original lists with the county 
 clerk. 
 
 The committee held that the board of review might strike off names 
 up to the moment of adjournment, but all persons who held certificates 
 and whose names were on the lists when the board adjourned were 
 legal voters. There was proof that a number of such voters offered 
 to vote and were refused, because their names were not on the copies 
 
298 DIGEST OF CONTESTED ELECTION CASES. 
 
 of the list furnished the precinct judges. The proof that they offered 
 to vote for contestant consisted of affidavits made at the time, with 
 the ballots attached, and the testimony of the United States super- 
 visor, identifying the affidavits and stating that the voters who made 
 them offered to vote, were refused, and made the affidavits and attached 
 the ballots in his presence immediately afterwards. The committee 
 received the testimony as evidence of the fact of rejection, of the 
 identity of the aflidavits and the circumstances of making them, and 
 the affidavits themselves as statements made at the time and part of 
 the res gestae. The affidavits showed that the voters were qualified 
 voters and had registration certificates, but that their names had been 
 wrongfuUjr stricken from the lists and their votes consequently refused. 
 This woud not have been sufficient except for other testimony show- 
 ing that lup to the time of the adjournment of the board of review 
 their nam es were still on the list. This being shown their votes were 
 counted for contestant. 
 
 In Hempstead County the return counted was made by an unauthor- 
 ized party, who, as the proof showed, never had had possession of or 
 canvassed the precinct returns. The return made by the county clerk, 
 based on a full canvass of the votes, showed a much smaller majority 
 for the contestee. The committee would have deducted the diflference 
 from the vote of contestee, except that the testimony was taken over 
 the protest of contestee, after the expiration of contestant's forty days, 
 and was hence inadmissible. Attention, however, was called to the 
 fact that the decision of this questibn either way could not be decisive 
 of the case. 
 
 In one precinct in Bogy County the ballots cast for contestee plainly 
 showed that they were cast for him for Congress, but the precinct 
 returns did not show for what office they were cast, and the county 
 clerk had refused, for that reason, to certify them to the secretary of 
 state. ,The committee counted the votes. In Drew County the returns 
 from ten of the fourteen precincts were so irregular and imperfect 
 that the clerk of the county testified that no one could make out a 
 correct return from them. Most of them did not even indicate where 
 or when the election was held, or for what office the votes cast for 
 contestant and contestee were given. Some of them were not sealed, 
 some not signed, and most of them did not show that the judges had 
 taken the oath. The committee regarded the irregularities as very 
 great, but it not being necessary for the decision of the case, did not 
 deduct the votes. 
 
 Making the deductions and additions called for by the evidence, Mr. 
 Snyder was shown to have a majority of at least 492 votes. The com- 
 mittee were unanimous in their decision, and the resolutions presented 
 were adopted by the House without debate or division. 
 
 [Smith, 24:7-259.] 
 
 (9.) George Q. Cannon. 
 
 Proceedings for expulsion. Charges of polygcmiy and of taking mi 
 oath inconsistent with allegiance to the United States. The majority 
 recommended exclusion., the minority that no action he taken. The 
 House did not consider the case. 
 
 Majority report by Mr. Smith; minority report by Mr. Harrison. 
 Under the resolution passed at the last session, the committee pro- 
 ceeded to consider the charges against Mr. Cannon. Mr. Cannon 
 
FORTY-THIBD CONGRESS. 299 
 
 consented to the use of the testimony taken in the case of Maxwell w. 
 Cannon, and from this and some additional testimony the majority of 
 the committee found the charge established that Mr. Cannon was 
 cohabiting with four wives, the last of whom he had married since the 
 passage of the act of 1862, making polygamy in the Territories a felony. 
 The testimony in regard to the oath taken in the Endowment House 
 was conflicting. The majority recommended a resolution excluding 
 Mr. Cannon from his seat. 
 
 The minority opposed any action. The testimony establishing Mr. 
 Cannon's polygamy was hearsay and inadmissible. Still the minority 
 concluded that the fact could probably be established by legal evidence. 
 If Mr. Cannon was to be expelled for it he should be expelled by a 
 two-thirds vote, and he should be expelled for no cause that would not 
 be sufficient to expel a member. The House had no doubt the power 
 to expel him by a majority vote, but the safer rule was to follow the 
 analogy of the case of a member. It was a universally known fact 
 that the majority of the people of Utah were Mormons, and would be 
 likely to elect a Mormon Delegate. Congress, with full knowledge of 
 this fact, had given them the power to elect a Delegate. It would be 
 a dangerous precedent to establish the custom of inquiring into the 
 moral character of members with a view to expulsion, and there could 
 be no justification for it in this case unless it was to strike a blow at 
 Mormonism. That blow could be much better struck by legislation. 
 Moreover, Mr. Cannon had never been convicted in a court of the 
 crime of polygamy. He was now under indictment and would soon 
 be tried. It would be much better to leave the issue to the courts. 
 
 When the case was brought up, the House, by a vote of 20 ayes, 
 noes not counted, refused to consider it at that time. It was not after- 
 wards called up. 
 
 [Smith, 259-275.J 
 
 (10) Gause vs. Hodges. 
 
 Returns omitted; UTiautlwrized polls: setting aside of registration ly 
 the governor. The majority reported tn favor of sitting member; the 
 minority in f amor of contestant. The Hovse took no action. 
 
 Majority report by Mr. Pike; minority report by Mr. Crossland. 
 
 There were twenty -four counties in the district; the sitting member 
 in his brief attacked the returns of two of them; the contestant denied 
 the correctness of the returns or the legality of the election in ten of 
 them. The committee rejected the vote of one of the counties attacked 
 by the sitting member, as the clerk of the county had never made an 
 abstract of the votes as required by law. The returns had been stolen 
 from his office, and he had based his abstract on the affidavits of the 
 judges of election in only a part of the precincts. No returns were in 
 evidence. Of the counties put in controversy by the contestant, the 
 question in three of them was the legality of polls opened (as the 
 majority of the committee held) without authority of law, in addition 
 to the regular and legal polls. Their votes had not been included in 
 the returns on which the certificate was based, and were not counted 
 by the committee. In several others it was charged that the abstract 
 of votes certified by the county clerk did not include all the votes of 
 the county. The committee held that the abstract legally forwarded 
 and acted on by the proper authorities was prima facie evidence of 
 the vote, and as the contestant had not offered the precinct returns, 
 
300 DIGEST OF CONTESTED ELECTION OASES. 
 
 or other sufficient evidence, to show the vote of any polls that may 
 not have been included, the vote as counted was allowed to stand. In 
 two or three other counties the registration had been set aside by the 
 governor and a new one ordered, under the power given the governor 
 by the State law. The new registration had been only partly com- 
 pleted, and the county clerks had refused to certify the votes of pre- 
 cincts not yet registered. The committee held that the power of the 
 govenor to set aside an old registration was inseparable from the power 
 to order a new one, and should not be so construed as to disfranchise 
 the people of a county. The contestant in one countj' assailed the 
 legality of the proceedings establishing election precincts on the 
 ground that no quorum of the court had been present. This objection 
 to these precincts was not included in the notice of contest, and hence 
 was not open to contestant. If it were it ought not to prevail, as the 
 order of the court had been generally acted upon as valid. The pre- 
 cincts were to "be regarded as established under color of law, and as 
 having a de facto existence. " Counting the votes according to the 
 findings of the committee, the sitting member was shown to have a 
 majority of 1,143 votes, and the committee recommended resolutions 
 declaring him entitled to the seat. 
 
 The minority disagreed to most of the findings of the committee. 
 The county abstracts objected to were mostly partial abstracts made 
 by the county clerks under fraudulent instructions from the attorney- 
 general, instructing them to reject the returns from all precincts where 
 there were irregularities, or where the votes of unregistered persons 
 were received. The clerks plainly had no right to reject these returns, 
 the law making it a penal offense for them to do so. Abstracts of all 
 the returns were in each case in evidence, and proved to be correct. 
 They were suflicient evidence of the votes. The ' ' outside polls " estab- 
 lished were established in accordance with the law, and were, strictly 
 speaking, the only legal polls in the precincts in question. The elec- 
 tions at them were shown to be legal, and only legal votes were received. 
 The minority, however, were willing that the votes of both polls in 
 each precinct should be counted. The minority agreed with the major- 
 ity in counting votes of counties and precincts not yet registered under 
 the second registrations ordered by the governor, and counted a few 
 additional precincts by accepting evidence not deemed sufficient bj^ the 
 majority. The findings of the minority showed a majority of 799 for 
 Gause, and they recommended resolutions accordingly. 
 
 The reports were submitted to the House February 24, 1875, but 
 never acted upon (the Hpuse being most of the time until the end of 
 the session engaged in the prolonged struggle over the "Force bill," 
 and the resolutions in regard to the condition of the governments of 
 the States of Arkansas and Louisiana). 
 
 [Smith, 291-322.] 
 
 (11) Lawrence w. Sypher. 
 
 Voting places abolished for partisan purposes ; fraudulent votes cast; 
 returns omitted. Majority report for contestant; minority report tlmt 
 the seat should he declared vacant. Contestant stoorn in. 
 
 Majority report by Mr. Robinson; minority report by Mr. Hazelton. 
 
 Mr. Lawrence had a certificate of election based on the returns of 
 
 the "Forman board," and Mr. Sypher one based on the returns of the 
 
FORTY-THIRD CONGRESS. 301 
 
 "Lynch board." Mr. Sypher was given the seat on his certificate, 
 without referring the matter to the Committee on Elections, and Mr. 
 Lawrence contested. The testimony being taken under a special reso- 
 lution of the House, after contestee had been sworn in, the case did 
 not come before the committee until the second session, and was not 
 reported on until February 27, 1875, four days before the expiration 
 of the Congress. 
 
 The committee did not attempt to decide whether the Lynch or the 
 Forman board was legally constituted, but found that the latter board 
 had actual possession of the returns and had correctly tabulated them, 
 except a few which were omitted. Supplying these omitted parishes, 
 the vote on the face of the returns stood: Sypher, 11,088; Lawrence, 
 13,035, a majority for contestant of 1,947 votes. This majority the 
 contestee sought to overcome by two charges: (1) That in Plaquemines 
 Parish the polls in the upper part of the parish were abolished shortly 
 before the election, leaving the largest part of the Republican voters 
 of the parish from 35 to 47 miles from the nearest polls; and (2) that 
 in the city of New Orleans a larger number of fraudulent votes were 
 counted for contestant than his returned majority. 
 
 The majority of the committee characterized "'the abolition of the 
 voting places as an outrage, for which there should be some relief." 
 But Mr. Lawrence was not a party to the wrong, and furnished a steam- 
 boat to carry voters of all parties down the river. The evidence seemed 
 to indicate that not over 350 votes had been lost to Mr. Sypher. The 
 Republican vote in 1874, when the election in this parish was quiet, 
 was only 377 more than in 1872, and the Democratic vote was also 
 increased. And in no case could votes lost to Mr. Sypher by reason 
 of the failure to establish voting places be added to his vote unless the 
 provisions of the enforcement act were strictly followed, which was 
 not claimed to have been done in this case. 
 
 The testimony relied on to establish fraud in New Orleans was very 
 conflicting and unsatisfactory. It consisted of the testimony of crimi- 
 nals swearing to their own crimes, part of whom at least had con- 
 sented to expose their crimes for a money consideration. They testi- 
 fied to a conspiracy to procure fraudulent registration and receive 
 fraudulent votes, but they had no means of estimating accurately the 
 number of votes affected. The committee concluded that the number 
 must have been less than 1,000, because (1) the Lynch board in its 
 canvass, based largely on estimates of political strength and strongty 
 biased in favor of contestee, had only counted for him 108 votes 
 more than the Forman board in the seven wards included in this dis- 
 trict; (2) the presence of United States supervisors must have pre- 
 vented much fraud in the Congressional election; and (3) the testi- 
 mony was general and did not specify particular acts of fraud, and the 
 estimates of the witnesses were " entirely too problematical to over- 
 throw positive returns." 
 
 If Sypher should be allowed 377 additional votes in Plaquemines 
 Parish and 1,000 should be deducted from Lawrence in New Orleans 
 there would stilL^e a majority of 570 votes for Mr. Lawrence; or, 
 taking the returns of the Lynch board, which elected Sypher by a 
 majority of only 74, and deducting from them the affidavits counted 
 as votes, which were simply manufactured for the occasion, a large 
 majority would still appear for Mr. Lawrence. The committee rec- 
 ommended that he be given the seat. 
 
302 DIGEST or CONTESTED ELECTION CASES. 
 
 A minority, composed of Messrs. Hazelton, Smith, Hyde, Todd, 
 and Thomas, reported that the title of both claimants was so tainted 
 with fraud that it was impossible to say that a legal election had been 
 held. In Plaquemines Parish less than one-half of the registered vote 
 had been cast on account of the abolition of voting places, and it was 
 in proof that the votes lost were nearly all Republican. The testimony 
 of the conspirators in New Orleans, part of which affected the whole 
 State, was not impeached and must be believed to be substantially 
 true. At least it was the testimony of men regarded by the leaders of 
 the pai'ty of contestant as fit to be intrusted with the management of 
 the election, and it was not in their mouths to say that the testimony 
 of these men under oath and not impeached could not be believed. 
 It showed that the so-called election was not an election at all, but a 
 conspiracy to defeat an election, and exposed methods which, if prac- 
 ticed in all the Congressional districts of the United States, would be 
 destructive of republican government. 
 
 The title of contestee was also tainted by the grossest irregularities, 
 less widespread and systematic, perhaps, than those on the other side, 
 and sought to be excused on the grounds that they were resorted to 
 to counteract the fraudulent machinations of those in power, but stiU 
 abundantly sufficient to destroy his title to the seat. The minority 
 recommended that the seat be declared vacant. 
 
 The case was not called up until the last day of the Congress, when 
 the resolutions of the minority were defeated by a vote or 87 to 143 
 and those of the majority adopted by a vote of 135 to 86, and Mr. 
 Lawrence was sworn in. 
 
 [Smith, 340-355.] 
 
FOKTY-FOURTH CONGRESS. 303 
 
 FORTY-FOURTH CONGRESS, 1875-1877. 
 
 Committee an Elections. 
 
 Mr. Harris, Virginia, Mr. Wells, Mississippi, 
 Thompson, Massachusetts, Baker, Indiana, 
 
 Blackburn, Kentucky, Brown, Kansas, 
 
 House, Tennessee, Townsend, New York, 
 
 De Bolt, Missouri, Beebe, New York, 
 
 PoppLETON, Ohio, Wilson, West Virginia. 
 
 (Mr. Beebe resigned as a member of the comrnittee, and Mr. Wil- 
 son was appointed in his place December, 1876.) 
 
 Cases. 
 
 (1) Frederick G. Bromberg vs. Jere Haralson, Alaham.a. 
 
 (2) Jesse J. Finley vs. Josiah T. Walls, Florida. 
 
 (3) John V. Le Moyne vs. Charles B. Farwell, IlVmois. 
 
 (4) E. St. Julien Cox vs. Horace B. Strait, Minnesota. . 
 
 (5) William B. Spencer vs. Frank Morey, Louisiana. 
 
 (6) Samuel Lee vs. Joseph H. Rainey, South Carolina. 
 
 (7) S. S. Fenn vs. T. W. Bennett, Idaho Territory. 
 '(8) Josiah G. Abbott vs. Kufas S. Frost, Massachtisetts. 
 
 (9) James H. Piatt vs. John Goode, jr., Virginia. 
 
 (lU) C. W. Buttz vs. E. W. M. Mackey, Sotith Carolina. 
 
 (1) Bromberg vs. Haralson. 
 
 Charges of intim^idati/m, fraudxdemt voting^ and bribery. Sitting 
 memher retained the seat. 
 
 Report by Mr. Harris. 
 
 The contestant sought to overcome the majority returned ior the 
 sitting member by the charges that large numbers of fraudulent votes 
 had been cast for the sitting member, and that voters had been made 
 to vote for him by bribery, intimidation, and undue influence. 
 
 In Mobile County both intimidation and fraudulent voting were 
 charged. The evidence of the former charge was so plainly insufii- 
 cient that the committee did not deem it necessary to analyze it. The 
 evidence of the latter charge was the testimony of the president and 
 some of the members of a colored club of some 250 members, to the 
 effect that the said club was organized for the pui-Jjose of fraudulent 
 voting, and that the plans thus made and organized were carried out. 
 The president of the club was at the time of giving his testimony the 
 paid agent of the contestant, and his testimony, already weak as being 
 that of a conspirator testifying tO his own wrong, was further weak- 
 ened by this fact. He testified to the plans for fraudulent voting and 
 repeating, and that he saw squads of colored men on election day 
 apparently carrying them out, but he had purposely refrained from 
 seeing whether they actually did carry them out. Both he and the other 
 witnesses testifying to the fraud refused to submit to a thorough cross- 
 examination. Other members of the club testified that there were no 
 
304 DIGEST OF CONTESTED ELECTION CASES. 
 
 such arrangements made or instructions given. A slightly smaller 
 proportion of the colored vote than of the white vote was cast. The 
 majority of the voters were white, and it was inconceivable that 250 
 negroes would have been permitted to carry out such frauds. If illegal 
 votes were cast, the proof did not show how many there were, and the 
 ~only remedy would be to throw out the whole vote, which would be 
 decisive of the case against the contestant. 
 
 In Monroe County some casks of Government bacon had been 
 received and distributed among the sufferers from the floods. It was 
 charged that this was used for purposes of bribery. In one town it 
 was distributed without asking any questions, and plainly did not 
 affect the vote. In another town a rumor was prevalent among the 
 negroes that it was necessary to vote the Republican ticket in order to 
 be entitled to bacon. The Republican leaders made no attempt to 
 deny this rumor, and the vote was probably increased by it. But the 
 specific proof only showed 10 or 12 voters influenced. From the 
 increase in the vote over that of 1872 it might perhaps be inferred 
 that some 300 voters were influenced, but these would not be sufficient 
 to overcome the majority of contestee if deducted. There was a small 
 squad of soldiers in this county, but they made no attempt to influence 
 the vote of. anyone. The deputy United States marshal testified that 
 the colored voter's had unlimited confidence in him, and that he could 
 control the votes of at least 900 of them. This, if true, would not 
 justify the rejection of their votes, and it was probably only idle boast- 
 ing. General charges of illegal voting and undue influence were made 
 in regard to Wilcox County^ but they were "too vague and uncertain 
 to be good." No testimony had been taken by the contestant in this 
 county during his time for taking testimony in chief, and the notices 
 to take testimony during the last ten days specified that it was to be in 
 rebuttal. It was plainly testimony in chief, and was objected to at 
 the time on that ground. The committee rejected all of contestant's 
 testimony in this county. 
 
 In Dallas County it was charged that thousands of votes had been 
 cast for contestee by minors and nonresidents, and that 2,000 persons 
 had been prevented from voting for contestant by intimidation and 
 deception. It was proved that 20 persons voted for contestee who 
 appeared to bystanders to be less than 21 years of age; each of them 
 made afiidavit that he was of age. There was also evidence that 9 
 colored men voted who may not have been 'bona fide residents. There 
 was general testimony that large numbers of colored men had moved 
 from the county within the preceding two years, and from this fact 
 and the number of votes cast it was argued that nonresidents must 
 have voted. The testimony was held to be insufficient. It was also 
 proved that the canvass was a heated one and inflammatory language 
 used, but no such condition of violence existed as would interfere 
 with the freedom of the election. 
 
 No detailed statement of the illegal votes proved is given, but the 
 evidence is found to be entirely insufficient to overcome the returned 
 majority of 2,700. The committee were unanimous in their decision 
 in favor of the sitting member, and the House adopted the resolution 
 presented without division. 
 
 [Smith, 355-367.] 
 
FORTY-FOUBTH CONGRESS. 305 
 
 (2) FiNLET VS. Walls. 
 
 I'rauds., illegal votes, i/rregvlcmties. Majority remort for contestant; 
 Tninority report for sitting memier. Contestant gvoen the seat. 
 
 Majority report by Mr. Thompson; minority report by Mr. Town- 
 send. 
 
 The sitting member had a majority of 371 votes on the face of all 
 the returns, and received the certificate. The contestant charged that 
 certain illegal returns ought to have been rejected by the State can- 
 vassers, which would have given him the certificate. This point was 
 sustained by the majority of the committee, but is so vaguely stated that 
 it is impossible to tell just what the point was, or on what grounds it 
 was based. It was held to be immaterial to the case on the merits. 
 Most of the remaining charges were substantially alike. Under the laws 
 of Florida a voter was required to be registered at least six days before 
 the election, and the registering officers had the right to strike from 
 the list the names of persons whom they knew of their own knowledge 
 or ascertained by testimony to be no longer entitled to vote. Any 
 person ^hose name was thus erased would be entitled to vote upon 
 taking oath before the election officers that his name had been improp- 
 erly stricken from the registry and taking the oath prescribed by law 
 for challenged persons. A person might vote at any precinct in the 
 county where he resided, and it appeared to be the custom for the col- 
 ored voters to vote so far as possible, at one precinct, at which few 
 white voters would vote. All the precincts in controversy were pre- 
 cincts of this sort, and the vote in each case was several hundred for 
 contestee, and from 10 to 30 for contestant. In each one of these pre- 
 cincts it was shown that votes were cast bj' persons whose names were 
 not found on the copy of the registry list in the hands of the judges of 
 election. An oath was administered to each one of these persons, but 
 contestant charged that it was not the oath required by law, and the 
 majority of the committee sustained the charge. The testimony. was 
 indefinite. In one case a supervisor of election testified that he had 
 looked up the form of oath required by the law, and that the form he 
 found was used; it was the oath required of challenged voters, with 
 the addition that each voter swore that he had been registered; he was 
 quite confident the oath did not also state that the voter's name had 
 been improperly stricken from the lists. In other cases election officers 
 attempted to repeat the form of oath from memory, but could not gi-\'c 
 it all. As they gave it it generally included a statement that the voter 
 was a qualified voter and had been registered, but not a statement that 
 his name had been improperly struck from the registry list. In one 
 or two cases they expressed the opinion that it dia not include such a 
 statement; in other cases the question was not asked. The form of 
 oath given in section 16 of the election laws of 1868 (the oath to be 
 given to challenged voters without the addition required of voters 
 whose names were not on the registry list) being read to the witnesses, 
 most of them stated that they recognized it as the form of oath whicn 
 they had used. 
 
 The county clerks testified that they Had comparea me lists oi voters 
 with the original registry lists on file in their offices, and had found 
 that large numbers of the voters whose votes were thus admitted on 
 their oaths, because their names were not (or at least were not found 
 
 H. Doc. 510 20 
 
306 DIGEST OF CONTESTED ELECTION CASES. 
 
 by the election officers) on the copies of the lists at the polls, were 
 actually registered, and their names were on the original lists. Where 
 this evidence showed the number thus found, the committee allowed 
 these votes to stand, but deducted the remainder, not found on the 
 lists at the polls, and not shown to be on the original list, from the 
 votes of the candidates w-o rata (the loss falling, of course, chiefly on 
 contestee, who had received nearly all the votes at the precincts in 
 question). Mr. Blackburn, however, announced his opinion that all 
 the votes should be deducted, whether found on the original lists or 
 not. 
 
 In each of these precincts other irregularities were charged; in 
 some of them that part of the officers were not sworn, or ineligible; 
 in others, that the polls were not opened at the proper hours; in 
 others, that the polls were adjourned for dinner, and the box not 
 properly secured; in others, that there were discrepancies between 
 the ballots, poll books, and returns; in others, that the returns were 
 irregularly made; in one that the ballots were numbered contrary to 
 law, and in another that an excess of ballots was not "purged" ac- 
 cording to law. Some of these charges were held to be not proved, 
 and the rest were held to be insufficient to destroy the validity of the 
 returns or election. But Messrs. Blackburn, Poppleton, De Bolt, 
 and Wells announced their opinion that the irregularities in four of 
 the precincts were sufficient to require the rejection of the whole vote, 
 which would largely increase the majority found by the committee 
 for contestant. 
 
 Unless some of the precincts above discussed were thrown out 
 entirely, the findings of the committee in regard to them would not 
 overcome all of the majority of contestee. The remaining precinct in 
 controversy, and the one on which the decision of the case must turn, 
 was Colored Academy, in Columbia County. In this precinct fraud was 
 charged, and the committee threw it out altogether. The vote cast 
 was 588 for Walls and 11 for Finley. Kejecting this vote, and deduct- 
 ing the votes found to be illegal in the precincts previously discussed, 
 the returned majority of 371 for Walls would be overcome, and a 
 majority of 343 shown for Finley. 
 
 The fraud was charged to have been planned and committed by one 
 Dr. Johnson, with the object of securing his election to the State sen- 
 ate. Dr. Johnson had been killed soon after the election, and hence 
 could not be called as a witness. Part of the evidence of the fraud 
 consisted of statements which the witnesses testified Dr. Johnson had 
 made to them; the rest was circumstantial. Only part of the officers 
 of election were those regularly appointed. Dr." Johnson had invited 
 other persons to act in the place of some who he said would not be 
 able to attend. One of these persons spent the night before the elec- 
 tion in his house, and another took breakfast with him. The testunony 
 as to the time the polls were opened was conflicting, but they were 
 probably opened soon after 7 o'clock, instead of S, the legal hour. 
 Dr. Johnson manifested great eagerness to have the polls opened as 
 early as possible on account of the large vote. All the witnesses testi- 
 fied that he was "figuring how many votes must be cast a minute," 
 and fearful that there would not be time to get all the vote in. (There 
 were 600 votes cast at this poll.) One witness also answered in the 
 affirmative to a question asking him if it was not his impression that 
 Dr. Johnson wanted the polls opened early in order to get votes in 
 without being challenged. 
 
FOKTY-FOUKTH CONGRESS. 307 
 
 The number of voters whose names were not found on the registry 
 list at the polls, and who were permitted to vote on taking an oath, 
 was estimated as at least Y5. One witness swore that they all took 
 the oath prescribed in section 16 of the election laws (the oath required 
 of challenged voters) and no other. The officer who administered the 
 oath testified that most of them took the oath in section 16 only, but 
 a few also took the oath that they had been registered, and that their 
 names had been improperly struck from the list. There were 16 names 
 found on the poll list as voting at the market-house precinct which 
 were also found on the poll list of colored academy. One witness testi- 
 fied to a remark of Dr. Johnson which, it was his impression, referred 
 to voters voting at both of these precincts. Dr. Johnson was also said 
 to have stated that he had brought in 52 voters who were registered in 
 Columbia County, but who were now in other counties, at an expense 
 of over $300. 
 
 One of the clerks of the election testified that Dr. Johnson had 
 given him a list of about 50 names to copy the night before the election. 
 He was not told what the purpose of the names was, but his inapression 
 was that he was expected to work them in as votes for Dr. Johnson; 
 he had not done so, and had destroyed the list. Another witness testi- 
 fied that near the close of the day Dr. Johnson had asked some one if 
 he could not fix up a trick to capture the returns from a neighboring 
 Democratic precinct. No attempt was made to do so. The witness 
 believed the election to be unfair, from the fact that Dr. Johnson 
 would call out names and numbers, a person would come up, take a 
 ticket, call out the same name and number and vote, and also from the 
 fact that he believed that some men voted under fictitious names; no 
 one told him so. One of the inspectors of election had been heard 
 since the election, while under the influence of liquor, to say that the 
 votes at his precinct did not tally within 30 or 40, but "there was 
 always a wheel within awheel." 
 
 From all these circumstances the majority of the committee held 
 that fraud had been committed, with the connivance of the election 
 officers, and that the returns must be rejected and no votes counted 
 except upon proof of the number of legal votes cast. There was proof 
 of the number of votes aotiuiUy cast for each candidate, but as the 
 charge was illegal voting this was not sufficient, and all the' votes were 
 rejected. 
 
 The minority found that these circumstances were not sufficient to 
 prove fraud. The contestee was put at a disadvantage in regard to 
 this precinct by the facts that the county clerk's office had been burned 
 soon after the election, so that the original registration and poll lists 
 could not be produced; that Dr. Johnson had been murdered and could 
 not be produced, and that the contestee was not personally present at 
 taking depositions in this county. He had asserted that if given time 
 he could produce evidence contradicting all the evidence produced, but 
 the committee had refused him opportunity. The circumstances 
 thought to show fraud could all be more easily explained in other 
 ways, except one or two facts sworn to by unreliable witnesses and 
 plainly false. Nearly all the testimony was hearsay; it was only such 
 as the attorney for contestant chose to present, and was in that sense 
 exparte, and it was entirely insufficient to show fraud. 
 
 The other precincts were also discussed by the minority and the 
 testimony held to be insufficient to establish the fact that the voters 
 
308 DIGEST OF CONTESTED ELECTION CASES. 
 
 did not take the full oath required by law in the face of the presump- 
 tion that they had done so. And in any case most of them were shown 
 to be actually registered on the original lists, and the few others would 
 not be sufficient to change the result unless the colored academy vote 
 were rejected, and if that were rejected the decision of the other points 
 was immaterial. 
 
 The case was debated for two days, and the resolutions presented by 
 the minority were rejected by a vote of 84 to 136. The resolutions 
 
 S resented by the committee were then passed without division, and 
 Ir. Finley was sworn in. 
 [Smith, 367-406.] 
 
 (3) Le Moyne vs. Farwell. 
 
 Fraud, irregularities, votes of pampers in the poorhcmse. Majority 
 report for contestant; minority report for contestee. Contestant gvuen 
 the seat. 
 
 Majority report by Mr. Harris; minority report by Mr. Brown. 
 
 The two points on which this case turned were the dLsposition to be 
 made of the vote of a certain precinct where fraud was conmiitted, 
 and the right of paupers, sent to the poorhouse from other parts of the 
 county, to vote in the poorhouse precinct. 
 
 Mr. Farwell received a majority of 186 votes in the district. In the 
 first precinct of the Seventeenth Ward of Chicago, where fraud was 
 proved, he received a majority of 171 votes. In this precinct a fraud- 
 ulent registration list was prepared, and by its use a large number of 
 illegal votes were cast. Men were registered from vacant lots and 
 from houses where they were proved not to live. Some voted on the 
 names of dead men, and some voted several times. The ballot box 
 was kept for two days after the election in the house of a candidate 
 on the same ticket with contestee before the official returns were made. 
 The ballots were then sealed up and deposited with the county clerk. 
 When they were opened during the taking of testimony in the case it 
 was found that there were 183 names on the poll book for which bal- 
 lots with corresponding numbers could not be found, and 198 duplicate 
 or triplicate numbers. There were only 673 names on the poll book, 
 but the ballots Were numbered up to 677. 
 
 These facts, and the existence of fraud, were conceded by both sides, 
 but the majority and minority differed as to the disposition to be made - 
 of the votes. The majority held that the poll was to be purged of 
 illegal votes. There were 252 persons shown to have voted illegally 
 who appeared from the numbered ballots in the box to have voted for 
 contestee. The committee deducted these votes from contestee. The 
 minority held that the ballots in a box plainly shown to have been 
 tampered with, as in this case, were not evidence of how the persons 
 whose numbers corresponded to the numbers found on the ballots 
 voted; that the returns of fraudulent election officers were not evidence 
 of the vote, and that no course was left except to reject the returns 
 and count such votes as were proved nUunde. Both sides had thus 
 proved a few votes, which were counted by the minority, except some 
 proved by contestant during his ten daj's for rebuttal. 
 
 If the ruling ofthe majority in regard to this precinct were followed, 
 it would be decisive of the case, whatever disposition might be made 
 of the other points. The ruling of the minority, deducting from con- 
 
FORTY-FOUBTH CONGBESB. 309 
 
 testee his majority of 171 at this precinct, would not quite overcome 
 his returned majority, but illegal votes proved in other precincts 
 would overcome the slight remainder, except for a counterclaim in 
 regard to votes illegally cast for contestant by paupers in the county 
 poorhouse. 
 
 These persons were inmates of the county poorhouse. They had 
 been taken to the polls by an officer of the institution, who claimed 
 then, and also when called as a witness in the case, that they were not 
 paupers, but employees. Several of them were shown to be regular 
 employees, and their votes were allowed by both sides. The remainder 
 appeared to be employees onlj^ in the sense that they did work about 
 the farm, for which they were allowed, in lieu of wages, extra cloth- 
 ing, food, privileges, etc. The minority found them to be paupers, 
 and the majority, while presenting arguments to show that they were 
 not proved to be paupers, did not press the point strongly. But the 
 majority held that if they were paupers they might acquire a voting 
 residence at the poorhouse, while the minority held that their legal 
 residences were the places from which they were sent to the poorhouse. 
 State and Congressional decisions were quoted by both sides, showing 
 a conflict of authorities. Each side concluded that the weight of author- 
 ity was in favor of the ruling favored by it. The supreme court of 
 Illinois had a short time before passed on the point, in a case involving 
 the liability of a township for the support of a pauper. It had decided 
 that the residence of a pauper was the place from which he had come 
 to the poorhouse. The majority held that questions of residence must 
 necessarily be strictly construed when involving questions of property 
 and public burdens, and that it would have been a very unjust decision 
 to hold that the township in which a county poorhouse is situated could 
 be held liable for the support of all the paupers therein contained; 
 but the decision of the State court in construing a police law of the 
 State ought not to be binding on Congress in deciding on a question of 
 the right of suflfrage. 
 
 The minority held that while the decision in question was made in 
 a case arising under the law for the support of paupers, it covered in its 
 terms the whole question of the residence of paupers, and, under the 
 rule adopted by all Federal tribunals, was binding on Congress. The 
 minority deducted the-votes of the paupers from contestant, for whom 
 they were cast. Following the ruling of the minority both these issues 
 would show contestee elected by a majority of from 3 to 28 (depending 
 on the decision of other minor points not here discussed). To follow 
 the ruling of the majority on either issue would give the seat to con- 
 testant. 
 
 The case was debated several days in the House, and the resolutions 
 presented by the minority were rejected by a vote of 89 to 129. The 
 resolutions presented by the majority were then adopted without divi- 
 sion, and Mr. Le Moyne was sworn in. 
 
 [Smith, 406^28.] 
 
 (4) Cox vs. Strait. 
 
 Election districts illegally established. Adjoumm&)it for dinner. 
 Irregularities. Bribery. Sitting member retained the seat. 
 
 Eeport by Mr. Harris. 
 
 The allegations in this case were: (1) That all the votes cast in what 
 had formerly been the count^'^ of Monongalia, but which had been 
 
310 * DIGEST OF CONTESTED ELECTION CASES. 
 
 consolidated with the county of Kandiyohi by the legislature, were 
 illegally given and should be rejected; (2) that certain voting precincts 
 in the county of Lyon had been illegally established; (3) that the votes 
 of certain precincts ought to be rejected for irregularities, consisting 
 chiefly in adjourning for dinner and leaving the box unprotected; and 
 (4) bribery on the part of contestee. 
 
 The evidence was found to be wholly insufficient to sustain the 
 charge of bribery. The mere fact of adjournment for dinner, with- 
 out fraud, was held to be insufficient to vitiate an election, especially 
 under the provisions of the law of Minnesota that returns substantially 
 complying with the law should not be rejected. The irregularity, and 
 some of the other irregularities complained of, were characterized as 
 grave ones; but as there was no proof, or even allegation, that fraud 
 was committed, and some negative proof that it was not committed, 
 the returns were allowed to stand. The allegation that certain pre- 
 cincts in Lyon County were illegally established was sustained. The law 
 provided that the board of county commissioners should meet at certain 
 times in the year, and in extra sessions at other times when deemed 
 necessary by a majority of the board. At their stated meetings in 
 January and September they were empowered, under certain circum- 
 stances, to establish election districts. The election districts com- 
 plained of in this county were established at an extra session, and were 
 hence illegal. All the votes cast at them were rejected. 
 
 The charge that the consolidation of the counties of Monongalia and 
 Kandiyohi was illegal, and that the territory formerly included in 
 Monongalia County was consequentlj' not included in the Second Con- 
 gressional district, was not sustained. Under the constitution of Min- 
 nesota the legislature had the right to establish new counties containinj: 
 at least 400 miles and to enlarge the dimensions of counties alreadj' 
 established at the time of the adoption of the constitution, but not to 
 reduce them below 400 miles. The contestant claimed that the con- 
 solidation of these two counties under the name of one of them, being 
 virtually an abolition of the other county, was a reduction of that 
 county below the limit of 400 miles. But the committee held that the 
 evil against which the provision of the constitution was directed was 
 not the abolition of counties, but the construction of counties smaller 
 than 400 miles. The action of the legislature in this case had precisely 
 the opposite effect, and there being nothing in the constitution to pro- 
 hibit it, the consolidation of the counties by the legislature was clearly 
 constitutional. But even if it were not, the claim of contestant could 
 not be sustained. The legislature in dividing the territory of the 
 State into Congressional districts had prescribed that certain named 
 counties should constitute the First district; certain others, including 
 Kandiyohi, the Second district; and the remainder of the State the 
 Third district. The legislature in designating the county of Kandi- 
 yohi as part of the Second district plainly must have intended the 
 county as formed by itself, and could not be construed to have placed 
 the territory formerly constituting the county of Monongalia in the 
 Third district. 
 
 Deducting from the vote of contestee the majority he received in 
 the illegally established districts in Lyon County, he was found still to 
 have a majority of 110 votes. The committee were unanimous in sus- 
 taining the right of contestee to the seat, and the House adopted the 
 resolutions presented without debate or division. 
 
 [Smith, 428-437.] 
 
FORTY-FOURIH CONGRESS. 311 
 
 (5) Spencer vs. Mokey. 
 
 Irregularities: Majority report for contestant; minority report for 
 contestee. Contestant gvveii the seat. 
 
 Majority report by Mr. House; minority report by Mr. Wells. 
 
 The election and returns of the Fifth ward of Concordia Parish and 
 
 of all five wards of Carroll Parish were brought in issue in this case. 
 
 In the district outside of the contested wards contestant had a majority 
 
 . of 1,396 votes, which would be much more than overcome if the 
 
 returns of the six contested wards were to be counted. 
 
 The return of the Fifth ward of Concordia Parish was attacked on 
 the grounds that the box was carried on the night of the election 16 
 miles to the county seat before counting the vote; that two days were 
 consumed in the count, and that the tally sheets were kept by unsworn 
 outsiders. The law of Louisiana in force at previous elections had 
 required the box to be taken to the county seat to be counted, but the 
 new law required the count to be made at the polls, immediately at 
 the close of the election, in the presence of such electors as chose to 
 be present, and the returns to be made within twenty-four hours. 
 The evidence was the testimony of one of the judges of election, cor- 
 roborated in all respects but one by each of the other officers of elec- 
 tion. He testified that at the close of the polls the other judges were 
 of the opinion that the box should be taken to the county seat to be 
 counted. He was of the contrary opinion, but, having no book of 
 instructions, was governed by the wishes of the other judges. In this 
 he was contradicted by one of the other judges and partlj"^ by another. 
 The remainder of his testimony was corroborated. The box was locked, 
 he taking the key and another judge the box. Part of the way he rode 
 in the buggy with the judge who had the box. He was a friend of 
 contestant, the judge who had the box of contestee. The count was 
 partly completed that night, and finished during the next day and 
 night. Whenever the judges separated for any cause, the box was 
 locked, and the box and key kept by judges of opposing parties. The 
 tally list was kept by such persons as could be found at the court- 
 house, under the supervision of the judges. The witness did not believe 
 it was very regularly kept, but thought it was as correctly kept as it 
 could have been under the circumstances. 
 
 The committee found that the irregularities and violations of law 
 were of an extraordinary nature, and the testimony somewhat suspi- 
 cious, but, waiving the question whether the provisions of the law in 
 regard to the place, time, and public manner of counting the vote, 
 which were violated, were directory or mandatory, the requirement 
 that the officers should make a correct count was certain!}- mandatory. 
 It was impossible for the judges to know whether the count was cor- 
 rect or not if the tally sheet, on which the returns were based, was 
 kept by unsworn outsiders. It was impossible to believe from the tes- 
 timony that the supervision of the tally keeper by the judges was of 
 such a nature that they could know whether the tally was correctly 
 kept or not. Unless it was correctly kept, the returns were incorrect. 
 
 The commissioners disregarded an imperative provision of the law, without the 
 observance of which there can be no safety or certainty in elections. The integrity 
 of the returns and theiv prima fade character are therefore destroyed. There being 
 no proof outside of the returns of the vote of this ward or poll, it must be excluded 
 from the count. 
 
312 DIGEST OF CONTESTED ELECTION CASES. 
 
 In Carroll Parish it appeared that the ballots and other papers 
 required to be deposited with the clerk of the county were not to be 
 found in the office. A deputy clerk testified that they had never been 
 filed, but a judge of election of one of the wards testified that he had 
 filed hi.s, and others testified generally that they had done their full 
 duty. The committee considered the proof sufficient to establish the 
 vote of the Fourth and Fifth wards, but rejected that of the First, 
 Second, and Third wards. 
 
 In the First Ward the proof of the vote was one of the original 
 returns, produced by a witness who had been a commissioner of elec- 
 tion in the Third Ward, but had no official connection with this ward. 
 He testified that it had been given him by the county clerk. Its iden- 
 tity and correctness were sworn to by the commissioners whose names 
 were signed to it. The committee hesitated to receive as evidence of 
 the vote a return found in the unexplained possession of an unauthor- 
 ized outsider, and unaccompanied by its legal companions, the ballots, 
 tally sheets, etc., whose disappearance was unexplained. But there 
 were other infirmative considerations which were conclusive of the 
 invalidity of this return. There was evidence that the commissioner 
 who received the ballots had changed one or two of them before put- 
 ting them into the box, and he had been seen handing out greenbacks 
 to voters with their registration tickets. 
 
 In the Second Ward there was evidence that part of the signatures 
 to the return counted by the State board were forged. There were 
 no ballots or tally sheets from this ward, as from the others. The 
 poll list was in evidence, showing 713 votes cast. The officers of elec- 
 tion testified from memory that the vote was 48, 49, or 60 for Spen- 
 cer, 3 or 4 blank on Congressman, and the rest for Morey. One wit- 
 ness testified that he had found 65 votes for Spencer on the tally sheet, 
 and he thought more were cast. The tally sheet had been partly kept 
 by unsworn bystanders. The committee found that the return was 
 impeached and not evidence of the vote, and that the memories of wit- 
 nesses, no two of whom exactly agreed, as to the vote cast at an elec- 
 tion six months before, could not furnish evidence certain enough to 
 establish the vote, especially when they were based on the count of a 
 tally sheet partly kept by unsworn outsiders. 
 
 Fronj the Third Ward the returns and other papers had also disap- 
 peared. The evidence of the vote was the testimony of one witness 
 that he thought about '550 votes were cast, Spencer received 7, there 
 were 2 blanks for Congress, and Morey received the rest; and evidence 
 that one of the judges of election had made affida\'it immediately after 
 the election that 510 votes were cast, Spencer received 7, 2 were blank, 
 and Morey received the remainder. Most of the witnesses testified 
 that the election was quiet and universally conceded to be fair, but 
 one witness testified to disturbances between two factions of the Repub- 
 lican party, both of which supported contestee for Congress. The 
 committee held the evidence to be insufficient to establish the vote. 
 
 The minority disagreed as to all these points. The action of the 
 commissioners of the Fifth Ward of Concordia Parish in taking the 
 box to the county seat to be counted was due to a misconception of the 
 law, and every precaution was taken to prevent even the possibility or 
 suspicion of fraud. The House had frequently decided that the intro- 
 duction of unsworn persons to assist in carrying on the election or 
 making the returns did not vitiate the return in the absence of proof 
 of fraud. 
 
FORTY-FOURTH CONGRESS. 313 
 
 In Carroll Parish no proof was furnished by either side to account 
 for the mysterious disappearance of the ballots and tally sheets from 
 the clerk's office. But their disappearance ought not to deprive con- 
 testee of the vote he actually received, if that vote could be ascertained 
 in any way. In the First Ward the proof was conclusive. The origi- 
 nal return was produced by an unauthorized person, but he testified 
 that he had received it from the county clerk, and the commissioners 
 who made it out and signed it testified to its identity, and that it had 
 not been tampered with, which would cure any irregularities in the 
 manner of its presentation. In the Second Ward the proof of the 
 number of votes cast was the original poll list. The judges of election 
 agreed that Spencer had received 48, 49, or 50 votes, there were 3 
 blanks, and Morey had received the rest. A partisan of contestant's 
 testified that he had found 65 votes for him on the tally sheet; it was 
 conceded the rest were for Morey. Contestant certainly could not 
 claim more votes than the highest number testified to fox him, or deny 
 to contestee the least number testified to. The case of the Third Ward 
 was similar. In all these wards it was conceded that an election was 
 held, that it was fairly and regularly held, and the votes regularly and 
 correctly counted. That election ought not to be set aside on account 
 of the unexplained disappearance of all the papers which should have 
 been in the county clerk's office, if the vote cast could be ascertained 
 in any way. The evidence was such as to satisfy the minds of the 
 minority as to the number of votes cast for each candidate, but if it 
 were conceded that it was too indefinite or not legally sufficient, the 
 equities of the case forbade the seating of contestant. Whether the 
 vote in these wards could be definitely proved or not, the evidence was 
 uncontradicted that contestee had received nearly all the votes cast in 
 them. It followed that contestant was the minority candidate, and if 
 the wards in question must be thrown out, a new election ought to be 
 ordered rather than seat the minority candidate. 
 
 The case was fully debated, and a substitute resolution offered by 
 Mr. McCrary, giving the parties further time to prove the actual vote 
 in the first three wards of Carroll Parish, was rejected by a vote of 76 
 to 101. The resolutions presented by the minority were also rejected 
 by a vote of 74 to 99, and those presented by the majority adopted with- 
 out division. Mr. Spencer was sworn in a few days later. 
 
 [Smith, 437-589.J 
 
 ^ (6) Lee vs. Rainet. 
 
 Name im/properly spelled on hallots. Contestee retained the seat. 
 
 Report by Mr. Harris. 
 
 In the county of Georgetown 669 ballots bearing thejiame " Jas. H. 
 Rainey " were cast. It was proved that they were printed for Joseph 
 H. Rainey and distributed in nis interest; that the voters were informed 
 by the person who had printed the ballots that they were for Joseph 
 H. Rainey, and that there was no person by the name of James H. 
 Rainey, or any similar name, except contestee, a candidate for Con- 
 gress. The committee held the law to be that where the intention of 
 the voter was clearly shown it should be followed, if it could be done 
 without contradicting the ballot. In this the intention was unnlis- 
 takable, and the committee unanimously refused to reject the ballots. 
 The resolutions.presented confirming the sitting member in his seat 
 were adopted without division. 
 
 rSmith. 589-592.1 
 
314 digest of contested election oases. 
 
 (7) Fenn vs. Bennett. 
 
 Returns rejected for irregularities hy Territorial canvassvng hoards 
 counted and contestant given the seat. 
 
 Report by Mr. House. 
 
 Returns had been rejected by the Territorial canvassing board 
 because votes were returned for Hon. S. S. Fenn; because the Con- 
 gressional return was not made on a separate sheet, and because the 
 county returns had been canvassed by three county officers under an 
 old law instead of by the county commissioners, as required by the law 
 then in force, and for other irregularities. The committee counted all 
 the returns, there being no charge that they did not correctly repre- 
 sent the vote, and recommended the seating of contestant, who had 
 received a majority of all the votes. The resolutions presented were 
 passed without debate or division, and Mr. Fenn was sworn in. 
 
 [Smith, 591, 592.] 
 
 (8) Abbott vs. Fkost. 
 
 Fraud, irregularities, illegal votes, a/nd iribery. Majority report for 
 contesta/nt; minority report fm' contestee. Qmieatant given the seat. 
 
 Majority report by Mr. Poppleton; mino'-ity report by Mr. Baker. 
 
 Contestant charged that the ballots, check list, and return of the 
 Fourth Ward of Chelsea were not returned forthwith by a constable, 
 but were returned the next morning by a policeman; that certain votes 
 cast for him without giving his name in full had not been counted for 
 him, and made general charges of fraud, bribery, and illegal voting. 
 
 The law required the officers of election to count the votes, and 
 after making out their returns to seal up the ballots and forward them 
 forthwith by a constable or ward officer to the citj- clerk's office. The 
 count in the other wards of Chelsea was completed by 9 o'clock in the 
 evening and the election papers regularly forwarded, but in the Fourth 
 Ward the ballots were not returned until after 1 o'clock. The ballots 
 were sealed up and given to a police officer, who carried them to the 
 city clerk's office, and finding it closed, took them into the marshal's 
 office and left them with the captain of the night watch. The next 
 morning at 7 o'clock he received the envelope trom the night watch- 
 man, found that the seals h^d not been tampered with, and delivered 
 it to the city clerk. The ballots were afterwards recoupted by the 
 board of aldermen, with the ballots of other precincts, and found to 
 agree with the returns regularly forwarded on the night of the elec- 
 tion to the city marshal's office. 
 
 The committee held that the law had been violated in not returning 
 the ballots forthwith to the city clerk's office, in forwarding them by 
 an officer not authorized by law, and in leaving them for several hours 
 in the custody of an unauthorized person. 
 
 We are clearly of the opinion that the provisions of the statute, which have been 
 so totally and unblushingly disregarded in this caae, are not merely formal and 
 directory, but vital and essential, in order to render the election fair and free from 
 fraud or the suspicion of fraud, for we hold it to be the duty of election officers to so 
 conduct the election and everything thereto appertaining as to as carefully guard 
 against suspicion of or opportunity for fraud aa fraud itself. Nothing short of this 
 will satisfy either the spirit or letter of a statute made and enacted to protect and 
 maintain the purity of elections, as was the unquestioned purpose of the law under 
 consideration. 
 
FOETY-FOUKTH OONGEESS. 315 
 
 The ballots having been ' ' out of the legal and proper custody, it 
 must be proven that, while illegally held, they were not tampered 
 with." But the night watchman, in whose custody the}' were for seven 
 hours, was not called as a witness. And the committee found ' ' serious 
 reasons for suspecting that actual fraud was committed in favor of the 
 returned member in this ward." A witness testified that he had made 
 the rounds of the precincts on the night of the election and had stopped 
 at this precinct after 10 o'clock. The count appeared to be completed, 
 and he was told that the returns had been sent to the city marshal's 
 office. He was told the vote, and going to the city marshal's office, 
 was also told the vote; the two statements agreed. His memory of 
 the statements made him on the night of the election was that the vote 
 was about 400 — perhaps more — for Frost and about 150 for Abbott. 
 The vote as returned, and as found by the board of aldermen in count- 
 ing the ballots, was 575 to 105. A witness also testified that he had 
 overheard one McMichael, a partisan of contestee, say that he had 
 given instructions to have the returns of this ward kept back. This 
 was denied by McMichael, but the committee held that the testimony, 
 in connection with other testimony, was "not without significance, 
 and taken with the other facts and circumstances in the case, presents 
 such evidences of actual fraud as to call loudly for affirmative evidence 
 of the entire absence of such fi-aud." "There being no proof aliunde 
 of the vote at Ward 4, Chelsea, your committee is of opinion that the 
 entire vote must be excluded from the count." 
 
 The minority disagreed as to this poll. The law which was violated 
 was clearly directory, and all that was proved was that the ballots 
 were not returned as promptly as they might have been, were carried 
 by a police officer instead of a constable, and were left sealed with a 
 night watchman because the clerk's office was closed. The fact that 
 the seals were intact showed that the ballots had not been tampered 
 with, and in any case the returns, which were regular and not in any 
 way attacked, were proof of the vote. The fact that the ballots, on 
 being recounted, agreed with the returns, was additional proof that 
 they had not been tampered with. The evidence relied on to estab- 
 lish a suspicion of fraud ought not to be considered, because contestant 
 in his notice had not charged fraud, but had merely asked that the 
 vote be thrown out on account of the irregularity in returning the 
 ballots; but if it were to be considered it was utterly insufficient. 
 The testimony of a witness as to the statement of the result made him 
 on the night of the election was confessedly based on a very vague 
 remembrance and the rest was all hearsay, and of a sort especially 
 illustrative of the danger of receiving hearsay testimony. Most of it 
 was fully contradicted. Mr. Thompson, who agreed to the conclusions 
 of the majority report, agreed with the minority in regard to this 
 precinct. 
 
 The general charges of fraud and illegal voting resolved themselves 
 in the testimony into charges that in the Second and Fifth w*irds of 
 Boston large numbers of votes were counted for contestee which were 
 not cast, or were cast by fraudulent voters or repeaters. The commit- 
 tee unanimously agreed to deduct 135 votes from contestee in these 
 two wards, the majority briefly stating that the charges of fraud were 
 sustained, and the minority arguing that there was no proof of fraud 
 and that the agreement to deduct these votes was merely a compro- 
 mise made necessary by the strangely incomplete condition of the 
 
316 DIGEST OF CONTESTED ELECTION OASSB. 
 
 testimony. Two illegal votes were also agreed upon in the town of 
 Winthrop. 
 
 The only remaining issue was that of bribery. The specification in 
 the notice of contest was — 
 
 That many votes were cast and counted at said election for you in said Fourth 
 Congressional district by persons who were induced to cast said votes_ by paying, 
 giving, and bestowing upon such voters gifts and rewards and by promising to pay, 
 give, and bestow to and upon such voters gifts and rewards. 
 
 This charge resolved itself in the evidence into the charge that a 
 large increase in the force of the Boston, Navy -Yard, just before the 
 election was for the purpose of corrupting voters by giving them 
 employment in return for their votes. It was proved that an effort 
 had been made to increase the force for some time before the elec- 
 tion, which was resisted by the commandant in charge on the ground 
 that his allowance of money was not sufficient to pay the wages of an 
 increased force. Shortly before the election he was instructed by 
 the Chief of the Bureau of Construction to increase his force, with 
 the assurance that a sufficient allowance of money would be made. 
 The force was largely increased, the appointments being mostly made 
 on the recommendations of various prominent Republicans, including 
 contestee. One of the letters of recommendation mentioned that the 
 man would be used at the polls. The person who made this recom- 
 mendation testified that he made it because he understood the appli- 
 cant was an influential Republican; he had lost his position and would 
 go out of the district before election day unless he could find work. 
 •ne of the men who had been discharged after the election testified 
 that the force was so large that there was not work for large numbers 
 of the men, and they spent their time loafing, playing checkers, hold- 
 ing meetings, etc. This was denied by the officers in chai'ge of the 
 departments where it was charged. The commandant of the yard 
 testified that all the men were fully employed, but that he thought all 
 the work necessary to be done could have been done by a smaller 
 force. He had resisted the increase on account of the shortness of 
 the funds allowed him, but had evidentlj^ been overruled by those 
 having more influence than himself. He was of the impression that 
 the only necessity for the increase was a political one. After the 
 election, owing to the shortness of funds, it had been necessary to 
 reduce the force below the point of efficiency. 
 
 There was evidence that it was a matter of common report, and dis- 
 cussed in the newspapers, that these men were employed for political 
 reasons, and for the purpose of inducing them to vote for contestee. 
 A naval officer had been seen on election daj^ with tickets in his 
 hands in a place where it was convenient to distribute them to the men 
 on their way to the polls. 
 
 From all the testimony in this case, the committee are forced irresistibly to the 
 conclusion that employment was given to those men as part consideration, and that 
 they entered into and accepted such employment with the full understanding that 
 they were to vote for the contestee, and, by the application of the rules of law here- 
 tofore laid down, the votes of all such must be disregarded. 
 
 The "rules hitherto laid down" were that if the giving of employ- 
 ment was for the purpose of influencing the vote of the elector, and 
 he accepted it with a direct or indirect understanding to that effect, he 
 was to be presumed to have voted in accordance with the implied 
 agreement, and unless the contrary was shown by evidence the pre- 
 
FOBTY-FOUKTH CONGRESS. 317 
 
 sumption became conclusive. The vote of an elector thus bribed was 
 held to be illegal. 
 
 It was shown that there had been an increase of at least 300 men in 
 the navy-yard before the election, and the committee presumed that 
 that number had voted illegally for contestee, there being no proof to 
 the contrary, and subtracted 300 from his total vote. 
 
 The minority held that the general charge of bribery was not spe- 
 cific enough to raise an issue or justify the committee in considering 
 the testimony. The contestant sought to have the votes of these 
 alleged bribed electors thrown out as illegal, and under the general 
 rule (McCrary, § 344) in regard to specifications of illegal votes he 
 should at least have specified the number of votes and when, where, 
 and for whom they were cast. He had not specified the number or 
 place further than to charge "many votes," and that they were cast 
 "in the said Congressional district." Although the contestee had not 
 objected to the sufficiency of the notice, and hence might be taken to 
 have waived the point, he had no right to waive away the rights of 
 the people to have the case decided in a legal manner, or the right of 
 the committee to have some notice of the issues in the case other than 
 what they might infer from an examination of the testimony. 
 
 But even if the evidence were to be considered, it was clearly insuf- 
 ficient. The statute of Massachusetts did not prescribe among the 
 penalties for bribery either that the voter should be disfranchised or 
 the briber disqualified from holding office. The minority thought the 
 true rule to be that where a voter was shown to have been bribed by 
 a candidate or any one for him, to have voted, and to have voted for 
 the candidate by whom he was bribed, his vote should be deducted. 
 In this case there was no pretense of proof that the alleged bribed 
 voters had voted for Mr. Frost, or had voted at all, and they certainly 
 could not be presumed to have done so without proof. And there was 
 no sufficient proof that any voters had been bribed. The increase in 
 the force was abundantly justified by the needs of the public service, 
 and the reduction afterwards was from lack of money, not from lack 
 of work to be done. All the trustworthy testimony was that the men 
 were fully employed, the little testimony to the contrary was discred- 
 ited. The only possible indication of bribery was, then, that these men 
 were recommended for employment by Republicans. But men were 
 employed who could not vote as well as those who could; no questions 
 were asked and no conditions, express or implied, laid down when the 
 employment was given, and no officer of the Government or any other 
 person was shown to have made any attempt to influence the vote of 
 any employee. True, under the maxim "to the victors belong the 
 spoils " (to the application of which the party of the contestant ought 
 to be the last to object), it was probable that most of the applicants 
 were Republicans, and were recommended and employed in preference 
 to others because they were Republicans. This was true of any depart- 
 ment of the Government. But pernicious as the principle must be 
 conceded to be, it had certainly never before been contended that if a 
 man asked the influence of a member or candidate for Congress of his 
 own party to aid him in obtaining Government employment he was 
 thereby disfranchised. There was no other proof than this that any 
 one had been bribed, and no proof at all that the persons in question 
 had voted for Mr. Frost, or had voted at all. 
 . The case was fully debated and the resolutions presented by the 
 
318 DIGEST OF CONTESTED ELECTION CASES. 
 
 minority in favor of contestee were rejected by a vote of 79 to 103. 
 The resolutions presented by the committee were then passed^ without 
 division and Mr. Frost was sworn in a few days later. [Smith, 594^ 
 
 649.] 
 
 (9) Platt vs. Goode. 
 
 Betiurns irregular and unsealed; illegal votes; hallots in wrong hoxes; 
 hribery. Majority report for contestant; minority report for contestee. 
 Contestee retained the seat. 
 
 Majority report by Mr. Brown; minority report by Mr. Blackburn. 
 
 Contestant had a majority on the face of all the returns, but the 
 State canvassers threw out the vote of Prince George County on the 
 ground that the returns were not attested by the county clerk, and 
 awarded the certificate to contestee. Contestant claimed the seat on 
 the grounds that the votes of this county should be counted; that 206 
 votes illegally rejected by the commissioners in Nansemond County 
 should be counted, and that the vote of York County should be thrown 
 out on account of fraud and violence. Contestee claimed that, even if 
 the return of Prince George County could be accepted, the votes of 
 two precincts of the county ought to be rejected, because the ballots 
 and poll books were not returned to the county clerk's office sealed, as 
 required by law; that certain precincts ought to be rejected on account 
 of illegal votes; and that the precincts in which the employees of the 
 Norfolk Navy -Yard chiefly voted ought to be thrown out for bribery. 
 A majority, composed of Messrs. Brown, Baker, Townsend, Wells, 
 Thompson, and House, reported in favor of contestant; a minorit}', 
 composed of Messrs. Blackburn, De Bolt, Poppleton, Beebe, and Har- 
 ris, reported in favor of contestee. Messrs. Thompson and House did 
 not agree to all the findings of the majority report, and Mr. Harris 
 reserved the right to nonconcur in some details of the minority report. 
 
 The principal issues on which the committee differed were the charge 
 of bribery in the navy-yard vote ai)d the propriety of excluding the 
 votes of Bland and Rives precincts, in Prince George County, because 
 the returns were not sealed. On the latter issue, as will appear, the 
 result of the case must turn. Taking up the other issues first, the 
 majority held that the rejection of the return of Prince George 
 County by the State canvassers was aibitrary :ind illegal. The law 
 required the return to be certified by the board of county commission- 
 ers, attested by the clerk under his seal, and deposited with the clerk. 
 A certified copy was to be forwarded to the seat of government. In 
 this case the return was not attested by the clerk, but was certified by 
 the county commissioners and the copy certified by the clerk. 
 The majority were of the opinion that it was a substantial com- 
 pliance with the law if the clerk certified to the return as the act 
 of the board, even if he did not also attach to it his formal attestation. 
 Or, if the return was informal, it was the duty of the secretary of the 
 Commonwealth, under the law, to send a special messenger for a for- 
 mal return. This he refused to do. The minority were of the opin- 
 ion that the return was properly rejected as informal, but, the House 
 having the power to go behind the returns, the vote of Bland and 
 Rives precincts (to be hereafter discussed) must at least be rejected, 
 which would have the same effect on the result as the rejection of the 
 whole county. 
 
 The committee unanimously agreed to count the 206 votes rejected 
 
FOKTY-FOURTH OONGEE88. 319 
 
 in Nansemond County, but the minority held that they were properly 
 rejected by the State canvassers, and could only be counted under the 
 broader power of the House. The law' of Virginia required the elec- 
 tion officers "to open a poll" to take the sense of the voters upon 
 constitutional amendments. In some parts of this county a separate 
 box was not used and the ballots rejected were Congressional ballots 
 having also printed on them votes on the constitutional amendments; 
 a few of them had the vote on the amendments on a separate paper, 
 folded inside of the Congressional ballot. In Norfolk, where two 
 boxes were used, 12 votes against the amendments were found in the 
 Congressional box and 12 votes for Mr. Piatt in the constitutional- 
 amendment box. The majority favored counting these votes; the 
 minority approved their rejection. 
 
 The committee were also unanimous in refusing to allow contestant's 
 claim that the vote of York County should be thrown out. The illegal 
 votes charged by contestee were the votes of persons registered for the 
 first time on election day, the last day provided by law for registra- 
 tion being ten days earlier. The majority deducted these votes, to the 
 number of 55, from the candidates proportionally. Contestee claimed 
 that the precincts where these votes were cast should be thrown out. 
 The minority stated the number of the votes as 90, and gave arguments 
 in favor of throwing out the precincts and of deducting all the votes 
 from Mr. Piatt, but did not decide between these courses and waived 
 the whole question in ascertaining the result of the case. 
 
 Upon the question of the Norfolk Navy-Yard vote, Messrs. Thomp- 
 son and House agreed with the minority, so that the finding of the 
 majority report on this point was approved by only a minority of the 
 committee. According to the majority report, it was shown that 
 assessments were made for campaign purposes on the employees of the 
 navy -yard. The committee regarded this practice as demoralizing and 
 believed that it ought to be made a criminal offense, but did not believe 
 that it ought to afi'ect the result of the election, unless it was shown 
 that the money thus raised was used corruptly, which was not claimed 
 in this case. It was further shown that a large number of men were 
 employed in the navy -yard during the fall months of 1874, but not 
 so large a number as during the preceding year, when there was no 
 election. Some Democrats were employed and many voted for Mr. 
 Goode without losing their places. Most of the men employed were 
 Republicans, as was to be expected. The committee believed that 
 bribery might be committed by the employment of men in a navy- 
 yard, but the mere fact of employment did not constitute bribery. 
 It must be shown that the employment was for the purpose of making 
 the men vote contrary to what they would otherwise do and that they 
 did so vote. There was no attempt at such proof, and the presump- 
 tion was that the men employed were Republicans alreadj' and hence 
 the employment did not change their votes or the result. 
 
 According to the minority report it was shown that an increase of 
 from 900 to 1,400 was made in the navy-ji^ard force previous to the 
 election; that the new employees were generally introduced by the 
 executive committee of the Republican party, and "that it was gen- 
 erally understood that they would be expected to vote the Republican 
 ticket. " The minoritj"^ held that — 
 
 The giving and the acceptance of such employment upon the terms and conditions 
 stated constitute bribery in law. The onus of proving that such persons did not 
 carry out, in good faith, the agreement made rests upon the contestant. 
 
320 DIGEST OF CONTESTED ELECTION CASES. 
 
 It was also shown that assessments were levied on the employees, 
 that tickets for contestant were ^iven them, and that they were closely 
 watched to see how they voted; in short, that the Government patron- 
 age was prostituted to secure the election of contestant. Votes secured 
 by such methods ought not to be counted; the record filrnished no 
 method of eliminating them, and the only course was to throw out the 
 entire vote of the three precincts in which most of these votes were 
 shown to have been cast. 
 
 If the votes of Bland and Rives precincts were to be counted, but 
 the findings of the minority followed on all other points, contestant 
 would still have a majority of 59 votes, which would not be overcoine 
 by deducting the illegal votes, even at the largest estimate of their 
 number, proportionally from the candidates. For this reason Messrs. 
 Thompson and House, agreeing with the majority as to these precincts, 
 agreed to the conclusion of uie majority report. The majority for 
 Mr. Goode found in the minority report, adopted by the House, was 
 based on the rejection of these two precincts. The law required the 
 judges to seal up the returns, ballots, and one of the poll books, and 
 forward them by one of their number to the county clerk. The tes- 
 timonj' showed that the ballots and poll books of these two precincts 
 were returned unsealed. The majority held that the law requiring 
 them to be sealed was directory, and in the absence of proof or sus- 
 picion of fraud the votes should not be rejected. (McCrary_, § 166, 
 and elsewhere.) In this case there was neither proof nor suspicion of 
 fraud, and the fact that the elections had been held by and the returns 
 and ballots been in the custody of Democratic officers alone, raised a 
 presumption that if fraud had been committed it would not have been 
 in favor of contestant. 
 
 The minority held that the law was mandatory, and that it was not 
 necessary that there should be positive proof that the ballots had been 
 tampered with. 
 
 It is sufficient to show that opportunity for such tampering has been afforded. The 
 burden of proving that this has not been done devolves upon the party insisting upon 
 the count. 
 
 Mr. Piatt received a majority of 408 votes in these precincts, and 
 rejecting them a majority of 349 votes for Mr. Goode is shown. 
 
 The case was debated several days, and the resolutions presented by 
 the majority were rejected b}^ a vote of 106 to 98. The resolutions 
 presented by the minority were then adopted by a vote of 107 to 95, 
 and Mr. Goode was accordingly confirmed in his seat. 
 
 [Smith, 650-683.] 
 
 (10) BuTTz vs. Mackey. 
 
 Fraud., repeating, iriber'y, and intimidatio7i. Ccmimittee unani- 
 mously reported that neither candidate was elected. Seat declared 
 vaxio/nt. 
 
 Report by Mr. Thompson. 
 
 Contestant had a majority of 2,637 votes in the district. In the city 
 of Charleston, in which one-third of the votes in the district were 
 cast, his majority was 5,548. The only issues in the case considered 
 by the committee were the charges against the validity of the election 
 in the whole city of Charleston, on account of fraud, repeating, brib- 
 ery, and intimidation committed by friends of contestee and in his 
 
FORTY -FOURTH CONGRESS. 321 
 
 interest. All the testimony was taken by contestant, contestee having 
 made no effort to procure any. Contestee objected to all the testimony 
 taken by contestant after the forty days allowed him by the law of 
 1873. The parties seemed to have proceeded in ignorance of this law, 
 and the testimony was taken without objection as under the law for- 
 merly in force, until some time after the expiration of the forty days, 
 when contestee for the first time objected. The committee received 
 all the testimony taken previous to contestee's first objection and 
 excluded the rest. 
 
 The testimony showed in every precinct in the city of Charleston 
 such fraud, repeating, bribery, and intimidation committed by friends 
 of contestee, apparently with the aid and collusion of the election 
 officers, that the committee unanimously agreed that the vote of the 
 whole city must be thrown out. The remainder of the district gave 
 a large majority for contestant, but the committee concluded that, 
 having thrown out the vote of one-third of the district, it was impos- 
 sible to tell who really received the majority of all the legal votes cast, 
 and that it would be more just to order a new election. 
 
 Attention was called to the looseness of the South Carolina law, 
 which required no registration and permitted voters to vote in any 
 precinct in the county. With a proper registration and election law 
 many of the frauds shown in this case could not have been committed. 
 
 The resolutions presented were passed without division, and the 
 seat was accordingly declared vacant. 
 
 [Smith, 683-689.] 
 
 H. Doc. 510 ^21 
 
322 DIGEST OF CONTESTED ELECTION CASES. 
 
 FORTY-FIFTH CONGRESS (D.), 1877-1879. 
 
 Cmmnittee on Elections. 
 
 Mr. Haeeis, Virginia, Mr. Ellis, Louisiana, 
 
 Speingee, Illinois, Wait, Connecticut, 
 
 Candlee, Georgia, Thoenbuegh, Tennessee, 
 
 TuENEY, Pennsylvania, Peice, Iowa, 
 
 Cobb, Alabama, Hiscock, New York, 
 
 Mr. Williams, Indiana. 
 
 Cases. 
 
 (1) Peter D. Wigginton m. Romualdo Pacheco, California. 
 ^2) Thomas M. Patterson m. James B. Belford, Colorado. 
 
 (3) Jesse J. Finley vs. Horatio Bisbee, jr., Florida. _ 
 
 (4) Joseph H. Acklen vs. Chester B. Darrall, Louisiana. 
 h>) Benjamin Dean vs. Walbridge A. Field Massachusetts. 
 
 (6) John S. Richardson vs. Joseph H. Rainey, South Carolina. 
 
 (7) R. Graham Frost vs. Lyne S. Metcalfe, Missouri. 
 
 (1) Wigginton vs. Pacheco. 
 
 Illegal alteration of returns; illegal votes. Majority report fm- con- 
 testant, minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Harris; minority report by Mr. Wait. 
 
 Partially dissenting report by Mr. Springer, Mr. Candler, and 
 Mr. Ellis. 
 
 According to the returns as certified to the secretary of state, con- 
 testee had a majority of one vote. Contestant claimed that according 
 to the returns as ascertained by the county canvassers he had received 
 a majority of one vote, but that the return from one county and the 
 records of the board of supervisors had been illegally altered by the 
 clerk of the board by subtracting two votes from contestant's vote. 
 
 This question had been involved in proceedings between the parties 
 before the various courts of California, and most of the evidence pre- 
 sented consisted of transcripts from the proceedings of these courts. 
 Part of it consisted of ex parte affidavits, and could not be consid- 
 ered. But one of the affidavits, that of the clerk who made the change, 
 had been included by contestee in a sworn petition for a writ of man- 
 damus on the secretarj' of state, and it was claimed that contestee was 
 thereby bound by this affidavit. The committee did not decide this 
 question. According to this affidavit, the total of the votes for con- 
 testant in this county, as taken down by the clerk of the board of 
 supervisors in his notes of the meeting of the board, was 988. After 
 the adjournment of the board the attention of the clerk was called to 
 the fact that according to the notes taken by two of the members of 
 the board, the vote 'was 986. A comparison of the clerk's notes with 
 the notes of these members showed that he had set down the vote of one 
 precinct as 29 and they as 27. An examination of the tally sheet and 
 return of this precinct showed that the true vote was 27, and the clerk 
 
FORTY-FOURTH CONGRESS. 323 
 
 accordingly altered his records so as to show a total vote of 986 for 
 contestant. The certificate of the vote was made out by the clerk and 
 signed by him and the president of the board, showing the vote as 986, 
 and forwarded to the secretary of state. 
 
 The committee held that the certificate thus made out and signed 
 by the president and clerk of the board, and the official record kept by 
 the clerk, were the official evidence of , the vote, and must stand until 
 shown not to represent the true vote cast. The evidence presented by 
 contestant, even if admissible, did not show this, and the return must 
 therefore stand as made. 
 
 Mr. Springer, in a dissenting report, held that under the law of Cali- 
 fornia the vote as found by the board must stand until proved to be 
 incorrect on a contest. The affidavit forwarded by the clerk of the 
 board to the secretary of state amounted to a second certificate of the 
 vote; it was legal evidence, on the principle given above as not decided 
 by the committee, and, there being two certificates, that should stand 
 which represented the vote as found by the board. 
 
 In addition to the above question, contestant asked that two polls be 
 thrown out for irregularities, and that certain ballots be rejected as 
 marked, and both parties charged illegal votes. 
 
 At the two polls complained of the law had been violated by exhibit- 
 ing open tickets and otherwise doing prohibited acts within 100 f^et 
 of the polls. The committee held that while the violators of the law 
 might be punished, the poll ought not to be rejected. The ballots 
 asked to be rejected as marked were ballots on which the judges had 
 written the word ' ' challenged " and the name of the voter. The statute 
 provided that ballots having on the outside "any impression, device, 
 color, or thing" should be rejected, and the committee held that under 
 the letter of this statute these ballots must be rejected. But the spirit 
 of the law was evidently otherwise; "the law was made to protect the 
 voter, not to disfranchise him," and the committee counted the votes. 
 If the voters had placed the marks on the ballots they should have been 
 rejected. One of the individual illegal votes charged by contestee also 
 involved the question of marked ballots. One of the voters had written 
 his own name at the bottom of the ballot. One section of the statute 
 provided that — 
 
 When a ballot found in any ballot box bears upon it any impreasion, device, color, 
 or thing, or is folded in a manner intended to designate or impart knowledge of the 
 person who voted such ballot, it must, with all its contents, be rejected. 
 
 The committee held that under this statute an invalidating mark on 
 the face of the ballot must be one intended to impart knowledge of the 
 person who voted the ballot, and that the voter's name at the bottom 
 of the ballot was not such a mark. The minority held that any mark 
 was included in the terms of the statutes, and also that the voter's 
 name in his own handwriting was calculated to impart knowledge of his 
 identity. 
 
 The committee found that 12 votes were illegally cast for contestee by 
 nonresidents or unnaturalized or unregistered persons. The minority 
 found the proof sufficient as to only 8 of these. The cpmmittee also 
 found 6 votes illegally cast for contestant by similarly disqualified 
 persons. The minority found 11. Some of the legal questions involved 
 in these votes are referred to elsewhere, but they need not be outlined 
 here. According to the findings of the majority, contestant had a 
 majority of 4 votes; according to those of the minority, contestee had 
 
324 • DI&EST OF CONTESTBB ELECTION CASES. 
 
 a majority of H. Mr. Spi'inger, Mr. Candler, and Mr. Ellis concurred 
 in the result of the majority report, but differed as to some details. 
 
 After some debate the House adopted the resolutions presented by 
 the majority by a vote of 136 to 125, and Mr. Wigginton was sworn in. 
 
 [1 Ells., 5-51.] 
 
 (2) Patterson vs. Belfoed. 
 
 Legal time of election. Majority report for contestant ; minority 
 report for contestee ; report T)y Mr. Cox for a new election. Contestant 
 seated. 
 
 Majority report by Mr. Harris; minority report by Mr. Wait; fur- 
 ther dissenting report by Mr. Cox. 
 
 At the time of the admission of Colorado into the Union it was 
 entitled to representation for the unexpii-ed term of the Forty -fourth 
 Congress. At the general election held October 3, 1876, Mr. Belford 
 was elected to this unexpired term. At the same election votes were 
 cast for Representative in the Forty -fifth Congress, and Mr. Belford 
 received a majority of the votes and was given a certificate of election. 
 Another election was held for Representative in Congress on Novem- 
 ber 7, 1876, at which Mr. Patterson received nearly all the votes cast. 
 A very full vote was cast at the October election and a very light one 
 in November. The parties claiming the seat under different elections, 
 neither party was sworn in, and the matter was referred to the Com- 
 mittee on Elections for determination. Most of the facts in the case 
 were conceded. A proclamation was issued from the office of the sec- 
 retary of state on August 31, giving notice of a genei'al election on 
 October 3, including an election for Representative for the unexpired 
 term of the Forty-fourth Congress. On September 14 another proc- 
 lamation was made giving notice of an election on November 7 for 
 Representative in the Forty -fifth Congress. On October 3 the general 
 election was held. On October 16 the secretary of state withdrew his 
 notice of the November election. The November election was held, 
 but the friends of Mr. Belford did not take part in it, and only 3,580 
 votes were cast. The majority of the committee held that the election 
 in November was the legal election. The law of the United States pro- 
 vided (Revised Statutes, sec. 25) that all elections for Representatives 
 in Congress should be held on that day, and this law must apply to the 
 present case unless it could be shown to be excepted by some other pro- 
 vision of the law. The act of March 3, 1875, excepting those States 
 whose constitutions would have to be amended to enable them to com- 
 ply with the law was conceded not to apply to Colorado; but it was 
 claimed that the enabling act under which Colorado became a State did 
 except it. The sixth section of the enabling act was as follows: 
 
 That until the next general census said State shall be entitled to one Eepresenta- 
 tive in the House of Representatives of the United States, which Representative, 
 together with the governor and State and other oflBlcers provided for in said constitu- 
 tion, shall be elected on a day subsequent to the adoption of the constitution, and to 
 be fixed by said constitutional convention; and until such State officers are elected 
 and qualified under the provisions of the constitution the Territorial officers shall 
 continue to discharge the duties of their respective offices. 
 
 The committee held that the election thus provided to be fixed by the 
 constitutional convention was the first election to be held, and not all 
 elections "prior to the next general census." The provision that the 
 Territorial officers should hold until ''such State officers are elected" 
 
FORTY-FIFTH CONGBESS. 325 
 
 showed that the State officers referred to were the ones first elected; 
 and the "one Representative" referred to could not constitutionally be 
 a Representative who should continue until the next census. Hence the 
 constitutional convention had power to provide for but one election. 
 It had only attempted to do this. The provision was: 
 
 One Representative in the Congress of the United States shall be elected from the 
 State at large at the first election under the constitution, and thereafter at such 
 times and places and in such manner as may be prescribed by law. 
 
 The legislature had not "prescribed by law" any time for holding 
 subsequent elections, but the Territorial election laws were continued 
 in operation by the constitution. These laws provided the places, 
 manner, and machinery of elections, which could be and were used at 
 the November election, and the Federal statutes, applying to Colorado 
 as to other States, provided the time. Mr. Patterson being elected at 
 the election held at the legal time was entitled to the seat. 
 
 The committee held that the time of election was the onlj' question^ 
 involved in the case. The laws fixing the time of elections were man- 
 datory, and could not be abrogated even by the consent of all the voters. 
 But the fact that the October election was without notice, and that the 
 notice of the November election was withdrawn, would not vitiate 
 either election. Neither would the election in November be vitiated 
 by the fact that the votes were not canvassed by the State officers, nor 
 by the fact that a light vote was cast. The supporters of Mr. Belford 
 voluntarily remained away from the November election and must 
 abide by the result. 
 
 The minority held that Congress in the enabling act had excepted 
 Colorado from the provisions of the Federal statute fixing the time of 
 elections, and had empowered the constitutional convention to fix the~ 
 time, and that this power had been exercised by the convention. 
 The enabling act, in referring to State officers and Representatives in 
 Congress, clearly referred to all who should be elected prior to the 
 next census. The election for Representative was required to be on 
 the same day as that for State officers, and hence if it could not be 
 legally held in October it could not be held at all. The election for 
 the unexpired term of the Forty -fourth Congress was to fill a vacancy, 
 and under the constitution should have been held on a writ from the 
 executive. The first regular election for Congress was that for the 
 Forty-fifth Congress, and that must have been the one provided for 
 by the convention. The validity of the October election was further 
 sustained by the fact that the people, by casting a full vote at it, had 
 construed it to be the legal one. 
 
 Mr. Cox filed a report contending that no valid election had been held. 
 He held that the enabling act had excepted Colorado from the provisions 
 of the Federal law; that the convention had legally fixed October 3 as 
 the date for holding an election to fill the unexpired term of the Forty- 
 fourth Congress, and had legally provided that subsequent elections 
 should be held at the times fixed by law. The legislature had fixed no 
 time, and hence there was no legal time at which an election for the 
 Forty -fifth Congress could be held. 
 
 Neither could it be claimed that either of the elections was really an 
 election de facto. A full vote had been cast at the October election, 
 but it was without notice, and neither party regarded it at the time as 
 legal, but rather as a test of strength. The vote at the November 
 election was too small to make it an expression of the popular will. 
 
326 DIGEST OF CONTESTED ELEOTIOTST CASES. 
 
 After considerable debate the House adopted the resolutions pi'e- 
 sented liy the majority by a vote of 116 to 110, and Mr. Patterson was 
 sworn in. 
 
 [lElls., 52-73.] 
 
 (3) FiNLET VS. BiSBEE. 
 
 Fraud, illegal votes, and irregularities. Majority report for con- 
 testant; minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Cobb; minority report bj' Mr. Price. 
 
 According to the aggregate of all the precinct returns contestant 
 had a majority of 5 votes; but the State canvassers twice canvassed 
 the vote, the second time under mandate of the supreme court, and 
 each time excluded certain returns and gave the majority to contestee, 
 who received the certificate and held the seat. In the issues joined in 
 the contest, precincts and votes were attacked in nearly all of the 
 17 counties of the district, but the result of the case turned on a single 
 precinct and on two classes of votes in other precincts. 
 
 Both parties charged that the count or return of the vote of Archer 
 precinct No. 2, Alachua County, was false and fraudulent, each alleg- 
 ing that the fraud was committed against himself. Contestant charged 
 that the fraud consisted in forging false returns and in adding about 
 219 votes to contestee's vote; contestee charged that it consisted in 
 stuffing the ballot box with tickets for contestant. Fraud of some 
 sort being conceded, it was agreed that the return should be rejected, 
 and the difference between the parties, and between the majority and 
 minority of the committee, was in regard to what votes, if any, should 
 be counted upon evidence outside the return. A large amount of tes- 
 timony of a very conflicting character was taken in regard to this 
 return. The election itself appears to have been regularly and quietly 
 conducted. In the evening the votes were counted and a large dis- 
 crepancy was found between the number of ballots in the box and of 
 names on the poll list. Most of the witnesses testified that at the close 
 of the polls one of the judges announced the vote for governor. Sev- 
 eral witnesses testified that the vote thus announced was 136 for the 
 Democratic and 180 for the Republican candidate, and that the vote 
 for other officers varied but slightly. The only testimony on this 
 basis in regard to the Congressional vote showed 141 for contestant 
 and 180 for contestee, and contestant claimed that if any votes at all 
 were to be counted they should be counted as shown by this testimony. 
 But the testimony of part of the officers of election was to the effect 
 that the vote was: Bisbee, 398; Finley, 137, and that it was thus 
 announced. Most of the witnesses testifying to this were impeached. 
 The box was left over night, imperfectly sealed, in the custody of a 
 Republican judge, whose character was assailed. He refused to allow 
 it to be more safely sealed or to allow precautions to be taken to guard 
 it. At toon it had been in the custody of one Democratic and one 
 Republican outsider. The custodian of the box and a friend took an 
 extra train to the county seat at 3 o'clock in the morning, but did not 
 deliver the box and returns until noon. The returns had been signed 
 in blank on the evening of the election, and it did not satisfactorily 
 appear when or by whom they were filled out. They showed for con- 
 testee, 399; for contestant, 141. Contestant claimed that this was a 
 much larger vote than was actually cast. It was larger than the num- 
 
JH-OKTY-flFTH CONGRESS. 827 
 
 ber of ballots in the box. The poll list had been kept, with other 
 
 Sapers, in an iron safe in the county clerk's office, but had in some way 
 isappeared. There was testimony that it had contained only 318 
 names. A witness who had stood at the polls all day and claimed to 
 have taken down the name of every voter presented a copy of his list, 
 showing 305 persons voted. But there was evidence showing that a 
 number of persons voted who were not on the list, thus showing its 
 incompleteness. Contestee called 308 witnesses who swore they voted 
 the Republican ticket, on which his name was proved to have been 
 printed. 
 
 On this state of the evidence the committee found that it was impos- 
 sible to ascertain the true number of votes cast or to count any votes 
 for either candidate. Except the testimony of the individual voters 
 the testimony was too conflicting for certainty, and much of it was 
 impeached. Most of the individual voters called could not read and 
 might easily have been deceived in regard to the ticket they voted. 
 Such ignorant persons might also have been easily induced to testify 
 falsely. Moreover, the other testimony, if not sufficient to show the 
 number of votes, did show that a considerable number of votes was 
 received by contestant, and it would be very unfair to count the votes 
 received by one candidate when there was no way to count those 
 received by the other. This was especially true in this case, as the 
 election and returns had been in the control of partisans of contestee, 
 and whatever fraud had been committed was presumably in his interest. 
 But to count the vote for him, according to the testimony of the indi- 
 vidual voters, and count no vote for contestant would give to contestee, 
 already the beneficiary of the fraud, a majority even larger than that 
 given him by the fraudulent returns. 
 
 The minority agreed that the returns should be rejected, and that 
 the general testimony in regard to the vote was too conflicting to be 
 trustworthy, but held that the votes proved by the testimony of the 
 individual voters to have been cast for contestee should be counted 
 for him. Only 54 of these witnesses could read, but all testified 
 that they got their tickets from well-known Republicans and voted 
 them unchanged. The persons from whom they got their tickets were 
 called, and all testified that they gave out none but straight Republican 
 tickets containing the name of contestee. It was shown that there were 
 organized Republican clubs with a membership more than large enough 
 to account for the vote thus shown for contestee. That the fraud had 
 been committed in the interest of contestant was indicated by the fact 
 that at previous elections the Democratic vote had been very small, 
 while at this election there were 141 Democratit; ballots found in the 
 box, though very few Democrats were known to have voted. The 
 increase in the Republican vote was about 50 per cent over that of two 
 years before, and was accounted for by the opening up of new lands 
 and new avenues of employment for laboring people. The increase in 
 the Democratic vote was about 900 per cent, and was not explained. 
 If contestant had desired to have his vote counted, he should have 
 proved it in the same manner as contestee. But no hardship was done 
 him by not counting the votes not proved, as contestee had proved as 
 cast for himself nearly the whole number of votes claimed by con- 
 testant to have been cast for both candidates, and the few remaining 
 votes could not affect the result. 
 
 Large numbei's of illegal votes were charged by contestee, most of 
 
328 DIGEST OF CONTESTED ELECTION CASES. 
 
 which were included in two classes— nonregistered and foreign-bom 
 voters. Under the constitution and laws of Florida foreign-born pei- 
 sons might vote under the same conditions as native citizens on pre- 
 senting to the election officers certified copies of their naturalization 
 papers or declarations of intention. The election officers were forbid- 
 den to receive their votes without such presentation. A large number 
 of votes of foreign-born persons had been received without the presen- 
 tation of the requisite certificates, and contestee asked that they be 
 excluded. The evidence showed that all but 7 of them were duly nat- 
 uralized and could have produced the required certificates if they had 
 been asked for. The committee held that the qualification required 
 by the constitution was the fact of naturalization, and that the presen- 
 tation of certificates was merely a directory requirement as to mode of 
 proof. The votes having been received were presumed to be legal, 
 and the failure to furnish the required proof could at most only shift 
 the burden on the party claiming their votes to show that they were 
 in fact qualified. This had been done as to all but 7, and with these 
 exceptions the votes were counted. 
 
 Under the constitution no person could vote who had not been regis- 
 tered, but if a voter had been registered and his name had been struck 
 from the registry he could vote on taking the oath required of chal- 
 lenged voters, and also an oath that his name had been wrongfully 
 struck from the list. Contestee presented certified copies of the poll 
 lists and registry lists, showing a large number of voters marked on 
 the poll lists as voting who were not on the registry lists. But the 
 committee held that the votes having been received the presumption 
 was that the voters had been struck from the list and had taken the 
 required oaths. The certified copies of the registry lists were accom- 
 panied with certified lists of the names that had been struck off, and 
 the names of many of the voters attacked were also not on these lists; 
 but the committee held that the county clerks could only certify to the 
 official list, which was a matter of record, and not to the names struck 
 off. This should have been proved by testimony and not by certificate. 
 Certain testimony based on comparisons of lists made by witnesses was 
 open to the same objection. It not being shown by competent testimony 
 that these voters were not qualified, their votes must stand. 
 
 The minority held that both these classes of votes should be rejected. 
 The constitution was mandatory in its terms, and prohibited the recep- 
 tion of the votes of foreign-born persons except under certain condi- 
 tions. Many cases were cited to show that, these conditions not having 
 been complied with at the time, it was not sufficient to show that they 
 could have been complied vdth. The constitution was also mandatory 
 in prohibiting the reception of the votes of nonregistered persons. 
 The manner in which the lists were kept made the names struck off, 
 and the fact of their being struck off, as much a part of the record as 
 the names retained, and the clerks' certificates were evidence of both. 
 By this evidence the voters were shown not to have been registered, 
 and their votes should be rejected. If these two classes of votes were 
 rejected contestee would be elected, regardless of the decision in regard 
 to Archer precinct No. 2. Most of the foreign-born voters attacked 
 were shown by their own testimony to have voted for contestant. 
 There was no evidence showing which candidate had received the votes 
 of most of the unregistered voters, and the minority deducted them 
 from the candidates ^?-o rata. The majority did not deduct them, but 
 
FORTY-FIFTH CONGRESS. 829 
 
 stated that if they had been shown to be illegal it would be a fair 
 course for a legislative body, having power to order a new election, to 
 do so, rather than to adopt the rule followed by the courts of deducting 
 them pro rata from the candidates. 
 
 According to the findings of the majority contestant was elected by 
 a majority of 252; according to those of the minority contestee was 
 elected by a majority of 354. 
 
 After considerable debate the House adopted the resolutions pre- 
 sented by the majority, by a vote of 131 to 122, and Mr. Finley was 
 sworn in. 
 
 [1. Ells., 74-124.] 
 
 (4) ACKLEN VS. DaERALL. 
 
 JJnautlim^ized removal of poll. Recount ofhallots. Majority report 
 for contestant; minority report^ for contestee. Contestant seated. 
 
 Majority report by Mr. Harris; minority reports by Mr. Price and 
 Mr. Thornburg. 
 
 The returns of this district were twice canvassed by different return- 
 ing boards. The first canvass, made under the "Kellogg government," 
 gave contestee a majority of 2,093; the second, under the "NichoUs 
 government," gave him a majority of 1,094 votes. He held certificates 
 of election from both governors. Contestant charged that the first 
 canvass, made by the "Wells-Anderson" returning board, was illegal 
 and fraudulent, and that the canvass made by the second board should 
 be corrected by excluding the returns of one precinct in La Fourche 
 Parish on account of fraud, by throwing out the entire returns of St. 
 Martin's Parish as forged, and by counting the vote of Iberia Parish 
 as shown by a recount. He presented a certificate signed by the lieu- 
 tenant-governor of the State, certifying to his election if the entire 
 returns of St. Martin's and Iberia paiishes were excluded. Both the 
 majority and minority of the committee disregarded the canvass made 
 by the "Wells-Anderson board;" the majority on account of "its 
 notoriously fraudulent character," and the minority because its can- 
 vass did not, as the other canvass did, include all the precinct returns. 
 The charge that the returns of St. Martin's Parish were forged was 
 not established by evidence, and in addition, there was an agreement 
 between the parties as to the vote of the parish. The issues were 
 accordingly narrowed to the question of the fraudulent removal of the 
 voting place of poll 17, La Fourche Parish, and the recount in Iberia 
 Parish. It was shown that the voting place in poll 17 had been con- 
 veniently located on the public road, but that the day before the 
 election, without general notice, it had been removed to the "negro 
 quarters," for the pui*pose, as was alleged, of depriving contestant of 
 votes. Eighty-six votes, all for contestee, were cast. The majority, 
 and those signing the second ininority report, rejected the poll. In 
 the first minority report it was counted according to some finding of 
 the Louisiana courts, not very clearly stated. 
 
 The decisive issue in the case was the recount in Iberia Parish. 
 There were eleven polls in this parish, all of which were recounted. 
 In six of them a change of only 7 votes was made by the recount; in 
 the other five there was a change of over 1,000 votes in favor of con- 
 testant, sufficient to give him a majority in the district. The majority 
 sustained the validity of this recount; the minority denied it. The 
 
330 DIGEST OF CONTESTED ELECTION CASES. 
 
 majority held that the law always looks with suspicion on recounts, 
 and that they can not be received to change the results of an election 
 unless it "be shown absolutely that the ballot boxes had been safely 
 kept; that the ballots were undoubtedly the identical ballots cast at 
 the election; and when these facts are established beyond all reasona- 
 ble doubt, then full force and effect are given to the developments of 
 ■ the recount." Such facts were established in this case with the possi- 
 ble exception of two boxes. The boxes had all been sealed up by the 
 election officers and deposited in the office of the clerk of the court. 
 The clerk testified that they had not been and could not have been 
 tampered with, and in every case but two the seals were intact and 
 identified by the precinct election officers. One seal was broken, but 
 the clerk testified that it had probably been broken by his careless- 
 ness in moving the boxes. Another box had been sealed only with 
 paper and mucilage, without the signatures of the election officers, 
 and hence could not be identified. The committee out of abundant 
 caution allowed the original count of these two boxes to stand. 
 
 It was objected bj^ contestee that this recount took place in March, 
 four months after the election and two months later than the ballots 
 were required by the law to be preserved. The law required them to 
 be kept until after the next term of court, and the clerk of the court 
 certified that court had been held in January. But at that time the 
 government of the State was still unsettled. There were two claim- 
 ants for the office of judge. The one who was alleged to have held 
 court was afterwards adjudged to be not elected, and the court was at 
 most merely formal, no business being transacted. Considering the 
 unsettled condition of the State government during most of the time 
 and the date on which contestee's answer was served the recount 
 could not have been held much earlier. 
 
 The very large change made by the recount was accounted for by 
 the fact that contestant's name was printed on a large number of the 
 Republican tickets, and the officers of election, not being aware of this 
 fact, did not scrutinize the ballots carefully, and in most cases counted 
 for contestee all ballots appearing to be straight Republican tickets. 
 The Republican tickets were printed on paper with a heavily glazed 
 and nearly black back, so as to be easily distinguishable. The chair- 
 man of the Republican committee in this parish was hostile to the elec- 
 tion of contestee, and had large numbers of tickets printed identical 
 with the regular Republican tickets, except that on some of them the 
 name of contestant was printed instead of that of contestee, and on 
 others there was no name for Congress. In sending out tickets to the 
 various polls he mixed these three sorts, and the committee found that 
 according to the evidence manj^ of the two sorts not containing- the 
 name of contestee must have been voted. The judges of election in a 
 number of precincts testified that they counted for contestee all ballots 
 which were apparently straight Republican tickets. In one precinct 
 the count had been completed within one hour, which would have been 
 impossible if all the names on the tickets had been scrutinized. Con- 
 testee was counted as receiving sul)stantialiy his full partj'^ strength in 
 most of the precincts, though it was impossible for him to have received 
 it with such tickets in circulation. The recount showed in the five 
 boxes where the change was made large numbers of such ballots, and 
 the change consisted in counting them for contestant or blank for Con- 
 gress when they were so printed. 
 
FORTY-FIFTH 00KGKES8. 331 
 
 Accepting the recount in all but two of the precincts (where, as 
 above stated, the seals were imperfect) and rejecting the 86 votes cast 
 for contestee in poll 17, La Fourche Parish, contestant was shown to 
 have a majority of 108 votes, and the committee accordingly recom- 
 mended resolutions declaring him elected. 
 
 There were two minority reports, both in favor of contestee. The 
 first, presented by Mr. Price, denied the validity of the recount in the 
 six precincts where the chief change was made, and counted the votes 
 according to the original count in the five uncontested polls, and the 
 two polls conceded by the majority of the committee. This would 
 give contestee a majority of 165 in the uncontested part of the district. 
 If the other four polls were counted according to the original count 
 this majority would be increased. They ought either to be so counted 
 or not to be counted at all. 
 
 The second minority report, presented by Mr. Thornburgh, and signed 
 also by Mr. Wait and Mr. Hiscock, also denied the validity of the 
 recount, but held that doubt was cast upon the original count in the 
 six polls where the "bogus" Republican tickets were sent. Eeject- 
 ing these six polls contestee would be elected by 184 majority. Even 
 if the evidence were taken as sufiicient to show that the recount repre- 
 sented the votes actually cast, it ought not to be permitted to give the 
 seat to contestee, as the additional votes received by him were the 
 result of a fraud upon the voters, to which the House ought not to 
 give effect. But the evidence of the identity of the ballots recounted 
 was not sufficient. 
 
 In the six precincts where a change of only 7 votes was made on the 
 recount it was conclusively shown tnat the seals on the boxes had not 
 been tampered with, but it was not conclusively shown as to anj' of 
 the five precincts where the change of over 1,000 votes wag made. In 
 one the seal had been broken, and in another it could not be identified. 
 The majority conceded that these two boxes might have been tam- 
 pered with, and counted them according to the originail count. If 
 this concession was made as to these boxes it must also be made as to 
 the others. The seals over the ballot holes in the others were intact 
 and identified, but there was no seal over the keyholes. The keys 
 were in the possession of the clerk, the boxes were exposed in a public 
 part of the office, and might have been tampered with at any time. 
 The officers of election in some of the precincts testified to extreme 
 care in counting the ballots, and in one precinct, at least, returned 
 contestee much less than his party vote, thus showing that they must 
 have discovered the Republican tickets on which his name did not 
 appear. The election boards were composed of members of both par- 
 ties, and it was inconceivable that they could have overlooked mistakes 
 amounting, in some cases, to more than half the votes. Part of the 
 boxes had not been returned promptly to the clerk's office, which ones 
 it did not appear. One of the experts who conducted the recount 
 testified that in at least one of the boxes the Republican tickets on 
 which contestee's name did not appear did not have the appearance of 
 having been handled and folded by the voter, and that the difference 
 was so noticeable that he could tell by the back of the ticket, before 
 they were examined, whether contestee's name would be found on 
 them or not. The recount had been had four months after the elec- 
 tion and two months after the ballots were required to be preserved. 
 
332 DIGEST OF CONTESTED ELECTION CASES. 
 
 Such a recount had never been received to change the result of an 
 election, and ought not to be received in this case. 
 
 After some debate the House rejected the resolution presented 
 by the minority by a vote of 115 to 139. The resolutions presented by 
 the majority were then adopted without division, and Mr. Acklen was 
 sworn in. 
 
 [1 Ells., 124-189.] 
 
 (5) Dean m. Field. 
 
 Recount hy hoard of aldermen. Majority report for contestant; 
 minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Springer; minority report by Mr. Candler. 
 
 According to the aggregate of the returns made by the precinct offi- 
 cers of election, and by the United States supervisors, contestant had 
 a majority of either 5 or 30 votes, according as 25 votes cast for con- 
 testee ' 'for Congress, Fourth district," were or were not counted for him. 
 According to a recount made by a committee of the board of aldermen 
 of Boston contestee had a majority of 5 votes, and this latter count 
 being the one certified to the governor, contestee had the certificate of 
 election. 
 
 The parties were both candidates for Congress in the Third district 
 of Massachusetts, which was wholly comprised within the city of Bos- 
 ton. In the Eighteenth Ward of Boston, one of the wards in the 
 Third district, 25 ballots were cast bearing the words: 
 
 For Representative to Congress, Fourth district, Walbridge A. Field, of Boston. 
 
 These votes were separately returned by the precinct officers and 
 United States supervisors of the Eighteenth Wai'd. The committee 
 of the board of aldermen which made the recount submitted the ques- 
 tion in regard to them to the full board, which decided that they should 
 be counted for contestee. If the}- were not counted for contestee it 
 would be decisive of the case in favor of contestant. The committee 
 unanimously held that the words "Fourth district" were not a part of 
 the legal designation of the office, and that as the intention of the 
 voters was plain, and they would have had no right to vote for Mr. 
 Field or any one else for Kepresentative from any other than the 
 Third district, the votes should be counted for contestee. 
 
 The majority of the committee held that the original count made by 
 the precinct officers and verified by the count made by the United 
 States supervisors should stand in preference to the recount. The 
 statute of Massachusetts provided that — 
 
 If within three days next following the day of any election ten or more qualified 
 voters of any ward shall file with the city clerk a statement in writing that they have 
 reasons to believe that the returns of the ward officers are erroneous, specifying 
 wherein they deem them in error said city clerk shall forthwith transmit sijch state- 
 ment to the board of aldermen or to the committee thereof appointed to examine 
 the returns of said election. The board of aldermen, or their committee, shall there- 
 upon, and within five days, Sunday excepted, next following the day of election, 
 open the envelope and examine the ballots thrown in said ward, and determine the 
 questions raised; they shall then again seal the envelope, either with the seal of tiie 
 city or a seal provided for the purpose, and shall endorse upon said envelope a certifi- 
 cate that the same has been opened and again sealed by them in conformity to law 
 and the envelope, sealed as aforesaid, shall be returned to the city clerk. Said city 
 clerk, upon the certificate of the board of aldermen or their committee, shall alter 
 and amend such ward returns as have been proved to be erroneous and such amended 
 returns shall stand as the true returns of the ward. 
 
FOETY-FIFTH CONGRESS. 333 
 
 The committee held that this law could not have been intended to 
 apply to the elections of Representatives in Congress. It could apply- 
 to no other district than this one, as this was the only one entirely 
 included within a city. And to apply to any district it must come in 
 conflict with the Federal statute providing tJnited States supervisors. 
 These supervisors were required to be present wherever the votes 
 were counted, until such count was wholly completed and all returns 
 made, and to personally scrutinize the ballots and count. It would 
 not be "competent for any State to provide another board of canvas- 
 sers who may take possession of the ballot boxes, exclude the Federal 
 officers, and secretly count the votes and declare a different result." 
 This recount was privately conducted by three aldermen, and was not, 
 and would not have been permitted to be scrutinized by the United 
 States supervisors. 
 
 But even if the law were held to be valid its provisions were not 
 carried out. The statute in question conferred upon the board of 
 aldermen a special jurisdiction, and unless its provisions were strictly 
 carried out the proceedings were void. The law did not contemplate 
 a geneial policy of substituting an aldermanic count for the ward 
 count, or that recounts should be granted merely on account of the 
 closeness of the vote. The petitions must "specify wherein they 
 deem them in error," and unless the petitions did so specify no juris- 
 diction was conferred. The petitions in this case merely specified that 
 the returns were in error in counting more votes for contestant and 
 less for contestee than were cast. There was no suspicion of fraud, 
 and the persons signing the petitions had no reason to believe that 
 error had been committed, but only a general hope that a recount 
 might prove beneficial to their candidate. The aldermen were empow- 
 ei'ed to "determine the questions raised," by an inspection of the 
 ballots, and were given no general power to make a recount. In this 
 case there were no "questions raised." Further, the jurisdiction was 
 conferred on the board of aldermen or a committee of three. The 
 committee having taken jurisdiction, the jurisdiction of the board 
 abated. But the certificate sent to the governor was based on a deci- 
 sion of the board and not of the committee. 
 
 The ward count was made in public by eight State officers and two 
 supervisoi's in each ward. The aldermanic count was made in private 
 by three aldermen for the whole district. Moreover the law had not 
 been complied with by the city clerk; he had not entered the original 
 count, and amended it on certificate of the committee, but had in the 
 first instance entered the aldermanic count, as found by a vote of the 
 board. For all these reasons the committee held that the law had not 
 been complied with. 
 
 But as to two wards, there was evidence outside the various counts 
 showing the correctness of the first count. The count made by the 
 precinct officers might be balanced against that made by the commit- 
 tee of aldermen, and the testimony of each sustaining the correctness 
 of their own counts might not disturb the balance, but the testimony 
 of the United States supervisors, who, whether they were anything 
 more or not, were at least official witnesses of the count, made the pre- 
 ponderance of testimony in favor of the first count. They, as well as 
 the election officers, testified to px'ecautions taken in the count of these 
 two wards which made the probability of error much less than in the 
 count made by the aldermen. If the original count was followed in 
 
 thfisp, xggrrig r-nntflsf-ant -nrnnlrl V»A olp ft.prl, 
 
334 DIGEST OF CONTESTED ELECTION CASES. 
 
 In one ward there was evidence that some of the ballots were left in 
 an open box during the day, after having been taken out and counted, 
 and that outsiders were in the room. These ballots may have been 
 tampered with. It was also shown that " stickers " were used by both 
 candidates, and that some of those used by candidates for other 
 offices had fallen from the tickets. This might also have happened in 
 the case of votes for Congress, and in that case the original count and 
 the recount might both have been correct, but the original count would 
 have represented the votes as cast by the voters. 
 
 The minority held that the Federal statute providing for United 
 States supervisors was not enacted by Congress pursuant to its power 
 to "make or alter" regulations as to the manner of holding Congres- 
 sional elections. The supervisors were no part of the machinery of 
 the election, but merely witnesses appointed by the courts to watch 
 the proceedings of an election conducted by State officers. They were 
 only required to attend on the day and at the place of election, and 
 hence a provision for a subsequent recount was not an interference 
 with the performance of their duties. Moreover, there was no evi- 
 dence that they could not have attended the recount had they desired. 
 
 The returns of the supervisors did not show, except in one ward, 
 that they themselves counted the votes. Therefore their returns gave 
 no additional weight to the ward counts. To say that the ward count 
 was balanced against the count of the aldermen, and that either might 
 be shown to be correct by a slight preponderance of outside evidence, 
 was like saying that the decision of a higher court reversing the deci- 
 sion of a lower court was merely balanced against the latter decision. 
 
 The recount was made under a valid statute of the State, and the 
 statute w^s strictly followed. The specification in the petitions that 
 the ward counts were erroneous in that more votes were counted for 
 one and less for another candidate than weie cast were as specific as 
 was possible. No evidence having been introduced by either party 
 going to the merits of the case, or behind the returns, the case turned 
 on the validity of the two counts, and the statute of Massachusetts 
 requiring that the recount should prevail, it should be permitted to do 
 so in the absence of any evidence other than the original count to 
 impeach it. 
 
 After considerable debate the resolutions presented by the minority 
 were rejected by a tie vote of 120 to 120 (the Speaker voting to make 
 the vote a tie). The resolutions of the majority were then adopted by 
 a vote of 124 to 123 (the Speaker giving the casting vote in the affirma- 
 tive), and Mr. Dean was sworn in. 
 
 [lEUs., 190-223.] 
 
 (6) Richardson m. Rainey. 
 
 Intimidation and military interference. Majority report to void the 
 election; minority report for cont^tee. House refused to consider; no 
 further action. 
 
 Majority report by Mr. Ellis; minority report by Mr. Hiscock. 
 
 According to the returns, contestee received a majority of 1,528 votes, 
 and so far as appeared or was alleged, these returns correctly I'epre- 
 sented the votes cast in the distx'ict. But contestant claimed to have 
 been deprived of a large number of votes by intimidation, and also 
 
FORTY-FIFTH CONGRESS. 335 
 
 that a number of polls should be thrown out for irregularities. The 
 committee refused to throw out any polls or votes for the irregularities 
 charged, but found that there was such intimidation practiced through- 
 out the district as to prevent a free and fair election, and that on this 
 account the seat should be declared vacant. 
 
 The intimidation consisted in (1) the presence of Federal troops at 
 the polls, sent there by the Government, "without cause other than 
 to influence the result of the election in the interest of contestee and 
 the Republican party;" (2) the presence at the polls and at public 
 meetings of armed colored militia, and threats made by them; and (3) 
 threats of social and religious ostracism made by colored bodies against 
 colored men who should vote for contestant. 
 
 In discussing the question of military interference the committee 
 discussed at some length the recent history of the State of South Caro- 
 lina, and the events which preceded the election. The government of 
 the State, according to the committee, had become so corrupt in the 
 hands of the unscrupulous white leaders of the colored voters that the 
 decent people of all classes had come to recognize the absolute neces- 
 sity of reform of some sort. The Democratic party had nomitiated its 
 purest man for governor, and the canvass made under his leadership 
 had been conciliatory throughout. As a result many thousands of 
 colored voters who had heretofore voted the Republican ticket had 
 begun to ally themselves with the other party, and the movement was 
 increasing in strength. In this situation the leaders of the Republican 
 party resorted to a policy of intimidation, to compel the colored voters 
 to vote their ticket. In spite of the fact that the commander of the 
 Federal troops in the State had announced that there was no disorder 
 or resistance to authority, and no need of additional troops, and that 
 the judges of the various districts had announced that there was no 
 state of violence or threatened intimidations in their districts, the gov- 
 ernor had issued a proclamation commanding certain imaginary "rifle 
 clubs " and other disorderly bodies to disband, and calling out all the 
 militia of the State to preserve the peace. And the President of the 
 United States had issued a proclamation reciting a state of insurrection 
 and resistance to authority, and, through the Secretary of War, had 
 sent to the State all the available Federal troops. These troops had 
 been scattered through the State in small bodies, and been stationed 
 at or near the various polling places. To be sure they committed no 
 overt acts, and made no threats or attempts at coercion, but the effect 
 was just the same, for the negroes were told that they were there to 
 watch over them and see to it that they voted the Republican ticket; 
 and in their ignorance they believed it, and many of them who doubt- 
 less would otherwise have voted the Democratic ticket were thus in- 
 duced to vote the Republican ticket. 
 
 The committee quoted from a large number of English authorities, 
 and suggested that the rule there laid down was the correct one; that 
 the presence of troops at or near the polls of itself vitiated an election, 
 regardless of whether any active intimidation was resorted to by them 
 or not. On the question of social and religious ostracism, and intimi- 
 dation by the colored militia, the committee said: 
 
 The record in this case discloses a condition of moral, social, and religious intoler- 
 ance and intimidation exercised by the adherents and political friends of the sitting 
 member in the First Congressional district of South Carolina that renders the idea of 
 freedom of thought and opinion, the idea of free political action, on the part of the 
 
336 DIGEST OF CONTESTED ELECTION OASES. 
 
 colored race, an utter mockery and delusion. Preachers preached against the Demo- 
 cratic party. Threats of ' turning out of the church ' those who acted and voted with 
 that party, threats of divorce from wife and separation from children, threats of social 
 ostracism, were indulged throughout the entire district. Colored women assaulted 
 and heaped epithets upon those men of their own race who dared to act with the 
 Democratic party. Colored men were told that there was for them no social, moral, 
 or religious existence or affiliation with their own race if they acted or voted other- 
 wise than in obedience to the behests of the Republican leaders. It is even shown 
 in the record that the sitting member declared that all colored men who acted with 
 the Democratic party 'should be treated as enemies.' And this feeling and those 
 appeals were not confined to any particular or isolated community or portion of the 
 district, but existed and were exercised throughout the entire district. Your com- 
 mittee feel constrained to declare that undue, illegal, and improper influences were 
 brought to bear upon the vast mass of colored voters throughout the First Congres- 
 sional district of South Carolina, and while the proof of the extent of the influence 
 and of its control can not be arrived at with any degree of accuracy from the evidence, 
 yet sufficient is shown to leave no doubt but that these undue influences were widely 
 felt, and prevented, in the district in contest, a free, fair, and full election. 
 
 But if any doubt were left in the minds of your committee, of the perfect propriety 
 of declaring the election in the First South Carolina district null and void for the 
 grounds heretofore examined, the doubt is solved because of the wholesale intimida^ 
 tion practiced by armed colored clubs and organizations during the campaign and at 
 the polls on election day. The evidence is clear that throughout the district, and in 
 nearly every precinct of the district, these organizations existed. They were armed 
 with the State arms for the moat part, but many had private arms. They went to 
 their political meetings with arms in their hands, and at many of the polling plac^ 
 they appeared on election day in organized force. So intolerant. were they against 
 individuals of their own race who diffei'ed with them politically that they uttered 
 against them the most terrible threats, and in some cases resorted to actual violence. 
 They denied the right of free speech; they tore tickets from the hands of voters and 
 substituted others; they interfered with the domestic peace of colored Democrats by 
 persuading their wives to leave them, and left no device that could intimidate unem- 
 ployed to coerce men of their own color into voting the Republican ticket. 
 
 The ansvyer that the other side resoi'ted to sunilar tactics was not 
 sufficient, for it was not sustained by the evidence, and if it were it 
 would only constitute an additional reason for declaring the election void. 
 
 The minority considered the discussion of the recent histoiy of 
 South Carolina found in the committee report out of place. 
 
 The record submitted in this case fails to furnish the facts alleged, and, in our 
 judgment, the wailings over the real or fancied past wrongs of the State are as much 
 out of place in the report as a discussion of the causes of the war or any of its results 
 would be. 
 
 Upon the subject of social ostracism, the minority called attention 
 to the fact that there was no law of this or any other country "mak- 
 ing it a crime for those of adverse views to refuse to associate 
 together." Campaigns in this country are productive of great excite- 
 ment. Angry discussions between members of the same church or 
 order, or even of the same family, are not uncommon. Such things 
 take place everywhere, and the minority thought that nothing more 
 was proved in regard to the district in contest. 
 
 "Rifle clubs" and "saber clubs" had been extensively organized by 
 the Democrats preparatory to this -campaign and attended the meet- 
 ings of both parties, often seeking to break up Kepublican meetings. 
 Pledges were signed not to hire or patronize colored men who would 
 not vote the Democratic ticket. If there was quiet in the State, it was 
 the quiet of subjection. On the other hand, the evidence showed that 
 " twenty colored men had personal altercations and were threatened 
 with social ostracism if they voted the Democratic ticket; neverthe- 
 less, they were not intimidated thereby. One cow pen was burned; one 
 man had a quarrel with his wife, struck her, and was abandoned by 
 
FORTY-FIFTH CONGRESS. 337 
 
 her; she had left him twice before; and one man was struck in the face 
 by a woman armed with an tmibrella." There was nothing in the 
 record to show that the colored voters were being prevented by social 
 ostracism or fear from voting the Democratic ticket. Comparing the 
 vote with the census, it was evident that contestant must h^ve received 
 at least one-fifth of the colored vote, which would have been impossi- 
 ble if the charges of intimidation were true. 
 
 The sending of troops to the State was a legitimate police measure. 
 If there was intimidation by the Republicans, as charged by the 
 majority, or by the Democrats, as charged by the minority, in either 
 case the governor was authorized in issuing his proclamation an,d in 
 calling on the President for troops, and the President was justified in 
 sending them to preserve the peace. It was not alleged that they had 
 been used in any other way. The proposition of the majority was 
 that "a police force, detailed by the Federal authorities, that simply 
 enables the citizen to enjoy his rights, is illegal, and renders that 
 enjoyment illegal and void." The English principle has no applica- 
 tion to the conditions of a free country, and is not the law here. 
 
 In the judgment ot the undersigned, the action of the Federal Government was 
 justified, and incumbent upon it, in stationing the troops as it did in South Carolina; 
 that nothing in the conduct of the troops, neither did the fact of their being stationed 
 there, influence the electors to vote otherwise than as their judgments and consciences 
 dictated; but, to the contrary, the action of the Federal Government and the presence 
 of the troops enabled the ff'eedmen to participate in the election and vote for the 
 candidates they preferred. 
 
 The minority report was only signed by Mr. Hiscock. 
 
 The reports were made to the House on May 18, 1878, and, in 
 accordance with the usual order, were . ordered printed and recom- 
 mitted to the Committee on Elections. On June 17 the case Was called 
 up, but the House, by a vote of 103 to 126, refused to consider it, and 
 it was not afterwards called up. This left contestee in his seat, and to 
 that extent the views of the minority were sustained. 
 
 [1 Ells., 224-288.] 
 
 (7) Frost vs. Metcalfe. 
 
 Illegal votes., irregularities, am,d hribery. Report for sitting member. 
 No final action iy the House. 
 
 Report by Mr. Harris. 
 
 Contestee had only received a majority of 19 votes on the face of 
 the returns, and contestant sought to overcome this majority by 
 charges of illegal votes, bribery, and irregularities. Six of the illegal 
 voters were boat workmen who claimed a residence where they voted. 
 The committee held that the evidence was not sufficient to overcome 
 the presumption of legality arising from the reception of their votes. 
 Twelve votes had been rejected by the election officers on the ground 
 that they wei'e not registered. Two of them were shown to have 
 been on the original list, hut not on the list in the hands of the judges, 
 and the committee counted their votes. The evidence was not suffi- 
 cient to show that the judges acted wrongly in rejecting the other 
 10. It was shown that the registry list, as printed and sent to the 
 election officers, was very imperfect, many names having been omitted 
 thiough the carelessness of the printer. Contestant claimed that this 
 had lost him more votes than contestee; but as, except in the case ef 
 
 H. Doc. 510 22 
 
338 DIGEST OF CONTESTED ELECTION CASES. 
 
 these 12, there was no attempt to prove that the voters had even 
 offered to vote, the committee certainly could not consider the ques- 
 tion of counting any additional votes. 
 
 Contestant claimed an error of 9 votes against him in footing up 
 the returns of a precinct. The only evidence was the memorandum 
 paper, in which a figure 1 was found in the second column from the 
 right with no in the first column. It had been added in as 10, but 
 there was nothing in the comparison of the total votes for Congressman 
 and for other officers to indicate that the number was not properly 10, 
 and no oral testimony was introduced. The committee held that if 
 the error was committed it ought to have been shown by better evi- 
 dence. A similar ruling was made as to an entrj' of 25 for contestee 
 alleged to have been made twice and included in the sum. 
 
 United States marshals to the number of 728 were appointed in the 
 district. It was alleged that these appointments were given as bribes 
 for votes for contestee. The committee " deprecated the appointment 
 of United States marshals under any pretext," but recognized that the 
 law permitted it. In this case the only attempt to prove that the 
 appointments were in the nature of bribery was the testimony of 8 
 of the appointees to the effect that they received their appointments 
 under an understanding that they would vote for contestee. But 5 
 of them did vote for contestant; two voted for contestee, but would 
 have done so in any case, and the other did not vote at all. 
 
 The report when made was ordered to be "passed over for the 
 present," and was not afterwards called up. Contestee was thus left 
 in his seat, as recommended by the committee. 
 
 [1 Ells., 289-293.] 
 
FORTY-SIXTH CONGRESS. 339 
 
 FORTY-SIXTH CONGRESS, 1879-1881. 
 
 Committee on Electiorw. 
 
 Mr. Springer, Illinois, Mr. Keifer, Ohio, 
 
 Manning, Mississippi, Camp, New York, 
 
 Speer, Georgia, Calkins, Indiana, 
 
 CoLERiCK, Indiana, Field, Ma.ssac.husetts, 
 
 Armfield, North Carolina, Overton, Jr., Pennsylvania, 
 
 Beltzhoover, Pennsylvania, Weaver, Iowa, 
 
 Sawyer, Missouri, Clark, New Jersey, 
 Mr. Phister, Kentucky. 
 
 Case><. 
 
 (1) John M. Bradley m. William F.Slemons, Arkcmsan. 
 
 (2) Horatio Bisbee vs. Noble A. Hull, Florida. 
 
 (3) James McCabe vs. Godlove S. Orth, Indiana. 
 
 (4) J. C. Holmes and John L. Wilson, Iowa. 
 
 (6) W. B. Merchant and Eobert O. Herbert vs. Joseph H. Acklen, 
 LouisiaTia. 
 
 (6) E. Moody Boynton vs. George B. Loring, Massacft,msetts. 
 
 (7) Sebastian Duffy vs. Joseph Mason, New York. 
 
 (8) James E. O'Hara vs. William H. Kitchin, North Carolina. 
 
 (9) Jesse J. Yeates vs. Joseph J. Martin, North Carolina. 
 
 (10) Andrew G. Curtin vs. Seth H. Yocum, Pennsylvania. 
 
 (11) Ignatius Donelly vs. William D. Washburn, Minnesota. 
 
 (1) Bradley vs. Slemons, 
 
 Conspiracy, fraud, deception, irregularities. Report of ooiiindttee 
 for contestee. Report of Mr. Weaver to declare seat vacant. Contestee 
 retained the seat. 
 
 Report by Mr. Sawyer; dissenting report by Mr. Weaver. 
 
 Contestant took testimony in only three of the twenty counties of 
 the district, and in two of these the testimony was taken more than 
 forty days after the service of the answer to the notice of contest. 
 Contestant claimed that the forty days allowed by law commenced to 
 run from the first day on which he took testimony, but the committee 
 held that the act of Congress approved March 2, 1875, conclusively 
 showed that section 107 of the Revised Statutes must be so construed 
 as to require the time to run from the day of the service of the answer 
 of contestee. In this case no reason was shown why the forty days 
 would not be sufficient; indeed, only eighteen days were actually occu- 
 pied by contestant in taking testimony. The testimony taken after 
 the time was all cross-examined by contestee, and the objection only 
 entered after all the testimony was taken, and contestee in his oral 
 argument before the committee had expressed entire willingness to 
 
340 DIGEST OK CONTESTED ELECTION CASES. 
 
 have the testimony considered. But the committee held that "the 
 peoph^ of the diwtiict have interests and rights which can not be thus 
 taken from them," and excluded all the testimony except that taken 
 in Jefferson County, which was taken within the time. 
 
 Contestant alleged that a fraudulent conspiracy had been entered 
 into to carry the election of Jefferson County by illegal methods. The 
 testimony showed that conferences were held between leaders of the 
 different parties for the purpose of selecting a "compromise ticket" 
 for county offices. Such a ticket was nominated containing candidates 
 from different parties for the different offices and was elected at the 
 State and county election held in October. These conferences had 
 nothing to do with the Congressional election in November, and there 
 was no proof that it had been in any way affected by them. 
 
 Contestant also charged that the ballot boxes in Pine Bluff and other 
 precincts had been stuffed in the interest of contestee. The principal 
 testimony relied on only showed that Democratic tickets were being 
 printed on election day. The part of the testimony tending to show 
 that they were printed after the close of the polls was contradicted, 
 and the fact that they were printed on election day was satisfactorily 
 explained by the witnesses. 
 
 Complaint was made that no votes were counted from two townships. 
 In one of these the judges of election were threatened with arrest by 
 a United States marshal if they did not close the polls before sunset. 
 When the polls were closed, they were surrounded by an armed body 
 of negroes. The judges were frightened and left the box in the pos- 
 session of the negroes. It was carried to the county clerk's office, 
 securely locked, and was still there in the same condition when the 
 testimony was taken. If contestant had desired to have the votes 
 counted, he should have put the ballots in evidence. In another pre- 
 cinct the box had been stolen by an armed body of men. It did not 
 appear to which party these men belonged, and as the strength of the 
 two parties in the precinct was about equal, it could not be inferred 
 which party was injured. In some other precincts no election was 
 held, the judges of election not being present, and the voters, probably 
 through ignorance, neglecting to take advantage of the provision of 
 the law allowing them to organize and hold the election. No reason 
 was given for not holding the election, and the committee refused to 
 count any votes. 
 
 In Chicot County, a few days before the election, fraudulent posters 
 were circulated announcing the candidacy of a well-known Republican. 
 These posters were delivered to a political friend of contestee at the 
 same hotel where contestee was stopping, and contestee was seen in 
 conversation with the person who distributed these circulars a few 
 moments before the latter took the train with them for Chicot County 
 The committee strongly condemned the trick, and held that if the 
 evidence had been sufficient to show the connection of contestee with 
 it, and that it had had an effect on the voters sufficient to change the 
 result of the election, the election ought to be held void and a new one 
 ordered. But the testimony was not sufficient to show the connection 
 of contestee; the candidate fraudulently announced only received 90 
 votes. It was impossible to tell how many voters were confused and 
 prevented from voting, but the number was probably much less than 
 the majority returned. Moreover, most of the testimony in regard 
 to this count}^ was among that taken out of time. 
 
FOKTY -SIXTH CONGRESS. 341 
 
 If, however, all the claims of contestant were allowed, and he were 
 given the largest possible number of additional votes that could be 
 inferred in any view of the law and evidence, the number would still 
 be more than 850 short of overcoming the returned majority of 2,827. 
 
 Mr. Weaver filed a brief dissenting report, submitting to the House 
 the question whether contestee had not waived his objections to the 
 testimony taken out of time; and, also, whether the frauds shown in 
 the testimony were not sufBcient to render uncertain the result of the 
 election and to call for a new one. All the other members of the com- 
 mittee agreed to both the conclusions of law and the result of the 
 committee report. 
 
 The report of the committee was adopted without division, and con- 
 testee retained the seat. 
 
 [1 Ells., 296-314:.] 
 
 (2) BisBEE VS. Hull. 
 
 Returns not canvassed. Report for contestant. Contestami seated. 
 
 Report by Mr. Keifer. 
 
 There were 17 counties in the district. The State canvassing board 
 canvassed the returns from 15 counties, and contestee having a majority 
 of 12 votes in these counties, a certificate of election was issued to him. 
 One of the counties omitted by the State canvassing board had been 
 omitted on the ground that no return for one precinct had been 
 included by the county canvassers. After the issue of the certificate 
 to contestee, the State canvassing board, under mandate of the supreme 
 court of the State, reconvened and canvassed the vote of this countj^ 
 and certified it to the governor. On the vote of the 16 counties now 
 canvassed contestant had a majority of 201. The vote of the remaining 
 county would not change the result. Contestant applied to the gov- 
 ernor for a certificate of election, and his application was referred to 
 the attorney -general, who strongly favored granting it, but the appli- 
 cation was refused by the governor. 
 
 Contestee claimed that the State supreme court had no jurisdiction 
 to issue a mandamus on the State canvassers, and that the canvass of 
 Madison County was hence without authority of law. . The committee 
 did not consider this question, but held that whatever might be the case 
 of the State officers the duty of the committee was to count all the 
 returns unless it was shown that they did not correctly represent the 
 vote. This was not charged in this case, and the committee counted 
 the returns from the two omitted counties, including the omitted pre- 
 cinct. It was admitted also that one ballot box had been stuffed, mak- 
 ing a change of 186 votes against contestant. This showed a majoritj' 
 of 350 votes for contestant. 
 
 Contestee claimed that 18 votes should be deducted from contestant 
 as cast by nonresident or unregistered persons. The committee found 
 the charges sustained in 11 cases, and deducted the votes, leaving the 
 majority of contestant 339. Contestee also asked that three precincts be 
 rejected because they had not been canvassed by the county canvassing 
 board at its first count, and because the supreme court, under whose 
 mandate they were subsequently canvassed, had no authority to issue 
 such mandamus. But copies of the original precinct returns were put 
 in evidence by contestee; there was no pretense that they did not cdr- 
 
342 DIGEST OB" CONTESTED ELECTION OASES. 
 
 rectly represent the vote cast, and the committee refused to reject the 
 returns. The committee were unanimous in their decision. 
 
 The House agreed without division to the resolutions presented, and 
 Mr. Bisbee was sworn in. 
 
 [1 Ells., 315-319.] 
 
 (3) McCabk vs. Orth. 
 
 No testimony taken. Contest disinissed. 
 
 Report by Mr. Calkins. 
 
 Contestant served notice of contest within the legal time, to which 
 answer was duly served by contestee. No testimony was taken by 
 contestant, partly on account of illness in his family, and partl}'^ because 
 another contest between candidates for a county office was expected 
 to develop, and it was alleged did develop, the evidence relied on to 
 sustain contestant's claim. Contestant presented a memorial to the 
 committee reciting these facts and also alleging the discover}' of new 
 evidence tending to show bribery committed in behalf of contestee. 
 Contestee presented counter affidavits. The committee decided to 
 recommend a resolution to the House permitting the service of a new 
 notice and answer and the taking of new testimony, but from some 
 inadvertence the resolution was never reported. Near the close of 
 second session the committee, in view of the shortness of the time 
 remaining, rescinded its former action and recommended that the con- 
 test be dismissed. The report of the committee was unanimous and 
 the resolutions presented were adopted without division. 
 
 [1 Ells., 320-321.] 
 
 (4) Holmes and Wilson. 
 
 Legal time of election in lo^oa. Report against petitioners adopted 
 hy the Ilo'use. 
 
 Report by Mr. Field; dissenting report by Mr. Colerick. 
 
 Elections for Representatives in Congress were held in Iowa in 
 October, 1878, on the same day as the State election, and in the Eighth 
 and Ninth districts Messrs. Lapp and Carpenter received majorities of 
 the votes, the total vote in each case amounting to over 30,000 votes, 
 and were given certificates of election. The election for Representa- 
 tives in Congress was held on this day under proclamation issued by 
 the governor, after consultation with the attorney-general and eminent 
 legal counsel. 
 
 On November 5, 1878, elections were held in a few precincts in the 
 Eighth and Ninth districts, and in the Eighth district 171 votes were 
 cast, nearly all for Mr. Holmes, and in the Ninth district 357 votes, 
 nearly all for Mr. Wilson. No proclamation was issued for this elec- 
 tion, it did not appear that it was held by the legally appointed officers, 
 nor that the voters had general notice of it, and the returns from the 
 precincts where elections were held were not canvassed by any State 
 or county officers. 
 
 Holmes and Wilson presented petitions setting up that they had 
 been elected at elections held on the day fixed by the statutes of the 
 United States, and praying to be admitted as members. The petitions 
 did not state that any other persons had been elected at any other 
 
FORTY-SIXTH CONGRESS. 343 
 
 election, nor ask that the election of any other persons be inquired 
 into. The petitions, with the accoinpanying papers, were referred to 
 the Committee on Elections. The accompanying papers consisted 
 chiefly of ex parte affidavits, showing the facts substantially as above 
 stated. 
 
 The committee held that the power of the House to inquire into the 
 election of any of its members cfid not apply to the committee, but that 
 its jurisdiction was limited by the terms of the reference. The papers 
 referred did not raise any question of the election of the Iowa delega- 
 tion, and the reference of them did not confer on the committee any 
 jurisdiction to inquire into the legality of that election. 
 
 The petitioners in this case not being contestants in the ordinary 
 sense, the terms of the statute for taking testimony in contested elec- 
 tion cases did not apply, and the fact that the papers presented were 
 not put in evidence under the provisions of this statute was no reason 
 for dismissing the case. They were, however, merely ex parte aflida- 
 vits and could at most be taken as an offer of proof. If the facts 
 alleged in them, taken as true, would be sufficient to sustain the right 
 of petitioners, some method of obtaining evidence ought to be adopted; 
 but if the facts alleged were not sufficient, if proved, to sustain the 
 claim of petitioners it would be needless to attempt to procure evidence 
 of their truth or falsity. 
 
 On the facts presented the committee found that neither Holmes 
 nor Wilson would be entitled to a seat, whether the 5th of November 
 wa'* the legal day for holding the election or not. For, if that was 
 the legal day, no election was then held under the authority and 
 machinery of election provided by the State, and the few votes cast at 
 the alleged election could not constitute an expression of the will of 
 the people. 
 
 The validity of the October election was not in issue before the com- 
 mittee, but, as a minority of the committee proposed to discuss the 
 question, the majority gave their opinion. The whole question was 
 whether the State of Iowa was included within the exception mentioned 
 in section 6, chapter 130, of the acts of the United States of 1875, 
 excepting from the operations of section 25 of the Revised Statutes 
 those States whose constitutions "must be amended in order to effect 
 a change in the day of election of State officers in said State." 
 
 It devolved upon the governor of Iowa to determine whether the 
 State came within this exception, and he having determined that it 
 did, the committee, while not recognizing his decision as binding upon 
 the House, were not disposed to depart from the general rule that the 
 construction of a State statute or constitution by the proper State 
 authorities would be followed by the Federal authorities. 
 
 A detailed analysis of the provisions of the Iowa constitution was 
 
 fiven. Under it annual elections were to be held, those in the Presi- 
 ential years being held on the same day as the Presidential election 
 in November. Part of the State officers were elected every year, and 
 the governor and members of the general assembly who were elected 
 in the odd-numbered years for terms of two years were required by 
 the constitution to be elected in October. The attorney-general was 
 to be elected at such time as the legislature should fix. The time for 
 the election of other officers was either not mentioned, or they were 
 required to be elected at the "general election." The committee (in 
 an argument too elaborate to be outlined here) held that the purpose of 
 
344 DIGEST OF CONTESTED ELECTION CASES. 
 
 the constitution of 1857, the construction placed on similar provisions 
 in the earlier constitution, contemporary interpretation, and a detailed 
 examination of the constitution itself, all showed that the election for 
 State officers in the even-numbered year, not a Presidential year, was 
 required by the constitution to be held in October. The provision of 
 the constitution expressly requiring the election for Representatives 
 in Congress to be held in that month was not considered by the com- 
 mittee, as the time of holding this election was held to be in the entire 
 control of the legislature, subject to the laws of Congress but not to 
 the constitution of the State. 
 
 Five members of the committee agreed to this report. Five others 
 agreed in the conclusion, but not in all the reasoning. Mr. Colerick 
 filed a minoritj^ report reaching a different conclusion. There is noth- 
 ing to show the opinion of the other four members oi the committee 
 (Messrs. Spi'inger, Speer, Phister, and Clark). 
 
 The minority report of Mr. Colerick argued that the election of 
 October 8 was not held on the legal day and was hence void. The 
 election held on November 5 was held on the legal day, but being held 
 in only a few precincts, without proclamation or general notice, did 
 not constitute such an election as to entitle anyone to a seat under it. 
 He accordingly recommended that the seats of the Representatives 
 from the Eighth and Ninth districts of Iowa be declared vacant. 
 
 He held that the rule that State consti'uctions of State laws would 
 be followed by Federal authorities only applied to judicial interpreta- 
 tions by the highest courts of a State and not to constructions by the 
 governor and attorney-general. 
 
 Under the constitution of Iowa the date of the State elections in 
 three years of each period of four years was fixed. In the years of 
 the Presidential election it was in November. In the odd-numbered 
 years it was in October. But in the even-numbered years, not Presi- 
 dential, there was no provision in the constitution, and the date of the 
 "general election" in that year was thus left within the control of the 
 legislature. The State of Iowa was therefore not one of the excepted 
 States. 
 
 The resolutions presented by the majority were adopted without 
 division. 
 
 [1 Ells., 322-344. J 
 
 (5) Merchant and Herbert vs. Acklen. 
 
 Failxire to file liriefs. Cnne <Usmii<sed. 
 
 Report by Mr. Springer. 
 
 The testimony in this case was printed January 15, 1880, and sent 
 to the parties with notice to file briefs within twenty days from Janu- 
 ary 25, 1880. No briefs were filed, and on May 21 and December 22. 
 1880, the contestants were again notified to file briefs. No reply was 
 made to these notices, and on March 1, ISSl, the committee reported 
 these facts with a resolution declaring contestee elected, and giving 
 contestants leave to withdraw theirpapers. The resolutions were passed 
 by the House without division. 
 
 [1 Ells., 345.] 
 
FOETY-SIXTH. CONGKESS. 345 
 
 (6) BOYNTON VS. LORING. 
 
 Illegal votes; invperfect iallots; insufficiency of notice of contest. 
 Hepo'rt of committee fm' contestee; dissenting report hy Mr. Wca/verfor 
 contestant. No final action iy the House. 
 
 Report bj^ Mr. Calkins; dissenting repoi't by Mr. Weaver. 
 
 The notice of contest in ttiis case was extremely vague and general, 
 and consisted chiefly of statements of illegal practices "said to have 
 been" practiced at the election. The committee held that "had the 
 exceptions alleged against the notice of contest for insufficiencj' been 
 pressed before the committee the exceptions no doubt would have been 
 sustained." The opinion of the committee on the same question in 
 Duffy vs. Mason was quoted. But in order to be certain that no injus- 
 tice was done the committee, examined into the merits of the case as 
 disclosed by the evidence. Certain questions involving the construc- 
 tion of the registration law of Massachusetts and the law in regard to 
 challenged voters were not decided, as not being necessary to the 
 determination of the case. One vote cast for the contestee by a man 
 who would have voted for contestant but hoped to gain immunity from 
 prosecution by voting for contestee was deducted from contestee but 
 not added to contestant. 
 
 Under the constitution of- Massachusetts persons unable to read and 
 write the English language were not permitted to vote. In the town 
 of Amesbury the registering officers had required persons who had 
 been previously registered to read and write in their presence, as well as 
 persons applying for registration for the first time, and refused reregis- 
 tration to those whose disqualification was shown by this test. It was 
 claimed that the registering officers did not have the power under the 
 law thus to refuse registration, but the committee, without passing upon 
 this question, held that it being conceded that the persons in question 
 were not in fact qualified voters their votes could not be counted 
 whether the registering officers had been technically negligent or not. 
 
 In the town of Haverhill 42 printed ballots with the name of con- 
 testee erased were found on a recount, but the committee did not 
 consider the evidence sufficient to show that they were originally so 
 cast. Certain defective votes were deducted from each party, but no 
 account of the evidence on which they were deducted was given. 
 
 In one town there were 138 ballots counted for contestee having 
 printed on them "For Representative, Sixth district, George B. 
 Loring, of Salem." It was claimed that these ballots did not "clearly 
 indicate in writing" or printing, as required by the laws of Massachu- 
 setts, the office voted for. But there was no other "Sixth district" 
 in which the voters of this town had the right to vote except the Sixth 
 Congressional district, nor was there any Representative office to be 
 iilled for any Sixth district in which the town was situated except the 
 office of Representative in Congress, and the committee therefore held 
 that the office was clearly indicated. 
 
 The deductions required by the evidence not being sufficient to over- 
 come the majority of contestee, the committee reported resolutions 
 declaring him elected. The result was concurred in by all the mem- 
 bers of the committee except Mr. Weaver. 
 
 Mr. Weaver held that the votes of the voters who were refused 
 reregistration in the town of Amesbury, on the ground that they could 
 
346 DIGEST OF CONTESTED ELECTION CASES. 
 
 not read and write, should be counted for contestant, arid also the 42 
 votes in Haverhill found erased on a recount should be counted as 
 then found. He also held that the 138 ballots with the words " For 
 Representative, Sixth district," were required by the laws of Massa- 
 chusetts to be rejected, but he did not make any account of them in 
 reaching the result. 
 
 Ho also argued quite elaborately that the educational qualification 
 law of Massachusetts, disfranchising over 100,000 citizens, should, 
 under the fourteenth amendment, reduce the representation of the 
 State. If it had not been for the disfranchisement affected by this 
 law contestant would certainly have been elected, and the House ought 
 to apply the most available remedy by seating him. 
 
 The House, T»y a vote of 136 to 93. decided to consider the case, but 
 after voting on many motions to adjourn, etc., finally proceeded to 
 other business without acting on this case. This left contestee in the 
 seat, as recommended bv the committee. 
 
 [1 Ells., 346-360.] 
 
 (7) Duffy vs. Mason. 
 
 Insufficiency of notice; h'ihejy; illegal votcK. Rejxn-t fw contestee, 
 who retained the seat. 
 
 Reported by Mr. Colerick. 
 
 The notice of contest in this case contained five specifications. The 
 first, fourth, and fifth merely alleged in general terms that contestant 
 was elected and that contestee was not. The second and third were 
 as follows: 
 
 Second. That your election was effected and procured by force, fraud, intimida- 
 tion, promises of favor, corruption, the buying of votes and voters, and other corrupt 
 and illegal means used by you and in your behalf; and that your. certificate of elec- 
 tion as such Member of Congress was and is based upon and the result of such force, 
 fraud, intimidation, promises of favor, the buying of votes, and other corrupt and 
 illegal means used by you and in your behalf. 
 
 Third. That your election was procured by illegal votes and illegal voting in your 
 behalf, and by 5'our procurement or the procurement of those interested in your 
 election. 
 
 The committee held that this notice of contest was clearlj- insufficient, 
 and that if the objections made to it by contestee in his answer had 
 not been afterwards waived, the committee would have lieen justified 
 "in dismissing this case or excluding the evidence offered in support 
 of the alleged grounds of contest." But the parties having entered 
 into an agreement to admit all of the testimony taken by contestant as 
 part of the case, in consideration of an extension of the time for taking 
 testimony by contestee, the objection was held to be waived, and the 
 committee were "compelled to examine the evidence and determine 
 the merits of this contest." 
 
 The grounds of contest, as stated in the brief of contestant, were 
 five: (1) A system of briberj^ practiced by Thompson Kingsford and the 
 Oswego starch factorj^ in compelling their employees, by fear of dis- 
 charge, to vote the Republican ticket; (2) the expenditure of money 
 by contestee and the committees of his party to procure the attendance 
 of voters at the polls, and for other purposes not permitted by the 
 statute of New York; (3) the employment of day-laborers about the 
 timeof the election for the purpose of influencing their votes; (4) direct 
 buying of votes, and (5) illegal voting. 
 
FORTY-SIXTH CONGRESS. 347 
 
 It was shown that rumors had been prevalent in the city of Oswego 
 for many years that the managers of the Oswego starch factory improp- 
 erly influenced their employees to vote the Republican ticket. But 
 the committee held that it was necessary to ascertain the truth of these 
 rumors, and not their mere existence. Most of the evidence of con- 
 testant merely went to establish the existence of the rumors. Three 
 persons were found who had been discharged, during a period of eight- 
 een years, and who believed that their discharge was due to political 
 reasons. None of these had been discharged within two years of the 
 election in contest, and there was evidence to show that each of th^ 
 had been discharged for drunkenness. A large number of employees 
 of the factor}' testiiied that no such system of intimidation oi influence 
 existed, and that they had always voted freely for either party. 
 
 Under the statute of New York any candidate or other person was 
 forbidden to furnish or pay for anj^ "entertainment for any meeting 
 of electors," with the intent of influencing the election; to furnish 
 money for the purpose of "procuring the attendance of voters;" or — 
 
 To contribute money for any other purpose intended to promote an election of 
 any particular person or ticket, except for defraying the expenses of printing and 
 the circulation of votes, handbills, and other papers previous to any such election, 
 or for conveying sick, poor, or infirm electors to the polls. 
 
 It was shown by the evidence that contestee paid to the various 
 county committees assessments amounting to 1400, and contestant sim- 
 ilarly paid $375. Part of the $400 contributed by contestee was shown 
 to have been expended in ways which contestant claimed were pro- 
 hibited by the statute, namely, "in procuring the attendance of voters 
 at the polls" who were neither "sick, poor, or infirm," and in paying 
 the expenses of public meetings and speakers. The committee held 
 that even if such expenses were prohibited l)y the statute there was 
 nothing to show that contestee had authorized such an expenditure of 
 the money contributed by him, and he could not be held responsible 
 for the illegal acts of his agents. Besides, even if such expenses were 
 illegal, a legal voter who attended a meeting in a hall paid for by a 
 party committee, or who rode to the polls in a carriage'provided by a 
 party committee, though he was able to walk or pay tor his own ride, 
 certainly ought not to be deprived of his vote. And there was noth- 
 ing to show how many such voters there were. 
 
 The third chaxge was based on the fact of the erection of a large 
 building by Thompson Kingsford during the months preceding the 
 election. Large numbers of laborers were employed on this building 
 for some months previous to the election and for a month or more 
 afterwards, until work was stopped on account of cold weather. A 
 number of witnesses testified that they believed or had heard that 
 these men were employed for the purpose of inducing them to vote 
 the Republican ticket. All the testimony was hearsay, and did not 
 even as hearsay attempt to show specific acts of influence exercised upon 
 particular voters. On the other hand, the testimony showed that the 
 building was erected because of urgent necessity and not for political 
 reasons, and many employees who voted for contestant testified that 
 no influences were brought to bear to afi'ect their votes. 
 
 The charge of direct bribery was confined to two votes and to 
 rumors of the expenditure of $1,500 by contestee. So far as the 
 rumors were specific they were directly denied by the only persons 
 
348 DIGEST OF CONTESTED ELECTION CASES. 
 
 who could have knowledge of their truth or falsity. One witness tes- 
 tilied that he had been paid 50 cents for his vote by a student in the 
 law office of contestee. He was intoxicated while testifying, was 
 impeached, and contradicted on material points by other witnesses. 
 Another person was said to have stated since the election that he had 
 been paid f 1 for his \'ote by this same student. This, even if true, 
 would not affect the i-esult, as there was nothing to connect contestee 
 with the transaction. 
 
 The charges of illegal votes were confined to 14 students of Madison 
 University. There was no evidence of the illegality of their votes 
 except the fact that they were students in the university. The num- 
 ber of stvidents voting was much less than in former years, and it was 
 shown that legal advice was taken by the students and great pains 
 taken that no one should vote who was not legally entitled to vote. 
 Six of these students were affirmatively shown to be married men and 
 old residents of the town of Hamilton, and there was no evidence that 
 the others were not legal residents. They had all been acquitted by 
 a United States commissioner of the charge of illegal voting. The 
 committee refused to reject their votes. 
 
 The committee were unanimous in their decision, and the House 
 agreed without division. 
 
 n Ells. 361-377.] 
 
 (8) O'Hara vs. Kitchin. 
 
 Rejection of precinct returns hy county canvassing hoard. Testimoyiy 
 not taken in time. Report of committee foi' contestee. Xo iwtion hy tlie 
 House. 
 
 Report ]>y Mr. Field. 
 
 The date on which the notice of contest in this case was served, or 
 whether it was served at all, was in dispute. Contestee in his answer 
 objected that he ought not to ))e called upon to answer the notice, 
 because "no lawful or sufficient notice of said contest has been served 
 upon him * * * within the time prescribed by law." The answer 
 of contestee was served April 29, 1879. As the canvass of the votes 
 in part of this district had been involved in complicated legal proceed- 
 ings, it was impossible to determine with certainty when the result of 
 the election was determined, and, hence, when the thirty days for serv- 
 ing notice of contest expired. The first testimony taken h\ contestant 
 was one hundred and ninety-four days after the service of the answer 
 of contestee. Contestant alleged an oral agreement for the extension 
 of time, but this agreement was denied by contestee, who supported 
 his denial by a number of affidavits. The committee condemned the 
 practice of extending time by agreement, and held that in an}' case 
 the agreement must be in writing. There being no written agreement 
 in this case, the committee declined to determine from the affidavits 
 whether or not there was an oral agreement, and excluded all the testi- 
 mony as inadmissible. 
 
 But if the testimony were admitted it would not establish contest 
 ant's case. Part of it was open to the additional objection of being 
 taken without notice. There was only one witness from whose testi- 
 mony any definite conclusions affecting the election might be drawn, 
 and the most that could be inferred from his testimony was that in the 
 county of Edgecombe precinct returns giving an aggregate majority 
 for contestant of 925 votes were reiccted by the county canvassers. 
 
FORTY-SIXTH CONGRESS. 349 
 
 chiefly on the ground that the judges of election were not regularly 
 sworn. The committee did not agree as to whether such votes should 
 be counted or not (see case of Yeates vs. Martin), but as in this case 
 the number of votes affected was less than the majority returned for 
 the sitting member, the committee unanimously agreed in reporting 
 resolutions declaring contestee entitled to his seat. There was no 
 action by the House on this case. 
 [1 Ells., 3Y8-383.] 
 
 (9) Yeates vs. Martin. 
 
 Reject'uin of returns. Polls nM opened in ttuw. Election officers tiot 
 qiuxlified. Ballots with distinguishing mark. Majority report for 
 contestant; minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Speer; minority report by Mr. Field. 
 
 According to the returns as canvassed by the county and State boards 
 of canvassers, contestee had a plurality of 51 votes. Each party alleged 
 that this canvass did not include all the votes that should have been 
 counted for himself, and did include votes which should not have been 
 counted ior his opponent. 
 
 The vote of Providence Township, which gave a majority of 39 votes 
 for contestant, had been rejected by the county canvassers on the 
 ground that the returns had been delivered by the registrar instead of 
 by one of the judges. The committee unanimously counted the vote 
 of this precinct. Contestant insisted that if the vote of this precinct 
 was counted, the vote of Salem Township, where he received amajority 
 of 135 votes, and which he alleged had been rejected for the same reason, 
 should be counted. The testimony merely showed that the return had 
 been rejected "on account of informalitj-." The committee held that 
 the evidence was not sufficient to show that the return was not properly 
 rejected. The poll was not opened until 12 o'clock, the registrar was 
 not regularly appointed, the officers of election were not sworn, and 
 only about half of the vote of the precinct was polled. 
 
 The vote of South Mills precinct, where contestee had 64 majority, 
 was excluded by the committee on the ground that the polls were not 
 opened until three hours after the legal time, only a part of the officers 
 of election officiated, and these were not sworn, and only about one-half 
 of the registered vote was polled. The vote of Hamilton precinct, 
 where contestee also received a majority of 64 votes, was also rejected 
 on the ground that contestee had for a time acted as registrar, contrary 
 to the imperative provisions of the statute. The vote of Vandemere 
 precinct was rejected for reasons similar to those of South Mills. 
 
 In Merry Hill precinct 108 votes for contestee weie rejected by the 
 election officers on the ground that the words "Republican ticket" at 
 the head constituted a "device." The statute of North Carolina pro- 
 vided that— 
 
 The ballots shall be on white paper, and may be printed or written, or partly written 
 and partly printed, and shall be wiihont deuice. 
 
 The committee held that these votes must be rejecte'd, but said that 
 they had "come to this conclusion with much reluctance." 
 
 The precincts of Goose Nest and Hamilton had been consolidated 
 several years before, and all the names of the voters on the Goose Nest 
 registry list transferred to the Hamilton list. Just before this election 
 the precincts had been again separated. The judges of election at Goose 
 
350 DIGEST OF CONTESTED ELECTION CASES. 
 
 Nest refused to receive the votes of any voters who did not present a 
 certificate that their names had been erased from the Hamilton list. 
 These certificates had been given to a number of voters the evening 
 before election, but were refused on the day of election. Contestee 
 claimed that all the votes tendered and refused should be counted for 
 him, but the committee held that they could not be counted, and that 
 if they could, the evidence was insufficient to show their number. 
 
 Making the deductions and additions above indicated would give 
 contestant a majority of 156 votes, and the committee accordingly 
 reported resolutions declaring him elected. 
 
 The minority disagreed as to most of the findings. Under the law 
 of North Carolina, if any of the judges of election were not present at 
 the .opening of the polls, it was the duty of the registrar to appoint 
 others of the same party. This law necessarily implied dela}' if suit- 
 able persons could not immediately be found, and the delay in opening 
 the polls in each of the precincts in issue was in fact due to this cause. 
 In no case was the effort to hold an election given up, or the impres- 
 sion created that there would be no election. It was the duty of the 
 voters to wait until the polls could be opened and if there then re- 
 mained time enough for all the votes to be cast, the freedom of the 
 election was not interfered with. The case of polls closed before the 
 legal time was not analogous. If the votes of all the voters who were 
 shown by definite proof to have left under the impression that there 
 would be no election were counted the result would not be affected. 
 The fact that some of the officers of election were not sworn or other- 
 wise not qualified would not vitiate the election. They were officers 
 de facto, whose acts affecting the public were valid. There was no 
 allegation of fraud or injury resulting from their action. Many of 
 the irregularities for which it was sought to reject polls were not men- 
 tioned in the notice of contest and ought not to be considered. None 
 of these irregularities were sufficient to vitiate the election, and the 
 returns should be counted, including that of Salem precinct rejected 
 by the county canvassers. 
 
 The names of the voters in Goose Neck precinct should have been 
 transferred from the Hamilton registry books without individual appli- 
 cation, and there should be counted for contestee the least number 
 shown by the proof to have tendered their votes for him. The minor- 
 ity left to the House the question whether the 108 ballots with the 
 words " Republican ticket" were properly rejected. If they were not 
 included, the majority of contestee, under the findings of the minority, 
 would be 267. If they were included, it would be 375. 
 
 The resolutions presented by the majority were adopted by a vote 
 of 115 to 103, and Mr. Yeates was sworn in. 
 
 [1 Ells., 384-415.] 
 
 (10) CURTIN ;vv. YOCUM. 
 
 Unregistered votes. Majority report to declare xcat vacant; first 
 m.inarlty report for contestee; second m inority report dovbtfid. Gmi- 
 clufiions of first mhiority report adopted hy the House, and contestee 
 retained the seat. 
 
 Majority report by Mr. Springer; first minority report by Mr. 
 Calkins; second minority report by Mr. Field. 
 
 There were three reports in this case: A majority report, by Mr. 
 Springer, signed by Messrs. Springer, Manning, Clark, Speer, Cole- 
 
FORTY -SIXTH CONGKESS. 351 
 
 rick, Armfield, Beltzhoover, and Sawyer, holding that the result of 
 the electioH was doubtful under the evidence, and that the seat should 
 be declared vacant; a minority report by Mr. Calkins, signed by 
 Messrs. Calkins, Keifer, and Weaver, holding that contestee was 
 entitled to retain the seat, and a second minority report, signed by 
 Messrs. Field, Overton, and Camp, differing from the other reports 
 in some conclusions and expressing doubt as to others, but coming to 
 the conclusion that if the case was to be decided on the testimony pre- 
 sented, the result reached by the minority had more in its favor than 
 that reached by the majority. The conclusions of the first minority 
 report were adopted by the House, and contestee retained his seat. 
 
 The testimony in this case covered over 4,000 pages (being the 
 largest amount of testimony ever tEtken in a contested-election case in 
 the House of Representatives, unless it be the case of Greevy v,s\ 
 Scull in the Fifty-second Congress, which covered 3,000 pages of much 
 finer tj'pe) and involved a large number of issues, but the issue on 
 which the case turned, and the only one discussed in the reports, was 
 the effect on the election of the votes of a large number of unregis- 
 tered voters which were alleged to have been received by the judges 
 of election without the presentation of the affidavits and vouchers 
 required by the Pennsj'lvania statute to be presented by unregistered 
 voters. There were some disputed questions of fact in regard to 
 whether it was sufficiently shown that these affidavits were not in fact 
 presented by these unregistered voters, and also in regard to the 
 number of such unregistered voters. The disputed questions of law 
 were as to whether the statute in question was mandatory and the 
 votes illegal, and also as to the effect they should have on the election 
 if they were illegal. 
 
 The qualifications of voters, as prescribed bj- the new constitution 
 of Pennsylvania, were all personal qualifications, namely: Age, United 
 States citizenship, State residence, election district or precinct resi- 
 dence, and payment of taxes; the required qualifications in each of 
 these respects being specifically defined in the constitution. The only 
 provision in regard to registration was: 
 
 All laws regulating the holding of elections by the citizens, or for the registration 
 of electors, shall be uniform throughout the State; but no elector shall be deprived 
 of the privilege of voting by reason of his name not being registered. 
 
 Acting under this constitution the legislature had enacted a regis- 
 tration law, providing for a registration of the qualified voters to be 
 made out by the assessors from the assessment lists, and corrected by 
 the same officers sixty days before the election. This list was to be 
 furnished to the election officers, "and no man shall be permitted to 
 vote at the election on that day whose name is not on said list, unless 
 he shall make proof of his right to vote as hereinafter required." The 
 proof required was an affidavit by the claimant setting forth the pos- 
 session of all the qualifications required by the constitution, and an 
 affidavit by another qualified elector of the precinct showing that the 
 claimant has been for two months a resident of the precinct. The 
 contents of these affidavits were specifically and minutely prescribed 
 by the statute. It was further provided that — 
 
 If any election officer shall refuse or neglect to require such proof of the right of 
 suffrage as is prescribed by this law * * * from any person offering to vote, 
 whose name is not on the list of assessed voters, 
 
 or who might be challenged, he should be guilty of a misdemeanor 
 and liable to a fine and imprisonment. 
 
352 DIGEST OF CONTESTED ELECTION. CASES. 
 
 The election officers were required by one of their number to return 
 all the affidavits of voters, with the poll list, tally sheet, and other 
 papers, to the office of the prothonotary. The ballots in the ballot 
 boxes were to be deposited with the nearest justice of the peace, or 
 other custodian appointed by the court. 
 
 The evidence of lack of registration in this case consisted of copies 
 of the registry lists, poll lists, and affidavits of voters on tile in the 
 offices of the protonotaries. Contestant insisted that whenever the 
 name of any person was found on the list of persons voting, but was 
 not found on the registry list or among the affidavits on file, such per- 
 son was proved to have voted without registration and illegally. The 
 parties differed as to how many such names there were, but the com- 
 mittee found that after eliminating all names shown to have been 
 probably registered under a similar name, all in regard to which the 
 possession of the constitutional qualifications was affirmatively shown, 
 and all which were shown to have voted for one party or the other, 
 there still remained some 900 votes of persons not I'egistered and not 
 shown to be qualified, and in regard to which there was no proof for 
 which party they voted. This number was more than ten times as 
 great as the certified majority of the sitting member, and three times 
 as great as the majority claimed by him after the elimination of such 
 illegal voters under the evidence. 
 
 The majority of' the committee held that the statute requiring an 
 unregistered voter to prove his qualification bj^ a specified affidavit 
 was mandatory, and that the votes cast without the presentation of 
 such affidavits were illegal. 
 
 The evident object of the law-making power of Pennsylvania in the passage of the 
 foregoing statute was this: Such had been the looseness theretofore in receiving 
 parol evidence as to the right of persons to vote on the day of election and such was 
 the diflBculty of indicting persons for perjury" on such parol evidence that it was 
 deemed necessary to provide by law that the proof of an elector's right to vote should 
 no longer rest on parol evidence, but that the voter, in order to establish by compe- 
 tent evidence his right to vote, should file a written or printed affidavit of himself as 
 to his qualifications, and also the written or printed affidavit of another qualified 
 voter of the same election district as to his residence in the precinct for two months 
 immediately preceding the election. 
 
 The authorities are uniform to the effect that all statutes are mandatory which 
 can not be disregarded without ignoring the legislative intent. The will of the legis- 
 lature can not be carried out unless this provision of the statute is complied with, 
 and to disregard it is to disregard one of the safeguards which the law-making power 
 of Pennsylvania deemed necessary for the protection of the ballot. 
 
 According to the distinction between mandatory and directory stat- 
 utes, as laid down in all the authorities, this statute could not be 
 regarded as directory. The question had not been directly passed on 
 by the Pennsylvania courts since the adoption of the new constitution, 
 but the former decisions of the courts, so far as applicable, sustained 
 the decision of the committee. The only apparent exception was in a 
 case where the voters had not neglocted to register or furnish the 
 necessary evidence of qualification, but where tne officers of the law 
 had neglected to furnish the election officers with a certified copy of 
 the registry list. 
 
 The result of all the authorities is that all constitutional provisions in [and] stat- 
 utes defining what the voter himself must do, both as to qualifying himself as an 
 elector and furnishing the quality and quantity of evidence thereof which the law 
 demands, is mandatory, jurisdictional, and in the nature of conditions precedent, 
 while those which merely relate to the conduct of the election officers may or may not 
 
FORTY-SIXTH CONGRESS. 353 
 
 be directory according as they may or not appear to affect results, and according as 
 they may or may not seem to have been regarded by the lawmaking power as essen- 
 tial and necessary safeguards against the mischief the statute was intended to prevent. 
 
 Independent of this question of unregistered voters an attempt had 
 been made by each party to show illegal votes cast for the other, and 
 contestant claimed that an elimination of these votes would elect him 
 by 99 majority. Contestee claimed that this elimination would elect 
 him by 379 majority'. But in view of the 900 unregistered votes the 
 committee held that neither of these claims could be sustained. There 
 was no way of eliminating these unregistered votes, and their number 
 was so large that the result of the election could not be ascertained 
 without eliminating them. It would be unjust to deduct them all from 
 either candidate, or from the candidates pro rata, and if only those 
 precincts in which they were cast were thrown out there could be 
 no certainty that the result thus shown was the true result of the 
 election. The only just course was to remit the matter to the people 
 by a new election. The objections that the contestant, by not produc- 
 ing the ballots of the voters and by resisting contestee's effort to have 
 them preserved so that he might produce them, had himself prevented 
 it from being shown for whom the illegal voters voted were not well 
 taken, for it appeared that contestant had throughout shown an 
 extraordinary degree of diligence in showing for whom illegal votes 
 were cast. The number of votes in question was so large that it was 
 impossible for either party, in the time for taking testimony, to show 
 for whom all the illegal votes were cast. 
 
 The result being thus left in uncertainty, the majority of the com- 
 mittee recommended resolutions declaring the election void arid the 
 seat vacant until filled by a new election. 
 
 The minority of the committee held that the registration law, in so 
 far as it affected the right of a nonregistered voter to vote, if he was 
 otherwise qualified, was not mandatory. The words of the constitu- 
 tion, "but no elector shall be deprived of the privilege of voting by 
 reason of his name not being registered," forbade such aconstruction. 
 
 We regard section 10 of the election law of Pennsylvania, supra, so far as it requires 
 a qualified elector to produce his own affidavit and that of a voter of his election dis- 
 trict to his qualifications, directory merely, and in the nature of a law to authorize 
 the board of election on the day of election, while it is being held, to correct the 
 registry lists, theretofore furnished them by the county commissioners, by adding 
 the names of qualified voters thereto who may have been unintentionally omitted. 
 The registry lists and poll lists will then agree. It is the duty of the election officers 
 to comply with this law. It is imperative on them, and if they fail they subject 
 themselves to the penalties provided in section 12 of the registry law, but to allow 
 a nonregistered voter to vote without requiring him to comply with the law, if he is 
 otherwise qualified, is quite a different question. If he refuses to comply on being 
 requested, then it is clearly the duty of the officers to refuse his vote because he 
 refuses to obey a reasonable regulation prescribed by the legislature, and he hurts 
 no one but himself; but if he is allowed to vote without being required to file the 
 affidavits, and is otherwise qualified, his vote is not an illegal one. The officers of 
 election have simply failed to take and preserve the evidence which the law requires 
 of them, but the failure on their part to take and preserve this evidence does not 
 reach the qualification of the voter. Nor do we believe the courts will hold any such 
 doctrine, for it would be equivalent to holding the evidence of a fact superior to the 
 fact itself. 
 
 The neglect in this case was not, as claimed by the majority, on the 
 part of the voters, but on the part of the election officers in neglecting 
 to require the affidavits of the voters. 
 
 H. Doc. 510 23 
 
354 DIGEST OF CONTESTED ELECTION CASES. 
 
 Moreover, the evidence was far from establishing that the voters in 
 question did not in fact present the proper affidavits. The only evi- 
 dence was the fact that the affidavits were not on file in the prothono- 
 tary's office. But the filing of the affidavits by the return judges was 
 only the last of a series of acts required to be performed by the elec- 
 tion officers, and the fact that it had not been perforjied raised no 
 presumption that the preceding acts had not been performed. 
 
 And in fact it was shown in regard to a large number of precincts 
 that the affidavits had been required of the voters, but had, under a 
 mistaken view of the law, been sealed up in the ballot boxes instead of 
 being filed in the office of the prothonotary. Under the law of Penn- 
 sylvania the ballots were to be preserved in the ballot boxes intact 
 until the next election, when they, with all other papers in the ballot 
 boxes, were to be publicly destroyed by the custodians, unless re- 
 quired to be kept by an order of the court. The " spring election " 
 in this year came on February 18, 1879. This happened also to be the 
 last day for taking testimony by contestant. It being discovered that 
 the affidavits in many precincts were in the ballot boxes, contestee 
 applied to the proper courts for orders restraining the custodians from 
 destroying the contents of the boxes. The contestant resisted this 
 petition, and in accordance with his contention the coui"ts denied the 
 prayer and the contents of the boxes were destroyed. Clontestant had 
 thus by his own act destroyed the testimony by which it would be pos- 
 sible to prove whether the voters in question had complied with the 
 law or not, and also to show for whom they had voted, so that if they 
 were held to have voted illegally they might be deducted. He thus 
 stood " in the position of the spoliator of documentary evidence asking 
 to take advantage of his own wrong." 
 
 Conceding, for the sake of the argument, that the votes we^e illegal, 
 the minority held the true rule to be that if it could be shown by the 
 use of due diligence for whom the votes were cast they should be 
 deducted from the parties respectively; if it could not be shown, and 
 the number of votes was small, they should be disregarded; if it was 
 large, the whole poll where they were cast should be thrown out. In 
 this case it could have been shown, and that it was not shown was 
 due to the action of contestant. If the polls where the votes were 
 cast were thrown out it would increase the majority of contestee; also 
 if the unregistered votes were deducted pro rata. Contestee could 
 not be deprived of his seat bv the application of any rule except that 
 of giving to contestant the advantage of an uncertainty produced by 
 his own acts. The minority accordingly recoriimended resolutions 
 declaring contestee entitled to retain his seat. 
 
 Messrs. Field, Overton, and Camp presented a second minority 
 report, disagreeing with the minority -in their construction of the 
 registration law, but agreeing in the conclusion that contestee ought 
 to retain the seat. They held that the provision of the registration 
 law for requiring affidavits of unregistered voters was mandatory, but 
 that the requirement that these affidavits should be filed in the office 
 of the prothonotary was directory. There was no proof that the 
 voters in question had voted illegally except a remote inference from 
 the fact that no affidavits were on file in the office of the prothonotary. 
 This certainly could not be inferred without evidence, and what evi- 
 dence there was bearing on the subject tended to show that the affi- 
 davits were required of the voters, but were sealed up in the ballot 
 boxes. 
 
FORTY-SIXTH C0NGBES8. 355 
 
 The contestant could easily have proved not onlj' what votes were 
 illegal, but for whom they were cast, but he had not only not done 
 this, but had resisted the efforts of contestee to preserve the evidence. 
 
 The burden of proof, even if the doctrine of declaring an uncertain election void 
 be adopted, is, we think, as stated by the minority, on the contestant to show that 
 more illegal votes than the returned' majority of the sitting member were cast, and 
 either that they were cast for the sitting member or that it is impossible to ascertain 
 for whom they were cast, and that this impossibility is an actual impossibility arising 
 from the circumstances of the case, and which could not have been remedied by the 
 use of due diligence, and not an impossibility arising wholly from the absence of 
 evidence that could have been taken. The party having the burden can not by his 
 own neglect create the impossibility. 
 
 On the facts as stated in the reports the election ought not to be 
 declared void; no one contended that the contestant ought to be seated, 
 and so if the House was to take final action on the reports as made, 
 the resolutions presented by the minority should be adopted. 
 
 The House, by a vote of 113 to 75, adopted the resolutions presented 
 by the •mvnxrrity^ and c )ntestee retained his set.t. 
 
 [1 Ells., 416^38.] 
 
 (11) DONELLT VS. WaSHBUKN. 
 
 Bribery; numbered iallots; unorganized counties; mforiiialiti.s. 
 Majorii/y report fm- contestant; minority report for contestee. No 
 action hy tlie House. 
 
 Majority report by Mr. Manning; minority report by Mr. Keifer. 
 
 The report in this case headed "majority report" is only signed by 
 five members — Messrs. Manning, Sawyer, Armfield^ Beltzhoover, and 
 Colerick. The "minority report" is also signed by five members — 
 Messrs. Keifer, Overton, Calkins, Camp, and Field. There is no 
 report signed by the other five members — Messrs. Springer, Speer, 
 Phister, Weaver, and Clark — but it would appear from statements in 
 the reports that part at least of them favored unseating Washburn 
 on the ground of bribery, according to the doctrine of the majority 
 report, but opposed the seating of Donnelly on the ground that he 
 did not receive a majority of the votes. 
 
 According to the returns, the majority of contestee was 3,013. 
 Contestant claimed that part of this majority was due to bribery, and 
 that some of the bribery having been traced to the sitting member 
 or his agents, he should be unseated. He also asked that the votes of 
 certain precincts and counties be thrown out,, and that he be given the 
 seat by virtue of the majority received by him in the remainder of 
 the district. 
 
 Besides the cases of bribery in bulk, it was claimed that twenty -two 
 individual cases of bribery were proved, and that attempted bribery 
 was shown in thirteen other cases, but the parties either refused the 
 bribe or voted for contestant in spite of it. Three of these cases were 
 alleged to be traceable to the office of contestee, and presumably to 
 have been committed by him or with his knowledge and approval. 
 One of these cases was that of a man who wrote to contestee asking 
 $50 for his services and support. The letter was not answered by 
 contestee, but was forwarded by some one else to a resident of the 
 same town with the applicant. This person received |50 from the 
 Republican committee, but gave' none of it to the writer of the letter, 
 as he did not trust him. 
 
356 DIGEST OF CONTESTED ELECTION CASES. 
 
 In. another case one Shagren was urged by a friend of the sitting' 
 member to go to his office and see his business manager, who would 
 convince him that he ought to vote for Washburn. He did go, but 
 was not convinced. Some time later, being; out of work, he was urged 
 to go to Washburn's office and he would be given a job. He went 
 and met Major Hale, a friend of Washburn, wno offered him $2 per 
 day until election to canvass and work for contestee. Major Hale 
 went into the back office, and after a conversation with the brother 
 of contestee returned and paid Shagren $5. Shagren accepted the $5, 
 but did not canvass for contestee nor receive the money he was to be 
 paid for doing so. He worked and voted for contestant. 
 
 The third case was of a man who had concluded not to take any 
 active part in the election because he had been promised money at 
 previous elections which he had not received. He had been a Demo- 
 crat, but was favorable to the election of Mr. Washburn. He was 
 urged to see the secretary of the Republican committee and attempted 
 to do so, but could not find him. He was afterwards informed bj' 
 some one that Mr. Washburn would like to see him in his office. 
 He went to the office, but did not find Mr. Washburn there. The 
 secretary of the Republican committee was there and agreed to pay 
 him for his time and expenses if he would go out and electioneer for 
 contestee. The next day, in the post-office, he was given $30 and 
 told to hire a team and go to work. Soon afterwards he went again 
 to the office of the sitting member and asked for more money. The 
 secretary of the committee, after going into the next room and talk- 
 ing to the sitting member, came back and handed him $20. 
 
 A fourth instance of bribery, involving about 90 votes, was also 
 sa,id to have been traced to Mr. Washburn. The voters were wood 
 choppers, working in Kittson County, chopping wood by the cord. 
 They were allowed to go to the nearest polling place and vote, and 
 were paid by the contractors in whose employ they were a sum equal 
 to the amount they would probably have earned in the time lost. 
 This sum, amounting to $160 or $170, was repaid to the contractors 
 by the pa,ymaster of a railroad of which contestee was the president. 
 It was paid by the individual check of the paymaster and not out of 
 the funds of the company. 
 
 These four cases of bribery being brought dix-ectlj^ home to con- 
 testee, were enough to convict him of bribery in any court. He had 
 not introduced any testimony to rebut the testimony against him, and 
 must thus be held to have admitted his guilt. There were eighteen 
 other individual instances of bribery and thirteen of attempted brib- 
 ery, similar to these cases except that there was nothing to show the 
 direct personal connection of contestee with them. There were also 
 two other precincts where collective bribery was shown. In the three 
 precincts, including the one already noticed, 161 votes were cast by 
 railroad workmen, presumably not permanent residents of the pre- 
 cincts where they voted. The precincts were in an unsettled country, 
 where there were scarcely any houses, and the railroad employees lived 
 in box cars. The voting places were box cars or railroad stations. 
 The men were all paid for the time they were absent from work, and 
 would not have voted if they had not been paid. Including all these 
 men, and the individual voters bribed or attempted to be bribed, a 
 total of 304 bribed voters was shown. The true number must have 
 been larger, because several persons were shown to have bribed a 
 
FORTY-SIXTH OONGEESS. 357 
 
 large number of voters and this 304 only included a few bribed by each 
 of these persons. 
 
 The majority of the committee held that — 
 
 It is a clearly established principle of law, both in England and the United States, 
 that bribery committed by the sitting member, or "by any agent of the sitting mem- 
 ber, with or without the knowledge or direction of his principal, renders the elec- 
 tion void." 
 
 But the committee did not rest the case on this principle, but held 
 that the evidence showed that contestant had received a majority of 
 the legal votes. They reached this result by deducting the 22 bribed 
 votes and by throwing out 7 precincts of Minneapolis and the whole 
 "county of Polk and Kittson" and Isanti County. Throwing out 
 these counties and precincts, and counting the counties of Stearns, 
 Morrison, and Douglas, not counted by the State canvassers, would 
 elect contestant bj^ a majority of 230 votes. 
 
 The counties of Stearns, Morrison, and Douglas had not been 
 counted by the State canvassers on the ground that these counties had 
 never been officially recognized by the legislature as organized. These 
 counties gave the sitting member a majority of 508 votes. The com- 
 mittee held that they were not legally organized, but as there was no 
 charge of fraud or illegal voting, they recognized them as de facto 
 organized, and counted the votes. 
 
 As each of the other three issues — the rejection of the seven pre- 
 cincts of Minneapolis, of Isanti County, and of the " counties of Polk 
 and Kittson" — involved more votes than 'the majority found by the 
 committee for contestant, any one of them may be considered a deci- 
 sive issue, and it will be necessary to examine them fully. 
 
 Seven precincts in Minneapolis were rejected by the committee on 
 the ground that the ballots were numbered by the election officers, as 
 a part of a system of intimidation practiced by contestee. The con- 
 stitution of Minnesota provided that "all elections shall be by ballot." 
 
 At the session of the legislature previous to this election the legisla- 
 ture had passed a law providing that in all cities containing over 12,000 
 inhabitants the ballots should be numbered by the election officers to 
 correspond with the names on the poll list. The district court of 
 Ramsey County, previous to the election, had decided that this law 
 was unconstitutional, on the ground that an election "by ballot" 
 implied a secret ballot, and that an election by numbered ballots was 
 not an election ' ' by ballot. " This decision was affirmed b}^ the supreme 
 court of the State suisequent to the election. A short time before the 
 election the officers of election of the various precincts of Minneapolis 
 and St. Paul, the only cities affected bj^ the law, held a meeting, and 
 after taking legal advice, concluded not to number the ballots. The 
 morning of the election, before the polls were opened, the officers in 
 these seven precincts reconsidered their determination, and agreed to 
 number the ballots. The committee held that — 
 
 If the numbering of the ballots had been the result of an innocent mistake on the 
 part of the judges of these seven precincts * * * we should not be in favor of 
 casting out the votes of these precincts simply for the reason that the ballots had 
 been numbered. 
 
 But the testimony showed that the numbering of the ballots was 
 regarded by the workingmen, who were largely supporters of contest- 
 ant, as a means by which their employers could intimidate them; that 
 there was a widespread conspiracy on the part of employers to intimi- 
 
358 DIGEST OF CONTESTED ELECTION CASES. 
 
 date their employees; that " a cloud of bribery surrounds the vote of 
 the whole city," and that the officers of election in these precincts, all 
 of whom were partisans of contestee, had decided at the last moment, 
 knowing these facts, and against their former agreement and the opin- 
 ions of their legal advisers, to number the ballots. The testimony 
 showed that one man had refused to vote if his ballot was numbei'ed, 
 and another had stayed away from the polls for this reason, and the 
 decrease in the Democratic vote compared with the previous election, 
 without any corresponding increase in the Republican vote, showed 
 that many others had been deterred from voting, and that contestant 
 was injured thereby. Under all these circumstances the votes cast at 
 these precincts must be rejected. 
 
 The vote of Isanti County was rejected by the committee on the 
 ground that the county canvassing board was illegally organized. The 
 law required the board to be composed of the county auditor and two 
 justices of the peace. The return of Isanti County was signed by the 
 auditor, one justice of the peace, and the probate judge. The com- 
 mittee held that the probate judge could not be construed to be a 
 de facto officer, because he was not acting by color of title as justice of 
 the peace, but as probate judge. The law of Minnesota, to be sure, 
 provided that where powers were given to three or more officers they 
 might be exercised % a majority, and under this provision, if the 
 canvassing boax'd had been legally organized, the auditor and one jus- 
 tice might have acted. But in this case the board was never legally 
 organized, and hence could have neither majority nor minority. If 
 this objection were purely technical, the committee might hesitate to 
 reject the return. But contestant in his notice of contest had charged 
 that the votes in this county "were not cast or counted for you, or 
 returned or canvassed as provided by law." The hona fides of the cast- 
 ing of the vote, arid the count of the precinct officers, being thus put 
 in issue by the pleadings, the burden was on contestee, by introducing 
 the ballots in evidence, to show the true vote. There being no evi- 
 dence of the vote except the returns, the vote of the county must be 
 rejected. 
 
 There was in the record a certificate of the vote in the "county of 
 Polk and Kittson," giving the vote by precincts. Two of these pre- 
 cincts were marked "Kittson County," and there was testimony that 
 a third was also in Kittson County. There was no "county of Polk 
 and Kittson " in the State of Minnesota, but separate counties. Kittson 
 County was unorganized, and not attached to Polk County for any 
 purpose. The election in the two precincts of Kittson County was 
 illegal because there were no legally established precincts, and because 
 the votes were cast by nonresidents, who were bribed. In two of the 
 precincts of Polk County more votes were cast than there were legal 
 voters in the precincts. There was no evidence to show in which 
 county the other precincts were. The proper course for contestee 
 would have been to show by competent evidence which precincts were 
 in Polk County, and then by introducing the ballots in evidence prove 
 the votes cast in them. This not having been done, and the "fraudu- 
 lent vote of Kittson County having been inextricably mixed into 
 whatever legal votes were cast in Polk County," the whole vote of 
 both counties must be rejected. 
 
 Rejecting these counties and precincts, contestant had a majority of 
 230 votes in the remainder of the district, and the committee recom- 
 mended resolutions declaring him elected. 
 
FORTY-SIXTH CONGRESS. 359 
 
 The minority of. the committee disagreed to all the propositions of 
 the majority report except as to counting the votes of the unorgan- 
 ized counties, not counted by the State canvassers. 
 
 The notice of contest sei-ved by contestant consisted of nine para- 
 graphs, stating only in general terms his grounds of contest. Most 
 of the issues considered by the committee were not specified in the 
 notice at all. The testimony, especially that by which it was sought 
 to prove bribery, was almost entirely hearsay of the most untrust- 
 worthy character. 
 
 As to the charge of bribery, the minority found that there was — 
 
 evidence tending to show that in this district the friends of the contestant and 
 contestee both used money to poll the district, and to provide means for getting to 
 the poUs voters who were remote from the polling places, and who were often with- 
 out conveyances of their own in which to travel to the polls on election day. Money 
 was undoubtedly spent to pay canvassers before the election, and in some instances 
 men were employed at the polls to hold tickets for the respective parties. The dis- 
 trict is a very large one in point of population and in extent of territory, and in 
 consequence of this greater effort was required to get out the full vote. Some money 
 was also expended to pay speakers to go over the district. The committee is not 
 prepared to say that such use of money is entirely illegitimate. It is very common, 
 if not universal, in all contested elections throughout the United States, for candi- 
 dates and their friends to use such means to secure votes. 
 
 But there was no evidence sufficient to show bribery, and especially 
 to show that it was committed by contestee. The four cases said to 
 have been traced dii-ectly to contestee were not made out. The first 
 case was that of a man who wrote to contestee asking for $50, not for 
 his vote, but for his services as a canvasser. Contestee did not answer 
 the letter; he did not receive the f50, and did not work for contestee. 
 As he had made a similar proposition to contestant, and did work for 
 him, he may have received money from contestant. 
 
 The second case, that of Shagren, was no stronger. Shagren was 
 impeached by three witnesses. Taking his testimony as true, it only 
 showed that a friend of contestee, in his office, but not in his presence, 
 promised Shagren |2 a day for his services as canvasser, and paid $5 
 down, possibly from money given by the brother of contestee. 
 Shagren did not work or vote for contestee, and received no more 
 money. The third case was that of a man who was paid $50 for his 
 time and expenses of himself and team in canvassing for contestee. 
 The statement of the majority report that part of this mone}^ was paid 
 in the presence of contestee was not borne out by the evidence, and if 
 it were, the payment was not for the man's vote, and did not constitute 
 bribery. The case of the 90 woodchoppers was not bribery, nor was 
 it traced to contestee. The woodchoppers were paid by their employer 
 the wages they would have earned if they had not gone to vote. They 
 were told to vote as they pleased, and no questions were asked as to 
 how they would vote. The money was repaid to the employers by the 
 paymaster of a railroad of which contestee was president, but it was 
 not paid out of the funds of the road. Quite possibly it was paid out 
 of the campaign fund of the party. This custom of paying laboring 
 men for the time lost while going to the polls the committee did not 
 approve, but it was very common in all the States, and certainly was 
 not bribery. 
 
 The minority discussed in detail all the other cases of bribery 
 charged, but found that the evidence relied on in most of the cases 
 was entirely hearsay. There was no pretense that the connection of 
 contestee with any of them was shown. The most that was shown in 
 
H()() DIGEST OF CONTESTED ELECTION CASES. 
 
 any cases was that men had been paid by party committees to canvass, 
 drive teams, and hold tickets at the polls, for the whole party ticket; 
 some of them were working in the especial interest of candidates for 
 local offices. 
 
 The minority held that even if bribery were proved it would not be 
 cause for vacating the seat unless it affected the result, which was not 
 claimed in this case. The English rule arose under the statute law of 
 England declaring a person guilty of bribery ineligihle to office under 
 the election at which the onense was committed. Such was not the 
 common law, and there was no such statute in this country. If, for 
 bribery or any other cause, a member was unworthy to sit in the House 
 he should be expelled by a two-thirds vote; but such questions did not 
 involve the "election, qualifications, and returns" of members, and 
 were not within the jurisdiction of the Committee on Elections. 
 
 Upon the question of numbered ballots, the committee held that the 
 statute for numbering them was constitutional in so far as it applied 
 to Congressional elections, and that if it were not, ballots honestly and 
 freely cast and correctly counted ought not to be rejected because they 
 were numbered. The power of the legislature to prescribe the time, 
 place, and manner of holding Congressional elections was not derived 
 from the State constitution, but from the Constitution of the United 
 States. The statute was not contrary to the Federal Constitution nor 
 to the laws of Congress, and was consequently valid. The numbering 
 of the ballots was required by the constitutions of several States where 
 the election was by ballot, and under the precautions of the Minnesota 
 law it was not a violation of the secrecy of the ballot. The unbroken 
 line of decisions in the House was that even if the ballots were num- 
 bered contrary to law the votes ought not to be rejected. It was not 
 shown in this case that the numbering was for the purpose of intimi- 
 dation. Most of the voters did not even know that the ballots were 
 being numbered. Two somewhat eccentric persons were said to have 
 refused to vote, but it was doubtful for whom they would have voted. 
 
 The rejection of the vote of the county of Isanti could not be justi- 
 fied. The contestant himself had put in evidence the returns of the 
 county, and there was not the slightest evidence that they did not cor- 
 rectly represent the vote. The canvassing of the returns was required 
 to be done by the auditor of the county, assisted by two justices of the 
 peace. In this case the certificate of the auditor was attested by two 
 persons, one signing himself "justice of the peace" and the other 
 "px'obate judge." The functions of the county board were purely 
 ministerial, and the only function shown to have been performed by 
 the justice of the peace and the probate judge was the attestation of 
 the certificate of the auditor. Even if the probate judge could not 
 legally act, the certificate of the other two was sufficient, especially 
 since the returns had been passed upon and canvassed by the State 
 board and there was no charge or evidence that they were not correct. 
 
 The minority were willing that the vote of the two precincts in 
 Kittson County should be rejected, as it would not affect the result, 
 and the voters were possibly nonresidents. The precincts in Polk 
 County where nonresidents were said to have voted ought not to be 
 rejected, as the evidence was very doubtful, especially under the Min- 
 nesota law requiring only ten days' residence in the precinct. But cer- 
 tainly the whole vote of Polk County ought not to be rejected because 
 
FORTY-SIXTH GONGRESS. 361 
 
 the vote of Kittson County was certified with it. There was a statute 
 of Minnesota under which such certification was legal. And in any 
 case the certificate was by precincts, and there was no difiiculty what- 
 ever in separating the precincts of the two counties. The vote of Polk 
 County was stated in the certificate of the State canvassers and also 
 in contestant's brief. 
 
 In accordance with the vote of two-thirds of the committee, the 
 minority recommended a resolution that contestant was not elected, 
 and in accordance with the views of those signing the minority report, 
 a further resolution that contestee was elected. 
 
 There was no action bj^ the House in this case. 
 
 [1 Ells., 439-516.] 
 
362 DIGEST OF CONTESTED ELECTION CASES. 
 
 FORTY-SEVENTH CONGRESS, 1881-1883. 
 
 Committee on Elections. 
 
 Mr. Calkins, Indiana, Mr. Jacobs, Jr., New York, 
 
 Hazelton, Wisconsin, Paul, Virginia, 
 
 Wait, Connecticut, Beltzhoovek, Pennsylvania, 
 
 Thompson, Iowa, Atherton, Ohio, 
 
 Ranney, Massachusetts, Davis, Missouri, 
 Ritchie, Ohio, Jones, Texas, 
 
 Pettibone, Tennessee, Moulton, Illinois, 
 
 Mr. MiLLEK, Pennsylvania. 
 
 Cases. 
 
 I) Paul Strobach vs. Hilary A. Herbert, Aldhamxi. 
 2^ Algernon A. Mabson vs. William C. Gates, Alabama. 
 
 3) James Q. Smith vs. Charles M. Shelley, Alabama. 
 
 4) William M. Lowe vs. Joseph Wheeler, Alabama. 
 
 5) George Witherspoon vs. Robert H. M. Davidson, Florida. 
 
 6) Horatio Bisbee, ]r., vs. Jesse J. Finley, Florida. 
 
 7) John C. Cook vs. Marsena E. Cutts, Iowa. 
 
 8) Alexander Smith vs. E. W. Robertson, Louisiana. 
 
 9) Samuel J. Anderson vs. Thomas B. Reed, Main£. 
 
 10) George M. Buchanan vs. Van H. Manning, Mississijn>i. 
 
 II) John R. Lynch vs. James R. Chalmers, Mississippi. 
 
 12) Gustavus Sessinghaus vs. R. Graham Frost, Missouri. 
 
 13) Robert Smalls vs. George D. Tillman', South Carolina. 
 
 14) Samuel Lee vs. John S. Richardson, South Carolina. 
 
 15) Edmund W. M. Mackey vs. M. P. O'Connor, South Carolina. 
 
 16) Carlos J. Stolbrand vs. D. Wyatt Aiken, South Carolina. 
 
 17) George Q. Cannon vs. Allen J. Campbell, Utah Tem^itory. 
 
 18) John T. Stovell vs. George C. Cabell, Virginia. 
 
 19) S. P. Bayley vs. John S. Barbour, Virginia, 
 
 20) John W. Jones vs. Charles M. Shelley, Alabama. 
 
 (1) Strobach vs. Herbert. 
 
 Irregularities. Report for contestee. Contestee retained the seat. 
 
 Report by Mr. Ranney. 
 
 Contestant presented two briefs, in one of which he claimed to be 
 elected by 938 majority and in the other by 463. The committee found 
 that in each brief there were clearly untenable claims covering more 
 votes than the majority claimed, and they therefore decided the case 
 against contestant without discussing the other issues. 
 
FORTY-SEVENTH CONGRESS. 363 
 
 In the first brief the vote of Escanaba County, where contestee had 
 a majority of 634, was asked to be rejected, and also 1,190 votes in 
 another county, where contestee's name was spelled Ilebert on the 
 ballots. The latter was merely a mistake of the printer; there was no 
 other person of like name a candidate, and the intention of the voters 
 was clear. In Escanaba County no official notice was given of the 
 election, but this was not necessary where the time of the election was 
 fixed by law. No ofiScers of election were regularly appointed, but 
 the law permitted the voters present, under such circumstances, to 
 select the election officers; this was done and the election was held. 
 Disallowing these two claims, contestant was not elected if every other 
 claim was allowed. In the second brief also the vote of Escanaba 
 County- was asked to be rejected. Disallowing this claim alone, on the 
 statement of this brief, destroyed the claim of contestant. And there 
 were other equally untenable claims, especially some precincts which 
 were asked to be rejected on no other ground than that contestant was 
 returned as receiving less than the colored vote and contestee more 
 than the white vote, as shown by the census. 
 
 Contestant then asked that the whole election be declared void, 
 alleging that the frauds committed at the State election in October 
 were repeated at the November election. But the committee found 
 no proof that this was so to such an extent as to affect the result. 
 
 The committee unanimously recommended a resolution permitting 
 contestant to withdraw his contest without prejudice. The House 
 adopted the resolution without division. 
 
 [2 Ells., 5-7.] 
 
 (2) Mabson vs. Oates. 
 
 Application f(/r time to take further testimony. Majority report to 
 dis^niss cdfie; minority report to ejctend ti/me. Case dismissed. 
 
 Majoritj'^ report by Mr. Calkins; minority report by Mr. Thompson. 
 
 Notice of contest and answer were duly served, but contestant took 
 no testimony until about a month after the service of answer, when 
 he took the testimony of a few witnesses, all on the same day. Some 
 time later contestee took the testimony of a few witnesses in reply. 
 This was all the testimony in the record. Contestant presented an 
 affidavit claiming that he had used due diligence to procure his testi- 
 mony in time, but could not because all the officers in the district 
 competent to take testimony were his political opponents and would 
 not take his testimony because they had themselves been elected by 
 the same fraudulent methods as contestee. Contestant had succeeded 
 in taking the depositions of about 100 witnesses, but the notary had 
 refused to forward them. He asked that further time be granted 
 him in which ta take testimony. The subcommittee to which this 
 application was referred reported adversely, on the ground that con- 
 testant had not used due diligence, and that his affidavit was defective 
 in not stating specifically the facts he expected to prove, or the wit- 
 nesses by whom he expected to prove them. Contestant then filed 
 another affidavit, avoiding some of these objections, but the committee 
 held that this affidavit came too late. 
 
 It would be dangerous to establish a precedent allowing a contestant or contestee, 
 after finally submitting their cases, to ascertain from the report of the committee the 
 grounds upon which he had been overruled, and to then supplement his application 
 
364 DIGEST or CONTESTED ELECTION CASES. 
 
 by a new aflBdavit, avoiding the decision, and thus open up the t:ase again. , ^uch a 
 practice your committee think would lead to interminable delays, and woul9* trans- 
 form the committee into mere advisers of the parties. The committee are of opinion 
 that parties should be bound by a reasonable rule of diligence, and that there-should 
 be a time fixed beyond which the doors for the reception of ex parte affidavits or 
 evidence should be shut. 
 
 As contestant conceded that the evidence taken, including that not 
 yet forwarded, would not establish his case, the committee recom- 
 mended a resolution permitting contestant to withdraw his papers 
 without prejudice. 
 
 A minority of the committee thought that contestant had used due 
 diligence, and that the interests of justice required that the case be 
 investigated. They i-ccommended a resolution providing for the taking 
 of additional testimony. 
 
 The House passed the resolution recommended by the majority 
 without division. 
 
 [2 Ells., 8-17.] 
 
 (3) Smith vs. Shelley. 
 
 Fraud; hallot-hi.r xt tiffing; irregularities. Majority report tJuit ccu- 
 testant elected., and on account of his death the seat he declared vacant; 
 minority report for contestee. Seat declared vacant. 
 
 Majority report by Mr. Thompson; minority report by Mr. Beltz- 
 hoover; second majority report by Mr. E,anney. 
 
 The issues in this case, as in the other cases from this district in 
 other Congresses, were chieflj' questions of fact in regard to the elec- 
 tion at nearly every precinct in the district. Contestant charged that 
 throughout the district the election officers were either all Democrats, 
 or that tha Republican officer was too ignorant to detect fraud; that 
 in very many precincts, as the result of a conspiracy, the Democratic 
 election officers refused to open polls, in the hope that the Republicans, 
 if they held an election at all, would make informal returns; that in 
 many cases such informal returns were rejected bj- the countj' can- 
 vassers; that in many precincts the ballot boxes were stuffed or the 
 returns falsely made, and that a correction of all these wrongs would 
 show that he and not contestee received a large majority of the votes 
 actually cast. 
 
 The committee found instances of all these varieties of fraud proved. 
 Where the returns had been rejected for informalities they counted 
 the vote as shown by the proof to have been actually cast; where 
 ballot boxes were stuffed or false returns made they deducted the votes 
 returned and added the votes proved to have been cast, It is not 
 necessaiy -here to go into an analysis of the evidence in regard to the 
 particular precincts. There were two majority reports. According 
 to the findings in regard to particular precincts in the report \ij Mr. 
 Thompson (which seems to have been the report of a majority of the 
 committee) contestant was shown to have a majoritjr of 2,803 votes. 
 According to Mr. Ranney his majority was 3,073. 
 
 Preliminary to a discussion of the evidence in regard to particular 
 precincts all the reports discussed the character of the district and the 
 general features of the case. This district had been made for the 
 express purpose of including in it as large a proportion as possible of 
 the Republican voters of the State. At the time of its organization 
 the counties composing it cast a Republican majority of about 15,000 
 
FORTY-SEVENTH CONGRESS. 365 
 
 votes. According to the censu.s of 1880, just taken, there were 18,000 
 more colored voters than white in the district. The testimony showed 
 that from 95 per cent to 97i per cent of the colored votei-s voted the 
 Republican ticket when permitted to do so. At ovcr}^ previous 
 election the district, and each county in it, had given a Republican 
 majority. 
 
 The minority found the evidence insufficient to sustain the charges. 
 While it was true that the colored voters largely predominated, there 
 was no evidence except estimates and opinions to show how the voters 
 were divided politically. There had always been a great lack of har- 
 mony among tne Republicans, and never less than two candidates claim- 
 ing to be Republicans. It was natural, under such circumstances, that 
 many colored voters would not care to take part in the election. 
 
 The best evidence of the vote cast was the ballots themselves, and 
 where, as in Alabama, they were required by the law to be preserved 
 for the express purpose of being used on a contest, no secondary 
 evidence should be admitted until the ballots had been produced or 
 their absence accounted for. But if the secondary evidence offered 
 were admitted, it would not be sufficient in most cases to establish the 
 facts claimed, and when it was, it was often impossible to purge the 
 result, owing to the lack of testimony showing what votes had been 
 included in the canvass. 
 
 The House, by a vote of 145 to 1 (144 not voting), adopted the reso- 
 lution presented by the majority, and contestant having died, the seat 
 was declared vacant. 
 
 [2 Ells., 18-61.] 
 
 (4) Lowe m. Wheeler. 
 
 Fraud; irregularities; marked hallots; unregistered and, illegal votes. 
 Majority report for contestant; minority report for contestee. Cmitest- 
 ant seated. 
 
 Majority report by Mr. Hazelton; second report bj^ Mr. Ranney; 
 minority report by Mr. Beltzhoover. 
 
 According to the returns as certified by the secretary of state, con- 
 testee had a majority of 43 votes, but it was conceded that if all the 
 votes cast for contestant had been counted he would have received a 
 large majority. Contestant asked that these votes be counted, and also 
 that the returns of certain precincts be rejected for fraud, and only 
 votes proved alivnde counted. Contestee claimed that all the ballots 
 which were rejected were properly rejected, and that many more 
 should have been rejected; that very many votes were cast for con- 
 testant by unregistered or otherwise disqualified persons; and that 
 fraud had been committed in some precincts in the interest of con- 
 testant. 
 
 The rejected ballots were ballots containing the names of the presi- 
 dential electors arranged with the heading "State at large," followed 
 by 2 names, and then the heading "District electors," followed by 8 
 names, with the words "1st district," "2d district," etc., before the 
 names. The statute of Alabama provided: 
 
 The ballot must be a plain piece of white paper, without any figures, marks, 
 rulings, characters, or embellishments thereon, * * * on which must be written 
 or prmted, or partly written and partly printed, only the names of the persons for 
 whom the elector intends to vote, and must designate the office for which each per- 
 son so named is intended by him to be chosen; and any ballot otherwise than 
 HpHnriTipd is illeffal and must be reiected. 
 
366 DIGEST OF CONTESTED ELECTION CASES. 
 
 These ballots were thrown out by the election officers on the ground 
 that the figures 1st, 2d, etc., were such '■ '■figures'''' as were prohibited 
 by the law, and rendered the ballots illegal. This point was substan- 
 tially abandoned by contestee, and was overruled by the committee. 
 If any such literal construction of the statute was to be followed it 
 would be impossible to print or write a legal ballot, for "marks" or 
 "characters," in the literal sense, must be used in all writing and 
 printing. Contestee, however, objected to the ballots on the addi- 
 tional grounds that the heading "District electors" designated an 
 office unknown to the laws of Alabama, and that the word^ "1st 
 district," "2d district," etc., were in violation of the provision that 
 the ballots should contain only the names of the candidates and the 
 offices to -which they were to be chosen. These objections were not 
 mentioned in the majority report, but were answered by Mr. Ranney 
 in his "views" separately submitted. The castom in Alabama, 
 as in other States, had always been to select electors from each of 
 the districts, and two from the State at large, and there could be no 
 wrong in designating the districts on the ballot. The words "District 
 electors" might not be a technically correct designation of the officers 
 to be elected, but it expressed the intention of the voters. Whatever 
 the effect of the incorrect designation might be on the votes for Presi- 
 dential electors, it was certainly not such extra printing on the ballots 
 as was prohibited by the statute, and the whole ballot could not be 
 thrown out. 
 
 In addition to these votes thei"e were three precincts where fiuud 
 was proved. In each of them all the officers were partisans , of con- 
 testee. The evidence of ticket distributors and others was introduced, 
 tending to show that very many more votes were cast for contestant 
 than were returned for him, and then the individual votere were called 
 and testified to their votes. There were also other indications of fraud, 
 and the committee therefore rejected the returns, and counted for con- 
 testant the votes proved by the testimony of the voters to have been 
 cast for him. This would give contestant a majority of 193 votes, 
 independent of the 6j1 rejected ballots. Contestee sought to establish 
 a majority for himself by having a lai'ge number of votes rejected. He 
 asked that all the ballots similar to the rejected ballots above described, 
 to the number of some 3,000, be rejected. This was overruled on the 
 same grounds as those given for counting the rejected ballots. He 
 also attacked many votes on the ground of nonresidence, minority, 
 conviction of crime, etc., but the committee found the proof insufficient 
 to sustain the charges. On the question of nonregistration the com- 
 mittee held that registration was not a necessary prerequisite for voting 
 in Alabama, and that the testimony by which contestee sought to estab- 
 lish nonregistration was in most cases insufficient to establish the fact. 
 The constitution of Alabama contained this provision: 
 
 The general assembly may, when necessary, provide by law for the registration of 
 electors throughout the State, or in any incorporated city or town thereof, and when 
 it is so provided no person shall vote at any election unless he shall have registered as 
 required by law. 
 
 The majority of the committee held that the words "when it is so 
 provided" meant that when the legislature should provide that a non- 
 registered person should not vote, he should not vote. There was no 
 such provision in the registry law. The minority held that the words 
 referred to "registration," and that the meaning was that when the 
 
FORTY-SEVENTH C0NGBES8. 367 
 
 legislature should have provided for registration, no person should 
 vote who was not registered. 
 
 The committee, under the findings above outlined, found that con- 
 testant had a majority of 847 votes and recommended that he be seated. 
 
 Mr. Ranney, who agreed to the conclusions of the majority, sub- 
 mitted a separate report. He agreed with the majority on the 
 question of rejected votes and, as above noted, argued the question 
 somewhat more fully than the majority. On the question of registra- 
 tion, while the matter was not free from doubt, he was inclined to 
 agree with the minority that registration was a necessarj^ prerequisite 
 for voting. But there was no satisfactory evidence that any voters 
 voted who were not registered. The evidence consisted of certified 
 copies of the poll lists and what purported to be copies of registrj' 
 lists on file with the probate judges. Witnesses were examined who 
 had compared the lists, and filed lists of names which they said were 
 found on the poll lists and not on the registry lists. These witnesses 
 testified very recklessly and an examination of the lists showed that 
 very many of the persons they claimed not to have found were regis- 
 tered, but the names were spelled in a- slightly different way. The 
 copies of the registrj' lists in evidence, however, were very imper- 
 fect. It was only necessary to be registered once, and nonregistra- 
 tion could only be shown by copies of all the lists made since 1875, 
 including the lists made by the registrar on the day of election at the 
 
 i)olls. The copies presented were not certified to include all these 
 ists and in many cases it was evident they did not. Re-registration 
 was not imperative when a voter moved from one precinct to another, 
 so that even if the voters were not registered at the poll where they 
 voted they might be legal voters. Some of the lists had been lost, 
 all of them were on loose sheets of paper, instead of a book as required 
 by law, and many of them were lacking in proper headings. All of 
 the copies in evidence lacked the required certification of the election 
 officers and, as above mentioned, they were very imperfectly certified 
 by the probate judges. 
 
 Mr. Ranney therefore agreed in the conclusion that contestant was 
 elected. 
 
 The minority held that contestee was elected by a large majority. 
 They disagreed with the Tnajority in their findings in I'egard to many 
 of the minor issues, and pointed out at very great length the incon- 
 sistencies and inaccuracies of the majoritj' report. There were 3,028 
 ballots cast for contestant which ought to be rejected because of the 
 illegal designation of electors as "district electors," and because of the 
 words "First district," "Second district," etc., which were additional 
 to the names of the persons voted for and the offices to which they 
 were to be chosen. The law of Alabama expressly required the electors 
 to be elected by general ticket, so that there was no such officer as a 
 "district elector" either in strict law or in fact. The law of Alabama 
 was unique in requiring ballots to contain nothing but the names of the 
 candidates and offices, and in requiring all ballots differently printed to 
 be rejected, and the words "First district," etc., were therefore fatal 
 to the ballot in Alabama, though in no other State. There were 1,294 
 of these ballots which wei-e illegal for the further reason that the 
 name of contestant was printed on them in very large bold type, which 
 could be easily read through the back of the ticket. This was a dis- 
 tinguishing mark within the meaning of the law, and it appeared that 
 
368 DIGEST OF CONTESTED ELECTION CASES. 
 
 it was in fact used as such for the purpose of intimidating voters and 
 depriving them of a secret ballot. All of these ballots should be 
 rejected and also the ballots of all the unregistered voters. It was 
 proved that at least 1,000 of the unregistered voters voted for con- 
 testant. These should first be deducted from his votes, and then the 
 remainder deducted from the candidates pro rata, according to the 
 rule laid down by McCrary. 
 
 The proof of fraud in regard to the three precincts where fraud 
 was charged to have been committed in the interest of contestee was 
 wholly insufficient, and most of the evidence was inadmissible because 
 not certified by the magistrate and not reduced to writing in his pres- 
 ence. There were two precincts where fraud was plainly shown to 
 have been committed in the interest of contestant, and the minority 
 rejected these precincts. There were also the votes of nonresidents, 
 minors, convicts, etc., to be rejected. Rejecting all these votes con- 
 testee had a majority of 2,841 votes, and the minority recommended 
 that he retain the seat. 
 
 The House, by a vote of 148 to 3 (140 not voting), adopted the reso- 
 lutions presented by the majority, and contestant was seated. 
 
 [2 Ells., 61-163.]" 
 
 (5) WiTHEESPOON V8. DavIDSON. 
 
 Case dismissed for want of prosecution. 
 
 Report by Mr. Ranney. 
 
 There was no notice of contest, answer, or testimony before the 
 committee in a regular way. Contestant made affidavit that he had 
 employed an attorney to conduct the contest, but that the attorney 
 had betrayed his trust, and refused to deliver to contestant or to the 
 committee the notice of contest or the answer. He further alleged 
 that he had not taken testimony because of a condition of intimidation 
 in the district which rendered it unsafe for witnesses to testify. Con- 
 testee denied all these charges and furnished the committee with 
 copies of the notice of contest and answer. The notice was too vague 
 to be good, but there was a "replication" which was more specific. 
 
 The committee were of the opinion that the failure of contestant to 
 prosecute his case was due to the causes alleged, but could see no way 
 of investigating the case further unless the House chose to institute an 
 independent investigation. 
 
 Contestant was permitted to withdra^v his papers without prejudice. 
 
 [2 Ells., 163-171.] 
 
 (6) BiSBEE VS. FiNLEY. 
 
 Fraud; hallot-hox stuffing j illegal votes ; irregularities. Majority 
 report for contestant ; minority report for contestee. Coritestant seated. 
 
 Majority report by Mr. Ranney ; minority report by Mr. Beltzhoover. 
 
 According to the returns as certified to the secretary of state, con- 
 testee received a majority of 1,152 votes. Contestant sought to over- 
 come this majority by having counted for himself votes which were 
 offered for him by legal voters and illegally rejected; by having 
 deducted from contestee the votes of a number of foreign-born electors 
 
FORTY-SEVENTH CONGBESS. 369 
 
 who did not present their naturalization papers when they voted, and 
 by having the votes of a number of precincts rejected for fraud and 
 only the votes proved aliunde counted, or, where it was possible, 
 correcting the returns. 
 
 The committee added to the vote of contestant the votes illegally 
 rejected, and deducted from contestee the votes of foreign-born per- 
 sons received without the presentation of naturalization papers. On 
 this point the committee said: 
 
 It is a fundamental principle as firmly established, as any rule of law that votes 
 must be cast as the law directs, and if the law requires the voter to produce certain 
 specified evidence of that right before he can cast his vote, and he fails to produce 
 that evidence, such vote, if cast, is illegal and void. * * * The principle must 
 likewise be maintained that the production of this evidence at the trial will not 
 change the legal status of the voter and thus make these votes in question legal 
 votes. Such a decision would be at variance with the well-established principle of 
 law which forbids the making of an act valid at a subsequent period which at the 
 time of its commission was void because prohibited by law. * * * The principle 
 is self-evident. Voting is a single act commanded to be performed within a particular 
 time, on a particular day, and in conformity with law; there can not, therefore, be 
 a valid performance of the requirements of the law at a period subsequent to the day 
 on which alone the law commanded the act to be performed. The question at issue 
 is not whether such evidence as required by law to establish their right to vote could 
 have been furnished, but whether such evidence was furnished. If they did not pro- 
 duce it, the supreme law prohibited their voting, and an act prohibited by law can 
 not be valid. 
 
 In Alachua County the returns of three precincts were shown to be 
 fraudulent. In each of these precincts there were irregularities and 
 violations of the law, in one case sufficient of themselves to cast strong 
 suspicion on the returns. In each precinct, also, very many more voters 
 testified that they voted for contestant than were returned for him. 
 The committee rejected the returns and counted the votes proved 
 aliunde. 
 
 In Madison County contestant charged that the ballot boxes were 
 systematically stuffed, thereby creating an excess of ballots in the 
 boxes. This excess was drawn out, under the Florida law, before the 
 votes were counted, and as the Republican and Democratic tickets 
 could easily be distinguished by the touch, substantially all the ballots 
 drawn out were Republican ballots, while the ballots fraudulent^ 
 placed in the boxes were Democratic ballots. Contestant proved these 
 facts, and also the number of votes drawn out in each poll. He also 
 attempted to call the individual voters as witnesses to prove his own 
 vote, but on the first day he began taking this sort of testimony a riot 
 was started by the friends of contestee, and one voter was killed. The 
 officer before whom the testimony was being taken and the attorneys 
 for contestant were cqmpelled to flee for their lives, and though 
 contestant made several attempts to get the testimony taken, the con- 
 dition of affairs was such that it was impossible. Under these cir- 
 cumstances the committee did not reject the returns, but corrected 
 them as well as possible. Deducting from contestee the excessive bal- 
 lots evidently stuffed into the boxes for him, and adding to contestant 
 the ballots of which he was deprived in drawing out the ballots, the 
 majority of contestant in the county was increased from 108 to 436. 
 
 Under the laws of Florida no person "not duly registered according 
 to law " had a right to vote. In Brevard County there was no legal 
 registration. In some of the precincts there was nothing purporting 
 to be a registry, and in other precincts there were only certain irregular 
 
 H. Doc. 510 24 
 
370 DIGEST OF CONTESTED ELECTION CASES. 
 
 lists on loose sheets of paper instead of in a "well-bound book," as 
 required by law. The committee rejected the whole vote of this 
 county. 
 
 A return in Hamilton County was rejected because the supporters 
 of contestee furnished the colored voters with drink, and then forced 
 them while intoxicated to vote for contestee; because of rioting at the 
 polls which the United States marshal could not stop, and because of 
 the fraudulent reception of known illegal votes by the election officers. 
 A return in Orange County was rejected because not signed. Charges 
 of fraud were made against certain other precincts, but the coimnittee 
 found the evidence inconclusive. Counting the votes according to the 
 findings above indicated contestant had a majority of 645 votes. 
 
 A portion of the testimony of contestant was taken after the expira- 
 tion of the first forty days, aJnd some that was taken during the ten 
 days allowed for rebuttal was claimed not to be rebuttal testimony. 
 The committee found that contestant had begun taking certain testi- 
 mony a reasonable time before the expiration of his time, but had been 
 prevented from finishing it by long cross-examinations on the part of 
 contestee, evidently made for the purpose of delay. After the forty 
 days had expired contestant continued to take the testimony until it 
 was finished. Contestee could have cross-examined it, he had ample 
 opportunity to contradict it, and the taking of his own testimony was 
 not interfered with because he did not commence taking testimony 
 until some time after contestant had ceased. The committee consid- 
 ered all this testimony. 
 
 The minority reported for contestee. The irregularities at the 
 three polls complained of in Alachua County were not sufficient to 
 vitiate the returns or show fraud, and the testimony of the individual 
 voters was unsatisfactory on account of their ignorance. They did 
 not know for whom they had voted, and if they did they might not be 
 willing to testify that they had not voted their regular party ticket. 
 The weight of the evidence showed that there was a registration in 
 Brevard County, and that the lists were delivered to the election offi- 
 cers in all the polls but one. There was not sufficient evidence to 
 justify counting the 122 votes alleged to have been illegally rejected 
 in Marion County. 
 
 It is very plain tliat, having been rejected, under the law they can not be counted 
 unless each voter has adduced in the contest the satae proof in every respect which 
 would have entitled him to vote at the polls on the day of election. 
 
 This had not been done. The charges made against Nassau and 
 Bradford counties were different from th(Jse included in the notice of 
 contest, and could not be considered. In Orange County there appeared 
 to have been no notices to take testimony served on contestee, and the 
 testimony could not therefore be considered. In Madison County the 
 charge that two precincts had been unlawfully rejected by the can- 
 vassers could not be considered, because not ma^ie in the notice of con- 
 test. The strange proposition of contestant to "correct" the alleged 
 fraudulent returns of this county could not be seriously considered. 
 If the returns were fraudulent, they were not evidence of anything, 
 and must be rejected, which would increase the majority of contestee; 
 if they were not fraudulent, they should be counted as made. The 
 foreign- born voters who did not "produce their naturalization certifi- 
 cates at the polls must be presumed to have been, nevertheless, legal 
 voters, and under the rule adopted by the House in the case of Curtin 
 
FORTY-SEVENTH CONGRESS. 37 1 
 
 VS. Yocum these votes could not be rejected without proof of actual 
 disqualification. All the testimony taken by contesfaint during the 
 contestee's time, or taken in rebuttal in counties where contestee had 
 taken no testimony and where there was consequently nothing to 
 rebut, ought to be rejected; but the minority had examined most of it 
 and found that if considered it would not alter the I'esult. 
 
 The minority found that, conceding to contestant everything that in 
 any possible view of the case could be claimed for him, contestee had 
 still a majority of at least 316 votes, and they recommended that he 
 retain the seat. 
 
 The House, by a vote of 1-11 to 9 (141 not voting), adopted the reso- 
 lutions presented by the majority, and Mr. Bisbee was sworn in. 
 
 [2 EUis, 172-243.] 
 
 (7) Cook vs. Cutts. 
 
 Illegal votes. Majority report for contestant; minority report for 
 contestee. Contestant seated. 
 
 Majority report bj' Mr. Beltzhoover; first minority report by Mr. 
 Thompson; second minority report by Mr. Ranney. 
 
 According to the returns as canvassed contestee had a majority of 
 101 votes, but there were two precincts rejected by a county canvass- 
 ing board which should have been counted. This would reduce the 
 majority of contestee to 9 votes. • 
 
 Each party charged a number of miscellaneous illegal votes, and the 
 reports contain detailed discussions of the evidence in regard to them, 
 but the principal issue, and the one on which the case turned, was the 
 charge tnat 23 -illegal votes were cast for contestee by colored laborers 
 in the Muchikinock coal mines who had not been in the State six 
 months. It appears that these coal mines had been newly opened, and 
 that large numbers of negro laborers had been imported from Virginia 
 to work them. These laborers came in several parties, the first com- 
 ing in March and the last in October, 1880. The chief controversy 
 was in regard to the date of the arrival of the third party, known as 
 the "May party." Contestant claimed that it arrived May 15, con- 
 testee that it arrived May 1. If the date was later than May 1, those 
 who came in it would not have acquired the six months residence nec- 
 essary to give them the right to vote. From the evidence of the man 
 who went to Virginia after these laborers, corroborated by the dates 
 of letters written by him, and the testimony of railway officials, the 
 committee found it to be conclusively shown that this party arrived 
 May 15. There were several men who were shown bj'^ the poll boeks 
 to have voted, and who must have come with the May party. Major 
 Shumate, the man who brought them from Virginia, testified to this 
 fact, and on the coal mine roster or pay roll the names of these men 
 appeared for the first time in the accounts for the month of May. A 
 number of others, making, with those of the May party, 23 in all, were 
 shown to have come with parties later than the May party. An 
 attempt was made to prove for whom these voters voted by their own 
 testimony, but most or them could not be found (the coal mines having 
 closed) and those who were found refused to testify on this point. But 
 it was shown by circumstantial evidence that they were Republicans. 
 They were brought to the polls m wagons , furnished and driven by 
 Republicans; they were shouting for contestee; they were given Repub- 
 
372 DIGEST OF CONTESTED ELECTION CASES. 
 
 lican tickets by Republicans, and went immediately to the polls and 
 voted. The committee therefore deducted all their votes from con- 
 testee, which gave contestant a majority. This majority would be 
 increased by the decision of the other questions in the case, and the 
 committee therefore recommended resolutions declaring contestant 
 entitled to the seat. 
 
 A minority of the committee reported for contestee. The evidence 
 of Major Shumate was very unsatisfactory. He was impeached by a 
 large number of witnesses, and his testimony was based on his memory 
 alone. His cross-examination showed that he did not have a remark- 
 able memory, and yet no one could have truthfully testified to remem- 
 bering so many facts in regard to so many diiferent persons, with 
 whom he had no intimate acquaintance, without a most phenomena] 
 memory. The roster of the coal company was so kept as not to be 
 satisfactory evidence. It contained no dates, and Shumate himself 
 testified that he could use it only "by association." Instances were 
 shown in which the names of persons who came with the earlier par- 
 ties appeared in the book after those of persons who came with the 
 later parties. 
 
 It was probable from all the testimony that a pai-ty came on May 
 15, but a number of persons, said to have come with the ]\Iay party, 
 testified positively that they came on May 1, fixing the date-in each 
 case by some circumstance of known date, and they were corroborated 
 by a number of disinterested witnesses. There were also othei' cir- 
 cumstances creating a direct conflict of testimony which could only be 
 reconciled by the assumption that there were two May parties, one of 
 which came on May 1. But all the voters objected to as belonging to 
 the May party might be held to have voted illegally and their votes 
 be deducted from contestee (though the evidence, that the^' voted for 
 him was fai' from satisfactory) without overcoming his majority. The 
 only evidence in regard to the remainder of the twenty -three, who were 
 claimed to have come after May 16, was the uncorroborated testimony 
 of Shumate, and this, for the reasons indicated abo\-e. was insuflicient. 
 
 The minority held that the majority of contestee would be increased 
 by the deduction of the miscellaneous illegal votes not included in the 
 above class, and recommended resolutions declaring contestee elected. 
 
 Mr. Ranney agreed with the minority and discussed the same points 
 somewhat more elaborately. His arguments, so far as necessary, are 
 included in the above account. 
 
 The House, by a vote of 154 to 81, adopted the resolutions presented 
 by the majority and contestant was sworn in. 
 
 [2 Ells., 243-283.] 
 
 (8) SiMiTH (w. Robertson. 
 Case dismissed. 
 
 This case was dismissed because of the failure of contestant to take 
 testimony and prosecute his case accoitling to law. 
 [2 Ells., 284.] 
 
 (9) Anderson vx. Reed. 
 
 Bribery; illegal votes. Report for contestee; contestee retained the 
 
 Report by Mr. Hazelton. 
 
 Contestee had a majority of 123 votes. There was evidence that 
 one man was bribed to vote the Republican ticket, and some evidence 
 
FOKTY-8EVENTH CONGRESS. 373 
 
 tending- to show that six others were bribed, but "no suggestion or 
 intimation is made of any complicity, or even knowledge, on the part 
 of the sitting member." Votes were alleged to have been received 
 for contestee which should have been rejected and rejected for contest- 
 ant which should have been received, but the evidence in regard to 
 these was conflicting. Each of these cases had been passed on by the 
 selectmen of the towns, who had much better opportunity than the 
 committee to know all the facts, and the committee did not feel 
 authorized to reverse their decision upon merely conflicting testimony. 
 There was also some testimony in regard to vague rumors that " men 
 would lose their jobs" if they did not vote as their superiors wished, 
 but the conamittee found that such reports ' ' hardly constitute such an 
 overthrow of men's wills and determinations as can be taken notice of 
 by the law." 
 
 The committee unanimously reported in favor of contestee, and the 
 House agreed without division. 
 
 [2 Ells., 284^286.] 
 
 (10) Buchanan vs. Manning. 
 
 Fromd; intimidation; illegal rejection of votes; conspiracy. 
 Majority report for contestee; minority report to vacate seat. Con- 
 testee retained the seat. 
 
 Majority report by Mr. Calkins; minority report by Mr. Thompson. 
 
 According to the returns contestee had a pliirality of 5,259 votes. 
 Contestant charged a general conspiracy to carry the election by fraud, 
 and that, as a result of this conspiracy, the Republican party Was 
 refused representation on election and canvassing boards, or illiterate 
 Republicans were appointed in pretended compliance with the law; 
 polling places were removed to remote and inaccessible places without 
 notice; qualified voters were refused registration, or, being registered, 
 were refused the right to vote; United States supervisors were 
 excluded from the polls; ballot boxes were stuffed, and voters were 
 intimidated by threats and violence. All these allegations were very 
 vaguely and generally made in the notice of contest, there being no 
 specification of the particular precincts where the frauds occurred, of 
 the number of votes affected, or the persons by whom the frauds were 
 committed, or any allegation that the result of the whole election was 
 changed by these frauds. The committee found that all the allega- 
 tions were clearly insufficient under the law. 
 
 We prefer, however, not to rest our decision of this case upon the sufficiency of 
 the pleadings, for if the testimony taken in the case develops the fact that the sit- 
 ting member was not elected, it would be our duty to so report, although the con- 
 testant might not be entitled to his seat, having failed to comply with the law with 
 respect to the sufficiency of his notice. 
 
 The committee gave an abstract of the testimony of the United States 
 supervisors in the various precincts, showing instances of all the 
 classes of wrong complained of. These supervisors, from their posi- 
 tions, must have known and been able to testify to all the frauds 
 committed. Whenever it appeared that the supervisors were excluded 
 from the polls or the count, or that the ballot box was stuffed, or 
 violence and intimidation resorted to to control the election, the com- 
 mittee rejected the polls. Eight boxes were thus rejected, making a 
 net reduction of about 500 votes in the majority of contestee. It was 
 charged that these frauds were parts of a general conspiracy, but the 
 
374 DIGEST OF CONTESTED ELECTION CASES. 
 
 committee found the evident'O too vague and inferential to establish 
 this fact. 
 
 Your committee have not hesitated to recommend to the House the throwing out 
 of all the boxes where frauds, intimidation, or ballot-box stuffing have been proven, 
 but it would be unsafe to assume from the testimony in this case that other frauds 
 had been committed by the election officers, not specifically shown or proven in any 
 tangible or definite manner. 
 
 It was evident that contestant had been deprived of votes by the 
 arbitrary refusal of registry to qualified voters and by the unauthorized 
 changes of polling places just before the election, but there was no 
 specific evidence on which deductions could be made. The appoint- 
 ment of illiterate persons to represent contestant's party was strongly 
 condemned, and if it were not for the counteracting efiect of the United 
 States supervisors law the committee would have been inclined to 
 apply some corrective. The refusal of representation on the various 
 boards to contestant's party might be a fact forming a link in a chain 
 of evidence to show conspiracy, but the evidence in this case did not 
 establish such a conspiracy. 
 
 The majority (Messrs. Calkins, Hazelton, Wait, Miller, Beltzhoover, 
 Alberton, Moulton, and Davis) finding that contestee's returned 
 majority was not overcome by the evidence, recommended that "con- 
 testant have leave to withdraw his papers without prejudice." 
 
 A minority favored declaring the election void. (The minority 
 report was signed by the remaining 7 members of the committee. 
 When the case was voted on in the committee a majority of the mem- 
 bers present voted for _the resolution to declare the seat vacant, but 
 a majority of the whole coojmittee signed the report for contestee.) 
 
 The conclusions of the minority were largely based on the proof of 
 conspiracy. It was shown by the census that there was a majority of 
 some 2,600 colored voters in the district. At this election the colored 
 voters were practically' solid for contestant, Avhile the white voters 
 were divided between contestee and the Greenback candidkte. The 
 party of contestee was in a minority in the district of some 5,000 
 or 6,000 votes. The fact that under such circumstances contestee was 
 returned as receiving a majority of 5,259 votes "at once throws suspi- 
 cion on the fairness of the count, and when the whole of the election 
 machinery was in the hands of contestee's friends the burden of show- 
 ing the fairness of the count should be upon him when a reasonable 
 doubt of fairness has been established by the proof." 
 
 On the evidence in this case the minority found the following indi- 
 cations of fraudulent conspiracy: 
 
 (1) The action of the governor and State board; their refusal tb allow the opposi- 
 tion party to name any of the election commissioners; (2) the same action on the 
 part of the county commissioners in appointing the precinct inspectors; (3) the' 
 appointment of corrupt and illiterate officers; (4) the systematic adjournments of 
 the election without sufficient cause; (5) the premature closing of the registration 
 books and refusal to register Republican voters, the erasing of names of Republican 
 voters already registered, and the forgery of poll books; (6) the failure to opmLy 
 count the vote at the closing of the polls; (7) the changing of polling places; (8) 
 the abandonment of ballot boxes during adjournment, and of their carrying oft to 
 private houses during adjournment; the interference with and exclusion of United 
 States supervisors; (9) the fact that these practices were in counties having large 
 Republican majorities are conclusive evidence of a conspiracy to defraud. 
 
 The specific proof of fraud or suspicious circumstances in the con- 
 duct or appointment of election officers required the rejection of 
 the votes of thirty-four precincts, casting an aggregate vote of 11,715, 
 
FORTY-SEVENTH CONGRESS. 375 
 
 and there were strong reasons for the rejection of many other precincts 
 and one whole county. This was sufficient to set aside the election; 
 and — 
 
 there being a conspiracy to defraud, there being proof of fraud at a number of 
 precincts, and the illiterate inspectors leaving the door open to unlimited fraud, 
 and there being no proof by contestee of good faith in the election, it must be set 
 aside. 
 
 The minority therefore recommended resolutions declaring neither 
 party elected. 
 
 The House agreed without division to the resolution presented by 
 the majority, and contestee retained the seat. 
 
 [2 Ells., 287-338.] 
 
 (11) Lynch vs. Chalmers. 
 
 Fravd, irregularities, distvnguishvng ma/rJcs. Majority report for 
 contestant; minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Calkins; minority report by Mr. Atherton. 
 
 Contestant received a majority of the votes cast, but contestee 
 received a majority according to the returns of the county commis- 
 sioners. This difference was brought about by 'the action of the county 
 commissioners in throwing out a large number of precincts for various 
 irregularities and a large number of ballots cast in other precincts on 
 the ground that they were marked in violation of the statute. Con- 
 testant asked that all these votes be restored to him, and also attacked 
 a number of precincts for fraud. The committee found fraud in one 
 precinct where its existence does not seem to have been seriously 
 denied, but otherwise the case was decided without reference to the 
 charges of fraud. 
 
 There had been some preliminary proceedings in the courts of Mis- 
 sissippi affecting this case. The district attorney of Tunica County 
 applied to the circuit court of that county for a writ of mamdarhus to 
 compel the election commissioners to reassemble and reject 506 ballots 
 which had been counted for contestant, and which were claimed to 
 have contained illegal distinguishing marks. The marks complained 
 of on these ballots, and all the other ballots in question in this case, 
 were printer's dashes (made thus: o , or thus: ), separa- 
 ting the names of the candidates for President and Vice-President 
 from those of the candidates for Presidential electors, and these from 
 the name of the candidate for Congress. The supreme court of the 
 State, on appeal from the circuit court, refused to grant the writ of 
 mandamus, on the ground that the election commissioners were func- 
 tus officio and could not be compelled to reassemble, but also decided 
 that the election commissioners had authority to reject illegal ballots, 
 and that the ballots in question were illegal. If this should be taken 
 as a decision of the question binding on Congress it would be decisive 
 of the case in favor of contestee, as a majority could not be shown 
 for contestant without counting these ballots. It was strongly con- 
 tended that a decision of the supreme court of a State, construing a 
 State statute, was binding on Congress, but the committee held that 
 this was too broad an assertion. The committee discussed this ques- 
 tion as follows: 
 
 " It is true that where a decision or line of decisions has been made by the judici- 
 ary of the States, and those decisions have become a ' rule of property,' the Federal 
 judiciary will follow them. Not to do so would continually place' titles to property 
 
376 DIGEST OF CONTESTED ELECTION OASES. 
 
 in jeopardy, and disturb all business transactions. * * * There is still another 
 reason why Congress should not be bound by the decisions of State tribunals with 
 regard to election laws, unless such decisions are founded upon sound principles, and 
 comport with reason and justice, which does not apply to the Federal judiciary, and 
 it is this: Every State election law is by the Constitution made a Federal law where 
 Congress has failed to enact laws on the subject, and is adopted by Congress for the 
 purpose of the election of its own members. To say that Congress shall be absolutely 
 bound by State adjudications on the subject of the election of its own members is 
 subversive of the constitutional provision that each House shall be the judge of the 
 election, qualifications, and returns of its own members, and is likewise inimical to 
 the soundest principles of national unity. We can not safely say that it is simply the 
 duty of this House to register the decrees of State officials relative to the election of 
 its own members. The foundation of this contention is that if the Congress of the 
 United States fails to enact election laws, and makes use of State laws for its pur- 
 poses, it adopts not only the laws thus enacted but the judicial construction of them 
 by the State courts as well. We do not agree that this is the rule except as it may 
 apply to a 'positive statute of the State, and the construction thereof, adopted by 
 the local tribunals, and to rights and titles to things having a perm^ment locality, 
 such as the rights and titles to real estate, and other matters immovable and intra- 
 territorial in their nature and character.' (Swift to. Tyson, 16 Peters, 1-18.) As to 
 matters not local in their nature, the Supreme Court of the United States has uni- 
 formly held that the decisions of the State courts were not binding upon it. 
 
 Election laws are, or may become, vital to the existence and stability of the House 
 of Representatives, and to hold it must shut itself up in the narrow limits of investi- 
 gating solely the question as to whether an election has been conducted according to 
 State laws as interpreted by its own judiciary would be to yield at least a part of that 
 prerogative conferred by the Constitution exclusively on the House itself. 
 
 It may be stated generally that the House of Eepresentatives will, as a general rule, 
 follow the interpretation given to a State law regulating a Congressional election by 
 the supreme court of a State, where decisions have been continued and uniform in 
 such a way and for such time as to become the fixed and settled law of a State. The 
 processes of determining the election and all questions relating to the honesty and 
 bona fides of ascertaining who received the highest number of legal votes must of 
 necessity forever reside exclusively in the House. 
 
 Where decisions have been made for a sufficient length of time by State tribunals 
 construing election laws so that it may be presumed that the people of the State knew 
 what such interpretations were would furnish another good reason why Congress 
 should adopt them in Congressional election cases. But this reason would be of little 
 weight when the election had been held in good faith before such judicial construc- 
 tion had been made, and where there was a conflict of opinion respecting the true 
 interpretation of a statute for the first time on trial. * * * 
 
 It need, however, hardly be added that a line of carefully considered cases in the 
 States, in which such courts have undoubted jurisdiction, so far as they would apply 
 in principle, would go a long way toward settling a disputed point of construction in 
 any State election law. In fact, it may be said that it would probably be the duty 
 of Congress to follow the settled doctrine thus established. 
 
 Still another reason why the House should feel free to disregard this 
 decision was that on the points at issue before the House it was, stricth" 
 speaking, a mere obi'te?- dictum. These points were not necessarily 
 involved in the decision of the case, and the court expressly disclaimed 
 jurisdiction of them. The whole case could have been decided upon 
 the ground that the election commissioners were functus officio, and 
 the decision was in fact controlled by this point. The other points 
 were decided at the request of the Attorney-General, and because he 
 stated that they were of public importance. 
 
 In this case the committee felt compelled to disagree with the court. 
 The marks alleged to be distinguishing marks were mere printers' 
 dashes, such as are known among printers' and given in Webster's 
 Dictionary as punctuation marks. The statute of which they were 
 claimed to be in violation was: 
 
 All ballots shall be * * * without any device or mark by which one ticket 
 may be known or distinguished from another, except the words at the head of the 
 ticket; * * * and a ticket different from that herein prescribed shall not be 
 received or counted. 
 
FORTY-SEVENTH CONGRESS. 377 
 
 Under such a statute it might be that printers' dashes or other 
 punctuation marks, or even the type in the body of the ticket or the 
 arrangement of the words at the head, could be used as "marks or 
 devices," but the extreme limit to which the law could be applied in 
 such cases would be to inquire — 
 
 In the U8e of these appliances, which are ordinarily used in printing, were they so 
 arranged as that they became "marks and devices," and were they ho used and 
 arranged for that purpose? And, secondly, was the unusual manner of their being 
 used such as might or ought to put a reasonably prudent man on his guard? 
 
 No case which the committee could find went even so far as this. 
 In this case the committee found, as a matter of fact, that these dashes 
 were not intended or used for the purpose of distinguishing the ballots; 
 that contestant had been assured that bis tickets would be printed in 
 entire compliance with the law, and that these dashes were not noticed 
 until the da}' of the election, after the tickets were distributed, and 
 then it was strenuously contended that the ballots were legal. Similar 
 ballots had been used bj' the opposite party in other parts of the State 
 without complaint. 
 
 The committee restored to the vote of contestant all the ballots 
 which had been thrown out on this ground. They also added to the 
 votes of both parties the votes cast at a number of rejected polls, 
 where the irregularities were immaterial or cured by evidence. This 
 included two precincts in Bolivar and three in Issaquena County, which 
 will be further noticed in connection with the minority report. Adding 
 all these votes and counting the vote of one precinct where fraud was 
 proved according to th'e proof instead of according to the returns, con- 
 testant was shown to have a majority of 385 votes, and the committee 
 recommended that he be seated. There were other issues in the case 
 which, if decided for contestant, would largely increase his majority, 
 and some of the committee seem to have agreed with contestant on 
 these points, but they were not decided by the committee. All the 
 members of the committee signing the majority report (all the mem- 
 bers of the committee but three) agreed on all the points above outlined. 
 
 A minority of the committee (Messrs. Atherton, Moulton, and Davis) 
 reported for contestee. The count of votes as made by the majority 
 included at least three untenable decisions, the reversal of any one of 
 which would give the majority to contestee. The majority counted 
 three rejected precincts in Issaquena County on the certificate of the 
 election commissioners as to the number of votes shown by the rejected 
 returns, and the certificate of the chancer}^ clerk of the county to a 
 copy of the original precinct returns in his office. The certificate of 
 the commissioners alone was not claimed to be evidence of the vote, 
 and the certificate of the clerk of the chancery court certainly was not, 
 for no law could be found requiring these returns to be preserved as 
 records in his office or anywhere else. The fact that these two certifi- 
 cates agreed as to the vote could give them no validity or force not pos- 
 sessed by each one separately. In Bolivar County two precincts were 
 lejected by the commissioners because the returns were not certified. 
 This was a sufficient ground for their rejection, and it was not cured 
 by any evidence. The mere fact that the county commissioners cer- 
 tified to the I'ejection of these precincts and stated in their certificate 
 the number of votes shown for each party by the rejected returns did 
 not cure the defect. 
 
 If these precincts were not included, contestant's claimed majority 
 of 385 votes would disappear, and contestee would have a majority of 
 
378 DIGEST OF CONTESTED ELECTION CASES. 
 
 696 votes. But the niinoritj' claimed also that all the marked ballots 
 were properl}'' rejected, and if thej^ were not counted contestee had a 
 large majority without reference to any other question. The decision 
 of the supreme court of Mississippi construing the election law of the 
 State was, under all the decisions of the United States Supreme Court 
 and of the Committee on Elections, binding on the House. The court 
 clearly had jurisdiction of the case in which the decision was rendered, 
 and its opinion on the point in issue in this case was not in any sense 
 obiter dictum. 
 
 An oh'der dictum is an expression of opinion by way of argument or illustration, 
 and rendered without due consideration as to ita full bearing and effect. 
 
 This was nothing of the sort. The questions presented to the court 
 for decision were three: (1) Have the election commissioners authority 
 to reject illegal ballots? (2) Were these ballots illegal? (3) Can the 
 commissioners be reconvened for the purpose of rejecting them? A 
 negative decision of the first question would have rendered unneces- 
 sary any decision of the other two. The first and second questions 
 being decided in the affirmative, a decision of the third question was 
 necessary, and it being decided in the negative the decision of the first 
 two questions was no longer material, but if it had been decided in the 
 affirmative a decision of them would have been very material. Under 
 such a state of facts it would be impossible to say that the opinion of 
 the court on any of the three issues presented was in any sense obiter 
 dictum. 
 
 The minority quoted numerous precedents to show that decisions 
 of State courts or. the construction of State statutes had always been 
 held to be binding on Congress, and also numerous authorities to show 
 that the decision of the supreme court of Mississippi was right in 
 principle. The minority recommended resolutions declaring contestee 
 elected. The House, by a vote of 124 to 84, agreed to the resolutions 
 presented by the majority, and contestant was sworn in. 
 
 [2 Ells., 338-380.] 
 
 (12) Sessinghaus va. Fkost. 
 
 Illegal striking of names from registry list and rejection of votes. 
 Majority report for contestant; minority report for contestee. Con- 
 testant seated. 
 
 Majority report by Mr. Miller; minority report by Mr. Moulton. 
 
 According to the returns contestee had a plurality of 197 votes. 
 Contestant claimed that he was deprived of more than "that number of 
 votes by the illegal action of registration and election officers, and 
 especially of the board of revision of the city of St. Louis. The case 
 involved the question both of the validity and construction of the 
 registration laws and of the manner of their execution. The committee 
 found that the registration law of St. Louis was invalid; that neither 
 it nor any State law made registration an imperative prerequisite or 
 qualificatio-n for voting, and that the action of the board of revision 
 was so unfair and fraudulent as to be void even if it had been author- 
 ized by law. Under the constitution of Missouri the legislature was 
 to provide for registration in all cities of over 100,000 inhabitants and 
 might provide for it in cities of over 25,000 inhabitants. The legisla- 
 ture was also to provide general laws for the organization and ctassi- 
 
FORTY-SEVENTH CONGRESS. 379 
 
 fication of cities and towns, and means whereby cities and towns exist- 
 ing under special charters might become subject to these general laws. 
 The legislature had passed laws providing for the organization of cities 
 of over 100,000 inhabitants, to be known as cities of the first class, 
 and providing a method by which such cities might bring themselves 
 under these laws. The city of St. Louis had not chosen to take advan- 
 tage of these provisions and continued its old organization under a 
 special charter. The only registration law passed by the legislature 
 applicable to St. Louis was a statute providing that in cities of 100,000 
 inhabitants or over, no person should be deprived of the right of voting 
 by reason of having failed to register, but that all siich persons offer- 
 ing to vote should be registered on the day of election at the polls by 
 a special registering officer. The registration laws under which elec- 
 tions were held in the city of St. Louis were city ordinances passed by 
 the municipal assembly, and differed somewhat both from the charter 
 of the city and from the general law. The charter of the city, adopted 
 in pursuance of the constitution, provided for registration, but it had 
 never been ratified or in any way acted on by the legislature of the 
 State. Among the provisions of the ordinance was one providing for 
 a board of revision, who were to meet twenty days before each election 
 and sit for not exceeding ten days — 
 
 for the purpose of examining the registration and making and noting corrections 
 therein as may be rendered necessary by their knowledge of errors committed, or by 
 competent testimony heard before the board. * * * They shall strike from the 
 registration, by a majority vote, names of persons who have removed from the elec- 
 tion district for which they registered, or who have died, and shall note the fact 
 opposite the name of any person charged with having registered in a wrong name, or 
 who, for any reason, is not entitled to registration under the provisions of this ordi- 
 nance, which person shall be challenged by the judges of election when presenting 
 himself to vote, and rejected unless he satisfy said judges that he was entitled to reg- 
 ister. * * * Their proceedings shall be printed daily in the paper doing the 
 city printing. 
 
 The charter of the city did not make registration an essential pre- 
 requisite to voting, and if it had it would nave been unconstitutional 
 in that it would have provided an additional qualification for voting 
 not prescribed by the Constitution. But the ordinance instead of the 
 charter of the .city had been followed in the matter of the board of 
 revision, and the committee held that this ordinance was invalid. 
 
 The Constitution of the United States having declared that the legislatures of the 
 several States shall provide for choosing members of Congress, and the constitution 
 of Missouri having authorized the general assembly, and that alone, to enact a regis- 
 tration law, we hold that the above ordinance has no binding force or effect and is 
 invalid. 
 
 The quotations from the so-called "revised statutes" of Missouri, 
 made b}^ the minority, apparently ratifying and adopting the provi- 
 sions of this ordinance, were sections inserted by the committee 
 appointed by the legislature in 1879 to revise the statutes, and they had 
 not yet been ratified or approved by the legislature. 
 
 But even if the ordinance were valid it would be necessary to add to 
 the vote of contestant the votes of 155 persons who testified that they 
 were qualified electors and had been duly registered, and that they 
 offered to vote for contestant, but were refused because their names 
 were not on the list as revised. The manner in which the revision of 
 the registry was made was grossly unfair and in violation of the ordi- 
 nance. Instead of striking off names from their own knowledge or 
 
380 DIGEST OF CONTESTED ELECTION CASES. 
 
 testimony presented by a majority vote, the board of revision adopted 
 a resolution at the outset of their proceedings providing that — 
 
 When a member of the board of revision presents a hst of persons found on the 
 list furnished him by the recorder of voters with dead, removed, not found, vacant 
 house, duplicate, not a citizen, or any other word or phrase to indicate that the per- 
 son is not entitled to vote, his name being on the books of the recorder, the board 
 of revision shall take immediate action on such names and instruct the recorder of 
 voters to erase such names from the registered list of voters in his office. 
 
 Under this resolution the member from each ward made or had made 
 a list of persons claimed to be not entitled to registry, and the board, 
 without even reading the names, instructed the ei-asure of all such 
 names. In this way, in a session of one or two hours a day for eight 
 days, the board struck off over 12,000 names in a registration of about 
 60,000. Twenty-four of the 28 members of the board were Demo- 
 crats and many of them had their lists prepared by unsworn outsiders 
 sent out by the Democratic committee. One of these outsiders testi- 
 fied to fraudulent and partisan action in putting down the names onlj- 
 of known Republicans. Names were struck from the list not only on 
 the ground that the persons had died or removed, but also on the 
 grounds that they were not citizens or were for other reasons not enti- 
 tled to vote, though in these cases the ordinance merely provided that 
 the objections should be written after the names and the voters chal- 
 lenged by the officers of election and required to prove their right. 
 Under all these circumstances, the committee held that the whole action 
 of the board of revision was vitiated by both illegality and fraud. 
 Inasmuch as the judges of election had no discretion as to rejecting 
 the votes of persons whose names had been erased by the board of 
 revision, they were on this point not judges of election. The duties 
 of judges of election bad already been performed by the board of 
 revision, and as the 155 persons whose testimony was taken had been 
 in fact rejected by that board, and as they had done eAerything the 
 law required of them to entitle them to vote, the committee counted 
 their votes for contestant, for whom they offered to vote. 
 
 The committee also counted the votes of 35 persons who were regis- 
 tered but whose votes were rejected on various trivial grounds, of 8 
 persons who registered at the polls under the law but were not per- 
 mitted to vote, and of 86 persons who offered so to register but were 
 refused. Adding these and a few ballots thrown out for slight irreg- 
 ularities and correcting one small clerical error, contestant was shown 
 to have a majority of l'r2 votes, and the committee recommended that 
 he be seated. 
 
 The committee quoted some of the testimony in regard to the alleged 
 tampering with the testimony by one of the counsel for contestant and 
 found that there was " not the slightest ground for the allegation." 
 
 The minority reported for contestee. A motion had been made, and 
 should have been granted, to suppress all the testimonv of contestant 
 on the ground that it had been altered and tampered with by one of 
 his attorneys. From the evidence it appeared that the evidence had 
 been put into the hands of this attorney as fast as transcribed, and that 
 while gomg over it and gathering materials for his brief he had made 
 margmal suggestions in pencil, chiefly in regard to the spelling of 
 proper names. The stenographer testified that he had carefully com- 
 pared all the testimony with his notes just before forwarding" it and 
 had followed his notes rather than the marginal suggestions, except in 
 the matter of the spelling of proper names, on which he could not 
 
FORTY-SEVENTH CONGRESS. 381 
 
 trust his notes. In one case he found that the attorney had erased 
 some profane language which it had been expressly agreed should be 
 retained. The committee had wished to investigate this whole ques- 
 tion and had called the stenographer before it, but he testified that he 
 had destroyed his notes. The minority could attach no confidence to 
 the integrity of depositions which had been manipulated in this way, 
 and thought the motion to suppress should be granted. 
 
 Waiving this point, the minority could not see on what ground the 
 155 rejected votes could be counted. The charge that the board of 
 revision acted fraudulently was not sustained; on the contrary, it 
 appeared that its members were men of high character and integrity. 
 The proceedings of the board were not in violation of the law under 
 which they acted; their action in accepting the knowledge of any 
 member of the board as the knowledge of the board was only an appli- 
 cation of the familiar principle of the use of committees, and there 
 was nothing expressed or implied in the law prohibiting the members 
 of the board from securing assistants to aid in procuring information. 
 The testimony of the one witness relied on to show that these assist- 
 ants acted fraudulently broke down on cross-examination and was 
 plainly untrustworthy. The voters were given notice of the action of 
 the board by publication in a newspaper, and if injustice was done 
 they had their remedy. As a matter of fact, a large number of the 
 155 persons whose votes were counted by the majority had failed to 
 use due diligence in complying with the registration law; they had 
 moved and neglected to secure transfers until the day of the election, 
 when it was too late to register any person except those who had failed 
 to be registered in the first place. The only otner possible objection 
 to the acts of the board of revision was the claim that the law under 
 which they acted was invalid. This question had been separately and 
 fully argued before the committee, and the minority found that the 
 law was shown to be valid. The provisions of the general laws appli- 
 cable to cities of the first class, of the charter of the city of St. Louis, 
 and of the city ordinance were substantially alike. Under the charter 
 the city had the undoubted right to pass a registration law if it was 
 not in conflict with the State constitution or laws, which this clearly 
 was not. The action of the board of review in striking the names of 
 these 155 men, among others, from the registry was consequently of 
 full authority, and the remedy provided by the law not having been 
 availed of, it was too late to ask for another. The case as to the other 
 additional voters counted by the committee was still weaker, as nearly 
 all of them appeared from their own evidence to have neglected to 
 comply with some essential provision of the law, and the testimony 
 of some of them was not such as to attract confidence. 
 
 The minority therefore recommended that contestee retain the seat. 
 
 The House by a vote of 126 to 110 adopted the resolutions presented 
 by the majority, and contestant was sworn in. 
 
 [2 Ells., 380-430.] 
 
 (13) Smalls vs. Tillman. 
 
 Fraud; violence and intimidation; illegal rejection of returns. 
 Majority report for contestant; minority report for contestee. Con- 
 testant seated. 
 
 Majority report by Mr. Wait; minority report by Mr. Davis. 
 
 According to the returns as certified by the county canvassing 
 boards to the secretarv of state, contestee had a majority of 5,421 
 
382 DIGEST OF CONTESTED ELECTION CASES. 
 
 votes. Contestant alleged that the county canvassers unlawfullj' 
 refused to count the votes of many precincts, and also failed to for- 
 ward to the secretary of state the precinct election papers as required 
 by law; that the precinct returns did not in all cases truly represent 
 the votes cast, and that the election in many precincts was vitiated by 
 violence and intimidation. 
 
 Under the South Carolina election law of 1868 all the ballots were 
 sent from the precincts to the county seat, to be there counted for the 
 first time by the county canvassing boards three days after the elec- 
 tion. This gave so many opportunities for fraud, that in 1872 it was 
 provided that the count should be made at the polling places by the 
 precinct officers. The ballots and all election papers were then to be 
 forwarded to the county canvassers, and after the completion of the 
 county canvass all these papers were to be sent by special messenger 
 to the governor and secretary of state. All acts in conflict with this 
 act were repealed. The law of 1868 contained a provision making the 
 county returns the evidence on which the State canvassers should base 
 their certificate. Contestant claimed that this section was repealed 
 by the act of 1872, and that the requirement that the precinct papers 
 should be sent to the governor and secretary of state was a require- 
 ment that the State canvassers should use them as the evidence on 
 which their certificate should be based. The committee seem to have 
 been inclined to sustain this contention, but held that whether the 
 former provision was repealed or not the two acts should at least be 
 construed m pari materia, and the State canvass based on both the 
 county returns and the precinct papers. No precinct papers were for- 
 warded from three of the counties in this district, and the county 
 returns were based on a canvass of only part of the precincts. The 
 committee held that if a certificate is based on anything else than the 
 legal evidence, " or only upon a portion of the data prescribed by law, 
 it is without legal validity as regards the election of a member of 
 Congress, and this wholly independently of the question as to whether 
 this is done fraudulently, ignorantly, or is a mere casiis omissus. The 
 party relying upon such a certificate must prove his vote aliunde.'''' 
 
 The committee, however, did not decide the strictly legal question 
 as to the validity of the proceedings of the State board in the absence 
 of part of the papers which should have been before it, as the case 
 was controlled by other questions of law and fact. 
 
 The committee rejected the vote of the whole county of Edgefield, 
 part of the county of Aiken, and several precincts in other counties 
 on account of intimidation or fraud. Testimony in regard to every 
 precinct in Edgefield county was quoted to show that the election was 
 controlled by violence and intimidation on the part of organized and 
 armed bodies of white men, directed entirely against the colored voters. 
 Similar testimony justified the rejection of four precincts in Aiken 
 county and several precincts in other counties. A number of pre- 
 cincts were also rejected because the ballot boxes were stuffed, and the 
 large excess of ballots drawn out unfairly. It was possible to distin- 
 guish the ballots by the tpuch, and nearly all the ballots drawn out 
 were Republican ballots. 
 
 Attention was called in each of the counties where the testimony 
 showed extensive fraud or intimidation to the extraordinary result 
 shown by the returns. The census of 1880 had been taken shortly 
 before the election. In each of these counties more votes were 
 
FOETY-SEVENTH CONGRESS. 383 
 
 returned as being cast than there were males over 21 in the district as 
 shown by the census, though the testimony showed that large numbers 
 of voters were prevented from voting by intimidation and other causes. 
 All the testimony showed that nearly all the colored voters were Repub- 
 licans, and all the intimidation practiced against them by the friends of 
 contestee was based on this assumption; yet the returns showed that 
 in each of these counties if contestee received all the white vote he 
 must also have received more colored votes than contestant, and in 
 most cases more colored votes than white votes. Such a result could 
 only be understood in the light of the evidence showing the fraudu- 
 lent means by which it was obtained. 
 
 Restating the vote according to the findings of the committee, con- 
 testant was shown to have a majority of 1,489 votes, and the commit- 
 tee therefore recommended that he be seated. 
 
 The minority disagreed on all the questions in issue. There was an 
 excess of ballots in some of the boxes, but there was no evidence show- 
 ing how it came there, or connecting one party more than another 
 with it, and the charge that the excess was unfairly drawn out was 
 fully refuted. There was no evidence to sustain the charge that votes 
 counted for contestant by the precinct officers were not counted by the 
 county canvassers. The county canvassers counted all the returns made 
 to them, and the precincts not included in their canvass were precincts 
 from which no returns were made, but the ballots forwarded uncounted. 
 Under the law of 1868 it was the duty of the county canvassers to 
 count all the ballots, but the law of 1872 required this to be done by 
 the precinct officers at the polls, and the county canvassers therefore 
 had no right to count ballots not counted by the precinct officers. 
 Neither could they be counted by the State canvassers, as the law 
 expressly required them to base their canvass on the county returns. 
 The failure of the canvassers of three counties to forward the precinct 
 papers to the secretary of state was an entirely innocent mistake, and 
 no harm was done by it. The law required them to be forwarded to 
 the governor and secretary of state, and there had been some con- 
 fusion as to whether separate copies must be sent to the two officers. 
 The secretary of state, to remove this doubt, had issued instruction 
 that no copies need be sent to him, arid this was construed by the can- 
 vassers in these counties to mean that the papers need not be forwarded 
 at all. This mistalse certainly ought not to vitiate the action of the 
 State' canvassers, especially as the duty of forwarding the precinct 
 papers did not by law devolve upon the canvassing boards, but on the 
 individuals who had been chairmen of them. The papers were not 
 required by law to be before the State canvassers, and were not to be 
 forwarded to them, but to "the governor and secretary of state," 
 though the governor was not a member of the board of canvassers. 
 ^ The only other issue was the alleged intimidation, and even if the 
 charges under this head were proved they would not justify seating 
 contestant, though they ought to unseat contestee. 
 
 No principle in the law of elections can be regarded as better settled than that no 
 candidate can be held to have been elected to oflSce by the votes which, whatever 
 the cause, were not in fact cast for him. 
 
 But the charges were not proved. The quotations of testimony in 
 the majority report were all from one side and only the strongest parts 
 of that side. Most of the facts sworn to in the portions of the testi- 
 mony quoted disappeared or were greatly reduced hy the cross-exami- 
 
384 DIGEST OV CONTESTED ELECTION CASES. 
 
 nations of the same witnesses, and on what was left there was a 
 square issue of veracity between these witnesses and those of con- 
 testee. In intelligence, position, and responsibility the witnesses for 
 contestee were far superior to those of contestant, and in any judicial 
 proceeding their testimony would prevail on an issue of veracity. 
 There were some personal altercations at the polls, generally started 
 by partisans of contestant, but the freedom and fullness of the elec- 
 tion were not affected by these occurrences. The only instances in 
 which collisions between large bodies of voters were claimed to have 
 occurred were brought about by the action of partisans of contestant 
 in massing at certain polls with the object of taking possession of the 
 voting place by force. There was no violence here, but some quiet 
 resistance on the part of peace officers. In the precinct where the 
 body of Republican voters did not vote this action was voluntary on 
 their part and due to their failure to carry out their plan of securing 
 possession of the polling place. There was much crowding at some 
 polls, and some persons had difficulty in finding opportunity to vote 
 before the polls closed, but this was due to the action of the Republic- 
 ans in massing at certain polls. (Under the law a voter might vote 
 anywhere in the county in which he resided.) 
 
 As the report of the majority on these questions seemed to be taken 
 bodily from contestant's brief, the minority quoted contestee's brief, 
 giving indexes to the testimony on ioth sides, and full quotations of 
 the testimony by which the testimony quoted in the majority report 
 was contradicted or explained away. 
 
 If the attempt made by the majority to try the case by the census, 
 on the assumption that all colored voters are Republicans, could be 
 justified, then contests and even elections might as well be dispensed 
 with, and all elections in this and similar districts decided by the census. 
 But the evidence showed that in this district very many of the colored 
 voters were Democrats and voted for contestee, and that more would 
 have done so but for social ostracism and a species of intimidation 
 practiced against them by their own race. 
 
 The minority could find nothing in the record to destroy the title of 
 contestee, and recommended that he retain the seat. 
 
 The House, by a vote of 141 to 5 (not voting 146) adopted the reso- 
 lutions presented by the majority, and contestant was sworn in. 
 
 [2 Ells., 430-520.] 
 
 (14) Lee va'. Richardson. 
 
 Fraud; hallot-hox stuffing ; intimidation; tUegalrejection of returns. 
 Majority report for contestee; minority report for contestant. No action 
 hy the House. 
 
 Majority report by Mr. Calkins; minority report by Mr. Pettibone. 
 
 According to the returns as certified by the secretary of state, con- 
 testee had a majority of 8,468 votes. Contestant alleged that the 
 county returns on which this certificate was based did not include the 
 returns of all the precincts in the respective counties; that ballot boxes 
 were stuffed in many precincts, and the excess unfairly drawn out, and 
 that he was deprived of many votes bj^ violence and intimidation. Mr. 
 Pettibone presented a report signed by seven members of the com- 
 mittee, in which he analyzed the evidence in regard to each precinct, 
 
POETT-SEVENTH CONGRESS. 385 
 
 and by correcting the vote according to the evidence found a majority 
 of 28i votes for contestant. Mr. Calkins presented a brief report in^ 
 which he stated that he agreed in the main with the minority report, 
 but disagreed as to Darlington precinct. Unless this precinct was 
 rejected a majority could not be shown for contestant. He therefore 
 recommended a resolution, in which a majority of the committee con- 
 curred, dismissing the case without prejudice. There is no report 
 representing the views of those of the committee who did not in the 
 main agree with the minority. 
 
 In regard to Darlington precinct, Mr. Calkins said: 
 
 I do not think the evidence is sufficient to reject this return; it is purely a ques- 
 tion of evidence, and I can not bring myself to believe that the evidence is sufficient 
 to justify its rejection. There is no evidence in the record tending to prove how the 
 vote would stand on the theory of contestant if the return was rejected. I think the 
 evidence with reference to this precinct fairly establishes two propositions, viz: 
 Fii-st, that the colored voters on the morning of election, in large numbers, took 
 possession of the market house, where the elections were usually held. For some 
 reason not apparent the poll was opened at the court-house instead of the market 
 house, and the white voters at the opening took possession of it. Attempts were 
 made by the colored voters early in the day to force their way to the box to vote, 
 which seems to have been prevented by the white voters crowding the stairs leading 
 to the box. This led to crimination and recrimination and considerable confusion 
 and excitement, and a rumor seems to have prevailed among the colored voters that 
 several stands of arms had been brought to the town the night before the elcition 
 by the white Democrats, and that they were concealed in the court-house and in 
 Earley's store. Whether this was so or not is immaterial in the view which I have 
 taken of the testimony. There was no physical display of the guns on the day of 
 election, and I find as a matter of fact that, probably as early as 10 o'clock, and cer- 
 tainly not later than 11 o'clock on the day of election the colored voters, under the 
 advice of one Smith, who was a leader and man of influence among them, dispersed 
 and did not attempt again to vote on that day at that poll. The danger of bodily 
 harm was i^ot sufficiently imminent to warrant this course, and there was an entire 
 lack of diligence on the part of these voters to maintain their right to vote. Am a 
 matter of law these voters had a right to vote at any precinct in the county. There 
 was another voting precinct not many miles from Darlington, and there is ncj reason 
 given why they might not have voted at that precinct if they were driven away from 
 Darlington. For these and other reasons I am persuaded that Darlington should 
 remain. 
 
 The minority report (which, on most points, may probably be taken 
 as representing the views of a majority of the committee), discussed in 
 detail the evidence in regard to all the precincts in issue in each of the 
 counties of the district. In nearly all the precincts there was an excess, 
 generally a very large excess, of ballots in the box over the number of 
 names on the poll lists. All the officers of election were Democrats. 
 The excess was nearly always accounted for, in part at least, by testi- 
 mony showing that large numbers of "tissue ballots," all Democratic, 
 were found folded inside of other Democratic ballots. From these 
 facts, and in some precincts from more specific or corroboratives evi- 
 dence, it was concluded that the fraud was a Demociatic fraud, and 
 that the extra ballots fraudulently placed in the box were Democratic 
 ballots. Under the law a blindfolded manager of election was required 
 to draw out the excess of ballots. The Republican ballots were on 
 very thick paper and the Democratic ballots on very thin paper, so 
 that they could easily be distinguished by the touch. The proof 
 showed in mojst instances the number of ballot^ of each sort drawn out, 
 and they were mostly Republican. In some precincts the "tissue 
 ballots " were first destroyed and only the remaining excess drawn out 
 in this way, in others the tissue ballots were returned to the box with 
 
 H. Doc. 510 25 
 
386 DIGEST OF CONTESTED ELECTION CASES. 
 
 the others, but none of them were drawn out. In all these precincts 
 it was evident that the box had been stuffed, and where the fraud was 
 shown to have been a Democratic fraud it must have been stuffed with 
 Democratic ballots, and the truth could only be arrived at by correct- 
 ing the returns on that basis. The Republican ballots which had been 
 drawn out were therefore restored to contestant, and the entire excess 
 deducted from contestee. This greatly reduced but did not overcome 
 contestee's returned majority. 
 
 The county canvassers in several of the counties rejected the returns 
 of a number of precincts for informalities. The supreme court of the 
 fcjtate had since decidfed that these boards had no judicial powers. 
 Nearly all the precincts in one county were rejected because tne mes- 
 sengers who delivered the boxes containing the returns and other 
 papers did not present written certificates authorizing them to deliver 
 them, and in other counties returns were rejected on affidavits showing 
 that the polls were not opened or closed precisely at the legal hour; 
 one return was rejected because one of the judges signing it had not 
 been legally appointed. The minority counted all these returns as 
 made except where the boxes had been stuffed, and these they cor- 
 rected, as in other cases. 
 
 There was violence and intimidation at a number of precincts, but 
 in most instances it was not found sufficient to vitiate the election. 
 The only important precinct rejected was Darlington, described above 
 in the report of Mr. Calkins. The minority found that there was no 
 competent evidence what vote was counted from this precinct by the 
 county canvassers. The county canvassers had failed to forward to 
 the secretary of state the precinct returns and other papers, and the 
 certificate of the secretary of state only showed the totsd vote of the 
 county. There was what purported to be a certified copy of the pre- 
 cinct return in the record, but the clerk who appeared to have certi- 
 fied it testified in another place that he had not certified to its truth, 
 and the return had been so kept that its integrity could not be relied 
 upon. The minority counted the other precincts in this county either 
 according to evidence aliunde or according to the claims of contestee, 
 but there was no evidence aliunde showing either the actual vote or 
 the returned vote of this precinct. The proceedings at this poll were 
 such as to vitiate any election. The steps leading to the ballot box 
 were occupied by Democrats in red shirts, many of them armed and 
 most of them intoxicated; supplies of arms had been quietly brought 
 into the town the night before and deposited near the polling place, 
 and Republicans who attempted to vote were prevented by violence, 
 as was shown by the testimony of 240 witnesses, who swore they were 
 present and desired to vote for contestant, but were prevented by 
 threats or intimidation. The minority did not include any votes from 
 this poll in their account. 
 
 Adding up the votes actually cast at the various precincts, as found 
 by the minority, contestant was shown to have a majority of 284 votes, 
 and the minority therefore recommended that he be seated. 
 
 These reports were made to the House on February 24, 1883, and 
 were under consideration when the Congress expired by limitation, on 
 March 3. The resolutions offered by the minority, declaring contest- 
 ant elected, were adopted as an amendment, by a vote of 124 to 114. 
 On the adoption of the resolutions us thus amended the vote was 128 
 to 6 (not voting 15S), no quorum voting. A call of the House revealed 
 
FOETY-SEVEWTH CONGRESS. 387 
 
 a quorum present, but on the next vote no quorum voted. This alter- 
 nation of votes showing no quorum voting and calls of the House 
 showing a quorum present continued until the Congress expired, so 
 no final action was taken on the case. 
 [2 Ells., 521-561.] 
 
 (15) Maokey m. O'CoKNOK. 
 
 Sallot-hox stuffing; illegal rejection of returiis; tampering 'with 
 transcript of evidence; status of case when, contestee has died and the 
 member elected to fill the alleged vacancy has heen sworn in. Majority 
 report for contestant; minority report to dismiss contest. Contestant 
 seated. 
 
 Majority report by Mr. Miller; minority report by Mr. Moulton. 
 
 According to the returns as certified by the secretary of state, con- 
 testee (Mr. O'Connor) had a majority of 5,272 votes. Contestant 
 alleged that be had a majority of the votes on the face of the precinct 
 returns, but that the county canvassers had illegally rejected a large 
 number of precinct returns, and that one precinct return had been 
 destroyed, and the contents of the ballot box altered, and the vote 
 counted according to the ballots. He also alleged that in a large 
 number of specified precincts the ballot boxes had been stuffed with 
 Democratic ballots, and when the excess was drawn out in pretended 
 compliance with the law nearly all the ballots drawn out were Repub- 
 lican, so that contestant was deprived of a large number of votes 
 legally cast for him, and contestee given a corresponding number not 
 cast for him. Contestee denied the charge of ballot-box stuffing, sub- 
 stantially admitted the charge of rejection of returns, and made counter 
 charges of intimidation. On these issues testimony was taken. About 
 the time the testimony was all taken contestee died, and the governor 
 issued writs for an election for a member "to serve for the remainder 
 of the term for which the said Michael P. O'Connor was elected." At 
 this election Mr. Samuel Dibble received all the votes cast, and he was 
 sworn in, the House laying on the table a motion to refer his creden- 
 tials to the Committee on Elections. 
 
 Mr. Dibble contended that he could not be made a party to the case 
 of Mackey vs. O'Connor, and that if his right was to be questioned it 
 must be in a new proceeding. This claim was overruled by the 
 committee. 
 
 The right of the contestant, as also of the people of that ■Congressional district, 
 who, after all, are the real parties in interest, to have the facts of that election 
 inquired into and adjudicated by the House, can not be changed by the fact of the 
 death of the contestee. If the contestant really received at that election, as he 
 claims, the largest number of legal votes, it is his right and the right of the people of 
 that district that he be awarded the seat he was chosen to fill. The committee, how- 
 ever, are of opinion that Mr. Dibble, if elected to any position, was elected to fill a 
 vacancy created by the death of Mr. O'Connor, and for his unexpired term. * * * 
 The right of Mr. Dibble to a seat in the House depends upon the title of Mr. O'Con- 
 nor, * * * and if it appears from the proof.' that Mr. O'Connor was not elected, 
 then there was no vacancy created by his death, no remainder of a term to be filled, 
 and Mr. Dibble could have no rights to be prejudiced by any pleadings or agree- 
 ments made by Mr. O'Connor. 
 
 If a contest could abate by the death of contestee, then it would 
 abate by his resignation, and a contestee finding his case hopeless 
 might at any time abate the case by his own volition and again ofl'er 
 
388 DIO-EST OF CONTESTED ELECTION OASES. 
 
 himself as a candidate at a now election in which he would have noth- 
 ing to lose and everything to gain. 
 
 After this question had been settled by the committee Mr. Dibble 
 made a second motion to suppress the testimony, alleging that the 
 testimony as printed was not the testimony as originally taken, but 
 that it had been altered and perverted by contestant, and also that the 
 technical requirements of the statute in regard to transcribing and 
 forwarding the testimony had not been complied with. In suppoi-t of 
 this motion Mr. Dibble submitted a number of ex 2Mrte affidavits, to 
 which contestant replied by submitting the affidavits of 83 of the 94 
 witnesses examined by him, stating that the.r testimony as printed 
 was correct, and again swearing to its truth, and the affidavit of the 
 stenographer stating that in the limited time given him he had com- 
 pared the printed testimony of 14 witnesses with his original notes and 
 found it correct. If the testimony of an}' of the others had been incor- 
 rect there was ample time for Mr. Dibble to have had it compared and 
 to have procured an affidavit to that effect. 
 
 The provisions of the statute in regard to the form and manner of 
 taking and forwarding the depositions were directory merely, and 
 the committee only inquired whether the testimony of the mtnesses 
 had been correctly taken, and forwarded as taken. The great prepon- 
 derance of the affidavits showed that there had been no alteration of 
 the testimony. The stenographic notes were, strictly speaking, the 
 original evidence of what the witnesses deposed. It was agreed that 
 they should be afterwards transcribed, and it was immaterial how or 
 by whom they were transcribed, provided they were correctly ti-an- 
 scribed, "since the notary public accepted the work as done by the 
 copyists, and certified to the same as being the depositions taken by 
 him. The fact that the contestant assisted in making transcripts of 
 this evidence does not detract from its correctness." The committee, 
 therefore, considered the testimony, and proceeded to determine the 
 case on its merits. 
 
 Although contestee had a large majority on the returns as counted, 
 contestant would have had a majority of 879 votes if all the precinct 
 returns had been counted. The apparent majority of contestee was 
 obtained by the rejection of twelve precinct returns, and by the fraudu- 
 lent i-eversal of the vote of Haut Gap precinct. At thi.s precinct an 
 honest election was held, and the managers counted the votes and certi- 
 fied for contestant 1,037; for contestee, 46. The returns were sealed 
 up in the box and delivered to the county canvassers. After the deliv- 
 ery of the box the seal was broken by someone, the returns abstracted, 
 and the ballots changed. The county can\-assers, finding no return, 
 counted the ballots in the box and found 19 for contestant and 1,052 
 for contestee — substantially a reversal of the true vote as returned. 
 The other twelve precincts were rejected by the canvassers. Contestee 
 alleged that they were rejected because ''threats, acts of intimidation, 
 and violence were perpetrated by the partisans and supporters of Mr. 
 Mackey;" but the county canvassers had no judicial authority to exam- 
 ine into such questions and reject polls, and there was no evidence 
 before the committee to sustain any such charges. The committee, 
 therefore, found that contestant had a majority of 879 votes on the 
 face of the returns. 
 
 But the real majority of contestant was much larger. At forty-five 
 precincts— two-thirds of the precincts in the district — the ballot boxes 
 
FORTX-SEVENTH CONGRESS. 389 
 
 were stuffed, as was shown by the larye excess of ballots over the 
 number of names on the poll list. The average excess in these forty- 
 five precincts was 139. ballots, and in one box 1,071 extra ballots were 
 found. The total excess in all the precincts was 6,247 votes. 
 
 This large excess, occurring, as it did, at over two-thirds of the polls in the dis- 
 trict, warrants the conclusion that the excess at those polls was not the result of 
 mere accident or local manipulation, but of a well-defined and matured plan. 
 
 It was very clear that these extra ballots were Democratic ballots. 
 In accordance with advice publicly given by contestant and others, the 
 Republicans at most of the polls went to the polls with open tickets, 
 and folded them in the presence of the managers of election, so as to 
 show that they only voted one ticket. All the election officers in all 
 the precincts were Democrats, and the boxes could hardly have been 
 stuffed without their connivance. Two sorts of Democratic ballots, 
 one much narrower than the other and printed on fine tissue paper, 
 were used throughout the district. In many precincts there was specific 
 proof of finding several, and in one case 23, of these ballots inclosed 
 in larger Democratic ballots. The fact that the extra ballots were 
 Democratic was also conclusively shown at some polls by the fact that 
 there were more Democratic ballots in the box than there were voters 
 voted of both parties. In one case there were 465 more Democratic 
 ballots than there were votei's of both parties. 
 
 In drawing out the excess of ballots it was very easy to distinguish 
 the Republican from the Democratic ballots by the touch, and the bal- 
 lots drawn out were chiefly Republican. In twenty-nine polls 2,454 
 Republican and 383 Democratic ballots were drawn out. 
 
 Every Republican vote drawn out was a loss of one to Mr. Mackey and a gain of 
 one to Mr. O'Connor. On the other hand, by the drawing out of a Democratic 
 ticket Mr. O'Connor suffered no loss, because the excess being created by placing 
 Democratic tickets in the box, whenever a Democratic ticket lawfully voted was 
 drawn out one of the Democratic tickets illegally voted was counted in its place, so 
 that the contestee's vote was not reduced thereby. In order, therefore, to ascertain 
 the true state of a poll it is only necessary to add to the vote returned for the con- 
 testant at that poll the number of Republican ballots drawn out and destroyed, and 
 to deduct from the vote returned for the contestee a like number, making, of course, 
 such additional corrections as the testimony warrants. 
 
 Correcting the votes of the various precincts in this way, the com- 
 mittee found that contestant's majority of 879 votes on the face of the 
 returns was increased to 9,278, andthey therefore offered resolutions 
 declaring that Mr. Dibble was not entitled to occupy the seat, and that 
 contestant was elected. 
 
 The minority held that there was no contest legally pending, and 
 also that the motion to suppress the testimony on the ground that it 
 had been altered by contestant should be granted. The affidavits 
 presented showed that all the testimony had been copied by contestant 
 and his agents, and that contestant had made alterations in it. Mr. 
 Dibble made affidavit to a number of alterations in Mr. Mackey's 
 handwriting apparent on the face of the testimony. The notary did 
 not compare any of the testimony with his notes after it was copied, 
 but certified it without examination. None of it was written out 
 in his presence, as the law required. The minority quoted a large 
 number of decisions made under similar statutes, showing that it was 
 always required that all the forms of law in the writing out and for- 
 warding of depositions should be scrupulously observed, and that the 
 
390 DIGEST OF CONTESTED ELECTION CASES. 
 
 integrity of the depositions should he unquestionable. None of these 
 depositions could legally be considered. 
 
 The minority also held that the papers offered as United States 
 supervisors' returns and the tabulated statement purporting to be 
 made by the chief supervisor were not admissible as evidence. Section 
 2029 of the Revised Statutes, as understood and explained at the time 
 of its passage, took away from the supervisors outside of cities of 
 20,000 inhabitants or over all powers except those of mere witnesses, 
 including the power of making returns. The certificates not being 
 required by law, they were not evidence, and the facts sought to be 
 shown by them should have been shown by the testimony of witnesses. 
 The statements of the chief supervisor did not purport to be copies of 
 any papers in his office, but simply a compilation from them. 
 
 Mr. Dibble's rights ought not to be in any way affected by the record 
 in the case of Mackey vs. O'Connor. Mi-. O'Connor was the returned 
 member, and had a right to the seat for two years unless he died or 
 the House adjudged him not elected, but he had no inheritable or 
 transmissible interest in it. 
 
 The contest for Ms seat after his death is a contest for something that has ceased 
 
 to exist. 
 
 Mr. Dibble had been duly elected and had been sworn in in accordance 
 with a vote of the House. This gave him a right to the seat until 
 someone should successfully attack his right. He was entitled to the 
 notice of contest required by the statute, and to an opportunity to 
 defend, his right. The House has the right to adjudicate the question 
 of the right of a member to his seat, either in the case of a contest 
 between a contestant and a returned member, under the statute, or 
 upon the protest of an elector or other person, or upon the motion of 
 a member of the House. In the first case, that of a statutory contest, 
 the proceeding is inter partes and abates on tha^death of either party. 
 It must be conducted according to the statute. In the other cases the 
 proceeding is under the Constitution, and the House must prescribe 
 the rules for the conduct of each particular case. The case of Mackey 
 vs. O'Connor was a proceeding inter partes, and Mr. Dibbl6 could not 
 be made a party to it. If contestant desired to question the right of 
 Mr. Dibble, he must do it by a contest under the statute, opened by 
 a due notice of contest. If the right of Mr. Dibble was to be ques- 
 tioned in any other way, it could only be by order of the House. The 
 usual resolution of reference of contested-election cases to the Com- 
 mittee on Elections did not give that committee jurisdiction over the 
 abated case of Mackey vv. O'Connor, much less did it give the right to 
 make that case the basis of an inquiry into the right of Mr. Dibble to 
 his seat. 
 
 We can not concur in establishing as a precedent that a member of this House, 
 duly admitted to his seat, can be rightfully removed therefrom without any oppor- 
 tunity of defending his title thereto, either by pleading his defense or by introducing 
 evidence in his behalf. Nor can we subscribe to the opinion that the Committee on 
 Elections, under its ordinary powers, can summon a member of this House to 
 defend a cause in which he is not the contestee, in which he is in no way named as a 
 party, and in which the House has not only not required him to appear but has bv 
 its action declined to make him a party. 
 
 The minority discussed very briefly the contestant's claims on the 
 merits of the case. It was not true that contestant had a majority on 
 
FOKTY-SEVENTH CONGRESS. 391 
 
 the face of the returns. Counting all the rejected returns as claimed 
 by contestant, there still remained a majority of 1,145 for contestee.^ 
 
 The attempt to build up a majority of 9,278 for contestant was 
 based on the assumption that the ballot boxes were stuffed by Demo- 
 crats, in the face of the fact that the very evidence relied on by 
 contestant showed that at ten or twelve polls Kepublican ballots were 
 found folded together. 
 
 The minority recommended that the case of Mackey vs. O'Connor 
 be dismissed. 
 
 After many days of "filibustering" a resolution to send a com- 
 mittee to investigate the charges of tampering with the testimony was 
 rejected by a vote of 97 to 139. The resolutions presented by the 
 majority were then passed by a vote of 150 to 3 (not voting, 138), 
 and Mr. Dibble was unseated and contestant sworn in. 
 
 [2 Ells., 561-602.] 
 
 (16) Stolbkand vs. Aiken. 
 
 Testimony not taken hefore legal officer. Case dismissed. 
 
 Report by Mr. Jones. 
 
 The testimony of contestant was all taken before a United States 
 commissioner. Contestee objected at the outset to the competence of 
 the officer, and the committee sustained the objection. The law speci- 
 fied certain officers before whom testimony might be taken, and pro- 
 vided that by the written consent of both parties it might be taken 
 before other officers. There was no such consent in this case. 
 
 It is insisted that the House of Representatives, in judging of the elections, quali- 
 fications, and returns of its members, is not bound by the rigid rules of judicial pro- 
 cedure. This is true, but applies only to exceptional cases, not provided for by the 
 "rules prescribed." It would be worse than idle to prescribe rules if they may be 
 willfully and unnecessarily disregarded. 
 
 This view was decisive of the case, and the committee therefore 
 recommended that contestant have leave to withdraw his papers. 
 The House agreed, without division. 
 ^ ^:ils., 603, 604.] 
 
 (17) Cannon vs. Campbell. 
 
 Polygamy , illegal naturalization; status of Territorial Delegate 
 with reference to the right of the House to try election, contests. Reports 
 ly Messrs. Calkins, Pettibone, Miller, Jacobs, -amd Beltzhoover to vacate 
 seat; iy Mr. Thompson for contestee; hy Messrs. Eamney and Alher- 
 ton., and minority report signed hy Messrs. Moulton (Alherton), Davis, 
 and Jones for contestant. Seat declared vacant. 
 
 On the face of the returns contestant had 18,568 votes and contes- 
 tee 1,357, but the governor issued the certificate to contestee on the 
 ground that contestant was a polygamist and an alien, and hence 
 ineligible, and that this involved the election of contestee. The Clerk 
 of the House placed the name of contestant on the rolls, but at the 
 beginning of the session the House refused to permit either to be 
 
 ' In this statement Haut Gap precinct was retained as counted by the county 
 canvassers. 
 
392 DIGEST OF CONTESTED ELECTION CASES. 
 
 sworn in, and referred the papers to the Committee on Elections, to 
 report either on \!a& 'prima jaaie or the final right to the seat. 
 
 Mr. Calkins made the fullest report in advocacy of the proposition 
 that neither candidate was elected. A majority of the committee seem 
 to have agreed in this conclusion, but there were several separate 
 reports, each representing only the views of the member signing it. 
 
 Contestant presented a certificate of naturalization in due form pur- 
 porting to have been issued in 1854 by a court of competent jurisdic- 
 tion. Most of the members of the committee agreed that this could 
 not be attacked in a collateral proceeding. Contestee attacked the certi- 
 ficate on the grounds that there was no legal record of its issue, and 
 that contestant had not in fact resided in the United States the required 
 length of time when the certificate was issued. The only record of 
 naturalizations kept by the court from which this certificate was issued 
 was the book of stubs from which the certificates were torn off. The 
 stubs were not signed by the judge, but it was held that this was not 
 imperative in the abs'ence of a mandatory statute requiring it. It 
 fully appeared bj' parol evidence that the judgment of naturalization 
 had in fact been dulj^ rendered by the court. 
 
 Mr. Cannon came to the United States when a boy, in 1842, and 
 settled at Nauvoo, 111. In 1847 he went with the rest of the Mormon 
 colon}? to Great Salt Lake, in what was then Mexican territory. In 
 1848 this territory was ceded to the United States. Soon after Mr. 
 Cannon went to California, and in about a year went to the Hawaiian 
 Islands as a missionary, returning only a short time before his natu- 
 ralization. These facts were not held to vitiate the naturalization, 
 either because it could not be collaterally attacked or because Mr. 
 Cannon was considered as having been constructively a resident the 
 required length of time. 
 
 The only evidence in the case on behalf of contestant consisted of 
 certified copies of the county returns. These were appended to his 
 notice of contest, but were not otherwise put in evidence during the 
 legal time or before any officer. They were admitted, however, by 
 most of the committee, on the ground that this sort of certified docu- 
 mentary evidence may be put in evidence at any time. 
 
 All the committee except Mr. Thompson agreed that contestee was 
 not elected and nearly all agreed that contestant was elected unless he 
 was disqualified by polygamy. He admitted that he was a polygamist. 
 Those who advocated refusing him his seat on this ground argued that 
 a Territoi'ial Delegate is not a member of the House, and is not an 
 oflicor under the Constitution. He holds his seat by the courtesj' of 
 the House, which may at any time \>y a majoritj'' vote deprive him of 
 it. His qualifications are whatever the House in any particular Con- 
 gress may choose to prescribe; and even Congress can not by law bind 
 any House but the one consenting to the law. Polygamy is a viola- 
 tion of the laws of the United States and a high crime against civiliza- 
 tion. The House ought, in justice to its own dignity, to exclude a 
 self-confessed polygamist from a seat on its floor. 
 
 Mr. Thompson, who reported for contestee, did so on the ground that 
 his certificate of election nmst stand until overthrown by competent 
 evidence, which had not been done. Contestant had given notice of 
 contest under the statute, but had offered no evidence of any sort taken 
 under the statute. He must be held to have abandoned his contest. 
 If the certified copies of the returns were admitted, they did not prove 
 
FOETT-SBVBNTH CONGRESS. 393 
 
 how many legal votes were cast. Under the laws of the Territory it 
 was possible for women who were not citizens and other clearly 
 unqualified persons to vote. There was no evidence how many of 
 these votes might have been cast. The pretended naturalization of 
 contestant was clearly void. There was no legal record of its issue, 
 and contestant had not at the time it purported to have been issued been 
 an actual resident of the United States the required time; constructive 
 residence was not sufficient. 
 
 ^,^hose who reported for contestant did so on the ground that the 
 committee had no right to investigate any other qualifications than 
 those prescribed by the statute creating the office of delegate, or by 
 the Constitution in regard to members, which applied to Delegates by 
 analogy. A Delegate was so far a member that he ought not to be 
 deprived of his seat except upon evidence that he was not elected or 
 that he possessed some legal or constitutional disqualification. The 
 personal moral character of the Delegate was no more to be considered 
 in judging of his election, qualifications, and returns than in the case 
 of a Member. If he was to be removed because of personal unfitness 
 it should be by expulsion by a two-thirds vote. 
 
 The resolutions of the minority, declaring contestee elected, were 
 rejected by a vote of 79 to 123. The resolutions declaring the seat 
 vacant were then passed without division. 
 
 [2 Ells., 604-667.] 
 
 (18) Stovell -?«. Cabell. 
 
 Fraud; 'illegal influence; irregvlarities. Report for contestee. 
 Contestee retained the seat. 
 
 Report bj^ Mr. Atherton. 
 
 According to the returns contestee had a majority of 859 votes. If 
 all the claims of contestant in his notice of contest in regard to pre- 
 cincts about which he took any testimony were conceded, this majority 
 would not be overcome. Some testimony was taken in regard to pre- 
 cincts not mentioned in the notice of contest or upon issues in regard 
 to others not raised by the notice of contest, but the committee held 
 it to be inadmissible. Testimony was also thrown out because taken 
 in one county before a notary public of another county, or before a 
 county clerk, an officer not authorized by the statute. Most of the 
 charges as to other precincts were not sufficiently proved. Contestant 
 charged that at one precinct his supporters were subjected- to social 
 and business ostracism, and that the colored and white voters were 
 required to vote at separate windows; the white voters voted rapidly 
 and without challenge, while the colored voters were purposely delayed, 
 so that many of them had not yet voted when the polls closed. The 
 mere fact of receiving the votes at two windows did not affect the 
 validity of the election. There was very little testimony tending to 
 
 {)rove the charge of unfairness, and this was fully contradicted. Simi- 
 ar charges were made against a few other precincts, but not proved. 
 Many votes were charged to have been rejected by the illegal rulings 
 of election officers, but while some votes may have been so rejected, 
 the number was much less than charged, and not great enough to affect 
 the result. 
 
 The committee unanimously recommended resolutions declaring con- 
 testee elected. The House agreed without division. 
 ra Ells. 667-675.1 
 
394 digest of contested election cases. 
 
 (19) Bayley vs. Barbour. 
 
 Inhabitancy. Heport for contestee. Contestee retained his seat. 
 
 Keport by Mr. Wait. 
 
 Contestant abandoned all the claims in his notice of contest except 
 the charge that contestee was ineligible by reason of not being an 
 inhabitant of Virginia at the time of his election. In doing this he of 
 course abandoned all claim to be himself entitled to the seat, and the 
 committee would have preferred to have the question of eligibility 
 raised by a memorial from the electors, who were alone interested. 
 
 It appeared that Mr. Barbour had no property in the city of Alex- 
 andria, but that his wife had, and it was assessed against her as a resi- 
 dent of Alexandria until shortly after the election in question. Mr. 
 Barbour had a temporary home in Washington, but he always considered 
 and announced himself as a resident of Virginia. Legal processes 
 were habitually served on him in Alexaadria. For two or three 
 months before and after the election in question he had been actually 
 present in Virginia, with no intention of ever permanently removing 
 therefrom. The laws of Virginia required a year's residence in the 
 State and three months in the county, city, or town. It was contended 
 that Mr. Barbour had not these qualifications of an elector, but the 
 committee, after discussing the cases of Bailey (C. & H. , 411) and Key 
 (C. & H., 224), held that it was not necessary that a member should 
 be a voter in the State at the time of his election, but only that he be 
 an inhabitant. 
 
 The committee recommended that contestee retain the seat, and the 
 House agreed without division. 
 
 [2 Ells., 676-680.] 
 
 (20) Jones vs. Shellet. 
 
 Application for a special investigation . Majarity report favorahle; 
 minority report adverse. No action hy the Souse. 
 
 Majority report by Mr. Ranney; minority report by ]Mr. Beltz- 
 hoover. 
 
 Mr. Shelley had been unseated (see case of Smith vs. Shelley) and a 
 vacancy declared. A special election was called to fill the vacancy, 
 and Mr. Shelley was certified to have been again elected. Contestant 
 alleged that on the face of the precinct returns he had received a 
 majority of about 10,000 votes, but that neai'ly all his votes had been 
 thrown out by the county canvassers on frivolous pretexts. He 
 exhibited to the committee the returns of the United States super- 
 visors, which seemed to support the charge. Notice of contest had 
 been duly served, but the time allowed Ijy the statute for taking testi- 
 mony would extend be}rond March 4, 1883, when the Congress would 
 expire by limitation. Contestant therefore petitioned for a more 
 speedy way of investigating the election. The committee favored 
 granting the application. The well-known history of the district (the 
 Fourth Alabama) and the facts brought out in the contest of Smith vs. 
 Shelley gave a show of probability to the claims of contestant, and if 
 his allegations were true the House ought to know it. The committee 
 therefore recommended that a subcommittee of three members be 
 authorized to go to Alabama to take testimony. 
 
FOETY-SEVENTH CONGRESS. 395 
 
 The minority opposed employing anj^ sucli plan. Contestant might 
 have started his contest earlier and thus gained time. The time was 
 now (January 23, 1883) so short that no special committee could take 
 more than a small part of the evidence. Contestant and contestee were 
 taking testimony in the regular way, and should be permitted to pro- 
 ceed. The only effect which an investigation by a special committee 
 could have would be to prejudice the case of Craig w. Shelley, which 
 was pending in the Forty -eighth Congress. The Forty -seventh Con- 
 gress had already had contests enough of its own "without embarking 
 in the business of setting up small side shows to help along contests in 
 the next House." All the presumptions were in favor of contestee, 
 and the statement of the majority that the claims of contestant were 
 "probable" was based on uncalled-for assumptions. 
 
 The rule of law being that the ordinary method of trying contested elections in 
 accordance with the provisions of the act of Congress will not be departed from 
 without good cause, it is respectfully submitted that under all the circumstances in 
 this case no such cause has been shown. 
 
 The minority report was subsequentlj?^ withdrawn by unanimous 
 consent. 
 There was no action by the House. 
 [2 Ells., 681-686.] 
 
396 DIGEST OF CONTESTED ELECTION OASES. 
 
 FORTY-EIGHTH CONGRESS, 1883-1885. 
 
 Oommittee on. EU'ctimiH. 
 
 Mr. TuENER, Georgia, ' Mr. Adams, New York, 
 
 Davis, Missouri, Ranney, Massachusetts, 
 
 Converse, Ohio, Pettibone, Tennessee, 
 
 Cook, Iowa, Miller, Pennsylvaniii, 
 
 Bennett, North Carolina, Valentine, Ne))raska, 
 
 LowRY, Indiana, Hepburn, Iowa. 
 
 Elliott, Pennsylvania, Hart, Ohio, 
 Mr. Robertson, Kentucky. 
 
 1) J. R. Chalmers vs. -V. H. Manning, Mississipjyi . 
 
 2) George T. Garrison ■!)«. Robert Mayo, Virgima. 
 
 3) Francisco A. Manzanares vs. Tranquilino Luna, Xnr Mexico. 
 
 4) Charles C. Pool vs. Thomas G. Skinner, Kortli Carolina. 
 
 5) S. N. Wood vs. S. R. Peters, Kansas. 
 
 6) Charles T. O'Ferrall vs. John Paul, Virginia. 
 
 7) William M. English vs. Stanton J. Peelle, Indiana. 
 
 8) Jonathan H. Wallace ijs. Wm. McKinlej^, jr., Ohio. 
 
 9) James E. Campbell vs. Henry L. Morey, Ohio. 
 
 10) John E. Massey rs. John S. Wi'se, Virginia. 
 
 11) George H. Craig vs. Charles M. Shellej', Alabama. 
 
 12) A. C. Botkin vs. Martin Maginnis, Montana TerritiYry. 
 
 13) James H. McLean vs. James O. Broadhead, Missouri. 
 
 14) Benjamin T. Frederick vs. James Wilson, l<»ra. 
 
 (1) Chalmers vs. Manning. 
 
 Pnma facie case: Neither party seated. Case on merits: Undue 
 influence hy Government officers; holding of incompatiUe office. 'Ma- 
 jority reports for contestant; minority report to declare seat meant. 
 Contestant seated. 
 
 Prii)ia facie case: Majority report by Mr. Turner; minority report 
 by Mr. Cook. 
 
 Case on merits: Majority report by Mr. Cook; dissenting report by 
 Mr. Ranney, minority report by Mr. Davis. 
 
 The Clerk of the House did not place the name of either claimant 
 on the roll, as the certificate of election of Mr. Manning had not been 
 filed with him, and among the papers which were filed by the parties 
 there was nothing which he regarded as a certificate of election. There 
 was considerable debate during the first two days of the session as to 
 what was the proper course to be pursued, and on the second day a 
 resolution was inti'oduced, with the consent of Mr. jNIanning, and 
 passed, referring all the papers presented by both parties to the Com- 
 mittee on Elections, " with instructions to report immediately whether 
 upon the prima facie case as presented by said papers said Manning 
 
FOKTY-EIGHTH CONGRESS. 397 
 
 ar Chalmers is entitled to be sworn in as a member pending the contest 
 on the merits, and not to affect the final right to said seat." 
 The committee reported that — 
 
 This action of tlie House was either a refusal of the seat to Mr. Manning by tlie 
 House on the usual evidence of the governor's certificate or it was a renunciation by 
 liim of his right to demand such seat upon the governor's certificate alone; perhaps 
 it was both. 
 
 Among the papers referred was a commission issued by the governor 
 to Mr. Manning, in due form. If the committee had confined their 
 investigations to this paper alone, they would "unhesitatingly have 
 afiirmed Mr. Manning's right to occupy the seat pending the contest. 
 Except in extraordinary cases, and in rare instances, we find that the 
 commission or certificate concludes all inquiry as to which of the 
 claimants of a seat shall occupy it until the contest on the merits is 
 determined." But in this case all the papers had been referred by the 
 House, and among them was the certificate of the secretary of state, 
 upon which the certificate of the governor was based. This certificate 
 showed a large number of votes returned for J. R. Ohairibless, which, 
 if counted for contestant, would give him a majority of all the votes. 
 Contestee in his answer to the notice of contest had conceded that 
 these votes were cast for contestant, and had announced his intention 
 of not claiming the seat on the certificate of the governor, or until he 
 could prove his election by other evidence. The returns on which the 
 certificate of the secretary of state was based showed that the votes in 
 question were returned to the secretary of state as having been cast 
 for contestant — the name "Chambless" appearing not on the face of 
 the returns, but in a tabular statement written on the back of one of 
 them. Under these circumstances, and on account of the insti-uctions 
 of the House, the admissions of contestee, and his refusal to take his 
 seat in the usual way, the committee were ''unable to agree that Mr. 
 Manning should be seated upon hisjirima facie title. Mr. Chalmers 
 having no such credentials as the law contemplates, we do not think 
 that he ought to be seated pending the contest." 
 
 Mr. Cook filed a dissenting report, contending that the circum- 
 stances of the reference did not show that Mr. Manning had declined 
 or the House denied his right to take a seat on his certificate. The 
 only evidence proper to be considered on 3i prim.a facie case was the 
 certificate, and, according to all the authorities, unless this certificate 
 either showed on its face facts contradicting the result to which it cer- 
 tified or was issued by incompetent authority, it was conclusive of the 
 2>rima facie right of its holder to the seat. To hold otherwise, and 
 especiallj' to hold that a person shown by other evidence than the cer- 
 tificate not to have received a majority on the face of the returns was 
 thereby to be deprived of the 2>i''ina facie title given by the certificate, 
 would be to double the labor of every election case by requiring two 
 adjudications, both based upon testimony. 
 
 On the prima facie case, a resolution that the eredentiuls of contestee 
 were "due and perfect" was defeated, by a vote of 106 to 139, and 
 one that he be sworn in, by a vote of 91 to 157. The committee was 
 then, without division, discharged from the consideration of the prima 
 fade case. 
 
 The seat remained vacant pending the investigation of the merits. 
 On the final adjudication the committee, by a nearly unanimous vote, 
 decided that contestant was entitled to the seat. He was conceded to 
 
398 DIGEST OF CONTESTED ELECTION OASES. 
 
 have received a large majoritj' on the face of the returns, but his elec- 
 tion was sought to be overthrown by charges that officers of the United 
 States Government, by illegal influence and bribery, had interfered 
 with the election, and also by the allegation that contestant, by virtue 
 of his employment as "special assistant to the district attorneys for 
 the northern and southern districts of Mississippi," had been an officer 
 of the United States, and was thereby disqualified from being a mem- 
 ber of Congress. 
 
 The committee found that Federal patronage and the services of 
 Federal officers had apparently been used in a way that was "a re- 
 proach to the civil service of the country." But while such practices 
 were to be condemned, it did not appear in this case that they had 
 affected the result of the election; indeed, their main effect seemed to 
 have been to secure to contestant the nomination of his party, with 
 which the House had nothing to do. As to the second question, pass- 
 ing the question whether the position of special assistant to the district 
 attorney is an office within the meaning of the Constitution, the com- 
 mittee found that Mr. Chalmers was retained for a special purpose, 
 ' ' and that prior to the time for the convening of Congress the matter 
 for which he was appointed or employed had been disposed of. * * * 
 Practically his connection with the office of district attorney had 
 ceased." 
 
 Mr. Ranney presented a i-eport signed by himself and Messrs. Pet- 
 tibone. Miller, Valentine, Hepburn, and Hart, all of whom agreed in 
 the conclusion of the majority report, but protested against the insin- 
 uations of that report against the conduct of Federal officials and 
 against the pex'sonal character of contestant. They claimed that the 
 evidence entirely failed to substantiate any of these charges. They 
 also discussed more at length the question of whether the office of assist- 
 ant to a district attorney was a disqualifying office. 
 
 Mr. Davis presented a minority report in which he contended that 
 the position held by contestant was an office within the meaning of the 
 constitution. Contestant was retained for the prosecution of a number 
 of cases, and the alleged settlement had to do with only one of them. 
 Some of the cases were still pending, and contestant had not resigned 
 his appointment until some months after the beginning of the session 
 of Congress. He presented resolutions declaring the seat vacant on 
 this ground and also on the ground of corrupt influence hx Federal 
 officials. 
 
 On the case on the merits the resolutions presented by the majority 
 were passed by a vote of 163 to 56, and contestant was sworn in. 
 
 [Mobley, 7-52.] 
 
 (2) Garrison iv. Mayo. 
 
 Wheti certificate concli/.st'ce i>f prima facie right. Itlegalh/ rejecteif 
 returns. Illegal rotes. Jicj)oi't on prima facie case foi' contest'ee; on 
 case on merits for contestant. Contestant seated. 
 
 Report on «/■//;(« facie case by Mr. Lowrv; on case on merits bv 
 Mr. Turner. " 
 
 Contestee, having the certificate of election, was sworn in on the 
 first day of the session. On the second day a resolution was offered 
 referring the " certificates and all other papcr.s" to the Committee on 
 Elections, with instructions to report "which of the rival claimants 
 
FORTY-EIGHTH CONGRESS. 399 
 
 to the seat from that district has the prima facie right thereto, reserv- 
 ing to the other party the privilege of contesting the case upon the 
 merits." The next day a ^^•esolution was passed referring the above 
 resolution to the Committee on Elections, " with instructions to 
 report on the legal question involved therein." 
 
 The committee took this latter resolution as implying that the 
 House had not instructed the committee to examine other evidence 
 than the certificate, and reported a resolution declaring 
 
 That upon the legal question involved in the case of Garrison vs. Mayo, the return 
 of the governor, in the absence of anything appearing thereon or properly presented 
 in connection therewith tending to impeach it, is conclusive as to the prima facie 
 right, and that, pending the contest on the merits, the sitting member is therefore 
 in this case entitled to retain the seat. 
 
 Mr. Davis dissented from the construction given to the resolution 
 referring the case. 
 
 On the case on the merits the committee reported that contestee had 
 been certified by the State canvassers as having received a majority of 
 1 vote, but that this result had been reached by throwing out the vote 
 of one county on the ground that on the seal impressed on the return 
 the word "countj^" was written over the word "circuit" of the seal. 
 Counting this county, and also the return of an island precinct which 
 had been delayed, contestant was shown to have a majority of 72 votes. 
 The burden of proof thus shifted to contestee, and he sought to sustain 
 it by showing illegal votes for contestant sufficient to overcome his 
 majority. Some of these votes involved legal questions arising under 
 the Virginia capitation tax law and votes found in the wrong boxes. 
 The committee preferred not to decide these questions until the 
 consideration of other Virginia cases of which they were decisive. 
 Taking, however, the views of the law most favorable to contestee, and 
 looking on the evidence of the facts claimed in the light most favorable 
 to him, he had not shown enough illegal votes to overcome the majority 
 of contestant. Contestant had also charged a very large number of 
 such votes against contestee, and a consideration of the evidence would 
 probably increase his majority, but as in any case he was elected, the 
 committee did not think it necessary to examine all the evidence. The 
 committee were unanimous in their decision in favor of contestant. 
 The House agreed without division to the resolutions presented, and 
 contestant was sworn in. 
 
 [Mobley, 63-59.] 
 
 (3) Manzanares vs. Luna. 
 
 Fraud. Heport for contestant. Contestant seated. 
 
 Report by Mr. Robertson. 
 
 The notice of contest in this case was served within the time, on the 
 wife of contestee, at his home, he being absent from the Territory. 
 Other notices were sent to Washington by mail and express, but none 
 was actually served on contestee until after the expiration of the thirty 
 days. The committee held that the service was sufficient. The notice 
 charged fraud in various counties, but the testimony was confined to 
 the county of Valencia, where contestee was returned as I'eceiving 
 4,259 votes, and contestant 0. The largest previous vote in the county 
 had been 2,136, and there had been no increase in the population. 
 The Democratic party, to which contestant belonged, had always pre- 
 
400 DIGEST OF CONTESTED ELECTION CASES. 
 
 viously cast from three to six hundred votes. At this election no 
 A'(jtcs were certified for contestee by the county board, though the poll 
 books showed that he received 66. 
 
 Examining the evidence at particular precincts, the committee found 
 that the election at precincts casting a vote of 2,357 for contestee was 
 fraudulent, and that the votes must be thrown out. The pi'oof of fraud 
 in most cases consisted of proof that a much less number of votes was 
 cast than returned. The names on the poll books in some cases were 
 obviously fictitious; in some cases they were arranged in alphabetical 
 order, as if copied from some index or registration list. In one or two 
 cases the whole returns were forgeries. In one case the election was 
 held the day before the legal day. Deducting from contestee the \'otes 
 at the fraudulent polls, contestant was shown to have a majority of 938 
 votes. The committee unanimously recommended that he be seated. 
 The House agreed without division and contestant was sworn in. 
 
 [Mobley, 61-64.] 
 
 (4) Pool ■vs. Skinner. 
 
 Election to fill vacancy, held In nevj district. Majority report for 
 the validity of the election; minority report that it vjos invalid, as held 
 in the wrong district. House refused to consider case. 
 
 Majority report by Mr. Turner; minoritv report hj ]\lr. Kanncy; 
 further dissenting report by Mr. Cook. 
 
 At the time or the election of members of the Forty-eighth Con- 
 gress, the State of North Carolina had not yet been redistricted under 
 the new apportionment law and had elected eight Representatives from 
 the old districts and an additional Representative at large. ~ Walter F. 
 Pool was chosen the Representative for the First district. After the 
 election the State was redistricted and Bertie County was taken out of 
 the First district and Carteret County added to it. Subsequent to the 
 passage of this law Mr. Walter F. Pool died and the governor issued 
 writs for an election to fill the vacancy, to be held in the ne?^' First 
 district. At this election Mr. Skinner received the majority of the 
 votes. His election was contested by Mr. Charles C. Pool, his oppo- 
 nent, on the ground that the election should have been held in the old 
 district, from which Mr. Walter F. Pool had been elected. Mr. Skinner 
 was sworn in and a resolution passed directing the Committee on Elec- 
 tions to report whether he was elected from the proper district. The 
 majority of the committee reported in favor of the validity of the elec- 
 tion. At the time the election was held the law of North Carolina 
 provided that for the purpose of electing Representatives in Congress 
 the State should be divided into nine specified districts. This law 
 expressly repealed all previous laws, saving no exceptions. At the 
 time of the election the onlj' First district in legal existence was the 
 one in which the election was held. The governor had decided that it 
 should be held in this district, and, while the precedents of Congress 
 on the subject were conflicting, it was found that Congress had always 
 acquiesced in the course of the State authorities. Whichever way the 
 governor decided the question, the committee would not be inclined to 
 overthrow his decision. They accordingly recommended a resolution 
 that contestee "retain his seat without prejudice to the ultimate right 
 to the seat." 
 
 The minority held that the election ought to hf^ve been held in the old 
 
FORTY-EIGHTH CONGRESS. 401 
 
 district. If the election in the new district was allowed to stand, one 
 county would be without any Representative in Congress and another 
 county would be represented by two Representatives. The difference 
 in these two counties in this case made a difference in the political 
 complexion of the district. If the principle on which the report of 
 the majority was based was carried to its logical conclusion it might 
 produce the most absurd consequences. 
 
 The law of the State only gave the governor the power to fix the 
 ti-me of elections to fill vacancies; they were to be held in the manner 
 and places required by law. The writs and proclamations were to go 
 to the separate precincts. A Congressional district is not a separate 
 corporation, having an election machinery of its own; it is merely a 
 designation of what counties shall have the right to choose a Repre- 
 sentative. Under the precedents of the House, and a fair construction 
 of the laws of North Carolina, the counties which should have filled 
 the vacancy were the counties in which the vacancy occurred. The 
 minority were of the opinion that the election should be declared 
 invalid. 
 
 Mr. Cook filed a report agreeing in the conclusion of the majority, 
 but on different grounds. He held that the election should have been 
 held in the old district, andthat the votes cast in Carteret County, not 
 in the old district, should be rejected. But rejecting these votes, coii- 
 testee was still elected, and his election could not be invalidated by the 
 fact that the people of Bertie did not vote, for they could have voted 
 under the law if they had desired. 
 
 This case was twice called up, but each time the House refused to 
 consider it, and it was never acted on. 
 
 [Mobley, 65-78.] 
 
 (5) Wood vs. Petees. 
 
 Power of the State to superadd qualifications for IiepresentatiA)6 in 
 Congress to those prescriied hy the OovMitution of the united States. 
 Majority report for contestee; report hy Mr. Bennett for contestant. 
 Contestee retain^ the seat. 
 
 Majority report by Mr. Elliott; minority report by Mr. Bennett. 
 
 At the election for members of the Forty -eighth Congress from the 
 State of Kansas four members at large were voted for. Contestee 
 received the highest number of votes; contestant stood fifth in order. 
 He contested the election of contestee on the ground that he was in- 
 eligible under the constitution of Kansas. This constitution provided 
 that the judges of the district courts of the State should not "hold 
 any office of profit or trust under the authority of the State or the 
 United States during the term of office for which said justices or judges 
 shall be elected." Contestee was at the time of his election a judge of 
 one of the district courts of Kansas, and hence clearly came within the 
 disqualifying provisions of the constitution. But the committee held 
 that the States have no authority to prescribe other qualifications for 
 Representatives in Congress than those prescribed in the Constitution 
 of the United States, and the provision in question was consequently 
 void. Story and Kent, and the recent cases of Turney vs. Marshall and 
 Fouke vs. Trumbull were quoted as sustaining this doctrine. 
 
 ' Mr. Bennett presented an elaborate minority report, holding that 
 the enumeration of certain qualifications in the Constitution did not 
 
 H. Doc. 510 26 
 
402 DIGEST OP CONTESTED ELECTION CASES. 
 
 exclude the requirement of others, and that the requirement of these 
 additional qualifications was among the reserved rights of the States. 
 To hold otherwise would be to hold invalid provisions in the constitu- 
 tions of nearly all the States (a complete list of which was given in the 
 report), some of which were adopted before the Constitution itself. 
 The debates in the Constitutional Convention clearly showed that no 
 such limitation of the powers of the States was intended. 
 
 Mr. Peters being ineligible, Mr. Wood, being the eligible candidate 
 who received the highest number of votes, should be declared elected. 
 The principle that votes cast for an ineligible candidate were to be 
 treated as nullities was sustained bj' all the English authorities and 
 the best American precedents. 
 
 The House adopted the resolutions presented by the committee with- 
 out division, and Mr. Peters retained his seat. 
 
 [Mobley, 79-136.] 
 
 (6) O'Feeeali. vs. Paul. 
 
 Nonpayment of capitation tax. Yotes cast on tax receipts issv^ hy 
 ^''special collectors" amd paid for hy pa/rty committee. Majority report 
 for contestant; minority report for contestee. Contestamt seated. 
 
 Majority report by Mr. Lowry; minority report by Mr. Miller. 
 
 Mr. Paul received a majority of 205 votes, as cast and returned, and 
 was given the certificate; but, having been .appointed to the bench of 
 the United States court, he never qualified and sent his resignation to 
 the governor. The seat remained vacant pending the contest. Con- 
 testant claimed the seat on the ground that a number of votes larger 
 than the returned majority of contestee had been cast for him by per- 
 sons who were disqualified by reason of nonpa^'ment of the capitation 
 tax required by the laws of Virginia. The charge applied to the whole 
 district, but the only county discussed in the reports or f uUy covered 
 by the testimony was Albemarle. Here the committee found that 
 676 votes were cast for contestee b}^ persons who were on the delin- 
 quent tax list, and that 567 of these had not paid their tax, under any 
 construction of the law, and must be rejected. 
 
 Under the law the assessment lists returned to the auditor of public 
 accounts and the delinquent tax lists made out by him were required 
 to show the color of each person included in them. In Albemarle 
 County a witness testified that he had compared the poll lists of the 
 various precincts with the delinquent tax list of the county and with a 
 list of the tax receipts issued by the county clerk subsequent to the 
 prepai-ation of the said list, and had found ttat 676 persons had voted 
 whose names were on the list of delinquents, and to whom no tax 
 receipts had been issued by the clerk. As these persons had been per- 
 mitted to vote, they had presumably presented tax receipts, and these 
 receipts must have been those issued by certain -" special collectors" 
 appointed by the auditor of public accounts and their deputies. The 
 right of the auditor to appoint these collectors and of the collectors to 
 appoint deputies was in dispute. Conceding the right, it still appeared 
 that the only person empowered to issue receipts was the county clerk. 
 But expressly reserving all these questions and conceding for the pur- 
 poses of this case the legality of the appointment of the collectors and 
 their right to receive taxes and issue receipts therefor, there stiU- 
 remained the question — and on this question the committee chiefly 
 
FORTY -EIGHTH OOWaEESS. 403 
 
 rested the casvi — whether all these receipts were paid for before the 
 election. The evidence showed that they were not paid for by the 
 voters, but by the party committee of contestee's party, and that only 
 $126 in cash had been paid before the election. As this f 123 was only 
 sufficient tp pay for 119 receipts, it followed that the remaining 557 
 votes had been cast by persons for whom no tax had been paid prior 
 to the election. These votes were illegal, and ought to be deducted 
 if it could be" ascertained for whom they were cast. 
 
 The whole system of "special collectors" was shown to have been 
 one adopted by contestee's party for political purposes. The auditor 
 of public accounts was a leading manager of the party, the collectors 
 and deputies were all partisans of contestee, and in Albemarle County, 
 with a very few exceptions, it was shown that the tax receipts were 
 
 g'ven out only to known Republicans. They were paid for out of the 
 epublican campaign fund. Moreover, it was shown that substan- 
 tially all the voters voting on these receipts were colored. Twenty- 
 one witnesses of both parties and colors, representing nearly all the 
 precincts in the county, testified that the colored vote was cast with 
 substantial unanimity for contestee. Under all these circumstances 
 there could be no doubt that these votes were cast for contestee. 
 Deducting them all from his vote left a majority for contestant of 352 
 votes. Including the vote of a precinct which had been rejected by 
 the county commissioners because of irregularity in sealing, the 
 majority of contestant would still be 248. The committee accordingly 
 recommended resolutions declaring contestant elected. 
 
 The minority disagreed, and called attention to the fact that the 
 resolutions appended to the majority report only received in the com- 
 mittee the votes of six of the fifteen members. The minority held 
 that the evidence entirely failed to sustain the conclusions of the 
 majority. Without deciding the question whether the "special col- 
 lectors" were officers dejure, they were certainly officers de facto, act- 
 ing under color of legal authority. Under the precedents the fact 
 that the taxes were paid for by a political committee did not afl'ect the 
 status of the case, as the elector by accepting the receipt adopted as 
 his own the act of the person paying the tax and adopted it as of the 
 time of its performance. All this was practically conceded in the 
 majority report, and the case of contestant rested on the assertion that 
 only f 125 of the money was paid before the election. But the evidence 
 showed that $565 was paid before the election; $440 of this was in a 
 draft and was not indorsed by the collector until after the election, 
 but it was received by him some weeks before the election. The con- 
 tention of the majority report could only be sustained on the ground 
 that the money represented by this draft was not paid until it was 
 indorsed and cashed by the collector. 
 
 The testimony of only one witness was relied on to show who the 
 676 alleged delinquents were, and even he did not show who the 557 
 deducted by the majority were. He did not show that he knew any 
 of the voters, or their color; but his testimony only showed that he 
 had examined certain lists of delinquents and receipts and the poll 
 lists, and whenever he found on any poll list a name also found on the 
 delinquent list and not found on the list of receipts, he had included it 
 in his list. There was nothing to show that the persons voting and 
 those on the delinquent list were the same, and the large number of 
 similar names rendered it very uncertain. The poll lists were not 
 
404 DIGEST OF CONTESTED ELECTION CASES. 
 
 required to show, and so far as appeared did not show, the color of the 
 voters; and the testimony of this witness was based on the inference 
 that if John Brown (colored) was on the delinquent list, and a John 
 Brown voted anywhere in the county, the John Brown who voted 
 must have been colored, and must have voted on a tax receipt issued 
 by a special collector. Of the 676 persons included in this witness's 
 testimony, only 557 were deducted by the majority, and there was noth- 
 ing at all either in the testimony or in anj^ possible inference to show 
 which voters these 557 were. In four of tae twenty precincts there 
 was no testimony to show for whom the colored vote was cast, and in 
 the others it was merely the impression of the witnesses as to the vote 
 as a class. There was no evidence to show that any individual voter 
 voted illegally, or for whom any individual voter voted. It was impos- 
 sible, under the reasoning of the majority, even to state how many 
 votes were rejected in any particular precinct. The minority accord- 
 ingly recommended resolutions declaring contestant not elected. 
 
 The resolutions presented by the minority were defeated by a vote 
 of 83 to 139. 
 
 The resolutions presented by the majority were then passed without 
 division, and contestant was sworn in. 
 
 [Mobley, 137-166.] 
 
 (7) English vs. Peelle. 
 
 Recount; illegal iallots; v/adAJts infiu&ice; illegal rejection of votes. 
 Majority report for contestant; rnvnority report for contestee. Contest- 
 ant seated. 
 
 Majority report by Mr. Converse; minority report by Mr. Hart. 
 
 According to the returns contestee had a majority of 87 votes over 
 contestant. Contestant charged (1) that the tickets of contestee were 
 illegal, being printed on " plate" paper and easily distinguishable; (2) 
 that there was an error in the count of the votes in Marion County 
 whereby contestant was deprived of 99 votes; (3) that certain persons 
 from the jail and infirmary voted under undue influence and were not 
 legal voters; (4) that at one of the wards voters were prevented from 
 voting by the improper conduct of the election ofiicers; and (5) that 
 a spurious Democratic ticket, containing the name of contestee, was 
 circulated. 
 
 As it was not claimed that the last three charges, as far as sustained 
 by evidence, were sufficient to affect the result, the case may be said 
 to turn on the first two charges. 
 
 The statute of Indiana provided that — 
 
 All ballots which, may.be cast at any election hereafter holden in this State shall 
 be written or printed on plain white paper, of a uniform width of 3 inches, without 
 any distinguishing marks or other embellishments thereon except the names of the 
 candidates and the offices for which they were voted. 
 
 The Republican tickets were printed on a material known as "plate," 
 a very heavy, finely glazed paper, easily distinguished from the paper 
 ordinarily used for ballots and on which the Democratic tickets were 
 printed. These tickets, when lightly folded, would easily spring open 
 when deposited in the box, thus facilitating double voting, and were 
 generally known as "spring-back" tickets. The committee held that 
 they were not only in violation of the statute, which provided that the 
 ballots should be of '"'' plain white paper," but also in violation of the 
 
FORTY-EIGHTH CONGRESS. 405 
 
 constitution of Indiana, which provided that elections should be "by 
 ballot." An election by ballot implies the right of secrecy. 
 
 Any ticket printed on material, plain white in color though it be, yet so thick as 
 to be readily distinguished from ordinary paper in use for such purposes, is as much 
 a distinguishing mark and as much in violation of law as if it had the photograph of 
 the candidate printed on it. * * * If there were no other facts in the case than 
 those connected with the "spring-back tickets" your committee would find no diffi- 
 culty in setting aside the election, and but little in recommending the seating of the 
 contestant. 
 
 The error of 99 votes in the count of the votes of Marion County 
 was shown by the testimony of Hon. Austin H. Brown. There had 
 been a contest between two candidates for the office of sheriff of the 
 county, and Mr. Brown was one of three commissioners appointed by 
 the court to recount the votes for sheriff. At the instance of the father 
 of contestant, Mr. Brown took note of the votes cast for Congress on 
 the same ballots, and testified that as he counted it the plurality for 
 Peelle in the county was 99 less than that returned by the precinct 
 officers. 
 
 The committee held that — 
 
 The value of the recount made by him must turn upon the capacity of Mr. Brown 
 to make the count and his veracity in testifying in regard to it. If these are both 
 established, as much weight should be given his count as if he had been directed by 
 the court to make it. 
 
 Mr. Brown's character and reputation for truth and veracity were 
 shown by a number of witnesses to be very good, and he was also 
 shown to be experienced in the keeping of accounts. He had held 
 positions of trust and honor, some of them involving expertness in 
 accounts. The ballots had been kept as provided by law, and in the 
 custody of partisans of contestee, where if they had been tampered 
 with it would not have been in the interest of contestant. At the time 
 of the contest the ballots were still in existence and in official custody, 
 but contestee had not seen proper to introduce them in evidence to 
 contradict the testimony of Mr. Brown. Deducting the difference in 
 the counts of Mr. Brown and the precinct officers was alone sufficient 
 to overcome the majority of contestee and elect contestant. 
 
 It was also shown that inmates of the jail and poorhouse were taken 
 to the polls by partisans of contestee and made to vote the Republican 
 ticket. The election officers in one ward refused to receive the votes 
 of Democrats who offered the affidavits required by law, and contest- 
 ant was thereby deprived of a number of votes estimated by a witness 
 as 100. Spurious Democratic tickets containing the name of contestee 
 were also in circulation, but precautions were taken to prevent their 
 use, and only 12 of them were voted. Deducting all these votes, the 
 majority of contestant was increased. The committee accordingly 
 recommended resolutions declaring contestant elected. 
 
 The minority disagreed on all the issues. The evidence on the last 
 three points was entirely insufficient to show the state of facts alleged, 
 and if it was, the result would not be affected. The case therefore 
 turned on the question of the illegality of the Republican tickets and 
 the recount in Marion County made by Mr. Brown. The tickets were 
 conceded to have been printed on plain white paper, 3 inches in width, 
 in literal compliance with the statute of Indiana. The tickets were 
 printed on No. 2 book paper, while those of the Democrats were on 
 No. 3 book paper. If the tickets could be distinguished hj the thick- 
 ness of the paper, it was no more true that the Republican tickets 
 
406 DIGEST OF CONTESTED ELECTION CASES. 
 
 could 1 )c distinguished by their thickness than the Democratic bj' their 
 thinness. There was no way, under the law, of selecting either ticket 
 as the standard. The evidence entirely disproved the charge that the 
 selection of paper was for any fraudulent or illegal purpose. An 
 Indiana court, in a case involving the same ballots and election, had 
 decided them legal. But even if they were in violation of law, the 
 law was only directory, and the penalty should be inflicted on those 
 who violated it in procuring or receiving the tickets, and not on the 
 voters by depriving them of their votes. 
 
 The recount made by Mr. Brov.'n was utterly without validity. He 
 was a commissioner appointed by the court to conduct a recount of 
 other votes, and was neither authorized to conduct this recount nor 
 sworn to conduct it correctly. He conducted a large part of his 
 recount without the knowledge of the other two commissioners. After 
 they discovered what he was doing they also kept a count. In all the 
 precincts counted after all three had commenced to count the gains 
 were for contestee, but Mr. Brown testified that on the whole recount 
 he found a gain of 99 for contestant. He was paid by the father of 
 contestant to make the recount. He had lost or destroyed all memo- 
 randa made at the time, but presented a statement which he said had 
 been based on those memoranda. This statement did not show, and 
 he could not testify, what the vote for either candidate in any precinct 
 was or what gains or losses were made in any particular precinct. It 
 only showed a net gain of 99. At the close of the recount Mr. Brown 
 was shown to have said to his associates: 
 
 There is nothing in a recount for Mr. English. 
 
 This was a recount made chiefly in secret by an unsworn and unau- 
 thorized person under circumstances where if he had done the best 
 he could it would be very difficult to be accurate. The original memo- 
 randa were not in existence, and no intelligent statement of the vote 
 was given. Such a recount ought not to be permitted to overcome 
 the sworn and otherwise unattacked returns of the election officials. 
 The minority accordingly reported resolutions declaring contestee 
 entitled to his seat. 
 
 The resolutions of the minority were first adopted as an amendment 
 by a vote of 121 to 117. A motion was made to reconsider this vote. A 
 motion to lay this latter motion on the table was lost, after a prolonged 
 struggle, by a tie vote. The motion to reconsider was then passed by 
 a vote of 133 to 130. After several other votes the substitute recom- 
 mended by the minority was lost by a vote of 128 to 129, and the 
 original resolution of the majority carried by a vote of 180 to 127, and 
 contestant was sworn in. 
 
 [Mobley, 167-183.] 
 
 (8) Wallace ?■.«. McKinlet. 
 
 Airihiguous lallots; illegal votes. Majority report for contestant;^ 
 minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Turner; minority report by Mr. Ranney. 
 
 According to the returns, as canvassed by the State canvassing 
 board, contestee had a majority of 8 votes and was given the certifi- 
 cate. This result was arrived at by treating 23 votes returned for 
 "John H. Wallace," "Major Wallace," "Wallace," "W. H. Wal- 
 
FOETY-EIGHTH C0NGEES8. 407 
 
 lace," "W. W. Wallace," "Jonathan Wallace," "Maj. Wallace," and 
 "J. H. Wallace" as cast for different persons. Contestee, in his 
 argument before the committee, conceded that 16 of these votes should 
 be counted for contestant. This would show a majority of 8 votes for 
 contestant on the face of the returns and shift the burden of proof to 
 contestee. The other 7 votes not conceded, being those returned for 
 John H. Wallace, W. H. Wallace, and W. W. Wallace, the committee 
 thought ought also to be counted for contestant, it being shown that 
 there was no other candidate for the office by the name of Wallace. 
 In one township the evidence showed that a number of ballots bearing 
 names approximating that of contestant had not been included in the 
 count or return of the election officers. The evidence as to the num- 
 ber of these ballots was conflicting, the estimates of the witnesses 
 ranging from 2 to 15. The ballot box was introduced in evidence, 
 but it had not been kept strictly in the manner provided by law, and 
 there were reasons for suspecting that it might have been tampered 
 with. In this box were found 11 ballots for "'Major Wallace," "Ma. 
 W-Uac," "Wolac," "Mag. Wolac," "W^oUac," "Wallace," " Woloc," 
 "Mage. Wolac," and "WoUoc." The existence of this species of 
 ballots, and their failure to be counted by the judges was established 
 independently of the ballots in evidence, and the committee thought 
 that on all the evidence their number could be taken as 11, as found 
 in the box. In another precinct a ballot for " Walce" had not been 
 counted. In another a ballot voted by inadvertence with a name and 
 some figures on the back was thrown out by the judges. Recounts in 
 three townships showed a gain of 4 votes for contestant, part of them 
 being votes where the name of contestant was written in pencil, but 
 the printed name of contestee not erased. They had not been counted 
 by the election officers. Counting all these votes contestant had "a 
 plurality of 30 votes to be overcome by his competitor." Contestee 
 sought to overcome this majority by showing 55 illegal votes. Three 
 of these votes were votes cast for "J. Wales," "Jonathan H. Walser," 
 and "Jonathan H. Wallage," and counted by the election officers for 
 contestee. On the principle previously followed, and especially in 
 view of the fact that these ballots had been counted by the election 
 officers, the committee did not think they ought to be rejected. The 
 remainder of the votes were chiefly attacked for nonresidence. The 
 committee did not discuss individual cases, but announced the conclu- 
 sion that not more than eight of them were sufficiently proved. The 
 rule had always been that the illegality of a vote once received must 
 be shown "to the exclusion of all reasonable doubt." This was not 
 done in these cases. In some cases the proof how the voter voted 
 consisted of evidence of statements made by him after the election. 
 This evidence was held to be inadmissible. The majority of contest- 
 ant on the face of the returns not having been overcome by evidence, 
 the committee recommended resolutions declaring him elected. 
 
 The minority dissented from the conclusions of the committee, and 
 complained of the manner in which the majority report was written. 
 The House was at least entitled to the names of the votes found illegal 
 or sustained by the committee, and some statement or reference to me 
 evidence on which the findings were based. The minority report 
 accordingly contained a much more detailed statement of the issues 
 and evidence than that found in the majority report. 
 
 The minority held that the contestee had rightfully obtained his 
 
408 DIGEST OF CONTESTED ELECTION CASES. 
 
 certificate, and that if the canvassing board had awarded it to anyone 
 else it would have exceeded its ministerial powers. Under these cir- 
 cumstances it was — 
 
 erroneous to assume that the burden shifts from the contestant to the contestee, by 
 proving one item of his claim, which alone considered might change the result. 
 
 Taking the evidence in detail: Contestee was clearly shown to be 
 entitled to have counted for him 11 votes illegally rejected by the 
 judges of election. Of the 55 illegal votes charged by contestee, 53 
 were shown to be illegal. The ballots f or " J. Wales " and ' ' Jonathan 
 H. Walser" could certainly not be counted for contestant in the 
 absence of all evidence of the intention of the voters. Similarly in 
 regard to the ballots for "Wllac," "Wolac," "Waloe," etc., which 
 could not be counted for Jonathan H. Wallace without contradicting 
 the ballot. The evidence in regard to the other alleged illegal votes 
 is reviewed in detail in the minority report. The evidence of the way 
 in which 8 of them voted was the declarations of the voters made 
 after the election. The minority thought that under the precedents 
 this was admissible, but if it was not it would not affect the result of 
 the case. According to the conclu.sions of the minority contestee was 
 elected by a majority of 67 votes. They did not think that the closest 
 scanning of the evidence could even throw a doubt upon the correct- 
 ness of their conclusions in more than live cases, and they accordingly 
 recommended resolutions declaring contestee elected. 
 
 The resolutions recommended bj^ the minority were lost by a vote 
 of 108 to 158. The resolutions recommended by the majoritj' were 
 then passed without division, and contestant was sworn in. 
 
 [Mobley, 185-214.] 
 
 (9) Campbell vs. Moeet. 
 
 Mecovnt; irregular iallots; student votes; other illegal votes. Major- 
 ity report fm' contestant; minority report for contestee. Contestant 
 
 Majority report by Mr. Lowry; minority report by Mr. Miller. 
 
 According to the returns, contestee had a majority of 41 votes. 
 Contestant sought to overcome, and contestee sought to increase, this 
 majority by recounts of some of the ballot boxes, and proof of illegal 
 votes cast by students, other nonresidents, minors, idiots, and other 
 disqualified persons. The decisive issue was the student votes. 
 
 The ballots of certain pi-ecincts were recounted, and showed a net 
 gain for contestee of 8 votes, which were counted for him by the com- 
 mittee. In certain precincts ballots aggregating 11 were found in the 
 boxes in excess of the number of names on the poll lists. The com- 
 mittee held that the fairest course was to deduct them pro rata., which 
 would make a net loss to contestee of 3 \'otes. Two ballots which had 
 been marked by the voters were thrown out by the election officers, 
 under the statute requiring that ballots should be "without any mark 
 or device by which one ticket may be distinguished from another." 
 The committee held that these cases did not fall within the statute, and 
 counted the votes. Certain ballots containing the name of contestee 
 imperfectly spelled, and certain others on which the name of contest- 
 ant (improperly spelled) was written rnder the words, "For sheriff," 
 and the name of a candidate for sheriff written under the words, "For 
 
FOBTy-EIGHTH CONGRESS. 409 
 
 Congress," were also counted by the committee. A written ballot in 
 the Spanish language, 21- inches wide, was also counted for contestee, 
 although the statute required the ballot to be " not more than 2^ nor 
 less than 2f inches wide." The exact size was held to be immaterial. 
 Certain ballots sought to be thrown out on the ground that there was 
 not the required space of one-fifth of an inch under the last name on 
 the ticket were retained by the committee. These were all the ques- 
 tions involved in the case except that of illegal votes. 
 
 Ninety-six undergraduate college students voted in the precincts 
 where the colleges were located. Twelve voted for contestant and 84 
 for contestee. The committee held that "with few exceptions they 
 were not lawful voters." Numerous precedents, both of Congress and 
 the State courts, were cited to show that there has been a gradual 
 growth in the doctrine that very few college students are entitled to 
 vote in the college town. Applying the principles laid down in these 
 precedents, not more than 7 of the 96 students who voted were legal 
 votei's. The general testimony in regard to the institutions attended 
 by these voters showed that the students did not in any sense foi'm a 
 part of the resident population. They were credited on the college 
 catalogues to distant places. Many of them had left in the short time 
 between the election and the taking of testimony, and there was every 
 reason to suppose, from the surrounding circumstances, that students 
 in these institutions were here for the temporary purpose of education 
 alone. They had been addressed by outsiders or the faculty or sent 
 ctfarked copies of newspapers containing articles on the question of 
 the right of students to vote. They did not pay taxes or work the 
 roads. All the testimony showed that only an extremely small pro- 
 portion of the students could be entitled to vote. 
 
 A number of other votes were shown to be illegal on the ground of 
 nonresidence, and some votes of minors and idiots should be deducted. 
 Three aliens voted whose naturalization papers were illegally procured. 
 A number of other such cases was charged, but the evidence was not 
 sufficient. Making all the required deductions and additions on both 
 sides, contestant was shown to have a majority of 44 votes, and the 
 committee accordingly recommended resolutions declaring him elected. 
 
 The minority were of the opinion that contestee, instead of being 
 shown to be not elected, was shown to be elected by a larger majority 
 than that given him by the returns. Adding to his majority on the 
 face of the returns the votes admitted by contestant, contestee entered 
 the contest with an admitted majorit}' of 53 votes. Adding to this 
 majority a number equal to the number of nonresidents, idiots, minors, 
 and illegally naturalized aliens shown to have voted for contestant, the 
 majority would be increased to 126 votes. From this should be deducted 
 6 student votes. None of the charges of illegality on other grounds 
 made by contestant were sustained. 
 
 With six exceptions the minority found all the student votes to be 
 legal. All the voters were mature men, who had been long separated 
 fi'om the homes of their parents, to which they had no intention of 
 returning. They were supported by their own resources. All of 
 them had been in the precincts long enough to acquire a residence, and 
 many had voted at one or more previous elections. All of them testi- 
 fied that they had no other home. If they could not vote in the col- 
 lege towns they could not vote anywhere. The impression conveyed 
 by the majority report, that the students as a body voted, was mis- 
 
410 DIGEST OF CONTESTED ELECTION CASES. 
 
 leading. Only a very small proportion voted, and only those who after 
 a general and careful examination of the law were generally recognized 
 as legal voters. Under all the precedents the votes of the students, 
 with the six exceptions above noted, were properly received and ought 
 not to be rejected. To arrive at the result reached by the majority it 
 was necessary to throw out all these votes, and to allow every claim 
 made by contestant and none of those made by contestee. The minority 
 could not concur in such a result, and presented a resolution declaring 
 contestee elected. 
 
 The resolutions recommended by the majority were passed by a vote 
 of 139 to 62 and contestant was sworn in. 
 
 [Mobley, 215-363.] 
 
 (10) Massey w. Wise. 
 
 Nonpayment of capitation tax; votes cast on receipts issuedlry '"'"yaecial 
 collectors;'''' office of ^'"special assistant'''' to a United States district 
 attorney not a disquaUfying offlxie. Majority r^ort for contestee; 
 minority report to declare seat vacant. No action by the House. 
 
 Majority report by Mr. Elliott; minority report by Mr. Turner. 
 
 Contestant and contestee were the candidates for Representative at 
 Large from the State of Virginia; contestee received a majority of 
 5,808 votes. Contestant charged that 15,712 illegal votes were cast 
 for contestee. Nearly all these votes were attacked ou the ground 
 that the voters had not, previous to the election, paid the capitation 
 tax requii"ed by the laws of Virginia. It was shown that the State 
 auditor of public accounts had appointed collectors of delinquent taxes 
 and placed in their hands for collection the delinquent tax lists certi- 
 fied to him by the county clerks. These collectors had issued tax 
 receipts to the number of 15,000 or 16,000, and 1,200 or 1,500 of these 
 were either issued blank, without payment of taxes, or on election day. 
 The rest were paid for and issued before the election and the names of 
 the voters inserted before they left the hands of the collectors. 
 
 It was questioned whether the auditor had authority to appoint these 
 collectors or the collectors to issue receipts. But these collectors were 
 certainly acting under color of authority and the voters could not be 
 bound to know any possible defect in their title on pain of losing their 
 votes. The system had been inaugurated by contestant himself when 
 he was auditor of public accounts. The committee were of the opinion 
 that large numbers of votes, probably considerably in excess of the 
 majority of contestee, were cast on receipts issued by these collectors, 
 but that where they were paid for by the voters themselves or other 
 persons for them prior to the day of election the votes were legal. If 
 they were not the proof did not show, except in a very few election 
 districts, for whom the votes were cast. 
 
 It was claimed that contestee was disqualified from holding the office 
 of Representative in Congress by virtue of having been employed as 
 special assistant to the United States district attorney of Virginia in 
 the trial of certain cases. But the committee held that this employ- 
 ment did not constitute an "office " under the law. The words " retain 
 and employ " were used in the statute; the duties and compensation 
 depended on a contract with the attorney -general, and the employ- 
 ment was for special cases and ceased as soon as they were finished. 
 
FORTY-EIGHTH CONGRESS. 411 
 
 The committee accordingly held that Mr; Wise was duly elected and 
 not disqualified, and reported resolutions declaring him entitled to his 
 seat. 
 
 Mr. Turner presented a minority report, signed also by Messrs. 
 Converse, Davis, Bennett, Cook, and Lowry, conceding that the tax 
 system of Virginia was somewhat obscure, and that the fact that the 
 system of special collectors was originated by contestant, while not 
 bringing the case within the principle of estoppel, would embarrass a 
 decision on this point in his favor. But the position of "special 
 assistant to the district attornej'^ " ought to be held to be a disqualify- 
 ing office. It was described as an "appointment" in the statute; the 
 appointee received a commission and was required to take an oath of 
 office; he was under the supervision of the Attorney-General and sub- 
 ject to all the liabilities of a district attorney, and he was paid out of 
 the United States Treasury. This exhausted all the badges of office 
 known. The minority accordingly presented a resolution declaring 
 the seat vacant on account of this disqualification of the sitting, 
 member. 
 
 This case was never acted on by the House. 
 
 [Mobley, 365-371.] 
 
 (11) Ckaig vs. Shelley. 
 
 Precinct returns rejected iy county hoa/rds of supervisors. Report for 
 contestant. Contestant seated. 
 
 Report by Mr. Davis. 
 
 According to the returns as certified by the secretary of state, con- 
 testee had a majority of 2,724 votes. To arrive at this result the 
 county boards threw out the votes of precincts casting a vote of 8,404 
 and giving contestant a majority of 6,732. The returns were thrown 
 out for various informalities and technicalities. The committee did 
 not criticise the action of these boards, but held that where the elec- 
 tion was fairly conducted the votes ought to be counted. Out of 
 extreme caution the committee counted only such precinct returns as 
 were fully sustained by oral evidence. These gave contestant a 
 majority of 3,459 votes (if the remainder of the returns had been 
 counted his majority would have been 4,008), and the committee rec- 
 ommended that he be given the seat. 
 
 The resolutions presented were adopted without division, and con- 
 testant was sworn in. 
 
 [Mobley, 373-376.] 
 
 (12) BoTKiN VS. Maginnis. 
 
 Pollmg places illegaWy established; illegal votes. Report for con- 
 testee. Vontestee retained the seat. 
 
 Report by Mr. Ranney. 
 
 This election was contested chiefly on the ground that the polling 
 places of certain counties were illegally established, and that illegal 
 votes were cast. Most of the specifications in the notice of contest 
 lacked particularity, but, waiving this question, the committee held 
 that none of the charges were sustained. The law required the county 
 
412 DIGEST OF CONTESTED ELECTION CASES. 
 
 commissioners to establish voting places at the regular meeting imme- 
 diateljf preceding a general election. In three counties they were 
 established at a different meeting, but the committee held the law to 
 be directory merely, and as no harm had been done, but on the con- 
 trary the establishment of the precincts was in the interest of a free 
 and convenient ballot, the votes ought to stand. There was testimony 
 that some "soldiers" voted, but this designation alone was not suffi- 
 cient to show the votes illegal. In some new towns along the railroad 
 a large vote in proportion to the population was cast, but in a new 
 country this was not evidence of illegal voting. There was no evidence 
 to sustain any of the other charges, and the committee unanimously 
 reported resolutions declaring contestee elected. The resolutions^ were 
 passed by the House without division, and contestee retained the seat, 
 [Mobley, 377-379.] 
 
 (13) McLean vs. Beoadhead. 
 
 Precinct returns not counted; unregistered votes. Majority report 
 for contestee; minority report for contestant. No action oy the Souse. 
 
 Majority i-eport by Mr. Elliott; minority report by Mr. Hart. 
 
 According to the returns, Mr. Broadhead received a majority of 102 
 votes. There were six precincts not counted. According to the 
 majority of the committee these precincts gave a majority for contest- 
 ant of 61 votes. According to the minority, five of them gave him a 
 majority of 74 votes, and the proof in regard to the sixth was not suffi- 
 cient to justify counting any votes. Contestant claimed that the 
 remainder of the majority of contestee would be overcome by count- 
 ing for contestant certain "independent" tickets not received or not 
 counted by the election officers, and by counting for him the votes of 
 52 voters who offered to vote for him but were refused on the ground 
 of nonregistration. 
 
 It was claimed that 25 "independent" tickets were thrown out under 
 a mistake in the law. The majority of the committee held that the 
 proof did not definitelj' show their number, and it only showed that 
 Mr. McLean's name was on three or. four of them. These were counted 
 for him. These tickets were voted by a class of men who were very 
 independent in their voting, and the tickets were largely scratched. 
 The mere fact that Mr. McLean's name was regularly printed on these 
 tickets was not sufficient to show that they were voted for him. 
 
 The minority held that it was to be presumed that the tickets were 
 voted as printed, in the absence of proof to the contrary. 
 
 The constitution of Missouri required the legislature to pass a reg- 
 istration law applying to all cities of 100,000 inhabitants, and permitted 
 it to pass a law in certain other cases. The law as passed by the legis- 
 lature required registration and permitted no one to vote except 
 in the precinct where he was registered. A "board of revision" was 
 empowered to strike names from the registry list, under certain con- 
 ditions. The committee held that the law was constitutional. It did 
 not make registration an additional qualification, not named in the con- 
 stitution, but only made it the necessary evidence of qualification. 
 Such a provision was necessary to the enforcement of a registi-ation 
 law. Consequently none of these voters whose votes were rejected 
 had a right to vote unless they were in fact registered. Six of them 
 were shown to be on the "supplemental lists," and these the commit- 
 
FOKTY-EIGHTH CONGRESS. 413 
 
 tee counted. There was no competent evidence showing that the others 
 were registered. The only competent evidence of the incorrectness 
 of the lists in the hands of the election officers would have been the 
 original lists, which were not produced. 
 
 The majority of contestee not being overcome, the committee recom- 
 mended resolutions declaring him elected. 
 
 The minority held that at least 23 of the " Independent" tickets and 
 35 of the unregistered votes should be counted. The Independent 
 tickets were counted for contestant because his name was regularly 
 printed on them, as noted above. All the unregistered voters were 
 shown to possess all the qualifications required by the constitution. 
 It was conceded that a few of them were, in fact, registered, and should 
 be counted. But the minority held that the whole registration law 
 was unconstitutional, and the lack of registration consequently no bar. 
 Any law which in terms or in effect requires qualifications not required 
 by the constitution is unconstitutional. This law in one section speci- 
 fied certain qualifications, omitting at least one of the constitutional 
 qualifications and adding one not mentioned in the constitution, and 
 then in another section required the registration of persons possessing 
 the qualifications prescribed in the previous section — not those of the 
 constitution. The revisory board were to strike oS names of persons 
 disqualified under the provisions of the act — not under the constitu- 
 tion. The law was therefore unconstitutional, aside from the question 
 of the requirement of registration itself as an additional qualification. 
 
 But taking the law as constitutional, it could not be contended that 
 the decision of the board of revision in striking a name from the list 
 was a judicial one, from which there was no appeal, and that a person 
 whose name was improperly struck off' had no remedy. And conced- 
 ing even this point, certainly voters whose names were left oft' by 
 accident or mistake, without any affirmative action of the board of 
 revision, were not without remedy. Thirty-five of these rejected vot- 
 ers had been registered and voted at the previous election; their pos- 
 session of all the constitutional qualifications was affirmatively shown; 
 and they were not among those whose names were struck off by the 
 affirmative action of the board. Their names must have been left off 
 by accident or mistake, and the minority thought that they at least 
 should be counted. This would give a majority to contestant, and the 
 minority accordingly recommended resolutions declaring him elected. 
 
 This case was never acted on by the House. 
 
 [Mobley, 383-399.] 
 
 (14) Fkederiok vs. Wilson. 
 
 Itecovmts. MaQority report fc/r contestant; minority report for con- 
 testee. Contestant seated. 
 
 Majority repoi't by Mr. Bennett; minority report by Mr. Miller. 
 
 According to the returns, contestee was elected by a majority of 28 
 votes. This included the vote of a precinct which had been thrown 
 out by the county canvassers, but was counted by the State board 
 (it having been irregularly returned to them) as giving a majority of 
 40 for contestee. The committee found that the officers of election in 
 this precinct had been guilty of a grave irregularity in opening the box 
 and counting the votes before the time prescribed by law, thus in 
 
414 DIGEST OF CONTESTED ELECTION CASES. 
 
 effect depriving the eight or ten voters who subsequently voted of the 
 secrecy of the ballot; but the committee nevertheless counted the 
 votes. 
 
 The majority of contestee was overcome by the committee by 
 accepting the result of recounts of the ballots in a number of pre- 
 cincts. The law of Iowa did not specifically provide a manner of pre- 
 serving the ballot boxes or conducting a recount, but the boxes had 
 been safely kept by the official custodians, and were shown not to 
 have been tampered with, and the recounts were conducted with suffi- 
 cient safeguards against fraud or error. In a number of cases the 
 error was proved by other circumstances quite independent of the 
 recount. Illegal votes were charged by both sides, but the committee 
 found that the charges sustained would about balance each other, and 
 did not discuss them. Taking the result of the recounts, the majority 
 of contestee was overcome, and the committee recommended resolu- 
 tions declaring contestant elected. 
 
 The minority held that the way in which the ballot boxes had been 
 kept would not, in most cases, justify accepting a recount. In two or 
 three cases, where the error was shown independent of the recount, 
 or where the ballot box had not been opened before the recount, the 
 minority accepted its results. But contestant had hired an agent to 
 go through the district, previous to the inception of the contest, to 
 open the boxes and examine their contents. Nearly all the boxes 
 recounted had been privately opened and examined by him, and some 
 of them had been opened and privately counted two or three times. 
 At these private counts no friend of contestee was present. Most of 
 the boxes were left in rooms where they were accessible, and the bal- 
 lots of four precincts were kept loose in an un,'?ealed paper box in a 
 public room. Ballots exposed and handled as these had been could 
 not be received in evidence for a recount. 
 
 The minority were also of the opinion that a detailed examination 
 of the illegal votes would be largely to the advantage of contestee. 
 They recommended resolutions declaring contestee elected. 
 
 The resolutions presented by the majority were adopted without 
 division, and contestant was sworn in. 
 
 [Mobley, 401-419.] 
 
PORTY-lflNTH OONGBESS. 415 
 
 FORTY-NINTH CONGRESS 1885-1887. 
 
 Com/mittee on Elections. 
 
 Mr. TuKNEE, Georgia, Mr. Hall, Iowa, 
 
 LowEY, Indiana, Pettibone, Tennessee, 
 
 Robertson, Kentucky, Payne, New York, 
 
 Boyle, Pennsylvania. Hahn, Louisiana, 
 
 Hendeeson, North Carolina, Hopkins, Illinois, 
 
 Geeen, New Jersey, Ely, Massachusetts, 
 
 Ceoxton, Virginia, Doesey, Nebraska, 
 
 Mr. Maetin, Alabama. 
 
 Mr. Hahn having died, Mr. Jonathan H. Rowell, of Illinois, was 
 appointed in his place. 
 
 Ccbses. 
 
 (1) Frank H. Hurd m. Jacob Romeis, Ohio. 
 
 f2) Frank G. Campbell vs. J. B. Weaver, Iowa. 
 
 f3) Charles H. Page vs. William A. Price (two cases), Rhode Islamd. 
 
 (4) California cases. 
 
 (5) Meredith H. Kidd vs. George W. Steele, iTuMcma. 
 
 (1) HuED vs. ROMEIS. 
 
 Irregularities; iribery; illegal votes. Majority report for contestee; 
 -first minority report to declare seat vacant; secorid minority report for 
 contestant. Gontestee retained the seat. 
 
 Majority report by Mr. Turner; first minority report by Mr. Green; 
 second minority report bj' Mr. Robertson. 
 
 The contest in this case was confined entirely to the city of Toledo. 
 Contestee had a majority, according to the returns, of 239 votes. 
 Contestant asked to have two precincts in Toledo and the precinct of 
 Kelly's Island thrown out and a large number of individual votes 
 deducted as illegal. 
 
 One of the precincts was asked to be thrown out on the ground of 
 "general bribery," and for irregularities. The testimony to show 
 bribery was hearsay entirely, and only showed that a witness (whose 
 character and credibility were not of. the best) claimed to have talked 
 with persons in the precinct who told him that the general sentiment 
 was for contestant, but that it might be changed by the use of money. 
 He reported these statements to the chairman of the national Repub- 
 lican committee, and was afterwards told that the change in sentiment 
 had taken place. Another witness had heard a Republican say that he 
 had paid nineteen ticket peddlers from $3 to $10 each. Neither of 
 these witnesses knew anything about the facts except as they had been 
 told; their testimony was entirely hearsay, and even if received did 
 not show bribery. The irregularities complained of were that one of 
 the judges was not a resident of the precinct, and that there was 
 a discrepancy between the number of ballots and the number of 
 
416 DIGEST 01' CONTESTED ELECTION OASES. 
 
 names on the poll list. The former, if an irregularity, was immate- 
 rial, and the latter, although the judges irregularly made up a defi- 
 ciency of four votes on the official count by adding two votes to each 
 candidate, did not affect the result, and ought not to vitiate the poll. 
 Another precinct was asked to be thrown out on the ground that 
 tickets were handled during the count by one Bell, a Republican 
 outsider. The evidence was conflicting as to whether this took place 
 at the election in contest or not. Bell was shown to be a person of 
 good character, who had often served as election judge in the precinct, 
 and if he did assist for a time in taking the ballots from the box, he 
 could scarcely have changed them in the presence of the other judges, 
 and the irregularity ought not to vitiate the return. 
 
 The precinct of Kelly's Island was sought to be thrown out on the 
 ground of "intimidation alleged to have been attempted by one Kelly 
 toward his employees." The committee said: 
 
 We think the burden was on the contestant to prove that this attempt was effectual. 
 To justify the disfranchisement of an entire precinct on this ground, there ought to 
 be some evidence to show its influence on the election. We fail to find such evidence. 
 
 The evidence of individual illegal votes consisted of the testimony 
 of old residents of the various precincts who had examined lists of 
 voters who voted at the October election and not at the November 
 election, and who testified that they were not acquainted with the 
 voters. The committee held that this sort of evidence could not estab- 
 lish nonresidence in crowded city precincts, whatever its valine in 
 country places. Very many of the voters were naturalized foreigners, 
 with strange names, and the committee showed by examples from the 
 poll lists how differently such names might be written by different 
 clerks. This might account for the voters being unknown. But if 
 the proof were taken as sufficient, there was no evidence to show how 
 the voters voted. If such votes were to be deducted at all, it should 
 be proportionally from all the candidates, which would not affect the 
 result, and not from the candidate who received the majority in the 
 precinct where they were cast, as contended by contestant. 
 
 Messrs. Green and Hall were of the opinion that the return in the 
 First precinct above discussed was successfully impeached, and that 
 enough illegal votes were shown in other precincts to affect the result 
 after the elimination of this precinct. There being no evidence to 
 show how these voters voted, the safest course would be (according to 
 the rule laid down in McCrary) to order a new election, and they 
 accordingly recommended a resolution to that effect. 
 
 The minority (consisting of Messrs. Robertson, Henderson, Crox- 
 ton and Martin) were of the opinion that contestant was shown to be 
 elected. They were of the opinion that all the precincts attacked should 
 be excluded. The return in the first one was confessedly false, the 
 judges having returned 2 votes for each candidate in excess of the 
 count; the manner of the count was such that it was impossible for 
 anyone to be sure of the true result, and the ballots had evidently 
 been tampered with. In addition, the election here was vitiated by 
 general bribery. The evidence was hearsay and would have been 
 incompetent to show particular acts of bribery, or the guilt of a par- 
 ticular person, but " general bribery" could be shown in the same 
 way as general character, by general reputation. 
 
 The other precinct ought to be rejected because it was clearly shown 
 that an outsider, a partisan of contestee, had handled the ballots and 
 
FORTY -NINTH 0ONGEE8S. 4l7 
 
 could have tampered with them. The burden was on contestee to show 
 that this conduct had not affected the result, and he had not done so. 
 
 In Kelly's Island precinct it was clearly shown that intimidating 
 influences were brought to bear by Kelly on a sufficient number of 
 employees to affect the result. The minority thought the burden was 
 on contestee to show that this intimidation did not affect the result. 
 This not having been shown, the intimidation was so interwoven with 
 the vote that it was impossible to separate the good vote from the bad 
 and the whole must be rejected. 
 
 Of the 347 votes claimed to be illegal at least 212 were proved beyond 
 question. To eliminate them by deducting them jyro rata would not 
 affect the result in this case, and. rarely in any case, and consequently 
 the rule contended for was a rule to allow illegal voting with impunity. 
 If the rule of declaring the election void was adopted it should be 
 applied only to the precincts where the illegal voting took place. The 
 true rule should be to deduct the votes from whichever candidate had 
 a majority in the precinct where they were cast, thus leaving "each 
 candidate to take care of his own precinct." 
 
 A resolution declaring contestee not elected was lost by a vote of 
 105 to 168. The resolutions presented by the majority were then 
 passed without division, and contestee retained the seat. 
 
 [Mobley, 423-453.] 
 
 (2) Campbell vs. Weavee. 
 
 Unregistered votes; other illegal votes. Majority r^ort for contestee; 
 minority report for contestant. Contestee retained the seat. 
 
 Majority report by Mr. Hall; minority report by Mr. Payne. 
 
 According to the returns contestee had a majority of 67 votes. Con- 
 testant charged that 71 votes were cast for contestee by nonresidents, 
 aliens, minors, convicts, idiots, etc. ; that some ten individual errors to 
 his prejudice had been made by the election officers, and that 212 votes 
 had been cast for contestee in three precincts by persons who were 
 not registered and did not furnish the affidavits required by law. Con- 
 testee made countercharges of illegal voting. The case turned on the 
 question of unregistered votes, both majority and minority agreeing 
 that the other charges so far as proved could not affect the result. 
 
 The registration Taw of Iowa applied only to towns and townships 
 having a certain population. The lists were to be made out by a board 
 of registry, who were to make a list of all the qualified voters, taking 
 the assessment lists and the poll books of the previous election, and 
 adding to the names found on them the names of any other persons 
 whom they knew or who might be shown to be qualified electors. If 
 a person offered to vote whose name was not on the list he might vote 
 on presenting an "affidavit showing that he is a qualified elector, and 
 a sufficient reason for not appearing before the board on the day for 
 correcting the register," and also presenting a confirmatory affidavit 
 from a registered voter who was a freeholder. It was charged that 
 212 of these voters presented affidavits that did not comply with the 
 law, or, more specifically, that 38 were vouched for by one Charles 
 Blatner, who was not himself registered; that 31 affidavits gave no 
 reason for not being registered; that 13 gave no other reason than 
 "neglect;" that 103 gave no reason except "left off' the register;" that 
 
 H. Doc. 510 27 
 
418 DIGEST 01" CONTESTED ELECTION OASES. 
 
 46 did not state the residence of the voters, and 3 had no jurat signed, 
 and that a few were improperly vouched for. 
 
 The committee first discussed the question of the mandatory or 
 directory character of the law, and found that the precedents of Con- 
 gress and the courts in construing similar laws were conflicting. 
 
 But may not this conflict be reconciled in a manner entirely satisfactory and in 
 recognition of a just rule of interpretatijon? It is difficult to escape the conclusion 
 that where a registry law requires the production of an affidavit by an unregistered 
 elector as the condition for his voting, it is mandatory to a certain degree and for a 
 certain purpose. It is mandatory so far as to require good faith in its observance 
 and to prevent its willful evasion. But the whole scope and purpose of such a law is 
 to defeat fraud, subterfuge, and evasion, and to enable every lawful and qualified 
 voter to vote and have his vote counted in a canvass purged of all illegal votes. The 
 moment the operation of the registration defeats itself, operates to defraud the legal 
 elector and defraud him of his vote, it not only ceases to be mandatory, but is quoad 
 hoc void. * * * 
 
 When the elector offers to vote, that offer is itself an inquiry whether 
 he is registered, and if the officers accept his vote without question, 
 that acceptance is equivalent to an affirmative answer to his question. 
 
 A registry law is only reasonable when it puts the elector who does not comply 
 with it in the attitude of remaining away from the polls or refusing to vote. To reg- 
 ister or furnish an affidavit is a reasonable regulation accompanying the act of voting. 
 If this act is omitted or refused, it is equivalent to remaining away and refusing to 
 vote. But when this same statute deprives of his vote an elector who comes in good 
 faith, and is advised by the authorities and believes he is registered, and whose vote 
 is received in such manner as to deprive him of his right to rectify the omission by 
 affidavit, it violates directly the constitutional clause conferring the right, and is to 
 that extent void. 
 
 Hence we insist that a vote deposited in good faith by the elector, supposing him- 
 self to be registered, can not be rejected upon subsequent discovery that he was not. 
 But where the elector is advised or knows that he is not registered no such conse- 
 quence will follow. * * * This your committee believe to be the true rule, and 
 announce it as a principle: Where the elector, acting in good faith and honestly 
 supposing himself to be registered, deposits his vote, and the same is received by the 
 judges, it is a valid vote. But where the elector does not act in good faith and 
 knows he is not registered his vote should be rejected. 
 
 The provision of the statute in question, " no vote shall be received," 
 etc. , is only mandatory upon the election officers. A vote received by 
 them must be held to be legal until the voter is shown not to have 
 possessed the required qualifications. 
 
 But the practical question in this case was not the reception of votes 
 without afladavits, but of imperfect affidavits. If it should be conceded 
 that the general requirement of an affidavit was mandatory, still the 
 provision what declarations should be set forth in the affidavits was 
 directory only. 
 
 The distinction between the essential qualifications of the elector and the mere 
 methods or machinery of the election must not be confounded. The judges of election 
 can not by receiving a ballot give qualifications to one who is not a qualified elector. 
 
 However perfect the preliminaries, a vote cast by a person not in 
 fact qualified must be thrown out on a contest. So if the preliminaries 
 are in some respects imperfect, but the judges of election, who, though 
 not empowered to pass on the essential qualifications of the voter, ai-e 
 empowered to judge of these preliminaries, have decided them suffi- 
 cient, the proof necessary to throw out a vote is not proof of the imper- 
 fection of these preliminaries, but proof of the. actual lack of some of 
 the essential qualifications. It was not proved or even charged that 
 the voters in question did not in fact possess every legal qualification. 
 
 Most of the particular cases were involved in two groups: Those 
 
FORTY-NINTH CONGRESS. 419 
 
 vouched for by Charles Blatner, and those in which no excuse, or the 
 excuse "neglect," or "left off the register," was given. The evidence 
 against the first group was merely the fact that "C. Blatner" was 
 vouched for by Charles Blatner, from which it was inferred that 
 Charles Blatner was not registered and had vouched for himself. But 
 the registry list was not produced and there was no evidence that " C. 
 Blatner" and Charles Blatner were the same person. It was stated 
 outside the record that they were different persons, and the signatures 
 to their affidavits were in different handwritings, confirming the 
 statement. 
 
 There were only thirteen affidavits in which no excuse was given, 
 not enough to effect the result; and in any case the omission was the 
 mere accidental omission of a directory requirement. The words 
 "neglect" or "left off the register" were ample and significant 
 excuses in view of the fact that about 200 names, all of Democrats, 
 amounting to one-fourth of the voters in the precinct, were omitted 
 from the registry. So large an omission, affecting only one party, 
 could not have taken place honestly; and the words "neglect" and 
 "left off the register" referred to this conduct of the registering 
 officers. 
 
 The contestee therefore retained his returned majority, and as a 
 consideration of the individual illegal votes charged would increase 
 his majority to 117 the. committee recommended resolutions declaring 
 him elected. 
 
 The minority (Messrs. Payne, Ely, and Pettibone) reported in favor 
 of contestant. Under the plain wording of the law, and the precedents 
 in interpreting this and similar laws, it was mandatory not only on 
 the election officers, but on all concerned. The voters involved in this 
 case were not voters who voted believing that they were registered; 
 they knew that they were not registered, and presented affidavits for 
 this reason. They were bound to know the law, and hence to know 
 that it required their affidavits to contain "a sufficient reason" for not 
 having appeared on the day for correcting the registry. Without 
 deciding the question of the right of the House to reverse a decision 
 of the judges when any excuse at all was presented, the votes cast on 
 affidavits in which the excuse was entirely omitted must certainly be 
 rejected. And the words "left off the register" "furnish no excuse 
 for the nonappearance, and there is nothing for the judges to act upon. 
 It appears to us impossible to spell out an excuse from these words." 
 Rejecting these two classes of votes would show a majority for contest- 
 ant, which the minority claimed would be increased by a consideration 
 of the individual illegal votes. They accordingly recommended reso- 
 lutions declaring contestant elected. 
 
 The resolutions presented by the committee wel-e passed without 
 division and contestee retained the seat. 
 
 [Mobley, 455-474.] 
 
 (3) Page vs. Piece. 
 
 Two cases. Fi/rst case: Testimony taken out of time; leave given 
 contestee to cross-examine and rebut. Second case: Bribery; majority 
 report to deola/re seat vacant; minority report for contestee. Seat 
 decla/red vacamt. 
 
 Majority report on first case by Mr. Green; minority report by Mr. 
 Ely. Majority report on second case by Mr. Turner; minority report 
 bv Mr. Howell. 
 
420 DIGEST OF CONTE8TEB ELECTION CASES. 
 
 Contestant in this case served notice of contest, which was duly 
 replied to, but he did not take any testimony during the ninety days 
 allowed by law. Some time afterwards he served notice on contestee 
 that he would take testimony, alleging an oral agreement that testi- 
 mony might be taken at any time before the beginning of the session 
 of Congress. Ccftitestee denied the agreement, and refused to attend 
 or cross-examine witnesses. The committee reported that the testi- 
 mony taken "discloses such wholesale and open bribery, implicating 
 even the contestee personally, that the House, in justice to its own 
 dignity, must, in the opinion of the committee, take notice of the 
 same." As the contestee had not cross-examined the witnesses or 
 taken testimony in his own behalf, the committee reported a resolu- 
 tion giving him thirty days in which to summon and cross-examine the 
 witnesses already examined and to take any testimony he might desire, 
 and giving contestant ten days for rebuttal testimony. 
 
 The minority were of the opinion that the case of contestant should 
 be dismissed. They were of the opinion that the time for taking testi- 
 mony in a case ought to be extended only by leave of the House, and 
 not by agreement of the parties; but if an agreement was to be accepted 
 it should be in writing. An oral agreement was alleged in this case, 
 but it was denied, and aiEdavits of its nonexistence offered. It was 
 evident that contestant had abandoned his case, and only renewed it as 
 an afterthought. He had been elected to the State senate of Rhode 
 Island, and had served in that body during- the time for which he 
 claimed to have been elected to Congress. The minority therefore 
 recommended a resolution declaring contestant not elected. 
 
 But this did not involve an abandonment of the investigation of the 
 alleged corruption in the election, and the minority recommended a 
 resolution providing for such an investigation by a subcommittee of 
 the Committee on Elections. 
 
 The resolution presented by the majority was adopted, and testimony 
 taken under it. At the next session the committee reported in favor 
 of declaring the seat vacant. According to the face of the returns Mr. 
 Pirce had a majority of 16 votes over all his competitors. The law of 
 Rhode Island required a majority of all the votes to constitute an elec- 
 tion at the first trial. The committee called attention to this provision 
 of the law, and also to an evident error in summing up the returns, 
 which if corrected would leave contestee a majority of only 3 votes 
 over all. The committee then quoted without comment the testimony 
 of 8 witnesses who were alleged to have been bribed, and of one wit- 
 ness who was alleged to have intimidated his employees, and reported a 
 resolution declaring the seat vacant. 
 
 The minority called attention to the fact that the error in summing 
 up mentioned in the majority report was not an error, but a misprint, 
 so that contestee still started into the contest with 16 majority. The 
 8 witnesses whose testimony was quoted, even if it were proved 
 that they were all bribed, would not overcome this majority. The only 
 other charge seriously pressed was that an overseer of highways had 
 intimidated his workmen. But the evidence only showed that he had 
 asked them to vote as he did; he had never made any threats to dis- 
 charge them if they voted otherwise, and if they voted according to 
 his request it was not under any fear of discharge". If this claim were 
 sustained, it would "overthrow all labor to secure votes for one party 
 or another." Much of the testimony was entirely inadmissible under 
 
FORTY-NINTH CONGRESS. 421 
 
 any rule of law. The testimony of the 8 witnesses quoted, so far 
 as it attempted to go beyond their individual votes, was entirely hear- 
 say and inadmissible, bome of it was ex pa/rte, the witnesses having 
 testified at first without expectation of being cross-examined, and 
 having subsequently refused to appear for cross-examination. Their 
 testimony was thus discredited. Those who were cross-examined had 
 all testified at their first examination that they were Democrats and 
 had voted the Republican ticket for $3. On cross-examination they 
 contradicted themselves on material points, most of them saying that 
 they had been Republicans at previous elections, and would have voted 
 the Republican ticket at this election whether paid any money or 
 not, and that the f 3 was not paid as an inducement to vote for con- 
 testee, but to pay them for their time in coming to the polls. Some 
 of them had to come a long distance. Some of them did not know that 
 they were to receive money until after they had voted. All of the 8 
 witnesses whose testimony was quoted by the majority persistently 
 refused to give the names of the persons who had given them money. 
 A ninth.witness, who did not claim to have been bribed himself, did 
 give the names of three men who he said were giving out money at the 
 place the other men claimed to have received theirs. These three men 
 promptly swore that they had given out no money, and an attempt to 
 impeach one of them was hastily given up when the first witness called 
 spoke in his praise. 
 
 The other charges made by contestant were not seriously pressed, 
 and the minority found that there was nothing in them. Taking the 
 legal evidence for all that itcould possibly be held to show, it would not 
 overcome the sitting member's majority of 16 votes, and the minority 
 recommended a resolution declaring him elected. 
 
 The resolution granting an extension of time to take testimony was 
 carried by a vote of 117 to 78. On the case on the merits a resolution 
 declaring contestee elected was defeated by a vote of 108 to 130. The 
 resolutions declaring the seat vacant were then passed by a vote of 130 
 to 33 (not voting, 155). 
 
 [Mobley, 476-479, 489-511.] 
 
 (4) California Case. 
 
 Constitutionality of apportionment law. Report for sitting memher; 
 no action Tyy the House. 
 
 Report by Mr. Lowry. 
 
 The constitution of California required every bill to be read three 
 times before passage. The apportionment bill, under which the sit- 
 ting members were elected, had been read three times, but some 
 amendments had not. The contestants claimed that this invalidated 
 the law. The supreme court of California had recently decided this 
 question, on a petition by the contestants in this case for a writ of 
 mandamus on the secretary of state to certify them as elected. The 
 full court had decided that the petitioners were not elected, they 
 having received only a few votes, and three of the judges had held 
 that the law was constitutionally passed. The committee quoted their 
 opinions with approval, and recommended resolutions declaring the 
 sitting members elected. 
 
 There was no action by the House in these cases. 
 
 [Mobley, 481-485.] 
 
422 DIGEST OF CONTESTED ELECTION CASES. 
 
 (5) KiDD '/w. Steele. 
 
 Bribery: irregularities; illegal votes. Report for contestee. Con- 
 testee reta/vaed the seat. 
 
 Report by Mr. Henderson. 
 
 According to the returns contestee had a majority of 54 votes. Con- 
 testant asked that four precincts be thrown out, and also charged illegal 
 votes. Contestee made countercharges of illegal voting. 
 
 One precinct was a^ked to be thrown out on the ground that one of 
 the officers of election was interested in a bet, and hence disqualified. 
 But the evidence showed that he had withdrawn his interest in the bet 
 before the election, for the express reason that he was going to be an 
 inspector. There was no evidence of fraud or irregularity in the 
 election. 
 
 The other three precincts were the three precincts of the township 
 where contestee lived, and they were asked to be thrown out because 
 "the proof of bribery, of the most open and shameless purchase of 
 votes for monej^ by Steele and his agents is full and conclusive." The 
 committee quoted all the evidence on this point. Witnesses testified 
 to one or two cases of bribery in each of these precincts, one of the 
 cases being charged to be by contestee in person. But the testimony 
 was contradicted; the witnesses did not testify in such a way as to 
 attract confidence, refusing to answer questions, and contradicting 
 themselves on material points; and the witness who testified to being 
 bribed by contestee in person was shown to have afterwards confessed 
 that his whole testimony was false. 
 
 Numerous charges of illegal votes were made, but the committee 
 after a careful examination were of the opinion that the charges sus- 
 tained would about balance each other. They unanunously reported 
 resolutions declaring contestee elected. The House passed the resolu- 
 tions without division, and contestee retained the seat. 
 
 [Mobley, 513-520.] 
 
FIFTIETH CONGEESS. 423 
 
 FIFTIETH CONGRESS (D.) 1887-1889. 
 
 Committee on Elections. 
 
 Mr. Ckisp, Georgia, Mr. Mooee, Texas, 
 
 O'Ferkall, Virginia, Rowell, Illinois, 
 
 OuTHWAiTE, Ohio, HouK, Tennessee, 
 
 Bakey, Mississippi, Cooper, Ohio, 
 
 Maish, Pennsylvania, Lyman, Iowa, 
 
 Heard, Missouri, Johnston, Indiana, 
 
 Johnston, North Carolina, Lodge, Massachusetts, 
 Mr. O'Neall, Indiana. ^ 
 
 Owing to the fact that a contest was pending against his seat, the 
 Speaker requested to be relieved of the duty of appointing the Com- 
 mittee on Elections, and it was elected by the House. 
 
 (1) George H. Thobe m. John G. Carlisle, Kentucky. 
 
 (2) John V . McDuffie vs. Alexander C. Davidson, Alabama. 
 
 (3) Robert Lowry vs. James B. White, Indiana. 
 
 (4) Nicholas E. Worthington vs. Philip S. Post, Illinois. 
 
 (5) Nathan Frank vs. John M. Glover, Missouri. 
 
 {&\ Joseph D. Lynch vs. William Vandever, California. 
 
 (7) Robert Smalls vs. William Elliott, South Ca/rolina. 
 
 (8) Frank J. Sullivan vs. Charles N. Felton, California. 
 
 (1) Those vs. Carlisle. 
 
 Fraud and irregularities. Majority report for contestee; minority 
 report to reopen case. Contestee retained the seat. 
 
 Majority report by Mr. Crisp; minority report by Mr. Lyman. 
 
 Contestant served a notice of contest, charging frauds and irregular- 
 ities of various sorts, to which reply was duly made by contestee. 
 Contestant took only a few depositions, not enough to establish any of 
 his allegations, and contestee took no testimony. 
 
 Contestant moved the committee to reopen the case, alleging, and 
 furnishing affidavits to show, that he had been deceived by his attor- 
 ney, to whom he had trusted the entire conduct of his case; that the 
 returns and poll lists from a number of precincts were all in the same 
 handwriting, and consequently forgeries, and that there were certain 
 suspicious circumstances in the conduct of contestee. Contestee pre- 
 sented a large number of affidavits in denial of the allegations of 
 contestant. The committee held that as these allegations were not 
 contained in the original notice of contest, evidence in support of 
 them would not be competent even if the case were reopened. Under 
 the precedents a case ought not to be reopened unless the contestant 
 showed that he had used due diligence, and unless he made a showing, 
 by the affidavits of witnesses to facts within their own knowledge, by 
 which it would appear that on a rehearing he would probably be able 
 to make out his case. Neither of the«e conditions existed, and a care- 
 
424 DIGEST OF CONTESTED ELECTION CASES. 
 
 ful examination of the papers satisfied the committee that none of the 
 substantial allegations could be established by proof. 
 
 Taking the case, then, on the pleadings and evidence presented, the 
 only ground on which contestant could rely was the admission of con- 
 testee in his answer to the notice of contest that the officers of election 
 in a number of precincts were all Democrats. 
 
 But the law permitted the officers to be all of one party in the con- 
 tingency that there were no qualified electors of the other party resi- 
 dent in the precinct. Contestee had not admitted that this contingency 
 did not exist, and the burden of proof was on contestant to prove that 
 it did not, which he had failed to do. 
 
 Even if the proof had been made, it would not vitiate the election, 
 in the absence of proof of fraud or intimidation, as the officers were 
 at least de facto officers, whose acts affecting third parties and the 
 public must be held valid. The committee therefore recommended 
 resolutions declaring contestee elected. 
 
 The minority (Messrs. Lyman, Lodge, Houk, and Johnston) favored 
 an investigation of the case. They did not approve considering the 
 counter affidavits of contestee, but believed that when contestant had 
 made out & prima facie case by affidavits some way ought to be pro- 
 vided for permitting him to establish those facts, if he could, by legal 
 evidence. The fact that contestee did not invite investigation, but 
 opposed it, was a suspicious circumstance. The fact also jthat contest- 
 ant was a poor laboring man, ignorant of the law, ought to entitle him 
 to at least as much consideration as other citizens. 
 
 Mr. Rowell concurred in the majority report, but did not wish to be 
 understood as approving a policy of trying disputed questions of 
 fact upon ex parte testimony. But the main charge of contestant was 
 that the returns of certain precincts were all in the same handwriting 
 and consequently forgeries. The original returns themselves ivere 
 presented, and effectually refuted the charge. They were plainly in 
 different handwritings. The presentation of the original returns was 
 "legitimate, and not of the same character as a counter affidavit upon 
 disputed questions of fact." 
 
 The resolutions presented by the majority were adopted by a vote of 
 164 to 7 (not voting, 152), and contestee retained the seat. 
 
 [Mobley, 523-575.] 
 
 (2) MoDuFFiE vs. Davidson. 
 
 False counting . Majority repm't for contestee; minority report for 
 contestant. Contestee retained the seat. 
 
 Majority report by Mr. Maish; minority report by Mr. Lodge. 
 
 According to the returns contestee had a majority of 11,487 votes. 
 Contestant claimed that this large majority was due to widespread and 
 wholesale fraud committed by the election officers, consisting for the 
 most part in fraudulently^ counting for contestee ballots in fact cast for 
 contestant. Seventy precincts were attacked in the notice of contest, 
 but testimony was taken in regard to only forty-four of them. Thirty- 
 three of these were attacked on the same ground, i. e., that the election 
 officers falsely counted the votes, and the committee considered them 
 together. Under the law of Alabama the ballot boxes were carefully 
 preserved for the express purpose of permitting the ballots to be 
 
FIFTIETH CONGRESS. 425 
 
 used as evidence on a contest. The ballots were numbered to corre- 
 spond to the names on the poll list for the same reason. Contestant 
 did not claim that the election up to the moment of closing the polls 
 was unfairly or fraudulently conducted, or that the ballots had been in 
 any way tampered with, but simply that they had not been counted as 
 cast. If this was true it could be conclusively shown by a recount of 
 the ballots. The ballots were the best and only primary evidence of 
 the vote, and under the universal rule of law contestant should have 
 produced this evidence, and no other could be received so long as this 
 existed. Such evidence as was presented by contestant was, more- 
 over, inadmissible even as secondary evidence, and utterly insufficient 
 to establish the charges. But as the House did not always follow the 
 strict rules of the courts, the committee examined and considered the 
 testimony as if it were admissible. 
 
 In ten of the thirty -three precincts of this class only one witness 
 for each precinct was relied upon, and the committee quoted the testi- 
 mony of these ten witnesses. It was all of substantially the same 
 character, and to the effect that the witness issued Republican tickets 
 to colored voters at their request, watched them vote them, and kept 
 a count of the number, and found it very largely in excess of the 
 number returned for McDufEe by the election officers. The differ- 
 ences in the testimony were chiefly in the varying degrees of care 
 taken by the witnesses to know the vote. Some of them kept a list, 
 some a tally, and some only a mental count; some of them took greater 
 and some less pains to see that the tickets given out were actually 
 voted. The committee found such evidence utterly insufficient to over- 
 throw the returns. In the other twenty-three precincts under their 
 charge more witnesses were called, but their evidence was " all of the 
 same character, and simply cumulative." 
 
 There were ten other precincts in regard to which there were sepa- 
 rate specifications of fraud. The committee discussed each of these 
 in detail, and found fraud established in four of them. The evidence 
 in regard to the others was insufficient, and these four precincts only 
 reduced the majority of contestee by 2,597 votes, leaving him still a 
 majority of 8,890. If the charges in all ten of these precincts were 
 taken as sustained, it would not entirely overcome this majority. 
 
 The minority found that fraud, evidently the result of a corrupt con- 
 spiracy, was proved to such an extent as to vitiate the entire election 
 in all the counties except Lowndes, the home of contestant. On the 
 unimpeached returns of this county contestant had a large majority, 
 and he should be given his seat on the vote of this county. This dis- 
 trict was one which was purposely made to include nearly the entire 
 Republican vote of Alabama, and it was universally conceded to con- 
 tain a very large majority of Republican voters. Democrats had, 
 however, been uniformly returned to Congress from this district, their 
 seats had uniformly been contested, and the contestants had uniformly 
 been seated by Democratic as well as Republican Congresses. The 
 contestant in this case was an old and respected resident of the district 
 and received the cordial and united support of his party. He could 
 only have been defeated by fraud, and the evidence showed that he 
 was defeated by fraudulent counting of the votes. A detailed review 
 of the testimony on which this conclusion was based was given by the 
 minority, and resolutions recommended declaring contestant elected. 
 
 The resolutions, presented by the minority were lost by a vote of 122 
 
426 DIGEST OF CONTESTED ELECTION CASES. 
 
 to 144. The i-esolutions presented by the majority were then passed 
 without division, and contestee retained the seat. 
 [Mobley, 577-622.] 
 
 (3) LowRT vs. White. 
 
 Citizensliip of contestee. Majority report to declwre seat vacant; 
 minority report fm' contestee. Ccntestee retained the seat. 
 
 Majority report by Mr. Barry; minority report by Mr. Rowell; 
 further dissenting report by Mr. O'Neall. 
 
 Contestant charged that contestee had obtained his party nomina- 
 tion by bribery, and also that he had not been seven years a citizen of 
 the United States, and was consequently ineligible. The former charge 
 the committee held to be immaterial; the latter charge was sustained 
 by the committee, but not by the House. 
 
 Both parties to the contest were foreign born, but there was no 
 question of the naturalization of contestant. Contestee came to 
 America from Scotland in 1854, and took out his "first papers" in 
 1858, as shown by the record of the court. He claimed to have taken 
 out his ' ' second papers " in 1865, and to have received a certificate of 
 naturalization, but he could not find the certificate and there was no 
 record of the court to show the fact. He testified to it himself, and 
 it was also testified to by the two persons who claimed to have been 
 present at the time. The contents of the lost certificate were proved 
 by presenting copies of other certificates, all in the same form, issued 
 by the same court at about the same time. The negligence of the 
 clerk in keeping his record of naturalizations and other important 
 matters was shown, and also his habit of keeping the record of natural- 
 ization on the stubs from which the certificates were torn, and his 
 failure in some instances to fill up the stubs. The committee held 
 that the case involved three questions: (1) Can naturalization, in the 
 absence of a court record, be proved by parol testimony i (2) If so, is 
 the testimony of contestee sufiicient to establish the fact? And (3) if 
 contestee is ineligible, does this involve the election of contestant? 
 The committee answered all three questions in the negative. 
 
 A number of cases were cited to show that naturalization was a 
 judicial pi'oceeding and must be ejitered of record, and also to show 
 that this and other matters of record can be proved by the record 
 alone. A few cases might be found where other testimony was admit- 
 ted when the record was destroyed, but no case where oral testimony 
 was admitted to prove a record which never existed. It was conceded 
 that the record in this case was intact, and that if the naturalization of 
 contestee did not appear on it, it had never appeared. It was claimed 
 by contestee that the certificate which he said was given to him con- 
 stituted a record. As this certificate was not in evidence, this point 
 need not be passed upon. 
 
 But, if parol evidence was admissible, that presented by contestee 
 was insufficient to show the fact of naturalization. Only two witnesses 
 besides contestee claimed to have been present at the time; their mem- 
 ories about the proceedings were very vague and indefinite, and neither 
 of them claimed to have seen the certificate or to know whether it was 
 issued. Contestee did not attempt to prove its contents except by the 
 production of other certificates issued about the same time, a sort of 
 proof too speculative and inferential to be received. The testimony 
 of the witnesses referred to facts which made it probable that the occa- 
 
Fli'TIETH C0NQBES8. 427 
 
 sion they remembered was the filing of declaration of intention in 1858. 
 The fact that contestee, in a number of interviews and public speeches 
 in which the subject was referred to before the election, did not once 
 refer to this alleged naturalization in 1865 was a suspicious circum- 
 stance, and the fact that he had gone into an adjoining county during 
 the campaign and procured naturalization papers was still more 
 suspicious. 
 
 There ^as evidence that the question of the citizenship of contestee 
 was much discussed, pro and con, previous to the election in the news^ 
 papers and in public speeches. Tne law as laid down by the supreme 
 court of Indiana was that where the electors have notice of the ineligi- 
 bility of the majority candidate, and in some of the cases even without 
 reference to the question of notice, the candidate receiving the next 
 highest number of votes is elected. But this doctrine is laid down by 
 the courts of no other State. All the precedents of Congress and the 
 opinions of the best writers are against it, and the committee held 
 that— 
 
 To suffer a member to be seated from one State in pursuance of this view, and 
 forbid the same right on the part of a member from another State, would destroy 
 that equality and harmony in the membership of our National Legislature which the 
 founders of our Government obviously intended to establish. 
 
 The committee accordingly recommended resolutions declaring that 
 neither contestant nor contestee was elected — contestee because he 
 was ineligible, and contestant because he did not receive a majority of 
 the votes. 
 
 The minority held that the fact of naturalization might be shown by 
 parol testimony, and that in this case it was conclusively shown. The 
 certificate of naturalization given to contestee constituted a record, if 
 a record was needed, and it was the only record made by the clerk of 
 the court in this and many other cases. It having been shown to be 
 lost or destroyed, it was proper to prove its contents by oral testi- 
 mony, and this had been sufficiently done. Numerous cases were cited 
 to show that such a certificate was original evidence, and conclusive of 
 citizenship, without reference to any other record. The fact of natur- 
 alization having been proved, the contestee ought not to be deprived 
 of his citizenship by any subsequent failure of a negligent clerk to 
 make a record. Contestee had been for many years recognized an a 
 citizen of the United States, had been a soldier during the war, and 
 had been elected to Congress by a very large majority. Technical 
 rules ought not to be applied to deprive him of his seat and the people 
 of their choice. 
 
 Mr. O'Neall filed a dissenting report, agreeing with the majority 
 that contestee was ineligible, but holding that the rule of the Indiana 
 courts ought to be followed and the seat given to contestant. 
 
 The resolutions presented by the tninority were passed by a vote of 
 186 to 105, and contestee retained the seat. 
 
 [Mobley, 623-646.] 
 
 (4) WORTHINGTON V8. PoST. 
 
 Student votes; other illegal votes. Report for contestee. Contestee 
 retained the sea,t. 
 
 Report by Mr. O'Ferrall. 
 
 A large number of votes were attacked by both parties as illegal, 
 and votes were also asked to be deducted for irregularities in the bal- 
 
428 DIGEST OF CONTESTED ELECTION CASES. 
 
 lot« and for errors disclosed by recounts. It was conceded that con- 
 testant was entitled to a gain of 11 votes by recounts. A number of 
 ballots were thrown out under the statute of Illinois providing that 
 when a ballot designates more persons for an office than there are can- 
 didates to be elected it shall be counted for neither of the persons des- 
 ignated. The committee, in accordance with the decisions of the 
 supreme court of Illinois, held the statute to be mandatory and threw 
 out a number of ballots containing the name of contestant written 
 under the unerased name of contestee. A number of votes were asked 
 to be thrown out on the ground that the affidavits presented by the 
 voters in lieu of registration were not in compliance with the law. 
 The committee found them all to be in substantial compliance with the 
 law except 5, which were entirely blank; these were thrown out. A 
 number of other votes were attacked on the grounds of nonresidence, 
 minority, conviction of crime, etc. The committee discussed the evi- 
 dence in the individual cases and found that, with the changes already 
 made, there were not enough of these votes to change the result of the 
 election. The only other votes in question were the votes of 18 stu- 
 dents of Knox College and Lombard University. 
 
 The committee, in passing upon the legaUty of these votes, was of the opinion that 
 where young men had entirely severed their connection with the home of their parents, 
 and were relying upon their own resources,- efforts, and means, and had no fixed 
 determination as to their future place of abode, they were legal voters at the point 
 where these colleges were located; that to hold differently would be to deprive many 
 worthy young men of the right to vote, and disfranchise them during the years they 
 might be engaged in their laudable efforts to secure an education. 
 
 Under this pi'inciple only 4 of the votes attacked were illegal. 
 
 After a full examination of the case the committee found that the 
 majority of contestee was larger than that returned for him, and 
 unanimously reported resolutions declaring him elected. 
 
 The resolutions presented were passed by the House without 
 division, and contestee retained the seat. 
 
 [Mobley, 647-653.] 
 
 (6) Fkank vs. Glovek. 
 
 Gonstitutionality of registration law and legality of rejection of rum- 
 registered voters. Report for contestee. Contestee retained the seat. 
 
 Report by Mr. Heard. 
 
 According to the returns contestee had a majority of 100 votes. 
 Contestant sought to overcome this majority on various grounds, but 
 the only one which involved enough votes to affect the result, and the 
 only one considered by the committee, was the charge that 249 votes 
 had been illegally rejected for nonregistration. Of this list 170 names 
 had been stricken from the registration list and duly advertised accord- 
 ing to law, and the parties named had not applied to the board of 
 revision for reinstatement. It was conceded that if this fact deprived 
 them of the right to vote under the Missouri registration law, and if 
 the law was constitutional, the contestee would be entitled to retain 
 his seat. As the committee were unanimously of the opinion that the 
 facts were shown and that the law was constitutional, they did not 
 enter into an argument of the question, but reported resolutions 
 declaring contestee elected. 
 
 The resolutions presented were passed by the House without divi- 
 sion, and contestee retained the seat. 
 
 [Mobley, 655-657.] 
 
FIFTIETH CONGRESS. 429 
 
 (6) Lynch vs. Vandever. 
 
 Brihery: illegal rejection of votes. Report for contestee. Oontestee 
 Tetainsd the seat. 
 
 Report by Mr. Johnston. 
 
 Both sides charged bribery, but the committee found that neither 
 charge was sustained. The only evidence on this charge against con- 
 testee was offered during the time for rebuttal. The committee found 
 it insufficient to sustain the charge, and protested against its introduc- 
 tion as rebuttal testimony. There were some circumstances tending 
 to show that political friends of contestant may have used money to 
 infl uence the election, but if so it was without the knowledge of contestant. 
 
 The charge on which the case chiefly rested was that the county 
 clerk of Los Angeles had illegally refused to register 183 names filed 
 with him by the county assessor, which had been enrolled by persons 
 claiming to be deputy registering officers. The clerk claimed that the 
 appointments of these deputies should have been filed with him. 
 Without deciding the legal questions involved, the committee found 
 that there was no evidence snowing that enough of these voters were 
 legally qualified or offered to vote for contestant to overcome the 
 returned majority of 55 votes for contestee. The committee unani- 
 mously reported for contestee. 
 
 The resolutions presented were passed by the House without divi- 
 sion, and contestee retained the seat. 
 
 [Mobley, 659, 660.] 
 
 (7) Smalls vs. Elliott. 
 
 Illegal rejection of returns; fra/ad; iallot-hox stuffing ; intimidation. 
 Majority report for contestee; minority report for contestant. Oon- 
 testee retained the seat. 
 
 Majority report by Mr. Crisp; minority report by Mr. Rowell. 
 
 According to the returns as canvassed by the county and State can- 
 vassing boards, contestee had a majority of 532 votes. These boards 
 rejected the returns of a number of precincts giving large majorities for 
 contestant which, if counted, would have given him a majority in the 
 district. Contestant claimed that all these returns should be counted, 
 and that his majority should be further increased by counting votes 
 offered for him and illegally rejected, and votes proved to have been 
 cast for him in precincts where the returns were vitiated by ballot- 
 box stuffing and other frauds. Contestee conceded that a few returns 
 had been improperly rejected, but contended that most of them were 
 properly rejected, and that three additional returns should be rejected 
 for intimidation. 
 
 In two precincts the returns had been rejected because the ballot 
 boxes and returns had been delivered to the county canvassing board 
 by outside parties. In each case it appeared that they had been given 
 to one of the managers to return according to law, but that the man- 
 agers had left them in the possession of outsiders, by whom they were 
 delivered. The returns made by the United States supervisors were 
 in evidence, and the committee counted the vote according to these 
 returns. The returns of another precinct had been rejected on the 
 ground that none of the voters were registered. The committee sus- 
 
430 DIGEST OF CONTESTED ELECTION CASES. 
 
 tained the rejoction of this return on the ground that it was a new 
 precinct and that a new registration was necessary for it. The 
 minority favored counting it on the ground that it was not a new pre- 
 tinct, but merely a separate polling place for Federal officers. The 
 term "precinct," as defined in the South Carolina statutes, referred to 
 the territorial subdivision, not to the place where the votes were cast, 
 and only one registration was necessary for each precinct. The voters 
 were all registered and produced registration certificates, and they 
 should not be disfranchised merely because the list of voters was left 
 at the other voting place, where the election for State officers was 
 held. 
 
 Two other precincts, which were rejected on the ground that only 
 two qualified managers served, were counted by the committee, but a 
 third, where only one manager served, and he held the election in the 
 open air, under a tree, and allowed unregistered voters to vote, and 
 in other ways carried on the election in entire disregard of the law, 
 was rejected. The minority favored counting this precinct, on the 
 ground that there was nothing to impeach the fairness of the election; 
 it was held by one manager, a clerk, and a supervisor, and the voters 
 ought not to be disfranchised because of the failure of two managers 
 to qualify. Another precinct was counted by the minority, but not 
 counted by the majority on the ground that it was not mentioned in 
 the notice of contest. 
 
 Contestant asked that three precincts be thrown out and only the 
 votes proved outside the returns counted, on the ground that the bal- 
 lot boxes were stuflFed. In two of these precincts he produced evidence 
 to show that there was an excess, in one case of 80 and in the other of 
 143 votes, in the box. This excess was drawn out under the South 
 Carolina law. He then called individual voters, largely in excess of 
 the number he claimed were returned for him, who testified that they 
 voted for him. In the third precinct the election was held in one 
 room and the votes counted in another. When the box was taken 
 into the other room the doors were closed and the election officers, all 
 of whom were Democrats, remained alone with the box eight or ten 
 minutes before admitting the public. Voters were also caUed here to 
 prove the vote. The committee held that in these cases there was no 
 legal evidence what vote was counted by the county canvassers. Cer- 
 tified copies of the precinct returns could have been easily obtained, 
 and in their absence oral testimony was inadmissible to prove the vote 
 counted. The testimony of the voters to prove the vote cast was also 
 immaterial. These voters were very ignorant, and an examination of 
 their testimony showed that most of them did not know for whom 
 they voted, and some of them did not know whether they voted at all 
 for Congress. The excess of votes was " purged" under the provi- 
 sions of the law. How it came in the boxes the evidence did not 
 show. It might easily have been put there by the voters, and there 
 was nothing to implicate the judges. 
 
 The minority held that these boxes were plainly stuffed. The fact 
 that they were in the sole charge of Democratic election officers 
 during the time that they must have been stuffed implicated these 
 officials in the crime. They were evidently stuffed for the express 
 purpose of resorting to the "purging" process. Where there was no 
 proof of the vote they should be entirely rejected; otherwise they 
 should be counted according to the proof. 
 
FIFTIETH CONGRESS. 431 
 
 There were other charges of irregularities and illegal rejection of 
 votes, affecting a smaller number of votes, and also charges that the 
 failure to open certain polls was for the purpose of depriving con- 
 testant of votes, but the main questions were the propriety of the 
 rejection of Brick Church precinct, rejected by the county canvassers 
 for intimidation, and of the rejection of the precincts of Beaufort, 
 Ladies Island, and Central Schoolhouse, asked for by contestee on the 
 same ground. The majority of the committee approved the rejection 
 of Brick Church, and rejected Beaufort and Ladies Island; the minority 
 favored counting all the precincts. 
 
 At Brick Church three managers were regularly appointed — 
 
 but two of them did not serve, one because he was sick, the other because he was 
 afraid of being mobbed. Only one legally appointed manager conducted the elec- 
 tion. It further appears that three times during the day this manager was compelled 
 to close the polls for a time because of the riotous and violent conduct of contestant's 
 friends; that the poll remained closed in all about thirty minutes. 
 
 For these reasons both boards of canvassers rejected the poll, and 
 they were sustained in the rejection by the committee. The committee 
 quoted quite fully the evidence in regard to this and the other precincts 
 where intimidation was charged. The testimony quoted was to the effect 
 that large numbers of colored voters were dissatisfied with contestant, 
 on account of his having been convicted of bribe taking in 1876 and 
 on account of the alleged irregularity of his nomination, and that on 
 these accounts they were desirous of voting for contestee, but were 
 prevented by intimidating practices instigated by contestant himself. 
 These' consisted partly of social and religious ostracism, turning Demo- 
 cratic negroes out of churches and organizations, refusing to associate 
 with them, and inducing their wives to leave them, and partly of actual 
 violence, committed chiefly by women and girls, who attacked Demo- 
 cratic processions and gatherings with sticks and stones and stood 
 around the polls on election day cursing a;nd shouting. Contestant 
 himself was said to have advised these practices, especially the intimi- 
 dation by the women, in his speeches. As a result of these practices, 
 in the opinion of witnesses, many voters were kept from the polls, and 
 ma^ny others induced to vote for contestant who would otherwise have 
 voted for contestee. 
 
 In regard to Ladies' Island the committee summed up the evidence 
 as follows: 
 
 Colored men inclined to vote or expressing an intention to vote for contestee were 
 rudely assailed and violently assaulted; they were threatened with expulsion from 
 their churches; they were threatened with expulsion from the island, where many 
 of them owned land; they were threatened with a denial of sexual intercourse with 
 their wives; they were threatened with beating; they were cursed and abused; and 
 this conduct on the part of the followers of contestant began early in the campaign 
 and continued uninterruptedly down to the closing of the polls on the day of the 
 election. Smalls himself was a party to these acts, indeed he incited his followers 
 to their perpetration. 
 
 - Eejecting these precincts and deciding the other questions as above 
 indicated would show a majority for Elliott of 323 votes, and the com- 
 mittee accordingly recommended resolutions declaring him elected. 
 
 The rulings of the minority in regard to most or the individual 
 issues have already been given. The general argument of the minority 
 report was that the election was carried for contestee as the result of 
 a fraudulent conspiracy. The district was one constructed on most 
 extraordinary lines, for the avowed purpose of making it an over- 
 
432 DIGEST OP CONTESTED ELECTION OASES. 
 
 whelmingly Republican district and , making ,all the otlier districts 
 Democratic. When, in spite of this, a Democrat wa,s returned as elected 
 from the "black district," it was condemned as a wholly needless fraud 
 by the best Democratic newspapers of the State. The methods of 
 carrying the election were substantially these: All the election, regis- 
 tering, and canvassing oiBcers were Democrats; they systematically 
 prevented qualified voters from registering; rejected the votes of reg- 
 istered voters; rejected polls where the election was fairly and regu- 
 larly held; refused to open polls where there was a large Republican 
 majority, and stole two ballot boxes and stuffed at least three more, 
 removing the large excess of ballots in a manner grossly unfair to 
 contestant. 
 
 The rejection of Brick Church precinct was entirely without justifi- 
 cation. The minority cited evidence to show that there was no riot, 
 no intimidation, and that the interruption of the voting was only for 
 a few minutes, and deprived no one of his vote. It was caused by 
 good-natured noise on the outside, and also by confusion in the 
 attempt of the voters to vote too fast. In the other precincts where 
 intimidation was charged the weight of evidence was overwhelmingly 
 against the idea of intimidation, and the witnesses on the other side 
 were so inconsistent as to be unreliable. A close examination of all 
 the testimony showed that — 
 
 the only casualties that occurred in the Seventh Congressional district on account 
 of political opinion were as follows: (1) A crowd of boys and women chased three 
 men at Beaufort the evening of the day of a political demonstration, and one man 
 was slightly injured by a piece of brick with which he was struck; {%) a colored 
 man was lightly tapped with a switch by a woman; (3) a dog was shot— supposed 
 on account of the political opinions of the owner; (4) a mule was shot — supposed 
 for the same reason; both shootings by unknown parties; (5) Abraham Weston was 
 turned out of the church, but it is not clear whether for women or politics; (6) the 
 wives of Abram Scott and Eoland White, two colored Democrats, deserted them for 
 two or three weeks. 
 
 These facts were certainly not sufficient to be the basis of a charge 
 of general intimidation and to throw out the returns of three pre- 
 cincts where the election was perfectly fair and peaceable, and thus 
 change the result of the election in the district. . The minority counted 
 all the precincts, and as this, with the illegally rejected votes and the 
 other votes counted according to the findings already noted, showed 
 a majority for contestant of 2,120 votes the minority recommended 
 resolutions declaring him elected. 
 
 The resolutions presented by the minority were defeated by a vote 
 of 127 to 11:2. The resolutions presented by the majority were then 
 passed without division, and contestee retained his seat. [Mobley, 
 663-746.] 
 
 (8) Sullivan vs. Felton. 
 
 Fraud; hriiery ; intiniidation; illegalvoting; irregularities. Major- 
 ity report for contestant; minority report for contestee. No action lyy 
 the House. 
 
 Majority report by Mr. O'Neall; minority report by Mr. Rowell. 
 
 According to the returns contestee had a majority of 119 votes. 
 Contestant claimed to have much more than overcome this majority 
 by proof of fraud, bribery, intimidation, illegal voting, and various 
 irregularities. 
 
FIFTIETH CONGRESS. 433 
 
 In the eighth precinct of the Forty-sixth assembly district, in San 
 Francisco, contestant received only 2 majority on the face of the 
 returns. The Democratic majority at previous elections had gener- 
 ally been 85 or more, even when the general result in the district was 
 much more favorable to the Republicans than at this election. A 
 recount of the ballots showed a majority for contestant of 94 votes, 
 a change of 92 votes. A watcher who attended the original count in 
 the interest of contestant, testified that tickets having the name of 
 contestant Were read as having the name of contestee, and that he had 
 difficulty in securing permission to stand whcio he could see the tickets 
 as they were read. Two of the inspectors at this precinct were non- 
 residents, who had "boarded" in the precinct a few daj^s in order to 
 be appointed inspectors. It was shown also that there were three more 
 tickets in the box than names on the poll list when the polls closed, 
 and that the names of three persons who had not A'oted were then 
 added to one of the poll lists. Three other persons were recorded as 
 voting who did not vote. With all these badges of fraud the returns 
 might well be rejected and only the votes proved aliuiulc (which were 
 all for contestant) counted. But the committee thought that probably 
 the fairest coui'se was to accept the result of the recount and deduct 
 92 votes from contestee's majority. 
 
 In the city of San Jose the local Republican manager was shown to 
 have received money^at least $2.50 — to be used for election' expenses. 
 In the Fourth Ward two men hired a room in a building adjoining 
 that where the election was held, and less than 100 feet away, and spent 
 the day "influencing" voters to vote the Republican ticket, or as much 
 of it as they could be persuaded to vote. In order to show the success 
 of their work, these men scratched off the words "For amendment I" 
 at the bottom of most of these ballots with a pencil. There were 53 
 such ballots found in the box, and put in evidence. The statute for- 
 bade issuing or exposing any tickets within 100 feet of the polls, and 
 also the circulation or use of tickets "having any mark or thing thereon 
 by or from which it can be ascertained what person or class of persons 
 used or voted, it." If a ballot was "scratched" with anything but 
 "lead pencil or common writing ink" the printed name erased was to 
 be counted. Under all of tliese provisions, which, being under the 
 control of the voter, and designed to secure honesty in elections, were 
 mandatory, these 53 votes, the committee held, ought to be rejected. 
 The committee quoted all the testimony showing the above facts. They 
 also found that the "influencing" of voters in this case consisted of 
 bribing them to vote for contestee, but none of the testimony relied on 
 to establish bribery, in this or other precincts, is quoted or described 
 in either majority or minority report, except that it is generally 
 described in the minority report as "purely hearsay." There were 13 
 red marked tickets voted at another precinct which the committee 
 rejected. 
 
 In two counties, 26 or 30 paupers voted for contestee in the pre- 
 cincts where the almshouses were situated. Under the statutes of Cali- 
 fornia the residence of a pauper remained in the precinct from which he 
 came to the almshouse. These voters were registered as residing in 
 the almshouse; but under the law this could not be their residence, and 
 the committee held that they could not be presumed without evidence 
 to have come to the almshouse from the precinct in which it was 
 located. 
 
 H. Doc. 510 28 
 
434 DIGEST OF CONTESTED ELECTION CASES. 
 
 The second precinct of the Forty-eighth assembly district was not 
 returned according to law, but was counted by the board of election 
 commissioners, they deciding that the error was a mere irregularity. 
 The evidence taken before this board was before the committee, and 
 was considered by them on the ground that it was not objected to. 
 This, with other evidence not before the board, showed that of the 
 three envelopes, " No. 1," " No. 2," and " No. 3," required to contain 
 the various election papers and to be signed by a majority of the pre- 
 cinct board, "No. 1" and "No. 2" (the only ones required to be 
 returned) had been signed by the full board. The clerk of the board 
 took the envelopes to his room at night and the next day returned 
 "No. 1," properly signed, and an envelope marked " No. 3" and not 
 signed. This was refused, and he took the contents of the second of 
 these envelopes out, broke the seal of " No. 2" envelojDe, put them in 
 it, and signed his own name to it. He then attempted to get other 
 persons to sign the names of the rest of the board, but failed. The 
 committee found that these circumstances showed that the original 
 envelope in which the second package was contained had been destroyed 
 and another one substituted before the first offer of return was made. 
 These facts showed that the papers had been fraudulently tampered 
 with. Other evidence, which had not been before the board, showed 
 that this clerk had afterwards boasted of tampering with the papers, 
 and complained of not having received the money agreed to be paid 
 him for it. The committee threw out the whole vote of the precinct. 
 
 There was also general evidence of bribery in the Forty-sixth assembly 
 district and in two other districts, especially by agents and members 
 of the firm of Spreckels Brothers. The employees of the Almaden 
 Mining Company were intimidated by their employers, being carried 
 to the polls in a wagon of the company, stopped within 100 feet of the 
 polls, and given folded tickets and told to "vote them and get back to 
 their work." Similar methods were used by other employers of labor. 
 
 The minority of the committee held that the charges of intimidation 
 and bribery were entirely disproved. All the officers and employees 
 of the companies charged with intimidation were called as witnesses 
 and denied its existence. The circumstances claimed to show intimi- 
 dation were fully explained. All the testimony to the buying of votes 
 was hearsay, frequently two or three times removed. All the specific 
 charges of indirect bribery were fully contradicted and disproved. 
 The question of the precinct where the returns were irregularly 
 enveloped had been fully passed on by the board of election commis- 
 sioners, and they had properly received them. The ballots scratched 
 with red ink or pencil were not required to be thrown out under the 
 statute, but merely to be counted as if not scratched. The precinct 
 recounted might be counted according to the recount without overcom- 
 ing cpntestee's majority, but the minority held that the fairness of the 
 recount was not sufficiently shown. The original count was closely 
 watched by friends of contestant, and the attempt to show that it was 
 fraudulent, or that the watchers for contestant did not have sufficient 
 facilities, -was unsuccessful. The recount did not take place until the 
 last day for taking rebuttal testimony, when there was no opportunity 
 to produce evidence against it. The same ballots had already been 
 recounted in a local contest, with no representatives of the parties to 
 this contest to guard against fraud, and there was no testimony to 
 show that they had not been tampered with at this or some other time. 
 
FIFTIETH CONGRESS. 435 
 
 The manner of the "scratching" found, as described in the testimony, 
 showed haste and the work of a single individual. Contestant had 
 endeavored to prove the vote by calling the voters, but could only find 
 127 who voted for him — 3 less than were given him l)y the original 
 count. 
 
 The minority found that all the charges of fraud, bribery, and 
 intimidation on the part of friends of contestee were disproved or not 
 sustained. The only bribery in the case was the buying of some 70 
 votes by contestant. 
 
 When this case was called up, the question of consideration being 
 raised, the House, by a vote of 115 to 102, agreed to consider the 
 case. A motion was made to reconsider this vote. On a motion to 
 lay this latter motion on the table there was at first no quorum voting. 
 After a number of votes a quorum was secured and the motion to 
 table was passed. Many motions were made and voted upon, but the 
 House finally proceeded to other business and this case was never 
 acted upon. 
 
 [Mobley, 747-782.] 
 
436 DIGEST OF CONTESTED ELECTION CASES. 
 
 FIPTY-FIRST CONGRESS, 1889-1891. 
 
 (J(nii'iiiitt(;ii oil. Elections. 
 
 Mr. RowELL, Illinois, Mr. Comstock, Minnesota, 
 
 HouK, Tennessee, Crisp, Georgia, 
 
 Cooper, Ohio, O'Ferrall, Virginia, 
 
 Haugen, Wisconsin, Outhwaite, Ohio, 
 
 Lacet, Iowa, Maish, Pennsylvania, 
 
 Dalzell, Pennsj'lvania, Moore, Texas, 
 
 Bergen, New Jei-sey, Wilson, Missouri, 
 
 Mr. Greenhalge, Massachusetts. 
 
 Cases. 
 
 (1) Charles B. Smith vs. James M. Jackson, WeM Virginia. 
 
 (2) George W. Atkinson us. John O. Pendleton, VTM Virginia. 
 
 (3) L. P. Featherston vs. W. H. Gate, ArliunsaK. 
 
 (4) Sidney E. Mudd vv. Barnes Compton, Maryland. 
 
 (5) Frank H. Threet rs. Richard H. Clarke, Alahama. 
 
 (6) Francis B. Posey cs. William F. Parrett, Indiana. 
 
 (7) Henry Bowen vs. John A. Buchanan, Virginia. 
 
 (8) Ednmnd Waddill, jr., vs. George D. Wise, Virginia. 
 
 (9) John V. McDufEe vs. Louis W. Turpin, Ahdxuna. 
 
 (10) James R. Chalmers /'.v. James B. Morgan, J/issimipjii. 
 
 (11) John M. Langston vs. E. C. Venable, Virginia. 
 
 (12) Thomas E. Miller /«.. William Elliott, Souf/i Carolina. 
 
 (13) Fred S. Goodrich vs. Robert Bullock, Florida. 
 
 (14) James H. McGinnis vs. John D. Alderson, West Virgi/iia. 
 
 (15) .John M. Clayton vs. Clifton R. Breckinridge, A/'hinsas. 
 
 (16) Henry Kernaghan vs. Charles E. Hooker, Mississippi. 
 
 (17) James Hill vs. T. C. Catchings, Mississi/qd. 
 
 (1) Smith rs. Jackson. 
 
 Irregu2aritie.<<. and illegal rotex. Maj<irity rrpart for conti'stant; 
 niinority rrjjort for contcstee. C(n\tiistant given the scat. 
 
 Majority report Ijy Mr. Dalzell; minorit}' report by Islv. Crisp. 
 
 The issues in this case are of three sorts: (1) Which candidate was 
 elected on the face of the returns and ought to have received the cer- 
 tilitate; (2) certain precincts which contestee sought to have thrown 
 out for irregularities, and (3) illegal votes, charged by both sides. 
 
 Contestant claimed to have a majority of 12 votes on the face of the 
 returns as made to the governor. The returns, as counted by the gov- 
 ernor, showed a majority of 3 votes for contestee, and contestee claimed 
 that this count was correct. The counties whose returns were in issue 
 were Ritchie, Calhoun, and Pleasants. In Ritchie (bounty the county 
 court made two returns, the second based on a recount made at the 
 instance of contestee under the State law providing for a recount on 
 
riFTY-FIRST CONGRESS. 437 
 
 the demand of any candidate. It showed a gain of 3 votes for con- 
 testant. The county court of Calhoun County also made two returns, 
 the second, showing a gain of 2 votes for contestant, made to correct a 
 clerical error in the first. The governor counted the first returns from 
 these two counties and ignored the second. This action was sustained 
 by contestee on the ground that the county court, after the adjourn- 
 ment of the special session at which it was required to canvass the 
 result of the election, was ykinctiis officio and had no power to recon- 
 vene for any purpose connected with the election. This point anus 
 overruled by the committee. The law providing for a recount on the 
 demand of any candidate could not be construed to require that the 
 demand should be made on the day of the first count. It would not 
 in the nature of things be made until the first count was finished, and 
 to require that it be made on the day of that first count would be to 
 require a candidate to be present at the same time, in person or by 
 proxy, in every county in the district. Similarly as to the correction 
 of a clerical error: the power is inherent in every body charged with 
 the ascertainment of the result of an election to correct an error when 
 discovered and make its conclusions conform to the facts. Moreover, 
 as is shown in the discussion of the next issue, the county court in 
 West Virginia, in its jurisdiction in regard to elections, is more than 
 a mere returning board. 
 
 The returns from Pleasants Countj^ showed for Smith six hundred 
 and ninety-seven votes and for Jackson eight hundred and twe. The 
 law required the immber of votes to be set forth " in words at length." 
 The governor in a special proclamation quoted from cases in which 
 the words ''fJiovs" and ^" k>md" had been construed to mean "thou- 
 sand" and "hundred," and concluded that it would be "more in 
 consonance with adjudged cases " to add the letters " 1 ve " to the ' ' twe " 
 of the return than to change the "e" to "o." Counting the vote as 
 eight hundred and tyrelvc and counting the first and not the second 
 returns from Ritchie and Calhoun counties, gave contestee a maiority 
 of 3 votes, and the governor issued the certificate to him. 
 
 The committee held that the governor must have known that the 
 word intended was "two." The fact that the law required the 
 return to be "in words ai length," added to the fact that "twe" 
 was an unheard of abbreviation for twelve or any other number, 
 made no other conclusion possible; but if there really was any 
 ^oubt, the governor should have obtained evidence to explain the 
 ambiguity, or, failing in that, should have struck out the word as 
 meaningless and counted the vote as 800. The evidence before the 
 committee showed that the vote was in fact 802, and the governor 
 could and should have procured the same evidence. The evidenci^ was 
 a copy, certified by the clerk of the county court, of the duplicate 
 return on file in his office. It was claimed on behalf of the contestee 
 that this duplicate return was a record which the county court had no 
 power to make. A recent decision of the supreme court of A\'est Vir- 
 ginia was claimed to have established this point, but the point in ques- 
 tion the committee found to be stated as a mere dictiun, and on close 
 examination, not to be applicable to the issues of this case. The 
 county court was required to make out "separate certificates" of the 
 result,one of which was to be forwarded to the secretary of state. As 
 no provision was made for the other, it was presumably to be kept by 
 the clerk of the court with his other records. The county court, in 
 dealing with election matters, was the same body as in other matters. 
 
438 DIGEST OF CONTESTED ELECTION CASES. 
 
 If it was, as claimed by contestee, a mere returning board, d^nA functus 
 officis when its work was completed, it would not have been required 
 to convene "in special session," for a mere returning board can have 
 but one kind of session. Further, it was shown to be the uniform 
 construction put on the law of 1882 ever since its passage, by all 
 officers having to do with its execution, that the county courts should 
 keep records of their proceedings in regard to elections, and that the 
 duplicate certificates not required to be otherwise disposed of should 
 be retained by the clerk as a part of that record; and on general prin- 
 ciples any body with powers like those of the county court in West 
 Virginia must have "the power to make such record as will perpetu- 
 ate and make available its legitimate action." 
 
 Contestant being thus shown to have a majority of 12 votes on the 
 face of the returns, the burden of proof shifted to the contestee to 
 show that he had received a majority of the votes actually cast by 
 qualified voters. This he sought to do by asking that the votes of 
 eight precincts be rejected for informalities, and by charges of illegal 
 votes cast for contestant. 
 
 Three precincts were attacked because the certificate of the oath on 
 the returns was informal. In one case the oath was administered by 
 a commissioner, and in another hy a justice of the peace, who neglected 
 to subscribe their official titles after their names. In the other case 
 the three judges signed the oath, but in the printed blank certifying 
 to the administration of the oath one of the names was signed in the 
 wrong place, so that the certificate only showed on its face that the 
 oath was administered to two of the three judges who signed the oath. 
 The committee held that these informalities were not fatal to the 
 returns, as even if the oath were held to be insufficienth' proved, the 
 officers were at least officers dr facto. But it was claimed that the gen- 
 eral rule could not be applied in ^\^est Virginia, because the commis- 
 sioners of the county court were forbidden to count any return on 
 which the taking of the oath did not properly appear until they had 
 satisfied themselves by other evidence that it was in fact taken. The 
 committee presumed that they had satisfied themselves of the fact in 
 regard to these precincts before counting them. 
 
 Another precinct was attacked on the ground that no returns had 
 been made. The certificate of the vote made by the precinct officers 
 omitted the vote for Representative in Congress, but the tally sheet 
 showed the vote, and a recount of the ballots by the county court, %t 
 the instaiK'p of contestee, showed the same result as shown bv the 
 tally sheet. 
 
 Two precincts were attacked on the charge that the ballot box had 
 been left unsealed in the custody of only one judge. In one case the 
 Democratic judge had boon asleep for a short time. A Democratic 
 outsider took his place while he was asleep, and the box was in the 
 custody of the other two. In another case the box had been for a few 
 moments in the possession^pf one of the judges, with a seal over the 
 aperture, but the sliding lid not so fastened but that he might have 
 got into the box without breaking the seal. During the count the 
 officers stopped a short time to rest and the Republican judges went 
 out for a few minutes, leaving the box unsealed in the custody of the 
 Democratic judge and two Republican clerks. When they returned 
 they found that the Democratic judge had also gone out, leaving the 
 box with the clerks. In neither of these precincts was there any evi- 
 dence of fraud nor an}' circumstaiK es calculated to arouse suspicion. 
 
FIFTY-FIEST CONGRESS. 439 
 
 The other precincts were attacked because the election was not held 
 in the places established by law. In each case it affirmatively appeared 
 that the place of holding the election was generally understood, and 
 that no one had been prevented from voting by the change. 
 
 None of these informalities being sufficient to throw out the pre- 
 cincts attacked, the only question remaining was whether the contestee 
 had shown enough illegal votes cast |or contestant in excess of those 
 shown to have been cast for himself to overcome the contestant's 
 majority of 12 votes. This was the only point on which the major- 
 ity and minority differed as to the count of the votes which should be 
 made by the committee in judging the merits of the case. The minor- 
 ity agreed with the majority in regard to all the technical points on 
 which it was sought to throw out precincts — indeed, these points were 
 not seriously pressed bj' the contestee before the committee — and on 
 the question of the rulings of the governor, by which the certiiicate 
 was given to the contestee, the minority, while sustaining the legality 
 of the governor's acts, agreed that the evidence in the record in this 
 case, none of which was before the governor, showed that the actual 
 vote in each case was as claimed by contestant. 
 
 The issue being reduced to individual illegal votes, the committee 
 report laid down various propositions of law^ in regard to residence, 
 paupers, persons of unsound mind, and minors, and the evidence by 
 which votes could be shown to be illegal on these grounds. The minor- 
 ity in general agreed to these propositions, but in applying them to the 
 evidence in regard to illegal votes there were serious differences. 
 
 Contestant charged 102 illegal votes against contestee and contestee 
 127 against contestant. Of the 102 charged by contestant the com- 
 mittee found that the charges were established in 47 cases, the minority 
 that they were established in 31 cases. Of the 127 votes charged by 
 contestee the committee found that the charges were established in 19 
 cases, the minority that they were conclusively established in 66 cases 
 and less clearly established in 21 others. Eliminating these votes 
 according to the statement of the committee would increase the major- 
 ity of the contestant to 39; according to the statement of the majority 
 it would give the contestee a majority of 23. 
 
 The case was debated for several days. The resolutions presented 
 by the committee were passed by a vote of 166 to (many members 
 not voting), and Mr. Smith was sworn in. It was in connection with 
 this case that the parliamentary ruling of "counting a quorum" was 
 made for the first time. When the case was called up the question of 
 consideration was raised against it. The question being put, there 
 appeared ayes 161, noes 2, less than a quorum voting. The Speaker 
 announced the names of a large number of members who were present, 
 but had not voted, counted them as part of a quorum present, and ruled 
 that the presence of a quorum was sufficient. The House was at the 
 time without rules, and the ruling was made under general parlia- 
 mentary law. The ruling naturally excited prolonged discussion, and 
 most of the time intervening between the calling up of the election 
 case and its final disposition was taken up with the discussion of this 
 parliamentary question. On the final vote, it will be noticed, just a 
 quorum voted. 
 
 [Rowell, 9^1.J 
 
 ' Noted under the proper headings in Part II. 
 
440 digest of contested elbot'ion oases. 
 
 (2) Atkinson '/'.v. Pendleton. 
 
 Fraud and illegal votes. Majority report for contestant; minority 
 report for contest re. Contestant given the seat. 
 
 Majority report by Mr. Rowell; minority report by Mr. O'Ferrall. 
 
 On the face of the returns as at first made contestant had a majority 
 of 7 votes, but a recount of the votes showed in two precincts in Wet- 
 zel County a change of 26 votes in favor of contestee, giving him a 
 majority of 19 votes. Contestant claimed that the ballots of these two 
 precincts had been fraudulently tampered with pending the recount, and 
 that the original count correctly represented the votes as cast by the 
 voters. 
 
 The committee found this claim to be sustained by the evidence. 
 The recount of the various precincts in this county had lasted a num- 
 ber of days. After the package in which the ballots were was opened 
 on the first day it was not afterwards sealed, but was kept in the safe 
 in the clerk's ofiice. The combination to this safe was known to a 
 large number of persons having access to the ofiice, and bottles of beer 
 were kept in it for the convenience of these persons. When all the 
 precincts in the county except these two had been recounted the pre- 
 siding judge asked that the court adjourn for a few days on account of 
 a telegram which he had received saying that his wife was sick. His 
 wife was not sick; the telegram was not sent by the person whose 
 name was signed to it, and me judge afterwards testified that he had 
 known these facts at the time. When the court reconvened these two 
 precincts were recounted, and 24 Republican tickets (in addition to 
 those so counted by the precinct ofiicers) were found to have the name 
 of contestant scratched off in lead pencil and 2 to have the name of 
 contestee written in. The testimony was conflicting as to whether 
 these marks were strikingly distinct or apparently made by one person 
 with one pencil or not. The ofiicers of election all testified Ihat they 
 did not believe it was possible for so large a number of "scratched" 
 ballots to have escaped their attention. 
 
 After the result of the recount had become known, one Lee Snod- 
 grarjs, the deputy clerk in whose custody the ballots had been, entered 
 into negotiations with the Republican committee, offering for $3,000 
 cash to tell all he knew about the scratching of the ballots, and to fur- 
 nish evidence of the truth of the statement he should make. The 
 negotiations fell through, and Snodgrass then testified that he knew 
 nothing at all about the scratching of the ballots, and that he had 
 intended to deceive the Republican committee into pa3'ing him for 
 telling what he knew, under the impression that he did know some- 
 thing. There was also evidence that one Grail had been in the safe 
 while intoxicated. 
 
 The committee held that the suspicious adjournment of the court 
 and the fact that the ballots had been left unsealed in an exposed 
 place and in the custody of a man of the character of Snodgrass was 
 suflicicnt to destroy the validity of the recount. Even if the evidence 
 was insufficient positively to establish the crime or identify the crim- 
 inals, it was certainly sufficient to destroy all certainty that the bal- 
 lots were the same and in the same condition as those originally 
 counted. Without such ccrtaintj- no recount can be received to change 
 the result of the original count. 
 
 The minority were of the opinion that the circumstances of the 
 
FIFTY -PIK9T CONGEES8. 441 
 
 first count in these two precincts were such as to make it very prob- 
 able that mistakes such as those indicated by the recount should have 
 been made. Of course, the election officers believed that their count 
 was correct and would naturally testify to it. But the election officers 
 were mostly old men, unaccustomed to such work, and with poor eye- 
 sight. The count had been long and tedious, lasting more than two 
 daj's and nights, and the light at night had not always been sufficient. 
 The evidence by which it was sought to show that fraud had been com- 
 mitted by or with the connivance of the presiding judge and the deputy 
 clerk was insufficient for that purpose. The conduct of the deputy clerk 
 was reprehensible, but it did not take place until some time after the 
 recount. A recount could not be impeached on the ground of fraud 
 by evidence that one of the officers connected with it had been guilty 
 of censurable conduci some time afterwards.. 
 
 According to the finding of the committee on this question, the con- 
 testant was elected, on the face of the returns, by a majority of 7 
 votes, and the burden of proof was on the contestee. According to 
 the minority, the burden of proof remained with the contestant. 
 
 A large number of illegal votes was charged by both sides. Part of 
 these were votes cast in precincts claimed not to have been legally 
 organized, or where boundary lines were doubtful. In all these cases 
 the voters voted just as they had been in the habit of doing for years, 
 and there was no claim of fraud or harm. The majority and minority 
 agreed in counting all these votes without inquiring into the technical 
 questions raised. Eliminating these votes, there remained 178 indi- 
 ^-idual illegal votes charged by contestant against contestee, and 102 
 charged by contestee against contestant. The charges were of the 
 same character as those in the previous case of Smith vs. Jackson, and 
 the rules of law laid down by the committee in that case were accepted 
 by both sides in this, except that the minority were of the opinion 
 that general proof that a man was a Republican or Democrat, without 
 proof indicating his political preferences at the time of this particular 
 election, was not sufficient to show how he voted, because of the large 
 number of changes in political views that had taken place since the 
 previous election. 
 
 Of the 178 votes charged b}' contestant, the majority found the 
 charges sustained in 78 cases, the minority in 28. Of the 102 votes 
 charged by contestee, the msijority found the charges sustained in 
 86 cases, the minority in 54. The minority also presented a statement 
 showing that under their statement of the individual votes the charges 
 as to Wetzel County could be admitted without changing the result. 
 The findings of the committee would give contestant a majoritj^ of 49, 
 those of the minority would give contestee a majority of 85. 
 
 The case was debated for several days, and the resolutions presented 
 by the committee were adopted by a vote of 1H2 to (the Speaker 
 announcing the names of 72 members present and not voting), and Mr. 
 Atkinson was sworn in. 
 
 [Rowell, 43-74.] 
 
 (3) Featheeston v.s. Gate. 
 
 Conspiracy, /'raud, ou>len<:<\ and Intinv! datum. Maj<irify re^xirt f<ij- 
 contestant; minority rejxirt far contestee. Contestant given the seat. 
 
 Majority report by Mr. Houk; minority report by Mr. Outhwaite. 
 
 Contestant charged that the election of contestee was obtained l)y 
 
 the carrying out of a fraudulent conspiracy in Crittenden County and 
 
442 DIGEST OF CONTESTED ELECTION OASES. 
 
 by fraud in certain precincts in other counties. Contestee received a 
 majority of 1,342 votes on the face of the returns as certified to the 
 governor. This majority would be partly overcome by counting the 
 returns of certain precincts which the county clerks refused to certify 
 to the governor on account of irregularities. The remainder of the 
 majority the committee found to be overcome and a majority shown 
 for contestant by rejecting the returns of certain precincts where fraud 
 was proved and counting only such votes as were proved aliunde. As 
 the majority thus shown for contestant is only 86 votes, any precinct in 
 which the change made is greater than 86 votes may be considered a 
 decisive issue, and it is accordingly necessary to examine each precinct 
 in detail, stating the number of votes changed in each case. Taking- 
 the charges by counties: 
 
 Crittenden County. — In this county a general conspiracy was charged 
 and testimony also offered to show the manner of carrying out the con- 
 spiracy in certain specified precincts. 
 
 In support of the general charge of conspiracy the evidence (as stated 
 in the majority report) showed the following facts: Prior to July, 
 1888, the county clerk and one other county officer had been indicted 
 for drunkenness, probably under the statute providing for the removal 
 of officials shown to be drunkards. The cases were set to be tried on 
 July 12, 1888. On the morning of that day a body of 100 men, armed 
 with Winchester rifles, appeared at the county seat, took forcible pos- 
 session of all the county officers, except the sheriff (who was himself 
 one of the armed band), and forced them to go across the river to Mem- 
 phis, outside the State, threatening them with death if they attempted 
 to return. The ejected officials protested that if there were any charges 
 against them they were willing to stand trial for them, but they were 
 told that "this is a white man's country," and that the people were 
 tired of "negro domination." There were no indictments against any 
 of the officers except the two mentioned above, and no charges except 
 a suspicion that they were the authors of certain anonymous letters 
 sent to negroes and purporting to have been written by white Demo- 
 crats. This charge was denied, and no attempt was made to prove it. 
 The contestee was present while these events were taking place, and 
 his attorney, as well as the persons afterwards appointed to fill the 
 place of the removed officials, were members of the armed body. 
 
 The officers deposed were all Republicans, and the testimony showed 
 that the county was strongly Republican at all times, and especially 
 so in the year 1888, on account of large defections from the Demo- 
 cratic party to the "Wheel " or Farmers' Alliance, of which the con- 
 testant in this case was State president. Democrats, members of the 
 mob which had ejected the I'egular officers, were appointed in their 
 places, and immediately began making plans to retain possession of 
 the offices for themselves or their party. Great efforts were made to 
 prevent the Republicans from nominating a county ticket, and then 
 to prevent the candidates from accepting the nominations. Failing in 
 both of these, threats were made that the election would be carried by 
 them at all hazards. 
 
 Under the laws of Arkansas the election judges were to be appointed 
 by the county judge at the July term, and both parties were to be rep- 
 resented on each election board. The county clerk created the county 
 canvassing board, and certified the returns to the governor. The 
 county court procured ballot boxes and poll books, and the sheriff 
 
FIFTY-FIRST CONGRESS. 443 
 
 delivered them to the election officers. The Democrats, having obtained 
 forcible possession of these three offices, had obtained substantial con- 
 trol of all the election machinery of the county. The Republican 
 county judge had, previous to his removal, appointed all the election 
 judges in the county, giving both parties representation as required 
 by the law. The new county judge revoked all these appointments, 
 and appointed boards composed entirely of Democrats. The county 
 court neglected to procure ballot boxes or poll books, and the sheriff 
 did not in all cases deliver poll books to the election officers. He did 
 procure and deliver ballot boxes (one of which was in evidence in the 
 case and exhibited in the House) provided with a double slot, so 
 arranged that a ticket could apparently be deposited in the box by the 
 judge, but in reality might enter the box or not, according to the choice 
 of the judge. The new judges of election appointed failed to serve in 
 two or three strong Republican precincts, and no election was held in 
 them. When the returns were made the county clerk refused. to cer- 
 tify 7 of them to the governor on account of irregularities in the poll 
 books, in spite of the fact that the statute required the county can- 
 vassers to count and the county clerk to certify all returns received, 
 without reference to any irregularities. These circumstances the 
 committee found to be conclusive of the existence of a conspiracy to 
 carry the election by fraudulent means. 
 
 Coming to the particular precincts, the committee first counted the 
 returns of the precincts not certified by the county clerk (excluding 
 Scanlan precinct, to be hereafter mentioned). These precincts gave 
 contestant a majority of 631 votes, and deducting that number from 
 contestee's returned majority of 1,342 votes, would leave him a major- 
 ity of 811. 
 
 In Scanlan precinct the returns showed 61 votes for contestee and 
 only 2 for contestant. The testimony showed that the usual Repub- 
 lican vote for the precinct was 112 or 113, the Democratic vote 8 or 
 9, except in some county elections, when it was sometimes as high 
 as 25. A witness testified that some Republicans were afraid to 
 vote, but he saw a large number vote the Republican ticket. He 
 counted 73 as they voted, and then stopped counting. Another wit- 
 ness counted 8 or 10 as they voted. The fraudulent tin box was used, 
 and the judges were all Democrats. The committee held that this 
 evidence was sufficient to reject the return, and count only the votes 
 proved. The return, not having been certified b}^ the county clerk, 
 was not included in contestee's majority, as above stated. Counting 
 the 73 votes for contestant, and none for contestee, he having proved 
 none, requires a deduction of 73 from the 811 majority remaining for 
 contestee, leaving 738. 
 
 In Cat Island precinct the returns showed 120 votes for Featherston 
 and 88 for Cate. The testimony showed that there were 180 or 182 
 Republican voters in the township, and only 14 or 15 Democrats. The 
 Republicans turned out well, and cast a full vote. The judges, all of 
 whom were Democrats, were not sworn, and the ballot box was where 
 the voters could not see it. Of the 208 votes cast, contestee could not 
 have received more than 15, and contestant must have received at least 
 193. Making the required deduction of 146 from contestee's remain- 
 ing majority of 738 leaves 592. 
 
 In Crawfordsville the returns showed Featherston 147, Cate 88, 
 Barrett 160. The evidence tended to show that contestant had received 
 
444 DIGEST OF CONTESTED ELECTION CASES. 
 
 a larger proportion of the vote than was shown by the returns, but as 
 the evidence did not show the number of votes, and to throw out the 
 return would merely aggravate the evil, the return was allowed to stand. 
 
 In Idlewild and Furgeson no election was held. These two precincts 
 usually gave a Republican majority of about 250. But no election 
 having been held, the votes could not be counted, and the failure to 
 hold an election could merely be cited as an additional evidence of 
 conspiracy. 
 
 All the evidence in regard to Crittenden County was taken in Mem- 
 phis, Tenn., without written notice to contestee, and without being 
 cross-examined. It was objected to by contestee before the committee 
 on this ground, and the objection was sustained by the minority. The 
 majority held that the circumstances of the case were such as to justify 
 its acceptance. According to the testimony, contestant and his attor- 
 neys went to Crittenden County to take testimony, and there met 
 Mr. Berry, the attorney for contestee, who agreed to act as notary. 
 This agreement he afterwards refused to carry out; the only other 
 officers competent to take testimony refused to serve; contestant and 
 his attorney were refused accommodations; threats were made indi- 
 cating that there would be bloodshed if an attempt was made to take 
 the testinaony at that time; and contestant gave up the attempt, 
 giving contestee's attorney oral notice that the testimony would be 
 taken at a specified time and place in Memphis, Tenn., just across the 
 river. Contestee presented an ex parte affidavit from his attorney, 
 denying that he had ever been notified of the taking of the Memphis 
 testimony, and claiming that he was only employed as the attorney to 
 take testimony in Crittenden County, and that notice to take it in 
 Memphis could not have been legally served on him. 
 
 Contestee did not enter any objection to the reception of this testi- 
 mony until more than sixty days after the printing of the record, when 
 he filed his brief, and did not then offer to produce any proof that the 
 facts shown by the testimony were not true. The committee held that 
 his failure to object at the first opportunity, or to allege any substan- 
 tial defense, amounted to a waiver of the whole question of notice. 
 And the effort on the part of the attorney and friends of contestee to 
 prevent the taking of testimony in Crittenden County was also reason 
 for not requiring of the contestant strict and technical proof in regard 
 to some of the precincts of this county (e. g.. Cat Island). It was true 
 that the record of the Clerk of the House showed that the package of 
 testimony in question had not been received when the testimony was 
 opened, and that contestant was given further time to procure it, but 
 it was at least probable that contestee was notified of its character and 
 contents. 
 
 Phillips County. — There was an agreement between the parties in 
 regard to the vote of" this county, by which 132 votes were to be 
 deducted from Cate's majority. Deducting these from the 592 remain- 
 ing after the deductions made in Crittenden County leaves 460. 
 
 Gross County. — In Smith Township the returns showed 84 votes for 
 Cate and 15 for Featherston. The testimony of individual voters 
 showed that Featherston had received 29 votes. This vitiated the 
 returns. Cate not having proved any votes, lost those returned for 
 him, and Featherston gained the 14 proved for him above the num- 
 ber returned. Deducting this ditterence of 98 from the 460 majority 
 remaining to contestee leaves 362. 
 
FIFTY -FIRST COWGBESS. 445 
 
 St. Francis County. — In Franks Township Gate was returned as 
 receiving 269 votes and Featherston 131. The officers of election 
 were all Democrats, and the ballot box was removed from the presence 
 of the United States supervisor for an hour at noon and an hour 
 after the polls closed. Contestant called 195 voters whose names 
 appeared on the poll list as voting, and who testified that they voted 
 for him. This vitiated the returns. Contestee proved 112 votes, and 
 by hearsay testimony some others. Only the 112 were counted for him. 
 Making the required corrections makes a deduction of 221 from con- 
 testee's remaining majority of 362, leaving 141. 
 
 In Blackfish Township no election was Tield. Twenty-nine persons 
 attended for the purpose of voting for contestee, but the committee 
 did not count their votes. 
 
 Lee OQunty. — In Independence Township the returns showed 89 for 
 Featherston and 224 for Gate. The vote for President was: Harrison, 
 435; Gleveland, 196, showing 319 votes not counted for anyone for 
 Congress. Only one witness, Milton Powell, was examined in this 
 township. He testified that all the judges of election were Democrats. 
 He was at the polls working for Mr. Featherston; gave out 120 or 125 
 tickets with his name on, and went to the window with 92 voters whom 
 he kept count of and saw them vote the ticket. The precinct was 
 strongly Republican, and there was a good turn-out of the vote, in 
 spite of the fact that it was a rainy day. 
 
 Immediately at the close of this witness's testimony he was arrested for 
 perjury in testifying that he saw 92 votes cast for contestant, in the face of 
 the returns showing only 89, and put under $1,000 bonds. The attorney 
 for the contestee proclaimed that he would similarly cause the arrest 
 of any other witnesses testifying falsely. No more testimony was 
 taken in this township, but witnesses were examined in othei' places 
 showing a state of intimidation, and that the arrest of Milton Powell 
 had deterred others ^rom testifying. The committee held that con- 
 testee's attorney by his own act having prevented the testimony of the 
 voters, or other witnesses, from being taken, contestee could not be 
 heard to object to the sufficiency of the testimony. The testimony 
 showed that more votes were cast for contestant than were returned 
 for him, and the returns were consequently impeached. Giving to 
 contestant the 3 votes proved above the number returned, and deduct 
 ing from contestee the votes returned for him (he having proved 
 none), would make a deduction of 227 votes from the 141 majority still 
 remaining for contestee, and show a majority for contestant of 86 
 votes. 
 
 It was objected that contestant had conceded in his notice that con- 
 testee had received 224 votes, and consequently contestee could not be 
 required to produce any proof of his having received that number. 
 This point was overruled by the committee. The so-called concession 
 in the notice of contest was coupled in the same clause with a claim 
 that contestant had received 397 votes, and contestant asserted that 
 but for the suppression of testimony he would have been able to prove 
 the whole 397. Contestant could not be bound by the statement of 
 the vote of contestee in his notice without also conceding to him the 
 vote claimed for himself in the same clause. Moreover, contestee 
 had denied both items of the clause in question, claiming that he had 
 received 244 votes instead of 224. The pleadings, therefore, did not 
 amount to a stipulation of the vote. Besides, even if the clause in 
 
446 DIGEST OF CONTESTED ELECTION CASES. 
 
 question were to be construed as a concession, it was not a concession 
 that contestee had received 324 legal votes. 
 
 In the rainoi'ity report arguments were advanced to show the insuf- 
 ficiency of the evidence in regard to several precincts where the 
 majority report did not claim that it was sufficient. (It is stated in 
 the minority report that the members signing it had had no oppor- 
 tunity of seeing the majority report before preparing their own.) 
 These precincts will not be noticed. Taking up the other charges in 
 the order in which they are treated in the above outline of the majority 
 report: 
 
 Crittenden County. — All the testimony taken in Memphis in regard 
 to Crittenden County was held by the minority to be inadmissible for 
 the reasons noted above. The contestee had had no opportunity to 
 object to it before filing his brief, as the package containing it had not 
 been received at the time the testimony was opened in the presence of 
 the parties, and was afterwards printed without his knowledge. There 
 was no pretense that the written notice required by law had been 
 given, and the attorney for contestee denied that he had been given 
 any notice. The testimony was ex parte of the worst sort. Every 
 advantage had been taken by leading questions and otherwise of the 
 absence of contestee, and the whole testimony was of a character 
 utterly unworthy of credit, even if admitted. But taking it as if it 
 were admissible, the testimony in regard to several precincts not 
 claimed in the majority report was quoted and discussed, and most 
 of the testimony in regard to Scanlan and Cat Island precincts, where 
 the majority found the charges sustained, was quoted with the com- 
 ment that it was utterly insufficient. 
 
 Phillips County. — There was an agreement in regard to this county, 
 as stated above. 
 
 Cross County. — No foundation was laid, by proving fraud or sus- 
 picious circumstances, for calling the individual voters of Smith Town- 
 ship to prove the vote. The 29 voters called were examined outside 
 the county, though there was no proof that they could not as well have 
 been examined in the county. Most of them could not read, and an 
 examination of their testimony showed that most of them did not know 
 for whom they voted for Congress. 
 
 St. Francis County. — In Franks Township the individual voters 
 were also called without laying a proper foundation. The reason the 
 judges were all Democrats was that the regularly appointed officers 
 failed to appear in time, and the officers were selected from such 
 electors as were present. The box was removed from the presence of 
 one of the United States supervisors at noon, but he had the key, and 
 it would have been practically impossible under the circumstances to 
 tamper with it. Its whereabouts was accounted for during every 
 moment, and all the officers of election testified that no fraud was 
 committed. The supervisor testified that the election was quiet and 
 fair, and no fraud was committed in receiving or counting the votes. 
 An examination of the testimony of the 195 individual voters called 
 by contestant showed that many of them had no knowledge for whom 
 they voted for Congress. Eliminating those whose testimony was not 
 clear and definite there would remain even less than were credited to 
 contestant by the returns. 
 
 In Blackfish Township the testimony showed that the failure to hold 
 an election was not due to any fraudulent purpose. 
 
FIFTY-KIE8T CONGRESS. 447 
 
 Lee County. — In regard to Independence precinct, only one witness, 
 Milton Powell, was examined under notice. His testimony did not 
 show anything suspicious in regard to the conduct of the election, and 
 did show that prominent Republicans at this precinct were working for 
 Mr. Cate, thus accounting for the discrepancy between the Presiden- 
 tial and Congressional vote. The circumstances surrounding the elec- 
 tion were such as to make it easy for witness to have made a mistake 
 of 3 votes in his count of the number of votes cast for contestant. 
 He was arrested at the close of his testimony for perjury, and it was 
 announced that any other witnesses testifying falsely would be simi- 
 larly arrested. But surely it would not be claimed that witnesses 
 could not testify freely unless they were given to understand that it was 
 no crime to commit perjury in a contested-election case. Moreover, 
 the notice to take testimony did not include any other name than Mil- 
 ton Powell's, and there was nothing to show that contestant had 
 intended to examine any other witnesses.^ i 
 
 The other witnesses, examined out of the coknty and without notice, 
 did not attempt to show anything against the election, but confined 
 themselves to describing a state of intimidation on account of Milton 
 Powell's arrest, which would prevent witnesses from testifying. The 
 testimony of Milton Powell was certainly not enough to overthrow the 
 returns, and they should stand. 
 
 Allowing all that the contestant claimed in Phillips County, and 
 counting the uncertified returns from Crittenden County, would still 
 leave a majority of 595 for contestee, which could not be overcome 
 even by the most extreme concessions in regard to other charges. 
 
 A discussion of the testimony in a somewhat different manner from 
 that of the report, and showing a larger majority for contestant, will 
 be found in a speech by Mr. Dalzell, on page 1912 of the Record. The 
 case was debated from March 1 to 6, 1890, and the resolutions presented 
 by the committee were adopted by a vote of 145 to 135 and Mr. 
 Featherston was sworn in. 
 
 [Rowell, 75-146.] 
 
 (4) MUDD vs. COMPTON. 
 
 Irregularities, illegal votes, and intimidation. Majority report for 
 contestant; minority report for contestee. Contestant given the seat. 
 
 Majority report by Mr. Cooper; minority report by Mr. Moore. 
 
 Contestant claimed to have been elected on the face of the returns, 
 and that his majority would be increased by counting for both par- 
 ties the votes of qualified voters who had offered to vote for them 
 and been refused by the election officers. He also claimed to have 
 been deprived of 175 votes in one precinct by violence and intimida- 
 tion. The last charge, if sustained, would be decisive of the case in 
 his favor; if it were not sustained, the decisive issue, as claimed in 
 debate, was the charge that an error of 28 votes had been made in 
 summing up the returns from Calvert County. 
 
 ^ This is a mistake (as was shown in debate) . In the original manuscript of the tes- 
 timony^his notice to take testimony is the usual printed form; that the testimony of 
 the " persons whose names appear on the attached sheet" would be taken. But the 
 "attached sheet" is missing, and there is nothing to show whether it contained the 
 names of others than Milton Powell or not. The notary taking this testimony had 
 been killed, and the testimony was forwarded by his administrator,' which probably 
 accounts for the loss of this sheet. 
 
448 DIGEST OF CONTESTED ELECTION CASES. 
 
 The county returns of Calvert County, as certified to the governor, 
 showed a total of 1,138 votes for contestant. Certified copies of the 
 precinct returns, on which the county return was based, showed in 
 the aggregate 1,166 votes for contestant. The return judges of all 
 the precincts were called, and testified that the cei'tified copies of the 
 precinct returns in evidence were correct copies of the returns as 
 made out and delivered b}^ them. A newspaper editor testified that 
 he had copied the returns for his paper on the day they were made, 
 and they footed up 1,166 for contestant. The deputy clerk who 
 footed up the returns for the county canvassers testified that he 
 had made a mistake. The county ch^rk testified that as soon as he 
 noticed in the papers that the county returns gave only 1,138 votes 
 for contestant he wrote to the governor, saying he believed a mistake 
 had been made and asked permission to correct it. No attempt was 
 made to prove that any of the precinct returns had been tampered 
 with. The committee held that the action of the county canvassers in 
 footing up the totals of the precinct returns and certifying the result 
 to the governor was a purely ministerial act. It was presumed that 
 the addition would be performed correctly, but if a mistake was shown, 
 as in this case, by the pi-ecinct returns themselves, the presumption of 
 correctness was rebutted, and the vote should be counted as shown by 
 the precinct returns. 
 
 The minority held that the result as found by the county canvassers 
 -wdiS prima facie correct, and must stand until overthrown by competent 
 evidence. The evidence in this case was insufiicient. The correct- 
 ness of the copies of the precinct returns was only shown by the 
 memorjf of the judges of election some months afterwards. The law 
 required two sets of returns to be made out by different clerks; one 
 set to be deposited with the county clerk and the other sent to the 
 governor. Certified copies of only one set in the county clerk's office 
 were produced. In one of these returns the vote was written in figures, 
 instead of words as required by law. It would have been easy to 
 tamper with this return. The minority accordingly found that there 
 was nothing to impeach the correctness of the total of the votes in this 
 county as ascertained and certified by the county canvassing board. 
 
 Certain precinct returns had not been certified to the governor, 
 because they were locked in the ballot boxes, where the county- canvassers 
 could not get them. The committee were unanimous in counting these 
 returns. Counting these returns, and the vote of Calvert County 
 according to the precinct returns, and giving to contestee 1 vote cast 
 for "Compton" and to contestant votes castfor "S. E. Mudd," "S. N. 
 Mudd," "Mudd," and 1 ballot on which his name appeared twice, 
 would give the contestant a plurality of 2 votes on the face of the 
 returns and shift the burden of proof to contestee. The minority, not 
 counting the last-mentioned ballot for contestant nor the 38 votes in 
 Calvert County, left the majority on the face of the returns with 
 contestee. 
 
 The votes of certain precincts had been recounted b;^' contestee in 
 the contest under the provisions of the State law. Contestant lost 21 
 votes by the recount. The majority ^\'ere doubtful as to the certainty 
 of the identity of the ballots, but accepted the results of the recount. 
 The minority were of the opinion that the identity of the ballots was 
 conclusively shown. 
 
 The individual votes in issue were of three classes: (1) Voters whose 
 
FIFTY-FIRST CONGRESS. 449 
 
 votes were refused on the ground that some one else had previously 
 ' voted on the same name; (2) voters who had been registered and 
 whose names were on the original registry list, but omitted from or 
 incorrectly copied on the copy of the list furnished to the election 
 judges, and (3) those whose votes had been rejected because of real or 
 assumed doubts as to their identity. The committee held in regard to 
 (1) that it was bad enough for a person who had no right to vote to 
 get his vote in; it would be worse if thereby a legal voter was pre- 
 vented from voting; (2) qualified and registered voters should have 
 their votes counted on a contest, even where the judges under the law 
 were required to reject their votes on account of the omission of their 
 names from the copy of the registry at the polls; (3) where the 
 identity of the voter was clearly proved, his vote should be counted. 
 The minority held that votes of tne first class could not be counted; 
 that only such votes of the second class as should have been received 
 by the election oflacers — i. e. , those whose names appeared either cor- 
 rectly or idem sonans on the copy of the registry list in the hands of 
 the judges — could be counted; and that the proof in regard to the third 
 class was in most cases insufficient. 
 
 Applying the rules adopted by the committee, but deciding every 
 doubtful point in favor of coritestee, would leave contestant a plurality 
 of 18 votes. This plurality would not be overcome if all the votes 
 claimed by contestee and not conceded as even doubtful by the committee 
 wei'e counted for him. Applying the rules adopted by the minority 
 (and not counting the 28 votes in Calvert County), would leave contestee 
 a plurality of 37 votes. 
 
 In the third district of Anne Arundel County contestee received 168 
 votes and contestant 32. Contestant examined 175 colored voters of 
 this precinct, 161 of whom were at the polling place desiring to vote 
 for contestant, and the remainder of whom had started to the polls to 
 vote, but turned back on learning of the occurrences at the polls. The 
 evidence, as stated in the committee report, showed that most of the 
 colored voters had gathered at the polls early in the morning under 
 the leadership of one of their number, an old man of prominence and 
 a large property owner. They formed in line to vote, and after four 
 of them had voted the next three or four in line, including the leader, 
 were violently pushed out of line by a number of roughs who had 
 come out from Baltimore pretending to be United States deputy mar- 
 shals. These Baltimore roughs were armed with pistols, and were 
 firing them near the polls during the day. There were guns in their 
 wagon. After being dragged from the line the most influential colored 
 man asked if the negroes were not going to be allowed to vote, and 
 being told that "not a damn nigger shall vote unless he votes for 
 Cleveland," he turned to the others and advised them not to attempt to 
 vote. Most of 'them remained around the polls all day, and whenever 
 any of them attempted to vote he was violently prevented and threat- 
 ened. The story was circulated that more men were coming from 
 Baltimore on the next train, and a Democrat went around among the 
 negroes telling them that it would be dangerous to vote; that he was a 
 deputy sheriff (which he was not) and could not protect them, and 
 advised them to go home. 
 
 Contestee did not call any of the persons identified as taking part in 
 the intimidation, though some of them were present while the testi- 
 mony was being taken, and the witnesses he did call only testified that 
 
 H. Doc. 610 29 
 
i50 DIGEST OF CONTESTED ELECTION CASES. 
 
 they believed that the negroes could have voted if they had made an 
 earnest effort. The committee held that a voter could not be com- 
 pelled to fight his way to the polling window, especially when to do 
 .so he must come in conflict with persons claiming to be officers of the 
 law. 
 
 The minority held that no such intimidation was proved as ought to 
 have intimidated men of ordinary firnmess. There was no proof that 
 the disorder was committed by more than three or four men; only one 
 of the witnesses claimed to have seen a pistol in the pocket of one of 
 them; the guns in the wagon were for the purpose of hunting; the 
 pistol shooting wiis at a mark and some distance from the polls, and 
 all the evidence tended to show that the voters refrained from voting 
 not because they had reason to be afraid, but because thej' were 
 "ordered" to do so by their leader or captain. 
 
 The committee held that these 175 votes could not be counted, Jut 
 that the whole vote, cast should be rejected. Making the requisite 
 deductions would increase the majority of contestant from IS to 154. 
 
 The case was fulty debated, the resolutions presented by the com- 
 mittee were adopted by a vote of 169 to 145, and Mr. Aludd was 
 sworn in. 
 
 [Howell, 147-171.] 
 
 (5) Threet /'.v. Clarke. 
 
 False cotmtimj. Coiiviulttee 'Hnanimously rejjorted hi favor of con- 
 testee, trlu) retained Ms seat. Tlie minority disagi'ced to the reasoning 
 of the majority. 
 
 Majority report by IMr. Haugen; minority report bj- ]\lr. Crisp. 
 
 Contestant charged that in a large number of precincts ballots 
 cast for him were fraudulently counted for contestee by the election 
 officers. This charge the committee found to be sustained in regard 
 to some precincts, but in regard to many of them the evidence was 
 not sufficient to overthrow the returns. The evidence in some cases 
 was based on estimates of the vote, and was rebutted by the testimony 
 of the election officers and other witnesses swearing to the fairness of 
 the election, and by proof of the good character of the election officers. 
 Where the proof consisted of the testimony of witnesses who issued 
 tickets and saw them voted, it was held to be sufficient to overcome 
 the jjrima facie validitj' of the returns and throw the burden of proof 
 on contestee. In some cases the evidence was not sufficiently rebutted 
 by contestee, and in others it was. In one case only one of the elec- 
 tion officers appeared; he organized a board under the statute and an 
 election was held. In the evening it was discovered that none of the 
 election officers could read the ballots, and they weie carried off by 
 the returning officer. The only proof of the vote was testimony that 
 most of the voters Avere colored. This was held to be insufficient. In 
 another case voters were refused registration, the registering officer 
 alleging that he had run out of paper. The voters had done all that 
 was required of them and the committee counted their votes. 
 
 Making all allowances for the frauds proved, they were still insuffi- 
 cient to overthrow the returned majority of contestee. The minority 
 agreed in the Conclusion, but announced their dissent from some of 
 the reasoning on which it was based. The resolutions presented were 
 adopted without debate or division. 
 
 [Rowell, 173-185.] 
 
fifty-first congress. 451 
 
 (6) Posey /<h. Parrett. 
 
 lllc'iiul i}(ttet<. Commifh'c iini//u'//i<ii/s/(/ reported iii.fdPiir of voiiteMee^ 
 and lie retained the seat. 
 
 Report by Mr. Bergen. 
 
 Charges of bribery were made by both sides, but thoy were not 
 sustained by evidence. The majority of contestee was only iiO votes, 
 and contestant sought to overcome this bj^ proof of illegal votes. A 
 considerable part of this testimony was talcen during the time for 
 rebuttal, and in regard to votes not attacked in the testimony in chief 
 nor in the testimony for contestee. The committee excluded all of 
 this testimony. The voters against whom evidence was brought \vithin 
 the legal time were all charged to be illegal on the ground of non- 
 residence. They were mostly of two classes — students in college, and 
 persons who had come from Kentucky to work in Indiana. The stu- 
 dents were 30 in number and all voted for contestee. They were 
 Catholic theological students preparing for the priesthood. The}' 
 were all of age and had all left the homes of their parents anlnui iion. 
 revert endi. They were supported chieflj' by the bishop. Thej' all 
 testified that they considered the college town their home and that 
 they had no other. The committee held that the presumption was 
 against the residence of a student in a college town, but these voters 
 having testified that they had made it their home, and there being no 
 proof by cross-examination or otherwise that they had not done so in 
 good faith, and in a sense which would make it their legal residence, 
 the committee held that under the state of the evidence in this case 
 the votes could not be rejected. The case of the Kentucky voters was 
 substantially similar. 
 
 Eliminating such votes as were proved to be illegal, the majority of 
 contestee was reduced from 20 to 10, but not overcome, and the com- 
 mittee reported that he was entitled to retain his seat. The case was 
 briefly debated and the resolutions presented were adopted Ijy a vote 
 of 125 to 4 (on division). 
 
 [Rowell, 187-191.] 
 
 (7) BowEN vs. Buchanan. 
 
 Srihery, violence ni)d intijnildation, ille<jtil votes., and i rreejidarities. 
 Committee unanimoi.isly reported in favor of eonte.'^tee, and, lie retained 
 the seat. The minority disagreed to portions of tlie majoritij report. 
 
 Majority report by Mr. Rowell; minority report by Mi-. O'Ferrall. 
 
 According to the returns contestee had a majority of 47S votes. 
 This contestant soyght to overcome by charges of briljery, violence, 
 illegal voting, and irregularities. Contestee made countercharges of 
 illegal voting and irregularities. The committee found some illegal 
 votes, but not enough to aflect the result. Ten voters were shown to 
 have been bribed to vote for contestee or not to vote, and about 10 
 others were induced not to vote for contestant by promises of immu- 
 nity from prosecution. These votes were deducted. In one county 
 the canvassing officers by mistake omitted the return of a precinct. 
 After they had adjourned they discovered the mistake and reassem- 
 bled and corrected it. The contestant asked that the vote of the 
 county be thrown out, but the committee held that the canvassers had 
 
452 DIGEST OF CONTESTED ELECTION CASES. 
 
 done just what they ought to have done. The statute required that in 
 all towns of over 2,000 inhabitants a transferred voter must have his 
 transfer recorded at least ten days before the election, but in other 
 places he might vote without such registry. The election officers of a 
 town which had grown up since the last census enforced this statute on 
 the assumption that the town contained more than 2,000 inhabitants. 
 The committee held that they had no right to make this assumption in 
 the absence of a legal determination of the population, and counted 
 the rejected votes. 
 
 In another precinct the box was removed at noon and in the evening, 
 from the presence of the United States supervisor. But for the strong 
 affirmative proof that no wrong was intended or done the committee 
 would have rejected this return. It was asked that the precincts 
 ■where the employees of the Stewart Land and Cattle Company voted 
 be rejected on account of the coercion of its employees practiced by 
 that company. It was shown that there was and had been a prevalent 
 belief that voting the Democratic ticket was a condition of employ- 
 ment by this company, but there was no definite proof how many 
 voters were influenced by this belief and nothing to implicate any of 
 the members of the company except the fact that one of them dis- 
 tributed tickets at the polls. 
 
 In three or four precincts there were scenes of violence at the polls, 
 but no one seems to have been intimidated except in one precinct, and 
 there the number was small and definitely proved, so that the votes 
 could be eliminated without rejecting the polL A large number 
 of voters were prevented from voting by not receiving transfers 
 which they had trusted some one else to get for them, but they did 
 not tender their votes, and their failure to receive transfers was the 
 result of their own neglect. Altogether the majority of contestee was 
 reduced by the proof, as found by the majority, by about 200 votes. 
 The minority agreed that the contestee was elected, but believed that 
 the large reduction in his majority found by the committee was not 
 sustained by the evidence. They agreed that there was some bribery 
 and some violence and intimidation, but protested that the people 
 among whom these wrongs were committed were not responsible for 
 them and should not be censured. 
 
 The resolutions presented were adopted by the House without 
 debate or division. 
 
 [Rowell, 193-201.] 
 
 (8) Waddill r-y. Wise. 
 
 Conatructire n')<'ction of votes Jiy umho: dehiy. Mojurit]! report for 
 contestant; njinority report for naeatlmj the xeett and urder'nuj a ueir 
 election. Oontest((rd giren t/ie seat. 
 
 Majority report by Mr. Laccy; minority report by Mr. Crisp. 
 
 The decisive issue in this case, and the only one discussed in either 
 report, was the question of the disposition to be made of the votes of 
 a large number of voters who attempted to vote for contestant in 
 Jackson Ward, Richmond. Some of the facts in the case were not 
 controverted. Contestee received a majority of 261 votes. In the 
 precincts of Jackson Ward 722 voters were claimed to have been in 
 line at the close of the polls, not having yet had an opportunity to 
 
FIFTY-FIRST CONGRESS. 453 
 
 vote. Of these voters, 457 were examined as witnesses, and testified 
 to the fact that they had been in line, most of them all day, and some 
 of them most of the previous night, waiting to vote. They had not 
 yet reached the window at sundown, and deposited the ballots they had 
 , intended to vote in boxes provided by United States commissioners, 
 each making afiidavit to the circumstances. The ballots they would 
 have cast were for contestant. If these votes were counted they would 
 give the majority to the contestant. 
 
 The committee differed as to the responsibility for the delay which 
 prevented these voters from voting. The majority found that the 
 preponderance of the evidence showed that the delay was intentional 
 and fraudulent, the result of a conspil-acy between the Democratic offi- 
 cers of election and the Democratic workers and challengers. Voters 
 were asked frivolous questions, long explanations were made to them 
 concerning cei'tain constitutional amendments to be voted bn, whether 
 they chose to listen or not, and in every possible way the time con- 
 sumed in passing on and receiving each vote was made as long as pos- 
 sible. The voters were in two lines, white and colored, voting alter- 
 nately, and as the white line was much the shorter all the white votes 
 were easily cast, and the votes excluded by the delay were all colored. 
 
 The minority found that the charge of conspiracy was not sus- 
 tained. Much of the delay was necessary, and whatever was unnec- 
 essary was caused in one precinct by the slowness of the Republican 
 judge, who had the colored registration books, in finding the names 
 on the list, and in the other two precincts by the offensive and 
 disorderly action of the Republican United States supervisors. The 
 large number of colored voters having the same name and the well- 
 known difficulty in recognizing colored men made it necessary to ques- 
 tion each voter carefully in order to identify him. By the laws of the 
 State conviction of felony or petit larceny was punished by disfran- 
 chisement. A large number of names were on the disfranchised list, 
 and it was necessary to compare it carefully to guard against illegal 
 voting. Voters had a right to know the nature of the constitutional 
 amendments to be decided, and the judges were only doing their duty 
 in explaining them. 
 
 In the application of the law to these facts the committee also dif- 
 fered. The majority held that the rule was well established that the 
 vote of a legal voter, tendered and illegally rejected, should be counted 
 on a contest. They held, also, that the action of the voters in this 
 case in standing in line and making every effort to reach the window 
 amounted in law to a tender of their votes, and that the action of the 
 judges in intentionally delaying the vote amounted in law to a I'ejec- 
 tion of the votes prevented from being cast. The action of the voters 
 in depositing their votes in boxes provided by United States commis- 
 sioners was held not to constitute a casting of the votes. Without 
 deciding the exact number of votes rejected, if the smallest number, 
 the 467 called as witnesses, was taken, and the votes counted as if cast, 
 it would be more than enough to give the majoritj^ to contestant. 
 
 The minority held that the law as found in court decisions was that 
 a vote not cast could not be counted. But the precedents of the House 
 seemed to establish the rule that if the vote of a legal voter was actu- 
 ally tendered, and unlawfully rejected by the election officers, and it 
 was shown for whom the voter offered to vote, the vote could be 
 
454 DIGEST OF CONTESTED ELECTION CASES. 
 
 counted by the House on a contest. This was as far as the rule could 
 safely go, and further than it had been carried by the courts. In this 
 case the votes had not been actually tendered and not rejected. 
 
 The rule of the courts, as applied to this case, would thus leave con- 
 testee in his seat. But if, for the sake of the argument, it were conceded 
 that the voters were prevented from voting by the deliberate and 
 fraudulent act of the judges, the most that could be claimed would be 
 that there was no fair election and the seat ought to be declared 
 vacant. But there being no fraud in this case, the minority were 
 somewhat embarrassed to determine what recommendation to make to 
 the House. They were not satisfied of the justice of the established 
 rule, which would leave contestee in his seat, and concluded that the 
 fairest course would be to vacate the seat and submit the matter to a 
 new election. 
 
 The case was debated at some length and the resolutions presented 
 by the committee were adopted, the first without division and the sec- 
 ond bj' a vote of 134 to 120, and Mr. Waddill was sworn in. 
 
 [Rowell, 203-253.] 
 
 (9) McDUFFIE l'.'.-. TUKPIN. 
 
 False counting . Majority report for contestant; minority report for 
 contestee. Contestant given the seat. 
 
 Majoritjr report by Mr. Rowell; minoritj' report by Mr. Crisp. 
 
 There was but one issue in this case — the charge that thousands 
 of votes cast for contestant had been fraudulentlj' counted for con- 
 testee — but this issue involved the separate consideration of evidence 
 in regard to nearly every precinct in the district, and some 70 
 separate precincts were discussed in detail in the reports. 
 
 On the face of the i-eturns contestee had a majority of 13,153 votes. 
 The majority of the committee found that the evidence in regard to 
 individual precincts and votes required changes in favor of contestant 
 amounting in the aggregate to 17,634 votes, showing a majority for con- 
 testant of the votes as actuallj^ c:ist of 4,481 votes. The minority found 
 fraud proved in only eight or nine precincts. Counting these according 
 to the proof of the vote, and counting some precinct returns not 
 counted by the count}- canvassers, made a change in favor of contest- 
 ant of 4,049 votes, leaving contestee still a majority of about 9,000. 
 
 From the enormous majority returned for contestee and sought to 
 be overcome by contestant, it was evident "either that this contest is a 
 huge farce, or that this whole district is honeycombed with fraud."' To 
 show that the claims of contestant were probable and reasonable, the 
 majority of the committee in their report lirst discussed the general 
 features of the case, and the " recent political history of the district." 
 It appeared from the census that about four-fifths Of the population 
 of the district was colored, and from the e\idence that most of the 
 colored voters were Republicans, and in this district took an active 
 interest in politics. But if the returns were true contestee must have 
 received the vote of every white voter in thg district, 43 per cent of 
 the colored voters must have failed to vote, and two-thirds of the 
 remainder must have voted for contestee. Such a result was almost 
 self-evidently false. 
 
FIFTY-FIRST CONGBESS. 455 
 
 At the elections prior to that of 1878 this district had uniformly 
 giveo large Kepublican majorities. At the election of 1880 and every 
 subsequent election it had been returned as gi\'ing large Democratic 
 majorities, but all these elections but one had been contested, and in 
 each case the committee and the House had found fraud amounting to 
 thousands of votes. In every case but one the Eepublican contestant 
 had been seated; in one case by the unanimous vote of a Democratic 
 House. The delay in deciding the case in the Forty-eighth Congress 
 had prevented the contestant from prosecuting his case in the Forty 
 ninth Congress. In the Fiftieth Congress the m aj o rity of the committee 
 had found fraud reaching into the thousands of votes, but not enough 
 to overcome the returned majority. The minority had reported in 
 favor of contestant. The law of Alabama required that where practi- 
 cable each party should be represented on the election boards. In 
 nearly every precinct in four of the counties in this district the inspect- 
 ors were either all Democrats or the Republican inspector appointed 
 was illiterate and incompetent to guard against frauds. In Lowndes 
 County intelligent Republicans had been appointed for each of the 
 nineteen precincts, but shortly after a visit of contestee their appoint- 
 ments were revoked and other appointments made. The probate judge 
 testified that he had been informed that the first appointees, being 
 school-teachers, did not wish to serve, and that so far as he knew, the 
 second appointees were as intelligent as the first. The change was not 
 made at the request of contestee, and the appointments were satisfac- 
 tory to contestant. 
 
 A detailed examination of the testimony showed, however, that 
 12 of the original appointees either actually served or attempted to 
 serve, and that 8 of the new appointees could neither read nor write. 
 In each of the precincts where the original appointees did serve, the 
 vote as counted was in exact accordance with the relative strength of 
 the two parties in the precinct; in the other precincts it was just the 
 reverse. 
 
 The minority of the committee did not reply to that portion of the 
 report of the majoritj' which treated of "the recent political history 
 of the district," believing that every case should stand on its own 
 merits and be tried by the ordinary rules of evidence. In answer to 
 the charge that the change in the Eepublican election ofiicers in 
 Lowndes County was for the purpose of facilitating fraud, the minority 
 quoted the testimony of the probate judge, a witness for contestant, 
 showing that the new appointments were made for a legitimate reason, 
 without suggestion bj' the contestee, and were satisfactory to contestant. 
 
 Substantially all of the minority report, and a large part of the 
 majority report, was taken up with a detailed discussion of the evidence 
 in regard to each of some 70 precincts. No general description of the 
 evidence was given in either report, and no general rules of inter- 
 pretation were stated. It will be impossible to condense the outline of 
 the reports except by a very general description, but it is to be under- 
 stood that the compiler and not the committee is responsible for the 
 description. It is believed, however, that a careful and impartial 
 examination of the reports will confirm all the statements made. 
 
 The testimony of contestant was of substantially the same sort in 
 nearly all the precincts. Before the election the Republican voters in 
 the various precincts had been organized into clubs, and plans had 
 
456 DIGEST OF CONTESTED ELECTION CASES. 
 
 been made for the purpo.se of rendering it possible to prove the vote 
 without reference to the returns. These plans, when perfectly carried 
 out, were substantially as follows: 
 
 Under the law no person except the voter in the act of voting and 
 two challengers was allowed within 30 feet of the polls. At the 
 most convenient point at this distance two or more persons, previously 
 selected as clerks and ticket distributers, would station themselves, the 
 voters forming a body behind them. One voter would come forward, 
 take a Republican ticket, show it to the clerk, have his name recorded, 
 and go to the polling window, holding the ticket out from his body so 
 that it could be seen that he did not change it. On his return, if he 
 had been seen to deposit the ticket, his name would be checked, and 
 another voter would vote in the same way. When the votes were 
 counted, it was generally found that from two-thirds to nine-tenths of 
 these voters were returned as voting the Democratic ticket. Contest- 
 ant claimed that the evidence of tlie ticket distributers and clerks, 
 testifying to these facts and presenting the lists kept by them, was 
 proof that the returns were fraudulent, and also proof of the number 
 of votes received by him. Both the majority and minority of the com- 
 mittee agreed that such testimony was admissible for what it was 
 worth, but the majority found it sufficient to overthrow the returns in 
 a much larger number of cases than did the minority. The typical 
 plan above described was not perfectly carried out in all the precincts. 
 In some cases no list was kept, but only a tally or count; in some cases 
 the polling window was so situated that it was impossible to see the 
 ticket in the hand of the voter all .the time while he was going to the 
 window, and in some cases sufficient pains were not taken to do so 
 when it would have been possible; in some cases the tickets were dis- 
 tributed more than 30 feet from the polls, and in som.e cases they were 
 not separately read by the clerk who kept the list. 
 
 Contestee took no testimony in regard to some precincts, but in 
 regard to the larger number he took the testimony of one or more of 
 the officers of election, who testified that they saw no fraud committed. 
 He also showed, wherever possible, by cross-examination or separate 
 testimony, that some of the details of the typical plan above described 
 were not carried out, so as to leave the chain of circumstantial evi- 
 dence incomplete. 
 
 The majority of the committee applied the testiinony substantially 
 as follows: Where there was no testimony for the contestee, or the 
 .testimony was not such as to amount to a denial of the fraud, being 
 the testimony of an illiterate inspector who could not have known 
 whether the votes were correctly counted or not, or of one of the 
 other inspectors, when the circumstances were such that the fraud 
 could have been committed by the third without the knowledge of the 
 other two, or where the election inspectors were impeached either by 
 testimony or circumstances, and where the testimony for contestant 
 was clear and definite, even though all the details of the above- 
 described typical plan were not carried out, the returns were rejected 
 and the vote counted according to the proof. Where there was a 
 direct conflict of unimpeached testimony the returns were generally 
 allowed to stand. 
 
 The minority found the testimony in most cases insufficient to over- 
 throw the returns. Where there was no testimony at all for the con- 
 testee, and the precautions taken by the Republican voters were such 
 
FIFTY -FIRST CONGKESS. 457 
 
 as to leave the chain of circumstantial evidence unbroken, the returns 
 were rejected and the vote restated according to the proof. But 
 where any of the election officers testified to the honesty of the elec- 
 tion, or where the testimony for contestant was not perfectly clear 
 and definite, they allowed the returns to stand. 
 
 The case was fully debated, and the resolutions presented by the 
 committee were adopted by a vote of 130 to 113, and Mr. McDuffie 
 was sworn in. 
 
 [Rowell, 256-327.] 
 
 (10) Chalmers vs. Morgan. 
 
 Cansjnracy , frmul, hithniddtiini, illrgal voting. Majority report 
 far contestee; r(-poi^t of Jlr. Iloukfor contestant. Oojitestee retained 
 the seat. 
 
 Majority report b}- Mr. Dalzell; minoritj^ report by Mr. Houk. 
 
 Contestee received a plurality of 8,161 votes on the face of the 
 returns, which contestant sought to overcome by charges of conspiracy, 
 fraud, and intimidation. The committee found that the charges were 
 sustained as to at least twenty-three precincts, and that a restatement 
 of the vote in these precincts, according to the proof, would overcome 
 at least three-fourths of the plurality returned for contegtee. But no 
 evidence was taken by contestant in regard to a large number of pre- 
 cincts, and the evidence in regard to others was insufficient. The 
 charges of fraud were confined to seven of the nine counties in the 
 district. The election in the other two counties was honest, and 
 while wholesale fraud was shown in each of the seven counties, only 
 those precincts could be thrown out which were assailed by evidence, 
 and these constituting but one-fourth of the district, and the fraud 
 shown in them not being sufiicient to overcome the entire- returned 
 majority, the presumption of fairness in favor of the unassailed boxes 
 and the unimpeached vote of two counties must save contestee his 
 title to his seat. 
 
 But, while reporting in favor of contestee, the committee severely 
 condemned the fraud to which at least three-fourths of this returned 
 majority was proved to be due. These frauds were of various sorts. 
 In some places armed militia companies, composed entirely of Demo- 
 crats, were organized and drilled just previous to the election. By 
 their presence, and in some cases by their acts, many Republican vot- 
 ers were intimidated from voting. The election officers in many 
 precincts were all Democrats, in violation of law, and where Republi- 
 cans were appointed they were generally selected because of their 
 illiteracy and inability to guard the interests of their party. In some 
 precincts the judges of election were caught changing ballots, and in 
 others the box was removed from the presence of the United States 
 supervisor at noon and in the evening, and when the ballots were 
 counted out of it the result differed very greatly fi'om the vote as 
 proved to have been cast. In some strong Republican precincts no 
 election was held, and in a number of others the box was stolen after 
 the votes had been cast. The county registering officers arbitrarily 
 struck from the lists the names of a large number of Republican voters, 
 and when these voters presented themselves at the polls their votes 
 were refused. There was also testimony from members of both par- 
 
458 DIGEST OF CONTESTED ELECTION CASES. 
 
 ties showing tiiat the general sentiment of the Democrats of the dis- 
 trict was favorable to carrying the election by fraudulent means if 
 necessary. 
 
 Mr. Houk filed a minority report, contending that contestant was 
 elected. He claimed that a conspiracy to carry the election by fraud 
 wuH proved to have been formed by all the officers connected with the 
 election uuichinery, and that in those counties where the conspiracy 
 was proved to have been carried out in a number of precincts there 
 could be no presumption of fairness in favor of the precincts in regard 
 to which no testimony was taken. Under the conditions shown to 
 exist in Mississippi, counties should be taken as units and the votes 
 of the unassailed boxes thrown out. If this course were followed as 
 to the counties where the conspiracy was most completely proved, the 
 majority returned for the contestee would be overcome and a majority 
 shown for contestant, even on the findings in regard to individual pre- 
 cincts indicated in the majority report. But on the findings of Mr. 
 Houk in regard to individual precincts, the majority would be over- 
 come even without throwing out the unassailed boxes. 
 
 The case was briefly debated (contestant speaking in his own behalf), 
 and the resolutions presented by the committee were adopted by a vote 
 of 115 to 16 (on division, the Speaker "counting a quorum"), and the 
 title of contestee to the seat was thus confirmed. 
 
 [Rowell, 329^33.] 
 
 (11) Langston vs. Venable. 
 
 FtoalcL. Majority report for contestant; minority report for con- 
 testee. Contestant given the seat. 
 
 Majority report by Mr. Haugen; minority report bj' Mr. O'Ferrall. 
 
 Contestant claimed that the plurality of 61rl votes returned for con- 
 testee was due to fraud and false counting on the part of the election 
 oflScers. A large number of precincts were brought in issue, but only 
 five were considered in the reports — the Third and Sixth wards of Peters- 
 burg and three outside precincts. The principal changes made in the 
 vote were in the two wards of Petersburg, and on them the case turned. 
 
 Outside of Petersburg the returns of one precinct had been rejected 
 entire by the county commissioners on account of irregularities in the 
 returns of the Presidential vote. The committee unanimously counted 
 the vote of the precinct for Congress. The return from another pre- 
 cinct was not signed or certified, and no testimony was offered to show 
 its correctness. The majority of the committee " stated that this pre- 
 cinct was attacked in the notice of contest, and rejected the so-called 
 return. The minority stated that the precinct was not mentioned in 
 the notice of contest, and on this account refused to reject the return. 
 In another precinct new election officers, all political opponents of con- 
 testant, were appointed on the morning of the election. The election 
 was held in a less commodious room than the one usually used. At 
 noon an adjournment for dinner was had, and the box left in the room, 
 the door being locked. A bundle of tickets containing contestee's 
 name was on the table near the box. No friend of contestant was 
 allowed to witness the count. The clerks of the election had gone out 
 of the room at the close of the polls, and on returning had difficulty in 
 gaining admission. During their alisence the ballots had been taken 
 out of the box and arranged on the table in separate piles for the three 
 candidates. There were found to be 'H'< more ballots than persons vot- 
 
FIFTY-FIEST CONGRESS. 459 
 
 ing (in a total vote of about 200), and the ballots were returned to the 
 box and the excess drawn out by a blindfolded judge. One of the 
 judges of election swore to the honestj^ of the count, and explained 
 the change in the election officers and the delay in admitting the clerks. 
 The majority concluded that these circumstances were sufficient to call 
 for the rejection of the return. The minority held that the excess of 
 ballots was not sufficient proof of fraud, and that the other circum- 
 stances said to be suspicious wei"e satisfactorily explained; and in an}' 
 case the whole return ought not to be rejected, as the utmost advantage 
 contestant could claim would be to have counted for himself the high- 
 est number of votes estimated by his followers to have been cast for 
 him. 
 
 In the Third Ward of Petersburg the returns gave contestant 174 
 and contestee 518 votes. Contestant claimed to have proved by the 
 evidence of two witnesses that he had in fact received 284 instead of 
 174 votes, thus showing the falsity of the returns. These two wit- 
 nesses testified that they stood at the polling window all day and took 
 down the names of all the colored voters who voted; that 284 voters 
 voted an open ticket with contestant's name on it, and that they read 
 each of these tickets, saw them voted, and took down the names of the 
 voters. The lists were put in evidence by contestant, and the com- 
 mittee called attention to the fact that none of the voters whose names 
 appeared on them had been called by contestee to testify that they had 
 not voted as claimed in the testimony of these witnesses. 
 
 Contestant began taking testimony in this precinct twenty-three 
 days before the expiration of his time, in pui'suance to a notice con- 
 taining the names of 292 persons who, he claimed, would have testified 
 that they voted for him. The first two witnesses, whose testimony is 
 noted above, were cross-examined by contestee throughout the entire 
 twenty-three days, and hence the testimony of the individual voters 
 could not be taken. The committee held that the contestee was estop- 
 ped from claiming that the testimony of the two witnesses was insuffi- 
 cient unless corroborated by that of the individual voters, he having 
 by his own act prevented the latter testimony from being taken. The 
 committee rejected the returns of this ward, and counted onlj- the 
 votes proved outside the returns. 
 
 The testimony in regard to the Sixth Ward was similar, except that 
 the testimony of the individual voters was also taken. In this ward 
 contestant was returned as receiving 139 votes and contestee .35:2. 
 The officers of election were all political opponents of contestant. 
 Two hundred and eighty-three voters testified that they had voted for 
 contestant. Two witnesses who had stood at the window and read the 
 tickets of the voters testified that they had seen 377 of them vote for 
 contestant, and had kept a list of the names. Six days before the 
 expiration of his time contestant began taking the testimony of 149 
 voters named in a notice, in addition to the 283 who had already testi- 
 fied. The first witness was cross-examined by the contestee through- 
 out the entire six days, and was then arrested at the instance of con- 
 testee's counsel on the ground that he had refused to testify in the 
 case. The other voters named in their notice were not examined. 
 The committee rejected the return as fraudulent, and counted for con- 
 testant the 377 votes proved to have been cast for him. 
 
 At this poll there were two lines of voters, one composed of white 
 men and the other of colored. The colored registration book was 
 placed in the hands of the judge least familiar with the work, and 
 
460 DIGEST OP CONTESTED ELECTION CASES. 
 
 there was some delay in finding the names of colored voters. Votes 
 wei received from the two lines alternately. The colored line being 
 much the longer, there were still 124 voters in it who had not voted 
 when the polls closed. These voters all deposited the tickets they 
 had intended to vote in a box provided at the instance of contestant 
 after the polls had closed. Nearly all of the ballots were for contest- 
 ant. No afiidavits were made by the voters, no list of their names 
 was kept, and they were not called as witnesses. The committee held 
 that under this state of the evidence their votes could not be counted 
 for contestant (for a different ruling under a different state of facts, 
 see Waddill vs. Wise), but that, had their number been sufficient to 
 change the result, the election should on this account alone have been 
 declared void and a new election ordered. 
 
 The minority found that the testimony was not sufficient to show 
 fraud or overthrow the returns of either of these wards. In the Sixth 
 Ward one of the judges of election and the United States supervisor 
 swore positively to the honesty of the count. The story told by the 
 two outside list keepers was inherently improbable, as it would have 
 been a physical impossibility for them to stand all day where they 
 claimed to have stood and keep so close a scrutiny on the vote. The}'^ 
 were, moreover, contradicted by a witness who said that one of them 
 had been away from the polls two or three times instead of once as he 
 had testified, and by a number of witnesses who had not noticed them 
 at the polls at all. The two men who distributed the tickets for con- 
 testee did not mention these list keepers. Neither of the ticket dis- 
 tributers could read the tickets thej^ gave out, and they only knew 
 their contents from the fact that they got them from the leading man- 
 ager of contestant's canvass in the district. The voters could not read, 
 and could only testify that they voted the tickets given them by these 
 illiterate ticket distributers. It would be out of the question to reject 
 a return on such testimony. 
 
 The grounds on which it was sought to throw out the returns of the 
 Third Ward were still weaker. Here the testimonj^ of the voters was 
 not taken at all, and the only testimony relied on was that of the two 
 witnesses who claimed that they saw a much larger number of tickets 
 voted openly for contestant than was I'oturned for him. Three wit- 
 nesses testified that these two men were not present so continuously as 
 they claimed to have been, and that it would have been impossible for 
 them to have scrutinized the ballots of the voters in the manner claimed 
 in their testimony. A United States supervisor testified to the fairness 
 of the election and count. The importance of the testimony of these 
 witnesses justified a most thorough cross-examination, and the attempt 
 on the part of the contestant to strengthen the testimony- of these wit- 
 -nesses by claims of what he would have shown if he had more time 
 was only a confession of the weakness of his testimonj^ 
 
 The case was fully debated and hotly contested in the House (it 
 being under consideration most of the time from September 6 to Sep- 
 tember 23, 1890). The resolutions presented by the couimittee were 
 adopted, the first by a vote of 151 to 1 (the Speaker "counting a 
 quorum"), and the second without division, and Mr. Langston was 
 sworn in.' 
 
 [Rowell, 435-503.J 
 
 ' It was in connection with this case that the minority party adopted for the first 
 time the plan of withdrawing in a body from the Hall of the House, to avoid being 
 counted as part of a quorum. 
 
PIFTY-FIEST CONGRESS. 461 
 
 (12) MiLLEK VS. Elliott. 
 
 FrauckHent refusal of registration and exclusion of hallots: hallot- 
 iox stuffing; election and registration law tinconstitutional. Majority 
 report for contestant/ minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Rowell; minority report by Mr, Wilson. 
 
 On the vote as returned contestfee had a majority of 1,355 votes. 
 Contestant charged that by the statutes of South Carolina and the 
 partisan manner of executing them manj^ voters possessing all the 
 constitutional qualifications for voting were prevented from register- 
 ing and refused the right to vote. He also charged that the judges of 
 election in a number of precincts repeatedly shifted the ballot boxes 
 for the purpose of deceiving the voters and causing them to deposit 
 their ballots in the wrong boxes, and that by this proceeding, as well 
 as by ballot-box stuffing and other frauds, he was deprived of a large 
 number of votes honestly cast for him by legal voters. All these 
 charges the committee found to be sustained by the evidence. 
 
 The committee first reviewed the registration law of the State, and 
 found that it was unconstitutional because it was not a reasonable reg- 
 ulation of the right to vote, but was, under the pretense of regulation, 
 an abridgment, subversion, and restraint of that right. Its unreason- 
 able or restrictive features were: (1) That it did not provide sufficient 
 facilities for registration, and left to the registering officer a danger- 
 ous discretion; (2) that it attached the penalty of perjiianent disfran- 
 chisement for failing for any cause to -register for the first election at 
 which the citizen would be entitled to vote if registered; (3) that it 
 affixed a like penalty for parting with or destroying a registration 
 certificate; (4) that all applications for transfer or renewal of certifi- 
 cates must be made at the county seat of the county where the original 
 certificate was issued; (5) that when the board of appeals had decided 
 against an applicant for registration he might appeal, but must give 
 notice in writing within five days and commence proceedings in court 
 within ten days thereafter. This was a special remedy with a fifteen 
 days' statute of limitations; (6) that the supervisor was given arbitrary 
 power to strike names from the registry list without posting the names 
 and without notice to anybody. In addition to the difficulties thrown 
 by the law in the way of registration, the committee found that the 
 manner of executing it was such as to make it still more difficult and 
 often impossible for persons politically opposed to the registering 
 officer to secure registration. 
 
 The minority, without entering into a detailed examination of the 
 law, held generally that its provisions were reasonable and constitu- 
 tional, and that there was nothing in the testimonj' indicating that it 
 was executed in a partisan or illegal manner. 
 
 The issue in which the most votes were involved, and on which the 
 case chiefly turned, was the question of counting a large number of 
 ballots for contestant found in the boxes intended for the reception of 
 ballots for Presidential electors. Under the law of the State the boxes 
 for State officers and those for Federal officers were presided over hy 
 diflferent sets of election officers, and the elections were often held at 
 different places. At the State election poll six, and sometimes seven, 
 boxes were required to be used; at the Federal poll two. The boxes 
 were required to be labeled in plain roman letters, and the voter was 
 
462 DIUEST OF CONTESTED ELECTION CASES. 
 
 required to deposit his own ballots in the boxes. No ballot found in 
 the wrong box could be counted. The judges were required, on 
 demand, to road the names on the boxes. An inclosure was to be 
 "railed off or otherwise provided." No person except the voter in the 
 act of voting was permitted inside the inclosure, and no one except the 
 officei's of election Avas permitted to speak to the voter while in the 
 inclosure. 
 
 The inclosurcs provided were generally close fences, which shut off 
 the view from the outside. Large num1)ers of the voters for contestant 
 could not read, and were consequently obliged to rely on the position 
 of the boxes to Isnow in which box to deposit their ballots. The man- 
 agers in many precincts shifted the position of the ballot boxes from 
 time to time, with the result that large numbers of tickets were depos- 
 ited in the wrong boxes. One of the managers testified that he shifted 
 the boxes for the purpose of "carrying out the spirit of the law, and 
 testing the intelligence of the voters." Another testified that he did 
 it in order to defeat the illegal action of the United States supervisors 
 in surreptitiously sending out notes stating the relative positions of the 
 boxes. All the election officers throughout the district were political 
 partisans of contestee, the governor having, upon application, refused 
 to accord to the party of contestant the right of representation on the 
 boards. 
 
 The committee held that this provision of the election law was prac- 
 tically an educational qualification, and such qualification being for- 
 bidden by the constitution of the State, the law was unconstitutional. 
 The provision that the election officers should read the labels on the 
 boxes was easilj' evaded and of no practical effect, as there was no 
 requirement that they should in any way designate the boxes while 
 reading, or read the labels in any particular order. The practice of 
 shifting the ballot boxes was not expressly forbidden bj' the law, but 
 it was avowedly done for the fraudulent purpose of deceiving the vot- 
 ers and causing them to cast their ballots in the wrong boxes. The 
 act was made fraudulent by its fraudulent purpose. 
 
 In the various precincts of the district contestant sustained a net loss 
 of 1,049 votes, which were cast in the wrong boxes as a result of this 
 conduct of the judges and were destroyed bj^ them. The United 
 States supervisors present at every poll testified to the number of 
 ballots thus destroyed for each candidate, and on their testimony the 
 committee counted for contestant 1,000 additional votes. 
 
 The minority held that the provisions of the law were constitutional 
 and salutary, and that the shifting of the ballot boxes was a proper 
 proceeding. The law contained many features of the "Australian 
 system," and served much the same purpose. Its purpose was to 
 carry out the provision of the constitution of the State protecting the 
 voter from "an undue influence from power, bribery, tumult, or 
 improper conduct." It provided that the voter should be separated 
 from all others while voting, should deposit his own ballots in the 
 boxes, and that he should receive any information he desired from the 
 election officers alone. If the law was being violated by the reception 
 of information by the voters from others than the election officers; "if 
 the wise provisions of this law were being interfered with and ren- 
 dered nugatory by any outsider at any poll; or if it came under the 
 observation of those selected to supervise the execution of this law 
 that its letter or intention or spirit was being violated, we submit it 
 
FIFTY-FIBST CONGRESS. 463 
 
 was the duty of the managers to shift the boxes or perform any other 
 legal act to subserve its proper execution." 
 
 The evidence by which the number of votes thus lost was sought to 
 be shown was inconclusive, consisting chiefly of the memorj' of the 
 United States supervisors, assisted by leading questions from con- 
 testant's counsel. The proposition to count for contestant, in violation 
 of the State law, 1,000 votes cast — if cast at all — in the wrong boxes 
 could not be sustained by any principle of law or reason. 
 
 In seven preciocts the committee found that the ballot boxes had 
 been stuffed in the interest of contestee. Under the law of the State 
 if more ballots were found in the boxes than there were names on the 
 poll list it was the duty of one of the judges, blindfolded, to draw out 
 the excess of ballots. In each of these precincts there was an excess, 
 in one case of nearly 400 votes, and in the other cases of from 75 to 
 100. The law in regard to "purging" the boxes had been complied 
 with. 
 
 The committee held that the fact of the existence of so large an 
 excess of ballots was proof that the boxes had been stuffed by some 
 one. That they must have been stuffed in the interest of contestee 
 was proved in every case but one by the testimony of a much larger 
 number of voters than were returned as voting for contestant, who 
 testified that they had voted for him. In three precincts, including 
 the one where the voters were not called as witnesses, there was evi- 
 dence indicating that the managers of election placed the excess of 
 ballots in the box. In two of these cases the managers, who were all 
 partisans of contestee, refused to exhibit the inside of the box to the 
 United States supervisor or the voters present at the opening of the 
 polls, as required by the law, alleging that the polls had been already 
 opened and votes received, though no proclamation had been made 
 and no opportunity given for voting. In the third case the boxes 
 were emptied on the heads of barrels standing behind a counter, where 
 the United States supervisor had not been permitted to go during the 
 day. More votes were found in the piles of ballots thus made than 
 had been voted by the voters. 
 
 The committee held that the statute for " purging" the ballot box 
 had been provided for mistakes and not for frauds. The boxes in 
 each of these cases having been proved to have been fraudulently 
 stuffed, the legal course would be to exclude the entire returns and 
 count only such votes as were proved aliunde. Bat contestant having 
 in the claims of his original brief conceded to contestee all the votes 
 in each of these precincts not proved to have been cast for himself, 
 and it being now only a question of the size of contestant's majority, 
 and not of the result of the election, the committee counted the vote 
 according to the statements in contestant's brief. According to this 
 method of counting contestant was shown to have a majority of 757 
 votes. According to the strictly legal method ^is majority would be 
 1,448. 
 
 The minority held that the testimony in all these cases was insuffi- 
 cient. The mere fact of the excess of ballots was not sufficient cause 
 for the rejection of the returns, as the law of the State providing for 
 such contingencies had been strictly followed. There was no pi'oof 
 that the boxes had been stuffed by the managers, and in the case ofAe 
 lai'gest excess there were grounds for believing that it had been done 
 by the voters for contestant; one or more of the managers in each pre- 
 
464 DIGEST OF CONTESTED ELECTION CASES. 
 
 cincfc testified to the honesty of the election ; some of the testimony tor 
 contestant was impeached; and the testimony by which the amount of 
 excess was sought to be shown was inconclusive, and in cJne case con- 
 flicting. No sufiicient foundation for calling the voters themselves was, 
 in most of the cases, laid by first overthrowing the presumption of the 
 correctness of the returns. Large numbers of the voters called as 
 witnesses for contestant could not read, and could not know with cer- 
 tainty for whom they voted. Part of the testimony in chief was taisen 
 during the time for rebuttal, and part of it was taken without notice. 
 
 The case was not debated. The resolutions presented by the com- 
 mittee were adopted by a vote of 157 to 1 (on division, the Speaker 
 "counting a quorum",) and Mr. Miller was sworn in. 
 
 [Rowell, 505-58.0.] 
 
 (13) Goodrich vs. Bullock. 
 
 Illegal refusal of registration and rejection of votes; stealing of hallot 
 hoxes; and fraud. Majority re2)ort for contestant; minority report for 
 contestee. No action mj the House. 
 
 Majority report by Mr. Rowell; minority report by Mr. Maish. 
 
 On the face of the returns contestee had a majority of 3,196 votes. 
 The committee found that this majority was overcome and a majority 
 shown for contestant by counting for him the votes of a large number 
 of qualified voters who tendered their votes to the officers of election 
 and were illegally refused the right to vote, by counting ballots illegally 
 rejected on the ground that they had distinguishing marks on them, 
 and by counting the votes proved to have been cast in certain precincts 
 where the ballot boxes had been stolen, or for other reasons no returns 
 had been made. 
 
 Under the law of Florida voters were required to be registered to 
 entitle them to vote. The registration was a permanent one, but in 
 1887, under a new law, a new registration had been made. A certifi- 
 cate of registration was given to each voter, and if his name for any 
 reason did not appear on the registry list in the hands of the judges 
 this certificate was evidence of his right to vote. Votei's changing 
 their residence could procure transfer certificates, and if the change 
 was from one precinct to another they could not vote without such 
 transfers. 
 
 The committee found that this law had been so executed by many 
 of the registering officers as to deprive large numbers of qualified 
 voters of their votes, and also that \>j misinterpretations of the law 
 the election officers had deprived many more voters of their votes. 
 "The misconduct of registering officers consisted in unlawfully strik- 
 ing from the books large numbers of duly registered voters; in refusing 
 or neglecting to restore the names ordered to be restored by county 
 commissioners; in keeping their offices closed on days of registration; in 
 unreasonably delayingapplicants; in unlawfully requiring colored appli- 
 cants to prove their places of residence by white witnesses known to 
 the registering officers; in unlawfully refusing or neglecting to make 
 transfers on due application; in furnishing unequal facilities for regis- 
 tration as between their party friends and their party opponents; and 
 in fraudulently registering persons not qualified. By these means many 
 voters were prevented from being registered, and many others who had 
 been registered were struck from the lists. The election officers refused 
 
I'lFTY-KIRST CONGKESS. 465 
 
 their votes when tendered. The election officers in many places 
 rejected the votes of persons whose names appeared on the list, but 
 who did not present registration certificates, and also of persons whose 
 names had been struck from the list, but who did present registration 
 certificates. Under the law either evidence was sufficient. They also 
 refused the votes of voters who had changed their residence within 
 the voting precincts without procuring transfers. All such votes were 
 counted by the committee, and 390 of them, in regard to which the 
 minority found the evidence to be sufficient, were counted by the 
 minority. The committee also counted the votes of a large number of 
 voters who had been prevented from registering by the action of the 
 registering officers or whose names had been illegally struck from the 
 lists and who tendered their votes. The minority did not count this 
 class of votes, with a few exceptions, holding that there was not suffi- 
 cient proof of misconduct on the part of the election officers, and that 
 in most cases the voters had, through ignorance, failed to perform all 
 the acts necessary to make them voters under the law. The evidence 
 of the qualifications of these voters the minority held to be in most 
 cases inconclusive, and in many cases the evidence of their number 
 was inadmissible or insufficient. Detailed statements of these votes 
 were given in both reports. A large number of ballots, nearly all for 
 contestant, had been rejected on the ground that they were not in the 
 form provided by the statute. The statute was as follows: 
 
 The voting shall be by ballot, which ballot shall be plain, white paper, clear and 
 even cut, without ornaments, designation, mutilation, symbol, or mark of any kind 
 whatever, except the name or names of the person or persons voted for and the 
 office to which such person or persons are intended to be chosen, which name or 
 names and office or officers shall be written or printed, or partly written and partly 
 printed, thereon in black ink or with black pencil, and such ballot shall be go folded 
 as to conceal the name or names thereon, and so folded shall be deposited in a box 
 to be constructed, kept, and disposed of as hereinafter provided, and no ballot of 
 any other description found in any election box shall be counted. 
 
 Under this statute the committee counted votes which had been 
 rejected for the following reasons: An extremely small asterisk, 
 printed in the lower corner of the ticket; names " scratched" in red 
 or purple ink; slight specks on the paper; a printer's dash in a place 
 where no person was named for an office; printer's dashes separating 
 the names on the ticket; the name of a candidate for justice of the 
 peace written in with red pencil; and pencil marks on the tickets made 
 by the judges in pushing them into the boxes with a pencil. The 
 minority agreed in counting all these votes except those on which red 
 ink or pencil had been used, in direct violation of the terms of the 
 statute. The committee counted those where the i-ed ink had been 
 used, in spite of the statute, on the ground that this being the only 
 ink to be had in the only store in the place its use was, in a manner, 
 compulsory. 
 
 In one county no registration had been had, the governor having 
 failed to appoint a supervisor of registration. The election had been 
 held under the old registration; no harm appeared to have been done, 
 and the committee unanimously counted the vote. 
 
 In Madison County the ballot boxes in several precincts had been 
 stolen by a band of armed^men on the evening of the election, and in 
 some others the election officers refused to count the votes on various 
 grounds. Testimony was offered to show the votes cast, and the com- 
 mittee counted the votes according to this testimony. The minority 
 
 H. Doc. 51U 30 
 
466 DIGEST OF CONTESTED ELECTION CASES. 
 
 found that the testimony was not sufficient to show conclusively the 
 votes cast, being in soine cases based on memory, in others on esti- 
 mates, and in others on counts of the ballots made after the boxes had 
 been exposed to the possibility of being tampered with. 
 
 Under the findings of the minority only part of the majority of con- 
 testee was oyercome; under those of the committee it was all overcome 
 and a majority of 337 shown for contestant. The case was not reached 
 by the House. 
 
 [Rowell, 581-629. J 
 
 (U) McGiNNis vi.y. Aldersox. 
 
 Confliet lis to majority on face of returns, oiiil cliarges (f illegal 
 •noti/.s. ' Majority report for contestant; minority rep<jrt f(yr cimtestee. 
 No ((ction by the House. ' 
 
 Majority rept)rt by Mr. Lacey; minority report by Mr. Outhwaite. 
 
 The governor of West Virginia declared the result of the election in 
 this district and issued the certificate to Alderson on the basis of the 
 returns from all the counties except Kanawha, omitting the latter 
 return on account of a writ of certiorari awarded by the circuit court 
 of Kanawha County on the petition of contestee, suspending the judg- 
 ment and decision of the board of county canvasserw. Excluding this 
 county, contestee had a majority of about 1,300, but counting it 
 according to the returns based on the original count and forwarded to 
 the governor, contestant had a majority of 16 ^'otes. Counting it 
 according to the results of recounts had on petition of contestee, con- 
 testee would have a majority of 7 votes. 
 
 The committee held that contestant having a majority" on the face of 
 the returns as forwarded to the governor, he should have received the 
 certificate, and on the contest the burden of proof shifted to contestee. 
 The certificate, based on the vote of only a part of the district, gave 
 contestee no advantage as to burden of proof. 
 
 By a mistake in writing the figures or in footing contestant was 
 credited with 512 votes in Boone County. The tally sheet and the 
 evidence of three witnesses showed that the vote was 521. This would 
 increase contestant's majoritj^ previous to the elimination of illegal 
 votes, to 26. 
 
 The committee held that the ballots in the two precincts in Kanawha 
 County, where the greatest change in favor of contestee was found, 
 had not been preserved in accordance with the law or with sufficient 
 care to render the recount trustworthj'. In the other precincts of the 
 county the changes (of 1 or 2 votes in a precinct) were equally 
 against both parties, but in these two precincts a change of 34 votes 
 was made against contestant. The law required the packages contain- 
 ing the ballots to be sealed by the judges of election on the completion 
 of their I'ount, but neither of these packages was ejffectively sealed. 
 In one case an attempt had been made to seal the package with muci- 
 lage, but it was carried several miles to the county clerk's office in a 
 bag thrown across a horse's back, and in the clerk's office it was kept 
 over the storm door, from which it was several times thrown down to 
 the stone floor. When it was recounted it was found that the seal had 
 broken or had never adhered. The ballots from the other precinct 
 were forwarded in a cracker box, sealed on the top. After the recount 
 it was noticed that one of the boards on the bottom of the box was 
 
FIFTY-FIRST CONGRESS. 467 
 
 split, and there were marks apparently made by a sharp instrument 
 used to pull off the board. One of the employees of the clerk's office 
 had formerly been in the penitentiary, and was a man of intemperate 
 habits and bad character. He had been at work in the office alone for 
 some time one evening during the time that the box was there. There 
 was conflicting testimony tending to show suspicious actions on his 
 part during that time. The recount in one of the precincts was also 
 impeached by contestant calling 143 witnesses who testified that they 
 voted for him, though the recount only showed 138. The committee 
 held that these circumstances were sufficient to destroy all certainty 
 that the ballots recounted were the same and in the same condition as 
 those originally counted. Without such certainty the original count 
 must stand in preference to the recount. 
 
 The minority held that the recount of these precincts should stand. 
 The breaking of the seal in one of these packages was sufficiently 
 accounted for by the manner of its transmission and handling. The 
 marks on the bottom of the box in the other case were not shown not 
 to have existed before the ballots were placed in it, and probablj- did 
 so exist, as it was a custom of the trade to sample the cakes originally 
 contained in the box from the bottom, and similar marks were found 
 on another box procured from the same place as this one. The origi- 
 nal count in these precincts was conducted in such a way as to make 
 mistakes probable. In one of the precincts over a thousand votes were 
 cast, and the count lasted several days and nights. Part of the time 
 the light was poor and most of the judges were old men with poor 
 eyesight and Unaccustomed to such work. The recounts were regu- 
 larly conducted under the provisions of the law, there was nothing to 
 indicate that the ballots had been tampered with, and the result of the 
 recount should be accepted. The minoritj^ also held that the proof of 
 the alleged mistake "in Boone County was insufficient. 
 
 Contestant asked that two or three precincts be thrown out on the 
 ground that the officers of election were not sworn. One of these had 
 not been counted by the county commissioners under the mandatory 
 provision of the State law forbidding them to count such precincts. ^ 
 Contestee claimed that this law was unconstitutional. While it was.^ 
 mandatory in terms, the committee refrained from passing on the 
 question of whether it should be construed to be mandatory or direct- 
 ory and of its constitutionality, and counted the votes of these 
 precincts. 
 
 Illegal votes were charged by both parties, but much the larger 
 number of charges was by contestee. The committee found that most 
 of the charges of contestee were i^ot sustained. The illegal votes 
 charged were mostly those of colored mine employees, and the charge 
 was that they had not been in the State long enough to have acquired 
 the right to vote. The testimony against them was mostly "whole- 
 sale;" that is, the same witness would testify as to the illegality of a 
 large number of votes. The committee found the testimony of many 
 of these witnesses to be discredited by proof that some of the voters 
 testified to by them were legal voters. This weakened their testimony 
 in regard to others. Some of the witnesses were also discredited by 
 the fact that they had been officers of election, and had consented to 
 the acceptance of the votes of the same voters to whose disqualification 
 they testified. Much of the testimony was based upon declarations 
 made by the voters after the election, and was hence incompetent. 
 
468 DIGEST OS' CONTESTED ELECTION CASES. 
 
 Much of it wa.s also based on the pay rolls and time books of the coal 
 companies, but the insufficiency of this sort of testimony was shown 
 by proof that some voters had been residents for a longer time than 
 these pay rolls indicated. Making allowance for these circumstances, 
 the committee found that proof sufficient to overturn the presumption 
 of legality arising from, the reception of the votes by the officers of 
 election had been offered to show 13 votes illegally cast for contestant 
 and 16 for contestee. Eliminating these would leave contestant a 
 majority of 30. 
 
 The minority held that a very much larger number of illegal votes 
 had been proved against contestant than against contestee. Of the 
 361 votes attacked by contestee the committee had only found 13 ille- 
 
 fal, while of the 50 attacked by contestant thej^ had found 16 illegal, 
 'he minority believed that a fair examination of the evidence would 
 show illegal votes on each side more in proportion to the number of 
 charges made and the amount of testimony taken. The circumstances 
 were such as to i-ender it extremely probable that more illegal votes 
 would be cast for contestant than for contestee. The precincts where 
 illegal votes were charged were close to the Virginia line. Coal mines 
 had recently been opened in them, and were being woi'ked by negro 
 miners, all of whom had come from outside of the State, mostW from 
 Virginia. They were extremely migratory, and lived where they could 
 tind work. All of them lived in houses belonging to the coal compa- 
 nies, and could only live in these precincts by being employed by 
 these companies. They were all Republicans, and voted, if they 
 voted at all, for contestant. Very few of them were taxed in West 
 Virginia, and many of them had families in Virginia and habituallj' 
 referred to that State as "home." The evidence of the payrolls 
 and tax lists, and of the employers of these men was conclusive of 
 the length of their residence in West Virginia, and where that resi- 
 dence was less than a year the vote should be thrown out as illegal. 
 Eliminating onlj' those most clearhi- proved would gi^-e contestee a 
 plurality of at least 174 votes. 
 
 This case was not acted on by the House. 
 [Rowell, 631-678.] 
 
 (15) Clayton vx. Beeckineidge. 
 
 Ballot-iox stealing, false counting. Majority report that contestant 
 was elected and tlmt {on account of his d-eatJi) the seat he declared vacant. 
 Minority report for contestee. Seat declared vacant. 
 
 Majority report by Mr. Lacey; minority report by jNlr. Maish. 
 
 Mr. Clayton served a notice of contest on Mr. Breckinridge and took 
 some testimony; but while in process of taking testimony in the town of 
 Plummerville, where the ballot box had been stolen on the night of the 
 election, he was assassinated by some one. Accusations were made in 
 the newspapers and elsewhere- that the assassination was connected 
 with the theft of the ballot box or was in some way a "political assas- 
 sination," and great public attention was attracted. The contest 
 abated by the death of Mr. Clayton, but a resolution was passed by 
 the House directing the chairman of the Committee on Elections to 
 appoint a subcommittee to take testimony in the case "in regard to 
 the methods of said election, to the contest, and all events relating 
 
FIFTY-FIRST CONGRESS. 469 
 
 thereto or arising therefrom after said election, and as to whether the 
 contestant or the contestee, or either of them, was lawfully elected." 
 
 Acting under the broad terms of this resolution, the subcommittee 
 proceeded to Arkansas and took testimony in regard to the killing of 
 Mr. Clayton, and a number of other murders and disturbances alleged 
 to have been connected with the election or contest, as well as the 
 question which candidate was elected. These questions were discussed 
 pro and con in the reports at great length and with some feeling, but 
 as theyhave no bearing on the issues of the contest proper thej' will 
 not be further outlined here. 
 
 On the returns as made to the governor, Mr. Breckinridge had a 
 majority of 846 votes. In this was not included the vote of the Plum- 
 merville box, which had been stolen by armed men on the evening of 
 the election before the votes were counted. At this box 697 votes had 
 been cast. The subcommittee took the testimony of the voters who 
 voted for each candidate at this box, and counting these, Mr. Breck- 
 inridge's majority was reduced to 413. The theft of the Plummerville 
 box was conceded, and accepting the proof of the vote, the minority 
 of the committee held that Mr. Breckinridge's rightful majority was 
 413. The majority held that this 413 majority was overcome, and a 
 majority shown for contestant, by testimony taken by the subcom- 
 mittee in regai'd to four other precincts. In each of these precincts a 
 larger number of voters than was returned as voting for Mr. Clayton 
 was called and testified to having voted for him. The ballot boxes, 
 with the numbered ballots of the voters, were produced, and in the 
 four precincts, in addition to those already counted as voting for Mr. 
 Clayton, 8, 29, 48, and 62 voters, respectively, the ballots correspond- 
 ing to whose numbers in the box contained the name of Mr. Breckin- 
 ridge, testified that they had deposited ballots containing the name of 
 Mr. Clayton. The committee took this as evidence that the ballot 
 boxes had been stuffed, and rejected the returns. There being no proof 
 how many votes were cast for Mr. Breckinridge, the only votes counted 
 in these precincts were those proved by the testimony of the voters to 
 have been cast for Mr. Clayton. Counting in this way would give 
 Mr. Clayton a majority of 469. Or, if the returns were simplj'' rejected, 
 and no votes counted for either party, he would have a majority of 11. 
 The committee therefore recommended resolutions declaring that Mr. 
 Clayton was elected, and that on account of his death the seat be 
 declared vacant. 
 
 The minority of the committee arraigned the fairness of the 
 majority, both in the. manner of taking the testimony and in the state- 
 ments of the report. Quotations were made from the committee 
 report to show that the impression had been sought to be created that 
 the majority of Mr. Breckinridge was due to the theft of the Plummer- 
 ville box, whereas, in fact, if all the votes cast at that box had been 
 for Mr. Clayton it would not have given him a majority. The com- 
 mittee had occupied less than two weeks in taking testimony, although 
 the usual time, in an ordinary contest involving a narrower range of 
 inquiry, was ninety days. Mr. Breckinridge claimed not to have had 
 time to make all his defense, and consented to an adjournment of the 
 taking of testimony in Arkansas only upon the agreement that he 
 would be permitted to call witnesses in Washington. On the return 
 of the subcommittee to Washington he had applied for permission to 
 call the remainder of the voters in the four precincts above mentioned 
 
470 DIGEST OF CONTESTED ELECTION CASES. 
 
 and certain othor specified witnesses. This application had been 
 refused Ijy the subcommittee, in violation, as claimed }>y Mr. Breckin- 
 ridge and the ininoritjr, of the agreement entered into in Arkansas. 
 The stenographer had omitted to take down the conversation in which 
 this agreement was alleged to have been made, and conflicting versions 
 of it were given bj' the majority and minoritj^ of the subcommittee. 
 On account of all these circmnstances, and because this was not an 
 ordinary contest between parties, but an investigation conducted by a 
 committee of the House, the minority held that it would be unfair to 
 count for Mr. Clayton the votes said to have been proved in the 
 assailed precincts without also counting for Mr. Breckinridge the 
 remainder of the votes, in regard to which no testimony had been 
 taken. If this course were followed the majority of Mr. Breckinridge 
 would not be overcome. But the. testimony by which fraud was sought 
 to be shown was untrustworthj^ Most of the voters testifying were 
 weak and very ignorant. Those of them who had voted for Mr. 
 Breckinridge would perhaps have been afraid to do so except for the 
 protection of a secret ballot, and when this secrecy was removed by 
 calling on them to testify the same causes would deter them from tes- 
 tifying that the}'' had voted for him. Such testimonj' was certainly 
 not sufficient to overthrow the oaths of all the officers of election. 
 
 The case was debated several days, and the resolutions presented by 
 the. committee declaring the seat vacant were adopted by a vote of 
 105 to 62. 
 
 [Rowell, 679-Y81.J 
 
 (16) Keenaghan vs. Hooker. 
 
 Partisan and illegal appointment of election officers., fraudulent regis- 
 tration., false counting ^ballot-hox stuffing., interference with United 
 States supervisors., violence., and intimidation. Repcn't for contestee. 
 No action hy the House. 
 
 Report by Mr. Rowell. 
 
 The returns of this election showed a majority of 8,491 for cortestee. 
 Contestant sought to overcome this majority by a charge of general 
 conspiracy and the commission of the frauds named above. The com- 
 mittee found that the evidence showed a large amount of fraud of all 
 the sorts charged, but not enough to overcome all of the majoritj^ of 
 contestee by rejecting the returns of the precincts where fraud was 
 proved and restating the vote according to the evidence. 
 
 It was shown that the colored population of the district was about 
 twice that of the white population, and that the colored voters were 
 nearly all Republicans; that the election officers in many of the pre- 
 elncits were all Democrats, and in the other precincts the Republican 
 inspector was illiterate and incompetent; that in the city of Jackson 
 and some other places violent demonstrations were made the evening 
 before election for the purpose of keeping the colored voters from the 
 pf)lls ; that in part of the district no Republican tickets were distributed ; 
 and there was general testimony showing that public sentiment favored 
 carrying the election for contestee by fraud and violence if necessary. 
 The committee found that the evidence justified throwing out the 
 returns of the city of Jackson and fifteen or twenty precincts in other 
 parts of the di.strict, and in some cases counting votes for contestant 
 on proof aliunde. In a number of precincts a larger number of voters 
 
FIPTY-FIEST CONGRESS. 471 
 
 testified to having voted for contestant than were returned for him, 
 and in other precincts there was other proof of fraud. But the fraud 
 not being shown to have affected enough votes to overcome all of the 
 majority returned, the committee recommended resolutions declaring 
 contestee elected. 
 
 There was no action by the House. 
 
 [Rowell, 783-799.] ' ' 
 
 (17) Hill I'.f. Catchings. 
 
 Conspiracy, interference with United States supervisors, and fraud. 
 Committee report fyr contestee. Report In/ Mr. Lacey to declare the 
 seat vacant. No action hy the House. 
 
 Maiorit}^ report by Mr. Rowell; dissenting report by Mr. Lacey. 
 
 The committee found that while the majority of 7,011 returned for 
 contestee was much larger than his real majority, the testimony did 
 not show frauds sufficient to overcome the entire majorit^^ The dis- 
 trict contained about four times as many Republican voters as Demo- 
 cratic, but the Republicans were not entirely united nor properly 
 organized. There was evidence, however, that the party of contestee 
 would have endeavored to carry the election by fraud if it could not 
 be carried without it, and that in a considerable number of precincts 
 fraud was resorted to. In some cases United States supervisors were 
 prevented from discharging their duties, and in all such cases the com- 
 mittee held that the returns were invalidated. In most of the pre- 
 cincts the officers of election were all Democrats, in violation of the 
 law, and where they were not the Republican inspectors appointed 
 were not the ones recommended by the party committees, and were 
 either entirely incompetent or were distrusted by the party they were 
 supposed to represent. The committee held that these circumstances 
 were suspicious, but that the returns could not be thrown out on 
 account of them without further evidence. 
 
 A letter written by the contestee was in evidence, written to the 
 chairman of the district committee of his party after the election, and 
 referring to the taking of testimony in the contest, in which occurred 
 the words: 
 
 I do not think it would hurt at all if one or two of them should disappear. It might 
 have a very liappy effect on Hill, his witnesses and lawyers. 
 
 The committee found that this was "a suggestion to hinder unlaw- 
 fully the taking of testimony in the case;" but, as there was no evi- 
 dence that the suggestion was acted on, it could not affect the result of 
 the contest. The committee accordingly recommonded resolutions 
 declaring contestee elected. 
 
 Mr. Lacey filed a dissenting report, in which,he contended that the 
 law ought to be that where a successful candidate, or others with his 
 connivance, engages in fraud, bribery, or intimidation to affect the 
 result of the election, the election ought to he declared void, even if it 
 can not be shown that the contestant was elected. In this case the 
 existence of the frauds was clearly shown, and the attempt of contestee, 
 as shown in his letter, to suppress the evidence of the frauds connected 
 him with their commission and brought him within the scope of the 
 above rule. 
 
 There was no action by the House. 
 
 [Rowell, 801-813.] 
 
472 DIGEST OF CONTESTED ELECTION CASES. 
 
 FIFTY-SECOND CONGRESS, 1891-1893. 
 
 Committee on Elections. 
 
 Mr. O'Fereall, Virginia, Mr. Johnstone, South Carolina, 
 
 Moore, Texas, Haugen, Wisconsin, 
 
 Cobb, Alabama, Taylor, Tennessee, 
 
 Paynter, Kentucky, Doan, Ohio, 
 
 Brown, Indiana, Johnson, Indiana, 
 
 LocKWOOD, New York, Reybuen, Pennsylvania, 
 
 Lawson, Georgia, Clark, Wyoming, 
 Mr. Gillespie, Pennsylvania. 
 
 Cases. 
 
 (1) Alexander K. Craig vs. Andrew Stewart, Pennsylvania. 
 
 (2) Henry T. Noyes -ys. Hosea H. Rockwell, New lorl'. 
 
 (3) John B. Reynolds vs. George W. Shonk, Peiuisylrania. 
 
 (4) John V. McDuffie vs. Louis W. Turpin, Alabama. 
 
 (5) Thomas R. Greevy vs. Edward Scull, Pennsylvania. 
 
 (6) Thomas E. Miller vs. William Elliott, South Carolina. 
 
 (1) Craig vs. Stewart. 
 
 Illegal votes. Non.registered voters failing to mal-e the affidavits 
 required hy Pennsylvania law. Majority report for contestant; minor- 
 ity report for sitting msmher. Contestant seated. 
 
 Majority report by Mr. Brown; minority report by Mr. Johnson. 
 
 This case involved some of the technical questions discussed in the 
 case of Greevy vs. Scull, below, but turned upon the single question 
 of unregistered voters, which is the only one discussed in either report. 
 
 According to the returns the sitting member was elected by a 
 plurality of 123 votes. Contestant claimed that a greater number of 
 votes than this returned plurality had been cast for the sitting mem- 
 ber by persons whose names did not appear on the register and who 
 did not make the affidavits required by law of unregistered persons. 
 
 The constitution of the State of Pennsylvania provided (article 8) 
 that— 
 
 Every male citizen twenty-one years of age possessing the following qualifications 
 shall be entitled to vote^at all elections: (1) He shall have been a citizen of the United 
 States one month; (2)' he shall have resided in the State one year, or, if having 
 previously been a qualified elector or native-born citizen of the State, he shall have 
 removed therefrom and returned within six months immediately preceding the 
 election; (3) he shall have resided in the election district where he shall offer 
 to vote at least two montns immediately preceding the election; (4) being twenty- 
 two years of age or upward, he shall have paid within two years a State or county 
 tax which shall have been assessed at least two months and paid at least one month 
 before the election. 
 
 The registration law of Pennsylvania (act approved January 30, 
 1S74), providing for a registration of all the electors of the State, con- 
 tained, however, the clause: 
 
 And no man shall be permitted to vote at the election on that day whose name 
 is n(]t on said list, unless he shall make proof of his right to vote as hereinafter 
 required. 
 
FIFTY-SECOND C0NGRES8. 473 
 
 The "proof required" was an affidavit from the voter himself and 
 at least one witness, showing explicitly that the voter had the qualifi- 
 cations specified in the statute and constitution, which affidavits were 
 required to be preserved by the election board and, at the close of the 
 election, filed with the prothonotary, in whose office they were to 
 remain on file, subject to examination like other election papers. 
 
 The courts of Pennsylvania had decided that compliance with this 
 law was mandatory on the voter. Congress had decided the question 
 both ways. 
 
 Contestant sought to prove by the certificates of the various pro- 
 thonotaries certifying to copies of all the affidavits on file in their offices, 
 and by a comparison of the registration and poll lists, showing a large 
 number of names on the poll lists which were not included in either the 
 registration list nor in the certified copies of affidavits, that these per- 
 sons not so included must have voted without having complied wi'^h 
 the law either by registration or the making of affidavits. Contestee 
 denied the sufficiency of the evidence to establish this conclusion, and 
 contended that the votes would not be illegal even if the contention 
 were established. 
 
 It was conceded by both sides that if these votes were illegal a 
 sufficient preponderance of them was cast for the sitting mem1)cr to 
 change the result of the election. It was conceded also that a large 
 part of these voters did in fact possess the constitutional qualifications, 
 and that they were not challenged at the polls, though the law made it 
 the duty of the judges of election to challenge unregistei'ed voters. 
 
 The majority of the committee held that the absence from the 
 prothonotary's office of a large number of the affidavits required to be 
 there, especially when many other affidavits were found there, was 
 sufficient proof to raise the prima facie conclusion that the missing 
 affidavits were never taken. 
 
 We insist that the presumption is that if these affidavits had been executed they 
 would have been found where the law provides they should be filed, and that on failure 
 of the officer to produce them the burden of proof was cast on the contestee to show 
 that they were in fact executed. He offered no evidence on this point, and by this 
 failure of the contestee the prima fade case of the contestant becomes conclusive. 
 
 The minority referred to a number of cases in which under this and 
 similar laws it had been held that the possession of the constitutional 
 qualifications established the right to vote, which could not be nega- 
 tived by the failure of some of the election officers to perform all of 
 their duty with reference to securing the evidence of the existence 
 of these qualifications; but no definite ruling on this point was stated 
 by the minoritj'. They denied, however, that the certificate of the 
 prothonotary to copies of the election affidavits on file in his office at a 
 certain date was sufficient evidence that no other papers had ever been 
 filed, and still less could it establish the conclusion that no such affi- 
 davits had been made by the voters at the polls. The burden of proof 
 was on the contestant to prove his whole case — to prove that the affi- 
 davits were not in fact made — which he had not attempted to do. 
 
 The minority concede that the contestant has shown a sufficient number of votes 
 to have been cast by nonregistered persons for the contestee, and counted for him by 
 the election officers, to overcome his plurality, but they strenuously deny that the 
 contestant has proved that these persons failed to make and procure affidavits re- 
 quired of nonresident [nonregistered?] voters, and they doubt whether he i,s entitled 
 to be seated even if he has; that the burden of proof is on the contestant to establish 
 his claim and contest is too plain to require the citation of authority. Assuming for 
 
474 DIGEST OF CONTESTED ELECTION CASES. 
 
 sake of the argument that he is entitled to a seat in this body if he proves that non- 
 resident [nonregietered?] voters sufficient in number to overcome the plurality of 
 the contestee voted for the latter at the said election without having made the affi- 
 davits required by law, it will not suffice for him to prove a part of these facts. He 
 must establish his entire case, and show affirmatively that every method whereby 
 such persons might have become legal voters was neglected. It is not enough that 
 he has proven certain persons to have voted for the contestee at such election with- 
 out having made and furnished affidavits, since such persons may have been duly 
 registered, and hence possessed the right to vote without affidavits; nor will it 
 suffice for him to show that certain persons voted without having been registered, 
 since nonregistered voters could still enjoy the right of suffrage by making and pro- 
 ducing affidavits. * * * 
 
 On the question as to whether the contestant has sufficiently proven that no affi- 
 davits were made and produced by the nonregistered voters at this election, the 
 minority contend that he has not. When a person offering to vote is challenged at 
 the polls no presumptions are indulged in favor of his right to vote. He is then and 
 there called upon to furnish evidence of his qualifications as an elector. But when 
 he has once voted unchallenged, and his ballot has been deposited in the ballot box 
 and counted and canvassed and a certificate of election issued upon it, quite a differ- 
 ent rule prevails. Every reasonable intendment should then be indulged in his 
 favor, and his vote should not be rejected upon technical presumptions and because 
 some degree of doubt may be thrown upon it. Particularly is this the case where a 
 contestant upon whom rests the burden of proof and who asks that the vote should 
 be rejected refuses to make positive proof of the voter's disqualification, which it 
 appears it is easily within his power to do if the voter in point of fact had no* the 
 right of suffrage. 
 
 The officers of election or the voters should have been called to 
 show that the affidavits were not in fact taken. 
 
 The contestee is not required to prove that this improper disposition of the affi- 
 davits was actually made by the return judge, for the reason that the contestant has 
 the burden of proving that the affidavits were not taken, and his having merely 
 shown that they were not filed in the prothonotary's office does not establish the 
 fact that they were not taken. 
 
 The case was fully debated in the House, and the resolutions pro- 
 posed by the minority were defeated by a vote of 57 to 152. The 
 resolutions of the committee were then adopted without division, and 
 on February 26, 1892, Mr. Craig was sworn in. 
 
 [Stofer, 1-21. J 
 
 (2) Notes vs. Rockwell. 
 
 Illegal votes; distinguishing inarhs; hriheiy; unauthorized recount. 
 Majority report fm' contestant; minnnty report for contestee. Con- 
 testee retained the seat. 
 
 Majority report by Mr. O'Ferrall; supplementary report by ]Mr. 
 Haugen; minority report by Mr. Cobb. 
 
 Under the law of New York the inspectors of election were required 
 to make out and sign three written statements of the result, and to 
 attach to these statements samples of each of the sorts of ballots cast, 
 writing upon each the number received like the sample. The remain- 
 ing ballots were then to be destroyed. 
 
 In six districts of four wards of the city of Elmira there were dis- 
 crepancies between the numbers written in the body of the returns 
 and the numbers written on the sample boUots. If the statements in 
 the body of the returns were received, contestant was elected bj'^ a plu- 
 rality of 30 votes. If the statements on the sample ballots were 
 received, contestee had a plurality of 15 votes. The county canvassers 
 of Chemung County counted the statements on the sample ballots. 
 The matter was carried into the State courts, and the supreme court. 
 
FIFTY-SECOND CONGRESS. 475 
 
 in special session, issued a writ of peremptory mandamus commanding 
 the county canvassers to count the vote according to the face of the 
 returns. An appeal was taken from this order, and pending the appeal 
 the State board of canvassers met, counted the votes as indorsed on 
 the sample ballots, and awarded the certificate of election to Rock- 
 well. The supreme court, in regular session, on appeal, affirmed the 
 action of the court in special session, and this order, being appealed to 
 the court of appeals, was again affirmed. The committee held that 
 upon these facts contestant -w&s jorima fdcle elected, and the burden of 
 proof was on contestee to establish his title to his seat. 
 
 Your committee are of the opinion that the decision of the court of last resort of a 
 State upon the construction of a statute of that State and in a matter before them 
 involving the construction of a statute of that State should be binding upon them, 
 and therefore they held that under the decision of the said court of appeals affirm- 
 ing the lower court Noyes was prima facie elected and was entitled to and ought to 
 have been awarded the certificate of election, and that the burden of proof was 
 shifted from Noyes to Rockwell, and it was incumbent upon him (Rockwell) to 
 establish his title to the seat upon the full merits of the case. 
 
 Upon the merits contestee sought to sustain the count as written on 
 the ballots in the six Elmira districts by showing that it was based on a 
 recount of the ballots of these districts. On the night of the election 
 the sample ballots were not attached to the returns nor the ballots 
 destroyed, as the law required, and when the county clerk refused to 
 receive the returns in this form a part of the board of inspectors met 
 and recounted the ballots, attached the samples, and wrote on them the 
 results of the recount. The ballots recounted had no legal existence, 
 they were not recounted by the full board of inspectors, and they had 
 not been in legal custody nor kept under any effective precautions. 
 The committee rejected these recounts. The ballots — 
 
 had no legal existence after the board of inspectors dissolved the night of the election 
 and the board itself was fundus officio; there was no legal custodian nor depository 
 of the ballots; they were worthless as evidence * * * 
 
 Now, while we hold that under the statutes of New York there could not be a 
 legal recount of ballots in any election, yet, even if it were authorized by law, no 
 confidence whatever could be reposed in a recount of ballots which had been kept 
 as the ballots were from the time they were counted on the night of the election to 
 the recount made from twenty-four to forty-eight hours thereafter. 
 
 There were a few illegal and improperly rejected votes, and 2 
 votes alleged to have been bribed, which the committee corrected 
 according to the evidence, and found a majority of 6 votes still 
 remaining for contestant. These votes could only be overcome by 
 rejecting 16 ballots known as the "Doyle ballots," on the disposition 
 of which the case turned. 
 
 In the town of Waterloo, Seneca County, at two neighboring poll- 
 ing places, the name of Robert Earl, which headed the list on both 
 Republican and Democratic ballots as candidate for justice of the 
 court of appeals, was scratched on 16 Republican "paster" ballots, 
 and the names of A. Doyle, B. Doyle, C. Doyle, D. Doyle, E. Doyle, 
 F, Doyle, G. Doyle, H. Doyle, I. Doyle, J. Doyle, K. Doyle, L. 
 Doyle (2), M. Doyle, N. Doyle, and T. Doyle substituted, all written 
 in the handwriting of one Duncan McArthur, a Republican committee- 
 man. There was said to be some evidence that McArthur had bribed 
 2 voters who did not vote these "Doyle ballots," and there was printed 
 in the record a deposition (given in full in the report) of an obviously 
 stupid or drunken witness who described himself as "a little off" in 
 
476 DIGEST OF CONTESTED ELECTION CASES. 
 
 his head, who had a "faintest recollection" that his was a Doyle bal- 
 lot, and who was shown by the stenographer's notes to have said: "He 
 gave me a pair of pants" for his vote. Witness insisted on correcting 
 this statement to "I wished he did give me a pair of pants," and then 
 refused to sign the testimony even as corrected. 
 
 On this testimony the contestee asked that the 16 "Doyle ballots" 
 be thrown out for bribery, which the committee refused to do, on the 
 ground that there was only this very doubtful deposition against one 
 of them and no evidence at all in regard to the others. If the ballots 
 were to be objected to as having distinguishing marks, the committee 
 called attention to testimony (objected to, however, b}^ contestee as 
 testimony in chief taken in time for rebuttal) showing that in one pre- 
 cinct there were 28 ballots cast for Rockwell in which there was a 
 check mark in one corner and a figure, on some "5" and in others 
 "8," on the diagonally opposite corner. 
 
 Since these findings still left contestant a majority of 6 votes, the 
 committee recommended resolutions giving him the seat. 
 
 Mr. Haugen assented to all of the report, except the statement that 
 2 voters had been bribed to vote for Noyes. He pi'esented a supple- 
 mentary report stating that there was no evidence how the}- voted. 
 
 Mr. Cobb and Mr. Gillespie signed a minority report, the conclu- 
 sions of which secured the approval of the House. They did not dis- 
 sent from the finding of the committee in regard to the recounts, but 
 on minor issues reduced the majority of contestant to 4 votes. They 
 then threw out all the " Doyle ballots" and thus found a majority for 
 the sitting member. They said: 
 
 Let it be remembered that fraud can rarely, if ever, be proved by direct evidence, 
 and tliat the rule is that whenever a sufficient number of independent circumstances 
 which point to its existence are clearly established a prima fade case of its existence 
 is made, and if this case is not met by explanation or contradiction it becomes con- 
 clusive. 
 
 The circumstances in this case were: (1) the Doyle ballots were 
 pasters which had been written on contrary to law; (2) they were so 
 marked as to be identified; (3) they were all prepared by one man, who 
 "was a briber of voters;" (4) one voter at least and, as the minority 
 believed, two, were bribed to cast Doyle ballots; and (5) the name 
 Doyle was fictitious. 
 
 Moreover, the ballots marked in this way were in contravention of 
 the statute which provided that " No voter shall place any mark upon 
 his ballot by means of which it can be identified as the one voted by 
 him," and made violation of this provision punishable as a misde- 
 meanor. The 28 Rockwell marked ballots were all marked alike, and 
 hence were not open to the same objection. Moreover, the testimony 
 in regard to them was not properly in the record. 
 
 This case was very fully debated, and the minority substitute, 
 declaring that Noyes was not elected, was adopted (April 22, 1892) by 
 a vote of 140 to 98. The substitute resolution declaring Rockwell 
 elected was then adopted by a vote of 128 to 106. A motion to recom- 
 mit the case to the committee to take further testimony was defeated 
 by a vote of 110 to 124, and the resolutions as amended were adopted 
 without division. 
 
 [Stofer, 23-4.5.] 
 
FIFTY-SECOND CONGRESS. 477 
 
 (3) Reynolds rs. Shonk. 
 
 J*ra/ud, bribery, and intimidation/ excessive expenditure for cam- 
 paign fund. Report for sitting member, wlw retained the seat. 
 
 Report by Mr. Moore. • 
 
 According to the returns, the sitting member was elected by a plu- 
 rality of 1,484. Contestant did not claim the election for himself, but 
 sought to impeach the title of- contestee by alleging "fraud in the 
 election, and bribery, intimidation, and corruption of voters * * * 
 in e^'wy election district in the Twelfth Congressional district of Penn- 
 sylvania." Contestee demurred to the very vague notice of contest 
 and denied its allegations. 
 
 The committee took no formal action upon the exceptions filed to the notice of 
 contest, nor pronounced their decision upon it, but we are of opinion that the notice 
 of contest in its various charges upon which there was any testimony is too vague 
 and indefinite; and does not conform to the act of Congress referred. 
 
 The committee, however, heard the whole case upon its merits. The 
 principal charge seemed to be that Mr. Shonk spent $9,550 in his can- 
 vass, which he admitted, explaining specifically the purposes for which 
 it was expended. The committee found that by the testimony of "a 
 great many prominent men and officials of both parties," these sums 
 "were not immoderate, but rather in conformity to the custom as 
 practiced in Luzerne County." 
 
 The report was unanimous, and the resolutions recommended con- 
 firming the sitting member in his seat were passed on February 15, 
 1893, without debate or division. 
 
 [Stofer, 47-50.] 
 
 (4) MCDUFFIE vs. TURPIN. 
 
 False counting. Majority report for contestee; minority report for 
 contestant. Contestee retained the seat. 
 
 Majority report by Mr. Lockwood; minority report by Mr. Johnson. 
 
 The issues and testimony in this case were very similar to those in 
 the case between the same parties in the previous Congress, and to 
 other cases from the same district (the Fourth Alabama). According 
 to the i-eturns as canvassed and filed with the secretary of state, Tur- 
 pin received 9,595 votes: McDuffie 4,931, and G. T. McCall 3,899. 
 McDufiie contested, alleging that in a large number of precincts votes 
 cast for him were counted for Turpin or McCall, and that in other 
 precincts in which he received large majorities the returning officers 
 failed to deliver or the county boards refused to canvass the returns. 
 The evidence in most cases, as in previous contests, was the testimony 
 of unofficial ticket distributers and clerks, who gave out McDuffie 
 tickets one at a time to voters, watched them voted, and kept a list or 
 tally sheet of those who voted, which list, when it differed very rad- 
 ically from the returns, and was in accordance with the known polit- 
 ical division of the precinct, while the returns were the reverse of 
 this division, he claimed was sufficient to establish the fraudulent 
 character of the returns and to determine the true vote. 
 
 In a number of precincts in which elections were held, but the 
 returns failed to be made or were not counted and the evidence was 
 not conti'adicted, the committee counted the vote as shown by the evi- 
 
478 DIGEST OF conI'ested election cases. 
 
 dencc. This would add to the vote of Turpin 13 votes, to that of 
 McDufBe 684 votes, and to McCall 1 vote — a change not sufficient to 
 overcome the returned majority of contestee. In the other precincts, 
 in which returns were made and counted, the committee refused to 
 disturb them. 
 
 It ia a well-established rule of law that the best evidence should be produced if 
 possible to produce the same. In this case it was within the power of the contestant 
 to have produced from each of the precincts the ballot boxes with the ballots in each 
 of the election precincts, with the exceptions hereinbefore stated, 'and the ballots, 
 together with a list of all the voters, could have been placed in evidence, as there is 
 no proof of their loss or destruction, and if a fraudulent count of the ballots by the 
 inspectors and a fraudulent return of the votes for the several candidates had been 
 made, the same would have fully and satisfactorily appeared by a recount and exam- 
 ination of the ballots. 
 
 Instead of this best evidence, contestant had offered the lists kept by 
 his partisans, who were frequently ignorant and were stationed from 
 30 to 100 feet from the polls. 
 
 It would be an exceedingly dangerous precedent to permit the actual returns, as 
 made by the inspectors and sworn officers of the election, to be disregarded and 
 impeached by returns made out by irresponsible partisan workers at the polls. 
 
 The committee therefore recommended resolutions declaring con- 
 testee entitled to his seat. 
 
 The minority report went elaborately into the history of other con- 
 tests from this district, showing that its elections had been disputed 
 for many years, and that the House, both in Republican and Demo- 
 cratic Congresses, had usually found large amounts of fraud proved. 
 Newspaper articles were also quoted, showing that the existence of 
 fraud was recognized and deplored by the people of the State. The 
 testimony in regard to each precinct in the present case was then 
 analyzed, with the result, according to the findings of the minority, 
 that a majority of 604 votes for contestant was conclusively proved, 
 and the probability was established that his actual majority was much 
 larger. 
 
 The case was fully debated in the House, and on February 28, 1893, 
 the minority substitute resolution declaring contestant elected was 
 defeated by a vote of 64 to 190. The committee resolution was then 
 adopted without division and contestee retained his seat. 
 
 [Stofer, 51-140. J 
 
 (5) Gkeevy vs. Scull. 
 
 Illegal votcv; /'rrrf/ali/r prvclncts. Report for contestee. No action, 
 hy the House. 
 
 Report by Mr. O'Ferrall. 
 
 This case involved practically the same legal questions as the case of 
 Craig vs. Stewart, supra., but the report goes much more fully into 
 the technical issues, and does not mention the general question of the 
 effect of the Pennsylvania registration law, discussed in the former 
 case. The record in this case covered 2,633 printed pages, and involved 
 the separate investigation of about 1,300 disputed votes, most of them 
 cast by voters who were not registered and did not appear to have 
 made the affidavits required by law of nonregistered voters. Con- 
 testant relied in most cases on the testimonj"- of the voters themselves 
 to show for whom they voted. The committee found that this evidence 
 
FIFTY-SECOND CONGRESS. 479 
 
 was secondaiy and inadmissible, since the best evidence, the numbered 
 ballots, could have been produced. However, the committee consid- 
 ered it ''proper to report the names of such persons who cast illegal 
 votes, and who, as shown by their own testimony, voted for the con- 
 testee." 
 
 Contestant attacked the vote of eight townships on the ground that 
 the votes were cast in boroughs which were distinct from the town- 
 ships. In each of these cases the boi'ough poll was the only place 
 where the residents of the township could vote and was their usual 
 place of voting. The committee held, however, that the constitutional 
 provision of the Pennsylvania constitution of 1874 that a voter "shall 
 have resided in the election district where he shall offer to vote at least 
 two months immediately preceding the election " required the rejection 
 of these votes. They therefore excluded the 1,200 votes cast for con- 
 testant and the 1,363 votes cast for contestee in these boroughs by 
 voters resident in the townships. 
 
 While the committee regard it as a hardship upon the electors in these different 
 townships to reject their votes, yet the constitution and laws of Pennsylvania must 
 be obeyed. The provision of the constitution of that State requiring, without quali- 
 fication, the electors to vote in the districts in which they had resided for at least 
 two months immediately preceding the election must be enforced. A mistaken idea 
 of the law upon the p^rt of the electors, however honest, or a neglect or refusal upon 
 the part of the lower courts to establish voting places within the townships, can not 
 render void the plain provisions of the constitution. The power to fix the qualifica- 
 tions of voters is vested in the State, subject only to the limitation contained in the 
 fifteenth amendment to the Constitution of the United States. Each State fixes for 
 itself these qualfications, and the United States must adopt and has uniformly adopted 
 the State law upon the subject, and the House of Eepresentatives should not in any 
 case fail to act in conformity with it. 
 
 There were also several districts in which the boundaries of pre- 
 cincts had been changed previous to this election, but it appeared in 
 each case that the voters voted at the polling place in the precinct in 
 which they were actually resident and had been resident for the legal 
 period, and that the registration lists of the former precincts were in 
 use at the polls of the new precincts, and sufficiently established the 
 qualifications of the voters. These votes were counted as returned. 
 Certain minor technical questions involving a few votes were also 
 decided, and the committee submitted four statements, based on four 
 different theories. Statement No. 1 excluded all illegal votes, includ- 
 ing those in which the only evidence of the way the voter voted wa's 
 the testimony of the voter himself. Statement No. 2 excluded only 
 those illegal votes in regard to which the ballots were introduced. 
 Statements 3 and 4 were submitted on the basis of contestant's claim 
 that votes cast in new townships and those cast by residents of the 
 annexed territory of Altoona should be rejected, though the committee 
 held that these votes were legal. Contestee received a majority by 
 all these statements: By statement No. 1, 716 votes; No. 2, 687 votes; 
 No. 3, 614 votes; No. 4, 585 votes. Statement No. 2 was adopted by 
 the committee as correct. 
 
 The committee recommended resolutions declaring contestee entitled 
 to the seat. There was no minority report, and (the report having 
 been submitted late in the second session) there was no action by the 
 House. 
 
 [Stofer, 141-164.] 
 
480 digest of contested election cases. 
 
 (6) Miller vs. Elliott. 
 
 Jji'fectlve hallots. Majority report for contestee; minority rejportfor 
 coniestant. No action hy the House. 
 
 Majority report by Mr. Paynter; minority report by Mr. Johnson. 
 
 According to the returns as certified by the precinct managers, 
 Miller received 7,026 votes, Elliott 3,793 votes, and E. M. Brayton 1,413 
 votes, a plurality for contestant of 3,233 votes. In addition to these 
 votes. Miller received 324 votes in two precincts in which all his ballots 
 were thrown out by the precinct boards on the grounds hereafter dis- 
 cussed, making his majority of the vote as cast 3,557. Elliott appeared 
 before each of the boards of county canv.assers in the district, in person 
 or by counsel, and moved that all of the ballots cast for Miller be 
 thrown out on four grounds: (1) That the ballots were one-sixteenth 
 of an inch shorter than required by the statute of the State; (2) that 
 the word "for" appeared on the ballots preceding the word "Con- 
 gress;" (3) that the paper on which the ballots were printed was not 
 "plain white paper," as required by statute, and (4) that the name 
 "Thomas E. Miller" was so printed upon the ballots as to be visible 
 through their backs when folded. The boards of canvassers in four 
 counties sustained this motion, and excluded all the ballots cast for 
 Miller; the boards in the remaining five counties overruled the motion 
 and counted the votes as returned. Counting the Miller votes in the 
 five counties and rejecting them in the four would give Elliott a plu- 
 rality of 478 votes. Appeal was taken to the board of State canvassers 
 from all of these decisions — by Miller from one set of decisions and by 
 Elliott from the other. The vote in the State canvassing board on this 
 appeal was a tie, and no decision was reached. The matter was then 
 taken to the supreme court of the State, which decided that, the Statfi 
 canvassing aboard having failed to come to any decision, the decision 
 of the county canvassing board in each case must stand. A writ of 
 mandamus was therefore issued to the State canvassing board com- 
 manding them to make out a statement of the vote as certified to them 
 by the boards of county canvassers. The determination of the case 
 on the merits was recognized as the province of the House of Represent- 
 atives. The Miller votes were therefore counted in the five counties 
 and not counted in the four, and the certificate was issued to Elliott.' 
 
 The statute of South Carolina prescribing the form of ballot to be 
 used was as follows: 
 
 Sec. 115. The voting shall be by ballot, which ballot shall be of plain white paper 
 of two and a half inches wide by five inches long, clear and even cut, without orna- 
 ment, designation, mutilation, symbol, or mark of any kind whatsoever, except the 
 name or names of the person or persons voted for and the office to which such per- 
 son or persons are intended to be chosen, which name or names and office or offices 
 shall be written or printed, or partly written and partly printed, thereon in black 
 ink; and such ballot shall be so folded as to conceal the name or names thereon, and 
 so folded shall be deposited in a box to be constructed, kept, and disposed of as 
 hereafter provided; and no ballot of any other description found in any election box 
 shall be counted. 
 
 Contestee claimed that all of Miller's ballots were obnoxious to this 
 law for the four reasons above given, and the committee sustained the 
 
 1 This statement is derived principally from the minority report, the briefs and 
 testimony, as the majority report does' not clearly state the history and issues of the 
 case. 
 
FIFTY-SECOND CONGBESS. 481 
 
 claim on the last two grounds, viz, that the paper on which Miller's 
 ballots were printed ("40-pound white book paper," described by- 
 some witnesses as of a "dirty white" or "dark white" color) was not 
 "plain white paper" within the meaning of the law; and that the 
 name "Thomas E. Miller" was printed in heavy type in a position on 
 the ticket which made it possible to distinguish it from the back when 
 the tickets were folded. The testimony of some witnesses was quoted 
 to show that they could distinguish the folded Miller ballots, at a con- 
 siderable distance, from the Elliott ballots, which were printed "on a 
 finer and whiter paper," and that if the ticket was folded in a certain 
 manner and turned in the right direction it could be distinguished at 
 a distance of 6 or 8 feet by the impression of the type showing through 
 the back. A witness testified to a conversation with contestant, indi- 
 cating that contestant had procured the ballots to be so printed for 
 the purpose of making them distinguishable. Contestant denied this 
 conversation. 
 
 The object of the law was to, so far as possible, prevent briberj^ and intimidation 
 of the voters; that for whom the elector voted should alone be his secret, thus pre- 
 venting anyone from knowing or questioning him as to the ticket which he voted. 
 * * * The terms of the law requiring the ballot "shall be so folded as to conceal 
 the name or names thereon " is no more mandatory in its terms than its other provision 
 regulating as to size, kind of paper, ink, etc. It was not proper to count the ballots 
 which were excluded from the count. The terms of the act are plain and unambig- 
 uous and give a full and conclusive answer to the charge that the ballots were improp- 
 erly omitted from the count, which no sophistry can obscure or evade. * * * 
 Simply because to reject ballots would have the effect of disfranchising electors is no 
 reason for counting them if they are in violation of law. This result was intended 
 by the law when the electors disregarded its provisions. * * * No court in South 
 Carolina, so far as the committee is aware, has passed upon this law. The commit- 
 tee hold that the statute is mandatory; that the ballots were properly excluded 
 and should not have been counted; that the law-making power should be upheld 
 in its effort to preserve the secrecy of the ballot, thus securing, as far as possible, a 
 pure and honest ballot. 
 
 Miller's ballots being illegal, the committee proposed resolutions 
 confirming Elliott in his seat. 
 
 The minority complained of the action of the committee in delaying 
 the report on this case until within seven days of the expiration of the 
 Congress, and insisted that the Miller ballots were legal and should 
 have been counted. All the rejected ballots in the case were in the 
 possession of the committee, and an actual examination of them showed 
 that the objections to them were not well taken. A large number of 
 them were fully 6 inches in length, as required by law, and the short- 
 age of one-sixteenth of an inch in the remainder was easily accounted 
 for and was immaterial. "De minimis non curat lex." The word 
 "For" before "Congress," on the ballots, would have been understood 
 if it were not expressed; it appeared upon other ballots which were 
 counted by the same canvassing boards, and could not possibly be con- 
 strued as a distinguishing mark. 
 
 The complaint of the color of the ballots was equally untenable. 
 Miller's ballots were printed on an ordinary grade of white paper. 
 Elliott's ballots were printed on a finer grade, of a lighter shade. Bray- 
 ton's ballots were printed on a still finer grade, of still lighter shade. 
 No two grades of white paper are exactly alike, and it is impossible to 
 secure absolute uniformity of appearance except by having all the 
 ballots officially printed in identical form, as is done in those States in 
 which absolute uniformity is contemplated. All three grades of paper 
 
 H. Doc. 510 31 
 
482 DIGEST OF CONTESTED ELECTION CASES. 
 
 used at this election were correctly described, both in a popular and' 
 a technical sense, as "plain white paper." If one of them were to be 
 taken as the standard, and Miller's ballots thrown out because Elliott's 
 were whiter, then Elliott's should be thrown out because Brayton's 
 were whiter still. The minority declared, from actual inspection of 
 the ballots, that it was impossible to recognize either ballots by the 
 difference in shade when separately presented, though, when placed 
 side by side, they could be distinguished at a very short distance. 
 
 From the same inspection of the ballots it appeared that the com- 
 plaint of the manner of printing them was also unfounded. Miller's 
 name was printed in heavier type than Elliott's, but Elliott's was 
 printed in sharper type than Miller's. The name was visible through 
 the back in occasional tickets of both sorts. The charge that Miller's 
 -tickets were folded in a peculiar way, so as to show the name, was dis- 
 proved by the tickets themselves, which were in evidence with the 
 original creases made by the voters in folding them, and were not so 
 folded. 
 
 In conclusion of the whole matter the minority affirm that Thomas E. Miller was 
 clearly and legally elected over William Elliott to represent this district in Congress 
 by a plurality of 3,283 votes, and that the rejection of his ballots by the election offi- 
 cers of the district, whereby the certificate of election was given to Elliott, was 
 without a shadow of excuse either in law or in fact. 
 
 The report was submitted on February 26, 1893, and the Congress 
 expiring by limitation on March 4 the case was not reached for action 
 in the House. 
 
 [Stofer, 165-197.] 
 
FIFTY-THIRD OONGEESS. 483 
 
 FIFTY-THIED CONGRESS, 1893-1895. 
 
 Connnittc.e on ElediovK. 
 
 Mr. O'Ferrall, Virginia. Mr. Woodard, North Carolina. 
 
 Brown, Indiana. Taylor, Tennessee. 
 
 Paynter, Kentucky. Waugh, Indiana. 
 
 LocKwooD, New York. Daniels, New York. 
 
 Lawson, Geoi'gia. McCall, Massachusetts. 
 
 Hayes, Iowa. Thomas, Michigan. 
 
 Patterson, Tennessee. Wheeler, Illinois. 
 
 Mr. Denson, Alabama. 
 (On January 8, 1894, Mr. Jones, of Virginia, was appointed to the 
 committee. On December 6, 1894, Mr. Paynter was excused and 
 Mr. Beckner appointed.) 
 
 Beginning with this Congress, there are no compilations of the 
 cases, and all the references are to the original reports, 
 
 Crt.sv'.s-. 
 
 1) W. W. Whatley m. J. E. Cobb, Alabama. 
 
 2) A. H. A. Williams V8. Thomas Settle, Ncjvth Carolina. 
 
 3) Warren B. English vs. Samuel G. Hilborn, California. 
 '4) P. H. Thrasher vs. B. A. Enloe, Tennessee. 
 
 5) Thomas E. Watson vs. James C. C. Black, Georgia. 
 
 6) H. L. Moore vs. Edward H. Funston, Kansas. 
 
 7) Charles H. Page, Rhode Islamd. 
 
 8) Louis Steward vs. Eobert A. Childs, Illinois. 
 
 9) Charles E. Belknap vs. George F. Richardson, Michigan. 
 
 10) J. T. Goode vs. .1. F. Epes, Viwinia. 
 
 11) ^ohn J. O'Neill vs. Charles F. Joy, Missouri. 
 
 (1) Whatley vs. Cobb. 
 
 Retunm notforiaardcd. Report for coiitestee, who retained the seat. 
 
 Report by Mr. Ta_) lor. 
 
 According to the returns, as canvassed by the secretary of state of 
 Alabama, contestee had a majoritj' of 1,928 votes and received the cer- 
 tificate. Contestant claimed that certain returns had not been for- 
 warded by the precinct inspectors to the county canvassers. Evidence 
 was presented indicating that at these polls contestant received 2,701 
 votes and contestee 1,228, but as this would still leave a majority of 
 515 for the sitting member, the committee considered that the case was 
 concluded by these figures. They reported, however, that the whole 
 of the evidence by which contestant sought to establish his claim was 
 inadmissible, being all secondary or hearsay. Most of the argument 
 of contestant was characterized as based on "suppositions," into which 
 the committee declined to follow him. "The contestant suffered a 
 fair defeat. He should have accepted the result without complaint," 
 
484 DIGEST OF CONTESTED ELECTION OASES. 
 
 The committee was unanimous in the conclusion that contestant had 
 not sustained his claim, and, on March 23, 1894, the House^opted 
 the resolutions presented, without debate or division. 
 [Report 267, second session Fifty -third Congress.] 
 
 (2) "Williams vs. Settle. 
 
 Illegal registration, illegal votes, and irregularities. Majority report 
 for sitting ineinher, minority report for contestant. House refused to 
 C07isider. 
 
 Majority report by Mr. Paynter; minority report by Mr. Woodard. 
 
 The principal point of contest in this case was the legality of the 
 registration of certain voters who were recorded on the registration 
 books under the heading "place of birth" as giving simply the State 
 of birth, or in some cases the name of a county which might not be in 
 North Carolina, without giving the State. The code of North Carolina 
 contained (sec. 2676) the following provision: 
 
 No registration shall be valid unless it specifies as near as may be the age, occupa- 
 tion, place of birth, and place of residence of the elector, as well as the township'or 
 county from whence the elector has removed — in the event of a removal — and the 
 full name by which the voter is known. 
 
 The supreme court of North Carolina, in a recent case [Harris ■?/.5-. 
 Scarborough, 110 N. C. R., p. 232],^ had construed this statute as man- 
 datory, and held that the registry of a certain precinct in contest was 
 fatally defective in stating the elector's place of birth as simply "North 
 Carolina." The county of birth should have been specified. If the 
 failure to give a more accurate description had been due to the fault 
 of the registering officer it would not have disfranchised the voters, 
 but if the officer simply read the headings of the columns to the voters 
 he "certainly did all that the law required of him." He is presumed 
 to have performed this duty, and the voter is presumed to have known 
 the imperative requirements of the law as to the specific answer he 
 should make. His failure to be registered correctly "must be con- 
 sidered due to the carelessness or inexcusable ignorance of such 
 electors." 
 
 This decision had been rendered by a divided court, and the major- 
 ity of the committee plainly inclined to the views of the dissenting 
 judges, but all the committee (as stated in the minority report) agreed 
 to be bound by the decision of the State supreme court, and the major- 
 ity report was confined to showing that, under the state of the evidence 
 in this case, the conclusion did not follow that the returned majority 
 of contestee must be reversed bj'^ rejecting votes illegal on account of 
 this irregularity in registration. The minority (Messrs. Woodard, 
 Patterson, Hayes, Denson, and Jones, all of the majority party of the 
 committee) held that the decision of the supreme court was binding, 
 and that its application required the seating of contestant. There were 
 also many minor questions of irregularity discussed in the case. 
 
 Contestant presented oral testimony and also, in some cases, official 
 certificates to show that in a large number of precincts certain named 
 voters had been imperfectly registered as to place of birth, and that 
 
 1 This decision has since been reversed by the supreme court of North Carolina 
 (see Quinn vs. Lattimore, 120 N. p.). 
 
PIPTY-THIRD CONGRESS. 485 
 
 certain of them were-colored voters. He introduced general testimony 
 as to these precincts that the colored voters voted for contestee, and 
 asked that the votes of those shown to have voted without valid regis- 
 tration be deducted from the vote of contestee. The committee held 
 that the proof was insufficient. In a number of cases it was proved 
 that the registry referred to was a new register, and there was no com 
 petent evidence to show that the new registration had been legally 
 authorized. No poll books were presented to show that any of the 
 voters in question voted, and in four counties there was no transcript 
 of the registration books. A certificate that the books pui'ported to 
 show certain facts could not take the place of a transcript of their con- 
 tents. "If this conclusion is correct, then there is no competent testi- 
 mony in this record as to how any elector was registered or as to 
 whether or not he voted either in the counties of Rockingham, Stokes, 
 Durham, or Caswell. We will, however, proceed to present this case 
 independent of the conclusion which the committee has reached as to 
 these questions. However, the efl'ect of these conclusions would be to 
 permit the contestee to retain his seat." 
 
 The committee entered into a detailed analysis of the vote in each 
 precinct, showing that if the white votes shown to be illegal by the 
 same evidence as that produced against the colored votes were to be 
 deducted pro rata from contestant and from Lindsay, the Populist 
 candidate, the result would be unaffected. In some precincts in 
 which the testimony showed nearly all the voters to have been irregu- 
 larly registered, and there was no evidence how the small remainder 
 voted, the committee suggested the alternative plan of rejecting the 
 entire poll, which would lead to the same result. 
 
 Certain other precincts had been rejected by the county canvassers 
 or were asked to be rejected by the committee on the grounds: 
 
 First. Certain judges or inspectors of election were not sworn. 
 
 Second. Registration books were not kept open thirty days. 
 
 Third. Some of the officers absented themselves from the polling 
 place for a brief time during the election. 
 
 Fourth. Because parties other than the officers handled the ballots. 
 
 Fifth. The officers of election began to count some of the ballots 
 before the polls closed. 
 
 Sixth. An inspector or judge of the election was a candidate. 
 
 The committee discussed the evidence in regard to all these precincts 
 in detail, and found in each case either that the facts charged were not 
 established or that the irregularities were shown not to have affected 
 the honesty of the election or the correctness of the ascertained result. 
 
 Contestee was certified by the board of State canvassers as having 
 received a plurality of 329 votes. On the precinct returns his plurality 
 was 623, but certain of these returns had not been certified to the State 
 board by the county canvassers, for the reasons mentioned. Under 
 any of the theories discussed by the committee this majority could not 
 be overcome, and the committee therefore recommended resolutions 
 declaring contestee elected. 
 
 The minority of the committee quoted the decision of the supi-eme 
 court of North Carolina in the case of Harris vs. Scarborough, and 
 complained that the majorityhad not properly applied it to the evidence 
 in this case. In every precinct in contest, except one, it had been 
 shown that the registering officers did all the law required, and the 
 imperfection of the entry of the birthplaces of the voters on the regis- 
 
486 DIGEST OF CONTESTED ELECTION CASES. 
 
 tration lists must therefore, in the words of the court, be attributed "to 
 the carelessness or inexcusable ignorance of such elector." The objec- 
 tion of the committee to the failure to prove the legality of the new 
 registration was groundless, for all the votes in question were newly- 
 registered votes, entered since the passage of the law under which this 
 election was held. The evidence in regard to the registration lists was 
 in legal form. It was not necessary to have introduced a transcript of 
 the entire book, including names not in question. The minority 
 asserted, further, that there was no proof to sustain the allegation that 
 a large number of white voters voted illegally for contestant. They 
 also excluded from consideration all the testimony taken in Rocking- 
 ham County before a notary who was a minor. The majority had not 
 passed on this question. The minority claimed that the county can- 
 vassing boards, which excluded the returns from certain disputed pre- 
 cincts, were vested by the laws of North Carolina with judicial jjowers, 
 and especially emphasized the correctness of their action in one of the 
 precincts in which one of the judges of election was a candidate for 
 constable. 
 
 Under the findings of the minority 630 illegal votes were found to 
 have been cast for contestee and 48 for contestant. As the difference 
 was greater than the apparent plurality of 402 votes given to contestee 
 by the minority, they reported resolutions declaring contestee not 
 elected and contestant entitled to the seat. 
 
 The case was called up on August 6, 1894, but the author of the 
 minority report having been called to South Carolina by sickness, the 
 case was postponed until the next session. It was again called up on 
 February 28, 1895 (near the close of the last session of the Congress), 
 and, the question of consideration being raised, the House, by a vote 
 of 102 to 144, refused to consider the case. This left contestee in his 
 seat. 
 
 [Report 337, parts 1 and 2, second session Fifty-third Congress.] 
 
 (3) English vs. Hilborn. 
 
 False count. Recount. Majority report for contestant; minority 
 report for sitting member. Contestant seated. 
 
 Majority report by Mr. Brown; minority report by Mr. Waugh. 
 
 Contestee received a plurality of 25 on the face of the returns. One 
 precinct at which he, received a plurality of 8 was not received by the 
 board of supervisors in time to be included in their count. Adding 
 this, contestee's majority was 33. 
 
 The only issue in the case was the vote of Altamont, Alameda 
 County. According to the returns contestant received 15 votes and 
 contestee 37. This was the reverse of the usual result in the precinct, 
 which was a small farming district of fixed population, and had alwavs 
 been Democratic. Contestant called 47 of the voters in this precinct 
 as witnesses and 37 of them testified that they voted for him. Con- 
 testee then had the ballots recounted, with the result that the vote 
 was, contestant 29 and contestee 22. If the testimony of the voters 
 was taken, but the voters not called were presumed to have" voted for 
 contestee, contestant would have a plurality of 3 votes in the district. 
 If the whole poll was rejected and only the votes proved counted, 
 he would have a plurality of 26 in the whole district. If the recount 
 
FIFTY-THIBD CONGRESS. 487 
 
 was accepted, contestee would have a plurality of 4. The committee 
 sustained either of the two former counts; the minority accepted the 
 recount and reported for contestee. The rule that the ballots are the 
 best evidence was explained by the majority as having grown up before 
 the adoption of the Australian ballot system. Under the old system 
 the ballot was selected and deposited by the voter in his own way, and 
 was his written act, not to be overcome even by his own testimony. 
 Under the new system the ballot is only in part the act of the voter 
 and, in the case of an illiterate voter, may be wholly the act of an 
 official not chosen and perhaps not trusted by him. The rule ought, 
 therefore, now to admit the testimony of the voters. In this case the 
 recount was not sufficiently sustained. The ballots recounted had been 
 for some time in a sealed package on the floor of a public room, and 
 might have been tampered with. 
 
 The minority held that the ballots were the best evidence, and referred 
 to the testimony showing that the ballots recounted were the identical 
 ballots in the identical condition that they were when counted and 
 sealed up by the election judges. According to the recount, contestee 
 still had a plurality of 4 votes. 
 
 The case was debated for a short time on April 3 and 4, 1894, under 
 the limitations of a special rule. The resolution declaring contestee 
 not elected was passed by a vote of 170 to 13 (many members not vot- 
 ing) and that declaring contestant elected by 165 to 17. Mr. English 
 was then (on April 4, 1894), sworn in. 
 
 [JJeport No. 614, second session Fifty -third Congress.] 
 
 (4) Theashee vs. Enloe. 
 
 Illegal votes. Irregularities. Both reports for sitting member., who 
 retained the seat. 
 
 Majority report by Mr. Patterson; minority report by Mr. McCall. 
 
 According to the returns, contestee had a majority of 118. A mis- 
 take of 3 votes in his favor was conceded, leaving him a net majority of 
 115. Both sides made charges of illegal votes, imperfect ballots, and 
 other informalities. The majority of the committee subtracted 363 
 invalid votes from the vote of contestee and 358 from the vote of con- 
 testant, leaving contestee still a majority of 110 votes. The minority 
 made fewer changes, and left him a majority of only 25. 
 
 Thirty -six votes were returned as cast for "Benjamin B. Enloe" 
 instead of Benjamin A. Enloe, and 119 were returned for "P. H. 
 Thresher" instead of P. H. Thrasher, but these were all clerical errors. 
 "These clerical errors could not affect the validity of the ballots." 
 
 A number of ballots were thrown out by the election judges on the 
 ground that they were not of the dimensions prescribed by law. The 
 majority sustained this exclusion; the minority counted the votes. 
 The law on the subject was explicit and mandatory. 
 
 It provided, in the first section: 
 
 The ballots to be voted shall be of plain white paper, 7 inches long and 3 inches 
 wide, upon which the office to be filled, with name or names to be voted for, shall 
 be plainly written or printed. 
 
 The second section was: 
 
 That it shall not be lawful to print or place any picture, sign, color, mark, index, 
 or insignia thereon, and any ballot of less or greater dimensions than as provided in 
 the first section of this act, or any ballot upon which said picture, sign, color, mark, 
 
DIGEST OF CONTESTED ELECTION CASES. 
 
 index, or insignia may be placed, if found in the ballot box, shall not be counted by 
 the judges holding said election, but shall be treated as invalid. 
 
 The majority said: 
 
 This statute is, without question, mandatory. No language could be employed 
 that would be more emphatic. There is no room for construction. We must follow 
 the plain mandate of the law or refuse outright to obey it. It is insisted by counsel 
 for contestant that while the statute may be mandatory yet the difference between 
 the dimensions of the ballots in question and the ballote prescribed by law is so slight 
 that it ought not to be recognized in determining their validity. One-eighth or one- 
 sixteenth of an inch difference in width or length, he insists, is too slight to be notice- 
 able. The fact is the difference was material and was readily noticed by the judges. 
 
 The statute does not prescribe how nearly the ballot shall approach the dimensions 
 of the prescribed ballot, but expressly says that "any ballot of less or greater dimen- 
 sions shall not be counted." The extent of the variance is not material; it is the 
 fact of substantial variance the law deals with. It may be conceded that the law did 
 not contemplate a literal compliance with its mandate, but any difference which 
 could be easily observed on comparison with the prescribed ballot would clearly fall 
 within its meaning. 
 
 The minority counted the votes, saying: 
 
 The evidence shows that the ballots in question were short of the required dimen- 
 sions by froni one-sixteenth to one-eighth of an inch, and upon that ground they 
 were rejected by the judges of election. The statute is mandatory, but the under- 
 signed are strongly of the opinion that the variance from the prescribed dimensions 
 must be of a substantial character. 
 
 The object of this provision doubtless was to preserve the secrecy of the ballot 
 and to prevent a ballot being cast of which the size would be a distinguishing mark. 
 But if it is to be held that the ballot must be of precisely the dimensions prescribed 
 by the statute, then it would be a practical impossibility to secure a legal ballot with 
 the ordinary appliances used in printing. Fine mathematical instruments would 
 always show some infinitesmal deviation from the exact dimensions prescribed by law. 
 
 We can not believe that the statute was ever intended to have such a construction. 
 A deviation of from one-sixteenth to one-eighth of an inch would not be noticeable 
 and would not serve to mark the ballot. The report of the majority disregards these 
 ballots;. We believe that they were substantially in compliance with the statute, 
 that they were cast by legal voters, and that they clearly expressed the intention of 
 the voter to vote for the contestant. They should therefore be counted for him. 
 
 The majority also deducted from the count of both sides ballots 
 having at the head the words: "For President, Benjamin Harrison," 
 and "For Vice-President, Whitelaw Reid," on the ground that these 
 words came within the prohibition of a "picture, sign, color, mark, 
 index, or insignia " in the law above quoted. The minority counted 
 these votes. 
 
 The constitution of Tennessee provided: 
 
 There shall be no qualifications attached to the right of suffrage, except that each 
 voter shall give to the judge of election, where he oners to vote, satisfactory evidence 
 that he has paid his poll taxes assessed against him for such preceding period as the 
 legislature shall prescribe and at such time as may be prescribed by law, without which 
 his vote can not be received. * * * The general assembly" shall have power to 
 enact.laws requiring voters to vote in the election precincts in which they may reside, 
 and laws to secure the freedom of elections and the purity of the ballot box. 
 
 The law in force at the time of this election provided that the 
 "satisfactory evidence" of the payment of the poll tax should consist 
 of the tax receipt, a certified copy thereof, or a specified affidavit. 
 Any person voting oi' any judge of election knowingly permitting 
 any person to vote without complying with the act was declared guilty 
 of a misdemeanor. The committee said : 
 
 The constitution is mandatory, and the statute is especially so. There is no room 
 for doubt. Unless the evidence required by the constitution and specially prescribed 
 by the statute is furnished to the judges the elector liable to a poll tax has no right 
 to vote. It is illegal to receive his vote, and illegal to count it if it is received. 
 
PirTY-THIED CONGRESS. 489 
 
 Most of the electors in question had, in fact, paid the tax, and in one 
 case the constable who collected it was an officer of the election and 
 had his collection book with him, but the evidence required by law was 
 not presented, and the committee held that no other could cure the 
 defect. 
 
 While it is conceded that the judges in this instance were honest, and to enforce 
 the law will work a hardship on the contestee and deprive electors who, in point of 
 fact, paid their poll taxes of their ballots, yet it is better to do this than to subvert the 
 safeguards which the State has thrown around the ballot box to prevent fraud and 
 the evasion of the law. 
 
 The minority did not throw out these ballots, and discussed the facts 
 and the justice of the case, but did not analyze the law. "On the 
 whole, we incline to the opinion that these ballots should be counted." 
 
 Contestant attacked the vote of the city of Jackson on the ground 
 that it was held under "Dortch" Australian ballot law, to which its 
 population did not entitle it, and that the law itself was unconstitu- 
 tional, as imposing an educational qualification forbidden by the con- 
 stitution of the State. The law provided for printing the names in 
 alphabetical order, and did not permit the voter assistance except in 
 case of physical infirmity. The objection as to population was answered 
 by the census, and the objection to the constitutionality of the law by 
 the fact that the supreme court of Tennessee had, in the case of Cook 
 ■vs. the State, declared it constitutional. The minority of the committee 
 did not agree with the State court, but followed its decision. They 
 said: 
 
 The constitution of Tennessee, in effect, prohibits the enactment of any statute 
 requiring that a man shall be able to read and write in order to vote. It is clear 
 that the Dortch law imposes such a requirement, and it would appear to be clearly 
 repugnant to the principles of the constitution. But the supreme court of Tennessee 
 has decided this law to be constitutional, and we feel constrained to follow that 
 decision in the present case, in accordance with the general rule. We are clear in 
 our opinion, however, that this law disfranchises men who possess all the constitu- 
 tional requirements of voters. 
 
 The committee also excluded the vote of Savannah, Hardin County, 
 on the ground that no registration of voters had been made, in viola- 
 tion of the law requiring registration in towns of 2,500 inhabitants and 
 upward. "It is evident that the failure to open registration books 
 under this law will def eft an election. " The minority did not defi- 
 nitely state its ruling on this vote, but called attention to the provi- 
 sion of the law making the original certificate the sole evidence of 
 registration. By buying up these original certificates it was possible 
 by bribery to disfranchise all voters who would sell them, and the 
 minority was informed that this was a common practice. 
 
 The committee were unanimous in the conclusion that contestee was 
 elected, and the House, on July 10, 1894, passed the resolutions recom- 
 mended, without debate or division. So contestee retained the seat. 
 
 [Report 842, second session Fifty-third Congress.] 
 
 (5) Watson vs. Black. 
 
 Irregularities, intimidation, hribery. Report fm' sitting 'membe7\ 
 who retained the seat. 
 
 Report by Mr. Lawson. 
 
 Contestant asked that the votes of a number of precincts be thrown 
 out for irregularities, briber j% and intimidation. The committee 
 
490 DIGEST OF CONTESTED ELECTION OASES. 
 
 called attention to the fact that if all his claims were allowed the evi- 
 dence did not show that enough votes were affected to change the 
 result, but entered into a discussion of each of the claims, finding the 
 evidence generally insufficient and the legal objections untenable. 
 
 In the city of Augusta there were three ballot boxes at each pre- 
 cinct, but the evidence showed that this number was necessary to poll 
 the large vote, as the law did not permit the number of precincts to 
 be increased. The law was, moreover, directory, containing the 
 provision: 
 
 Paragraph 1334 (1362) (1281). Eleclion not void by reason of formal defects. — No 
 election shall be defeated for noncompliance with the requirements of the laws, if 
 held at the proper time and place by persons quaUfied to hold them, if it is not shown 
 that by that noncompliance the result is different from what ft would have been had 
 there been proper compliance. 
 
 There was also complaint that the boxes were so placed that the 
 United States supervisors could not properly supervise them all, but 
 the evidence was not clear, and it was evident that no harm was 
 intended or done and that the supervisors did not take proper steps to 
 have the difficulty remedied, if any existed. Some ballots were also 
 handled by unauthorized -persons, and some officers of election were 
 absent for a few moments at a time, but no harm was done ' ' and the 
 affair appears, on the whole, to be too trivial to deserve rebuke. " 
 
 The principal charge was indirect intimidation, bribery, and whole- 
 sale repeating. There was some bribery at two precincts, but there 
 was no evidence that more than $11 or $12 was expended, and the 
 number of votes affected could not be more than 20, and was probably 
 much less. There was some free whisky at some of the polls, but less 
 than usual. There was also some conflicting evidence, part of which 
 indicated that sonic mill hands may have voted for contestee for fear 
 of discharge, but the evidence was contradicted, and \evj few votes 
 were even claimed in e\'idence to have been affected. The committee 
 said, moreover, "We can conceive how an ardent and acti\e politician 
 among employees in a factory could become obnoxious and merit his 
 discharge apart from his support of any candidate." There was also 
 a considerable amount of vague and unsatisfactory evidence on the 
 subject of repeating, but nothing sufficient to justify any definite con- 
 clusion. No protest was made at the time and there were no arrests, 
 possibly because, if there was repeating, both parties expected to 
 profit by it. 
 
 Some votes offered at one precinct were not accepted, but the reason 
 for the rejection did not appear and was presumed to have been good. 
 Certain returns had also been rejected as not signed, but some of them 
 were signed in part and "were enough to show that the election was 
 legally held and for whom the votes were cast. The committee counted 
 these returns as coming within section 1334 of the code, above quoted. 
 
 Most of the contentions of contestant not being sustained, and all of 
 them if sustained being insufficient to overcome the returned majority 
 of contestee, the committee reported resolutions confirming contestee 
 in his seat. 
 
 The case was called up on June 29, 1894 (by Mr. Pence, not a mem- 
 ber of the committee). Mr. Brown, of the committee, raised the 
 question of consideration, and the House voted, by 220 to 0, to con- 
 sider the case. Mr. Pence then moved that the case be postponed for 
 two days and the contestant be then gi\-en leave to speak. The motion 
 
FIFTY-THIRD OOWGEESS. 491 
 
 was lost, 77 to 126. Mr. Pence then "filibustered," and the Com- 
 mittee on Riiles brought in a " no intervening motion " rule, which 
 was passed by a vote of 132 to 5i (11 being counted present to make 
 a quorum). The resolutions of the Committee on Elections were then 
 passed by a vote (on division) of 106 to 10, and contestee was accord- 
 ingly confirmed in his seat. 
 
 [Report 1147, second session Fifty-third Congress.] 
 
 (6.) MOOHE vs. FUNSTON. 
 
 Illegal votes/ fraudAjlent registration. Majority report for contest- 
 ant; minority report for contestee. Contestant seated. 
 
 Majority i-eport by Mr. Jones; minority reports by Mr. McCall and 
 Mr. Paynter. 
 
 According to the returns contestee had a plurality of 81 votes. 
 Contestant sought to overcome this majority by showing illegal votes, 
 fraudulent registration, and irregularities, all in the interest of con- 
 testee, and covering a much larger number of votes than his returned 
 plurality. The majority of the committee found most of the charges 
 sustained, the minority found most of them not sustained, and on indi- 
 vidual questions of illegal votes, held that the majority of the sitting 
 member was increased. Mr. Paynter, who signed neither report, pre- 
 sented a brief separate report simply announcing that he agreed with 
 the conclusions of the minority. 
 
 The answer to the notice of contest was served on contestant either 
 one or two daj's late. There were also objections to some specifica- 
 tions in the notice of contest, and to some testimony as bearing on 
 points not covered by the notice. On this whole question the com- 
 mittee said: 
 
 If, then, we should closely apply to the notice of contest the rule of pleading upon 
 which contestee insists, and should apply to the answer the requirement of the law, 
 we should find contestee without an anwer, and would have but to ascertain whether, 
 upon the grounds of contest undoubtedly specified in the notice, contestant has made 
 good his contention that he, and not contestee, was really elected a Representative 
 in Congress from the Second district of Kansas. If we should take this view of the 
 matter our labors would be greatly lessened, a considerable portion of the huge rec- 
 ord in the case would be eliminated, and the finding would necessarily be in favor 
 of contestant. We believe, however, that the real question to be determined is not 
 so much whether this or that bit of evidence offered by contestant certainly relates 
 to something clearly specified in his notice of contest as a ground upon which he 
 relies, nor yet whether contestee' s answer and countercharge were made in due time, 
 but rather which of the two-claimants, according to the record, was really elected and 
 is really entitled to a seat in the House of Representatives. 
 
 In Wyandotte County (Kansas City, Kans.), contestee had a plurality 
 of 179 votes. The committee, without giving figures, held that " the 
 true and legal plurality of contestee in said county over contestant is 
 very small, if, in fact, anything." In this county there were two 
 Republican and no Democratic candidates for the State senate, and 
 much bitter feeling was aroused. There was general circumstantial 
 evidence which the committee held tended to show a systematic con- 
 spiracy on the part of Republican friends of one of these candidates to 
 stuff the registry with the names of fictitious and fraudulent voters. 
 Canvassers, before and after election, had been sent through the dis- 
 trict to verify the registry lists, and had returned long lists of persons 
 who could not be found. Subpoenas had been issued in this case for 
 those in contest in it, and had all been returned as ' ' not found. " There 
 
492 DIGEST OF CONTESTED ELECTION CASES. 
 
 was also evidence that a number of foreigners who had been brought 
 in by Republican workers had received their "first papers" (entitling 
 them, in Kansas, to vote) without sufficient precautions to determine 
 whether they understood what they were doing, and that foreigners of 
 the same class were brought by .Republican workers to the polls on 
 election day. In one precinct there was evidence that a negro police- 
 man at the polls on election day so conducted himself as to frighten 
 some voters of his race, but the committee did not reject this poll. In 
 another precinct there had been irregularities in the count, and the 
 county clerk, when called to produce the ballots, testified that he could 
 not find them. Subsequently he produced them, saying that one of his 
 friends had found them on his gate post. The seal was broken and the 
 ballots had evidently been tampered with. The committee said: 
 
 There can be no doubt but that the returns from this precinct should be rejected 
 and the whole vote thrown out, if the ends of justice would be promoted by so doing. 
 But the returns, as they are, give contestant 25 more votes than contestee in the pre- 
 cinct; and it is evident that the real difference was much greater, in contestant's 
 favor. Therefore it is the duty of the committee to ascertain, as nearly as may be, 
 the true vote, that the right may prevail, at least approximately, as to the vote of 
 this precinct. 
 
 There is nothing in the report, however, to indicate how many votes 
 the committee counted for either candidate, or on what basis they 
 estimated them. 
 
 In Allen County, which gave contestee a majority of 93 votes, the 
 county commissioners did not correctly comply with the law in regard 
 to canvassing the precinct returns and signing the county abstract. 
 The law required the board to determine the result of their canvass of 
 the votes, "and such determination shall be reduced to writing, signed 
 by said commissioners and attested by the clerk, and shall be annexed 
 to the abstract of the votes given for such officers." In this case the 
 abstract of votes was merely certified to by the county clerk, who 
 signed the name of the chairman of the board to it, under general 
 instructions, and also signed his own name. The committee rejected 
 the vote of this county on the ground that the returns were unsigned, 
 and there was no other evidence of the vote presented. 
 
 A number of votes were attacked on' the ground that they were cast 
 by former Confederate soldiers, and that there was no affirmative proof 
 of the passage of anj"^ law by the legislature of Kansas removing their 
 disabilities as required by the State constitution. The committee 
 expressed the opinion that "the constitution of Kansas seems to settle 
 it as to persons shown to have served voluntarily in the Confederate 
 army, and whose disabilities are not shown to have been removed by 
 the Kansas legislature," but did not further determine the question, as 
 it would not alter the result. 
 
 The minority held that most cf the conclusions of the majority- were 
 not justified bj' the weight of evidence. All of the evidence Jn regard 
 to bribing and repeating was hearsa}^, and most of it was by profes- 
 sional gamblers, of contestant's own party. The question of fraudu- 
 lent registration was not covered bj^ the notice of contest; the testimony 
 of the principal witness was not signed, as he had become a fugitive 
 from justice before it was written out; the rest of it was hearsay, and 
 of a negative character. There was no competent evidence that any 
 of the voters attacked voted, or for whom they voted, and if there 
 was any fraud in this district it was committed in the interest of one or 
 the other of the candidates for the State senate. As all the Democrats 
 
FIFTY-THIKD CONGRESS. 493 
 
 voted for Republican candidates for this office, no inferences could be 
 drawn as to the general partisan bearing of the fraud, even if it were 
 committed. 
 
 In the precinct in which the ballots disappeared and afterwards 
 turned up mysteriously on a gatepost, the fraud in the "gatepost 
 ballots" was obvious and conceded; but this was nothing against the 
 original count, and as contestee relied on that count, it was incon- 
 ceivable that the subsequent falsification of the ballots could have 
 been committed in his interest. 
 
 On the vote of Allen county the minority said: 
 
 It is no ground for the disfranchisement of the voters of a whole county that the 
 returning officers, on a day subsequent to the election, are guilty of an informality 
 in attesting the returns, when the result is not in any way affected by such infor- 
 mality. 
 
 The case was very fully debated, and, on August 1, 1894, the sub- 
 stitute resolutions presented by the minority were rejected by votes 
 of 90 to 127 and 31 to 129. On the next day the resolutions presented 
 by the majority were passed by a vote of 147 to 86, and (on August 
 2, 1894) Mr. Moore was sworn in. 
 
 [Report 1164, parts 1 and 2, second session Fifty-third Congress.] 
 
 (7) Page. 
 
 Term and pay of member. Report for claimant. No action hy 
 House. 
 
 Report by Mr. Hayes. 
 
 This is not properly a contested election case, but is included on 
 account of the questiop of law discussed. Mr. Page had been con- 
 testant in the case of Page vs. Pirce in the Forty-ninth Congress. 
 (See p. 419, wiite.) The House had declared the seat vacant, under the 
 Rhode Island law requiring the successful candidate to have a majority 
 over all at the first election. A second election was held and Mr. Page 
 was elected, serving the remainder of the term. He drew pay and 
 allowances only for the portion of the term actually served, and this 
 report was on a resolution to allow him his claim to pay him the 
 remainder of the pay for the full term. The committee reported the 
 resolution favorably, on the ground that, Mr. Pirce having been 
 adjudged by the House not elected, the seat from the Second Con- 
 gressional district of Rhode Island had never been filled until filled by 
 Mr. Page by virtue of the second election. He was the only member 
 elected from that district to the Forty-ninth Congress, and was, hence, 
 entitled to pay for the full term. 
 
 There was no action by the House. 
 
 [Report 1645, third session Fifty-third Congress.] 
 
 (8) Steward vs. Childs. 
 
 Irregularities {under Australian hallot law). Report for contestee. 
 Wo action hy Mouse. 
 
 Report by Mr. Brown. 
 
 This case grew out of questions arising under the Illinois (Australian) 
 ballot law of 1891, in use for the first time at this election. The plu- 
 rality of contestee on the returns was 17, but the committee found 
 
494 DIGEST OF COI^TESTED ELECTION CASES. 
 
 that his true plurality was 252i The courts of Illinois had not con- 
 strued the new law, but the committee said: "It is deemed the dutj' of 
 the committee to recommend to the House such construction of these 
 laws as will give force and effect to the clear intention of the legislature 
 which enacted them." The conclusions of the committee were: 
 
 The committee find it to be the law that ballots on which the voter undertook to 
 express his choice by marks other than the cross placed in the circle or square, as 
 provided by the statute, are not legal and should not be counted; that ballots voted 
 by electors who were assisted in marking their ballots without having first made the 
 affidavit of disability, as provided by said statute, are not legal and should not be 
 counted; that the initials of that one of the judges of election who delivered the bal- 
 lots to the voters are a part of the "official indorsement" required by the statute, and 
 ballots not bearing such initials are not legal and should not be counted. 
 
 The case was reported on February 1, 1895, and notice was given that 
 it would be called up on February 7, but there is no record of any 
 further action in the House. There was no minority report, but in the 
 next Congress Mr. Daniels in debate (see Record, first session Fifty- 
 fourth Congress, p. 5134) called attention to the fact that the members 
 of the minority had never signified their assent to the report (which 
 was presented, near the close of the Fifty-third Congress), and that on 
 the question of ' ' assisted voters " the minority report in the case of 
 O'Neill vs. Joy showed that they did not agree. 
 
 [Report 1741, third session Fifty -third Congress.] 
 
 (9) Belknap m. Richardson. 
 
 (-?) Prima facie case. Confiicting certificates. Seat g'lmen to Rich- 
 ardson., and Belknap cmthxn'ized to contest. 
 
 Report by Mr. Paynter. 
 
 This case came before the House on the opening day of the session 
 (August 7, 1893) by the statement of the Clerk that he had received, 
 on December 22, 1892, a certificate of election showing the election of 
 Hon. George F. Richardson from the Fifth district of Michigan, and 
 had then placed Richardson's name on the roll. Exactly similar certifi- 
 cates were filed by the other members-elect from Michigan at various 
 dates up to April 3, 1893. On February 20, 1893, a certificate of elec- 
 tion issued to Charles E. Belknap had been received by the Clerk. 
 The certificate was in due form, but was signed by other persons than 
 those signing the certificate of Richardson and the remaining certifi- 
 cates from Michigan. (The State officers had in the meantime been 
 changed.) The Clerk refused to strike Richardson's name from the 
 roll "having already exercised the authority given to him by law." 
 He therefore submitted the matter to the House. 
 
 When Mr. Richardson's name was called, on the organization of the 
 House, he was requested, on objection, to stand aside. On the com- 
 pletion of the roll a resolution was offered providing that Mr. Richard- 
 son should be sworn in, for which a substitute was offered providing 
 for the swearing in of Mr. Belknap on his prima facie case. The 
 matter went over until the next day, when, after extended debate, 
 the House first rejected, by a vote of 128 to 193, a motion to refer the 
 prima facie case to a special committee of five to report in ten days, 
 and then rejected the motion to seat Belknap, by a vote of 114 to 199. 
 
FIFTY-THIRD CONGRESS. 495 
 
 The resolution to seat Richardson was then passed without division, 
 and Mr. Eichardson was sworn in. 
 
 On August 15 a resolution was introduced which on August 29 (the 
 committee having in the meantime been appointed) was referred to 
 the Committee on Elections, granting Mr. Belknap the right to con- 
 test the seat under the provisions of the general law, the time to begin 
 with the date of the swearing in of Mr. Richardson. The committee 
 reported the resolution favorably (Report 3, first session Fifty-third Con- 
 gress) with an amendment to make the time of contest begin with the 
 date of the passage of the resolution, Mr. Paynter saying, in presenting 
 the report, that he had examined all the precedents, and the privilege of 
 contesting had always been given the unsuccessful claimant on a prima 
 facie case. The House passed the resolution as recommended, without 
 division, and the contest on the merits (see below) proceeded in the 
 usual manner. 
 
 There is no report of any committee discussing the issues of the 
 prima facie case, but from the debate in the House it appears that 
 Richardson had received a plurality of 10 votes on the face of the 
 returns as certified by the county canvassers, while Belknap had 
 received a, plurality of 19 votes on the returns as certified by the pre- 
 cinct inspectors. The difference was in the returns in the county of 
 Ionia, where the county canvassers had thrown out 54 votes for Bel- 
 knap and 25 for Richardson. The supreme court of Michigan issued a 
 writ of mandamus to the Ionia County board, commanding them to 
 reconvene and canvass the returns as originally certified to them. 
 The members of the board which conducted the original canvass had 
 gone out of office, but their successors obeyed the writ, and the suc- 
 cessors of the State officers who had issued the original certificate to 
 Richardson issued a like certificate to Belknap. 
 
 The difference between the two original counts in Ionia County seems 
 to have been due to a recount of the ballots of that county instituted 
 by the first board of canvassei's under a State law providing for such 
 recounts. The supreme court decided that this law did not apply to 
 Congressional elections, and therefore issued its mandate that the count 
 should be made on the original precinct returns. 
 
 Questions of law were discussed on both sides during the debate, 
 but there is nothing to indicate that the action of the House was 
 referred to any of them with sufficient clearness to constitute a defi- 
 nite precedent. 
 
 [Report 3, first session Fifty-third Congress.] 
 
 (^) Case on merits. Soldiers'' Hovie votes; marked iallots. Major- 
 ity report for contestee; dissenting report for contestant. No action Iry 
 the Hotise. 
 
 Majority report by Mr. Lockwood; dissenting report by Mr. Thomas. 
 
 On the case on the merits the committee found that contestee was 
 elected by a plurality of 150, after eliminating the illegal votes. Con- 
 testant had a plurality of 18 on the face of the precinct returns, but 
 the committee found that the votes (152 for contestant and 41 for con- 
 testee) cast by inmates of the Soldiers' Home at Grand Rapids were 
 illegal for nonresidence, and that a number of ballots cast under the 
 new Australian ballot law were void, as containing distinguishing 
 marks prohibited by the statute. The supreme court of Michigan had 
 
496 DIGEST OF CONTESTED ELECTION CASES. 
 
 passed on both of these questions, and the committee followed the rul- 
 ings of the court on all the points of law. There was no dispute as to 
 the facts. 
 
 Ml'. Thomas dissented and filed a separate report, dealing entirely 
 with the question of the Soldiers' Home votes. The decision of the 
 supreme court referred to, he said, had been rendered since the elec- 
 tion in question, and if it was to be construed as retroactive, the 
 subsequent action of the people of Michigan in amending the State 
 constitution so as to permit the inmates of the Soldiers' Home to vote 
 at the precinct in which the institution was located should also be con- 
 strued as retroactive and as reversing the decision of the majority of 
 the court and indorsing that of the dissenting judges. The Soldiers' 
 Home is not an eleemosynary institution, but an evidence of the grati- 
 tude of the State to the defenders of civil liberty. 
 
 These reports were filed on February 27 and 28, 1895, within a few 
 days of the close of the Fifty-third Congress, and there was no action 
 by the House. 
 
 [Keport 1946, parts 1 and 2, third session Fifty-third Congress.] 
 
 (10) GooDE vs. Epes. 
 
 Heturiis rejected l>y county canvassers 'fm^ irregularities. Majwity 
 report fm^ sitting member ; minority report for contestant. ]S^o action 
 hy the House. 
 
 Majority report by Mr. Lawson; minority report by Mr. Daniels. 
 
 According to the precinct returns, contestant received a majority of 
 641 votes, but the county commissioners in seven counties threw out 
 the returns from twenty-one precincts, in which contestant received 
 an aggregate plurality of 1,609 votes. Contestee had a majority of 
 868 on the remaining returns, and received the certificate. Most 
 of the returns appear to have been thrown out because the ballots or 
 poll books were not properly sealed, or the returns were irregular, 
 ambiguous, or not delivered by the proper officials. The committee 
 went over the evidence in detail, and complained that contestant had 
 not, in most instances, produced the best evidence available. The 
 very point at issue was the reason why the county canvassers rejected 
 each return, and in only two of the seven counties were any of these 
 canvassing ofiicers themselves called as witnesses. The committee, 
 however, excluded none of the testimony, and restored to contestant 
 his plurality in those precincts in which it was shown that the vote had 
 been rejected for trivial irregularities. In some cases it appeared that 
 the reason for I'ejection was sufiicient, as in one precinct where the 
 election was held at the wrong place. In a considerable number of 
 other cases the evidence was not sufiicient to show clearly on what 
 grounds the county canvassers rejected the returns, or whether their 
 action was justified. In these cases their action was permitted to stand 
 on the presumption of its correctness. The net result was the reduc- 
 tion of the majority of contestee from 868 to 215, but as the evidence 
 as presented was not sufiicient to overcome the remainder of his 
 majority, the committee recommended resolutions declaring him 
 elected. 
 
FIFTY-THIRD CONGRESS. 497 
 
 The minority entered into a somewhat more detailed discussion of 
 the evidence in regard to a number of precincts in which the majority 
 found the evidence insufficient, and concluded in most of them that 
 the reasons for the rejection of the returns could be determined from 
 the evidence, and that these reasons were insu^cient. They also 
 called attention to the significant character of the general situation, 
 the rejection of nearly one-third of the precinct returns of the district, 
 all but one (which gave 4 plurality for contestee) showing large majori- 
 ties for contestant, by boards of canvassers politically opposed to him, 
 for trivial and technical irregularities. They found contestant entitled 
 to the seat by at least 442 plurality. 
 
 These reports were presented on February 28, 1895, almost the last 
 day of the last session of the Congress, and there was no action by the 
 House. 
 
 [Report 1952, parts 1 and 2, third session Fifty-third Congress.] 
 
 (11) O'Neill vs. Jot. 
 
 Ballots not correctly marked or numbered. Majority report for con- 
 testant; minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Patterson; minority report by Mr. Daniels. 
 
 This case turned on the question of counting certain ballots on which 
 one or both the judges of election had failed to place their initials, as 
 required by the new ' ' Australian " ballot law of Missouri. There were 
 charges of illegal registration, duplicate ballots, and other irregulari- 
 ties, but the result of a decision upon them would not affect the result, 
 and they were not decided. A number of ballots were thrown out 
 because not properly numbered, but as these were nearly equal in 
 number on both sides, they, too, would not affect the result. 
 
 Sitting member was returned as elected, by a majority of 67 votes. 
 The committee deducted 607 votes from the poll of contestee and 330 
 from that of contestant on account of irregularities in the placing of 
 initials or numbers on the ballots, leaving a majority of 210 votes for 
 contestant. 
 
 A recount of the ballots of nearl}' all the precincts in the district had 
 been made a part of the proceedings of taking testimony in the case, 
 but the result of that recount does not seem to have determined the 
 conclusions of either the majority or the minority of the committee, or 
 of the House. 
 
 According to the majority of the committee, the statute of Missouri 
 providing for the numbering and initialing of the ballots was manda- 
 tory, and all ballots not correctly numbered or initialed were thrown 
 out. According to the minority, the statute was directory, and the 
 obligation to number and initial the ballots, and not to deposit them 
 in the box unless so marked, was on the election officers, not on the 
 voters. 
 
 The legal issue turned on the question how much of the former 
 election law of Missouri had been repealed by implication by the 
 enactment of the new Australian ballot law. That law was made, by 
 its enacting clause, a part of chapter 60 of the revised statutes of 
 the State. It repealed explicitly certain sections of the revised stat- 
 utes, and generally all laws and parts of laws inconsistent with itself, 
 
 H. Doc. 510 32 
 
498 DIGEST OB" CONTESTED BLECTIOM CASES. 
 
 The only prohibitory clause against the ballots contained in the new 
 enactment was (section 4785): 
 
 No judge of election shall deposit any ballot upon which the names or initials of 
 the judges as hereinbefore provided does not appear. 
 
 Section 1005 of the revised statutes, which was not among those 
 specifically repealed by the new law, contained the provision: 
 No ballot not numbered as herein provided shall be counted. 
 
 And section 4671, chapter 60, which was also not specifically repealec , 
 contained the provision: 
 
 Any ballot not conforming to the provisions of this chapter shall be considered 
 fraudulent ^nd void. 
 
 If these provisions were not repealed by implication, but were to 
 be applied to the requirements of the new law, they of course made 
 that law mandatory. 
 
 The majority of the committee held that compliance with these pro- 
 visions was mandatory, and that the requirement was a proper obliga- 
 tion on the voter to prevent fraud. 
 
 It is plain that the imposition of fines on officers of election who ^iolate the law 
 by designedly or carelessly omitting its formalities would not make a system such 
 as this effective. The officers elected through a violation of the law would often 
 be able to screen their confederates from punishment. Where the voters and the 
 oflScers of the election are all interested in understanding and conforming to the law 
 the result will be different. The system can only be made effective by peremptorily 
 declaring that the legality of the ballot shall depend on the observance of the law in 
 vital particulars. 
 
 Now tfiese provisions of the law of Missouri are plainly and emphatically manda- 
 tory. This is too clear for discussion, and we refrain from citing authorities or 
 quoting decisions in support of a proposition so free from doubt. It may be said that 
 to enforce these statutes according to their plain intent and purpose will work injus- 
 tice to the voter, and that he ought not to be held responsible for the failure of the 
 distributing judges to write their signatures or initials on the ballot, or the failure of 
 the receiving judges to number it. But it must be borne in mind that no man has 
 the natural or inherent right to vote. The voter is an agency of the State, clothed 
 by the State with the elective franchise, and the same power which prescribes who 
 shall have the franchise can also prescribe the manner of its exercise, and throw such 
 safeguards around the ballot as will protect it from fraud and dishonesty. Again, 
 the voter is presumed to know something of the law which secures to him the elective 
 franchise and prescribes the conditions on which it is to be exercised. * * * But, 
 aside from all this, we have nothing to do with the severity or the hardships of the 
 law. It is plainly mandatory, and precedent and sound public policy alike demand 
 that it should be enforced and obeyed. 
 
 The minority held that the new enactment of the Australian ballot 
 law in Missouri, establishing an entirely new system of election machin- 
 ery, was intended to supersede the old law, and that it repealed by 
 implication the provisions which made the old law mandatory on the 
 voter. Under the old law the voter himself furnished the ballot, and 
 it was obligatory on him to furnish a ballot in accordance with the law 
 or lose his vote. Under the new law the State furnished the ballots, 
 which were in a form not permitted by the old law. No ballots but 
 those printed by the State were permitted to be counted, but the pro- 
 hibition against depositing these ballots if improperly marked was upon 
 the judges, not on the voters. 
 
 And when one system of law is enacted as a substitute for a preceding law the rule 
 of construction is that the preceding law is repealed, although there may be no express 
 declaration of intention contained in the later act. * * * The prohibition, it will 
 
FIFTY-THIRD CONGRESS. 499 
 
 be seen from the language of the section, is directed to the judges themselves, and 
 not to the voter. * * * Caseshavefrequently arisen where the validity or legality 
 of the ballot has been brought in controversy, but no case has been discovered sanc- 
 tioning the conclusion that the voter shall be deprived of his vote by the omission of 
 the election officers to discharge a duty imposed upon them by law. It is only when 
 a statute has declared the ballot to bevoid or forbade it to be counted that the courts 
 have felt obliged to sanction its exclusion. * * * 
 
 It is, in the judgment of the minority, an unwarranted construction to go back to 
 the preceding law for the purpose of discovering provisions applicable alone to the 
 superseded system for the forfeiture of the votes of the citizens of this Congressional 
 district. 
 
 This case was the occasion of a long contest, but only a brief debate 
 in the House. On March 28, 1894, the substitute resolutions pre- 
 sented by the minority were defeated by a vote of 100 to 147. After 
 many intervening motions the resolutions presented by the committee 
 were passed on April 3, by votes of 156 to 24 and 155 to 28, and on 
 April 3, 1894, Mr. O'Neill was sworn in. 
 
 [Report 268, second session Fifty-third Congress.] 
 
500 DIGEST OF CONTESTED ELECTION CASES. 
 
 FIFTY-FOURTH CONGRESS, 1895-1897. 
 
 Under the revision of the rules adopted at the opening of this Con- 
 gress the usual provision for the appointment of the standing Commit- 
 tee on Elections was amended (on account of the unprecedented large 
 number of election contests) to read as follows: 
 
 Rule X. 
 
 1. Unless otherwise specially ordered by the House, the Speaker shall appoint at 
 the commencement of each Congress the following standing committees, namely: 
 
 On Elections three committees, to consist of nine members each, to be called num- 
 ber one (1), two (2), and three (3), respectively. 
 
 This rule was not altered by the House in the Fifty -fifth or Fifty- 
 sixth Congresses, though the number of election cases was much 
 smaller. 
 
 Committee on Elections No. 1. 
 
 Mr. Daniels, New York. Mr. Linnet, North Carolina. 
 
 RoYSE, Indiana. Dinsmoke, Arkansas. 
 
 Cooke, Illinois. Bartlett, Georgia. 
 
 Leonard, Pennsylvania. Turner, Virginia. 
 
 Mr. Moody, Massachusetts. 
 
 Committee on Elections No. 2. 
 
 Mr. Johnson, Indiana. Mr. Long, Kansas. 
 
 Strode, Nebraska. Harrison, Alabama. 
 
 Prince. Maguire, California. 
 
 Tayler, Ohio. Kyle, Mississippi. 
 
 Mr. Miller, West Virgma. 
 
 Committee on Elections No. 3. 
 
 Mr. McCall, Massachusetts. Mr. Codding, Pennsylvania. 
 
 Thomas, Michigan. Bell, Texas. 
 
 Jenkins, Wisconsin. De Armond, Missouri. 
 
 Walker, Virginia. Jones, Virginia. 
 
 Mr. OvERSTREET, Indiana. 
 
 Cases. 
 Coniiiiittee No. 1. 
 
 1) Hugh R. Belknap vs. Lawrence E. McGann, TZZmiom. 
 
 2) James J. McDonald vs. William A. Jones, Virginia. 
 (3) William F. Aldrich vs. Gaston A. Robbins, Alabama. 
 (4:) Albert T. Goodwyn vs. James E. Cobb, Alabama. 
 
FIFTY-POUETH CONGRESS. 501 
 
 (5) W. C. Robinson vs. George P. Harrison, Alabama. 
 
 (6) John I. Rinaker vs. Finis E. Downing, Illinois. 
 
 (7) Truman H. Aldrich vs. Oscar W. Underwood, Alabama. 
 
 (8) William H. Felton vs. John W. Maddox, Georgia. 
 
 (9) George Denny, jr., vs. W. C. Owens, Kentuclcy. 
 
 (10) N. T. Hopkins vs. Joseph M. Kendall, Kentucky. 
 
 (11) Thomas E. Watson vs. James C. C. Black, Georgia. 
 
 Committee No. 2. 
 
 (12) Robert A. Chesebrough vs. George B. McClellan, New Yorlx. 
 
 (13) Timothy J. Campbell vs. Henry C. Miner, New Ym'k. 
 (11) Robert T. Van Horn vs. John C. Tarsnej^, Missouri. 
 
 (15) H. Dudley Coleman vs. Charles F. Buck, Louisiana. 
 
 (16) William S. Booze vs. Harry Welles Rusk, Maryland. 
 
 (17) Alexis Benoit vs. Charles J. Boatner (first case), Louisiana. 
 
 (18) Cyrus Thompson vs. John G. Shaw, North Carolina. 
 
 (19) Henry P. Cheatham vs. Frederick A. Woodard, North Caro- 
 lina. 
 
 (20) John Murray Mitchell vs. James J. Walsh, New Yo7'k. 
 
 (21) Charles H. Martin vs. John A. Lockhait, North Carolina. 
 
 (22) Alexis Benoit vs. Charles J. Boatner (second case), Louisiana. 
 
 (23) Taylor Beattie vs. Andrew Price, Louisiana. 
 
 Committee No. 3. 
 
 (24) J. H. Davis vs. D. B. Culberson, Texas. 
 
 (25) A. J. Rosenthal vs. Miles Crowley, Texas. 
 
 (26) Robert Moorman vs. A. C. Latimei', South Carolina. 
 
 (27) James B. Johnston vs. J. William Stokes, South Carolina. 
 
 (28) George W. Cornett vs. Claude A. Swanson, Virginia. 
 
 (29) J. Hampton Hoge vs. Peter J. Otey, Virginia, 
 
 (30) R. T. Thorp vs. W. R. McKenney, Virginia. 
 
 (31) Giles Otis Pearce vs. John C. Bell, Colorado. 
 
 (32) A. M. Newman vs. J. G. Spencer, Mississippi. 
 
 (33) W. P. Ratliff vs. J. S. Williams, Mississippi. 
 
 (34) John A. Brown vs. John M. Allen, Mississippi. 
 
 (35) Joshua E. Wilson vs. John McLaurin, South Carolina. 
 
 (36) George W. Murray vs. William Elliott, South Carolina. 
 
 (37) J. C. Kearby vs. Jo. Abbott, Texas. 
 
 (38) Jacob Yost vs. H. St. George Tucker, Virginia. 
 
 (1) Belknap vs. McGann. 
 
 Election of contestant conceded. Contestant seated. 
 
 Report by Mr. Daniels. 
 
 Contestee conceded before the committee that contestant was elected, 
 and the committee presented a report stating this fact and commend- 
 ing the action of contestee. Resolutions declaring contestant elected 
 were adopted by the House without division, and Mr. Belknap, on 
 December 27, 1895, was sworn in. 
 
 [Report 5, first session Fifty -fourth Congress.] 
 
502 DIGEST OF CONTESTED ELECTION OASES. 
 
 (2) McDonald m. Jones. 
 
 Leave to contest denied. Probable cause not shown., and contestant 
 ind/f/lhle. 
 
 Report by Mr. Turner. 
 
 This case came before the committee on an application from James 
 M. McDonald to serve notice of contest on William A. Jones, who 
 was returned as elected. The committee refused the petition on the 
 grounds that with reasonable diligence a notice could have been served 
 within the time, that in the proofs presented it did not appear that 
 there was any substantial ground in fact for the proposed contest, and 
 that the petitioner, being engaged in business in tne District of Colum- 
 bia and having no residence or business in Virginia, was not at or near 
 the time of the election an inhabitant of Virginia, and was, therefore, 
 not eligible. 
 
 The resolution denying the application of petitioner was passed hy 
 the House without division. 
 
 [Report 568, fii-st session Fifty-fourth Congress.] 
 
 (3) Aldrich vx. Bobbins. 
 
 Fraud. Majority reports fen' contestant; minority r'eport fm- con- 
 testee. Contestant seated. 
 
 Majority reports by Mr. Daniels and Mr. Royse; minority report 
 by Mr. Dinsmore. 
 
 This case turned on the question of fraudulent returns from a large 
 part of the precincts of Dallas Countj". The district (the Fourth 
 Alabama) consisted of six counties — five "white" counties and one 
 (Dallas) county in the "black belt." Contestant had a majority of the 
 votes in the five "white" counties, and there were no charges of 
 fraud except at a few scattered precincts in them, but in Dallas County 
 contesteewas returned as receiving 5,390 majority, nearly all of which 
 was in the fifteen precincts in regard to which evidence was taken. 
 In each of these precincts the returns showed a very large vote, pi-ac- 
 tically all for contestee. Contestant introduced the testimony of per- 
 sons who were at the polls all day and kept count or tally of the 
 number of persons who voted or were present where thej^ could have 
 voted. The number in each case was a very small fraction of the vote 
 returned. There was also evidence that many of the names on the 
 poll lists were those of dead, removed, or fictitious persons, and in 
 some precincts a number of those returned as voting testified that they 
 did not vote. It was also shown that there was a general agreeii>ent 
 of friends of contestant, at the request of their leaders, not to vote or 
 register in this county, as they had been refused representation on the 
 election boards, and feared that their votes, if cast, would be fraudu- 
 lently counted for contestee. 
 
 Contestee _did not call any of the election oflicers to sustain the 
 returns, but called other persons to testify to their good reputation. 
 
 The committee presented three reports, all of which found fraud in 
 Dallas County. The majority presented two reports, one signed by 
 Mr. Daniels and Mr. Cooke, in which contestant was found to be 
 elected by 601 majority, and the other presented by Mr. Royse, in 
 which his election was found hy 1,131 majority. The minority pre- 
 
FIFTY-FOURTH CONGEESS. 503 
 
 sented a report in which the majority of contestee was reduced from 
 3,736 to 559, but the testimony was found to be inadequate to overcome 
 the remainder of the majority. 
 
 The principal difference between the two majority reports was in 
 counting the votes of the precincts in which the returns were proved 
 fraudulent. The report presented by Mr. Daniels credited to contestee 
 all the votes left after deducting the number specifically proved to be 
 fraudulent; that presented by Mr. Royse rejected the whole of the 
 returns and counted only such votes as were incidentally proved 
 aliunde. The minority also counted only the votes proved aliunde, but 
 found that the' proof of fraud was clear enough to overcome the pre- 
 sumption of correctness of the returns in only nine of the precincts. 
 
 There were several precincts in other counties in which the returns 
 were impeached by testimony that more voters voted for contestant than 
 were returned for him. 
 
 Contestee objected to the sufficiency of the notice of contest, and also 
 to all the testimony taken in Dallas and Calhoun counties before a 
 notary appointed under the laws of Alabama to act in Shelby (/ounty. 
 The committee found that the notice, which charged at each precinct 
 that a specified number of votes returned were in fact not cast, was 
 sufficiently specific. As to the competency of the notary, both majority 
 reports said: 
 
 It was also objected for the contestee that the notary before whom the evidence 
 was taken was without authority to take that obtained out of the county for which 
 he had been appointed to act under the laws of the State. But he was not acting 
 within the restrictions imposed upon him by the laws of the State of Alabama in taking 
 this evidence. The laws of the United States prescribed a special mode of proceeding 
 for this class of cases, and aside from this authority no evidence in a contested elec- 
 tion could be taken before the officers enumerated in the statute. 
 
 An object of the statute was to point out the persons who should be empowered to 
 take the evidence, not to exercise their functions as State, city, or county officers, but 
 to execute the full authority created for this purpose by Congress. The notary is one 
 of these officers, selected, however, to act under Federal, not under State, authority, 
 and the power to act has been given to him commensurate with the object to be 
 attained. 
 
 By the language of the statute the contestant is empowered to apply for a subpoena 
 to any notary, etc., who may reside within the Congressional district in which the 
 election to be contested was held. The officer is also required to issue subpoenas 
 directed to all such persons as shall be named to him, requiring their attendance at 
 some time and place mentioned in the subpoena. And the only restriction imposed 
 is that the witness shall not be required to attend out of the county of his residence. 
 
 As to the power of the officer, he may act anywhere within the Congressional dis- 
 trict. His authority has been restricted to no subdivision of it whatever. He may 
 issue subpoenas for all such witnesses as shall be named to him, and the subpoenas 
 must be returnable before himself. As that is the mode of proceeding which has 
 been indicated, any officer mentioned in the statute may act, and in acting has been 
 given complete authority to act wholly and effectually. The law further provides 
 that the witnesses who attend shall be examined on oath by the officer who issued 
 the subpoena, unless he may be absent, etc. 
 
 From the generality of these regulations it is clear that a single officer has been 
 empowered to issue all the subpoenas and take all the evidence. They are quite 
 explicit, and create a system in and of themselves in no- measure dependent on the 
 laws of the State (U. S. Rev. Stat, 19, 20, sees. 110, 115, 120), and this effect was 
 accorded to the statute in the contest of Washburn against Voorhees (2 Bartlett, 54). 
 
 The minority said: 
 
 The true test to applj^ to this question is: If a witness who had been sworn before 
 this notary public were indicted for perjury or false swearing before him in this case 
 where the oath was administered and the testimony given in Dallas or Calhoun 
 counties, could he be convicted? He could not, in either State or Federal court. 
 
504 DIGEST 01" CONTESTED ELECTION CASES. 
 
 On the question of the weight to be given to the returns the 
 minority said: 
 
 The return of the election officers, made, as it is, under oath, is prima facie evidence 
 of the truth of their contents and must stand aa the truth until such facts are proven 
 as to clearly show that it is not true or that they are fraudulent. Wherever it has 
 been conclusively shown by the evidence that fraud waa perpetrated upon the part 
 of the election officers sufficient to cast suspicion upon the returns, we have disre- 
 garded the returns and have resorted to aliunde proof for the purpose of establishing 
 the votes received by each the contestant and the contestee. 
 
 The minority also held that the ballots themselves should have been 
 presented to impeach the returns of the election officers. 
 
 It needs only to be stated that the ballots themselves constituted the best and only 
 admissible evidence until explanation was made as to why they were not and could 
 not be introduced. 
 
 The case was fully debated in the House, and the substitute reso- 
 lutions presented by the minoritj^ were lost by a vote of 58 to 173. 
 The resolutions presented by the majority were then passed without 
 division, and (on March 13, 1896) Mr. Aldrich was sworn in. 
 
 [Report 572, parts 1, 2, and 3, first session Fifty-fourth Congress.] 
 
 (4) GooDWYN vs. Cobb. 
 
 Fraud. Majority report for contestant; minority report for con- 
 testee. Contestant seated. 
 
 Majority report by Mr. Daniels; minority report by Mr. Bartlett. 
 
 The general charges and issues in this case were similar to those in 
 the case of Aldrich vs. Robbins, above, but contestee in this case took 
 more testimony and there was more conflict of evidence. Contestee 
 received, according to the returns as canvassed, a majority of 748, but 
 the committee states that part of this was due to an error in foofeng, 
 and that the correct figure was 508. All his majorities were in the 
 "black counties," contestant receiving in the "white counties" aggre- 
 gate majorities of 3,612 votes. Contestant charged that the votes 
 returned from a number of precincts returned as casting a verj' large 
 vote, practically all for contestee, were for the most part fictitious, and 
 introduced testimony to show that a much smaller number of votes 
 were cast at each of these precincts than were returned. He also 
 introduced testimony that some of the names on the poll lists were 
 those of dead or absent persons, and called voters who were on the 
 lists as voting but testified that they did not vote. He also showed 
 that at most of these precincts his friends were not represented on the 
 election boards, and that contestee had refused to join with him in a 
 request for such representation. 
 
 Contestee called the officers of election to testify to the correctness 
 of the returns and the fairness of the election, and other persons to 
 contradict or explain some of the circumstances testified to by contest- 
 ant's witnesses. The refusal to allow contestant's friends representa- 
 tion on the board was explained by the fact that contestant was a 
 Populist, and representation was given instead to the Republican and 
 Democratic parties as the two dominant parties. 
 
 Technical objections were entered and strongly urged against most 
 of contestant's testimony, and were discussed at length in both reports. 
 The returns, registration and poll lists, and other record evidence were 
 objected to as not properly certified or as certified by officers not having 
 
FIJ?TY-FOUKTH CONGRESS. 505 
 
 authority to make such certificates, but the committee overruled most 
 of these objections and cured the rest by procuring other and more 
 perfect certificates. Testimony was also taken before a notary outside 
 of his own county, but within Ihe district. This question had already 
 been decided in the case of Aldrich vs. Bobbins. Some witnesses were 
 examined outside of the district by an officer residing within the dis- 
 trict, but onlj'^ one of these was objected to at the time, and the com- 
 mittee did not consider his testimony. Contestee further objected that 
 the whole registration law of Alabam" was unconstitutional, but the 
 committee called attention to the fac^ .l.at no vote in this case was 
 shown to be affected by the only point on which the law could be 
 claimed to be unconstitutional. 
 
 The minority sustained all these objections to the testimony and 
 emphasized their importance. 
 
 On the questions of fact involved the majority and the minority 
 analyzed the testimony in I'egard to each precinct in detail, and came 
 in most cases to opposite conclusions. 
 
 One technical point was brought by the minority before the House 
 in a separate motion. Contestant had taken in his ten days for rebuttal 
 some testimony alleged to be testimonj' in chief. A motion was made 
 to recommit the case, to allow contestee further time to take testimony 
 in response to this testimony, but the motion was voted down by a 
 vote of 60 to 131. 
 
 The case was fullj' debated, and on April 21, 1.S96, the resolution 
 declaring contestee not elected was carried l))^ a vote of 119 to 45. 
 The point of no quorum was made, and the resolution went over to 
 the next day, when the resolution declaring contestant elected was 
 passed b}- i45 to 55, and (on April 22, 1S96) Mr. Goodwyn was 
 sworn in. 
 
 [Report 1122, parts 1 and 2, first session, Fifty-fourth Congress.] 
 
 (5) KoBiNsoN vs. Harrison. 
 
 Fraud, intimidation, and hrihery. Report for contestee, who retained 
 the sedt. 
 
 Report by Mr. Leonard. 
 
 According to the returns as canvassed, contestee received a majority 
 of 5,006 votes. The return of one county, in which contestant received 
 a majority of 402 votes, was received too late to be included in the 
 canvass. Contestant claimed that the vote of this county should be 
 counted, and that the votes of a number of precincts should be thrown 
 out for fraud, intimidation, or bribery. If all of his contentions 
 should be sustained, he would have a majority of 470 votes. The 
 committee found the charges sustained in enough cases to reduce the 
 returned majority of contestee from 5,006 to 2,254, but as he was still 
 shown to be elected after eliminating the fraud proved, resolutions 
 declaring him elected were recommended. The minority agreed in 
 this conclusion, but not in the reasoning or statement of facts. 
 
 In one precinct there was a disturbance before the opening of the 
 polls, but the election itself was orderly, and there was no intimidation. 
 One of the judges of election bribed 25 voters to vote for contestee, 
 but these could be eliminated without throwing out the whole poll. 
 
506 DIGEST OV CONTESTED ELECTION CASES. 
 
 In some other precincts the vote returned (practically all for contestee) 
 was very large, while the number of votes cast was proved to have 
 been much smaller, and part of the names on the poll lists were shown 
 to he fraudulent. These returns were rejected. In other cases where 
 the discrepancy was smaller the returns were corrected according to 
 the probable state of the vote. The vote of Geneva County (not can- 
 vassed) was counted by the committee. 
 
 The resolutions recommended were passed by the House without 
 division, so contestee retained the seat. 
 
 [Report 1121, first session Fifty-fourth Congress.] 
 
 (6) RiNAKER vs. Downing. 
 
 IrreffulcM'ities, ^^ assisted voters," unauthrnvsed recount, illegal votes. 
 Majarity report for contestant ; _ 'minority report to order new recount. 
 House sustained minority, and on new recount contestant found elected. 
 Contestant then seated. 
 
 Majority report by Mr. Cooke;' minority report by Mr. Moody; 
 final report by Mr. Moody. 
 
 According to the returns contestee had a plurality" of 40 votes. 
 Contestant claimed that this majority would be overcome by deducting 
 from both sides various irregular ballots and illegal votes. He also 
 undertook to have all the ballots recounted, but was restrained by an 
 injunction granted at the instance of contestee. He introduced evi- 
 dence of a tally privately kept of his vote in some of the precincts 
 during a recount of the votes on certain local ofiices, and the commit- 
 tee accepted the result of this private recount on the ground that con- 
 testee had made it admissible by himself preventing any ofiicial recount 
 from being held, and that the evidence snowed that it was made with 
 sufiicient care to be trustworthy. The committee also counted the 
 ballots of certain voters claimed by contestee to be invalid because the 
 voters, most of whom were shown to be in fact illiterates, had not 
 made the oath of disability required by law before being assisted in 
 marking their ballots. Under these rulings contestant would have a 
 majority of 30 votes. As each of the above two questions (the unau- 
 thorized recount and the assisted voters) covered more than 30 votes, 
 either of them was decisive of the case. 
 
 The law of Illinois on the subject of recounts was as follows: 
 
 In all cases of contested election the parties contesting the same shall have the 
 right to have the package of ballots cast at such election opened, and to have all 
 errors of the judges in counting or refusing to count any ballot corrected by the 
 court or body trying such contest; but such ballots shall lie opened only in open 
 court, or in open session of such body, and in the presence of the officer having the 
 custody thereof. 
 
 Resting on this statute, contestee sought and obtained an injunction 
 restraining the county clerks of the several counties in the district 
 from opening or permitting to be opened any of the sealed packages 
 of ballots "vmtil the same is ordered to be opened and recounted by a 
 court of competent jurisdiction of the State of Illinois, or of the 
 United States, or by the House of Representatives in Congress of the 
 
 ' Through an error of the printer the majorit}' report in this case was printed as 
 being presented by Mr. Daniels. The error was explained in debate. 
 
FIPTY-FOUETH CONGRESS. 507 
 
 United States after the 3d day of March, A. D. 1895." In his appli- 
 cation for injunction contestee alleged: 
 
 That said ballots are the best evidence of his election, and if the same be so taken 
 and opened, as demanded, they will lose their efficacy and virtue as legal evidence 
 of his election, because the said ballots can not legally be opened and recounted except 
 in open court or in open session of the body authorized by law to try said contest. 
 
 The committee held that under the Federal law for taking testimony 
 in contested-election cases the notary taking testimony should haxe 
 had power to require the production of these ballots. The law is: 
 
 Sec. 123. The officer shall have the powi.T to require the production of papers; 
 and on the refusal or neglect of any person to produce and deliver up any paper or 
 papers in his possession pertaining to the election, or to produce and deliver up cer- 
 tified or sworn copies of .the same in case they may be official papers, such person 
 shall be liable to all the penalties prescribed in section 116. All papers thus pro- 
 duced and all certified or sworn copies of official papers shall be transmitted by the 
 officer, with the testimony of the witnesses, to the Clerk of the House of Repre- 
 sentatives. 
 
 Discussing this subject, the committee said: 
 
 The contestee, by his bill in chancery seeking the injunction, by direct language 
 insists upon such a construction of the statute of Illinois regulating and restraining 
 the opening and counting of the ballots as shall bring that statute in direct conflict 
 with the statute of the United States, and which latter statute plainly and clearly gives 
 to both parties to an election contest over the seat of a member of the House of Rep- 
 resentatives the right to select any one of the officers mentioned in the Federal statute 
 before whom to take the testimony, and clothes that officer, when so selected, with 
 the full power to require the production of any paper or papers pertaining tn the elec- 
 tion, or to produce and deliver up certified or sworn copies of the same in case they 
 may be official papers. 
 
 In view of the plenary and clear terms of the Federal statute, it is the opinion of 
 the undersigned that the statute of Illinois should be construed to mean that where 
 the ballots cast at any election for member of the House of Representatives are called 
 for by a subpoena duces tecum issued by a notary public selected under sections 110, 
 111, and 123 of the act of Congress regulating the contests of seats in the House of 
 Representatives the notary so selected fully represents the House of Representatives 
 and constitutes a tribunal or body for the purpose and with the power of procuring 
 and reducing to written form such evidence as the ballots may contain, so as to com- 
 ply with the obvious intention of the State statute, inasmuch as it is obvioush- impos- 
 sible for the ballots in a contested-election case in the House of Representatives to be 
 opened "in open session of such body, and in the presence of the officer having the 
 custody thereof." 
 
 The powers conferred by the Federal statute upon the notary public, or other offi- 
 cers mentioned, to call for and enforce the production of all the papers pertaining to 
 the election, are full and complete and render such officer, to that extent, a "body 
 trying such contest," to the extent of his obtaining and recording the evidence in 
 the case. That is plainly and clearly the meaning and effect of the act of Congress, 
 and the State statute should be construed so as to be iu harmony rather than in con- 
 flict therewith. 
 
 To construe the State statute so as to prohibit the notarj; or other officers taking 
 the testimony in a Congressional election contest from obtaining the evidence con- 
 tained in the ballots would be to give to the State statute the effect of repealing or 
 nullifying the Federal law regulating Congressional election c'ontests. Congress has 
 the power to regulate the taking of testimony in case of the contest of the election of 
 any member of the House of Representatives. That power has been exercised by the 
 enactment of the statute above quoted, and when in conflict with its provisions all 
 conflicting State statutes or decisions to the extent to which they do conflict must be 
 held to be nugatory and void. * * * 
 
 In the opinion of the undersigned, Congress has by statute made ample provision for 
 an inspection, examination, and recount of the ballots far in advance of the meeting 
 of Congress, and that it is not intended, or to be tolerated, that the time of the mem- 
 bers of the Election Committee shall be consumed in the recounting of ballots cover- 
 ing an entire Congressional district, during a session of Congress, when each member 
 has a duty to perform in the everyday course of its proceedings; nor is it to be per- 
 mitted that a device, such as that of obtaining an injunction, contrary to the act of 
 
508 DIGEST OF CONTESTED ELECTION CA8E8. 
 
 Congress, shall operate to prolong a contest practically until near the end of the term 
 for which the member was elected. 
 
 The conclusion and finding of the undersigned, therefore, is that the injunction 
 procured by the contestee, prohibiting the opening and counting of the ballots in this 
 case, was illegal and wrongful, and that, as a consequence thereof, the contestant was 
 at liberty to offer such secondary evidence of the contents of the ballots and of the 
 facts shown by the evidence suppressed as would in a court of law be allowed in a 
 case in which one of the parties had concealed or refused to produce legal and mate- 
 rial evidence within his possession or control. 
 
 In two of the counties in the district there were contests between 
 candidates for local offices, in which the ballots were recounted. Dur- 
 ing the recount of 25 of the precincts in one county and of 4 in the 
 other county a friend of contestant kept a tally of the losses and gains 
 of the Congressional votes, as observed by him on the ballots. These 
 tallies showed a net gain for contestant of 35 votes in one county and 
 of i votes in the other, which, for the reasons outlined above, the com- 
 mittee allowed him. 
 
 There were 30 ballots marked with a cross both in the circle at the 
 head of the Republican ticket and at the head of the "Independent 
 Republican " ticket. The latter column contained but one name, that 
 of the independent candidate for a local office, and under a recent 
 decision of the supreme court of Illinois the committee held that there 
 was no "double marking" for the other offices and counted the 
 ballots. 
 
 There were also 57 ballots in question for miscellaneous irregulari- 
 ties in marking. The committee discussed the general principles 
 applying to such cases and found that 41 of these ballots were fatally 
 defective, even under the liberal construction of the law recommended. 
 
 Of the 65 alleged illegal votes brought in question, the committee 
 found only 6 proved against contestee and i against contestant. 
 
 The law in regard to the assistance of illiterate or disabled voters 
 was: 
 
 Chapter 46, paragraph 311, section 14. Every voter who may declare upon oath 
 that he can not read the English language, or that by reason of any physical disa- 
 bility he is unable to mark his ballot, shall, upon request, be assisted in marking bis 
 ballot by two of the election officers of different political parties to be selected from 
 the judges and clerks of the precincts in which they ar« to act, to be designated by 
 the judges of election of each precinct at the opening of the polls. 
 
 A number of voters were assisted by the election officers whose 
 declaration of inability was informal and not on oath. The assistance 
 was not officious, but was asked for by the voters, and the judges knew 
 or believed the voters to be in fact entitled to it. The committee held 
 the law to be directory and counted the votes. 
 
 In the opinion of the undersigned, the Illinois statute is directory only, and the 
 Illinois legislature intended not to disfranchise the voter who innocently received 
 assistance without making the statutory oath, by omitting those clauses found in 
 other like statutes which do, or are construed to, prohibit the counting of the ballots 
 of voters so assisted. 
 
 The committee quoted approvingly from the minority report in the 
 case of O'Neill v.'^. Joy in the preceding Congress and discussed the case 
 of Steward vs._ Childs in the same Congress, showing that the precedent 
 in that case did not apply to this and was otherwise not binding. 
 
 In Cass and Pike counties the word "Independent" at the head of 
 the "Independent Republican" column was printed in letters only 
 one-eighth of an inch high, the law requiring them to be one-fourth 
 of an inch. The type in the second word of the neading (' ' Republican ") 
 
FIFTT-FOUKTH CONGRESS. 509 
 
 was of the right size. The section of the ballot law referring to the 
 manner of printing the ballot, unlike the other sections, contained a 
 mandatory clause. The committee, however, concluded that, from the 
 general trend of its decisions on similar questions, the supreme court 
 of Illinois would in a case like this inquire whether any fraud was 
 intended or any harm done. Since there was no such element in this 
 case, they counted the ballots rather than disfranchise the voters of 
 two counties for an oversight of the officials. 
 
 The minority discussed only the two questions of the recount and 
 the assisted voters, either of which, as they pointed out, would be 
 decisive. They argued that the position of the Illinois court granting 
 the injunction against opening the ballots was at least defensible; that 
 its effect was not to suppress but to preserve the evidence, and that the 
 recounts in any case were worth less than the original counts. If the 
 House desired to know the state of the ballots it should send for them 
 and have them counted. 
 
 On the question of assisted voters the minority held the law to be 
 mandatory. Under the old ballot laws such provisions could be more 
 liberally construed, but — 
 
 Under the Australian ballot system secrecy is not merely permitted, it is enforced; 
 it is not solely for the benefit of the voter, but for the benefit of the public as well. 
 A compulsory secrecy unknown to former systems of voting is a fundamental and 
 essential element of this ballot law. 
 
 As either of these points would- be decisive of the case against con- 
 testee, the minority recommended resolutions recommitting the case 
 to the committee, with instructions to recount or have recounted the 
 ballots. The House, as will be seen, adopted this resolution, and in 
 doing so appears to have agreed with the minority on the subject of 
 the recount and with the majority on the subject of assisted voters. 
 
 The case was fully debated, and led to a long parliamentary contest, 
 in which many subsidiary motions were voted on. The final vote to 
 recommit the case, as recommended by the minority, was 137 to 13 (33 
 counted present and not voting to make a quorum). 
 
 The ballots were sent for and recounted, and contestant was found 
 to have a plurality of 6 votes, most of the gain (26) being in one pre- 
 cinct. The committee therefore brought in a brief report, stating 
 the figures as shown by the recount and recommending the seating of 
 contestant. The minority still expressed their opinion that the ques- 
 tion of "assisted voters" would be decisive of the case for contestee, 
 "yet believe that the House would not adopt their opinion in that 
 respect in the absence of a controlling decision by the court of final 
 resort in the State of Illinois." A motion to recommit the case was 
 lost by a vote of 48 to 165, and the resolution seating contestant was 
 then passed by a vote of 167 to 52. Mr. Downing was then (on 
 June 5, 1896) sworn in. 
 
 [Report 1400, parts 1 and 2, first session Fifty -fourth Congress, and 
 report 2247, first session Fifty-fourth Congress.] 
 
 (7) Aldeich vs. Underwood. 
 
 Fr(md. Majority report for contestant; minority report for con- 
 testee. Contestant seated. 
 
 Majority report by Mr. Daniels; minority report by Mr. Bartlett. 
 On the returns as canvassed contestee had a majority of 1,166. 
 Addinff some votes not canvassed he had a majority of 1,278. The 
 
510 DIGEST OF CONTESTED ELECTION CASES. 
 
 committee found that if all the fraud shown by the evidence were 
 eliminated, and the vote corrected in accordance with the proof, con- 
 testant would have a majority of 220. Most of the issues in the case 
 were questions of fact, depending on the weighing of conflicting 
 testimony. 
 
 The committee added votes to contestant in one precinct in which 
 the voters had been prevented from voting by the intimidation of bois- 
 terous election officers and challengers; in another in which many 
 frivolous arrests were made; in one in which most of the ballots had 
 been stolen the night before election, and there was a long delay in 
 procuring other ballots; in one in which the booths and ballot box 
 were in different rooms, so arranged that the law was substantially 
 violated and the voter had no assurance that his own ballot went into 
 the box, and there were other evidences of fraud; and in several in 
 which there was evidence that more votes were cast for contestant 
 and fewer for contestee than the returns showed. In some precincts 
 contestee called a large number of colored voters to testify that they 
 voted for him, but their answers were all alike and evidently "coached," 
 and the committee disregarded them. 
 
 The minority went over the evidence from these precincts in detail, 
 showing the contradictions and inconclusiveness of the evidence, but 
 even giving the contestant the benefit of the doubt as to votes claimed 
 by him in some precincts where the testimony was very conflicting, 
 they found that contestee still had a majority of 1,038 votes. 
 
 The case was fully debated, and the resolutions proposed by the 
 committee passed by votes of 119 to 98 and 116 to 107. Mr. Aldrich 
 was then (on June 9, 1896) sworn in. 
 
 [Keport 2006, parts 1 and 2, first session Fifty-fourth Congress.] 
 
 (8) Felton vs. Maddox. 
 
 Fraud; irregularities. Report for contestee, who retained the seat. 
 
 Report by Mr. Daniels. 
 
 Contestee had a returned majority of 1,562 votes. Contestant charged 
 fraud and irregularities to his prejudice in three counties, and con- 
 testee made countercharges in three other counties- As the committee 
 found that contestant's charges, so far as sustained by evidence, could 
 not possibly reduce the majority of contestee more than 350 votes, they 
 did not enter into a discussion of the countercharges. 
 
 In one county the registration list was verified by only one commis- 
 sioner, instead of by the board; in another it was written instead of 
 printed, and there were minor irregularities in the third; but the com- 
 mittee found that none of these irregularities were fatal under the 
 Georgia law. The charges of fraud in these counties were not sus- 
 tained, and the individual cases of wrongful reception or rejection of 
 votes were comparatively few. The committee eliminated the maximum 
 number shown by the testimony. 
 
 The resolution confirming sitting member in his seat was passed May 
 11, 1896, without division. 
 
 [Report 1743, first session Fifty-fourth Congress.] 
 
FIFTY-FOUETH CONGRESS. 611 
 
 (9) Denny m. Owens. 
 
 Irregularities. Iteport for sitting memher, who retained the seat. 
 
 Eeport by Mr. Turner. 
 
 According to the returns contestee had a plurality of 101 votes. 
 Contestant charged irregularities to his prejudice in two counties, and 
 both parties proved many irregularities at various precincts, but the 
 committee found that, after all deductions, contestee still had a plu- 
 rality of 61 votes. 
 
 In one county 117 witnesses swore that they were legal voters and 
 were refused registration, and there was other evidence indicating that 
 the number refused might have been 200 or 300, but very few of 
 these appeared at the polls and offered to vote, and there was no evi- 
 dence that the registration officers required more proof than the law 
 required, or that the applicants for registration offered all the proof 
 required. Proof was required, or permitted to be required, of all 
 persons not personally known to the registration officers. 
 
 It is just as important that tlie registration lists be kept free from the names of 
 persons which are not entitled to be there as it ia that every legal voter shall be reg- 
 istered when he makes such application. In order that registration lists be kept 
 pure the oiHcers of registration are required to take the precaution prescribed by 
 these sections, and they can not be charged with wrongdoing if they do this, though 
 it may put legal voters to inconvenience. 
 
 In Franklin County the returns were twice canvassed. Contestant 
 claimed that both proceedings were illegal, the first because conducted 
 by the wrong board, and the second because conducted on the wrong 
 day. It was conceded that the first canvass (made also one day too 
 soon) was illegal because the members of the board, being themselves 
 candidates for office, were forbidden by the law to make the canvass. 
 The nearest justices of the peace, who were by law required to take 
 the places of the regular canvassing board when its members were dis- 
 qualified, met a few days later and correctly canvassed the returns. 
 
 It is admitted by both parties that the first board had no authority to canvass the 
 returns of the county. 
 
 Contestant, while admitting that the second board was properly constituted, main- 
 tains that as its canvaas was had on a day not designated by law, it was illegal and 
 void. 
 
 We can not agree with him in this contention. We think that the proper board 
 could be compelled to make this canvass by a mandate from any court of competent 
 iuriadiction. If this be true, then the board may do the same thing without the 
 mandate of a court. The mandate does not give the right to canvass the returns, 
 but requires it to be done; because, as a matter of right, it ought to be done. Cer- 
 tainly it would be a good return to the alternative writ if the board were to say they 
 had already done what, the court was asking them to do. 
 
 Aside from this, we are of the opinion that we would have the right to canvass 
 the returns in this contest and declare the result, though there had never been a 
 canvass. 
 
 Very great irregularities and some frauds were found in many of 
 the precincts, but they were committed in the interest of both parties 
 and the votes affected practically balanced each other. 
 
 The committee, therefore, reported resolutions confirming contestfee 
 in his seat, and on May 19, 1896, the resolutions were passed by the 
 House, without division. 
 
 [Report 1877, first session Fifty -fourth Congress.] 
 
512 DIGEST OF CONTESTED ELECTION CASES. 
 
 (10) Hopkins m. Kendali>. 
 
 Wrong device mihoMot. Majority r&port for sitting rriemher; minor- 
 ity report for contesta/nt. Contestant seated. 
 
 Majority report by Mr. Daniels; minority report by Mr. Royse. 
 
 Contestee received a re-ajority of 253 on the face of the returns. 
 Contestant claimed that, through a fraud, to which the county clerk 
 of Clark County was a party, tne emblem, "the eagle about to fly," 
 regularly used by the Republican party, was placed over another col- 
 umn containing the names of certain candidates for local offices placed 
 on the ticket by petition, while the emblem of a raccoon was placed 
 over the regular Republican ticket. There seems to , have been no 
 question about the facts and no doubt of their fraudulent intent. The 
 petition ticket was the result of a conspiracy intended to injure con- 
 testant, and bribery was used to obtain signatures. The ballots were 
 not distributed until the morning of the election, in order, if possible, 
 to conceal the deception. Seventy-nine voters were in fact deceived, 
 and voted the "eagle" ticket, no doubt under the impression that 
 they were voting the Republican ticket. 
 
 The committee reported these facts and condemned them, but as the 
 exact extent of the injury done was shown by the 79 votes cast for the 
 fraudulent ticket, they cured the injury by restoring these votes to 
 contestant. No other voters could have been misled by the deception, 
 and there was no definite evidence that any person who intended to 
 vote was deterred from voting. There was evidence, in fact, that 
 contestant received within 42 votes of the full estimated Republican 
 vote of the county. 
 
 All but two members of the committee, therefore, joined in a report 
 declaring contestee elected. 
 
 Mr. Royse and Mr. Linney signed a report declaring contestant 
 elected. They explained at length the heinous character of the fraud 
 committed, and said: 
 
 We do not think that the injuries which flow from a wrong of this kind are capable 
 of anything like an accurate measurement. Such injuries are not capable of being 
 weighed, and if they were we would not feel justified in using apothecary's scales for 
 such purpose. From such a bold and unscrupulous transaction the presumption 
 must flow that a grievous wrong has been done, resulting in serious injury to con- 
 testant. 
 
 Contestant is the innocent victim of this fraud of the clerk of Clark County. We 
 do not believe it right to throw upon him the burden of making an accurate meas- 
 urement of the extent of his injuries. Even if we should require him to furnish any 
 evidence upon this subject it should only be slight, and then shift the burden of proof 
 upon him who has received the benefit of this fraud. 
 
 But even under the rigid rule of the committee, the minority could 
 not concede that the extent of the injury was measured by the 79 votes 
 actually cast for the fraudulent ticket. The district had always been a 
 Democratic one, but in this election the Democratic majority had been 
 cut down to 203 by contestant making large gains in every county but 
 Clark. It was fair to suppose that the exception in this county was 
 due to the fraudulent ticket. It was a year in which Republicans were 
 making gains everywhere — everywhere but in Clark County, Ky. 
 Moreover, the whole ballot in this county was void in law by reason of 
 this fraudulent petition. There were only 104: signers to the petition, 
 of whom 10 did not give their addresses, thus leaving less than the 
 required 100 legal signatures. This fact, as well as the fraudulent 
 
FIFTY-FOURTH CONGRESS. 513 
 
 device, invalidated the whole ticket, and the vote of the county should 
 be thrown out. 
 
 During the first session of Congress resolutions were twice pre- 
 sented and passed giving the parties additional time to take testimony 
 in regard to the Clark County election, and the case did not come to a 
 decision until near the close of the second session. The case was fully 
 debated, and the resolutions presented by the minority were adopted 
 by a vote of 197 to 91, and on February 18, 1897, Mr. Hopkins was 
 sworn in. 
 
 [Report 2809, second session Fifty-fourth Congress, parts 1 and 2.] 
 
 (11) Watson vs. Black. 
 
 Fraiuhdent registration; iribery and repeating. Report for con- 
 testee, who retained tJie seat. ' 
 
 Report by Mr. Bartlett. 
 
 Contestee had a majority of 1,556 votes on the face of the returns. 
 Contestant made charges against the fairness of the registration in 
 every count}^ in the district, and charged fraud, bribery, and repeat- 
 ing in Richmond County and the city of Augusta. The contest was 
 finally narrowed to Richmond County and Augusta, all of the votes of 
 which must be thrown out in order to sustain contestant's claim. He 
 alleged that the registration list had been padded in this county with 
 the names of 2,000 illegal voters, in pursuance of a conspiracy to 
 overcome in this county by fraud any majority he might get in the 
 rest of the district, and that the reg'isfrrar refused to purge the list of 
 these illegal names, though furnished a list of them. The vote of 
 Augusta was also challenged because more than one ballot box was 
 used in each ward, and charges of bribery and repeating were also 
 made. In regard to the two or more ballot boxes in the Augusta 
 wards, the committee simply referred to the case in the preceding 
 Congress between the same parties in which the same charge was 
 made, and quoted from the report in that case. A careful review of 
 the evidence in regard to I'egistration showed that the charges were 
 not sustained. The law was strictly complied with and there was the 
 utmost fairness. Contestant's party was represented on the board. 
 There was some evidence indicating that a few repeaters voted in 
 Augusta, and a few negroes were given 10 cents apiece for car fare or 
 lunch. But "if there were deducted from contestee's vote in the 
 county of Richmond every vote that has in any way been shown to be 
 illegal, and believed by the witnesses to have been cast for him, his 
 majority still would be large and not overcome." 
 
 The committee therefore recommended resolutions declaring con- 
 testee elected, which, on March 2, 1897, were adopted hj the House 
 without division. 
 
 [Report 2892, second session Fifty -fourth Congress.] 
 
 (12) Chesebrough vs. McClellan. 
 
 Contest withd/rawn. Contestee confirtned in seat. 
 
 Report by Mr. Johnson. 
 
 Contestant served notice of contest, alleging illegal votes, and also, 
 charging that during the campaign contestee had instigated the pro- 
 
 H. Doc. 510 33 
 
514 DIGEST OF CONTESTED ELECTION CASES. 
 
 mulgation of a circular by the Metropolitan As.^ociation of Cycling 
 Clubs, charging contestant with having signed a petition against the 
 bill granting bicycles equal rights with other vehicles on the highways 
 and in the pai'ks. Contestee denied having instigated any such cir- 
 cular, but asserted that the statements atti'ibuted to it were true. 
 Contestant then offered, in writing, to withdraw from the contest if 
 contestee could show or prove the existence of any such petition signed 
 by contestant. Contestee exhibited the petition, signed by contestant 
 eight years before, whereupon contestant formally withdrew from the 
 contest. The committee reported these facts and recommended reso- 
 lutions confirming contestee in his seat. The resolutions were passed 
 b}'^ the House, without division, on January 1.5, 1896. 
 [Report 48, first session Fifty-fourth Congress.] 
 
 (13) Campbell m. Miner. 
 
 Bribery; wrong name on official hallot; supjjression of tentiwrmy; 
 petition to reopen case. Petition denied and 7^ej)ort made for mntextee^ 
 who retained the seat. 
 
 Report by Mr. Johnson. 
 
 Contestee was elected on the face of the returns by a majority of 
 954. Contestant served notice of contest, charging bribery and intimi- 
 dation and alleging that contestee had failed to file the statement of 
 election expenses required bj^the laws of New York. Contestant took 
 some testimony; contestee took none, and no briefs were filed. The 
 committee examined the testimony and found some evidence indicating 
 that there was bribery at one precinct, but not sufficient definitely to 
 establish the fact or to show to what extent it might have affected the 
 result. They therefore reported that contestant had '"whollj^ failed 
 to establish any of the grounds of contest which were set out in his 
 notice in the case." 
 
 Contestant made application to the committee, under oath, for leave 
 to reopen the case, to take further testimonj' on the grounds in the 
 notice, and on the further allegation that he had been deprived of 
 many votes by the arbitrary action of the police commissioners in 
 placing the name of one Simpson on the oflacial ballot as the regular 
 Republican nominee, thus compelling contestant, who claimed to have 
 received the regular Republican nomination, to run as an independent 
 candidate. Simpson received 5,214 votes, all of which contestant 
 claimed would have been cast for himself if his name had been prop- 
 erly placed on the ballot. He alleged that he had been prevented from 
 proving these facts, while taking his testimony, by reason of his arrest 
 for contempt of court, based on certain statements in his own testi- 
 mony in this case. This arrest, he claimed, had intimidated his wit- 
 nesses. The committee said: 
 
 Your committee show to the House that these facts which the contestant asked 
 leave to prove were not stated and set forth as a ground of contest in his notice in 
 the case. They also show that the testimony in the record utterly fails to disclose 
 the truth of contestant's statement that he lost any time by the conduct of contestee's 
 attorneys; but does clearly show that, without any just excuse or reason therefor, he 
 permitted all but five days of the forty days' time allowed him by law in which to 
 take his testimony in the case to expire before he took any evidence whatever; that 
 he was not arrested for contempt until after the time for taking his testimony had 
 expired, and was not held in custody upon said charge except for a few moments, 
 and that his witnesses were in no wise intimidated from testifying; all as is shown 
 by his own evidence now on file in the case. 
 
FIFTY -FOtTRTH OONGRESS. 515 
 
 The committee, waiving the question as to whether the facts which contestant 
 asked permission to prove would, if proven, constitute a vaUd ground of contest, 
 declare that the testimony already taken by him shows that it is very doubtful 
 whether he would be able to establish such facts even if the case were opened up for 
 his benefit. Actuated in the matter by the considerations which have been sub- 
 mitted, the committee overruled the said motion of the contestant, and declined to 
 permit him to take additional testimony. 
 
 The committee also report that on the final hearing of the case before them the 
 contestant urged that the election law of New York under which said election was 
 held was unconstitutional and void, for the reason that the provision requiring the 
 candidate for Representative in Congress to be nominated for the office by a party 
 convention, or petitioned for by a certain per cent of the voters before his name can 
 be placed upon the ticket to be voted for, constitutes an abridgment of the privileges 
 and immunities of citizens of the United States, and is a denial by the State to per- 
 sons within its jurisdiction of the equal protection of the laws, as guaranteed in section 
 1 of Article XIV of the Federal Constitution. For this reason he insisted that the 
 election was a nullity, and that the seat in controversy in this contest should be 
 declared vacant. 
 
 This provision of the New York election law, whose unconstitutionality is urged, 
 is a conspicuous feature of what is known as the Australian ballot system, which sys- 
 tem has been in force in a number of States of the Union for a considerable period 
 of time, and the constitutionality of this feature has never, to the knowledge of your 
 committee, been questioned in the courts. It is to them incredible that it should 
 have gone so long without having been challenged if it is in contravention of the 
 Constitution. If it is really open to this objection a large per cent of the members 
 now holding seats in this body are not entitled to retain the same. The committee 
 themselves entertain no doubt of the constitutionality of the provision, but do not 
 . deem it advisable to prolong this report by giving the arguments in support of their 
 views. 
 
 Resolutions confirming contestee in his seat were recommended, and 
 were passed by the House on January 22, 1896, without division. 
 [Report 106, first session Fifty-fourth Congress.] 
 
 (Itt) Van Horn vs. Taksney. 
 
 Fravd; applicatimi to take additional testimony. Majority report 
 for contestant; minority report to reopen case. Omtestant seated. 
 
 Majority report by Mr. Johnson; second report by Mr. Tayler; 
 minority report by Mr. Maguire. 
 
 It was agreed by all the parties in this case, including contestee, 
 and unanimously reported by the committee, that the existence of a 
 large amount of fraud in four precincts was conclusively established, 
 and that thei'e was not enough evidence in the record to purge these 
 jDolIs of the fraud. If the polls were rejected, contestant would be 
 elected. The majority reported in favor of seating him; the minority 
 reported in favor of reopening the case for taking additional testimony 
 to purge the polls of the fraud, so that the honest votes might be 
 counted, and presented figures to show that there was a probability 
 that contestee would be found still to have a majority' of the honest 
 votes. The fraud had been committed in the interest of certain (-andi- 
 dates for local ofiices, and its relation to the Congressional election 
 seems to have been only incidental. 
 
 The fraud was the result of a consjiiracy put in motion before the 
 election. Gangs of colored men, working on the streets of Kansas 
 City, were taken to. the registration office repeatedly and registered 
 over and over again. The ofiicers of election appointed to represent 
 the Republican party were not chosen from the list presented by the 
 committee of that party; they were mainly unknown or disreputable 
 
516 DIOKST OF CONTESTED ELECTION CASES. 
 
 pcisons, often having only a technical residence acquired for the pur- 
 pose in the i)reoinc,ts where they acted; they were not pronounced 
 Republicans, and were in some cases Democrats. The Republican 
 challengers and witnesses were excluded from the polls in violation of 
 the plain pro\'isions of the law and the direct mancmte of the court. 
 
 In the four precincts discussed in the reports, the fraud was beyond 
 question, and a large number of those who perpetrated it had already 
 been imprisoned or were then under indictment for their connection 
 with it. In each of three precincts the first 200 names on the poll 
 lists were all given as colored persons, and were returned as having 
 voted in alphabetical order. Persons whose names closely followed 
 ■ these 200 testified that they voted early in the morning and were among 
 the first to vote. There was also testimony that many other fraudu- 
 lent names were added to the poll books during the day, and fraudulent 
 ballots placed in the boxes to correspond with them. The vote at all 
 these precincts was returned as being impossibly large, while the tes- 
 timony showed that the actual vote was small or moderate. Persons 
 who testified that they did not vote were returned as voting, and many 
 of those (besides the alphabetical 200) returned as voting were shown 
 to be unknown persons, registered from vacant lots, uninhabited houses, 
 or other impossible places. In the one precinct in which the voting 
 was not alphabetical there was direct evidence that the judges of elec- 
 tion took out during the day a very large number of straight Repub- 
 lican tickets and substituted Democratic tickets, prepared and marked 
 by themselves, for them. 
 
 The committee found all four of these returns (precinct No. 52, Ninth 
 Ward, and precincts Nos. 5, 6, and 7, Second Ward, Kansas City) so 
 tainted with fraud that the returns were worthy of no credence, and 
 as there was no way under the evidence of eliminating the fraud the 
 whole returns were rejected. The fraud was committed in the interest 
 of contestee's party, and contestee had an aggregate plurality of 1,120 
 in these precincts. Rejecting them, contestant had a plurality of 376 
 votes in the district. 
 
 Contestee applied for a reopening of the case, alleging upon informa- 
 tion that an agreement could be shown to have been entered into 
 between certain managers of the campaign for contestant and the per- 
 petrators of these frauds, by reason of which certain of the fraudulent 
 votes were to be counted for contestant in consideration of the exemp- 
 tion of the election officers from attack in a newspaper edited by him. 
 He also alleged that he could show that 100 of the 200 "alphabetical" 
 ballots in one precinct had been "scratched" and counted for Mr. 
 Van Horn. 
 
 The committee refused to reopen the case. The afiidaAit of con- 
 testee was very indefinite. It did not state the names of his inform- 
 ants, or their sources of information, or the parties to the alleged 
 agreement. 
 
 To open up the case for testimony upon statements so indefinite and insufficient as 
 these would certainly lie bad practice and Avould be setting a dangerous precedent. 
 Undoubtedly a stronger showing should lie made by the sitting member, whose term 
 is already half expired, as to the probability of his being able to establish the alleged 
 agreement in order to obtain the delay in the determination of the contest which the 
 granting of his prayer would invohe. 
 
 The application to show the state of the ballots the committee 
 regarded as made "at a very late day." Even if there was no provi- 
 
FIPTY-FOUKTH CONGKESS. 5l7 
 
 sion of the law of Missouri whereby the ballots could be recounted in 
 a Congressional contest, the Federal statute provided such a way. 
 
 The Constitution of the United States, however, provides that each House shall be 
 the judge of the elections, returns, and qualifications of its own members, and to 
 enable the House of Representatives the more readily to exercise this prerogative. 
 Congress passed a statute, prescribing the methods to be observed in contests for a 
 seat therein, under which statute this contest was lieing conducted. The Constitu- 
 tion and this statute, enacted pursuant thereto, are, by the very j^rovisions of the 
 Constitution, the supreme law of the land, and the judges in every State bound 
 thereby, anything in the constitution or the laws of the State to the contrary 
 notwithstanding. 
 
 The committee believed that on his application any competent court could and 
 would have accorded Mr. Tarsney an inspection of these ballots if they were proper 
 evidence to be considered in the case. 
 
 The 100 ballots in question, moreover, were too few to affect the' 
 result, and were, in any case, impeached as evidence I)}' having j^assed 
 through tainted hands and being now in the custodj- of the very official 
 who perpetrated the original registration fraud, as well as bj^ some 
 positive evidence that they had actually been tampered with. 
 
 The ballots, like the returns, are tainted. They have passed through the hands 
 of fraudulent and corrupt officers of election, and thus their credibility and integrity 
 is destroyed. 
 
 This principle is one laid down in all the text-books on the subject, and has found 
 frequent recognition in the determination of contested election cases by the House, 
 some of which authorities have been heretofore cited in this report. Being founded 
 in reason and experience, this principle ought not to be disregarded in this instance. 
 
 The committee therefore recommended resolutions declaring con- 
 testant elected. 
 
 Mr. Tayler presented a report agreeing to the conclusions of the 
 committee on the evidence in the record, but protesting that the 
 application to reopen the case ought to have been granted. 
 
 He could "find no testimony in the case which indicates that the 
 ballots now in the custody of the proper officials are not the identical 
 ballots which were fraudulently created. But, having been fraudu- 
 lently placed in the ballot boxes, they were honestly counted." 
 
 We can thus, with reasonableideiiniteness, appraise the fraud and be relieved from 
 the necessity of invoking the dangerous and mischievous doctrine that a poll, tainted 
 with fraud and not purged, must be entirely disregarded. This drastic method is 
 never to be resorted to except in case of absolute and unavoidable necessity. The 
 disfranchisement of honest voters thereby wrought is too grave a wrong to be per- 
 mitted if, by any possibility, it can be averted. * * * 
 
 I am therefore convinced that, under these circumstances, it was the duty of the 
 committee to take the testimony of the ballots and thereby, if the contestant was 
 honestly elected, to say so with certainty. His title would no longer rest upon con- 
 jecture and inference, and the committee and the House would be forever relieved 
 from the imputation of having acted in a partisan spirit. 
 
 The doctrine of throwing out entire returns by reason of fraud, while tolerable in 
 theory and sometimes essential in practice, is, nevertheless, most vicious and unhappy 
 in its application. 
 
 I doubt if a single instance will be found in a legislative contested election case 
 where a proposition to strike out an entire return, if of the subs|ance of the case, was 
 decided on any other than party lines. 
 
 A principle thus fostered and thus abused is not a principle to be invoked, except 
 where the exigencies of the case absolutely demand it. 
 
 The minority advocated granting the application of contestee to take 
 further testimony. The fraud was conceded, and contestee's returned 
 plurality in the precincts where it occurred was larger than his total 
 plurality in the district. "The question, therefore, whether these 
 precincts shall be purged or rejected from consideration is the vital 
 
518 DIGEST OF CONTESTED ELECTION CASES. 
 
 question in the case." There was no evidence that the ballots had 
 been tampered with since the count, and the whole nature of the fraud 
 was such as to make it improbable that they would be altered, as such 
 alteration could only make them cease to agree with the returns. It 
 would now be possible to separate the fraudulent from the legal vote, 
 and count the latter. Mr. Tarsney could not have procured this evi- 
 dence before, because he could not secure access to the ballots under 
 the laws of Missouri. 
 
 In the report of the majority of the committee it is correctly stated that the Con- 
 stitution of the United States is the supreme law of the land, and that the provision 
 therein that each House of Congress shall be the sole judge of the qualification and 
 election of its own members is binding upon the States, and that no State law can 
 prevent Congress from resorting to any means necessary to the exercise of its consti- 
 tutional right to judge of the qualification and election of its own members; but we 
 do not agree with the majority that any court in the land has power, in aid of that 
 Congressional prerogative, to compel officers of a State, county, or mvmicipality, con- 
 trary to a State law, to exhibit ballots cast at an election held under the laws of such 
 State for local ofiicers and for Representatives in Congress to any officer or commis- 
 sioner other than a duly authorized representative of either of the Houses of Con- 
 gress, and we do not believe that Mr. Tarsney was guilty of any laches in failing to 
 appeal to the courts for the purpose of having the legal custodian of the ballots in 
 question deliver them, or exhibit them, to any notary public, or commissioner, or 
 other officer taking testimony in the contested-election case of A'an Horn against 
 Tarsney, because such application would have been idle and futile. 
 
 Unless it should be shown by the evidence that at least 550 of the 
 fraudulent ballots in the contested precincts were cast for contestee. 
 his majority would not be overcome. 
 
 We think the showing made in support of his application is sufficient to justify this 
 House in believing that there is a reasonable probability that he may be able to show 
 that less than 550 of the fraudulent votes cast in those precincts should be taken from 
 him. This reasonable probability is sufficient to warrant the House in granting the 
 application, if, indeed, the circumstances do not make that course the imperative 
 duty of the House in seeking the ends of justice. 
 
 The minority thei'efore recommended resolutions recommitting the 
 case for the taking of additional testimony. 
 
 The case was fully debated in the House, and the resolutions pre- 
 sented by the minority were lost by a vote of 110 to 163. Thex-esolu- 
 tions presented by the committee were then passed, without division, 
 and, on February 27, 1896, Mr. Van Horn was sworn in. 
 
 [Report 355, parts 1, 2, and 3, first session Fifty-fourth Congress.] 
 
 (15) Coleman vw. Buck. 
 
 Fraud, violence, and intimidation. Report fm^ contestee, >r/i<> retained 
 the seat. 
 
 Report by Mr. Miller. 
 
 Contestee was elected on the face of the returns by a majoritv of 
 7,653. Contestant made many charges against the fairness of the 
 election, summarized by the committee as follows: 
 
 That the Democratic officials had violated the election law in the appointment of 
 election officers, registrars, and other persons; that many legal voters, who would 
 have voted for contestant, were prevented from registering by acts of violence com- 
 mitted by Democrats; that hundreds of Republicans who were entitled to vote and 
 who would have vcited for contestant, were prevented from so doing by intimida- 
 tion and other unlawful means used by Democrats in the interest of the contestee; 
 that by means of murder, arson, false registration, the issuance of thousands of 
 fraudulent regit^tration certificates, ballot-box stuffing, forged returns, and (lestruc- 
 tion of ballots voted by Republicans for contestant, the Democrats, in the interest of 
 
FIFTY-FOUETH CONGKESS. 519 
 
 contestee, inaugurated and maintained before and at the time of said election such a 
 reign of terror, and committed such acts of lawlessness, with the knowledge and 
 consent of the authorities, that no legal or fair election could be or was held in said 
 district. 
 
 The committee found a large part of these charges sustained bj' evi- 
 dence, but could not find that enough votes were shown to be affected 
 to overcome the large returned majority of contestee. They threw 
 out the vote of Jefferson Parish and of the First, Second, and Fifth 
 wards of St. Charles Parish. In New Orleans much fraud and violence 
 was proved, but not enough to justify throwing out all the votes, nor 
 to show that the number of votes affected was suiEcient to change the 
 result of the election. The committee therefore recommended reso- 
 lutions declaring contestee elected, which, on March 12, 1896, were 
 passed by the House without division. 
 
 [Report 758, first session Fifty-fourth Congress.] 
 
 (16) Booze i'.*. Rusk. 
 
 Recount; rejected votes; illegal votes, fraud. Heport for contestee., 
 who retained the seat. 
 
 Report by Mr. Prince. 
 
 The returned majority of contestee was 518. A recount of the l:)al- 
 lots was made, on which contestant gained 131 votes. Forty legal 
 voters who would have voted for him were refused the right to vote 
 on the ground that other persons had already voted on their names. 
 One hundred and sixty-one illegal and fi-audulent votes were cast for 
 contestee. The committee deducted these 332 votes from the returned 
 majority of contestee, but they were less than the whole majority. 
 Contestant also asked that several precincts be thrown out entirely for 
 fraud and fatal irregularities, but the committee found the charges 
 against these precincts disproved by the evidence. They therefore 
 reported resolutions declaring contestee elected, which, on March 18, 
 1896, were passed by the House without division. 
 
 [Report 849, first session Fifty -fourth Congress.] 
 
 (17) Benoit vs. Boatner. 
 
 FIEST CASE. 
 
 Fraud, violence, and intimidation. Majority report to declare seat 
 vacant; minority report fm^ contestee. Seat dedari'd vacant. 
 
 Majority report by Mr. Tayler; minority report by Mr. Bailey. 
 
 On the face of the returns contestee had a majority of 9,526 votes. 
 Contestant charged that this majority was obtained by widespread 
 fraud, violence, and intimidation in ten of the fifteen parishes of the 
 district. The committee found this charge sustained and held that no 
 valid election had taken place. The minority found that in six of the 
 ten parishes in dispute there was not evidence enough to justify throw- 
 ing out any polls, and that in two of the others there were only 9 
 polls to be rejected, leaving only two parishes to be rejected entire. 
 This would still leave contestee a majority of 5,188. If all the polls 
 against which contestant brought any evidence were excluded, con- 
 testee would still have 327 majoi'ity. The minority therefore held 
 that the election was valid and that contestee ■« as elected. 
 
520 DIGEST OV CONTESTEB ELECTION CASIlS. 
 
 The committee discussed the evidence and quoted some of it in 
 regard to each of the contested parishes, showing that there was a gen- 
 eral sentiment among the white minority in the "black parishes" in 
 favor of controlling the elections withoui: reference to the will of the 
 negro majority; that the registration lists were fraudulently padded; 
 that the vote returned, in many cases, was far in excess of the actual 
 vote, and in some cases of the entire registered vote; that there was a 
 great deal of coercion and quiet intimidation of negro voters and some 
 violence, though less of this than formerly, the violence of the past 
 having now made mere threats quite sufficient in most cases; that the 
 returns were quite generally not signed or not sworn to, the election 
 officers who had considered themselves justified in committing fraud 
 often hesitating to swear to it; that the poll books and tally sheets had 
 nearly all disappeared, and no one could be found who knew anything 
 about them; that the officers of election, so far as possible, avoided 
 testifying, going even to the extent of disobeying subpoenas or refus- 
 ing to answer questions, on the ground that it might incriminate them, 
 or by resorting to technical subterfuges under the advice of counsel. 
 
 The committee did not discuss the testimony by polls, but concluded 
 on the whole case that the election was void. 
 
 The minority went over the testimony by parishes and polls. In a 
 large number of cases the evidence was found to be insufficient to sus- 
 tain the charges. Some polls were thrown out because the returns and 
 tally sheets were not sworn to or signed, and some for proved intimi- 
 dation or fraud. One whole parish was rejected because the returned 
 vote was shown to exceed the registered vote and another because no 
 part of any of the returns was sworn to. After making all these 
 aeductions, contestee still had a majority, as above stated, and the 
 minority recommended resolutions declaring him elected. 
 
 The case was very bi'iefly debated in the House, the statement being 
 made that the day of the debate was the last day on which the governor 
 of Louisiana could proclaim a new election on the same day as the 
 general election, and if a new election was to be ordered it was desired 
 to hold it on that day. The resolutions recommended by the minority- 
 were lost by a vote of 59 to 132. The resolution reconmiended by the 
 majority was then passed without division, and on March 20, 1896, 
 the seat was declared vacant. A new election was ordered, which gave 
 rise the next session to another contest (q. v.) between the same 
 parties. 
 
 [Report 867, first session Fifty-fourth Congress.] 
 
 (18) Thompson vs. Shaw. 
 
 Case not made out Heport for contestee, who retained the seat. 
 
 Report by Mr. Weller. 
 
 On the returns as canvassed contestee had a majority of 994. It 
 was conceded that certain returns rejected by the county commission- 
 ers ought to have been canvassed. Counting these, contestee still had 
 a plurality of 877 votes. Charges were made in regard to the elec- 
 tion at various precincts, but the nature of the charges was not stated 
 in the report. The case turned on Cross Creek precinct. If this were 
 rejected, contestant would have a majority of not over 624 votes; if it 
 
FIFTY-FOURTH CONGRESS. 521 
 
 were counted, contestee would have a majority of at least 581. In 
 regard to this precinct the committee said: 
 
 Contestant contends that the whole vote cast at this precinct should be rejei;led 
 for frauds committed and unlawful acts done by the partisans of contestee. 
 
 While the committee believe that there were irregularities in the conduct of paid 
 election, and that perhaps there were illegal votes cast and counted for contestee, 
 yet they do not feel warranted upon the facts proved in disregarding the whole of 
 the votes cast at said precinct at said election. 
 
 The committee therefore recommended resolutions declaring con- 
 tee elected. The House, on May 6, 1896, passed the resolutions with- 
 out division. 
 
 [Report 1635, first session Fifty-fourth Congress.] 
 
 (19) Cheatham vs. Woodard. 
 
 Case not made out. Report fw contestee, 'n^ho retained the seat. 
 
 Report by Mr. Prince. 
 
 According to the returns, Woodard, the Democratic candidate, 
 received 14,^21 votes; Cheatham, Republican, 9,413 votes, and Free- 
 man, Populist, 5,314 votes. Cheatham contested, alleging that the 
 colored voters were in the majority in the district and that the colored 
 vote was solid for him. Neither of these charges, the committee held, 
 was sustained by the evidence. A very bitter factional fight in the 
 Republican party had deprived contestant of much of his party \'ote. 
 It was further alleged by contestant that the election was not conducted 
 fairly, and that the poll holders were ignorant and corrupt and 
 defrauded him. "This allegation," the committee said, "is not main- 
 tained, except in a few instances where the poll holders were shown 
 to be ignorant." 
 
 The resolutions recommended by the committee declaring contestee 
 elected were passed by the House May 14, 1896, without division. 
 
 [Report 1809, first session Fifty-fourth Congress.] 
 
 (20) Mitchell vs. Walsh. 
 
 Bribery. Majority report for contestant., nnnoriiij report for con- 
 testee. Contestant seated. 
 
 According to the returns contestee had a majority of 367 in the 
 district. Outside of the second assembly district contestant had a 
 majority of 1,328, but in this district (the Bowery lodging-house dis- 
 trict of New York City) contestee had a majority of 1,695. Contestant 
 charged, and the committee found, that in this district there was a 
 conspiracy on the part of the Tammany leaders to carry the election 
 by fraud and bribery, and that the conspiracy was carried out. Con- 
 testee was the Tammany candidate. His name was not on the regular 
 Democratic ticket, but was on the Tammany ticket and on Tammany 
 "pasters," which were used in large numbers. 
 
 The committee quoted from the testimony in regard to the methods 
 of bribery used. The Tammany captain in each district was said to 
 have had a place near the voting booth, ostensibly "to prepare bal- 
 lots." He gave out "Tammany pasters." Clerks and proprietors of 
 lodging-houses assisted in the " work." The price of votes (paid after 
 voting) was from %\ to $2. 
 
522 DIGEST OF CONTESTED ELECTION CASES. 
 
 After quoting the testimony of witnesses in regard to these frauds, 
 the committee said: 
 
 Contestee attempted to discredit the testimony of the above witnesses by showing 
 that they had been entertained by contestant and his attorneys, and for this reason 
 are unworthy of belief. 
 
 They were not impeached in any instance, and we believe that, taking into con- 
 sideration the surrounding circumstances, they are entitled to credence. 
 
 Fraud can rarely, if ever, be proved by direct evidence, and the rule is that when- 
 ever a sufficient number of circumstances which point to its existence are clearly 
 established a prima facie case of its existence is made, and if this case is not met 
 with explanation or contradictions it becomes conclusive. 
 
 In this case contestee did not introduce any of the persons accused 
 of fraud to explain his actions. 
 
 Contestee insists that he should only lose those votes where individual instances of 
 bribery are shown. We can not accept this theory of the law when the evidence 
 shows the existence of a conspiracy to corrupt voters by bribery. 
 
 Either all the votes, or all the votes for contestee, in the polls where 
 bi-ibery in his interest was shown should be rejected. The committee 
 did not decide which of these two courses was correct. In one case 
 contestant would have a majority of 362, in the other of 76, and the 
 committee therefore recommended resolutions declaring him elected. 
 
 Contestee objected to all the testimony taken in New York County 
 before William A. Hoar, one of the notaries in the case. Hoar had 
 been a resident of Kings County and a notary public for that county, 
 with the right to officiate in New York County on filing his certificate 
 in that county (which he had done). Before taking the testimony 
 in this case he had become a resident of New Yoi'k County, which, 
 under the law, probably vacated his office. No objection to his com- 
 petency had been entered during the taking of the testimony in chief, 
 but such an objection had been entered durirg the taking of rebuttal 
 testimony. The committee said: 
 
 We are of opinion that the testimony taken before William A. Hoar ought to be 
 considered by the committee and the House, for the reasons following: 
 
 1. Because it is too late for the contestee to be permitted to object on this ground. 
 He knew, or, what is the same in legal effect, he was charged with knowledge of the 
 fact, as to whether Hoar was a notary authorized to administer oaths. He knew that 
 the notary was described in the notice as residing in the Eighth Congressional dis- 
 trict, and in his signatures to the transcript of testimony as notary of Kings County, 
 with certificate filed in New York County. To say the least, he was put upon inc^uiry . 
 
 The contestee is in the same position as if he and the contestant had agreed that 
 the testimony might be taken before a person who was not, by any law, authorized 
 to administer oaths. It is true that such an agreement might not be recognized by 
 the House of Representatives. It might abrogate that, as it might any other agree- 
 ment between parties. But it does not lie in the mouth of either party Mho has, 
 either in fact or constructively, so agreed to object to the validity of testimony so 
 taken. 
 
 2. But we are constrained to put our conclusion on still broader grounds. The 
 House of Representatives, with its broad and, indeed, limitless powers respecting the 
 settlement of contested-election cases, is only desirous of arriving at the truth. 
 While it will not depart from wise and well-settled rules of law, it will not hedge 
 itself about with technical rules which do manifest wrong. 
 
 In this case it is apparent that the parties to the contest, their attorneys, and every 
 witness who was summoned, supposed that Hoar was a notary public, with full 
 power to administer oaths, and that a prosecution for perjury could as certainly be 
 based upon a false statement before him as upon a false statement made on oath in 
 a court of justice. We have therefore considered the evidence. 
 
FIFTY-FOURTH CONGRESS. 523 
 
 The minority were of the opinion that all the testimony taken before 
 Hoar should be excluded. 
 
 We can not assent to the proposition that, under any circumstances, unsworn 
 statements of persons called as witnesses can be substituted for evidence taken under 
 oath duly administered as required by laws governing contested elections. Such a 
 course of procedure, whether agreed to by the parties or not, would reduce the tak 
 ing of testimony in contested election cases to a farce unworthy of a moment's con- 
 sideration in, the determination of an election contest. * * * 
 
 We think the acceptance and consideration of testimony so taken without the 
 sanction of an oath would be an exceedingly dangerous precedent in contested elec- 
 tion cases. The temptation to perjury, exaggeration, and evasion for partisan pur- 
 poses, or through more unworthy motives, is already great enough in such cases 
 without adding the encouragement of the assurance that Congress will accept and 
 consider testimony taken by persons not authorized to administer oaths, in the giv- 
 ing of which the witnesses are assured of their absolute immunity from punishment 
 for perjury. If the contestant and his witnesses, knowing, as stated, that Mr. Hoar 
 was a notary public for Kin^ County, and that he had changed his residence from 
 Kings County to New York County, were ignorant of the legal effect of those facts, 
 it may be a hardship upon him to exclude from consideration the testimony taken 
 on his behalf before Mr. Hoar, but it is a misfortune for which he alone is responsi- 
 ble, and it is a misfortune for which no relief can be given, at this time, without 
 causing a public injury infinitely greater than the private injury which might 
 thereby be avoided. 
 
 Contestant had a remedy for his mistake in taking the testimony in question before 
 an unauthorized person to which he might have resorted after discovering Mr. Hoar's 
 incapacity. 
 
 He might have applied to the House or to this committee for leave to retake the 
 testimony before an authorized person, and such a request, if made in reasonable time 
 au<l in apparent good faith, would certainly have been granted. 
 
 However, since much of the report of the majority was based on 
 this testimony, the minority discussed it with the rest, calling atten- 
 tion, however, in each case, to the fact of its inadmissibilitj'. 
 
 On the issue of fact the minority said: 
 
 It is not claimed that the evidence shows a sufficient number of votes procured to 
 be cast for contestee by bribery to overcome his majority as shown by the returns, 
 and to show that a majority of the lawful votes cast were really cast for contestant; 
 but it is claimed that, as a legal result of proof that there was in those districts a gen- 
 eral conspiracy to bribe voters in the interest of the contestee and other nominees on 
 the Democratic ticket, and that, pursuant to that conspiracy, some voters were bribed 
 to vote for contestee, and did so cast their ballots as a result of such bribery, the entire 
 vote of each of the precincts in which such bribery is shown to have existed at all 
 should be thrown out and eliminated from the count. The result of this rule applied 
 by the majority of the committee to the alleged facts would give to contestant a plu- 
 rality of 76 votes in the entire Congressional district. We deny the sufficiency of the 
 evidence to support any of these findings. 
 
 The minority discussed the testimony in detail, showing its indefinite 
 and unsatisfactory nature, as well as the evident low character of most 
 of the witnesses, and the suspicious action of contestant's attorney in 
 sending many of these witnesses to be kept at his expense in Harlem, 
 N. Y., and New London, Conn., and in supplying them with liquor in 
 his office. 
 
 If a tithe of the money that seems to have been expended in herding and boarding 
 and lodging and clothing and intoxicating these witnesses had been expended in pro- 
 curing the services of reputable persons to watch the election and the count on elec- 
 tion day in those districts, as seems to have been done by the Good Government 
 Club in some of the districts, reliable testimony from credible witnesses might have 
 been produced to establish the truth respecting the matters in issue. It is contestant' s 
 misfortune that he has not been able to produce testimony worthy of credit, just as 
 it would be liis misfortune if no witnesses at all could have been procured by him to 
 testify to what he believes to haye been the facts. 
 
524 DIGEST OF CONTESTED ELECTION CASES. 
 
 Ill one election district the minority found enough evidence to estab- 
 lish a prima facie showing of bribei'y committed by three named per- 
 sons in the interest of the Democratic ticket, of which contestee may 
 ha^'o, reaped the advantage. At least one of these persons should have 
 been called as awitness to rebut the presumption of fraud, but even if 
 this poll were rejected contestee would still have a majority. In the 
 other polls the minority found no testimony to support the conclusions 
 of the committee. 
 
 In the House, after debate, the substitute resolutions proposed by 
 the minority were lost, without division, and the resolutions proposed 
 l>y the committee were passed by a vote of 162 to S'.K Mr. Mitchell 
 was then, on June 2, 1896, sworn in. 
 
 [Report 1849, parts 1 and 2, first session Fifty -fourth Congress.] 
 
 (21) Martin v.-i. Lockhakt.' 
 
 Fravxi; wrong fnl rejection of votes; hallots in vrroru/ioxes. 21/ijoriti/ 
 report for contestant; minority report for contefifen. Contef<tarit -seated. 
 
 Majority report by Mr. Strode; minority report by ]Nir. Bailej-. 
 On the face of the returns contestee had a majority of 444 votes. 
 Contestant made charges summarized by the committee as follows: 
 
 That the contestant, Charles H. Martin, was unlawfully deprived of a large num- 
 ber of votes to which he was entitled; that these votes were fraudulently rejected 
 upon the pretense of irregularities in the registration; that the voters were not in 
 fault with regard to such irregularities, but that they were committed by the election 
 officers; that the votes of a large number of voters who would have voted for con- 
 testant were rejected "by the poll holders on frivolous challenges; that the poll hold- 
 ers in many voting precincts purposely placed votes cast for contestant in the wrong 
 boxes and afterwards rejected them because they were deposited in the wrong boxes; 
 that poll holders in many voting precincts refused to put the ballots of voters in the 
 ballot boxes, and that many voters who could not read and who cast their votes for 
 contestant were coriipelled to deposit their own ballots and by liiistake deposited 
 them in the wrong boxes, arid that they were rejected by the poll holders, when 
 counting the vote, because they were found in the wrong boxes; that ballots for 
 contestant were rejected because they were not printed, the regularly printed tickets 
 of contestant having been stolen; that boxes were not used in some of the precincts 
 as repositories for the ballots, as the law required; that the ballot boxes in some of 
 the precincts were not labeled with roman letters, as the law required; that poll 
 holders in some of the precincts purposely changed the positions of ballot boxes so 
 as to disarrange them in their order, in order to entrap unlettered Republicans and 
 Populists who desired to vote for contestant into putting their tickets in the wrong 
 boxes; that at one voting place the election officers refused to count the ballots or 
 make any returns of the election, where the contestant claims to have received a 
 large majority of the votes cast; that many who were unlawful electors cast their 
 ballots and they were counted for contestee. 
 
 In one precinct 70 voters, who testified that they tendered ballots 
 for contestant, were rejected because of alleged irregularities in their 
 registration entries. The irregularity in many of the cases was the 
 absence of any entry on the registration book under the heading 
 "Township or county from whence removed," though the other entries 
 in regard to some of them showed that they were born in the township 
 where they were registered and they had lived there all their lives. 
 Others were rejected for other immaterial irregularities in the entries 
 for which the registering oflBcers were responsible. The committee 
 
 ' The title of this case was printed by mistake at the head of the majority report 
 as "James A. Lockhart vs. Charles H. Martin," the names of contestant and con- 
 testee being transposed. 
 
FIFTY-FOUKTH CONGRESS. 525 
 
 counted all of these 70 votes. The minority said: "While there may 
 be ground of dispute as to all of these, there certainly should be none 
 as to 8 of them, who, under the registration laws of the State, were 
 clearly not entitled to vote," 1 of them not being registered, and 
 the irregularities in the other 7 cases being such as the supreme court 
 had declared fatal. 
 
 In another precinct very many votes were rejected for similar 
 irregularities, placed in the registration book by the deliberate policy 
 of the registering officers to write down the answers given by ignorant 
 applicants just as they gave them, though the facts stated were suffi- 
 cient to enable the clerks, of their own knowledge, to make the entries 
 in correct form. There was also intimidation at this precinct, and 
 some of the other frauds described in the other precincts, affecting an 
 unascertainable number of votes. The committee threw out the pre- 
 cinct. The minority counted it, except a few votes, claiming that the 
 irregularities were the fault of the voters and that the intimidation 
 consisted of groundless rumors. 
 
 There were 6 ballot boxes at each of the polls, and each voter was 
 required to vote 6 tickets. The boxes were required to be labeled in 
 plain roman letters, and the vote was required to "be put into the 
 proper box or boxes by said voter, or by the judges at the request of the 
 voter." A grea,t many "Fusionist" (Republican and Populist) votes, 
 but no Democratic ones, were found in the wrong boxes. The Repub- 
 lican or Populist poll holders, where any were appointed, were put in 
 charge of the "constable's box" (there being only one candidate for 
 constable), and the other election officers in charge of the other boxes 
 refused to deposit ballots for voters or were alleged to have deposited 
 them in the wrong boxes. The committee counted the votes, where 
 there was proof of them, or threw out the whole poll where the fraud 
 was such as to vitiate the returns and the true vote was not otherwise 
 ascertainable. The minority held that votes found in wrong boxes 
 should not be counted, arguing that otherwise it would be possible for 
 a voter to cast 6 votes for one candidate for one office by placing a 
 vote for him in each box, and asserting that this was, in fact, done in 
 one precinct. 
 
 In one precinct all the printed tickets for contestant had been stolen 
 and written ballots were used. The committee unanimously counted 
 these. 
 
 In another case the tally sheet was kept by an unsworn outsider 
 and was the only count of the vote made. The tally keeper did not 
 testify, and two witnesses swore that they watched the tally and that it 
 was 16 votes moi'e than the returns showed. The majority counted 
 and the minority did not count these votes. 
 
 In another precinct a large number of tickets were tendered to the 
 judges, who refused to deposit them in the boxes unless they were 
 handed in 1 at a time. . The voters refused to separate their tickets, 
 and placed them on the table and left. There were other wrongs which 
 made it impossible for the correct vote of the precinct to be deter- 
 mined, and the committee threw it out. The minority held that the 
 voters should have complied with the not unreasonable request to 
 separate their ballots and hand them in 1 at a time. 
 
 In another district the election officers refused to count the vote, 
 alleging threats and violent actions on the pai-t of contestant's friends 
 to force them to leave the building where the election was conducted 
 
52(5 DIGEST OF CONTJESTED ELECTION CASES. 
 
 to make the count. The committee reported the facts, but made no 
 count of the votes. 
 
 Under the findings of the majority contestant had a majority of 
 330 votes, and they recommended resolutions declaring him elected, 
 
 Under the findings of the minority contestee still had a majority 
 of 256 votes, and they recommended a resolution declaring him elected. 
 
 The case was fully debated in the House. The resolution presented 
 by the minority was lost by a vote of 67 to 156. A motion to recom- 
 niit was lost by a vote of 51 to 149. The resolutions recommended 
 by the committee were then passed by a vote (on division) of 113 to 
 5, and, on June 5, 1896, Mr. Martin was sworn in. 
 
 [Eeport 3002, parts 1 and 2, first session Fifty-fourth Congress.] 
 
 (22) BeNOIT Vfl. BOATNER. 
 (second case.) 
 
 Fraud ^ violence^ and intimidation. Repart for contestee, wha reta Ined 
 the seat. 
 
 Report by Mr. Johnson. 
 
 As the result of a contest between the same parties the seat from this 
 district had been declared vacant at the previous session (see first case 
 of Benoit vs. Boatner, above) and a special election had been called to 
 fill the vacancy. At this election Boatner was returned as elected bj- 
 a majority of 4,568. Benoit contested, charging wholesale frauds, 
 violence, and intimidation, of the same character as at the previous 
 election. The committee found that the charges were sustained to a 
 large extent, but not enough to overcome the returned majority of 
 contestee or to make the whole election invalid. 
 
 The committee called attention to the fact that contestant carried 
 the " white" or hill parishes, and that contestee, the Democratic can- 
 didate, obtained his greatest majorities in the river parishes, where 
 the colored voters were overwhelmingly in the majority. In general 
 the returns showed that contestant's strength was greatest in the white 
 neighborhoods and contestee's was greatest in black neighborhoods. 
 The election in the former neighborhoods was usually fair; in the lat- 
 ter fraud and intimidation were generally chai'ged. 
 
 Going over the testimony by polls and parishes, the committee found 
 that the vote of one parish should be changed from 758 to 64 for con- 
 testee, and that the vote of two parishes should be rejected. This, 
 however, would still leave a majority of 802 for contestee. 
 
 While the evidence establishes the fact that flagrant frauds were perpetrated in all 
 of Tensas Parish, and in a portion of Catahoula Parish, and that intimidation pre- 
 vailed generally throughout the parish of Ouachita, still the committee do not feel 
 justified in recommending that the election be held void and the seat declared vacant, 
 for the reason that these three parishes constitute only one-flfth of the total parishes 
 of the district, and their entire rejected vote does not amount to one-third of the vote 
 cast therein at the election. 
 
 The committee are not sure that the fraud and intimidation were so extensive and 
 general throughout the district as to render it certain that there was not a free and 
 fair expression by the great body of the electors, however strongly they may suspect 
 this to have been the case. 
 
 Resolutions declaring contestee elected were therefore recommended. 
 On the general question of intimidation the committee said: 
 
 In passing upon this question of intimidation the committee have had in mind cer- 
 tain propositions which seemed to them to be sound, and in the light of which they 
 have reached the conclusion above announced. 
 
FIFTY-FOUBTH CONGRESS. ■ 527 
 
 They recognized the fact that coercive measures do not operate alike upon all 
 voters. TJhat which would have no effect whatever upon one class might, neverthe- 
 less, exert an irresistible influence upon another class. 
 
 It is therefore believed that in determining whether or not intimidation exists in 
 any case, due regard should always be had to the mental and physical organization 
 of the particular electors upon whom the wrong is charged to have been inflicted, 
 their relation to the alleged wrongdoers, their condition of dependence or independ- 
 ence, and,'indeed, to their whole environment as well as to the character and dis- 
 jiositionofthewrongdoersthemselves. Noris it, in the opinion of thecomraittee, either 
 a logical or a just doctrine that the oppressive acts which will avoid an election must 
 necessarily be of such a character as to overpower the will of voters of reasonable 
 courage and intelligence. Such a principle as this would, in its practical operations, 
 result" in the disfranchisement of the weak and the ignorant electors, who should 
 ever be the object of the law's solicitude, and in the arrogation of political power 
 into the hands of the electors who are strong and well informed. 
 
 It is evident, too, that physical violence against the person of the elector is notthe 
 pole criterion by which the existence or nonexistence of intimidation is to be deter- 
 mined, since some electors might be beaten without being at all terrorized, while other 
 electors might be put in great fear without the striking of a single blow. Nor do the 
 committee believe that in passing upon the question as to whether intimidation pre- 
 vailed the examination should be limited to the unlawful acts committed against the 
 voters at the very time of the election in contest. It is often the case that preceding 
 occurrences, although somewhat remote in point of time, give great significance and 
 momentum to recent acts of oppression and thus become very proper subjects for 
 examination and consideration.- 
 
 On January 14, 1897, the Clerk of the House addressed a letter to 
 the Speaker calling attention to the fact, that the usual course of filing 
 briefs, etc., under the general law would carry the preliminary stages 
 of this case beyond the date of adjournment. The case was there- 
 fore referred to the committee at once, and on January 16 a resolu- 
 tion was passed instructing the committee to go on with the case. 
 The report of the committee was made on February 6, Mr. Bailey 
 •stating in the House that he agreed to the conclusions, but that he 
 might wish to put in a minority report. No such report appears, 
 however, to have been filed. 
 
 On February 15, 1897, the resolutions recommended were passed by 
 the House without division. 
 
 [Report 2808, second session Fifty-fourth Congress. ] 
 
 (23) Beattie vs. Price. 
 
 Fraud, violence, and intimidation. Majority report for contestee; 
 minority report to declare seat vacant. Contestee retained the seat. 
 
 Majority report by Mr. Tayler; minority report by Mr. Johnson. 
 
 Contestee was returned as elected by a majority of 5,766. Contest- 
 ant charged fraud, violence, and intimidation, which resulted in a 
 practical disfranchisement of the colored voters of the district, who 
 were said to be adherents of contestant. The committe found that the 
 colored voters were not, in general, supporters of contestant, and that 
 the fraud and intimidation shown were not sufficient to overcome the 
 returned majority of contestee or to invalidate the election. 
 
 Contestant was the nominee of a convention of white men, mostly 
 former Democrats, calling themselves " New Republicans," who under- 
 took to organize a white Republican party in Louisiana. The position 
 of the new party on the race question was thus stated by the chairman 
 of the convention: 
 
 That we had gone'into this for the purpose of organizing a white man's Republican 
 party in the State of Louisiana; that we proposed that the policy of the party lately 
 
528 DIGEST OF CONTESTED ELECTION OASES. 
 
 organized should be dominated by white men; that this party would be controlled 
 by white men, and that, while we did not reject the vote of any American citizen, 
 white or black, the negro must recognize that the white men would dominate and 
 control, and that he could follow and we would lead. 
 
 Commenting on this situation, the committee report used the fol 
 lowing language: 
 
 In view of these facts, it is difficult to understand how any considerable number of 
 such voters were disfranchised. It is inconceivable that any considerable number of 
 such \oters could have any desire to vote for the contestant. It is quite true that he 
 ran on the Eepublican ticket and that the negro's loyalty to the Republican ticket is 
 beyond question; but whatever incapacity may be charged against the negro of Lou- 
 isiana, however he may incline to follow the Republican banner wherever it leads, 
 he has not yet fallen to that depth of pusilanimous ignorance and stupidity where he 
 will voluntarily indorse a party whose battle cry is white supremacy, however meri- 
 torious may be the other principles to which it adheres. The predicate of the con- 
 testant's claim is the suppression of the negro vote; but the negro vote in the cam- 
 paign of 1894 was not his, and by no stretch of imagination can be conceived to have 
 been his. The negro might possibly support the Republican ticket and a Republican 
 platform in which the question of the negro's civil and political rights were relegated 
 to the background, but we submit that it is impossible that he could support a Re- 
 publican ticket standing on a platform which affirmatively declared, in the language 
 of the chairman of the committee of that kind of a Republican party, as follows: 
 [Quoting the statement above.] 
 
 On the question of fraud and intimidation, the committee repeated 
 the statement of the law quoted in the case of Benoit vs. Boatner, as 
 follows: 
 
 If fraud, violence, and intimidation have been so extensive and general as to ren- 
 der it certain that there was no free and fair expression by the great body of the elec- 
 tors, then the election must be set aside, notwithstanding the fact that in some of the 
 precincts and parishes there was a peaceable and fair election. 
 
 The evidence was not sufficient to bring this case under the rule. 
 
 There is nothing in this case to justify the claim that there was "no free and fair 
 expression by the great body of the electors." 
 
 So far as the testimony shows, there was a "peaceable and fair election" in not 
 only " some of the precincts and parishes," but in most of them. 
 
 There are 166 polling places in the district, and as to more than three-fourths of 
 them there is not a syllable of testimony showing fraud, violence, or intimidation. 
 
 There was violence in some parts of the district, and two murder.s 
 were committed just before the election, one at least of which appeared 
 to have been political. But the number of votes affected was in any 
 case too small to affect the result. 
 
 Messrs. Johnson, Long, and Strode signed a minority report, hold- 
 ing that the election should be declared void. They said: 
 
 We are unable to agree with the committee-in their view of this case. 
 
 The reading of the report naturally leaves the impression that the white Republi- 
 cans of the district spurned the colored voters with contempt and made no effort 
 whatever to secure their votes, and that this conduct was resented by the colored 
 voters so strongly that they had no desire to vote for Beattie, and, for this reason, 
 did not do so. 
 
 We have read the evidence with great care, and we deny that it warrants any such 
 conclusion. Upon the contrary, it shows clearly that, while there was manifested 
 by the white Republicans a determined disposition to lead in the canvass, and to 
 e-ftablish a new Republican organization committed to the doctrine of white suprem- 
 acy and a protective tariff, yet, with rare exceptions, they recognized the right of 
 the colored electors to vote, and made earnest efforts in many parts of the district 
 to secure their suffrages. 
 
 The evidence shows, too, beyond question that the colored electors were very 
 generally desirous of voting for Beattie. 
 
 We particularly dissent from the statement made in the report of the committee 
 that "There is nothing in this case to justify the claim that there was no free and 
 fair expression by the great body of the electors. So far as the testimony shows, 
 
FIFTY-FOURTH OONGKEBS. 529 
 
 there was a peaceable and fair election in not only some of the precincts and par- 
 ishes, but in most of them." 
 
 With all deference to the committee, we insist that this declaration is incorrect. 
 
 In our opinion the record discloses Avidespread intimidation of the colored voters 
 by the supporters of Price-^intimidation practiced in a majority of the parishes of 
 the district — the effect of which was to deter great numbers of them from attending 
 the election and casting their ballots for Beattie. 
 
 For instance, the killing of Tall^ Whitehurst, a prominent colored Eepublican,. 
 and a supporter of Beattie, who resided in the parish of Lafourche, is clearly shown 
 by the evidence to have been a cold-blooded and premeditated murder, perpetrated 
 by some of the white friends and supporters of Price, a few days before the election, 
 solely for political purposes, and to intimidate the colored voters. 
 
 • It appears that this murder had the desired effect, not only in Lafourche, but also 
 in one or two of the adjoining parishes. 
 
 We concur in the opinion of the committee that Beattie is not entitled to be seated, 
 but disagree with their conclusion that Price is entitled to the seat. 
 
 We are convinced that fraud and intimidation prevailed so extensively and gen- 
 erally throughout the district as to prevent a free and fair expression by the great 
 body of the electors, and we believe, therefore, that the election should be declared 
 void and the seat left vacant. 
 
 There was no debate in the House, and the resolutions presented by 
 the majority were passed without division. 
 
 [Report 2812, second session Fifty-fourth Congress.] 
 
 (24) Davis vs. Culberson. 
 Case abandoned. Gontefiiee coufiruied in seat. 
 
 Report by Mr. McCall. 
 
 Contestant served notice of contest, but appears to have taken no 
 further steps. The committee recommended resolutions declaring con- 
 testee elected, which, on January 30, 1896, passed the House without 
 division. 
 
 [Report ISO, first session Fifty-fourth Congress.] 
 
 (25) Rosenthal vs. Crowley. 
 
 Delayed' and irregular returns. Report for contestee. Contestee 
 ■retained the seat. 
 
 Reports by Mr. Jenkins. 
 
 On the face of the returns as canvassed contestee had a majority of 
 1,303. The county canvassers in one county did not canvass certain 
 returns, which contestant claimed should be counted, and in anothei- 
 county canvassed returns which contestant claimed should not have 
 been counted. Counting the I'eturns in question from the former 
 county and excluding those of the latter would give contestant a major- 
 ity of 120, but the committee reported that part of the rejected pre- 
 cincts in the one county were excluded on the same ground as that on 
 which contestant now asked that the precincts from the second county 
 should be excluded — that the returns were not filed with the county 
 commissioners within the legal time. Contestee would be elected if 
 the rule were applied either way to both counties alike, and the com- 
 mittee therefore recommended resolutions declaring him elected. 
 
 Contestant had not included all the precincts asked to be considered 
 in his notice of contest, and applied for leave to amend the notice so as 
 to cover them, but as the committee had considered all the evidence 
 as if the notice had covered it, and had still found contestant's case not 
 made out, they reported adversely the resolution to amend. 
 
 H. Doc. 610 34 
 
530 DIGEST OF CONTESTED ELECTION CASES. 
 
 The resolution.s recommended were passed by the House on January 
 31, 1896, without division. 
 
 [Reports 177 and 197, first session Fifty-fourth Congress.] 
 
 (26) MooKMAN vs. Latimer. 
 
 Hejected votes. Report for contestee. Contested retained the seat. 
 
 Report by Mr. BelJ. 
 
 In the whole district contestee received, according to the returns, 
 5,778 votes, contestant 985, and another candidate 3-1:2 — a plurality for 
 contestee of 4,793 votes. Contestant claimed that all the ballots of 
 contestee were invalid, and also that from 6,000 to 7,000 Republican 
 voters were refused the right to vote because they did not have regis- 
 tration certificates, as was required by the laws of South Carolina, 
 which laws, he contended, were unconstitutional, because in conflict 
 with the Constitution of the United States and of South Carolina. He 
 claimed also that a number of properly registered voters were refused 
 the right to vote by the election officers on various pretexts. 
 
 All the ballots voted for contestee were printed " Representative in 
 Congress, Third district, A. C. Latimer," and contestant claimed that 
 they were deficient in that they did not specify that thej' were voted 
 for a candidate for the Third "district of the State of South Carolina 
 nor for a Representative to the Fifty-fourth Congress. The committee, 
 referring to the case of Blair vs. Barrett, in which a ballot headed "For 
 Congress, Francis F. Blair," had been held to Ije sufficient, expressed 
 the opinion that the ballots in this case were clearly sufficient and had 
 been properly counted for contestee. 
 
 Adopting the most favorable construction on all the other issues, the 
 evidence of contestant still failed to overcome the returned majority of 
 contestee. Supposing that the registration law were unconstitutional, 
 that all the persons rejected had a right to vote, and that they would 
 all have voted for contestant, the number was still 215 short of the 
 returned majoritj' of contestee. Even these figures would require the 
 support of contestant's claims at several precincts where the evidence 
 was wholly insufficient to establish anything. The committee there- 
 fore recommended resolutions declaring contestee elected, which, on 
 April 15, 1896, were passed by the House without division. 
 
 [Report 626, first session Fifty-fourth Congress.] 
 
 (27) Johnston vs. Stokes. 
 
 Rejected votes. Majority report for eontextee; repiort hy Jfr. JfcCatl 
 to declare seat oacant; m'mority report for contesta/it. Seat declared 
 vacant. 
 
 Majority report T)y Mr. Jenkins; second report by Mr. McC-all; 
 minority report by Mr. Overstreet. 
 
 On the face of the returns as canvassed contestee had a plurality of 
 4,702 votes. Counting some returns not canvassed and correcting 
 other minor errors, this plurality would be reduced, according to the 
 majority report, to 4,304, or, according to the minority report, to 4,275. 
 The case turned on a large number of rejected votes refused by the 
 officers of election chiefly on the ground of nonregistration. It was 
 claimed that there was evidence showing by name 7,336 of these votes. 
 
FIFT3f -FOURTH CONGKESS. 531 
 
 much more than enough to overcome the returned plurality of con- 
 testee. Five members of the committee held that, under the evidence, 
 contestee was elected; Mr. McCall held that neitljer party was elected, 
 and Messrs. Overstreet, Walker, and Thomas held that contestant was 
 elected. The House agreed with Mr. McCall. 
 
 C'ontestant claimed that the election law of South Carolina was uncon- 
 stitutional, being in violation both of the Constitution of the United 
 States and of the State of South Carolina. The minority quoted 
 authorities on this point. The majority simply said: 
 
 The contestant insists that the registration law of South Carolina, under which this 
 election was held, is unconstitutional, being in violation of the constitution of that State 
 and of the Constitution of the United States. 
 
 The committee do not agree with the contestant as to the latter claim, and while 
 there is a difference of opinion as to the extent of its unconstitutionality, the com- 
 mittee agree that a part of the law is unconstitutional, being in violation of the con- 
 stitution of the State of South Carolina. But the committee find that the election 
 was held throughout the State on the basis of such registration, the electors acquiesced 
 in and conformed to the law, and the committee, being unable to find from the evi- 
 dence that electors sufficient, in number to change the result were prevented from 
 voting by reason of the registration law, hold the election valid. 
 
 The brief report of Mr. McCall discussing this point, and also the 
 issue of fact from the point of view finally adopted by the House is, 
 in full, as follows: 
 
 I concur in the conclusion of the majority of the committee that the contestant was 
 not elected. The testimony, in my opinion, does not show such a tender of \otes on 
 the part of the excluded voters, such as the authorities require, as will justify the 
 counting of a sufficient number of them to overcome the adverse plurality. But while 
 the testimony is not sufficient for such a purpose, it does show a wholesale exclusion 
 of voters and an unfair application of the registration law. 
 
 The law only provides one registration place in each county, and only one day for 
 registration each month from December to June, inclusive. Although the constitu- 
 tion provides that a male person otherwise qualified shall have the right to vote who 
 has resided in the precinct sixty days before the election, the registration law, in 
 fact, denied him registration, and, consequently, the right to vote unless he had 
 resided in the precinct on the 1st day of July preceding the election. This provi- 
 sion is clearly repugnant to the constitution of South Carolina, which, under the 
 pretense of regulating suffrage, imposes a new qualification upon it and is, therefore, 
 unconstitutional. I may add that the chief justice of South Carolina and the judge 
 of the United States court for that circuit each rendered an opinion that the law was 
 unconstitutional, and although their associates held in each of the cases presented 
 that the court did not have jurisdiction, that fact does not detract from the weight 
 of the opinions. 
 
 The testimony shows that many voters, some of them coming 30 or 40 miles, 
 appeared regularly at the places of registration from month to month, and were 
 denied registration by means of a systematic obstruction. It shows further that 
 many thousand men who had the constitutional qualification, but were not regis- 
 tered, and who therefore had the right to vote if the registration laws were unconsti- 
 tutional, expressed their desire to vote by going to the polls. Doubtless many 
 thousands more unregistered voters remained at home who would have come had 
 they not known that a rule requiring registration certificates was in force and that 
 they would be excluded if they came. 
 
 "If the officers conducting an election adopt and enforce an erroneous rule as to 
 the qualification of voters which prevents certain legal voters who offer to vote from 
 giving in their votes, and being made known prevents other legal voters similarly 
 situated from offering to vote, the election may be set aside, especially if it appear 
 that such votes if offered and received would have changed, or rendered doubtful, 
 the result. After a decision has been made by the election officers affecting the right 
 of a class of voters to vote and that decision becomes known, it is not necessary that 
 every voter belonging to such class should offer his vote and have it formally rejected. ' ' 
 (McCreary on Elections, third edition, section 241; Scranton borough election case, 
 Brightly's Election Cases, 455.), 
 
532 DIGEST OF CONTESTED ELECTION CASES. 
 
 The colored race is enormously in the majority in this district, and it appears that 
 as a rule the voters of that race in that district were Republicans. Believing that 
 the registration law of South Carolina was unconstitutional, I am constrained to find 
 from the evidence in this case that if said law had not been applied at all, or even 
 fairly applied, the result would probably have been different, and I am therefore not 
 able to give my assent to the conclusions of the majority of my colleagues that the 
 contestee was elected. 
 
 The minority referred to the case of Miller vs. Elliott in the Fifty- 
 first Congress, in which this law was declared unconstitutional, and 
 also to the cases of Mills vs. Green (67 Federal Reporter, 818), and of 
 Butler vs. Ellerbe and Bates (22 S. E. Reports, 425, 437), mentioned 
 by Mr. McCall above, quoting from the opinion in the former case. 
 
 All the committee agreed that lawful votes, lawfully tendered and 
 unlawfully refused, should be counted on sufficient proof being made. 
 The majority said: 
 
 It has been held that lawful votes tendered but not received can not oe made 
 available by either party. (State ex rel. Spence, 13 Ala., 805; Webster?.?. Byrnes, 
 34 Cal., 273; Hart to. Harvey, 19 How. Pr., 245; Newcumi)«. Kirttey, 13 B. Munroe,. 
 Ky., 515; Biddle and Richard vg. Wing, first session Nineteenth Congress.) 
 
 No doubt it is the.safer and better rule, when the evidence will warrant it, and as 
 this House has done in many instances since the Nineteenth Congress, to count law- 
 ful votes, lawfully tendered and unlawfully refused, when the number is sufficient to 
 change the result and it is known for what candidate the elector intended to vote. 
 But before the vote can be counted, it ought to appear by competent evidence that 
 qualified electors, sufficient in number to change the result, had lawfully tendered 
 their votes and were unlawfully rejected, and for whom the rejected electors would 
 have voted if they had been permitted to vote. 
 
 But the majority held that the declarations of the voters could not 
 be received to establish these facts, and that in most of the cases in 
 the present contest even the declarations of the voters as a part of the 
 res gestae were not established by evidence. They said: 
 
 If the declaration of the elector who was denied the right to vote can not be 
 received, certainly the headings of the petition can not be admitted as evidence for 
 a declaration. 
 
 No doubt a few votes can be counted, but not enough to make mention of; but 
 independent of that tliere is no evidence to show declarations of electors as to their 
 qualifications, intentions, or efforts to vote. 
 
 It is elementary that hearsajf evidence is not admissible in election cases. The 
 same rules of law apply in election cases as in all other cases, and while the power 
 of the House is very great in election cases, yet its actions should be governed by 
 law and evidence. It is not only just, but safe. 
 
 If the House, uninfluenced by partisan feeling, decide election cases according to 
 the established principles of law and rules of evidence, it will come nearer doing 
 exact and equal justice; and it will be establishing a dangerous precedent to admit 
 what is offered in this case to impeach the title to a seat in this House. 
 
 It was argued upon the part of the contestant that these lists, etc. , might be received 
 as a part of the res gest;e. It certainly is no part of the res gestae, for anything said 
 or done after the vote was rejected and the elector had gone away frorn the polls 
 would have no connection whatever with the principal fact, which in this case was 
 what was said and done by the elector at the polls when offering to vote. But even 
 this position would fail from the fact that no declarations were made, if correct as a 
 proposition of law. 
 
 Owing to the large number of rejected votes in question, contestant 
 attempted to sho^v their names and number by the testimony of list 
 keepers, who were stationed at the polls, took the signatures or wrote 
 the names :it the recju(>st of the voters to a petition addressed to the 
 House of Representatives, reciting that the petitioners were lawful 
 voters who attended at the election, undertook to vote, and were 
 refused, and that they would, if permitted, have voted for contestant. 
 
FIPTY-FOUETH CONGRESS. 533 
 
 The majority claimed that the actual testimony in most cases fell 
 short in one or more respects of this description." They said: 
 
 This so-called testimony is further weakened by the fact that it can not even l)e 
 called hearsay testimony. There are 1,820 so-called votes where the witness through 
 whom it is sought to count the same did not keep the lists, but in each case testificH 
 that some one else, not called, kept the list. There are also 1,221 votes where the 
 witness kept the lists in part only, the other list keepers not being called; 877 votes 
 are not on original lists, but on copies, and even if the original would be competent 
 evidence, the copies are not made evidence. 
 
 There are 4,554 votes, by actual count, where the lists were not offered in evidence 
 and made part of the deposition according to any practice. This shows the danger 
 of not being governed by rules of evidence, and to sustain the claim of the contcHt- 
 aht in this case ■jvould be laying down a more dangerous precedent than was ever 
 established by this House. 
 
 The minority argued elaborately in favor of the admissibility of this 
 class of "list evidence," under circumstances which render the resort 
 to better evidence impracticable, and quoted many authorities in sup- 
 port of this contention. They said: 
 
 No doubt it is true, as a general proposition, that the party offering evidence is 
 required to produce the best evidence of which the case in its nature is susceptible, 
 but it will be observed that the nature of the case is to be considered. Here a class 
 of men numbering thousands was denied the right to vote because of the nature, as 
 well as the administration, of the registration law of South Carolina. To have exam- 
 ined each of these witnesses concerning each and all of the facts establishing his right 
 to registration and to vote, proving the incidents of the attempt or failure to exercise 
 the right of suffrage and subjecting the witnesses to lengthy cross-examinations by 
 contestee's attorneys, would have required more time than the law grants for the 
 taking of testimony and have caused a miscarriage of justice. And so it became 
 incumbent upon the contestant to offer the best evidence that he could command 
 within the limitations and conditions existing,, and he did that by furnishing the 
 written declarations of these men as to their qualifications, efforts, and purposes, 
 supplemented by the testimony of men who knew them, to the effect that they were 
 entitled to but were denied the right of suffrage. AVhere there is no substitution of 
 evidence, but only a selection of weaker instead of stronger proofs, or an omission to 
 supply all the proofs capable of being produced, the rule concerning the produc'tinn 
 of the best evidence is not infringed. (1 Greenleaf on Evidence, 14 ed., sec. 82.) 
 We submit that the contestant's evidence was a selection of weaker instead of stronger 
 proofs, and for the very best of reasons, copsidering reasons from the standpoint of 
 existing conditions and not of theory. 
 
 The admissibility of the declarations of voters, made at the time of 
 voting, as a part of the res gestae, is established by a long line of prece- 
 dents in the House of Representatives and elsewhere. The committee 
 quoted from the New Jersey case (1 Bart., 19, 25, 26); Vallandigham 
 vs. Campbell (1 Bart., 223, 230-236); Bell vs. Snyder (Smith, 247, 250- 
 265); Wallace w. McKinley (Mobley, 185); Smith I'.v. Jackson (Rowell, 
 13). On the question of the admissibility of lists, they referred to 
 McDuffie vs. Turpin, Fifty-first Congress (Rowell, 257, 275-285). The 
 conclusions of the minority were summed up as follows: 
 
 The principle underlying the Congressional cases above cited in this: That the 
 declaration of a voter, or one entitled to vote at a given election, made at or in the 
 vicinity of the voting place immediately following his effort to vote, concerning his 
 own acts and qualifications or disqualifications, are parts of the res gestse and are 
 admissible in evidence. In voting or in attempting to vote, or in being present at 
 the polls with the desire to vote, the voter is discharging, or attempting to discharge, 
 or desiring to discharge, one of the most solemn and momentous duties of citizenship, 
 and to us it seems clear that his every act and word calculated to show in any degree 
 what his purposes or qualifications were are clearly admissible in evidence as a ]iart 
 of the res gestaj. This evidence may be furnished by the depositions of other,", or 
 by the written statements of others, made at the time, pi-eserving and exhibiting the 
 statements or declarations or admissions, either oral or written, made by the vcjter 
 
534 DIGEST OF CONTESTED ELECTION CASES. 
 
 1 
 or the nonvoter, as the cafse may be, as is clearly established by the preceding 
 authorities. * * * 
 
 . Those authorities and the reasoning upon whicli they are predicated clearly show 
 that the declarations of those who were deprived of the privilege of voting on 
 election day are competent evidence in support of the allegation that they were 
 lawful voters, intended to vote, were deprived of that privilege, and would have 
 voted for contestant. These declarations were made at the time of holding the 
 election, and to persons in or near the voting places. They related to the subject- 
 matter of the election, formed a part of the history of the transactions of the elec- 
 tion, and were in the highest and truest sense parts of the res gestae. 
 
 Acting on this principle, the minority considered the evidence in 
 regard to each precinct in dispute, and said: 
 
 We do not contend that the evidence is suflBcient to count all of the lists under the 
 rules of law, which we above affirm, but we do believe that the evidence is sufficient 
 to count for the contestant in the various counties of the district 4,523 votes, the 
 same being a sufficient number, when added to the return vote of the contestant, to 
 entitle him to a seat in Congress. 
 
 The case was fully debated in the House, attention being called to 
 the fact that the question of the constitutionalitj^ of the South Carolina 
 registration law was also involved in the cases of Moorman vs. Lati- 
 mer, Wilson vs. McLaurin, and Murray vs. Elliott. On May 29, 1896, 
 the resolution proposed by the minority, declaring contestant elected, 
 was lost by a vote of 95 to 105. The reverse resolution , declai-ing contest- 
 ant was not elected, was then carried by a vote of 103 to 99. The House 
 then adjourned, and on June 1 voted without division to reconsider 
 both these votes. Mr. McCall then moved, as an amendment to the 
 minority resolution, a resolution declaring that no valid election had 
 been held and vacating the seat. This was carried by a vote of 130 to 
 125, so on June 1, 1896, the seat was declared vacant. 
 
 [Report 1229, first session. Fifty-fourth Congress.] 
 
 (28) CORNETT VS. SWANSON. 
 
 Constitutionality of Virginia hallot law. Majority report for eon- 
 testec; mlnm'ity import to declare seat vacant. Contestee retained the 
 Seat. 
 
 Majority report by Mr. Jones; minority report by jSIr. Thomas. 
 
 Contestee received a majority of 2,333 on the face of the returns. 
 Contestant took testimony in regard to 12 precincts in the district, only 
 5 of which were mentioned in his notice of contest. If all that he 
 claimed in all 12 precincts were conceded him, contestee would still have 
 a majority. There were 144 precincts in the district. The case there- 
 fore turned wholly on the charge that the new Australian ballot law of 
 Virginia, known as the "Walton election law," was unconstitutional. 
 Since the election the supreme court of Virginia had unanimously held 
 that the law was constitutional, and the majoritj' of the committee 
 therefore reported resolutions declaring contestee elected. The com- 
 mittee said: 
 
 But it is not deemed necessary, for the reason stated, to enter upon any extended 
 discussion of these legal and constitutional questions, or to inquire to what extent the 
 decisions of a State court should be regarded by the House of Representatives or by 
 this committee. It would not necessarily follow, in the opinion of the committee, 
 were it conceded that the Walton election law was unconstitutional, and therefore 
 inoperative as to the particular features of that law here assailed, that no valid elec- 
 tion had been held in the Fifth Congressional district of Virginia. The sections which 
 are assailed by reason of their alleged unconstitutionality are not so essential to the 
 
FIKTY-FOUETH CONGRESS. 535 
 
 operation of the law under which this election was held, or so inseparably connected 
 with its other provisions and requirements, that even should they be thought to be 
 inoperative this committee would be justified upon that ground in declaring that 
 there had been no legal election. 
 
 Messrs. Thomas, Walker, and Overstreet signed a minority report 
 arguing that the election should be vacated. On the legal question 
 they said: 
 
 A8 to the right of the House of Representatives to inquire into the validity of the election 
 law of Virginia. — The House of Representa,tives having original jurisdiction as to the 
 right of a person to a seat in its Chamber, and being a tribunal of last resort, it 
 undoubtedly has the power to pass upon any question that it deems relevant to the 
 issue. It has never been claimed by any political party in the history of the Republic 
 that the power to act carries with it the right to act. On the other hand, it has been 
 the unifor4n practice of the House of Representatives to base its action in all cases 
 upon certain fundamental principles, and those principles have, and ought to have, 
 the binding force of law. Among those principles is this: 
 
 That the decision of the supreme court of a State ought to govern in all cases, 
 unless the constitutional rights of the citizen are clearly mvaded. And it may be 
 said that in all cases where the question is local to the State and relates purely to its 
 domestic affairs the House of Representatives will always abide by the decision of 
 its court of last resort. But it is clear that questions might arise in which not only 
 the rights of the citizen but the interests of the nation at large would be involved, 
 and in such case the House of Representatives would most certainly exercise its 
 original jurisdiction. 
 
 For instance, suppose a State should by its constitution give to all illiterate persons 
 over 21 years of age the right to vote; and suppose the legislature should provide that 
 no elector should be permitted to know, by all customary means, the contents of his 
 ballot (and that after it was handed to him no man should come near him, and that 
 if anyone gave him any information, either by word, or sign, or signal, it would be 
 a crime) , and that thereby all illiterate electors were disfranchised; and suppose the 
 supreme court of the State should decide that such a law was constitutional, it would 
 not, we think, be denied by anyone that it would be the duty of the House of Rep- 
 resentatives to declare such an election void, and to refuse to seat the man who had 
 been elected by those only who could read their ballots. This would be a case of 
 disfranchisement where an appeal would lie, so to speak, from the supreme court 
 of a State to the House of Representatives. 
 
 The minority, therefore, examined the case cited, first, to ascertain 
 whether the supreme court of Virginia had legally passed upon the 
 question, and, second, whether the question was of such vital national 
 interest as to challenge the attention of the House of Representatives. 
 
 The decision in question they found to be pure dictum, uttered in- a 
 collusive case, of which the court itself decided that it had no jurisdic- 
 tion. The plaintiff in the case had brought an action in chancery to 
 collect wages due him from a county, for which he had a plain remedy 
 in law. The court below promptly threw out the case on the ground 
 of want of equity jurisdiction. The defendant county took no part in 
 the case in any of its stages. Plaintifl', instead of bringing action 
 in law, then appealed the case to the supreme court, and in his brief 
 made an incidental reference to the election law. The supreme court 
 took up this reference, issued its dictum on the election law, and then 
 proceeded to sustain the court below on the only point at issue and 
 throw out the whole case for want of jurisdiction. Such a decision is 
 never regarded as a precedent. 
 
 The charge against the election law was that it deprived all illiterate 
 voters of the secrecy of the ballot by forbidding public knowledge in 
 advance of the order of the names on the ballot, by requiring the 
 voter to mark his own ballot, on a complex system, in a secret booth, 
 40 feet from any other person, in two and one-half minutes, and by 
 permitting him, if illiterate, to get no help except from the special 
 
536 DIGEST OF CONTESTED ELECTION OASES. 
 
 constable appointed for the purpose, who was always a member of the 
 party controlling the election machinery. 
 There were 110,000 illiterate voters in Virginia. 
 
 Your committee is of the opinion that, in view of the magnitude of the question, 
 involving the political rights of more than 100,000 of the voters of Virginia, the irreg- 
 ular character of the suit, the strange and one-sided manner in which it was con- 
 ducted and the suddenness with which it was abandoned, the irrelevancy of the 
 Walton law to the controversy, and because the constitutional rights of American 
 citizens are directly involved, the House of Eepresentatives may inquire into the 
 validity of the Walton election law of Virginia in this case. 
 
 The minority discussed the law and the manner of its operation in 
 detail, and summed up the objections to it as follows: 
 
 It is the policy of this Republic to extend and encourage the use of the elective 
 franchise. Any law that deters, discourages, and hinders its use is destructive of 
 the democratic principles of government. The Walton law, by clothing an officer 
 of election with arbitrary power, by destroying the secrecy of the ballot, and by 
 establishing a qualification in contravention of the constitution of the State, can not 
 be upheld and enforced without the most serious consequences to our free institutions. 
 A law which enables an officer to mislead voters, to falsely prepare ballots, to change 
 the vote of a whole precinct, and to know the contents of ballots before they are cast 
 is' too dangerous to be upheld and too destructive to constitutional rights to be tol- 
 erated in American statute books (p. 13) . 
 
 Your committee is therefore of the opinion that this law is unreasonable, and 
 therefore unconstitutional, because it withholds from the voter a timely and neces- 
 sary knowledge of the arrangement of the names of candidates on a mixed and con- 
 solidated ballot. It is void because it withholds from the voter all ordinary and 
 customary me'ans of knowledge (p. 15). 
 
 1. Having adopted the Australian consolidated ticket, this law adds to its com- " 
 plexity and enigmatical character by providing that any number of men, on their 
 own motion, may have their names placed on the ticket as candidates. Thus the 
 illiterate voter may be confused with a hundred useless names. In other States, 
 such as Pennsylvania, New York, Ohio, Massachusetts, Kew Hampshire, Kentucky, 
 Vermont, and Maryland, the law provides wholesome restraints against the con- 
 fusion attending a long list of needless candidates. 
 
 2. Under this law the election officers may all belong to the same party. Other 
 States require that each political party shall he represented. 
 
 3. Under this law the judges may, in secret, open the ballot boxes and empty 
 them of their contents. In other States it must be done m the presence of the public. 
 
 4. Under this law every voter is prevented from knowing what is on the ballot 
 until a moment (two and one-half minutes) before he must deposit it. In other 
 States the official ballot is published in newspapers and posted in public places 
 before the election for the purpose of instructing the voters. 
 
 5. Under this law the names may be printed in different type and in different order, 
 on different tickets, at the same precinct. In other States they must be in the same 
 order and in the same type in all precincts. 
 
 6. Under this law the electoral board may have but one booth for hundreds of 
 voters. In other States booths must be prepared for every hundred vote-rs, and, in 
 some States, for every fifty. 
 
 7. Under this law the voter can not avail himself of the assistance of a friend, of a 
 neighbor, or of an educated son or daughter or relative, or any person in whom he 
 has confidence. In other States all the avenues of knowledge are open to him. 
 
 8. Under this law he can not be satisfied that his vote will be counted as he directs, 
 and he is deterred from voting at all. In other States he can satisfy his judgment 
 and his conscience that his ballot will express his t'hoice, and he is encouraged to 
 cast his vote. 
 
 9. Under this law the voter can be compelled to disclose his ballot to a political 
 enemy, and be made to rely upon him as to the character of the ballot he casts. In 
 other States he need not reveal anything to a political foe and need not seek advice 
 or counsel outside the circle of his trusted friends. 
 
 10. Under this law the ballot is dishonored, the illiterate voter disfranchised, man- 
 hood and suffrage brought into disrepute, and American citizens repelled from the 
 ballot box. In other States the ballot is honored, the illiterate voter is aided and 
 encouraged, the elective franchise held in universal esteem, and American citizens 
 encouraged to perform their political duty. 
 
FIFTy-FOURTH CONGRESS. 537 
 
 11. Under this law only those electors can cast a secret ballot who can read. But 
 the Virginia constitution enfranchised those who can not read. Therefore the A\'al- 
 tou law defeats the constitution by disfranchising those who can not read. 
 
 Such is the perversion of the Australian ballot system by the Walton law of ^'ir- 
 ginia. A beneficent system, originating forty years ago in South Australia, aiid 
 since largely adopted throughout the civilized world, designed to protect the secrecy 
 and freedom of the ballot and to secure an honest count, is stripped of every safe- 
 guard and mutilated and deformed beyOnd recognition by the legislature of Virginia 
 and ironically called the Australian system (pp. 19, 20). 
 
 The minority thei'efore recommended a resolution declaring the seat 
 vacant. 
 
 In the debate in the House, Mr. McCall called attention to the fact 
 that the House had already seated two members in contests from Vir- 
 ginia under the same law and that the remainder of the Virginia mem- 
 bers, who held their seats uncontested, were elected under the same lavY. 
 
 After some further debate the resolutions reported by the majority 
 were (on February' 3, 1897) passed without division; so contestee 
 retained the seat. 
 
 [Report 1473, parts 1 and 2, first session Fifty-fourth Congress.] 
 
 (29) HoGE -I'.s'. Otey. 
 
 Case not made out. Application f err farther time to take testimony 
 refused. Contestee retained the seat. 
 
 Report by Mr. De Armond. 
 
 The bod}' of the brief committee report is as follows: 
 
 According to the returns, contestee received 2,346 more votes than contestant. 
 
 The record contains but a few pages of testimony, and it would be impossible to 
 give to such testimony any effect by which the seat in controversy could be awarded 
 to the contestant or could be taken from the contestee. 
 
 Contestant has asked that the case be opened for the taking of further testimony, 
 but he has failed to show any sufficient reason for such course. Not only is there no 
 apparent reason for making an exception in this case to a fair and long-established 
 statutory rule, fixing the time for the taking of testimony in contested election cases, 
 but, from contestant's own showing, it appears that if the case were opened the 
 result of the contest would not be different. 
 
 The resolutions recommended were passed on May 15, 1896, without 
 division; so contestee retained the seat. 
 
 [Report 1530, first session Fifty -fourth Congress.] 
 
 (30) Thoep vs. McKenney. 
 
 Partisan appointment of election hoards; fra.nd. Both reports fir 
 contestant. Contestant seated. 
 
 Majority report by Mr. Walker; minority report \>y Mr. De 
 Armond. 
 
 According to the canvassed returns contestee had a majority of S(!-l. 
 Adding one uncanvassed return, his majority was 785. Cpntestant 
 charged fraud and irregularities and the partisan appointment of elec- 
 tion officials. Contestee replied to the notice of contest, but took no 
 testimony, so the case came before the committee on the testimony of 
 contestant alone. All the committee agreed that contestant was 
 elected, but the minority did not subscribe to the strictures of the 
 majority on the motives of the electoral boards in failing to appoint 
 Republican judges of elections. 
 
538 DIGEST OF CONTESTED ELECTION CASES. 
 
 The law of Virginia required the electoral boards of each county to 
 appoint throo judges of election in each precinct who " shall bechosen 
 for each voting place from persons known to belong to different 
 political parties, each of whom shall be able to read and write." This 
 provision for nonpartisan election .officers was generally violated. All 
 the county electoral boards and all the canvassing boards were_ unani- 
 mously Democratic. At least two of the judges of election in each 
 prciinct and practically all the clerks, constables, and other election 
 officials were Democrats, and in a number of precincts the Republicans 
 were denied any representation at all, there being either no Repub- 
 lican judge, or a pretended Republican, who was not trusted by the 
 Republicans, could not read, or was physically disabled. There were 
 11 precincts, giving contestee a returned plurality of 1,356 votes, at 
 which the Republicans had no representation, and 8 others, giving 
 contestee a returned majority of 523, at which the Republican judge 
 was illiterate or physically incompetent, or was not regarded as a 
 Republican. The failure to appoint Republicans in these precincts 
 was not due to oversight or to the difficulty of finding competent men, 
 for the electoral boards had their attention expressly directed to the 
 matter Ijy requests from the Republican chairmen, giving the names 
 of competent Republicans in each district who were trusted by their 
 party. If all these 18^ precincts should be rejected, contestant would 
 be elected Ijy a plurality of 1,184. The committee, however, rejected 
 only the 11 at which there was no Republican representation, at each 
 of which (or at 10 of them, see footnote) there was direct and circum- 
 stantial evidence of fraud. This would show a majority for contestant 
 of 571 (or 401, see footnote) votes. The committee added, however, 
 "Several other precincts, in the opinion of the committee, ought to be 
 rejected, but it is not necessary to set them out here, as by doing so we 
 would onlj' increase the contestant's majority." 
 
 In regard to these partisan appointments the committee said: 
 
 The provision of law requiring judgeH of election to be able to read and write and 
 selected from voters known to belong to different political parties is wise and salu- 
 tary, as evidenced by its being recognized and incorporated in the election laws of 
 all the States which claim to have honest election laws, It is a provision intended 
 as a safeguard against fraud, and is in Virginia especially important to that end, 
 because in this State the judges of election, after the polls are closed, and befure any 
 representatives of opposing candidates are admitted into the election room, open 
 the ballot boxes, count the ballots to see whether they correspond with the number 
 of names on the poll books, and if they exceed the number of electors on the poll 
 books, withdraw enough ballots to reduce the number of ballots to the number of 
 electors, which affords to partisan and unscrupulous judges the opportunity to sub- 
 stitute false ballots for true ballots. 
 
 This provision might ordinarily be considered as mandatory — it is such an imjior- 
 tant safeguard against fraud — but the A^irginia statute further provides that "no 
 election shall be deemed invalid when the judges shall not belong to different polit- 
 ical parties, or who shall not possess the above qualifications; ' ' i. e. , as we understand 
 it, an election fairly conducted without any charge or tamt of fraud shall be A-alid 
 though the judges do not belong to different political parties, etc. It was intended to 
 
 ^It will be noted that the committee makes 11 and 8 equal IS. There are several 
 other apparent diserepanides in the arithmetic of the report which do not, however, 
 affect the result. The committee, for instance, give a list of 10 precincts rejected of 
 the above first list of 11, and then deduct the vote of the entire 11. The second list 
 of 8 above is evidently only 7, 1 return being counted twice under two heads. The 
 second error is of no importance, as the committee did not i-eject the return under 
 either name. The first error, if the inclusion of the vote of the First Ward of Peters- 
 burg in the rejected figures and its omission from the rejected list was unintentional, 
 would, if corrected, reduce the contestant's majority; as found, from 571 to 401. 
 
FIFTY -FOUKTH CONGRESS. 539 
 
 cover the cases of a few isolated precincts where, by accident or otherwise, all the 
 judges happened to belong to the same political party or a judge happened to be 
 appointed who did not possess the necessary qualifications, but the will of the voter 
 was nevertheless fairly expressed and correctly and honestly returned. In such a 
 case, there being no bad faith or intentional wrong on the part of the appointing 
 power or the judges, the election ought to stand and the return be accepted. 
 
 But this statute was not intended to apply to a case like the one before the com- 
 mittee. It never was intended as a shield for fraud. 
 
 The charge here is that the election held at these 18 precincts by judges all of the 
 same party were dishonestly conducted, and the returns made by these judges are 
 false and utterly unreliable as evidence of what was the true vote cast. 
 
 The Virginia Statute does not say that the returns of an election, where the judges 
 do not belong to different political parties, etc., shall be accepted, nor does it say 
 what weight shall be given to this failure to appoint such judg&s in considering the 
 question of fraud; but the report of the committee in the case of McUufBe vs. Turpin 
 (Fifty-first Congress) , quoted in the brief, does say that in itself it raises a strong 
 suspicion, if it does not fully prove, a conspiracy to falsify the returns. 
 
 The failure to comply with the law in this respect was not in a few isolated pre- 
 cincts. 
 
 Under the Virginia election law the custodians of the official ballots 
 were forbidden to disclose their contents or arrangement, and the 
 voter was required to prepare his ballot alone or, if illiterate or dis- 
 abled, with the assistance of the special constable appointed for the 
 purpose. In the city of Petersburg and five of the counties of this 
 district the names on the ballots were "alternated;" that is, not printed 
 in the same order on the whole bundle of tickets for the precinct, but 
 in several different orders, tickets of the different sorts being alternated 
 in the bundle, so that it would be impossible for an illiterate voter who 
 could count to identify a name on his ballot by being told its number 
 as ascertained on his own ballot by some preceding voter who could 
 read. Script type, and various sizes and styles of type were also used, 
 tickets with different arrangements of tj'pe for different names being 
 alternated in the same confusing manner. This plan had been deter- 
 mined on at a secret meeting, after the ballots had already been once 
 printed in uniform style. The committee took this fact, and the vari- 
 ous circumstances described below, as evidence of a general conspiracy 
 to defraud contestant of votes justh' his. 
 
 The district was a recognized Republican district. The party support 
 of contestant was harmonious and enthusiastic; that of contestee was 
 divided and apathetic. The precincts at which the Republicans were 
 denied representation were strong Republican precincts and were 
 returned as giving large Democratic majorities. The Democratic offi- 
 cers of election were, in several cases, not those regularly appointed, 
 and there were serious informalities in their procedure. The returns 
 in most cases showed a discrepancy of several votes between the total 
 vote, minus the rejected ballots, and the vote for Congress, which 
 " alone and unexplained is sufficient to discredit the returns." Repub- 
 lican tally keepers were appointed at each poll, who presented lists of 
 known Republicans who were seen to vote and who stated that they 
 voted the Republican ticket, showing a number considerably in e.xcess 
 of the returned vote of contestant. These tally keepers were interf ei'ed 
 with in their work, and in some cases driven away, by the election 
 officers, and in several cases there was direct proof of fraud. In one 
 precinct a judge was seen to substitute a ballot from his pocket for the 
 one handed him bj"^ the voter. In some precincts intelligent voters in 
 excess of the number returned for contestant testified that they pre- 
 pared their own ballots fol- him and voted them. In some cases the 
 
540 DIGEST OV CONTESTED ELECTION CASES. 
 
 entire list of voters was returned as voting for one or the other candi- 
 dates for the State legislature, though a number of intelligent voters 
 testified that they did not vote for either candidate for the legislature, 
 and that there was a general agreement among Republicans not to so 
 vote, and in some precincts the special constables refused to assist 
 illiterate voters unless they would vote the Democratic ticket. The 
 committee analyzed the testimony showing these facts at each of these 
 precincts and concluded: 
 
 It is unnecessary to cite law or authorities further than has already been done to 
 show the right of the contestant to a seat in the Fifty-fourth (congress. 
 
 The refusal of the electoral boards in the several counties and cities in this district 
 to appoint Republican judges at precincts where it was possible to do so; the alterna- 
 tion of the names of the candidates upon the tickets, printing them in unusual type 
 and in type of different sizes and styles; the appointment of Democratic officehold- 
 ers as judges, constables, and clerks at many precincts; the appointment of illiterate, 
 incompetent Republican judges at other precincts; the refusal of the special consta- 
 bles to assist illiterate voters, as the law required them to do; the illegal and arbitrary 
 action of the judges and officers of election in driving away Republican tally keepers 
 from the vicinity of the polls with threats of violence and imprisonment; refusing to 
 permit a Republican to be present at the counting of the votes, and jalacing the name 
 of an illiterate and obscure negro upon the tickets as a pretended candidate for Con- 
 gress furnish conclusive evidence of a conspiracy on the part of the election officers 
 to defraud the voters, which destroys the integrity of their act and taints the returns 
 so as to render them wholly unreliable, and devolves upon the contestee the duty of 
 proving what was the true state of the poll, which, as we have seen, he has not 
 attempted to do. 
 
 Add to these evidences of fraud and conspiracy the many proofs of error, fraud, 
 and irregularity at the various precincts, as above set forth in this report, and it is 
 clear that the contestant was duly elected by a majority of the legal votes cast at 
 said election, and that the contestee was not elected. 
 
 The minority presented a report concurring in the conclusion that 
 contestant was elected, and saying that they regretted the failure of 
 the electoral boards to appoint Republican judges in the precincts in 
 question, but that it had been done by reason of a mistaken view of 
 the law and not with the intention of defrauding anybody. 
 
 The resolutions presented were passed without debate or division, 
 and, on May 2, 1896, Mr. Thorp was sworn in. 
 
 [Report 1531, parts 1 and 2, first session Fifty-fourth Congress.] 
 
 (31) Pearce (w. Bell. 
 
 Case abandoned. Report for contestee^ ivho retained tin' se-id. 
 
 Report by Mr. Walker. 
 
 The body of the brief report is as follows: 
 
 In this case the contestant gave no notice of contest, as required bv law, and has 
 taken no evidence to sustain the allegations of fraud and intimidation claimed bv him 
 to have been committed. 
 
 The official returns show that the contestee received 47,703 votes, that Thomas M. 
 Bo wen received 42,369 votes, that W. A. Rice received 2,032 votes, and the contestant 
 received 157 votes. 
 
 The committee therefore presented resolutions declaring contestee 
 elected, which, on April 29, 1896, were passed by ffie House without 
 debate or division. 
 
 [Report 1529, first session Fifty -fourth Congress.] 
 
 (32) Newman vk. Spencer. 
 
 (33) Ratliff vs. Williams. 
 
 (34) Brown vs. Allen. 
 
FIFTY-FOURTH CONGRESS. 541 
 
 Validity of covstitutum of Mississippi. Heports fw con.tenteeii.^ who 
 retained seats. 
 
 Reports by Mr. McCall. 
 
 These three cases involved the same question, and the three reports 
 are in substantially the same languagfe. The body of the report in the 
 case of Newman vs. Spencer is as follows: 
 
 lu this case no testimony has been presented to the committee. It is alleged that 
 some was talien, but nothing has been filed with the Clerk of the House. The con- 
 testant, however, contends that section 241 of article 12 of the constitution of the 
 State of Mississippi, adopted in 1892, is in contravention of the Constitution of the 
 United States and of the act of Congress of February 23, 1870, entitled "An act to 
 admit Mississippi to representation in the Congress of the United States," and has 
 filed a brief in support of his contention. He claims that the above-named section 
 of the State constitution is void, and that therefore no valid election was, or could be, 
 held in the Seventh Congressional district of the State of Mississippi. 
 
 As the committee is of the opinion that a decision that the consliitution of the State 
 of Mississippi was invalid would not necessarily deprive the State of representation in 
 Congress, it does not attempt to decide that question, and in absence of any testimony 
 on behalf of the contestant it recommends the adoption of the following resolutions. 
 
 The resolutions recommended in all three cases were adopted with- 
 out debate or division on April 30, 1896. 
 
 [Reports 1536, 1537, and 1538, first session Fifty-fourth Congress.] 
 
 (35) Wilson vs. McLaurin. 
 
 Illegal rejection of votes. Report for contestce, who retained the seat. 
 
 Report by Mr. Codding. 
 
 This case turned (like the other South Carolina cases in this Congress) 
 on the question of counting a large number of votes ofi'ered by otherwise 
 qualified electors but rejected by the election ofiicers on the ground 
 of nonregistration. The committee found that the number of these 
 rejected votes clearly proved in this case was less than the contestee's 
 returned majority of 5,716, and therefore presented resolutions declar- 
 ing contestee elected. 
 
 Contestee demurred to the notice of contest. The committee said: 
 
 It is admitted that the notice was in writing and was addressed by registered mail 
 to the contestee, one coi^y to his "home office " at Bennettsville, S. 0., and the other 
 copy to Washington, D. C. It is not denied that both copies were received by Mr. 
 McLaurin within the statutory thirty days, nor is it alleged that he has been placed 
 at any disadvantage by the manner of service. That the notice was in writing and 
 that it reached the proper party are sufficient for this committee to hold the con- 
 testee to the necessity of his answer and proofs. In all such cases the rules as to 
 service may naturally be somewhat flexible, according to the circumstances, pro- 
 vided that no clear right be thereby denied or infringed. An intelligent and intel- 
 ligible notice in writing, actually in the hands of a contestee within the thirty days 
 established by statute ought to be sufficient. 
 
 On the question of the constitutionality of the registration law of 
 South Carolina the committee said: 
 
 A casual examination of the testimony discloses the fact that if the contestant is to 
 overcome the majority returned against Mm his chief reliance must rest in being 
 allowed to reverse the results of the registration law of 1882 and to ally with his 
 certified vote the aggregate of such votes as were rejected under that law. 
 
 In taking up this question some surprise is not unnatural that during its career of 
 more than twelve years the constitutionality of this law has not been urged to a deci- 
 sion before the highest tribunals. Disfranchising, it is alleged, many thousands of 
 voters, the law appears before this House for construction at a period when it is 
 approaching, or has reached through other legislation, a practical death in the State 
 
542 DIGEST OF CONTESTED ELECTION CASES. 
 
 of its adoption. Under these circumstances no lahored or extended argument will 
 be attempted in this report. That law, by its specific terms, extended the period of 
 residence required by the constitution of South Carolina. It placed in the hands of 
 a supervisor of registration, an official holding by executive appointment a power 
 practically-absolute of judging the rights of voters, and the testimony is abundant 
 that the power was unsparingly used for the exclusion of at least one class. It is 
 equally true that the same power so molded the details of many registration certifi- 
 cates that officers conducting elections were able, or assumed to be, to reject many 
 voters on account of trivial or pretended defects in their . certificates. Against the 
 sweeping disfranchisement of this law the average voter was powerless when he ten- 
 dered his ballot. Under color of law his exclusion was complete. 
 
 A majority of this committee has reached the conclusion that the voters of the 
 district now in consideration who were qualified under the constitution of South 
 Carolina and who were rejected under color of the enforcement of the registration 
 law are entitled to be heard in this contest. 
 
 In this conclusion no violence is done to the doctrine that "where the proper 
 authorities of a State have given a construction to their own statutes that construction 
 will be followed by the Federal authorities." While the supreme court of South 
 Carolina has not passed decisively upon the statute in question the people themselves, 
 the highest authority in that State, have decreed its disappearance from the statute 
 book. 
 
 From this standpoint we look for the course to be followed. Shall the election be 
 set aside and the seat in question vacated? Under the authorities we think not. 
 
 Beyond doubt the usual formalities of an election were for the most part observed. 
 No substantial miscount of votes actually cast is alleged. There are no charges of 
 violence or intimidation seriously affecting the result which have been verified. If 
 fraud be alleged, under sanction of legislative enactment, it was a general fraud, and 
 the returns are in general unchallenged for correctness. The votes actually cast are 
 not in controversy; the votes not cast are the ones presented for computation. 
 
 Quoting McCrary, sections 483, 489, and Waddill vs. Wise (Rowell, 
 2i;4), the committee said: 
 
 It is a matter of serious import and precedent to introduce into an election the 
 count of a large disfranchised class. But if the principle is good as to 4 or 40 or 400 
 it should certainly be no less available for a larger number; or, briefly, the number 
 is immaterial if capable of correct computation. 
 
 The contestant claimed to be allowed the votes of several thousand 
 alleged voters, whose names were given, but whose qualifications 
 rested on varying testimony. The names of the voters appeared in 
 lists executed in most of the election precincts on the day of the elec- 
 tion, signed by the parties or by authorization, and were in most cases 
 appended to a form of petition addressed to Congress, reciting that 
 the subscribers were qualified to register and vote and had "made 
 every reasonable effort to become qualified to vote according to the 
 registration law of this State, but have been denied an equal chance 
 and the same opportunity to register as are accorded to others,"' and 
 had presented themselves at the election, intending and desiring to 
 vote for contestant, and were denied the right to vote. The committee 
 said: 
 
 These petitions are not usually verified by affidavit, but are generally supple- 
 mented by testimony of those who had them in charge, with such explanations and 
 corroborations as the witnesses could give. 
 
 It is considered by a majority of this committee that these lists are not per se evi- 
 dence m the pending contest. They are declarations, important parts of which 
 should be proven in accordance with usual legal forms. It is not impossible so to 
 do, and consequently we think it is necessary for reaching trustworthy results. 
 
 Under the authority of A'allandigham vs. Campbell (1 Bartlett, p. 31) these decla- 
 rations miglit serve a use beyond a mere list for verification, for it was there held 
 the law is settled that the declaration of a voter as to how he voted or intended to 
 vote, made at the time, is competent testimony on the point." 
 
 We propose to compute the ballots of those who were entitled to cast them, and 
 tliere is ample support in a Ime of authorities and precedents. A few only are 
 
 SGiGCtGQ. 
 
FIFTY-FOURTH CONGRESS. 543 
 
 Delano vs. Morgan (2 Bartlett, 170), Hogan vs. Pile (2 Bartlett, 285), Niblack vs. 
 Walls (Forty-second Congress, 104, January, 1873), Bell vs. Snyder (Smith's Bep., 
 251), are uniformly for "the rule, which is well settled, that where a legal voter 
 offers to_ ygte for a particular candidate, and uses due diligence in endeavormg to do 
 so, and is prevented by fraud, violence, or intimidation from depositing his Ijallot, 
 his vote shall be counted." 
 
 In Bisbee, jr., vs. Finley (Forty-seventh Congress) it was stated, "as a question 
 of law we do not understand it to be controverted that a vote offered by an elector 
 and illegally rejected should be counted as if cast." 
 
 In Waddill vs. Wise (supra) the same doctrine was elaborately discussed and a 
 further step taken by holding "that the ability to reach the window and actually 
 tender the ticket to the judges is not essential in all cases to constitute a good offer 
 to vote." 
 
 Referring to the evidence given in connection with the lists in this record it seems 
 proper to adopt some general principles as a standard for the examination, and the 
 following have been used as suitable and in accord with the precedents quoted: 
 
 First. The evidence should establish that the persons named in the lists as excluded 
 voters were voters according to the requisites of the constitution of South Carolina. 
 
 Second. The proof should show that said persons were present at or near the Con- 
 gressional voting place of their respective precincts, for the purpose of voting, and 
 would have voted but for unlawful rejection or obstruction. 
 
 Third. That said excluded voters would have voted for the contestant. 
 
 Applying these principles to the testimony in detail the committee 
 found 3,124 votes, 501 of which, however, were included "for argu- 
 ment's sake," being from places at which no polls were opened. By 
 either computation the number was insufficient to overcome the 
 retui-ned majority of contestee. 
 
 There was no minority report, and when the case was presented to 
 the House it was stated that the "resolutions in the report represent 
 the unanimous sense of the committee," but most of the points of law, 
 as above quoted, are expressly stated in the report to be the opinion of 
 "a majority" of the committee. 
 
 The resolutions presented were adopted without division on May 1, 
 1896, and contestee retained the seat. 
 
 [Report 1566, first session Fifty-fourth Congress.] 
 
 (36) MuEEAY v'.v. Elliott. 
 
 Illegal rejection of votes. Majority report for contestant; minority 
 report for contestee. Contestant seated. 
 
 Majority report by Mr. Overstreet; minority report by Mr. Jones. 
 
 This case turned on the charges of unlawful rejection of votes by 
 the election officers in' the city of Charleston, S. C. According to the 
 returns, contestee had a majority of 1,637. It was admitted that con- 
 testant should be credited with 217 votes cast at Haut Gap, Berkeley 
 Count}', where the Federal polls were not opened by reason of the fail- 
 ure of the managers to act, but the electors, under the law, improvised 
 an election board and cast their votes. This would reduce the returned 
 majority of contestee to 1,420. His returned majority in the city of 
 Charleston was 2,414. The committee called attention to the history 
 of this district in Congressional contests and to the fact that contestee 
 in this case had been the contestee in two previous contests. In the city 
 of Charleston the number of colored men of voting age was 8,437; that 
 of whites was 6,492. The colored voters were, as a whole. Republi- 
 cans, and were actively interested in the election, attending in large 
 crowds, both at the registering offices and at the polls, and ^^^i the 
 returned vote was, Elliott, 2,811 votes and Murray 397 votes. Con- 
 testee received 43 per cent of the white vote and contestant 4 per cent 
 
544 ■ DIGEST OF CONTESTED ELECTION OASES. 
 
 of the colored vote, the white minority thus outvoting the colored 
 majority nearly 10 to 1. The committee said: 
 
 In the absence of some reasonable explanation it would, indeed, be strange that in 
 a city of 65,000 population, with 8,000 colored voters and '6,000 white voters, the 
 proportion of white voters to colored voters should be as 10 to 1. 
 
 But a study of the record discloses a reasonable explanation; and that is that the 
 board of supervisors fraudulently impeded and prevented the registration of colored 
 voters, and committed intentional errors in the execution of registration certificates for 
 illiterate voters, and that challengers, unauthorized by law, and by the sanction of the 
 managers at the various precincts, arbitrarily passed upon the qualifications of colored 
 voters and directed wlao should vote and who should not, and that in some of the 
 precincts the dead and absent were recorded as having voted. 
 
 The board of supervisors for the city of Charleston consisted of three men, to whom 
 each voter was required to apply for a certificate of registration. This board was an 
 arbitrary court, before which illiterate and ignorant voters were compelled to go and 
 in which they had a right to place full confidence. If errors were made upon the 
 certificates the illiterate voters would not be able to discover them and if an error 
 proved fatal to his certificate the voter was helpless. 
 
 A common excuse for rejection of ballots was that certificates held by the voter 
 failed to give the number of the precinct, or the correct number of the ward in 
 which the voter lived, or the proper number of his residence. The fact that these 
 errors appeared always with certificates held by colored voters is significant. That 
 the voters holding such certificates were illiterate was sufficient excuse for their 
 ignorance of the condition of the certificates, and plainly shows that the errors were 
 made l)y the supervisor of registration, and whether intentional or not should not 
 operate against the voter. The common character of the apparent mistakes, and 
 their frequency, strongly and conclusively indicate that they were intentional, and 
 made for the purpose of depriving the holders of the certificates of their ballots. 
 
 The evidence strongly shows that the supervisors of registration in Charleston 
 threw every possible obstacle in the way of a full and fair registration. By delay in 
 the issuing of certificates, by seeming investigations, by excuses, by favoritism, and 
 by discrimination against the colored voters, unquestionably many hundreds were 
 prevented from registering. This state of facts is shown to have existed in almost 
 every precinct in the city. To show the character of this testimony, and that the 
 condition was almost universal, the following extracts from the evidence taken from 
 the record are given: 
 
 The committee quoted a large amount of testimony and added: 
 
 THE DEMOCRATIC CHALLENGERS. 
 
 The law of South Carolina makes no provision for any such officer as a challenger; 
 neither does it recognize or favor party representation in the formation of the different 
 boards. And yet in every precinct in the city of Charleston a Democratic challenger 
 was on duty, and in nearly every instance a privileged character within the polling 
 place, while at each precinct the officers of election were all Democrats. 
 
 In many instances the challenger was the authority of the board upon the ques- 
 tion of qualification, and in no case where the challenge was exercised was the voter 
 allowed a hearing or permitted to vote. 
 
 The familiarity of the challengers with the registration books and the kind of cer- 
 tificates held by the voters evidenced their preparation for their part in the plan, 
 which was to point out the defects in the certificates of registration because of which 
 the election managers rejected the ballots. 
 
 THE ELECTION MANAGERS. 
 
 The election managers in each precinct in the citv of Charleston were Democrats 
 No other party was recognized upon the boards. A"nd while the law of the State is 
 silent as to party representation, all sense of justice and right, equity and fairness 
 would demand such recognition. It is, of course, possible for a board composed 
 wholly of men of one party to properly and honestly discharge the duties of such 
 board, and the law presumes their duties were so discharged; but in this case the 
 rnana,gers of election became the third side in the triangle of fraud that controlled 
 the election in the city of Charleston. By their treatment of the Democratic chal- 
 lenger whereby he was made the authority upon the qualification of voters, by their 
 refusal in many cases to expose the inside of the box before voting began, and the 
 
FIFTY-FOTTKTH CONGEESS. 545 
 
 conduct of a private count at the close, and in some cases by the personal misconduct 
 of the members of the board, the presumption of law in their favor is overthrown; 
 and, construing their action in the light of the conduct of the supervisors of registra- 
 tion and democratic challengers, a conspiracy, involving them all, to defraud the 
 colored voters of their ballots in the interest of the contestee is reasonably inferred. 
 To show the character of this testimony, and that it was common throughout the 
 city of Charleston, the following extracts from the evidence taken from the record 
 are given: 
 
 The committee here quoted a large amount of testimony bearing on 
 these points, and also on instances of fraudulent voting of dead or 
 absent persons. They summed up the case as follows: 
 
 These instances strengthen the claim that the entire election in the city of Charles- 
 ton was tainted with fraud, and that gross irregularities occurred at nearly every 
 precinct. 
 
 The conduct of the supervisors of registration and the managers of election, and 
 the practice of swelling poll lists with the names of the dead and absent voters, was 
 such as to cloud the result with uncertainty and doubt. 
 
 The presence of the challenger and his conduct, although unauthorized by law, 
 would not in itself be sufficient to invalidate the election where such officer acted, 
 but, considered as a circumstance in connection with the known misconduct of the 
 supervisors of registration and the managers of election and the swelling of poll lists, 
 it becomes of great importance in determining whether or not the will of the major- 
 ity of the voters at such precincts is expressed by the returns. Fraud in the conduct 
 of an election may be shown by circumstantial evidence. ( McCreary on Elections, 
 3d ed., sec. 540; English vs. Peelle, Forty-eighth Congress.). , 
 
 It is not necessary, in order to set aside a return for fraud, that the officers of elec- 
 tion participated in the fraud. But if the unlawful acts of third persons are connived 
 at by the officers the effect is the same. (McCreary on Elections, 3d ed., sec. 543. ) 
 
 It is the opinion of the committee that the conduct of these officers was such as to 
 bear the badge of fraud at each of the election precincts of Charleston, except Nos. 
 1 in Ward 2, 1 and 2 in Ward 6, and 1 in Ward 10, and the question then arises 
 whether the returns shall be purged or rejected. 
 
 The authorities are clear and complete that where fraud taints a return it can not 
 be purged, but must be rejected; but a return can be purged only by rejecting ballots 
 illegally cast or wrongfully counted. While in this case legal ballots were unques- 
 tionably kept from the box by the illegal and wrongful acts of persons connected 
 with the machinery of the election, it is impossible to determine the number of these 
 ballots, and the only logical and equitable result is to reject such returns. 
 
 The committee therefore rejected all but four precincts in the city 
 of Charleston. 
 
 Making the corrections and deductions indicated, contestant would 
 have a majority of 434 votes, and the committee therefore presented 
 resolutions declaring him elected. 
 
 The minority disagreed on nearly every point. Thej- said: 
 
 The undersigned, not being able to agree to the report of the committee or its I'on- 
 clusions, feel constrained not only to dissent therefrom, but to assail it as failing to 
 present the case fully and properly for the determination of the House. 
 
 There was no dissent in regard to counting the Haut Gap votes. 
 The issue was on the 20 precincts (out of 24) in the city of Charleston. 
 This city, the minority noted, was never in the old Seventh district, to 
 whose history the majority had referred. The new district was a sea- 
 coast district, of contiguous territory and similar interests. The 
 minority quoted testimony showing that contestant was unpopular 
 with his own party. He had been accused of getting his nomination 
 by unfair means, and was not a resident of the district. Contestee 
 was shown by the returns to have received large majorities at many 
 strong colored precincts against which there was no evidence of fraud. 
 The registration board of C^harleston had thrice moved its office, so as 
 
 H. Doc. 510 35 
 
546 DIGEST OF CONTESTED ELECTION CASES. 
 
 to give everybody a convenient chance to register, and had taken 
 three months to do its work. There was no evidence against the char- 
 acter of its members. All the charges in the testimony against registra- 
 tion officers either related to a forine:- or subsequent board or no time 
 was fixed by the witness. The testimony quoted in the majority 
 report on the general manner of conducting the election was contra- 
 dicted by much other testimony not quoted. The minority quoted 
 some of it by precincts. 
 
 Taking all the testimony given about persons rejected at the polls who were regis- 
 tered, we find that the names of 118 persons are testified to as having registered and 
 were not allowed to vote; that of this number only 36 themselves swore that they 
 were registered, and that Supervisor L. E. Williams proves that of the remainder 
 77 never had been registered. Deducting these 77 from the 118, there remain 41 
 persons as to whom it has been testified that they were rejected as voters although reg- 
 istered. So tl. it, taking the most extreme case against the contestee, there were not 
 in the entire city of Charleston more than 41 registered voters who were refused the 
 right to vote. * * * a careful scrutiny of the whole evidence in this case con- 
 vinces us that the contestee received a substantial majority of the votes cast for Repre- 
 sentative in Congress, and that if every vote of those who offered to vote, with or- 
 without certificates of registration, in the city of Charleston should be counted for the 
 contestant the majority of the contestee would not be materially reduced. * * * 
 
 Unless the presumption is indulged that every man who has a dark skin is a Eepub- 
 lican and votes the Republican ticket at all times and under all conditions and cir- 
 cumstances, even when he swears that he voted otherwise, it will be impossible to 
 give the coilteatant the seat which he claims. 
 
 The minority thei'efore recommended resolutions declai'ing contestee 
 elected. 
 
 The case was fully debated in the House, and the resolutions pre- 
 sented by the minority were lost by a vote of 48 to 144. The resolu- 
 tions presented by the majority were then passed by a vote of 153 to 
 33, and on June 4, 1896, Mr. Murray was sworn in. 
 
 [Report 1567, parts 1 and 2, first session Fifty-fourth Congress.] 
 
 (37) Keakby vs. Abbott. 
 
 Rejected, hallots; recmtnt; informal retm-ns. Re2>()rt for eontefitee, 
 toho retained the seat. 
 
 According to the returns contestee received a plurality of 344 votes. 
 Contestant alleged that several hundred votes in the \^arious precincts 
 of Dallas County, Texas, were cast and not included in the returns, 
 and that they were all cast for him; that in another countv there were 
 no precinct returns, but only tally sheets, which the county commis- 
 sioners had no right to count, and that his party was denied repre- 
 sentation at polls in another county. Sundry minor irregularities were 
 also alleged. A recount of the votes in Dallas Countv and of one 
 precinct in another county showed, according to contestant's claim, a 
 net gain for him of 144 votes. The committee said: 
 
 Many questions arise as to the various ballots concerning which there is a contro- 
 versy between the contestant and contestee, but for the purpose of the decision in 
 this case it is unnecessary to consider them, and the case may be disposed of on the 
 theory that the contention ot the contestant is correct, and that the 144 votes which 
 he claims to have gained should be credited to him. 
 
 The cliarges of nonrepresentation of contestant's (the Populist) party 
 were disproved. The case must then turn on the rejection of the 
 tally-sheet returns counted by the county commissioners. The com- 
 mittee said: 
 
 It will be seen, therefore, that the contestant asks to be awarded a seat to which 
 he was not elected, on the ground that, the officers at certam election precincts 
 
PIFTY-FOUKTH CONGRESS. 547 
 
 neglected to comply with the statutory requirement— that they should make out and 
 deliver to the county judge returns showing the vote polled at the precincts of which 
 they were the managers of the election. * * * 
 
 The contestee took the testimony of one or more officers of each of the election 
 precincts from which no returns were made, and it was proved that the failure to 
 make the returns in each instance was occasioned by the fact .that no blanks upon 
 which returns should have been made were furnished; but as to each precinct proof 
 was made from the tally sheet and from the memory of the officers of election 
 exactly what the vote actually polled for each candidate was. 
 
 It was not contended by the contestant and no effort was made to prove that the 
 vote was in any instance different from that shown by the tally sheet and as testified 
 to by the witnesses. But he contends that it was necessary that there should have 
 been a recount of the ballots cast at each of the voting precincts. Upon this point 
 the committee are agreed that if the contestant had alleged that the vote at any of 
 the precincts from which there were no formal returns was different from that shown 
 by the tally sheet, or if he had charged that there was any fraud on the part of the 
 election officers, it would have been necessary for the ballots cast at such precincts 
 to have been recounted, as they were in the precincts concerning which he made 
 such charges, but it is to be observed that no such contention was made by the con- 
 testant, and no suspicion was raised as to the correctness of the vote as estimated by 
 the commissioner's courts of the different counties and as proved by the contestee. 
 
 The resolutions recommended, declaring contestee elected, passed 
 the House May 4, 1896, without division. 
 
 (38) Yost vs. Tucker. 
 
 Illegally rejected ballots; irregularities. Majority report for con- 
 testee; minority report for contestant. Contestee retained the seat. 
 
 Majority report by Mr. McCall; minority report by Mr. Walker. 
 
 According to the returns, contestee had a plurality of the ballots 
 counted of 892. The officers of election at the various precincts of the 
 district threw out 3,797 ballots as improperly or imperfectly marked 
 (under the Walton Australian ballot law of Virginia). Of these 
 rejected ballots, 1,031 were destroyed by the election officers, and 
 2,776 were preserved and included in the subsequent recount of all 
 the ballots in the district. 
 
 Contestant claimed that the ballots rejected by the election officers 
 were nearly all marked with sufficient accuracy to disclose the inten- 
 tion of the voter, and that the imperfections of the ballots were due 
 to a partisan administration of the law in the interest of contestee. 
 A recount of all the ballots preserved was held, and a description of 
 the character of all the rejected ballots preserved was thus in the record. 
 Testimony was taken showing the nature of the irregularities of some 
 of the ballots destroyed on the night of the election, and this testi- 
 -mony, so far as it was clear enough to establish the facts, was also con- 
 sidered by the committee. The sections of the law describing the 
 ballot and the method of voting were as follows: 
 
 Sec. 2. Each person offering to vote shall deliver a single ballot to one of the judges 
 of election in the presence of at least one of the other two judges. 
 
 Sec. 3. The ballot shall be a white paper ticket containing the names of the per- 
 sona who have complied with the provisions of this act, as hereinafter provided, and 
 the title of the office printed or written as hereinafter provided. None other shall 
 be a legal ballot. 
 
 Sec. 5. It shall be the duty of the electoral boards of the several counties and 
 cities within the State, within thirty days preceding each election, to cause to be 
 printed a number of ballots equal to twice the entire -registered vote of the said 
 county or city. These ballots shall contain the names of all candidates complying 
 with the provisions as above required, printed in black ink, immediately below the 
 office for which they have so announced their candidacy. 
 
548 DIGEST OF CONTESTED ELECTION CASES. 
 
 Sec. 11. Every elector qualified to vote at a precinct shall, when he so demands, 
 be furnished with an official ballot by one of the judges of election selected for that 
 duty by a majority of the judges present. The said elector shall then take the said 
 official ballot and retire to said voting booth. He shall then draw a line with a pen 
 or pencil through the names of the candidates he does not wish to vote for, leaving 
 the name or names of the candidate or candidates he does wish to vote for unscratched. 
 No name shall be considered scratched unless the pen or pencil mark extend through 
 three-fourths of the length of said name; and no ballot save an official ballot above 
 provided for shall be counted for any person. When, as to any office, more than one 
 name remains unscratched, the ballot for that particular office shall be void, but the 
 ballot as to any other office for which only one name remains unscratched shall be 
 valid. He shall fold said ballot with the names of the candidates on the inside and 
 hand the same to the judge of election, who shall place the same in the ballot box 
 without any inspection further than to assure himself that the ballot is a genuine 
 ballot, for which purpose he may, without looking at the printed inside of said bal- 
 lot, inspect the official seal upon the back thereof: Provided, It shall be lawful for 
 any voter to erase any or all names printed upon said official ballot and substitute 
 therein in writing the name of any person or persons for any office for which he may 
 desire to vote. 
 
 The result of the recount showed 12,126 perfect ballots cast for con- 
 testee and 10,512 for contestant. It was agreed that a large number 
 of more or less im|3erfect ballots should be added to these figures. 
 According to the majority, the added ballots would reduce the majority 
 of contestee (892 on the returns or 1,614 on the perfect ballots) to 221 
 or 161 votes; according to the minority, the majority of contestee 
 would be overcome and a majority for contestant of 62 votes shown, 
 which would be further increased to 736 by wholly rejecting two 
 counties and three precincts where the whole conduct of the election 
 was tainted by fraudulent conspiracy. 
 
 Upon 1,169 ballots cast for contestant and 114 cast for contestee the 
 only irregularity was that the caption of the ticket as well as the 
 names of the candidates not voted for was "scratched." These '•cap- 
 tion-marked" tickets were counted by both the majority and the 
 minority. The majority said: 
 
 The general rule, doubtless, is to count those ballots which clearly express the 
 intention of the voter, but the intention must be expressed as provided by law. We 
 do not suppose it would be contended, in view of the requirement of this statute for 
 an official ballot and an express prohibition against counting any other ballot, that a 
 ballot provided by the voter himself and deposited by him should be counted, 
 although it expressed his intention beyond all doubt. The question here is not one 
 which rests on a supposed ambiguity of the ballot, but it is a question of what the 
 laws of Virginia require. 
 
 The intention of the voter, if it can be clearly ascertained from the ballot, will 
 generally be given effect to, and when it is not expressed according to the strict 
 requirements of a statute, such requirements will often be regarded as merely directory 
 unless a failure to comply with them is declared to be fatal to the ballot. But where 
 the statute itself provides that a certain thing shall be done by the voter or his vote 
 shall not be counted, then there can be no question that a provision of that character 
 IS mandatory and that a failure to comply with it is fatal to the ballot. 
 
 In the present case there is no question of the intention of the voter There was 
 only one office to be filled, and it is hardly conceivable that more than 1,200 voters 
 m this district should have left their homes, gone to the polls, entered the booths 
 and gone through the act of voting with the intention of voting to fill no office what- 
 ever. This was the first election at which the Walton law was applied in Virginia 
 and undoubtedly the caption was marked out by reason of the failure on the part of 
 the voter to understand this novel system. Unless clearly required to reject these 
 ballots by the Virginia laws, the committee believes thev should be counted 
 
 The words none other shall be a legal ballot" in section 3 refer to the Australian 
 
 "t; K ?J"°7''^«<1 ^o'" ^ the public expense, and the words in section 11 of the act, 
 
 no ballot save an ofiicial ballot above provided for shall be counted for any person " 
 
 were m the opinion of the committee intended only as a prohibition of the countiAg 
 
 of any other than the ballot provided for by the first sections of the act. The erasurl 
 
FIFTY-FOUBTH CONGRESS. 549 
 
 of the caption did not destroy the character of the ballot as an official ballot, and 
 since there could be no ambiguity or doubt as to what office the voter intended his 
 candidate to fill, since only one office was named on the ticket, the committee is of 
 the opiiiion that these so-called "caption-marked" ballots — 114 forTucker and 1,169 
 for Yost — should be counted. 
 
 There were 54 ballots for contestant and 14 for contestee described 
 as "blotted or blurred" — that is, correctly marked by the voter, in 
 ink, and then folded before the ink was dry, so that a blot or mark 
 was left on the unscratched name. The committee counted these, 
 saying: 
 
 As to the "blotted or blurred " ballots, the most difficult question would be one 
 of fact, as to whether they were "scratched " or "blotted." This question is settled 
 by agreement of the contestant and contestee. It is conceded that they were all 
 properly marked, and in folding them before the ink was dry an impression was 
 made on the names not marked. This is purely accidental and not to be deemed 
 the marking or scratching contemplated by the statute, which is to be done by draw- 
 ing a line " with a pen or pencil " through the names of the candidates for whom 
 the voter does not wish to vote. The contestant's notice of contest contends that 
 similar ballots cast for the contestee should not be counted and does not claim that 
 such ballots should be counted for himself. The committee are of opinion, however, 
 that they should be counted — 14 for Tucker and 54 for Yost — as appears by the record. 
 
 There were also 454 ballots for contestant and 271 for contestee 
 described as " imperfectly marked." The principal difference between 
 the majority and minority of the committee was on these ballots, the 
 majority rejecting and the minority counting them. The majority 
 said: 
 
 The "imperfectly marked" ballots are admitted to be ballots which were not 
 marked as provided in secton 11 of the Walton act. It is provided in that section, 
 quoted above, that after the voter has retired to the booth he shall draw a line with 
 pen or pencil through the names of the candidates for whom he does not wish to 
 vote, leaving the name of the candidate for whom he does wish to vote unscratched. 
 It then says: 
 
 "No name shall be considered scratched unless the pen or pencil mark extends 
 through three-fourths of the length of said name. * * * When, as to any office, 
 more than one name remains unscratched, the ballot for that particular office shall be 
 void, but the ballot as to any other office for which only one name remains unscratched 
 shall be valid." 
 
 It appears very clear that unless a name is marked through three-fourths of its 
 length it is not, within the meaning of the law, to be considered as scratched at all, 
 and therefore more than one name in the so-called "imperfectly marked" ballots 
 remains unscratched upon the ticket, and the law expressly provides that in such a 
 case the ballot shall be void. It is not for the committee to decide whether the 
 provision as to the marking of the ballot is a wise or reasonable one or not. The 
 voter has failed to express his will by the so-called "imperfectly marked" ballot, 
 according to the requirement of the statute, and, failing in that, the statute declares 
 that the ballot is void, in the judgment of the committee, therefore, these "imper- 
 fectly marked " ballots can not be counted. 
 
 The 1,021 destroyed ballots belonged, in general, to the same classes 
 as the above, and the committee counted such of them (naturally only 
 a small part) as were ascertainable by evidence. They said, in general: 
 
 With reference to these ballots, generally, it may be said, in most instances, that 
 tiie Repiiblican judges at the precincts where they were cast concurred with the 
 other judges in treating them as absolutely void and agreed that they should be 
 burned or otherwise destroyed. At a few precincts the Republican or Populist 
 judges objected to their destruction, but the record shows that in almost every case 
 these judges agreed to the count and concurred in the conclusion of the other judges 
 that these ballots were not marked as required by the statute and could not be 
 counted. 
 
 While the committee is of the opinion that in no case should the defective ballots 
 have been destroyed, yet it is of their opinion that in nearly all of the precincts their 
 destruction was made in entire good faith and that such destruction in most of the 
 
550 DIGEST OF CONTESTED ELECTION CASES. 
 
 precinctH does not prove an intention to commit fraud on the part of the election 
 judges. The contestant attempts to prove that some of these ballots were intended 
 for him, and as by their destruction he was prevented from having a recount of them, 
 it is clearly his right to prove by the testimony of the judges, or of any witness, the 
 exact condition of the ballots, and he i9 entitled to the benefit of any that he can 
 show were cast for him. 
 
 The testiinonj^ in regard to each precinct was then discussed in 
 detail, to show the exact result arrived at by the application of this 
 
 Erinciple. The number of ballots proved by sufficient evidence to 
 ave been improperly rejected was found to be insufficient to over- 
 come the remainder of the returned majority of contestee. 
 
 Contestant also claimed that the vote of two counties should be 
 thrown out on the ground that the names on the ballots were "alter- 
 nated " and printed in Old English, German, or script type for the 
 purpose of confusing and misleading illiterate voters. The committee 
 condemned these practices, but as they were committed by the county 
 and not by the precinct officials, they did not reject the returns. They 
 said: 
 
 The statute does not provide the precise order in which the names upon the ballot 
 should be printed nor the kind of type that should be used, but apparently assumed 
 that the officers charged with this duty would be governed by the principles of 
 common honesty and fairness and would not provide a type which was unusual nor 
 juggle with the names for the purpose of confusing the illiterate voter. 
 
 Whether this alternation of names indicated a fraudulent design on the part of the 
 electoral board or an excess of partisan zeal which would hesitate at nothing not 
 positively forbidden by law, it was a trick which can not be defended, and it is 
 incredible that the public officers of one of the great and liistoric Commonwealths 
 of the Union should be guilty of such an unequal and partial administration of the 
 law. * * * The great object of the Australian ballot is to secure the advantages 
 of secret voting. It renders the workingman independent of his employer and 
 operates as a bar to bribery, because whatever corrupt contracts have been made for 
 the purchase of votes the Wibe giver can not know that the vote which he has 
 bought has been delivered. This secrecy is rendered more certain by giving the 
 voter every facility for learning what the ballot contains. 
 
 It is a usual provision in States having this system to require copies of the official 
 ballot to be posted in the polling places, so that each voter may study it for himself, 
 ascertain the exact location of the names of the candidates for whom he wishes to 
 vote, and prepare his own ballot without the aid of the assisting officers, who are, 
 at best, but a necessary evil. While it is a weakness of the Virginia statute- that it 
 does not contain such a provision, it is incredible that it should have a provision so 
 antagonistic to that system of voting, as well as to the fundamental principles of a 
 free government, as to make it a crime for the voters to discuss freely with each 
 other the make-up and the contents of the ballot they voted. Only a positive and 
 clear declaration would bear such a construction. * * * 
 
 If the officers guilty of such conduct had charge of the making up of the returns 
 in the various precincts they would need to be scrutinized with the gravest sus- 
 picion, and they certainly would not be entitled to that weight and effect as evidence 
 which are due to uncontaminated returns. But the elections were in charge of the 
 election judges at the different precincts, and while the fact that these judges were 
 appointed by the county electoral boards is a circumstance which would invite the 
 most careful scrutiny of their conduct, it would be a daring conclusion to infer that 
 the credibility of the returns at all the precincts in this county was destroyed and 
 that all the voters should be disfranchised because the precinct officers had been 
 appomted by a central county board which alternated the names on the ballot. 
 Such a wholesale exclusion of votes would not be warranted, but the evidence of 
 each precinct should be considered separately, as it has been by the committee in 
 the preceding portions of this report. 
 
 The committee is also under the necessity of considering whether and how much 
 the contestant's vote suffered on account of this method of printing. There were 
 349 defective ballots in Amherst County out of a total of 2,705 (p. 124 of the record) 
 a percentage not materially greater tb.an the percentage of defective ballots through- 
 out the whole district, and the relative strength of the parties, as shown at previous 
 elections, appears to have been fairly maintained in this election. 
 
FIFTY-FOUBTH CONGRESS. 551 
 
 Substantially the same observations may be made as to Appomattox County, 
 where there were 153 defective ballots out of a total of 1,431 (p. 160 of the record), 
 and the contestee received a plurality of 49. The committee is of the opinion that 
 the evidence will not warrant the rejection of the votes of these two counties. 
 
 The committee summed up the case as follows: 
 
 In the consideration of this case the committee has been mindful of the fact that 
 this was the first application in Virginia of a new and complicated method of voting. 
 The statute on many points was far from clear and explicit. It had to be construed 
 and enforced in the first instance at the polls by men who were not constitutional 
 lawyers, and who came direct from the ordinary pursuits of life. It was to be 
 expected that there would be contradictory constructions under these circumstances 
 upon the meaning of the law. 
 
 The committee believes that many of the things that appear to have been done 
 contrary to the statute were done in good faith. The great number of defective bal- 
 lots was due largely to the novelty of the system, to carelessness in marking by voters 
 who could read and write, and to some extent by attempts made by illiterate voters 
 to mark their own ballots without asking assistance. If those who could read and 
 write would mark their ballots strictly as the law provides and those who can not 
 would demand the requisite assistance of the constables, any defective ballots would 
 be evidence of fraud on the part of those officers. But the condition of things at the 
 election of November, 1894, will not warrant such a conclusion in the pending case. 
 
 Since the result of all these conclusions still left a majority for con- 
 testee, the committee recommended resolutions declaring him elected. 
 
 The minority held that all the defective ballots on which the inten- 
 tion of the voter was plain should be counted. 
 
 It is not disputed that upon, each of these ballots the intention of the voter is 
 clearly and unmistakably stamped. The sole question in reference to them is 
 whether or not a ballot technically defective shall be counted. Were equity to be 
 considered, there would be no disagreement on this point. The will of the elector 
 was honestly expressed and is clearly shown. But it is insisted that simple honesty 
 and plain intention shall not prevail where there has been failure to comply with 
 merely technical requirements of the statute — that the very foundation principle 
 upon which our representative system is based shall be uprooted because of some 
 immaterial imperfection in the superstructure. 
 
 No rule of law which would deprive a legal elector of his ballot, where his right to 
 vote is unquestioned and his intention to vote for a particular candidate is clearly 
 made out, will be favored by any court or any tribunal, atid no mere technical con- 
 struction of the law will be adopted or even tolerated which will produce such wrong 
 and work such injustice. 
 
 The imperfections on these ballots consisted, generally, of the failure 
 on the part of the voter to erase all the names not voted for by a hori- 
 zontal line touching at least three-fourths of the letters of the name. 
 In some cases the names were scratched with a series of vertical or 
 oblique dashes; in others the line extended the full length of the name, 
 but actually touched only the capitals and extended letters, being too 
 high to cut the smaller letters; in others the line curved up or down, 
 so as to miss over one-fourth of the letters. If all these were counted, 
 in addition to those counted in the majority report, contestant would 
 have a majority of 22. 
 
 After counting all these, there would still remain 2,711 ballots 
 either burned and not proved, or preserved or proved and shown to 
 be too defective to show the intention of the voter. The minority 
 showed that this large proportion of failures was due to a partisan 
 conspiracy and the violation of law on the part of supporters of con- 
 testee. This conspiracy went so far as to invalidate the returns from 
 certain counties and precincts for fraud and to make it morally cer- 
 tain that contestant's actual majoritj' of the votes of legal electors hon- 
 estly attempted to be cast for him was much larger than the computed 
 
552 DIGEST OP CONTESTED ELECTION" .CASES. 
 
 majority based on specific evidence. The minority discussed the evi- 
 dence in detail, counted the destroyed ballots in several precincts in 
 which the' majority had not considered the evidence clear enough, and 
 rejected the vote where the ballots had been printed in German or 
 script letters, the names alternated, and the conduct of the judges of 
 election and special constables, in violation of the law, was such as to 
 show and consummate a conspiracy to deceive and defraud the illit- 
 erate voters. The minority summed up the case as follows: 
 
 In order to deprive this contestant of the seat to which he was honestly and legally 
 elected, this House must absolutely disregard a cardinal rule of law, founded on 
 equity and firmly established by the highest judicial tribunals of the land. 
 
 It must decide that where, by an inspection of the ballot, a voter's honest intention 
 is plainly shown beyond the possibihty of a doubt, the ballot shall be declared invalid. 
 
 It must decide that where a fraudulent conspiracy is entered into by election officers, 
 and thousands of legal voters are thereby disfranchised, the few who escape the effect 
 of the conspiracy must be deprived of their rights under the strictest technical con- 
 struction of statutes. 
 
 It must decide that the decision of the supreme court of Virginia respecting the 
 duties of special constables is a nullity, and that instructions to those constables from 
 partisan officials for partisan purposes are binding. 
 
 It must decide that partisan officials have a perfect right to disfranchise legal voters 
 opposed to thern, and to this end may print ballots in any way and in any language. 
 
 The minority report was signed by Mr. Walker and Mr. Thomas. 
 
 The case was fully debated and closely contested in the House. On 
 January 21, 1897, the substitute recommended by the minority, declar- 
 ing contestant elected, was lost by a vote of 119 to 127. A motion to 
 reconsider was laid on the table by a vote of 120 to 104, and the reso- 
 lutions presented by the majority were then passed by a vote of 118 
 to 47 (190 not voting; 14 counted present and not voting, to make a 
 quorum). So contestee retained the seat. 
 
 [Report 1636, parts 1 and 2, first session Fifty -fourth Congress.] 
 
FIFTY -tfii'lH CONGRESS. 553 
 
 FIFTY-FIFTH CONGRESS, 1897-1899. 
 
 Committee on Elections No. 1. 
 
 Mr. Tatlek, Ohio. Mr. Davenport, Pennsylvania. 
 
 RoYSE, Indiana. Baktlett, Georgia. 
 
 Linnet, North Carolina. Fox, Mississippi. 
 
 Mann, Illinois. Settle, Kentuckj'. 
 
 Mr. Hamilton, Michigan. 
 
 (On December 18, 1897, Mr. Kotse became chairman of Committee 
 No. 2, and Mr". Lawrence, of Massachusetts, took his place.) 
 
 Committee on Elections No. '2. 
 
 Mr. Johnson, Indiana. Mr. Belfokd, New York. 
 
 Clarke, New Hampshire.- Maguire, California. 
 
 Weaver, Ohio. Robinson, Indiana. 
 
 Olmsted, Pennsylvania. Gaines, Tennessee. 
 
 Mr. Davison, Kentucky. 
 
 (On December 18, 1897, Mr. Johnson, of Indiana, at his own request, 
 was excused, and Mr. Royse, of Indiana, was appointed chairman.) 
 
 Committee on Elections No. 3. 
 
 Mr. Walker, Virginia. -Mr. Cochrane, New York. 
 
 Codding, Pennsylvania. Miers, Indiana. 
 
 Mesick, Michigan. Burke, Texas. 
 
 KiRKPATRicK, Pennsylvania. Brundidge, Arkansas. 
 
 Mr. Crumpacker, Indiana. 
 
 (On December 18, 1897, Mr. Codding was excused and Mr. Boutell, 
 of Illinois, was appointed in his place.) 
 
 (The committees were not appointed until the legislative day July 
 22, actual day July 24, 1897.) 
 
 Committee No. 1. 
 
 (1) Thomas H. Clark vs. Jesse F. Stallings, Alabama. 
 
 (2) G. L. Comer vs. Henry D. Clayton, Alabama. 
 
 f3) William F. Aldrich m. Thomas S. Plowman, Alabama. 
 
 (4) Grattan B. Crowe vs. Oscar W. Underwood, Alabama. 
 
 (5) Jonathan S. Willis vs. L. Irving Handy, Ddaware. 
 
 (6) W. Godfrey Hunter vs. John S. Rhea, Kentucky. 
 
 Commdttee No. 2. 
 
 (7) Samuel E. Hudson vs. William McAleer, PennsyVvania-. 
 
 (8) W. S. Vanderburg w. Thomas' H. Tongue, Oregon. 
 
 (9) Ben L. Fairchild vk. William L. Ward, Ne^n York. 
 
554 DIGEST OF CONTESTED ELECTION CASES. 
 
 (10) William E. Ryan vs. Henry C. Brewster, New York. 
 fllj Armand Romain vs. Adolph Meyer, Louisiana. 
 
 (12) Joseph Gazin vs. Adolph Meyer, Louisiana. 
 
 Committee No. 3. 
 
 (13) R. T. Thorp vs. Sydney P. Epes, Virginia. 
 
 (14) Richard A. Wise vs. William A. Young, Yirgvnia. 
 
 (15) Josiah Patterson vs. E. W. Carmack, Tennessee. 
 
 (16) John R. Brown vs. Claude A. Swanson, Virginia. 
 
 (1) Clark vs. Stallings. 
 
 Case ahandoned. C'ontestee retained seat. 
 
 Report by Mr. Tayler. 
 
 The body of the brief report is as follows: 
 
 The Committee on Elections No. 1, to whom was referred the contested election 
 case of Thomas H. Clark v. Jesse F. Stallings, from the Second Congressional district 
 of Alabama, respectfully report that the contestant took no steps after filing his 
 notice of contest, and appeared before the committee on January 14, 1898, and stated 
 that he had no desire to further press his contest. 
 
 The resolutions recommended were passed on January 18, 1898, 
 without division. 
 
 [Report 188, second session Fifty-fifth Congress.] 
 
 (2) Comer vs. Clayton. 
 
 Case abandoned. Contestee retained seat. 
 
 Report by Mr. Linney. 
 
 After the taking of testimony in this case had proceeded for some 
 time, contestant formally abandoned the case and tiled a statement to 
 that effect with the papers in the case. The committee reported these 
 facts and recommended resolutions declaring contestee elected, which, 
 on January 19, 1898, were passed without division. 
 
 [Report_195, second session Fifty-fifth Congress.] 
 
 (3) Aldrich vs. Plowman. 
 
 Fraud. Majority report for contestant; mioiority report for con.te,itee. 
 Contestant seated. 
 
 Majority report by Mr. Tayler; minority report by Mr. Bartlett. 
 
 According to the returns, contestee had a majority of 2,967, all of 
 which was in the two counties brought in contest, and nearly all of 
 which was in Dallas County. Contestant carried the ' ' white counties. " 
 The committee held that in Dallas County there was a conspiracy to 
 carry the election, for contestee by fraud and that there were certain 
 fraudulent precincts in one other county. Under the law inspectors 
 of election were required to be of opposite political parties, and there 
 were required to be two "markers" of opposite parties to assist illit- 
 erate or physically disabled voters. In regard to the inspectors and 
 "markers" the provision was: 
 
 Clerks and markers must be appointtjd from a list of persons, not less than six nor 
 more than ten m any one beat, -nho may be suggested for that purpose by the duly 
 constituted authorities, respectively, of tlie opposing political parties having candi- 
 
FIFTY-FIFTH CONGRESS. 555 
 
 dates to be voted for at the election. Every illiterate or physically disabled elector 
 shall be permitted to have the assistance of a marker, who may be selected by him 
 from the number of markers who have been appointed by the inspectors. Any 
 inspector who may refuse to appoint markers from the opposing parties, so as to 
 give every illiterate and physically disabled elector the opportunity to select a 
 marker of his own political party, shall be guilty of a misdemeanor, and must, on 
 conviction, be fined not less than one hundred dollars nor more than five hundred 
 dollars. It is the sense of this section that the opposing political parties shall each 
 have the right to suggest a list of names, not less than six or more than ten persons, 
 to act as markers and clerks. If no lists are furnished, the inspectors shall appoint 
 clerks and markers from opposing political parties. 
 
 The committee found that this law had been- violated throughout 
 Dallas County. They said: 
 
 In Dallas County the appointing officers were all Democrats. Notwithstanding 
 the statutory requirements, they did not appoint a single Republican or Populist 
 inspector of election. Lists were submitted to them of suitable men in each precinct — 
 one by the so-called regular Republican nominee for Congress, and one joined in by 
 the chairman of the People's Party of Dallas County, the chairman of the Republi- 
 can party of Dallas County, the chairman of the Aldrich campaign committee, the 
 member of the Republican executive committee for the Fourth district, and Mr. 
 Aldrich himself. 
 
 Except in two or three instances, where by mistake a Democrat's name wa§ given 
 in a list of three or four, not a single person was appointed inspector out of ' about 
 two hundred names thus proposed by the opposition to Democracy. At the opening 
 of the polls, the friends of contestant at the several polling places submitted, in 
 accordance with the law, names of suitable persons for markers and clerks. In a 
 few instances a marker was appointed, and in one precinct a clerk. 
 
 Some pretense was niade, here and there, of appointing opposition inspectors, 
 clerks, and markers by naming persons recommended by one Crocheron, a venal 
 negro who admitted his depravity, and worked for Plowman, or by appointing 
 so-calied representatives of the Gold Democratic candidate, but as only 111 votes 
 were polled for other candidates than Plowman and Aldrich the pretense is apparent. 
 
 The fact is, and is constantly in evidence, that the machinery of election in prac- 
 tically every precinct of Dallas County was organized against the Republicans and 
 Populists, and was so organized in pursuance of a conspiracy to absolutely control 
 the casting, counting, and returns of the votes. It was successful. 
 
 The committee analj'zed the testimony in regard to eight of the pre- 
 cincts in Dallas County. In some of the precincts the entire registry 
 list was returned on the poll book as voting, all but the first part (cov- 
 ering the number shown by other testimony to have voted) being in 
 the exact order of the poll list, including alphabetical parts, or in some 
 simple and systematic rearrangement of it. In others it was shown 
 by the testimon}' of the markers or the voters that more votes were 
 cast for contestant than were returned for him, or that the returns 
 showed more votes than were actually cast. The committee summed 
 up its conclusions as to this county as follows: 
 
 The result of our investigation is the conclusion that every precinct in Dallas 
 County in which a contest is made is so fatally tainted with fraud that the returns 
 therefrom must be entirely disregarded, and that we can count only such votes as 
 the testimony in the case shows were actually cast. In doing so we considered as 
 proved only those which were shown by direct testimony to have been cast, as when 
 the voter himself, or a marker, testified. We have counted none which depend 
 upon hearsay testimony or conjecture. The tabulated statement, showing the resiilt 
 of our recount, appears later in this report. 
 
 It is not necessary to cite authorities in support of the above proposition of law 
 involved in this conclusion. It is axiomatic and elementary. 
 
 In Talladega County there was no general conspiracy shown, but 
 the returns from 3 precincts were tainted with frauds similar to those 
 found in Dallas County, and the committee counted only the votes 
 proved aliunde. 
 
556 DIGEST OF CONTESTED ELECTION CASES. 
 
 The committee then presented a tabular statement (covering- also 
 the precincts in Dallas County not discussed in detail), showing a 
 majority for contestant on the uncontested returns and the proved 
 votes of the contested returns of 542 votes. 
 
 The minority agreed to the rejection of 3 of the 8 discussed polls in 
 Dallas County^ but. found the evidence insufficient or contradictory as 
 to the other 5, and pi'oof of more votes aliunde in the 3 than were 
 counted by the majority. As to the other 23 precincts, they held that 
 there was no reason to reject them, and no justification of the conclu- 
 sion of general conspiracy in charges of fraud covering only a small 
 part of the precincts. Thej' said: 
 
 The demand of the majority report that, because the testimony concerning 8 of 
 the precincts in Dallas County would seem to them to justify the exclusion or rejec- 
 tion of the returns therefrom as unreliable, but leaving all of the remaining 23 pre- 
 cincts unchallenged, the returns as a whole from Dallas County must be rejected, is 
 absolutely untenable and unprecedented. There are no charges, nor is there any evi- 
 dence, tending to show anything that would indicate that the returns from the 23 
 uncontested precincts are not entitled to full confidence and all the prima facies given 
 them by the law. The official returns of Dallas County, therefore, should not and 
 ought not to be rejected as a whole, but each precinct should be judged by its own 
 acts and stand upon its own merits. Such an act is unwarranted by law, and such is 
 not the course of procedure justified by the authorities or by the precedents in Con- 
 gressional cases. The only just and proper course in this case is to deal with the 
 returns by precincts; and where it is shown by competent and sufficient evidence 
 that the returns from a precinct are overturned by proof of fraud, then the correct 
 rule is to permit proof aliunde of the vote cast. * * * 
 
 The pretense of the contestant, which seems to have received a quasi sanction by 
 the majority report, that there was a conspiracy extending over the Congressional 
 district to defraud the contestant in various ways and by various methods, is hardly 
 worthy of notice by us. If there is any testimony in tlie record justifying the belief 
 that there were uniform or universal fraudulent practices or improper methods even 
 in the precincts above named — which is all that can be claimed for the contestant — 
 we are not able to find it. The very fact that such methods or fraudulent practices, 
 if any, were confined to those 8 designated precincts destroys the theory of a con- 
 spiracy. It is evident that any such conspiracy would have and must have extended 
 either to all the precincts in a single county or to a large majority of the precincts in 
 the district; but it is admitted by the majority report, and by the contestant, that 
 in the county of Dallas only 8 precincts are affected by it, and only 3 in Talladega 
 County, and none in any of the other counties or precincts of the district. 
 
 It is idle and improper, therefore, to claim, or ask the House to infer, that there 
 was any conspiracy whatever, and we shall pass that branch of the case without 
 further comment, as being unworthy of our notice. 
 
 The minority found, further, that there was in fact a fair division 
 of the election officers between the two parties in nearly all the pre- 
 cincts in Dallas County. Contestant was not the regular Republican 
 nominee, and was a Populist. It was not surprising, therefore, that 
 he should claim that some of the Republicans appointed did not repre- 
 sent him personally. 
 
 The minority wentoverthe precincts discussed in the majority report 
 in detail, reaching the conclusions above indicated, and showed that in 
 one county all the election officers were Populists, which would at 
 least balance contestant's claim as to Dallas County, and that in one 
 precinct there was fraud in the interest of contestant. - 
 
 According to the findings of the minority, the contestee was elected 
 by a majority of 2,828. 
 
 The case was fully debated in the House, and the substitute resolu- 
 tion presented by the minority was lost by a vote of 124 to 144. The 
 majority resolution declaring contestee not elected was passed by a 
 vote (on division) of 129 to 114, and the resolution declaring contestant 
 
FIFTY-FIFTH CONOBESS. 557 
 
 elected by a vote of 142 to 112. Mr. Aldrich was then sworn in, on 
 February 9, 1898. 
 
 [Report 284, second session Fifty -fifth Congress.] 
 
 (4) Crowe vs. Underwood. 
 
 Fraud. Report for contestee, who retained seat. 
 
 According to the returns, contestee had a majority^ of 5,565 and a 
 plurality of 7,811 votes. Contestant charged fraud in a large number 
 of counties and precincts, and the committee found it proved in some, 
 but not in enough to change the result. They therefore recommended 
 resolutions declaring contestee elected. The minority agreed to the 
 conclusion, but not to the statements of fact. 
 
 The resolutions recommended, confirming contestee in his seat, were 
 passed on March 2, 1898, without division. 
 
 [Report 597, second session Fifty-fifth Congress.] 
 
 (5) Willis vs. Handy. 
 
 Case abandoned. Contestee retained seat. 
 
 Report by Mr. Tayler. 
 
 The body of the brief report is as follows: 
 
 The contestee, by the ■ official returns, received 15,407 votes and the contestant 
 11,159. A notice of contest was served on the contestee, but the contestant took no 
 further formal action. He appeared before your committee and declared his opinion 
 that the contestee's seat could not be successfully attacked and that he had abandoned 
 the contest. 
 
 The resolutions recommended, confirming contestee in his seat, were 
 passed without division on April 30, 1898. 
 
 [Report 1239, second session Fifty-fifth Congress.] 
 
 (6) Hunter vs. Rhea. 
 
 Case abandoned. Contestee retained seat. 
 
 Report by Mr. Davenport. 
 
 The body of the brief report is as follows: 
 
 By the official returns the contestee was given a majority of 337; the contestant 
 claimed, on his theory of the case, to be elected by a majority of 468. 
 
 The issues relate chiefly to questions involving the qualifications of certain voters, 
 upon which differences of opinion naturally arise among honest judges of election 
 and good lawyers. 
 
 The testimony in the case was printed and briefs were filed with the committee. 
 Before the case was set for hearing, the contestant ajjpeared before the committee 
 and declared that he no longer desired to prosecute his contest; that since he began 
 the same he had been appointed by the President minister of the United States to 
 Guatemala. He has entered upon and is now discharging the duties of that office. 
 
 , Your committee is of opinion that it does not lose jurisdiction of the case by reason 
 of this announced purpose of contestant to desist from the contest, but can proceed, 
 if it so desires, to hear and report upon it as in other cases. 
 
 'It should be explained that the word "majority" is frequently used throughout 
 this digest in its popular sense, as equivalent to "plurality," except where, as in the 
 present case, the difference is large, or, as in the Rhode Island cases, the distinction 
 is important. 
 
558 DIGEST OF CONTESTED ELECTION CASES. 
 
 But in the absence of any suggestion of collusion between the parties, in view of 
 the character of the issues raised, and aided by the facts already recited, we do not 
 deem it necessary to examine in detail the voluminous record in the case, and deem 
 it our duty to confirm contestee's title to the seat he now holds. 
 
 The resolution recommended was adopted by the House on May 17, 
 1898, without division. 
 
 [Report 1356, second session Fifty-fifth Cong-ress.] 
 
 (7) Hudson o-s. McAleer. 
 
 Case not made out. Leave to tahe further testimony denied. Cort- 
 testee retained seat. 
 
 Report by Mr. Royse. 
 
 Contestant was an independent candidate and received a very small 
 minority of the votes in the district. He did not claim the election for 
 himself, but alleged that he could have proved that contestee was not 
 elected if he had not been stopped in taking testimony bj' the riotous 
 and violent conduct of certain citizens of the district. He therefore 
 asked for further time to take testimony, and requested that a subcom- 
 mittee be sent to the district to take the testimony. He filed his own 
 affidavit in support of the motion. The committee said: 
 
 It is nowhere averred in the affidavit that these facts and the evidence to sustain 
 them have been discovered since the time provided by the statute for taking testi- 
 mony has expired. On the contrary, the affidavit carries upon its face a very strong 
 inference that all these facts were known to the contestant at the time he filed his 
 notice of contest, and that all his evidence tending to support the same was then 
 known and accessible to him. 
 
 As we understand contestant's application, it is not based upon the ground that the 
 evidence he now desires leave to take has been discovered since the time expired, 
 but upon the reason that he made every possible effort to procure it, but was pre- 
 vented by the riotous and violent behavior of certain citizens of the district at the 
 place where he was compelled to take the same. 
 
 If such a case were made out, we would have no hesitancy in recommending that con- 
 testant's application be granted. The honest election of each member of this House 
 is a matter of the highest importance, both to this body and to the people at large. 
 When a question is raised as to the election of one of its members, this House should 
 stand ready to make a thorough investigation, and promptly expel the member 
 whose seat was obtained by fraudulent or dishonest methods, !^^o one should be 
 permitted to prevent or impede such investigation. Any attempt of this kind should 
 be promptly and vigorously rebuked. It can not be assumed that such an investi- 
 gation has been hindered or prevented. Until the contrary appears it must be pre- 
 sumed that the authority of Congress and the ^encies provided to make such inquiry 
 have been respected and obeyed. 
 
 If contestant has been prevented by riot and violence from procuring his testimony, 
 such fact should be shown in some satisfactory way, and that the contestant was In 
 no way to blame for it. Upon this subject the atfldavit is entirely silent. We are 
 furnished no proof of this but the unsworn statement of contestant's counsel, which 
 is denied by counsel for contestee; and we do not feel that this is sufficient. We 
 therefore recommend that the application to take further testimony be denied. Con- 
 testant admitted before the committee that he was not elected" to the Fifty-fifth 
 Congress from this district. The utmost of his contention was that contestee also 
 was not elected. It is not insisted by contestant that this is shown by the evidence 
 already taken; and even if it were we could not agree with him. 
 
 The resolutions recommended, confirming contestee in his seat, were 
 passed by the House on February 5, 1898, without division. 
 [Report 354, second session Fifty-fifth Congress.] 
 
FIFTY-FIFTH CONGRESS. 559 
 
 (8) Vanderbubg w. Tongue. 
 
 Irregularities; illegal votes; leave to take further testimony denied. 
 Contestee retained the seat. 
 
 Report by Mr. Royse. 
 
 The returns from the district were not in evidence, but it was admit- 
 ted that contestee was elected on the face of the returns. Contestee 
 admitted the charges of irregularities in most of the precincts of one 
 county, but as the committee did not have the vote of that county 
 before them, they could not tell what effect the irregularities had on 
 the vote. There was also evidence as to one precinct in another 
 county, showing that some persons, not over 25, voted illegally, and 
 that there were other irregularities. Contestant asked for leave to 
 take further testimony, but as he failed to show that he had been rea- 
 sonably diligent in procuring testimony within the statutory time, the 
 committee recommended that the application be denied. 
 
 The resolutions recommended, declaring contestee elected, were 
 passed by the House on February 14, 1898, without division. 
 
 [Report 437, second session Fifty -fifth Congress.] 
 
 (9) Faibchild vs. Ward. 
 
 Wrong name on official iallot in party cohi'iim. Majority report for 
 contestee; report In/ Mr. Gaines for contestant. Contestee retained the 
 
 Majority report by Mr. Roj'se; dissenting report by Mr. Gaines. 
 
 Contestant and contestee were both Republican candidates, nominated 
 by conventions professing to be the regular Republican conventions. 
 Contestant had represented the district in the previous Congress. 
 There was a dispute as to which name should be placed in the party 
 column on the official ballot. Contestee's name was placed in the reg- 
 ular column and contestant's in an independent column, and at the elec- 
 tion contestee received 30,709 votes and contestant 770. Contestant 
 alleged that he was in fact the regular nominee, and that his name 
 should have been placed in the regular column, and charged that con- 
 testee had wrongfully and fraudulently procured his name to be placed 
 in the Republican column by tricks, devices, and abuse of the process 
 of the courts. He maintained, first, that the votes cast and counted 
 for the contestee under the Republican emblem be counted for him, 
 and that he be therefore given the seat; or, second, that if the votes 
 could not be so counted, then the election should be declared void. 
 Several of the committee seem to have been of the opinion that Mr. 
 Fairchild was in fact the regular nominee, but all but Mr. Gaines sub- 
 scribed to the report, holding that Mr. Ward, having actually received 
 the majority of the votes, was elected and entitled to retain the seat. 
 
 There had been two Republican committees appointed in the district, 
 one in 1894 and the other, claiming to succeed it in authority, in 1896. 
 Both committees called conventions, and contestant was nominated by 
 the convention called by the 1894 committee and contestee by the con- 
 vention called by the 1896 committee. Both candidates filed with the 
 secretarj'^ of state certificates of nomination. The secretary of state 
 decided in favor of contestant. Contestee then brought proceedings 
 before Judge Edwards, a justice of the supreme court of the third 
 
560 DIGEST OF CONTESTED ELECTION CASES. 
 
 judicial district, to review the decision of the secretary of state. The 
 review was heard, a question of jurisdiction being heard and over- 
 ruled, and the decision of the secretary of state was reversed and con- 
 testee declared the regular nominee. Contestant appealed to the 
 appellate division of the supreme court of the third judicial depart- 
 ment, which affirmed the decision of Justice Edwards. The secretary 
 of state then directed that the name of contestee be placed on the 
 official ballots, and the election was held, with the result above stated. 
 Subsequently an appeal to the court of appeals was heard and the 
 decision of the courts below was reversed on the question of jurisdic- 
 tion, the court holding that as the parties to the case resided and the 
 district was situated in the second judicial district the proceedings 
 should have been brought in this instead of the third district. The 
 court, however, on account of the possible importance of the issue at 
 subsequent elections, went on to consider the merits of the case, and 
 held that contestant was the regular nominee and should have been 
 placed as such on the ofiicial ballot. 
 
 The committee stated contestant's alternate claims, to ha\'e the regu- 
 lar Republican votes counted for himself or to declare the election 
 void, and said: 
 
 Both these propositions assume, it must be remembered, that contestant was the 
 regular nominee of the Republican party and entitled to have his name go on the 
 ballot as such, and that he was deprived of that right wrongfully, and that, too, by 
 a void decision. It will not be seriously contended that if he was deprived of this 
 right by a decision that was simply erroneous, but not void, it would authorize us 
 to transfer to him the votes counted for contestee, or that it would invalidate the 
 election. 
 
 It is by no means clear from the evidence that contestant was the regular nominee 
 of the Republican party. The evidence on this point is in an irreconcilable conflict. 
 There is much to support the claims of each of these parties. Your committee is 
 unable to agree as to which one was entitled to have his name placed upon the ballot 
 as the Republican candidate. 
 
 Contestant insists that the decision of the court of appeals practically settles the 
 whole controversy in his favor. While admitting that an opinion of a court of such 
 high standing is entitled to great respect, yet we do not feel that it has all the effect 
 which contestant thinks should be attached to it. When this court held that Jus- 
 tice Edwards had no jurisdiction of the proceedings to review, it ousted its own juris- 
 diction to render an opinion upon the merits of the case which would be conclusive 
 upon the parties. Whatever it said upon that subject was clearly obiter dictum. 
 
 It is clear to us that the court did not contemplate that its decision should in any 
 manner affect the election already held. 
 
 And in any case the committee could not alter the result of the 
 election. 
 
 If we were to assume that contestant was the regular nominee of his party, and 
 that he had been deprived of the right to have his name go upon the oificiar ballot 
 in the Republican column by a decision that was void, because of the want-of juris- 
 diction in the justice of the supreme court who made the same, still we do not 
 believe that we would be authorized to count for him the votes cast for Mr. Ward; 
 nor do we think we could declare the election void. 
 
 Contestant had himself advised Republicans to vote the straight 
 Republican ticket, with contestee's name on it, and all the cii-cum- 
 stances were generallv known and understood. 
 
 There was no deception practiced upon the Republican electors in the district. 
 There is no proof but that all that had been done with reference to the printing of the 
 ballot was fully known to all of them. The means of obtaining this information 
 was ample and within their reach. 
 
 It must therefore be presumed, in the absence of evidence to the contrary, that 
 when they went into the polling places to vote they knew Mr. Ward's name was on 
 
FIFTY -FIFTH OONGEESS. 561 
 
 the ballot as the regular nominee of the Republican party, and that if they voted the 
 straight Republican ticket their votes would be counted for him. The evidence of 
 several of these voters is in the record. They all say that, while they would have 
 preferred to vote for Mr. Fairchild, yet they knew that Mr. Ward's name was on the 
 ballot in the Repubhcan column; that they supposed that the decision of Justice 
 Edwards and the supreme court had settled that Mr. Ward was the regular nominee 
 of the Republican party, and they voted for him accordingly. * * * 
 
 It is clear that the electors who voted the Republican ticket never intended that 
 their votes should be counted for any other person as Representative in the Fifty-fifth 
 Congress than Mr. Ward. They could only make known their choice through the 
 ballot they voted. There is no other lawful method of ascertaining the wishes of the 
 electors. In the absence of deception by means of which the elector is made to 
 unwittingly vote for some one he never intendeii to vote for he can not be heard to 
 say that this ballot does not express his choice. This rule is essential to the mainte- 
 nance of the ballot system, and must be adhered to so long as we use this method of 
 registering the wishes of the elector. 
 
 The electors acquiesced in the decision of Justice Edwards and the action of the 
 secretary of state, and voted the ballot thus prepared for them with a clear under- 
 standing of what they were doing. When they placed their cross in the circle at the 
 head of the Republican column they thereby said that William L. Ward is the person 
 whom we desire shall represent us in the Fifty-fifth Congress. Now, upon what 
 authority can we say that the voter did not intend all that his ballot expresses? To 
 do this we would be obliged to go outside of his ballot and ascertain his choice by 
 means other than through his ballot. This is contrary, not only to the law of the 
 State wherein this election was held, but the law of the United States. The voters 
 of this district did not say through the ballot that it was their wish that contestant 
 should represent them in the Fifty-fifth Congress; hence it would be a clear violation 
 of law to declare him elected. 
 
 Regard must also be had to the Republican electors who actually desired the election 
 of contestee. 
 
 The committee, moreover, were of the opinion that Justice Edwards 
 did have jurisdiction to review the decision of the secretary of state. 
 
 But we can not agree with the court of appeals that Justice Edwards did not have 
 jurisdiction of the proceedings to review the decision of the secretary of state. By 
 the express terms of the statute jurisdiction of the subject-matter was conferred upon 
 every justice of the supreme court — and Judge Edwards was a justice of that court. 
 The only question left in doubt was in what judicial district the proceedings should 
 be brought. 
 
 Upon this subject the statute is uncertain. It was by means of construction and 
 a balancing of the considerations which in its opinion must have governed the legis- 
 lative mind that the court reached the conclusion that the proceedings should be 
 brought in the district where the contestant and contestee resided. It was of opinion 
 that the legislature did not intend that the parties substantially interested in the 
 controversy should be compelled to travel lon^ distances outside of the districts 
 where they resided in order to litigate such questions. 
 
 As the proceedings in the case in hand were not brought in the judicial district 
 where contestant and contestee resided, it therefore held that Justice Edwards had 
 no jurisdiction. It will readily be seen that all this reasoning has reference only to 
 jurisdiction over the real parties to the controversy and has no application to the 
 jurisdiction of the supreme court over the subject-matter. So far as the controversy 
 is concerned, it could be heard in one district as well as in another. 
 
 The reasoning by which the court of appeals reached the conclusion that Justice 
 Edwards did not have jurisdiction looks only to the convenience of the real parties 
 to the controversy. The right to have the proceedings brought in the district where 
 these parties resided is one they can insist upon or not, as best suits their pleasure. It 
 can be waived by them if they so desire, and, when it is so waived, the jurisdiction 
 over their persons is just as complete and the judgment the court renders just as 
 binding as if the proceedings had been brought in the district of their residence. 
 The want of jurisdiction over the parties must be taken advantage of at the first 
 opportunity, and if this is not done it is deemed to have been waived. After it has 
 once been waived it can not afterwards be called in question. These rules are ele- 
 mentary and so well established and are so familiar "as to require no citations of 
 authority. When they are applied to the case as it stood before Justice Edwards 
 there is no doubt about his jurisdiction. 
 
 H. Doc. 510 36 
 
562 DIGEST OF CONTESTED ELECTION CASES. 
 
 Mr. Ward, by the act of bringing the proceedings, had submitted his person to the 
 jurisdiction of Justice Edwards. He could not thereafter complain of a jurisdiction 
 which he himself had invoked. The secretary of state did not object to the assumed 
 jurisdiction of Justice Edwards over his person. He thereby waived his right to 
 question it. 
 
 It has been seen that Mr. Fairchild on his own motion was made a party to the 
 proceedings. He thereby submitted his person to the jurisdiction of Justice Edwards. 
 He could not have been made a party without doing this. His application to be 
 made a part\' was without any reservation. He can not come into the case by his 
 own free will and then be permitted to say that he is wrongfully in. He was not a- 
 party to the proceedings until made so at his own request. In the first instance Jus- 
 tice Edwards was not attempting to exercise any jurisdiction over his person. It is 
 true that after he was admitted as a party to the proceedings he did question the 
 jurisdiction of Justice Edwards, but it was then too late to take advantage of that 
 fault. He had waived his right to insist upon this by becoming a party to the suit 
 at his own request. Hewasthenwithin the jurisdiction of Justice Edwards./ * * * 
 We therefore think that Justice Edwards had jurisdiction over the proceedings to 
 review, and over all the parties thereto, and possessed full power and authority to 
 make the order issued by him. It must follow that the order so made was binding 
 on the contestant, the contestee, and the secretary of state. 
 
 The order was at least in force when the election wa.g held, and a 
 reversal of it afterwards could not affect the election. All proceed- 
 ings under the law were required to be summary, and to be complete 
 before a certain date preceding the election. It was evidenth' dis- 
 tinctly contemplated that even an erroneous decision, unless reviewed 
 by this date, must stand. The legislature — 
 
 knew, of course, that suci erroneous decisions were possible, but it felt that greater 
 good would result from abiding by them than by overturning an election because of 
 such mista,ken decision. Any other course would involve the results of an election 
 in uncertainty. 
 
 But even if Justice Edwards did not have jurisdiction of the proceeding before him 
 the invalidity of his order would not render the election void unless it should further 
 appear that the decision was erroneous and that a number of voters equal to con- 
 testee' s plurality were deceived thereby. 
 
 The committee therefore recommended resolutions declaring con- 
 testee elected. 
 
 Mr. Gaines presented an elaborate dissenting report, signed only by 
 himself, arguing that in a State like New York, where the names of 
 candidates are printed in party columns and it is provided that the 
 voter can vote a straight ticket by making a single mark at the head 
 of the column, the right to be placed in the correct column is an 
 important legal right of candidates, and the right to vote for their 
 party nominee as such, and not as an independent candidate, is an 
 important legal right of the voter. Contestant had been deprived of 
 this right by the arbitrary conduct of contestee and the misuse of the 
 processes of law. He would unquestionably have been elected if his 
 name had been correctly placed, and the evident intention of the voters 
 who voted the straight Republican ticket should be carried out, bv 
 counting their votes for the candidate who was in fact the legal 
 nominee. 
 
 The case was fully debated in the House, and the resolution that 
 contestant was not elected was passed liy a vote of 162 to 30. The 
 resolution declaring contestee elected was then (on April 11, 1898) 
 passed by a vote of 138 to 42. 
 
 [Report 798, second session Fifty-fifth Congress.] 
 
FIETY-FIFTH CONGRESS. 563 
 
 (10) Ryan w. Brewster. 
 
 Ballot machine used. Contestce retained the seat. 
 
 Report by Mr. Maguire. 
 
 The only substantial allegation in the case was that the voting in the 
 city of Rochester was done by a device known as the "Myers ballot 
 machine," instead of by written or printed ballots. There was no 
 charge or evidence that anyone was deprived of his vote or otherwise 
 injured by the use of the machine. There were ballots provided 
 which anyone could have used if he chose to do so (but none did). 
 Contestee also had a large majority in the district outside of Rochester. 
 "The views above expressed render it unnecessary to t)ass upon the 
 legality of the Myers ballot machine." 
 
 The committee therefore presented resolutions declaring contestee 
 elected, which on March 30, 1898, passed the House without division. 
 
 [Report 892, second session Fifty-fifth Congress.] 
 
 (11) RoMAiN vs. Meyek. 
 
 Fraud; illegal voting . Report for contestee, vjJuj retained the seat. 
 
 Report by Mr. Olmsted. 
 
 Contestee, who was the Democratic candidate, received 10,776 votes. 
 There were two Republican candidates — Livaudais, the regular nomi- 
 nee (who had practically withdrawn), who received 401 votes, and con- 
 testant, independent Republican, nominated on petition, who received 
 4,022. Contestant claimed that he had been given no representation 
 at the polls in the parish of Orleans. Under the law, all parties cast- 
 ing as much as 10 per cent of the vote at the previous election were to 
 be given a representative, to be selected from lists "furnished by each 
 of the several political parties and nominating bodies." The chairman 
 of the executive committee of the Republican party had submitted the 
 legal lists and the Republican appointments were made from them. 
 Contestant had also submitted a," list of citizens of Republican faith," 
 but the committee found that the 100 voters who signed contestant's 
 nominating petition were not a political party that had cast 10 per 
 cent of the votes at the preceding election. If they were, they and not 
 contestant would have been authorized to submit a list, and the list 
 would have had to be a list representing themselves, not, as proposed, 
 a list representing the Republican party. The regular Republican 
 candidate was not seeking the election, and was favorable to contestant, 
 but he had not legally withdrawn or his name would not have been on 
 the official ballots. The law contemplated party and not personal 
 representation on the election boards. 
 
 Contestant also claimed that some of the election commissioners were 
 not appointed the required thirty days before the election, but the evi- 
 dence showed that most of them were, and explained the slight delay 
 in appointing the rest. "Delay in appointing commissioners or 
 inspectors does not vitiate an election held by them, otherwise it would 
 be in the power of the board of supervisors to defeat every election 
 by delaying such appointments. " 
 
 A new law had gone into effect in the city of New Orleans, requiring 
 the redistricting of the city into many small precincts, of not over 200 
 votes each, "the boundaries and precincts to be fixed as above not 
 
564 DIGEST OF CONTESTED ELECTION CASES. 
 
 to be changed within three months prior to any general election." 
 The first I'edistricting was not entirely accomplished until within one 
 month prior to this election, but the committee held that the three 
 months limit of the law did not apply to the first establishment of the 
 districts. Some inconvenience was doubtless caused, but there was no 
 evidence how much, or that it could have changed the result. 
 
 There were some irregularities in the sealing and delivery of the 
 packages of official ballots, but nothing which the committee regarded 
 as essential. There was also proof that one official ballot was in unau- 
 thorized hands before the election, and evidence that some others may 
 have been, but there was no indication that any harm was done. In a 
 few precincts the official cards of instruction maj' not have been 
 posted, but there was no showing that any votes Were lost. 
 
 The principal contention of contestant was that 14,000 votes were 
 cast in the city of New Orleans on fraudulent registration certificates, 
 and as about half the city was in this district he asked that 7,000 votes 
 be deducted from the vote of contestee. The registration of Louisiana 
 was a permanent one, but the law provided for the purging of the 
 registry lists by a joint canvass made by accredited representatives of 
 opposing parties. The names erased were required to be published 
 three days in the newspapers, and opportunity was given the parties 
 to show cause for correction. Ev£n on election day a voter possessing 
 a valid registration certificate, though struck off the list, could vote on 
 making proper proof of identity and residence. Early in the jear of 
 this election there was a joint canvass, and 13,000 or 14,000 names 
 were stricken from the list of the whole city. On the day of the elec- 
 tion the registrar of voters, under a mistaken view of the law, issued 
 instructions to election officers not to receive votes on the presentation 
 of certificates and affidavits, but to send voters to him for registrj-. 
 Later in the day the mistake was corrected and votes were received on 
 affidavit. It was not shown that any legal voters were prevented from 
 voting, and there were certainly not enough to affect the result. 
 
 Contestant claimed that there was a conspiracy to use these 14,000 
 names and the outstanding certificates corresponding to them as the 
 basis of illegal votes, and that the first step in this conspiracy to receive 
 such votes was the above-mentioned letter of instruction not to receive 
 them. The committee held that the letter would have the opposite 
 effect, if any. There was no evidence that a single obsolete certificate 
 was used, or attempted to be used, and the committee held that it was 
 too much to presume without evidence that 14,000 of them were used, 
 backed by 14,000 perjured affidavits and supported by 28.000 perjured 
 witnesses, and that T,000 of these were used in the First district, all in 
 the interest of contestee. Unless this claim (which, it was also noted, 
 was not made in the notice of contest) were allowed, contestant's case 
 could not be sustained, and the committee therefore reported resolu- 
 tions declaring contestee elected, Avhich, on June 6, 1898, passed the 
 House without division. 
 
 [Report 1521, second session Fifty-fifth Congress.] 
 
 (12) Gazin (VS-. Meyee. 
 
 Votes not counted. Contestee retained seat. 
 Keport by Mr. Olmsted. 
 
 This was another case, brought against the contestee in the pre- 
 ceding case, growing out of the same election. On the returns con- 
 
FIFTY-FIKTH CONGRESS. 565 
 
 testee received 10,776 and contestant 113 votes. Contestant served 
 notice of contest, consisting of the following specifications: 
 
 First. That the votes cast for me at various precincts in the city of New Orleans 
 were not counted and returned by the commissioners of election as cast. 
 
 Second. That the commissioners of election, in violation of their oath of office, 
 counted votes in your favor that were cast for me. 
 
 Testimony was taken onl}- on the first specification, and consisted of 
 the depositions of 31 persons, who testified that they voted for con- 
 testant, or attempted to do so. Half of these either voted at precincts 
 where as many votes were returned for contestant as were proved for 
 him or did not remember where they voted. 
 
 Fifteen witnesses in /lifferent parts of the city testified that they voted for Mr. 
 Gazin, while the returns from the several precincts fail to show any votes counted 
 for him. There is evidence that in the precincts in which some of these persons 
 voted a few votes were thrown out because improperly marked, the voter having 
 stamped too many candidates for the same office, or in some other way failed to indi- 
 cate his choice of candidates in the manner provided by the act of assembly. It is 
 impossible to say whether any of the ballots so thrown out were those in which the 
 voter had attempted or intended to vote for the contestant. 
 
 The few votes covered hy the testimony were all that contestant 
 could possibly claim, and the committee reported a resolution declar- 
 ing him not elected, which, on June 6, 1898, was passed by the House 
 without division. 
 
 [Report 1520, second session Fifty-fifth Congress.] 
 
 (13) Thorp vs. Epes. 
 
 PartiHan apjaointment of election officers; obstruction of voting; 
 fraud. Majority report for contestant; minority report for contestee. 
 Contestant seated. 
 
 Majority report by Mr. Walker; minority repoi't by Mr. Miers. 
 
 According to the returns contestee had a plurality of 2,621 votes. 
 There were also 491 votes cast for one J. L. Thorp, an obscure per- 
 son, a supporter of contestee, and not a bona fide candidate, which 
 were doubtless intended for contestant, but the committee did not dis- 
 cuss the question of counting them for him. 
 
 Contestant claimed that he should be allowed the votes of voters 
 who were at the polls endeavoring to vote for him, but at the close of 
 the polls were still unable to vote. They made statements of their 
 intention to vote at the time and signed or authorized the signature of 
 their names to tally lists. A large part of them were also called as 
 witnesses. Contestant also claimed that the vote of a large number of 
 precincts where there were no Republican election officers, or no com- 
 petent ones, and where fraud, such as this situation would make easy, 
 was shown, should be excluded. 
 
 The committee counted 623 of the excluded votes, being the ones 
 sworn to by the voters themselves. They also rejected 19 polls where 
 there was no Republican representation, and 6 where the Republican 
 representative was educationally unfit, or was not recognized by the 
 party as a Republican, stating also that frauds were proved at all these 
 precincts. Rejecting all these, and counting the excluded votes, and 
 133 other votes conceded by contestee, the committee found a majority 
 of 812 for contestant. Thej^ also presented a table to show that if no 
 polls were excluded, but the evidence of the lists and tallies was taken 
 
566 DIGEST OP CONTESTED ELECTION CASES. 
 
 for the full numbers shown on these lists, contestant would still have 
 a plurality of 307. 
 
 The excluded voters were in line when,the polls closed and had been 
 endeavoring to vote for many hours without success. Circumstances 
 were shown by the testimony, which the committee discussed by pre- 
 cincts, showing that the slowness of voting was unnecessaxy and was 
 sometimes deliberately promoted by such devices as alternating white 
 and black votes, to the disadvantage of the more numerous race, and 
 the like. The committee also discussed, by precincts, the evidence in 
 regard to the polls rejected for fraud. 
 
 On the general character and history of the district, the committee 
 said: 
 
 Before considering in detail the facts developed by the record bearing upon this 
 particular case, attention is invited to the location of the district, the character of 
 its population, and the political aflBliations of the voters as shown by the results 
 of former elections, and the testimony of prominent citizens whose testimony appears 
 in the record. The Fourth district of Virginia is located in the heart of what is 
 known as the black belt of the State, so called because of the large preponderance 
 of the colored over the white population. That in redistricting the State by the 
 Democratic legislature it was designedly made a. Republican district by grouping 
 counties having Republican majorities can hardly be questioned when it is remem- 
 bered that at the time every county, including the city of Petersburg, was under 
 the control of the Republicans. For more than a quarter of a century the district 
 has been represented in Congress but once by a Democrat whose seat was not con- 
 tested. Only three times before this has a Democrat been returned as elected, and 
 twice has the election been impeached successfully for frauds practiced by election 
 officers. Flections held in this section of the State have become notoriously corrupt, 
 false, and untrustworthy because of the bad character and fraudulent practices of 
 election officers appointed by partisan Democratic electoral boards, which in many 
 instances flagrantly, willfully, and defiantly disregard the salutary provision of the 
 law requiring judges to be selected from competent voters known to belong to different 
 political parties, selecting as such judges only partisan Democrats in many cases, or, 
 often when the law is pretendedly observed, selecting as a representative of the 
 Republican party ignorant colored men not recognized as morally or politically fit 
 to represent that party. * * * 
 
 This fair statement of the previous history of the district and its political condition 
 would in itself be sufficient to cast suspicion upon the honesty and fairness of returns 
 which gave contestee a plurality of 2,621 over contestant, who was the regular Repub- 
 liban nominee, and the only Republican candidate for Congress. 
 
 The committee also called attention to the fact that the failure to 
 appoint Republican election officers was in the face of the decision of 
 the House in the case of Thorp vs. McKenney, in the preceding 
 Congress: 
 
 In that case great stress was laid, both in the argument and the report, upon the 
 failure of the electoral board to comply with this very provision of the law at these 
 same precincts in this same county; the committee going so fai as to say, following 
 numerous decisions, that the failure to observe this requirement was in itself prima 
 facie evidence of fraud. 
 
 In answer to contestee's claim that contestant should have introduced 
 the registration books to show that the excluded voters claimed bj' 
 him were legallj'^ registered, the committee said: 
 
 This objection is based upon the idea that the registration book is primary evi- 
 dence as to whether a voter is registered or not, and that no other proof of that fact 
 can be received. 
 
 The registration books in Virginia are not public records to which verity can be 
 attached. In fact, they are only prima facie evidence that a man is a voter and may 
 be attacked by parole evidence in many ways. It is true they are the best evidence 
 as to whether a voter's name is on the registration book, but the fact that it is on the 
 book is not conclusive evidence that he is a registered voter, and the fact that his 
 name is not on the book is not conclusive evidence that he is not a registered voter. 
 
FIFTY-FIFTH C0NGKES8. - 567 
 
 The question in this case is whether the excluded person is a legally qualified voter 
 at the precinct at which he offers to vote, and not the question whether his name is 
 on the registration list or not. 
 
 As to the importance of giving both parties representation on the 
 boards, the committee said: 
 
 There is no more important provision of the law for the preservation of the purity 
 of elections anywhere than the giving of opposing parties representation among the 
 election ofiicers, and nowhere is such a provision more important than in Virginia, 
 where representatives of opposing parties are not admitted into the polling room until 
 after the ballot box has been opened and the ballots handled and counted by the 
 election officers. It can not be contended that the electoral boards failed by inad- 
 vertence to comply with this law, for their attention was called to its importance 
 both by the report in th« last-named case (Thorp vs. McKenney) and by the Rei)ub- 
 lican county chairman. 
 
 We are constrained, therefore, to conclude that it was designedly done for the sole 
 purpose of enabling partisan election officers to defeat the will of the voters as 
 declared at the polls. If any doubt existed as to this design it would disappear 
 before the evidence in this case, which, as before shown, discloses that frauds, ille- 
 galities, and irregularities were perpetrated by these Democratic election ofiicers at 
 every precinct where this law was disregarded. 
 
 All that is here said with reference to the refusal of the Democratic electoral boards 
 to comply with the law requiring the selection of judges known to belong to different 
 political parties applies with as much force to those precincts where these boards, in 
 pretending to comply with the law, selected as representatives of the Republican 
 party men who were not recognized by that party as Republicans, or were educa- 
 tionally or morally unfit to be judges of election. 
 
 The minoritj' disagreed upon nearly all of these points. As to the 
 general statements and findings of the majority report, thej' said: 
 
 If the recommendation of the majoi'ity is adopted by the House, a gross outrage 
 will be perpetrated, not only upon the contestant, but upon the country and upon 
 the House itself; a precedent will be set and a rule of action adopted which will be 
 most dangerous. 
 
 The report of the majority of the committee disregards the plainest principles of 
 law; it misstates and garbles evidence; it disfranchises the entire city of Petersburg 
 and the county of Lunenburg and eleven other precincts in the district, because by 
 no other method was it possible to award to the contestant a seat upon the fioor of 
 this House. This wholesale slaughter of the election franchise is not justified by any 
 evidence in the record nor sanctioned by any law. 
 
 This report. contains what is called by the majority a "fair statement of the pre- 
 vious history of the district and its political condition." This so-called "fair state- 
 ment" is full of misstatements, and is based upon no evidence in the record or out of 
 it. It is not true that when the State was redistricted every county, including the 
 city of Petersburg, was under the control of the Republicans. The State was redis- 
 tricted by the legislature of 1891-92. There were 16 members in that legislature 
 from the Fourth Virginia district; 14 of these members were Democrats, 1 was a 
 Populist, and 1 was a Republican. In 1890 James F. Epes was elected to Congress as 
 a Democrat, and his seat was not contested; in 1892 he was reelected, his seat was 
 contested, and he retained his seat. In 1894 W. R. McKenney was returned as a 
 Democrat; his seat was contested by R. T. Thorp, and McKenney was unseated, but 
 he took not a line of evidence, was unable by reason of sickness to defend the case, 
 -and permitted it to go by default. 
 
 The statement in the report of the majority that the elections in this section of the 
 State have become notoriously corrupt, false, and untrustworthy, etc., is unsupported 
 by evidence; on the contrary, the evidence in this case shows just the contrary. It 
 is a matter of surprise that such wholesale slanders of an entire section of a State 
 should find place in the deliberate conclusions of a judicial tribunal, such as a Com- 
 mittee on Elections should be. 
 
 On the counting of the "excluded votes" they said: 
 
 Votes not cast can not be counted as a matter of law generally. No contrary 
 opinion can be cited from the adjudged cases of the ordinary courts of any of the 
 States of this Union. This was a uniform rule of the House of Representativfs until 
 1873, some time after the adoption of section 2007, et seq.. Revised Statutes i I' the 
 United States (adopted May 31, 1870). This section was repealed by act of Febiuary 
 8, 1894, and whatever infiuence it ma;/ have had is thereby removed. 
 
568 DIGEST OF CONTESTED ELECTION CASES. 
 
 The minority cited the cases of Biddleand Richard vs. Wing, Whyte 
 vs. Harris, and Norris vs. Handley in support of the doctrine, and 
 Niblack vx. Walls, Frost vs. Metcalf, Bradley vs. Slemons, Bisbee vs. 
 Finley, Sessinghaus vs. Frost, and Waddill vs. Wise as illustrating that 
 the newer cases all counted the votes, if at all, on a much stronger 
 showing of facts than was made in the present case. Moreover, all of 
 these cases were decided before the adoption of the Australian ballot 
 system, which requires of the voter not only a clear expression of his 
 intention, but an expression in a certain manner, and disregards an 
 expression, even if equally clear, made in any other manner. "A count- 
 ing of votes not cast under any form of the Australian ballot law is to 
 admit parol testimony as to the intention of voters in regard to an act 
 that is by no means altogether dependent on such intention." 
 
 The minority said: 
 
 In view of the experience of other voters, and apart from the overwhelming legal 
 objections to this character of testimony, what possible assurance can the intention, 
 honestly expressed, of such persons furnish of the unachieved result? To count votes 
 not cast, under the Virginia law or any form of the Australian system, is to insure 
 the voter in oases similar to this against possible mistake in the preparation of his 
 ballot. >v 
 
 Certainly one who has not voted can not hope to be in a better situation than one 
 who has placed his ballot in the ballot box. Yet it is settled law under the Austra- 
 lian system that the intention of the voter can not be considered where the ballot 
 itself does not evidence such intention in the mode prescribed by law, particularly 
 where the statute itself prescribes the consequence of such failure to evidence the 
 intention. * * * 
 
 If, therefore, under the Australian system we can not in such cases resort to the 
 intention of an actual voter, what possible justification can there be in accepting the 
 intentions of individuals as to whom we have no evidence or means of knowing how 
 they intended to express their subsequently declared intentions? 
 
 The minority held, further, that there was no legal evidence that these 
 rejected voters were registered, the registry lists not being produced. 
 
 Legal registration is an essential prerequisite for voting in Virginia. (Code, 125. ) 
 By express statute the officers of election themselves can not take parol evidence 
 
 of this fact, but the name must be found on the registration books. (Idem. ) 
 This circumstance of legal qualification is essential to the doctrine stated above, 
 
 and in contested elections the party desiring to invoke its application should furnish 
 
 proof of equal dignity with that which the officers of election must have required. 
 
 The registration books are the best evidence of the qualification of a voter, and, being 
 
 in existence, are the only competent evidence on this subject. 
 
 As to the rejected precincts, there was no proof of fraud, and if 
 they were to be rejected at all it must be on the ground of partisan 
 appointments. The minority cited testimony as to each precinct, show- 
 ing that the charges of fraud were not made out. 
 
 The record does not sustain the charge that the ofiicers of election were all of one 
 political party. But even if that were true it would be without precedent to dis- 
 franchise whole communities merely upon suspicion of possible partisanry of the 
 officers of election. Fraud must be proved, not supposed as a preliminary hypotlie- 
 sis. While it is doubtless true that irregularities of procedure are shown by the evi- 
 dence to have been present in various precincts of the district, none of such irregu- 
 larities amount to an intentional breach even of the directory provisions of the 
 statutes, and the subscribers have been struck with the uniformlyregular and upright 
 conduct of the election machinery, in some cases entirely within the control of the 
 prevailing party. 
 
 The proposal to throw out whole returns for this reason alone was 
 especially unjustifiable in Virginia, where such a proceeding was 
 
FIFTY-FIFTH CONGRESS. 569 
 
 expressly prohibited by law. The concluding clause of the very sec- 
 tion requiring nonpartisan appointments was (Code, 1887, sec. 117): 
 
 But no election shall be deemed invalid when the judges shall not belong to dif- 
 ferent political parties or who shall not possess the above qualifications. 
 
 No case could be found, even on much stronger showings of facts and 
 under laws without this expressly directory clause, where polls were 
 thrown out on this ground alone. 
 
 The minority also called attention to the differences between this 
 case and the case of Thorp vs. McKenney in the preceding Congress. 
 In that case contestee had taken no testimony, and was forced by sick- 
 ness to let the case go substantially by default. Testimony such as in 
 that case had been taken as undisputed was in this case contradicted 
 or explained. There was, further, in this case no charge of ' ' alterna- 
 tion " of names or of the use of strange and illegible or misleading 
 forms of type. The authorities referred to in that case were ana- 
 lyzed, and the committee said: 
 
 From the foregoing analysis of the authorities relied on in Thorp vs. McKenney, 
 it will be seen that there is little weight of authority to sustain an imputation 
 against the verity of sworn returns by reason of the simple fact that officers of elec- 
 tion are all of the same political party. It will be recollected also, in addition, that 
 the legislature of Virginia has added to the directory provisions of the statute the 
 mandatory clause: 
 
 "But no election shall be deemed invalid when the judges shall not belong to dif- 
 ferent political parties or who shall not possess the above qualifications." 
 
 On all the findings the minority found that contestee's plurality 
 should be counted as 2,448, and they recommended resolutions declar- 
 ing him elected. 
 
 The case was fully debated in the House, and the substitute resolu- 
 tions presented by the minority were lost by a vote of 131 to 151. 
 The resolutions presented by the majority were then adopted by a 
 vote of 151 to 130, and on March 23, 1898, Mr. Thorp was sworn in. 
 
 [Report 428, parts 1 and 2, second session Fifty-fifth Congress.] 
 
 (14) Wise vs. Young. 
 
 Fraud; obstruction of voting. Majority report for con testant; minor- 
 ity report for coviestee. Contestant seated. 
 
 Majority report by Mr. Mesick; minority report by Mr. Burke. 
 
 According to the returns contestee had- a majority of 2,399 of the 
 ballots counted. Exclusive of the county of Norfolk, for which no 
 figures were given in the report, there were 9,515 ballots deposited in 
 88 precincts that were not counted for any candidate for Presidential 
 electors, and 6,844 ballots in the same precincts not counted for any 
 candidate for Congress. Thus nearly one-sixth of the entire vote for 
 Congressman and one-fourth of the entire vote for Presidential electors 
 was thrown out for defects in marking the tickets. Contestant claimed 
 to have proved that a large part of these defective ballots were so 
 marked by the election officers themselves, who subsequently threw 
 them out, and claimed this as one of the circumstances pointing to 
 fraud on the part of these election officers. 
 
 Many thousands of witnesses were called, whose testimony filled 
 nearly 4,000 printed pages. The committee classified the testimony 
 for contestant thus: 
 
 1. Evidence taken at a number nf precincts to show that the contestant received a 
 larger number of votes tluin was returned for him. 
 
570 DIGEST OF CONTESTED ELECTION OASES. 
 
 2. I'A-idence taken at a number of precincts to show such fraud on the part of the 
 election officers as compels the committee to throw out the returns altogether. 
 
 3. Evidence taken at a number of precincts to show that a large number of voters 
 who were qualified, present, and using every effort to exercise their right of franchise, 
 were hindered, delayed, and prevented from doing so. 
 
 4. Evidence touching a number of precincts showing fraud on the part of the elec- 
 tion officers in that their respective returns for contestant were less in each instance 
 than the ballots which they had been called upon to prepare for voters for contestant. 
 
 5. Frauds and irregularities at a number of precincts which do not fall under these 
 other classifications. 
 
 Contestee'.s defense was of three classes: 
 
 1. Testimony directed toward the manner of the contestant's candidacy and some 
 alleged defection from him within the ranks of the Republican party. 
 
 2. To the testimony of the impeached judges and clerks to their own honesty, fol- 
 lowed up in some instances by testimony as to their general good character. 
 
 3. By some testimony which is intended to affect the returns from Norfolk County. 
 This is not on the ground of any alleged fraud in the ballot of the county of Norfolk, 
 but on account of an irregularity in the action of the electoral board of that county 
 in the manner in which the tickets were printed. 
 
 The election was held under the Walton election law, which has 
 been described in connection with other cases from Virginia, with an 
 amendment abolishing the office of special constable and imposing the 
 duty of marking ballots for illiterates on one of the judges. The com- 
 mittee quoted from the decision of the Virginia court of appeals, in 
 which the constitutionality of the law was sustained, and said: 
 
 The court of appeals in sustaining the law declined either to regard the measure 
 as an unworthy device of its coordinate branch of the government to effect a con- 
 cealed purpose, or to anticipate that judges and clerks with duties so plainly defined 
 and oaths so solemnly administered would disregard these obligations, both human 
 and divine. At the time this opinion was rendered the act was already a year old. 
 It is creditable to the court of appeals of the State of Virginia that it had such faith 
 in human nature. The experience of two more years of this law seems hardly to 
 sustain their hopeful view of the ability of the judges to withstand temptation. 
 
 The committee threw out the vote of 24 precincts, giving an analy- 
 sis of the testimony in regard to 10 of them, of which they said "the 
 evidence of fraud is so overwhelming that we hesitate not for a 
 moment to throw out the returns." The election officers were all 
 Democrats, or there was an incapable Republican judge, and there 
 were circumstances indicating fraud, aside from the'direct evidence of 
 the falsity of the returijs. Individual voters were called in each case 
 in excess of the number returned for contestant who testified that the 
 judges prepared their ballots for them, and that they requested them 
 to prepare them for contestant. The number of names remaining on 
 the poll books in excess of the number whose votes were thus proved 
 was less than the returned vote of contestee, showing that ballots had 
 not merely been imperfectly prepared, but had been fraudulently 
 marked or counted for contestee. In 9 of these precincts, where con- 
 testant's returned vote was 426, he called 805 witnesses who swore that 
 they voted for him. All these polls were rejected, and the 1,517 
 votes returned for contestee from them were deducted from his vote, 
 as he had made no effort to show his vote aliunde. Contestant was 
 given the votes he proved. 
 
 In 14 other precincts, set forth in a tabular statement but not discussed 
 in detail, a similar state of facts was shown, and the same action was 
 taken. In 44 precincts, including these 24, contestant was returned 
 as receiving 3,729 votes, and he introduced 4,891 witnesses who swore 
 that they voted for him. The lists of certificates given by the voters 
 
FIFTY-FIFTH CONGRESS. 571 
 
 to tally keepers on the daj^ of election, if admitted as part of the res 
 gestae, would show that the actual total vote was 6,086. The com- 
 mittee allowed the extra votes proved in the 20 precincts not rejected. 
 The committee referred to the cases of Wallaces. McKinley, Sulli- 
 van -?'.?. Felton, Smith ;•<. Jackson, and McDuffie vs. Turpin (Fifty-first 
 Congress) as authority for the admissibility of statements of voters 
 made at the time, or lists embodying such statements, and said: 
 
 We are disposed, on the authorities above cited and upon the facts proved in tliis 
 case, to admit these certificates and the evidence of these tally keepers. 
 
 The testimony shows that the Republican managers had no confidence in the 
 Democratic judges; that this distrust was communicated everywhere to the Eepul)- 
 lican voters; that they were instructed not to attempt, where ignorant, to fix their own 
 ballots. The danger of their attempting to fix their ballots was foreseen. They w ere 
 supplied with yellow slips which they took to the judges, in writing, requesting them 
 to prepare the ballots for them. They were also supplied with these printed certifi- 
 cates as to how they had voted, which, immediately after voting, they voluntarily 
 took to the tally keepers of the election and gave to them. That the Democrats 
 understood what they were doing, and why they were doing it, is amply proved, and 
 in many precincts the attempt was made to intimidate the voters from presenting 
 the printed slips asking the assistance of the judges, and to drive away the represent- 
 atives of the contestant who were there to take the statements of the Republican 
 voters and the certificates of how they had voted. 
 
 When a voter, thus suspecting the integrity of the election judges, seeks to protect 
 himself by a contemporaneous statement to a competent and unimpeached repre- 
 sentative of hia party, we believe that the unimpeached testimony of the representa- 
 tive is admissible evidence concerning the vote. The transaction was certainly part 
 of the res gestje, and after the poll has been impeached, the evidence of such a tally 
 keeper and such certificates is the beat evidence obtainable; for the judges of election 
 are no longer credible, and the voters are in many instances inaccessible. We there- 
 fore think that the contestant is entitled to the excess of votes proved at these pre- 
 cincts, not only by the testimony of the voters themselves, hut by the proofs of these 
 certificates and these tally lists, and so we add to the poll of contestant 2,357 votes at 
 these 43 precincts, that being the number proved in excess of the return for him. 
 
 The contestee's counsel argued that we ought not to count these votes, because 
 even if we believe the statements of th^ witnesses that they voted, non constat that 
 the ballots were correctly made out. We can not consent to this. On the evidence 
 it is clear that if the judges had done their duty by these illiterates the returns would 
 not have been so easily impeached. But they are impeached, and the contestant is 
 trying to establish his vote by evidence aliunde. When witnesses swear that they 
 voted for him the presumption is that the ballots were correctly made out. The bur- 
 den in every such case would be on the other party to show that it was not. If we 
 err in admitting it we err on the side of an expression of the popular will untrammeled 
 by technicalities. 
 
 Again, the contestee has raised the point that some of these witnesses ought not to 
 be counted because of their own statements in their testimony. That is probably 
 true, but the per cent is too small to be considered where the result would not be 
 affected by particularizing such instances and deducting them from the contestant's 
 proofs. We think that the contestant, upon his proofs, should have added to his 
 returns 2,357 votes from the 44 precincts above named. 
 
 There were also 1,989 votes claimed to have been prevented from 
 being cast by dilatory and obstructive tactics in 29 precincts. Of these 
 votes 717 were in precincts already rejected on other grounds. These 
 voters made every effort to vOte, and were prevented through no fault 
 of their own. The evidence showed that " the elections at these points 
 were conducted with a view to the very obstruction and delay which 
 were accomplished." v 
 
 To deny these voters recognition when they have come a second time to assert 
 their constitutional right, of which they have been unjustly deprived, would, in our 
 judgment, be an encouragement to the people who are seeking to profit by such 
 methods and an insult to the loyalty of the voters. 
 
 On all these findings contestant was shown to have a majority of 
 6,199, and the committee said: " In our opinion, the vote of the Second 
 
572 DIGEST OF CONTESTED ELECTION CASES. 
 
 Congi'essional district at tho, oloction of November, 189fi, if fairly 
 received and fairly counted, would show the contestant's majority as 
 large as that which is here accorded him." They therefore i-ecom- 
 mended resolutions declaring contestant elected. 
 
 The minority found that tne testimony did not establish any general 
 fraud, but only irregularities, due to the intricacies of .the law. 
 
 It would be interesting and helpful in the very beginning of this investigation if 
 we could ascertain just exactly what position the majority takes upon the question 
 of the validity of the Virginia election law under which this election was held, and 
 of the obligation of Congress to recognize the provisions of that law in determihing 
 the legality of this election. The value of such knowledge is apparent. 
 
 If the law is valid, and Congress, in determining this contest, is bound by it, tlien 
 all such alleged irregularities in the conduct of the election as may reasonably be 
 supposed to result from the intricacies of the law itself, or from ignorant misconcep- 
 tion of it, are removed from the category of those fraudulent practices which destroy 
 the value of the returns as evidence, justifying the rejection of the entire polls, and 
 become, unless committed with fraudulent intent, mere irregularities, to be cor- 
 rected (it is true) where possible, but not of themselves vitiating the returns. This 
 is too plain for argument, for no man can be said to be guilty oi fraud if he strictly 
 follows the provisions of the law, nor if he ignorantly interprets or executes it. 
 
 If, on the other hand, the law is invalid, or — which amounts to the same thing — 
 Congress can ignore the decision of the supreme court of appeals of Virginia declar- 
 ing it valid and reasonable in its provisions, then Congress may declare the conduct 
 of election officers at the polls unreasonable, oppressive, and illegal, though in strict 
 accordance with the election law of the State, and may determine the election invalid, 
 notwithstanding it has been conducted in true obedience to the law. But in such a 
 case the decision would be not because the election law was tainted with fraud, but 
 because Congress determines that the State has nn election law which can be honestly 
 administered. 
 
 It is a general rule that the Federal authorities will follow the decisions of State 
 courts both in the construction and the validity of State constitutions and statutes. 
 
 We see no reason why this rule should be departed from in this case. The highest 
 court in the State of Virginia having upheld the validity of this law, and declared 
 its provisions reasonable, vi'e are bound by that decision, and in considering the 
 evidence here we must endeavor to ascertain whether this election was conducted in 
 accordance with the provisions of that law. If we find it so, the contestee is entitled 
 to retain his seat. If we find that any of the provisions of this law were disregarded 
 in the conduct of this election, we should further ascertain whether such disregard 
 of the law was with fraudulent intent, or through ignorance, oi misinterpretation of 
 the law. If done with fraudulent intent the value of the returns as evidence is 
 destroyed, and the returns may be rejected; but if done through ignorance, or mis- 
 construction of the law, while the votes may be illegal, that fact will not affect the 
 election, or render it void, unless the number of such illegal votes is great enough to 
 affect the general result; and where it is shown that illegal v(.ite.s have been cast for a 
 candidate, they should be deducted from his vote. This is the common leaning of 
 the profession on this subject. 
 
 The distinction is between mere illegality and fraud in the conduct of elections. 
 The first does not deprive the candidate of "any votes save those proven to have been 
 illegally cast for him; the second, by destroying the value of the returns as evidence, 
 causes the rejection of the entire poll and deprives the candidates of all the votes cast 
 for them, as well the legal as the illegal ones, unless otherwise proved. (6 Am. and 
 Eng. Ency. of Law, "Elections," pp. 351-357; Le Moyne ra. Farwell, 4 Cong. Elec. 
 Cases, 411; Washburn rx. Voorhees, 3 Cong. Elec. Cases, 59.) 
 
 Fraud, however, is never presumed, and " nothing but the most ponitire, credible, 
 and unequivocal evidence should be permitted to destroy the credit of official returns. 
 It is not sufficient to cast suspicion upon them." (6 Am. and Eng. Ency. of Law, 
 p. 354; Littell vs. Robbins, 2 Cong. El. Cases, 138; Ingersol vs. Naylor, 2 Cong. El! 
 Cases, 33; Gooding vs. Wilson, 4 Cong. El. Cases, 79; Norris rs. Handley, 4 Cong. 
 El. Cases, 75; Strobach rs. Herbert, 6 Cong. El. Cases, 7.) 
 
 A fortiori mere opportunities for fraud should not be taken for proof of fraud. 
 
 The minority then proceeded to analyze the testimony by precincts. 
 The evidence of the voters, most of whom were illiterate negroes, was 
 generally contradicted by the testimony of the election officers, most 
 of whom were intelligent white men. Many of the voters, on cross- 
 
FIFTY-FIFTH CONGRESS. 573 
 
 examination, did not know whether they voted for McKinley, Hobart, 
 or Wise for Congress, and some of them insisted that they voted for 
 all three for Congress. "They simply were too ignorant to know 
 what they were testifying about." The minority found the testimony 
 only sufficient to reject two precincts, and to count for contestant a 
 modei'ate number of additional votes at some others. Deducting the 
 voltes in regard to which the testimony was not clear, the remainder 
 was not more than could be explained by the large number of reje6ted 
 ballots, as shown bjr the returns. 
 
 The minority held that the evidence of the certificates was hearsay. 
 They said: 
 
 Votes proved by certificates. We can not agree with the majority that these cer- 
 tificates could be counted as proven votes. They seem to us the barest kind of hear- 
 say. And while it is true that it often occurs that what would otherwise be regarded 
 as hearsay testimony becomes admissible as a part of res gestae, this is true only 
 where the admission of such testimony would not contravene some well-established 
 principle of law or be against public policy. In this case both of these reasons apply 
 against their admission. The State of Virginia has passed a law for the conduct of 
 elections in which, according to the opinion of her highest court, the dominant pur- 
 pose is to " secure the independence of the voter by secluding him within an isolated 
 booth;" "to free him from all solicitations and annoyance." (Pearson to. Super- 
 visors, 91 Va., 331.) 
 
 But how is this independence to be secured if the voter is permitted to be escorted 
 to the polls by his political bosses, instructed or even given to understand by his 
 political overseers that he is expected to disclose his vote after depositing it, and knows 
 that he will be spotted as as a political traitor if he refuses to do so? To permit such 
 practices is to continue the very evil the law was enacted to cure, to destroy the inde- 
 pendence of the voter, and to make a delusion of th^ secrecy of the ballot. Such 
 considerations overcome the mere rule of evidence that testimony otherwise hearsay 
 may be admitted as part of res gestae. The contestant should not be allowed these 
 additional votes. 
 
 In regard to the " excluded votes " they said: 
 
 The excluded vote of 1,989 is given contestant by the majority report on the ground 
 that these voters were "hindered, delayed, obstructed, and prevented from voting 
 for him at 29 precincts." 
 
 In an election where 31,298 votes were actually cast, it is not remarkable that 1,989 
 men should be found who would say that they did not have the opportunity to vote. 
 Even if this were true, it was in no sense the fault of the officers of election that it 
 occurred. This record is full of testimony from the contestant's own witnesses that 
 nothing was done by the judges improperly to hinder or delay the vote, nor can it 
 fairly be claimed to be due to fraudulent conspiracy on the part of the State officers 
 charged with the duty of providing sufficient voting precincts. These same precincts 
 in 1892 accommodated a vote of 31,326, and, while the vote cast in 1894 was only 
 21,994, there seems never to have been any suggestion that this falling off was due to 
 insufficient accommodations in the provision for receiving the vote. We are of opinion 
 that neither should the contestee be blamed nor the 15,789 electors who voted for 
 him be deprived of their choice of Representative because there might have been, 
 even if that be conceded, more ample provision made for receiving the vote, and we 
 therefore report that contestant is not entitled to have this vote counted for him. 
 
 Cooley (Const. Lim., pp. 781, 789), Biddic and Richard vs. Wing, 
 and Whyte vs. Harris were cited in support of the doctrine that votes 
 not cast can not be counted, and the expression in Frost vs. Metcalf 
 was explained as dictum. They added: 
 
 But, pursuing this inquiry more in detail, we find that of this alleged excluded 
 vote of 1,989, there were, who made no proper effort to vote, 835, and there were 
 witnesses examined whose names were not on notices to take depositions, numbering 
 109, total 944, leaving at the most but 1,045 voters who could be claimed to have been 
 excluded, even if this alleged excluded vote could be with propriety counted for 
 contestant. 
 
574 DIGEST OF CONTESTED ELECTION OASES. 
 
 On all these findings the minority found that contestee still had a 
 plurality of 1,961. Even if the 1,045 excluded votes should be sub- 
 tracted from this he would still have a plurality of 916. The minor- 
 ity therefore presented I'esolutions declaring contestee elected. 
 
 When the case was called up in the House the question of consider- 
 ation was raised, and the House decided by a vote of 146 to 121 to 
 consider the case. After full debate a motion to recommit was lost 
 by a vote of 101 to 147, and the resolutions presented by the mmoritj' 
 were lost by a vote of 107 to 147. The resolutions presented by the 
 majority were then passed without division, and on April 26, 1898, 
 Mr. Wise was sworn in. 
 
 [Report 772, parts 1 and 2, second session Fifty-fifth Congress (part 
 2 erroneously printed as of the Fifty-fourth Congress)]. 
 
 (15) Patterson vs. Carmack. 
 
 Fraud; fahc counting, partisan ajjpointment of election officers; 
 foil ta.v jMid hy campaign committee. Majority report fm^ cantestant; 
 minority report for contestee. Contestee retained the sent. 
 
 Majority report by Mr. Kirkpatrick; m.nority report by Mr. 
 Brundidge. 
 
 Both the parties to this case were Democrats, and both claimed to 
 be the regular nominees of regular Democratic conventions, but con- 
 testant was a Gold Democrat and had received the indorsement of 
 both wings of the Republican party. It was charged, however, that 
 the indorsement of the colored Republicans (known as the "black and 
 tans ") had been obtained by bribery. 
 
 On the face of the returns contestee received a majority of 365. 
 Ten precincts were in dispute. In the undisputed precincts contestant 
 had a majority of 1,207; in the disputed precincts contestee had a 
 majority of 1,572. These were strong colored precincts, and the com- 
 mittee called attention to the fact that, if the returns were correct, con- 
 testee must have received all the white vote and three-fourths of the 
 colored vote, though ever3"where else the colored vote was solid for 
 contestant and there was no reason to expect it to be difl^erent at these 
 precincts. At the other precincts there were election officers repre- 
 senting both sides, and the election was fair. At these precincts there 
 was either no ofiicer of election favorable to contestant or there ■nas an 
 illiterate negro judge claimed to be a Republican. Some of these, even, 
 were in fact Democrats, and one of them was an idiot as well. Con- 
 testant claimed that these facts indicated a conspiracy to defeat him 
 by fraud in these districts, in which the contestee secured his whole 
 majority. The committee referred to Threet rs. Clark, ^IcDufiie vs. 
 Turpin, and Hill vs. Catchings, Fifty-first Congress; Buchanan vs. 
 Manning, Forty-seventh Congress; Donnelly vs. Washburn, Fortv- 
 sixth Congress, and Thorp w. McKonnoy, Fifty -fourth Congress, and 
 said: 
 
 According to the foregoing citations, tlie appointment on the election boards to 
 represent one of the opposing parties of persons not in sympathy with or objection- 
 able to that party, or of persons unable to read and write and without the necessary 
 mental capacity to enable them to serve intelligently, should of itself be regarded as 
 evidence ot conspiracy to defraud on the part of the election officials, and that the 
 appointment of such persons was primn. Jack evidence of fraud and misconduct on the 
 part of those charged with the constitution of these boards" and the conduct of the elec- 
 tion, where it was possible to appoint competent and well-known representatives of 
 
FIFTY-FIFTH CONGRESS. 575 
 
 the complaining part)^ to act aa judges or inspectors of election. This presumption 
 is still more emphatic where, as in this case, these appointments were strongly 
 objected to by the friends of the contestant in the several districts complained of, 
 and where timely application was made for proper representatives and the attention 
 of the appointing parties called to a number of proper and unobjectionable persons 
 for such place on the boards. * * * 
 
 There is no pretense that it was not possible to have selected persons who could 
 read and write, the proof showing that there were many such persons in all these 
 districts who were Republicans. Therefore, according to the rule laid down in the 
 cases above cited, this one fact is a very strong circumstance, sufficient in itself, unless 
 explained, to prove a conspiracy to defraud, and even making out, according to the 
 holding in Thorp vs. McKenney, a prima facie case of fraud and misconduct on the 
 part of the officials charged with the conduct of the election. 
 
 Tables showing, by precincts, the returned vote compared with the 
 colored and white vote were given, and the committee added: 
 
 If the colored voters in the districts embraced in this last table had refrained from 
 voting altogether, and the contestee had received all the white votes cast at the polls, 
 he would still have had only 830 votes instead of 1,492, and contestant would have 
 had a clear majority in the entire Congressional district. 
 
 According to the proof a very large majority of the colored people were Republi- 
 cans, whose habit it was to vote the straight Republican ticket. 
 
 It can not be denied that the fact shown by above tables, that so large a majority 
 of the colored voters in the contested districts appear to have voted, not only for the 
 contestee, but for all the Democratic candidates, is a very suspicious one, in the light 
 of the proof in this case. Unless some reason for this is shown, it will certainly add 
 great strength to the presumption of fraud arising from the selection of ignorant 
 judges, and force us to the conclusion that the vote returned from these contested 
 districts did not represent the actual vote cast by the voters. 
 
 Taking up the districts in detail, the committee showed that there was 
 independent evidence of fraud in each one of them. In several cases 
 it was shown by the testimony of list takers, corroborated by the tes- 
 timony of the voters themselves, that many more votes were cast for 
 contestant than were returned for him. The election officers refused 
 to allow friends of contestant to witness the count, in violation of the 
 statute, which in plain terms gave them this right; and there were 
 other indications of fraud. The committee rejected or corrected these 
 returns, according to the testimony in each case. 
 
 In two precincts the officers of election refused to open the polls at 
 the proper time, and the friends of contestant, after some delay, organ- 
 ized other polls at which they cast their votes. The officers of election 
 later opened polls, and the friends of contestee cast their votes at these. 
 The committee were of opinion that the polls organized by the voters, 
 after the appointed officers had refused to do their duty, were the only 
 legal polls, but they counted the vote cast at both polls in one of the 
 precincts. At the other they counted only the poll held to be legal. 
 They said: 
 
 It is true that there are cases in some ot the States which hold that the purpose to 
 commit a fraud on the part of the election officers in charge, however clearly evi- 
 denced, is not of itself sufficient to authorize electors who fear to cast their votes at 
 such polling place, however reasonable that apprehension may be, to set up and hold 
 another election. 
 
 No case, however, was cited from Tennessee, and in view of the very liberal pro- 
 visions of the statutes of that State and the still more liberal interpretation placed 
 upon those statutes by its courts in construing and overlooking irregularities in the 
 interest of a fair and free expression of the popular will, there is room for doubt as 
 to whether this poll might not be sustained. 
 
 But in judging "of the elections, returns, and qualifications of its own members" 
 under 'the grant of the Constitution, this House exercises judicial power, and is a 
 
576 DIGEST OF CONTESTED ELEOTIOK CASES. 
 
 court of competent and exclusive jurisdiction. In passing upon these returns and 
 elections, even if no Federal statute is in existence regulating the elections of its 
 members, it interprets and construes the State election laws, which for the purposes 
 of such election are to be regarded as having the quality of Federal legislation, and 
 the opinions of State judges are only to be adopted so far as they commend them- 
 selves by the intrinsic force of their reasoning, and where such decisions are in con- 
 flict with its own determinations, the" precedents established by Congress are the 
 expression of the law, and must control that court with the same force and effect 
 that its own prior deliberate rulings guide and control any other court. 
 
 It has been decided in numerous cases by Congress that it is its privilege and its 
 duty in the exercise of its constitutional right to pass upon the election and qualifi- 
 cations of its own members, to award the seat in Congress to the candidate who is 
 ascertained to be the choice of the majority of the legal voters of his district, even 
 though slight technicalities are required, in doing so, to be overlooked and disre- 
 garded. This power may be regarded as implied in the constitutional grant, and to 
 that extent "and thereby State legislation, so far as it relates to and regulates the elec- 
 tions of members of Congress, supplemented and modified by that Constitution as 
 the supreme law of the land. 
 
 But in precincts where the supporters of contestant, not trusting 
 the election officers, simply declined to vote, the committee did not 
 count their votes, stating that these voters " should have tendered their 
 votes, and, having failed to do so, of course can not be counted." 
 
 Contestee charged that 3,000 votes -were cast for contestant on poll- 
 tax receipts which had been paid for by contestant's political support- 
 ers, and not by the voters themselves. 
 
 We are of the opinion that when the voters accepted the poll-tax receipts for taxes 
 paid by others for them, they ratified the payment so made for their benefit, and 
 they thus constituted the parties so paying the taxes their agents in that .behalf. 
 Nor was it necessary that the voters should offer or bind themselves to repay such 
 taxes to the person so paying them in order to constitute it a payment by the voter 
 or a ratification thereof. The acceptance by the taxpayer of the receipt is in itself a 
 sufficient adoption of the payment by another for him, and it makes no difference 
 how or by whom the payment was made, the State's demand is fully satisfied by the 
 payment and the delivery of the receipt to the voter, and his acceptance thereof is a' 
 final payment and appropriation. 
 
 Besides, according to a proper construction of the Tennessee statute, a voter who 
 has any one of the evidences named in the statute that he paid his poll tax is entitled 
 to cast his vote and have it counted upon exhibiting such statutory evidence, whether 
 he paid his tax in person or some other person paid it for him, provided he adopts 
 the act by availing himself of such receipt, even though such payment was by a 
 political committee for the purpose of qualifying him to cast his vote. * * * Nor 
 is the mere furnishing and acceptance of s^ich receipt a corrupt act or proof of bribery. 
 It must appear that such payment of a,.tax by another than the voter and delivery to 
 him of the receipt therefor was done as an inducement or consideration for the vote 
 or for the purpose of influencing the choice of the voter. 
 
 According to the findings of the committee, contestant was elected 
 by a majority of 1,242, and they therefore recommended resolutions 
 giving him the seat. 
 
 The minority held that the "•' outside polls," informally organized and 
 held at places different from the regular voting places, could in no case 
 be counted — 
 
 it being an indisputable principle of law that there can be but one lawful election 
 held at the same time and same place for the same office. And it is further well set^ 
 tied, both by the decisions and text writers on contested-election cases, that there 
 is no law. State or national, which authorizes electors, who believe that their votes 
 will not be counted at the regular polls or for any other imagined reasons, to resort 
 to the holding of an election for themselves at an outside poll. 
 
 There was no proof of the vote cast at these irregular polls, except 
 the return of the persons holding them, which had always been held to 
 
FIFTY-FIFTH CONGRESS. 577 
 
 be insufficient. The elections, moreover, had not been held at the 
 places designated by law, and — 
 
 there is less latitude allowed in changing the place at which an election is held than 
 in varying the time of opening or closing it; and it is a rule to which there are very 
 few exceptions that an election held at any improper place will" be held absolutely 
 void, without proof of any fraud or injury. 
 
 The minority then proceeded to analj^ze the testimony' in regard to 
 the disputed precincts, showing that the testimony of contestant was 
 not consistent or conclusive, and was contradicted by the testimony of 
 the election officers and by other evidence. The charge of conspiracy 
 they held was not sustained by the evidence, and was negatived by 
 circumstances. 
 
 On the poll-tax vote they said: 
 
 Now, we fully recognize the doctrine that one's poll tax may be legally paid by 
 another, provided the voter shall properly ratify the act afterwards, but we do not 
 think the mere taking of the receipt and voting on the same is such a ratification as 
 the law contemplates. We think that the better and sounder doctrine if^ that the 
 voter should not only accept the receipt but he should recognize the act in the more 
 substantial way, by repaying or promising to repay the amount; and it was so held 
 by the supreme court of Massachusetts in the case of Humphreys 7'.s. Kingman (5 
 Metcalf, 162), and courts of other States have more recently announced the same rule. 
 
 Moreover, many of the receipts were issued in blank, and — 
 
 it also appears that at the time these poll-tax receipts were issued there was an 
 agreement and understanding made with the officer issuing them that all those not 
 used could be returned and pay would only be exacted for such as were not returned; 
 and many of them, in fact, were returned. 
 
 This practice does not meet with our approval. The laws of the State make the 
 poll tax a charge and burden against the voter, and it is not a tax against a cam- 
 paign committee or a certain candidate, and neither of them should be permitted to 
 use them for the purpose of bribing voters. 
 
 However, the minority only deducted 75 of the 3,000 votes, and 
 deducted these on the ground that $150 of the poll-tax money was not 
 paid until eighteen days after the election. 
 
 The minority also rejected the vote of one "outside" poll which 
 had been counted by the county canvassers. By their findings con- 
 testee was elected by a majority of 590, and they recommended 
 resolutions declaring him elected. 
 
 When this case was brought up in the House the question of con- 
 sideration was raised, and the House first voted, by a vote of 118 to 129, 
 not to consider it. A motion to reconsider was made, and a motion to 
 lay the motion to reconsider on the table was lost by a vote of 123 to 
 126. The motion to reconsider was then passed, by a vote of 127 to 
 123, and the House voted, without division, to consider the case. 
 After debate, the substitute resolutions proposed by the minority 
 were (on April 22, 1898) passed b^' a vote of 138 to 120, and the reso- 
 lutions as thus amended passed by a vote of 136 to 118. So the con- 
 testee retained the seat. 
 
 [Report 895, parts 1 and 2, second session Fifty-fifth Congress.] 
 
 H. Doc. 510 37 
 
578 digest of contested election cases. 
 
 (16) Brown vs. Swanson. 
 
 Trfcijulaii'lticx; fraud; jweci/ricU too Idirge and voting obstriuited. 
 Firnt report for contestant; second rejjort fi/r contestee. House refused 
 to ciynKi'de'r ciikc. 
 
 First report by Mr. Crumpacker; second report by Mr. Miers. 
 
 The Hrst report in this case, presented by Mr. Crumpacker, was 
 ordered submitted by a vote of a majority of a quorum of the com- 
 mittee, but was signed by only four members, less than a majority of 
 the whole committee. When it was submitted to the House (on April 
 13, 189s) there was considerable debate as to the propriety of receiving 
 it, but the House voted to give the four signers leave to present their 
 report, and granted the other members of the committee ten days in 
 which to submit their report. The first report, signed hy Messrs. 
 Walker, Mesick, Kirkpatrick, and Crumpacker, was printed in the 
 usual form of a committee report; the second, signed by the other five 
 membersof the committee, was printed as the "Views of the majority." 
 
 According to the returns, contestee had a majority of 5-51. The 
 committee counted the votes of three precincts rejected by the county 
 canvassers, the first on the ground that one of the judges was not 
 sworn, the second on the ground that the signatures of the judges 
 were written, at their direction, by the clerk, and the third on the 
 ground that there was an excess of 2 ballots in the box. In another 
 precinct 55 ballots, 48 of which had been correctly marked for con- 
 testant and 5 for contestee, had been burned by the judges, on the 
 ground that they were improper^ marked for President. The com- 
 mittee counted these, as the law plainly required the judges to have 
 done. The contestee claimed that this whole return should have been 
 rejected for fraud, because the illiterate Republican voters whose bal- 
 lots had been marked by a Democratic judge exhibited them to the 
 Republican judge before depositing them, but the committee held that 
 this was not fraud, and was not prohibited by the law. ' ' The secrecy 
 is for the protection of the voter, and is not compulsory as to him." " 
 
 The principal issue in the case was in three precincts in Pittsylvania 
 County, where 526 voters testified that they had made earnest efl:'orts 
 to vote, but had not succeeded in doing so when the polls closed. The 
 committee held that 494 of these, whose testimony was entirely clear, 
 should be counted for contestant, for whom they testified that they 
 would have voted. This county was the "black county" of the dis- 
 trict. The negroes as a whole were Republicans, but contestee, the 
 Democratic candidate, obtained the whole of his majority in this 
 county, contestant carrying the rest of the district by a majority of 
 635. At these three precincts two lines were formed, one for white 
 and one for colored voters, and votes were received alternately from 
 the two lines, with the result that all the white and only half the 
 colored vote was cast. The conduct of the officers of election was 
 arbitrary and dilatory throughout, and there was an evident purpose 
 to obstruct the voting. The precincts were too large, but it was the 
 duty of the county court, under the law, to have divided them, if nec- 
 essary, on the petition of 15 voters. In at least one of the cases such 
 a petition had been presented, but the precinct was not divided. 
 
 The purpose of elections is to register the will of a majority of the voters, and it is 
 the duty of the officers of the law to afford every qualified voter a reasonable oppor- 
 tunity to exercise the important right of suffrage. If that opportunity is afforded 
 
FIFTY-FIFTH C0NGKBS8. 579 
 
 and the voter fails to avail himself of it, or if by some fault of his own he violates some 
 regulation in attempting to exercise the right and thereby loses his vote, he can have 
 no just cause of complaint. But it conditions exist for which the voter is not respon- 
 sible, that operate to defeat the rights of a substantial number of electors to vote so 
 that it can not be said that the result at a particular poll reflects the will of a majority 
 of the voters, it discredits the entire poll. * * * 
 
 Where, however, the rejection of the poll might aggravate the wrong or would 
 defeat the ends of justice and it is shown by reasonably satisfactory evidence the 
 number of votes so excluded and for whom they would have been cast had there 
 been an opportunity, the poll will be considered and the excluded votes will be 
 counted for the candidate who would have received them. This has been the rule 
 of the House for many years, and it is based upon principles of justice and a wise 
 public policy. * * * The claim on behalf of contestee that votes not cast can not 
 be counted under the Australian system of voting, because of its peculiar features, is 
 entirely destitute of merit. The rule is the same under all systems of voting. 
 
 Nor will it do to withhold from the voter an opportunity to cast his ballot and 
 in answer to his complaint say to him that he probably would have lost his vote in try- 
 ing to cast it. Every legal voter is entitled to an opportunity, and if he fails to reg- 
 ister his voice on account of incapacity or neglect, the fault is his own. 
 
 At another precinct one of the officers of election testified that he 
 had marlsed 14 votes for contestant and 1 for contestee, striking 
 through only the surname of the "scratched" names. All these bal- 
 lots were thrown out, but the committee counted them, saying: 
 
 It is manifest that these votes should be counted. There is no dispute about the 
 facts, and it is well settled that an elector can not lose his right to vote by the mis- 
 take of one of the election officers. If the voter himself made the mistake, the ballot 
 should not be counted, but where he depends upon an officer whose duty it is to 
 assist him in the preparation of his ballot and the officer, through ignorance or design, 
 fails to mark the ballot properly, it should be counted. 
 
 The committee held also that the fact of registration could be proved 
 by parol evidence. 
 
 Eegistration is designed to prevent fraud and to determine disputed questions that 
 might otherwise arise at elections in advance, so as to avoid confusion and delay. 
 Election boards do not have the time nor opportunity on election day to investigate 
 critically questions that may arise respecting the qualifications of voters, and for the 
 purposes of election the registration books are primary evidence; but when questions 
 arise, as they do here, before a tribunal fully equipped to investigate for the truth, 
 the qualifications, including the registration of voters, may be proved by parol. 
 
 Eegistration does not create the right to vote, but it is an official memorandum of 
 an existing right, and parol evidence is as near the fact as the books. In fact, the 
 books are made from parol evidence, and they are never regarded as more than 
 prima facie evidence of the right to vote. In most of the States laws exist requiring 
 a record to be made of marriages, but the record does not constitute the marriage; it 
 is only an official memorandum' of it; and in all the States marriage may be proven 
 by parol evidence, notwithstanding the record. A very liberal policy has always 
 been followed in election cases respecting the admissibility of evidence. 
 
 The four members signing the report found that contestant was shown 
 to be elected by a majority of 372, and recommended resolutions declar- 
 ing him elected. 
 
 The second report, or " views of the majority," is as follows: 
 
 The returns show that 28,115 votes were cast for Congressman in the Fifth Con- 
 gressional district of Virginia on November 3, 1896, and that Claude A. Swanson, 
 Democrat, the contestee in this case, received a majority of 551 votes. 
 
 Contestant urges (brief, p. 3), upon what he terms the "princip-'.l and all-suffi- 
 cient grounds" of his contest, that he is entitled to a majority of 15h votes. 
 
 He further contends that there are "other claims" which ought to be allowed, 
 which would give him a majority of 760 votes (brief, p. 65). 
 
 In his reply brief (p. 48) contestant reduces the majority which he claims upon 
 his principal grounds to 51, and his majority on all claims to 306 (reply brief, p. 52). 
 
 Contestee, in his brief (p. 94), claims that 249 votes should be added to the votes 
 returned for him, making his majority 800. 
 
580 DIGEST OF CONTESTED ELECTION OASES. 
 
 After listening to exhaustive arguments in this case, four members of the commit- 
 tee have filed a report in which they recommend that contestant be given a majority 
 of 372 votes. They also direct attention to 147 other votes which, in their opinion, 
 might justly be counted for contestant, making his majority 519. 
 
 The undersigned agree with the conclusions of the said report, except so far as they 
 relate to the so-called excluded vote at Stokesland, Ringgold, and Design precincts, 
 and the 147 votes aforesaid, which we do not think should be counted for contestant. 
 
 After a careful examination of the cases and authorities cited by contestant and a 
 rigid analysis of the evidence contained in the record relating to these three precincts, 
 we are constrained to conclude that, while the law is correctly stated by contestant, 
 the facts, as disclosed in the record, do not warrant the counting for contestant of 
 the 495 excluded votes. 
 
 We are therefore of the opinion that the returns should give to the contestee a 
 majority of 123 votes, and we recommend the adoption of the following resolutions. 
 
 The case was not called up until January 19, 1899. The question of 
 consideration was raised, and the House, by a vote of 79 to 143, refused 
 to consider the case. On February 23 the case was again called up, but 
 the House, by a vote of 101 to 133, again refused to consider it. 
 
 [Report 1070, parts 1 and 2, second session Fifty -fifth Congress.] 
 
FIFTY-SIXTH CONGRESS. 581 
 
 FIFTY-SIXTH CONGRESS, 1899-1901. 
 
 Cdmiiiittt'i' (lit Elect 1,0)1 X jVo. 1. 
 
 Mr. Tatler, Ohio. Mr. Pearson, North Carolina. 
 
 LiNNEY, North Carolina. Bartlett, Georgia. 
 
 Mann, Illinois. Fox, Mississippi. 
 
 Davenport, Pennsylvania. Glynn, New York. 
 
 Mr. BuRKETT, Nebraska. 
 
 Com III iMre I'll Elections X<>. %. 
 
 Mr. Weaver, Ohio. Mr. Thomas, Iowa. 
 
 Olmsted, Pennsylvania. Robinson, Indiana. 
 
 Landis, Indiana. Green, Pennsylvania. 
 
 Miller, Kansas. Snodgrass, Tennessee. 
 
 Mr. Burke, South Dakota. 
 
 (Mr. Snodgrass was appointed on January 19, 1900, in place of Mr. 
 Gaines, who had been excused.) 
 
 Coiiiinittee on Elections No. 3. 
 
 Mr. Mesick, Michigan. Mr. Driscoll, New York. 
 
 Cochrane, New York. Miers, Indiana. 
 
 Faris, Indiana. Burke, Texas. 
 
 Roberts, Massachusetts. McLain, Mississippi. 
 
 Mr. Weeks, Michigan. 
 
 Special Committee on the Case of Brigharn II. liobertn. 
 
 Mr. Tayler, Ohio. Mr. McPherson, Iowa. 
 
 Landis, Indiana. De Armond, Missouri. 
 
 Morris, Minnesota. Lanham, Texas. 
 
 Freer, West Virginia. Miers, Indiana. 
 
 Mr. Littlefield, Maine. 
 
 Cases. 
 
 Special Committee. 
 
 (1) Brigham H. Roberts, Utah. 
 
 Committee No. 1. 
 
 (2) Walter Evans vs. Oscar Turner, Kentucky. 
 
 (3) William F. Aldrich vs. Gaston A. Robbins, Alabama. 
 
 (4) Robert W.ilcox, Hawaii. 
 
 (5) George M. Davidson vs. George G. Gilbert, Kentucky. 
 
 (6) James A. Walker w. William F. Rhea, Virginia. 
 
582 DIGEST OF CONTESTED ELECTION CASES. 
 
 Com.mittee No. 2. 
 
 (7) John D. White vs. Vincent S. Boreing, Kentucky. 
 
 Committee No. 3. 
 
 (8) Kichmond Pearson vs. William T. Crawford, North Carolina. 
 
 (9) Richard A. Wise w. William A. Young, Virginia. 
 
 (1) Roberts. 
 
 Polygamy. Majority report to exclude; rmnority report to admit and 
 then expel. Claimant excluded, hut by more than the two-thirds vote 
 necessa/ry for expulsion. 
 
 Majority report by Mr. Tayler; minority report by Mr. Littlefield 
 and Mr. De Armond. 
 
 Brigham H. Roberts, a polygamist, had been elected a Representa- 
 tive from Utah. This fact attracted much public attention, and was 
 officially brought to the notice of the House on the opening day of the 
 session. When the name of Mr. Roberts was called, at the swearing 
 in of members, on protest he was requested to step aside. Mr. Tayler 
 presented a resolution providing for the appointment of a special com- 
 mittee to consider both the prima facie right and the final right to the 
 seat. The resolution went over one day, and on the next day (Decem- 
 ber 4, 1899), Mr. Richardson presented a substitute resolution provid- 
 ing that Mr. Roberts be sworn in on his credentials and that the papers 
 be referred to the Committee on the Judiciary. After debate, the 
 substitute resolution was lost by a vote of 59 to 247, and the resolution 
 presented by Mr. Tayler was passed by a vote of 304 to 32. The 
 Speaker then appointed the special committee above named, and the 
 case was referred to it. On January 20, 1900, the elaborate reports of 
 the majority and minority of the committee were presented, and the 
 case was then debated for several days. The majority favored exclud- 
 ing Mr. Roberts by a simple resolution declaring the seat vacant; the 
 minority favored swearing him in as elected and then immediately 
 expelling him as unworthy. The resolution proposed by the minority 
 was finally lost by a vote of 81 to 244, and the resolution proposed by 
 the majority was passed by a vote of 268 to 50. So (on January 25, 
 1900) the seat was declared vacant. The resolution of exclusion, it will 
 be noted, was passed by much more than the two-thirds majority which 
 a resolution of expulsion would have required. 
 
 The majority of the committee prefaced its elaborate report with the 
 following introduction and summary of the argument: 
 
 Your committee, appointed December 5, 1899, in pursurance of the following 
 resolution — 
 
 "Whereas it is charged that Brigham H. Roberts, a Representative-elect to the 
 Fifty-sixth Congress from the State of Utah, is ineligible to a seat in the House of 
 Representatives; and 
 
 "Whereas such charge is made through a member of this House, on his responsi- 
 bility as such member and on the basis, as he asserts, of public records, affidavits, 
 and papers evidencing such ineligibility: 
 
 " Resolved, That the question of the prima facie right of Brigham H. Roberts to be 
 sworn in as a Representative from the State of Utah in the Fifty-sixth Congress, as 
 well as of his final right to a seat therein as such Representative, be referred to a special 
 committee of nine members of the House, to be appointed by the Speaker; and until 
 such committee shall report upon and the House decide such question and right the 
 
FIFTY-SIXTH CONGRESS. 583 
 
 said Brigham H. Roberts shall not be sworn in or be permitted to occupy a seat in 
 this House; and said committee shall have power to send for persons and papers 
 and examine witnesses on oath in relation to the subject-matter of this resolution — " 
 submit the following report: 
 
 The committee met shortly after its appointment, and in Mr. Eoberts's presence 
 discussed the plan and scope of its inquiry. Mr. Roberts submitted certain motions 
 and supported them by arjgument, questioning the jurisdiction of the committee and 
 its right to report against his prima facie rightto a seat in the House of Representatives. 
 The determination of these questions was postponed by the committee, to be taken 
 up in the general consideration of the case. 
 
 Subsequently certain witnesses appeared before the committee and were examined 
 under oath, in the presence of Mr. Roberts and by him cross-examined, relating to 
 the charge that he was a polygamist. This testimony has been printed and is at the 
 disposal of the members of the House. 
 
 The committee fully heard Mr. Roberts and gave him opportunity to testify if he 
 so desired, which he declared he did not wish to do, and, upon the testimony adduced 
 before it, unanimously agrees upon the following 
 
 FINDING OF FACTS. 
 
 We find that Brigham H. Roberts was elected as a Representative to the Fifty- 
 sixth Congress from the State of Utah, and was at the date of his election above the 
 age of 25 years; that he had been for more than seven years a naturalized citizen of 
 the United States and was an inhabitant of the State of Utah. 
 
 We further find that about 1878 he married Louisa Smith, his first and lawful wife, 
 with whom he has ever since lived as such, and who since their marriage has borne 
 him six children. 
 
 That about 1885 he married as his plural wife Celia Dibble, with whom he has ever 
 since lived as such, and who since such marriage has borne him six children, of whom 
 the last were twins, born August 11, 1897. 
 
 That some years after his- said marriage to Celia Dibble he contracted another 
 plural marriage with Margaret C. Shipp, with whom he has ever since lived in the 
 habit and repute of marriage. Your committee is unable to fix the exact date of this 
 marriage. It does not appear that he held her out as his wife before January, 1897, 
 or that she before that date held him out as her husband, or that before that date 
 they were reputed to be husband and wife. 
 
 That these facts were generally known in Utah, publicly charged against him dur- 
 ing his campaign for election, and were not denied by him. 
 
 That the testimony bearing on these facts was taken in the presence of Mr. Roberts, 
 and that he fully cross-examined the witnesses, but declined to place himself upon 
 the witness stand. 
 
 The committee is unanimous in its belief that Mr. Roberts ought not to remain a 
 member of the House of Representatives. A majority are of the opinion that he 
 ought not to be permitted to become a member; that the House has the right to 
 exclude him. A minority are of the opinion that the proper course of procedure is 
 to permit him to be swoni in and then expel him by a two-thirds vote under the 
 constitutional provision providing for expulsion. 
 
 Your committee desire to assert with the utmost positiveness at this point that not 
 only is the proposition of expulsion as applied to this case against precedent, but that 
 exclusion is entirely in accord with principle, authority, and legislative precedent, 
 and not antagonistic to any legislative action which the House of Representatives has 
 ever taken. 
 
 For convenience we present herewith, before proceeding to the extended argument 
 in support of the committee's resolution, the following: 
 
 SUMMARY. 
 
 Upon the facts stated the majority of the committee assert that the claimant ought 
 not to be permitted to take a seat in the House of Reprasentatiyes, and that the seat 
 to which he was elected ought to be declared vacant. 
 
 The minority, on the other hand, assert that he ought to be sworn in in order that 
 if happily two-thirds vote therefor he may be expelled. 
 
 Three distinct grounds of disqualification are asserted against Roberts. 
 
 I. By reason of his violation of the Edmunds law. 
 
 II. By reason of his notorious and defiant violation of the law of the land, of the 
 decisions of the Supreme Court, and of the proclamations of the Presidents, holding 
 himself above the law and not amenable to it. 
 
584 DIGEST OF CONTESTED ELECTION CASES. 
 
 No government could possibly exist in the face of such practices. He is in open 
 war against the laws and institutions of the country whose Confess he seeks to enter. 
 Such an idea is intolerable. It is upon the principle asserted in this ground that all 
 cases of exclusion have been based. 
 
 III. His election as Representative is an explicit and offensive violation of the 
 understanding by which Utah was admitted as a State. 
 
 THE PROPOSITION OF EXCLUSION. 
 
 The objection is made to the refusal to admit Roberts that the Constitution 
 excludes the idea that any objection can be made to his coming in if he is 25 years 
 of age, has been seven years a citizen of the United States, and was an inhabitant of 
 Utah when elected, no matter how odious or treasonable or criminal may have been 
 his life and practices. 
 
 To this we reply: 
 
 1. That the language of the constitutional provision, the history of its framing in 
 the constitutional convention, and its context clearly show that it can not be con- 
 strued to prevent disqualification for crime. 
 
 2. That the overwhelming authority of text-book writers on the Constitution is to 
 the effect that such disqualification may be imposed by the House, and no commen- 
 tator on the Constitution specifically denies it. Especial reference is made to the 
 works of Cashing, Pomeroy, Throop, Burgess, and Miller. 
 
 3. The courts of several of the States, in construing analogous provisions, have 
 with practical unanimity declared against such narrow construction of such constitu- 
 tional provisions. 
 
 4. The House of Representatives has never denied that it had the right to exclude 
 a member-elect, even when he had the three constitutional requirements. 
 
 5. In many instances it has distinctly asserted its right so to do in cases of disloy- 
 alty and crime. 
 
 6. It passed in 1862 the test-oath act, which imposed a real and substantial dis- 
 qualification for membership in Congress, disqualifying hundreds of thousands of 
 American citizens. This law remained in force for twenty years, and thousands of 
 members of Congress were Compelled to take the oath it required. 
 
 7. The House in 1869 adopted a general rule of order, pro\dding that no person 
 should be sworn in as a member against whom the objection was made that he was 
 not entitled to take the test oath, and if upon investigation such fact appeared he 
 was to be permanently debarred from entrance. 
 
 THE PROPOSITION OF EXPULSION. 
 
 The interesting proposition is made that the claimant be sworn in and then turned 
 out. Upon the theory that the purpose is to permanently part company with Mr. 
 Roberta, this is a dubious proceeding. Such action requires the vote of two-thirds of 
 the members. We ask if such a vote is possible or right, in view of the following 
 observations: 
 
 The expulsion clause of the Constitution is as follows: 
 
 "Each House may determine the rules of its proceedings, punish its members for 
 disorderly behavior, and, with the concurrence of two-thirds, expel a member." 
 
 No lawyer can read that provision without raising in his own mind the question 
 whether the House has any power to expel, except for some cause relating to the 
 context. The ablest lawyers from the beginning of the Republic have so insisted, 
 and their reasoning has been so cogent that these propositions are estabhshed, namely: 
 
 1. Neither House of Congress has ever expelled a member for acts unrelated to him 
 as a member or inconsistent with his public trust and duty as such. 
 
 2. Both Houses have many times refused to expel where the guilt of the member 
 was apparent; where the refusal to expel was put upon the ground that the House or 
 Senate, as the case might be, had no right to expel for an act unrelated to the mem- 
 ber as such, or becauFe it was committed prior to his election. 
 
 The most notable instances are the following: 
 
 IN THE SEN.\TE. 
 
 1 . The Humphrey Marshall case in 1796. Much dispute has arisen as to the ground 
 upon which the Senate refused to expel. The fact remains, however, that he was 
 charged with the commission of an offense— a grave offense in the State of Kentucky- 
 unrelated to him as a Senator, and the report of the committee embodied the propo- 
 sition that the Constitution did not give jurisdiction to the Senate to expel him 
 
FIFTY-SIXTH CONGRESS. 585 
 
 2. The case of John Smith arose in 1808. He was charged with participation in 
 Aaron Burr's conspiracy. The Senate refused to expel. 
 
 3. In 1893 an effort was made in the Senate to expel William N. Roach, a Senator 
 from North Dakota. He was cl^arged with having committed a felony some years 
 prior to his election. The case was elaborately argued on both sides, the objection 
 to his expulsion being grounded upon the proposition that in such case the Senate 
 had no right to expel. The subject was dropped; those who were prosecuting the 
 effort to expel him discerning, no doubt, that the Senate would never expel under 
 such circumstances. 
 
 IN THE HOUSE OP EEPHESENTATIVES. 
 
 1. 0. B. Matteson had committed a grave offense during the Thirty-fourth Con- 
 gress. He was elected to the Thirty-fifth Congress and was permitted to take his 
 seat without objection. A resolution of expulsion was introduced and referred to a 
 committee, which reported that the House had no authority to expel, because his 
 offense was committed while in a, previous Congress. The House sustained the 
 committee. 
 
 2. In the case of Oakes Ames and James Brcoks the special committee reported 
 in favor of expulsion. The Judiciary Committee reported against it, on the ground 
 that the House had no authority to expel for acts committed before that Congress. 
 The House refused to expel, and merely censured. «- 
 
 3. In the case of George Q. Cannon, Delegate from Utah in the Forty-third Con- 
 gress, 1874 and 1875, we find a series of events suggesting, in the light of this case, 
 how history repeats itself. 
 
 Cannon's seat was contested by Maxwell, who had received but a handful of votes, 
 and had no right whatever to the seat, even if Cannon was not entitled to it. The 
 claim was made that Cannon was a polygamist. There was no evidence at that time 
 before the House that he had married a plural wife after the act of 1862. If he had" 
 not he had violated no law. A resolution was adopted declaring that he was entitled 
 to the seat as Delegate, the claim being made that he might be proceeded against in 
 expulsion proceedings. Whereupon, on the same day. May 12, 1874, a committee 
 was appointed to investigate the question of Cannon's polygamy and the right of the 
 House to expel. It reported in January, 1875, that Cannon was a polygamist, and 
 brought in a resolution of expulsion. A vigorous minority report was filed, in which 
 the right of expulsion was combated on three grounds. 
 
 First. That the House had already declared that Cannon was entitled to the seat. 
 The force of the argument was apparent, for nothing had intervened to make him 
 any less entitled then than on the day his title was confirmed by the previous action 
 of the House. 
 
 Second. That when Utah was created as a Territory Congress knew it would send 
 Mormon Delegates, and it ought not now to complain that a Mormon had come to 
 the House. 
 
 Third.' That a graver ground of objection existed. "The question is," said the 
 report, " whether the House ought, as a matter of policy, or to establish a precedent, 
 expel either a Delegate or Member on account of alleged crimes or immoral practices 
 unconnected with their duties or obligations as Members or Delegates, when the 
 Delegate or Member possesses all the qualifications to entitle him to his seat." 
 
 The reasoning of the committee and the cogent force of an unbroken line of prece- 
 dents against expulsion seem to have profoundly impressed the House, for when a 
 couple of weeks later the case was called up and the question of consideration raised, 
 only a beggarly 21 could be found ready to take up the case, and it was never heard of 
 again. 
 
 Thus ended the first campaign to confirm a polygamist in his seat in the fond hope 
 that he might later be expelled. 
 
 4. The next is the case of Schumaker and King in connection with the China mail 
 service, August 9, 1876. The Committee on the Judiciary submitted a report, in the 
 course of which it asserted that the House of Representatives had no authority to 
 take jurisdiction of violations of law or offenses committed against a previous Con- 
 gress. Referring to the constitutional provision respecting expulsion, it says: 
 
 "This power is evidently given to enable each House to exercise its constitutional 
 function of legislation unobstructed." 
 
 The committee recommended that the House leave the charges against Schumaker 
 and King " where they are now," in court. 
 
 The minority report did not combat the position of the majority in so far as this 
 case is concerned. They say that — 
 
 "They do not deny but that there are limitations on the power of this House [to 
 expel] arising from the circumstances of particular cases and the relations of this 
 
586 DIGEST OF CONTESTKD ELECTION CASES. 
 
 House to the constituency of an accused member; therefore, as will be seen, the 
 undersigned need not go further in this case than to assert jurisdiction, because the 
 offenses complained of were not known to the constituents of the members in ques- 
 tion until after their election." 
 
 If there is any fact apparent in this case it is that the constituents of Mr. Roberts 
 knew all about him before his election. 
 
 Can there be room to doubt the projjer action of the House? Is it prepared to 
 yield up this salutary power of exclusion? Will it declare itself defenseless and 
 ridiculous? 
 
 Nor are those who assert that expulsion is the remedy necessarily barred from 
 voting for the resolution declaring the seat vacant. He must, indeed, be technical 
 and narrow in his construction of the Constitution who will not admit that if a vote 
 to declare the seat vacant is sustained by a two-thirds majority the Constitution is 
 substantially complied with. He may not agree with the committee that a mere 
 majority can exclude, but he can reserve the right to make the point of order that 
 the resolution is not carried if two-thirds do not vote for it. 
 
 On the question of pi'ima facie right the committee considered that 
 it was settled by the conclusions reached in regard to the final right. 
 "Both Houses of Congress have in innumerable instances exercised 
 the right to stop a member-elect at the threshold and refuse to permit 
 him to be sworn in until an investigation has been made as to his right 
 to a seat. In some cases the final right was accorded the claimant; in 
 manj' cases it was denied. This question, as we view it, is alwajj^s to 
 be answered from the standpoint of expediency and propriety. The 
 inherent right exists of necessity." 
 
 It is not true that the exercise of this right could block the organi- 
 zation of the House. All the members on the Clerk's roll, whether 
 sworn in or not, have a right to vote on organization and on the ques- 
 tion of swearing in members. "If every individual member had been 
 objected to seriatim the only objectionable result would have been the 
 inconvenience and delay involved in the time necessary to vote upon 
 all the cases. " 
 
 On the general question of constitutional qualifications the committee 
 said: 
 
 This question meets us at the threshold: Does the constitutional provision, "So 
 person shall be a Representative who shall not have attained to the age of 25 years, 
 and been seven years a citizen of the United States, and w'ho shall not, when elected, 
 be an inhabitant of the State in which he shall be chosen," preclude the imposition 
 of any disqualification by Congress or by either House? 
 
 Must it be said that the constitutional provision, phrased as it is, really means 
 that every person who is 25 years of age, and who has been for seven years a citizen 
 of the United States, and was, when elected, an inhabitant of that State in which 
 he was chosen, is eligible to be a member of the House of Representativee and must 
 be admitted thereto, even though he be insane, or disloyal, or a leper, or a criminal? 
 
 Is it conceivable that the Constitution meant that crime could not disqualify? The 
 whole spirit of government revolts against any such conception. 
 
 Not now discussing the question as to whether or not that constitutional provision 
 is exclusive, so far as ordinary qualifications are concerned, is it to be said that there 
 is in it no implied power of dkqaalifimtion for reasons which appeal to the common 
 judgment of mankind, and which are vital and essential to the very constitution and 
 integrity of the legislative body as such? 
 
 We are compelled to answer that tiiat provision, in the sense to which we have 
 just adverted, is not exclusive, and that reasonable disqualifications may attach to 
 certain individuals, which may, for the sake of argument, be assuuied to amount in 
 practice to added qualifications. 
 
 A marked distinction is to be made between arbitrary disqualifications and thoise 
 which arise out of the voluntary act of the individual who places himself, by the 
 commission of an offense against the law or civilization, within the prohibited clas.s. 
 We belieir, ii'lialenr ge)iernl slaicnvnlK may hare lieeii made by public men, that no coni- 
 mentator on the Constituliov, no court, or either House of Congress has ever questioned the 
 projiriety of that distinction, but that the contrary doctrine has been universally held where- 
 ever the question was clearly raised. 
 
FIFTY-SIXTH CONGRESS. 587 
 
 In our opinion it is demonstrable that no such exclusive meaning can be given to 
 the provision above quoted as is contended for on the other side of this proposition, 
 and that the sound rule is declared by Burgess in his work on Political Science and 
 Constitutional Law when, on page 52, he says: 
 
 "I think it certain that either House [of Congress] might reject an insane person 
 * * * or might exclude a grossly immoral person." 
 
 We desire at the very threshold of this discussion to lay down these general proposi- 
 tions, never to be forgotten and always to be kept clearly in mind: 
 
 1. That the House has never denied that it had the right to refuse to permit a 
 member-elect to be sworn in, although he had all of the three constitutional 
 qualifications. 
 
 2. That it has in many instances affirmatively declared that it had the right to thus 
 refuse. 
 
 3. That the right to so refuse is supported on principle, and by the overwhelming 
 weight of authority of constitutional writers and judicial opinions on analogous con- 
 stitutional questions; and 
 
 4. Upon the converse proposition of admission and then expulsion we assert this: 
 First. That the House has never declared that it had the right to expel a member 
 
 for acts unrelated to him as such or for acts committed prior to his election; and 
 
 Second. That both the House and the Senate have m many instances refused to 
 expel members where the proof of guilt was conclusive, but where the acts com- 
 plained of were unrelated to the members as such. 
 
 The committee then outlined the history of the legislation against 
 polygamy and the judicial opinions thereon. They also showed that 
 the claimant, Roberts, was not only a polygamist in violation of the 
 law, but that as recently as December 6, 1899, he had publicly pro- 
 claimed his defiance of the law and refused to obej' it, saying: 
 
 Even were the church that sanctioned these marriages and performed the cere- 
 monies to turn its back upon us and say the marriages are not valid now, and that 
 I must give these good and loyal women up, I'll be damned if I would. 
 
 The report continues: 
 
 We have thus presented to our view the status of Roberts. What are we going to 
 do about it? 
 
 We assert that it is our duty, as it is our right, to exclude him; to prevent his tak- 
 ing the oath and participating in the councils of the nation. 
 
 Three methods present themselves by which to test the soundness of this view: 
 
 First. On principle, and this involves — 
 
 (1) The nature of the legislative assembly and the power necessarily arising 
 therefrom; 
 
 (2) The express language of the constitutional provision; 
 
 (3) The reasons for that language; 
 
 (4) Its context and its relation to other parts of the instrument; 
 
 (5) The obvious construction of other portions of the same instrument necessarily 
 subject to the same rule of construction. 
 
 Second. The text-books and the judicial authorities. 
 
 Third. Congressional precedents. These are of two classes — 
 
 (11 Action respecting the rights of individual members; 
 
 (2) Acts of Congress and general resolutions of either House. 
 
 As to the first proposition, what is the argument on principle? We think it will 
 be undoubted that every legislative body has unlimited control over its own methods 
 of organization and the qualifications or disqualifications of its members, except as 
 specifically limited by the organic law. We do not think that this proposition needs 
 amplifying; it is axiomatic. It is apparent that every deliberative and legislative 
 body must have supreme control over its own membership, except in so far as it 
 may be specifically limited by a higher law; there is a distinction to be drawn 
 between the legislative power of a legislative body and its organizing power, or those 
 things which relate to its membership, and its control over the methods of perform- 
 ing its allotted work. That is to be distinguished from the legislative power to be 
 expressed in its final results. 
 
 When our Constitution was framed there was practically no limit to the right and 
 power in these respects of the English Parliament. Such power is necessary to the 
 preservation of the body itself and to the dignity of its character. In England it 
 was at one time admissible to permit the admission into the House of Commons of 
 minors, of aliens, and of persons not inhabitants of the political subdivision in which 
 
588 DIGEST OF CONTESTED ELECTION CASES. 
 
 they were elected. To this day it ia well known that an inhabitant of London may 
 be elected by a Scotch constituency, and a member has been elected by more than 
 one constituency to the same Parliament. 
 
 The wording of the Constitution is negative, thus not necessarily 
 excluding other than the specified qualifications, though it would have 
 been just as easy to make it positive if such had been the intention. 
 The first draft of the constitutional provision was in a positive form, 
 and the slight contemporaneous discussion was on this form. There 
 were some objections to the provision, but the next day it was put in 
 the present form and passed. The committee illustrated the pi-inciple 
 by numerous supposed cases of wrongdoing which would evidenth' 
 make it impossible for a member to sit in the House or to be admitted 
 if he were not yet sworn in, and added: 
 
 So much for illustrations upon that question. Look, now, at the last paragraph of 
 Article ^'I of the Constitution: 
 
 "The Senators and Representatives before mentioned, and the members of the 
 several State legislatures, and all executive and judicial officers, both of the United 
 States and of the several States, shall be bound by oath or affirmation to support this 
 Constitution." 
 
 Here is an affirmative declaration that a certain oath shall be administered to cer- 
 tain officials. If the theory of exclusion is applied to the qualification clause as to 
 Representatives, it must be applied to this clause, and therefore Congress has no 
 power to demand any other oath, or superadd to this oath any other provisions. 
 
 And yet the very oath we took as members of this House has additional provisions. 
 Congress passed also the test oath act in 1862, making vital additions to the constitu- 
 tional oath, and, indeed; adding a new ground of disqualification for members of 
 Congress. This act was passed by a large majority and compelled members of Con- 
 gress to submit to that oath for many years. Chief Justice Marshall, the great 
 expounder of the Constitution, in the case of McCulloch v. Maryland, declared that 
 "He would be charged with insanity who should contend that the legislature might 
 not superadd to the oath directed by the Constitution such other oath or oaths as its 
 wisdom might suggest," and the whole opinion in that case is addressed in principle 
 to the very doctrine that is here advocated. 
 
 If Congress could add to the constitutional oath, the same theory of construction 
 must permit it to at least add reasonable qualifications to the requirements for mem- 
 bers of the legislative body, at least to the extent of declaring disqualifications which 
 in their nature ought to bar a man from entrance into a great legislative body. 
 
 The same clause to which we have just referred has this provision: 
 
 "But no religious test shall ever be required as a qualification to any office or public 
 trust under the United States." 
 
 If the Constitution had laid down all the qualifications which Congress or any 
 other power had the right to impose, it was unnecessary to go on and declare that no 
 religious test should be required. That great instrument is inconsistent in its parts 
 and contradictory of itself if it be true that it meant that no disqualifications should 
 be provided except those named. Nor was it necessary, if the proviso means an 
 oath merely, that such exception should be made, for the preceding words of the 
 paragraph set out the required oath. 
 
 The effort to make the negative declaration of minimum qualifications exclusive 
 of all others, whatever the necessities of the House may be, falls to the ground if we 
 admit that the paragraph respecting oaths is in the same instrument as that which 
 defines the qualifications of members of Congress. 
 
 Of text-book authorities the committee referred to Story on the 
 Constitution, Burgess's Political Science and Constitutional Law, Pom- 
 eroy's Constitutional Law, Justice Miller's Lectures on the Constitu- 
 tion, Throop on Public Offices, and Cushing on Law and Practice of 
 Legislative Assemblies. The well-known statement of Story the com- 
 mittee disposed of as follows: 
 
 First. That it is dismissed in a very few words. Justice Story himself disclaims 
 explicitly in his work that he gives his own opinion as to what the Constitution 
 means, but asserts that he undertakes merely to give the statements of others. 
 
FIFTY-SIXTH CONGBESS. 589 
 
 Second. Thia statement of Judge Story does not at all interfere with the iirppoai- 
 tion we have laid down: That the power of the House to exclude from its mcmlier- 
 shffi^a person who is, for instance, disloyal, a criminal, insane, or infected with a 
 cqjragious disease is not superadding any qualifications, within the meaning of Story, 
 stitli as a property qualification or an educational qualification. 
 
 We find, however, that Story's expression, if it means all that is claimed for It by 
 the minority, does not accord with the opinion of other commentators, with the 
 courts, or with the Congressional precedents. 
 
 Of court decisions, the committee quoted from Barker v. The Peo- 
 ple (3d Cowen, N. Y.); Royall v. Thomas (28 Gratton (Va.), 130); 
 Commonwealth v. Jones and Cochran v. Jones (Kentuck}^); Mason v. 
 The State (68th Ohio State); Commonwealth ■«. Walker (83 Pennsj-l- 
 vania State, 105); Rogers v. Buffalo (123 N. Y., 184); Ohio ex rel. 
 Attorney-Generals. Covington (29 Ohio State, 102); Darrow ?'. The 
 People (8 Colo., 417). 
 
 They also referred to the case of Jeremiah Larned, excluded by the 
 legislature of Massachusetts in 1785, and to the cases of Niles, Thomas, 
 and Stark in the United States Senate, and to the Kentucky cases of 
 1867, the Whittemore case, and the case of George Q. Cannon, in the 
 House of Representatives. 
 
 Senator Niles appeared in the Senate on April 30, 1844, a short time 
 after being discharged from the insane asylum atf improved but not 
 completely restored to health. He was not sworn in until a committee 
 had inquired into the case and reported that he was not of unsound 
 mind in the technical sense of that phrase. 
 
 Philip F. Thomas was excluded from the Senate )jy resolution in 
 1867, on the ground that he had been disloyal and could not take the 
 test oath. 
 
 Benjamin Stark, appointed Senator from Oregon in 1862, was 
 accused of disloyaltj^ but the proof was not sufficient to cause a major- 
 itj' of the Senate to vote either to exclude or expel him. In a report 
 on the preliminary question, however. Senator L3^man Trumbull said: 
 
 It is admitted that neither the Senate, Congress, nor a State can superadd other 
 qualifications for a Senator to those prescribed by the Constitution, and yet either 
 may prevent a person possessing all those qualifications and duly elected from taking 
 his seat in the Senate. 
 
 A State, for instance, might arrest him for felony before he was 
 sworn in and keep him imprisoned through the term; Congress might 
 pass a law imposing disability to hold any office, including that of 
 Senator, as a punishment for crime; or the Senate might refuse to 
 admit a felon, an insane, or disloyal person, or one who was at the 
 moment of his application for admission violently disturbing the 
 session of the Senate. 
 
 In the Kentucky case, in 1867, the House refused to permit the 
 swearing in of the members-elect, when their credentials were pre- 
 sented, and referred the charges of disloyalty to the Committee on 
 Elections. At other times after the objection was made to the swear- 
 ing in of other members-elect the House assumed jurisdiction, tried 
 the cases in advance of administering the oath, and where, as some- 
 times had been the case, it appeared that the claimant had not been dis- 
 loyal, he was of course sworn in; in other cases he was excluded. On 
 March 22, 1869, the following was adopted as a standing rule of the 
 House, and therefore as the matured expression of its deliberate judg- 
 ment: 
 
 Resolved, That in all contested-election cases in which it shall be charged by a 
 party to the case, or a member of the House, that either claimant is unable under the 
 
590 DIGEST OF CONTESTED ELECTION CASES. 
 
 act approved July 2, 18b2, entitled "An act to prescribed the oath of office, and for 
 other purposes," it shall V)e the duty of the committee to ascertain whether such 
 disability exist, and if such disability shall be found to exist the t'ommittee shall so 
 report to the House and shall not further con8id(^r the subject without the further 
 order of the House, and no (■onii)ensation will be allowed by the House to any claim- 
 ant who shall not have been entitled at the time of the election and whose disloyalty 
 shall not have been removed by act of Congress. 
 
 In the Forty -first Congresw Representative Whittemore, who had 
 escaped expulsion for selling a cadetship by resigning, was again elected 
 at a special election, but was excluded by a vote of the House of 130 
 to 2-i after full debate. 
 
 George Q. Cannon was excluded from the Forty-seventh Congress, 
 to which he had been elected Delegate from Utah, on the ground of 
 polygamy. Speaking of this case the committee said: 
 
 The case of George Q. Cannon, who was excluded from the Forty-seventh Con- 
 gress as a Delegate on the ground that he was a polygamist, on principle clearly sus- 
 tains the proposition of exclusion of a member. 
 
 It is true that when excluded Cannon was merely a Delegate-elect from the 
 Territory of Utah and not a person elected to an office created by the Constitution. 
 
 Nevertheless, we assert that on principle that case can not be differentiated from 
 the case at bar. 
 
 Allen G. Campbell was a candidate for Delegate from the State of Utah against 
 George Q. Cannon in 1880. Campbell received about 10 per cent of the votes cast, 
 and the governor issued a certificate to him on the theory that Cannon was ineligible 
 to be a Delegate in Congress. Campbell's seat was contested by Cannon. The com- 
 mittee, in January, 1882, made a very elaborate report. All but one united in 
 declaring that Campbell, not having received a majority of the votes, was not enti- 
 tled to a seat, and the dissenting member finally agreed with the majority that what- 
 ever Cannon's rights might be, Campbell ought not to be seated. 
 
 A considerable majority of the committee further found that as Cannon was a 
 polygamist he was ineligible and disqualified to be Delegate in Congress. At this 
 time the Edmunds law had not been passed and there was no statutory ground of 
 ineligibility. 
 
 Some members of the committee undertook to differentiate between the right of 
 the House to exclude a member and its right to exclude a Delegate, while other 
 members insisted that, while there was a sharp distinction to be drawn between a 
 member and a Delegate, yet that in so far as the matter of ineligibility on the ground 
 of polygamy was concerned the same principle would apply to both. 
 
 This, then, was the condition of the Cannon case before the Edmunds law was 
 passed. The committee was unanimously of the opinion that Cannon was duly 
 elected a Delegate from the State of Utah and therefore that he was entitled to hold 
 the certificate of election; that he stood in the attitude of a man appearing before 
 the bar of the House with the proper certificate of the governor of the Territory of 
 Utah and with no infirmity except that which went to his disqualification, namely, 
 the fact of polygamy. 
 
 Before the case was taken up in the House for discussion and action the Edmunds 
 law was passed. Mr. Cannon in his speech says that there were some members of 
 the House who had told him that while they would not have excluded him under 
 the report of the committee, they would then vote to exclude him because of the 
 provisions of section 8 of the Edmunds Act; and Mr. Ranney, of Massachusetts, a 
 member of the Committee on Elections, who had -dissented from the majority report, 
 declared that he felt compelled to vote in favor of the exclusion of Cannon" because 
 of the passage of that law. 
 
 Nevertheless the fact appears, and we believe it to be the just inference from what 
 occurred from the report of the committee and the debate on the floor of the House, 
 that Cannon would have been excluded if the Edmunds law had never been passed. 
 The vote in favor of allowing him his seat was 79 and against it 123. 
 
 The committee quoted at length from the debate in the Cannon 
 case. In regard to the English precedents they said: 
 
 We have to say that after diligent search we find no cases where the House of 
 Commons ever held or decided that it had not the right to exclude at the very 
 threshold a member whose certificate or credentials were perfect and uncontested, 
 although the ground of exclusion was not a want of legal qualifications; and there 
 are scores of cases since 1780 where it has claimed and exercised that right. 
 
FIFTY -SIXTH CONGRESS. 
 
 591 
 
 Cases apparently inconsistent were explained as not really so. 
 
 It may be said tliat the House of Conmions has uniformly taken the view that 
 under the right to judge of the "quaUfications" of its members — tlieir legal election 
 and return being conceded — it rests wholly within the discretion of that body to 
 establish a new test or requiri'ment of qualification for membership, and that it may 
 be either mental, such as for imbecility or insanity, physical, as for paralysis, or for 
 grave offenses against criminal laws. 
 
 Thus we see that the Senate and the House have taken the ground that they had 
 the right to exclude for insanity, for disloyalty, and for crime, including polygamy, 
 and, as we believe, there is no case in either the House or the Senate, where the facts 
 were not disputed, in which either the Senate or House has denied that it had the 
 right to exclude a man, even though he had the three constitutional qualifications. 
 There is a large amount of debate, where opinions are given on both sides of the 
 proposition, but as against that is the never- varying action of the two bodies themselves. 
 
 Congress has, moreover, by law, imposed statutory disqualifications. 
 Acts of 1790 and 1791 disqualified bribe givers from holding any office 
 under the United States, and the context of many other statutes, as 
 well as of the Constitution itself, shows that the position of Repre- 
 sentative in Congress is such an " office." The test-oath act of July 2, 
 1862, was inxariably construed as applying to Representatives, and 
 ■ claimants were excluded under it. Section 8 of the Edmunds Act, 
 whatever its meaning, evidenced the legislative will 'to disqualify poly g- 
 amists for office. 
 
 In the very nature of things the House of Eepresentatives, wherever it is as a House 
 of Representatives, is in a place under the exclusive jurisdiction of the United States; 
 therefore when Roberts comes into the District of Columbia in the status of a polyg- 
 amist he is ineligible under the Edmunds Act to hold any office or place under the 
 United States, and therefore ineligible to hold the position of member of the House 
 of Representatives. 
 
 The committee summed up the argument on the second main ground 
 of disqualification as follows: 
 
 We assert before the House, the country, and history that it is absolutely and 
 impregnably sound, not to be effectively attacked, consonant with every legislative 
 precedent, in harmony with the law and with the text-books on the subject: ' 
 
 That Brigham H. Roberts's persistent, notorious, and defiant violation of one of 
 the most solemn acts ever passed by Congress, by the very body which he seeks now 
 to enter on the theory that he is above the law, and his defiant violation of the laws 
 of his own State, necessarily render him ineligible, disqualified, unfit, and unworthy 
 to be a member of the House of Representatives. And this proposition is a.sserted 
 not so much for reasons personal to the membership of the House, as because it goes 
 to the very integrity of the House and the Republic as such. 
 
 On the third main contention, the committee said: 
 
 We come noT\ to the third main' proposition, that his election involves a breach 
 of the compact and understanding b^ which Utah was admitted to the Union. 
 
 Utah was admitted to the Union with the distinct understanding upon both sides 
 that polygamous practices were under the ban of the church, prohibited and practi- 
 cally eradicated, both as a practice and a belief, and that they would not be 
 renewed. 
 
 The effort is made to alarm people upon this proposition that some similar objec- 
 tion might be made to representation from States in which the claim might be made 
 that the right to vote was denied to some citizens. It is a sufficient answer to this 
 to say that if such ground of complaint exists the Constitution specifically tells us 
 what our remedy is; and declares precisely, in the fourteenth amendment, what we 
 may do in any event when the right of suffrage is improperly denied. There is no 
 possible escape from that position, even assuming that there was anything in the 
 bogie man. 
 
 But as to Utah, she was admitted on the express statement that the practice of 
 polygamous living was interdicted by the church, was practically abandoned by the 
 people, and eradicated as a belief. Of course that sporadic instances of the viola- 
 tion of the law against cohabitation might occur no one doubted, 
 
592 DIGEST OF CONTESTED ELECTION CASES. 
 
 The committee gave an account of the public renunciation of polyg- 
 amy by the Mormon Church and of the arguments used at the time 
 Utah was admitted as a State, and added: 
 
 And .s(i the enabling act was parsed. Every incredulous member who cast doubt 
 upim the sincerity of polygamipts in Utah was whistled down the wind. Every 
 legislator who doubted if the funeral of polygamy had really taken place was 
 laughed to scorn. Polygamy was dead! That was the battle cry, and on it the bat- 
 tle was fought and won. 
 
 What would have become of the bill if Mr. Rawlins had declared that the State 
 of Utah, just about to be born, v\ould reserve the right to send a polygamist to Con- 
 gres,"? His bill would have been buried beneath an avalanche of votes beyond the 
 hope of resurrection. 
 
 The language of the enabling act is, "provided that polygamous or plural mar- 
 riages are forever prohibited." * * * 
 
 It is not to be assumed from the fact that a rare or sporadic case of polygamous 
 marriage occurred in Utah, or sporadic instances of unlawful cohabitation had corne 
 to light, that that would be a violation of the agreement; but we take it that it is in 
 the last degree a violation of the agreement or understanding when that State sends 
 to Congress a man who is himself engaged in the persistent practice of the very 
 thing the abandonment of which was the condition precedent to its admission; and 
 that man the most conspicuous defier of the law and violator of the covenant of 
 statehood to be found in Utah. 
 
 On the proposition to expel instead of exclude the committee held 
 "that neither Plouse ought to expel for anj- cause unrelated to the 
 trust or duty of a member." Story, sections 837, 838; Rawle, 48; 
 Paschal on the Constitution, 87, and the case of Hiss vs. Bartleett (3 
 Gray, 468) were referred to as sustaining this contention. The Senate- 
 cases of Marshall, Smith, and Roach, and the House cases of Herbert, 
 Matteson, Brooks and Ames, Cannon, Schumacher, and King, described 
 (except the Herbert case) above, were more elaborately analyzed, and 
 the committee concluded: 
 
 If the House takes the action which the minority of the committee insists it ought 
 to take, it will, for the first time in its history, part with a most beneficent power 
 which it has often exercised — a power that ought rarely to be exercised, but which 
 the House has never declared it did not possess. 
 
 Mindful of the gravity of the question and realizing the responsibility imposed 
 upon us, we recommend the adoption of the following resolution: 
 
 Resolved, That under the facts and circumstances of this case Brigham H. Roberts, 
 Representative-elect from the State of Utah, ought not to have or hold a seat in the 
 House of Representatives, and that the seat to which he was elected is hereby declared 
 vacant. 
 
 The minority held that the House had a right to expel the claimant 
 after admission, but not to exclude him before admission: 
 
 Finding that Mr. Roberts has been and is now a polygamist, unlawfully cohabiting 
 with plural wives, if the House of Representatives is for that reason of'the opinion 
 that he ought not to be a member thereof, what course should it rightfully pursue 
 under the Constitution, the supreme law of the land — exclude him or expel f\im? If 
 he is to be excluded, it must be Dccause he is for such reason legally ineligible or 
 disqualified. The purpose is to consider the question of constitutional right^ not of 
 arbitrary power, as it is conceded that the House has that power to exclude, with or 
 without reason, right or wrong. The exercise of such a power, without constitutional 
 warrant, would simply be brute force, a tyrannous exercise of power, unreviewable 
 by any tribunal. * * * 
 
 Is it seriously contended that this House can of its own motion, by its own inde- 
 pendent action, create for the purposes of this case a legal qualification or disqualifi- 
 cation? This House alone can not make or unmake the law of the land. Before 
 any one of its acts can become law it must be concurred in by the Senate and 
 approved by the President, or passed l)y two-thirds of each House over his veto. It 
 is quite clear that the House, by its independent action, can not, if it would, make 
 for this case any disqualifying regulation that would have the force of law. 
 
FIFTY-SIXTH CONGRESS. 593 
 
 On the general question of adding^ to the constitutional qualifications, 
 the minority said: 
 
 It ia a very grave question as to whether Oongress can, by a law duly enacted, add 
 to the qualifications negatively stated in the Constitution. There is no decision of 
 the United States Supreme Court directly or indirectly construing this provision. 
 There is no decision of any State court directly in point. 
 
 The various cases referred to by the majority were analyzed to show 
 that they did not apply to the principle of this case or did not estab- 
 lish the contention of the majority. The text-books cited by the 
 majority gave no authority for their opinions, and Story, Cooley, Gush- 
 ing, in a later statement (2d ed., p. 27, sec. 65), Tucker, Foster, Pas- 
 chal, McCrary, and Paine all agree that the constitutional requirements 
 are exclusive. 
 
 On the Whittemore case (Forty-first Congress) the committee said: 
 
 We have examined that case with care, and we feel bound to say that we do not 
 think it entitled to any weight as a precedent. The argument upon which it was 
 baaed shows the action of the House to have been unwarranted and ill advised in 
 excluding Whittemore. The only speeches made in support of the proposition were 
 by Mr. Logan. He does not in any way refer to the one great legal question involved, 
 as to whether Congress, to say nothing of the House, acting alone, had the power to 
 add to the qualifications specified in the Constitution, and that question was not 
 raised during the debate, although at that time (1870) several State courts, one at 
 least, had discussed it, People vs. Barker having been decided in 1824. 
 
 The House had, apparently, never heard that there was such a question. The 
 only provision of the Constitution that could possibly justify the action of the House, 
 that constituting the House the judge of the "elections, returns and qualifications of 
 its own members," was not referred to directly or indirectly, and if the debat« is the 
 criterion, the House acted without any reference to it whatever. The clause stating 
 the qualification was incidentally referred to once. Indeed, they apparently acted 
 upon an entirely different provision, that does not relate to exclusion or determining 
 eligibility or qualifications, and Mr. Logan distinctly based his case upon it when he 
 says: 
 
 "I base my opinion, first, upon the Constitution of the United States, which author- 
 izes Congress to prescribe rules and regulations for the government of their members^ 
 and provides that by a two-thirds vote either House may expel anyone of its mem- 
 bers without prescribing the offenses for which either House may expel." 
 
 He then proceeded to make this gratuitous and unwarranted assumption: 
 
 "This being the theory with which I start out, I then assume that where the House 
 of Eepresentatives has power to expel for an offense against its rules, or a violation 
 of any law of the land, it has the same power to exclude a person from its body." 
 
 Without giving any attention to the legal distinctions involved, or even referring 
 to the constitutional right of passing upon qualifications, or adverting to the fact that 
 exclusion is the act of a majority and expulsion of two-thirds, he begs the whole 
 question and assumes their identity. He quotes a statute which makes a disqualifi- 
 cation to hold ofiice absolutely dependent upon a conviction, and then assumes it 
 disqualified Whittemore, although there had been no conviction. He admits there 
 was no Congressional precedent for the action which he proposed. He cites the 
 Wilkes case in the English Parliament as a precedent, when, as he states it, that 
 case was directly in point against him. 
 
 Wilkes, he says, was elected four successive times to the same Parliament, three 
 times without opposition and the fourth time against an opposing candidate. Three 
 times he was expelled. The fourth time his opponent was seated. Neither time, 
 according to his statement, was Wilkes excluded. 
 
 Just how that case could be an authority for excluding as against expelling Whitte- 
 more we can not see. These considerations (and many more could be suggested), in 
 view of the fact that the House, under Mr. Logan's lead, absolutely refused to allow 
 any committee to examine, for the information of the House, the legal questions 
 involved, or to have the case referred to any committee — though such a course was 
 desired by such men as Poland, of Vermont, Farnsworth, of Illinois, and Schenck 
 and Garfield, of Ohio— and would not allow Schenck and Garfield to be heard on the 
 
 H. Doc. 510 38 
 
594 DIGEST OP CONTESTED ELECTION OASES. 
 
 law for even ten minutes each, deprive this case, in our opinion, of all weight as a 
 precedent. ^ 
 
 The minority did not agree with the reasoning of the majority on 
 the general principle expressed. If the Congress or the House can 
 add to the qualifications of Representatives named in the Constitution, 
 they can add to them to any extent. The power is unlimited or it does 
 not exist, and if it is unlimited it leads to absurd conclusions-. More- 
 over, the debates in the Constitutional Convention and the papers in 
 the Federalist clearly show that the only contemporaneous opinion was 
 that the constitutional qualifications were exclusive. The change in 
 phraseology from the first to the second draft was made by a committee 
 authorized to revise the style and arrangement of the articles referred 
 to it, but not to alter their sense. To suppose that they did so would 
 be to impeach either the character or the intelligence of some of the 
 most illustrious men in our history. 
 
 The miTiority quoted from the text-books above mentioned and from 
 Thomas vs. Owens (4 Md., 223), Page vs. Hardin (8 Ben. Mon., 661), 
 and Black vs. Trover (79 Va., 125) in support of their contention that 
 "certainly the great weight of authority is against the right to add, 
 even by law, to the qualifications mentioned in the Constitution." 
 
 The disqualification of the Edmunds Act, the minority held, could 
 not in any case apply to Mr. Roberts. Its only disqualification was 
 against. holding any " ofiice under the United States," and the entire 
 context of the Constitution, as well as the rulings of the courts and of 
 the two Houses, shows that the position of Representative in Congress 
 is not such an "office" within the meaning of the Constitution. 
 Moreover, the disqualification applied only to acts committed "in a 
 Territory or other place over which the LFnited States have exclusive 
 jurisdiction." Mr. Roberts's former polygamy was committed in the 
 Territory of Utah, but to make him now ineligible for past crime 
 would be impossible, and his present polygamy could not possibly be 
 committed within a Territory which had ceased to exist.* The condi- 
 tion of the enabling act was met by Utah in the act of becoming a 
 State, and the condition, being finally fulfilled, ceased to exist. 
 
 It seems to us beyond question that this act (the Edmunds Act) does not now 
 apply to Mr. Roberts. Then there is no law having any application to this case, by 
 which the attempt is made to add anything to the constitutional qualifications. 
 This House, by its independent action, can not make law for any purpose. The 
 adding by this House, acting alone, of a qualification not established by law would 
 not only be a violation of both the Constitution and the law, but it would establish 
 a most dangerous precedent, which could hardly fail to "return to plague the 
 inventor." You might feel that the grave moral and social aspects of this case 
 allowed you to — 
 
 Wrest once the law to your authority 
 
 To do a great right, do a little wrong. 
 
 But what warrant have you, when the barriers of the Constitution are once broken 
 down, that there may not come after us a House with other standards of morality 
 and propriety, which will create other qualifications with no rightful foundations, 
 that, in the heat and unreason of partisan contest — since there will be no definite 
 
 ' This case, it will be noticed, is not among those given in this "Digest" in connec- 
 tion with the Forty-first Congress. It has been omitted from all collections of- 
 contested election cases, never having gone to a comimittee or been reported on, and 
 thus never having become a contested election case in the usual sense of the words. 
 
 '' The majority had met this objection by saying that it is status, not act, that con- 
 stitutes the disqualification, and status adheres to the person at all times and places. 
 Moreover, whatever may be the case with Utah, the House of Representatives is cer- 
 tainly in a place "over which the United States have exclusive jurisdiction." 
 
FIFTY-SIXTH CONGRESS. 595 
 
 standard by which to determine the existence of qualifications — will add anything that 
 may be necessary to accomplish the desired result? Exigency will determine the 
 sufficiency. It would no longer be a government of laws, but of men. To thus 
 depart from the Constitution and substitute force for law is to embark upon a track- 
 less sea, without chart or compass, with almost a certainty of direful shipwreck. 
 
 It is contended that if all other reasons assigned for exclusion are found to be 
 insufficient, as we believe they are, still Mr. Roberts should be excluded, upon the 
 alleged ground that, by virtue of the enabling act, a compact now exists between the 
 United States and Utah which has been violated by the election of Roberts to Con- 
 gress, and that the State can be in this manner punished for such breach of the com- 
 pact. Compact is synonymous with contract. The idea of a compact or contract is 
 not predicable upon the relations that exist between the State and the General Gov- 
 ernment. They do not stand in the position of contracting parties. The condition 
 upon which Utah was to become a State was fully performed when she became a 
 State. The enabling act authorized the President to determine when the condition 
 was performed. He discharged that duty, found that the condition was complied 
 with; and that condition no longer exists. 
 
 What did Congress require by the enabling act? Simply that "said convention 
 shall provide by ordinance irrevocable," etc., and the convention did in terms what 
 it was required to do. It was a condition upon the performance of which by the 
 "convention'' the admission of Utah depended. Its purpose accomplished, itsoffice 
 is gone, and as a condition it ceases to exist. No power was reserved in the enabling 
 act, nor can any be found in the Constitution of the United States, authorizing Con- 
 
 fress, not to say the House of Representatives alone, to discipline the people or the 
 tate of Utah because the crime of polygamy or unlawful cohabitation has not been 
 exterminated in Utah. Where is the warrant to be found for the exercise of this 
 disciplinary, supervisory power? This theory is apparently evolved for the purposes 
 of this case, is entirely without precedent, and has not even the conjecture or dream 
 of any writer or commentator on the Constitution to stand upon. 
 
 The right to expel a member, on the other hand, is absolute, and 
 limited only by the condition that it can be exercised only by a tv^o- 
 thirds majority. The right is inherent, in the nature of things, as well 
 as expressly conferred. The minority quoted authorities on this point, 
 and concluded: 
 
 It is proper to observe that the determinations of the court and the opinions of 
 eminent legal authors, unexcelled in reputation and learning, are entitled upon 
 these propositions to great weight, as they are in every instance the result of careful, 
 dispassionate, and dismterested research and sound reasoning, unaffected by consid- 
 erations that must necessarily have been involved in legislative precedents. The 
 two-thirds limitation upon the right to expel not only demonstrates the wisdom of 
 the fathers, but illustrates the broad distinction between exclusion and expulsion. 
 
 A small partisan majority might render the desire to arbitrarily exclude, by a 
 majority vote, in order to more securely intrench itself in power, irresistible. Hence 
 its exercise is controlled by legal rules. In case of expulsion, when the requisite 
 two-thirds can be had, the motive for the exercise of arbitrary power no longer 
 exists, as a two-thirds partisan majority is sufficient for every purpose. Hence expul- 
 sion has been wisely left in the discretion of the House, and the safety of the mem- 
 bers does not need the protection of legal rules. 
 
 It seems to us settled, upon reason and authority, that the power of the House to 
 expel is unlimited, and that the legal propositions involved may be thus fairly sum- 
 marized: The power of exclusion is a matter of law, to be exercised by a majority 
 vote, in accordance with legal principles, and exists only where a member-elect 
 lacks some of the qualifications required by the Constitution. The power of expul- 
 sion is made by the Constitution purely a matter of discretion, to be exercised by a 
 two-thirds vote, fairly, intelligently, conscientiously, with a due regard to propriety 
 and the honor and integrity of the House and the rights of the individual member. 
 For the abuse of this discretion we are responsible only to our constituents, our con- 
 sciences, and our God. 
 
 We believe that Mr. Roberts has the legal, constitutional, right to be sworn in as 
 a member, but the facts are such that we further believe the House, in the exercise 
 of its discretion, is not only justified, but required by every proper consideration 
 involved, to expel him promptly after he becomes a member. 
 
 We recommend the following as a substitute for the resolution proposed by the 
 committee: 
 
596 DIOEST OF CONTESTED ELECTION CASES. 
 
 Resolved, That Brigham H. Roberts, having been duly elected a Kepresentative in 
 the Fifty-sixth Congress from the State of Utah, with the qualifications requisite for 
 admission to the House as such, is entitled, as a constitutional right, to take the oath 
 of office prescribed for members-elect, his status as a polygamist, unlawfully cohabit- 
 ing with plural wives, affording constitutional ground for expulsion, but not for 
 exclusion from the House. 
 
 And if the House shall hold with us and swear in Mr. Roberts as a member, we 
 shall, as soon as recognition can be had, offer a resolution to expel him as a polyga^ 
 mist, unlawfully cohabiting with plural wives. 
 
 [Report 85, first session Fifty-sixtli Congress.] 
 
 (2) Evans vs. Tukner. 
 
 Bribery. Rep(jrt for contestee., who retained the seat. 
 
 Report by Mr. Linney. 
 The report is as follows: 
 
 The Committee on Elections No. 1 submit the following report in the contested- 
 election case of Hon. Walter Evans to. Hon. Oscar Turner, from the Fifth Congres- 
 sional district of the State of Kentucky. 
 
 The grounds of contest, as alleged by the contestant as against the contestee, are 
 fraud and bribery alleged to have been committed in the election in said district at 
 the last election for Congress in that district by the contestee and his political sup- 
 porters. The specifications of fraud and bribery are denied by the contestee in his 
 answer to the notice of the contestant. The official returns show a plurality for the 
 contestee of 568 votes. There were 340 pages of testimony in the record. The com- 
 mittee have examined the evidence and heard arguments of counsel, and we make 
 the following report and recommend the adoption of the accompanying resolutions. 
 
 The evidence offered by the contestant tends to prove the allegations of fraud and 
 bribery, and much of it discloses the resort to methods that were disreputable. Among 
 other things it is in evidence that on the morning of the election a circular was issued 
 and generally distributed in the city of Louisville among the political workers of the 
 contestant, printed on the paper of the Congressional campaign committee, on that 
 date, and containing a proposition to place $100 in each precinct, and requesting cap- 
 tains of each ward, if they do not get the money by 6.30 on the morning of election, 
 to come to headquarters. This circular was issued by enemies of contestant. This 
 is a novel method in the history of political struggles in the United States, and in the 
 opinion of the committee demands the unqualified condemnation of the committee. 
 This, with the evidence tending to prove fraud and bribery in other respects, in our 
 opinion, teiids strongly to establish the contention of contestant, but does not show 
 that contestee .was a party to such fraud. 
 
 There is no evidence tending to show that the contestee had anything to do with 
 this fake circular, and there is much evidence offered by the contestee tending to 
 show that the j)ropositions of bribery came from persons who had organized for the 
 purpose of obtaining money from some one — anyone from whom they could obtain it. 
 Upon a careful consideration the committee is unable to determine the exact number 
 of votes tainted and vitiated by fraud and bribery. As the proof fails to disclose 
 that enough votes were thus vitiated to overcome the contestee' s plurality of 568 
 votes as shown by the returns, the committee recommend the adoption of the follow- 
 ing resolutions: 
 
 Resolved, That Walter Evans was not elected a member of the Fifty-sixth Congress 
 of the United States from the Fifth Congressional district of Kentucky, and is not 
 entitled to a seat therein. 
 
 Resolved, That Oscar Turner was elected a member of the Fifty-sixth Congress from 
 the Fifth Congressional district of the State of Kentucky, and is entitled to a seat in 
 the Fifty-sixth Congress. 
 
 Thie resolutions were passed by the House on February 5, 1900, 
 without debate or division. 
 
 [Report 198, first session Fifty -sixth Congress.] 
 
fifty-sixth congress. 597 
 
 (3) Aldrich vs. Bobbins. 
 
 Fraud. Majority report for contestant; minority report for contestee. 
 Contestant seated. 
 
 Majority report by Mr. Mann; minority report by Mr. Bartlett. 
 
 The issues in this case were similar to those in the previous cases 
 from the same district (the Fourth Alabama) and it will therefore.not 
 be necessary to go into details as to particular precincts. According 
 to the returns, contestee had a majority of 1,230. In the five "white 
 counties" contestant had a majority in four and contestee a small 
 majority in the fifth, but in Dallas County, the "black county," con- 
 testee was returned as receiving 2,488 and. contestant 392 votes. The 
 committee referred to the recent history of the district, since the last 
 apportionment, as follows: 
 
 In accordance with the official returns, a certificate of election was issued to Mr. 
 Robbins, by virtue of which he now occupies a seat in the House. 
 
 The contest instituted by Mr. Aldrich rests solely upon the claim of alleged frauds 
 and errors in Dallas County. No objection is made by either Mr. Aldrich or Mr. 
 Robbins as to the returns from any of the other counties in the district. 
 
 The records of Congress show that this is the third contest instituted by the con- 
 testant for a seat in the House of Representatives from the same Congressional 
 district. The public records of Congress show that each of these three contests insti- 
 tuted by Mr. Aldrich has turned mainly upon the alleged commission of election 
 frauds in the county of Dallas. 
 
 At the Congressional election of 1894 Mr. Aldrich and Mr. Robbins were the 
 respective rival candidates for Congress, and the official returns from Dallas County 
 gave to Mr. Robbins 5,462 votes and to Mr. Aldrich 72 votes. 
 
 The Committee on elections ot the Fifty-fourth Congress, to which the contest of 
 Aldrich vs. Robbins was submmitted, made a report to the House showing that such 
 gross frauds had beer, committed in .Dallas County that a plurality of the committee 
 recommended that Mr. Robbins' s vote in Dallas County be cut down from 5,462 to 
 568, though two Republican members of the committee thought that Robbing should 
 be allowed 1,274 votes. On the strength of the report of the committee Mr. Robbins 
 was declared not elected, and the seat was awarded by the House to Mr. Aldrich. 
 
 At the Congressional election of 1896 Mr. Aldrich and Mr. Thomas S. Plowman 
 were the rival candidates. 
 
 The official returns of Dallas County gave to Mr. Plowman 4,289 votes and to Mr. 
 Aldrich 1,200 votes. 
 
 The Committee on Elections No. 1 of the Fifty-fifth Congress, on the contest insti- 
 tuted by Mr. Aldrich, reported to the House that such gross frauds were shown to 
 have been committed in Dallas County at the election that it found Plowman's 
 official returns of 4,289 votes should be cut down to 809 votes; and on the strength 
 of that report Mr. Plowman was declared not elected and Mr. Aldrich was awarded 
 a seat in the House. 
 
 It will be noticed that of the 6 counties in the district, each of them except Dallas 
 County, according to the census of 1890, contained more white voters than colored 
 voters. 
 
 Of these 5 white counties Aldrich carried all but one with fair majorities at the 
 election of 1898, and in the one white county carried by Robbins his majority was 
 less than 200. 
 
 Mr. Robbins, who was the Democratic candidate, relies for his majority on Dallas 
 County, which in 1890 had 2,146 white voting population as against 8,531 colored. 
 That Mr. Robbins was justified in attempting to gain a seat in Congresc by striving 
 to obtain the colored vote your committee readily admits. If no fraud was com- 
 mitted and Mr. Robbins was elected by the aid of colored votes, that ought to cast no 
 reflection upon him, and his seat in this House should be secure; but if the election 
 in many of the precincts in Dallas County has been made a mockery and a farce, and 
 the commission of crime and fraud in connection with the election has come to be 
 considered by the election officials there the proper course to be pursued, and through 
 such frauds and crime the election returns have been so manipulated and manufac- 
 tured as to overbalance the votes really cast in the white counties by tl;e votes 
 
598 DIGEST OF CONTESTED ELECTION CASES. 
 
 fraudulently claimed to have been cast in Dallas County, then your committee think 
 that a most careful examination should be made for the purpose of determining who 
 in fact received the majority of the votes honestly cast. 
 
 The committee quoted from the laws of Alabama, and said: 
 
 It will be noticed that the Alabama law provides that the judge of probate, the 
 sheriff, and the clerk of the circuit court must, at least thirty days before the hold- 
 ing of any election in their county, appoint three insjiectors for each place of voung, 
 two of whom shall be members of opposing parties, if practicable, and that it shall 
 be the duty of the sheriff to notify such inspectors of their appointment within ten 
 days after such appointment. 
 
 The three county officers of Dallas County who constituted this appointing board 
 were all Democrats, and supported Mr. Bobbins at the election. 
 
 It appears by the report of the committee in the Fifty-fifth Congress that in the 
 Congressional election of 1896 the appointing board was composed wholly of Demo- 
 crats, and that, although at that time lists were submitted to them of suitable men 
 in each precinct by the Republican and Populist managers for Mr. Aldrich, they did 
 not appoint a single Republican or Populist inspector of election. 
 
 There are 31 election precincts in Dallas County. In 1898, at the proper time, a 
 request was submitted to the probate judge, sheriff, and circuit clerk of Dallas County 
 by the chairman of the People's Party c f Dallas County, the chairman of the Repub- 
 lican party of Dallas County, the chairman of the Aldrich campaign committee, and 
 by Mr. Aldrich himself, all joining in the one request, asking for the appointment of 
 a citizen named in the request for each of the precincts as an inspector to represent 
 the Republican party and People's Party. In 20 of the precincts the respective 
 inspectors asked for by the Republican committee were named by the appointing 
 board. In 11 of the precincts, without any satisfactory reason or explanation, the 
 persons requested by the Republican party managers were not appointed, but either 
 some lame or illiterate person or Democrat appointed in their stead. 
 
 Of the 20 precincts in which the regular Republican inspectors were appointed, 
 your committee has followed the oflicial returns in all but 3. In the 11 precincts in 
 which the persons regularly presented for Republican inspectors were unreasonably 
 rejected, your committee finds sufficient fraud in 7 precincts to warrant the rejection 
 of the official returns. In 2 other of these 11 precincts no election was held. As to 
 1 other, your committee disregards the evidence of fraud because offered as rebuttal 
 and not as direct testimony. 
 
 But not only did the appointing board refuse to give proper representation to Mr. 
 Aldrich in the election officials in 11 precincts, but they also neglected and refused 
 to give him information prior to election day as to what election officers had been 
 selected for any of the precincts. The chairman of Mr. Aldrich' s campaign commit- 
 tee, by a registered letter, made application to the probate judge of Dallas County for 
 a certified copy of the names of the inspectors and returning officers, and offered to 
 pay the legal fees in order to get such copy. The only answer he could obtain from 
 the appointing board was the ordinary postal-card receipt returned to the sender in 
 cases of registered mail, stnd which in this case was signed by the probate judge. 
 
 The provision of law requiring the sheriff to notify the Bersons appointed mspec- 
 tors within ten days of their appointment was generally disregarded. Mr. Aldrich 
 and his campaign managers did not know, and had no way of ascertaining, who were 
 to be the election officials in the various precincts prior to the day of election, and 
 they did not know, and had no way of ascertaining, which of the names suggested 
 by them for inspectors had been selected by the appointing board. 
 
 The public records of the Fifty-fourth Congress show that in the election of 1 894 
 the colored voters who were supporting Mr. Aldrich were requested in Dallas 
 County to remain away from the polls, and that they did so remain away and did 
 not vote, but that, notwithstanding this, the election officials in the various precincts 
 entered their names on the poll lists as voting, and counted the supposed ballots cast 
 by them, and made returns accordingly in favor of Robbins, so that the House in 
 the Fifty-fourth Congress threw out between four and five thousand votes which 
 had been fraudulently returned as cast, but which in fact had never been cast. 
 
 The public records of the Fifty-fifth Congress show that at the election of 1896 in 
 many precincts the colored voters remained away from the polls, and yet the poll 
 lists were padded and votes fraudulently returned which had never been cast; that 
 in other precincts votes which were cast for Mr. Aldrich were fraudulently counted 
 by the solid Democratic election boards for his opponent. 
 
 It 1.5 not to be wondered at, then, that in 1898, when he could not ascertain whether 
 he was to have representation among the election officials at any of the precincts, a 
 request was made by Mr. Aldrich's campaign managers that his supporters should 
 
FIFTY-SIXTH CONGRESS. 599 
 
 stay away from the polls in certain precincts. Such a request was issued in fact, and 
 the Aldrich supporters in precincts 3, 5, 7, 8, 9, 12, 13, 14, 15, 24, 25, 27, 28, 29, 30, 
 31, 32, 33, 34, and 35 were instructed not to vote, while his supporters in precincts 
 1, 2, 4, 6, 10, 11, 16, 22, 23, 26, and 36 were requested to vote. 
 
 Your committee are of the opinion that any man of ordinary sense and with but 
 even a slight knowledge of elections in Dallas County, as disclosed by the public 
 records of Congress, would not expect a fair election to occur in precincts where 
 representation was denied to the one party, and all of the election officials conceded 
 supporters of the other. 
 
 No just election is intended to be had where the appointing board selecting the 
 election officials denies representation to the opposing party. The only purpose of 
 packing the election officials of a precinct is to commit fraud more easily. The only 
 purpose of appointing three Democratic inspectors and other Democratic officials 
 entire, in the precincts in Dallas County, was to commit fraud in the interest of the 
 Democratic candidate, and in the Congressional election of 1898 there was no candi- 
 date for any other office than Congress. 
 
 Although we do not find it necessary to rest our conclusion in this case upon the 
 following proposition, yet we still affirm, as a matter of proper statement — 
 
 That in view of past experience in Dallas County elections, Mr. Aldrich was 
 entitled at the election of 1898 to notify his supporters to remain away from the polls 
 at all precincts where he was not given representation among the election officers. 
 To request his supporters to vote at such precincts would be only to increase the vote 
 of his opponent. If his voters remained away from the polls and counted the persons 
 who went inside of the polls, they had a check on the number of votes which could 
 be returned for his opponent, but if they voted themselves they would only add to 
 the vote counted to the opponent, without any satisfactory method of preventing the 
 fraud. And in those precincts where Mr. Aldrich was entitled to request his sup- 
 porters to remain away from the polls, because of proper and well-grounded expec- 
 tation of intended fraud, we further think that it would be a travesty upon justice to 
 permit his opponent to be allowed the votes which were cast at the election in his 
 favor. 
 
 It is the duty of this House to give some incentive to just elections in such districts 
 (or rather in this district, because it has no equal), and the only way to give the 
 incentive to fair elections in Dallas County is to compel the officers there to allow 
 official representation to both parties, or to disregard the returns from such precincts 
 in those cases where the Aldrich supporters for sufficient reason remained away from 
 the polls. 
 
 The committee then analyzed the evidence of fraud in the precincts 
 in contest, calling attention in some cases to the fact that it was the 
 same sort of fraud, committed by the same persons, that had been 
 found in these precincts by the committee in the previous Congress. 
 The committee rejected the returns or the vote of these precincts 
 according to the circumstances. In the case of the Selma precinct part 
 of the testimony taken in time for rebuttal was claimed by contestee 
 to be testimony in chief. The committee said: "We have concluded, 
 in order to give contestee every right to which he can possibly be 
 entitled, to disregard this evidence." The returns were, however, 
 thrown out on other evidence. Most of the votes were proved aliunde 
 on both sides in this precinct and were counted as proved. 
 
 On all the findings contestant was shown to have a majority of 206 
 in the district and the committee recommended resolutions declaring 
 him elected. ' 
 
 The minority claimed that the testimony in chief taken in time for 
 rebuttal which the majority professed to disregard had in fact been 
 considered, and that the vote of Selma could not have been thrown out 
 without it. They also complained that in the rejected precincts the 
 majority had counted the vote proved aliunde wherever the contestant 
 had proved the most votes, and had refused to count it wherever con- 
 testee had shown the most votes. 
 
 The rule of law which requires that when a precinct has been rejected for fraud in 
 the conduct of the election the party shall be entitled to receive the votes proven by 
 
600 DIGEST OF CONTESTED ELECTION CASES. 
 
 aliunde to have been cast for him is not applied when it benefits the contestee, but is 
 applied when it benefits the contestant. The universal rule of law is that where the 
 evidence shows the returns to be false and not a true statement of the votes cast such 
 returns are impeached and destroyed, but that the true vote may be proven by call- 
 ing the electors whose names are on the poll list as having voted at such election, 
 and such votes as are proven by competent evidence should be counted for each 
 candidate. Fraud does not invalidate the legal vote cast, but simply makes it neces- 
 sary for those claiming the benefit of it to prove the vote. The rule of rejecting an 
 entire poll is not to be adopted if it can be avoided. No investigation should be 
 spared which would reach the truth without resorting to it. When a return is 
 rejected for fraud this will not disfranchise the legal voters of the precinct, but the 
 true vote may be proven by competent evidence. 
 
 These principles of law have been uniformly held to be correct in many contested- 
 election cases decided by the House, and sustained by all the authorities, some of 
 which will be hereinafter cited. 
 
 Before proceeding to discuss the several precincts we desire to say that if all of 
 the precincts attacked are rejected, and the contestant and contestee are credited 
 with the votes which they proved by the voters whose names are on the poll list 
 were cast for each, then the contestant will not be entitled to a seat in this Congress, 
 and it will appear that he was not elected, but that the contestee was elected by a 
 very considerable majority. 
 
 The minority also denied that contestant's supporters had been arbi- 
 trarily denied representation on the election boards. There was no 
 law to compel the appointing board to choose the persons named by 
 contestant. It was also not true that contestant had been refused 
 information in regard to the appointments. 
 
 Another view we desire to present to the House, before proceeding with the details 
 of the various precincts, is that the election in Dallas County was conducted, not for 
 the purpose of securing votes for Mr. Aldrich, or having those who claimed to be his 
 supporters to vote for him, but was conducted solely with the view of having a con- 
 test made after the election, and to transfer the election from the Fourth district of 
 Alabama to the House of Eep^esentatives in Washington. 
 
 The minority then discussed the precincts in detail, showing that the 
 evidence was not in most cases sufficient to establish the facts on which 
 the majority based their decision. On the question of failure to appoint 
 Republican election officers thej' said: 
 
 These requirements as to the appointment of clerks are not mandatory, out are 
 directory, and an unintentional failure to comply with them would not vitiate the 
 returns. In order for the failure to do certain specified acts or the doing of certain 
 prohibited specific acts to be fatal to the validity of the election the statute must 
 declare such acts or the omission to dp such things as fatal to the election; that is, in 
 order to destroy a return, for the failure of the ofiicers to perform certain require- 
 ments in the method of conducting the election, the law must be mandatory — ^thatis, 
 it must declare tha^ the failure to perform these duties avoids the election. Igno- 
 rance, inadvertence, mistake, or even intentional wrong on the part of the officials 
 should not be permitted to disfranchise the district, and unless the statute plainly 
 shows that the legislature intended compliance with the provision in relation to the 
 manner of procedure as essential to the validity of the election it is to be regarded as 
 directory only. Nor are statutory provisions relating to elections rendered manda- 
 tory by the circumstance that the officers of the election are criminally liable for 
 their violation. The rule prescribed by law for conducting elections is designed 
 chiefly to afford opportunity for the people to exercise the elective franchise, and to 
 prevent illegal voting, and to ascertain the true result. As such rules are directory, 
 and not mandatory, a departure from the mode prescribed will not vitiate the returns 
 of the election. 
 
 According to the findings of the minority, contestee had a majority 
 of 1,138 votes. If, however, all the returns from all the precincts in 
 contest should be rejected, and all the votes proved aliunde counted, 
 contestee would still have a majority of 389. The minority therefore 
 recommended resolutions declaring contestee elected. 
 
FIFTY-SIXTH OONGBESS. 601 
 
 This case was first called up on March 1, 1900, but the House, by a 
 vote of 137 to 14tt, refused to consider it. Later in the day it was 
 called up under the call of committees, but was ruled out of order. It 
 was again called up as a privileged question, and consideration was 
 again refused by a vote of 128 to 1B2. The next day it was a^ain 
 called up, and the House, by a vote of 136 to 129, decided to consider 
 it. After a debate of several days the substitutes presented by the 
 minority were lost by a vote of IM to 138, and the resolutions pre- 
 sented by the majority were passed by a vote of 141 to 135. Then, 
 on March 8, 1900, Mr. Aldrich was sworn in. 
 
 [Keport 327, first session !Fifty-sixth Congress.] 
 
 (4) Wilcox. 
 
 Treason/ iigamy,' no valid election IcCw. He^port for sitting me7riber, 
 who retained the seat. 
 
 Report by Mr. Tayler. 
 The report is as follows: 
 
 Your committee, to whom were referred the charges preferred against Robert W. 
 Wilcox, a Delegate from Hawaii, present the following report: 
 
 The charges against Wilcox divide themselves into three general heads: 
 
 First, that he was guilty of bigamy; 
 
 Second, that he was guilty of treason against the United States; 
 
 Third, that there was no valid election for Delegate from Hawaii. 
 
 As to the first of these charges, it appeared that Wilcox, having been married to 
 an Italian lady, sought to obtain a divorce from her, and, under the impression that 
 a valid divorce had been granted to him, married another woman. The most that 
 can be claimed respecting his action is, that under a mistaken view of the law he 
 assumed that when he contracted a second marriage the first marriage relation had 
 been dissolved. There was no pretense that he undertook to live witti two wives at 
 the same time, or to maintain two establishments, or to hold himself out as the hus- 
 band of two women. Your committee therefore were of opinion that no question of 
 ineligibility was raised, and that this case bore not the slightest resemblance to the 
 Eoberts case, which was presented as a precedent. The Delegate from Hawaii was 
 informed of this conclusion of the committee before he was called upon to answer 
 formally to the charges, and for that reason his formal answer does not refer to the 
 charge of bigamy. 
 
 In answer to the other propositions, he filed with the committee the following 
 statement: 
 
 "in the matter op petition affecting delegate from HAWAII. 
 
 "In answer to the alleged charges and facts presented to the Elections Committee 
 No. 1 of the House of Representatives the undersigned, Robert W. Wilcox, Delegate 
 from the Territory of Hawaii, submits: 
 
 "That he is a native Hawaiian; that he shared with the people, native then, loyalty 
 to the former Queen Liliuokalani during her reign, and was not in sympathy with 
 the reigning power immediately succeeding her reign. 
 
 "That after the annexation of Hawaii to the United States he labored earnestly to 
 secure from the United States Congress an organic law for the people of Hawaii, and 
 came to Washington and remained for five months to promote the same. He freely 
 confesses that he did not theretofore understand fully the institutions or the feelings 
 of the United States, but all' doubts were dispelled when the Congress gave to the 
 people of Hawaii a splendid system of organic laws, providing as fully as could be 
 for their rights — personal, property, and political — and making them citizens of the 
 United States. 
 
 ' "That in common with the people then, he at all times, with genuine patriotism, 
 supported the United States and its institutions, and is now and has been a loyal 
 supporter of the Constitution, laws, and Government of the United States. • That on 
 the passage of the said organic law for Hawaii, he, and the citizens of the United 
 States and Hawaii generally, registered as a voter, and he announced his candidacy 
 as a Delegate to Congress from Hawaii, as provided by law. That during his canvass 
 he loyally supported the United States and its Constitution and laws, and no word 
 
602 DIGEST OP CONTESTED ELECTION CASES. 
 
 of his during said time uttered could be otherwise construed. He did during that 
 time hold out the hope that Hawaii, now a Territory of the United States, would 
 some time become a State of the Union. . He admits that on January 31, 1899, and 
 on March 8, 1899, he wrote two several letters marked Exhibits B and in the peti- 
 tion. That said letters were of a personal and confidential nature, and sent to whom 
 he supposed was a friend, and wh'o he thought would not betray his confidence. 
 
 " This view was justified by the fact that the letters, exhibits, were in aid of him. 
 He further says that said letters were written by him under an entire misconception 
 of the real attitude of the Government of the United States toward the people of the 
 Hawaiian Islands. And his false impressions were entirely dissipated by the action 
 of Congress in enacting the organic law for the Territory, which was passed April 30, 
 1900, and took effect June 14, 1900. 
 
 ' ' That under the laws of the United States, at a fair and free election, he was elected 
 as a Delegate from Hawaii to the United States Fifty-sixth Congress, was sworn in as 
 such, and is now performing the duties thereof. That in all respects he is duly qual- 
 ified as such Delegate, and no reason exists or has existed disqualifying him as such 
 Delegate from Hawaii. 
 
 "EobeetW. Wilcox, 
 
 ' ' Delegate from Hawa ii. ' ' 
 
 THE CHARGE OP TREASON. 
 
 On the 7th of July, 1898, Congress adopted a joint resolution to provide for annex- 
 ing the Hawaiian Islands to the United States. The organic act providing for a sys- 
 tem of government for these islands was not passed until April 30, 1900. Early in 
 1899, Wilcox wrote several letters to an Italian friend of his in Washington, and one 
 letter of introduction of this friend to certain representatives of the Philippines then 
 in Washington, in which he gave expression to unpatriotic and treasonable proposi- 
 tions. In one of these letters he told the Philippine representatives that he was 
 ready to give his services to their country and ready to obey orders to go to their 
 country and fight for the independence of their people. 
 
 Your committee has carefully considered the duty of the House in this relation, 
 and after full discussion and consideration are clearly of opinion that under the cir- 
 cumstances of the case no action ought to be taken by the House. 
 
 Wilcox was one of the adherents of Queen Liliuokalani, and therefore of the 
 "royalist party." Against his will, and in spite of his objection and the objection 
 of his associates, the monarchy was overthrown and a republic created. No doubt this 
 revolution was in the interest of civilization and good government, but the attitude 
 of those who believed in the monarchy and whose Government was overthrown was 
 not to be scrutinized with the same care as if those whose conduct was questioned 
 could justly be compelled to show instant allegiance to the new governing power. 
 
 When in 1898 the Republic of Hawaii proposed to the United States terms of 
 annexation, which were accepted by the joint resolution of July 7, 1898, it is not 
 strange that those who were opposed to the Republic and hoped for the restoration 
 of the monarch)' should be unwilling to yield allegiance to the power which, as it 
 seemed to them, had forcibly assumed jurisdiction of their couhtry. At the time 
 when Wilcox wrote his treasonable letters the only government which the Hawaiian 
 people had was that which the Republic of Hawaii had set up, supplemented by the 
 resolution of 1898, which merely transferred nominal sovereignty to the United 
 States. When in 1900 Congress provided a system oi government for the Hawaiian 
 people at once just and generous, by the orderly operation of which the Hawaiian 
 people, on a full and representative vote, elected Wilcox as their Delegate in Congress, 
 it was natural that a revolution in public sentiment should occur. 
 
 A Territorial Delegate has no legislative power; he can in no respect infiuence the 
 legislation applicable to the States; he has no power to be feared, and is indeed 
 merely the agent and spokesman of his people. Such being the case, in view of the 
 changed — the radically changed — political relations between the Hawaiian people 
 and the United States, resulting from the act of April, 1900, we do not think that 
 the conduct of a native of the Hawaiian Islands a year or more prior to the adoption 
 of that organic act, however improper it may have been, abstractly viewed, ought 
 to deprive the Hawaiian people of the representative M-hom they have solemnly sent. 
 
 \ 
 
 THE VALIDITY OP THE ELECTION. 
 
 The second objection to the Delegate from Hawaii is that there was no valid elec- 
 tion by which he can claim a seat as a Delegate in this House. Technically this 
 objection has some force. The organic act passed April 13, 1900, has this provision: 
 
 "Sec. 85. That a Delegate to the House of Representatives of the United States, to 
 
FIFTY-SIXTH CONGRESS. 603 
 
 serve during each Congress, shall be elected by the voters qualified to vote for mem- 
 bers of the house of representatives of the legislature; such Delegate shall possess the 
 qualifications necessary for membership of the senate of the legislature of Hawaii. 
 The times, places, and manner of holding elections shall be as fixed by law. The 
 person having the greatest number of votes shall be declared by the governor duly 
 elected, and a certificate shall be given accordingly. Every such Delegate shall have 
 a seat in the House of Representatives, with the right of debate, but not of voting." 
 
 It is not clear that the expression "shall be as fixed by law" does not mean as 
 fixed by the law then in force in the Hawaiian Islands. This organic act reenacts 
 all of the election laws of the Republic of Hawaii in so far as they are applicable to 
 the conditions then existing or made to exist by the organic act itself. Under the 
 Hawaiian system of government the only officials elected were the representatives 
 and senators to the legislature of the Republic. For the election of these senators 
 and representative.! full and complete machinery was devised and had been in oper- 
 ation up to the time of the joint resolution annexing the islands. Of course, they 
 made no provision for the election of a Delegate to Congress, nor was any additional 
 legislation had except that which is contained in section 85 of the act of Congress 
 above referred to. With no machinery of election except that provided by the laws 
 of the Republic of Hawaii and section 85 above quoted, it is claimed that no valid 
 election could be held. In this view we do not concur. 
 
 Previous to the election of November, 1900, the proper officers issued a proclamation 
 calling for the election of a Delegate to the United States Congress, as well as for the 
 election of representatives and senators to the Territorial legislature. Separate ballot 
 boxes were provided, tickets were printed, and the whole machinery set in perfect 
 motion for the election of the Delegate to Congress. The same precautions were 
 observed and the same kind of machinery of election provided for the election of 
 Delegate as for representative and senator in the Territorial legislature. Practically 
 all of the people voted, and quite as many voted for Delegate to Congress as for 
 representatives and senators in the Territorial legislature. There was a full and free 
 expression of the popular will, under the theory that the Territory was entitled to 
 send a Delegate to Congress, and as a result of that full and free popular expression, 
 Wilcox was chosen by a considerable plurality. He comes here, therefore, as the 
 agent of his people, chosen apparently under the forms of and with all the solemnity 
 which surrounds the most carefully conducted election, and we think he ought to be 
 permitted to retain his seat as their representative in the capacity of a Delegate. 
 
 We are not uninfluenced, in arriving at this conclusion, by a consideration of the 
 fact that the people who send him here are to a large extent unfamiliar with the 
 methods, the policy, and the inspiration of a free government. They have under- 
 taken to give expression to their desire. Since the organic act, they have, so far as 
 we are advised, shown themselves to be loyal citizens of the American Republic, 
 and we think that when they have thus spoken, their Representative ought to be 
 welcomed as such. If he is not a suitable person to give expression to the wishes 
 and feelings of the people who inhabit those islands, and who are, for all time, to be 
 citizens of the American Republic, they will doubtless discover that fact, and in due 
 time send another. 
 
 This report was presented March 1, 1901. 
 
 [Report 3001, second session Fifty-sixth Congress.] 
 
 (5) Davison vs. Gilbert. 
 
 Constitutionality of State redistrictvng law. Report for contestee. 
 No action. 
 
 Report by Mr. Tayler. 
 The report is as follows: 
 
 The Committee on Elections No. 1, to whom was referred the contested election 
 case of George M. Davison rs. George G. Gilbert, from the Eighth district of Kentucky, 
 make the following report: 
 
 The contestee was elected, as shown by the official returns, by a plurality of 841. 
 
 The claim of the contestant chiefly rests upon the fact that on March 11, 1898, an 
 act was passed by the legislature changing the boundaries of the Eighth and Eleventh 
 Congressional districts of Kentucky, whereby the county of Jackson was taken from 
 the Eighth district and added to the Eleventh. Jackson County having a large 
 Republican majority, the effect of its transfer to the Eleventh was to change the 
 
604 DIGEST OF CONTESTED ELECTION CASES. 
 
 Eighth from a district which had immediately previously been Republican into a 
 Democratic district. 
 As respects this act, the contestant claimed three things: 
 First. That it was contrary to the constitution of the State of Kentucky; 
 Second. That it was never iiroperly passed by the legislature in the manner 
 required by the Kentucky constitution; 
 
 Third. That it was contrary to the act of Congress apportioning Representatives 
 among the States. . 
 
 As to the first two propositions your committee has no difficulty m arriving at the 
 conclusion that the act of March 11, 1898, was not in contravention of the Kentucky 
 constitution, and that it was, as far as we have authority to inquire, properly passed 
 by the legislature. 
 
 The third proposition, namely, that it contravenes the act of Congress, is more 
 serious, and requires more careful consideration. 
 The Federal Constitution, Article I, section 4, paragraph 1, is as follows: 
 ' ' The Times, Places and Manner of holding Elections for Senators and Representa- 
 tives, shall be prescribed in each State by the Legislature thereof; but the Congress 
 may at any time by Law make or alter such regulations, except as to the Places of 
 Choosing Senators." 
 
 This provision of the Constitution has been very much discussed ; first, as to the 
 scope of the power granted to Congress respecting the manner of holding Congres- 
 sional elections; and, second, as to the expediency of the exercise of such power 
 where it was sought to be exercised, if possessed, for the purpose of controlling the 
 division of a State into Congressional districts. 
 
 It is believed that this is the first time in the history of the Government when 
 Congress has been calledi upon to undo the work of a State which had divided itself 
 into the proper number of Congressional districts. 
 
 When the Constitution was under consideration by the various States several of 
 them opposed the unqualified acceptance of the provision above quoted, on the 
 express ground that the clause was liable to misconstruction and that under its 
 terms Congress might at some time seek to divide the States into districts, and in 
 several States the ratifying body accepted the Constitution on condition that effort 
 should be made to change the phraseology so as to put this matter beyond dispute. 
 For nearly forty years the States proceeded to elect Representatives, some at large 
 and some by districts. In 1840 the policy of electing by districts was generally 
 approved and adopted, but several of the States continued to elect their Representa- 
 tives by the vote of the entire State. The first legislation oh the subject going 
 beyond the mere apportionment of the States was enacted in 1842. In the appor- 
 tionment act of that year an amendment was added in the House providing for the 
 division of the several States into districts, composed of contiguous territory, equal 
 in number to the number of Representatives to which the State was entitled, and 
 each district to elect one Representative, and no more. 
 The amendment provoked considerable discussion, but was finally adopted. 
 The apportionment act based upon the census of 1850 made no provision for the 
 division of States into districts, nor did the act of 1862. The act of February 2, 1872, 
 provided that Representatives should be elected by districts composed of contiguous 
 territory, and added the provision "containing, as nearly as practicable, an equal 
 number of inhabitants." The same provision appears in the apportionment acts of 
 1882 and 1891. 
 
 So far as legislative declaration is concerned, it is apparent that Congress has 
 expressed an opinion in favor of its power to require that the States shall be divided 
 into districts composed of contiguous territory and of as nearly equal population as 
 practicable. Whether it has the constitutional right to enact such legislation is a 
 very serious question, and the uniform current of opinion is that if it has such power 
 under the Constitution, that power ought never to be exercised to the extent of 
 declaring a right to divide the State into Congressional districts or to supervise or 
 change any districting which the State may provide. 
 
 J?he best opinion seems to be that the Constitution does not mean that under all 
 circumstances Congress shall have power to divide the States into districts, but only 
 that the constitutional provision was inserted for the purpose of giving Congress the 
 power to provide the means whereby a State should be represented in Congress when 
 the State itself, for some reason, has failed or refused to make such provision itself. 
 Justice Story, in his commentaries on the Constitution, says: 
 "In answer to all such reasoning it was urged that there was not a single article in 
 the whole system more completely defensible. Its propriety rested upon this, plain 
 proposition, that every government ought to contain within itself the means of its 
 own preservation. A discretionary power over elections must be vested somewhere. 
 
FIFTY-SIXTH CONGBESS. 605 
 
 There seem to be but three ways in which it could be reasonably organized. Itmight 
 be lodged either wholly in the National Legislature, or wholly in the State legislatures, 
 or primarily in the latter and ultimately in the former. The last was the mode adopted 
 by the convention. The regulation of elections is submitted in the first instance to 
 the local government, which in ordinary cases, and when no improper views prevail, 
 rnay both conveniently and satisfactorily be by them exercised; but in extraordinary 
 circumstances the power is reserved to the National Government, so that it may not 
 be abused, and thus hazard the safety and permanency of the Union." 
 
 He adds: "It is not too much, therefore, to presume that it will not be resorted to 
 by Congress until there has been some extraordinary abuse or danger in leaving it to 
 the discretion of the States respectively." 
 
 Hamilton, in the Federalist, makes this, among other comments, on the subject: 
 
 "Nothing can be more evident than that an exclusive power of regulating elections 
 for the National Goveriunent in the hands of the State legislatures would leave the 
 existence of the Union entirely at their mercy. They could at any moment annihi- 
 late it by neglecting to provide for the choice of persons to administer its affairs." 
 
 Madison expressed the same views in the Virginia convention with great force, and 
 expressed the opinion that if the elections were exclusively under the control of the 
 State government the General Government might easily be dissolved. 
 
 Chancellor Kent, in his Commentaries, says: 
 
 "The legislature of each State prescribes the times, places, and manner of holding 
 elections, subject, however, to the interference and control of Congress, which has per- 
 mitted them for the sake of their own preservation, and which it is to be presumed 
 they will never be disposed to exercise except when any State shall neglect or refuse 
 to make adequate provision for the purpose." 
 
 In the Twenty-second Congress, first session, an elaborate report was presented 
 by Mr. Webster on the subject of apportionment. In the course of this exhaustive 
 statement he discusses the -very question which is here involved. The following 
 extract is fairly representative of the rest of the report on that phase of the question: 
 
 "Whether the subdivision of the representative power within any State, if there 
 be a subdivision, be equal or unequal, or fairly or unfairly made, Congress can not 
 know and has no authority to inquire. It is enough that the State presents her own. 
 representation on the floor of Congress in the mode she chooses to present it. If a 
 State were to give to one portion of her territory a representative for every 25,000 
 persons, and to the rest a representative only for every 50,000, it would be an act of 
 unjust legislation, doubtless, but it would be wholly beyond redress by any power 
 in Congress, because the Constitution has left all this to the State itself." 
 
 These are the guarded words of a great commentator on the Constitution, unin- 
 fluenced by any bias or special motive, except to justly interpret its provisions. 
 
 A remarkable and convincing speech is that made in the Twenty-seventh Congress 
 by Nathan Clifford, then a Eepresentative from Maine and afterwards a justice of 
 the Supreme Court of the United States. Mr. Clifford argued with great cogency 
 against the theory that Congress had any such power as the act of 1842 undertook 
 to express, and in our opinion those arguments have never been satisfactorily 
 answered. 
 
 And, indeed, the force which the proposition contended for by the contestant in 
 this case possesses is derived chiefly from the fact that, without objection for the last 
 three decades, Congress has legislated as though no question was made as to its 
 power over the division of States into districts. If the act of 1842, in which we find 
 the first Congressional expression of power, had sought by its terms to define the 
 geographical boundaries of every Congressional district in the several States it could 
 not by any possibility have been adopted. So far as we have been able to learn, no 
 friend of the amendment to that act contended that Congress had any such power. 
 The construction of Madison, Story, and Kent seems most reasonable and natural. 
 
 Your committee are therefore of opinion that a proper construction of the Consti- 
 tution doea not warrant the conclusion that by that instrument Congress is clothed 
 with power to determine the boundaries of Congressional districts, or to revise the 
 acts of a State legislature in fixing such boundaries; and your committee is further 
 of opinion that even if such power is to be implied from the language of the Con- 
 stitution, it would be in the last degree unwise and intolerable that it should exer- 
 cise it. To do so would be to put into the hands of Congress the ability to disfran- 
 chise, in effect, a large body of the electors. It would give Congress the power to 
 apply to all the States, in favor of one party, a general system of gerrymandering. 
 It is true that the same method is to a large degree resorted to by the several States, 
 but the division of political power is so general and diverse that nothwithstanding 
 the inherent vice of the system of gerrymandering, some kind of equality of distri- 
 bution results. 
 
606 DIGEST OF CONTESTED ELECTION CASES. 
 
 Your committee therefore recommends the adoption of the following resolutions: 
 Resolved, That George M. Davison was not elected a Representative to the Fifty- 
 sixth Congress from the Eighth district of Kentucky, and is not entitled to a seat 
 therein. 
 
 Resolved, That George G. Gilbert was elected a Representative to the Fiftj^-sixth 
 Congress from the Eighth district of Kentucky, and is entitled to retain his seat 
 therein. 
 
 This report was presented March 1, 1901, just before the close of the 
 last session. 
 
 [Report 3000, second session Fifth-sixth Congress.] 
 
 (6) Walker vs. Rhea. 
 
 Fraud. Report for contestee. No action. 
 
 Report by Mr. Tayler. 
 
 Aside from formal parts and tables of returns and population, the 
 body of the brief report is as follows: 
 
 The printed testimony in the case comprised about 3,000 pages, and brought in 
 vast detail before the committee the evidence relating to the charges of the contestant 
 and the counter charges of contestee. 
 
 The case was most elaborately and ably argued for about two weeks before the 
 committee, and was then considered for many weeks with the greatest care. 
 
 The conclusion arrived at as a consequence of the committee's investigation is that 
 while the evidence shows that there were frauds and irregularities practiced, chiefly 
 in the interest of the contestee, they fall very far short of bemg sufficient to justify a 
 change in the result of the election. 
 
 This report was presented January 30, 1901. 
 [Report 2566, second session Fifty-sixth Congress.] 
 
 (7) White vs. Boreing. 
 
 Name not regularly on party ticket. Report for contestee, who 
 retained the seat. 
 
 Report by Mr. Olmsted. 
 
 Contestant and contestee were both Republicans. Contestant 
 received 11, 2M votes and contestee 15,706, a plurality for contestee of 
 4,462. The Democratic candidate received 3,319 votes, and the Popu- 
 list candidate 122. Contestee's name was printed on the ballot under 
 the heading "Republican ticket" and the regular Republican emblem, 
 a log cabin. Contestant was nominated by petition, and his name was 
 prmted under the heading "'Free Republican ticket," with a picture of 
 himself as emblem. Contestant was not a candidate for the Repub- 
 lican nomination and did not claim the right to have his name printed 
 in the party column, but he charged that contestee was irregularly 
 nominated and should not have had his name in the party column. He 
 claimed that either the party vote for contestee should be thrown out 
 and the seat given to himself who had a majoritj'^ of the remaining 
 votes, or the election should be declared void. 
 
 Under the laws of Kentucky, party organizations and party com- 
 mittees were recognized. Parties were permitted to nominate either 
 by primary election or by convention. If they nominated by primary 
 election the committee or governing authority of the party had power 
 
FIFTY-SIXTH CONGEESS. 607 
 
 to provide for the manner in which the expenses of holding the election 
 should be paid. Any candidate not notifying the party committee at 
 least fifteen days before the primarj^ election, "and any person who 
 has not given such notice to the committee or governing authority, or 
 who has not complied with the conditions prescribed bj' the committee 
 or governing authority for the government of candidates, shall not 
 have his name printed on the baflots used in such primary election." 
 
 It was a custom of the party in cases where only one candidate had 
 announced himself, as above provided, to nominate that candidate by 
 a resolution of the committee, after due notice, without action by 
 either primary or convention. 
 
 The Kepublican committee had provided that the expenses of a pri- 
 mary election, in this case, should be provided by assessments on the 
 candidates, to be paid at least fifteen days prior to the election. Con- 
 testee was the only candidate complying with this condition and he 
 was nominated by the committee. Contestant claimed that both meet- 
 ings of the committee were irregular, as votes were cast at them by 
 proxy and there was not a quprum present without counting the 
 proxies. The committee said: 
 
 We are referred to Eule No. 29 of the Kepublican organization of Kentucky, which 
 is said to read as follows: 
 
 "No delegate elected to a State or district Republican convention shall be per- 
 mitted to cast a vote by proxy." 
 
 This was not, however, a State or district Republican convention, and the parties 
 present did not attend as delegates elected to said convention, but as members of the 
 district committee of the Eleventh Congressional district of Kentucky, a standing 
 committee. As this district committee or governing authority is recognized by stat- 
 ute, and is authorized in the case of a tie vote or contest at a primary election to hear 
 and determine such contest and decide who shall be entitled to the nomination, the 
 argument is made on behalf of contestant that its members are public officers and 
 can not delegate their powers. But even as to public officers the distinction is always 
 drawn between duties of a judicial nature and those which are purely ministerial. 
 The evidence shows that not only in the State central committee, but also in the 
 district committees of the Republican party the use of proxies is quite common. 
 
 Mr. White was not a candidate for the Republican nomination; his 
 name was on the ballot where he had wished it to be. No effort had 
 been made by him or by anybody to take legal steps to have contestee's 
 name kept off the ballot as Republican candidate. The case was there- 
 fore much less strong than the case of Fairchild vs. Ward, in the Fifty- 
 fifth Congress, ^hich had been decided by that Congress not to be 
 strong enough. There was no evidence how many voters voted for 
 contestee by stamping under the party emblem for a " straight ticket." 
 So far as the evidence showed, all of them may have voted for him by 
 stamping after his name or by writing his name on the ticket. He 
 received the majority of the votes, and the committee held that he was 
 entitled to the seat. 
 
 Seven members of the committee signed the report above outlined. 
 Mr. Snodgrass agreed to the conclusion, on the ground that the con- 
 testee was regularly nominated. Mr. Green also agreed to the con- 
 clusions', but presented a brief explanation stating the arguments in a 
 slightly different way. 
 
 The report was presented Ma,rch 29, 1900. The House adopted the 
 resolutions presented without division. 
 
 [Report 876, first session Fifty -sixth Congress.] 
 
608 digest of contested election cases. 
 
 (8) Pearson vs. Crawford. 
 
 Illegal registration; bribery/ intimidation,. Majority report for 
 contestant; 'minority report for contestee. Contestant seated. 
 
 Majority report by Mr. Roberts; minority report by Mr.Miers. 
 
 On the face of the returns as canvassed, contestee's majority was 
 238. Correcting some obvious errors, his majority was 218. Contest- 
 ant made charges of bribery, intimidation, and irregularities, and of 
 the circulation of spurious letters attributed to himself. He also 
 attacked the vote of certain precincts, and certain individual votes, for 
 fraud. The committee found "that the campaign was waged on the 
 race issue, notwithstanding the fact that no negroes hold office in the 
 Ninth Congressional district, and that they do not constitute one-tenth 
 part of the population of said district." Contestee's entire gain over 
 the election of 1896 was in the two counties containing most of the 
 negro voters. 
 
 It is significant that the falling off in the Republican vote occurs in those precincts 
 and counties in which intimidation is charged. Exhibit K, for instance (Record, p. 
 129), shows that the vote cast at the second precinct at Asheville was nearly 40 per 
 cent less than the registration at that precinct; and the testimony of Henry Benson 
 (Record, p. 147) shows that armed men, nonresidents of this precinct and partisans 
 of contestee, were stationed at the polling place on election day. The same witness 
 also testifies that the Republican voters of this precinct were prevented by threats 
 from holding political meetings, and were even afraid to appear on the streets at 
 night just prior to the election. The testimony of Senator Pritchard shows conclu- 
 sively that intimidation on the part of the Democrats was predetermined, widespread, 
 and systematic. * * * 
 
 It is impossible for the committee to define the scope or to estimate the effect, in 
 precise words or figures of arithmetic, of the influence of intimidation, of the circu- 
 lation of these letters, of the bribing of Republicans .to stay away from the polls, and 
 of mob violence on tlie night preceding and on the day of election. We have no 
 hesitation in reaching the conclusion that these unlawful methods and proceedings, 
 operating concurrently, are sufficient to overturn contestee's plurality of 228 votes; 
 and if nothing else appeared in this case these reprehensible and dishonest methods 
 , resorted to by partisans of the contestee would justify the House in declaring a 
 vacancy. 
 
 According to the committee, contestee claimed in his brief that one 
 precinct should be rejected because the registration was not conducted 
 as prescribed by law. If this claim were conceded it would settle the 
 whole case, as there were enough other precincts of the same sort, in 
 which the returned majorities were for contestee, to overcome, if 
 rejected, within 3 votes of the entire returned majority of contestee, 
 and contestee had practically admitted that i votes should be deducted 
 for bribery. The committee quoted a recent legislative precedent in < 
 South Carolina for the doctrine that the law of the State was manda- 
 tovj as to time and place of registration. They said: 
 
 The language of the North Carolina statute on this point is as follows (sec. 8) : 
 
 ' ' Promded, That no registration shall be had except at the times and places herein- 
 after provided." 
 
 And in section 9: 
 
 "And such registrars shall also, between the hours of 9 o'clock a. m. and 4 o'clock 
 p. m., for four consecutive Saturdays, and between the hours of 9 a. m. and 12 o'clock 
 m., on the second Saturday preceding the election, at the voting place of said pre- 
 cinct, keep open said book for the registration of any electors residing in such 
 precinct, etc." 
 
 Here we have the aflJrmative requirement that the registration shall be had at the 
 polling place, coupled with the explicit proviso that it shall be had nowhere else; 
 and it would be impossible to word a law in language more clearly mandatory. Upon 
 a strict construction of the statute, and upon a strict compliance with contestee'g 
 claim as to the mandatory provisions of this statute, the case is easily settled. 
 
FIFTY-SIXTH OONQEE88. 609 
 
 in addition to this irregularity in registration there was evidence 
 that a Democrat had stuffed the box at one precinct, and that the pro- 
 vision of law requiring the judges, before the opening of the polls, to 
 examine the ballot boxes and see that there was nothing in them was 
 violated at the other, as was shown by the discovery in it of several 
 hundred old. ballots from a former election when the box was opened 
 at the close of the polls. The committee said: 
 
 The provision of law requiring ballots to be deposited in empty boxes is in its 
 nature just as mandatory as a provision requiring that the ballots shall be on white 
 paper and without device. Under such a law a ticket printed on red paper, or con- 
 taining a device, is void; and, by parity of reasoning, ballots deposited in a box one- 
 third full of tickets at the opening of the polls, resulting in an incorrect count, as in 
 this case, must vitiate the returns. It is axiomatic that laws designed to secure the 
 accuracy of the count are mandatory. So the returns from this precinct must be 
 rejected, whether we decide that the law in respect of time and place of registration 
 be mandatory or. directory. 
 
 Evidence as to six other precincts was also considered by the commit- 
 tee and the votes of five of them rejected, and the return of the sixth 
 rejected and the votes counted on evidence aliunde. The minority 
 counted the five and held the evidence aliunde insufficient as to the 
 sixth. 
 
 In one precinct the committee found that one of the officers of elec- 
 tion had stuffed the box. The minority said that the evidence was 
 inconclusive and contradicted, and that at most it applied only to the 
 county, not to the Congressional, box. The majority said on this point: 
 
 The effort of the contestee's counsel to show that the box which Martin was caught 
 in the act of stuffing was the county box is of no avail, because it is clear that he 
 stuffed one of the boxes and that he handled part of the tickets from the Congres- 
 sional box, so th.at his touch tainted the entire returns, and they must be rejected. 
 
 The majority rejected and the minority counted this return. 
 
 In another precinct the committee said that the evidence shows nine 
 distinct varieties of fraud and irregularity. The return was false, 
 the number of ballots exceeding the number of voters. The poll list 
 introduced in evidence by contestee was forged. The Democratic 
 judge of election, who was chairman of the board, confessed that he 
 was drunk on quinine. 
 
 The minority could not find the nine sorts of fraud; the poll list was 
 not introduced by contestee, and there was no proof that it was forged; 
 the only thing wrong with the return was the omission of 11 votes 
 cast for one Boggs. 
 
 Two returns were rejected by the committee for bribery, evidence 
 being quoted. The minority said that there were only twelve witnesses 
 in the one case who proved that two voters were bribed , and that in the 
 other case one witness testified that himself and two other voters were 
 bribed. 
 
 In Asheville a witness testified that he had been promised by the 
 Democratic county chairman of Buncombe County (who was one of 
 contestee's attorneys in the case) f70 if he would deliver 25 votes for 
 contestee. This witness was arrested for perjury, and contestant 
 claimed that his other witnesses were thereby intimidated from testi- 
 fying. Three of them testified before the incarceration of the first 
 witness, but the nex'- morning four more who had been subpoenaed 
 
 H. Doc. 610 39 
 
610 DIGEST OF CONTESTED ELECTION OASES. 
 
 failed to appear, and no more testimony was taken. The committee 
 said: 
 
 Murphy's conduct in suppressing testimony at this place is absolutely indefensible, 
 and is ap act of contempt toward the House of Representatives and the notary acting 
 under the authority of a statute of the United States which merits the emphatic 
 condemnation of this House. This conduct of Murphy, the attorney of contestee, 
 amply justifies the committee in rejecting the returns from the entire township. 
 
 The committee referred to the case of Featherston vs. Gate, in the 
 Fifty -first Congress, as a precedent for this action. 
 
 The minority held that the case of Featherston vs. Cate was not a 
 precedent. In that case a witness testified that he issued and saw 
 •voted more ballots for contestant than were voted for him. He was 
 arrested for perjury in so testifying, and the threat was openly made 
 by contestee's counsel that he would arrest all other witnesses he 
 thought were swearing falsely. The committee had merely held that 
 strict and technical proof of the vote would not be required where tes- 
 timony had been suppressed. In this case the witness had charged 
 contestant's attorney with an indictable offense and was guilty of a 
 felony if he charged falsely. " No just inference could be drawn that 
 the purpose was to intimidate witnesses. Witnesses who testify in 
 contested election cases do so under regulations of law, as in other 
 cases, and men who rely upon the testimony of such witnesses have no 
 right to have them protected in the violation oi law." There was no 
 evidence that witnesses were intimidated from testifying. Those who 
 failed to appear on February 24 were given in the notices to take tes- 
 timony as called for February 23, and there were no subpoenas in the 
 record to show that they had been required to appear on the next day. 
 Even " if it be admitted that the evidence of Harrison is true, it only 
 proves the fact that he was offered money, and that he received none, 
 and therefore could in no way affect the results of the election." 
 
 Moreover, the arrested witness and the only other witnesses shown 
 to have been called were all called to testify in regard to precinct No. 
 2, Asheville Township. There was no pretext whatever for rejecting 
 the other eight precincts of the township, and the minoritj'^ character- 
 ized the proposal to do so as "the most sweeping and monstrous 
 proposition ever submitted to the House of Representatives." 
 
 Contestee claimed that the vote of Herrells precinct should be rejected 
 on the ground that the Democratic judge having refused to remain for 
 the count on the night of the election, the count was postponed until 
 the next morning, the box in the meantime having been removed 
 from the polling place and kept by the two Republican judges and 
 the Republican clerk. The committee said: 
 
 While it would be a dangerous precedent to declare that the election returns 
 should be rejected in the interest of contestee on account of the wrongful act of his 
 own partisan, if the returns be rejected from this precinct for this informality, the 
 contestant, of course, would be permitted to prove his vote aliunde; and this he has 
 done, as shown by the testimony of J. C. Bowman, clerk of the superior court of 
 Mitchell Coyntj, who, in the quotation from his testimony cited below, shows that 
 a recount of this box was had by the notary in the presence of contestee's counsel 
 and without objection; that the box was locked and sealed in accordance with the 
 provisions of law, and that it had been kept in this condition in the custody of the said 
 clerk continuously since the day after the election. The recount shows the identical 
 number of votes for Pearson, to wit, 196, which were returned by the election oflacers 
 from Herrells precinct. 
 
 The minority held that the statute requiring the ballots to be counted 
 at the close of the polls was mandatory and that the vote must be 
 
FIFTY-SIXTH OOlfGBESS. 611 
 
 rejected. Votes could not be proved aliunde by recounting the dis- 
 credited ballots. 
 
 The minority insist that the ballots could not be recounted as evidence aliunde of 
 the vote actually cast at that precinct, for it is the ballots themselves which have 
 been discredited. We submit that the only competent evidence to prove the vote 
 cast would be testimony of sworn witnesses in such case. 
 
 On the general issues of the case the minority held that there was 
 no evidence of the spurious character of "the letters circulated in the 
 name of contestant, or that they had lost him votes; that there was no 
 evidence of intimidation or of any violence connected with or affect- 
 ing the election, and that the precincts rejected for irregularity in 
 the registration or for the failure to empty the box of the old ballqts 
 of the preceding election should be counted, (^ontestee had not asked 
 that these precincts be thrown out, but had .merely set up a counter- 
 claim that if those asked by contestant be rejected, a similar one should 
 be thrown out in his interest. There was no unfairness intended nor 
 harm done by any of these irregularities, and the statute was plainlj' 
 directory. 
 
 This case was called up on May 9, 1900, and Mr. Roberts, the author 
 of the majority report, moved to strike out from that report the words 
 "Reject Asheville 163," on page 16, and to deduct 163 from the total 
 majority of 318 found for contestant, leaving him 155. Mr. Roberts 
 explained that he made this motion for the purpose of limiting discus- 
 sion and to show that the rejection of Asheville was not necessary to 
 sustain the contentions of the majority. The point of order was made 
 and sustained that the report of a committee can not be amended by 
 the House. After further debate, the substitute resolutions proposed 
 by the minority were lost by a vote of 127 to 128. (This is the cor- 
 rected vote; it was first announced as a tie.) The resolutions proposed 
 by the committee were passed by a vote of 129 to 127, and on May 10, 
 1900, Mr. Pearson was sworn in. 
 
 [Report 199, parts 1 and 2, first session Fiftj'-sixth Congress.] 
 
 (9) Wise vs. Young. 
 
 Frav/l; false counting. Majority report for contestant; minority 
 'report for contestee. Contestant seated. 
 
 Majority report by Mr. Weeks; minority report by Mr. Burke. 
 
 The issues in this case were generally similar to those in the case 
 between the same parties in the preceding Congress, except that in 
 place of charges of preventing votes from being cast by obstructive 
 tactics, there were charges of stuffing the poll lists with the names of 
 imaginary or illegal voters. Contestee only took a small amount of 
 testimony, directed to the two points of the regularity of contestant's 
 nomination and the good character of the election officers. So the 
 case came before the committee practically on the evidence of 
 contestant. 
 
 According to the returns as canvassed, contestee had a plurality of 
 5,979 and a majority of 2,534 votes. According to the report of the 
 committee, the true result should be a plurality of 2,434 for contestant; 
 according to the minority, contestee should have a plurality of 3,735, 
 of 2,934, of 1,678, or of 897, according as the vote of Norfolk city 
 was or was not counted, and according as the certificates of voters 
 were accepted or rejected as evidence. 
 
612 DIGEST OF CONTESTED ELECTION CASES. 
 
 The committee rejected the entire returns of Norfolk, but counted 
 such votes as were proved aliunde. They called attention to the fact 
 that in the uncontested parts of the district there had been a large 
 falling off in the vote since the Presidential election of 1896, but that 
 in Norfolk there had been a very slight decrease, and added: 
 
 Contestant's return being laid aside, the disproportion between the return of votes 
 cast in Norfolk and those returned from the counties, and the extraordinary vote 
 returned for contestee from Norfolk, were sufficient to excite inquiry. After care- 
 fully looking into the evidence produced concerning these returns, we have no hesi- 
 tation in declaring that no such vote was cast as was returned from Norfolk and that 
 the contestee received no such vote there as was returned for him. 
 
 The evidence overwhelmingly establishes the fact that the judges of election in 
 Norfolk were in collusion in the interest of the contestee, and that the contestant's 
 theory of "how the election was managed by corrupt officers, personally friendly fo 
 the contestee, is right. 
 
 In the contest in the Fifty-fifth Congress between the same parties, the House of 
 Representatives decided that if election officers obstructed lawful voters the votes of 
 such will be counted. It was also shown by the manner in which that contest was 
 prepared and decided that where the aggregate of votes returned is approximately 
 near the number of votes cast, the party defrauded, either by the throwing out of 
 votes cast for him as defective or by the transfer of vot«s cast for him to the return 
 for his opponent, may protect himself by proving the vote he actually received. In 
 view of this, contestee, or his managers m the city of Norfolk, evidently resolved 
 upon another plan in the last election. We call it a plan because of its uniform 
 practice at every precinct of the city. The similarity of method with which it was 
 put into effect in every precinct in Norfolk shows planning, forethought, and delib- 
 eration. It was in brief thus: To accept all votes offered, to make return of few 
 defective ballots, and to add to the list of actual voters on the poll books of the sev- 
 eral precincts enough names of fictitious voters to enable the judges to return for 
 the contestee a false vote so large that the majority returned for him could not be 
 overcome. 
 
 If this scheme had been worked adroitly it might have rendered the fraud prac- 
 ticed difficult of detection. The party thus defrauded does not complete his task by 
 producing proof of the vote actually cast for him; the burden is still upon him to 
 show that the vote returned for his adversary is false. Where the fictitious names 
 copied from the registration list onto the poll book are those of his political adversaries 
 whom he can not approach, his difficulty in getting at the proof that they did not vote 
 is great. But the friends of the contestee practiced the fraud so bungingly in Nor- 
 folk that their own work convicts them. It has neither the merit of novelty nor 
 clever execution. The contestee admits, touching two precincts of the Fifth ward of 
 Norfolk from which nearly 1,000 of his 3,600 votes from Norfolk were returned, that 
 the returns are unworthy of belief. The admission was unnecessary, for contestant 
 proved it. He kept tally of the votes cast and proved that the returns made were 
 absurdly large. He then proved who were the last voters at these precincts, and that 
 being proved, the poll books show that these sworn officers, both before and after 
 the voting ceased, added hundreds of fictitious names to those of gennine voters on 
 the list and returned them as cast for the contestee. 
 
 The Democratic registrars were summoned for many precincts, and admitted that 
 many of the names appearing on the poll books were not even upon the registration 
 lists. Many persons appearing in those poll lists, some of them Democrats, came 
 forward and testified that they had not voted. The names thus fraudulently placed 
 on the poll lists were so inartificially made up that they are evidence of crime. They 
 show numbers of persons whose names begm with A voting together, followed by 
 numbers whose names begin with B and C, and so on throughout the alphabet. 
 Dead men were voted, and men known to be absent in the service of the United 
 States. Prominent citizens, about whom the judges could pretend no ignorance were 
 written down on these lists as having voted. Where the frauds permeated every 
 precinct, and the evidence leaves no doubt of conspiracy, and the returns are 
 absurdly large, and poll books forged, it seems idle to go into the details of these 
 returns from Norfolk, precinct by precinct. Suffice it to say that we dismiss the 
 returns from Norfolk as evidence of nothing but an organized effort to return a fraud- 
 ulent vote- for contestee. 
 
 In the course of his impeachment of the returns in Norfolk, the contestant proved 
 437 votes, to which he is entitled. 
 
FiJBTX-HlATil CONGEESS. 613 
 
 In a large number of other precincts there was evidence that more 
 votes were cast for contestant than were returned for him. In most 
 cases more voters themselves testified that they voted for him than 
 were returned, and a still larger number was proved by "certificates" 
 similar to those held admissible in the previous case between the same 
 parties. (See Wise w. Young, Fifty -fifth Congress, «w^e.) The com- 
 mittee went over this testimony by precincts. In cases where the 
 total vote remaining after accounting for the proved vote for contest- 
 ant and the imperfect ballots was less than the vote returned for his 
 two opponents, the committee rejected the whole return and counted 
 only the vote proved. In cases where the discrepancy might, as a 
 matter of arithmetic, be accounted for by the numbers of ballots 
 rejected as imperfect, they corrected the vote according to the proof, 
 deducting the discrepancy from contestee. Making all the corrections, 
 they found the result as above indicated and recommended resolutions 
 declaring contestant entitled to the seat. 
 
 The minority called attention to the fact that many of the witnesses 
 testifying that they voted for contestant did not prove that they were 
 registered or legal voters. They also objected to the "certificates." 
 They then analyzed the testimony by precincts, showing that in a few 
 cases, as admitted by contestee, the discrepancy was so large as to jus- 
 tify the rejection of the returns, but that in most cases the utmost that 
 could be claimed was the correction of the returns according to the 
 testimony, deducting the discrepancy from contestee. By this method, 
 even on the construction most favorable to contestant, the majority of 
 contestee was not overcome, and the minority therefore recommended 
 a resolution declaring him elected. 
 
 The case was fully debated in the House, and the resolution pre- 
 sented by the minority was lost by a vote of 128 to 132. A motion to 
 reconsider this vote was laid on^ the table by a vote of 132 to 129. 
 The majority resolutions (which had first been amended to bring them 
 into the usual form) were then voted on and were passed, the first by 
 a vote of 182 to 127, and the second by a vote of 131 to 125. Mr. Wise 
 was then (on March 12, 1900) sworn in. 
 
 Report 186, parts 1 and 2, first session Fifty-sixth Congress.] 
 
 In most of the Congresses for many years cases were duly pre- 
 sented to the House and referred to the Committee on Elections, which 
 were never acted on or reported by the committee. A comparison of 
 the list of cases given in the index to the Congressional Record (or 
 Congressional Globe) in each Congress, with the list given in this vol- 
 ume, will show the names of the parties in these cases, but there is 
 usually very little other information obtainable in regard to them, and 
 none of that information has any bearing on the purposes of this vol- 
 ume. They are therefore disregarded here.] 
 
P^RT II. 
 
 DIGEST OF THE LAW OF CONTESTED ELECTION 
 
 CASES IN CONGRESS. 
 
 615 
 
INDEX OF TOPICS. 
 
 Page. 
 
 Abandonment 623 
 
 Abatement 624 
 
 Abbreviation 624 
 
 Adjournment, for dinner, etc. See Irregularitj^ in hours of holding election. 
 
 Adjournment of the poll by sheriff in Virginia 625 
 
 Admission {see also Agreement and Waiver) 626 
 
 Affidavits, ex parte. See Evidence. 
 
 Agreement {see also Admission and Waiver) _ 626 
 
 Answer. See Notice of Contest. 
 
 Apportionment 627 
 
 Apportionment act {see also Election by general ticket) 627 
 
 Assessment of Government employees 627 
 
 Assessor of direct taxes, disqualifying office. See Qualifications of Repre- 
 sentatives. 
 Australian ballot. See Ballots imperfectly marked under Australian system. 
 
 Ballots, distinguishing marks 627 
 
 Ballots, double 634 
 
 Ballots, deficiency of 634 
 
 Ballots, excess of 634 
 
 Ballots, imperfect 636 
 
 Ballots irregularly marked under Australian system 640 
 
 Ballots, wrong emblem on party ticket 642 
 
 Ballots, wrong name in party column 643 
 
 Ballots in wrong box 643 
 
 Ballots, secrecy of {see also Election by ballot) 645 
 
 Ballots as evidence of vote. See Recount; Returns, impeachment of; Re- 
 turns, when rejected what vote counted. 
 Ballots, recount of. See Recount. 
 Ballot boxes, shifting of. See Ballots in wrong boxes. 
 Ballot boxes, irregularity in and custody of. See Irregularity. 
 
 Bribery, what consitutes {see also Campaign fund and Undue Influence) 646 
 
 Bribery, evidence of 648 
 
 Bribery, effect of 649 
 
 British pensioner, eligibility of, as Representative. See Qualifications of Rep- 
 resentatives. 
 
 Burden of proof 651 
 
 Campaign fund {see also Bribery) 655 
 
 Canvassing board. See Irregularity in canvass and Ministerial officers. 
 
 Census as evidence 655 
 
 Certificate to documentary evidence. See Evidence, documentary. 
 Certificate of election. See Credentials and Prima facie right. 
 
 Citizenship (see afeo Mexican citizens; Naturalization; Inhabitant) 656 
 
 Committee on elections, precedents of 657 
 
 Committee on elections, powers of 657 
 
 Committee on elections, jurisdiction of 657 
 
 Conspiracy {see also Eraud) 658 
 
 Contest, abandonment of. See Abandonment. 
 Contest, dismissal of — 
 
 For insufficiency of notice. See Notice of contest. 
 
 For failure to appear or to take testimony. See Abandonment. 
 
 For failure to take testimony before proper officer. See Evidence before 
 wrong officer. 
 
 For lack of time to investigate. See Mode of procedure. 
 
 For failure of proof when application for time to take further testimony 
 refused. <See Evidence, additional. 
 
 617 
 
618 DIGEST OF CONTESTED ELECTION CASES. 
 
 Page. 
 
 Contest, procedure in. See Mode of procedure. 
 
 Contest, statute regulating. See Law for taking testimony. 
 
 Contest, wiio are parties to, when contestee dead and his successor sworn in. 
 
 See Vacancy and House of Representatives. 
 Contest, jurisdiction over. See House of Representatives, jurisdiction of, and 
 
 Committee on Elections, jurisdiction of. 
 Counsel, hearing of, by House. See Mode of procedure. 
 County court, power of, in West "Virginia, to make a record. See Evidence, 
 
 documentary. 
 Courts. See State laws. 
 
 Credentials (see also Prima facie right) 660 
 
 Deaf and dumb. See Election, viva voce. 
 
 Deception (see also Ballots, wrong emblem and wrong name in party column) . 663 
 
 Declarations of voters. See Evidence, hearsay, res gestae, and declarations of 
 
 voters. 
 De facto oPFicEiis. See Officers of election, disqualification of, and not sworn. 
 
 Delegate (see also Election, when set aside) 664 
 
 Demurrer. See Notice of contest. .» 
 
 Depositions. See Evidence. 
 
 Deserters. See Qualifications of electors. 
 
 Diligence. See Evidence, additional, and also under Contest, dismissal of. 
 
 Directory laws. <See Laws, mandatory and directory. 
 
 Dismissal of contest. See under Contest, dismissal of. 
 
 Disqualifying office. iSee Qualifications of Representatives. 
 
 District (see also Apportionment act, and pjlection by general ticket) 668 
 
 Domicile. See Residence. 
 Election — 
 
 Adjournment of. See Adjournment. 
 
 Officers of. (See Officers of election. 
 
 Notice of. See Notice of election, and Irregularity. 
 
 Place of. See Irregularity in place of election, and Polling place. 
 
 Right of House to inquire into election. See House of Representatives. 
 
 When election at any poll void. iSee Returns, impeachment of, and when 
 impeached, what votes counted; and see also Fraud, Intimidation, 
 Bribery, Deception, Undue influence, Irregularity, Officers of election. 
 
 Election, what constitutes 670 
 
 Election, when whole election set aside 671 
 
 Election, failure to hold 676 
 
 Election, by ballot. 677 
 
 Election, viva voce (and see all early cases from Virginia and Kentucky ) 678 
 
 Election, by general ticket (see also election laws) 678 
 
 Election, time of holding 678 
 
 Election, in State in rebellion 680 
 
 Election laws (see also Registration laws, and United States supervisors) 681 
 
 Elective franchise (see also Qualifications of electors) 683 
 
 Elector. See Qualifications of electors. 
 
 Eligibility. iSee Eligibility and qualifications of Representatives. 
 
 Enabling act (see also Utah) 683 
 
 Estoppel (see also Agreement, Admission, Waiver, and Suppression of evi- 
 dence) 684 
 
 Evidence, additional 684 
 
 Evidence, admissibility of 689 
 
 Evidence, in chief, in time for rebuttal 690 
 
 Evidence, before wrong officer (see also Law for taking testimony ) 691 
 
 Evidence, transcription and signing of 692 
 
 Evidence, notices to take testimony 693 
 
 Evidence, law for taking testimony 694 
 
 Evidence, ex parte 695 
 
 Evidence, res gestse 697 
 
 Evidence, hearsay 698 
 
 Evidence, declarations of voters 700 
 
 Evidence, matters of general knowledge or inference (see also Census) 701 
 
 Evidence, how illegal votes cast (see cdso Illegal votes) 702 
 
 Evidence, secondary 704 
 
 Evidence, in other proceedings 705 
 
 (the above thirteen heads are properly classified under "Evidence, admis- 
 sibility of," but are separated for convenient reference.) 
 
INDEX OF TOPICS- 619 
 
 Page. 
 
 Evidence, documentary 706 
 
 Evidence, weight of 709 
 
 For evidence required to set aside a return, see Return, impeachment of; 
 for evidence of vote, when return impeached, see Return, when im- 
 peached what votes counted; for amount of evidence required to prove a 
 vote illegal, see Illegal votes, and Votes, presumption of legality; for evi- 
 dence required to prove bribery, fraud, intimidation, etc., see under 
 these heads. 
 Evidence, suppression of. »9ee Suppression of evidence. 
 Executive. See Governor. 
 Ex PARTE APPiDAviTS. See Evidence, ex parte. 
 Ex POST FACTO LAW. See Elective franchise. 
 
 Expulsion 710 
 
 Extension op time to take testimony. See Evidence, additional. 
 Federal election laws. See Election laws. 
 
 Fraud, effect of {see also Returns, impeachment of) 711 
 
 Fraud, evidence of (see also Evidence) 715 
 
 Freehold title. See Qualifications of electors. 
 
 Governor (see also Prima facie right. Credentials, and Vacancy) 718 
 
 Housekeepers. See Qualifications of electors. 
 
 House op Representatives (see also Committee on Elections, Returns, Dele- 
 gate, and Membership) 719 
 
 Illegal votes, when inquired into 722 
 
 Illegal votes, what are. See Qualifications of electors. 
 Illegal votes, how proved (see also Votes, presumption of legality of, Bur- 
 den of proof, and Evidence) : 722 
 
 Illegal votes, how eliminated (see also Returns, when set aside what votes 
 
 counted) 726 
 
 Illegal votes, required evidence of qualification not produced at the polls . . 728 
 Incompatible oppice. See Qualifications of Representatives. 
 
 Indians 732 
 
 Indian reservations 732. 
 
 Ineligibility (see also Qualifications of Representatives) ^ 733 
 
 Inhabitant (see also Qualifications of Representatives) 734 
 
 Inspectors. See Ofllcers of election. 
 
 Intimidation, what is 735 
 
 Intimidation, when inquired into 737 
 
 Intimidation, how proved - 737 
 
 Intimidation, effect of 737 
 
 Intimidation, coercion of employees and dependents 741 
 
 Intimidation, military interference 742 
 
 Irregularities, general principles (see also Laws, mandatory and directory) . . 743 
 
 Irregularities, miscellaneous informalities 745 
 
 Irregularities, indications of fraud (see also Fraud, and Returns, impeach- 
 ment of) 746 
 
 Irregularities in registration (see also Registration ) 746 
 
 Irregularities in hours of holding election (see also Election, time of holding) . 747 
 
 Irregularities in form, custody or number of ballot boxes 749 
 
 Irregularities in place of election (see also Polling place and Unorganized 
 
 counties) - 751 
 
 Irregularities in ofiicers of election (see also Officers of election) 753 
 
 Irrkgularitibb in poll book of viva voce election 754 
 
 Irregularities in count of votes • 754 
 
 Irregularities in form of returns (see also Returns) 755 
 
 Irregularities in transmission of returns (see also Returns) 757 
 
 Irregularities in canvass of votes (see also Mistake) 760 
 
 Judges. See Officers of election. 
 
 Junior. See Ballots, imperfect, and Returns. 
 
 Jurisdiction. See House of Representatives and Committee on Elections. 
 
 Land. See Qualifications of electors. 
 
 Land lists. See Evidence, documentary. 
 
 Laws, Federal election. See Election laws. 
 
 Laws of States. See State laws. 
 
 Law fob taking testimony (see also House of Representatives, Evidence, and 
 
 Notice of contest) 762 
 
 Laws mandatory and directory (see also Election, Election laws, and Regis- 
 tration laws) '63 
 
620 DI0EST OF CONTESTED ELECTION CASES. 
 
 * • Page. 
 
 Legislature "^^^ 
 
 Mandatoky laws. See Laws mandatory and directory. 
 
 Membership , 768 
 
 Mexican citizens 768 
 
 Military governor 768 
 
 Military interference. See Intimidation. 
 
 Military reservations -^ 769 
 
 Ministerial officers {see also Officers of election and Canvassing board) 769 
 
 Mistake {see also Irregularities and Evidence) 770 
 
 Mode of procedure 772 
 
 Naturalization 775 
 
 Notary. See Evidence, before wrong officer, and Waiver. 
 
 Notice of contest, service of 777 
 
 Notice of contest, sufficiency of 778 
 
 Notice op contest, binding force of - 781 
 
 Notice of contest, answer to 783 
 
 Notice of election {see also Vacancy ) 784 
 
 Notice to take testimony. See Evidence, notices to take. 
 
 Oaths. See Officers of election. 
 
 Office disqualifying. See Qualifications of Representatives. 
 
 Officers of election, presumption in favor of acts of 784 
 
 Officers of election, disqualification of 786 
 
 Officers of election, not sworn 790 
 
 Officers op election, partisan appointment of 793 
 
 Officers of election, change or delay in appointment 796 
 
 Paupers (see ako Residence) 796 
 
 Petition. See Notice of contest. 
 Place of election. See Polling places. 
 Pleadings. See Notice of contest. 
 
 Polling places {see also Irregularities in place of election) 797 
 
 Poll tax. See Tax. 
 
 . Polygamy 799 
 
 Prima facie right {see also Credentials and Burden of proof) 799 
 
 Qualifications op electors {see also Illegal votes. Residence, Agreement, 
 
 Tax, Indians) 802 
 
 Qualifications of representatives {see also Delegate, Inhabitant, Ineligi- 
 bility, Citizenship) 805 
 
 Rebuttal. See Evidence in chief in time for rebuttal. 
 
 Recount : 809 
 
 Rejected votes. See Votes illegally rejected. 
 
 Registration {see also Illegal votes) 815 
 
 Registration laws 817 
 
 Representatives, qualifications of. See Qualifications of Representatives. 
 
 Residence' what constitutes 819 
 
 Residence of laborers 821 
 
 Residence of soldiers 822 
 
 Residence of soldiers in Soldiers' Home _ 822 
 
 Residence of paupers and prisoners : 822 
 
 Residence of students 823 
 
 Resignation. See Qualifications of Representatives and Vacancy. 
 Res inter alios acta. See Evidence in other proceedings. 
 
 Returns as evidence : 825 
 
 Returns, when set aside {see also Irregularity) 828 
 
 Returns, evidence to impeach {see also Evidence and Fraud ) 831 
 
 Returns, when rejected, what votes counted {see also Fraud, effect of) 833 
 
 Returns, when rejected. What evidence required to establish vote aliunde 
 
 {see also Evidence) 837 
 
 Returned member. See Credentials and Prima facie right. 
 Shifting of ballot boxes. See Ballots in wrong boxes. 
 Soldiers. See Residence and Legislature. 
 
 State laws {see also House of Representatives ) 842 
 
 Stipulation. See Agreement and Waiver. 
 
 Students. See Residence of students. 
 
 Supervisors of Election. See United States supervisors. 
 
 Suppression op evidence 845 
 
 Tax ;!!!];!" 847 
 
 Tax lists. »S'ce Evidence, documentary. 
 
INDEX OF TOPICS. 621 
 
 Page. 
 Tender. See Votes constructively rejected. 
 Teeritorial delegate. See Delegate. 
 Testimony. See Evidence. 
 
 Tie vote 849 
 
 Time for taking testimony. See Evidence. 
 Time of election. See Election. 
 
 Undde influence {see also Bribery, Deception, and Intimidation) 849 
 
 United States marshals (see also Bribery) 849 
 
 United States supervisors 849 
 
 Unorganized counties 851 
 
 Unorganized territories. See Delegate. 
 
 Utah 852 
 
 Vacancy (see also Resignation) 852 
 
 Vacancy occurring after redistricting. See District. 
 
 Viva voce election. See Election by ballot and Election viva voce. 
 
 Voters, testimony of, when election by ballot. See Election by ballot. 
 
 Voters, qualifications of. See Qualifications of electors. 
 
 Voters, evidence of, to impeach returns. See Returns, evidence to impeach. 
 
 Voters, relation to contest 853 
 
 Votes, presumption of legality of 854 
 
 Votes, sundry irregularities 854 
 
 Votes, illegal. See Illegal votes. 
 
 Votes not cast. See Intimidation and Votes constructively rejected. 
 
 Votes, excess of. See Ballots, excess of. 
 
 Votes illegally rejected 855 
 
 Votes constructively rejected 858 
 
 Voting Machine 861 
 
 Waiver (see also Agreement, Admission, and Estoppel) = 862 
 
 West Virginia 864 
 
DIGEST OF LAW. 
 
 ABANDONMENT. 
 
 Case not defended by contestee. 
 
 Where the contestee, being engaged in a contest for a seat iii the Senate, did not 
 appear to defend his right to a seat in the House, and produced very little testi- 
 mony, the committee assumed that he was not entitled to the seat, apparently for 
 this reason among others. 
 
 Sheridan vs. Pinchbach, 43d Cong _ Smith, 322-341 
 
 Contests evidently abandoned; cases dismissed. 
 
 Where contestants failed to file briefs and paid no attention to repeated notices to 
 appear before the committee, the committee reported resolutions declaring con- 
 testee elected, and giving contestants leave to withdraw their papers. 
 
 Merchant and Herbert vs. Ackhn, 4Blh Cong I Ells. , 345 
 
 "So testimony taken; case dismissed. 
 
 Where no testimony was taken by contestant, he alleging that it was impossible for 
 witnesses to testify with safety, the case was dismissed for want of prosecution. 
 Witherspoon vs. Davidson, 47th Cong 2 Ells., 163 
 
 Where the petitioner alleged irregularities and illegal voting, but presented no testi- 
 mony and explained his laches by asserting that he had been refused permission 
 to see the returns, or procure copies of them, and that there was no law of the 
 Territory (of Arkansas) by which he could compel the attendance of witnesses, 
 the case was dismissed. 
 Lyon vs. Bales, 17th Cong C. & H., 372 
 
 Neglect to appear. 
 
 A memorial was presented October 18, 1803. The petitioner at three different times 
 requested further time to produce testimony. He was finally notified to appear 
 before the committee with his testimony, and not having done so, on March 9, 1804, 
 the case was dismissed. 
 
 Cabell vs. Randolph, 8th Cong C. & H. , 134 
 
 Abandoned by petitioner, continued by the House. 
 
 Where a petitioner failed to appear and prosecute his petition after testimony had 
 
 been taken, the case was recommitted to the Committee on Elections. The report of 
 
 the committee and decision of the House were based on the testimony already 
 
 taken by the parties. 
 
 Kelly vs. Harris, 13th Cong 0. & H., 261 
 
 Committee does not lose jurisdiction of case. 
 
 Where testimony had been taken and briefs filed, but contestant, having been 
 appointed minister to Guatemala, stated to the committee that he no longer desired 
 to prosecute the contest, the committee expressed the opinion that it did not lose 
 jurisdiction of the case, but in the absence of any suggestion of collusion and in 
 view of the character of the issues (ordinary questions as to individual illegal 
 votes), they did not deem it necessary to examine the evidence in detail and 
 reported in favor of contestee. 
 
 Hunter vs. Rhea, 55th Cong ,..,,.,..,.,„...,.., Report 1356 
 
 623 
 
624 DIGB8T Of!" CONTESTED ELECTION OASES. 
 
 Election of contestant conceded. 
 
 Where contestee conceded the election of contestant, the committee commended his 
 action, and reported resolutions seating contestant. 
 
 Selknap vs. McOann, 64lh Cong - - - Report 5 
 
 Contest withdrawn ; case dismissed. 
 
 Contestant claimed to have been injured by false reports that he had signed a peti- 
 tion against a law giving bicycles equal rights with other vehicles, and offered 
 in writing to withdraw from the contest if any such petition with his signature 
 could be shown. Contestee produced the petition and contestant formally with- 
 drew. In view of these facts and of the fact that no testimony had been taken, 
 the committee reported in favor of contestee. 
 
 Chesebrough vs. Mc Clellan, 64th Cong - Report 48 
 
 Contest abandoned; case dismissed. 
 
 Contestant served notice of contest, but appeared to have taken no further steps. 
 The committee reported resolutions confirming contestee in the seat. 
 DavuYa. Culberson, 54th Cong .- Report 180 
 
 Where contestant gave no notice of contest, as required by law, and took no testi- 
 mony, the committee reported in favor of contestee. 
 Pearce vs. Bell, 54th Cong ' - Report 1529 
 
 Where contestant took no testimony and stated to the committee that he had no 
 desire further to press his contest, the committee reported in favor of contestee. 
 Clark vs. Siallings, 55th Cong - Report 188 
 
 After the taking of testimony in a case had proceeded for some time, contestant 
 formally abandoned the contest, and filed a statement to that effect with the 
 papers in the case. The committee reported these facts, and recommended reso- 
 lutions declaring contestee elected. 
 
 Comer vs. Clayton, 65lh Cong Report 19.5 
 
 Where contestant took no testimony, and stated to the committee that he had aban 
 doned the contest, the committee reported in favor of contestee. 
 
 Willis vs. Handy, 6Sth Cong - Report 1239 
 
 ABATEMENT. 
 
 Contest does not abate by death of contestee and swearing in of bis successor. 
 
 Where contestee had died after the testimony was taken and a successor had been 
 elected to fill the vacancy and sworn in, the committee held that the contest did 
 not abate, for if it should appear that contestant had been elected at the first elec- 
 tion, then there was no vacancy to be filled, and the new sitting member had no 
 rights to be prejudiced by any pleadings or agreements made by his predecessor. 
 
 'VS. O'Connor, 47lh Cong 2 Ells., 564 
 
 Contest under tbe statute abates by death of either party. 
 
 A contest between a contestant and contestee, imder the statute, is a proceeding inter 
 partes, and abates on the death of either party. 
 
 Mackey vs. O'Connor {minority report), 47th Cong 2 Ells., 599 
 
 ABBREVIATION. 
 
 The word "twe" not to be counted as "twelve." 
 
 Where the statute required the return to set forth the number of votes received "in 
 words at length," and the return from one county showed for contestee "eight 
 hundred and twe ' votes, the governor issued a special proclamation, quoting from 
 case? in which the words "thous" and "hund" had been construed to mean 
 
ADJOUENMENT. 625 
 
 "thousand" and "hundred," and concluding that it would be "more in conso- 
 nance with adjudged cases" to add the letters "Ive" to the "twe" of the return 
 than to changethe "e" to "o." Counting the vote as eight hundred and twelve 
 gave the majority to contestee. The committee held that the return should either 
 have been counted as eight hundred and two, or evidence procured to explain the 
 ambiguity, or the word rejected as meaningless and the return counted as eight 
 hundred. 
 The minority sustained the legalit}- of the governor's ruling, but there being evidence 
 in the record (which had not been before the governor) that the actual vote was 
 eight hundred and two, the minority so counted it. 
 Smith vs. Jackson, 61st Cong Rowell 17 
 
 ADJOURNMENT 
 
 For dinner, etc., see Irkegul.a.kity in hours ofholdhig election. 
 
 ADJOURNMENT OF THE POLL 
 
 By iSiiERiFF (in Virginia). 
 His power discretionary. . 
 
 The power of the sheriff in Virginia to adjourn the poll to the second and third 
 day, in consequence of rain, is discretionary. He also has power to close the poll 
 at any time of the day after three proclamations made, and no voters appearing. 
 
 Trigg vs. Preston, Sd Cong C. & H., 78 
 
 Prima facie legal. 
 
 Under the power given the sheriff in Virginia to adjourn the poll i.i certain contin- 
 gencies, an adjournment is prima /acic legal. 
 
 Bassett vs. Baijley, 13th Cong 0. & H., 255 
 
 Dlection officers in Virginia have full discretion. 
 
 Under the Virginia law authorizing the officers of election, if by rain or the rise of 
 water courses many voters have been prevented from attending the election, to 
 adjourn the poll for three days, the election officers from the very nature of the 
 case must be the judges whether the contingency has occurred, and even had it 
 " clearly appeared that they were mistaken in this judgment, the committee do 
 not think that their proceedings should be declared illegal and void, in the absence 
 of all proof and of all complaint that they acted fraudulently." 
 
 Goggin vs. Gilmer, ^Sth Cong. I Bart., 71 
 
 Tke legal contingencies mast exist. 
 
 Under the law of Virginia giving the sheriff power to adjourn the election for three 
 days in case of rain, rise of water courses, or the attendance of more voters than 
 can be polled in one day, the existence of the latter contingency is a question of 
 fact, admitting of no discretion on the part of the officer, and on proof that it did 
 not in fact exist the adjournment will be held to be illegal, and all votes given 
 after the first day rejected. Where it was proved that only two persons voted 
 during the last half hour, and at the close of the polls only four persons were pres- 
 ent who had not voted, two of whom were deputy sheriffs, who had been in attend- 
 ance all day, an adjournment to the second day was held to be illegal. 
 Bassett vs. Bayley, 18th Cong C. & H., 257 
 
 Mayor in Virginia has same power as sheriff. 
 
 Under the Virginia laws granting to the sheriffs of counties the right to adjourn tlie 
 poll in certain contingencies, it was held that the same power was possessed, by 
 implication, by the mayor of Norfolk. 
 Loyall vs. Newton, 21st Cong .0. & H., 522 
 
 H. Doc. 510 -40 
 
626 DIGEST OF CONTESTED ELECTION CASES. 
 
 In Virginia entire election mast not last more than three days. 
 
 Under the provision of the '\'irginia general election law of 1831, that the sheriffs in 
 certain contingencies should adjourn the poll "until the nextday, and so from day 
 to day for three days; * * * Imt if the poll * * * is not closed on the first 
 day the same shall be kept open two days thereafter," held, that the entire elec- 
 tion should not consume more than three days, and votes given on the fovirth day 
 nhould be rejected. 
 Draper vs. Johnston, 2Sd Cong - 0. & H., 705 
 
 It had been legal in Virginia for an election, under some circumstances, to be held for 
 four days. The legislature passed an act in regard to elections in general, contain- 
 ing a provision which the committee construed to mean that elections were there- 
 after to be held not more than three days, but in regard to elections for Represent- 
 ative in Congress the provision was that they should be held " in the manner and 
 according to the principles prescribed by the law now in force in relation thereto." 
 It was claimed that this excepted elections for Representative in Congress, and 
 permitted them to be held for four days, as under the old law, but the committee 
 concluded that it was not the intention of the legislature to have the poll for Repre- 
 sentative in Congress continued longer than that for other officers voted for at the 
 same election: 
 Draper vs. Johnston, ^Sd Cong — (,': & H., 705 
 
 ADMISSION (see also Agreement and Waiver). 
 
 Admissions of parties may be disregarded. 
 
 Where the contestant admitted 73 illegal votes, but the minority' could not find so 
 
 many, they deducted only those shown by the evidence to be illegal. "Generally 
 
 the admission of a party is received as proof, but it would not be proper to do so 
 
 in this instance." 
 
 Blair vs. Barrett {minority report) , S6th Congress. Rejjort Xo. 563 page 44 
 
 Admission in hrief followed, but not held binding. 
 
 Where fraud was shown in a number of precincts, and the only votes proved aside 
 from the returns were for contestant, but contestant m his original brief filed with 
 the committee had conceded to contestee all the votes not proved to have been cast 
 for himself, the committee, on account of this concession, and because it was only 
 a question of the size of contestant's majority, and not of the result of the election, 
 counted the votes according to the method of contestant's brief, but stated that the 
 strictly legal course would have been to reject the entire returns and count only 
 the votes proved aliunde. 
 
 Miller vs. Elliott, 61st Cong Rowell, 527 
 
 AFFIDAVITS, EX PASTE. 
 
 See Evidence. 
 
 AGREEMENT (see also Admission and Waiver). 
 
 Parties can not increase or diminish the elective franchise. 
 
 The agreement of parties can neither diminish nor enlarge the elective franchise as 
 secured by the laws of the commonwealth. 
 
 Porterfield vs. McCoy, Uth Cong C. & H., 269 
 
 To be received with great caution. 
 
 " The agreement of parties has sometimes been received as to disputed questions of 
 fact, but it has always been held that this should be done with great caution, as 
 these are not merely contests between the parties, but the rights of the people of 
 the district and of the State and of the people of the United States are involved 
 and can not be agreed away." 
 
 Holmes and Wilso)i, 4Sth Cong I Ells. 324 
 
APPOKTIONMETSTT. 627 
 
 APPORTIONMENT. 
 
 When State divided total representation not increased, 
 
 The State of Virginia, under the apportionment of 1850, was entitled to eleven 
 
 Representatives. When the State of West Virginia was admitted, with three 
 
 Representatives, the committee held that Virginia was then entitled to only eight. 
 
 Segar, 41st Cong 2 Bart., 810 
 
 APPORTIONMENT ACT (see also Election by General Ticket). 
 
 When it went into force. 
 
 The apportionment act under the Seventh Census was held to apply mutatis mutandis 
 to the Eighth Census, and as the apportionment under the Seventh Census was to 
 go into effect on March 3, 1853, that under the Eighth was to go into effect on 
 March 3, 1863. 
 
 iMwe, 37th Cong ^- -I Bart., 418 
 
 California act of Marcli 13, 1883, constitutional. 
 
 The committee held that the apportionment act of California, passed March 13, 1883, 
 was constitutional and that the members elected under it were entitled to retain 
 their seats. The provision of the constitution of California requiring each bill to 
 be read three times did not apply to amendments. 
 
 California Case, 49th Cmg Mobley, 481-485 
 
 Doubtful if House should take cognizance of its violation by a State. 
 
 Where it was claimed that the legislature of Kentucky had redistricted the State 
 contrary to the provisions of the apportionment act of Congress, the committee 
 reported that it was doubtful if Congress had the power to interfere in such matters, 
 and it was certainly not politic to exercise the power if it existed. 
 
 Davidson vs. Gilbert, 56th Cong Report 3000 
 
 ASSESSMENT OF GOVERNMENT EMPLOYEES. 
 
 To be condemned, but not fatal to the election. 
 
 The majority report held that while the assessment of Government employees for 
 political purposes was demoralizing and ought to be made a criminal offense, it 
 could not affect the result of an election unless it was shown that the money thus 
 raised was used corruptly, which was not claimed in this case. On the whole case, 
 which involved other issues, the House agreed with the minority. 
 Plait vs. Goode, 44ih Cong Smith, 658 
 
 ASSESSOR OF DIRECT TAXES. 
 
 Disqualifying Office. /Ste Qualifications op Repkesentatives. 
 
 AUSTRALIAN BALLOT. 
 
 See Ballots irregularly marked under Australian system. 
 
 BALLOTS. 
 
 Distinguishing Marks. 
 Any mark by which ballot may be identified when counted. 
 
 Under the Michigan Australian ballot law, which provided that any ballot which 
 shall have any distinguishing mark or mutilation shall be void and shall not be 
 counted, the committee said: "A distinguishing mark may be defined as 'any mark 
 
628 DIGEST OP CONTESTED ELECTION CASES. 
 
 l)y which a Ijallot may t-ie identified when it is counted, and by which parties 
 making an agreement before voting can show by the ballot that tHey have carried 
 out the agreement;' no such vote should have been counted by the inspectors." 
 They followed a recent decision of the supreme court of Michigan in throwing out 
 these votes. 
 
 Kilkiifiji vs. Ricluirdmv, .',:l(l Coruj Report 1946, p. 5 
 
 Their use condemned as a violation of the secrecy of the ballot. 
 
 Where the tickets used by one party were distinguished by having red stripes on the 
 back, the committee said: "It is clear to the committee that such marks upon bal- 
 lots are in violation of the spirit of the law that provides for a ballot system; one 
 of its great objects, if not its greatest one, is to allow the elector to make his choice 
 by a secret vote, which no one shall have the right to question, to examine, or to 
 know; and to pi'otect those who desire it in this right the law implies, if it does 
 not absolutely require, that the tickets shall be folded by those who intend to vote 
 them, and so folded they shall be placed in the ballot box. It is intended that 
 no one shall he. able to know, by seeing the outside of a ballot, what its character 
 may be." "While it might be going too far to reject such ballots, unless so pro- 
 vided by law," yet it is evident that their use greatly facilitated intimidation. 
 Whyte vs. Harris {majorili/ report) , 36th Cong I Bart. , 260 
 
 Statute against, mandatory. 
 
 Where the statute prescribes the form of the ballot, and that "any ballot otherwise 
 than described is illegal and must be rejected," the statute is mandatory. Under 
 such a law ballots containing the names of candidates for "district electors," there 
 being no such officers known to the law, must be rejected entire, and can not be 
 counted even for the officers correctly designated. 
 IjQwe vs. Wlieder (minoriiy report), 47th Cong 2 Ells., 107 
 
 South Carolina law mandatory. 
 
 Ballots rejected because obnoxious to the law of South Carolina against marked and 
 mutilated ballots were properly rejected and can not be counted. 
 . SmaUs vs. Elliott, 50lh Cong Mobley, 669 
 
 Strict construction safest. '^ 
 
 A strict construction of statutes in regard to distinguishing marks on ballots is the 
 safest. (Authorities cited. ) 
 
 Lynch ys. Chalmers (minority report), 47th Cong 2 Ells., 373-37-3 
 
 Nota violation of a law that "the election shall be by ballot." 
 
 The law of Maryland provided that ' ' the election shall be by ballot, ' ' and that ' ' upon 
 the ballot shall be written or printed the name or names of the persons voted for, 
 and the purpose for which the vote is given, plainly designated." Where these 
 provisions were complied with, but the tickets of one party were distinguished l)v 
 having red stripes on the backs, the minority (whose conclusions were substantiallV 
 adopted by the House) said: " We can not for a moment admit that the marks on 
 the ticket, or the color of the paper on which the name and office are thus plainly 
 designated, have aiiything to do with the legality of the vote cast, or are to be held 
 as infringing the law of the State." 
 
 Whyte ws. Harris [minority report) , 35th Cong I Bart., 264 
 
 Numbering of ballots not fatal. 
 
 "Th6 numbering of the ballots cast at an election, in the absence of any statute 
 expressly so declaring, does not of itself invaUdate an election, unless soiie injury 
 is shown to have resulted." 
 
 McKenzie vs. Braxton, 4£d Cong Smith, 25 
 
 Where the statute made it a misdemeanor for any judge of the election to place a 
 number or mark upon the ticket of any voter, but it was not declared that the vote 
 of a legally qualified voter should be rejected because his ballot was marked by the 
 judges, the committee said: "We should not be inclined to put a construction upon 
 this statute which would enable an officer of election to destroy the effect of a bal- 
 lot cast in good faith by a legal voter by placing a, number or mark upon it. A 
 
BALLOTS. 629 
 
 ballot may be thus marked or numbered without the knowledge or consent of the 
 voter, and it would be manifestly unjust that he should, in this way, be deprived 
 of his vote. We think it plain that, inasmuch as the statute affixes a penalty for 
 marking a ballot, and does not expressly declare that a marked ballot shall, be 
 thrown out, the board erred in rejecting the vote of this county upon this ground." 
 Gkldings vs. Clark, .'r^d Cong Smith, 95 
 
 The numbering of ballots by the election officers held not to be an irregularity call- 
 ing for the rejection of the poll under the laws of Florida. 
 
 Finleii vs. Walls, 44th Cong Smith, .374 
 
 The numbering of ballots in the absence of any statute forbidding it, and without 
 fraud or injury, does not vitiate them. 
 Bisbee vs. Hull, 46th Cong I Ells. , 319 
 
 Ballots numbered by the officers of election, in the absence of, or contrary to State 
 law, should be counted. 
 
 Donelly vs. Washburn {minority report ) , 4Sth Cong I Ells. , 494-503 
 
 Hot numbered, thrown out. 
 
 Under the Australian ballot law of Missouri, which the committee construed as man- 
 datory, the committee threw out all the ballots on which the judges of election had 
 not properly placed their initials or the ballot numbers. The minority held that 
 the statute was directory, and counted the votes. 
 
 O'NeiUvs. Joy, 63d Cong Report, 268 
 
 A law for the nnmbering of ballots nnconstitntional, wbere the election required to be 
 "by ballot." 
 
 The constitution of Minnesota provided that "all elections shall be by ballot." The 
 legislature passed an act requiring the election officers in cities to number the 
 tickets. This law was held to be unconstitutional by the district court of one of 
 the counties previous to the election, and the decision was affirmed by the supreme 
 court of the State subsequent to the election. The decision was based on the 
 ground that a numbered ticket is not a "ballot,'' inasmuch as it does not preserve 
 the secrecy of the vote implied in the word "ballot." At the election in contest, 
 previous to this decision, the election officers in some precincts numbered the bal- 
 lots. The committee approved of the reasoning of the decision, and rejected the 
 votes of all the precincts where the ballots were numbered, on this ground, and 
 also on the ground that it was shown that the numbering was part of a conspiracy 
 to intimidate the voters. 
 Donelly vs. Washburn {majority report) , 4Sth Cong I Ells., 455 
 
 Ballots not nnmbered, thrown ont. 
 
 Under the law of Missouri providing for the numbering of all ballots, and that "no 
 ballot not numbered shall be counted," the committee rejected the votes of three 
 precincts where none of the ballots were numbered. 
 
 Lindsay vs. Scott, 38th Cong .' I Bart., 572 
 
 The prefix "Hon" not a distingnishin§f mark, 
 
 Where the statute provided that ballots should have no distinguishing mark, the 
 committee unanimously held that the prefix "Hon" was not ^uch a mark. 
 
 Burns vs. Young, 43d Cong Smith, 181 
 
 Fenn vs. Bennett, 44lh Cong Smith, 593 
 
 Writing by officers of election not fatal. 
 
 Under the statute of California (sec. 1206) providing that "When a ballot found in 
 anjf ballot-box bears upon the outside thereof any impression, device, color, or 
 thing * * * it must with all its contents be rejected," the committee held that 
 ballots on the back of which the election officers had written the word ' ' challenged ' ' 
 and the voter's name ought not to be rejected. ' ' While the strict letter of the law 
 would exclude these ballots, yet the spirit of the law is evidently otherwise. If 
 the voter had placed this indorsement upon the ballot, or any mark whatever by 
 which it could be distinguished from other ballots, they should be rejected. The 
 law was made to protect the voter, and not to disfranchise him." 
 
 Wigginton vs. Pacheco, 46th Cong I Ells., 13 
 
630 DIGEST OF CONTESTED ELECTION CASES. 
 
 Voter's name on face of ballot not a diBtiugnishiug mark. 
 
 Under the statute of California (sec. 1207) providing that "when a ballot found in 
 any ballot box bears upon it any impression, device, color, or thing, or is folded in 
 a manner intended to designate or impart knowledge of the person who voted such 
 ballot, it must, with all its contents, be rejected," the committee held that a mark 
 on the /ace of the ballot, in order to invalidate it, must be one intended to imp.irt 
 knowledge of the person who voted it, and that the voter's name, written by him- 
 self at the bottom of the ticket, was not such a mark. The minority held that any 
 mark whatever was included in the terms of the statute, and also that the voter's 
 name in his own handwriting was calculated to impart knowledge of his identity, 
 Wigginton vs. Pcwheco, 45th Cong I Ells., 15, 40 
 
 Marks on back, by inadvertence, not material. 
 
 Where, under the Ohio statute against distinguishing marks, the judges of election 
 had rejected a ballot containing a name and two rows of figures on the back, but 
 the evidence showed that it was voted in this condition by inadvertence, the com- 
 mittee said, ' ' we do not think that it is within the mischief intended to be pre- 
 vented by the statute," and counted the ballot. The minority held that it was 
 properly rejected. 
 
 Wallace vs. McKinhy, 4Sth Cong 3Iobley, 187, 209 
 
 Pencil marks made by voters on face of ballots not distingfuishing marks. 
 
 Under the Ohio statute requiring the ballots to be "without any mark or device by 
 which one ticket may be distinguished from another, except the words at the head 
 of each," three ballots having pencil marks on the face, made by the voters, were 
 rejected by the judges of election. Held, that "the object of this statute was to 
 guard against frauds upon the voter, and these cases do not fall within the spirit 
 or letter of the statute." The committee counted the ballots. The minority held 
 that it being proved that the ballots in this case were marked for the express pur- 
 pose of identification by persons who were suspected of a design to vote against their 
 party ticket, and who adopted this plan to show the party managers how they 
 voted, the ballots were properly rejected. 
 
 Camphdl vs. Morey, 4Sth Gong ._ Mobley, 217, 235 
 
 The caption "Chronicle Selected Ticket" not misleading. 
 
 Ballots havingthe caption "Chronicle Selected Ticket" were not obnoxious to the 
 law of Missouri, which provides that the caption shall not be calculated to mislead 
 the voter, and should have been counted. 
 Sessinghaus vs. F)'osi, 47th Cong _ _ 2 Ells. 392 
 
 The words "Eepublioan ticket" a "device." 
 
 The law of North Carolina provided that ' ' the ballots shall be on white paper and may 
 be prmted or written, or partly written and partly printed, and shall be without 
 demce." The committee held that under this statute ballots having printed at the 
 head the words ' ' Republican Ticket ' ' were properly rejected by the election officers 
 as havmg a device, but stated that they had "come to this conclusion with much 
 reluctance." 
 
 The minority called attention to the fact that these tickets were printed in a Demo- 
 cratic printing office by the procurement of a prominent Democrat, and left to the 
 House the question whether they should be counted or not. On the whole case 
 the House, sustained the report of the majority. 
 
 Yeatea vs. Martin, 46ih Cung _ I ]^\\g sgg 4x2 
 
 Names of candidates for President and Vice-President a distinguishing mark. 
 Under a statute forbidding the printing of "any picture, sign, color, mark, index, or 
 insignia on the ballots, the committee rejected ballots containing the words "For 
 President, Benjamin Harrison; for Vice-President, Whitelaw Eeid" at the ton 
 The minority counted these ballots. " 
 
 Thrasher xs. Enloe, SSd Cong Report 842, pp. 3, 10 
 
BALLOTS. 631 
 
 The words "1st district," "2iid district," etc., not obnoxious to the law against 
 "figures." 
 
 Where tlie ballot is required to be "a plain piece of white paper, without any figures, 
 marks, rulings, or embellishments thereon," held that the numerals 1st, 2nd, 3rd, 
 etc., designating the electorial districts of the State, do not come within the letter 
 or the spirit of the law. 
 
 Lowe vs. Wieeler, 47th Cong 2 Ells., (i4 
 
 Where the statute prohibited printing or writing on the ballot anything but the names 
 of the candidates and the offices to which they were to be chosen, Mr. Ranney 
 held that "it is sufficient that the words and figures were designed only to 
 describe the candidates and to designate the offices, so as to express the intention 
 of the voter. * * * The statute allows of all that may properly be used to 
 express the intention of the voter as to candidates and the offices." The words 
 "1st district," "2nd district," etc., before the names of the candidates for presi- 
 dential electors, were therefore not obnoxious to the law. (On this point Mr. 
 Ranney's report evidently expresses the views of the majority of the committee.) 
 Loit-e vs. WIteeler ( ilr. Ranney) , 47th Cong 2 Ells., 82 
 
 Use of too heavy type a "mark." 
 
 When the ballot is required to be " without any figures, marks, rulings, characters, 
 
 or embellishments thereon" the minority held that a ballot on which one of the 
 
 names was printed in such heavy type as to be noticeable on the back of the ticket 
 
 was "marked" within the meaning of the law and must be rejected. 
 
 Lowe ys. Wheeler (minority report), 47th Cong 2 Ells., 116 
 
 The use of extra heavy type invalidates the ballot. 
 
 Under the South Carolina law requiring the ballot to be "without ornament, desig- 
 nation, mutilation, symbol, or mark of any kind whatsoever" * * * "and 
 such ballot shall be so folded as to conceal the name or names thereon," the com- 
 mittee threw out all the ballots cast for contestant on the ground that his name 
 was printed in heavy type, which, when the ballots were folded in a certain way, 
 could be distinguished by the impression on the back. 
 
 Miller vs. Elliott, 52d Cong Stofer, 170 
 
 The minority denied that the type and folding in this case in fact made the ballots 
 distinguishable, and condemned their rejection. 
 
 Miller vs. Elliott (minority report), 63d Cong Stofer, 188 
 
 Printers' dashes not distinguishing marks. 
 
 AVhere ballots were required to be "without anydevice-or mark* by which one ticket 
 may be known or distinguished from another, except the words at the head of the 
 ticket, * * * and a ticket different from that herein prescribed shall not be 
 received or counted," the committee held that printers' dashes, such as are used in 
 the ordinary course of printing and regarded by printers as marks of punctuation, 
 did not constitute such "device or mark," especially where it was shown that they; 
 were printed on the tickets without any intention to violate or evade the law, and 
 that they were not intended or used to distinguish the ballots. This decision was 
 made in spite of a contrary decision by the supreme court of the state from which 
 the case came. 
 Lynch ye. Chalmers, 47th Cong 2 Ells., 340-35.3 
 
 Ordinary appliances of printing must be shown to have been used for illegal pur- 
 poses to constitute them distinguishing marks. 
 
 Under a strict statute against distinguishing marks it may be that printers' dashes or 
 other punctuation marks, or even the type in the body of the ticket or the arrange- 
 ment of the words at the head, can be used as ' ' marks or devices, ' ' but the extreme 
 limit to which the law could be applied in such cases would be to inquire, "first, 
 in the use of these appliances, which are ordinarily used in printing, were they 
 so arranged as that they become 'marks and devices,' and were they so used and 
 arranged for that purpose ; and, secondly, was the unusual manner of their being 
 used such as might or ought to put a reasonably prudent man on his guard?" No 
 case had been called to the attention of the committee which went even so far as this. 
 Lynch vs. Chalmers, 47ik Cong 2 Ells. , 3.51 
 
632 DIGEST OF CONTESTED ELECTION CASES. 
 
 The fictitious names "A. Doyle," "B. Doyle," "C. Doyle," etc. 
 
 Where, under the Austiialian ballot system, in New York, certain ballots had a name 
 "scratched" and the fictitious names "A. Doyle," "B. Doyle," "C. Doyle," etc., 
 in series, for sixteen names, substituted, the minority, whose conclusions were sus- 
 tained by the House, rejected these ballots, among other reasons for these distin- 
 guishing marks. The committee refused to reject them. 
 
 Noijiv vs. Rockwell, 5M Gong Htof er, ;-!l-35; 43 
 
 The preposition "for." 
 
 Where the ballots of contestant had been thrown out by county canvassing boards 
 on the ground, among others, that the preposition "for" in the phrase "for Con- 
 gress" was in contravention of the law requiring the ballots to contain nothing 
 "except the name or names of the person or persons voted for and the office to 
 which such person or persons are intended to be chosen," the minority held that 
 the ballots were improperly rejected. (The majority rejected them on other 
 grounds.) 
 Miller vs. Elliotl ( miiuiritii report ) , .5 id Cmu/ Sti ifer, 1 83 
 
 TTse of nnnsaally thick paper a distingnishing mark. 
 
 Where ballots were required to be written or printed on ' ' plain white paper " of a 
 certain size and "without any distinguishing marks or embellishments thereon," 
 tickets printed on white paper so much thicker than ordinary paper as to be easily 
 distinguished were in violation of the law, and also of the State constitution, which 
 provided that "all elections shall lie by ballot." 
 
 English vs. Peelle, 4Sth Cong Mubley, ll>8 
 
 Use of thicker paper not a distingnishing' mark. 
 
 Where the tickets of one party were printed on "No. 2 book paper" and those of 
 the other party on "No. 3 book paper," those printed on the thicker paper can 
 not be thrown out as having a ' ' distinguishing mark or embellishment. ' ' 
 English vs. Peelle {minority report), 4Sth Cong Vlobley , 178 
 
 Not on "plain white paper." 
 
 Under the mandatory statute of South Carolina requiring that the " ballot shall be 
 of plain white paper," the committee rejected all the ballots cast for contestant on 
 the ground that the paper on which they were printed {"40-pound white book 
 paper," described by some witnessses as of a "dirty white" or "dark white" 
 color) was not "plain white paper." 
 Miller vs. Elliott, SSd Cong .Stofer, 167-173 
 
 The minority asserted that the paper was in fact "plain white paper." 
 
 Miller vs. Elliott [minority report), 5Sd Cong ..'^tofer, 186 
 
 , Type wrong size; ballots counted. 
 
 "Under a statute, expressly mandatory in this clause, requiring the letters at the head 
 of the columns to be one-fourth of an inch high, the letters in the word "Inde- 
 pendent," at the head of an independent Republican column on the ballot, were 
 only one-eighth inch high in two counties; but the committee counted them, con- 
 cluding that from the general trend of its decisions on similar questions the supreme 
 court of Illinois would in such a case inquire whether anv fraud was intended or 
 any harm done. 
 
 Rinaker \'s. Down Ing, 54ih Cong Report 1400, p. 30 
 
 Exact size immaterial. 
 
 Under the Ohio statute requiring the ballot to be " not more than 2 J nor less than 
 L'f inches wide," a ui-itten ballot 21 inches' wide was voted. The committee held 
 the exact size to be immaterial and that the ballot was properly counted, under 
 the prmciple that "as to those things over which the voter has control the law is 
 mandatory, and that as to such things as are not under his control it should be 
 held to be directory only." 
 
 Campbell vs. Morey, 4Sth Cong , IMobley, 1'18 
 
BALLOTS. 633 
 
 Leas than one-fifth of an inch below laat name immaterial. 
 
 Under the Ohio statute requiring a space of at least one-fifth of an inch between each 
 name on the ballots, certain ballots were attacked on the ground that there was 
 less than a fifth of an inch left below the last name on the ticket. The committee 
 held that they were at least not vitiated as to the other names. 
 
 Campbell vs. M<ire;i, 48th Cong ; Mobley, 218 
 
 Too short; rejected. 
 
 Under the statute of .South Carolina requiring ballots tu be "5 inches long," the 
 committee rejected all the ballots cast for contestant, on the ground, among others, 
 that they were one-sixteenth of an inch too short. 
 
 iimer \st. Elliott, 62(1 Cong Stofer, 170 
 
 The minority disagreed, on the ground that the slight error was not a distinguishing 
 mark and " de minimis non curat lex." 
 
 Miller vs. EUiott [minoritij report), 52/1 Cong .Stofer, 182 
 
 Not of exact dimensions prescribed; rejected. 
 
 Under a mandatory statute prescribing the dimensions of ballots, ballots differing 
 from these dimensions by one-sixteenth to one-eighth of an inch were thrown out 
 by the election officers. The committee sustained the rejection. The minority 
 counted the votes on the ground that the variation in size was not sufficient to be 
 substantial. 
 
 Thrasher vs. Eulne, 33il Cong Report 842, pp. 2, 10 
 
 Not fatal where envelopes used for ballots. 
 
 The use of tinted paper for tickets, where not forbidden by the statute, will not void 
 the election if the statute, by the use of envelopes, preserves the secrecy of the 
 ballot. 
 
 Page vs. I'irri', 4tith ('ong Jlobley, .504 
 
 £rasnre in red pencil a distingnishing mark. 
 
 Under a mandatory statute against distinguishing marks, ballots having the words 
 "For Amendment I" erased with &reil pencil, so that they might be distinguished 
 from others, should be rejected. 
 SitUivan vs. Felton, 50th Cong Mobley, 762 
 
 In California, name erased in red pencil, printed name coanted. 
 
 A statute providing that if names are erased or substituted "in any other manner 
 than by the use of a lead pencil or common writing ink" the written name shall 
 be rejected and the printed name counted should be construed to apply to erasures 
 made with red or blue pencil or ink. 
 
 Svllirun vs. Felton, 50th, Cong, {minorili/ report) ^Nlobley, 781 
 
 Various slight marks held to be immaterial. 
 
 Under a statute providing that "the voting shall be by ballot, which ballot. shall be 
 plain white paper, clear and even cut, without ornaments, designation, mutilation, 
 symbol, or mark of any kind whatever, except the name or names of the person 
 or persons voted for and the office to which such person or persons are intended 
 to be chosen, which name or names and office or offices shall be written or printed, 
 or partly written and partly printed, thereon in black ink or with black pencil, 
 and such ballot shall be so folded as to conceal the name or names thereon, and so 
 folded shall be deposited in a box to be constructed, kept, and disposed of as here- 
 inafter provided, and no ballot of any other description found in any election box 
 shall be counted," ballots were counted by the committee which had been rejected 
 by the election officers on the following grounds : An extremely small asterisk, 
 printed in the lower comer of the ticket; names "scratched" in red or purple ink; 
 slight specks on the paper; a printer's dash in a place where no person was named 
 for an office;, printer's dashes separating the names on the ticket; the name of a 
 candidate for justice of the peace written in with red pencil, and pencil marks on 
 
634 DIGEST OF CONTESTED ELECTIOK CASES. 
 
 the tiokete made by the judges in pushing them into the box with a pencil. The 
 minority agreed in counting all these votes except those on which red ink or pencil 
 had been used, contrary to the terms of the statute. The committee counted those 
 where red ink had been used, in spite of the statute, on the ground that this 
 being the only ink to be had in the only store in the place its use was in a manner 
 compulsory. 
 
 Goodrich vs. Ballock, 61st Cong Eowell, 581-629 
 
 DOIBI.E. 
 
 Counted by committee on proof that they were wrongly rejected. 
 
 "Under a statute providing for the rejection and destruction of ballots appearing to be 
 "deceitfullj^ folded together," the judges had rejected two tickets on the ground 
 that they were so folded. There appeared to be two names more on the poll list 
 than votes counted, and testimony was admitted to show that the rejection of the 
 votes was an error in fact. The committee counted the votes. 
 
 Reed vs. Cosden, 17th Cony - C. & H., 356 
 
 Their rejection by election officers sustained. 
 
 Where the inspectors of election in two towns had rejected 6 votes as being folded 
 together contrary to law, the committee, considering them the best judges of the 
 facts, declined to interfere with their decii^ion. 
 Adams ya. Wilson, 18th Cone .._..C. &H., 375 
 
 Deducted from votes. 
 Double ballots, cast and counted for contestee, were deducted from his column. 
 
 Greerij \>>. iSciill, 5Jd Cong Stofer, 162 
 
 Under certain circumstances should be counted. 
 
 Where a voter openly voted a ballot containing the State and Congressional ticket 
 and another containing the township ticket, and tlie judges received the same and 
 folding the two together deposited them in the box, they had no right afterwards 
 to throw them out as a double ballot. 
 
 Frederick vs. Wilson, 48th Coyig Mobley, 404 
 
 Dei'icien'cv ok. 
 
 Beficiency of four ballots not fatal. 
 Where the ballots in a box were 4 less than the names on the poll book, and the 
 judges of election in making up their return added 2 to the vote for each candi- 
 date; Held, that it was an error on the part of the judges, but not such an error as 
 to vitiate the return. 
 
 Hard vs. Romeis, 49ih Cong Mobley, 424 
 
 EXCKSS OF. 
 
 Small excess immaterial. 
 
 Where there were two more ballots in the box than names on the poll list, but it did 
 not appear who got the benefit of the excess, the committee refused to reject the 
 poll or to deduct votes from either candidate. 
 
 Wigginlon vs. Pacheco, 45th Cong _ _ I Ells., 14 
 
 Where excess unfairly drawn out, returns corrected. 
 
 There was a large excess of ballots in many of the boxes in a county, the tickets were 
 such as to be readily distinguishable by tlie touch, and in drawing out the excess 
 only ballots for contestant were withdrawn. The contestant was pre\'ented bv 
 widespread violence and disorder from taking testimony to establish the votes 
 aliunde: Held, that the vote might be corrected on the basis of the returns and the 
 excess drawn out. 
 
 Bisbee vs. Fiuleg, 47th Cong _ 2 Ells. liS3 
 
BALLOTS. 635 
 
 If drawn out according to law, return should stand. 
 
 Where an "excess of ballots in the box is drawn out as provided by law, and the elec- 
 tion is honesth- conducted, the poll should not be rejected. 
 
 Bishee vs. FInlei/ (minorily report), 47th Cong 2 Ells., 223 
 
 Where not purged by inspectors, excess deducted pro rata. 
 
 Where there was an excess of 11 in the number of ballots over the number of names 
 on the poll list, and the statute of Florida requiring the box to be purged by draw- 
 ing out the excess of ballots at random had not been complied with, the commit- 
 tee held that the statute of Florida provided a principle on which the box might 
 be purged, and deducted the 11 votes from the candidates in proportion to the 
 number of votes each had received. But some of those signing the majority report 
 favored throwing out the whole vote of the precinct. 
 
 Finleii vs. Walls, 44th Cong Smith, 389, 391 
 
 Deducted pro rata. 
 
 Ballots in excess of the names on the poll list should (in Ohio) be deducted pro rata 
 from the vote cast for each candidate. 
 
 Campbell vs. Morey, 4Sih Cong Mobley, 216 
 
 The last ones found in the box should be rejected. 
 
 Campbell vs. Morey {minority report), 48th Cong ilobley, 235 
 
 Where excess large and fraudulent and unfairly drawn out, whole poll rejected. 
 
 Where the excess of ballots found in the box (in South Carolina) was drawn out 
 unfairly, the officer purposely drawing out nearly all Eepublican ballots, which 
 could be distinguished by the touch, the proceeding was condemned as illegal; and 
 in a precinct where there were 817 ballots in the box, an excess of 229 over the 
 number of names on the poll list, and 160 Republican and 69 Democratic tickets 
 ■were drawn out, leaving the ballots to be counted 459 Democratic and 129 Eepub- 
 lican, the committee held that " there is no means of ascertaining the true vote at 
 this poll. It is certain that the official return is utterly unreliable, and * * * 
 your committee are clearly of the opinion that the poll should be excluded." 
 SmaUs\9. Tillman, 47th Cong 2 Ells., 458, 471 
 
 Where there is a large excess of votes in the l5ox, due to fraud, the return should be 
 rejected even if the excess has been drawn out under the South Carolina law. 
 Smalls vs. Elliott {minority report), 50th Cong Mobley, 729 
 
 Where unexplained and legally drawn out, returns should stand. 
 
 Where the provisions of the law of South Carolina were adhered to in the drawing 
 out of the excess of ballots, and there was no proof as to how the excess of ballots 
 came to be in the box, the return should stand. 
 Smalls vs. Tillman {minority report), 47th Cong ..2 Ells., 486 
 
 Where the excess of ballots found in the box was drawn out in accordance with the 
 law of South Carolina the proceeding was legal, and the polls can not therefore be 
 rejected. 
 
 Smalls vs. Elliott, 50th Omg Mobley, H64 
 
 A small excess of ballots not evidence of fraud. 
 
 Where there was an excess of 9 ballots over the number of names on the poll list, 
 
 but it was shown that this was owing to the crowding at the polls at certain hours, 
 
 rendering it impossible .for the clerks to take down the names as fast as the votes 
 
 were cast, the excess was not considered an indication of fraud. 
 
 Eggleston vs. Sirader, 41st Cong 2 Bart., 903 
 
 Where due to fraud of partisans of contestee, entire excess deducted from his vote. 
 
 Where there was a large excess of ballots over the number of names on the poll list 
 in a large number of precincts, and from the fact that all the officers of election were 
 Democrats, that Democratic ' ' tissue ballots ' ' were found in many of the boxes, and 
 
636 DIGEST Ol' CONTESTED ELECTION CASES. 
 
 other circumstances, it was evident that the ballot-box stuffing was a Democratic 
 fraud, but in drawing out the excess under the South Carolina law nearly all the 
 ballots drawn out were Republican (it being possible to distinguish the ballots by 
 the touch) , the minority (on this point apparently sustained by a majority of the 
 committee) restored to the vote of contestant all the Republican ballots which had 
 been drawn out and deducted the entire excess from contestee. 
 Lee vs. Richardson {imnority report), 47th Coinj 2 Ells., -521-561 
 
 Where there was a very large excess of ballots (averaging 139 and in one case amount- 
 ing to 1,071) in two-thirds of the precincts of a district, and from the fact that all 
 the officers of election were Democrats, that Democratic "tissue ballots" were 
 found in the boxes, that Republican voters generally folded their tickets in the 
 presence of the judges to show that they only voted one ballot, that in some pre- 
 cincts there were more Democratic tickets in the box than there were voters of 
 both parties, and from other circumstances, it was evident that the stuffibtig of the 
 ballot boxes was a Democratic fraud, but in drawing out the excess under the 
 South Carolina law nearly all the tickets drawn out were Republican (it being 
 possible to distinguish the tickets by the touch), the committee restored to con- 
 testant all the Republican ballots drawn out and -deducted the entire excess from 
 contestee. 
 Mackey v.^. 0' Connor, 47th Cong 2 Elk. , .572-578 
 
 Considerable excess and other suspicious circumstances, return rejected. 
 
 AVhere there was an excess of 26 ballots in a vote of about 200, and the count was 
 conducted without witnes-ses and under suspicious circumstances, the committee 
 held that this was sufficient to reject the return. 
 
 Langston vs. Tenable, 51st Cong Rowell, 4-11 
 
 Not of itself fatal. 
 
 The mere fact that the number of votes returned exceeds the number of names 
 checked on the voting list does not, in the absence of fraud or of a change in the 
 result, affect the validity of the election. (Paine, §599. ) And where there were 
 other suspicious circumstances claimed, but they were satisfactorily explained by 
 one of the judges of election, who also testified to the honesty of the election, 
 the minority held that the returns should be allowed to stand. 
 
 Langstonys. Venahle (minority report), 51st Cong Howell, 501 
 
 Imperfect. 
 
 Officers of election best judges of voter's intention. 
 
 Where the inspectors of election had counted as a blank a ballot containing the 
 printed name of the sitting member struck through with a single stroke of the pen, 
 but still legible, the committee, considering the inspectors the best judges of the 
 f^cts, refused to alter their decision. 
 
 Adams vs. Wihon, 18th Cong (\ and H., 375 
 
 To be counted according to tbe intention of the voter. 
 
 "The committee think it clear, although canvassing officers charged with purely 
 ministerial duties may not go outside of the ballot, whatever mav be the defect in 
 the same, but must make their teturn upon the ballots as theV appear on their 
 face, that the House, as the final judge of the elections, returns, and qualifications 
 of its members, has not only the right but the duty, when a ballot is ambiguous or 
 of doubtful import, to look at the circumstances surrounding the election explain- 
 ing the ballot, and to get at the intent and real act of the voter. This will not 
 give the right to contradict the ballot 'itself, but simplv to explain what is uncer- 
 tain and ambiguous in reference to it." 
 
 Lee vs. Rainey, 44th Cong Smith, 590 
 
 The committee reported that votes returned for John Bowers and John il. Bowey 
 were probably intended for John M. Bowers, but seemed to hesitate to so count 
 - them in the absence of proof that they were actually so intended. 
 
 Williams vs. Boirers, ISth Cimg C. andH.. 264 
 
BALLOTS. 637 
 
 Votes returned as having been east for "Judge Ferguson" instead of "Fenner Fer- 
 guson, ' ' and ballots reading ' ' Bird B. Chapman for Congress ' ' instead of ' ' For Con- 
 gress, Bird B. Chapman," were unanimously counted by the committee according 
 to the evident intention of the voters. 
 
 Chapman vs. Ferguson, 35th Con;/ I Bart., 268 
 
 Where ballots read "For Congress, Francis P. Blair," but on the same ballots, over 
 the names of thirteen candidates for the State legislature, were the words "For 
 Representatives in Congress," the committee held that the avident intention of the 
 voters was' to vote for Mr. Blair for Representative in Congress, and counted the 
 votes for him. 
 
 Blairxs. Barrett, S6th Cmuj I Bart., 318 
 
 Votes cast for E. M. Braxton and Elliott Braxton were counted by the committee 
 for Elliott ^I. Braxton, the intention of the voters being clearly proved. The case 
 of votes cast for C. M. Braxton and Braxton was not decided, not being material 
 to the case. 
 
 ilcKcnzie vs. Braxton, 43d Cong Smith, 21 
 
 Votes returned for Guntee, T. il. Guntee, Thomas M. (hmtce, and T. Ros Guntei-, 
 but proved to have been cast for Thomas 51. Gunter, were counted for him, but 
 those returned for S. JNI. Guntee and Thomas IM. Crenter, in regard to which no 
 evidence was offered, were not so counted. 
 
 Gvnter vs. Wdshire, 43d Cong Smith, 239 
 
 Where a large number of ballots containing the name Jas. H. Rainey were counted 
 for Joseph H. Rainey, and it was proved that they were so printed by mistake; that 
 the voters were informed that they were for Joseph H. Rainey, and that there was 
 no other person of similar name a candidate for Congress, the committee refused 
 to reject the votes. 
 
 Lee vs. Rainey, 44th Cony _ _ . .Smith, 589 
 
 Ballots for Hosea Rockwell, H. H. Rockwell, Hosey Rockwell, and H. Rockwell 
 were counted for Hosea H. Rockwell, and ballots for H. Noyes, Henry T. Nois, 
 and Henry Noyes were counted for Henry T. Noyes. 
 
 Xoi/es vs. Rockwell, 5Sd Cong Stofer, 36 
 
 Votes cast for Judge Abbott, Josiah G. Abbott^ Josiah G. Abbott, of Chelsea, Abbott, 
 of Chelsea, P. G. Abbott, J. G. Abbott, Abbott, and J. G. Abbott, of Chelsea, were 
 unanimously counted for Josiah G. Abbott, of Boston, and votes for Benjamin 
 Frost, of Chelsea, Rufus S. Frost, Frost, of Chelsea, Rufus S. Frost, of Boston, and 
 R. S. Frost, of Chelsea, were unanimously counted for Rufus S. Frost, of Chelsea. 
 Abhott vs. FroBt, 44th Cong ^ Smith, 614, 617 
 
 Ballots for iludd, S. E. iludd, and S. N. Mudd were unanimously counted by the 
 committee for Sydney E. Mudd, and a ballot for Compton for Barnes Compton. A 
 ballot on which the name "Sydney E. Mudd" appeared twice was counted bj' the 
 majority as one vote. The minority did not count it, on the ground that the ' ' pas- 
 ter" was so placed as to conceal the words "For Representative in Congress." 
 Mudd vs. Compton, 51st Cong Rowell, 152 
 
 James E. Campbell wa,s a candidate for Congress and William McLain a candidate for 
 sheriff. Where a voter had written the word " W. W. McCane" under the words 
 "For Congress" and the word "camel" under the words "For sheriff," the com- 
 mittee held that the ballot ought to be counted for James E. Campbell for Congress, 
 under the principle that "the intention of the \-oter ought to prevail whenever it 
 can be ascertained by an inspection of the ballot, and, if the ballot is ambiguous, 
 the intention of the voter may be shown." 
 
 Campbell ya. Morey, 48th Cong Jlobley, 217 
 
 Ballots containing the names "Wallace," "J. H. Wallai'e," "John H. Wallace," 
 "W. W. Wallace," "Maj. Wallace," "Ma. Wllac," "Mag. Wolac," "Woloc," 
 "J. AVales," "Jonathan H. Wallage," etc., were counted by the committee for 
 contestant, Jonathan H. Wallace. The minority only counted those (like the first 
 five above) closely approximating the true name. 
 
 Wallace vs. McKinley, 48th Cony Mobley, 186, 187 
 
638 DIGEST OF CONTESTED ELECTION CASES. 
 
 Where, by a mistake of the printer, contestee's name was spelled Hehert instead of 
 
 Herbert on a number of ballots, but there was no other person of similar name a 
 
 candidate, and the intention of the voters was plain, the committee refused to 
 
 reject the votes. 
 
 Slrobach vs. Herbert, 47lh Cong - 2 Ells., 6 
 
 Ballots reading "For Representative, Sixth district," were counted for Representa- 
 tive in Congress, Sixth Congressional district, where the circumstances were such 
 that they could not reasonably have any other meaning. 
 Boynton vs. Loring, 4Sth Cong I Ells., 351 
 
 Where ballots were cast in the Third district of Massachusetts by voterf^ in that dis- 
 trict bearing the words ' ' For Representative to Congress, Fourth district, Wal- 
 bridge A. Field, of Boston," Mr. Field being a candidate in the Third district, the 
 committee unanimously held that the words " Fourth district" did not constitute 
 a part of the legal designation of the office, and the intention of the voters being 
 plain, the votes should be counted for contestee. 
 
 Deanvs. Field, 4Sth Cong ---I Ells., 193, 217 
 
 The tickets voted for contestee were printed thus: " Representative in Congress, 3rd 
 district, A. 0. Latimer," and contestant claimed that they should not have been 
 counted for him because they did not state that they wer« voted for a candidate 
 for the Third district of the State of South Carolina nor for a Representative to 
 the Fifty-fourth Congress. The committee (citing Blair vs. Barrett, I Bart., 308) 
 held that "the ballots complained of were clearly siifficient." 
 
 Moorman vs. Latimer, 54th Cong Report 626 
 
 The word "junior," omission not fatal. 
 The omission of the word "junior" on ballots evidently ijitended for a candidate 
 known by that addition will not deprive him of the benefit of the votes if such 
 intention can be clearly shown. 
 
 Turner vs. Baylies, 11th Cong C. and H., 235 
 
 Where votes were returned for Isaac Williams, junior, and Isaac AVilliams, and it 
 appeared that there were three persons in the district by the name of Isaac Wil- 
 liams, but only the one known by the addition of "junior" was a candidate for 
 Congress, the committee reported that the votes were probably cast for the same 
 person, but seemed -to hesitate to give him the seat until subsequent proof showed 
 that many of the votes returned without the addition of "junior" were actually 
 cast for Isaac Williams, jr., and wrongly returned by the mistake of the returning 
 officers. 
 
 Williams vs. Bowers, ISth Cong C. and H., 264 
 
 Votes were returned for Westel Willoughby, but the evidence showed that the}' were 
 cast for Westel Willoughby, jr., but the "junior" was omitted by the returning 
 officers. The votes were counted by the committee for Westel Willoughbv, jr. 
 Willoughby vs. Smith, 14lh Cong C. and H., 265 
 
 Omission of initial of middle name. 
 Where votes were rejected by the county canvassers on account of the omission of 
 the initial of the middle name of the candidate voted for, the committee unani- 
 mously counted the votes. ' 
 
 Miller vs. Thompson, 31st Cong I Bart. 119 
 
 Name written twice, counted once. 
 
 A ballot rejected by the election officers because the sitting member's name was twice 
 written on it was counted by the committee. 
 
 Vallandigham xa. Campbell, 35lh Cong I Bart. , 231 
 
 Too many names; not counted by committee. 
 Where the district was entitled to elect one Representative and the petitioner had 
 been credited with one vote on a ballot containing his name and four others, with 
 no other designation than "for Congress," the committee rejected the vote. 
 Reedva. Cosden, 17th Cong C. and H., 357,358 
 
BALLOTS. 639 
 
 Omission of Christian name immaterial. 
 
 Ballots not containing the Christian name of a candidate should nevertheless be 
 counted for him where the intention of the voter is plain. 
 
 haus vs. Frost, 47lh Cong 2 Ells., 393 
 
 The law knows but one Christian name, and the omission of tlie middle name or its 
 initial on a ballot is not material or fatal. 
 
 McKenzk YS. Braxton, 4Sd Cong Smith, 23 
 
 Omission of Christian name fatal. 
 
 Where two ballots having on them merely the name ' ' Wilson ' ' were counted by the 
 election officers for Jeremiah M. Wilson, under the Indiana statute providing that 
 votes should not be lost for defect of form if the election officers could satisfy 
 themselves with reasonable certainty for whom they were cast, the minority of 
 the committee held: "On their face the ballots were ambiguous and unintelligible. 
 The defect was curable by extrinsic evidence to explain and apply them; it has not 
 been offered, and they are deducted from contestee's vote on this account." 
 
 Gooding ys.Wihon {minority report) , 4^d Cong Smith, 87 
 
 Can not be counted so as to contradict the ballot. 
 
 Where a voter wrote the name of contestee on his ballot after the words " For Presi- 
 dential electors," but testified that he intended to vote for him for Representative 
 in Congress, the committee held that the vote could only be counted for Presiden- 
 dential elector. "When a ballot clearly designates the office to be filled and the 
 name of the person voted for, no court has ever permitted the voter to contradict 
 his ballot by evidence that he intended to vote for a different person, or for the 
 same person for a different office. Your committee do not feel at liberty to depart 
 from the unbroken line of precedents in cases of this kind, although it is conceded 
 in this case that l^he rule works a hardship on the voter. It is sometimes neces- 
 sary to sacrifice the merits of a case in order to maintain an inflexible legal rule." 
 Wigginton vs. Pacheco, 45th Cong I Ells., 18 
 
 It is the duty of an elector to clearly indicate for whom he intends to vote, at least 
 to the extent that surroimding circumstances free his ballot from ambiguity with- 
 out contradicting it. A ballot containing a name slightly resembling the name of 
 one of the candidates can not be counted for him when the difference is so great 
 that to count it would be to contradict the ballot. 
 
 Wallace vs. McKinley (minority report), 4Sth Cong Mobley, 212 
 
 A meaningless ballot not to be explained by extrinsic evidence. 
 
 "We do not think the law of Massachusetts changes the general rule with reference 
 to the designation which jiiust appear upon all ballots in order to make them effec- 
 tual. The words ' No vote shall be counted which does not dearly indicate,' etc., 
 adds nothing to the general rule of law which requires the election officers to reject 
 any vote when either the name of the person intended to be voted for or the office 
 which the voter intended the person voted for to fill does not appear from the bal- 
 lot itself; that is to say, where there is such ambiguity in the writing or printing 
 of the name of the person voted for or of the office for which he is a candidate that 
 it is impossible to tell from the ballot itself what the name of the person intended 
 to be voted for is or the office which the voter intended him to fill, the ballot 
 must be rejected, and no extrinsic evidence can be heard to supply the defect." 
 Soynlon vs. Loring, 46th Cong I Ells., 351 
 
 Ballot not to be contradicted, but a donbtfnl one may be explained. 
 
 ' ' Evidence may not be received to contradict the ballot nor to give it a meaning when 
 
 it expresses no meaning of itself; but if it be of doubtful import, the circumstances 
 
 surrounding the election may be given in evidence to explain it and get at the 
 
 intent of the voter." 
 
 Dean vs. Field {minority report), 46(h Cong I Ells. , 217 
 
 Imperfect or ambiguous ballots may be explained in the light of surroundings, pro- 
 vided that proof aliunde shall not be permitted to contradict the ballot or to remove 
 any imperfections which could not be similarly- removed in the most solemn written 
 agreements. 
 McKenzie vs. Braxton, 4^d Cong Smith, 23 
 
640 DIGEST OF CONTESTED ELECTION CASE3. 
 
 In Illinois, where name written, but printed name not erased, neither name coTinted. 
 
 The statute of Illinois providing that when a ballot designates more persons for an 
 office than there are candidates to be elected, it shall be counted for neither of the 
 persons designated is mandatory, and under it ballots containing the name of con- 
 testant written under the unerased name of contestee should be counted for neither. 
 WortUngton vs. Post, 50th. Conr/ Mobley, 647 
 
 "Paster" counted rather than original name. 
 
 Where a "paster" is so put on a ballot as not to cover the name of the opposing can- 
 didate, ttie "paster" should be regarded as the last act of the voter and counted. 
 The same rule should apply as when the name of one candidate is written and the 
 printed name of the other not erased. 
 
 Frederick vs. Wilson, 4Sth Cong - - - - - -Mobley, 404 
 
 " Sticker " not covering original name. 
 
 Where a ticket had on it a "paster" bearing the name of the contestant, but leavii^ 
 the name of the contestee exposed, the committee held that the placing of the 
 sticker on the ballot indicated the intention of the voter and counted the vote for 
 contestant. (The election officers had counted it for contestee. ) 
 ' Greevy vs. Scull, 52d Cong -- Stof er, 161 
 
 Written and printed name ; writing should prevail. 
 
 Where the name of contestant was written on a ballot under the printfd name of 
 contestee, it should be counted for contestant. 
 
 IFnHace vs. McKinlcij, 4Sth Cong Mobley, 187 
 
 " The writing should prevail." 
 
 Wallace vs. McKhdrg {miiitiriiy report), 4Sth Covy _ Mobley, 194 
 
 Congressional part a separate ticket. 
 
 It would seem that the part of the ticket which relates to the candidate for Congress 
 may be regarded as a separate ticket. 
 
 Lowe vs. Wheeler {Mr. Hunney), 47th Cony 2 Ells., 83 
 
 Written ballots, where printed ones stolen. 
 
 In a precinct where all the printed tickets for contestant had been stolen and written 
 ballots were used, the committee unanimously counted the votes. 
 
 ilartlii vs. Lockhurt, '>4th < 'ony Report 2002 
 
 IjfREOi' ij.ini.Y "JIauked ITxdek ArsTR.vi.i.vN System. 
 Ballots marked Ijy election officers without re(iuiring oath of disability. 
 Sec iLLEG-iL Votes, nijnired proof of qnalilicatioiistiot produced at polls. 
 
 Incorrectly marked for President, counted for Congress. 
 
 Ballots correctly marked for Congress had been thrown out and burned by the judges 
 because incorrectly marked for President. The law plainly required the judges (in 
 Virginia) to count them for the offices correctly marked, and the committee counted 
 them. 
 
 Broun vs. Swiin.'<oii, u.'Ali ( hug Report 1070," p. 3 
 
 Where intention of voter clear, should be counted. 
 
 Where the ballots were so marked as unmistakably to show the will of the voter, 
 but were technically defective, the minority counted them. "No rule of law which 
 would deprive a legal elector of his ballot, where his right to vote is unquestioned 
 and his intention to vote for a particular candidate is clearly made out, will be favored 
 by any court or any tribunal, and no mere technical construction of the law will be 
 adopted or even tolerated which will produce such wrong and work such injustice." 
 Yost vs. Tucker {minority report), 54th. Cong Report 1636, part 2 
 
BALLOTS. 641 
 
 Presumed to have been correctly marked. 
 
 Where witnesses in excess of tlie number returned for contestant swore that they 
 voted for hira, the committee held that it was to be presumed that the ballots were 
 correctly made out, especially as they were, in most cases, marked by the election 
 judges. The burden would be on the other side to show that the ballot was not 
 correctly made out. 
 
 Wise vs. Young, 55th Cong Report 772, p. 13 
 
 Presumption that the voter will cast his ballot correctly. 
 
 The presumption is that the voter will cast his ballot correctly. It will not do "to 
 withhold from the voter an opportunity to cast his ballot, and in answer to his c:om- 
 plaint say to him that he probably would have lost his vote in trying to cast it. Every , 
 legal voter is entitled to an opportunity, and if he fails to register his voice on account 
 of incapacity or neglect the fault is his own." But not so when the fault is with the 
 election oflBcers, or even with administrative officers who made the polls too large. 
 Brovm vs. Swanson, 55th Cong Eeport 1070, p. 5 
 
 Where wrongly marked by officers of election, counted. 
 
 Where an officer of election testified that he had marked certain ballots for illiter- 
 ates wrong, and these ballots were thrown out for irregularity, the committee counted 
 them. " It is well settled that an elector can not lose his right to vote by the mistake 
 of one of the election ofiicers. If the voter himself made the mistake, the ballot 
 should not be counted, but where he depends upon an officer whose duty it is to 
 assist him in the preparation of his ballot, and the officer, through ignorance or 
 design, fails to mark the ballot properly, it should be counted." 
 
 Brown vs. Swanson, 55th Cong Report 1070, p. 8 
 
 Fatal irregularities in Michigan. 
 
 Under the Michigan Australian ballot law and the decision of the supreme court of 
 Michigan on it [Scott vs. Glaserr, 61 NW. Kep., 648] the committee threw out bal- 
 lots marked as follows: With a cross in and other crosses on both sides of the party 
 voting square; with two crosses at the head of the Republican ticket and two 
 crosses at the upper left-hand corner on the face of the ballot; with a double cross 
 at the head of the Republican ticket and the letter "H" over contestant's name; 
 marked regularly for the Republican ticket; with two crosses at the right-hand 
 upper corner of the ballot; with a cross on each side and one below the party vot- 
 ing square; with the words "This I vote for" in the space containing the vignette 
 on the Republican ticket; with a strip of three-fourths inch cut off one margin of 
 the ballot; marked regularly for the Democratic ticket, but with a cross opposite 
 the name bf the Republican candidate for Congress, the name of the Democratic 
 candidate not being erased, but having a line drawn under it; with a name erased 
 and the words ' ' For Ben Harrison ' ' written in ; with a line drawn through the voting 
 space on the Democratic ticket, and the words "No good;" with three crosses at 
 the head of the Republican ticket; marked with a stamp after a few names with a 
 stamp over one and partly over and partly on another name, not having the initials 
 of the inspector; with a circle on each sideof the party voting square; with a cross 
 after each name on the Democratic ticket but two, which names were erased and a 
 mark placed after the names of the competing Republican candidates; with the 
 words "All right" at the head of the Rei)ublican ticket; with a pencil mark 
 running down through three party tickets; with a voting stamp in the Republican 
 square and a pencil cross in the Democratic square; with an extra voting cross at 
 the bottom of the ballot; a voting cross before one name and on another. 
 Belknap vs. Richardson, 53d Cong Eeport 1946, p. 7-9 
 
 Accidentally blotted, not invalidated. 
 
 Ballots correctly marked in ink, but folded before the ink was dry so as to make a 
 blot or impression on the unscratched name on the ballot were counted by the com- 
 mittee. "This is purely accidental and not to be deemed the marking or scratch- 
 ing intended by the statute [of Virginia], which is to be done by drawing a line 
 'with a pen or pencil' through the names of the candidates for whom the voter 
 does not wish to vote." 
 
 Yost vs. Tucker, 54th Cong Report 1636 
 
 H. Doc. 510 il 
 
642 DIGKST OF CONTESTED ELECTION CASES. 
 
 "Caption marked" ballots (in Virginia) counted. 
 
 The v\ords "None other shall be a le^al ballot" in section 3 of the [Walton] election 
 law of Virginia refer to the Australian ballot provided for at the public expenf^e, 
 and the words in section 11, "No ballot save an official ballot, above provided for, 
 shall be counted for any person," were, in the opinion of the committee, intended 
 only as a prohibition (jf the counting of any other than the ballot provided for by 
 the' first section of the act. Where voters in erasing the names not voted for had 
 also erased the caption of the ticket, but there being only one office to be filled, nti 
 ambiguity was possible. The committee held that these ' ' caption-marked ballots ' ' 
 did not lose their character as official ballots and should be counted. 
 
 Yust vs. Tucker, 54lh Cony Report 1636 
 
 Names (in Virginia) not accurately "scratched;" ballots rejected. 
 
 Ballots "imperfectly marked" under the Virginia ["Walton"] ballot law, the line 
 of erasure not actually touching three-fourths of the letters of some of the erased 
 names, or the names being erased by a series of vertical or obliqje dashes, were 
 not counted by the committee. "It is not for the committee to decide whether 
 the provision as to the marking of the ballot is a wise or reasonable one or not. 
 The voter has failed to express his will by the so-called 'imperfectly marked' 
 ballot according to the requirement of the statute, and, failing in that, the statute 
 declares that the ballot is void." 
 
 Yost vs. Tucker, SSh Cong Report 1636, p. i 
 
 Fatal irregularities in Illinois. 
 
 Under the Illinois Australian ballot law of 1891 the committee found it to be the law 
 "that ballots on which the voter undertook to express his choice by marks 
 other than the cross placed in the circle or square, aa provided by the statute, are 
 not legal and should not be counted; that ballots voted by electors who were 
 assisted in marking their ballots without having first made the affidavit of disability, 
 as provided by said statute, are not legal and should not be counted; that the 
 initials of that one of the judges of election who delivered the ballots to the voters 
 area part of the 'official indorsement' required by the statute, and ballots not 
 bearing such initials are not legal and should not be counted." 
 Steward vs. Chilrh, 53d Cong Report 1741, p. 3 
 
 Liberal construction in Illinois. 
 
 "It is by express statutory provision and not by judicial construction that ballots 
 having irregular or distinguishing marks are not counted." In the absence of anv 
 such express provision, and with the general trend of former decisions in the State 
 (Illinois) favorable to a liberal construction, the committee adopted a liberal con- 
 struction, even under the new Australian ballot law. 
 
 Rinaher vs. Downing, 54th Cong Report 1400, p. 15-21 
 
 Two column marks, not "double marking" for offices not duplicated. 
 
 Ballots marked (in Illinois) in the circle at the head of the Republican column, and 
 also at the head of an "Independent Republican" column containing but one 
 name, and that of a candidate for a local office, were counted for Congress, m accord- 
 ance with a recent decision of the supreme court of Illinois that such marking was 
 not "double marking" for the offices not duplicated. 
 
 liinaker vs. Downing, 54th Cong Report 1400, p. 14 
 
 Wrong Emblem i.in Party Ticket. 
 
 Where the emblem at the head of a party column was fraudulently changed, whole 
 vote of county thrown out. 
 
 As the result of a fraudulent conspiracy to injure contestant, participated in by the 
 county clerk and carried out by bribery, the regular Republican emblem of the 
 "eagle" was placed over bogus "Independent Republican" ticket and a raccoon 
 substituted as the emblem overthe regular Republican column. Seventy-nine votes 
 were cast for the ticket under the eagle, and as these were under the circum- 
 stances evidently intended for contestant, the committee added them to his vote. 
 They refused to throw out the vote of the county or to add or deduct other votes, 
 
BALLOTS. 643 
 
 • as there was no evidence that the fraud had any effect on any except these 79 votes. 
 As these were not enough to overcome the returned majority, this decision would 
 leave contestee in his seat. 
 
 Two members of the committee recommended that the vote of the whole county be 
 thrown out, on the ground that the effect of this sort of fraud can not be accurately 
 measured, and on the further ground that some of the signatures to the "Inde- 
 pendent Republican" petition were not in legal form and the remainder fell short 
 of the 100 necesFary to make a valid petition. These two facts invalidated the 
 whole ballot. 
 
 The House agreed with this minoriltf and seated contestant on this issue. 
 
 HopkiiiK vs. Kendall, a4th ( 'ong Report 2809 
 
 Wrong Name in Party Column 
 
 Where no deeeption, election valid. 
 
 Contestant and contestee both claimed to be the regular Republican nominees. A 
 decision before the election was favorable to contestee, his name was placed in the 
 party column on the ballots, and he received most of the votes. A subsequent 
 decision, on appeal, after the election, was favorable to contestant, and he asked 
 that the party votes be counted for him or that the election be declared void. 
 There had been no deception of the voters, and the committee held that, the 
 majority of them having actually voted for contestee, he was elected. 
 Fairchild vs. Ward, 55lh Cong Report 798 
 
 Party vote should he transferred to rightful candidate. 
 
 One member of the committee tiled an elaborate dissenting report, holding that con- 
 testant was entitled to the party vote and was elected. 
 
 Fairchild vs. Ward {Mr. Gaines), 56th Cong Report 798 
 
 Result unaffected. 
 
 Where contestant claimed that contestee's name was irregularly placed in the regu- 
 lar Republican column on the ballot, but had made no effort to have his own name 
 placed there nor to prevent contestee's name from being so placed, and contestee 
 received a large majority of the votes as cast, the committee saw nothinj> in these 
 facts to affect the validity of the result of the election. 
 
 While vs. Boreing, 56th Cong Report 876 
 
 In Wrong Box. 
 
 Whether counted 
 
 Where separate ballot boxes were used for the general election and for the vote on 
 constitutional amendments, and twelve votes against the amendments were found 
 in the general-election box and twelve votes for contestant in the amendnlent 
 box, the majority held that the votes for contestant should be counted, the minor- 
 ity that they should not. 
 PkM vs. Goode, 44th Cong Smith, 652, 677 
 
 Not counted. 
 
 Where, by mistake, a ballot containing the names of two candidates for the Stale 
 senate was placed in the box provided for votes for Representative in Congress 
 the committee unanimously held that it could not afterwards be changed, and a 
 majority held that it should be counted as one vote for member of Congress. The 
 minority held that it should be excluded. 
 
 Washburn vs. Ripley, 21st Cong C. and H., 681 
 
 "The committee are unanimously of the opinion that when the votes are taken by 
 ballot and separate boxes used, after they are deposited in the box it is not com- 
 petent or proper for the voter or selectmen to alter or change the ballot as delivered 
 into the boxes; and that the intention of the voter is to be ascertained alone from 
 the box in which his ticket is deposited; and that the selectmen conducting the 
 elections at the places above specified acted correctly in making out their return 
 to the governor and council of all the ballots they found in the box which was 
 
644 DIGEST OF CONTESTED ELECTION CASES. 
 
 used for the reception of tickets for a member of Congress and in refusing to count 
 the votes they found in other boxes with the name of Washburn on it and add- 
 ing them to his list of votes given for him as a member of Congress. The adoption 
 of any other rule would be fraught with danger to the purity of the elective 
 franchise." 
 
 Washburn vs. Ripley, Slst Cong C. and H., 681 
 
 Where a majority of all the votes was required for election, the committee held that 
 votes placed in the Congressional box, probably by mistake, for persons who were 
 candidates for other offices voted for at the the same election should be counted 
 in reckoning up the whole number of votes cast for member of Congress, even 
 though some of the persons voted for would have been ineligible to Congress. 
 Similarly a vote evidently intended for the candidate for Congress, but placed in 
 the senatorial box, was properly counted as a vote for him for State senator, and 
 could not be added to his vote for Congress. 
 
 Washburn vs. Ripley, 21st Cong C. and H., 681 
 
 Where a vote for contestee was found in the "State box " and was counted for him, 
 though thereby the number of votes for Congress was made one greater than the 
 number of names on the poll list, the committee deducted it from his vote. 
 
 Covode vs. Foster, 41st Cong 2 Bart., 611 
 
 Decision of election officers in regard to tliem to be followed. 
 
 Where ballots for a candidate for Congress had been put by the voters in the box for 
 receiving ballots for the State legislature, and ballots for candidates for the legisla- 
 ture in the Congressional box, and the judges, deeming it a mistake, had trans- 
 ferred the ballots to the right boxes and counted them, the committee said that the 
 precedents were in such cases to abide by the decision of the judges, whatever it 
 was, and argued that this was the proper course, but left the question to the House 
 to decide. The committee report was in favor of petitioner, and the House merely 
 declared the seat vacant, but it does not appear what bearing this question had on 
 the result. 
 Newland vs. Graham, S4th Cong I Bart., 8 
 
 Shonld be counted. 
 Where ballots are deposited in the wrong box by mistake they should be counted. 
 Campbell vs. Weaver, 49th Cong _ Mobley, 456 
 
 Shifting of boxes condemned and ballots in wrong boxes counted. 
 
 The shifting of ballot boxes for the purpose of deceiving voters and enforcing on them 
 an educational test not permitted by the constitution of the State is an unlawful 
 and fraudulent proceeding. "An act may not expressly be forbidden by law, but 
 if it is done with an unlawful purpose, and succeeds in accomplishing that purpose, 
 the act is thereby made unlawful." Under such circumstances the votes found in 
 the wrong boxes should be counted. "It is no answer to sav that the counting of 
 such ballots is prohibited by statute (even admitting that the statute is a reasona- 
 ble regulation, which, under' the peculiar circumstances in South Carolina, we do 
 not) when the mistaken deposit has resulted from the active deception of the 
 managers. It is a crime at common law to enter into a conspiracy to commit an 
 offense against the puritjr and fairness of a public election." (Paine on Elections, 
 section 496, and authorities cited. ) 
 Miller vs. Elliott, 51st Cong Eowell, 520 
 
 Shifting of boxes justified and ballots in wrong boxes not counted. 
 
 The section of the election law of South Carolina which provides for a number of 
 ballot boxes, plainly labeled, tor the different offices, and requires that the voter 
 shall be separated from others and not spoken to by anyone except the judges 
 while at the polling place depositing his vote, is well calculated to carrv out the 
 provisions of the constitution that the voter shall be protected from "an undue 
 influence from power, bribery, tumult, or improper conduct," and to protect him 
 in his right to a secret ballot. If the voters were found to be receiving information 
 from outsiders which they were required to receive from the judges, "if the wise 
 
BALLOTS. 645 
 
 provisions of this law were being interfered with and rendered nugatory by any 
 outsider at any poll, or if it came under the observation of those selected to super- 
 vise the execution of this law that its letter or intention or spirit was being violated, 
 we submit it was the duty of tlie managers to shift the boxes or perform any other 
 legal act to subserve its proper execution. ' ' 
 Miller vs. Elliott {minority report), 51st Cmig Eowell, 541 
 
 Placed in wrong box by inspector, connted. 
 
 A ballot accidentally placed in the wrong box by the inspector (in New York) was 
 counted by the committee. 
 Noyes vs. Rockwell, 6Sd Cong Stofer, 35 
 
 Shonld have been counted. 
 
 Ballots for Congress mistakenly deposited in the wrong box (in Georgia) should 
 have been counted. 
 Felton vs. Maddox, 54th Cong Report 1743, p. 5 
 
 Counted on proof alinnde of contents. 
 
 Where ballots which it was alleged should have been counted were destoyed, it is 
 clearly the right of the party claiming them "to prove by the testimony of the 
 judges, or of any witness, the exact condition of the ballots, and he is entitled to 
 the benefit of any that he can show were cast for him." 
 
 Yost vs. Tucker, 54th Cong Report 1636 
 
 Connted. 
 
 Where there were six ballot boxes, and the various ballots were required to "be put 
 in the proper box or boxes by said voter, or by the judges at the request of the 
 voter," and the judfjes refused to deposit ballots, or were alleged to have deposited 
 them wrong, and many ballots, all of the opposite party to the judges in charge of 
 the contested boxes, were found in the wrong boxes, the committee counted the 
 votes, where there was proof of them, or threw out the whole poll, where the 
 fraud was such as to vitiate the returns and the true vote was not otherwise 
 ascertainable. 
 
 Martin vs. Lockharl, 54th Cong Report 2002 
 
 Shonld not be counted. 
 
 The minority held that the votes found in wrong boxes should not be counted, 
 
 otherwise it would be possible for a voter to cast six votes for one candidate for one 
 
 office by placing a ballot for him in each box. They asserted that this was in fact 
 
 done in one precinct in this case. 
 
 Martin vs. Loekhart, 54th Cong Report 2002, part 2 
 
 Seckecy of (see ateo Election by Ballot). 
 
 A secret ballot less important than true ascertainment of result. 
 
 "The committee are not prepared to admit that the policy which shields the vote of 
 the citizen from being made known without his consent is of more importance than 
 an inquiry into the purity and result of the election itself. If it is it can not pro- 
 tect the illegal voter from disclosing how he voted." 
 
 Cessna vs. Meyers, 4M Cong Smith, 67 
 
 Important that it be preserved. 
 
 "The object of the adoption of the ballot was to afford the voter the means of pre- 
 serving the secrecy of his vote, and to enable hiui to vote independently and freely 
 without being subject to be overawed, intimidated, or in any manner controlled 
 by others, or to any ill will or persecution on account of his vote. The secret bal- 
 lot is justly regarded as an important and valuable safeguard for the protection of 
 the voter, and particularly the humble citizen, against the influence which wealth 
 and station may be supposed to exercise." 
 
 Finley vs. Bisbee, 45th Cong I Ells., 102 
 
646 DIGEST OF CONTESTED ELECTION CASES. 
 
 Compulsory on voter, under Australian system. 
 
 ' ' Under the Australian ballot system, secrecy is not merely permitted, it is enforced ; 
 it is not solely for the benefit of the voter, but for the benefit of the public as well. 
 A compulsory secrecy, unknown to former systems of voting, is a fundamental and 
 essential element of this ballot law." 
 
 Rinaker vs. Downing {minority report) 64th. Cong Report 1400, part 2 
 
 For the protection of the voter, and not compulsory on him. 
 
 Where (in Virginia) a poll was objected to on the ground that the illiterate Repub- 
 lican voters whose ballots had been marked for them by a Democratic judge exhib- 
 ited them to the Republican judge before depositing them. The committee held 
 that this was not fraud nor a violation of the Australian ballot law. "The secrecy 
 is for the protection of the voter, and is not compulsory as to him." 
 Brovn vs. Swanson, 56th Cong Report 1070, p. 4 
 
 Official ballots illegally circulated, not fatal if not used. 
 
 Under the law of Louisiana it was a^ misdemeanor" for any person connected with 
 the preparation of the official ballot to give out any information in regard to it 
 except as provided in the act. There was proof that one official bailot was in 
 unauthorized hands before the election, and inconclusive testimony that others 
 may have been, but no proof that any such ballots were voted or misused. "In 
 the absence of evidence that any official ballot, fraudulently or gtherwise obtained 
 prior to the day of election, was voted or attempted to be voted, it can not be held 
 that the existence of such outstanding ballots in any way affectied the result of the 
 election." 
 
 Romain vs. Meyer, 66th Cong Report 1521, p. 7 
 
 As Evidence of Vote. 
 See Recount; Returns, impeachment of; Returns, irhen rejected v^hal voteK counted. 
 
 Recount of. 
 
 See Recount. 
 
 BALLOT BOXES. 
 
 Shifting of. 
 
 See Ballots in Wrong Boxes. 
 
 Irregularity in, and Custody of. 
 
 See Irregularity. 
 
 BRIBERY. 
 
 What Constitutes. {See, nho, Campaign Fund and Undue I.vfluence.) 
 
 Employment in a Government navy-yard. 
 
 " We believe that bribery can be committed in the employment of voters in a navy- 
 yard, but the mere fact of employment alone does not prove briberv. It employ- 
 ment is given to make men vote contrary to what they would do, it would be 
 bribery, but there must be proof, first, that men were emploved in order to cause 
 them to change their politics, and, second, that thev voted, and voted in favor of 
 the party giving the employment. The presumption is in public service that 
 Republicans employ Republicans, that Democrats employ Democrats, * * * 
 and the employment does not change their politics. If any presumption arises 
 
BRIBERY. 647 
 
 when a man obtains employment in a navy-yard it is that he is a Republican, and 
 if that be so the employment does not affect either his vote or the result. ' ' The fact 
 of employment might form a link in a chain of evidence, but standing alone it is 
 not enough. 
 
 PliiU vs. Goode [majority report not adopted by the IIousp) 44th Cong Smith, 658 
 
 Where it was charged that the patronage of the Norfolk Navy- Yard was used to cor- 
 rupt the election in the interest of contestant, the minority report (approved on 
 this point by a majority of the members of the committee) held that it was proved 
 that there was an increase of from 900 to 1,400 made in the navy-yard force pre- 
 vious to the election; "that such new employees were generally introduced by the 
 executive committee of contestant's party; that it was generally understood that 
 they would be expected to vote the Republican ticket. The giving and the accept- 
 ance of such employment upon the terms and conditions stated constitute bribery 
 in law. The-ojms of proving that such persons did not carry out in good faith the 
 agreement made rests upon the contestant." It was also shown that assessments 
 for political purposes were made on the employees; that they were furnished 
 Republican tickets, and closely watched to see how they voted, and that the force 
 was greatly reduced soon after the election. The members agreeing to this report 
 held that votes obtained by such methods ought not to be counted, and there 
 being no means furnished by the record to eliminate them, rejected the votes of 
 Jhe three precincts where tlie navy-yard vote was chiefly cast. On the whole 
 case, which involved other issues, the House sustained the minority. . 
 PUitt vs. Goode, Uth Cong Smith, 678, 659 
 
 Where it was charged that voters had been bribed by giving them work in a navy- 
 yard, but no attempt was made to prove that they had voted for contestee, or at all, 
 the committee laid down the following rules: 
 
 "1. If the giving of employment to the voters immediately prior to the election 
 was for the purpose of inducing them to vote for the contestee, and such object 
 was in any manner made known to the voter, and he accepted or continued in 
 such employment after obtaining such information, he thereby became a party to 
 the transaction, accepted its terms, and the onus of showing that he did not carry 
 it out in good faith is on the contestee. 
 
 "2. If it be shown that an elector enters into an agreement or understanding, 
 direct or indirect, for a consideration to vote a specified party ticket or for a par- 
 ticular candidate, it is fair to presume that he casts his ballot in accordance with 
 such agreement or understanding, and, unless the contrary is made to appear, such 
 presumption becomes conclusive. Ballots thus obtained we hold to be illegal and 
 ought to be disregarded." 
 
 Upon proof that an increase in the navy-yard force just before the election was 
 for political purposes, that such was the general report, and was discussed in the 
 newspapers at the time, and. that the new men were employed on the recommen- 
 dations of various prominent Republicans, the committee presumed that all men 
 so employed had voted illegally for contestee, and deducted from his vote a num- 
 ber corresponding to the increase in the navy-yard force. 
 
 Abbott vs. FroKt, 44th Cc/ng Smith, 604 
 
 Distribation of Government supplies to flood sufferers not bribery. 
 
 Where Government bacon sent for the relief of flood sufferers was distributed by a 
 United States deputy marshal to all comers and no questions asked, it was held 
 that its distribution could not possibly have constitutfed bribery. And where, in 
 another town, it was shown that a rumor was prevalent among the negroes that it 
 was necessary to vote the Republican ticket in order to be entitled to bacon and 
 that the Republican leaders made no attempt to deny or suppress the rumor, their 
 conduct was severely condemned; but as the definite proof only showed that 10 or 
 12 persons had voted who otherwise would not, and as the increase of 300 over the 
 vote of two years before was the outside limit of those who could have been 
 influenced, and this number, if deducted, would have been insufficient to change 
 the result, the committee made no ruling on the propriety of deducting any votes. 
 Bromherg vs. Haralson, 44th Cong Smith, 361-363 
 
 Appointment as TTnited States depnty marshals not bribery. 
 
 The appointment of persons- as United States deputy marshals is not bribery unless 
 it be shown that they were thereby influenced to vote differently from what they 
 otherwise would have done. 
 
 Frost vs. Metcalfe, 45th Cong I Ells., 293 
 
648 DIGEST OF CONTESTED ELECTION CASES. 
 
 Mere paying of poll tax not in itself bribery. 
 
 The mere furaishing and accepting of a poll-tax receipt paid for by a party commit- 
 tee is not a corrupt act or proof of bribery. 
 
 "It must appear that such payment of a tax by another than the voter and 
 delivery to him of the receipt therefor was done as an inducement or consideration 
 for the vote or for the purpose of influencing the choice of the voter." 
 
 Patterson vs. CarmacJc, 65th Cong Report 895, p. 26 
 
 Expenditure of money by party committee for balls, carriages, etc., not fatal, even if 
 prohibited by statute. 
 
 Where it was shown that part of the money contributed by contestee to the commit- 
 tees of his party was used in conveying voters to the polls who were neither "sick, 
 poor, or infirm," and in paying the expenses of public meetings and speakers, 
 neither of which purposes was included in the language of the statute of New 
 York defining the purposes for which money might be expended, the committee 
 held that even if these expenses were construed to be prohibited by the statute it 
 could not affect the result. There was nothing to connect the contestee with the 
 expenditure of the money in these ways, and he could not be held responsible f orillegal 
 acts of his agents. ' ' That the contestee had the right to contribute and pay to these 
 committees money to be used by them for purposes authorized by the statute is not 
 controverted by the contestant, and in the absence of opposing proof the presump- 
 tion exists that he did not authorize its expenditure for purposes prohibited by the 
 statute. If the statute was violated, its offenders are by the provisions of the statu^ 
 subject to punishment." And certainly the votes of legal voters who may have 
 attended meetings in halls paid for by party committees, or gone to the polls in 
 carriages provided by party committees, even if they were able to walk or pay for 
 their own rides, are not on that account to be rejected without reference to whether 
 their votes were influenced or not. 
 Puffy vs. Mason, 48th Cong ..I Ells., 368 
 
 Evidence op. 
 Bemote inference insufficient. 
 
 Where it was charged that the patronage of the Norfolk Navy- Yard was used to cor- 
 rupt the election in the interest of contestant, the majority report (approved on 
 this point by only a minority of the committee) held that while it was proved that 
 assessments were levied on the employees for campaign purposes, and that the 
 force had been largely^ increased previous to the election, the assessment could not 
 affect the result; the increase was less than during the preceding autumn, when 
 there had been no election; some Democrats had be^n employed, and employees 
 had voted for contestee without losing their places; though most of the employees 
 were Republicans it was in accordance with the general custom in all departments 
 of the public service; the presumption was that these employees were Republicans 
 already and Ihe employment had not changed their votes. There being no proof 
 that the employment was given for the purpose of changing votes, and no proof 
 that the employees had voted for contestant, or at all, the charge of bribery was 
 not sustained. On the whole case, which involved other issues, the House agreed 
 with the minority. 
 Piatt vs. Goode, 44th Cong Smith, 657 
 
 Mast be specifically proved. 
 
 The burden is upon the party charging bribery to prove that the voter was bribed by 
 the opposing candidate or his agent, that he voted, and that he voted for the can- 
 didate bribing him. 
 
 Abbott vs. Frost {minority report), 44th Cong Smith, 629 
 
 Where it was proved that two persons were given money for peddling tickets, by a 
 person in regard to whom a witness testified, that it was common report that he 
 was distributing money to secure the election of contestee by corrupt means, the 
 evidence was held to be insufficient to sustain the charge of bribery. 
 
 Cox vs. Strait, 44th Cong Smith, 436 
 
 As to the amount of evidence necessary to establish bribery, see also: 
 
 Kidd vs. Slei'/i', 49th Cong , Mobley, 514 
 
BEIBEBY. 649 
 
 Must generally be proved by eiroumstantial evidence. 
 
 " In a great majority of cases it is impossible to prove a charge of bribery by direct 
 and positive evidence. From the very nature of the case the only sources from 
 which such testimony can come is from the briber and the bribed, both of whom are 
 criminals. ' ' But circumstantial evidence, especially when strengthened by declara- 
 tions of confederates, may be so strong as to exclude all other reasonable theories 
 than that of guilt. 
 Abbott \n. Frost, 44th Cong Smith, 606 
 
 When some cases proved, existence of others may be presumed. 
 
 "It must not be forgotten that bribery is a secret crime; both the parties to it are 
 equally interested in keeping it secret, and when detected both are ready to give 
 ingenious explanations of it. If they have acknowledged to third parties the receipt 
 of the bribe, they are ready to declare, when called to the witness stand, that they 
 were in favor of the bribe giver before the money was offered, or that they voted 
 for his opponent, or that the money was paid by someone else, some nameless party, 
 for some other purpose. Under these circumstances, when it is shown that in an 
 election over 300 cases of bribeiy and attempted bribery are proven, the presump- 
 tion is not violent that for every case that was, by accident or the indiscretion of 
 the parties, brought to the light, there were others that were never revealed. ' ' 
 Donnelly vs. Washburn {majority report), 46th Cong I Ells., 453 
 
 "General evidence," approaching hearsay, admissable to prove "general bribery," 
 
 "General bribery" is proved in the same way as general character, by the general 
 statements of persons and general reputation. Evidence -^hich would be hearsay 
 to prove particular cases is competent to proye general bribery. 
 
 Hard vs. Romeis {minority report), 49th Cong Moble}', 438 
 
 Proved by circumstantial evidence. 
 
 Where (in New York under the Australian-ballot system) a name was scratched on 
 16 ballots, and the fictitious names "A. Doyle," "B. Doyle," "C. Doyle," etc., 
 substituted, all in the handwriting of a party worker in regard to whom there was 
 evidence indicating that he had bribed 1 vote, two members of the committee 
 held that the 16 votes should be thrown out as bribed. Their conclusion was sus- 
 tained by the House. 
 
 The committee refused to reject them, on the«ground that there was only one 
 very doubtful unsigned deposition against one of them and no testimony at all 
 in regard to the others. 
 
 Noyes vs. Rockwell, 6Sd Cong Stofer, 31-85; 43 
 
 Effect of. 
 Bribed votes rejected. 
 
 "Where a voter is shown to have been bribed by a candidate, or by a duly author- 
 ized agent, to vote for him, and he has so voted, such vote ought to be struck 
 from the ballots cast for such candidate." 
 Abbott vs. Frost {minority report), 44th Cong Smith, 628 
 
 Where voters were proved to have been bribed to vote for contestee, their votes 
 were excluded. 
 
 Bowen vs. Buchanan, 51st Cong Rowell, 196 
 
 A bribed vote not void unless made so by law. 
 
 Under the laws of Ohio, in which there is no provision to make void a bribed vote, 
 and whose general policy is to punish the briber and not the bribed, there is no 
 authority to reject a bribed vote. 
 Delano vs. Morgan {minority report), 40th Cong 2 Bart, 203 
 
 If committed without knowledge of the candidate, immaterial unless result affected, 
 
 ' ' A candidate can not and ought not to be held responsible for all the imprudent and 
 censurable acts of indiscreet friends, who, in the zealous advocacy of his election, 
 resort to improper means of securing that result without his knowledge, and 
 which he, if consulted, would condemn, unless the voters affected by such means 
 are sufficient in number to change or render uncertain the result of the election." 
 Duffy vs. Mason, 46lh Cong .' I Ells., 375 
 
65U DIGEST OS' CONTESTED EI.ECTION CASES. 
 
 Mast be shown to have affected the result. 
 
 Fraud or liribery does not vitiate what it does not impregnate. Votes obtained by 
 bribery should be rejected; if a precinct be so corrupted by bribery that it is 
 impossible to purge the result, it may be rejected, but the untainted precincts are 
 not affected. If bribery were proved against the sitting member, it might have 
 been a ground for expulsion, but not for declaring the election void. 
 
 Donnelly vs. WnMum [minority report), 46th Cong 1 Ells., 490-495 
 
 Where contestant charged that an increase in the navy-yard force was in the nature 
 of bribery, the minority held that contestant was bound to show that in conse- 
 quence of the increased force he lost votes which he otherwise would have received, 
 or that the contestee received votes which he otherwise would not have received. 
 Abbott vs. Frost {minority report), 44th Cong Smith, 630 
 
 Effect of, when committed by contestee personally. . 
 
 Where it was charged that the sitting member had procured the abandonment of a 
 a contest by the payment and promise of money, and the committee found the 
 charge sustained, but that the proposition was made by contestant, and the pay- 
 ment made to escape the inconvenience of a contest, and not for the purpose of 
 corruptly securing a seat in Congress, and that the contest would in any case have 
 been decided in favor of the sitting member, the testimony showing his election 
 by a larger majority than the returned majority, the committee expressed its dis- 
 approval of the acts both of sitting member and contestant, but recommended no 
 action and asked to be discharged from further consideration. 
 
 Bradley vs. Hynes, 43d Cong Smith, 240 
 
 Effect of, when committed by contestant personally. 
 
 Where counsel for contestee had been bribed by contestant to act for him, and to 
 refuse to surrender testimony in his possession, part of the committee were of the 
 opinion that the act of contestant "which would furnish ground for the expulsion 
 of the contestant, if he were a member, would justify a refusal to permit him to 
 proceed with the contest." 
 Bowen vs. De Large, 4^d Cong Smith, 99 
 
 Committed by a snccessfnl candidate should invalidate his election. 
 
 "The law ought to be held as 'ollows: Where the friends of a successful candidate, 
 without collusion or combination with such candidate, engage in fraud, bribery, 
 intimidation, or other violations of law to influence the election, and the number 
 of votes affected thereby is insufficient to change the result, the election will not 
 be invalidated thereby; but if such candidate takes part in such wrongs, or confed- 
 erates with those engaged therein, and it does not appear that the election has 
 been changed in its results thereby, the election should be held void and a new 
 election ordered. * * * In order to give the seat to the contestant it should 
 be necessary to prove that the results were changed by the transactions in question, 
 but to unseat the participant a less amount of proof should be sufficient." 
 Hill vs. Catchings {views of Mr. La^ey) , 51st Cong Rowell, 811 
 
 Committed by contestee or his agent renders election void. 
 " It is a clearly established principle of law, both in England and the United States, 
 ■ that bribery committed by the sitting member, or ' by any agent of the sitting mem- 
 ber, with or without the knowledge or direction of his principle [sic], renders the 
 election void.' " 
 
 Donelly vs. Washburn {majority report), 46th Cong I Ells., 453 
 
 Committed by contestee a cause for expulsion, but not for vacating the election, unless 
 result affected. 
 
 The English rule that bribery committed by a candidate vacates his seat, even though 
 the result of the election was not affected by the bribery, can have no application 
 to this country. The English rule depends on the English statute, by which a 
 candidate committing bribery is disqualified from holding office by virtue of the 
 election at which the offense was committed. Such is not the rule of the common 
 law, and there is no such statute in this country. The House, by a two-thirds 
 
BRIBERY. 651 
 
 vote, may expel a member for bribery or any other cause, but in a contested-election 
 case the sole question is. Which candidate received the majority of legal votes, 
 legally cast and returned, and whether he possesses the qualifications prescribed 
 by the Constitution? 
 
 DoneUy vs. Washburn, (minorily report), 46th Gong I Ells., 491 
 
 Bribery to secure nomination is immaterial. 
 
 T&timony intended to show that a candidate secured his party nomination by 
 bribery or other unworthy means ought not to be considered in a contested-election 
 case. 
 
 Lov/ry vs. While, SOlh Cong Mobley, 624 
 
 Election controlled by bribery void. 
 Where the result of an election is obtained by bribery it is null and void. 
 
 Page vs. Pirce, 49th Cong _. Mobley, 491 
 
 Where there was a general conspiracy to bribe, whole polls rejected. 
 
 Where there was a conspiracy to bribe, the committee said: "Contestee insists that 
 he should only lose those votes where' individual instances of bribery are shown. 
 We cannot accept this theory of the law when the evidence shows the existence of 
 a conspiracy to corrupt voters by bribery." Either all the votes, or all the votes 
 for contestee, in the polls where bribery was shown in his interest, should be 
 rejected. The committee did not decide between these two courses. 
 
 Mitchell vs. Walsh, 64th Cong Report 1849 
 
 Bribed votes deducted from vote of candidate for whom cast. 
 
 Two votes held to have been obtained by bribery were deducted from the vote of 
 contestee. 
 
 Nnyes vs. Rockwell, 6Sd Cong Stofer, 35 
 
 Only bribed votes deducted. 
 
 Where $11 or $12 was expended for bribes at one precinct, and not more than 20 
 votes, probably less, were affected, the committee refused to reject the jjoU, but 
 ■provisionally deducted 20 votes from the vote of contestee. 
 
 Watson vs. Black, 63d Cong Report, 1147, p. 7 
 
 Only bribed votes rejected. 
 
 Where one of the judges of election bribed 25 voters to vote for contestee, the (com- 
 mittee deducted these votes, but refused to reject the return. 
 
 Robinson vs. Harrison, 54th Cong ...Report 1121, p. 2 
 
 BRITISH PENSIONER. 
 
 Eligibility of, as Representative. See Qualifications of Representatives. 
 
 BURDEN OF PROOF. 
 
 On contestant, even to the proof of a negative. 
 
 "The distinction between the controversy at the polls and that before the commit- 
 tee is manifest. At the polls the voter is a party. When the polls are closed and 
 an election is made, the right of the party elected is complete. He is entitled to the 
 returns, and when he is admitted to his seat there is no known principle by which 
 he can be ejected except upon the affirmative proof of a defect in his title. Who- 
 ever ^eeks to oust him must accomplish it by proving a case. The difficulties in his 
 path can form no possible reason why the committee should meet him half way. 
 The rule of reason requires that he should fully make gut his case, even though it 
 involve the proof of a negative." 
 
 New Jersey case, ^6th Cong '. I Bart., 26 
 
652 » DIGEST OF CONTESTED ELECTION CASES. 
 
 On contestant to show that county returns improperly rejected. 
 
 Wheic tlie seat had been given to the sitting member by the action of the State 
 canvassing board in rejecting the vote of a number of precincts and counties, and of 
 the House in deciding the governor's certificate prima /acie evidence of the riglit 
 to the seat, the committee, in examining into the merits of the case, presumed that 
 the rejections in each case were proper until the contrary was proved. 
 
 Giddings vs. Clark, 4Sd Cong Smith, 94 
 
 On contestant. 
 
 The returned member is presumed to have been duly elected. This presumption 
 should be maintained unless repelled by conclusive evidence. 
 
 Bisbee vs. Finley {minority report), 47th Cong 2 Ells., 203 
 
 On party attacking returns. 
 
 "The burden of proof is always upon the contestant or the party attacking the oflficial 
 returns. The presumption is that the ofBcers charged by law with the duty of 
 ascertaining and declaring the result have discharged that duty faithfully." 
 
 Bromberg vs. Haralson, 44ih Cong Smith, 357 
 
 On each party to show that voters voted illegally for opposing candidate. 
 
 The burden is upon the party attacking the legality of a vote to prove that the per- 
 son whose vote is in question voted, that the vote was for the competitor, and that 
 the voter was lacking in some legal qualification. 
 
 Cessna vs. Myers, 4^d Cong Smith, 61 
 
 Ought not to he on contestant any more than on contestee. 
 
 It would be preferable to regard both parties as standing on an equal footing, rather 
 than to give to the returned member superior advantages. Then, if it is impossible 
 to decide between their rights, a new election should be ordered. 
 
 Vallandighani ya. Campbell [Mr. Harris), 36th Cong Report 380, p. 29. 
 
 Allegations involving charge of crime must he established beyond a reasonable doubt. 
 
 When a contestant makes a charge of incorrectness of returns, which involves a direct 
 charge of crime against the election officers, he would in strict ^aw be required to 
 establish the charge by the same degree of proof required in a criminal case. 
 Butler vs. Lehman [minority report, sustained by House), 37th Cong I Bart., 360 
 
 Shifts to contestee when contestant shown to be elected on the face of the returns. 
 
 When the certifica,te of contestee did not show on its face that he had received a 
 majority of all the votes, and the House Refused to give the seat to either party 
 until the case could be decided on its merits, and it appeared that the petitioner 
 had a majority of votes on the face of the returns, the burden of proof was held to 
 be with the opposing party. 
 
 Letcher vs. Moore, S3d Cong C. and H., 814 
 
 Where the contestant had the majority on the face of the returns, and the contestee 
 holds the seat only by virtue of the unlawful act of a ministerial officer in throwing 
 out the vote of a county, the burden of proof is on contestee. 
 Shields vs. Van Horn {minority report), 41st Cong .^ .1 Bart., 932 
 
 Where the contestant is shown to have been elected on the face of the returns, the 
 burden is on the sitting member to show by other evidence that he was himself 
 elected. 
 
 Garrison vs. Mayo, 48th Cong ; ilobley, 56 
 
 When it is conceded that the counting for contestant of a number of votes which 
 should have been counted for him would change the result, the onus is cast on con- 
 testee, and nunc pro tunc the contestant is assigned his true position. 
 
 Il'dlhtir vs. McKiidey, 4Sth Cong Mobley, 186 
 
BURDEN OF PEOOF. 653 
 
 Where sufficient evidence is introduced to impeach the integrity of the ballot box, 
 the burden of proof shifts to the contestee. 
 McDuffie vs. Davidson, 50th Cong Mobley, 596 
 
 Where it was shown that the contestant had received a majority on the face of the 
 returns, the committee held that "Such being the case, the contestant isnow to 
 ■ batreated as if he had received the certificate, and the onus is cast on the con- 
 testee to show that th.e returns, if truly made, would elect him. (Wallace vs. 
 McKinley, Forty-eighth Congress.)" . .. 
 
 Smith vs. Jackson, Slsl Cong Rowell, 20 
 
 Contestant being shown to have been elected on the face of the returns, the burden 
 shifts, and it devolves upon contestee to establish his right to the seat which he 
 occupies by affirmative evidence. 
 Atkinson vs. Pendleton, 51st Cong Rowell, 55 
 
 When it is shown that the contestant was elected on the face of the returns, the 
 burden is cast upon the contestee to overcome the prima facie right which the 
 returns give to the contestant. 
 McGinnis vs. Alderson, 51st Cong Rowell, 635 
 
 Contestant received the majority of votes according to the numbers written on the 
 face of the returns, but the county canvassers in one county counted the numbers 
 written across the sample ballots on the back of the returns instead, which gave 
 the majority to contestee. The supreme court of New York, in special session, 
 ordered the votes counted according to the face of the returns, but pending appeal 
 from this decision the certificate was issued to contestee. The supreme court and 
 the court of appeals afterwards sustained the decision. The committee held, on 
 these facts, that contestant was prima /ade elected, and the burden of proof shifted 
 to contestee. 
 Noyes vs. Rockwell, 5Sd Cong Stofer, 28 
 
 Not necessarily on contestee when contestant apparently elected on face of returns. 
 
 " It is erroneous to assume that the burden shifts from the contestant to the contestee 
 
 by proving one item of his claim, which alone considered might change the result." 
 
 Wallace vs. McKinley [minority report) , 48th Cong Mobley, 192 
 
 Upon party attacking the votes, but may be shifted by agreement to follow State law 
 to the contrary. 
 
 The committee held that votes received by the election officers were prima facie 
 good, but where the parties had not only taken testimony upon the assumption 
 that the burden of showing the legality of a vote attacked lay upon the party claim- 
 ing the vote, but had entered into written stipulations admitting that all votes 
 contained in the charges of both parties were bad, but reserving the right in two 
 counties to prove votes good, the committee provisionally rejected all the votes 
 admitted, and then restored all the votes whose legality was proved, whether in 
 the two stipulated counties or not, and caused the parties to procure further testi- 
 mony on the subject. But where an agreed state of facts was presented, the com- 
 mittee counted or rejected the votes upon the facts thus stipulated, without other 
 evidence. 
 Draper ya. Johnston, 22d Cong C. & H., 706, 707 
 
 "Every voter admitted by the regular officers authorized to decide the question at 
 the polls ought to be considered legally qualified, unless the contrary is shown." 
 But in a particular case, where the State law required each candidate to establish 
 the legality of votes attacked by his opponent, and the parties had taken testi- 
 mony upon this assumption, and had taken no testimony at all in regard to votes 
 known to be illegal, the committee were from necessity forced to proceed upon the 
 assumption on which the testimony was taken. 
 Botts vs. Jones, S8th Cong I Bart, 74 
 
654 DIGEST OF CONTESTED ELECTION CASES. 
 
 Burden to show that election officers not sworn may be shifted if oath not properly 
 filed- 
 
 "The legal presumption is that the oath required has been taken, every officer being 
 presumed to have done his duty, and * * * the onm is thrown upon the party 
 taking the objection to show the neglect or omission; but as the law of Virginia 
 requires that the oath shall be duly returned by the magistrate b(-fore whom it is 
 taken and fllsd in the clerk's office, a certificattvfrom the clerk that no t^uch oath is 
 filed will be sufficient priiaii facie (notice of the objections being previously served 
 upon the opposite party) to throw the burden of proof upon the narty claiming the 
 vote." 
 Draper vfi. Julvmloii, .iSd t'uiuj C. & H.. 712 
 
 Where election affidavits not filed, burden on party claiming they were made to show 
 this fact. 
 
 Where election affidavits required (in Pennsylvania) to be made by nonregistered 
 voters were not found on file in the prothonotary's office, where the law required 
 them to be filed, the committee held that certificate of this fact "is sufficient proof 
 to raise the prima facie conclusion that they were never taken." "We insist that 
 the presumption is that if these affidavits had been executed they would have 
 been found where the law provides they should be filed and that on failure of the 
 officer to produce them the burden of proof was cast on the contestee to show that 
 they were in fact executed. ' ' 
 
 Craig vs. Stewart, 5Sd Cong ^. Stofer, 9 
 
 The minority held that the presumption was in favor of the validity of the ballots 
 after they had been accepted by the election officers, especially as these officers 
 were required by law to challenge unregistered voters, and that the failure to find 
 some of these affidavits, at a subsequent date, in the prothonotary's office did not 
 remove the burden from contestant to show that they were not in fact made. 
 Craig vs. Steivart {minority report), 52d Cong Stofer, 17 
 
 Where oath of election officers not returned as required by law, the burden is on party 
 sustaining the returns to show it was taken. 
 
 Where the law provided that a certificate of the taking of the oath should be returned 
 
 with the votes, and there was no such certificate as showed that the oath was taken, 
 
 and contestant charged that it was not, the committee held that the burden of 
 
 proof was on contestee to show that it was. 
 
 Blair vs. Barrett, S6th Cong I Bart., 314 
 
 To show that foreign-born voters had not been naturalized. 
 
 Where it was proved that votes were cast by foreign-born persons, the majority of 
 
 the committee held that the burden was on the party attacking the vote to show 
 
 that the voter had never been naturalized. The minority held that on proof of 
 
 foreign birth, the burden of proof to show naturalization shifted to the other party. 
 
 New Jersey Case, S6th Cong I Bart., 24, 31 
 
 Burden to show that result of election changed by illegal voting, on contestant. 
 
 When contestant has shown prima fade a number of illegal votes cast which if cast 
 for contestee would wipe out his majority, the burden does not shift to contestee 
 to show that they were not cast for him, but remains with contestant. 
 
 Vurtii) vs. Yocum {minoritg report adopted by the House), 46th Cong 1 Ells., 422 
 
 Where county canvass illegal, burden on contestee to' show correctness of precinct 
 returns if fraud charged. 
 
 Where the county canvassing board was not constituted as required bv law and the 
 contestant charged that the precinct returns were incorrect, the committee held 
 that the burden of proof was on the contestee to establish the correctness of the. 
 precinct returns by a recount of the ballots. 
 
 Donnelly vs. Washburn, 46th Cong I Ells. 466 
 
BURDEN OF PROOF. 655 
 
 On contestant to show precinct returns incorrect, even if county canvass illegal. 
 
 The contestant charged that certain precinct returns were illegal and illegally can- 
 vassed. Held, That the burden of attacking the validity of the precinct returns 
 would be on him, even if he successfully attacked the county canvas.-. 
 Donellij vs. WasKburrt {minority report), 46th Cong 1 Ells., 512 
 
 May be easily shifted to contestee when all the officers of election were his partisans. 
 
 " When the whole of the election machinery was in the hands of contestee's friends, 
 the burden of showing the fairness of the count should be upon him when a rea- 
 sonable doubt of fairness has been established by the proof." (See Officers of 
 Election. ) 
 
 Buchanan vs. Manning ( minority report ) , 4Tth Cong 2 Ells. , 306 
 
 CAMPAIGN FUND (see also Bribery). 
 
 Excessive expenditure not conclusive of wrong. - 
 When contestee had expended $9,500 in the canvass, but accounted for all the various 
 sums so spent compatible with his innocence, and there was testimony that such 
 expenditures were "rather in conformity to the custom as practiced in Luzerne 
 County," the committee refused to disturb the result. 
 
 Reynolds vs. Shonk, 5Sd Cong Stofer, 50 
 
 CANVASSING BOARD. 
 
 Returns rejected by, counted by committee. [See Irregularity in canvass. ) 
 Are ministerial officers. [See Ministerial officers. ) 
 
 CENSUS. 
 
 As Evidence. 
 
 & city census prima facie evidence of the facts contained in it. 
 Where a city census contained information as to age, birth, naturalization, length of 
 residence, etc., the committee held that it was prima fade evidence of the facts it 
 contained, and rejected the votes of persons shown by it not to be qualified voters. 
 
 Blair ys. Barrett, 36th Cong 1 Bart, 316' 
 
 Not evidence of facts not legally required to be contained in it. 
 The minority- held that facts in regard to the qualifications of voters not required to 
 be ascertained by the ordinance providing for the census were not proved by the 
 introduction of the census returns. If the census were evidence, it would be neces- 
 sary to prove by outaide evidence the identity of the voters with the persons named 
 in it. 
 
 Blair vs. Barrett [minority report), 36th Cong Rept. No. 563, 1st sess., 36th 
 
 Cong., p. 41. 
 
 Charges of intimidation rebutted by the census. 
 When it was alleged that at least 2,000 voters had been prevented from voting in a 
 district by intimidation, but the testimony was indefinite, and by comparing the 
 number of votes cast with the number of males over 21 in the district, as shown 
 by the census of 1870 taken the year before, it appeared that an unusually large 
 per cent (88) had voted This was held to show that extensive and suc{«ssful 
 intimidation could not have existed. "If the proof of intimidation were much 
 stronger and more conclusive than it is, it could not stand in the face of these 
 statistics." 
 Norris vs. Handley, 4^d Cong Smith, 77 
 
 To rebut inferences of fraud. 
 Where it was argued from the size of the Republican vote that illegal votes nmst have 
 been cast, the committee said, "It may be safely inferred that each race voted 
 about equally solid for the candidate of its own color and blood," and compared 
 
656 DIGEST or CONTESTED ELECTION CASES. 
 
 the Republican vote with the colored population and the Democratic vote with the 
 white population, as shown by the census of 1870. The comparison showed that 
 a slightly smaller proportion of the colored vote than of the white was cast, and this 
 was taken, among other things, as indicating that the evidence of illegal voting 
 and repeating by colored voters could not have been true. 
 Bromherc) vs. Haralson, 44th Cong Smith, 360 
 
 As evidence of fullness of vote. 
 Where there were disturbances and collisions between white and colored persons the 
 night before the election and at the polls, but there was no definite testimony that 
 anyone was deterred from voting, the committee compared the vote with the num- 
 ber of males over 21, as shown by the census of 1870 just taken, and it appearing 
 from this comparison that a very full vote was cast concluded that many persons 
 could not have been intimidated and refused to reject the votes. 
 
 Niblach vs. Walk, 4Sd Cong Smith, 105, 106 
 
 Too many votes cast not evidence of fraud. 
 Where the census of 1870 gave the population of a county as 3,831, and in 1872 2,183 
 votes were cast, the committee held that this was not suflScient proof of fraud, and 
 the minority only "invited attention" to it as "strongly indicating fraud." 
 
 Game vs. Hodges, 43d Cong Smith, 300, 322 
 
 Too many votes cast not conclusive of fraud. 
 Where it was shown that a, large number of colored voters had removed from a 
 county between 1870 and 1874, and that the vote for contestee in 1874 was a sus- 
 piciously large percentage of the colored population of 1870 after deducting for 
 emigration, the committee said: "At most it can only raise an inference, and a 
 weak one, that there may have been nonresident votes cast." 
 
 Bromberg vs. Haralson, 44th Cong Smith, 366 
 
 As corroborative evidence of fraud. 
 Where the returns showed more votes cast than, according to the census taken the 
 same year, there were males over 21 in the county, and contestee, whom the testi- 
 mony showed to have received few or no colored votes, was returned as receiving 
 twice as many votes as there were white voters, the committee called attention to 
 these facts as corroborative of the other evidence of fraud. 
 Smalls vs. Tillman, 47th Cong 2 Ells., 435, 462, 464, 476 
 
 Not evidence of the political division of the vote. 
 The mere fact that the Republican candidate is returned as receiving less than the 
 colored vote and the Democratic candidate more than the white vote, as sliown by 
 the census, is not sufficient ground for rejecting a return. 
 
 Strobach vs. Herbert, 47th Cong 2 Ells., 7 
 
 CERTIFICATE. 
 
 To Documentary Evidence. See Evidence, documentaky. 
 
 CERTIFICATE OF ELECTION. 
 
 See Credentials and Prima f.vcie rigut. 
 
 CITIZENSHIP (see also Mexican Citizens; Naturalization). 
 
 Not abandoned by foreign residence. 
 Duth sent to Europe for his educal 
 itil after the war, held not to have : 
 Ramsay vs. Smith, 1st Cong C. and H. 23 
 
 A youth sent to Europe for his education before the Revolution, and not returning 
 until after the war, held not to have forfeited his citizenship. 
 
CITIZENSHIP. 657 
 
 Leaning in favor of claimant. 
 In questions of citizenship the leaning should always be in favor of the claimant. 
 Levy's case, S7th Cong 1 Bart., 41 
 
 Original status of alienage presumed to continue. 
 The original status of- a foreign-born person is presumed to continue until the con- 
 trary is shown. 
 
 Loiirry vs. White, 50th Cong Mobley, 625 
 
 Difference between citizen and inhabitant. {See Inhabitant. ) 
 
 COliOIITTEE ON ELECTIONS (see also House of Bepreseutatives). 
 
 Precedents of. 
 
 A continuing body; shonld follow its own precedents. 
 "The Committee on Elections is as much a continuing body in contemplation of law 
 as a court, and should have as much respect for its own rulings as a court has for 
 . its decisions, and ' stare decisis' should be our rule." 
 
 Lynch vs. Chalmers {minority report), 47th Cong 2 Ells. , 377 
 
 A well-considered precedent, having become the settled law, ought not to be over- 
 turned except for the most cogent reasons. 
 
 Cannon vs. Campbell { Mr. Atherton ) , 47th Cong 2 Ells. , 653 
 
 Powers of. 
 
 Report by less than a majority. 
 Where a report was ordered submitted by a vote in committee of a majority of a 
 quorum, but the report, when presented, was signed by less than a majority of the 
 whole committee, objection was made in the House to its reception, but the House 
 voted leave to the signers to print it, and it was printed in the usual form of a 
 committee report. The report of the remainder of the committee, presented later, 
 was presented as the "views of the majority." 
 Brown vs. Swanson, 55th Cong. 
 
 Committee report can not be amended by the House. 
 Where the author of the report, when the case was called up in the House, moved 
 to strike one item from the report, the point of order was made and sustained that 
 a committee report can not be amended by the House. 
 
 Pearson vs. Crawford, 56th Cong. 
 
 Can act only on the evidence submitted. 
 "The committee can only report cases on the evidence furnished by the parties. 
 We can neither make the evidence, nor improve the quality, nor supply the defi- 
 ciency of that furnished us." 
 
 Goode vs. Epes, 5Sd Cong Report 1952, p. 11 
 
 Jurisdiction op. 
 
 A special resolution of reference confers only limited jurisdiction. 
 Where one election had been held in October and another in November, and the 
 person receiving the majority at the October election had received the certificate 
 of election and held the seat, and the candidate receiving the majority of the votes 
 at the November election petitioned for the seat, claiming that the November elec- 
 tion had been held at the legal time, but did not in his petition mention any other 
 election, or ask that the election of any other person be inquired into, and the 
 petition was referred to the Committee on Elections, the committee held that this 
 reference only conferred a limited jurisdiction to examine into the questions raised 
 by the petition, and not a general jurisdiction to inquire into the election of any 
 member. 
 
 Holmes and Wilson, 46th Cong 1 Ells., 322 
 
 H. Doc. 510 42 
 
65s DIGEST OF CONTESTED ELECTION CASES. 
 
 Will not in an ordinary contest investigate charges of personal unfitness. 
 After a memlier has been sworn in without reservation, and his case has been referred 
 to the Committee on Elections as an ordinary contested-election case, the committee 
 will consider no questions except whether he was duly elected, properly returned, 
 and possessed of all the qualifications prescribed by the Constitution. If it be 
 alleged that he is ineligible or not entitled to membership on account of other dis- 
 qualifications than those prescribed by the Constitution, it is a matter to be con- 
 sidered in proceedings looking toward expulsion, and beyond the jurisdiction of 
 the Committee on Elections except by special reference. 
 
 Maxwell vs. Cannon, 43d Cong Smith, 188 
 
 Except by special resolution, it has no jnrisdiction of qnestious of expulsion. 
 The Committee on Elections has jurisdiction only of cases involving the "elections, 
 qualifications, and returns" of members, and, unless by special reference, it has no 
 power to inquire into the fitness of a member for membership or to report a reso- 
 lution for expulsion. 
 
 DoneUy vs. Washburn {minority report), 4Sth Cong 1 Ells., 494 
 
 Ordinary jurisdiction does not include the right to investigate abated cases. 
 The ordinary resolution referring contested-election cases to the Committee on Elec- 
 tions can not revive a case already abated by the death of one of the parties. "An 
 order of reference places a paper before the committee for what it is worth. It 
 imparts no new legal character or quality to the paper." 
 
 Mackey vs. 0' Connor {minority report), 47th Cong .2 Ells.. 600 
 
 CONSPIRACY (see also Fraud). 
 
 Where registry fraudulent, as result of conspiracy, whole county thrown out. 
 The minority of the committee threw out the vote of a county on the ground that 
 the registration included the names of very many disqualified persons, and that it 
 was procured to be so fraudulently made as the result of a corrupt conspiracy. 
 The House sustained the minority. 
 
 iSwitzler vs. Dyer {minority report), 41st Cong 2 Bart., 792 
 
 Where conspiracy shown, fraud presumed from suspicious circumstances. 
 Where there was proof that a conspiracy was entered into to have a fraudulent elec- 
 tion, that the officers of election were willing to carry out the conspiracy, and the 
 circumstances and irregularities were such as to indicate fraud, the vote was thrown 
 out. The minority held the proof of fraud (which was hearsay and circumstan- 
 tial) to be insufficient. 
 
 Finley vs. Walls, 44th Cony Smith, 382-389, 401-406 
 
 A conspiracy covering a whole county shown. 
 
 Wliere, during tiie summer previous to the election, the county officials of a county 
 were violently deposed and forced to leave the State and their positions were filled 
 by members of the opposing party, the appointments of election judges made by 
 the county judge before his removal were illegally revoked and new boards 
 appointed, composed entirely of one party, in violation of law, the sheriff procured 
 and distributed to these election officers ballot boxes so constructed as to facilitate 
 fraud, and the county clerk refused to, certify the returns of certain precincts on 
 account of irregularities in the poll books, in spite of the statute forbidding him to 
 consider such irregularities, the committee held that these circumstances, among 
 others, constituted proof of a conspiracy to carry the election by fraudulent means. 
 Feaiherston vs. Cale, 61st Cong Eowell, 77-99 
 
 May be proved by circumstantial evidence. 
 "The difficulty of establishing, by legal evidence, the existence of a conspiracy, gen- 
 erally great, is increased rather than lessened by an intermingling of politics. That 
 this is so is apparent from the well-known fact that even where an entire commu- 
 nity is convinced to a moral certainty that gross frauds have been perpetrated in an 
 election, in the execution of a studied effort to defraud, a sufficient amount of legal 
 evidence to convict the suffrage assassins is rarely found, and usually enough of 
 such evidence can not be procured to indict them. " All text writers and other law 
 
CONSPIRACY. 659 
 
 authorities treating of the subject recognize the difficulty of proving a conspiracy 
 by direct evidence; and, as in tlie case of fraud in general, recognize also the pro- 
 priety, as well as the necessity, of proving distinct facts, many of them insignificant 
 in themselves, from all of which, however, when suffi<^ient, a firm belief in the 
 existence of the conspiracy or fraud may safely be deduced and the conclusion may 
 be as safely acted upon. In many cases circumstantial evidence is the only evi- 
 dence which can be obtained, and it is also not infrequently Of the most satisfac- 
 tory and convincing character." 
 
 Moore vs. Fanston, 53d Cong Report 1164, p. 2 
 
 Shown by circumstances. 
 Where the registration lists were stuffed, the law for nonpartisan appointments of 
 election officers was disregarded, the challengers of contestant's party excluded 
 from the polls, and wholesale repeating, fraud, and ballot-box stuffing practiced at 
 the election, these facts were taken together as showing conspiracy. 
 
 Van Horn vs. Tarsney, 54th Cong Report 355 
 
 Shown by a combination of circumstances. 
 The committee held that a conspiracy to control the election of one county by fraud 
 was shown by the organization of the election boards all in the interest of one 
 party, by the conduct of these election boards at the election, and the conduct of 
 the registration officers before the election. 
 
 Aldrich vs. Plowman, 55th Cong Report 284, p. 4 
 
 General bribery shown. 
 Where bribery was carried on in an organized manner, and was shown to have been 
 systematically planned and generally carried out and ■ understood, the committee 
 found that a conspiracy to commit general bribery was shown. 
 
 Mitchdl vs. Walsh, 54th Cong , Report 1 849 
 
 Taints the whole returns. 
 Where the fraudulent violation of the law was very general, the committee sum- 
 marized the varieties of fraud, and said that these facts "furnish conclusive evi- 
 dence of a conspiracy on the part of the election officers to defraud the voters, which 
 destroys the integrity of their acts and taints the returns so as to render them 
 wholly unreliable, and devolves upon the contestee the duty of proving what was 
 the true state of the poll." 
 
 Thorp vs. McKenney, 54th Cong Report 1531, p. 21 
 
 CONTEST. 
 
 Abandon.ment of. {Sec Abandonment.) 
 
 Dismissal o^' 
 
 for insufficiency of notice, see Notice of Contest; 
 for failure to appear or to take testimony, see Abandonment; 
 
 for failure to take testimony before proper officer, before wrong officer, Kfc Evidence; 
 for lack of time to investigate, see Mode of Procedure; 
 
 for failure of proof when application for time to take further testimony refused, see 
 Evidence, additional. 
 
 Pkocedure in. {See Mode op Pkocedube. ) 
 
 Statute Reculatinh. (.SW- Law.kor Taking Testimony.) 
 
 Who are parties to, when contestee dead and his successor .sworn in. (.*(■ Vacancy, 
 
 and House of Representatives. ) 
 Jurisdiction over. (See House of Representatives, Jurisdiction of, and Committee on 
 
 Elections, Jurisdiction of. ) 
 
 COUNSEL. 
 
 Hearing of, by House. (See Mode of Procedure. ) 
 
660 DIGEST OF CONTESTED ELECTION OASES. 
 
 COUNTY OOTJBT. 
 
 Power of, in West Virginia, to mako a record. {See Iilvidence, Documentary. ) 
 
 COURTS. 
 
 When decisions of State courts binding on the House. {See State Laws. ) 
 
 CBEDENTIAIiS (see also Prima Facie Kigbt). 
 
 Proof of facts, without certificate, received. 
 A member admitted to his seat without a governor's certificate, on proof of facts. 
 Richards, 4ih Cong C. and H., 95 
 
 Informal letter insufficient, 
 Two letters, one from a resigned member informing the Speaker of hislesignation 
 and the election of his successor, and the other from the clerk of the council of the 
 State to the member-elect, informing him that his certificate of election had been 
 forwarded to the Speaker, held not to be sufficient to enable the member to -take 
 his seat in advance of the arrival of the certificate. 
 
 Edwards, 3d Cong C. and H., 92 
 
 Not based on canvass of votes, give no prima facie title. 
 The effect of a governor's certificate as proof "rests upon the presumption that it is 
 the official declaration of an official canvass of the votes." A certificate conceded 
 tc have been issued before any canvass of the vote had been liad was not received 
 as evidence, either of a. prima fade title or in the case on the merits. 
 
 Sheridan vs. Pinchback, 4Sd Cong ^ Smith, 198 
 
 A certificate of election known to be based on the returns of a board which it was a 
 notorious fact of public history had never had possession of the returns, and hence 
 could not have canvassed them, was unanimously held to be of no effect. 
 Sheridan vs. Pinchback, 43d Cong Smith, 197, 227 
 
 Not based on legal evidence, of no effect. 
 If a certificate is based on anything else than the legal evidence, "or only upon a 
 portion of the data prescribed by law, it is without legal validity as regards the 
 election of a member of Congress; and this, wholly independently of the question 
 as to whether this is done fraudulently, ignorantly, or is a mere casus omisms. 
 The party relying upon such a certificate must prove his vote aliunde." 
 
 Smalts vs. Tillman, 47lh Cong 2 Ells., 432 
 
 In extraordinary cases certificate may not be conclusive. 
 "Except in extraordinary cases and in rare instances we find that the commission or 
 certificate concludes all inquiry as to which of the claimants of a seat shall occupy 
 it until the contest on the merits is determined. And every consideration of pru- 
 dence and safety admonishes us to adhere to this practice." But in a case where 
 contestee had declined to claim the seat on the certificate alone, and~the House 
 had referred all the papers of both parties to the Committee on E.ections, "with 
 instructions to report immediately whether upon the prima facie case as presented 
 by said papers said Manning or Chalmers is entitled to be sworn in as a member 
 pending the contest on the merits, " and on these papers it appeared that contestant 
 had a large majority of the votes as actually returned to the secretary of state, the 
 committee reported that neither party ought to hold the seat pending the investi- 
 gation. 
 
 Chalmers vs. Manning, 4Sth Cong Jlobley 8 
 
 Where certificate based on a partial canvass, and did not show on its face who received 
 a majority of the votes, neither party admitted. 
 The law of Kentucky required the sheriffs of the various counties of a Congressional 
 district to assemble at a specified time and place, " and there, by faithful compari- 
 son and addition, ascertain the person elected in their districts." They were then 
 
CREDENTIALS. 661 
 
 to make out a certificate of election "which shall be signed by all the sheriffa of 
 the district." A certificate was presented signed by only three of the five sheriffs, 
 and with the words "The vote of Lincoln County not taken into calculation" 
 written above tne signatures, and it was asserted in the House that if all the votes 
 had been counted a different candidate would have had the majority. The House 
 referred the case to the Committee on Elections and refused to admit either claim- 
 ant to the seat until the committee should have reported. 
 Letcher vs. Moore, ZSd Cong ., .'.C. and H., 715-747 
 
 Where based on partial canvass, no presumptions in favor of contestee. 
 "A certificate of election showing upon its face that nearly 8,000 votes were wholly 
 ignored in the count can have no binding force and effect in a contest of this char- 
 acter. * * * When his title is assailed in a direct proceeding by way of a con- 
 test, we think that a certificate showing the above facts gives the contestee no supe- 
 rior standing over the contestant as to burden of proof. For the purposes of the 
 contest a certificate which, on its face, shows that a large vote was wholly ignored, 
 and giving no data from which the true results could be ascertained, ought not to 
 be considered as binding upon anybody." 
 
 McOinnis vs. Alderson, 51st Cong Eowell, 634 
 
 Befnsal of governor to grant certificate does not prejudice rights. 
 The refusal of the governor to grant a certificate of election to one entitled to it can 
 not prejudice his right to it. It may put him to the trouble of substantiating the 
 fact of his election by other evidence before he can take his seat. 
 
 Clements, 37lh Cong 1 Bart., 367 
 
 Two certificates issued, candidate last certified admitted. 
 Where the governor first gave the certificate of election to the candidate having the 
 majority of the votes on the returns, but afterwards, alleging the discovery of 
 fraud, issued another certificate to the opposing candidate, the House admitted 
 the candidate having the second certificate to hold the seat pending the contest. 
 
 Morton vs. Daily, 37th Cong 1 Bart., 402 
 
 Certificate may be revoked and a new one issued. 
 The certifying authority may revoke a certificate and issue a new one. "The ques- 
 tion is entirely within the control of the State canvassers or the governor of the 
 State (as the case may be under the law) until the roll of the House is made up by 
 the Clerk. There is no vested right under a certificate that would prevent the 
 canvassers from rectifying any error or mistake that may have occurred in their 
 deliberations or action, until the holder of the same has been awarded his seat by 
 the Clerk of the House." 
 
 Hoge vs. Reed, 41st Cong 2 Bart., 541 
 
 Power to revoke a certificate limited (if it exists at all). 
 If it be conceded that any member of ^ canvassing board has the right to withdraw 
 his signature from a certificate once given, there must be a limit of time beyond 
 which that right can not be exercised. That limit is either reached on the day on 
 which the board, being required to adjourn, becomes /unctas officio, or on the date 
 (A the first subsequent official action based on^the former action. 
 
 Wallace vs. Simpson {minority report sinstained by House), 41st Cong . . .2 Bart., 562 
 
 Certificate of election can not be revoked. 
 The power to issue a certificate of election, "having been once exercised by the 
 proper officer, can not be again exercised by his successor." 
 
 Colorado case, 40th Cong 2 Bart., 165 
 
 Conflicting certificates presented. 
 Two conflicting certificates, dated the same day, and each bearing the signatures of 
 the required number of members of the canvassing board, were' presented, but one 
 of the members signing the first certificate subsequently withdrew his signature, 
 and the committee held that this invalidated this certificate and gave the prima 
 fade title to the holder of the other certificate. 
 
 Hoge vs. Eeed, 41st Cong 2 Bart, 540 
 
662 DIGEST OF CONTESTED EI.ECTION CASES. 
 
 Certificate of commanding general sufficient under reconstraction laws. 
 The commanding general in Louisiana acted properly under the reconstruction laws 
 in iiJMuing certificatea of election, and his certificates properly gave a pn'ma/acie title. 
 Junes \H. Maiin, 40th Conij 2 Bart. , 474 
 
 Minority candidate not elected, even tbongh certified. 
 Where nearly all the county returns were thrown out by the canvassing board for 
 alleged informalities which the committee found to be not even informalities, and 
 the certificate of election waa thus given to a candidate who received only a small 
 minority of the votes returned, the committee were unanimous in the opinion that 
 he was not elected. 
 
 Hunt VH. Menard, 40th Cong 2 Bart., 477^99 
 
 Candidate elected on face of returns entitled to be sworn in. 
 If a certificate certifies that a certain candidate was elected, and also certifies the facts 
 on which the conclusion is based, and these facts show that another candidate 
 received the majority, " the facts must stand, and the conclusions which the facts 
 contradict must fall." 
 
 Clnrk {mlnarity report), 4^'J Cong -. ."^mith, 13 
 
 Certificate of governor sufficient in absence of statute. 
 " In the absence of any express provisions of the State la w authorizing any officer to 
 certify to the due election of members of Congress, it is presumed that, under the 
 usages of the House, a certificate under the great seal of a State, signed Ijy its chief 
 executive ofiicer, would constitute suflScient credentials within the meaning of the 
 statute of 1867." 
 
 aar}c,4J'! Cong .Smith, 7 
 
 Where canvassing board bas judicial powers, its certificate conclusive of prima facie 
 right. 
 
 The Texas statute of 1870, in which judicial powers are given to the governor, secre- 
 tary of state,, and attorney-general to decide upon and reject votes under certain 
 circumstances, held to apply also to Congressional elections, and a certificate show- 
 ing that, after the deductions had been made by the State officers, W. T. Clark had 
 received a majority of the votes, held to be sufficient prima facie evidence of his 
 ri»ht to a seat, although the certificate showed upon its face that if the votes 
 rejected had been counted his opponent would have had the majority. 
 
 Clark, 4Sd Cong Smith, 7 
 
 In absence of statute, returns prevail over certificate. 
 The Texas election statute of 1870 held not to apply to Congressional elections and 
 that the governor had no power under it to certify who was elected, but merely to 
 certify the returns. If these returns show a majority for one candidate, and 'the 
 governor accompanies them by a certificate that the other candidate was elected, 
 the returns should prevail. 
 
 Clark (minority report) , 4Sd Cong Smith, 13 
 
 Party holding certificate entitled to be sworn in. 
 When one party appears to have had a certificate of election, and the other party 
 certified copies of the returns showing that he received a majority of the votes, 
 and the name of neither party was placed on the rolls by the clerk, but the cre- 
 dentials were referred to the Committee on Elections, the committee reported that 
 the party holding the certificate was entitled to the seat pending the contest. 
 
 Boles vs. Edwards, 4M Cong Smith 18 
 
 Where the governor of Texas issued a certificate to the contestee, but accompanied it 
 with a statement that he believed investigation would show that contestant was 
 elected, the committee reported that contestee had uprimafarie right to the seat. 
 
 WiUmore vs. Hemdon, 43d Cong (Not reported; see Congressional Globe 
 
 May 24, 1872.) 
 
CREDENTIALS. 663 
 
 The credentials presented consisted of a certificate from the governor containing no 
 statement that either candidate was elected, but certifying to the correctness of a 
 tabular abstract of votes showing a certain number of votes cast for each candidate, 
 and a number of scattering votes larger than the difference between the vote of the 
 candidates. The majority of the committee held that the certificate was sufficient 
 evidence of the right of the person having the largest number of votes accordinf; to 
 it to hold the seat pending the contest. The minority held that inasmuch as part 
 at least of the votes returned as scattering were evidently intended for the con- 
 testant, and for aught that appeared enough of them may have been so cast to give 
 him the majority, and as the contestant asserted, and presented testimony to 
 prove that such in fact was the case, the seat ought to remain vacant until the 
 case could be decided on the merits. The House sustained the majority. 
 
 Ounter vs. Wilshire, 43d Cong Smith, 1.30-143 
 
 A certificate of election issued by the governor of a Territory gives a prima facie right 
 to a seat as Delegate, and unless overthrown by competent evidence must stand. 
 Cannon vs. Campbell {Mr. Thompson), 47th Cong 2 Ells., 617 
 
 In determining the prim,a facie right to a seat the committee can not go behind the 
 face of the certificate. 
 
 Chalmers vs. Manning {views of Mr. Cook), 4Sth Cong Mobley, 22 
 
 Certificate issued in obedience to writ of mandamus valid. 
 A certificate of election made in obedience to a writ of mandamus has the same legal 
 force as in any other case. 
 
 Bisbeevs. Hull, 46th Cong 1 Ells., 317 
 
 DEAF AND DUMB. 
 
 Their votes received at a viva voce election. {See Election Viva Voce. ) 
 
 DECEPTION (see also Ballots, Wrong Emblem, and Wrong Name in Party- 
 Column). 
 
 Must be specifically proved. 
 Where contestant charged thata large number of voters intending to vote for him were 
 deceived into voting for his opponent by the circulation of tickets headed " Repub- 
 lican ticket," but bearing the names of the Democratic candidates, and the evidence 
 presented was insufficient to establish the charge, and especially to show the num- 
 ber of votes affected, the way in which the proof should have been made was 
 thus described: " He should have proven the number of votes cast, and for whom 
 cast, by the returns or a certified copy thereof. He should have shown the names 
 of the persons who voted by the poll list, and he should have called the voters 
 themselves, or some of them, to prove how many and who intended to vote for 
 him, and were defrauded by being furnished a ticket resembling the Republican 
 ticket, but containing the name of the sitting member as a candidate for Congress." 
 
 Norris vs. Handley, 4^d Cong Smith, 75 
 
 Votes procured by deception ougbt not to be counted. 
 Where the original count showed that contestee had substantially his full party 
 strength, and a recount showed a difference of over 1,000 votes in five precincts, 
 and the difference was claimed to be accounted for by the fact that tickets pur- 
 porting to be straight Republican tickets, but containing the name of contestant, 
 were circulated and voted without the knowledge of the voters, the minority held 
 that even if the evidence had estabhshed conclusively the correctness of the recount, 
 it ought not to be received to give contestant the seat, "because it is clear 
 beyond dispute that his claim rests upon the fact that fraudulent tickets were, 
 against the knowledge and will of the voters, clandestinely procured to be voted, 
 and thereby a fraud was perpetrated upon the voters," to which the House ought 
 not to give effect. 
 
 Acklen vs. Darrell {3d minority report) , 45th Cony 1 Ells. , 188 
 
664 DIGEST OF CONTESTED ELECTION CASES. 
 
 Votes obtained by deception counted as intended to be cast. 
 Where tickets were circulated bearing the name of contestee, but all the other names 
 of the party ticket of contestant, and twelve such tickets were voted and counted 
 for contestee: Held, that they should be counted for contestant. 
 
 English vs. Pedle, 4Slh Covg Mobley, 169; 173 
 
 Where a voter was deceived into voting for contestee under the supposition that he 
 was voting for contestant, such deception being a criminal offense under the laws 
 of Ohio, "his vote should be deducted from the poll of contestee and added to 
 that of contestant." 
 
 Campbell v^. Morey, 48th Cong Mobley, 227 
 
 Where voters were induced by deception to vote a party ticket containing the name 
 of the ojJposing candidate for Congress: Query, Whether the poll should be rejected 
 or the vote corrected. 
 Frederick vs. Wilson, 4Sih Cong Mobley, 404 
 
 If fraudulently instigated by contestee himself, election void. 
 The circulation of fraudulent posters a few days before an election announcing 
 another person as the candidate of a party for Congress is dishonorable, and it the 
 evidence established the complicity of the contestee, and its effect on the voters 
 produced a different result than otherwise would have occurred, the election 
 should be set aside. 
 
 Bradley vs. Slemons, 46th Cong 1 Ells., 310 
 
 Committed by county officials does not prove fraud in precinct elections. 
 Where the names on the ballots had been "alternated" by the county electoral 
 boards, for the obvious purpose of confusing the voters, but there was no direct 
 prohibition of this practice in the law, the committee refused to throw out the vote 
 of these counties, on the ground that this conduct was not committed by the pre- 
 cinct officers, and the precincts ought to be considered separately. 
 
 Yost vs. Tucker, 54th Cong Report 1636 
 
 Where part of a conspiracy invalidates elections. 
 Where the names on the ballots were "alternated," or printed in German or script 
 letters, for the obvious purpose of confusing voters, and the general conduct of the 
 election oiBeers indicated a conspiracy to deceive and defraud illiterate voters, the 
 minority threw out the votes. 
 
 Yost vs. Tucker {minority report), 54th Cong ..Report 1636, part 2 
 
 DECLARATIONS OF VOTERS. 
 
 Whether Admissible as Evidence. 
 See Evidence ; res gestse, hearsay, and declarations of voters. 
 
 DE FACTO OFFICERS. 
 
 See Officers of Election, Disqualification of, and not sworn. 
 
 DELEGATE (see also Election, when set aside). 
 
 Office not derived from Constitution, but from ordinance of 1787. 
 The office of Territorial Delegate "is one which is not provided for in the Constitu- 
 tion. It grew out of the ordinance of Congress for the government of the North- 
 western Territory, passed anterior to the adoption of the Constitution of the United 
 States, and [which] has formed the basis of all the Territorial governments which 
 have since existed." 
 
 Biddle vs. Richard, 18th Cong -. C. and H. , 407 
 
DELEGATE. 665 
 
 A Delegate is a member of Congress. 
 A Delegate is a member of Congress. A Representative is a member with full pow- 
 ers. A Delegate is a member with limited powers. 
 
 Cannon vs. Campbell (Mr. Alherien) , 47th Cong 2 EUs., 652 
 
 House has authority to inquire into the election of. 
 In a contest for a seat as Territorial Delegate it was objected that as a Delegate was 
 not a member the House had no authority to question the election. But the 
 House proceeded to the investigation, and declared the seat vacant. 
 Eastonya. Scott, Uth Cong 0. and H., 283 
 
 Seat may be contested under the law, like that of a member. 
 A Territorial Delegate is so far a member that the spirit of the law in regard to con- 
 tested elections and the constitutional provisions under which it is enacted apply 
 to him. 
 
 Cannon vs. Campbell {Mr. Eanney), 47th Cong 2 EUs., 645 
 
 The House has arbitrary power to admit whom it chooses. 
 
 The office of Territorial delegate is not created by the Constitution, but delegates are 
 admitted as a matter of favor. The House may admit whom it chooses, but except 
 in most extraordinary cases it should only admit those regularly chosen under the 
 law. But in an extraordinary case, where the sitting member had not been elected 
 under any valid law, and the contestant had not been elected under any law, but 
 more legal voters had expressed their choice at the election at which contestant 
 was voted for than at the election at which contestee was voted for, and it appeared 
 that to declare the seat vacant would be to produce a repetition of the same cir- 
 cumstances, and that no legal or fair election could be held, the commitLee recom- 
 mended that the contestant be seated. But the House declared the seat vacant. 
 Reeder vs. Whitfield [first case), 34th Cong 1 Bart., 204 
 
 His admission a question of expediency. 
 The minority held that the question of the admission of a Delegate was a question of 
 expediency, to be determined by the House upon the particular facts in a case, and 
 that if the House deemed it expedient a Delegate should be admitted from a Terri- 
 tory not yet organized under the laws of the United States. 
 Smith (minority report), Slst Cong 1 Bart., 112 
 
 His right guaranteed by law. 
 The House can not annul the acts of Congress providing for the admission of Terri- 
 torial Delegates. 
 
 Cannon vs. Campbell (Mr. Atherton), 47th Cong 2 Ells., 650 
 
 Cannon vs. Campbell ( minority report) , 47th Cong 2Ells., 664 
 
 A mere creature of law. 
 Delegates are so far the mere creatures of law that their term of service may be long 
 or short, and may commence and terminate at such periods as Congress, in their 
 wisdom, may direct. 
 Doty vs. Jones, S5th Cong 1 Bart., 18 
 
 Ought not to be expelled except by a two-thirds vote. 
 
 While the House has, no doubt, the power to expel a Territorial Delegate by a 
 majority vote, his case ought to be considered after the analogy of that of a mem- 
 ber, and he ought only be expelled by a two-thirds vote, and for causes which 
 would be sufficient to justify the expulsion of a member. 
 Cannon (minority report), 43d Cong Smith, 270 
 
 May be excluded by majority vote if for any reason deemed unfit to hold seat. 
 Territorial Delegates are not members of Congress, but the creatures of the statute. 
 Congress might at any time abolish the office. No law of Congress can bind the 
 House by fixing the qualifications of Delegates, but the House may at any time, by 
 a majority vote, exclude any Delegate whom it may judge for any reason unfit to 
 hold a seat. 
 
 Cannon vs. Campbell (Mr. Calkins), 47th Cong 2 Ells., 613 
 
666 DIGEST OF CONTESTED ELECTION CASES. 
 
 Term of two years, but need not coincide with Congressional term. 
 The coinmitlee were (but somewhat doubtfully) of the opinion that the act of 1817, 
 requiring Territorial Delegates to be elected ' ' every second year for the same term 
 of two years for which members of the House of Representatives of the United 
 States are elected," did not require the terms to begin at the same time as the terms 
 of Representatives, but merely to be of the same length. 
 Doty vs. Jones., S5lh Cong - 1 Bart., 18 
 
 Seat not vacated by admission of State. 
 The erection of the Northwest Territory into the State of Ohio held not to vacate 
 the seat of the Territorial Delegate. 
 
 Fearing, 7lh Cong C. and H., 127 
 
 The committee held that when the State of Wisconsin was admitted, the Territorial 
 government still continued in the portion of the Territory outside of the limits of 
 the new State, and recommended the admission of the Delegate. A minority held 
 that the corporation of the Territory had ceased to exist. The House admitted 
 the Delegate. 
 Sibley, SOth Cong : 1 Bart. , 105, and Report No. 10, 2d sess. 30th Cong. , pt. 2 
 
 Seat vacated by admission of State. 
 ^Vhere a Delegate from the Territory of Michigan was elected for a term of two years, 
 but at the expiration of one year the Territory became a State: Held, that the 
 corporation of the Territory having been dissolved, all the offices connected there- 
 with expired, including that of Delegate to Congress. 
 
 Doty vs. Jones, SSih Cong 1 Bart., 17 
 
 The majority of the committee held that when a State is admitted into the Union, 
 the seat of the Delegate is not vacated, but he holds it to represent that portion of 
 the Territory not included within the limits of the State. The minority recom- 
 mended the seating of the contestant, who was elected at a separate election held by 
 the people of the Territory outside the limits of the new- State. The House passed 
 the following resolution: "Resolved, That the admission of the State of Minnesota 
 into the Union with the boundaries prescribed in the act of admission operates as a 
 dissolution of the Territorial organization of Minnesota; so that so much of the late 
 Territory of Minnesota as lies without the limits of the present State of Minnesota 
 is without any distinct, legally organized government, and the people therefore 
 not entitled to a Delegate in Congress until that right is conferred upon them by 
 statute." 
 
 Puller vs. Kingsbun/, 36th Cong 1 Bart., 251-257 
 
 From Territory not yet organized, not admitted. 
 Delegates have never been admitted except from Territories duly organized under the 
 laws of the United States, and it would be inexpedient to admit a Delegate from 
 territory organized without reference to the laws and not yet recognized by Congress. 
 
 Smith, Slst Cong 1 Bart, 109 
 
 Bahbett, Slst Cong 1 Bart., 116 
 
 Messervey, Slst Cong 1 Bart. , 148 
 
 A Delegate elected from Wyoming before the Territory was organized as a separate 
 Territory, and at an election called by a mass meeting, not in accordance with any 
 law, was refused admission. 
 
 Casement, 40th Cong 2 Bart. , 516 
 
 Delegate from Southwest Territory admitted to the House. 
 By virtue of the ordinance of 1787 for the government of the Northwest Territory, 
 and the act of 1790 extending its provisions to the territory southwest of the Ohio, 
 said Territory, through its general assembly, is entitled to elect a " Delegate to 
 Congress," with the privilege of debating, but not of voting. The Delegate was 
 admitted to a seat in the House. Not required to be sworn, and pav and franking 
 privilege granted by special bill. 
 
 White, 3d Cong C. and H.,85 
 
BELEGATE. 667 
 
 Delegate from Mississippi Territory admitted to the House. 
 By virtue of the oniinance of 1787 for the government of the Northwest Territory, 
 and tlie acts of 1798 and 1800 extending its provisions to Mississippi Territory, 
 said Territory is entitled, tlirongh its general assembly, to electa "Delegate to 
 Congress." He was admitted to a seat in the House. 
 
 Hunter, 7th Cong C. and H., 120 
 
 Wisconsin entitled to immediate representation. 
 The first Delegate from the Territory of Wisconsin qualified at the beginning of the 
 second year of the Twenty-fourth Congress and served until the middle of the 
 Twenty-fifth Congress. Another candidate, duly elected, then presented himself, 
 and it was held that under all the laws under which Michigan became a State, and 
 the Territory ol Wisconsin was formed, the term of the first Delegate had expired, 
 and that of the second began immediately. 
 
 Doty vs. Jones, S6th Cong 1 Bart., 16 
 
 Citizenship at time of election in Michigan. 
 Under the law for the government of the Territory of Michigan which provided 
 "that every free white male citizen of said Territory above the age of 21 years, who 
 shall have resided therein one year next preceding the election," etc.. should be 
 entitled to vote for Delegate to Congress, and be eligible to office in the Territory, 
 the Committee, with outdeciding the question whether the office of Delegate to 
 Congress was an office in the Territory, held that the law did not require a year's 
 citizenship, but only residence for a year, with citizenship at the time of the 
 election. 
 
 Biddleys. Richard, 18th Cong C. and H., 409,410, 
 
 Congress may prescribe qaalifications of. 
 Congress has the power to add the qualification of loyalty to the qualifications for 
 membership prescribed by the Constitution. Much more has it the power to pre- 
 scribe qualifications for a Territorial Delegate. 
 
 Cannon vs. Campbell {Mr, Beltzhoover) 47th Cong 2 Ells., 639 
 
 Mnst be a citizen and shonld have similar qnalifications to those of a Bepresentative. 
 If a "Delegate can not be regarded as strictly and technically a Representative, yet, 
 considering the dignity of his oflHce, the important functions which he may exer- 
 cise, and the high privileges he enjoys, the strongest reasons of public policy would 
 seem to require not only that he sihonld not be an alien, but that he should possess 
 qualifications similar to those required in a Representative. * * * An alien 
 can not exercise the office of a Delegate to Congress." 
 Levy, 37th Cong, {first report) Report No. 10, 1st sess., 27th Cong., p. 5. 
 
 Qnalifications same as those of Bepresentatives. 
 Whether Congress has the power to extend the Constitution over a Territory or not, 
 it certainly has the power to make the Constitution a part of the statute law of the 
 Territory, and where the Constitution has been declared the law of a Territory, so 
 far as applicable, and no laws have been passed prescribing qualifications for the 
 office of Territorial Delegate, the qualifications are the same as those prescribed 
 by the Constitution for members of the House of Representatives. 
 
 Maxwell vs. Cannon, 43d Cong Smith, 188 
 
 DEaCtJBBEB. 
 
 See Notice of Contest. 
 
 DEPOSITIONS. 
 
 See Evidence. 
 
 DESEKTEBS. 
 
 Sre QiTALiFicATioNs, OP Electors. 
 
668 DIGEST OF CONTESTED ELECTION CASES. 
 
 BIIiiaENCE. 
 
 Due diligence required. {See Evidence, additional, and also under Contest, dis- 
 missal of. ) 
 
 DIRECTORY LAWS. 
 
 See Laws, Mandatoky and DiRECrORy. 
 
 DISMISSAL OF CONTEST. 
 
 See imder Contest, dismissal op. 
 
 DISaXIAI-IFYING OFFICE. 
 
 See Qualifications op Representative.s. 
 
 DISTRICT (see also Apportionment Act, and Election by General Ticket.) 
 
 After redistricting, election to fill vacancy to be held in new district. 
 Where a member had resigned, and the election to fill the vacancy had been held in 
 a district established since the former election, and containing additional towns 
 whose vote determined the result of the election, the committee held that the 
 new district was the only one in legal existence, and that the election was properly 
 held therein. 
 
 Perkins vs. Morrison, 31st Cong _.l Bart., 142 
 
 The minority held that an election to fill a vacancy held in a new district, differently 
 constituted from the district in which the original election was held, was valid, on 
 the ground that the new district was the only one then having legal existence. 
 But in this case if all the votes cast in the newly added parts of the district were 
 rejected, and the maximum possible vote in the excluded parts of the old district 
 added, the result would be the same. 
 Hunt \B. Menard (minority report) 40th Cong 2 Bart., 497 
 
 Where a State had been redistricted, and a vacancy occurring by virtue of the death 
 of a member elected from one district was filled by a special election held in a dis- 
 trict differently constituted, held, that Represenfaitives represent States and not 
 districts, and the action of the governor of the State should be acquiesced in. 
 Pool vs. Skinner, 4Sth Cong Mobley, 66 
 
 After redistricting, election to fill vacancy to be beld in old district. 
 A vacancy "is the occurrence of an event by which a portion of the people are left 
 unrepresented," and it ought to be filled by the people in whose representation 
 the vacancy occurs, even when the State has been redistricted since the former 
 election. 
 
 Perkins vs. Morrison [minority report) , 31st Cong 1 Bart., 146 
 
 Where the State was redistricted after the election, and an election to fill a vacancy 
 was held in a new district, comprising part of the old district and part of another, 
 the committee held that the election should have been held in the district in whose 
 representation the vacancy occurred, and that the election in the new district was 
 void. 
 
 Hvnt vs. Menard, 40th Cong 2 Bart., 481 
 
 " We are of the opinion that the right of representation for the full term of the Forty- 
 eighth Congress inhered in the people of the old district as an accrued or an established 
 right, and that they alone had the right to fill the existing vacancy. This right was 
 secured to them on a fundamental principle of our representative government and 
 by positive law, both Federal and State. We hold these principles and these 
 propositions to be radical and fundamental in our government : (1) No portion of 
 the people or territory of a State can be rightfully deprived of a representation in 
 Congress; (2) no portion of the people or territory are rightfully entitled to a 
 double district representation in Congress." 
 
 Pool vs. Skinner {minority report), 4Slh Cong Mobley, 68 
 
DISTRICT. 669 
 
 When State redistricted, old districts last through Congress already in existence. 
 "When a State has been divided and Representatives elected for a certain Congress, 
 each district must be regarded as an existing fact for and through that entire Con- 
 gress; and as the person elected from a particular district has the right to hold the 
 office during the legal term of that Congress, so his office must be held to exist in 
 law and in fact for the entire term of , the Congress of which he is a member." 
 The only people who have a right to participate in an election to fill a vacancy arfe 
 the people of the old district, and all votes cast outside of this district are void. 
 
 Pool vs. Skinner {Mr. Cool), 48th Cong Mobley, 77 
 
 Disputed honndary. 
 Where the districting act provided that certain counties and the unorganized terri- 
 tory south of a certain line should constitute the first district, and the remaining 
 counties and the unorganized territory north of the same line should constitute the 
 second district, but by a prior law certain of the unorganized territory north of 
 the dividing line Was attached to a county in the first district for election purposes, 
 the committee held that the voters in this territory could vote for Representative 
 in Congress from the first district. The minority held that they were residents of 
 the second district, and could only vote in that district. On the whole case the 
 House refused to adopt the conclusions of either majority or minority. 
 MiUervs. Thompson, 31st Cong 1 Bart., 124, 132 
 
 Disputed division of districts in Minnesota. 
 Where the legislature had prescribed that certain counties should constitute the first 
 district, certain others the second, and the remainder of the State the third, it 
 must be assumed that the counties specified for the first and second districts were 
 intended to include the territory which the legislature itself had determined should 
 belong to those counties. And even if it were conceded that territory made a part 
 of one of the counties of the second district by an act of the legislature could not 
 properly be made a part of it, it did not follow that the territory thus improperly 
 included was made by the legislature a part of the third district, or was not prop- 
 erly a part of the second district. 
 
 Cox vs. Strait, 44th Cong Smith, 430 
 
 State not apportioned under apportionment act; no legal district. 
 Where the State had not yet been redistricted under the new apportionment act giv- 
 ing it five representatives instead of four, and the alleged election was held in the 
 old first district, the committee held that "if, therefore, there was no other diffi- 
 culty in the way of giving effect to this alleged ehction, it could not be said to 
 have been held in conformity with, but in contravention of, law." 
 
 Field, S8lh Cong 1 Bart, 580 
 
 Established by seceding legislature not recognized. 
 Where the State had been redistricted for the Confederate Congress, and claimant 
 claimed to have been elected to the United States House of Representatives from 
 a district composed of parts of two districts already represented in the House, he 
 was not admitted. 
 
 Rodgers, 37th Cong 1 Bart. , 462 
 
 DOMICILE. 
 
 See Residence. 
 
 ELECTION. 
 
 Adjournment of. {See Adjoumuent. ) 
 
 Officers of. {See Officers of Election.) 
 
 Notice of. {See Notice of election and Irregularity in notice. ) 
 
 Place of. {See Irregularity in place of election and Polling place. ) 
 
 Right of House to inquire into election. {See House of Representatives. ) 
 
670 DIOEST OP CONTESTED ELECTION CASES. 
 
 When election at any poll void. [See Eeturns, impeachment of, and when 
 impeached, what votes counted; and see also Fraud, Intimidation, Bribery, Decep- 
 tion, Undue influence, Irregularity, Officers of election, disqualitication of, etc.) 
 
 What Constitutes. 
 
 Must be by the people. 
 ' ' The term election must mean the act of choosing performed by the qualified electors, 
 in conformity with the requisitions of the Constitution and laws regulating the 
 manner in which the choice shall be made. If, therefore, the legal electors, on 
 the day appointed, should fail to make a choice, it is confidently believed that no 
 other authority of the State can, at any other time, make good this defect." Held 
 that a law providing that in case of a tie the governor and council should determine 
 by lot who should be representative was unconstitutional. 
 
 Reed vs. Cosden, nth Cong C. & H., :«4 
 
 Whomsoever the people choose to select. 
 ' ' The people are supreme, and whomsoever they choose to select as their representative 
 they are entitled to be represented by that person.' And ru> class of public officers 
 can lawfully disregard their will." 
 
 Goode vs. Epes {minority report), 33d Cong. .Report 1952, pt. 2, p. 19 
 
 Free choice of the majority fairly determined. 
 "The true question is not whether every officer appointed to give security and con- 
 venience to the exercise of the right of suffrage has done everything that by law 
 he ought to do, but whether everything has been done that was in fact necessary 
 to secure the full and free exercise of the right; whether the right has been, in fact, 
 so exercised. If it has been so exercised, and the suffrages of a majority of quali- 
 fied electors have been given in favor of any individual, an election has been made 
 and that individual is the person elected. His right is identified with the election 
 itself and the rights of the electors; all must be sustained or sacrificed together." 
 
 Letcher wa. Moore (minority report) , ^Sd Cong C. &H.,823 
 
 Must be full expression of the will of the people. 
 Where members not elected at the regular time were unseated, the members elected 
 at the regular time were also refused seats apparently on the ground that, owing to 
 misunderstanding, only about one-half of the voters who voted at the election voted 
 for anyone for Congress, and there was consequently no full expression of the will 
 of the people. 
 
 Oholson and Claiborne, SSth Cong .1 Bart., 16 
 
 There must be a free expression of the popular will. 
 " It is a fraud, a cheat, to hold anything an election which is not the freely expressed 
 will of the whole body of electors acting intelligent!}-, unbought, and unintimi- 
 dated" * * * "An election is the free choice by those who have the right to 
 make it, and who desire and seek to make it, uncompelled, unawed, and unintimi- 
 dated." An election controlled by violence should be set aside. 
 
 Whyte vs. Harris (majority report), SSih Cong 1 Bart. , 258, 262 
 
 Free choice of the people, fairly determined. 
 Elections are simply the method whereby citizens may manifest their choice; and 
 when they have proceeded in accordance with law,' and manifested their choice 
 through legal forms, their right so to do shall not be taken away from them as long 
 as their choice can be ascertained. There are three questions to be answered : 
 Did the electors express their choice in accordance with law? Was the election 
 free and fair? Can the choice be ascertained from the evidence? 
 
 Spencer vs. Morey (minority report) , 44th Cong Smith, 486 
 
 Votes legally cast, counted, and returned. 
 
 "To validate an election there must be votes legally deposited by legal voters, and 
 legally counted, and the result legally declared." 
 Sheridan vs. Pinchback (minority report), 4Sd Cong Smith, 227 
 
ELECTION. 671 
 
 Mnst be a fnll expression of the will of the people. 
 Where an election was held in October, under proclamation of the governor, at 
 which over 30,000 votes were cast, and another election was held in November, 
 without proclamation, and, so far as appeared, without general notice to the voters, 
 at which only 171 votes were cast, and these votes were never canvassed by any 
 county or State officer, and the candidate who received the majority of the votes 
 at the November election petitioned to be admitted as a member, alleging that the 
 election in November was held at the legal time, the committee held that, without 
 regard to the legal time of election, the election in November was not such an 
 expression of the will of the people as to entitle any candidate to a seat under it. 
 Holmes and Wilson, 46lh Cong 1 Ells., 322-344 
 
 Will of the people fairly and honestly expressed. 
 "The whole theory of a government which is to be managed and controlled by the 
 people exercising the elective franchise is that their will when fairly and honestly 
 expressed shall be the law, and shall be respected by all the authorities." 
 
 English vs. PeeUe ( minority report ) , 48th Cong Mobley , 1 79 
 
 Contestant receiving majority of votes seated. 
 Where the contestant had a majority of 2 votes outside of a county attacked by the 
 contestee, and the evidence on which this county was attacked was inadmissible, 
 and even if it were admitted and the vote of the county rejected or recounted in 
 either of the ways suggested the contestant would still have a majority, he was 
 unanimously given the seat. 
 
 Boles vs. Edwards, 4gd Cong Smith, 59 
 
 When Whole Election Set Aside. 
 
 When no election, legality of votes immaterial. 
 " Only two questions can ever arise touching an election: (1) Was there an election? 
 If there was, then (2) Who had the majority of votes? If there was no legal elec- 
 tion, it is wholly immaterial how many votes were cast, whether they were legal 
 or illegal, or who had a majority of them." 
 
 Harrison vs. Dams, 36th Cong 1 Bart. , 345 
 
 If void when held, can not be made legal. 
 The legislature can not by subsequent enactment make legal an election not legal at 
 the time it was held. 
 McKenzie, 37th Cong 1 Bart, 462 
 
 When result changed by rejection of a precinct. 
 Where by the rejection of the vote of a precinct for fatal irregularities the result of 
 the election was changed, the sitting member contended that the election should 
 be set aside, as to give the seat to the petitioner would be to give it to the minority 
 candidate. The committee recommended the seating of the petitioner, but the 
 House set the election aside, and so seems to have sustained the objection. 
 
 Boston vs. Scott, 14th Cong C. and H., 282 
 
 When whole resnlt in donbt. 
 Where testimony had been taken upon the false assumption that the burden of estab- 
 lishing the legality of a vote lay upon the party for whom it was cast, and, so far 
 as could be ascertained from such testimony, a majority of the legal votes were 
 cast for petitioner, but a considerable number of votes rejectea under the testi- 
 mony were subsequently shown to be legal, and many more may have been, and 
 where this majority for petitioner was overcome by rejecting a number of polls on 
 technical grounds, leaving the sitting member a majority of the remainder, a 
 majority of the committee held that it was impossible to determine which party 
 was justly entitled to the seat and recommended that a new election be ordered. 
 A minority held that however just such a decision might seem in this particular 
 case, yet as the sitting member, upon the principles adopted by the whole com- 
 mittee, had a majority of the legal votes, he was entitled to the seat. The House 
 sustained the conclusions of the minority. 
 
 Draper vs. Johnston, SSd Cong C. and H., 714 
 
672 DIGEST OF CONTESTED ELECTION CASES. 
 
 When impossible to ascertain trne result. 
 A case was referred to the Committee on Elections, from which two reports were pre- 
 sented, one in favor of each candidate. The House, disregarding both reports, 
 proceeded to a detailed examination of the evidence; but after a month of discus- 
 sion, having considered only part of the evidence, declared the seat vacant, it 
 being impossible to arrive at a decision. 
 Letcherxs. Moore, esdCong C. and H., 844-858 
 
 When impossible to determine who was elected. 
 Where the frauds and irregularities proved were such as to render it impossible to 
 determine who was elected, the seat was declared vacant. 
 Bowen vs. De Large, 4^d Cong Smith, 100 
 
 When whole result rendered doubtful by illegal voting. 
 Where a number of illegal votes was shown, ten times greater than the returned 
 majority of contestee, and three times greater than the majority claimed by him 
 after all eliminations possible under the evidence had been made, but it could not 
 be ascertained from the evidence for whom these vote.? were cast, the majority of 
 the committee held (but they were not sustained by the House) that it was impos- 
 sible by any method of elimination to ascertain the true result of the election, and 
 that the safest and most equitable rule would be to declare the election void and 
 refer the question to the people by a new election. 
 
 CurlinYS. Yocum {majority report) , 46ih Cong 1 Ells., 434 
 
 Not to be set aside for uncertainty resulting from the negligence of the parties. 
 "The burden of proof, even if the doctrine of declaring an uncertain election void be 
 adopted, is, we think, * * * on the contestant to show that more illegal votes 
 than the returned majority of the sitting member were cast, and either that they 
 were cast for the sitting member or that it is impossible to ascertain for whom they 
 were cast; and that this impossibility is an actual impossibility arising from the 
 circumstances of the case, and which could"not have been remedied by the use 
 of due diligence, and not an impossibility arising wholly from the absence of e\-i- 
 dence that could have been taken. The party having the burden can not by his 
 own neglect create the impossibility." 
 
 Curtin vs. Footm ( second minority report ) , 46th Cong 1 Ells., 437 
 
 If held without authority of law, void. 
 If an election is held without authority of law it is void without r^ard to irregulari- 
 ties. The act dividing the Territory of Indiana provided that a new legislature of 
 at least nine members and a Delegate to Congress should be elected at an election 
 to be ordered by the old legislature of the Territory, which had consisted of eight 
 members, though at the time of the passage of the act there was no legislature in 
 existence. The act was held by the committee to be fatally detective and the 
 election was recommended to be set aside, but the House took no action. 
 
 Randolph vs. Jennings, 11th Cong C. and H. , 243 
 
 First election in Hawaii valid, though no law passed to provide for it. 
 Under the laws of the Republic of Hawaii provision was made for the election by 
 the people of only two sets of officials. Under the organic act these laws of the 
 Republic were continued in force and a Delegate was required to be elected, the 
 times, places, and manner of holding elections to be "as fixed by law.' No new- 
 laws were passed, but an election was held under the forms of the law for electing 
 members of the Hawaiian legislature. As there was no provision in this law for 
 an election for Delegate it was claimed that no valid election could be held under 
 it, but the committee did not concur, and reported in favor of the right of the sit- 
 ting Delegate to his seat. 
 
 Wilcox, 66th Cong Report 3001 
 
 Before admission of State, valid. 
 Where members were elected before the admission of the State, under a proposed 
 constitution providing for the election of three members, and the constitution as 
 subsequently ratified by Congress provided for the election of only two members, 
 and only two persons presented certificates, it was held that they were entitled to 
 be sworn in. 
 
 Phelps and Cavanaugh, SSth Cong 1 Bart., 250 
 
jii±jj:j\jA.x 
 
 T)N. 673 
 
 Before admission of State, void. 
 
 The minority held that a State not yet in existence could not elect Representatives 
 "to represent her nonentity." 
 Phdps and Cavanaugh {minority report), 35th Cong Report No. 408, pp. 5-7. 
 
 Of three members under an organic law providing for only two, void as to all three. 
 Where meinbers were elected before the admission of the State, under a proposed 
 constitution providing for the election of three members by general ticket, and the 
 constitution aa subsequently ratified by Congress provided for only two members, 
 the minority held that even if the admission of the Territory related back to and 
 legalized the acts of the Territorial officers, no valid election could be held under 
 this law, as the election of two members would be in conflict with the law under 
 which the election was held, and the election of any other member would be in 
 conflict with the organic law. The person having the third from the highest 
 number of votes was as much elected as the other two, and the House had no more 
 authority to select two of the three than it would have to choose between two 
 candidates having an equal number of votes. 
 
 Phelps and Cavanaugh [minority report) , S5th Cong Report No. 408, pp. 5-11. 
 
 No legal election in most of the district. 
 If "the election was invalid in eleven out of the twelve counties, rendering it impos- 
 sible to count but 737 votes out of 8,941, no other alternative would be left but to 
 set aside altogether such an election, and remand the case back again to the people, 
 that they might have an opportunity to give expression to their choice in con- 
 formity to law." 
 
 Blakey vs. GoUady, 40th Cong 2 Bart, 419 
 
 When election void in one -third of the district. 
 Where the vote of a city casting one-third of the vote of the district had to oe thrown 
 out for repeating, bribery, and intimidation, and contestant had a large majority 
 in the remainder of the district, the seat was declared vacant, the committee unani- 
 mously concluding that it was impossible to tell for whom the majority of the 
 legal votes was cast. 
 
 Buttz-vs. Mackey,44ih Cong Smith, 689 
 
 Ought not to stand on the vote of two out of five connties. 
 Where, in a district of five counties, the vote of three is thrown out, the vote of the 
 other two ought not to determine the choice of the five. 
 McFarland vs. Culpepper, 10th Cong 0. and H., 223 
 
 'So election in part of county. 
 The failure of the sheriff to appoint deputies to hold the election at two precincts 
 was alleged as a reason why the election should be set aside, but the committee 
 decided the case on other grounds. 
 
 Randolph vs. Jennings, 11th Cong 0. and H., 240 
 
 Fraud, violence, and intimidation in ten out of fifteen parishes. 
 Where there was widespread fraud, violence, and intimidation in ten out of the 
 fifteen parishes of the district, the committee held that the election was void. The 
 minority held that there was evidence enough to reject only two entire parishes 
 and nine polls in two others. Contestee having still a majority of the remaining 
 polls, they held that the election was good and he was entitled to retain the seat. 
 The House vacated the seat. 
 
 Benoit vs. Boatner {first case), 54th Cong Report 867 
 
 Fraud and violence in one-~third of district, election valid. 
 Where there was flagrant fraud and violence in one-fifth of the parishes of the dis- 
 trict, casting one-third of the vote, but the committee were not sure that the fraud 
 and intimidation were so general throughout the district as to render it certain that 
 there was not a free and fair expression by the great body of the electors, the com- 
 mittee reported in favor of the validity of the election. 
 Benoit vs. Boatner {second case), 54th Cong Report 2808 
 
 H. Doc. 510 43 
 
674 DIGEST OF CONTESTED ELECTION CASES. 
 
 Where election fair in three-fourths of district, electi •■n valid. 
 Where there was no evidence of fraud, violence, or intimidation in most (more than 
 three-fourths) of the district, and the general charge of suppression of negro votes 
 was rebutted by the fact that contestant was the candidate of a new white Repub- 
 lican party expressly opposed to "negro dorr.ination," the committee held that the 
 claim that the election was invalid waa not sustained. 
 The minority claimed that there was intimidation in the majority of the parishes, 
 and that the election should be declared void. 
 Seattle vs. Price, 54th Cmg E«port 2812 
 
 Thousands of voters prevented from voting, but tender insnfficient to count them. 
 Where thousands of voters, many more than the returned majority oi contestee, had 
 been deprived of their votes by the partisan and unfair enforcement of an uncon- 
 stitutional registration law, one member of the committee, holding that the testi- 
 mony did not show such a tender of votes on the part of the excluded voters as 
 would justify counting them, recommended that the seat be declared vacant. The 
 House agreed and vacated the seat. 
 
 Johnston vs. Btolces {Mr. McCall), 54th Cong Report 1229, p._ 14 
 
 When major part of votes unaffected. 
 It was stated as the opinion of the committee that if partial corruption were proved, 
 but the major part of the votes remained unaffected, the result should be deter- 
 mined from such major part. 
 Van Rensselaer vs. Van Allen, 3d Cong C. and H., 75 
 
 New election ought not to be ordered if result can possibly be ascertained. 
 "In all cases of contested elections, where the question depends upon matters of fact 
 which are controverted by the parties, much difficulty is to be expected in coming 
 to a decision; and where there is room for doubt, a disposition is often felt to return 
 it to the people. This, however, ought not be done when it is possible to ascer- 
 tain what the true result Jias been." When people have honestly and fairly gone 
 through the process of election, "no doubts which are capable of being solved 
 ought to be permitted to operate against them. Indeed, nothing short of the 
 impossibility of ascertaining for whom the majority of votes have been given 
 ought to vacate an election." 
 
 Biddle and Richard vs. Wing, 19th Cong C. and H. , 506 
 
 If election in part of district void, result decided from remainder. 
 Where the election in two parishes, casting a majority of the votes in the district, waa 
 vitiated by violence and intimidation, the result was decided from the votes in the 
 peaceable parishes. 
 
 Hunt vs. Sheldon, 41at Cong 2 Bai-t., 534 
 
 "When a portion of the people of any district, in a peaceable and orderly manner, 
 and in strict compliance with all the forms of law, manifest their will at the ballot 
 box, we can see no good reason why that will should be disregarded on the ground 
 that there were other people in the district who did not choose to obey the law, 
 nor submit to its requirements." 
 
 Wallace vs. Simpson, 41st Cong _■ 2 Bart., 743 
 
 Where the election in six out of nine counties was void on account of violence and 
 intimidation, and contestant received a majority in the other three counties, the 
 committee reported this as one of three grounds for seating contestant. The House 
 seated contestant, but perhaps on one of the other grounds. 
 
 Wallace vs. Simpson, 41st Cong 2 Bart., 735-746 
 
 If election in small part of district void, result decided from remainder; but if void 
 in large part of district, whole election void. 
 The committee adopted the rule that in counties where the electors generally had 
 not an opportunity to vote freely and without restraint, fear, or influence of fraud 
 the vote should be thrown out and the result declared from the vote of the peace- 
 able parishes. This rule was to be applied even when there was no actual violence 
 on the day of the election at the polls, but where there had been such a condi- 
 tion of violence preceding the election that a large number or class of voters 
 
ELECTION. 67.5 
 
 refrained from voting in the reasonable fear that the scenes of violence would be 
 repeated if they should attempt to vote. In the first case reported under this rule 
 (Hunt vs. Sheldon) the House sustained the report of the committee, but in this 
 case about half the votes were cast in the peaceable parishes, and contestee had a 
 very large majority of them. In the next case (Sypher vs. St. Martin) the House 
 refused to sustain the report of the committee. In the third case (Morey vs. 
 McCranie) the committee reported that they preferred not to take this action of 
 the House as a reversal of the rule, but "we accept the decision of the House in 
 Sypher's case not as a reversal but as a limitation of the rule adopted in Sheldon's 
 case, and interpret the action of the House in Sypher's case to mean that the rule 
 should not be so far extended as to apply to such a case where less than one-fourth 
 of the legal electors of the district resided, and one-fifth of the registered vote was 
 cast, within the peaceable parishes and precincts, and the claimant received but a 
 small majority of that vote." In the last case (Morey vs. McCranie) the peaceable 
 parishes contained about one-third of the registered vote, and in these parishes con- 
 testant received a small plurality, but not a majority of the votes. If the election 
 in the other parishes had been peaceable, it was evident that he could not have 
 been elected. Contestee was ineligible aside from the question of intimidation. 
 The committee reported against both claimants and the House unanimously agreed. 
 
 Hunt vs. Sheldon, 41st Cong 2 Bart. , 703 
 
 Sypher vs. St. Martin, 41st Cong , 2 Bart., 699 
 
 Morey vs. McCranie, 41st Cong 2 Bart., 719 
 
 When void in less than half the district, result declared from remainder. 
 Where the election was not contested in seven parishes, casting considerably over 
 half the votes of the district, but was vitiated by violence and intimidation in the 
 other five parishes, and contestant had a majority of 245 votes in the seven uncon- 
 tested parishes, he was seated. 
 
 DarraU vs. Bailey, 41st Cong 2 Bart, 754 
 
 When election void in one-third of district, result declared from vote in other two- 
 thirds. 
 Where the election in four out of ten parishes, casting about one-third of the vote 
 of the district, was void for violence and intimidation, and contestant had a large 
 majority of the vote of the other six parishes, casting two-thirds of the vote of the 
 district, contestant was seated. 
 
 Newsham vs. Ryan, 41st Cong 2 Bart., 731 
 
 Ifot set aside when contestee's majority not overcome by most liberal construction of 
 evidence. 
 Where it was charged that contestee had been deprived' of votes by the abolition of 
 voting places, but there was no definite proof how many votes he had been deprived 
 of, the committee considered the amount of increase in the vote at the unques- 
 tioned election of two years later as a means of estimating the possible number. 
 And where fraudulent voting was charged in other parts of the district, but the 
 proof was indefinite, the committee estimated from various considerations the 
 largest possible number that could thus have fraudulently voted. Adding to the 
 vote of contestee the amount of the first estimate and subtracting from that of 
 contestant the second, the latter was found still to have a majority, and the com- 
 mittee reported in his favor. The minority reported that the title of both claimants 
 was so tainted with fraud that the seat ought to be declared vacant. 
 -Lawrence vs. Sypher, 4Sd Cong Smith, 340-355 
 
 Void in fonr connties, should stand on result in fifth. 
 Where returns are shown to be fraudulent and there is no proof aliunde as to the 
 actual vote, the fraudulent polls should be thrown out and the result stand on the 
 unimpeached polls. Where the election was shown to be fraudulent in four of 
 the five counties of a district, the election should stand on the result in the fifth 
 county. 
 
 McDuffie vs. Davidson {minority report), 50ih Cong Mobley, 622 
 
 Where not specifically shown invalid in half the district, election should stand. 
 Where widespread fraud was shown in seven of the nine counties in a district, but 
 the testimony as to individnal precincts did not show a large enough number of 
 ' votes afiected to overcome all of the majority returned for contestee, the committee 
 
676 DIGEST OF CONTESTED ELECTION CASES. 
 
 held that the vote of the two unimpeached counties, and the presumption of fair- 
 ness in favor of the unassailed boxes in the other counties, must save contestee liis 
 title to the seat. Mr. Houk, in a dissenting report, contended that three-fourths 
 of the majority having been overcome by an examination of one-fourth of the 
 boxes, a general conspiracy being shown, and contestant having been prevented 
 from taking testimony in regard to the other precincts, there was no "presumption 
 of fairness in favor of the unassailed boxes." 
 
 Chalmers vs. Morgan, 51st Cong Kowell, 329-433 
 
 When held under a law passed by a legislature not freely elected, invalid. 
 
 Where the legislature of a Territory was found not to have been freely elected by 
 
 the people, but to have been imposed upon them by an armed invading force, the 
 
 seat of the sitting delegate was declared vacant on the ground that it was not held 
 
 under a valid law, this legislature having no power to pass valid laws. 
 
 Reed^ vs. Whitfield {first case), 34th Cong 1 Bart, 203 
 
 Invalid when electors nnder duress. 
 "Voters may voluntarily stay away from the polls, and they are thereby taken and 
 deemed to have acquiesced in what was done by those who are present. But no ' 
 such presumption rests upon those who are under duress." 
 
 Pigott, 37th Cong 1 Bart, 463 
 
 Can not well be held under martial law. 
 "Martial law and military discipline, if not incompatible with, are certainly, at 
 least, poor instrumentalities for ascertaining the choice of freemen." 
 
 McKenzie vs. Kitchen, 38th Cong 1 Bart., 472 
 
 Void if held under martial law. 
 
 ' Any election for a civil office held under martial law, where the qualifications of 
 
 voters are prescribed by military officers, is not such an election as the founders of 
 
 this Government intended should be held under the Constitution which they 
 
 framed, and should be declared void in all cases by the Congress of the nation." 
 
 McHenry vs. Yeaman {Mr. Voorhees), 38th Cong Report 70, pt. 2, p. 2. 
 
 Failure to Hold. 
 
 Where election not held, votes that would have been cast not counted. 
 Where the law provided that if the regularly appointed officers of election failed to 
 hold the election, three freeholders might organize and hold the election, and con- 
 testant asked that votes be counted for him that would have been cast but for the 
 failure of the officers of election to open the polls, the minority of the committee 
 rejected the claim, and as it is not mentioned in the majority report it was proba- 
 bly rejected by the whole committee. 
 
 Sloan vs. Rawls {minority report), 43d Cong Smith, 161 
 
 " Outside polls " not legally organized not counted. 
 "The national law provides a way in the election of Congressmen and Presidential 
 electors by which persons having the right to vote can make that right available 
 to them when it is denied them at the regular poll." Where persons did not pur- 
 sue this course, but organized irregular "outside polls" in addition to those pro- 
 vided by law, the committee refused to count the votes. The minority held that 
 the so-called outside polls were regularly organized by the electors present, under 
 the law of Arkansas, and were, strictly speaking, the only legal polls. The 
 minority, however, proposed to count both polls. 
 
 Gause vs. Hodges, 43d Cong Smith, 305, 319 
 
 Two polls held, and both counted. 
 Where the officers of election refused to open the poll at the proper time, and the 
 friends of contestant organized other polls, at which they cast their votes, and the 
 officers of election later opened polls at the regular place,' the committee in one case 
 counted both polls, and in the other only the poll first opened. In cases, however, 
 where the friends of contestant simply declined to vote, their votes were not 
 counted. 
 
 Patterson vs. Carmack, 56th Cong Report 895 
 
ELECTION. 677 
 
 Bnt one lawful election can be held at the same time and place. 
 There can be but one lawful election held at the same time and same place for the 
 same office. It is well settled that there is no law which authorizes electors who 
 believe that their votes would not be counted at the regular poll to resort to hold- 
 ing an election for themselves at an outside poll. 
 
 Patterson vs. Carmack {minority report), SSth Cong Eeport 895, pt. 2, p. 2 
 
 Failure to open polls not necessarily fatal to whole election. 
 Unless the failure to open polls can be traced to contestee, or it appears that such 
 failure was the result of a design on the part of his political supporters to deprive 
 legal voters of an opportunity to vote for contestant, it will not of itself justify the 
 ordering of a new election. 
 
 Smalls vs. Elliott, 60th Cong Mobley, 672 
 
 If organized by electors, under the law, valid. 
 Where it was provided that if the regularly appointed officers of election do not 
 appear before 9 o'clock any three electors may hold the election, and the regular 
 officers not appearing the electors held the election under the law, but the regular 
 officers opened another poll after 9 o'clock, held that only the votes cast at the 
 first poll should be counted. 
 
 McDuffie vs. Davidson, 50th Cong Mobley, 596 
 
 Where the Federal polls were not opened, by reason of the failure of the managers 
 to act, but the electors, under the law, improvised an election board and cast their 
 votes, the committee unanimously counted the vote. 
 
 Murray vs. Elliott, S4th Cong Report 1567 
 
 Unless voters organize under the law, no remedy. 
 Where the officers of election in certain precincts hold no election and the voters 
 neglect to exercise their right to organize and hold the election, the votes that 
 would- have been cast can not be counted, nor can the general result be affected. 
 
 Bradley vs. Slemons, 4Sth Cong 1 Ells., 312 
 
 Where no election is held votes can not be counted. 
 
 Featherston vs. Cate, 51st Cong Rowell, 111 
 
 Electors declining to vote, result not affected. 
 Where, in consequence of a dispute over the ejection of a person claiming to be an 
 election officer, some members of one party refused to vote, but they could have 
 voted and were encouraged to vote, and there was no definite proof of their num- 
 ber, the committee held that the result could not be affected. 
 Myers vs. Moffett, 4M Cong 2 Bart., 570 
 
 By Ballot (see also Ballots, secrecy op). 
 
 Ulection "by ballot" implies a secret ballot. 
 Where the election is required to be by ballot it is intended " to insure to each elector 
 the privilege of a secret vote," and he can not be compelled to disclose the name of 
 the candidate for whom he voted. Without such disclosure it would be in vain to 
 inquire into his qualifications with a view to purge the polls. 
 
 Easton vs. Scott {committee, overruled hy House) , 14th Cong C. and H., 276 
 
 Viva voce election illegal when required to be by ballot. 
 Where the election was required to be by ballot and the officers sworn, held that the 
 votes cast at an election viva voce, held by fewer officers than the law required, and 
 they not sworn, rejected by the county returning board and a return of them irreg- 
 ularly forwarded to the governor, and by him counted, should be rejected. 
 
 Easton vs. Scott, 14th Cong '. C. and H., 276 
 
 Where, on account of the failure of the election officers to hold an election, the elect- 
 ors did not vote by ballot, but organized and expressed their preference viva voce, 
 held that such election could not be considered. 
 Smith vs. Shelley, 47th Cong 2 Ells., 32 
 
678 DIGEST OF CONTESTED ELECTION CASES. 
 
 Viva Voce (and see all early cases from Virginia and Kentucky. ) 
 
 Votes of deaf aud dumb received. 
 By the constitution and laws of Kentucky all votes were to be given "personally and 
 publicly viva voce." Votes had been cast by persons who were deaf and dumb, 
 but were intelligent and could read and write. Of course they could not literally 
 vote "viva voce." The Kentucky senate had (in the case of Williamsand Mason, 
 printed in C. and H., 802-811) rejected such votes, and the committee at first, by a 
 majority vote, rejected them, but subsequently reconsidered the decision and 
 allowed the votes. 
 
 Letcher vs. Moore, SSd Cong C. and H., 751, 826 
 
 By General Ticket {see also Election laws. ) 
 
 By general ticket, valid. 
 The majority of the committee held that the provision of the apportionment act under 
 the Sixth Census requiring that Representatives should be elected by districts was 
 void because it could not be executed of itself and Congress had no power to com- 
 mand the State legislatures to pass the regulations necessary for its enforcement. 
 The minority held that it was a valid alteration of the election laws of the States, 
 and that if the election laws as so altered could not be enforced without further 
 legislative regulations, the command to the legislatures to enact such regulations 
 came from the words of the Constitution and not from the law of Congress. Four 
 States had elected their Representatives by general ticket, and the majority held 
 that these electiohs were valid, the minority that they were void. The House, 
 without sustaining the reasoning of either report, retained the sitting members in 
 their seats. 
 
 Members elected by general ticket, 38th Cong 1 Bart. , 47-69 
 
 The fact that members were elected by general ticket instead of by districts, held 
 not to invalidate their election. 
 
 Phelps and Cdvanaugh, 35th Cong 1 Bart., 249 
 
 Time of Holding (see .also Irregularities in hours op holding election) . 
 
 Held on wrong day, invalid. 
 The committee held that if the allegation that an election had been held on a different 
 day from that required by law had been sustained the election would have been 
 void; but under a proper interpretation of the law it had been held on the right 
 day, and was legal. 
 
 Tennessee election, 4Sd Cong Smith, 3 
 
 Where the election in a precinct was held the day before the legal day, the com- 
 mittee threw out the vote. 
 Manzanares vs. Luna, 48th Cong Jloblev, 63 
 
 Provisions prescribing, mandatory. 
 "It will not be pretended that the proper construction of an act of Congress is to be 
 determined by tjie voters of a particular district. The provisions of law which fix 
 the time and place of holding elections are mandatory. As to the time of election, 
 the day can not be changed even by the consent of all the voters ( JlcCrary, sec. 114) . 
 Ignorance of the proper time or a misunderstanding of the law on the part of a 
 portion of the electors-will not deprive those who do understand the law and who 
 so act upon the day prescribed by law from their right to vote and control the 
 election." 
 
 Patterson vs. Belford, 4Slh Cong 1 Ells., 59 
 
 Not ordinarily to be changed by general consent. 
 "It is no doubt the rule of the law in regard to elections that the expressed will of the 
 people shall be followed if it be reasonably practicable to construe legal provisions 
 so as to carry it out. It has, however, never been claimed that unofficial commit- 
 tees of political parties could abrogate the official proclamations of State officers, or, 
 in the presence of such official notice to the contrary, condense two elections into 
 
ELECTION. 679 
 
 one. In order to do this it would be necessary to find that the law was clearly in 
 accord with the action of the people contrary to the proclamation, and that the 
 people themselves clearly intended at that tmie to make their action final and 
 conclusive." 
 
 Patterson vs. Belford (Mr. Cox), 45th Cong 1 Ells., 72 
 
 Members can not sit in two Congresses on same election. 
 Where Kepresentatives were elected to Congress in anticipation of the restoration of 
 the right of representation to the State, and that right became effective while the 
 Fortieth Congress was still in session, and the claimants were admitted to that Con- 
 gress, it was held that they could not under the same election be admitted to seats 
 in the Forty-first Congress. 
 
 Georgia, cases, 41st Cong 2 Bart., 596 
 
 In Iowa, on day of Presidential election. 
 The committee found that under the constitution and laws of Iowa (in force in 1860) 
 the day of the Presidential election was the legal day for holding elections for Rep- 
 resentatives in Congress in the years when there was a Presidential election. 
 
 Byingion ys.y^anderer, SVtli Cong 1 Bart., 396 
 
 In West Virginia, in August. 
 
 The old code of West Virginia fixed the election of Eepresentatives in Congress on 
 the same day with the general election, viz, the fourth Thursday in October. 
 The constitution of 1872 was submitted to the people on August 22, 1872, for rati- 
 fication, and in a schedule it was provided that at the same time and places an 
 
 " election should be held "for senators and members of the house of delegates, and 
 all officers, executive, judicial, county, or district, required by this constitution to 
 be elected by the people." After 1872 general elections were to be held on the 
 second Tuesday in October. Congressional elections were held both on August 22 
 and on the fourth Thursday in October. ' A majority of the committee were of the 
 opinion that the October election was valid ; a minority held that the Congressional 
 election was attached to the general election and that the election of August 22, 
 1872, was a general election. Another minority were of the opinion that the elec- 
 tion of August 22 was a special election, and that the Congressional election should 
 have been held on the second Tuesday in October, the day provided for holding 
 general elections in the future. The House admitted the claimants elected at the 
 August election. 
 
 Davis vs. Wilson . . 
 Hagans vs. Martin 
 
 - \4SdCong Smith, 108-130 
 
 In Colorado, according to section 25, Bevised Statutes. 
 "The act of March 3, 1875, which modified the twenty-fifth section of the Revised 
 Statutes so as not to apply to any State vvhose. constitution must be amended in 
 order to effect a change of the election of State officers in such States, in no way 
 related to the State of Colorado." 
 
 Patterson vs. Belford, 45th Cong 1 Ells., 55 
 
 "If Congress could confer on any other body power to repeal an act of Congress, in 
 its discretion, and if such body should fail or refuse to make the repeal, the act 
 would continue in force, just as if the authority had not been given." If it be 
 conceded that the constitutional convention of Colorado had power to fix the time 
 for the election of a Representative in Congress by virtue of the enabling act, yet 
 the said convention not having exercised that power, the act of Congress fixing 
 the election in November must stand and be applicable to the State of Colorado. 
 Patterson vs. Belford, 45th Cong 1 Ells., 57 
 
 In Colorado, November 7, 1876. 
 The committee found that under the Constitution and statutes of the United States 
 the enabling act admitting the State of Colorado, and the constitution of that State, 
 the legal time for holding an election for Representative in the Forty-fifth Con- 
 gress was November 7, 1876, and that the candidate receiving the majority of the 
 votes cast on that day was elected. The minority found that the legal day was 
 October 3, 1876. Mr. Cox, in a dissenting report, held that no legal election had 
 been held or could be held without further legislation by the State legislature. 
 
 Patterson vs. Belford, 4Sth Cong 1 Ells., 52-73 
 
680 DIGEST OF CONTESTED ELECTION CASES. 
 
 Iowa excepted from section 25, Bevised Statutes. 
 The committee held that the State of Iowa v/aa within the exception created by sec- 
 tion 6, chapter 130 of the acts of 1875, excepting from the provisions of section 25 
 of the Revised Statutes (fixing Congressional elections in November) those States 
 "whose constitution must be amended in order to effect a change in the day of 
 election of State officers in said State," and that the election held in October, 1878, 
 was legally so held. 
 
 Holmes and Wileon, 4eih Cong 1 Ells., 329-344 
 
 In State in Rebellion. 
 
 Claimant admitted. 
 Where the loyal citizens of a State in rebellion cast their votes for Representatives in 
 the Congress of the United States, and a claimant showed that he had received 
 some 2,000 votes — all that were cast in his district — and that there was no such 
 armed force in possession of the district as to prevent the loyal citizens from vot- 
 ing, he was admitted to his seat. 
 
 Clements, 37th Cong I Bart., 367 
 
 Where the election was held in form of law in three counties, containing a little over 
 
 one-fourth of the population of the district, but the rest of the district was within 
 
 the rebel lines, the committee came to no conclusion, but the House admitted the 
 
 claimant. 
 
 Segar {second case), 37th Cong I Bart., 414 
 
 Claimant not admitted. 
 Where the State was in rebellion, and the only legal votes claimed to have been cast 
 in the district for Representative in Congress were 10 votes in one precinct, and 
 these votes were not cast in form of law, and what purported to be the return was 
 not certified or properly proved, the claimant was not admitted. 
 
 Upton, S7th Cong I Bart., 368 
 
 Where the whole district, except one precinct, was in the armed occupation of rebels, 
 and the election in that precinct was not held in accordance with law, the claimant 
 was refused admission. If the loyal voters of the district could have freely 
 expressed their choice, the committee would not have held the election invalid 
 because the law was not complied with. But most of the voters had no oppor- 
 tunity for voting or knowledge of the election and could not be held to have acqui- 
 esced in the result, for "acquiescence presumes liberty to protest. In this instance 
 that liberty did not exist." 
 Beach, 37th Cong 1 Bart. , 395 
 
 Where nearly all the district was in armed occupation by the rebels and there was 
 no formal election anywhere, but a few citizens signed a" paper favoring claimant 
 for Congress, he was refused admission. 
 
 Foster, 37 th Cong 1 Bart. , 425 
 
 Where the election was held under the proclamation of military officers, prescribing 
 different qualifications for voting than those prescribed by the con itution and 
 laws of the State, and many of tlie forms of law were not observed and the elec- 
 tion could only be held in four of the eleven counties, the claimants were not 
 admitted. 
 
 McCloud and Wing, 37th Cong I Bart., 455 
 
 Where the whole district was in the possession of the contending armies and only a 
 few precincts were so situated that votes could be cast in them, and the only proof 
 possible of the votes cast at these were unsworn statements and letters, the claim- 
 ant was not admitted. 
 
 Hawkiitx, 37th Cong 1 Bart., 466 
 
 Where the election was held in only two of the nine counties of the district and at a 
 time different from that fixed by the governor, the claimant was not admitted. 
 McKenzie, S7th Cong '. 1 Bart., 460 
 
ELECTION. 681 
 
 Where the counties in which the v-xection was held contained a little less than half 
 the territory and population of the district, and parts of some of these counties 
 were still disputed territory, so that elections could not be freely held, the claim- 
 ant was not admitted. 
 McKenzie vs. Kitchen, 38th Cong 1 Bart., 468 
 
 "Where the vote actually polled was such a minority of the whole vote that it could 
 not be determined that the person selected by that minority was the choice of the 
 whole district, and the absent majority were not voluntarily staying away from 
 the polls, but were kept away by force, then no such selection thus made could be 
 treated as an election." 
 Segar, 38th Cong 1 Bart., 579 
 
 Where the election had been suppressed in nineteenth-twentieths of the district by 
 the orders of the military governor, enforced by the troops under his command, 
 the committee held that the few votes cast in the remainder of the district could 
 not constitute an election. They, however, strongly condemned the action of 
 the military governor. 
 
 Meld, 38th Cong 1 Bart., 581 
 
 Beconstraction by military anthoritiea. 
 The majority favored and the minority opposed the admission of claimants elected 
 in pursuance of a reorganization of the State government, initiated and partly 
 directed by the military authorities. The cases were not reached by the House. 
 
 Bonanza, Field, and Mann, 38th Cong jg g^Jl*'' ^^^"^ 
 
 ELECTION LAWS (see also United States Supervisors and Registration Laws) . 
 
 Power of Congress to alter State election laws for Congressional elections. 
 "The privilege allowed Congress of altering State regulations or of making new ones, 
 if not in terms, is certainly in 'spirit and design, dependent and contingent. If the 
 legislatures of the States fail or refuse to act in the premises, or act in such a 
 manner as will be subversive of the rights of the people and the principles 
 of the Constitution, then this conservative power interposes, and upon the 
 principle of self-preservation, authorizes Congress' to do that which the State 
 legislatures ought to have done." The committee argued that it was never 
 intended that Congress should use its power except in these contingencies, but 
 conceded that the power existed without reference to them. 
 
 Members elected by general ticket, ^8th Cong 1 Bart. , 49-52 
 
 While Congress possesses the power to alter the regulations of the States in regard to 
 
 elections of Senators and Representatives, it has no power to command the State 
 
 legislatures to make such regulations, and any attempted alteration by Congress 
 
 which can not be carried into effect except by auxiliary State legislation is void. 
 
 Members elected by general ticket, S8th Cong 1 Bart., 52 
 
 An alteration of the State election laws made by Congress becomes a part of the laws 
 of the States, and has the same validity as if made by the legislatures themselves. 
 If the laws as so altered can not be executed without further regulations, the State 
 legislatures are commanded by the Constitution, and not by the law of Congress, 
 to enact such regulations. 
 Members elected by general ticket {minority report), S8th Cong I Bart., 61-63 
 
 Laws of Congress engrafted on State laws. 
 "From the moment of the passage of the act of Congress [fixing elections in Novem- 
 ber] it became and was engrafted upon the statutes of every State in the Union, 
 and it required no auxiliary State legislation to give effect to the national statute. 
 But the election laws of the several States which fixed ' the places and prescribed 
 the manner of such elections were not affected, altered, or repealed ; and the national 
 statute fixing the time and the State statutes fixing the places and prescribing the 
 manner of holding the Congressional elections formed a complete election machin- 
 ery for the election of Representatives in Congress," 
 Patterson vs. Belford, 43th Cong 1 Ells., 58 
 
682 DIGEST OF CONTESTED ELECTION CASES. 
 
 State laws for Congressional elciitions do not become Federal laws. 
 State election laws do not become Federal laws when Representatives in Congress 
 are elected under them. "Such an idea is wholly repugnant to the Constitution, 
 which expressly provide.^ that the States may make laws for the election of Con- 
 gressmen, while Congress may make, alter, or amend them." 
 
 Lynch vs. Chalmers {minority report), 47th Cong 2 Ells., 378 
 
 Sta^te laws must not be such as to prevent the execution of the United States super- 
 visors law. 
 The United States supervisors law was enacted by Congress in pursuance of its con- 
 stitutional power to make regulations as to the times, places, and manner of hold- 
 ing elections for Eepresentatives in Congress, or to alter State regulations on. these 
 subjects. From the moment of the enacting of these provisions (February 28, 
 1871) they became a part of the election law of the State of Massachusetts, over- 
 riding all opposing State statutes made or to be made by the State, and the passage 
 of the Statejaw of April 20, 1876, authorizing an aldermanic count, so far as it 
 provided for the taking of the final count of the votes for the Representative in 
 Congress out of the supervision and scrutiny of the United States supervisors of 
 election, was an evasion, if not a nullification, of the Federal law. After Congress 
 had provided for the appointment of two supervisors of election for each voting 
 place, and had required such officers to count the vote for Representative in Con- 
 gress, and to remain with the ballot boxes until the count was wholly completed 
 and the certificates made out, it is not competent for any State to provide another 
 board of canvassers, who may take possession of the ballot boxes, exclude the 
 Federal officers, and secretly count the votes, and declare a different result. 
 Dean vs. Field, 4Sih Cong 1 Ells., 194 
 
 United States supervisors law not an alteration of State laws. 
 The United States supervisors law was not enacted by Congress in pursuance of its 
 power to "make or alter" regulations as to the manner of holding elections for Rep- 
 resentatives in Congress. ' Under it the manner of holding the election is in no 
 way regulated. The supervisors are ap]Dointed by the courts as instruments in 
 the process of "enforcing the right of citizens of the United States to vote in the 
 several States." Tuey are not managers of an election, but guardians and scruti- 
 nizers of an election managed by others, officers of the States. Their duties are 
 confined to the day of election, and the places of holding an election, and a stat- 
 ute providing for a subsequent recount by a board of aldermen is not an interfer- 
 ence with the performance of their duties, and is not in conflict with the Fed- 
 eral law. 
 
 Dean vs. Field {minority report), 45th Cong 1 Ells., 221 
 
 Election law of South Carolina condemned. 
 In regard to the South Carolina election law approved March 1, 1870, the committee 
 said: "The law under which the election was held seems to be well calculate<l to 
 cover, if not to encourage, fraud, inasmuch as it neither requires registration of the 
 voters nor a public canvass of the votes at the close of the polls, but allows the 
 managers of each precinct, or one of them, to retain possession of the boxes con- 
 taining the ballots uncounted for three days, at the end of which time they are 
 required to deliver them over to the commissioners of election for their county, 
 together with the poll list, and these latter officers may retain the boxes for ten 
 days longer before making the canvass. But the committee, having no power over 
 the law, must content itself with siiiiply calling attention to it." 
 
 MrKissiek vs? Wallare, 43d Cong Smith, 99 
 
 Held unconstitutional. 
 The provision of the election law of South Carolina which provides for several ballot 
 boxen, distinguished from each only by the labels, and that no ticket found in the 
 wrong box shall be counted, is prautically an educational test, and is hence in 
 direct violation of the constitution of the State. 
 
 Miller vs. Elliott, 31st Cong _ Rowell, 515 
 
 Validity of Itllssissippi constitution not decided. 
 
 Contestants claimed that section 241 of article 12 of the constitution of Mississippi, 
 adopted in 1892, was void, as being in conflict with the Federal Constitution and of 
 the act of Congress of February 23, 1870, by which Mississippi was readmitted to 
 
ELECTION LAWS. . 683 
 
 representation in Congress. The committee reported: "As the committee are of 
 the opinion that a decision that the constitution of Mississippi was invalid would 
 not necessarily deprive the State of Mississippi of representation in Congress, they 
 do not attempt to decide said question." 
 
 Newman vs. Spencer, 54th Cong Report 1536 
 
 JRatliff vs. Williams, 64th Cong Report 1537 
 
 Brown vs. Allen, 54th Cong Report 1538 
 
 Election law of New York constitntional. 
 Contestant claimed that the election law of New York requiring a candidate for Con- 
 gress to be nominated by a party convention or be petitioned for by a certain per 
 cent of the voters before having his name printed on the ballots was in violation 
 of section 1 of article 14 of the Constitution of the United States, but the commit- 
 tee said that if this were the case the election laws of nearly all the States were 
 unconstitutional. They held the law constitutional. 
 
 Campbell vs. Miner, 54th Cong Report 106 
 
 ELECTIVE FRANCHISE (see also aualifications of Electors). 
 
 A political, not a natural, right. 
 "The elective franchise is a political, not a natural, right, and can only be exercised 
 in the way, at the time, and at the place which may be designated by law." 
 Miller vs. Thompson, 31st Cong 1 Bart., 120 
 
 May be withdrawn by the power which gfave it. 
 The Supreme Court of the United States had decided that the portion of the consti- 
 tution of Missouri prohibiting persons from practicing law who could not take an 
 oath that they had not committed acts of disloyalty was unconstitutional, as being 
 an e.v post facto law. The committee held that the same objection would not apply 
 to the provision depriving these persons of the right to vote, as this provision was 
 not in the nature of a punishment. ' ' Suffrage is a political right or privilege which 
 every free community grants to such number and class of persons as it deems fittest 
 to represent and advance the wants and interests of the whole. No State grants it 
 to all persons, but with such limitations as the interests of all and the interests of 
 the State require. When once granted it is not a vested, irrevocable right, but it 
 is held at the pleasure of the power that gave it, and the State may, by a change 
 of its fundamental law, restrict as well as enlarge it." 
 
 Burch vs. Van Horn, 40th Cong 2 Bart., 209 
 
 ELECTOR. 
 
 (See Qualifications of Electors. 
 
 ELIGIBILITY. 
 
 See Qualifications of Representativiss and Ineligibility. 
 
 ENABLING ACT (see also Utah) . 
 
 Belates back to and legalizes acts of Territorial authorities. 
 "The act of admission into the Union, upon being consummated, relates back to and 
 legalizes every act of the Territorial authorities exercised in pursuance of the orig- 
 inal authority conferred. As the election of Members of this House looks directly 
 to the end in view contemplated by the enabling act of Congress, the committee 
 think it entirely within the scope of action conferred upon the people of the Ter- 
 ritory, and should be respected by Congress." Members thus elected before the 
 admission of the State, and at the election at which the proposed constitution was 
 submitted to the people, were admitted. 
 
 Phelps and Cavanaugh, SBlh Cong 1 Bart., 249 
 
684 DIGEST OF CONTESTED ELECTION CASES. 
 
 ESTOPPEL (see also Agreement, Admission, Waiver, and Suppression of 
 
 Evidence). 
 
 Should not prevent investigation of important matters. 
 The principle of estoppel oujjht not to be applied by the House to prevent the inves- 
 tigation of matters of public importance. 
 Reederys. Whitfield {first case), S4th Cong 1 Bart., 189 
 
 A party can not object to evidence introduced by himself. 
 A tabulated statement of returns, certified by the Secretary of State to the governor, 
 having been put in evidence by the contestant, he was held by the minority to be 
 bound by the whole of it, and could not be heard to object to the counting of cer- 
 tain returns included in it, on the ground that they were not made by the proper 
 officers, though returns of the same sort not included in this statement were 
 rejected. 
 
 Brockenhrough vs. Gihell {minority report) . . . Rept. No. 35, 1st sess. 29th Cong. , p. 15 
 
 By swearing in of contestee. 
 No sort of estoppel can arise from the fact that contestee was sworn in with other 
 members at the beginning of the session. 
 
 Clayton vs. Breckinridge, 51st Cong Rowell, 692 
 
 EVIDENCE. 
 
 Additional. 
 
 Extension of time not to be granted without strong reasons. 
 Without very strong reasons to show the necessity of further proof, the right of con- 
 testing a seat in Congress would be useless and nugatory if postponements and 
 protracted appointments for taking additional evidence after the meeting of Con- 
 gress should be allowed, especially when the parties have already had an equal and 
 sufficient time for taking testimony. 
 
 Newland vs. Oraham, S4th Cong , 1 Bart., 6 
 
 Applications for extension of time looked upon with disfavor. 
 " The House has always discountenanced propositions which favor delay in contro- 
 verted elections, for the reason that this course is harassing and vexatious to the 
 rightful claimant, and encourages parties to look for compensation in proportion 
 to their address in prolonging the contest,' while at the same time inducements are 
 multiplied for the prosecution of contests upon frivolous grounds." 
 
 Williamson vs. Sickles {minority report), 36th Cong 1 Bart., 296 
 
 Extension of'time by agreement of parties disconraged. 
 "One purpose of the statutes of the United States above cited (in regard to the time 
 of taking testimony) was to compel parties to a contested election seasonably to 
 prepare their case, so that it might have an early determination by the House. 
 The practice which has arisen of permitting parties by agreement between them- 
 selves to postpone the time of taking testimony without any previous authority of 
 the House of Representatives, or any express ratification of it by the House, is an 
 indefensible one, and has, in the opinion of the committee, been carried too 
 far. * * * It may happen, indeed, that from unforeseen causes an extension of 
 time may be necessary, and the House of Representatives may not be in session, 
 and therefore no previous application can be made to it, but in such cases, if the 
 parties agree to an extension of time, the agreement should be in writing, signed 
 by the parties or their attorneys, and application should be at once made to the 
 House of Representatives when in session for a ratification of such greement. 
 The evils resulting from permitting the parties, at their own convenience, to regu- 
 late the time of taking testimony, without regard to the statutes or the public inter- 
 
 1 It was customary at this time to allow the contestant, if unsuccessful, the mileage and per diem 
 of a member until the decision of the contest. A sitting member or a successful contestant received 
 no extra allowance for expenses. • • 
 
EVIDENCE. 685 
 
 est, are too seijous and obvious to require comment. * * * We think it of 
 great importance in election cases tiiat parties should understand absolutely that 
 all agreements in contravention of the statutes of the United States, in regard to 
 the taking of testimony, to be considered at all should be in writing, properly 
 signed, and made a part of the record Itself. Even then the policy of the law 
 requires that they should not be regarded unless it appears that they were bona 
 fide entered into for an adequate and reasonable cause to be determined by the 
 House of Eepresentatives, either before or at the time of deciding the election 
 case." Where all the testimony was taken long after the time, the contestant 
 alleging and contestee denying an oral agreement, the committee reported that 
 the case should be dismissed. But they called attention to the fact that the evi- 
 dence, if. considered, would not establish contestant's case. 
 
 0' Hara vs. KUchin, 46th Cong ." 1 Ells. , 378-383 
 
 Application for extension of time should be specific. 
 Where application, supported by affidavits, was made by the sitting member for an 
 extension of the time to take testimony, it was refused on the ground, among others, 
 that "the affidavits relied on are fatally defective in this, that they do not state 
 the names of the witnesses whose testimony is wanted nor the particular facts 
 which can be proven by their testimony." 
 
 OiddingsYS. Clark, 4^d Cong .' Smith, 94 
 
 An affidavit accompanying an application to take further testimony should state 
 specifically the facts expected to be proved, and the witnesses by whom they are 
 to be proved. After the committee has decided against an application and reported 
 the grounds for its decision, it is too late to put in a new application avoiding the 
 decision. 
 Mabson vs. Oales, 47th Cong 2 Ells., 11 
 
 Probable showing mnst be made. 
 "A case should not be reopened unless it appears to the House that on a new hear- 
 ing the contestant would probably be able to produce evidence which would entitle 
 him to his seat." 
 
 Thobe vs. Carlisle, 50th Cong Mobley, 525 
 
 A prima facie case for reopening not to be rebutted by ez parte affidavits. 
 Where & prima facie case is made for the reopening of an election case it can not be 
 rebutted by ex parte affidavits. But a reasonable showing having been made by 
 contestant, he should be permitted to establish his allegations by legal evidence. 
 Thobe vs. Carlisle {minority report) , 50th Cong Mobley, 531 
 
 Allegation that returns in same handwriting refuted by returns themselves, 
 A prima facie case for reopening made by contestant can not be rebutted by ex parte 
 affidavits, but where the chief charge was that a large number of returns were in 
 the same handwriting and the original returns were presented and by their appear- 
 ance effectually refuted the charge, their presentation was not of the same charac- 
 ter as a counter affidavit on a disputed question of fact. 
 
 Thobe vs. Carlisle {Mr. Rowell) , 60th Cong .Mobley, 534 
 
 Beasonable diligence required. 
 - Parties should be bound by a reasonable rule of diligence, and unless it is shown that 
 due diligence has been used an application for an extension of time to take addi- 
 tional testimony will be refused. 
 Mabson vs. Gates, 47th Cong 2 Ells., 8 
 
 -Where the contestant fails to show due diligence in the use of the time allowed him 
 by statute, the committee is not justified m allowing further time. 
 
 Thobe vs. Carlisle, 50th Cong Mobley, 525 
 
 Contestant asked for leave to take further testimony, but as he failed to show that he 
 had been reasonably diligent in procuring testimony within the time, the com- 
 mittee recommended that the application be denied. 
 
 Vanderhwg vs. Tongue, 55th Cong Report, 437 
 
686 DIGEST OF CONTESTED ELECTION CASES. 
 
 Leave to take more testimony refused. 
 Contestant applied for leave to take further testimony on the grounds stated in his 
 notice, and one other, alleging that he had been impeded in taking testimony and 
 his witnesses intimidated by his own arrest for contempt of court, but the com- 
 mittee refused the leave, aa contestant h^d made no attempt to take te.stimony 
 until the last five days of his time, and had not been arrestee! until the time had 
 expired, and was then detained only for a few moments, and as it was very doubt- 
 ful whether he could establish the facts alleged even if the case were reopened. 
 Campbell vs. Miner, 54lh Cong Report 106 
 
 Leave to serve notice denied. 
 The committee' denied the application of petitioner for leave to serve notice of con- 
 test, on the grounds that with reasonable diligence notice could have been served 
 in time; that it did not appear that there was any substantial ground of contest, 
 and that petitioner, not being an inhabitant of the State of Virginia at or near the 
 time of the election, was ineligible. 
 
 McDonald vs. Jones, 54th Cong Report 568 
 
 Insufficient showing made ; leave refused. 
 Where there appeared to be no reason for making an exception of the case, and it 
 appeared from contestant's own showing that if the case were reopened the result 
 of the contest would not be different, the committee refused to open the case for 
 the taking of further testimony. 
 
 Hoge vs. Otey, 54th Cong .• Report 1530 
 
 Sitting member should make stronger showing. 
 Where contestee applied for time to take further testimony, but did not state the 
 names of his informants, the sources of their information, or the parties to an 
 alleged agreement sought to be shown, the committee refused the leave. The 
 sitting member, as the one who would be the beneficiary of the delay, should 
 make a stronger showing. 
 
 Van Horn vs. Tarsney, S4th Cong .- Report 355, pt. 1 
 
 The minority favored reopening the case. 
 
 Van Horn vs. Tarsney, 54th Cong Report 355, pts. 2 and 3 
 
 If alfegation of intimida,tion of witnesses had been sustained, it would have been good 
 ground for reopening. 
 Where contestant asked for a reopening of the case, and that a subcommittee be sent to 
 take the testimony, on the ground that he had been prevented from taking it by 
 riotous and tumultuous conduct, the committee stated that this ground, if sus- 
 tained, would justify granting the petition, but in this case it was not sustained, 
 and they recommended that the application be denied. 
 Hudson vs. McAle'er, 55th Cong Report 354 
 
 Proper manner of procedure if Congress not in session. 
 "The committee are of opinion that if either party to a case of contested election 
 should desire further time, and Congress should not be then in session, he should 
 give notice to the opposite party, and proceed in taking testimony, and present the 
 same and ask that it be received, and, upon good reason being shown, it doubtless 
 would be allowed." 
 
 Vallandigliam vs. Campbell, 35th Cong 1 Bart., 224 
 
 Extension of time to take testimony. 
 Where the sitting member was notified that his seat would be contested, on May 7, 
 but testimony was not taken by petitioner until October 10-22 and there then 
 remained too little time for the sitting member to procure testimony before the 
 s3Ssion of Congress, the committee held that he could not have been expected to 
 take testimony until the petitioner had taken his, and recommended that he be 
 given further time. (There was no law for taking testimony in force at the time. ) 
 But the House refused the request and gave the seat to the petitioner. 
 
 Tallaferru vs. Hiingerford {first contest), IMh Cong C. and H. 248 
 
EVIDENCE. 687 
 
 Additional time granted. 
 Where the. taking of testhnony was interfered with by the presence of the enemy's 
 cruisers, further time was granted. (There was no general law in force for taking 
 testimony at the time. ) 
 
 Bassett vs. Bayley, ISth Cong C. and H., 255 
 
 Case already decided, extension unnecessary. 
 Where the sitting member applied for time to procure further evidence, but the com- 
 mittee decided the case in his favor on the evidence already produced, the applica- 
 tion was rejected as unnecessary. 
 
 Washburn vs. Ripley, Slst Cong 0. and H., 683 
 
 Where notices to take testimony insnfScient, additional time granted. 
 Where notice to take testimony was by inadvertence served on the contestee only 
 nine days, instead of the required ten days, before the taking of the testimony, 
 but under such circumstances that it was impossible for him to appear at its tak- 
 ing, the committee passed a resolution granting further time to take testimony. 
 Archer vs. AUen (first report), 34th Cong Report 8 
 
 Application for extension of time granted. 
 Where notice of contest and answer had been served, but contestant gave no notices 
 to take testimony until the time was more than half gone, and the sitting delegate 
 had gone to Washington and knew nothing of the testimony, the committee were 
 of the opinion that the sitting delegate erred in not having an attorney to repre- 
 sent his interests in the contest of which he had been notified. But as the ques- 
 tion was "not simply what these parties have done or omitted to do, but what 
 was the expressed wish of the people of Nebraska," the committee recommended 
 and the House granted an extension of sixty days. 
 
 Chapman vs. Ferguson, SSth Cong 1 Bart., 268 
 
 Where the county canvassers certified votes as cast for "Member of Congress" 
 instead of "Kepresentative in Congress," and the State canvassers in consequence 
 refused to determine the result in the usual manner or to issue certificates of elec- 
 tion, the contestant, believing that he could not proceed under the act of 1851 until 
 there had been some further determination of the result, did not prosecute his 
 case, but on the meeting of Congress petitioned to be allowed time to procure tes- 
 timony. The committee, without deciding whether or not the case came within 
 the act of 1851, but believing that contestant had proceeded in a bona fide belief 
 that it did not, recommended that the extension be granted. The minority held 
 that the contestant should have proceeded under the law. The House agreed with 
 the committee and granted the extension. 
 
 WiUidmson vs. Sickles, S6th Cong ■ 1 Bart., 288 
 
 Where none of the Representatives from a State had been admitted until near the close 
 of the first session, and the contestant had not served notice of contest on account 
 of an understanding with contestee, the committee recommended that further time 
 be given to serve notice and answer and take testimony. The House took no 
 action. 
 
 Thomas vs. Amell, S9lh Cong 2 Bart., 163 
 
 Where counsel for sitting member had been bribed by contestant to act for him and 
 to refuse to surrender testimony in his possession, the sitting member was given 
 further time to take testimony, and part of the committee were of the opinion that 
 the act of contestant, which would furnish ground for his expulsion if he were a 
 member, would justify a refusal to permit him to proceed with the contest. 
 Bowen vs. De Large, 4^d Cong Smith, 99 
 
 Where the registration, election, and returns were fair and honest "in some if not in 
 a majority of the parishes of the State," the committee did not feel at liberty to 
 declare the seat vacant, though neither contestant had furnished sufficient evidence 
 to establish his right to the seat. The parties were given time to procure further 
 evidence. 
 Sheridan vs. Pinchback, 4Sd Cong ". Smith, 206 
 
688 DIGEST OF CONTESTED ELECTION CASES. 
 
 Additional time refused. 
 Where five months after the election and three months after the inception of the 
 contest, the sitting member asked for time to procure the poll books of several 
 townships, alleging that they were irregular, held that he had already had suf- 
 ficient time, and the application refused. 
 
 Boston ys. Scott, Uih Cong C. and H., 282 
 
 The committee held that the fact that the sitting member was a member of the pre- 
 vious House ar/d in attendance on its sessions during most of the time that testi- 
 mony was being taken was no ground for an application for time to take further 
 testimony, as the law (of 1851) plainly contemplated that the parties might be 
 represented by agents. The fact that contestant had occupied the entire sixty days 
 was also insufficient, as, while the law prevented either party from taking testi- 
 mony in two places at once, it did not prevent both parties from taking testimony 
 at the same time. 
 
 Vallandigham vs. Campbell, S5th Cong : 1 Bart. , 224 
 
 Where contestee applied for further time to take testimony, on the ground that the 
 contestant had introduced his testimony during the last few days of the sixty days, 
 and the most important of it on the last day, and presented ex parte affidavits to 
 show that he could impeach and contradict this testimony, the committee held 
 that he might have taken his testimony within the time, especially as he had ten 
 days' notice of the witnesses to be examined, and recommended that no extension 
 of time be allowed, saying: "To grant such postponements and protracted appoint- 
 ments for taking additional testimony after the meeting of Congress, and after 
 both parties have had equal and sufficient opportunity to present their full case, is 
 practically to nullify the law, to render the right of contesting a seat in Congress 
 useless and nugatory. If such application rests upon no stronger reason than the 
 laches of the party making the same, it should be promptly rejected. To do other- 
 wise is to disregard the rights of parties and constitutents, to trifle with the privi- 
 leges of the House, and to make the labors of your committee interminable and 
 useless. It is due to every interest concerned that the rights in dispute should be 
 settled and parties held to reasonable diligence, under the laws of the land, in the 
 prosecution and presentation of their respective claims." The minority recom- 
 mended that the application be granted, but the House agreed with the majority, 
 and refused to extend the time. 
 Howard vs. Cooper, 36th Cong 1 Bart., 277 
 
 Where contestant applied for further time to take testimonj', he having taken none, 
 alleging as a reason that there were but two judges of the district court in the Ter- 
 ritory and that one of them was inaccessible and the other a violent political 
 opponent, but he had given notice to take testimony before a probate judge, and 
 no reason was assigned for not doing so, the extension asked for was refused. 
 Oallegos vs. Perea, 38th Cong 1 Bart., 482 
 
 The law of 1851 permitting both parties to take testimony at the same time, it was 
 not a sufficient ground for an extension of time that tfie contestant had occupied 
 the entire sixty days, and in this case, it appearing that the sitting member had 
 attended at the taking of testimony only a few minutes and had made no attempt 
 to take testimony himself, the application fo'r an extension of time was refused. 
 The law allowing the House to extend the time for taking supplementary testi- 
 mony "clearly relates to cases in which the applicant has taken some evidence." 
 * * * "The policy of the House has been adverse to granting extensions. Pro- 
 crastination in these cases diminishes the object of the investigation and cheapens 
 the value of the final decision. The law is intended to furnish ample opportunity 
 for taking testimony. Parties should be held to a rigid rule of diligence under it, 
 and no extension ought to be allowed where there is reason to believe that had the 
 applicant brought himself within such rule there would have been no occasion for 
 the application." 
 
 Boles vs. Edwards, 43d Cong Smith, 19 
 
 In a contested-election case the thing in controversy grows daily less, and an exten- 
 sion of the time to take testimony is often practically equivalent to a decision of 
 the case in favor of the sitting member. " It does not follow from these consid- 
 erations that a sitting member can in no case be allowed an extension after the 
 time allowed by law for taking testimony expires, but your committee thinks it 
 
EVIDENCE. 689 
 
 does follow that no such extension should ever be granted to a sitting member 
 unless it clearly appears that by the exercise of great diligence he has been unable 
 to procure his testimony, and that he is able, if an extension be granted, to obtain 
 such material evidence as will establish his right to the seat, or that by reason of 
 the fault or misconduct of the contestant he has been unable to prepare his case." 
 'S. Clark, 4Sd Cong Smith, 92 
 
 Where application was made by the sitting member for an extension of the time to 
 take testimony, on the ground that by a combination among the friends of con- 
 testant to procure indictments of the election oflficera and others his friends had 
 been made afraid to testify, it was refused on the grounds (1 ) that it was so late 
 in the Congress that an extension would practically decide the case in favor of the 
 sitting member; (2) the affidavits merely set forth the conclusions of the affiants 
 that certain indictments were malicious, and not the facts on which the conclu- 
 sions were based, and did not assert that any witnesses had been imprisoned or 
 otherwise placed beyond the reach of subpoena; (3) it did not appear that con- 
 testee had made any attempt to take testimony; (4) no affidavits were produced 
 from the witnesses themselves stating that they had been afraid to testify; (5) 
 intimidation was alleged in only part of the district, and no attempt had been 
 made to take testimony in the remainder, and (6) the names of the witnesses and 
 . the facts to be proved were not given. 
 
 Giddmgs vs. Clark, 4Sd Cong Smith, 92-94 
 
 Admissibility of. 
 
 Beference of a paper does not make it competent evidence. 
 
 "The reference of a paper is not decisive in one way or the other of its competence 
 
 as evidence. That question is always to be decided by the committee and by the 
 
 House." 
 
 Foster vs. Covode {prima fade case, minority report, sustained by the House), 41st 
 
 Cong , 2 Bart. , 525 
 
 Not taken within time required by State law, admitted. 
 Where (at a time when there was no law of Congress in force on the subject) testi- 
 mony was not taken by petitioner until four months after he had giv3n notice of 
 his intention to contest, and the testimony was objected to by the sitting member 
 on the ground that it was not taken within the time prescribed by the State law 
 for contests in the State legislature, and also that the delay of four months was 
 unreasonable, the committee overruled the objections. 
 
 Porterfield vs. McCoy, 14th Cong C. and H., 268 
 
 The rules of evidence, and of construction of the Virginia statutes regarding the 
 qualifications of voters, as adopted in Porterfield vs. McCoy, adopted and applied 
 in the case of — 
 Loyall vs. Newton, gist Cong C. and H., 523 
 
 Taken according to State law, admitted. 
 Where (at a time when there was no law of Congress in force upon the subject) 
 notice was served and depositions taken in accordance with the provisions of the 
 State law, and the depositions were similarly taken by both parties, upon due 
 notice, and in the presence of representatives of both sides, the committee held 
 that they should be admitted. 
 
 Newland vs. Graham, S4th Cong -1 Bart. , 6 
 
 Taken after the time fixed, rejected. 
 Where the committee had fixed January 1, 1834, as the time for closing the taking 
 of testimony, they unanimously decided to reject all testimony taken after that 
 time. 
 
 Letcher vs, Moore, £3d Cong • C. and H., 750, 826 
 
 Taken after the time, inadmissible. 
 Where testimony had been taken after the expiration of contestant's forty days, and 
 over the protest of contestee, the committee held it to be inadmissible, but called 
 attention to the fact that it would not change the decision of the case if admitted. 
 
 Bell vs. Snyder, 43d Cong .". Smith, 257 
 
 H. Doc. 510 44 
 
690 DIGEST OF CONTESTED ELECTION CASES. 
 
 Where all the testimony was taken by contestant out of time, against the protest of 
 contestee, and not cross-examined, the case should bfe dismissed, and if the election 
 needed investigation such investigation should be undertaken by the House. 
 Page vs. Pirce (mirwrUy report) , 49th Cong Mobley, 476-479 
 
 Taken out of time, rejected, even where objection waived. 
 Contestant took testimony more than forty days after the date of service of contes- 
 tee' s answer on him, claiming that the forty days commenced to run with the first 
 day of taking testimony. The committee held that the act approved March 2, 
 1875, conclusively showed that the forty days commenced to run from the day of the 
 service of the answer. "The law is intended to and does furnish ample opportunity 
 for taking testimony if ordinary diligence is used," and the time should not be 
 extended except for good reasons. In this case no good reason was shown, and 
 it appeared that contestant had in fact only consumed eighteen days in taking 
 testimony. Contestee had cross-examined the witnesses, and had only entered 
 objection after all the testimony was taken, and had in his oral argument expressed 
 his willingness to have it considered, but the committee, with only one dissenting 
 vote, excluded it. 
 
 Bradley \s. Slemom, 46th Cong 1 Ells., 296 
 
 In Chief, in Time for Eebuttal. 
 
 Testimony in chief taken in time for rebuttal esclnded. 
 Where testimony was taken under a specification too vague and uncertain to be good, 
 and was taken during the last ten days in a county where contestant had taken no 
 testimony during his time for taking testimony in chief, and the notices to take 
 testimony specified that it was to be testimony in rebuttal, but it was plainly testi- 
 mony in chief, and was objected to at the time, the committee rejected the testimony 
 en these two grounds. 
 
 Bromberg vs. Haralson, 44th Cong Smith, 364 
 
 Where a return was recommended to be rejected for fraud, and only votes proved 
 
 aliunde counted, the minority held that votes proved by the contestant during his 
 
 ten days for rebuttal, no testimony having been taken in regard to them during 
 
 the taking of testimony in chief, or by the contestee, should not be counted. 
 
 Le Moyne vs. Farwell {minority report}, 44th Cong Smith, 423 
 
 Testimony in chief taken in the time for rebuttal should not be considered. So of testi- 
 mony which it does not appear was taken' on due notice, and in regard to matters 
 not mehtioned in the notice of contest. 
 Bisbee vs. Finley {minority report), 47th Cong 2 Ells., 229, 231, 242 
 
 Testimony in chief taken in the time for rebuttal ought not to be received. 
 
 Page vs. Pirce {minority report) , 49th Cong Mobley, 507 
 
 Where contestant, during his testimony in chief, had sought to establish the vote of 
 two precincts by the testimony of United States supervisors, and contestee had 
 introduced testimony to show the correctness of the returns, and contestant, during 
 the time for rebuttal, called the individual voters to testify to their votes, the 
 minority held that this was testimony in chief taken in time for rebuttal, and 
 should be excluded. 
 Miller vs. Elliott {minority report), 51st Cong Rowell, 573 
 
 Testimony in chief taken in time f&r rebuttal should not be considered. 
 
 McDuffie vs. Turpin {minority report), 51st Cong Eowell, 305 
 
 In chief, taken in time for rebuttal, protested against. 
 Where testimony in chief was offered during the time for rebuttal, "when the con- 
 testee had no opportunity to contradict the same," the committee said that it 
 "was offered in open violation of every known principle of the laws of evidence, 
 and we hereby offer our protest against such practice before this committee in the 
 future." 
 Lynch vs. Vandever, 50th Cong Mobley, 659 
 
EVIDENCE. 691 
 
 Testimony in chief, taken in time for rebuttal, not to be received without cause. 
 The rights of the House under the Constitution are not abridged by the act regulat- 
 ing the manner of taking testimony in contested election cases, but each Congress 
 in enforcing those rights will not depart from the terms of the act except for cause. 
 Where no reasons are presented for taking testimony in chief during the time for 
 rebuttal, the committee will not consider such testimony. 
 
 I vs. Parrett, 51st Cong Eowell, 189 
 
 ^ Not considered, 
 Testimony in chief, taken in time for rebuttal, in regard to one county, was not con- 
 sidered by the committee. 
 
 Williams vs. Settle, 63d Cong •. . .Report 337, p. 16 
 
 Evidence claimed to be in chief was taken in the time for rebuttal. The committee 
 seems to have considered it properly rebuttal evidence. The minority strongly 
 objected to receiving this testimony, and brought the matter formally before the 
 House by a motion to recommit, but the motion was lost by a vote of 60 to 131. 
 
 Goodwyn vs. Cohb, S4th Cong Report 1122 
 
 Testimony in chief, taken in time for rebuttal, was not considered. 
 
 Aldrich vs. Rabbins, 66th Cong Report 327 
 
 Before Wrong Officer. (&«aZso Law for taking Testimony.) 
 
 Taken before disqualified officer, inadmissible. 
 Where the testimony in one county was taken before a notary who was a minor, the 
 minority held that it should have been excluded. The majority did not consider 
 it, but left the question open whether it might hav* been considered as taken 
 before a de facto officer. 
 
 WiMiamsys. Settle, 5Sd Cong Report 337, pt. 1, p. 21; pt. 2, p. 8 
 
 Before officer not named in notice, not admitted. 
 Depositions taken under the act of 1797 were excluded, among other reasons; because 
 t^ken before magistrates not named in the notification and not properly certified. 
 McFarland vs. Purviance, 8th Cong C. and H., 132 
 
 Must be^taken before the officer named in the notice. 
 Where notice was given to take testimony before the chief justice of the Territory, 
 "and it was taken before a judge of probate, the majority of the committee were of 
 opinion that the evidence ought to be rejected. 
 
 Otero vs. Oallegos, 34th Cong 1 Bart., 184, and Rept. 90, p. 13 
 
 Must be taken within the time and before proper officer. 
 Where a deposition was taken a month after the expiration of the time allowed 
 under the law of 1851, and before a judge in the District of Columbia, instead 
 of before an officer resident in the District, as required by the law, the committee 
 rejected the deposition. 
 
 Todd vs. Jayne, 38th Cong 1 Bart., 556 
 
 May be taken before probate judge. 
 The probate court in Nebraska Territory is a court of record, and testimony may be 
 taken before a probate judge under the act of 1851. 
 Daily YS. Estabrook, 36th Cong 1 Bart., 306 
 
 Where all testimony taken before unauthorized officer, case dismissed. 
 A case was dismissed because the testimony of contestant was taken before an officer 
 not authorized by law, without the written consent of the parties. "It is insisted 
 that the House of Representatives, in judging of the elections, qualifications, and 
 returns of its members is not bound by the rigid rules of judicial procedure. This 
 is true, but applies only to exceptional cases, not provided for by the 'rules pre- 
 scribed. ' It would, be worse than idle to prescribe rules if they may be willfully and 
 unnecessarily disregarded." 
 Stolbrand Ya. Aiken,47th Cong 2 Ells., 603 
 
692 DIGEST OF CONTESTED ELECTION CASES. 
 
 Taken before officer not anthorized by law, inadmissible. 
 Depositions were held to be inadmissible because taken before a county clerk, an 
 officer not authorized by law to take them, and others because taken in one county 
 before a notary from another county. 
 
 StmeUya. Cabell, 47th Cong 2 Ells., 668, 674 
 
 Officer named in the law derives authority from it and not from State laws. 
 Testimony was objected to because taken before a mayor outside of the city of which 
 he was mayor, the statutes of Indiana empowering the mayor to administer oaths 
 only in the city or town of which he is mayor. "But the committee were of opin- 
 ion that the authority to take these depositions was derived, not from the statutes 
 of Indiana, but from the statute of the United States already cited, the mayor of a 
 city being one of the persons designated in that statute to take such depositions, 
 and that he would have been authorized, as such designated person, to take these 
 depositions had the statutes of Indiana conferred upon him no power to administer 
 oaths." • 
 
 Washburn vs. Voorhees, 39th Cong 2 Bart., 56 
 
 The minority held that the above objection was good, but did not press the point. 
 Washburn vs. Voorhees {minority report), 39th Cong 2 Bart., 66 
 
 Testimony had been taken before a notary resident of the district, but not of the 
 county in which the testimony was taken, and not authorized by the laws of Ala- 
 bama to act in that count)'. The committee held that under the terms of the act 
 of Congress any notary resident of the district was empowered to take any of the 
 testimony, and that the authority of the notary was derived from this act and not 
 from the State law. 
 
 The minority held that he had no power to act. 
 
 Aldrich vs. Robbins, S4th Cong Report 572 
 
 The same ruling made. 
 
 Goodwyn vs. Cobb, 54th Cong Report 1122 
 
 Taken before disqualified notary, received where objection not made. 
 Evidence was taken outside the district before a notary resident of the district, but 
 objection was made on this ground at the taking of the testimony of only one wit- 
 ness. The committee considered the testimony of the others. "As to the others, 
 the absence of objection warrants the inference of consent, and their evidence is 
 legally before the House." 
 
 Goodwyn vs. Cobb, S4th Cong Report 1122, p. 5 
 
 Taken before disqualified notary, received when not objected to in time. 
 Testimony had been taken in New York County before a notary who, by his recent 
 removal from Kings to New York County, had probably technically vacated his 
 office, but no objection to his competency was entered until the taking of testi- 
 mony in rebuttal. The committee held that objection to the testimony in chief 
 was therefore waived, and considered it in evidence. 
 
 Mitchell vs. Walsh, 54th Cong Report 1849 
 
 Transckiption, and Signing of. 
 
 Must be written in presence of magistrate. 
 Testimony which did not appear to be written in the magistrate's presence was not 
 received by the House. 
 
 Jackson vs. Wayne, Zd Cong C. and H., 58, 62 
 
 Must be subscribed by the witness. 
 The committee unanimously adopted as a rule of decision "that all depositions not 
 subscribed by the witness be excluded unless the certificate of a magistrate be suffi- 
 cient according to the laws of Kentucky." The House, which discussed this case 
 in detail, does not appear to have ruled on the point. 
 
 Letcher vs. Moore, SSd Cong 0. and H. 749 826 
 
EVIDENCE. 693 
 
 Hot signed by the witness. 
 A deposition which the witness refused to sign was disregarded by the committee on 
 this ground among others. 
 Noyes vs. Rockwell, 5^d Cong Stofer, 33 
 
 Written out by one of the parties, ezolnded. 
 Under the act of 1797 providing that depositions shoul(i be reduced to writing in the 
 presence of the parties or their agents, depositions written out by one of the parties 
 should be excluded. V 
 
 McFarland vs. Purvmnce, 8th Cong 0. and H., 132 
 
 Tampered with by contestant, should be suppressed. 
 Where the testimony as fast as transcribed was given into the possession of one of the 
 attorneys for contestant, who made marginal suggestions in pencil on it chiefly in 
 regard to the spelling of proper names, and the stenographer afterwards, in some 
 instances, corrected the testimony in accordance with these marginal suggestions, 
 the minority held that a motion to suppress the testimony should have been granted. 
 (The majority had held that there was no evidence that the depositions had been 
 in any sense tampered with.) 
 
 Sessihghaus vs. Frost (minority report), \7th Cong 2 Ells., 403 
 
 Testimony transcribed by contestant, and altered by him, should be suppressed. 
 The minority held that the testimony of contestant should be suppressed on the 
 ground that it was not written out in the presence of the notary, nor forwarded as 
 directed by law, but was copied by contestant and his agents and altered in such 
 a way as to destroy its integrity. 
 
 Mackey vs. 0' Connor {minority report), 47th Cong 2 Ells., 581-592 
 
 Immaterial by whom transcribed, if correctly done. 
 "The provisions of the statute in regard to the form and manner of taking and for- 
 warding testimony in contested-election cases are merely directory" and the only 
 question which the committee deemed it necessary to consider was "whether the 
 essential provisions of the law had been complied with; that is, had the testimony 
 of the witnesses been correctly reported, and had that- testimony been forwarded 
 to the House?" When the evidence was taken down in shorthand the steno- 
 graphic notes were the original evidence of what the witnesses deposed, but it hav- 
 ing been agreed that they should be afterwards transcribed, it was immaterial how 
 or by whom they were transcribed, providing it was correctly done, "since the 
 notary public accepted the work as done by the copyists, and certified to the same 
 as being the depositions taken by him. The fact that the contestant assisted in 
 making transcripts of this evidence does not detract from its correctness." 
 Mackey vs. 0' Connor, 47th Cong. 2 Ells., 566 
 
 Depositions must be written and certified as required by law. 
 Depositions must be properly certified, and it must appear that they were reduced to 
 writing in the presence of the proper officer or they can not be considered. 
 
 Lowe vs. Wheeler [minority report), 47th Cong '....2 Ells., Ill 
 
 Notices to Take Testimony. 
 
 Name of witness omitted from notice to take testimony. 
 Where, by clerical mistake, the name of a witness was left out of the list of notices 
 to take depositions, and the depositions were taken too late to renew the notice 
 and give the required ten days' notice, and contestee insisted on his objection for 
 lack of notice and refused to cross-examine the witness, the committee sustained 
 the objection and excluded the testimony. 
 
 Dodge vs. Brooks, 39th Cong 2 Bart., 83 
 
 Taken upon insufficient notice, not admitted. 
 Notices to take testimony under the act of 1797 were left at the house of the sitting 
 member, but did not reach him (he being at the seat of government) in time for 
 him to attend or appoint an agent. Notices were also left with a person who had 
 previously acted as voluntary agent for the sitting member, but he did not attend. 
 Held, that the depositions should be excluded. 
 
 McFarland vs. Purmance, 8th Cong C. and H., 132 
 
694 DIGEST OF CONTESTED ELECTION CASES. 
 
 Notices to take testimony should specify the names of the voters attacked, and 
 the disqualification charged. 
 General notice that testimony would be taken to prove the disqualification of voters 
 held to be insufficient. It should have specified the names of the voters, and the 
 particular qualifications they were alleged to lack. 
 
 Eastim vs. Scott, Uth Cong O. and H., 284 
 
 Taken on due notice admitted, though not cross-examined. 
 When there was no law in force providing a method of taking testimony in contested- 
 election cases, depositions taken on due and reasonable notice were received, 
 though the sitting member had refused to attend at their taking, believing the pro- 
 ceeding to be illegal. 
 
 Turner vs. Baylies, 11th Cong C. and H., 237 
 
 Where taken on due notice, before officers authorized to administer oaths, received. 
 When there was no law of Congress providing a method of taking testimony in 
 contested-election cases, and a petitioner in Virginia had taken testimony after the 
 analogy of the method provided for contests in the State l^islature, before a com- 
 mission appointed by the court, composed of three justices of the peace or notaries 
 public, and the sitting member had objected to the testimony and refused to attend 
 at its taking, on the ground that the commission, being appointed under a law 
 providing for a different class of contests, had no authority, but had himself taken 
 testimony before two justices of the peace in their capacity as justices, the com- 
 mittee received the testimony of both parties, on the ground that it had been taken 
 on due notice and before officers authorized to administer oaths. (This case has 
 been generally quoted as receiving the testimony of petitioner, because taken 
 according to the law providing for contests in the legislature; but this question 
 seems not to have been considered. The testimony taken by the commission was^ 
 received because its members were justices of the peace, without reference to the" 
 question of its authority as a commission. ) 
 
 Loyall-vs. Newton, Slst Cong _ C. and H., 522 
 
 Law for Taking Testimony. 
 
 Law (of 1851) substantially complied with. 
 Where the sitting member took his evidence before two justices of the peace, the 
 other officers named in the act of 1851 refusing to take his evidence, on the ground 
 that their other official duties would not permit them to do so, it was held that the 
 law was complied with. (The law permitted testimony to be taken before justices 
 of the peace only when no other officer named in the act resided in the district. ) 
 'Harrison vs. Davis, 36th Cong 1 Bart., 341 
 
 The law of 1851 permitted testimony to be taken before justices of the peace only 
 when there were no other officers named in the law resident in the district. In a 
 case from Dakota Territory contestant took his depositions before two justices of the 
 peace, alleging that the only other officers named in the law were the chief justice and . 
 associate justice of the Territory, and that as the families of these officials were 
 domiciled in Iowa, and they themselves only came into the Territory to hold court, 
 they were not residents. "The committee were of opinion that the two justices 
 of the peace, residents of the Territory, were competent to take the depositions." 
 Todd vs. Jayne, 38th Cong 1 Bart., 557 
 
 Law (of 1851) not strictly followed. 
 The act of 1851 gave jurisdiction and authority to justices of the peace only in case 
 none of the other officers mentioned in the act were resident in the district. There 
 were at least three such officers resident in the district, but contestant had had 
 subpoenas diices tecum issued by two justices of the peace, which had not been obeyed. 
 The committee held that he had taken no legal steps to procure the testimony. 
 
 Oirrigan vh. Thayer, SSth Cong 1 Bart., 576 
 
EVIDENCE. 695 
 
 The chief justice of the Territory being required by law to be a resident of the Terri- 
 tory and being actually in the Territory during part of the time that depositions 
 were being taken, the minority held that contestant could not take his testimony 
 before justices of the peace on the pretext that no other officers named in the law 
 were resident in the Territory. 
 
 Todd vs. Jayne {minority report) ^ 38th Cong 1 Bart., 564 
 
 Ex Parte. 
 
 lestimony taken upon unreasonable notice, and ex parte, rejected. 
 Where, at a time when there was no law of Congress in force providing a method of 
 taking testimony, a candidate was notified that, in the event of his being declared 
 elected, his election would be contested, and that depositions would be taken at 
 certain specified times and places, and depositions were taken pursuant to the 
 notices before the declaration of the result, and in the absence of contestee, the 
 committee held that, while the proceeding waa extraordinary, they would, never- 
 theless, have examined the depositions were it not that the times and places of 
 taking testimony were such as to render it physically impossible for the sitting 
 member to attend, testimony being even, in some cases, taken in two remote 
 places at the same time. Under these circumstances the committee rejected the 
 testimony as ex parte. 
 
 Allen, SSd Cong Report 110 
 
 £z parte admitted. 
 
 Ex parte evidence filed by petitioner was excluded by the committee, but appears to 
 have been considered by the House. 
 I/yon vs. Smith, 4th Cong C. and H., 103, 111 
 
 Ex parte admitted where objection substantially waived. 
 Where testimony had been offered by the petitioner and not objected to by the sit- 
 ting member, though he had not attended at its taking, and the testimony, with 
 additional testimony, was lost, the committee permitted it to be retaken, and 
 admitted the second copy, though the fitting member had not attended. 
 Reedys. Cosden, 17th Cong 1 0. and H., 356 
 
 Where both sides present ex parte testimony neither can object to it in the other. 
 Where, on the first trial of the case before the Territorial board of canvassers, the 
 sitting member had presented ex parte testimony, and time being granted to the 
 petitioner to procure testimony, he presented ex parte testimony also, and the case 
 came before the committee, in part at least, on the same testimony, held that peti- 
 tioner could not be heard to object to its ex parte character. 
 
 Biddle and Richard vs. Wing, 19th Cong C. and H., 508 
 
 Ex parte affidavits admitted on question of integrity of transcript of depositions. 
 Where it was alleged that the transcript of evidence had been altered by contestant, 
 the committee received ex parte affidavits on both sides and decided the question 
 upon the preponderance of affidavits. 
 
 Mackeyvs. O'Connor, 47th Covg , 2 Ells., 565 
 
 Ex parte affidavits of little weight, even when admissible. 
 Where the State canvassing board had rejected returns, acting upon ex parte afiida- 
 vits, which were legal evidence before it under the statute, and when the case 
 came before the committee to review the action of the State canvassers these affi- 
 davits were presented as part of the testimony, the committee said: "These affida- 
 vits, if admissible as evidence on the trial of this case upon the merits at all — of 
 which there is great doubt — are entitled to much less weight than testimony regu- 
 larly taken in the presence of both parties, and where the witnesses may be cross- 
 examined." 
 
 Oiddings vs. Clark, 4Sd Cong Smith, 96 
 
696 DIGEST OF CONTESTED ELECTION CASES. 
 
 Ex parte affidavits may be taken as offers of proof. 
 Where petitions, accompanied by ex parte afBdavits, were presented, the committee 
 said: "In determining what should be done with the petitions the undersigned 
 were of the opinion that the affidavits and certificates accompanying the petitions 
 should be regarded as offers of proofs— that is, statements by the petitioners of the 
 facts which they propose to prove— and that the committee should consider whether, 
 if all these statements of facts were taken to be true, the petitions could be main- 
 tained; that if they could not it would not be worth while to ask this House for 
 authority to take testimony on the subject or to talje any other action than to dis- 
 miss the petitions." 
 Holmes and Wilson, 46th Cong 1 Ells., 324 
 
 'Ex parte inadmissible. 
 Testimony taken er parte and without legal notice rejected by the committee. 
 
 Spauldingvs. Mead, 9th Cong C. and H., 158 
 
 Where there was no law providing for taking testimony in contested-election cases 
 testimony taken ex parte was rejected by the committee. 
 McFarland vs. Culpepper, 10th Cong C. and H., 222 
 
 Testimony taken ex parte held to be insufficient. 
 
 Sergeant, 19th Cong C. and H., 516 
 
 Testimony taken ex parte and without sufficient notice was rejected by the commits 
 tee as incompetent, but the parties were given time to retake the same, with addi- 
 tional evidence. 
 New Jersey Case, S6th Cong 1 Bart., 20 
 
 Testimony taken ex parte and without due notice, and after the time fixed by the 
 House, ought to be rejected. 
 Levy {minority report), S7th Cong Report 450, p. 24 
 
 Ex parte affidavits presented after the hearing of the case in the committee were not 
 considered. 
 Blair vs. Barrett, 36th Cong 1 Bart., 314 
 
 An ex parte affidavit taken a year after the close of the time for taking testimony 
 was not considered. 
 Knox vs. Blair, 38th Cong 1 Bart., 526 
 
 An ex parte affidavit taken before a justice of the peace, without notice, and after 
 the death of contestee, was not considered. 
 
 Jones vs. Mann, 40th Cong 2 Bart, 474 
 
 Ex parte affidavits are not evidence and can not be made such by the mere fact of 
 reference to the committee. 
 Foster vs. Covode {prima facie case, minority report, sustained by the House), 41st 
 Cong 2 Bart., 524 
 
 Where a package of testimony was lost in the mails, and the contestant presented the 
 ex parte affidavits of his attorney and the attorney for contestee reciting the sub- 
 stance of the lost testimony, the committee held-that these affidavits could not be 
 considered. 
 
 Wigginton vs. Pacheco, 4Sth Cong 1 Ells., 14 
 
 "There is no law, and no practice of the Committee on Elections, as we understand it, 
 authorizing the use by the committee of ex parte affidavits to determine questions 
 of facts in deciding the merits of an election case. * * * The importance of 
 election cases demands that the testimony should be taken on notice to all persons 
 interested, with the right on their part to cross-examine witnesses and to exhibit 
 testimony in reply so far as their rights may be affected by the inquiry. This may 
 be done (in a case to which the statute for taking testimony does not directly apply) 
 under or after the analogy of the statute relating to contested elections, or by sum- 
 moning witnesses before the committee, or in any other manner the House may 
 direct." 
 
 Holmes and WUstin, 4Sih ( 'oiig 1 Ells., 323 
 
EVIDENCE. 697 
 
 Ex parte affidavits filed by tlie contestant were not considered by the committee, 
 tliere being nothing in the record to justify the resort to this kind of proof. 
 Hill vs. Catchings, 51st Cong : Eowell, 806 
 
 Res Gestae. {See also Declarations of Voters. ) 
 
 Ex parte afSdavits part of the res gestee admitted. 
 ''The law is settled that the declaration of a voter as to how he voted or intended 
 to vote, made at the time, is competent testimony on the point.'' And under this 
 principle the ex parte affidavits of rejected voters, made at the time, and declaring 
 that the voters making them were qualified voters, had been registered and held 
 registration certificates, and that their votes had been refused on account of non- 
 registration, were received (as part of the res gestse) in connection with testimony 
 showing the fact of rejection, icfentifying the affidavits, and showing the circum- 
 stances under which they were made, and other testimony showing that the names 
 had not been struck from the registry list by the board of review during the time 
 that it had power to do so. 
 
 Bellys. Snyder, 43d Cong Smith, 251-253 
 
 Definition of res gestae. 
 The rule for the admission of evidence as part of the res gestx is "that when it is 
 necessary in the course of a cause to inquire into the nature of a particular act or 
 the intention of the person who did it, proof of what he said at the time of doing 
 it may be admitted to show its true character." 
 
 Whyte vs. Harris {minority report), 35th Cong 1 Bart., 265 
 
 Certificates signed by voters at the election received as part of the res gestae. 
 Where, in addition to the votes proved by the testimony of the voters, others were 
 proved by certificates given by the voters on the day of election immediately after 
 voting to tally keepers of their own party, verified by the testimony of these tally 
 keepers, the committee held that these certificates were admissible as part of the 
 res gestse. 
 
 Wise vs. Young, 55th Cong Report 772, p. 13 
 
 "Certificates" violating the secrecy of the ballot should not be received. 
 "Certificates" given by the voters to unofficial tally keepers on the day of election 
 ought not to have been received in evidence ag part of the res gestse: To do so is 
 both contrary to law and public policy. The State of Virginia had passed an Aus- 
 tralian ballot law to insure the voter a secret ballot and to free him from solicita- 
 tions and annoyance. To permit him to be systematically made to disclose his vote 
 after depositing it "is to continue the very evil the law was enacted to cure, to 
 destroy the independence of the voter, and to make a delusion of the secrecy of the 
 ballot box. Such considerations overcome the mere rule of evidence that testimony 
 otherwise hearsay may be admitted as part of the res gestse." 
 
 Wise vs. Young {minority report), 65th Cong Report 572, pt. 2, p. 14 
 
 "Certificates" received. 
 " Certificates " similar to those received in the case of Wise vs. Young in the Fiftj^- 
 flfth Congress were received in evidence in the case between the same parties ni 
 the following Congress. 
 
 Wise vs. Young, 56th Cong Report 186 
 
 Evidence of "list keepers" inadmissible as part of the res gestae. 
 Where the number of votes refused for nonregistration or imperfect registration was 
 very large (over 7,000) contestant attempted to show the names and number of the 
 rejected voters by the testimony of " list keepers," who were stationed at the polls, 
 took the signatures of the voters, or wrote the names at the request of the voters, 
 attached to a printed petition addressed to the House, reciting that the petitioners 
 were legal voters, who attended at the polls, intending to vote for contestant, 
 undertook to vote, and were refused. 
 
698 DIGEST OF CONTESTED ELECTION CASES. 
 
 The majority of the committee held that the testimony was inadmissible, being hear- 
 say and not even a part of the res gestie, and asserted that in this case most of it 
 fell short in one or more particulars of the above description. They refused to 
 count the votes, and reported in favor of contestee. The minority held that the 
 evidence was admissible aa part of the res gestse, and that the introduction of it 
 was merely the choice of weaker rather than stronger evidence, made necessary by 
 the circumstances of the case. They counted the votes and reported for contest- 
 ant. One member held that the evidence did not establish a sufficient tender to 
 count the votes, but did establish the invalidity of the election. The House 
 adopted the last conclusion, and vacated the seat. 
 Johnston vs. Stokes, 54th Cong Report 1229 
 
 Petitions signed by voters at the polls admitted. 
 Where the evidence that voters endeavored to vote and did not succeed consisted 
 , largely of petitions to Congress signed by these voters at the polls, the committee 
 held that these lists were not per se evidence, but might be established as such by 
 oral testimony identifying them as the actual declarations of the voters at the polls. 
 When so established, "these declarations might serve a use beyond a mere list for 
 verification." 
 
 Wilson vs. McLaurin, S4th Cong Report 1566 
 
 Hbahsay. 
 
 Secondary and hearsay inadmissible. 
 " It is well established that the common-law rules of evidence which govern in the 
 courts of law obtain in the trial of cases of contested elections .in this House." 
 Evidence was thrown out on the ground that it was secondary where primary was 
 obtainable, or was hearsay. 
 
 Whatley vs. Cobb, 63d Cong Report 267, p. 2 
 
 Hearsay not admitted to prove bribery. 
 Where a witness swore that he had heard a voter say that he had been hired to vote 
 for the sitting member, the committee decided the evidence both inadmissible and 
 insufficient. 
 
 Arnold vs. Lea, Slst Cong C. and H., 602 
 
 Hearsay, to show minority of voter, rejected. 
 Where a voter had sworn before the officers of election that he was of age, and his 
 vote had been received, but a witness swore that he had, two years before, heard 
 the grandmother of the voter say that he was only 16 years old, the testimony 
 was held to be inadmissible and insufficient. 
 
 Arnold vs. Lea, 19th Cong C. and H., 603 
 
 Hearsay inadmissible. 
 "The rule upon which the committee reject all hearsay evidence they conceive too 
 well settled and too clear and just to require any argument. If all experience has 
 shown that in the administration of justice in the most pettj- and trifling matters 
 between man and man there is no security for truth without the sanction of an 
 oath, everyone must admit that in a controversy which enlists the strongest pas- 
 sions of our nature, often stimulated by ambition and partisan prejudice and ani- 
 mosity, we can not safely dispense with this great security. If evidence of this 
 character were received, it might be manufactured with impunity to any amount, 
 and no Representative would be secure of his seat for a single day." 
 Ingersoll vs. Naylor, S6th Cong ~. 1 Bart., 34 
 
 Where the evidence as to the number of illegal or intimidated votes consisted of lists 
 made by persons hired to canvass the neighborhoods, whose information was 
 hearsay, often several times removed, and whose lists were not always sworn to 
 by the men who made them, the committee were unanimous in disregarding the 
 testimony. 
 
 Whyte vs. Harris, 35th Cong 1 Bart., 257-267 
 
EVIDENCE. 699 
 
 The minority (whose conclusions were substantially adopted by the House) in reject- 
 ing evidence as hearsay, said: "It is such testimony as would be held insuflScient 
 to establish a claim in the most inferior class of civil tribunals, and which, the 
 undersigned think, ought not for a moment to be considered as influential in 
 deciding a case of such magnitude aa the seat of a member and the representation of 
 a people." 
 
 Whyte vs. Harris (minority report) , 3Sth Cong 1 Bart., 264 
 
 Where the testimony of a witness was excluded for lack of sufficient notice and con- 
 testant sought to prove the same facts by a witness who had learned them from the 
 former witness, the committee excluded the testimony aa hearsay. 
 Bodge vs. Brooks, S9th Cong ...2 Bart., 84 
 
 Hearsay evidence should not be considered. 
 
 Donelly vs. WaMmrri. {minority report), 46th Cong 1 Ells. , 472 
 
 "The vicious tendency of hearsay evidence in election cases needs no demonstration. ' ' 
 Wallace vs. McKinley, 4Sth Cong Mobley, 189 
 
 Statements and declarations of other persons, and conclusions of witnesses from these 
 sta,tements or declarations, should be regarded as hearsay, and inadmissible for 
 any purpose. 
 Hurd vs. Romeis, 49th Cong Mobley, 425 
 
 Evidence of acts of a person is not hearsay. 
 "There is a marked distinction between proof of what a party said and proof of acts 
 of the party or facts connected with what he did. In the one case it may be 
 hearsay testimony, in the other it is testimony as to facts which the witness 
 observed, which is just as competent as the testimony of the voter as to facts in 
 which he was an actor." 
 
 Bell vs. Snyder, 43d Cong Smith, 251 
 
 DECLARATION OP VOTERS. 
 
 Hearsay declarations of voters admissible. 
 The minority, in a case where voters had refused to testify how they voted, held 
 that the testimony of a witness who had talked with them, or heard them talk 
 with others, on political questions, and from these conversations believed them to 
 be Whigs, was sufficient to show that they voted for the sitting member. 
 
 Farlee vs. Runk {minority report), S9th Cong Eeport 310, p. 11 
 
 Where the same name appeared twice on the poll list, and a voter of that name, on 
 the day of the election, told a witness that he had voted twice, one of his votes was 
 deducted by the committee. 
 Monroe vs. Jackson, 30th. Cong Report 403, p. 10 
 
 Evidence consisting of the declarations of voters aa to any matter concerning their 
 own voting, is admissible. "It is sometimes treated as an exception to the rule, 
 excluding the hearsay declarations of third persons; but generally it is put upon 
 the ground that in elections, contested because of illegal votes being received, each 
 voter challenged is a party to the proceeding, and, therefore, whatever he says 
 about his own voting is an admission or confession." 
 
 Vallandigham vs. Campbell, 35th Cong 1 Bart, 230 
 
 The declarations of voters as to their disqualifications admitted. 
 
 Blair vs. Barrett, 36th Cong 1 Bart. , 316 
 
 "The declaration of a voter as to his qualification or disqualification to vote is always 
 received in evidence; he is regarded as a party to the proceedings. This is a well- 
 settled and uniform practice." 
 Donelly vs. Washburn {majority report) , 46th Cong 1 Ells. , 449 
 
 The rule in legislative bodies is to admit the declaration of voters themselves, not on 
 oath, as to how they voted. The common-law rule as to hearsay evidence can not 
 be made to apply. (Fully discussed and authorities cited. ) 
 
 Walhxce vs. McKinley { minority report) , 4Sth Cong Mobley, 205, 206 
 
700 DIGEST OF CONTESTED ELECTION CA8E8. 
 
 Hearsay declarations of voters inadmissible. 
 The laws of New Jersey not requiring the poll lists to be preserved, the committee 
 resorted to parol proof to show the fact that voters voted. Mere hearsay declara- 
 tions of the alleged voter, as to the fact of his having voted, were rejected. 
 
 New Jersey case, S6th Cong 1 Bart!, 24 
 
 Where the only evidence to show for which candidate voters alleged to be illegal 
 voted was evidence of statements made by the voters after the election, and the 
 petitioner contended that inasmuch as the election was by ballot and under the 
 State law the voters could not be compelled to testify for whom they voted, this 
 was the best evidence the case admitted of, "the committee deemed this species of 
 evidence inadmissible, and did not, therefore, investigate the votes of the sitting 
 member objected to under this head." 
 Newland vs. Graham, S4th Cong 1 Bart. , -6 
 
 The committee unanimously adopted as a rule of decision "that all declarations or 
 statements made by voters after the election, relative to their right of suffrage, be 
 rejected." The House does not seem to have ruled on the point. 
 Letcher YS. Mowe, SSd Cong : C. xind H., 750,826 
 
 The voter is not a party to the contest in any such sense that his declarations are 
 admissible against his right to vote on that ground. 
 
 Cessna vs. Meyers, 4Sd Cong Smith, 66 
 
 It is doubtful whether evidence of declarations made by a voter not under oath as to 
 how he voted is competent; but if' admitted it can only be when the factthat he 
 voted has been shown aliunde. 
 
 Cessna vs. Meyers, 4^d Cong . . .Smith, 67 
 
 Casual statements made by a voter, and pr6ved by hearsay testimony, are not evi- 
 dence of how he voted. 
 
 Cook vs. Cutts, 47th Cong 2 Ells., 251 
 
 The declarations of voters, made long after the election, are hearsay, and inadmissible 
 for any purpose. If any other position were tenable, an unlawful vote might be 
 cast for one. party and then upon the unsworn statement of the voter it might be 
 deducted from the other party. 
 
 Wallace vs. McKinley, 48th Cong Mobley, 189 
 
 Hearsay declarations of voters inadmissible except when part of the res gestae. 
 What the voter said at the time of voting is admissible as part of the res gestae; but 
 what he said after the day of the election either as to his qualifications, or how he 
 voted, or whether he voted, is inadmissible. "If such testimony can be admitted 
 at all, which we do not concede, it certainly ought not to be received when the 
 statement of the voter is made after the legality of his vote has been called in ques- 
 tion. To admit this kind of testimony is to place it in the power of one not enti- 
 tled to vote to have his illegal vote counted twice against the party he desires to 
 defeat, without subjecting himself to cross-examination, and without even the for- 
 mality of testifying under oath." 
 
 Smith vs. Jackson, Slst Cong Eowell, 27 
 
 Declarations of voters admissible as part of the res gestse. 
 
 admissible in evidence. In voting, or in attempting to vote, or in JDeing present 
 at the polls with the desire to vote, the voter is discharging, or attempting to dis- 
 charge, or desiring to discharge one of the most solemn and momentous duties of 
 citizenship, and to us it seems clear that his every act and word calculated to show 
 in any degree what his purposes or qualifications were, are clearly admissible in 
 evidence as part of the res gestie. This evidence may be furnished by the depo- 
 sitions of others, or by the written statements of others, made at the time, preserv- 
 ing and exhibiting the statements or declarations or admissions, either oral or 
 written, made by the voter or the non voter, as the case may be." 
 
 JolnisUm vs. Stokes, 54th Cong Report 1229, p. 27 
 
EVIDENCE. 701 
 
 Matters of General Knowledge or Inference. 
 
 Printed campaign docnments rejected. 
 Printed campaign documents having nothing to do with the issues of the case were 
 rejected by the committee on the ground of irrelevancy, and also because there was 
 no proof of their publication and no notice of an intention to use them as testimony. 
 Being submitted by the House to the judiciary committee, they were also rejected 
 by it. 
 
 Arnold vs. Lea, Slst Cong C. and H., 604, 607 
 
 Newspaper articles, etc., considered for certain purposes. 
 The committee quoted from the governor's message, the proclamation of the mayor, 
 and the accounts of the election given in nonpartisan newspapers, to show (prelimi- 
 nary to a detailed examination of the testimony) that it was a generally conceded 
 fact that the election in question was marked by riots and violence. 
 
 Whyte vs. Harris {minortiy report), 35th Cong Eeport 538, pp. 10-16 
 
 k 
 Facts of pnblic notoriety taken notice of. 
 
 The committee took notice of facts of public notoriety showing that such a state of 
 violence and intimidation existed at the time of the election as to render a free 
 election impossible and declared the election void partly on this ground. The 
 minority protested that these questions were not raised by either contestant or con- 
 testee, and were not properly before the committee. On the whole case the House 
 sustained the conimittee. 
 Hunt vs. Menard, 40th Cong , 2 Bart., 485 
 
 The Honse may take notice of a notorious fact of public history. 
 The committee unanimously decided that the House could take notice of a fact of 
 public history so notorious as that the so so-called "Lynch board" in Louisiana 
 never had possession of the returns of the election of 1872, and hence could not 
 have canvassed them. A certificate of election shown to be based on the returns 
 of the said board was unanimously rejected. 
 
 Sheridan vs. Pinchback, 4Sd Cong Smith, 197, 227 
 
 Change in political character of vote. 
 Testimony showing a decrease of the Republican vote since the previous election 
 held not to be sufficient of itself to establish the charge that "illegalities were 
 practiced," etc. '- 
 
 Norris vs. Handley, 4^d Cong Smith, 74 
 
 "Contemporaneous historical facts." 
 " The testimony in a case is to be taken in connection with contemporaneous his- 
 torical facts." 
 
 Chalmers vs. Manning, 48th Cong Mobley, 35 
 
 Vote inferred from other elections. 
 Where six parishes had been omitted from the returns as canvassed, and there were 
 indications of fraud in the count in twelve others, and the contestant offered no 
 testimony to sustain them, but offered to have the average vote at the previous 
 and succeeding Congressional elections substituted in these parishes, the commit- 
 tee found that adoptmg this course would still leave a majority for contestant, and 
 reported in his favor. A minority held that he should have offered testimony to 
 rebut the presumption of fraud in these precincts, the report adopted at the pre- 
 vious session having been sufficient notice to him to do so. 
 
 Sheridan YS. Pinchback, 43d Cong Smith, 325, 337 
 
 When fair proportion of both parties vote, great fraud not probable. 
 Where it was charged that large numbers of nonresidents had voted for contestee, 
 but the proof was vague and general, the committee said: "It is clearly estab- 
 lished that since the enfranchisement of the colored voters parties have been 
 divided in this county very nearly on the color line." Comparing the vote for 
 contestee with the number of registered colored voters, and that for contestant 
 
702 DIGEST OF CONTESTED ELECTION CASES. 
 
 with the number of registered white voters, it appeared that a reasonable propor- 
 tion of both votes was cast for the respective candidates. "These facts leave no 
 doubt upon the mind of the committee that the vote was not appreciably swelled 
 by nonresidents voting." 
 Bromberg vs. Haralson, 44th Cong Smith, 366 
 
 How Illegal Votes Cast. {See aim Illegal votes.) 
 
 The fact of voting may be- shown by parol evidence. 
 The poll books need not be presented to prove the fact of voting, but it may be 
 proved by parol evidence alone. "The undersigned are of opinion that the poll 
 lists are not only not the sole and best evidence to prove that a particular person 
 voted, but that they are not themselves sufHcient. Parol evidence of identitj; is 
 always necessary; that the name of the voter is on the list is only corroborative 
 evidence; it is only an item of evidence." 
 
 Vallandigham vs. Campbell, 35th Cong 1 Bart., 229 
 
 General reputation and declarations of voters admitted to show how they voted. 
 Where voters refused to testify how they voted, "the proof of general reputation as 
 to the political character of the voter, and as to the party to which he belonged at 
 the time of the election, has been considered sufficiently demonstrative of the 
 complexion of his vote. Where no such proof was adduced on either side, proof 
 of the declarations of the voter has been received, the date and all the circum- 
 stances of such declarations being considered as connecting themselves with the 
 questions of credibility and sufficiency." 
 
 New Jersey case, S6th Cong - 1 Bart., 28 
 
 How a voter voted may be shown by secondary evidence without first calling the voter. 
 It is not necessary to first call the voter and see if he will claim his privilege of refus- 
 ing to answer before introducing other testimony showing how he voted. Where 
 a witness can not be compelled to answer he need not be called. 
 
 Vallandigham vs. Campbell, SSth Cong 1 Bart. , 231 
 
 Testimony of voter not the only evidence how vote offered to be cast. 
 Where it is charged that votes have been unlawfully rejected at the polls, the depo- 
 sition of each particular voter is not the only competent evidence of the fact of 
 rejection and of the candidate for whom the voter offered to vote. 
 
 Bell vs. Snyder, 43d Cong Smith, 251 
 
 Circnmstantial evidence to show for whom illegal votes cast. 
 "With some diversity in the rulings of courts and of Congress on the subject, the 
 better opinion seems to us to be that the highest and best evidence, outside the 
 record, for whom any elector intended to vote is the testimony of the elector him- 
 self; but where the voting is by the secret ballot the elector can not be required to 
 testify for whom he voted, and if he declines so to testify it is then competent to 
 show by other evidence for whom he voted; but in the latter case the evidence 
 should be of the highest order attainable under the circumstances, and, in legal 
 effect, so clear and strong as to preclude any reasonable doubt as to the fact," 
 Delano vs. Morgan {minority report), 40lh Cong 2 Bart., 178 
 
 Where Democratic tickets were distributed at the poorhouse the evening before the 
 election, paupers were taken to the polls in conveyances furnished by the Demo- 
 cratic committee and in charge of Democratic overseers, and bystanders were of 
 the opinion from the appearance of their tickets that they were Democratic tickets, 
 the committee deducted their votes from the sitting member, who was the Demo- 
 cratic candidate. 
 ■ Monroe vs. Jackson, SOth Cong __ Report 403, p. 8 
 
EVIDENCE. 703 
 
 If voters refuse to testify how they voted, secondary evidence may be admitted; but 
 a foundation must first be laid by calling the voters. 
 Monroe vs. Jackson {minority report), SOth Cong Report 403, p. 19. 
 
 Tesiimony that voters were urged to vote, and their right to vote supported, by the 
 friends of contestee at the polls, and that their votes were challenged and strenu- 
 ously opposed by the friends of contestant, was admitted and held to be sufficient 
 to show that they voted for contestee. 
 
 Vallandigham vs. Campbell, 35th Cong 1 Bart. , 233, 234 
 
 ' ' For whom a vote is given, by the laws of Ohio, is a secret properly known only to the 
 voter himself, and he is never required to disclose it. This fact must therefore be 
 often determined upon circumstantial evidence alone. To what political party a 
 voter belonged, whose partisan he had been, whose friends claimed for him the 
 right to vote at the time, what he said of his intention before and his act after vot- 
 ing are circumstances which * * * the committee have considered in making 
 up their verdict." 
 Delano vs. Morgan, 40th Cong 2 Bart., 169 
 
 Where an illegal voter had always claimed to be a Republican, and a witness testified 
 that he took a Republican ticket from him, "and, to my honest belief, put it in," 
 the committee deducted his vote from the Republican candidate. The minority 
 held the evidence insufficient to show for whom the vote was cast. 
 
 Wlgginton vs. Pacheco, 46th Cong 1 Ells., 10, 29 
 
 When a voter refuses to testify for whom he voted, it is competent to resort to cir- 
 cumstantial evidence, such as that he was an active member of a particular political 
 party. 
 Bishee vs. Finley, 47th Cong 2 Ells., 176 
 
 Where voters can not be found, or refuse to disclose for whom they voted, it may be 
 shown by circumstances, such as previous political affiliations, who challenged 
 them, who sustained their right to vote, who gave them tickets, etc. 
 
 Cook vs. Outts, 47th Cong 2 Ells., 250 
 
 It can not be presumed that because defendant's name was regularly printed on a 
 class of tickets headed "Independent," that any such ticket offered to be voted 
 contained his name unerased', especially when there is evidence that these tickets 
 were very freely "scratched." There should be the evidence of persons voting, or 
 other satisfactory evidence. 
 McLean vs. Broadhead, 4Sth Cong Mobley, 384 
 
 When it appears that the name of a candidate was regularly printed on a certain 
 class of tickets destroyed by the precinct officers, it will be presumed that his name 
 was upon any such ticket voted, until the contrary appears. 
 McLean vs. Broadhead [minority report), 4Sth Cong Mobley, 394 
 
 In the absence of direct proof as to how a voter voted, evidence showing to what 
 political party he belonged, whose election he advocated, whose friends sustained 
 his right to vote, and kindred testimony may be admitted. 
 Smith vs. Jackson, 51st Cong Rowell, 27 
 
 Where voters "either testified themselves for whom they voted, or it was shown 
 satisfactorily that they were pronounced in their political opinions at the time of 
 the election, or that they declared on the day of election which ticket they had 
 voted, or that they were accompanied to the polls by well-known party workers, or 
 that their votes were challenged by the supporters of one and their right to vote 
 defended by the supporters of the other ticket, or like circumstances, raising a 
 strong and legal presumption as to the ticket they voted and the candidate for 
 whom they voted," the minority held the evidence to be sufficient. But where the 
 evidence was merely to the effect that the voters were reputed to be Republicans or 
 Democrats, but it did not appear when they had expressed themselves, or what 
 opportunities the witnesses had of knowing their preference, it was held not to be 
 sufficient, especially as at the election of 1888 large numbers of voters had changed 
 their preference from what they were at previous elections. 
 Atkinson vs. Pendleton {minority report), 61st Cong Rowell, 64 
 
704 DIGEST OF COKTESTED ELECTION CASES. 
 
 / 
 Where colored vote generally cast for contestee, colored votes illegally cast presumed 
 to have been cast for contestee. 
 
 Where there is general evidence that the colored vote of a county -was cast for con- 
 testee,- and a large number of names are found on the poll books as having voted, 
 which are also found on the list of colored persons delinquent in the payment of 
 the poll tax required by law as a condition of voting, there should be deducted 
 from the vote of contestee a number equal to the number of such names less the 
 number of legal tax receipts shown to have been issued and paid for subsequent to 
 the preparation of such delinquent tax list. 
 
 O'Ferrall vs. Paul, 48th Cong Mobley, 114 
 
 Secondary. 
 
 Where best evidence unavailable, secondary evidence admitted. 
 Where contestant showed that he had made a diligent effort to procure the parish 
 returns, and failed, he was permitted to show their contents by other evidence. 
 And proof that they were correctly tabulated in the returns of a State returning 
 board of doubtful authority whose returns were before the committee, was consid- 
 ered sufficient, especially when the fact was conceded by contestee. 
 
 Sheridan vs. P'mchhack, 43d Cong Smith, 323, 324, 325 
 
 Secondary evidence not admissible to show what should be shown by poll books. 
 The primary evidence of the number of votes cast for the candidates and the fact of 
 the casting of any particular vote is the poll books, and while these are in exist- 
 ence no secondary evidence of the facts can be received. 
 
 Vallandigham vs. Campbell {minority report), 35th Cong 1 Bart., 240 
 
 Parol evidence of contents of papers inadmissible when papers should be presented. 
 Where a witness testified that he had compared the poll lists, registry lists, and lists 
 of persons struck from the registry lists of a county, and presented a list of names 
 which he said were found on the poll lists but not on either of the other lists, the 
 committee held that "these statements made by the witness are inadmissible. 
 The papers themselves are the best and only evidence of what they contain, if they 
 are admissible for any purpose. The committee must make the comparison, and 
 can not take the statements of the witness as to the result of his comparison." 
 
 Finley vs. Bisbee, 45th Cong 1 Ells., 74-124 
 
 Testimony of persons who have examined the ballots not to be substituted for the bal- 
 lots themselves. 
 Where votes were proved to have been illegal, but the evidence that they were cast 
 for contestee was the testimony of persons who had compared the numbered bal- 
 lots with the poll lists, the ballots themselves not being produced in evidence, the 
 evidence was considered insufficient to justify the deduction of the votes from the 
 vote of contestee. 
 
 Gooding vs. Wilson {minority report), 4£d Cong Smith, 87 
 
 Boundaries of city wards not proved by common repute. 
 Common repute and generally acknowledged boundaries are sufficient to prove the 
 boundaries of country precincts, but the boundaries of city wards, when dispute 
 arises about them, ought to be proved by better evidence. 
 Atkinson vs. Pefndleton, 51st Cong Howell, 56 
 
 Best evidence required. 
 Each party should be required to produce the highest and best evidence attainable. 
 McDuffie vs. Turpin {minority report), 61st Cong Rowell, 803 
 
 Testimony of inspectors competent to show mistake. 
 
 The testimony of inspectors is competent to show mistakes committed by them in 
 making their returns. 
 Adams vs. Wilson, 18th Cong 0. & H., 375 
 
EVIDENCE. 705 
 
 Testimony of connty canvassers best evidence of reasons for their action. 
 Where the commissioners of election in the various counties of the district had 
 thrown out a large number of returns for irregularities, thereby changing the result 
 of the election, the committee held that these commissioners should have been 
 called to explain the reasons for their action, and that all other evidence was sec- 
 ondary and probably hearsay. The committee, however, considered the other 
 evidence, and when it was clear enough to overcome the presumption of correct- 
 ness of the commissioners' actions, counted the returns. 
 
 Goods vs. Epes, 63d Cong Report 1952, p. 3 
 
 In other proceedings. 
 
 Taken in another proceeding, inadmissible. 
 A judge having been impeached by the legislature of Georgia for fraudulent conduct 
 affecting a county return, which fraud was also among the grounds of a contest for 
 a seat in Congress, the House refused to receive the proceedings of the legislature 
 as evidence. 
 
 Jackson vs. Wayne, Sd Cong 0. & H., 50, 65 
 
 " The contestant * * * is clearly entitled to have the contest decided on what 
 is shown in the record in this case." 
 
 Sheridan vs. Pinchback, 4Sd Cong Smith, 327 
 
 Where the record in a case between parties candidates at the same election with con- 
 testant and contestee, brought to test the validity of the election, but to which 
 neither of the parties to the present case waa a party, was offered in evidence, it 
 was unanimously excluded by the committee. 
 Spencer vs. Moray, 44th Cong Smith, 444, 461 
 
 The result of a trial in a criminal case where parties were charged with election 
 frauds is not an adjudication binding on the House in a case involving the same 
 frauds. 
 
 Clayton vs. Breckinridge, Slst Cong Eowell, 689 
 
 The minority held that the fact that persons had been acquitted in the State courts 
 of the charge of election frauds, and convicted only on the charges of technical vio- 
 lations of the law, while not an adjudication binding on the House or interfering 
 with its exclusive jurisdiction in election contests, was yet, under the circumstances 
 of this case, conclusive proof that the persons accused had committed no fraud. 
 Clayton vs. Breckinridge {minority report), Slst Cong Eowell, 725 
 
 Beports of committee of State legislature not evidence. 
 The reports of a committee of the Arkansas legislature, and of a case in the supreme 
 court of the State, were unanimously held not to be evidence, both as not being a 
 proceeding between the same parties and as being inconsistent with the duty of 
 the House to judge of the elections of its own members. 
 
 Boles vs. Edwards, 42d Cong Smith, 58 
 
 Testimony taken before Senate committee considered. 
 The committee unanimously received as evidence testimony taken by the Senate 
 Committee on Privileges and Elections during the preceding Congress, though 
 neither of the parties to the present case was directly a party to that, and the 
 question which of them was elected to Congress was not directly or indirectly 
 before the Senate committee. The majority received it "for what it was worth," 
 and the minority said, "We consider it not only as admissible evidence, but abun- 
 dantly sufficient to determine the rights of the parties to this contest." The com- 
 mittee also received the President's message on Louisiana affairs to the preceding 
 Congress, and the reports, with accompanying exhibits, of the chief supervisors of 
 election in the State of Louisiana. 
 
 Sheridan vs. Pmchback, 43d Cong Smith, 198-200, 232-235 
 
 H. Doc. 510 45 
 
706 DIGEST OP CONTESTED ELECTION CASES. 
 
 Testimony in a proceeding before a State court partly admitted. 
 Where some of the issues in a case had been involved in preliminarj' proceedings 
 before the courta of California, and much of the evidence presented consisted of 
 transcripts of those proceeding, the committee excluded such portions as were 
 ex parte affidavits. iBut one affidavit having been included by the contestee in a 
 petition, sworn to by himself, for a mandamus on the secretary of state, itwas 
 claimed that he was estopped from objecting to its use as evidence. The committee 
 did not decide this point, but discussed the effect the affidavit would have if 
 admitted. Mr. Springer, in a dissenting report, held that the affidavit was ad- 
 missible. 
 
 Wigginton vs. Pacheco, 4Sth Cong 1 Ells. , 8, 20 
 
 DOCUMENTAKY. 
 
 Such as proves itself, may be introdnced at any time. 
 Such documentary evidence as proves itself may be admitted at any time. The pro- 
 vision of the law of 1851 limiting the taking of testimony to sixty days "was in- 
 tended to apply and does apply solely to the testimony of mtnesses, or at most to 
 such writing as can be proved only by the examination of witnesses; and that 
 documentary evidence, at least that which proves itself, may be obtained at any 
 time -after the sixty days and produced before the committee at the hearing." 
 An abstract of the votes returned in the district, duly certified from the office of the 
 secretary of state, was received as evidence by that portion of the committee whose 
 recommendations were adopted by the House, though not presented until the 
 hearing before the committee. A minority held it to be inadmissible. 
 
 VaUandigham vs. Campbell, SBth Cong 1 Bart., 229 
 
 May be obtained at any time, without notice. 
 An abstract of votes, certified by the secretary of the Territory, is competent evidence 
 of the result of the election. It may be obtained at any time, and no notice need 
 to be given to the opposite party. 
 
 Daily vs. Estabrook, 36ih Cong 1 Bart., 305 
 
 Authenticated by seal, may be introduced at any time. 
 Records duly authenticated by a seal may be received as evidence at any time, 
 without being first introduced before the magistrate who takes and certifies the 
 depositions. 
 
 Cannon vs. Campbell {Mr. Calkins) , 47th Cong 2 Ells., 607 
 
 Informality in certification subsequently cured. 
 Where the returns, poll books, and other documentary evidence were objected to as 
 not properly certified, or as certified by the wrong officers, the committee overruled 
 most of the objections, and cured the rest by procuring other and more perfect 
 certificates. " It is record evidence, and therefore admissible to correct any infor- 
 malities in the proof previously made." 
 
 Ooodwyn vs. Cobb, 54th Cong Report 1122, p. 4 
 
 Must be introduced like other evidence. 
 Documentary evidence (under the law of 1857) can only be introduced before the 
 officers authorized by the law to take testimony, and within the legal time. 
 
 VaUandigham ys. Campbell {minority report), 35th Cong 1 Bart., 238 
 
 The statute in regard to taking depositions in election contests is mandatory and 
 applies to record evidence attested under seal, as well as to depositions of witnesses 
 and exhibits requiring identification. 
 
 Cannon vs. Campbell {Mr. Thompson) , 47th Cong 2 Ells., 615 
 
 Extra-official note on returns, by county clerk, not evidence. 
 Where the vote of townships was objected to on the ground that the township returns 
 were unsigned, or did not show that the officers were sworn, or were not dated, 
 and the only evidence of these facts was an extra-official note made by the county 
 clerk in the county abstract of votes. Held, that the evidence was insufficient. 
 
 Boston vs. Scott, 14th Cong C. & H. 280 
 
EVIDENCE. 707 
 
 Extra-official notes on papers uot^ evidence. 
 The minutes of a county board of canvassers in Florida, or the reasons given by them 
 in their certificate for rejecting the vote of a precinct, are not of such oflBcial char- 
 acter as to make them evidence. 
 
 Mnletj vs. Walls, 44th Cmg Smith, 376 
 
 Certificate of prothonotary, to election documents, as evidence. 
 The committee rejected a large number of votes upon the certificate of the prothono- 
 tary to copies of all the election papers in his oflSce, such papers showing, by 
 comparison, that the names of the voters in question were on the poll lists, but 
 were not on the registration lists, and there being no affidavits of qualification on 
 file. The minority denied that the certificate of the prothonotary to copies of the 
 election papers on file in his oflice on a certain date was sufficient evidence that no 
 other papers had ever been filed, and still less could it establish the conclusion that 
 no such affidavits had been made by the voters at the polls. 
 
 Craig vs. Stewart, S3d Cong Stofer, 9; 19 
 
 County clerk can certify to copies of papers, but not to matters of fact. 
 Where the law requires the oaths of election officers to be filed with the county clerk, 
 the certificate of the clerk is competent to authenticate copies of these documents, 
 but he should be examined on oaib to show facts derived from these documents, or 
 to negative their existence. 
 
 Goggin vs. Gilmer, fSth Cong 1 Bart., 72 
 
 County clerk can not certify to a matter of fact. 
 Where the county clerk certified on his abstract of precinct returns that no poll books 
 had been returned to him from certain precincts, the committee held that this cer- 
 tificate was not evidence of the fact. If it was a fact it was not a fatal irregularity. 
 Bennet vs. Chapman, 34th Cong , 1 Bart. , 206 
 
 Must be certified by proper officer, 
 A transcript certified by the prothonotary of one county can not be admitted to 
 prove the votes of another. 
 Fuller vs. Dawson, 39th Cong 2 Bart., 132 
 
 Nothing but copies can be proved by certificate. 
 "A certified computation, and not a certified transcript of any official writing author- 
 ized by law" is not competent evidence. 
 
 Fuller vs. Dawson, 39th Cong 2 Bart., 134 
 
 Only facts legally required to be certified to can be proved by certificate. 
 "The law is entirely settled that statute-certifying oflScers can only make their cer- 
 tificates evidence of the facts which the statutes requires them to certify; that 
 when they undertake to go beyond this and certify other facts they are unofficial 
 and no more evidence than the statement of any unofficial person." 
 
 Swilzler vs. Anderson {majority report) , 40th Cong = 2 Bart., 378 
 
 Certificates to copies of papers strictly construed. 
 Papers certified to be "true copies of the poll books, tally paper, and return of the 
 election" on which the certificate of oath of judges and clerks was missing or 
 irregular were not taken as evidence that the same irregularity existed on the 
 origmal papers, as the words of the certificate did not exclude the idea that this 
 certificate might have been omitted or incorrectly copied. 
 
 Koontz vs. Coffroth, S9th Cong 2 Bart., 147 
 
 Only matters required to be of record can be proved by certificate. 
 The law of Florida required the county commissioners to strike oft or erase from the 
 registry list, before the election, the names of such persons as were known or 
 should be proved to have died or ceased to reside permanently in the places where 
 they were registered. Part of the evidence introduced in a case consisted of 
 copies, certified by the county clerks, of the registry lists, and also of the names 
 which had been struck off from the lists. The committee held that the names 
 struck off had ceased to be a part of the record, and could not be proved by 
 
708 DIGEST OF CONTESTED ELECTION CASES. 
 
 certificate. A similar ruling was made as to the words "not sworn" found on the 
 poll lists after the names of some voters. The minority held that as the names 
 struck off were not obliterated, but were merely lightly struck through with a pen 
 or had the word "died," "removed," etc., written after them, they were still so 
 far a part of the record as to be capable of being proved by the certificate of the 
 clerk. 
 Mnlei/YS. Bisbee, 45th Cong 1 Ells., 94-96; 117 
 
 Master rolls as evidence. 
 The committee held that the muster rolls on file with the Adjutant-General, at 
 Washington, as well as those kept with the regiment and those in the office of the 
 adjutant-general of Missouri, were each original copies, and that sworn copies of any 
 of them were admissible. They were held to be prima fade evidence of the age of 
 the soldiers, and, when made about the time of the election, of the persons constitut- 
 ing the regiments, but not to be evidence of residence, and, when made a year or two 
 before the election, not to be evidence of the persons forming the regiments. 
 
 Knox vs. Blair, S8th Cong 1 Bart., 528 
 
 Land lists in Virginia. 
 Undei- the Virginia law, permitting only freeholders of six months' standing to 
 vote, the land lists of the previous year are prima facie evidence of the right of per- 
 sons to vote, conclusive only in the absence of ail other evidence, and capable of 
 being overthrown by other evidence. But the House rejected the report of the 
 committee, and seems to have taken the list as conclusive. 
 
 Taliaferro vs. Hungerford {1st contest) , l^th Cong-. 0. &" H. , 246 
 
 Under the Virginia law, permitting only freeholders of six months' standing to 
 vote, the land lists avq prima fade evidence of the right to vote, but may be rebutted 
 by other evidence. 
 
 Taliaferro Vs. Hungerford {Sd contest), 13th Cong 0. & H., 252 
 
 Under the Virginia law, requiring a freehold estate as a qualification for voting, the 
 land lists, or certified copies of them, are satisfactory evidence of the qualification 
 or disqualification of voters unless disproved by other evidence. 
 Forterfkld vs. McCoy, 14th Cong C. and H., 270 
 
 Where, under the Virginia law requiring a freehold estate in land as a qualification 
 for voting, votes were attacked because the names of the voters were not found on 
 the land lists, the committee received parol testimony to show that such voters 
 were in fact qualified, but expressed the opinion that the reception of such testimony 
 was not in accordance with the rule of law that the best evidence the case admits 
 of should be required. If this rule had been followed and only documentary evi- 
 dence admitted a still larger majority for petitioner would have been shown, and 
 the rule of law seems to have been relaxed for the purpose of showing that, on the 
 state of the case most favorable to the sitting member, petitioner would still have 
 a majority. 
 Loyall vs. Newton, 31st Cong C. and H.,523 
 
 Tax lists in North Carolina, not conclusive. 
 Where, in North Carolina, there were more names on the list of voters than were on 
 the tax list, but it appeared that persons had the right to vote, under the State 
 laws, who had at any time paid taxes, held, that the tax lists were not conclusive 
 evidence of what persons were entitled to vote. 
 
 McFarland vs. Purviance, 8th Cong 0. and H. 133 
 
 Certified copies of original returns evidence of their contents in Mississippi. 
 The committee counted returns rejected by the county commissioners because no list 
 of voters accompanied them, or for similar irregularities. The certificate of the 
 commissioners as to the number of votes p« rejected, and copies of the original 
 returns certified by the clerk of the chancery court (in Mississippi) , were held to be 
 sufficient evidence of the contents of the returns. 
 
 Lynch va. Chalmers, 47th Cong 3 Ells., 357 
 
EVIDENCE. 709 
 
 Certified copies of returns not in official custody of certifying officer not evidence. 
 A certified transcript of a rejected return, made and certified by a chancery clerk 
 (in Mississippi), there being no law requiring such returns to be kept on file as 
 official records by this officer or any other, is not evidence. 
 Lynch vs. Chalmers {minority report), 47th Cong 2 Ells., 362 
 
 County court, in West Virginia, authorized to make a record. 
 The county court in West Virginia has the power to make a record of its proceedings 
 in regard to elections. "There is inherent in every such tribunal, and necessarily 
 incident to its very purpose and existence, the power to make such a record as 
 will perpetuate and make available its legitimate action." And, aside from gen- 
 eral principles, it appears from an examination of the legislation of West Virginia 
 on the subject that the county court is more than a mere returning board. 
 
 Smith vs. Jackson, 51st Cong Eowell, 18 
 
 Board of supervisors, in California, authorized to keep a record. 
 The board of supervisors provided for by the statutes of California is an official body, 
 required to keep a record, and this record, duly certified, imports verity, and must 
 staiid until shown to be incorrect. 
 
 Wigginton vs. Pacheco, 45th Cong 1.1 Ells., 7 
 
 Weight op 
 Tague opinion insufficient. 
 The opinion of witnesses that a larger number of votes are returned as cast than 
 there were voters present at the election is not sufficient to rebut the presumption 
 that the officers did their duty. 
 McBuffie vs. Davidson, 50th Cong Mobley, 597 
 
 Evidence sufficient to shift burden of proof conclusive unless rebutted. 
 ' ' When the legality of votes is assailed, upon notice and answer, and the issue formed, 
 that issue is to be fairly heard and tried upon evidence. When one party intro- 
 duces apparently credible evidence, sufficient of itself to maintain the issue, the 
 opposite party is called upon to meet it, and if he does not do it with the means 
 at hand there can be but one reasonable conclusion, and that is that there was no 
 answer to it." 
 
 Wallace vs. McKinley (minority report), 4Sth Cong Mobley, 207 
 
 Insufficient notice of election not proved. 
 Where there was proof that notices were put up the day before the election, but no 
 proof that these were the first notices, the committee held that the fact of insuf- 
 ficient notice was not proved. 
 
 Morion vs. Daily, 37lh Cong 1 Bart., 410 
 
 Testimony of a conspirator must be corroborated. 
 "The testimony of a conspirator swearing to his own infamy and implicating others 
 in the same crime is always jealously scrutinized, and unless corroborated m mate- 
 rial points by evidence coming from uncontaminated sources can not generally be 
 received as sufficient to establish a litigated fact. And if, in addition to this, such 
 conspirator declines to submit to a full, thorough, and Beaching cross-examination 
 upon the whole subject-matter testified to by him in his examination in chief, this 
 circumstance casts additional suspicion upon his testimony; and if to this be also 
 added the fact that such conspirator is at the time he so testifies the paid agent of 
 the party producing him in ascertaining and arranging the evidence for his employer, 
 this circumstance is one calculated to cast additional doubt and suspicion upon his 
 testimony. There was a period in the history of American and English jurispru- 
 dence when the paid attorney or counsel of a litigant party would not be heard to 
 testify on behalf of his client." 
 
 Bromherg vs. Haralson, 44th Cong Smith, 358 
 
 Where the testimony of fraud was the testimony of the State registrar, testifying that 
 he himself procured it to be committed, but the testimony was not sufficiently 
 corroborated by that of his subordinates, and the Federal supervision of the Con- 
 gressional election rendered it incredible that such fraud could have been commit- 
 
710 DIGEST OF CONTESTED ELECTION CASES. 
 
 ted at that election at least, a majority of the committee held that the testimony 
 was insufficient to establish the fraud. A minority held that it would be sufficient 
 in a criminal court to convict an accomplice of crime, and if not sufficient in this 
 case to give the seat to the candidate, against whom the fraud was committed, it 
 was certainly sufficient to justfy refusing it to the candidate in whose favor it was 
 committed. 
 SheridanYB. JPinchback, 43d Cong Smith, 326, 337 
 
 "Coached" evidence disregarded. 
 Where contestee called a large number of colored witnesses to testify that they voted 
 for him, but their answers were uniform and appeared to be "coached," the com- 
 mittee disregarded their evidence. 
 
 Aldrich vs. Underwood, 64ih Cong Beport 2006, p. 12 
 
 For evidence required to set aside a return, see Eeturn Impeachment of. 
 
 For evidence of vote when returns impeached, see Return, when Impeached what 
 
 Votes Counted. - 
 
 For amount of evidence required to prove a vote illegal, see Illegal \ otes, and Votes, 
 
 Presumption of Legality. 
 For evidence required to prove bribery, fraud, intimidation, etc. , see under these heads: 
 
 Suppression of. See Suppression op Evidence. 
 
 EXECUTIVE. 
 
 See Governor. 
 
 EX PARTE AFFIDAVITS. 
 
 See Evidence, Ex Parte. 
 
 EX POST FACTO LAW. 
 
 See Elective Franchise. 
 
 EXPULSION.i 
 
 To be inflicted only for causes related to dnty of member. 
 
 "Neither House ought to expel for any cause unrelated to the trust or duty of a 
 member. ' ' 
 Roberts, 56th Cong Report 85, p. 46 
 
 The right to expel is absolute. 
 The right to expel a member is absolute, limited only by the condition that it must 
 be exercised by a two-thirds vote. "The power of exclusion is a matter of law, to 
 be exercised by a majority vote, in accordance with legal principles, and exists 
 only where a member-elect lacks some of the qualifications required by the Con- 
 stitution. The power of expulsion is made by the Constitution purely a matter of 
 discretion." 
 Roberts {minority report), 56th Cong Report 85, part 2, p. 77 
 
 A member meriting expulsion refused readmission after reelection. 
 A Representative who had saved himself from expulsion by resigning while the ex- 
 pulsion resolution was pending, and was reelected at a special election, was refused 
 admission without referring the case to any committee or hearing further tes- 
 timony. 
 
 Whittemore, 41st Cong. (See Roberts, 56th Cong. ) 
 
 iThis "digest" does not profess to cover the expulsion cases, and refers to questions of expulsion 
 only as they come up incidentally in connection witli contested-election cases proper. 
 
FRAUD. 711 
 
 EXTENSION OF TIME TO TAKE TESTIMONY. 
 
 See Evidence, Additional. 
 
 FEDERAL EliECTION LAWS. 
 
 See Election Laws. 
 
 FBAXTD. 
 
 Effect op. ((See, also, Ebtuhns, Impeachment of.) 
 
 To be eliminated, if' possible, without rejection of returns. ' 
 Where contestant proved that more votes were cast for him than were returned for 
 him, and there were circumstances indicating fraud, the committee preferred not 
 to reject the polls, but corrected the vote according to the proof. 
 
 Taylor vs. Reading, 41st Cong 2 Bart., 667 
 
 The committee held the law to be "that where fraud is shown to exist the poll shall 
 not be rejected unless it is impossible to purge it of the fraud." It being shown 
 that very many illegal votes had been received, -with the fraudulent connivance 
 of the judges of election, and there being definite proof that at least 252 of the votes 
 shown by the numbered ballots in the box to have been cast for contestee were 
 illegally and fraudulently cast, the committee deducted these 252 votes from the 
 vote of contestee. The minority held that as the ballot box was clearly shown to 
 have been ta,mpered with, the ballots found in it were no evidence how these 252 
 persons voted. The fraudulent returns were no evidence of the remainder of the 
 vote, and the only course left was to reject the entire return, and count only such 
 votes as each party had proved aliunde. 
 
 Le Moyne vs. Fanvell, 44th Cong Smith, 409,422 
 
 Where not enough to affect the result, election valid. 
 Where there was fraud and bribery on behalf of contestee, but no proof connecting 
 him with it, or showing that it affected enough votes to change the result, the 
 committee reported for contestee. 
 
 Evans vs. Turner, 66th Cong Eeport 198 
 
 Distinction between illegality and fraud. 
 "The distinction is between mere illegality and fraud in the conduct of elections. 
 The first does not deprive the candidate of any votes save those proven to have 
 been illegally cast for him ; the second, by destroying the value of the returns as 
 evidence, causes the rejection of the entire poll and deprives the candidates of all 
 the votes cast for them, as well the legal as the illegal ones, unless otherwise 
 proved." 
 
 Wise vs. Young {minorUy report) 66th Cong Report 772, part 2, p. 4 
 
 Where votes fraudulently kept from box, returns can not be purged and must be rejected. 
 "The authorities are clear and complete that where fraud taints a return it can not 
 be purged, but must be rejected; but a return can be purged only by rejecting 
 ballots illegally cast or wrongfully counted. While in this case legal ballots 
 were unquestionably kept from the box by the illegal and wrongful acts of 
 persons connected with the machinery of the election, it is impossible to deter- 
 mine the number of these ballots, and the only logical and equitable result is to 
 reject such returns." 
 
 Murray vs. Elliott, 64th Cong Report 1567 
 
 Foils rejected or returns corrected, according as discrepancy large or small. 
 Where thenumberof votes castwas proved to have been much less than the number 
 returned, the committee rejected the whole polls; where the discrepancy was 
 smaller, they corrected the returns according to the probable state of the vote. 
 -Robinson vs. Harrison, 64th Cong Report 1121 
 
712 DIGEST OF CONTESTED ELECTION UAHJiis. 
 
 Betnrns rejected or purged, according to amount of discrepancy. 
 Where tliere were many more voters proved by their own testimony to have voted 
 for contestant than were returned for him, and the remainder was less than the 
 number returned forcontestee, and there were other indications of fraud, including 
 the partisan appointment of election officers, the committee threw out the whole 
 returns and counted only the votes proved aliunde. Where the margin was 
 smaller, and might have been accounted for by the ballots rejected as imperfect, 
 the committee corrected the returns according to the proof. 
 
 Wise vs. Young, 65ih Cong Report 772 
 
 Returns rejected or purged, according to circumstances. 
 Where it was shown by the testimony of list takers, corroborated by the testimony 
 of the voters themselves, that many more votes were cast for contestant than 
 were returned for him, and there were other indications of fraud, the committee 
 rejected or corrected the returns, according to the testimony in each case. 
 
 Patterson vs. Carmack, 55th Cong Report 895 
 
 Beturns rejected or corrected, according to amount of discrepancy. 
 
 Where more votes were proved to have been cast for contestant than were returned 
 
 for him the committee rejected or corrected the returns according to the amount 
 
 of the discrepancy. The minority corrected many returns, but rejected only a few. 
 
 Wiseys. Young, 56thCong Report 186 
 
 Fraudulent returns rejected. 
 Returns which are tainted with fraud can not be made the foundation of the title to 
 a seat in the House. The result should fee purged of the fraud if practicable, and 
 the poll only thrown out when no other alternative remains but to give effect to the 
 fraud or to reject the poll. 
 
 Atkinson vs. Pendleton, 51st Cong Rowell, 46 
 
 Votes fraudulently added to returns deducted. 
 Where it was proved that returns and poll books had been altered so as to show sev- 
 eral hundred votes for contestee which had not been cast, the committee unani- 
 mously deducted the votes thus fraudulently added. 
 
 Chaves \s. Clever, 40th Cong 2 Bart., 467 
 
 Votes fraudulently returned deducted. 
 Where it was charged that a large number of persons whose names were marked on 
 the check list as voting did not vote, and some witnesses swore that their names 
 were the same as those marked on the list, and that they had not voted, and it was 
 proved that a large number of the persons marked could not be found in the ward 
 by a diligent search two months after the election, and that many of them were 
 not on the assessor's list, the committee agreed as a compromise to deduct 105 from 
 contestee's vote, the majority holding that the charges of fraud were sustained, the 
 minority holding that they were not sustained, but agreeing to the compromise 
 because of the lack of testimony explaining the irregularities. 
 
 Abbott vs. Frost, Uih Cong Smith, 614, 619 
 
 Entire vote excluded. 
 Where, in a county in which votes cast for one party had been notoriously counted 
 for the other, and the voters of the defrauded party at this election therefore 
 refused to vote, but many more votes were still returned for contestee than were 
 cast for both parties, the committee held that the entire vote should be excluded. 
 Contestant's supporters were justifiable in not voting, and "it would be a travesty 
 upon justice to permit his opponent to be allowed the votes which were cast at the 
 election in his favor." 
 
 Aldrichys. Bobbins, 56th Cong Report 327 
 
 Fraudulent return set aside. 
 It was charged that the presiding officer at an election, after the legal poll was closed, 
 held a new and fraudulent election. The House seems to have sustained the 
 charge. 
 Jackson vs. Wayne, M Cong 1 0. and H., 47 
 
FRAUD 
 
 713 
 
 Vitiates entire poll. 
 "When the result in any precinct haa been shown to be 'so tainted with fraud that 
 the truth can not be deducible therefrom,' then it should never be permitted to 
 form a part of the canvass. The precedents, as well as the evident requirements 
 of truth, not only sanction, but call for the rejection of the entire poll when stamped 
 with the characteristics here shown." 
 
 Knox vs. Blair, 38th Cong 1 Bart, 526 
 
 Where the poll was opened the night before election, at a different place from the 
 legal one, and a large number of illegal votes received, and the votes received the 
 next day at the legal place were received in the same box unopened, the entire 
 vote was rejected. 
 
 Todd vs. Jaijne,S8th Cong 1 Bart, 560 
 
 Return vitiated by fraudulent voting. 
 Where there was proof of the deliberate reception of fraudulent votes, with the con- 
 nivance and in part by the procurement of the election officers, and there was defi- 
 nite proof of the fraudulent character of 116 votes, but only 30 could be deducted 
 from either candidate, there being no proof for whom the others were cast, " the 
 committee see no alternative but to accept the return, and thus sanction the fraud, 
 or set it aside altogether. They can not doubt that the latter course comes within 
 the precedents of former Congresses and of this committee and of the present 
 House, and they therefore reject this return altogether." 
 
 Dodge vs. Brooks, S9th Cong 2 Bart., 88 
 
 Wholesale fraudulent voting; whole poll rejected. 
 "Two hundred and forty votes might have been illegally cast for either candidate in a 
 large district without causing the loss of more than that number to either, when 
 proved, but 200 or more votes can not be received by election officers with a guilty 
 knowledge that they were illegal, or in gross violation of the election laws, which 
 they were bound to consult, without entailing a stronger penalty. In such cases 
 not only State courts, but legislatures and Congress have not hesitated to declare the 
 whole poll void and of no effect, except as to such votes as either party chooses to 
 save, by proof of their legality." 
 Myers vs. Moffett, 41st Cong 2 Bart. , 566 
 
 Where many fraudulent votes returned, whole poll thrown out. 
 Where the election was held by others than the regularly appointed officers (who 
 were, however, selected by the voters present, under the forms of law) and they 
 returned as voting many more persons than there were names on the registry lists 
 of qualified voters, and it was impossible to purge the polls, the committee unani- 
 mously rejected the whole precinct. 
 SwUzler \s. Dyer, 41st Cong 2 Bart, 790 
 
 Whole vote of a county thrown out. 
 Where the superintendent of registration, for a money consideration, removed his 
 first appointees and appointed new registering officers for the purpose of procuring 
 a fraudulent registration to be made, and these registering officers disregarded the 
 law and admitted very many disqualified persons to register, so that the total reg- 
 istry was twice as large as the registry made two years earlier and that made two 
 years later, the committee threw out the whole vote of the county where these 
 frauds prevailed. 
 Shields YB. Van Horn, 41sl Cong , 2 Bart, 924-929 
 
 Whole poll rejected. 
 The committee quoted the rule from Howard vs. Cooper [Knox w. Blair (?) ] (1 Bart., 
 275) : "When the result in any precinct has been shown to be so tainted with fraud 
 that the truth can not be deducible therefrom, then it should never be permitted to 
 form a part of the canvass. The precedents, as well as the evident requirements of 
 truth, not only sanction but call for the rejection of the entire poll when stamped 
 with the characteristics here shown." The contestant in this case had charged 
 fraudulent voting in a precinct where he nevertheless received a large majority. 
 The proof was not sufficient to establish the number of persons voting fraudulently, 
 
714 DIGEST OF COJITESTED ELECTION OASES. 
 
 even if taken to establish the general fact, and the above rule was quoted as indicat- 
 ing the only other renaedy; but as in this case the remedy would be decisive of the 
 case against the candidate charging fraud, it would have been unfair to him to apply it. 
 Bromberg vs. Haralson, 44lh Cong Smith, 360 
 
 Betnm rejected. 
 "The law is that where fraud is proved to have been committed by the officers of an 
 election in conducting the election, no reliance can be placed upon any of their 
 acts, and their return must be rejected as wholly unreliable. The party claiming 
 under the election must prove the actual vote in some other way." 
 
 FinleyYB. Walls, 44th Cong Smith, 389 
 
 Vote of a whole city thrown out. 
 Where the testimony showed a very large amount of repeating, bribery, and intimi- 
 dation in every precinct of the city of Charleston, S. C, committed by the friends 
 of contestee, with the evident aid and collusion of the election officers, the com- 
 mittee unanimously threw out the vote of the whole city. 
 
 Buttz vs. Mackey, 44th Cong Smith, 684-689 
 
 "Whole poll rejected. 
 The minority (on this point probably sustained by a majority of the committee) 
 rejected a poll because there was unlawful interference with the United States 
 supervisor, preventing him from discharging his duties; because the poll list was 
 falfiifled by placing on it fictitious names; because a crowd of men who had already 
 voted at another precinct were permitted to vote for contestee, while more than 
 200 of contestee' s supporters, standing in line all day, were prevented from voting 
 at all; and because there was no trustworthy evidence of the actual vote cast or 
 returned. 
 
 Lee vs. Richardson {minority report) , 47th Cong 2 Ells., 547 
 
 Where it was shown that the number of votes returned in a number of precincts was 
 largely in excess of the vote actually cast, and many of the names on the poll books 
 were obviously fictitious, the committee unanimously rejected the whole vot« of 
 these precincts. 
 
 Manzanares vs. Luna, 48lh Cong Mobley, 62 
 
 "The return of the' officers is prima facie evidence of the result of the election in the 
 precinct where it was held. Unassailed it is sufficient to be counted in the ascer- 
 tainment of the general result. It may be impeached by anything which will show 
 it to be untrue in fact or unworthy of credit because of the improper copduct of the 
 officers of the election. The return is accepted as the act of sworn officers, to whose 
 acts confidence is to be given upon the presumption that they have regarded the 
 law and done their duty. But if they are shown to have disregarded the law and 
 violated the statutes which have been adopted to preserve the purity of the elec- 
 tion, then their return shall be rejected, because it is no longer entitled to the credit 
 which is given to acts of officers who have done their duty. The misconduct of the 
 officers must be such as to make the result uncertain, for if, notwithstanding their 
 irregularity, the true vote can be ascertained, it shall be counted. But where the 
 condition of the poll is such that the result can not be reached with reasonable cer- 
 tainty, then the entire poll must be rejected." 
 Hurd vs. Romeis {minority report) , 49th Cong Mobley, 430 
 
 Fraud in regard to one vote not fatal to whole poll.' 
 If it had been proved that one of the judges deposited the ballot of a voter in his 
 pocket instead of in the box, this would not authorize the exclusion of the entire vote 
 of the precinct. 
 Stovell vs. Cabell, 47th Cong 2 Ells., 672 
 
 Knowingly produced by election officers, whole vote thrown out. 
 "While the committee should be slow to throw out the whole vote of a ward or dis- 
 trict, nevertheless, if the facts and circumstances show that the inspectors of the 
 registry and election knowingly produced frauds, and violated the election laws, 
 and permitted illegal voting, and the polls can not be purged, the whole vote should 
 be thrown out." 
 
 Van Wyck vs. Greene, Ust Cong _ 2 Bart., 641 
 
FRAtrD. 715 
 
 Fraud committed by election officers vitiates all their acta. 
 Where it is proved that a given number of ballots were tampered with by the judges, 
 the whole vote must be thrown out unless there is the most satisfactory evidence 
 that no other ballots were tampered with. 
 
 Hurd vs. Romeis [minority report) , 49th Cong Mobley, 435 
 
 Where the managers of election stuffed the box, or permitted it to be stuffed, "their 
 every act ia tainted, and the presumption that the law ordinarily attaches to official 
 acts, omnia prxsumuntur rite acta esse, is destroyed, and every act of these managers 
 attainted with suspicion and fraud." 
 
 Smalls vs. Elliott {minority report), 50th Cong : Mobley, 730 
 
 Evidence of {see also Evidence). 
 
 fictitious names on poll book rejected. 
 Where the names "Oliver Twist" and "Sam Weller" appeared on the poll book 
 the majority of the committee took it as evidence of fraud. The minority (whose 
 conclusions were substantially adopted by the House) rejected these two votes. 
 Chapman vs. Ferguson, 35th Cong 1 Bart., 269; 272 
 
 Fictitious names on poll book, wbole poll rejected. 
 Where the voters' names were recorded on the poll books " to a great extent alphabet- 
 ically, as if copied from some index or registration list," the committee rejected 
 the whole vote of the poll on this evidence of fraud. 
 
 Manzanares vs. Luna, 4Sth Cong Mobley, 63 
 
 No inhabitants in a county. 
 Where the evidence showed that a county contained no inhabitants votes returned 
 from it were rejected. 
 Daily vs. Estabrooh, Seth Cong 1 Bart., 303 
 
 TTnexplained increase in the vote a suspicious circumstance. 
 Where there was an increase of about 5,000 in the vote of the district over that cast 
 at the previous election, and this increase was nearly all in eight or nine precincts, 
 and was all in the vote of one candidate, there being no substantial increase or 
 decrease in the votes of other candidates, the committee were of the opinion that 
 if such an increase had been due to any legitimate cause it would necessarily have 
 been something well known and easily proved. The contestee having failed to 
 account for it in any way, he presumably could not; and the increase, unaccounted 
 for, was a very suspicious circumstance. 
 Blair vs. Barrett, 36th Cong 1 Bart., 310 
 
 More votes than voters. 
 Where 128 votes were returned from a county, but the evidence showed that it could 
 not contain over 60 voters, and there were circumstances indicating fraud, the com- 
 mittee deducted 68 votes from the candidate for whom all the votes of this county 
 were returned. 
 
 Daily vs. Estabrook, 36th Cong 1 Bart., 304 
 
 Where 141 votes were returned as being cast, but the evidence showed that there 
 were only 58 qualified voters in the precinct, and that the registration under which 
 this election was held was fraudulent, the committee rejected the return and threw 
 out all the votes except a few proved aliunde. 
 
 Goodrich vs. Bullock, 51st Cong Rowell, 588 
 
 Discrepancy between returns and proved vote not sufficient. 
 The minority held "that fraud when charged, must be proved, and that it never 
 can legally he presumed from mere suspicious circumstances, however strong they 
 may be deemed, that a mere discrepancy between the number of votes returned and 
 the tally lists, or the number that may afterward be proved to have been cast, has 
 never, in any judicial or legislative inquiry, been considered as evidence of fraud at 
 all tending to affect the validity of the election, and that if it should be held to 
 have that effect, no election could be sustained, and every one in the United States 
 
716 DIGEST OF CONTESTED ELECTION CASES. 
 
 could be defeated and destroyed." Where a number of voters considerably larger 
 than the number returned for contestant testified that they voted for him, and 
 there were circumstances suspicious of fraud, the minority held that the returns 
 should not be rejected if the circumstances could be explamed in a way consistent 
 with the innocence of the election officers. 
 
 Washburn vs. Voorliees {minority report), 39th Cong 2 Bart, 70 
 
 More votes returned for a candidate than cast for him. 
 Any considerable number of votes proved for one candidate in excess of the number 
 returned for him has always been regarded as evidence of fraud and a legitimate 
 method of impeaching the return. . Where 191 more votes were proved to have been 
 cast for a candidate than were returned for him the committee considered it "suffi- 
 cient to exclude the return from the count without further evidence." 
 Bisbeevs. Finley, 47th Cong , 2 Ells., 177 
 
 Fraud at another election corroborative evidence. 
 Where the same election officers at an election only a month later were guilty of most 
 flagrant fraud in returning large numbers of votes never in fact cast, the committee 
 considered this fact in corroboration of the evidence indicating intentional fraud at 
 the election in contest. 
 
 Myers vs. Moffett, 41st Cong 2 Bart. , 568 
 
 Foil not rejected unless fraud clearly proved against officers. 
 " To vitiate a poll and justify the rejection of the returns of an election, the testi- 
 mony ought to be clear and convincing in its character. It must establish fraudu- 
 lent conduct on the part of the officers, or some of them, at least, charged with the 
 duty of conducting the election, certifying the result, or making the returns." 
 
 Abbott vs. Frod {minority report), 44th Cong Smith, 624 
 
 Must be specifically proved. 
 Fraud must be specifically proved, and will not be presumed at one poll because 
 proved at another. 
 
 Buchanan vs. Manning, 47th Cong 2 Ells., 295 
 
 Proved at some precincts, may be presumed at others. 
 " There being a conspiracy to defraud, there being proof of fraud at a number of pre- 
 cincts," and the illiterate character of the minority inspectors leaving opportunity 
 for unlimited fraud at other precincts, ' ' and there being no proof by contestee of 
 good faith in the election, it should be set aside." 
 
 Buchanan vs. Manning {minority report) , 47th Cong .2 Ells., 337 
 
 Frauds at prior elections do not excuse failure to make full proof in regard to elec- 
 tion in question. 
 
 "Frauds at prior elections and the obstructions to the taking of testimony in prior 
 election contests may, and often do, throw light upon the political situation in a 
 community, but can not be taken as an excuse for not attempting earnestly in sub- 
 sequent contests to comply with the rules of evidence. Every election must rest 
 upon its own merits." 
 
 Threet vs. Clarke, 51st Cong Rowell, 180 
 
 Not presumed without evidence. 
 
 Where 14,000 names had been erased from the registry under the law, and it was 
 
 charged that there was a conspiracy to use the outstanding certificates in these 
 
 names as the basis for illegal voting and repeating, but there was no evidence that 
 
 any such certificate was so used, the committee refused to presume that it was done. 
 
 Remain vs. Meyer, 55th Cong Report 1521, pp. 7-9 
 
 May be proved by circumstances pointing to it. 
 "Let it be remembered that fraud can rarely, if ever, be proved by direct evidence, 
 and that the rule is that whenever a sufficient number of independent circum- 
 stances which point to its existence are clearly established, a prima facie case of 
 its existence is made, and that if this case is not met by explanation or contradic- 
 tion it becomes conclusive." 
 
 Noyes vs. Rockwell {minority report, sustained by the House), SSd Cony... Stofer, 48 
 
FRAUD. 
 
 /17 
 
 Circnmstantial evidence establishes prima facie case. 
 "Fraud can rarely, if ever, be proved by direct evidence, and the rule is that when- 
 ever a sufficient number of circumstances which point to its existence are clearly 
 established, a prima facie case of its existence is made, and if this case, is not met 
 with explanation or contradiction it becomes conclusive." 
 
 Milchell vs. Walsh, 54th Cong Report 1849 
 
 Beturna false and contestant not represented on board. 
 Where it was proved that many more votes were returned from the contested pre- 
 cincts than were cast, that names of persons not voting were on the poll lists, and 
 that contestant was not represented on the election boards, the committee held 
 that the fraudulent character of the returns was established. 
 
 Goodwyn vs. Cobh, 54th Cong Report 1122 
 
 Ballot box out of sight of voter. 
 The returns of a precinct where the boxes were so placed that the voter could not 
 see whether his ballot was deposited or not, and there were many other indications 
 of fraud, were rejected, and only votes proved, aliunde counted. 
 
 Aldrich vs. Underwood, 54th Cong Report 2006, pp. 6-9 
 
 Many suspicions and illegal acts. 
 The votes of one parish apd three wards of another were thrown out on the ground 
 that "the watchers appointed by the Republicans were refused admission to the 
 polling places by the Democrats. Republicans, mostly colored men and legal 
 voters, who would have voted for contestant, were refused the right of suffrage; 
 tally sheets, lists of voters, and poll books were altered and forged; ballot boxes 
 were stuffed with fraudulent ballots, and many other illegal acts done in the inter- 
 est of contestee and against contestant." 
 
 Coleman vs. Buck, 64th Cong Report 758 
 
 Suspicions reversal of colored vote. 
 Where it was in evidence that most of the colored voters were Republicans, but in 
 the precincts in this case-in which the Republican party had been denied proper 
 representation on the election boards, most of them were returned as voting the 
 whole Democratic ticket, the committee characterized this fact as "suspicious," 
 and said: "Unless some reason for this is shown, it will certainly add great strength 
 to the presumption of fraud arising from the selection of ignorant judges, and force 
 us to the conclusion that the vote returned from theser contested districts did not 
 represent the actual vote cast by the voters."' 
 
 Patterson vs. Carmack, 55th Cong Report 895, p. 8 
 
 Testimony of watchers that vote less than returns. 
 The testimony of persons who were present at the polls all day and kept count or 
 tally of the number who voted or could have voted, which number was much less 
 than the number returned as voting, was received among other evidence to show 
 that the returns were fraudulent. 
 The minority held that the ballots themselves were the "best and only admissible 
 evidence." 
 Aldrich vs. Robbins, 54th Cong Report 572 
 
 Foil list stuffed alphabetically. 
 Where the first 200 names on the poll list were in alphabetical order, the names 
 immediately following them were those of the voters who voted first in the morn- 
 ing, and the poll list was stuffed throughout with the names of persons who did 
 not vote and in many cases did not exist, the committee found these returns tainted 
 with fraud and rejected them, and as there was no other proof of the vote, threw 
 out the polls. 
 
 Van Horn vs. Tarsney, 54th Cong Report 355 
 
 Foil lists alphabetically stuffed. 
 Where the poll lists contained many more names than the number shown to have 
 voted, and the extra names were in direct alphabetical order or in simple alpha- 
 betical alternations or groups, the committee threw out the returns as fraudulent. 
 
 Aldrich vs. Plowman, 66th Cong Report 284 
 
718 DIGEST OF CONTESTED ELECTION CASES. 
 
 Betnrna absardly large and poll lists alphabetically staffed. 
 Where, throughout a whole city, the returns were "absurdly lai^e," many more 
 being returned as voting than voted, the extra votes sometimea being placed on 
 the poll lists in alphabetical order, or composed of flctitious o" nonregistered per- 
 sons, or persons proved not to have voted, the coiumittee th.ew out the whole 
 vote, but counted such votes as were proved aliunde. 
 
 Wise vs. Young, 56th Cong Report 186 
 
 More votes cast for contestant than returned. 
 Returns from precincts where it was proved that more voters voted for contestant 
 than were returned for him were rejected, and only the votes proved aliunde 
 counted. 
 Aldrich vs. Underwood, 64th Cong Report 2006 
 
 More votes cast for contestant than returned for him. 
 Where it was proved that more votes were cast for contestant than were returned for 
 him, this fact was held to impeach the returns from the precincts in which it was 
 proved. 
 
 Aldrich vs. Robbing, 54ih Cong = - Report 572 
 
 More votes retnrned than cast. 
 Where the returns in a large number of precincts showed a very large vote, practi- 
 cally all for contestee, when the evidence showed that a much smaller number of 
 votes was cast, that many of the names on the poll lists were the names of dead, 
 absent, or fictitious persons, and others the names of persons who did not vote, the 
 committee held that fraud was estabUshed. 
 
 Aldrich vs. Bobbins, 54th Cong Report 572 
 
 FREEHOLD TITLE 
 
 As qualification for voting in Virginia. See Qualifications of Electors. 
 
 GOVERNOR (see also Prima Facie Right, Credentials, and Vacancy). 
 
 Powers not to be delegated. 
 The power of the governor to fix the time of election can not be delegated to anyone 
 else. 
 
 McKenzie, 37th Cong 1 Bart., 461 
 
 Orafflin, 37th Cong 1 Bart., 464 
 
 Can not by the words of his writ of election limit the time for which members shall 
 serve. 
 
 Where the governor issued a writ of election to fill a vacancy caused by the calling 
 of Congress in special session before the regular day of election, and'specified in 
 the writ that the member elected should serve only for the called session, the com- 
 mittee held that this limitation was in excess of the governor's powers, but that it 
 might be regarded as mere surplusage, and did not invalidate the writ. If there 
 were no other grounds on which the election was illegal, if the members were 
 elected at all they were elected for the whole unexpired term of the Congress. 
 This decision was sustained by the House, but at the next session it was rescinded. 
 Gholson and Claibonie, 35th Cong 1 Bart. 9 
 
 The Territoral governor exceeded his powers in fixing the time for a special election. 
 The organic law of Kansas Territory provided that the first election should be held 
 at a time fixed by the governor, subsequent elections to be held at times fixed by 
 the legislature. The election law passed by the legislature contained no provisions 
 for special elections to fill vacancies. The governor issued a proclamation fixing 
 the time for an election to fill the vacancy caused by the unseating of Mr. Whitfield. 
 The committee held that the governor had exceeded his powers, and that the elec- 
 tion was void for this reason among others. The minority held that the governor 
 acted within the spirit of the law. The House did not directly act upon the merits 
 of the case. 
 
 Reederys. Whitfield {seoond case), 34th '"in 1 Bart.. 215-225? 
 
GOVERNOR. 7l9 
 
 His decision in regard to time and place of election to fill vacancy to be followed. 
 "By the Constitution of the United States * * * the governor is constituted the 
 tribunal to determine when and where to order an election to fill a vacancy, and 
 where the laws by which he is to be guided aie doubtful his decision ought to be 
 followed by Congress. This course is founded upon precedent, upon the respect 
 due to State authority, and upon that public policy which requires a full represen- 
 tation of the States." 
 
 Pool vs. Skinner, 4Sth Cong • Mobley, 67 
 
 HOUSEKEEPERS. 
 
 What are. {See Qualifications op Electors. ) 
 
 HOUSE OF KEPRESENTATIVES (see also Committee on Elections, Re- 
 turns, Delegate, and Illembership). 
 
 Hot a continuous corporation. 
 The House of Representatives is not a continuous corporation, but each House has a 
 separate and independent existence, which begins when it first meets and organizes. 
 Hammond vs. Herrick, 15th Cong C. and H., 294 
 
 Acts as a judicial body. 
 "The House, in judging of elections, has no discretion to exercise. It acts in a judi- 
 cial character, and the only thing to be adjudicated is this: Who has received a 
 majority of the votes of the electors in the district, polled at the time, in the- 
 manner, and at the places prescribed by law?" 
 
 Miller vs. Thompson, 31st Cong 1 Bart., 127 
 
 Confined to elections, qnalifications, and retnrns. 
 " In adjudicating upon any case of a contested election, the House can only deter- 
 mine whether such election has been held in accordance with existing legal pro- 
 visions, whether the qualifications of the person elected are such as the Constitu- 
 tion requires, and whether the return^ have been legally made." 
 
 Perkins vs. Morrison, 31st Cong 1 Bart., 144 
 
 Laws of the respective States should be its rnle of action, 
 "Although the House of Representatives, by virtue of the fifth section of the first 
 article of the Federal Constitution, are made the judges of the election returns and 
 qualifications of its members, yet this power is not plenary, but is subordinate to 
 the second and fourth sections of the same article, the first of these sections 
 providing that the electors of the members shall have the qualifications requisite 
 for the most numerous branch of the State legislature; the fourth section empower- 
 ing and authorizing the legislature in each State to prescribe the places, times, and 
 manner of holding elections for Senators and Representatives — such regulations 
 being subject to alterations made by the Congress. By force of these provisions, 
 the House is compelled, when adjudicating in any matter affecting the elections, 
 returns, or qualifications of any of its members, to make the law of the respective 
 States from which such members may be returned its rule of action." 
 
 Wright vs. Fuller, S2d Cong 1 Bart., 156 
 
 Can not be estopped by State law from investigating legality of returns and votes. 
 The law of Alabama (passed in 1868) empowered the county canvassing board to 
 reject votes and returns upon proof of fraud or intimidation. This rejection was to 
 be final unless an appeal waq taken to the probate court within ten days. The 
 committee held that the latter clause was not binding on the House. "It is not 
 competent for the legislature of a State to declare what shall or shall not be con- 
 sidered by the House of Representatives as evidence to show the actual votes caat 
 in any district for a member of Congress, much less to declare that the decision of 
 a board of county canvassers rejecting a given vote shall estop the House from 
 further inquiry. The fact, therefore, that no appeal was taken from the decision 
 of the board of canvassers * * * can not preclude the House from going behind 
 the returns and considering the effect of the evidence presented." 
 
 Norris vs. Mandley, 42d Cong Smith, 72 
 
720 DIGEST OF CONTESTED ELECTION CASES. 
 
 Has powers of court of equity as well as of court of law. 
 " The House possesses all the powers of a court having jurisdiction to try the ques- 
 tion who was elected. It is not even limited to the powers of a court of law merely, 
 but under the Constitution clearly possesses the functions of a court of equity also." 
 So even if it be conceded that ministerial officers can not always count for a candi- 
 date votes clearly intended for him, the House is not prevented from doing so. 
 
 McKenzie vs. Braxlon, A^d Cong Smith, 21 
 
 Has powers of court in cases of quo warranto. 
 The House is not precluded by the face of the returns, but in inquiring into the 
 validity of an election has all the power of a court in cases of qv/y warranto. 
 Dean vs. Meld, 46th Cong 1 Ells., 200 
 
 The House not bound by the strict rules of judicial procedure. 
 Neither the committee nor the House is bound by the usual rules of evidence in their 
 letter and strictness, but should proceed upon more liberal principles in the inves- 
 tigation of truth. A contested election is not to be regarded as a mere private 
 litigation, but a great public inquiry, where the real parties are not so much the 
 returned member and the contestant as the voters of the district. "The distinction 
 claimed to exist between an ordinary forensic court and a legislative assembly is 
 recognized not only in Parliament and Congress, but in the courts themselves, and 
 from a very early period." 
 
 Vallandigham vs. Campbell, 35th Cong -.;.- 1 Bart., 230 
 
 "It is the duty of the committee to approach as nearly as possible the ballot box, 
 and, by an examination of all the testimony, see that no legal voter i.« deprived of 
 hisjust right to the elective franchise." * * * "This committee and the House 
 are not circumscribed by the formalities that regulate proceedings of a board of 
 return judges." 
 Koontz vs. Coffroth, 39th Cong 1 Bart., 142 
 
 "By the Constitution, in all matters pertaining to the election, returns, and qualifi- 
 cations of its members, the House is made ' a law unto itself, ' and has no other rule 
 forced upon it for the determination of these questions than the sanction of the 
 oath of its members, and that due regard for the rights of constituencies which the 
 representatives of constituencies, from the nature of their own duties and relations, 
 must have and feel. Not that the technical rules of the law applicable to evidence 
 and weight of evidence, the duties of officers, etc., may not be called in to aid in 
 the proper investigation of a case, but that when called in they shall- not be regarded 
 as greater than the rights to be affected by their application." 
 
 Wallace vs. Simpson (majority report) 41st Cong 2 Bart., 556 
 
 "It may [be], and doubtless is, sometimes necessary to sacrifice justice in a particu- 
 lar ease in order to maintain an inflexible legal rule, but all just men must regret 
 such necessity and avoid it when possible to do so. " 
 McKenzie vs. Braxton, 4Sd Cong _ _ _ .Smith, 21 
 
 Courts will invoke the aid of technical rules to prevent gross injustice, but they 
 should not be permitted to stand in the way of equal and exact justice unless of 
 such a rigid character and so firmly embedded in the law as to compel adhesion to 
 them. Doubts on such questions are always resolved in favor of justice and 
 against wrong. 
 
 Lowry vs. White {minority report), 50th Cong Mobley, 644 
 
 "The House of Representatives, with its broad and indeed limitless powers respect- 
 ing the settlement of contested-election cases, is onlv desirous of arriving at the 
 truth. While it will not depart from wise and well-settled rules of law, it will not 
 hedge itself about with technical rules which do manifest wrong." 
 Mitchell vs. Walsh, 54th Cong Report 1849 
 
 Not bound by technical rules, but should follow precedents. 
 "The House is the exclusive judge of the qualifications, elections, and returns of its 
 own members. In the exercise of this prerogative it is not bound by the technical 
 ruleaof judicial procedure, nor even by its own precedents. These may be per- 
 
HOUSE OF REPRESENTATIVES. 721 
 
 suasive, and, in so far as the}'' embody the wisdom of experience, enhghten the 
 mind and contribute to right conclusions. * * * And if we are wise and patri- 
 otic we will be aided by rules whose soundness has been tested by experience." 
 Bisbee vs. Finley (minority report), 47th^ Cong 2 Ells., 203 
 
 Will keep in view its own precedents. 
 "The Constitution of the United States makes each House of Congress the exclusive 
 judge of the qualifications, election, and returns of its own members. In making 
 the inquirj' involved m this constitutional provision the House will carefully keep 
 in view the customs and precedents which have heretofore prevailed in such mat- 
 ters. The prime object in all such cases is, if possible, to ascertain who was the 
 people's choice at the election in question. This can only be accurately ascer- 
 tained by giving close and fair attention to all the surroundings, facts, and circum- 
 stances connected with the case under consideration." 
 
 English vs. Hilborn, 53d Cong Report 614, p. 9 
 
 Powers plenary and absolute. 
 "The powers of Congress m regard to the ejections of its members are plenary and 
 absolute. Congress may reject supervisors' returns and accept those of the precinct 
 inspectors, or if it sees fit it may reject the precinct returns, and, from the evidence 
 of the votiers or from any other outside testimony that it deems trustworthy, may 
 determine how the vote of a district was actually cast. There is no limit whatever 
 to the power of Congress in regard to the evidence by which it may seek to deter- 
 mine the vote of a district." 
 
 McDuffie vs. Davidson (minority report), 50th Cong Mobley, 599 
 
 Has plenary power to consider any evidence it chooses. 
 Under the plenary powers conferred upon the House by the Federal Constitution to 
 determine the election of its own members, it possesses the undoubted power to 
 determine a contest on any evidence which in its opinion establishes fraud, 
 
 McDuffie vs. Turpin (minority report), 6Sd Cong Stofer, 102 
 
 Will go behind all retnrns. 
 "The House, by its constituted agents, will go behind all certincates and returns to 
 inquire into and correct all mistakes in elections brought to its notice by a contest 
 legally made." 
 
 Gooding vs. Wilson (minority report), 4^d Cong Smith, 84 
 
 May inquire into result of first election after a second has been held. 
 Where a majority was required to elect, and neither candidate appearing to receive 
 a majority at the first election, the governor ordered a new election, at which the 
 sitting member was elected, but the petitioner claimed to have been elected at the 
 first election; Held, that it was a question which might be inquired into by the 
 House. 
 
 Washburn vs. Ripley, 31st Cong C! and H., 682 
 
 Dlay investigate election of Territorial legislature which passed the law under which 
 the Congressional election was held. 
 Where the contestant claimed that the law under which the election was held was 
 invalid because the Territorial legislature by which it was passed was not elected 
 by the people of the Territory, but was imposed upon them by an armed invading 
 force, the committee reported that the public importance of the question demanded 
 an investigation by the House. The minority held that to investigate the election 
 of members of a Territorial legislature would be assuming a jurisdiction not pos- 
 sessed by the House, and establishing a dangerous precedent. The House ordered 
 the investigation and subsequently vacated the seat. 
 
 Reeder vs. Whitfield (first case), S4th Cong 1 Bart., 185-204 
 
 Can not inquire into validity of adoption of State constitution. 
 The constitution of a State having been recognized by all the departments of the State 
 
 fovernment and by Congress as the established constitution of the State, it was 
 eld that it was too late for the House to inquire into the validity of the proceed- 
 ings by which it was adopted. 
 
 Birch vs. Van Horn, 40th Cong 2 Bart., 207 
 
 H. Doc. 510 46 
 
722 DIGEST OF CONTESTED ELECTION CASES. 
 
 ILLEGAL VOTES. 
 
 Wi[KN I.N(iUiKEi5 Into (but .<«' Quami'icatkins ok Electohk). 
 
 Whether inquired into, where election by ballot. 
 Th(! committee expressed a doubt as to tlie propriety of investigating tiie qualifica- 
 tions of electors where the voting was by ballot; but as the testimony preseiited 
 was in any case insufficient to establish the charges, they did not decide the question. 
 Reed vs. Cosden, 17th Cong - C. and H., 358 
 
 Will not be inqnired into, where election by ballot. 
 
 Where the election was by ballot the committee held that they would not inquire 
 into the qualifications of electors, for if the right of secrecy implied in an election 
 by ballot is to be preserved, the voters can not be compelled to disclo.se for whom 
 they voted, and without such disclosure it would be vain to inquire into their qual- 
 ifications with a view to purge the polls. 
 
 Boston vs. Scott {commiilee orerriih'd h;/ Hoimi), 14tk Omg (' and H., 276 
 
 What Are {see a/so Qvmavic ATiotis of Electors). 
 
 Aliens and nonresidents. 
 The votes of aliens and nonresidents rejci'teil. 
 
 Biddle and Rwhard Yi^. JVing, 19th Cong »'. and H., 512 
 
 How Proved (sec afeo Votes, PRESUMi-rioN ov Legality of. Burden ok Proof, and 
 
 Evidence. ) 
 
 Received by election officers, must be shown illegal beyond a reasonable doubt. 
 
 ' ' Before a member is admitted to a seat in the House something like the judgment of 
 a court of competent jurisdiction has been pronounced upon the right of each 
 voter whose vote has been received, and in order to overturn this judgment it must 
 be ascertained affirmatively that the judgment was erroneous. Prima facie it is to 
 be taken that none liut the votes of qualified voters have been received by oflScers 
 whose sworn duty it was to reject all others. ' ' This principle was unanimously 
 adopted by the committee. The majority held further: "It is not sufficient that 
 there should exist a doubt as to whether the vote is lawful or not; but conviction 
 of its illegality should be reached, to the exclusion of all reasonable doubt, before 
 the committee are authorized to deduct it from the party for whom, it was received 
 at the polls. ' ' 
 
 Xeir Jersey case, ^6th Cong 1 Bart. , 24 
 
 "It is not sufficient to doubt the illegality of a vote, but conviction of its ill^ality 
 should be reached to the exclusion of all reasonable doubt." (New Jersey case, 
 quoted with approval in — ) 
 
 Wallace vs. McKinley, 4Sth Cong Mobley, 188 
 
 "A vote once legally cast can not be set aside except upon proof so strong as to pro- 
 duce the certain moral conviction that the said vote was illegal. The burden of 
 proof is on the party assailing the vote." 
 
 Le Moi/ne vs. Farirell, 44th Cung. f^mith, 414 
 
 " It is to be presumed that the judges of election did their duty and received no ille- 
 gal votes. If they failed to do their duty, it must be proved." Where suggestions 
 according to which a man may have been a legal voter were not negatived" bv the 
 evidence it was presumed they could not be, and the vote allowed to stand. 
 Arelier vs. Allen, 34th Cong _ . .Report 137, p. 11 
 
 Evidence must be clear and satisfactory. 
 The rule stated in the New Jersey case (1 Bart., 25) that a vote received bv the elec- 
 tion oflScers can not be thrown out unless it is provM illegal beyond a reasonable 
 doubt goes too far. "The true rule is believed to be one which, while it may not 
 require the exclusion of all reasonable doubt, does require clear and satisfactory 
 proof of fraud or mistake before the legal presumption in favor of the correctness 
 of the acts of sworn officers shall be nullified." 
 
 Baromherg vs. Haralson, 44th Cong Smith, 358 
 
ILLEGAL VOTES. 723 
 
 Beceived by election officers, presamed to be good nntil the contrary clearly shown. 
 
 "The rights of citizens who have been admitted to vote can only be itnpeachcd by 
 direct and positive testimony; such evidence of disqualification, of identity of per- 
 son, and of the act of voting as is clear and unmistakable. It never could hn toler- 
 ated that men should be disfranchised upon suspicion and inference merely." 
 
 Wright vs. Fuller {minority report sustained by the House), S^d Cong Report 
 
 136, part 2, p. 5. 
 
 Evidence which satisfies and convinces the mind. 
 " Evidence which might have been sufficient to put the voter to his explanation if 
 challenged at the polls is not deemed sufficient to prove a vote illegal after it has 
 been admitted. * * * After a vote has been admitted something more is 
 required to prove it illegal than to throw doubt upon it. There ought to be proof 
 which, weighed by the ordinary rules of evidence, satisfies and convinces the mind 
 that a mistake has been made and which the House can rest upon as a safe prec- 
 edent for like cases." 
 
 (toodiiKj vs. Wilson, 4£d Cong Smith, 82 
 
 Proof of identity required. 
 The committee unanimously adopted as a rule of decision ' ' That when a name is found 
 on the poll book proof that an individual of that name resides in the county, who is 
 a minor, is not sufficient to strike the name off the poll book, and that some proof, 
 direct or circumstantial, other than finding the name on the poll book, will be 
 required of the vote having been given by such minor in the county or precinct 
 where the vote is assailed." 
 
 Letcher \f>. Moore, SSd Cong C. and H., 750, 826 
 
 Mast be specifically proved. 
 "The committee consider that in order to unseat a member of this House who has 
 the regular certificate of election and who is conceded to have received a majority 
 of several hundred votes of the votes received and counted, they should be able to 
 report whose votes were excluded that ought to have been .counted; that it would 
 not do for the committee or for the House to say that out of 2,500 rejected 
 voters, all of whose names are unknown, they are satisfied that enough were 
 legal voters and ought to have been counted to give the contestant a majority." 
 
 Barch. vs. Viin Horn, 40th Cong 2 Bart., 211 
 
 Where voters set out with the avowed purpose of casting illegal votes and were given 
 tickets for the contestee by their foreman, but they could not be traced to any 
 particular poll or identified by name, the committee held that there was no way 
 to deduct their votes. 
 
 Knox vs. Blair, 38th Cong 1 Bart. , 530 
 
 Where it was certain that illegal votes were cast, but definite proof was not made as 
 to tiieir number, the committee said: "The presumption is always in favor of the 
 legality of a vote which has been admitted by the proper officers; and, since all 
 elections in Kentucky are riea voce, and since the record shows how each person 
 votes, it would not, we think, be too much to require contestant to prove the want 
 of residence of such persons as he claims illegally voted for contestee." 
 
 Barnes vs. Adams, 41st Cong 2 Bart., 770 
 
 Where the contestee alleged that the registry lists of a county contained the names 
 of many disqualified persons, and there was some general evidence in support of 
 this claim, the majority (not sustained by the House) held that he should have 
 proved the disquaHfication of each individual voter, so that the polls might be 
 purged. 
 
 Switzler vs. Dyer {majority report) , 41st Cong 2 Bart., 789 
 
 Votes can not be deducted for illegality unless the evidence establish the names of 
 the illegal voters and their individual political affiliations. General evidence of the 
 political affiliations of a class and that a certain number not individually named 
 voted illegally is not sufficient. 
 
 0' Ferrall vs. Paul {minority report ) , 48lh Cong Mobley , 156 
 
724 DIGEST OF CONTESTED ELECTION CASES. 
 
 Votes not rejected on doubtful evidence. 
 It was charged that ],000 persons had voted for contestee who were not residents of 
 the county. There was "testimony tending to prove that 9 colored men voted 
 at the election who were not bona fide residents of the county of Dallas. The evi- 
 dence sh(jUH that at some period before the election they had resided in adjoining 
 counties. But these parties took, when challenged, the requisite oath of residence 
 to entitle them to vote, and upon the proof it would be unsafe to hold that they were 
 not legally entitled to vote as they did." 
 
 Bromherg vs. Haralson, 44lh Cony Smith, 365 
 
 Merely conflicting testimony insufficient. 
 The committee refused to reverse the decisions of the selectmen (in Maine)_ in regard 
 to the residence and qualifications of voters upon merely conflicting testimony. 
 Aiiderson\s. Reed, 47th Coruj - 2 Ells., 286 
 
 Appearance of voters not sufficient evidence of minority. 
 Where bystanders testified that certain persons had voted who appeared to be less 
 than 21 years of age, but each of the voters made affidavit before voting that he 
 was of ag«, the testimony was held to be ' ' too vague and uncertain to justify 
 * * * striking off any vote as ha ving been cast by a minor. " 
 
 Bromherg vs. Haralson, 44th Cong Smith, 365 
 
 The mere statement of a witness that an elector is a minor or nonresident is not suf- 
 ficient. The witness must give facts to justify his opinion. 
 Lowe vs. Wheeler, 47th Cmg 2 Ells., 76 
 
 Negative testimony to show nonresidence. 
 The committee unanimously adopted as a, rule of decision "that no name be stricken 
 from the polls as unknown upon the testimony of one witness only that no such 
 person is known in the county, and that where a man of like name is known, 
 residing in another county, some proof, direct or circumstantial, other than find- 
 ing such a name on the poll book, will be required of his having voted in the 
 county or precinct where the vote is assailed." The House went further than the 
 committee, and restored some votes rejected by the committee upon stronger testi- 
 mony than that above declared to be insufficient. 
 
 Letcher vs. Moore, SSd Cong -. C. and H., 749, 826, 844 
 
 Where the proof that inmates of the poorhouse who had voted had been sent to the 
 poorhouse from other townships than the one in which it was situated and where 
 they voted was negative, consisting of the testimony of public officers and old res- 
 idents that they knew no such persons, it was held to be admissible, and in this 
 case sufficient. 
 
 Le Moyne vs. Farwell [minority report), 44th Cong Smith, 424 
 
 The testimony of witnesses residing in a precinct that they are not acquainted with 
 certain persons whose names are found on the poll list as voting may be sufficient 
 to establish nonresidence in country precincts, but not in a crowded city. 
 
 Hurd vs. Romeis, 49th Cong ilobley, 424 
 
 The evidence of persons well acquainted in a precinct that they are not acquainted 
 with persons who appear on the poll list as voting is competent, and makes out a 
 prima facie case of nonresidence. The burden of proof is on- the party claiming 
 the benefit of the votes to prove them legal. 
 
 Hurd vs. Iliniii-is (minority report) , 49th Cong Mobley, 450 
 
 Where canvassers had been sent through the district to verify the registration lists, 
 and had returned long lists of persons as "not found," and subpoenas for these 
 persons had also been returned as not found, the committee quoted ^McCrary, section 
 356, on the admissibility of such testimony, but pointed out that there was other 
 testimony of undoubted competency showing the same state of facts. 
 
 Moore vs. Funston, 53d Cong Report 1164, pp. 3-7 
 
ILLEGAL VOTES. 725 
 
 Convict; record of conviction must be produced. 
 Where votes are alleged to be illegal because of the conviction of the voter of crime, 
 "the record of conviction is the best evidence and the only evidence to beaccepteil 
 by the House, unless the loss or destruction of that record is shown." 
 
 Lvin; vs. Wheeler, 47th Cong 2 Ells., 76 
 
 In the absence of proper evidence of conviction and punishment, an elector is not 
 disqualified on account of the alleged committal of crime. 
 
 Garrison xi^. Mayo, 48lh Cong Mobley, 59 
 
 Convicts; record of conviction and proof of identity necessary. 
 Where votes are rejected for conviction of crime, a copy of the record of conviction 
 should be produced, and also evidence of the identity of the person offering to vote 
 with the person convicted. It is not enough that the voter has the same name as 
 one of the names found on a list, prepared by a political committee, known as a 
 "convicts' list." 
 
 Bhbee vs. F.mhij, 47th Cong. 2 Ells., 174 
 
 Convicts; record of conviction sufficient. 
 It is sufficient to produce the record of conviction to establish that a voter was a 
 convict. 
 
 Worth'inglon vs. Post, 50th Cong Mobley, 649 
 
 Convict, in Ohio; certificate of pardon must have been issued. 
 Where a convict is not permitted to vote without a pardon from the governor (in 
 Ohio), which pardon the governor is required to issue on the presentation of a 
 certificate of good conduct, and a convict presented such certificate, but neglected 
 to wait for the issuance of the pardon, held that he was not entitled to vote. 
 
 Campbell vs. Morey, 48th Cong Mobley, 227 
 
 Affidavit of voter competent to prove his vote. 
 The affidavit of a voter taken before competent authority, in pursuance of regular 
 and sufficient notice, may be read in evidence to prove his title to vote. 
 
 Porterjield vs. McCoy, 14th Cong.- C. and H., 270 
 
 Large proportion of votes to population not always proof of illegal voting. 
 The mere fact that the number of votes polled is an unusually large proportion of 
 the whole population is not in a frontier country and in new railroad towns any 
 evidence of illegal voting. 
 
 Botkin vs. Maginnia, 4Slh Cbng Mobley, 378 
 
 Coal-mine pay roll as evidence of nonresidence. 
 As to the value of a coal-mine pay roll as evidence of the length of residence of 
 employees, see the case of 
 
 Cook vs. Cults, 47th Cong 2 Ells., 243-283 
 
 For a discussion of the weight of coal-mine pay rolls and the like evidence of the 
 length of residence of voters, see 
 
 McGinnis vs. Alderson, 51st Cong Rowell, 631-678 
 
 How they were cast must be proved by the ballots, if preserved. 
 Where many votes were claimed to be illegal (under the Pennsylvania registration 
 law), because required proof of qualification was not presented at the polls, and 
 the testimony of the voters themselves was taken to show how they voted, the 
 . committee held this evidence to be inadmissible, being secondary. The ballots, 
 having been preserved, should have been introduced. " It is a well-established prin- 
 ciple that the ballot of a voter which has been safely preserved by some authorized 
 custodian is the best evidence as to how or for whom he voted, and must be pro- 
 duced, and that the testimony of the voter himself is secondary and inadmissible." 
 "But while the committee adhere to the opinion that the evidence of the voters 
 was inadmissible, and to the uniform current of decisions that where the ballots 
 cast at an election are required to be so numbered as to enable them to be identi- 
 fied, and they have been safely preserved by some legal custodian, they must be 
 
726 DIGEST OF CONTESTED ELECTION CASES. 
 
 produced as the best evidence, and the testimony of the voters is secondary and 
 inadmissible, yet it has been considered proper to report the names of sucli voters 
 who cast illegal votes, and who, as shown by their own testimony, voted for the 
 contestee." (The number thus shown was' insufflcient to overcome contestee's 
 majority. ) < 
 
 Greevij vs. Scull, 5M Covij - - Stofer, 157 
 
 How Eliminated {see (dm HsrvK^a, whk.v Sjct Asidk what Votes Couxtedj . 
 
 Three methods discussed. 
 Where the last legal opportunity for registration was ten days before election, and 
 contestee asked that a number of precincts be thrown out because voters were per- 
 mitted to register on the day of election and vote, the majority refused to throw 
 out the precincts, but deducted the votes to the number of 55, proportionally froin 
 the candidates. The minority stated the number as 90, and stated arguments in 
 favor of throwing out the whole vote of the precincts where they were cast, and 
 of deducting them all from contestant, who had received the highest numher of 
 votes in these precincts, but did not decide between the.se courses, and waived 
 the whole question in arriving at the result. On the whole case, which involved 
 other questions, the House agreed with the minority. 
 
 Flatt vs. Goode, 44th Cong - .Smith, 656, 682 
 
 Deducted from candidate for whom cast. 
 Where it appeared from the return that votes were given by persons whose names 
 were not on the tax lists, and who were not within the description of such elect- 
 ors' sons as were permitted by the law of Pennsylvania to vote without being on 
 the tax lists, their votes were deducted from the vote of the candidate for whom 
 they were cast. 
 
 Richards, 4th Cong - C. and H., 99 
 
 Votes cast by unqualified persons deducted from the total votes of the candidates for 
 whom they were respectively cast. 
 
 Clapton [Bassett vs. ClojJlon) , 4lh Cong C. and H., 101 
 
 Votes having been cast on both sides by persons not qualified to vote, they were 
 deducted from the votes of the candidates respectively, and the seat given to the 
 petitioner, who had a majority of the remainder. 
 
 Moore vs. Lni'ix, mh Cong C. and H. , 128 
 
 If colored votes subtracted from Bepublican poll, then white votes from Democratic. 
 
 Where contestant proved many colored votes illegal, and offered general evidence 
 
 that the colored votes were castforcontestee, the committee held that white illegal 
 
 votes should be subtracted from contestant's V(5te if colore<l illegal votes were to 
 
 be subtracted from cimtestee. The minority subtracted only the colored votes. 
 
 Williams vs. Settle, 53d Cong Report :>:i7, parts 1 and 2 
 
 Deducted from candidates pro rata. ^ 
 
 "InpurgingthepoUsof illegal votes, thegeneral rule isthatunlessitis shown for which 
 candidate they were cast, they are to be deducted from the whole vote of the elec- 
 tion division, and not from the candidates having the highest number. Of course, 
 in the application of this rule, such illegal votes would be deducted proportionately 
 from both candidates, according to the entire vote returned for each " (quoted from 
 McCrary, sec. 298). This was stated to be the rule to be applied when it could not 
 be shown for whom illegal votes were cast, but in this case it was applied to pre- 
 cincts where it could have been shown but was not. 
 
 FiiiU'i/ vs. Wu/h, 44th Cong Smith, 373 
 
 Where contestee objected to any proof of illegal votes in a precinct because it Avas not 
 alleged in the notice for whom the illegal votes were cast, the committee held that 
 "a poll may be purged of illegal votes without it being proved for whom they are 
 cast." Votes being prox-ed to be illegal, tliey were deducted from the candidates 
 pro rata. 
 
 Finley vs. Walls, 44th ( hug Smith, 371 
 
ILLEGAL VOTES. 727 
 
 Deducted from candidate for wlioin cast, and remainder deducted pro rata. 
 If illegal votes are shown, and there is proof as to which candidate received a part 
 of them these should first be deducted from his vote, and the remainder then 
 deducted pro rata. 
 
 Lowe vs. Wheeler {minority report), 47lh Cony 2 Ells., 142 
 
 Either deducted pro rata or disregarded. 
 In the absence of proof as to how illegal votes were cast they should either be 
 allowed to stand or deducted from all the candidates pro rata. ' 
 
 Hurd vs. Eoniei.1, 49th Cong , Mobley, 425 
 
 Ought not to be deducted pro rata. 
 "We maintain that the true rule is, when illegal votes have been cast, to purge the poll 
 by first proving for whom they were thrown, and thus preserve the true vote; if 
 by the use of due diligence this can not be done, and the result is still left in doubt, 
 then to throw the poll out entirely. We think this is a safer rule to maintain the 
 purity of the ballot box than the other one, which apportions the fraud between 
 the parties. This rule ought to be applied in all cases where the fraudulent vote 
 is considerable and permeates the whole poll, and not in cases where it is scattering 
 and inconsiderable. In those cases it may be justly inferred that the result would 
 not be affected by retaining the poll unpurged." 
 
 Curtin vs. Yocum (minority report, adopted hy the House), 46th Cong 1 Ells., 424 
 
 Deducted from majority candidate in each precinct. 
 Where illegal votes are proved, but it is not .shown for whom they were cast, they 
 should be deducted from the majority candidate in each precinct. "It is on this 
 theory only that the election can be avoided where there are enough illegal votes 
 to affect the result." 
 
 Hurd vs. Romeis {minority report ) , 49th Cong Mobley, 452 
 
 Where no proof for whom cast, no remedy. 
 Where 87 illegal votes were cast at a precinct, but there vas no proof of fraud or 
 which candidate received any of the votes, the minority held that the return must 
 stand and that no votes could be deducted. 
 
 Myers vs. Moffelt {minority report), 4ist Cong 2 Bart., 585 
 
 Where they can be purged, the poll not rejected. 
 Where more than half the votes cast in a precinct were illegal, but from the evidence 
 it was possible to tell the largest number that could have been illegal and for 
 whom they were cast, the committee rejected these votes and counted the rest. 
 Todd vs. Jayne, SSlh Cong 1 Bart., 559 
 
 "The rule is well settled that the whole vote of a precinct should not be thrown out 
 on account of illegal votes having been cast, if it be practicable to ascertain the 
 number of illegal votes and the person for whom cast, in order to reject them and 
 leave the legal votes to be counted. Legal votes are not to be thrown out in order 
 to get rid of illegal votes unless necessity requires it as the only means of prevent- 
 ing the consummation of a fraud upon the ballot box." 
 Barnes vs. Adams, 41st Cong 2 Bart., 770 
 
 Election not vitiated by. 
 Where it appeared that a very large number of illegal votes was probably cast, but 
 no more than might have been expected iR an unsettled frontier country, but there 
 was definite proof as to only a few and no proof that more were likely to have 
 been cast for one candidate than another, and nothing connecting any candidate 
 with procuring them to be cast, the election was allowed to stand. 
 Burleigh and Spink vs. Armstrong, 4Sd Cong Smith, 91 
 
 If election invalidated, it ia only in particular polls. 
 "If the rule contended for by contestant is adopted [to declare an election void where 
 so 'many illegal votes were cast as to render the result uncertain] we maintain it 
 must be applied to the polling precincts where contestant alleges the fraud occurred. 
 
728 DIGEST OF CONTESTED ELECTION OASES. 
 
 Then eacli party is left to prove his vote by calling the voters in the rejected pre- 
 cincts. If they do not, they must stand on the vote of the other unchallenged pre- 
 cincts, and can not be heard to complain of their own negligence. 
 
 Ciirlin vs. Yocum {minority report, adopted hii the House), 46ih Cong 1 Ells., 424 
 
 Rejection of whole poll to be avoided if possible. 
 The exclusion of an entire poll is the very last resort, and it must never be done 
 where there is any rational means by which the illegal votes can be eliminated. 
 This rule was approved by both majority and minority, but thi-y differed a.s to the 
 possibility of purging the poll in this case. 
 
 Le Moyne vs. Farwell, 44th Cong Smith, 411, 422 
 
 Whole poll thrown out, 
 Where in two precincts very many voters whose names were not on the assessment 
 lists were permitted to vote without requiring of them the proof of qualification 
 prescribed by the law of Pennsylvania in such cases, and there was no proof for 
 whom most of these votes were cast, the committee threw out the whole vote of 
 both precincts. 
 
 Myen vs. Moffelt, 41st Cong 2 Bart., 567 
 
 Election should be declared void. 
 Where illegal votes sufficient to affect the result are shown, but there is no proof as 
 to how they were cast, the election should be declared void. 
 
 Hurd va. Romeis {Mr. Green) 49th Cong ; Mobley, 428 
 
 In case of doubt, better to order a new election. 
 
 The rule that where illegal votes are proved, but it is not shown for whom they were 
 cast, they shall be "deducted proportionately from both candidates according to 
 the entire vote returned for each," "is, perhaps, the best rule that can be adopted 
 in such a case. It is manifest, however, that it may sometimes work a great hard- 
 ship, for the truth might be, if it could be shown, that all the illegal votes were 
 cast for one of the candidates, while it is scarcely to be presumed that they would 
 ever be divided between the candidates in exact proportion to their whole Y(jte. 
 But the rule that would deduct them all from either one of the candidates, in the 
 absence of proof as to how the illegal votes were cast, is much more unreasonable 
 and dangerous. The above rule 's, perhaps, the safest one to be adopted in a 
 court of justice, where there is no power to order a new election, and where great 
 injury would result from declaring the oiSee vacant. But it is manifest, as we 
 have already said, that it might work a great hardship. And in a legislative body, 
 having the power to order a new election, it is safer, in the opinion of voiir com- 
 mittee, and more conducive to the ends of justice, to order such new election than 
 to reach a result by the application of such a rule." 
 
 The minority held that the votes should be deducted pro rata. 
 
 Finley vs. Bisbee, 45th Cong 1 Ells., 93, 118 
 
 Required Evidence of Qualification not Produced at the Polls. 
 
 Not registered, and no record of other proof of qualification, rejected. 
 
 Where names were found on the poll books [in Pennsylvania] which were not found 
 on the assessor's list, and there^were no reasons for the reception of the votes 
 marked after these names, as was required by law, to show that they had made due 
 proof of qualification, the committee held the votes to be illegal. " The minority 
 held that it was a mere immaterial omission by the election officers. 
 
 Wright vs. Fuller, 33d Cong.. I Bart., 159, and Report No. 136, Istsess. 32d Cong. 
 
 Unregistered voters (in Florida) must be shown to have taken the full oath required. 
 The law of Florida provided that voters must be registered at least six days before 
 the election. The registering officers had authority to strike from the list the 
 nanies of persons whom they knew of their own knowledge or ascertained by 
 testimony to have ceased to be entitled to vote. A voter whose name had thus 
 been erased would be entitled to vote on making oath before the officers' of election 
 that his name had been improperly stricken from the hsts, and also taking the oath 
 
ILLEGAL VOTES. 729 
 
 required of challenged voters. A large number of persons had been permitted to 
 vote whose names were not found on the list in the hands of the judges at the 
 polls. They each took an oath, but there was testimony which the committee 
 held to be sufficient to prove that it was the oath' required of challenged persons, 
 ^yithout the addition prescribed for persons whose names were not on the registry 
 lists. There was proof that a large number of these voters' names actually did 
 appear on the original registry lists, though not on the copies in the hands of the 
 judges. The committee deducted only those whose names were. not shown to be 
 on the original lists, but a part of those signing the majority report expressed 
 their opinion that all should have been deducted who were not found on the copy 
 of the list in the hands of the judges, whether found on the original list or not. 
 Finky vs. Walh, 44lh Cong Smith 367-391. 
 
 Must be shown, in Tlorida, never to have been registered. 
 Under the constitution and laws of Florida no person was permitted to vote who had 
 not been registered, but a voter whose name was not found on the registry list in 
 the hands of the election officers might vote on taking the oath required of chal- 
 lenged persons, and also making oath that he had been registered and that his 
 name had been improperly struck off from the registry list. It was proved that a 
 large number of persons had voted whose names were not on the registry lists. 
 Evidence which the committee held to be inadmissible was also offered to show 
 that they had never been registered. The.committee held that the admissible testi- 
 mony only showing that they were not registered at the time of the election it was 
 not sufficient to overcome the presumption arising from the reception of their votes, 
 it being jjresumed that they had been registered and wrongly struck from the list, 
 and that they had taken the required oaths. 
 
 Finley vs. Bisbee, 4Sih Cong 1 Ells., 92-96 
 
 Votes of qualified electors, received without required proof of qualification, legal. 
 
 Under the constitution of Florida foreign-born persona were permitted to vote under 
 the same conditions as native citizens upon presenting to the officers of election 
 certified copies of their naturalization papers or declarations of intention. The 
 election officers were forbidden to receive their votes without. the presentation of 
 such certificates. A number of foreign-born persons voted at the election with- 
 out presenting the required certificates. None of their votes were challenged and 
 they were not requested or required by the officers of election to produce any papers. 
 The evidence showed that all but seven of them had, in fact, been naturalized and 
 could have produced the legal certificates if it had been required of them. The 
 committee found that the fact of naturalization or declaration of intention was the 
 only additional (jimlificalion required by the constitution of foreign-born persons, 
 and that the requirement of the production of certificates was a mere directory 
 requirement as to mode of proof. This construction of the constitution was the 
 more certain because it was evidently implied in the acts of the legislature passed 
 in pursuance of it. These votes having been received by the officers of election, 
 the presumption was that the voters were qualified. The omission to present the 
 required proof uf qualification could, at most, only shift the burden of proof to the 
 party claiming their votes to show that they were in fact qualified. This had been 
 done as to all but seven, and with these exceptions the votes were counted. 
 
 Plnley vs. Bishee, 4Sth Cong ■ 1 Ells., 89-92 
 
 In Pennsylvania law requiring certain affidavits and vouchers from nonregistered 
 voters directory merely. 
 Under the constitution of Pennsylvania, which provides the qualifications of voters 
 and permits the legislature to enact a registration law, "but no elector shall be 
 deprived o^the privilege of voting by reason of his name not being registered," 
 the committee held that "the foregoing clause of the constitution is, in our judg- 
 ment, a limitation on the power of the legislature of the State, and it can not pass 
 a registry law whereby a voter shall be deprived of suffrage, if otherwise qualified, 
 by reason of nonregistration. This, it seems to us, was the very purpose of the 
 clause." If the election law is so construed as to hold the elector responsible for 
 the neglect of the election officers, or to deprive him of his vote for nonregistra- 
 tion, though otherwise qualified, it is repugnant to this clause of the constitution. 
 But by construing the law as directory its constitutionality can be maintained. 
 
 Curtin vs. Yocum {minority report, adopted by the House), 4-Sth Cong. . 1 Ells. , 419, 420 
 
730 DIGEST OP CONTESTED ELECTION CASES. 
 
 In Pennsylvania if election officers fail to require of unregistered voters the affidavits 
 required by law the votes not illegal if otherwise qualified. 
 ' ' We regard section 10 of the election la w of Pennsylvania, supra, so far as it requires 
 a qualified elector to produce his own affidavit and that of a voter of his election 
 district to his qualifications, directory merely, and in the nature of a law to author- 
 ize the board of election, on the day of election, while it is being held, to correct 
 the registry lists theretofore furnished them by the county commissioners, by add- 
 ing the names of qualified voters thereto who may have been unintentionally 
 omitted. The registry lists and poll lists will then agree. It is the duty of the 
 election officers to comply with this law. It is imperative on them, and if they 
 fail they subject themselves to the penalties provided in section 12 of the registry 
 law. But to allow a nonregistered voter to vote without requiring him to comply 
 with the law, if he is otherwise qualified, is quite a different question. If he refuses 
 to comply, on being requested, then it is clearly the duty of the officers to refuse 
 his vote, because he refuses to obey a reasonable regulation prescribed by the legis- 
 lature, and he hurts no one but himself. But if he is allowed to vote without being 
 required to file the affidavits, and is otherwise qualified, his vote in not an illegal 
 one. The officers of election have simply failed to take and preserve the evidence 
 which the law requires of them; but the failure on their part to take and preserve 
 this Svidence does not reach the qualification of the voter. Xordo we believe the 
 courts will hold any such doctrine, for it ^^'Ould be equivalent to holding the e\-i- 
 dence of a fact superior to the fact itself." 
 
 Curlin vs. Yocum [in'mority report, adopted by the House), 4Sth Cong 1 Ells., 420 
 
 The minority applied to the case of foreign-born voters who did not present their 
 
 certificates of naturalization at the polls the rules adopted by the House in the 
 
 case of Curtin vs. Yocum, and held that the votes could not be deducted in the 
 
 absence of proof of actual disqualification. 
 
 Bishee vs. Finley [minority report), 47th Cong 2 Ells., 237 
 
 Affidavits of unregistered voters certified but not signed. 
 Where affidavits of unregistered voters were not signed by the affiants, but were 
 properly certified by the officer before whom they were taken, the committee unan- 
 imously held them to be sufficient; but when there was no jurat attached, and they 
 did not appear to have been sworn before any officer, they were unanimously held 
 to be fatally defective. 
 
 Le Moyne vs. Farwell, 44th Cong Smith, 412, 422 
 
 Absence of affidavits in prothonotary's office no evidence that they were not filed with 
 the election officers by the voters. 
 
 " The rule of law is that a public officer is presumed to do his duty, the contrarv not 
 appearing. Under the law there were several acts required to be done by the offi- 
 cers. The first one was to ascertain whether a person offering to vote was regis- 
 tered; if he was not, to require an affidavit of himself and also of a registered voter 
 to certain facts; to see that it was subscribed and sworn; to take and keep it till 
 the election was over, and then to return it to the prothonotary's office, with certain 
 other papers. To show that the last act was not performed does not show that the 
 rest were left undone, or that proof of failure in this one particular is proof of a failure 
 in all. It doubtless does overcome the presumption as to the particular act, but we 
 doubt whether it can be extended any further. We are not ready to assent to the 
 proposition that because the election officere failed to return the required affidavits 
 to the office of the prothonotary therefore they must be presumed not to have 
 required them at all." 
 
 Curlin \s. Yocum [minority report, (uloj}le<! liy the House) , 46th Cong I Ells., 421 
 
 In Pennsylvania law requiring affidavits of nonregistered voters mandatory, but law 
 for filing these affidavits directory. 
 
 It was held by a portion of the committee that the provision of the Pennsylvania 
 election law requiring certain affida\its of unregistered voters was mandatory, but 
 that the provision requiring these aflidavits to be filed in the office of the prothono- 
 tary was directory. It is to be strongly presumed that the officers of election have 
 not committed the crime of allowing unregistered persons to vote without requiring 
 the necessary affida\-its, and this presumption is not to be overcome withoutevidence 
 and merely l)y a remote inference from the fact that no nuch affidavits are on file in 
 
ILLEGAL VOTES. 731 
 
 the prothonotary's. office. And especially is contestant not to be permitted to take 
 advantage of the absence of these affidavits when the evidence tends to show that 
 the affidavits were in existence, and contestant by his own act procured their destruc- 
 tion and prevented them from being put in evidence. 
 
 Ourtin vs. Yocum {$d minority report), 48th Cong 1 Ells., 435-438 
 
 Begistration law of Feunsylvauia mandatory, 
 "The authorities are uniform to the effect that all statutes are mandatory which can 
 not be disregarded without ignoring the legislative intent" Under this principle 
 the provisions of the election law of Pennsylvania requiring the presentation of cer- 
 tain affidavits by unregistered voters are not directory merely, but mandatory. 
 "The will of the legislature can not be carried out unless this provision of the 
 statute is complied with, and to disregard it is to disregard one of the safeguards 
 which the law-making power of Pennsylvania deemed necessary for the protection 
 of the ballot." 
 
 Curiin vs. Yocum (majoriii/ report), 46th Cong 1 Ells., 428 
 
 The evidence of qualification required by law must be produced on tbe day of election, 
 and can not be afterwards produced. 
 
 " It is a fundamental principle as firmly established as any rule of law that votes 
 must be cast as the law directs, and if the law requires the voter to produce certain 
 specified evidence of that right before he can cast his vote, and he fails to produce that 
 evidence, such vote, if cast, is illegal and void. * * * The principle must likewise 
 be maintained that the production of this evidence at the trial will not change the 
 legal status of the voter, and thus make these votes in question legal votes. * * * 
 The principle is self-evident. Voting is a single act commanded to be performed 
 within a particular time, on a particular day, and in conformity with law; there 
 can not, therefore, be a valid performance of the requirements of the law at a period 
 subsequent to the day on which alone the law commanded the act to be performed." 
 Bisbee vs. Finley, 47th Cong 2 Ells., 175 
 
 Law requiring affidavits of unregistered voters only partly mandatory. 
 "Where a registry law requires the production of an affidavit by an unregistered 
 elector as the condition for his voting it is mandatory to a certain degree and for a 
 certain purpose. It is mandatory so far as to require good faith in its observance 
 and to prevent its willful evasion. But the whole scope and purpose of such a law 
 is to defeat fraud, subterfuge, and evasion, and to enable every lawful and quali- 
 fied voter to vote and have his vote counted in a canvass purged of all illegal votes. 
 The moment the operation of the registration defeats itself, operates to defraud the 
 legal elector and defraud him of his vote, it not only ceases to be mandatory, but 
 is quoad hoc void. * * * But the statute, in so far as it provides what declara- 
 tions shall be set forth in the affidavits, is directory merely." 
 
 The minority (Mobley, 672) held the law to be mandatory in both respects. 
 
 Campbell vs. Weaver, 49th Cong Mobley, 461, 463 
 
 Affidavits in substantial compliance witb law sufficient. 
 
 Votes were attacked on the ground that the affidavits presented by the voters in lieu 
 
 of registration were not sufficient under the law of Illinois. The committee found 
 
 most of them 10 be in substantial compliance with the laws, but rejected five votes 
 
 where the affidavits had not been filled out at all — "were in fact blank affidavits." 
 
 Worthington vs. Post, SOth Cong Mobley, 653 
 
 Can not be made legal at a subsequent investigation. 
 
 "Under the [Pennsylvania] act of January 30, 1874 (P. L., 31), it is the duty of the 
 elector whose name is not on the registry list to produce the required affidavits at 
 the time he offers to vote. Election oificers can not waive such production. A 
 vote received without such affidavit is illegal, and can not be made legal at a sub- 
 sequent investigation in the courts" [cases cited]. 
 
 Craig vs. Stewart, 5Sd Cong : - Stofer, 9 
 
 The minority expressed a "doubt" of this ruling, but did not definitely dissent. 
 
 Craici vs. Stewart [minority report), 'irid Cong Stofer, 16 
 
732 DIGEST OF CONTESTED ELECTION CASES. 
 
 Ballots marked by election officers, without repaired oath of disability, counted. 
 Where voters were assisteil by the election officers to prepare their ballots without 
 taking the oath of disability provided for by law [in Illinois], but did informally 
 ask for the assistance and were known or believed by the judges to be entitled to 
 it, the committee counted their votes. The minority rejected them. The House 
 adopted the resolutions proposed by the minority on the whole case, but on this 
 point appears to have agreed with the majority. 
 
 Rinaker vs. Downing, 64lh Cong Report 1400 
 
 Not counted. 
 The minority held that the law was mandatory. Under the old ballot laws such 
 provisions could be more liberally construed, but "under the Australian ballot 
 system secrecy is not merely permitted, it is enforced; it i.s not solely for the ben- 
 efit of the voter, but for the benefit of the public as well. A compulsory secrecy 
 unknown to former systems of voting is a fundamental anrl essential element o£ 
 this ballot law." 
 
 Rinaher vs. Downing {minority report), 54th Cong Report 1400, part 2, pp. 5-10 
 
 Ballots marked by election officers, withont required oath of disability, not connted. 
 "Ballots voted by electors who were assisted in marking their ballots without having 
 first made the affidavit of disability, as provided by said statute [of Illinois], are 
 not legal and should not be counted." 
 
 SleiKirrl VS. ChihJit, 53d Cong Report 1741, p. 3 
 
 Votes rejected. 
 Under a mandatory statute requiring the production at the polls of specified evidence 
 of payment of poll tax as a prerequisite for voting, the committee rejected the votes 
 of voters who had in fact paid the tax and were known to the judges, by other evi- 
 dence than that specified in the law, to have paid it. The minority counted the 
 votes. 
 
 Thrasher vs. Enloe, 63d Cong Report 842, pp. 4, 11 
 
 INCOMPATIBLE OFFICE. 
 
 See Qualifications of Representatives. 
 
 INDIANS. 
 
 Their right to vote. 
 Under the law for the government of the Territory of Michigan, providing that 
 "every lohite male citizen," possessing certain qualifications, might vote, held that 
 the right of half-breed Indians, possessing the legal qualifications, depended on 
 their mode of life and the society to which they belonged. One of them, who, by 
 his manner of living and place of abode, was assimilated to the great body of the 
 civilized community, and who had never belonged to any Indian tribe, could vote; 
 but one who belonged to an Indian tribe or was "uncivilized in his deportment 
 and not approaching the manner of other citizens" could not vote. 
 
 Biddle and Richard vs. Wing, 19th Cong C. & H., 511 
 
 Votes of tribal Indians rejected. 
 Where Indians, at their own pueblo, without authority from the probate judge, 
 organized an election; appointed their own chiefs to conduct it, and made their 
 returns direct to the Secretary of the Territory, instead of to the probate judge, the 
 committee threw out the votes. 
 
 Lane vs. Gallegos, 33d Cong 1 Bart., 165 
 
 INDIAN RESERVATIONS. 
 
 Whether trespassers on "half-breed lands" entitled to vote. 
 The committee held that trespassers on "half-breed lands" (similar to Indian reser- 
 vations in some respects) were entitled to vote. The House refused to sustain the 
 committee, the decision turning, apparently, chiefly on this jioint. 
 
 Bennct vs. Cliupman, S4th ( hng 1 Bart., 208 
 
INDIAN EESEEVATIONS. 733 
 
 Inhabitanta of, have no right to vote. 
 Votes cast in a precinct situated in the Pawnee Indian Reservation, which by the 
 law of Congress was not a part of Nebraska Territory, were excluded by the com- 
 mittee. 
 
 Daily vs. Estabrook, 36th Cong 1 Bart., 303 
 
 Residents on, can not vote. 
 The committee rejected votes cast by residents on the Pawnee Indian Reservation, 
 which was under the law no part of Nebraska Territory, but counted votes cast by 
 residents of the "half-breed land," which was not an ordinary Indian reservation. 
 
 Mortonve. Daily, 37th Cong 1 Bart, 404, 410 
 
 Votes cast in, illegal. 
 
 Elections held oq Indian reservations in the Territory of Dakota held to be illegal, 
 
 the organic act organizing the Territory excepting from its territory those Indian 
 
 reservations which under existing Indian treaties could not be made a part of any 
 
 State or Territory without the consent of the tribes. 
 
 Burleigh and Spink vs. Armstrong, 4Sd Cong -. Smith, 90 
 
 Where not set aside by treaty, votes cast in them legal. 
 Under the provision of the organic act of the Territory of Dakota, excluding from 
 its limits lands not permitted by treaties with Indian tribes to be included 
 within the limits of any State or Territory without the consent of the tribe, the 
 committee held that "It does not apply to any portion of the Territory upon which 
 Indians may happen to live, but only such portions as are held by particular tribes, 
 under and by virtue of treaties defining boundaries, and stipulating the exclusive 
 jurisdiction to be exercised by the tribes holding them." Votes cast in a precinct 
 in territory largely inhabited by Indians, but not under such a treaty, the votes 
 not being shown to be otherwise illegal, were counted by the committee. 
 
 Todd vs. Jayne, SSth Cong 1 Bart, 563 
 
 INEIilGIBILITT (see also Qualifications of Representatives) . 
 
 Ineligibility of majority candidate gives no title to minority candidate. 
 The ineligibility of the candidate receiving the highest number of votes gives no 
 title to the candidate receiving the next highest number. (A very full discussion 
 of the English rule and the reasons for its inapplicability in this country will be 
 found in this case. ) 
 
 Smith vs. Broiim, 40th Cong 2 Bart., 400-405 
 
 The ineligibility of the majority candidate gives no title to the candidate receiving 
 the next highest number of votes. 
 Jones vs. Mann, 40th Cong 2 Bart., 475 
 
 The majority of the committee announced their opinion that the ineligibility of a 
 majority candidate ought to involve the election of the candidate receiving the 
 next highest number of votes, but they yielded their conviction to the authority 
 of contrary precedents. 
 
 Wallace vs. Simpson (majoriiy report), 41sl Cong 2 Bart., 552 
 
 Ineligibility of member-elect gives no claim to the candidate receiving the next 
 highest number of votes. 
 Maxwell vs. Cannon, 43d Cong Smith, 190 
 
 Ineligibility of the sitting member gives to the minority candidate no title to the 
 seat. 
 
 Cannon vs. Campbell, 47th Cong 2 Ells., 613-619 
 
 Ineligibility of the sitting member gives no title to the candidate having the next 
 highest number of votes, even in the case of a representative from Indiana, though 
 the rule in the State of Indiana is different. 
 
 Lovrry vs. White, 30th Cong Mobley, 638 
 
 \ 
 
734 DIGEST OF CONTESTED ELECTION CASES. 
 
 Whether ineligibility of majority candidate gives title to minority candidate. 
 The law of Georgia provided that where the majority candidate was ineligible the 
 election should go to the candidate having the next highest number of votes. The 
 committee expressed some doubt whether such a law could apply to the elections 
 of members of Congress,' but refrained from deciding the question, it not being 
 necessary to the determination of the case. 
 
 Christy vs. Wimpy, 40th Cong 2 Bart., 466 
 
 Ineligibility of majority candidate ought to give election to minority candidate. 
 Mr. Cessna reported that where a majority candidate was notoriously ineligible under 
 the fourteenth amendment, votes cast for him ought to be treated as nullities, 
 and the election adjudged to the candidate receiving the next highest number of 
 votes. The House sustained the report, but probably on other grounds. 
 
 Wallace vs. Simpson, 41st Cong 2 Bart., 732 
 
 Where notice of ineligibility of majority candidate presumed minority candidate 
 elected. 
 Where votes are cast for an ineligible candidate whose ineligibility is suc'h that the 
 electors are bound to know and take notice of it, such votes are nullities, and the 
 eligible candidate receiving the highest number of votes is elected. 
 
 Wood, vs. POers [Mr. Bennett) , 48th Cong - - Mobley, 121 
 
 INHABITANT. 
 
 See also Qualifications of Representatlvbs. 
 
 Definition of. 
 The word "inhabitant" comprehends those who are "6o7ia_^d€ members of the State, 
 subject to all the requisitions of its laws and entitled to all the privileges and 
 advantages which they confer." 
 
 Bailey, 18th Cong C. and H., 415 
 
 What constitutes. 
 Claimant had been for many years a resident of Virginia, but a few years before the 
 election he moved to Ohio, and voted there once or twice. Some months before 
 the election he returned to his previous residence in Virginia, with his family, and 
 remained. The committee held him to be an inhabitant of Virginia and eligible 
 to Congress. 
 
 Upton, S7th Cong .1 Bart., 369 
 
 Difference between inhabitant and citizen. 
 "The word inhabitant comprehends a single fact, locality of existence; that of citizen 
 a combination of civil privileges, some of which may be enjoyed in any of the 
 States in the Union. The word citizen may properly be construed to mean a mem- 
 ber of a political society; and although he might be absent for years, and cease to 
 be an inhabitant of its territory, his rights of citizenship may not be therebj^ for- 
 feited, but may be resumed whenever he may choose to return; or, indeed, such 
 of them as are not interdicted by the requisition of inhabitancy may be considered 
 as reserved." 
 
 Bailey, 18th Cong C. and H., 415 
 
 Inhabitancy in State lost by Government employment at Washington. 
 A person in the employ of the Government at "Washington, though retaining his citi- 
 zenship in the State whence he was appointed, and intending to return thereto, 
 held not to be an inhabitant of the State within the meaning of the Constitution, 
 and hence not eligible to Congress. 
 Bailey, 18th. Cong 0. and H., 411 
 
 A foreign minister does not lose his inhabitancy. 
 A citizen having been elected to Congress while holding the office of minister to Spain, 
 but having resigned the latter oflBce before March 4, the committee reported: 
 "The capacity in which he acted excludes the idea that, by the performance of 
 
INHABITANT. 735 
 
 his duty abroad, he ceased to be an inhabitant of the United States; and, if bo, , 
 inasmuch as he had no inhabitancy in any other part of the Union than Georgia, 
 he must be considered as in the same situation as before the acceptance of the 
 appointment. ' ' 
 
 Forsyth, 18th Cong C. and H., 497 
 
 The case of ministers of the United States residing at a foreign court presents no 
 analogy to that of persons in the domestic service of tlie Government at Washington. 
 The former retain their inhabitancy in their respective States; the latter do not. 
 
 Baikii, 18th Cong 0. and H., 418 
 
 Voting citizenship not necessary. 
 
 A member of Congress must be an inliabitant of the State from which he is elected, 
 but he need not nave a voting citizenship. 
 
 Bayley vs. Barbour, 47th Cong 2 Ells., 679 
 
 Not a mere sojourner. 
 "To be an inhabitant vyfithin the meaning of this section of the Constitution, if it 
 does not mean resident or citizen, certainly means more than sojourner." The tem- 
 porary sojourn of claimant in North Carolina, for the purpose of being private sec- 
 retary to a military governor, held not to constitute him an inhabitant. 
 
 Pigotl, 37th Cong 1 Bart. , 464 
 
 INSPECTOKS. 
 
 See Officers of Election. 
 
 INTIMIDATION. 
 
 What Is. 
 
 A cannon near the polls not intimidation. 
 Where a cannon was drawn in apolitical procession the night before election, and on 
 election day it was in a place in front of the polls, where it had customarily been, 
 and it was fired twice on election day, but in sport and without ball, and not at 
 times when voters were approaching the polls, the circumstance was held to be 
 without significance. 
 
 Whyte vs. Harris {minority rej>ort), 35th Cong Keport 538, p. 46 
 
 Coarse and threatening language not sufficient. 
 Where the polling place was fixed in an unusual and inconvenient place, and coarse 
 and threatening language was used against persons intending to vote for contest- 
 ant for the purpose of intimidating them, the committee "can not for such rea- 
 sons recommend the throwing out of the whole vote of such precinct." 
 
 Chaves vs. Clever, 40th Cong 2 Bart., 468 
 
 Inflammatory language, not affecting the result, immaterial. 
 Where it was shown that the canvass was a heated one, and much inflammatory 
 and denunciatory language used, by the contestee and others, in regard to colored 
 voters who would vote the Democratic ticket, and that three or four voters were 
 intimidated thereby, it was held that this did not constitute such a condition of 
 violence and intimidation as to affect the result. 
 
 Bromberg vs. Haralson, 44ih Cong Smith, 366 
 
 Voluntary withdrawal of voters, without sufficient justification, not fatal. 
 Where there was considerable violence and excitement at a poll, and colored voters 
 attempting to vote early in the day were forcibly prevented, but by 10 or 11 o'clock, 
 under the advice of one of their leaders, they dispersed and did not again attempt 
 to vote at that poll, there being no display of violence sufficient to justify this course, 
 a majority of the committee did not think the evidence sufficient to justify the rejec- 
 tion of the poll, especially as under the law (of South Carolina) these voters could 
 have voted at any other poll in the county. 
 
 Lee vs. Richardson, 47th Cong 2 Ells., 521 
 
736 " DIGEST OF CONTESTED ELECTION CASES. 
 
 Social and religions ostracism. 
 "It need not be that there is at the time of voting the presence of threats, or of force, 
 or the present fear of actual bodily hurt. The genius of free institutions demands 
 that the mind as well as the body shall be free to exercise the elective franchise as 
 the voter may see fit. The fear of boddy harm, the fear of social ostracism, the 
 fear of religious wrath, if brought to bear upon the body of voters, or it exercised 
 to any great extent, mar the purity aud destroy the freedom of elections, and if it 
 be so general as to affect the result, or if from it the real result can not be asMr- 
 tained from the returns, the election is void." 
 
 Richardson vs. Rainey, 45lh Cong 1 Ells. , 233 
 
 Numbering of tickets not intimidation. 
 Where it was shown that some colored voters voted numbered Democratic tickets 
 (the tickets generally not being numbered), but it was not shown that they did 
 not do so voluntarily, the committee held that the fact was not proof of intim- 
 idation. 
 
 Fiiileyvs. Bishee, 45th Cong 1 Ells., 103 
 
 Citizen not bonnd to fight his way to the window. 
 "The committee holds that a citizen has a right to a free and unmolested approach 
 to the ballot box, and is not bound to fight his way to a polling window, especially 
 when to do so he must come into conflict with persons who claim to be officers of 
 the law, the truthfulness of which claim he has no means of negativing, and that 
 a candidate whose supporters have done all in their power to make voters believe 
 that they would suffer injury if they attempted to vote can not be heard to say 
 that the intimidated voters should not have believed the threats made to them." 
 Mudd vs. Compton, 51sl Cong Rowell, 158 
 
 Disturbance before opening polls, not fatal. 
 Where there was a disturbance before the opening of the polls, but the election 
 itself was orderly and there was no intimidation, the returns were allowed to 
 stand. 
 
 Robinson vs. Harrison, 54ih Cong Report 1121, p. 2 
 
 Must be sudh a display of force as to intimidate men of ordinary firmness. 
 A poll can not be rejected for intimidation unless there was such a displav of force as 
 ought to have intimidated men of ordinary firmness. In a case where the violent 
 interference with the voting was such as might easily have been overcome bv the 
 voters, but they abstained from trying to vote, under the orders of their leader, for 
 the purpose (as the minority thought) of making out a c'ase of intimidation that 
 would cause the rejection of the poll, thereby making a gain for the candidate 
 favored b}- them, the minority held that the poll should not be rejected. 
 
 Mudd vs. Campion {minority report), 51st Cong Rowell, 169 
 
 Need not be such as would overpower the will of voters of reasonable courage. 
 Coercive methods do not operate alike on all voters. Regard should always be had 
 to the mental and physical organization and environment of the particular voters 
 concerned. The oppressive acts need not be such as would overpower the will of 
 voters of reasonable courage, otherwise the weak and ignorant would be disfran- 
 chised. Neither is physical violence the .sole criterion, nor should the examina- 
 tion be limited to acts committed at the verv time of the election. Preceding 
 occurrences often give significance and momentum to recent acts. 
 Bcnoit vs. Boalner (C'd case) , 54th Cong Report 1>80S, p. 1'6 
 
 Interference by negro policeman insufficient. 
 Where a negro policeman forcibly interfered with negro workers and ticket distribu- 
 ters for the Democratic ticket and there was some evidence that colored voters 
 were thereby intimidated, the committee held that the intimidation was not suffi- 
 (tieht to throw out the poll. 
 
 Moure vs. Funslon, 53d Cong Report 1164, p. 8 
 
INTIMIDATION. 737 
 
 When Inhuieed Into. 
 
 The committee will not inquire into tlie reasons wliy votes were not cast. 
 Where it was charged that voters were prevented from voting by intimidation, the 
 committee said: " The committee are of opinion that the duty assigned to them 
 does not impose on them an examination of the causes whioii may have prevented 
 any candidate from getting a sufficient number of votes to entitle him to the seat. 
 They consider that it is only required of them to ascertain who had the greatest 
 number of legal votes actually at the election. * * * The inspectors of elec- 
 tion are constituted judges of the qualiiications of the electors, and exercise, from 
 necessity, a discretionary power. If they err and reject a legal vote, or an elector 
 from any cause should fail in presenting his vote for their reception, the nature of 
 the case precludes it from entering into the consideration of the general result of 
 the election, unless, indeed, corruption should appear sufficient to destroy all con- 
 fidence in the purity and fairness of the whole proceeding. It is properly a ques- 
 tion between those officers and the injured party." 
 
 Biddle and Richard vs. Wing, 19th Cong C. and H., 506 
 
 How Proved. 
 
 Hearsay and general reputation insufficient. 
 "It would seem that if over two thousand electors were deterred from voting by 
 \iolence, threats, or intimidation, some of these electors could be found to come 
 forward and swear to the fact. Your committee think that it would establish a 
 most dangerous precedent to allow a fact of this character, so easily established by 
 the direct and positive testimony of so many witnesses, to be proven solely by 
 hearsay and general reputation. We have not forgotten nor overlooked the fact 
 that the same state of things which would make men afraid to vote for a particular 
 party might also make it difficult to secure testimony in behalf of that party. But 
 in many parts of the district where testimony was taken there is no pretense that 
 witnesses were intimidated; and, besides, if the contestant had shown to the satis- 
 faction of the House that witnesses needed the protection of the Federal Govern- 
 ment in order to be sa^e in testifying fully and freely, that protection would have 
 been afforded at any cost. * * * There can be no doubt that testimony of this 
 character [hearsay and general reputation] ought to be held insufficient of itself to 
 establish the fact of intimidation. It ought at least to be corroborated by other 
 facts, such as the unexplained failure of large numbers of those alleged to have 
 been intimidated to vote before the House could safely act upon it." 
 
 Norris vs. Hundley, 4^d Cong Smith, 75 
 
 The evidence of at least some of the persons intimidated shoald be prodnced. 
 "Where it is alleged that a large number of persons have been deterred from voting 
 by violence or intimidation the testimony of these persons should be produced, or 
 at least some of them. The opinions and impressions of others are not sufficient." 
 
 Donnelly vs. Washburn {minority report) 46th Cong 1 Ells. , 502 
 
 Smalls vs. Tillman {minority report) 47th Cong 2 Ells., 490 
 
 Effect of. 
 
 In cases of doubt the returns should stand. 
 " It may be difficult to determine what precise amount of disorder, obstruction, and 
 even violence among bystanders adjacent to the polls should be deemed sufficient 
 to vitiate the election. * * * If the state of facts proved leave it doubtful 
 whether on the whole the poll should be retained or rejected, your committee are 
 of opinion that they will best avoid the establishment of bad precedents by giving 
 effect to the returns in all cases of doubt." 
 Howardvs. Cooper, 36th Cong 1 Bart, 281 
 
 Mere personal altercations will not vitiate poll. 
 "A mere fight or series of fights, even if the election officers should be involved in 
 them, is no ground for throwing out the vote of the precinct at which such fight- 
 ing took place. There must be an organized, concerted design to intimidate and 
 
 H. Doc. 510 47 
 
738 DIGEST OF CONTESTED ELECTION CASES. 
 
 ovfrawe in order to justify the disfranchisement of the whole community of a pre- 
 cinct, ward, or county; a mere accidental conflict between two or more persons is 
 not sufficient. This is well settled by Congressional precedents." 
 
 B/air vs. Barrett {minority report), 1st sess. 36lh Cong Report No. 563, p. 56 
 
 Will not vitiate election where proceedings not snspended. 
 The minority (whose conclusions were substantially adopted by the House) held that 
 allegations based upon "intimidation of voters" did not contain any ground upon 
 which the election could be declared void if they were proved, and the statements 
 upon the subject made in Biddle and Richard ra. Wing (C. and H., 507) were 
 quoted with approval. "Let us once establish the precedent that Representatives 
 are to be unseated and the will of the people, especially when expressed by large 
 majorities, overruled, because of violence at the polls, and while it will put all our 
 city elections in the power of the riotous and rowdy, it will inaugurate a new 
 rule as to future cases as unsound in principle as it will be bitter in its fruits." 
 Wliyte vs. Harris (minority report), 36th Cong 1 Bart., 263, 266 
 
 Where election not arrested and result not changed, election not vitiated. 
 The committee held that in order to void an election for violence it must be shown 
 either that the violence actually arrested the election, or that voters were pre- 
 vented from voting, whose votes, if cast, would be sufiicient to change the result. 
 
 Harrison -vB. Dams, 36th Cong 1 Bart., 345 
 
 Proceedings not interrnpted, and violence some time before election, result shonld 
 stand. 
 "To invalidate or make void an election on the ground of riot and intimidation, it 
 must appear that the proceedings at the election were interrupted and the ascertain- 
 ment of the result prevented thereby." Where the violence was several days 
 before the election, the election should not be held void merely because many 
 voters pretended that they were afraid to vote. 
 HunlYB. Sheldon {minority report) , 41st Cong 2 Bart., 714 
 
 Violence before the election, not affecting the result, immaterial. 
 Where there had been riots, violence, and threats before the election, but a truce was 
 declared on the day of election, and, though both parties came to the polls armed, 
 there was no violence at the polls and substantially the full vote of both parties 
 was cast, the committee refused to reject the poll. 
 
 Barnes vs. Adams, 41sl Cong 2 Bart.y^ 763 
 
 Small number of votes intimidated, these rejected, but poll retained. 
 Where a small and known number of voters were intimidated to vote for contestee in 
 a precinct where in any event he would have had a considerable majority, the 
 return should not be rejected. Were their number uncertain the return would be 
 excluded, and if a sufficient number were so intimidated as to overcome the major- 
 ity of contestee he would not be entitled to retain his seat. 
 
 Bowen vs. Buchanan, 61st Cong Rowell, 198 
 
 Must be shown to have affected the result. 
 Where there was considerable testimony to show violence, intimidation, and ballot- 
 box stuffing, but it was vague and general, and on the most favorable construction 
 of the testimony it was impossible to identify specifically enough votes affected to 
 overcome more than half the majority of contestee, the election was held not to be 
 invalidated. • 
 
 Jones vs. Mann, 40lh Cong ' 2 Bart. , 474 
 
 Where there had been disturbances and a collision between a colored procession and 
 certain white men the night before election, but there was no evidence to show 
 what persons, if any, wore deterred from voting and what efforts thev made to 
 vote, and a full vote appeared to have been cast, the committee refused to reject 
 the vote of the precinct. 
 
 Niblack vs. Walls, 4M Cong Smith, 105 
 
INTIMIDATION. 739 
 
 In considering tlie question of intimidation, the first inquiry is: How many voters 
 failed to vote? Altliougli tfiere may liave been efforts to intimidate, and altliougii 
 outrages may have been committed with this view, yet if these efforts were una- 
 vaihng and those who. were sought to be intimidated did in fact vote, there is an 
 end of controversy. 
 
 JVorris vs. Handley, 42d Cong "x. Smitli, 76 
 
 Where intimidation shown, burden on other party to show result not affected. 
 "Where intimidation is practiced over men sufficient in number to affect the result 
 the burden of proof is devolved upon him in whose interest the intimidation is 
 done to show that the intimidation did not affect the result. If this jiroof be not 
 made the intimidation is so interwoven with the vote that it is impossible to sepa- 
 rate with reasonable certainty the good from the bad vote, and the whole precinct 
 must be rejected." 
 
 Hwrd vs. Romeis {minority report), 49th Cong Mobley, 444 
 
 Violent ejection of election officer wonld vitiate poll. 
 Where a person claiming to be an election officer was forcibly ejected by the police, 
 the committee held that if he had been a duly appointed officer this fact would 
 have vitiated the election. But it appearing that under the law he was not entitled 
 to act at this poll, and that he had had notice of the law, they did not reject the 
 poll. 
 
 Myers vs. Moffett, 41st Cong 2 Bart., 569 
 
 Where snch as would intimidate men of ordinary firmness, whole poll rejected. 
 "The committee would not hesitate to decide that where there was such violence and 
 bloodshed as would intimidate men of ordinary firmness, and where a sufficient 
 number of voters to have changed the result were kept from the polls by reason 
 of this intimidation, it would be as fatal to the poll as if the election board had 
 been controlled by violence." 
 
 WaUaci vs. S'unpsorj., 41st Cong 2 Bart., 742 
 
 Whole vote thrown out. 
 Where there was rioting and violence at a poll, and voters wishing to vote for con- 
 testant were intimidated, and the United States supervisors were interfered with, 
 all with the aid and connivance of the election officers, the whole vote was rejected. 
 
 Bisbee vs. Finley, 47th Cong 2 Ells., 190 
 
 When the evidence shows conclusively that violence, threats, and intimidation have 
 been used to affect the result at a precinct the whole vote will be rejected. 
 Smalls vs. Elliott, 60th Cong Mobley, 680 
 
 Entire precinct not thrown out if legal votes can be proved. 
 "It is well settled that the vote of an entire precinct shall not be thrown out unless 
 it be impossible to make proof as to the number of legal votes cast in such precinct. ' ' 
 Where intimidation is alleged the number intimidated should be at least approxi- 
 mately shown, or some sufficient reason given for not making such proof. 
 
 Norris vs. Handley, 4Sd Cong Smith, 77 
 
 Whole county thrown out. 
 Where violence was prevalent throughout a county, the canvass and count of the 
 vote involved in inextricable contusion and fraud, ami the record illegally sup- 
 pressed, the returns from the county were thrown out. 
 Smalls vs.- Tillman, 47th Cong : 2 Ells., 435 
 
 Where registration of a county controlled by intimidation, whole county thrown out. 
 Where the evidence, as found by the committee, showed that in the county on which 
 the majority of contestant depended "there was no just and reasonable ground to 
 fear personal violence or injury in consequence of appearing to make and support 
 objections to registration, but that it was against the general and public opinion of 
 the county that persons who had not committed disloyal acts should be disfran- 
 chised merely on the score of opinions and sympathies, and that probably manv 
 persons did refrain from making objections rather than encounter this general 
 sentiment," and also, " that a large number must have been registered who were 
 
740 DIGEST OF CONTESTED ELECTION CASES. 
 
 disqualified by reason of having sympathized with t!-ose engaged in rebellion," 
 but the specific evidence did not show enough illegal votes est to overcome the 
 majority of contestant, the committee recommended that contestant, who had a 
 majority it this county were counted, be seated. One member of the committee 
 contended that there was a worse state of affairs than that described by the com- 
 mittee, and that whoever applied for registration, qualified or disqualified, was 
 registered, and that the large majority of the votes cast in the county were by dis- 
 qualified persons. The House agreed with this conclusion, and refused to seat 
 contestant. 
 Smtzler vs. Anderson, 40lh Cong 2 Bart. , 374-395 
 
 A whole election may be vitiated by intimidation. 
 Where, in precincts casting five-aixths of the vote of the district, the proof showed 
 that "in some to a much greater extent than others, but in all to a most n\\- 
 pable extent, violence, tumult, riot, and general lawlessness prevailed; that as a 
 consequence the reception of illegal votes and the rejection of legal votes, the acts 
 of disturbance and assault committed on peaceable citizens, and the intimidations 
 so predominated as to destroy all confidence in the election as being the expression 
 of the free voice of the people of that Congressional district," the committee recom- 
 mended that the election be set aside. The minority found that the violence was 
 leas than claimed, and held also that an election should not be set aside for violence 
 when it had been nevertheless possible to hold the election and declare the true 
 result of the votes as cast. The House laid the whole question on the table. 
 
 Whyle va. Hurrix, S5lh Cong - 1 Bart., L't>2 
 
 Where intimidation prevalent in more than half the district, whole election void. 
 
 "The minority can only elect where the majority, with full opportunity and facility to 
 vote as they choose, unrestrained and untrammeled by undue influence, refrained 
 through apathy or neglect from voting. But when undue influence, terrorism, 
 intimidation, or illegal influences have been brought to bear upon the great mass of 
 the voters, and they have been influenced, and have voted subject to these influ- 
 ences, although the full and accurate extent of such influence can not be arrived 
 at, the entiro election should be voided, although a minority may have voted free 
 from such inriuences, and for this reason: The entire people in such case evinced 
 a desire to vote. The right of the majority to rule is fundamental. In such a case 
 the will of the majority is defeated, not from apathy, but from undue influence. 
 The true remedy ia to void the election, remove the undue influences, and give the 
 majority that opportunity to rule which ia ita undoubted right." 
 
 Where there were Federal troopa preaent, and other influences which the committee 
 held to be intimidating, in four counties casting the majority of the votes in a dis- 
 trict, but not in the other four counties casting a minority of the votes, the com- 
 mittee held that the election was void. 
 
 Richardson vs. Rainey, 46ik Cong 1 Ells. , 272 
 
 Besnlt obtained by intimidation reversed, and contestant seated. 
 Where contestee received by the returns a majority of 4,291, but 5,700 persons were 
 prevented by violence aud intimidation from voting for contestant, the committee 
 stated this as one of' three grounds for the seating of contestant. Contestant was 
 seated. 
 
 Wallace vs. Simj^son, 41sl Cong 2 Bart., 744 
 
 Whether intimidated votes to be connted as if cast. 
 If intimidation were shown, and the number of persons intimidated satisfactorily 
 proved, "it would be our duty either to count the persons intimidated, as if they hai 
 voted according to their wishes, or throw out the entire precinct. It is not neces- 
 sary to determine here which would be the proper course." 
 
 Norris vs. Ilandleij, 4Jd Cong Smith, 78 
 
 Votes suppressed by intimidation counted as if cast. 
 Where voters had attempted to vote for the sitting member, and had been prevented 
 by violence and intimidation, the committee counted the votes of those in regard 
 to whom there was definite proof. It was contended that the only remedy was 
 the rejection of the poll, but the committee said: "This remedy in the present case 
 would only add to the injury, inasmuch as the sitting member "received a majority, 
 and this shows the necessity for some other remedy. This is to be found in the 
 
INTIMIDATION. 
 
 741 
 
 rule, which is well settled, that where a legal voter offers to vote for a particr.lar 
 candidate, and uses due diligence in endeavoring to do so, and is prevented by 
 fraud, violence, or intimidation from depositing his ballot, his vote should be 
 counted." 
 Nihlack vs. Walh, 43(1 Cong Smith, 104 
 
 Votes prevented from being cast by intimidation can not be counted. 
 "No principle in the law of elections can be regarded as better settled than that no 
 candidate can be held to have been elected to office by the votes which, whatever 
 the cause, were not in fact cast for him." If the charges of intimidation had been 
 sustained it ought to unseat contestee, but would not justify the seating of contestant. 
 ' Smalh vs. Tillman (minority report) , 47th Cong 2 Ells. , 489 
 
 Votes lost by intimidation not conuted, but whole poll rejected. 
 Where 175 voters, who testified that they would have voted for contestant, were pre- 
 vented from voting by intimidation, the committee refused to count their votes, 
 but rejected the entire vote of the poll where they attempted to vote. 
 
 Mudd vs. Complon, 51st Cong Howell, 156 
 
 Coercion of Employees and Depe.vdents. 
 
 Mere existence of rumors not sufficient. 
 Wliere it was asked that the returns of precincts where the employees of a certain 
 corporation voted be rejected, on account of the coercion alleged to be exercised by 
 the said corporation over the votes of its employees, but the proof only showed 
 that there was a prevalent impression that it was necessary to vote a certain ticket 
 in order to be employed by the company, and did not show definitely how many 
 votes were affected by the prevalent impression, nor implicate any of the mem- 
 bers of the corporation, except by showing that tickets were distributed at the polls 
 by one of them, the committee held that these circumstances were insufficient to 
 cause the rejection of the vote of these precincts. 
 
 Bowen vs. Buchanan, 51st Cong Howell, 197 
 
 Vagne ramor insufficient. 
 "A common report 'that men would lose their job' if they did not vote as theit 
 superiors directed," and the like vague rumors, "hardly constitute such an over- 
 throw of men's wills and determinations as can be taken notice of by the law." 
 
 Anderson vs. Reed, 47th Cong 2 Ells. , 286 
 
 Mere existence of a rnmor insufficient; its truth must be shown. 
 Where it was charged that the employees of a large corporation were illegally 
 influenced by their employers to vote for contestee under fear of discharge, but 
 the testimony consisted chiefly of evidence of the existence of rumors of the use 
 of such a system of coercion, the committee said: "It is necessary for us to ascer- 
 tain and determine from the evidence the trutli of these rumors, and not their bare 
 existence, as they may have been entirely unfounded and untrue. The charge that 
 such a system prevailed at the time of the election in controversy must be estab- 
 lished by competent proof, rendered by sworn witnesses, personally cognizant of 
 the facts upon which ihe charge is based. * * * It is our duty to reject all the 
 evidence that has been offered relative to the existence of the rumors to which we 
 have alluded, as it is clearly incompetent, and we must for the same reason discard 
 all evidence relating to voluntary statements made by persons not under oath or 
 witnesses, aa all such hearsay evidence is inadmissible." In this case the only evi- 
 dence remaining after the exclusions under the above rule went to show that three 
 persons who had been discharged in a period of eighteen years believed that they 
 were discharged for political reasons. There was other evidence that they were 
 discharged for drunkenness, and many employees testified that no such system of 
 coercion existed. The committee unanimously refused to sustain the charge. 
 Duffy vs. ifason, 4eih Cong 1 Ells., 364 
 
 Mere expression of a wish not intimidation. 
 It is not intimidation for an overseer merely to express a wish that his men should 
 vote as he did, unaccompanied by any threats, express or implied, of discharge. 
 "This claim would overthrow, if allowed, all labor to secure votes for one party 
 
742 DIGEST OF CONTESTED ELECTION CASES. 
 
 or another. If one may not ask a voter to vote his ticket, he may not make a 
 political speech, publish a political newspaper, or dare 1o express an opinion in the 
 presence of voters." 
 Page vs. Pircc [minority report), 49th Cong Mobley, 511 
 
 Must be shown to be STiccessfnl. 
 Where it is alleged that voters were intimidated by their employers, "the burden 
 is on the contestant to prove that the attempt was effectual. To justify the dis- 
 franchisement of an entire precinct on this ground there ought to be some evidence 
 to show its influence on the election." 
 
 Hurd vs. Someis, 49lh Cong Mobley, 425 
 
 Prisoners and paupers coerced; votes rejected. 
 Where prisoners were taken from jail and paupers from the poorhouse and coerced 
 into voting for contestee, their votes should be rejected. 
 
 ; vs. PeeUe, 48th Cong Mobley, 169 
 
 Discharge of employee not always nnjnstifiable. 
 Where there was conflicting evidence that a few mill hands may have voted for 
 contestee for fear of discharge, the committee, in disallowing the claim to reject 
 the returns, remarked also: "We can conceive how an ardent and active politician 
 among employees in a factory could become obnoxious and merit his discharge 
 apart from his support of any candidate." 
 
 Watson vs. Black, 53d Cong Report 1147, p. 6 
 
 Military Interference. 
 
 Election not vitiated. 
 Where United States troops, under the command of the brother of the sitting mem- 
 ber, violently interfered with the freedom of an election, the committee recom- 
 mended that the election be set aside, but the House overruled the committee. 
 Trigg vs. Preston, 3d Cong C. and H., 78 
 
 The commi^^tee recommended that the election be declared void because, in a part of 
 the district, the militia of the State "assumed to determine who should and who 
 should not vote, and for whom votes should be cast, and by threats, violence, and by 
 various modes of intimidation so far interfered with the election as, in the opinion 
 of the committee,'to render the election a nullity." 
 
 The minority found that no such condition of violence was proved, and tha:t no evi- 
 dence was presented except as to five of the fifteen counties of the district, and 
 against only eight precincts in those five counties. The House agreed with the 
 minority, and refused to vacate the seat. 
 Bruce WB. Loan, 38th Cong 1 Bart., 4S2-520 
 
 Not considered where result evidently not affected. 
 Where there were some irregularities, and military interference was alleged, but it 
 appeared that contestee received the votes of a large majority of all the voters in 
 the district, the committee did not consider the propriety of the military orders 
 complained of, or their effect, as in any case the contestee was elected. 
 
 McIIenry vs. Teaman, 38lh Cong 1 Bart., 551 
 
 Peaceful presence of individual soldiers not intimidation. 
 Where there were six to ten soldiers at a polling place, but so far as appeared they 
 were legal voters and had a right to be there, and they were not there as an orgari- 
 ized squad, but had stacked their guns at a distance, and the only persons who 
 were deterred from voting by their presence were certain deserters who were hid- 
 ing from arrest, the committee held that the charge of military interference was 
 not sustained. 
 Koontz vs. Coffroth, 39th Comj 2 Bart., 149 
 
INTIMIDATION. 743 
 
 Election not vitiated by mere presence of a few Boldiers. 
 Where it was shown that a small squad of United States soldiers was stationed in a 
 town, and on election day were near the polls, "but the evidence failed to show 
 any disorderly or threatening conduct on their part, and it was apparent that no 
 man of ordinary firmness was or could have been thereby intimidated from voting, ' ' 
 the coEfimittee held the charge of intimidation not to be sustained. 
 Bromberg vs. Haralson, 44th Cong Smith, 363 
 
 Where a large. part of the vote prevented from being cast, whole vote rejected. 
 In one county a large part of the colored vote failed to be cast. The town where the 
 election was held was occupied by an armed and organized force. Pickets were 
 stationed on all the roads leading to the town, and no one was allowed to enter 
 without a pass. Witnesses asserted that voters were allowed to come and go in 
 peace, and that the negroes were urged to vote; but they did not vote, and the 
 committee said, "It is clear that they abstained from doing so for reasons which 
 most m6n would consider good and sufficient." The report does not definitely 
 state whether the vote should be rejected or not, but Mr? McCrary, the author of 
 the report, states in his treatise on elections (§419) that "the committee were of 
 opinion that this was not a free and fair election," and bases the decision on the 
 ground of military interference. 
 
 1 vs. Clark, 4Sd Cong Smith, 97 
 
 Presence of troops intimidation. 
 The committee condemned the sending of Federal troops to South Carolina in 1876, 
 and found that they were sent there for the purpose of carrying the election by 
 intimidation. The question whether the presence of troops at or near the polls, 
 without the commission of any overt act by them, was in itself such intimidation 
 as to void the election was discussed by the committee, and the opinion seems to 
 have been that such presence does of itself constitute intimidation and voids the 
 election; but the committee recommended that the election be declared void 
 after discussing intimidation practiced in other ways as well. The minority held 
 that the use of the military as a police force to keep the peace was proper, and that 
 no intimidation having been practiced or threatened by the soldiers the election 
 was valid. Whatever intimidation was practiced was chiefly in the interest of con- 
 testant. Only some twenty votes were shown to have been attempted to be 
 intimidated in the interest of contestee, and in these cases it was unsuccessful. As 
 contestee's returned majority was over 1,500, this could not affect the result or the 
 validity of the election. 
 
 Richardson vs. Rainey, 45th Cong 1 Ells., 224-288 
 
 IBBEGULABITIES. 
 
 General Principles (see also Laws Mandatory and Directory). 
 
 Positive commands of the law mast be obeyed. 
 "The committee are sensible that trivial errors, committed by the officers conducting 
 elections, resulting perhaps from a misconstruction of a doubtful passage of a law, 
 ought not to deprive any class of citizens of representation. Still it must be mani- 
 fest that, to preserve the election franchise pure and unimpaired, the positive com- 
 mands and requirements of the law, in respect to the time, place, and manner of 
 holding elections, ought to be observed." Statutes directing the manner of holding 
 elections are as imperative as those directing the time and place; but the House 
 refused to concur in findings based on a strict construction of the above principles. 
 Taliaferro vs. Hungerford {second contest), ISth Cong C. and H., 251 
 
 Violation of statnte intended to protect purity of election, on a matter within con- 
 trol of voter, fatal. 
 "JV statute in relation to such irregularities as want of uniformity in size, color, 
 texture, or appearance of ticket, or something of that character, under the control 
 of those clothed with the power and duty of providing tickets, would and should 
 be construed as directory. But an irregularity in contravention of a statute 
 intended to protect the purity of the ballot box against frauds, vyhich irregularity 
 is within the control of the voter himself, must not be tolerated. A statute 
 applied to such irregularities is, by the courts, and of right should be, construed as 
 mandatory." 
 
 . vs. Felton, 60th Cong Mobley, 763 
 
744 DIGEST OF CONTESTED ELECTION CASES. 
 
 Not affecting the result, immaterial. 
 lOrrors relating to form rather than subBtance, and not affecting the result, held to be 
 immaterial. 
 PoHerfield\B. McCoy, 14th Cong 0. and H., 269 
 
 Substantial compliance with the law only required. 
 "Our election laws must necessarily be administered by men who are not familiar 
 with the construction of statutes; and all that we have a right to expect are good 
 faith in their acts and a substantial compliance with the requirements of the law." 
 
 Ingersoll vs. Naylor, S6th Cong 1 Bart., 35 
 
 Violation of directory statutes immaterial. 
 "Elections should not be set aside for want of mere form for innocent or uninten- 
 tional irregularities. On the other hand, all the mandatory provisions of the law 
 must be observed, or the election can not and should not be sustained." 
 
 Reid vs. Julian, 41st Cong 2 Bart., 830 
 
 "It is an established principle of law in cases of contested elections, not only in 
 Congress, but in the States of this Union, that wherever there has been a neglect 
 on the part of the returning officers or the canvassing officers to comply literally 
 with the merely directory provisions of the statute, such neglect shall not work 
 injury to anybody; that the votes shall be received and counted; that the parties 
 shall have the benefit of them for whomsoever they are cast. In every case of 
 contested elections the one great question to be determined, the one "point of 
 supreme importance to be ascertained by the House, sitting as judges, is. Who 
 received the majority of votes of the legal electors of the district; whom do the 
 people want to represent them; for whom have the majority of voters legally cast 
 their votes? The fact that some officers may have made an artificial or somewhat 
 informal return should not affect the substantial interests of the parties to that 
 election." 
 
 Hunt vs. Sheldon {minority report), 41st Cong 2 Bart. 538 
 
 Irregular election permissible in extraordinary cases. 
 "In extraordinary cases, and where it appears that in no other way can the actual 
 will of the voter be ascertained, a resort to methods not technically in accordance 
 with statutory direction may be justifiable, and upon proof that a full, fair, and 
 honest election has been held by those only who are qualified voters, under these 
 circumstances the returns from such an election, when dulv proved, may be con- 
 sidered and counted. None of those guards provided bv statute to secure honest 
 results should be neglected; but when statutory provisions designed to protect 
 qualified voters in the exercise of their legal rights are made use of with deliberate 
 purpose to suppress the will of the majority, such action will be reganled as fraudu- 
 lent." 
 
 McDuffie vs. Turpin, 5Ul Cong Rowell 290 
 
 May weaken prima facie force of returns. 
 "Mere irregularities in the conduct of the election, where it does not appear that the 
 legally expressed will of the voter has been suppressed or changed, are insufficient 
 to impeach officially declared votes. But a succession of unexplained irregulari- 
 ties and disregard of law on tlie part of intelligent officials removes from tlie bal- 
 lot box and the official returns that sacred character with which the law clothes 
 them, and makes less conclusive evidence sufficient to change the burden upon the 
 party who maintains the legality of the official count." 
 
 Langston vs. Venahlc, 51st Cong Rowell 437 
 
 Votes not to be lost by mistake of returning officers. 
 
 "The committee will forbear from exhibiting arguments to prove that votes fairlv 
 and honestly given, ought not to be lost or set aside for anv mistake of any' of the 
 returning officers. It is t'ouceived to be entirely unnecesJarv to prove that what 
 has been the uniform decision of the House of Representatives ever since the 
 formation of the Government, in such cases, has been correct.'-' 
 
 Colden vs. Sharpe, 17th Cong q and H 371 
 
' IRREGULARITIES. 745 
 
 Miscellaneous Informalities. 
 
 At first election in New Mexico. 
 Where, at the first election held in New Mexico, there were numerous irregularities 
 in the election, the committee held that allowances were to be made, and, as 
 there was no proof of fraud, disregarded the irregularities. 
 Lane vs. Gallegos, 33rd Cong-. 1 Bart., 164 
 
 Ketnrns rejected for techincal reasons counted. 
 Where returns were rejected by the county canvassers for techincal reasons, the 
 committee counted them. 
 Switzkr vs. I>yer, 41st Cong 2 Bart., 791 
 
 Betnrns not sealed, not signed, etc. 
 Where there were marked irregularities in the returns from a majority of the pre- 
 cincts in a county, such that the county clerk testified that no one could make 
 out a correct return from them, some of them not being sealed, some of them not 
 signed or certified, some of them not showing that the oath had been taken, and 
 most of them not showing in what State or county the election was held, or for 
 what office the votes cast for contestant and contestee were given, the committee 
 regarded the irregularities as very great", but as it was not necessary to the deci- 
 sion of the case did not rule on the question of their rejection. 
 
 Bell vs. Snyder, 43d Cong Smith, 258 
 
 Where no harm done, immaterial. 
 Where there were three ballot boxes at e^ch precinct, where complaint was made 
 that they were so placed that the United States supervisors could not watch them 
 all, where some ballots were handled by unauthorized persons, and some officers 
 of election were momentarily absent, but no harm was done, the committee (under 
 a directory statute) held all these irregularities immaterial. 
 
 Watson vs. Black, 63d Cong Eeport 1147, pp. 2-5 
 
 Held not to justify rejection of returns. 
 Precincts rejected by county canvassers because certain judges or inspectors of elec- 
 tion were not sworn, registration books were not kept open thirty days, some of 
 the officers absented themselves for a brief time, parties other than officers handled 
 the ballots, the officers of election began to count the votes before the polls closed, 
 or an officer of election was a candidate for another office, were counted by the 
 committee,- it appearing that no harm had been done. 
 
 Williams vs. Settle, 53d Cong Report, 337 
 
 Sundry informalities immaterial. 
 The following irregularities were held to be violations of directory provisions of the 
 law, and not to vitiate the election or returns: "A failure of one or more precinct 
 officers to take the oath of office prescribed by law; a failure of one or more of the 
 precinct officers to file the official oath in the office of the secretary of state; a failure 
 to appoint a clerk of election according to law; a failure of the precinct oflicers to 
 organize as a board; a failure to keep a poll list according to law; a failure to open 
 the polls at the hour fixed by law; a failure of the clerk to take the oath of office 
 prescribed by law; the fact that a ballot box contained more than one opening; the 
 circumstance that but one United States supervisor attended the election; an 
 adjournment of the polls during the day; a failure to keep a tally list; a failure to 
 count the ballots nnmediately after the close of the poll; a failure to administer the 
 oath prescribed by law to the electors; the fact that the poll lists, ballot boxes, and 
 statements of results were not delivered to the county canvassers by the chairmen 
 of the precinct boards; the refusal of the county canvassers to entertain and decide 
 upon protests presented by electors; the fact that the election was conducted by 
 two instead of three precinct officers; and the fact that the county canvassers opened 
 the ballot boxes when they canvassed the votes." 
 
 Richardson vs. Rainey, 45th Cong lEUs., 229 
 
 Exhibiting open tickets too near the polls. 
 Where the law had been violated by exhibiting open tickets within 100 feet of the 
 polls, the committee held that while the violators of the law might be punished 
 the vote of the poll ought not to be thrown out. 
 
 Wigginton vs. Pacheco, 45th Cong 1 Ells., 14 
 
<'46 DIGEST OF CONTESTED ELECTION CASES. 
 
 Ballots issued too near the polls. 
 Fifty-three ballots marked with a red pencil were rejected ty the committee on this 
 ground, and on the ground that they were issued to the voters within 100 feet of 
 the polling place, in violation of the mandatory statute of California, and that the 
 voters were bribed. 
 
 iStitllvan vs. Feltov, SOih Cong Alobley, 755 
 
 Indications op Fraud {see also Fraud, and Returns, Impeachment op). 
 
 Gross disregard of l&w rendering returns unreliable. 
 "While it is well established that mere neglect to perform directory requirements of 
 the law, or performance in a mistaken manner, where there is no bad faith and 
 no harm has accrued, will [not] justify the rejection of an entire poll, it is equally 
 well settled that where the proceedings are so tarnished by fraudulent, or negligent, 
 or improper conduct on the part of the officers, as that the result of the election is 
 rendered unreliable, the entire returns will be rejected, and the parties left to make 
 such proof as they may of votes legally cast for them." 
 
 Covode vs. Foster, 41st Cong 2 Bart., 602 
 
 Gross irregularities, affecting reliability of result. 
 The committee rejected the vote of a poll on the ground that the result was rendeied 
 unreliable by the following circumstances: During part of the day a hat was used 
 for a ballot box; the judge in charge of the hat was drunk and disorderly, and the 
 other oflHc.ers were more or less under the influence of liquor; outsiders, some of 
 them intoxicated, were admitted to the room, where they could have tampered 
 with the ballots; an unsworn outsider acted as clerk during the count; there was 
 an excess of 6 ballots in the box, and it appeared that throughout the day chal- 
 lenges by one party were systematically ignored and many votes were admitted 
 without due precautions to test their legality. The minority held that none of 
 these circumstances were sufficient of themselves to vitiate the poll, and they could 
 have no more effect when all combined. The House sustained the majority. 
 
 Covode vs. Foster, 41st Cong .2 Bart., 603-605 
 
 Gross disregard of law, indicating fraud. 
 Where a poll had been thrown out by the probate judge for fraud and irregularities, 
 the committee sustained its rejection on the ground of the following irregularities 
 and indications of fraud: The election was practically rira voce, the judge crj'ing 
 each vote as it was cast, in violation of lawj the election officers were not sworn; 
 the ballots, which should have been delivered by the voters in person, were 
 handled and written upon by an unsworn outsider; the legal poll books were not 
 used, but loose sheets of paper, and there were 192 ballots in the box not num- 
 bered and in excess of the names on the poll book. 
 
 Otero vs. Oallegos, ,14th Cong 1 Bart, 180-184 
 
 In REGisTR.'iTioN {sce also Eegistkatiox ) - 
 
 Gross irregularity in making up registration. 
 Where the registering officers of a precinct were not residents, as required by law, 
 and they permitted the registry to be made up chiefly by an unsworn cle'rk, in 
 entire disregard of the requirements of the law and with no precautious to confine 
 it to the legal voters, and as a result there was a large and unexplained increase in 
 the vote, the committee rejected the precinct. 
 
 Dodge vs. Brooks, 39th Cong 2 Bart. , 81-85 
 
 Use of an alphabetized copy of registry list, made by outside parties. 
 The committee held that the use for the purpose of facilitating voting of a more 
 perfectly alphabetized copy of the registry list than the regular certified copy, 
 made at the request of the judges by private persons, and not verified except by 
 counting the names, did not vitiate the election. 
 
 Ilogini vs. Pile, 40th Cong 2 Bart., 282 
 
IRREGULAEITIES. 747 
 
 ITse of wrong registry list and reception of illegal votes. 
 Where the assessor registered a number of persons on the "additional list" without 
 • the personal application required by law, and failed to furnish the election officers 
 the required certified copy of the list, and they therefore used a list which had 
 been posted up in a bar room for a month, and ,'otes were received from voters 
 whose names were not found on this list, without requiring of them the affidavits 
 prescribed by law, the committee rejected the poll. 
 
 Covode vs. Foster, 41st Cong 2 Bart., 605-608 
 
 Original registry list used, instead of certified copy. 
 An election should not be vitiated because of the failure of an assessor to perform a 
 part of his duty. Where the assessor performed all of his duty except furnishing 
 a certified copy of the list, and the election officers used the original list instead of 
 a copy, the election should stand. 
 
 Covode vs. Foster (minority report), 41st Cong 2 Bart., 616-618 
 
 No legal registration and gross irregularities. 
 Where there was no legal registration in a precinct, the election officers were not resi- 
 dents of the precinct, as required by law, and there were very many serious irregu- 
 larities, it was rejected by the committee, and only the votes proved aliunde counted. 
 Reid vs. Julian, 41st Cong 2 Bart, 830 
 
 In North Carolina, election invalid if registration at wrong time and place. 
 
 Under a mandatory law (in North Carolina) that "no registration shall be had, 
 
 except at the times and places hereinafter provided," the committee held that the 
 
 returns from precincts in which this law was not complied with should be rejected. 
 
 Pearson vs. Crawford, 56th Cong Report 199, p. 4 
 
 Harmless irregularities disregarded. 
 In one county the registration list was verified by only one commissioner, instead of 
 by the board, in another it was written instead of printed, and there were minor 
 irregularities in a third, but the committee held that none of these irregularities 
 were fatal under the Georgia law. 
 
 Feltrni vs. Maddox, 54th Cong 'J Report 1743 
 
 "Place of birth" not specifically recorded. 
 Under the statute of North Carolina requiring the registration to specify as near ' ' as 
 may be" the "place of birth" of each elector, the supreme court of the State had 
 decided that a registration specifying only the State of birth was in valid. The com- 
 mittee accepted the decision, but argued that the proof in this case was insufficient 
 to establish the irregularity. The minority applied the decision and held all votes 
 cast on such registrations illegal. 
 
 Williams vs. Settle, 53d Cong Report 337, parts 1 and 2 
 
 In Hours op Holding Election {see also Election, Tijie op Holding). 
 
 Foils opened too late, and by wrong officers, fatal. 
 Where the polls were not opened until three hours after the time required by law, 
 the committee held that the burden of proof was on the party who sought to 
 uphold the election to show that the result was not affected. This not having 
 been affirmatively shown, and it appearing in addition "that the requisite num- 
 ber of inspectors did not officiate; that those who did officiate were not sworn; 
 and that but one-half of the registered vote at that precinct was polled," the com- 
 mittee held that the vote of the poll must be rejected. The minority held that 
 the delay in opening the polls having been necessary in order to comply with the 
 provisions of the law in regard to appointing new judges in place of the absent 
 judges, and no impression having been given out that no election would be held, 
 it was the duty of the electors to remain until the polls were opened. The other 
 irregularities complained of were not mentioned in the notice of contest and could 
 not DC considered. If they were considered they would not overthrow the return, 
 as the officers were at least de facto officers, whose acts affecting the public, in the 
 absence of proof or suggestion of fraud, were valid. 
 
 Yeates vs. Martin, 46th Cong 1 Ells., 386, 397 
 
748 DIGEST OF CONTESTED iSLBCTIOiST CASES. 
 
 Totes rejected. 
 Votes received before the election board was organized or complete, as required by 
 law, were excluded from the count by the committee. 
 
 Greevy vs. Scull, 5Sd (Jong Stofer, 161 
 
 Adjonrnment before oompleting canvass not fatal. 
 Where the inspectors violated the law in adjourning before completing the canvass 
 of votes, such adjournment does not vitiate the poll unless it is shown to have 
 afforded facilities for fraud or that during it the box waa concealed and tampered 
 with. ' 
 
 Bisbee vs. Mnley {minoriiy report), 47th Cong 2 Ells., 2l5 
 
 Brief adjournmeat at noon does not justify connting vote whicli miglit have been cast 
 
 during time of adjournment. 
 
 Where the polls were closed for a short time at noon, and a person passing the polls 
 
 at the time, with his family and goods in a wagon, in the act of moving out of the 
 
 •county, failed to vote on account of the closing of the polls, Jield, that "he was not 
 
 entitled to vote, but if he had been, the circumstances attending his case were not 
 
 such as to justify us in counting his vote." 
 
 Campbell vs. Morey, 48th Cong Mobley, 227 
 
 Slight interruption immaterial. 
 The law of South Carolina providing that tl^e polls shall be kept open without inter- 
 ruption being directory merely, an interruption of a few minutes which did not 
 affect the result should not void the election. 
 
 Smalls YB. Elliott (minority report) , 60th Cong Mobley, 717 
 
 Adjournment for dinner, discrepancy of votes, etc., not fatal. 
 Where there was a discrepancy of 4 votes between the ballots and the poll book, the 
 inspectors were not properly sworn, the poll waa adjourned for dinner and the 
 ballot box concealed from public view, and the election was opened and closed 
 later than the legal hour, but there was no proof of actual fraud, the committee 
 allowed the poll to stand, after purging it of illegal votes. But a part of those who 
 signed the majority report were in favor of rejecting it entirely. 
 
 Mnley YS. Walls, 44ih Cong .-_ Smith, 378, 391 
 
 Adjournment for dinner, box not sealed, etc., not fatal. 
 Where one of the inspectors was not sworn, the box was not sealed during the ad- 
 journment for dinner, and the key was in the possession of an outsider, the count 
 of the votes was irregular, and the ballot box waa returned unsealed by the same 
 outsider, all in violation of law, the committee, while condemning the irregu- 
 larities, did not reject the poll. 
 
 Finley vs. Walls, 44th Cong Smith, 381 
 
 Adjournment for dinner, with no other suspicious circumstances. 
 The conduct of judges of election in adjourning for dinner and leaving the ballot box 
 unsealed and unguarded is highly reprehensible. " It is of the highest importance 
 that the ballot box should be guarded and protected in the most careful manner; 
 that all the provisions of law made for the security of the ballot should be strictly 
 obeyed. There should not be the least opportunity for tampering with the ballots. 
 It is certainly a serious question whether such an irregularity as this ought not to 
 vitiate the election." But the mere fact of adjournment for dinner would not be 
 sufficient to vitiate an election; the contestant in this case had not charged fraud, 
 there was no evidence that the box had been tampered with, and some negative 
 evidence that it was not, and the committee did not reject the returns, but they 
 held that they "would, were there any facts tending to show that the ballot box 
 had been tampered with, have decided to reject the returns." 
 
 Cox vs. Strait, 44th Cong Smith, 434 
 
 Adjournment for dinner not fatal. 
 
 Where the judges in twelve precincts adjourned for dinner, the committee unani- 
 mously held that this alone would not vitiate the election. " The committee can 
 not sanction this practice of temporary adjournment; but inasmuch as it has ob- 
 
IRREGULARITIES. 749 
 
 tained very extensively in the State of Ohio, and inasmuch as it does not appear 
 in these cases that any person was deprived of his vote in consequence of the 
 adjournment, they do not feel warranted in depriving so large a number of electors 
 of their votes on account of this unintentional and, in these cases, harmless errors 
 of their officers." 
 
 Delano vs. Morgan, 40th Cong 2 Bart., 172 
 
 Box only open part of day and same votes probably cast in another box, fatal. 
 Where there were two boxes opened in a precinct, but one of the boxes was open only 
 part of the day, and it was at least doubtful whether it was legally opened at all, 
 and it was probable that after it was closed many of the voters who had voted in 
 it voted in the other box, the committee sustained the action of the county can- 
 vassers in rejecting this box. 
 
 Norris vs. Handley, 4Sd Cong Smith, 72 
 
 Poll open during only part of the day not fatal. 
 Where, as the result of a prearranged plan, the election was held by officers other 
 than those regularly appointed, but the regularly appointed officers opened another 
 poll an hour after the legal time and held an election until 11 o'clock, when they 
 were driven away by violence, the majority of the committee refused to count the 
 votes received by them during the time that their poll was open. The minority 
 counted the votes. On the whole case the House sustained the minority. 
 
 Simtzler vs. Dyer, 41st Cong 2 Bart., 790, 807 
 
 Poll not kept open fall legal time, bnt no votes lost. 
 "The objection of sitting member that 'the soldiers' election law requires the polls 
 to remain open at least three hours' is regarded by the committee as frivolous, 
 when he makes no effort to prove that any voter was prevented from casting his 
 vote, but only objects to votes that were fcast, and where no attempt is made to 
 prove fraud." 
 
 Koontz vs. Coffroth, 39th Cong 2 Bart., 141 
 
 Closing the polls and reopening them after sunset fatal. 
 Where a poll was not closed until some time after sunset, the committee expressly 
 refrained from deciding whether the votes received after sunset should be rejected 
 or not, but where polls were closed at sunset and afterwards opened again, they 
 rejected all the votes received after the first closing. 
 
 Hogan vs. Pile, 40th Cong 2 Bart., 288 
 
 In Form, Custody, or Number of Ballot Boxes. 
 
 A gourd for a ballot box. 
 Where the ballot box was required to be sealed, and a large gourd was used and tied 
 in a handkerchief, and the box was not in legal custody over night, but there was 
 no' evidence of fraud, the committee held that the irregularities were insufiicient to 
 vitiate the return. 
 
 Arnold vs. Lea, Slst Cong t 0. and H., 605 
 
 A cigar box for a ballot box. 
 Ballots rejected because returned in a cigar box, because of the failure of the proper 
 officers to provide the usual ballot box, should be counted. 
 SmUhva. Shelley, 47th Cong 2 Ells., 24 
 
 Box kept by wrong officers. 
 Where the election was required to be held for two days and the officers of election 
 were to "take charge of the box" over night, and in several precincts the box 
 was kept by the sheriff or other persons,but securely locked up, and there appeared 
 to be no fraud, the committee held that the spirit of the law had been sufficiently 
 complied with to count the votes. 
 
 Arnold vs. Lea, Slst Cong C. and H. , 601 
 
750 DIGEST OP CONTESTED ELECTION CASES. 
 
 / 
 
 Box exposed to danger of being tampered with before official connt. 
 
 Where, after an unofficial count on the night of the election, the ballot box was left 
 over night in a saloon, and was counted the next morning and official returns 
 made, the i-ommittee rejected the poll in spite of the evidence that the first unoffi- 
 cial count agreed with the official count made the next morning. The minority 
 held that the proof of this unofficial count, publicly made and announced at police 
 headquarters, was sufficient to overcome the presumption that the box had been 
 tampered with. 
 Le Moyne vs. Farwell, 44lh Cong Smith, 412j 423 
 
 Box temporarily in possession of one judge, but no frand. 
 Where the ballot box had been left imperfectly sealed for a few moments in the cus- 
 tody of one of the judges, but there was no evidence or suspicion of fraud, the 
 committee refused to reject the vote. 
 Smith vs. Jackson, Slst Cong Rowell, 23 
 
 One box instead of two, and a judge not sworn. 
 Where ballots for a city election and the Congressional election were deposited in the 
 same box, so that a voter could easily have cast two ballots of the same sort, and 
 where, in addition, one of the judges who aided in the counting was not sworn, 
 and there were other irregularities, the committee rejected the poll. 
 
 Howard vs. Cooper, S6th Cong 1 Bart., 281 
 
 One ballot box instead of two. 
 The law of North Carolina requiring separate ballot boxes for ballots for Congress 
 and for Presidential electors was held to be directory merely, and an election was 
 not held void where only one box was provided for both sorts of ballots. 
 
 Boyden vs. Shober, 41st Cong , 2 Bart., 906 
 
 Use of two boxes instead of one. 
 Where there were two ballot boxes at different windows in the same room, both 
 equally in or out of the charge of the officers of the election, and it appeared that 
 the vote was so large that the use of two ballot boxes was a practical necessity and 
 was customary, and as a matter of convenience white men generally, but notexclu- - 
 sively, voted at one box and colored at the other, and the boxes were changed and 
 put in each other's places at least once during the election, and the State board had 
 rejected the " white man's box" and counted the other, the committee held that 
 the two boxes must stand or fall together, and as either decision would be equally 
 decisive of the case in favor of contestant, did not decide whether the whole vote 
 should be counted or rejected. 
 
 Giddinga vs. Clark, 4^d Cong Smith, 96 
 
 Four ballot boxes in a single precinct. 
 Where four ballot boxes were opened in different parts of the court-house, presided 
 over by different sets of officers, and so situated that it was impossible for the 
 United States supervisors to supervise them all, the committee held that it was not 
 only subversive of the Federal supervision law, but also contrary to the Georgia 
 law which jjrovided that there should be not more than one polling place in each 
 militia district. The committee, however, did not reject any votes, as it was not 
 necessary to the decision of the present case. The minority held that the use of 
 the four boxes being customary and practically necessary, on account of the large 
 number of votes, was proper. 
 
 Sloan vs. Rawls, 43d Cong Smith, 154 168 
 
 One box instead of two. 
 The officers of election were required "to open a poll" to take the sense of the voters 
 on constitutional amendments, and each voter, etc., was required to "deposit a 
 ticket or ballot." In part of one county separate boxes were not used, and votes 
 on the amendments were printed on the same ticket with votes for Congress; in a 
 few cases votes on the amendments were on separate ballots folded inside the Con- 
 gressional ballot. All these votes were rejected by the county canvassers. The 
 majority held that the law was directory merely, and that "to open a poll" did 
 not necessarily mean to have a separate ballot box, nor to "deposit a ticket or 
 
IKREGULARITI-ES. 751 
 
 ballot " mean that it must be separate from the general ticket. The minority held 
 that the ballots were properly rejected, but that the House, under its broader 
 power, might count them. On the whole case, whicli involved other issues, the 
 House agreed with the minority. 
 
 Plall vs. Goode, Uth Cong Smith, 652, 677 
 
 Two ballot boxes instead of one. 
 Where there is no statute prohibiting the use of two ballot boxes, one for white and 
 the other for colored voters, the only question to be considered is whether their 
 use interfered with the purity, freedom, or convenience of the election. 
 
 Siovell vs. Cabell, 47th Cong 2 Ells., 671 
 
 Three ballot boxes not fatal. 
 Where there were»three ballot boxes at each precinct in a city, but the number was 
 
 necessary and no harm was done, the committee lield (under a statute in terms 
 
 directory and not mandatory) that the election was not void. 
 
 Watson vs. Black, 53d Cong Report 1147, p. 2 
 
 Watson vs. Black, 54th Cong Report 2892, p. 4 
 
 Failure to open before beginning election fatal. 
 Where the ballot boxes were not opened, as required by law, before beginning the 
 election, and at the close of the polls the ballots of the preceding election were . 
 found to be still in the box, the committee rejected the precinct. "The proAi.sii)n 
 of law requiring ballots to be deposited in empty boxes is, in its nature, just as man- 
 datory as a provision requiring that the ballots shall be on white paper and with- 
 out device. * * * It is axiomatic that laws designed to secure the accuracy 
 of the count are mandatory." 
 
 Pearson vs. Crawford, 56th Cong Report 199, p. 5 
 
 In Place of Election. (Sen also Polling Place, and Unorganized Counties). 
 
 Election not at legal place. 
 Where an election was held at the place named in the proclamation, but this was 
 2 miles from the place where the election was customarily held, and where the 
 committee held it must be legally held, the poll was rejected. 
 
 Howard vs. Cooper, 36th Cong 1 Bart. , 281 
 
 One poll where two required. 
 Where two companies of soldiers voted at one poll, the military election law requir- 
 ing a poll for each company, a portion of the committee held that the law was man- 
 datory and the votes should be rejected. Others of the committee held that as the 
 election was a fair one, the votes should be counted. 
 Kooniz vs. Coffroih, 39th Cong 2 Bart., 143 
 
 Totes of township and incorporated city cast at same poll. 
 Where, under a special charter, all the votes in a township and an incorporated city 
 lying within it were cast at a single poll in the city, though the general law required 
 separate polls to be opened for the township and for each ward in the cityj the 
 committee were inclined to think that the general law applied, but as eighteen 
 different elections had been held in the same way, under the same law, they did 
 "not feel justified in setting aside an election held in pursuance of a construction 
 so long sanctioned by the authorities of the State." The minority held that as 
 no election had been held according to law, the returns should be rejected. 
 
 Delano vs. Morgan, 40th Cong 2 Bart., 173, 200 
 
 Votes from unorganized territory returned to wrong county. 
 Where the unorganized territory west of organized counties was attached to them for 
 election and other purposes, and the commissioners of a county established a town- 
 ship in the unorganized territory, and votes were cast and duly returned, but the 
 county clerk refused to receive them, and by surveys made since the election it 
 appeared that the township was north of a line drawn due west from the north line of 
 the organized county, the committee held that the votes were cast outside of the 
 territory attached to the C9VUlty and were nullities. 
 
752 DIGEST OF CONTESTED ELECTION CASES. 
 
 The minority held that as the township was within the territory supposed at the time 
 of the election, by the then admitted lines, to belong to the county, and as the 
 voters were in any case residents of the Congressional district, the votes should 
 be counted. The House, on the whole case, did not adopt the conclusions of either 
 majority or minority. 
 
 Miller ys. Thompson, Slst Cong - 1 Bart., 121,129 
 
 Precincts not in legal existence. 
 The votes of precincts which had no legal existence at the time of the election, and were 
 not legally established for nearly a year afterwards, were unanimously rejected by 
 the committee. 
 
 Chaves vs. Clever, 40th Cong 2 Bart., 468 
 
 Election districts establislied at wrong meeting of board. 
 The county commissioners were required to meet in stated meetings in January and 
 September of each year and in extrai session at such times as a majority of theboard 
 deemed necessary. At their stated meetings they were empowered under certain 
 circumstances to establish election districts. The committee held that election 
 districts established at an extra session were illegally established, and rejected all 
 votes cast at them. 
 
 Cox vs. Strait, 44th Cong - Smith, 431 
 
 Precincts established by less than a quorum of the court. 
 Where the contestant objected to the votes of certain precincts on the ground that at 
 the meeting of the court at which they were established a quorum was not present, 
 but it appeared that the order had been generally acted on as a valid order, and the 
 elections regularly held and returned, the committee said, "These precincts must 
 be regarded as established under color of law, and as having a de/acto existence," 
 and refused to reject the votes on this ground among otheft. 
 
 Cause vs. Hodges, 43d Cong , Sinith, 300 
 
 Precinct not established by law. 
 It was apparently assumed in both majority and minority reports, and explicitly 
 asserted in debate, that votes cast at a precinct not established by law must be 
 rejected. 
 
 Sloan vs. Rawls, 4Sd Cong Smith, 148, 171 
 
 Precincts established at wrong meeting of board. 
 The statute of Montana prescribing that precincts and polling places shall be estab- 
 lished by the county eommissioners at the regular meeting mimediately preceding 
 the general election is directory merely. 
 
 Botkin vs. Mofjinnis, 4Sih Cong Mobley, 378 
 
 Annexation of part of a precinct ^ot in strict form of law. 
 Where it was sought to throw out the votes of all residents of a certain portion of a 
 precinct on the ground that the legal proceedings annexing this territory to the 
 precinct were not in due form, but it appeared that the order had been universally 
 accepted and acted on, and the residents of this territory had voted in the precinct 
 foj years, the committee unanimously declined to examine into the legality of the 
 court proceedings, and counted the votes. "Voters are not to be disfranchised 
 under such circumstances any more than the acts of de facto officers are to be held 
 invalid in collateral proceedings." 
 Atkinson vs. Pendleton, Slst Cong Eowell, 57 
 
 Votes cast in boroughs by residents of townships excluded. 
 Under the provision of the constitution of Pennsylvania that a voter "shall have 
 resided in the election district where he shall offer to vote at least two months 
 immediately preceding ±he election," the committee held that votes cast by resi- 
 dents of townships at polling jplaces located in boroughs distinct fi-om the town- 
 ships must be excluded, even in cases in which the borough poll was the usual 
 voting place and no other was provided. 
 
 Greevy vs. Scull, 52d Cong Stofer 158 
 
IRREGULARITIES. 753 
 
 Slight change in boundaries held not to make votes illegal. 
 Where the boundaries of certain districts had been slightly changed but the polling 
 places were the same and the voters had not changed their residence, and the old 
 registry list was used at the polls, the comnaittee held that the votes were regularly 
 cast and the registration was not invalidated. 
 
 Greevy vs. Scull, 52d Cong ,. Stofer, 159 
 
 In Ofpiceijs op Election. (&e aZso Officers of Election.) 
 
 Same magistrate acting in two capacities. 
 Where the same magistrate acted as judge of the election and as assistant to the 
 clerk in making up his return, there being nothing in the law prohibiting it, it was 
 held not to affect the validity of the returns. 
 
 Boston vs. Scott, 14th Cong C. and H., 279 
 
 Votes written down by sherifT instead of by clerk. 
 Where the sheriff conducting the election was required to appoint one or more 
 " writers" to take the polls, and in one county, during a part of the time while 
 the writer was absent, the sheriff himself wrote down the names, the committee 
 rejected all the votes so written down in the absence of the writer. 
 
 Draper \*s. Johnston, 22d Cong .' C. and H., 710, 712 
 
 Only one clerk to take Congressional poll. 
 Where the officer conducting the election was authorized to "appoint so many 
 writers as he shall think fit," to take the poll, and three " writer^" or clerks were 
 appointed, but only one of them took the poll for Congress, the committee held 
 that even if this were held to be the appointment of but one writer the power of 
 the officers to appoint so many as they shall think fit "is an authority to appoint 
 only one if, in their judgment, one is sufficient." 
 
 Sott? vs. Jones, 38th Cong 1 Bart, 76 
 
 Snbstitntion of clerk for inspector and unsworn outsider for clerk. 
 
 Where, during part of the day, the judge pe^rmed the duties of an inspector, an 
 inspector performed the duties of a clerk, a clerk performed the duties of an 
 inspector, and an unsworn outsider 'performed the duties of a clerk, and the 
 majority of the committee found that these irregularities had for their purpose and 
 result the fraudulent reception of a large number of illegal votes, they recommended 
 that the election be set aside, though the contestant had not proved enough illegal 
 votes cast for contestee to overcome the returned majority. 
 
 The minority held that the irregularities were immaterial, especially in the absence 
 of any allegation of fraud. The House refused to vacate the seat, thus substan- 
 tially sustaining the minority. 
 
 Wright \B. Fuller, 82d Cong ^. 1 Bart., 152-164 
 
 Temporary absence of part of the election officers. 
 Where the judges and clerks took turns in going out to meals, so that each of them 
 was in turn absent for about half an hour, but no harm resulted, the committee 
 refused to reject the returns. 
 
 Delano vs. Morgan, 40th Cong 2 Bart., 173 
 
 Boards not legally organized, and only partial election held. 
 Where the county election was organized by the coroner, acting without color of 
 legal appointment, and imperfect notice was given, so that the election was held in 
 only seven of the twenty-five counties of the district, and very many of the voters 
 did not vote, the whole vote was thrown out. • 
 
 Sheaf e ya. Tillman, 41st Cmg 2 Bart., 910-912 
 
 Tally kept by unsworn outsiders. 
 Where the law required the officers of election to count the votes immediately at the 
 close of the polls, publicly and without moving the ballot box, and they carried 
 it a distance of 16 miles to the county seat before counting under a misappre- 
 hension of the law, taking care to keep the box in such a way as to rebut every 
 
 H. Doc. 510 48 
 
754 DIGEST OF CONTESTED ELECTION CASES. 
 
 presumption of fraud, but bad their tally sheet kept by unsworn outsider?, the vote 
 was thrown out for these two reasons, but chiefly because of the unsworn tally 
 keepers. The minority held that the vote should not be thrown out. 
 Spencer vs. Morey, 44lh Cong Smith; 442 
 
 Ontsider assisted. in the count. 
 Where it was alleged that during the count some of the ballots were taken from the 
 box by an outsider, but it was doubtful whether this occurred at the election in 
 contest or another, and the person accused was shown to beof good character, and 
 the circumstances were such that he could scarcely have changed the tickets, the 
 committee held that "it was a wrongful act, or irregularity, .if it occurred, but 
 under the circumstances we can not recommend the exclusion of this return." 
 
 Hurd-vs. Romeis, 49th Cong Mobley, 426 
 
 In Poll Book of Viva Voce Election. 
 
 Names not in full on poll book. 
 Under a statute requiring the names of the voters to be entered on the poll book, the 
 committee held that when the Christian names were not entered in full, but by 
 the initials only, the election should be held void. But the Hou.se refused to 
 concur. ■ , 
 
 Taliaferro vs. Hungerford (3d contest) , ISlh Cong .C. and H., 2,50 
 
 Karnes not entered in separate columns on poll book. 
 Where the law required the clerks of the poll to enter the names of the voters in 
 distinct columns under the names of the candidates, and they were instead entered 
 in a single column, with figures or marks under the candidates' names to indicate 
 the votes, the committee held that the election was void. But the House refused 
 to concur. 
 
 Taliaferro vs. Hungerford [Sd contest), 13th Cong C. and H., 2.=)0 
 
 Where the names of the voters were not written under the names of the candidates 
 in separate columns, as required by law, but in the same column, and the votes 
 carried forward and marked under the names of the candidater^. it was held not to 
 vitiate the poll. 
 
 Porterfield vs. McCoy, 14th Cong C. and H. , 268 
 
 Votes set down in figures instead of in writing. 
 Where the law required the number of votes to be set doAvn "in writing" and it was 
 stated in figures, the committee held that it was not a literal compliance with the 
 law, but as the variance related only to form, and no harm appeared to have been 
 done, counted the votes. 
 
 Easton vs. Scott, 14th Cong _ C. and H. , 281 
 
 In Count of Votes. 
 
 Votes counted by only part of election board, but correctly counted. 
 Where, after part of the vote of a precinct had been counted, the managers refused 
 to count it further, and the count was completed by one manager and a clerk, and 
 the fairness of the election, and count, aa well as' the result, was proved by the 
 supervisor's return and the testimony of a supervisor and of one manager, the "com- 
 mittee counted the vote. 
 
 Sloan vs. Bawls, 43d Cong _ Smith, 150 
 
 Count not public, and discrepancy in result. 
 Where a county board refused to permit anyone to be present at the canvass of the 
 vote, and the result as certiiied by them showed nine less votes for contestant than 
 the, aggregate of the precinct returns, the committee declared the practice repre- 
 hensible and dangerous, and unanimously counted the vote according to the pre- 
 cinct returns. 
 
 Burns vs. Young, 4Jd (_ hug _ Smith 181 
 
IRREaULAKITIES. 755 
 
 Counting of votes before close of polls condemned, bat not held fatal. 
 It is a gross irregularity for judges of election to begin to count the votes before the 
 closing of the polls, the time prescribed by law, and thereby to deprive subsequent 
 voters of the secrecy of the ballot. (But the committee did not reject a return on 
 this account.) 
 
 Frederick vs. Wilson, 48th Cong ! Mobley, 402 
 
 Ballots counted by fives instead of singly. 
 
 Where the law required the votes to be counted one at a time from the box, and they 
 
 were instead spread upon a table and assorted and counted by fives, held that this 
 
 was a mere irregularity, and should not void the election in the absence of any 
 
 evidence of fraud or corruption. 
 
 Surd vs. Romeis, 49th Cong Mobley, 424 
 
 Ballots bandied by unauthorized persons. 
 "In all elections the most important thing to be shown is that the votes counted 
 were those cast. Xherfe can be no assurance of this fact, except that the ballots 
 have been preserved in the exclusive custody of the ofHcers charged with the duty 
 of keeping them. Any interference with them by an unauthorized person, any 
 handling or taking them into possession by others than the proper ofHcers, whereby 
 an opportunity to tamper with them and alter them has been given, will be fatal to 
 the count, unless the clearest and most satisfactory explanation has been made of 
 the conduct of such persons. The burden is shifted to the contestee to show that 
 what was done did not interfere with the ascertainment of the true result." 
 liurd vs. Romeis ( minority report ) , 49th Cong Mobley, 448 
 
 Ballots not counted one at a time suspicious, but standing alone not fatal. 
 The statute requiring ballots to be counted from the box one at time is directory 
 merely and its disregard does not of itself vitiate the election; but it raises a sus- 
 picion, and where other circumstances show that the ballots were tampered with 
 the poll should be rejected. 
 
 Hard vs. Romeis {Mr. Green) , 49th Cong Mobley, 427 
 
 Votes not counted immediately. 
 ' ' The correctness of the count is an essential of the election. The lawp made to secure 
 this result are mandatory." Where the managers of the election did not "imme- 
 diately proceed publicly" to count the vote, and the result of this count is shown 
 to be false, the return should be rejected. 
 
 Smalls vs. Elliott (minority report), 50th Cong Mobley, 731 
 
 In Form oy Returns {see also Returns). 
 
 Substantial compliance only required. 
 A return-rejected by the State (-anvassing committee because not certified in form of 
 law, but found by the committee to be in substantial compliance with the law, was 
 counted by the committee. 
 
 Mallary vs. Merrill, 16th Cong C. and H.,330 
 
 Names in return idem sonaus. 
 Where, by errors in making out county transcripts, votes returned by the precinct 
 officers as having been cast for Cadwallader D. Golden were returned to the gov- 
 ernor as having been cast for Cadwallader D. Colder and Cadwallader Colden, the 
 committee, on proof of the facts, counte'd them as cast and originally returned. 
 Colden ye. Sharpe, 17th Cong C. and H.,369 
 
 Informality in a county abstract not fatal. 
 ' ' Your committee would not reject for mere informality a county abstract which truly 
 presents the aggregates of votes actually cast in the voting precincts." 
 
 Clark vs. Hall, 34lh Cong 1 Bart. , 215 
 
756 DIGEST OF CONTESTED ELECTION CASES. 
 
 Beturns not on separate sheets. 
 Where the law required that abstracts of votes for different offices should be returned 
 on separate sheets and they were returned on the same sheet, held, that the law 
 was directory and its violation did not vitiate the election. 
 
 Fenn vs. Bennett, 4Mh Cong Smith, 593 
 
 Betnrn certified, but not attested. 
 The law of Virginia required the county returns to be certified by the county com- 
 missioners, attested by the clerk, and deposited in the clerk's office. A certified 
 copy was to be sent to the seat of government. The copy sent was certified regu- 
 larly by the commissioners and certified by the clerk, but not attested by him. 
 It was rejected by the State canvassers on this account. The majority held that 
 the rejection was arbitrary and illegal; that the certification of the clerk without 
 the addition of his formal attestation was a substantial compliance with the law, 
 and that in any case it was the duty of the secretary of the Commonwealth, under 
 the law, to send a special messenger for a proper return if the one forwarded was 
 illegal. The minority held that the return was properly rejected by the canvass- 
 ing board, but that the House, under its power to go bfehirid the return.?, could 
 count the vote, except from two precincts, which must be rejected for other 
 reasons. On the whole case, which involved other issues, the House sustained 
 the minority. 
 
 Plait vs. Ooode, 44th Cong Smith, 651, 678 
 
 Returns signed by mark. 
 Returns rejected because signed by the mark (x) of the inspectors should have been 
 received and counted. 
 SmithYS. Shelley, 47th Cong 2 Ells., 20 
 
 Vote for Congress omitted from retnrn, bat sbown by tally sheet. 
 Where the certificate of the vote of a precinct made by the precinct officers omitted 
 the vote for Representative in Congress, but the tally sheet showed the vote, and 
 a recount of the ballots by the county court showed the same result as the tally 
 sheet, the committee refused to reject the vote. 
 
 Smith vs. Jackson, Slst Cong Howell, 22 
 
 Irregularity in one portion of a return does not affect the rest. 
 Where a precinct return was irregular as to votes cast for Presidential electors and 
 had been rejected entire by the county commissioners, the committee counted the 
 vote for Representative in Congress, which was regularly returned. 
 
 Langston vs. Venable, Slst Cong ' Rowell, 440 
 
 Partly signed, counted. 
 Where certain returns had been rejected, as not signed, but some of them were 
 signed in part and were enough to show that the election was legally held and 
 for whom the votes were cast, the committee counted these returns. 
 
 Watson vs. Black, 53d Cong Report 1147, p. 10 
 
 Not sealed, but no barm done, counted. 
 Where the returns and poll books were not properly sealed, owing to the mistake of 
 the election officers, but there was no indication of fraud or unfairness, the com- 
 mittee counted the returns, though rejected by the county commissioners. 
 
 Goodevs. Epes, BSd Cong Report 1952, pp. 5,7 ■ 
 
 Informal certificate, immaterial. 
 Where the certificate of the judges of election to a precinct return was informal but 
 not ambiguous, the committee counted it, though rejected by the county commis- 
 sioners. 
 
 Goode\s. Epes,S3d Cong Report 1952, p. 7 
 
 Tally sheets counted, where no allegation that they were incorrect. 
 The officers of election at a number of precincts made no formal returns, not having 
 been supplied with blanks for them, but transmitted the tally sheets, which the 
 county canvassers had counted and contestant sought to have rejected. The tally 
 
1RKEGULAEITIE8. 757 
 
 sheets and the oral testimony of the officers of election stating the votes were in 
 evidence. The committee held that if it had been alleged that the tally sheet of 
 any precinct did not correctly represent the vote it would have been nnfessary to 
 recount the ballots, but as this was not alleged they allowed the count to stand. 
 Kearhy vs. Abbott, 54th Cong Report 1596 
 
 Signatures of judges written by clerk. 
 The committee counted three precincts whicli had been rejected by the county can- 
 vassers — the first on the ground that one of the judges was not sworn; the second 
 on the ground that the signatures of the judges were written, at their direction, 
 by the clerk, and the third- on the ground that there was an excess of two ballots 
 in the box. 
 
 Brown vs. Swanson, 55th Cong Report 1070, p. 2 
 
 In Transmission of Returns {see also Returns). 
 
 Lists of voters not retnrned, decision of State canvassers accepted. 
 Where it was alleged that lists of voters were not returned to the secretary of state 
 from certain precincts, as the law required, the committee were divided as to what 
 the effect of this violation of the law would be if presented as an original question, 
 but inasmuch as the State canvassers had passed upon the question, they did not 
 feel authorized to overturn their decision. 
 MillikeriYa. Fuller, S41h Cong 1 Bart., 177 
 
 Foil books not retnrned in time, immaterial 
 Where votes had been legally cast, but were rejected by the Territorial canvassers 
 because the poll books were not returned within three days, as required by law, 
 the committee unanimously counted the votes. 
 
 Chapman vs. Ferguson, 35th Cong 1 Bart., 268 
 
 Aggregates retnrned instead of "abstracts." 
 Where the law required "abstracts" of the vote of each county to be returned to the 
 Territorial canvassers, and in ni^ie counties statements of the aggregates of the votes 
 were alone returned, the committee held that even if thes^e statements were not 
 "abstracts" the votes ought not to be rejected, it not being denied that the aggre- 
 gates were correctly returned. 
 
 Morton vs. Daily, 37th Cong 1 Bart., 413 
 
 Betnrns forwarded by express instead of special messenger. 
 Where the returns of a county were required to be forwarded by special messenger 
 and they were, instead, forwarded by express, and there was some evidence indi- 
 cating that they had been tampered with on the way, the committee held that 
 there was some force in the contention that they should be rejected, but did not 
 reject them. 
 
 Chaves vs. Clever, 40th Cong 2 Bart., 469 
 
 Poll books not regularly retnrned. 
 Where the poll book was not returned with the certificate of election, but was found 
 in the room where the election was held some days later, and was not signed nor 
 certified, the committee held that, though it was an irregularity which, connected 
 with other irregularities, might have very considerable weight, still in .this case, it 
 being fully identified by evidence, and there being no proof that it had been tam- 
 pered with, it was not to be regarded as sufficient reason for rejecting the poll. 
 
 Flnley ys. Walk, 44th Cong Smith, 371 
 
 Betnrns not transmitted in time, and by messenger instead of by mail. 
 
 The law required the county returns to be in duplicate and to be forwarded to the 
 
 governor and secretary of state by mail within a given time. As made out they 
 
 differed in date, but were otherwise duplicates. They were not forwarded by mail, 
 
 but sent to the contestant by a private messenger, opened by a private person, and 
 
758 DIGEST OF CONTESTED ELECTION CASES. 
 
 by him delivered to the State board after the time required iDy law. They were 
 rejected by the State, board. The committee required further evidence to be pro- 
 duced befoi-e counting them, and two of the three county canvassers testified that 
 the copies in evidence were correct copies of the returns as made out by them. The 
 committee waived the other objections as immaterial, and counted the votes. 
 Niblaclcya. Walls, 4Sd Cong , Smith, 103 
 
 Betnrns delivered unsealed by nnauthorized person. 
 Where the returns should have been conveyed to the county auditor by one of the 
 judges of the election sealed, and they were instead conveyed by an unauthorized 
 person unsealed, but it was proved that he delivered them just as he received 
 them, the committee considered it a grave irregularity, but did not reject the 
 return. 
 
 Cox vs. Strait, 44ih Cong Smith, 436 
 
 Ballots forwarded by the wrong officer, and not "forthwith." 
 
 Where the law required the ballots to be forwarded forthwith, sealed, to the city 
 clerk's office by a constable in attendance on the election, and they were not for- 
 warded for several hours, and were then forwarded by a police officer, who, finding 
 the clerk's office closed, left the sealed envelope with the night watchman in the 
 city marshal's office until 7 o'clock the next morning, when he delivered it, with 
 seals unbroken, to the clerk, the committee held that the provisions which were 
 violated were mandatory, and that the vote must be thrown out, in the absence of 
 proof aliunde, especially as in this case there were reasons for suspecting actual 
 fraud. 
 
 The minority held that the law was directory; that the fact that the seals were intact 
 
 rebutted any suspicion that the ballots had been tampered with; that the vote was 
 
 proved by the returns, and that the evidence said to raise a suspicion of fraud was 
 
 inadmissible and insufficient. 
 
 Abbott vs. Frost, 44th Cong Smith, 602, 622 
 
 Beturns delivered by wrong officer. 
 Where the township returns were required to be delivered to the county returning 
 board by one 'of the judges of election, and they were instead delivered by the 
 registrar, there being no fraud, held unanimously that the returns should have 
 been received. 
 
 Yeatesvs. Martin, 46th Cong 1 Ells., 385, 407 
 
 Ballots sent to county canvassers nnconnted. 
 Where the law required the precinct officers to count the votes at the polling place 
 on the evening of election, and they instead forwarded the ballots uncounted to 
 the county canvassers, the minoritj; held that the county canvassers had no author- 
 ity to count the ballots, and were right in refusing to do so. 
 
 Smalls vs. Tillman {minority report) , 47th Cong 2 Ells., 487 
 
 Failure (in South Carolina) to forward precinct election papers to State canvassers. 
 
 The failure of the chairmen of the county canvassers of three counties (in South 
 
 Carolina) to forward to the governor and secretary of state the precinct election 
 
 papers can not vitiate the proceedings of the State board of canvasseriJ. 
 
 Smalls vs. Tillman {minority report), 47th Cong 2 Ells., 489 
 
 Authority of messengers not shown, etc. 
 Where county boards of canvassers possessing no judicial powers threw out the returns 
 of some precincts because the messengers delivering the sealed boxes containing 
 the returns did not jiresent written certificates showing their authority to deliver 
 them, others because the polls appeared from ex parte affida\'its presented not to 
 have been opened or closed precisely at the legal hour, and one because one of the 
 judges of election had not been legally appointed before the election, the minority 
 (on this point apparently sustained "by a majority of the committee) counted all 
 these returns. 
 
 Lee vs. Eifihardson {minority report), 47th Cuvy 2 Ells., 521-561 
 
IRREGULARITIES. 759 
 
 Slight irregularity in seal. 
 
 Where the returns of a county had been rejected by the State canvassers on the 
 
 ground that on the seal impressed on the returns the word ' ' county ' ' was written 
 
 over the word "circuit" of the seal, the committee unanimously counted the 
 
 returns. So of a precinct whicli liad been rejected because not returned in time. 
 
 Garrison vs. Mayo, 4Sth Cong Mobley, 56 
 
 Bettiru not sealed. 
 
 Where a town return had been rejected by the State canvassing committee because 
 
 not sealed as required by law, but no fraud appeared and there was other record 
 
 evidence that the vote therein stated was correct, the committee counted the votes. 
 
 Mallary vs. Merrill, IGlh Cong C. and H., 329 
 
 The law required the judges of election to seal up the returns, ballots, and one of the 
 poll books, and forward them by one of their number to the county clerk. In two 
 precincts the ballots and poll books were returned unsealed. The majority held 
 that the law requiring them to be sealed was directory, and that in the absence of 
 proof or suspicion of fraud the votes should not be rejected (McCrary, §166, and 
 elsewhere). In this case there was neither proof nor suspicion of fraud, and the 
 fact that the election had been held and the error committed by Democratic officers 
 exclusively, and that the papers had been in their custody alone, raised a presump- 
 tion that if fraud had been committed it would not have been in favor of 
 contestant. 
 
 The minority held that the law was mandatory, and that it was not necessary that 
 there should be positive proof that the ballots had been tampered with. "It is 
 sufficient to show that opportunity for such tampering has been afforded. The 
 burden of proving that this has not been done devolves upon the party insisting 
 upon the count." 
 
 Thi.s issue was the decisive one in the case. The House agreed with the minority. 
 Piatt vs. Goode, 44th Cong Smith, 654, 678 
 
 Ballots and poll books returned not sealed. 
 A precinct return rejected by the county commissioners because the ballots and poll 
 books were returned unsealed was unanimously counted by the committee. 
 
 O'Ferrall vs. Paul, 48th Cong Mobley, 147, 150 
 
 Return received after close of county canvass, counted by committee. 
 A return received the day after the adjournment of the county canvassing board, but 
 otherwise unimpeached, counted by the committee. 
 
 English vs. Hilborn, 53d Cong Report 614, pp. 1, 2 
 
 To be counted only if establisbed by competent evidence. 
 Where certain returns were not forwarded by the precinct inspectors to the county 
 canvassers, the committee presented a table of the alleged missing returns, to show- 
 that they were insufficient to affect the result, but held that the evidence by which 
 they were sought to be established was in any case inadmissible. 
 
 ]Vhatley vs. Cobb, 53d Cong Report 267, p. 2 
 
 Ballots stolen, rest of return counted. 
 Where the ballots from a precinct had been stolen after the count, the county com- 
 missioners rejected the poll book, for the reason that, the ballots being stolen, they 
 could not compare the two and verify the return. The committee said: "Wethink 
 that the commissioners erred. It was evident that the ballots were stolen to pre- 
 vent a fair ascertainment of the result of the election. The purpose of the spoli- 
 ators should have been frustrated if possible; the poll book, though not in the 
 condition required by law, should have been examined, and if found unaltered 
 should have been allowed. To determine whether or not it had been altered, the 
 commissioners were authorized by section 134 of the election laws of Virginia to 
 summon and examine witnesses. We allow the contestant his majority at this 
 precinct." 
 
 Ooode vs. Epes, SSd Cong Report 1952, p. 9 
 
760 DIGEST OF CONTESTED ELECTION CASES. 
 
 Returns received too late, counted by committee. 
 The committee counted returns not canvassed by the cfjunty canvassers in one county, 
 and refused to reject returns canvassed by the county canvassers in another county, 
 which returns in both of these cases had not been filed with the county canvassers 
 witiiin the time provided by law. 
 
 litixcnthal vs. Crowley, 54th Cong lieport 177 
 
 Received too late, counted. 
 The return of a county received too late fo be <c)untcd by the State canvassers was 
 counted by the committee. 
 
 Robinson vs. Harrison, S4ih Cony Report 1121, p. 5 
 
 In Canvass of Votjss [see aho Mistake) . 
 
 Foil books sent forward uncanvassed. 
 Where the law required the poll books to be canvassed by the probate judge and 
 three householders, and an abstract of the votes to be sent by them to the secre- 
 tary of the Territory, and the county registrar instead forwarded the poll books to 
 the secretary: Held, that the election wag not void, but the House refu.^ed to sus- 
 tain the committee (perhaps on other grounds). 
 
 Bennel vs. Chapman, 34th Cong _ 1 Bart. , 205 
 
 Returns opened and inspected by wrong officer. 
 
 "The law * * * has pointed out a particular mode of making election returns, 
 and has designated particular officers who shall open and inspect them. If they 
 are opened and inspected by any others they are thereby yitiated; for if such a 
 practice were tolerated innumerable frauds might be perpetrated and the popular 
 will defeated." 
 Daily vs. Estabrook, 36th Cong 1 Bart. , 302 
 
 Votes not canvassed and tabulated. 
 Where polls were- rejected by the official canvassers because no "abstract of votes" 
 was returned, but the abstract required was merely a computation or summation 
 of the votes, and the votes themselves were all returned (the election being rii-a 
 voce), the committee counted them. 
 
 Knox vs. Blair, SSili Cong 1 Bart., 534 
 
 Wbere result declared from tally sheets, irregularity in poll books immaterial. 
 Where poll books were defective — in not being signed or certified, and otherwise — 
 but the result was required to be declared from the tally sheets, and not from the 
 poll books, and there was no evidence in regard to the tally sheets, the i-ommittee 
 presumed that they had been returned correctly and in due form, and held that 
 the prima facie correctness of returns based upon them could not be impeached liy 
 showing that the poll books were defective. 
 
 Follelt vs. Delano, 39th Cong 2 Bart., 117-121 
 
 County canvass made up from affidavits of inspectors, the returns being stolen. 
 Where a county clerk testified that the precinct returns had been stolen from his 
 office, and that he had made out the county canvass on the basis of affidavits from 
 the judges of election in only part of the precincts, the committee said: "This way 
 of making a return is substantially defective, and such a certificate can furnish no 
 evidence of the correctness of its contents." No precinct returns or other e\idence 
 to establish the vote being presented, the votes returned were rejected. 
 -Gauae vs. Hodges, 43d Cong Smith 299 
 
 County canvassing board irregularly constituted. 
 Where the returns of a county were canvassed by the clerk of the county commis- 
 sioners and two county officers selected l>y him, under an old law, instead of by 
 the county commissioners, as required by the law in force at the time of the election, 
 and the vote of the county had been thrown out hy the Territorial can\assers for 
 this reason, the committee said: "Although this questioii as to the proper board 
 
IRREGULARITIES. 761 
 
 to canvass the precinct returns is a very important one for the Territorial canvassers 
 to consider, your committee <io not regard it of nuich importance in coming to a 
 decision in this case, as the question for the House to consider is who .in fact 
 received the highest numher of votes, and the precinct returns * * * very 
 clearly show the actual vote." 
 
 Fenn vs. Bennett, 44th Cong Smith, 593 
 
 Votes not canvassed. 
 "Nothing is better settled than this, that the failure of a lioard of canvassers to can- 
 vass the votes and declare the result does not invalidate an election otherwise regular 
 and valid." 
 
 Patterson vs. Belford, 45tKCong I Ells. , 54 
 
 Betnrns not canvassed. 
 Duly certified copies of the precinct returns "are by law the primary legal evidence 
 of the votes cast, and unless assailed are conclusive." Where returns were asked 
 to be thrown out on the ground that they had not been canvassed by the county 
 canvassers at their first count, and that the supreme court, under whose mandate 
 they were subseqaently canvassed, had no jurisdiction or authority to issue such 
 writ of mandamus, the committee declined to consider the question of the jurisdic- 
 tion of the supreme court, but held that there being no attack on the correctness 
 or integrity of the returns, and no reason shown why they should not have been 
 canvassed, it was the duty of the committee to count them. A similar decision 
 was rendered as to the vote of a county whose returns had not been canvassed by 
 the State canvassing board until they were required to be canvassed by a writ of 
 mandamus. 
 
 Bishee vs. Hull, 4Gth Cong Ella., 315-319 
 
 In Sonth Carolina, State canvass should be based on all the papers. 
 Wtiere the law (in South Carolina) required all the precinct election papers to be 
 sent to the governor and secretary of state, the committee held that if this was not 
 a repeal of the former law requiring the State canvassers to base their canvass on 
 the county returns, the two laws should at least be construed in pan materia, and 
 the canvass should be based on both the county returns and the precinct papers. 
 
 Smalls vs. Tinman, 47th Cong 2 Ells., 432 
 
 Precinct returns improperly rejected by county canvassers counted by committee. 
 Where county canvassing boards, possessing no judicial powers, had thrown out the 
 votes of a number of precincts regularly returned, the committee restored the votes 
 according to the precinct returns. 
 
 Mackei/ -vs. 0' Connor, 47th Cong 2 Ells., 567-572 
 
 A day too late, counted. 
 The returns of a county were twice canvassed, the first time the day before and the 
 second time the day after the proper day, the first time by disqualified canvassers, 
 the second time by their qualified substitutes. The committee held that the second 
 canvass was lawful. The board could have been compelled by mandamus to make 
 it, even after the legal day, and what they could be compelled to do they could do 
 voluntarily. And even if neither canvass had been lawful, the committee could 
 have' canvassed the votes. 
 
 Denny vs. Owena, S4ih Cong Report 1877, p. 5 
 
 Informal certificate, fatal. 
 
 Where the determination of the county canvassers was required to be " reduced to 
 
 writing, signed by said commissioners, and attested by the clerk, and shall be 
 
 annexed to the abstract of the votes," but the abstract of votes, instead, was merely 
 
 certified by the county clerk, who signed the name of the chairman of the board 
 
 to it under general instructions and also signed his own name, the committee 
 
 - rejected the vote of the county on the ground that the return was not signed and 
 
 that there was no other evidence of the vote. 
 
 Moore vs. Funston, 53d Cong Report 1164, p. 12 
 
762 DIGEST OF CONTESTED ELECTION CASES. 
 
 Not fatal. 
 The minority said: " It is no ground for the disfranchisement of the voters of a whole 
 county that the returning officers, on a day subsequent to the election, are guilty 
 of an informality in attesting the returns, where the result is not in any way 
 affected by such informality." 
 
 Moore vs. Funston {minority report), 6Sd Con// Report 1164, p. 25 
 
 JUDGES. 
 
 See Okficbes of Election'. 
 
 JUNIOR. 
 
 Omission of the word "junior" from ballots. {See Ballots, Imperfect.) 
 Omission from returns. {See Returns.) 
 
 JURISDICTION. 
 
 See House of Representatives and Committee on Elections. 
 
 LAND. 
 
 As a qualification for voting. {See Qualifications op Electors. ) 
 
 LAND LISTS. 
 
 See Evidence, Documentary. 
 
 LAWS. 
 
 Federal Election. {Sec Election Law.s. ) 
 
 LAWS, OF STATES. 
 
 See State Laws. 
 
 LAW FOR TAKING TESTIMONY (see also House of Representatives, 
 Evidence, and Notice of Contest). 
 
 Does not apply to some exceptioual cases. 
 In a contest between persons claiming election on different days the statutes of the 
 United States providing for taking testiniony in contested election cases do not 
 directly apply, unless by a fesolution of the House. 
 
 Holmes and Wilson, 4Sth Cong 1 EUs. , 324 
 
 Directory. 
 
 The committee regarded the law of 1851 "as directory merely, and not as absolutely 
 controlling the action of the House or of the committee (for they could not believe 
 that it was the intention of Congress, if it had the power, which is not conceded, 
 to disfranchise, by operation of this law, the people of a Congressional district 
 because of the inadvertence, ignorance, negligence, or collusion of the candidates 
 or either of tnem") . 
 
 Archer vs. Allen, S4th Cong Report 8, p. 8 
 
 In a later report in the same case they said: "The act itself was directory and cumu- 
 lative. Its object was to protect, and not to defeat, the rights of contesting parties 
 and of the people. It was to be an aid, and not an obstruction." 
 Archer vs. Allen, S4th Cong I Bart, 173 
 
LAW FOR TAKING TESTIMONY. 763 
 
 Directory, bat not to be departed from except for cause. 
 "The committee do not consider the act of 1851 as of absolute, binding force upon 
 this House, for, by the Constitution, each house shall be the judge of the elections, 
 returns, and qualifications of its own members, and no previous House and Senate 
 can judge for them. The committee, however, consider that act as a wholesome 
 rule, not to be departed from except for cause." 
 
 Williamson vs. Sickles, 36ih Cong , ' 1 Bart. , 290 
 
 Perhaps not binding, but should be followed. 
 "It may be true that the law of Congress prescribing the mode of practice to be fol- 
 lowed in the House in contested election cases is not absolutely binding upon the 
 House in view of the provisions of the Constitution of the United States (Article I, 
 sections), which provide that 'each House shall be the judge of the elections, 
 returns, and qualifications of its own members.' But it might work very great 
 injustice to a contestee to require him to meet a case outside of this parliamentary- 
 practice act without any previous notice to him that the House intended to depart 
 from it in a material respect. Until the House itself lays down and prescribes a 
 different mode of contesting elections before it, the parties to the contest have a 
 perfect right to rely upon the statute being strictly observed and followed. ' ' 
 
 Donelly vs. Washburn (minority report) , 46th Cong 1 Ells., 471 
 
 Directory, and may be disregarded by the House. 
 The provisions of the statute for taking testimony in election cases are directory 
 merely, constituting only convenient rules of practice, and the House is at liberty, 
 in its discretion, to determine that the ends of justice require a different course. 
 
 Bisbeevs. Finley, 47th Cong 2 Ells., 194 
 
 Mandatory. 
 The minority said, in regard to the law of 1851: "The law of Congress we do not 
 regard as merely directory or cumulative, but as peremptory and binding in its 
 import and intention as any other law regulating any other judicial proceeding. 
 The House, in judging of the election returns of its members, sits as a court. 
 Their proceedings are judicial in their character, and why is it not competent for 
 Congress by law to regulate the proceedings in this court as in any other? And if 
 such regulations are made, why are they not as binding? ' ' Any other construction 
 would amount to a practical repeal of the statute. 
 
 Archerya. Allen (minority report) , 34th Cong 1 Bart,, 175 
 
 The provisions of the law for taking testimony should be complied with. "This act 
 we hold to be as peremptory and binding as any law regulating any other judicial 
 proceeding, for the House in judging the election returns and qualifications of its 
 members sits as a court." 
 
 Whyte vs. Harris (minority report) , 36ih Cong Report 538, p. 42 
 
 mandatory on the House and the parties. 
 The minority held "that it is not competent for the committee to recommend any 
 action to the House which involves a violation of the law of 1851, because as a law 
 of Congress it is obligatory alike upon the House, the committee, and the contest- 
 ant; that the act, relating exclusively to the initiation of the proceedings, the taking 
 of testimony, and the preparation of the case for the decision of the House, does 
 not infringe upon the constitutional prerogative of the House to judge of the elec- 
 tion, return, and qualifications of its members." 
 
 Williamson vs. Sickles (minority report), 36th Cong 1 Bart., 295 
 
 liAWS, MANDATORY AND DIBECTORY (see also Election, Election 
 Lia-ws, and Registration Laws). 
 
 Difference between mandatory and directory statutes. 
 
 ' ' Election statutes are to be tested like other statutes, but with a leaning to liberality, 
 
 in view of the great public purposes which they accomplish; and except where 
 
 they specifically provide that a thing shall be done in the very manner indicated, 
 
 and not otherwise, their provisions designed merely for the information and guid- 
 
764 DIGEST OF CONTESTED ELECTION CASES. 
 
 ance of the officers must be regarded as directory only, and the election will not be 
 defeated or affected by a failure to comply with them provided the irregularity 
 has not hindered any who were entitled from exercising the right of suffrage, or ren- 
 dered doubtful the evidences from which the result was to be declared, or permit- 
 ted disqualified voters ti^ vote, and that the irregularity itself was not occasioned 
 by the agency of a party seeking to derive a benefit from it." (Many cases cited. ) 
 Hunt \s, Sheldon {minority report), 4Ul Cong 2 Bart., 528 
 
 If a statute expressly declares any particular act essential to the validity of the elec- 
 tion it is mandatory, but otherwise it is mandatory or directory, as the acts pre- 
 scribed affect or do not affect the actual result of the election. 
 Spencer vs. Morey {minority report), 44th, Cong Smith, 459 
 
 "There can be no directory provisions in a statute in regard to that which the statute 
 itself forbids being done at all. * * * The result of all the authorities is that 
 all constitutional provisions in [and] statutes defining what the voter himself must 
 do, both as to qualifying himself as an elector and furnishing the quality and quan- 
 tity of evidence thereof which the law demands, is mandatory, jurisdictional, and 
 in the nature of conditions precedent, while those which merely relate to the con- 
 duct of the election officers may or may not be directory, according as they may or 
 may not appear to affect results, and according as they may or may not seem to 
 have been regarded by the law-making power as essential and necessary safeguards 
 against the mischief the statute was intended to prevent." Under the registra- 
 tion law of Pennsylvania the failure to furnish the affidavits required of unregis- 
 tered voters is a neglect of the voter rather than of the officers, and the above rule 
 applies. 
 
 Curtin vs. Yocum {majority report), 46th Cong 1 Ells., 430 
 
 "The constitutional and statutory provisions relating to suffrage may be divided into 
 two classes: First, mandatory, which define the right of suffrage, and, second, 
 directory, which direct the manner of its exercise. The former relate to the 
 substance of the right, the latter to the mode of its exercise. The former confer 
 the right, the latter are as so many safeguards to conserve it. The right is derived 
 from the former, and its exercise regulated by the latter. The former deter- 
 mine the primal and ultimate authority in the Government; the latter serve as 
 a means to invoke and give force to it. The means being subordinate to the 
 end, it follows that directory provisions, whether constitutional or statutory, 
 must be liberally construed, and so-applied as to give legitimate force and efficacy 
 to the will of the sovereign power in the State. A different rule would subordi- 
 nate the substance to the shadow, and would in the end substitute technical quib- 
 bles for the ballots of the qualified electors. The primal inquiry is. Whom did the 
 qualified electors choose, as evidenced by their ballots, cast or offered, but refused? 
 The ascertainment of the will of the qualified electors is the end of directory stat- 
 utes, and this attained, 'the reason ceasing, the law also ceases.' " 
 
 Binbee vs. Finley {minority report), 47th Cong 2 Ells., 203 
 
 "The laws in relation to boxes, locks, the number of managers, clerks, etc., and the 
 ordinary facilities of an election are mainly directory, unless the statute makes them 
 otherwise, and an infraction of these directory provisions, in the absence of fraud, 
 will not vitiate the election. Nor is the voter to be deprived of his right, nor the 
 citizens to lose the result of an election fairly held, because of some unimportant 
 omission of form, or the neglect of duty, carelessness, or ignorance of some election 
 officer, or the failure to carry out some unimportant direction of the law." 
 Smalls vs. Elliott {minority report), 50th Cong Mobley, 722 
 
 Statutes directing the mode of proceeding of public officers are directory merely, 
 unless there is something in the statute itself which plainly shows a different intent. 
 
 Smith vs. Jiichsov, 51st Cong Eowell, 23 
 
 Statutes to be construed strictly as to the officers, and liberally as to the electors. 
 "The general doctrine in construing election statutes is that they are to be construed 
 liberally as to the elector and strictly as to the officers who have duties to perform 
 under them. A statute directing certain things to be done by election officers 
 ought to be followed by them with a high degree of strictness, but duties to be 
 performed by the electors, as declared by statute, are directions merely, which, if 
 not observed, it is true, may in some instances defeat his ballot, but when there 
 
LAWS MANDATORY AND DIRECTORY. 765 
 
 is an honest intention to obey the law, and the voter is not put in fault by any 
 laches or negligence which he, by the use of reasonable diligence, mightor- could 
 avoid, or where there is no palpable intention of violating the law apparent, in 
 order to maintain the inestimable right of voting, courts have generally adopted 
 the most liberal construction." 
 Lynch vs. Chalmers, 47th Cong 2 Ells., 350 
 
 Violation of mandatory laws fatal ; of directory laws immaterial. 
 The violation of directory provisions of the law, if no fraud be shown to have 
 resulted therefrom, can not vitiate an election. It is wholly different when man- 
 datory provisions of an election law are violated. In the latter case the election 
 is void. But the voter is not to be deprived of his right, and the citizens are not 
 to lose the result of an election fairly held because of some unimportant omission 
 of form, or from the neglect, carelessness, or ignorance of some election officer, or 
 the failure to carry out some unimportant direction of the law." (Many cases 
 cited. ) 
 
 Richardson vs. Rainey, 45th Cong .• 1 Ells., 230 
 
 Disregard of directory laws immaterial. 
 "Regulations maybe merely directory, and if the officer of election or the voter 
 does not follow them they do not necessarily vitiate the vote when deposited and 
 received." 
 
 Lowe vs. WlieeUr {Mr, Eannef/), 47th Cong 2 Ells., 97 
 
 Where the law itself forbids coTintiug ballots of certain sorts, it is mandatory. 
 "The general rule, doubtless, is to count those ballots which clearly express the inten- 
 tion of the voter, but the intention must be expressed as provided by law. * * * 
 The intention of the voter, if it c^n be clearly ascertained from the ballot, will 
 generally be given effect to, and when it is not expressed according to the strict 
 requirements of a statute such requirements will often be regarded as merely direct 
 ory, unless a failure to-comply with them is declared to be fetal to the ballot. But 
 where the statute itself provides that a certain thing shall be done by the voter or 
 his vote shall not be counted, then there can be no question that a provision of that 
 character is mandatory and that a failure to comply with it is fatal to the ballot." 
 Yost vs. Tticher, 54th Cong Report 1636 
 
 South Carolina ballot law mandatory. 
 The law of South Carolina prescribing the form of the ballot aiid requiring that ' 'no 
 ballot of any other description found in any election box shall be counted" is man- 
 datory. "The ballot not in the prescribed form is illegal, and must be rejected, 
 because the law in terms declares that it shall not be counted. " All the ballots cast 
 for contestant were rejected for irregularities in paper, printing, and cutting, under 
 this law. 
 
 Miller vs. Elliott, 52d Cong Stofer, 172 
 
 Beqnirement of an oath mandatory. 
 " Etery regulation in relation to elections * * * is, in fact, directory; but there 
 are .some of these regulations more substantive and important in 'their use and 
 character than others; and somewhere it is necessary to draw the line, distinguish- 
 ing between that which is proper, but not essential, and that which so enters into 
 the essential character of a good election that a failure in it should be held a fatal 
 defect. Of this latter class the undersigned [minority] believe to be the require- 
 ment of an oath from at least 'a majority of the officers.' " 
 
 Ooggin vs. Gilmer {minority report) , $Slh Cong Report 76, part 2, p. 6 
 
 Begistration law in Lonisiana directory. 
 "The principal and only aim of the law is to secure fair elections, and the nonobserv- 
 ance of directory provisions can not annul an election carried on with all the essen- 
 tials of an election and with perfect fairness." The registration law of Louisiana 
 was held to be directory and its partial disregard immaterial. 
 
 Flanders an4 Hahn, S7ih Cony , , . . . 1 Bart. , 443 
 
766 IGEST OF CONTESTED ELECTION CASES. 
 
 Pennsylvania election law mandatory. 
 The provisions of the Pennsylvania registration law requiring personal application 
 for the registry of additional names, requiring these names to be entered on the 
 original list and not on a separate one, and requiring the assessor to furnish certi- 
 fied copies of his list to the election officers and the county commissioners "are not 
 directory merely, but mandatory, and enforced by severe penalties." 
 
 Covode vs. Foster, 41st Cong 2 Bart., 607 
 
 Clause affecting titles of bills mandatory. 
 The committee expressed the opinion that the provision of the constitution of Ten- 
 nessee that "no bill shall become a law which embraces more than one subject, 
 that subject to be expressed in the title," was mandator)?, and that those portions 
 of any law not included in the subject expressed in the title would be void. 
 
 Tennessee Election, 4~d Cong Smith, 6 
 
 LEGISLATURE. 
 
 Power of legislatures over Congressional elections derived from the Constitution. 
 " Whatever power the legislatures possess overelections they derive from the Consti- 
 tution and not from the laws of the United States. ' ' 
 
 Members elected by general ticket, SSth Cong 1 Bart., 52 
 
 Laws of States in regard to Congressional elections to be tested only by Constitntion 
 of the United States. 
 "In testing the validity of any lav^s of the States relating to the election of Eepresen- 
 tatives in Congress, and those elections also, we are to look only to the Constitution 
 of the United States. ' ' 
 
 Members elected by general ticket {minority report) £8th Cong 1 Bart., 57 
 
 Time of holding elections not to be fixed by constitutional convention in presence of 
 legislature. 
 Where a constitutional convention continued in session and passed laws after the legis- 
 lature had assembled, and among these laws was one fixing the time of Congres- 
 sional elections, the committee held that the law was invalid, on the ground that 
 the passage of such a law was a legislative function and could not be exercised by 
 the convention in the presence of the legislature. 
 Beach, 37th Cong 1 Bart., 393 
 
 Its power over Congressional elections paramount to State constitution. 
 The constitution of Michigan plainly prohibited a voter from voting outside of the 
 township or ward in which he resided, and had been so construed by the supreme 
 ^ court of the State. The legislature had passed an act permitting soldiers in the 
 Army to vote wherever they were encamped. The committee held that in such a 
 case the authority of the legislature was paramount over that of the State constitu- 
 tion. The Constitution confers the right of fixing the times and places of elec- 
 tions on the legislatures of the States, and the committee held that by this was 
 meant " the legislature, eo nomine, as known in the political history of the country." 
 If the constitutional convention was a constructive legislature, then its enactments 
 on this subject were simply legislation and could be superseded by later legislation. 
 
 Baldwin vs. 'Trowbridge, 39th Cong 2 Bart., 47 
 
 "The time of electing members of Congress can not be prescribed by the constitution 
 of a State as against an act of the legislature of a State or an act of Congress. * * * 
 The only apparent exception has been in the constitutions which have been 
 formed by Territories and with which such Territories have been admitted into 
 the Union an States. But this, if it be a valid exception, does not prove that Ter- 
 ritories have the right by a constitution to fix the time for electing Eepresentatives 
 in Congress when they become States. But the authority of these provisions rests 
 on the sanction and adoption of them by Congress in admitting such Territories as 
 States with constitutions containing such provisions." 
 
 Holmes and Wilson, 4Gth Cone/ 1 Ells., 339 
 
LEGISLATURE. 
 
 767 
 
 "The State legislature is not responsible to the State nor controlled by the State con- 
 stitution in its action in regard to the manner o£ holding Federal elections. In case 
 of a conflict between the act of a legislature and the constitution of the State in 
 matters purely of a Federal character, the act of the legislature will prevail, pro- 
 vided it IS not in conflict with the Constitution of the United States." 
 Donnelly vs. Washburn (minority report), 46th Cong 1 Ells., 495 
 
 Has full power where not restrained by constitution. • 
 
 "Constitutional restriction upon legislation must be plain and certain. A State 
 legislature has supreme power of legislating except where it is restricted by the 
 constitution; and everything will be presumed in favor of the power of the legis- 
 lature. The courts will not declare an act unconstitutional unless it is clearly made 
 so by an express provision of the constitution." 
 
 Cox vs. Strait, 44th Cong Smith, 430 
 
 Has prim&ry control over times, places, and manner of elections. 
 The Constitution "manifestly gives to the legislative departments of the several 
 State governments primary and full control over the 'times, places, and manner 
 of holding elections' for Representatives in Congress, subject only to such limita- 
 tion or interference as Congress may affirmatively enact. * * * Inasmuch as the 
 general power over the subject rests with the legislative departments of the States, 
 the acts of Congress can not be held to have a wider scope than their language 
 necessarily means, and a casus omissus, if there be any, remains under State 
 control." 
 
 Patterson vs. Belford {Mr. Cox), 46th Cong 1 Ells., 67 
 
 A constitutional convention is a legi.jlature. 
 "It must * * * be regarded as settled thata constitutional convention is included 
 under the general term 'legislative' in thjj Constitution of the United States and 
 acts of Congress made in obedience thereto. ' ' 
 
 Pattersonva. Belford {Mr. Cox) 45th Cong 1 Ells., 68 
 
 Bound by State constitution even in regard to Congressional elections. 
 The 'legislature' of a State, in its fullest and broadest sense, signifies that body in 
 which all the legislative powers of a State reside, and that body is the people them 
 selves, who exercise the elective franchise." It is to this legislative body, acting 
 by constitutionaj convention or otherwise, that the power of fixing the times and 
 places of Congressional elections is given. Or if "this section of the Federal Con- 
 stitution can be construed to refer to this secondary or subordinate legislative body 
 of a State, it must be held to mean that the time, place, and manner for holding 
 elections for Eepresentatives shall be prescribed in each State by the legislature 
 thereof, such legislature acting in subordination and in conformity to that organic 
 . law to which it owes its own existence." An act of the legislature permitting 
 soldiers in the Army to vote outside the State contrary to the State constitution 
 is void. 
 
 Baldwin vs. Trowbridge {Mr. Marshall) S9th Cong 2 Bart. , 49 
 
 Can not fix Congressional election at another time than that prescribed by State con- 
 stitution. 
 Where the constitution of the State had fixed the election at a certain time, the com- 
 mittee held that it was so fixed beyond the control of the legislature, and recom- 
 mended that the contestant, who was elected on the date fixed by the constitution, 
 be admitted. 
 
 ,'hvd vs. Thayer, 37th Omg 1 Bart., 349 
 
 Legislature presumed to have followed constitution. 
 Where certain chapters and articles of the code of Tennessee were mentioned in a 
 statute as being reenacted, but to reenact them in toto would have been to violate 
 the constitution in several important particulars, the committee held that the legis- 
 lative intent must have been to reenact only such provisions as constitutionally 
 could have been reenacted. 
 
 Tennessee election, 4^d Cong Smith, 3 
 
768 ' DIGEST OF CONTESTED ELECTION CASES. 
 
 Proceedings Bbfoee Legislature Not Admissible as Evidence. {See Evidence 
 
 in Other Proceedings. ) 
 
 MANDATORY LAWS. 
 
 See Laws, Mandatory and Directory. 
 
 MEMBERSHIP. 
 
 When its incidents commence. 
 Membership in the House of Representatives does not commence until the organiza- 
 tion of the House and the taking of the oath bj; the member. A Representative- 
 elect previous to that time has some of the privileges of membership, but he may 
 hold an office incompatible with membership without affecting his rights. 
 
 Hammond vs. Herrich, ISlh Cong C. and H., 286 
 
 What constitntes. 
 Membership in the House is not constituted by election, or by return, or both. One 
 is not a member until he has also been qualified by taking the oath. 
 
 Hammond vs. Herrich, 15th Cong C. and H., 293 
 
 Emoluments cover full term when only one member elected during term. 
 Where the House had decided that neither candidate (under the Rhode Island 
 majority- vote law) had been elected at the first election to the Forty-ninth Con- 
 gress, and claimant had been elected at the second election, the committee in the 
 Fifty-third Congress reported that he should have been paid for the full term, as 
 he was the only member elected from iis district to the Forty-ninth Congress. 
 Page, SSd Cong Report 1645 
 
 Franking privilege, etc., do not imply membership. 
 The franking privilege and right of exemption from arrest belonging to Representa- 
 tives-elect before the organization of the House do not imply tha,t the incidents of 
 membership have yet commenced or that the House is yet in existence. 
 
 Hammond vs. Herrich, 15th Cong C. and H., 295 
 
 MEXICAN CITIZENS. 
 
 Persons who had elected to retain Mexican citizenship could not vote. 
 Under the stipulation of the treaty with Mexico permitting the inhabitants of New 
 Mexico to elect whether they would retain their Mexican citizenship or become 
 citizens of the United States, the committee held that persons who had enrolled 
 themselves upon registries established at the prefectures in the various counties, 
 under a proclamation issued by the military governor, had legally elected to retain 
 their Mexican citizenship, and could not vote for Territorial Delegate. 
 
 Otero vs. OaUegos, 34th Cong 1 Bart., 79 
 
 MILITARY GOVERNOR. 
 
 Powers of; may fix time of election. 
 "The exact powers of a military governor can not be easily defined. They have 
 their origin in, and are probably limited by, necessity. They are to some extent 
 civil, as well as military, and the authority for his civil functions is no less clear 
 than for his military." The right of the military governor of Louisiana to fix the 
 time of an election was sustained. 
 
 Flanders and Hahn, S7th Cong '. _ 1 Bart., 446 
 
 MILITARY INTERFERENCE. 
 
 See Intimidation, Military Interference, 
 
MILITABY EESEEVATIONS. 769 
 
 MILITARY RESERVATIONS. 
 
 Besideuta on, may vote in the Territories. 
 The rule prohibiting persons from voting in the States who reside ou territory ceded 
 to the United States held not to apply to persons residing on military reservations 
 in the Territories, as there is in the latter case no conflict of sovereignty, and the 
 reservations are only temporarily set aside for military use by Executive order. 
 
 Burleigh and Spink vs. Armstrong, 4~d Cong Smith, 90 
 
 MINISTERIAL OFFICERS (see also Officers of Election and Canvassing: 
 
 Board). 
 
 Mistakes by, to be corrected by the Honse. 
 The officers of election, board of canvassers, and governor ' ' are all ministerial officers, 
 and error committed by any of them, either through mistake or design, is to be 
 corrected by the House." 
 
 Biddle and Richard vs. Wing, X9th Cong C. and H. , 513 
 
 Secretary of state (of Missouri) not antborized to reject retnrns. 
 The secretary of state of Missouri, being a mere canvassing officer, had no power to 
 go behind the returns certified to him by the county clerks. Where a county 
 clerk included in his returns extra-official statements of violations of the registry 
 law, the secretary of state should still have canvassed the returns, and issued the 
 certificate to the person having the majority of the votes as returned. 
 
 Switzler vs. Anderson (majority report), 40th Cong 2 Bart. , 378 
 
 Have no rigbt to investigate qnestions of fraud. 
 Under the law of Missouri requiring the secretary of state "to cast up the votes" 
 returned to him and certify to the election of the person receiving the highest 
 number of votes, he was a purely ministerial officer, and had no right to investi- 
 gate questions of fraud and reject the vote of a county. 
 
 Switzler vs. Dyer {majority report), 41st Cong 2 Bart. , 778 
 
 Have no rigbt to reject retnrns for fraud. 
 The committee unanimously held that the governor of Tennessee had no right to 
 reject the votes of counties or parts of counties. It was his business to add up the 
 returns as received by him and leave the correction of frauds to the House. 
 
 Sheafe vs. Tillman, 41st Cong 2 Bart., 910 
 
 The committee unanimously held that the secretary of state of Missouri had no right 
 to reject the votes of a county. "His sole duty was to add together the votes returned 
 to h im as cast for each candidate in the several counties, and to give the certificate to 
 the person to whom, upon such addition, it appeared that a majority of votes had 
 been given." 
 Shields vs. Van Horn, 41st Cong 2 Bart., 923 
 
 County canvassers generally ministerial. 
 The duties of the county canvassers in Minnesota (and in most other States) are 
 purely ministerial. 
 Donelly vs. Washburn {minority report), 46th Cong 1 Ells. , 512 
 
 Have no power to count ballots for a candidate imperfectly designated. 
 "Under the laws of Ohio the State board are merely ministerial officers, invested with 
 no power to meet the parties and hear evidence, and had they attempted to do it, 
 it would have been a clear violation of duty." The State board had no right to 
 assume that votes for "John H. Wallace," "Major Wallace," "W. W. Wallace," 
 etc., "and returned as if for different persons, were in fact intended for Jonathan 
 H. Wallace. The State board had no legal authority whatever to hear evidence 
 and determine that issue of fact. -If they had, they should not have stopped there, 
 but proceeded to hear other controverted issues of fact. ' ' 
 
 Wallace vs. McKinley {minority report) 4^th Cong Mobley, 191 
 
 H. Doc, 510-^49 
 
770 DIGEST OF CONTESTED EtLECTION CASES. 
 
 Have no right to decide population. 
 Where it was provided that in all towns of over 2,000 inhabitants a transferred voter 
 must have his transfer recorded at least 10 days prior to the election, but in all 
 other cases might vote without such registry, liM that the election judges had no 
 right to decide that a town was within the exception in the absence of any legal 
 determination of its population. 
 
 Bowen vs. Buchanan, 61st Cong Rowell, 197 
 
 MISTAKE ' (see also Irregularities and Evidence). 
 
 In viva voce election, mistake in recording votes corrected. 
 Votes set down by the sheriff, by mistake, as cast for petitioner when, in fact, ca-st for 
 sitting member were counted by the committee as cast. 
 Porterfield vs. McCoy, Uth Cong - . - C. and H., 267 
 
 Mistake in returns corrected by the House. 
 Where the deputy clerk of a county, in making out a transcript of returns to be sent 
 to the secretary of state, spelled the name Root as Rott, and the votes lu.st thereby 
 were sufficient to give the seat to petitioner, the House, on proof of the mistake, 
 corrected it and gave him the seat. 
 
 Root vs. Adams, 14th Cong C. and H., 271 
 
 Where, by mistake of the returning officer, the names of certain candidates for 
 
 State offices were inserted as having received the votes for Congress, which were, 
 
 in fact, as shown by the record in the town clerk's office, cast for the candidates 
 
 for Congress, the committee counted them as cast. 
 
 Mallary vs. Merrill, 16th Cong C. and H., .330 
 
 Where the inspectors of election in two towns, by mistake, returned the number of 
 
 votes cast incorrectly, and the mistakes and true vote were proved by the testimony 
 
 of the inspectors, the committee counted the vote as thus ■shown to have been cast. 
 
 Adams vs. Wilson, 18th Cong C. and H., 373 
 
 Where the inspectors, by mistake, had omitted to return any votes for the petitioner, 
 
 the committee, on proof of the number actually cast for him, counted them as cast. 
 
 Wright vs. Fisher, Slst Cong C. and H., 518 
 
 May be corrected by the House, but not by the canvassers. 
 The committee sustained the action of the State board of canvassers in refusing to 
 receive amended county returns correcting mistakes in the first returns, but held 
 that this action was not binding on the House, whose duty it was to go behind all 
 returns. 
 
 Chrisman vs. Anderson, S6th Cong 1 Bart. , 332 
 
 County canvassing boards (in Kentucky) may reconvene to correct mistakes. 
 The minority held that county canvassing boards in Kentucky had a right to recon- 
 vene after they had made out their returns and adjourned and to make supplemen- 
 tary returns, correcting mistakes in the first returns, provided these supplementary 
 returns were forwarded before the meeting of the State canvassers. 
 
 Chrisman vs. Anderson {minorhij report), 36th Cviig _ ,] Bart., .':1C6 
 
 . Board may reconvene and correct mistakes. 
 Where a county court in West Virginia at its next regular session after the special 
 session at which it had canvassed the vote of the county made a supplementary 
 return to correct a clerical error in the first return, and the governor refused to 
 count the second return on the ground that the county court after the adjournment 
 of the special session at which it was required to canvass the returns was /uncitts 
 officio, and had no power to reconvene for any purpose connected with the election, 
 the committee held that the returns should have been counted. ' ' There is inherent 
 
 ' Clerical errors, omitted returns, and the like were also corrected as a matter of 
 course in many cases not here indexed. 
 
MISTAKE. 
 
 771 
 
 in every body charged with the ascertainment of the popular will, whether its func- 
 tions be judicial or ministerial, the power to correct an error when discovered, and 
 to make its conclusions conform to the facts." The minority held that the gov- 
 ernor was right in his ruling, but counted the vote as shown in the second return, 
 upon evidence that it correctly represented the vote. 
 Smith vs. Jackson, Slst Cong Eowell, 16 
 
 Where a county returning board in making out their abstract accidentally omitted 
 one precinct, but before forwarding their return discovered and corrected their 
 mistake, held, that this was just what ought to have been done, and if this precinct 
 return had not been included it would have been the duty of the committee to 
 include it in the total vote. The vote of a county can not be thrown out for such 
 an informality. 
 Bowen vs. Buchanan, Slst Cong Rowell, 196 
 
 Corrected, when proved by testimony of custodian of returns. 
 Where the clerk of a county testified that on a careful examination of the poll books 
 in his possession he found that contestant had received 318 votes, instead of 309 
 as certified to the secretary of state, the committee added 9 votes to the vote of 
 contestant. 
 
 Burch vs. Van Horn, 40tK Cong 2 Bart., 205-211 
 
 Must be clearly shown to have been made. 
 
 Where a certified copy of one tally sheet appeared to show that one set of three marks 
 
 had been counted as five, but the other tally sheet was not produced, the ballots 
 
 were not examined, and none of the inspectors and only one clerk was called as a 
 
 witness, the testimony was held to be insufficient to establish the fact of a mistake. 
 
 Gooding vs. Wilson, 4Sd Cong Smith, 81 
 
 Where it was alleged that a figure 1 in the second column from the right, with no 
 
 after it, and which had been footed up as 10, ought to have been counted as 1, but 
 
 there was no evidence that the true figure was not 10, the committee held that if 
 
 the error had been committed it ought to be better proved. 
 
 Frost vs. Metcalfe, 4Sth Cong .1 Ells., 291 
 
 Mistake in footing up returns corrected. 
 Where the county managers, in footing up their consolidated return, had made an 
 error to the disadvantage of contestant, evidently by mistake in omitting to include 
 the vote given for him in one precinct, the committee unanimously agreed to 
 correct the mistake. 
 
 Sloan vs. Bawls, 43d Cong Smith, 147, 168 
 
 Mistake in summing up returns corrected by precinct returns. 
 Where it was alleged that an error had been made in summing up the precinct 
 returns of a county, and certified copies of the precinct returns were in evidence, 
 showing in the aggregate a larger number of votes for contestant than was shown 
 in the total certified to the governor, and the precinct election officers testified to 
 the correctness of the copies of the precinct returns in evidence, and there was 
 other evidence to the same effect, the committee held that the vote should be 
 counted according to the precinct returns. The minority held that the evidence was 
 insufficient to show the incorrectness of "the totals certified to the governor, because 
 the correctness of the certified copies of the precinct returns in evidence was only 
 proved by the memory of the election officers, some months after the election; 
 because copies of only one of each of the duplicate precinct returns were in evidence, 
 and because the vote in one of the returns was written in figures, and might easily 
 have been tampered with. The House sustained the majority. 
 
 Mudd vs. Compton, Slst Cong Rowell, 149, 165 
 
 Precinct omitted by mistake counted. 
 Where the county records had been burned and by mistake the vote of one precinct 
 had not been counted, the committee counted it on proof of the vote. 
 Bell vs. Snyder, 43d Cong Smith, 255 
 
772 DIGEST OF CONTESTED ELECTION OASES. 
 
 Clerical error corrected. 
 Votes returned for "Benjamin B. Enloe" and "P. H. Thresher" were counted for 
 Benjamin A. Enloe and P. H. Thrasher, it appearing that the mistake in the names 
 was a clerical error on the part of the retummg officers. 
 
 Thrasher ys. Enloe, 53d Cong Report 842, pp. 1, 2 
 
 MODE or PBOCEDXniE. 
 
 (Under this title are included the methods of procedure tentatively adopted in the 
 early cases, and also the methods adopted in exceptional cases after the ordinary 
 mode of procedure had become settled. The citations are arranged in chronological 
 order with no attempt at classification.) 
 
 In the first case in the First Congress the testimony was taken in the first instance by 
 the committee at the seat of government, the House to determine afterwards if 
 more was necessary. 
 Ramsay vs. Smith, 1st Cong C. and H., 23 
 
 Evidence taken in first instance by Committee on Elections. It afterwards appearing 
 
 that certain testimony could not be conveniently taken at the seat of government, 
 
 the committee asked instructions of the House. After debate, the matter was laid 
 
 on the table. 
 
 New Jersey Members, 1st Cong C. and H., 38 
 
 Counsel heard by the House. 
 
 New Jersey Members, 1st Cong C. and H., 38 
 
 Jackson vs. Wayne, Sd Cong '. C. and H., 47 
 
 Moore vs. Lewis, 8th Cong -.. C. and H., 129 
 
 Appointment of a committee, 31st October, 1791, consisting of Mr. Ames, Mr. Dray- 
 ton, Mr. Brown, Mr. Fitzsimmons, and Mr. Tucker, to report a uniform mode of 
 procedure C. and H. , 44 
 
 (The act was passed January 23, 1798.) 
 
 Testimony taken by deposition under special resolution of the House, and trial in 
 Committee of the Whole. Counsel heard. 
 Jackson vs. Wayne, Sd Cong C. and H., 47 
 
 Testimony taken by commissioners, under special resolution of the Committee on 
 Elections, and transmitted to committee, which reported a state of facts and con- 
 clusions. Trial in Committee of the Whole and in House, on basis of report, state- 
 ment of sitting member, and testimony. 
 
 Latimer vs. Patlon, Sd Cong C. and H., 69 
 
 A case was originated apparently by an rx officio investigation by the committee. 
 
 Bard, 4th Cong __.C. and H., 116 
 
 Mode of procedure prescribed, as in case of Latimer vs. Patton, with the addition that 
 parties should give each other ten days' notice of the names of illegal voters 
 alleged before taking evidence in regard to them, and that the testimony of the 
 petitioner should be confined to the facts stated in the specification handed to the 
 committee. 
 
 Rutlierford vs. Morgan, 5th Cong _C. and H., 118 
 
 A case was originated in the House, on the motion of a member, without any peti- 
 tion. 
 
 Van Ness, 7lh Cong , C. and H., 122 
 
 Where there was such an exhibition of feeling between the parties as to induce the 
 committee to reconsider their decision to hear oral arguments, the parties were 
 required to file their arguments in writing. 
 Arnold vs. Lea, Slst Cong C. and H., 607 
 
MODE OF PEOCEDURE. 773 
 
 The House ordered that the written testimony of both parties be printed, with such 
 portions of the printed documents as should be "adjudged by the Committee on the 
 Judiciary to be in any wise applicable to the case." The Committee on the Judi- 
 ciary reported that the documents were all irrelevant, and they were not printed. 
 Arnold vs. Lea, Slsl Cong C. and H., 607 
 
 Where testimony had been taken upon an assumption that did not satisfy the com- 
 mittee, it instructed the parties to procure other testimony, fixing a reasonable date 
 on which it should be closed, and allowing time for transmission through the mails 
 after that date. 
 
 Draper vs. Johnston, ilM Cong C. and H., 708 
 
 On the first day of the session, while the Clerk was calling the roll, objection was 
 
 made to the qualification of one of the members claiming a seat, on the ground of 
 
 insufficiency of his certificate. After some discussion the matter was waived until 
 
 after the election of the Speaker, by the voluntary withdrawal of the claimants. 
 
 Letcher vs. Moore, SSd Cong C. and H. , 721 
 
 Where the House had adjudged that neither of the claimants had a prima fucie right 
 to the seat, the case was referred to the Committee on Elections, when appointed, 
 and they were instructed to receive as evidence all the depositions which had 
 been or should be taken on due notice. 
 
 Letcher vs. Moore, SSd Cong C. and H. , 747 
 
 Where a ease had been referred to the committee by the House, with instructions to 
 receive as evidence all depositions which had been or might be taken on due 
 notice, the committee received the depositions already somewhat informally taken, 
 all objections being waived by the parties, and fixed a time within which further 
 testimony might be taken. Time was given after the date fixed to allow for trans- 
 mission in the mails, and on the receipt of the testimony parties were permitted 
 to take it from the committee room to prepare abstracts and arguments. 
 
 Letcher vs. Moore, 23d Cong C. and H., 748, 749 
 
 After the committee had established certain principles in regard to illegal votes, a 
 subcommittee of two was appointed, with instructions to decide votes when they 
 could agree, but when they could not agree, or the vote depended on a new prin- 
 ciple, to leave it undecided. The committee then considered the undecided votes. 
 Letcher vs. Moore, S3d Cong C. and H., 825 
 
 Where, through inadvertence, the sitting member had not been given full notice of 
 the taking of testimony, and had been unable to attend, the committee passed a 
 resolution granting forty days' additional time for taking testimony. Before the 
 expiration of this time the House passed a resolution calling on the committee to 
 report what action had been taken. The committee reported its action, with a 
 statement that such action was in accordance with many precedents, and was in 
 the interest of fairness. 
 
 Archerys. Allen (1st report), S4th Cong Report No. 8, 1st sess. 34th Cong., 
 
 and 1 Bart., 170. 
 
 Where the contestant alleged a state of violence and intimidation and armed inva- 
 sion, which, Ijecause of their public importance, demanded investigation, but which 
 rendered it impossible to take testimony in the ordinary way, the committee 
 recommended that the investigation be made in Washington by the committee. 
 But the House sent a special committee to Kansas. 
 Reeder vs. Whitfield [IH ease), 34lh Cong 1 Bart., 185, 202 
 
 Where the contestant claimed that such a state of violence and intimidation existed 
 as to render it impracticable to take testimony under the law of 1851, and peti- 
 tioned for a special investigation, the House refused to grant the petition. 
 
 Brooks vs. Davis, 35th Cong 1 Bart., 245 
 
 Where the election to fill a vacancy was held so near the close of the term that to 
 have proceeded 'n the ordinary way would have carried the preliminary proceed- 
 ings of the contest to the expiration of the Congress, and contestant presented his 
 notice of contest in a protest to the House, accompanied by a small amount of 
 
■774 DIGEST OP CONTESTED ELECTION CASES. 
 
 record evidence, which waa all that he relied on, the committee said that much 
 might be said in justification of his course, but as in the view the committee took 
 of the election a consideration of the evidence was unnecessary, they did not decide 
 the question of the sufficiency of the notice. 
 The minority held that the notice was "legally and substantially sufficient." 
 
 Huntvs. Menard, 40th Cong 2 Bart, 481, 495 
 
 Where the committee on elections was instructed to investigate certain charges 
 against the validity of the election of one of the members of the House said to be 
 made in testimony taken by a Senate committee, but the matter only came before 
 the committee seven days before the expiration of the Congress, they aeked to be 
 discharged from further consideration of the subject. 
 Sypher, 4Sd Cong Smith , 1 07 
 
 Where there was a question as to the legal time for holding the election, and the 
 candidate elected in October had the certificate of election and the one elected in 
 November presented an abstract of the vote cast, neither party was sworn in, but 
 the papers were referred to the committee on elections with instructions to report 
 as to either the prima facie or final right, as it should deem proper. 
 
 Patterson vs. Belford, 45th Cong 1 Ells., 52 
 
 Where notice of contest and answer were duly served but no testimony was taken, 
 the committee, on showing of contestant, adopted a resolution recommending the 
 granting of further time in which to serve new notice of contest and answer; but 
 this resolution, through inadvertence, not being reported to the House in time to 
 be of any service,'the committee rescinded its former action and recommended that 
 the contest be dismissed. 
 McCabeYS. Orth, 4eih Cong 1 Ells., 320 
 
 Where the time in which to take- testimony in a contest for the seat of a member 
 
 returned as elected to fill a vacancy extended beyond the expiration of the Congress, 
 
 the committee recommended that a special committee be sent to investigate the 
 
 case more speedily. 
 
 Jones vs. Shelley, 47th Cong 2 Ells., 681 
 
 The ordinary method of trying contested elections in accordance with the provisions 
 of the act of Congress will not be departed from without good cause. 
 Jones vs. Shelley ( minority report) , 47th Cong 2 Ells. , 686 
 
 Where the contestee conceded that contestant was elected on the face of the returns 
 and announced his intention not to claim the seat upon the certificate alone, but 
 the certificate was presented to the House by a member and a resolution proposed 
 requiring contestee to qualify as a member, the House passed a resolution referring 
 all the papers to the Committee on Elections with instructions to report imme- 
 diately which party, on these papers, had a prima facie right to the seat. The com- 
 mittee reported that the papers referred showed that contestant had a large majority 
 on the face of the returns. The > committee, having in this case been authorized 
 both by the House and the action of contestee to go behind the certificate, could 
 not agree that contestee should be seated upon his prima facie title. Contestant, 
 having no such credentials as the law contemplates, ought also not to be seated 
 pending the contest. 
 
 Chalmers vs. Manning, 48th Cong ^Nlobley, 8-10 
 
 Where testimony, taken by contestant out of time, objected to by contestee and not 
 cross-examined, disclosed bribery and other frauds which demanded investigation, 
 the contestee was given leave to subpoena and cross-examine the witnesses whose 
 testimony had been taken and to take testimony of his own. 
 
 Page vs. Pirce, 49th Cong Mobley, 475 
 
 Where a contest was pending against the seat of the Speaker of the House, he 
 requested to be relieved of the duty of appointing the Committee on Elections. It 
 was proposed that a select committee be appointed, to which the case of the 
 Speaker should be referred; but the former plan was adopted, and the Committee 
 on Elections was elected by the House. 
 
 Thoebe vs. Carlisle, 50th, Cong Journal 50th Cong., 1st sess., pp. 44, 49 
 
MODE OF PROCEDURE. 775 
 
 Where a contestant was assassinated while in process of taking testimony, and it was 
 alleged in the newspapers and elsewhere that the assassination was the outgrowth 
 of the contest, or was in some way a "political assassination," the House passed a 
 resolution directing the chairman of the Committee on Elections to appoint a sub- 
 committee of five members to proceed to Arkansas if necessary and take testimony 
 '•in regard to the methods of said election, to the contest, and all events relating 
 thereto or arising therefrom after said election, and as to whether the contestant 
 or the contestee, or either of them, was lawfully elected." Acting under this reso- 
 lution the subcommittee took testimony in regard to the killing of the contestant 
 and various other murders and disturbances alleged to have been connected with 
 the election or contest, as well as in regard to the result of the election, and the 
 reports embraced a discussion of all these matters. It appearing from the testi- 
 mony that contestant had received a majority of the votes, the committee recom- 
 mended that on account of his death the seat be declared vacant. The House 
 concurred. 
 
 Clayton vs. Breckinridge, Slst Cong Rowell, 679-781 
 
 Where certificates in due form had been presented by two candidates, and the clerk 
 of the House, before the second certificate was received, had placed on the roll the 
 name of the candidate declared elected in the certificate first issued and filed, 
 the clerk refused to strike the name from the roll, "having already exercised 
 the authority given to him by law," and submitted the matter to the House at the 
 opening of the session. When the name of the certified member on the roll was 
 reached, he was requested to stand aside. Motions were made and rejected to seat 
 each claimant. The matter was finally referred to the Committee on Elections, 
 which reported in favor of seating the claimant first certified, the other claimant 
 to have the right to contest under the general law, except that the time should 
 begin with the date of the adoption of the resolution. The House concurred. 
 Belknap vs. Richardson, prima facie case, 5Sd Cong. 
 
 Where a contest growing out of a special election was necessarily begun too late to be 
 completed in the ordinary process of filing briefs, etc., under the law before the 
 date of final adjournment of Congress, the clerk of the House addressed a letter to 
 the Speaker calling attention to this fact. The case was then referred to the com- 
 mittee at once, and the next day a resolution was passed instructing the committee 
 to go on with the case. 
 Benoit vs. Boatner {2d case), 54th Cong. 
 
 A member-elect, accused of polygamy, was requested to step aside at the organization 
 of the House on the protest of a member, and a special committee was appointed 
 to consider both the prima facie and final right to the seat. The committee reported 
 in favor of excluding him by resolution, and the House concurred. 
 
 Roberts, S6th Cong Report 85 
 
 NATTTBALIZATION. 
 
 Papers illegally issued; votes deducted. 
 The votes of persons voting on illegally issued naturalization papers were deducted. 
 Van Wyckvs. Greene, 4ist Cong _ 2 Bart., 631-660 
 
 A certificate of naturalization improperly issued is void. 
 
 Cannon vs. Campbell (Mr. Thompson), 47th Cong 2 Ells., 618 
 
 Can not be attacked in collateral proceeding. 
 Where the testimony showed that a voter had procured his naturalization papers by 
 fraud the committee refused to reject his vote, on the ground that naturalization 
 papers issued by a court of competent jurisdiction "can not be attacked in a col- 
 lateral proceeding." The minority held that the vote should be rejected. (See 
 McOrary, 2d ed., sec. 21. ) 
 
 Wiggington vs. Pacheco, 46th Cong 1 Ells., 16, 47 
 
 A certificate of naturalization duly issued by a court of competent jurisdiction can 
 not be attacked in a collateral proceeding. 
 
 Canncm vs. Campbell ( Mr. Calkins) , 47th Cong 2 Ells. , 610 
 
776 DIGEST OP CONTESTED ELECTION OASES. 
 
 Must be granted by judge, but witnesses may be examined by clerk. 
 The judicial function of deciding whether an alien has proved his claim to be 
 admitted to citizenship belongs to the judge only; but the execution of the certifi- 
 cate, swearing of witnesses, and the like are ministerial functions, which may 
 properly be exercised by the clerk of the court. Witnesses may be examined by 
 the clerk, if in the presence of the judge. 
 
 Campbell vs. Morey, 4Slh Cong Mobley, 229 
 
 Must be established by the record. 
 Naturahzation, being a solemn judicial proceeding of a court of record, must be estab- 
 lished by the record, and in the absence of any record parol testimony is inadmis- 
 sible. 
 
 Lowry vs. White, 50th Con.g Mobley, 625 
 
 Informality in record immaterial. 
 A citizen duly naturalised before a competent court can not be deprived of citizen- 
 ship because of informality in the record. 
 
 Cannon vs. Campbell {Mr. Calkins), 47th Cong 2 Ells., 610 
 
 May be proved by parol testimony. 
 Where the officers of the court were derelict in their duty and failed to enter of record 
 the naturalization of a person, the fact of naturalization may be established by 
 parol testimony. 
 
 Lowry vs. White {minority report) , 50th Cong _ ilobley, 641 
 
 Failure to record immaterial. 
 When an applicant for naturalization does all that is required of him by law and has 
 obtained his certificate of naturalization in due form, he is from that time vested 
 with citizenship without regard to any further act to be performed by the officers 
 of the court. 
 
 Lowry vs. White {minority report), 50th Cong Mobley, 641 
 
 Issue of certificate makes a record. 
 ' ' The making out of a certificate of naturalization, reciting all the requisite facts, under 
 the seal of the court, is an entry of record of. the proceedings, even though that 
 certificate is carried away from the court instead of being left with the clerk." 
 iMwry vs. White {minority report), 50th Cong Mobley, 641 
 
 May be conferred by county court in a Territory. 
 Under the act of April 14, 1802, providing that naturalization might be conferred by the 
 "supreme, superior, district, or circuit court of some one of the States, or of the 
 Territorial jurisdictions of the United States, or a circuit or district court of the 
 United States," and the later section of the same act declaring "that every court 
 of record, in any individual State, having common4aw jurisdiction, and a seal, and 
 clerk or prothonotary, shall be considered as a district court within the meaning of 
 this act," held, that a county court of Michigan Territory coming within the above 
 description, except in being in a Territory instead of a" State, was empowered to 
 grant naturalization. The latter section above quoted was held to be merely 
 declaratory of what should be understood by the term " district court." 
 
 Biddle vs. Richard, ISlhCong C. and H., 408,409 
 
 Conferred by county court. 
 The county courts in Iowa have jurisdiction to grant naturalization papers. 
 
 Frederick vs. Wilson, 48th Cong Mobley, 405 
 
 In Florida certificates must be presented to election ofiScers. 
 Where the law requires foreign-born ]>er,sons to present their naturalization certificate 
 
 or declaration of intention before being allowed to vote, held, that votes received 
 
 without the production of such evideiu'e should be rejected. 
 
 Bisbee vs. Fiidci/, 47th Cong : ; 2 Ells., 175 
 
 Contrary authorities quoted in minority report lb., 238 
 
NOTICE OP CONTEST. 777 
 
 BTOTARY. 
 
 See Evidence, before wrong officer, and Waiver. 
 
 NOTICE or CONTEST 
 
 Service of. 
 
 Allegations must be made within the time reqnired by State law, if that law be 
 followed. 
 Where the testimony was taken by both parties under the lav^r of Virginia (there 
 being no law of Congress in force), and the allegation that the officers in one pre- 
 cinct were not sworn was not made within the time required by the Virginia law, 
 the committee refused to consider it. The minority held that reasonable notice 
 having been given, the testimony should be considered. 
 
 Botts vs. Jonei!, SSth Cong 1 Bart., 77, and report 5S0, Isl sess. gSlh Cong. 
 
 Time in which service may be made. 
 The law of Ohio provided that the result should be determined "within ten days 
 after the 1st day of December;" but there was no provision for proclamation or 
 other notice to anyone on which day within this limit the determination was made. 
 The committee held that the thirty days within which notice of contest must be 
 served commenced to run on December 10, unless knowledge was brought hi)me 
 to the contestant of a determination on an earlier day. 
 
 Folleitya. Delano, 39lh Cong ., 2 Bart., 116. 
 
 If not served within the time, testimony taken under inadmissible. 
 Where a second notice of contest was served, if at all, after the legal time had expired, 
 and there was no evidence except the certificate of a deputy sheriff that it had 
 been served at all, the committee excluded this notice and the testimony offered 
 under it. 
 
 Boyd\s. Kelso, 39th Cong 2 Bart., 122 
 
 Two may be served, if both within the time. 
 "More than one notice may be served under the act of 1851, provided they shall be 
 served within the time required by that act, and they may be treated as one notice, 
 or as supplemental notices, or the contestant may, with notice to the opposite 
 party, withdraw an insufficient notice and serve a sufficient notice in place thereof. 
 All the act of 1851 contemplates is fair notice of the subject-matter of contest within 
 the time specified by the act itself." 
 
 Daily vs. Estabrook, 36th Cong 1 Bart., 304 
 
 Must be personally served on contestee. 
 Under the law of 1851, providing that contestant should "give notice in writing," the 
 committee held that contestee was entitled to personal notice,' and that service by 
 leaving it at his house was not sufficient. 
 
 Follett Y8. Delano, 39th Cong '2 Bart., 115 
 
 Served by leaving at home of contestee. 
 The service of notice of contest by leaving the same at the home of the contestee, he 
 being absent from the Territory, within the time prescribed by the statute, was 
 ample service. 
 Manzanares vs. Luna, 48th Cong _ .Mobley, 61 
 
 Not proved by ex parte affidavit. 
 Where contestee does not by his answer admit the service of the notice of contest or 
 waive proof of it, the fact of service should be proved by deposition, and not by 
 ex parte affidavit. 
 Follett ya. Delano, S9th Cong 2 Bart., 115 
 
778 DIGEST OF CONTESTED ELECTION CASES. 
 
 Not Buffioiently proved by ex parte affidavit. 
 
 Under the decisions in FoUettra. Delano and Boyd vs. Kelso it is a valid objection to 
 testimony taken in behalf of contestee that there is no proof of the service of the 
 answer to the notice of contest except an ex parte affidavit. But the committee 
 waived this point as too technical. 
 
 Cooh vs. Cutts, 47th Cong 2 Ells., 25] 
 
 Within thirty days after result proclaimed. 
 
 The returns were first canvassed by the secretary of state, in the presence of the 
 acting governor, on December 14, 1872, but no proclamation of the result was made 
 or certificate issued until February 18, 1873, when proclamation was made by the 
 new governor. Notice of contest was served March 13, 1873, and the committee 
 held that it was served within the thirty days. 
 
 Qunter vs. Wilshire, 43d Cong ■. Smith, 234, 235 
 
 Right to amend doubtful. 
 
 Where,contestant, within the time, had served an amended or additional notice of 
 contest, the committee said: "The right of the contestant to serve amended speci- 
 fications in the case is doubtful and is not here passed upon, but the amended 
 specifications are considered the same as if served with the original notice of 
 contest." 
 
 McDuffie vs. Turpin, SZd Cong Stofer, 55 
 
 "An intelligent and intelligible notice in writing, actually in the hands of contestee." 
 
 Notice of contest in writing was sent contestee by registered mail and reached him 
 in time. " That the notice was in writing and that it reached the proper party are 
 sufficient for this committee to hold the contestee to the necessity of his answer 
 and proofs. In all such cases the rules as to service may naturally be somewhat 
 flexible, according to the circumstances, provided that no clear right be thereby 
 denied or infringed. An intelligent and mtelligible notice in writing, actually in 
 the hands of a contestee within the thirty days established by statute, ought to be 
 iufficient." 
 
 Wilson vs. McLaurin, S4th Cong Report 1566 
 
 SUPI'K'IENCY OP. 
 
 Petition should be specific. 
 
 A petition of contest ought to state the grounds of objection to the sitting member 
 with such certainty as to allow the merits of the case to be fully tried. 
 
 Varnum, 4ih Cong C. and H., 112 
 
 Leib, 9th Cong C. and H. , 165 
 
 Should be certain and include all the charges. 
 
 "A petition against the election of any person returned as a member of the House of 
 Representatives ought to state the ground on which the election is contested with 
 such certainty as to give reasonable notice thereof to the sitting member and to 
 enable the House to judge whether the same be verified by the proof, and, if proved, 
 whether it be sufficient to vacate the seat; and the petitioner ought not to be per- 
 mitted to give evidence of any fact not substantially alleged in his petition." A 
 case not conforming to these requirements was dismissed. 
 Leib, 9th Cong C. and H., 165 
 
 Should put contestee on notice and prevent surprise. 
 
 "Much discussion has arisen as to what is to be understood by the words, 'shall 
 specify particularly the grounds of contest on which he relies.' It may be doubted 
 whether any deiinition can be formulated which will accurately fix the limits of 
 these words so as to determine by such definition whether the ground of contest 
 is in substantial conformity to the statute or not. It is evident that it was the pur- 
 pose of the framera of the law to require the a\-enuents in the notice of contest to 
 
NOTICE OF tJONTEST. V79 
 
 be as certain and definite as the facts of the caae would permit. The notice ought 
 to be sufficiently specific as to the time, place, and nature of the charge to put the 
 returned member on notice and enable him to prepare his defense and thus pre- 
 vent any surprise." 
 
 Abboll vs. Frost {minority report), 44th Cong Smith, 626 
 
 Substantial compliance with the law should at least be required. 
 Where a notice of contest consisted merely of vague and general charges of bribery, 
 undue influence, and illegal voting, the committee held that it was clearly insuffi- 
 cient under the statute. "While it is true that this statute should receive aliberal 
 construction, yet it will not do to permit parties to disregard its provisions. The 
 House, in sanctioning its violation m cases heretofore determined, has created 
 precedents that are now frequently and pertinently cited to justify similar infrac- 
 tions. This practice, if tolerated, will finally result in the virtual abrogation of 
 the statute. The only safe course to pursue is to require at least a substantial 
 compliance with its provisions." But the coutestee, in an agreement in regard to 
 taking testimony, had expressly waived his objections. "If these defects had not 
 been waived we should feel fully justified, by reason of the insufficiency of the 
 notice, in dismissing this case or excluding the evidence offered in support of 
 the alleged grounds of contest, but in view of this waiver wo are compelled to 
 examine the evidence and determine the merits of this contest. 
 
 Duffy vs. Mason, 46th Cong 1 Ells., 3G3 
 
 A general allegation applies to each particular precinct. 
 A notice of contest was served in which the following specification was the only one 
 relied on: "That the returns made by the returning officers, as officially announced, 
 are incorrect, and that the poll books of the several counties in this district show 
 that I received a majority of the legal votes polled in the said district for the said 
 office, and am entitled to the certificate of election therefrom." Evidence was 
 introduced to show that a recount at one of the poll.s showe<J a ref3ult different 
 from the first count. The contestee objected to the notice as insufficient. The 
 committee held that the notice was sufficient to authorize an investigation of the 
 corret'tness of the returns in any of the precincts, as much as if each one had been 
 specifically mentioned. The minority held that the notice was insufficient, in that 
 it contained no particular specification of the grounds relied on. 
 
 Archer vs. Allen, S4th Cong 1 Bart, 170, 174 
 
 Where notice too vague to be good, contestant permitted to specify orally. 
 An allegation that "a recount of all the ballot boxes in said district at said election 
 will show that you were not elected, and that 1 was elected," was held by the 
 committee to be clearly insufficient, and> strongly condemned by them. But to 
 avoid all possibility of injustice, the contestant was permitted to specify orally 
 the grounds relied on, and the testimony was considered. 
 
 Kline vs. Verree, S7th Cong 1 Bart., 382 
 
 Where both notice and answer insufficient, neither party can object. 
 Where the pleadings of both contestant and contestee were vague and indefinite, the 
 committee strongly condemned them, but as neither party was in a condition to 
 except to the pleadings of the other, the committee considered the case as found in 
 the record. 
 
 KnoxYB. Blair, S8lh Cong 1 Bart, 523 
 
 Where names to be set forth. 
 The allegation that votes were given by proxy is sufficiently certain without setting 
 forth the names, but an allegation that votes were given by persons not qualified 
 to vote must set forth the names. 
 
 Varnum, 4lh Cong , C. and H., 113 
 
 Names of voters attacked need not be given. 
 Where the notice of contest alleged the reception of illegal votes at one poll, sufficient 
 in number to change the result of the election, and also specific irregularities com- 
 mitted at the same poll, the majority of the committee held that the notice 
 was sufficient without giving the names of the alleged illegal voters. The minority 
 
780 DIGEST OP CONTESTED ELECTION CASES. 
 
 held that the names should have been given, and also that it should have been 
 alleged more particularly by whom, and in what manner, the irregularities were 
 committed. On the whole case the House substantially adopted the conclusion of 
 the minority^ but the case turned on other issues. 
 
 Wright vs. Fuller, 3£d Cong 1 Bart., 154, 161 
 
 The committee held that allegations that in specified precincts a specified number of 
 votes of persons who had elected to retain their Mexican citizenship under the 
 treaty stipulations had voted illegally for the contestee were sufficient without 
 giving the names of the voters objected to. 
 
 Otero vs. Oallegos, S4th Cong 1 Bart., 178 
 
 The names of the voters objected to need not be set out in the notice of contest; it 
 is sufficient to designate them by the class to which they belong, as minors, aliens, 
 etc. This is especially true, as under the law (of 18.51)" each party is required to 
 give ten days' notice of the names of the witnesses to be examined. 
 
 Vallandighani vs. Campbell, SSth Cong 1 Bart., 229 
 
 Names of voters and disqualification claimed mnst be given. 
 Where the ground relied on is the admission or exclusion of voters, the only way in 
 which this ground can be particularly specified is by naming the voter and the 
 legal objection to his admission or exclusion. 
 
 Vallandigham vs. Campbell {minority report), 35th Cong 1 Bart., 236 
 
 Facts in whicli illegality of votes alleged to consist should be specified. 
 The minority held that allegations that in specified precincts a specified number of 
 illegal votes had been cast for contestee were insufficient. It should at least have 
 been specified what the specific facts were in which the alleged illegality consisted. 
 
 Delano vs. Morgan {minority report), 40th Cong 2 Bart., 176 
 
 Vague and general allegations insuf&cient. 
 
 Where votes were asked to be rejected for bribery, the minority held that the notice 
 
 should have specified the number of votes charged, and when, where, and for 
 
 whom they had voted. It was fatally defective in merely charging "many votes," 
 
 and that they were cast ' ' in the said Congressional district. ' ' 
 
 Abbott vs. Frost {minority report), 44th Cong .-Smith, 626 
 
 Allegation liberally constrned. 
 An allegation that the votes cast for contestant in a precinct were illegal by reason of 
 nonregistration is broad enough to permit the whole poll to be rejected if it appear 
 that there was no legal registry. 
 
 Loioe vs. Wheeler { minority report) , 47th Cong 2 Ells. , 144 
 
 Specific allegation of false counting sufficient. 
 Where the notice of contest alleged that in certain specified precincts the judges of 
 election fraudulently counted for contestee votes cast for contestant, it was held to 
 be sufficiently specific. 
 McDuffie vs. Davidson, 50th Cong Mobley, .578 
 
 Evidence under somewhat general allegation received. 
 The committee allowed contestee certain votes proved to have been illegally rejected, 
 but not otherwise included in the answer to the notice of contest than by an alle- 
 gation that "njimy other votes" were thus lost in addition to those specified. But 
 on the same principle they also allowed contestant a few such votes, in regard to 
 which the evidence was all taken during the time for rebuttal, considering the e\-i- 
 dence as being in rebuttal of that above allowed for contestee. The minority held 
 that these last votes should not be counted, the testimony being evidence in chief 
 taken in time for rebuttal. 
 
 Mudd vs. Cunipton, 51st Cong Rowell, 153, 168 
 
NOTICE OF CONTEST. 781 
 
 Vague notice disapproved, but case heard upon merits. 
 Where contestant sought to impeach the title of contestee by a general allegation of 
 " fraud in the election, and bribery, intimidation, and corruption of voters * * * 
 in every election district in the Twelfth Congressional district of Pennsylvania," 
 "the committee took no formal action upon the exceptions filed to the notice of con- 
 test, nor pronounced their decision upon it. But we are of opinion that the notice 
 of contest, in its various charges upon which there was any testimony, is too vague 
 and indefinite, and does not conform to the act of Congress referred." The com- 
 mittee, however, heard the whole ease upon its merits. 
 
 Reynolds vs. Shonk, SSd Cong Stofer, 50 
 
 Liberal constrnotiou favored. 
 
 Where the answer to the notice of contest was one or two days late, and some of the 
 specifications in the notice of contest were objected to, the committee said: "We 
 believe, however, that the real question to be determined is not so much whether 
 this or that bit of evidence offered by contestant certainly relates to something 
 clearly specified in his notice of contest as a ground upon which he relies, nor yet 
 whether the contestee' s answer and countercharge were made in due time, but 
 rather which of the two claimants, according to the record, was really elected and 
 is really entitled to a seat in the House of Eepresentatives." 
 
 Moore vs. Funston, SSd Cong Report 1164, p. 2 
 
 Leave to amend refused, when testimony already considered and fonnd insufficient. 
 
 Contestant had not included all the precincts in his notice of contest which he desired 
 to have rejected, and a resolution was introduced in the House and referred to the 
 committee giving him leave to amend the notice so as to cover them, but as the 
 committee had considered all the evidence as if the notice had covered it, and had 
 still found contestant's case not made out, they presented an adverse report on the 
 resolution. 
 
 Rosenthal vs. Crowley, 54th Cong Report 197 
 
 Number of votes charged falsely counted, sufficient. 
 
 A notice of contest charging that at specified precincts a specified number of the 
 votes returned were in fact not cast was held to be sufficiently definite. 
 Aldrich vs. Robbins, 54th Coiig Report 572 
 
 Binding foece of. 
 
 Issues not raised in tbe notice not considered. 
 
 Where, in conducting a recount of ballots, a precinct was accidentally recounted, 
 
 which was not mentioned in the notice of contest, and an error of 5 votes was 
 
 found, the committee unanimously refused to consider the recount of this precinct. 
 
 Butler vs. Lehman, 37th Cong 1 Bart., 356 
 
 When the issues are made, the inquiries of the committee "should be directed solely 
 to the determining of those issues, as presented by the parties, and to the consider- 
 ation bf such testimony only as should be found pertinent to sustain them as in 
 proceedings at law." 
 
 Buller vs. Lehman {minority report, sustained by House), S7ih Cong 1 Bart., 358 
 
 Foils not excluded unless specifically demanded in notice. 
 
 Where there were frauds and illegalities sufficient, in the opinion of the committee, 
 to throw out the entire vote of two precincts, but the contestant did not specifically 
 demand their rejection in the notice of contest, the committee did not recommend 
 their rejection. 
 
 Van Wyck vs. Greene, 41st Cong 2 Bart., 646 
 
782 DIGEST OP CONTESTED ELECTION CASES. 
 
 Testimony under insnfficieut allegations not considered, 
 Where general charges of illegal voting and undue influence were made against the 
 vote of a county, but they were in form "too vague and uncertain to be good," 
 the testimony taken was rejected, partly on this ground (the other ground being 
 that it was testimony in chief taken during the time for rebuttal). 
 
 Bromberg vs. Haralson, 44ih Cong Smith, 364 
 
 Parties must be bound by pleadings. 
 Where the contestant in his notice claimed that 400 votes in a precinct casting only 
 424 votes were illegal, but on the hearing of the case before the committee asked 
 that the whole precinct be thrown out for fraud, the minority held that it was too 
 late to make the charge of fraud. 
 
 Knox vs. Blair {minority report), SSih Cong 1 Bart, 536 
 
 Where contestant asked that precincts be thrown out because the election officers 
 were not sworn, but contestee objected that no such charge was made in the notice 
 of contest, the committee were of the opinion that the objection was well taken. 
 "The language of the statute is specific and admits of but one construction. The 
 grounds of the contest, which are to be insisted upon, must be stated in the notice. 
 This, of course, is to the end that the contestee may be fully advised of the 
 nature of the case which he has to meet. The notice is the only pleading required 
 of contestant; it is the foundation upon which the whole proceeding rests, and if 
 the contestant could introduce one new cause of contest not mentioned therein, h 
 could introduce any number, and the contestee could never know in advance of 
 the taking of the testimony what issues are to be tried. When we add to this the 
 consideration that the time for taking testimony in these cases is, as compared 
 with ordinary litigation of equal importance in the courts of the country, necessa- 
 rily brief, and that if a contestant may go outside of his notice at all he may do so 
 just before the time for taking testimony expires, and thus cut off his adversary 
 from the privilege of taking rebutting testimony, the great importance of adhering 
 to the law will be apparent to all." 
 Barnes vs. Adams, 41st Cong 2 Bart., 764 
 
 Where the contestant had attacked several precincts on the ground that the ballots 
 were numbered, the committee considered the testimony only in regard to those 
 precincts mentioned in the notice of contest. 
 McKenzie vs. Braxton, 4^d Cong Smith, 24 
 
 Where the contestant objected to the legality of the election at several precincts on 
 grounds different from those specified in the notice of contest, it was held that "the 
 objection now urged is not open to him " ( but it was also held not to be sufficient 
 if it were open). 
 
 Cause vs. Hodges, 43d Cong , Smith, 300 
 
 Where the contestant in his notice of contest asked that a poll be excluded for speci- 
 fied irregularities, but took testimony to show fraud also, the minority held that 
 the testimony not bearing on the issue raised in the notice ought not to be con- 
 sidered. But on examination it was also held to be msufficient to sustain the charges. 
 Abbott vs. Frost (minority report), 44th Cong Smith, 628 
 
 Where a notice of contest was plamly insufficient, it was held that had the objections 
 
 been pressed and relied on they would have been sustained. But fearing that 
 
 injustice might otherwise be done, the committee examined into the merits ot the 
 
 case. 
 
 Boynton vs. Loring, 48th Cong 1 Ells. , 347 
 
 Depositions in regard to precincts not meijtioned in the notice of contest, or upon 
 issues not raised by it, were held to be inadmissible. 
 Stovell vs. Cabell, 47th Cong 2 Ells., 668 
 
 Where the notice of contest fails to specify as grounds of contest acts and omissions 
 which contestant afterwards asks leave to prove, evidence establishing them would 
 not be competent, even if the case were reopened. 
 
 Thobe vs. Carlisle, BOth Cong ,Mobley, 525 
 
NOTICE OF CONTEST. 783 
 
 Testimony in regard to precincts not mentioned in tiie notice of contest should not 
 be considered. 
 Smalls vs. Elliott, 60th Cong Mobley, 670 
 
 The minority refused to reject an unsigned and uncertified return on the ground 
 that it was not attacked in the notice of contest. 
 Langston vs. Venable {minority report), 51st Gong Rowell, 483 
 
 Charges not mentioned in, investigated by consent of sitting member. 
 Where, in the discussion of a case in Congress, charges were made not contained in 
 the petition of contest, and the sitting member expressed a desire to have them 
 investigated, the case was recommitted to the committee with instructions to 
 investigate the new charges. 
 
 Key, 10th Cong C. and H., 228-231 
 
 Where petition plainly insufficient, the committee nevertheless examined the testi- 
 mony. 
 Where (at a time when there was no law of Congress for taking testimony) the alle- 
 gations of petitioner were so general and indefinite as to be manifestly insufficient, 
 the committee " chose to go into an examination of the documents * * * with 
 a view of presenting to the House the true grounds of controversy." 
 Arnold vs. Lea, Slst Cong C. and H., 601 
 
 Where notice insufficient, testimony to be examined to determine right of coutestee. 
 Where a notice of contest was so vague as to be clearly insufficient, the committee 
 nevertheless proceeded to the examination of the testimony, "for if the testimony 
 taken in the case develops the fact that the sitting member was not elected, it 
 would be our duty to so report, although the contestant might not be entitled to 
 his seat, having failed to comply with the law with respect to the sufficiency of his 
 notice." The committee were unanimous on this point. 
 
 Buchanan vs. Manning, 47lh Cong 2 Ells. , 290, 300 
 
 Recitals of notice not to be construed as concessions. 
 The recitals in the notice can have none of the sanctity and binding force of an 
 agreement or stipulation, and can not be construed into a concession. 
 
 Featherston vs. Cate, 51st Cong Rowell, 122 
 
 Answer to. 
 
 Where no answer served, no counter charges can be relied on. 
 Where contestee had served no answer to the notice of contest, the committee sus- 
 tained the objection of contestant that he "can not set up in the evidence any 
 matter by way of defense to the charges of the contestant, except such as may 
 tend to negative the charges." 
 ' Whittlesey vs. McKemie, 41st Cong '. 2 Bart., 752 
 
 Charge not made in ; evidence considered. 
 The sitting member asked that the vote of a precinct be thrown out for violence and 
 intimidation. There was no allegation covenng this point in the answer to the 
 notice of contest, but the committee waived this point and examined the evidence, 
 which was found to be insufficient to establish the charge. 
 
 Niblack vs. Walls, 42d Cong Smith, 105 
 
 Failure to serve answer not a confession of election of contestant. 
 Where one party to a case in which neither party had a prima facie right had, within 
 the legal time, served a notice of contest on the other, to which no answer had 
 been returned, his case was held to be no stronger than it would have been if no 
 one were contesting his right and the committee had been instructed to inquire 
 whether he was elected. 
 
 Sheridan vs. Finchback, 43d Cong Smith, 198 
 
784 DIGEST OF CONTESTED ELECTION CASES. 
 
 Parties should be bound by pleadings, 
 A point not raised in the answer to the notice of contest, and claimed for tlje first 
 time on the argument, held to have come too late to be considered. 
 
 Flnley Ys: Walls, 44th Cong Smith, 390 
 
 Where contestee asked to have certain votes thrown out under a charge not contained 
 in his answer, the committee said: "There is no allegation in the answer that can, 
 under any rule of pleading known to your committee, be construed so as'to admit 
 such evidence. We are disposed to extend the rule in this case as far as possible, 
 in order to let in all the evidence, but when there is a total failure to plea^, as in 
 the case here, we can not consider the evidence in determining a fact which tends 
 to change the vote of either candidate. Your committee will say, however, that 
 the proof on this point whollj' fails to sustain such an allegation were it averred." 
 Mnley vs. Bisbee, 4Mli Cong 1 Ells., 101 
 
 NOTICE OP ELECTION. (See also Vacancy.) 
 
 When time fixed by law, voters may take notice. 
 "The law is well settled that where the time and place for holding an election are 
 fixed by statute any voter has a right to take notice of the law, and to deposit his 
 ballot at the time and place appointed, notwithstanding the officer whose duty it 
 is to give notice of the election has failed in that duty." 
 
 Patterson vs. Belford, 45th Cong 1 Ells., 54 
 
 No notice necessary, when time fixed by law. 
 " When the time and places of holding an election are fixed by law, no notice by the 
 officials is essential." 
 Strohach vs. Herbert, 47th Cong _ 2 Ells., 6 
 
 Failure to give notice of election not fatal. 
 Where the sheriff, without fraud, failed to notify two towns of a second election, and 
 it did not appear that the votes of these towns could have changed the result, the 
 election was held not to be invalidated; and it subsequently appearing that the 
 votes of the two towns might have changed the result, but probably would not, the 
 former decision was adhered to. 
 Lyon vs. Sinilh, 4th Cong C. and H., 101, 110 
 
 NOTICES TO TAKE TESTIMONY. 
 
 See Evidence, Notices to Take. 
 
 OATHS of election officers. 
 
 See Officers of Election. 
 
 OFFICE, disqualifying. 
 
 See Qu.\i.iFicATioNS of Representatives. 
 
 OFFICERS OF ELECTION. 
 
 Presumption in Favor of Acrs of. 
 
 Fraud not to be presumed. 
 " In the absence of anytning to rebut it, the presumption must be in favor of the cor- 
 rectness of the record kept by the officers of the election and of their return. 
 'Fraud is not to be presumed' is a maxim not only of law, but of common justice. 
 The means of knowledge, the facilities for accuracy, the impossibility of inattention, 
 and the~ responsibilities connected with the failure to discharge their duty all unite 
 to secure a credence to the acts of the officers which can not be justly accorded to 
 the acts of others." 
 
 Littell vs. RobUns, Slsl Cong 1 Bart.. 140 
 
OFFICERS OF ELECTION. 785 
 
 Their decision upon qualifioEttions of voter final, when election by ballot. 
 Where the election is by ballot the voter can not be compelled to disclose for whom 
 he voted, and it would be vain to inquire into his qualifications with a view to 
 purging the polls. The decision of the officers of election must be taken as final, 
 and if they exercise their authority improperly the remedy is in their punishment 
 under State laws. 
 
 Easton vs. Scott (committee overruled by House), 14th Cong C. and H., 276 
 
 Their decision upon sufficiency of affidavit in Iowa final. 
 Under the Iowa law requiring the presentation of an affidavit by an unregistered 
 voter the decision of the election judges upon the sufficiency of that affidavit is 
 final, and the vote can only be thrown out on a contest by proof that the voter was 
 not in fact qualified. "The judges of election have no power to pass upon the 
 legal and essential qualifications of the elector; * * * but as to whether the 
 affidavits comply with the sta,tute * * * is a matter addressed to their judg- 
 ment, and when that judgment has allowed and received the vote it is final. The 
 proof has been sufficient to justify the reception of the ballot, and henceforward 
 the only question that can be raised must relate to the essential qualifications of 
 the voter. Of course it is not necessary to add that this proposition may be modi- 
 fied by the proviso that the paper offered as an affidavit is intended as such in 
 good faith and is not palpably an evasion or subterfuge." 
 ' Campbell vs. Weaver, 49th Cong Mobley, 464 
 
 Where the location of the polls is in their discretion, their decision is final. 
 The laws of Maryland vested in the judges of the election the power of locating the 
 polls "at such places in the several wards as they shall in their discretion deem con- 
 vient for holding the same." The minority (whose conclusions were substantially 
 adopted by the House ) held that " it is not the province of the committee to dispute 
 with the judges the question qf a convenient location." 
 
 Whyte vs. Harris {minority report) , S6th Cong Report 538, p. 44 
 
 May use their own discretion as to the manner of rejecting an illegal vote. 
 
 Where certain persons not entitled to vote were around the polls, intoxicated and 
 
 raising a disturbance, and the judges of election, to avoid trouble, pretended to 
 
 receive their votes, but threw them on the floor, it was held that "the judges had 
 
 authority to do as they did, and that the mode in which they shall reject a vote 
 
 . known to them to be illegal is in their discretion." 
 
 Whyte vs. Harris [minority report) , S6th Cong Report 538, p. 46 
 
 Presumed to have acted under the law. 
 Where the law provided that the justice of the peace, if present, should preside at 
 the election, and another person appeared to have piesided, the committee pre- 
 sumed that the justice was absent and the other person had acted under the pro- 
 vision of the law for the case of the absence of the justice. 
 
 Easton vs. Scoll, 14lh Cong C. and H., 280 
 
 It is presumed that the officers of election did their duty. 
 
 Frost vs. Metcalfe, 45th Cong 1 Ells., 290 
 
 "The presumption that the sworn officers of the law have done their duty must 
 obtain until the contrary clearly appears." 
 Boynton vs. Loring, 46th Cong I Ells., 350 
 
 "The presumption of law is that the officers charged with the duty of ascertaining 
 and declaring the result of the election have faithfully performed their duty." 
 McDuffie vs. Davidson, 50th Cong Mobley, 581 
 
 Best judges where inspection of the ballot necessary. 
 The inspectors of election, from the nature of their position, must be presumed to be 
 more competent to decide a question which must be decided from an inspection of 
 the ballot than any other persons could be, and the committee are not inclined to 
 interfere with their decisions. 
 
 Adams vs. Wilson, 18th Cong : C. and H. , 375 
 
 H. Doc. 510 50 
 
786 DIGEST OF CONTESTED ELECTION CASES. 
 
 Disqualification of (and see Not Sworn). 
 
 If disqualified, fatal to the election. 
 
 Under the law of ( jeorgia requiring tiiree magistrates to preside at elections, held 
 that a return by three persons, two of whom were not magistrates, was defective. 
 
 Jackson vs. Wayne, ,hl Cong C. and H., 47 
 
 If officers of election not legally qualified, votes received by them void. 
 
 The sheriff was required to ofjcn the polls "by 10 o'clock," and he was empowered, 
 in case either of the judges appointed by the county court did not appear, to appoint 
 suitable persons to act in their stead. In one county a sheriff opened the polls at 
 9 o'clock, and one of the judges declining to serve and the other not having 
 appeared, appointed others to take their places. About 10 o'clock the absent judge 
 appeared and took his place, the one appointed by the sheriff giving way to him. 
 The committee rejected all the votes given up to the time the regularly appointed 
 judge appeared, although all but two or three of them were proved to have been 
 cast by qualified voters, holding, "It is unnecessary to inquire whether the per- 
 sons thus voting were qualified and. entitled to vote, if the officers or persons 
 presiding were not qualified to hold the election and receive the votes. The 
 State has the right to prescribe the manner of holding the election, and those 
 votes were not taken in the manner prescribed by the laws of Kentucky, and were 
 therefore illegally received." The minority held that informalities in the appoint- 
 ment or conduct of the officers not affecting the substance of the election should 
 not defeat the expressed choice of the people, and the House sustained the 
 minority. 
 
 Letcher vs. Moore, SSd Cong .- C. and H., 754^-757, 814-824, 844 
 
 The law prescribed that the voters should, "in presence of said judges and the 
 sheriff, vote personally and publicly viva voce." In one county the sheriff was 
 called away by the sudden illness of his wife, and the deputy sheriff being absent, 
 the duty of crying the votes, which the sheriff had been performing, was per- 
 formed by other persons for about three hours, until the arrival of the deputy 
 sheriff. 'The committee rejected all votes taken during the absence of the sheriff; 
 but the minority reported that inasmuch as they were proved to have been cast 
 by legal voters they should be counted, and the House sustained the minority. 
 
 Lelcher vs. Moore, ^Sd Cong C. and H., 754-757, 814-824, 844 
 
 Where three required and only two served, returns rejected. 
 
 Where the law required that the board of election inspectors should be constituted of 
 three persons and there were but two, the poll was rejected. "As there was no 
 board of inspectors known to the law, your committee see no way by which any 
 legal effect can be given to the returned vote." 
 
 Howard vs. Cooper, 36th Cong 1 Bart, 282 
 
 Only one acted, election void. 
 On a prima facie case, where only one judge appeared to have been appointed, or 
 sworn, or acted, the law expressly requiring three, the committee were unanimous 
 in holding the return to be invalid. 
 
 Koontz vs. Coffrolh (prima facie case), 39th Cong 2 Bart., 32 
 
 Two out of three disqualified, election void. 
 The military election law of Pennsylvania, as interpreted by the committee, per- 
 mitted all officers in the Volunteer Army to act as judges of election. AVhere two 
 of the judges were officers in the Kegular Army the committee rejected the votes 
 received by them. 
 
 Fuller vs. Dawson, 39th Cong 2 Bart, 136 
 
 If officers disqualified, election void. 
 The committee at first declined to decide whether polls at which returned rebels, 
 not authorized to act under the laws of Kentucky, acted as election officers should 
 be rejected or not. Afterwards, the case having been recommitted by the House, 
 
OFFICERS OF ELECTION. 787 
 
 it was decided that tlie polls should be rejected. "It has long been held that if 
 the officers of election are not capable of holding the office, the election has no 
 more validity than would an election where no officero whatever were appointed. 
 It is otherwise where persons capable of holding the office are appointed, although 
 they may not have complied with the forms of the law." The latter report was 
 sustained by the House. 
 
 McKee vs. Yminq, 40th Cong 2 Bart., 431, 460 
 
 Where one judge disqualified, election void. 
 Where one of the judges wag a deserter, and hence not an elector and not competent 
 to act, the committee rejected the return. "If a return is untrustworthy when 
 one of the judges is absent, it is certainly more so if the vacancy is filled by a 
 person disqualified to act. Two competent judges are certainly more reliable when 
 acting by themselves than when advised, directed, and in part overruled by a 
 third, pronounced by the law unfit for the trust." 
 
 Delano vs. Morgan, 40th Cong 2 Bart., 171 
 
 Where one member of county canvasaing board disqualified, whole vote of the county 
 thrown out. 
 
 Where the law required the county canvassing board to be composed of the county 
 auditor and two justices of the peace (a majority to have power to act) , lield that 
 when the board was composed of the auditor, one justice of the peace, and the 
 probate judge it was illegally constituted, its returns must be rejected, and the 
 vote thrown out. 
 
 Donnelly vs. Washburn {majority report) , 46th Cong 1 Ells. , 463 
 
 Must be coexistent with the election to affect its validity. 
 Where no certificate of the election of one of the inspectors was transmitted as 
 required by law, the committee unanimously held that the election was not vitiated . 
 " It was not necessary that a certificate of the election of the inspector should have 
 been transmitted to the clerk of common pleas either before or during the elec- 
 tion; and the omission to do so afterwards can not have a retrospective effect to 
 defeat the will of the people expressed in conformity with law. The disqualifica- 
 tion of an officer, to affect the legality of an election, must evidently be coexistent 
 with the election." 
 
 New Jersey case, f8th Cong 1 Bart., 30 
 
 Only part of officers served, election not vitiated. 
 Where "certain of the judges, favorable to the contestant, did, apparently by pre- 
 concert, at an early hour of the day, and when it was apparent that their candi- 
 date was probably beaten, desert their duty and withdraw from the polls," the 
 committee held that the election was not affected. 
 
 Harrison vs. Davis, 36th Cong - 1 Bart., 345 
 
 Will not vitiate poll or return. 
 " Ineligibility or want of statutory qualification on the part of an officer of election, 
 otherwise capable, and acting in good faith, and with the acquiescence of the voting 
 public, will not of itself vitiate or impair the poll or return." 
 
 Gooding vs. Wilson {minority report), 4^d Cong Snuth, 85 
 
 Apparent disqualification of one member of a county canvassing board not fatal to 
 the canvass, 
 " It is hard to conceive ho w a mere ministerial board of officers can be rendered illegal 
 and all its acts declared to be void simply because one person does not sign him- 
 self as an attesting witness to a certificate annexed to an abstract by such designa- 
 tion as to show affirmatively that he was a proper officer to do so." 
 
 Donnelly vs. Washburn {minority report) , 46th Cong 1 Ells. , 512 
 
 Where appointed by electors present, under the law, their acts legal. 
 Where the electors present are empowered by law to elect officers of election, if for 
 any cause they are not regularly appointed, the acts of managers so elected are 
 legal. 
 SlrobachvB. Herbert, 47th Cong 2 Ells., 6 
 
788 DiaEST OB' CONTESTED ELECTION CASES. 
 
 One oat of three not acting or disqaalifled, immaterial. 
 
 Where only two managers acted, or where three acted, but only one was sworn, and 
 
 the returns had been rejected by the county canvassers, the committee counted 
 
 the V(jtes; l)ut where only one manager acted and he held the election in entire 
 
 disregard of the forma of law, they sustained the rejection of the return. 
 
 Smalls vs. Elliott, 60th Cong Mobley, 670 
 
 Former secessionists not permanently disqualified in Kentucky. 
 The statute of Kentucky, passed in 1862, declaring that adherents to the rebellion 
 should not be considered one of the political parties entitled to representation on 
 the election boards had reference to the secession party in existence-at the time 
 the act was passed. After that party had ceased to exist the persons who had 
 belonged to it were not disqualified from serving as members of other parties. 
 
 Barnes vs. Adams, 4-lst Cong 2 Bart., 762 
 
 Not fatal, in absence of frand. 
 Where the clerk was not a citizen of the United States, and the oath of the officers of 
 election was not returned, but there appeared to be no unfairness and there was 
 no evidence of fraud, the committee declined to reject the returns, but held that 
 these irregularities, if in connection with circumstances tending to show fraud, 
 might have compelled the rejection of the vote. 
 
 Finley vs. Walls, 44th Cong Smith, 377 
 
 Candidate serving as registrar, fatal to the election. 
 The law of North Carolina prohibited any candidate from acting as registrar or judge 
 of election. The committee rejected the return of a precinct on the ground that 
 the contestee had acted for a short time as registrar. The minority disagreed on 
 the ground that contestee had not acted as registrar, but had merely assisted in 
 checking off names in the presence of the duly appointed registrar. 
 
 Yeates vs. Martin, 46th Cong I Ells., 387, 406 
 
 Judge alleged to have been interes.ted in a wager. 
 Where it was alleged that one of the officers of election was disqualified bv being 
 interested in a wager on the result of the election, but the evidence showed that 
 he had withdrawn his interest in the bet on account of being appointed inspector, 
 and there was nothing to show any unfairness in the election, the committee 
 refused to reject the precinct. 
 
 Kidd vs. Steele, 49th Cong Mobley, 513 
 
 Law of Sontb Carolina requiring three managers, directory. 
 "If South Carolina had intended that an election held by less than three managers 
 should on that account be void, she would have said so in her statute. She did 
 not say so; hence the law fixing the number of managers is simply directory." 
 
 Smalls vs. Elliott {minority report), 50th Cong Mobley, 723 
 
 Be facto oiiicers; technical title will not be inquired into. 
 "The superintendents of a separate election, having been appointed by a court or 
 other tribunal having the general appointing power for chat purpose, which super- 
 intendents act as such, colore officii, no other person appearing or acting as conflict- 
 ing claimants for the office, the committee will not inquire whether they were 
 appointed at the particular term of the court contemplated by the act or whether 
 there was a 'vacancy' within the meaning of the law." 
 
 Draper vs. Johnston, SSd Cong C. and H., 712 
 
 Acts of officers de facto valid. 
 Where it was alleged that the election officers were elected at a meeting in April, 
 whereas they should have been elected in March, but no fraud was alleged, the 
 committee unanimously held that the persons officiating were officers de facto, act- 
 ing in good faith, and that the votes received by them were properly counted. 
 
 MiUiken vs. Fuller, 34th Cong 1 Bart., 177 
 
 Where there was evidence that the supervisor of electioii had been disloyal, and could 
 not truthfully take the oath required by the constitution of Missouri, but so far as 
 appeared he had taken it, the committee held that he was at least an officer de facto. 
 
OFFICERS OF ELECTIOK. 789 
 
 "whose acts are not to be questioned in a collateral proceeding, but only in some 
 proceeding bringing his title to the office directly in question." 
 
 Burch vs. Van Horn, 40th Cong 2 Bart. , 206 
 
 If all the election officers belonged to the same party, in violation of law, neverthe- 
 less, if they were regularly appointed, and held a fair election, they were at least 
 officers de facto, and the election should stand. Similarly with polls where some 
 of the officers were returned rebels, who were alleged to be disqualified. 
 
 ifcKee vs. Young [minority report), 40th Cong 2 Bart., 437 
 
 "It is well settled in law that so far as the public is concerned the acts of one who 
 
 claims to be a public officer, judicial or ministerial, under a show of title or color 
 
 of right, will be sustained. Such a person is an officer in fact, if not in law, and 
 
 innocent parties or the public will be protected in ao considering and trusting him." 
 
 Eggleston vs. Slrader, 41st Cong 2 Bart., 901 
 
 Where a registrar had been removed a short time before the election, but not having 
 been notified of his removal and his successor not having qualified or made any 
 attempt to assume the duties of the office, he had continued to exercise the duties 
 of the office and had certified the returns to the governor, who, with the other 
 officers comprising the State canvassing board, had rejected them on the ground 
 that "no official returns had been received," the committee held that he was at 
 least an officer de facto, whose official acts affecting third parties and the public 
 must be held valid. But in this case, the true result having been proved outside the 
 returns by the testimony of the officers of election, the vote must in any event be 
 counted, without regard to the validity of the certificate. 
 
 Giddings vs. Clark, 4~d Cong Smith, 94 
 
 Where it was objected that the majority of the election officers of a precinct were 
 "unofficial persons, not authorized by law" to act, but there was no evidence of 
 fraud or unfairness, the committee held that they were "ipso facto" officers and 
 refused to reject the returns. 
 
 Finley vs. Walls, 44lh Cong Smith, 390 
 
 Where part of the officers of election were not regularly chosen, but were de facto 
 officers, and there was nothing shown to impeach their action, it was held that 
 the poll was not vitiated by the irregularity of their appointment. 
 
 Cox vs. Strait, 44ih Cong Smith, 436 
 
 An election held by one regularly appointed inspector and one officer de facto acting 
 under color of authority, in the aljsence of fraud, is valid. 
 Smalls vs. Elliott [minority report), 50th Cong Mobley, 718, 722 
 
 It takes but little to constitute an officer de facto. 
 "It takes but little to constitute an officer de facto as affects the right of the public. 
 The exercise of apparent authority under color of right, thus inviting public trust 
 and negativing the idea of usurpation, is sufficient. There need have been no 
 vacancy in the office claimed to be holden; indeed, no such office may have ever 
 existed." 
 
 Eggleston vs. Strader, 41st Cong 2 Bart., 901 
 
 A mere nsnrper not an officer de facto. ' 
 
 Where a person was appointed to an office in which no vacancy existed, and was 
 appointed by the county court, though the power of appointment resided exclu- 
 sively in the governor, he was held to be not even an officer de facto, but a mere 
 usurper, all of whose acts were illegal and void. 
 
 Sheafe vs. Tillman, 41sl Cong 2 Bart. , 911 
 
 A probate judge acting on a canvassing board where a justice of the peace is required 
 to act is not an officer de facio in the meaning of the law, because he is not acting 
 under color of title as a justice of the peace. 
 Donnelly vs. Washburn (majority report), 46th Cong 1 Ells., 464 
 
790 DIGEST OF CONTESTED ELEOTION CASES. 
 
 One personally disqualified can not be an oificer de facto. 
 Persons can not be officers defado who do not possess the qualifications required for 
 officers de jure. "One may be an officer de /acto who has been irregularly or 
 improperly appointed or selected, and his acts may be binding on third persons; 
 but in a case of personal disqualification of the officer for reasons which could not 
 be cured by a change in the manner of his selection, the rule isuniversal that he 
 can have no jurisdiction, and all his acts are void from the beginning for want of 
 authority." 
 Held vs. Julian, 41st Cong 2 Bart., 835 
 
 Not Sworn. 
 
 Not sworn, fatal to the election. 
 The committee recommended that the vote of a county be excluded because the 
 officers of election had refused to take the oath prescribed by law. The House did 
 not act on the report. 
 
 McFarland vs. Purviance, 8th Cong -.0. and H., 31 
 
 Where the officers of election in three counties were shown not to have been 
 sworn, and there were indications that the officers in the other two counties were also 
 not sworn, the election was set aside. 
 
 McFarland vs. Culpepper, 10th Cong C. and H., 221 
 
 Where there was no certificate on the returns of several counties that any oath had 
 been administered to the clerks of the poll the committee held the election void, 
 but the House refused to concur. 
 
 Taliaferro vs. Hungerford {Sd contest), ISth Cong C. and H. 250 
 
 A return was rejected, among other reasons, because the officers were not sworn. 
 Easton vs. Scott, 14th Cong C. and H. 276 
 
 "The neglect by the sheriff, or other officer conducting the election, to take the 
 oath required by law vitiates the poll for the particular precinct or county, and 
 the whole votes of such precinct or county are to be rejected," even "although 
 he now swears ' that he conducted the election impartially and legally, according 
 to the best of his knowledge.' " 
 
 Draper vs. Johnston, '23d Cong C. and H. 710, 712 
 
 Where the officers of election had been sworn by a notary public, who, in Nebraska, 
 was not authorized to administer oaths in such cases, the majority of the commit- 
 tee held that under the precedents this vitiated the election, but they preferred 
 to reject only the illegal votes. 
 
 Chapman vs. l^'erguson {inajorily report), 36th Cong 1 Bart., 269 
 
 Returns rejected where there were indications of fraud. 
 Where there was no proof that the officers of election in three precincts were sworn, 
 and there were gross irregularities and indications of fraud, the committee rejected 
 the polls. If it were not for the taint of fraud the committee would not have 
 wished to deprive the voters at these precincts of their votes, but in view of all 
 the suspicious circumstances, they held that the contestant ought either to have 
 proved that the officers in fact were sworn or that the returns represented the 
 result of a fair election and a corrct't count. Neither of these things having been 
 shown, the returns were rejected on the ground that the election officers were not 
 sworn. 
 
 Blair vs. Bnrrell, SOlh Cniig 1 Bart., 808-328 
 
 Where intimidation prevails, slight irregularities fatal. 
 The vote of a precinct should not be rejected, in the absence of fraud, simply because 
 the officers were not sworn, but where, in a county, there had been general organ- 
 ized intimidation against a certain class of voters, the precincts in that county where 
 the law was not strictly complied with and the officers were not sworn should be 
 thrown out. 
 
 Sheafe vs. Till ma 11, 4UI Cong 2 Bart, 912 
 
OFFICERS OF ELECTION. 791 
 
 With other circumstances, fatal to the election. 
 Where four judges and the registrar were required to conduct the election, and only 
 two judges acted, and they were sworn by an officer not authorized to administer 
 the oath, the committee rejected the returns on this ground among others. The 
 minority held that the officers were de facto officers and their acts valid. 
 
 Yeatesws. Martin, 46th Cong 1 Ells., 387,398 
 
 Whether failure to be sworn vitiates election. 
 Where_ an election was attacked on the ground, among others, that the officers of 
 election at one precinct were not sworn, the committee held that this would cer- 
 tainly not vitiate the whole election, and, as it would not affect the result to throw 
 out the precinct, did not decide the question of its rejection. 
 
 Arnold vs. Lea, SUt Cong 0. and H., 605 
 
 Not sworn, sufficient if sworn after the election. 
 Where the clerks of the poll were required to be sworn before the election ' ' that 
 they would take the poll fairly and impartially," and they were not sworn until 
 the next day, when they swore "that the same did contain a just and true account 
 of all the votes taken at the said election to the best of their knowledge and belief, ' ' 
 it was held to be sufficient. 
 
 Porterjield vs. McCoy, Uth Cong C. and H., 268 
 
 Two out of three not sworn may not be fatal. 
 Where the election had been held by the sheriff and- two superintendents, and evi- 
 dence of doubtful admissibility was introduced to show that one of the superintend- 
 ents and the sheriff were not sworn, the committee held that even if the evidence 
 were admitted, they would not be inclined on this ground to set aside an election 
 where no fraud or unfairness was alleged and from which the illegal votes had 
 already been purged under a rule very favorable to the party attacking them. 
 The minority held that the oath was essential and that the poll should be rejected. 
 
 Botts vs. Jones, ^8lh Cong 1 Bart. , 78, and Report 520, 1st sess. 28th Cong. 
 
 Judges sworn by officer of doubtful authority, election not vitiated. 
 Where the judges were sworn by an officer whose authority to administer the oath 
 was questionable, and where the clerk failed to act during the entire day, and the 
 votes were recorded (the election being viva voce) by the judges, the committee 
 unanimously refused to reject the votes. 
 
 Chnsman vs. Anderson, S6th Cong 1 Bart., 338 
 
 Not fatal to the election. 
 Where the county board of canvassers had rejected a return (in Florida) on the ground 
 that the return did not show that the officers were sworn, but the evidence showed 
 that they were in fact sworn, the committee counted the vote. ' ' Even the fact that 
 the inspectors of election were not sworn will not of itself, in the absence of fraud, 
 render the election void." 
 
 Finley vs. Bishee 45th Cong 1 Ells., 99 
 
 Election not vitiated, even in West Virginia. 
 Under the statute of West Virginia forbidding the county canvassers from counting a 
 precinct return unless it was shown either by the regular certificate or other evi- 
 dence that the officers of election had been sworn, a precinct return had been 
 thrown out by the county canvassers. The committee refrained from deciding the 
 question whether the law should be construed as mandatory or directory, and of 
 its constitutionality, but counted the votes of the precinct. 
 
 McOinnis vs. Alderson, 51st Cong Eowell, 638 
 
 The acts of unsworn de facto officers valid. 
 
 "The mischiefs which society would suffer were the acts of de facto officers declared 
 
 , void would be great, indeed, and in no case would the consequences of declaring 
 
 the acts of such persons void be more inconvenient, or subject to juster disapproval, 
 
 than in the case of election officers. To disfranchise and defeat the declared will 
 
792 DIGEST OF CONTESTED ELECTION CASES. 
 
 of a whole community for no fault of their own or of the candidate on whom their 
 suffrages were bestowed, through the mere omission of a judge or clerk to subscribe 
 his name to the oath, would be an intolerable hardship and wrong." 
 Blair vs. Barrett (rmnority report) , 36th Cong Report 563, p. 85 
 
 Where the election officers were sworn by an officer not authorized to administer 
 oaths, but without fraud, the committee held that "the judges and clerks became, 
 by taking the oath in good faith, public officers de facto, for the purpose of con- 
 ducting the election, and their acts are valid." 
 Koontz vs. Goffroth, S9th Cong 2 Bart, 144 
 
 "In order to give validity to the official acts of an officer of election so far as they 
 affect third parties or the public, and in the absence of fraud, it is only necessary 
 that such officer shall have color of authority. It is sufficient if he be an officer de 
 facto and not a mere usurper." (Leading case; many authorities cited.) 
 
 Barnes vs. Adams, 41st Cong 2 Bart., 765 
 
 Where all the officers are not shown to have been sworn, but no harm has resulted, 
 it will not vitiate the election, they being de facto officers. And in West Virginia, 
 where it is provided that the fact of taking the oath must either appear on the 
 poll books or be proved to the satisfaction of the commissioners of the county 
 court before they can count the vote of a precinct, and the county commissioners 
 did count the vote of a precinct where the oath was not sufficiently certified on 
 the poll books, it will be presumed that they had satisfied themselves of the fact 
 by other evidence before counting the vote. 
 Smith vs. Jackson, 61st Cong Rowell, 21 
 
 Where oath of loyalty not taken, invalid. 
 Where neither election officers nor voters took tbe oath of loyalty prescribed by the 
 convention organizing the provisional government of Missouri the committee 
 unanimously rejected the vote of the precincts. 
 
 Lindsay vs. Scott, SSth Cong 1 Bart. , 571 
 
 Oaths not on file, may not prove that they were not taken. 
 
 Where the oaths of the officers of election of a precinct were not on file in the office 
 
 of the prothonotary, where they were required to be filed, but it appeared that the 
 
 papers were carelessly kept by the prothonotary, and allowed to be taken from the 
 
 office by different persons, the committee disregarded the absence of these papers. 
 
 IngersoU vs. Naylor, S6th Cong 1 Bart, 35 
 
 Taking of oath irregularly certified. 
 Where the judges were required to be sworn, and the fact to be certified on the 
 returns in a given form, and the certificate was not in form of law, but the com- 
 mittee were satisfied from it that the judges were in fact sworn, the return was 
 allowed to stand. 
 
 Boston vs. Scott, 14th Cong C. and H., 281 
 
 Proved to have been in fact sworn; votes counted. 
 Where precinct returns were rejected by county canvassers on the ground that the 
 judges were not certified to have been sworn, but it appeared from the evidence 
 that they were in fact sworn, the committee unanimously counted the votes. 
 
 Miller vs. Thompson, Slsl Cong 1 Bart, 119 
 
 Taking of oath, etc., not properly certified. 
 On a pHma facie case, where "the law in relation to the certifying, signing, and 
 returning with the poll book the evidence of the administering the oath to the 
 officers of the election was wholly disregarded," the committee rejected the returns, 
 but on the case on the merits, it appearing that the officers were in fact sworn, the 
 votes were counted. 
 
 Koontz vs. Coffroth, 39th Cong... 2 Bart, 32, 142 
 
 Oath not certified, returns rejected. 
 Where the statute required the fact of taking the oath to appear on the poll book, 
 and it did not so appear, the returns were rejected. 
 
 Burch vs. Van Horn, 40th Cong , 2 Bart., 206 
 
OFFICERS OF ELECTION. 793 
 
 Oath not certified, and return signed by only two out of three ofScers. 
 Where there was no evidence that the managers were sworn, and the return was 
 signed by only two out of the three managers, the minority of the committee held 
 that it was incumbent on the contestant to supplement the return with parol evi- 
 dence, and as he had not done so, rejected the return. This precinct is not men- 
 tioned in the majority report. 
 
 Sloan vs. Rmvls {minority report), 43d Cong Smith, 177 
 
 Oath not subscribed, and returns irregularly forwarded. 
 Where the managers did not subscribe the oath, and forwarded their returns irregu- 
 larly, the committee were of the opinion that strict rules of law would require the 
 rejection of the return. It had been rejected by the county managers, but there 
 being no evidence of fraud and some evidence of the correctness of the vote, the 
 committee unanimously counted it. 
 
 Sloan vs. Rawls, 43d Cong Smith, 151, 177 
 
 Vote counted. 
 
 The committee counted the vote of a precinct which had been rejected by the county 
 canvassers on the ground that one of the judges was not sworn. 
 
 Brown va. Simnson, 56th Cong Report 1070, p. 2 
 
 Does not invalidate election. 
 The failure of the judges and clerks of election at a precinct to take the oath pre- 
 scribed by law, if such was the case, did not invalidate the election. The vote can 
 not be affected by the failure of an election officer to perform a duty that is purely 
 ministerial and directory. 
 
 Ooode vs. Epei, 53d €ong ..Eeport 1952, p. 8 
 
 Eequirement merely directory. 
 " It is the opmion of the committee that the statute [of North Carolina] with refer- 
 ence to swearing officers of election is simply directory." 
 
 Williams vs. Settle, 53d Cong Report 337, p. 4 
 
 Partisan Appointment op. 
 
 Officers of election not all of the same party; how proved. 
 Where the law requires the election officers to be appointed from different political 
 parties, the way in which they vote at an election after their appointment is not 
 sufficient evidence of their political character at the time of their appointment. 
 Blakey vs. Oolladay, 40th Cong 2 Bart., 419 
 
 Where it is required that the officers of election shall not all be of one party except 
 in certain contingencies the burden of proof is upon the party charging illegality 
 to show that these contingencies did not exist. 
 
 Thobe vs. Carlisle, 50th Cong Mobley, 527 
 
 Strong proof of conspiracy. 
 Where the law is violated by appointing officers of election, all of one political party, 
 "it is in itself a very strong proof of conspiracy and fraud." 
 Donnelly vs. Washhum {majority report) , 4(>lh Cong 1 Ells. , 458 
 
 Condemned, but election saved by presence of United States supervisors. 
 Where the officers of election appointed to represent one party were selected liecause 
 of their illiteracy and incompetency the committee condemned it as a clear abuse 
 of the law, and held that but for the counteracting effect of the United States 
 supervisor's law "we would be strongly inclined to apply a corrective to this mani- 
 fest abuse of power." 
 
 Buchanan vs. Manning, 4Tlh Cong 2 Ells., 295 
 
794 DIGEST OF CONTESTED ELECTION CASES. 
 
 Hay be one link in a chain of evidence to show conspiracy. 
 "The appointment of managers of election, in fairness and common decency, sliould 
 be made from opposite political parties. A refusal to do so in the face of a statute 
 directing it to be done may in some instances be evidence of fraud, and it might 
 form an important link in the chain of circumstances tending to establish a con- 
 i3piracy." But in this case the committee vi'ere not satisfied, from all the evidence, 
 of the existence of a conspiracy. 
 
 Buchanan vs. Maiming, 47th Cong 2 Ells., 297 
 
 May shift burden of proof. 
 " The appointment of illiterate inspectors and commissioners take." away from the 
 return of the election officers that presumption of truth which otherwise it would 
 have, and a party claiming a seat on the return of such officers must show the 
 utmost good faith in the election." 
 
 Buchanan vs. Manning {minority report), 47th Cong 2 Ells., 337 
 
 Impairs credit of returns. 
 Returns are only prima facie correct, meaning simply that a rebuttable presumption 
 of law stands behind them. Their credit is greatly impaired where the election is 
 entirely under the control of one party. 
 
 English vs. Peelle, 48lh Cong Mobley , 170 
 
 May be evidence of conspiracy. 
 "Where the course is systematically pursued of appointing on the election boards to 
 represent the minority or opposition party persons not indorsed by that party, 
 and as to whose loyalty to the party whose interests they are expected to guard 
 there is a question, or of appointing persons who are unable to read and write, 
 when there would be no difficulty in finding men well qualified in those respects, 
 this ought of itself to be considered evidence of conspiracy to defraud on the part 
 of the election officers. ' ' 
 
 Threet vs. Clarke, 51st Cong Rowell, 182 
 
 Raises suspicion of conspiracy. 
 "Where the law provides that each of the two political parties shall have represen- 
 tation on the election board of inspectors it is a provision to prevent dishonest 
 partisans from making false returns; and in such case the appointment of men 
 incompetent to determine whether the return is honest or not to represent the 
 party opposed to the appointing power tends to prove an intent to prevent that 
 watchfulness intended to be secured by the statute, and raises a strong suspicion 
 (if it does not fully prove) of conspiracy to falsify the returns." 
 
 McDuffie vs. Ttirpin, 51st Cong Rowell, 265 
 
 Weakens prima facie force of returns, but standing alone not fatal. 
 "A statutory provision for allowing opposing parties to have representation on all 
 election boards having charge of the conduct of elections is usually deemed nec- 
 essary to secure honest results, and when fairly executed in letter and spirit may, 
 as a rule, be relied on, at least so far as counting and returning the vote is involved. 
 A general and willful disregard by the appointing power, either of the letter or 
 spirit of the law, raises a strong presumption of an intent on the part of the 
 appointing ofiicers to afford opportunity for fraud. * * * AVhile the statute 
 does not<lirect how the appointing bodies shall make selections, its spirit clearly 
 requires that in selecting representatives of the different parties the wishes of those 
 representing the party organization shall be considered, and that the appointees 
 shall be men having the confidence of their political associates. The selection of 
 men to represent a political party on an election board who habitually vote the 
 opposite licket, who are not trusted in their party, or who are notoriously incom- 
 petent, is not a compliance either with the letter or the spirit of .the statute. 
 •* * * While suspicion attaches to all such precincts,-such suspicion is not suf- 
 ficient to invalidate the return, in the absence of other evidence, but it does have 
 the effect of requiring less evidence to overturn the prima facie correctness of the 
 returns." 
 
 Hill vs. Catchings, Slsl Cong Rowell, 804 
 
OFFICERS OF ELECTION. 795 
 
 Beqnirements (in Alabama) directory. 
 The requirements (in Alabama) for the appointment of election officers from both 
 parties are not mandatory. "In »rder for the failure to do certain specified acta 
 or the doing of certain prohibited specified acts to be' fatal to the validity of the 
 election, the statute must declare such acts or the omission to do such things as 
 fatal to the election." * * * "Nor are statutory provisions relating to elections 
 rendered mandatory bjf the circumstance that the officers of the election are crim- 
 inally liable for their violation." 
 
 Aldrich vs. Eobbins {minoriiy report) , 56th Cong Report 327 
 
 Evidence of fraud. 
 In precincts where the county electoral boards had refused to obey the law for giving 
 both parties representation on the precinct election boards the returns showed a 
 result the reverse of the usual and expected vote, and there were many other indi- 
 cations of fraud, the committee threw out the whole vote. 
 
 Thorp vs. McKenney, 54ih Cong Report 1531 
 
 May help eatabliah conspiracy, even nnder directory statute. 
 "The provision of law requiring judges of election to be able to read and write and 
 selected from votersknown tobelongto different political parties is wiseand salutary, 
 as evidenced by its being recognized and incorporated in the election laws of all 
 the States which claim to have honest election laws." "This provision might 
 ordinarily be con'sidered as mandatory," But, in Virginia, where it was expressly 
 directory, this fact "never was intended as a shield for fraud," and when the cir- 
 cumstances justify it the general refusal to obey the law may be one of the facts 
 which establish conspiracy. 
 
 Thorp vs. McKenney, 54th Cong .Report 1531, p. 6 
 
 A conspiracy to defraud reasonably inferred. 
 "It is, of course, possible for a board composed wholly of men of one party to properly 
 and honestly discharge i-he duties of such board, and tne law presumes that their 
 duties were so discharged," but in this case, where the conduct of the officials was 
 generally and grossly unfair, "the presumption of law in their favor is overthrown; 
 and, construing their action in the light of the conduct of the supervisors of regis- 
 tration and Democratic challengers, a conspiracy, involving them all, to defraud 
 the colored voters of their ballots in the interest of the contestee, is reasonably 
 inferred." The vote of a whole city, in which this conspiracy was carried out, 
 waa excluded. 
 
 Murray vs. Elliott, 54th Cong Report 1567 
 
 When deliberate, evidence of fraud. 
 Where the law for giving both parties representation on the election boards was 
 violated, not by inadvertence l)ut through deliberate partisan design, and there 
 were other circumstances indicating fraud at the polls at which contestant's party 
 had no representation, the committee threw out these polls. 
 
 Thorp vs. Epes, 55th Cong Report 428 
 
 Prima facie evidence of fraud. 
 
 " The appointment on the election boards, to represent one of the opposing parties, 
 of persons not in sympathy with or objectionable to that party, or of persons 
 unable to read and write and without the necessary mental capacity to enable 
 them to serve intelligently, should of itself be regarded as evidence of conspiracy 
 to defraud on the part of the election officials, and that the appointment of such 
 persons was prima facie evidence of fraud and misconduct on the part of those 
 charged with the constitution of these boards and the conduct of the election, 
 where it was possible to appoint competent and well-known representatives of the 
 complaining party to act as judges or inspectors of election." This presumption is 
 still more emphatic when timely and proper application was made for the appoint- 
 ment of proper persons. 
 Patterson vs. Carmack, S5th Cong Report 895, p. 5 
 
796 DIGEST OF CONTESTED ELECTION CASES. 
 
 One circnmstance showing conspiracy. 
 The committee held that a conspiracy to control the election of one county by fraud 
 was shown by the organization of the election boards all in the interest of one 
 party, by the conduct of these election boards at the election, and the conduct of 
 the registration oflBcers before the election. 
 
 Aldrich vs. Plowman, 6Blh Cong Report 284, p. 4 
 
 Only regular party committees recognized in Lonisiana. 
 Under the law of Louisiana providing for the representation on the election boards of 
 all parties casting 10 per cent of the vote at the previous election, the committee 
 held that contestant, who was nominated by petition as an Independent Repub- 
 lican candidate, was not deprived of any legal right by the failure to appoint elec- 
 tion inspectors from a list of Republicans selected by him, and the appointment of 
 those proposed by the regular Republican committee instead. 
 
 Romain vs. Meyer, 55th Cong Report 1521, p. 3 
 
 Change or Delay in Appointment. 
 
 Saspicions, but standing alone not fatal. 
 
 Unwarranted changes in judges of election, made without reason or excuse, only a 
 
 few days before the election, are suspicious circumstances, but s'tanding alone, and 
 
 not supported by evidence of fraud at the polls affecting the result of the election, 
 
 are disregarded, and the certified returns permitted to stand as made. 
 
 Langslon vs. Venahle, 51st Cong Rowell, 439 
 
 Delay in appointment not fatal. 
 ' ' Delay in appointing commissioners or inspectors does not vitiate an election held bv 
 them; otherwise it would be in the power of the board of supervisors to defea't 
 every election by delaying such appointments." 
 
 Romain vs. Meyer, 55th Cong Report 1.521, p. 4 
 
 PAXTPERS (see also Besidence). 
 
 May vote. 
 Paupers have a right to vote unless deprived of that right by statutory enactment. 
 Koonlz vs. Coffroth, 39th Cong 2 Bart., 145 
 
 Persons "employed" in a poorhonse probably not paupers. 
 
 The committee held that it was doubtful whether persons "employetl" on a poor- 
 house farm and receiving their board and clothing in lieu of wages could be called 
 paupers. But the minority held that as the compensation for the work was extra 
 food, clothing, privileges, etc., these persons were as much paupers as the inmates 
 who did no work. 
 
 Le Moyne vs. Farwell, 44th Cong Smith, 415, 427 
 
 One continuously supported in whole or in part out of public funds. 
 "Upon the question of what constitutes a pauper, there is some disagreement in the 
 authorities, but we think the following may be taken as a fair definition: A pauper 
 is one who is continuously sujiported in whole or in part out of funds provided by 
 the public authorities for that purpose. One who has been a public charge, and 
 afterwards becomes self-supporting for a sufficient time before the election to show 
 that his ability to support himself is not a mere temporary condition, may legally 
 vote. One who, under temporary misfortune or sickness, receives public aid, but 
 is ordinarily self-supporting, is not a pauper." 
 
 Smith vs. Jackson, Slst Cong Rowell 28 
 
POLLING PLACES. 797 
 
 PETITION. 
 
 See Notice op Contest. 
 
 PLACE OF ELECTION. 
 
 See Polling Places. 
 
 PLEADINGS. 
 
 See Notice op Contest. 
 
 POLLING PLACES (see also Irregularities, in Place of Election). 
 
 Establishment of, in Georgia. 
 Precincts established in Georgia by the ordinary of a county, in 1868, used at the 
 election of 1868 but not at that of 1870, the latter election being held under a 
 special law providing other precincts, were held to be in legal existence for the 
 election of 1872 and until formally abolished by the ordinary a month after the 
 election. 
 
 Slouii vs. Rawls, 43d Cong Smith, 148 
 
 The minority held that the precincts had been established for the election of 1868 
 
 alone; that in any case the law of 1870 had abolished them by implication, and that 
 
 the circumstances of the election of 1872 were such as to render the return from 
 
 these precincts untrustworthy. 
 
 Sloan vs. Rawls {minorily report) , 4Sd Cong Smith, 171 
 
 Kot abolished, in Georgia, by removal of county seat. 
 The law of Georgia provided that the court-house in each county should be a voting 
 place, and that other voting places might be established by the ordinary. The 
 majority of the committee held that a law removing the county seat from one town 
 to another did not necessarily abolish the voting place at the former town. The 
 minority held that the voting place was abolished and that votes cast at it must 
 be rejected. 
 
 Sloan vs. Rawls, 43d Cong Smith, 151, 176 
 
 When abolished, votes that wonld have been cast not counted. 
 Where it was alleged that the contestee had been deprived of votes by the abolition of 
 voting places, leaving large numbers of those who would have voted for him from 
 35 to 47 miles from the nearest polls, the committee held that votes thus lost to 
 him could not be counted unless the provisions of the enforcement act had been 
 strictly followed, -which in this case no one claimed had been done. 
 
 Lawrence vs. Sypher, 43d Cong Smith, 342 
 
 Removal of, fatal. 
 
 Where the voting place of a precinct had been conveniently located oh the public 
 
 road, but it was removed the day before the election to the "negro quarters," about 
 
 a mile distant, apparently for the purpose of depriving contestant of votes, and the 
 
 only votes cast were for contestee, the committee excluded the vote of the precinct. 
 
 Acklen vs. Darrall, 45th Cong 1 Ells., 131, 183 
 
 Where the election was held three-quarters of a mile from the usual place and there 
 was no proof that the voters generally had notice of the change, and it was proved 
 that the registering officer had kept his office closed so as to deprive many voters 
 of registration, and also that he had placed on the list the names of persons of his 
 own party not qualified to vote, the committee held that "while the holding of 
 the election at a different place from that provided by law would not vitiate the 
 poll, provided due notice was given of the change, so that knowledge of the fact 
 
798 DIGEST OF CONTESTED ELECTION CASES. 
 
 would come to both political parties, yet, in this case, the change without notice, 
 added to the conclusive evidence of the fraudulent acts of the registrarand his 
 deputy, * * * so vitiate the integrity of the poll as to destroy the value of the 
 return and make it impossible to say that the election at this poll was a fair one." 
 Goodrich vs. ISullwk, 61st Cong Rowell, 588 
 
 Change of, not fatal. 
 When the election is held at a different place from that required by law it does not 
 vitiate the election if injury has not resulted and the place of voting was generally 
 understood. 
 Smith vs. Jackson, 51st Cong - -' Rowell, 24 
 
 Where the regular inspectors of election had refused to open the poll, and the 
 inspectors appointed by the voters present under the law, fearing danger, had 
 adjourned the poll to a point three-quarters of a mile distant from the regular 
 polling place, and all the voters had notice of the change, but the partisans of con- 
 testee refused to recognize the election or vote, and all the votes cast were for 
 contestant, and the return had been rejected by the county canvassers, the com- 
 mittee counted the votes. The minority refused to count tlie votes, holding that 
 if the place of voting was changed without proper authority and due notice no 
 voter could be legally bound to take notice of the change, and that an election so 
 held was illegal. 
 
 Goodrich vs. Bullock, 51st Cong Rowell, 592,615 
 
 Election in each precinct independent. 
 "There is no doubt of the power of the House to reject for sufficient reasons the entire 
 poll of an election district. In every precinct^ the election is a separate and inde- 
 pendent one. The machinery for carrying it on is complete in itself. The election 
 of a precinct when conducted and returned according to law is a finished work." 
 
 Hurd vs. Romeis {minority report), 49th Cong Mobley, 429 
 
 New registration not necessary for new precinct. 
 Where a new polling place for the Congressional election had been established in a 
 different part of the precinct from the polling place for State officers, a separate reg- 
 istration for the new polling place was not necessary under the South Carolina law. 
 
 Smalls vs. EUioll (iidnoi-ily report), 50th Cong Mobley, 720 
 
 law for place of holding elections mandatory. 
 Where the election was held 1 mile from the place established by law and out of 
 sight of it, the committee sustained the rejection of the returns, even though evi- 
 dence was introduced to .show that the election was otherwise full and fair. 
 
 Goode vs. Eiyes, 5Sd Cong Report 1952, p. 4 
 
 Time of establishment of, in New Orleans. 
 A new law had gone into effect in the city of New Orleans requiring the redistricting 
 of the city into many small precincts of not over 200 votes each, " the boundaries 
 and precincts to be tixeil as above not to be changed within three months prior to 
 any general election." The first redistricting was not entirely ai'complished until 
 within one month prior to the election in contest; but the committee held that the 
 three months' limit of tlie law did not apply to the first establishment of the 
 districts. 
 
 Romain vs. 3Ii'i/i'i\ 55111 Cong Report 1521, p. 4 
 
 Election at wrong place void. 
 "There is less latitude allowed in changing the place at which an election is held 
 than in varying the time of opening or closing it, and it is a rule to which there 
 are very few exceptions that an election held at any improper place will be held 
 absolutely void without proof of any fraud or injury." 
 
 Patterson \s. Curinack (minority n-jmrt), 55th Cong 
 
 POLL TAX. 
 
 See Ta,\. 
 
POLYGAMY. 799 
 
 POLYGAMY. 
 
 A cause for expnlsion. 
 The committee, under instructions of tlie House to inquire into the charges of polyg- 
 amy against the Delegate from the Territory of Utah, reported that the charges 
 were estabHshed and recommended his exclusion. The minority recommended 
 that no action be taken. The House did not consider the reports. 
 
 Cannon, 4Sd Cong Smith, 259-275 
 
 A Territorial Delegate guilty of polygamy may be excluded from his seat by a major- 
 ity vote. 
 
 Cannon vs. Campbell {Mr. Calkins) , 47lh Cong 2 Ells. ,613 
 
 Polygamy is not a disqualification for a Member nor for a Delegate unless made so 
 by statute, but it may be a cause for expulsion. 
 
 Cannon vs. Campbell {Mr. Ranney), 47th Cong 2 Ells., 646 
 
 A disqaalification in a Representative from TJtali. 
 
 The committee held that polygamy was a disqualification in a Representative elected 
 
 from Utah, both by reason of his violation of the Edmunds law, by reason of his 
 
 open defiance of the law of the land, and because his election was "an explicit and 
 
 offensive violation of the understanding by which Utah was admitted as a State." 
 
 Roberts, 58th Cong Report 85, p. 3 
 
 Technical bigamy not a disqualification. 
 Where it was charged that the sitti-ng Delegate had married a second wife before the 
 granting of a valid divorce from his first wife, but "there was no pretense that he 
 undertook to live with two wives at the same time, or to maintain two establish- 
 ments, or to hold himself out as the husband of two women, your committee there- 
 fore were of opinion that no question of ineligibility was raised, and that this case 
 bore not the slightest resemblance to the Roberts case, which was presented as a 
 precedent." 
 
 Wilcox, 56th Cong Report 3001 
 
 PRIMA FACIE RIGHT (see also Burden of Proof, and Credentials). 
 
 What is. 
 " A. prima facie right must be founded upon and established by prima fade evidence, 
 and prima facie evidence is that evidence which is sufficient to establish the fact 
 unless rebutted." 
 Hunt vs. Sheldon {minority report) , 41st Cong 2 Bart., 538 
 
 Member certified and sworn in, prima facie right conclnded. 
 Where the contestee had been sworn in on the first day of the session, and on the 
 second day a resolution was offered referring all the papers in the case to the Com- 
 mittee on Elections to report on the prima facie right, but instead of this resolution 
 a resolution was adopted referring this resolution "with instructions to report on 
 the legal question involved therein," the committee held that they were not 
 empowered to exajnine other evidence than the certificate, and reported a resolu- 
 tion that in the absence of authority to examine any other evidence the certificate 
 was conclusive of the prima facie right. 
 
 Oarriaon vs. Mayo, 48th Cong _ IMobley, 53 
 
 Betnrned member entitled to the seat until final decision of the contest. 
 Where it was shown that the petitioner was elected on the face of ull the returns 
 which should have been counted by the governor, and he asked that the sitting 
 member be unseated and he be given the seat pending a contest on the merits of 
 the case, the application was refused. 
 
 Boston vs. Scott, Uth Cong C. and H., 277-279 
 
800 DIGEST OF CONTESTED ELECTION CASES. 
 
 Candidate holding certificate has a right to the seat nntil a final determination, even 
 
 though not elected on the face of the returns. 
 
 Where the Territorial board of canvassers in Michigan had received evidence and 
 
 thrown out certain votes for illegality, thereby giving the seat to a candidate not 
 
 elected on the face of the returns, they were held to have exceeded their authority; 
 
 but this should not prejudice the right of either party in the deternaination of the 
 
 case. The evidence showing that the votes were in fact illegal, the committee 
 
 excluded them and recommended that the sitting member retain the seat. 
 
 Biddle and Richard vs. Win(j, 19th Cong C. and H., 513 
 
 Unsuccessful claimant may contest. 
 The privilege of contesting has always been given the unsuccessful claimant on a 
 prima facie case. 
 
 Belknap vs. Richardson, prima facie case, SSd Cong. 
 
 The House has a right to stop a member-elect at the threshold. 
 " Both Houses of Congress have in innumerable instances exercised the right to stop 
 a member-elect at the threshold and refuse to admit him to be sworn in until an 
 investigation has been made as to his right to a seat. In some cases the linal right 
 was accorded to the claimant; in many cases it was denied. The question as we 
 view it is always to be answered from the standpoint of expediency and propriety. 
 The inherent right exists of necessity." 
 
 Roberts, 56th Cong Report 85, p. 6 
 
 Where governor threw out a forged return candidate certified elected by him 
 admitted. 
 Where the returns as canvassed by the district canvassers showed a majority for the 
 contestant and he was declared elected by this board, but one of the county returns 
 was subsequently shown to be a forgery, and the return judge was convicted and 
 sentenced for the commission of the forgery, the governor took notice of the fact 
 and issued the certificate of election to the contestee, who had the majority on the 
 original returns. The House admitted the contestee, over objections made in 
 behalf of contestant. When the committee came to decide the case on the merits 
 they declined to consider the question of the propriety of the governor's action, on 
 the ground that the prima facie right had already been settled by the action of the 
 House. 
 
 Butler vs. Lehman, 37lh Cong _ 1 Bart., 354 
 
 Claimant holding governor's certificate admitted. 
 Mr. Jayne had the certificate of the governor of the Territory, and also the procla- 
 mation of the secretary and acting governor. J\Ir. Todd had a certifica,te from the 
 secretary that after the time prescribed by law for canvassing the votes another 
 return had been received, which, if counted, would have changed the result. Mr. 
 Jayne was admitted to be sworn in and held the seat pending the contest. 
 
 Todd and Jayne, SSth Cong Report No. 1, 1st sess. 38th Cong. 
 
 Returns as canvassed settle prima facie right. 
 
 Where the State canvassing board rejected a large number of returns the committee 
 held that ' ' whatever might be the result of a contest involving the validity of these 
 returns and the sufficiency of the reasons assigned for rejecting the parishes which 
 were rejected, the returns are to be received as prmia facie evidence of the result 
 of the election." 
 
 Hunt vs. Sheldon, 41st Cong 2 Bart, 533 
 
 Party holding certificate should be seated. 
 
 A person having the governor's certificate in due form is entitled, prima facie, to the 
 seat. 
 
 Colorado case (minority report) , 48lh Cong 2 Bart., 166 
 
 "It is enough for a jn-imafacie case if the certificate came from the proper officer of 
 the State and clearly shows that the person claiming under it has been adjudged 
 to be duly elected by the official or 'board upon whom the law of the State has 
 imposed the duty of ascertaining and declaring the result." 
 
 Clark, 42d Cong ; [ Smith, 9 
 
PRIMA FACIE RIGHT. 801 
 
 The returned member lias the right to hold the seat pending a contest with the per- 
 son who would have been returned but for a clerical error, even though the fact 
 be admitted by the returned member. 
 
 Chalmers vs. MaimiiKj {rieivn of Mr. Cook), 4Slh Cony Mobley, 26 
 
 Letter from governor, in absence of certificate, insnfRcient. 
 
 Where the governor of Pennsylvania refused to certify either candidate as elected, 
 but in a letter to the Clerk of the House transmitting certain affidavits he expressed 
 the opinion that these affidavits "indicated the election" of Mr. Covode, and this 
 letter was, with other papers, referred to the committee with instructions to report 
 who, on these papers, appeared to have the priiiiii facie right to the seat, the 
 majority of the connnittee reported that this letter, having been made evidence by 
 the resolution of reference, it established the priiiiii facie right of Mr. Covode. The 
 minority held that neither candidate had a prima facie right, and the House sus- 
 tained the minority. 
 
 Foster vs. Covode ( jiriina facie case), 41st Cong 1 Bart., 521 
 
 Members under charges of disloyalty not sworn in. 
 Where charges of disloyalty were made against members elect they were not allowed 
 to be sworn in pending an investigation of the charges. 
 
 Kentuchj members, 40th O/nij 2 Bart., 327-370 
 
 Where credentials and returns of doubtful authority, neither party sworn in. 
 Where the authority of a returning board to canvass the returns was doubtful, and 
 the correctness of their returns was "I'hallenged by evidence which shows probable 
 cause, abundantly sufficient (certainly more so than common fame, upon which 
 the House might act) to put the House upon inquiry before these returns are 
 accepted as conclusive," the majority of the Committee recommended, and the 
 House ordered, that the seat remain vacant until further testimony could be taken. 
 The minority held that the returns were not impeached and ought to be accepted. 
 
 Sheridan vs. Pinchback,' 4Sd Cong Smith, 200-206, 229-232 
 
 Members elected on face of the returns seated pending contest in spite of the certifi- 
 cate of election. 
 Where one set of claimants presented regular certificates of election and another 
 set presented certificates from the secretary of state that they had received the 
 largest number of votes, the House at first refused to admit either set of claimants, 
 but afterwards admitted the contesting claimants (the Committee on Elections 
 having reported that they received the largest number of votes cast) to hold the 
 ssats without prejudice to the final right of the commissioned claimants. The 
 investigation on the merits havmg shown that the members thus admitted received 
 the legal majority, their titles were confirmed. 
 
 Neic .Terse,!/ case, 2iilh Cong 1 Bart. , 19 
 
 Where a Territorial governor gave the certificate to the person who appeared not to 
 have received the highest number of x'otes, the committee held that a certificate so 
 issued, though regular in form, did not confer a ]>riiiia facie right to the seat. The 
 House went further than the committee and seated the opposing candidate. 
 
 Colorado case, 40th Cong 2 Bart., 164 
 
 Candidate elected on face of county returns admitted. 
 Where the regularly appointed return judges of four of the five counties in the dis- 
 trict assembled and canvassed the vote of the foui counties and certified the result 
 thereon, but the governor refused to proclaim the election of either candidate, the 
 committee were inclmed to the belief that the certificate of the four return judges 
 gave sufficient priinn facie title to the seat and held that it was certainly sufficient 
 prima facie evidence of the vote of the four counties, and as the vote of the fifth 
 county was undisputed and would not change the result, they recommended that 
 the candidate thus shown to have the majority be sworn in. The minority went 
 behind these returns to the precinct returns and arrived at a different result, but 
 the House sustained the majority. 
 
 Koontz vs. Coffroth (prima facie casc),-iyih Cong 2 Bart., 27 
 
 H. Doe. 510 51 
 
802 DIGEST OF 0ONTE8TJED ELECTION 6aSE8. 
 
 In case of conflicting certificates. 
 Oontestee had a certificate that he had been elected by a majority of the votes; con- 
 testant a certificate that he had been elected by a majority of the legal votes. 
 Both certificates bore the same date, but it was evident from all the circumstances 
 that the certificate of contestant must have been issued long after that date. There 
 was also a "statement" from the board of canvassers showing that contestee had 
 received the highest number of votes, but claiming that, on account of his ineligi- 
 bility, contestant ought to be seated. The minority held that the prima fade title 
 was in contestee, and, he being ineligible, they recommended that neither party 
 be sworn in. The House sustamei} the minority. 
 
 Wallace\a. Simpson {minority report), 41st Cong 2 Bart., 557 
 
 Certificate not based on canvass of votes of no effect. 
 Where a candidate presented a certificate in due form, signed by the legal governor, 
 but conceded that at the time the certificate was issued the returns had never been 
 canvassed, the committee unanimously held that the certificate did not establish 
 a. prima facie right and proceeded to inquire into the case on the meritw. 
 
 Sheridan vs. Pinchback, 43d Cong Smith, 198, 227 
 
 aUALIFICATIONS OF EliECTOKS. 
 
 ((S!«e ateo Illegal Votes; Residence; Agreement; Tax; Indians.) 
 
 Freehold title to land in Virginia. 
 Under the Virginia law permitting only freeholders of six months' standing to vote, 
 
 it is sufficient if a freehold title be obtained at any time before the election, if there 
 
 has been six months' actual possession. 
 
 Taliaferro vs. Hungerford (2d contest), 13th Cong C. and H., 253 
 
 Bassett vs. Bayley, ISth Cong C. and H., 258 
 
 Under the law of Virginia requiring a freehold estate as a qualification for TOting, 
 all votes given by virtue of title bonds not conveying a legal freehold estate should 
 be rejected. 
 Porterfield vs. McCoy, 14th Cong ^ . .C. and H., 270 
 
 "Persons possessed of a mere equitable interest in lands or holding a bond for a 
 deed are not to be deemed 'possessed of an estate of freehold in land,' so as to 
 entitle them to vote" under the constitution of Virginia. 
 
 Draper vs. Johnston, S2d Cong ^ C. and H., 711 
 
 Definitions of "Housekeepers." 
 
 Under the provisions of the constitution of Virginia granting the right of suffrage to 
 "housekeepers and heads of families," hM: (1) " That unmarried persons who are 
 living with their mothers or with younger brothers and sisters, in the absence or 
 after the death of their father, taking charge of and providing for the family, are 
 to be deemed 'housekeepers and heads of families' within the meaning of the con- 
 stitution in Virginia." 
 
 (2) "That where the voter keeps house, having a woman living with him as his 
 wife, he is the ' head of a family ' within the meaning of the constitution, and that 
 the committee will not inquire whether he is legally married or not." 
 
 Draper vs. Johnston, 22d Cong C. and H., 711 
 
 Residence. 
 If the State law requires that electors shall vote only in counties where they reside 
 and at designated places, votes given at other places should not be counted. 
 
 Miller vs. Thompson, Slat Cong 1 Bart., 121 
 
 Must vote in connty where qualified, in Virginia. 
 ' ' Where the land of the elector upon which he claims the right to vote lies in a 
 different county, or where the other required qualifications are in a different 
 county from that in which the elector offers his vote, such vote ought to be 
 rejected, the constitution giving the right only in the county 'wherein such land 
 shall lie or such housekeeper and head of a family shall live.' " 
 
 Draper vs. Johnston, 2Jd Cong C. and H., 711 
 
QUALIFICATIONS OF ELECTORS. 803 
 
 By land, votes mtist be cast in county where land lies. 
 Under the law of Virginia tlie votea of freeholders residing out of the district, but 
 having a competent- estate within it, were legal, but all votes not given in the 
 county where the land upon which they were given was situate were illegal, 
 even when they had been admitted by the consent of parties. 
 
 Porterjield vs. J/cCoj/, Uth Cong 0. and H., 269 
 
 If by residence, gives right only in county of residence. 
 The constitution of Tennessee provided that " every freeman of the age of 21 years 
 and upward, possessing a freehold in the county wherein he may vote, and being 
 an inhabitant of this State, and every freeman being an inhabitant of any one 
 county in the State six months immediately preceding the election, shall be 
 entitled to vote for members of the general assembly for the county in which he 
 shall reside." The committee held that the branch of the article which pre- 
 scribed the second qualification of the voter restricted him to vote in the county 
 wherein he had been an inhabitant six months immediately preceding the elec- 
 tion and permitted him to vote nowhere else. 
 
 Kelly VH. J/arW.s, ISth Conri C. and H., 262 
 
 By tax paying, in Virginia. 
 Under the constitution of Virginia giving the right to vote to those who for twelve 
 months have been housekeepers and heads of families, "who shall have been 
 assessed with a part of the revenue of the Commonwealth within the preceding 
 year, and actually paid the same," held, by a majority of the committee, "that 
 where taxable property is owned and possessed by the son and is assessed in the 
 name of the father, but the tax is actually paid by the son, he, having all the 
 other qualifications required, is entitled to vote, but that if the property is both 
 assessed to and paid by the father, the vote is to be rejected." 
 Draper vs. Johnston, £Sd Cong : C. and H., 711 
 
 Under the above provision of the constitution, held also "that where a revenue tax 
 is duly assessed and the sheriff has paid the tax himself, and has not returned the 
 party delinquent, as he has the right to do if he is insolvent, or the sheriff is not 
 able to collect the tax, that this is to be deemed a payment by the party, so as to 
 entitle him to vote." 
 Draper vs. Johiistoti, Z.2d Cong C. and H., 711 
 
 Under the above provision, held also "that the assessment and payment of taxes 
 required by the laws of Virginia are to be for the year preceding the election, and 
 not for the same year in which the election is held." 
 
 Draper vs. Johnston, 2Sd Cong 0. and H. , 712 
 
 Persons having a visible mixture of African blood not white. 
 The constitution of Ohio required, among other things, that the qualified voters 
 should be "white male citizens of the United States." The committee "are 
 clearly of opinion that men of the African race, of mixed negro blood, having a 
 distinct and visible admixture of African blood, are not white within the meaning 
 of the constitution, and they have no doubt that they are comprehended within the 
 spirit and letter of the decision of the Supreme Court of the United States, in the 
 case of Dred Scott m. Sanford, 19 Howard, 393, and theiefore not citizens of the 
 United States. Any other doctrine would entitle them to seats upon the floor as 
 members of this House." 
 
 Vallandigham vs. Campbell, 35th Cong 1 Bart. , 233 
 
 Deserters disqualified. 
 The votes of deserters were rejected. 
 
 McKee vs. Young, 40lh Cong 2 Bart., 461 
 
 The fact of desertion a disqualification, even without conviction, 
 Under the law of Ohio providing that voters must be citizens of the United States, 
 and the law of the United States providing that all deserters not reporting before 
 a certain time should be considered as having forfeited their citizenship, deserters 
 were not qualified voters in Ohio, and the disqualification consisted in the fact of 
 desertion and not in conviction of desertion. The ofiicers of election or the House 
 
804 DIQEHT OK nONTKSTED ELECTION CASES. 
 
 might judge of this fact, just as they might judge of the fact of lunacy or nonresi- 
 dence, or as the House iiiiglit reject votes for bribery where there had been no 
 conviction. Under this principle the votes of all persons proved to have been 
 deserters were rejected by the committee. 
 Delano vs. Morgan, 40th Cong 2 Bart. , 169 
 
 Rebel soldiers, in Kentucky, disqualified. 
 The committee first held that as there was no statute of Kentucky disfranchising 
 returned rebel soldiers their votes could not be rejected. Afterwards, the case 
 having been recommitted to the committee, it was held that rebel soldiers from 
 Kentucky, having surrendered under parole, and having been expressly excepted 
 from the President's proclamation of amnesty, were still prisoners of war, unpar- 
 doned, and that they had no more right to vote than armed enemies in the field. 
 The report embodying the latter decision was sustained by the House. 
 
 McKee vs. Young, 40th Cong 2 Bart., 422-461 
 
 Betnrned rebel soldiers in Kentucky not permanently disqualified. 
 In the absence of any law to the contrary, ex-rebel soldiers had a right to vote in 
 Kentucky. Their status as paroled prisoners of war, on account of which their 
 votes had been rejected in a former case, had certainly ceased to exist three years 
 after the war had closed. 
 
 Barnes vs. Adams, 4ist Cong 2 Bart., 762 
 
 Voter once registered, in Arkansas, qualified. 
 Under the constitution and laws of Arkansas in force in 1872 a person possessing a 
 registration certificate, and whose name was on the registry list when the regis- 
 tration was closed by the board of review, was a legal voter, and no action of the 
 board or any member of the board, or of any other power, could invalidate his 
 right after that time. 
 
 Bell vs. Snyder, 43d Cong Smith, 250 
 
 Ability to read and write, in Massacbusetts. 
 "We think that it is a reasonable regulation that the officers in charge of registration 
 should see to ifthat persons offering to vote possess the necessary qualifications; 
 and we can not see that because persons not qualified to vote have been allowed to 
 violate the law on one or more occasions they can be heard to plead such violation 
 as a bar to the enforcement of the law against them thereafter. Whenever the dis- 
 qualification of voters appears it is clearly the duty of the ^registration officers to 
 refuse to register them. If the registration officers refuse in an illegal way to reg- 
 ister this class of persons or give a wrong reason for their refusal, still this would 
 give such persons no right to vote while they admit that they are clearly disquali- 
 fied under the constitution. We ti erefore hold that all persons who could not 
 read and write, as required by the constitution of llassachusetts, were not legal 
 voters, and can not be heard to complain of any technical violation of law by the 
 registration officers whereby they were deprived of registration, while admitting at 
 the same time that they did not possess the constitutional qualifications of electors." 
 
 Boynton vs. Loring, 46th Cong 1 Ells., 350 
 
 One wbose faculties are enfeebled by age is not an idiot. 
 "The vote of a man otherwise qualified, who is neither a lunatic nor an idiot, but 
 whose faculties are simply greatly enfeebled In' age, ought not to be rejected." 
 (Sinks vs. Reese, 19 Ohio St., 307.) 
 Campbell vs. Morey, 4Sth Cong Mobley, 227 
 
 Person of unsound mind. 
 
 "A person having sufficient intelligence to make a valid will, or to bind himself by 
 ordinary contracts, or to be criminally responsible for his acts, is a person of sound 
 mind. One whose will would be held invalid for no other reason than mental 
 incapacity is a person of unsound mind. 
 
 " In the record we find the oft-recurring question, ' Was the voter in your opinion a 
 man of unsound mind?' put to a nonprofessional witness without any attempt to 
 define what was meant by unsoundness of mind. To the answer to such question, 
 unaccompanied by any explanation of what the witness understood by the term, 
 we attach very little weight. The condition of the voter, his acts and speech, how 
 
QUALIFICATIONS OF ELECTORS. 805 
 
 he is regarded by those who know him as to his competency to contract, judicial 
 determinations, and the lilie evidence has been given due weigiit. The term 
 'idiot' is so well understood that the statement of a witness that a person is an 
 idiot is given more weight, as being the statement of a fact within the knowledge 
 of the witness, and not a mere opinion." 
 Smith vs. Jachson, 51st Cong Rowell, 28 
 
 "Soldiers" not necessarily disqualified. 
 The designation of certain voters by witnesses as "soldiers" is not sufficient without 
 further proof to show the votes illegal. 
 Botkin vs. Maginnis, 48th Cong Mobley, 378 
 
 aUAIilFICATIONS OF REPRESENTATIVES. (See also Delegate, In- 
 habitant, Ineligibility, Citizensh.ip.) 
 
 May be restricted to one county of a district. 
 The State of Delaware being entitled to one Representative in Congress, it was pro- 
 vided by the statute that every person offering to vote should ' ' deliver in writing, 
 on one piece of paper, the names of two persons, inhalsitants of the State, one of 
 whom at least should not be an inhabitant of the same county with himself. " Held, 
 that the law is constitutional, and that the ballots containing only one name and 
 those containing the names of two persons, inhabitants of the county in which the 
 ballots were cast, should be rejected; but those containing the names of two per- 
 sons, both inhabitants of the same county but of a different county from the one 
 in which the ballots were cast, should be counted. 
 
 Latimer vs. Patton, 3d Cong 0. and H., 69 
 
 States can not superadd to those prescribed by the Constitution. 
 
 The States can not superadd qualifications for membership in Congress to those fixed 
 
 by the Constitution. A State law requiring that in a district entitled to send two 
 
 Eiepresentatives one should be a resident of the city and the other of the county 
 
 held by the committee to be unconstitutional. The House avoided a direct decision. 
 
 Barney vs. McCreery, 10th Cong C. and H. , 167 
 
 The States have no power to prescribe qualifications for Representatives in Congress 
 additional to those prescribed by the Constitution. "By the- Constitution the 
 people have the right to choose as Representative any person having only the 
 qualifications therein mentioned, without superadding thereto any additional 
 qualifications whatever. A power to add new qualifications is certainly equivalent 
 to a power to vary or change them. An additional qualification imposed by State 
 authority would necessarily disqualify any person who had only the qualifications 
 prescribed by the Federal Constitution." 
 
 Although the constitution of Illinois declared that all votes cast for the judges elected 
 to the supreme or circuit courts, for any other oflice within the term for which 
 they were elected or one year thereafter, should be void, the House held that 
 persons clearly coming within this disqualification were elected. 
 
 Tumey vs. Marshall and Fouhe vs. Trumbull, 34th Cong 1 Bart., 167-169 
 
 The States have no power to superadd to the qualifications prescribed by the Consti- 
 tution of the United States for a Representative in Congress. 
 
 Wood vs. Peters, 4Sth Cong Mobley, 80 
 
 Neither States nor Congress can superadd qualifications. 
 If the States have no power to superadd qualifications for Representatives in Congress 
 to those prescribed by the Constitution, it is equally clear that Congress possesses 
 no such power, and the "test-oath" act of July 2, 1862, being in effect the require- 
 ment of an additional qualification, is unconstitutional. 
 
 McKee vs. Young (minority report), 40th Cong. .- 2 Bart., 450 
 
 States have power to superadd. 
 The enumeration of certain negative qualifications for Representatives in Congress in 
 the Constitution of the United States does not exclude the requirement of other 
 qualifications. The right to require additional qualifications is among the reserved 
 rights of the States. 
 
 Woodys. Petirs {Mr. Bennett), 48lh Cong Mobley, 82 
 
80(5 DIGEST OF CONTESTED ELECTION OASES. 
 
 The House has the right to exclude a member-elect for other than the constitutional 
 
 discLualiflcatious. 
 
 The House has the right to exclude a member-elect for polygamy, insanity, disloy- 
 
 ality, or other obvious disqualification, without permitting him to be sworn in. 
 
 It has no right to expel him except for causes connected with his membership as 
 
 such. 
 
 Eoherls, 56th Cong Report, 85 
 
 The qualifications enumerated in the Constitution are exclusive. 
 The qualifications of Representatives enumerated in the Constitution are exclusive, 
 and can not be added to by law or \>j the action of the House. The House has 
 the power to exclude any person, with or without reason, and no tribunal can 
 rex'iew its action, but it has no right to do so. 
 
 Roherts {minority report), S6th Cong Report 85, part 2 
 
 A member of Congress is an "officer." 
 A member of Congress is an "officer" within the meaning of the Constitution. 
 
 Roberts, 66th Cong Report 85, p. .36 
 
 He is not such an officer. 
 
 Roherts {minority report), 66th Cong Report 85, part 2, p. 65 
 
 Seat vacated by acceptance of disqualifying office. 
 The acceptance of any office under the United States by a member after he has 
 taken his seat operates a forfeiture of the seat. The seat of a member who had 
 accepted the office of major of militia in the District of Columbia was' vacated by 
 a unanimous yea-and-nay vote. 
 
 Van Ness, 7th Cong _ C. and H., 122 
 
 Holding any office under the United States is incompatible with membership in the 
 House, whether the duties of the office be exercised or not. 
 Hammond vs. Herrick, 16th Cong C. and H., 289 
 
 Disqualifying office does not disqualify if resigned before the beginning of the first 
 session, 
 A member-elect who continued to hold an office under the United States after elec- 
 tion and after the March 4 on which the previous Congress expired, but resigned 
 it in November before taking his seat, held not to have forfeited his membership. 
 Hammond vs. Herrick, 15th Cong C. and H. , 286 
 
 A postmaster elected to Congress, continuing to hold his office after election and 
 after the March 4 on which the previous Congress expired, but resigning before 
 taking his seat, held not to have forfeited his seat in Congress. 
 
 Earle, 15th Cong C. and H., 314 
 
 Disqualifying office can not be held beyond the beginning of the first session of the 
 Congress, 
 "When the time arrives at which the duties of two incompatible offices are by law 
 to be discharged, a man at liberty to choose between the two as effectually declines 
 one not entered upon by continuing in the one already held as he would vacate 
 the former if he did enter upon the latter." A Representative-elect may hold an 
 incompatible office subsequent to his election, and subsequent to the 4th of ilarch 
 on which the previous Congress ceases to exist, but at the beginning of the first 
 session of the Congress to which he is elected he must choose between the two 
 offices, and if he continues to hold his former office after the beginning of the ses- 
 sion he is held to have declined his election to Congress and can not afterwards 
 qualify as a member. 
 
 Scheuck ninl Blair, SSth Cong Report No. 110, 1st sess., 38th Cong., p. 10 
 
 Where disqualifying office has practically expired by limitation a formal resignation 
 not necessary. 
 A memlicr of Congress who had held the office of principal assessor of taxes under 
 the direct-tax law and had never resigned his office was permitted to retain his 
 seat in Congress on the ground that the duties of the office had ceased and the law 
 under which it was created had expired before he took his seat, and a formal resig- 
 nation was hence not necessary. 
 
 ilimford, 15th Cong n_ nnrt H ^ir 
 
QUALIFICATIONS OB" REPRESENTATIVES. 807 
 
 Where contestant had been employed as "special assistant" to a United States dis- 
 trict attorney, but the special work for which he was retained had been completed 
 before the beginning of the session of Congress, the committee, without deciding 
 whether or not the position was an "office" within the meaning of the Constitu- 
 tion, held that as the connection of the contestant with the position had practically 
 ceased, no resignation was necessary, and contestant wag not disqualified as a 
 member of Congress. Mr. Ranney, and those signing a report made by him, held 
 that the position was not an office, and also called attention to the fact that a con- 
 testant was not a member of Congress. Mr. l^avis, in a minority report, held that 
 the position was a disqualifying office, and that contestant not having resigned it 
 until after the opening of the session of Congress, he ought not to be admitted to 
 his seat. 
 
 Chalmers vs. Manning, 4Sth Cong Mobley, 35-58 
 
 Petitioner's right not waived by the acceptance of an incompatible office if resigned 
 before beginning of session of Congress. 
 The petitioner claimed to have been elected to Congress in September, 1828, for the 
 term beginning March 4, 1829. In January, 1829, he accepted a State office, for 
 which a member of Congress was disqualified by the State constitution, for a term 
 which would have extended beyond March 4, 1829; but in February he resigned 
 the office on account of sickness in his family. He was held not to have waived 
 any rights under his claimed election to Congress. 
 
 Washburn vs. Ripley, Slst Cong C. and H., 682 
 
 Acceptance of disqualifying office by contestant destroys his right to the seat. 
 Contestant, on the same day on which he claimed to have been elected to Congress, 
 was elected to the legislature of South Carolina; he took his seat and served his 
 term. Before the determination of the contest he was elected to and held the 
 office of sheriff. Both these offices were int-ompatible, by nature and by the con- 
 stitution of South Carolina, with the office of Representative in Congress, and the 
 t-ommittee refused to award the seat to contestant, on this ground among others. 
 
 Bowen vs. De Large, 43d Cong Smith, 100 
 
 Whether acceptance of seat in Congress operates as resignation of disqualifying office. 
 It was contended by the sitting member that a person holding an office under the 
 United States who accepts the office of member of Congress by qualifying and per- 
 forming its duties, should be held to have vacated his former office without a formal 
 resignation, and be permitted to retain the latter. But the committee seems not to 
 have sustained the point. 
 
 Mumford, 15th Cong C. and H., 318 
 
 Acceptance of disqualifying office a resignation of former office. 
 "That the acceptance by the same person of an office incompatible with another 
 held by him is a virtual resignation or forfeiture of the office first held is too plain 
 a proposition to need illustration. It results from the presumption that no man 
 can intend, as well as from the policy that no man shall be permitted, to hold a 
 trust the duties of which he has disqualified himself from performing." 
 
 Byington vs. Vandever, 37lh Cong .1 Bart. , 397 
 
 " The acceptance and entering upon the discharge of the duties of an office which, 
 from the nature of its duties, or from express legal or constitutional prohibition, is 
 incompatible with another previously held, vacates the former office from the time 
 of such acceptance and entering upon the duties assigned to the latter office. And, 
 consequently, when a person elected to Congress accepts that office, or qualifies 
 and enters upon the discharge of its duties, he vacates or forfeits any office he may 
 then hold under the United States. And when any member of Congress, after he 
 has qualified or entered upon the discharge of his duties as such member, accepts 
 or enters upon the discharge of the duties of ' any office under the United States,' 
 he ipso facto vacates or forfeits his seat as a member of Congress." 
 Schenck and Blair, SSlh Cong Report.No. 110, Istsess., 38th Cong., p. 9 
 
 Acceptance of commission in the Army vacates seat. 
 The office of colonel in the Volunteer Army (in the Mexican war) held to be incom- 
 patible with that of Representative in Congress and that the acceptance of the 
 former vacates the latter. 
 
 Baker and Yell, 39th Cong _ I Bart., 92 
 
808 DIGK8T OF CONTESTED ELECTION CASKS. 
 
 The aci'e])tan(L' of an ofRce in the military service of the United States was held to 
 vacate a seat in Congress^, even though the commission of the officer styled him an 
 officer in the "militia uf Iowa." The committee were of opinion that the volun- 
 teer army was part of the Army of the United States, and its officers officers of the 
 United States. 
 
 Byinglon vs. Vamlerer, 37th Cong 1 Bart., 396 
 
 British pensioner eligible. 
 A native American who had been an officer in the British army during the Revolu- 
 tion, and had drawn half jiay up to within six months of hiselection to Congress, 
 when he had renounced it, but who had ne\er taken %h(t oath of allegiance to Great 
 Britain, and had held office and taken the required oaths in Maryland, held to be 
 eligible to Congress. 
 
 Key, lOlh Cong C. and H.,231 
 
 Inhabitancy. 
 A person having moved into a State two weeks before the election, announcing his 
 intention to make it his permanent residence, but intending to spend his winters 
 at his former residence in the District of Columbia, held to be an inhabitant of the 
 State and eligible to Congress. 
 
 Key, 10th Cong C. and H.,224 
 
 Employment of an attorney in United States case not a disciaalifying office. 
 Where an attorney is employed or retained by the Attorney-General to assist in a 
 given case or cases, and for a stipulated compensation, it does not make him an 
 officer of the United States so as to disqualify him from holding a seat in Congress. 
 
 Massey vs. Wise, 48th Cong ilobley, 367 
 
 "Special assistant to the district attorney" a disqualifying office. 
 The office of "special assistant to the district attorney" of the United States is an 
 office of the United States within the meaning of the Constitution, and disqualifies 
 from holding the office of member of Congress. 
 
 Massey vs. Wise {in inorily report), 4Sth Cong ilobley, 371 
 
 Disloyalty a disqualification. 
 A candidate who had sympathized with the rebellion and had aided it by feeding 
 rebel soldiers, pointing out the hiding place of a Union soldier and advising his 
 arrest, etc., was held not to be entitled to be sworn in. 
 
 MeKee vs. Young, 40th Cong 2 Bart., 122 
 
 Where one claimant had been the editor of a disloyal newspaper during the war 
 and the other had serveii as an ensign in the rebel army, the committee held that 
 neither of them was entitled to be sworn in. 
 
 Christy vs. Wimpy, 40th Cong 2 Bart., 465 
 
 Where the disloyalty of contestee was shown l)y u letter published by him in a news- 
 paper, at the beginning of the war, it was held that he was not entitled to be 
 sworn in. 
 
 Smith, vs. Brown, 40th Cong 2 Bart., 395 
 
 A really loyal person eligible, though not technically within the fonrteenth 
 amendment. 
 Where contestee had done acts in violation of the letter but not of the spirit of the 
 fourtei'iith amendment, and it ajipeared that he had been really loyal througholit 
 the war, he was held to be eligible. 
 
 7'aeLrr vs. Honker, .'/Isl Cong _ 2 Bart., 772 
 
 Disloyal acts prior to complete annexation of Hawaii overlooked. 
 Where it was charged that, after the annexation of Hawaii but before Congress had 
 provided a system of goveriuuent, the sitting Delegate (who had been of the Roy- 
 ahst party) was guilty of acts disloyal to the United States, the committee said, 
 "We do not think that the conduct of a native of the Hawaiian Islands a year or 
 more prior to the adoption of that organic act, however improper it may have been, 
 abstractly viewed, ought to de))rive the Hawaiian people of the representative 
 whom they have solemnly sent." 
 
 Wilcu.i:, BGth Cong 1^'Hnnvt !fnm 
 
QUALIFICATIONS OF REPRESENTATIVES. 809 
 
 Polygamy a disqualification. 
 Where a member was duly elected, duly returned, and had all the constitutional 
 qualifications, but was a polygamist, the House vacated the seat by the following 
 resolution: '^Resolved, That under the facts and circumstances of this case, Brigham 
 H. Roberts, Representative-elect from the State of Utah, ought not to have or hold 
 a seat in the House of Representatives, and that the seat to which he was elected 
 is hereby declared vacant." 
 Roberts, S6lh Comj Report 85, p. 52 
 
 BEBUTTAIi. 
 
 See Evidence iit Chief in Time for Rebuttal. 
 
 KECOUNT. 
 
 Application for recount should show some probability of frand or error. 
 Where contestant had made an unsuccessful effort to procure a recount of the ballots 
 within the sixty days, and applied for an order of the House to send for the ballot 
 boxes and recount the votes, ' ' the committee were of opinion that such an applica- 
 tion should be founded upon some proof sufficient, at least, to raise a presumption 
 of mistake, irregularity, or fraud in the original count, and ought not to be granted 
 upon the mere suggestion of possible error." * * * " To adopt a rule that the 
 ballot boxes should be opened upon the mere request of the defeated candidate 
 would occasion more fraud than it could possibly expose." 
 
 Kline vs. Mi/ers, S8th Cong 1 Bart., 574 
 
 In West Virginia demand need not be made on day of first count. 
 Under the statute of West Virginia providing for a recount on the demand of either 
 party this demand need not be made on the day of the announcement of the 
 result of the first count. The governor of West Virginia erred in refusing to count 
 the returns based on the result of a recount legally had. 
 
 Smilli vs. Jackson, 51st Coiuj Rowell, 15 
 
 Can not be made in Pennsylvania by the officer taking testimony. 
 Under the law of Pennsylvania permitting the ballot boxes to be opened only upon 
 oath as to the facts expected to be shown by them, and by a tribunal authorized 
 to try the merits of the election, the minority (whose report way sustained by the 
 House) held that the magistrate taking testimony "was not a person nor a tribu- 
 nal authorized to try the merits of the election and had no authority under the 
 law of Pennsylvania or of Congress to order those boxes to be broken open. In 
 the opinion of the undersigned, the objection of the sitting member to the opening 
 of these boxes was well taken, and if that objection had not been waived at the 
 hearing, the testimony as to the recount should have been overruled." 
 
 Butler ya. Lelmian {minority report) , S7th Cong 1 Bart., 361 
 
 Commissioner taking testimony authorized to require production of ballots. 
 Where the contestant, acting under the impression that the language of the statute 
 "to answer the call of any person or tribunal authorized to try the merits of such 
 election" did not authorize the officer taking depositions to require the production 
 of the ballots, had called the voters instead to testify how they voted, the com- 
 mittee said: "In the opinion of the committee the contestant would have found 
 ample authority for the production of the ballots in sections 122 and 123 of the 
 Revised Statutes of the United States. In section 12:! full power is given to the 
 officer engaged in taking depositions in a contested election case in the Plouse of 
 Representatives 'to require the production of papers,' and if 'any person refuse or 
 neglect to produce and deliver up any paper or papers in his possession pertaining 
 to the election' he is made liable to heavy penalties. The ballots were papers per- 
 taining to the election." 
 
 Qreevy vs. SctiU, 52d Cong Stofer, 157 
 
810 DIGEST OF CONTESTED ELECTION CASES. 
 
 The notary has a right to require production of ballots. 
 Under the Federal statute for taking testimony in election cases the notary has the 
 right to require the production of the ballots, even under a statute (of Illinois) 
 permitting the ballots to be opened only in open court or in open session of the 
 body trying the contest. It is obviously impossible to open the ballots in open 
 session of the House, and the notary fully represents the House and constitutes a 
 tribunal for the purpose of reducing to vrritten form such evidence as the ballots 
 may contain. 
 
 Rintiker vs. Downing, 54th Cong Report 1400, p. 8 
 
 The Constitution and the statute [for taking testimony] enacted in pursuance thereto 
 are the supreme law of the land, and under this law the ballots can be required to 
 be produced in a Congressional contested election case, anything in the constitu- 
 tion or laws of a State to the contrary notwithstanding. A State court would have 
 been under obligations to compel the production of the ballots under the Federal 
 law. 
 
 Van Horn vs. Tarsney, 54th Cong Report 355, part 1, p. 17 
 
 Eight not enforceable by State courts, 
 The minority held that while Congress itself could not be prevented by State laws 
 from ascertaining the result, "we do not agree with the majority that any court in 
 the land has power, in aid of that Congressional prerogative, to compel officers 
 * * * contrary to a State law to exhibit ballots * * * to any officer or com- 
 missioner other than a duly authorized representative of either of the Houses of 
 Congress." 
 
 Van Horn vs. Tarsney (minority report), 54th Cong Report 355, part 3, p. 5 
 
 Kot to be received where ballots could have been tampered with. 
 Where the evidence showed a possibility that the ballots might have been tampered 
 with, the minority held that no recount could be received. 
 Archer vs. Allen {minority report), 34th Cong 1 Bart., 176 
 
 Where ballot boxes were kept by the official custodians, but in such a manner as to 
 expose them to the danger of being tampered with, and there were indications 
 that they were tampered with, the committee unanimously refused to receive the 
 results of a recount. 
 
 Kline ya. Verree, S7ih Cong 1 Bart., 384 
 
 Bejected, where ballots improperly kept and not legally in existence. 
 Where the ballots recounted had no legal existence, were not recounted by the full 
 board of inspectors, and had not been in legal custody nor kept under effective 
 precaution, the committee rejected the recounts, holding that under the New York 
 law for the destruction of ballots there could be no legal recount and that in any 
 case no confidence could be placed in a recount made under such circumstances. 
 
 Noyes vs. Rockmll, 5M Cong Stofer, 28-30 
 
 Ballots must be the same and in the same condition. 
 It is well settled that before resort can be had to the ballots as means of proof abso- 
 lute proof must be made that the ballots offered are the identical ballots cast at the 
 election; that they had been safely kept as required by law, that they are in the 
 same condition they were when cast; that they had not been tampered with, and 
 that no opportunity had been had to tamper with them. The burden of making 
 this preliminary proof rests on the party who seeks to use the ballots as evidence. 
 
 English vs. Hilbom, Sod Cong Report 614, p. 4 
 
 Ballots must be so kept as to rebut a presumption of being tampered with. 
 In order to command confidence in a recount "it is necessary for the contestant, 
 first, to establish the identity of the ballot boxes; and, secondly, to show that those 
 boxes had been so kept as to rebut any reasonable presumption that they had been 
 tamiieivd with." 
 
 Butler vs. Lehman (minority report, xmtained by House), 37th Cong 1 Bart,, 358 
 
REOOUTS^T. 811 
 
 Identity and integrity of ballots must be shown. 
 "The law regards with jealousy and suspicion recounts of ballots and is slow to 
 sanction any change from results originally declared to results effected by such 
 recounts. The rules of law governing recounts of ballots are plain and positive. 
 Before courts or legislative bodies will give weight to results of recounts of ballots 
 it must be shown absolutely that the ballot boxes containing such ballots had been 
 safely kept; that the ballots were undoubtedly the identical ballots cast at the 
 election; and when these facts are established beyond all reasonable doubt, then 
 full force and effect are given to the developments of the recount." In this case 
 the committee found the evidence sufficient aad accepted the results of recounts, 
 which changed the result of the election. 
 
 Acklen vs. Darrall, 45th Cong 1 Ells., 132 
 
 " The temptation to tamper with and change the ballots after an election is so great, 
 especially when the election is close and a slight change will elect the one and 
 defeat the other candidate, that courts and the House have uniformly required the 
 party offering the ballots to overcome the official count made at tne time of the 
 election to show that the ballots have been kept strictly as required by law. Upon 
 the person offering the ballots is cast the burden of showing that the ballota offered 
 for recount are the identical ones cast at the election and have been in no way 
 tampered with or changed." 
 
 Wallace vs. McKinley {minority report) 4Sth Cong Mobley, 210 
 
 The returns of election officers are prima facie correct, and a recount showing a dif- 
 ferent result can not be regarded unless it affirmatively appears that the ballots 
 recounted are the same as those originally counted, and in the same condition. 
 Atkinson vs. Pendleton, 51st Cong Rowell, 47 
 
 In order to justify a recount it ought to appear that the statutory requirements have 
 been complied with "or clearly shown that the failure to comply therewith has 
 resulted in no injury. If proper care is not taken to so preserve the ballots that 
 they may not be changed they will always be the subject of a natural suspicion, and 
 when a material difference appears between the original count and the recount the 
 weight to be given to the recount must depend wholly upon the methods used in 
 preserving the ballots free from suspicion or opportunity to do wrong. In the con- 
 flict between the first and second count it is evident that the one or the other 
 does not show the true result. If every opportunity to change the ballots has 
 been prevented, and if the law in relation to a recount has been complied with, 
 the recount becomes entitled to the greater credit and should prevail. But if, on 
 the other hand, the ballots have been so kept that they may be readily changed, 
 our observation upon this committee would hardly justify us in indulging in the 
 conclusion presumptive that no one had been found wicked enough to make the 
 change." 
 McGinnis vs. Alderson, 51st Cong Rowell, 636 
 
 Ballots must be shown to have been safely kept, 
 "In order to sustain a recount the parties seeking the benefit of it must prove con- 
 clusively that between the time of the first and second count there was no oppor- 
 tunity given for tampering with the ballots. It is not in this case for the contestant 
 to show that the ballots might have been tampered with, but the contestee, who 
 relies upon the recount, must establish aflBrmatively that the ballots had been safely 
 kept, and that they had not been exposed to the public or handled by unauthorized 
 persons." 
 Dean vs. Field, 45th Cong 1 Ells., 212 
 
 Must be honest, fair, and correct, 
 "Recounts to be of value must be honest, fair, and correct. It must be shown that 
 the ballots were never out of the custody to which the law assigned them, and that 
 they must be free from the imputation that they could have been tampered with 
 by the party claiming under the recount." 
 
 English vs. Peelle, 4Sth Cong Mobley, 1 70 
 
81/} DIGEST OF CONTESTED ELECTION OASES. 
 
 Must have been condncted as carefully as the original count. 
 Thr House does not "favor the setting aside of official and formal counts, made with 
 all the safeguards required by law, on evidence only of subsequent informal and 
 unofficial counts without such safeguards." In no instance has a person entitled 
 to the seat by an official count been deprived of it by a subsequent unofficial count. 
 "On principle it would seem that if such a thing were, in the absence of fraud in 
 the official count, in any case admissible, it should be permitted only when the 
 ballot boxes had been so kept as to be conclusive of the identity of the ballots, and 
 when the subsequent count was made with safeguards equivalent to those provided 
 by law. In the absence of either of these conditions, the proof, as mere matter 
 of fact and without reference to statutory rules, would be less reliable and there- 
 fore insufficient." 
 
 Oooding vs. Wilson, 4M Cong Smith, 79 
 
 In Massachusetts, can be made by board of aldermen only when law strictly followed. 
 
 A statute providing that the board of aldermen, or a committee of their number, may 
 examine the ballots and "determine the questions raised," on the presentation of 
 a petition of 10 qualified electors stating that they have reason to believe that the 
 original returns are erroneous "and specifying wherein they believe them to be in 
 error," confers upon the board of aldermen, or their committee, a special jurisdic- 
 tion, and must be strictly construed, and such board of aldermen can not proceed 
 except in strict accordance with the provisions of the statute. If they assume to 
 act in a manner different from that prescribed by the statute their acts are abso- 
 lutely void. 
 
 A petition stating that the petitioners believe the returns to be in error in that there 
 were more votes counted for one candidate and less for the other than were cast for 
 •- him does not sufficiently "specify wherein they believe them to be in error," and 
 confers no jurisdiction. Such a statute does not make the board of aldermen a 
 general returning board, and does not contemplate a general policy of recounting 
 the ballots, or that a recount shall be granted merely because the vote is close. 
 And if the ballots are so recounted all the proceedings and the certification of the 
 result must be strictly in the form prescribed by the statute, otherwise the origi- 
 nal count made and returned by the precinct officers must stand. 
 
 The minority held that the petitions were sufficiently specific to confer jurisdiction; 
 that the law contemplated that the count made by the aldermen should prevail 
 oyer the original count, and, there being no evidence going behind the returns to 
 show the correctness or incorrectness of either count, the second count should 
 stand. 
 Dean vs. Field, 46th Cong 1 Ells., 190-223 
 
 Where ballots expoaod to danger of tampering, recount not accepted. 
 
 Where the ballot boxes had been privately opened, in some aises two or three times, 
 and the ballots handled and counted by a paid a^ent of contestant, and the boxes 
 had been otherwise exposed to the danger of bemg tampered with, the minority 
 held that no valid recount of such ballots could be made. 
 
 Frederick vs. Wihon (minority report), 48th Cong Mobley, 406, 419 
 
 Privately made, without due precautions, not considered. 
 A recount privately made by an unofficial person, where there was no proof of the 
 identity of the ballots and where it affirmatively appeared that they could have 
 been tampered with, was not considered. 
 
 Cook vs. CiiMs, 47th ( bng 2 Ells., 252 
 
 Privately made by agent of one of the candidates, not to be accepted. 
 A recount privately made by an unsworn agent of one of the candidates ought not to 
 lie permitted to overturn the sworn returns of the officera of election, especially 
 when no memoranda are presented and the testimony does not attempt to show 
 the vote of either candidate in any precinct or the changes in any precinct, but 
 merely the net result of the recount. 
 
 i. I'l-clk {iiiiiwrili/ repiirl), 4Sth Cong Mobley, 179 
 
RECOUNT. 813 
 
 Privately made, accepted where official recount prevented by contestee. 
 Where contestant had undertaken to have all the ballots recounted, but had/been 
 prevented by an injunction issued at the instance of contestee, the committee 
 accepted the result of a private recount of part of the precincts, made by an out- 
 sider during a recount of the votes on local officers, on the ground that contestee 
 had made this recount admissible by himself preventing an official recount from 
 being held. But the House agreed with the minority and voted to recommit the 
 case for a recount. 
 
 Rinaker vs. Downing, 54th Cong Keport 1400 
 
 When it showed the election of contestant he was seated. 
 Where the case had been recommitted to the committee for a recount of the ballots, 
 and the recount conducted under the direction and supervision of the committee 
 showed the election of contestant, the committee reported in his favor. 
 
 Rinaker vs. Downing, 54th Cong Report 2247 
 
 Votes gained on recount added to vote. 
 A recount of the ballots having been made, at which contestant gained 131 votes, the 
 committee added that number to his vote. 
 Booze vs. Rusk, 54th Cong Eeport 849 
 
 A reconnt of ballots where return discredited, proof aliunde of vote. 
 Where the ballot box had been taken away over night and counted the next day 
 the committee rejected the return, but accepted a recount of the ballots as proof 
 aliunde of the vote. 
 The minority held that, as the ballots were the very thing discredited, a count of 
 them was not proof aliunde of the vote. 
 Pearson vs. Crawford, 66th Cong Report 199 
 
 Parol evidence to correct original count. 
 The tally sheet was kept by an unsworn outsider and was the only actual count 
 made. Two witnesses swore that they watched the tally and that it was 16 votes 
 more than the returns showed. The tally keeper was not called as a witness. 
 The committee counted the extra votes; the minority dissenting. 
 
 Martin vs. Lockhart, B4th Cong Report 2002 
 
 Accepted to change the result of an election. 
 Where a recount of the ballots in one precinct, made six months after the election, 
 and during the taking of testimony in the case showed a change of enough votes to 
 overcome the sitting member's returned majority of one vote, and the committee 
 were satisfied that the ballots had not been tampered with, they accepted the 
 result of the recount. . 
 
 Archer vs. Allen, 34th Cong 1 Bart. , 172 
 
 Hade by ward officers, in Massachusetts, accepted. 
 Under the statutes of Massachusetts (in force in 1862) the ward officers had a right 
 to make an amended return, to correspond to the truth, within a certain time after 
 the election. This was held to include the right to ascertain the truth by a recount 
 of the ballots, and an amended return, based on a recount made seven days after 
 the election, was held to be legal. 
 
 Sleeper ya. Rice, 38th Cong 1 Bart., 476 
 
 Where ballots could have been tampered with, but were not, recount received. 
 Where the ballots had been kept unsealed in a trunk in the attic of the house of the 
 clerk of the ward, and had once been privately recounted by him without untying 
 the packages, but he testified that they had not been tampered with, and the coin- 
 cidences of the recount with the original tally sheets, after correcting mistakes 
 obvious on the face of the tally sheets, were such as strongly to confirm the recount 
 and to render the correctness of the first count very improbable, the result of the 
 recount was accepted. 
 Sleeper vs. Rice, 38th Cong 1 Bart, 477 
 
814 DIGEST OP CONTESTED ELEOTIOISr CASES. 
 
 To be received unless ballots shown to have been tampered with. 
 Where the conteatant produced boxes from legal custodians, sealed up and in the 
 same apparent condition as when left with the custodians, the majority (not 
 sustained by the House) held that under these circumstances the burden of proving 
 them to have been tampered with rested upon the contestee, and that it was not 
 enough to show merely a possihillly of their being tampered with. 
 Butler vs. Lehman {majority report), 37th Cong - 1 Bart., 357 
 
 Made by unauthorized person should be received unless impeached. 
 
 Recounts of the ballots made within a few weeks after the election by persons who 
 
 were unimpeached and credible witnesses, and in the absence of any evidence 
 
 tend'ng to show that the ballots had been tampered with, should have been 
 
 received to overthrow the official count made on the evening of the election. 
 
 Gooding vs. Wilson {minority report), 4Sd Cong Smith, 83 
 
 Made by unofficial person accepted if his capacity and veracity shown. 
 The value of a recount unofficially made by a private individual must turn upon his 
 capacity and veracity. " If these are both established, as much weight should be 
 given to his count as if he had been directed by the court to make it." 
 
 English vs. Peelle, 48th Cong Mobley, 171 
 
 Accepted if preponderance of evidence in its favor. 
 Where it is a question between the original count and a recount the preponderance of 
 evidence must prevail. 
 
 English vs. Peelle, 48th Cong Mobley, 173 
 
 Where large changes explained by circumstances, recount accepted. 
 Where a recount showed a change of over a thousand votes in five precincts, tut the 
 seals on the ballot boxes were intact, and it was shown that Republican tickets 
 were in circulation bearing the name of contestant or bearing no name for Con- 
 gress, and that the judges of election, not being aware of this fact, counted the 
 ballots hastily, crediting to contestee all ballots appearing to be straight Repub- 
 lican tickets, the committee counted the votes according to the recount. The 
 minority held that the evidence was insufficient to show that the ballot boxes had 
 not been tampered with, and that the recount could not be accepted. Part of the 
 minority held that the circulation of the " bogus" tickets at some polls cast doubt 
 upon the accuracy of the first count also, and thai neither count should be accepted. 
 
 AcldenMS. Darrall, 46ih Cong 1 Ells., 124-189. 
 
 Where ballots properly kept, and error in original count probable, recount accepted. 
 Where (in Iowa) there is no law providing for a recount, the only question before 
 the coBimittee is, Are they the same ballots as cast, and what is the correct count? 
 If the circumstances of the original count indicate error of a certain sort, and the 
 ballots being so kept that they could not have been tampered with, a recount 
 shows such error, it should be accepted. 
 
 Frederick vs. Wilson, 48th Cong _ Mobley, 403 
 
 Where original count fraudulent, recount accepted. 
 Where the original count was tainted with fraud, the result of a recount ma^' be 
 accepted in lieu of throwing out the poll. 
 Sullivan vs. Felton, SOlh Cong Mobley, 751 
 
 Where identity of ballots proved, recount accepted. 
 The result of a recount of the ballots conducted according to the State law was unani- 
 mously accepted by the committee, though the majority expressed some doubt as 
 to the sufficiency of the evidence showing the identity of the ballots. The minor- 
 ity held that the identity of the ballots was conclusively proved, and that they 
 were the best evidence of the vote. 
 
 Mudd vs. Compton, 51st Cong Rowell, 155, 164 
 
 KEJECTED VOTES. 
 
 See Votes, Illegally Reiected. 
 
REGISTRATION. 815 
 
 BEGISTBATION. 
 
 Required proof of qualification not_ presented by nonregistered voters. See Illegal 
 votes, required proof of qualification not presented at the polls. 
 
 May be made the necessary evidence of i^Qalification. 
 Where registration is not a constitutional qualification for voting it may be made the 
 necessary evidence of qualification. A registration list is presumed to be correct, 
 and the votes of persons whose names were not on the registration list were prop- 
 erly rejected. 
 
 McLean vs. Broadhead, 48lh Cong Mobiey, 386 
 
 Power of legislature to enact registration law. 
 "The right of suffrage is regulated by the States, and while the legislature of a State 
 can not add to, abridge, or alter the constitutional qualifications of voters, it may 
 and should prescribe proper and necessary rules for the orderly exercise of the 
 right resulting from these qualifications. It can not be denied that the power to 
 enact a registration law is within the power to regulate the exercise of the elective 
 franchise and preserve the purity of the ballot." 
 
 Goodrich vs. Bulloch {minority report), 51st Cong Rowell, 598 
 
 Purpose of. 
 "The intention of the legislatures of all the States in providing for registration lists 
 is to guard against fraudulent voting, to prevent colonizing and men without fixed 
 habitations from depositing their ballots wherever they may chance to be on an 
 election day, and to require residence sufficiently long in a community that the 
 voter may become known and regarded as a bona fide resident, and not a mere 
 floater or bird of passage." 
 
 Greevy vs. Scull, 52d Cong Stofer, 161 
 
 Where registration required, election invalid without it. 
 Under a law requiring the registration of voters in all towns of over 2,500 inhabit- 
 ants, the committee threw out the vote of a town of more than 2,500 population 
 in which no rejgistration was made. 
 
 Thrasher vs. Enloe, 53d Cong Report 842, p. 7 
 
 Effect of setting aside by governor, in Arkansas. 
 The governor of Arkansas had the power, under certain circumstances, to set aside 
 the registration of a county and order a new one. In some counties a new regis- 
 tration ordered by the governor had not been completed by the day of election, 
 and the county clerks refused to certify the returns of counties and precincts not 
 yet registered. The committee held that the governor "was not authorized to set 
 aside the old registration, except by making anew one," and did not "think that 
 a fair construction of this law can give the governor the authority to disfranchise 
 a county by setting aside the registration." The committee counted the votes as 
 shown by duplicate original precinct returns. 
 
 Gause\s. Hodges, 43d Cong Smith, 305,316,320 
 
 Imperative, in California. 
 The votes of persons whose names are not on the "Great Register" in California 
 were rejected by the committee. 
 
 Wigginion vs. Pacheco, 4Sth Cong 1 Ells., 13 
 
 Begistration not mandatory, in Alabama. 
 The constitution of Alabama does not make registration an absolute prerequisite for 
 voting, nor do the statutes of the State. 
 Lowevs. Wheeler, 47lh Cong 2 Ells., 76 
 
 Registration is required in Alabama, and unregistered votes should be rejected. 
 
 Lowe vs. Wheeler {minority report), 47ih Cong 2 Ells., 137-145 
 
816 DIGEST OF CONTESTED ELECTION CASES. 
 
 Esquirement of affidavits, in Iowa, directory. 
 " W'lierc the elector, acting in good faith and honestly supposing himself to be regis- 
 tered, deposits his vote, and the same is received by the judges, it is a vftlid vote. 
 But where the elector does not act in good faith, and knows he is not registered, 
 his vote should be rejected." The burden of showing the wantof good faith is on 
 the party attacking the vote. 
 
 Campbell vs. Weaver, i9lh Cone/ Mo))ley, 462 
 
 Bequirement of affidavits in Iowa, mandatory. 
 The statute of Iowa requiring an affidavit of unregistered voters is mandatory both 
 upon the officers of election and the voters, and both as to the production of the 
 affidavit and its contents. 
 
 Campbell vs. Wea ver ( minorily report ) , 49lh Cong Mobley, 472 
 
 In North Carolina registration transfers to newly established precincts shonld be 
 made without personal application. 
 Where two precincts in North Carolina which had been consolidated for several years 
 were again separated shortly before the election, and the judges of election at the 
 new precinct refused to receive the votes of voters who did not present certificates 
 that their names had been erased from the registry of the other precinct, the 
 majority of the committee held that they were properly rejected under the North 
 Carolina law. The minority held that the names should have been transferred 
 without personal application, or on personal application on the day of election, 
 and that the votes rejected should be counted. 
 
 Yeates vs. Martin, 46lh Cong 1 Ells., 389, 412 
 
 Transferred voters registered on election day, in Virginia. 
 Where voters were required to be registered at least ten days before the election, 
 except those having transfer certificates, who might be registered at any time, 
 including the day of election, the majority refused to count as illegal the votes of 
 transferred' voters registered on election day. The minority did not mention this 
 point, but excluded the votes in question as illegal. 
 
 Piatt vs. Ooode, 44th Cong Smith, 656, 682 
 
 When new certificate necessary under Florida law. 
 A new; certificate of registration is not a condition precedent to voting, under the 
 Florida law, when a voter has moved from one house to another within a voting 
 district. "While the law provides for issuing a new registration certificate to a 
 voter who has changed his residence, either within the precinct or to another one, 
 it does not require such a new certificate as a condition precedent to voting when 
 the change of residence is within the precinct or voting district. On the contrarv, 
 it expressly provides that a new certificate shall be necessary if the change of resi- 
 dence is from one voting district to another, thus implying that it shall not be 
 necessary if the change is not from one voting district to another. Indn^io unius, 
 exclusio alterius. ' ' 
 
 Goodrich vs. Bullock, 51st Omg _ _ Rowell, 585 
 
 Reregistration is not necessary in Florida when a voter has changed his residence 
 from one place to another in the same voting precinct. "While section 8 of the 
 act of June 7, 1887, may possibly admit of a different construction, we are inclined 
 to the opinion that a mere change of residence from one house to another in the 
 same voting precinct should not deprive an elector of his right to vote." 
 
 Goodrich vs. Bullock {minorittj report) , 51st Cong Rowell, 612 
 
 May be proved by parol evidence. 
 
 It was not necessary (in Virginia) to have introduced the registration lists to show 
 that rejected voters were in fact qualified. "The registration books in Virginia 
 are not public records to which verity can be attached. In fact, they are only 
 prima facie evidence that a man is a voter, and may be attacked by parol evidence 
 in various ways." Where the question at issue was whether the excluded person 
 was a qualified voter, not merely whether he was registered, the committee 
 accepted his own testimony that he was qualified. 
 
 Tliurp vs. Epes, 56th Cuiiij Report 428 
 
REGISTBATION. 817 
 
 The books shotild be introduced. 
 Where the qualifications of voters asked to be counted as unlawfully excluded were 
 shown by their own testimony, the minority held that the registration books 
 should have been introduced. The election officers (in Virginia) were not per- 
 mitted to receive parol evidence of qualification, and the party seeking to have 
 counted on a contest votes not cast must furnish proof of equal dignity. 
 
 Thorp vs. Epes (minority report), 55th Cong Report 428, part 2, p. 9 
 
 Can be shown by parol evidence. 
 The fact of registration can be proved l)y parol evidence. "Registration does not 
 create the right to vote, but it is an official memorandum of an existing right, and 
 parol evidence is as near the fact as the books. In fact, the books are made from 
 parol evidence." 
 
 Broivn vs. Sw(tnson, 55th Cong Report 1070, p. 7 
 
 No registration in a county, vote thrown out. 
 Where the State constitution provides that no person not registered shall be allowed 
 to vote, and there was no valid registration in one county, lidd that there was no 
 valid election and the returns from such county must be set aside. 
 
 Bisbee vs. Pinley, 47th Cong , 2 Ells., 188 
 
 No registration in a county, vote counted. 
 Where the governor failed to appoint a supervisor of registration for a county, and 
 there was consequently no registration as provided by law, but the election was 
 held under the old registration, and no harm appears to have been done, held 
 that the vote of the county should be counted. "The committee are clearly of 
 opinion that voters complying with all other requirements of the law can not be 
 disfranchised by the neglect of public officials to furnish them opportunity to reg- 
 ister." The committee were unanimous in this opinion. 
 
 Goodrich vs. Bulloch, 51st Cong Rowell, 585, 613 
 
 REGISTBATION LAWS. 
 
 Registration law of Missouri unconstitutional. 
 The registration law of Missouri, prescribing qualifications for voters not found in 
 the Constitution, is unconstitutional. Where names are stricken from the registry 
 without proper investigation and in disregard of the forms of law, voters should 
 not thereby be disfranchised. 
 
 McLean vs. Broadhead [minority report ) , 48l}i Cong Mobley , 394-399 
 
 Begistration ordinance of St. Louis invalid. 
 "The Constitution of the United States having declared that the legislatures of the 
 several States shall provide for choosing members of Congress, and the constitu- 
 tion of Missouri having authorized the general assembly, and that alone, to enact 
 a registration law," the registration law of the city of St. Louis, passed by the 
 municipal assembly as a city ordinance and never ratified by the legislature, was 
 held to be invalid. 
 
 Sessinghaus \s. Frost, 47th Cong ...2 Ells., 387 
 
 Begistration law for St. Louis constitutional. 
 The Missouri registration law of 1881 for St. Louis held to be constitutional, and that 
 the votes of persons whose names had been stricken from the list and duly adver- 
 tised according to law, and who had not applied to the board of revision for rein- 
 statement, were properly rejected by the election officers. 
 
 Frank vs. Glover, 50lh Cong Mobley, 655 
 
 Begistration law of South Carolina unconstitutional. 
 The registration law of South Carolina is unconstitutional, because it is not a reason- 
 able regulation of the right to vote, but is, under the pretense of regulation, an 
 abridgment, subversion, and restraint of thai right. Its unreasonable or restrictive 
 features are (1) that it does not provide sufiicient facilities for registration, and 
 leaves to the registering officer a dangerous discretion; (2) that it attaches the 
 penalty of permanent disfranchisement for failing for any cause to register for the 
 
 H. Doc. 510 52 
 
818 DTOEST OF CONTESIED ELECTION CASES. 
 
 first election at which the citizen would lie entitled to vote if registered; (3) that 
 it affixes a like penalty for parting with or destroying a registration certificate; 
 (4) that all applications for transfer or renewal of certificates must be made at the 
 county seat of the county where the original certificate was issued; (5) that when 
 the board of appeals has decided against an appUcant for registration, he may 
 appeal, but must give notice in writing within five days, and commence proceed- 
 ings in court within ten days thereafter, or be forever debarred from voting. This 
 is a special remedy with a fifteen days' statute of limitations; (6) that the super- 
 visor is given arbitrary power to strike names from the registry list without posting 
 the names and without notice to anybody. 
 The minority held that the law was reasonable and constitutional. 
 
 Miller vs. Elliolt, 51st Cong Eowell, 509-.515, 537 
 
 Under the constitution of South Carolina, which provided that every male person 
 otherwise qualified who had resided in the precinct sixty days should have the 
 right to vote, the committee held that the registration law of the State which 
 required all voters to be registered by July 1 preceding the election was in conflict 
 with this provision and was unconstitutional. 
 Johnston vs. Stokes, 54th Cong Report 1229 
 
 The constitutionality of the registration law of South Carolina being brought in 
 question, the committee said: "A majority of this committee has reached the con- 
 clusion that the voters of the district now in consideration, who were qualified under 
 the constitution of South Carolina, and who were rejected under color of the 
 enforcement of the registration law, are entitled to be heard in this contest. In 
 this conclusion no violence is done to the doctrine that 'where the proper authori- 
 ties of a State have given a construction to their own statutes that construction 
 will be followed by the Federal authorities.' While the supreme court of South 
 Carolina has not passed decisively upon the statute in question, the people them- 
 selves, the highest authority in that State, have decreed its disappearance from the 
 statute book." 
 
 Wilson vs. McLaurin, 54th Cong Report 1566 
 
 Contestant claimed that the registration law of South Carolina was unconstitutional, 
 
 and that votes rejected because of nonregistration should be counted. But as, 
 
 even on the most favorable construction of the law and the evidence, these votes 
 
 were too few to change the result, the committee did not pass on the question. 
 
 Moorman vs. Latimer, 54th Cong Report 626 
 
 Whether registration law of Alabama Tinconstitutional. 
 It was objected that the registration law of Alabama was in conflict with the consti- 
 tution of the State, and that all registrations under it were therefore unlawful. 
 But the committee did not consider the objection, calling attention to the fact that 
 no vote in this case was shown to be affected by the only point on which the law 
 could be claimed to be unconstitutional. 
 
 Goodwyn vs. Cohh, 54th Cong Report 1122, p. 5 
 
 Alabama registration law clearly unconstitutional. 
 The minority said on this point: "This statepient seems to be made on the idea that 
 an enactment may be unconstitutional as to a class of persons and valid as to all 
 others, and also that no one can attack an enactment as unconstitutional unless he 
 shall first be able to show that he has been injured by it. Our view is that as soon 
 as an unconstitutional enactment is presented to the court, in any way, which 
 affects the cause before it, it will be declared void, not only as to the parties liti- 
 gant, but as to all other persons. It is on this view that enactments similar to the 
 one now under consideration have been declared void by the supreme courts of 
 Pennsylvania, North Carolina, and other States of the Union. * * * That the 
 registration law was unconstitutional and void can not, we are confident, be seri- 
 ously doubted." 
 
 Ooodwyn vs. Cobb {minority report), S4th Cong Report 1122, part 2, p. 8 
 
 REPRESENTATIVES, aUALIFICATIONS OF, 
 
 See Qualifications of Representatives. 
 
RESIDENCE. 819 
 
 RESIDENCE. 
 
 What Constitutes. 
 
 Chiefly a question of intention. 
 "The question of domicile has been a fruitful source of difficulty to courts. It is 
 because no fixed or universal rule can be adopted for its test. The animus manendi 
 is the principal point looked to in the ascertainment of domicile. If the intention 
 to establish a permanent residence be ascertained, the recency of the establishment, 
 though it may have been for a day only, is immaterial. The intent is, in each 
 case, the real subject of inquiry, 'and the circumstances requisite to establish the 
 domicile are flexible and easily accommodated to the real truth and equity of the 
 case.' " 
 
 Lay, erth Cong 1 Bart. , 43 
 
 Actnal abode is prima facie residence. 
 To constitute residence there must be intention to remain, but this intention is con- 
 sistent with a purpose to change the place of abode at some future and indefinite 
 day. Actual abode is prima fa^e residence. 
 
 Miller vs. Thompson, 31st Cong 1 Bart., 120 
 
 Presumption in favor of actnal residence. 
 The presumption should be in favor of actual residence, as against a claimed intent 
 to return to an abandoned residence, when the intent only appears by the act of 
 voting. 
 
 Atkinson vs. Pendleton, 51st Cong Eowell, 56 
 
 "Where a man has his home," 
 The word "residence" used in the constitution of Pennsylvania is equivalent to 
 "domicile," not in the sense in which a man may have a commercial domicile or 
 residence in one country, while his domicile of origin and of allegiance is in another, 
 ^ but in the broadest sense of the term. Either word, as used in law, is incapable of 
 exact definition. " Inquiries into it are very apt to be confused by ta,king the tests 
 which have been found satisfactory in some cases and attempting to apply them as 
 inflexible rules to all. Probably the definition which is most expressive to the 
 American mind is that a man' s domicile is ' where he has his home. ' Two or three 
 rules, however, are well established. A man must have a domicile somewhere; a 
 domicile once gained remains until a new one is acquired; no man can have two 
 domiciles at the same time. With these exceptions, it will, we believe, be found 
 that nearly every rule laid down on the subject in the books, even if generally use- 
 ful, fails to be of universal application, and would be opposed to the common sense 
 of mankind if extended to some states of fact that may arise. ' ' 
 
 Cessna vs. Meyers, 4^d Cong ' Smith, 61 
 
 Presence and engagement in business snfBcient. 
 "In the opinion of the committee, 'having resided' simply means that a man shall, 
 in good faith, have lived in Illinois for twelve months, not as a mere itinerant or 
 visitor, but that he shall have been substantially engaged in business there during 
 that time." 
 
 Le Moyne vs. Farwell, 44th Cong Smith, 420 
 
 Both act and intention required. 
 "It takes both act and intention to constitute a residence. An intention to retain a 
 residence which has been left must be an intention actually to return to it and 
 reside in it." 
 
 Smith vs. Jackson, 5l8t Cong Howell, 28 
 
 Besidence to be more liberally construed for purposes of suffrage than for other 
 
 purposes. 
 
 A strict rule should be applied in the definition of the terms "residence" and 
 
 "domicile" where the rights of property, the law of descent and distribution, or 
 
 the law of the duty of the citizen or the subject to his government are involved. 
 
 But in regard to suffrage the strictness of the rule should not apply in our Govern- 
 
820 DIGEST OF CONTESTED ELECTION CASES. 
 
 ment. Under this principle a decision of a State court in regard to the residence 
 of paupers, made in a case arising under the statute providing for the support of 
 paupers by the township of their residence, was held not to be a binding precedent 
 upon the question of the voting residence of paupers. But the minority held it to be 
 conclusive. 
 Le Moyne vs. Farwell, 44th Cong Smith, 415 
 
 "Colonizers" do not acquire residence. 
 Where the law only required ten days' residence in the precinct, and persons came 
 into a ward ten days before the election under an agreement that they would be 
 furnished board and drinks on condition of voting a certain ticket, the committee 
 held that ten days' presence in the ward, under such circumstances, did not con- 
 stitute residence. 
 
 Howard vs. Cooper, 36th Cong _ 1 Bart., 282 
 
 Domicile of minor at home of his father. 
 Domicile of the father is domicile of the son during his minority, while the son is 
 under the control and direction cf the father. 
 
 Levy, S7th Cong 1 Bart., 47 
 
 Mast be intention to leave permanently to lose residence. 
 The committee, by a majority vote, adopted as a rule of decision " That an individ- 
 ual having the right of suffrage in Kentucky does not lose it by removal from the 
 State merely, but there must be evidence of his intention at the time he departs to 
 leave the State permanently, or proof of his permanent location elsewhere, to for- 
 feit his right as a voter. ' ' The House disagreed with the committee in regard to 
 some of the individual cases decided under this principle, but did not overrule 
 the general principle. 
 
 Letcher vs. Moore, SSd Cong C. and H., 749, 825, 844 
 
 lost by traveling with a circus. 
 Where a voter left the place of his residence to travel with a circus, saying he had 
 "left for good," but returned on election day and swore his vote in, the com- 
 mittee held that the vote was illegal. The minority held the evidence to be insuf- 
 ficient to overthrow the presumption of legality. 
 
 Wigginton vs. Facheco, 46th Cong - 1 Ells., 11, 25 
 
 A department clerk in Washington presumed to have lost his residence in Indiana. 
 The constitution of Indiana provided that " no person shall be deemed to have lost 
 his residence in the State by reason of his absence on the business of the State or 
 United States." A person who had been in the Government service at Washing- 
 ton for nine years offered to vote, and his vote was accepted by the election offi- 
 cers. The minority of the committee held: "To bring him within the exception 
 of the Indiana constitution above quoted, the onus was upon the contestee to show 
 the intent to return to reside, in order to overcome the opposite presumption aris- 
 ing from the fact of a continuing residence elsewhere for more than nine years." 
 Gooding vs. Wilson (tnmority report), 4~d Cong Smith, 86 
 
 Nonresidence not proved by mere statement of a witness. 
 The mere statement l)y a witness that a voter was or was not a resident, without giv- 
 ing facts to justify hi.s opinion, is not sufficient to throw out suCh a vote. 
 
 Gooding vs. Wilson, 4~d Cong Smith, 82 
 
 Temporary employment does not give residence. 
 Surveyors, whose families resided out of the Territory, who were in the Territory 
 merely for the purpose of working on a contract of surveying, who lived in tents, 
 and who left soon after the election, their return depending on the securing of 
 future contracts, were held not to be residents of the Territory. 
 
 ToddYS. Jayne, 38th Cong 1 Bart, 557 
 
RESIDENCE. 821 
 
 Of Laborees. 
 
 At the place of employment. 
 The votes of iourneymen mechanics and other laborers having no fixed and settled 
 residence, but remaining for the time where they could get employment, were 
 received when cast in the place of employment. 
 Letcher vs. Moore, SSd Cong C. and H., 752 
 
 The residence of journeymen mechanics and like laborers is the place where they 
 happen, for the time being, to be employed. (Cited, with approval, from Letcher 
 vs. Moore.) 
 
 Campbell vs. Morey, 48th Cong .■ Mobley, 226 
 
 May be acquired at place of employment. 
 "The habits of our people, compared with many other nations, are migratory. To 
 persons, especially young men, in many most useful occupations, the choice of a 
 residence is often experimental and temporary. The home is chosen with intent 
 to retain it until the opportunity shall offer of a better; but if it be chosen as a 
 home and not as a mere place of temporary sojourn, to which some other place, 
 which is more truly the principal seat of the affections or interest, has a superior 
 claim, we see not why the policy of the law should not attach to it all the privi- 
 leges which belong to residence, as it is quite clear that it is the residence in the 
 common and popular acceptation of the term." 
 
 Cessna vs. Meyers, 4^d Cong Smith, 63 
 
 "The statute which declares that employees of the State shall not thereby become 
 residents of the place where employed does not prevent their becoming residents 
 if they so elect. The presumption of nonresidence can be overcome by proof." 
 Atkinson vs. Pendleton, 51st Cong Rowell, 56. 
 
 Where the statute provides that no person shall be deemed a resident in any county 
 or district by reason of being employed therein by any corporation, such employ- 
 ment is not to be construed as preventing anyone from acquiring a residence at the 
 place of his employment. 
 
 Siniih vs. Jackson, 51st Cong Bowell, 32 
 
 Bailroad laborers may or may not gain residence at place of employment. 
 
 A person coming into an election district for the purpose of working on a railroad in 
 process of construction may or may not be a resident. The cases should lie deter- 
 mined by the following rules: 
 
 "First. Where no other fact appears than that a person, otherwise qualified, came 
 into the election district for the purpose of working on the railroad for an indefinite 
 period, or until it should be completed, and voted at the election, it may or may 
 not be true that his residence was in the district. Kin vote having been accepted 
 by the election officers, and the burden being on the other side to show that they 
 erred, we are not warranted in deducting the vote. 
 
 "Second. Where, in addition, it appears that such voter had no dwelling house else- 
 where, had his family with him, and himself considered the voting place as his 
 home until his work on the railroad should be over, we consider his residence in 
 the district affirmatively established. 
 
 " Third. On the other hand, where it appears that he elected to retain a home or left 
 a family or a dwelling place elsewhere, or any other like circumstances appear 
 negativing a residence in the voting precinct, the vote should be deducted from 
 the candidate for whom it is proved to have been cast." 
 
 Cessna vs. Meyers, 4^d Cong Smith, 64 
 
 Chiefly a question of intent. 
 "It may be, and often is, diflBcult to determine the home or domicile of a boatman, 
 or one who is constantly engaged in steamboating or on railroads, but as the law 
 contemplates every man has a domicile or residence, it is often only known to the 
 party himself. It is a question of intent, known alone to the party." 
 
 Frost vs. Metcalfe, 45th Cong 1 Ells., 290 
 
822 DIGEST OF CONTESTED ELECTION CASES. 
 
 Not acquired in place of temporary employment. 
 ' 'A temporary sojourner is not a resident within the legal sense of that term. A per- 
 son whg goes to a place for a specified purpose, and with the intention of leaving it 
 when that purpose is accomplished, does not gain a residence, however long he 
 may remain. It follows that such persons as went into any of the precincts in 
 question for the purpose of working on the railroad and with the intention of leav- 
 ing when the road should be completed had no right to vote. * * * Whenever 
 it appears that a person came into the precinct for the purpose of working on the 
 railroad, that he resided in a temporary habitation, and wag generally regarded as 
 a temporary inhabitant, and that he actually left very soon after the load was com- 
 pleted and soon after the election, his vote should be rejected." 
 
 Barnes vs. Aila-ins, 41st Gong 2 Bart., 771 
 
 Of Soldiers. 
 
 Can not acquire residence by being quartered in a place. 
 "The well-recognized rule of law * * * is this: That the fact that an elector is in 
 the Army does not disqualify him from voting at his place of residence; but he can 
 not acquire a residence so as to qualify him as a voter by being stationed at a par- 
 ticular place while in the service of the United States. ' ' 
 
 Wigginton vs. Pacheco, 46th Cong 1 Ells., 12 
 
 Under the law for the government of Michigan Territory, requiring citizenship and a 
 year's residence as a qualification for voting, held, that soldiers long quartered in 
 the Territory, but discharged from the United States Army less than a year before 
 the election, could not vote, their residence not beginning until the date of their 
 discharge. 
 Biddle and Richard vs. Wing, 19th Cong C. and H., .512 
 
 May be gained at barracks by reenlistment. 
 AVhere soldiers permanently garrisoned at a place voted there, the committee retained 
 the votes of such as had originally enlisted from that place or, having served one 
 enlistment, had reenlisted there, but deducted the others. The minority counted 
 all the votes. 
 
 Taylor vs. Reading, 41st Cong 2 Bart., 664 
 
 Of Soldibes in Soldiers' Home. 
 
 At their original place of residence, under Michigan decision. 
 
 Where the supreme court of the State of Michigan had, since the election, passed on 
 the legality of votes of inmates of the Soldiers' Home, and had decided that only 
 those could vote at the precinct in which the Home was located who were residents 
 of that precinct at the time of their admission, the committee followed this deci- 
 sion and threw out the votes for nonresidence. 
 
 Mr. Thomas, in a dissenting opinion, argued that the opinion, having been rendered 
 since the election, was either not retroactive, or, if retroactive, the subsequent 
 action of the people in amending the constitution so as to reverse the effect of this 
 decision was also retroactive. 
 
 Belknap vs. Richardson, 53d Cong Report 1946, part 1, p. 1 ; part 2, p. 1-6 
 
 Of Paupers and Prisoners. 
 
 Of paupers; in the place from which sent to the poorhouse. 
 Under the law of New York providing that "no person shall be deemed to have lost 
 or acquired a residence by living in any poorhouse, almshouse, hospital, or asylum 
 in which he shall be maintained at public expense," all the committee held that 
 the legal residence of paupers in the almshouse was the place of their residence 
 before entering the almshouse. The majority of the committee also held that, 
 " independent of all legislation, * * * by "the common law, living in an alms- 
 house or other place of public charity for any length of time would not create a 
 residence or give the pauper the rights of a resident in the town, ward, or city in 
 which such charity is situated." 
 
 Monroe vs. Jackson, SOlh Cong 1 Bart, 101 
 
RESIDENCE. 828 
 
 The committee held that paupers sent to the county poorhouse from other precincts 
 did not acquire a residence or the rifjht to vote in the poorhouse precinct. "Their 
 residerice at this place was not their own voluntary act, but the act of the public 
 authorities, who, for reasons of economy and convenience, sent them here that 
 they might bo supported at the public expense." 
 
 Covode vs. Foster, 4M Cong 2 Bart. , 609 
 
 Not acquired in poorhoase precinct. 
 The legal residence of a pauper is the place from which he entered the poorhouse. 
 Campbell vs. Murey (minimlij report), 48th Cong Mobley, 235 
 
 Besidenoe not acquired in poorhoase precinct. 
 In California, under the statute, the legal residence of a pauper is the precinct from 
 which he entered the almshouse. Paupers voting in the almshouse precinct are 
 not to be presumed without proof to have come to the county almshouse from that 
 precinct. 
 
 Sullimi) \!<. Felton, SOth Con;/.. Mobley, 765 
 
 Whether acquired at poorhouse precinct. 
 There are authorities for the opinion that a pauper can not acquire a residence at 
 the almshouse, and there are many strong reasons both for and against this opin- 
 ion. (For a full discussioi see the report quoted in full in this volume. ) 
 
 Cessna vs. Meyers, 4Sd Cong Smith, 65 
 
 May be acquired in the poorhouse precinct. 
 The committee, after reviewing the conflicting decisions of courts and committees, 
 held that the weight of authority was that a pauper in a county poorhouse might 
 acquire a voting residence in the poorhouse precinct, though another township 
 was liable for his support. The minority held that the weight of authority was 
 the other way. 
 
 Le Moyne vs. Farvell, 44th Cong Smith, 416^20, 425 
 
 "An inmate of a county infirmary who has adopted the township in which the infirm- 
 ary is situated as his place of residence is (in Ohio) a resident and voter in the 
 township in which the infirmary is situated." (Sturgeon r.s. Korte, 34 Ohio 
 St., 525.) 
 
 Wallace vs. McKinley (minority report), 4Sth Cong Mobley, 198 
 
 Campbell vs. Morey, 48th Cong Mobley, 228 
 
 Prisoner in jail does not acquire a residence there. 
 Where the only residence of a voter in the place where he voted consisted in having 
 been kept in jail there, the committee held that "he could not acquire a residence 
 * * * while in prison." 
 
 Wigginton vs. Faoheco, 46ih Cong 1 Ells., 12 
 
 Of Students. 
 Student votes legal. 
 The committee, by a majority vote, adopted as a rule of decision "that the residence 
 of young men from other States and counties at schools, academies, or colleges as 
 scholars or students is not such a residence as entitles them to the right of suffrage 
 in the county where they are for the time being, and that all such votes be stricken 
 from the poll book." The students were mostly theological students, at Center 
 College, Kentucky, were all of full age, had left their former homes with no inten- 
 tion of ever returning permanently, were generally supported by themselves or 
 their churches, but in some cases by their parents; they paid taxes, worked the 
 roads, and did militia duty in the college town. They all swore that they con- 
 sidered the college town their home, and that they had no definite intentions in 
 regard to residence after their educations were completed. They had most of 
 them spent their vacations at the homes of their parents, and had been heard to 
 speak of "going home" when going to the homes of their parents. Their votes 
 had been unanimously accepted by the election officers. The minority reported 
 in favor of allowing their votes, and the House sustained the minority. 
 Letcher vs. Moore, SSd Cong C. and H. , 750, 826-830, 844 
 
824 DIGEST OF CONTESTED ELECTION CASES. 
 
 Students of mature years, who were not supported by their parents, and who had 
 left their last residences animn non renertendi, and regarded the college town as 
 their residence, not having any definite intentions in regard to residence after the 
 completion of their studies, were held by the committee to be legal voters. 
 
 The minority held that, though they had left their last residences animo non rever- 
 
 tendi, they had not come to the college town animo manendi, and were consequently 
 
 not legal voters. The House sustained the majority on this point by the casting 
 
 vote of the Speaker. 
 
 Farlee vs. Runk, S9th Cong. A Bart., 91, and Report 310, Istsess., 29th Cong., p. 8 
 
 May be acquired in college town. 
 The fact that persons voting are students in a university does not of itself create any 
 presumption that they were not legal voters. Where there was no other evidence 
 against the legality of the votes, and the circumstances were such as to render it very 
 improbable that any students voted who were not legal voters, the committee unani- 
 mously refused to reject their votes. 
 
 ' vs. Mason, 46th Cong 1 Ells., 376 
 
 Students emancipated from parental control and having no other home may acquire 
 a residence in the town where they attend college. ( Very fully discussed and 
 cases cited. ) 
 
 Campbell vs.' Morey {minority report) , 48th Cong Mobley, 237-25 
 
 "Where young men have entirely severed their connection with the home of their 
 parents and are relying on their own resources, efforts, and means, having no fixed 
 determination as to their future place of abode, they may acquire a voting residence 
 in the place where they are attending college. 
 
 Worthington vs. Post, 50th Cong " _ . Jlobley, 652 
 
 May be acquired in college town, though presumption to the contrary. 
 " Residence is a mixed question of fact and intention. The fact without also the 
 intention is not sufficient of itself to establish a legal residence; and it is a well- 
 settled principle of the cases that one who leaves his home to go to college for the 
 purpose of an education does not from continuance there the required time gain a 
 residence. On the contrary, the very object of his stay raises a presumption 
 against such result." The question in the case of students is "whether they have 
 ever given up their last residence and undertaken to acquire another at the college. 
 To do so they must either directly have renounced their former home and assumed 
 the obligations of citizens in their place of adoption or done acts, open and acknowl- 
 edged, inconsistent with the one and assertive of the other. Everyone has a well- 
 recognized right to change his place of residence, and may do so if he proceed in 
 consonance with known principles." Where students testified that they had 
 made the college town their residence, and there was no evidence that this inten- 
 tion was not formed and acted on in good faith, the committee held that they 
 would not be justified under the state of the evidence in rejecting their votes. 
 
 ' vs. Parrett, 51st Cong Rowell, 190, 191 
 
 Students may or may not gain residence in college town. 
 "The fact that the citizen came into the place where he claims a residence for the 
 sole purpose of pursuing his studies at a school or college there situate and has no 
 design of remaining there after his studies terminate is not necessarily inconsistent 
 with a legal residence or want of legal residence in such place. This is to be 
 determined by all the circumstances of each case. Among such circumstances the 
 intent of the party, the existence or absence of other ties or interests elsewhere, 
 the dwelling place of the parents, or, in the case of an orphan just of age, of such 
 near friends as he had been accustomed to make his home with in his minority, 
 would of course be of the highest importance. 
 
 Cessna vs. Meyers, 4J(l Cong Smith, 63 
 
 Rarely acquired in college town. 
 Persons residing in a college town for the purpose of attending college do not, except 
 in wry rare instances, acijuire a voting residence there. ( \'erv fulh" tliscussed and 
 many preceileuts <'ited. ) 
 
 Caiii.phell vs. Maeey, 4sil> Cony Jloblev, 218-224 
 
RETURNS. 825 
 
 RESIGNATION. 
 
 See Qualifications of Representatives, and Vacancy. 
 
 RES INTER ALIOS ACTA. 
 
 See Evidence in other proceedings. 
 
 RETURNS. 
 
 As Evidence. 
 
 Which best evidence. 
 Where the return of a county, as forwarded to the governor, contained two more votes 
 for the sitting member than the return filed with the county clerk, and it appeared 
 by adding together the votes credited to all the candidates on tlie former return 
 that there were two more than the total number of votes certified to have been 
 given, the committee deducted two votes from the vote of sitting member. 
 
 Kelly vs. Harris, 13th Cong ._ 0. and H., 260 
 
 Precinct returns primary evidence. 
 "It is well settled that the primary returns of votes, made under State authority, 
 such as these division returns, are prima facie evidence of their legality, of thL' 
 number of votes cast, and the rights of the respective candidates." 
 
 Butler vs. Leiiinaii [minority report, sustained by House) S7th Cong 1 Bart., 358 
 
 Precinct returns better than county returns under certain circumstances. 
 The provision of the Alabama statute of 1868 empowering the county board to reject 
 votes or returns on proof of fraud or intimidation was characterized by the com- 
 mittee as "extraordinary, not to say dangerous," "yet it is believed by the com- 
 mittee that the action of such a board under the statute in question, and in 
 pursuance of the p(j wer conferred thereby, is to be regarded as prima facie correct, 
 and to be allowed to stand as valid until shown by evidence to be illegal or 
 unjust." But where it was shown that the board had not obtained the evidence 
 which they were empowered to obtain, by the statute, and had decided the case 
 upon a comparison of the poll book with registry lists shown to be exceedingly 
 imperfect, the presumption in favor of the correctness of the decision of the officers 
 of election in admitting the votes is stronger than that in favor of the action of the 
 canvassing board in throwing them out. 
 
 Norris vs. Hundley, 42d Cong Smith, 73 
 
 BetuTU higher evidence than tally sheet. 
 Under the laws of Iowa the returns made to the county auditor to be canvassed by 
 the county canvassers are higher evidence than the tally sheet. 
 
 Frederick vs. Wilson, 4Sth Cong Mobley, 402 
 
 Precinct returns better evidence than county returns. 
 "According to the law of Maryland, the duties of the presiding judges when assem- 
 bled at the county seat are purely ministerial. They are to add up the votes of 
 the precinct returns on the books of the polls and to certify the results of this addi- 
 tion to the governor. They can neither throw out votes certified by the [irecinct 
 judges nor return votes not certified by the precinct judges. It is presumed, of 
 course, that the presiding judges will do their work accurately, and that their 
 returns to the governor will contain a correct summary of the votes in their county. 
 This presumption is, however, merely a prima facie one, and I'au be rebutted at 
 any time by showing that these returns were, in fact, not a correct summary of 
 the precinct returns; and when this is done, the returns to the governor must be 
 disregarded and resort had to the primary evidence of the result of the election; 
 that is, to the precinct returns themselves." 
 
 Mudd vs. Compton, 61st Cong ' Rowell, 150 
 
82B DKiEST OF CONTESTED ELECTION CASES. 
 
 When unimpeached, better evidence than the ballots. 
 
 Where certain precinct returns were not forwarded for several days, owing to the 
 neglect of the secretary of state to furnish blanks, but there was no testimony to 
 show that the returns were incorrect, and there was oral testimony to their cor- 
 rectness, contestant claimed that their correctness should be established by pro- 
 ducing the ballots, as the best evidence. The minority of the committee said: 
 "The contestee has given the vote as cast in these three precincts, as found by the 
 officers who held the election, on an actual count of the ballots made 1)\- them as soon 
 as the polls closed. It is hard to conceive how it is possible for a new count of the 
 ballots by unauthorized persons long after the election would constitute higher evi- 
 dence of the true state of the vote in these precincts than we have already given. 
 It would be exactly the same character of evidence, but given by persons not 
 authorized under the laM' to make the count." 
 Donelly vs. Washburn {viinorili/ report), 46th Cong 1 Ells., .506 
 
 Kot oonclusive on the Honse. 
 Returns made by State authorities are prima facie evidence only and not conclusive 
 on the House. The power of the House to judge of returns is not confined to the 
 mere judging of the authenticity of the certificate of the final returning officer. 
 
 Spaulding vs. Meoil, 9th Cong C. and H. , 159 
 
 County return signed by majority of return judges (in Pennsylvania). 
 The committee were of the opinion that a county return signed by a majority of the 
 return judges was valid, and on a prima facie case conclusive, thouglTa minority 
 of the return judges protested and made out a different return. The minority of 
 the committee thought that it would be safer to allow a dishonest majority tempo- 
 rarily to deprive a duly elected candidate of his seat than to allow a dishonest ma- 
 jority to give the seat to a person not elected. The House sustained the majority. 
 
 Koontz vs. Coffroth {prima faeie case), S9th Cong 2 Bart., 29, 42 
 
 In New York, numbers on face of returns and not on sample ballots. 
 Under the New York law requiring a statement of the result to be made on the face 
 of the returns and sample ballots to be pasted on the back, with another statement 
 of the number of each sort cast written across them, the committee, in accordance 
 with the decision of the court of last resort of the State, counted the votes as writ- 
 ten on the face of the returns. 
 
 Noyes vs. Ilockwdi, BM CJong Stofer, 28 
 
 Discrepancy between tally sheet and return not conclusive of falsity of either. 
 Where there were conflicts between the tally sheets and the returns, the committee 
 examined all the circumstances and adopted whichever count appeared to be cor- 
 rect, but the mere fact of a discrepancy between the tally sheet and the return was 
 not considered conclusive of the falsity of the return. The minority followed the 
 tally sheet in all cases. 
 
 Taylor vs. Reading, 41st Cong 2 Bart., 661-698 
 
 A duly certified and recorded county return stands until shown not to represent the 
 true vote. 
 Where the record of a county board of supervisors, in California, showed a vote of 
 986 for a candidate and the certificate of the vote signed by the president and 
 clerk of the board and forwarded to the governor showed the same amount, the 
 committee held that this certificate and record imported verity, and that the burden 
 of proof was on tlie i>arty attacking it to show that it did not represent the true 
 state of the \'ote. Evidence of doubtful admissibility was presented. If admitted, 
 it showed that the vote, as taken down by the clerk of the board in his notes of 
 the proceedings, was 988, and that it had been changed to 986 on the minutes and 
 certificate by the clerk, in consultation with part of the members of the board, 
 ufter the adjournment. But the evidence did not show that 986 was not the true 
 vote, and rather indicated that it was, and the committee held the evidence insuf- 
 ficient to impeach the record. Mr. Springer, in a dissenting report, held that the 
 vote as found by the board, rather than that recorded and certified, was prima 
 facie correct, and that the burden of proof was on the party sustaining the accu- 
 racy of the altered record. 
 
 Wigghiion vs. I'arlicco, 45lh Cong 1 Ells., 7, 19 
 
EETURNS. 827 
 
 Only prima facie evidence. 
 "The precinct returns are merely prima facie evidence of the \'i)te, and may be 
 attacked, rebutted, or impeached by evidence from any source." 
 
 McDuffic vs. Davidson (minority report), 60th Cong Mobley, 599 
 
 A rebuttable prestunption of law stands behind them. 
 Eeturns are only prima facie correct, meaning simply that a rebuttable presumption 
 of law stands behind them. Their credit is greatly impaired where the election is 
 entirely under the control of one party. 
 
 English vs. Peelle, 4Sth Cong.. Mobley, 170 
 
 Presumed to be correct until the contrary proved. 
 "The action of a board of supervisors of election, when in due form, is prima facie 
 correct, and it must stand until it is shown by extrinsic evidence to be illegal and 
 unjust. The presumption is always against the comnffssion of a fraudulent or 
 illegal act and in favor of the honesty and correctness of the official acts of a sworn 
 officer." 
 
 Bromberg vs. Haralson, 44th Cong Smith, 358 
 
 Weakened when election officers of bad character. 
 "When public officers are shown to be corrupt men, their acts as officers are not 
 entitled to the same presumption of fairness extended to officers of unimpeachable 
 character. ' ' 
 
 Buchanan vs. Manning ( minority report ) , 47th Cong 2 Ells. , 321 
 
 "In considering the evidence with reference to particular precinct returns it is first 
 necessary to inquire by whom the election was held in order to determine what 
 weight should be given to the returns. Returns are, as a rule, prima facie evidence 
 of the result; but if the integrity of the inspectors is in anyway impeached, either 
 by showing that their character is such as to cast suspicion on their acts, or that 
 their belief is that frauds upon electi(ms are justifiable, or that the manner of their 
 selection was such as to indicate a purpose to procure a false statement of results, 
 then the returns lose much of the weight that would otherwise attach to them." 
 McDuffie vs. Turpin, 51st Cong Rowell, 264 
 
 Should be presented by authorized officer. 
 Where the returns, ballots, and other election papers of a county had disappeared, 
 and it was sought to prove the vote of a precinct by one of the original returns, 
 presented by an unauthorized person, but identified and it.s correctness sworn to 
 by the judges of election, the committee hesitated to accept the return as evidence, 
 but threw out the vote of the precinct on account of other evidence indicating 
 fraudulent action on the part of one of the judges of election. 
 
 Spencer vs. Morey, 44th Cong Smith, 444-447 
 
 Unidentified ballots not to be counted as returns. 
 Where a number of ballots, unaccompanied by any affidavits or other evidence, were 
 handed to the secretary of a political committee on election day, by him handed 
 to the county clerk, and by him certified as votes to the secretary of state, the 
 committee deducted them. 
 
 Bell vs. Snyder, 43d Cong Smith, 255 
 
 True return to be counted. 
 Where the return counted by the governor was made by an unauthorized person, 
 not based on a canvass of the precinct returns, and was false and fraudulent, and 
 the return made by the county clerk, based on a full canvass of the precinct re- 
 turns, showed a much less majority for the contestee, the committee held that if 
 the testimony establishing the facts had not been inadmissible because taken out 
 of time, the difference between the returns should have been deducted from the 
 vote of contestee. 
 Bell vs. Snyder, 43d Cong Smith, 256, 257 
 
828 DIGEST OF CONTESTED ELECTION CASES. 
 
 When Set Aside. 
 
 See oZso Election, when whole election set aside; Fraud; Irregularity; Intimidation; 
 Officers of election, disqualification of; and Not sworn.- 
 
 Tor gross irregularity. 
 A precinct return rejected by the county returning board, irregularly forwarded to 
 the governor, and showing important defects on its face, but counted by the gov- 
 ernor, rejected by the committee for this among other reasons. 
 
 Easlon vs. ScoU, Uth Cony C. and H., 276 
 
 If irregularity not sufficient to set aside returns under State law, allegation imma- 
 terial, 
 It being alleged that more votes were cast for petitioner in a town than were returned 
 for him, held, that inasmuch as this irregularity would not be sufficient, if, proved, 
 to set aside the vote of the town, under the laws of New York, where the contest 
 originated, the allegation was immaterial. 
 
 Van Rensselaer vs. Van Allen, 3d Cong C. and H., 74 
 
 For fraud, uncertainty, or bribery. 
 A return may be rejected and the entire poll thrown out (1) when the return is 
 proved to be false and the vote not proved aliunde; (2) where the irregularities 
 of the officers of election involve the result in uncertainty; (3) where the ballots 
 may have been tampered with; (4) where there has been general bribery, and 
 the bribed votes can not be separated from the honest ones. 
 
 Hurd vs. Rorneis (minority report), 49th Cong Mobley, 431 
 
 For fraud, irregularity, or disqualification of officers. 
 "An entire poll should always be rejected for one of the three following reasons: 
 (1) Want of authority in the election board;, (2) fraud in conducting the elec- 
 tion; (3) such irregularities or misconduct as render the result uncertain." 
 
 Reid vs. Julian, 41st Cong 2 Bart., 831 
 
 More votes than voters. 
 
 A return was sought to be set aside on the ground that more votes were returned 
 than there were qualified voters, as shown by the tax lists, and the House seems 
 to have sustained the charge and set aside the return. 
 Jaclcson vs. Wayne, Sd Cong C. and H., 47 
 
 Not set aside if possible to ascertain result. 
 An entire poll should never be rejected unless it is impossible to ascertain the result. 
 The proper course is not to reject the return and allow each party to prove the 
 legal votes, but to require the parties to prove the illegal votes, and reject these. 
 Covodews. Foster {minority report), 41st Cong 2 Bart., 613 
 
 Void if not made by officers required by law. 
 
 Where, from an examination of the various laws of Florida governing elections, it 
 appeared that the only officers authorized to make returns of Congressional elec- 
 tions to the secretary of state were the probate judges and (in certain contingen- 
 cies) the county clerks, the committee refused to count returns made to the sec- 
 retary of state by the precdnct inspectors direct. But they held that if any returns 
 of precinct inspectors were to be counted, all should be counted, which would 
 ]jrijdu('e the same result. 
 
 The minority held that, under the decision of the committee, returns of precinct 
 inspectors made to the secretary of state after the legal time should not be counted, 
 though returns made after the legal time by the proper oflicers were counted. 
 But the original tabulated statement of returns on which the certificate of election 
 was based having been put iu evidence by the contestant, he could not be heard 
 to object to counting all the votes included in it. Including those made by the 
 precinct inspectors. 
 Brockenbrough -vs. Cabell, S9th Cong 1 Bart., 79-87, and Eeport 35 
 
RETURNS. 829 
 
 Beceived too late. 
 Under a special statute of Pennsylvania requiring army returns to 1 le filed by Novem- 
 ber 10 and canvassed by November 15, held, that a return received between Novem- 
 ber 10 and 15, and regularly examined, should be counted, but one receiveil three 
 months later, substantially defective, not accompanied by a list of voters, not regu- 
 larly filed nor examined by the county judges, should be rejected. 
 
 Richards, 4th Cong 0. and H., 95 
 
 Where the law required the return to be made in October or (under certain circum- 
 stances) in November, and it was not made until May, the committee sent for the 
 original county returns, and these confirming the district return, the election was 
 held not to be invalidated. 
 
 Bard, 4th Cong C. and H., 116 
 
 Where, under the law of Georgia, returns were required to be transmitted within 
 twenty days after the election, and the result certified within five days thereafter, 
 held, that returns transmitted after the legal time could be counted by the House, 
 though not by the governor. 
 
 Spaulding vs. Mead, 9th Cong J C. and H. , 157 
 
 A law requiring the poll books to be returned to the clerk's office within a certain 
 time held to be directory merely, and that a failure to return them within the 
 required time would not vitiate the election, it appearing that the returns were 
 afterwards returned and filed and had been in the meantime in the hands of the 
 agent of the party asking for the rejection of the returns. 
 Draper vs. Johnston, SSd Cong C. and H., 712 
 
 The committee held that the provision of the Florida law requiring returns to be 
 made to the secretary of state within thirty days was only directory, and counted 
 all returns otherwise legal, though not received by the secretary of state until 
 after the thirty days. 
 
 Brockenbrough vs. Cabell, S9th Cong 1 Bart., 84 
 
 Where a precinct return was not received by the county managers until the day 
 after they had consolidated the return, and was not included in their return to the 
 governor, the committee unanimously counted the vote. 
 
 Sloan vs. Eawls, 43d Cong .Smith, 147, 168 
 
 Properly certified, to be accepted. 
 
 A return, if properly identified, to be accepted even if found in the possession of an 
 unauthorized person. 
 Spencer ws. Morey {minurity report), 44th Cong Smith, 467 
 
 No returns made, vote counted on outside evidence. 
 In a number of precincts from which returns were not made or not counted the 
 committee counted the vote on outside evidence, which in other precincts from 
 which returns were made they did not hold sufficient to overcome the returns. 
 
 McDuffiews. Turplii, 5Sd Cong Stofer, 53-62 
 
 Not transmitted, vote shown by record in clerk's office. ^ 
 Where, through the neglect of the town representative in the legislature, to whom 
 the town return had been legally intrusted, it was not delivered to the iState can- 
 vassing committee, but the record in the town clerk's office showed how the votes 
 were cast, the committee counted them as cast. 
 
 Mallary vs. Merrill, 16th Cong 0. and H., 331 
 
 Not signed. 
 
 The return from a precinct which gave a larger majority for the sitting member than 
 
 his total majority was not signed by the poll keepers. This was alleged as a ground 
 
 for setting the election aside, but the committee decided the case on other grounds. 
 
 Randolph vs. Jennings, 11th Cong 0. and H. , 240 
 
830 DIGEST OF CONTESTED ELECTION CA8ES. 
 
 Where one of the returns was not signed by the judge, as required by law, the com- 
 mittee were unanimously of the opinion that the objection to it on this ground 
 ouglit not to prevail. 
 Butler vs. Lehman, 37ih Cong 1 Bart., 354 
 
 An unsigned paper purporting to be a return is void. 
 
 BUbee vs. Finky, 47th C'onrj 2 Ells., 190 
 
 Where it was properly canvassed by the i:ounty canvassing board, and there is no 
 indication of fraud, it must be presumed to have been correctly received. 
 
 Bisbee vs. Fhiley {luinorlln report), 47th Cony 2 Ells., 230 
 
 Where poll books, tally lists, and returns were without signatures, and also where 
 the poll book \\as signed by the judges, the tally list by the clerks, and there was 
 no return proper, the committee refused to count the votes. 
 
 Fuller vs. Dawson, S9lh Cony 2 Bart., 133 
 
 An unsigned statement counted as a return by the county commissioners was 
 rejected by the committee. 
 Langsion vs. Venable, 51st Cong _ Rowell, 444 
 
 "The committee are of opinion that where the law requires the certificate to be made 
 by three officers, a majority at least must sign it to make the certificate evidence. 
 This is not a merely technical rule; it ia substantial, because the refusal or failure 
 of a majority of the board to sign the return raises a presumption that it is not 
 correct. ' ' 
 Niblack vs. Walls, 4Zd Cong Smith, 103 
 
 Not certified. 
 Where a poll book (in a riva race election) was not certified by any of the officers 
 of election, the committee rejected the votes, though they had been counted by 
 the county and State canvassing boards. 
 
 Chrisman vs. Anderson, S6th Cong 1 Bart., 334 
 
 The law of Kentucky requiring the poll book to be certified over the signatures of 
 the election officers is directory merely, and an uncertified return, especially when 
 it has already been counted by the county and State canvassers, ought not to be 
 rejected. 
 
 Chrisman vs. Anderson [minority report) , 36th Cong 1 Bart., 337 
 
 Where poll books ( in a viva voce election) were not certified to be correct b}' any 
 officer of election the precincts were rejected. "This objection is substantial and 
 not technical. The paper purporting to be a poll book from this precinct proves 
 nothing whatever. To admit such a paper as evidence would be to set aside all 
 rules and open wide the door for fraud." 
 Barnes vs. Adams, 41st Cong 2 Bart., 771 
 
 Cured by a certificate of their contents from county canvassers. 
 Where the law required the county commissioners to transmit to the secretary of 
 state "a statement of the whole number of votes given in their county for each 
 candidate," and the commissioners rejected certahi precinct returns because not 
 certified to by the inspectors, but transmitted a statement of the number of votes 
 for each party shown by the rejected returns, the committee held that this state- 
 ment cured the defect in the returns. 
 Lynch vs. Chalmers, 47th Cong 2 Ells., 356 
 
 Not cured by certificate of its contents from county canvassers. 
 A return not certified by the inspectors proves nothing, and its rejection by the 
 county conimissioners was proper. A certificate from the commissioners stating 
 the fact of its rejection and also the number of votes shown by it for each party 
 can not cure the defect. 
 
 Lynch vs. Chalmers {minority report), 47th Cong 2 Ells. 365 
 
RETURNS. 831 
 
 Omission of the word "junior" (see also Ballots) . 
 Votes cast for Silas Wright, junior, but returned by mistake of the inspectors as cast 
 for Silas Wright, were counted by the committee as cast, on proof of the facts. 
 Wright vs. Fisher, SM Cong C. and H., 518 
 
 Where votes shown by the evidence to have been cast for James Guyon, junior, were, 
 by mistake, returned for James Guyon, the House counted them as cast and seated 
 the petitioner. 
 
 Guyon vs. Sage, 16th Cong C. and H., 348 
 
 Where votes cast for Daniel Hugunin, junior, were, by mistake, returned for Daniel 
 Hugunin, the committee, on proof of the facts, counted the votes as cast, and the 
 seat was given to the petitioner. 
 Huguninvs. Ten Eyck, 19th Cong _... G. and H., 501 
 
 Evidence to Impeach. (See also Evidence and Fraud.) 
 
 "Before the official return can be properly rejected, there must be satisfactory proof, 
 that the proceedings in the conduct of the election or in the return of the vote 
 were so tainted with fraud that the truth can not be correctly ascertained from the 
 returns. In other words, the returns must be accepted as true until they are 
 clearly shown to be false." 
 
 Goodrich vs. Bullock {minority report), 61st Cong Rowell, 599 
 
 Outside partisan connt insufficient, 
 "It would be an exceedingly dangerous precedent to permit the actual returns as 
 made by the inspectors and sworn officers of election to be disregarded and 
 impeached by returns made out by irresponsible partisan workers at the polls." 
 McDuffie vs. Turpin, SSd Cong Stofer, 62 
 
 Evidence of voters not received until foundation laid by proof of fraud. 
 Where 124 voters testified that they voted for contestee in a precinct where he was 
 returned as receiving only 18, but there was no other evidence of fraud, the com- 
 mittee said: "But it may well be questioned whether such testimony as this ought 
 to be received to invalidate an election. It would be productive of unending frauds 
 and perjuries to permit parties to come forward after an election by ballot and 
 swear that they voted differently from what the ballots themselves exhibit. Espe- 
 cially must this principle apply under the system adopted in New Mexico, where 
 every ticket is numbered and the number also recorded in the poll books opposite 
 to the name of the voter. The only proof which ought to be admitted to establish 
 a fraud such as that charged in this case would be to show, by affirmative testi- 
 mony, that the judges, clerks, or some other persons actually withdrew the tickets 
 given by the voters and substituted others for them. Until this shall be shown 
 the oath of the voter should not be received to contradict the record and the ballots 
 themselves. The very nature of the ballot renders this principle a necessity; other- 
 wise every election ought to be tried over a second time by the oath of the voters 
 instead of the ballots deposited in the boxes in the presence of the officers and of 
 the public." 
 
 Otero vs. Oallegos, 34th Cong 1 Bart., 184 
 
 It seems to be implied in the argument of the minority report in Miller vs. Elliott 
 (as well as in several other minority reports in the Fifty-first Congress, though the 
 ruling is nowhere explicitly made) that the minority held the law to be that the 
 false or fraudulent character of the returns could not be proved in the first instance 
 by calling the voters or otherwise proving that the votes received bv a candidate 
 was larger than that returned for him, but that a foundation must first be laid for 
 this sort of proof by showing suspicious circumstances connected with the election 
 or count sufflciei;it to overthrow the presumption of the fairness of the returns. 
 MUler vs. Elliott {minority report) , 61st Cong Rowell, 571 
 
832 DIGEST OF CONTESTED ELECTION OASES. 
 
 Testimony of voters to overthrow return. 
 Where more voters testified to having voted for contestant than were returned for 
 him, and there was circumstantial proof of fraud, the committee rejected the 
 returns, and counted only the votes proved outside the returns for contestant. 
 Where the circumstantial proof of fraud was lacking, except the discrepancy in 
 the votes, the committee jireferred not to reject the return, but counted for con- 
 testant the extra votes proved for him. 
 
 WashbumxB. Voorhees, S9th Cong 2 Bart., 60-64 
 
 The committee, by a majority vote, adopted as a rule of decision "that votes 
 recorded upon the poll books as given to one candidate can not be changed and 
 transferred to the other by oral testimony." The minority reported that where 
 voters made oath that they had voted for one candidate, and their votes appeared 
 upon the poll book (the election being viva voce) as voting for the other, they should 
 be counted according to the testimony of the voters; and the House sustained the 
 minority. 
 Letcher VB. Moore, ZSd Cong C. and H., 750, 826, 844 
 
 Testimony of voters may be insufficient. 
 Where contestant called 12 more voters who swore they voted for him than were 
 returned for him, but at least 12 of the witnesses were either impeached or 
 showed that they did not really know for whom they voted, the committee unani- 
 mously disregarded the testimony. 
 
 Wrightys. Fuller [minority report), S2d Cong Report 136, part 2, pp. 6 and 7 
 
 Testimony of voters not sufficient. 
 Where in one precinct the contestant was returned as having received 35 votes, and 
 60 voters (or at least 55) swore that they had voted for him, the committee held 
 that "this does not constitute such proof of fraud as to require them to reject the 
 return, but they might properly add to it such votes as the contestant proves were 
 cast for him above the number returned." But it not being material to the result 
 of the present case, the committee made no count of them. The minority held 
 that an examination of the evidence showed it to be insufficient for any purpose. 
 Sloan vs. EawU, 43d Cong Smith, 150, 157 
 
 The testimony of voters as to how they voted may be overthrown by circumstances, 
 such as the illiteracy of the voters, rendering it impossible for them to know how 
 they voted, the circulation of mixed tickets, the improbability of the result appar- 
 ently shown, etc. 
 BisbeeYS. Finley {minority report), 47th Cong 2 Ells., 219 
 
 Testimony of voters may prevail over returns. 
 Where voters testified that they voted for contestant who were not returned as vot- 
 ing, or as voting for contestee, the committee counted their votes according to 
 their testimony. 
 
 Blair vs. Barrett, 36th Cong 1 Bart., 318 
 
 Evidence of voters sufficient. 
 Where the testimony of all the voters in two townships was taken and it appeared 
 that many more votes were cast for contestant and many less for contestee than the 
 returns showed, the committee were unanunous in counting the vote according to 
 the testimony and not according to the returns. The minority, however, held that 
 no fraud was proved. 
 
 Delano va. Morgan, 40th Cong 2 Bart., 171, 172, 179 
 
 \\'here contestee was returned as receiving only 475 votes at a poll, and he called 
 508 voters who clearly swore that they were legal voters and voted for him, and 
 proved 48 votes more by other testimony, the committee held that this sort of 
 testimony was admissible to show the incorrectness of the return. " In the judg- 
 ment of the committee the evidence of these witnesses is as full, complete, and 
 reliable as it is possible for human testimony to be given. It would be received 
 in any court of justice in the country and held sufficient to establish any fact in a 
 civil or even criminal case." 
 Eeid vs. Julian, 41st Cong 2 Bart., 828 
 
KETUBNS. 833 
 
 Where a larger number of voters than were returned as voting for contestant testified 
 that they voted for him, and the testimony of the ticket distributers indicated a 
 still larger number, the returns were rejected for fraud, and the vote counted 
 according to the proof. 
 
 Loive vs. Wheeler, 47ih Cong 2 Ells., 66-75 
 
 Where contestant was returned as having received 139 votes in a precinct, and 283 
 voters testified to having voted for him, and the testimony of persons who read 
 the tickets, saw them voted, and kept a list of the voters, showed that 377 votes 
 were cast for contestant; held, that this was sufficient to reject the return and count 
 only such votes as were proved aliunde. 
 Langslon vs. Venable, Slst Cong Rowell, 452 
 
 When Rejected, what Votes Counted. {See also Fraud, effect of. ) 
 
 Only votes proved aliunde counted. 
 Where the return is so tainted with fraud that the truth can not be deduced there- 
 from it should be rejected. "The proposition is too plain to admit of dispute; to 
 hold as true that which is so false and fraudulent that the truth can not be deduced 
 therefrom is to hold an absurdity. * * * But the rejection of a return does 
 not necessarily leave the votes actually cast at a precinct uncounted. It only 
 declares that the return having been shown to be false shall not be taken as true, 
 and the parties are thrown back upon such other evidence as is in their power to 
 show how many vcted, and for whom, so that the entire vote, if sufficient pains 
 be taken and the means are at hand, may be shown and not a single one be lost, 
 notwithstanding the falsity of the return." 
 
 Washburn vs. Voorhees, 39th Cong 2 Bart., 58, 62 
 
 "No legal voter is disfranchised by throwing out a fraudulent poll. The only effect 
 of such action by the proper tribunal is to destroy the prima facie character of the 
 return and to deny to the official acts of such officers the legal presumption of 
 correctness usually accorded to the conduct of faithful agents. The way is always 
 open to every candidate upon the trial of any contested-elected case to come for- 
 ward and prove the vote which he received at any and every assailed precinct." 
 Reid vs. Julian, 41st Cong 2 Bart, 832 
 
 "The returns of an election must be certified by the proper officers. If not so certi- 
 fied they prove nothing, and when offered in evidence, if objected to, they must 
 be rejected. * * * It does not, however, necessarily follow that the vote cast 
 at such election is lost or thrown away. An uncertified return does not pro!)« what 
 the vote was, that is all. The duly certified return is the best evidence, but if it 
 be shown that this does not exist we doubt not secondary evidence would be 
 admissible to prove the actual state of the vote. 
 
 "The failure of an officer, either by mistake or design, to certify a return should not 
 be allowed to nullify an election, or to change a result, if other and sufficient and 
 satisfactory evidence is forthcoming to show what the vote actually was." 
 McKenzie vs. Braxton, 4Sd Cong Smith, 25 
 
 Where the statute required the county returns to be signed by at least two of the 
 
 three county canvassers, and the State canvassers rejected a county return because 
 
 it was only signed by one officer, the committee sustained the action of the State 
 
 canvassers in rejecting the return, but counted the vote upon proof aliunde. 
 
 Norris vs. Handley, 4^d Cong '. Smith, 73 
 
 "In the absence of the certificate prescribed by law recourse will be had to the poll 
 lists, the ballots, or other returns, and if from these or any of them the result can 
 be ascertained, and there is no taint of fraud, effect will be given to the result pre- 
 cisely as though the certificate was present." 
 
 Gooding Ys. Wilson {minority report) , 4^d Cong Smith, 85 
 
 In one precinct it was shown by the testimony of the sheriff, who had seen the votes 
 counted, that at least 42 votes were given for sitting member, but the returns gave 
 him no votes at all. The coHimittee excluded the vote of the precinct. The con- 
 testant asked that he be allowed the vote returned for him and the sitting member 
 
 H. Doc. 510 63 
 
834 DIGEST OF COKTESTED ELECTION CASES. 
 
 the 42 votes additional, but the committee said: " It having been shown that the 
 
 return is fraudulent and false in a matter so material as the suppression altogether 
 
 of the whole of the sitting member's vote, it can not be received for any purpose." 
 
 Niblack vs. Walk, 4^d Cong Smith, 102 
 
 When a return is shown to be fraudulent only such votes as are proved aliunde can be 
 counted. 
 
 Lowe vs. Wheeler {minoriiy report) , 47th Cong 2 Ells., 155 
 
 When the evidence shows a return to be false, it is impeached and destroyed as evi- 
 dence. The vote may be proved by the voters, and no vote not proved can be 
 counted. (Cases cited. ) 
 Bisbee vs. Finley, 47h Cong 2 Ells., 180 
 
 If returns are shown to be fraudulent no correction can be made on the basis of the 
 returns. They must either be accepted as correct or rejected in toto. In the latter 
 case no votes not proved aliunde can be counted. 
 Bisbeevs. Finley {minority report) , 47th Cong 2 Ells., 233 
 
 Where the prima facie character of the returns is destroyed, only those votes proved 
 aliunde can be counted. 
 McDuffie vs. Davidson, 60th Cong Mobley, 598 
 
 Where the evidence shows a return to be false and not a true statement of the votes 
 cast, such return is impeached and destroyed as evidence. But the rejection of a 
 return does not uecessstrily leave the votes actually cast at a precinct uncounted. 
 The return being shown to be false, the parties are thrown back on such evidence 
 as it may be in their power to produce to show how many votes were cast, and for 
 whom. All the votes may thus be proved and counted, but if only a part is proved, 
 those proved are to be counted and the rest disregarded. 
 
 Featherston vs. Cate,51st Cong Howell, 103 
 
 Where the returns were rejected for fraud, and the only votes proved aside from the 
 returns were for contestant, held, that no others could be counted, for "it is evi- 
 dent that giving to contestee the vote not accounted for would be a direct encour- 
 agement to election frauds, as it would give him the benefit of every fraudulent 
 vote which his friends had made it impossible for the opposition to expose, even 
 after the proof clearly established fraud to such an extent as to destroy absolutely 
 the integrity of the official returns. In no case has such a rule been adopted." 
 Langston vs. Venable, 51st Cong Kowell, 465, 466 
 
 Where ballot boxes were proved to have been stuffed, the returns were rejected and 
 no votes counted except those proved or conceded aside from the returns. This in 
 spite of the fact that the excess of votes had been ' ' purged ' ' as provided for in the 
 statutes of South Carolina, for "such method of disposing of extra ballots is pro- 
 vided for mistakes, and not for frauds." 
 
 Miller vs. Elliott, 61st Cong Eowell, 525, 526 
 
 Where the ballot boxes had been stolen by an armed body of men, after the close of 
 the polls, the committee counted the yotes according to the evidence of the vote 
 cast. The minority found that the evidence was insufficient to establish the vote 
 received by each candidate. 
 
 Goodrichva. Bullock, 61st Cong Eowell, 592-594, 615 
 
 When returns are impeached they can not be received for any purpose, but only those 
 votes proved aliunde can be counted. "If the returns have been falsified by the 
 election officers it is a well-settled rule of law that they cease to have any prima 
 facie effect, and each party can only be credited with such votes at the box in ques- 
 tion as he may show by other evidence. This rule is one of long standing. It 
 works no hardship upon contestee which does not fall as heavily on the contest- 
 , ant. The contestant is required in the first instance to show the fraud in the return, 
 and then must follow that up by proving his vote; or, in some instances, the proof 
 of the fraud is connected with the proof of his vote." 
 
 Claytonva. Breckinridge, 61st Cong Kowell, 691 
 
RETURNS. 835 
 
 Where rejection would increase the evil, true vote determined approximately. 
 Where the ballots of a precinct were stolen and secretly returnert after having been 
 obviously tampered with, but the rejection of the. return would only increase the 
 evil done by the fraud, the committee said: " It is the duty of the committee to 
 ascertain, as nearly as may be, the true vote, that the right may prevail at least 
 approximately." 
 
 Moore vs. Funston, S3d Cong Report 1164, p. 10 
 
 Only those proved aliunde counted. 
 Where fraud was established by pr.oof that a large part of those returned as voting 
 did not vote, part of the committee rejected the returns entirely and only counted 
 such votes as were proved aliunde; others of the committee eliminated the number 
 of votes shown to be fraudulent and counted the remainder on the basis of the 
 returns. 
 Aldrich vs. Robbins, 54th Cong Report 572 
 
 Where returns impeached, votes proved aliunde counted. 
 " The universal rule of law is that where the evidence shows the returns to be false 
 and not a true statement of the votes cast, such return^ are impeached and destroyed, 
 but that the true vote may be proved by calling the electors whose names are on the 
 poll list as having voted at such election, and such votes as are proved by competent 
 evidence should be counted for each candidate. Fraud does not invalidate the 
 legal vote cast, but simply makes it necessary for those claiming the benefit of it 
 to prove the vote. The rule of rejecting an entire poll is not to be adopted if it 
 can be avoided." 
 
 Aldrich vs. Robbing (minority report), 56th Cong Report 327 
 
 Where rejected, unjust to count votes for only one candidate on proof aliunde. 
 Where the returns of a poll were proved to be false and fraudulent, and the general 
 testimony of the vote was very conflicting, and much of it impeached, the com- 
 mittee unanimously rejected the returns and refused to count any votes on this 
 general testimony. But contestee had called 308 voters, who testified that they 
 voted for him, and asked that these votes be counted. The committee held that 
 as these voters were very ignorant and might easily have been deceived, or per- 
 haps induced to swear falsely, the testimony was very doubtful. But even if it 
 were accepted the votes ought not to be counted, because it would be counting the 
 vote for only one candidate (there being proof that the other candidate received a 
 considerable number of votes, but no definite proof of the number), and would 
 be giving to contestee, already the beneficiary of the fraud, a larger majority than 
 was given him in the fraudulent returns. The minority held that the votes should 
 be counted, and referred to many cases to show that the evidence of the voter was 
 the best evidence of the vote. 
 
 FMey^s. Bisbee, 4Bth Cong 1 Ells., 87,110 
 
 ' ' Your committee admits that if there was no evidence other than the returns, they 
 being fraudulent and void, proving that the contestant received votes at said poll, 
 then it would be unquestionably right to count the vote clearly proven to have 
 been cast for contestee. But when the proof shows that a large number of votes 
 were, in point of fact, cast for one candidate, as for the contestant in this case, but 
 the number not being sufficiently certain to enable them to be counted, it seems 
 to your committee to be manifest injustice to count the votes of his opponent, 
 thereby increasing his majority to the full number of votes so counted. There is 
 no rule Of law or equity that will justify such action, but it would be a clear case 
 of uncertainty in the proof * * * and the entire vote must be rejected." 
 Finley vs. Bisbee, 4Sth Cong 1 Ells, 88 
 
 If a return is to be rejected, and votes counted for contestant, the contestee should at 
 least be given his well-defined party vote, which was cast for him. 
 
 on vs. Yenahle (minority report), 51st Cong Rowell, 489 
 
 AH votes not proved for contestant counted for contestee. 
 Where, in a case investigated by a subcommittee of the Committee on Elections, after 
 the death of contestant, more voters in four precincts testified to having voted for 
 contestant than were returned for him, the minority held that the truth of this tes- 
 timony, considering the character of the voters, was very doubtful, but that even 
 
836 DIGEST OF CONTESTED ELECTION CASES. 
 
 if the testimony were to be believed, all the votes in the precincts attacked which 
 were not proved to have been cast for contestant should be counted for contestee. 
 This rule should be applied because of the unfair manner in which the testimony 
 was taken and abruptly closed by the investigating committee, and because the 
 rules established in contested-election cases should not apply to an investigation 
 like this. 
 
 Ctayton\B. Breckinridge {minority report) , S 1st Cong Bowell, 781 
 
 Where proof aliande shows same results as return, votes counted. 
 Where "concerning the precincts wherein the irregularities were of so grave and 
 important a nature as to affect the validity of the returns, the secondary proof of 
 the actual votes cast shows a result not difiering from that shown by the returns," 
 the committee counted the votes. 
 
 Burns vs. Young, 4Sd Cong Smith, 181 
 
 Where county return fatally irregular, precinct returns counted. 
 Where the precinct returns were delivered to an unauthorized outsider, who kept 
 them some time, consolidiited them himself, and signed the names of the mana- 
 gers to the consolidated return, without their knowledge or consent, and this 
 return, showing the vote of the county unanimous for contestee, was forwarded to 
 the secretary of state indirectly and irregularly, the committee held that the con- 
 solidated return was of no value, and expressed the opinion that very little confi- 
 dence w^s to be placed in any of the returns. They, however, counted the pre- 
 cinct returns, except one which did not show in what county or precinct the election 
 was held. 
 
 Sloan vs. Bawls, 43d Cong Smith, 152 
 
 Where county return rejected, only precincts proved aliunde counted. 
 Where a county return was based on the votes of only three of the five precincts in 
 the county and had been rejected by the State canvassing board, the committee 
 counted only the precincts whose vote was proved aliunde. 
 Niblack vs. Walls, 4^d Cong Smith, 102 
 
 Where returns not eouclnsive, votes counted according to the ballots. 
 Where the precinct returns did not show for what office votes cast for contestant and 
 contestee were given, and the county clerk had refused to certify the vote to the 
 secretary of state, but the ballots themselves had clearly shown that the votes 
 were cast for Congress, the committee counted the votes. 
 
 Bell vs. Snyder, 4Sd Cong Smith, 255 
 
 Must be shown to have been counted before they can be deducted from total result. 
 Where returns are asked to be rejected for irregularity, it must be shown "(1) that 
 the votes embraced in these returns were actually counted, and (2) that it was 
 unlawful to count them." The mere fact that these returns are on file with the 
 secretary of state or the county prothonotary is not evidence that they were included 
 in the canvass. "While it might well be claimed that the presence of regular 
 returns in these offices would be prima fade evidence that they were embraced in 
 the canvass, how can it be sard that the presence of irregular returns would be 
 prima facie evidence that they were counted?" 
 
 Fuller vs. Dawson, S9ih Cong 2 Bart., 134 
 
 Where return stolen and ballots altered, votes counted on proof of contents of original 
 
 return. 
 
 Where the seal of the box containing the returns and ballots of a precinct had been 
 broken open after the delivery of the box to the county canvassers, the return 
 abstracted and the ballots altered so aa to show a practical reversal of the vote, 
 and the county canvassers counted the ballots in the box and canvassed the vote 
 according to them, the committee counted the vote according to the proved con- 
 tents of the original returns. 
 Mackey vs. O'Connor, 47th Cong 2 Ells., 568 
 
EETTTRNS. 837 
 
 When Eejected, What Evidence Required to Establish the Vote Aliunde. 
 
 Legality of votes mnst be proved. [See also Evidence. ) 
 Where a return was rejected because of proof that illegal votes had been received 
 with the fraudulent connivance of the officers of election, heM, that proof aliunde 
 of the actual number of votes cast for each candidate was not sufficient; there 
 must be proof of the number of legal votes cast. 
 
 Finley vs. Walls, Uth Cong Smith, 389 
 
 Where retiirns rejected for frandnlent voting, proof of the vote aliunde mast fully 
 show qnalifications of voters. 
 Where there was no legal registry in a precinct and the return was rejected l)ecause 
 of frauds made possible by the lack of registry, the committee were, "however, of 
 opinion that it was competent for either contestant or sitting member to prove the 
 casting of legal votes at this poll, even without a register; but, in such case, the 
 voter must make special proof of his qualification to vote in a manner particularly 
 pointed out in the statute. ' ' But no such proof being made, and the fraudulent 
 transactions upon which the return was based being such that no presumption of 
 the legality of any vote could arise from them, the whole vote was excluded. 
 
 Dodge vs. Brooks, 39 Cong 2 Bart., 85 
 
 Co&tentB of rejected returns must be fully proved. 
 Where in several counties it was charged that the abstracts of the vote made out by 
 the county clerk represented only part of the vote of the county, the committee 
 held that the abstracts, having been regularly certified and transmitted and acted 
 upon by the State authorities, were prima facie evidence of the vote, and the con- 
 testant having produced no precinct returns or other sufficient evidence of the vote 
 of any precincts that may have been omitted, the vote as counted was allowed to 
 stand. The minority held that precinct returns having been unlawfully rejected 
 by the county clerks, under fraudulent instructions from the attorney-general, and 
 a complete abstract being in each case in evidence and proved to be correct, the 
 vote was suflBciently proved and should be counted. 
 
 Oause vs. Hodges, 43d Cong Smith, 291-322 
 
 When return rejected, vote may be counted upon any evidence sufficient to show it. 
 "Upon the impeachment of the return, the party relying on it may show the true 
 vote by other evidence. This may be done by a recount of the ballots or by the 
 testimony of the voters or of anyone who was present at the election and is able 
 to establish the true result. When this can not be shown no vote from the pre- 
 cinct for any of the candidates can be counted." 
 
 Hurd vs. Romeis {minority report), 49th Cong Mobley, 431 
 
 Parol evidence of vote inadmissible when documentary evidence accessible. 
 "In the absence of any evidence of the loss, destruction, or inaccessibility of the 
 returns, parol evidence as to what the vote was should not be considered. * * * 
 In the absence of any legal evidence as to how the vote was counted from a pre- 
 cinct by the county canvassers in canvassing the vote of the county, the evidence 
 of the voters as to how they voted is immaterial." 
 Smalls vs. Elliott, 50th Cong Mobley, 665 
 
 Identity of names prima facie evidence of identity of persons. 
 Where it was shown that persons voted for the sitting member whose names were 
 the same as names found on the register of those persons who had elected to retain 
 their Mexican citizenship, the committee held that this ^sas prima fade evidence 
 that the persons voting were Mexican citizens and sufficient to shift the burden of 
 proof. In the absence of contradictory testimony the votes were shown to be 
 illegal, without further proof of the identity of the voters and the persons on the 
 list of Mexican citizens. 
 
 0(ero vs. Oallegos, S4th Cong Report 90, pp. 4-6 
 
838 DIGEST OF CONTESTED ELECTION CASES. 
 
 Where identity of voters not clearly shown. 
 Where it was proved that persons of the same name as those voting had been natu- 
 ralized since the election, and that the voters had refused to obey the subpoena of 
 the commissioner to testify in "the case, the committee held that they were proved 
 to be illegal. The minority held that the identity of the voters was not shown. 
 Wright vs. Fuller, SSd Cong 1 Bart., 159; and Report 136 
 
 Where returns rejected by county canvassers counted only on extrinsic proof of 
 
 correctness. 
 
 "Mistakes and errors of the election officers in declaring the result and making the 
 
 returns will not vitiate the election." Where the county boards had rejected the 
 
 votes of a large number of precincts on technical grounds, the committee, "out of 
 
 extreme caution," counted only those shown by extrinsic proof to be correct. 
 
 Craig vs. Shelley, 4Sth Cong Mobley, 373-376 
 
 Vote at "side polls" indication of vote, 
 Where the ballot box in a precinct had been stolen after the polls were closed and 
 before the votes were counted, but the poll list wae in evidence, showing the 
 number of votes cast, and the number of votes cast at an informal side-election 
 held at the same poll, at which substantially all the Democratic voters voted, was 
 also in proof, the committee counted for contestee the number of Democratic votes 
 shown by this ■ side-election and for contestant the remainder of the votes shown 
 by the poll list. The minority held that this evidence of the vote was insufficient. 
 
 Goodrich vs. Bullock, 51st Cong Rowell, 592, 615 
 
 Conflicting evidence of election officers insufficient when returns lost. 
 Where no returns appeared to have been made from a precinct and all the ballots 
 and other election papers of the county, except the poll list of this precinct, had 
 disappeared from the clerk's office, and it was sought to show the vote of the pre- 
 cinct by the poll list and the testimony of the judges of election as to how the 
 votes were cast, but the testimony of the judges varied by two or three votes, the 
 committee said: "The uncertain memory of two or three witnesses as to the result 
 of an election six months after it took place can not be permitted to take the place 
 of the testimony of the voters themselves." And in this case the fact that part of 
 the time the votes had been called and part of the time the tally sheets had been 
 kept by unsworn outsiders further weakened the testimony to such an extent that 
 it could not be considered evidence of the vote. The minority held that if con- 
 testant were given the largest number testified to for him and contestee the least 
 number testified to for him, contestant would have no right to object. 
 
 Spencer vs. Morey, 44th Cong Smith, 448 
 
 Where the evidence of the vote of a precinct from which the returns were lost was 
 the testimony of one of the judges from memory, and evidence that another judge 
 had made an affidavit immediately after the election stating the vote, but the affi- 
 davit was not produced, and the testimony and the proved contents of the affidavit 
 agreed in giving 7 votes to contestant and the remainder to contestee, but did not 
 exactly agree as to the total number of votes cast, the committee held the evidence 
 to be insufficient to establish the vote. The minority held that it was sufficient. 
 Spencer vs. Morey, 44th Cong Smith, 449 
 
 Testimony of election officers adds little weight to the returns. 
 Where the contestee attempted to rebut the evidence offered by recounts of the ballots 
 by calling the election officers who made the precinct returns to testify that those 
 returns were correct, the majority (whose report was not sustained by the House) 
 expressed the opinion that "this testimonj' neither impairs the case of the con- 
 testant nor strengthens that of the respondent. Officers who had declared upon their 
 official oaths that returns made by them were true would not be likely to come into 
 court afterwards and swear that they were false. ' ' 
 
 Butler vs. Lehman {majority report), S7th Cong 1 Bart., 357 
 
 " When the official act of one holding public place is rejected because he has violated 
 
 the law and neglected his duty, what he himself says to sustain this act is entitled 
 
 to little credit. The same evidence which impeaches his official acts will also 
 
 impeach his unofficial declarations." 
 
 Ilurd vs. lioDicis (minority report), 49th ( 'ong Mobley, 433 
 
RETUEN9. 839 
 
 Where "the officers of election violated their official oath and the penal statute of 
 the State, and shamefully disregarded their duties which they had sworn to per- 
 form" the commitee did "not think any testimony given by them in this case 
 uncorroborated by other evidence is entitled to much weight." 
 
 Bisbee vs. Finley, 47th Cong 2 Ella. , 179 
 
 Testimony of election officers not weakened by charges of frand. 
 The testimony of election officers can not be discredited merely by charging them 
 with fraud. 
 
 Butler vs. Lehman [minority report, sustained by House), 37th Conjr. .Report 6, p. 26 
 
 Testimony of election officers the strongest possible evidence. 
 "If a return, local or general, be attacked for fraud or illegality, the testimony of 
 officers holding the election is of great weight, because of opportunities to know, 
 and the motive of duly to observe all things relating to the election in their charge; 
 and such is the weight of their evidence that it can not be overthrown by circum- 
 stantial evidence unless so strong as to admit of no reasonable hypothesis com- 
 patible with the truthfulness and integrity of the officers." 
 Bisbee vs. Finley (minority report), 47th Cong 2 Ells., 203 
 
 When returns lost, evidence of officers of election received. 
 When returns are shown to have been lost, the evidence of the officers of election 
 may be received to show what their contents were. 
 Spencer VB. Morey (minority report), 44th Cong Smith, 480 
 
 Ballots best evidence. 
 The best evidence of the true state of the vote of a precinct is the ballots themselves, 
 when they have been properly preserved. 
 McLean vs. Broadhead (minority report), 4Sih Cong Mobley, 389 
 
 ' ' The committee are of opinion that where the ballots themselves cast at any election 
 are preserved, they will furnish the best evidence of the number of votes which 
 each candidate received. And it seems that the laws of Pennsylvania contemplate 
 that in case the division returns are disputed the ballots themselves shall finally 
 settle the question." 
 Butler vs. Lehman (majority report), 37th Cong 1 Bart., 355 
 
 The ballots are higher and better evidence than the poll list. 
 
 McDuffie vs, Davidson, 60th Cong Mobley, 598 
 
 Sallots best evidence of vote, and must be produced. 
 The ballots are the best evidence of the vote, and when they are accessible no other 
 testimony as to the vote can be received until they are produced. 
 
 Craig vs. Shelley (minority report) , 47th Cong 2 Ells., 48 
 
 The ballots, when preserved, are the best evidence, and secondary evidence should 
 not be received if the ballots were accessible and not produced. 
 McDuffie vs. Davidson, 50th Cong Mobley, 579 
 
 Where fraud in count charged, ballots best evidence. 
 Where it was charged that the returns at many precincts did not represent the cor- 
 rect vote, and it was sought to establish this fact by oral testimony that many 
 more voters voted for contestant than were returned for him, the committee held 
 that the ballots should have been introduced in evidence as the best evidence of 
 the correctness or incorrectness of the count. 
 
 McDuffie vs. Turpin, SM Cong Stofer, 62 
 
 Where frand proved, ballots not primary evidence. 
 
 Where it was proved, to the satisfaction of the minority, that many returns were 
 
 false, evidently as the result of fraud on the part of the election officers, they held 
 
 that the poll lists and ballots had lost their primary character as evidence, and 
 
 other evidence of the state of the vote was therefore admissible without first pro- 
 
840 DIGEST OF CONTESTED ELECTION CASES.. 
 
 ducing these papers. It would be absurd to be required to establish any facts in 
 regard to the election' by the papers in the custody of the very officers who com- 
 mitted the fraud. 
 McDuffie \'s. Tarpin (minority report) , BSd Cong Stofer, 102 
 
 Where ballots themselves attacked, voters' testimony admissible. 
 " Where the integrity of the ballots themselves is questioned, as in the case here, 
 the testimony of the voters who cast the ballots as to who they voted for is always 
 admissible for the purpose of throwing light, if possible, upon that particular 
 question." 
 
 English vs. HUbom, S3d Cong Keport 614, p. 7 
 
 Ballots best and primary evidence. 
 "When the ballots have been safely preserved, as required by law, they become the 
 best and primary evidence as to how the elector voted, and the testimony of the 
 voter is secondary and inadmissible. The ballots are not only a part of the elec- 
 tion returns, but are of a higher grade of evidence than the tally papers or a sum- 
 mary made from them. To permit voters to come up after an election, as in this 
 case, and swear they voted differently from what the ballots show, would open up 
 a field of unending perjuries and frauds. If such should be the rule, every elec- 
 tion might be tried over a second time by the oath of the voter instead of the bal- 
 lots deposited in the ballot box. A mistake in the count or in tallying the vote, 
 or an impeachment of the returns or tally papers, even for fraud, do not, of them- 
 selves, discredit the ballots. To them the law points as the source to correct all 
 such errors and mistakes. ' They commit no perjury and can not be bribed." 
 
 English vs. Hilborn {minority report) , 5Sd Cong RepDrt 614, p. 12 
 
 Ballots best evidence, when returns rejected. 
 Where it was charged that the returns were false, the minority held that this fact 
 should have been shown by the ballots themselves. ' ' It needs only to be stated 
 that the ballots themselves constituted the best and only admissible evidence until 
 explanation was made as to why they were not and could not be introduced." 
 The minority, however, agreed to the rejection of 9 returns on other evidence. 
 
 Aldrich vs. Bobbins, 54th Cong Report 572 
 
 Under Australian law, ballots not best evidence. 
 
 "The rule, whatever it is, on the subject of the ballots being the primary and best 
 evidence in contested-election cases grew up and was established long before the 
 adoption of the Australian or reform ballot law by any State of the Union. Formerly 
 the ballots were furnished by the respective parties and distributed to the voters 
 outside of the polling places. "The illiterate voter received his ballot away from 
 the polls, and took it to some person or persons in whom he had confidence, per- 
 sons of his own selection, and had it made out according to his own direction. 
 This was his own voluntary act. Even after his ballot had been prepared for him 
 at his own solicitation, if he had any doubt in his mind as to it being according to 
 his wish, he could expose it to some one else to more fully satisfy himself that it 
 was as he desired. He took his ballot to the polling place and saw that it was 
 deposited in the box. All this was his own voluntary action. Nothing compul- 
 sory about it. Upon such a state of facts, and under such circumstances, it could 
 be well said that he had voluntarily reduced his intention and his action to writ- 
 ing, and that his written expression of what he did and intended, the ballot, was 
 the best evidence. It was under this system of voting that the rule of the ballot 
 being the best evidence grew up. 
 
 "A different system of voting exists now almost everywhere, and especially in Califor- 
 nia. The political parties no longer furnish their own ballots. An oflScial ballot is 
 furnished. It is retained inside the polling place; none are allowed outside. The 
 voter must pass inside of the polling place and obtain his ballot from an official of 
 the election board. If he is illiterate, or from any cause he is unable to make out 
 his ballot, some member of the election board makes it out for him. He may or 
 he may not have confidence in the official who prepares his ballot. The prepara- 
 tion of his ballot is not his free and voluntary act. It is compulsory. He must 
 submit to having some one not of his own selection — some person who may be a 
 stranger to him — prepare his ballot for him, or he can not vote. This is especially 
 so in California. * * * 
 
RETURNS. 841 
 
 "In view of the different plans and methods now in use in the conduct of elections 
 from those employed when the rule that the ballot, if properly preserved, is the 
 best evidence, was adopted, the committee suggests whether that rule ought not 
 now, in some degree at least, to be relaxed." 
 
 English vs. Hilbom, 53d Cong Report 614, pp. 7, 8 
 
 Ballots evidence of the vote. 
 Where a return was rejected because the ballot box was taken away over night and 
 counted the next day, the committee accepted a recount of the ballots as proof 
 aliunde of the vote. 
 The minority held that as the ballots were the very thing discredited a recount of 
 them was no proof aliunde of the vote. 
 
 Pearson vs. Crawford, 56th Cong Report 199 
 
 Discredited ballots inadmissible for any purpose. 
 Where a large share of the ballots in the boxes were shown to be fraudulent, the 
 committee held that they could not Jdc received as evidence, even to show for whom 
 the fraudulent ballots were cast. They were tainted for all purposes. 
 The minority held that they could be received as a guide in purging the poll of fraud, 
 as, though fraudently deposited, they had probably been correctly counted. 
 
 VanHomvs. Tarsney, 54th Cora;/.. Report 355, parti, p. 18; part 2, p. 2; part 3, p. 2. 
 
 Ballots in a frandnlent box no evidence bow vote cast. 
 "Returns which are impeached are good for no purpose whatever.'' It is absurd to 
 attempt to prove for whom illegal votes were cast by the numbered ballots in a 
 box, when the ballots are shown to have been fraudulently numbered, and the 
 whole conduct of the election officers was fraudulent. 
 
 Le Moyne vs. Parwell (minority report), 44th' Cong Smith, 423 
 
 "A party to a judicial proceeding is bound to produce the best evidence the nature 
 of the case admits of, or, if not produced, to account for its absence." Where a 
 party claims to have been defrauded of votes actually oast for him, the best evi- 
 dence would be the testimony of the men who committed the fraud or saw it done; 
 the next best would be the testimony of the men who voted for him. The evi- 
 dence of the ballots themselves, wn a recount, is remote and circumstantial. 
 
 Butler vs. Lehman [minority report sustained by House), 37th Cong Rept. -6, p. 25 
 
 "The ballots can not be entitled to much weight as evidence of the result of the elec- 
 tion where it has been shown that the acts and conduct of the election officers are 
 unworthy of credit aiid their returns set aside and regarded as unreliable. Having 
 created for themselves, in violation of law and their official oaths, opportunities 
 for tampering with the box, it is legitimate to inter that they would endeavor to 
 put ballots in the box that would support the return." 
 Bisbee vs. Finley, 47th Cong 2 Ells., 180 
 
 Lists of voters kept by ontside parties admitted. 
 Where lists kept by outsiders were introduced as evidence to impeach the correctness 
 of the returns, the committee considered them, saying: "It is obvious that the 
 credit to be attached to this testimony is entirely dependent upon the accuracy 
 with which these outside lists were kept." In this case they were found to be 
 insufficient to overthrow the returns. 
 
 IMtellyB. EobUns, 31st Cong 1 Bart., 140 
 
 Where voters who voted for contestant exhibited their tickets as they voted them, 
 
 and a list of their names was taken down, this list and the testimony of the person 
 
 making it were received as evidence of tlie vote at a precinct where the box had 
 
 been stuffed. 
 
 Lee vs. Richardson ( minority report ), 47th Cong 2 Ells. , 532 
 
 The evidence of persons who issued tickets and claim to know that they were voted 
 is admissible to prove that the vote of a precinct differed from the return, and if 
 sufficiently clear and convincing may be conclusive of the falsity of the returns. 
 McDuffie vs. Turpin, 61st Cong Rowell, 299 
 
842 DIGEST OF OONTESTEC ELECTION CASES. 
 
 Lists of voters kept by outside parties not sufficient. 
 Where the voters of one party voted open tickets and their names were taken down 
 by one of their number, who had been appointed judge but was refused permission 
 to act, and the judges who did act adjourned for dinner, and there were many indi- 
 cations of frauii, and the ballots never were finally canvassed, the committee refused 
 to count any votes. 
 
 Todd vs. Jayne, 38th Cong 1 Bart., 558 
 
 BETXTRNED MEMBER. 
 
 See Credentials, and Prima Facte Right. 
 
 SHIFTING OF BALLOT BOXES. 
 
 See Ballots in Wrong Boxes. 
 
 SOLDIERS. 
 
 See Residence and Legislature. 
 
 STATE LAWS (see also House of Representatives). 
 Allegation of irregularity insufficient under State law, immaterial. 
 
 Allegations of irregularities which would not be sufficient to vitiate the election 
 under the laws of the State in which the contest originated held to be immaterial, 
 and contest dismissed. 
 
 • Van Rensselaer vs. Van Allen, Sd Coinj C. and H., 73 
 
 The construction of State laws by State courts will be followed. 
 "It is an established rule in the Congressional adjudication of election cases that 
 where the law of the State under which an election was held has received judicial 
 construction in the courts of that State, that construction shall be accepted as 
 binding upon Congress." 
 
 Delanoi/s. Morgan {minority report) , 40th Cong _ 2 Bart., 178 
 
 "It is a well-established and most salutary rule that where the proper authorities 
 of the State government have given a construction to their own constitution or 
 statutes, that construction will be followed by the FederaV authorities. This rule 
 is absolutely necessary to the harmonious working of our complex govemnienta. 
 State and National, and your committee are not disposed to be the first to depart 
 from it." 
 
 Tennessee election, 4Sd Cong Smith, 6 
 
 The rule stated in McCrary, section 313, "that the House of Representatives of the 
 United States in construing a State law will follow the construction given it by the 
 authorities of the State, whose duty it is to construe and execute it, " quoted and 
 approved by the minority of the committee. 
 
 Le Moyne ys. Fa rwell, 44th Cong Smith, 425 
 
 If the State courts have not construed the State law, the committee Mill determine 
 whether its provisions are directory or mandatory; but if the State courts have 
 ruled on any provision of the law, the committee will follow their ruling. 
 Spencer vs. Morey {minoriii/ report) , 44th Cong Smith, 458 
 
 ' ' If any rule of law can ever be regarded as settled, certainly the rule that Federal 
 authorities would follow the construction of State statutes by State courts must be 
 regarded as settled by a long line of able and unbroken decisions. The only 
 exceptions made to this rule by the Supreme Court of the United States are where 
 the State courts have made conflicting decisions. * * * To say that the 
 Supreme Court of the United States will only follow a State court 'on a rule of 
 property' is a total misconception of the principle announced by the court." 
 (Many authorities cited.) 
 lAjnch\s. Chalmers {minority report), 47th Cong 2 Ells., 375-378 
 
STATE LAWS. 843 
 
 "Your committee, in conformity with an almost invariable rule, follow the construc- 
 tion of the statutes given by the court of last resort of the State from which the 
 cases come. Such is the rule of the Supreme Court of the United States, and we 
 do not perceive why one so well based upon reason and common sense should be 
 departed from." 
 
 Califomm case, 49th Cong Mobley, 484 
 
 The qualifications of a member depend on the Federal Constitution and laws; his 
 election depends on the people of his district and the laws of his State. Where 
 (in Indiana) the State law is that votes cast for an ineligible candidate are void, 
 and the eligible candidate receiving the highest number of votes is elected, this 
 rule should be followed in a contest from that State. 
 Lourry vs. While (Mr. O'Neill), 50th Cong Mobley, 645 
 
 ConstTQctiou of State laws by ezecntive officers not binding. 
 The opinion of the attorney-general of a State, given to the governor to guide him in 
 the exercise of purely ministerial duties, is not a rule for the guidance of courts or 
 legislative bodies in the exercise of their judicial functions. 
 
 McKenzie vs. Braxton, 4^d Cong. . , Smith, 24 
 
 "Decisions of State courts in interpreting local statutes are heeded in the Federal 
 courts. It is not so with the interpretations put upon the law by an executive 
 officer. * * * It comes to this: In cases of doubt the practice of the authorities 
 of the State is only a practical construction, to which the courts will give more or 
 less heed in determining what the proper construction is. The line between the 
 executive and judicial tribunals is clearly drawn." 
 Pool vs. Skinner (minority report), 48ih Cong Mobley, 71, 72 
 
 Coustrnction of, by State courts, not always binding. 
 The decision of the supreme court of Illinois, that the legal residence of a pauper 
 was the place from which he came to the poorhouse, was held not to apply to his 
 voting residence, because it was made in a case arising under the police law of the 
 State providing for the support of paupers by the townships of their residence. But 
 the minority held that the decision in its terms covered the whole question of resi- 
 dence, and under the rule universally adopted by Federal tribunals was binding 
 on Congress as a construction of the State law. 
 
 Le Moyne vs. Farwell, 44th Cong Smith, 419,' 425 
 
 Constrnction of State laws by State courts strongly persuasive on the House. 
 The committee "are not prepared to hold that the decision of the highest authority 
 of a State upon the meaning of its constitution in reference to whether the day of 
 the election of State officers is fixed by that constitution or not, so far as it is 
 material in determining the legality of an election of Representatives in Congress, 
 is absolutely binding on this House." But the rule that such constructions will 
 be followed by the Federal authorities is a salutary one, and " we are not disposed 
 to be the first to depart from it, and we certainly think that such a decision, made 
 in good faith and acquiesced in at the time by the people of the State, and followed 
 by a full and fair election, should not be overthrown or questioned except for the 
 gravest reasons, founded on an undoubting conviction that it was plainly an error, 
 and that the error had worked some substantial injury." 
 
 Holmes and Wilson, 46th Cong 1 Ells., 330 
 
 Constrnction of State laws by State courts persuasive but not binding on the House. 
 In this case disregarded. 
 Where a decision or line of decisions of State courts interpreting a State law has 
 become a rule of property in the State, the rule of the United States Supreme Court 
 is to follow such decisions in cases from that State. But it is too broad a statement 
 to say that a decision of the supreme court of a State, construing a State law, is 
 binding on all Federal tribunals. "It may be stated generally that the House of 
 Representatives will, as a general rule, follow the interpretation given to a State 
 law regulating a Congressional election by the supreme court of a State, where deci- 
 sions have been continued and uniform in such a way and for such time as to 
 become the fixed and settled law of a State." But a single decision, made by a 
 court of doubtful jurisdiction over this part of the case, not made until after the 
 election in question, and made on points not necessary to be decided in the case 
 
844 DIGEST OF CONTESTED ELECTION CASfiS. 
 
 before the court, and hence obiter dicta, is not binding on Congress. In the case of 
 State laws regulating Congressional elections it is further to be said that "every 
 State election law is by the Constitution made a Federal law where Congress has 
 failed to enact laws on the subject, and is adopted by Congress for the purpose of 
 the election of its own members," and the House in the exercise of its judicial 
 prerogative may therefore be regarded as a court of appeal in the interpretation of 
 such laws. A decision of a State court declaring ballots containing printer's dashes 
 to be in violation of the statute and void was disregarded, and the ballots counted. 
 Lymh vs. Chalmers, 47th Cong 5J Ells., 346-350 
 
 Generally accepted coustmctionB to be sustained. 
 " We suppose it to be well settled in cases of the doubtful construction of a statute 
 involving the rights of the people, and only their rights as distin^ished from indi- 
 vidual rights, the adoption of a particular construction with entire unanimity has 
 never been disturbed by a power only interested to preserve the right of the State. ' ' 
 Patterson vs. Belford {minority report), 45th Cong , 1 Ells., 63 
 
 Alternative ^ronnd of decision not dictum. 
 "An obiter dictum is an expression of opinion by way of argument or illustration, 
 and rendered without due consideration as to its full bearing and effect." But in 
 a case involving three issues, a negative decision of any one of which would render 
 unnecessary a decision of the other two, but an affirmative decision of any one of 
 which would require a decision of the other two, the fact that the court decided 
 the first two issues in the affirmative, and then decided the third in the negative, 
 would not render the decisions upon the first two in any sense oMter dicta, though 
 the negative decision of the third controlled the case. 
 
 Lynch vs. Chalmers {minority report), 47th Cong -. 2 Ells., 369-372 
 
 dnalifications of voters fixed by States. 
 "The power to fix the qualifications of voters is vested in the States, subject only to 
 the limitation contained in the fifteenth amendment to the Constitution of the 
 United States. Each State fixes for itself these qualifications, and the United States 
 must adopt and has uniformly adopted the State law upon the subject, and the 
 House of Eepresentatives should not in any case fail to act in conformity with it." 
 ■Oreevy vs. Scull, S^d Cong Stofer, 158 
 
 The construction of State laws by State courts will be followed. 
 "Your committee are of the opinion that the decision of the court of last resort of a 
 State upon the construction of a statute of that State, and in a matter before them 
 involving the construction of a statute of that State, should be binding upon them." 
 
 Noyes vs. Rockwell, 5Sd Cong Stofer, 28 
 
 Committee sbonld follow constrnction of State courts. 
 In a case in which a State statute had been construed by a divided court, the com- 
 mittee stated reasons for preferring the dissenting opinion, but added: "However, 
 the highest court in the State has construed the statute, and the committee feels it 
 should follow where that conclusion leads." 
 
 WiUiams vs. Settle, BSd Cong Report 337, p. 10 
 
 Interpretation by State courts followed. 
 Under the provision of the constitution of Tennessee that "there shall be no qualifi- 
 cations attached to the right of suffrage," except the payment of a poll tax and 
 satisfactory evidence thereof, it had been claimed that an Australian ballot law 
 requiring the printing of the names in alphabetical tirder and permitting assistance 
 to the voter only in case of physical disability, was unconstitutional as imposing in 
 effect an educational qualification, but the supreme court of Tennessee had decided 
 that it came within the constitutional power of the legislature to enact "laws to 
 secure the freedom of elections and the purity of the ballot box." The committee 
 acceiited this decision, and the minority, while clearly of the opinion that the 
 decision was wrong, were "constrained to follow that decision in the present case." 
 Thrasher vs. Enloe, 5Sd Cong Report 842, pp. 7, 12 
 
STATE LAWS. 845 
 
 Decision of State supreme court followed as to residence of inmates of Soldiers' Home. 
 
 Where the supreme court of Michigan had, since the election, decided that inmates 
 of the Soldiers' Home could not gain a legal residence by being quartered at the 
 Home, the committee followed this decision and threw out the votes. A dissenting 
 opinion by Mr. Thomas held that if the decision were to be taken as retroactive the 
 action of the people in subsequently amending the constitution so as to reverse the 
 effect of the decision should also be taken as retroactive. 
 
 Belknap vs. Richardgon, 53d Cong Report 1946, part 1 , p. 1 ; part 2, pp. 1-6 
 
 Where State court held law constitutional, committee expressly refrained from decid- 
 ing;; minority held it unconstitutional. 
 Where the constitutionality of the Virginia election law was brought in question, but 
 the supreme court of Virginia had, since the election, declared the law constitu- 
 tional, the committee expressly refrained from deciding the constitutional question, 
 but held that even if the law were invalid in its assailed sections, these were not 
 so vital as to justify declaring that there had been no legal election. 
 The minority held that the decision of the Virginia court being dictum, and this 
 being a matter of public importance, of which the House had original and final 
 jurisdiction, the House could ■ consider the question, and argued that the law was 
 clearly unconstitutional. 
 
 Comett vs. Swanson, 54th Cong Report 1473, parts 1 and 2 
 
 Bulings of State courts less binding on House than its own precedents, 
 " But in judging of the elections, returns and qualifications of its own members under 
 the grant of the Constitution, this House exercises judicial power, and is a court 
 of competent and exclusive jurisdiction. In passing upon these returns and elec- 
 tions, even if no Federal statute is in existence regulating the elections of its mem- 
 bers, it interprets and construes the State election laws which, for the purposes of 
 such election, are to be regarded as having the quality of Federal legislation, and 
 the opinions of State judges are only to be adopted so far as they commend them- 
 selves by the intrinsic force of their reasoning; and where such decisions are in 
 conflict with its own determinations, the precedents established by Congress are 
 the expression of the law, and must control that court with the same force and 
 effect that its own prior deliberate rulings guide and control any other court." 
 
 PaUerson vs. Carmack, 55th Cong Report 895, p. 18 
 
 Bepeal by implication to be avoided. 
 "The well-established rule of construction is this, that one statute is not to be con- 
 strued as the repeal of another, if it be possible to reconcile the two together." 
 Patterson vs. Belford, 45th Cong.... 1 Ells., 57 
 
 STIPXTLATION. 
 
 See Agreement and Waiver. 
 
 STUDENTS. 
 
 See Residence of Students. 
 
 SUPERVISORS OF ELECTION. 
 
 See United States Supebvisors. 
 
 SUPPRESSION OF EVIDENCE. 
 
 A party can not benefit by the absence of testimony suppressed by his own act. 
 Where the day on which the contents of the ballot boxes must be destroyed by the 
 custodians, unless restrained by an order of the court, fell on the last day of con- 
 testant's time for taking testimony, and it was shown that the affidavits of voters 
 which should have been filed in the prothonotariea' offices were in many cases in 
 
846 DIGEST OF CONTESTED ELECTION CASES. 
 
 the ballot boxes, and contestant did not produce these boxes, either for the purpose 
 of procuring these affidavits or of showing by the ballots how the unregistered 
 voters had voted, and resisted the petition of contestee for an order of the court by 
 which they might be preserved, so that contestee could put them in evidence in 
 his time, and in accordance with the contention of contestant the prayer was 
 denied and the contents of the boxes destroyed, the committee held that he had 
 been a party to the destruction of the evidence by which it might have been shown 
 who was elected, and he could not ask that the contestee be unseated on account 
 of an uncertainty which he had helped to produce. 
 
 Curtin vs. Yocum {minority report, adopted by the House), 4^th Cong — 1 Ells., 423 
 
 The majority held that this objection would have been well taken were it not for the 
 fact that contestant was shown to have used an "extraordinary degree of diligence 
 to account for and explain every alleged illegal vote." ' 
 
 Curtin vs. Yoaum [majority report), 46th Cong 1 Ells., 433 
 
 Primary evidence sappreased by contestee he can not object to secondary evidence. 
 Where the counsel for contestee forcibly removed from the possession of the notary 
 the box containing the ballots and returns of a precinct, contestee can not be heard 
 to say that secondary evidence shall not be produced, his agent having suppressed 
 the primary evidence. 
 
 Smalls vs. Elliott (minority report) , 50th Cong Mobley , 72b 
 
 Strict proof not required of other party. 
 Where one party suppresses testimony strict and technical proof will not be required 
 of the other. Where the first witness called in a precinct, after having testified 
 that he saw 3 more votes cast for contestant than were shown by the returns, was 
 arrested for perjury, and it was publicly announced by the attorney for contestee 
 that "anyone else testifying falsely" would be similarly arrested, and in conse- 
 quence of these threats no further testimony was taken in this precinct, the com- 
 mittee held that contestee could not be heard to object to the sufficiency of the 
 testimony, his attorney having by his own act prevented the taking of other 
 testimony. 
 
 Featherston vs. Caie, 61st Cong Rowell, 106 
 
 Attempted by contestee personally connects him personally with frauds. 
 The attempt of a successful candidate to suppress the evidence of frauds committed 
 to secure his election connects him with the frauds, and brings him within the 
 scope of the rule that fraud committed by a successful candidate invalidates the 
 election. 
 
 Hill vs. Caichings {mews of Mr. Lacey), 51st Cong Rowell, 812 
 
 By dilatory cross-examination. 
 Where contestant began taking certain testimony a reasonable length of time before 
 the expiration of the first forty days, but was prevented from finishing it by the 
 long cross-examinations of contestee's attorney, evidently made for the purpose of 
 delay, he continued taking it until it was finished. Contestee had opportunity to 
 answer it, and could have cross-examined it if he had chosen. The taking of his 
 own testimony was not interfered with, as he did not begin until some time after 
 contestant had finished. Under these circumstances the committee received and 
 considered the testimony. 
 
 Bishee vs. Finley, 47th Cong 2 Ells., 193 
 
 Where in one precinct contestant began taking testimony twenty-three days before 
 the expiration of his time, in pursuance to a notice containing the names of 292 
 persons who, it is claimed, would have testified that they voted for him in said 
 precinct, and the first two witnesses, the ticket distributers, were cross-examined 
 tsy the contestee throughout the entire twenty-three days, held that the contestee 
 is estopped from claimmg that the evidence of these ticket distributers is insuffi- 
 cient unless corroborated by that of the voters themselves, he having by his own 
 act prevented the latter testimony from being taken. 
 
 Langstonvs. Venable, 51st Cong Rowell, 450 
 
SUPPRESSION OF EVIDENCE. 847 
 
 "The House of Representatives may in a proper case grant additional time to take 
 testimony, but it will never, until all principles governing judicial procedure and 
 the hearing and determination of causes are set aside and utterly disregarded, 
 strengthen and bolster up a weak and feeble attempt to annul the solemn act of 
 election officials upon the mere assertion of a party that he could, if he had been 
 favored with more time, have proved his case." 
 Langston vs. Vtmable ( minority report ) , Slst Cong Rowell, 497 
 
 Where official recount suppressed, private recount received. 
 Where contestant had undertaken to have all the ballots recounted, but had been 
 prevented by an injunction, issued at the instance of contestee, the committee 
 accepted the result of a private recount of part of the precincts, made by an outsider 
 during a recount of the votes on local officers, on the ground that contestee had made 
 this recount admissible by himself preventing an official recount from being held. 
 But the House agreed with the minority and voted to recommit the case for a 
 recount. 
 
 Rinaker vs. Downing, 54th Cong Report 1400 
 
 Where first witness arrested, whole township thrown out. 
 ' Where the first witness in a township (in which there were eight precincts) tesoi^ed 
 that an attempt had been made to bribe him, and he was the same day arrested 
 for perjury, and the witnesses called on the following day failed to appear, the 
 committee threw out the vote of the entire township on the ground of suppression 
 of testimony, asserting that the case was analogous to that of Featherston vs. Gate. 
 But when the case came before the House, the author of the report moved to strike 
 this ruling from it, , and the case was decided on other grounds. 
 
 Pearson vs. Crawford, 56th Cong Report 199, p. 13 
 
 The minoritjr held that this case was not analogous to Featherston vs. Gate, and 
 said: "No just inference could be drawn that the purpose was to intimidate wit- 
 nesses. Witnesses who testify in contested election cases do so under regulations 
 of law as in other cases, and men who rely upon the testimony of such witnesses 
 have no right to have them protected in the violation of law. ' ' 
 Pearson vs. Crav'ford {minority report), 66th Cong Report 199, pt. 2, p. 32 
 
 TAX. 
 
 Work on the road not a payment of a tax. 
 Under the law for the government of the Territory of Michigan, prescribing, among 
 other things, the payment of a county or territorial tax as a requisite for voting, 
 held that labor on the reads was not the payment of such a tax, especially when it 
 was done voluntarily upon a road never legally established, a few days before the 
 election, evidently for the purpose of acquiring the right to vote. 
 
 Biddle and Richard vs. Wing, 19th Cong C. & H. , 512 
 
 Must be paid by the voter himself to entitle him to vote. 
 Where a voter was required to possess an estate of £50, but it was provided that i 
 person who had paid taxes was to be held to possess this property qualification^ the 
 committee held that only bona fide taxpayers could vote, and where the tax was 
 paid for the voter by another person on election day, the vote was rejected. 
 
 New Jersey case, ^6th Cong 1 Bart., 27 
 
 Paid by draft, and draft not cashed until after the election, tax held not to be paid 
 until after the election. 
 Under the Virginia law requiring the payment of a capitation tax as a prerequisite 
 for voting, many voters voted on tax receipts issued by "special collectors" 
 appointed by the auditor of public accounts, and their deputies, the taxes being 
 paid not by the voters but by a party comniittee. The committee reserved ill 
 decision on the question of the legality of the appointment of these special collect- 
 ors and their deputies, but held that, conceding this point, only those voters could 
 be held to have voted legally whose taxes had been paid in cash previous to the 
 election. A cash payment of |125 was shown to have been made, and the com- 
 mittee allowed the votes of as many delinquents as this $125 would have paid for. 
 
848 DIGEST OF CONTESTED ELECTION OASES. 
 
 But the remainder of the sum being paid by a draft, and this draft not being 
 indorsed nor. cashed by the collector until after the election, the committee held 
 that the taxes paid by this draft were not paid until after the election, and deducted 
 the votes. 
 
 O'Ferrall vs. Paul, 4SlhCong Ilobley, 138,153 
 
 Paid by party committee, valid if ratified by voter on election day. 
 Where, under the Virginia capitation-tg-x law, the taxes of many voters were paid 
 for by a party committee, and receipts issued to the voters, tbe minority said: 
 " We contend that if the delinquent's tax was paid by some one, the receipt given, 
 and filled up by the collector or some one for him and by his express direction and 
 authority, and at any time before the day of election, the acceptance of the receipt 
 by the delinquent on the day of election ratified the act of the party paying the 
 tax, and such ratification adopts the act as of the time of its performance." 
 
 O'Ferrall vs. Faul (minonty report), 48th Cong Mobley, 152 
 
 In Virginia, legal if paid to "special collectors." 
 "We are of opinion that the votes cast [in Virginia] on receipts issued by the tax 
 collectors appointed by the auditor of public accounts, which were paid for by 
 the voters or other persons for them prior to the day of election, were legal votes, 
 and were properly received and counted by the election officers. ' ' 
 
 Massey vs. Wise, 48th Cong _ Mobley, 366 
 
 Must be paid witbin legal time. 
 Where the statute required, among other things, that a voter must have paid a poll 
 tax legally assessed within two years, and the last date on which it could be legally 
 assessed was October 1, but it was customary to allow persons to be a-ssessed, pay 
 the tax, and vote on election day in November, the committee unanimously held 
 that two votes so cast were illegal. 
 Abbott vs. Frost, 44th Cong Smith, 618 
 
 Paid by otbers, if accepted by tbe voter, sufficient. 
 
 "We are of the opinion that when the voters accepted the poll-tax receipts for taxes 
 
 paid by others for them, they ratified the payment so made for their benefit." It 
 
 was not necessary thai the voter should bind himself to repay the tax, neither did 
 
 the acceptance of its payment in itself constitute bribery. 
 
 Patterson vs. Carmack, 65th Cong Report 895, p. 25 
 
 Voter should repay or promise to repay the amount. 
 "Now, we fully recognize the doctrine that one's poll tax may be legally paid by 
 another, provided the voter shall properly ratify the act afterwards, but we do not 
 think the mere taking of the receipt and voting on the same is such a ratification 
 as the law contemplates. We think the better and sounder doctrine is that the 
 voter should not only accept the receipt, but he should recognize the act in the 
 more substantial way by repaying or promising to repay the amount." However, 
 the minority only deducted a few votes, for which the money was not paid until 
 after the election. 
 
 Patterson vs. Carmack (minority report) , 56th Cong Report 895, pt. 2, p. 16 
 
 TAX LISTS. 
 
 Sec Evidence, Documentary. 
 
 TENDER. 
 
 See Votes, constructively rejected. 
 
 TEBBITOBIAX, BEI^EGATE 
 
 See Delegate, 
 
TIE VOTE. 849 
 
 TESTIMONY. 
 
 See Evidence. 
 
 TIE VOTE. 
 
 Not to be determined by lot. 
 
 The law of Maryland providing that in case of a tie the governor and council atiould 
 
 determine by lot who should be Representative, held to be unconstitutional on the 
 
 ground that Representatives in Congress are to be elected by the people, and if 
 
 they fail to make a choice no other authority can do it for them. 
 
 ^ Reed vs. Cosden, 17th Cong C. & H., 354 
 
 When all rights under it waived, they can not be claimed after a new election upon 
 allegation that the election was not in fact a tie. {See Waiver. ) 
 
 TIME FOR TAKING TESTIMONY. 
 
 See Evidence. 
 
 TIME OF ELECTION. 
 
 See Election. 
 
 ■UNDTJE INFLUENCE (see also Bribery, Deception, and Intimidation.) 
 
 Vote cast in hope of immunity from prosecution thrown out. 
 Where a voter who preferred to vote for contestant voted for contestee, in the hope that 
 he would thereby gain immunity from prosecution, the committee threw out the 
 vote "as being tainted, and not a perfectly free ballot." 
 
 Boynton vs. Loring, 46ih Cong 1 Ells. , 349 
 
 Mere personal influence not material. 
 
 Where the United States deputy marshal testified that the colored voters had 
 
 unbounded confidence in him, and that he could have controlled the votes of at 
 
 least 900 of them, it was held that this fact, if true, could not justify the rejection 
 
 of any votes. 
 
 Bromberg vs. Haralson, 44ih. Cong Smith, 363 
 
 UNITED STATES MARSHALS (see also Bribery). 
 
 Their appointment under any circumstances deprecated. 
 
 " Your committee deprecate the appointment of United States marshals under any 
 pretext. If they are intended as conservators of the peace, the power of the State is 
 ample for that purpose. If they are in any manner to interfere in the elections, it 
 is clearly a violation of the laws of the States for them to do so. But the law of 
 the United States warrants the appointment of deputy marshals, and the same 
 must be respected until altered or repealed. It does not limit the number." The 
 only question for the committee to decide is, "Was the conduct of the marshals 
 such as to invalidate the whole election?" 
 
 Frostva. Metcalfe, 46th Cong - 1 Ells., 293 
 
 UNITED STATES SUPERVISORS. 
 
 Their presence may rebut inference of fraud. 
 Where there was evidence that the State registrar had endeavored to procure a fraudu- 
 lent registration and election, and some evidence that he had done so, the fact that 
 the Congressional election and registration had been thoroughly supervised by 
 Federal supervisors was cited as one of the reasons for believing that fraud such as 
 claimed could not have been committed at it. 
 
 Sheridrm vs. Pinchback, 43d Cong , Smith, 323, 326, 327 
 
 H. Doc. 510 54 
 
850 DIGEST OF CONTESTED ELECTION CASES. 
 
 Their return accepted when other return untrustworthy. 
 Where the ballots and returns were given to one of the managers to return according 
 to law, but he left them in the possession of an outsider, by whom they were deliv- 
 ered, and they "were rejected by the county board on this account, the committee 
 counted the vote according to the returns of the United States supervisors. 
 
 SmallsvB. Elliott, 50th Cong Mobley, 666 
 
 Their returns received when ballot box stolen. 
 Where a ballot box had been stolen, the return of the United States supervisors was 
 received as secondary evidence to establish the vote. 
 Smalls vs. Elliott {minority report) , 50th Cong Mobley, 726 
 
 Their return received when other return not forwarded. 
 Where the return of a precinct for some unexplained reason was not forwarded to the 
 county board, but the vote was proved by the supervisor's returns and other testi- 
 mony and the election was legally held, the vote was counted according to the 
 proof. "Voters are not to be disfranchised by any neglect of the officers after the 
 election if the correct vote can be ascertained." 
 
 Mc]>nffie vs. Turpin, 31st Cong Rowell, 294 
 
 Sallot box removed from their presence, fatal except for strong affirmative proof of no 
 
 fraud. 
 
 Where the poll was closed for dinner and the box removed from the presence of the 
 
 United States supervisor, lield that but for the strong affirmative proof that no wrong 
 
 was intended or done in this case the committee would unhesitatingly reject the 
 
 return. 
 
 Bowen vs. Buchanan, 51st Cong Rowell, 197 
 
 Exclusion .of, discredits return. 
 Where a United States supervisor had been unlawfully excluded from the poll, the 
 committee held that this discredited the return. The evidence showed that 97 
 votes were cast for contestant, though only 29 were returned. The committee 
 held that these 97 votes were the only ones which could be legally counted, but 
 under the concession of contestant's brief added 68 to contestant's vote and 
 deducted a like number from contestee. 
 
 Goodrich vs. Bullock, 61st Cong Rowell, 593 
 
 Interference with, fatal to the election. 
 " If it be shown that there was an unlawful interference with the United States super- 
 visors of election whereby they were prevented from discharging duties which are 
 committed to their hands by the law of Congress, it would undoubtedly be our 
 duty to set aside the election at such precincts." Several precincts were rejected 
 on this ground. 
 
 Buchanan ye. Manning, 47th Cong 2 Ells., 290 
 
 "In every instance where a United States supervisor is prevented from discharging 
 
 his duties, as provided by statute, the coii'mittee hold that such fact destroys the 
 
 validity of the return and requires its rejection, leaving the parties to prove the 
 
 vote by otljer competent evidence." 
 
 Hill vs. Catchings, 51st Cong Rowell, 805 
 
 Ontside of cities, mere witnesses. 
 At polls outside of cities of 20,000 inhabitants or over United States supervisors are 
 mere witnesses, with no power to make returns or certificates of any sort. They 
 should be called like other witnesses to testify to facts within their knowledge. 
 
 Lynch vs. Chalmers {minority report), 47th Cong 2 Ells., 368 
 
 United States supervisors outside of cities of 20,000 inhabitants have no power to 
 make official returns, and papers purporting to be certified copies of such returns 
 are not evidence. 
 Mackey vs. O'Connor {minority report), 47th Cong 2 Ells., 593 
 
UNITED. STATES SOPEEVISORS. 851 
 
 Duties of. 
 Section 2029 of the Revised Statutes is not a repeal of sections 2016, 2017, and 2018, 
 and in no way changes the duty of the supervisors "to be and remain where the 
 ballot boxes are kept at all times after the polls are opened until every vote cast 
 at such time and place be counted, the canvass of all votes polled wholly com- 
 pleted, and the proper and requisite certificates or returns made." By section 
 2029 the power to order arrests is taken from United States supervisors in all places 
 other than in cities of 20,000 inhabitants or upward, and their duties are limited 
 to witnessing the conduct of the election, the counting, and making return of the 
 result. This includes the power and duty to be present at all times and to scruti- 
 nize the count and return. 
 
 Hill vs. Caichings, 51st Cong Rowell, 806 
 
 UNORGANIZED COUNTIES. 
 
 Votes returned from, rejected. 
 
 The committee held that votes returned to the governor from unorganized counties 
 
 should be rejected, and rejected the votes of three such counties. There was, 
 
 however, evidence in each of these cases that the votes or returns were fraudulent. 
 
 Daily, vs. Estabrook, 36th Cong 1 Bart. , 299 
 
 The committee rejected votes cast in a county not legally organized under the laws 
 of Nebraska. 
 
 Morton vs. Daily, 37th Cong .' 1 Bart., 408 
 
 Not organized nntil the election of county of&cers. 
 The act of the Territorial legislature of Nebraska declaring that territory included 
 in certain limits "is hereby declared organized into a county" did not constitute 
 the county an organized county. There must first be an election of county officers 
 under the laws of the Territory for the organization of counties. 
 
 Daily vs. Estabrook, 36th Cong .- 1 Bart, 299 
 
 Consolidation of two counties legal in Minnesota. 
 The constitution of" Minnesota empowered the legislature to establish new counties 
 containing at least 400 miles, and to enlarge counties already established, but not 
 to reduce them below 400 miles. The commitlee were of the opinion that the con- 
 solidation of two counties, thus virtually abolishing one of them, was not a reduc- 
 tion of that county below the limit of 400 miles within the meaning of the consti- 
 tution and was within the power of the legislature. 
 
 Cox vs. Strait, 44th Cong Smith, 429 
 
 Where votes from unorganized county included in return of organized county, whole 
 
 vote of both counties thrown out. 
 
 Where the canvassing board of an organized county included in their return the vote 
 
 of a neighboring unorganized county and there was evidence that the votes in 
 
 the unorganized county were cast by nonresidents who were bribed by contestee, 
 
 the committee threw out the whole vote of both counties. 
 
 DoneUy vs. Waglihum ( majority report) , 46th Cong 1 Ells. , 467 
 
 Where vote of unorganized county returned with that of organized county, the 
 latter should at least be counted. 
 Where the canvassing board of an organized county included in their return the pre- 
 cincts of a neighboring unorganized county, held, that the votes of the organized 
 county, being easily separable on the face of the returns, and having been separately 
 canvassed by the State canvassing board, should at least be counted. 
 DoneUy vs. Washburn {minority report), 46th Cong 1 Ells., 515 
 
 Votes received where there was a de facto organization. 
 
 Where the returns of counties were rejected by the State canvassing board on the 
 
 ground that they had never been recognized as organized by the legislature, but 
 
 It appeared that thejf did have a de facto organization and there were no charges 
 
 of fraud or illegal voting, the committee unanimously counted the votes. 
 
 DomllyYB. Washburn, 46th Cong 1 Ells., 468, 506 
 
852 DIGEST OF CONTESTED ELECTION CASES. 
 
 UNOBGAIflZED TEKRITOKIES. 
 
 See Delbgatk. 
 
 UTAH. 
 
 Election of a polygamist is a violation of TTtah enabling act. 
 Under the enabling act of Utah the subsequent election of a notorious polygamist to 
 Congress was a violation of the agreement under which Utah became a State. 
 Sporadic violations of the law were to be expected, "but we take it that it is in the 
 last degree a violation of the agreement or understanding when that State sends to 
 Congress a man who is himself engaged in the persistent practice of the very thing 
 the abandonment of which was the condition precedent to its admission, and that 
 man the most conspicuous defler of the law and violater of the covenant of state- 
 hood to be found in Utah." 
 
 Roberts, 56th Cong Report 8.5, p. 45 
 
 The condition of the enabling act was filled when tbe State was admitted. 
 The antipolj^gamy condition of the Utah enabling act was fulfilled by the action of 
 the State in passing the laws required by it, and, as a condition, ceased to exist. 
 "No power was reserved in the enabling act, nor can any be found in the Consti- 
 tution of the United States, authorizing Congress, not to say the House of Repre- 
 sentatives alone, to discipline the people or the State of Utah because the crime of 
 polygamy or unlawful cohabitation has not been exterminated in Utah." 
 
 Roberts {minority report), 56th Cong Report 85, pt. 2, p. 72 
 
 VACANCY (see also Besignation) . 
 
 Governor may fix time of election to fill vacancy. 
 
 If the legislature has failed to prescribe by law the time of an election to fill a 
 vacancyin Congress the governor may fix the time in his writ of election. The 
 notice given should be a reasonable one, but a notice of one or two davs was held 
 sufficient when the election was ordered for the same day as that fixed for the 
 Presidential election. 
 Hoge, 8th Cong C. and H., 136 
 
 Governor may take notice of. 
 Where a member had accepted the office of colonel in the Army, and the governor 
 took notice of the vacancy thus created and issued writs for a new election, the 
 member elected at this election was admitted. 
 
 Baker and Yell, S9th Cong 1 Bart., 92 
 
 Eesignation may be sent to governor. 
 A resignation may be sent to the governor, who is thereupon authorized to take 
 
 notice of the vacancy and issue writs for an election without a certificate from the 
 
 House of the existence of such vacancy. 
 
 Mercer, U Cong C. and H., 44 
 
 Edwards, Sd Cong ■ C. and H., 92 
 
 May "happen" by expiration of term, and calling of extra session before regular 
 election. 
 
 "The Constitution authorizes the executive power of the States, respectively, to order 
 the filling of all vacancies which have actually happened in the mode therein 
 pointed out, no matter how the vacancy may have happened, whether by death, 
 resignation, or expiration of the term of members previous to the election of their 
 successors. The word 'happen,' made use of in the Constitution, is not necessa- 
 rily confined to fortuitous or unforeseen events, but is equally applicable to all events 
 which by any means occur or come to pass." Where the Congress was called in 
 special session before the regular day for electing Representa.tives from Mississippi 
 and the governor called a special election, the House admitted the claimants for 
 the whole Congress, but at the next session rescinded its decision and declared the 
 seats vacant. 
 
 Gholson and Claiborne, 25lli, Cong... i Rq^>_ _ri_ 
 
VACANCY. 853 
 
 Created by death of majority candidate before canvass of votes. 
 The sole duty of the board of canvassers is "to ascertain the result when the polls 
 closed on the day of election." Whatever that result then was, it is unalterably 
 fixed, and if the candidate receiving the majority of the votes dies after the election 
 and before the canvass, a vacancy is created, just as if he had died before the 
 canvass. 
 
 Blakey vs. Golladay, 40th Cong 2 Bart., 417 
 
 Members elected to fill vacancy entitled to serve fnll term. 
 Where the governor called a special election for Representatives to serve at a called 
 session of Congress until the regular election in November, the members so elected 
 were admitted to serve the whole term, but this decision was subsequently rescinded 
 and the seats declared vacant. 
 
 Gholson and Claiborne, S5lh Cong 1 Bart., 9 
 
 First election in a new State not the filling of a vacancy. 
 "Your committee are of the opinion that the seventy -sixth section of the Revised 
 Statutes, in reference to the filling of vacancies in Congress, has no application to 
 the case of the election of the first Representative in Congress to which any new 
 State may be entitled, and that the first election, if for an unexpired term, is not 
 in any sense the filling of a vacancy as provided for in said twenty-sixth section of 
 the Revised Statutes." 
 
 Patterson vs. Belford, 45th Cong 1 Ells., 55 
 
 Where member not legally elected, member elected to fill vacancy caused by his 
 
 death nnseated. 
 
 A member of Congress against whom a contest was pending having died before the 
 
 decision of the contest, and his successor having been elected and sworn in under 
 
 protest, and it afterwards appearing that the contestant had been elected at the 
 
 first election, held, that no vacancy had existed to which the sitting member could 
 
 have been elected. 
 
 Mackey vs. 0' Connor, 47th Cong 2 Ells., 565 
 
 A member elected to fill a vacancy can not, without notice or opportunity to take 
 testimony or action of the House, be made a party to a contest pending against his 
 predecessor. 
 Mackey vs. 0' Connor ( minority report ) , 47th Cong 2 Ells. , 597-601 
 
 Vacancy occurring after redistricting, in what district new election to be held. See 
 District. 
 
 VIVA VOCE ELECTION. 
 
 See Election, by Ballot, and Viva Voce. 
 
 VOTERS. 
 
 Can not be compelled to testify when election by ballot. See Election by ballot. 
 Qualifications of. {See Qualifications op Electors.) 
 Evidence of, to Impeach Returns. {See Returns, evidence to impeiich. ) 
 
 Relation to Contest. 
 
 Not parties to the case. 
 Voters whose votes are charged to be illegal are not parties to a contested election 
 case. "They are not served with notice; they have no right to appear in the con- 
 test in their own right, either in person or by counsel; they can not of their own 
 motion even present themselves as witnesses. They are as much strangers to the 
 case as the men of the district who did not vo1;e, or the women and children of 
 the district, or the other people of the United States." 
 
 Wallace vs. McKinley, 48th Cong Mobley, 188 
 
854 DIGEST OF CONTESTED ELECTION CASES. 
 
 VOTES. 
 
 Prissumition 01' Legality of. 
 
 Received by election officers, presumed to be good. 
 All votes recorded on the poll lists should be presumed good unless impeached by 
 evidence. 
 Porterfield va. McCoy, Uih Cong C. and H., 270 
 
 After votes have been received as legal the judges can not, under the North Carolina 
 law, decide them illegal, or authorize the judges who compare the polls to throw 
 them out. "Having been received at the time of the election the petitioner is 
 entitled to them unless they are proven to be bad." 
 
 Newland vs. Graham, S4th Cong -i-l Bart., 7 
 
 "It is the settled law of elections that where persons vote without challenge it will 
 be presumed that they were entitled to vote, and that the sworn officers of the 
 election who received their votes performed their duty properly and honestly, and 
 the burden of proof to show the contrary devolves on the party denying their right 
 to vote." 
 
 Pinley vs. Bisbee, 45th Cong 1 Ells., 91 
 
 "If a person votes at an election his vote is presumed, under the law, to be legal 
 until the contrary be proven in a legal way, for the reasons: First. That the acts of 
 an officer or officers of an election within the scope of their authority are presumed 
 to be correct and honest until the contrary is made to appear, and therefore that 
 they as such officers would not receive an illegal vote. Second. That the presump- 
 tion is always against the commission ola fraudulent or illegal act, and, therefore, 
 that a man would not cast an illegal vote." 
 
 Finley vs. Bisbee, 45th Cong 1 Ells., 93 
 
 "A vote accepted by the commissioners holding the election is prima facie legal. 
 Before it can be thrown out for illegality it must be satisfactorily shown by the 
 evidence to have been cast by one not legally qualified to vote — that is to say, the 
 presumption of legality must be overcome by a clear preponderance of competent 
 evidence. By competent evidence we mean such evidence as would be admitted 
 on the trial of the issue before a judicial tribunal, except where a relaxation of the 
 rule is made necessary by the nature of the issue." 
 Smith vs. Jackson, 51st Cong : Rowell, 27 
 
 Every reaso»able intendment sionld be indulged in favor of voter. 
 
 When a person offering to vote is challenged at the polls, no presumptions are 
 indulged in favor of his right to vote. He is then and there called upon to furnish 
 evidence of his qualifications as an elector. But when he has once voted unchal- 
 lenged and his ballot has been deposited in the ballot box, and counted, and can- 
 vassed, and a certificate of election issued upon it, quite a different rule prevails. 
 Every reasonable intendment should then be indulged in his favor, and his right 
 to vote should not be rejected upon technical, presumptions and because some 
 degree of doubt may be thrown upon it. 
 
 Craig Ya. Stewart {mi7iority report), 53d Cong Stofer,16 
 
 SoNDRY Irregularities. 
 
 By proxy. 
 Votes given by proxy to lie set aside. 
 
 Bichards, 4th Cong C. and H., 99 
 
 Once given, can not be changed. 
 In a lira voce election " where a voter is first polled, and his vote recorded for one 
 candidate, he is not at liberty afterwards to change it, and have his vote transferred 
 to another candidate; nor if he first votes for the State officers only, has he a right 
 to come forward afterwards to vote for a Representative in Congress." 
 
 Draper vs. .Toliiisinn, 2-Jd Cong C. and H., 711 
 
VOTES. S55 
 
 Cast after legal hoar, rejected. 
 Where the poll was kept open after the legal hour, and statements made by one of the 
 judges, and other evidence indicated that fewer votes were cast than returned, the 
 majority of the committee recommended that the poll be excluded. The minority 
 excluded the votes received after the legal hour, though they were otherwise legal 
 votes, and the House agreed with the minority. 
 
 Chapman vs. Ferguson, 35th Cong 1 Bart., 267 
 
 Illegal. See Illegal Votes. 
 
 Not Oast. See Intimidation and Votes Constructively Receded. 
 
 Excess of. See Ballots, Excess of. 
 
 Illegally Ke.iected. 
 
 Connted as if cast. 
 Votes tendered for the petitioner by qualified voters but rejected by the officers of 
 election counted by the House. 
 Bassett vs. Bayley, ISlh Cong 0. and H., 258 
 
 Votes offered for the sitting member and improperly rejected by the sheriff counted 
 for him by the committee. 
 Porterfield \B. McCoy, 14th Cong C. and H., 267 
 
 Where votes had been rejected by the oflBcers of election, the committee, on proof 
 
 that they were improperly rejected, counted them. (But the committee in this 
 
 case laid down the general principle that votes not cast can not afterwards be 
 
 inquired into. See citation from this case under Intimidation, p. 737. ) 
 
 Biddle and Richard vs. Wng, 19th Cong C. and H., 510 
 
 Votes improperly rejected by the election oftcers were counted by the committee. 
 New Jersey Case, S6th Cong 1 Bart., 28 
 
 Where the votes of legal voters were rejected by the board of election, they were 
 counted by the committee for the candidate for whom they would have voted if 
 permitted. 
 
 CovodeYS. Foster, 41st Cong 2 Bart., 601, 611 
 
 A vote offered by an elector and illegally rejected should be counted as if cast if it be 
 shown for whom the elector offered to vote. 
 Bisbee vs. Finley, 47th Cong 2 Ells., 173 
 
 " When a person clearly entitled to vote offers his ballot at the proper time and place, 
 and to the proper officers, the same should be counted, although rejected by the 
 election officers." — McOrary, § 530, quoted with approval in — 
 
 Wallaceva. McKinley {minority report), 4Slh Cong Mobley, 193 
 
 Where qualified voters attempted to register and were refused, and offered to vote 
 but were refused for lack of registration, their votes should be counted as if cast. 
 Smalls vs. Elliott {minority report), 50th Cong Mobley, 709 
 
 Where qualified voters properly registered offered to vote and were arbitrarily or 
 improperly refused, their votes should be counted as if cast. 
 Smalls vs. Elliott {minority report) , 50th Cong Mobley, 711 
 
856 DIGEST OF CONTESTED ELECTION CASES. 
 
 Persons otherwise qualified as voters who attempted to get certificates of registration 
 and were prevented by the action of the registering officers, were legal voters, and 
 if they tendered their votes to the judges of election and were refused, their votes 
 should be counted on a contest. 
 
 Miller YS. Elliott, 61st Cong Rowell, 515 
 
 Where votes were rejected by the judges because of real or assumed doubts as to the 
 
 identity oi the, voters presenting themselves, lield, that where their identity is 
 
 clearly established these votes must be counted for the candidate for whom they 
 
 were tendered. 
 
 Mudd vs. Compton, Slsl Cong - - Rowell, 155 
 
 Befused because others voted on same names, counted by committee. 
 The committee held that "the votes of legal voters who duly offered to vote and had 
 their votes refused, the judges truthfully or falsely alleging that some one else had 
 previously voted on the name, should be counted for the candidate for whom it is 
 proved they offered to vote. It is bad enough that a person who has no right to 
 vote gets his vote in; it would be worse if by getting his vote in he kept an honest 
 man's vote out." The minority held that such votes were properly rejected and 
 should not be counted. 
 
 Mudd vs. Compton, 51st Cong Rowell, 152, 167 
 
 Legal voters who were refused the right to vote on the ground that others had 
 already voted on their names were counted by the committee for the candidate 
 for whom they would have voted. 
 Booze vs. Rusk, 54th Cong Report 849 
 
 Registration purposely made irregular, votes rejected counted. 
 Votes rejected because of irregularities in the entries on the registration book, pur- 
 posely placed there by the registration- officers in order to invalidate the votes, 
 were counted by the committee for the candidate for whom they would have been 
 cast. Where the number was large and unascertainable, and there were other 
 frauds, the whole poll was thrown out. 
 
 Martin vs. Lockhart, 54th Cong Report 2002 
 
 Judges refused to deposit ballots; whole polls thrown out. 
 Where a large number of -voters tendered their ballots to the judges (under the 
 North Carolina six-box law) and the judges refused to deposit them unless handed 
 in one at a time, and the voters refused to separate them and left them on the 
 table, and there were other wrongs, making "it impossible to determine the cor- 
 rect vote of the precinct, the committee threw it out. The minority held that the 
 voters should have obeyed the reasonable request of the judges. 
 
 Martin vs. Lockhart, 54th Cong Report 2002 
 
 Only " lawful votes; lawfully tendered and unlawfully refused " can be counted. 
 It is the safer and better rule, where the evidence will warrant it, " to count lawful 
 votes, lawfully tendered and unlawfully refused, where the number is sufficient to 
 change the result and it is known for what candidate the elector intended to vote. 
 But before the vote can be counted it ought to appear by competent evidence that 
 qualified electors, sufficient in number to change the result, had lawfully tendered 
 their votes and were unlawfully rejected, and for whom the rejected voters would 
 have voted." 
 
 Johnston vs. Stokes, 54th Cong Report 1229, p. 12 
 
 Where no reason appears, rejection presumed legal. 
 Where some votes offered at one precinct had been rejected, but the reason did not 
 appear, it was presumed to have been good, and the votes were allowed to stand. 
 Watson vs. Black, 53d Cong , Report 1147, p. 10 
 
 Rejection presumed legal where no proof that it was not. 
 Votes were offered and rejected on the ground that the applicants had not been ro- 
 istered at the May registration (in Alabama), but as there was no evidence that 
 they were offered by persons wTio came within the excepted classes permitted to 
 register after May, the committee held that the rejection was proper. 
 
 Ooodwyn vs. Cobb, 54th Cong Report 1122, p. 1 
 
VOTES. 857 
 
 If names on original reifiBtry list, votes to be counted. 
 " Where names appear on original registration books, but do not appear on copies 
 furnished precinct judges, it is an error to reject the votes of such electors, and 
 their votes are to be counted," but there must be satisfactory proof showing for 
 whom they offered to vote. (Cases cited.) 
 
 Bell vs. Snyder, 43d Cong Smith, 251 
 
 A voter whose name was on the registry list, but whose name had been left off of the 
 copy of the list in the hands of the officers at the polls, has a right to vote, in Mis- 
 souri. But the evidence that the election officers erred in rejecting his vote must 
 be clear and conclusive. 
 
 Frost\s. Metcalfe, 45th Cong 1 Ells., 290 
 
 Illegally struck from registry list, and offered to vote and were refused, counted by 
 the committee. 
 Where the "board of revision" of the city of St. Louis, acting without authority of 
 law, and in such an unfair manner as to amount to fraud, struck from the registry 
 lists the names of a large number of voters, the committee counted for the candi- 
 date for whom they offered to vote the votes of such as were shown to be qualified 
 electors, to have been duly registered, and to have offered to vote, but to have been 
 refused because their names were not on the list as revised, and also a number of 
 votes rejected by the election officers for trivial reasons. 
 Sesginghaus ys. Frost, 47th Cong : 2 Ells., 381-394 
 
 Names not on poll book counted by committee even wben forbidden to be counted by 
 judges. 
 A large number of votes were rejected because the voters, who had duly applied for 
 registration and been registered, found their names omitted from or inaccurately 
 copied on the poll books. It was claimed that these votes could not be counted, 
 because the law of Maryland makes the poll books conclusive evidence of the right 
 of a man to vote. Held, that the law simply lays down a rule of evidence for the 
 guidance of the judges of election, so as to reduce to a minimum their judicial func- 
 tions. The votes should be counted on a contest. The minority held otherwise. 
 
 Mudd vs. Cormpton, 51st Cong Bowell, 153 
 
 Only such as could have been counted by the judges can be counted. 
 "Whenever a voter did tender his vote and his name was upon the list of voters 
 furnished to the judges of election, although the middle name or, initial might be 
 wrongly entered, still his vote should be counted as it should have been received 
 by the judges, the object of registration being for the purpose of identification of a 
 voter, or if the name given by the voter was idem sonans with the name registered. 
 * * * The vote of no person whose name did not appear, either properly or at 
 least by 'idem sonans,' could have been received by the judges, nor can they be 
 counted by us." 
 
 Mudd ye. Compton {minority report), 51stCong Kowell, 166 
 
 Offer of votes and illegality of refusal must be clearly and specifically shown. 
 "An unlawful refusal on the part of the registration officers to register a qualified 
 elector is a good ground for contest; but in order to make it available the proof 
 should clearly show the name of the elector who offered to register, that he was a 
 duly qualified voter, and the reason whj^ the officer refused to register him; and 
 under the statutes of the United States, if he offered to perform all that was neces- 
 sary to be done by him to register and was refused, and afterwards presented him- 
 self at the. proper voting place and offered to vote and again offered to perform 
 everything required of him under the law and his vote was still refused, it would 
 be the duty of the House to see to it that he is not deprived of his right to partici- 
 pate in the choice of his officers." But in a case where the proof fell far short of 
 this requirement, though it was evident that contestant lost many votes on account 
 of the arbitrary action of registering and election officers, the committee did not 
 count any additional votes for him. 
 
 Buchanan vs. Manning, 47th Cong 2 Ells., 296 
 
858 DIGEST OF CONTESTED ELECTION CASES. 
 
 Hast be proved legal by same evidence required on election day. 
 Where votes have been rejected by the election officers, "under the law they can 
 not be counted unless each voter has adduced in the contest the same proof in 
 every respect which would have entitled him to vote at the polls on the day of 
 election." 
 
 Bisbee vs. Flrdey {minority report), 47th Cong 2 Ells., 227 
 
 Presumed to bave been legally rejected. 
 Where voters offer their ballots and are refused by the election judges, no reasons 
 being given actuating them, the presumption is that the judges did their duty and 
 that the votes were legally excluded. 
 
 Garrison vs. Mayo, 48th Cong Mobley, 58 
 
 Votes of qualified and registered voters rejected by the election officers on the ground 
 that the voters had not presented registration certificates, the law only requiring 
 the presentation of such certificates when the name of the voter was not found on 
 the registry list in the hands of the judges, were unanimously counted by the com- 
 mittee. The majority of the committee also counted the votes of qualified voters 
 who had either been unlawfully refused registry or whose names had been unlaw- 
 fully stricken from the registry lists, and whose votes had been tendered to the 
 officers of election and refused. The minority held that the proof of the qualifica- 
 tion of most of these voters was insufficient. 
 
 Goodrich vs. Bullock, 61st Cong Rowell, 581-629 
 
 Certain votes "were rejected by the inspectors because the names of the persons 
 offering them were not found on the registration list. In the absence of proof to 
 the contrary there is a legitimate presumption that they were properly rejected. 
 It has been repeatedly decided by the House of Representatives that the acts of 
 proper officers, acting within the sphere of their duties, must be presumed to be 
 correct unless shown to be otherwise." 
 
 Goodrich vs. Bulloch {minority report), 51st Cong Eowell, 613 
 
 Vitiates wbole poll. 
 "It is an established principle of law that where voters are kept from voting by an 
 illegal requirement of the election officers, it voids the election at such polls. ' ' 
 Donnelly vs. Washhum {majority report), 46th Cong .1 EUs., 458 
 
 CONSTEUCTIVELY REJECTED. 
 
 Obstructive tactics of election officers constructive rejection. 
 Where a large number of voters, intending to vote for contestant, were standing in 
 line all day waiting for an opportunity to vote, but had not yet reached the window 
 when the polls were closed, and the evidence, according to the majority of the 
 committee, showed that this delay was due to the intentional acts of the officers of 
 election and of challengers in collusion with them, the committee held that these 
 votes had been legally tendered and rejected, and should be counted upon proof 
 of the intention of the voters to vote for a particular candidate. The minority 
 found that the evidence did not show that the delay was due to fraudulent acts of 
 the election officers, but that most of it was necessary under the circumstances, 
 and the rest was caused by the action of partisans of contestant. They held that 
 the law as laid down by courts was that votes not cast could not be counted, but, 
 according to the precedents of the House of Representatives, votes actually tendered 
 and illegally rejected might be counted. These were not actually tendered. If the 
 delay had been due to fraud, there would have been no fair election, and the seat 
 should be declared vacant. But there being no fraud, the established rule would 
 keep the contestee in his seat. But the minority were not satisfied of the justice 
 of the established rule and recommended that tlie seat be declared vacant. The 
 House sustained the majority. 
 
 Waddillys. If/.sr, 61st Cong Eowell, 203-253 
 
VOTES. 859 
 
 Prevented from being cast by threats in presence of officers of election, counted by 
 
 committee. 
 
 Where a voter was prevented from voting by "threats of violence made in the 
 
 presence of the board, and against which it was their duty to protect him and 
 
 which they did not do, " the committee counted his vote for the candidate for whom 
 
 he would have voted. 
 
 Covode vs. Foster, 41st Cong 2 Bart., 611 
 
 Constructive rejection by undue delay. 
 If by fraudulent challenges, unduly prolonged by the connivance and collusion of 
 the judges of the election, the voter is deprived of the opportunity to vote, the 
 vote should be counted. If the fraudulent exclusion of votes would, if success- 
 ful, give to the party of the wrongdoer a temporary seat in Congress, and the only 
 penalty possible were merely a new election, giving another chance for similar tactics, 
 a real election might be indefinitely prevented. But if, when such acts are done, 
 the votes are counted upon clear proof aliunde, the wrong is at once corrected, and 
 no encouragement given to such dangerous and disgraceful methods. 
 
 Waddill vs. Wise, 51st Cong Eowell, 224 
 
 What constitutes tender. 
 The ability to reach the window and actually tender the ticket to the judges is not 
 essential in all cases to constitute a good offer to vote. From the time the voter 
 reaches the polling place and takes his position in line to secure his orderly turn 
 in voting he has commenced the act of voting. 
 
 Waddill vs. y^ise, 51st Cong Rowell, 224 
 
 Must be specifically proved. 
 Where the evidence tended to show that a number of voters desiring to vote for con- 
 testant were prevented from voting by being refused opportunity to register, but 
 the only evidence as to their number was an estimate from the appearance of the 
 crowd and the number of tickets issued as "about two hundred." it was held to 
 be "altogether too indefinite." 
 
 Norris vs. Handley, 4^d Cong Smith, 74 
 
 Where there were two lines of voters, one white and one colored, and the judges 
 required them to vote alternately, and the colored line being much the longer, there 
 was still a large number of voters in it who had not voted at the close of the polls, 
 and the testimony showed that most of them were intending to vote for contestant, 
 but they themselves were not called as witnesses. Held, that their votes could not 
 be counted for contestant, but that if their number had equaled or exceeded the plu- 
 rality returned for the contestee, so that the legality of the election depended upon 
 them, it would invalidate his election with no further proof, and make a new elec- 
 tion necessary. (For ruling under a different state of facts, see Waddill vs. Wise.) 
 Langston vs. Venable, 51st Cong Rowell, 464 
 
 Can not be counted unless ofTered at the polls and illegally rejected. 
 "To count votes that were never offered at any poll is carrying the doctrine further 
 than we ever knew it. To authorize this committee to count a vote, four things 
 are requisite: First, the person offering to vote must have been a legal voter at the 
 place he offered to vote; second, he must have offered his vote; third, it must 
 have been rejected; and fourth, it must be shown for whom he offered to vote." 
 Frost vs. Metcalfe, 64th Cong 1 Ells., 291 
 
 Must be actually tendered. 
 "To hold that anything short of an actual tender of the ballot to the election offi- 
 cers and a rejection by them was an offer to vote would be a most dangerous and 
 uncertain rule, and one to which we can not give our sanction. Where the evi- 
 dence plainly establishes the fact that a legal voter offers his ballot to the election 
 officers and they unlawfully reject the same, under the precedents heretofore 
 established such vote may be counted for the candidate for whom the voter offered 
 to vote." 
 
 Waddill vs. Wise (minority report) , 6 1st Cong Rowell, 252 
 
860 DIGEST OF CONTESTED ELECTION CASES. 
 
 Not attempted to be cast, not counted. 
 A large number of witnesses testified that they were legal voters and had been 
 refused registration, but very few of them appeared at the polls and offered to 
 vote, and there was no evidence that the registration officers had demanded more 
 proof of qualification than the law required, or that the applicants had offered all 
 that was required, so the committee did not count the votes. 
 
 Denny vs. Oioens, 54th Cong Report, 1877 
 
 Counted, on proof. 
 The committee restored votes lost to contestant by the intimidation of boisterous 
 election officers and challengers, by frivolous arrests, and by the delay in opening 
 a poll where the ballots had been stolen. 
 Aldrich vs. Underwood, 64th Cong Eeport, 2006 
 
 Vague testimony — how many " would have voted " — inadmissible. 
 ' ' Contestant has sought to introduce the testimony of witnesses who give their opinion 
 as to the number of persons who would have voted for him at certain places with- 
 out stating who they were or giving any other particulars, but the committee is of 
 the opinion that testimony of this character is not admissible." 
 In this case, moreover, the testimony was too vague and indefinite to be trustworthy 
 if admissible. 
 
 Moorman vs. Latimer, 54th Cong Report 626, p. 4 
 
 Evidence must establish qualification and efTort of voters. 
 "It is a matter of serious import and precedent to introduce into an election the 
 count of a large disfranchised class; but if the principle is good as to 4 or 40 or 400, 
 it should certainly be no less available for a larger number, or, briefly, the number 
 is immaterial if capable of correct' computation." Where the evidence consisted 
 largely of petitions to Congress, signed by the rejected voters at the polls, the com- 
 mittee said: " It is considered by a majority of this committee that these lists are 
 not per se evidence in the pending contest. They are declarations, important 
 parts of which should be proven in accordance with usual legal forms. It is not 
 impossible so to do, and consequently we think it necessary for reaching trust- 
 worthy results. Under the authority of Vallandigham vs. Campbell (IBart., 31), 
 these declarations might serve a use beyond a mere list for verification." The 
 evidence should establish that the persons named in the lists were voters 
 according to the constitution of South Carolina, that they were present at or near 
 the voting place for the purpose of voting, and that they would have voted for 
 contestant. 
 
 Wilson vs. McLaurin, 54th Cong Eeport, 1566 
 
 Counted on proof. 
 The committee counted the votes of a large number of voters who testified that they 
 were still in line when the polls closed, intending to vote for contestant, there 
 being other evidence to show that the delay which prevented them from voting 
 was unnecessary and intentional. 
 
 TlMrp vs. Epes, 55th Cong ■ Report, 428 
 
 Can not be counted under the Australian system. 
 " Votes not cast can not be counted as a matter of law generally. No contrary opin- 
 ion can be cited from the adjudged c^es of the ordinary courts of any of the States 
 of the Union. This was a uniform rule of the House of Representatives until 1873." 
 The subsequent cases to the contrary were decided before the adoption of the 
 Australian ballot system, which requires of the voter not only a clear expression of 
 his intention, but an expression in a certain manner, and disregards an expression, 
 even if equally clear, made m any other manner. "A counting of votes not cast 
 under any form of the Australian ballot law is to admit parol testimony as to the 
 intention of voters in regard to an act that is by no means altogether dependent on 
 such intention." 
 
 Thorp vs. E^es (minority report), 55th Cong Eeport 428, pt. 2, p. 7 
 
VOTES. 861 
 
 Connted by committee on proof. 
 Where a large number of voters were prevented from voting by the deliberately 
 obstructive tactics of the election officers, the committee counted the votes on proof 
 of the intention and sufficient effort of the vot«r to vote. 
 
 Wise vs. Young, 65th Cong Report 772, pp. 15, 16 
 
 The minority refused to count the votes, not agreeing as to the law, and alleging that 
 the proof was insufficient. 
 
 Wise vs. Young {rmnority report), 66th Cong Report 772, pt. 2, p. 15 
 
 Excluded by obstruction, counted on proof. 
 Where two lines were formed, one for white and one for colored voters, and the con- 
 duct of the election was dilatory, with the result that all the white and only half of 
 the colored votes were cast, the committee counted those of the remainder whose 
 testimony clearly showed that they had made earnest and sufficient effort to reach 
 the polls, were qualified voterg, and intended to vote for contestant. 
 
 Brown vs. Swanson, 56th Cong Report 1070 
 
 The "majority" agreed as to the law, but denied the sufficiency of the evidence. 
 ' Broum vs. Swanson {"views of the majority") , 65th Cong Report 1070, pt. 2 
 
 Immaterial whether excluded by fraud or error. 
 Where votes failed to be cast before the close of the polls, through no fault of the 
 
 voters, the committee said : 
 "For the purposes of this question it is immaterial whether the votes were excluded 
 by the actual fraud of election officers or error of judgment on the part of admin- 
 istrative officers in creating precincts so large that all the votes could not be polled. ' ' 
 Brown vs. Swanson, 55th Cong Report 1070, p. 6 
 
 Where numerous, poll rejected or vote counted, according to circumstances. 
 "The purpose of elections is to register the will of a majority of the voters, and it is 
 the duty of the officers of the law to afford every qualified voter a reasonable 
 opportunity to exercise the important right of suffrage. If that opportunity is 
 afforded and the voter fails to avail himself of it, or if by some fault of his own he 
 violates some regulation in attempting to exercise the right and thereby loses his 
 vote, he can have no just cause of complaint. But if conditions exist, for which 
 the voter is not responsible, that operate to defeat the rights of a substantial num- 
 ber of electors to vote, so that it can not be said that the result at a particular poll 
 reflects the will of a majority of the voters, it discredits the entire poll. * » * 
 Where, however, the rejection of the poll might aggravate the wrong or would 
 defeat the ends of justice, and it is shown by reasonably satisfactory evidence the 
 number of votes so excluded and for whom they would have been cast, had there 
 been an opportunity, the poll will be considered and the excluded votes will be 
 counted for the candidate who would have received them. This has been the rule 
 of the House for many years, and is based upon principles of justice and a wise 
 public policy." 
 
 Brown vs. Swanson, 66th Cong Report 1070, pp. 5,6 
 
 VOTING MACHINE. 
 
 Question of legality not decided. 
 A voting machine was used in the city of Rochester, and the election was contested 
 on this ground. No one was deprived of his vote; there were ballots provided, 
 which any voter could have used (butnonedid), and contestee had a large majority 
 in the district outside of Rochester. "The views above expressed make it unneces- 
 sary to pass upon the legality of the Myers ballot machine." 
 
 Ryan vs. Brewster, 55th Cong , . . , Report 892 
 
862 DIGEST OF CONTESTED ■ ELECTION CASES. 
 
 WAIVES (see also Agfreement, Admission, and Estoppel). 
 
 Waiver of rights nnder tie election binding. 
 Where there was a tie at an election, and both candidates, in written communications 
 to the governor, voluntarily relinquished all rights under it, but a petition was 
 received alleging that ballots found in other boxes indicated an intention on the 
 part of a plurality of electors to elect the candidate defeated at the election subse- 
 quently held, the committee held that the relinquishment of rights under the first 
 election was binding. 
 
 Sergeant, 19th Cong ---C. and H., 516 
 
 Where votes were admitted to be bad, but proved to be good, they must be counted. 
 Where each party assumed the burden of showing the legality of votes cast for him 
 and charged to be illegal, and the written stipulations in two counties reserved the 
 right of proving the qualifications of voters attacked, but in the remaining counties 
 there was no such reservation, and the votes seem to have been admitted bad 
 unconditionally, "the committee, however, were of opinion that, although there 
 was no express reservation in the last-named counties, yet, if affirmative and satis- 
 . factory proof should be offered showing that the votes objected to were, in point 
 of fact, given by persons duly qualified to vote, that the parties would have no 
 right to stipulate that such votes should be disregarded; and that the stipulation 
 would be only received as prima facie evidence of the want of the necessary quali- 
 fication of the voter." 
 
 Draper vs. Johnston, SSd Cong C. and H., 702-714 
 
 Waiver of time of service of notice of contest. 
 Where the notice of contest was served before the result had been declared the com- 
 mittee were "of opinion that this was a defect which the sitting delegate could 
 waive, and that by answering after the result had been proclaimed and within the 
 time when a new notice of contest could have been served, without availing him- 
 self of the objection, and proceeding to take the testimony, he had waived the 
 right to object to it at the hearing." 
 
 Todd vs. Jayne, S8th Cong 1 Bart. , 557 
 
 Objection to sufficiency of notice not made in time. 
 Where contestee objected that the notice of contest did not "specify particularly" 
 the grounds of contest, but no such objection was raised in the answer to the notice, 
 or in the first argument before the committee, but only in the last printed brief, 
 the committee held that the objection came too late. 
 
 McKee vs. Young, 40th Cong 2 Bart, 427 
 
 Defects in notice of contest may be waived. 
 That defects in the notice of contest may be waived has been determined by at least 
 two decisions of the House (Otero vs. Gallegos, 1 Bart., 178; Bromberg ts. Haral- 
 son, Smith, 356). An agreement in writing entered into by the parties, in which it 
 was stipulated that the evidence offered by contestant should be and remain in 
 the contest as part of contestant's case in consideration of additional time being 
 granted to contestee in which to take testimony, constitutes such waiver. 
 
 Duffy vs. Mason, 46th Cong 1 Ells., 363 
 
 Hearsay evidence admitted if by express or tacit consent of both parties. 
 A certified copy of evidence taken by a canvassing board and spread upon their 
 record, they not being required or authorized to make any such record, is hearsay 
 only, but may be accepted as evidence if included in the record by the express or 
 tacit consent of both parties. 
 
 Sullivan vs. Felton, 50th Cong Mobley, 770 
 
 Testimony taken out of time not objected to, received. 
 Where parties in ignorance of the law of 1873 took testimony under the former law 
 until after the expiration of the forty days allowed contestant under the law of 
 1873, and contestee did not at first object, the committee received all the testimony 
 taken up to the time of his first objection and excluded the remainder. 
 
 Buttz vs. Mackey, 44th Cong Smith, 684 
 
WAIVER. 863 
 
 Testimony taken out of time, excluded even where objection waived. 
 Where contestee had in his oral argument before the committee waived 'all objections 
 to the consideration of testimony taken out of time the committee held tliat "the 
 people of the district have interests and rights which can not be thus taken from 
 them," and with but one dissenting vote excluded the testimony. 
 
 Bradley vs. Slemons, 46th Cong 1 Ells., 310 
 
 Disq;Qalified notary not objected to, evidence considered. 
 Evidence was taken outside the district before a notary resident of the district, but 
 objection was made on this ground at the taking of the testimony of only one 
 witness. The committee considered the testimony of the others. "As to the 
 others the absence of objection warrants the inference of consent and their evidence 
 is legally before the House." 
 
 Goodwyn vs. Cobh, S4th Cong Report 1122, p. 5 
 
 Disqualified notary not objected to in time, evidence considered. 
 Testimony had been taken in New York County before a notary, who, by his recent 
 removal from Kings to New York County, had probably technically vacated his 
 office, but no objection to his competency was entered until the taking of testi- 
 mony in rebuttal. The committee held that objection to the testimony in chief 
 was therefore waived. 
 
 Mitchell vs. Walsh, 54lh Cong. Report 1849 
 
 Parties can not entirely waive the requirements of the statute. 
 Where no notice of contest or answer had been served, but contestant presented a 
 letter from contestee which he held was a waiver of notice, the committee, with- 
 out deciding the question of the proper construction to be given this letter, held 
 ' ' that it was not competent for the parties to entirely waive the requirements of the 
 statute of 1851; that said statute was enacted not only to aid the parties in the pre- 
 paration of their case, but also to secure a record and a distinct and well-defined 
 issue upon which the committee and the House were to pass. * * * It must 
 be evident to every one that it is impossible for the committee or the House to 
 hear and determine a case without an issue joined." 
 
 Thomas vs. Amell, S9lh Cong 2 Bart., 163- 
 
 The parties to a contest have no power to waive the provisions of the statute as to 
 
 the time for taking testimony, but should appeal to the House, or, if the right to 
 
 make such agreement is conceded, the agreement should certainly be in writing. 
 
 Page vs. Pirce [minorUy report ) , 49th Cong Mobley , 477 
 
 Parties can not admit away the rights of the people. 
 "The constituency are the real parties in interest; the claimants can neither add to 
 nor impair the rights of the people by any admissions or omissions of their own." 
 Wallace vs. Simpson ( majority report ), 41st Cong 2 Bart. , 55 7 
 
 Right of waiver in election contests limited by rights of the public. 
 "We recognize the value and importance of the doctrine of waiver in cases where it 
 is fairly applicable. Where parties sui jurii, representing only their own private 
 interests, do any act amounting clearly to a waiver a court may well act upon it. 
 But no man has the legal right to estop the public as to their constitutional right 
 to representation by any act of omission." 
 
 Abbott vs. Frost {minority report), 44th Cong Smith, 627 
 
 Presence and cross-examination a waiver of objections. 
 Where contestant took testimony in regard to the votes of thirteen persons whose 
 names were not included in the nptice to take depositions, but the counsel of the 
 sitting member was present at the taking of the depositions and made no objec- 
 tions, the point was held to be waived. 
 
 Bell vs. Snyder, 43d Cong Smith, 255 
 
864 DIGEST OF CONTESTED ELECTION CASES. 
 
 Objection to teatimony mast be made before record is printed. 
 No part of the printed testimony in a case will be suppressed where parties fail to 
 take advantage of the statute permitting them to appear before the Clerk of the 
 House prior to the printing of the record and agree as to what portions of the same 
 shall be printed. 
 
 Featherslon vs. Gate, 61st Cong Eowell, 111 
 
 Lowry vs. White, SOlh Cong Mobley, 624 
 
 WEST VIRGINIA. 
 
 When Berkeley County transferred. 
 
 The county of Berkeley remained a part of Vir^nia until the assent of the people of 
 the county, of the legislature of West Virginia, and of Congress was given to its 
 transfer to West Virginia, and it retained ite right to vote for a representative from 
 Virginia until the change was completed. 
 
 McKenzle vs. Kitchen, 38th Cuny 1 Bart., 468 
 
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