Book_ IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES .Sixty-First Congress coNTi':si i:i) i:li:ction case OF JOHN M. PARSONS CONTESTANT V. EDWARD W. SAUNDERS CONTESTEE FROM THE FIFTH CONGRESSIONAL DISTRICT OF VIRGINIA ARGUMENTS OF COUNSEL BEFORE COMMITTEE ON ELECTIONS NO. 2 J. H. CARRICO, Esq. Hon. a. J. MONTAGUE Hon. JOHN M. THURSTON Attorneys for Contestant Hon. EDWARD W. SAUNDERS As Contestee WASHINGTON GOVERNMENT PRINTING OFFICE 1910 3 S ■' ■' ^ IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES Sixty-First Congeess CONTESTED ELECTION CASE OF ., /, J JOHN M. PARSONS CONTESTANT ^/^ V. EDWARD W. SAUNDERS CONTESTEE FROM THE FIFTH CONGRESSIONAL DISTRICT OF VIRGINIA ARGUMENTS OF COUNSEL BEFORE COMMITTEE ON ELECTIONS NO. 2 J. H. CARRICO, Esq. Hon. a. J. MONTAGUE Hon. JOHN M. THURSTON Attorneys for Contestant Hon. EDWARD W. SAUNDERS As Contestee WASHINGTON GOVERNMENT PRINTING OFFICE 1910 Committee on Elections No. 2. JAMES M. MILLER, KANSAS, Chairman. JAMES F. BURKE, Pennsylvania. DUNCAN E. McKINLAY, California. JOHN M. NELSON, Wisconsin. JOSEPH HOWELL, Utah. WILLIAM S. BENNET, New Yoek. WILLIAM E. TOU VELLE, Ohio. JAMES A. HAMILL, New Jeesey. CHARLES A. KORBLY, Indiana. Albert P. Myers, Clerk. D« OF D, r CONTESTED ELECTION CASE OF JOHN M. PAHSONS v EDWARD W. SAUNDERS, FROM THE FIFTH CONGRESSIONAL DISTRICT OF VIRGINIA. Committee on Elections No. 2, House of Representatives, Wednesday, March 2, 1910. The coinmittee met at 10.30 o'clock a. m., Hon. James M. Miller (chairman) presiding. Present on behalf of the contestant, Hon. John M. Thurston, Hon. A. J. Montague, and J. H. Carrico, esq. The contestee appeared in proper person. The Chairman. The committee will be in order. The subcommit- tee is ready to report and we will receive their report the first thing. Mr. Bennet. Mr. Chairman, for the subcommittee w^e have to report that we counted the ballots, some 14,000, and report that there were cast for Mr. Saunders 7,025 ballots; for Mt. Parsons 6,910 bal- lots: for Mr. Mathew, 1,5 ballots. That we report to the full com- mittee 239 ballots as void; that there were 115 doubtful or contested; that there were 79 ballots from which the voter erased the name of Mr. Parsons, leaving on the names of both Mr. Saunders and Mr. Mathew, and that there were 133 ballots from which the name of Mr. Saunders was erased and the names of ]Mr. Parsons and Mr. Mathew were left; that we have not counted these ballots in either instance for Mr. Saunders or Mr. Parsons, but report them to the full committee for its action. The Chairman. If there is no objection, the report of the subcom- mittee will be received and filed, and no action will be taken on it at this time in view of the fact that I think both sides want to argue some propositions in reference to these ballots for the purpose of determining the count under the law of the State of Virginia. Have you gentlemen any agreement as to time, how long you want on each side ? If you folks will make some suggestions to the committee, we will be glad to follow them, if we can. Mr. Thurston. Mr. Chairman, I was speaking with Mr. Saunders, and we have not reached any meeting of minds on that subject. There is only one suggestion I would like to make to the committee. If there is to be a time hmit I would like it fixed before the argument commences, so that we can adjust ourselves to it. We are in the hands of the committee entirely, and willing to follow any rule you may wish to adopt. On our side I think we could give the committee a fair understanding of our case, opening and closing arguments, in about three hours, which I would suggest, if there is to be a time limit fixed. The Chairman. Three hours for the entire argument on each side ? Mr. Thurston. Three hours on each side. 4 PAHSOIsrS vs. SAUNDEKS. The Chairman. Six hours altogether. Mr. Saunders. Mr. Chairman, as Senator Thurston has said, I talked with him about the matter this morning for just a moment. ■ I have only to say now what I said heretofore when this question as to a time limit was first asked me, and that is that the only request in connection with this case which I wish to submit to the committee is one for ample time for argument. I want no delay or anything of that sort in connection with the hearing, but this is a case which, with respect to the variety of points to be considered in relation to the Virginia laws, as well as in relation to what you may call the larger questions of law outside of the laws local to Virginia, can not be presented in any limited time in such a manner as to make the argument of any service to the committee. The committee has either to do an immense amount of work of its own volition, without regard to the aid counsel may give it, or it can limit that amount of work, curtail the same, and relieve itself, by securing the help of counsel who have been over the entire ground, whether of law or fact. I have been over this case with a view to putting my con- clusions in such shape that I may be of aid to the committee. I have run down every question of law connected with this inquiry, have run down the evidence relating to every contested vote, and I think that, with respect to the work of the committee, I can be of aid to them by an oral argument not too limited as to time. I think after the committee gets into this case it will find that if an argu- ment is to be of any value at all it would be with reference to those phases of the case of which I have spoken. I would suggest, and I suggested this to Senator Thurston, that it would be better for the committee to proceed for a while so as to get some idea of the scope of this case and of the questions that will be brought into it, and then let them determine on the limitations of the argument. You will find when you take up this case that there is, I may say, an infinite variety of details to be considered in the light of the evidence and of the laws of Virginia, as well as of the general laws. I want to be of help to the committee by presenting my case in such a way as will aid them to secure the information that they will have to secure in order to arrive at that comprehensive view of this case that will be essential before a decision can be rendered on the merits. The Chairman. What would you suggest to the committee as a reasonable length of time ? Mr. Saunders. I would suggest this, to permit us to go far enough into the case for the committee to secure that knowledge of which I speak, namely, a knowledge of the scope of this case. There is not a proposition of law that will be advanced here — save those outside of the State — with which the committee will not find themselves unfamiliar. There are questions of law arising under our own con- stitution that will have to be argued as separate propositions, and will, in themselves, require no little time. There are other features of our law, that will not require so much time for argument, but this law will have to be applied to a number of specific cases, and these cases must be run down and related to the appropriate law. This I wish to do in my time. I do not want a moment of time, unless in that moment I can be of help to the committee. Mr. Thurston. I do not see, Mr. Chairman, how it would be at all fair to us to start in without any time limit and fix one afterwards. PAESONS VS. SAUNDERS. Mr. Saunders. It seems to me it would be as fair for one side as for the other. Mr. Thurston. We would have to make our opening statement. I would not want to have the responsibility thrown upon me in making the closing argument of answering ad libitum everything that might be drawn out in an extensive argument. Mr. Saunders. If the Senator will pardon me, I will say this, if what I put in my argument is of no value, it will not trouble you to answer it; if it is of value, the committee should know it. Mr. Thurston. Whatever time we have we want to divide among ourselves, and I want to throw some of the labor on my associates who have to talk before I do, if there is to be any time limit. Mr. Saunders. If the committee will pardon me, I wish to refer for a moment to the brief which the gentlemen have filed with respect to the contested ballots. In relation to these ballots: These ballots were cast for the one or the other of the candidates and are affected in each case with a designated disability. With respect to each individual voter that they have cited, I have made an inquiry as to the same, and I am prepared to show in such a way that these gentlemen can not controvert it, because it will be done from the record, that in many cases the references of the contestant are utterly inadequate to the disposition of the case. You will have to make this inquiry either apart from our help or it can be done with our help. I do not wish to consume a moment of the committee's time save in such a way as to be helpful to the committee in deter- mining these inquiries. I have been at a great deal of pains to segre- gate the various facts of this case. Mr. Bennet. I move that, without fixing any time limit at this time, the committee instruct counsel that it is the sense of the com- mittee that they endeavor to confine their arguments on each side to five hours on a side. That leaves them free, either side, if they find they can not complete in a less time. Mr. Thurston. I do not suppose the committee will require us to occupy all the time ? [Laughter.] Mr. Bennet. No. The Chairman. We will be very glad if you do not. [Renewed laughter.] (The motion having been seconded and the question put, the mo- tion was carried.) The Chairman. I want to say, as far as I am personally concerned, and I t]iink I am speaking also for the committee, that we are anxious to get all the help we possibly can from counsel, and before you start into the argument I want to make a statement of this case as I under- stand it, not speaking for the committee now, but for myself. The contestant in the case claims his right to sit in this Congress by rea- son of the fact, as he alleges, that the State of Virginia by its legisla- ture, after the census of 1900, redistricted the State, and following that redistricting they again changed the districts of the State in 1908, taking one county out of the Fifth Congressional District and adding it to the Sixth Congressional District. The contestant claims that, having exhausted the power or authority of the State under the census of 1900 once, they had no authority or power after that time, during that census period of ten years, to make any changes in the boundaries of the districts. 6 PAESONS VS. SAUNDERS. In the second place, the contestant claims that even though the State had the right to redistrict the State in 1908 as it did, having the right at any time during the census period to make any changes in congressional districts that the State may desire, it had no right to make such changes as were made by the legislature of Virginia in 1908, because of the constitutional provision of the State of Virginia which requires that in the redistricting of the State for congressional purposes the districts must be compact, contiguous, and, as nearly as possible, equal in population. It is alleged here by the contestant that the Fifth Congressional District of Virginia, prior to the redis- tricting of 1908, had a population of 175,579; that the vSixth Con- gressional District had a population of 181,571; that the legislature of the State of Virginia at that time provided that the county of Floyd should be taken out of the Fifth Congressional District, this count}^ having a population of about 15,000, and added to the Sixth Congressional District, which would give to the Fifth Congressional District a population of 160,191, and the Sixth Congressional District a population of 196,959. It is further alleged by the contestant that a number of ballots were thrown out by the judges of election in this congressional district at the election held November 3, 1908, by reason of the fact that more than one name appeared under the congressional designation as a candidate for Congress, and it appears from the evidence in this case that some years prior to this election one Elliott Mathew, whose name appears upon the ballots as a candidate for Congress, had been adjudged insane, and for several years had been a patient at the state hospital for the insane of the State of Virginia. That prior to the election of 1908 he made his escape from the hospital, and while at large he wrote a letter to the secretary of the Commonwealth asking to have his name placed upon the ballot in this district as a candidate for Congress. It is claimed by contestant that Mathew having been adjudged insane and being insane at this time, his name being upon the ballot is a nullity, and ought not to have any legal force or effect in the question of counting the ballots as returned in this election contest. It is further claimed by contestant that there were a large number of voters voted for thecontestee in this district at the election of 1908 who were not legally qualified under the laws of Virginia to vote, not having paid their poll tax or having whatever other legal qualifications are necessary to entitle a man to vote under the laws of the State of Virginia. It is claimed on the part of the contestee that the State of Virginia had a right at any time during the census period to make such changes in its congressional districts as it might desire to make, notwithstand- ing the constitutional provision in reference to redistricting the State; that it had a right to make such a change as was made in 1908 by the legislature of Virginia. It is further claimed by the contestee that even though Mr. Elliott Mathew had been adjudged insane and was insane at the time of asking that his name be put upon the ballot, he had a right to have his name on the ballot and to be voted for by any person who might desire to vote for him for Congress. It is also claimed on the part of the contestee that many, if not all, of the votes that are challenged here by reason of the parties not PABSONS VS. SAUNDERS. 7 beinw on the poll-tax list should be counted, as those parties were still entitled to vote under the laws of the State of Virginia, if they had paid their taxes, as required by law. It is conceded on the part of the contestee here that if the com- mittee should find that the State had no right to make the appor- tionment that was made by the legislature of Virginia in 1908, taking Floyd County out of the Fifth Congressional District and adding it to the Sixth Congressional District, the votes received by the contestant in Floyd County would overcome the majority of the contestee as returned by the judges of election, and that the con- testant, Mr. Parsons, would be entitled to a seat in this Congress. Mr. Saunders. If you will pardon me in that connection, the concession is not exactly in that form. My concession is that should the committee consider that under the law they can count the votes in the county of Floyd, there would be enough votes there to seat Mr. Parsons. Of course, apart from the question of the right of the State to redistrict, I reserve the right to contend that the committee could not count, as a matter of law, the ballots cast for Parsons in Floyd County; but I admit that, should the committee determine to count them, as a matter of law, there would be enough of them to elect Parsons, if added to the ballots cast for him in the fifth dis- trict as constituted by the act of 1908. The Chairman. He has filed here in writing the concession he makes, and it might be put in the record at this place. Mr. Saunders. Yes; that may be done. (The concession referred to is as follows:) With respect to the county of Floyd, contestee submits the following: This county, by act of the Virginia legislature, was transferred from the Fifth Vir- ginia District to the Sixth Virginia District prior to the election in November, 1908. At that election a number of voters undertook to vote for John M. Parsons, the Repub- lican candidate for Congress in the Fifth Virginia District as constituted by the act aforesaid, erasing from the official ballot in the Sixth Virginia District the name of the Republican candidate in that district and substituting therefor the name of the said John M. Parsons as aforesaid. It is a part of the contention of contestant that these votes so cast for the said contestant in the said county of Floyd under the circum- stances aforesaid can now be counted in favor of the contestant by this committee. Contestee utterly denies that this can be done under any view of the law, but should the committee hold that the Floyd ballots can be counted, contestee is walling to admit, as a matter of fact, that enough ballots were cast for said contestant in this county to overcome contestee's f>fEcial majority in the Fifth District, as constituted by the act of 1908 as aforesaid. This statement or concession on the part of contestee will make it unnecessary for the committee to go through the formality of counting the Parsons ballots in the county of Floyd . February 23, 1910. E. W. Saunders. The Chairman. I made this statement for the purpose of aiding counsel in a presentation to the committee of their argument of the case. You have the understanding of this case on the part of the committee, or at least on the part of the chairman of the committee, as to what both sides claim. I do not understand it is claimed in this case by either side, at this time at least, that there was any fraud in connection with the election in the Fifth Congressional District of Virginia, or in the counting of the ballots. I want both sides to know the understanding of the committee on that proposition. The com- mittee counted the ballots, I may say, for the purpose of finding out how many ballots were cast in the Fifth Congressional District for two persons and were thrown out by the judges of election, which is 8 PAHSONS VS. SAUNDEES. the only way we could determine that question, and that was the sole object we had in counting the ballots. If that question had not been raised I do not know whether the committee would have wanted to go into the counting of the ballots at all or not. Second, I want to say on the question of the counting of the ballots that we did not count the ballots in Floyd County, for the reason that the contestee, Judge Saunders, filed with the committee the concession here in reference to that count, and thus avoided the responsibihty on the part of the committee of taking up the time of the committee in counting those ballots. Having said this much, I would like to have the counsel in the case, as far as possible, confine themselves to certain legal propositions, if they will: First, as to the right of the State of Virginia to make the apportionment that was made in 1908 in the congressional districts in the State. Just two claims are made by the contestant on that point — that, having exhausted the power or authority to redistrict the State, it had no other authority; and, second, that even though that position is not tenable, I understand the contestant takes the position that under the constitution of the State they had no right to make the kind of change that was made, because of the unequal population in these two congressional districts. On the questions that are raised in reference to the name of Mr. Mathew appearing on the ballot, I would like to have counsel point out to the committee, if they can, any authorities that sustain the contention of the contestant that, even though it is admitted that Mr. Mathew was an adjudged lunatic under the laws of the State of Virginia, and confined m the hospital for the insane in that State at the time of the election, his name on the ballot was a nullity, and that it had no legal force or effect, and that votes cast for Mr. Parsons and Mr. Mathew ought to be counted, or votes cast for Mr. Saunders and Mr. Mathew ought not to be counted. If there are any author- ities sustaining the other side of this proposition, we would like to have Judge Saunders point them out. On the question of these votes that it is alleged were illegal votes because the voters did not have the qualifications required under the laws of the State of Virginia, I want you to point to us fully all sections of the law of the State of Virginia under which you claim that these were not legally qualified voters on behalf of the contestant. Mr. Saunders. Mr. Chairman, just in that connection, with respect to Mathew, I would like for you to add that prior to the time he sent in his notice of candidacy to the secretary of the Commonwealth, he had spread broadcast through the district the fact that he was a candidate, announcing the same by means of postals, letters, and posted notices — in other words, he was an announced candidate, so far as that was concerned, some time prior to the time when he sent his notice of candidacy to the secretary of the Commonwealth. The Chairman. Is' there anythina;' in the record here to show that % Mr. Saunders. Yes, I can turn you to that in a moment. The Chairman. Aside from two cards. Mr. Saunders. Two cards, and the evidence of A. S. Gravely that notice of his candidacy was posted on the court-house door in Martinsville. In addition, you will find by looking to one of the exhibits the letter from Martin to the secretary of the Commomwealth PARSONS VS. SAUNDERS. 9 that the former called the attention of the secretary of the Common- wealth to the fact that this man was a lunatic, and added further in his letter that Mathew had been advertising himself as a candidate for some time prior to the date at which he sent in his notice. (See Record, pp. 326, 266, 415.) Mr. Bennet. Mr. Chairman, is there not one other legal question ? I understand there is a contention on the part of the contestee that, despite the fact of the statute which may or may not be construed in opposition thereto, if a man had actually paid his poll tax for three years preceding the election, whether he appeared on the poll-tax book or not, he had the right to vote. I understand that a legal question is raised. Mr. Saunders. That is not exactly a correct statement of the proposition. Mr. Bennet. I did not make it as a correct statement Mr. Saunders. I mean that the gentleman is under some mis- apprehension. Mr. Nelson. I understand counsel are going to inform us of the requirements ? The Chairman. Yes. Mr. Nelson. Generally, and that would be included. Mr. Bennet. Yes; I just wanted to call attention to that as an additional question. Mr. Saunders. I just want to state my proposition in this connec- tion. It is not that the statute is unconstitutional, or anything of that sort, but that the constitution of Virginia does not require a voter's name to be on this posted tax list as a prerequisite to the right to vote. There is no such constitutional or statutory require- ment. Mr. Bennet. That is what I intended. I did not try to state the exact language. The Chairman. I have stated the chairman's understanding of this case for the sole purpose of helping counsel to present such arguments to us as may cover the real contentions of this case. Counsel will be allowed to make any corrections that they wish as they argue the case to the committee. Mr. Saunders. I think the chairman's statement of it, so far as I am concerned, is accurate. Before we take up the argument I would like to make two corrections in the record, so far as it affects me. One is in my brief, on page 48, where I would ask that this correction be made: You will find about three-quarters of the way down the page this language: "Contestant alleges that Mathews was not eligible to Congress. This is conceded." The word "not" must be in there. ''This is not conceded." On page 91 of the analysis I filed with the committee, in reference to a man named Mills, you will find that the fourth line of the analysis reads as follows: " It is not shown how Mills voted." The word "not" should be erased. It should read, "It is shown." Mr. Bennet. That is erased here. Mr. Saunders. I did not know in how many of the analyses the correction had been made, and I wanted to have this change put in all of them. The Chairman. The contestant will now be heard in this matter, himself or by counsel. 10 PARSONS VS. SAUNDERS. Mr. Thurston. I wish to suggest to the committee, and I suppose there will be no objection to it, that we desire to have arguments made in the opening of the case by Mr. Carrico and by Governor Montague. We wish to be fair to the other side and have the whole case presented before Mr. Saunders replies, and then I will close. ARGUMENT OF J. H. CARRICO, ESQ., OF Ilf DEPENDENCE, VA., ATTORNEY FOR THE CONTESTANT. Mr. Carrico. Mr. Chairman, I suppose it is immaterial to the com- mittee as to which of the propositions laid down is argued first ? The Chairman. Certainly; take your own course. Mr. Carrico. Mr. Chairman and gentlemen, I shall not try to argue all the propositions that were laid down by the chairman. There are three propositions that I think should be considered by the coinmittee in determining whether the contestant or contestee is entitled to a seat under this record. The proposition which I intend to discuss first is the j)roposition as to whether the name of Eliot Mathew, a lunatic, which appears on the ballot, is a nullity, and whether his name being on the ballot along with another name, either that of the contestant or contestee, would disqualify that ballot, and the ballot should be counted for neither one. The next proposition that I shall discuss is to the question of the poll tax of the voters. In the State of Virginia ail persons are required to pay poll taxes that are assessable against them for three years next preceding the election in which they offer to vote, except soldiers who have served in the civil war between the States on either side. Our tax is levied as of the 1st day of February of each year, and a young man coming of age since the 1st day of February of that year would simply apply to the treasurer and get a certificate and vote on that, and his name would not have to appear on the poll-tax paid list. Mr. Bennett. Pardon me right there. What are the provisions as to people who move in from other States ? Mr. Carrico. A man moving in from another State must have been in the State for a period of two years. He then, as shown by the registration books, would only be assessable for poll tax for two years, and he would only appear on the poll-tax books as paid for two years. The registration books are required to be present at the poll- ing place at each election. His registration shows where he came from, the time of his registration, and the time for which he should have paid poll tax. Mr. Saunders. In that connection would it bother you for me to interrupt you ? Mr. Carrico. Not at all. Mr. Saunders. It is not necessary in all cases for them to have paid two years' taxes. They may be only liable for one year's taxes, and still possess the right to vote, if the tax of that year is paid at the proper time. Mr. Carrico. That is right; they may be only liable for one year's taxes, but the registration books will show the length of time a man is liable for the taxes. For that length of time the contestant claims he should appear on the poll-tax list, which I will discuss more at length when I come to it. PAKSONS VS. SAUNDERS. 11 The next question, which 1 shall deal with very briefly, is the question of the constitutionality of taking Floyd County out of the fifth and adding it to the sixth district. As to the proposition that Elliot Mathcw was a lunatic and that his name was a nullity on the ballot and that on all ballots on which his name aj^pears and the name of the contestee is marked out, the contention of the contestant is that those ballots should be counted for the contestant, and vice versa. Elliot Mathew, it is conceded, I think, in the contestee's brief, if I mistake not, is a lunatic. It certainly affirmatively appears in the record that he was a lunatic at the time he was circulating these notices of contest; he was a lunatic and an escaped lunatic. Pie had been adjudged a lunatic and sent to the Marion hospital for the insane some ten years previous to this. At various times he had been discharged as improved. The Chairman. Who was the superintendent of the asylum? Mr. Carrico. Mr. King. The Chairman. Mr. King testifies and presents there the record of the hospital. Mr. Carrico. I know he does. The Chairman. He shows that at that time he had escaped from the hospital. Mr. Carrico. Yes; I think it was in May he was taken back to the asylum and in June or July he escaped from the hospital and was returned to the hospital some time in October. Certain it was that at the time of the election he was in the insane asylum. Now, gentlemen, an insane man in Virginia is not entitled to vote, and certainly is not entitled to hold office. I do not think it will be seriously contended before this committee that a lunatic has any right to a seat in Congress, especially while he is an adjudged lunatic. The Virginia law is, "An insane person shall be construed to include every lunatic, noncompos, or deranged person." That is Pollard's Code, first volume, page 5. There is no question of this man being a lunatic. The Virginia law provides further that idiots, lunatics, and persons noncompos are excluded from registering and voting in the State of Virginia. It is not contended here that this man was a reg- istered voter or that he was a voter, and certainly he can not hold office. In Virginia the way a person gets on tlie ballot is this: He must notify the secretary of the Commonwealth thirty days prior to the election, in writing, that he wishes to become a candidate. That notice must be witnessed by two witnesses. Mr. Bennet. Twenty days, is it not, for a Congressman? Mr. Carrico. I may be mistaken as to that; it is either twenty or thirty. There is no question but what Elliot Mathew sent in a paper writing signed by himself and witnessed by two witnesses in time for his name to be placed on the official ballot. The only question there, is as to whether that writing had any force or effect; whether that writing was a legal notice. If it was not a legal notice, then, in its inception, no act of the secretary of the Commonwealth or of the electoral boards of the different counties in placing that name on there could make it a valid act, being invalid in its inception. As to his being a lunatic, the official records of the hospital are here : The official records of a hospital are competent evidence of the mental condition of a patient who has been confined in such institution. (Am. and Eng. Ency., vol. 16, p. 626; 99 Mass., 40; 46 Nebr., 493.) 12 PABSONS VS. SAUNDERS. It has been held by a number of States that after an inquisition and adjudication of insanity of a person, all of his contracts, all of his writings, are absolutely void, except for necessaries. The courts say: After inquisition and adjudication of insanity, all his contracts, except for necessaries made whUe such adjudication is in force, are void. (Trust & C. Co. v. Boone, 102 Ga., 202; Burnham v. Kidwell, 113 111., 425; Pearl v. McDowell, 311 Marsh (Ky.), 658; Carter v. Beckwith, 128 N. Y., 312; Haley v. National Loan, etc., Co., 44 W.Va., 450.) Any contract with an insane person is not only voidable, but absolutely void. (22 Cyc.,1196; Dougherty -y. Payne, 127 Ala., 577; Burket). Allen, 29 N. H., 106; Edwards V. Davenport, 20 Fed., 756; Westerfield v. Jackson, 3 N. Y. St., 353; 61 Am. Dec, 642; Dexter v. Hall, 15 Wall. (U. S.) 9, 21 L. ed., 73.) The court in the case of Dexter v. Hall says : If at the time Hall executed the power in question he was insane and his insanity was general, the instrument was a nullity. Further the court says: The instrument in such a case is no more to be regarded as the act of Hall than if he was dead at the time of its execution. Now, gentlemen, if this paper writing which Elliot Mathew sent to the secretary of the Commonwealth was no more to be regarded than if the writing had come from a dead man, I do not think it will be seriously contended before this committee but what that paper writing, when it started out, was invalid, and if invalid in its incep- tion, it could not become valid by any acts of the secretary of the Commonwealth or any electoral board in acting upon it. The good faith of one party and that party acting in good faith can not render an invalid act valid. (Hanley v. Nat'l Loan & In. Co., 44 W. Va., 452.) I think, gentlemen, that it is also settled in the Supreme Court, in German Savings and Loan Society v. Delashmut (67 Fed. Rep., 400), where it is said: The deed of a person non compos mentis is void. A person incapable of understand- ing is incapable of executing a deed or contract. It is now settled that deeds and contracts of insane persons are absolutely void. If all contracts and all paper writings are void as to lunatics and people non compos, then certainly his notice of his candidacy to the secretary of the Commonwealth was absolutely void and invalid. Further, gentlemen, the secretary of the Commonwealth did not act with his eyes closed. The record shows here that previous to the time for printing the ballots he had sent the names of the candidates to be placed on the official ballots. The secretary of the Commonwealth, after receiving these notices, and previous to the time for printing the ballots, certifies all names to the difi^erent electoral boards of the county, which are composed of three persons appointed by the cir- cuit court of the county. They, of course, are all Democrats. After the secretary of the Commonwealth had certified these names out to the electoral boards of the different counties the secretary of the electoral board of Franklin County notified him that Elliot Mathew was a lunatic. The secretary of the Commonwealth took no steps to prevent his name going on the ballot, but informed the secretary of the electoral board that there was no way by which he could prevent his name going on there, and his name did go on there. It is contended here in the contestee's brief that the contestant should have taken precaution and taken the matter to court and enjoined his name from going on the official ballot. PAESONS VS. SAUNDERS. 13 Mr. Bennet. Pardon me just a second. Did not the secretary of the Commonwealth seek to obtain an opinion in writing from the attorney-general ? Mr. Carrico. He sought an opinion from the attorney-general, but I think not in writing, sir; and the attorney-general was of the opinion that he was, that he could not prevent his name going on the ballot. Mr. Nelson. You claim that the secretary of the Commonwealth had the right of his own accord to pass upon that, as to whether a man is insane or not ? Mr. Carrico. No, sir; he did not have the right to pass on whether he was insane or not, but when he is already adjudged a lunatic he had a right to pass on whether he had received a legal notice of liis candidacy or not. Mr. Nelson. And when he is furnished the proof? Mr. Carrico. And when he is furnished with the proof, as he was. He was informed by the secretary there of the electoral board of Franklin County that this man was a lunatic, and was at the time in an insane asylum. My contention is that he had the right to pass on the fact that he had received no legal notice from a person who was capable of giving a legal notice, and therefore that his name ought not to be certified out to go on the official ballot. The contestee claims that it was the duty of the contestant to have gone into the courts to enjoin the secretary of the commonwealth or the electoral boards of the different counties from placing Elliot Matthew's name on the ballots. Gentlemen, it was an impossibility. The contestant did not know whose name was going to appear on that ballot. » The electoral boards throughout the counties received the names; they were taken in, and the printer is sworn not to divulge the names that go on the ballots, and no one but the Democratic electoral boards throughout the county and the secretary of the commonwealth knows who is going on that ballot or who is on the ballot until you go in on the day of the election to vote. Certainly the contestant had no chance whatever to enjoin the name from going on the ballot. Mr. Bennet. The electoral boards of the different counties were all of one party ? We found that there were several counties that were Republican. Mr. Saunders. You mean the judges of election at several points in those counties. Mr. Bennet. I mean the counties were Republican. In those counties were not the electoral boards Republican? Mr. Carrico. No, sir; the Republicans had not a representative on an electoral board in any county. They are appointed by the judges, and the judges are elected by the legislature, and of course the legislature is very largely Democratic in our State, and all the judges are Democratic, and they appoint Democratic electoral boards. Mr. Nelson. Explain what an electoral board is. Mr. Carrico. The electoral board has the duty of having the official ballots printed and appointing the judges of election and appointing the registrars for the county. Mr. Nelson. Are they appointed by the governor ? Mr. Carrico. They are appointed by the circuit courts. Mr. Slemp. By the judges. 14 PAESONS VS. SAUNDERS. Mr. Carrico. The judges of the circuit courts appoint the elec- toral boards; the}^ appoint the judges of election and registrars, and they have charge of printing and distributing the official ballots which are voted. Mr. Bennet. Let me see if I have this straight. The legislature elects the circuit judges, the circuit judges appoint the electoral boards, and the electoral boards appoint the judges of election ? Mr. Carrico. Yes, sir. Mr. Bennet. And there is some provision in your statute as to bipartisan or minority representation amongst the judges of elec- tion, but none as to membership on the electoral boards; is that right ? Mr. Saunders. That is correct. Mr. Carrico. We have a statute which says that representation shall be given to the party casting the next highest vote at the preceding election for judges of election, but there is no provision in our statute providing that the Republicans shall have representa- tion on the electoral boards, who have the appointing of the judges of election, and of course they appoint whoever they see fit. Mr. Howell. Do I understand you to say that the people are not informed until the da}'' of the election who are the candidates? Mr. Carrico. No, sir; they are not informed as to who appears on the ballot or as to the ballot. You do not know what kind of a bal- lot you have until you go in to vote. I think that will be conceded. Mr. Nelson. You do not know who the candidates are? Mr. Carrico. We do not know in what shape their names will appear on the ballot, whether at the bottom or at the top. They must come in consecutive order for the same office. Mr. Nelson. There is no requirement for publication ? Mr. Carrico. None in the world; in fact our law prohibits it. Mr. Hamill. When you go into the polling place, how many men have control of the ballot box; how many judges or officers are there there ? Mr. Carrico. There are three judges and two clerks. Mr. Hamill. And what is the complexion politically of the three judges and two clerks ? Mr. Carrico. In some places they are all three Democrats, the judges; most every place both the clerks are Democrats. In one or two places the Republicans had all three Republican judges, because there were no Democrats to fill the place. Mr. Saunders. I deny the latter proposition in part. Mr. Hamill. There is a requirement, though, that the electoral board appoint a bipartisan board of judges; is that correct or not? Mr. Carrico. That is the law. Mr. Hamill. They are supposed to be bipartisan ? Mr. Bennet. Not bipartisan, but a minority representation. Mr. Carrico. A minority representation. Mr. Bennet. One to two ? Mr. Carrico. One to two. Mr. Bennet. There is no provision about clerks ? Mr. Carrico. There is no provision about clerks, but they are appointed as Democrats. Another provision is that all persons registering prior to 1904 may have the assistance of either one of the judges in the preparation of his ballot. PARSONS VS. SAUNDERS. 15 Mr. Saunders. In that connection, Mr. Hamill, I wish to say that the clerks have nothing in the world to do with the hallots or the ballot boxes. They merel}^ keep the tally of the voters on the poll books. Mr. Carrico. They keep the poll books, keep the names of the voters. I do not know how it is in Judge Saunders's county, but in our county they have a good deal to do as to who shall vote and who shall not. Mr. Saunders. That is not so in my county, nor is there anything of that sort in the record. Mr. KoRBLY. If some one had made the statement that Mr. Saunders or Mr. Parsons was insane, would it have devolved upon the secretary of state to decide upon the question of his sanity ? JMr. Carrico. No, sir; I think not. I say this: Had either been an adjudged lunatic and the secretary of the Commonwealth had been informed of it, then he should have left the name off, because he was not a cojnpetent voter; he would not be competent to hold office. This point was put up to the secretary of the Commonwealth, and you will find it m the record : It was asketl if a woman would send m her name if he would place her name on the official ballot, and he said he would not. Mr. Nelson. Is there any provision of law, any precedent, where a secretary of state is permitted to exercise discretion as to whom he will put on the ballot ? l^Ir. Carrico. No, sir; but he must receive legal notice of the candidacy. Lir. Nelson. Having received that, is there anything in law that gives him the power to say that he will or will not? ]\lr. Carrico. No, sir; i think not. If he had received a legal notice, I think he should have placed the name on the ballot; but my contention is that, being a lunatic, Mathew could not send any legal notice; that the notice was invalid in its inception, and he did have the right to leave off a man who has no riglit on the ballot. For instance, if a man from North Carolina should send in his name, he certainly could not become a candidate in Virginia; the secretary would certainly have the right to leave his name ofT the official ballot. He would have received no legal notice from a man who could become a legal voter. Mr. Howell. Is it shown that the secretary had suilicient evidence to prove the lunacy of Mathew ? Mr. C^ARRico. Yes, sir; the records of the State show it there. He was informed by the secretary of the electoral board of Franklin County that this man was a lunatic; that he was in the hospital for the insane at Marion, Va. The records in Richmond there, which the secretary of the Commonwealth keeps, show that this man was a patient in the hospital for the insane at Marion. Mr. Bennet. What is the name of the man who wrote him the letter ? -^ Mr. Saunders. W. D. Martin. Mr. Carrico. That is right, W. D. Martin. Mr. Tou Velle. Suppose the Constitution of the United States had placed certain restrictions upon qualifications, or had defined the qualifications necessary to be a candidate to hold the office of Con- 16 PAESONS VS. SAUNDERS. fressman; it having once laid down what those qualifications should e, can they be extended or limited by state authority ? Mr. Carrico. I think not, sir. The Congress of the United States is the sole judge of its Members; the sole judge of their qualifications. Mr. Tou Velle. But say the Constitution of the United States had limited or passed on the matter; then what would you say ? Mr. Carrico. Certainly the Congress of the United States is con- trolled by the Constitution, and Congress could not pass a law that was repugnant to the Constitution of the United States. Mr. Tou Velle. I do not think you caught my question. If the Constitution of the United States had put a limit or had designated who might or who might not hold this office, could the State then pass a law that would put a further limitation ? Mr. Carrico. I think not, sir; no, sir. Mr. KoRBLY. You do not contend, Mr. Carrico, that the secretary of state was acting in other than a ministerial capacity ? Mr. Carrico. In a certain way he was acting in a ministerial capacity, yes; but the law defines how these people may get on the ballot, my contention is, and they must give a legal notice. Mr. KoRBLY. Is the secretary of state charged with the duty of ascertaining by judicial process whether or not this is a legal notice, whether or not this man is insane, whether or not the Elliot Mathew, who has filed the petition is the same Elliot Mathew who is and has been incarcerated because of his insanity ? Mr. Carrico. No, sir; but then when he is informed of that through the proper officials he should take cognizance of it. Mr. Bennet. Is it not a fact, as I recall the Constitution of the United States, that the Constitution has done exactly that thing, and that under the description of who can come to Congress— a woman could from Utah, Wyoming, Idaho, or Colorado, because she is quali- fied to vote for a member of the legislature in those states; whereas a woman could not come to Congress from New York, and I presume from Virginia, because in those States she is not qualified ? Mr. Carrico. Yes; that is so. Mr. Bennet. In other words, the Constitution of the United States permits each State to prescribe in that indirect way the qualifications of the persons who shall represent that State in the Congress of the United States. Mr. Carrico. That is true. . . Mr. Bennet. And therefore, if your state constitution prohibits a lunatic from voting, it possibly prevents a lunatic from running for Congress ; that is your point ? i ' re • i Mr. Carrico. Yes; that is, that he could not get on the official ballot because all of his acts are invalid, and that therefore he could not give a legal notice in order to get on the ballot, and can not be voted for. The Chairman. What are the qualifications a man has to possess under the laws of your State to run for office or to be elected to office ? Mr. Carrico. In our State he must be 21 years of age The Chairman. Must he be a qualified elector? Mr. Carrico. Yes, sir ; our constitution says only voters can become a candidate for office. But the point I make is that his name should not be on this official ballot, because he did not get on there accord- ing to law. The law requires a legal notice to get on there. This PAKSONS VS. SAUNDEES. 17 man being incapable of" performing a legal act, he could not give a legal notice to the secretary of the Commonwealth in order to get on the ballot, and therefore, being on there illegally, his name is a nul- lity, and when either Judge Saunders or Mr. Parsons was marked off, then there was only one name remaining in law on there; the other name was a nullity and counted for nothing, and therefore it was not a void ballot, but should be counted for either one or the other just as it was marked. I think the law is very clear on that proposition. The (^HAiRMAN. Wliat would you say about the ballots that have Mr. Mathew's name on alone, the only name voted for? Mr. Carrico. I think they are void ; I do not think any one was voted for. His name had no right on the ballot because his name was not placed on there in a legal manner, and therefore when he was voted for alone that ballot was void. The (Chairman. The ballots are printed in this way, Saunders, Parsons, Mathew ? Mr. Carrico. Yes. The Chairman. Now, we find the name "Parsons" scratched off. How can we determine whether the voter wanted to vote for Saunders or Mathew ? Mr. Carrico. Simply from the fact as, I take it, no one wanted to vote for a lunatic, and those who did vote for him voted inadvert- ently. The Chairman. Suppose they did not know he was a lunatic, as a great many voters of the State did not know ? Mr. Carrico. If they did not know he was a lunatic, they did not know him at all, knew nothing about him, and certainly did not want to vote for him. My judgment is that when both Saunders and Par- sons were marked out the man intended to vote for no one, and it certainly leaves the ballot void, because Elliott Mathew has no right on the ticket. Mr. Nelson. Right there, Mathew did receive 15 votes, I believe. Mr. Carrico. Yes. Mr. Nelson. How are we to know ? Have you any rule to guide us as to whether, when a man struck one of these out, he did not in- tend in these other cases, possibly, to vote for Mathew, as well as in the 15 where he was voted for? Mr. Carrico. There is no rule. I have never heard of a case just like this being presented in any court or before a committee of Congress. But in the record here we show you that many of these voters have testified that they did mark their ballots ; some of them have testified that they marked out Parsons and left Elliott Mathew and Judge Saunders on, and they intended to vote for Judge Saunders, but that they did not know a lunatic was on there, failed to notice that point, and failed to mark his name out, and vice versa. At Comers Rock, in Grayson County, the report of the subcommittee shows there were 15 ballots returned in which Judge Saunders's name was marked out and Mr. Parsons's and ElUott Mathew's left on. We put the judge of election on from that precinct, and we put several of the voters on. The judge of election said he did not know there were but two names on the ballot, and did not discover it until away up in the morning, and that he had been marking ballots for men who wanted to vote for Mr. Parsons by simply marking out Judge Saun- ders's name. Several of them testified they went in to vote for Mr. 38069—10 2 18 PARSONS VS. SAUNDERS. Parsons, and they did not know there were but two names on the ballot, never had heard of but two names, and they simply marked out Judge Saunders and deposited the ballot. You have that record before you. Mr. Howell. Is there any designation on the ballot to indicate the political party to which a candidate belongs ? Mr. Carrico. No, sir; there is no emblem on the ballots whatever to show whose they are, in any way. Mr. Bennet. And before the voter goes into the booth he has no absolute knowledge of the order in which the names will appear on the ballot ? Mr. Carrico. He has not; nor the number that will appear on the ballot. Mr. Hamill. Are the ballots permitted to be distributed around before the voting occurs ? Mr. Carrico. No, sir. The ballots are sealed at the office of the printer. The printer is sworn not to divulge the names or the order in which they appear on the ballot. The ballots are distributed by the electoral board in sealed packages, not to be opened until opened in the presence of the three judges on the morning of election, and no one is permitted to be in the room while the ballots are being opened and counted, and no one is permitted to see the ballots until he goes in to vote. Mr. Bennet. After the man goes in to vote, if I am correct, if he comes out and tells anyone how the names are printed, that is a violation of your statute, is it not ? Mr. Carrico. No, sir; that is not a violation of the statute; it is a misdemeanor to bring the ballot out of the polling place, so that no one can exhibit a ballot. No one sees a ballot until he goes in to vote, and only tha ballot that he votes; he may see the pile lying there, but he is permitted to examine only the ballot he votes. Mr. Hamill. But if you remember the order in which the names appear you could tell them without violation of the law ? Mr. Carrico. Yes. Mr. Howell. As a practical question, when the vote is cast in any precinct or district, is it generally a straight party vote, to a large extent ? Mr. Carrico. Yes, sir; to a large extent, it is generally a straight party vote. Mr. Bennet. That is not the universal rule; that was not our observation. Mr. Carrico. You will find there are several ballots in which the voter voted for Mr. Bryan and Mr. Parsons, and for Mr. Taf t and Judge Saunders, but I do not think you will find what I call a great many of them. Mr. Howell. What I had in mind was, where these 15 votes were cast for Mr. Parsons and Mr. Mathew, did Mr. Parsons Mr. Bennet. Fifteen were cast for Mathew alone. Mr. Howell. In what district, Mr. Carrico ? Mr. Carrico. At Comers Rock, in Grayson County. Mr. Howell. At Comers Rock, there were some 15 ballots with two names on them for Congress. What do the returns show in that district as to the number of votes Mr. Parsons received as compared with his party associates on the ticket ? PARSONS VS. SAUNDERS. 19 Mr. Carrico. Prt^sideiit Talt ran ahead of Mr. Parsons there some votes — I do not know how many, but some votes — so that it shows that those voters were voting for Mr. Taft, and were marking Judge Saunders out, and I think that clearly shows that the intention of the voter was to vote for Mr. Parsons, and, according to my contention, Elliot Mathew's name being invalid on the tick'-'t, they did vote for Mr. Parsons. As to people being acquainted with the ballot, and as to you seeing the names and coming out and telling your friends about it, it is a misdemeanor there to bring any copy of the ballot out and exhibit it to your friends, or show the order m which the names appear. Mr. Hamill. But if you retain the order in memory and disclose it orally after you get out, that is no violation of the law ? Mr. C'arrico. That is no violation of the law, as I understand it. Mr. Tou Velle. Would not that law or provision in question tend to induce men to be more careful how they marked their ballots ? Mr. Carrico. It probably might do that, sir, but a great many men up there who have registered since 1904 have to mark their own ballots. Of course, they have to be able to read and write before they can register, but they are not very good scholars, and a great many of them do not understand the ballots after they go in tliere. Besides that, a great many wlu) have registered before try to depend on their memories. They have the right to call the judge, but they do not do it simply because of the fact that they do not want some of the judges to know how they do vote, and they go in and try to mark their own ballots, and it is shown there at Comers Rock that the judge whom the Deraiocratic electoral board gave us was not capable of marking the ballots himself. As to the illegal votes cast throughout the district, as I said in my opening statement, every man must have paid all the poll tax assessed or assessable against him for the three years next preceding the election in which he offers to vote at least six months previous to that. There is this exemption — that is, old soldiers who have served in the civil war between the States, either on the Union or Confederate sides. They do not have to pay a poll tax as a pre- requisite to voting. All others do have to pay a poll tax. As to whether they should be on there three years or not, the registration book shows when they registered and their age. It makes no dif- ference if a man registers when he is a citizen of Grayson County; if he registers at the age of 28, he can not pay one poll tax and be entitled to vote. A young man just coming 21 years of age can pay his poll tax and take a receipt which will pay off his poll tax the next year and exhibit that without being on the poll-tax list. Mr. Bennet. What is that year, the calendar year commencing in January, or some fiscal year down there ? Mr. Carrico. Our poll taxes are assessed as of the 1st day of February each year. Mr. Bennet. So that a man to vote this fall must have paid the poll tax that came due February 1, 1908, 1909, and 1910; is that right? Mr. Carrico. If he votes in 1911; yes. Mr. Bennet. If he votes this coming fall ? Mr. Carrico. Yes; if he votes this fall. Mr. Saunders. No, Mr. Bennet, that is a slight misapprehension. If he votes this fall, it would be the tax of 1907, 1908, and 1909. 20 PAESONS VS. SAUNDERS. Mr. Carrico. Yes; if he votes this fall. Mr. Bennet. He does not have to pay the poll tax that came due on February 1, 1910? Mr. Carrico. No. Mr. Slemp. That has to be paid this year, but it is counted a year back. Mr. Bennet. As I understand, it has to be paid six months before the election? Mr. Slemp. It has to be paid within six months; this year, 1910. Mr. Carrico. To have voted in this congressional election the voter who was assessed or assessable with taxes should have paid for the years 1905, 1906, and 1907 to have voted m the fall of 1908, and he must have paid them six months previous to that time. Mr. Saunders. Provided, of course, in that connection, he is liable for three years' taxes. Mr. Carrico. I say, if it is assessable against him; if it is assessed or assessable against him. Say you had been living there six years and were assessable with taxes, and the assessor missed assessing you, then the law provides that you can go to the clerk of the county court and get a certificate showing that you registered in a certain precinct, and take that to the treasurer and pay your poll tax, and thereby get on the list. Mr. Bennet. It must have been paid prior to the 3d of May, 1908? Mr. Carrico. Yes, sir; the 3d of May, 1908, was the last day the taxes could have been paid to have voted in this congressional election. Right in that connection my contention is that a man, in order to vote, must have been an old soldier, or must have been a young man com- ing of age since the 1st day of February, 1907, or he must have been on the tax-paid list in order for him to have been a qualified voter. I understand that Judge Saunders's contention is that where a man probably had paid his taxes six months prior, and brings up his tickets or certificates that he did pay that poll tax, he is entitled to vote. The constitution provides who may vote, and on the tax-paid question it says that all persons assessed or assessable with taxes must have paid them at least six months previous to the election for three years prior thereto. That fixes the qualification of a man to vote. The constitution, as well as the laws, section 82 of the Code, provides that this tax-paid list shall contain a list of all the persons who have paid this tax. It provides further that if by inadvertence a man's name is left off, this list is posted for thirty days at each precinct in the county, and that he may apply to the circuit court by giving the treasurer five days' notice, which petition of the voter shall be heard either in term time or in vacation, immediately to de- termine whether his name shall go on the tax-paid list. If he shows he has paid his taxes properly, his name is ordered by the court to go on this list. That is the mode of proving it. The constitution and the statutes passed under it say this, that the tax-paid list is conclusive evidence of the facts stated therein for the purpose of voting. Those tax-paid lists are lists containing the names of all per- sons who have paid their poll taxes prior to May 3, 1908, in order to entitle them to vote, and so forth. They are placed on that fist for the number of years for which they have paid. The registration Hst shows whether they should be on there for more years than that. PARSONS VS. SAUNDERS. 21 Mr. KoRBLY. In the event a voter is challenged, this list that his name is on is conclusive evidence oi" his right to vote ? Mr. Carrico. Yes, sir; if he is not on there, I take it it is con- clusive evidence he has no right to vote, from the simple fact that prior to 1908 — the law is not so now, but for purposes of this con- test, prior to 1908 a poll tax receipt was not required to be dated — that is the date of payment. Of course, it show^ed the year for which the poll tax was assessable, but the poll-tax receipt was not required to be dated, and if the legislature had not intended that this poll-tax list was conclusive it certainly left a gap for a good deal of fraud there. I could have paid my poll taxes the day before election and have gone in and sworn I paid them. In many instances I could have just said, "Here is my poll tax; here are the receipts." Mr. KoRBLY. In the event some elector's name is left off the list that ought to be there, he is precluded from voting '^ Mr. Carrico. No, sir; that poll-tax list, I tell you, is required to be posted at every precinct in the county, or in the city, in the wards of the city, for thirty days. He has the right to examine that list, and if his name does not appear on there, and he has paid his poll tax, he gives the treasurer five days' notice and petitions the circuit court, which petition the circuit court must hear either in term time or vacation immediately, and if he shows he has properly paid his Eoll tax, the court orders him to be placed on the poll-tax list. If 6 neglects that, he is not entitled to vote. Mr. KoRBLY. You claim that excludes him ? Mr. Carrico. We claim that excludes him. Mr. KoRBLY. Even though he has cleared away his taxes and ought to be on the list ^ Mr. Carrico. Yes, sir. Mr. Bennet. As I understand you, at that time the poll-tax receipts each voter received did not bear the date when the poll tax was paid, but simply the year for which it was assessable ? Mr. Carrico. Yes, sir; that is all. The law did not require them to date the poll-tax receipt. A man paying his tax the day before election could get his receipt and come in and say, "Here is my receipts," and he would be allowed to vote. Mr. Bennet. In other words, a man paying on the 2d of Feb- ruary got exactly the same form of receipt as the man paying on the 2d of May '? * Mr. Carrico. Yes. I want to state a little further. The treasurer returns these taxes delinquent along about August, some time in August, but up to that time he has the tax receipts, and a man can pay them on up from the 3d of May to the time he returns them delinquent, and he gets the same kind of receipt I would get if I paid them immediately after the receipts are made out. I should say that was the condition at that time. The legislature in 1908 reciuired that all poll-tax receipts should be dated the date of payment hereafter. But for the pyrposes of this contest, and prior to 1908, the poll-tax receipts were not required to be dated, and were not dated tne date of payment of them. They just showed the year for which they were assessable. The constitution then goes on further and says that the legislature may, from time to time, require such further proof of the payment of the poll taxes as they shall see fit. The legislature have not seen fit to require any further proof than the poll-tax list. Then 22 PARSONS vs. SAUNDERS. it goes on to state how a man from a different county coming into another county in the State may vote. If he has come into tlie county in such a time that he should have paid his taxes in the county in which he offers to vote, then his name must appear on the poll-tax list in that county for that year. In addition to that he must have the receipt from the treasurer of the county from which he moved, showing that his poll taxes had been paid there six months prior to the election. Mr. Nelson. Does he have to bring the poll-tax list with him from that county ? Mr. Carrico. No, sir; I say he must have a receipt from the treas- urer of the county from which he had moved showing that he had paid his taxes for six months prior to the election. Mind you, it is not like a tax ticket; we get what we call a tax ticket. But he must show affirmatively that this man has paid his taxes in that county six months previous to the election in which he offers to vote in the county he has moved to; that is, a certificate from the treasurer that he has paid in that county six months prior to the election. But where a man is, say, in Grayson County for five years, and he has paid for three years there, he must be on the tax-paid list there for three years, and if he is not, according to Judge Saunders's contention, and he brings in his tax receipts, no matter when they are paid, if they were paid only three months before the election, if he brings his tax receipts or comes in and offers to swear that he paid them six months previous to that time he is a legal voter. Mr. Saunders. That is not correctly stated. Mr. Carrico. That is what I understood to be your statement. Mr. Saunders. I do not mean you are misrepresenting me inten- tionally; that is not what I mean at all. I affirm that if a voter is not on the tax list for three years but before offering to vote estab- lishes the fact that he has paid his taxes as provided by law he will then be entitled to be admitted to cast his ballot. The payment of the taxes required within the time prescribed and not the appearance of his name on the list is the prerequisite. Mr. Carrico. Suppose that he comes in and offers to state that he has paid them in time; your contention is that he is entitled to vote ? Mr. Saunders. If, as a matter of fact, he satisfies the judges he has paid his taxes in time he is entitled to vote. Mr. Nelson. May I get that thing plain? You contend a man's name has to be on the poll-tax list, Mr. Carrico, and Judge Saunder s says if he brings in his receipt at any time before election he is entitled to vote ; is that it ? Mr. Carrico. Or offers to swear. Mr. Saunders. If he establishes the fact of payment, Mr. Nelson, whether by the tax list or otherwise. Mr. Carrico. I claim the constitution fixes the right of a man to vote. I claim further, it goes on and, together with the statutes passed under it, fixes the proof, or how the man may prove his right to vote, and in no other way can he prove he has paid his poll tax. Mr. Hamill. Suppose, for instance, a man pays his poll tax and then goes off traveling and returns two days before election, and has not time to give the five days' notice and make his petition to the circuit court; would that debar him from voting, in your opinion? Mr. Carrico. If he was not on the tax list. Mr. Hamill. If he was not on the poll-tax list? PAESONS VS. SAUNDERS. 23 Mr. Carrico. It certainly would, I think. Mr. Hamill. Is there no provision, such as they have in other States, whereby lie may o;o to the court, or to some tribunal, even on election day, show he is qualified, and get a certificate entitling him to vote ? Mr. Carrico. No, sir; the poll-tax list at the end of thirty days after it is posted is closed. Many men are disfranchised down there because they do not do that. Mr. Bennet. The same is true in our State of New York. If a man is not in the city on one of the four days of registration — we only have four days — be he ever so qualified, he could not vote on election day. Mr. Carrico. Yes. It is the same way as to the poll tax down there. My contention is that the law requires that he be on there for the years that he is assessed or assessable with taxes, and that if he neglects that part of it, the result is that he can not oi!"er any other proof than the tax-paid list that he has paid them, because the tax- paid list says, "Here is a list of all parties who have paid their poll taxes six months prior to the 3d day of May, 1908, in order to entitle them to vote." If that is a list of all of them, although he may have paid his taxes, and although he may have been entitled to get on there, but has neglected to go to the court and furnish the judges of election with the proof that the constitution and the statutes say he shall furnish them vvith, they are bound to exclude him from voting. He excludes himself. Mr. Bennet. The contention as between you and Judge Saunders is, you contend that the constitution and the statutes prescribe an exclusive method of proof, and Judge Saunders contends that in addition to the tax list provided by the statute and the constitution other proof of payment can be adduced ? Mr. Saunders. That is an absolutely correct statement of the difference betw^een us. Mr. Carrico. Yes, sir; that is what Judge Saunders contends, and I contend that the constitution and the statutes preclude any other mode of proof; that the constitution says that this poll-tax list shall be conclusive evidence of the facts therein stated for the purpose of voting, and when it states that it is a list of all persons wdio have paid taxes, and this person being off the poll-tax list does not apply to the court within the thirty days which the law gives him the right to apply in, and does not place himself on the list, he is excluded from voting. Mr. Nelson. That has never been decided by your courts ? Mr. Carrico. No, sir; it has never been. Mr. Saunders. It has been decided in the nisi-prius courts. Mr. Howell. What if an alien should pay his poll tax; would he be entitled to vote ? Mr. Carrico. No, sir; our constitution excludes aliens from voting. Mr. Howell. Who would pass upon the matter ? Mr. Carrico. An alien wdio has not been naturalized can not vote. Mr. Howell. I know, that is the general law; but what is the procedure in your state to determine the right of a man to vote, other than the paying of a poll tax ? Is there any registration list ? Mr. C'ARRICO. Y^es, sir; there is a registration list. He must be registered, must be over 21 years of age, and must have paid the poll tax, unless, as I say, he is an old soldier. 24 PARSONS VS. SAUNDERS. Mr. Howell. Then, if he is on the registration hst and not on the poll-tax list, what would be his status ? Mr. Carrico. If he is not on the poll-tax list and he does not fur- iiish the evidence required by the constitution and the law, as I see it, even if he had paid his poll tax, he would be excluded from voting, although he would be on the registration list. It is not every man who is registered who is entitled to vote. Mr. Bennett. Does a man have to register every year ? IVir. Carrico. No, sir. Our registration lists are preserved up to the time a man dies or moves away. Mr. Bennett. Can a man register any day in the year he pleases ? Mr. Carrico. A man may register any day in the year he pleases up to within thirty days of the election. Thirty days before each election the registration books are closed, and no one can get on the registration books between that and the election. The Chairman. Having once registered, he always remains a reg- istered voter as long as he is in the county ? Mr. Carrico. Yes, sir; he remains a voter as long as he pays his poll tax. Mr. Saunders. There is one exception to that, which will appear in this case. If a man goes out of the State and becomes a citizen elsewhere and then returns, his absence will strike his name from the registration books; he has to reregister in order to vote on his return. But mere absence from the State, without acquiring citizenship, does not affect his voting rights. Mr. Carrico. If he moves out permanently. A man who moves out temporarily without intending to make his home elsewhere does not have to. Mr. Saunders. That is what I mean. The Chairman. After having once registered, as long as he remains in the county he is a qualified voter as long as he complies with the requirements of your constitution and state law ? Mr. Carrico. Yes, sir; that is right. The evidence is very volu- minous, and it is very hard to pick out who has paid his poll tax. There may be some mistakes in the brief of evidence; I notice there are some mistakes in ours, and I notice Judge Saunders has made some in his. In some instances we do not agree with the contention as to whether a voter is a legal voter or not on the evidence that is in the record. I think it would be hardly fair to the committee for me to take up each name and discuss it separately, because if I did I would have to discuss it all day. Mr. Howell. When a voter presents himself to vote in your State, what do the judges refer to to determine his qualifications, the regis- tration list or the poll-tax list ? Mr. Carrico. They have the tax list and the registration books right before them; it is determined by both. Mr. Korbly. How is the fact that he was a soldier shown ? Mr. Carrico. On the registration book there is a column there that says, "Is he exempt from the payment of poll taxes as a prerequisite to voting r' It is either ''Yes," or "No," under that. If it is "Yes," it is supposed he is an old soldier, because they are the only ones who are exempt, and he is allowed to vote. (Thereupon, at 12.05 o'clock p. m. the committee took a recess until 2 o'clock p. m.) PARSONS VS. SAUJSDEllS. 25 AFTER RECESS. The committee met at 2 o'clock, p. m., pursuant to the taking of recess. ARGUMENT OF J. H. CARRICO, ESQ., IN BEHALF OF THE CON- TESTANT'S CONTENTION. Mr. Carrico. I want to refer back a moment to tlie EUiott Mathew question. I did not have the constitution before me at the time I was going over it. I want to read you a short portion of the constitution as to who is ehgible to hokl office in Virginia. It says that the following persons shall be excluded from registering and voting: Idiots, insane persons, and paupers; persons who, prior to the adoption of this constitution, were disqualified from voting, by conviction of crime, either within or without this State, and whose disabilities shall not have been removed; persons con- victed after the adoption of this constitution, either within or without the State, of treason, or any felony, bribery, petit larceny, obtaining money or property under false pretenses, embezzlement, forgery, or perjury; persons who, while citizens of this State, after the adoption of this constitution, have fought a duel with a deadly weapon, etc. That will not come up in this case. And then section 32 says: Every person qualified to vote shall be eligible to any office in the State, or of any county, city, town, or other subdivision of the State, wherein he resides, except as otherwise provided in this constitution, and except that this provision as to residence shall not apply to any office elective by the people where the law provides otherwise. Men and women 18 years of age shall be eligible to the office of notary public, and qualified to execute the bonds required of them in that capacity. That shows that a lunatic is not eligible to office at all, because he is excluded from registering an<^l voting, and only people eligible to vote can hold office except the office of notary public, in which case persons at least 18 years of age, including ladies, may hold the office of notary public. "Those are the only exceptions. Now, gentlemen, as to the question of proof of whether a man has paid his poll tax as required by law, so as to qualify him to vote, as to the proof, I want to read you the constitution on that. Section 38 of the constitution reads: After the 1st day of January, 1904, the treasurer of each county and city shall, at least five months before each regular election, file with the clerk of the circuit court- of his county, or of the corporation court of his city, a list of all persons in his county or city who have paid, not later than six months prior to such election, the state poll taxes required by this constitution during the three years next preceding that in which such election is held; which list shall be arranged alphabetically, by magis- terial districts or wards, shall state the white and colored persons, separately, and shall be verified by the oath of the treasurer. The clerk, within ten days from the receipt of the list, shall make and certify a sufficient number of copies thereof, and shall deliver one copy for each voting place in his county or city to the sheriff of the county or sergeant of the city, whose duty it shall be to post one copy, without delay, at each of the voting places, and within ten days from the receipt thereof to make return on oath to the clerk as to the places where and dates at which said copies were respectively posted, which return the clerk shall record in a book kept in his office for the purpose; and he shall keep in his office for public inspection, for at least sixty days after receiving the list, not less than ten certified copies thereof, and also cause the list to be published in such other manner as may he prescribed by law; the original list returned by the treasurer shall be filed and preserved by the clerk among the public records of his office for at least five years after receiving the same. Within thirty days after the list has been so posted, any person who shall have paid his capi- tation tax, but whose name is omitted from the certified list, may, after five days 26 PABSONS VS. SAXJNDEKS. written notice to the treasurer, apply to the circuit court of his county, or corporation court of his city, or to the judge thereof in vacation, to have the same corrected and his name entered thereon, which application the court or judge shall promptly hear and decide. Then it goes on to state: The clerk shall deliver, or cause to be delivered, with the poll books, at a reason- able time before every election, to one of the judges of election of each precinct of his county or city, a like certified copy of the list, which shall be conclusive evidence of the facts therein stated for the purpose of voting. The clerk shall also, within sixty days after the filing of the list by the treasurer, forward a certified copy thereof, with such corrections as may have been made by order of the court or judge, to the auditor of public accounts, who shall charge the amount of the poll taxes stated therein to such treasurer unless previously accounted for. This relates entirely to the proof that is to be offered, showing that the man has paid his poll tax, because the constitution in the winding- up clause says: Further evidence of the prepayment of the capitation taxes required by this consti- tution, as a prerequisite to the right to register and vote, may be prescribed by law. Now, then, if that did not have reference to the evidence that is to be adduced before the judges of election, showing the payment of the tax, it certainly would not say that further evidence of the prepayment of the capitation taxes required may be prescribed by law. The legislature has not seen fit to require any further evidence, but it does require that each man shall be on that tax-paid list if he does not come under the exemption by reason of being an old soldier or otherwise, or if he has not just become 21 years of age, in which latter case he votes on a certificate from the treasurer that he has paid his poll tax. Now, gentlemen, assuming that I am correct in that position, you will find that a great many men voted at the different precincts throughout the district, whose names are too numerous for me to mention to the committee, and they will have to go over the names themselves. I shall mention a few of them, however, who voted without being on the tax-paid list; some of them swore that they paid their poll tax, others produced tax receipts that they had paid their poll tax, while others came in and simply said, ''I have paid my poll tax," and on that showing the judges allowed them to vote. Mr. Nelson. Is this construction that you are laying down here something new, or what has been the practice by Republicans or Democrats as to voting by showing that they had at some time or other paid the poll tax before election ? Mr. Caerico. Well, sir, I can not answer that except as to my own county. Mr. Nelson. Well, as to your own county? Mr. Carrico. As to my own county, a man whose name does not appear on the poll-tax list and who the registration books shows has been registered, or is old enough to be on there, is excluded from voting. Mr. Nelson. That is the fixed rule in your county ? Mr. Carrico. Yes; that is the fixed rule in my county. Neither Republicans nor Democrats are allowed to vote unless their names appear on the poll-tax list. I say that is a fixed rule; it does not hold good at every precinct in the county. Mr. Nelson. You are speaking of your own individual precinct ? PARSONS VS. SAUNDERS. 27 Mr. Carrico. Well, it is the contention of both parties in my county that that is the rule, but the judges of some precincts do not adhere to that rule. Mr. Nelson. That is what I wanted to find out. Mr. Carrico. The fact that a man is on the registration books, as I said previously, is not conclusive evidence that he has a right to vote. I think we are agreed on that. [Reading:] Section. 21. Any person registered under either of the last two sections shall have the right to vote for members of the general assembly and all officers elective by the people, subject to the following conditions: That he, unless exempted by section 22, shall, as a prerequisite to the right to vote after the 1st of January, 1904, personally pay, at least six months prior to the election, all state poll taxes assessed or assessable against him under this constitution during the three years next preceding that in which he offers to vote: Provided, That if he registers after the 1st day of January, 1904, he shall, unless physically unable, prepare and deposit his ballot without aid, on such printed form as the law may prescribe; but any voter registered prior to that date may be aided in the preparation of his ballot by such officer of election as he himself may designate. Mr. Bennet. Is the poll tax uniform throughout the State, and does every man know the amount, or does it vary 1 Mr. Carrico. It is fixed at $1.50. Mr. Bennet. For each indivitlual, each year? Mr. Carrico. For each individual, each year. Now, according to Judge Saunders's contention, the judges of election would be the judges of what evidence was sufficient to qualify a man to vote in the event that his name does not appear on the poll-tax list. But the consti- tution is different. The constitution says that the legislature and not the judges of election may prescribe by law^ a different method of proving that the man is entitled to vote. The legislature has not done it. I take it if the constitution gives only to the legislature that right, it certainly does not give it to the judges of election to say what manner of proof the}^ wdll receive as to whether a man is qualified to vote or not. Therefore I take it that the constitution, the legislature not having acted on it, having passed no laws giving any other mode of proof, that therefore the constitution is conclusive and the laws passed under it quote the language of the constitution in saying what proof shall be made as to the payment of the poll tax in order that a man may be allowed to vote. Mr. Nelson. How^ many general elections have you had imder that constitution ? Mr. Carrico. The constitution w^as adopted in 1902, and we have an election about every year. Mr. Bennet. Assuming that your contention is correct, and that the judges of election had no right to allow any one to vote unless he was on the tax-paid list and that enough men did so vote to change the result here, how could this committee ascertain how a man wdio voted in violation of the statute voted when he went in the booth ? Mr. Carrico. That was the question I was coming to now. That is a very hard matter to determine, because in our State it is a secret ballot and you can not compel a man to come forward and testify as to how he voted. Therefore the only way we could get at it in many instances was to prove their politics, to prove with wdiat party they affiliated, what party was advocating and maintaining their right to vote. That is 'what we did, so far as we could. In a great many instances you will find that it has been proved how a man voted; 28 PAKSONS vs. SAUNDEES. either he testified himself or the next best evidence was obtained, that he told some one, or he said at the election how he was going to vote or how he did vote. As to that McCreary on Elections (sec. 490, p. 361) says: "V^Tiere a voter refuses to disclose or fails to remember for whom he voted it is com- petent to resort to circumstantial evidence to raise a presumption in regard to that fact. And within this rule it was held in People v. Pease (27 N. Y., 45) "in the absence of direct proof, evidence showing to what political party a voter belonged, whose election he advocated, whose friends maintained his rights to vote," and kin- dred testimony has been held admissible. Now, then, you will find further that in Pittsylvania County the contestant in his direct testimony asks the witnesses if certain par- ties were on the permanent roll. I should explain about the perma- nent roll. After the adoption of this constitution in 1902, there was in each magisterial district of the county a registration board ap- pointed, composed of three people, who registered all parties entitled to register. There was a new registration, a general registration of the State, and all parties then were registered. Old soldiers were allowed to register, sons of old soldiers were allowed to register, and then other parties came in under an educational qualification. That is, they had to be able to read certain sections of the constitution and explain them to the satisfaction of the board before they were allowed to register. Of course, that was intended to cut out the negro ; but it cut out a good many white men. The electoral board of registration which was appointed continued for two years. They continued up to 1904. The list of the people that they put on the registration list is called the permanent roll. Those people on the permanent roll of course must have paid their taxes three years before the election, because they had to get on the roll prior to 1904. Now, the con- testee, in his brief, says that it is not shown for- what purpose these people were attacked, but the}^ could have been attacked for no other purpose, because the poll-tax list was filed here showing that they were not on that poll-tax list, and they were asked the question whether they were on this permanent roll, to show whether they were entitled to vote, whether they had paid taxes for three years, and if they are not on the poll-tax list for three years and are on the permanent roll, it is conclusive evidence that they have not paid the poll tax required of them. And, further, the registrar was placed on the stand by con- testee's counsel and asked if he had his books there, and he was asked if they were not young men who had just become of age, or if they were not registered as old soldiers. Those registrars, of course, placed as many of those on the list as they could — that is, these young men that I have referred to, who had just become voters, or old soldiers or sons of soldiers. McCreary says : In purging the polls of illegal votes the general rule is that unless it be shown for which candidate they were cast they are to be deducted from the whole vote of the election precinct, 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 from said precinct. In many instances, it is not shown how the party voted or what their politics were. In that instance, I take it, taking the precinct and taking the vote for that precinct, that you deduct from each one in proportion to the amount they received at that precinct. At PAKSONS VS. SAUNDERS. 29 Stokesland precinct and at Keeling precinct, in Pittsylvania County, the contestant did not receive any votes. So I suppose all the illegal votes there would be counted from the contestee's majority, because certainly the contestant got no benefit from it. In several other pre- cincts there he would get from 1 to 6 votes, while the contestee was getting all the way from 30 to 80 votes. There were a great many of them at Kentuck precinct. I had a list here wliich I found in the brief filed with the committee, showing that they are illegal voters. As I say, in these counties the tax-paid list will have to be consulted along with these briefs, showing that they are not on there. At Kentuck precinct there are 17 who voted without having paid the proper amount of poll tax and without their names being on the poll- tax list for the requisite number of years, because they are nearly all shown to have been on the permanent registration list, which is con- clusive evidence that they should have paid for three years. The Chairman. How many votes did Mr. Parsons receive there ? Mr. Carrico. The contestee received 67 and the contestant 4. Ml'. Bennet. What county is that? Mr. Carrico. That is the Kentuck precinct. Mr. Bennet. In Pittsylvania County ? Mr. Carrico. Yes, sir. At Ringgold precinct in Pittsylvania County, 14 persons voted without having been on the tax-paid list, and most all of them are on the permanent roll of voters and should have paid for three years. They may appear on the tax-paid list for one or two years, but they are not on there for three years. They have not paid their taxes for three years, and conseciuently they are illegal voters. At that precinct the contestee received 70 and the contestant received 5 votes. Mr. Bennet. In Kentuck, Mr. Saunders received 77 votes and Mr. Parsons 4. Mr. Carrico. At Ringgold precinct, in the same county, where there were 14 illegal votes, the contestee received 70 votes anc? the con- testant 5 votes. The Chairman. How many votes in that precinct were challenged by reason of nonpayment of taxes ? Mr. Carrico. Fourteen. Mr. Nelson. That is, that many that you would call illegal ? Mr. Carrico. Yes. There were more than that challenged, but at the time they were challenged they were not on the poll-tax list for the proper number of years; but the contestee in his evidence summons the registar and shows that some of them were young men and some of them were old soldiers. But of these 14 the regis- trar could not testify that they were either young men or old soldiers, and consequently they should have paid the tax. Mr. Bennet. How many votes were there cast at Keeling pre- cinct Mr. Carrico. Six illegal. Mr. Bennet. Wlien you say illegal, you mean men that were not on the tax-paid list ? Mr. Carrico. Men that were not on the tax-paid list; yes, sir. Mr. Bennet. In that precinct, Mr. Parsons had no votes at all. Mr. Carrico. Mr. Parsons had no votes; no, sir. Neither did he have any at Stokesland precinct, in which there were 6 illegal votes, and 6 at Keeling. At those precincts Mr. Parsons received no 30 PAKSONS VS. SAUISTDERS. votes at all. At Laurel Grove there were two men not on the tax- paid list who voted, and the contestee received 48 votes and the con- testant 1 vote. At Cedar Hill precinct, in Pittsylvania County, there were 4 votes that were illegal and the contestant received 2 votes and the contestee 20 votes. At Dry Fork, in Pittsylvania County, which went Republican, it is shown that there were 27 voters who voted without being on the tax-paid list. That was shown by the contestee' s evidence. But the contestant on his rebuttal evidence shows that 16 of these parties were either old soldiers or young men who had just come of age and not entitled to be on the tax-paid list. Eleven of the parties who were shown by the contestee not to have been on the tax-paid list are shown to be strong Democrats. The politics of one of the parties is not shown. And it goes that way all through the list. Now, then, in Grayson County, at Pugh Place precinct, a man by the name of Quillen offered to vote. He had secured his transfer thirty days before the election, as required by law, and he offered it for registration on the day that the Democratic registrar had set for registration. But the registrar, finding that he had set less than thirty days before the election for registration, refused to register anybody, and he refused to register his transfer. But our statutes say that where a transfer is secured thirty days before election it may be offered on the day of election in the same county in which it is secured and be voted on without being registered, and the judges of election will place it on the registration books. This man Quillen tried to vote, offered to vote for contestant, but was refused. The contestee in his brief says it was illegal for the registrar to refuse to register him, because it was less than thirty days before the election when he offered to register. I agree with the contestee there. But still this man was a legal voter when he tried to vote on his trans- fer, because he had that right. But the contestee is not quite con- sistent at the same place, because a Democrat by the name of Young offered to register there and he says he should have been registered on the same day, and that he would have voted for contestee. I grant you that. But I want to be consistent. I say he has no more right to register than the man with the transfer, and we claim that the man with the transfer had no right to register because our law says a man must register thirty days before his election. At Rugby precinct there were two parties who offered to vote for contestant and whose names were not on the registration list. Rugby was a new precinct which had been taken from the Mouth of Wilson precinct and had been taken from the Pugh Place precinct. Our law provides and makes it mandatory on the registrars at the two precincts from which the new precinct is taken to furnish the registrar of the new precinct with a list of all the voters who are on his books that are within the new territory, and that he shall place them on the books, and that they shall be entitled to vote without any effort on the part of the voters. Now, then, these parties were registered in the Pugh Place precinct. They live within the new territory. It was the duty of the registrar to furnish their names to the new registrar, and they should have been on the registrar's books. Therefore they are legal PAKSONS VS. SAUNDERS. 31 voters and they should have been received and registered on that day by the judires of election. We claim tliat the contestant is entitled to those votes. There are a good many more points I could go over and name at these different places. As to the tax-paid list, the contestee claims that in Grayson County a good many men were on the tax-paid list, written on there in red ink. Now, that is true, and very naturally so. The clerk has this list printed when it is furnished to him by the treasurer for the purpose of having it posted for the thirty days. That is posted for thirt}'' days, and men who have paid their poll tax, finding their names are not on the list, apply to the circuit court to have their names placed on the list, and when the court sends in that order the clerk natiu'ally, not wanting to put the county to the expense of printing a new list, which would cost some fifty or sixty dollars, simply places them on there with pen and ink — places their names on the list, and they go to the judges of election, furnishing them with the evidence as to who is qualified to vote. At C^omers Rock precinct there were either four or five men on there with their names written on the list. The list was duly certified out to the judges as being a proper list for them to be guided by as to who was qualified to vote. They received the list, as required by law, from the clerk, along with the ballots, and they had that list there, and none other, to go by as proof, but still they were challenged and not allowed to vote at that precinct. We claim that contestant is entitled to those votes. They offered to vote for the contestant and their names were properly on the list ; but because they were written in ink the Democratic judges refused to let them vote. At the same precinct two or three Democrats whose names were written with ink on the tax-paid list were allowed to vote. That is all shown in the record. Mr. Bennet. How many votes come under that class — I mean whose names appeared on the tax list in red ink, who were not per- mitted to vote ? Mr. Carrico. If I mistake not, five at Comers Rock. I do not recall now, but my brief will show each and every voter that was so refused. The Chairman. Have you taken the testimony of these men who appeared ? Mr. Carrico. We have taken the testimony of some of these men who appeared and offered to vote, and then we have taken the testimony of the Republican judge of election over there, showing that they appeared and said they wanted to vote for the contestant and they were refused the privilege of voting there. Mr. Saunders. Would you point out to the committee that part of the record which shows that these people at Comers Rock offered to vote for contestant ? Mr. Carrico. Yes; I will do that. Mr. Saunders. You will find it referred to in contestant's second brief, pages 323 and 324 of the record. Show wherein those people say they would have voted for the contestant. Mr. Carrico. They were shown to be Republicans. Mr. Saunders. Well, I will admit that; but show that they offered to vote and were rejected. Please show that thej said they would have voted for Parsons if they had been allowed to vote. 32 PAESONS VS. SAUNDERS. The Chairman. What were their names ? Mr. Saunders. S. K. Fielder, J. W. Hall, and Bob Catron. Mr. Carrico. I will refer you to page 633 of the record. P. K. Catron testifies, and his testimony will be found at that page of the record. Robert Catron was one of the parties referred to, and his father states as follows: Q. Was there any voters desiring to cast their ballots that day challenged and rejected at your precinct? A. Yes; there was some. Q. State who they were and for whom did they intend to vote? A. One was my son, Robert Catron. I don't know that any of the others that were objected to come in, and they intended to vote for Parsons for Congress. Q. Did W. E. Hall vote there that day? A. I don't think he did. Q. Why did he not vote? A. He was challenged. Mr. Saunders. Hall was challenged on a different ground. His name could not be found, and while they were looking for it he got away. But I refer to the people that you say were rejected because their names were in red ink. If it is not disturbing you, I would like to have you point that out. Mr. Carrico. I don't know that they said they would vote for contestant; they said they were Republicans, and my recollection is that the record shows that they went there for the purpose of voting and were challenged. The Chairman (reading from the printed record of testimony, p. 323): Q. What are the politics of the said Andy Sells, and whom was he supporting for Congress in the last election? A. He is a Republican, and was supporting Mr. Parsons. Mr. Saunders. It does not say that they offered to vote at all. Mr. Bennet. W. S. Cornett testifies (p. 634): Q. Did W. E. Hall vote there? If not, why not, and what was his politics, and for whom did he wish to vote? A. No; he was challenged; he was a Republican; he would have voted for Parsons for Congress; he told me so. Mr. Saunders. That is not embraced in this inquiry that I ad- dressed to Mr. Carrico. It has a dift'erent foundation. Hall was in this fix: Hall was entitled to vote all right, but they could not find his name. It was in the wrong place. The judges could not find his name, and while they were looking for him he got out of the place. When they called him, he had gone. Mr. Bennet (reading from testimony, p. 634): Q. Do you find W. E. Hall tax paid in name of W. E. Hall or Ellis Hall? A. W. E. Hall; he goes by name of Ellis Hall; was trying to find it in name of Ellis Hall; found it in name of W. E. Hall. The Chairman. Proceed, Mr. Carrico. Mr. Carrico. The record shows that these people were there for the purpose of voting, I think. This man Cornet was a Democratic challenger there. They may not have gone in to vote, but some of them did. This fellow, Catron, was there in red ink. He went in to vote, and his father says he was challenged and refused the privilege of voting. Probably all did not vote, but they were there for that purpose, and the evidence shows that they were strong Republicans. PARSONS VS. SAUNDERS. . 33 I think, clearly under the law of the case, wherever their politics are shown to be strongly Democratic that that is a good index to go by that they voted for the contestee, and vice versa where they are shown to be strong Republicans. There is one other thing, and then I am through, and that is as to the taking of Floyd County out of the fifth district. I am only going to discuss two or three points on that, and I will be through. I would like for the committee to look at this map. [Producing map.] There is Floyd County. There was the fifth dis- trict as originally composed. It is testified to in the record that it is about 10 miles from this point [indicating] to the North Carolina line. Mr. Nelson. What is the length of the Sixth district ? Mr. Carrico. I could not tell you. Floyd County was taken out of the Fifth district and placed in the Sixth district. Floyd was in the Fifth district. I will show you the lines, the boundaries, of the old Fifth district. [Indicating on map.] The lines of the new Fifth district are these [indicating]. They just took that county out and added it to the Sixth district. The Chairman. Who prepared that map ? Mr. Carrico. That was prepared in Floyd County. I don't know who prepared it — one of the witnesses. The Chairman. Is there any controversy as to whether that is the correct map ? Mr. Carrico. I think not; I think Mr. Saunders will concede it. Mr. Saunders. That is substantially correct. You will find the same outlines in the Congressional Record; this is simply on a larger scale. Mr. Carrico. And there is evidence in the record that this is about 10 miles across here [indicating]. That is not controverted. It is further shown in the record that that 10 miles is composed of a moun- tain spur and there are no means of communication, by road or other- wise, from Carroll County into Patrick County. The Chairman. Does not the record also show that there is a com- munication; are there not some witnesses who testified that there are roads through that portion ? Mr. Saunders. There is a turnpike up to Floyd court-house, and a turnpike leads to Stuart, the county seat of Patrick County, from Carroll. Mr. Carrico. Witnesses who live there testify that there are no roads and no means of communication. Mr. Saunders. You go by Mayberry and the Meadows dam. Mr. Carrico. When you go by the Meadows dam, you go on the Danville pike, which extends from Stuart around through Floyd County into Carroll County. The witnesses testify that there is no public road there connecting one end of the district with the other. Mr. Saunders. There was a witness who testified to that, but we say that, as a matter of fact, that is not correct. Mr. Carrico. So far as I know, it is correct. The Chairman. Well, that is not material. Mr. Carrico. Here is the law that I wanted to call attention to. This is section 55 of the constitution of Virginia : The general assembly shall, by law, apportion the State into districts, correspond- ing with the number of Representatives to which it may be entitled in the House 38069—10 3 34 PAESOisrs vs. saundeks. of Representatives of the Congress of the United States, which districts shall be composed of contiguous and compact territory containing, as nearly as practicable, an equal number of inhabitants. Mr. Bennet. That is the constitution of Virginia ? Mr. Carrico. The constitution of Virginia, section 55. The lan- guage of the federal statutes is identical with the constitution of the State, saying that the districts shall be composed of contiguous and compact territory and containing, as nearly as practicable, an equal number of inhabitants. Mr. Nelson. Is the wording identical ? Mr. Carrico. The wording is identical with the act of Congress passed in 1901, I think, making the apportionments. Mr. Tou Velle. Do I understand you correctly to say that the wording of your constitution is the same as the wording of the act of Congress ? Mr. Carrico. Yes; that portion of it — that is, ''which districts shall be composed of contiguous and compact territory, containing, as nearly as practicable, an equal number of inhabitants.'' The act of Congress passed in 1901 says the same thing. I do not think that the contestee in this case can consistently claim that the taking of Floyd County from the fifth district and adding it to the sixth district will make the fifth district more compact, because it clearly shows that it leaves it less compact. The federal census in 1900 showed a population in the fifth district, including Floyd County, in round numbers, of 175,000; and it showed in round numbers that the sixth district, exclusive of Floyd County, had a population of 187,000 — 12,000 more than the fifth district. Floyd County contains something like 15,000 inhabitants. Mr. Nelson. What was the unit of population for congressional districts under the apportionment of 1 908 ? Mr. Parsons. 185,000. Mr. Nelson. How much was the sixth district over the unit ? Mr. Carrico. In the census of 1900 the sixth district was 12,000 larger than the fifth district, before Floyd County was taken out of it. Mr. Bennet. It was 2,000 over the unit ? . Mr. Carrico. Yes; it was 2,000 over the unit. Now, it certainly was not to equalize the population, because it is shown in the record here that in 1900 the sixth district had 187,000 and the fifth district 175,000. It is shown further in the record that up to the time of the passage of this act taking Floyd County out of the fifth district and placing it in the sixth district that the sixth district had grown in population greater than the fifth. The fifth district is a rural district. It has only one large town in it, the city of Danville. Roanoke is right near the borders of the fifth district. Roanoke city is not located on the map here, and it has drawn very largely from the fifth district. That is shown in the record. So that cer- tainly the population in the sixth district up to the time of this taking of Floyd County out of the fifth and placing it in the sixth had increased more than the fifth, and therefore the disparity in the population was greater at the time they took it out than the census of 1900 shows. The census of 1900 showed that the sixth district was larger than the fifth, with Floyd County included in the fifth. It could not have been for that reason. It is conceded by the contestee here that this committee has the same rio-ht as a court PAKSONS VS. SAUNDERS. 35 to pass on these things. Then if they have, the courts have passed on this and it will be arqiied by my associate counsel more at icno-th and cases cited where it is shown that the legislature has disreo-arded the constitutional mandate; they have neither tried to make the territor}^ more compact nor have they tried to equahze the popula- tion; they have disreoarded those provisions. They have lost sight of the constitution, and the courts will intervene and declare the acts null and void in such cases. Now, if it is conceded that this committee has the same right, we ask that this committee exercise that right; and that the committee say that the legislature of Virginia had lost sight of the constitu- tional provision when it took Floyd County out of the Fifth District and ])laced it in the Sixth District, and that they left the Fifth Dis- trict less compact. . They added to a stronger district and took away from a weaker district. Therefore, they lost sight of equalization in population, and I might add, gentlemen, that they lost sight of everything; but it seems a partisan way of getting votes. We have extracts taken from the Democratic press, which are fded with the record, which I would like to have the committee read. Mr. Nelson. What do you mean by the Democratic press? Do you mean local papers or the metropolitan Democratic papers ? Mr. Carrico. The metropolitan Democratic papers; the Roanoke Times, being the organ of southwest Virginia Democracy; the Rich- mond Times-Dispatch; the Richmond Journal; the Richmond News- Leader. Mr. Nelson. In substance, what do they say, without going into it in detail ? Mr. Carrico. In substance, they say it is a gerrymander for politi- cal purposes only; that it is not for the good of the State, and it says that the Democratic party may rest assured they will be called to account for it; that the spirit of the new constitution has been vio- lated; that it was intended for the purpose of excluding the negro vote, which it did ; and it was now left for the wliite men of the State to settle the political questions and that the Democratic party would be in a bad hole if they substitute legislation for apathy in their party in order to hold their Members in Congress. That is the sub- stance of it. Mr. Tou Velle. How did the district go, as it now is ? Mr. Carrico. Exclusive of Floyd County? Mr. Tou Velle. In the presidential election ? Mr. Carrico. President Taft carried it by 11 votes. That was exclusive of Floyd. Mr. Bennet. Including Floyd, how did it go ? Mr. Carrico. Including Floyd, I thinlv it went about 1,100 for Taft. Mr. Nelson. You say that the present district, the fifth district, went for Taft ? Mr. Carrico. Yes, sir; it went for Taft by 11 votes. Mr. Howell. Including Floyd ? Mr. Carrico. No, excluding Floyd County; and b} about 1,100 including the vote of Floyd County. Mr. KoRBLY. Is it your contention that the legislature is bound to follow county lines in making a district ? Mr. Carrico. Oh, yes; I think so. 36 PAESONS vs. SAUNDEES. Mr. KoEBLY. What is the basis or authority for the claim that they are bound to follow county lines ? Mr. Carrico. I can not just lay my hand on the statute, but the statute provides that they shall have regard to county lines in redis- tricting the State. I will look that up a little later and show it to you. They can not divide a county in redistricting. Mr. Nelson. Was the county of Floyd the only county, or was there some other county Mr. Caeeico. The county of Craig was taken from the ninth district and placed in the tenth district. This is the second time that the legislature of Virginia has redistricted under the 1900 census. In 1902 the legislature passed an act redistricting the State; and at that time, besides making some other changes, it added the County of Halifax to the fifth district. Hahfax is due east of Pittsyl- vania County and would be at the eastern extremity of the district. That county is largely Democratic. That was added to the district, but that was in Mr. Glass's district and it didn't suit him, and the governor at that time. Governor Montague, vetoed that bill, as the legislature, he thought, had violated the constitution, as I have shown you, in that it did not make a more compact territory and did not equalize the population. Then in 1906 the State did redistrict, in which a county was taken from the second district, I believe, and added to the first. In all those bills, every district in the State was bounded and each county mentioned. And then in 1908 they redistricted again and took Floyd County out of the fifth and placed it in the sixth district, and Craig out of the ninth and placed it in the tenth district. Mr. Nelson. What effect did the shifting of Craig County have on the population of the respective districts ? Mr. Caeeico. The County of Craig was a Democratic county and the tenth district at one time had a Democratic Congressman here, Mr. Yost, and it was probably to strengthen the Democrats in that district; so Craig was taken off from the ninth, which was largely Republican and placed in the tenth. Mr. Nelson. Can you give me the units of population and the figures ? Mr. Saundees. I can give you the population of each district in the State. The Chaieman. When was it that the State was apportioned and the bill was vetoed by the governor ? Mr. Caeeico. That was in 1902. The Chairman. That was the first apportionment under the new constitution ? Mr. Caeeico. That was the first apportionment. That was vetoed, and then in 1906 there was another redistricting of the State, which was approved by the governor and which became a law. Then, in 1908 there was a further readjusting, and before this election. And that was approved by the governor. There were three attempts, and two successful attempts, to redistrict the State under the same census; and, as I say, I think that that violates not only the federal statutes which provide for the State's redistricting and election of represent- atives, because it does not make the territory more contiguous or com- pact, but it violates the constitution as well — if not the letter, at least the spirit of the constitution — and the federal statutes providing for PAESONS VS. SAUNDERS. 37 the redistricting. As a matter of fact, it has cut the fifth district in two, so far as communication is concerned. Tliere can be no direct conmiunication from one end of the district to the other, according to the evidence in the case. I take it that it is correct, because it is from men who hve in that part of the ihstrict. I am not famihar with the situation myself, except as to the Danville pike coming from Stuart into Carroll. I know you have to go into Floyd County in going that way. I know I have always gone either that way or around through North Carolina. And I am told by people who live there that there is no practical route through this mountain spur except through the sixth district as now composed, or around through North Carolina. So, if not in fact, it in spirit violates the constitution in that the ter- ritory is not contiguous. With that I submit these questions to the committee. I thank you. (At this point, 3.15 o'clock p. m., the committee took an informal recess for fifteen minutes.) Mr. Thurston (after the committee reassembled). I have the pleasure of introducing ex-Governor Montague, of Virginia, who will proceed with the further argument of the case in behalf of the contestant. ARGUMENT OF HON. A. J. MONTAGUE, IN BEHALF OF THE CON- TESTANT. Mr. Montague. May it please you, Mr. Chairman and gentlemen of the committee, I wish to address myself to the invalidity of the apportionment act of 1908. I shall not discuss any other questions in the case. I am not prepared to speak upon them, and I will have to forego any argument upon any of those questions which have been touched or may liereafter be touched by my associates. I wish first to sul^mit to the committee a proposition which I think strikes in limine the whole case under consideration, namely, that when tlie legislature has under a given census or enumeration made an ai)portionment it exhausts its j^ower to make another apportion- ment until there be a recurrence of the enumeration. I need not suggest to this committee that this question is wholly a federal or national c|uestion. It was largelv discussed in the Con- vention of 17S7, and the subject of ai)portionment of representation and the method of representation came very nearly splitting the hodj two or three times. Madison observes in his second volume, 752, that whatever reason might have existed for the equality of suffrage wlien the Union was a federal one among the several States must cease when a national government shovdd be put into its place. By the language "equality of suffrage" he meant that the equality of state sufl'rage when the Union was a federal one under the articles of federation must cease when a national government should be ])ut into its place. It was said time and again by the eminent publicists of that day that this representation by numerical apportionment was given to the National Government and not to the States, in order that the former might preserve itself should exigencies arise. I think it will be conceded that neither under the Constitution of the United States nor the constitutions of the several States has 38 PAKSONS vs. SAUNDEES. districting ever yet been held to be lawful without an express con- stitutional provision to that effect. (2 Bartlett Contested Election Cases, p. 55; also, 12 N. J. Law, 363.) Now, I am aware that there is a precedent, a political precedent as contrasted with a judicial precedent, and I do not mean to disparage it by making that distinction — in what is known as the Perkins case. I suspect the committee is more familiar with it than I am. The Chairman. Is it the New Hampshire case ? Mr. Montague. The case of Perkins v. Morrison. It is quoted in Hinds' Precedents, and also in 1st Bartlett, and perhaps some other places. In that case I think the question was raised that a second apportionment under a census was an illegal apportionment. I thmk, however, it should be said that it is a partisan report, and decided by party hnes. Before I leave that case, I beg the attention of the committee to this point. At that time the committee in considering the question did not have the benefit of the decisions of juridical bodies throughout the country dealing with almost identical provisions in state constitutions and apportionments thereunder of legislative and judicial districts. I say that because I am persuaded that if that question were a question of first impression before this committee you would decide, almost as a rule of stare decisis, that the whole logic and necessities of the case would require a departure from the rule therein laid down and an adherence to the law which I shall quote before I conclude. There the case went ofl^ on section 4 in Article I of the Constitution, bringing it under this classification: The times and places and manner of holding elections for Senators and Representa- tives shall be prescribed in each State by the legislature thereof. In other words, holding that apportionments or districting was a manner of ''holding elections." I submit to this committee that if it were a question of first impression, it would be your conclusion, the inevitable conclusion, that the "holding of elections" is not the making of apportionments, and that the "holding of elections" is not the districting of a State; that the "holding of elections" relates mainly to a ministerial and judicial function; that the "holding of elections" means the conduct of an election; and it would be absurd to speak of the conduct of an apportioning or the conduct of a districting. Therefore, the clause which was invoked there did not support the premise; and the premise being false, the conclusion necessarily falls with it. The "holding of elections" must relate to the subject of voting and the methods of voting. When this case of Perkins v. Morrison was heard, in my own State, if I am not mistaken, many of the elect- ors had one and two and even three votes in some instances. An elector could vote wherever he had land. He had a personal vote and he had a property vote as well. It was not the purpose of the Federal Government to interfere with that. It was not the purpose, as I understand it, to interfere with whether the vote should be viva voce or secret; whether it should be wholly by human operation or by voting machines or what not. The "holding of elections" ex vi termeni, has no relation to the subject of apportionment or districts. The election, if it please the committtee, is the instru- PAESONS VS. SAUNDERS. 39 ment whereby the citizen (lelep:ates ]iis authority. The apportion- ment and district is a pohtical subdivision, a marking- oil' a «^iven grou]) of people according to an enumeration, who possess political powers — that is all that the apportionment can possibly mean — and grouping within a district according to numbers, as nearly equal as it may be. The statute then in force as to districting, which had gone in effect shortly before that, was not, if I read it correctly, what tlie present statute is — the act of February 16, 1901. Take the section 4 of the latter act. I will read it: That in case of an increase in the number of Representatives which may be given to any State under this apportionment, such additional Representative or Representa- tives shall be elected by the State at large and the other Representatives by the dis- tricts now prescribed by law, until the legislature of such State, in the manner herein prescribed, shall redistrict such State. I read this for this purpose, that here is a distinct affirmative state- ment that until the redistricting the districts shall remain as they are now, the idea being all along that apportionment and enumer- ation are complements of the same power; they are each essential to the exercise or the other; that it would be folly to have an enumera- tion, so far as representation is concerned, without an apportionment;'^ and likewise it would be impossible to have an apportionment without an enumeration; that the two constitute one and the same exercise of power, each being essential to the other. When 3^ou have an enumeration you must have an apportionment, and when you have an apportionment you must have a precedent existing enumeration. When you have an apportionment, you mean that that apportionment proprio vigore, occurs under an enumeration. They are both carry- ing powers. They both are the time and mode of doing one thing; and it is horn book law that when you do a thing at a time and according to a mode prescribed you consume the power in doing the thing; the power is thereb}^ exhausted, and the legislature is functus officio to exercise that power after getting through with it. Take the case here. I will read the statute: And if there be no increase in the number of Representatives from a State, the Rep- sentatives thereof shall be elected from the districts now prescribed by law, until such State be redistricted as herein prescribed by the legislature of said State. Take that language and extract from it either plural enumerations or plural apportionments. When the act says the districts shall remain as they are, the idea of a single enumeration alone is meant; and when you sa}^ that they shall remain as they are, until you have another act to transform it into something else, that transforming or reapportioning must necessarily be a single act, and its plural exercise is, in the nature of things, forbidden. The case of Perkins v. Morrison is the only case that I have been able to find that sustains the contention of plural apportionments. And here the exhaustion of power is only indirectly discussed. That, I believe, was in 1850 or somewhere about that time. The Chairman. There is a case in North Carolina Mr. Montague. Yes; I will come to that. That case, unless I am mistaken, does not involve a second apportionment under the same census; it was a repeal of an apportionment under a prior census by the act of making an apportionment under a second census, a distinc- tion that should be borne in mind; there the question was not the 40 PAHSONS vs. SAUNDERS. exhaustion of power by reason of the former apportionment — and we must always take decisions as to the facts upon which they are based — but whether the successor of the Member whose decease or resignation occasioning the unexpired term should be elected in the district of the original representative or from the new district, for both apportionments were valid. Mr. Saunders. You are speaking of the case of Brown v. Poole ? Mr. Montague. Yes. Mr. Saunders. Was not that same case presented in the case of Morrison v. Perkins ? Mr. Montague. No; I think not. Mr. Saunders. Yes; that part of it was just the same. Mr. Montague. I think not. But if Judge Saunders is correct, my position is stronger, because my contention is, my understanding of the Morrison v. Perkins case is, that there the second apportion- ment was under the same census as the first apportionment. In the Poole case there is no plural apportionment under the same census. Mr. Saunders. In both of those cases the vacancy was not in the same district where the first vacancy took place. Mr. Montague. That may be true; but the point I am trying to convey is this, that you can act only once under one enumeration or census. The Chairman. And in the New Hampshire case, they acted twice. Mr. Montague. Yes; and in the North Carolina case they only acted once. In the case of Hunt v. Menard, the comment of Mr. Hinds, speaking of the Morrison-Perkins case, at page 179, is this: The doctrine of this case was reversed by case of Hunt v. Menard (2 Bart., 477), although the latter was complicated somewhat by another question of fraud. The comment here is that that case was reversed by Hunt v. Menard. I am frank to sa}^ that it is not my construction that it was wholly reversed. I think it reversed upon one point in Perkins v. Morrison. I beg to accentuate again this contention; that the case of Per- kins V. Morrison stands alone, and that it has not been affirmed by subsequent action of Congress, so far as I have been able to find. In the case cited in the brief of Denny v. The State (144 Ind., 503), decided in 1895, I will read the syllabus, which is the same as that contained in the body of the case — because I wish to expedite the argument. [Reading:] A valid apportionment law can be passed only once for each enumeration period, under our State constitution, Article IV, section 4, providing for the enumeration every six years, and section 5, requiring an apportionment at the session next following the enumeration. There is no affirmative expression there against reapportionment within six years. I have a case here, an Illinois case, which is pre- ciseh" on all fours with this case in its chief features and the real essential principles involved; it turns upon the statement I made a while ago, that when the mode and the time are prescribed and you have complied with that requirement, the legislative power is ex- hausted, and its further exercise is ultra vires until the time and the wav occur for it again to be done. PARSONS VS. SAUNDERS. 41 I will read section 5 of tlie constitution of Indiana. [Reading:] The number of Senators and Representatives shall, at the session next following each period of making such enumeration, be fixed by law and apportioned among the several counties, according to the number of the male inhabitants above 21 years of age in each; provided that the first and second election of members of the general assembly shall be made before the adoption of this constitution. As the committee will see, there is no ex])ress language prohibiting a further apportionment. It gives the right to make one in six years, but does not prohil)it two in six years. And yet, the court holds that when the act is once exercised thereunder, it can not be repeated until the subsequent enumeration has been made, and then only one apportionment can be made thereunder. Mr. Nelson. In that case, did they attempt to reapportion in the six-year period ? Mr. Montague. Yes; they attempted to make two, and the second one was held invalid. The Chairman. That was under the state law of Indiana ? Mr. Montague. Yes; under the state constitution. Now, I come to the Illinois case. The article in question is in these words (Art. IV, sec. 6, constitution of Illinois) : Sec. 6. The general assembly shall apportion the State every ten years, beginning with the year 1871, by dividing the population of the State, as ascertained by the federal census, by the number 51; the quotient shall be the ratio of representation in the senate. The State shall be divided into 51 senatorial districts, etc. This language applies to senatorial apportionment, and the lan- guage is substantially that of the Constitution of the United States. Mr. Saunders. What case is that ? Mr. Montague. I beg your pardon; I thought I had given it. It is the case of People ex rel. William Moonev v. Hutchinson (172 111., 486). Mr. Saunders. That has not been cited heretofore. Mr. Montague. It is found in 172 Illinois, and also in 40 L. R. A., page 770. This is a very well considered opinion. Here the question was amending an apportionment by adding one county. The court used this language: The question thus raised is whether the election for senators and representatives, to be held in November, 1898, is to be held in the districts as created by the law approved June 15, 1893, and in force July 1, 1893; or in the districts as fixed by said mandatory act approved January 11, 1898, and which, if valid, will go into effect July 1, 1898. You see this is quite an identical case with the one here under con- sideration. The court further says: The presumption is that it was for the purpose of a better adjustment of rights of representation that Dupage County was added, and that the mandatory act was passed with a view to making the legislative branch of the Government more nearly repre- sentative of the people in their sovereign capacity. Even if made, if you please, for a greater equality of population or for more compactness of territor}^ or for a greater contiguity of terri- tory, the court says we can not consider that; it is not a question of policy, it is a question of power. The court goes on to say: This, however, can not influence the determination of the case if there was a want of power to make the change, for it has always been held, as it was in People ex rel. Woodyatt v. Thompson (1.55 111., 451), that a court can not declare a statute uncon- 42 PAESoisrs vs. saui^ders. stitutional and void on the ground of unjust differences not prohibited by the statute, and within the legislative discretion; and neither can a court sustain a law, where there is a want of power to enact, merely because it is wise in policy or just in its provisions. 1 have read the provision. I have stated to the committee that this particular act considered by the court was in the form of an amendment to a former apportionment act, if that be, as suggested in Mr. Saunders's brief, one of the questions to be considered; yet, if you will look at the two Virginia acts, you will see one is as complete as the other. One makes an amendment, it is true, but it redistricts the whole State throughout. But I don't think that is of moment at all. It is not a question of how greatly the power is exercised; it is a question of whether it is exercised at all. The Chairman. What is that Illinois case ? Mr. Montague. The case of Mooney v. Hutchinson. That was the case of a mandamus to compel the holding of an election under one act, alleging the second act unconstitutional. The Chairman. Is that the only Illinois case you have ? Mr. Montague. Yes; it is the only one I have. I can not now recall any others. There are some stated in this opinion. Now, I wish to read from the opinion : The passage of an apportionment act is the exercise of a legislative power — _ I will not take up the time of the committee to cite all the authori- ties that are given — and if there were no other provisions relating to apportionment than the general legislative authority conferred by section 1, the legislature might apportion the State at its pleasure at any time. There is no express denial in the constitution of the right to exercise this power whenever the legislature may see fit, and it is therefore argued for the defendant that it may be exercised at any time, and that the legislature may make an apportionment whenever they choose. That is the precise contention here which I am trying to combat. The Chairman. That is the contention in the New Hampshire case, is it not ? Mr. Montague. Yes, sir; argumentatively, it is. I will read further from this opinion : This does not follow, however, and it is not essential in order that the constitution may operate as a prohibition, that it shall contain a specific provision that apportion- ments shall not be made otherwise than according to its provisions. The general principles governing the construction of constitutions are the same as those that apply to statutes. ' He then cites authorities and continues: The use of enactive words would be conclusive of an intent to impose a limitation, and they are used in some instances in the Constitution ; but their absence is not con- clusive of the opposite. Where there are provisions inserted by the people as to the time when a power shall be exercised, there is at least a strong presumption that they designed it should be exercised at that time and in the designated mode only; and such provisions must be regarded as limitations upon the power. (Citing Cooley on Constitutional Limitations, 6th ed., 94.) If legislative power is given in general terms and is not regulated, it may be exer- cised in any manner chosen by the legislature; but where the Constitution fixes the time and mode of exercising a particular power it contains a necessary implication against anything contrary to it, and by stating a particular time for its exercise it also states a boundary to the legislative power. If a power is given and the mode of its exercise is prescribed, all other modes are excluded. He then cites Sedgwick on Statutory and Constitutional Law, 31: The legislature must keep within the legislative powers granted to it and observe the directions of the Constitution. PAES6NS vs. SAUNDERS. 43 Now I read this : It is here admitted, as it necessarily must be, that the provisions for apportionment are all exclusive, except the particular one as to time. I think this must be conceded here, for it is inevitably the conclu- sion that must be reached: It is not denied that the basis for apportionment must be the population of the State as ascertained by the last federal census; that the population can only be di- vided by the number 51 ; and that the quotient must be the ratio of representation in the Senate. The only claim is that the provision as to time is not exclusive, and we can not see any substantial ground which established a different rule respecting the time than a mode of doing the act. Now, I desire to make one comment here, which, I can almost say, if the committee forgets everything else I beg them to remember it; that the whole contention here that there must be negative words, express words of exclusion, in the Constitution, is giving a forced construction. I contend when you give the time and the mode the exercise is limited, and the power can be repeated by affirmative words only. That is my contention. It is not the absence of exclusive or negative words restraining apportionments, but to carry the power for plural apportionments there must be affirmative words authorizing the renewal of the apportionment, and I think this decision justifies me in submitting that as the proper construc- tion of constitutions dealing with such apportionments as we are now considering. Absence of affirmative authorization necessarily forbids second or plural apportionments. [Reading further from the same opinion, above referred to:] In Wisconsin the constitution provided for an apportionment and organization oi assembly districts once in five years, but contained no express prohibition against their alteration between the periods fixed for apportionment, and in Slauson v. Racine (13 Wis., 398) it was said that "whatever limitation existed upon the power of the legislature in that respect was to be derived from the general scope and object of the provisions of the constitution concerning the apportionment of Senators and Repre- sentatives, but that it might well be said that this furnished such limitation;" and it was held that the provision implied that apportionments should not be made at any other time than that fixed by the constitution. The constitution of Indiana fixes the time once in six years when an enumeration of the voters of the State shall be taken, and the apportionment shall be made by law. Citing the case of Denny v. State (144 Ind., 503), the opinion says: This question was determined against the claim made, and it was held that if there were no particular provisions in regard to the subject of legislative apportionment, the legislature might, under a full and unrestricted vesting of legislative power, enact apportionment laws at their pleasure, but that the fixing by the constitution of a time and mode for the doing of such act was, by necessary implication, a forbidding of any other time or mode and a prohibition of the exercise of the power in any other way. The eminent counsel who have argued this case for the defendant with great learning and ability have failed to find any decisions contrary to the foregoing, or any authori- ties conflicting with those given, but insist that there is a difference between the constitution of Indiana and this State which makes the decision in Denny v. State (144 Ind.) inapplicable here. The distinction attempted to be shown we are com- pelled to regard as unsubstantial, and can not consider it a ground of difference that the enumeration which was made the basis of the apportionment in Indiana is taken once in six years, while the census, which is made a like basis in this State, is taken by the United States, .and once in ten years. I will read further from the same case : The apportionment, after the First Census, was not made to depend upon any subse- quent enumeration or event, and after the first enumeration the legislature not only apportioned the State every five years, but made changes during intervals. 44 PARSONS vs. SAUNDEES. Wliat has been the legislative interpretation, long established and acquiesced in in this country, as to enumerations in the United States ? Are they ever made at any other time but once in ten years ? Now, I will read the conclusion of this case. [Reading further from the case of Mooney v. Hutchinson:] When the legislature of 1893 made the apportionment of that year, the conditions existed which authorized the exercise of the power and the legislative discretion was exercised, based upon the federal census of 1890 — a division of the population by fifty- one and the resulting quotient as the ratio of representation. That power and dis- cretion, when fully exercised, were exhausted and the power will not again arise until the conditions provided for in the Constitution shall again exist. The power and dis- cretion are to be exercised at stated intervals and in certain modes, and that legislature, upon consideration of the facts, exercised the power and the discretion. A subse- quent reapportionment based upon the same census, the same division, and the same quotient, which it is admitted must be used, would be nothing but reversing the judg- ment and discretion of that legislature, exercised upon the same facts at the time expressly authorized by the Constitution; and we can not think that it was in the con- templation of those who adopted the Constitution, that succeeding legislatures should set aside the conclusion of the first by changing and remodeling districts, where no new condition contemplated by the Constitution exists. As I said at the outset, if this were a case of first impression here, I don't think there could be any doubt as to the invalidity of the sec- ond apportionment, that it was an excess of power and was uncon- stitutional. And I submit, I repeat, that the case of fifty years ago, made in the heat of party stress, should not be taken in this day of good will throughout the length and breadth of the country, to over- rule the juridical judgments of the United States, I may add, the settled law of the land, wherever the question has been squarely passed upon by judges, considering the case before them as judges, and applying the law of the land to the case. The Chairman. The courts seem to be partisan still, however. Mr. Montague. But you will find that in this case they went against their own partisan convictions and decided on the other side. The Chairman. What was the Indiana case? Mr. Montague. There is a dissenting opinion in that case I have just referred to. The case in Indiana is the case of Denney v. The State. The Chairman. Have jou referred to the case of Parker v. State of Indiana ? Mr. Montague. I have not. It is referred to in those cases, but I do not think that takes up the question. That case deals with the inequality of population rather than the exhaustion of power. The Chairman. My reason for asking is that that is one of the cases cited by the contestee in this case, on which he relies. Mr. Montague. When you read that case, you will find it is not a precedent. I think there are some other cases Mr. Saunders. What case is that ? The Chairman. The case of Parker v. State of Indiana, that you refer to on page 13. Mr. Montague. In the case of Cunningham v. Secretary of State (81 Wis.) The Chairman. I might say that the case of Parker v. the State is one of the cases on which you folks have been relying. Mr. Montague. It sustains our view in its general argumentative character, but I don't think the question sufficiently similar to make it identical with the case I am now arguing. PARSONS VS. SAUNDERS. 45 In this case, the State v. Cunningham The Chairman. Is that the Wisconsin case? Mr. Montague. Yes, sir. I suhmit that few cases have been argued with more ability than this Mr. Bragg, Mr. Estabrook, and Senator Spooner argued the case, and the argument is given at great length in the report of the case. There, however, the chief question involved was the inequality of population, discrepancy in the appor- tionment of population. There is a case in Ohio, the case of Evans V. Dudley (First Ohio, p. 437), where this question of a second ap- portionment was involved, and supports, as far as it goes, the con- struction which I am submitting as to exhaustion of power. Mr. Tou Velle. Is there not a later decision in Ohio than that? Mr. Montague. I am not prepared to say. This may be a little desultory, but my eye falls upon this particular clause. It relates more to the disparity of population than it does to the exhaustion of power; but the court says there that the right to pass upon the constitutionality of the apportionment act is a purely judicial one; that the passage of such an act is the exercise of a legislative and not a political power, and goes on to give a number of decisions sustaining that, and then uses this language : The only three cases in which it is even intimated that the court has not jurisdiction in such a case are the opinions of the justices, in 142 Mass., 601; 10 Gray, 613; and Wise V. Bigger, 79 Va., 232. The Chairman. Wliat are you reading from? Mr. Montague. I am reading from the case of State ex rel Attorney-General iJ. Cunningham (81 Wise, 480): There was no argument of the question in these cases, and in the last — That is the Wise v. Bigger case — the question was not in the case at all. Mr. Nelson. That is the Virginia case? Mr. Montague. Yes. And I stop to say that that question was passed over sub silencio in the Virginia case, and it can not be con- sidered in any sense a precedent. Mr. Nelson. Is that case you put in there the case of Cunningham V. State ? Mr. Montague. Yes. I say this may possibly be called a dictum, but the same case says, at page 517: The duty to pass such an act is a continuing one from the time it is constitutionally devolved upon the legislature until performed. The Chairman. This is the Virginia case ? Mr. Montague. No; the Cunningham case. From the time it is constitutionally devolved upon the legislature until performed, though when thus performed the power to pass any other such act is exhausted and will not again arise until after another enumeration. There were three or four opinions in this case, I think three, if I recall, and a unanimous conclusion — all very strong. On this question, if it please the committee, I submit that the report of a political body, no matter how honorable and dignified it may be, over fifty years ago, should not be considered as against opinions without conflict upon the same subject by judicial bodies, passing upon constitvitions similar in almost every respect to the Constitution of the United States. Again, that the United States 46 PAKSOisrs vs. saunders. statute of apportionment at that time is not at all like the act of apportionment in operation now; and that the whole facts surround- mg this case, so far as the act of apportionment is concerned take it out of the ruling in Perkins v. Morrison, and brings it under the ruling of the cases which I have just named, which I confidently assert is the law of the land. There is a West Virginia case to which I want to call to the atten- tion of the committee. I had it a moment ago, but I do not find it at this moment. In that case, there was express language of limitation. Therefore, I have not cited it as being pertinent. The Chairman. Have you cited the West Virginia case ? Mr. Montague. I do not find that case at this moment. The Chairman. Is that a late case ? Mr. Montague. It is rather a late case. The only feature of the case that is worthy of consideration is that in arguendo it approves of the Illinois case and the Indiana case. But the constitutions are different, in that there is an express denial of the power to reapportion. It not only says you should do it, but that you should not do it at any other time. In otjier words, the West Virginia constitution there was commanding in terms what the decisions had decided in Illinois, Indiana, and Wisconsin was the law without such terms. (Harmison v. Commissioners (W. Va.), 42 L. R. A., 591.) Mr. Bennet. Are you familiar with the cases in the State of New York? Mr. Montague. I thank you for calling my attention to the matter. I will cite the New York case on this point before I leave it, the case of Baird v. Supervisors (138 N. Y., 106), where the opinion was delivered by the late Mr. Justice Peckham, then of the court of appeals of the State of New York, I believe. The court of appeals is your highest appellate court in New York? Mr. Bennet. Yes. Mr. Montague. There are so many of those courts that I some- times get them confused. I cite that case on the particular point, where the judge deals with very great force with the subject of necessary implication. There, for instance, the State in one constitution, of 1846, said the districts should be apportioned to the population equally divided, and in the constitution following it the subject of the equality of population was omitted altogether; but it says that the State should be appor- tioned, and Mr. Justice Peckham said the conclusion and the whole history of the State of New York unquestionably meant that the population of these legislative districts ought to be measurably in keeping with equality, district to district. Now, therefore, I will leave that particular phase of the case and address myself to one other. Mr. Bennet. Before you leave that, it may interest you to know that there is a very recent case in New York, decided within the last two or three years, and I would be interested in having your view of this state of facts. W^e redistricted the State. We had an enumera- tion, to adopt your method of thought for a moment, in 1905 and a redistricting in 1906. Some gentlemen contended that the redistrict- ing was not in accordance with the constitution of 1894, our latest constitution. They took the case to our court of appeals and the PARSONS VS. SAUNDERS. 47 court of appeals sustained their contention and set the redistricting aside — set the apportionment aside. Mr. Montague. On what ground ? Mr. Bennet. On the ground of inequality, a violation of the con- stitutional provisions as to contiguous territory. Mr. Montague. Not on the ground of exhaustion of power by rea- son of a second apportionment under the same enumeration ? Mr. Bennet. No; but the point I wish to get your opinion on was this. They specifically directed a second apportionment, which was had and under which we are now acting. Mr. Montague. I am not familiar with that case. Mr. Nelson. They directed a second apportionment after the first had been declared unconstitutional? Mr. Bennet. Yes. Mr. Montague. The legislature rejected it ? Mr. Bennet. The court held that the first apportionment was not an apportionment at all. Mr. Montague. But they held that the constitutional mandate was continuing and another apportionment must be made under this com- mand ? Mr. Bennet. Yes. Mr. Montague. That I think entirely correct. It is a continuing power until exercised, and that particular exercise was an abortive attempt to exercise the power. Mr. Bennet. So they held. Mr. Montague. I imagined that would be it. I want to read from Cooley on Constitutional Limitations. [Read- ing:] If the directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least strong presumption that the people designed it should be exercised in that time and mode only. That is page 115. I read that before, I think. But here is what I wanted. This is in the 7th edition, prepared with great care by Professor Lane, of the University of Michigan, who has not under- taken to change the text, but to accompany it by cases and annota- tions. There is this footnote: Where the constitution provides that the legislature shall apportion the State into legislature districts, every ten years and that such appointments — He means apportionments — shall be based on the last preceding federal census, one exercise of this power of apportionment exhausts it, and the State can not be reapportioned until after the next federal census. He then cites the Illinois case to which I have referred. If it please the committee, I have not gotten along as fast as I had hoped, but I want to address myself for a moment to what I consider the invalidity of this apportionment act of 1908, on the ground that it does not preserve the equality of population or compactness or contiguity of territory. As I have suggested in my opening, it seems to me that this particu- lar power primarily must rest in the National Government, m order that it might meet any exigencies that might arise as a means of self- S reservation. It has only in a measure been taken over by the ational Government, though the National Government possesses the 48 PAESONS VS. SAUNDEES. power now to deal with this case. That leads me here to make one suggestion, and that is as to the mode, the times, and places of hold- ing elections. In what was known as the "force bill," which was enacted by the National Government, the constitutional question of apportionments was not touched in the act. That did not go to the q^uestion of apportionment or enumeration, the act went to the ques- tion of holding elections, distinct subjects. Mr. Bennet. The manner of holding them ? Mr. Montague. Yes. The idea of any sane man saying that the holding of an election is the making of an apportionment or the mak- ing of a district is to me inconceivable. Of course, I say that respect- fully. Mr, Bennet. Before you start in on the other branch of the argu- ment, do you desire to say anything about the case of Carter v. Rice, in New York ? Mr. Montague. I don't want to weary the committee. That is cited in the Baird case and cited also in the Indiana case, if I recol- lect correctly. I am sure it is cited in the Illinois case. The Chairman. It is superseded by a later decision of the New York court, as I understand it? Mr. Bennet. Yes. Mr. Nelson. Do you remember the decision? Mr. Saunders. There is a later case, but it does not supersede it at all. Mr. Nelson. Carter v. Rice arose under the constitution of 1846 in our State, and it was a rather bitterly contested case and involved the redistricting of our State into senate districts. The decision in that case, as I recall it, was that under the constitution of 1846 there was a certain discretion in the legislature, and although the districts might not be entirely contiguous districts, entirely compact districts, and entirely equal as to population, that the legislature having exercised its discretion, carved out the districts, the court of appeals would not interfere, and they did not interfere, and it is in a subsequent case that they did interfere and under the constitution of 1894 upset the apportionment. Mr. Nelson. On the ground of inequality of population or lack of contiguity in territory, which? Mr. Bennet. The latest decision was on the ground of inequality of population and contiguity of territory and compactness of districts — all three. Mr. Saunders. I do not understand that these gentlemen claim that that later case reverses Carter v. Rice. Mr. Montague. I simply say that on the subject of inequality of apportionment and compactness of territory each case must stand upon its own merits. The courts' decisions all sustain or support the right to declare such acts invalid, and you can get from these deci- sions the general principles which should apply; but whether in any given instance the district lacks compactness or lacks contiguity, or lacks equality of population, must m the last analysis be deter- mined by the particular case. Mr. Bennet. But you do contend, as I understand it, that the jurisdiction is in the courts of a State to determine whether a legislative act is under a constitution requiring equality of population and contiguity and compactness of territory; that the legislature PAESONS VS. SAUNDERS. 49 must comply with that and that the court has a risiht to say whether they have comphed with that. Mr. Montague. I (k>; yes. I say the courts will be careful but have lull power to tlo it. That is very well put, Mr. Bennet. As I stated, I don't know but three cases that hold that a court can not tlo that, and T have cited those. I think counsel concedes this in his brief. I think Mr. Saunders puts it rather strongly. It is a question sometimes of the chancellor's foot. It must be determined by the court's sense of intellectual and ethical a])preciation of the ritihtfulness and wron_i2,fulness of things. One of the three cases referred to is th(> case tried in my own State, of Wise V. Bigger. This was known as the readjuster court in Vir- ginia. The president of the court was -Judge Lewis, a very excellent man, a Repul)lican. The judge who delivered this opinion was Judge Fauntelroy, a very excellent gentleman. In that case there was a manthimus to compel the keeper of the rolls — we call our clerk of the house of delegates the keej)er of the lolLs — to strike from the I'olls, and the superintendent of public ])rinting to omit from the acts of assem- bly, the ])articular act of apportionment thei'e involved. (Page 269 and beginning at page 282 of the o])inion.) Nearly the whole of the o])inion is taken u}) with a discussion of jurisdiction to entertain mandamus in such a case, the verity of the journals of the legislature, and that the kee])er of the rolls hati no authority to strike out the act, and that the public printer was functus oflicio after having printed it to recall it and you could not compel him by a mandamus to do so. The w^hole case was mainly taken up with this discussion, and concludes in this way: But the laying off and definin<); of the congressional districts is the exercise of the political and discretionary power of the legislature, for which they are amenable to the people whose representatives they are. That is one of the three cases which I have submitted as denying the jurisdiction of the courts to declare invalid apportionment acts. There is not a thing in this case other than the quotation just made which touches the case here, and this opinion is generally commented upon unfavorably wherever cited. I have tried to show, first, that a comt has am})le power to annul an act of the legislature on the ground of inequality of population, lack of compactness or lack of contiguity in the districts. I think it will be conceded that such an act can be declared null and void. Now, can this })e ^ Is there anything in this act that justifies its invalidity ? The constitution of Virginia follows the C^onstitution and the statute of the United States. So this committee, if my contention is sound, need not invoke the Constitution of the United States to intervene to overtlirow the statute of Virginia. It can overthrow the statute to save equality of the population and compactness and con- tiguity of territory under the constitution of Virginia. This is section 55 of the Virginia constitution: The general assembly shall by law apportion the State into districts corresponding with the number of representatives to which it may be entitled in the House of Repre- sentatives of the Congress of the United States; which di^^tricts shall be composed of contiguous and compact territory containing, as nearly as practicable, an equal num- ber of inhabitants. :38069— 10 4 50 PABSONS VS. SAUNDERS. I am frank to confess that the courts give quite a good deal of lati- tude to the legislature in the exercise of that mandate. What do you mean by compact territory ? What do you mean by as nearly the same population as may be ? Now, take this district, the Fifth district. It had 175,000 population, in round numbers. This act takes from it 15,000 population in the county of Floyd. The unit would be the quotient of 1,800,000, divided by 10, the number of Representatives allotted to the State of Virginia, which, in round numbers, would put the unit at 180,000 for each district. Mr. Nelson. May I interrupt for information ? Mr. Montague. Certainly. Mr. Nelson. What was the unit of population in the State which the governor vetoed — which yourself, as governor, vetoed ? Mr. Montague. I can not remember it all; I can not remember it, but it was substantially about this. Mr. Bennet. I don't think you understood the question. He asked what was the unit. Mr. Montague. One hundred and eighty thousand under the pres- ent census. Mr. Bennet. Both were based on the last census ? Mr. Montague. Yes. You see, we never made any apportionment. An apportionment was attempted in 1 902 and it failed. Mr. Saunders. In 1902. Mr. Montague. Then in 1906 an apportionment was made, and in 1908 another apportionment was made; two being made, you see, under the same census, and it is this second apportionment that I argue as ultra vires because the power of apportionment had been exhausted by the act of 1906. The Fifth district now contains 160,000, about 20,000 less than the unit of population. The Sixth district contains 187,000 population, 7,000 more than the unit of population. Now, what was done? Floyd County was taken from the district that was below the unit and added to a district that was above the unit of population. In other words, the 187,000 population was increased to 202,000, and the 175,000 population of the Fifth district was decreased to 160,000. Now, how can you explain that you are complying with the consti- tution of Virginia, with the Constitution of the United States, that each district shall be as nearly equal as practicable in the matter of population, contiguity, and compactness of territory ? The Chairman. We are going to let Judge Saunders show that. Mr. Nelson. Was there any community of interests involved ? Mr. Montague. I think not. But even if there were, can a com- munity of interest override what are the express requirements of the Constitution of the United States and of the State in respect to equality of population, contiguity, and compactness of territory? Those are the three factors, as I understand it, to determine- — not community of interest. I can well appreciate that sometimes to get compactness of territory you may fall back in equality of population, and vice versa; I appreciate that; but there can be no argument, I submit, that in this case before us the inequality in population was exchanged for greater compactness of territory, or that less contiguity was exchanged for greater equality of population. The map of the district has been shown. I do not know an3"thing of the proof in this case. I understand that it was charged in the notice that the taking PARSONS VS. SAUNDEES. 51 of Floyd County rendered this district practically not contiguous, because when you reach the contiguous point in Patrick and Carroll counties you can not pass from one into the other unless you depart from the district because of an intervening mountain barrier. The Chairman. Communication through Floyd County? ]\Ir. Montague. You must go through Floyd County, or on the south, through North Carolina. I am told that there are witnesses wlio testified to that state of physical facts, and that those witnesses are not contradicted. If that be true, then the fact must be conceded that you can not get from Patrick into Carroll by the ordinar}' method of communication. That is a mountainous country. I presume that fact has appeared here. There is a range of mountains running across, and the only way of communication are the common public roads through what are known as the gaps, north or south as the case may be, and thei'e are no roads through Patrick directly into Carroll. I am told that the evidence sustains that. If so, I submit that that demonstrates the lack of that contiguity which the statute requires and which the Constitution of the United States and of Virginia require. It renders it also uncompact, because it does not make any difference if they do touch physically if at the point of contact the physical obstructions are of such character that the inter- communication is interrupted ; I submit that if that physical fact stands out then the contiguity is broken and the compactness is broken. May I read a word or two from the Wisconsin case and the New York case may be cited as sustaining it. Says the court in this case : And here it is fit to observe that perversion of the constitutional rules of apportion- ment designed to secure a fair and just representation, manifestly tend to and, if unre- strained, may in time work a destruction and overthrow of the system of popular repre- sentative governm.ent itself. It is to no pm'pose to say that if the power of representa- tion by a wrongful and illegal apportionment has l^een put in the hands of the minority, whereby they are able to perpetuate theii' ascendency and power, there is, as was con- tended in argument, an adequate and appropriate remedy for such wrongs at the ballot box. The case of Attorney-General v. Eau Claire (37 Wis., 400), adjudicated after elaborate argument and the fullest consideration, is directly in point. The rights ad- vocated and protected from the prejudicial effect of an unconstitutional act of the legislature, the assertion of which it was sought to restrain in that case, were not rights of property or proprietary rights in any proper sense; but were rights of sovereignty which the State, in its own political capacity, held and was bound to guard and pro- tect — rights not other or different in point of law from the rights of the people to have full effect given to the political power of each elector and a fair and constitutional ap- portionment of the representative legislative bodies. I understand that the equality of population is intended in order that a people may not be over represented or under represented. In other words, districts shall have about the same population, that each may have the same representative power in legislative councils; and that it is one of the aims of our Government that one group shall not be so large that thereby it would be unrepresented, or so few, that thereby it would be over represented; but that you should bring, in order to preserve the numerical power, which finds its voice in the House, into districts of about the same population. Mr. KoRBLY. It is not your contention that the district is tlie unit of representation? These gentlemen represent Virginia. Mr. Saun- ders represents all the people of Virginia, does he not ? Mr. Montague. That is an argument which is made with a deal of force, but I have suggested — although I may be mistaken — that I 52 PARSONS vs. SAUNDERS. can not conceive how you can hold this a national question, and it is national under the powers of the Constitution, for the very purpose of national self-preservation and then subordinate it to the unre- strained poM^ers of the State ; for the people of the State rather than the political entity known as the State are represented in national, rather than in their state, power in the House of Representatives. Mr. Bennet. Does not the fact that the Constitution of the United States in one of its sections provides for the election of President, in case there is no election by the electors, b}'' the House of Representa- tives, in which case each State gives one vote, and that one vote being determined by the majority of Representatives from that State, rather compel an equality of representation in the State? Mr. Montague. Yes, but only as to this extraordinary method of election; and then, Mr. Bennet, that was the subject of the com- promise in the convention of 1787, to give the people representation in the House and the State representation in the Senate. That was the great question that came near breaking the convention up two or three times. The Chairman. What would you say as to the inequality of appor- tionment in my own State ? For instance, the third district has over 284,000 population, and my own district has only 157,000, or a differ- ence of 126,000. Mr. Montague. What would be the unit ? The Chairman. The unit was about 180,000. Mr. Montague. In your State ? The Chairman. Yes, as I recall it. Mr. Montague. How many Representatives have you ? Mr. Nelson. Did it exhaust its power at the time of the first apportionment Mr. Montague. You mean that is the present condition? The Chairman. The present condition. Mr. Montague. I would answer then, Judge, because I can not embarrass the march of my argument to its legitimate conclusion, I would answer that unless there were some very special reasons why you could not have greater equality of population, that that dis- crepancy constitutes an unconstitutional apportionment. Mr. Saunders. In the State of New York there are districts which exhibit a greater difference in population than that; for instance, one district has over 400,000'and another only 154,000. Mr. Montague. Now, you bring me to questions that I may be treading on people's toes to discuss; but if you will permit me to express my own candid view, I will say the whole thing is wrong, and that Virginia is as interested in an equal apportionment in Kansas, and Kansas equally is interested in an equal apportionment in Virginia. This is the one point and power in which we touch hands in a national sense throughout the length and breadth of the Republic ; and I do not know of any better time that we may set a precedent of real force and character. President Harrison, you remember, delivered a message in which he said that gerrymandering, or the inequalities of representation, was one of the dangers of the Republic. Mr. Nelson. I would like you to give us what you think is our power to declare unconstitutional a state law. Mr. Montague. I think you have the same power that the court has. In fact, Mr. Saunders concedes that; and, indeed, I think you PARSONS VS. SAUNDERS. 53 have more power. I do not say more power, but you are a political body supervisino; another political body, acting; in this matter as the agent of the National Government, and therefore you are not trench- ing upon the several departments of the Government ; you are simply confining the agent, the State, within its constitutional limitations. The Chairman. It is conceded we have the power. Mr. MoNATGUE. I submit, in conclusion, that the discrepancy of population here is not justified; that its reduction was in a case where there should have been an addition rather than a reduction; and that the compactness of the territory was lessened when there was no necessity for lessening it; and both as respects numbers and territory the inequality or disproportion are unconstitutionally exaggerated by this bill. There seems to be no possible reason to justify, in a constitutional sense, any such discrepancy. Mr. Howell. If this apportionment had been made in the first instance by the legislature of Virginia, would you deem it such an apportionment as ought to be attacked on account of its inequality or population and lack of compactness ? Mr. Montague. My answer to that is that when that question was presented to me under my official oath, I vetoed it on the ground of its unconstitutionality. Now, one other cjuestion. It is manifest in this particular case that if the present apportionment is invalid you go back to a better con- dition so far as compactness and population are concerned, than obtains under the apportionment act of 1908, should this act be declared invalid. Mr. Nelson. Have we, sitting as a court here, to take into con- sideration consequences, very much? Mr. Montague. The courts have done that. I don't know that you would have to do it; certainly not as to the question of exhaus- tion of power. That would not apply at all. I have read a decision on that. Here is the Ninth District, with 220,000 people. Mr. Saunders can correct me if I am wrong. Those are the present figures after the change has been made. This includes Craig County? Mr. Saunders. Yes. Mr. Montague. How much population has Craig County? Mr. Saunders. It is a small county — perhaps ten or eleven thousand A Member. About 6,000. Mr. Montague. The Ninth District, then, was about 218,000, but yet in this apportionment of 1908 they added Craig County to that district. Mr. Saltnders. Oh, no; they took it away. Mr. Montague. I mean they took it from the district, which only cuts it down 6,000 from 218,000. That is the only case where there is any tendency to better the apportionment — the subtraction of Craig County from the Ninth District. The Tenth District has 190,492, inclusive of Craig. So you see there was no necessity, so far as population was concerned, to add Craig to the Tenth District. I will not pursue this further, save to say that in the first place this contiguity from the map is a matter of visual proof, supplemented, of course, by proof as to communication, so that contiguity may be easilv determined. 54 PARSONS VS. SAUNDEES. Mr. Bennet. Would the legislature of 1902, under your constitu- tion, have power to pass that apportionment act over your veto ? Mr. Montague. Oh, yes; but there was not a move made to do it. The legislature seemed to recognize the constitutional prescriptions which were suggested. Mr. Bennet. I assume that there was enough of one party in either branch to have had from that party the necessary two-thirds, or whatever was necessary. Mr. Montague. Your assumption is not a violent one at all. Mr. Nelson. If you recollect, how did the conditions in the fifth and sixth districts then compare with what they are now ? Mr. Montague. The sixth district was above the unit then, and yet an addition is made by the last apportionment. Mr. Nelson. I mean did the fifth and sixth districts have the same lack of contiguity and compactness in population in the apportion- ment that you vetoed ? Mr. Montague. Perhaps conditions in some of the districts were more accentuated; others were not so much so. The fifth district we are now considering was not as unequal under the vetoed appor- tionment as under present apportionment. But I have not gone over that for some little time, and I do not pretend to be accurate in my recollection. The Chairman. Have the courts of your State ever passed upon the questions with reference to redistricting the State ? Mr. Montague. No, sir. The Chairman. It has not been before any district court of the State ? Mr. Montague. Not that I know of. You mean the legislative or senatorial apportionment ? The Chairman. Yes. Mr. Montague. I can not recall any. The Chairman. I mean in the districts of your State. Mr. Montague. You mean the United States district courts? The Chairman. No. Mr. Montague. You mean our state courts ? The Chairman. Yes; as to whether in the election of state senators or members of the legislature any such question has come up. Mr. Montague. I can recall none. No; I do not remember any; I am quite sure that there has not been any in the historj?^ of the State. The Chairman. If we are to believe what is said by some of the leading Democratic papers in Virginia, that a great outrage is perpe- trated by the legislature of your State in reapportioning your State as they have, why have not some of them gone into the courts and brought up the question of state apportionment under the constitu- tion, as to whether or not this legislation was constitutional — whether this act was constitutional ? Mr. Montague. This is an apportionment purely of the congres- sional districts. The Chairman. I understand; but could not this case have been determined in your state courts ? Mr. Montague. I think so. . ' The Chairman. Why has it not been ? Mr. Montague. I could not answer that. The Chairman. It would have been a very proper thing for either of these parties to have gone into the state courts ? PARSONS VS. SAUNDERS. 55 Mr. Montague. I think so, on a mandamus or injunction; it would have brought the matter up, and then it could have been appealed to the Supreme Court of the United States if necessaiy, I thmk. But that is a pretty long procedure, and the question has been submitted now and the jurisdiction and power of this committee are conceded. It can do what the courts can do. I ask it to apply the law the courts would apply. (Thereupon, at 5 o'clock p. m., the committee adjourned until to-morrow, March 3, 1910, at 10 o'clock a. m.) Committee on Elections, No. 2, House of Representatives, Thwsday, March 3, 19101 The committee met at 10.25 o'clock a. m., Hon. James M. Miller (chairman), presiding. The Chairman. Senator Thurston, have you anything more to say in favor of the contestant ? Mr. Thurston. No, Mr. Chairman, we have finished oui- opening. The Chairman. Then w^e will hear Judge Saunders. STATEMENT OF HON. EDWARD W. SAUNDERS, A REPRESENTA- TIVE IN CONGRESS FROM THE STATE OF VIRGINIA. Mr. Saunders. Mr. Chairman and gentlemen of the committee, I am glad to be able to come to a definite issue over this matter, and to find out what are the present contentions on the part of this contest- ant, upon which he bases his claim to a, seat in the Congress of the United States. I might cite a famous saying, and exclaim: "Oh, what a fall is here, my countrymen," having reference to the extent to which this case has shrunk since the first statements about it were given out to the newspapers, and since the contestant first put his claims into formal shape in his notice of contest. That notice abounded in charges of fraud, of irregularity, of conspiracy, of wrong- doing, of injustice. It concluded with a statement that the irregu- larities in this case were such that, on investigation by the committee, it would find am})ly sufiicient grounds upon which to seat the con- testant. Taking up these charges of fraud and conspiracy, it will be noted that they have vanished. There is not a shred of testimony to support them, and they are not even insisted upon by counsel. There is gone forever from this case the charge that, with respect to the candidacy of Matliew, there was a conspiracy on the part of the contestee, and of the election officials, and of the Democratic party in the State of Virginia, to induce him to become a candidate; gone for the simple reason that the evidence in this case shows that no such conspiracy ever existed. The Democratic party was at no time a party to any scheme by which this man was to become a candidate, nor did it seek to preserve his candidacy as a secret from all the voters, save the Democratic voters. The evidence on this question shows that it was the Democratic newspapers in this dis- trict that spread far and wide the fact that this man was a candi- date. So far from his candidacy being a secret, it was known all over the district, to everyone who kept track of the news items in the papers. The evidence in this case shows that the Lynchburg 56 PARSONS VS. SAUNDEES. News, the editor of which is Mr. Glass, my colleague in this House, one of the most strenuous, and if you choose to call him so, most partisan Democrats in the State of Virginia, published two weeks before the election the fact that there would be three candidates in the Fifth District of Virginia, naming Mathews as one of the three. This paper has an extensive circulation in every county in the fifth and sixth districts. (See Record, p. 380.) The evidence further shows that in the county of Henry another supporter of mine who, I suppose, attacked Mr. Parsons more vig- orously than any other editor in the district, or in Virginia, in the issue of his paper that came out the week before the election, called attention to the fact that Mathew would be on the ticket, and cau- tioned the voters with respect to marking their ballots. This edi- torial is an exhibit. (See Record, p. 265.) It is further shown that, so far as Mathew's candidacy was con- cerned, instead of the same being a secret it was spread abroad in the district for weeks before he sent his notice to the secretary of the Commonwealth. He sent his postal cards broadcast. One of them was received in the county of the contestant by the clerk of the court there, Mr. Bryant, one of the leading men of the Republican machine in that county. (Record, p. 325.) Another was received in the eastern end of the district by the Democratic mayor of Chatham. (Record, p. 415.) Further, the fact that he was a candidate was posted on the door of the court-house in the county of Henry. (Rec- ord, p. 266.) A friend and political supporter of mine, on the elec- toral board of Franklin County, wrote to the secretary of the Com- monwealth that Mathew had announced throughout the district the fact that he was a candidate for Congress. So much for the charge that there was a conspiracy to preserve the secret of Mathew's candidacy. It was spread broadcast from one end of the district to the other. Hence I say that this charge of conspiracy in respect to this man's candidacy has vanished into thin air. The Chairman. Are any of the clippings from any of these papers in the record ? Mr. Saunders. The proof is in the record, and I have cited the committee to the appropriate pages of the record where the same may be found. I will say further, gone forever out of this case is the charge that we were interested in keeping this man Mathew upon the ballot, for the evidence shows that the only effort that was made to keep Mathew from the ballot was made on the part of my own friends in my own county, who were the first and only persons to inform the secretary of the Commonwealth that he was of a disordered mind, and to suggest that he ought not to be on the ballot. There was taken in this case a significant piece of testimony, made more significant by reason of the fact that the man who gave it little knew how prejudicial his statement would be to the cause of his friend, Mr. Parsons. The testimony of a man named Roller was taken in the county of Rockingham, in the State of Virginia. Con- testant endeavored to show by him the fact that Mathew was a candidate in secret, and that the Democratic organization had kept the knowledge of the same from the people of the Fifth District of Virginia. The}^ asked him in the course of his testimony, this ques- tion: "Who would know about the fact that Mathew was a candidate ?" PARSONS VS. SAUNDERS. 57 In his answer he went on to state that tlie nieiulx'i's of the electoral boards of the counties would be the only people who would know that fact, and then he added: "As a matter of fact, there would be only one electoral board in the Fifth District of Virginia who would know whether the man was a lunatic or not, and that board was the board of the county of Mathew's residence, the board of the county of the contestee, that is, the county of Franklin. These people would know that he was a lunatic as soon as his name was certified down to them by the secretary of the Commonwealth as one of the names to go on the oflicial })allot of the Fifth District." Then the witness added, little knowing the actual situation, that if that board had been disposed to be fair, it would have called the attention of the secretary of the Commonwealth to the fact that this man was a lunatic. At this time the witness was unaware that that was precisely what had been done by the secretary of the board in the comity of Franklin. Mr. KoRBLY. That he was insane ? Mr. Saunders. Yes; that he was a lunatic, because they were aware of the fact. Roller suggested a course that the board, in his opinion, should have pursued all unwitting that this was exactly what had been done. I am interested in this action of the local board, not as a matter of law, but simply as a matter of good faith, because I would not have this committee entertain the idea that I would be a part}" to a disgraceful scheme to induce a lunatic's candidacy merely to confuse the ballot in my district, a scheme that* would be unworkable under the present laws of Virginia, as I will show to this committee. The scheme would have been as futile as it would have been disgraceful on the part of the conspirators. The very moment the notice came down to the secretary of the electoral board of Franklin County that Mathews's name would be one of the three names on the ballot, the secretary of that board, who, as I have said before, was my personal friend and political supporter, sat down and wrote to the secretary of the Commonwealth to the effect that Math- ews was a lunatic, a man of good education, but of disordered mind. (Record, p. 585.) In this letter Martin suggested to the secretary that Mathews's name ought not to appear on the official ballot. The sec- retary of the Cominonwealth, mindful of his duty in the premises, replied that he had no authority under an}" proceedings he could institute to erase this name, and referred his correspondent to the highest law officer of the State of Virginia, the attorney-general. A correspondence then followed between Mr. Martin and the attorney- general. The letters that passed between the two are fded as exhib- its. Gone forever, therefore, from this case is the suggestion that the Democratic party of the Fifth Virginia district set on foot a dis- graceful scheme to further a lunatic's candidacy or to aid or abet it in any way, for the simple reason that it amply appears that the only people who were ever concerned in any movement to hinder Mathews's name from appearing on the ballot were Democratic officials in con- testee' s district. Gone also is the charge made in the notice of contestant, that there was a conspiracy on the part of the Democratic organization to deprive him and his party of the right to minority representation in the election judges at the several precincts in the Fifth District of Virginia, gone for the reason that the alleged conspiracy was a figment of contestant's imagination, and gone for the further reason 58 PABSONS VS. SAUNDERS. that the contestant made no effort to follow up that allegation b}^ any sort of evidence in support of the same. So far from the charge being true that contestant did not have minority representation, it is shown that at more than one precinct in the Fifth District he had a majority of the judges. At one precinct he had all of the judges and all of the clerks. At another he had all of the judges and one of the clerks. At still another he had two of the judges. (See Analysis, pp. 80, 83, 89.) There was not a precinct in the Fifth District of Virginia at which a minority judge had not been appointed in con- formity with the law of that State. There are only one or two places at which any question is raised, and I will call the attention of the committee in this connection to these places. At Design, a precinct in the county of Pittsylvania, the complaint is made that the judges of election at that place would not appoint a Republican as the third judge. I wish to call the attention of the committee to the facts, as appears from the record, that a Republican had been appointed for that precinct, a man named Wright, and the evidence shows that an official ballot was abstracted while the package of ballots was in his possession. He appeared at the polls on the morning of the elec- tion and declined to act. Another man was then recommended, but he was believed by one of the judges to be in possession of the miss- ing ballot, in fact he claims to have seen him with it. Hence the judges would not appoint this man. Under these circumstances the judges appointed a Democrat. (See Analysis, p. 26.) I assert that the Republican judge who was appointed at that place either abstracted the ballot or else permitted the abstraction, because no effort was made to refute the evidence which convicts him of the charge. I defy these gentlemen, in this connection, to refer me to any evidence in this record refuting that in de- fense of Mr. Wright. In this connection, I wish to say to the committee that when I assert a proposition, , as a fact, I hold myself ready, in response to inquiry from any member of this committee, or the counsel representing the contestant, to support that assertion by immediate reference to the record in this case. The evidence relating to Wright is simply this: He was appointed in the first instance by the electoral board. The law of Virginia requires that the official ballots shall be put up in sealed packages and sent to the judges at the precincts. The judges who receive the packages receipt for them, and by the law this receipt must show that the packages are in good condition when received. (See code Va., Sec. 122e.) The evidence further shows that this man Wright received an official package of 150 ballots, in good condition. (See evidence of Ramsay, a member of the electoral board. Record, p. 417.) Wright was not compellable to receive the package unless it was in good condition, because the law requires him to state the condition when received. The uncontradicted evidence shows that on the morning of the election when Wright turned up with the ballots, the package had been tampered with and the seal defaced. The judges proceeded to count the ballots in this package, which, according to the notation, should have been 150. They found but 149 ballots, and the election was then delayed while they made a record of that fact and sought to get into communication with the law officer of Pittsylvania County to ascertain what to do under the circumstances. ^ (See Record, Robertson, p. 377.) PAKSONS VS. SAUNDERS. 59 Mr. Cakkico. Did they not a})t)oint a judge there in the j>lace of Wright, who had not paid his poll tax ? Mr. Saunders. Yes; it is asserted that he had not paid his poll tax, and I want to ask 3^ou in that connection what difference did that fact make, even if the charge is true ? Mr. Carrico. Does not our law provide that all the judges of elec- tion must be duly qualified ? Mr. Saunders. Show me the section which requires a judge to have paid his taxes. Mr. Carrico. It does not say so in express terms. Mr. Saunders. Show me the section that makes this requirement in indirect terms or in any sort of terms. Here is the section of the Code, section 118, that relates to the qualifications of judges. (See p. 5 of the Analysis.) I am glad this matter has been brought up in this connection, because I want to ask another question of these gentlemen, and then ask the committee whether they wish to go into certain questions raised in this case. It appears that at one or two precincts in Pittsylvania County the judges who acted were technically disqualified. I do not say that they were appointed by the electoral board, because the record is silent on that point, but it would not make any difference if they had been. They acted and they were technically disqualified. At one place a man was a constable; at another a justice of the peace. Technically, I admit those persons were disqualified from acting as judges by the law of Virginia, but there is no suggestion that at any one of these precincts anyone suffered, or that there was any wrongdoing, or that anything occurred to the prejudice of the contestant. I want to know whether this com- mittee wants to hear any discussion from me, or to have any authori- ties cited in connection with the mere suggestion of contestant that a judge was disqualified. If it is necessary, I am ready to take up that line, but I do not want to take up the time of this committee on propositions which I deem to be absolutely irrelevant. It is unquestionably the law with respect to the ({ualifications of jvidges that if a man acts, even if he has never been sworn, but there is no charge in the notice of contest that there was any wrong- doing at the precinct at which he acted, and it appears that the votes were honestly cast and honestly counted, then the disqualification of the judge is not sufficient ground for the rejection of the vote at that precinct. As I have said, I would like to know if the committee would like to hear from me along that line, because if the}^ do not it will give me that much more time in which to take u]) the discussion of other matters. Do these gentlemen insist that this disqualifica- tion of a few judges was prejudicial to contestant's interests. I would like to be cited by them, in this connection, to any law upon which thej^ will rely to show that those precincts ought to be thrown out or rejected as a whole at which these disqualified judges acted. If they contend for such a proposition, then I am ready to meet it. If they will frankly abandon any claim of advantage from that feature of the case, then that action will save me and save the com- mittee a needed measure of valuable time. To come back to the gentleman who was appointed at the precinct of Design by the judges of election. They claim that this man was not a qualified voter by reason of the fact that he was not on the tax list. I assert that it makes no difference if such was the case. He 60 PARSONS vs. SAUNDEES. was certainly a defacto judge and his acts valid. In the case of Sherrill and O'Brien, cited infra, the court of appeals of New York held that a legislature elected under an act which they pronounced to be absolutely void was a de facto body and its enactments legal and binding. There is a conflict as to whether this judge had paid his taxes. On page 274 of record, bottom of page, the witness there testifying, posi- tively avers that T. M. Smith, the appointee of the other judges, had paid his taxes. The Chairman. Suppose he was not a qualified voter, and he was selected as judge of election, and then would have to pass on his own qualification to vote, when he was challenged, because he had not paid his taxes ? Mr. Saunders. If he was entitled to vote, no harm would ensue, if he allowed others in the same situation as himself to vote. The Chairman. They have a right to challenge whom they please. Do you think a man who is not a qualified voter at an election has a right to pass upon his own qualifications to vote ? Mr. Saunders. That question does not arise. The Chairman. It might arise; I do not know whether it did arise or not. Did this man vote ? Mr. Saunders. I think he did; yes. The Chairman. Was anv question raised as to the legality of his vote ? Mr. Saunders. Not that I know of, and I want to say, in this con- nection, that so far as his passing on his own qualifications such action would be an impropriety. In such a situation he ought to stand aside just as a member of the Supreme Court when a case comes up in which he had an interest as counsel, simply declines to act so far as that particular proposition is concerned. There is no evidence what- ever that Smith acted on any matter personal to himself. The Chairman. I may say I do not know how the committee feel about this proposition; there has nothing been said to the committee so far in the argument of counsel in reference to this particular case. I do not know what they are going to rely on. So far as I am per- sonally concerned, I have no disposition to go into it at all. Mr. Saunders. I am trying to get from these gentlemen now Mr. Nelson. There was no change in the result ? Mr. Saunders. None whatever. At no one of these precincts is there any challenge of the result; in fact, there is no challenge as to any precinct in the district. The Chairman. Is there a challenge of the result in the precinct where this man was selected as a judge ? Mr. Saunders. Not at all. I do not, however, want to be mis- understood. There are some votes challenged there, on account of individual incompetency and disability, but no challenge of the return as a whole by reason of this man's acting. Contestant and his counsel are present. If I am mistaken in this statement I am subject to interruption, and I ask to be interrupted. The Chairman. There might be a question raised in this precinct as to the number of votes challenged because the voters had not paid the poll tax, and if that judge should have to pass on that it would be an impropriety for him to pass on the disqualification of those who were disqualified by reason of the fact that they had not paid. PABSONS VS. SAUNDERS. 61 Mr. Saunders. Tliere were but few, if any, challenges that I am aware of at this precinct, which raised any questions that the judges as a whole had to pass on, and in which it is shown this man partici- pated. I believe there was one challenge at this precinct wdiich raised a cjuestion of residence. In fact, there were but few challenges of votes in the whole district which were submitted at the time the voter cast his vote. The record shows some challenges and the action of the judges thereon. The Chairman. Because the,y had not paid their i)oll tax? Mr. Saunders. Yes. The Chairman. Would not that go to the very root of the matter, if a judge were selected as judge who had not paid his poll tax and was discpialified as a voter under the laws of his State ? He is there to pass on the (jualiHcations of voters; that is part of his duty as judge of the election. He passes on the c[ualifications of a man who is challenged, and then the next man comes up, and then he ofl'ers to vote himself, and the cjuestion arises whether he is entitled. He either passes on it, or else his colleagues pass on it, and he says, "I will step aside." Mr. Saunders. There is no evidence in the record of any such state of facts as that supposed. Mr. Thurston. We have challenged the particular vote of this particular judge by showing that he was not a legally qualified voter and that he did vote at that polling place. Mr. Saunders. Certainly; but he was not challenged at the time. I have stated that already. I will answer the chairman's question. If the voters now challenged were illegal voters, what earthly differ- ence would it make if this man voted to admit them ? You have the right now, if they were illegal voters, to exclude them. As a matter of propriety I grant you that this man should not have passed on his owai qualifications. But ' is qualifications were passed on by the other judges when they eiected him to sit with them. He had no occasion to pass on them. If any illegal votes were admitted at this precinct, and they votetl for the contestee, you are not hin- dered in any wise from excluding them uy.on proof of the facts. The Chairman. On that pro))osition I would like to have you con- fine yourself very largely to the argument on the (juestion as to whether or not they were legal voters. Mr. Saunders. That is the reason I was asking counsel for con- testant to point out to me the provision of our law which incapaci- tated this man from serving as a judge of election, because he had not paid his taxes. I want them to show me why it was that he was disqualified imder the laws of Virginia. I have answered the ques- tion of propriety, with respect to his individual case, as contained in the question of the chairman of the committee, but with respect to his alleged disqualification to act in the capacity of judge I would like to be cited to the law disqualifying him. Certainly in all re- spects he was a de facto judge. Mr. Parsons. Is he not an officer ? Mr. Saunders. No; in my view^ he is not an officer in the tech- nical sense contemplated by the laws of the State. Mr. Parsons. Doesn't he take an oath ? Mr. Saunders. Yes. So does an attorney at law. 62 PARSONS VS. SAUNDEES. Mr. Parsons. If he is not an officer, who are the officers conducting the election ? Mr. Saunders. He is not an officer in the ordinary sense contem- plated by the laws; an attorney at law takes an oath, but he is not an officer. Mr. Parsons. He is sworn. Mr. Saunders. Very well, suppose he is an officer, then. Is an officer required to have his taxes paid in order to conduct an election ? Mr. Parsons. To conduct an election ? Mr. Saunders. Yes. Show me the law on which you rely. Here are the qualifications provided by the Virginia statute. Mr. Parsons. Section 118. Mr. Saunders. Yes. We have been theorizing, but I now wish to read the section itself to the committee [reading] : No person shall act as a judge or clerk of any election who is a candidate for, or the deputy or ernployee of any person who is a candidate for, any office to be filled at such election, or is the deputy of any person holding any office or post of profit or emolu- ment under the United States Government, or who is in the employment of such Government, or holding any elective office of profit or trust in the State, or in any county, city, or town thereof. Mr. Saunders. Will these gentlemen seriously offer that section as showing that a man must have paid his taxes in order to be a judge of election in the State of Virginia ? That section refers to the quali- fication of a man with respect to the deposit of his own ballot. I am discussing the qualification of a judge of election under the Virginia law. I do not suppose the committee would entertain that section for a moment as authority in this connection. Mr. Parsons. The question I asked you is this: Do you contend that the law requires less of a man to be an officer to hold an election than to vote ? Mr. Saunders. Come down to the law, and let us omit our respec- tive theories. I do contend that it does not require as much. I simply contend that the qualffications of a judge of election are fixed by the Virginia statutes. Mr. Carrico. If he is an officer, read section 32 of the constitution and see if it does not disqualify him. Mr. Thurston. I am not here at this j^resent time to say that this cuts any particular figure, but we do insist that under section 32 of the Constitution a person is not qualified for office, any office in the State of Virginia, except notary public, who is not a qualified voter. Section 32 reads: Every person qualified to vote shall be eligible to any office of the State, or in any county. And the converse is true, by any recogniTied rule of construction, that a person who is not thus qualified is not eligible to office. Mr. Saunders. Well, you are getting on a dift'erent proposition from the one raised by these gentlemen. You raise the question, who is an officer under the law of the State of Virginia. I am perfectly willing to take that up, if the committee considers it necessary to do so, and to undertake to show you that a judge of election is not, in the contemplation of the Virginia law, technically an officer. Mr. Bennet. Do you contend that the disqualifications mentioned in section 18 are exclusive disquahfications, or additional disquali- fications? PARSONS VS. SAUNDERS. 63 Mr. Saunders. They are .the only ones, (Usquahfications, I take it. We never have considered it otherwise, so far as I am aware. Mr. Thurston. From our })oint of view they are undoubtedly additional disqualifications. Mr. Bennet. That is your contention, tliat a man who is disquali- fied by the provisions of section 32 of tlie state constitution would be eligible for a judge of elections ''i Mr. Saunders. Certainly. Mr. Bennet. Although he woiUd not l)e eligible for anv oHice in the State ? Mr. Saunders, "^'es. Mr. Bennet. And that tlie only discjualihcations are tliose con- tained in section IIS ? Mr. Saunders. Certainly. Mr. Nelson. Would you say that a man under 21 was quahfied to act as judge of elections ? Mr. Saunders. Yes; if he was intellectually capable, and not a mere boy. Mr. Nelson. A woman? ]VIr. Saunders. It frequently happens that clerks of elections in the State of Virginia are under 21. That very question, in respect to a judge being under 21, has been presented to me. Yes, I think he could act. I do not think a woman could. Mr. KoRBLY. If an election ofhcer who is regularly appointed does not show up on the morning of election, an election oflicer is selected from those who are present ? Mr. Saunders. That is true. Mr. KoRBLY. If a minor is there, he may be put in ? Mr. Saunders. That is the contention; I maintain that jiroposition. Mr. Bennet. Would you maintain that an ex-convict or a lunatic, both of them disqualified from holding office in the State, would be eligible as judges of election? Mr. Saunders. I would say in response to that query that, of course, you can take almost any inquiry and follow it up to the point when the person who has been answering in the affirmative must answer in the negative. There comes a point when distinction becomes very difficult. It is very easy to distinguish midday from midnight, but not the precise time when twilight becomes darkness. Y"ou can keep on putting questions until you get to a point where things begin to shade into each other. Of course, I do not contend that a convict ought to be appointed a judge of election, nor do I contentl that a woman can hold office in Virginia. The Chairman. Except for notary public ? Mr. Saunders. Yes; that is fixed by our constitution. These things are entirely foreign to the case. I am not contending for any such propositions as the above, but I ck> contend for this proposition, that tlie section of our code which relates to judges of election pro- vides who may and who may not be judges. Section 118 is the section which relates to the qualifications of judges and clerks of election. It is the one to which one would naturally look, when the electoral board came to appoint the judges and clerks. If there is any other section that provides for and fixes the qualification of 64 PAESONS VS. SAUNDERS. judges and clerks, I do not find it in the code of Virginia. That is all I have to say in this connection. To come back to this particular T. M. Smith, and the action of the judges in declining to appoint a man named Ferrall, who was offered as a Republican judge on the morning of the election. Design was the only precinct in Pittsylvania County where complaint was made that a Republican judge was not appointed. This man Wright who had been appointed by the electoral board was a Republican. He came to the polls with the official package of ballots in a mutilated condition. There is no contest over that proposition. Wright did not even go on the stand. There is not a dot of testimony here which undertakes to repel the fact that an official ballot was taken while the package was in Wright's possession. Mr. Carrico. Did not that man who had it in his possession go on the stand and testify ? Mr. Saunders. No; Wright did not testify at all. When I state that a fact is proven I have always in mind some proposition about which no question can be raised under the evidence or with respect to which there is no evidence at all on the other side. This Wright matter belongs to the latter class. I was just going to say that with respect to this man Ferrall, who was offered as a judge, there is a con- ffict of testimonj^ as to whether the abstracted ballot was seen in his possession. The testimony of the election officer is that he saw him in the possession of this stolen ballot on the day of election. (See record, p. 378.) Ferrall denies the charge. The committee can weigh the evidence and determine which of the two is proper to be believed. (See analysis, p. 26, for Robertson's as well as Ferrall's testimony.) There is conflict on that point, but there is no conflict over the charge that this ballot was extracted while in the possession of the Republican judge, none whatever. The proof shows that the package of ballots went to him in good condition ; it shows that 1 50 ballots were called for ; it shows further that when the package was returned by him the seal had been defaced and the package tampered with. On the face of this injurious testiriiony Wright did not dare to go on the stand. Mr. Carrico. Does it not show it was sealed when the judges got it ? Mr. Saunders. No. The package was broken, and the seal had been tampered with. If you wish to go into that inquiry, I had as soon go into it now, as not. I refer the committee to the evidence in that connection, as afforded on page 26 of the analysis. The Chairman. There are some propositions of this case that we are very much more interested in than we are in reference to this question that has just arisen. Mr. Saunders. I think so, too, Mr. Chairman; but I am ready to meet any questions that may be raised on the evidence in this case. Mr. Thurston. V\^e are willing to admit you are loaded on every branch of the case. [Laughter.] Mr. Saunders. That admission does not help me, if I can not un- load with respect to those points that are of greatest interest to me. [Laughter.] If you look on page 26 of the analysis, which refers to the pages of the record, you will find the following as to VV^right : In the county of Pittsylvania, the ballots for the precinct of Design, were de- livered to one Wright, who had been appointed Republican judge for that precinct. These ballots were in a sealed package, containing as per the markings, 150. Section 122e of the Code imposes upon the electoral board the delivery of the ballots, and re- PAKS<)^'S vs. SAUNDERS. 65 quires the judu;e who receives them to receipt therefor and give a certificate that the seals have not been tampered with. When Wright brought the package of ballots to the polls on the morning of the election, the other judges ascertained that it had been tam])ered with, and u[)on proceeding to count the ballots as required by the sec- tion, .sui»ra, they found that 1 of the official ballots had been abstracted, and that the package contained only 149 ballots. This fact was clearly established, as the fact that the package of ballots went into Wright's hands in good condition. Wright was not put on the stand to explain the mutilated condition of the package, or to state how it was that a ballot came to be missing therefrom while it was in his official pos- session . With respect to the other complaint, that the man Ferrall was not appointed judge, it is admitted tliat he was olTered, and was rejected by the otlier jii(l(j;es on the ground that Ferrall was suspected of hav- ing the missing ballot. Later one of tJie judges states that he saw Ferrall in the possession of this abstracted ballot. Ferrall denied it. You can look to tiie record and determine for yourselves on which side the weight of the evidence is found. At any rate, the judges did not appoint iiim, but ap])oint('d another man, as they had the right to {\o. There is no requirement of tiie Virginia law that when a judge has to be picked up on the ground he must be of any particular party affiliations. To make this an imperative require- ment might frecpiently cause an inconvenient delay in opening the polls. TJiere is a conflict as to wliether any other Republican than Ferrall was offered for appointment. Witnesses for the contestant claim that other Rejjublicans were there. Witnesses for the con- testee deny it. This is not material, but the committee can weigh the testimony sid:)mitte(l on both sides. Now, Mr. Chairman, I will take up the county of Henry. I stated a few moments ago that there was gone from this case that feature of it which embodies the claim that the judges of election were not appointed in conformity with law, and that the contestant did not have adecpiate minority representatioii at the various election precincts in tiie district. The evidence taken in tiie coimty of Henry is to the effect tiiat the members of tiie contestant's own party organization in tiiat county were advised witii by tiie electoral board witli respect to the appointment of minority judges, and expressed themselves as being satisfied with the appointments theretofore made. (See Record, p. 249.) Complaint is made as to a judge at one precinct in Henry, the precinct of Mayo. And, by the way, I wish to direct the attention of the committee to the fact that tiie judges who acted in tiie election of 1908 were not appointed with special refer- ence to that election, but were practically nearly all holdovers. The republican judge who was appointed for tiie precinct of Mayo failed to appear on election day. Hence an appointment had to be made by the other judges and the appointee was a life- iong Republican. (See Record, p. 234. Taylor's evidence.) There are no complaints as to the judges in the counties of Patrick, Car- roil, and Grayson, and the city of Danville. With respect to tiie county of Fi-anklin, tiiere are complaints made as to two judges, but I will n|[:)t at tiiis time take up tliese cases, because I wish to hasten on to tiie other matters in which you say you are more interested. But I affirm again, that with respect to the general claim that the contestant (iid not get minority :^8069— 10 5 66 PAES02srs vs. saundees. representation, it has been utterly refuted by the evidence to which I have directed the attention of the committee. The complaint as to the Frankhn judges is without merit. The contestant concludes his brief as follows: It is doubtful if a case could be presented showing generally such irregularities in the conduct of a congressional election as is presented by the record in this case. There was open and deliberate violation of the election laws of Virginia in forming so many of the election boards without permitting a Republican to be on the same. I invite the contestant to cite me any evidence in support of that allegation. Stop me now, and tell me where such evidence can be found in the record. Mr. Parsons. I will ask you this question, whether a single Re- publican was on any election board. Mr. Saunders. I will answer that question by asking you this one: Is there any law in the State of Virginia that requires that a Republican be appointed on the electoral boards ? I am talking about rights under the law. If the statute does not make this re- quirement you can argue, if you choose, that the law is not fair, but you can not maintain that it has been violated b}^ the failure to ap- point Republicans. Contestant and contestee alike stand on their legal rights, and if a law does not require a Republican to be appointed on the electoral board, no breach of the law has been committed by the failure to appoint one. I might as well complain that the deputy marshals and postmasters in my district are appointed from the Re- publican party when appointments are made. The Chairman. Do I understand you to take the position that the Republicans had been treated fairly in the selection of judges there ? Mr. Saunders. I do, in strict conformity with the law. The Chairman. And that the proper number of Republicans had been appointed. Mr. Saunders. Yes. I say that every right to which they were entitled under the law was given to them in this respect. The Chairman. I understand. But after the judges of election had been appointed, in the morning when they get together, if there is one absent, you claim in one place that a life-long Republican was appointed as judge of election, and you challenged the other side to point to a single place where they did not have representation. Mr. Saunders. Pardon me, Mr. Chairman, Mr. Parsons inter- rupted me, to ask if there was a member of an electoral board in the Fifth District that was a Republican, and I answered him by saying that, so far as I knew, I did not know of one. I might have asked him if he or his friends were giving the Democrats any appoint- ments in Virginia, but I did ask him to point me to the law which required that Republicans should be appointed on the electoral board. There may be Republicans on some of the boards, but if the law does not require them to be placed thereon, no breach of the law has been committed by the failure to appoint them. Mr. Thurston. If it will help the situation any, we are ready to admit that at most of the polling places there were "near" Republi- cans appointed. Mr. Saunders. You will have to admit something more than that. Why do you call the Republican appointees "near Republicans?" Why will you not 8a.j that they were straight-out Republicans ? PARSONS VS. SAUNDERS. 67 There is no complaint that the Rej)ublican appointees were "near Republicans," save in one or two instances whicn are fully discussed in contestee's analysis. I am glad that I have been asked this question about the electoral boards. How can contestant come before a committee sitting as judges anil claim that a law has been violated when he can not point out the provision of the law which he alleges has been broKen? What is the use of complaining that Republicans have not been appointed on electoral boards, if the law does not require that this should be done ? Mr. Nelson. Is there an}^ claim that an electoral board made up of one party has caused any loss of votes ? Mr. Saunders. I can not say as to the claim, but I do say there is not a particle of evidence in the record to support such allegations, if it is claimed that they have been anywhere made. Mr. Nelson. Because you would not claim that if the State of Virginia has such a iaw, and that it results in disfranchising the Republicans, this committee would not have the right to go beyond that ? Mr. Saunders. Not at all. As I said in the conclusion of my answer, after referring to that portion of contestant's notice, in which he admitted that he had not made a sufficient technical state- ment of his case, ' ' I have no desire to avail myself of technical objections to hinder the contestant from making out his case, pro- vided I am given the opportunity to reply." I said to the gentleman then, and I stand by that statement now: "Take off the lid in the fifth district of Virginia, and exliibit any irregularities, any con- spiracies, or any wrongdoing wdiich has affected you to your preju- dice. I will not invoke any technical law to keep you from doing this." If the contestant has been prejudiced in his election in any way of which the law will take cognizance, by the action of any election oliicial in the fifth district, or if any action was taken there wdiich has operated to wrongfully deprive this contestant of a single vote, and the loss can be traced to this action, so that he has lost a vote which he ought to have received, I am perfectly willing for the committee to take up the inquiry and do justice. I am not inter- posing any objection to any proper inquiry. But I do not conceive that there is any breach of law^ in failing to make appointments of a particular political complexion when the law does not require it to be done. There are a great many appointments made in this coun- try, and when there is no requirement that these appointees shall be of any particular political faith, I notice that in some States Repub- licans are appointed and in others Democrats, according to the party which happens to be in power. So much for that. I read further from contestant's brief: There was gross neglect and violation of duty on the part of the officers who were required to prepare and present for the use of the election boards poll-tax lists as required by law. There is not a jot or tittle of evidence in this case of any improper manipulation of these poll-tax lists, except in the counties of Carroll and Grayson, where there were large Republican majorities and Republican officials. Mr. Carrico said on yesterday, with respect to the red-ink emendations in Grayson County, that the law provided 68 PAESONS vs. SAUNDERS. that additions should be made to the hsts made by the courts, and that the clerk of the court should include in the list the parties who were entitled to be included by virtue of these court orders. If, Mr. Chairman, the evidence shows that there is a single addition, on the f)art of the clerk of a single court, by virtue of conformity to that aw, I have not a word of criticism to make as to such an addition. But there is no evidence of that sort in this case. In the county of Grayson the evidence is that on the night before election the treas- urer of that county was adding to these tax lists. It was not the clerk, but the treasurer, who made the additions, and the evidence through this record is that in this county the voters were continually going to the treasurer and getting him to add their names to the list. 1 make a formal objection to this practice, because the contestant says in his notice and brief that after the list is once made up, as required by law, thereafter the treasurer can not dot an "i" or cross a " t" in connection therewith. That contention on his part is well taken, and I concur with it. Mr. Carrico. If the emendations that you speak of in red ink were not put on there by order of the court, and the clerk certifying this record out to the different judges of election being conclusive evidence, why was it not shown that the court did not place them on it ? Mr. Saunders. It is not conclusive evidence, because the evidence is that the treasurer was doing it on the night before election, and at other times, and the clerk does not go on the stand to show that the additions to the list were made by virtue of court proceedings, nor does the treasurer go on the stand to show why he was working on the lists the night before the election. The additions made by the treasurer are illegal and were not binding on the judges of election. Mr. Carrico. I think we differ on that. Mr. Saunders. I will take up this matter in connection with the evidence taken in the county of Grayson. In the county of Carroll, it is shown by one of the Republican judges of election Mr. Bennet. Will it interrupt you for me to ask you a question? Mr. Saunders. Not at all. Mr. Bennet. Is it not a fact that in the statement of this case by the chairman he said that there was no charge of fraud that had been relied on, and I could not understand in the opening argument that there was any charge of fraud. Mr. KoRBLY. Moreover, that statement went unchallenged at the time. Mr. Saunders. I am simpl}^ calling the attention of the com- mittee to the fact that charges of fraud and conspiracy were most abundant in the notice, and that these charges are not urged, on the part of the contestant, for the simple reason that he has ascertained that he can not sustain them before this committee. This is the first time I have been able to bring public attention to the fact that these sweeping allegations of wrongdoing, as contained in the notice, are utterly unsupported by the evidence in the record. Mr. Bennet. I would like to ask you a question about the treasurer adding the names; it is rather interesting. Under your statute if an elector had gone before the circuit judge on five days' notice, as provided by your statute, and the judge had made an order directing PARSONS VS. SAUNDERS, 69 his name to })e put on the tax-paid hst, whose duty would it have been to have added his name? Mr. Saunders. The clerk's. Mr. Nelson. What is the purpose of giving notice to the treasurer? Mr. Saunders. That is a requirement of the law, and a just one. The treasurer makes up the list in the first instance, and he is cited to show why he failed to put on his list the voter who asserts in his petition to the court that he has been negligently overlooked. Mr. Tou Velle. While you are looking that up, perhaps you could answer this question: I understand that the contestant has aban- doned any proposition of fraud. Is your argument going to the effect of charging fraud on the other side? Mr. Saunders. Yes; abundant fraud on the other side, abundant evidence of bribery on the other side, abundant evidence of the improper use of money on the part of contestee's friends. (See pp. 18-19 et seq. of the analysis.) This evidence is in the record, uncontradicted and unchallenged. You asked me, Mr. Bennet, what is the law of Virginia in respect to sending out the tax list. If you will look at section 38 of the constitution of Virginia, found on pages 9 and 10 of the analysis, you will find the answer to your question. I think it is well enough for the laws of Virginia to be cited in connection with these queries. To some extent, as a matter of course, the questions of counsel and of the committee tend to hinder me from making a continuous argument, but I do not object to interruptions, for the reason that they enable me to get before the committee in the present connection some references that other- wise would have to be made at a later period of the argument. The committee will note the following provision of section 38, relative to sending out the tax lists: The clerk shall deliver, or cause to be delivered, with the poll books, at a reason- able time before the election, to one of the judges of election of each precinct of his county or city a like certified copy of the list, which shall be conclusive evidence of the facts therein stated for the purpose of voting. The clerk shall also, within sixty days after the filing of the list by the treasurer, forward a certified copy thereof, with such corrections as may have been made by order of the court or judge. I think that citation from section 38 affords the answer to Mr. Bennet's question. Mr. Bennet. No; it is not a complete answer. Mr. Saunders. What is the additional answer you want? Mr. Bennet. It says: The clerk shall deliver, or cause to be delivered, with the poll books, at a reasonable time before the election, to one of the judges of election of each precinct of his county or city a like certified copy of the list, which shall be conclusive evidence of the facts therein stated for the purpose of voting. The clerk shall also, within sixty days after the filing of the list by the treasurer, forward a certified copy thereof, with such correc- tions as may have been made by order of the court or judge, to the auditor of public accounts, who shall charge the amount of the poll taxes stated therein to such treasurer unless previously accounted for. Mr. Saunders. The last certified copy goes to tlie auditor of pub- lic accounts. Thus a double check is afforded on these court addi- tions to the tax list. Mr. Bennet. That does not say specifically who has to make the corrections in the list. That simply says that the clerk shall perform a ministerial dutv — that is, that he shall forward a list which has been 70 PAESONS VS. SAUNDERS. corrected by order of the judges — but the list starts in the first instance from the treasurer, does it not ? Mr. Saunders. Yes. Mr. Bennet. Is there anything in your statute which says it is or is not the duty of the treasurer to carry out the order of the circuit judge? Mr. Saunders. The contestant in his brief and in his notice asserts, and I agree with him, that after the treasurer has once put his list in the hands of the clerk he can not touch it thereafter. Contestant asserts that himself. I agree to it as a proposition of law, so why discuss it? (See Record, p. 11, top of page. Contestant's first brief, p. 26.) ]\lr. Nelson. If the court decides that they should properly go on there, does he not put them on? Mr. Saunders. No; the clerk puts them on. The treasurer is not an officer of the court. The clerk makes the additions. Mr. KoRBLY. When a vote is challenged, what steps are taken at the polls ? Does the man offering to vote file an affidavit setting up his right to vote? Mr. Saunders. There is no particular form in that respect. When a vote is challenged, the voter can be sworn, if it is desired for him to make a statement under oath as to the matters called in question. Other evidence, oral or documentary, can be taken in addition, if desired by any party to the challenge. ^ir. Bennet. If I am interrupting you too much, stop me. Mr. Saunders. No; as I said, these interruptions enable me to get these different sections of the Virginia law before the committee. Then I can go on without having to refer to them. Now, look at the middle of page 10 of the Analysis: The original list returned by the treasurer shall be filed and preserved by the clerk among the public records of his office for at least five years after receiving the same. Within thirty days after the list has been so posted, any person who shall have paid his capitation tax, but whose name has been omitted from the certified list, may, after five days' notice in writing to the treasurer, apply to the circuit court of his county or corporation court of his city or to the judge thereof in vacation, to have the same corrected and his name entered thereon, which application the court or judge shall promptly hear and decide. You will note that the law requires the treasurer to make a list. That list is sent to the clerk and later is posted. It is posted at all the precincts in the county and the wards m a city. There are no laws m relation to election matters that are simpler than the present laws of the State of Virginia, and none more effective, to afford a man a chance to be heard or an opportunity to correct a mistake. Mr. Bennet. Then your contention is that, although section 38 requires the notice to be given to the treasurer, the order of the judge is directed to the clerk ? Mr. Saunders. Of course. It is a court proceeding, absolutely, just as you will find, under our laws, many instances with respect to applications to the court for relief from errors in assessment in which the applicant gives notice to the Commonwealth's attorney and to the treasurer of the county, but the order made is the order of the court. This order is certified by the clerk, who is an officer of the court, and entry of the same is made in the court records. PAESONS VS. SAUNDERS. 71 Mr. Nelson. Wlien a clerk has that permission from the judge, he brings that Mr. Saunders. No; you see the apphcant whose petition is granted is added to the treasurer's hst by virtue of the order of the court. Mr. Nelson. On the poll-tax list ? Mr. Saunders. Yes. He goes on the list. He is added to the poll- tax list, as contemplated by section 38, when a man conforms to its requirements. Mr. Thurston. It would be a remarkable thing, Mr. Saunders, if the treasurer, who is the one defined in that proceeding, was not the party to be authorized by the court to make the correction. Mr. Saunders. He is not the authorized party, nor could he be such, since the list which is to be amended is no longer in his possession but is in the custody of the clerk of the court. Mr. Thurston. There is nobody else before the court. Mr. Saunders. You are arguing a proposition, Senator, that is contrary to the position taken by your client, but I will say in this connection that the analogy is precisely that of a man who gives his adversary notice to obtain judgment. When the judgment is ob- tained it is the judgment of the court, and it is entered up and certified by the clerk who is the hand of the court. Mr. Thurston. I am not insisting this is material to the case at all, but I am rather interested in this school of discussion. Mr. Saunders. The treasurer is cited to appear because he has made the list, and he is required to show cause why the applicant's petition to go on the list should not be granted. I can give you a sufficient reason for bringing in the treasurer as a party to the application. The taxpayer who has been omitted from the list alleges in his petition that this omission is due to the negli- gence of the treasurer. Hence when his notice brings the treasurer before the court, tlie latter in substance says to this officer: "Why did you not put this man on the list ? He asserts that he is qualified. What have you to say for yourself ? ' ' Then the treasurer must fur- nish his explanation. If the application is allowed the voter is ordered to be placed on the list, which, as I have stated, is in the custody of the clerk and not of tlie treasurer. Moreover, this list in the amended form is required to be certified to the auditor of the com- monwealth, as a permanent record in the archives of the State. This, you will note, is required to be done by the clerk of the court (see sec. 38). The treasurer has nothing further to do with the list after he forwards it to the clerk, and, as contestant very properly observes in his notice and brief, an}^ subsequent addition to the list on the part of the treasurer is a violation of law. Mr. Bennet. Yes; but the tax pay Hst, that is in the custody, by that time, of the judges of election Mr. Saunders. Up to the time under discussion the list has not reached the judges. Mr. Bennet. When does it reach them ? Mr. Saunders. After the additions providefl for by law have been made. Mr. Bennet. Let us see about that. There is a list that goes to some one thirty days before the election; to whom does that list go? Mr. Saunders. That is the list we are talking about. -j^ 72 PAESONS VS. SAUNDERS. Mr. Bennet. And that is posted ? Mr. Saunders. No; the hst that is posted is the Hst that is sent by the treasurer to the clerk of court at least five months before election. (Constitution, sec. 38.) ^ Mr. Bennet. You do not mean to say that that hst is posted for six months ? Mr. Saunders. Within ten days of the receipt of that hst by the clerk he places a sufficient number of copies of the same in the hands of the sheriff or sergeant for posting at the front door of the several polling places in the county or city, as the case may be. .Mr. Nelson. That is simply to give warning? Mr. Saunders. Yes. • Mr. Bennet. Is that posted six months ? Mr. Saunders. No; not so much as that. The list is lodged with the clerk at least five months before the election, and copies of same are forthwith posted. There is no requirement that they shall be taken down. Hence tliey may stay posted indefinitely. Mr. Bennet. And it is that list which the voter has to consult to show if he is on there ? Mr Saunders. That is the list. He is not confined to consulting the list at his precinct, but it is generally the most convenient one. Mr. Bennet. But, as a result of the order of the judge, that par- ticular list does not change ? Mr. Saunders. The list that is i)osted at the various precincts may be changed by order of court. The changes are made in the way of corrections in the original list, which was filed with the clerk by the treasurer, pursuant to law. The lists which are posted are copies of this original. Mr. Bennet. Wliere is the original ? Mr. Saunders. In the custody of the clerk of the court. Mr. Bennet. At the county seat ? Mr. Saunders. Yes; at the county seat, at the court-house. The Chairman. The treasurer makes up the list in the first place, does he not ? Mr. Saunders. In the first instance, yes. The Chairman. A large number of persons may be denied a place on the list ? Mr. Saunders. Yes; that may happen. The Chairman. And they go to the court? Mr. Saunders. Yes; if they desire to do so. The Chairman. And the court issues an order. To whom is that order issue'd ? Mr. Saunders. To the clerk. The Chairman. Or to the treasurer? Mr. Saunders. To the clerk. The Chairman. Suppose there is no compliance with that order? Mr. Saunders. How do you mean compliance with the order? The Chairman. By putting the names on the list. Mr. Saunders. Well, that suggests a very interesting situation. According to the contention of these gentlemen, those voters could not vote, by reason of the fact that they were not on the list, though this failure was due to official negligence, and not to any fault of theirs. The Chairman. That is not an answer to my question. PARSONS VS. SAUiSIOEKS. 73 Mr. Saunders. I think it is, unless you have soniethiuii; else in mind. The Chairman. Suppose the clerk and treasurer both decline to put the names on the list after the judj^e decides they should a:o ? Mr. Saunders. Very well. The Chairman. If you wanted to o;et tiiem on, what could you do? Mr. Saunders. Simply this, the voter would apply to the court for a mandamus to compel the clerk to perform the ministerial act of addino; to the list the names which the order of the court had theretofore ordered him to add. The Chairman. You would not make the treasurei- a party to that ? Mr. Saunders. No; he is out of it. He was brout!i;ht in first, as the Commonwealth's attorney is brought in, when you seek to correct an erroneous assessment. He is merely required to show cause why the applicant's request should not be g-ranted. Mr. KoRBLY. Would not the clerk be in contempt if he refused to carry out the order of the court? Mr. Saunders. Certainly, but 1 was answering the chairman's question. Of course, if the clerk failed to carry out the order of the court he could be punished for contempt. But, apart from that, a mandamus would lie to compel him to perform the ministerial act of adding these names. There is no trouble at all about the legal remedies. But the chairman's question is a very pertinent one when considered in connection with contestant's argument that presence on the list is a prerequisite to voting. I thought he had in mind the status of a man who had obtained an order from the court directing his name to be placed on the list but who had subsequently been omitted by the negligence of the clerk. In such a case, according to the contention of contestant, though he had taken all the steps required by law, he could not vote. According to my contention he could vote, because he could prove that he had paid his taxes, or that the court had ordered him to be placed on the list. That is one of the illustiations I expect to use when I come to that portion of my argument, in which I shall undertake to show to the committee that the constitution does not reciuire a voter's name on the tax list as a prerequisite to voting. The Chairman. Suppose the court had decided that they were not entitled to go on the list; that if they apjieared at the polling place Mr. Saunders. No; that would be a case where they had been parties to a court proceeding, and of course the findings of the court would stop them from maintaining any contention in conflict with those findings. Mr. Bennet. Carrying that just a little further, suj)|)ose a voter in one of these precincts — we will take Mount Zion. Mr. Saunders. That was not much of a Zion for me, though. [Laughter.] Mr. Bennet. Suppose a voter in that precinct had gone to the circuit judge and the circuit judge had made an order in vacation refusing to add his name to the list. While that is a matter of public record, in a strict sense, it was not a matter of wide publicity, possibly. Supposing a voter had gone with his three tax receipts to the judges of election in Mount Zion on election dav anil had sworn he had 74 PAESONS VS. SAUNDERS. paid the full three years' taxes in time. You say that they ought, despite the fact of the order of the court, take his vote ? Mr. Saunders. No; I just answered the chairman to the effect that under the circumstances indicated the voter would have no right to do anything of the sort. Mr. Bennet. He would have no right, but the judges of election would have no knowledge. Mr. Saunders. If he did such a thing as that his vote would be illegal, and if it was cast for the contestee and that fact could be proven of course this committee would eliminate it, and if cast for the con- testant upon proof of that fact you would deduct it from the con- testant's vote. Of course that would be a fraudulent vote, just as a man's vote would be illegal if without the payment of his taxes his name had been fraudulently included in the tax list, whether by the clerk or the treasurer. I want to show you in this connection- Mr. Howell. There is another case that comes to my mind, and that is the case of a voter who had not applied to a court to have his name put on the list, but on the day of election he presents proof to the judges of election of his right to vote by reason of having been a poll-tax payer for three years. Would you contend he had a right to vote? Mr. Saunders. Absolutely; because the constitution says that when a man shall have paid his taxes for three years prior to the year in which he offers to vote, and within the prescribed time, he is at once, ipso facto, by virtue of that payment, clothed with the right of suffrage. Certainly, I contend that such a voter is entitled to vote. Mr. Carrico. I see you want to go strictly by the law, and the law before 1908 was not mandatory that the treasurer should date the day on which the poll tax was received. Suppose a voter three days previous to election would pay up a poll tax assessable against him, and then come in and present his tax receipts and offer to qualify ? Mr. Saunders. In the first place, if that voter swore that he had paid his taxes six months prior to the election, when as a matter of fact he had not done so, he would be guilty of perjury. His vote, under such circumstances, would simply be an illegal vote. Mr. Carrico. Suppose, as the record shows in a great many instances, he does come in, and state that he has paid his poll tax ? Mr. Saunders. I do not knov/ about so many instances, but if, as a matter of fact, the voter satisfies the judges that he has paid the required taxes, he is entitled to vote. The payment of the prescribed taxes within the prescribed time is the prerequisite of the constitu- tion. There is no other prerequisite with which I am acquainted, so far as the taxes are concerned. Mr. Howell. I would like to have this cleared up in my mind. It seems to me that under the laws of Virginia these poll-tax lists are regarded as sacred, as not to be interfered with, unless by an adjudi- cation of the courts. Mr. Saunders. Well, they can not be added to save by order of court, but that does not mean, that the presence of a voter's name thereon is a prerequisite to the right to vote. Mr. Howell. Under the answer to my last question you really vest the judges of election with the authority which your law vests in the court. PAKSONS VS. SAUNDERS. 75 Mr. Saunders. Not a bit. The action of the judges of elections does not add anything to the tax hst, which is prepared by the treas- urer from liis books. But your question suggests to my mind another query, just as tlie question that was asked by the chairman suggested an interesting query in that connection. Take the case of a man who has actually paid his taxes in time and has his tax tickets in his j)Ocket, ought he to be excluded on election day if he has been negli- gently omitted from the list ? Mr. Howell. Why did he not go according to law? Mr. Saunders. He is going according to law when he proves to the satisfaction of the judges of election that he has paid his taxes. Mr. Nelson. He has a choice. Mr. Saunders. You took the word out of my mouth. He has a choice in that respect. I will show you that it is well for a voter to be on the list for purposes of convenience. These considerations of convenience furnish a sufficient justification for his making the appli- cation. But at the time the list is posted a voter may be out of the county. Frequently voters are. Frequently it happens that a man hasn't the opportunity to take these steps within the thirty days f)rescribed. Frequently his business is such that he does not see the ist, and if he has a choice he ought not by reason of failure to exercise one form of choice be debarred from his constitutional right of suf- frage. The other road to the polls ought to be open to him. The Chairman. What would be the sense of him going to court and hiring a lawyer ? Mr. Saunders. He does not need to hire a lawyer. The Chairman. What would be the sense of his going to court if all he had to do was to go to the judges on the day of election? Mr. Saunders. I will tell you why. I contemplated taking that up later on in my argument. The answer to that is this: The list, by virtue of the constitution, and by virtue of the statute laws of Vir- ginia, which simply follow the constitution, is made conclusive evi- dence of the facts it contains for the purposes of voting. So that when a man who is on the list comes to the election and some question about the payment of his taxes, all that he needs to do is to say to the judges: ''Look at the list. I may be improperly on there, but, so far as you are concerned, if I am there, I have a right to vote." Other- wise, when he comes to vote and is challenged, he may have trouble in proving his payments. He may not have his tax tickets with him; the treasurer to whom he paid them may not be available; he may not be in a position to satisfy the judges that he has discharged the constitutional prerequisite. Therefore it is to his interest, if oppor- tunity offers, for him to get on this list. The Chairman. Would he not have to present the same evidence to the court that he would to the judges of election? Mr. Saunders. Exactl}". The Chairman. If he had the evidence to present to the court. Mr. Saunders. He may not be in a position to go to the court. That is the question I am presenting. Many people are not in this position. Many are traveling men, and frequently it is not con- venient for them to come back, maybe a great distance, to go into the court. Frequently the judge is in another county. Of course, a man can come back, but it may be inconvenient for him to do so. There is no technical difficulty about making the application. Is it 76 PARSONS VS. SAUNDERS. a practical difficulty, growing out of the fact that the voters are, in many instances, not apprised of the situation in time to avail them- selves of the opportunity afforded by the statute to get on the tax list- Mr. Thurston. If it does not interfere, that arises in every case of a registration law. Hundreds of people are out of the State during the time in which they might register. Does the fact that they are out of the State prevent their right of suffrage ? Mr. Nelson. On that point, Senator, as I understand Judge Saunders's contention, the matter of the poll-tax list is like the regis- tration law in my State. You can register so as to avoid the difficulty of swearing in at an election, but you can come in, and if you can satisfy the election judges that you are a qualified elector by filing an affidavit, with two corroborating affidavits, you have a right to vote. Mr. Thurston. Most of the States have a provision whereby you can have a right to swear your vote in. In my State you can secure a certificate from the county clerk, or make a due proof there that you were absent from the State, but if you were not expressly author- ized by statute you could not do it. It has been held over and over again that a man, in order to avail himself of the right to vote, must comply with the registration law, and where there is no provision by which he can swear his vote in, unless he has been there and regis- tered, he could not vote at that election. IVir. Saunders. That is entirely true. I do not gainsay that proposition of law, but the question of the gentleman suggests an interesting situation in that connection and I am going to take it up while I have it in mind. Mr. Carrico. Suppose this question should arise. You understand our statute provides a man may apply within thirty days to be placed on this list ? Mr. Saunders. Yes. Mr. Carrico. Suppose he applies to the court forty days after the poll-tax list is prepared, and the court turns him down, would he then be a legal voter? Mr. Saunders. Certainly he would be. The court would be with- out jurisdiction in the case supposed, and its failure to afford a hear- ing, or its action in refusing a hearing under the circumstances indicated, would not hinder the voter from asserting other rights elsewhere. What the Senator says with respect to registration is absolutely true, and yet it is true in that connection that if a man performs on his part what is necessary to be done for the purposes of registration, and there is any failure on the part of the officer to Eroperly record him, that man, on proof of the facts supposed, can e admitted to vote by the judges of election. The Chairman. That would have to be under the law of the State. Mr. Saunders. Certainly; I am claiming to proceed under the law of my State. But it is a general principle of law that when a voter does what the law requires of liim, and the failure to perform thereafter is the failure of some official, then that failure does not affect the voter. That is a general proposition, in respect to the right to vote, which is universal, as I understand, throughout the United States. The Chairman. Under your state law he is required, in the first place, to go to the court. Now, he has not gone to the court; he has PARSONS VS. SAUNDERS. 77 failed to comply with the recjuiiement. Where is there any other lequirement different fiom that laid down by the law? Mr. Saunders. To go into that would require me to take up the entire question that I expect to discuss at a later stage of my argu- ment. I maintain the proposition that our constitution does not require a voter who has paid his taxes to go to the court to get on the list under penalty of losing his vote. The Chairman. All he has to do is to go to the judges of election. Mr. Saunders. If he prefers to take that course. He has his choice between getting on the list and proving his case before the judges of election. The C^hairivian. The only point 1 am anxious about there is, 1 want you to point out to the committee whether there is any remedy for the voter in your State if he does not comply. Mr. Saunders. There is no remedy unless he is permitted on elec- tion day to go to the judges of election and say in substance: "I demand to be allowed to vote on j)i'oof of payment of my taxes. The constitution gives me a right to vote upon payment of the pre- scribed taxes in the prescribed time. I am prepared to show that I have discharged the constitutional prerequisites, and as such am a legal voter." The Chairman. Tlicn, is tliere any necessity for a list at all? Mr. Saunders. The necessity for the list has been pointed out in answer to the question of' the gentleman from Wisconsin. The list is a matter of convenience for the voter, because the law says, once on that list, even if you have not paid your taxes, you are entitled to vote To show you how far this principle goes, I will call your attention to the fact that in the county of Carroll the treasurer put on the list a man wlio was on the delinquent list, as is established by the evidence. Yet that man, although he had no moral right to vote, walked up and voted by virtue of this tax list, merely because it was conclusive evidence that he had paid his taxes, for the purposes of voting. Mr. Bennet. Was he challenged ? Mr. Saunders. No; he was not challenged, })ut the failure to chal- lenge him made no difference. The Chairman. Would it not have made a difference? Suppose he had presented himself to vote, and you challenged him? Mr. Saunders. In the case I speak of, the voter was on the list. The Chairman. Is that list conclusive? Mr. Saunders. Absolutely, of its contents, for the purposes of voting. The Chairman. You could not introduce any evidence? Mr. Saunders. You can not introduce any evidence to contradict its contents. The constitution makes the list, so far as any contest of same is concerned, absolutely conclusive evidence of the facts therein stated for the purposes of voting. Hence, if a man appears on the list for three years as having paid his taxes, though as a matter of fact, he has never paid a dollar of them, he is entitled to vote. The Chairman. Suppose you challenged him because he had not paid the taxes, and you came to Congress with a contest; what would Congress do ? Mr. Saunders. When you came to Congress with a contest, the committee would go back of the list. They would say, in substance, 78 PAESONS VS. SAUNDERS. to the illegal voter: "While you were able to force your vote upon the judges, by virtue of the fact that the evidence which you offered was conclusive for the purposes of voting, yet, as a matter of fact, you were an illegal voter, because you had never paid your taxes." Mr. Bennet. What is the number of that constitutional section ? Mr. Saunders. Thirty-eight. It is on pages 9 and 10. It begins on page 9 of the analysis. Mr. Tou Velle. Have they any rule or class of evidence that is necessary to be furnished to these judges upon which they base their decision as to qualifications ? Mr. Saunders. None whatever, except this list, and that on one point) alone, and the registration books. Mr. Tou Velle. As to the others, those who are not on this Ust ? Mr. Saunders. It devolves upon them to show that they have per- formed the constitutional prerequisite, which is the payment of taxes for three years prior to the year in which they offer to vote, at least six months prior to the election. Mr. Carrico. Can you cite any law as to that ? Mr. Saunders. I stand upon the constitution. In addition, I will cite the decisions of' several state courts. Mr. Bennet. Before you leave that, m order to get it straight, you said yesterday that I stated the contention between the two sides accurately. I will state it for the benefit of Mr. Tou Velle, because he was not here at that time. The contest tot contends that the con- stitutional provision in relation to the posting of the list and the put- ting on of additional names by the circuit judge, and the five days' notice to the treasurer, is conclusive, and that the list so made up is the only evidence of tax-paid voters of that precinct that can be con- sidered. Your contention is that the constitution providing that an otherwise duly qualified elector who has paid his poll taxes for the three preceding years is qualified to vote, that the proof can be made aliunde to the judges of election on election day, despite Mr. Saunders (interrupting). The fact that he is not on the list? Mr. Bennet. Yes. Mr, Saunders. Yes, sir; that is correct. Mr. KoRBLY. In other words, the contestant contends that the list is also a prerequisite to vote, whereas the contestee contends that the payment of taxes is the sole prerequisite ? Mr. Saunders. Yes, that is true. Mr. Carrico. I beg your pardon. Mr. Saunders. Well, I will state the proposition, and then you can see if you differ with me. Mr. Chairman, the contestant contends that you must pay your taxes, and in addition contends you must be on the list, so he insists that there is a double prerequisite. I con- tend that you must pay your taxes as required by law, and that the list is merely one means of showing that you have performed the con- stitutional prerequisite, not that the list is a prerequisite, but is an evidence of the fact you have complied with the requirements of the constitution. It is an evidence or payment, but not the exclusive and only evidence. Mr. Thurston. Our contention is very simple and very clear. We do not want to be misunderstood about it. Our contention is that where the law, the constitution and the law, have provided for a reg- istered list of tax-paid voters, has provided that that list shall be made PARSONS VS. SAUNDEKS. 79 public in a manner j)ointed out by the statute, thereby givina,- notice to everybody who is interested, the statute and the constitution then have given a remedy by which his name can be ])laced upon that list if he is not there before election day; that that is his sole remedy; that does not confer on any other body or tribunal the power to put him on that list, and that that list itself, made up after a party has had his remedy given by the statute, is conclusive, both as to the right of the men on there to vote and of the fact that nobody else on there had the right to vote. Mr. KoRBLY. In other words, presence on that list is a prerequisite to the right to vote ? Mr. Saunders. That is tlu>ir contention, exactly as I have stated it. My own contention is that pajnnent of taxes in the prescribed time is the only prerecpiisite to the right to vote in Virginia, providing, of course, always, that you are duly registered. Mr. Carrico. One more thing. Judge, before you pass on from that. In section 38 of the constitution we claim that there the constitution provided what evidence should be received as to the fact that they liad paid their poll tax. Mr. Saunders. That I deny, so far as it is contended that the list is the exclusive evitlence of payment. Mr. Carrico. It also goes on to say that the legislature may pre- scribe any other form of evidence. It says : ' ' Further evidence of the prepayment of the capitation taxes required by this constitution as a prerequisite to the right to register and vote ma}" be prescribed by vote." We claim that no further evidence has been prescribed. Mr. Saunders. There is no difference of understanding between us as to your contention. I know your contention exactly. In addition to that, and merely as another illustration of their proposition, con- testant claims that this list is not only conclusive, inclusively, but con- clusive, exclusively. Mr. Carrico. That is right. Mr. Saunders. I will discuss that proposition later. Instead of holding that the list, as I said before, is a prerequisite, I regard it merely as one of the evidences by which a man can prove that he has discharged the constitutional prerequisite. The Chairman. Has this question ever been before the courts in your State ? Mr. Saunders. It has been before the lower courts. The Chairman. What do they say about it? Mr. Saunders. I will submit in this connection and on this precise proposition the conclusion of two visi finus courts, which hold that presence on the tax list is not required as a prerequisite to voting. Mr, Carrico. The court in our district holds differently. >Ir. Saunders. I do not know anything about the attitude of the court in your district. You ought to have that opinion here. The opinions which I will file are not ex parte opinions, but are opinions delivered in election contests in which the precise proposition raised in this case was presented for decision. There is no need for these opinions, in my judgment, for a careful perusal of the Constitution will satisfy the committee that my contention as to its meaning is correct. Still I will file them. Mr. Parsons. Was that since the statute was enacted ? 80 PARSONS VS. SAUNDERS. Mr. Saunders. The statute is the Constitution, and the Constitu- tion is the statute. The statute can not effect any change in the Constitution. Mr. Parsons. There has been no election case since the enactment. Mr. Saunders. That makes me out a falsifier, I am afraid. Mr. Parsons. Oh, I did not mean to be offensive. Mr. Saunders. Of course, I merely said that in jest. Mr. Carrico. It has never been before the court of appeals. Mr. Saunders. No; that is not the question that was asked me. Mr. Nelson. I want to ask you what I asked Mr. Carrico yester- day. I want to get at the practice. Do you know what the practice has been with reference to this '^ Mr. Saunders. He answered that. Some of the judges of elec- tion hold one way and some the other. Some of the judges. Demo- crats and Republicans, hold that the list is conclusive, and if you are not on the list you can not vote. At some of the precincts in Grayson the judges ruled that the list was exckisive evidence, while the judges at other precincts ruled that it was not essential to be on the list and that if the voter's taxes had been paid, as prescribed, he could vote. So far as I am aware, the general rule in Virginia is that if a man has paid his taxes in time he is permitted to vote. Mr. Nelson. In other words, it is an unsettled question? Mr. Saunders. Yes. Mr. Carrico. You are speaking of judges of election? Mr. Saunders. Yes. Mr. Carrico. There are no Republican judges, of course? Mr. Saunders. I suppose it is another case of wrongdoing, that we have elected Democratic judges. [Laughter.] Mr. Carrico. The judge of our court holds one way and the judges you speak of hold differently. Mr. Saunders. I do not know; has it ever been before him? Mr. Carrico. Yes. The Chairman. I would like to have decisions cited. Mr. Saunders. I will cite them. All this is a digression from the chain of my argument. To come back to the section of contestant's brief, from wliicJi I was quoting, I will read the following: There was gross neglect and violation of duty on the part of those officers who were required to prepare and present for the use of the election boards the poll-tax lists as required by law. I challenge these gentlemen, in that connection, to produce the evidence of any gross neglect or violation of law with reference to the preparation of this poll-tax list on the part of any Democratic officials. I will show the committee by the testimony of a Repub- lican judge in Carroll County — a strong Republican county, by the way — that the judges at one precinct had a list for use on election day, with pencil emendations thereon, that were not present on the certi- fied list of the treasurer when that certified list was exhibited to the witness on the stand. That is the testimony of a Republican. Mr. KoRBLY. How many names, do you remember? Mr. Saunders. Quite a number of them. One of the names he testified was on the back of the list, written there in pencil. Mr. Carrico. That was a list certified out by the clerk of the court as a voting list. PARSONS VS. SAUNDERS. 81 Mr. Saunders. No, sir; he testified to this effect; that the list they used on election day had pencil emendations in the columns and he did not know where they came from ; also pencil emendations on the back of the list. He was confronted with a certified list from the clerk of that county, and he said, "This is not the list I had on election day." The question is, where did those pencil additions come from ^ The Chairman. What witness was that? Mr. Saunders. That was Mr. Byrd, at Sulphur Springs. (See Rec, Byrd, pp. 517-18.) Mr. Nelson. I suggest the judge follow his argument. Mr. Saunders. I do not object at all to questions. The Chairman. What witness? Mr. Saunders. I will give you the witness; I have the reference here. Look on page 518 of the testimony of Mr. Byrd, Republican judge, pages 517 and 518. In the middle of page 517 you will see this : Q. I here hand you a certified tax list containing the names of the electors certified by the treasurer of Carroll County to the clerk containing the names of the electors who had paid their taxes for three years prior to the 3d day of May, 1908, and were entitled to vote. Examine that list and see if you find on there the name of H. M. Jones. — A. Well, I looked for it a while ago, but I don't find it. I don't know, but I think I ought to have the list that we used over there, because there was some names wrote on that list. My reply is that it wasn't on this list. Q. Were the names written on it? — A. Yes, sir; in a pencil. Further, in that connection, you will see that on the back of that list was a name added in pencil. That is a most extraordinary way, I will say, for a clerk of a court to correct a record pursuant to an order of court. The clerk does not go on the stand to prove that these emendations or additions were court additions proper to be made by him. Mr. Carrico. Let me ask you this question: The clerk certifies those lists out and they go out with the ballots for the judges to be guided by in the voting at that precinct, although not as the cer- tified list. Mr. Saunders. Yes, they go out, but possibly in that county, as in the county of Grayson, the treasurer on the night before, was figuring over the lists, and adding names in pencil, or in red ink. Mr. Nelson. I understood from your contention that the treas- urer's list is the original of the poll-tax list, and then it goes to the clerk of the court ? Mr. Saunders. Yes. Mr. Nelson. How could the treasurer have put those names on after the clerk had it ? Mr. Saltnders. Only improperly. Mr. Nelson. How does he get the list? Mr. Saunders. He has no authority whatever to get the list. Mr. Nelson. I understood he had nothing more to do with it. Mr. Saunders. Officially, certainly not. On page 518, you will find this testimony: Q. Examine said tax list and see if you find the name of W. M. Vaughan thereon. — A. No, sir; I don't think it is here. I will see. No, sir; it is not on here. Q. Any of these men that you have mentioned written on the back of the list? — A. I could not tell you where they were written; all through the book. Some were written on the back of the book. 38069—10 6 82 PARSONS vs. SAUNDERS. Do you suppose that any clerk bearing in mind the regularity that goes with court proceedings would have added these names in this slipshod and extraordinary manner? If these names were added pursuant to court orders, the fact could have been easily established. Bo you think the names would have been added to the list in any such irregular manner as that by a clerk of court — some in pencil, ;and some written on the back of the document ? Mr. Nelson. Your objection is that they were in red ink, in pencil, and on the back ? Mr. Saunders. My contention is that these were not the additions authorized by law, whether in pencil or red ink. Mr. Nelson. What are the facts that lead you to make that state- ment ? Mr. Saunders. The facts are the statements of the witness Byrd, from whose evidence I am reading. This man is a Republican, and was a judge of election at Sulphur Springs, where I received 4 votes. He was shown a certified list from the clerk that did not contain these pencil additions. I submit that the proof as to these addi- tions puts the whole list at this precinct under suspicion, and suggests that in other precincts the lists nad been improperly padded . Mr. Carrico. Let me ask you this: In the county of Carroll, the clerk was placed on the witness stand by the contestee, and the orders of the court are a matter of record, are they not ? Mr. Saunders. Certainly. Mr. Carrico. And would it not have been easy to have shown that these parties were not placed on there by the court — by the clerk? Mr. Saunders. When the clerk was put on the stand, don't you think the contestant ought to have been the one to furnish his own evidence and to clear up his own case, when that case was under suspicion? There is more of that deposition. I expect to touch on that later. Mr. Tou Velle. The clerk sent out a certified copy of the names and the additions ? Mr. Saunders. Yes. Mr. .Tou Velle. And you handed to the clerk a certified copy and he identified that ? Mr. Saunders. No; the judge of election, the Yerj judge who had used the list for purposes of voting at this precinct v/as presented with a certified list, and he stated tliat these pencil additions were not on the list shown him but were on the list he used at the election. Mr. Bennet. As I understand, this clerk of Carroll County was ■called as a witness and neither side asked him any questions about these emendations or additions ? Mr. Saunders. So far as I recollect, they did not; that is true, but, •as I stated a moment ago, when that list was under suspicion, by reason of the evidence in this record, to which I have called your attention, was it not the duty of the contestant to undertake to remove these injurious suspicions and to show ttiat these additions were regular and made by order of court ? Mr. Nelson. I want to get at what you base this on. This judge of election testified, as you claim Mr. Saunders. Here it is. Mr. Nelson (continuing). That when he first saw the list it con- tained a certain number of names, and afterwards he claimed they were not the same names ; that there had been names added ? PAKSONS VS. SAUNDERS. 83 Mr. Saunders. Yes; these names were not on the Hst that was handed to him when on the stand. Mr. Bennet. Oh, no. As I understand it, the hst that was shown him on the day he testified is not the hst he used at aU; it is just a certified copy. Mr. Saunders. That is what I say. It was a certified hst, and the other hst was a certified hst, and the two ought to be identical unless there had been some court additions to the treasurer's list. Mr. Nelson. That is what I had in mind. Mr. Bennet. But his contention is that the certified list he had on election day was different. Mr. Saunders. It was different; he swears it is different. Mr. Bennet. There is no contention that the two lists were the same lists at all. Mr. Saunders. Yes; the lists ought to have been the same, unless there were some court additions. They both purported to be copies of the treasurer's lists. Mr. Bennet. But not physically the same papers'? Mr. Saunders. Oh, no. Mr. KoRBLY. In other words, the one that had the pencil emenda- tions on it was not before the witness ? Mr. Saunders. No. In connection with the Grayson County you will find on page 323 — I suppose the gentlemen object to this evidence as hearsay. Mr. Bennet. Before you go into that, what should have become of the certified copy of the tax-paid list that the judges of election had ? Mr. Saunders. I do not know of any law providing for its preservation. Mr. Bennet. It just disappeared after election day. Mr. Saunders. What I mean to say is that there is no provision for keeping that list. The original record is in the clerk's office. A man ought to be able to go to the clerk's office and at any time secure a copy which would be exactly the same list as the one used by the judges, because there can be no proper list, save the clerk's copy of the treasurer's list, with such additions as have been ordered by court. Mr. Bennet. We have a provision in our law that all such lists of voters that are sent out to the election officers, must be returned to the county clerk. I thought maybe you had something of that kind. Mr. Carri^o. No, sir; they are never returned. Mr. Saunders. The evidence I am now reading may be objected to as hearsay. Contestant objects to it on that ground, but the circum- stances all tend to show that it correctly gives the facts. You will find on page 323 of the record that a man named Cornett had a con- versation with a man named Sells, a day or two prior to the election. Sells, who was a Republican, and a supporter of contestant, made this statement to Cornett: Andy Sells told me he came to town with Bob Catron and saw Basic, the treas- urer, put Bob Catron's name on the list; that he either put down John W. Hall's, and Steve Fielder's names on the list, or put some of the years for which they should have paid tax; at least, he fixed their names on the list, so they would be enabled to vote the next day. 84 PAESONS vs. SAUNDERS. The only way in which these gentlemen can escape the force of this testimony is to say it is hearsay. It is hearsay, but it is hear- say under such circumstances that it compels conviction, because this treasurer was directly put under suspicion by the statement, and yet neither the treasurer, nor Mr. Sells, nor Bob Catron, went on the witness stand to vindicate themselves. Mr. Carrico. Was not Sells summoned as a witness by the con- testee there ? Mr. Saunders. And you had a chance to put him on the stand. Mr. Carrico. And after the attorneys consulted with him, they refused to put him on the stand ? Mr. Saunders. The lawyers on this committee can decide for themselves how much you can generally accomplish for your case by putting an adverse witness on the stand. Sells evidently did not know, when talking with Cornett, that Busic had done any- thing illegal in adding the names to the list. It seems to have been a common practice in that county. Sells was a strong supporter of contestant, and both he, Catron, and Busic, the treasurer, were Republicans. Sells stated that he and Bob Catron went to town the night before the election and that he saw the treasurer, a Repub- lican, add names to the list. Cornett comes on the stand and swears to these facts and Sells is never called to contradict him nor is the treasurer of the county put on the stand. Do you suppose an official, put under suspicion by evidence of that character, if conscious of rectitude, would not be eager to go on the stand and brand those statements as false ? Mr. Thurston. I would naturally conclude if you had Sells Mr. Saunders. You had him, and the reason we did not put him on was that you had him. Mr. Carrico. He was summoned. Mr. Saunders. Yes; and after counsel talked with him they found that they could not put him on the stand. You never bothered to take him up after we declined to examine him. Mr. Thurston. I should assume you found out he would not con- firm that statement. Mr. Saunders. And I would assume that you found out that he would not refute it, which is more to the point, because he was a witness of your faith and your supporter, or rather your client's supporter. This committee is composed of lawyers. They can determine upon the evidence whether the presumption is that Sells was telling the truth in the first instance, when he madp that state- ment, or whether any injurious conclusion is to be drawn from the fact that we did not put him on the stand. The Chairman. What difference does it make whether this fellow is telling the truth or not ? Mr. Saunders. Can it be said that it was not to contestee's prejudice for the treasurer to add voters to the tax list on the night before the election, bearing in mind the conclusive effect that is imputed to the list ? The Chairman. How do we know it was done illegally ? Mr. Saunders. He could not do it on the night before election, or at any other time after he sent the list to the clerk, except ille- gally, after the treasurer passed on his list to the county clerk five months before the election; he had no legal right thereafter to make PARSONS VS. SAUNDERS. 85 any additions to the list. Any additions on his part were illegal additions. So much for that. These gentlemen admit in their notice that the treasurer can not add to the list. Mr. Howell. I can not understand how this list in the hands of the clerk could get to the hands of the treasurer. Mr. Saunders. The evidence shows it got there, because names were added in red ink the night before, and the list turned up next day at Comers Rock, with the red ink emendations to show for them- selves. Of course the treasurer's possession, for the purposes indi- cated, was an illegal possession. Mr. Nelson. Would not that imply collusion between the clerk and the treasurer ? Mr. Saunders. I think that is a fair inference. Mr. Carr^co. Were not those red-ink emendations all over the county ? Mr. Saunders. Yes. That is the reason I connect the other red- ink emendations with the treasurer and not with the clerk. Mr. Carrico. Suppose the court had ordered names to be placed on there; the list had been misprinted, and posted. How would he place them on there ? Mr. Saunders. I will tell you how I presume he would do in your county. He would certify the treasurer's list, and then he would make a separate list thereon, setting forth that the following names were added by virtue of order of the circuit court, or else he would add the names alphabetically and append a certificate stating the names that had been included in the court order. Mr. Carrico. Suppose he added the names alphabetically along under there in ink, would not that be as legal ? Mr. Saunders. I would not say that would not be legal. Mr. Carrico. Is there any law to the contrary ? Mr. Saunders. I would say that it was, but it is very unusual for a man who is adding to a list by virtue of a court order not to set forth the authority by which the names are added. The Chairman. I want to read just what this man says: A. Yes, sir; Andy Sells; Andy Sells told me he came to town with Bob 'and saw Mr. Busic, the treasurer, put Bob Catron's name on the list; that he either put down John W. Hall's and Steve Fielder's names on the list or — He does not know whether he put them on or not. Mr. Saunders. It does not make any difference as to legality whether he put on names, or added years to existing names, so as to show them fully paid up. The Chairman [continuing reading] : Or put some of the years for which they should have paid tax; at least, he fixed their names on the list, so they would be enabled to vote the next day. Mr. Saunders. So they could vote. The Chairman. How does he know whether he fixed them, when he does not know whether he put on the names or not? Mr. Saunders. I could tell you very readily. The Chairman. How ? Mr. Saunders. If the treasurer was working on this record and the witness was standing at a short distance, he might not know whether the treasurer was writing names in or adding years, but he could see that he was making additions, and all additions were illegal. 86 PABSONS VS. SAUNDERS. The Chairman. He says he does not know whether he put the names on at all. Mr. Saunders. Well that may be so, but I do not look at it in that way, at least it does not seem to me that it makes sury difference whether he saw him adding names or years, both were illegal. The Chairman. That is just exactly the way I look at it, that he does not know whether he put the names on at all. Mr. Saunders. He says he fixed them so that they would be able to vote. At any rate Sells says he saw Busic add Catron's name, whatever may be thought of his statement as to the others. The Chairman. He says he does not know whether he put, the names on or not. Mr. Saunders. The next day the list turned up with those names on it. The witness says that Busic fixed them, and th^ were fijced all right. The Chairman. I am giving him the benefit of the doubt. He says he doesn't know. Mr. Nelson. In other words, the treasurer did not have any right to have the book at all at that time ? Mr. Saunders. None at all. Mr. Carrico. I want to ask if the record does not show that there were Democrats who were on the list in these red-ink emendations who voted ? Mr. Saunders. That is true; there may have been some; but does that affect the irregularity of the treasurer's conduct ? Mr. Carrico. I do not see that the treasurer had any irregularity in his conduct, and I do not think the record shows it. Mr. Saunders. There is no evidence in this case that anyone else made emendations. Mr. Carrico. I do not think there is any evidence that he added any. Mr. Saunders. I submit that evidence now, and later I will submit more evidence as to these additions. I was asked by a gentleman on the committee what business did Busic have with this list on the night before election. I answer that he had no more right to add to this list than you or I or any other unauthorized person. Mr. Carrico. I want to ask you if, at the same time, at this same precinct, the Democrats who were on the list in these red-ink emenda- tions were not allowed to vote by the two Democratic judges, and these same parties you speak of, the Republicans, were refused a vote ? Mr. Saunders. I will say this, that Mr. Cornett testified he chal- lenged all these red-ink emendations, and that his challenges were not allowed in many cases of Republicans whom he challenged. Possibly some Dernocrats may have voted who had been added by Busic. I believe the record in this case shows that one did vote; but I am talking now not about the irregularity of the votes, but about the misconduct of this treasurer in adding to the tax lists when he had no right to do so, either on the night before the election or at any time after he lodged them with the clerk. (Thereupon, at 12.15 o'clock p. m., a recess was taken until 8 o'clock p. m.) PAESOKS VS. SAUNDERS. 87 NIGHT SESSION. The committee met, pursuant to the taking of recess, at 8 o'clock p. m., Hon. James M. Miller in the chair. ARGUMENT OF HON. E. W. SAUNDERS, CONTESTEE— Continued, Mr. Saunders. There are one or two matters which came up this morning to which I wish to refer while they are fresh in the minds of the committee. These matters did not come up in the order in which I intended to present them, but now that they are before the committee I will try to dispose of them. Fiist, in respect to a suggestion made by Senator Thurston touch- ing the qualifications of election judges. As an offhand proposition^ having reference to the fact that I have never considered an election judge as an officer in the technical sense contemplated by the laws of Virginia, I replied to Senator Thurston that I did not think that section 32 of the constitution applied to judges of election. But on thinking the matter over, I am disposed to think that there is more in that suggestion than I was disposed to accord to it at first. Cer- tainly if a judge of an election is an officer, section 32 applies, and if it does apply, then this result follows: That while this section would make T. ^i. Smith, the judge at Design, ineligible, it would remove the ineligibility of two other judges who are attacked at Riceville and Baclielor's Hall. That result comes about in this way: These judges are attacked on the ground that they are, respectively, a con- stable and a justice of the peace. If the provision of the constitution which provides that every man who is entitletl to vote is qualified to hold office is regarded as fixing the qualifications of judges of elec- tion, then the disqualifications intentled to be imposed upon judges of election by section 118 of the code are unconstitutional. The specification of disqualifications in the constitution is an implied pro- hibition upon the legislature to add disqualifications of a further and different character. In this connection I want to cite the following decision of our supreme court [reading]: The act of February 14, 1884, prescribing that members of election boards shall be freeholders contravenes the Virginia constitution, Article III, section 2, which declares that "all persons entitled to vote shall be eligible to any office within the gift of the people," and is void. In that case certain qualifications had been added by statute, as a prerequisite to holding a certain office, and on application to the supreme court they were held to be void. Further in the case the court uses this language (see p. — ) : Now, it is a well-established rule of construction as laid down by an eminent writer, that when the constitution defines the qualifications for ofiice, the specification is an implied prohibition against legislative interference to change or add to the qualifica- tions thus defined. So that if Senator Thurston is correct — and I am free to say, after reflection, that I am disposed to think he is — and these judges of election are officers, then section 32 disqualifies T. M. Smith, if it is ascertained that he had not paid his taxes. But the officers at Bachelor's Hall and Riceville, who were disqualified by section 118 of the code, are not disqualified, as that section is rendered uncon- stitutional by the provisions of the constitution, establishing the qualifications of officers, as found in section 32 of that instrument. bo PAESONS VS. SAUNDERS. Another word in connection witli two matters to which your atten- tion was called this morning. It was stated that in the county of Grayson the evidence showed that the treasurer had been adding to the tax lists of that county. I cited a portion of Cornett's evidence at the time. In that connection I now wish to cite another portion of his testimony which will conclusively show that the treasurer of that county did, as a matter of fact, undertake to add to those lists. I wish to refer the committee, in addition to what I have already cited, to page 322 of the record. The citations of this morning re- ferred to the conversation of Cornett w^ith a man named Sells. But the next citation will come a little closer to the treasurer. The same witness, Cornett, testifies to a conversation with one P. K. Catron. The Chairman. What page is that ? Mr. Saunders. Page 322 of the record. Under the law of Virginia, before an election, there is sent to one of the judges of election, by the clerk, the poll books and the certified tax list, for use at that election. Now, the words " certified list" are used in section 38 of the constitution with respect to the tax list, after it is sent out by the clerk for official use by the judges of election at a precinct. Here is the matter to which I wdsh to call your attention in this connection. [Reading:] The evening before the election I took the registration book for Comers Rock precinct to P. K. Catron, and left it with him, as one of the judges of election. I asked him if he had a- list of those who had paid their poll tax for Comers Rock precinct; he said it had been sent to him with the poll books, and he found, on examining it, that his son Bob's name had been left off, and he had sent it back to town, to have it revised or fixed. That he sent it by Bob. Bob is the same man whose vote was subsequently contested, and here we find the judge of election stating to this witness, Cornett, that he had sent the tax list to Independence by his son Bob, to have it revised, or fixed. Bob Catron was the man who went with Sells to the town of Independence. After this man Cornett testified to the foregoing conversation, P. K. Catron went on the stand, and did not undertake to deny that it had taken place, as asserted b}^ the witness. So I think that this evidence, in connection with the other citation, establishes the fact that the treasurer of that county was adding to the tax lists on the night before the election. I stated to-day that so far as contestant was concerned he had asserted in his notice and his brief that no name could be added to the list save by order of the court; that neither the treasurer nor an3^one else had the right to add to this list, after it passed out of the treas- urer's hands, save the clerk, pursuant to an order of the court. I Vv^ant to call attention, in connection with that statement, to the following extract from the brief. On page 26 of this document you will find the following : No election board can disregard this tax list. No matter how incorrect or incom- plete it may be, no additional names can be placed upon it except by an order of the circuit court or a judge thereof. As I said, I accept that as a sound proposition of law. Mr. Carrico. Suppose the circuit court in its order had ordered that Bob Catron's name go on the list and through inadvertence the clerk had not placed it on there when he had certified it out to the judges of election; would it have been proper, the day before election, for him to have placed it there ? PARSONS VS. SAUNDERS. 89 Mr. Saunders. I think so; yes. He could have placed it on there at any time. But tliere is not a line of evidence here to show that the list was sent to the clerk. It was sent to the treasurer, not the clerk. If you can connect the clerk with these adflitions, I haven't a word to say in tlie way of criticism or objection. On pages 310, 311, and 312 of the record will be found the testimony of Mack Pugh. This testimony refers to the red -ink annotations. Mack Pugh swore that he had not paid his taxes for 1905, 1906, and 1907. He was on the list all right. He voted for the contestant. Then there is Hoffman, at page 280 of the record Mr. Carrico. Didn't he also say that a Democrat had paid them for him ? Mr. Saunders. I don't find anything of that kind. You tried on cross-examination to get him to say something like that, but you could not get him to do it. He didn't know who paid them. But if a Democrat paid them, a Democrat didn't get his vote. I will read from his testimony. [Reading from p. 310 of the record:] Q. Please state whether you paid your poll tax for the years 1905, 1906, and 1907, as required by law. A. No, sir. Q. I here hand you what purports to be a list of voters in Grayson County, who had paid their poll tax for the years named, which said list is sworn to by D. J. Busic, treasurer of Grayson County. Now please take this list and look on page 6 of the Wilson district and see if you do not find the name of Mack Pugh written in red ink, and after the name the figures 1905, 1906, and 1907, showing that you had paid your poll tax for those years. A. Yes, sir; it looks to be there. And later he swears he voted for contestant. Having proved that the treasurer added to the Comers Rock list with red ink, and having proved further (see Analysis, pp. 24-25) that other additions in red mk were made to other lists at the different precincts, it is submitted that the treasurer is connected with all the red-ink emendations, and the whole list for this county, which went largely Republican, is put under suspicion. In addition the record shows that various people went to Busic after May 1, 1908, to have their names entered on the list. So much for that. I pass on now to what I am sure will be far more interesting matter to the connnittee, and certainly to me, than the matters I have been dealing with up to the present time. I de- sire to take up the propositions of law that were presented by Mr. Carrico and Mr. Montague on yesterday, and to take them up in the reverse order. First, the arguments submitted by Mr. Montague, so far as they relate to the constitutionality of the Virginia act of appor- tionment. I shall undertake, to the best of my ability, to demonstrate the constitutionality of that act, whether with reference to the Con- stitution of the United States or to the constitution of Virginia. Mr. Montague saitl that this was purely a federal proposition. In that statement he was obviously in error. When he vetoed the bill to which he referred in his argument he did not base his veto on the ground that the question presented was purely a federal proposition, because he related his message partly to the Constitution of the United States and parth' to the constitution of Viruinia. (See record, With reference both to the constitution of Virginia and to the acts which derive their authority from the Constitution of the United 90 PAESONS VS. SAUNDERS. States, I shall undertake, as I say, to show that the Virginia statute is constitutionaL Mr. Montague walked very carefully when he discussed the consti- tutionality of the act of 1908, with reference to the constitution of Virginia. He denied one thing. Tie denied that we could derive the right of the vState to make apportionments from section 4 of the Con- stitution, which provides that the times, places, and manner of hold- ing elections for vSenators and Representatives shall be prescribed in each State by the legislature thereof, subject to the controlling power of Congress acting under the Constitution. I might well ask Gov- ernor Montague, in that connection, if the right of the legislature to district a State does not proceed from that clause of the Constitution, then from what clause does it proceed ? That question was certainly not answered by him on yesterday. According to the uniform current of authority, section 4 is the one which affords the States the right to lay themselves off into districts. If Congress possesses a paramount authority in this respect, and the existence of this power has been often denied, it must be derived from the same section. This section is as follows : The times, places, and manner of holding elections for Senators and Representatives 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. Governor Montague made light of the proposition that this section furnished the authority to the States to enact their statutes of ap- portionment. If they do not derive this power from this section, is it an inherent and fundamental possession of their own ? If they derive it from the Constitution, I submit that they must derive it from that clause of the Constitution. If they derive it from that clause of the Constitution, then the power is an absolute possession of the States until that power is, in some way, circumscribed by the authority of Congress. To what extent has Congress undertaken to circumscribe the power of the States with relation to laying off their territory into districts, in respect to the details of contiguity and compactness ? I know of no statutes to that end, no restriction in that respect, save the act of apportionment of 1901 . Governor Montague did not seem disposed to attach much authority to this act, but if this statute does not pre- scribe a rule for the States in the matter of apportionments, then Congress has not sought to exercise its supposed authority in this respect. The attention of the committee is directed to this act, because I wish to consider this matter primarily with reference to the power of Congress to interfere with the States in matters of apportionment. The act referred to is as follows: In each State, under this apportionment, the number to which such State may be entitled in the Fifty-eighth and each subsequent Congress shall be elected by districts composed of contiguous and compact territory, containing, as nearly as practicable, an equal number of inhabitants. That, as I said, is the only act of Congress of which I have any cognizance, or to which anybody has undertaken to refer, which undertakes to say to the States how they shall lay off their districts in the particulars mentioned, namely, of contiguity and of compact- PARSONS VS. SAUNDEES. 91 ness. Are there any authorities on this proposition ? I call upon these gentlemen in this connection to point them out. In this connection, Governor Montague failed to advert to an authority immediately in point, an authority which is precisely on all fours with this case, an autliority which, until it is set aside, is absolutely conclusive and tlecisive of the case in hand. Its findings are, first, that the Congress lias no authority over the States in the matter of a])portionments, and, second, that if tiie Congress possessed this power, it would be most unwise and inexpedient to undertake to exercise it. The case to which I refer is that of Davidson v. Gilbert, which grew out of the action of the Kentucky legislature in taking a county from the Eighth Kentucky District and adding it to another. By reference to that case it will be seen that the State of Kentucky took this action by virtue of its legislative authority. It took a Republican count}^ from one district and put it into another district. And when it took that Republican county from the one district and transferred it to the other district, it made the first district Demo- cratic. Before that time the district was Republican. As a result of the change it became Democratic. Of course that was an outrage. I believe Mr. Speaker Reed used to say each time the Committee on Rules reported a special rule, "Prepare for another outrage." The action or the legislature of Kentucky was another outrage. Now, what happened in that district when a Democrat was elected in consequence of the change ? The Republican who was defeated brought his case to Congress, and set up the claim that the State of Kentucky, in respect to this act, had gerrymandered his district, and that this action was wrong; that it had been done for political purposes; and that no sufficient reason could be afforded why this change should have been made, and the pivotal county transferred from one tlistrict to another; in other words, that the action taken was wrong per se — morally wrong, as well as in excess of the con- stitutional authority vested in the State of Kentucky. Well, that case was sent to a committee. I think it went before this very committee; possibly the chairman of this committee was a member of the committee at that time. The Chairman. I think that was Mr. Mann's committee. Mr. Saunders. Well, Mr. Taylor was a member of the committee. This gentleman seems to have been a man of remarkable ability. I have examined his arguments in connection with various matters before the House; I have followed the course of his arguments in connection with the Brigham Roberts case, and later in connection with the Smoot case, in the Senate of the United States ; and Mnthout regard to the universal opinion which is entertained of his ability, those deliverances on his part would be sufiicient to establish him as a sound constitutional lawyer and a man of great learning. He made the report in the case I have referred to, and I will not undertake to present its findings in my own language. The most effective way of presenting this report to the committee will be to read such portions of it as touch on the case in hand. This case of Davidson v. Gilbert will be found in Hinds Pre- cedents, volume 1, on pages 180-181. Now for the citations: The third objection was that this act contravened an act of Con- gress. The committee considered at length in the light of Article I, section 4, of the Constitution, the suggestion that the Kentucky act 92 PARSONS VS. SAUNDERS. contravened the federal act of apportionment. Section 4, of the Constitution, is as follows: The time, places, and manner of holding election for Senators and Representatives 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. The report proceeds to say that this was the first time that Con- gress had been asked to undo the work of a State which had divided itself into a proper number of congressional districts. Reviewing the history of apportionment the report adds: The Chairman. Did he say that was the first time? Air. Saunders. That is what Hinds says, quoting from the report. Mr. Thurston. Tayler said that in his report. Mr. Saunders (reading) : 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 on the subject going beyond the mere apportionment of the States was enacted in 1842. -In the apportionment 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. Then came the apportionment act, and there was finally added to it the provision requiring an equal number of inhabitants in the dis- tricts, so far as practicable. On this apportionment act a part of the contestant's case is based, as set out both in his notice and in the brief filed on his behalf. In both of these papers it is asserted that when the State of Virginia created the fifth district, under the act of 1908, its action was unconstitutional, in that it failed to conform to the federal statute in respect to its requirements as to compactness and population. So much for the claims of contestant in the present case. Now for the findings of the committee. I want to say another thing in this connection, and that is that it has never been authoritatively settled that Congress possesses the author! t}^ to require the States to elect by districts. Of course I won't go into that to-night. The report in Davidson v. Gilbert proceeds as follows: So far as legislative declaration is concerned, it is apparent that Congress has ex- pressed 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 a constitutional right to enact 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 States may provide. The 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, had failed or refused to make such provision itself. One of the grounds of the pending contest is that the Virginia statute of 1908 transferring Floyd from the fifth to the sixth district is in contravention of the alleged authority of the federal act of appor- tionment cited supra. In this connection the ultimate finding of PARSONS VS. SAUNDERS. 93 the report in Davidson v. Gilbert will be of interest to the committee. This finding is in tlie following terms: Your committee are therefore of opinion that a proper construction of the Consti- tution does 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 Consti- tution, it would be in the last degree unwise and intolerable that it should exercise it. To do so would be to put in the hands of Congress the ability to disfranchise in effect a large body of 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 resorted to in a large degree by the several States, but the divi- sion of political power is so general and diverse that notwithstand- ing the inherent vice of the system of gerrymandering some kind of equality of distribution results. This case is authority for two propositions: First, that Congress has no constitutional power to determine the boundaries of congres- sional districts, or to revise the acts of a state legislature in fixing such boundaries; second, that if it possessed this authority its exercise would be most intolerable and unwise. Mr. Nelson. Might I interrupt you right there? Mr. Saunders. Certainly. Mr. Nelson. I have read that case, and I would like to have you suggest to me, if you have given the thing any thought, how that could be done without a law being made by Congress ? Mr. Saunders. I do not see how it can be done. Mr. Nelson. In that case, it would have to be applied to all the States in the Union ? Mr. Saunders. Certainly. This suggestion shows what a Pan- dora's box is opened when you undertake to do what this contestant asks you to do in order that he may acquire my seat. ^'Ir. Nelson. Follow that up, please. Say we in this case attempt to apportion Mr. Saunders. You are asked to set aside a valid act of appor- tionment in the State of Virginia. Mr. Nelson. But are we attempting to legislate at all? Mr. Saunders. Well, of course you are not undertaking to pre- scribe a specific district, but you are undertaking to set aside a valid act of the legislature which has established our districts. To do this successively would be to legislate, in substance. The analogy is the action of the courts in those States where they undertake to say that some specific arrangement of legislative districts is unconstitutional. In those States the courts can avoid successive acts of apportion- ment until finally one is presented which they are willing to approve. This, in substance, is apportionment making by the courts. Mr. Nelson. If it does not interrupt you, I would like to ask another question ? Mr. Saunders. It does not interrupt me at all. Mr. Nelson. I want to ask you for light on these points that are troublesome. In the exercise of our jurisdiction here, what is to pre- vent our declaring that law valid or invalid on the provision which gives us a right to look into the election returns of Members of Con- gress. 94 PARSONS VS. SAUNDERS. Mr. Saunders. Well, the election and return of a Member is valid if it conforms to existing law. If it is alleged to be invalid, that in- validity must be referred to some proper ground. The election of a Member can not be declared invalid as a mere exercise of arbitrary power. Now, the report in the case supra holds that the act of ap- portionment of 1901 does not furnish Congress with the power to interfere with the States in the matter of laying off districts, and holds further that, even if it did, the power ought not to be exercised. If this House can say: ''This arrangement does not suit me; it does not conform to my notion of what a proper district ought to be, and I will declare the same invalid and unconstitutional," then what will happen ? Suppose the State makes another arrangement and another election is held, but another contest is instituted presenting the same question. The House may again declare its authority, and pronounce the second act unconstitutional. Thus, by virtue of declaring suc- cessive acts of apportionment invalid, the House would, in substance, compel the rearrangement of ever}^ district in that or any other State, in conformity with its own views. This would be for the House alone to practice a general system of gerrymandering. You are asked to do in this case just what was asked to be done in the case of Davidson v. Gilbert. It was claimed in that case that a county was improperly transferred from one district to another; that such a wrong ought not to be allowed, and that the Repub- lican contestant of Gilbert's seat ought to be seated as a sort of punishment of the State of Kentucky for its improper practices. Mr. Thurston. If I do not interfere with you Mr. Saunders. Not at all. Mr. Thurston. Referring to this particular case, not what Mr. Tayler says there, but take this case before us. If this committee should declare your act changing the boundaries of the fifth and sixth districts unconstitutional, Congress would not thereby be defining any districts from which Congressmen should be elected, but would throw the elections back into the districts fixed by your own State at a time and in a way that was clearly legal. Mr. Saunders. That raises the question whether the other act was in anywise more legal than the act of 1908. Why was the "time" and "the way" of the act of 1906 more legal than the "time" and "the way" of the act of 1908? Mr. Thurston. That would not take the power away from the States. Mr. Saunders. Let us see. Looking to the map of Virginia, you will see that there are other districts in the State that lack compact- ness even more than the fifth district. The sixth is more of a shoe- string district than the fifth. The gentleman who ran against Mr. Glass could therefore claim that the act that fixed the sixth district was invalid, and instituting a contest, could ask Congress to declare that the apportionment of 1906, so far as the sixth district was created thereby, was null and void. This course could be taken consenta- neously or consecutively with reference to all the districts of the State. This would be, as I have said, to vest in the House an absolute control over the States in respect to the arrangement of their districts. This contestant asks this committee to recommend a policy which was dep- recated by the report in Davidson v. Gilbert. Mr. Nelson. Let me press that a little further, if I may. PARSONS VS. SAUNDERS. 95 Mr. Saunders. Certainly. Mr. Nelson. Supposing that that is carried on, supposing that this being done in Virginia and having been done in the Gilbert case, and we decided as they did in the Gilbert case, what is to hinder them shifting tlie territory every two years ? Mr. Saunders. Nothing in the world. Should you decide that the House has the powder to avoid the apportionment acts of the States, what would hinder it from exercising this power whenever it met, with reference to the acts of any and all of the States wdiose appor- tionments did not meet its approbation ? A question of large policy is involved in contestant's application in this case. Mr. Nelson. But you take away that right. Mr. Saunders. But if you claim that right (this, of course, is a sort of counter question), then I ask you, what would hinder the House, every time that it meets, from drawang into issue ever}^ dis- trict in the United States ? Mr. Nelson. It is the difficulty with it that you object to. Mr. Saunders. Yes; there is a practical difficulty that emphasizes the unwisdom of the suggested policy. Mr. Nelson. You do not deny the constitutional right. Mr. Saunders. Well, on that point I think I might rest my case on the report of Mr. Tayler in Davidson v. Gilbert. Mr. Nelson. I w^anted to know on which you relied, the constitu- tional right or the policy ? Mr. Saunders. On both. But I have not undertaken to argue that Congress has no right to establish or regulate the districts in the States. In that respect as well as in the other I stand on the findings of the report. Until the findings of that report are overruled, I think they wdll command as much respect, and for that matter a great deal more, than any argument I could make on the questions which it discusses. Of course, I have investigated the question of constitution- ality, and could argue it, but I think that, until this committee reaches the point that it is disposed to say that, as a matter of wdse policy, this House ought to undertake this enterprise of upsetting con- gressional apportionments, it is not necessaiy for me to do more than stand firmly on this well-reasoned precedent. Mr. Thurston. If I do not interrupt you Mr. Saunders. Not at all. Mr. Thurston. You understand, of course, that that act of the Kentucky legislature was the first action taken in the way of changing the congressional districts. Mr. Saunders. Yes. Mr. Thurston. After a federal census ? Mr. Saunders. Certainly. Mr. Thurston. It w^as the first act. They had not redistricted under the census until they passed that act. Mr. Saunders. I understand that. Mr. Thurston. Then there is one other thing here you do not find in this book; but you will find it in the full report of Mr. Tayler. He lays great stress in urging Congress not to act in this case on the fact that both political parties in the two districts afl^ected had accepted the change, had held their nominating conventions with reference to the new districts, and had nominated as of the new districts, and had proceeded and carried out their elections in the new districts. 96 PARSONS vs. SAUNDERS. Mr. Saunders. Well, with respect to the first suggestion, that is proper to be related to and discussed under another head, namely, the exhaustion of power by one act of apportionment. I will discuss that later. Mr. Thurston. That is right. Mr. Saunders. As to your second proposition I think the answer I have given in that connection in my brief is as good an answer as I can give; that if this question is a question of constitutionality, no act of a political organization can make that valid, which was once void. If the Kentucky legislature did not have the power to make the transfer then no subsequent action of a political organization could make valid that which was void in its inception. Now, with respect to the question of policy, that committee did not say in its report that quo ad that particular district; it advised the House not to interfere with the exercise by the State of the power of apportionment, but it recommended that it would be an unwise national policy for Congress to embark upon the practice of inter- ference with the apportionments of the States. It did not limit its recommendations to the Kentucky case, or say, as the courts some- times say: "We will decide this case this way, but our action in this case is not to be taken as a precedent." Mr. KoRBLY. Does Mr. Thurston want to be understood as saving that the fact that Kentucky exercised the power to district the first time, and violated the rule for compactness, that it might do that because it was the first exercise of the power of districting ? Mr. Thurston. No; I wanted to call attention to that because of our further legal contention that the legislature can only act once under each apportionment. As Judge Saunders says, that comes under the head of another discussion. Mr. Saunders (reading from Hinds) : 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, notwithstanding the inherent vice of the system of gerrymandering, some kind of equality of distribution results. In other words, there is a sort of substantial equality worked out under the present system without any interference by Congress with the rights of the States. Now, a word further in this connection. Governor Montague re- ferred to political precedents, and heaped contempt on precedents of this character. In respect to the case of Perkins v. Morrison, he criticised that as a political precedent. By the logic of this argument the decision of the committee in this case would be a political prece- dent and not entitled to be regarded as authority. I want to say, Mr. Chairman, that that sort of argument proves too much. If we can not believe that the judgment of the committees of a preceding Congress, and of the Members who composed it, acting under their oaths as judicial bodies — for the statute under which this action is taken — makes this committee a judicial body is entitled to respect, how can we argue that the findings of committees of a subse- quent Congress are entitled to any greater respect ? The committees of other days were composed of men like ourselves, elected likewise from congressional districts, and bringing a sense of duty to their work, just as we claim for ourselves that we bring to the discharge of our duties a proper sense of patriotic responsibility. PABSONS VS. SAUNDERS. 97 Wo are not to suppose that our forefathers were less mindful of their duty, or less disposed to do justice, than the men of to-day. ^ The argument of Governor Montague, which w^ould comprehend in one sweeping condemnation the action of all political bodies, brand- ing them one and all as partisan, was a hasty and ill-advised utterance. I am reminded of the saying im])uted to one of the characters of the Bible: "T said in my haste all men were liars." Of course he had to moilify his maxini, for in its original form the apothegm included its maker. If the action of other committees is not to be followed because they constitute })oIitical precedents, to what class will the action of this committee belong? It, too, by anticipation, is pro- nounced to be ]3artisan, by the force of the governor's argument. Governor Montague's criticism of the precedents afforded by the action of the House in the past was rather unusual. As a rule we refer to the action of our forefathers as embodying the height of wisdom. Our patriotic forefathers are always brought into the lime- light when it is desired to emj)hasize, as it were, the lack of patriotism of the modern-day politicians. I believe those men did their duty, and I believe this committee will do its duty, and. in doing its duty this committee will give to the precedents of this House that w^eight to wdiich they are entitled, as thoughtful findings of men who were seeking to do their duty. So much for this phase of the case. As I have said, until the con- testant can overbear the report in Davidson v. Gilbert, he is shut off from asserting the power ol Congress to interfere with the States in the matter of apportionments. It is said that the report was never acted on in the House. I take it that this fact increases its authority. The contestant was impressed with its authority, or else was unable to bring it before the House, which doubtless recognized that a decision in the negative of contestant's claim was a foregone conclu- sion. There it stands, emphatic, direct, cogent, logical, and com- prehensive. It fits this case like a glove, and so long as it stands unreversed, so long as this committee is unwilling to recommend to the House of Representatives the twofold proposition, first, that the House possesses the constitutional right to interfere with the States in the matter of apportionments, and, second, possessing this right, that it would be a wuse policy to embark upon its exercise, so long will this case oppose an effectual barrier to the effort of contestant to deprive me of my seat in the Congress of the United States. The next proposition that I wish to discuss is that this apportion- ment is unconstitutional from the view point of the constitution of Virginia. There are a number of cases relating to the authority of the courts to overturn apportionments on the ground that they are contrary to the organic law. Some courts maintain the authority, others deny it, when the legislature exercises any measure of discre- tion. I will not undertake to reconcile the views of the courts which have rendered these decisions. They are hopelessly irreconcilable. They are no more to be reconciled than Webster and Hayne on the Constitution could be reconciled. They represent opposing views of a fundamental principle, or rather present fundamental principles which are hopelessly and irreconcilably opposed. One line of deci- sions is loath to interfere with the exercise of legislative discretion as 38069—10 7 98 PARSONS VS. SAUNDERS. applied to political apportionments. The other line feels no indispo- sition on that score, but is ready to overturn any consecutive number of legislative apportionments. There are four courts in the United States of the highest authority*, which have declared unequivocally that the legislatures of the States, acting under constitutions like the constitution of Virginia, are vested with a political discretion in the matter of apportionments with which they will not interfere unless the act complained of is of such an extreme character of injustice that it may be fairly described not as unwise or unfair or indiscreet or unjust, but as a nullity, as not being an apportionment at all. There is the fundamental line of cleavage between the apportionment cases. The courts of the State of New York, of the State of Illinois, of the State of Ohio, and of the State of Virginia maintain the proposition that the laying off of a State into districts is a matter of political dis- cretion that should be remitted to the legislatures subject to inter- ference by the courts in certain indicated and extreme cases; that it is not a judicial function to undertake to discharge this particular line of public duty. And then there are the cases from Michigan, Wis- consin, and Indiana which maintain the other view, that the courts can. constrain the legislative bodies to walk in the straight and narrow way which they prescribe. These cases are not to be reconciled or harmonized. There is no one fundamental coherent proposition for which all the cases stand, unless it is that the courts possess juris- diction. As soon as they undertake to ascertain how that jurisdiction shall be exercised the divergence begins. What does the supreme court of New York say in this connection ? That is a great court. I don't know of any court whose decisions stand higher with the bar than the court of appeals of New York. The opinion in Carter v. Rice is so voluminous that I will not under- take to read all of it, but I will call your attention to a few pertinent paragraphs. The power to readjust the political divisions of a sovereignty, with reference to the representation of the inhabitants in the legislature rests, of course, in the first instance, in the people. The essential nature of the power is political, as distin- guished from the legislative or judicial power. The power to review in the courts exists, when the people have so limited the exercise of the power to readjust the political divisions of the State, that the power thus limited has become, in the hands of the persons intrusted with it, one of ministerial nature only. (Carter v. Rice, 135 N. Y., 499-500.) And there you approach the dividing line which separates these apportionment cases, some on the one side and some on the other. The court continues: The legislature, in this case, is intrusted with some discretion in the matter of apportionment. Is the court to interfere with such power whenever it thinks that the legislature might, in its exercise, possibly have come nearer to an equality, after complying with the special conditions mentioned in the Constitution? This would be to assert a power in the courts to supervise the use of the discretion given to the legislature, if such discretion were exercised in the slightest degree, after the con- stitutional mandate in regard to the county lines and county members, had been complied with. We do not believe in the necessity or propriety of any such rule. On the contrary, we think the courts have no power in such cases to review the exer- cise of discretion intrusted to the legislature by the constitution, unless it is plainly and grossly abused. The expression, "as nearly as may be," as used in the consti- tution with reference to this subject, do'es not mean as nearly as a mathematical process can be followed. It is a direction addressed to the legislature, in the way of a general statement of principles, upon which the apportionment shall, in good faith, be made. (Id., 501.) PAKSONS VS. SAUNDERS. 99 Of course cases can be imagined in which the action of the legis- hiture would be so gross a violation of the constitution that it would be easily seen that the organic law had been entirely lost sight of. This would be a plain and gross violation, in the sense contemplated by this, and the other courts maintaining this principle. Mr. Nelson. Let me interrupt you there. What, in your judg- ment, would be such an apportionment, where the constitutional provisions had been lost sight of 'i Can you give me a specific dlustration ^ Mr. Saunders. Yes; but in doing that, Mr. Nelson, I will answer you in the language of these courts, that it would have to be such a departure from the constitution that the courts could not merely say: "This is an unwise apportionment; this is an unfair apportion- ment," but would flatly atiirm this is no apportionment at all. Mr. Nelson. Well, what do you mean by that ? Mr. Saunders. That is what the courts say. Mr. Nelson. Language has a meaning. What would in Virginia be a "no apportionment?" Mr. Saunders. I take it that if the State of Virginia undertook to group all of the counties in such a manner that nine congressional •districts would contain one county each, while the remaining counties were included in the tenth district, such an arrangement would be a gross violation of our constitution in the contemplation of Carter v. Rice, supra. Of course, there might be other arrangements not so bad as the one suggested that would still be gross violations of the constitution, as these terms are used by the courts. In such cases the courts would hold that there had been no apportionments at all. These suggestions are illustrative of what the courts mean by the terms used. But it is clear that the court which decided Carter and Rice, under a constitution closely resembling the Virginia constitu- tion, would not hold the present act of apportionment in our State to be unconstitutional, for the simple reason that the recitals of Carter v. Rice show that the New York apportionment then under consideration was a far more outrageous gerrymander, if you choose so to describe it, than the Virginia act of 1908, which is now drawn in question. The facts in Carter v. Rice give a line on what the court in that case thought was an apportionment that may have been unjust, in a moral sense, but was not unconstitutional. Mr. Thurston. Have you found any case where the courts have denied the power of the judiciary to set aside an act of the legislature in the matter of an apportionment ? Mr. Saunders. No; they all maintain the power of the courts to interfere, but differ radically as to when that power ought to be exercised. Mr. Thurston. They all concede that the power does exist and that it depends on whether or not there has been a gross, apparent, flagrant violation of the constitutional provision. Mr. Saunders. Yes; but the cases follow that up by showing what they mean by the words gross, flagrant, and palpable; they mean a redistricting; that is no redistricting at all; that is a nullity. They all use that illustration. Mr. Nelson. I have tried to follow that up in my mind and I get. nothing by that cleavage, because if there is no apportionment at 100 PARSONS VS. SAUNDEES. all — for instance, in your judgment, if they let it stand under the old, there would be the old apportionment. Mr. Saunders. The illustration I gave furnishes, I think, a case in which it might fairly be said that there was no apportionment at all. Mr. Nelson. You gave me an idea of what you think it means. Mr. Saunders. Yes; I may add that it might not have to be so bad as that in order for the courts to exercise their powers of annulment in States like New York, Illinois, Ohio, and Virginia. The court of the latter State has expressed this principle of noninterference in the very largest terms. Still, I do not believe, I am frank to say, that when you work out the principle asserted by the Virginia case there is any difference between the position maintained by our court and that held by the Illinois case, the New York case, and the Ohio case. Our court has simply expressed its indisposition to interfere with apportionment acts in more sweeping and universal terms by declar- ing that the "matter of apportionment is a matter of political dis- cretion with which it has no concern." That is the statement of a Virginia court, and we are considering in one phase of this case the constitution of Virginia as the same is expounded by the supreme court of that State. Hence for the just decision of this contest, the case of Wise v. Bigger (79 Va.) is the" strongest case that could be brought before this committee. The Chairman. Is that New York case the case of Carter -i^ Rice? Mr. Saunders. Yes. The Chairman. What do you say as to the later decision in New York? Mr. Saunders. That decision is the strongest confirmation of the proposition affirmed in Carter v. Rice that you could imagine, because so far from the court saying that Carter v. Rice was improperly decided, it expressly says that it recognizes the force and binding authority of Carter v. Rice, as conditions then existed. The later case was decided upon the terms of a constitution subsequent to Carter v. Rice. Now, I wish to say another thing in this connection. Our friend, Governor Montague, said that this was a question of power, and not a question of justice, in the sense of undertaking to do justice without regard to law; that it was a question of power under the law. I accept that; I contend for that principle. It is a question of power under the law. And while I do not mean to be understood as saying that I am not prepared in any court of morals, or high equity, to justify the present apportionment in Virginia, if I could present to this committee the evidence that was before our legislature, and all the considerations that animated that body, I consider that we are precluded from entering upon that inquiry. You are sitting as a court, and as a court, you presume that the laws of Virginia were passed under proper motives and that the legislature had in mind considerations which are not now, and can not be, before this committee. The legislative discretion is a wide one. They may consider things such as com- munity of interest, facility of communication, the general topography, the rapidity with which population is increasing, and many other things with which the court has nothing to do, and which it can not know. This court can not take evidence as to these outside considerations, but I have no doubt of the power of the legislature to do so in the exercise of its discretion. (83 Wis., p. 169.) PARSONS VS. SAUNDERS. 101 Mr. Nelson. You are familiar with the further decdsions of the court which say: "When they confine themselves within their constitutional rights V Mr. Saunders. Yes. Mr. Nelson. And if they go beyond that, we have a right to as- certain their motives ? Mr. Saunders, ^'es, if they pass that line. Now, with "respect to whether our legislature has confined itself to the exercise of its consti- tutional rights, what more potent evidence could be afforded that it was within its rights than a decision of the supreme court of that State affirm- ing that in laying off congressional districts the legislature was exercis- ing a political discretion with which its court was not concerned. How would this tribunal be able to hold that the Virginia legislature made an unconstitutional enactment when the highest court of that State had declared that in making apportionments it was discliarging a consti- tutional function which was its peculiar attribute, and one with which the court had no concern ? Still, in order to seat the contestant and oust me, you are asked to override that interpretation of the or- ganic law of Virginia which has been placed upon it by our highest court. That is the proposition in concrete form. The court said in People ?". Thompson (155 111., 461) that — If a statute is within the authority of the legishiture, as afforded by the constitution, it is valid, though resulting in inequalities and injustice. There are man)- constitutional duties imposed upon legislatures which can not be enforced by the courts, and the manner of compliance with which must be left to the sole and final determination of the department upon which the duty is imposed. (Id., p. 474.) Courts ought not to pass the boundary line inclosing the discretionary power of the legislature and invade that discretion. (Id., p. 476.) In this case it was a question for the final determination of the legislature as to what approximation should or could be made towards perfect compactness of territory and equality of population, and this, too, though treating the requirements of the consti- tution as mandatory. (Id., p. 477.) The Chairman. What are you reading from 'i Mr. Saunders. This is the case of People v. Thompson (155 111., 461). Nothing can be stronger as a statement of principle than the extracts I am reading. (Reading further:) When the general assembly in the discharge of this duty has not transcended this power, though it may have performed its duty verv imperfectly, its act is valid. (Id. p. 477.) And then the case proceeds to discuss the cjuestions of compactness and population, pursuant to the constitution of Illinois. I wish to introduce further in this connection a citation from a decision of the supreme court of the State of Ohio. I have the case at hand, which is in 48 Ohio. The principle announced in that case is precisely the principle announcecl in 79 Virginia in Wise v. Bigger. The case cited is Campbell's case, and the citation is taken from the syllabus. Where the governor, auditor, and secretary of state, or a majority of them, as the board created by section 11 of Article XI of the constitution, for the decennial appor- tionment of the State for members of the general assembly, have made the apportion- ment, they can not be required by mandamus, or otherwise, to make another appor- tionment, unless the apportionment as made, so far disregards the principles pre- scribed by the constitution as to warrant the court in saying it is no apportionment, and should be treated as a nullity. The apportionment made by the board, concurred in by the auditor and secretary of state, at the session of the board held April 13, 1891, 102 PARSONS VS. SAUNDEES. does not violate any of the principles prescribed by the constitution, and is a valid apportionment. This apportionment was assailed as violative of the constitution of Ohio, on the ground that it was gerrymander; that the legislative discretion had been unwisely exercised. But see the answer of the court on pages 437 and 442. It is not sufficient for us to be of opinion that we could make a better apportion- ment than has been made by the board. For us to interfere and direct another apportionment, the apportionment must so far violate the constitution as to enable us to say.that what has been done is no apportionment at all. (Id., p. 437.) Whether the discretion imposed has been wisely or unwisely exercised, in this instance, is immaterial. The board had the power to make the apportionment. For the wisdom or unwisdom of what they have done, within the limits of the power conferred, they are answerable to the Rectors of the State and to no one else. (Id., p. 442.) Mr. Carrico. May I ask you this question ? In what respect does the act taking Floyd County out of the Fifth district conflict with the constitutional provision which says that the districts shall be com- posed of contiguous territory, and as equal as practicable in popu- lation ? Mr. Saunders. According to the argument of your associate this question is a federal one, and if that contention is well taken, the constitution of Virginia is foreign to this case. Your associate further maintained that this is a question of power. If that be true, then we should consider whether or not we have the authority to make apportionments and not whether a particular apportionment is a reasonable or an unreasonable one. But this does not mean that if I could bring before this committee the considerations which moved the Virgmia legislature when it passed this act I would not be able to satisfy them that in all respects it was a proper act apart from any question of constitutional authority. But we are precluded from taking up that inquiry. Hence let us consider the question of power. If the legislature possessed the power to make apportion- ments, then it is not a matter of pertinent inquiry whether the appor- tionment under consideration was subject to criticism. We are con- cerned with the power of the courts to compel the exercise of legis- lative discretion. For us to adjudge the act unconstitutional and declare it void would, in my judgment, be a most unwise construction, and would be to arrogate a power of interference as dangerous in the precedent as it seems unwarranted by law. (Carter v. Rice, p. 512.) The decision of the legislature, in the exercise of discretion as to the apportionment of senatorial districts, is final and not subject to review by the courts. Yet jurisdic- tion exists in the courts to determine whether or not the statute is within such dis- cretion. (People V. Thompson, 155 111., p. 451.) The moment a court ventures to substitute its own judgment for that of the legislature in any case where the constitution has vested the legislature with power over the subject, it ventures upon a field where it is impossible to set limits to its authority, and where its dis- cretion alone will measure the extent of its interference. (60 111., p. 86; Cooley's Constitutional Limitations, p. 200.) There is a great difference in saying whether the principle of compactness has been applied at all, or whether the nearest practical approximation to perfect compactness has been attained. The first the courts can determine, the latter is for the legislature. (People V. Thompson, 155 111., p. 481.) PARSONS VS. SAUNDERS. 103 No district, unless a circle or a square, could be so compact that it could not be made more so. (Id., 482.) As much as the disposition of the legislative majority to obtain an undue partisan advantaa;e by senatorial apportionment at the expense of equality in representation is to be deplored, the evil can not be remedied by the courts so long as the power to commit it is left in the body on which the duty to make the apportionment is imposed. (People v. Thompson, 155 111., p. 485.) This is the crux of the whole matter, whether this final power of discretion shall rest with the legislature or shall be exercised by the courts in making apj^ortionments. Mr. Nelson. I want to get your argument, and keep it constantly in mind, to the question I gave you as to a concrete illustration of no apportionment at all. You gave me a gross violation as one, but now you deny it entirely. You say that we are not to look into that. Mr. Saunders. My answer to Mr. Carrico was in respect to a line of thought that he desired me to take up with res])ect to the Virginia constitution. 1 say that the act of 1908 is so far from the line of nullity, that it is not necessary for the committee to inquire into the details of that act in the respect of compactness and contiguity. In both particulars the act is constitutional. Mr. Nelson. Su})posing the counties were not contiguous at all; would that be a bar from looking into it ? Mr. Saunders. Your question suggests a very different situation from any in this case. All the courts maintain that when a constitu- tion requires that the counties of a district shall touch or that each district shall have a prescribed minimum of population, no exercise of discretion is called for. If the counties do not touch at all, or if the prescribed minimum is not afforded, the act will be avoided — all the courts hold this — but when the words, as nearly as may be, or kin- dred expressions are used in respect to compactness and population, the widest range of variation in these particulars is permitted to the legislature before the courts of New York, and otlier States cited deem that a court can avoid a legislative apportionment. In the first situation supposed the legislature is to do a ministerial act. The courts draw the distinction I have made in the cases which I have cited and upon which I rely. They say, for instance, that if the con- stitution of a State prescribes that in each district there shall be a population of 150,00(3 or that there shall be six counties and the legis- lature undertakes to make a district of four counties or one with a population of 125,000, then in a case of that sort there has been a failure to discharge a ministerial duty, and the act is void; but when a constitution prescribes that the districts shall be compact, or as nearly equal as mav be in population, they hold further that the court can not prescribe a rule of mathematical conformity to be followed by the legislature. Such action on their part would be to eliminate the discretion of the legislature antl set up a supervisory discretion in the courts, which those tribunals ought not to exercise in matters of this character. Mr. Nelson. I may be somewhat obtuse about this, but I would like to have your thought along this line. Have you a right to look into the use of a discretionary power at all ? If so, is it a question of degree with you ? Mr. Saunders. I would say, frankly, it is. I do not believe, so long as you can say of an apportionment in Virginia merely that it is not fair, or that it is unjust, or that it is not such an apportionment as you would make under similar conditions, that you have reached the 104 PARSONS vs. SAUNDERS. limit of constitutionality. In order to avoid the act you must be able to say in the terms of the cases cited : ' ' This is not an apportion- ment at all, it is a nullity. Mr. Howell. When the court exercised the power of apportion- ment in 1906 with respect to the Fifth and Sixth districts, there seemed to be an inequality of apportionment and a lack of compact- ness of contiguous territory, and the legislature subsequently, with that disparity existing, goes to work and passes an apportionment increasing the disparity of population. Mr. Saunders. Yes; that is a correct statement of fact, but I maintain that the legislature of my State merely did what it had the legal right to do. I heard a great deal on yesterday about the unit of population to be considered in the make-up of the districts. I do not find that the States have practically regarded this unit in forming their districts. Hence it would seem that they have not considered that they were required to conform to it. Take the State of New York. As I pointed out on yesterday, the disparities between its districts are far greater than any that we find in Virginia. It has one district with 160,000, and another district with 450,000 popula- tion. I do not find that the matter of population seems to cut any figure, in the practical construction of congressional districts by the States, anywhere in the United States. If Virginia has the right to arrange her districts so that in the judgment of her legislature an arrangement is efi^ected which will promote the best interests of her people, I do not see that such divergencies from the so-called unit, as exist in our present apportionment, are a matter of material consid- eration. Mr. Thurston. I shall insist, and I will give you the benefit of it right now, that the legislature of Virginia never apportioned the State under their constitution; that this act which we have been calling the apportionment act was not an apportionment act, but was simply an act attempting to destroy an apportionment already made. Mr. Saunders. Well, so far as that is concerned, every act which rearranges the districts is an act of apportionment. You may insist that one exercise of the power of apportionment exhausts the power of the State in this respect, but it is not even a plausible view that the second act is not an act of apportionment. I submit that the proposi- tion that the second act is not as much a rearrangement of the dis- tricts as the prior act is one which has no basis of authority in any of the authorities cited. For a hundred years the States have been rearranging their districts, at their pleasure, without let or hindrance from any quarter. Now, what does this case further say: For the wisdom or unwisdom of what they have done, within the limits of the power conferred, they are answerable to the electors of the State and to no one else. (48 Ohio, p. 442.) In other words, this case repudiates the proposition that the courts should undertake to be a cure-all for every evil, or mischief of which an individual or a community may complain. The courts are doing a great work within their sphere, but the hope of the Republic is not necessarily in these tribunals. There was a time in English history when the rules and established decisions of the courts had to be over- turned in the interests of human liberty. PARSONS VS. SAUNDERS. 105 There are many questions which for their ultimate sokition must be left to the ))eople. In my view this is one of them. Counsel for contestant say that they filed some newspaper editorials critical of the act of 1908, which warned the legislature that they were treading on perilous ground; that the peo})le would defeat them. If this be true, why is not contestant satisfied with the situa- tion ? We have played into his hands. I may well say to contest- ant, you are not consistent. If you are satisfied that the people will rebuke this action of the legislature, why not await and abide their decision ? Why did you take your chances at the polls, and failino; there, ask Congress to do what the voters would not do, namely, give you a seat in Congress ? Why did you not apply to the supreme court of Virginia to avoid an act wdiich you aver is plainly unconstitutional? Our supreme court is vested with authority to hear your case and w^ould have entertained your apjilication. Wliy did you not apply to it and thus save this committee the consumption of public time, which has been required for the hearing of this case, as well as save the country at large the expenditure of money which this case has involvetl ? You took that appeal to the people which your new^sj)aper authorities declared would be decided in your favor. Why have you not been satisfied to abide their decision ? Now, I desire to call the attention of the committee to a case in our supreme court that interpreted the Virginia constitution. Mr. Montague said on yesterday tliat he was going to show all sorts of things about tliat (k^cision. He really made me apprehensive over a case that I regarded as supremely autlioritative ; but when he came to actually discuss the case he walkeTDi-^T!S. 161 I desire now to take up another legal phase of this case. I stated to the committee heretofore that the law of Virginia does not require a man to be on the tax list in order to vote. I said that I would undertake to satisfy the committee on that proposition by an appli- cation to the constitution of the ordinary principles of construction, supported by the express decisions of some of our courts. This is the provision of the constitution which affords a citizen the right to vote: Sec. 21. Conditions iiiuh-r wliich parties duly ivjiisttnd shall have the right to vote: Any person registered under either of the last two seetions shall have the right to ^•()te for member of the general assembly and all officers elective by the people, sub- ject to the following conditions: That he, unless exempted by section 22, shall, a.s a ))rerequisite to the right to vote, after the first day of January, 1904, personally pay, at least six months prior to the election, all state poll taxes assessed or assessable against him under this constitution during the three years next preceding that in which he offers to vote: Provided, That if he register after the first day of January, 1904, he shall, unless physically unable, prepare and deposit his ballot without aid on such printed form as the law may prescribe; but any voter registered prior to that date may be aided in the preparation of his ballot by such officer of the election as he may designate. Looking to the title of the section, it will be noted that it is en- titled: Conditions under which parties shall have the right to vote. Looking to the body of the section, it will be perceived that the right is afforded upon the payment of certain taxes. The citizen is re- quired to "personally pay, at least six months prior to the election, all state poll taxes assessed or assessable against him." When he shall have done that, he is thereby clothed with the right to vote. The right to vote is given to the individual by the organic law of our State just so soon as he shall have complied with the requirements relating to the payment of his poll taxes. These are the taxes as- sessed or assessable against him during the three years next pre- ceding that in which he offers to vote. This section saj^s that having paid these taxes, lie is thereby ipso facto invested with the right to vote for members of the general assembly. There is no reciuirement that he shall do anything else. No further action on his part is necessary in order that he may be invested with this great right of suffrage which has been the subject of struggle on the part of our race for hundreds of years. The moment the taxes are paid as pre- scribed the right to vote thereby attaches. Mr. Thurston. Has the legislature the right to prescribe the proof that shall be made ? Mr. Saunders. No, sir; not so as to make it a prerequisite to the right to vote. Mr. Thurston. That is where we differ. Mr. Saunders. Of course, 1 understand that that is wdiere we differ. I say that the legislature has no such right. The constitution confers the absolute right of suffrage upon compliance with the prescribed con- ditions. 1 am astonished that these gentlemen who are always com- plaining about limitations on tlie right of suffrage in the South should now contend for a construction of the constitution which would limit suffrage in Virginia and make it more difhcult to vote; a con- struction that would hamper and restrict the voters in the exercise of their right. Wliy should such a construction be placed on our or- ganic law, when it is not a necessary construction, when it is a stniined and violent one 'I :}8069— 10 11 162 PAESOXS vs. SAU^v^DEES. ;Mr. Thuestox. We have numerous constitutions which prescribe the qualifications of an elector and stop there and say nothing about restrictions ; and yet the state legislatures have always been conceded to have the right to rec^uire registration at the time and manner and way in which they might see fit to prescribe it as the method of estab- lishing the facts. ]Mr. Saundees. All those things would depend upon the provisions of the organic law of those states. I stand upon the provision of our constitution which says that when you shall have done certain things you have the right to vote. We have provided in the constitution for registration. That, too, is a prerequisite. But when 3'ou are regis- tered and have paid your taxes you are entitled to vote. Now you want to take that right away. You want to make it dependent on something else. ^Ir. Thueston. What I refer to are constitutions that have not a word about registration; that provide the ciualifications of a man's right to vote ; that give him the absolute right ; but legislatures fix and establish the proof by which he shall prove the right to vote. !Mr. Sauxdees. Xo; it is registration to which you refer; it is nothing else ]\lr. Thuestox. Xo; that is only an illustration. ;Mr. Sauxdees. Yes, but that is a very dift'erent thing from saying that when a man has done the thing rec|uired by the constitution, which is the payment of the tax, he shall not be entitled to exercise his right until he has done something else of an entirely different character. ^Ir. Thurstox. Xo; if the constitution gives him an absolute right, he being 21 years of age and a citizen of the United States, to vote, if your contention is true the legislature has no right to go on further and prescribe that he shall register. ISIr. Sauxdees. Your contention may be sound with reference to the constitutions of the States to which you refer. I have not seen those decisions, and they have not been cited, but our constitution has provided for registration, and has further provided that when a citizen has registered and paid his taxes he shall be entitled to vote. I do not, of course, undertake to say that the constitution could not require a voter to be on the tax list. Such a rec{uirement could be made in the same or a subsequent section, but I maintain that it has not been done by the constitution, and if it has not been done by the constitution it has not been done by the legislature, for the statute is merel}^ a copy of the constitution. This is a ques- tion of constitutional interpretation. The provision relating to the tax list is found in the constitution itself. Air. Caeeico. Does not section 38 of the constitution, after section 21, provide that the man may vote after paying his poll tax, and does section .38 provide the manner of his proving it ? Mr. Sauxdees. Certainly. I am coming to that fact which con- stitutes the strongest feature of my contention that presence on the tax list is not a prerequisite to voting. This committee will never hold, as a matter of legal construction, that a right which is given by one part of the organic law which is clear will be taken away by virtue of the ambiguous declarations of a later section. The later section to which you refer does not say in specific terms that if you are not on the list you can not vote. While this section says that when you have paid your taxes, as required, you can vote. PARSONS VS. SAUNDERS. 163 Section 3articular point I shall speak as far as I am able from the standpoint of a disinterested historian, and not from the stand- point of a partisan interested in any political party of this country. It is a matter of common knowledge, never denied, universally ad- mitted, in one part of the country as well as in the other, that the constitution of the State of Virginia as it exists to-day, in common with the constitutions of several of the other States of this l^nion, was framed by the most crafty statesmanship and by the highest art of subtle and refined legal ability for the verv purpose of making it difficult, if not impossible, for a considerable portion of the electors of those respective States to vote. Mr. Saunders. Will the gentleman let me interrupt him in that connection ? Mr. Thurston. Yes. Mr. Saunders. I do not want to be misunderstood in that connec- tion. I want to be frank. In saying that it is now easy to vote in the State of Virginia, I do not mean to say that we did not have in mind to restrict the electorate by the action of our constitutional convention, if that could be done in a constitutional manner. I 188 PAESONS vs. SAUNDEES. frankly admit that we wished to restrict the number of negro voters if it could be done constitutionally. Mr. Thurston. I had no doubt that the gentleman would make that statement. Mr. KoEBLY. I would like to observe that Mr. Carrico made the statement here the other day, and it is in the record, I believe, that this operated to keep out a good many whites as well as blacks. Mr. Thurston. I do not believe he made that statement. Mr. Carrico. I did make that statement, and I stick to it. Mr. Thurston. Wliether that be true or not, it was evidently not the purpose of that constitution to do that. The intent and purpose was, and is, as I have stated. But I am not quarreling with it. I do not know that I would have acted differently from what the people of that section of the country did, myself, if I had been there under the same circumstances. But the purpose of these carefully framed constitutional provisions was to exclude from access to the ballot box and from participation in elections, and certainly from participation in the holding of office, a class of people considered undesirable, and possibly dangerous to the continuance of the exer- cise of political control in the State; so that when they came to frame this constitution they framed it very carefully, not for the purpose of extending the right of suffrage, not for the purpose of making it easy for the ordinary elector to vote, but they framed it in the interest of classes — I am not talking about color — and they made it as difficult as the ingenuity of man could contrive for certain classes of the people otherwise qualified to exercise intelligently and with equality their right to vote. They framed their constitution so as to evade the spirit of the fourteenth and fifteenth amendments, while at the same time it was so skillfully done that the courts of the country could not declare from the judgment seat that they directly violated the express provisions of those amendments. Now, I am not saying how that operates in the State of Virginia, whether it operates on more colored or more white people, but those constitutional provisions embodied in that constitutional requirement for registration and the manner in which it shall be performed were enacted for the purpose, and do have the effect, of making the exer- cise of the franchise in the State of Virginia most difficult and uncer- tain. Now, let us see if anywhere along the line of their legislation there is a single provision which points out an easy road, for the ordinary man in the community, to the polls where he desires to cast his ballot. The constitution provides that all persons residents of the State two years, of the county one year, and of the precinct thirty days, who have registered and paid their poll taxes as therein required, shall be lawful electors of the State of Virginia, making the matter of registration as therein required one of the original qualifications, or rather one of the essential elements, necessary to constitute a man an elector under their constitution. Now, that would be all right, that would be open and fair, and that would give everybody the same opportunity if they had, following that provision of the constitution, provided for a registration act that was easily open, easily accessible, and the provisions of which could be easily complied with by all the citizens of the State. I am not here to declaim against an educational qualification as a prerequisite PAKSONS VS. SAUNDERS. 189 to the exercise of the right of suffrao-e^ nor am I here especially to raise my voice against the proposition of a property cpialification as essen- tial to the exercise of the right of suffrage ; and yet in the last analysis, in a great popular government, where power comes from the people and where they are supposed to rule themselves, the rich man and the learned man and the strong man can care very well for themselves without exercising the privilege of his franchise, while the poor man and the ignorant man and the weak man have but little self-protection left in this government, except the right of the electoral franchise and the power that it gives to the individual. They provided in this con- stitution that all persons should have the right to register during the 3^ears 1902 and 1903, and not thereafter, first, who prior to the adop- tion of this constitution served in time of war in the Army or Navy of the United States or the Confederate States, or of any vState of the United States or of the Confederate States. Having in mind the political and historical history of the State and its present citizenship, we can readily see that that provision was de- signed to place upon the rolls without any other or additional pre- requisites or demand for other qualifications, a very, very large pro- portion of the dominant citizenship of that State, not speaking now^ of black or white but of the dominant political citizenship of that State. It was designed for that purpose, to prepare and establish A\ithin a short time an eternal registration list which would thereafter remain forever, and make it in the first instance the lever which should retain the electoral power in the hand of the dominant organization of the State of A^irginia for all time to come. I do not know on what theory of making the exercise of the elec- toral franchise easy it can be said that a man who fought under either flag in the civil war between the States should have any easier access to the polls than a man who did not fight. It can not be justified upon any other theory except that underlying its enactment was a desire and the intention and a purpose of maintaining the dominance of one organization in the State of Virginia, to place upon the perma- nent rolls of that State, in the first instance, so large a proportion of the people of that State who were certain to remain true to their political allegiance, that thereafter there could be no overturning of political supremacy in the State. Second, a person could register who owns property, upon which, for the year next preceding that in wdiich he offers to register, state taxes aggregating at least one dollar have been paid. I have said all that I care to say about that. Personally, I do not believe in a prop- erty qualification. I do not believe that a man who owns a jackass has any more right to vote than a man who does not, and I believe that when you take the situation of a man who owns a jackass and can vote and that of a man who does not own a jackass and who can not vote, it is a very doubtful proposition whether the man or the jackass is exercising the political franchise. But I say that these provisions were all put in there to secure political domination. I am not saying that they were put in there solely as against the colored vote in the State of Virginia. The same necessities have not existed ; the same conditions have not existed in the State of Virginia that have existed in some other States of this countrj^ wdiere, for reasons that I am not here to question, the dominant people of those States have felt compelled to enact constitutions and legislation that would exclude from the polls the great body of the electors of the State. 190 PAESONS VS. SAUNDERS. The next clause is that a person could register who was able to read any section of this constitution submitted to him by the officers of registration, and to give a reasonable explanation of the same. You will see that the first two qualifications were all that were necessary to enable persons to place themselves upon the permanent rolls of the State. Upon this last section I desire to comment just for a moment, and I would not have branched off onto this line of discussion at all if it had not been for the assertion based upon a question which seemed to indicate that there might be involved here a determination as to whether or not the policy of Virginia election legislation was intended to make the road to the polls straight and easy. Now, think for a moment what this provision is. We must deal with existing conditions as they are to-day, and as they were when this constitution was adopted. It has already been stated here, and it is known, that the entire state government of Virginia is in the hands of one party; that all the judges on the bench of the State of Virginia are members of one party. They are good men, and I do not charge that judges on the bench in their judicial capacities will act unjustly, intentionally, because of partisanship and outside influences, but I do know, and you know, that woven in the warp and the woof of every human character is partisan- ship, political, social, and domestic, that in a measure, and often in a large measure, guides and directs what are supposed to be the most deliberate judgments of men. The judges appoint the political council — I call it that — in every county or city of the State. There is no provision in that act that any one of this council shall be of a minority party; and you have heard statements here that as a matter of fact the party in power having the appointment of those election councils retains — appoints and retains — the members of their own party, as they have a right to do, a legal right to do; I do not question it. But I am showing how difficult they have made it for anybody, especially for a man not well up in educational advantages, to find his road to the polls. These political councils in each county appoint the registrars, and all of them. From the dominant party executives of the State to the judges placed upon the bench by the same dominant party, to the political councils of each county of the same dominant party, and down to the registrars, in fact, all the election machinery of the State of Virginia has been placed, and placed not for temporary use, but in the expectation of preserving its perpetuity, in the hands, and in the exclusive hands, of the members of the dominant party. Now, here is where the nigger is in the wood pile. I am not using that expression to refer to the question of black or white down there, but in a figura- tive sense. A person who was not an old soldier of the nation or of a State, or who had not paid a dollar tax on his property for the year before was required to he able to read any section of the constitution submitted to him by the officers of registration and to give a reason- ahle explanation of the same. Stop and think about that; what a power that put into the hands of the registrars of that State. The constitution provides that a man can not vote unless he is on the registration list. The registrar sits there as the sole judge. He is vested not with mere executive power, but with a judicial and discretionary power, after hearing this man read a section of the constitution, and after hearing his explanation PARSONS VS. SAUNDERS. 191 as to the meanino; of it, to decide whether he is qiiahhed to vote. He is vested witli an absolute, a complete, a final judicial and discretion- ary power Mr. Saunders. No, no. Mr. Thurston (continuino;). To decide that that man has ex- plained that section of the constitution accordino; to his satisfaction or not. Mr. Saunders. Pardon me, Senator; his power is not final. The voter had a rio;ht to appeal to the court. Mr. Thurston. Not final, because he may appeal to the court; but final for the purjiose of placing liis name on the registration book at that time, or of excluding him. Mr. Saunders. No, sir; if you will pardon me, anybody who is excluded as of that date had an absolute right of a])peal to the cir- cuit court. Mr. Thurston. Yes; I say it is a final power to enter up a judg- ment at the time, admitting or excluding the party from a place upon the registration book. It is true that the right of appeal is given to this poor man who has not been able to explain a section of the Constitution of the United States or of the constitution of the State of Virginia satisfactorily to a registrar before whom he has appeared; but what is that to the poor man? 'Wliat remedy is that to tlie man who may be excluded ? How many of us could satisfy a registrar in the State of Virginia as to the true intent and meaning of any section of the Constitution of the United States or of the constitution of the State of Virginia ? Why, Mr. Saunders has spent hours, even, attempting to convince this committee that he understands at last what the meaning of one particular section of the constitution of Virginia means, and I doubt if even Judge Saunders, with his persuasive, and I might say almost perpetual, eloquence, could convince against his will a registrar of an opposite party in an election contest that he understood a provi- sion of the constitution of the State of Virginia correctly so as to entitle him to be placed upon the rolls. Mr. KoRBLY. Mr. Thurston, do you maintain that the people of this country at large do not possess an adequate knowledge of their guaranteed rights under the Constitution? Mr. Thurston. No; but I claim this, that when you place it in the power of one man sitting as registrar, without any particular responsibility of office, without any penalty imposed upon him for deciding incorrectly, a political registrar, the creature of a political party, undoubtedly carr3'^ing into the exercise of his duties in that position whatever political bias he may have — when you place in his hands the power of saying that this man's explanation is correct or that that man's explanation is not correct, you place the most dan- gerous power in the hands of the most subordinate officer that I can conceive has ever been vested in an official, high or low, in this country; and, as a matter of fact, if those registrars desire to use their office for political advantage of their own political party, it is in their power to do it to an extent that would forever prevent a minority party in the State, or in any district of Virginia, from having an equal and fair opportunity at the polls. Mr. KoRBLY. I do not want to take up your time, but is that in the original preparation of the poll list ? 192 PARSONS vs. SAUNDEKS. Mr. Thurston. That is in the original preparation. Mr. KoRBLY. Afterwards can they not get on by making some sort of appHcation ? Mr. Saunders. If the Senator will permit me in this connection, I would say that the present law is absolutely different from that. Of course I do not want this to be taken out of Senator Thurston's time at all, but his argument has taken a direction absolutely unin- dicated by anything that has gone on here before. That we would enter upon a discussion of the constitution of Virginia with respect to its establishment, and the considerations which brought it about, was not indicated in the oral arguments that preceded hiin. I simply wish to say again, with respect to the election laws of Virginia, that what I said yesterday refers to present registrations. I did not dis- cuss registration under the constitution. The present provisions for getting on the registration books are easy. It is not difficult to pass the tests imposed for registration, and thereafter it is a mere matter of paying an annual tax of $1.50, all of which goes to the school fund for educational purposes. There has been no unfairness on the part of the registrars throughout the dis- trict in enforcing the law and admitting parties to registration. The evidence in the record for Henry County shows that the bulk of the new registrations in that county are Republicans. Quite a number of them are negroes. Mr. Thurston. I am not here criticising the right of the dominant party of the State of Virginia to enact these constitutional and statutory provisions, nor am I here insisting that in any particular case, up to the present time, any registrar has been biased or preju- diced in his judgment upon any case presented to him for his decision, but I am merely pointing out the proposition that when it is said that the dominant controlling partisans of the State of Virginia have endeavored to make it easy in that State for the body of its citizen- ship to find the way to the polls, I turn around and point to the provisions of the constitution, and their enactments of law, and I insist that they have endeavored to make it as easy as possible for the dominant and controlling faction, and as difficult and impossible as the ingenuity of man could devise, so far as the other people of the State are concerned. Now, I do not care to go into the question of what the existing pro- visions are as to the right of franchise. Under this provision as to the power of the registrar, in every county in the State* they were enabled to place upon the permanent rolls, to remain there unchal- lenged forever, practically the dominant political population of the State of Virginia, and what they have done since in reference to changing, or what is necessary now to be done, to get upon those rolls, is a matter of the utmost unimportance. Now I come to this proposition, which is in the case. You are con- fronted here with proof that tends to show that certain ballots were illegally cast and went into the ballot boxes and were counted. It is impossible for me in the scope of my argument to attempt to point out or refer you to a single instance, so far as the testimony is con- cerned, where it is shown that an illegal ballot went into a ballot box or was counted one way or the other. That, although it is very burdensome upon the membership of this committee, must be wroughl out by your own persistent examination of the testimony, aided, sc PABSONS VS. SAUNDERS. 193 lar as we have been able to aid you, by the analysis of votes of the individual cases prepared by either side and presented to you; but I take up the question, Has an illegal vote gone into the ballot box? Has just one gone into a ballot box? What is the eilect of it, and what is to be done with it? Judge Saunders admits that a vote cast by an}'^ man at tlie polls, whether he was on the registration book or on the tax-paid list or not, if in ('act he was dis([ualilied as an elector of the State, is an illegal ballot in the box and ought not to have been cast, and that you can estab- lish the fact of tlie disqualification of that voter by other proof than the mere fact of the registration list and the fact that he has voted. Now, if you find a single ballot in the box where the proof is definite that it was cast by a man not qualified under the constitution or laws of the State of Virginia to cast it, you must do something with it. Courts have not permitted thtit illegal ballots when discovered should determine the result of any election. The courts have held that when you find that one Ulegal ballot went into the box — most of the courts have held — tliat you have a right in a court to take testimony to show, if you can, how that man voted ; and if you can fairly determine that he voted in a particular way, that one ballot must be eliminated from the column of that side. Now, what proof is necessary to show this I will not take up the time to argue here, although I think I could state it very clearly; but I believe that the members of this committee — who are not only, I think, all practicing members of the bar, but, as is shoAvn by the very fact that they are here, must be very familiar with the consideration of problems involved in the elections carried on in the country — can determine, and this committee must determine, what character of proof and how much proof is necessary, besides the fact of finding the ballot in the box, as to how and for whom that par- ticular ballot was cast; and, as I said, if from the proof you find it was cast for any particular side, you must eliminate it from that side. But if you can not find from the evidence as to how that vote was cast or for whom it has been counted, the law still w^ill not tolerate that that ballot shall have any force in determining the result of that election, and therefore the courts have determined and decided, and I think by an unbroken line of authorities, that where illegal ballots are cast, and where it can not be determined satisfactorily as to how or for whom they were cast, those ballots must be rejected at each polling place pro rata from the votes cast for the two opposing candidates at those places. So that if at a poUing place three illegal votes were cast, and the vote at that poHing place was in the pro- portion of two to one for Smith as against Jones, you must deduct two of those votes from Smith and the other one from Jones. Mr. KoRBLY. Must you go into fractions to carry that out ? Mr. Thurston. The courts have done it. In the State of Nebraska they carried that out by a decision of our supreme court at one time, as nearly as I can now recollect it, that an election for one of our judges was carried by 1^^ votes, and by the apphcation of the very rule which I have just mentioned. Mr. KoRBLY. Let me ask you a question. Let us suppose they could decide it on the one vote; but suppose that the majority had been seven-sixteenths of one vote, would you say then that that :«069— 10 13 194 PARSONS VS. SAUNDEES. would have been a declaration of the majority ? I mean if the differ- ence between the two was onl}^ seven-sixteenths — that is, the total was only seven-sixteenths, or a fraction of one vote — would that constitute a majority? Mr. Thurston. On the whole case ? Mr. KoRBLY. Yes; suppose that in the Saunders-Parsons case the committee should determine that the difference was seven-sixteenths of a vote between them, could you say that there had been an election ? Mr. Thurston. You suggest a very interesting question, and I am not prepared to answer it. I am not prepared to say whether a frac- tional part of one vote can elect any man to office, although in our State we had one instance where the Senator-elect in our state legis- lature reported that he was elected by a unanimous majority, and it was found that he was elected by one vote. Now, those are the things that the committee must do if they find that illegal votes have been cast. Then the fact that a man was on the registration list is not conclusive proof that he was entitled to vote. The fact that he was on the tax-paid list is not conclusive proof that he was entitled to vote. He may have been disqualified, as a matter of fact, for three or four causes, and there are instances in the vast detail of this testimony of cases of each particular kind. Notwithstanding the tax-paid list, pro or con, he may not have paid his taxes for three years and the proof may so establish the fact. In that case he would be an illegal voter. He may not have lived in the State two years at the time of the election. In that case he would be an illegal voter. He may not have lived in his precinct a sufficient length of time to entitle him to vote, and in that case he would be an illegal voter. He may have removed from the precinct where he for- merly voted and where he now casts his ballot, and in that case he would be an illegal voter. All the votes cast in those cases must be rejected, by the application of one or the other of the rules I have suggested, by this committee. Of course the great number of votes claimed to be illegally cast in this case are in alleged cases where the voters had not paid their poll taxes under the provisions of the constitution, and it is to the question, first, how shall the proof be taken to show that men who actually voted had or had not paid their poll tax, and had or had not complied with the provisions of the Virginia constitution. I am not intending to discuss just at this moment the question as to whether or not the poll-tax list is conclusive proof at the polls both as to the payment of taxes by the men upon the list and of the nonpayment by others ; but I am going to discuss just now, not as a prevoting requisite, but as a question of proper proof in the case, to establish the fact that a man had not qualified himself by paying his taxes, as to what this tax-paid list as a matter of evidence before this committee is. The law provides, and I want to call attention to it, both for the purpose of this point and of the other one that I shall make further on with regard to this list, that the county treasurer shall make a list. Of what ? Not of persons who have paid their poll taxes as required by the constitution, but of all persons who have paid their poll taxes. That is the language of the statute. That is the direction to the county treasurer. It is mandatory upon him that he shall make a list of all the persons who have paid their taxes, and that list, by the law, is made evidence of all it contains. If it were not expressly provided by law PARSONS VS. SAUNDERS. 195 that this should be evidence at all, it is still evidence as a public record required to be kept under the laws and in which the treasurer of the county is under a mandate to place upon that list the names of all persons who have paid their taxes in accordance with the constitution of the State of Virginia. Therefore, if there were no statute making it conclusive evidence or evidence at all, yet when you come to attempt to prove that a man has not paid his tax, the first evidence, the best evidence, is the record prepared by the direction of the constitution of the State of Virginia. You would say, "Wliy not go to the treasurer. His records would be the best evidence. Go to the books of the treas- urer." Why would they be the best evidence? The law requires him to keep books, showing upon those books the men who have paid taxes; but the law expressly requires him to make a further public record in a list which he is compelled to certify to, which con- tains the names of all persons who have paid their taxes. Then, leaving out the effect of that tax list at the polls, when you come to attempt to prove the fact that a man has not paid his taxes, is it not the first, is it not the best, is it not prima facie, evidence that a man whose name is not upon that tax list has not paid his taxes? The rule was invoked here yesterday with respect to this same tax list, and in respect to the action of the judges of elections, that the law presumes that every public officer has done his duty as required by the law, and that until there is proof to the contrary, it must be held that whatever action has been taken officially by a public officer has been a full compliance with the laws under which he acts, and must be so held until there is testimony to the contrary. Therefore this list which the law requires him to make, of all the persons who have paid their taxes, must be, in a court, the official, prima facie test evidence that a man whose name is not thereon has not paid his taxes; and the burden of proof is shifted from the person asserting that the voter has not paid his tax, the burden is shifted then to the other side, to establish that that official list made under the direction and mandatory provision of the law, is not in fact a full and exact compliance with the law by the treasurer. That is very important in this case, because pursuing that line of inquiry and believing that that official tax list thus required to be kept and certified, and to contain the names of all those who have paid their taxes was the best, was the official, and must be prima racie evidence of the fact that it does contain all the names of all the men who have paid their taxes, we have introduced those lists in evidence as proof, as prima facie proof, as all the proof we are required to present until some one attacks the prima facie proof thus presented, of the fact that men not upon those lists made up and certified to by the officers of their county — the county treasurers — those lists which must be full and complete if the law is complied with, have not paid their taxes; and that is a prima facie case, and with that tax list here and the poll book here, and the poll book showing that John Smith voted at a certain precinct, and the tax list of that precinct showing that his name is not upon it, there is a prima facie case which can not be questioned except by proof that the man in fact actually had paid his taxes; and the burden of proof is shifted. And so I say, without any fear of being overruled by this committee, that under the provision of this law which makes this tax list a public 196 PARSONS vs. SAUNDERS. record, the preparation and certification of it is an official act under a requirement that tliis sworn officer place therein the names of all persons who had paid their taxes; that that list, regardless of what it is at the polls, is proof, and in court is prima facie evidence for anybody who may seek to invoke such testimony, that a man not upon that tax list was not a tax-paid voter at the time of that certifi- cation to that list ; and the burden of proof shifts, and the other side must prove to the contrary. Now, it is very important in this case, because in my judgment, after running down all the testimony as carefully as I could, and with the assistance of my associates in that matter, I have reached the conclusion in my own mind that there were cast, and will be found to have been cast and counted, far more than enough ballots by persons who did not appear upon the tax lists at their respective polls, to more than wipe out, and a great deal more than wipe out the certified majority in favor of Mr. Saunders, and that number is sufficient, if they are excluded from consideration and count, by either of the processes I have suggested, to show that Mr. Parsons did in fact receive a clear majority of the legal votes cast in that district. Now having stated my position on this, 1 am not going to extend my remarks along that line any further, but I come to the next question, which goes to this same matter of how certain votes before the committee shall be counted. There were not enough votes, as you have discovered, cast where this man Mathew's name was left on the ballot and the name of one of the real candidates was left there with it, unscratched — there are not enough of those ballots either pro or con — to determine in and of themselves the question as to which candidate received a majority of votes in that district; but there is a considerable balance of those votes which must go to the credit of Mr. Parsons if the committee shall hold that the name of Mathew had no right to be upon the bal- lot; 'and in that view of the case the question is important for your decision, because if the apparent majority shown on the official re- turns for Mr. Saunders is cut down by the allowance to Mr. Parsons of these Mathew-Parsons votes, then of course it is not necessary for us that the committee shall find as many votes illegally cast and to be eliminated from the result — I mean illegally for other reasons than the Mathew-Parsons situation — it is not necessary to find so many of them in our favor, in order to give us a decision upon the question as to who did receive the actual majority of the votes cast. I confess that a discussion or a presentation of this question of what shall be done in the State of Virginia or anywhere else where the name of an insane man creeps upon the ballot, is new to me. I think it is new to the world. I have not been able to find any case where anything similar to that situation has ever been presented to a court. It must remain a question of first impressions, to be decided by the best application of a legal judgment: Mr. KoRBLY. Let me ask you a question. If Elliott Mathew had been arrested or taken into custody for the purpose of taking him back to the asylum, and he had sued out a writ of habeas corpus, the question of his identity would have been raised, would it not, neces- sarily ? Mr. Thurston. Undoubtedly. PABSONS VS. SAUNDERS. 197 Mr. KoRBF.Y. Any notice that was given to the secretary of state would raise the same question of identity, would it not, whether that was the particular Elliott Mathew that was insane ? Mr. Thurston. I think so; yes. It might not appear to the voters of the county, knowing nothing about the circumstances, even to those who knew an insane Elliott Mathew, that the name on their ballot was the name of that insane person. Mr. KoRBLY. I mean with regard to the action of the secretary of state ? Mr. Thurston. Yes; I will come down to that. Now, it is per- haps true that under the laws of Virginia — which are most remark- able in that respect, and I think this represents perhaps the only case of apparent thoughtlessness and lack of extreme caution in the preparation of their election laws — it is possible for any man,, by a mere request to the secretary of state in writing, witnessed by two persons, to have his name placed upon the official ballot. That is a most unwise provision. I think we will all have to admit that. See what the consequences might be out in your State, Mr. Korbly, or in your district. See what tremendous complications could arise if the opposition or somebod}^ intending to mix up the whole ques- tion of the ballot and confuse voters should get a dozen or fifteen or twenty or thirty or forty men to send in notices that they were candidates for Congress, and all they would have to do would be to sign a notice of that kind and get two signatures to it. Mr. Korbly. The same thing could be accomplished by a little bit harder process; not much harder. Mr. Thurston. Oh, in most of the States there is a requirement that a person must have had a certain proportion of the votes cast at the last election to go on as other than a regular party candidate, or that any person to become an independent candidate must have a petition signed by a certain number of persons or by a certain per- centage of the persons who cast ballots at the last election. There are various legislative provisions of that kind in the various States. Mr. KoRBLY'. There was one case referred to here of a man in New York who had a petition containing 2,000 names and he got only 1,100 votes at the election. Mr. Thurston. He probably got all he deserved going on the ticket in that way. [Laughter.] All I am saying is that I am not criticising this law, and I am not saying that the question whether it is a good or a bad law has anything to do with the decision of this question. I just remarked that, in m}^ judgment, it is a dangerous law ever to have been enacted, and it leaves the opportunity in the hands of every scheming politician to do these things, and by that 1 do not refer to the scheming politicians of either party. I say it does place in their hands the power to confuse and to disturb and perhaps to change the result of any election by getting a dozen or fifteen or twenty names, perhaps, on the same ticket for Congress. It is prob- able, and I will admit it, that under this law a notice which went in to the secretary of state, signed by an individual and witnessed by two witnesses, compels the secretary of state to put the name of that man on the official ballot, with a proviso, however, and I insist upon the proviso, and before I state the proviso I will give the reasons why I place the proviso there as a matter of legal construction. 198 PAESONS VS. SAUNDEES. I can not attempt to turn to the law and quote its exact language, but the effect of it is that "any person" maj file with the secretary of state his written notice that he is a candidate for Congress; that "any person" may do so. Now, under the laws of Virginia, which have been sufficiently referred to here, a man must have certain quali- fications in order to make him a legal voter. He is disqualified by express provision if he is a lunatic. In order to hold any office in that State, and therefore in order 'to be a lawful candidate for any office in that State, he must be a qualified voter at the time. I think the law here is clear and explicit, and it furnishes another illustration of the proposition that where the law defines and specifies a certain quali- fication as prerequisite for anything there can be no other qualifica- tion except the one specified in the act; and that when you say that every qualified elector shall be eligible to any office in the State, you say, by the natural and inevitable intendment of the act, that no one but a qualified voter shall be a candidate or hold an office. That statutory interpretation runs into another branch of this case. I will not discuss that now, but I lay down here for the thought of the committee from this time on that wherever the legislature pro- vides that a certain thing shall constitute a qualification for office, that wherever they provide that a certain official thing shall be evi- dence of what it contains, wherever they provide that a certain thing may be done in a certain way, it is as much the legislative in- tent and must be read into the act as if it had been written in the act itself; that the legislature by that enactment expressly prohibited the doing, or the proof, or the prerequisite, in any other way than that defined by the statute. So a candidate for office must have been a qualified elector. Now, I insist that where the statute of Virginia says that any per- son may notify the secretary of state and be placed upon that list as a candidate for an office at a state election, that word "person" as there used in the law means a person qualified to run for that particular office, and it can mean nothing else. It does not mean a woman, it does not mean a minor, it does not mean an alien, it does not mean a man disqualified, it does not mean a convict, and it does not mean a man disqualified in any way for holding office in the State of Virginia. It goes without saying that a man who is disqualified for an office can not be in a legal way a candidate for that office. It says " any person " may apply, and it means — and it can not mean anything else — a per- son who has the qualifications of a candidate for that office or the qualifications to hold that office if the people shall elect him thereto. That term "person" can not mean anything else. Now, what I say right there is this, and it is pertinent and proper, that when the law requires the secretary of state to place a name which is sent to him in a notice of that character upon the ticket as a candidate, there is a proviso attached, in intendment of law, that he must be satisfied before he j)laces that name upon the list that the man who sends that notice in to him is qualified to be a candidate for that position or to hold that office if he shall be elected to it. No one will contend here for a moment but that the secretary of state, if a notice of that kind went in there signed by a woman, would have the right to refuse to place her name upon the ticket. And why? Not because of the fact that she is not a person, for a woman is a person, and a citizen also. If the term "person" does PARSONS VS. SAUNDERS. 199 not mean here a person qualified to hold that office, it means a woman, or it means a child, or it means an alien, or it means a con- vict, or it means an insane man. You can not draw any other dis- tinction. It means one or the other. If the name of a woman comes in the secretary of state is compelled to refuse to put that name on the list. Why '( Because it has come to his official notice that the person who is attempting- to place her name upon the ballot is not qualified as a candidate or is not qualified for the office. Now, if you concede that, you are bound to ^o a step further. If the fact being apparent on that notice that the person signing it is not qualified to hold the office or to run for it proliibits the secretary of state from placing the name on the official ballot, you must go with me a step further and say that it is incumbent upon the secre- tary of state to ascertain, before he permits that name to go upon the ballots of his State, that the person whose name he is putting on there is qualified to run for that office and to hold it. Mr. Saunders. Qualified, in that connection, according to what? the constitution of Virginia, or the Constitution of the United States ? Mr. Thurston. Qualified according to the constitution of the State of Virginia. Mr. Saunders. Can a State add disqualifications to those imposed by the Constitution of the United States, in section 2 ? Mr. Thurston. I am taking this position, and I might as well state it now and have it over with, that so far as the question of Congress passing upon a case of the kind suggested is concerned, as to whether or not a man may be eligible to office under the laws of Virginia, this Congress sitting as a court — and I conceive it to be a court in an elec- tion case, no more, no less— holding under the Constitution all judicial power necessary for the determination of the case before it. Congress in its judicial capacity, supremely and completely exercising the judi- cial powers of the Constitution in the particular case, has just the same authority that any court, state or federal, has to pass upon every question and determine every question necessarily or properly arising in that case, wdiether that question be the true construction of the Constitution of the United States or the true construction of an act of Congress, or whether it be the true construction of the consti- tution of a State or of a statute of a State. In that particular case, having that all-reaching and exclusive judicial power, it has a judicial right to pass upon every question properly arising in the case, whether it goes to the construction or interpretation of an act, national or State in its character. Mr. Saunders. I agree to that proposition, Senator. You mean that the}^ have a right to pass upon the question, judicially, accord- ing to the rules of law ? Mr. Thurston. Yes. Mr. KoRBT.Y. The question I was going to ask was whether the law of Virginia should control, or the (Constitution of the United States, in the determination of these questions ? Mr. Thurston. T do not read in the Constitution of the United States that a State is prohibited from fixing the quaHfications of an elector of that State. I do not read in the Constitution of the United States that a State is prohibited from defining the qvialification of a man who can be a cancficlate for office: not the qualification as to whether or not a man can hold a seat in Congress, but to determine 200 PARSONS vs. SAUNDERS. the question as to wliether or not he can go upon the ballot in the State as a candidate for that office. Mr. KoRBLY. Governor Montague said the other day, and I believe he was right, that a Representative in the lower House of Congress not only represents the people of his State but the people of all the States. Now, do you contend that the State of Virginia has a right to limit the qualification for a Representative in the lower House of Congress as against the regulations set up b}^ Congress ? Is not that a little arbitrary restriction ? Mr. Thurston. I do not. I do not contend for anything of that kind; but I do contend that as far as the procedure and the manner of conducting the election is concerned, the way in which a name shall get upon the ticket, what is necessary to be done in order to entitle that name to be placed upon the ticket, what is essential in the first instance to the qualification of candidacy, I insist that that is within the power of the State unless Congress, or until Congress sees fit to exercise its constitutional power and takes that matter out of the hands of the State and legislates for itself. Now, for instance, every man, you will say, has a right to a seat in Congress who possesses those qualifications fixed in the Constitution; and yet in many, and many, and many States there is a provision that no man can go upon the ticket who is not nominated by a political convention of a recognized party in the State, unless he presents, as a prerequisite to the qualification of candidacy, a peti- tion signed, we will say, by a thousand or by 2,000 or 10,000 people. The law excludes him from the ticket as a candidate on that ticket unless he complies with those provisions of the local law. Is that violative of the enactment of Congress as to what qualification a man shall possess when he comes here ? The Chairman. Had Elliott Mathew been nominated in the fifth judicial district, would not the secretary of state have been com- pelled to leave him off of the ticket because of his insanity ? Mr. Thurston. The law of Virginia does not recognize party nom- inations. That is a question I will not go into at this time. But if it did, then even a party nomination of a man disqualified for candi- dacy must be respected. Mr. Saunders. Before you go further, may I ask you a purely legal question ? Mr. Thurston. Yes, sir. Mr. Saunders. By the constitutions of some States the judges of the supreme court are ineligible for Congress. For instance, as I showed on yesterday, a justice of the supreme court of the State of Kansas was held ineligible to a seat in Congress. Congress held that he was eligible. Do you think that the State of Kansas could have said to that man, "Well, you are eligible to a seat in Congress, but we are not going to let you run so that you can present your claims to a seat to that body? Is not that getting at a result indirectly instead of directly? Mr. Thurston. Yes, there is a wide and clear distinction between the question of eligibility to a seat in Congress and the regulations which may be lawfully prescribed by a State as to the manner in which and the time when a man may get his name upon the official ballot of the State and be voted for. PARSONS VS. SAUNDERS. 201 Mr. KoRBLY. The very question that is involved liere is the ques- tion of liis eh^ibiHty to a seat in Congress. Mr. Thurston. No, no. Mr. KoRBLY. And not getting on the baUot. Mr. Thurston. No, I beg your pardon; not fiom m}' standpoint. There is no (juestion hei'e involved as to the eligibility to the Congress of the United States. You may have dead men here if you want to. Mr. KoRBLY. There are some here. Mr. Thurston. That may be; I would not dare to say that. It has already been admitted, I think, that there have been insane Members. But this question does not, in my judgment, go to the question of the eligibility of a man to a seat in Congress; it goes to the question as to whether or not he has in a legal way been placed upon the ballot, so that he is a candidate on that ballot. You might as w^ell say that the State can not prescribe anj" method or manner of voting because, unless a member qualified for a seat in Congress com- plies with those requirements, he can not get voted for. You might just as well say that the State has no power to pass any legislation as to the manner of the conduct of an election, or as to how a man can get his name before the people. Mr. Saunders. Just one question, if you will pardon me, in that connection. As a matter of fact, suppose that there was no official ballot, and suppose a district, as a matter of fact, elected a man who was ineligible by the laws of that State; they could not keep from allowing him to come uj) here and take a seat, could they? Mr. Thurston. No, sir. Mr. Saunders. Then, as a matter of fact, we find, whatever the questions you raise ma}^ be, that Mathew's name is on those ballots; the voters", as a matter of fact, could vote for him, and some voters did vote for him. Mr. Thurston. Your speculative question makes me think a good deal of the little girl that was found crying, and on being urged to tell what was the matter she told her mother that she got to supposing that she v/as grown up, and then she sup})osed that she was engaged to be manied, and then she sup})osed that she got married, and then she supposed that she had a baby, and then she supposed that the baby died, and that was what made her cry. But irrespective of supposition, I will answer that. If you have no condition in your election statutes as to how a man may place himself in the attitude of being voted for at your election, people can do as the}^ please, and it will be up to Congress then to pass upon the question whether a man is qualified to sit in this body. The Chairman. Senator, I just want to suggest a rather curious situation. Following Judge Saunders's argument for a moment, and assuming him to be, as we all know him to be, absolutely and highh' qualified for a position in Congress, might it not be under his argu- ment that if he went and wrote a letter to the Secretary of State and did not have the two attesting witnesses, jet being unquestionably qualified for a seat in Congress, he might be heard to say that the Secretary of the Commonwealth did him an injustice in leaving him off of the ballot ? Mr. Thurston. He must com])ly with the law, and the whole (jues- tion is whether the State has the right to prescribe these laws which resrulate the manner of holding an election. 202 PARSONS vs. SAUNDERS. The Chairman. You do not take the position that if the people in the district had elected Elliott Mathew by a clear majority, and since that time he had gone before a proper court of the State of Vir- ginia and had been restored to his sanity and adjudged sane by the court there, and he was here now asking for a seat, we would have a right to seat him, do you ? Mr. Thurston. No; I wilJ go a step further. I do not care whether his sanity had been restored judicially or actually. The Chairman. ¥/e could seat him ? Mr. Thurston. You could seat him; but he had no right to go on that ballot unless he complied with the law. That is the point. Now, going back to that a moment, I insist that the word "person" means a person who is under the laws of Virginia capable of being a candidate for office, and that if the notice had been signed by a woman, the secretary of state would not have been authorized to put her name on that list, although she is a person but not an elector and not qualified to be a candidate for office; that if that notice had come to him with the name of a man whom he knew to be an alien just landed in the United States, he would not have been authorized to have placed that name upon the official ballot, and for the same reason; that if that notice had come to him from a person whom he knew to be an infant, not yet 21 years of age, he would have had no right to place the name of that person upon the ballot. If that be true, then there was a duty under this law imposed upon him to first determine as to whether or not the person sending in this notice was a person such as was intended under the statutes of Virginia, might send in that notice. Mr. KoRBLY. A man might not be an infant, and still not be eli- gible to a seat in Congress under any possible rules of construction. Mr. Thurston. I understand that; but so far as my contention is concerned, I am eliminating the discussion of this question of eligi- bility to a seat; I am discussing the question of whether or not that name had a right to go on the ballot, not the question of whether the people had a right to vote for him. I do not have to go to the point to see what the effect is of any name placed by an elector on that ballot at the polls, whether that is the name of 'an insane person, or a woman, or anybody else. I am presenting the question whether his name had a right to be on that official ballot, and that is the only question. My position is that the secretary of state under that law must ascertain — and it is an easy thing for him to ascertain — whether the person so notifying him is qualified to be a candidate for office, and if that information comes to him upon the face of that notice, or if it comes to him of his own knowledge, or if it comes to him from seeking, or if it comes to him from suggestion from outside parties, it must be true that where he has the knowledge in time to have that name eliminated or not on the ballot at the election morning, it is his duty to see to it that that name does not go to the polling places, and thereby confuse the electors of the State in that manner. So I say that he had no right to place this name upon the ballot. So I say further, and I only' refer to it just for a moment, because time is running against me ; this notice sent in by Elliott Mathew was no notice at all. It was the act of a man incapacitated at law to serve a notice of that kind, to execute a notice of that Idnd, to give a notice of that kind. In law it was the act of a person dead at law, so far as his execution of any instrument of a legal character was concerned. PARSONS VS. SAUNDERS. 203 Mr. Saunders. Will you let me ask you one question, and then I will not ask any more, because you have been most courteous. I know you would freely allow interruption if you had the time. What I want to ask is this: As a matter of fact, Mathew's name was on the ballot. Now, it has been conceded here that a voter could vote for Elliott Mathew either by writino; his name on the ballot, after scratch- ing out all names, or by scratching out the other two and leaving his name there. It is admitted that a voter who did this voted for Mathew. Mr. Thurston. I do not say I admit it; I only say that I am not jji'epared to argue the contrary. Mr. Saunders. Now, conceding that, here is a voter who is a free agent; he finds on the ballot names which, so far as he knows, are those of sane persons, and he marks out one of them and leaves the other two. What is the effect of that upon that ballot ? Mr. Nelson. That is the question that I put to Judge Saunders. Conceding now that he did not get on there regularly, yet in count- ing those votes we have got to determine the intent. How are we to determine whether or not the same intent was in the mind of the man that left two names, one that of a sane man and one of an insane man, in comparison with the case where the voter deliberately scratched the two names in order to vote for the insane man ? How are we to distinguish by any rule the matter of intent in that case ? Mr. Thurston. That question must come down to two suggestions. The first one which we made and which I now make here and was about to follow up is that his name had no right on that ballot, for the two reasons I have stated, that being the attempted execution of a notice by a person insane and practically dead at law, it was null and void in the beginning; that its being printed on that ballot had no more effect than if the secretary of state, without notice from anybody, had printed the name of John Jones on that list, in which case I suggest — I do not know that my legal acumen is infallible — that if the secretary of state places a name on that ballot unauthorized in any way to be there, that name having no right to be there must be treated as if it were not there, and let the question of intent follow an examination of each ballot in consideration of the proposition that that name must be treated as a blank space on that ballot. Mr. Saunders. Senator, in the State of Virginia we had a case in which we had to carry the name of a dead man on the ballot. That name had to be scratched out when the voter came to vote. Mr. Thurston. I presumed you carried the names of a good many dead ones on the ballot. Mr. Saunders. He was a dead man at the time the voter voted and we had to furnish for use in the State of Virginia 1,500 rubber stamps to be used to strike out that man's name, and insert another. Mr. Carrico. His name had been printed on the ballot already. Mr. Saunders. His name w^as there at the time that the voter voted. He had to strike out his name in order to make his vote legal. Mr. Thurston. Now, if this name had no right to be on that ballot, and if you can not treat it as a nullity for either of the two reasons I have suggested, then there are other methods of ascertaining the intent of the voter in respect to those ballots where the names of one real candidate and of Mathew were left unscratched, and to those 204 PARSONS vs. SAUNDERS. two methods of ascertaining the intent of the voter I commend the committee. It is shown in this testimony that all through that district in an exciting campaign of public discussion and of great newspaper vigor, the only two names which had been publicly announced or brought to the attention of the people were those of Saunders and Parsons, the two candidates of the respective parties. It is in the proof that at the hustings and in the press the only voice of announcement that was ever heard that reached the ears of the people was the announce- ment that Parsons was the Republican candidate and Saunders the Democratic candidate. In determining the intention of a voter you must find out first what information he had upon which he wias acting when he came to mark his ballot, and with that purpose in view you must find as a matter of fact from the testimony that the voters when they went into the election booths, not knowing in advance that the name of Mathew would be found upon that ticket, went in there with the belief and the understanding that they were to scratch names as betw^een the two candidates whom they knew to be the only candidates upon the ticket, or running before the people. Not only that, but I go a little further, and I say in view of the fact that so far as the popular knowledge was concerned there were but two candidates for Congress, those of the opposite political parties, and that for an elector to have erased one of those names is a clear expression, first, of his intention not to vote for that man; and you will naturally agree with me, if he does not erase anything else but that name, whom he thereby declares he does not vote for, and also in view of the public understanding of the question and of his own understanding, that it was his intention to vote for one of the real candidates whose name appeared upon that ballot. Mr. Nelson. That would be plain if there had not been the fact that there were fifteen votes for the insane man; and that is the difficulty with me. Senator, and I would like to have you eliminate that troublesome thing, if you can. Mr. Saunders. Before you get to that, there were three presiden- tial tickets on the ballot that were not as well known in the district as Mathew, and did not get as many votes. There were a great many of these ballots that were not scratched at all, as to the presidential part of them. Would you take those presidential ballots, where merely Bryan had been scratched out, and vote them for Taft, although the voter had not erased the other names ? Mr. Thurston. I would not, for the reason that many of those names were properly and legally on the ballot. Mr. Saunders. But that is not the point. Mr. Thurston. Oh, yes, it is. I say that what I am arguing now does not apply if Mathew's name was legally and properly on the ballot. If it was not legall}^ and properly on the ballot, then I am discussing what rule should be applied to ascertain the intent of the voter upon the ballot that you have before you. Now, I am stating a general rule; there may be exceptions, and as against the general rule testimony can be considered to the effect that the voter did know Mathew's name was on the ballot and marked his ballot with that understanding. For instance, you might, in the case of any particu- lar ballot, if it were known who cast it, or you might, I think, call up PAKSONS VS. SAUNDERS. 205 from the body of tlu> citizenship, if you knew someone who had voted at a particular polhn^ place in this way, and you could prove if it were the fact, and I think you could go into the whole question of public knowledge, if you wanted to go to that extent and pay the price tor it, to show tliat individual voters, or that voters generally, or that a number of the voters, or that voters in some precincts and not in others, knew before they went to the election or went into the booth that Mathew's name was to be one of the names that they were to consider when they got inside. Mr. Nelson. Is there testimony to show what the intention was, outside of the l)allots ? Mr. Carricc). In some instances. Mr. Thurston. Practically none. My contention is that on a ballot which simply discloses the elimination of one of the candidates, imder the circumstances I have outlined, the intention must be prima facie an intention to have voted for the other. Where there is, however, on the ballot any other mark, such as scratching out the names of both candidates and leaving Mathew's name, where there is any mark that indicates on the ballot itself that the elector did not intend by simpl}^ scratciiing out the name of one of the real candidates to vote for the other, of course that proof must be accepted and is conclusive of the intent. I want to say now only a word or two further in connection with this matter. The knowledge of the disqualification of this candidate did come to the secretary of state of the dominant political party in time to have had this name taken from the ballot. They say he could not have done it, and they ask to be pointed to some provision of law by which he could have withdrawn that name from the ballot as sent out. There is no specific provision of law, for the law had never contemplated that a case might arise where the sec- retary of state, without making an inquiry, without ascertaining the truth as to the underlying facts, would place the name of a woman, of an alien, or an infant, or a convict, or an insane man on the official ballot. And if, prior to sending out a name of that character, he had not investigated and ascertained that the person sending in the notice was such a person as the law intends that he should be — that is, a qualified elector, then if he should ascertain it afterwards it is in his power at all times up to the morning of the election to undo the illegal work which he has inadvertently or otheiwise done. Now then, going back a little to the question of the intent of the voter, and of how the placing of that name on that ballot was preju- dicial to the interests of Mr. Parsons. That notice was written by a man in a store in the presence of two members of Mr. Saunders's party. One of the witnesses to it became a witness to it without Ivnow^ng Mathew at all, under these circumstances. Mathew asked a young man there at the store to be a w^itness to that, and he de- clined, but said "Here is a man who wdll be a witness to it." This man witnessed it, but fuiding out what it was, he stated "I will sign this, all right, as a witness, but 1 intend to vote for Judge Saunders." It came from Democratic surroundings; and I am not speaking offensively now. Great Lord, out in my State I used to have as many real good Democratic supporters, I think, as Republican. Mr. Saunders. Well, there are a number of Republicans who suj)- port me. 206 PAKSONS vs. SAUNDEKS. Mr. Thueston. This originated from a Democratic source. The man who signed it was a Democrat; it was sent by Democrats to Democratic officials. It never became pubhc to the RepubHcan electors. Take the testimony in all its length and breadth, there is the mere suggestion of an incident, as you might call it, where it had been stated in some paper or somewhere in one locality that he was a candidate for office, the general fact that he was a candidate for office had never come to the attention of anybody in the Republi- can party in the Fifth Congressional District until the morning of the election. Mr. Saunders. No; it was sent out as a news item from Rich- mond, by a newspaper reporter there, to a metropolitan journal in Lynchburg which came out two weeks before the election, and went all over the district. Mr. Thurston. I am not going into an analysis of the testimony on that point. My time is too short. But I say, and the proof will show, that for all intents and purposes the Republicans of that district never had any knowledge or thought that there were to be any names on that ticket except the names of Parsons and Saunders. The Dem- ocrats, however, did know it. It had a Democratic origin. It went into the hands for action of a Democratic official. It was sent out to Democratic committees; it was put into the hands of Democratic printers under a requirement of the law that the contents of those official ballots should be kept secret by the printers. The secretary of state knew it. The men who signed it as witnesses knew it. The county committees knew it. The local printers knew it. And there the information in every precinct in that county was in the possession of Democratic men before the ballots were printed and before the day of election. I am not charging that they did anything wrong about that. That is not my purpose at this time, although I do suggest that the whole manner and method of getting that name upon the ticket bears the ear- marks of a scheme originated by somebody whereby to give an undue and unfair advantage to the candidate on that ticket, who was not Mr. Parsons. But they knew it, and if the secrecy of the law was pre- served, as I presume it was as far as its reaching any Republican peo- ple was concerned, the Republicans of that district had no idea until each individual went into the polling place that that name was upon the ticket, and it is in view of all this testimony that you must deter- mine, if you fairly can, what was the intention of the voter in thus marking the ticket. And now, just for a little while, and onl;y- for a little while, I will discuss the two constitutional questions arising in this case. I am at some loss as to the order in which I shall present my views on these two constitutional questions, but I have thought, on the whole, I would present to you first the question as to whether or not the act of the legislature of Virginia taking Floyd County from the fifth district and placing it in the sixth district was in violation of the constitution of the State of Virginia, as well as in violation of the act of Congress relating to apportionment of Representatives among the States. I will follow this by the question as to whether or not the constitutional power of making an apportionment after each census is exhausted by one act of general apportionment. As I have already stated, the judicial power of the Congress of the United PARSONS VS. SAUNDERS. 207 States to pass upon this (iiiestioii is unlimited and undoubted, and in the absence of a decision placing a construction upon that pro- vision of the constitution by the su])renie court of Virginia, Congress is free to express its own deliberate legal judgment as to the proper construction and interpretation and a])plication of the provisions of the Virginia constitution, just exactly as a federal judge would have unlimited judicial power, if, acquiring jurisdiction of a case by reason of diverse citizenship, there should arise in that case, and necessary to the determination of the respective legal rights of the parties, a (|uestion of the construction of the constitution of a State. That federal judge in that case having jurisdiction of the subject- matter and of the })arties would not only have tJie right, but it would be ins duty, to place a judicial construction upon the constitutional requirements of a t)articular State where that constitutional pro- vision was involvecl in determining the rights of the parties. So there is no question about your power, there is no question about your propriety of action. You must decide this case as the first court that has had presented to it the question of the construction and application of the constitution of Virginia to this case. If the final tribunal of Virginia had construed that section of the constitu- tion, Congress then would have been in the same position as every court of this country is in; it would undoubtedly in all ordinary cases follow the construction placed upon the local constitution or a law of peculiar local application, by the supreme court of the State. It would follow it not because the decision of that supreme court is absolutely binding in that respect upon this tribunal or upon any other court, state or federal, in any other jurisdiction where the con- struction of that constitutional provision is called into question; it would follow it not because it is binding, but because it is always assumed, in the first instance, that the decision of the highest tribunal of the State construing its own acts is correct. But cases may arise, and the j)ower exists, where the court may not be willing to follow, may not believe it is right to follow the decision of the supreme court of the State — and there have been such cases — and in such cases courts will refuse, and have refused, to follow the local construction and interpretation of a constitution or the statute of a State. But that is neither here nor there. It is for you now, as a supreme tribunal of justice, having full judicial power, to decide this as a new question, and to place for the first time upon the constitution of the State of Virginia a judicial construction and interpretation. Just for a moment I wish to refer to the oft discussed and mooted question as to whether or not Members of Congress are, in that sense of the term, state representatives or representatives from the people of their districts. That discussion in the past raged and was waged on many important political battlefields. It was never decided. Nobody knows what may possibly be the ultimate determination of that question. And yet I think that it has become to-day the really settled judgment of this country that the Members of Congress, as contradistinguished from the Senators, provided for under the Constitution are representatives of the people of their districts and that the Senators are the representatives of the States. This would be equally true whether the State is divided into congressional dis- tricts or not, because if in the absence of the districting of the State they are elected by all of the people of the State at large, still that 208 PAESONS vs. SAUNDERS. is the district of all of them, contradistinguished from a State as a State; it is the district, and they combined are the representatives of the people of that district and not the representatives of the State. Now, the Constitution provided that the manner, time, and place of choosing Representatives shall be fixed by the legislatures of the respective States — I may not use the exact language, but that is the idea — and that that power should remain with the States until Con- gress sees fit to act in that respect. I have always believed, and I still believe, that the power under the Constitution is in the State and in the makers of its constitution, and in its legislative bodies, to take charge of the entire manner of conducting the election, to estab- lish the necessary regulations for its conduct, and, in fact, to do everything requisite that must be done in order to secure the desired results, and that power remains with the State until Congress other- wise acts. But all the time this same measure of power, no less, no more, though dormant, remains with the Congress of the United States and may be exercised at any time by congressional action, which then becomes controlling and is supreme. Mr. KoRBLY. Can that power be exercised by one-half ? Mr. Thurston. I am not going into that, but I say by Congress it may be exercised, in toto, or pro tanto, or wholly. Now Congress has undertaken to exercise a part of that power with respect to the manner in which congressional districts shall be made. Up to 1842 there was no act of Congress by which it was ever attempted to inter- fere with the States in the manner of the creation of congressional districts, or as to whether they should have congressional districts or not, and up to that. time the power, being entirely in the State, of course their Representatives, elected in any way the state statutes provided, were seated and must have been seated in the Congress of the United States. At that time Congress made its first move toward taking away from the State some little measure or part of that exclusive power to regulate the manner of conducting elections; and when I say that it took away some part of that power I say it because Congress could not take to itself by legislative enactment the appli- cation or use of a part of that power without taking that part of the power away from the State. » Congress did take to itself in 1842 sufficient of that power to pro- vide that Representatives should be elected in the respective States by and from congressional districts, to be composed of contiguous territory. That is as far as the act went at that time. Similar acts were passed under different censuses for a considerable time, and then certain other census acts omitted that provision and there were periods when there was no law on that question. Then in 1901 Con- gress enacted that the Representatives should be chosen from dis- tricts, to be established by the State, of course, but with certain limi- tations as to the manner of their establishment and of the character of the districts themselves. Congress provided that those districts should be composed — we will interpolate into the law "as far as practicable" — of contiguous territory and compact territory, and that they should contain — we will say again "as far as practicable" — a proportionate distribution of the population. Mr. KoRBLY. Now, may I ask you a question ? Mr. Thurston. Certainly. PARSONS VS. SAUNDERS. 209 Mr. KoRBLY. Any interpretation of that act as made by Congress itself would have considerable weight with this committee. Ml-. Thurston. Undoubtedly, and I will i-efer to that on another l)hase of the question. Tiiat act meant something. That act meant the assertion of some measure of power on the part of Congress to control the character of districts from which its Members should be selected. Now, to say that after that enactment of Congress the whole })ower, the extreme j)ower, the unassailable power, of estab- lishing those districts, willy-nilly, regardless of population, regard- less of contiguity, regardless of compactness, was in the legislature of Virginia exclusively, supreme, unassailable, is to say that this act of Congress was without any vital force or effect whatever. As to just how far that act withdrew from the supreme control of the legislature of the State its power in respect to the establishment of congressional districts we will consider a little later; })ut Congress did by that enactment withdraw from the States some part at least of the supreme ])ower it had formerly placed in them to define their congressional districts according to their own wishes. Now, for the purposes of convenience and time, I am going to argue the application of the law of Congress and the constitution of Vir- ginia to this question at the same time. They may apply in a little different way, but for the purposes of this argument, and knowing that you gentlemen do not need to be pounded and pounded to death on a legal proposition, I am going to do that. I only want to give you enough of a glimpse of it so that you may follow tlie light thus acquired, and I shall combine the two. I come, then, to this proposition, that somewhere the power exists to determine whether or not this enactment of Congress and that provision of the state constitution of Virginia have been violated. The power exists somewhere. Where does it exist? That power is in this supreme judicial tribunal created for the purpose of trying this very kind of a case. It must be here. If you tell me that Con- gress having enacted that statute has no power through any judicial tribunal in this country to enforce it; if you tell me that, you might just as well tell me that it has no power to enforce any other of its enactments. The power does exist and it exists in you. Whether you will exercise that power or not is in your wise judicial discretion. How far you will exercise that power is in your judicial discretion. In each particular case presented to you the question as to whether or not that section of the law of Congress has been so far violated that you as a judicial body will step in, is for you to determine. In making this proposition I am doing no more than all the courts of this country have done, and I insist that you will find in all these election cases it has been so decided; and there is no possible dif- ference in any of them on the one vital question of the power of the courts to set aside even a constitutional provision, say nothing of a statuatory enactment, if it is in disregard, clear disregard, of a supreme law of the land. All of them say so. It is not a question of power; there is not a court in the United States that denies to the judiciary the right to determine that an apportionment in a State is unconstitutional and void if the facts in that particular case show that there has been a S8069— 10 14 210 PAESONS VS. SAUNDERS. refusal, a brutal and violent and inexcusable refusal, to comply with the provisions of the constitution of the State or the act of Congress. I grant you the courts will interfere with great hesitation in every case where it is sought to compel them to decide that a constitutional provision has been violated, and especiallj?^ in a great ^natter like this of apportioning the members of the legislatures in the respective States and of Congress in the United States ; but in every one of these cases the courts say that the power exists in the court, and the ques- tion not of law but of fact in every case presented that the court must pass upon is, has the failure of the legislature been so gross and so willful, or has its action been of a character to set at defiance and to utterly disregard and annul the constitutional provision ? If it is, then the law as read by Judge Saunders here to you, gives Congress the power which it should exercise and which it has in fact at times exercised. Mr. Bennet. Would it interrupt you if I ask you a question on that line ? Mr. Thurston. Not at all. Mr. Bennet. Assuming that we find the legislature of Virginia had the constitutional right to pass the second constitutional act, and then we find that the act was unconstitutional under the fifty-second section of the constitution, there comes a further question, that is, what were the rights and obligations of citizens of Virginia in relation to the districts ? Did the act of the legislature, assuming it to be unconstitutional, nevertheless create a de facto district which the citizen was bound to respect ? Mr. Thurston. I am coming to that a little later on, but I will say now that the courts have held that an unconstitutional apportion- ment is in fact no apportionment. In other words, a district de- scribed and defined by an unconstitutional act, is no district either in law or in fact. Mr. Thurston. Not discussing 3^et, as you will see, the other con- stitutional question as to whether the power once exercised can be exercised again — I have not got to that yet — I come now to the question, was the act of the legislature of Virginia of 1908 in accord- ance with, or was it a clear, express, brutal, unwarranted, unexplain- able violation of, the constitution of the State of Virginia ? Let us see what that constitution provides. Mr. Bennet. I have that here. Senator, and I will read it if you would like me to. Mr. Thurston. Very well. Mr. Bennet (reading) : The general assembly shall by law apportion the State into districts corresponding with the number of Representatives to which it may be entitled in the House of Rep- resentatives of the Congress of the United States; which districts shall be composed of contiguous and compact territory containing, as nearly as practicable, an equal number of inhabitants. (Art. 5, sec. 55, Constitution of Virginia.) Mr. Thurston. What I want to call the attention of the commit- tee to is the language of that constitutional provision, which says the legislature shall apportion the Representatives to districts created in such and such a manner. It provides for what is thus by consti- tutional provision, declared to be an apportionment. Now, here is what I say. If what they did in 1908 was not in any sense an appor- tionment tested by any rule under the most favorable consideration PABSONS VS. SAUNDERS. 211 in favoi- of the power of the loo;islatiire, if it was not an apportion- ment, then it was not in accordance with the constitutional provision. The}^ had ah'eady apportioned tlie State into representative districts in 1906, two years before. Four years before that the legislature had passed a law similar in character, although extending to all the districts of the State; but in certain respects and as to certain dis- tricts similar in character to the inequalities and injustice of the one now before tliis committee; and the governor of that State at that time had called the attention of the legislature to the fact that such act of theirs, although a general apportionment act, was unconsti- tutional and in violation of the constitutional provision with respect to tJie apportionment of Members of Congress, both as to contiguous territory and compactness, and as to population. That was the decision of the executive of the State, but it was so quickly and readily recognized in and accepted as a true statement of the constitutional construction that that veto was not even called up in a legislature w^here many more than sufficient members of his own party, who had already voted for the bill, remained in each body to have passed it over his veto. Mr. KoRBLY. Was not that because it was sent in on the last day of the legislature ? Mr. Thurston. I understand not. I understand that the veto was simply left to lie there without a voice of protest from the legis- lature which the governor had thus charged with violating the con- stitutional requirements. And there it remaineil, a notice to every succeeding legislature of the State that the proper construction of the constitutional provision in Virginia was that there must be a compliance with the Constitution in an apportionment of Representa- tives into districts in the State — that there must be a fair effort made to comply as to compact and contiguous territory and as to equality of population with the provisions of the Constitution. The State acquiesced in that veto. Two years later a new legislature acquiesced in that veto, and again two years later another legislature acquiesced in the governor's constitutional construction, and passed a general apportionment act, measurably comph ing with the requirements of compactness, contiguous territory, and equality of population. These districts w-ere establisheVl in 1906. Whether the legislature thereafter had the power or hatl a continuing power and a remaining power to again apportion Rei)resentatives is a question that I will discuss very briefly soon, but not here. But what I insist is that the act which they did pass in 1908 was not an act which can upon any construction of that constitution of Virginia be claimed as an ap- portionment act. I want you to understand wdiat an apportionment means. Were astronomers called upon to apportion the bodies of our solar system, they would not do so by taking from Venus and adding to Jupiter, or by taking from the moon and adding to the earth. That is not an apportionment. An apportionment, under every definition of it you can find in dictionaries or in judicial decisions or as expressed by prominent men of letters, is a bringing nearer, a bringing nearer to equality. That is the sum and substance of the definition : it is bringing nearer to equality. That is an apportionment, and the rending apart of an apportionment already made is not a new ap- |)ortionment. 212 PARSONS VS. SAUNDEES. Of course this act of the legislature affected four congressional districts. It took two counties away from two districts and put them into two others. But I will only discuss it as it takes Floyd County away from one district and puts it into another. There is this district on the map. Is the eyesight of man so blind that it can not see, or is it so perverted that it can not see, that the taking of that county from the fifth district as theretofore established did not result in more compactness or greater contiguity of territory? In taking away that portion from a district lesser in population than the one to which the county is transferred, can the mind of man con- ceive that such act is an apportionment, a bringing nearer to an equality, as between those two congressional districts ? Suppose this legislature had excluded by a single act Floyd County from the Fifth Congressional District, and stopped right there, placing it nowhere; would that have been a constitutional exercise of power? No man will say that it could be. Then how is it made constitu- tional because, after taking it away from that district, it places it in another district ? Mr. Saunders. Senator, if the fifth district is less compact, the sixth district is made more compact. On the whole the latter is made a better district than it was before. Mr. Thurston. I am not arguing anything about the sixth district. Mr. Saunders. Yes; but I am saying that on the whole the prin- ciple of compactness is not violated. If one district is made less compact the other is made more so. Mr. Thurston. Well, that has not been pointed out, and I do not think if you will look at the map it will follow, at all. But it does not make any difference. The power to apportion or to reappor- tion does not mean the power to take from an established district and add to another district, unless there can be at least conceived; behind it all, some purpose to more nearly establish an apportion- ment — that is, an equality — between the districts. Now, nobody on earth has ever pointed out any possible purpose underlying this act to more equally apportion representatives as between those two districts. Nobody has suggested it, and nobody can do so. You read the answer on the face of the map. You read it in considering the population. It is taking from the less and giving to the greater. You read it in every surrounding fact that can be discovered. You read it in the fact that the governor of the State, six years before, had solemnly notified the members of the legislature that they were violating the constitution when they attempted a similar outrage upon the political rights of the people of the State. They took away from the less and gave to the greater. If that is an apportionment, that individual act of taking away from the less and giving to the greater, I do not understand what an apportionment is. Now, I could not make so strong an argument upon that particu- lar proposition if this were an act which on the face of it purported to apportion congressional districts throughout the entire State, because when the legislature acts upon a general apportionment it must be conceived, and is at least conceivable and supposable, that under- lying the general harmony that must be secured reconciling differ- ences and at last securing an entire apportionment of the whole State into districts, there must be some concessions here and there, and some resulting inequalities. I can conceive that a court would PARSONS VS. SAUNDERS. 213 be very reluctant to say and would hesitate long' and ])roperly so before it would ever say, although it has the j)ower to say, that an act of a])j)ortionni(Mit of the whole State into districts is so disregardful, so outrageously (hsregardful, of the act of Congress and the constitu- tion of the State that it is null and void. But here there was a general apportionment in 1906 which the legis- lature necessarily declared was a fair and just apportionment of the State into congressional districts. Two years later, without any attempt to readjust the (hstricts throughout the State, they passed an act of political rapine, by which they seized from the belly of one district a portion necessary to be taken away in order that the domi- nant political party in power should have a certainty of sending to the Congress of the United States another Representative. Talk up and down and say nice things as mucli as you please, Gabriel himself, if he were to announce any other purpose in that enactment, would not have a listener within the boundaries of even Virginia. Such gerrymandering has been done' by Republican States, it has been done by Democratic States, it has been done most outrageously by Popu- lists, but it was never right that it should be done. Every man agrees to that, and it remains, and you know it, established beyond all controversy, that here was a district which, as it then stood, the dominant party in the State of Virginia believed might be lost to them, and the representation of which they could make secure for their party by taking a thousand Repubhcan majority away from it, with utter disre- gard of the constitutional requirements, and placing it over in another district, where that majority one way or another would not cut any figure. Now, T say this, that the act is not an act affecting alone the in- terests of the people or of the political parties of the State of Virginia. That act is an act of outrage committed against every individual in the United States. Every man in my district in the State of Nebraska has a right to demand that every man sent to Congress to pass as well upon his own as upon our interests shall be sent there with a clean bill of health, and that in his election there shall be fair rep- resentation, given according to population, to political differences between the parties, and Mr. KoRBLY. If you will let me make a suggestion, T would like to say that Congress in the apportionment of Oklahoma has violated these very principles in a much more flagrant way than anything you claim in this situation. Mr. Thurston. I do not know anything about the Oklahoma situation. Congress could undoubtedly do that. It would not be a constitutional question with Congress; it would be a question of decency — political decency. But you can not get away from the fact that there was and could have been but one purpose in that so-called apportionment act, which was not an apportionment act at all, and that was to secure a certainty of a continued representation of the dominant party in the Congress of the United States from that district; and the result shows it. It was suggested here by Mr. Saunders that if he could explain to this committee, there were many reasons why this act was justified, why it was better for the one district or the other that these changes in counties should be made; but if there was any such underlying 214 PAESONS VS. SAUNDERS. or proper or controlling reason, it was his duty and his right to have taken testimony upon that question and presented it here. If there was a localized community of interest existing there, that is a physical fact capable of exact testimony. It should have been proven. If there were any railroad communications so that it would thereby give to the people better service, or to the district as constituted anew better communication, that was capable of proof. If there were any roadways that would give any better access from one part of the district to another, that was a matter that could have been readily proven. But there is not any proof, and the case stands that, for what must be conceded an absolute political advan- tage, a district already created by proper apportionment act of the state legislature, it was robbed by taking aw^ay from it that particular portion of the district which alone had permitted it to pass muster as being composed of compact and contiguous territory. There is no excuse offered; there can be none. It was a mere political play. It was at the best a brutal exercise of political power, a brutal, inexcusable, unjustifiable exercise of political power. That is the best you can say. It is only defended upon the proposition that they had the power and had the right to exercise it brutally. That is all. There is no excuse for it. It was not in the interest of fairness or justice; it was not carrying into effect the plain intent and pur- pose of the constitution of Virginia and of the act of Congress of the United States ; it was not for the purpose of reapportioning Members of Congress among the districts of Virginia; it was not for the pur- pose of bringing them more nearly into compliance with the require- ments of the constitution as to equality of population and contiguous and compact territory. It was the exercise of a brutal political power, justified only because it is said there is nothing that can be invoked to prevent it, and you have the result without excuse, and with virtual admission that it violates all the spirit and all the purpose designed to be effected by the constitution of the State of Virginia and by the act of Congress. The only argument is that although it violates the spirit and destroys the purpose, it does not lie in the power of an}^ tribunal, judicial or otherwise, to declare that that exercise is void. Now, just a few words along the other line, as to whether or not this power once exercised, even if the second act was an appor- tionment act, can be exercised again during the same census term. I readily understand what difficulties surround us when we ask this committee to make a report here which would apparently and upon its face contradict or be in the nature of a review or reversal of the election case in New Hampshire, the case of Perkins v. Morrison. I want to be fair. That case did present the question of one apportionment made under the act of Congress of 1842 in the State of New Hampshire, followed by another apportionment act which changed a district or districts, and in that case it was held that under the constitution, and until or unless limited by congressional enactment, the whole question of apportionment was in the legislature of the State, and that case did hold, at least by natural and necessary intendment, that that was a continuing power, and it was undoubtedly the view of the committee at that time that it was a continuing power in the legislature of the State, and that one exercise of it by an apportion- PARSONS VS. SAUNDERS, 215 merit did not exhaust the power or limit or prevent a further exercise of it. But what I wish to say on that is this. If you will look into that case, what was reported, and what was said in aro;ument upon it, there was nobody on either side of that question in their report, or on the floor of (V)n:ino;, or suo:o;esting even, that the power of apportionment given to the State under the act of Cono;ress was a power to be exercised at a specified time or in a specified manner, and that one action under it exhausted that particular power. That really was not thought of; it was not considered; it was not digested — that idea. It is true that the decision goes to the extent of saying that, not in exact terms, but by fair construction, because that was a fact, and I do not wish to dodge it. The case undoubtedly decided that; but at that time, as Governor Montague says, the question had never been })eforc any court in this country; there were no judicial decisions to guide the (^ongress of the United States, and when I say "guide," I do not mean to control. Congress will give to all the decisions of all the courts due credit, and if they seem to be the judgments of delib- erate tribunals after full hearing, and well forfeited by o])inion, they are very apt to follow them. But I say at that time the question had never been presented before the courts in this country. It had not been suggested, and the necessity for it had not arisen; and in the New Hampshire case you will find, if you look it all the way through, that that particular question as to the exhaustion of the power by the one exercise of it was not in any way clearly or distinctly put in issue or distinctly thought of or considered or argued out. Since that time, however, the question has arisen in several States of the Union. I can not refer to these cases now in extenso or read from them, but in One hundred and seventy-second Illinois and in the Wisconsin case cited and in the Indiana case cited there at least in those three States has been an express decision of the precise point, as the result of three of the very ablest opinions you can find in the books, well reasoned out and well fortified in every resj)ect, and backed uj) by analogous autliority from many courts. There are those three decisions which decide exactly this: Where there is a provision for the taking of a state census or a national census — in Illinois it was a state census, but in the others a national census — and that after taking that census and that census being established the legislature should divide the State into legislative districts, the creation of those districts by a legislative act ex- hausts the power. I am not going to discuss these cases on the question of fair apportionment or contiguous territory. I have said enough about that. I will only say that these cases all fortify my })osition on those points also. But in the three States named the requirement was that after the taking or the establishment of a census there should bean apportionment; that after each census there should be an apportionment; and the constitution in those three States was silent beyond that. There it stopped. It was silent. There was no negative suggestion of any kind or character that they could not make another apjjortionment. It just sim])ly directed them to make one. Now, the courts in all three of those cases held that there was no continuing power vested in the legislature after it had once exer- cised it. Those courts further held that by providing the time and place or the time and conditions precedent to the right of the legisla- 216 PARSONS VS. SAUNDERS. ture to apportion, or to the duty of the legislature to apportion, there arose an inhibition against the exercise of that power in any other way or at any other time; and I submit to this body that those three cases are excellently well reasoned. They are not hasty or ill advised. They are fortified by authorities and by the truest apj^lication of the proper rule of construction of statutory and constitutional provisions, and they decide that where the power is given or conferred, after the happening of an event like a census, to apportion the State, the power continues until it is exercised, and when exercised it is gone until another period, as fix:ed by the census, creates a new power or revives a power that has slept. If these decisions are correct, then, in the light of the judicial deci- sions of this country to-day, the New Hampshire case was not de- cided correctly upon that point. It is always well enough to adhere to precedents, but a bad precedent ought not to be followed. A precedent which does not commend itself to the judicial judgment of trained lawyers at this time should not be followed because it ap- pealed to the trained judgment of trained lawyers at that time. Why, we are changing all the time, and necessarily changing, from decade to decade, in our construction of even the great Constitution of the United States, that wonderful instrument on which hangs and rests, in the ultimate, the liberty and rights and property interests of every present and future citizen of this great Republic, the most wonderful document that ever was written. Yet that was written in the twi- light and by the candle-light of the afternoon of the eighteenth cen- tury, and with respect to the existing conditions and necessitijs of the' country at that time. If it is to remain the bulwark of our rights, -if it is to remain an instrument capable of preserving us in our increased power and prestige in our rapidly diversifying interests, in our expanded boundaries, in our wonderful creative and inventive genius, in the vast multiplication of all avenues of business, if it is to do all of this for the men of future generations, then, indeed, it must be construed according to the mightier necessities, and in the electric splendor of the twentieth century civilization. We are growing, inevitably growing, in our construction even of the Constitution of the United States; for national necessities,^ for the preser^ ation of our power, for the protection of the people, there are clauses of the Constitution of the United States which the judgment of men before these new conditions had arisen said meant one thing, that must, if we are to live, b*^ declared by men of a new generation, of a new time and new conditions, to mean other things; to mean ade- quate protection and guarantee of the rights, of the liberties, of the opportunities of the men of the future." The decision rendered in the old New Hampshire case on this particular point does not rest upon any thorough discussion of that particular point; the question of the exhaustion of power was really aot then thought of. Mr. Saunders. In that connection I want to refer you to the Con- gressional Globe, in which it was discussed. j\Ir. Thurston. I understand just how far it was discussed, and I still stand here to maintain what I have stated. Mr. Saunders. It is page 184 of this volume of the Globe. Mr. Thurston. Yes; I understand. I know how far it was dis- cussed; when I say discussed, I mean argued out. There was no underlvino- argument there. Thev do sav that it is a continuing PAKSyJSb VS. SAU^'DEK.S. 217 power. That is not h discussion of it. »VliHt 1 suid wiis tJiat tlie case was not discussed on that question. Mr. Sauxders. 'vio;iit lieie is the flisoussion. Mr. Thurston. Tliat is a decision. Mr. Saunders. Xo; it is tlie discussion, Senatoi-. Mr. Thurston. But there was not any of what I call leal discus- sion, and there ceitainly was not any such judicial examination of that constitutional question, and there was no such judicial result or decision arrived at as has been arrived at after the calm and exhaustive consideration of this same question of construction of the Constitution by the courts in these latter days; and what I say is, wliere an old decision of Coru^ress stands alone. Congress, being a part of the judiciary of the United States, when it comes to try another case, will give heed not only to the decisions of its owni tribunal in the past, but will also take account, in announcing its new decision, of wliat the courts of equal jurisdiction, having under consideration tlie same questions, have said in other places. Now, there are only two things that I have omitted, and just for a moment I want to refer to those. Passing hastily over the case and reviewing mentally my argument I find that I forgot to speak of two questions. Going back, therefore, the question arises here as to whether oi' not the tax-paid lists under the laws of A'irginia were the exclusive method ot establishing the right of a voter to cast h's ballot on election day so far as the qualification of tax paying is concerned. It has been suggested, and I have heard it stated liere as a part of the argument and as argument only, that twM) judges in the State of Virginia have reached a conclusion which I can not feel is justified under their statutes on any theory of statutory construction. It is also stated here, also on argument, that other judges of the sam.e State at nisi prius have decided exactly the contrary. It, however, remains the fact that the supreme tribunal which has the right to construe the laws ot the State of Virginia and to j>lace a meaning upon them that can not be disregarded by any inferior court of that State, has not passed on that question; so that except as the reasoning given by the judges wdio rendered these nisi prius opinions, as Judge Saunders has stated here, may appeal to the reason and judgment and legal intelligence of this committee; they have no binding or authoritative weight as adjudications. And this tribunal must re- gard them the same as they would any other opinion of any other judge in any other State or anywhere passing upon a similar question. They should regard them as the expression of men supposedly learned in the law and holding judicial place, of their views of the proper construction of a certain statute. From my standpoint, I confess I may be blind, but I can see only one possible construction of the statute of the State of Virginia on that question of that poll tax. In the first place, what is its purpose ? There is only one answer to that; its purpose is to execute the law so that no man shall vote who has not paid his poll tax. It is in execution of the enforcement of that inhibition against the right of a nontaxpayer to vote; there is no doubt about that. That is what it was passed for. AVhydothey have a tax Hst at all ? Why is it posted up I Why is notice given ? It is simply an attempt of the legislature — a veiy justifiable and propel- attempt — to compel and secure a ballot in \^-llich there shall not be found, or in which it is hoped there will not be found, any 218 PAESONS VS. SAUNDEKS. ballot cast by a person who is disqualified by not having paid his poll tax. It was a very wise and proper provision of law. It meant something. In the first place, the requirement is, as I have already stated, that the treasurer shall place upon that list the names of all persons who have paid their poll taxes. Having discussed that some- what at length, I will not go into it further here. He was required to place all the names on that hst. Therefore, if he performed his duty there was upon that list the name of every man who had paid his taxes. The presumption of law invoked here on yesterday is that every public officer will do and has done his duty and complied with the law. If that presumption holds in this case, then that tax list represents on its face not only those who have paid, but being a com- pliance with the statute which requires it to contain the names of all those who have paid, it contains on its face the absolute, unchallenged, uncontradicted proof that nobody has paid his taxes who does not appear on that list. Mr. Howell. Not when it is done on the presumption that every citizen will pay his taxes. Mr. KoRBLY. There is no such presumption. Mr. Howell. The presumption is that every one will do his duty. Mr. KoRBLY. I have never found that. Mr. Howell. Yes, it is. Mr. Korbly. I think you are confusing that with the presumption that every person who holds official position is presumed to have per- formed his duty. Mr. Howell. No; it is only on that presumption that every man is presumed to be innocent until he has been proven guilt}^ Mr. Thurston. As a matter of fact, under any law, in any case of this kind, the uuevidenced presumption that a man has paid his poll tax does not constitute any prima facie case that would entitle him to vote. Mr. Saunders. Just in that connection permit me to say this: I agree with that proposition, that if a man is not on the tax list, then the burden is on him to show that he has paid his taxes; but when he votes, then the presumption is that he has satisfied the judges that he has paid his taxes. Mr. Thurston. Yes; I am going to get right down to that. Wliat have the judges got to do with it ? Mr. Saunders. Because the judges of election do not do their duty Mr. Thurston. That is what I am going to argue. Mr. Saunders (continuing). If they allow a man to vote unless they were satisfied that he has paid his tax. Mr. Thurston. That is what I am going to argue. The law pro- vides that that tax list at the polling place shall be the exclusive proof. What is the word ? "Conclusive;" the conclusive proof. Mr. Saunders. Of what it contains. Mr. Thurston. Of what it contains. Now, by every rule of statu- tory construction, when the law provides that that list shall contain the name of every man who has paid his poll tax there is contained therein by intendment, just as if written in letters of fire, that no other man in that election district has paid his poll tax; and it is all there on the face of it. PARSONS VS. SAUNDERS. 219 Mr. Ivouiu.Y. Does the statute really contain that, that the absence of a man's nanu^ t'lom that list is conclusive evidence that he has not paid his taxes, even although he has paid them? Mr. Thurston. It is conclusive proof so far as the action of the judges at that election in receiving his vote is concerned; and I will show you why. It is conclusive proof that every man on there has paid his poll tax; that is, conclusive for the purposes of voting at that election. Mr. KoRBLY. Certainly. Mr. Thurston. Now, a man comes up to the judges of election, and he finds the name of his neighbor, John Smith, on the list, and he goes to John Swith and saj^s " You never paid your poll tax," and John Smith sa3'^s, ''I know that." Then he brings him u]) there and he brings the treasurer there and challenges the vote of John Smith, and he takes testimony before the Judges, and it is shown by the admis- sion of the man and uncontradicted proof that although his name is on that list he has not paid his tax. Now, what are you going to do ? Mr. KoRBLY. Under the law of Virginia he is entitled to his vote. Mr. Thurston. Certainly he is. They have got to admit his vote. The question of its legality of course will arise afterwards on the con- test, as it arises here, but they have got to admit his vote. Therefore that list is binding on those judges, and the law does not confer any power on them to hear any question involved in relation to that list. In the only two cases where the man's name would not appear on this list by reason of his having been too young, or by reason of his having moved in from another county, the legislature has provided, by explicit provision that has been read here, that that man, because he could not have got onto that list, may vote by presenting another proof which the legislature says shall be good, and that is the certifi- cate of the treasurer of the county where the tax has been paid, and where he formerly resided. Mr. Saunders. Suppose you take the other side of the case. Here is a man not on the list, and he brings his tax receipt, and then in addition to that the treasurer, and proves that he has complied with that section of the constitution and claims the right to vote. Do you claim that that man should be excluded ? Mr. Thurston. He can not vote. It is the application of the same rule. It is the same justice. A man who is on there, who ought not to be on there because he has not paid, must be permitted to vote. A man not on there, although he has paid, can not be ])ermitted to vote. Mr. Saunders. In one case it is an absolute constitutional require- ment, and in the other case it is a hardship imposed by an arl)itrary and unnecessary interpretation of the constitution. Mr. Thurston. No; it is not at all. Mr. Saunders. You can not cite me to any constitutional pro- vision which plainly says that a man must be on the tax list in order to vote. Mr. KoRBLY. It is conclusive of an affirmative proposition, and you argue that it is also conclusive proof of a negative proposition. Mr. Thurston. Yes, undoubtedly; and especially in this. The requirement is that it shall contain all the names, and it is perfectly evident that it was the intention of the legislature that this should be the proof, the only proof, both ways at the polls, for the judges of 220 PARSONS vs. SAUNDERS. election; because in the only other two cases that could arise, if the party who could not have been on that roll for other reasons can bring his treasurer's certificate there, they are required to accej)t that as evidence. But now let us see what is claimed here: It is claimed that notwithstanding these statutes, notwithstanding a man is not on the list, that the judges of every election precinct have a right to sit judicially and hear and determine the case of every man who comes and says, ''I am not on the list, but I have paid my tax." Mr. Saunders. Yes; and our statute gives them the right to hear all challenges of voters. Mr. Thurston. But this is not a case of challenge at all. Mr. Saunders. I do not know why. Mr. Thurston. It does not involve a challenge. Mr. Saunders. It involves the right to vote. Mr. Thurston. Yes; but the law has provided how challenges shall be made. It has not provided that the judges of election shall have the right to sit judicially to determine whether a man actually paid his tax or not; nor have these same judges of election been given the right to establish rules of evidence as to how that proof shall be made, whether by hearsay or by the declaration of Tom, Dick, and Harry, or by the certificate of the treasurer, or whether in any other manner. Even in the case of parties who have been prevented, as by living outside the county, or as new voters, from being upon the rolls, the legislature has limited their proof to the certificate of the treasurer. Do you think that the law intended to permit men who could have been on that list and had not exercised the due vigilance to place themselves there, to have their names put there afterwards? Do you think that the law intended that the bars should be thrown down and that they should not be required even to present a treas- urer's certificate at the polls as other people are, in order to be entitled to vote ? Wliy, Mr. Chairman, if that rule of construction is correct, if the law of Virginia confers upon the judges at each polling place — these little, irresponsible election officers who strut for a day and then disappear — if it is intended to confer upon them the judicial power regardless of these election laws, to permit by any proof they are willing to accept, a man to establish the fact that he has actually paid his taxes, it opens the conduct of every election in Virginia to all sorts of fraud and partisan mismanagement, if political parties see fit, as they sometimes do in other States, to take advantage of such situations. In my judgment if you estabhsh the rule that those election judges can let a man vote on the strength of any kind of proof that is satisfactory to them and taken at the polls and not made of record, that can not be challenged anywhere else, that can not be revised or reviewed or apj^ealed from, if you intend to say that the legislature has given those judges that power, I intend to say that the minority party of the State of Virginia will never carry another congressional election in that State. They can not do it. The tes- timony taken in this case shows how many have voted and how many were permitted to vote who were not on that tax-paid list, and the evidence shows in many cases that those who were permitted to vote, and who satisfied the judges of election on that point, were not, in fact, entitled to vote. Mr. Saunders. Let me refer you to the law in that connection. PAKSONS VS. SAUNDERS. 221 Mr. Thurston. Yos. Mr. Saunders. If a man has not paid his taxes, that is a question of fact, is it not, and not one of law ^ That |)resents a simple ques- tion of fact to the judges. This reads: Any elector may, and it shall be the duty of the judges of election to, challenge the vote of any person who may be known or suspected to be not a duly qualified voter. And then there follows another section which describes how^ they shall hear the evidence in each case and determine on that question of fact. Mr. Thurston. That question does not go at all to the question of the man who is on the list. Mr. KoRBLY. May I ask you a question, Senator ? Mr. Thurston. Certainly. Mr. KoRBLY. The constitution of Virginia says that a man who has paid his taxes shall be entitlefl to vote. What have you to say as to the prescribed methods of limiting that right ? Mr. Thurston. I was about to get to that. The constitution of every State prescribes the qualifications of an elector. In the old States, under all constitutions, the only requirement was that an elector must be 21 years of age and a citizen of the United States, and must have resided so long in the State, and there it stopped. Under all those constitutions, in order to secure purity and fairness in elections, gradually there came to be enacted first registration laws, and then other laws following along the line of securing justness and fairness and purity in election methods. Every one of those laws provided that men, otherwise duly and constitutionally quali- fied, should do certain things before election day in order to vote, and I know of no cases where any of those provisions of registration or otherwise of that kind or character have been declared as violating the constitution, although in many instances and under particular circumstances they do prevent m-^v from going to the ballot box, to the booth on election (hiy, who are citizens and qualified electors. Mr. Saunders. You think that great evil will follow from allowing the judges to pass on this simple question of fact. Does it not sug- gest itself to you that if the principle you contend for, of the power of the legislature to make these requirements, be conceded, the legis- lative action can destroy the constitutional guarantee b}^ making provisions in conflict with it ? Mr. Thurston. Oh, that has all been worked out by a harmonious and unanimous line of decisions through the courts, that the legis- lature has the power. Of course it is subject to a judicial review. If they pass an act which in effect deprives a man of his right of suft'rage, it is unconstitutional. Mr. Saunders. That is exactly wdiat I hold. Mr. Thurston. But it is held by all courts that it is within the power of the legislature to prescribe the laW'S and methods by which every elector can put himself in a position to insist on his right to vote at the polling place. Mr. Carrico. Our constitution provides how every man shall go on the list. Mr. Thurston. Yes ; I understand that. In Virginia there has been no conclusion at all ; but I say in States that have no other provisions in the constituti(m, registration laws have always been upheld; and yet if 222 PAKSONS vs. SAUNDERS. the contention made lie re is correct, no registration law is good, because the contention would be that while the constitution does not require a man to register, yet being a qualified elector under the constitution he has a right to vote, notwithstanding what the legislature may insist he shall do before he exercises the right. The whole question is always, is this requirement placed upon this man for the purpose of securing purity and fairness in elections, a reasonable requirement, that he must comply with before he can insist upon the right to vote. Every man has a right to go into court, but no man can get into court unless he goes there upon a proper statement of his claim. He has got to do certain jurisdictional things to get into court. Mr. KoRBLY. But in every court there are secondary methods of getting at facts by evidence. Mr. Thurston. Yes. But a man can not go into court, just walk into court, and say ''I am here, and this is my case." He has got to proceed by the orderly methods pointed out. So in the case of every registration law it is provided that men must register before a certain time. They keep the list open until certain days and then it is provided that they shall be closed at a certain time. Many of those first registration acts contained no provision whereby a man could swear his vote in on election day, and yet they were held good. The same suggestion was made in all those cases, and the argument went on and on and on, that a man might be out on the road traveling and out of the State for thirty days before the election, and he would have had no chance to register. The only answer to that is that it is a reasonable requirement that a man shall not be permitted to assert his right to vote unless he has registered. It is not a question of his right to vote, but he shall not be permitted to assert that right to .vote at a particular election unless he has complied with the con- ditions. Mr. Saunders. Unless he has performed the requirements of the statute, he can not insist upon the right to his vote. The two cases in which those requirements were waived were at least specific and absolute; but now you wish to add something by construction. Mr. Thurston. No; not at all. Mr. Saunders. You want to add to our constitution by con- struction. Mr. Thurston. Oh, no; it is specific by any rule of construction we can invoke. It is specific under the two reasons that I suggested, first, because the law requires that the list shall contain all the names, and, second, it is specific when it makes the list absolute proof of what is contained in it. By intendment, by the same rule that was ever applied to any statute, by the same nde of construction that has been applied in Wisconsin, Indiana, and Illinois on the constitutional questions I have referred to, the opposite inevitably follows, that where the statute has pointed out the direct means of proof, it ex- cludes every other kind of proof; and by the further fact that in the only two cases of persons who could not have by a little exercise of diligence placed themselves on this list, the statute has permitted them and them only, by express terms, to qualify at the polls by the presentation of the certificate of the treasurer; and even as to them it has limited the character of the proof that they can present; one class of people must stand on that tax list, while those who could not have got on it if they had exercised the vigilance and diligence that the law requires, are permitted to present a treasurer's certificate. PAB.SONS VS. SAUNDEKkS. 228 In the case of ex-soldiers who need pay no ])oll tax the hiw pro- vides that the reo;istration books shall state that fact, and nowhere is any power given the judges of election to decide any of these ques- tions except from ollicial records. The Chairman. If there is anything else you want to present, Senator Thurston, I wish you would do it in as short a time as j)ossi- ble. We do not want to call you back, and the committee is anxious to adjourn. Mr. Thurston. Yes; I understand. The committee has been ver}^ kind to me. I have tried to present the case as briefly as I could, but I have had a good deal to go through, and I have tried to confine myself as much as I could to those questions which 1 thought impor- tant and material. Mr. Chairman, 1 tiiink I have at least challenged, and pretty sharply, the attention of the members of this committee to all the laws and all the statute's, and to what I think should be the proper construction to be placecl uj)on them, and as to their application to a case of this kind, and with that I submit the case. I only wish to add, not rhetorically, as my friend did, who at the end of his address made a most magnificent peroration, but in all sincerity, as I know he was sincere, the desire and the belief that this case will be decided as a question of law by a court exercising judicial powers, and that within the sacred precincts of this court, where justice sits, no more than in any other judicial tribunal shall any outside considerations be permitted to enter. We do not ask, we do not expect, any deci- sion other than that based upon the deliberate judgment of this com- mittee as to the law and the facts. ADDITIONAL STATEMENT OF MR. SAUNDERS. Mr. Saunders. Mr. Chairman, I am glad I met Senator Thurston. It has been a pleasure for me to conduct this case with him. Before you break up, I want to say a word in respect to an outside matter that was brought in here by Governor Montague, and to which I wished to reply at the time. I wish to submit in this connection a matter of record. It was suggested, and it has been argued before the committee, that with the most ample opportunity to pass the act of 1902 over his veto, the legislature acquiesced in the force of his reasoning. I simply wish to call your attention to the fact that the veto was sent in on the 2d day of April, and on the 2d day of April, according to the acts of the Virginia legislature that I have here, the last acts were signed by Governor Montague. That is, his veto mes- sage came in when the legislature was breaking up, and there was no time to take up and consider the message with a view to passing the act over the veto. This required a two-thirds vote, which at that time of the session was hard to secure. The legislature might not have passed the act over the veto, even if the effort had been made, but certainly no adequate time was afforded in which to make the effort. At that period of a legislative session it is frequently hard to get a quorum. Mr. Thurston. I do not want to discourage the committee, but that reminds me of the fact — it will only take me a moment or two to present it — that I have omitted to say what I had intended to say about the report of Mr. Taylor in the Kentucky election case. It was 224 PAESONS vs. SAUNDEES, very strongly argued here by Judge Saunders that that case was pre- eminently an authority of authorities, because it was so clearly an unchallenged declaration of the law on the subject as evidenced by the fact that Congress did not even pass upon it or take it up. It was never questioned in Congress. The facts, however, of that case convey to my mind an entirely different idea of its authority as repre- senting a decision of the House of Representatives. It is a very learned and very able paper, prepared by Mr. Taylor and submitted as the argument and the voice of one lawyer in the case, backed up by the votes of a majority of his associates; but instead of being the action of the House, or approved by the House, or confirmed by the House, the fact of it is, as you will see if you read the record, that the Taylor report was never brought up in the House of Representatives, and was never acted upon by the House, and does not stand as an adjudication by the House. I forgot to refer to the Virginia case relied upon by Mr. Saunders as sustaining the absolute and nonreviewable power of the legislature to apportion Members of Congress to districts regardless of any attempt to comply with the requirements as to compact and con- tiguous territory or equality of population. In that case the legislature had passed a general apportionment act, which it was charged it had no authority to do. It was also charged that the legislature had not created districts of compact and con- tiguous territory and had not made a fair distribution of population. It was not even pointed out in what respect they had failed as to any one district, and the decision at best is nothing more than a general declaration of the power of the legislature to make a general apportion- ment of congressional districts. As pointed out by Governor Montague, the case is not reasoned out at all, no authorities are cited, and the case itself is not even cited as an authority in any of the many succeeding cases in courts of the highest authority having under consideration the same or similar constitutional questions. It has no analogy to the case made here, and is not a construction of the clause of the Virginia constitution invoked by us. The Chairman. The committee are willing that you should have until Tuesday evening to file any additional authorities you wish to file, calling our attention to anything further you may wish to present. Mr. Thurston. We will call the attention of the committee to that election case in 138 New York. Mr. Saunders. I filed the cases of Sherrill v. O'Brien and of Carters. Rice, myself. The Chairman. You have until Tuesday evening at 6 o'clock for the filing of briefs. (At 1.30 o'clock p. m. the committee adjourned.) LEAg'lO