Book ^ CONTESTED ELECTION CASE OF JOHN J. CARNEY DICK T. MORGAN FROM THE Second Congressional District of Oklahoma I! WASHINGTON 1913 {J CONTESTED ELECTION CASE OF JOHN J. CARNEY V. DICK T. MORGAN FROM THE Second Congressional District of Oklahoma WASHINGTON 1913 i v9 n. OF D, SEP 13 1913 CONTESTED ELEOTIOI^ CASE OF JOHN J. CARNEY V. DICK T. MORGAN FROM THE SECOND CONGRESSIONAL DISTRICT OF OKLAHOMA. NOTICE OF CONTEST. Your contestant, John J. Carney, for grounds of contest against the con- testee, Dick T. Morgan, alleges and states : First. That at the regular election held in the second congressional district of the State of Oklahoma on the 5th day of November, A. D. 1912, the said John J. Carney was the duly and regularly chosen and qualified nominee of the Democratic Party for the office of Congressman from the second congressioral district of the State of Oklahoma, and that his name appeared upon the official ballot in said election as the candidate of said party for said office ; that the said Dick T. Morgan was the regular nominee of the Republican Party for said office, and that his name appeared upon the official ballot in said election as the candidate of said Republican Party for such office, and that there was an elec- tion held for said office in the State of Oklahoma upon the 5th day of Novem- ber, A. D. 1912. Second. That upon the 22d day of November, A. D. 1912, the State election board of the said State of Oklahoma canvassed the official returns of the vaiious counties in said congressional district and pretended to tabulate the votes returned for contestant and contestee and, upon completion thereof, wrongfully found and determined that the contestant, John J. Carney, had received only 23,671 votes for said office, and that the contestee. Dick T. Morgaj, had received 24,334 votes for said office, and thereupon wrongfully announced that the said Dick T. Morgan was therefore duly and legally elected to said office, and thereupon, wrongfully, upon the said 22d day of November, A. D. 1912, issued and delivered to the said Dick T. Morgan, contestee, a certificate of such elec- tion. Third. That the official returns of the votes cast at said election for the said John J. Carney and said Dick T. Morgan, nominees as aforesaid, as made by the various precinct election boards in the counties of the said second congressional district to the said State election board, and as aforesaid returns canvassed by the said State election board were and are false, untrue, and incor- rect, and did not and do not show the true and correct number of legal votes cast for the said two nominees, John J. Carney and Dick T. Morgan, at said election for said office ; that in truth and in fact the. said John J. Carney, at said election, received 25,171 votes and the said Dick T. Morgan only 22,594 votes; that 25,171 votes, so received by contestant as aforesaid, were and are a plurality of all votes cast for all the candidates for said office at said election, and this contestant, John J. Carney, therefore alleges that he was duly and legally elected and entitled to a certificate of election to the office of Congress- man from the second congressional district of the State of Oklahoma, and that the said contestee was not elected to said office, and that therefore your con- testant is duly entitled to represent the second congressional district of the State of Oklahoma in Congress for the period prescribed therefor by law. 3 4 CAEISTEY VS. MORGAN. Fonrtli. That at the time of said election, and for some time previous there- to, there had been in full force and effect in the State of Olilahoma a certain law, commonly known as the "grandfather clause," and which has been con- strued and upheld by the supreme court of the State of Olilahoma previous to said election, which said law provided, in substance and effect, that no person should register as an elector or be allowed to vote in any election held in the State of Oklahoma unless he were able to read and write anv section of the constitution of the State of Oklahoma, but likewise provided tha^t no person who was, on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation and no lineal descendant of such person should be denied the right to register and vote because of his inability to so read and write sections of said constitution ; and said law further made it the duty of the precinct election inspectors hav- ing in charge the registration of such electors to enforce the provisions of this, section at the time of registration provided registration be required, and that where registration was dispensed with that the provisions of said law should be enforced by the precinct election officers when electors should apply for their ballots to vote. A true and correct copy of said law is hereto attached, marked " Exhibit A," and expressly made a part hereof. Fifth. That in the cities of said congressional district registration was re- quired by law, and that the registration officers in the cities of said congressional district wrongfully permitted to register at said election 1,021 negroes, who voted for the contestee at said general election upon the 5th day of November, A. D. 1912; all of which facts, as set forth in this paragraph of this notice of contest, were at said time, and are now known to the said contestee, Dick T. Morgan, the said number of illegal voters, registered as in this paragraph con- tained, not having qualified under the said law of the said State of Oklahoma, and that by so voting, as aforesaid, the said votes changed the result of said election wrongfully in favor of the said contestee. Sixth. That at the time of said election, and for some time prior thereto, and at all the times mentioned in this paragraph of this notice of contest, one Homer T. Boardman was the duly appointed, qualified, and acting United States dis- trict attorney for the western district of the State of Oklahoma, and which comprised, then and there, the territory of the second congressional district of the State of Oklahoma ; that prior to said election, and with the consent, knowl- edge, and connivance of the said Dick T. Morgan, contestee, there was sent to every precinct election official in the second congressional district of the State of Oklahoma an opinion by the said Homer T. Boax'dman upon the said so-called grandfather clause set forth in the above paragraph, as to its Ineffectuality, and accompanying said opinion was a warning circular to the said precinct election officials, warning them that they might go to the penitentiary, and to talk It over with their wives, and calling their attention to the fact that two men had been convicted already for violating the said law, for the express purpose of intimidating the precinct election officials who conducted the said election for Congressman in the second congressional district, and to prevent them from conducting said election according to law. A true and correct copy of the said opinion of the said United States district attorney and a true copy of the said warning circular are hereto attached, marked " Exhibit B " and " Exhibit C," respectively, and expressly made a part hereof. That the said opinion and warning circular were duly received by each and every precinct election official in the second congressional district of the Slate of Oklahoma who presided in that capacity at the said general election, preventing the holding of a fair and legal election and causing the said officials to let vast numbers of illegal negro voters to vote at said election to such an extent in the several precincts of the said congressional district where negroes A^ote, as to absolutely render void the election held in the said negro precincts ; that with the said illegal negro votes cast in the said negro precincts, the names of the said precincts and the numbers of votes cast therein being well known to this contestee, it is impos- sible to determine what would have been the result in said precincts. Contestant further alleges that said threatening circular letter and opinion of the said United States district attorney intimidated the said precinct election officials of the said congressional district to that extent that they permitted vast number of disqualified voters to vote, rather than take the chance of Fed- eral prosecution, as threatened, and that by so doing they permitted enough disqualified and illegal voters to vote to give the said contestee a plurality upon the face of the returns, when in truth and in fact the contestant, the nearest CARNEY VS. MORGAN. 5 competitor to said contestee in said congressional race, according to the wrong- fully announced vote, was entitled to the said certificate of election, lie having received of the legal votes cast a plurality over the said contestee, Dick T. Morgan, of 2,577 votes ; that the said contestee well knew that said threatening circular letter and opinion had been sent to every precinct election official in the second congressional district, and had been received by said election officials in due course of mail prior to said election, and connived at, encouraged, and otherwise aided and abetted the said Homer T. Boardman, and other Federal officials in the State of Oklahoma, in intimidating the said precinct election officials and in causing them tc fail to perform their official dutes as required by law, on account of which failure to perform their said duties as precinct electiou officials, fraud was perpetrated upon this contestant, and he was deprived of the certificate of election, and that if the said election be purged of said fraud your contestant would, as aforesaid, have a plurality over the contestee of the aforesaid number of 2,577 votes. Seventh. That Oklahoma County, Okla., is in the said congressional district; that in the several precincts where said fraud and intimidation and threats were used to the advantage of the said contestee, as set forth in the above paragraph, there were 1.20S votes cast for the said contestee and 508 for the said contestant, the following precincts being so affected in said county by said fraud and intimidation, and it being impossible to determine what the result would have been in each of said precincts without said illegal vote : Luther Township, Deep Fork Township, Lincoln Township, town of Luther, Choctaw Township, Crutcho Township, Dewey Township, Springer Township, ward 2, precinct 6, of Oklahoma City, and ward 2, precinct 9, of Oklahoma City ; that in each of said townships and precincts the precinct inspectors made an amended return to the original return, setting forth that no legal election was held in any of said townships or precincts, that the officials were intimi- dated and threats of criminal prosecution made, and asking that the vote of said townships and precincts be not counted ; that it would be too cumbersome to set up each amended return in said Oklahoma County, township, and pre- cincts, but that a true and correct copy of the returns, so made by the pre- cinct election officials in each of said townships and precincts of said Oklahoma County is hereto attached, marked " Exhibit D," and expressly made a part hereof, and that upon the hearing of this contest proof will be introduced showing that in each of said precincts said amended returns were so made, and that the county election board of Oklahoma County, Okla., wrongfully refused to correct the returns in conformity with said amended returns and to reject the vote in such townships and precincts, each of said precincts and townships constituting in itself an election precinct at said election. That in said Oklahoma County fully 700 negroes, who were illegal voters, were permitted to vote without the test prescribed in the said so-called grand- father clause, and that said number of votes did change the result on the face of the returns for the said contestee and against the said contestant ; upon all of which matters, as set forth in this paragraph, contestant desires to offer due proof upon the hearing of this contest. Eighth. That in Blaine County, which was then and there in the said congressional district, and where the precinct election officials were intimidated into permitting large numbers of illegal negro voters to vote, on account of the matters and things and in the manner heretofore set forth in paragraph 6 of this notice of contest, and without applying the test provided for in said so-called grandfather clause, and in the townships of East Watauga, East Lincoln, West Dixon, River, Watanga, Flynn, Logan, Arapaho, Cedar Valley, Wells, and in the third ward of Geary, all of which are in the said Blaine County, there was 247 illegal votes cast in favor of the contestee as against the contestant, and that upon the hearing of this contest contestant desires to, and will, introduce proof of the same. Ninth. That in Canadian County, at said election, and in the precincts A and B, and of the second ward of El Reno, there were cast, in the manner and form heretofore set out in this petition, 162 illegal votes in favor of the con- testee as against the contestant, and on account of the matters and things as heretofore set forth in the sixth paragraph of this notice of contest, the pre- cinct election officials, in fraud of the rights of this contestant, and in fear of criminal prosecution, and on account of the threats aforesaid, so permitted said illegal votes to be cast, and that without said illegal votes of the said persons in said Canadian County in said precincts it would be impossible to determine what the real result would have been, and that upon the hearing of this con- 6 CARNEY VS. MORGAN. test your contestant will introduce proof in support of the charge set forth in this paragraph. Tenth. That in Caddo County, which was then and there in said congressional district and in the first ward of the city of Anadarko, and in the second ward of the city of Anadarko. an.-d in and townships in said Caddo County, there were 162 votes cast in favor of the contestee as against the con- testant on account of the matters and things heretofore set forth herein in reference to the fraud and intimidation used as against the precinct election officials of said county, and that it would be impossible to determine what the lesult would have been in the said precincts and townships of said Caddo County without the illegal vote cast therein, and that upon the hearing of this contest your contestant will introduce proof in support of the matters and things set forth in this paragi'aph. Eleventh. That in Custer County, and in the ward of the city of Clinton, and in Weatherford, ward 1 and wards 2 and 3, and Cedar and Grant precincts townships, there were 144 illegal votes cast and recorded in favor of the said contestee as against this contestant, on account of the matters and things set forth in paragraph sixth of this notice of contest, and on account of the fraud, threats, and intimidation, as aforesaid, so as to prevent the said election officials of the said Custer County from conducting in said precincts a fair and honest election and from requiring the test provided by the said grandfather clause, and that it would be impossible to determine what the result would have been in said precincts and townships in said Custer County without the said illegal votes so cast, and that upon the hearing of this contest the said contestant will offer proof in support of the matters and things set forth in this paragraph. Twelfth. That in Alfalfa County, Okla., and in and townships, there were 81 illegal votes cast and recorded in favor of the contestee as against the contestant, on account of the matters and things heretofore set forth in reference to the fraud and intimidation used to prevent the said precinct election officials from discharging their duties as election officials, and that in said townships it would be impossible to determine what the result would have been without said illegal votes, and that upon the hearing of this contest your contestant will offer proof in support of the matters and things set forth in this paragraph. Thirteenth. That in reference to the illegal votes cast in Oklahoma County, Blaine County, Canadian County, Caddo County, Custer County, and Alfalfa County, all of which are in the paid congressional district, and were so in the said congressional district at the said general election of November 5, A. D. 1912, the precinct election officials were intimidated by the said Boardman letter and the said threatening circular, and that each and every one of said precinct election officials received the same in due course of mail prior to said election, and in fear of criminal prosecution permitted large numbers of illegal votes to be cast, without which, as aforesaid, your contestant, upon the face of the returns themselves, would have had a clear plurality over the said contestee; and your contestant asks that the votes so illegally cast in the said precincts be rejected, because the election in said precincts and townships in said counties were not conducted according to law, as aforesaid, and because of said fraud, threats, and intimidation were connived at and encouraged by the said contestee and were for his benefit, although your contestant did protest at said election and prior thereto, and still protests against the same. Fourteenth. That in seven precincts of Texas County, which was then and there in said congressional district, and is now in said congressional district, in the general election held for the said office on the 5th day of November, A. D. 1912, no returns were made to the county election board by the precinct election officials of said seven precincts, although elections were held in said seven precincts, and that the names of said precincts were and are well known to this contestee ; that the precinct election officials held elections in said seven precincts upon the 5th day of November, A. D. 1912 ; that the ballot boxes were securely locked and the ballots deposited therein ; that since said election the said ballots have not been tampered with ; that they have been under lock and key and securely protected since said election, and that upon the hearing of this contest and the taking of proof in support of the same your contestant re- quests that said ballot boxes containing the ballots cast for said seven precincts in said Texas County be duly presented for opening, and that the ballots in said seven precincts be then and there counted as between your contestant and the contestee, and that the result thereof be ascertained according to law, your CARNEY VS. MORGAN. "^ 7 contestant alleging that the vote in said precincts will show that your con- testant received 318 votes in said seven precincts and your contestee 162 votes, and that your contestant have an order requiring the county election board of Texas County securely to keep said ballot boxes of the said seven precincts, to the end that the ballots cast in the said seven precincts may be counted as affecting the result as between your contestant and contestee, and so that proof may be introduced, when evidence is taken in support of this contest, as to the vote in said seven precincts in said Texas County. Fifteenth. Tour contestant further alleges and states that in Logan Township, Beaver County, Okla., which was then and there and is now in the second con- gressional district of the State of Oklahoma, no election was held according to law, and that upon the fact of the i-eturns your contestee is accredited with 81 votes in said Logan Township and your contestant with 44 ; that every plain and mandatory provision of the election laws of the State of Oklahoma were violated in said precinct; that during the day as high as 12 at a time were in the precinct voting booth, showing each other their ballots and telling each other how to vote ; that as high as 20 were in the polling place at once, in violation of the mandatory provisions of the election laws of the State of Oklahoma, and that the vote in said precinct (the same being Precinct No. 1, Logan Township, Beaver County) should be rejected, and that your contestant will offer proof in support of the allegations of this paragraph upon the hearing of this contest. Sixteenth. That in each of the precincts of Texas County, Okla., the election was not held according to law, and that there were in said county cast, illegally, for the contestee 398 votes, and that your contestant, upon the hearing of this contest, will offer proof as to the conduct of the election in the said Texas County, and asks that an order be issued to the county election board of the said Texas County to securely keep all the ballot boxes of said county until the same may be duly opened by lawful order upon the taking of testimony in this contest ; that the pretended official returns from said Texas County only gave your contestant a plurality of 49 votes over the contestee, when in truth and in fact in said Texas County your contestant had a plurality over the said con- testee of 447 votes. Seventeenth. That in each and every county of said congressional district, fraud, intimidation, and illegal voting was practiced in behalf of the said con- testee and as against the said contestant, in support of which your contestant will offer proof at the hearing of this contest, and that said fraud, illegal voting, and intimidation were enough to change the result in favor of this contestant as against the contestee. Eighteenth. That upon the 7th day of November, A. D. 1912, your contestant duly filed his protest and objection to the issuance of a certificate of election as Member of Congress from the second congressional district of the State of Oklahoma to your contestee, Dick T. Morgan, but that, in fraud of the rights of this contestant, the said State election board as aforesaid issued a certificate of election to the said contestee as aforesaid. Nineteenth. That in said election in said congressional district 1,740 negroes Voted ; that none of said negroes had ever been legally enfranchised ; that none of them were qualified voters of the State of Oklahoma or of the United States ; that the negro race had never been enfranchised according to law, and that the so-called fourteenth and fifteenth amendments to the Constitution of the United States of America have never been legally adopted, and are not now and were not then and were not at the general election of November 5, 1912, in full force and effect, and that said negroes voted for this contestee, and that without said illegal negro vote this contestant would have been elected upon even the face of the returns. Wherefore your contestant, John J. Carney, gives contestee this notice that he Intends to contest the said election, and asks that he be declared the duly elected Member of Congress from the second congressional district of the State of Oklahoma ; that he be awarded his seat as a Member of Congress from the said congressional district according to law; that on account of the fraud, intimidation, and threats, as aforesaid, the election in the said congressional district, in so far as it affects this contest, be thoroughly probed and investigated and the result determined as the evidence and law will warrant, and for such other relief as your contestant, John J. Carney, may be entitled to in the premises. John J. Carney, Contestant, By Geo. H. Giddings & E. J. Giddings, Attorneys for Contestant. 8 CAKNEY VS. MORGAN. State of Oklahoma, Oklahoma County, ss: John J. Carney, of lawful age, being first duly sworn, deposes and says that he is the contestant above named; that he has read the above and foregoing notice of grounds of contest; and that the statements therein contained are true, as he verily believes. John J. Cabney. Subscribed in my presence and sworn to before me this the 12th day of December, A. D. 1912. [SEAL.] Mary S. Hill, Notary Public, Oklahoma County, Okla. My commission expires November 21, 1915. ACCEPTANCE OF SERVICE. I, Dick T. Morgan, contestee named in the foregoing notice of grounds of contest, hereby acknowledge service of a true and correct duplicate of the within notice of grounds of contest upon me, at the city of Washington, in the District of Columbia, on this the day of December, A. D. 1912. Contestee. Exhibit A. [Amendment to the constitution of the State of Oklahoma, section 4a of article 3.] No person shall be registered as an elector of this State or be allowed to vote in any election held herein unless he be able to read and write any sec- tion of the constitution of the State of Oklahoma ; but no person who was, on January 1, 1866, or at any time prior thereto entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person shall be denied the right to register and vote be- cause of his inability to so read and write sections of such constitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration be required. Should registration be dispensed with, the precinct election officers, when electors, apply for ballots to vote. Exhibit B. Department of Justice, Office of the United States Attorney, Western District of Oklahoma, Guthrie, October 31, 1912. Mr. Fred A, Wagoner, Deputy County Attorney, Chandler, Okla. Dear Sir: I have your letter asking whether at the coming general election the precinct election ofiicers can enforce the law commonly termed the " grand- father law," and escape punishment therefor in the Federal courts on a show- ing of good faith in enforcing said law. I presume your question has arisen on account of the apparent conflict between the decision of the supreme court of the State of Oklahoma and the United States District Courts for the Eastern and Western Districts of Oklahoma on the constitutionality of the law, the State supreme court having held the law constitutional, while the two United States courts in the State have held it unconstitutional and void. It must be borne in mind that this all involves purely State matters as well as Federal matters, and in considering the same these two phases of the law must be kept in mind. As to the purely State questions involved in the law, I do not express any opinion, the same not being within the jurisdiction of this office, and this opinion is directed solely to the Federal question involved ; that is, the application of the grandfather law to negroes who, on account of race, color, and previous condition of servitude, are not permitted to vote without CAEJSTEY VS. MOKGAN. 4 9 submitting to certain tests of reading and writing. Nor shall I argue the question of the constitutionality of the law, for the reason that, after very ex- tensive argument by some of the best legal talent of the State, it has already been in positive terms declared unconstitutional by the two United States district courts in this State, which decisions are now the law of this State as far as the Federal questions therein involved are concerned, having never been reversed or modified. Knowing this, that the Federal courts having jurisdiction over the entire State have declared the law to be unconstitutional and of no force and effect, the question arises whether the precinct election officers can enforce it against negroes on account of their race and color, and then when prosecuted in a Fed- eral court for doing so defend the prosecution on a plea of good faith in enforcing the law. The question of good faith must be determined with reference to the decision of the courts on the subject and having jurisdiction thereof, so there can be no good faith in acting in direct conflict with the known decisions of the courts, although in the absence of any such decisions such defense might be made. In the case against Beall and Quinn, who were convicted in the Federal court at Enid, in 1911. for violating section 19 of the Federal Criminal Code in enforc- ing the grandfather law at the general election in November, 1910, the de- fense of good faith was attempted, although without success, as the verdict of the jury disclosed. However, in that case at the time the acts were com- mitted which caused a prosecution — that is, in November, 1910 — no Federal court had passed upon the law. Furthermore, all precinct election officers are quasi judicial officers in a quasi judicial capacity, and being officers of inferior and restricted jurisdiction are all bound by the decisions of the Federal courts declaring the law uncon- stitutional when applying the same to negroes desiring to vote for Members of Congress and electors for President, and the defense of good faith will not protect them from prosecution for enforcing the law in direct conflict with the Federal decisions. Respectfully, Homer N. Boardman, United States Attorney. Exhibit C. talk it over wit.h your wife, mr. election official, and remember that you will go to the penitentiary if you violate the Federal election laws, and not Gov. Cruce nor his brother, Attorney A. C. Cruce. You will remember that the latter defended Beall and Quinn, who last year were convicted in the United States court at Enid and sentenced to the penitentiary for violating the Federal election law, and the State paid the attorneys in these cases about $14,000 for defending these two men. This averages about $7,000 per case. It is not likely that the people of this State, already overburdened with taxes, will be willing to continue to pay out $7,000 every time an election official violates the Federal statutes. The people are not sufficiently anxious to enrich the governor's brother. Attorney A. C. Cruce. Besides, what's the use? Where conviction is sure, there is nothing gained by paying out big sums of money for attorney fees. That is to say, there is nothing gained by anyone but the attorney. Exhibit D. Ametided return. State of Oklahoma, Oklahoma County, ss: , of lawful age, declares that at the general election held in the State of Oklahoma on the 5th day of November, 1912, he was the duly qualified, appointed, and acting -^ of precinct — , ward ■ — , Oklahoma City, said State. That an election was held in said precinct on that day; that intimidation was used against the election officials in said precinct, and threats of criminal prose- cution made to the end that many negroes, who would be illegal voters, might vote; and that at said election in said precinct so many negroes did vote under the above-mentioned circumstances that it is impossible to determine what the rO CAKNEY VS. MORGAN. vote and result in said precinct would have been had not such facts and con- ditions existed as above stated; and this affiant asks that this amended return be made a part of the original returns from said precinct, and that said vote be not canvassed and the result in said precinct be not declared. Subscribed and sworn to before me this day of , 1912. Notary Puhlic. My commission expires . of lawful age, being duly sworn, deposes and says that he served upon the Hon. Dick T. Morgan, contestee, a true and correct duplicate of the within notice of grounds of conest of John J. Carney, on the day of December, A. D. 1912, by delivering to the said Hon. Dick T. Morgan, personally, said true and correct duplicate, at . Subscribed and sworn to before me this day of December, 1912. AN8WER TO NOTICE OF CONTEST. Comes now Dick T. Morgan, the contestee in tlie above-entitled cause, and for answer to the notice of contest of the said contestant, contesting the elec- tion of this contestee as Representative to the Sixty-third Congress of the United States of America, from the second congressional district of the State of Oklahoma, at the general election held in said district in said State on the 5th day of November, 1912, and reserving unto himself the right to hereafter object to the manner and time of the service and filing of the contestant's notice of contest, and reserving unto himself the right to hereafter object to said notice of contest because of the insufliciency, incompetency, irrelevancy, immateriality, vagueness, and uncertainty of each, every, and all of the allega- tions and grounds of contest contained in said notice of contest of said con- testant, and insisting that the said contestant be placed upon strict proof of all allegations contained in the several grounds and paragraphs contained in said notice of contest: First. Denies each, every, and all of the material allegations contained in and under the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth grounds or paragraphs of contest contained in said notice of contest, and denies each and every and all of the material allegations contained in said notice, save and except such as may hereafter be specifically admitted. Second. For answer to the statements and allegations contained in para- graph 1 of contestant's notice of contest this contestee alleges and states that he specifically denies that at the regular election held in the second congressional district of the State of Oklahoma on the 5th day of November, 1912, the said contestant, John J. Carney, was the duly and regularly chosen and qualified nominee of the Democratic Party for the oflice of Congressman from the second district of the State of Oklahoma, as will be hereinafer set up, though this contestee admits that the name of the said contestant, John J. Carney, appeared upon the oflicial ballot in said election as the candidate of the said party for the said office, and this contestee admits that he, the said contestee, Dick T. Morgan, was the duly and regularly chosen and qualified nominee of the Re- publican Party for the office of Congressman from the second district of the State of Oklahoma ; that his name appeared upon the official ballot in said election as the candidate of said Republican Party for such office, and that there was an election held for said office in the State of Oklahoma on the 5th day of November, 1912. Third. For answer to the statements and allegations contained in paragraph 2 of contestant's notice cf contest this contestee admits that on or about the 22d day of November, 1912, the State election board of the State of Oklahoma canvassed the official returns of the various counties in said congressional dis- trict, and tabulated the votes returned for contestant and this contestee, and that upon the completion hereof said State election board announced that this contestee, Dick T. Morgan, was duly and legally elected to said office, and that thereupon said State election board, on or about said 22d day of November, 1912, issued and delivered to this eontes'ee, Dick T. Morgan, a certificate of such election. Fourth. For answer to the statements and allegations contained in para- graph 3 of the contestant's notice of contest this contestee admits, as herein- after specifically set forth under paragraphs 2 and 3 of this contestee's cross petition, and only to that extent, that the oflftcial returns of the vo'es cast at said election for the said contestant and said contestee, as made by the various precinct election boards in the counties of the said second congressional dis- trict of the State of Oklahoma to said State election board, and, as aforesaid, canvassed by the said State election board, were and are false, imtrue, and incorrect, and did not and do not show the true and correct number of legal votes cast for the said alleged nominee, John J. Carney, and the contestee, Dick T. Morgan, at said elecion for said office : but this contestee denies specifically 11 12 CARNEY VS. MORGAN-. fnfJ^ said alleged nominee, John J. Carney, at said election received 25,171 ^otes, and this contestee denies that he only received 22,594 votes and alle-es and states as will be hereinafter shown under sections 2 and 3 of his c?Sss petition set out specifically, that he in truth and in fact received "4 945 votes and that said 24,945 votes so received by this contestee as afo/esald were and are a plurality of all votes cast for all the candidates for said officrat saW election; and this contestee specifically denies that the said alleged nominee John J. Carney, the contestant herein, was duly and legally elected or entitledi to a certificate of election to the office of Congressman frmn the seJond cTn gressional district of the State of Oklahoma, or that he, the said alleged nomi- ^,^,!.'/^?V^^^*^S; ^^^®?ul^^"^y ^^titled to represent the second congressional dis- trict o± the State of Oklahoma in the Sixty-third session of Congress for the period prescribed therefor by law. & xui uue Fifth. For answer to the statements and allegations contained in the fourth paragraph of contestant's notice of contest this contestee further admits that on the 2d day of August, 1910, the people of the State of Oklahoma adopted an amendment to the constitution of the State of Oklahoma substantially as set forth m paragraph 4 of said notice of contest of said contestant, and this con- testee denies that said amendment is valid under the Constitution of the United States or that its provisions are applicable in an election for Representative in the Congress of the United States. Sixth. For answer to the statements and allegations contained in the fifth paragraph of contestant's notice of contest this contestee further fidmits that under the terms of the amendment to the constitution of the State of Okla- homa and under the laws of the State of Oklahoma registration was required of all voters in cities of the first class as a prerequisite to the right to vote, but this contestee specifically denies that the registration officers in cities in said congressional district wrongfully permitted 1,021 negroes to register at said election, who voted for said contestee at said general election upon the 5th day of November, 1912; and especially does this contestee deny that any or all of the said alleged facts as set forth in paragraph 5 of said notice of said contestant were at said time or are now known to the said contestee, or that the said number of or any illegal votes so registered did not qualify under the terms and provisions of the said amendment to the constitution of the State of Oklahoma, and this contestee denies that any negroes voted in said cities except such as were duly registered after qualifying under the said laws of the State of Oklahoma. And for further answer this contestee alleges and states that said allegations in said paragraph concerning the number of illiterate negroes or negroes who did not qualify for registration under the terms and provisions of the so-called grandfather clause could not in any event be true, for the reason that there were at that time in cities in the said second congressional district only 213 illiterate male negroes over the age of 21 years, none of whom were registered, and for this reason this contestee hereby objects to the vague and uncertain reference in said contestant's notice of contest to the number of negroes so alleged as having been wrongfully registered in the cities in said district ; and this contestee asks and demands that the said contestant forthwith furnish to this contestee the names and addresses of the said alleged 1,021 negroes which said contestant alleges were unlawfully and wrongfully permitted to register. Seventh. For answer to the statements and allegations contained in the sixth paragraph of contestant's notice of contest this contestee further admits that at the time of said election, and for some time prior thereto, and at all times mentioned in the sixth paragraph of the contestant's notice of contest, one Homer N. Boardman was the duly appointed, qualified, and acting United States district attorney for the western district of the State of Oklahoma ; that practically all of the second congressional district is within that part of the State of Oklahoma which comprises the said western judicial district of the State of Oklahoma, but this contestee is informed and believes that no letter or opinion of the sort, kind, or character as set forth in said sixth paragraph of said notice of contest of said contestant, a copy of said alleged letter or opinion being attached to contestant's notice of conlest and marked "Exhibit B," was written by the said Boardman, and this contestee therefore denies that said Boardman wrote a letter or opinion of the sort, kind, or character as set forth in said notice of contest, and demands strict proof of the same; and if the said Boardman did so write a letter of said sort, this contestee denies that it was written with the consent, knowledge, approbation, or connivance of this contestee ; and this contestee denies that he entered into a conspiracy to, or CAENEY VS. MOKGAN. 13 was a party to, or laad any knowledge until long after the said 5tli day of Novem- ber, 1912, of any claim that any letter of the sort or kind or character as set forth in said sixth paragraph of said notice of contest had been in circulation in any manner whatsoever, and this contestee denies that said alleged so-called warning circular, an alleged copy of which is attached to said contestant's notice of contest and marked " Exhibit C," was written by the said Boardman, and denies that said alleged " warning circular " wag written or composed by the contestee, or with the consent, knowledge, approbation, or connivance of the contestee; and this contestee denies that he entered into a conspiracy to, or was a party to, or had knowledge until long after the said 5th day of Novem- ber, 1912, of any claim that any circular of this kind or character "as set forth in said sixth paragraph of said notice of contest had been in circulation in any manner whatsoever ; and this contestee neither admitting nor denying that said alleged letter or opinion or said alleged " warning circular " were in fact mailed to every precinct election official in the second congressional district of the State of Oklahoma, for the reason that he is totally unacquainted with the truth or falsity thereof, and he therefore denies said allegation and demands and prays that contestant be placed upon strict proof of the same; but should it appear that copies of the said alleged opinion and said alleged "warning, circular " were in fact so sent to every precinct election official in said second congressional district of the State of Oklahoma, this contestee denies that it was done with his consent, knowledge, or connivance, or that they had the effect of intimidating the precinct election officials who conducted the said elec- tion for Congressman in the second congressional district of the State of Okla- homa or prevented them from conducting said election according to law; and this contestee denies that they had the effect of preventing the holding of a fair and legal election and denies that they had the effect of causing said elec- tion officials to allow any illegal or disqualified negro voters to vote at said election; and this contestee denies that the precinct election officers in any precinct in said district permitted any negroes to Aote except such as were under said alleged amendment to the constitution of the State of Oklahoma and the laws of the State of Oklahoma qualified to vote; and this contestee alleges and states that if any negroes were allowed to vote in any election pre- cinct in said second congressional district said negroes were legally qualified electors under the constitution of the State of Oklahoma and amendments thereto, and under the laws of the State of Oklahoma, and were entitled to vote and exercise the right of suffrage in the selection of a Member of Congress from the second congressional district of the State of Oklahoma as one of the privileges guaranteed to them by the Constitution and laws of the United States. And this contestee denies specifically that the names of illegal negro voters are known to him ; and this contestee hereby objects co the vague and uncertain reference in said sixth paragraph of said contestant's notice of contest as to the number of alleged illegal negro votes, and this contestee hereby demands of said contestant that he furnish to this contestee forthwith the names and addresses of any negroes who, as said contestant claims, were illegally or im- lawfully allowed to vote at said election. That this contestee is informed and believes that the election officers in all precincts in said district in which negroes presented themselves to vote applied the test required under the amendment to the constitution of the State of Oklahoma, as set forth hereinbefore, and that all negroes who were allowed to vote in said district were legal and qualified electors, and that their votes should be counted; and this contestee alleges and states that even if the statements and allegations contained in said sixth ground of said notice of contest were true that it would not be sufficient ground for throwing out and not counting for this contestee said votes, or any of them. And this contestee further denies that he had at any time prior to the said date of said election, to wit, the 5th day of November, 1912, or that he had at any time up to this date, acquired knowledge that said letter or opinion and said " warning circular " had been sent to every or any of the precinct election officials in the second congressional district of the State of Oklahoma, or that they had been or were received by said election officials in due course of mail, or in any other manner prior to said election ; and this contestee denies that the said Homer N. Boardman or other Federal officials in the State of Okla- homa intimidated the said precinct election officials or caused them to fail to perform their duties as required by law ; and this contestee denies that said election officials were intimidated or failed to perform their official duties as precinct inspectors as required by law; and this contestee denies that he con- nived at, encouraged, or otherwise aided or abetted the said Homer N. Board- 14 CARNEY VS. MORGAN. man or other Federal officials in the State of Oklahoma in intimidating the said precinct election officials or in causing them to fail to perform their official duties as required by the constitution of the State of Olilahoma, the amend- ments thereto, and the laws of the State of Oklahoma ; and this contestee denies the legal conclusion of the said contestant that fraud was perpetrated upon the contestant or that he was deprived of the certificate of election or that the contestant has or would have a plurality in said election over the contestee. Eighth. For answer to the statements and allegations contained in paragraph 7 of said contestant's notice of contest, this contestee admits that Oklahoma County, Okla., is in the said second congressional district ; that this contestee denies that in the said precincts of said county, as set forth in said paragraph, to wit, Luther Township, Deep Fork Township, Lincoln Township, town of Luther. Choctaw Township, Crutcho Township, Dewey Township, Springer Township, ward 2, precinct 6, of Oklahoma City, and ward 2, precinct 9, of Oklahoma City, any fraud, intimidation, or threats were used to the advantage of the said contestee, or that any illegal votes were cast in said precincts, and this contestee denies that the precinct election officials in said election precincts allowed any illegal or disqualified negro voters to vote at said election, and this contestee denies that the precinct election officials allowed or permitted any negroes to vote, except such as were qualified to vote under the constitution of the State of Oklahoma and amendments thereto and under the laws of the State of Oklahoma and were entitled to vote and exercise the right of suffrage in the selection of a Member of Congress from the second congressional dis- trict of the State of Oklahoma, as one of the privileges guaranteed to them by the Constitution and laws of the United States. The contestee hereby objects to the vague and uncertain reference in said paragraph 7 of contestant's notice of contest to the number of negroes who, as claimed by the contestant, were illegally allowed to vote, and this contestee alleges and states that there were at that time in said Oklahoma County only 286 illiterate male negroes over the age of 21 years, and this contestee hereby demands of the said contestant that he furnish to this contestee forthwith the names and addresses of any and all negroes whom the contestant claims were illegally and unlawfully allowed to vote at said election in said precincts. That this contestee is informed and believes, and therefore states it to be a fact, that the precinct election officers in said precincts when negroes presented themselves to vote applied the test required under and by the terms of the amendment to the constitution of the State of Oklahoma, as heretofore set forth herein, and that all negroes who were allowed to vote in said above- mentioned election precincts were legal and qualified electors and voters and that their votes should be counted, and this contestee alleges and states that even if the statements and allegations contained in said seventh paragraph of contestant's notice of contest were true that it would not be sufficient ground for throwing out and not counting for this contestee said votes in said precincts or any of them. That in respect to the said alleged amended return of the precinct election officers in said above-mentioned precincts in Oklahoma County, this contestee neither admits nor denies the allegations in said seventh paragraph of said contestant's notice of contest, for the reason that he is personally totally unacquainted with the truth or falsity of the said allegations, but he is in- formed and believes and therefore states it to be a fact that none of the said precinct election inspectors in said above-mentioned precincts in Oklahoma County made, executed, or delivered to the county election board of Oklahoma County, State of Oklahoma, an amended return to the original return, setting forth that no legal election was held in said precincts or that the said officials were intimidated or threatened with criminal prosecution of any sort whatso- ever, or that said precinct election officials asked by said alleged amended return that the vote in said township or election precinct be not counted, and this contestee hereby demands of the said contestant that he forthwith furnish to this contestee the names and addresses of said precinct election officials signing said alleged amended returns, if in fact they were so made, and that the said contestant forthwith furnish to this contestee the names and addresses of the 700 negroes who were illegally permitted to vote at said election without the test prescribed by the said amendment to the constitution of the State of Oklahoma, commonly known and referred to by the contestant as the " grand- father clause," and this contestee denies that the said county election board of Oklahoma County wrongfully refused to correct the returns in conformity with said alleged amended returns or reject the vote in said townships and CAEISTEY VS. MORGAN. jl5 election precincts, and this contestee alleges and states that even if said amended returns were in fact so made by said precinct election officials, as set forth in said seventh paragraph of contestant's notice of contest, that said alleged amended returns were of no binding force or effect and that said alleged amended returns were not the sort, kind, or character of returns which said precinct election officials were required to make to the county election board of said countj^ of Oklahoma under the terms and provisions of the laws of the State of Oklahoma. Ninth. For answer to the statements and allegations contained in paragraph 8 of said contestant's notice of contest, this contestee admits that Blaine County is and was on said day of said election, to wit, the 5th day of November, 1912, in the second congressional district of the State of Oklahoma ; that this con- testee denies that in the precincts of said county, to wit, the township of East Watonga, East Lincoln, West Dixon, River, Watonga, Flynn, Logan, Arapahoe, Cedar Valley, Wells, and the third ward of Geary, any frauds, intimidation, or threats of the sort or kind or character set forth in paragraph 6 of con- testant's notice of contest, or of any sort, kind, or character whatsoever were used or practiced by anyone, or that for any reason whatsoever the election officials of said precincts permitted any negros to vote illegally or that there were any illegal votes cast in favor of this contestee as against said contestant, or that any fraud, intimidation, or threats were used therein to the advantage of this contestee, or that there were any illegal votes cast in said precincts, and this contestee denies that the precinct election officials in said election precincts allowed any illegal or disqualified negro voters to vote at said election, and this contestee denies that the precinct election officials allowed or permitted any negro to vote, except such as were qualified to vote under the constitution of the State of Oklahoma and amendments thereto and under the laws of the State of Oklahoma and were entitled to \ote and exercise the right of suffrage in the selection of a ISIember of Congress from the second congressional dis- trict of the State of Oklahoma, as one of the privileges guaranteed to them by the Constitution and laws of the United States. The contestee hereby objects to the vague and uncertain reference in said eights paragraph of contestant's notice of contest as to the number of negroes who, as claimed by the contestant, were illegally allowed to vote, and this contestee alleges and states that there were at said time only 82 illiterate male negroes over the age of 21 years in all of said Blaine County, and this contestee hereby demands of the said contestant that he furnish to the contestee forth- with the names and addresses of any and all negroes whom the contestant claims were illegally and unlawfully allowed to vote at said election in said precincts. That this contestee is informed and believes, and therefore states it to be a fact, that the precinct election officers in said precincts when negroes presented themselves to vote applied the test required under and by the terms of the amendment to the constitution of the State of Oklahoma, as heretofore set forth herein, and that all negroes who were allowed to vote in said above- mentioned election precincts were legal and qualified electors and voters and that their votes should be counted, and this contestee alleges and states that even if the statements and allegations contained in said eighth paragraph of contestant's notice of contest were true that it would not be sufficient ground for throwing out and not counting for this contestee said votes in said pre- cincts or any of them. Tenth. For answer to the statements and allegations of the ninth paragraph of contestant's notice of contest, this contestee deaies that in the precincts of said county, to wit, precincts A and B of the second ward of El Reno, any fraud, intimidation, or threats were used to the advantage of this contestee as against the said contestant, or that the precinct election officials in fraud of the rights of the contestant or in fear of criminal prosecution or on account of any threats permitted any illegal votes to be cast, and the contestee denies that any frauds, intimidations, or threats of the sort or kind or character set forth in paragraph 6 of contestant's notice of contest, or of any sort, kind, or character whatsoever, were used or practiced by anyone, or that for any reason whatsoever the election officials of said precincts permitted any negroes to vote illegally, or that there were any illegal votes cast in favor of this contestee as against said contestant, or that any fraud, intimidation, or threats were used therein to the advantage of this contestee, or that there were any illegal votes cast in said precincts, and this contestee denies that the precinct election officials in said election precincts allowed any illegal or disqualified negro voters to vote at said election, and this contestee denies that the precinct election 16 CAKNEY VS. MOEGAN. officials allowed or permitted auy negroes to vote, except such as were qualified to vote under tlie constitution of the State of Oklahoma and the amendments thereto and under the laws of the State of Oklahoma and were entitled to vote and exercise the right of suffrage in the selection of a Member of Congress from the second congressional district of the State of Oklahoma, as one of the privileges guaranteed to them by the Constitution and ! ''vs of the United States. The contestee hereby objects to the vague and uncertain reference in said ninth paragraph of contestant's notice of contest to the number of negroes who, as claimed by the contestant, were illegally allowed to vote, and this contestee alleges and states that there were at said time only 34 illiterate male negroes over the age of 21 years in all of said Canadian County, and this contestee hereby demands of the said contestant that he furnish to the contestee forth- with the names and addresses of any and all negroes whom the contestant claims were illegally and unlawfully allowed to vote at said election in said precincts. That this contestee is informed and believes, and therefore states it to be a fact, that the precinct election officers in said precincts when negroes presented themselves to vote applied the test required under and by the terms of the said amendment to the constitution of the State of Oklahoma, and that all negroes who were allowed to vote in said above-mentioned election precincts were legal and qualified electors and voters and that their votes should be counted, and this contestee alleges and states that even if the statements and allegations contained in said ninth paragraph of contestant's notice of con- test were true, that it would not be suflicient ground for throwing out and not counting for this contestee said votes in said precincts or any of them. Eleventh. For answer to the statements and allegations set up in the fenth paragraph of contestant's notice of contest, this contestee alleges and states that he admits that Caddo Countj', Okla.. is in the said second congressional district of the State of Oklahoma ; that this contestee denies that in said pre- cincts of said county as set forth in said paragraph, to wit, the first ward of the city of Anadarko, the second ward of the city of Anadarko, and , townships, all in said Caddo County, any fraud, intimidation, or threats were used to the advantage of this contestee as against the said con- testant or that the precinct election officials in fraud of the rights of the con- testant or in fear of criminal prosecution or on account of any threats permitted any illegal votes to be cast, and this contestee denies that any frauds, intimi- dation, or threats of the sort or kind or character set forth in paragraph 6 of contestant's notice of contest, or of any sort, kind, or character whatsoever, were used or practiced by anyone, or that for any reason whatsoever the election officials of said precincts permitted any negroes to vote illegally or that there were any illegal votes cast in favor of this contestee as against said contestant, or that any fraud, intimidation, or threats were used therein to the advantage of this contestee, or that there were any illegal votes cast in said precincts, and this contestee denies that the precinct election officials in said election precincts allowed any illegal or disqualified negro voters to vote at said election, and this contestee denies that the precinct election officials allowed or permitted any negroes to vote, except such as were qualified to vote under the constitution of the State of Oklahoma and amendments thereto, and under the laws of the State of Oklahoma, and were entitled to vote and exercise the right of suffrage in the selection of a Member of Congress from the second congres- sional district of the State of Oklahoma, as one of the privileges guaranteed to them by the Constitution and laws of the United States. The contestee hereby objects to the vague and uncertain reference in said tenth paragraph of contestant's notice of contest to the number of negroes who, as claimed by the contestant, were illegally allowed to A'ote, and this contestee alleges and states that there were at said time only 89 illiterate male negroes over the age of 21 years in all of said county, and this contestee hereby demands of the said contestant that he furnish to the contestee forthwith the names and addresses of any and all negroes whom the contestant claims were illegally and unlawfully allowed to A-ote at said election in said precincts. That this con- testee is informed and believes, and therefore states it to be a fact, that the precinct election officers in said precincts when negroes presented themselves to vote applied the test required under and by the terms of the said amendment to the constitution of the State of Oklahoma, and that all negroes who were allowed to vote in said above-mentioned election precincts were legal and qualified electors and voters and that their votes should be counted, and this contestee aheges and states that even if the statements and allegations con- tained in said tenth paragraph of contestant's notice of contest were true that CAElSrEY VS. MOEGAl^. 17 it M^ould not be sufficient ground for throwing out and not counting for this contestee said votes In said precincts or any of them. Twelfth. For answer to the statements and allegations contained in para- graph eleventh of the contestant's notice of contest : This contestee alleges and states that he admits that Custer County, Okla., is in tlie second congressional district of the State of Oklahoma ; that this contestee denies that in tlie pre- cincts of said county, as set forth in said paragraph, to wit : Ward 1 of the city of Weatherford, ward 2 of the city of Weatherford, ward 3 of the city of Weatherford, Cedar Township and Grant Precinct and Township, any fraud, intimidation, or threats were used to the advantage of the contestee as against the said contestant, or that the pref^inct election officials in fraud of the rights of the contestant or in fear of criminal prosecution or on account of any threats permitted any illegal votes to be cast, and this contestee denies that any frauds, intimidation, or threats of tlie sort of kind or character set forth in paragraph sixth of contestant's iiotice of contest, or of any sort, kind, or character whatso- ever were used or practiced by anyone, or that for any reason whatsoever the election officials of said precincts permitted any negroes to vote illegally, or that there were any illegal votes cast in favor of this contestee as against said contestant, or that any fraud, intimidation, or threats were used therein to th« advantage of this contestee, or that there were any illegal votes cast in said precincts. And this contestee denies that the precinct election officials in said election precincts allowed any illegal or disqualified negro voters to vote at spid election, and this contestee denies that the precinct election officials allowed or permitted any negroes to vote, except such as were qualified to vote under the constitution of the State of Oklahoma and amendments thereto and under the laws of the State of Oklahoma and were entitled to vote and exercise the right of suffrage in the selection of a Member of Congress from the second congres- sional district of the State of Oklalioma, as one of the privileges guaranteed to them by the Constitution and laws of the United States. The contestee hereby objects to the vague and uncertain reference in said eleventh paragraph of contestant's notice of contest to the number of negroes who, as claimed by the contestant, were illegally allowed to vote, and this con- testee alleges and states that there are and were on said election day only 13 Illiterate male negroes over the age of 21 years in all of said county, and this contestee hereby demands of the said contestant that he furnish to the con- testee forthwith the names and addresses of any and all negroes whom the con- testant claims were illegally and unlawfully allowed to vote at said election in said precincts. That this contestee is informed and believes, and therefore states it to be a fact, that the precinct election officers in said precincts when negroes presented themselves to vote applied the test required under and by the terms of the amendment to the constitution of the State of Oklahoma, and that all negroes, who were allowed to vote in said above-mentioned election pre- cincts were legal and qualified electors and voters and that their votes should be counted, and this contestee alleges and states that even if the statements and allegations contained in said eleventh paragraph of contestant's notice of con- test were true that it would not be sufficient ground for throwing out and not counting for this contestee said votes in said precincts or any of them. Thirteenth. For answer to the statements and allegations contained in para- graph 12 of contestant's notice of contest this contestee denies that in said precincts of said county of Alfalfa, as set forth in said paragraph, to wit : and Townships any fraud, intimidation, or threats were used to the advantage of this contestee as against the said contestant, or that the pre- cinct election officials, in fraud of the rights of the contestant, or in fear of criminal prosecution, or on account of any threats, permitted any illegal votes to be cast and the contestee denies that any frauds, intimidation, or threats of the sort of kind or character set forth in paragraph 6 of contestant's notice of contest, or of any sort, kind, or character whatsoever were used or practiced by anyone, or that for any reason whatsoever the election officials of said precincts permitted any negroes to vote illegally or that there were any illegal votes cast in favor of this contestee as against said contestant, or that any fraud, intimidation, or threats were used therein to the advantage of this con- testee, or that there were any illegal votes cast in said precincts, and this contestee denies that the precinct elecion officials in said election precincts allowed any illegal or disqualified negro voters to vote at said election, and this contestee denies that the precinct election officials allowed or permitted any negroes to vote, except such as were qualified to vote under the constitu- tion of the State of Oklahoma and amendments thereto and under the laws 4252—13 2 18 CAHKEY VS. MOBGAIS". of the State of Oklahoma and were entitled to vote and exercise the right of suflxage in the selection of a Member of Congress from the second congressional district of the State of Oklahoma, as one of the privileges guaranteed to them by the Constitution and laws of the United States. The contestee hereby objects to the vague and uncertain reference in said twelfth paragraph of contestant's notice of contest to the number of negroes who, as claimed by the contestant, were illegally allowed to vote, and this contestee alleges and states that there are now and were on said election day no illiterate male negroes over the age of 21 years in said Alfalfa County, and this contestee hereby demands of said contestant that he forthwith furnish to this contestee the names and addresses of any and all negroes whom the contestant claims were illegally and unlaw- fully allowed to vote at said election in said precincts. And this contestee is informed and believes and therefore states it to be a fact that the precinct election officials in said precincts, when negroes presented themselves to vote, applied the test required under and by virtue of the terms of the said amend- ment to the constitution of the State of Oklahoma, and that all negroes who were allowed to vote in said above-mentioned election precincts were legal and qualified electors and voters and that their votes should be counted, and this contestee alleges and states that even if the statements and allegations set forth in said twelfth paragraph of said contestant's notice of contest were true that it would not b sufBcient grovmd for throwing out and not counting for this contestee said votes in said precincts or any of them. Fourteenth. For answer to the statements and allegations contained in para- graph 13 of said contestant's notice of contest, this contestee hereby reiterates and restates all of the allegations and statements by this contestee in paragraph 7 of this his said answer and asks th^'t all of the said statements and allega- tions of said seventh paragraph of this the said contestee's answer be consid- ered as reiterated and restated herein as if the same were fully set out herein, and this contestee hereby refers to and makes said seventh paragraph of this answer a part of this the fourteenth paragraph of this answer, as fully and completely as if the same were set out and rewritten herein verbatim. Fifteenth. For answer to the statements and allegations contained in the fourteenth paragraph of contestant's notice of contest, this contestee admits that Texas County, Okla., is and was, on said day of said election, to wit, on the 5th day of November, 1912, in the second congressional district of the State of Oklahoma, but he denies that in seven precincts in said county, or in any precincts in said county, no returns were mnde to the county election board of said Texas County by the precinct election offic-ials, and this con- testee denies that the names of the said seven election precincts in said county, as to which said contestant in the fourteenth paragraph of his notice of contest alleges no returns were made by the precinct election officials to the said county election board were or are now known to him, and this contes-tee hereby demands that the said contestant forthwith furnish to this contetstee the names of the said alleged seven precincts in which contestant alleges in said fourteenth paragraph of his notice of contest, that no returns were made by the precinct election officials thereof to the county election board of said county ; and this contestee says that he is not informed as to the truth or falsity of the allegation by said contestant in said fourteenth paragraph of contestant's notice of contest, that the ballot boxes in said alleged seven pre- cincts were securely locked, the ballots deposited therein, that since the said election said ballots have not been tampered with and that they have been under lock and key and securely protected since said election, and he there- fore denies said allegations and asks and demands that the contestant be placed upon strict proof thereof; and this contestee asks and prays that said ballots be not counted as prayed for by contestant in said paragraph of said notice of contest for the reason that said ballots have not been kept according to law; that great opportunity has been given to change, alter, mutilate and destroy said ballots, and that at this time the true result of the said vote could not be determined ; and this contestee denies that the counting of said alleged bal- lots as alleged by said contestant would show that said contestant received 318 votes, or that said counting would show that said contestee secured only 162 votes, but this contestee alleges and states that should said ballots be counted, they will show that in said precincts this contestee received many more votes than the said contestant. Sixteenth. For answer to the statements and allegations contained in the fifteenth paragraph of contestant's notice of contest, this contestee admits that Beaver County, Okla., is and was on said day Of said election, to wit, on the GARNEY VS. M0E<5A1S-. 19 5tli day of November, 1912, in the second congressional district of the State of Olclahoma, and that Logan Township is and was on said day in said county of Beaver, but this contestee denies that in said township the election tlierein was not held according to law or that any provision of the election laws of the State of Oklahoma were violated in said precinct, or that during said day as high as 12 at a time were in the precinct voting booth of said Logan precinct, showing each other their ballots or telling each other how to vote, or that there were as many as 20 in said polling place at once, and this contestee alleges and states that even if the said alleged acts so complained of by said contestant did occur, they would not be sufficient to render the election in said precinct void, and this contestee alleges and states that even if the said alleged irregularities should have occurred, that none of the votes cast therein should be thrown out or rejected, for the reason that it is not shown that the said alleged irregularities resulted in an actual miscount of the votes of the duly qualified electors in said precinct as actually cast, or that tlie said alleged irregularities resulted in a failure to express the intent and will of the voters in said precinct as between the contestant and this contestee. Seventeenth. For tmswer to the statements and allegations of tlie sixteenth paragraph of contestant's notice of contest, this contestee denies that in each or any of the precincts in Texas County, Okla., tlie election was not held according to law, or tliat there were in said county cast illegally 398 votes, or any illegal votes, for this contestee, or that in truth or in fact the contestant has a plurality over this contestee in said county; and this contestee expressly objects to the consideration of said ground of contest for the reason that the allegations in said paragraph in reference to said alleged illegal votes are vague, indefinite, uncertain, and insufficient as a ground of contest, and this contestee asks and demands that the contestant forthwith furnish to this con- testee the names and addresses of the alleged 398 voters who, as contestant alleges, illegally cast their votes for this contestee, and that the contestant forthwith furnish to this contestee a statement of the alleged grounds of ille- gality or the reasons for the illegality of said alleged votes. Eighteenth. For answer to the statements and allegations contained in the seventeenth paragraph of said contestant's notice of contest, this contestee de- nies that in each and every, or in any, county in said second congressional dis- trict of the State of Oklahoma there was practiced, either by this coatestee or by anyone in his behalf, as against said contestant, any fraud, intimidation, or illegal voting; and this contestee alleges and states that should it be shown practiced as alleged. And this contestee specifically denies that any fraud or intimidation shown, that they were not enough to change the result in favor of the contestee as against said contestant, and this contestee hereby objects to the consideration of the allegations contained in said seventeenth paragraph of said contestant's notice of contest, for the reasons that the said allegations are vague, indefinite, uncertain, incompetent, irrelevant, and immaterial, and insufficient as a ground of contest; and this contestee hereby asks and demands of the said contestant that he forthwith furnish to this contestee more definite information as to the precincts in which, and the names and addresses of the persons by whom, said alleged fraud, intimidation, and illegal voting were .practiced as alleged. And this contestee specifically denies that any fraud or illegality was practiced in any precinct or county in said district in the in- terest of this contestee. as alleged in said seventeenth paragraph of contestant's notice of contest, and this contestee further alleges and states that in each and every precinct, and in each and every county throughout said district, the ma- jority of the election officials were members of the same political party as the said contestant. Nineteenth. For answer to the statements and allegations contained in the eighteenth paragraph of said contestant's notice of contest, this contestee ad- mits that the State election board of the State of Oklahoma did, as heretofore ■admitted herein, make, execute, deliver, and issue to this contestee a certificate 4>f election as a Member of the Sixty-third Congress from -the second, congres- sional district of the State of Oklahoma; that he has no information as to the itruth or falsity of the statements and allegations contained in sti id eighteenth paragraph rgarding said alleged protest, and: he therefore denies said statements and allegations, and asks and demands that the contestant be .placed upon strict proof thereof. And this contestee denies that in so issuing «aid certificate of election s,aid State election boards acted in fraud of the rights of said contestant; and this contestee hereby objects to the consideration lOf the statements and allegations, contained in said^aragraph for,, the -reason 20 CAKNEY VS. MOEGAN. that the same are incompetent, irrelevant, and immaterial, and insufficient ta give to the contestant any rights, and this contestee asks and demands that if said alleged protest and objection to the issuance of said certificate was in writing, said contestant furnish this contestee with a copy thereof, and, if verbal, that said contestant inform and advise this contestee of the substance and grounds of said alleged protest and objection. Twentieth. For answer to the statements and allegations contained in the nineteenth paragraph of said contestant's notice of contest, this contestee alleges and states that he is not informed as to the truth or falsity of the statement in said paragraph to the effect " that in said election in said congres- sional district 1,740 negroes voted," and he therefore denies said allegation and asks and demands that said contestant be placed upon strict proof of said statement and allegation ; and this contestee denies that negroes who had never been legally enfranchised voted in said district at said election, and this con- testee denies that any precinct election official in said district allowed or per- mitted any negroes to vote except such as were qualified to vote under the terms, provisions, and requirements of the constitution of the State of Okla- homa, and amendments thereto, and under the laws of the State of Oklahoma, and were entitled to vote and exercise the right of suffrage in the selection of a Member of Congress from the second congressional district of the State of Oklahoma, as one of the privileges guaranteed to them by the Constitution and laws of the United States. And this contestee alleges and states that all negroes who were allowed to vote at said election in said district were quali- fied voters of the State of Oklahoma and of the United States of America, and this contestee denies that the negro race has never been enfranchised accord- ing to law, and this contestee denies that the fourteenth and fifteenth amend- ments to the Constitution of the United States of America have never been legally adopted, and denies that said amendments were not then, and were not at the general election of November 5, 1912. in full force and effect, and specifically demands of the said contestant that he be placed upon strict proof of said allegations. GROSS PETITION. And this contestee, Dick T. Morgan, for further reasons and grounds for the dismissal of the notice of contest of John J. Carney, contestant herein, and for further grounds and reasons for the retention of his office of Representative in the Sixty-third Congress of the United States of America from the second congressional district of the State of Oklahoma, and as further grounds and reasons why the said contestant, John J. Carney, is not entitled to maintain this contest against the contestee, or entitled to a seat in Congress, this con- testee alleges and states : First. That at the primary election held in the second congressional district of the State of Oklahoma, which said primary election was held in pursuance of and under the authority of the laws of the State of Oklahoma, the said John J. Carney and one James S. Ross and others were candidates on the Democratic Party ticket for the nomination as the Democratic Party candidate for Representative in Congress from the second congressional district of the State of Oklahoma, and that the names of the said John J. Carney and James S. Ross were duly and lawfully placed upon the Democratic ticket prepared, fur- nished, and used by the qualified Democratic electors who cast Democratic bal- lots at said primary election ; that from all of the counties, parts of counties, townships, and precincts included within said second congressional district the proper county election boards of the several counties within said congres- sional district made due. regular, truthful, and lawful returns to the State election board of the State of Oklahoma of the result of said primary election between the said Ross and the said Carney, except the county election board of Oklahoma County, which said county election board of Oklahoma County made due, legal, regular, and truthful returns to the State election board of the State of Oklahoma of the result of said primary election between the said Ross and the said Carney, except with reference to precinct 6 of ward 1 of Oklahoma City, in said Oklahoma County, and the said county election board of Oklahoma County, in making the returns and certificate of the result of the said pri- mary election between the said Ross and the said Carney and other candidates for said Democratic nomination in said precinct 6 of ward 1, falsely, erro- neously, and through mistake certified, stated, declared, and made return to the CAENEY VS. MOEGAN. 21 said State election board tliat the said Ross received only 26 votes, when In truth and in fact said Ross received in said precinct 6 of ward 1, 76 votes, as shown, stated, and declared by the official returns and counter's certificate of the duly and lawfully qualified acting precinct election board from said pre- cinct 6 in ward 1. And this contestee alleges and states that the official returns and the coun- ter's certificate in due. lawful, and regular form, which was duly and regularly delivered to the county election board of said Oklahoma County by the said precinct election officers of said precinct 6 of ward 1, in Oklahoma City. Okla- homa County, State of Oklahoma, show, state, and declare that in said pre- cinct at said primary election said Ross received 76 votes, and that by the books and records required by law to be kept by said county election board, showing and stating the number of votes received by each candidate for said nomination in the several voting precincts in said county, it is by said books and records shown, stated, and declai'ed that in said precinct 6 of ward 1 of Oklahoma City, in said county and State, that the said Ross received 76 votes in said election ; that the said election board of the State of Oklahoma, in tabu- lating, compiling, and reaching a result as to the one receiving the most votes in said primary election for said Democratic Party nomination for Congress from said district from and on the returns from the different county election boards in said district, received and accepted and acted upon the said false, erroneous, and mistaken return and certificate received from the county elec- tion board of the Oklahoma County, in and upon which it was shown, stated, and declared that in said precinct 6 of ward 1, in Oklahoma County, in said State, that the said Ross received only 26 votes. That the returns from all other counties, parts of counties, precincts, and townships included within the said congressional district, as made by the different and proper county election boards for the several counties therein, are correct and that the nimiber of votes received by the said Ross in said dis- trict for said nomination, including only 26 votes in said precinct 6, ward 1. as shown and declared thereby, is 3,868 votes ; that the total number of votes re- ceived by the said John J. Carney, this contestant, in said district for said nomination, as shown and declared thereby, is 3,906 votes, and that in said pri- mary election no other candidate for said nomination in said district as shown by said returns received more than 3,730 votes. ' That on or about the 28th day of August, 1912, the county election board of Oklahoma County, in said district, transmitted and delivered to the State elec- tion board of the State of Oklahoma an amendment to their original return and certificate, correcting and making true the aforesaid erroneous and untrue return theretofore made by the county election board of said county to the State election board of the State of Oklahoma, the result of said election for said Democratic Party nomination for Congress between the said Ross, the said Carney, and other candidates for said nomination a full and correct copy of said amended and corrected return and certificate is hereto attached, marked " Exhibit A" for identification, and is hereby made a part hereof as if fully set out herein verbatim. That in truth and in fact, as shown by the said regular, correct, official, legal, and lawful returns of all of the various counties, parts of counties, townships, and precincts included within and comprising said congressional district, that the said Ross, as a candidate for the Democratic Party nomination for Congressman for the second congressional district of the State of Oklahoma, received 3,918 votes, and that the said Carney, as said candidate for said nomination for said office, received only 3,906 votes, and no more, and that the said Ross received a plu- rality of all of the votes cast for candidates for said Democratic nomination for Congress in said district ; that by reason thereof the said John J. Carney, con- testant herein, was never in fact duly, legally, or lawfully nominated as the nominee of the Democratic Party for Congress from the second congressional district of the State of Oklahoma, and the said Carney was not, as is alleged and stated in paragraph 1 of contestant's notice of contest, at the regular elec- tion held in the second Congressional district of the State of Oklahoma, the duly and regularly chosen and qualified nominee of the Democratic Party for the office of Congressman from the second district of the State of Oklahoma, and not being the duly and regularly chosen and qualified nominee said contestant is not entitled to maintain this contest and is not entitled to he declared the duly elected Member of Congress from the second congressional district of the State of Oklahoma, and is not entitled to be awarded a seat as a Member of Con- gress from said congressional district. 22' GAIilSFEY vs. MORGAJsT; Exhibit A. Oklahoma City, Okla., August 28; 1912. Hon. Bek W. Kiley, Secretary State Election, Oklahoma City, Okla. Dear Sib: In reference to the official returns from Oklahoma County, which was certified to you on August 17 date by the Oklahoma County election board, we desire to state that there has been a clerical error discovered in the returns for Congressman of the second district on the Democratic ticket. In precinct 6 of ward 1, Oklahoma City, the precinct election board's returns show the following number of votes cast for Congressman in the second district : J. J. Carney, 54 ; J. S. Ross, 76 : George W. Cornell, 23 ; R. B. Forrest, 4 ; Dan Peery, 20; Ed Ballew, 2; Tom Ballew, 3. You will find that the tally sheet which we certified to you shows that J. S. Ross received only 26 votes in the above precinct, when, in fact, it should have shown him to have received 76 votes in the above precinct. We therefore respectfully ask that you make this correction on our tally sheet now on file in your office, and oblige. Very respectfully. The Oklahoma County Election Board, Dave Morrow, Chairman. E. A. RiNGOLD, Secretary. Second. That there was an election held for the office of Representative in the Sixty-third session of the Congress of the United States in the second con- gressional district of the State of Oklahoma on the 5th day of November, 1912 ; that this contestee, Dick T. Morgan, was the duly and regularly chosen and qualified nominee of the Republican Party for said office and his name appeared upon the official ballot in said election as the candidate of the said Republican Party for said office; that the contestant's name appeared upon the official ballot in said election as the candidate of the Democratic Party for said office; that Blaine County, State of Oklahoma, was on the day of said election and is now in said congressional district; that in. said county in all of the election precincts therein due. lawful, regular, and legal election was held on said 5th day of November, 1912, and duly, regularly qualified and chosen election officials pre- sided thereat in all respects in accordance with the laws of the State of Okla- homa in force on said day ; that all of the electors and voters who voted in said county were legal and qualified voters and all the persons in said county who voted at said election and who were negroes were qualified voters and electors under the constitution of the State of Oklahon/a and amendments thereto and under the laws of the State of Oklahoma and were entitled to vote and exercise the right of suffrage in the selection of a Member of Congress from the second congressional district of the State of Oklahoma as one of the privileges guar- anteed to them by the Constitution and laws of the United States; that after the closing of the polls in each, every, and all of the said election precincts the votes cast by the qualified electors of said county were duly and legally counted by said several precinct election officials in each, every, and all of said precincts in said county, and that due, legal, lawful, and regular retiu-ns were made out by said precinct election officers and returns were made by said several precinct election officers to the duly and regularly chosen, qualified, and acting county election board of the said Blaine County by, on, or about the 7th day of November, 1912, all of the said acts of the said several precinct election officers being in strict compliance with and according to the terms and provisions of the laws of the State of Oklahoma applicable thereto. That thereupon, and after the said legal, lawful, and regular returns by said precinct election boards and officials from each, every, and all of the precincts in said Blaine County had been made to and received by the said county elec- tion board, the said county election board proceeded to canvass said returns and thereupon and after canvassing said returns and tabulating the returns' from the said election precincts, the said county election board made entry upon- their records showing that the contestant had received a total of 1,198 votes ill said county, and that this contestee had received a total of 1.343 votes in said county, giving to tills contestee a plurality of 145 votes over the said con- testant; that thereafter and before said county election board had made out and i-eturned to the State election board of the State of Oklahoma their return- showing the votes so received in said county by said contestant and this con- testee, and notwithstanding that it then became the duty of said county election CARNEY VS. MORGAN. 2^^ board, under the laws of the State of Oklahoma to make their legale true, and correct returns to the State election board of the State of Oklahoma, showing the votes so actually received by said, contestant and this contestee. the said county election board disbanded, and failed, refused, and neglected to convene again until on or about the 13th day of November, 1912. when two of the said county election board, D. P. Hogan and T. W. Mosley, said members being the Demo- cratic members of said county election board, met and made out and signed and sent to the State election board an alleged return, purporting to show that ST id contestant had received 841 votes, and this contestee 772 votes; that in said alleged return so made by the said two members of said county election board to the said State election board, the vote of the said contestant and this contestee were, in the following precincts in said county illegally, unlawfully, and fraudu- lently entirely omitted, as follows : Cedar Valley Township, of precinct No. 6 ; Arapaho Township, or precinct No. 8 ; East Dixon Township, or precinct No. 9 ; East Lincoln Township, or precinct No. 10 ; Logan Township, or precinct No. 12 ; Flynn Township, or precinct No. 13 ; Watonga Township, or precinct No. 20 ; Canton Township, or precinct No. 23 ; West Dixon Township, or precinct No. 28 ; Carlton Township, or precinct No. 29 ; East Lincoln Township, or precinct No. 30. That in truth and in fact the said action of the said county election board in so omitting to make return of the votes so cast in the said precincts was illegal, unlawful, fraudulent, unwarranted, and was a neglect of duty on their part and a violation of the legal duty of said county election board, under the laws of the State of Oklahoma, and the votes cast in said precincts ought to and should be counted, and this contestee alleges and states that the ballots in each, every, and all of the said voting precincts were all legally delivered by the several precinct election boards to the county election board of Blaine County. State of Oklahoma, and have since said delivery been safely and securely kept, sealed, locked, securely protected and have not been disturbed or tampered with, and no opportunity has been given or afforded to anyone to disturb, tamper with, change, unseal, or alter said ballots, and said ballots are in all respects in the same condition as when diily and legally sealed and deposited in the several election boxes by the said several precinct election officials, and the contestee hereby notifies the said contestant that upon the hearing of this contest and the taking of evidence and proof in support of the allegations and statements of this paragraph, this contestee will open said boxes and recount said ballots in and of said above-mentioned precincts as between said contestant and this contestee ; and this contestee prays that he have an order requesting and requir- ing said county election board of Blaine County, State of Oklahoma, to securely keep said ballot boxes of said precincts until said boxes are opened and counted as between said contestant and this contestee ; that the ballots of the qualified voters of said precincts Avill show if recounted and the legal returns from the said several precincts duly returned by the several precinct election boards and precinct ofiicers to the county election board of Blaine County show that the said contestant and this contestee received therein the following votes, to wit ; Township. No. Carney. Morgan. Township. No. Carney. Morgan. Cedar Valley 6 8 9 10 12 13 20 30 27 39 45 , 52 13 48 39 47 31 39 80 22 89 Canton 23 28 29 30 55 25 13 10 104. Arapaho 39 East Dixon Carlton 51 30 Total .. riynn . . . 357 571 The said contestant in said 11 precincts receiving a total of 357 votes and this contestee receiving in said 11 precincts a total of 571 votes, said 11 pre- cincts thus giving to this contestee a plurality of 214 votes over said contestant; that in all of the other precincts in said county said contestant received 814 votes and this contestee 772 votes ; that in truth and in fact said contestant received in said county 1,198 votes and this contestee received 1,343 votes, and this contestee asks and prays that this be declared to be the true result of said election in said county as between said contestant and this contestee, and that said plurality of 214 votes be added to this contestee's legal majority. 24 CAENEY VS. MOKGAN". Third. That there was an election held for the office of Representative in Con- gress in the sixty-third session of the Congress of the United States of America from the second congressional district of the State of Oklahoma on the 5th day of November, 1912 ; that this contestee. Dick T. Morgan, was the duly and regu- larly chosen and qualified nominee of the Republican Party for said ofiice and his nafne appeared upon the official ballot in said election as the candidate of the Republican Party for said office, and that said contestant's name appeared upon the official ballot in said election as the candidate of the Democratic Party for said office ; that Oklahoma County was on the day of said election and now is in the said congressional district ; that in all of the election precincts therein due lawful, regular, and legal election was held on said 5th day of November, 1912; and duly regularly qualified and chosen election officials pre- sided thereat in all respects in conformity with the laws of the State of Okla- homa in force on said day ; that the precinct election officials in the voting pre- cincts as hereinafter set forth pretended to and did return to the county elec- tion board of Oklahoma County. State of Oklahoma, their official returns of the votes cast in said precincts as between said contestant and this contestee, and the duly chosen and qualified county election board of Oklahoma County, State of Oklahoma, did thereupon canvass and tabulate said alleged returns from the several precinct election boards as between said contestant and this con- testee and pretended to and did certify the same to the State election board of the State of Oklahoma, upon which said returns the said State election board acted in declaring the plurality of this contestee over all other candi- dates for said office in said second congressional district to be 663 votes, but this contestee alleges and states that error was made, either by the said several precinct election boards and officials in the aforesaid returns so made by them to the said county election board of Oklahoma County, or, by the said county election board of Oklahoma County in the aforesaid returns so made by it to the State election board of the State of Oklahoma, and either the said returns so made by the said several precinct election boards as afore- said to the county election board of Oklahoma County, or the said returns so made by the said county election board to the State election board of the State of Oklahoma, or both of said returns were and are false, untrue, and incorrect, in this, to wit, that the said returns do not truly and correctly set forth or state the true number of votes cast by the legally qualified voters of said several election precincts as between said contestant and this contestee; that the voting precincts where said mistakes occurred, the vote as so returned and the true and correct number of votes actually cast in the said several voting precincts as between said contestant and this contestee are as follows, to wit : Oklahoma Go'unty. Vote as returned. True and correct vote. Carney. Morgan. Carney. Morgan. Voting precinct, Oklahoma City: Ward 1— 157 164 229 199 61 136 212 238 164 208 208 255 181 148 238 230 199 133 102 134 206 141 62 129 194 186 176 156 135 153 151 100 128 122 143 107 150 149 224 190 58 125 208 232 156 202 200 245 168 141 228 202 172 126 102 Precinct 2 134 Precinct 3 206 141 Ward 2~ 62 129 194 186 176 156 Ward 3— 135 153 151 100 128 122 143 Precinct 10 107 CARNEY VS. MOEGAN. Oklahoma County — Continued. 26 Vote as returned. Carney. Morgan. True and correct vote. Carney. Morgan. Voting precinct, Oklahoma City— Continued. "W ard 4— Precinct 1 Precinct 2 Precinct 4 Precinct 5 Precinct 6 Precinct 7 Boone Township Britton TowTiship Cass To\\'nship Council Grove Township Choctaw Township Crutcho To-s\Tiship Dewey Township Deep Fork To^^'nship ; Deer Creek To'WTiship Edmond Township Harrah City Township Greeley To"\^Tiship Hartzel To\vnship Elk City To-\raship Duther City Township Lincoln Township Mustang Township Oklahoma A Township Oklahoma B Township Pottawa tomie TowTiship Springer Township Spring Creek Township 144 206 68 124 116 76 42 66 22 90 41 97 35 47 64 44 30 81 59 S3 33 30 89 80 39 31 96 41 106 141 80 77 77 57 47 61 18 .=i9 51 105 80 103 36 61 36 65 39 64 48 54 50 71 18 45 129 47 142 198 63 118 111 o2 42 61 17 85 36 92 30 42 59 39 25 76 54 48 28 25 84 75 33 27 136 141 80 77 77 57 67 51 18 59 51 105 80 103 36 51 36 65 39 f4 48 54 50 71 18 45 129 47 and this contestee alleges and states tliat the ballots in each, every, and all of the said voting precincts were all legally delivered by the several precinct elec- tion boards to the county election board of Oklahoma County, State of Okla- homa, and have since said delivery been safely and securely kept, sealed, locked, securely protected, and have not been disturbed or tampered with, and no oppor- tunity has been given or afforded to anyone to disturb, tamper with, change, unseal, or alter said ballots, and said ballots are in all respects in the same condition as when duly and legally sealed and deposited, in the several election boxes by the said several precinct election officials ; and the contestee hereby notifies the said contestant that upon the hearing of this contest and the taking of evidence and proof in support of the allegations and statements of this para- graph, this contestee will open said boxes and recount said ballots in and of said above-mentioned precincts as between said contestant and this contestee; and this contestee prays that he have an order requesting and requiring said county election board of Oklahoma County, State of Oklahoma, to securely keep said ballot boxes of said precincts until said boxes are opened and counted as be- tween said contestant and this contestee; and this contestee alleges and states that a recount of the ballots in said precincts will show, and this contestee alleges and states, that the said contestant received 450 votes less in Oklahoma County than the said alleged returns showed, and that this contestee received 40 votes more in said Oklahoma County than the said alleged returns showed, and this contestee is entitled thus to have 490 votes added to his plurality as determined by the said State election board of the State of Oklahoma, to wit, 663 votes; and this contestee asks that the said 490 votes be added to the said official plurality in said congressional district. Wherefore this contestee prays that the contestant have or obtain no rights by' reason of the statements and allegations contained in the said contestant's notice of contest ; that the contest of the said contestant be dismissed ; and that upon the hearing hereof that there be added to this contestee's legal plurality of 663 votes heretofore given him 490 votes from Oklahoma County, 214 votes from Blaine County ; that this contestee's legal plurality be declared to be 1,367 votes; and this contestee further prays that he be declared to be legally, lawfully, and rightfully entitled to the office of Representative in the Sixty- 26 CAKNEY VS. MORGAN. third Congress of tlie United States of America from the second congressional district of the State of Olilahoma, and for such other and further relief as he may in equity and good conscience be entitled, and he will ever thus pray. Dick T. Morgan, Contestee. By Morgan & Deupree, His Attorneys. ACKNOWLEDGMENT OF SERVICE. I, John J. Carney, contestant in the above-entitled cause, hereby acknowledge service of the above answer and cross petition and the receipt of a true and cor- rect copy thereof on this the 13th day of January, 1913. John J. Carney, Contestant. AFFIDAVIT OF SERVICE. State of Oklahoma, Oldahoma County, ss: Porter H. Morgan, of lawful age, being first duly sworn and on his oath, says that on the 13th day of January, 1913, he served upon John J. Carney, con- testant in the above-entitled cause, the above and foregoing answer and cross petition, and on said day delivered to the said John J. Carney a true and cor- rect copy of said answer and cross petition ; and further affiant saith not. Porter H. Morgan. Subscribed and sworn to before me this the 18th day of April, 1913. [seal.] B. O. Young, Notary Public in and for OklaJioma County, State of Oklahoma. My commission expires August 29, 1915. TESTIMONY FOR CONTESTANT. NOTICE TO TAKE DEPOSITIONS. The said Dick T. Morgan and Porter H. Morgan, liis attorney of record, will take notice tliat on Friday, tlie 31st dtiy of Jannary, 1913, tlie said John J. Carney, contestant above named, will take the deiX)sitions of sundry witnesses, to be used in evidence in the trial of the above cause, at the law office of Giddings & Giddings, 1351 West Main Street, Oklahoma City, Okla., before Mary S. Hill, a notary public in and for Oklahoma County, State of Oklahoma. That the names of the witnesses whose depositions so will be taken are : J. W. Sorrels. Oklahoma City, Okla. ; F. L. Clark, Oklahoma City, Okla. ; J. E. Lucas, Oklahoma City, Okla. ; Frank Redding, Crutcho Township, Oklahoma County, Okla. ; E. A. Wagner, Crutcho Township, Oklahoma County, Okla. ; J. N. Spiers, Choctaw Township, Oklahoma County, Okla.; Frank L. Kenyon, Choctaw Town- ship, Oklahoma County, Okla. ; W. I. Davis, Dewey Township. Oklahoma County, Okla. ; Thomas J. Clark, Dewey Township, Oklahoma County, Okla. ; C. E. Burnsworth, Deep Fork Township, Oklahoma County, Okla. ; F. H. Morris, Deep Fork Township, Oklahoma County, 0kla. ; E. Needham, Greeley Township, Oklahoma County, Okla. ; J. E. Parks, Hartzell Township, Oklahoma County, Okla. ; C. B. Jack, clerk, Hartzell Township, Oklahoma County, Okla. ; Louis Vorel, Luther Township, Oklahoma County, Okla. ; B. B. Moore, Luther Town- ship, Oklahoma County, Okla. ; T. H. Ray, Luther City, Oklahoma County, Okla.; H. E. Norman, Luther City, Oklahoma County, Okla.; M. S. Baker, Oklahoma A Township, Oklahoma County, Okla. ; H. F. Ballard, Oklahoma A Township, Oklahoma County, Okla. ; H. S. Lopp, Springer Township, Oklahoma County, Okla. ; W. W. Barker, clerk. Springer Township, Oklahoma County, Okla.; W. H. Seller, Spring Creek Township, Oklahoma County, Okla.; R. L. West, Spring Creek Township, Oklahoma County, Okla., all of said witnesses having heen at the last general election, on November 5, 1912. precinct and township election officials within and for Oklahoma County, Okla.; E. A. Ringold, secretary of said countj^ election board ; Ben P. Riley, secretary of State election board ; and the testimony of such other witnesses as tlie respective parties hereto may agree to take at said time and place, the said testimony to be taken between the hours of 8 o'clock a. m. and 6 o'clock p. m. of said day, and that the taking of the same will be ad.1ourned and conthiued from day to day at the same time and place and between the same hours until they are completed. John J. Carney, Contestant. By Giddings & Giddings, His Attorneys. Service of the above notice is hereby acknowledged to have been made on us this 25th day of January, A. D. 1913. Morgan & Deupree, Attorneys for Contestee. depositions. Depositions of witnesses taken to be used in an action pending in the House of Representatives of the Congress of the United States, before Committee on Elections, wherein John J. Carney is contestant aiid Dick T. Morgan is con- testee, in pursuance of the notice hereto attached, and at the place stated. The said John J. Carney appeared on the said 31st day of January, 1913, by liis attorneys, Giddings & Giddings, and the said Dick T. Morgan appeared by 27 28 CARNEY VS. MOEGAN. his attorney, Porter H. Morgan, and thereupon the taking of said depositions was continued and adjourned to tlie 1st day of February, 1913. On the said 1st day of February, 1913, the said parties to this action appeared by their said attorneys, and the talking of said depositions was continued and adjourned until the 6th day of February, 1913. On the said 6th day of February, 1913, the said contestant and contestee appeared by their respective attorneys, and the contestant produced the following witnesses in order, to wit, the said testimony being taken in shorthand by J. M. Harkin at the said office of Giddings & Giddings, 135-1 West Main Street, Oklahoma City, Okla. : State of Oklahoma, Oklahoma County. Befoi'e Mary S. Hill, a notary public in and for said county and State. February 6, 1913, 9 o'clock a. m. Six witnesses sworn by the said notary. W. I. DAVIS, called to the stand, testified as follows, to wit: Direct examination by Mr. E. J. Giddings : Q. You may state your name. — A. W. I. Davis. Mr. PoRTEK MoEGAN. Now, Wait a minute, I want to make some formal ob- jections. Comes now Dick T. Morgan, contestee herein, by his attorneys, Morgan & Deupree, and objects to the taking of any testimony by John J. Carney, contestant herein, at this or any other time, or at this or any other place, for the following reasons, to wit : First. Because the said alleged notice of contest of said contestant and each and every paragraph or ground of contest therein set forth under which the said contestant John J. Carney is now beginning to take testimony, is and are insufficient, vague, indefinite, and uncertain, and does not state or allege facts sufficient to constitute a ground or grounds for contest. Second. Because the said alleged notice of contest was not served within the time allowed by law for so doing, and because the said notice of contest was not and has not been up to this present time properly filed with the proper and duly authorized offices as required by law. Third. Because Mary S. Hill, for whom said contestant is about to take testi- mony, is not at this time a duly qualified officer before whom testimony in contestant election before the House of Representatives of the United States of America may be taken under the laws of the United States relative thereto, and is not at this time a qualified and acting notary, she not having received a lawful commission to act as a notary and not having filed her bond with such with the proper officer. Said bond, if any such has been filed, having never been approved by the proper and lawful offices. Fourth. Because the notice to take this testimony at this time was not served upon the contestee, Dick T. Morgan, within the time allowed by law, and be- cause the said notice does not set out or give the place of residence or post-office address of this or any other witness named therein whose testimony said con- testant now seeks to take. Fifth. Because the said alleged notice of contest heretofore attempted to be served upon this contestee does not give or set out or specify, and no paragraph or ground thereof give or sets out or specifies the grounds upon which sai^ CAENEY VS. MORGAN. Q. You say you lived out there 15 years?— A Yes sir ^.?' n?.?'"''^ fi ^^''^^ negroes, practically, don't you?-A. Well most of them ; ^ -l; if ^.^}^.^ *^®^^ ^^ ^^^^ floaters that comes and goes, but I am acquainted with all that is in there any length of time. , ul ± dm dLquamtea Q. Do you know Sam Fain? — A. Yes sir JreYnZ X oUrSml' ' '"'"' "°°" """' ""' "' '^''' *'™ ""^ "«^ "^W Q. Did Fred Trent vote?— A. Yes, sir. Q. Did Bob Harris vote?— A. How is that? Q. Bob Harris.— A. I don't know him. Q. Did a man by the name of Fox vote?— A. I don't know him Q. Did Henry Burton? — ^A. Yes, sir. Q. Did Henry Grissom? — A. Yes, sir. Q. Now, who did this testing out there, Mr. Burnsworth?— A. I did it myself, Miost or It. Q. So you tested five?— A. I think it was five. Q. And turned those down? — ^A. Yes, sir. Q. And the balance of the negroes who voted, vou knew them and had tested them at the primary election?— A. Yes, sir. Q. And let them vote. That is all. Mr. GiDDiNGs. That is all. Mr. Morgan. Mr. Burnsworth, you are a Democrat, are you not' A. Yes, sir. Mr. MoEGAN. That is all. Mr. GiDDiNGs. That is all. C. E. BUENSWOETH. Subscribed and sworn to before me this 5th day of April, 1913. f^^^^-^ Mary S. Hill, Notary Public. My commission expires November 21, 1915. And thereupon, by consent of parties, the hearing of this matter was con- tinued until to-morrow afternoon at 1.30. February 13, 1913, 1.30 p. m., hearing convened and, by consent of parties adjourned until to-morrow morning at 9 o'clock. ' February 14. 1913, 9 a. m., hearing convened. E. A. RINGOLD recalled to the stand. Direct examination by Mr. Dortch : Q. Mr. Ringold, as secretary of the county election board, have you any affi- davits of challenged voters? — A. I have. Q. They were given to you as secretary, were they? — A. They were. Q. About how many have you, Mr. Ringold? Mr. Morgan. We object to that as incompetent, irrelevant, and immaterial, and not the best evidence. A. Fourteen. Q. Those 14 are the original affidavits, are they? — ^A. They are. Mr. Dortch. Comes now the contestant and offers in evidence the original 14 affidavits spoken of by Mr. Ringold and asks that the same be marked for iden- lification. (Marked Exhibits Kl to K14, inclusive.) E. A. Ringold. Subscribed and sworn to before me this 30th day of April, 1913. CsEAL.] Mary S. Hill, Notary Public. My commission expires November 21, 1915. Mr. Morgan. Comes now the contestee and objects to the introduction in evi- dence of Kl to K14, inclusive, for the reason that the same are incompetent, irrelevant, and immaterial, and are not the best evidence, and for the reason that Exhibits K4 to 14, inclusive, are not challenged certificates of challenged voters, and for the reasons that there are no statements or allegations contained in the contestant's notice of contest respecting any affidavit or any certificates of challenged voters, and for the further reason that it has not been shown that the said alleged records have been safely kept, for the reason that it has not been shown in whose custody or care the said exhibits have been since the time that they were placed in the hands of the said witness, and there being CAENEY VS. MOKGAN. 83 no showing that the said exhibits have been safely kept free from opportunity for change, mutilation, or alteration; and the contestee objects to the introduc- tion in evidence of Exhibit 1 for the reason that the same is incompetent, irrelevant, and immaterial, and does not tend to prove or disprove any of the statements or allegations contained in the contestant's notice of contest, for the reason that the same is not vs^hat it purports to be and is not in the proper or legal or lawful form ; and the contestee objects to the introduction in evidence of Exhibit 2 for the reason that the same is incompetent, irrelevant, and imma- terial, and for the reason that the same is not signed nor the affiant sworn to before any proper officer, and for the reason that the same does not prove or tend to prove any of the statements or allegations contained in the contestant's notice of contest and is not the best evidence. And the contestee objects to the introduction of Exhibit KS for the reason that the same is incompetent, irrele- vant, and immaterial, and is not the best evidence, and not certified or sworn to before any proper officer. And the contestee objects to the introduction of K4 for the reason that the same is not competent, relevant, or material, and does not prove or tend to prove any statements or allegations contained in the con- testant's notice of contest. And for the further reason that the said exhibit does not prove or tend to prove a disqualification of the said A. Thomas to vote. For the reason that the said exhibit and affidavit K4 contains the statement that said A. Thomas's grandfather on his side of the house and on his mother's side of the house were white men and legal voters, the said above statement showing that A. Thomas was, under the laws of the State of Oklahoma, a legal, qualified voter and entitled to vote at the general election held in November, 1912. And the contestee objects to the introduction in evidence of Exhibit K5 for the reason that the same is incompetent, irrelevant, and immaterial, and is an ex parte affidavit and is not the best evidence and as a repetition the said W. I. Davis having heretofore been called to give evidence before this notary in this hearing, and for the reason that the said affidavit is and does not constitute any proper return required or allowed by the laws of the State of Oklahoma; and the contestee objects to the introduction of Exhibit 6 for the reason that the same is incompetent, irrelevant, and immaterial, and does not tend to prove any statements or allegations contained in the contestant's notice of contest, the same being an ex parte affidavit, and for the reason that the said alleged amended return is not such a retiu'n as is required by or allowed by the laws of the State of Oklahoma, and for the further reason that the said persons who subscribed to the said affidavit or alleged amended return have already been before this notary public and testified on the hearing of this case, and for the reason that the same is repetition and not the best evidence, and for the reason that the introduction of the said Exhibit K6 gives this contestee no opportunity to cross-examine the said A. L. Moore, who purports to sign the same. And the contestee objects to the introduction of Exhibit K7 for the reason that the same is incompetent, irrelevant, and immaterial and does not prove or tend to prove any of the statements or allegations contained in the contest- ant's notice of contest for the reason that the same is an ex parte affidavit and does not give this contestant any privilege or opportunity to cross-examine the said Louis Yorel. who purports to sign the said alleged amended return, and for the reason that the same is a repetition, and said Louis Vorel having hereto- fore testified in this matter, and for the reason that the same is not such a return as is contemplated by or required by the laws of the State of Oklahoma. And the contestee objects to the introduction in evidence of Exhibit K8 for the reason that the same is incompetent, irrelevant, and immaterial and does not prove or tend to prove any of the stntements or allegations contained in the contestant's notice of contest and for the reason that the same is an ex parte affi- davit and does not give this contestee any privilege or opportunity to cross- examine the said C. E. Burnsworth, who purports to sign the same regarding the allegations therein contained; and for the further reason that the said alleged amended return is not such a return as is contemplated or required by the laws of the State of Oklahoma. And this contestee further objects to the introduction of Exhibit K8 for the reason that the same is a repetition, said O. E, Burnsworth having already testified in this hearing. The contestee objects to the introduction of Exhibit K9 for the reason that the same is incompetent, irrelevant, and immaterial and as not proving or tending to prove any statements or allegations contained in the contestant's notice of contest and for the reason that the same is an ex parte affidavit, and for the reason that the introduction of the same in this manner gives this con- 84 CAKNEY VS. MORGAN. testee no opportunity to cross-examine tlie said person signing the same, to wit. F. H. Morris, respecting tlie allegations tlierein contained, and for the fur- ther reason that the same is a repetition, the said F. H. Morris having already testified in this hearing. And the contestee objects to the introduction in evidence of Exhibit KIO for the reason that the same is incomijetent, irrelevant, and immaterial and for the reason that the same does not prove or tend to prove any statements or allegations contained in the contestant's notice of contest, and for the reason that the same is an ex parte affidavit and does not give the contestee herein an opportuity or privilege of cross-examining the said persons so signing the same as to the statements and allegations therein contained, and for the reason that the same, while purporting to be an amended return, is not such a return or amended return as is contemplated by or required by or allowed by the laws of the State of Oklahoma. And the contestee objects to the introduction in evidence of Exhibit Kll for the reason that the same is incompetent, irrelevant, and immaterial and is not proving or tending to prove any of the statements or allegations contained in the contestant's notice of contest for the reason that the same is an ex parte affidavit and not giving this contestee the privilege or opportunity of cross- examining the said G. W. Swails, who purports to sign the same, regarding the statements or allegations therein contained, and for the reason that the game is not a return or an amended return or any sort of return required by or contemplated by or allowed by the laws of the State of Oklahoma, And the contestee objects to the introduction in evidence of Exhibit K ]2 for the reason that the same is incompetent, irrelevant, and immaterial, and for the reason that the same does not prove or tend to prove any of the statements or allegations contained in the contestant's notice of contest and for the reason that the same is an ex parte affidavit and does not give this contestee the privi- lege or opportunity of cross-examining the said F. H. Morris, who purports to sign the same regarding the statements and allegations therein contained, and for the reason that the same is not a return or such a return or statement as is required by. allowed by, or contemplated by the laws of the State of Oklahoma. And this contestee objects to the introduction in evidence of Exhibit K 13 for the reason that the same is incompetent, irrelevant, and immaterial, and as not proving or tending to prove any statements or allegations contained in the con- testant's notice of contest, and for the reason that the same is an ex parte affi- davit which does not give or allow this contestee the privilege or opportunity of cross-examining the witness as to the statements or allegations therein con- tained, and for the further reason that the same is not such a return or amended return or statement as is required by or contemplated by or pre- scribed by the laws of the State of Oklahoma. And the contestee objects to the introduction in evidence of Exhibit K 14 for the reason that the same is incompetent, irrelevant, and immaterial, and as not proven or tending to prove any of the statements or allegations contained in the contestant's notice of contest, and for the reason that the same is an ex parte affidavit which does not allow this contestee or give this contestee the privilege or opportunity of cross-examining the party purporting to sign the same, to wit, Louis Vorel, as to the statements or allegations contained in said affidavit, and for the further reason that the said affidavit is not such a return or amended return or statement as is contemplated by or required by or allowed by the laws of the State of Oklahoma. And this contestee further objects to the introduction in evidence of Exhibits K 1 to 14, inclusive, for the reason that the same have not been properly identi- fied, and for the further reason that the signatures thereto have not been properlv identified or sworn to or shown by any evidence, and for the further reason "that it has not been shown that said exhibits were delivered by those signing the same to the witness or that the same are any part of the records of the countv election board of Oklahoma County, State of Oklahoma, or that thev should 'constitute any part of the election returns of Oklahoma County, State of Oklahoma. And this contestee objects to the introduction in evidence of Exhibits K 1 to ]4, inclusive, for the reason that the same are all ex parte affidavits and from their nature are such that this contestee is not allowed the right, privilege, or opportunity of cross-examining the persons purporting to sign the same as to the truth or falsity or the circumstances surrounding the statements and alle- gations contained in said exhibits. CAENEY VS. MOEGAN". * 85 And this contestee furtlier objects to the inti'oduction in evidence of Exhibits K 1 to 14, inclusive, for the reason that the same or a greater part thereof are legal conclusions of the persons signing the same and are made up of opinions of the parties purporting to sign the same. And this contestee at this time moves to strike from the recoMs said Exhibit K 1 to 14, inclusive, for each, every, and all of the reasons heretofore stated. Mr. GiDDiNGS. That is all. Cross-examination by Mr. Morgan : Q. Mr. Ringold. I vv^ill ask you if Exhibit K 1 was handed to you by Anderson Harrelson? — A. To the best of my knowledge it was handed to me by C. E. Burnswoi'th. Q. Who handed you Exhibit K 4? — A. I. N. Spears; I would not be sure about that initial. Ain't he on here somewheres in affidavit? Q. No.— A. Well, it is J. N. or I. N. Spears ; I forget. Q. Now, who gave you Exhibit K 5? — A. E. L. Sheldon. Q. Who is he?— A. Of Edmond. Q. Who is he? — A. He was a candidate for member of the legislature on the Democratic ticket from Oklahoma County. Q. When did he hand you that?— A. About the 16th day or ISth day of November, 1912. Q. It was not given you, then, by Mr. Davis, who signed the same? — A. Not by him personally. , Q. You would not be sure that was his signature on there at all, would you? — A. I didn't see him sign it. Q. You would not be certain that that is his signature there, would you? — A. I am reasonably certain ; it looks A^ery much like it. Q. You would not swear to it positively? — ^A. I had his signatures on other papers. Q. You would not swear to it positively, though would you? — A. All I can say I could not swear that he signed it from the facts that I didn't see him sign it. Q. These other affidavits here were also — Exhibits K 5 to K 14, inclusive, were all given you by this man Sheldon, were they not? — A. I don't remember if all of them were or not. There were some several of those handed in by inspectors from the various precincts. Some handed me by Mr. Sheldon and some were handed me — two. I believe, were handed me by J. L. Robinson, of Edmond. Q. Where have these exhibits been since they were handed to you? — A. They have been in my possession and my office most of the time. Q. When did they leave your possession? — A. About 10 days ago; between the 1st and 5th of this month. Q. Who did you give them to? — A. I don't remember who called at my oflfice for the papers with a note from Judge Sam Hooker wanting to borrow these papers in preparing his answer to a contest suit now pending in the superior court of this county between Bob Parman and W. W. Storms, who were candi- dates on the Democratic and Republican ticket for ccunty clerk of this county. Q. When did these come into your possession? — A. Along the latter — some of them Q. I mean again ; after you parted with possession, when did they come into your possession again? — A. This morning. Q. Who gave them to you? — ^A. The clerk in Judge Tom Chamber's office. Q. The young boy there? — A. Yes; I don't know his name; a young man; I don't know his name ; I didn't ask him. Q. You haven't seen them from the time you gave them to some one coming from Sam Hooker's office until this morning you received them from this clerk in Tom Chamber's office? — A. I had not. Q. You don't know of your own personal knowledge concerning the state- ments and allegations contained in these exhibits, do you ; of your own personal knowledge? — A. I do not. Q. Then you could not swear of your own — according to your own personal knowledge concerning the truth or falsity of the statements contained in these affidavits here? — A. I could not. Q. You don't know Anderson Harrelson, do you? — A. I do not. Q. Do you know Sam Fahan? — A. I do not. Q. Do you know Fred Trent? — A. I do not. Q. Do you know A. Thomas? — A. I do not. 86 CAENEY VS. MOKGAX. Q. Do you know P. M. Vorel? — A. No, sir; not personally; I know him Q. Do you know John Anderson? — A. I do not. Q. You would not know his signature if you saw it? — A. No, sir. Q. Do you know John Roaten? — A. I do. Q. What is the politics, if you know, of C. E. Bruusworth, inspector in Deep Fork Township? — A. Supposed to be a Democrat. Q. W. I. Davis — what political party does he belong to? — A. Supposed to be a Democrat. Q. A. L. Moore — what political party does he belong to? — A. Who? Q. A. L. Moore. — ^A. I don't know. Q. Do you know him? — A. Not personally. Q. Do you know the political faith of Louis Vorel?— A. He is supposed to be a Democrat. Q. F. H. Morris— do you know to what political party he belongs?— A. I do not. Q. He is the clerk in Deep Fork Township?— A. I don't know whether he is clerk or .iudge. Q. Do you know G. W. Swails? — A. I do. Q. To what political party does he belong?— A. He is supposed to be a Democrat. Mr. Morgan. That is all. Redirect examination by Mr. Dortch : ' Q. Mr. Rinogld. I will ask you to examine Exhibits K 1 to K 14 and see whether or not they are in the condition at present as they were when they were first given to you? Mr. Morgan. Contestee ob.iects to that for the reason that the same is in- competent, irrelevant, immaterial, and leading and suggestive, and calling for a conclusion of the witness and an opinion of the witness, and for the fiu'ther reason that the same is not the proper manner in which the identity of exhibits may be shown. A. They are. Mr. DoRTCH. That is all. Recross-examination by Mr. Morgan : Q. How can you be sure they are exactly in the same condition as they were when they first came into your hands?— A. For the reason that I looked over these affidavits several times, in fact a number of times while they were in my possession and I am familiar with the contents of each affidavit. Q. You say you looked over them a number of times, how many — in Exhibit K 13 I will ask you how many negroes the affiant there claims voted in said voting place? Mr. DoRTCH. We object to that as incompetent, irrelevant, immaterial, and not proper cross-examination. Q. So that if the affidavit should show there were only three negroes voted there you would not be sure but that when it first came in to you it said 30, could you? Mr. DoRTCH. We object to that as argumentative and not cross-exammation. A. I would certify that the affidavit was in the same condition as it was at the time when I received it. Mr. Morgan. Read the witness the question. (Question read.) A. Yes, sir ; I am sure that it didn't say 30. Q. And if Exhibit 9 shows that the affiant therein claims that there were 40 negroes voted in the township set forth therein, you could not be sure but what at the time it came to you it only showed 4 negroes voted therein, could you? . ^. Mr. Dortch. Objected to as argumentative and not proper cross-examination. A. Yes. sir; I am sure that none of the affidavits contained as many as 30 or 40 names in the affidavit at the time they were filed with me. Q. Where did you keep these affidavits while you had them in your posses- sion? — A. They were locked in my desk. Q. You sometimes left your desk open when you came out of the office? — A. I sometimes left my desk open, but always locked the front door of the office when I left it. Q. Now, could you be sure, Mr. Ringold, that there has been no time since these came into your possession during the time you had them in your office CARNEY VS. MORGAN. * 87 that your desk has not been opened and unlocked and your door also open? — A, There is nobody has a key to my front door except myself. Q. Do you swear positively that all times during the time that these were in your possession and in your desk, as you say, that the desk has either been locked or your door locked? — A. Yes, sir. Q. To your office. — A. Yes. sir. Q. As a matter of fact, Mr. Ringold, about six weeks ago didn't I not come to your office and find your door leading out into a hallway from your oflice open and your desk also open, and did you not upon your return find a note from me on your desk saying that I was leaving certain documents there with you? Mr. DoRTCH. Objected to as not proper cross-examination. Q. And did I not leave some documents there at that time, to wit, the list of the inspectors and officers in Oklahoma County at the last election? — A. I found such a paper on my desk, but supposed it was put there by the gentleman who worked in my office with myself. Q. He has a key to the desk, has he? — -A. No ; not to my desk. Q. He has a key to your door? — ^A. Yes; he has a key to the door of the office. Q. Who is the party?— A. R. A. Wooldridge. Mr. Morgan. Alright. Mr. DoRTCH. Is Mr. Wooldridge a responsible and reputable party, Mr. Ringold ? Mr. Morgan. Wait a minute: we object to that as incompetent, irrelevant, immaterial, leading, and suggestive. A. I trust him. Mr. Morgan. Leading and suggestive and calling for a conclusion and opinion of the witness. Mr. DoRTCH. That is all. Exhibit A. TALK IT OVER WITH YOUR WIFE, MR. ELECTION OFFICIAL, AND REMEMBER THAT YOU WILL GO TO THE PENITENTIARY. If you violate the Federal election laws, and not Gov. Cruce nor his brother. Attorney A. C. Cruce. You will remember that the latter defended Beall and Quinn, who last year were convicted in the United States court at Enid and sentenced to the penitentiary for violating the Federal election law. and the State paid the attorneys in these cases about $14,000 for defending these two men. This averages about $7,000 per case. It is not likely that the people of this State, already overburdened with taxes, will be willing to continue to pay out $7,000 every time an election official violates the Federal statutes. The people are not sufficiently able to enrich the governor's brother, Attorney A. C. Cruce. Besides, what's the use? Where conviction is sure, there is nothing gained by paying out big sums of money for attorney fees. That is to say, there is nothing gained by anyone but the attorney. Exhibit B. Department of Justice, Office of the United States Attorney, Western District of Oklahoma, Chithrie, Octoher 31, 1912, Mr. Fred A. Wagoner. Deputy County Attorney, Chandler, Okla. Dear Sir: I have your letter asking whether at the coming general electiom the precinct election officers can enforce the law commonly termed the grand- father law and escape punishment therefor in the Federal courts on a showing of good faith in enforcing said law. I presume your question has arisen on accouiit of the apparent conflict between the decision of the Supreme Court of the State of Oklahoma and the United States District Courts for the Eastern and Western Districts of Oklahoma on the constitutionality of the law, the State supreme court haAing held the law constitutional, while the two United States courts in the State have held it unconstitutional and void. It must be borne in mind that this all involves purely State matters as well as Federal matters, and in considering the same these two phases of the law 88 CARNEY VS. MORGAN. must be kept in mind. As to the pnrelj- State questions involved in tlie law, I do not express any opinion, the same not being within the jurisdiction of this office, and this opinion is directed solely to the Federal question involved; tiiat is, the application of the grandfather law to negroes who, on account of race, color, and previous condition of servitude, are not permitted to vote with- out submitting to certain tests of reading and writing. Nor shall I argue the question of the constitutionality of the law, for the reason that after very extensive argument by some of the best legal talent of the State it has already l>een in positive terms declared unconstitutional by the two United States dis- trict courts in this State, which decisions are now the law of this State as fai- as the Federal questions therein involved are concerned, having never been reversed or modified. Knowing this, that the Federal courts, having jurisdiction over the entire State, have declared the law to be unconstitutional and of no force and effect, the question arises whether the precinct election officers can enforce it against negroes on account of their race and color, and then, when prosecuted In a Federal court for doing so, defend the prosecution on a plea of good faith in enforcing the law. The question of good faith must be determined with ref- erence to the decision of the courts on the subject and having jurisdiction thereof, so there can be no good faith in acting in direct conflict with the known decisions of the courts, although in the absence of any such decisions such defense might be made. In the case against Beall and Quinn, who were convicted in the Federal court at Enid, in 1911, for violating section 19 of the Federal Criminal Code in enforcing the grandfather law at the general elec- tion in November, 1910, the defense of good faith was attempted, although without success, as the verdict of the jury disclosed. However, in that case at the time the acts were committed which caused a prosecution ; that is, in November, 1910, no Federal court had passed upon the law. Furthermore, all precinct election officers are quasijudicial capacity, and being officers of inferior and restricted jurisdiction, are all bound by the decisions of the Federal courts declaring the law unconstitutional when applying the same to negroes desiring to vote for Members of Congress and electors for President, and the defense of good faith will not protect them from prosecution for en- forcing the law in direct conflict with the Federal decisions. Respectfully, Homer N. Boakdman, United States Attorney. C— J. M. H., February 6, 1913. ambley .... do do Do. do do Do. Dick T. B.v Morgan Morgan. Contestce, & Deupree, His Attorneys. Service of the above notice is hereby acknowlerlgecl to have been marie on me and a true and correct copy thereof acknowledged to have been delivered to and received by me on this the 21st day of February, 1913. John J. Carney, Contestant. DEPOSITIONS. Depositions of witnesses taken to be used in an action pending before the Honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. in pursuance of the notice hereto attached, and at the time and place therein stated, and the contestant appeared by his attorney, A. L. Emery, and the contestee appeared by Morgan eS: Deupree, his attorneys, and thereupon the said contestee produced the following witnesses in order, to wit : Testimony of E. R. TAYLOR. E. R. Taylor, who being first duly sworn to testify to the truth, the whole truth, and nothing but the truth, deposeth and says, in answer to questions propounded to him, as follows : Examination by Mr. Morgan : Q. State your name and residence? — ^A. E. R. Taylor, Watonga, Okla. Q. What official position, if any, do you now hold? — ^A. Clerk of the district court of Blaine County, State of Oklahoma. Q. How long have you held this position? — A. Since the 6th day of January, 191S. 108 CAENEY VS. MOEGAN". Q. Have you iu yonr possession and custody tlie returns and documents re- lating to the result of the election lield on November 5, 1912, in this county? — A. Yes, sir. Q. How did these records come into your possession? — A. They were turned over to me by my predecessor. Q. What was the occasion, if you know, of their being placed in the posses- sion of the clerk of the district court of this county? — A. By virtue of contests that were pending in the district court. Q. While they have been in your possession have they been safely kept from chance of change or alteration and free from opportunity to change or alter them? — A. Yes, sir. Q. I will now ask you to produce the oflBcial returns of the election held in Arapaho township for State offices on November 5, 1912. (Witness produces document.) Q. What is that you now hold in your hand? — ^A. Certificate of vote, precinct No. 8, Arapaho township, Blaine County, State of Oklahoma. Q. I will ask the notary to mark the sheet, identified by the witness as " Con- testee's Exhibit No. 1." Q. I will ask you to produce the returns of precinct No. 20, Watonga town- ship, Blaine County, State of Oklahoma. (Witness produces instrument.) Q. What is that instrument ?— A. Certificate of vote of precinct No. 20, Watonga township, Blaine County, State of Oklahoma. Q. I will ask the notary to mark the instrument " Contestee's Exhibit No. 2." Q. I will ask you to produce the returns of Cedar Valley Township No. 6, Blaine County, State of Oklahoma. (Witness produced instrument.) Q. What is this instrument? — ^A. Certificate of vote. Cedar Galley Township, precinct No. 6, Blaine County, State of Oklahoma. Q. I will ask the notary to mark the instrument " Contestee's Exhibit No. 3." Q. Will you now produce the return of the general election held November 5, 1912, in precinct No. 9, East Dixon Township, Blaine County, State of Oklahoma? (Witness produces instrument.) Q. What is the instrument you now present?— A. Certificate of vote, precinct No. 9, Dixon Township, Blaine County, State of Oklahoma. Q. I will ask the notary to mark the " Contestee's Exhibit No. 4 " for identi- fication. Q. Will you now produce the returns of the general election held on Novem- ber 5, 1912, in precinct 28, West Dixon Township? (Witness produces instrument.) Q. Please state what the instrument you produce is. — A. Certificate of vote, precinct 28, West Dixon Township, Blaine County, State of Oklahoma. Q. I will ask the notary to mark the instrument produced as "Contestee's Exhibit 5 " for identification. Q. Will you now produce the returns of the general election held in precinct No. 23, Canton Township, Blaine County, Okla. (Witness produces instrument.) Q. What is the instrument you now produce? — A. Certificate of vote of precinct 23, Canton Township, Blaine County, State of Oklahoma. Q. We now ask that the notary mark the instrument " Contestee's Exhibit 6 " for identification. Q. I will ask you to produce the returns of precinct No. 30, East Lincoln Township, Blaine County, State of Oklahoma, November 5, 1912. (Witness produces instrument.) Q. What is the instrument you now produce? — A. Certificate of vote of pre- cinct 30, Lincoln Township, Blaine County, State of Oklahoma. Q. We now ask the notary to mark the instrument produced as " Contestee's Exhibit No. 7 " for identification. Q. I will now ask you to produce the return of the general election held in precinct No. 29, Carlton Township, Blaine County, State of Oklahoma. (Witness produces instrument.) Q. What is the instrument you now produce? — A. Certificate of vote of pre- cinct 29, Carlton Township, Blaine County, State of Oklahoma. Q. We now ask that the instrument be marked " Contestee's Exhibit No. 8 " for identification. CARNEY VS. MOEGAN. 109 Q. We now ask you to produce the returns of the general election held November 5, 1912, in precinct No. 10, West Lincoln Township, Blaine County, Okla. (Witness produces instrument.) Q. W^hat is the instrument you now produce? — A. Certificate of vote of pre- cinct No. 10, of West Lincoln Township, Blaine County, State of Oklahoma. Q. We now ask that the instrument just produced be marked " Contestee's Exhibit No. 9 " for identification. Q. I will now ask you to produce the returns of the general election held November 5, 1912, in precinct No. 13, Flynn Township, Blaine County, State of Oklahoma. (Witness produces instrument.) Q. I will ask you what this instrument is. — ^A. Certificate of vote of precinct No. 13, Flynn Township, Blaine County, State of Oklahoma. Q. I will ask the notary to mark the instrument just produced " Exhibit 10," for identification. Q. I will now ask you to produce the returns of the general election held November 5, 1912, in precinct No. 12, Logan Township, Blaine County, State of Oklahoma. (Witness produces instrument.) Q. What is the instrument you produce? — A. Certificate of vote of precinct No. 12, Logan Township, Blaine County, State of Oklahoma. Q. We now ask that the notary mark the instrument just produced " Con- testee's Exhibit 11," for identification. Q. These returns that you have just produced, are they the returns on the State ticket or on the county ticket? — A. State ticlcet. E. R. Tayloe. Subscribed and sworn to before me this 28th day of February, A. D. 1913. [seal.] Theodore Graalman, Notary Ptihlic. My commission expires January 17, 1915. Testimony of L. R. HOWELL. Q. State your name and residence. — A. L. R. Howell ; my post-office address is Homestead, and my residence Flynn Township, precinct 13. Q. "What official position did you hold at the general election held in that voting precinct on November 5, 1912? — A. Judge. Q. You were present at that election at the voting booth and acted as judge at that election ; did you ? — A. Yes, sir. Q. I hand you contestee's Exhibit 10 and ask you what it is. — A. It is a certificate of vote of Flynn Township. Q. I will ask you to notice the signatures attached at the bottom of the exhibit and will ask you if you are acquainted with the gentlemen whose names appear signed thereto. (Objection. To which we object as immaterial.) A. J am. Q. Are you acquainted with the signatures of the five men whose names appear signed thereto? (Objection as calling for a conclusion from the witness.) A. Yes, sir. Q. Did you see the men whose signatures appear signed thereto sign their names thereto? — ^A. Yes, sir. Q. "Who acted in that precinct as counters in the general election held in precinct No. 13. Flynn Township, Blaine County. State of Oklahoma? — A. John M. Enlow, C, C, Link, George Schuber, Henry Riffle. Q. Who acted as inspector at that election? — A. C. L. Hollander. Q. "When did those gentlemen sign that instrument? — ^A. The evening of the 5th of November, 1912. Q. I will ask you to examine the instrument and state whether or not there has been any change, alteration, or mutilation thereof since you saw it signed. — A. None, except the two check marks in the certificates. Q. Do you note any change having been made in the statement of the votes cast in that precinct as to any of the candidates? — A. I do not. Q. We now offer in evidence contestee's Exhibit 10. (Objected to for the reason that the. exhibit has not been identified fully, and that the witness has not shown himself qualified to answer.) 110 CAENEY VS. MOEGAN. Cross-examinatiou by Mr. Emeky : Q. Mr. Howell, you are a Republican in politics, are you?— A. Yes, sir. Q. In your precinct there are a large number of negro voters, are there? (Objected to as incompetent, irrelevant, and immaterial, and an improper cross-examination. ) A. It all depends on what you consider a large number. Q. How many negroes voted at your precinct at the day of election? (Objected to as irrelevant and immaterial and improper cross-examination.) A. Do j^ou want the number given? Q. Just answer the best way you can. — A. There were six voted, if that is what you wanted to know, the number. Q. Was the test applied to any of these six to show their qualification to vote? (Objected to as improper cross-examination and incompetent, irrelevant, and immaterial. ) A. Not at this last election. Q. Mr. Howell, if you are acquainted with Homer Boardman, the present United States district attorney, who was Mr. Morgan's campaign manager? (Objected to as incompetent, irrelevant, and as assuming a state of facts not proven, and as improper cross-examination.) Q. Mr. Howell, you knew that at the time of the last election Mr. Boardman was United States district attorney, did you? (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination. ) A. I did not. Q. Did you know that Mr. Boardman was Mr. Morgan's campaign manager in the election of 1910? (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination.) A. I was told he was. Q. Do you remember of receiving, prior to the last election, a letter from Mr. Boardman, together with an article entitled " Talk it over with your wife," in regard to enforcing the grandfather clause on the negro ? (Objected to as incompetent, irrelevant, and immaterial, an improper cross- examination. ) A. Not to my knowledge. (Comes now the contestee and moves to strike the cross-examination of the witness for the reason the same is incompetent, irrelevant, and immaterial; and improper cross-examination, the same being an attempt to prove upon cross- p- amiuation statements and allegations contained in contestant's notice of ' ntest.) Q. Did you hear of such a letter, Mr. Howell? (Objected to as incompetent, irrelevant, and immaterial and improper cross- examination.) A. I did not. Redirect examination by Mr. Morgan : Q. Mr. Howell, were you present at the closing of the polls at this precinct on election day? — ^A. I was. Q. After the closing of the polls, what was done by the election board?— A. The ballots were counted. Q. Was there a tally sheet made up from the ballots themselves by the board? — A. There was. Q. Were you present while the counting was being done? — ^A. I was. Q. After the tally sheet was made up, what was done?— A. Signed up by the board. Q. The tally sheet was signed up by the board? — A. Yes. Q. Then from the tally sheet they made out the return or the certificate of vote marked " Contestee' s Exhibit 10 " ?— A. Yes, sir. Q. Now, after the returns were made out and signed up and the tally sheet signed up. what was done with the returns, the ballots, and the unused ballots? (Objected to for the reason that the witness has not shown himself qualified to answer.) A. Placed in the envelopes and sealed and put in the boxes, except a copy of the returns kept by the inspectors. Q. Then what was done with the box? (Objected to for the same reason.) A. It was locked up. CARNEY VS. MOEGAN". HI Q. What was theu done with the box? (Objection for the same reason.) A. The inspector took it in his charge. Cross-examination by Mr. Emery: Q. You have nothing to do with the box after the returns are placed there- in? — A. I lock one lock on each box. Q. Did you have anything more to do with the box or boxes after locking- them? — A. No. sir. " L. E,. Howell. Subscribed and sworn to before me this 26th day of February, A. D. 1913. [seal.] Theodoke Geaalman, Notary PuMic in Blaine County, State of Oklahoma. My commission expires January 17, 1915. Contestee's Exhibit 10. Certificate of vote. We, the undersigned official counters for the election held at precinct No 13 of Flynn Township of Blaine County, on Tuesday, the 5th day of November A. D. 1912, hereby certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against State questions Nos. 40 and 45 voted on is herein set forth in written words : For corporation commissioner : J. E. Love, Democrat, thirteen (13). P. J. Loewen, Republican, twenty-four (24). C. E. Hedgpeth, Socialist, eight "(8). For presidential electors. State at large: Robert. A. Baird. Democrat, fourteen (14). J. W. Bolen, Democrat, fourteen (14). H. H. Brenner. Democrat, fourteen (14). Joseph W. Fostpr, Democrat, fourteen (14). W. W. Hastings, Democrat, fourteen (14). Sam Massingale. Democrat, fourteen (14). S. H. Mayes. Democrat, fourteen (14). David Ratiier, Democrat, fourteen (14). J. D. Scott, Democrat, fourteen (14). J. C. Thompson, Democrat, fourteen (14). ,..i George M. Flick, Republican, twenty-one (21). Marshall W. Hiuch, Republican, twenty-one (21). M. P. Howser, Republican, twenty-one (21). H. L. Hix, Republican, twenty (20). Lindsey L. Long. Republican,'^ twenty-one (21). W. L. McWilliams. Republican, twenty-one (21). Ret Millard, Republican, twenty-one (21). George E. Nickel, Republican, twenty-one (21). Joseph G. Ralls. Republican, twenty-one (21). W. A. Williams, Republican, twenty-one (21). E. B. Barns, Socialist, nine (9). C. B. Boylan. Socialist, eight (8). A. R. Bradshaw. Socialist, eisht (8). W. H. Davis, eight (8). R. E. Dooley, Socialist, eight (8). Ahen Fields, Socialist, eight (8). Lewis B. Irvin, Socialist, eight (8). I. N. Johnson, Socialist, nine (9). A. W. Renshaw, Socialist, eight (8). Thos. W. Woodrow, Socialist, eight (8). M. Simpson Allen. Prohibition, one (1), J. E. Brewer, Prohibition, one (1). Chas. Brown, Prohibition, one (1). S. H. Brown, Prohibition, one (1). Taylor H. Ebersole. Prohibition, one (1). ' G. M. Hadduck, Prohibition, one (1). Chas. O. Jennings, Prohibition, one (1). J. H. Medaris, Prohibition, one (1). 112 CAENEY VS. MORGAN. For presidential electors. State at large — Continued, G. E. Eouch, Prohibition, one (1). H. E. Strickler, Prohibition, one (1). For United States Senator: Robt. L. Owen, Democrat, fifteen (15). J. T. Dickerson, Republican, twenty-three (23). John G. Wills, Socialist, eight (8). For Congressman, State at large : Wm. H. Murray, Democrat, fourteen (14). Joe B. Thompson, Democrat, fourteen (14). Claude Weaver, Democrat, fourteen (14). Alvin D. Alien, Republican, twenty-two (22). Jas. L. Brown, Republican, twenty-three (23). Emory D. Brownlee, Republican, twenty- two (22). Oscar Ameringer, Socialist, ten (10). J. T. Cumbie, Socialist, eight (8). J. Luther Langston, Socialist, eight (8). For justice supreme court, first district : John B. Turner, Democrat, fourteen (14). Charles Alston Cook, Republican, twenty-two (22). For judge criminal court appeals, southern district : Henry M. Furman, Democrat, fourteen (14). George T. Ralls, Republican, twenty-two (22). E. S. Hurt, Socialist, eight (8). For Representative in Congress, second district : P. D. McKinzy, eight (8). J. J. Carney, thirteen (13). Dick T. Morgan, twenty-two (22). For State senator, sixteenth district: S. H. Henderson, seven (7). E. J. Warner, twenty-six (26). M. B. Carley, twelve (12). For representative: John T. Long, nine (9). ' W. R. Kelly, fifteen (15). J. Jamison, twenty-two (22). State question No. 40, initiative petition No. 25 j Shall it be adopted? Yes, eleven (11). No, fifteen (15). State question No. 45, referendum petition No. 17 : Shall the proposed amendment be adopted? Yes. thirteen (13). No, nine (9). We further certify that there were — spoiled ballots, the consecutive numbers of which were numbers , and there were 209 unused ballots, the con- secutive numbers of which were from and including number 58 to and including number 266. C. C. Link, George Schuber, Henry Riffel, John M. Enlow, Official Counters. Subscribed and sworn to before me this 5th day of November, A. D. 1912. C. L. Hollander. This oath may be administered by the judge, clerk, or inspector. State or Oklahoma, Blame Covnty, ss: I, Theodore Graalman, notary public in and for Blaine County, State of Okla- homa, do hereby certify that the foregoing is a true, correct, complete, and en- tire copy of the"^ Exhibit 10 introduced in evidence by the contestee in the taking of depositions or evidence before me in the case now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Theod-ore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. CARNEY VS. MOEGAN. * 113: Testimony of W. L. BEALS. Mr. W. L. Beals, called to testify after being sworn to tell the truth, the whole truth, and nothing but the truth : Q. State your name and residence. — A. W. K Beals. Q. What is your residence?— A. Blaine County, State of Oklahoma. Q. What voting precinct do you live in? — A. No, 9. Q. That is East Dixon Township, is it? — A. Yes, sir. Q. At the last general election held on November 5, 1912, what official po- sition, if any, did you hold? — A. Judge. Q. Were you present during the entire day of the election up to the time the board disbanded? — A. Yes, sir. Q. You were duly qualified and sworn to act as judge in said precinct at said election, were you? — A. Yes. Q. I will ask you to inspect Contestee's Exhibit 4 and will ask you to state what it is. — A. Certificate of vote. Q. I will ask you to examine the signatures at the bottom and will ask you If you were present when those signatures were placed thereon. — A. Yes, sir. Q. Who acted as counters in said precinct at said election? — A. .John Howry, Frank Beals, W. L. Souther, L. McClure. Q. Who acted as inspector in that precinct at said election? — A. Mr. R. C. Rycroft. Q. I will ask you if you are acquainted with the signatures of those par- ties. — A. Yes, sir. Q. Is the signature on Contestee's Exhibit 4 of the counters and the in- spector of said precinct? — A. Yes, sir. Q. Were you present when this certificate of the vote was being written out? — ^A. Yes, sir. Q. Were you present at the time the counters were making out the tally sheets? — A. Yes, sir. Q. Were you present at the time the total vote was transferred from the tally sheet to this certificate of vote? — A. Yes, sir. Q. Was this certificate of vote taken from the tally sheet made by the counters? — A. Yes, sir. Q. Examine Exhibit 4 and state whether or not it is in the same condition as when signed up by the counters and the inspector. — -A. Yes, sir. Q. After the certificate was signed up what was done with it? — A. They were all put in an envelope and sealed up after being signed. Q. What was then done with it? — A, Put in a box. Q. Locked up?^ — A. Yes, sir. Q. What was then done with it? — ^A. The inspector took charge of the boxes. Q. Is this exhibit here, Contestee's Exhibit 4, one of the official returns of the votes cast in the precinct for State officers? — A. Yes, sir. Contestee now offers in evidence Contestee's Exhibit No. 4 and asks that a true and correct copy thereof be attached to the deposition of this witness. (Objected to, for the reason that the same has not been proven or authenti- cated and the witness not showing himself qualified to do so.) Cross-examination by Mr. Emery: Q. Mr. Beals, did any Indians or negroes or Indians vote in your district? (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination.) A. Yes, sir. Q. How many negroes and how many Indians? (Objected to as incompetent and immaterial, and improper cross-examina- tion. ) A. Well, I think there were about six or seven negroes ; I think there was about five Indians. Q. How many — did any of these negroes or Indians take the test to show their qualification to vote? — ^A. Yes, sir. Q. About how many did not take the test? (Objected to as irrelevant and incompetent, and improper cross-examina- tion. ) A. The Indians just walked up and voted if they were of age, just like any- body else. Q. Do you know if these Indians could read or write? (Objected to as incompetent, irrelevant, and improper cross-examination, and calling for a conclusion of the witness, he having not testified that he knows. ) 4252—13 8 114 CAENEY VS. MOEGAN". A. No, sir. Q. Were they blanket Indians? (Objected to as incompetent, irrelevant, and improper cross-examination.) A. Didn't have none on. Q. How many negroes voted vt'ithout taking the test? (Objected to as incompetent, irrelevant, and improper cross-examination.) A. What test do you mean? Q. I have reference to the test as to whether or i^ot they were able to read • and write any section of the State constitution. (Objected to for the same reason last above stated.) A. I think there were three. ~-Q. Why was the test not applied to these three? K Objected to as incompetent, irrelevant, immaterial, and improper cross- examination. ) A. The freedman act; their father was a white man. Q. Is that what they claimed? — -A. Yes, sir. Q. The election officers just took their word for it, did they? (Objected to as incompetent, irrelevant, and improper cross-examination.) A. Yes, sir. Redirect examination by Mr. Mokgan : (Comes now the contestee and moves to strike out the cross-examination for contestant for the reason that the same is incompetent, irrelevant, and all im- proper cross-examination, and for the reason that the same constitutes an attempt on the part of the contestant to prove an allegation in contestant's notice of contest.) W. L. Beals. Subscribed and sworn to before me this 26th day of February, 1913. [seal.] Theodoee Graalman, Notary Public. My commission expires January 17, 1915. Contestee's Exhibit 4. Certificate of vote. We, the undersigned, official counters for the election held at precinct No. — of Township of County, on Tuesday, the 5th day of November, A. D. 1912, hereby certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against State questions Nos. 40 and 45 voted on, is herein set forth in written words : For corporation commissioner : J. E. Love, Democrat, thirty-one (31). P. J. Loewen, Republican, thirty-six (36). C. E. Hedgpeth, Socialist, twenty-three (23). For presidential electors, State at large: Robert A. Baird, Democrat, thirty-one (31). J. W. Bolen, Democrat, thirty-two (32). H. H. Brenner, Democrat, thirty-three (33). Joseph W. Foster, Democrat, thirty-three (33). W. W. Hastings, Democrat, thirty-two (32). Sam Massingale, Democrat, thirty-three (33). S. H. Mayes, Democrat, thirty-two (32). David Ratner, Democrat, thirty -three (33). J. D. Scott, Democrat, thirty-four (34). J. C. Thompson, Democrat, thirty-three (33). George M. Flick, forty- two (42). Marshall W. Hinch. Republican, forty-one (4l>. M. P. Howser, Republican, forty (40). H. L. Dix. Republican, forty-one (41). Lindsey L. Long, Republican, forty-two (42). W. L. McWilliams. Republican, forty (40). Ret Millard, Republican, forty-one (41). George E. Nickel, Republican, forty-one (41). Joseph G. Ralls. Republican, forty (40). W\ A. Williams, Republican, forty (40). E. B. Barnes, Socialist, twenty-two (22). C. B. Boylan, Socialist, twenty-two (22). A. R. Bradshaw, Socialist, twenty-two (22). W. H. Davis, Socialist, twenty-two (22). CARKEY VS. MOEGAIST. * 115, For presidential electors, State at large — Continued. R. E. Dooley, Socialist, twenty-two (22). Allen Fields, Socialist, twenty-two (22). Allen Fields, Socialist, twenty-two (22). Lewis B. Irvin, Socialist, twenty-two (22). I. N. Johnson, Socialist, twenty-two (22). A. W. Eensliaw, Socialist, twenty-two (22). Thomas W. Woodrow, Socialist, twenty-two (22). M. Simpson Allen, Prohibitionist, two (2). J. E. Brewer, Prohibitionist, two (2). Charles Brown, Prohibitionist, two (2). S. H. Brown, Prohibitionist, two (2). Taylor H. Ebersole, Prohibitionist, two (2). G. M. Hadduck, Prohibitionist, two (2). Charles O. Jennings, Prohibitionist, two (2). J. H. Medaris, Prohibitionist, two (2). G. E. Rouch, Prohibitionist, two (2). H. E. Strickler, Prohibitionist, two (2). For Untied States Senator : Robert L. Owen, Democrat, thirty-six (36). J. T. Dickerson, Republican, thirty-five (35). John G. Wills, Socialist, twenty-two (22). For Congressman, State at large : Wm. H. Murray, Democrat, thirty-four (34). Joe B. Thompson, Democrat, thirty-four (34). Claude Weaver, Democrat, thirty-three (33). Alvin D. Allen, Republican, thirty-six (36). Jas. L. Brown, Republican, thirty-six (36). Emory D. Brownlee, Republican, thirty-seven (37). Oscar Ameringer, Socialist, twenty- three (23). J. T. Cumbie, Socialist, twenty-three (23). J. Luther Langston, Socialist, twenty-three (23). For justice supreme court first district: John B. Turner. Democrat, thirty-four (34). Charles Alston Cook, Republican, thirty-four (34). For judge criminal court appeals southern district : Henry M. Furman, Democrat, thirty-four (34). George T. Ralls, Republican, thirty -five (35). E. S. Hurt, Socialist, twenty-four (24). For Representative in Congress, — district: P. D. McKinzie, twenty-three (23). Dick T. Morgan, thirty-nine (39). J. J. Carney, thirty-three (33). For State senator, — district : S. H. Hendrickson, twenty-four (24). E. J. Warner, thirty-eight (38). M..B. Carley, thirty-two (32). For Representative: John T. Long, thirty-four (34). Geo. Jamison, thirty-three (33). W. R. Kelley, twenty -nine (29). State question No. 40, initiative petition No. 25 : Shall it be adopted? Yes, twenty (20). No. fifty-nine (59). State question No. 45, referendum petition No. 17 : Shall the proposed amendment be adopted? Yes, fifty-four (54). No, sixteen (16). We further certify that there was one spoiled ballot the consecutive num- ber of which was No. 64, and there were 158 unusual ballots the consecutive numbers of which were from and including Nos. 108 to and including No. 266. Feank Beals, w. l. sottthee, L. McClube, John V. Howey, R. G. Rycroft, Official Counter's. 116 CARNEY VS. MORGAN. Subscribed and sworn to before me this the 5tb day of Novenaber, A. D. 1912. This oath may be administered by the judge, clerk, or inspector. State of Oklahoma, Blaine County, ss: I, Theodore Graalman, notary public in and for Blaine County, State of Oklahoma, do hereby certify that the foregoing is a true and correct, complete, and entire copy of the Exhibit 4 introduced in evidence by^ the contestee in the taking of depositions or evidence before me in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is con- testee. [SEAL.] Theodore Graalman, Notary Puhlic, Blaine County, Olcla. My commission expires January 17, 1915. Testimony of R. G. RYCROFT. Direct examination by Mr. Morgan : Q. State your name, voting precinct in which you reside. — A. R. G. Rycroft, East Dixon, No. 9, Blaine County, State of Oklahoma. Q. What, if any, official position did you hold at the general election held in the said precinct on the .5th day of November, 1912. in said precinct. — A. I was inspector. Q. Calling your attention to Contestee's Exhibit 4, I will ask you if that is your signature at the bottom thereof? — A. Yes, sir. Q. The gentlemen whose name appears as official counters acted in that capacity at that election, did they? — ^A. They did. Q. After the ballot box containing this certificate of vote was turned into your possession on the 5th day of November. 1012. what did you do with it? — A. I delivered it to the election board of Blaine County the morning of the 6th? Q. This box was in your possession and under your control during the time when it was turned over to you on the evening of the 5th of November and the time you delivered it to the county election board on the 6th day of November, was it? — A. Yes, sir. Cross-examination : Q. Mr. Rycroft, just tell briefly about negroes and Indians voting in your precinct. (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination. ) A. Well, there were 6 or 7 Indians and 11 negroes voted. Q. Could they read and write? (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination. ) A. I couldn't sny as to the Indians. Part of the negroes were tested and the balance were not. Two of them signed affidavits that their grandfathers were freedmen. Q. Did you see that letter of Mr. Boardman and that article " Talk it over with your wife," before the election? (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination. ) A. I did. Q. What effect, if any, did these matters have on your mind, or on the mind of the election board in reference to the enforcement of the grandfather clause? (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination, and also as calling for a conclusion and opinion of the witness.) A. Well, it made me careful in putting the test for fear of getting it too strong. Q. Did you know that Mr. Boardman was at the time United States district attorney ? (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination. Q. I heard that he had got the appointment and that his name was signed to the letter. Q. Did you know that he had been in the election of 1910 Mr. Morgan's campaign manager? CARNEY VS. MOEGAN. 117 (Objected to as incompetent, irrelevant, and immaterial, and improper cross- examination. ) A. I probably knew tbat at tbe time, but I didn't give that any tbougbt. Redirect examination by Mr. Moegan : Q. Mr. Rycroft, you belong to tbe Democrat Party, do you not? — ^A. Yes, sir. Q. All of the negroes who voted except two were tested, were they not? — A. No, sir ; I think not. There were about three or four that were not tested. Q. Then, as I understand you, 7 of the 11 negroes were tested? — A. Six of the seven were tested as to their qualifications to read and write and the others signed affidavits. Q. The affidavits you speak of were the affidavits referred to above where those negroes swore that their grandfather was a white man? — A. Yes, sir. Q. Now, the remainder of the negroes who voted — how did you come to let them vote without testing them? — A. I think I was satisfied with their test in the election before. Q. You were inspector before and had tested them ? — A. Yes, sir. Q. How did you test the negroes whom you tested that day? — ^A. I tested them as to whether they could read and write. ( Comes now the contestee and moves to strike out all of the cross-examination of this witness for the reason that the same is improper cross-examination.) R. G. Ryceoft. Subscribed and sworn to before me this 26th day of February, 1913. [seal.] Theodoee Graalman, Notary Public. My commission expires January 17, 1915. Testimony of F. A. KNOTT. Direct examination by Mr. Moegan : Q. State your name and the voting precinct in which you live. — A. F. A. Knott, West Dixon, precinct No. 28. Q. State what, if any, official position you held at the general election held in that precinct on November 5, 1912. — ^A. Inspector. Q. Were the officers who presided at that election in all respects duly quali- fied to hold their office? — A. They were. Q. I will ask you to state who acted as counters at that election? — A. J. 0. Overholser, E. T. Richardson, J. F. Spangler, and W. H. Garriott. Q. Who acted as clerk at that election ?^ — A. D. H. Noble. Q. Was the election held in that precinct on that day in all respects regu- lar? — ^A. To the best of my knowledge it was. Q. Did the counters make up a tally sheet of the votes cast for candidates on the State ticket?— A. They did. Q. Did they prepare a certificate of the vote cast in said precinct for the candidates on the State ticket? — A. They did. Q. I will ask you to examine Contestee's Exhibit No. 5 and will ask you to state whether that is one of the official certificates of the vote so cast. — A. It is; I wrote out this copy myself. Q. Did you copy the number of votes cast as shown by this certificate from a tally sheet pi-epared by the counters? — A. I did. Q. Please examine the signatures of the counters and the clerk at the bottom of this certificate and I will ask you if you saw these men sign this certifi- cate?— A. I did. (Contestee now offers in evidence Contestee's Exhibit 5 and asks that a true, correct, and complete copy thereof be attached to the deposition of this witness.) Q. After this certificate was made out what was done with it? — A. It was placed in a package with the ballots voted and stub ballots and the package sealed and stamped, names of the judge and the clerk written across the end of it ; placed in the ballot box, the box locked and returned to the county elec- tion board of Blaine County on the following day. Q. This certificate was locked in the box on the night of November 5, 1912? — A. It was. Q. And was that box in your possession and under your control from the time that it was locked up to the time that it was given by you to the county election board? — A. It was. 118 CARNEY VS. M0RGA2^. Q. Asking you to examine this certificate, I will ask you if it is in the same condition it was when it was placed in the box as regards any alterations or changes? — ^A. It is. F. A. Knott. Subscribed and sworn to before me this 26th day of February, 1913. [seal.] Theodore Graalman. My commission expires January 17, 1915. Contestee's Exhibit 5. Certificate of vote. We, the undersigned official counters for the election held at precinct No. 28 (twenty-eight) of Dixon Township of Blaine County, on Tuesday, the 5th day of November, A. D. 1912, hereby certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against State Questions Numbers 40 and 45 voted on is herein set forth in written words. For corporation commissioner : J. E. Love, Democrat, twenty-seven (27). P. J. Loewen, Republican, thirty-seven (37). C. E. Hedgpeth, Socialist, four (4). For presidential electors State at large : Robert A. Baird, Democrat, twenty-six (26). J. W. Bolen, Democrat, twenty-six (26). H. H. Brenner, Democrat, twentj^-six (26). Joseph W. Foster, Democrat, twenty-six (26). W. W. Hastings, Democrat, twenty-six (26). Sam Massingale, Democrat, twenty-six (26). S. H. Mayes, Democrat, twenty-six (26). David Ratner, Democrat, twenty-six (26). J. D. Scott, Democrat, twenty-six (26). J. C. Thompson, Democrat, twenty-six (26). George M. Flick, Republican, thirty-eight (38). Marshall W. Hinch, Republican, thirty-eight (38). M. P. Howser, thirty-eight (38). H. L. Hix, Republican, thirty-eight (38). Lindsey L. Long, Republican, thirty-eight (38). W. L. Mc Williams, Republican, thirty-eight (38). Ret Millard, Republican, thirty-eight (38). George E. Nickel, Republican, thirty-eight (38). Joseph G. Ralls, Republican, thirty-eight (38). W. A. Williams, thirty-eight (38). r E. B. Barnes, Socialist, four (4). G. B. Boy Ian, Socialist, four (4). ; A. R. Bradshaw, Socialist, four (4). '. W. H. Davis, Socialist, four (4). R. E. Dooley, Socialist, four (4). Allen Fields, Socialist, four (4). Lewis B. Irvin, Socialist, four (4). I. N. Johnson, Socialist, four (4). A. W. Renshaw, Socialist, four (4). Thos. W. Woodrow. Socialist, four (4). M. Simpson Allen. Prohibitionist, one (1). J. E. Brewer, Prohibitionist, one (1). Chas. Brown, Prohibitionist, one (1). S. H. Brown, Prohibitionist, one (1). Taylor H. Ebersole, Prohibitionist, one (1). G. M. Hadduck, Prohibitionist, one (1). Chas. O. Jennings, Prohibitionist, one (1). J. H. Medaris, Prohibitionist, one (1). G. E. Rouch, Prohibitionist, one (1). H. E. Strickler, Prohibitionist, one (1). For United States Senator : Robt. L. Owen, Democrat, twenty-six (26). J. T. Dickerson. Republican, thirty-eight (38). John G. Wills, Socialist, four (4). CAENEY VS. MOEGAl^. * 119 For Congressman, State at large: Wm. H. Murray, Democrat, twenty-six (26). Joe B. Tliompsou, Democrat, twenty-six (26). Claude Weaver, Democrat, twenty-six (26). Alvin D. Allen, Republican, thirty-eight (38). Jas. L. Brown, Republican, thirty-eight (38). Emory D. Brownlee. Republican, thirty-eight (38). Oscar Ameringer, Socialist, four (4). J. T. Cumbie, Socialist, four (4). J. Luther Langstou, Socialist, four (4). For justice supreme court, first district : John B. Turner, Democrat, twenty-six (26). Charles Alston Cook. Republican, thirty-eight (38). For judge criminal court appeals, southern district: Henry M. Furman, Democrat, twenty-six (26). George T. Ralls, Republican, thirty-eight (38). E. S. Hurt, Socialist, four (4). For Representative in Congress, second district: Dick T. Morgan, thirty-nine (39). J. J. Carney, twenty-five (25). P. D. McKezie, four (4). For State senator. Sixteenth district : E. J. Warner, thirty-eight (38). M. B. Carley, twenty-six (26). S. H. Hendrickson, four (4). : For representative : George Jamison, thirty-six (36). W. R. Kelley, twenty -five (2-5). ■ -:- J. T. Long, six (6). State question No. 40, initiative petition No. 25 : - Shall it be adopted? Yes, eleven (11). . , No, twenty-seven (27). State question No. 45, referendum petition No. 17 : Shall the proposed amendment be adopted? Yes, twelve (12). •No, twenty-two (22). : , We further certify that there were no spoiled ballots, the consecutive numbers of which were numbers . and there were 194 unused ballots, the consecutive numbers of which were from and including No. 73 to and including No. 266. J. C. OVEEHOLSER, E. T. Richardson, J. F. Spangler, W. H. Garriott, Official counters. Subscribed and sworn to before me this the 5th day of November, A. D. 1912. C. H. Noble, Cleric. This oath may be administered by the judge, clerk, or inspector. State of Oklahoma, Blaine County, ss. I, Theodore Graalman, notary public in and for Blaine County, State of Okla- homa, do hereby certify that the foregoing is a true, correct, complete, and entire copy of the Exhibit 5 introduced in evidence by the contestee in the taking of depositions or evidence before me in the case now pending before the House of Representatives of the Sixty-third Congress of the United States of America^ wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Olclahoma. My commission expires January 17, 1915. Testimony of HARVEY LAUGHLIN. Direct examination by Mr. Morgan : Q. State your name and the voting precinct in which you live? — A. Harvey Laughlin, Arapaho Township. No. 8, Blaine County, State of Oklahoma. 120 CAKNEY VS. MORGAN. Q. What, if any, official position did you hold in said precinct, at the general election held therein on the 5th day of November, 1912? — A. I was clerk. Q. Who were the counters in that precinct at that election? — A. L. D. Adamson, Otis Work, J. H. Riggs, R. A. Tolle. Q. Who acted as inspector in that precinct? — A. J. R. Whistler. Q. Who acted as judge? — ^A. W. E. Dykes. Q. Were you present on election day, at all times from the opening of the polls until the counting was finished? — A. Yes, sir. Q. Were you present when the counters made out their tally sheet? — ^A. Yes, sir. Q. After the tally sheets were made up, and the votes counted, what further acts were done by the board? — ^A. The counters counted the votes and we filled out these certificates of the votes and then Q. I will ask you to examine Contestee's Exhibit 1 and ask you to state what it is? — A. Well, this is a certificate of the vote from that precinct. Q. As between the candidates on the State ticket?— A. Yes, sir. Q. I will ask you to examine the signature at the bottom of this instru- ment and will ask you whose signature it is? — ^A. This is my own signature. Q. Whose signatures are those at the bottom of this sheet designated as official counters? — A. Those are the signatures of the official counters of Arapa- hoe Township. Q. Did you see them sign it? — A. Yes, sir. Q. I will ask you to examine Contestee's Exhibit 1, and state what was done with this certificate, and state what was done after it was signed by the counters and yourself. — A. We placed this in an envelope and sealed it and put it in a box and locked the box and turned it over to Mr. Whistler. Q. What, if you know, did he do with it? — A. All I can swear to about that Is, we took this down to Mr. Whistler's house that night. Q. I will ask you to examine Contestee's Exhibit No. 1 and state whether it is in the same condition as when placed in the envelope by the board. — A. I be- lieve that is just the same as it was with the exception of the stenographer's mark " Exhibit 1." Q. Did you write out that certificate yourself? — A. Yes, sir. Q. Did you copy the entries of the votes cast in that precinct from one of the official tally sheets? — ^A. Yes, sir. (Contestee now offers in evidence Contestee's Exhibit 1 and asks that a true, correct, and complete copy thereof be attached to this deposition. ) Harvey Laughlin. Subscribed and sworn to before me this 26th day of February, 1913. [SEAL.] TiiEODOKE Gbaalman, Notary Public. My commission expires January 17, 1915. Contestee's Exhibit 1. Certificate of vote. We, the undersigned official counters for the election held at precinct No. 8, of Arapaho Township, of Blaine County, on Tuesday, the 5th day of November, A. D. 1912, hereby certify that the correct number of votes cast at said precinct, in said election, for the various candidates, and for and against State questions Nos. 40 and 45, voted on, is herein set forth in written words. For corporation commissioner : J. E. Love, Democrat, twenty-eight. P. .J. Loewen, Republican, forty-two. C. E. Hedgpeth, Socialist, fourteen. For presidential electors. State at large: Robert A. Baird, Democrat, twenty-seven. J. W. Bolen, Democrat, twenty-seven. H. H. Brenner, Democrat, twenty-six. Joseph W. Foster, Democrat, twenty-six. W. W. Hastings, Democrat, twenty-six. ■Sam Massingale, Democrat, twenty-six. S. H. Mayes, Democrat, twenty-six. David Ratuer. Democrat, twenty-six. caenpjy vs. morgan. 121 For presidential electors, State at large — Continued. J. D. Scott, Democrat, twenty-six. J. C. Thompson, Democrat, twenty-six. George M. Flick, Republican, forty-four. Marshall W. Hinch, Republican, forty-three. M. P. Howser. Republican, forty-three. H. L. Hix, Republican, forty-two. tindsey L. Long, forty-three. W. L. McWilliams, Republican, forty-two. Ret Millard, Republican, forty-two. George E. Nickel, Republican, forty -two. Joseph G. Ralls, Republican, forty-two. W. A. Williams, Republican, forty-three. E. B. Barnes, Socialist, fourteen. C B. Boylan. Socialist, fourteen. A. R. Bradshaw. Socialist, fourteen. W. H. Davis, Socialist, fourteen. H. E. Dooley, Socialist, fourteen. Allen Fields. Socialist, fourteen. Lewis B. Irvin. Socialist, fourteen. I. N. Johnson, Socialist, fourteen. A. W. Renshaw, Socialist, fourteen. Thos. W. Woodrow, Socialist, thirteen. M. Simpson Allen, Prohibitionist, two. J. E. Brewer. Prohibitionist, two. Chas. Brown, Prohibitionist, two. S. H. Brown, Prohibitionist, two. Taylor H. Ebersole, Prohibitionist, two. G. M. Hadduck. Prohibitionist, two. Chas. O. Jennings. Prohibitionist, two. J. H. Medaris. Prohibitionist, two. G. E. Rouch. Prohibitionist, two. H. E. Strickler. Prohibitionist, three. For United States Senator: Robt. L. Owen. Democrat, thirty. J. T. Dickerson. Republican, forty-four. John G. Wills. Socialist, fourteen. For Congressman. State at large : Wm. H. Mni-ray, Democrat, twenty-eight. Joe B. Thompson. Democrat, twenty-seven. Claude Weaver. Democrat, twenty-seven. Alvin D. Allen. Republican, forty-three. Jas. L. Brown, Republican, forty-three. Emory D. Brownlee, Republican, forty-five. Oscar Amering;er. Socialist, fourteen. J. T. Cumbie, Socialist, fifteen. J. Luther Langston, Socialist, fourteen. For justice, supreme court, first district: John B. Turner, Democrat, twenty-nine. Charles Alston Cook, Republican, forty-four. For .iudge, criminal court of appeals, southern district Henry M. Furman, Democrat, twenty-eight. George T. Ralls. Republican, forty-five. E. S. Hurt. Socialist, fifteen. For Representative in Congress, second district: • J. J. Carney, twenty-seven. D. L. Morgan, forty-seven. P. D. McKenzie. thirteen. For State senator, sixteenth district : M. B. Carley, twenty-nine. E. J. Warner, forty-three. S. H. Hendrickson, thirteen. For representative : W. R. Kelly, twenty-four. George Jamison, forty-seven. John T. Long, fifteen. 122 CAENEY VS. MOEGAN. State question No. 40, initiative petition No. 25 : Siiall it be adopted? Yes, twenty-one. No, fifty-one. State question No. 45, referendum petition No. 17 : Shall the proposed amendment be adopted? Yes, forty-six. No, sixteen. ■• We further certify that there were no spoiled ballots, the consecutive num- bers of which were numbers 1 to 97, and there were 170 unused ballots, the consecutive numbers of which were from and including numbers 96 to 266 to and including number . L. D. Adamson, Otis Work, J. H. RiGGS, R. A. TOLLE, Harvey Laughlin, Official Counters. Subscribed and sworn to before me this the 5th day of November, A. D. 1912. This oath may be administered by the clerk. State of Oklahoma, Blaine County, ss: I, Theodore Graalman, notary public in and for Blaine County, State of Oklahoma, do hereby certify that the foregoing is a true, correct, complete, and entire copy of the Exhibit 1 introduced in evidence by the contestant in the taking of depositions or evidence before me in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Theodore Graalman, Notary Public, Blaine County, Okla. My commission expires January 17, 1915. Testimony of W. E. DYKES. Direct examination by Mr. Morgan : <3. State your name and voting precinct in which you live. — A. W. E. Dykes ; my voting precinct is Arapaho. Q. What, if any, official position did you hold at the last general election held in the said precinct on the 5th day of November, 1912? — A. Judge. Q. Were you present all that day until the votes and ballots were locked in the boxes? — ^A. Yes, sii\ Q. Was the election held in that precinct regular in all respects? — ^A. To the best of my judgment. Q. There were no irregularities that you know of? — A. No. W. E. Dykes. Subscribed and sworn to before me this 26th day of February, 1913. [seal.] Theodore Graalman, 'Notary Puhlic. My commission expires January 17, 1915. Testimony of A. L. SLAYTON. Direct examination by Mr. Morgan : A. L. Slayton, of lawful age, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testified as follows : Q. State your name, residence, and the voting precinct in which you live. — A. A. L. Slayton, Canton, precinct No. 23. Q. What, if any, official position did you hold in said township and voting precinct at the general election held November 5. 1912? — ^A. Inspector. Q. Who acted as counters at said election? — A. E. A. Mitchell, H. J. Enlow, J. E. Lyon, R. B. McGuire. Q. Who acted as clerk and judge. — A. F. A. Wallen as judge and T. W. Martin clerk. Q. Calling your attention to Contestee's Exhibit 6, I will ask you to state what that is. — ^A. Certificate of vote. CAENEY VS. MOKGAN. 123 Q. Certificate of vote cast at said election for the candidates on tlie State ticket? — A. Yes, sir. Q. Were you present all of the day of the election up to the time the ballot boxes were locked? — A. Yes, sir. Q. Were you present when this certificate of vote was made out? — A. I was in the room. Q. Was that certificate of vote made out by some member of the election board from a tally sheet prepared by the counters? — A. It was got out by the counters. After they had signed it I signed it. Q. What was done with this certificate of vote after it was prepared and signed by the counters and yourself? — A. It was sealed in an envelope and placed in the ballot box. Q. Was the envelope sealed with wax in the form required by law?— A. Yes, sir; it was sealed with wax. Q. After this envelope was sealed what was done with it? — A. It was placed in the ballot box and locked. Q. What was then done with the ballot box?— A. I took them home until the next morning, then brought them to Watonga and turned them over to the county election board. Q. Please examine contestee's Exhibit No. 6 and state if this is in the same condition it was when placed in the ballot box in the sealed envelope. — A. I would say that it is. Q. Do you note any changes or alteration thereon? — A. No, sir. ( Contestee now asks that the Exhibit 6 be introduced in evidence and that a true, correct, and complete copy thereof be attached to the deposition of this witness.) , . . Q. Was the election held in precint No. 23 of Canton Township m all re- spects regular?— A. To the best of my knowledge it was. Q. The election concerning which you have .iust testified took place in pre- cinct No. 23, Canton Township, which is in Blaine County, State of Oklahoma, did it?— A. Yes, sir. Q Examine Exhibit 6 and state what it shows the vote to have been cast for John J. Carney and Dick T. Morgan, respectively.— A. John J. Carney, 55 ; Dick T. Morgan, 104. A. L. Slayton. Subscribed and sworn to before me this 27th day of February, A. D. 1913. [SEAL.] Theodore Graalman, Notary PuliHc. My commission expires January 17, 1915. Contestee's Exhibit 6. Certificate of vote. We the undersigned official counters for the election held at precinct No. 23 of Canton Township of Blaine County, on Tuesday, the 5th day of November, A D. 1912, herebv certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against State questions Nos. 40 and 45 voted on is herein set forth in figures. For corporation commissioners: J. E. Love, Democrat ^ P. J. Loewen, Republican i^* C. E. Hedgpeth, Socialist ^^ For presidential electors State at large : Robert A. Baird, Democrat ^j J. W. Bolen, Democrat 9i H. H. Brenner, Democrat. 50 Joseph W. Foster, Democrat ^ W. W. Hastings, Democrat ^1 Sam Massingale, Democrat ^i S. H. Mayes, Democrat 2^ 50 50 David Ratner, Democrat. J. D. Scott, Democrat- J. C. Thompson, Democrat ^ Geo. M. Flick, Republican i^^ 124 . CAKN^EY VS. MORGAN. For presidential electors, State at large — Continued. Marshall W. Hinch, Republican 106 M. P. Howser, Republican 106 H. L. Hix, Republican 106 Lindsey L. Long, Republican 106 W. L. McWilliams, Republican 106 Ret Millard, Republican 107 Geo. E. Nickel, Republican 106 Joseph G. Ralls, Republican 108 W. A. Williams, Republican 106 E. B. Barnes, Socialist 39 C. B. Boylan, Socialist 39 A. R. Bradshaw. Socialist 39 W. H. Davis, Socialist 39 R. E. Dooley, Socialist 39 Allen Fields, Socialist 39 Lewis B. Irvin, Socialist 39 I. W. Johnson, Socialist 39 A. W. Renshaw, Socialist 39 Thomas W. Woodrow, Socialist 39 M. Simpson Allen, Prohibition , 1 J. E. Brewer, Prohibition 1 Chas. Brown, Prohibition 1 S. H. Brown, Prohibition 1 Taylor H. Ebersole, Prohibition 1 G. M. Hadduck, Prohibition 1 Chas. O. Jennings, Prohibition 1 J. H. Modaris, Prohibition 1 G. E. Rouch, Prohibition 1 H. E. Strickler, Prohibition 1 For United States Senator: Robt. L. Owen, Democrat 55 J. T. Dickerson, Republican 102 John G. Wills 39 For Congressman, State at large : Wm. H. Murray, Democrat 51 Joe B. Thompson, Democrat 49 Claude Weaver, Democrat 48 Alvin D. Allen, Republican 105 Jas. L. Brown, Republican 105 Emory D. Brownlee, Republican 106 Oscar Ameringer. Socialist 39 J. T. Cumble, Socialist 39 J. Luther Langston, Socialist 39 For justice supreme court, first district : John B. Turner, Democrat 53 Chas. Alston Cook, Republican 104 For judge criminal court appeals, southern district : Henry M. Furman, Democrat 53 Geo. T. Ralls, Republican 100 W. S. Hurt, Socialist 39 For Representative in Congress, second district: Dick T. Morgan 104 J. J. Carney 55 H. D. McKenzie 37 For State senator, sixteenth district : E. S. Warner 105 M. B. Corley 51 S. H. Hendrickson 40 For representative: George Jamison 95 W. R. Kelly 6S J. F. Long 40 State question No. 40. initiative petition No. 25 : Shall it be adopted?— Yes 63 No 77 CARNEY VS. MORGAN. 125 State question No. 45, referendum petition No. 17 : Sliall the proposed amendment be adopted? — Yes 65 No 30 We further certify that there were 3 spoiled ballots, the consecutive numbers of which were Nos. 43, 28, and 44, and that there were 60 unused, the con- secutive numbers of which were from and including Nos. — to and including — . E. A. Mitchell, H. J. INLOW, J. E. Lyons, R. B. McGtjibe, Official Counters. A. T. Slayton. Subscribed and sworn to before me this 5th day of November, A. D. 1912. , Cleric. This oath may be administered by the judge, clerk, or inspector. State of Oklahoma, Blaine County, ss: I, Theodore Graalman, notary public in and for Blaine County, State of Oklahoma, do hereby certify that the foregoing is a true, correct, complete, and entire copy of the Exhibit 6 introduced in evidence by the contestee in the taking of depositions or evidence before me in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. [SEAL.] Theodore Graalman, Notary PuUic, Blaine County, State of Oldahoma. My commission expires January 17, 1915. F. A. WALLEN, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testified as follows : Q. State your name, residence, and voting precinct in which you live. — ^A. F. A. Wallen, Canton Township, Blaine County, State of Oklahoma, precinct No. 23. Q. What, if any, official position did you hold at the last general election held on November 5, 1912? — A. I was election judge. Q. Were you present during all the day of the election and all of the time the election board was in session on that day? — A. Yes, sir. Q. There was an election held on that day, was there? — A. Yes, sir. Q. Asking you to examine Contestee's Exhibit 6, I will ask you to state what it is. — A. Certificate of vote for office on the State ticket. Q. Please note especially the signatures of the counters and the inspector at the bottom thereof, and state whether you saw those signatures signed thereto. — ^A. Yes, sir. Q. Those signatures are the signatures of the counters and the inspector of that precinct, are they? — A. Yes, sir. Q. Were you present when the Exhibit No. 6 was made out? — ^A. Yes, sir. Q. Was the votes shown thereon taken by some of the election officials from the tally sheet made up by the counters? — A. Yes, sii. F. A. Wallen. Subscribed and sworn to before me this 27th day of February, A. D. 1913. [seal.] Theodore Graalman, Notary Pudlic. My commission expires January 17, 1915. J. C. DIMMETT, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies as follows : Q. State your name, your residence, and the voting precinct in which you live. — A. J. C. Dimmett, Carlton Township, precinct No. 29. Q. What, if any, official position did you hold at the last general election held in Carlton Township, precinct No. 29, Blaine CouDty, State of Oklahoma? — A. Judge. Q. Were you present during the entire time the election board in that precinct were in session on that day? — A. I was. 126 CAKISTEY VS. MOKGAlSr. Q. Was there au election held on that day at which votes were cast for Con- gressman in the second congressional district of the State of Oklahoma? — A. Yes. Q. Was the election board in that precinct on that day duly organized? — ^A. It was. Q. Were the officers who acted on that day duly qualified? — ^A. They were. Q. I will ask you to examine Contestee's Exhibit No. 8 and ask you to state what it is. — ^A. Certificate of votes cast. Q. At that election? — A. Yes. Q. Were you present when this^certificate of vote was made up? — A. Yes, sir. Q. From what were the totals shown thereon taken? — A. From the tally sheet. Q. Please examine the signatures attached at the bottom of this certificate and state if you know the signatures appearing thereon? — ^A. Yes, sir. Q. Who acted as counters in said precinct at said election? — A. J. C. Schafer, Dave Sinner. A. E. Condoner, and George White. Q. Who acted as inspector in that precinct? — A. John McGee. Q. Who acted as clerk? — ^A. John B. Lemon. Q. Are you acquainted with the signatures of the men who acted as counters and as clerk at said election? — ^A. Yes, sir. Q. Please examine the signatures attached to Contestee's Exhibit No. 8 and state whether or not the signatures attached thereto are the signatures of the counters and the clerk, respectively, who acted at said election as such offi- cials. — ^A. Yes, sir. Q. Did you see those gentlemen sign their name to that certificate? — ^A. Yes, sir. Q. After this certificate was made out, what was done with it? — A. Put in an envelope, sealed and put in the ballot box. Q. What was then done with the ballot box? — A. It was locked up and turned over to the inspector. Q. What was then done with the box, if you know? — A. The inspector took charge of them; they was in his possession until in the morning and then brought down to the county election board. Q. Please examine Contestee's Exhibit No. 8 and state whether or not it is in the same condition now as when signed by the counters and the clerk of said election board as changes, alterations, or mutilations. — A. I don't see no altera- tions nor changes. (Contestee now offers in evidence Contestee's Exhibit No. 8 and asks that a true, correct, and complete copy thereof, duly certified, be attached to the depo- sition of this witness. ) (To which we object as incompetent and irrelevant and not proven identified or authenticated.) Cross-examination by Mr. Emery: Q. The negroes and Indians who voted in your precinct, state whether or not the test as to whether or not they were able to read and write was applied to them, and if not, why not? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial and as improper cross-examination. A. Well, we had tested those Indians. But I know some of them could write. Well, Mr. McGee was the inspector two years ago, and they were eligible to vote, he said. They voted two years ago and they let them vote this time. Q. Do you know whether or not the test was applied either this last election, or two years ago, to the Indians? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and im- proper cross-examination. A. I don't know. I was not in that township two years ago. Q. Can you state the number of Indians who voted who could not read or write? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and im- 13|"oper cross-examination. A. Well, there were some I don't Ivuow whether they could read or write or not. Q. Now, did you see this letter of Mr*. Boardman, United States district attorney, in reference to enforcement of the grandfather clause at any time before the close of the election? CARISrEY VS. MORGAlSr. 127 Mr. Morgan. Objected to as incompetent, irrelevant, and iromaterial, and improper cross-examination. A. I can't say on what day I got that. Q. Did you get it before the close of the election, before the polls closed? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and im- proper cross-examination, it not having been shovs^n that the contestee, nor anyone by or for him, wrote, or had written, or sent, or had sent the letter and circular referred to. A. Well, I can't say when I got that letter. Q. Did you know of that letter on the day of the election ? Mr. Morgan. Objected to for the reason last above stated. A. I think it came the evening after the polls closed. I think I got it that day. I wouldn't be positive about that. Mr. Morgan. Comes now the contestee and moves to strike from the record all of the cross-examination of this witness for the reason that the same is incompetent, irrelevant, and immaterial, and improper cross-examination. J. C. DiMMETT. Subscribed and sworn to before me this 27th day of February, 1913. [seal.] Theodore Gkaalman, 'Notary Putlic. My commission expires January 17, 1915. Contestee's Exhibit No. 8. Certificate of vote. We, the undersigTied, official counters for the election held at precinct No. 29 of Carlton Township of Blaine County on Tuesday, the 5th day of November, A. D. 1912, hereby certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against State questions Nos. 40 and 45 voted on is herein set forth in written words. For corporation commissioner : J. E. Love, Democrat, thirteen. P. J. Loewen, Republican, fifty-one. C. E. Hedgpeth, Socialist, fifteen. For presidential electors. State at large : Robt. A. Baird, Democrat, thirteen. J. W. Bolen, Democrat, thirteen. H. H. Brenner, Democrat, thirteen. Joseph W. Foster, Democrat, thirteen.. W. W. Hastings, Democrat, fourteen.. Sam Massingale, Democrat, fourteen. S. H. Mayes, Democrat, fourteen. David Ratner, Democrat, fourteen. J. D. Scott, Democrat, fourteen. J. C. Thompson, Democrat, fourteen. Geo. M. Flick, Republican, fifty. Marshall W. Hinch, Republican, fifty-one. M. P. Howser, Republican, fifty. H. L. Hix, Republican, fifty. Lindsey L. Long; Republican, fifty. W. L. McWilliams, Republican, fifty. Ret Millard, Republican, fifty. Geo. E. Nickel, Republican, fifty. Joseph G. Ralls, Republican, fifty. W. A. Williams, Republican, fifty. E. B. Barnes, Socialist, thirteen. C. B. Boylan, Socialist, thirteen. A. R. Bradshaw, Socialist, thirteen. W. H. Davis, Socialist, thirteen. R. E. Dooley, Socialist, thirteen. Allen Fields, Socialist, thirteen. Lewis B. Irvin, Socialist, thirteen. I. N. Johnson, Socialist, thirteen. A. W. Renshaw, Socialist, thirteen., Thos. AV. Woodrow, Socialist, thirteen. M. Simpson Allen, Prohibition. 128 CARNEY VS. MOEGAN. For presidential electors, State at large — Continued. J. E. Brewer, Probibition. Clias. Brown, Prohibition. S. H. Brown, Prohibition. Taylor H. Ebersole, Prohibition. G. M. Haddnck, Prohibition. Chas. O. Jennings. Prohibition. J. H. Medaris, Prohibition. G. B. Rouch, Prohibition. H. E. Strickler, Prohibition. For United States Senator : Robt. L. Owen, Democrat, thirteen. J. T. Dickerson. Republican, forty-eight. . John G. Wills, thirteen. For Congressman, State at large : Wm. H. Murray, Democrat, fifteen. Joe B. Thompson, Democrat, thirteen. Claude Weaver, Democrat, thirteen. Alvin D. Allen, Republican, forty-nine. Jas. L. Brown, Republican, forty-nine. Emory D. Brownlee, Republican, fifty. Oscar Ameringer, Socialist, fourteen. J. T. Gumble, Socialist, fourteen. J. Luther Langston, Socialist, fourteen. For justice supreme court, first district : John B. Turner, Democrat, thirteen. Chas. Alston Cook, Republican, fifty-three. For judge criminal court appeals, southern district : Henry M. Furman, Democrat, fourteen. Geo. T. Ralls, Republican, forty-nine. E. S. Hurt, Socialist, fourteen. For Representative in Congress, second district : Dick T. Morgan, fifty-one. J. J. Carney, thirteen. H. D. McKenzie, fourteen. For State senator, sixteenth district: E. S. Warner, fifty-two. M. B. Corley, fourteen. S. H. Hendrickson, twelve. For representative: George Jamison, fifty-two. W. P. Kelly, thirteen. J. P. Long, twelve. State question No. 40. Initiative petition No. 25 : Shall it be adopted? Yes, fifty-two. No, fourteen. State question No. 45, Referendum petition No. 17 : Shall the proposed amendment be adopted? Yes, forty-four. No, sixteen. We further certify that there were no spoiled ballots, the consecutive num- bers of which were Nos. , and that there were 116 unused, the consecutive numbers of which were from and including Nos. 42 to and including 266. j. c. schafer, Dave Sinner, a. e. condonier, George White, Official Counters. John B. Lemon. Subscribed and sworn to before me this 5th day of November, A. D. 1912. This oath may be administered by the judge, clerk, or inspector. State of Oklahoma, Blaine County, ss: I, Theodore Graalman, notary public, in and for Blaine County, State of Oklahoma, do hereby certify that the foregoing is a true, correct, complete, CARNEY VS. MOKGAN. 129 and entire copy of the Exhibit 8 introduced in evidence by the contestee in the tailing of depositions or evidence before rue in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is con- testee. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oldahoma. My commission expires January 17, 1915. JOHN McGEE, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies as follows : Q. Stute your name, the township in which you live, and the voting precinct. — A. John McGee, Carlton Township, precinct No. 29. Q. What official position, if any, did you hold at the general election held in said precinct on November 5, 1912? — A. Inspector. Q. Calling your attention to Contestee's Exhibit No. 8, same being certificate of vote cast in said precinct at said election, I will ask you what was done with the box in which it was deposited on the evening of the election? — ^A. I took the box and took it to where I slept, and there held it until morning, brought it to Watonga, put it in the hands of the county election board. Q. Was there any opportunity during the time in which it was in your posses- sion for any change or alteration of this certificate? — A. For anyone to tamper with it? No, sir. Cross-examination by Mr. Emery : Q. Mr. McGee, ' what can you say in reference to negroes voting in your precinct, and about the test regarding their ability to read and write being applied to themV Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and improper cross-examination. A. I never did test them — this time, Q. Now, just state, Mr. McGee. why it was you did not test them this time. Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and im- proper cross-examination. A. Simply because I tested them two years ago, and I thought that was suffi- cient. Q. Did you ever see that letter of Mr. Boardman, United States district attorney, and also that article "Talk it over with your wife," before the close of the polls on the day of the election? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and im- proper cross-examination, and for the reason that it has not been shown that the contestee herein sent or had sent, or wrote or had written, said letter and circular, or either of them. A. I ain't got no wife. Q. Mr. McGee, I have reference to that article which was sent out with the letter of Boardman, and the article was entitled, " Talk it over with your * wife." Mr. Morgan. Objected to for the same reason last above stated. A. Well, I talked it over with myself and the rest of the board. Q. Well, now, what effect did this letter of Boardman and this article have on yourself, and on the election board, in reference to the enforcement of the grandfather clause? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and improper cross-examination. A. I don't know as it had any effect on me. Comes now the contestee and moves to strike the entire cross-examina- tion of the witness for the reason the same is incompetent, irrelevant, and immaterial, and improper cross-examination, and an attempt on the part of ' the contestant to prove statements and allegations contained in the contestant's notice of contest. John McGee. Subscribed and sworn to before me this 27th day of February, 1913. [seal.] Theodore Graalman, Notary PuMic. . My commission expires January 17, 1915. 4252—13 9 130 CARISrEY vs. MOKGAN. JOHN B. LEMON, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Q. State your name, residence, and voting precinct in which you live. — A. John B. Lemon, Carlton Township, precinct No. 29, Blaine County, State of Oklahoma. Q. What official position, if any. did you occupy at the general election held in said precinct on November 5, 1912? — A. Clerk. Q. I will ask you to examine the signature, of John B. Lemon, attached to €onttestee's Exhibit No. 8, and ask you if that is your signature? — A. Yes, sir. Q. Examine Contestee's Exhibit No. S and state whether or not it is in the same condition now as it was when you signed it.- — A. It is. John B. Lemon. .'Subscribed and sworn to before me this 27th day of February, 1913. ![SEAL.] - Theodore Graalman, Notary Piihlic. My commission expires January 17, 1916. E. W. CARTER, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies: Q. State your name, the township in which you live, and the voting pre- cinct. — A. F. W. Carter, East Lincoln Township, precinct 30. Q. What, if any, official position did you hold in said precinct at the general election held November 5. 1912. therein? — A. Judge. Q. Were you present on that d^ay at the polling place in said precinct during the entire time the election board thereof was in session? — A. Yes, sir. Q. State who acted as counters in said precinct at said election. — A. Martin Geiger, Enos Williams. E. Keely, John Funk. Q. Who acted as inspector? — A. Henry Spreitzer. Q. Who acted as clerk? — ^A. Henry Husemeyer. Q. Were votes cast at said election for Congressman of the second district, State of Oklahoma? — A. Yes. sir. Q. Was the election board duly organized at the opening of the polls on that day? — ^A. To the best of my knowledge it was. Q. The polls were open during the time required by law, were they?— A. Yes, sir. Q. I will ask you to examine Contestee's Exhibit No. 7 and ask you to state what it is. — A. Certificate of vote. Q. Cast in said precinct? — A. No. 30. Q. What township? — ^A. Lincoln Township, Blaine County, State of Okla- homa. Q. Were you present at the time this certificate was prepared? — A. Yes, sir. Q. From what were the totals of the vote cast shown thereon taken? — ^A. J'i'om the tally sheets. Q. Prepared by the counters? — A. l^es, sir. tQ. Examine the signatures at the bottom of this sheet and state whether or not you saw the gentlemen whose names appear there sign said certificate. — A. I did. . Yes ; I saw them sign. Q. What was done with this certificate after it was signed? — A. Put in an (envelope and sealed — the returns and. ballots. Q. What was then done with that envelope? — A. It was sealed with wax and istamped with the election seal, then wrote across the flap by two of the mem- "bers of the board ; their names. Q. What was then done with the envelope? — A. This one was put in the fballot box, locked by the inspector and myself. Q. What was then done Avith the box? — A. Turned over to the inspector for •delivery. ■Q. Asking you to examine Contestee's Exhibit No. 7, I will ask you to state whether or not it is in the same condition now as it was when you saw it signed on the night of November 5, 1912, as regards changes, alterations, or erasures? — A. To the best of my recollection, it is in the same condition. Q. Do you see any erasures or changes thereon? — A. No, sir. F. W. Carter. Subscribed and sworn to before me this 27th day of Febi'uary. 1913. [seal.] Theodoee Graalman. My commission expires January 17, 1915, CARNEY VS. MOEGAlSr. 131 Contestee's Exhibit No. 7. Certificate of vote. We, the undersigned official counters for the election held at precinct No. 30 of Lincoln Township, of Blaine County, on Tuesday the 5th day of Novem- ber, A. D. 1912, hereby certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against State questions Nos. 40 and 45 voted on is herein set forth in vpritten vpords. For corporation commissioner : J. E. Love, Democrat, ten (10). P. J. Loewen, Republican, twenty-eight (28). C. E. Hedgpeth, Socialist, thirty-six (36). For presidential electors. State at large : Robert A. Baird, Democrat, nine (9). J. W. Bolen, Democrat, nine (9). H. H. Brenner, Democrat, nine (9). Joseph W. Foster, Democrat, nine (9). W. W. Hastings, Democrat, nine (9). Sam Massingale, Democrat, ten (10). S. H. Mayes, Democrat, nine (9). David Ratner, Democrat, nine (9). J. D. Scott, Democrat, nine (9). J. C. Thompson, Democrat, nine (9). Geo. M. Flick, Republican, thirty-two (32). Marshall W. Hinch. Republican, thirty (30). M. P. Howser, Republican, thirtv-one (31). H. L. Hix, Republican, thirty (30). Lindsey L. Long, Republican, thirty (30). W. L. McWilliams. Republican, thirty (30). Ret Millard, Republican, thirty (30). George E. Nickel. Republican, thirty-one (31). Joseph G. Ralls, Republican, thirty (30). W. A. Williams, Republican, thirty (30). E. B. Barnes, Socialist, thirtv-seven (37). C. B. Boylan. Socialist, thirty-eight (38). A. R. Bradshaw, Socialist, thirty-eight (38). W. H. Davis, Socialist, thirty-eight (38). R. B. Dooley, Socialist, thirty-eight (38). Allen Fields. Socialist, thirty-seven (37). Lewis B. Irvin, Socialist, thirty-eight (38). I. N. Johnson, Socialist, thirty-eight (38). A. W. Renshaw, Socialist, thirt.v-seven (37). Thomas W. Woodrow, Socialist, thirty-seven (37). M. Simpson Allen, Prohibitionist, three (3). J. B. Brewer, Prohibitionist, three (3). Chas. Brown, Prohibitionist, three (3). S. H. Brown, Prohibitionist three (3). Taylor H. Ebersole, Prohibitionist, three (3). G. M. Hadduck, Prohibitionist, three (3). Chas. O. Jennings, Prohibitionist, three (3). J. H. Medaris, Prohibitionist, three (3). G. E. Rouch, Prohibitionist, three (3). H. E. Strickler, Prohibitionist, three (3). For United States Senator : Robt. L. Owen, Democrat, eleven (11). J. T. Dickerson, Republican, twenty-six (26). John G. Wills. Socialist, thirty-seven (37). For Congressman, State at large: Wm. H. Murray, Democrat, twelve (12). Joe B. Thompson, Democrat, twelve (12). Claude Weaver, Democrat, twelve (12). Alvin D. Allen, Republican, twenty-eight (28). Jas. L. Brown, Republican, twenty-seven (27). Emory D. Brownlee, Republican, tweutj'-nine (29). 132 CABNEY VS. MOKGAN. For Congressman, State at large — Continued. Oscar Ameringer, Socialist, thirty-seven (37). J. T. Cumbie, Socialist, thirty-seven (37). J. Luther Langston, Socialist, thirty-seven (37). For Justice Supreme Court, First District : John B. Turner, Democrat, eleven (11). Charles Alston Cook, Republican, twenty-eight (28). For Judge Crimuial Court of Appeals, Southern District: Henry M. Furman, Democrat, eleven (11). George T. Ralls, Republican, twenty-eight (28). E. S. Hurt, Socialist, thirty-five (35). For Representative in Congress, Second District : J. J. Carney, Democrat, ten (10). • Dick T. Morgan, Republican, thirty (30). T. D. McKinzie, Socialist, thirty-six (36). For State Senator, Sixteenth District: M. B. Corley, Democrat, eleven (11). E. J. Warner, Republican, twenty-seven (27). S. H. Hendrickson, Socialist, thirty-six (36). For Representative: W. R. Kelley, Democrat, twelve (12). George Jamison, Republican, twenty-five (25). J. F. Long, Socialist, thirty -nine (39). State Question No. 40. Initiative Petition No. 25 : Shall it be adopted?— Yes, thirtj'-eight (38). No, nineteen (19). State Question No. 45, Referendum Petition No. 17 : Shall the proposed amendment be adopted? — Yes, thirty-two (32). No, nineteen (19). We further certify that there was 1 spoiled ballot, the number of which was No. 12, and there were 174 unused ballots, 93 the consecutive numbers of which were from and including No. 93 to and including No. 266. Enos Williams, Martin Gigeb, E. Keeley, John C. Funk, Official Counters. Subscribed and sworn to before me this 5th day of November, A. D. 1912. Henry Spbeitzeb. This oath may be administered by the judge, clerk, or inspector. State of Oklahoma, Blaine County, ss. I, Theodore Graalman, notary public in and for Blaine County, State of Okla- homa, do hereby certify that the foregoing is a true, correct, complete, and en- tire copy of the Exhibit 7 introduced in evidence by the contestee in the taking of depositions or evidence before me in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. HENRY SPREITZER, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Q. State your name, the township and voting precinct in which you live. — A. Henry Spreitzer ; Lincoln Township, precinct No. 30. Q. What, if any, oflicial position did you hold in said precinct at the general election held November 5, 1912, therein? — A. Inspector. Q. Were you pi'esent on that day at the polling place in said precinct during the entire time the election board thereof was in session? — A. Yes, sir. Q. Asking you to examine contestee's Exhibit No. 7, which the preceding witness has just testified was placed in one of the boxes by the .election board and placed in your charge, I will ask you to state what was done by you with CARNEY VS. MORGAN. * 133 that box after it was placed in your possession. — ^A. I kept it in the same room that night. The next morning I brought it to Watonga and placed it in the hands of the county election board. Cross-examination by Mr. Emeby : Q. Did any of the negroes vote in your precinct? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and improper cross-examination. A. Yes, sir. Q. Do you know the number? Mr. Morgan. Same objection as last above stated. A. No, sir. Q. Did you give them the test as to whether or not they were able to read and write? Mr. Morgan. Same objection as last above stated. A. Those that I was in doubt of I did. Q. Did any negro vote who was not able to read and write? Mr. Morgan. Same objection as last above stated. A. Not that I know of. Q. Did you know or hear of this letter of Boardman's before the close of the polls on the day of the election? Mr. Morgan. Same objection as last above stated. A. I believe I did. Q. What effect, if any, did this letter have on yourself and the election board in reference to the enforcement of the grandfather clause? Mr. Morgan. Objected to for the reasons last above stated and for the reason that it is not shown that the contestee herein, or anyone by or for him, com- posed, wrote, sent, or procured to be sent either the letter or circular referred to. A. Well, we talked it over. We were uneasy, but we done what we thought was right. (Comes now the contestee and moves to strike from the evidence the entire cross-examination of the witness for the reason that the same is incompetent, irrelevant, and immaterial, and improper cross-examination, and the same being an attempt on the part of the contestant to prove allegations and statements set out in contestant's notice of contest.) Henri'- Spreitzeb. Subscribed and sworn to before me this 27th day of February, 1913. [seal.] Theodore Graalman, Notary Public. My commission expires January 17, 1915. GEORGE H. BUTLER, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Q. State your name, your township in which you live, and your voting pre- cinct. — A. George H. Butler, Cedar Valley Township, precinct 6, Blaine County, State of Oklahoma. Q. Was there an election held in that precinct on the 5th day of November, 1912, at which the votes were cast for Congressman of the second district of the State of Oklahoma?— A. Yes, sir. Q. What, if any, official position did you hold in said precinct at said election on said day? — ^A. Inspector. Q. Were you present at the polling place in said precinct during the entire time the election board was in session on said day? — ^A. Yes, sir. Q. Was the board duly organized according to law in said precinct on said day? — A. Yes, sir. Q. Who acted as counters in said precinct at said election? — A. A. C. Sherod, S. L. Clark, H. H. Goerke, and Claude Barnes. Q. Who acted as clerk and judge at said election?— A. E. T. Davis as clerk and Tom Barnes as judge. Mr. Davis was judge, but acted as clerk by consent of the board. Q. Calling your attention to Contestee' s Exhibit 3, I will ask you to state what that is? — A. It is the certificate of the vote on the State ticket. Q, Were you present when that certificate was made out? — ^A. Yes, sir. Q. Are you acquainted with the signatures of the counters at the bottom thereof? — A. Yes, sir. Q. Are those the signatures of the parties whose names appear there? — ^A. Yes, sir. 134 CAKNEY VS. MOEGAN. Q. That is your signature at the bottom there, is it not? — A. Yes, sir. Q. This certificate was made out from the tally sheets prepared by \he counters, was it? — A. The totals were copied from the ofiicial certificate of vote. Q. When you say ofiicial certificate of vote, you mean the instrument or paper which you have just taken from your pocket? — ^A. Yes, sir. Q. What is this instrument that you have just taken from your pocket? — A. Certificate of vote. Q. It being kept by you as one of the official copies of the certificate of vote?^ A. Yes, sir. Q. And the totals of the votes cast for the State officers was copied upon it from the tally sheets, was it not? — A. Yes. sir. Q. I will now ask you to examine the instrument which you have taken from your pocket and compare it with Contestee's Exhibit .3 and state whether or not the totals of the votes cast for the various candidates on the State ticket are the same in the Exhibit 3 as they are upon the certificate that you have taken from your pocket. — A. They are the same. Q. Contestee's Exhibit 3 is one of the ofiicial returns, is it not? — A. Yes, sir. Q. You were present when it was being made out, were you? — ^A. Yes, sir. Q. After it was made out what was done with, it? — A. It was put in the envelope and placed in one of the boxes. Q. Was the envelope in which it was placed sealed, and the names of two members of the election board written across the fiap? — A. Yes, sir. Q. Was the box then locked? — A. The box was locked by the clerk and judge. Q. What was then done with the box? — A. I took charge of the box, and brought it on here to Watonga the next morning. Q. To whom? — ^A. To the county election board. Q. I will ask you if the instrument marked "Contestee's Exhibit 3" is in all respects in the same condition now as it was when signed by you and placed in the ballot box? — A. As far as I can see, it is. Q. Do you notice any changes, alterations, or erasures thereon? — A. No, sir. Q. While this box was in your possession, was any opportunity given to any- one to change or alter the certificate marked " Contestee's Exhibit 3"? — A. No, sir. Q. Please examine Contestee's Exhibit 3 and state what is shown thereby as to the votes east in said precinct for John ,1. Carney and Dick T. Morgan, re- spectively ?— A. J. J. Carney. 30; Dick T. Morgan, 39. Geo. H. Butxeb. Subscribed and sworn to before me this 27th day of February, 1913. [SPJAL.] Theodoee Gbaalman, Notary PuMic. My commission expires January 17, 1915. Contestee's Exhibit 3. Certificate of vote. We, the undersigned ofiicial counters for the election held at precinct No. 6, of Cedar Valley Township, of Blaine County, on Tuesday, the 5th day of Novem- ber, A. D. 1912, hereby certify that the correct number of vo'es cast at said precinct in said election for the various candidates nnd for and against State questions Nos. 40 and 45, voted on, is herein set forth in written words : For corporation commissioner : J. E. Love, Democrat — 32 P. J. Loewen. Republican 33 C. E. Hedgpeth, Socialist 24 For presidential electors. State at large: Robert A. Baird. Democrat 31 J. W. Bolen, Democrat 30 H. H. Brenner. Democrat '. 29 Joseph W. Foster, Democrat 30 W. W. Hastings, Democrat 31 Sam Massingale, Democi'at 31 S. H. Mayes. Democrat 30 David Ratner. Democrat 30 J. D. Scott, Democrat 31 J. C. Thompson, Democrat 2& CARNEY VS. MORGAN. 135 For presidential electors. State at large — Continued. George M. Flick, Eepublican 35 Marshall W. Hincli, Republican 36 M. P. Howser, Republican 36 H. L. Hix, Republican 36 Lindsey L. Long, Republican 36 W. L. McWilliams, Republican 35 Ret Millard. Republican 37 George E. Nickel, Republican 36 Joseph G. Ralls, Republican 37 W. A. Williams. Republican 38 E. B. Barnes, Socialist 26 C. B. Boylan, Socialist 26 A. R. Bradshaw, Socialist 26 W. H. Davis, Socialist 26 R. E. Dooley, Socialist 26 Allen Fields, Socialist 26 Lewis B. Irvin, Socialist 26 I. N. Johnson, Socialist 26 A. W. Renshaw, Socialist 26 Thomas W. Woodrow, Socialist 26 M. Simpson Allen, Prohibitionist ! 1 J. E. Brewer, Prohibitionist 1 Charles Brown, Prohibitionist 1 S. H. Brown. Prohibitionist 1 Taylor H. Ebersole, Prohibitionist ; :_ 1 G. M. Hadduck, Prohibitionist 1 Charles O. Jennings, Prohibitionist 1 J. H. Medaris, Prohibitionist , '. 1 G. E. Rouch, Prohibitionist 1 H. E. Strickler, Prohibitionist 1 For United States Senator : Robert L. Qwen, Democi'at 34 J. T. Dickersou. Republican 34 John G. Wills, Socialist 24 For Congressman, State at large: Wm. H. Murray, Democrat 35 Joe B. Thompson, Democrat 33 Claude Weaver, Democrat 3g Alviu D. Allen, Republican 34 Jas. L. Brown, Republican 33 Emory D. Brownlee, Republican 35 Oscar Ameringer, Socialist 24 J. T. Cumbie, Socialist 25 J. Luther Langston. Socialist 24 For justice supreme court, first district : John B. Turner, Democrat : 31 Charles Alston Cook, Republican 3S For judge criminal court appeals, southern district : Henry M. Purman, Democrat , 29) George T. Ralls, Republican ^ 35 E. S. Hurt, Socialist 1 2S For Representative in Congress — District : Dick T. Morgan 39- J. J. Carney 30 P. D. McKinsie 21 For State senator — district : E. J. Warner 36. M. B. Carley 2S S. H. Hendrickson 25 For representative : W. R. Kelly 22 George Jameson 39. John T. Long ,__ 32 State question No. 40, Initiative Petition No. 25 : Shall it be adopted — Yes 1 36 No 31 136 CAENEY VS. MOEGAN. State question No. 45, Referendum Petition No. 17: Shall the proposed amendment be adopted — Yes 15 No - 50 We further certify that there was one spoiled ballot, the number of which was No. 51, and there were 166 unused ballots, the consecutive numbers of which were from and including No. 100 to and including No. 266. h. h. goerke, Claud G. Baenes, S. L. Clark, A. C. Sherod, Official Counters. Subscribed and sworn to before me this the 5th day of November, A. D. 1912. Geo. H. Btjtleb, This oath may be administered by the judge, clerk, or inspector. State of Oklahoma, Blaine County, ss.: I. Theodore Graalman, notary public, in and for Blaine County, State of Olflahoma, do hereby certify that the foregoing is a true, correct, complete, and entire copy of the Exhibit 3 introduced in evidence by the contestee in the taking of depositions or evidence before me in the case now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. [SEAL.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. J. A. DUNN, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Mr. Emery. Just state, in reference to the enforcement of the grandfather clause in your pi-ecinct, and what effect, if any, Mr. Boardman's letter had upon your election board in reference thereto? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial. A. It kept them from putting the test as strong as they would. I didn't put any of them to test at all writing. Tested them in reading. I didn't let none vote who couldn't read. They was one went in and voted that I couldn't tell whether he could read or not. I stepped around the corner to " wet," and he got his ballot while I was gone. Direct examination by Mr. Morgan : Q. State your name, the township in which you live, and your voting pre- cinct. — A. J. A. Dunn. Logan Township, precinct No. 12. Q. Was there an election held in that voting precinct on the 5th day of November, 1912? — A. Yes, sir. Q. At that election were there votes cast for the candidates for Congressmen from the second district of the State of Oklahoma? — A. Yes, sir. Q. Were you present during the entire time that the board was in session on that day?— A. All of the time except the time above stated. Q. Was the election board in that precinct on that day duly organized? — A. Yes. sir. Q. Who acted as counters at that election? — A. J. F. Irving, R. M. Scott. Evan C. Coyle, and Andy T. Anderson. Q. Who acted as clerk and judge of the election board of that precinct on that day? — A. C. E. Albion, clerk; Fred Strong, judge. Q. Calling your attention to Contestee's Exhibit 11, I will ask you what that is? — A. Certificate of vote on State ballot. Q. Were you present when this certificate of vote was prepared? — A. Yes, sir. ' Q. From what were the totals of the vote taken, as shown by this certifi- cate? — A. From the tally sheets prepared by the counters. Q. You were present when this sheet was being made up, were you? — A. Yes, sir. Q. Did you see the gentlemen sign this — the counters?— A. Yes, sir. Q. And "those signatures at the bottom are the signatures of the counters and the clerk who acted as such at said election, are they? — A. Yes, sir. CAEN"EY VS. MOEGAN. 137 Q. After this certificate was prepared and signed, what was done with it? — A. Put in the ballot box. Q. Was it first placed in an envelope and sealed and the names of two mem- bers of the election board written across the flap thereof? — A. Yes, sir. Q. Was the ballot box then locked? — A. Yes. sir. Q. What was then done with it? — A. Brought to Watonga. Q. When did you bring it to Watonga? — A. It was somewheres about 11 o'clock that night. Q. After the box was locked and up to the time that you turned it over to the election board of Blaine County, if you did so, was there any opportunity given to change, alter, or mutilate this certificate? — A. No, sir. Q. You delivered the box to the county election board, did you?— A. No, not that night; they were closed and I delivered it to them the next morning. Q. Was this box in your possession all that night? — ^A. Yes, sir. Q. Was any opportunity given to anyone to change or alter this certificate during the time that it was in your possession? — A. No, sir. Q. Please examine the certificate as best you can and state whether or not it is in the same condition now as it was when it was placed in the envelope by the precinct election board. — ^A. To the best of my knowledge it is. Q. You don't see any changes or alterations thereon? — A. No, sir. (Contestee now offers in evidence Contestee's Exhibit 11 and asks that a true, cori-ect, and complete copy thereof be attached to the deposition of this witness.) Contestee now moves to strike from the evidence of this witness the ques- tions propounded to the witness by Mr. Emery and the answers tliereto for the reason that the same is incompetent, irrelevant, and immaterial.) J. A. Dunn. Subscribed and sworn to before me this 27th day of February, 1913. [seal.] Theodore Graalman, 'Notary Public. My commission expires January 17, 1915. Contestee's Exhibit 11. Certificate of vote. We, the undersigned ofiicial counters for the election held at precinct No. 12, of Logan Township, of Blaine County, on Tuesday, the 5th day of November, A. D. 1912. hereby certify tliat the correct number of votes cast at said precinct in said election for the various candidates and for and against State Questions Nos. 40 and 45 voted on is herein set forth in written words. For corporation commissioner: J. E. Love. Democrat, forty-five. P. J. Loewen. Republican, eighty-three. C. E. Hedgpeth, Socialist, thirty. For presidential electors State-at-large: Robert A. Baird, Democrat, forty-five. J. Wt Bolen, Democrat, forty-five. H. H. Brenner, Democrat, forty-six. Joseph W. Foster, Democrat, forty-six. W. W. Hastings. Democrat, forty-six. Sam Massingale, Democrat, forty-six. S. H. Mayes, Democrat, forty-six. David Eatner, Democrat, forty-eight. J. D. Scott, Democrat, forty-eight. J. C. Thompson, Democrat, forty-six. Geo. M. Flick, Republican, eighty-eight. Marshall W. Hinch, Republican, eighty-eight. M. P. Howser, Republican, eighty-eiglit. H. L. Hix, Republican, eighty-seven. Lindsey L. Long, Republican, eighty-eight. W. L. McWilliams. Republican, eighty-eight. Ret Millard, Republican, eighty-eight. George E. Nickel, Republican, eighty-seven. Joseph G. Ralls, Republican, eighty-seven. W. A. Williams, Republican, eighty-seven. E. B. Barnes, Socialist, thirty. C. B. Boylan, Socialist, twenty-nine. 138 CARNEY VS. MORGAI^. For presidential electors, State-at-large — Continued. A. R. Bradshaw, Socialist, twenty-nine. W. H. Davis, Socialist, twenty-nine. R. E. Dooley, Socialist, twenty-nine. Allen Fields, Socialist, twenty-nine. Lewis B. Irviu, Socialist, twenty-niui-. I. N. Johnson, Socialist, twenty-nine. A. W. Renshaw. Socialist, twenty-nine. Thomas W. Woodrow, Socialist, twenty-nine. M. Simpson Allen, Prohibition, six. J. E. Brewer, Prohibition, six. Chas. Brown, Prohibition, six. S. H. Brown, Prohibition, six. Taylor H. Ebersole, Prohibition, six. G. M. Pladdnck, Prohibition, six. Chas. O. Jennings, Prohibition, six. J. H. Medaris, Prohibition, six. G. E. Ronch, Prohibition, six. H. E. Strickler, Prohibition, six. For United States Senator: Robert L. Owen, Democrat, forty-eight. J. T. Dickerson, Republican, eighty-two. John G. Wills, Socialist, twenty-nine. For Congressman, State at large: William H. Murray, Democrat, forty-seven. Joe B. Thompson, Democrat, forty-six. Claude Weaver, Democrat, forty-six. Alvin D. Allen, Republican, eighty-two. James L. Brown, Republican, eighty-one. Emory D. Brownlee, Republican, eighty. Oscar Ameringer, Socialist, thirty. J. T. Cumbie, Socialist, thirty-one. J. Luther Langston, Socio list, thirty-one. For justice supreme court, first district : John B. Turner, Democrat, forty-seven. Charles Alston Cook, Republican, eight-one. For judge criminal court of appeals, southern district: Henry M. Furman, Democrat, forty-five. George T. Ralls, Republican, eighty-two. E. S. Hurt, Socialist, twenty-nine. For Representative in Congress, district: J. J. Carney, Democrat, fifty- two. Dick T. Morgan, eighty. T. D. McKinzie, twenty-nine. For State senator, district: M. B. Corley, forty-six. E. J. Warner, eighty-two. S. H. Hendrickson, thirty. For Representative: W. R. Kelley, fifty. George Jamison, seventy-five. J. F. Long, thirty-six. State question No. 40, initiative petition No. 25 : Shall it be adopted?— Yes, thirty-two. No, ninety-one. State question No. 45. referendum petition No. 17 : Shall the proposed amendment be adopted? — Yes, thirty-two (32). No, nineteen (19). We further certify that there was 1 spoiled ballot, the number of which was No. 12, and there were 174 unused ballots, the consecutive numbers of which were from and including No. 92 to and including No. 266. Bnos Williams, Martin Gigeb, E. Keeley, John O. Funk, Official Counters. CARNEY VS. MORGAN. * 1B9 Subscribed and sworn to before me tbis the 5th day of November. A. D. 1912. Henry Spreitzer. This oath may be administered by the judge, clerii, or inspector. State of Oklahoma, Blaine County, ss: I, Theodore Graalman, notary public in and for Blaine County, State of Oklahoma, do hereby certify that the foregoing is a true, correct, complete, and entire copy of the Exhibit 11 introduced in evidence by the contestee in the tak- ing of depositions or evidence before me in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is contestee. [SEAL.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. W. E. THOMPSON, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Q. State your name, the township in which you live, and the voting precinct in which you live. — A. W. E. Thompson, Lincoln Township, precinct No. 10. Q. Was there a general election held in that precinct on the 5th day of No- vember, 1912? — A. Yes, sir. Q. What, if any, official position did you occupy or hold in said precinct on said day in this said election? — A. Judge. Q. Were you present on that day at the polling place in said precinct during all the time that voting was going on and during the time of the counting of the ballots cast therein and the making out of the returns? — A. Yes, sir. Q. Was the election board of said precinct duly organized the morning of the election? — A. Yes, sir. Q. Who acted as cou.nters in said precinct at said election? — A. Archie Baker, Clive Richmond, Roy Snyder, and Clyde Hantz. Q. Who acted as inspector and clerk in said election and in said precinct? — A. A. L. Ennen as inspector. J. S. Cooper as clerk. Q. Did these counters count the ballots cast on that day for candidates for the second district of the State of Oklahoma? — A. Yes, sir. Q. I Will ask you to examine contestee's Exhibit No. 9 and ask you to state what it is. — A. It is a certificate of vote of Lincoln Township, precinct No. 10, Blaine County, State of Oklahoma. Q. I \^^ll ask you to examine the signatures at the bottom of contestee's exhibit and state whether or not you saw the counters sign their names thereto. — A. Yes, sir. Q. Is that your signature at the bottom of the sheet? — A. Yes, sir. Q. Calling your attention to the statement of the votes cast as shown on said exhibit, I will ask you from what these totals were taken? — A. Taken from the tally sheets. Q. Prepared by the counters? — A. Yes, sir. Q. After this certificate was signed, what was done with it? — A. As near as I can remember, it was placed in the envelope marked " Returns.'* It was sealed and the .judge's and clerk's names written across the flap of the envelope and placed in the ballot box and locked. Q. What was then done with the box in which this envelope was placed? — A. The inspector took charge of it. Q. Asking you to examine Contestee's Exhibit No. 9, I wlH ask you if it is in the same condition now as it was when it was placed in the envelope? — A. I dont see any changes. I think it looks the same. Q. Do you see any erasures or alterations thereon? — A. No, sir. (Contestee now asks that a true, complete, and correct copy of said Exhibit 9 be attached to the deposition of this witness and that the same be made a part hereof. ) W. E. Thompson. Subscribed and sworn to before me this 27th day of February, 1913. [seal.] Theodore Graalman, Notary Public. My commission expires January 17, 1915. 140 CAKFEY VS. MOEGAN. Contestee's Exhibit 9. Certificate of vote. We, the undersigned official counters for the election held at precinct No. 10 of Lincoln Township of Blaine County, on Tuesday, the 5th day of November, A. D. 1012, hereby certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against said State Ques- tions Nos. 40 and 45 voted on, is herein set forth in vi^ritten words. For corporation commissioner: J. E. Love, Democrat 48 P. J. Loewen, Republican 38 C. E. Hedgpeth, Socialist 49 For Presidential electors, State at large: Robert A. Baird, Democrat 47 J. W. Bolen, Democrat 47 H. H. Brenner, Democrat 47 Joseph W. Foster, Democrat 47 W. W Hastings, Democrat 47 Sam Massingale, Democrat 47 S. H. Mayes, Democrat 47 David Ratner, Democrat 48 J. D. Scott, Democrat 47 J. C. Thompson, Democrat 47 George M. Flick 40 Marshall W. Hinch, Republican 40 M. P. Ilowser, Republican 39 H. L. Hix, Republican 39 Lindsey L. Long, Republican 39 W. L. McWilliams, Republican 39 Ret Millard, Republican 39 George E. Nickel. Republican 39 Joseph G. Ralls, Republican 39 W. A. Williams, Republican 39 E. B. Barnes, Socialist 48 C. B. Boylan, Socialist 47 A. R. Bradshaw, Socialist 47 W. H. Davis, Socialist 47 R. E. Dooley, Socialist 48 Allen Fields, Socialist 47 Lewis B. Irvin, Socialist 47 I. N. Johnson, Socialist 47 A. W. Renshaw, Socialist 47 Thos. W. Woodrow, Socialist 48 M. Simpson Allen, Prohibition , J. E. Brewer, Prohibtion Ohas. Brown, Prohibition S. H. Brown, Prohibition Taylor H. Ebersole, Prohibition G. M. Hadduck, Prohibition Chas. O. Jennings, Prohibition J. H. Medaris, Prohibition G. E. Rouch, Prohibition H. E. Strickler, Prohibition For United States Senator: Robt. L. Owen, Democrat 49 J. T. Dickerson, Republican 37 John G. Wills, Socialist -, 48 For Congressman, State at large : Wm. H. Murray, Democrat 47 Joe B. Thompson, Democrat - 48 Claude Weaver, Democrat 48 Alvin D. Allen, Republican 39 Jas. L. Brown, Republican 37 Emory D. Brownlee, Republican 42 Oscar Ameringer, Socialist 48 J. T. Cumbie, Socialist 49 J. Luther Langston, Socialist 49 CARNEY VS. MORGAN. 141 For justice, supreme court, first district: Jolin B. Turner, Democrat 47 Charles Alston Cook. Republican 37 For judge, criminal court appeals, southern district : Henry M. Furman, Democrat 47 George T. Ralls. Republican 37 E. S. Hurt, Socialist 50 For Representative in Congress, second district: J. J. Carney. Democrat 45 Dick T. Morgan, Republican 39 P. D. McKinzie, Socialist 49 For State senator, sixteenth district: M. B. Carley, Democrat 43 E. J. Warner, Republican 43 S. H. Hendrickson, Socialist , 49 For representative : W. R. Kelley, Democrat :. 26 Geo. Jamison, Republican 39 John T. Long, Socialist 71 State question No. 40, initiative petition No. 25 : Shall it be adopted? Yes 22 No , 75 State question No. 45, referendum petition No. 17 : Shall the proposed amendment be adopted? Yes - 52 No i 39 We further certify that there vpere no spoiled ballots, and there were 127 unused ballots, the consecutive numbers of which were from and including No. ]39 to and including No. 266. Akchie Bakek, Clive Reichman, Clyde P. Hantz, R. H. Snyder, Official Counters. Subscribed and sworn to before me this the 5th day of November, A. D. 1912. W. E. Thompson. This oath may be administered by tlie judge, clerk, or inspector. State of Okahoma, Blaine County, ss: I. Theodore Gmalman, notary public, in and for Blaine County, State of Oklahoma, do hereby certify that the foregoing is a true, correct, complete, and entire copy of the Exhibit 9 introduced in evidence by the contestee in the taking of depositions or evidence before me in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Theodore Graalman, l^otary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. A. L. ENNEN, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies: Direct examination by Mr. Morgan : Q. State your name, township, and voting precinct in which you live. — ^A. A. L. Ennen ; Lincoln Township ; precinct No. 10, Blaine County, State of Okla- homa. Q. What, if any, ofiicial position did you hold at the general election held November 5. 1912, in said precinct? — A. Inspector. Q. State what you did with the box containing the envelope which in turn contained the certificate of vote marked " Contestee's Exhibit No. 9 " after it was placed in your possession on the evening of November 5, 1912. — A. I took it home, kept it there over night, took it to Watonga the next morning, and turned it over to the county election board. 142 . CARNF-Y VS. MORGAlSr. Q. While it was in your possession was tliis box unloclved? — A. No, sir. Q. While it was in your possession was there any opportunity given for this ■certificate of vote to be changed or altered in any way? — A. No, sir. A. L. Ennen. Subscribed and sworn to before me this 27th day of February, 1913. [SEAL.] Theodore Graalman. Notary PuUic. My commission expires January 17, 1915. C. E. ALBIN. being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Direct examination by Mr. Morgan : Q. State your name and the township and voting precinct in which you live. — A. C. E. Albin; Logan Township; precinct No. 12, Blaine County, State of Okla- homa. Q. Was there an election held in said precinct on the 5th day of November, 1912?— A. There was. Q. Were candidates for election as Congressmen from the second district of the State of Oklahoma voted for in said precinct on said day? — ^A. Yes, sir. Q. What, if any, official position did you hold in said precinct on said day? — A. Clerk. Q. Calling your attention to Contestee's Exhibit 11, I will ask you to state what it is. — .A. Certificate of vote of said precinct Q. Did you see this certificate made out? — A. Yes, sir. Q. Is this your signature at the bottom thereof? — ^A. Yes, sir. Q. Asking you to examine this Exhibit No. 11, I will ask you if it is in the -same condition now as when you signed it on the night of the election? — ^A. Yes, sir. Q. Did you see the counters sign their names to said certificate? — A. Yes, sir. C. B. Albin. Subscribed and sworn to before me this 27th day of February, 1913. [SEAL.] Theodore Graalman, Notary Public. My commission expires January 17, 1915. R. I. TEMPLE, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Direct examination by Mr. Morgan : G. State your name, the township and voting precinct, county and State in which you live. — A. R. I. Temple, Watonga Township, precinct No. 20, Blaine County, State of Oklahoma. Q. Was there an election held in said voting precinct on said day at which votes were cast for Congressmen in the second district of the State of Okla- homa? — A. Yes. Q. What, if any, official position did you hold on that day in said precinct? — A. Inspector of election. Q. Were you present at the polling place all of that day up to the time the election board ad.iourned? — A. Yes. Q. Was the election board duly organized that morning before receiving bal- lots?— A. Yes. Q. Who acted as counters in s;iid precinct at said election? — A. W. J. Wells, G. W. Grote. R A. Burford, and J. W. Winn. Q. Who acted as clerk and .judge at said election? — A. C. E. Harriott acted «s clerk and William Hagan as .judge. Q. Calling your attention to Contestee's Exhibit No. 2. I will ask you to state what that is? — ^A. Certificate of the vote cast at said election. Q. For State oflicers? — ^A. For State officers and State questions. Q. Were you present when that sheet was made out? — A. Yes. Q. Calling your attention to the signatures at the bottom, I will ask you if those are the signatures of the counters? — A. They are. Q. Is that your signature at the bottom of the sheet? — A. It is. Q. After this sheet was made out and signed, what was done with it? — A. My recollection is that we were to have three copies of this, one to be turned over to the county election board, one to be locked in the ballot box with the returns and one to be kept by the inspector. Just which one this is I don't know. CARNEY VS. MORGAN. 143 Q. Stating to you that this sheet was brought here by E. R. Taylor, clerk of the district court, iu this county, and that he has heretofore testified that he took it from the ballot box of precinct No. 20, Watonga Township, I now ask you what was done with this sheet after it was signed? Mr. Emery. Objected to as leading, suggestive, question being in the nature of the statement of a fact not testified to by the witness. A. Well, it among others, was put in an envelope market! " Returns." My recollection is that it was securely sealed and stamped, according to law. Q. What was then done with the envelope in which this sheet was placed? — A. It was placed in the ballot box and locked up. Q. What was then done with the box in which the envelope was placed? A. It was turned over to the county election board. Q. Who had charge of this between the time the box was locked and the time it was placed iu the hands of the county election board? — A. I did. Q. Was there any opportunity given during the time that this box was in your possession to change or alter Contestee's Exhibit No. 2? — A. There was not. Q. Asking you to examine Contestee's Exhibit No. 2, I will ask you if it is in the same condition now that it was when it was signed by the counters and yourself? — A. I think so, except the identifying marks. Q. Do you notice any marks of alteration or change thereon? — A. No. (Contestee now offers in evidence Contestee's Exhibit No. 2, and asks that a true, correct, and complete copy thereof be attached to the deposition of this witness. ) Mr. Emeey. Objected to as incompetent, irrelevant, and not identified, proven, or authenticated. Cross-examination by Mr. Emery : Q. Mr. Temple, did any negroes vote in your precinct? Mr. Morgan. Objected to as irrelevant, incompetent, and immaterial, and Improper cross-examination. A. Yes, sir. Q. How many? Mr. Morgan. Same objection as last above stated. A. I do not know for sure. Q. Give your best judgment. — A. Probably 20 or 25. Q. Out of this numbei- how many did you apply the test to concerning their qualifications under the State laws? — A. To all but two. Q. Just state whether or not tliese two were able to read and write. Mr. Morgan. Objected to as irrelevant, incompetent, and immaterial, and improper cross-examination. A. Think they were. Q. Are you acquainted with H. N. Boardman? Mr. Morgan. Objected to as irrelevant, incompetent, and immaterial, and improper cross-examination. A. Yes. Q. Did you see those letfers and an article entitled " Talk it over with your wife," the letter being signed by Mr. Boardman as United States district attorney ? Mr. Morgan. Objected to as being incompetent, irrelevant, and immaterial, and improper cross-examination. A. I saw the article and a circular letter purporting to be signed by Boardman. Q. Do you remember to whom this letter was directed? Mr. Morgan. Objection, for the reason last above stated. A. My impression now is that it was addressed to the election ofliicials, but I am not positive. Q. I hand the witness Exhibit B, attached to the contestant's notice and grounds of contest, and ask the witness to examine it and state whether or not that Exhibit B purports to be a copy of the circular letter. Mr. Morgan. Objection for the reason that the same is incompetent, irrele- vant, and immaterial, and improper cross-examination, and for the reason that it has not been shown that the contestee, nr any one for or in his behalf, wrote, had printed, or sent out a letter marked " Exhibit B " attached to contestant's notice of contest. A. Yes ; it does. 144 CARNEY VS. MORGAN. Q. Is It the common understanding among the people of this county, and particularly among those who know Mr. Boardman, that he received his ap- pointment as United States district attorney through the influence of Dick T. Morgan ? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and as calling for a conclusion and understanding of the witness and is incompetent, irrelevant, and immaterial. A. I think so. Q. What part, if any, did Mr. Boardman take in the campaign of Mr. Morgan for Congress in the year 1910, if you know? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and improper cross-examination. A. I think he was his campaign manager. Q. Prior to the election of 1912 how long had you been the inspector of your precinct? — A. Only a day or two — three or four days, you might say. Q. What became of the man who had been serving as inspector, or why was it he did not serve in the election? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and improper cross-examination. A. The inspector's name was W. A. Stevenson, and he resigned as inspector on account of being afraid to enforce the grandfather law, so he told me. Q. What was the cause of his fear, if you know? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and improper cross-examination. A. He told me that he was afraid of prosecution at the hands of the Federal authorities. ' Q. Do you know of any other inspectors who resigned for the same reason a few days before the election? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and improper cross-examination. A. Yes. Q. Just name some of them. Mr. Morgan. Objected to for the reason last above stated. A. R. J. Smack, Jack Worrell, J. H. Ruckman. Q. What position did you occupy in the campaign, and how did you come into possession of this knowledge, and what efforts were made, if you know, to get men to serve as inspectors? Mr. Morgan. Objected to for the reason last above stated. A. I was Democratic State committeeman. On that account was making inquiries about how the various inspectors stood on the grandfather law. In the precincts round about Watonga the election officials had much difficulty in getting anyone to serve as inspector. Same is true in East Lincoln. Q. Now, Mr. Temple, just state, if you know, what men had been requested to serve as inspector and who refused for fear of a Federal prosecution on account of this circular letter of Boardman's? Mr. Morgan. Objected to as incompetent, irrelevaat, and immaterial, as im- proper cross-examination, and as an effort on the part of the contestant to prove statements and allegations contained in the contestant's notice of contest after the time allowed by law for taking testimony by the contestant has expired. A. E. L. Ashford, J. H. Temple, C. P. Temple, in precinct No. 20; Walter Ferguson, in the west precinct of Watonga. Q. To these inspectors who refused to serve and resigned and these men who refused to accept the appointment as inspectors, was the prosecutions of Beall and Quinn generally known? Mr. Morgan. Objected to for the reasons last stated above. A. I think so. Q. As the inspector in your precinct, did you allow or permit any negro to vote that otherwise you would not if you had not received or known of these threats of the Federal prosecution? Mr. Morgan. Objected to for reason that it assumes a state of facts not proven, incompetent, irrelevant, and immaterial, and improper cross-examination, and as constituting an attempt and effort on the part of the contestant to prove statements and allegations contained in contestant's notice of contest after the time allowed for his taking of proof has expired, and as calling for a conclusion of the witness. A. Yes; there were some negroes voted whom I would not have permitted to vote had I been sure there would be no Federal prosecution. CAEISTEY VS. MOEGAN. 146 Q. State, if you know, if your answer is true with reference to otlier precinct* in this county. Mr. Morgan. Objected to for the reason that the same is incompetent, irrele- vant, and immaterial, and improper cross-examination, and being an effort on the part of the contestant to prove statements and allegations contained in con- testant's notice of contest, upon cross-examination, and after the time allowed by law for contestant to tnke testimony in support of the statements and allega- tions in his notice of contest. A. It is my opinion that all inspectors were more or less intimidated by threats of Federal prosecution. (Comes now the contestee and moves to strike the answer of the witness as being an opinion and conclusion of the witness. Comes now the contestee and moves to strike the entire cross-examination of this witness for the reason that the same is incompetent, irrelevant, and immaterial, and impropr cross- examination, and as being an effort on the part of the contestant to prove statements and allegations contained in the contestant's notice of contest, upoij cross-examination, and after the time allowed by law for taking testimony in support of the statements and allegations contained in contestant's notice of contest has expired. The original answer served on the said contestant, show- ing the said answer was served upon him on January 13, 1913, and more thim 40 days having now expired since said answer was so served.) R. I. Templ^. Subscribed and sworn to before me this 27th day of February, 1913. [seal.] Theodore Geaalman. My commission expires January 17, 1915. Contestee's Exhibit 2. Certificate of vote. We, the undersigned official counters for the election held at precinct No. 20 of Watonga Township of Elaine County on Tuesday, the 5th day of November, A. D. 1912, hereby certify that the correct number of votes cast at said precinct in said election for the various candidates and for and against State questions Nos. 40 and 45 voted on is herein set forth in written words : For corporation commissioner: J. E. Love, Democrat, fifty-flve (55). P. J. Lowen, Republican, seventy-nine (79). C. E. HedgiDeth, Socialist, twenty-two (22). For presidenti;;! electors. State at large: Robert A. Baird, Democr;it, fiftj^-six (56). J. W. Bolen, Democrat fifty-two (52). H. H. Brenner, Democrat, fifty-two (52). Joseph W. Foster, fifty-four (54). W. W. Hastings, Democrat, fifty-four (54). Sam Mnssingale, Democrat, fifty-four (54). S. H. Mayes, Democrat, fifty-four (54). David Ratner. Democrat, fiftv-four (54). J. D. Scott, Democrat, fifty-five (55). J. C. Thompson, Democrat, fifty-four (54). George M. Flick, Republicim, eighty-four (84). Marshall W. Hinch, Republican, eighty-four (84). M. P. Howser, Republican, eightj^-four (84). H. L. Dix, Republican, eighty-four (84). Lindsey L. Long, Republican, eighty-two (82). W. L. McWillifims, Republican, eighty-four (84). Ret Millard, Republican, eighty-three (83). George E. Nickel Republican, eighty-three (83). Joseph G. R'lls, Republican, e'ghty-two (82). W. A. Williiuns, eighty-two (82). E. B. Barnes, Socialist, twenty-three (23). C. B. Boylan, Socialist, twenty-two (22). A. R. Bradshaw, Socialist, twenty-two (22). W. H. Davis, Socialist, twenty-two (22). R. E. Dooley, Socialist, twenty-two (22). Allen Fields, Socialist,, twenty-one (21). 4252—13 10 146 CARNEY VS. MORGAN. For presidential electors, State at large — Contiaued. Lewis B. Irviu, Socialist, twenty-two (22). I. N. Johnson, Socialist, twenty-two (22). ; A. W. Renshaw, Socialist, twenty-two (22). Thos. W. Woodrow, Socialist, twenty-two (22). ! M. Simpson A4,len, Prohibition, one (1). J. E. Brewer, Prohibition, one (1). Chas. Brown, Prohibition, one (1). - S. H. Brown, Prohibition, one (1). Taylor H. Ebersole, Prohibition, one (1). G. M. Hadduck, Prohibition, one (1). Chas. O. Jennings, one (1). J. H. Medaris, Prohibition, one (1). G. E. Rouch, Prohibition, one (1). H. E. Stri elder. Prohibition, one (1). For United States Senator : i Robt. L. Owen, Democrat, fifty-seven (57). J. T. Dickerson, Republican, eighty-four (84). John G. Wills, Socialist, twenty-four (24). For Congressman, State at large: Wm. H. Murray, Democrat. Fifty-four (54). Joe B. Thompson, Democrat, fifty-one (51). Claude Weaver, Democrat, fifty-four (54). Alvin D. Allen, Republican, seventy -nine (79). Jas. L. Brown, Republican, seventy-nine (79). Emory D. Brownlee, Republican, seventy-nine (79). Oscar Ameringei*, Socialist, twenty- three (23). J. T. Cumbie, Socialist, twenty-four (24). J. Luther Langston, Socialist, twenty-five (25). For justice supreme court, first district : ' John B. Turner, Democrat, fifty-three (53). Charles Alston Cook, Republican, seventy-nine (79). For judge criminal court appeals, southern district : Henry M. Furman, Democrat, fifty- three (53). George T. Ralls, Republican, seventy-five (75). E. S. Hurt, Socialist, twenty-two (22). For Representative in Congress, second district : J. J. Carney, forty-eight (48). Die': T. I^Ioi-pm. eighty-nine (89). P. D. McKenzie, twenty-two (22). For State senator, sixteenth district : M. B. Carley, fifty-two (52). E. J. Warner, ninety-nine (99). S. H. Hendricksou, twenty-two (22), For representative: W. R. Kelly, forty-six (46), Geo: Jamison, seventy-eight (78), John T, Long, thirty-five (35). State question No. 45, referendum petition No, 25 : Shall it be adopted? Yes, thirty-five (35). No, forty-five (45). State question No. 45. referendum petition No, 17 : Shall the proposed amendment be adopted? Yes, forty-one (41). No,, twenty -nine (29). We further certify that there were 2 spoiled ballots, the consecutive num- bers of which were Nos. 27 and 66, and there were 120 unused ballots, the consecutive numbers of which were from and including Nos, 181 to 300. G. W. Gkote, J. W. Winn, W. J. Wills, Ira Burford, Official counters. Subscribed and sworn to before me this the 5th day of November, A. D. 1912. R. I. Temple, Inspector. This oath may be administered by the judge, clerk, or inspector. CARNEY VS. MORGAIsr. 147 State of Oklahoma, Blaine County, ss.: I, Theodore Graalman, notary public, in and for Blaine County, State of Oklahoma, do hereby certify that the foregoing is a true, correct, complete, and entire copy, except that it does not include taljy marks thereon which correspond with the figures shown, of the Exhibit 2 introduced in evidence by the contestee in the taking of depositions or evidence before me in the cause now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Theodore Graalman, • Notary Public, Blaine County, OMa. My commission expires January 17, 1915. W. C. BROADY, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Q. State your name and residence. — A. Okeene. Okla. Q. What, if any, official position did you hold at the last general election, held on November 5, 1912? — A. Member of the county election board of Blaine County. State of Oklahoma. Q. When did the county election board of Blaine County, Okla., convene for the purpose of receiving returns of this election? — A. On the evening of the 5th of November, 1912. Q. Was there an election held in the following precincts, Blaine County, State of Oklahoma, where the voters of the several precincts voted for the various party candidates for Congressmen in the second congressional district of the State of Oklahoma, to wit: Arapaho Township, precinct 8; Watonga Township, precinct 20; Cedar Valley Township, precinct 6; East Dixon Town- ship, precinct 9 ; West Dixon Township, precinct 28 : Canton Township, pre- cinct 23 ; West Lincoln Township, precinct 10 ; Carlton Township, precinct 29 ; East Lincoln Township, precinct 30; Logan Township, precinct 12; and Flynn Township, precinct 13? — A. There was. Q. How late did the county election board remain in session on the night of November 5, 1912? — A. We were there until 10 oclock. Q. Where did the county election board meet? — A. We received the returns in the room that we have in the basement of the courthouse. Q. What are the names of the two other members of the county election board? — A. Dan Hogan. chairman, and Tom Mosley, secretary. Q. When did you next reconvene? — A. About 9 oclock on the 6th in the morning. Q. I will ask you if. while you were in session, either on the night of the oth or -the day of the 6th, whether you received the ballot boxes from Arapaho Township, precinct 8, Blaine County, Okla.? — A. Yes, sir. Q. From Watonga Township. ]:)recinct 20? — ^A. Yes, sir. Q. From Cedar Valley Township, precinct 6?— A. Yes, sir. Q. From East Dixon Township, precinct 9? — A. Yes, sir. Q. West Dixon Township, precinct 28? — A. Yes, sir. Q. Canton Township, precinct 23? — ^A. Yes. Q. West Lincoln Township, precinct 10? — A. Yes, sir. Q. Carlton Township, precinct 29? — ^A. Yes, sir. Q, East Lincoln Township, precinct 30?— A. Yes, sir. Q. Logan Township, precinct 12? — A. Yes. Q. And Flynn Township, precinct No. 13? — A. Yes, sir. Q. These voting precincts are all in Blaine Countey, State of Oklahoma, are they not? — A. Yes, sir. , , .^i • Q. And the boxes were all delivered to the county election board by the in- spector of each prechict. were they? — A. Yes, sir. Q What did the county election board do with resiiect to the returns from the election precincts above stated?— A. They tabulated the returns as they were brought in bv the inspectors — the certificates of votes. Q. You mean the tabulations were taken from the Exhibits 1 to 11, inclu- sive, heretofore introduced in evidence, or from copies thereof returned to the county election board by the various precinct boards?— A. Yes, sir. Q. When did you finish tabluating the votes cast for the candidates on the State ticket?— A. On the 7th of November, 1912. Q. You were still in session at that thne, were you?— A. Yes, sir. 148 CAENEY VS. MOEGA]Sr. Q. What time of the day on the 7th did you finish tabulating the above re- turns or certificates of votes'? — A. It was all finished, except Mr. Hogan sign- ing the State tally sheet, by 5 o'clock. Mr. Mosley had signed the same. Q. Was there any place on the State tally sheet for you to sign? — A. No, sir. Q. Was Mr. Hogan in the room vphere you were tabulating these returns at the time Mr. Mosley signed them? — A. Well, I don't remember. Q. The tabulated statement you made out and which you say was ready by 5 o'clock, except the signature thereof by Mr. Hogan, did it contain and show the returns from all of the precincts in Blaine County, State of Oklahoma? — A. Yes, sir; it did. Q. You are sure it contained the votes cast for candidates on the State ticket from the 11 precincts named above? — A. Yes, sir. Q. What occurred after this tabulated sheet had been prepared and signed by Mr. Mosley? — A. Mr. Mosley went to the typewriter, he addressed an enve- lope to the tSate election board at Oklahoma City and said to Mr. Hogan that he would like for him to sign up this evening, as we wanted to adjourn and get this business concluded, to which Mr. Hogan objected for the re.ison that we had not counted the mutilated ballots and I said that I hod never seen any record of there being any mutilated ballots. We went through the returns handed in by the inspectors and found no record of any mutilated ballots, but found a record of 29 spoiled ballots. Mr. Hogan also objected to signing the tabulated sheet to be sent to the State election board until he heard from Okla- homa City by telephone message. We adjourned and then I went home. The other members said they were going home and I also told them I was going home. Q. Did they say — either one of the other members of the election board — say anything to you about the work all being done and being through, except sign- ing up by Mr. Hogan? — A. Mr. Mosley did. Q. Did Mr. Mosley tell you from whom he was expecting a telephone mes- sage from Oklahoma City? — A. Said Mr. Hogan was expecting one from Mr. Gould, Mr. Carney's manager. Q. Do yovi know whether or not Mr. Hogan had been telephoning to Mr, Gould before that time? — A. He had been phoning to Oklahoma City, but I could not say whether or not he had talked with Mr. Gould. Q. Did you go home on the evening of the 7th? — ^A. Yes, sir. Q. When next did you return to Wa tonga? — A. On the next Wednesday, the 13th. Q. What time of day did you arrive in Watonga? — A. About 9 o'clock. Q. What caused your return? — A. The chairman of the Republican central committee notified me that the election board was in session again, and they had been called to Oklahoma City and had come back to this county and was going to throw out some of the voting precincts of this county. Mr. Emery. We move to strke out the answer of the witness as Incompetent. Q. What did you do upon your return here to Watonga? — A. I tried to find the election board. They wasn't at their office. I also phoned to different places and couldn't find them. Q. Did you phone to Mr. Mosley's home? — A. Yes, sir. Q. Did you phone to Mr. Hogau's home. — A. No, sir. Q. Did you make inquiries as to their whereabouts? — A. Yes, sir. Q. Were you in town in Watonga all that day? — A. Yes, sir. Q. When did you return home? — A. On the 5.35 train that evening. Q. Did you go in the room which had been used by the county election board in tabualting the votes the week before? — A. No; the door was locked. Q. Did you have a key to this room"? — A. No, sir. Q. Did you look inside the room through the window? — A. Yes, sir. Q. Were the election boxes in there? — A. Yes, sir. Q. When next did you return to Watonga? — A. The next day — the 14th. Q. What did you do when you returned to Watonga on the 14th? — A. I went to the court house. Q. Did you again try to enter the room that had been used by the county election board? — A. Yes, sir. ■Q. What all did you do that day? — A. I found the members in the county treasurer's office. Q. State what conversation you had with them at that time. — A. Well, I asked them to go down to the election board's office, which they did, and they told me they had thrown out 11 voting precincts. CAKlSfEY VS. MORGAIS". 149 Q. What precincts did they say they had thrown out? — A. Had thrown out Carlton, precinct No. 29; Canton, precinct No. 23; Arapaho. precinct No. 8; Watonga Township, precinct No. 20; Cedar Valley, precinct No. 6; Bast Dixon, precinct No. 9 ; West Dixon, precinct No. 28 ; West Lincoln Township, precinct No. 10; Enst Lincoln, precinct No. 30; Logan, precinct No. 12; and Flynn Town- ship, precinct No. 13. Q. Did they say anything to you about where they had been since the board had adjourned on the 7th of November. 1912? — A. Yes, sir; they said they had received notice to come to Oklahoma City and they went. Q. Did they say to whom they had talked there? — A. Said they talked to Attorney General West; Gov. Cruce; Mr. Harrell, the Democratic chairman; Mr. Riley, secretary of the State election board; also Mr. Gould; and they were ordered to come back -here for an investigation. They came back, made an investigation, and went back to Oklahoma City. Q. Did they say who they had talked with when they returned from Okla- homa City the second time? — A. Well, I don't Imow as they did; I presume it was the same parties. Mr. Emery. We move to strike out the last answer of the witness as a conclusion. Q. Whom did they say had told them to throw out these boxes? — A. Well, they said the governor. I said, " Did the governor tell you to throw out these prec-incts?" And he said if things was the way they were represented he thought he had authority to. Q. By "he" you mean Gov. Cruce? — A. Yes, sir — and also Attorney General AVest. Q. What other conversation did you have with either Mr. Mosley or Mr, Hogan concerning the throwing out of these 11 boxes, or the vote in these 11 precincts? — A. Mr. Mosley said the reason that they didn't notify me was because they wanted to get ahead of mandamus proceedings. If they told me, I would tell what went on. Q. State any other conversation you had with either Mr. Mosley or Mr. Hogan on this occasion. — A. Well, there were other things talked about, but I don't .lust remember. Q. Did they say anything -about making up a new tabulated statement to send to the State board? — A. I think they said they had made out a tabulated statement, with 11 precincts not shown. Q. When did Mr. Mosley or Mr. Hogan say they had made up this new certificate leaving out the il precincts to send to the State board? — A. To the best of my recollection, it was Wednesday night. Q. That was the 12th? — A. Yes; Wednesday, anyway. Q. Between what hours did they say they had made it out? — ^A. I think they said they arrived in Watonga that evening. Cross-examination by Mr. Emery : Q. Mr. Broady, directing your attention to the meeting of November 7, the evening that you state in your testimony the certificates were made out, state fully what was said and done by yourself and Messrs. Hogan and Mosley on your separating. — A. When the certificates were signed I asked the members if the business was all done, and they said it was all done, except Mr. Hogan signing the certificates of election, and also the State tally sheet; and I said if we were all through with me I was going home on the 5.35 train. Mr. Mosley said he was going home, and I supposed that was an agreement, but I said when I left, " If anything happens, notify me." Q. Was there any motion made to ad.1ourn? — A. No, sir. Q. When you separated only one member of the county election board had signed the certificate, and that was Mr. Mosley? — A. Mv. Mosley and myself. Q. When you say that you signed the certificate, you have reference to the certificates on the county tickets? — ^A. Yes, sir. Q. On the State certificate and tally sheets was there any place for you to sign? — A. No, sir. Q. Now, on the State tally sheets and certificate that one member had signed, on the board separating on the evening of November 7, that was Mr. Mosley? — A. Yes, sir. Q. You state in your testimony that you were going home and Mr. Mosley was going home, but what was Mr. Hogan going to do? — A. He said he was going home. Q. Mr. Hogan was chairman of the board? — A. Yes, sir. 150 CAENEY VS. MOEGAlSr. Q. There was a place or line on the State certificates and tally sheets for the chairman to sign? — A. On the State certificate there was. Q. Why didn't Mr. Hogan sign the State certificate before the three members of the board went home? — A. Well, I don't know positively. Q. It would be necessary for Mr. Hogan to sign the State certificate before sending the same, together with the tally sheet, to the State election board?— A. I think it would be necessary for him to sign the certificate; sure. Q. What reason did Mr. Hogan give for not signing the certificates before the three members of the board went home? — ^A. He said we had not counted the mutilated ballots. Q. Anything else? — ^A. I think he said that he had a call into Oklahoma City and ho wanted to hear from that. Q. Anything else? — A. That is all. Q. Now, Mr. Broady, didn't Mr. Hogan say that he would not sign the certifi- cate because there would have to be an investigation concerning the conduct of the election in some of the precincts? — A. Not to my recollection he didn't. Q. If he did say it you did hear it? — A. No, sir. Q. What did Hogan say he had this call into Oklahoma City for? — ^A. He didn't tell me. Q. At this time, on November 7, 1912, how long had you been serving on the county election board? — ^A. I believe something over a year; about a year, I guess. Q. During this time you have attended more or less of the meetings of the county election board? — A. Yes. Q. Was it not the custom, if not the rule, to make a formal motion to adjourn before separating and going to your home? Mr. Morgan. Objected to as calling for a conclusion of the witness and not for a statement of the fact and calling for a custom. A. It was not. Q. Have you ever examined the minutes of the county election board, and if so, have you found any record of adjournments? — ^A. I haven't examined the record. Redirect examination by Mr. Morgan : Q. To what political party, if you know, do Mr. Hogan and Mr. Mosley belong? — ^A. Democratic. Q. Regarding the custom of the county election board of Blaine County, I will ask you has it been the custom upon the adjournment of its sessions ta have any formal motion to adjourn made? — A. No, sir; not since I have been a member": except on the 13th I asked for a motion adjourning the county election board. Q. Are you acquainted with the signatures of Mr. Dan Hogan and Mr. Tom Mosley? — A. Well, I don't think I'd know Mr. Hogan' s, but I think I'd recognize Mr. Mosley's. Recross-examination by Mr. Emery : Q. How many meetings of the county election board had you attended before the meetings in November, 1912? — A. I would say three. W. C. Broady. Subscribed and sworn to before me this 27th day of February, A. D. 1913. [seal.] Theodore Graalman, Notary Public. My commission expires January 17, 1915. T. W. MOSLEY, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Q. State your name and residence. — A. T. W. Mosley, Blaine County, Okla. Q. How long have you lived in Blaine County? (Now Capt. Emery informs the witness of his rights under the Constitution of the United States' of refusal to answer any question or questions propounded to him concerning the election held in this county in November, 1912, on the account of the criminal action growing out of said election now pending and undetermined in the United States District Court for the Western District of Oklahoma, for the reason that the said evidence might be used in the said action against him, and might in some way incriminate him.) (Porter H. Morgan, attorney for contestee, now states to the witness that the following is section 116 of the Revised Statutes of the United States of America, to wit: CARNEY VS. MOEGAN. 151 "Any person who, having been summoned in the manner above directed, re- fuses or neglects to attend and testify, unless prevented by sickness or unavoid- able necessity, shall forfeit the sum of $20, to be recovered with costs of suit by the party at whose instance the subpoena was issued and for his use by au action of debt in any court of the United States, and shall also be liable to ah indictment for a misdemeanor and punished by a fine and imprisonment." (Capt. Emery informs the witness that the statute just read by counsel for the contestee has no application to a witness under prosecution for violating the criminal statutes growing out of the election concerning which he will be inter- rogated by the contestee.) A. About 20 years in Blaine County, Okla. Q. What, if any, official position did you hold in Blaine County, State of Oklahoma, on the 5th day of November, 1912? ■ Mr. Emery. The opinion of counsel for the contestant as to whether or not the witness was secretary of county election board is a material allegation iti the indictment, and the burden is upon the United States to prove it. Mr. Morgan (to Mr. Emery). Are you here as counsel for the contestant herein, John J. Carney? — A. Yes. Q. Have you been and are you now counsel for the witness, T. W. Mosley, in the matter in the Federal District Court of the Western District of the State of Oklahoma, in which Mr. Mosley is defendant? — A. I have never appeared for Mr. Mosley as counsel. '< Q. Mr. Mosley, were you at the courthouse in Blaine County, State of Okla- homa, on the evening of November 5, 1912? — A. (No answer.) Mr. Morgan. The witness, by failing and neglecting to answer the question's propounded to him and his acquiescence in the objection by Mr. Emery to testifying herein, an adjournment is taken by order of the notary public until 8.30 o'clock a. m., February 28, at which time the witness not appearing, pro- ceedings were had as hereafter set out herein. The witness appearing at 10.30 o'clock a. m., February 28, and refusing further to testify, he was excused from giving further evidence. Tom Moselet. Subscribed and sworn to before me this 2Sth day of February, 1913. [seal.] Theodore Graalman, Notary PtiWic. My commission expires January IT, 1915. E. H. LOOKABAUGH. being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testifies : Q. State your name and residence? — A. E. H. Lookabaugh, Watonga, Okla. , Q. Did you reside in Watonga during the month of November, 1912? — A. Yes, sir. Q. What, if any, oflacial position did you hold in the Republican Party during the campaign in the fall of 1912? — A. Chairman of Blaine County Republican central committee. Q. Were you acquainted in the fall of 1912 with Tom Mosley, secretary of the county election board of Blaine County, and Dan Hogan, chairman of the county election board of Blaine County, Okla.? — A. I was. Q. State what, if any, conversation you had with either Mr. Mosley or Mr. Hogan on or about the 8th of November, 1912, and state where the conversa- tion was had and in whose presence. — ^A. I had a conversation with Tom Mosley, secretary, about the 8th of November, at which time I inquired of him why it was that the certificates of election h.nd not been issued and the returns trans- mitted to the State election board on State and congressional candidates for Blaine Covinty by the election board, and whether or not there was any truth in the rumor that they were intending to throw out several precincts in Blaine County, and in answer to this Mr. Mosley stated that he didn't think there was anything in the rumor as to the throwing out of precincts and thought every- thing would be all right in that line, but further stated that there was some objection being made and claims made that there had been illegal votes cast in some of the precincts in the county, and the matter was being held up pending an investigation of those matters. Q. When next did you have a conversation with either Mr. Mosley or Mr. Hogan? — A. About the 10th of November, further inquiring of Mr. Mosley as to what was being done, and why the certificates and i*eturns were delayed. He stated to me that they were making an investigation in several precincts for the purpose of ascertaining whether or not the illegal votes had been cast and 152 CAEISrEY vs. MOEGAN, the grandfather clause not enforced as to negroes, arid stated to me at that time that it was his understanding that if a negro voted without having first feefen put to the test under the grandfather law that the vote was illegal, not- withstanding the fact that the local election board may have been satisfied that he was eligible under that law. Q. When next did you have a conversation with either Mr. Hogan or Mr. Mosley concerning this matter, and what was the occasion of your having the Conversation with them? — A. On the morning of the 13th of November, I think it was. after the information had gotten out and became public that 11 precincts of Blaine County had not been counted in the final certificate of return, I, in company with Harrison Brown, the congressional committeeman, went to see Mr. Hogan and Mr. Mosley, who were together, and asked them whether or not it was a fact, that these precincts had been thrown out, at which time, and while they were together Mr. Mosley stated to us that it was a fact, and that 11 i»reeincts was the number that they had refused to certify, but stated further that in his judgment they should have thrown out 16 precincts, and on being asked by myself why he didn't do so, he stated that he couldn't get them to do it. A short time after this, on the same day, myself, together with a number Of the other Republicans, chief among whom were Harrison Bro^^'Tl, E. J. Warner, W. H. Phillips, Seymour Foose, and Theodore Graalman, Louis Vogt, W. F. Schultz, and others met Mr. Hogan and Mr. Mosley at Hooper's drug store in Watonga and asked whether or not the board was in session, at which time we were informed by them that they were not, but they could convene at any time, whereupon we asked of them if we could not be shown the records, returns, and minutes of their proceeding in the matter of refusing to count the . returns of these 11 precincts. Mr. Hogan and Mr. Mosley then accompanied us to the ofiice of the county election board and allowed us to get the information ,we desired. Q. Did they show you a statement prepared by them, or by the board of the I'esult of the vote in all the precincts in Blaine County on a shee*^ used for making the return of the votes on the State ticket to the State election board? — A. I don't believe that I saw that certificate. Q. Did you see the returns from these 11 precincts which had beeu thrown out? — ^A. I did. I saw each certificate as certified by the local board and official counters. Q. That is, you saw the certificate made by the precinct election board as to the result in each precinct, of the votes cast for State officers, among which Was the vote for Congressman in the second district of the State of Oklahoma, of the following precincts, to wit, Arapaho Township, precinct No. 8; Watonga Township, precinct No. 20; Cedar Valley Township, precinct No. 6; East Dixon Township, precinct No. 9 ; West Dixon Township, precinct No. 28 ; Canton ^Township, precinct No. 23; West Lincoln Township, precinct No. 10; Carlton Township, precinct No. 29; East Lincoln Township, precinct No. 30; Logan township, precinct No. 12, and Flynn Township, precinct No. 13, all in Blaine County, State of Oklahoma? — ^A. No, sir; we did not look for certificates of the State and Congressional returns. Q. Did Mr. Mosley or Mr. Hogan say anything about having been to Okla- homa City? — A. Yes", Mr. Mosley told me that they went to Oklahoma City. Q. What, if anything else, did he say concerning their being at Oklahoma Qity? — A. He said they were called to Oklahoma City by the State election board in regard to these claimed illegal votes. Q. Did Mr. Mosley or Mr. Hogan say whom they had talked with in Oklahoma Qity? — A. I don't think Mr. Mosley stated just whom he talked to, but said that he had seen Riley, secretary of the State election board, and others higher in authority in regard to these matters. Q. Did you have any other conversation with Mr. Mosley concerning this matter? — A. Nothing of any importance that I can remember of. E. H. LOOKABAUGH. Subscribed and sworn to before me, this 28th day of February, A. D. 1913. [seal.] Theodobe Gsoalman, Notary Puhlic. : My commission expires January 17, 1915. SEYMOUR FOOSE. being first duly sworn to tell the truth, the whole truth, atid nothing but the truth, testifies : Q'. State your name and residence and business.— A. Seymour FoOSe, Watonga, 6'laine County, Okla. ; I am engaged in practicing law. CAENEY VS. MORGAN. 153 Q. How long have you lived in Watonga ? — ^A. It will be 21 years the 19th of next April. Q. Are you acquainted with Tom Mosley and Dan Hogan, members of the county election board of Blaine County. Okla.?— A. Yes. Q. I will ask you to state whether or not, on or about the 13th day of Novem- ber, 1912, you had a conversation with them? — A. I did. Q. Where did this conversation take place and who were present? — A. The conversation began at Hooper's drug store, in Watonga, and was continued at the courthouse after going there from the drug store. Q. Who were present during these conversations? — A. Well, during a part of the time different persons were present. There were some more present at the courthouse than there were at the drug store. I can name several who were present at the courthouse. They were E. H. Lookabaugh, W. H. Phillips, Har- rison Brown, E. J. Warner, E. N. Pierson, Louis Vogt. and possibly some others. These parties were not all present all of the time, but part of them were present a part of the time. Q. State what conversation took place between yourself and either Mr. Mosley or Mr. Hogan on this occasion, or between other persons besides Mr. Hogan or Mr. Mosley? — A. Upon finding Mr. Hogan and Mr. Mosley at the drug store, they were asked if they would go to the courthouse and show us the books, papers, and records of the county election board. They said they would and went with us to the courthouse. 1 asked to be shown their minute book con- taining the record of their proceedings as a board, and also the election returns from the 11 precincts that they had thrown out and refused to count. They took us into the room in the basement of the courthouse and from a desk took or produced their minute book and the election returns asked for, and we there examined the same. There was other conversations back and forth, all of the details of which I do not recall exactly; but Mr. Mosley, upon producing the minute book, said that was the book in which he had entered the proceedings of the board taking place since the election. I asked him if it contained all the minutes of their proceedings that he had made, and he said it did. As the election returns of the 11 precincts asked for were produced by Mr. Mosley, he stated that they were the returns that the board had received from those several precincts. I asked him if they had completed their canvas and made out and delivered the certificates of election to the county candidates and certi- fied their returns on the State ballot, Including candidates for Congress, to the State election board, and he answered they had. I then asked him when this was done, and he answered they had all been put in the mail. I asked him when they were mailed, and he said, hesitating. "Yesterday evening." I asked him if they had gone out from the post ofiice yet. and he said he didn't know. I asked him what time in the evening they were mailed, and he answered they had all been put in the mail. Q. Did he state to .you whether or not. as regards the returns of the county election board of Blaine County to the State election board of Oklahoma, they had left out the vote in these 11 precincts? — A. He did, in substance. He said that thej^ had thrown out these 11 precincts and had not counted them in making up the vote, either on Congressman or on the county ticket. Q. At the time of your examination of the minute book shown to you by Mr. Mosley did you take any copy of what was there shown? — A. I took a copy of everyth'ng that was in the minute book subsequent to the date of, the general election in November, 1912. Q. Have you in your possession the copy of that record that you took at that time: and if so. please produce it? — A. I have, and I here produce it. (Contestee now asks that the two sheets produced by the witness be marked ■" Contestee's Exhibit 14." Q. TTais Exhibit 14 you copied directly from the record of the county election board of Blaine County, did you? — A. I did in my own handwriting and was very careful to copy the record exactly and verbatim. Q. At the top of the first sheet are the words " Watonga 6-1912." I will ask you what, if any, explanation Mr. Mosley, the secretary of the county election board, made to you as to that entry? — A. While making this copy I called his attention to this date line, and he said that it meant November 6, 1912, that he had omitted the name of the month by mistake. Q. When you speak about the 11 precincts that were thrown out you have reference to Arapaho Township, precinct No. 8 : Watonga Township, precinct No. 20 ; Cedar Valley Township, precinct No. 6 ; East Dixon Township, precinct No. 9 ; West Dixon Township, precinct No. 28, Canton Township, precinct No. 23 ; 154 CAENEY VS. MORGAN. West Lincoln Townsbip, precinct No. 10; Carlton Township, precinct No. 29? East Lincoln Township, precinct No. 30 ; Logan Township, precinct No. 12 ; and Flynn Township, precinct No. 13, all in Blaine County, State of Oklahoma, do you not? — A. Yes, sii^. Seymour Foose, Subscribed and sworn to before me this 28th day of February, A. D. 1913. [SEAJL.] Theodore Graalman, Notary PiiMic. My commission expires January 17, 1915. Contestee's Exhibit 14. Watonga, 6-1912. The Blaine County election board met for the purpose of receiving the returns from the various precincts of the county and to make an official count of the returns : Morgan, Dick 1, 351 Carney, J. J 1,171 180 Carlev 1, 063 Warner. E. 3 1,438 375 Kelly. Dr 1, 053 Jameison 1, 366 313 Capital, No. 40 : Yes 840 No - 1, 532 School No. 45 : Yes 1, 20O No - 911 Agriculture, 38: Yes 2, 107 No 1, 127 980 T. W. MOSLEY. Watonga, Okla., Nov. 8, 1912. T'he official returns as shown after 11 precincts were thrown out on account of the election law not being enforced leaves the official returns as follows : Carney 814 Morgan 772 Carley 721 Warner 849 Kelly 711 Jamison 825 Longl 395 T. W. MoSLEY. SUBPOENAS. State of Oklahoma, Blaine County, ss: W. C. Broady : You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify CAENEY VS. MOEGAlSr. 155 as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned. Hereof fail not under penalty of law. In witness whereof I have hereunto set my hand and aflBxed my seal this 24th day of February, 1913. [SEAL.] THEODOEE GRAALMAN, Notary Puhlic, Blaine County, State of Olclahoma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of Feb- ruary, ]I913, and served the same upon the within-named W. C. Broady by delivering a true and correct copy of the same to him on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State of Oklahoma, Blaine County, ss: Tom Mosley: You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein .John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you the returns received from the precinct election boards of the following precincts, to wit : Arapahoe Town- ship, Watonga Township, Cedar Valley Township, East Dixon Township, West Dixon Township, Canton Township, West Lincoln Township, Carlton Township, East Lincoln Township, Logan Township, Flynn Township, all in Blaine County, State of Oklahoma, by the county election board of Blaine County, State of Oklahoma, of the result of the general election held in said voting precincts on the 5th day of November, 1912, as between candidates for offices on the State ticket, together with the tally sheets used by said precinct election boards at said election as to said candidates, and all books kept by the county election board of Blaine County, State of Oklahoma, showing the record of the action of the said last-named board in respect to the canvass of the returns of the said election pertaining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not, under penalty of law. In witness whereof, I have hereunto set my hand and official seal this the 25th day of February, 1913. [seal.] Theodore Graalman, Notary Puhlic, Blaine County, State of Oklahoma. My commission expire January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of Febru- ary, 1913, and served the same upon the within-named Tom Mosley by delivering a true and correct copy of the same to him on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. v^tate of Oklahoma, Blaine County, ss: E. R. Taylor: ' You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify 156 CARNEY VS. MOEGAN. as a witness in a certain action or contest pencl'ng before tlie honornble House of Representatives of the Sixty-third Confjress of the United Stfites of America, wherein John J. Carney is contestfint and Dicls; T. Morgan is contestee, on the part of the contestee therein, nnd bring with yon the returns received from the precinct election bonrds of the following precincts, to wit: Arapnhoe Township, Watonga Township, Cedfir Valley Township, E;ist Dixon Township, West Dixon Township, Canton Township, West Lincoln Township, Carlton Township. East Lincoln Township, Logan Township. Flynn Township, all in Blaine County, State of Oklahoma, by the county election board of Blnine County, State of Oklahoma, of the result of the general election held in said voting precincts on the 5th day of November, 191.2, as between candidates for offices on the St^^te ticket, together with the tally sheets used by said precinct election boards at said election as to said candidates, and all books left by the county election board of Blaine County, State of Oklahoma, showing the record of the action of the said last-named board in respect to the canvass of the returns of the said election pertaining to certain matters in controversy between said par- ties, and not depart without leave of the undersigned. Whereof, fail not, under penalty of law. In witness whereof, I have hereunto set my hand and official seal this the 25th day of February, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oldahoma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of Feb- ruary, 3913. and served the same upon the within-named E. R. Taylor by de- livering a true and correct copy of the same to him on the 25th day of Feb- ruary, 1913. Lee A. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State of Oklahoma, Blaine County, ss: James Dimmitt : You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February. 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein and not depart without leave of the undersigned. Hereof fail not under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this 24th day of January, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oldahotna. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same apon the within-named James Dimmitt by delivering a true and correct copy of the same to him on the 25th day of February, 1913. Lee A. Akin, . Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State of Oklahoma, Blaine County, ss: A. li. Slayton : You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m., to testify CAENEY VS. MOKGAN. 157 as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you a copy of the return of the Canton Township precinct election board showing the results of the election held therein November 5. 1912, as to candidates upon the State ticket, pertain- ing to certain matters in controversy between said parties, and not depart without le ve of the undersigned. Whereof fail not under penalty of law. In witness whereof I ha\e hereunto set my hand and affixed my seal thia the 24th day of February, 1913. [seal.] Theodore Graalman, 'Notary Public, Blaine County, State of Oldahoma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of P^'ebruary. 1913, and served the same upon the within-named A. L. Slayton by delivering a true and correct copy of the same to him (A. L. Stayton) on the 25th d, y of P^ebruary 1913. Lee a. Akin, Sheriff of Blaine County, State of Oldahoma. Fee, 75 cents. State of Oklahoma, Blaine County, ss: To P\ A. Wallen. You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Okla- homa, on the 27th day of February. 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Represeiitatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, ;^.nd not depart without leave of the undersigned. Hereof f.iil not, under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this 24th day of February, 1913. [seal.] Theodore Graalman, Notary Puhlic, Blaine County, State of Oklahoma. Commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within named F. A. "fallen, by delivering a true and correct copy of the same to him on the 25th day of February, 1913. P^ee, 75 cents. Lee A. Akin, Sheriff of Blaine County, State of Oklahoma. State of Oklahoma, Blaine County, ss: To L. R. Howell. You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Okla- homa, on the 27th day of Febiniary, 1913, at 8 o'clock a. m., to testify as a witness in :i certain ct'on or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the under-signed. Hereof fail not, under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this 24th day of February, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. 158 CAENEY VS. MOEGAN. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within named L. R. Howell, by delivering a true and correct copy of the same to him on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. I^TATE OF Oklahoma, Oklahoma County, ss: To John McGee. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga. county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United Sates of America, wherein John J. Carney is contestant and Dick T. Morgan is con- testee, on the part of the contes*^ee therein, and bring with you a copy of the returns of the Carlton Township precinct election board showing the result of the election held therein November 5, 1912, as to candidates upon the State ticket, pertaining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not, under penalty of law. In witness whereof, I have hereunto set my hand and official seal this the 24th day of February, 1913. [SEAL.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. State of Oklahoma, Oklahoma County, ss: I hereby certify that I received the v.ithin subpoena on the 25th day of February. 1913. and served the same upon the within-named John McGee by de- livering a true and correct copy of the same to the said John McGee on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State of Oklahoma, Oklahoma County, ss: To Henry Speeitzer. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga. county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you a copy of the returns of the East Lincoln Township precinct election board showing the results of the election held therein on November 5, 1912, as to candidates on the State ticket, pertaining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof, fail not, under penalty of law. In witness whereof, I have hereunto set my hand and official seal this the 24th day of February, 1913. [seal.] Theodore Graalman, Notary PulMc, Blaine County, State of Oklahoma. My commission expires January 17, 1915. State of Oklahoma, Oklahoma County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within named Henry Spreitzer CARNEY VS. MOEGAN. 159 by delivering a true and correct copy of the same to tlie said Henry Spreitzer on th-j 25tli day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State ©f Oklahoma, Blaine County, ss: To William Hagan. You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned. Hereof fail not, under penalty of law. In witness whereof, I have hereunto set my hand and affixed my seal this the 24th day of February, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. Commission expires January 17, 1915. State of Oklahoma, Blaine County, ss:' I hereby certify that I received the within subpoena on the 24th day of February, 1913, and served the same upon the within named William Hagan by delivering a true and correct copy of the same to the said William Hagan on the 24th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State of Oklahoma, Blaine County, ss: To. J. R. Whislee. You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Represen«^atives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you a copy of return of Arapahoe Township precinct election board showing the result of the election held in said precinct on November 5, 1912, as to candidates upon the State ticket, pertaining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof, fail not, under penalty of law. In witness whereof, I have hereunto set my hand and official seal this the 24th day of February, 1913. [SF^L.] Theodore Graalman, Notary Puhlic, Blaine County, State of Oklahoma. Commission expires January 17, 1915. State of Okiahoma, Oklahoma County, ss: I hereby certify that I received the within subpoena on the 24th day of Febru- ary, 1913, and served the same upon the within named J. R. Whisler, by deliver- ing a true and correct copy of the name to the said J. R. Whisler on the 24th day . of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. 160 CAENEY VS. MOKGAN. State of Oklahoma, Blaine County, ss: To William Carter. You are hereby cominaiidecl to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February. 1913, at S o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned. Whereof fail not under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this the 24th day of February, 1913. [seal.] Theodore Graalman. Notary Public, Blaine County, State of OklaJioma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within-named William Carter by delivering a true and correct copy of the same to him on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State of Oklahoma, Blaine County, ss: To C. E. Albin. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honornble House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you * * * pertaining to cer- tain mutters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not under penalty of lav\r. In witness whereof I have hereunto set my hand and official seal this the 25th day of February, 1913. [seal.] Theodore Graalman, Notary PuNic Blaine County, State of Oklahoma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within-named C. E. Albin by delivering a true and correct copy of the same to him on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. Fee, 75 cents. State of Oklahoma, Blaine County, ss: To John B. Lemon. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m. to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United Strifes of America, wherein John J. Carney is contestant, and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you * * * pertaining to cer- tain matters in controversy between said parties, and not depart without leave of the undersigned. CARNEY VS. MORGAN. 1'61 Whereof fail not under penalty of law. In witness whereof I have hereunto set my hand and official seal this the 25th day of February, 1913. [seal.] Thkodore Geaalman, Notary Public, Blaine County, State of Oklahoma. My coromission expires 17th day of January, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of Feb- ruary, 1913, and served the same upon the withiu-named John B. Lemon by delivering a true and correct copy of the same to him on the 25th day of Feb- ruary, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. By E. N. Pearson, His Deputy. Fee, 75 cents. State of Oklahoma, Blaine County, ss: To R. I. Temple. Ton are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, comity of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant, and Dick T'. Morgan is contestee, on the part of the contestee therein and bring with you copy of the return of the Watonga Township precinct election board, showing the result of the election held in said precinct on November 5, 1912, as to candidates on the State ticket pertaining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not under penalty of law. In witness whereof I have hereunto set my hand and official seal this the 24th day of February. 1913. [seal.] Theodore Graalman, Notary PiiNic, Blaine County, State of Oklahoma. My commission expires 17th day of January, 1915. State of Oklahoma, Oklahoma County, ss: I hereby certify that I received the within subpoena on the 25th day of Feb- ruary, 1913, and served the same upon the within-named R. I. Temple by deliv- ering a true and correct copy of the same to the said R. I. Temple on the 25th day of Febnaary, 1913. Lee A. Akin, Sheriff of Blaine County, State of Oklahoma. By E. N. Pearson, His Deputy. Fee, 75 cents. State of Oklahoma, Oklahoma County, ss: To A. L. Ennen : You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you a copy of the returns of the West Lincoln Township precinct election board showing the results of the election held therein November 5, 1912, as to candidates upon the State ticket, pertaining to certain matters in controversy- between said parties, and not depart without leave of the undersigned. 4252—13 11 162 CARNEY VS. MOEGAN. Whereof fail not under penalty of law. In witness whereof I have hereunto set my hand and official seal this the 24th day of February, 1913. [seal.] Theodore Graalman, 'Notary Public, Blaine County, State of OMahomn. My commission expires January 17, 1915. State of Oklahoma, Oklahoma County, ss: I hereby certify that I received the within subpoena on the 24th day of February, 1913, and served the same upon the within-named A. L. Ennen by delivering a true and cori-ect copy of the same to the said A. L. Ennen on the 26th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. By Chas. M. Kelley, His Deputy. Fee, 75 cents. State of Oklahoma, Blaine County, ss: To J. A. Dunn: You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of Amoi'ica, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you a copy of the returns of Logan Township precinct showing the result of the election held therein on November 5, 1912, as between candidates upon the State ticket, pertaining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not under penalty of law. In witness whereof I htive hereunto set my hand and official seal this the 25th day of February, 1913. [seal.] Theodore Graalman, Notary Puhlic, Blaine Co-unty, State of Oklahoma. My commission expires 17th day of January, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within-named J. A. Dunn by leaving a true and correct copy of the same at his usual place of residence on the 26th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. By Chas. M. Kelley, His Deputy. Fee, 75 cents. State of Oklahoma, Blaine County, ss: To E. T. Davis. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned. Hereof fail not, under penalty of law. CAENEY VS. MOEGAN. * 163 In witness whereof I have hereunto set my hand and affixed my seal this the 24th day of February, 1913. [SEAL.] Theodore Graalman, Notary PuUic, Blaine County, State of OlclaJioma. Commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 24th day of February, 1913, and served the same upon the within-named E. T. Davis, by leaving a true and correct copy of the same at the usual place of residence of E. T. Davis, on the 25th day of February, 1913. Lee a. Akin,- Sheriff of Blaine County, State of Oklahoma, By Chas. M. Kelley, His Deputy. Miles traveled, 25, $2.50 ; fee, $0.75 ; total, $3.25. State of Oklahoma, Blaine County, ss: To W. E. Thompson. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned. Hereof fail not, under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this 24th day of February, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of OMahoma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 24th day of February, 1913, and served the same upon the within-named W. E. Thompson, by delivering a true and correct copy of the same to him on the 26th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of OMahoma, By Chas. M. Kelley, Miles traveled, IS, $1.80 ; fees, $0.75 ; total, $2.25. State or Oklahoma, Oklahoma County, ss: To George H. Butler. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you copy of the return of the Cedar Valley Township precinct election board, showing the results of the , election held November 5, 1912, as to candidates upon the State ticket, per- taining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not, under penalty of law. 164 CAENEY VS. MOKGAN. In witness whereof I have hereunto set my hand and official seal this the 24th day of February, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. Commission expires January 17, 1915. State of Oklahoma, Oklahoma County, ss: I hereby certify that I received the within subpoena on the 24th day of February, 1913, and served the same upon the within-named George H. Butler by delivering a true and correct copy of the same to the said George H. Butler on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma, By Chas. M. Kelley, His Deputy. Miles traveled, 22, $2.20 ; fee, $0.75 ; total, $2.95. State of Oklahoma, Blaine County, ss: To Feed Strong. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga. county of Blaine, State of Oklahoma, on the 27th day of February, 1913, at 8 o'clocli a, m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein and not depart without leave of the undersigned. Hereof fai] not, under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this the 24th day of February, 1913. [seal.] Theodore Graalman, Notary PuMic, Blaine County, State of OkWioma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 24th day of February, 1913, and served the same upon the within-named Harvey Laughlin, delivering a true and correct copy of the same to him on the 26th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma, By Chas. M. Kelley, His Deputy. Miles traveled, 40, $4; fee, $0.75; total, $4.75. State of Oklahoma, Blaine County, ss: To Harvey Laughlin. You are hereby commanded to appear before the uiidersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in. a certain action or contest pending before the honorable House of Ilepresenta;tives of the Sixty-third Congress of the United States of America, wherein John J. Carn,ey is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, a,nd bring yith you pertaining to certain matters in controversy between said parties, and not depart withou,t leave of the undersigned. Whereof fail not, under penalty of law. In witness whereof I have hereunto set my b,and and official seal this the 25th day of February, 1913. [se;al.] Theodore Graalman, Notary PuMic, Blavne County, StOite of Okl(ihoma. My commission expires 17th day of Ja,nuary, 1915. % CARNEY VS. MORGAN. 165 State of Oklahoma, Blaine County, ss: I hereby certify that I received the witlain subpoena on the 24th day of February, 1913, and served the same upon the within-named Harry Laughlin, by delivering a true and correct copy of the same to him on the 26th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma, By S. L. Bender, His Deputy. Miles traveled 20, $2 ; fee, $0.75 : total, $2.75. State of Oklahoma, Oklahoma County, ss: To R. G. Rycroft. You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you copy of the returns of the East Dixon Township precinct election boai-d showing the result of the election held therein on November 5, 1912, as to candidates on the State ticket, pertain- ing to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not, under penalty of law. In witness whereof I have hereunto set my hand and official seal this the 24th day of February, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. Commission expires January 17, 1915. State of Oklahoma, Oklahoma County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within-named R. G. Rycroft, by delivering a true and correct copy of the same to the said R. G. Rycroft, on the 25th day of February, 1913. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma, By S. L. Bender, Sis Deioutti Miles traveled, 18, $1.80 ; fee, $0.75 ; total, $2.55. State of Oklahoma, Oklahoma County, ss: To F. A. Knott : You are hereby commanded to appear before the undersigned at the Kui^tits and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and bring with you copy of the return of the West Dixon Township precinct election board showing the results of the elec- tion held in said precinct on November 5, 1912, as to candidates on the State ticket, pertaining to certain matters in controversy between said parties, and not depart without leave of the undersigned. Whereof fail not, under penalty of law. In witness whereof I have hereunto set my hand and official seal this the 24th. day of February, 1913. [seal.] Theodore Gbaalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. 166 CABNEY VS. MOKGAN. State of Oklahoma, Oklahoma Coimty, ss: I hereby certify that I received the within subpoena on the 25th day of Feb- ruary, 1913, and served the same upon the within-named F. A. Knott by deliver- ing a true and correct copy of the same to the said F. A. Knott on the 25th day of February, 1913. Miles traveled, 23, $2.30 ; fee, $0.75 ; total, $3.05. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. By S. L. Bender, His Deputy. State of Oklahoma, Blaine County, ss: To William Dyke: You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall, in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February, 1913, at S o'colck a. m., to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned. Hereof fail not, under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this the 24th day of February, 1913. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of ■February. 1913, and served the same upon the within-named William Dyke by delivering a true and correct copy of the same to the said William Dyke on the 25th dav of February, 1913. Miles traveled, 14, $1.40 ; fee, $0.75 ; total, $2.15. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. By S. L. -Bender, His Deputy. State of Oklahoma, Blaine County, ss: To W. L. Beals: You are hereby commanded to appear before the undersigned at the Knights and Ladies of Security Hall in the city of Watonga, county of Blaine, State of Oklahoma, on the 26th day of February. 1913, at 8 o'clock a. m., to testify as a witness in a certain action or contest pendins before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned. Hereof fail not under penalty of law. In witness whereof I have hereunto set my hand and affixed my seal this the 24th day of February, 1913. [seal.] Theodore Graalman, Notary Piiblio, Blaine County, State of Oklahoma. Commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of February, 1913, and served the same upon the within named W. L. Beals by % CAENEY VS. MORGAN. 167 delivering a true and correct copy of the same to the said W. L Beals on the 25th day of February, 1913. Miles traveled, 14, $1.40; fee, $0.75; total, $2.15. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. By S. L. Bender, His Deputy. State of Oklahoma, Blaine County, ss: To J. L. French, Sr. : You are hereby commanded to appear before the undersigned, at the Knights and Ladies of Security Hall in the city of Watonga, county of Blaine State of Olvlahoma, on the 26th day of February, 1913, at 8 o'clock a. m.. to testify as a witness in a certain action or contest pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is contestee, on the part of the contestee therein, and not depart without leave of the undersigned Hereof fail not under penalty of law. In witness whereof I have hereunto set my hand and affixed mv seal this the 24th day of February, 1918. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. Commission expires January 17, 1915. State of Oklahoma, Blaine County, ss: I hereby certify that I received the within subpoena on the 25th day of Febru;iry. 1913, and served the same upon the within named J. L. French, sr., by delivering a true and correct copy of the same to the said J. L. French sr on the 25th day of February, 1913. Miles traveled, 24. $2.40 ; fee, $0.75 : total, $3.15. Lee a. Akin, Sheriff of Blaine County, State of Oklahoma. By S. L. Bender, His Deputy. I, Theodore Graalman, notary public within and for the county of Blaine, State of Oklahoma, do hereby certify that Harvey Laughlin, William Dyke, R. I. Temple, George H. Butler, R. G. Rycroft, W. L. Beals, F. A. Knott, A. L. Slayton, F. A. Wallen, A. L. Enneu, W. E. Thompson. John McGee, J. C. Dim- mett, John B. Lemon, Henry Spreitzer, F. W. Carter, C. E. Albin, J. A. Dunn, L. R. Howell, Tom Mosley. W. C. Broady, E. H. Lookabaugh, Seymour Foose, and E. R. Taylor, the witnesses whose names are severally subscribed to the foregoing deposition and evidence were by me first duly sworn to testify the truth, the whole truth, and nothing but the truth in the said above entitled cause; that the depositions and evidence and testimony given by them, respec- tively subscribed, were reduced to writing by R. J. Carroll, a disinterested person, in my presence and subscribed by the respective witnesses in my presence; that the same was taken on the 26th, 27th. and 28th days of February, 1913, between the hours of 8 o'clock a. m. and 6 o'clock p. m. of said days at the Knights and Ladies of Security Hall, on the south side of Main street, in block 65 of Watonga, city of Watonga, county of Blaine, State of Oklahoma, as specified in the notice to take said evidence hereto attached; that I caused the testimony of the witnesses, together with the questions pro- pounded to them by Porter H. Morgan, one of the attorneys for the contestee, and the questions propounded by the Hon. A. L. Emery, attorney for the con- testant in said cause, together with the objections offered by said attorneys for the respective parties to be reduced to writing in my presence and in the presence of said attorney, and to be duly attested by the said witnesses respec- tively ; that I am not related to either of the parties in said cause and am not attorney for either of tbem, and I am not interested in the result of said action, financially or otherwise. [seal.] Theodore Graalman, Notary Public, Blaine County, State of Oklahoma. My commission expires January 17, 1915. 1B8 CAEISTEY vs. MORGAN. NOTICE TO TAKE DEPOSITIONS, The said John J. Carney and his attorneys of record, Giddings and Giddings, will take notice that on Monday, March 17, 1913, at the office of E. L. White, notary public, in and for the District of Colnmbia, United States of America, at the office of the said notary public, in the Pacific Building, No. 622 F street, northwest, in the city of Washington, D. C, between the hour of 8 a. m. and the hour of 6 p. m. of said day, the said contestee, Dick T. Morgan, will take the evidence of the following witnesses, said evidence and depositions to be used in the above entitled cause, to wit: Dick T. Morgan, residence, Woodward, Okla. Barritt Galloway, residence, Oklahoma City, Okla., and other witnesses. The said testimony and depositions and the taking of the same will be adjourned and continued from day to day at the same time and place before the same officer, and between the same hours until the same are completed. Dick T. Morgan, By Morgan & Detjpree, His Attorneys. Service of the above notice acknowledged to have been made upon the under- signed, and the receipt of a true and correct copy thereof acknowledged to have been received by the undersigned this the 10th day of March, 1913. Giddings & Giddings, Attorneys for Contestant. District of Columbia, ss: Be it remembered that under and in pursuance of the notice given and served in the above-entitled cause, the original of which is attached hereto and re- turned as a part hereof, at an examination of witnesses begun and held on the 17th day of March, in the year 1913, agreeably to the terms of said notice, personally came and appeared before me, E. I, White, a notary public for the District of Columbia, residing and acting in that office in said Dis- trict, at my office, in the Pacific Building, at No. 622 on F. Street NW., in the city of Washington, in said District, the within named Dick T. Morgan and Barritt Galloway, who, being produced as witnesses for and on behalf of the contestee, Dick T. Morgan, in the above-entitled cause, and being first severally and separately duly sworn and cautioned to tell the truth, the whole truth, and nothing but the truth touching matters at issue in the said above-entitled cause, did severally and separatedly depose and say as follows: Washington, D. C, Monday, March 17, 1913 — 2 o'clock p. m. Met pursuant to notice at the office of the notary, in the Pacific Building. Present : Louis T. Michener, Esq., on behalf of the contestee, Dick T. Morgan ; the contestee and witness, Dick T. Morgan ; and the witness, Barritt Galloway. No appearance of or on behalf of the contestant. Whereupon, DICK T. MORGAN, a witness of lawful age, called by and on behalf of the contestee, having been first duly sworn, is examined by — Mr. Michener : Q. State you name, age, and residence. — A. My name is Dick T. Mbrgan. My age is 59. My residence is Woodward, Okla. Q. What official position, if any, do you occupy? — A. Since March 4, 1909, I have been a Representative in the Congress of the United States from the second congressional district. State of Oklahoma, and was reelected to the Sixty-third Congress, which term of service began March 4, 1913. Q. The election you speak of was in November of last year? — A. The election took place the 5th day of November, 1912, and was the general election of tha.t year. Q. Of what political party were you a candidate then? — 'A. I was the candi- date of the Republican Party for Representative in Congress from the said district. Q. Who were your opponents? — ^A. My Democratic opponent was John J. Carney, and the Socialist candidate was P. D. McKenzie. Q. What political party had control of the election machinery of your State in that election? — ^A. The Democratic Party had control of all the election CARNEY VS. MOEGAN. 169 macliinery at that time and at that election in the State of Oklahoma. The governor of the State, who has been a Democrat since the statehood of Okla- homa, appoints the State election board, which consists of three persons, a majority of whom ai'e Democrats. The State election board appoints all county election boards, which consist of three persons, a majority of whom are Demo- crats, and a county election board appoints all precinct election boards, which consist of three persons, a majority of whom are Democrats. The Democrats of the State therefore have full charge and control of the entire election machinery of the State, from the State election board that grants the certificates of election to all State officers and Representatives in Congress down to the county and precinct election boards, which count the votes and certify the result from the precincts of the county and from county up to State election boards. Q. State whether or not you in any way, directly or indirectly, in person or through j'our friends, supporters, managers, or assistants, or through any political committee or any committeeman, or any other person, made any effort to induce negroes to vote at the November election, or encouraged negroes to vote' at the November election, or advised negroes to vote at the said election who were not qualified to vote under the constitution and the laws of the State of Oklahoma. — A. I did not. In the campaign previous to the election on the 5th of November. 1912, I did not personally advise a single negro to vote or nttempt to vote at said election unless he was qualified to vote under the con- stitution and the laws of the State of Oklahoma. I did not, directly or indi- rectly, through any of my friends, supporters, managers, or assistants, or through any political committee or committeeman, or any other person whatso- ever, make any effort to secure or induce negroes to vote at said election who were not qualifierl to vote under the constitution and laws of the State. As I understood the law, the responsibility of determining who were qualified electors at said election and who were entitled to vote at said election reste:! entirely with the election officers, who had been appointed under the laws of the State, and I made no effort whatever v»ath any election officers or officer to induce them to permit any person to vote who was not qualified under the constitution and laws of the State of Oklnhoma. I did not advise any person or persons to encourage, aid, or assist any person in voting or to vote who was not qualified to vote under the State law. In fact, in that campaign I paid no attention whatever to the matter of aiding or assisting or encouraging in any way any person or persons to vote on election day except what I might have, said in a general way in public speaking, advising all qualified electors to go to the polls and vote; but in no way, shape, or form did I participate in any effort or in any attempt to have any person, white or black, vote at said election who was not qualified to vote under the State laws. Q. State whether or not any negroes voted at that election with your knowl- edge and coiasent, or with your approval, or under your advice, who were not qualified to vote under the constitution and laws of the State of Oklahoma. — A. They did not. If there was a single negro in the second congressional dis- trict of the State of Oklahoma at the election of November 5, 1912, voted who WMS not qualified to vote under the constitution and laws of the State of Okla- homa he did so absolutely without my knowledge, consent, approval, and advice. And if there was a single election officer in the district who did not do his full duty and enforce the law he did so without my approval, consent, knowledge, or connivance. Q. In the notice of contest served on you by John J. Carney reference is made to what is known as the grandfather clause in your State constitution. Tou may state what that is and how it is generally understood. — A. In 1910 the consti- tution of the State of Oklahoma was amended, which in effect provided that no person should be registered as an elector or be allowed to vote in the State ■unless he was able to read and write any section of the constitution of the State of Oklahoma, with a proviso added to the foregoing that " No person who was on January 1, 1S66, or at any time prior thereto entitled to vote under any form of government," etc., " shall be denied the right to register to vote because of his inability to so read and write a section of the constitution." It is generally understood that the latter clause limits the first proposition to apply only to negroes, or, in other words, a person whose grandfather voted is entitled to vote under the constitution of the State of Oklahoma, notwithstanding the fact that he can not read and write. It is generally understood that this amendment to the constitution wi'.s intended to prevent negroes who could not read and write any section of the constitution of the State from voting. 170 CARNEY VS. MORGAN. Q. In the notice of contest served on you by the contestant, John J. Carney, reference is nuide to an alleged letter that was written by one Homer N. Boardman, United States attorney, together with a certain alleged printed circular, which was entitled " Talk it over with your wife, Mr. Election Official." Please state what knowledge you have, if any, of such alleged letter and circular, and state any and all things you know about the printing and circulation of said alleged circular, and what, if anything, you had to do with the same.— A. I had no knowledge whatever of said alleged" letter purported to have been written by Homer N. Boardman, United States attorney, or the alleged circular, until some time after the election held on the 5th of November, 1912. All I know about it now is through some reports that I have read In newspapers with reference thereto, and from knowledge I have received from the papers in this case. I do not know nersonnlly that any such letter was ever written by the said Homer N. Bo;irdm;in. I did not consult with said Board- man- about any such letter. He did not write any such letter with my knowl- edge, counsel, or advice, and if he worte any such letter it wns not written with my approval, advice, or consent. I had no knowledge whatever of the print- ing of the alleged circular referred to. The same was not printed with my knowledge, consent, or approval, and neither the said alleged letter or the said alleged circular were printed or circulated or published in any manner or form with my consent, knowledge, approval, or connivance. If such a letter was written, published, and circulated, or sent through the mails, or in any other way transmitted or delivered to any election officer or to election officers in my district, the said printing, circulation, and transmission through the mails was entirely and absolutely without my knowledge, consent, or approval. Such letter and circular I am sure was not printed or circulated by the com- mittee that had my campaign in charge, and so far as I have been able to ascertain no person connected in any way with the management, control, and direction of my campaign had anything whatever to do with the printing, the circulation, and distribution of any such letter or circular. Q. What, if anything, did you have to do with the registration of voters in the cities of your district? — A. I had nothing whatever to do with the regis- tration of voters In the second congressional district. Under the laws of the Stnte. as I understand them, in cities of the first class the voters must regis- ter in April preceding the election in order to be entitled to vote. No registra- tion, however, is required in the country precincts. The registration officers in the various cities are appointed by the election board, which in all cases in the State at the present time, and at the time of the election in November, 1912. were under the control of the Democrats of the State. In other words, the registration officers in each city, ward, and precinct were Democrats, and, as I imderstand the law, had full power to test the qualifications of every voter when he applied for registration. If there were any negroes or others who were re.glstered prior to the election in 1912 (in November, 1912) who were not qualified to vote under the constitution and laws of the State, it was done wholly and entirely without my knowledge or consent, and withoat my approval. Neither myself nor my friends, nor anyone acting for or in behalf of me, or with my knowledge, consent, or approval, made any attempt whatever to get any person, white or black, to be registered who was not legally qualified to vote. Q. Who received the certificate of election as Representative in Congress from that district after the election was held last November? — A. The Scale election board delivered to me the certificate of election as Representative from the second congressional district in the State of Oklahoma in the Sixty-'hird Congress, and I delivered the same to the Clerk of the House of Representatives in the United States Congress. Q. Do you know anything ■v\^hatever about any election officer being intimi- dated by the letter or circular referred to in a previous question? — A. I do not If any election officer in the second district was in any way intimidated by any letter or circular received through the mails or otherwise or by the act of any prson or persons, the same was without my knowledge and consent, for I in no way was a party to any attempt to influence or control or intimi- date anv election officer in the performance of his duty. Q. I will ask you if you have read the notice of contest served upon you or your attorneys by the contestant, John J. Carney, and if you are familiar with the charges and allegations therein made with reference to any fraud, irregu- larity, or illegal voting at any and all places throughout the second congres- sional district?— A. I am. I have read the copy that was served upon my CAKNEY VS. MORGAN. 17 1 attorneys, and I am familiar with the various allegations and charges made therein. I desire to state that if there was a single illegal vote cast in said district at the election held on the 5th of November, 1912, the same was cast without my knowledge or consent, or connivance or approval. I therefore wish to state in general that so far as anything I did was concerned or that anything that was done with my approval or consent by anyone in my behalf was concerned, there was not a single person cast an illegal vote in that con- gressional district at said election. Q. You maj^ describe the political machinery that you have in your con- gressional district, so far as tbe Republicans are concerned, for conducting your congressional campaign. — A. Under the law and custom there is one con- gressional committeeman for each county in the congressional district, and these various committeemen constitute what is kriown as the congressional committee of the district. The committee meets and elects its own chairman, secretary, and treasurer. This committee does not get its power from the can- didate, and its election is not controlled by the candidate. The committee is supposed during the campaign to have general charge of the campaign in behalf of the Republican Party for the election of a Republican Congressman from that district. Q. In the second paragraph of the notice of contest there is set forth whnt contestant claims to be the number of votes received by you and by him. Is that statement correct? If not, you may state the exact number received by each. — A. The information which I have. I have of course obtained from exam- ining the returns from the vnrious counties and from reports received from the A^arious counties in the congressional district. As I understand, according to the count of the State election board, on, the face of the returns I had 663 plurality vote in the district over the contestant. John J. Carney. However, to this should be added 490 votes in Oklahoma County, and 214 votes from Blaine County, which were not certified or counted by the State election board, and yet to which I was justly entitled. If you add to the 663 votes 490 addi- tional votes in Oldahoma County find 214 votes in Blaine County, which were cast for me but not counted, it would give me a plurality over John J. Carney in the district of 1.367 votes. I am giving this from the information which I have, but legal evidence thereof will I presume be placed in the record and will be found elsewhere. Dick T. Morgan. Subscribed and sworn to this 17th day of March. A. D. 1913, before me, a notary public in and for the District of Columbia. [SEAL.] E. L. White, 'Notary Public for the District of ColumMa. And on the same day and at the same place — BARRITT galloway, a witness of lawful age. called by and on behalf of the contestee. having been first duly sworn, is examined by — ■ Mr. Morgan : Q. State your name, age, residence, and occupation. — A. Andrew Barritt Galloway, aged 23 years, residence Oklahoma City, Okla. ; occupation, private secretary to Representative Dick T. Morgan, from the second Oklahoma district. Q You have stated your full name. By what name are you commonly known? — A. Barritt Galloway. Q. You may state what position, if any. you held in the Republican political organization of the second congressional district in the State of Oklahoma in the campaign of 1912. — A. I was secretary of the committee. Q. Where did the committee have headquarters? — A. In the Baum Building, at Oklahoma City. Q. As secretary of said committee, you may state what, if anything, you had to do with the management, direction, and control of said campaign in behalf of the election of Dick T. Morgan as Rtepublican candidate to Congress from said district? — A. I will state that Mr. Gus Hadwidger, who was the chairman of the committee at the beginning of the campaign, spent something like a week at the headquarters, after which he left for his home at Alva, Okla. From that time until the close of the campaign I had charge of the headquarters ; that the distribution and circulation of all printed matter that was sent out from the headquarters went out under my direction ; that the clerks and stenog- raphers in the headquarters were under my direction. 172 CARNEY VS. MORGAjST. Q. Who. if anybody, was associated with you at said headquarters in aiding and assisting in directing said campaign in behalf of said Dicli T. Morgan? — A. Porter H. Morgan. Q. What relation is he to Dick T. Morgan? — A. He is a son of Dick T. Morgan. Q. Was your relation to the management of said campaign and your knowl- edge of what was done by said committee in said headquarters such as would enable you to know what campaign matter and all campaign matter and ma- terial that was sent out during said campaign from said headquarters? — A. It was. Q. State what opportunities you had for knowing what matter was mailed and distributed in any manner by said congressional committee. — A. I will state that I was in the headquarters each day during the campaign; that I had knowledge of all matter in the way of publications and pamphlets and letters which were distributed or circulated from the headquarters; that I laid out the work of such circulation and distribution and directed the sending out of such matter. Q. I will ask you if you have read the allegation in the notice of contest that was ser^^ed in this case by John J. Carney upon Dick T. Morgan, and that portion of said notice in which it is alleged that a certain letter was written by Homer N. Boardman, United States attorney, and that a certain alleged circular was printed which was entitled, " Talk it over with your wife, Mr. Election Official," and a charge that said alleged letter and said alleged circular was sent to the election officers of the said congressional district with the view and purpose of intimidating said election officers aiid thus preventing them from enforcing what is kno^m as the "grandfather clause" of the State constitution as against negro voters? — ^A. I have read the same. Q. You may state whether or hot said alleged letter or any similar letter was printed, or circulated, or mailed by the Republican congressional committee of the second district of Oklahoma at any time during said campaign prior to November 6, 1912. — A No such letter was printed, circulated, or mailed from the headquarters under my direction or with my consent or knowledge. Q. Do you know whether or not such letter was printed, circulated, or mailed by said committee from said headquarters? — A. I know that no such letter was printed thei-e or circulated from said headquarters. Q. I will ask you to state if the alleged circular entitled " Talk it over with your wife, Mr. Election Officer." was printed, mailed, or distributed by the Republican congressional committee from said headquarters? — A. No such cir- cular was printed, circulated, or mailed from the headquarters of the Repub- lican congressional committee of the second district. Q. State whether or not the Republican congressional committee had anything to do whatever, either with the writing, printing, circulation, or mailing of either the said alleged letter referred to or said alleged circular. — A. The com- mittee had nothing to do whatever with said letter or circular, to my knowledge. Andrew Bakritt Galloway. Subscribed and sworn to this 17th day of March, A. D. 1913, before me , a notary public in and for the District of Columbia. [seal.] E. L. White, Notanj Pvdlic for the District of Columbia. District of Columbia, ss: I. E. L. White, a notary public for the District of Columbia, do hereby certify that, in pursuance of the foregoing and annexed notice, the depositions of Dick T. Morgan and Barritt Galloway, hereto attached, were taken down in typewriting by a clerk by me appointed for that purpose in my presence and in the presence of the parties and their agents and attorneys attending as hereinbefore certified, from the statements when and as uttered by the respective deponents thereof, and were thereuiwn read over and subscribed by the respective deponents thereof in my presence. I further certify that my fee, amounting to $11. for taking, certifying, and returning said depositions have been paid to me by the contestee and that the same are .iust and reasonable. And I further certify that I am not of counsel for either of the parties to, nor in anywise interested in, said cause or the result thereof. In testimony whereof I have hereunto set my hand and affixed my seal of office this 31st day of March, A. D. 1913. [seal.] E. L. White* Notary PnWc for the District of Columbia. CAENEY VS. MORGAN. 173 NOTICE TO TAKE DEPOSITIONS. Tlie said. John J. Carney and Giddings & Giddings, his attorneys of record, will take notice that on the 19th day of March, 1913, at the office of Morgan & Deupree, at rooms numbered 421-2-3, American National Bank Building, in Oklahoma City, Oklahoma County, State of Oklahoma, before Mary S. Stotler, a notary public iu and for Oklahoma County, State of Oklahoma, between the hours of S o'clock a. m. and 6 o'clock p. m. of said day, the said contestee, Dick T. Morgan, will take the evidence of the following-named witnesses, the said evidence of the said witnesses to be used in the above-entitled cause, and that the taking of the said evidence and depositions will be continued and adjourned from day to day between the same hours at the same place and before the same officer until the same is completed, the names and addresses and resi- dence of the said witnesses being as follows : Porter H. Morgan, 2228 West Fourteenth Street, Oklahoma City, Oklahoma County, State of Oklahoma ; W. C. Broady, Okeene, Blaine County, State of Oklahoma ; Ben W. Riley, cornel Fourth and Walnut Streets, Oklahoma City, Oklahoma County, State of Okla- homa; B. O. Young, No. 1011 North Walber Street, Oklahoma City, Oklahoma County, State of Oklahoma. Dick T. Morgan, Contestee. By Morgan & Deupree, His Attorneys. Service of the above notice acknowledged to have been made upon the under- signed and the receipt of a true and correct copy thereof acknowledged to have been received by the undersigned this the 17th day of March, 1913. Giddings & Giddings, Attorneys for Contestant. depositions. Depositions of witnesses taken to be used in an action pending before the honorable House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee, in pursuance of the notice hereto attached and at the time and place therein stated, and the contestant appeared by his attorneys, Giddings & Gid- dings, and the contestee appeared by his attorneys, Morgan & Deupree, and thereupon the said contestee produced the following witnesses in order, to wit : W. G. BROADY, who, being first duly sworn to testify to the truth, the whole truth, and nothing but the truth, deposeth and saith in answer to ques- tions propounded to him. as follows, to. wit : Direct examination by Mr. Morgan : Q. State your name and residence. — A. W. C. Broady, Okeene, Blaine County, Okla. Q. What, if any, official position did you hold in Blaine County, State of Oklahoma at the last general State election held in Blaine County, State of Oklahoma, on the 5th day of November, 1912?- — A. Member of the county elec- tion board. Q. Of Blaine County?— A. Yes, sir. Q. Who were the other members of the connty election board of Blaine County, State of Oklahoma, at said time? — ^A. Dan Hogan, chairman, and Tom Moseley, secretary. Q. When, after said election, did the county election board of Blaine County meet, and where? — A. At the courthouse on the 5th of November. Q. At about what hour?- — A. About 6 o'clock, I suppose. Qi In the afternoon? — A. Yes, sir. Q. When, if at all, did you canvass the returns from the various precincts- in Blaine County of the vote cast in said precinct for the various candidates upon the State ticket? (Objected to by contestant as being incompetent, not the best evidence, the laws of the State of Oklahoma requiring that said election board shall keep the minutes of this proceeding.) A. We canvassed them on the 6th and 7th. Q. I will hand you this document and ask you to state what it is. — ^A. It is the official count of the returns returned by the precinct inspector of the county election board. Q. Of Blaine County, State of Oklahoma?— A. Yes, sir. 174 CARNEY VS. MOEGAN. Q. State fully just wben, by wbom, and by what method that sheet was made out. (Objected to for the same reason as above; not the best evidence.) A. This was made by Mr. Hogan and myself. Moseley was there in the office. Mr. Hogan done the pen work and I called off from the tally sheets. Q. Now, did you call from the tally sheets or from the returns handed in by the inspectors of the various precincts in Blaine County? — A. Well, it was the returns the inspectors handed in. Q. Did anyone besides yourself do any calling or reading? — A. I called off the figures and Mr. Hogan would put them down and he would call them, too, to be sure they were the same. Q. In whose handwriting are all of the figures in pen on that sheet? — A. Mr. Hogan's. Q. In whose handwriting are the pencil figures at the right of the pen fig- ures? — A. Mr. Hogan's. Q. After the figures in pen had been placed upon this sheet, what then was done? — A. We taken this to the adding machine and had it figured up. Q. And the pencil figures were taken from the adding machine total? — A. Yes, sir. Q. In whose handwriting are the words "T. W. Moseley" and the word "Blaine" and the figure "29" in the certificate at the bottom of this sheet? — A. It looks like Mr. Moseley's. Q. Whose signature is this at the bottom? — A. It is Mr. Moseley's. Q. Did you see him sign that? — A. Yes, sir; he signed it in the office. Q. At the time this sheet was made out were the cross marks at the top of the sheet on it? — A. Yes, sir. Q. I will ask you to examine carefully the figures on this sheet and will ask you to state whether or not this sheet and the figures thereon are in the same condition now as they were when placed thereon as you have described be- fore and whether or not there have been any changes or alterations made thereon? — A. Nothing except these cross marks. (Contestant asks the witness to answer the question yes or no.) (Comes now the contestee and asks that this sheet be marked " Contestee's Exhibit A" by the notary, and contestee now offers the same in evidence and asks that the notary make a true and correct and full and complete copy thereof, and that the same, certified to by said notary, be attached to the deposition of this witness and that it be made a part thereof.) (Objected to as incompetent, irrelevant and immaterial, not the best evidence, the laws of the State of Oklahoma requiring county election boards to keep minutes of proceedings and the law further requiring a seal of said county elec- tion board, and the purported exhibit having no seal nor any means by which it can be identified as the act of said county election board.) (Cross-examination. Mr. Dortch, of Giddings and Giddings, counsel for contestee. ) Q. You are the Republican member of that board, are you not? — A. Yes, sir. Q. Who is the chairman?— A. Mr. Hogan. Q. Who is the secretary? — A. Tom Moseley. Q. That board has a seal, has it not? — A. Yes, sir; I think it has. Q. Mr. Hogan and Mr. Moseley were indicted by the Federal grand jury, were they not, in connection with this? (Contestee objects to the question as incompetent, irrelevant, and immaterial, and as not the best evidence.) A. I think they were. Q. Don't you know that they are?— A. Well, I heard they were. (Comes now the contestee and moves to strike the question and the answer for the rea^son that the same is incompetent, irrelevant, and immaterial.) Q. Do yoju know Mr. Homer N. Boardman? — A. Yes, sir. Q. What official position does he hold, if any, at this time? (Objected to as improper cross-examination.) A. He is United States district attorney. Q. He is a resident of Blaine County, is he not?— A. He has been a resident of Blaine County. I don't know as he is now. Q. Did you appear as a witness in the prosecution against Moseley and Hogan before the Federal grand jury? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and im- proper cross-examination. • CAEISTEY VS. MOEGAN. 175 A. I was a witness before the grand jury. Q. Did you have this exhibit with you [referring to exhibit on table]? — A. No, sir. Q. Where did you get this exhibit? (Objected to as incompetent, irrelevant and immaterial, and improper cross- examination.) A. Where did I get it? Well, I brought it down to this office yesterday. I got it from Mr. Boardman. Q. State if you know where Mr. Boardman got it? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and im- proper cross-examination. A. I don't know where he got it. Q. When did you see it before yesterday, and where? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and im- proper cross-examination. A. I believe on the 7tla day of November, 1912, when we finished making it. Q. What became of it then? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and im- proper cross-examination. A. I seen it once afterwards in the county clerk's office in Blaine County. Q. For what reason did you get this from Mr. Boardman yesterday? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and im- proper cross-examination. A. Well, I happened to go to Mr. Boardman's office yesterday, and he sent it down here to be used in taking e^adence. He said he had promised it to Mr. Morgan. I didn't even know Mr. Boardman had it until I went to his office. Q. What did you go to his office for? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and as being improper cross-examination. A. I had no particular business, just a friendly call. Q. Did you discuss the case against Hogan and Moseley? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and im- proper cross-examination. A. No, sir; we didn't discuss the case, merely he told me they had a case against them; he didn't discuss the merits of the case. Q. Mr. Broady, did you ever see a letter sent to the county attorney of, I think, Blaine County, in regard to the validity of the so-called grandfather clause, and signed by Homer N. Boardman, United States district attorney? Mr. Morgan. Objected to for the reason that the same is incompetent, irrele- vant and immaterial, and improper cross-examination, and for the reason that the same is an attempt on the part of the contestant to prove statements and allegations contained in contestant's notice of contest. A. I never did. Q. Did you ever see any copy of this purported letter? Mr. Morgan. Objected to as incompetent, irrelevant and immaterial, and im- proper cross-examination. A. No, sir. W. C. Broady. Subscribed and sworn to before me this the 19th day of March, A. D. 1913. [seal.] Mary S. Stotler, 'Notary Public, Oklahoma Coimty. State of Oklahoma. My commission expires September 1, 1914. Testimony of BEN W. RILEY: And thereafter Hon. Ben W. Riley was produced, who, being first sworn to tell the tj'uth, the whole truth and nothing but the truth, deposeth and saith : Direct examination by Mr. Morgan : Q. State your name and residence? — A. Ben W. Riley, El Reno, Okla. Q. What if any official position do you now and did you hold in the State of Oklahoma during the months of November and December, 1912? — A. Sec- retary of the State election board. Q. Do you still hold this position? — A. Yes, sir. Q. As such officer, have you in your possession the returns made by the county election board of Blaine County, State of Oklahoma, of the result of the general election held in the State of Oklahoma on the 5th day of November, 176 CARNEY VS. MORGAN. 1912, of tlie vote cast for the candiclutes on the State ticket in said Blaine County of said day? — A. I have. Q. Will you please produce the same? ( Witness produces. ) Q. Is this Instrument which you produce the return made by the county election board of Blaine County of the said election? — A. It is. Q. Did you ever receive, or did the State election board ever receive, any returns of said election for said offices in said county of said election, except the one which you have now produced? — A. This is the only one. (Comes now the contestee and asks that this instrument be marked " Con- testee's Exhibit B," and that a true and correct full and complete copy be attached to the deposition of this witness, and the contestee now offers in evi- dence said Exhibit B. To which the contestant objects as incompetent, irrelevant, and immaterial. The contestee now asks that a true and correct copy of said Exhibit B be attached to the deposition of this witness and that said copy be certified by the notary to be a true and correct copy thereof.) Q. Handing you this instrument, I will ask you what it is. — A. The certified copy of the official returns from Blaine County. Q. Of the results of the election held on November 5, 1912, in said county as between candidates on the State ticket? — A. Yes. (Contestee now asks that this instrument be marked " Contestee's Exhibit C," and now offers the same in evidence. Ob.iected to as incompetent, irrelevant, and immaterial, not the besl" evidence, and for the further reason that the original certificate has not been properly identified, ?o as to show it to be the return of the county election board of Blaine County, the law of the State of Oklahoma requiring that said county election board have a seal and that such returns be attested by the seal.) Q. Mr. Riley, calling your attention to Exhibits B and C, I will ask you to state what, if any, difference there is between Exhibit C and Exhibit B. — A. Exhibit C does not contain the tabulated vote on State question No. 40 and State Question No. 45. It also does not contain the certificate of D. P. Hogan, chairman of the Blaine County election board, and T. W. Moseley, secretary of the Blaine County election board. Q. By consent of parties Exhibit C not containing or showing the certificate of the chairman and secretary of the county election board of Blaine County, I will ask you to read to the notary the certificate as it appears on Exhibit B. — A. " We, D. P. Hogan as chairman and T. W. ^Moseley as secretary of the Blaine County election boaixl. hereby certify that the above and foregoing is a true and correct canvas of the vote passed for each political party nominee for the various State oflSces and the vote for and against State questions Nos. 40 and 45 in the county of Blaine at the general election held Tuesday, the 5th day of November, A. D. 1912, as shown by the official returns of the various precinct election boards in said county. " We further certify that there was a total of mutilated challenged ballots all of which is now of record in our office. Dated this 6th day of November. A. D. 1912. D. P. Hogan, chairman ; T. W. Moseley, secretary." Q. With the exceptions to which you have just testified, Exhibit C is the same in all particulars as Exhibit B, is it? — ^A. Yes, sir. Cross-examination : Q, Mr. Riley is there any seal of the county election board? — A. The county is supposed to have a seal. Q. Is there any seal of the Blaine County board on this original certificate? — A. No, sir. Q. Do you personally know who made out that certificate there? — A. I don't know the signatui'e positive of either men. Q. I will ask you if in your opinion the name of D. P. Hogan and the name T. W. Moseley are not written in the same handwriting? Mr. Morgan. Objected to for the reason the same is incompetent, irrelevant, and immaterial, and for the further reason that the witness has not qualified as a handwi-iting expert. A. I should express my doubt as to their being signed by the same man. Q. That being your answer, I will ask you to examine Exhibit B, and state whether Hogan or Moseley made the other writings in said certificate? — A. I should judge the same man made out the tabulated vote. Whether Hogan made it out or Moseley made it out, I am unable to state. CARNEY VS. MOEGAlSr. 177 Q. I will ask you if wlietber in your opinion tlie certificate whicti you have just read into the record which contains in writing the names of D. C. Hogan and T. W. Moseley is not exactly similar to the alleged signature of D. T. Hogan and T. W. Moseley? — ^A. I should judge they were; that would be my opinion. Redirect examination : Q. Mr. Riley, in the matter of the race between John J. Carney and Dick T. Morgan, I will ask you whether or not in the casting up of the vote as between said parties and arriving at the total vote cast in the second congressional district of the State of Oklahoma as between them, you used the figures shown by Exhibit B?— A. Yes, sir. Q. And in that casting up of the vote did you make any allowance or figure in the vote cast in the following precincts in Blaine County. State of Oklahoma, to wit : Election precinct No. 6, Cedar Valley Township, and election precinct No. 8, Arapaho Township ; election precinct No. 9, East Dickson Township ; election precinct No. 10, West Lincoln Township; precinct 12, Logan Town- ship, and election precinct No. 13, Flynn Township ; election precinct No. 20, Watonga Township ; election precinct No. 23, Canton Township ; election pre- cinct No. 28, West Dickson Township ; election precinct No. 29, Carlton Town- ship ; and election precinct No. 30, in East Lincoln Township. (Objected to as incompetent, irrelevant, and immaterial conclusion; the election certificate itself is the best evidence.) A. No vote having been returned from those precincts, the boax'd took no consideration of them. Ben W. Riley. Subscribed and sworn to before me this 19th day of March, A. D. 1913. [seal.] Mary S. Stotler, Notary PuhUc, Oklahoma County, State of Oklahoma. My commission expires September 1, 1914. And thereupon the further taking of evidence was continued until 1.30 o'clock p. m. on the 19th day of March, 1913. Testimony of PORTER H. MORGAN: And thereupon, at 1.30 o'clock p. m., hearing was resumed, and Porter H. Morgan, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, deposeth and saith : Direct examination by Mr. Deupree: Q. State vour name and residence. — A. Porter H. Morgan, Oklahoma City, Okla. Q. Are you acquainted with Dick T. Morgan, contestee in the above-entitled cause? — A. Yes, sir. Q. Whfit, if any, relation are you to him? — A. I am his son. Q. During the campaign in the fall of 1912, and preceding the general election held in the State of Oklahoma on November 5, 3912, what, if any, position did you hold in the Republican congressional committee of the second congressional district of the State of Oklahoma, and what, if any, part did you take in the campaign relative to the candidacy of Dick T. Morgan for election as Congress- man in the second congressional district of the State of Oklahoma ? — A. From on or about the 20th day of September I was acting chairman of the Republican congressional committee in said district and acted as campaign manager for Dick T. Morgan, and acted in such capacity until the close of the campaign and until the affairs of the committee relative to the conduct of the campaign were settled up. Q. Handing you a carbon copy of the contestant's notice of contest, I will ask you to examine Exhibit B, which is attached to said notice of contest, and will ask you if you did, prior to the 5th day of November, 1912, see the original of said letter? — A. No, sir. Q. Did you see, prior to the 5th day of November, 1912, or on said day, copies thereof which were printed and which have heretofore been introduced in evi- dence by the contestant? — A. No, sir. Q. Did you at any time prior to or on the 5th day of November, 1912, see any copies of Exhibit B, attached to contestant's notice of contest? — A. As I remem- 4252—13 12 178 CARnSTEY VS. MOBGAN. ber it, I saw published in a newspaper about the 1st of November, 1912, a copy of this letter, but further than that I did not see any copies of the same. Q. Are you acquainted with Homer N. Boardman, United States district attox- ney for the western district of Oklahoma? — A. Yes. sir. Q. Did you talk with Mr. Boardman, prior to the 5th day of November, 1912, or on said day, relative to any letter of the sort shown at Exhibit B of contest- ant's notice of contest? — A. I did not. Mr. Boardman was in Lawton in Federal court most of the time during the three weeks preceding the 5th day of Novem- ber, 1912, and I did not talk with him prior to the day of the election relative to this letter or any other letter of that sort. Q. Did you or any other members of the committee have anything to do with the pi'intiug or circulation of this or anj^ other letters or circulars similar in character to Exhibit B, contestant's notice of contest? — ^A. No, sir. Q. Was the letter, as shown at contestant's Exhibit B to his notice of contest, written with your consent, your knowledge, or with your approbation, or did you enter into any conspiracy with anyone to write, have printed and circulated any such letter? — A. No, sir. Q. Did you know before the 5th day of November that the letter, a copy of which is attached to contestant's notice of contest and marked " Exhibit B," was being circulated among or sent to the precinct election officers or circulated among them ? — A. No, sir ; I did not. Q. Handing you a carbon copy of the contestant's notice of contest, I will ask you to examine Exhibit C thereof, and will ask you if you did, prior to the 5th day of November, 1912, see the original or any copy of said circular? — A. No, sir. Q. Did you see, prior to the 5th day of November, 1912, or on said day, copies thereof which were printed and which have heretofore been introduced in evi- dence by the contestant? — A. No, sir. Q. Did you at any time prior to or on the 5th daj' of November. 1912, see any copies of Exhibit C, which is attached to contestant's notice of contest? — A. I saM^ no copy of or original of the circular as shown as Exhibit C until a day or two after the election on the 5th day of November, 1912. Q. Did you talk with Mr. Homer N. Boardman prior to the 5th day of Novem- ber, 1912, or on said day relative to a circular of the sort shown as Exhibit C of the contestaiat's notice of contest? — A. I did not. Q. Did you or any other member or members of the congressional committee have anything to do with the printing or circulation of this or of any other circular similar in character to this Exhibit C? — A. No, sir. Q. Was this circular as shown as contestant's Exhibit C to his notice of con- test written or composed with your consent, knowledge, or approbation, or did you enter into any plan or conspiracy with anyone to write, compose, have printed, or circulated any such circular? — A. I did not. Q. Did you know before the 5th day of November, 1912, or on said date that such a circular had been composed, written, printed, or circulated among or sent to the precinct election officers in the second congressional district of the State of Oklahoma? — A. No, sir. Q. Are you one of the attorneys for the contestee, Dick T. Morgan, in this cause? — A. Yes; the firm of ^Morgan & Deupree, of which I am a member, are attorneys for the contestee, Dick T. Morgan. Q. Did you attend the taking of depositions at the office of Giddings & Gid- dings for and on behalf of the contestant, John J. Carney, during the month of February, 1913? — A. Yes; I was present at the taking of all of the testimony which the contestant took relative to the conduct of the election on the 5th day of November, 1912, in Oklahoma County, State of Oklahoma, Q. How was this evidence taken? — A. On the first morning of the taking of the evidence the evidence was taken in shorthand by J. M. Harkins. On the reconvening for the purpose of taking testimony after lunch and in the after- noon, I objected, as attorney for the contestee, to the taking of the testimony in shorthand by the stenographer, unless the evidence was reduced to writing in the presence of the witnesses and in the presence of the agents or attorneys of the parties and unless the evidence was duly attested by the witness giving the same at the time. Upon this objection being made by me there were seven pages of testimony taken by Mr. Harkins direct on the machine, these seven pages appearing in the testimony following page 39, these pages being numbered, respectively, 1, 2, 3, 4, 5, 6, 7. At the close of the taking of testimony on page 7 and just preceding the testimony shown on page 40 of said depositions, Mr. CAKISTEY VS. MORGAN. 179 E. J. Giddings, one of tlie attorneys for the contestant, came in and wanted to know what we were doing. Mr. Dortch. who had been conducting the examina- tion of the witnesses on behalf of contestant, said : "Mr. Morgan objected to taking the testimony in shorthand and we sent and got a machine." And there- upon Mr. Giddings said : " Well. I will stop this foolishness." And thereupon the reporter subscribed a written oath before the notary, Mary S. Hill, and all of the remainder of the evidence respecting the conduct of the election in Okla- homa County on the 5th day of November, 1912, was taken down in shorthand by Mr. Harkins, and none of the remainder of the evidence and none of the testimony of the witnesses thereafter and none of the questions proposed by the parties or their agents was reduced to writing in the presence of the notary public, Mary S. Hill, nor was it reduced to writing in the presence of the parties or their agents, and I was there as agent for and attorney for the contestee, Dick T. Morgan, while all the remainder of this evidence was taken, and none of the evidence whatever was attested by the witnesses who gave the same. Q. Are you an attorney licensed to practice before all courts in the State of Oklahoma? — A. Yes. sir. Q. Are you actively engaged in the practice of lao' in the State of Oklahoma at this time? — A. Yes. sir. Q. How long have you been so engaged in the practice of law in the State of Oklahoma? — A. About five years. Q. Are you familiar with- the laws of the State of Oklahoma relative to elec- tions and the holding of elections in the State of Oklahoma? — A. Yes, sir. Q. 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MOEaAisr. 183 We, , as chairman, and T. W. Moseley, as secretary, of the Blaine County election board, hereby certify that the above and foregoing is a true and correct canvass of the vote cast for each political party nominee for the various State offices and the vote for and against State questions Nos. 40 and 45 in the county of Blaine at the general election held Tuesday, the 5th day of November, A. D. 1912. as shown by the official returns of the various precinct election boards in said county. We further certify that there was a total of 29 mutilated challenged ballots, all of which is now of record in our office. ^ — , Chairman. T. W. Moseley, Secretary. This 5th day of November. A. D. 1912. State of Oklahoma, Oklahoma County, ss: I, Mary S. Stotler, notary public in and for Oklahoma Couaty, State of Oklahoma, do hereby certify that the tabulated statement to which this certifi- cate is attached is a full, true, entire, complete, and correct copy of Exhibit B introduced in evidence by the contestee in the taking of depositions or evidence before me in the case now pending before the House of Representatives of the Sixt.v-third Congress of the United States of America, wherein John J. Carney is contestant, and Dick T. Morgan is contestee. except that the said tabulated statement does not contain the tabulated vote on State question No. 40 and State question No. 45, and does not contain or show the certificate of D. P. Hogan, chairman of the Blaine County election board, and T. W. Moseley, secretary of the Blaine County election board, which said certificate reads, as is testified to by Ben W. Riley, on page 9 of said depositions; and I further certify that the tabulated statement to which this certificate is attached is a true, correct, complete, and entire copy of Exhibit C introduced in evidence by the contestee in the taking of depositions or evidence before me in the case now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Masy S. Stotlee, Notary Public of Oklahoma County, State of Oklahoma. My commission expires September 1, 1914. 184 CARNEY VS. MORGAN. •mojj ■VLJAOi BSno^BAV. 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CD rt >i m o D - Bag (D JHT3 IH t- C c3 C3 ffl ' o ■If'::; c3,Q M O ft.S C <" O Red O go a - •S -3 Ml o • 8-^ 186 CARNEY VS. MORGAN. I, Ben W. Riley, secretary of the State election board of the State of Okla- homa, do hereby certify that the above is a true and correct vote cast for State officers in Blaine County, in the State of Oklahoma, at the general election held in said State of Oklahoma on the 5th day of November, A. D. 1912, as shown by the official returns of the county election board of Blaine County, as now ap- pears of record in the office of the State Election Board of the State of Okla- homa. In testimony whereof I hereunto set my hand and affix the official seal of the State election board this the 19th day of March, A. D. 1913. [seal.] Ben W. Riley, Secretary State Election Board, Contestee's Exhibit D. atwater v. hassett et al. Supreme Court of Oklahoma, October 26, 1910. [Sjilal>us by the court.] 1. Statutes (sec. IIOJ) — Constitutional Law (sees. 6. 9) — Elections (sees. 7, lOi, 12) — Amendments to Constitution — Initiative — Titles of Stat- utes. (a) An act entitled 'An act carrying into effect provisions relating to the initiative and referendum ; prescribing the method of procedure for submitting and voting for proposed amendments to the constitution and other propositions, and prescribing the method of appeal from petitions filed or from the ballot title; repealing sections 6, 7, and 16 of article 1, chapter 44, of the Session Laws of Oklahoma, 1907-S," is not repugnant to section 57 of article 5 of the consti- tution. (h) Said act is neither repugnant to sections 2 and 3 of article 5 of the con- stitution, nor sections 1 and 3 of article 24 of the constitution of this State. (c) Section 4a of article 3 of the constitution, an amendment adopted at the election on the first Tuesday in August, A. D. 1910, is not invalid for the reason that it was submitted at the primary election held " throughout the State " at said time, and not at the general election to be held "throughout the State" for the election of State officers on the second Tuesday of said year. (d) Said section 4a of article 3, supra, is neither repugnant to sections 1 and 7 of article 3 nor section 6, article 1, or any other provision of the constitution. 2. Constitutional Law (sees. 206, 274, 215) — Elections (sees. 12, 11) — Equal Protection of Laws — Rights and Immunities — Republican Form of Government. (a) Said section 4a, article 3, constitution, supra, is neither in violation of the fourteenth nor the fifteenth amendment to the Federal Constitution. (b) Nor is said provision invalid on account of the following provision in section 3 of the enabling act : " * * * The constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence." [Additional syllabus by editorial staff.] 8. Constitutional Law (sec. 70) — Encroachment of Judiciary. Constitution, article 5. section 58, expressly providing that the legislature shall enact laws " for carrying into effect provisions relating to the initiative and referendum," courts will not revise such discretionary powers. Kane, J., dissenting in part. Error from district court, Oklahoma County ; John J. Carney, judge. Action between Joseph Atwater and W. T. Hassett and others. From the judgment Atwater brings error. Affirmed. Wiley Jones for plaintiff in error. C. B. Stuart and W. A. Ledbetter for defendants in error. Burford & Burford and Devereux and Hildreth amici curiae. Williams, J. The following questions are raided: (1) Is section 4a of article 3 of the constitution as adopted at the election on the first Tuesday in August, A. D. 1910, invalid for the reason that said amendment was submitted CARNEY VS. MORGAN. M7 at the primary election held " throughout the State " at said time, and not at the general election " tliroughout the State," for the election of State officers on the second Tuesdaj' of November, in said year, and was not submitted under any valid procedure for the amendment of said constitution? (2) The said l)rovision in violation of the fourteenth or fifteenth amendments of the Federal Constitution, or section 3 of the enabling act? 1. Said amendment was submitted by virtue of the act of March 17, 1910 (Sess. Laws, 1910, pp. 124, 125). This court, in re Slate question No. 10 (110 Pac, 647) held that said act became effective on the date of its passage and approval by the governor. It is urged, however, that the title of said act is violative of section 57 of article 5 of the constitution, and for that reason said act falls. The title of said act relates primarily to one subject only, namely, the " carrying into eft'ect provisions relating to the initiative and referendum " (Const., art. 5, sec. 58). By prescribing the method of procedure for submitting and voting for amendments to the constitution and other propositions under such initiative and referendum powers and a method of appeal from the action of the secretary of state relative to the valid title, etc., and repealing sections 6, 7, 16, of article 1, chapter 44, Session Laws, 1907-8, which were a part of the act of that session to " carry into effect the initiative and referendum provisions." This title appears not to be repugnant to article 5. section 57, of the constitution. (State Ex Rel. v. Hooker, County Judge. 22 Okla., 712, 98 Pac, 964; Rea, County Clerk r. Board of County Commrs. (recently decided but not yet officially reported), 112 Pac, — , 1.) It is 'further urged that said amendment is invalid for the reason that it was submitted by virtue of sections 1, 2, and 4, article 2, of said act (Sess. L;;ws. 1909. p. 124). which provides: " Sec. 1. If the legislature should desire to ascertain the sentiment of the people upon any proposed amendment to the Constitution, it maj', by concurrent resolution, suggest to the citizens of the State such proposition as an amend- ment to the constitution. Such resolution should set forth the proposed amend- ment in full and should the citizens of the State proceed to initiate such propo- sition within one year thereafter, then it shall be the duty of the secretary of state when the required petitions have been filed in his office to cause an at- tached copy thereof to be filed with the chairman of the State election board, together with a certificate of the fact that the proposition was originated by concurrent resolution of the legislature setting forth such resolution. " Sec. 2. All propositions first suggested to the people by the legislature, as provided by section 1 of this article, shall be printed by such election board, and they shall have the supervision of the printing of the ballots for such pro- posed amendment, and such proposition shall be printed either on a separate and independent ballot or upon the ballot upon which the names of candidates appear, should such election occur upon the day when candidates are being voted for : Provided, however. That the State election board shall not be em- powered to change the form of any ballot as prescribed by the legislature. Should such title be printed upon ballots containing the names of candidates such boai'd shall cause such proposition to appear immediately following the names of such candidates. If separate ballots are used at such election for county candidates, only local propositions can be printed thereon. All State- wide or district propositions shall be printed only upon the State ballots. Such election board shall cause the said title of each proposition to be printed, followed by the words " For the amendment," which words shall be in a separate paragraph and at least one-fourth of an inch below such title. Said words shall have no distinguishing marks about them." " Sec 4. Electors shall vote upon all propositions submitted under the pro- visions of this act, and which were first suggested by concurrent resolution of the legislature, in the following manner : Should the elector desire to vote for the proposed amendment he shall leave the words ' For the amendment,' intact without ei'asing same. But should he desire to vote against such proposition he shall strike out the words, ' For the amendment.' with a pencil mark. When such words are so erased after any proposition, the ballot shall be recorded as having been cast against the same, and whenever they are not so erased, such ballot shall be recorded as having been voted for such proposition." Section 3 of article 5 of the constitution provides : "All elections on measures referred to the people of the State shall be had at the next election held through- out the State, except when the legislature or the governor shall order a special election for the express purpose of making such reference." Section 1. article 3. page 270, Session Laws, 1909, provides : " Whenever any measure shall be initiated by the people in the manner provided by law, or 188 CAEISTEY VS. MOKGAIST. whenever the referendum shall be demanded against any measure passed by the legislature, the governor shall have the power, in his discretion, to call a special election to vote upon such question." Section 1 of article 24 of the constitution provides : "Any amendment or amendments to this constitution may be proposed in either branch of the legis- lature, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their approval or rejection at the next regular general election, except when the legislature, by two-thirds vote of eacL house, shall order a special election for that purpose. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this constitution. If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately." Section 3 of article 24 provides : " This article shall not impair this right of the people to amend this constitution by a vote upon an initiative petition therefor." This amendment not having been submitted by virtue of section 1, article 24, supra, the same has no application to this case. Said amendment was sub- mitted on an initiative petition. Under section 3, article 5, constitution, said amendment was required to be submitted " at the next election held throughout the State." Further, the governor issued his proclamation calling an election for said date at which said proposed amendment was to be submitted. It has been time and again held by this court that the initiative and referen- dum provisions as contained in the constitution of this State were not self- explanatory. (Ex parte Wagner, 21 Okla., 33, 95 Pac, 435 ; Norris et al. v. Cross, 25 Okla., 287, 105 Pac, 1000; Threadgill et al. v. Cross, 109 Pac, 558; In re Initiative State Question No. 10, 110 Pac, 647.) Was said amendment sub- mitted in a manner contrary to some provision of our constitution? It was pro- vided that there should be printed upon the ballot, " For the amendment," and those desiring to vote in favor of the amendment should vote the ballot in that form, and those desiring to vote against it should strike out the words, " For the amendment," with a pencil mark. Section 7 of article 3 of the constitution provides that elections in this State " shall be free and equal." A similar pro- vision was contained in the constitution of Pennsylvania (Const., 1838, art. 9, sec. 5 ; Const, 1873, art. 1, sec. 5 ; Oregon, Const., 1857, art. 2, sec. 1 ; and Illinois, Const.. 1870, art. 2, sec. 18.) In Patterson v. Barlow (60 Pa., 54) it is said: "The constitution appoints the time of the general election, prescribes the qualifications of voters, and enjoins the ballot ; and for the rest the law must provide. * * * Then that election is free and equal where all the qualified electors of the precinct are carefully distinguished from the unqualified, and are protected in the right to deposit their ballots in safety, and unprejudiced by fraud." At nisi prius Judge Sharswood (60 Pa., at page 63) said: "I propose to consider what was meant both by the freedom and the equality of elections, and then apply the declara- tion of the constitution as thus interpreted to the act of assembly, the validity of which is now brought in question. By declaring that elections shall be equal, I think that it was evidently intended to provide that the regulations for conducting them should be uniform, and that no distinctions, especially as to the evidence I'equired to prove the elective franchise, should ever be made be- tween one class of citizens and another — between those residing in one place and those residing in another. If equality of elections does not mean this, it means nothing." This identical language is quoted with approval in Grinnell v. Hoff- man (116 111., 587; 5 N. E., 596; 8 N. E'., 788; 56 Am. Rep.. 793). In De Walt v. Bartley (146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, 28 A. M. St. Rep. 814), Chief Justice Paxson, in delivering the unanimous opinion of the court, said; "The act provides for a secret ballot. That is manifestly its main purpose, and it is in entire harmony with article 1, section 5, constitution, which declares that ' elections shall be free and equal '. This means that every citizen shall have an equal right to cast a free ballot. This is the letter of the constitution, and it is a right which no legislature can interfere with. The spirit of the constitution requires that each voter shall be permitted to cast a free and unintimidated ballot. This the act of 1891 was intended to secure. An election, to be free, must be without coercion of every description. An elec- tion may be held in strict accordance with every legal requirement as to form, yet If, in point of fact, the voter casts the ballot as the result of intimidation; CARNEY VS. MORGAN. 189 If he is deterred from the exercise of his free will by means of any influence whatever, although there be neither violence nor physical coercion, it is not a free and equal election within the spirit of the constitution. The framers of the act in question have evidently reached the conclusion that the only adequate guaranty of free and equal elections, within the letter and spirit of the con- stitution, is absolute secrecy. They therefore have provided a secret ballot." In State ex rel v. Richardson (48 Or. 309, 85 Pac. 225, 8 L. R. A. (N. S.) 362), it is said: " It is maintained that the act under consideration is violative of section 1, article 2, of the organic law of the State, which is as follows: 'All elections shall be free and equal.' No qualified elector was prevented by any means whatever, so far as disclosed by the transcript, from freely voting to adopt or reject the local-option law, or deprived of having his vote counted as cast, and, if he exercised the right of suffrage on this particular occasion, his opportunity was equal to that of all other persons voting, and hence the act does not contravene the clause of the constitution invoked to defeat it. (10 Am. & Eng. Enc. Law (2d ed.) 583)". This identical question seems to have been passed upon by the Supreme Court of Alabama, which had substantially the same constitutional provision as ex- isted in Oklahoma. Section 2 of article 1 of the Alabama constitution of 1875 provides : " That all persons resident of this State, born in the United States, or naturalized, or who shall have legally declared their intention to become citizens of the United States, are hereby declared citizens of the State of Alabama, possessing equal civil and political rights." Section 38 of the same article further provides: "No educational or property qualification for suffrage or office, nor any restraint upon the same, on account of race, color, or pre- vious condition of servitude, shall be made by law." Section 1, article 17, provides: "The general assembly may, whenever two-thirds of each house shall deem it necessary, propose amendments to this constitution, which, hav- ing been read three times on three successive days, shall be duly published, in such manner as the general assembly may direct, at least three months before the next general election for representatives, for the consideration of the peo- ple; and it shall be the duty of the several returning officers, at the next gen- eral election which shall be held for representatives, to open a poll for the vote of the qualified electors on the proposed amendments, and to make a return of said vote to the secretary of State; and if it shall thereupon appear that a majority of all the qualified electors of the State, who voted for representa- tives, voted in favor of the proposed amendments, said amendments shall be valid to all intents and purposes as parts of this constitution, and the results of such election shall be made known by proclamation of the governor." In May & Thomas Hardware Co. i'. Mayor, etc., of Birmingham, (123 Ala., 306, 26 South, 587), the late Chief Justice McClellan, in delivering the unani- mous opinion of the court, said, after having quoted at length section 1, article 17 : " Under and in supposed conformity to this organic provision, the general assembly of 1896-97 passed 'An act to submit to the people of the State at the general election to be held on the first Monday in August, 1898, for representa- tives, for their consideration, an amendment to section 7, article 11 of the con- stitution, providing a special tax of one-half of 1 per centum for the city of Birmingham, to be applied to the payment of interest on the bonds of said city, and for a sinking fund to pay off said bonds at the maturity thereof.' (Laws 1896-7, p. 1202.) * * * " The position of the appellant, as we understand it, is that section 3 of the act is unconstitutional and void, and that, of consequence, the amendment de- clared to have been adopted at the election held under it is likewise void, for that: First, that section violates the spirit and purpose of section 1 of article 17 of the constitution, quoted above, which requires to the validity of an amend- ment that a majority of all the qualified voters voting at the election shall vote in favor of the proposed amendment ; and, second, that the statute, or rather said section 3 thereof, is violative of section 1 of article 8 of the consti- tution, which prescribes the ' qualifications of electors, and guarantees to every citizen possessing the prescribed qualifications the right to vote at every election by the people.' And the argument in support of the first proposition is, in the brief of appellant's counsel, thus epitomized: '(a) Under the provisions of the statute, the amendment might be declared adopted, although a majority of all the qualified voters of the State who voted at the election had no intention, when they voted for State and county officers, to vote upon the proposed amend- ment, or did not manifest any intention to vote for the amendment, or desired to 190 CAI^I^^EY VS. MORGAN. refrain from voting on the proposition. (&) The provisions of the statute render it impossible to ascertain with certainty whether a majority of all the electors of the State who voted at the election actually and affirmatively voted for the amendment, within the spirit and meaning of the constitution, (c) The constitution requires positive, affirmative acton on the part of the elector to manifest an intention to vote in favor of the amendment, and no action to manifest an intention to vote against it. This statute requires positive, affirma- tive action on the part of the elector to manifest an intention to vote against the amendment, and no affirmative action to manifest an intention to vote in favor of it. (4) The constitution presumes that every elector who votes for any State or county officer at the election, but fails to vote, or for any reason refrains from voting, on the proposition to amend, is against the amendment, and, in effect, requires his ballot for State and county officers to be counted as a vote Mg;^,iust the amendment. This statute assumes that every elector who does not wish to vote directly against the amendment by strilving out the words, " For Birmingham amendment," will vote in favor of it, and requires his ballot to be counted in favor of the amendment, although he may have had no intention to vote in favor of it, or any knowledge that any such proposition was pending to be voted on.' " It may well be assumed that the foregoing skeleton of counsel's argument presents every consideration worthj' of attention against the validity of this statute, under section 1 of article 17 of the constitution. Certainly no other plausible objection to its integrity occurs to us; and, upon the positions taken by them, we will consider this part of the case. In the outset it is, of course, to be admitted that it is essential to the adoption of any proposed amendment to the constitution that a majority of the electors voting at the election at which the proposition is submitted should vote for the amendment. That is the plain requirement of the organic law ; and, of course, any statute which undertook to provide for the adoption of such an amendment upon a less number of favor- ing votes than a majority of those so voting, or which made it possible, in legal contemplation, for the amendment to rest upon the favoring votes of a minority of the electors so voting, would be violative of the constitution and void. It is further to be taken for granted that a vote for a proposition necessarily im- plied the expression of the voter's opinion, position, or preference in favor of or for that proposition; and a statute which authorizes or admits of thecoimt- ing for a proposed amendment to the constitution a ballot which does not in- volve, directly, or by necessary implication, such expression favorable thereto, would be invalid and of no effect. And so the inquiry in this connection is whether this statute authorizes or admits of the counting for this amendment of ballots which can be said not to evidence the voters' predilection for and intention to support the amendment, or rather, which can not be said to mani- fest such predilection and intention. We do not think the enactment authorizes or admits of any such thing. Every voter is presumed to know what is on any ballot he deposits as an expression of his will upon men and measures sub- hiitted for his consideration and action as an elector. Every voter who can read does know what his ballot contains. And the law furnishes the illiterate voter with easy and convenient means of information as to what his ballot con- tains, and, when he deposits it, the presumption of law is that he, as well as his educated fellow elector, knows what is upon it and has expressed the desire as between candidates and upon propositions which the paper indicates. This presumption of law is absolutely essential to popular government. The pre- sumption is indulged, because every practical means has been resorted to to acquaint the voter with the contents of his ballot, and he, in fact, does know its contents. If the fact were otherwise, the presumption could not exist, and government by ballot would be impossible. Until within a few years past it was, and for long had been, under the present and former constitutions, the law and practice for the names of only a certain set of candidates, the nominees of a political party, to appear upon a ballot. The voter who deposited such a ballot without erasing any of the names upon it thereby expressed his choice of all the persons whose names so appeared. If he wished not to vote for any person on the ticket he could do so only by striking out that name. If he wished to vote for a person for a particular office whose name did not appear on the ballot, he would have to strike out the candidate for that office whose name did appear, and substitute the name of the person of his choice. If he erased no name he was conclusively presumed to have voted for every person on the list. Or, when there has been no party nominations, and all candidates for a given office appeared on the same ballot, as frequently occurred, the voter CAKISTEY VS. MOEGAN. ' 191 had to erase the names of all the candidates except the one for whom he intended to vote ; and, if he left all the names on the ballot, he was held to have voted for the person whose name first appeared thereon ; and, that all candidates might have equal advantage in view of the law on this point, it was the custom to give priority on the ballot to each on an equal number of tickets, so that if A B and Y Z were candidates for an office, and 1,000 tickets were printed, the name of A B would appear first on 500 tickets, and that Y Z would appear first on the remaining 500. And, where there was a party ticket, and no erasure upon it, the conclusive presumption of law was that the voter intended to vote for every person whose name appeared to fill the olfice for which he was a candidate, as indicated by the ticket ; or, in other words, that he knew all that the ticket contained, and adopted it as the expression of his views, and there was really never any question of fact as to whether such tickets actually represented the intent of the voters — they always did. So where the names of two or more candidates for the same office appeared, and there was no erasure, the law held the voter to a knowledge that, imder the law, the first-named person would be credited with having received his A^ote; and while, as we have seen, there was some notion abroad, under this provi- sion of law and the practice, that in such case the person first named might be credited with votes which were not intended to be cast for him, or for the office at all, leading to the alternation of names through a series of tickets, yet it was never seriously questioned that such a ballot represented in point of fact the afiirmative choice of the voter for the first-named candidate. And such was the necessary and conclusive presumption of law based upon sub- stantial uniformity of fact. Affirmative manifestation of the voter's intent was as essential then as it is now: and it was then, and is now, as essential in respect of the election of officers as it was then, and is now, in respect of propo- sitions submitted to the electors. And it was then, and has always been, held that the necessary affirmative manifestation of intent is that manifestation which appears on the words of the ballot which the voter deposits, even when those Avords take on a peculiar meaning from their collocation by sheer force of a statute of which the voter might be entirely ignorant ; and all this, regard- less of the voter's illiteracy. How much stronger, then, and more fully justi- fied, is the presumption when a voter casts a ballot upon which is printed the information that an amendment to the constitution is to be voted upon, and that, if he deposits that ballot as it is, he expresses his favor for the amendment, when, to state this case, there is printed on the official ballot the words, " For Birmingham amendment " — hoAV much nearer to absolute cer- tainty is the implication that when the voter casts the ballot he intends it as an affirmative expression of his will, and that it is an affirmative manifestation of his purpose to support and favor the amendment? And this is all the con- stitution in respect of the adoption of such amendments requires: That the voter shall vote for the amendment; that he shall favor the adoption of the amendment ; and that he shall deposit a ballot which on its face, assuming knowledge on his part of its contents, evidences his wish that the proposed amendment should become part of the organic law. And so, indulging this presumption, because it is justified by the facts and is a sine qua non to govern- ment by the people, there is no difficulty in ascertaining with the same certainty that has always sufficed in elections whether a majority of the voters voting at the election provided for in this act ' actually and affirmatively voted for the amendment, within the spirit and meaning of the constitution.' Since the result is to be arrived at by counting for the amendment all the ballots which have the words, ' For Birmingham amendment,' intact upon them, and against it all those ballots from which those words have been erased, there is no danger of the adoption of the amendment being declared, although a majority of the voters had no intention to vote on or for the amendment : but to the con- trary, the ballots themselves conclusively evidence that manifestation of the voters' intention which the constitution requires. And this is all that the con- stitution does require — a majority of the votes cast at that election for the amendment. When there is such majority shown by affirmative ballots, the constitution is not concerned about the minority. If that minority desired not to vote at all on the proposition, and so to be counted against it, the fact that mider this act they had to vote one way or the other, had either to strike oft the amendment and so vote against it, or to leave it on and so vote for it, does not destroy the integrity of the majority of the whole vote at that election who have in legar contemplation affirmatively expressed their favor for the amend- ment. The whole argument for appellant on this part of the case, it seems to 192 CARNEY VS. MOEGAN. US, is at fault, in assuming that tile casting of a ballot upon wliicli are printed the words, ' For Birmingham amendment,' is not affirmative action on the part of the A^oter in favor of the amendment. That assumption being eliminated, the argument falls to the ground, and the conclusion we are asked, in this connection to draw against the law, has nothing to rest upon. "As part and in conclusion of our discussion of the case in this connection, we adopt an opinion upon it prepared by Judge R. W. Walker, at the instance of appellee's counsel. After stating the provisions of section 3 of the act, he says: 'The question submitted is — is there anything in the constitution of Alabama which prohibited the legislature from making the regulation contained in said section in respect of the preparation of the ballot and the manner of voting? In other words, was it competent for the legislature to prescribe that the words, " For Birmingham amendment," should be printed on the official ballots, and to declare that the leaving of said words upon the ballot shall be taken as a favorable vote, and the erasure or striking out of said words shall be taken as an adverse vote upon said amendment? The extent of the require- ments of the constitution of Alabama touching the method of voting upon a proposed amendment of that instrument is the provision that all elections by the people shall be by ballot and the provision for the opening of a poll for the vote of the qualified electors on the proposed amendment. These two pro- visions together amount simply to a requirement that a proposed amendment shall be submitted to the qualified electors of the State for their vote upon it by ballot. The constitution expressly remits to the general assembly the matter of regulating and governing elections by laws which are required to be uniform throughout the State. It can not be doubted that the form of the ballot and the method of indicating the voter's choice are matters for legisla- tive regulation. Of course it would not be competent for the legislature, under the gurse of regulations, to effect a practical denial of the free exercise of the elective franchise. But there can be no question of a regulation, really amount- ing to a deprivation, of the right to vote where the meaning of what is put upon the ballot required to be used by the voter is plain to a common under- standing and the method prescribed for the indication of his choice by the voter is easy to be comprehended and not difficult to be followed. It is certainly not unreasonable to assume that the voter is to inform himself of the contents of the ballot he casts where the meaning is obvious to one who can read and could not be misunderstood by an illiterate voter who seeks information as to what is upon the ballot put into his hands. The words. " For Birmingham amendment," printed in a conspicuous place upon the ballot in question, plainly indicate a choice in favor of the amendment. A voter casting a ballot known to have these words upon it must have understood that he was thereby expressing himself in favor of the amendment. If he wished to vote against the proposed amendment, all that was required was the erasure or striking out with pen or pencil of those words. The method prescribed by the statute for the voter indicating his choice to vote for or against the amendment was simplicity itself, and though that method varied from the one adopted in the recently enacted general election law, yet it was a method by no means unfamiliar to the electors of the State. As to the method of voting on this amendment, the legislature simply revived the old way, familiar to the people of casting an adverse vote, by " scratching the ticket." It seems that any sug- gestion against the validity of the provision in question must be based upon the assumption that it was not competent for the legislature to make a pro- vision in deference to the ballot which involves the possibility of a vote in favor of a person or proposition being the result of the voter's deliberate or negligent failure to inform himself of the contents of the ballot he casts and of the method prescribed by law for the indication of his choice. Any such assumption I regard as wholly unwarranted. Where the method of indicating his choice the one way or the other is plain and simple, the provision on the subject can not be rendered invalid by the mere possibility that, as the result of the carelessness of the voter, his act in casting his ballot may have an effect not actually contemplated by him.' "And so we conclude that the first objection to the act relied on, as stated in the beginning of this opinion by appellant's counsel, is untenable and unavailing. " Of the second ground of objection to the act above stated little, we think, need be said. It is, to repeat, that ' the statute violates section 1 of article S of the constitution, which fixes the qualifications of voters, and guarantees to every citizen possessing these qualifications the right to vote at every election by the people.' And the argument is that, inasmuch as the constitution does not CARNEY VS. MOEGAN. 193 i ' : ■ ' ' , • require the elector to vote upon all offices to be filled at an election, but only in respect of such as he desires, and that, as is insisted, the same principle obtains in respect of an amendment, so that the organic law contemplates that an elector voting for candidates for office may refrain from voting for amend- ments, this statute adds an additional qualification, in that it requires him to vote on this amendment as a necessary incident to his vote of offices, or, as said by counsel : ' The statute takes away from the elector his right, recognized by the constitution, to refrain from voting on the amendment, and at the same time to vote for the State and county offices to be filled at the election.' This position takes no account of the consideration that under any possible form of sub- mitting a proposed amendment to the people, every elector who votes for a State or county office at the election must, through the operation of the consti- tution itself, in effect, vote for or against the amendment. Article 17, section 1, provides, as we have seen, that an amendment must receive ' a majority of all the qualified electors of the State who vote at a general election to which it Is submitted' — a majority, not of those who vote on the amendment, but of those who deposit ballots for any purpose. Hence it is that if an elector votes for a State or county office, he necessarily votes on the amendment, for, though his ballot contains no reference to the amendment, he is counted against it. So that by the terms of the constitution itself he is deprived of the right to refrain from voting on an amendment if he votes for any State or county office ; and the statute can not be violative of the constitution for having this same operation and effect. The most that can be said of the statute in this connection is that under it it is easier for the elector to vote for the amend- ment than against it, in that to vote against it he is put to the physical exer- tion of drawing a pen or pencil through the words ' For Birmingham amend- ment,' and he may vote for it without doing this; and of this it is sufficient to say that such regulations have been several times, and we think correctly, held valid." (See also Cook v. State, 90 Tenn. 407, 16 S. W. 471, 13 L. R. A. 183; Ransom V. Black, 54 N. J. Law. 446. 24 Atl. 489, 16 L. R. A., 769 ; Ritchie v. Richards, 14 Utah 345, 47 Pac. 670.) What is the difference between where the names of the nominees of a polit- ical party are placed upon a ballot, all of whom are to be voted for by placing a cross in the circle under the emblem and the case at bar? The party that does not desire to vote a straight party ticket is required to place a cross in the square opposite the name of each person he desires to vote for. If the ballot form prescribed by said act of March 17, 1910, is invalid, the provision of law in this State permitting the party that desires to vote a straight party ticket to put a cross in the circle under the rooster, eagle, or other party emblem to indicate his intention of thereby voting for all of said candidates would be void, as the party who did not desire to vote a straight ticket would have an additional burden placed upon him, and the election laws existing under the Territory of Oklahoma, as well as such laws as now are in force, would be repugnant to the provisions of the constitution. This amendment was adopted by virtue of the initiative and referendum powers of the constitution (sees. 2 and 3, art. 5, and sec. 3, art. 24, const. Okla. ) . The petitions were prepared, filed, and submitted in accordance there- with. The initiative and referendum provision, not being self-enforcing (Ex parte Wagner, supra), legislation was essential. In cases where such amendments have been suggested by the legislature by concurrent resolution, a certain form of ballot is prescribed. It having been especially committed to the legislature to enact laws, " for carrying into effect provisions relating to the initiative and referendum" (art. 5, sec. 58, const.), courts will not revise such discretionary powers. ( State v. Shields. 4 Mo. App., 259 ; Okla. Citv v. Shields, 22 Okla.. 265; 100 Pac. 559. In re Menefee, Treas., 22 Okla.. 365; 97 Pac, 1014. Rakowski v. Wagoner, 24 Okla., 282; 103 Pac, 632. State v. Brown. Judge, 24 Okla., 433 : 103 Pac, 763. ) Such form of ballot having been prescribed in the valid exercise of its legislative discretion, this court can not revise same. So section 10, article 1, chapter 44, page 447, session laws 1907-8 does not apply to said submission under the initiative and referendum. Said amendment, having been legally adopted, seems to harmonize with all the provisions of the constitution of this State, unless it be section 6 of article 1. This section is merely declaratory of the fifteenth amendment to the Federal Constitution, and will be considered under svibdivision 2 of this opinion. As to all other provisions of the State constitution, said provision appears to 4252—13 13 194 CAENEY VS. MOKGAN. harmonize and to have been adopted in all respects in accordance therewith. 2 " * * * -^Q state shall make or enforce any law which shall abridge the privileges of immunities of citizens of the United States nor shall any State deprive anj^ person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Sec. 1, art. 14, Amendment to the Federal Constitution.) "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." (Sec. 1, art 15, Amendment to the Federal Con- stitution. ) Section 4a of article 3, supra, provides : " No person shall be registered as an elector of this State, or be allowed to vote in any election herein, unless he be able to read and write any section of the constitution of the State of Oklahoma ; but no person who was on January 1, 1866, or at any time prior thereto entitled to vote under any form of government, or who at that time resided in some foreign nation and no lineal descendant of such person shall be denied the right to register and vote because of his inability to so read and write sections of such constitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration provided registration be required. Should registration be dispensed with the provisions of this section shall be enforced by the present election officers when electors apply for ballots to vote." In Williams v. State of Mississippi (170 U. S., 220, 18 Sup. 583, 42 L. Ed., 1015), Mr. Justice McKenna, in delivering the unanimous opinion of the court, said, " It is not asserted by plaintiff in error that either the constitution of the State or its laws discriminate in terms agains the negro race, either as to the elective franchise or the privilege or duty of sitting on juries. These results, if we understand plaintiff in error, are alleged to be effected by the powers vested in certain administrative officers. Plaintiff in error says: ' Section 241 of the constitution of 1890 prescribes the qiialifications for electors; that residence in the State for two years, one year in the precinct of the applicant, must be effected; that he is 21 years or over of age, having paid all taxes legally due of him for two years prior to 1st day of February of the year he offers to vote; not having been convicted of theft, arson, rape, receiv- ing money or goods under false pretenses, bigamy, embezzlement. Section 242 of the constitution provides the mode of registration; that the legislature shall provide by law for registration of all persons entitled to vote at any election; that all persons offering to register shall take the oath; that they are not disqualified for voting by reason of any of the crimes named in the constitution of this State; that they will truly answer all questions pro- pounded to them concerning their antecedents so far as they relate to the applicant's right to vote, and also as to their residence before their citizen- ship in the district in which such application for registration is made.' The court readily sees the scheme. If the applicant swears, as he must do, that he is not disqualified by reason of the crimes specified, and that he has effected the required residence, what right has he to answer all questions as to his former residence? Section 244 of the constitution requires that the applicant for registration after January, 1892, shall be able to read any section of the constitution, or he shall be able to understand the same (being any section of the organic law) or give a reasonable interpretation thereof. Now, we submit that these provisions vest in the administrative officers the full power, under section 242. to ask all sorts of vain, impertinent questions, and it is with that officer to say whether the questions relate to the applicant's right to vote. This officer can reject whomsoever he chooses, and register whomsoever he chooses, for he is vested by the constitution with that power. Under section 244 it is left with the administrative officer to determine whether the applicant reads, understand, or interprets the section of the constitution designated. The officer is the sole judge of the examination of the applicant, and, even though the applicant be qualified, it is left with the officer to so determine; and the said officer can refuse him registration. To make the possible dereliction of the officers the dereliction of the constitution and laws, the remarks of the supreme court of the State are quoted by plaintiff In error as to their intent. The constitution provides for the payment of a poll tax, and by a section of the code its payment can not be compelled by a seizure and sale of property. We gather from the brief of counsel that its payment is a condition of the right to vote, and, in a case to test whether its payment was or was not optional (Ratliff v. Beale, 74 Miss., 247, 20 South, 865, 34 L. R. A., 472), the supreme court of the State said: 'Within the field of CARNEY VS. MORGAN". 195 permissible action under tlie limitations imposed by the Federal Constitution the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race.' And further the court said, speaking of the negro race : ' By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain peculiarities of habit, of temperament, and of character, which clearly distinguishes it as a race from that of the whites — a patient, docile people, but careless, landless, a migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites. Restrained by the Federal Constitution from discriminating against the negro race, the convention discriminated against its characteristics anrl the offenses to which its weaker members were prone.' But nothing tangible can be deduced from this. If weakness were to be taken advantage of, it was to be done ' within the field of permissible action luider the limitations imposed by the Federal Constitution,' and the means of it were the alleged characteristics of the negro race, not the administration of the law by the officers of the State. Besides the operation of the constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime." In Pope f. Williams et al. (193 U. S., 621; 24 Sup. Ct, 573; 48 L. Ed., 817), Mr. Justice Peckham, in delivering the opinion of the court, said : " The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. (Minor v. Happersett, 21 Wall., 162; 22 L. Ed., 627.) It may not be refused on account of race, color, or previous condition of servitude ; but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution. The State might provide that persons of foreign birth could vote without being naturalized, and, as stated by Mr. Chief Justice Waite in Minor v. Happersett (21 Wal., 162; 22 L. Ed., 627), such I)ersons were allowed to vote in several of the States upon having declared their intentions to become citizens of the United States. Some States permit women to vote ; others refuse them that privilege. A State, so far as the Federal Constitution is concerned, might provide by its own constitution and laws that none but native-born citizens should be permitted to vote, as the Federal Constitution does not. confer the right of suffrage upon anyone, and the conditions under which that right is to be exercised are matters for the States alone to prescribe, subject to the conditions of the Federal Constitution, already stated; although it may be observed that the right to vote for a Member of Congress is not derived exclusively from the State law. (See Const. U. S., art 1, sec. 2; Wiley v. Sinkler, 179 U. S., 58; 45 L. Ed., 84; 21 Sup. Ct, 17.) But the elector must be one entitled to vote under the State statute (Id., id.; see. also, Swafford v. Templeton, 185 U. S., 487, 491 ; 46 L. Ed., 1005, 1007 ; 22 Sup. Ct., 783.) In this case no question arises as to the right to vote for electors of President and Vice President and no decision is made thereon. The ^juestion whether the conditions prescribed by the State might be regarded by others as reasonable or unreasonable is not a Federal one. We do not wish to be understood, however, as intimating that the condition in this statute is unreasonable or in any way improper. We are unable to see any violation of the Federal Constitution in the provision of the State statute for the declara- tion of the intent of a person coming into the State before he can claim the right to be registered as a voter. The statute, so far as it provides con- ditions precedent to the exercise of the elective franchise within the State, by persons coming therein to reside (and that is as far as it is necessary to con- sider it in this case), is neitlier an unlawful discrimination against anyone in the situation of the plaintiff in error, nor does it deny to him the equal pro- tection of the laws, nor is it repugnant to any fundamental or inalienable rights of citizens of the United States, nor a violation of any implied guaranties of the Federal Constitution. The right of a State to legislate upon the subject of the elective franchise as to it may seem good, subject to the conditions already stated, being, as we believe, unassailable, we think it plain that the statute in question violates no right protected by the Federal Constitution. The reasons which may have impelled the State legislature to enact the statute in 196 CAENEY VS. MOEGAN. question were matters entirely for its consideration, and tliis court lias no con- cern with them." (See also Franklin v. South Carolina, 21S U. S., 161; 30 Sup. Ct.. 640; 54 L. Ed., — .) By this amendment, which was suggested by concurrent resolution of the Legislature of the State of Oklahoma and proposed by an initiative petition on the part of the qualified electors of said State, and afterwards adopted by a majority of the electors " voting at an election held throughout the State," and thereby declared by the legislature, recommending and at least 15 per cent of the qualified electors joining in said petition with a majority of those voting at said election, approving the same, that said limitations on the right of suffrage were reasonable and not violative of the Federal or State Constitution. As was said in the Mississippi case, this amendment does not on Its face discriminate between the races. Limitations on the right of suffrage existed in the States on January 1, 1866, as follows: Connecticut (Const. 1S36, art. S, as adopted in 1845), an elector to be qualified must " sustain a good moral character.'" Delaware (Const. 1831, art 4), electors, with certain exceptions, must have for two years next before the election paid a county tax, which shall have been assessed for over six months prior to said election. Massachusetts (Const. 1780, art. 3, adopted in 1822, as supplemented by art. 20 as adopted in 1857), an elector, with a few exceptions, must have paid by himself, his parent, master, or guardian, any State or county tax which shall have been assessed upon him, in any town or district of this Commonwealth, and, in addition thereto, must be able to read the constitution in the English language and write his name. Khode Island (Const. 1842, art. 2, sec. 1), an elector, with certain exception, must be " really and truly possessed in his own right of real estate," in a town or city " of the value of $134, over and above all incumbrances, or which shall rent for $7 per annum, over and above any rent, reserved or the interest of any incumbrances thereon," etc. And section 2 of said article further provides that electors to be qualified must also have paid " a tax or taxes assessed upon his estate within said State and within a year of the time of voting" to the amount of $1. Vermont (Const. 1793, ch. 1, art. 8; ch. 2, art. 39; and art. 1 of the amendment), an elector was required to be of good moral character, and have a " sufficient " evident, common interest with, and attachment to, the com- munity. Virginia (Const. 1864, art. 3, sec. 1), an elector must have first "paid all taxes assessed to him." In practically every State of the Union On January 1. 1866, persons were dis- qualified from voting who had been convicted of infamous crimes, unless such disqualification had been removed, etc. In addition, an alien residing in this country on January 1, 1866, neither having become a naturalized citizen nor having declared his intention to become a citizen of the United States, was not entitled to vote in any of the States. At that time there were many foreign Governments where the right of suffrage did not exist in any way, and in nearly all others where it existed at that time it was with many limitations. Such alien residing in the United States on January 1, 1866. neither being entitled to vote in the place of his residence nor under any organized government where he had previously resided or been a citizen of, and his descendants would also be subject to this educational qualification, coming within the excluded class as of the date of January 1, 1866. Further, the blanket Indians on January 1, 1866, had no organized form of government under which they might exercise the right of sufi^rage. The Cherokees, Chickasaws, Choctaws, Creeks, Osages, and Seminoles had such a government, and seem to have been the only tribes, the remnants of which now remain in this State, which had such a government. Again many States have similar existing suffrage limitations where the same have been enforced and recognized in the election of State officers and Members of Congress (Const. Ala., 1901, sec. 180, pars. 1, 2; Const. La., 1898, art. 197, sec. 5; Const. N. C, 1876, art. 6, sec. 1; Const. Va., 1902, sec. 19, pars. 1, 2 (Code, 1904, p. ccxii). Maine has a provision (amendment 29, adopted in 1892), as follows : " No person shall have the right to vote or be eligible to office under the constitution of this State, who shall not be able to read the consMtution in the English language and write his name ; Provided, however, That the provisions of this amendment shall not apply to any person prevented by a physical dis- ability from complying with the requisitions, nor to any person who now has the right to vote, nor to any person who shall be 60 years of age or upward at the time this amendment shall take effect." In the Maine provision the educational requirement is not to apply to any person then having the right to vote. The CAKJSTEY VS. MOEGAN. 197 Oklahoma provision, excluding from its operation persons having the right to vo"e en January 1, 1866, adopts the same principle, extending same so as to include their descendants. Paragraph 3 of section 1. article 7, Constitution of Minnesota, 1857, as amended November 3, 1868, provides as follows: "Persons of Indian blood, residing in this State, who have adopted the language, customs, and habits of civilization, affer an examination before any district court of the State, in such manner as may be provided by law. and shall have been pro- nounced by said court capable of enjoying the rights of citizenship within the State, shall be entitled to vote." In the following States, on and prior to the 1st day of January, A. D. 1866, negroes were eligible to vote: Vermont (Const, 1793, c. 1, art. 8, and chap. 2, sec. 39, and art. 1 of its amendments) : Massa- chusetts (Const., 1780, amend, arts. 3. 20^ ; New Hampshire (Const., 1792, Bill of Pdghts. art. 11) : Maine (Const.. 1819, art. 1, sec. 1) ; Rhode Island (Const., 1842, art. 2) : New York (Const. 1846. art. 2) ; Mich. (Const., 1850, art. 7) ; New Jersey (Const., 1683. art. 3; Const.. 1776, art. 4; Const., 1844. art 2). In the following other States free negroes were eligible to vote at different periods to January 1. 1866, to wit: Maryland (Const.. 1776, Bill of Rights, sec. 5) ; Hughes V. Jackson (12 Md., 450). Tennessee (Const, 1796, sec. 1, art 3). Texas (Const., 1836, sec. 11, art. 6; Const, 1845, sec. 2, art 1). South Carolina (Const., 1778, art. 41). Kentucky (Const., 1792, sec. 1, art. 3.) Delaware (Const. 1776, arts. 26, 27). Alabama (Const. 1819, sec. 1, art 1). North Carolina (Const. 1776, art 6). Connecticut (Chart., 1662; charter continued as constitution until 1818). Pennsylvania (Const., 1776. sec. 7, Decl. of Rights; Const., 1790, sec. 1, art 3). To say, because plaintiff or his ancestors, who were not entitled to vote under any organized form of government on or prior to January 1, 1866, or who were not then nonresident aliens having since come to the United States and become citizens of naturalization, that said amendment discriminates against them on account of race or color, is as unfounded as to say that a property qualifica<-ion discriminates on account of previous condition of servitude, for the reason that if a man had not been held in bondage he would have been able to acquire property, as a slave could not acquire property any more than he could vote. It is a matter of common knowledge that the population of this State is cosmopolitan, embracing people of every creed and race from practically every State in the Union. All of those persons who on January 1, 1866, or at any time prior thereto, were entitled to vote under any form of government or State or Territory of this Union, or who at that time residing in some foreign nation, afterwards came to the United States and by naturaliza<-ion became citi- zens of the United States and their lineal descendants, regardless of race or previous condition of servitude, are permitted to vote at the elections in this State without complying with the educational requirements of said provision. That is a classification based upon a reason; that is, that any person who was entitled to vo*^e under a form of government on or prior to said date is still pre- sumed to be qualified to exercise such right, and the presumption follows as to his offspring — that is, that the virtues and intelligence of the ancester will be imputed to his descendants, .lust as the iniquity of the fathers may be visited upon the children unto the third and fourth generation. But as to those who were not entitled to vote under any form of government on said date or at any prior time, and their descendants, there is no presumption in favor of their qualification, and the burden is upon them to show themselves qualified. This does not apply to any one race but to every race that falls within this disquali- fication. The alien who resided in some foreign country on the 1st day of January, 1866. who was not entitled to vote under that form of government, and who afterwards came to the United States and became naturalized, was required to undergo an examination to show himself qualified and fitted for citizenship, and v,'hen the courts of this Republic, or the different States thereof, exercising the powers of naturalization, have examined and passed upon his qualification, the presumption in favor of his qualification is recognized. The alien who resided in the United States on Januaiy 1. 1866. having not taken advantage of the opportuni*^y to become a citizen of this Republic, and who had not previously been a qiialified voter, under some form of government, falls T\n[thin the class upon whom the educational restriction is imposed. No alien or foreigner can become a qualified elector in this State unMl he has by naturali- zation become a citizen of the United States. The negro, previously a slave, who became a freeman, or has always been such, and resided in Massachusetts, Vermont, New Hampshire. Maine, Rhode Island, or New York, Michigan, New Jersey, and certain other States, as named, at such times that free negroes were 198 CARNEY VS. MORGAN. permitted to vote, and otherwise being eligible to vote, living on January 1, 1866, or his descendants who reside in this State, may vote under this provi- sion regardless of the educational requirement. As to the children of all elec- tors, however, it is now compulsory upon them to attend the public schools of this State, and thereby receive an education. (Art. 1, c. 34, pp. 393, 395, Sess. Laws, 1907-8.) But does this provision violate section 3 of the enabling act of Olslahoma of June 16, 1906 (ch. 3335, 34 Stat., p. 269), which provides that the constitu- tion adopted in this State " shall malie no distinction in civil or political rights on account of race or color " ? We think not. However, the people of this State, by section 1 of the bill of rights, have declared " that all political power is inherent in the people and government is instituted for their protection, security, and benefit and to promote their genei'al welfare, and they have the right to alter or reform the same whenever the public good may require it, provided such change be not repugnant to the Constitution of the United States." The State was erected and admitted into the Union under this constitution, which was passed on by the President of the United States and his procla- mation of admission issued thereon with such a declared reservation on the part of sovereignty. It is specifically provided in said section that the right to alter or reform the same whenever the public good may require it is limited by the proviso only to the extent that such alteration or revision shall not con- flict with the Constitution of the United States. It has time and again been held that if the constitution of a State contains any modifications of the pro- visions of the enabling act whereby the State has been formally admitted by the President and Congress into the Union the modification contained in the constitution controls. (Romine v. State et al.. 7 Wash., 215, 34 Pac, 924; Edwards v. Lesueur, 132 Mo., 410, 33 S. W. 1130, 31 L. R. A., 815 ; Williams v. Hert (C. C.) 110 Fed., 166; State of Montana v. Rice, 204 U. S., 291, 27 Sup. Ct, 281, 51 L. Ed., 490.) It is therefore not essential in this case to determine whether a provision in the enabling act accepted by an irrevocable ordinance on the part of the State, preliminary to admission, could have a continuing, bind- ing force upon the State after its erection and admission into the Union upon an equality with the other States so as to control the government in its sov- ereign capacity in the exercise of a purely governmental power. That part of section 3 of the enabling act provides that the convention " shall declare on behalf of the people of said proposed State that they adopt the Constitution of the United States; whereupon the said convention shall and is hereby authorized to form a constitution and State government for said proposed"^ State. Tbe constitution shall be republican in form and make no distinction in civil or political rights on account of race or color, and shall not be repugnant to the Constitution of the United States and Declaration of Independence." Section 4 of the enabling act provides : " * * * And if the constitution and government of said proposed State are republican in form, and if the provisions in this act have been complied with in the formation thereof, it shall be the duty of the President of the United States, within 20 days from the receipt of the certificate of the result of said election and the statement of votes cast thereon and a copy of said constitution, articles, propo- sitions, and ordinances, to issue his proclamation announcing the result of said election; and thereupon the proposed State of Oklahoma shall be deemed admitted by Congress into the Union, under and by virtue of this act, on an equal footing with the original States." The provision of section 3 was directed to the constitutional convention as to the character of constitution to frame, which having been so framed and adopted, the President was to issue his procla- mation thereon. It was not attempted to continue that part of the enabling act in force forever as an irrevocable limitation on the sovereign powers of the State in that respect. In Williams v. Mississippi, supra, it was said: " It can not be said, therefore, that the denial of the equal protection of the laws arises primarily from the constitution and laws of Mississippi, nor is there any sufficient allegation of an evil and discriminating administration of them. The only allegation is ' by granting a discretion to the said officers, as mentioned in the several sections of the constitution of the State, and the statute of the State adopted under the said constitution, the use of which dis- cretion can be and has been used by said officers in the said Washington County to the end here complained of. to wit, the abridgment of the elective franchise of the colored voters of Washington County, that such citizens are denied the right to be selected as jurors to serve in the circuit court of the county, and CAENEY VS. MORGAN. 199 that this denial to them of the right to equal protection and benefits of the laws of the State of Mississippi on account of their color and I'ace. resulting from the exercise of the discretion partial to the white citizens, is in accordance with and the purpose and intent of the framers of the present constitution of said State.' " It will be observed that there is nothing direct and definite in this allega- tion either as to means or time as affecting the proceedings against the accused. There is no charge against the officers to whom is submitted the selection of grand or petit jurors or those who procure the list of the jurors. There is an allegation of the purpose of the convention to disfranchise citizens of the col- ored race, but with this we have no concern unless the purpose is executed by the constitution or laws or by those who administer them. If it is done in the latter way, how or by what means should be shown. We gather from the statements of the motion that cei'tain officers are invested with discretion in maliing up lists of electors, and that this discretion can be and has been exer- cised against the colored race, and from these lists jurors are selected. The Supreme Court of Mississippi, however, decided, in a case presenting the same questions as the one at bar, ' that jurors are not selected from or with refer- ence to any lists furnished by such election officers.' (Dixon v. State, 74 Miss., 278, 20 South., S41, Nov. 9, 1896.) " We do not think that this case is brought within the ruling in Yicli Wo v. Hopkins, Sheriff (118 U. S., 356; 6 Sup. Ct., 1064; 30 L. Ed., 220). In that case the ordinances passed on discriminated against laundries conducted in wooden buildings. For the conduct of these the consent of the board of super- visors was required, and not for the conduct of laundries in brick or stone buildings. It was admitted that there were about 320 laundries in the city and county of San Francisco, of which 240 were owned and conducted by sub- jects of China, and of the whole number 310 were constructed of wood, the same material that constitutes nine-tenths of the houses of the city, and that the capital invested was not less than $200,000. " It was alleged that 150 Chinamen were arrested and not one of the persons who were conducting the other 80 laundries and who were not Chinan^en. It was also admitted * that petitioner and 200 of his countrymen similarly Situated petitioned the board of supervisors for permission to continue their business in the various houses which they had been occupying and using for laundries for more than 20 years, and such petitions were denied, and all the . petitions of those who were not Chinese, with one exception, that of Mrs. Mary Meagles, were granted.' The ordinances were attacked as being void on their face and as being within the prohibition of the fourteenth amendment, but, even if not so, that they were void by reason of their administration. Both contentions were sustained. Mr. Justice Matthews said that the ordinance drawn in ques- tion ' does not prescribe a rule and conditions for the regulation of the use of property for laundry purposes, to which all similarly situated may conform. It allows without restriction the use for such purposes of buildings of brick or stone; but as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business nor the situation and nature and adaption of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and on the other those from whom that consent is withheld, at their mere will and pleasure.' The ordi- nances, therefore, were on their face repugnant to the fourteenth amendment. The court, however, went further and said : ' This conclusion and the reasoning on which it is based are deductions from the face of the ordinance as to its nec- essary tendency and ultimate actual operation. In the present cases we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust*discrimination in the administration, for the cases present the ordinances in actual operation, and the facts shown establish an administration directed as exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been tbe intent of the ordinances as adopted, they are applied by the public authori- ties charged with their administration, and thus representing the State itself.- with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secure to the petitioners, as to all other persons, by the broad and benign provisions of the fourteenth amend- ment to the Constitution of the United States. Though the law itself be fair on 200 CAENEY VS. MORGAN". its face and impartial in appearance, yet if it is applied and administered by pub- lic authority \Yitb an evil eye and an unequal band, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to tbeir rights, the denial of equal justice is still within the prohibi- tion of the Constitution. This principle of interpretation has been sanctioned in Henderson v. Mayor of New York (Henderson r. Wickham), 92 IT. S., 259, 23 L. Ed.. 543; Chy Lung r. Freeman, 92 U. S.. 275, 23 L. Ed., 550; Ex parte Virginia. 100 U. S.. 339, 25 L. Ed., 676; Neal v. Delaware, 103 U S., 370, 26 L. Ed., 567 ; and Soon Hing v. Crowley, 113 U. S., 703. 5 Sup. Ct., 730, 28 L. Ed., 1145.' " This comment is not applicable to the constitution of Mississippi and its statutes. They do not on their face discriminate between the races, and it has not been shown that their actual administration wa^; evil, only that evil was possible under them." As was said by the Supreme Court of the United States in Pope v. Williams, supra, the reasons which may have impelled the people to adopt this amend- ment were matters entirely for their consideration, and this court has no con- cern with them. This amendment has never been put in operation, since its adoption, and how could it be "shown that their (its) actual administration was evil iintil the same is put in operation"? (Williams v. Mississippi, supra.) Every elec- tion officer is sworn not only to observe but also to obey the law, which includes this amendment. And the presumption is that they will fairly carry the law into effect. Should the election ofhcers knowingly and willfully exclude ne- groes from voting who are qualified to vote under section 4a, article 3, suffi- ciently in number, had all been counted for the next highest candidate, to have changed the result of the election, said election ATOuld be void. (Martin v. McGarr, recently decided but not yet officially reported, 112 Pa.. — .) The parties hereto in the argument have treated the questions as properly raised under this proceeding. Without passing on whether the proper remedy had been invoked for the purpose of this case we have assumed that such relief may be obtained by injunction. The judgment of the lower court is affirmed. Dunn, C. J., and Hayes and Turner, JJ., concur. Kane. L., concurs in the conclusion reached, but dissents from that part of the reasoning as to the enabling act. State of Oklahoma, OMaJwma County, ss: I, Mary S. Stotler, notary public in and for Oklahoma County, State of Okla- homa, do hereby certify that the above and foregoing pages, marked and num- bered, respectively, at the bottom of each page, 1 to IS, inclusive, is a full, true, correct, and complete copy of Exhibit D, introduced in evidence by the con- testee in the taking of depositions or evidence before me in the case now pend- ing before the House of Representatives of the Sixty-third Congress of the United States of America wherein John J. Carney is contestant and Dick T. Morgan is contestee. [seal.] Maky S. Stotler, 'Motary Public, OJclalioma County, Olcla. My commission expires September 1, 1914, Contestee's Exhibit E. ex parte show. Criminal Court of Appeals of Oklahoma, December 3. 1910. [S5-llabus by the Court.] 1. Habeas Corpus (sec. 30) — Grounds of Remedy. The general rule is that the writ of habeas corpus may not be used, either before or after conviction, to test the sufficiency of an indictment or informa- tion; but the rule is subject to the qualification that when the accusation is not merely defective, or technically insufficient, not merely demurrable or subject to a motion to quash, but is fundamentally defective in substance, so that it CAEISTEY VS. MOEGAISr. 201 ■changes a crime in lio manner or form and by no intendment, a party in custody to ans^Yer tliereto, or after conviction tliereon, will be discliarged on habeas corpus. 2. Constitutional Law (sec. 32) — Qualifications of Voters — Consteuction OF Constitution. Section 4a of article 3 of the State constitution, being an amendment adopted by the people at the election held on August 2, 1910. prescribing an educational qualification for certain voters, is self-executing. 3. Elections (sec. 223) — Qualifications of Votees — Deteemination. The question of a person's possession of the educational qualificatiou pre- scribed for voters by section 4a of article 3 of the State constitution is to be determined by the precinct election inspector having registration in charge, and at the time of registration, if registration is required ; and it is only when and where registration is dispensed with that such question is to be determined by the precinct election officers at the polls. 4. Elections (sec. 113) — Qualifications of Votees — Evidence — Registeation. Under article 8, chapter 31, Session Laws, 1907-8. registration is required in cities of the first class in this State, and electors therein, to be entitled to vote, are required to register during the month of July preceding each biennial pri- mary election held in August; but persons who become legal voters subsequent to such registration, and on or before the general election in November, may register during the last week in October preceding the general election in No- vember. 5. Elections (sec. 113) — Qualifications of Votees — Evidence — Registration. Since the act approved March 28. 1910. providing for the challenge of any voter, and further providing that after challenge, he may vote only upon making a certain affidavit therein prescribed, the registration provided for in article 8, chapter 31, Session T^aws, 1907-8, is only prima facie, and not conclusive, evi- dence of the possession of the qualifications mentioned in the subsequent act approved March 28, 1910. 6. Elections (sec. 113) — Qualifications of Voters — Evidence — Registration. Registration made in July, 1910, is no evidence of a person's possession of the educational qualificatoin prescribed for electors by the constitution;! 1 amend- ment adopted August 2. 1910; but registration made in October, r.)10. ()eing sub- sequent to the adoption of the amendment, establishes sueli qualification. 7. Elections (sec. 223) — Qualifications of Voters — Construction of Statutes. Section 4 of the act of the legislature approved March 28, 1910 (Laws, 1910, c. 116), prescribes no test whatsoever of a person's qualification to vote under section 4a of article 3 of the constitution adopted on August 2, 1910. 8. Elections (sec. 223) — Qualifications of Votees — Determination. When it appears that a person offering to vote in a city of the first class has not registered since the adoption of the constitutional amendment on August 2. 1910, and was not on January 1, 1866, or at some time prior thereto, entitled to vote under any form of government, and did not on said date reside in some foreign nation, and is not a lineal descendant of such person, the precinct elec- tion officers may lawfully require such person to read and write a section of the constitution before permitting him to vote. 9. Elections (sec. 328) — Violation of Election Laws — Defrauding Electob OF HIS Vote — Prosecution — Sufficiency of Information. An information, charging a precinct election inspector in a city of the first class with the offense of defrauding B of his vote, showed that B was not entitled to vote under any form of government on January 1, 1866, or at any lime prior thereto, did not on that date reside in some foreign nation, and was not the lineal descendant of such a person. It charged that B made and ten- dered an affidavit as to his qualifications, as prescribed in section 4 of the act approved March 28, 1910 (Laws, 1910, c. 116), in which affidavit was incor- porated the additional statement that B could read and write any section of the State constitution ; that the inspector nevertheless refused to permit B to vote until the latter should first read and write a section of the constitution in the inspector's presence. The information did not allege whether B had regis- tered as an elector, and if so, at what time. Held, That the information was 202 CARNEY VS. MORGAN. defective in failing to allege that B had registered as a voter subsequent to the adoption of the constitutional amendment prescribing an educational quali- fication for voters ; and the county attorney having stated in open court that B was not registered after the adoption of said amendment, and that the infor- mation, therefore, could not be amended in that respect, no offense was alleged or could be alleged, and petitioner is entitled to be discharged. [Additional Syllabus bj' Editorial Staff.] 10. Indictment and Information (sec. 17)- — "Indictment" Defined. Under Snyder's Comp. Laws, 1909, sec. 6674, an " indictment " is defined as " an accusation in writing, presented by a grand jury to a competent court, charging a person with a public offense." 11. IDICTMENT and INFORMATION (seC. 35) " INFORMATION " DEFINED. An " information " is defined to be a written accusation of crime preferred by the district attorney or other public prosecuting oflicer without the inter- vention of a grand jury. Application of A. J. Show for a writ of habeas corpus. Writ granted and petitioner discharged. R. L. Davidson, W. A. Ledbetter, and J. C. Stone, for petitioner. M. A. Breckenridge, county attorney, for respondent. Richardson, J. The petition herein, and the return to the writ issued thereon, show that on November 10. 1910, M. A. Breckenridge, county attorney of Tulsa County, filed in the county court of said county an information against the petitioner, A. J. Show, purporting to charge him with violating section 2083, Snyder's Compiled Laws, Oklahoma, 1909, by defrauding an elector of his vote, which information, omitting the caption, is in woi*ds and figures as follows, to wti " Be it remembered that M. A. Breckenridge, county attorney in and for Tulsa County, State of Oklahoma, who prosecutes in the name and by the authority of the State of Oklahoma, comes now into the county court of said county this 11th day of November, 1910, and gives the court to understand, and he informed, that A. P. Blakemore, then and there being over the age of 21 years, and a native male citizen of the United States, a resident of the State of Oklahoma for more than one year prior to November 8, 1910, of the county of Tulsa for more than six months prior to November 8. 1910, and a bona fide resident of election precinct 18, in the city of Tulsa, Tulsa County, State of Oklahoma, for more than 30 days prior to November 8, 1910, did, on the Sth day of November, 1910, at election precinct No. 18, in the city of Tulsa, Tulsa County, Oklahoma, and within the jurisdiction of this court, present himself to vote ; by then and there announcing to the clerk of the election his true name, to wit, A. P. Blakemore, giving at the time to the said clerk his street number, to wit, 301 N. Frankfort Street; that thereupon the election inspector, one A. J. Show, challenged the right of the said elector, A. P. Blakemore, to vote, with the intent then and there to defraud the said A. P. Blakemore of his vote in this, to wit: By then and there unlawfully, willfully, and with the intent to defraud the said elector, A. P. Blakemore. out of his vote, asking the said A. P. Blakemore if he, the said A. P. Blakemore, was, on the 1st day of January, 1866, or at any time prior thereto, entitled to vote under any form of govern- ment, or whether he, the said A. P. Blakemore. at that time resided in some foreign nation, or was a lineal descendant of such person, and then and there demanded of and required the said A. P. Blakemore to answer said question, to each of which questions above set forth, said Blakemore answered " No." That thereupon said election inspector, A. J. Show, demanded to know of said A. P. Blakemore if he, said A. P. Blakemore, could read and write any section of the constitution of the State of Oklahoma. That the aforesaid A. P. Blake- more then and there stated to said election inspector that he could both read and write any section of the constitution of the State of Oklahoma, and then and there the said election inspector demanded and requested of said A. P. Blakemore that he, the said A. P. Blakemore, then and there, in the presence of him, the said election inspector, A. J. Show, read and write a section of the constitution of the State of Oklahoma, offering to said A. P. Blakemore at the time pen, ink, and paper, and a copy of the constitution of the State of Okla- homa, the number or the section of the constitution demanded and requested to be read and written being to your informant unknown. That said A. P. Blakemore, then and there offered and presented to said election inspector. CAENEY VS. MORGAIir. 203 A. J. Show, an affidavit in writing showing tliat said A. P. Blalvemore could read and write any section of the constitution of the State of Oliiahoma, said affidavit being in words and figures as follows : " Tulsa County — township, 18 precinct. State of Oklahoma, county of Tulsa, ss. I do solemnly swear (1) I am a male citizen of the United States. (2) I am a native of the United States. (3) I have for more than thirty years last past resided in the precinct in which I am now offering to vote, and that 1 am now a bona fide resident of this precinct. (4) I have resided for more than six months last past in the county in which I am now offering to vote. (5) I have resided for more than one year last past in the State of Oklahoma. (6) I am over the age of 21 years. (7) I am not deprived of any of the rights of citizenship by virtue of any conviction of felony. (8) I am not now kept in a poor house or other asylum at public expense. (9) I am not now being kept in a public prison. (10) I am not a lunatic. (11) I am not an officer or a soldier in the Regular Army, or a marine in the Navy of the United States. (12) I know of no reason why I am not entitled to vote. (13) I am generally known by the name under which I now desire to vote, which is, A. P. Blake- more. (14) I have not voted and will not vote in any other precinct in this election. (15) My occupation is a preacher. (16) My residence is 301 Frank- fort street, Tulsa, Oklahoma. (17) During the last six months I have resided at . (18) I have removed from . (19) That P. R. Williams and T. W. Gurley have personally known of my residence in the precinct thirty days and in the county six months and in the State one year. (20) . (21) I am able to read and write any section of the constitution of the State of Okla- homa. (22) That the writing upon the reverse side hereof is a section of the constitution of the State of Oklahoma, written in my own hand by me in the presence of N. G. B. Taylor and W. H. Woods, on the 8th day of November, 1910. A. P. Blakemore. " Subscribed and sworn to before me this 8th day of November, 1910. M. L, Lynch, notary public. (Seal.) My commission expires July 27, 1912." " That said election inspector, A. J. Show, then and there, for the purpose of defrauding said A. P. Blakemore out of his vote, refused to accept the affidavit as true, and then and there refused to allow said A. P. Blakemore to vote unless and until he. the said A. P. Blakemore, should then and there read and write the section of said constitution before mentioned in the presence and in the hearing of the said election inspector, A. J. Show. That all of the said acts by the election inspector, A. J. Show, were done with intent then and there upon the part of him, the said election inspector, A. J. Show, to defraud the said A. P. Blakemore out of his vote, contrary to the form of the statutes in such cases, made and provided, and against the peace and dignity of the State. M. A. Breckenridge, county attorney." " State of Oklahoma, county of Tulsa, ss : A. P. Blakemore, being first duly sworn, on oath says that he has read and knows the contents of the foregoing information, and that the allegations and statements contained therein are true. A. P. Blakemore. " Subscribed and sworn to before me this 10th day of November, 1910. Minnie M. Thomas, notary public. My commission expires February 8, 1913." Upon this information the judge of the county court issued a warrant for petitioner's arrest, which the sheriff of the county duly executed. Being in custody thereunder, the petitioner has applied for a writ of habeas corpus to the end that he be discharged. His contention is that the information charges no crime, and does not authorize his detention to answer thereto. On the other hand, the respondent insists that the information charges a crime ; and that, even if it does not, a writ of habeas corpus will not lie to determine its sufficiency, since the matter can be raised by appeal or writ of error. Section 6207, Sny- der's Compiled Laws, 1909. provides that : " No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following. * * * " Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information." And the section following provides that : " No per- son shall be dischaged from an order of commitment issued by any judicial or peace officer for want of bail, or in cases not bailable, on account of any defect in the charge or process, or for alleged want of probable cause. * * * " This statute was construed by the Supreme Court of the Territory of Oklahoma in the case entitled In re Potswald (5 Okla., 789; 50 Pac, 139), and it was there held that the statute was merely preparatory of the common law, and 204 CAENEY VS. MORGAN. that the court has power under it to inquire into and determine the validity of a process upon which a party is restrained of his liberty, and that the effi- ciency of the writ could not be so impaired by statute as to take away this power. It goes without saying that the writ can not be substituted for an appeal or writ of error for the correction of mere error, irregularity, or deficiencies, and that, unless the commitment or warrant under which a party is held is void and not merely voidable, the writ will not lie. The general rule is that the writ may not be used, either before or after con- viction, to test the sufficiency of the indictment or information ; but this is subject to the qualification recognized in almost every jurisdiction, that where the accusation is not merely defective, or technically insufficient, not merely demurrable or subject to a motion to quash or set aside, but is elemen- tary and fundamentally defective in substance, so that it charges a crime in no manner or form and by no intendment, a party in custody to answer thereto, or after conviction thereon, will be discharged on habeas corpus. It was stated by Chief Baron Gilbert that. " If the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge." (Bac. Abr. Hao. Corp. B. 10.) And Lord Hale said: '' If it appeared by the return of the writ that the party be wrongfully committed or by one that hath not jurisdiction, or for a cause for which a man ought not to be imprisoned, he shall be dis- charged or bailed." (2 Hale's H. P. C, 144; In Pereles v. Weil, U. S. Marshal, (D. C.), 157 Fed., 419). Judge Sanborn used this language: " If the indictment is not sufficient on its face to show that an offense against the United States has been committed, the defendant should be discharged. If the indictment is good in substance, lacking only some technical averment of time or place or circumstances to render it free from technical defects, the order for removal will be issued if the evidence supplies such defects and shows probable cause to believe defendant guilty." Judge Dillon held likewise (In re Buell, 3 Dill. 116. Fed. Cas. No. 2102. See, also. In re Farez. 7 Blatchf. 34, Fed. Cas. No. 4. 644; In re Doig (C. C), 4 Fed., 193; In re Corning, et al. (D. C), 51 Fed., 205; In re Huntington (D. C), 68 Fed., 881; In re Wolf (D. C), 27 Fed.. 606; In re Barber (D. C), 75 Fed., 980; In re Greene (C. C), 52 Fed., 104; United States v. Connors (D. C), 111 Fed., 734.) The Supreme Court of California has passed upon this question in numerous cases. In Ex parte Corryell (22 Cal., 179), the syllabus is as fohows: "Where, upon application for discharge by habeas corpus, it appears that the prisoner, by virtue of a commitment in due form, is detained to answer an indictment pending in a criminal court, the court or judge hearing the application may proceetl to inquire whether the indictment charges any offense known to the law ; and upon determining that it does not, may discharge the prisoner. The statement in an indictment of some offense known to the law is essential to the jurisdiction of the court, and is therefore under well-settled rules a fact which may be inquired into upon habeas corpus." In that case it was ob- jected that the proceeding by habeas corpus was not proper, that the com- mitment emanated from a court of competent jurisdiction, and that its action In the premises was not subject to review on habeas corpus. To this the supreme court said: "The vice of the objection is that it assumes that the court had jurisdiction, whereas the fact of jurisdiction is the very fact which the petitioner disputes, alleging that the offense charged is one not known to the law. The court derives its jurisdiction from the law, and its jurisdiction ■extends to such matters as the law makes criminal, and none other, and, when it attempts to imprison for an offense to which no criminality is attached, it acts beyond its jurisdiction." Again, in Ex parte Kearney (.55 Cal., 212), the court discharged the prisoner, saying : " This is not the case of a complaint inartificially drawn, which intimates the existence of the facts necessary to the constitution of ofl'ense, or even of an attempted statement, insufficient, but indicating a purix)se to declare on the essential facts. It is a total failure to allege any cause of action, and, however objectionable the conduct imputed to the petitioner, he is no more, in the eye of the law, charged by complaint with any crime than if the paper had ascribed to him the most innocent of deeds." To the same effect are Ex parte McNultv (77 Cal., 164; 19 Pac, 237; 11 Am. St. Rep., 257); Ex parte Stemes (82 Cal.. 245; 23 Pac, 38); and Ex parte Maier (103 Cal., 476; 27 Pac. 402; 42 Am. St. Rep., 129). And Church, on Habeas Corpus (2d ed.), section 245, lays down the same rule. He says : " While inquiry can not extend beyond an indictment into fields of unknown facts, the indictment itself may be examined upon habeas corpus, CARNEY VS. MORGAN. 205 although it appears that the defendant has been detained to answer it under a commitment in due form. The court or judge of the court wherein such indictment is pending may proceed to inquire whether it charges any offense known to the law. for this goes to the jurisdiction, which is always a proper subject of inquiry in a proceeding of this character. If such were not the case, the simple warrant of a court, however arbitrary it might be, would con- stitute a complete answer to the writ. An indictment must contain the state- ment of an oft'ense known to the law, and under the rules well settled by judicial decision that this may be inquired into, if the court or judge deter- mines that it does not. the prisoner must be discharged as a matter of right, particularly in those States where a statute provides that he shall be dis- charged wiien the process, though proper in form, has been issued in a case not allowed by law." And in the notes the author adds the following : "A court can punish for no act except what is made criminal by law. It has no power to punish for something unknown to the law. It has jurisdiction to try and punish only for certain offenses, and those must be made criminal by law. If an indictment shows no offense, there is no criminality shown, and there is nothing of which a court can take jurisdiction. And if a court have no jurisdiction, its action is void — a condition which it is the very object of habeas corpus to cure, ^'oidable informalities or irregularities are not reached by it. but fatal jurisdictional defects are ever within its range, either before or after indictment, and even after conviction and judgment." And the Supreme Court of the United States in (Greene r. Henkel, U. S. Marshal, 183 U. S., 249; 22 Sup. Ct.. 218; 46 L. Ed.. 177). said: "We do not, however, hold that when an indictment charges no offense against the laws of the United States, and the evidence fails to show any. or if it appear that the offense charged was not committed or triable in the district to which the I'emoval is sought, that the court would be justified in ordering the removal, and thus subjecting the defendant to the necessity of making such a defense in the court where the indictment was found. In that case there would be no jurisdiction to commit nor any to order the removal of the prisoner." The rule announced by Church,, on Habeas Corpus, and by the Supreme Court of California, is fully sustained in Ex parte Prince (27 Fla.. 196; 9 South, 629; 26 Am. St. Rep., 67); Ex parte Bailey (29 Fla.. 734; 23 South, 552); In re Farrel (36 Mont. 2.54; 92 Pac, 785) ; In re Barker (56 Vt., 14) ; State v. Joyns (142 Ala., 61; 38 South, 755) ; Ex parte Goldman (Cal. App., 88 Pac, 819) ; Ex parte Johnson (6 Cal. App., 734; 93 Pac, 199) ; and Ex parte Rickey (31 Nev., 82; 100 Pac, 134). Our statutes define an indictment as " an accusation in writing, presented by a grand jury to a competent court, charging a person with a ])ublic offense." Section 6674, Snyder's Compiled Laws Oklahoma. And an information is defined to be " a written accusation of crime preferred by the district attorney or other public prosecuting officer without the intervention of a grand jury." (22 Cyc, 185). And it would seem that an accusation which in no manner charges a public offense, which accuses one of an act not a crime, can be neither an indictment nor an information. And it is uiformly held that, in the absence of a formal and siifficient accusation, the court acquires no jurisdiction what- ever, and, if it assumes jurisdiction, a trial and conviction are a nullity. (22 Cyc. p. 171, and cases there cited.) We think that the foregoing is the law, and that a person in custody under a purported indictment or information which wholly fails to charge a crime may be released therefrom by writ of habeas corpus. But it should be clearly understood that this rule has no application to mere technical defects or omissions or to mere matters of form. It must clearly appear therefrom that the act intended to be charged was not a crime. If from the accusation the court can deduce that the prosecutor intended to charge an act which is a crime, habeas corpus will not lie, however defectively the act is described. Does this information charge a crime? The answer to this question involves a consideration and construction of section 4 of the act approved March 28, 1910 (Sess. Laws 1910, p. 242), and of section 4a of article 3 of the Constitution, being an amendment adopted by the people at the election held on August 2, 1910. Section 4 of the session law in question reads as follows : " Sec. 4. Any elector shall on presenting himself to vote announce to the clerk of the election his name, and in towns and cities of the first class shall give his street number. Any election inspector, or challenger, may challenge the right of any voter to vote. Any person so challenged shall retire from the inclosure and not be entitled to vote imless he makes an affidavit in writing that he is a qualified and legal voter of the precinct, also his name, residence, occupation, place or 206 CARNEY VS. MORGAN. places of residence during the six months prior to the election, with the date of any removal within that time, and the names of two persons who have personal knowledge of his residence in the precinct thirty days; and the county six months and the State one year ; and if registered. He shall then be allowed to vote, unless the election inspector or challenger makes affidavit in writing that he knows or is informed and verily believes that the person offering to vote is not a legal voter of the precinct ; and the person offering to shall not thereafter be allowed to vote unless one qualifled elector of the precinct who has been a freeholder and householder in the precinct for at least one year next preceding such election shall make affidavit in writing that he has personal knowledge of such person offering to vote being a legal voter at the precinct. The affidavit of the person challenged shall be in the following form : " State of Oklahoma, county of , ss: I do solemnly swear (or affirm) (1) I am a male citizen of the United States. (2)1 am a native of the United States. (3) I have for more than thirty days last past resided in the precinct in which I am now offering to vote, and that I am now a bona fide resident of this precinct. (4) I have resided for more than six months last past in the county in which' I am now offering to vote. (5) I have resided for more than one year last past in the State of Oklahoma. (6) I am over the age of 21 years. (7) I am not deprived of any rights of citizenship by virtue of any conviction of a felony. (S) I am not now kept in a poorhouse or other asylum at public expense. (9) I am not now kept in a public prison. (10) I am not a lunatic. (11) I am not an officer or soldier in the Regular Army, or a marine in the Navy of the United States (12) I know of no reason why I am not entitled to vote. (13) I am generally known by the name under which I now desire to vote, which is . (14) I have not voted and will not vote in any other precinct in this election. (15) My occupation is . (16) My residence is (if in city or town, give street and number). (17) During the last six months I have resided at . (18) I have removed from to on the following date. (19) That and have personal knowledge of my residence in the precinct thirty days and in the county six months, and the State one year. " Subscribed and sworn to before me this day of , 19 — . . " The inspector shall file such affidavit and safely keep the same until it is delivered as hereinafter provided to the county election board. " The other affidavits herein referred to shall be in the following form : " State of Oklahoma, county of , ss : I swear that I know, or am in- formed and believe, that , now offering to vote, is not a legal voter in this precinct. " Subscribed and sworn to before me this day of , 19- " State of Oklahoma, county of , ss: I do solemnly swear (or affirm) that I am a qualified elector of this precinct ; that I have been a freeholder and householder in this precinct for one year next preceding this election; that , who now desires to vote, has resided in this State for one year imme- diately preceding this election; that he has resided in this county six months and in this precinct thirty days, at ; that he is now a bona fide resident of this precinct and a legal voter therein. These facts I know of my own personal knowledge. " Subscribed and sworn to before me this day of , 19 — . " Should the person challenged not be a native of the United States, unless he be of Indian descent, he may strike out the avowal Number '2' in the affidavit to be by him subscribed. If he be of Indaln descent he must be a native of the United States to be entitlfed to vote. Should the person chal- lenged be at the time confined in a poorhouse, or other asylum at public ex- pense, he may still be entitled to subscribe to said affidavit and vote provided he will strike out of avowal Number ' 8 ' as arranged herein the word 'not' and add at the close of such avowal with pen and ink the words ' as a soldier of the war of 1S61_65 between the States.' Should the person challenged be an officer in the Regular Army or a marine in the Navy of the United States, enlisted from this State, he may strike out the word ' not,' in avowal Number '1,' and add, at the close of the avowal, the words 'but I enlisted from this CARNEY VS. MORGAN. 207 State,' and strike out avowal number ' 18 ' in case he has not removed as therein provided. " The foregoing instructions, following the above jurat, shall be printed upon the affidavit in bold type, and immediately following the jurat, with an index hand at the beginning of each paragi-aph. When such affidavits have been signed and sworn to the clerk shall provide the elector with a ballot." The amendment to the constitution adopted on August 2, 1910, is in the following language : " Sec. 4a. No person shall be registered as an elector of this State, or be allowed to vote in any election held herein, unless he be able to read and write any section of the constitution of the State of Oklahoma ; but no person who was, on January 1st, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such constitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration be required. Should registration be dispensed with, the provisions of this section shall be enforced by the pre- cinct election officers when electors apply for ballots to vote." This amendment was recently considered by the supreme court of this State in the case of Joseph Atwater v. W. T. Hassett et al., not yet officially re- ported (111 Pac, 802), and it was there held that the same was constitutional and valid; and with this conclusion we agree. The questions therefore are (1) whether the amendment is self-executing, and (2) whether the affidavit provided for in section 4 of the act approved March 28, 1910. is the ulti- mate test of one's qualification to vote under the amendment. We think the amendment is self-executing. It is prohibitive in character, and desig- nates the person or persons who shall enforce the prohibition. The sub- stance of the amendment is that no person with certain exceptions shall be registered as an elector of this State, or be allowed to vote in any election held herein, unless he is able to read and write any section of the State con- stitution, and precinct election inspectors are commanded to enforce this in- hibition at the time of registration, if registration be required, and, if registra- tion be not required, precinct election officers are required to enforce it when electors apply for ballots to vote. It is generally held that constitutional pro- visions merely prohibitory in character are self-executing, even though legisla- tion with respect thereto may be desirable or beneficial, and that the officer or officers, board, or tribunal before whom the matter may arise should enforce it. (Ex parte McNaught. 23 Okla., 285. 100 Pac, 27; Id.. 1 Okla. Cr., 260; 100 Pac, 27 ; ex parte Cain, 20 Okla.. 125, 93 Pac, 974 ; Id., 1 Okla. Cr., 7, 93 Pac 975 ; Hickman v. Kansas City, 120 Mo., 116, 25 S. W., 225, 23 L. R. A., 662. 41 Am. St. Rep., 584; Householder v. Kansas City, 83 Mo., 495; Synod of Dakota v. South Dakota, 2 S. D., 366. 50 N. W., 632, 14 L. R. A., 421; Washingtoniau Home of Chicago v. City of Chicago, 157 111., 414, 41 N. E., 893, 29 L. R. A., 802 ; Law v. People, 87 111., 385 ; State v. Woodward, 89 Ind., 110, 46 Am. Rep., 160; De Turk v. Commonwealth, 129 Pa., 151, 18 Atl., 757, 5 L. R. A., 853, 15 Am. St. Rep., 705 ; American Union Tel. Co. v. Western Union Tel. Co., 67 Ala., 26, 42 Am. Rep., 90; Oakland Paving Co. v. Hilton, 69 Cal., 483, 11 Pac, 3; Donahue v. Graham, 61 Cal., 276; McDonald v. Patterson, 54 Cal., 246; Whit- man V. National Bank of Oxford, 176 U. S., 562, 20 Sup. Ct., 477, 44 L. Ed., 590.) Here the amendment itself provides that the precinct inspectors shall enforce the provision if registration is required, and that the precinct election officers, of whom the inspector is one, shall do so at the time of voting, if registration is not required. All that is necessary for its enforcement is to refuse to register such disqualified person if registration is required, or refuse to deliver him a ballot or to receive a deposit In the ballot box a vote from him where registration is not required. Furthermore, as to registration, section 13, article 8, chapter 31, session laws, 1907-8, provides that, if any citizen's right to registration is challenged, the inspector shall "make such investigation as he deems essential, and decide the question of such person's qualifications as an elector, and should he be of opinion that such person is not a qualified elector, he shall not issue to him a certificate of registration." It will be seen from an examination of the constitutional amendment that, if registration is required, then the provision in question is to be enforced by the precinct election inspector having the registration in charge and at the time of registering the elector. And it is only when registration is dispensed with that it is to be enforced by precinct election officers at the time of the elector's offering to vote. 208 ' CARNEY VS. MORGAN. The legislature of 1907-S passed an act providing for registration in the various cities of the first class in this State. This act was approved Myy 29, 1908 (art 8. c. 31. Sess. Laws 1907-8. p. 352). Subsequently the legislat-til-e of 1909 passed an act known as senate bill No. 179, approved March 27, 1909, ameiiding article 8, chapter 31, Session Laws 3907-S, in regard to registration, and making provision for the registration of all voters in all precincts in the State. (Sess. Laws 1909. p. 258.) This act did not carry the emergency clause, however, and, before the expiration of 90 days after the adjournment of the legishiture, the referendum was invoked against it. and, before it was voted upon by the people, it was rei^ealed by chapter 112 of the Session Laws of 1910. The act of 1909 therefore never became a law ; also, the legislature of this State passed, without the emergency clause, an act approved ]\Iarch 2G, 1910, re- quiring registration in every precinct of the State, but the referendum was invoked with respect to it also. It was voted uix)n at the election on November 8, 1910, and was defeated. It therefore never became a law; and consequently article 8, chapter 31, Session Laws 1907-8, has never been repealed, and is in force to this day. Section 2 of said article provides that registration shall begin on the first Monday of July preceding each biennial primary election to be held in August, and shall continue until 9 o'clock p. m. on the last Satur- day night of said month of July. Section 27 of said article provides that dur- ing the last week of the month of October i)receding the general election to be held in November the inspector of election shall open and keep open the regis- tration books for the registration of electors in their respective precincts Avho shall have become legal voters of such precinct subsequent to the prim.-iry elec- tion in August, or who will be entitled to vote at the general election in Novem- ber. This is the only provision for registration of any kind to be had after July. Section 1 of said article 8 i)rovides that no elector shall be allowed to vote in any election held in such cities unless he has been registered. .Section 15 of said article provides that a certificate of registration shall entitle the A'oter named therein to vote, provided it is regular in form as compared with the carbon copy in the hands of the inspector of the election. And section IS pro- vides that certificates of registration shall entitle electors who rightfully hold same to vote at all elections held after the date of said registration and before the next biennial registration, whether such election be primary of general. But section 4 of the act approved March 2S, 1910 (Sess. Laws 1910, p. 242) author- izes the challenge of any voter without regard to whether he was registered, and provides that, when challenged, he may vote only upon making the affidavit or affidavits therein specified. And, construing article 8, chapter 31, Session Laws 1907-8, together with section 4 of the act approved March 28, 1910, it would seem that after the latter act became effective registration provided for in the foi'mer act was only prima facia and not conclusive evidence of the possession of those qualifications mentioned in the latter act, and that not- withstan.ding such registration a person might be challenged, and, when properly challenged, should be refused the right to vote, unless he established the quali- fications mentioned in the latter act in the manner therein specified. The constitutional amendment having been voted upon and adopted on August 2, 1910, after the registration in July, and having prescribed an addi- tional qualification and disqualification for voters, and one which previous registration did not and could not determine, it is plain that as to all except persons who were registered in October as provided in section 27, article 8, chapter 31, Session Laws 1907-8, registration was dispensed with in the general election in November as determining a person's educational qualification. That is to say, registration was still required in cities of the first class, but registra- tion made before the adoption of the amendment was no evidence of the pos- session of the qualification prescribed by the amendment ; and, as to this quali- fication, any voter who was not registered after the adoption of the amend- ment — that is, in October — stood in the same situation as though he has not registered at all. Those who registered in October, such registration being subsequent to the adoption of the amendment, so far as the educational test Is concerned, were entitled to vote under and by virtue of their certificates of registration. But those who did not register after the adoption of the amend- ment, and who were not on January 1, 1866, or at some time prior thereto, entitled to vote under some form of government, or who did not at that time reside in some foreign nation, or who was not a lineal descendant of such person, so far as the educational test was concerned, were not entitled to vote under and by virtue of their registration in July, and were no*^ entitled to vote at all unless they could read and write any section of the State constitution. CAENEY VS. MORGAIST. 209 The information in this case does not allege whether A. P. Blakemore had regis<^ered as a voter, and, if so, whether such registration was in July or in Octol \iv. The county court of Tulsa County and this court will take judicial notice that Tulsa is a city of the first class (Ft. Scott v. Elliott, 68 Kan. 805, 74 Pac, (J09; City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep., 422 ; Goodwin v. Appleton, 22 Me., 453 ; Woodward v. Chicago & Northwestern R. Co., 21 Wis., 809 : Swain v. Comstock, 18 Wis., 463 ; Union Pac. R. Co. v, Montgomery. 49 Xeb.. 429. 68 N. W., 619: Hornberger v. State, 47 Neb. 40, 66 N. W., 23; Stratton v. Oregon City, 35 Or.; 409, 60 Pac, 905; People v. Wong Wang, 92 Cal., 277, 28 Pac, 270). and under section 6706 of Snyder's Compiled Laws the averment of that fact in the information is not necessary. But, with respect to Blakemore's registration, the averment and proof thereof are mate- rial and important ; for, if Blakemore did not register in October, then by the terms of the amendment in question its provision was to be enforced as to him by the election officers at the polls. But if he was registered in October, then under the amendment, in the absence of fraud in the registration, we think that established his qualification so far as the educational test was concerned; and if a fraudulent registration was relied upon as a defense the burden would be on the defendant upon a trial under an information of this kind to prove the fraudulent registration. As to this matter, the question whether Blakemore registered in October was raised in the hearing herein, and in answer to a question propounded by the court the county attorney of Tulsa Coimty stated that Blakemore registered in July, and not thereafter, and that the information could not be truthfully amended so as to allege that he had registered since the adoption of the amendment. We do not think that section 4 of the act approved Maveh 2S, 1910» prescribes any test whatsoever of one's qualification to vote under the constitutional amendment. The amendment is a later enactment. The qualification therein prescribed is not included in the voter's affidavit set out in section 4 of the act mentioned, and the affidavit relates only to matters specified therein. The form of the affidavits is st:itutory. and the statute expressly states what alterations may be made therein and what additions may be made thereto, and all others are thereby excluded. The affidavit shows all matters which may be proved thereby. And when such affidavit has been made, and, if controverted, has been supported by the affidavit of one qualified elector and freeholder, as to the qualifications to which the affidavit relates, the election officers are pre- cluded thereby. The vote may not be a legal one, but the election officers have no power to reject it because of the want of any qualification which the affi- davits in their statutory form show the party to possess. Under the statute the making and filing of the prescribed affidavits and not the person's qualifica- tion in fact entitles him to vote. This is not true of the constitutional pro- vision. Under that provision it is the fact of the possession of the qualification therein prescribed and not the making and filing of an affidavit thereof which entitles to vote. No person, with certain exceptions, shall be registered as an elector or be allowed to vote in any election unless he be able to read and write any section of the constitution is the language used; not that such person shall not be allowed to vote until he makes affidavit that he can read and write any section of the constitution. And we have no doubt that the people in initiating and adopting this constitutional amendment did not contemplate or intend that the qualifications therein prescribed should be established, and that indisputably and conclusively solely by the affidavits prescribed in section 4 of the act approved March 28, 1910. We think under the constitutional pro- vision the election officers, when it appears that the person offering to vote was not registered in October, and was not on January 1, 1866. or at some time prior thereto, entitled to vote under any form of government, and did not on said date reside in some foreign nation, and is not the lineal descendant of such a person, in the absence of further legislation may lawfully apply to such person any reasonable test as to his ability to read and write a section of the constitution. If the election officers know that such person possesses the requisite qualifications they need not apply any test. If they are satisfied from the person's affidavit that he can read and write any section of the con- stitution they may act upon that and permit him to vote. If they are not satis- fied therefrom they may lawfully apply the ultimate test of requiring such person in their presence to read and write a section of the constitution of not unreasonable length. Beyond this they can not go. And if they apply this test it is their duty in good faith to give the person an opportunity of fulfilling it, and when he has reasonably fulfilled the requirement to permit him to vote. 4252—13 14 210 CARNEY VS. MORGAN. Such a test itself is not unreasonable. It affords the highest, best, and ultimate proof of the possession or want of the qualification imposed. The elector can not prescribe his own method of proving his possession of this qualification so as to preclude the election officers from denying, disputing, or rejecting his proffered affidavit and applying to him the ultimate test contemplated by the amendment. If he could it would be easy to practically nullify the amendment. Taking the facts charged in this information as true, it appears that A. P. Blakemore was not himself entitled to vote under any form of government on January 1, 1866, and did not at that time reside In some foreign nation, and was not a lineal descendant of such a person. Therefore, unless he could read and write any section of the constitution, he was not entitled to vote at the election in question. And, since he did not register in October, it was no offense for the election inspector to require that he first demonstrate his ability to read and write a section of the constitution before permitting him to vote. If, after demanding the test, the inspector had refused him reasonable oppor- tunity to fulfill it. or after fulfilling it the inspector bad still denied him the right to vote, a different question would be presented ; but here the oft'ense is aHeged to consist in the fact that the petitioner refused to accept the tendered affidavit as conclusively establishing Blakemore's educational qualification, 3nd refused to allow him to vote only until he should read and write in petitioner's presence a section of the constitution. And, as Blakemore was not registered in October, this was no offense. On the other hand, if he had registered in Octo- ber, and duly presented his certificate of registration to the election officials when he applied to vote, in the absence of fraud in his registration, of which there is no legal presumption, he would have been entitled to vote; and if, under those circumstances, the petitioner had insisted upon applying to him the test alleged, and refused to permit him to vote until he should fulfill that test, intending under color and pretense of such test to defraud Blakemore of his right to vote, a right which, so far as the educational test was concerned had already been determined at the time and by the person designated by the amendment to determine it. such act would have constituted an offense. The in- formation fails to allege those facts. And, since the county attorney states that he can not truthfully allege them, their omission is not a mere " defect in the charge," for which the court, by section 6208, Snyder's Compiled Laws, is forbidden to discharge on habeas corpus. As these necessary averments are wanting and can not be supplied, the petitioner is entitled to be discharged, and it is so ordered. FuRMAN, P. J., and Doyle, J., concur. S^ATE OF Oklahoma, Oklahoma County, ss: I, Mary S. Stotler^ notary public, in and for Oklahoma County, State of Oklahoma, do hereby certify that the above and foregoing pages, numbered at the bottom respectively 1 to 12, inclusi^•e, is a full, complete, and correct copy of Exhibit E. introduced in evidence by the contestee in the taking of deposi- tions or evidence before me in the case now pending before the House of Representatives of the Sixty-third Congress of the United States of America, wherein John J. Carney is contestant, and Dick T. Morgan is contestee. [seal.] Mary S. Stotler, Notary Piihlic, Oklahoma County. Okla. My commission expires September 1, 1914. certificate. I, Mary S. Stotler. notary public within and for the county of Oklahoma, State of Oklahoma, do hereby certify that W. C. Broady. Ben W. Riley, and Porter H. Morgan, the witnesses whose names are severally subscribed to the foregoing depositions and evidence, were by me first duly sworn to testify to the truth, the whole truth, and nothing but the truth in the said above-entitled cause; that the depositions and evidence and testimony given by them and respectfully subscribed by them were reduced to writing by me, a disinterested person, in my presence, and subscribed by the respective witnesses in my presence; that the said evidence and testimony and depositions were taken on the 19th day of March, 1913, between the hours of 8 o'clock a. m. and 6 o'clock p. m. of said day at the office of Morgan & Deupree, 421, 422, and 423 American National Bank Building, in the city of Oklahoma City, Oklahoma County, State of Oklahoma, as specified in the notice to take said evidence and depositions % CARNEY VS. MORGAN. 211 which is hereto attached; that I reduced to writing the testimony of the said witnesses, together with the questions propounded to them by Porter H. Morgan and Harlan T. Deupree, attorneys for the contestee, and the questions pro- pounded by the Hon. Tyson Dortch, one of the attorneys for the contestant he being associated in the practice of law with Giddings & Giddings, attorneys of record for said contestant in said cause, together with the objections offered by the said attorneys for the respective parties, and said questions and testi- mony and objections were reduced to writing in the presence of the said attor- neys and were duly attested by the said witnesses, respectively, in the presence of said attorneys and agents ; that I am not related to either of the parties in said cause and am not attorney for either of them, and am not interested in the result of said action, financially or otherwise. [SEAL.] Mary S. Stotleb, Notary PuUic, Oklahoma County, Okla. My commission expires September 1, 1914. ADDITIONAL TESTIMONY FOR CONTESTANT. Now, on this 26th day of February, 1913, the above matter coming on for hearing before L. Babcock, notary public, in and for Canadian County, Okla.. the contestant, John J. Carney, appearing by his attorney, M. B. Cope, and the- contestee, Dick T. Morgan, appearing by F. E. Gillette, attorney, and Israel Futoransky being first duly sworn to take the testimony and the deposition at this hearing. Sherman Neff being first duly sworn on oath according to law, being called as a witness, testified as follows : Testimony of SHERMAN NEFF. Questions by Mr. Cope : Q. State your name. (The contestee, Dick T. Morgan, objects to any testimony by this witness or any witness pursuant to the notice served upon which such a hearing is predicated for the reason and upon the grounds: First, that no sufficient notice of this hearing has been served upon said contestee ; second, that the notice under the law and the rules of practice in such case made and provided of a hearing at this time is too late, the same having been served more thaji^ 40 days after the response of the contestee to the contestant's petition was filed.) A. Sherman Neff. Q. State your place of residence. — ^A. 606 North Choctaw. Q. State the city and county and State that you. live in. — A. State of Olda- homa, Canadian County, city of El Reno. Q. Were you a resident of El Reno, in Canadian County, on tlie 5th day of November, 1912? — A. Yes, sir. Q. What position, if any, did you occupy on the 5th day of November, 1912. with a relation to the election that was held on that date? — A. I was clerk of the election board of precinct A, second ward. Q. As such officer were you in attendance upon the board in that precinct on election day? — ^A. Yes, sir. Q. As such officer did you have general information as to what the laws of Oklahoma were at that time relative to whom were qualified electors and who were not? — A. Yes, sir. Q. I will ask you to state if in that precinct any negroes were allowed to cast their ballots on election day. — A. Yes, sir. Q. As nearly as you can remember, about how many negroes voted in that precinct on election day? Mr. Gillette. We object to the foregoing question and any answer thereto for the reason and upon the ground that there is no specification in the con- testant's petition which authorizes general proof of the fact alone that negroes voted. The specification of contest covering only the grounds of illegal votes in Canadian County under the laws of this State. A. Well, I think about 40; but now I wouldn't say positive as to that. Q. I will ask you, Mr. NefC, if on that date, before negroes were permitted to vote, if they were tested as to tlieir ability to read and write sections of the constitution, as provided by the laws of Oklahoma? Mr. Gillette. That's objected to as incompetent. A. I have given all the negro voters, with a very few exceptions, that test, but not on this date; but the negroes who can't make it, as a rule, are shy of coming to the polls. We turned, I think, two down that day that we didn't think could vote intelligently. That's the best of my recollection. Q. Then, as I understand you, Mr. Neff, the laws of Oklahoma, as they existed at that time, applicable to negro voters, was not enforced in that pre- cinct at the general election of 1912? — A. Well, we think that we enforced the law. Q. W611, before permitting those negroes to vote, did you require each and every one of them to read and write some section of the Oklahoma constitu- tion? — A. Not on that date, we didn't. 212 \ CARNEY VS. MOEGAIST. • 213 :Mr. Gillette. The consideration of the foregoing question and answer is •objected to for the reason that it is irrelevant and immaterial. Q. Please state what reason, if any, the election officers in that precinct had for not enforcing the laws of Oklahoma relative to negro voters. Mr. Gillette. The question Is objected to because it'^assumes a fact to exist which has not been shown to exist, in that it assumes that the election board did not discharge its duty. A. Why, we read of some fellows who had enforced that section of that clause and at that time were in jail, and we had some Instructions to keep out of jail, which we carefully carried out. Q. Then, it was because of the information that you had received as to what the consequences might be in case this particular law was enforced caused you to refrain from enforcing what is known as the "grandfather law"?^A. Well, partly ; and then my knowledge of these voters who came there to vote on that day— as I am pretty well acquainted with all of them— and I had put most of them through this test once. Q. You hadn't put them through this test at this particular election, had you"' Mr. Gillette. Objected to uix)n the ground that such test is not required under the law. A. No. Mr. Cope. That's all. Cross-examination bj' Mr. Gillette : Q. Do you know of any negro having voted at that election who was not qualified under the law to vote at that time? Mr. Cope. We object to the question as incompetent and immaterial, for the reason that the witness has already stated that the election test that ap- plied to negro voters by the laws of Oklahoma was not enforced at this par- ticular election. A. To the best of my knowledge there was not. Q. To what extent were you informed as to the qualifications of the negroes that were allowed to vote? State fully, Mr. Cope. We object to the question for the reason that the witness has stated that the election test as applied to negro voters was not enforced in that precint at the general election of 1912. Mr. Gillette. Counsel for contest ee responding to the grounds of the objec- tion urges the incompetency of the objection for the reason that the objection itself IS a legal argument upon facts concluded but not shown. A. Well, I personally did not think that it was necessary to put this test every time that these fellows wanted to vote, as I was acquainted with them and had given it to them once prior to that time — to most of them. Q. Do you know how a negro voted that day for Congressman? Mr. Cope. Objected to as incompetent. A. No, sir; I don't. Mr. Gillette. That's all. Mr. Cope. That's all. Sherman W. Neff. Subscribed and sworn to before me this 26th day of Februaiy, 1913. [seal.] I/UCius Babcock, ,, . . Notary Public. My commission expires July 17, 1913. H. D. FORTNER, being duly sworn and called as a witness, testifies as follows : Questions by Mr. Cope : Q. State your name. Mr. Gillette. I object to the testimony of this witness upon the ground and for the reasons that no sufficient notice of contest has been given within the time required by the law and the rules of practice to give jurisdiction over such testimony at this time. A. H. D. Fortner. Q. T\'here do you live. Mr. Fortner?— A. 110 West Clark Street, El Reno. Q. State the city and county and State.— A. City of El Reno, Canadian County. State of Oklahoma. Q. Did you live in El Reno on the 5th day of November, 1912?— A. Yes, sir. 214 CARNEY VS. MOEGAN". Q. State what official position, if any, you held on the election board in precinct A of the second ward of the city of El Reno at the general election of 1912? — A. I was inspector. Q. As such officer did you have a general knowledge of the laws of Oklahoma as they existed at that time? — ^A. No; because I was no lawyer. Q. As inspector at that election were you supplied with instructions which you received from the county election board? — ^A. Yes, sir. Q. I will ask you to state, Mr. Fortner, as nearly as you can remember, about how many niggers voted in that precinct at the general election of 1912. — ^A. Well, I'll tell you ; my memory wouldn't be very authentic from the simple fact, because I never did know the exact number. I can tell just about the number I thought. Q. You may state about what your judgment would be? — A. In my judgment, between 50 and 60. Q. I will ask you to state, Mr. Fortner, if, at that election, the test required of negro voters, under the laws of Oklahoma, were enforced by the election officers in that precinct? — ^A. No, sir; they were not. Q. I will ask you to state, Mr. Fortner, why the test required by the laws of Oklahoma on negro voters was not enforced in that precinct at that elec- tion? — A. The reason I didn't, I kept reading in the papers of the different squabbles the other inspectors had gotten into and I wasn't going to take any chances where a national question was involved. Q. Then, so far as you are concerned, it was lai-gely through fear of what the consequences might be to you that caused you to refrain from enforcing the test required by the laws of Oklahoma upon negro voters, was it — A. Yes, sir. Q. Do you recall at this time whether or not, prior to the general election of 1912, you received from any Federal official any card or instructions or advice against the enforcement of the test required of negro voters by the laws of Oklahoma ? — A. No, sir ; I didn't receive any. Q. As I understand it, Mr. Fortner, the negroes that voted in precinct A of the second ward of the city of El Reno, at the general election of 1912, did so without submitting to the test required of negro voters by the laws of the State of Oklahoma? — A. Yes, sir. Mr. Cope. That's all. Questions by Mr. Gillette: Q. That was the general election? — A. Yes, sir. Q. You may state whether or not any negro vote was challenged at the time he offered to vote at that election? Mr. Cope. We object to the question for the reason that it is incompetent and immaterial. A, No, sir. Q. Do you know of any negro having voted at that election who was not qualified to vote under the laws of this State? Mr. Cope. We object to the question as incompetent and immaterial, the wit- ness having testified that the test required of negro voters under the laws of Oklahoma, was not enforced in that precinct at that election. A. No ; not being personally acquainted with them. I am not qualified to state whether they were qualified to vote or not. Q. As inspector of elections, were you in any way hampered or hindered in requiring any test to be applied to any legal voter? — ^A. Only as I had read in the papers the circumstances in Kingfisher County and in other counties. It was through my own personal protection, as I recall it, that I didn't. Q. You qualified as an inspector, by taking the oath required of such officer, did you not, before you entered upon the discharge of such duty? Mr. Cope. Object to the question as incompetent. A. Yes, sir. Q. Did any person or persons there that day in any way interfere with your discharging your duty according to the law and your oath? — A. No, sir. Q. Do you know how any negroes voted that day for Congressman? — ^A. No, sir; I do not. Q. In testifying here to-day, do you do so with the understanding that the laws of Oklahoma required any test to be applied to any negro whose right to vote is not challenged? Mr. Cope. We object to the question as being incompetent and immaterial and calling for a conclusion of the witness. CARNEY VS. MORGAN. 215 A. Yes. Q. Was that your uuderstanding on election day? — A. Yes. sir. Q. Was that your uuderstanding when you qualified as an election official by taking the oath you did? Mr. Cope. Object to the question as incompetent and immaterial. A. Yes, sir. Q. Now. what test was required as you understand it? Mr. Cope. We object to the question as incompetent, irrelevant, and im- material. A. To be able to read and write a clause of the constitution of the State of Oklahoma. Q. Do you know that there was a negro voted at that election who could not do this? Mr. Cope. We object to the question as incompetent and immaterial. A. No. sir. Q. That's all. Redirect examination by Mr. Cope : Q. Do you know of your own personal knowledge whether any of the negroes that voted in that precinct that day could read and write any section of the constitution of Oklahoma?— A. No. sir. Mr. Cope. That's all. H. D. Fortneb. Subscribed and sworn to before me this 26th day of February, 1913. [seal.] Lucius Babcock. Notary PuWic. My commission expires July 17. 1913. Comes now the contestant and introduces in evidence the notice to take depositions in this case. NOTICE TO TAKE DEPOSITIONS. The said Dick T. Morgan, and Morgan & Deupree, his attorneys of record, will take notice that on Wednesday. February 26, 1913. the said John J. Carney, contestant above named, will take the depositions of sundry witnesses, to be used in evidence in the trial of the above cause, at the office of Lucius Babcock, in the city of El Reno, Okla.. before said Lucius Babcock, a notary public, in and for Canadian County. Okla. That the name of the witness whose deposition so will be taken is D. G. Fortner, El Reno. Okla., and such other witnesses as the respective parties hereto may agree to take at said time and place. The said testimony to be taken between the hours of 8 o'clock a. m. and 6 o'clock p. m. of said day, and that the taking of the same will be adjourned and con- tinued from day to day at the same time and place, and between the same hours, until they are completed. John J. Carney, Contestant, By GiDDINGS t& GiDDINGS, His Attorneys. Service of the above notice is hereby acknowledged this 24th day of Feb- ruary, 1913. CEETIFICATE OF NOTARY. State of Oklahoma, Canadian County, ss: I, Lucius Babcock, notary public, in and for the county of Canadian, State of Oklahoma, do hereby certify that the above-named, Sherman W. NefC and H. D. Fortner, the witnesses' names severally subscribed to the foregoing deposition, were by me first duly sworn to testify the truth, the whole truth, and nothing but the truth, in the case aforesaid, and that the depositions by them respectively subscribed were reduced to writing and subscribed by the respective witnesses in my presence, and the same were taken on the 26th day of February, A. D. 1913, between the hours of 8 o'clock a. m. and 6 o'clock p. m., of said day, and at the office of Lucius Babcock, in the city of El Reno, in the county of Canadian and State of Oklahoma, as specified in the notice thereto attached, and that I am not attorney for either of said parties or other- wise interested in the event of said action. [seal.] Lucius Babcock. Notary PuWic in and for said County and State. My commission expires July 17, 1913. 216 CARNEY VS. MOEGAN. Before Hon. South Trimble, Clerk of the House of Representatives of the United States of America, Washington, D. C. In the matter of the contest of J. J. Carney, contestant, v. Dick T. Morgan, contestee, for a seat in the Sixty-third Congress, from the Second District, State of Oklahoma, and in the matter of the printing of testimony in said case. Comes now Dick T. Morgan, in his own proper person, and alleges : First, that there was certain pretended evidence taken in behalf of the con- testant herein, J. J. Carney, which was not signed or properly sworn to by the witness or witnesses giving said testimony; and the said Dick T. Morgan objects to the printing of any part or portion of any said pretended testimony that is not duly signed by the witness or witnesses and properly attested under the hand and seal of an officer duly authorized and empowered to take evidence under such cases under the law. Second, Contestee Morgan alleges that practically all the testimony taken at Oklahoma City, Okla., was taken by shorthand writer and written out in long hand many months thereafter, and if signed by any of the witnesses there- after, was not signed until months succeeding the time which said testimony was taken, all of which is contrary to the laws and the rules conti'olling the taking of depositions in the State of Oklahoma, and to the laws of Congress rel-ating to the taking of such testimony, and Contestee Morgan, therefore, objects to the printing of any part or portion of said evidence that was taken by shorthand and not signed by the witnesses at the time and on the date and place where the evidence was taken, and this contestee alleges that all the evidence taken by the officer at Oklahoma City. Okla.. in this case was taken by shorthand as aforesaid, except seven pages immediately following page 39 of said evidence. Third. Contestee Morgan further objects to the printing of any alleged testi- mony relating to a certain alleged letter and warning circular alleged to have been sent through the United States mails to election officers for the reason that the evidence does not show in any way that the Contestee Morgan, or the Republican congressional committee, or the campaign committee, or nnyone in any way connected with said committee, or anyone in behalf of said Contestee Morgan, or with his knowledge had anything to do whatever with the sending of any such alleged letter or circular. Fourth, this contestee asks that all the evidence taken in his behalf be printed, except the cross-examination of the witnesses who testified in behalf of the Contestee Morgan, and he asks that the said cross-examination be ex- cluded on the ground that said cross-examination was improper. Fifth, the Contestee Morgan objects to the opening of any alleged testimony that has not been delivered to the clerk by mail or express and hns not come to the clerk addressed to the Clerk of the House of Representatives of the United States. Washington, D. C or that has not been properly indorsed upon the outside envelo]ie with the name of the case in which it is taken, together with the name of the party in whose behalf it was taken, with projier subscrip- tion and indorsement thereon, and Contestee Morgan specifically objects to the printing of any testimony and the opening or printing of a package of alleged testimonv that" is now in the hands of the clerk, addressed to E. J. Giddings. care New Wiilard Hotel, Washington, D. C. and has indorsed thereon. " From Gid- dings & Giddings." or words to that effect; and further specifically objects to the printing of alleged testimony of witnesses that appears to have come into the hands of the clerk without being sealed or indorsed; Respectfullv submitted. Dick T. Morgan. The undersigned, attorney for J. J. Carne.v. acknowledges delivery to him a true and correct copy of the foregoing motion on this the 30th day of June, 1913. INDEX. Page. A-otice of contest-- ^-- 3-7 Acceptance of service-, : — ^-.-. — ^ 8 Exhibit A. — Amendment to tlie constitution of the State of Oklahoma, section 4a of article 3 . — ^^ Exhibit B. — Letter from Homer N. Boardman, United States attor- ney, to Fred A. Wagoner, deputy county attorney, Chandler, Okla_- 8-9 Exhibit C. — Campaign circular— 9 Exhibit D. — Amended returu^-^ 9-10 Answer to notice of contest 11-26 Cross petition 20-21 Exhibit A. — Letter from the Oklahoma election board to Hon. Ben. W. Riley, secretary of state 22 Acknowledgment of service .- 26 Affidavit of service -_ 26 Tabulated statements of votes in Blaine and Oklahoma Counties-- 23, 24-25 Appearances for contestant : Cope, M. B 212 Emery, A. L 107 Giddings & GiddingS— — 27, 173 Appearances for contestee: Gillette. F. E 212 Michener, Louis T 168 Morgan, Porter H 27 Morgan & Deupree 107,173 Notices to take depositions 27, 106. 168, 173, 215 Objections by contestee of taking any testimony by .John J. Carney, con- testant --- 28-30 Officers before whom depositions were taken : Babcock. Lucius 213, 215 Graalman, Theodore 109. 111. 114. 116. 117. 118. 120, 122, 123, 125. 127, 129, 130. 133, 134, 137, 1.39. 142, 145, 150, 151, 152, 154 Hill, Marv S- 28, 46, 51, 52, 53, 55, 56. 58, 59, 62, 64, 66, 69, 74, 78, 80, 82, 105 Stotler, Mary S - 175, 177. 180, 210 White, E. L 171, 172 Testimony for contes'ant 27-87 Additional testimony 212-215 Testimony for contestee 106-154, 168-180 Witnesses for contestant: Baker, Morris S 55-56 Ballard, Henry F 56 Barker, W. W 74-78 Burnsworth, C. E 80-82 Clark, T. J 36^0 Davis. W. J - 28.30-36 Fortner. H. D 213-215 Jack, C. B 59 Kenvon, Frank L 53-55 Lucas, J. E 64-66 Moore, B. B 46-51, 6&-69 Morris, F. H 78-80 Needham, Ed 53 217 218 INDEX. Witnesses for contestant — Continued. Page. Neff, Sherman 212-213 Norman, H. E 52 Ray, T. H 51-52 Redding, Frank 57-58 Ringold, E. A 59-62,70-74,82-87 Seiler, Wm. H 69 Sorrels, J. W 62-64 Vorel, Louis 40-46 Wagner, E. A 58 Witnesses for contestee: Albin, C. E 142 Reals, W. L 113-114 Broady, W. C 147-150,173-175 Butler, George H 133-134 Carter. F. W 130 Dimmett, J. C 125-127 Dunn, J. A 136-137 Dykes, W. E 122 Ennen, A. L 141-142 Foose, Seymour 152-153 Galloway, Barritt 171-172 Howell, L. R 109-111 Knott, F. A 117-118 Laughlin, Harvey 119-120 Lemon, John B 130 Lookabaugh 151-152 McGee, John 129 Morgan, Dick T 168-171 Morgan, Porter H 177-180 Mosley, T. W 150-151 Riley, Ben W 175-177 Rycroft, R. G 116-117 Slayton, A. L 122-123 Spreitzer, Henry 132-133 Taylor. E. R 107-109 Temple, R. I 142-145 Thompson. W. E 139 Wallen, F. A 125 EXHIBITS. Exhibit A. — Campaign circular 87 Exhibit B. — Letter from Homer N. Boardman, United States attorney, to Fred A. Wagoner, deputy county attorney. Chandler, Okla 87-88 Exhib JExhib Exhib Exhib Exhib Exhib Exhib Exhib Exhib Exhib Exhib Exhib Exhib Exhib Exhib t C— J. M. H., February 6, 1913- t D.— J. M. H., February 6, 1913- t E.— Registration list of Oklahoma City, Okla 88 ts F to J.— Official ballots 88-97 ts K 1 to K 3.— Affidavits of challenged voters 97-100 t K 4. — Deposition of A. Thomas 100 t K 5.— Deposition of U. I. Davis 100 t K 6.— Deposition of A. L. Moore 100-101 t K 7. — Deposition of Louis Yorel 101 t K 8. — Deposition of C. E. Burnworth 101 t K 9.— Deposition of F. H. Morris 102 ts K 10 and K 11.— Depositions of G. W. Swails 102-103 t K 12.— Deposition of F. H. Morris 103 t K 13.— Deposition of C. E. Burnsworth 103-104 t K 14. — Deposition of Louis Vorel 104-105 Contestee's Exhibit A. — Official returns of the general election held Tues- day, Nov. 5, 1912 181-183 Contestee's Exhibit B. — ^Abstract of the vote cast for Blaine County, by precincts, at general election held Tuesday, Nov. 5, 1912 184-186 Contestee's Exhibit D. — Decision Supreme Court of Oklahoma in Atwater ■i\ Hassett et al .. 186-200 INDEX. 219 Page. Contestee's Exhibit E. — Decision of Criminal Court of Appeals of Okla- homa in Ex Parte Show 200-210 Contestee's Exhibit 1. — Certificate of vote 120-122 Contestee's Exhibit 2. — Certificate of vote 145-147 Contestee's Exhibit 3. — Certificate of vote 134-136 Contestee's Exhibit 4. — Certificate of vote : 114-116 Contestee's Exhibit 5. — Certificate of vote 118-119 Contestee's Exhibit 6. — Certificate of vote 123-125 Contestee's Exhibit 7. — Certificate of vote 131-132 Contestee's Exhibit 8. — Certificate of vote 127-129 Contestee's Exhibit 9. — Certificate of vote 140-141 Contestee's Exhibit 10. — Certificate of vote 111-112 Contestee's Exhibit 11.— Certificate of vote 137-139 Contestee's Exhibit 14. — Certificate of vote 154 o '/ ^