<DOC>
[Hinds Precedents -- Volume II]
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[DOCID: f:hinds_xxix.wais]
Chapter XXIX.
GENERAL ELECTION CASES, 1870 TO 1875
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1. Cases in the second session of the Forty-first Congress.
Sections 878-884.\1\
2. Cases in the Forty-second Congress. Sections 885-891.\2\
3. Cases in the Forty-third Congress. Sections 892-901.\3\
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878. The Ohio election case of Eggleston v. Strader, in the Forty-
first Congress.
No fraud being shown, the House sustained the election returns,
although a de facto election officer, of partisan bias and irregular
conduct, officiated a portion of the time.
Distinction between election officers de jure and de facto and mere
usurpers.
The Elections Committee examined a question raised in the notice of
contest, although it had not been insisted on in the argument of
contestant.
A small excess of votes in the box over names on the poll list does
not justify rejection of a poll, no fraud being shown.
Rude conduct on the part of election officers does not necessarily
constitute intimidation sufficient to vitiate the poll.
On May 23, 1870,\4\ Mr. Eugene Hale, of Maine, from the Special
Committee of Elections, submitted the report in the Ohio case of
Eggleston v. Strader. The
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\1\ See also case of Joseph Segar, of Virginia. (Sec. 318.)
\2\ Additional cases in the Forty-second Congress, classified in
other chapters, are:
Bowen v. De Large, South Carolina. (Vol. I, sec. 505.)
McKissick, v. Wallace, South Carolina. (Vol. I, sec. 651.)
The Tennessee Members. (Vol. I, sec. 521.)
Whitmore v. Herndon, Texas. (Vol. I, sec. 600.)
Giddings v. Clark, Texas. (Vol. I, sec. 601.)
Boles v. Edwards, Arkansas. (Vol. I, sec. 605.)
McKenzie v. Braxton, Virginia. (Vol. I, sec. 639.)
\3\ Additional cases in the Forty-third Congress:
Gunter v. Wilshire, Arkansas. (Vol. I, sec. 37.)
Shanks v. Neff, Louisiana. (Vol. I, sec. 609.)
Sheridan v. Pinchback, Louisiana. (Vol. I, sec. 623.)
Laurence v. Sypher, Louisiana. (Vol. I, sec. 623.)
The West Virginia Members. (Vol. I, sec. 522.)
\4\ Second session Forty-first Congress, House Report No. 73; 2
Bartlett, p. 897.
Sec. 878
sitting Member had been returned by a majority of 211 votes. The main
issue in the contest was over the poll of the First Ward of Cincinnati,
where sitting Member received a majority of 350 votes. If this poll
should be rejected, as demanded by the contestant, the result would be
changed.
There was no evidence that fraud was committed, but a person who
presided as one of the judges was undoubtedly disqualified by reason of
irregular election. The report says:
The polls were opened at about half past 6 o'clock a. m., James W.
Fitzgerald, Republican, and James Malloy, Democrat, members of the city
council, being present as judges of election ex officio. Mr. Fitzgerald
took the lead in the proceedings, and, under his charge, Charles W.
Rowland, Democrat, was chosen by the electors present, viva voce, to be
the third judge of election. Three clerks were duly chosen, and the
election proceeded.
The testimony shows that John C. Fiedelday, an active Democratic
politician, was present at or about the polls from the time they were
opened.
Between 10 and 11 o'clock Mr. Malloy left the polls because of duties
elsewhere and requested that Fiedelday should act in his place. This
was assented to, and he was sworn in. The substitution was confessedly
irregular, there being no law authorizing such procedure. The report
says:
Mr. Fitzgerald says that Fiedelday acted as judge in the absence of
Malloy during the time when from five-eighths to three-fourths of the
entire vote was polled, and that in disputed cases he, Fiedelday,
united with Rowland, the other Democratic judge, in receiving
Democratic votes to which he, Fitzgerald, believed there were valid
objections; but he fixes the number of these at not over 25, to the
best of his knowledge and belief, and he thinks that few or none of the
proper Republican votes were rejected.
The conduct of Fiedelday during the day is shown to have been
undignified, irregular, and unbecoming an officer taking any charge of
an election. When he was not acting as a judge he mingled in a crowd
and electioneered for Mr. Strader. He took a bet of $50 offered by one
John Kissick, who rather rashly ventured his money on Mr. Eggleston. He
left the polls and called back James Riley, who had once been rejected
and whose right to vote was doubtful, and induced the other judges to
receive the vote. He engaged in an altercation with Mr. Fitzgerald, the
Republican judge, gave and took the lie, and showed a familiarity with
profane language by no means commendable. He was evidently in no very
judicial frame of mind.
But the committee find no proof nor even suspicion of fraud in
his.conduct, nor, indeed, in the entire conduct of the poll. It was
clearly conducted in a generally peaceable manner.
The contestant claimed that the whole day's proceedings were invalid,
that there was no good or sufficient election board, that Fiedelday was
no judge, and that his acts were the acts of an usurper.
The committee conclude:
That Fiedelday was not legally elected a judge of the election, and
that he could not have held the place as against Malloy, who was an
officer de jure, is clear.
But it is well settled in law that, so far as the public is
concerned, the acts of one who claims to be a public officer, judicial
or ministerial, under a show of title or color of right, will be
sustained. Such a person is an officer in fact, if not in law, and
innocent parties or the public will be protected in so considering and
trusting him. This principle will not be questioned, it is believed.
The highest authorities and courts have maintained it.
In case of public officers who are such de facto, acting under color
of office by an election or appointment not strictly legal, or without
having qualified themselves by the requisite tests, or by holding over
after the period prescribed for a new appointment, as in case of
sheriffs and constables, their acts are held valid as respects the
rights of third persons who have an interest in them and as concerns
the public to prevent a failure of justice. (2 Kent's Com., p. 295;
Bouvier's Law Dictionary, de facto).
Sec. 878
In Wilcox v. Smith (5 Wendall, p. 233) the court says: ``The
principle is well settled that the acts of an officer de facto are as
valid and effectual when they concern the public or third persons as
though they were officers de jure. The affairs of society could not be
carried on on any other principle.'' To the same effect is the case of
The People v. Cook (14 Barb. N. Y. Rep., 259). Numerous other citations
from reports and elementary writers could be given if needed.
But the contestant claims that Fiedelday was not an officer or judge
de facto, and his counsel has made an ingenious argument before the
committee on the ground that Fiedelday was an intruder or usurper
without color of right, basing his argument largely upon the view that
there was no vacancy in the office of judge of elections and that there
is no such officer known in Ohio as temporary judge. But he seems for
the time to lose sight of the distinction between an officer de facto
and an officer de jure, and some of the cases that he cites relate to
the rights of claimants to offices as against other claimants which
involve the question as to an officer de jure and not de facto. It
takes but little to constitute an officer de facto as affects the right
of the public. The exercise of apparent authority under color of right,
thus inviting public trust and negativing the idea of usurpation, is
sufficient.
There need have been no vacancy in the office claimed to be holden;
indeed, no such office may have ever existed. The supreme court of
Massachusetts decided, in Fowler v. Beebe (9 Mass. Rep., p. 231), that
the appointment by the governor as sheriff of a county that does not
exist is a colorable appointment, and makes the appointee an officer de
facto, as to the public, and this though the appointment was absolutely
void and not simply voidable.
It has been decided in Maine that the acts of a magistrate, under
apparent right of office, will be sustained, although they were long
after the commission of the magistrate had expired. (Brown v. Lunt, 34
Maine Rep., 423.) To constitute an individual an officer de facto he
must not be a mere intruder, but must be in colore officii. There must
be some color of an election or appointment, or such an exercise of the
office, and an acquiescence on the part of the public, as would afford
a reasonable presumption of at least a colorable election or
appointment. In the case of the People v. Cook (14 Barbour, New York
Rep., 289) the entire question as to what will constitute an officer de
facto is discussed.
The report, after discussing the case in question, refers to certain
Ohio cases, and then proceeds to refer to cases of the House itself.
The committee admit that the House has sometimes apparently departed
from the strict rule, but it is pointed out that in such cases the
element of fraud was always present. The report concludes:
On these decisions, and seeking to give effect to the expressed voice
of the people, as shown in the whole vote of the First Ohio district,
the committee are dearly of the opinion that the poll in the First Ward
in Cincinnati should not be thrown out. To disfranchise 1,700 voters,
who cast their ballots in good faith at a peaceable election where no
fraud is shown, upon irregularities in the constitution of the board of
election, is what this committee is not prepared to recommend.
If the House of Representatives has ever, moved by partisan bias,
established a precedent opposed to this conclusion, the committee have
no hesitation in saying that it declines to be governed by any such
precedent. It has been shown that if such precedent can be found it is
also true that the contrary principle has been more than once
recognized and acted upon. Even if this were not so, it is never too
late to do justice. That requires that the poll in the First Ward shall
be sustained notwithstanding the irregularities attending it.
A question of less importance was considered as to another ward:
The counsel for the contestant, in his oral argument before the
committee, did not raise any question as to the Thirteenth Ward in
Cincinnati; but as objection is taken to its poll in the contestant's.
notice and in the printed brief of his counsel, the committee have
fully considered the points there raised.
It is claimed that more votes were put into the ballot box than there
were names on the poll book. The testimony shows that there was such an
excess of 9 votes; but so far from suggesting any fraud, all, or nearly
all, of the witnesses account for it by the great rush upon the polls
in the morning, at noon, and at evening, causing a rapidity of voting
so great that the clerks could not take down all the names. The
witnesses for both contestant and sitting Member testify to this.
Sec. 879
It is also set forth in contestant's notice that the judges of the
election in this ward prevented persons from voting for contestant by
rude and threatening language and conduct, driving legal voters away
from the polls, and otherwise intimidating them. The committee have
carefully read all the testimony bearing upon this charge, and fail to
find any such violence or force as impairs the integrity of the poll.
At times there was loud talk about the ballot box, and the crowd would
become excited to some extent in its movements, calling for some effort
on the part of the officers to keep the way to the polls clear. Several
witnesses testify that they believe that voters were kept from voting
by the course pursued by the judges of election, but the number stated
is very small, varying from three to five or eight, while policemen
present, and other well-known citizens, state that there was no such
intimidation.
The committee, in accordance with their conclusions, reported
resolutions declaring contestant not elected and confirming the title
of sitting Member to the seat.
On December 21, 1870,\1\ the resolutions were agreed to in the House
without debate or division.
879. The Kentucky election case of Barnes v. Adams in the Forty-first
Congress.
The House declined to find persons disqualified as voters because
they had formerly borne arms against the Government.
The State law providing, with affixed penalty, that both political
parties should be represented in boards of election officers, the House
declined to reject the returns for noncompliance with this law.
The House held a duly appointed election judge to be an officer de
facto, although not possessing a required qualification as to former
loyalty.
In the absence of fraud the failure of an election officer to be
sworn does not destroy the effect of his acts as an officer de facto.
On May 23, 1870,\2\ Mr. George W. McGrary, of Iowa, from the special
Committee of Elections, submitted a report in the case of Barnes v.
Adams, of Kentucky. The sitting Member had been returned by a majority
of 462 over the contestant.
The committee found the settlement of the contest to depend on
several questions of law:
(1) As to the right of ex-Confederate soldiers to vote in Kentucky,
the committee found:
There is no law of the United States or of the State of Kentucky
disfranchising the persons who were common soldiers in the rebel army.
It is well known that these persons are legal voters under the laws of
most of the States of the Union. They are clearly entitled to vote
under the constitution and laws of Kentucky for members ``of the most
numerous branch of the State legislature,'' and are, therefore,
entitled to vote for Members of Congress under the provisions of
section 2, article 1, of the Constitution of the United States, which
declares:
``The House of Representatives shall be composed of Members chosen
every second year by the people of the several States, and the electors
in each State shall have the qualifications requisite for electors of
the most numerous branch of the State legislature.''
In the case of McKee v. Young, in the last Congress, the House
rejected the votes of certain rebel soldiers, but it was done upon the
ground that at the time of the election at which they voted they were
in actual organized, armed hostility to the United States. Although the
rebel soldiers who voted were
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\1\ Third session Forty-first Congress, Journal, p. 97; Globe, p.
274.
\2\ Second session Forty-first Congress, House Report No. 74; 2
Bartlett, p. 760.
Sec. 879
at home on parole, they were held to be actually in the rebel army, and
it was insisted that to allow them to vote would be equivalent to
saying that an army, organized for and engaged in an effort to destroy
the Government of the United States, might vote for Members of
Congress. The case now before us is, however, very different. When this
election took place, more than three years had elapsed since the close
of the rebellion, and the armed hostility to the Government had long
since ceased. With the policy of disfranchisement those who took arms
against the Government the committee has nothing to do. It is simply a
question of law, concerning which we can entertain no doubt.
(2) The law of Kentucky provided as follows in regard to the
appointment of election officers:
Be it enacted by the general assembly of the Commonwealth of
Kentucky, That hereafter, so long as there are two distinct political
parties in this Commonwealth, the sheriff, judges, and clerk of
election, in all cases of elections by the people under the
Constitution and laws of the United States and under the constitution
and laws of Kentucky, shall be so selected and appointed as that one of
the judges at each place of voting shall be of one political party, and
the other judge of the other or opposing political party; and that a
difference shall exist at such place of voting between the sheriff and
clerk of election: Provided, That there be a sufficient number of the
members of each political party resident in the several precincts, as
aforesaid, to fill said offices. And this requirement shall be observed
by all officers of this Commonwealth who have the power to appoint any
of the aforesaid officers of election, under the penalty of a fine of
one hundred dollars for each omission, to be recovered by presentment
of the grand jury.
The committee thus discuss a failure to conform to this law:
We inquire, in the next place, what was the effect of a failure to
divide election officers equally between the two political parties. We
are altogether unable, consistently with our views of the law, to hold
that such failure of itself avoids the election. What we have said, and
what we shall hereafter say, about the validity of the official acts of
officers de facto applies here, for such officers are clearly of that
class. Besides, the statute which we have quoted, requiring an equal
division of election officers between the two political parties, itself
provides the penalty which shall be incurred by the persons appointing
these officers, if the statute is disregarded. It declares that the
penalty shall be a fine of $100 for each offense of the kind. It does
not declare that the election shall be set aside in such cases. It will
be seen hereafter that this point is not material to the case of
contestant, inasmuch as by throwing out all the polls where the
election officers were not equally divided politically he would lose
more than he would gain.
(3) An act of 1862 qualified the above act by providing that--
Sec. 1. That in construing the act approved February 11, 1858, to
which this is an amendment, those who have engaged in the rebellion for
the overthrow of the Government, or who have in any way aided,
counseled, or advised the separation of Kentucky from the Federal Union
by force of arms, or adhered to those engaged in the effort to separate
her from the Federal Union by force of arms, shall not be deemed one of
the political parties in this Commonwealth within the provisions of the
act to which this is an amendment.
The committee conclude that the above provision was intended to
prevent the recognition of the secession party of 1862 in Kentucky, and
operated upon that party as a class and not upon individuals. The
secession party had ceased to exist and therefore the provision was
inapplicable. In the debate on the floor this construction of the law
was disputed.
The committee observe, however, that if the statute should be
construed as applying to individuals rather than to a party, and should
be construed as forbidding the appointment of such persons,
nevertheless if they were ``de facto offi-
Sec. 879
cers, acting under color of authority, and not mere usurpers, then
their acts are not (in the absence of fraud) void as to third
parties.'' The committee say:
These judges of election, under the law of Kentucky, are appointed by
the county courts in the several counties. They are to consist of two
justices of the peace, if so many there be, or of one justice of the
peace and one other suitable person. In case of a disagreement between
the judges, the sheriff acts as umpire. It seems clear to the committee
that even if the acts above named were construed as claimed by
contestant, it could only follow that the county courts in Kentucky had
failed in some instances to do their duty in selecting election
officers, and had thus subjected themselves to the penalty provided by
those statutes, to wit, ``a fine of $100 for each omission,'' and not
that all votes cast at the elections held by such officers should be
thrown away. An officer appointed by competent authority, having all
the other qualifications requisite, save only that of loyalty during
the rebellion (where that is required), would certainly be an officer
de facto, clothed with color of authority, at least.
On a question arising from the charge that certain election officers
were not sworn, the doctrine of de facto officers is considered
further:
There is, however, a principle of law which your committee believe to
be well settled by judicial decisions, and most salutary in its
operations, which is conclusive of this point, as well as of several
other points in this case. It is this: That in order to give validity
to the official acts of an officer of election so far as they affect
third parties or the public, and in the absence of fraud, it is only
necessary that such officer shall have color of authority. It is
sufficient if he be an officer de facto and not a mere usurper. This
doctrine has been recognized and enforced by many of the highest courts
of this country.
The report cites the cases of The People v. Cook (N. Y., 4 Selden,
67), Taylor v. Taylor et al. (10 Minnesota, 107), Baird v. Bank (Penn.,
11 S. and R., 414), Pritchett v. The People (Ill., 1 Gilm., 529), The
People v. Ammons (5 Gilm., 107), St. Louis County Court v. Sparks (10
Mo., 121), etc.
The report further reviews the Congressional cases of Jackson v.
Wayne, McFarland v. Culpepper, Easton v. Scott, Draper v. Johnston,
Howard v. Cooper, Delano v. Morgan, Milliken v. Fuller, Clark v. Hall,
Flanders v. Hahn, and Blair v. Barrett, and concludes:
The question, therefore, regarded in the light of precedent or
authority alone, would stand about as follows: The judicial decisions
are all to the effect that the acts of officers de facto, so far as
they affect third parties or the public in the absence of fraud, are as
valid as those of an officer de jure. The decisions of this House are
to some extent conflicting; the point has seldom been presented upon
its own merits, separated from questions of fraud; and in the few cases
where this seems to have been the case the rulings are not harmonious.
In one of the most recent and important cases (Blair v. Barrett), in
which there was an exceedingly able report, the doctrine of the courts,
as above stated, is recognized and indorsed. The question is therefore
a settled question in the courts of the country, and is, so far as this
House is concerned, to say the least, an open one.
Your committee feels constrained to adhere to the law as it exists
and is administered in all the courts of the country, not only because
of the very great authority by which it is supported, but for the
further reason, as stated in the outset, that we believe the rule to be
most wise and salutary. The officers of election are chosen of
necessity from among all classes of the people; they are numbered in
every State by thousands; they are often men unaccustomed to the
formalities of legal proceedings. Omissions and mistakes in the
discharge of their ministerial duties are almost inevitable. If this
House shall establish the doctrine that an election is void because an
officer thereof is not in all respects duly qualified, or because the
same is not conducted strictly according to law, notwithstanding it may
have been a fair and free election, the result will be very many
contests, and, what is worse, injustice will be done in many cases. It
will enable those who are so disposed to seize upon mere technicalities
in order to defeat the will of the majority.
In the debate this position was assailed.
Sec. 880
880. The election case of Barnes v. Adams, continued.
Contestee having objected when certain evidence was taken that it was
not covered by the notice, the Elections Committee sustained the
objection.
The returns from an election precinct not being certified in any
manner whatever, they were rejected by the House.
Persons working on a railroad and intending to leave on its
completion were held not to have such residence as to make them voters.
Where elections were viva voce the Elections Committee required
contestant to prove the want of residence of such persons as he claimed
voted illegally.
An entire poll should not be rejected when it is possible to purge it
of illegal votes.
Threatening notices posted before an election and not resulting in
deterring voters from going to the polls do not justify rejection of
the polls.
(4) A further point was thus considered:
The act of Congress regulating proceedings in cases of contested
elections, and under which this proceeding was instituted, provides as
follows:
``Whenever any person shall intend to contest the election of any
Member of the House of Representatives of the United States, he shall,
within thirty days after the result of said election shall have been
determined by the officers or board of canvassers, give notice in
writing, to the Member whose seat he designs to contest, of his
intention to contest the same, and such notice shall specify
particularly the grounds upon which he relies in the contest.'' (See
Brightley's Digest, vol. 1, p. 254, sec. 14.)
As in this case there is nothing in the notice of contest in relation
to the failure of election officers to take the oath prescribed by law,
contestee objects to all the evidence upon that subject, and did so
object, as the record shows, when the same was taken. The committee are
of the opinion that the objection is well taken. The language of the
statute is specific and admits of but one construction. The grounds of
the contest which are to be insisted upon must be stated in the notice.
This, of course, is to the end that the contestee may be fully advised
of the nature of the case which he has to meet. The notice is the only
pleading required of contestant; it is the foundation upon which the
whole proceeding rests, and if the contestant could introduce one new
cause of contest not mentioned therein he could introduce any number,
and the contestee could never know in advance of the taking of the
testimony what issues are to be tried. When we add to this the
consideration that the time for taking testimony in these cases is, as
compared with ordinary litigation of equal importance in the courts of
the country, necessarily brief, and that if a contestant may go outside
of his notice at all he may do so just before the time for taking
testimony expires and thus cut off his adversary from the privilege of
taking rebutting testimony, the great importance of adhering to the law
will be apparent to all.
(5) Certain returns were thrown out because of the omission of
necessary formalities:
We have already said that the Glades precinct, No. 11, in Pulaski
County, must be rejected, because it is not certified to be correct by
any officer. This objection is substantial and not technical. The paper
purporting to be a poll book for this precinct proves nothing whatever.
To admit such a, paper as evidence would be to set aside all rules and
open wide the door for fraud.
In four other precincts the returns are rejected because ``the poll
books are not certified in any manner whatever.''
Sec. 880
(6) As to the qualifications of certain voters:
No person is a legal voter under the constitution of Kentucky unless
he be a resident of the State, county, and voting precinct. A temporary
sojourner is not a resident within the legal sense of that term. A
person who goes to a place for a specified purpose, and with the
intention of leaving it when that purpose is accomplished, does not
gain a residence, however long he may remain. It follows that such
persons as went into any of the precincts in question for the purpose
of working on the railroad, and with the intention of leaving when the
road should be completed, had no right to vote. The testimony is not as
dear as it might be as to the number of votes which ought to be thrown
out under this ruling. The committee are of the opinion that the
following rule should govern in determining what votes to reject:
Whenever it appears that a person came into the precinct for the
purpose of working on the railroad, that he resided in a temporary
habitation, and was generally regarded as a temporary inhabitant, and
that he actually left very soon after the road was completed, and soon
after the election, his vote should be rejected.
(7) It being charged generally that in a certain precinct certain
disqualified railroad hands voted, the report says:
That there were illegal votes cast by some of these persons we think
is beyond question, but the presumption is always in favor of the
legality of a vote which has been admitted by the proper officers; and
since all elections in Kentucky are viva voce, and since the record
shows how each person votes, it would not, we think, be too much to
require contestant to prove the want of residence of such persons as he
claims illegally voted for contestee.
As to another precinct where a similar charge was made:
The vote at this precinct should undoubtedly be purged of a number of
illegal votes, but the evidence is not sufficient to authorize the
rejection of the entire poll, especially in view of the fact that it
was within the power of contestant to show the facts in relation to
each person who voted for contestee, and thus purge the poll of all
illegal votes. The rule is well settled that the whole vote of a
precinct should not be thrown out on account of illegal votes having
been cast, if it be practicable to ascertain the number of illegal
votes, and the person for whom cast, in order to reject them and leave
the legal votes to be counted. Legal votes are not to be thrown out in
order to get rid of illegal votes, unless necessity requires it as the
only means of preventing the consummation of a fraud upon the ballot
box.
(8) In one precinct intimidation was alleged. It was proven that
preceding the election threatening notices promising that certain
Republicans should be lynched had been posted, and several persons had
been lynched and one or two murdered in the vicinity a short time
previously. But the only result of this seemed to be that both parties
appeared at the polls armed. There was no violence at the polls, and a
full vote was given, no one being prevented from voting as he chose.
The report says:
It is not to be doubted that an effort was made to intimidate the
Republican voters at this precinctby posting up threatening notices and
otherwise; but it is also clear that it was wholly unsuccessful. The
Republicans went to the polls determined to maintain their rights, and
they were not molested. The vote of this precinct can not be rejected.
In accordance with the principles set forth above the committee found
the majority of sitting Member to be 332, and reported a resolution
confirming his title to the seat.
On July 5 \1\ the report was debated at length. A motion to recommit
the report with instructions that the case be reexamined was disagreed
to--yeas 21, nays 121.
The resolution of the committee was then agreed to without division.
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\1\ Journal, pp. 1147, 1148; Globe, pp. 5179-5193.
Sec. 881
881. The Indiana election case of Reid v. Julian in the Forty-first
Congress.
Discussion of the reasons justifying the rejection of an entire poll.
Election officers not being residents of the precinct as required by
law, the poll was rejected.
A person not possessing the qualifications required for an officer de
jure may not be an officer de facto.
Discussion as to the principles on which a fraudulent return is
rejected.
On July 6, 1870,\1\ Mr. John Cessna, of Pennsylvania, from the
special Committee on Elections, submitted the report in the Indiana
case of Reid v. Julian. The minority views, presented by Mr. Samuel J.
Randall, of Pennsylvania, gives the most succinct statement of the real
issue in the case. The official ascertainment of the result in the
district had given to Mr. Julian, the sitting Member, a majority of
116. The minority views thus explain:
This result was reached, as the evidence shows and as is admitted by
the contestee and contestant, in consequence of the clerk of Wayne
County, in reporting the aggregate vote of that county, leaving out of
his report the aggregate vote of the south precinct of Richmond City, a
poll or precinct of Wayne County, at which Mr. Reid obtained 676 votes
and Mr. Julian received 475 votes, as returned by the judges of
election; thus giving Mr. Reid a majority of 201 votes over Mr. Julian
at said poll or precinct; but which was rejected by the board of
canvassers of Wayne County, Ind., and which was not counted by the
county clerk in his return to the secretary of state, and consequently
was not included by the latter in his aggregate of votes as certified
to the governor. If this poll and vote had not been rejected by the
board of canvassers of Wayne County, then Mr. Reid would have received
a majority of 85 votes on the total vote over Mr. Julian and, as a
matter of right, would have been entitled to the certificate of the
governor.
This not being a prima facie case the committee did not review the
action of the board of canvassers, but passed at once to consider the
case on its merits and to consider the justice of sitting Member's
claim that the entire poll in the precinct in question should be
rejected.
The majority say:
It has long been held by all the judicial tribunals of the country,
as well as by the decisions of Congress and the legislatures of the
several States, that an entire poll should always be rejected for any
one of the three following reasons:
1. Want of authority in the election board.
2. Fraud in conducting the election.
3. Such irregularities or misconduct as render the result uncertain.
We are clearly of opinion that the first and third reasons were
sufficiently shown in this case.
If the second reason has not been established against the officers
conducting the election, it has been abundantly shown that these
officers afforded the opportunity for someone else to commit the fraud,
if they did not do so themselves.
This House has, in very many cases, rejected the entire polls for the
several reasons before stated or for either one of them. These
decisions commenced many years ago, and have continued regularly until
the present time. Jackson v. Wayne, 1792 (Contested Elections, vol. 1,
p. 47); McFarland v. Purviance, 1804 (same vol., p. 131); Easton v.
Scott, 1816 (same vol., p. 272); McFarland v. Culpepper, 1807; Draper
v. Johnson, 1832 (same vol., p. 710); Howard v. Cooper (2 vol.
Contested Elections);
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, House Report No. 116; 2
Bartlett, p. 822; Rowell's Digest p. 253.
Sec. 881
Blair v. Barrett (2 vol. Contested Elections, p. 308); Knox v. Blain (2
vol. Contested Elections, p. 521); and other cases therein cited.
Both volumes of contested election cases in Congress are full of such
precedents. Delano v. Morgan, Myers v. Moffat, Covode v. Foster, and
numerous other cases not yet reported, are to the same effect.
The majority also quote at length the decision of the court in the
Pennsylvania contested elections of 1867. (1 Brewster, 171.)
As to the want of authority in the election board, the law is quoted
with its requirement that the judges selected should be ``two qualified
voters of the precinct.'' Then as to the southern precinct of Richmond
the majority say:
On the morning of the election in October, 1868, S. W. Lynde appeared
at the poll of the southern precinct and claimed to act as inspector of
elections. After some slight controversy, M. M. Lacey and John S. Lyle
were declared elected as judges. Mr. Lynde claimed to act as inspector,
because he was one of the board of registry for the township of Wayne.
He acted as a sort of president of the meeting at the organization of
the board, and put to vote the motions made. Mr. Lynde swears (pp. 8
and 9) that he was not a resident in, nor a citizen of, the southern
precinct; that he was a citizen of the northern precinct, and that he
did on that day vote at the poll in said northern precinct.
Mr. Lacey testifies to precisely the same thing in regard to himself
(p. 14), and Mr. Lyle does the same (pp. 9, 10, and 11). Several other
witnesses bear similar testimony in regard to the residence of these
three officers of the election board of the southern precinct. It is
not denied by anyone, nor in any place, that the three officers of this
board were nonresidents in the precinct where they held the election,
and all of them voted on that day at a different poll.
The majority continue:
Elections should not be set aside for want of mere form, for innocent
or unintentional irregularities. On the other hand, all the mandatory
provisions of the law must be observed, or the election can not and
should not be sustained. These questions have often been considered by
the courts of the country, by this House, and by the legislatures of
the several States of the Union.
On behalf of the contestant, however, it is urged that these persons
were officers de facto, although it is conceded that they were not
officers de jure. A large number of authorities have been cited to this
point. It is freely admitted that the distinction between officers de
facto and de jure is not well defined. The decisions of the House, and
even the decisions of courts, on this question are somewhat
inconsistent and conflicting. While we admitted that party spirit and
surrounding circumstances have produced such apparent inconsistency in
the decisions of the House, yet we venture to assert that in no case
has it ever been held that persons were officers de facto who did not
possess the qualifications requisite for officers de jure.
In the case of Delano v. Morgan even the minority of the committee
(Democratic) reported in favor of excluding the entire poll of Blue
Rock Township, and gave as a reason for so doing that the polls had
been closed by the officers for about one hour so as to enable them to
take dinner. To sustain this decision they quote the opinion of Judge
Brinkerhoff, of Ohio, and yet in that case there was no pretense that
the ballot box was tampered with, but that the judges rather acted in
ignorance of what their duties were. This case (Delano v. Morgan) is
directly in point in regard to the distinction we have attempted to
make as to officers de facto. One of the officers of the Pike Township
election was disqualified; the poll was rejected. The debates on this
case are full to the point, and the conclusion is full and complete in
favor of the distinction we make. One may be an officer de facto who
has been irregularly or improperly appointed or selected, and his acts
may be binding on third persons; but in a case of personal
disqualification of the officer for reasons which could not be cured by
a change in the manner of his selection, the rule is universal that he
can have no jurisdiction, and all his acts are void from the beginning
for want of authority.
This view as to an ineligible person claiming to be an officer de
facto was held of importance in the debate, and was indorsed by Mr.
Luke P. Poland, of Vermont,\1\ who had given much attention to election
cases.
-----------------------------------------------------------------------
\1\ Globe, p. 653.
Sec. 882
The minority antagonized this theory:
The evidence shows that those officers acted with permission of all
the voters present at the opening of the poll, had their sanction and
approval as such, and, as far as is known or the testimony discloses,
without a single objection during the day of the election from anyone.
I hold, therefore, although they may not have been officers de jure,
they were officers de facto, and as such their acts were valid so far
as they concern the public and protect the rights of third persons,
although they may have had no legal right to exercise the duties of
such election officers, and should stand. They clearly should stand in
the absence of fraud.
As to the second and third questions, that of frauds and
irregularities, the majority report says:
We are aware of the fact that it is often argued in defense of
irregularities, bad faith, and even fraud in conducting elections, that
it is hard to disfranchise the honest voter by reason of the mistakes
or misconduct of election officers. This view has been so completely
answered by the judges, in the opinions already cited, that little more
need be said on this point. It might be well, however, to add that no
legal voter is disfranchised by throwing out a fraudulent poll. The
only effect of such action by the proper tribunal is to destroy the
prima facie character of the return, and to deny to the official acts
of such officers the legal presumption of correctness usually accorded
to the conduct of faithful agents
882. The case of Reid v. Julian, continued.
Votes proven aliunde by persons swearing that they were qualified,
and that they voted for the contestee in the election in question.
Votes may be proven aliunde by evidence of third persons as to how
the voters cast their ballots.
Where votes are proven aliunde, the voter, in swearing to his vote,
need not identify the ballot.
When votes are proven aliunde by one party to a contest, the residue
are not allowed to the other party.
As to the specific acts, the majority enumerate a series which are
explained or disputed by the minority.
A question arose in regard to the proceedings of sitting Member to
purge the poll by evidence aliunde. The South Richmond returns gave Mr.
Julian 475 votes and Mr. Reid 676 votes. As to the evidence aliunde,
the majority say:
We find that Mr. Julian has called 508 persons who swear that they
were voters in that precinct; that they voted in October, 1868, at that
poll, and that they voted for said Julian. In the judgment of the
committee, the evidence of these witnesses is as full, complete, and
reliable as it is possible for human testimony to be given. It would be
received in any court of justice in the country, and held sufficient to
establish any fact in a civil, or even criminal, case. These names are
appended to this report and contained in statement marked ``Paper A.''
In addition to these he has called 22 other persons who give similar
testimony in regard to themselves, and corroborate these by calling 22
witnesses who gave them tickets and saw them vote. For this list see
Paper B, hereto attached. He has also produced a list of other persons
voting at said poll, being 21 in number, whom he also claims as having
voted for him. Eight of these were examined personally and 13 witnesses
examined as to the others. While the evidence in regard to this list is
not so entirely conclusive and unanswerable as in regard to the other
two lists, yet it is altogether satisfactory and sufficient to
establish a fact before any legal tribunal. For this list see Paper C.
Mr. Julian claims to have proved that he is entitled to 29 other
votes cast at this poll. See Paper D, hereto attached. The evidence in
regard to these 29 persons is such as to render it highly probable that
they did vote for Mr. Julian, yet, as we think, insufficient to
establish the fact as a legal conclusion. The weight of evidence and
probabilities, however, are so largely in favor of this theory as to
add greatly to the uncertainty of the return of this poll.
Sec. 882
In this precinct the returns gave to Mr. Julian 475 votes and to Mr.
Reid 676. Had this vote been counted by the county board Mr. Reid would
have had a majority of 85 votes in the district, making 90 with the
credit of 5 votes hereinbefore allowed him.
Mr. Reid makes several objections to Mr. Julian's attempt to purge
this poll. He says that in several cases of the 551 persons claimed by
Mr. Julian it is not shown by the witnesses that such persons were
legal voters. In point of fact this is true of some 30 or 40 names. In
the judgment of the committee no such proof was necessary in this case.
The poll is either valid or void as a return of election. If void no
effort to purge it is necessary. If the officers who held this election
had authority, and if they could conduct it, then every vote which went
into the box is presumed to have been given by a person duly qualified.
The legal presumption in favor of the right of the voter is all that
can be required.
The minority say:
The contestee, not contending that any direct fraud has been proven
by him against anyone, asserts that, as one of the badges of fraud, he
has proven by the oral testimony of over 500 witnesses that this number
of ballots were actually voted for him, and that by the evidence of
some 40 more persons they either voted for him or intended to do so;
and hence the ballots in the ballot box must have been changed by some
other person or persons, as there were only 475 votes returned for him
by the judges, instead of over 500 votes, as should have been; but
against the oral testimony of these witnesses there is the evidence of
the analyzation of the actual tickets voted, and a complete recount of
their number, made in the presence of the contestee's counsel, sworn to
by the inspector of the south Poll as being true, and the tickets voted
and counted at the election; and this testimony is confirmed by the
township trustee and others, who had charge of the tickets from the
close of the election until they were counted by the contestant, which
analyzation shows 670 votes for the contestant instead of 676, and 479
votes for the contestee instead of 475 votes, with 32 ballots scratched
or which had no name on them, 31 of which appeared to be Republican
tickets and 1 a Democratic, making in all 1,181 tickets instead of
1,183, the number returned by the judges, and also that which the poll
book shows.
The contestant had objected to the evidence by which the votes were
proven aliunde, citing the case of Wheat v. Ragsdale (27 Ind., 203) to
show that the witness should first be asked if he could identify his
ticket, and then a search should be made for it. The majority say:
It does not appear that the tickets were before the notary swearing
the witnesses, or before the witnesses being sworn. We therefore agree
with the court in saying that the question supposed to be indispensable
would have been of little practical importance. There were 1,151
tickets in this box for Congress, and it would be almost absurd to
suppose voters could identify their tickets from such a number after a
lapse of several months.
It was claimed in the debate \1\ that in the absence of positive
fraud, which vitiated and corrupted the whole poll, the contestant
should be credited with the residue of votes after the allowance to
sitting Member for what he had proven. But the majority did not allow
this contention.
The majority of the committee found as a result of minor corrections
and the purging of the South Richmond poll a majority of 602 for Mr.
Julian, and reported resolutions declaring contestant not elected and
that sitting Member was entitled to the seat.
On July 15 \2\ the report was debated in the House, and on that day a
substitute of the minority declaring contestant elected was decided in
the negative without division. Then the resolution declaring sitting
Member entitled to the seat was agreed to, yeas 127, nays 50.
-----------------------------------------------------------------------
\1\ By Mr. Michael C. Kerr, of Indiana, Globe, p. 5651.
\2\ Journal, pp. 1283-1285; Globe, pp. 5645-5653.
Sec. 883
883. The Missouri election case of Shields v. Van Horn, in the Forty-
first Congress.
Where a canvassing officer had without doubt wrongfully rejected a
decisive return, it was held that the burden of proof should be on the
wrongfully returned member.
Where the registration on which the vote depended was fraudulent, the
House rejected the entire return.
On July 15,1870,\1\ John C. Churchill, of New York, from the
Committee on Elections, submitted the report of the majority in the
case of Shields v. Van Horn, of Missouri. The report, after stating the
vote of the district, says:
That this is a correct statement of the vote cast at that election is
not questioned by either party, and it shows a majority for the
contestant over the sitting Member of 983 votes. The secretary of
state, to whom, by the law of Missouri, the returns of votes cast for
the several candidates for Representative in Congress in each county
are made by the clerk of the county court in each county, rejected the
returns from the counties of Platte and Jackson, whereby a majority of
867 votes in the eight remaining counties was shown in favor of Robert
T. Van Horn, to whom he give a certificate of election in due form,
upon which he was admitted to the seat. The supreme court of Missouri,
in two cases arising in different parts of the State at this election
of 1868, have decided, in accordance with the general current of
authority in this country, both legislative and judicial, that the
action of the secretary of state was not authorized by law; that his
sole duty was to add together the votes returned to him as cast for
each candidate in the several counties, and to give the certificate to
the person to whom, upon such addition, it appeared that a majority of
votes had been given. (The People v. Rodman, 43 Mo., 256; The People v.
Steers, 44 Mo., 224,228.)
The action of the secretary of state, therefore, does not aid us in
deciding this contest upon the merits of the case, and is only referred
to to explain the attitude of the different parties to this contest.
The minority \2\ of the committee contend:
It being in proof, and in point of fact not denied by the contestee,
that Shields received a majority of votes cast at the election and duly
certified to the secretary of state, the commission, of right and in
law, belongs to him. In contemplation of law and by virtue of the vote
cast Shields is in Congress and Van Horn out, thus reversing the legal
status of the parties to this contest, and changing the burden of proof
from the contestant Shields to the contestee Van Horn. The consequences
of this position of parties are important and bear on the whole
question of testimony, its application to and value in the case. The
contestee says, ``Congress possesses original and exclusive
jurisdiction in extending the right of parties to seats in Congress.''
Without questioning this rule, it maybe remarked that it is in entire
harmony with the foregoing suggestions as to the status of the parties;
and that it is plainly at war with the usurpations of the secretary of
state as a canvassing officer, in assuming a jurisdiction belonging
``exclusively'' to Congress. With just as much support in law might the
secretary assume all the powers of Congress, and pass upon the
qualifications of Members, as to assume to judge of their election and
returns.
The legal consequence therefore is that in order rightfully to hold
the seat he now occupies in the House by usurpation of the secretary of
state, and which seat prima facie belongs to the contestant, the burden
of proof is upon the sitting Member to show that a majority of the
qualified votes cast at the election in the whole district, Platte and
Jackson included, were cast for him, and not, as returned by the
several clerks, for Shields, the contestant.
The committee found that the returned vote of Platte County should
stand, since the sitting Member, although he had attacked it in his
answer to the notice of contest, had presented no e-evidence to sustain
the allegations of his answer.
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, House Report No. 122; 2
Bartlett, p. 922.
\2\ Views presented by Mr. Albert G. Burr, of Illinois.
Sec. 884
Therefore the only question left was as to the vote of Jackson
County. This vote the sitting Member had attacked, and taken evidence
to sustain the attack.
The basic facts in this case were substantially the same as in the
case of Switzler v. Dyer, already decided at this session,\1\ the oath
of loyalty being required before registration, and it being charged
that this requirement had been rendered inoperative by the corrupt acts
of a superintendent of registration named Phelan, in the county of
Jackson. The majority regarded this charge as proven, and say:
The officers of election also have no discretion in the receiving or
rejecting of votes. They are governed by the registration, and it is
made a penal offense for them to receive the vote of any person not
registered or to reject the vote of any person registered. It is of the
first consequence, therefore, that the registration be honest and pure,
for without that the purity of the election can not be maintained. and
if the registration be rejected the whole election falls. We think that
the evidence in this case establishes: That the removal of the first
board appointed by Phelan, and the appointment of their successors, who
made the registration, was the result of a corrupt agreement to that
effect, made by Phelan with Charles Dougherty and others, and was made
in the interest of one of the political parties in the county of
Jackson (pp. 20, 21); also that the registrars appointed were parties
to that corrupt agreement, or cognizant of it; and, further, that the
registration was conducted contrary to law and with the purpose of
carrying that corrupt agreement into effect.
In the case of Switzler v. Dyer, decided by this Congress, the
majority of the committee did not believe the fraudulent agreement in
that case charged to have been established by the evidence, made, and
therefore reported in favor of the contestant. The House, however,
reversed the finding of the committee in this report; rejected the vote
of Monroe County, which was in question, and gave the seat to the
contestee. In this case the majority of the committee find the corrupt
agreement established by the evidence, and upon the authority of the
case just quoted, as of many other cases, reject the registration of
Jackson County as fradulent, and with it reject the vote of that
county, which was the result of that fradulent registration.
This conclusion makes it unnecessary for the committee to consider
the irregularities shown to have occurred at the election, where
persons not on the list of registered voters were allowed to vote upon
the certificate of a single member of the board of registration (pp.
35, 36, 42), nor the defects in the poll books returned by the judges
of election to the clerk of the county court (pp. 42, 43, 53). The
rejection of the vote of Jackson County makes the vote of Robert T. Van
Horn 5,964 and of James Shields 5,352 and elects the former by a
majority of 612. The committee therefore recommend the adoption of the
following resolutions:
``Resolved, That James Shields is not entitled to a seat in the House
of Representatives in the Forty-first Congress from the Sixth
Congressional district of Missouri.
``Resolved, That Robert T. Van Horn is entitled to a seat in the
House of Representatives in the Forty-first Congress from the Sixth
Congressional district of Missouri.''
The resolutions were considered in the House on February 21, 1871,\2\
and were agreed to without debate or division.
884. The Tennessee election case of Sheafe v. Tillman, in the Forty-
first Congress.
A decision as to what constitutes the determination of result within
thirty days of which the notice of contest is to issue.
The action of a State executive in throwing out votes was disregarded
by the House.
The governor of a State, as canvassing officer, is not justified in
rejecting votes duly cast and returned.
-----------------------------------------------------------------------
\1\ See section 873 of this volume.
\2\ Third Session, Forty-first Congress, Journal, p. 388; Globe, p.
1474.
Sec. 884
An election officer appointed without authority of law was held not
to be an officer de facto.
There being evidence of both fraud and intimidation, the failure of
election officers to be sworn vitiated the returns.
On January 10, 1871,\1\ Mr. G. M. Brooks, of Massachusetts, from the
Committee of Elections, presented the report of the majority in the
Tennessee case of Sheafe v. Tillman. At the outset a preliminary
question was settled, the minority concurring in the view set forth by
the majority:
Before proceeding to a consideration of the merits of this case, a
question, preliminary in its nature, first should be disposed of. The
contestee in his answer claims that contestant did not serve notice of
his intention to contest his seat within the time required by statute,
and his specification is as follows:
``First. Because contestant did not file his notice or deliver a copy
of the same in time. Respondent's certificate is dated and was issued
on the 31st of December, 1868; and contestant's notice, or a copy of
it, was not served on or delivered to respondent until the 19th of
February, 1869, more than thirty days after the date and issuance of
the certificate to respondent.''
The United States statute of February 19, 1851, provides that--
``Whenever any person shall intend to contest an election he shall,
within thirty days after the result of such election shall have been
determined by the officer or board of canvassers authorized by law to
determine the same, give notice in writing to the member whose seat he
designs to contest, etc.'' (9 Stat. L., 568.)
To decide the question raised, it becomes necessary to ascertain at
what time the result of the election in the Fourth Congressional
district was determined by the officers ``authorized by law to
determine the same.''
Section 880 of the Code of Tennessee, page 232, provides that--
``The governor and secretary of state shall, as soon as the returns
are received, in the presence of such electors as choose to attend,
compare the vote in these several cases (among others for Members of
Congress) and declare the person receiving the highest number of votes
duly elected.''
From this provision it would seem that it was the intention of the
law that the governor and the secretary of state should personally meet
and, in the presence of such electors as choose to attend, make a
comparison of the votes. From the evidence introduced, it does not
appear that this requirement of the statute was ever complied with by a
comparison of the votes by the governor and the secretary of state
being personally present together and performing this duty. The
secretary of state in October, 1869, testified that he had not seen the
governor for nearly two years; that this provision of the code had been
treated as only directory by the State officers, and was understood
only to require a comparison of the duplicates which ought to be in
each office, and that even this had never been done by the governor and
secretary of state together to his knowledge. Without deciding the
question whether the above officers should personally compare the
returns, unquestionably the governor and the secretary of state, by the
Code of Tennessee, constitute the officers referred to in the United
States statute of February 19, 1851, above cited, and until they have
made a comparison of the votes, and definitely and finally acted upon
the matter, the result of the election can not be determined in such
manner as to bring a contestant within the provisions of the United
States statute last above cited.
The committee found that the governor by proclamation of February 11,
1869, had stated that he awarded the certificate to Mr. Tillman, The
report says:
The committee are of the opinion that if the provisions of section
880 of the Code ever had been complied with, according to the
construction given to the section by the secretary of state, yet there
had been no such determination of result of the election as required by
the United States statute of February 19, 1851, until after the
issuance of the commission to the contestee after February 11, 1869,
and therefore the notice, being given on February 15, 1869, was within
the time required by statute.
On the count of votes returned the contestant, Mr. Sheafe, had a
majority of 1,156 votes; but the governor had assumed to reject the
returns of one entire
-----------------------------------------------------------------------
\1\ Third Session, Forty-first Congress, House Report No. 3; 2
Bartlett, p. 907.
Sec. 884
county and parts of another county, thereby causing a plurality of 432
votes to result for Mr. Tillman. The committee was unanimous as to the
following conclusion:
There is no law of the State of Tennessee that gives authority to the
governor to reject the vote of any county or part of a county; his duty
is only to compare the returns received by him with those returned to
the office of the secretary of state, and, upon such comparison being
made, to ``deliver to the candidate receiving the highest number of
votes in his district the certificate of his election as Representative
to Congress.'' (Code of Tennessee, sec. 935, p. 239.) If illegal votes
have been cast, if irregularities have existed in the elections in any
of the counties or precincts, if intimidation or violence has been used
to deter legal or peaceable citizens from exercising their rights as
voters, to this House must the party deeming himself aggrieved look for
redress. This great power of determining the question of the right of a
person to a seat in Congress is not vested in the executive of any
State, but belongs solely to the House of Representatives.
(Constitution United States, Art. I, sec. 5.)
The action of the governor, so far as he has thrown out the votes of
counties or parts of counties, is to be disregarded, and the matters in
dispute are to be settled upon the actual returns and the evidence
introduced, independent of the doings of the executive.
In determining the actual result of the election the committee
consider, first, the county of Lincoln, which returned for Tillman 5
votes, and for Sheafe 554. The statutes of the State provided that the
governor should appoint a commissioner of registration for each county
of the State, and also that--
he is hereby fully empowered to set aside the registration of any
county in this State, or any part thereof of said registration, when it
shall be made to appear to the satisfaction of the governor that frauds
and irregularities have intervened in the registration of voters in
such county. The governor shall make known such fact, and set aside
said part or whole of said registration, when frauds are shown to have
been committed, by proclamation.
Some time prior to the November election in 1868 the governor by
proclamation did ``set aside and declare null and void all that part of
the registration of our county of Lincoln made by A. H. Russell, late
registration commissioner.''
The governor not making any other appointment, it was generally
assumed in the county that no legal election could be held, since the
statute provided that the commissioner of registration should appoint
``the judges and clerks of all elections,'' and ``hold all elections.''
But on the day preceding the election the county court of Lincoln
County appointed one C. S. Wilson to open and hold the election in the
county, and the said Wilson did in fact hold elections in seven of the
twenty-five districts in the county, and made returns thereof, signed
by himself as coroner. The report concludes as to this act of Wilson:
It is not necessary to discuss the question of the constitutional
powers of the governor to set aside a registration, for if this act of
his was unconstitutional, and he had no power to set aside a
registration and remove a commissioner, then there was no vacancy; the
commissioner had not been deprived of his office, and he was the only
person by law authorized to hold the election. But if this act of the
governor did have the effect of removing the commissioner, the county
court had no right under the statute to appoint an election officer;
the act of February 26, 1867, chapter 26, section 2, above referred to,
vested the appointing power of these officers wholly in the executive,
and repealed all laws in conflict therewith. Wilson, therefore, held
his office under no color of legal authority; was not even an officer
de facto, but was a mere usurper, and all acts done by him as such
officer were illegal and void; and when it appears that Wilson was
appointed by the court only the day prior to the election, so that it
would have been impossible that due notice of his appointment or of the
election could have been given; that elections were held in only seven
of the twenty-five districts of the county; that it was generally
understood that there was no officer legally appointed to hold the
elections, and that voters did not attend the polls on that account;
and when it further found that there existed in the county
organizations of men
Sec. 884
mounted, armed, and disguised, and known by the name of the Ku-Klux
Klan, banded together for political purposes, who, by their threats and
violence, intimidated and deterred voters from attending the polls,
there could not have been and was not such a full and free expression
of the will of the voters as is deemed necessary to constitute a fair
election. The committee, therefore, is of the opinion that this
election had no semblance of legality, and that the entire vote of
Lincoln County should be rejected.
The minority \1\ claimed that the action of the governor was void as
to the registration, and that the coroner was the proper officer to
hold the election under the old law, the repeal of which was not
admitted. The intimidation alleged by the majority was also denied.
The majority of the committee further find that in Marshall County
previous to the election there was intimidation by the Ku-Klux so that
there was not a free expression of public sentiment at the polls. For
this reason, and for the reasons set forth below, they recommended the
rejection of the poll. The report says:
The commissioner of registration of this county in his return states
that in the districts numbered 1, 4, 7, 13, and 15, which gave Tillman
9 and Sheafe 559 votes, ``no oath accompanied the poll box, but all
certified to be held according to law.'' And the evidence introduced
does not disclose that the oath required by statute was taken and
subscribed in the above districts in conformity to law.
The committee adheres to the principle enunciated in the contested
election cases of Barnes v. Adams, second session of this Congress,
viz, that it is not essential to the validity of an election that the
officers should be sworn, or should in all things be held to the strict
requirements of the law, so far as their qualifications for the office
which they hold are concerned. If it appears that there was no fraud in
the election, that it had been fairly conducted, and that there was an
opportunity for a full expression of the will of the voters at the
ballot box, the mere fact of the omission of an officer to take the
oath prescribed by law will not vitiate an election. But if, on the
other hand, the election was not fairly conducted, if there was fraud
in the ballot, if it should appear that there was an organized attempt
of a class of persons in the county to prevent citizens of one
particular political belief from depositing their votes freely and
peaceably, if intimidation was used to control the voters, and by these
means there was not a full, fair, and free expression of the will of
the voters at the ballot box, then, in such voting precincts where the
requirements of law were not complied with, the vote should be
rejected.
The report also approves the rejection of the returns of the first
district of Franklin because of intimidation exercised before the
election, and also because neither judges nor clerks were sworn
according to law. The report says:
In the first district, in which Tillman received 3 and Sheafe 293
votes, the poll book was among the papers in evidence; no oath
accompanied the same, and no statement or certificate appeared that any
of the officers were sworn; testimony was introduced showing that all
the officers were sworn except the one who held the election. It also
appeared in evidence that some persons voted without proper
certificates, and that the frauds perpetrated at the election were so
flagrant that the crowd about the ballot box regarded it as a huge joke
and seemed to enjoy it as such. It also appeared that the Ku-Klux
visited this district at times during the spring and summer of 1868, in
various numbers.
The majority of the committee recommended resolutions declaring
contestant not elected, and sitting Member entitled to the seat.
On February 14, 1871,\2\ the resolutions were taken up in the House
and were at once agreed to without debate or division. But it appeared
that there was some understanding, and on a motion to reconsider, the
report was debated at length. Then, on a motion to lay on the table the
motion to reconsider, there was a division, the motion being tabled--
yeas 123, nays 60. So the report of the majority of the committee was
sustained.
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\1\ Views filed by Mr. P. M. Dox, of Alabama.
\2\ Journal, p. 338; Globe, pp. 1219-1229.
Sec. 885
885. The Pennsylvania election case of Cessna v. Meyers, in the
Forty-second Congress.
When a voter's qualifications are objected to the burden of proof is
on the objecting party to show that the person voted for the competitor
and was disqualified.
Evidence of hearsay declarations of the voter is receivable only when
the fact that he voted is shown by evidence aliunde.
Declarations of the voter as to his vote must be clear and
satisfactory and clearly proven.
Discussion of the value as evidence of a party's declaration as to
his vote, whether a part of the res gestae or not.
Discussion of the English and American rules of evidence as applied
to the declarations of the voter.
Discussion of the status of the voter as a party to the proceedings
in a contested election case.
As to the application of technical rules of evidence in an election
case, which is a public inquiry.
On February 7, 1872,\1\ Mr. George F. Hoar, of Massachusetts, from
the Committee on Elections submitted the report in the Pennsylvania
case of Cessna v. Meyers. The sitting Member was returned by an
official majority of 15 votes. Contestant charged that a large number
of illegal votes were cast and counted for sitting Member, and sitting
Member also charged that illegal votes were similarly cast and counted
for contestant.
The committee passed upon two questions as to evidence:
(a) The State constitution prescribed the qualifications of voters,
and as to evidence the report says:
Under these constitutional provisions, the burden of proof, when
either party insists that a vote should be deducted from those cast and
returned for his competitor, is upon that party to show that the person
whose vote is in question voted; that the vote was for the competitor;
that the voter lacked some one of the following qualifications.
(b) As to the effect and sufficiency of certain testimony of voters,
the report says:
Another question of importance which has arisen in the discussion of
the cause is the question whether evidence of the declarations of
alleged voters, made not under oath, in the country, should be received
to show the fact that they voted, or for whom, or that they were not
legally entitled to vote.
Some of the committee think that such evidence ought in no case to be
admitted, except, of course, so far as declarations made at the time of
the party's intent or understanding as to his then present residence,
or his purpose in a removal, is admissible as part of the res gestae.
All of the committee are of opinion that such evidence is to be
received with the greatest caution, to be resorted to only when no
better is to be had, and only acted on when the declarations are
clearly proved, and are themselves clear and satisfactory. As this
question has been quite fully considered, it may be proper briefly to
discuss it here.
While the practice of the English House of Commons is not uniform,
the general current of the precedents is in favor of admitting the
declaration of voters as evidence.
The opinions of several American courts and of some text writers of
approved authority are the same way. The correctness of this practice
has been earnestly questioned in this House, and there is one deci-
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\1\ Second session Forty-second Congress, House Report No. 11;
Smith's, p. 60; Rowell's Digest, p. 266.
Sec. 885
sion against it; but, on the whole, the practice here seems to be in
favor of its admission. In England, where the vote for members of
Parliament is viva voce, the fact that the alleged voter voted, and for
whom, is susceptible commonly of easy proof by the record. In one case,
however, where the poll list had been lost, the parol declaration of a
voter how he voted seems to have been received without question. In
State v. Olin (23 Wis., 319) it is stated that the declaration of a
voter is admissible to prove that he voted, and for whom, as well as to
prove his disqualification. The general doctrine is usually put upon
the ground that the voter is a party to the proceeding, and his
declarations against the validity of his vote are to be admitted
against him as such. If this were true, it would be quite clear that
his declarations ought not to be received until he is first shown,
aliunde, not only to have voted, but to have voted for the party
against whom he is called. Otherwise it would be in the power of an
illegal voter to neutralize wrongfully 2 of the votes cast for a
political opponent--first, by voting for his own candidate; second, by
asserting to some witness afterwards that he voted the other way, and
so having his vote deducted from the party against whom it was cast.
But it is not true that a voter is a party in any such sense as that
his declarations are admissible on that ground. He is not a party to
the record. His interest is not legal or personal. It is frequently of
the slightest possible nature. If he were a party, then his admissions
should be competent as to the whole case--as to the votes of others,
the conduct of the election officers, etc., which it is well settled
they are not. Another reason given is that the inquiry is of a public
nature and that it should not be limited to the technical rules of
evidence established for private causes. This is doubtless true. It is
an inquiry of a public nature and an inquiry of the highest interest
and consequence to the public. Some rules of evidence applicable to
such an inquiry must be established. It is nowhere, so far as we know,
claimed that in any other particular the ordinary rules of evidence
should be relaxed in the determination of election cases. The sitting
Member is a party deeply interested in the establishment of his right
to an honorable office. The people of the district, especially, and the
people of the whole country are interested in the question who shall
have a voice in framing the laws. The votes are received by election
officers, who see the voter in person, who acts publicly in the
presence of the people, who may administer an oath to the person
offering to vote, and who are themselves sworn to the performance of
their duties. The judgment of these officers ought not to be reversed
and the grave interests of the people imperiled by the admissions of
persons not under oath and admitting their own misconduct.
The practice of admitting this kind of evidence originated in
England. So far as it has been adopted in this country it has been
without much discussion of the reasons on which it was founded. In
England, as has been said, the vote was viva voce. The fact that the
party voted, and for whom, was susceptible of easy and undisputable
proof by the record. The privilege of voting for members of Parliament
was a franchise of considerable dignity, enjoyed by few. It commonly
depended on the ownership of a freehold, the title to which did not, as
with us, appear on public registries, but would be seriously endangered
by admissions of the freeholder which disparaged it. An admission by
the voter of his own want of qualification was therefore ordinarily an
admission against his right to a special and rare franchise, and an
admission which seriously impaired his title to his real estate, an
admission so strongly against the interest of the party making it would
seldom be made unless it was true. It furnishes no analogy for a people
who regard voting not as a privilege of the few, but as the right of
all; where the vote, instead being viva voce, is studiously protected
from publicity, and where such admissions, instead of having every
probability in favor of their truth, may so easily be made the means of
accomplishing great injustice and fraud, without fear either of
detection or punishment.
It may be said that the principle of the secret ballot protects the
voter from disclosing how he voted, and, in the absence of power to
compel him to testify and furnish the best evidence, renders the resort
to other evidence necessary. The committee are not prepared to admit
that the policy which shields the vote of the citizen from being made
known without his consent is of more importance than an inquiry into
the purity and result of the election itself. If it is, it can not
protect the illegal voter from disclosing how he voted. If it is, it
would be quite doubtful whether the same policy should not prevent the
use of the machinery of the law to discover and make public the fact in
whatever way it may be proved. It is the publicity of the vote, not the
interrogation of the voter in regard to it, that the secret ballot is
designed to prevent. There would seem to be no need to resort to
hearsay evidence on this ground, unless the voter has first been
called, and, being interrogated, asserts his privilege and refuses to
answer. Even in that case, a still more conclusive objection to hearsay
testimony of this character is this: It is not at all likely to be
either true or trustworthy.
Sec. 886
The rule that admits secondary evidence when the best can not be had
only admits evidence which can be relied on to prove the fact, as sworn
copies when an original is lost, or the testimony of a witness to the
contents of a lost instrument. Hearsay evidence is not admitted in such
cases, and is only admitted in cases where hearsay evidence is, in the
ordinary experience of mankind, found to be generally correct, as in
matters of pedigree and the like. But a man who is so anxious to
conceal how he voted as to refuse to disclose it on oath, even when the
disclosure is demanded in the interest of public justice, and who is
presumed to have voted fraudulently--for otherwise, in most cases, the
inquiry is of no consequence--would be quite as likely to have made
false statements on the subject, if he had made any. To permit such
statements to be received, to overcome the judgment of the election
officers, who admit the vote publicly, in the face of a challenge, and
with the right to scrutinize the voter, would seem to be exceedingly
dangerous.
The action of the House heretofore does not seem to have been so
decided or uniform as to preclude it from now acting upon what may seem
to it the reasonable rule, even if it should think it best to reject
this claw of evidence wholly. But as both parties have taken their
evidence, apparently with the expectation that this class of evidence
would be received, and as, in view of the numerous and respectable
authorities, it is not unlikely the House may follow the English rule,
we have applied that to the evidence, with the limitation, of the
reasonableness of which it would seem there can be no question, that
evidence of hearsay declarations of the voter can only be acted upon
when the fact that he voted has been shown by evidence aliunde, and
when the declarations have been clearly proved, and are themselves
clear and satisfactory.
886. The case of Cessna v. Meyers, continued.
Discussion of the meaning of the words ``residence'' and ``domicile''
as related to the qualifications of a voter.
Persons working on a railroad and expecting to go thence on the
completion of the work may nevertheless be considered as having a
voting residence.
Sojourners in a place for the sole purpose of study at a college may
or may not have a legal residence therein.
Discussion of the law of residence as applied to paupers.
On the merits of the case the committee settled certain legal
principles, as determining the result. The constitution of Pennsylvania
provided as follows:
Article III, section 1. In elections by the citizens every (white)
freeman of the age of twenty-one years, having resided in this State
one year, and in the election district where he offers to vote ten days
immediately preceding such election, and within two years paid a State
or county tax, which shall have been assessed at least ten days before
the election, shall enjoy the rights of an elector. But a citizen of
the United States who had previously been a qualified voter of this
State, and removed therefrom and returned, and who shall have resided
in the election district and paid taxes as aforesaid, shall be entitled
to vote after residing in the State six months: Provided, That (white)
freemen citizens of the United States, between the ages of twenty-one
and twenty-two years, and having resided in the State one year and in
the election district ten days as aforesaid, shall be entitled to vote
although they shall not have paid taxes.
Interpreting this constitution the committee took the following
grounds as to the law of domicile:
It is claimed by the contestant that a considerable number of those
who voted for his competitor lacked the qualification of residence in
the election district. The largest number to whom this objection
applies came into the election district for the purpose of working upon
a railroad in process of construction therein, were employed in
building said railroad, and were not proved to have formed any
intention to reside in the district after its completion. The length of
time which the completion of the road would be likely to occupy was not
distinctly proved, but it was shown that persons who were in fact at
work upon it continued in the district for a longer period than
eighteen months. The committee have carefully considered the legal
question which is thus raised.
Sec. 886
The word ``residence'' used in the constitution of Pennsylvania in
describing the qualification of voters is equivalent to ``domicile,''
not in the sense in which a man may have a commercial domicile or
residence in one country while his domicile of origin and of allegiance
is in another, but in the broadest sense of the term. As it is upon the
meaning of this word that the case chiefly turns, it will be well to
consider it a little more fully.
The word ``domicile,'' or ``residence,'' as used in law, is incapable
of exact definition. Inquiries into it are very apt to be confused by
taking the tests which have been found satisfactory in some cases and
attempting to apply them as inflexible rules in all. Probably the
definition which is most expressive to the American mind is that a
man's domicile is ``where he has his home.'' Two or three rules,
however, are well established. A man must have a domicile somewhere; a
domicile once gained remains until a new one is acquired; no man can
have two domiciles at the same time. With these exceptions, it will, we
believe, be found that nearly every rule laid down on the subject in
the books, even if generally useful, fails to be of universal
application, and would be opposed to the common sense of mankind if
extended to some states of fact that may arise. For instance, Vattel
defines domicile to be a fixed residence in any place with an intention
of always staying there. On this Judge Story (Conflict of Laws, sec.
43) well remarks:
``This is not an accurate statement. It would be more correct to say
that that place is properly the domicile of a person in which his
habitation is fixed without any present intention of removing
therefrom.''
But certainly Judge Story's definition is not much better. A man's
domicile remains after he forms the intention of removing therefrom,
and sometimes even after he removes, until he gets another. A man may
acquire a domicile, if he be personally present in a place and elect
that as his home, even if he never design to remain there always, but
design at the end of some short time to remove and acquire another. A
clergyman of the Methodist Church, who is settled for two years, may
surely make his home for two yews with his flock, although he meant, at
the end of that period, to remove and gain another. So of the principle
upon which the contestant most relies in the present case.
He claims--and many expressions can be found used by commentators and
in judicial decisions which seem to support the claim--that personal
presence in a place with intent to remain there only for a limited time
and for the accomplishment of a temporary purpose, and to depart when
that purpose is accomplished, will not constitute a residence. This is
true as a general rule. It is true of those persons, probably the
greater number, who, while so present and engaged in business, have
some other principal seat of their interests and affections elsewhere.
Most men have some permanent home, the claim of which outweigh those of
a place of temporary sojourn. The place where a man's property is,
where his family is, the place to which he goes back from time to time
whenever no temporary occasion calls him elsewhere, the domicile of his
origin, where the permanent and ordinary business of his life is
conducted--that is to the ordinary man the place of his home. But we
are now dealing with a claw of persons who have no property, who have
no family, or whose family moves with them from place to place, who
have no place to return to from temporary absences, the domicile of
whose origin is in another country, and has been in the most solemn
manner renounced, and the ordinary business of whose life consists in
successive temporary employments in different places.
Suppose a man, single, with no property, to come from Ireland and be
employed all his life on railroads or other like works in different
places in succession. If he does not acquire a residence he can never
become a citizen, because he never would reside in this country at all.
It seems to us that to such persons the general rule above stated does
not apply. But where a man who has no interests or relations in life
which afford a presumption that his home is elsewhere, comes into an
election district for the purpose of working on a railroad for a
definite or an indefinite period, being without family or having his
family with him, expecting that the question whether he shall remain or
go elsewhere is to depend upon the chances of his obtaining work,
having abandoned, both in fact and in intention, all former residences,
and intends to make that his home while his work lasts--that will
constitute his residence, both for the purpose of such jurisdiction
over him as residence confers and for the purpose of exercising his
privileges as a citizen. Of course the intent above supposed must be in
good faith and an intent to make such district the home for all
purposes. The party's intent to vote in the district where he is, he
knowing all the time that his home is elsewhere, will not answer the
law.
The rule is stated by Chief Justice Shaw, in Lyman v. Fiske (5 Peck,
234) as follows: ``It is difficult
Sec. 886
to give an exact definition of habitancy. In general terms, one may be
designated as an inhabitant of that place which constitutes the
principal seat of his residence, of his business pursuits, connections,
attachments, and of his political and municipal relations. It is
manifest, therefore, that it embraces the fact of residence at a place
with the intent to regard it his home. The act and the intent must
concur, and the intent may be inferred from declarations and conduct.
It is often a question of great difficulty, depending upon minute and
complicated circumstances, leaving the question in so much doubt that a
slight circumstance may turn the balance. In such a case the mere
declaration of the party, made in good faith, of his election to make
the one place rather than the other his home, would be sufficient to
turn the scale.''
The article in the appendix to volume 4 of Doctor Lieber's
Encyclopedia Americana, title Domicile written by Judge Story, is,
perhaps, the best treatise on this subject to be found. He says: ``In a
strict and legal sense, that is properly the domicile of a person where
he has fixed his true, permanent home and principal establishment, and
to which, whenever he is absent, he has the intention of returning.''
It is often mere question of intention. If a person has actually
removed to another place, with an intention of remaining there for an
indefinite time and as a place of present domicile, it becomes his
place of domicile, notwithstanding he may have a floating intention to
go back at some future period. A fortiori would this be true if his
``floating intention'' were to go elsewhere in future and not to go
back, as in such case the abandonment of his former home would be
complete.
In the Allentown election case (Brightly's Lead. Cases on Elections,
475) it is said: ``Unmarried men, who have fully severed the parental
relation, and who have entered the world to labor for themselves,
usually acquire a residence in the district where they are employed, if
the election officers be satisfied they are honestly there pursuing
their employment, with no fixed residence elsewhere, and that they have
not come into the district as `colonizers,' that is, for the mere
purpose of voting, and going elsewhere as soon as the election is
held.'' ``The unmarried man who seeks employment from point to point,
as opportunity offers, and who has severed the parental relation,
becomes a laborer, producing for himself, and thus adds to the
productive wealth of the community in which he resides, being willing
not only to enjoy political privileges, but also to assume and
discharge political and civil duties.'' A fortiori would this reasoning
apply to the married laborer who takes his family with him.
The habits of our people, compared with many other nations, are
migratory. To persons, especially young men, in many most useful
occupations the choice of a residence is often experimental and
temporary. The home is chosen with intent to retain it until the
opportunity shall offer of a better. But if it be chosen as a home, and
not as a mere place of temporary sojourn, to which some other place,
which is more truly the principal seat of the affections or interests,
has superior claim, we see not why the policy of the law should not
attach to it all the privileges which belong to residence, as it is
quite clear that it is the residence in the common and popular
acceptation of the term.
The case of Barnes v. Adams (3 Con. El. Cas., 771) does not, when
carefully examined, conflict with these rules. The passage cited from
that case is not a statement of the grounds on which the House or even
the committee determined the case, but a concession to the party
against whom it was decided. It therefore, if it bore the meaning
contended for, would not be authority in future cases. But the language
taken together, it seem to us, means only that going into an election
precinct for a temporary purpose, with the intent to leave it when that
purpose is accomplished, no other intent and no other fact appearing,
is not enough to gain a residence. In this view, it is not in conflict
with the opinion here expressed.
It is true that, as was remarked in the outset, a former residence
continues until a new one is gained. But in determining the question
whether a new one has been gained, the fact that everything which
constituted the old one--dwelling house, personal presence, business
relations, intent to remain--has been abandoned is a most significant
fact.
The above principles are then applied.
(a) To a class of railroad laborers and contractors--
The cases of the railroad laborers and contractors should be disposed
of by the following rules:
1. Where no other fact appears than that a person, otherwise
qualified, came into the election district for the purpose of working
on the railroad for an indefinite period, or until it should be
completed, and voted at the election, it may or may not be true that
his residence was in the district. His vote
Sec. 887
having been accepted by the election officers, and the burden being on
the other side to show that they erred, we are not warranted in
deducting the vote.
2. Where, in addition, it appears that such voter had no dwelling
house elsewhere, had his family with him, and himself considered the
voting place as his home until his work on the railroad should be over,
we consider his residence in the district affirmatively established.
3. On the other hand, where it appears that he elected to retain a
home, or left a family or a dwelling place elsewhere, or any other like
circumstances appear, negativing a residence in the voting precinct,
the vote should be deducted from the candidate for whom it is proved to
have been cast.
(b) As to certain students--
The principles applicable to the students are not dissimilar. The
law, as it applies to this class of persons, is fully and admirably
stated by the supreme court of Massachusetts, in an opinion given to
the legislature, and reported in Fifth Metcalf, and which is cited with
approbation in nearly all the subsequent discussions of the subject.
Under the rule there laid down, the fact that the citizen came into the
place where he claims a residence for the sole purpose of pursuing his
studies at a school or college there situate, and has no design of
remaining there after his studies terminate, is not necessarily
inconsistent with a legal residence, or want of legal residence, in
such place. This is to be determined by all the circumstances of each
case. Among such circumstances the intent of the party, the existence
or absence of other ties or interests elsewhere, the dwelling place of
the parents, or, in the case of an orphan just of age, of such near
friends as he had been accustomed to make his home with in his
minority, would of course be of the highest importance. (See Putnam v.
Johnson, 10 Mass., 488.)
(c) As to paupers--
The case of the paupers presents greater difficulty. Under the laws
of Pennsylvania it is conceded they may be entitled to vote. In several
contested election cases cited by the contestant it is stated by the
committee that, in the absence of statute regulations on the subject, a
pauper abiding in a public almshouse, locally situated in a different
district from that where he dwells when he becomes a pauper, and by
which he is supported, away from his original home, does not thereby
change his residence, but is held constructively to remain at his old
home. (Monroe v. Jackson, 2 Elect. Cas., 98; Covode v. Foster, Forty-
first Congress; Taylor v. Reading, Forty-first Congress.)
And there are some strong reasons for this opinion. The pauper is
under a species of confinement. He must submit to regulations imposed
by others, and the place of his abode may be changed without his
consent. Having few of the other elements which ordinarily make up a
domicile, the element of choice also in his case almost wholly
disappears. There are also serious reasons of expediency against
permitting a class of persons who are necessarily so dependent upon the
will of one public officer to vote in a town or district in whose
concerns they have no interest. On the other hand, the pauper's right
to vote is recognized by law. It can practically very seldom be
exercised except in the near neighborhood of the almshouse. In the case
of a person so poor and helpless as to expect to be a lifelong inmate
of the poorhouse it is, in every sense in which the word can be used,
really and truly his residence--his home. And it is important that
these constitutional provisions as to suffrage should be carried out in
their simplest and most natural sense, without the introduction of
artificial or technical construction. It will, however, be unnecessary
to determine this question, as will hereinafter appear.
In accordance with these conclusions the committee reported that the
sitting Member, Mr. Meyers, was entitled to hold his seat, and a
resolution to that effect was presented.
On March 12 \1\ the report was debated and the resolution of the
committee was agreed to without division.
887. The Alabama election case of Norris v. Handley in the Forty-
second Congress.
The House can not be precluded from going behind the returns by the
fact that a State law gives canvassers the right to reject votes for
fraud or illegality.
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\1\ Journal, p. 495; Globe, p. 1610.
Sec. 887
The decision of a board of canvassers as to the legality of votes,
made in pursuance of State law, is regarded as prima facie correct.
It is an extraordinary and dangerous policy for a State law to lodge
in canvassing officers the power to reject votes.
General testimony that voters were deceived by false tickets, etc.,
does not, in the absence of specific proof, justify the rejection of a
poll.
General intimidation may not be proven solely by hearsay and general
reputation without specific testimony of the voters.
A comparison of the votes cast with the population may be admitted as
bearing on the question of intimidation.
On March 14, 1872 \1\ Mr. George W. McCrary, of Iowa, from the
Committee of Elections, presented the report of the committee in the
contested case of Norris v. Handley, of Alabama. The sitting Member had
been returned by a certified majority of 3,142. The contestant alleged
that this majority had been procured by fraud, violence, and
intimidation.
At the outset the committee discuss a question as to the power of
canvassing officers:
The statute of Alabama, defining the powers and duties of the board
of county canvassers or supervisors of elections, provides as follows:
``That it shall be the duty of the board of supervisors of elections,
upon good and sufficient evidence that fraud has been perpetrated or
unlawful or wrongful means resorted to to prevent electors from freely
and fearlessly casting their ballots, to reject such illegal or
fraudulent votes cast at any such polling place, which rejection so
made as aforesaid shall be final unless appeal is taken within ten days
to the probate court.'' (Acts of 1868, p. 277, sec. 37.)
Another section provides that this ``board of supervisors of
elections ``shall be composed of the judge of probate, sheriff, and
clerk of the circuit court in each county.
In the opinion of the committee it is not competent for the
legislature of a State to declare what shall or shall not be considered
by the House of Representatives as evidence to show the actual votes
cast in any district for a Member of Congress, much less to declare
that the decision of a board of county canvassers, rejecting a given
vote, shall stop the House from further inquiry. The fact, therefore,
that no appeal was taken from the decision of the board of canvassers,
rejecting the vote of Girard precinct, can not preclude the House from
going behind the returns and considering the effect of the evidence
presented.
The committee in another place comment again on this power lodged
with the board of canvassers:
Although this is an extraordinary, not to say a dangerous, power when
placed in the hands of a board of this character, with such inadequate
facilities for obtaining legal evidence and deciding upon questions of
fraud, yet it is believed by the committee that the action of such a
board, under the statute in question and in pursuance of the power
conferred thereby, is to be regarded as prima facie Correct, and to be
allowed to stand as valid until shown by evidence to be illegal or
unjust.
Having thus discussed the powers of the canvassing officers under the
law, the committee considers their action in rejecting certain returns
from Macon County.
The testimony of but one witness has been taken in relation to the
rejection of these votes in Macon County, and that is the testimony of
J. T. Menafee, judge of probate, and ex officio one of the board of
canvassers. He testifies that the board spent several days in the work
of revising the vote of the county.
They had no evidence before them, however, except the registration
list and the poll list. The former is shown to have been exceedingly
imperfect and unreliable and can not be considered such
-----------------------------------------------------------------------
\1\ Second session Forty-second Congress, House Report No. 33; Smith,
p. 68.
Sec. 887
``good and sufficient evidence'' as the statute requires to justify the
board in rejecting the votes in question.
The presumption is strongly in favor of the legality of a vote which
has been received by the officers provided by law for that purpose; and
the question is whether this presumption can be overcome by evidence so
unsatisfactory as that upon which the board acted. The board were
empowered by the statute we have quoted to obtain evidence of the
alleged illegality and fraud practiced at the precincts named, and they
were not limited to an examination of the registration list and the
poll list. Since no evidence was taken it is our opinion that the
decision of the officers of election at the various precincts,
admitting the votes in question, is entitled to greater weight than the
action of the board of canvassers in throwing them out. The former had
the voters before them and the power to examine them as to their
qualifications, while the latter, in our judgment, had no reliable
evidence before them upon which to act.
The contestant had asked that 325 votes be stricken from sitting
Member's return for Silver Run, Russell County, on the ground that 325
voters who would have voted for contestant were deceived into voting
for sitting Member. In support of this several witnesses testified what
they had heard or read in the newspapers; others gave their opinions as
to the proportion of black and white people who voted. One witness
swore that he saw tickets of sitting Member's party headed with the
name of contestant's party and believed that the freedmen were deceived
thereby. As to this the committee say:
When, however, an attempt is made to say, from the evidence before
us, with anything like accuracy, how many voters, if any, were in this
manner deceived, it will be found impossible. If the facts be as
contestant claim, it was within his power to prove them by evidence, at
least, reasonably satisfactory. He should have proven the number of
votes cast, and for whom cast, by the returns, or a certified copy
thereof. He should have shown the names of the persons who voted by the
poll list, and he should have called the voters themselves, or some of
them, to prove how many and who intended to vote for him and were
defrauded by being furnished a ticket resembling the Republican ticket,
but containing the name of the sitting Member as a candidate for
Congress. As the evidence is presented to us, it would not justify any
action unless it might possibly be the rejection of the vote of the
precinct, which would vary the general result by only 140 votes. If
there was a fraud perpetrated, and we are inclined to the opinion, from
the scanty evidence before us, that there was, it is utterly impossible
to determine how many votes contestant lost and his competitor gained
thereby.
In accordance with the principles set forth as above, the committee
purged the returns, but found that there still remained a majority of
nearly 2,000 votes for sitting Member.
There remained, then, a question as to violence and intimidation,
alleged by contestant, which became the material question of the case.
The committee say at the outset:
Upon this subject it is to be observed, in the first place, that the
evidence is exceedingly vague and unsatisfactory. It would seem that if
over two thousand electors were deterred from voting by violence,
threats, or intimidation, some of these electors could be found to come
forward and swear to the fact. Your committee think that it would
establish a most dangerous precedent to allow a fact of this character,
so easily established by the direct and positive testimony of so many
witnesses, to be proven solely by hearsay and general reputation. We
have not forgotten nor overlooked the fact that the same state of
things which would make men afraid to vote for a particular party might
also make it difficult to secure testimony in behalf of that party. But
in many parts of the district where testimony, was taken there is no
pretense that witnesses were intimidated; and, besides, if the
contestant had shown to the satisfaction of the House that witnesses
needed the protection of the Federal Government in order to be safe in
testifying fully and freely, that protection would have been afforded
at any cost. In the volume of testimony taken to prove the fact of
general and wide-spread intimidation, not one
Sec. 888
witness is found who testifies that he himself was prevented from
voting by reason of intimidation. They all testify to what they have
heard others say, to the common rumor, and general reputation. There
can be no doubt that testimony of this character ought to be held
insufficient of itself to establish the fact of intimidation. It ought
at least to be corroborated by other facts, such as the unexplained
failure of large numbers of those alleged to have been intimidated, to
vote, before the House could safely act upon it.
Nevertheless the committee considered the evidence, and determined
that it fell short of sustaining the contestant's allegations. It
appeared that there was no phenomenal suppression of the vote in the
district, since a comparison of the vote with the population, tested in
the light of the usual ratio of voters to population, showed that the
total vote fell short of what might have been expected by only 581
persons. This effectually disproved, taken with the weakness of the
direct testimony, the contention that 2,000 or more voters were
deterred from voting. In conclusion the committee say:
It must not be supposed that the committee have overlooked or failed
to consider the fact that gross wrongs and outrages are shown by the
evidence to have been inflicted upon some of the freedmen in the
district in question. Threats were undoubtedly made against this class
of voters of personal injury or dismissal from employment in case they
voted the Republican ticket, and these threats were carried out after
the election, in several instances at least, in the brutal whipping of
a number of freedmen in the night time by disguised men, and by the
dismissal of others from employment. Several churches, occupied by
freedmen for worship, were prior to the election burned down. Several
cases of apparently unprovoked murder are in proof, and several cases
of shooting and wounding. A white woman, who had been a teacher among
the freedmen, was compelled to flee in the night time from her home,
and a freedman who was a preacher among his people was at the same time
brutally murdered. Other cases similar in character are in proof, and
it does not appear that the perpetrators of a single one of these
outrages have ever been tried or punished, or that any vigorous or
determined effort has been made to apprehend or punish any of the
criminals. These crimes were well calculated to alarm and intimidate
the colored people, and it must be said to their great credit that, in
spite of all the dangers and difficulties, the great body of them did
in fact exercise their right to vote, many of them traveling 10, 15,
and even 20 miles from their homes for that purpose. These outrages,
therefore, do not invalidate the election, because they did not
intimidate the freedmen. We call attention to them now, to denounce
them as most infamous, and to show that they have not escaped our
attention.
The committee therefore, in view of the conclusions reached by them,
recommended a resolution declaring:
Resolved, That W. A. Handley is entitled to retain his seat in this
House as Representative from the Third district of Alabama.
On April 4 \1\ this resolution, after an explanatory speech by Mr.
McCrary, was agreed to without division.
888. The Indiana election case of Gooding v. Wilson, in the Forty-
second Congress.
Official and formal counts should be set aside on subsequent,
informal, and unofficial counts only when the ballots are inviolably
kept and the subsequent count is safeguarded.
A vote being admitted should not be rejected on evidence that merely
throws a doubt on it.
Should the fact that judges of election are not freeholders as
required by law impair their acts as de facto officers?
-----------------------------------------------------------------------
\1\ Journal, p. 631; Globe, p. 2172.
Sec. 888
Does the absence from the returns of certificates prescribed by law
vitiate an election of which the result may be known from other legal
returns?
As to the sufficiency of ballots bearing only the last name of the
candidate.
On April 9, 1872,\1\ Mr. Aaron F. Perry, of Ohio, from the Committee
on Elections, presented the report of the majority of the committee in
the Indiana contested case of Gooding v. Wilson. The sitting Member had
been returned by an official majority of 4 votes. Contestant assailed
this result on two grounds: The correctness of the count and the
legality of certain votes.
(1) As to the correctness of the count, the majority report says:
The proof of these mistakes, all except one, consists in evidence of
subsequent informal and unofficial counts, made at a considerable time
after the election; and as to the one exception, the proof, if such it
can be called, is even less satisfactory.
On examination of precedents, it does not appear that this House
favors the setting aside of official and formal counts, made with all
the safeguards required by law, on evidence only of subsequent informal
and unofficial counts, without such safeguards. No instance was cited
at the hearing where the person entitled by the official count was
deprived of his seat by a subsequent unofficial count. On principle it
would seem that if such a thing were, in the absence of fraud in the
official count, in any case admissible, it should be permitted only
when the ballot boxes had been so kept as to be conclusive of the
identity of the ballots, and when the subsequent count was made with
safeguards equivalent to those provided by law. In the absence of
either of these conditions, the proof, as mere matter of fact and
without reference to statutory rules, would be less reliable and
therefore insufficient.
In the present case both of these conditions are wanting. The ballot
boxes were not kept in a way to be conclusive of the identity of the
ballots, nor were the subsequent counts conducted in a way to entitle
them to credit as against the official count.
The statute of Indiana requires at each poll, in addition to other
officers, an officer called an inspector, who is required to preserve
the ballots, one poll book, and a tally paper six months after the
election, except when such election is contested; then they shall be
preserved, subject to the order of any court trying such contest, until
the same is determined. The official count appears to have been a
careful one. The three unofficial counts differed each from the other,
and all differed from the official one. Neither of the unofficial
counts was made under circumstances to command confidence as against
the official count.
In the debate \2\ Mr. George W. McCrary, of Iowa, elaborated this
more fully:
I do say that there is great danger in setting aside the official
count and substituting for it an unofficial count in any case. * * * In
the first place, if the law provides an officer whose duty it is to
hold possession of the ballot boxes and the ballots themselves after
the polls have been closed, I think that no recount should ever be
allowed unless it appear that the ballot boxes and ballots had remained
in the custody of that officer during the interval between the election
and the recount. That ought always to be one of the prerequisites, and
without it there can be neither certainty nor safety. * * * It must
appear that the ballots have been securely kept, that they have not
been exposed, and that there has been no opportunity to tamper with
them. This ought to appear affirmatively. * * * If the law provides the
mode of preserving the ballots, and of having them recounted, that mode
should in every case be strictly followed. * * * Now, in the State of
Indiana there is such a law. * * * Now, Mr. Speaker, this law was
violated in the case of every one of these recounts. They should have
subpoenaed before the court trying the contest in this case the
inspector of the election, who was the legal custodian of the ballot
box, and should have shown by his testimony that the ballot box had
remained in his possession, and had been so securely and carefully kept
that it could not have been
-----------------------------------------------------------------------
\1\ Second session Forty-second Congress, House Report No. 41; Smith,
p. 79.15\2\ Globe, p. 2655.
Sec. 888
tampered with. The identity of the ballots must always be shown by the
legal custodian of them. * * * The House can not depend upon a recount
made by any outsider who goes surreptitiously or otherwise and gets
possession of the ballot box. It must be done in the presence of the
court or of an officer. * * * In this case neither of the things has
been done.
The minority views, presented by Mr.,W. E. Arthur, of Kentucky, did
not argue this point at length, but in the debate,\1\ Mr. Arthur went
into the precedents of the House at length to justify the recounts. In
reply it was asserted that while committee reports had sometimes
justified an unofficial count, the House had never acted upon the
result of such recount.\2\
There was also a difference, of opinion as to the sufficiency of the
testimony on the custody of the ballots and the carefulness of the
unofficial recount.
A second question related to legality of certain votes cast for
sitting Member. The majority of the committee thus dispose of this
point:
Most of the questions were questions of residence or nonresidence.
Evidence which might have been sufficient to put the voter to his
explanation, if challenged at the polls, is not deemed sufficient to
prove a vote illegal after it has been admitted. Nor has the mere
statement by a witness that a voter was or was not a resident, without
giving facts to justify his opinion, been considered sufficient to
throw out such a vote. The testimony shows a number of instances where
a witness would state positively the residence or nonresidence of a
voter on some theory of his own, or some mistake of fact, when other
testimony would show with entire clearness that the vote was legal. The
adoption of laxer rules of evidence would affect both sides, and change
the result very little, if at all. After a vote has been admitted,
something more is required to prove it illegal than to throw doubt upon
it. There ought to be proof which, weighed by the ordinary rules of
evidence, satisfies and convinces the mind that a mistake has been
made, and which the House can rest upon as a safe precedent for like
cases. In regard to most of the alleged illegal votes on both sides,
the proof, however plausible, falls short of the requirement.
In accordance with the principles set forth in its report, the
majority of the committee find for sitting Member a clear majority of 8
votes.
This did not render it necessary for the majority of the committee to
investigate certain objections made by the sitting Member to returns
and votes affecting the poll of the contestant.
The minority, as part of their argument--
(1) The minority views say:
Contestee has alleged and proved that some one or more of the acting
judges of election at the following-named precincts were not at the
time freeholders; that they were therefore ineligible; and that the
entire vote and return of such precincts must be rejected, to wit:
[Here follows an enumeration of 20 precincts.]
And contestee has insisted that the question of ineligibility
involved in these specifications is decisive of the case in his favor.
By excluding the entire vote of the legal voters of those 20 precincts
he claims his majority will then be more than 300 over contestant, even
if ``other matters attempted to be proven for contestant be taken in
his favor.''
The officers all acted under appointment; all acted in good faith;
were all sworn; no objection at the time was raised; no other person
claimed the position, and the entire people acquiesced in their
official acts.
The law of Indiana required that every judge of election should be a
freeholder.
Under the circumstances above recited, if a person acted as a judge
of election who at the time was ineligible to that position, for want
of the qualification required by the statute, must the election of that
precinct for that cause be held void, and the votes and returns be set
aside and rejected?
-----------------------------------------------------------------------
\1\ Globe, pp. 2657, 2658.
\2\ Speech of Mr. George F. Hoar, of Massachusetts, Globe, p. 2667.
Sec. 889
Contestee says yes, and appeals to the law and the precedents. We say
no; and we go further, and say that the great preponderance of both law
and precedent is on the side of the negative of that question. The
result of a very patient investigation of the election cases of this
House is the conclusion on our part that the rule is substantially
that--
Ineligibility or want of statutory qualification on the part of an
officer of election, otherwise capable, and acting in good faith, and
with the acquiescence of the voting public, will not, of itself,
vitiate or impair the poll or return. (Barnes v. Adams, Dig. El. C.,
760; Eggleston v. Strader, ibid., 897.)
(3) As to the certificate of a certain precinct:
1. Contestee alleged and proved that the law of the State of Indiana
required the board of judges of the election to make out an attested
certificate in written words of the number of votes each person
received, etc., and return the same, together with the list of voters,
and one of the tally papers, to the county board; and that the board of
judges of West precinct, township of Hendricks, county of Shelby,
failed to return such certificate. The proof shows that this failure
was an innocent inadvertence. The poll lists, tally papers, and ballots
were all properly returned, and are unimpeached.
Contestee insists that the omission of that certificate vitiates that
poll, and that the returns and votes of that precinct should be
rejected from the count. And he insists upon it with great confidence,
and cites authorities in support of the position, all of which we have
carefully examined.
We respectfully submit that his authorities do not sustain his
position in this case. And these, when carefully considered, along with
those numerous other authorities directly in point, to which he has not
referred, have brought us to a conclusion directly the opposite of that
insisted on by contestee.
Is such a certificate indispensable? We say it is not, and so say the
authorities. The rule as established by the courts and by the
precedents of the House is substantially as follows:
In the absence of the certificate prescribed by law, recourse will be
had to the poll lists, the ballots, or other returns; and if from
these, or any of them, the result can be ascertained, and there is no
taint of fraud, effect will be given to the result precisely as though
the certificate was present. (Chrisman v. Anderson, 2 El. C., 331-334;
Blair v. Barrett, 2 El. C., 315.)
(4) As to the sufficiency of a ballot:
At the precinct in the township of Brandywine, county of Shelby, two
ballots were counted for contestee which had on them for Congress
merely the letters ``Wilson.'' On their face the ballots were ambiguous
and unintelligible. The defect was curable by extrinsic evidence to
explain and apply them; it has not been offered, and the defect is
fatal to both ballots, and they are deducted from contestee's vote in
this count.
The minority, in accordance with their conclusion, found for
contestant a majority of 17 votes, and accordingly recommended the
following as a substitute for the resolution of the majority:
Resolved, That Jeremiah M. Wilson was not duly elected and is not
entitled to the seat in the Forty-second Congress from the Fourth
district of the State of Indiana.
Resolved, That David S. Gooding was duly elected and is entitled to
the seat in the Forty-second Congress from the Fourth district of the
State of Indiana, and should be admitted to his seat.
On April 22 \1\ the report was debated at length, and the proposition
of the minority was negatived, yeas 64, nays 105. Then the majority
resolution was agreed to without division, and sitting Member retained
the seat.
889. The election case of Burleigh and Spink v. Armstrong, from
Dakota Territory, in the Forty-second Congress.
The House rejected votes cast at a precinct on an Indian reservation
which was by law excluded from the domain of a Territory.
The House counted votes cast at a precinct within a military
reservation
-----------------------------------------------------------------------
\1\ Journal, pp. 723, 724; Globe, pp. 2654-2670.
Sec. 889
tion of which the title and jurisdiction were temporarily with the
United States by Executive order.
On April 12, 1872,\1\ Mr. M. M. Merrick, of Maryland, from the
Committee on Elections, submitted the report of the committee in the
case of Burleigh and Spink v. Armstrong, of Dakota Territory. The
official returns gave Spink 1,023 votes, Burleigh 1,102, and Armstrong
1,198. Accordingly the certificate was issued to Mr. Armstrong, and he
was sworn in.
The first question which arose was as to the legality of certain
votes cast upon United States military reservations:
By the law organizing the Territory of Dakota (12 Stat. L., p. 239)
it is provided that the Territory of Dakota shall not include any
territory which, by treaty with any Indian tribe, is not, without the
consent of said tribe, to be included within the territorial limits or
jurisdiction of any State or Territory; but all such territory shall be
excepted out of the boundaries, and constitute no part of the Territory
of Dakota until said tribe shall signify their assent to the President
of the United States to be included in said Territory, or to affect the
authority of the Government of the United States to make any
regulations respecting such Indians, their lands, property, or other
rights by treaty, law, or otherwise, which it would have been competent
for the Government to make if the act had been passed. It is quite
apparent from the terms of this organic act that it was not competent
for the authorities of the Territory to hold an election or exercise
any other jurisdictional act within any part of the Indian reservations
embraced within the exterior bounds of the Territory, and the proof
establishing the fact that the Buffalo, or Fort Thompson, precinct was
established, and the election there held within an existing Indian
reservation, the committee have excluded all the votes cast there from
their computation. But with regard to the election held within the
military reservations of Fort Sully and Fort Randall (or the Ellis
precinct), the committee have reached the conclusion that there is
nothing in the terms of the organic act nor in the general policy of
the law forbidding an election to be held at such places. The
contestants have insisted that the rule which disqualifies persons from
voting within any State, who reside within forts or other territory to
which the title and jurisdiction has been ceded by the State to the
Federal Government, applies to the military reservations which have
been designated by the Executive within the Territories belonging to
the United States. But forasmuch as there is no conflict of sovereignty
between the Government and the Territory, and the latter holds all its
jurisdiction in subordination to the controlling power of Congress, and
the military reservations are not permanently severed from the body of
the public lands, but are simply set apart and withheld from private
ownership by an Executive order to the Commissioner of the Land Office,
and may be and often are restored to the common stock of the public
domain, when the occasion for their temporary occupancy has ceased, at
the pleasure of Congress, and which requires no concurrent act of any
State authority to give it efficacy, the residents upon such
reservations, although abiding thereon by the mere sufferance of the
United States authorities, do not in any just sense cease to be
inhabitants or residents of the Territory within which such military
reserve may be situated. Such residents seem to the committee to have
that same general interest in the welfare of the community in which
they live and the same right to vote there as any of the workmen at the
arsenal or navy-yard in Washington City, who may be allowed to sojourn
within their limits, have to vote at elections within the District of
Columbia for officers of its Territorial government, or for a Delegate
in Congress from that District.
As to charges of illegal voting by Indians and nonresidents, the
committee found evidence of great irregularities, but the testimony
failed to show that one candidate had profited more than another by
them.
Therefore the committee reported a resolution confirming the title of
sitting Delegate to the seat.
On January 22, 1873,\2\ the resolution reported by the committee was
agreed to without division.
-----------------------------------------------------------------------
\1\ Second session Forty-second Congress, House Report No. 43; Smith,
p. 89.
\2\ Third session Forty-second Congress, Journal, p. 230; Globe, p.
794.
Sec. 890
890. The Florida election case of Niblack v. Walls in the Forty-
second Congress.
Instance wherein the time of taking testimony in an election case was
twice extended.
A return impeached by the evidence of an election officer is rejected
as worthless and is not received for any purpose.
Returns impeached on their face and forwarded irregularly were not,
counted by the House until explained by evidence.
The law requiring a return to be signed by three officers, at least
two must sign to make the certificate evidence.
On January 21, 1873,\1\ Mr. George W. McCrary, of Iowa, from the
Committee of Elections, submitted the report in the Florida case of
Niblack v. Walls. The State canvassers had so certified the result as
to show a majority of 629 for the sitting Member, but had reached this
result by rejecting the returns from 8 counties, where the returns had
given contestant a majority of 821 votes. By admissions and waivers the
returns from 5 of these counties were admitted before the committee, so
there were left in issue the counties of Lafayette, Manatee, and
Brevard, where the returns gave contestant 335 votes and sitting Member
3 votes.
The time for taking testimony was twice extended--once on February 9,
1872,\2\ so as ``to take testimony within the period of sixty days
after the passage of this act,'' and again on May 29, 1872,\3\ in
accordance with the resolution recited later.
(1) The first question which the committee considered arose from the
returns of Lafayette County, which gave 152 votes for contestant and
none for sitting Member. The county canvassers had rejected three of
the precincts of the county and counted but two. Of the returns from
this county the report says:
This return is rendered worthless by the testimony of William D.
Sears, sheriff of LaFayette County, and a member of the board of county
canvassers.
This witness swears that at New Troy precinct, which is one of the
two precincts counted, there were at least 42 votes cast and counted
out for the sitting Member; a fact he knows from having been present at
the counting of the vote, and yet by the return every vote is given to
contestant.
The same facts, in substance, are shown by the evidence of Redden B.
Hill, another member of the board of canvassers. (See pp. 11 to 14,
inclusive, of evidence.)
Other objections are raised to this return, but they need not be
considered, for this testimony successfully impeaches it, and shows
that it is tainted with fraud, and must therefore be rejected.
We are left, then, to the inquiry, What votes have been proven by
evidence outside of this return?
Upon looking into the evidence upon this point, we find that there is
no proof whatever as to the actual state of the vote at the precincts
of New Troy and Summerville, which are the two which purport to have
been included in said return, except the proof, already mentioned, that
the sitting Member received at New Troy at least 42 votes. The vote of
these two precincts, in which contestant claims 152 votes, must
therefore be rejected, because the return is shown to be void for
fraud, and no secondary evidence is offered to take its place.
It is suggested by counsel that we might allow the 152 votes which,
according to this return, were cast for contestant, and also allow the
sitting Member the 42 votes which are shown to have been cast for him
and not returned. But the committee hold that, it having been shown
that the return is fraudulent and false in a matter so material as the
suppression altogether of the whole of the sitting Member's vote, it
can not be received for any purpose.
-----------------------------------------------------------------------
\1\ Third session Forty-second Congress, House Report No. 41; Smith,
P. 101.
\2\ Second session Forty-second Congress . Journal, p. 312; Globe, p.
929.
\3\ Journal, p. 1008; Globe, p. 3984.
Sec. 890
(2) As to Manatee County:
The returns from this county were thrown out for the following
reasons:
First. Because the returns made by the county board, which by the
statute are required to be duplicates, are not such. One return states
that the board met and canvassed the votes ``on the 29th day of
November, 1870,'' while the other states that the board met and
canvassed the vote ``on the 1st day of December, 1870,'' and the former
is dated November 29 and the latter December 1.
Second. Because the vote of said county was not canvassed and the
returns made out and forwarded to the State officers authorized to
receive them within twenty days from the day of election, as required
by statute.
Third. Because said returns were not forwarded by mail, addressed to
the secretary of state and governor, as expressly required by statute,
but were in fact sent in an envelope addressed to contestant, by a
private messenger, and delivered to, and opened by, one W. H. Pearce,
of Polk County, who afterwards placed it in the hands of the board.
These objections were considered by your committee at the last
session of Congress, and it was considered by the committee very
desirable to obtain more reliable evidence as to the actual vote cast
in this county.
It was thought that it would be unsafe to establish a precedent of
accepting as evidence a return which, instead of being transmitted from
the county to the State board by mail, as the law requires, was sent by
the hand of a private individual, and by him delivered to one of the
candidates, to be by him delivered to the State board.
Accordingly, your committee recommended and the House, on the 29th of
May last, adopted the following resolution:
``Resolved, That the contested-election case of Niblack v. Walls be
continued until the next session of this Congress, and that in the
meantime the parties have leave to take further evidence as to what was
the true vote cast in the counties of Brevard and Manatee, and Yellow
Bluff precinct, in Duval County, and also as to whether the election in
said counties and in said precinct was conducted fairly and according
to law.''
Under this resolution the sitting Member has taken no evidence, but
the contestant has called and examined E. E. Mizell, county judge, and
John F. Bartholf, clerk of Manatee County, and who were two of the
three canvassing officers for that county.
These witnesses each identify a paper shown them as a true copy of
the return as made out by them as canvassing officers.
The copy is identical with the return which was rejected by the State
board, the difference of one day between the dates of the two papers
filed as duplicates being considered immaterial.
This evidence seems to be sufficient to show that the returns from
this county were not tampered with, and that, notwithstanding the
irregular and illegal mode adopted for their transmission from the
county to the State board, they are, in fact, correct and reliable.
This return is also certified (as well as sworn to) by the clerk of
the county, who, by the statute of that State, is the legal custodian
of the original record of the canvass.
(3) As to the signing of the returns of Brevard County:
The statute of Florida requires that the returns shall be signed by
the judge of the county court, the clerk of the circuit court, and one
justice of the peace.
The return from this county relied upon as proof of the vote of the
county is signed by but one of these three officers, the county judge.
The committee are of opinion that where the law requires the
certificate to be made by three officers, a majority at least must sign
to make the certificate evidence.
This is not a merely technical rule; it is substantial, because the
refusal or failure of a majority of the board to sign the return raises
a presumption that it is not correct.
It is fair to infer that if it had been free from objection a
majority of the board at least would have signed it.
It is enough, however, to say that the law requires the certificate
of the three officers, and all the authorities agree that at least two
must certify or the certificate is inadmissible.
Therefore, as contestant did not prove the vote, the committee
declined to, count the votes alleged to have been cast.
Sec. 891
891. The case of Niblack v. Walls, continued.
The rejection of an entire poll for intimidation on behalf of
contestant may add to the injury if the return gave contestee a
majority.
Evidence showing that a voter's due effort to vote was thwarted by
intimidation on the vote should be counted as if cast.
Evidence tending to show intimidation may be disproved by the ratio
of votes cast to population.
To justify the rejection of a poll for intimidation, the evidence
should be specific, not general.
Disturbance at the polls does not in the absence of specific evidence
as to the effect of intimidation justify rejection of the poll.
Instance of the seating of a contestant belonging to the party in
minority in the House.
(4) A question as to intimidation arose as to several precincts. The
evidence convinced the committee that there was an organized effort of
contestant's friends at Quincy precinct, and that it was partially
successful, to intimidate voters who proposed to vote for sitting
Member. This intimidation was exercised at the polls on the day of
election. The contestant insisted that the only remedy was the
rejection of the poll. The report says, however:
This remedy in the present case would only add to the injury,
inasmuch as the sitting Member received a majority, and this shows the
necessity of some other remedy.
This is to be found in the rule, which is well settled, that where a
legal voter offers to vote for a particular candidate, and uses due
diligence in endeavoring to do so, and is prevented by fraud, violence,
or intimidation from depositing his ballot, his vote should be counted.
The principle is that the offer to vote is equivalent to voting.
In two other precincts there was some evidence tending to show
intimidation, but as from the ratio of votes cast to population, no
unusual decrease of vote appeared, the allegations were disproved. At
Lake City there was some shooting the night before election, but no
actual violence at the polls. The committee say:
It is thought by some of the witnesses that a number of voters,
principally colored men, were afraid to go to the polls on election day
because of these disturbances of the previous night; but as to the
number of persons thus deterred, and as to what, if any, efforts they
made to exercise their right, the evidence is wholly unsatisfactory.
One witness puts the number at ``several,'' while another estimates it
at 40. The number who were intimidated (with or without sufficient
reason) was evidently not so great as to justify the rejection of the
entire poll. By the use of proper diligence the sitting Member could
have called the voters themselves, or some of them, and could have thus
shown their number and the facts as to their intimidation and offer and
efforts to vote.
In Marianna there were disturbances, but the committee conclude:
There were disturbances at the polls in Marianna, where three polls
were opened, and where the whole county voted. One or two personal
collisions occurred, some harsh language was used, and some persons
were doubtless frightened away; but as to the number who left, and as
to whether they left without voting, and as to the candidate for whom
those who left without voting intended to vote, the evidence is wholly
unsatisfactory. Several witnesses are called on the part of the sitting
Member, who testify that, in their opinion, from 100 to 200 colored
persons were deterred from voting; but this is a mere conjecture, and
the census, already referred to, shows that it is wholly incorrect. By
the census report of 1870, it appears that at the time the census was
taken (which was but a short time prior to the election) there were in
the county of Jackson 1,879 male citizens over the age of 21 years, and
the returns before us show that 1,752 votes were actually cast, leaving
only 127 voters who failed, from all causes,
Sec. 892
to exercise their right. This is an exceedingly small percentage, being
less than 10 per cent, and shows conclusively that the allegation that
some 400 voters were intimidated, and thereby deprived of the privilege
of voting, is not true. On the contrary, we must conclude, in view of
the unusually large vote polled, that nothing can be deducted from the
vote returned for the contestant on the ground of intimidation in this
county.
In conclusion, in accordance with the principles set forth, the
committee found a majority of 137 for Mr. Niblack, the contestant, and
recommended the usual resolutions declaring sitting Member not elected,
and seating contestant.
The report was considered in the House on January 29, 1873,\1\ and
the resolutions of the committee were agreed to without division.
Mr. Niblack then appeared and took the oath.\2\
892. The Arkansas election case of Gause v. Hodges, in the Forty-
third Congress.
A return shown by testimony of the returning officer to have been
made up on data rendered insufficient by theft was rejected.
The fact that a return has been accepted and acted on by State
authorities does not cure its inherent defects.
Fraud will not be presumed simply from an unusual ratio between votes
and population.
At the organization of the House on December 1, 1873, the Clerk did
not enroll any Representative from the First district of Arkansas.\3\
On February 4, 1874,\4\ the House, without division, seated Mr. Asa
Hodges as having the prima facie title, leaving open the right to
contest.
On February 24, 1875,\5\ Mr. Austin F. Pike, of New Hampshire,
submitted the report of the majority of the committee on the merits of
the contest of Gause v. Hodges. Mr. Edward Crossland, of Kentucky,
submitted minority views. The majority and minority considered, besides
questions of fact, certain questions of law.
(1) The majority reject the returns of Poinsett County, saying:
The clerk who made the certificate rebuts by his testimony (Record,
pp. 342, 343) any presumption of the validity of the vote which his
certificate might raise. The returns, poll books, tally sheets, and
votes were all stolen from his office. He never made an abstract of the
votes as required by the law of the State (acts of Arkansas, 1868, sec.
39, p. 322), and of course never made a copy of it and sent the same to
the secretary of state, as required. (Ibid., p. 323, sec. 42.) He only
sent a certificate founded on the affidavits of the judges of part of
the voting precincts in the county. This away of making a return is
substantially defective, and such a certificate can furnish no evidence
of the correctness of its contents. No precinct returns and no other
evidence was before the committee.
The minority say:
There are five townships in this county. The election was fairly held
in all of them. The returns were made to the clerk and were stolen from
his office on the Friday night after the election. The judges made
certificates under oath in each precinct. These were presented to the
clerk, and he made the following abstract and certificate.
-----------------------------------------------------------------------
\1\ Journal, p. 269; Globe, pp. 949-952.
\2\ It should be noticed that contestant belonged to the party in the
minority in the House and the contestee to the majority party.
\3\ See case of Gunter v. Wilshire. (Section 37 of Volume I.)
\4\ First session Forty-third Congress, Journal, p. 1192; Record, p.
375.
\5\ Second session Forty-third Congress, House Report No. 264; Smith,
p. 291; Rowell's Digest, p. 299.
Sec. 893
Having quoted the abstract and certificate, the minority continue:
This was forwarded to the secretary of state, and he accepted it,
acted on it, and counted the votes for Mr. Gause. The committee changed
their opinion of the conclusive effect of a certificate that has been
accepted and acted on by the State authorities'' and refuse to count
the vote of this county. The testimony on which the certificate was
based was the best attainable after the returns were stolen from the
clerk's office, was legally secondary evidence, and the committee ought
to have followed the ``State authorities'' and given Mr. Gause the vote
of this county.
(2) As to Crittenden County the following ruling is made in the
majority report:
It is urged that the percentage of the voting population in this
county is too large as compared with other counties, and therefore ask
that fraud may be presumed. This can not furnish any reliable test, as
it is well known that the proportion of the voting population in
different counties and localities, as well as in States, is widely
different.
The minority say:
In conclusion, we invite attention to the evidence in regard to the
election in the county of Crittenden. By the census of 1870 the
population of this county was 3,831 souls; in 1872 there were given
2,183 votes, of which Mr. Hodges claimed to have received 1,889. This
is certainly a very uncommon ratio of voters to the population,
strongly indicating fraud.
893. The case of Gause v. Hodges, continued.
Objection to the legality of the constitution of an election district
not raised in the notice of contest was not considered.
An election district being established illegally, but all parties
participating in the election in good faith, is considered as having a
de facto existence.
The right to vote not depending on registration, and returns showing
prima facie that an election, was duly held without registration, the
Elections Committee counted the votes.
(3) Contestant objected that the court which, under the law, divided
the county of Lincoln into election districts had no authority to act,
as a quorum was not present. There seems to be no doubt that less than
the legal quorum acted; but the report shows that contestant did not
raise the objection in his notice of contest, and so the right to
object was not open. Furthermore, the majority say:
Even if it were, it ought not to prevail. This order of the court
establishing these precincts seems to have been acted on, on all hands,
as a valid order. The clerk of the court acted on it and made the
abstract required by law. The precincts were duly registered, officers
of the election duly appointed, and an election duly held, and the
returns thereof duly made. All the votes polled in these precincts for
State, county, district, and municipal officers have been counted. We
thin the vote for Congressmen ought not to be an exception, especially
when upon the pleadings no such issue was raised. These precincts must
be regarded as established under color of law and as having a de facto
existence.
(4) In Monroe County a question arose as to counting votes from
precincts where registration had not been completed under an order of
the governor setting aside one registration and ordering a new one. The
report says:
The vote of only three precincts--Troy, Pecan, and Monroe--is
regarded as valid by the secretary of state. A registration was
commenced; it was set aside on the ground of the alleged disturbed and
violent condition of the people, and a new one ordered. Only the three
precincts above named were registered under this new order. The vote of
these is the only one counted by General Hadley.
The clerk of this county (p. 286 of the Record) makes an abstract of
returns from the townships of Scott, Chickasaba, and Canadian, giving
Gause 239 and Hodges 2.
Sec. 894
The question presented by the pleadings and evidence is whether only
these precincts are entitled to have their votes counted.
By the registration law of Arkansas (Laws of 1868, see. 23, p. 59) it
is provided that--
``In any county of this State where, for any reason, a proper
registration has not been made previous to any general election, the
governor, when notified of the fact, shall cause a new registration to
be made.''
And by section 39 of chapter 73, page 222, Laws of 1868, it is
provided that--
``On the fifth day after the election, * * * or sooner if all the
returns have been received, the clerk of the county court shall proceed
to open and compare the several election returns which have been made
to his office, shall make abstracts of the votes given for the several
candidates for each office on separate sheets of paper. Such abstracts,
being signed by the clerk, shall be deposited in the office of the
clerk, there to remain.''
By section 41 of the same act the clerk is made guilty of a
misdemeanor if he refuse to count the vote on any poll book returned to
him.
Poll books and returns were returned for the rejected townships as
well as for those counted. (See pp. 279 and 286 of Record.) It appears
that there was not time to complete the new registration in all the
county.
The authority of the election officers appointed by the first board
of registration is not set aside by the mere order for a new
registration, and their power ought to continue at least until
successors are appointed by the new board. The right of a man to vote
does not depend upon his registration. It does not follow, then, that
there might not have been a legal election in the precincts not
registered anew. The clerk's certificate is prima facie evidence that
there were such elections, and the committee decide to count all the
votes of this county.
894. The case of Gause v. Hodges, continued.
The return of a canvassing officer is given prima facie effect
although he may have omitted from it the votes of certain precincts.
Returns made by volunteer officers at ``outside polls'' of votes cast
by persons of unknown qualifications were rejected.
(5) As to the vote of Van Buren County, the minority views present
the following statement of fact:
The device by which Gause was deprived of the vote of this county is
novel and interesting. There are 19 precincts in this county. The
actual vote cast, returned, and counted by the clerk was as follows:
Hodges, 208; Gause, 527; whole vote, 735; majority for Gause, 319. The
returns from all the precincts, except Mountain, which contained only 3
votes, were duly returned to the clerk, counted by him, and abstract
made as required by law; but before he mailed it to the secretary of
state he suppressed it and made another, in ``obedience to instructions
received from the attorney-general.'' Under these instructions he
suppressed the vote of 11 precincts, counted only 7, giving Mr. Hodges
131 and Mr. Gause 141, making in the whole county 272 votes.
The ``instructions'' purported to give a rule as to votes admissible
under the law. The minority say:
Admit that the instructions contained a correct interpretation of the
law, the clerk does not swear that he made the alteration because he
discovered irregularities in the manner the election was conducted, but
made it solely because he was instructed to do it. By what data, under
what evidence, he assumed that the voters of certain precincts ought to
be disfranchised he does not tell us. But we insist that the clerk had
no power to adjudicate upon the subject of irregularities in the
precincts. All that he was authorized to do was to receive and count
the votes as they were returned from the precincts and make the
``abstract;'' his powers began and ended with the performance of these
duties. He had no authority to examine, hear, or act on any other
evidence than that contained in the returns from the precincts. The
majority of the committee carefully abstain from any expression of
approbation in regard to what this clerk did, and insist only that he
having made this second abstract and forwarded it to the governor, and
the ``governor and secretary of state having acted on it,'' it becomes
the only legal evidence of the vote of the county.
Sec. 894
The majority of the committee contended that the paper actually
transmitted by the clerk, and not the other paper relied on by the
contestant, was the prima facie evidence of the vote of the county. The
majority say:
The committee think that the only official proof furnished by this
clerk is the paper acted on by the secretary of state and the governor.
It was upon the contestant to show what the vote was in the other
precinct in this county, he claiming the benefit of it. The paper he
relies on does not show it for the reasons above stated.
Here, then, are certain precincts which were not returned, and which
might be set up by competent proof if they were legal polls. Neither
copies of the election returns or the depositions of the election
officers are produced. Whatever papers were sent the clerk were
rejected by him as returns, and there is no evidence what they were.
A similar question arose as to Conway County, the minority making
violent objection to the decision of the majority.
(6) In Independence, Jefferson, and Woodruff counties the question of
``outside polls 2'' arose. The majority say:
In each of these counties, at one or more voting places, persons
considering that they had a right to vote, which right had been denied
them at the regular polls, and perhaps others who simply desired to
vote, organized what has been called ``outside polls.'' The persons
assuming to act as officers at these outside polls made returns to the
clerk of the county, and the contestant claims that the votes thus
returned shall be counted.
The committee is unable to find any authority for such a proceeding
in either State or national law.
The national law provides a way in the election of Congressmen and
Presidential electors by which persons having the right to vote can
make that right available to them when it is denied them at the regular
poll. These persons did not think proper to pursue this course. They
resorted to this new scheme outside the law, subversive of the purity
of elections and revolutionary in the extreme.
It can not be urged that the persons making these returns are
election officers. Their certificate, then, can have no legal force and
can furnish no evidence that what they certify to is correct.
There is no evidence that a single one of these participants at the
outside voting had any legal right to vote, and the whole claim for the
allowing of the vote rests simply upon the certificate of these self-
constituted and illegal officials.
The minority questioned the facts assumed by the majority, and
contended that the outside polls were the legal polls.
(7) In Greene County the majority held to the following decision:
The registration was set aside in this county and no new one made.
There were elections held in many or all of the precincts of the county
under the registration rejected by the governor and by the officers
appointed by that board of registration. The clerk of the county
refused to receive the returns brought to him, and he never made any
official abstract of them. He says they were ``stolen.''
The governor has authority to set aside a registration, but the
committee does not think that a fair construction of this law can give
the governor the authority to disfranchise a county by setting aside
the registration.
By section 23 the governor was authorized to cause a new registration
to be made only in the same manner in which the old registration was
made. He was not authorized to set aside the old registration, except
by making a new one. And the new one must be ``governed in all respects
as other regular registrations under this act'' (sec. 23)--that is to
say, the new precinct registration must be made between the 60th and
10th days preceding the election, and the new review must be made
between the 16th and 10th days preceding the election.
In conclusion, the majority found a majority of 1,143 votes for Mr.
Hodges, the sitting Member, and presented resolutions confirming his
title to the seat.
The minority found a majority of 799 for Mr. Gause.
In the few remaining days of the session the report was not acted on.
Sec. 895
895. The Georgia election case of Sloan v. Rawls, in the Forty-third
Congress.
A doubt as to whether or not an election precinct existed or had been
abolished did not vitiate a vote duly cast and returned.
An election being properly conducted, the House counted a return made
by a portion of the election officers, the others having declined to
act.
On February 27, 1874,\1\ Mr. Ira B. Hyde, of Missouri, submitted the
report of the majority of the committee in the Georgia case of Sloan v.
Rawls. The officially tabulated vote of the district had given Mr.
Sloan 6,979 votes and Mr. Rawls 8,319. But an abstract of votes
actually cast, as made up by the secretary of state, showed a total of
8,350 votes for Mr. Sloan and 8,338 votes for Mr. Rawls.
The majority of the committee, besides correcting some errors and
deciding certain questions of fact, joins issue on certain questions of
law.
(1) The law of Georgia provided--
Section 1312. Such election shall be held at the court-houses of the
respective counties, and if no court-house, at some place within the
limits of the county site, and at the several election precincts
thereof, if any, established or to be established. Said precincts must
not exceed one in each militia district. Such precincts are
established, changed, or abolished by the justices of the inferior
court, descriptions of which must be entered on their minutes at the
time.
At three precincts in Chatham County, where Sloan received 1,239
votes and Rawls 2, the returns were rejected. The majority of the
committee say that these precincts should be counted.
There is no evidence tending to show that the election at these
precincts was not fairly and legally conducted and the returns made and
forwarded to the county managers within the time and in the manner
required by the laws of Georgia; but, on the contrary, the testimony of
King S. Thomas (p. 55), Avery Smith (p. 57), and James Porter (p. 58),
together with the exhibits of the names of the voters referred to in
their testimony, and which are printed on pages 148 to 174, inclusive,
established the fact, in the opinion of the committee, that the
election at these precincts was fairly and legally conducted; but it is
claimed by the sitting Member that these voting precincts had no legal
existence, and he gives that in his brief as the reason for the
rejection of the returns from them. He says:
``The consolidators of the Chatham election refused to receive and
count these votes, because they considered that there were no such
precincts existing by law in Chatham County, etc.''
The question of law at issue in regard to the legality of these
voting precincts is simple, and may be briefly stated.
It is admitted on both sides that the ordinary of the county was
authorized by the laws of Georgia to establish or abolish voting
precincts by an order entered of record in his court.
And it is also admitted that these precincts were established on the
22d day of October, 1868, by the ordinary of Chatham County sitting as
a court of ordinary by an order duly entered of record.
A certified copy of said order is printed on pages 174 and 175 Mis.
Doc. No. 20.
Said order is as follows:
Court of ordinary, Chatham County, sitting for county purposes:
``October 22, 1868.
``It being necessary that election precincts should be established in
the county in order to facilitate the election to be held on the 3d day
of November next, it is therefore ordered that election precincts be,
and they are hereby, established at Cherokee Hill, in the eighth
militia district, embracing the whole
-----------------------------------------------------------------------
\1\ First session Forty-third Congress, House Report No. 216; Smith,
p. 144.
Sec. 896
of said district, at Chapman's house, in the seventh militia district,
embracing the whole of said district, and on the Isle of Hope,
embracing the whole of the fifth and sixth militia districts.
``Henry S. Wetmore,
``Ordinary C. C.''
In the judgment of the committee, no order abolishing these precincts
had been made until about a month after the election in November, 1872.
But it is claimed by the sitting Member that the order of October 22,
1868, by which these precincts were established, applied only to the
election for the year 1868, and that it does, by its terms, limit their
establishment to that election.
And that appears to be the reason for the rejection of the returns
from these precincts by the managers who consolidated the returns of
Chatham County.
The committee is clearly of the opinion that such was not the effect
of said order; that the words ``it being necessary that election
precincts should be established in the county in order to facilitate
the election to be held on the 3d day of November next,'' only
expressed a reason for action at that time, but did not in any manner
limit the terms of the order, and much less did they have the effect of
abolishing those precincts on the 4th day of November following.
It is proper to state in this connection that the sitting Member
produces the testimony of the ordinary (see p. 284, Mis. Doe. No. 20),
in which he states:
``It was my intention when I established these precincts to have them
in force only for the election referred to.''
But certainly such evidence can not be admitted to contradict or
change the records of courts.
Judgments and orders of courts of record would be of little value as
evidence, or for any purpose, if they could be contradicted, changed,
and set aside by the testimony of the judge taken five years after the
record was made.
The action of this same ordinary in abolishing these precincts in
December, 1872, about a month after the election, shows how little
confidence he has in his own opinion thus solemnly expressed.
It also appears by the evidence that United States supervisors of the
election at all of these three precincts were appointed on November 1,
1872, by the judge of the district court of the United States for the
southern district of Georgia. (See p. 179, Mis. Doc. No. 20.)
And that all of said supervisors acted, except the Democratic
supervisor appointed for the Isle of Hope precinct
The argument of the minority that an act of the. legislature of
Georgia had abolished these precincts is answered by the statement that
this law was applicable only to one election, and did not affect the
election in question.
The minority views, submitted by Mr. R. Milton Speer, of
Pennsylvania, argued that the precincts had been established only for
the election of 1868, and asserted that at subsequent elections these
precincts had not been used.
(2) At Lawtonville the managers were all of sitting Member's party,
and refused to make out and forward the return of the precinct, or even
to conclude the count. But one of the managers and the clerk afterwards
made out the vote and forwarded it. Testimony indicated that the
election was properly conducted, and that the returned result was true.
The majority held that this return, which had not been credited in the
county tabulation and which showed a majority to contestant, should be
counted.
The minority contended that the vote, which had not been formally
returned or canvassed, should not be counted, and contended that the
testimony relied on by the majority was not worthy of confidence.
896. The case of Sloan v. Rawls, continued.
There being a discrepancy between the return and the vote proven to
have been cast, the House corrected the return.
Sec. 896
Kind of proof accepted to prove votes additional to those returned
for contestant at a precinct where his supporters were unable to read
or write.
There being no evidence of fraud and some evidence of the correctness
of the vote, the House counted a return whereon the election officers
did not subscribe to the oath.
A defective precinct return, irregularly transmitted, was counted,
there being no evidence of fraud and some evidence of its correctness.
(3) Contestant alleged fraud in the return from Liberty Hill, as
there was a discrepancy between the vote returned for him and the vote
proven to have been cast. The majority report says:
The committee is of the opinion that this does not constitute such
proof of fraud as to require them to reject the return, but that they
might properly add to it such votes as the contestant proves were cast
for him above the number returned.
In the case of Washburn v. Voorhees, reported February 19, 1866, this
identical question arose in relation to Jefferson Township, and the
report in that case, which was adopted by the House, did not reject,
but corrected, the return by giving the contestant the benefit of the
votes proved in excess of those counted in the return.
The evidence relied upon to prove the number of votes actually cast
for Mr. Sloan at this precinct is as follows:
First. A list of Republican who voted at this precinct on the day in
question. This list contains 67 names, and is printed on page 129.
Second. The deposition of Edmund Harper (p. 100), who was questioned,
and answered as follows:
``Question. Have you any knowledge of the number of Republican votes
actually put in the box that day?--Answer. I saw and counted 74 that
were given out to men who took them and went to the box to deposit
them-``
Third. The depositions of 60 Republican voters, who swear that they
voted at this precinct at the election in question, receiving most, if
not all, of the ballots from the vice-president or secretary of the
Grant and Wilson Club, and that they all voted the Republican ticket,
and all but 5 swear that they intended to vote or did vote for Mr.
Sloan.
As these voters were unable to read or write, the evidence is as
conclusive as could be obtained under the circumstances, and the
committee are of the opinion that at least a part of these votes
should, if it were necessary to decide the contest, be counted for Mr.
Sloan. But, in view of the length of the testimony, the few votes in
issue in this precinct, and the further fact that in the judgment of
the committee they could in no view of the case change the result, the
committee have thought it unnecessary to make a count of them
The minority contend that the testimony relied on by contestant to
prove the vote cast was unreliable because of the ignorance of the
witnesses.
(4) The canvassers rejected the returns of precinct 259 of Scriven
County because the managers did not subscribe to the oath. It appears
that the copy of the precinct return was defective and was transmitted
to the secretary of state in an irregular way. While admitting that the
strict rules of law would require its rejection, the committee say that
as there was no evidence of fraud and some evidence of the correctness
of the vote, they would count it. This precinct gave 31 for Rawls, the
sitting Member, and 4 for contestant.
(5) The majority and minority disagreed as to the vote of Jefferson
precinct, the minority holding that the precinct had been abolished,
and the majority contending that under proper construction of the law
it could not be held to have been abolished. Considering it a legal
polling place, the majority counted the vote.
Sec. 897
897. The case of Sloan v. Rawls, continued.
Precinct returns being impeached only by the fact of suspicious
custody, they were counted in spite of gross irregularities in the
consolidated returns therefrom
The use of several ballot boxes, with alleged object of defeating the
purpose of the Federal inspection law, did not cause rejection of the
returns.
(6) The majority decided to accept the result of the precinct returns
of Bullock County although the officials who consolidated the return at
the county seat acted irregularly. The majority report says:
In the case of Howard v. Cooper (Bartlett, 275) the committee laid
down the following rule in relation to cases of fraud:
``When the result in any precinct has been shown to be so tainted
with fraud that the truth can not be deducible therefrom, then it
should never be permitted to form a part of the canvass. The
precedents, as well as the evident requirements of truth, not only
sanction, but call for the rejection of the entire poll, when stamped
with the characteristics here shown.''
This same doctrine has been repeatedly laid down by committees, and
has received the sanction of the House. (See Washburn v. Voorhees,
Contested-Election Cases, 1865 to 1871, and cases there cited.)
The laws of Georgia, heretofore cited, require that--
``The superintendents, to consolidate the vote of the county, must
consist of all those who officiated at the county seat, or a majority
of them, and at least one from each precinct.''
The consolidated return for Bullock County (see p. 257) has the names
of six managers signed to the return and certificate, which states
that--
``We do certify that we have this day met and consolidated the
returns of the other voting places with the court-house, and that the
following is the result, etc.''
But the testimony of these men, whose names are signed to the
consolidated return (see pp. 72-79), discloses the fact that not one of
them ever signed or ever saw the consolidated return, or had anything
whatever to do with the consolidation of the returns from that county.
Not one of them is able to tell anything about the making up of the
consolidated returns; and two of them, De Loach and Proctor, decline to
answer questions on the ground that the answers might tend to criminate
them. This consolidated return was made up by one C. A. Sorrier (Mis.
Doe. 20, pt. 2, p. 2), who was not a manager, and had no legal
connection whatever with the election, and had no right to handle any
of the papers.
Yet, strange as it may seem, all of the precinct returns were handed
over to him as soon as they reached the court-house, and continued in
his exclusive possession for many days.
He swears that he made up the consolidated return without the
assistance or supervision of anybody, and signed the names of the
managers to it. That consolidated return is dated on the 5th day of
November, and yet it was not mailed to the executive department until
the 19th of November, as appears by the testimony of the secretary of
state, who examined the postmark (p. 139).
And instead of being sent by mail from Bullock County, it was, on the
11th or 12th of November (see p. 51), in the hands of one Sims, who
delivered it to some party in Savannah.
It appears to have been held back until the returns from all the
other counties had been received.
Another most significant fact in this connection is the failure to
turn over the ballots, returns, tally sheets, and lists of voters to
the clerk of the superior court, as required by the laws of Georgia
before referred to.
In spite of the unlawful making up of the consolidated returns and
the suspicious custody of the precinct returns, the majority concluded
to count them. They gave Rawls 493 votes and Sloan 0.
Sec. 897
The minority say on this point:
The contestant denied the irregularity of the county canvass or
consolidation for Bullock County; but inasmuch as the sitting Member
does not rely upon this county canvass or consolidation, but upon the
precinct returns themselves, and these precinct returns, establishing
the vote of the county beyond question, are presented on pages 32 to 39
of the small pamphlet, duly authenticated by the secretary of state,
and wholly unimpeached, the undersigned do not see that it is material
to inquire into the regularity of the canvass or consolidation. At the
same time they find no such irregularity as would, under the statutes
of Georgia, invalidate this canvass, even if it were the only evidence
of the vote before the House. There is no testimony tending to show
that the precinct officers did not sign the precinct returns. No
attempt was made to show this, although an attempt was made to show
that they did not make a consolidation at the county site. The
contestant complained that the ordinary, Mr. Sorrier, after
considerable delay, sent these returns to the secretary of state by way
of Savannah. But however this may be, it would not affect the case; for
his testimony, on pages 2, 3, 4, and 5 of the small pamphlet, shows how
the delay occurred and why the consolidation was sent by way of
Savannah; so that even if there was proof that the precinct returns
accompanied the consolidation to the office of the secretary of state
that would not impeach them under the evidence here.
(7) The law of Georgia, as already quoted, provided that there should
not be exceeding one voting precinct in each militia district. The
majority say in relation to the city of Savannah:
And it is claimed by the contestant that, in violation of this
provision, four voting places were established in different parts of
the court-house in Savannah.
The evidence is positive upon this point and is undisputed; four
ballot boxes, at four different voting places in the court-house, were
used, and were presided over by four distinct sets of managers and
clerks. They were so disconnected that no man could superintend the
voting at more than one box at the same time. Two of these voting
places were from the streets on opposite sides of the court-house, and
two were from the main passageway through its center. (See plan, p.
279.)
The act of Congress approved February 28, 1871, provides for the
appointment in certain cases of two United States supervisors for each
election precinct, to superintend the election.
Under that act and the act amendatory thereto, two supervisors were
appointed to superintend the election at the court-house precinct in
the city of Savannah.
Section 5 of that act requires the supervisors to ``attend at all
times and places for holding elections'' and ``for counting the
votes,'' to challenge any vote offered by any person whose legal
qualifications the supervisors, or either of them, shall doubt; to be
and remain where the ballot boxes are kept at all times after the polls
are open until each and every vote cast at said time and place shall be
counted,'' etc.
Section 6 of the same act requires the supervisors to--
``take and occupy and remain in such position or positions from time to
time, whether before or behind the ballot boxes, as will in their
judgment best enable them or him to see each person offering himself
for registration, or offering to vote, and as will best conduce to
their or his scrutinizing the manner in which the registration or
voting is being conducted; and at the closing of the polls for the
reception of votes, they are, and each of them is, hereby required to
place themselves or himself in such position in relation to the ballot
boxes for the purpose of engaging in the work of canvassing the ballots
in said boxes contained as will enable them or him fully to perform the
duties,'' etc.
It is therefore evident that if four ballot boxes, separated as these
were, can be used at one precinct, it will be impossible for the United
States supervisors to perform the duties required of them by the act of
Congress above referred to, and that the act can anywhere, by the
managers of elections, be annulled and disregarded.
If four ballot boxes in four separate places can be legally used in
one voting precinct, so can 40 or 100 in as many different places in
the precinct, and any attempt at supervision would be impossible.
And it is also evident that the use of four ballot boxes, in four
separate places, and with four complete sets of election officers, in
what could legally be only one voting precinct, was in violation of the
spirit and intention, as well as the letter, of the law of Georgia.
Sec. 897
The committee can not refrain from noticing the attempt which was
made by the authorities of Chatham County to set aside all the other
voting precincts, and thereby compel the voters of the entire county
either to come to the court-house or to lose the opportunity of voting.
Such a law practically disfranchises large numbers of voters, and
ought to be the subject of additional legislation, so far as the
election of Members of Congress is concerned.
As the rejection of the vote of the city of Savannah would not change
the result in this case, the committee have not deemed it necessary to
pass upon its legality, and they therefore count it as it was
officially returned.
The minority say that the number of ballot boxes to be used was not
prescribed by law, and that four ballot boxes had been used at this
precinct for many years. The minority continue:
The use of four ballot boxes was an absolute necessity, for the
statute of Georgia provides only one voting place in the entire city of
Savannah; nor had any additional voting place been established by the
ordinary of the county; and unless several boxes had been used at that
place between 5,000 and 6,000 ballots must have been deposited by
voters of the city in one box before 3 o'clock p.m., which, of course,
would have been an impossibility. The contestant's proposition,
therefore, disfranchises a large proportion of the voters of his
district, whichever horn of the dilemma they may see fit to take. If
they do not all vote in one box, they are to be disfranchised, but if
they attempt to vote in one box, large numbers of them are virtually
disfranchised, because they can not all vote in a single ballot box.
There is an additional reason why the voters of Savannah should not be
disfranchised on account of these ballot boxes. It is found in section
1362 of the Code of Georgia.
``1362. Election not void by reason of formal defects. No election
shall be defeated for noncompliance with the requirements of the law if
held at the proper time and place by persons qualified to hold them, if
it is not shown that by that noncompliance the result is different from
what it would have been had there been a proper compliance.''
No attempt has been made to show anything of this kind in the case of
the Savannah vote.
Moreover, the law of Georgia did not limit the number of managers.
The minority further say:
Obviously there was the same imperative necessity for additional
managers as for additional boxes. All the electors of Savannah were
obliged to vote at the court-house, and unless more than one ballot box
had been used, the election could not have been held at all. These
boxes could not have been properly superintended by three managers. The
boxes were arranged in a straight line in one hall and at intervals of
from 10 to 16 feet, with no partition or wall or screen between them.
It seems to have been the best and fairest possible arrangement to
enable the citizens to vote and the managers and supervisors to perform
the duties prescribed by law.
It was suggested that the use of additional ballot boxes and the
employment of additional superintendents seemed to be a device to evade
the acts of Congress known as the ``enforcement acts,'' but the proof
shows that this practice obtained in Savannah many years before the
passage of the enforcement acts; and, besides, it is manifestly no part
of the object or effect of those acts to prescribe the number of
precinct officers or ballot boxes.
The report was debated in the House on March 20 and 24.\1\ On the
latter day the proposition of the minority that Mr. Rawls, the sitting
Member, was elected and entitled to his seat was defeated, yeas 77,
nays 131.
The question recurring on the resolutions of the majority, seating
contestant, there appeared, yeas 135, nays 74.
Thereupon Mr. Sloan appeared and took the oath.
-----------------------------------------------------------------------
\1\ Journal, pp. 626, 653-656; Record, pp. 2316, 2399-2412.
Sec. 898
898. The Virginia election case of Thomas v. Davis, in the Forty-
third Congress.
Instance of refusal of sitting Member's request for further time to
take testimony.
On March 5, 1874,\1\ the House agreed to a report from the Committee
on Elections, submitting resolutions unseating Alexander M. Davis, of
Virginia, and seating Christopher Y. Thomas .
The minority views, signed by Mr. L. Q. C. Lamar, of Mississippi, did
not dissent from the conclusion, but held that--
as the testimony of the contestant was taken after the time allowed by
law, and for this reason the contestee did not take the testimony which
he alleges he otherwise would have taken, we are of the opinion that
his request for further time should have been granted.
The resolutions were agreed to without division, and Mr. Thomas
appeared and took the oath.
899. The Kentucky election case of Burns v. Young, in the Forty-third
Congress.
Proof of mere irregularities in the administration of the election
law does not justify the rejection of the votes.
The prefix ``Hon.'' with a candidate's name is not such
distinguishing mark as will justify rejection of the votes.
Where canvassing officers acted arbitrarily, although not
fraudulently, the House corrected their result by the precinct returns.
On April 6, 1874,\2\ Mr. Edward Crossland, of Kentucky, from the
Committee on Elections, submitted the report of the committee in the
case of Burns v. Young, of Kentucky. The sitting Member had been
returned by an official majority of 188 votes. Contestant alleged
irregularities and fraud. The committee concluded as follows:
This was the first election held under the statute of Kentucky
requiring elections for Representatives in Congress to be by ballot, as
directed by the act of Congress approved February 28, 1871.
The directing provisions of the act of the Kentucky legislature are
very elaborate, and were not in every instance strictly complied with
by officers who conducted the election. Many irregularities occurred in
precincts in which contestee received majorities, and exactly similar
irregularities occurred in precincts which gave majorities for
contestant. And if proof of mere irregularities is sufficient to
vitiate the vote in these precincts and these only counted where there
was strict conformity to the Kentucky statute, the majority of the
contestee would be increased. In some instances the county boards, in
compliance with a provision of the statute which directs that the
ballots shall have on them the name of the person voted for and no
other distinguishing mark, threw out ballots cast for contestant
because the word ``Hon.'' was prefixed to his name on them. The
committee are of opinion that the ballots thrown out for this reason
ought to have been counted for contestant. In the county of Bracken
there were thrown out because of the prefix ``Hon.'' 36 ballots for
contestant. In the county of Mason, according to the certificates of
the precinct officers, Young received 1,663, Burns 1,347. The county
board certify for Burns 1,338 votes, or 9 votes less than the precinct
certificates aggregate. These 9 votes the committee believe ought to be
counted for Burns, for the reason that the county board refused to
allow any person except the members of the board to be present when the
ballots were counted. Witness
-----------------------------------------------------------------------
\1\ First session Forty-third Congress, Journal, p. 565; Record, p.
1996.
\2\ First session Forty-third Congress, House Report No. 385; Smith,
p. 179; Rowell's Digest, p. 290.
Sec. 900
Hutchens swears that he asked that permission to remain in the room
while the board were counting the votes and was refused by a member of
the board.
The said witness Hutchens testifies that the members of said board
are men of integrity and veracity; nevertheless the committee consider
the practice reprehensible and dangerous and believe that contestant
Burns ought to have corrected for him all the votes certified by the
precinct officers, viz, 1,367.
In conclusion the committee say:
In conclusion, the committee are of opinion that, concerning the
precincts wherein the irregularities were of so grave and important a
nature as to affect the validity of the returns, the secondary proof of
the actual votes cast shows a result not differing from that shown by
the returns. In other precincts the irregularities complained of on
both sides, though to be reprehended, are not of a nature to
necessarily affect the validity of the returns.
The committee recommend the adoption of the following resolution:
Resolved, That John D. Young, the sitting Member, was duly elected a
Representative in the Forty-third Congress from the Tenth Congressional
district of Kentucky and is entitled to his seat.
On April 11 \1\ the resolution was agreed to by the House without
debate or division.
900. The Arkansas election case of Bell v. Snyder, in the Forty-third
Congress.
An affidavit of a voter as to how he intended to vote, made at the
time the vote was rejected, was accepted as a valid declaration and
part of the res gestae.
Oral testimony as to the making of affidavits by rejected voters was
accepted as evidence of the fact and not as hearsay.
Testimony taken after the expiration of the legal time, and objected
to at the time, was not admitted.
On December 23, 1874,\2\ Mr. Horace H. Harrison, of Tennessee, from
the Committee on Elections, submitted the report of the committee in
the case of Bell v. Snyder, from Arkansas. The official returns had
shown a majority of 104 votes for sitting Member. Various
irregularities were alleged, and the committee came to conclusions as
to several questions relating to facts rather than principles. Only a
single important question of law was discussed and actually passed on.
The statutes of Arkansas provided for a registration to be made in
each county by a board. After quoting these statutes, the report says:
It will be perceived that by virtue of these provisions every person
who holds a certificate is entitled to vote until his name is stricken
from the original list and his certificate revoked.
The board, when in session as a court of review, ascertain and
determine who is entitled to vote, subject to appeal to the supreme
court, and when they close the registration and adjourn on the sixth
day they are to make fair copies of the list for the clerk of the
county and for the judges of election. The original list never goes to
the judges of election. The board of review exercises an arbitrary
power to strike names from the list on their own knowledge of
disqualifying acts and to revoke certificates already issued, but every
name which is on the list when they close the registration, so as to be
ready to make copies is, under the statute, a legal voter, and no power
on earth can deprive him of the legal right to vote. After that no
action of the board as a whole, or of any member of the board, or of
any other authorities or persons can invalidate that right.
Section 30 of the election law of July 23, 1868, is in these words:
``All persons who present certificates of registration, and whose
names appear on the registration
-----------------------------------------------------------------------
\1\ Journal, p. 761; Record, p. 3009.
\2\ Second session Forty-third Congress, House Report No. 11; Smith,
p. 247.
Sec. 900
books, shall be entitled to vote at any and all elections authorized by
the laws and constitution of this State, and no challenge shall debar
such person from voting at any election.''
The proof showed that certain voters duly registered and having
certificates of registration, whose names were on the original
registration lists and were not stricken therefrom by any competent
authority, but whose names did not appear on the precinct lists, were
refused the right to vote. The committee say:
Under the law every person holding a certificate was entitled to vote
until his name was stricken from the original list and his certificate
revoked. The position contended for by contestant, sustained by the
authorities, cited that where names appear on original registration
books, but do not appear on copies furnished precinct judges, it is an
error to reject the votes of such electors and that their votes are to
be counted (Hogan v. Pile, 2 Bartlett, 285); and that votes of
qualified electors should be counted (Delano v. Morgan, 2 Bartlett,
170; Vallandigham v. Campbell, 1 Bartlett, 231; Niblack v. Walls,
Forty-second Congress) is undoubtedly correct, but in this case we are
to consider the conclusiveness or sufficiency of the proof as to which
of the candidates the electors who are shown to have been registered
and to have held certificates would have voted for and what constitutes
competent proof thereof.
The committee found it proven that certain men were duly registered
and had certificates, and offered and attempted to vote for contestant,
and that they made affidavit and again tendered their ballots and were
refused. The affidavits made by the excluded voters were in form as
follows:
State of Arkansas, County of Ashley:
I, Jason C. Wilson, of the county and State aforesaid, do solemnly
swear that I am a male person over 21 years of age, and have been a
resident of the State of Arkansas more than six months previous to this
date, and an actual resident of Ashley County, in the State of
Arkansas, and am not disqualified from registering and voting by any of
the subdivisions 1, 2, 3, 4, 5, and 6 of section 3 of article 8 of the
constitution of the State of Arkansas; and that, on the 10th day of
October, 1872, I presented myself for registration as a voter to C. W.
Gibbs, president of the board of registrars for Ashley County, in said
State, duly appointed by the governor of said State, and acting, and at
Hamburgh, the place designated by the advertisements of the said
president of said board for the registration of the voters of Carter
Township, in said county, and on the day and between the hours
designated in said advertisement, and did take the oath prescribed by
section 5 of article 8 of the constitution of the State of Arkansas,
and that I was registered by said board of registrars as a legal voter
for said township, in said county, and that my name has been improperly
stricken from the registration books.
Jason C. Wilson.
Sworn to and subscribed before me, an acting and duly commissioned
justice of the peace for Ashley County, in the State of Arkansas, this
5th day of November, 1872.
Thos. J. Wells, Justice of the Peace.
State of Arkansas, County of Ashley:
I, Jason C. Wilson, of the county and State aforesaid, do solemnly
swear that, upon the 5th day of November, A. D. 1872, at the general
election for Representatives in Congress and Presidential electors,
held at said time, I did present before the judges of election for the
precinct of Carter, county of Ashley and State of Arkansas, the
affidavit hereunto annexed, and upon said affidavit I did offer to vote
the ticket thereunto attached; and that said judges of election in the
precinct aforesaid did reject and refuse to receive the same, and to
record my said vote thereunder.
Jason C. Wilson.
Sworn to and subscribed before me, an acting and duly commissioned
justice of the peace for Ashley County, in the State of Arkansas, this
5th day of November, 1872.
Thos. J. Wells, J. P.
A copy of the ticket was presented therewith.
Sec. 900
The committee say that the case of Vallandigham, v. Campbell shows
that the declaration of a voter as to how he voted or intended to vote.
made at the time, is competent testimony on the point.
The statement contained in the affidavits amounted to a declaration
of the voter which brought it within the rule of the case above cited.
The committee continue:
These declarations are valid as a part of the res gestse; and these
declarations are supported by the testimony of the supervisor, who
states the fact that nearly all of these 19 voters made these
affidavits when they presented their certificates, and with their
ballots attached, and that they deposited them with him, as supervisor,
on the day of election.
The objection that this is hearsay evidence, and that the deposition
of each particular voter is the only competent evidence of the fact
sought to be proven, is not well taken. The witness Butler does not
prove what these 19 voters said to him, but what they did. There is a
marked distinction between proof of what a party said and proof of acts
of the party or facts connected with what he did. In the one case it
may be hearsay testimony; in the other it is testimony as to facts
which the witness observed, which is just as competent as the testimony
of the voter as to facts in which he was an actor.
So the committee count for contestant the votes not received by the
election officers.
In Hempstead County a person claiming to be county clerk sent in a
return, which was carried into the abstract of the secretary of state.
Another return from this county by a person shown by the testimony to
be the legal clerk and in possession of the office, was made and showed
a different result from the first return. Furthermore the evidence
showed that the second return was based on a canvass of the precinct
returns, while the person making the first return did not make such a
canvass, and never had possession or control of the precinct returns.
But the committee do not disturb the first returns for the reason--
And the committee, if there was not an insuperable objection to the
admissibility of the testimony showing what has hereinbefore been
stated as to this vote in Hempstead County, and in the absence of any
rebutting testimony, would be inclined to put the vote of this county
down as showing a majority of 315 votes for Mr. Snyder, instead of 696,
as it is in the abstract certified by the secretary of state; but the
testimony, showing the grounds for reducing Snyder's vote 381 votes,
was taken by Mr. Bell, the contestant, after the expiration of the
forty days allowed him by law for taking proof, and Snyder entered and
filed his formal written protest at the time; and the committee can not
sanction a practice in violation of the law, especially when exception
was taken at the time to the taking of the testimony. It will be seen
hereinafter that even if this proof, as to the vote in Hempstead
County, was admitted (which the committee do not feel justified in
sanctioning), Snyder's majority would simply be reduced.
In Drew County there were various irregularities in the precinct
returns, such as failure to sign or swear to the poll books, delivery
of ballots unsealed, etc. But the committee do not find it necessary to
pass on the question involved, as it would not change the result.
They find as a result of their examination a majority of 462 votes
for sitting Member. Therefore they recommend resolutions confirming the
title of sitting Member and declaring contestant not elected.
On December 23,\1\ the report was considered in the House, and the
resolutions were agreed to without debate or division.
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\1\ Journal, p. 107; Record, p. 228.
Sec. 901
901. The Arkansas election case of Bradley v. Hynes, in the Forty-
third Congress.
The notice of contest being served after expiration of the legal time
and the testimony taken without regard to the statute, the committee
did not examine the case.
Payment of the expenses of a contestant by sitting Member, on
condition of latter's withdrawal, was not held as a corrupt obtaining
of the seat.
On June 16, 1874,\1\ Mr. Austin F. Pike, of New Hampshire, from the
Committee on Elections, submitted a report in the Arkansas case of
Bradley v. Hynes. Contestant had charged that sitting Member had
corruptly caused the returns to be so falsified as to reverse the true
result of the election, and had further paid him (the contestant) a sum
of money to abandon the contest.
Mr. Hynes denied this in a statement made under oath before the
committee; but admitted that he had reimbursed contestant for his
expenses when the latter proposed to withdraw.
The committee report that there was no evidence to show that
contestant had been elected, but, on the contrary, there was evidence
that sitting Member was entitled to a larger majority than the returns
gave him. The report continues:
His certificate of election was given him December 14, 1872, and the
notice of contest was not made until the 28th of January after, and
many days out of time.
So, too, the depositions which Bradley had taken were commenced
several days after his time had expired and with a total disregard of
the statute in nearly every other particular. All of which would seem
to indicate that he had something in view other than a serious contest
for a seat in Congress.
As to the payment of money by sitting Member, the report says:
While the committee regard this agreement as an act on the part of
Mr. Hynes which they can not approve, they do not find that it was made
for the purpose of securing his seat in Congress corruptly, nor that he
had any cause to fear the result of the contest.
The committee can not but regard the conduct of the memorialist as
dishonorable and mercenary. If he believed he had any merit in his
case, he betrayed the rights of those who gave him their suffrages. If
he did not believe his contest was meritorious, his demand for money
was most dishonorable.
The committee have instructed me to report the accompanying
resolution:
Resolved, That the Committee on Elections be discharged from further
consideration of the case of John M. Bradley against William.T. Hynes,
a Member of this House from the State of Arkansas.
This report was agreed to by the House on June 16,\2\ without debate
or division.
-----------------------------------------------------------------------
\1\ First session Forty-third Congress, House Report No. 646; Smith,
p. 240.
\2\ Journal, p. 1193; Record, p. 5046.