<DOC>
[Hinds Precedents -- Volume II]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:hinds_xxviii.wais]
Chapter XXVIII.
GENERAL ELECTION CASES, 1860 TO 1870.
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1. Cases in the Thirty-sixth and Thirty-seventh Congresses.
Sections 846-848.\1\
2. Cases in the Thirty-eighth Congress. Sections 849-954.\2\
3. Cases in the Thirty-ninth Congress. Sections 855-863.\3\
4. Cases in the Fortieth Congress. Sections 864-872.\4\
5. Cases in first session of the Forty-first Congress. Sections
873-876.\5\
6. The Senate case of John P. Stockton. Section 877.
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845. The Maryland election case of Preston v. Harris in the Thirty-
sixth Congress.
The House declined to reject the poll for riot which did not
interrupt the election or prevent an ascertainment of result.
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\1\ Additional cases in this period, classified in different
chapters, are:
Thirty-sixth Congress--
Love, California. (Sec. 314.)
Chrisman, v. Anderson, Kentucky. (Sec. 538.)
Thirty-seventh Congress--
Foster, North Carolina. (Vol. I, sec. 362.)
Pigott, North Carolina. (Vol. I, sec. 369.)
Segar, Virginia. (Vol. I, sec. 363.)
Upton, Virginia. (Vol. I, sec. 366.)
Beach, Virginia. (Vol. I, sec. 367.)
Wing, v. McCloud, Virginia. (Vol. I, sec. 368.)
Grafflin, Virginia. (Vol. I, sec. 371.)
McKenzie, Virginia. (Vol. I, sec. 372.)
Beach v. Upton, Virginia. (Vol. I, sec. 686.)
Rodgers, Tennessee. (Vol. I, sec. 370.)
Hawkins, Tennessee. (Vol. I, sec. 373.)
Flanders and Hahn, Louisiana. (Vol. I, sec. 379.)
Byington v. Vandever, Iowa. (Vol. I, sec. 490.)
Shieb v. Thayer, Oregon. (Vol. I, sec. 613.)
Morton v. Daily, Nebraska. (Vol. I, secs. 615, 687.)
Kline v. Verree, Pennsylvania. (Vol. I, sec. 727.)
(For footnotes 2, 3, 4, and 5 see page 2.)
Sec. 845
On February 27, 1861,\6\ the Committee of Elections reported in the
case of Preston v. Harris, of Maryland. No decision in this case was
reached by the House. The report of the committee was in favor of the
sitting Member, who remained undisturbed in his seat.
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\2\ Additional cases in the Thirty-eighth Congress:
McKenzie, v. Kitchin, Virginia. (Vol. I, sec. 374.)
Chandler and Segar, Virginia. (Vol. I, sec. 375.)
Fields, Louisiana. (Vol. I, sec. 376.)
Bonanzo, Fields, Mann, Wells, and Taliaferro, Louisiana. (Vol. I,
sec. 381.)
Bruce, v. Loan, Missouri. (Vol. I, sec. 377.)
Knox, v. Blair, Missouri. (Vol. I, sec. 716.)
Henry, v. Yeaman, Kentucky. (Vol. I, sec. 378.)
Johnson, Jacks, and Rogers, Arkansas. (Vol. I, sec. 380.)
Jayne v. Todd, Dakota. (Vol. I, sec. 619.)
Carrigan v. Thayer, Pennsylvania. (Vol. I, sec. 712.)
Kline v. Myers, Pennsylvania. (Vol. I, sec. 723.)
Gallegos, v. Perea, New Mexico. (Vol. I, sec. 728.)
\3\ Additional cases in the Thirty-ninth Congress:
Koontz v. Coffroth, Pennsylvania. (Vol. I, sec. 556.)
Fuller v. Dawson, Pennsylvania. (Vol. I, sec. 556.)
\4\ Additional cases in the Fortieth Congress:
Hamilton, Tennessee. (Vol. I, sec. 315.)
Butler, Tennessee. (Vol. I, sec. 455.)
Jones v. Mann and Hunt v. Menard, Louisiana. (Vol. I, sec. 326.)
Blakely v. Golladay, Kentucky. (Vol. I, sec. 322.)
The Kentucky Members, Kentucky. (Vol. I, sec. 448.)
Smith v. Brown, Kentucky. (Vol. I, sec. 449.)
McKee v. Young, Kentucky. (Vol. I, sec. 451.)
Symes v. Trimble, Kentucky. (Vol. I, sec. 452.)
Casement, Wyoming. (Vol. I, sec. 410.)
Wimpy and Christy, Georgia. (Vol. I, sec. 459.)
McGrorty v. Hooper, Utah. (Vol. I, sec. 467.)
Chaves v. Clever, New Mexico. (Vol. I, sec. 541.)
Hunt and Chilcott, Colorado. (Vol. I, sec. 599.)
Stewart v. Phelps, Maryland. (Vol. I, sec. 739.)
\5\ Additional cases in the first session of the Forty-first
Congress:
Rodgers, Tennessee. (Vol. I, sec. 317.)
Hunt v. Sheldon, Louisiana. (Vol. I, secs. 328-336.)
Sypher v. St. Martin, Louisiana.
Kennedy and Morey v. McCranie, Louisiana. (Vol. I, secs. 328-336.)
Newsham, v. Ryan, Louisiana.
Darrall v. Bailey, Louisiana. (Vol. I, secs. 328-336.)
The Georgia Members. (Vol. I, sec. 388.)
Ziegler v. Rice, Kentucky. (Vol. I, sec. 460.)
Tucker v. Booker, Virginia. (Vol. I, sec. 461.)
Whittlesey v. McKenzie, Virginia. (Vol. I, sec. 462.)
Grafton v. Connor, Texas. (Vol. I, sec. 465.)
Covode v. Foster, Pennsylvania. (Vol. I, sec. 559.)
Hoge and Reed, South Carolina. (Vol I, sec. 620.)
Wallace v. Simpson, South Carolina. (Vol. I, sec. 620.)
Boyden, v. Shober, North Carolina. (Vol. I, sec. 456.)
\6\ Second session Thirty-sixth Congress, House Report No. 89; 1
Bartlett, p. 346; Rowell's Digest, p. 169.
Sec. 846
The objection of the contestant that certain judges of the election
were not qualified the committee dismissed as not sustained by the
evidence.
Upon the objection that a condition of riot, lawlessness, and
intimidation prevailed in the seven city wards that gave heavy
majorities for the sitting Member, the committee found that there was
no such disorder as to bring the case within the recognized ruling of
the law of election as to riots. The committee say:
The only cases in which elections have been set wide for this cause
are where there was riot at the polls, or such tumult as interfered
with the election, and prevented an ascertainment of the result.
This rule is laid down in 2 Hayward on County Elections (pp. 580,
581, 582, 584). This was a case where a riot occurred at the polls that
led to the assault of the high sheriff in the execution of his duty,
and was of such a character as led to the closing of the poll, and the
election was set aside upon this ground and the illegal conduct of the
high sheriff.
Another case will be found in 1 Rowe on Elections (p. 334), where
there was such riot and tumult as to interrupt the election.
And another case, in Sheppard on Elections (pp. 105, 106), where it
was held that if riots are carried to a great extent, accompanied with
personal intimidation, so as to exclude the possibility of a fair
exercise of the franchise, they will avoid the election; as where, in
this case, the returning officer, being alarmed by the mob, offered to
return whoever the sitting Member chose to name; and he indicating
himself, the sheriff returned him.
And it is further laid down in 4 Selden (pp. 93 and 94) that,
``should a gang of rowdies gain possession of the ballot box before or
after the canvass of the votes, and destroy the whole or a portion of
the ballots, or introduce others into the box surreptitiously, so as to
render it impossible to ascertain the number of genuine ballots, the
whole should be rejected.''
Also, in 1 Peckwell (p. 77), which was a case of ``the most enormous
and unexampled riots;'' and it was proved that the mayor was applied to
to bring in the military to quell them, and the poll was stopped, and
not resumed until quiet was restored. The same law is laid down in
Haywood on Elections (pp. 580, 581, 582, 584); also in Rowe on
Elections (p. 334); also in Sheppard on Elections (pp. 105 and 106);
also in the celebrated Westminster cases and the Pontefract case.
Now, it is very clear, from the evidence, that no such condition of
things existed in the case under consideration. At every one of the
polling places in the district of the sitting Member the election was
uninterrupted; the votes were all quietly canvassed; the judges signed
the returns; they were transmitted, as the law requires, to the
governor of the State; the governor made proclamation of the result,
and transmitted to the sitting Member a certificate of his due
election. He is, therefore, in his seat under all the observed
solemnities of the laws of Maryland.
846. The Oregon election case of Shiel v. Thayer in the Thirty-
seventh Congress.
The House held valid an election called on a date fixed by a State
constitution, although the legislature had had an opportunity to fix
the times, etc.
May a State constitution fix the times, etc., beyond control of the
legislature?
On July 26, 1861,\1\ Mr. Henry L. Dawes, of Massachusetts, from the
Committee of Elections, made a report in the Oregon contested case of
Shiel v. Thayer.
In this case the sitting Member based his claim to the seat on the
undisputed fact that he had a majority of all the votes cast for
Congressman on the 6th of November, 1860, the day of the Presidential
election. The legislature of Oregon had fixed no time for the election
of Congressman, but on the first Monday of June,
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\1\ First session Thirty-seventh Congress, House Report No. 4; 1
Bartlett, p. 349; Rowell's Digest, p. 171.
Sec. 846
1860, an election had been held at which Mr. Shiel undisputably had a
majority of the votes cast for Congressman.
It is evident, therefore, that the question on which the case turned
was the legality of the June election.
The committee unanimously concluded that the June election was legal.
Oregon, on February 14, 1859, was admitted to the Union on a
constitution adopted on November 9, 1857. That constitution provided in
the body of it that ``general elections shall be held on the first
Monday of June, biennially,'' and in a schedule adopted as part of the
constitution:
If this constitution shall be ratified, an election shall be held on
the first Monday in June, 1858, for the election of members of the
legislative assembly, a Representative in Congress, and State and
county officers; and the legislative assembly shall convene at the
capital on the first Monday in July, 1858, and proceed to elect two
Senators in Congress, and make such further provisions as may be
necessary to the complete organization of a State government.
The committee discuss the case as follows:
The constitution having been, as before stated, adopted by the people
in November, 1857, in pursuance of the foregoing provision, an election
was held on the first Monday of June, 1858, at which a Representative
in Congress, the honorable Mr. Grover, was elected, and a legislative
assembly, which met at the capital on the first Monday in July, 1858,
and chose two United States Senators, Messrs. Lane and Smith. On the
admission of the State into the Union, February 14, 1859, Mr. Grover
took his seat in the House of Representatives, and Messrs. Lane and
Smith theirs in the Senate, by virtue of these elections. Mr. Grover's
term of office expired on the 4th of March following.
By another provision of the same schedule, section 7, it is provided
that ``all laws in force in the Territory of Oregon when the
constitution takes effect, and consistent therewith, shall continue in
force until altered or repealed.'' It was enacted by the territorial
legislature in 1845 that ``a general election shall be held in the
several election precincts in this Territory on the first Monday of
June in each year, at which there shall be chosen so many of the
following officers as are by law to be elected in each year--that is to
say, a Delegate to Congress, members of the Territorial council and
house of representatives, judges of probate, district attorneys,'' etc.
The committee are of opinion that the ``general election'' provided
for in the constitution, to be held once in two years, on the first
Monday in June, was designed to embrace at least all such officers as
were to be voted for by the people of the whole State, including a
Representative in Congress; and that, inasmuch as the same constitution
provided for the first of those elections, including by name a
Representative in Congress, on the first Monday in June, 1858, an
election should be held at the next general election in 1860 for a
Representative to the Congress next to be held after said election--
that is, to the present Congress--and that the contestant, having at
that time received a majority of the votes cast, is duly elected.
The committee would have bad no difficulty in coming to this
conclusion had it not been for the action of the legislature of Oregon
upon this subject. Notwithstanding this constitutional provision that
general elections shall be held on the first Monday of June biennially,
the legislature of Oregon seems to have believed that it had power to
fix another time for the election of Representative in Congress. On the
1st day of June, 1859, a law was enacted providing for the election of
a Representative in Congress on the 27th day of June, 1859. By virtue
of an election on that day the honorable Mr. Stout received a
certificate of election to the Thirty-sixth Congress, and served during
the term as such. At the session of the legislature in September last
both branches acted upon the idea that, notwithstanding this provision
in the constitution of Oregon, the legislature had the power to fix
another day for the election of a Representative in Congress. A bill
passed each branch fixing the day of the Presidential election, for an
election of a Representative in Congress once in four years, and for
such election at the general election in the alternate years. But the
two branches of the legislature differed upon the question whether it
should apply to the election of a Representative to the present
Congress, and so the bill never became a law. Various reasons have been
given for this action of the legislature, about which the contestant
and sitting Member widely differ. The committee have
Sec. 847
not deemed it necessary to determine what those reasons are, for, with
all due respect to the opinions of the gentlemen composing that
legislature, they are of opinion that this House must nevertheless be
the final judge of the meaning of this clause of the constitution of
Oregon, so far as it touches the question under consideration. And for
the reasons stated, the committee have no doubt that the constitution
of the State has fixed, beyond the control of the legislature, the time
for holding an election of Representative in Congress at the general
election to be held biennially, and that at such election so held in
pursuance of the constitution the contestant was duly elected to the
Thirty-seventh Congress. They therefore report the following
resolutions:
Although the report of the committee was unanimous, opposition
developed when the question was discussed in the House on July 30.\1\
Mr. Thaddeus Stevens, of Pennsylvania, offered as a substitute for
the proposition of the Committee on Elections an amendment declaring
that neither Mr. Shiel nor Mr. Thayer was entitled to the seat. He
admitted that the constitution of a State might fix the time for the
first election, but contended that after the first election the time
should ``be prescribed in each State by the legislature thereof,'' in
the words of the Constitution of the United States.
Mr. Dawes replied that if there were a conflict between the
legislature and the constitution of Oregon there might be ground for
the amendment proposed. But the legislature, by passing no law, had
acquiesced in the provision of the State constitution. In the opinion
of Mr. Dawes, the provision of the United States Constitution which
used the word ``legislature'' meant that the time should be fixed by
the constituted authorities of the State. Most of the Members from new
States had come to the House by virtue of elections fixed by their
constitutions.
On the question of adopting Mr. Stevens's amendment there appeared,
yeas 37, nays 77; \2\ so the amendment was rejected.
The resolutions of the committee declaring Mr. Shiel, the contestant,
entitled to the seat and declaring sitting Member not entitled to it,
were then agreed to without division.
847. The Pennsylvania election case of Butler v. Lehman in the
Thirty-seventh Congress.
The House having passed on the prima facie title to the seat, the
Elections Committee declined to reopen that question.
The House being of opinion that votes were cast as returned, declined
to reject the return because not signed by the election judge as
required by law.
The House, overruling the committee, declined to find the return of
the election officers fraudulent on the strength of an impeached
recount of the votes.
In order for a recount of votes to rebut the presumption in favor of
the election officers it must be shown that the boxes have been kept
inviolate.
On January 7, 1862,\3\ the Committee on Elections reported in the
Pennsylvania case of Butler v. Lehman.
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\1\ Globe, pp. 352-357.
\2\ Journal, p. 178.
\3\ Second session Thirty-seventh Congress, House Report No. 6; 1
Bartlett, p. 353; Rowell's Digest, p. 172.
Sec. 847
The prima facie title to the seat had by the House been given to Mr.
Lehman, and while this portion of the case presented unusual features,
the committee did not consider it proper to reopen the question of
prima facie right after the House had decided it.
The sitting Member, on the face of the corrected returns on which the
certificate had been issued, had a plurality of 132 votes.
The contestant denied the correctness of these returns, and attacked
them on two grounds.
The committee dismiss the first ground, saying:
It is shown that the return from the eleventh division of the Second
Ward, which gave Mr. Lehman 210 votes and Mr. Butler 31 votes, was
never signed by the judge, as required by law. (See Brightly's Annual
Digest, sec. 33, p. 1096.) If this return should be rejected on account
of said informality it would make a difference in favor of the
contestant of 179 votes, and would elect him. But the committee are of
opinion that the votes as returned were really cast for the parties
named, and that the objection is a mere technical one that ought not to
prevail.
The second objection urged by the contestant is the one on which the
issue was joined and on which the decision of the case turned.
The objection was that in certain wards and divisions of wards in the
district, by reason of fraudulent action of the election officers, the
returns did not give a true statement of the actual votes cast; and the
contestant asked a recount of the ballots. The law of Pennsylvania
provided for such a recount, as follows:
As soon as the election shall be finished the tickets, list of
taxables, one of the lists of voters, the tally papers, and one of the
certificates of the oath or affirmation taken and subscribed by the
inspectors, judges, and clerks shall all be carefully collected and
deposited in one or more of the ballot boxes, and such box or boxes
being closely bound round with tape, shall be sealed by the inspectors
and the judge of the election, and, together with the remaining ballot
boxes, shall, within one day thereafter, be delivered, by one of the
inspectors, to the nearest justice of the peace, who shall keep such
boxes containing the tickets and other documents to answer the call of
any person or tribunal authorized to try the merits of such election.
The recount took place in the presence of both parties to the
contest, and showed a gain of 167 votes for the contestant, thus giving
him a plurality of 35 votes. This gain was found in the boxes of three
divisions--one in the Third Ward, another in the Second Ward, and the
third in the Fourth Ward. The changes in no two of these three
divisions were large enough to destroy the plurality of the sitting
Member. It was therefore necessary to establish the verity of the
recount in all three divisions.
The sitting Member objected to the validity of the recount on two
grounds:
First. That the ballot boxes were not sufficiently identified as
belonging to the divisions alleged.
Second. That the boxes had been opened and contents changed before
the recount took place.
The minority of the committee urged in behalf of this contention of
the sitting Member that the primary returns of votes made under State
authority were prima facie evidence of their legality, of the number of
votes cast, and the rights of the respective candidates. It was
necessary to inquire whether the testimony presented by the contestant
was sufficient to overcome the legal effect of the returns. The rule as
to presumptive evidence was that no person in the absence of
criminative
Sec. 847
proof should be supposed to have committed any violation of the
criminal law. The minority say:
It seems, then, as we understand the law, that the contestant might
be justly and properly held to prove the truth of his charges against
the election officers, not merely by the weight of evidence, as in
civil cases, but beyond a reasonable doubt. The only testimony, as we
have seen, that tends to establish their guilt is the recount of the
ballots. Taking into view the difficulty of identifying the boxes, the
manner in which they were kept, the time that had elapsed before they
were opened, had those officers been on trial under an indictment for
the offense, with no other testimony against them, it is a matter of
grave doubt if this evidence, standing unsupported as it does, would
have been sufficient to have put them upon their defense. The testimony
is circumstantial, and only one circumstance, unsupported in any way.
It may be well questioned whether this circumstance, standing as it
does alone, can justly be regarded as affording evidence of higher
nature than what is technically known as ``a slight presumption of
guilt,'' which, it is said, ``may excite suspicion, but is not proof;
nor does it change the burden of proof.'' In order to a successful
prosecution of those persons in the case supposed, the testimony
against them should not only be such as to countervail the presumption
of innocence, which the law itself makes evidence for the accused in
all prosecutions for crime, but also the still stronger presumption
with which it fortifies and guards the official doings of its own
officers. It is not enough, in such cases, that the testimony tends
even strongly to establish the guilt of the accused, but that guilt
must be shown to be inconsistent with any reasonable supposition of
innocence.
The minority of the committee also dwelt upon the abuses and evil
consequences which must result from the reopening of ballot boxes,
except under stringent and well-understood rules.
As to the first objection of the sitting Member, the majority of the
committee admitted that, so far as identification was concerned, there
was much difficulty in identifying to what division a ballot box
belonged until it had been opened. Then the papers directed by law to
be placed in the ballot box would identify it as to the division to
which it belonged, while the ballots themselves would show at what
election they had been cast. But such tests, as well as a process of
excluding the rem.g.remaining boxes in each ward, which were
identified, convinced the majority of the committee as to the identity
of the boxes containing the ballots which were recounted.
The minority of the committee made the point that the election
officers, whose testimony as to the question of identity would have
been the best in the case, were not called at all by the contestant and
afterwards when called by sitting Member were unable to identify them,
and further testified that if the boxes were the same the votes taken
from them on the recount were not those put in them by the officers on
the night of the election. The minority strongly contended that the
facts did not show a sufficient identification of the boxes.
As to the second objection, that the boxes had been opened and the
contents changed before the recount, the majority of the committee say:
The contestant produced these boxes from their legal and rightful
custodians, sealed up, and in the same apparent condition they were in
when left with the alderman. Under these circumstances the burden of
proving them to have been tampered with properly rests on the
respondent; but no proof upon this point was submitted, except some
testimony showing that some of the boxes were left in such a situation
that it was possible for some unauthorized person to have meddled with
them.
But there is no proof to render it probable that such was the case.
The respondent attempts to rebut the evidence afforded by the recount
of the ballots, by calling the election officers who made the division
returns to testify that those returns were correct; but in the opinion
of the committee this testimony neither impairs the case of the
contestant nor strengthens that of the respondent.
Sec. 848
Officers who had declared upon their official oaths that returns made
by them were true would not be likely to come into court afterwards and
swear that they were false.
The committee have not deemed it necessary to determine whether the
errors in the division returns, before mentioned, were the result of
deliberate fraud or mistake on the part of the election officers, for
the motive which actuated them is immaterial. It is enough that the
returns in the divisions specified were false in fact, and that the
contestant was thereby deprived of votes fairly and legally cast for
him, enough to have elected him; of this the committee are fully
convinced.
The minority, in accordance with the principle announced by them as
to the character of evidence required to prove fraudulent acts on the
part of the election officers, urged that the contestant had by no
means shown, as they thought he should show, that the boxes had been so
kept as to rebut any reasonable presumption that they had been tampered
with. The minority quote, testimony to show that the boxes were not by
any means kept with the care essential to preclude opportunity for
fraud.
On January 16,\1\ the report was debated at length, and on January
17,\2\ the House, by a vote of yeas 77, nays 67, amended the
resolutions proposed by the majority of the committee so as to declare
the contestant not entitled to the seat and declaring the sitting
Member elected and entitled to the seat.
The resolutions as amended were then agreed to without division. So
the report of the majority of the committee was overruled.
848. The Pennsylvania election case of Kline v. Verre in the Thirty-
seventh Congress.
Example of a general specification in a notice of contest which does
not meet the requirements of the law.
Instance wherein the Elections Committee, after ruling a notice of
contest insufficient, permitted contestant to specify orally.
The custody of the ballot boxes being suspicious, the House declined
to set aside the returns on the strength of a recount.
On February 27, 1862,\3\ the Committee on Elections reported on the
Pennsylvania case of Kline v. Verre.
This case involved two questions: A preliminary one as to the
sufficiency of the notice given by the contestant, and a question
relating to the truthful ascertainment of the number of votes cast.
As to the preliminary question, the law of 1851 required of the
contestant that he should ``specify particularly the grounds upon which
he relies in the contest.'' The committee say:
Did this notice specify particularly the grounds of this contest? It
is proper to state that the contestant waived before the committee all
grounds of contest, except such as may be found in the last clause of
the tenth specification. The attention of the House is therefore called
to this specification, and to the particularity of the grounds of
contest which that clause in it contains. It is in the following words:
``10. The examination of the tally papers relating to said
Congressional election, and deposited in the office of the prothonotary
of the court of common pleas, and deposited in the several ballot boxes
in said Congressional district, together with a recount of all the
ballot boxes in said district at said election, will show that you were
not elected, and that I was elected.''
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\1\ Globe, pp. 365-375.
\2\ Journal, p. 196; Globe, p. 379.
\3\ Second session Thirty-ninth Congress, House Report No. 40; 1
Bartlett, p. 381: Rowell's Digest., p. 175.
Sec. 848
Without subjecting this specification to the criticism that the last
clause is inseparably connected with the first, so that the whole must
be taken together and constitute but one allegation quite different in
its meaning from any just interpretation of the last clause, if
standing alone, suppose it were a simple allegation, standing alone,
that ``a recount of all the ballot boxes in said district will show
that you were not elected, and that I was elected,'' in what just sense
could it be said that such an allegation is a compliance with that
provision of law which requires of the contestant to ``specify
particularly the grounds upon which he relies in the contest?''
The committee concluded unanimously that the notice was ``in no just
sense a conformity with the requirement of the statute.'' They say:
The question was thereupon presented to the committee, Shall parties
contesting seats in the House of Representatives be held to conduct
that contest according to the requirements of the statutes of the
United States, or be permitted, without expense, to depart from and
disregard the plainest provisions of those statutes in this regard,
founded in the plainest principles of justice and fair dealing? Long
before the statute was enacted parties to contested elections, both in
England and this country, were held to a compliance with the same
rule.--(Leib's case, Clark & Hall, 165; Luttrell v. Hume, 4 Doug.
Elect. Cases, 25; Skerret's, 2 Pars., 509; Carpenter's case, 2 Pars.,
537; Kneass's case, 2 Pars., 553.) Several of the cases here cited are
from the State of Pennsylvania, and, so far as the local law of the
State where this contest has arisen forms a rule for the guidance of
the parties, are clear and decisive against the sufficiency of this
notice of contest.
Therefore the committee unanimously came to the conclusion that the
notice was in ``no just sense a conformity with the requirements of the
statute, or the well-settled rules which should govern in all contests
of this kind.''
To avoid all injustice, however, the committee allowed the contestant
to specify and particularize orally. This was done by specifying
precincts wherein mistakes were alleged to have been made and
particularizing the effects of such mistakes in numbers of votes.
As to the second branch of the case, there was a question as to the
recount of votes. The returned majority of the sitting Member was 22
votes. Contestant's allegations were that in certain precincts there
was sufficient wrong counting of votes actually cast to overcome the
majority returned. The law of Pennsylvania provided as follows:
As soon as the election shall be finished the tickets, list of
taxables, one of the lists of voters, the tally papers, and one of the
certificates of the oath or affirmation taken and subscribed by the
inspectors, judges, and clerks, shall all be carefully collected and
deposited in one or more of the ballot boxes, and such box or boxes,
being closely bound round with tape, shall be sealed by the inspectors
and the judge of the election, and, together with the remaining ballot
boxes shall, within one day thereafter, be delivered by one of the
inspectors to the nearest justice of the peace, who shall keep such
boxes containing the tickets and other documents to answer the call of
any person or tribunal authorized to try the merits of such elections.
The committee found the case dependent on two considerations:
Were the ballot boxes produced the ones actually used at these
precincts at the election contested? And did they contain untouched the
ballots so cast? Indeed, it must be apparent to everyone that unless
the committee could be satisfied of both identity and security they
could not control and correct the sworn return by any subsequent count.
Upon the question of identity the committee have had little or no
difficulty. It was testified in respect to each of the boxes under
consideration by the alderman of the ward who resided nearest the
precinct that he received the box from the election officers of that
precinct on the night of the election as and for the ballot box used at
that precinct, and each was so labeled when received. There was other
Sec. 849
evidence tending to strengthen this. And the committee were left
without doubt that the boxes produced were those actually used at these
precincts.
Upon the question of security, whether these ballot boxes, when
opened and recounted before the magistrates, were in the same condition
as when sealed up by the election officers and delivered to the
alderman on the night of the election, there was much conflicting
testimony and much doubt.
An example of the doubt is shown by the following conditions
developed in the testimony. The ballot box of one precinct had been at
times in the custody of a man of bad reputation, a constable who had
been convicted of extortion, and had been pardoned by the governor.
This constable had let the box go into the possession of a person whom
he did not know, the pretext being that it was to be taken to the
magistrate. The committee therefore thought that ballots kept in such
custody were not trustworthy evidence after three months, especially
when the number of votes did not agree with the sworn return. In
another precinct the box had been left in an unfastened closet, with no
one to care for it, for three days and showed exterior and interior
signs of having been tampered with, the condition of the tickets being
especially suspicious. In a third precinct the box had never been
sealed according to law or had been subsequently tampered with, and the
ballots were in a suspicious condition.
The contestant claimed the benefit of 54 votes gained for him by the
recount of the ballots in these three suspicious boxes, these votes
being necessary to show his election.
The committee were unanimously of the opinion that he was not
entitled to these votes, and reported resolutions to that effect and
declaring the sitting Member entitled to the seat.
On March 4,\1\ after some debate, the resolution declaring contestant
not elected was agreed to, yeas 105, nays 13. The resolution declaring
the sitting Member entitled to the seat was agreed to without division.
849. The Massachusetts election case of Sleeper v. Rice in the
Thirty-eighth Congress.
Discussion as to the validity of an amended return under the law of
Massachusetts in 1864.
A recount by the election officers at their own instance, and
unimpeached by anything showing fraud, was sustained by the House.
A declaration of result in open ward meeting, under a State law, was
held prima facie evidence of the result, but controllable by evidence.
On February 17, 1864,\2\ the Committee on Elections reported on the
Massachusetts case of Sleeper v. Rice. The title to the seat depended
on the true number of votes cast in Ward 12 of Boston, there having
been two counts, one of which showed 85 plurality for Mr. Sleeper and
the other a plurality of 28 for Mr. Sleeper, a change sufficient to
change the result in the district. The committee, whose report seems to
have been unanimous, say:
It is necessary to a correct understanding of the merits of this
controversy that the method of conducting elections in Massachusetts be
known. Polls are opened in cities in each ward, and the election is
there conducted by a board of ward officers, consisting of a warden,
clerk, and five inspect-
-----------------------------------------------------------------------
\1\ Journal, pp. 397, 398; Globe, pp. 1054-1062.
\2\ First session Thirty-eighth Congress, House Report No. 23; 1
Bartlett, p. 472; Rowell's Digest, p. 187.
Sec. 849
ors. The voting is by ballot, and every voter's name is found upon a
check list. A part of these ward officers has charge of the ballot
boxes and others the check list. When a voter approaches to vote, his
name is fast found and checked on the check list, and he then casts his
ballot in the box. At the close of the poll the result, after having
been ascertained by the ward officers mentioned, is certified in blanks
prepared for the purpose by a majority of those officers, publicly
declared there before the adjournment in open meeting, entered upon the
records of the board, and certified copies thereof delivered by him
forthwith to the city clerk, who shall immediately enter them upon the
city records. Certified copies of this record, after examination and
other proceedings, which will be hereafter alluded to, and transmitted
in the case of Representative in Congress within ten days to the
secretary of the Commonwealth, and by him laid before the governor and
council, who, as a board of canvassers, canvass the returns from the
entire district, declare the result, and give a certificate of election
to the person appearing to them to be elected.
In the present case the ward officers on the night of election,
November 4, 1862, sent to the city clerk a certificate showing a
plurality of 85 votes for Mr. Sleeper. And the mayor and aldermen
certified the result in the wards of the district.
On November 11, seven days after, the ward officers of Ward 12 sent
to the city clerk an amended certificate showing a plurality of only 28
for Mr. Sleeper. Thereupon the mayor and aldermen transmitted an
amended certificate to the secretary of the Commonwealth. The committee
say:
The governor and council received the amended return and gave the
certificate as required by it to Mr. Rice. Upon the legality and truth
of this amended return hangs this contest. In respect to it Mr. Sleeper
claims, first, that it is illegal, because there is no law authorizing
the ward officers to make an amended or additional return of this
nature.
The law requires the result to be declared in open ward meeting, and
this result never has been so declared, and can not therefore be
accepted as the result; and because the mayor and aldermen have never,
as required by law, passed upon this amended or additional return, or
determined anything one way or the other based upon it, but only
transmitted the same to the governor and council, with a hypothetical
certificate of their own, of no force in law, and, secondly, that the
amended return is not true.
Although the last proposition of Mr. Sleeper is the most important of
all, lying at the foundation of all investigations of the committee,
who entertain no doubt that the seat should be awarded to that
candidate for whom the greatest number of legal votes were cut, however
officers may have conformed to or disregarded the requirements of law
in Massachusetts in declaring, certifying, or canvassing the votes
after they have been so cast, yet the committee, before proceeding to a
discussion of the evidence bearing upon the question of how many votes
were actually cast at that poll, embraced in the second proposition of
Mr. Sleeper, stop for a moment to consider the soundness of his first
proposition. Is there any law authorizing the ward officers to make an
amended or additional return of the nature of the one here made? The
duty of the ward officers, as well as of the mayor and aldermen, in the
premises is prescribed in chapter 7, section 16, of the general
statutes of Massachusetts in these words:
``The mayor and aldermen and the clerk of each city shall forthwith,
after an election, examine the returns made by the returning officers
of each ward in such city, and if any error appears therein they shall
forthwith notify said ward officers thereof, who shall forthwith make a
new and additional return, under oath, in conformity to truth, which
additional return, whether made upon notice or by such officers without
notice, shall be received by the mayor and aldermen or city clerk at
any time before the expiration of the day preceding that on which by
law they are required to make their returns, or to declare the result
of the election in said city; and all original and additional returns
so made shall be examined by the mayor and aldermen and made part of
their returns of the results of such election. In counting the votes in
an election no returns shall be rejected when the votes given for each
candidate can be ascertained.''
In this clear and comprehensive section is comprised the whole law of
Massachusetts upon the subject. By it a new or amended return is not
only authorized, but required in certain cases--its language being:
``Who shall forthwith make a new and additional return.'' Of course the
new return
Sec. 849
is to be different from the one already made, or it would be useless.
It must, therefore, be different from the original declared result, for
that is what the law requires, and is in the first return, excepting
always the possible case of a clerical mistake in transcribing a
declared result into a certificate, which can not embrace the whole
scope of the section. This disposes of the objection that the result
included in the second return has never been declared in open ward
meeting, for if it had been so declared there would have been no
occasion, except in the one improbable case stated, for a new return.
The last clause in the statute renders immaterial also any defects of
form in the first return, holding it sufficient when the true number of
votes can be ascertained from it, and consequently requiring a new
return only when the true number of votes had not been declared and
certified already.
The committee therefore concluded that a ``result declared in open
town meeting'' might be amended, and that the statutes of Massachusetts
contained ample provision for the proceedings of the ward officers and
mayor and aldermen of Boston in respect to this new and amended return.
The committee considered, however, that the most important branch of
the case yet remained, viz: Did the new return ``conform to the
truth?'' The committee therefore proceeded to go back to the return,
and examine what was the actual vote cast in Ward 12 for Representative
in Congress. It appeared that the count on election day showed a
difference of 60 votes between the aggregate of votes for
Representative to Congress and for governor and other officers. Inquiry
as to this discrepancy induced the ward clerk to examine and compare
the memoranda of the count. Finding certain discrepancies--
the ward clerk conferred with the former clerk of the ward and other
friends, and then returned and examined by himself alone, and unbeknown
to anyone else, the bundle of votes in his attic. Taking off the paper
wrapper, but without untying the string around the middle of the bundle
of packages, or removing the packages, he examined the votes in each
package, took off the number of votes for Representative in Congress on
each of the packages, and then restored them to their former place in
the closet. In consequence of the conviction that an error bad been
committed in counting, which this examination produced on his mind, he
then procured a meeting of all the ward officers at his house on the
following evening, when the votes were by them there recounted with
great care, and the result as thus ascertained was embodied in the new
or amended return, signed by all the ward officers, seven in number,
four of them voting themselves for Mr. Rice, and three of them for Mr.
Sleeper, sworn to by them all, forwarded to the mayor and aldermen, and
by them transmitted to the governor and counsel within the time
prescribed by law. In counting the votes at this time the ward officers
took each of the small packages upon which the number of votes was
marked, recounted it carefully, and checked the corresponding numbers
upon paper K.
The committee say of this second count:
That this was the correct count of the ballots on the second count
the Monday night after the election, no one disputes, and an
examination of the evidence, with a sworn return of the seven ward
officers, does not leave room for doubt. If, therefore, the ballots had
not in the meantime been tampered with, the proof could not be made
stronger that the true result had been reached. Upon this point there
is not the slightest evidence calculated to awaken suspicion. The clerk
of the ward, whose testimony is uncontradicted, and whose character
appeared to be above reproach, testifies positively that the bundle
recounted on Monday night contained all the votes cast on the day of
election, and none others, in precisely the same condition as when tied
up at the close of the polls; that he took them that night home with
him, and put them in a trunk in a closet in his attic; that the trunk
shut with a spring lock, the key remaining in the lock; that no person,
to his knowledge, knew they were there but himself; that his own family
consisted of a wife, confined all this time to her bed with sickness,
an infant child, a nurse, an aunt visiting the family, and himself.
The committee present as part of their report facsimiles of two of
the memoranda of the count, and show that, unless they are forged, they
sustain the result of the
Sec. 850
recount. The committee conclude that not only the corroborative
testimony, but ``the very sight of the original papers'' shows how
preposterous is the claim that they have been changed to produce the
result.
The committee therefore concluded that ``in the absence of a particle
of testimony calculated to cast suspicion upon the fairness and truth
of this recount,'' Mr. Sleeper was not entitled to the seat, and that
Mr. Rice was entitled to it.
When the case was debated in the House on March 4,\1\ the contestant,
who was heard at length, impugned the integrity of the ward clerk and
charged that he had prepared the memoranda and ballots to produce the
results.
As to the doctrine that the result declared in open town meeting was
res adjudicata, and past any examination by the House, Mr. Henry L.
Dawes, of Massachusetts, chairman of the Committee on Elections, said:
The Committee on Elections were of the opinion that no such rule
exists in Massachusetts, or should govern us in the House of
Representatives; that while they would put great reliance on that open
declaration and regard it as prima facie evidence of the actual result,
not to be controlled by any slight or suspicious evidence, nevertheless
it is controllable, and to be controlled by evidence that will not
admit of any reasonable doubt, so that the truth may be arrived at
satisfactorily to fair and candid minds as to the actual result of the
legal vote.
The House, without division, agreed to the resolutions reported by
the committee.\2\
850. The Missouri election case of Knox v. Blair in the Thirty-eighth
Congress.
The pleadings in both the notice and answer being bad, the committee
condemned them but examined the case.
The judges of an election having joined in partisan and irregular
conduct and testimony showing evidence of extensive fraud, the entire
return was rejected.
The committee considered an issue covered by testimony admitted
without objection, although not specified in the pleadings.
On May 5, 1864,\3\ Mr. Henry L. Dawes, of Massachusetts, from the
Committee on Elections, submitted a report in the case of Knox v.
Blair, of Missouri.
The report, at the outset, after noting the specifications of the
contestant and the answer of the sitting Member, says:
The House will not fail to notice the extraordinary character of many
of the allegations of both contestant and sitting Member, as well in
the matter as in the manner of their presentation. For vagueness,
uncertainty, and generality they are, in the opinion of the committee,
without example, and seem to have been drawn in studious disregard both
of the act of Congress and of all precedent. But as neither contestant
nor sitting Member was in a situation to take exception to the
substance or mode of the other's pleading, the committee were not
called upon for a decision upon this point, but present the case as
they find it upon the record. They do not feel at liberty, however, to
permit these pleadings to pass into a precedent without recording the
opinion that many of the allegations on both sides are bad both in
substance and form.
-----------------------------------------------------------------------
\1\ Globe, pp. 942-949.
\2\ Journal, p. 346; Globe, p. 949.
\3\ First session Thirty-eighth Congress, House Report No. 66; 1
Bartlett, p. 521; Rowell's Digest, 190.
Sec. 850
The minority, calling attention to the above criticism, used it as an
argument against the conclusion of the majority, as to the Abbey
precinct, saying:
The first section of the act of 1851 (9th Statutes, p. 568) requires
that the grounds of contest shall be specified particularly in the
notice of contest.
This is but the reenactment of the parliamentary rule; and the
practice has been uniform under this to restrict the contest to the
points presented in the notice; and the ninth section of the act
declares all evidence illegal which does not bear on the specifications
of the notice, by restricting the evidence to be taken to the
specifications made in the notice. The only ground presented by the
contestant, in connection with this precinct, is contained in his first
specification, which is in the following words:
``First. That at least 400 illegal votes were cast for you at a
precinct known as the Abbey precinct, in said district. That the
persons voting had not been citizens or inhabitants of the State of
Missouri for one year previous to said election; nor had they been
residents of said district for three months previous to said election.
Many of said voters were minors under the age of 21 years. A list of
the voters whose votes are contested is annexed to and made a part of
the notice.''
It will not be pretended that this notice declaring the intention of
the contestant to contend meant merely that the individuals named were
not qualified voters, for one or the other of the reasons mentioned
contains, either in form or substance, notice that it would be
``contended by the contestant that the voting at this precinct was of
such a grossly fraudulent character as to involve all concerned in it
either in participation or passive permission, and to render it
impossible to sift and purge the poll''--which the committee report to
be the present ground taken by the contestant.
But in debate Mr. Dawes expressly stated \1\ that the specification
in regard to the Abbey precinct was more particular than usual. It
actually set forth the names of the voters objected to, thus setting
out the facts more precisely than any case occurring to his
recollection under the law of 1851.
As to the merits of the contest, the most important issue arose as to
this precinct of Abbey. The return from this precinct gave Mr. Blair
424 votes, Mr. Knox 41, and Mr. Bogy 11 votes. In the two Congressional
elections before the one in question and in a judicial election since,
the total vote had not in any case exceeded 140 votes.
There had been little if any change in the population of the
precinct. Furthermore, of the 480 who voted at this election in 1862,
19 only voted in 1858, only 13 in 1860, and only 36 in 1863. Persons
acquainted with the voters belonging in the precinct visited the polls
during the day, but saw scarcely a person known to them among the
hundreds crowding the place. By the law voters were allowed to vote in
precincts where they did not live, the requirement of an oath being
provided to prevent repeating. It was in evidence that soldiers,
including paroled prisoners, voted in large numbers illegally. The
committee say of this precinct:
The judges of the election at this precinct were (p. 69) Mr. Price,
B. Hamerler, and Mr. Carpenter. Yet Carpenter, without authority of
law, substituted in his place (p. 70) one Jerry Millspaugh during a
portion of the day, who acted as judge while he electioneered for the
sitting Member, and vice versa. The other two judges also forgot their
duty as judges in their zeal for the sitting Member (p. 70). The polls
at this precinct seemed to have been under the control of one Charles
Elleard, an active partisan of the sitting Member, the owner of a race
course near by, who destroyed the tickets for the other candidates (p.
70), put one man out of the room because he would not vote for the
sitting Member, declaring ``We have it our own way here to-day, ``and,
as he tore up the tickets, ``Damn it, we don't want any such tickets
around here'' (p. 70).
Upon this proof of the manner of voting at the Abbey--the conduct of
the judges in admitting illegal voters to cast their ballots in a body,
without any evidence that they even administered to a single one the
oath required by law of nonresidents of the district, themselves acting
as partisans of the
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\1\ Globe, p. 2959.
Sec. 851
sitting Member, and, against law, exchanging places with other
partisans not authorized to act as judges; surrendering the control of
the voting place to a violent partisan of the sitting Member, and at
last achieving the astonishing result of polling nearly four times as
many votes as were ever before or since polled at that precinct, from
voters all strangers to long residents of the district--the contestant
claims that the poll itself should be rejected.
When the result in any precinct has been shown to be ``so tainted
with fraud that the truth can not be deducible thereform,'' then it
should never be permitted to form a part of the canvass. The
precedents, as well as the evident requirements of truth, not only
sanction but call for the rejection of the entire poll when stamped
with the characteristics here shown.
The majority, in support of this action, cite the case of Blair v.
Barrett.
The minority of the committee, as already indicated, raised the point
that the action of the judges was outside of the pleadings, and that
therefore the committee were going outside the specifications for the
benefit of the contestant, although on a question of the admissibility
of testimony the sitting Member had been held to the strict rule. In
reply, it was argued during debate that the question of the conduct of
the judges was properly considered, since it had been covered by
testimony regularly presented and admitted without objection as a part
of the case. The minority further denied the conclusions of fact by the
majority, and the application of the precedent of Blair v. Barrett.
851. The case of Knox v. Blair, continued.
The Elections Committee held copies of muster rolls of a regiment
prima facie evidence of the age of soldier voters.
Persons intending to vote fraudulently must be shown to have done so
at some poll to justify corrections on their account.
The House revised the action of certain canvassers who had rejected
polls for want of an abstract of votes.
The second question considered by the committee in their report
related to two companies of the Thirty-second Regiment of Missouri
Volunteers, who under the law voted in their camps. To prove illegal
votes of minors and others the contestant offered copies of the muster
rolls of the two companies for comparison with the poll booths to prove
that minors and persons not qualified had voted for sitting Member.
The disposition of the votes affected by this comparison depended on
a question as to the admissibility of the muster rolls as evidence. On
this point the committee say:
The contestant offered what he alleged were copies of the muster
rolls of these companies (pp. 200-203). The sitting Member objected to
these muster-rolls and to all others offered by contestant, 37 in all,
found between pages 199 and 297, for the following reasons: Because,
first, they ``are neither certified copies nor sworn copies, in any
true sense of the word;'' that the papers from which those copies
purport to have been taken were not in the proper place of deposit, nor
in the hands of the legal custodian, and that they are, in many
instances, copies of copies. The testimony shows (p. 90) that the
papers are copies of muster rolls found in the adjutant-general's
office of the State of Missouri, made by the witness, and sworn to as
true copies by him. The committee are of opinion that, inasmuch as
these are muster rolls of regiments raised by the State of Missouri,
and afterwards mustered into the service of the United States, the rule
of the military service requiring one copy of these rolls to be
deposited with the Adjutant General of the United States at Washington
does not make either the copy deposited with the adjutant general of
Missouri or that kept with the regiment copies of the one so deposited
in Washington any more than that is a copy of either of them, but that
either and each of them may be treated as an original, and the muster
roll of the regiment for all purposes for which it is to be consulted
as such, and the adjutant-
Sec. 851
general of Missouri a proper custodian thereof. ``Sworn copies'' of
papers are expressly recognized in the act of Congress providing for
taking testimony in contested election cases. (Brightley's Dig., p.
255.) The committee, therefore, deemed these papers as properly
authenticated. It was claimed by the contestant that these muster rolls
were evidence of the following facts, viz, who were members of the
regiment to which the rolls belonged, and what was the age and
residence of the soldier enlisting. While, on the other hand, it was
objected by the sitting Member that, if properly authenticated, still
the rolls would be evidence of nothing except the facts required by law
to be recorded in them, and that neither the age nor the residence of
the soldier was required to be inserted upon the muster roll, and could
not therefore be proved by it. The committee were of opinion that the
law requires that the age of a soldier must be made known at the time
of his enlistment; that by act of Congress (Stat. 12, p. 502) the oath
of enlistment is conclusive against the soldier as to his age; and that
the record of age made from the oath of enlistment upon the muster roll
by the proper officer at the mustering in should be taken as prima
facie evidence of the age of a recruit by third persons, especially by
those who seek to avail themselves of the vote of such soldier. But the
committee are of opinion that the muster roll is not evidence of the
residence before enlistment of the soldiers whose names it bears. It is
not of the slightest consequence to the recruiting service to know the
residence of the recruit. The law does not require it to be
ascertained, nor does the muster roll purport to give it, but only the
place where the recruit ``joined for duty and was enrolled.'' But it is
known that recruits are constantly going from all parts of a State and
from different States to favorite places of rendezvous, and there
enlisting, so that the place where a recruit enlisted is no evidence of
his residence.
While, therefore, the committee admit the muster rolls as evidence of
what men compose a regiment, and of their age, they are still only
evidence of those facts at the time the muster roll is made out.
But the committee are of opinion that a muster roll made out a long
time before the day of election (November 4, 1862) is not evidence of
the ``true state'' of a regiment at that time. Regiments are constantly
changing. With many of them recruiting is all the time going on, and
men are every day discharged. It can not, therefore, be safe to say
that because a name is not found on a muster roll made out in 1861,
that that person was not a member of the regiment November 4, 1862,
when the election took place. They therefore rejected all the muster
rolls offered as evidence of who did and who did not belong to the
respective regiments on the day of election, excepting the following,
viz, Company B, Thirty-second Regiment (p. 200), dated December 8,
1862; Company K, same regiment (p. 203); same date; Naughton's company,
Twenty-eighth Regiment (p. 206), dated September 12, 1862; Company L,
Tenth Cavalry (p. 209), dated October 28, 1862; Company B, Thirty-first
Regiment (p. 212), dated August 28, 1862; and Captain Cain's company,
Tenth Cavalry (p. 292), dated October 31, 1862. All these muster rolls,
made so near the time of the election, were held by the committee to be
prima facie evidence of what persons belonged to the respective
regiments enumerated. So that if the name of a voter was not found upon
these muster rolls it was incumbent upon the party claiming the vote of
such a person as a member of one of these regiments to show that fact.
But all the other muster rolls, bearing date from one year to a year
and a half prior to the day of the election, were not deemed by the
committee safe evidence of membership sufficient to be taken as prima
facie. But all these muster rolls show the age of the soldier when he
enlisted and the time of enlistment, and therefore of age one is as
good evidence as another, and all are admitted as evidence to that
extent, leaving each party at liberty to controvert them by other
evidence.
In accordance with the principles enunciated above the majority
purged the polls of various other regiments.
Another principle was involved in testimony offered by contestant to
show that crews of men working on gunboats at Carondelet, a place 10
miles below St. Louis, had by direction of Mr. Eads, their employer,
been led to vote illegally for Mr. Blair. The committee say:
But although these men set out for the avowed purpose of casting
fraudulent votes, and were furnished with tickets by the foreman of
their employer, and were carried from the poll in one district where
the judge had become too particular for dishonest voters into this
district under the guidance of the employer of Mr. Eads, who
distributed among them votes for Mr. Blair as they went, yet these men
are traced to no poll in St. Louis. Their names are not given, so that
no examination of the poll list will
Sec. 852
enable the committee to detect them. However strong the tendency of
this testimony, it lacks this link, and the committee can not say how
many of them voted, nor at what poll they voted, nor for whom. The
committee have, therefore, rejected no votes from any poll on account
of gunboat men from Carondelet.
Another principle was discussed in connection with certain poll books
rejected by the official canvassers. The committee held as follows:
In the opinion of the committee, all of the polls which were rejected
for want of ``an abstract of votes'' were erroneously rejected. The
abstract is simply a computation or casting up of the votes, not
required by law, and, if erroneously done, to be corrected. The name of
each voter and the person for whom he voted is given in each case, and
the computation left to be made is not only perfectly easy, but is what
is being done all the way through this investigation. The committee
have therefore taken into the count all polls rejected for this reason.
The majority of the committee, acting in accordance with the above
principles, purged the polls, finding a plurality of 49 votes for the
contestant. Therefore they reported resolutions that Mr. Blair was not
elected, and that Mr. Knox was elected.
The minority dissented from the conclusions of the majority,
contending that the evidence failed to overcome the title of the
sitting Member.
On June 10, 1864,\1\ the report was debated, though not at great
length, the debate developing inaccuracies in the minority views.
The resolution declaring Mr. Blair not entitled to the seat was
agreed to, yeas 82, nays 32. The resolution seating the contestant was
then agreed to without division.\2\
852. The election case of Todd v. Jayne, from the Territory of
Dakota, in the Thirty-eighth Congress.
By answering a notice of contest served before the declaration of the
result the sitting Member was held to have waived the informality.
Testimony taken before justices of the peace was admitted, although
the sitting Delegate had protested that they were not legally
authorized and had declined to attend.
The House declined to receive a deposition taken in violation of the
law of 1851, although bearing vitally on the turning point of the
contest.
On May 24, 1864,\3\ the Committee on Elections reported on the
question as to the final right to the seat in the case of Todd v.
Jayne, of Dakota Territory. The question of prima facie right had been
disposed of in a preceding report.
In the question as to final right certain preliminary questions were
passed on by the committee, of such importance that the final decision
may be said to rest on one of them to a large extent.
The result turned on the vote of Kitson County. An affidavit tending
strongly to impeach that vote was presented by sitting Member. The
committee say in regard to that affidavit:
Technical objections were raised at the outset, on both sides, that
the proceedings had not conformed to the statute of 1851 concerning
contested elections. The contestant insisted upon the exclusion
-----------------------------------------------------------------------
\1\ Globe, pp. 2854-2861.
\2\ Journal, p. 781; Globe, p. 2861.
\3\ First session Thirty-eighth Congress, House Report No. 99; 1
Bartlett, p. 555; Rowell's Digest p. 193.
Sec. 852
of the deposition of Joseph L. Buckman (p. 154), because taken after
the time prescribed by the statute for closing testimony. By the
statute, sixty days from December 15, 1862, the time of the answer, is
allowed for taking depositions, which in this case would be February
15, 1863, and they are to be taken in the Territory by some magistrate
named in the statute and resident of the Territory. This deposition was
taken March 11, 1863, in the District of Columbia, before one of the
judges of the orphans' court of this District. The law is explicit,
that, while the House can authorize the taking of depositions after the
expiration of the time fixed by statute, yet without such authority the
evidence must be excluded. The House has heretofore, in another case,
that of Knox v. Blair, instructed the committee to exclude deposition--
that of N. S. Constable, taken in this city under similar
circumstances--and this deposition was therefore excluded.
The minority of the committee call attention to the fact that
technical requirements had been waived in respect to other features of
the case, and say:
Can it be that the House, adhering to the letter of the law as to the
time and officer before whom testimony shall be taken, when the act
itself is only declaratory and does not forbid the taking of testimony
at another time and before another officer, will exclude testimony
which exposes this fraudulent and fictitious Pembina vote, and then
admit the contestant to take his seat under it? Has not every Member at
all acquainted with the Red River country a general knowledge that
there could be no such vote there as has been certified to? Without
this fraudulent vote the contestant has no claim to the seat, as the
report of the majority admits, and not only admits this but shows by
the computation of the majority, as given therein, that the sitting
Member is entitled to retain his seat.
As to the second preliminary question the majority say:
While the statute requires the contestant to serve his notice of
contest upon the sitting Delegate within thirty days after the result
of the election has been declared by the board of canvassers, the
notice in this case was served upon him before the result was declared.
The notice was served November 17, 1862, and the result proclaimed
November 29, 1862. The answer of the sitting Delegate, which was upon
the merits, and without notice of this objection, was served upon the
contestant December 15, 1862. And the committee are of opinion that
this was a defect which the sitting Delegate could waive, and that by
answering after the result had been proclaimed, and within the time
when a new notice of contest could have been served, without availing
himself of the objection and proceeding to take the testimony, he had
waived the right to object to it at the hearing.
The minority objected to this:
At the outset the question arises, Is there any law prescribing the
mode of obtaining evidence in the case of contested elections of
Delegates from Territories? Manifestly not, if the act of February 19,
1851, is to receive a strict construction, for it applies only in terms
to the ``contest of an election of any Member of the House of
Representatives.'' That a Territorial Delegate has no vote, and is not,
strictly speaking, a Member of the House of Representatives, is known
to all. If, however, the act of February 19, 1851, is by analogy to be
held as governing in the contest of a seat by a Territorial Delegate,
the provisions must be complied with. That they were not complied with
by the contestant in this case is admitted by the majority report,
which states, ``that while the statute requires the contestant to serve
his notice of contest upon the sitting Delegate within thirty days
after the result of the election has been declared by the board of
canvassers, the notice in this case was served before the result was
declared.'' The report, however, proceeds to state that ``the committee
are of opinion that this was a defect which the sitting Delegate could
waive, and that by answering after the result had been proclaimed,''
etc., ``he had waived the right,'' etc. Without controverting this
position it is difficult to perceive why, if the contestant is to be
permitted to avail himself of a notice not strictly in accordance with
the statute, the sitting Delegate should not have the like liberality
extended to him in relation to a deposition taken on notice to the
contestant, when the contestant was present listening to the
examination and consenting to an adjournment for the purpose of
completing it.
The third preliminary question is thus disposed of by the majority of
the committee:
The sitting Delegate further objected that the testimony of
contestant was not taken before magistrates authorized by the statute
to take testimony. The depositions appear to have been taken before
Sec. 853
two justices of the peace, residents of the Territory, who are only
authorized to take them when there are none of the other officers
mentioned in the statute in the Territory. The statute requires that
whoever takes the depositions shall be a resident of the Territory, and
the only persons before whom the sitting Delegate claims the
depositions should have been taken were the Chief justice of the
Territory, P. Bliss, and associate justice, J. L. Williams. Of their
residence in the Territory, the evidence is (pp. 15, 19, 21, 27, 37,
82), that their families have never been domiciled in the Territory,
but, since their appointment at Sioux City, in Iowa, their post-office
matter is sent to that city, where they reside, only coming into the
Territory to hold their courts, and then returning to their families in
Sioux City. Judge Bliss, who was in the Territory when the notice to
take the first deposition was given, which was given to take them
before him, ``or before some other person duly qualified to take said
testimony,'' on Friday, the 6th day of January, 1863, writes to the
attorney a note (p. 10), in which he says, ``I will open the
examination and remain as long as I can--at least till Friday
evening.'' The committee were of opinion that the two justices of the
peace, residents of the Territory, were competent to take the
depositions.
Against the above the minority urged:
There is, however, a more serious objection to all the contestant's
testimony. It is all ex parte, and taken before justices of the peace.
By the third section of the act of Congress, the party wishing to take
testimony may apply to ``any judge of any court of the United States,
or to any chancellor, judge, or justice of a court of record of any
State, or to any mayor, recorder, or intendant of any town or city in
which said officers shall reside, within the Congressional district;
``and by a subsequent section, the twenty-third, it is provided that in
case no such magistrate as is by the third section authorized to take
depositions shall reside in the Congressional district, it shall be
lawful to apply to two justices of the peace. In this instance the
contestant gave notice of his intention to take testimony before the
chief justice of the Territory, but subsequently went before two
justices of the peace. The sitting Delegate protested against the right
of the justices of the peace to take the testimony, and never appeared
before them. The contestant seeks to show, by testimony, that Judge
Bliss, the chief justice of the Territory, resided at Sioux City, Iowa,
and not within the Territory of Dakota; but the notice which he gave to
take the testimony states: ``It is my intention to examine witnesses
before Hon. P. Bliss, chief justice of Dakota Territory, the said chief
justice being a resident within and for the Congressional district,
Territory of Dakota, thereby admitting his presence and competency to
act. A copy of said notice is hereto annexed. Besides, the papers show
that Judge Bliss, at the instance of contestant, issued subpoenas for
witnesses, was present at the time the testimony was about to be taken,
and proposed in writing to the contestant to enter upon the
examination. The contestant, however, preferred, contrary to law, to
proceed before two justices of the peace. That Judge Bliss was, in
contemplation of law, a resident of the Territory is manifest from the
fact that he had been in the Territory holding the courts, and was then
present.
853. The case of Todd v. Jayne, continued.
Professional men within the precinct because of work on contract and
not having homes therein were held not to be residents.
It being impossible to ascertain the true vote because of fraud on
the part of the officers, the returns were rejected.
These preliminary questions being determined by the committee, the
questions as to the election itself caused a division of the committee
only as to the vote of Kitson County, which determined the result.
In Yankton County the committee rejected 9 votes, indisputably cast
for the sitting Member, because cast by nonresidents, principally
surveyors employed under contract and leaving the State when the
contract expired, their return depending on new contracts and not on
homes in the Territory. The committee did not deem such residents
within the meaning of the law.
In Bon Homme County the vote had been rejected by the Territorial
canvassers, and the committee approved this rejection. The United
States marshal had arbitrarily excluded from the polls a man who had
been appointed judge; the board
Sec. 853
of election officers had manifestly been constituted to favor fraud,
and when watchers at the polls confronted them with evidence of fraud
they rushed from the poll room, abandoning the election papers to the
crowd, who proceeded to hold a new election.
In Charles Mix County the returns were rejected by the Territorial
canvassers. The committee decided that of the rejected votes 62 should
be allowed to the sitting Delegate and 7 to the contestant. The
rejected votes were cast by Iowa soldiers and half-breeds not entitled
to vote.
At Brule Creek precinct, as admitted by one of the election judges in
his testimony, the judges met on the night preceding the election at a
place not the legal place of election, and received the votes of
persons not qualified voters. They took this box, with the fraudulent
votes in it, to the regular place of election, and there received the
legal votes. A clerk of election who refused to add the fraudulent
votes with the legal ones, resigned and another was put in his place.
The committee say of these returns:
The committee are of opinion that it would be a disgrace to receive a
return of votes from persons assuming to act as judges and guilty of
such practices in office as the testimony and the foregoing unblushing
confessions disclose, and submit whether such ``judges'' have or not
added to their other crimes that of perjury in taking the following
oath, which they have certified that they have taken:
``We do solemnly swear that we will perform the duties of judges
according to law and the best of our ability; that we will studiously
endeavor to prevent fraud and deceit in conducting the same.''
The committee, therefore, reject the entire vote thus returned from
this precinct.
The return of Kitson County was received at the office of the
Territorial secretary, after the canvass had been completed, and was
sufficient to change the result proclaimed after that canvass. The
committee say:
The committee were of opinion that the arrival of these returns in
the secretary's office a few days after the canvass was completed was
not of itself sufficient ground for their rejection. The sitting
Delegate objects to the counting of this return for two reasons. First,
that the vote is fraudulent and fictitious. Second, that the territory
included in the precinct at which this vote was cast ``is situated
wholly in the Indian country; and though within the geographical, it
is, by the act of Congress organizing the Territory of Dakota, without
the political limits of said Territory.''
The objection that the precinct was in the Indian country the
committee find not sustained by law. As to the charge that the vote was
fraudulent and fictitious the committee found it sustained by only one
witness, whose testimony had not been admitted for reasons already
stated. Therefore the committee counted the vote of this county, 125
for contestant and 19 for sitting Member, and thereby found a majority
of 99 votes for the contestant. Accordingly they reported resolutions
that sitting Member was not elected, and that contestant was entitled
to the seat.
On June 10 and 11 \1\ the report was debated at length in the House.
There was a strong feeling that the Kitson County vote would have been
impeached had the excluded testimony been admitted, and the following
substitute amendment was offered to the resolutions of the committee:
That the election in the Territory of Dakota for Delegate was
attended with so much illegality and fraud that neither William Jayne
nor J. B. S. Todd is entitled to a seat in this House as such Delegate,
and the seat of the Delegate from that Territory is declared vacant.
-----------------------------------------------------------------------
\1\ Globe, pp. 2861, 2882-2892.
Sec. 854
This amendment was disagreed to,\1\ yeas 57, nays 66. Then, after
dilatory proceedings, the resolution declaring Mr. Jayne, the sitting
Member, not entitled to the seat was agreed to, yeas 92, nays 1; and
then the resolution seating Mr.Todd, the contestant, was agreed to,
yeas 64, nays 31.
854. The Missouri election case of Lindsay v. Scott in the Thirty-
eighth Congress.
The law of the State requiring a voter, on pain of disqualification,
to take an oath of loyalty, votes cast by unsworn voters were rejected.
Where a State law declared that ``no ballot not numbered shall be
counted,'' the House sustained the rejection of ballots not numbered.
Ballots being regularly numbered and counted and the vote entered on
the poll book the return stood, although the ballots were afterwards
destroyed.
On June 20, 1864,\2\ the Committee on Elections reported in the case
of Lindsay v. Scott, of Missouri. In this case, the committee being
unanimous, the poll was purged by the committee in accordance with the
following conclusions:
The State of Missouri having been torn by civil dissensions incident
to the war, on June 10, 1862, the State convention had adopted an
ordinance prescribing an oath of loyalty as a qualification for voters
and the judges and clerks of all elections. The contestant alleged that
in numerous precincts the oath was not administered. The committee say:
A neglect or refusal to take the oath disqualified the voter by the
express language of the ordinance; and hence wherever it appears that
the election was conducted by the judges without having the oath
administered to the voters, or wherever the voters were permitted to
vote without having first taken the oath, the committee have felt
bound, by the express provisions of the ordinance, to reject all such
votes as illegal and void, no matter for whom they were cast.
The committee state thus a second rule by which they proceeded:
By an act of the general assembly of the State of Missouri, approved
March 23, 1863 (Laws of Missouri, 1863, p. 17), certain amendments were
made to the laws of that State in regard to elections, and among other
things ordering the elections to be by ballot and to continue for one
day only. It also provided that the judges of election should ``cause
to be placed on each ballot the number corresponding with the number of
the voter offering the same'' and that ``no ballot not numbered shall
be counted.'' The contestant in his notice alleges that in several of
the townships and election precincts this provision of the law was
wholly disregarded, and therefore that the votes so cast should be
rejected.
The committee comment on the fact that the statute in this respect is
clear and explicit, expressly prohibiting the counting of such votes by
the judges of elections.
In Cape Girardeau County the county clerk omitted from his abstract
which he certified to the secretary of state the votes of certain
soldiers which had been given viva voce. The clerk certified that he
omitted the votes because he was uncertain as to their legality. The
committee found that the votes were legally cast and counted them.
Contestant objected that the votes of Iron Township, in Iron County,
were illegal because the ballots were destroyed; but as they were
regularly numbered
-----------------------------------------------------------------------
\1\ Journal, p. 790; Globe, p. 2891.
\2\ First session Thirty-eighth Congress, House Report No. 117; 1
Bartlett, p. 569; Rowell's, Digest, p. 195.
Sec. 855
and counted, and the vote indorsed on the poll books before the
destruction of the ballots, the committee declined to reject the votes.
The committee also say:
The sitting Member has raised numerous objections to the sufficiency
of the allegations in contestant's notice, both as to matters of form
and substance and to the admission of testimony under the
specifications, some of which are obviously informal and frivolous; but
the committee have not deemed it important to examine or decide the
points thus made, or to consider the objections raised by the sitting
Member to some of the votes cast for contestant, as the conclusion to
which the committee have come on the case made by the contestant
renders it unnecessary.
Purging the polls in accordance with the principles set forth the
committee found that there still remained to Mr. Scott, the sitting
Member, a plurality of 61 votes. Therefore the committee recommended a
resolution declaring Mr. Scott entitled to the seat.
On June 24,\1\ without debate or division, the House agreed to the
report.
855. The Missouri election case of Boyd v. Kelso in the Thirty-ninth
Congress.
In 1865, in a case wherein sitting Member had, by reason of absence
on military duty, failed to receive notice of contest, the House gave
further time for taking testimony.
A contestee by answering without taking exceptions waives objections
to the sufficiency of the notice of contest.
A second notice of contest served after the expiration of the time
fixed by law was disregarded.
Objection having been made by contestee to evidence on points not put
in issue by contestant's notice, the evidence was rejected.
The contestant must overcome contestee's prima facie right,
invalidate the latter's title, and show himself entitled to the seat.
On December 19, 1865,\2\ Mr. John R. Kelso, of Missouri, rising to a
question of privilege, asked for an extension of time in taking
testimony in the contest for his seat instituted by Mr. S. H. Boyd. Mr.
Kelso explained that in his absence on military duty he had not
received notices of contest, and had failed to take testimony within
the time limit prescribed by the law. On motion of Mr. Henry L. Dawes,
of Massachusetts, the subject was referred to the Committee on
Elections.
On December 20 \3\ the committee reported that they had not examined
the question particularly because there had been an agreement between
the parties. Therefore the committee reported the following resolution,
which was agreed to by the House:
Resolved, That in the matter of the contested-election case of Hon.
Sempronius H. Boyd against Hon. John R. Kelso, it is hereby ordered
that the sitting Member be allowed fifty days from and after the
passage of this resolution for the purpose of taking testimony, and the
contestant, if he choose, thirty days thereafter for the purpose of
taking testimony in reply thereto; and that in all things, except the
extension of time herein prescribed, both parties be required to
conform to the provisions of the statute of February 19, 1851, in
relation to contested elections in this House.
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\1\ Journal, p. 889; Globe, p. 3241.
\2\ First session Thirty-ninth Congress, Journal, p. 88; Globe, p.
81.
\3\ Journal, p. 96; Globe, p. 98.
Sec. 855
On June 25, 1866,\1\ the Committee on Elections reported on the final
right to the seat.
The most definite principles presented in this case arise in relation
to preliminary questions. These are set forth in the statement of the
case in the report:
The election here contested was held on the 8th day of November, A.
D. 1864. It appears that the said Fourth district is composed of some
21 counties. The contestant, on the 9th day of January, A. D. 1865,
served on the sitting Member a notice of intention to contest his right
to the seat as a Representative of the said Fourth Congressional
district, and setting forth the grounds of contest.
The said specifications are very general, vague, and indefinite, but,
so far as can be gathered from them, they raise some objections to the
regularity of the election, and the legality of some of the votes at
some of the election precincts in the counties of Barry, McDonald,
Newton, Jasper, Dade, and Polk, which are included in said district,
but state no objections to the election or the votes cast at the
election precincts in any of the other counties of the district. The
vote, however, of Capt. Stephen Julian's company, of the Second
Regiment Missouri Artillery, stationed at St. Louis, was also objected
to or questioned in said notice.
The sitting Member filed his answer to said notice of contest,
denying the several specifications and allegations of contestant, and
alleging certain objections to the election, and to the legality of the
votes cast for contestant at various precincts in different counties of
the district.
A further formal notice of contest appears * * * purporting to have
been given by the contestant, and accompanied by a certificate of a
deputy sheriff setting forth that he served it on the wife of the
contestee on the 21st day of March, 1865, of which notice, however, no
other proof of service appears, and no notice seems to have been taken
of it by the contestee, and he, on the hearing, objected to its
consideration in the case, it not having been given within the time
prescribed by the act of February, 1851; and also objected to the
first, second, ninth, tenth, eleventh, and twelfth specifications in
the original notice of contest for insufficiency in not specifying with
particularity the grounds of contest, as required by said act. But as
no objection to the sufficiency of the first notice appears to have
been taken in the answer of the contestee, it is probable that,
according to the precedents in such cases, the objection to the
sufficiency of the fast notice, so far as the contestee is concerned,
may be considered to have been waived.
The second notice not having been given in time, and not appearing by
any proof to have been served as required by law had it been given in
time, and no application having been made or leave granted to the
contestant to amend his notice after the expiration of the time fixed
by the law for serving the same on the contestee, it is not properly in
the case, and can not therefore be considered in this investigation;
though, from a casual examination of its contents, the committee think
that if it had been admitted and considered it would not probably have
materially affected the result.
The contestant not having raised any objection in his notice to the
election at any of the precincts in the several counties of the
district, other than in the counties of Barry, McDonald, Newton,
Jasper, Dade, and Polk, any evidence he may have submitted as to the
votes cast at the several election precincts in such other counties is
manifestly irrelevant and inadmissible; and the contestee having also
objected to such evidence on that account, it is not considered in the
case. The evidence, however, is in itself very defective, so that its
rejection can not work any serious prejudice.
As to the merits of the case, the report says:
The sitting Member having the certificate of election, prima facie
has been legally elected, and it is for the contestant to overcome this
prima facie right, invalidate the contestee's right to the seat, and
show himself entitled thereto.
The report thereupon proceeds to analyze the testimony, showing it to
be inadequate to the requirements of the above-mentioned principle.
There was, for instance, no evidence before the committee to show what
votes or returns were included in the final canvass in the office of
the secretary of state of the votes for
-----------------------------------------------------------------------
\1\ House Report No. 88; 2 Bartlett, p. 121; Rowell's Digest, p. 206.
Sec. 856
Representative to Congress in this district. The committee go on to
examine in detail various specifications of the contestant, finding so
much insufficiency in testimony that they came to the conclusion
without dissent, that Mr. Kelso, the sitting Member, was entitled to
his seat.
On June 28,\1\ without debate or division, the resolution reported by
the committee was agreed to.
856. The Michigan election case of Baldwin v. Trowbridge in the
Thirty-ninth Congress.
May a State legislature, in fixing times, etc., for elections,
disregard the requirements of the State constitution?
Extent to which the House, in an election case, should defer to
decision of a State court that a State law is void.
The State legislature, in fixing the place of election, may condition
the place on the movements of soldier voters.
Discussion of the meaning of the word ``legislature'' in the clause
of the Constitution relating to fixing the place, etc., of elections.
On February 5, 1866,\2\ Mr. Glenni W. Scofield, of Pennsylvania, from
the committee on Elections, reported in the case of Baldwin v.
Trowbridge, from Michigan. This case arose out of the following facts:
The constitution of Michigan contained the following provision: ``No
citizen or inhabitant shall be an elector, or entitled to vote at any
election, unless he shall be above the age of 21 years, and has resided
in the State three months, and in the township or ward in which he
offers to vote ten days, next preceding such election.''
A law passed by the Michigan legislature February 5, 1864, provided:
That every white male citizen or inhabitant of this State, of the age
of 21 years, possessing the qualifications named in article 7, section
1, of the constitution of the State of Michigan, in the military
service of the United States or of this State, in the Michigan
regiments, companies, or batteries, shall be entitled to vote at all
the elections authorized by law, as provided in this act, and every
such citizen or inhabitant shall thus be entitled, in the manner herein
prescribed, whether at the time of voting he shall be within the limits
of this State or not.
Under this act many votes were cast by soldiers outside the State. If
these votes were legally counted Mr. Trowbridge was elected and
entitled to his seat. If they were not legally cast and counted, Mr.
Baldwin, who had a majority of the home vote, was entitled to the seat.
The power of the legislature, to act in conflict with the organic law
of the State was derived, if at all, from Article I, section 4, of the
Constitution of the United States:
The times, places, and manner of holding elections for Senators and
Representatives shall be prescribed in each State by the legislature
thereof, etc.
Mr. Scofield, in the report, argues that the word ``legislature'' as
here used does not mean the legislative power, but ``the legislature eo
nomine, as known in the political history of the country,'' since if
the framers of the Constitution had meant
-----------------------------------------------------------------------
\1\ Journal, p. 920; Globe, p. 3460.
\2\ First session Thirty-ninth Congress, Globe, p. 814; 2 Bartlett,
p. 46; Rowell's Digest, p. 200; House Reports Nos. 13 and 14.
Sec. 856
State organic conventions, they would have chosen a word less liable to
misconstruction. The report goes on--
It is also apparent, from the manner in which this word is used in
other parts of the instrument, that its framers recognized a wide
difference between a continuing legislature and a convention
temporarily clothed with power to prescribe fundamental law. Article V
provides that Congress ``shall call a convention for proposing
amendments * * * on application of the legislatures of two-thirds of
the several States.'' Also, that amendments shall be valid when
``ratified by the legislatures of three-fourths of the several States,
or by conventions of three-fourths thereof, as the one or the other
mode of ratification may be proposed by the Congress.'' Article VII
provides that ``the ratification of the conventions of nine States
shall be sufficient for the establishment of this Constitution between
the States so ratifying the same.''
The report calls attention to the fact that the convention closed its
labors with a resolution which still further bears out this idea, as
also is seen by other instances cited in the report:
In Article I, section 2, the words of the Constitution are ``the
electors in each State shall have the qualifications requisite for the
most numerous branch of the State legislature.'' Did anybody ever hear
of a constitutional convention, in the history of this country,
composed of two houses? Article I, section 3, provides that ``the
Senate shall be composed of two Senators from each State, chosen by the
legislature thereof.'' In Article II, section 1, it is said ``each
State shall appoint, in such manner as the legislature thereof may
direct, a number of electors, etc. In section 8 of Article I, ``the
consent of the legislature of a State'' is required before the United
States can purchase places for forts, etc. Again, in Article IV,
section 4, is said that, ``on application of the legislature, or the
executive (when the legislature can not be convened), Congress shall
protect each State against domestic violence.'' It will hardly be
claimed that a constitutional convention could perform the duties thus
conferred upon the legislature; much less that it could forbid the
legislature eo nomine from discharging them after its own dissolution.
But the legislation of Michigan may be sustained as against the
constitution of that State, even if the word legislature is to be taken
in its most enlarged sense. Whatever power the convention of that State
possessed to prescribe the places of holding elections for
Representatives in Congress was derived, not like its other powers,
from the people, but from the Constitution of the United States, and
that, too, because it was a constructive legislature. The power
conferred is a continuing power. It is not used up when once exercised,
but survives the dissolution of the convention. The words of the
Constitution are as potent then as before, and if there is any
legislative body in the State that can be properly called a
legislature, they appertain to it as strongly as to any prior
legislative body. They do not authorize any convention or legislature
to tie the hands of its successors. The people authorize a convention
to do that where they (the people) have power; but certainly the people
of Michigan had no power to enlarge or restrict the language of the
Constitution of the United States. This view of the case entirely
harmonizes what was at first supposed to be a partially adverse
precedent in the case of Shiel v. Thayer, from the State of Oregon.
The report further controverted the position that a question of the
qualification of voters was involved, since the place of holding
elections was not one of the electoral qualifications.
In the course of the debate \1\ Mr. Henry L. Dawes, of Massachusetts,
chairman of the committee, stated that he agreed in the conclusion that
Mr. Trowbridge was entitled to the seat, to which the committee had
arrived, but did not wish to indorse the reasoning of the report. It
seemed to him that the legislature, in fixing the place, must act in
accordance with its organic restrictions. But it did not seem to him
that the law of Michigan was antagonistic to the Constitution, since
the latter
-----------------------------------------------------------------------
\1\ Globe, P. 821.
Sec. 856
instrument nowhere provided that the voter must be personally present
in the township or ward of which he was a resident. The mode and manner
of his depositing his vote might be prescribed by the legislature
without violation of the Constitution.
Mr. S. S. Marshall, of Illinois, submitted minority views, in which
Mr. William Radford, of New York, concurred. The minority views, after
stating the case, say:
The supreme court of Michigan, in a case arising out of the identical
election out of which this contest has arisen (the case of The People
ex rel. Daniel S. Twitchel v. Amos C. Blodgett) have construed this
provision of their constitution to mean that the elector shall be
personally present, in the township in which he resides, on the day of
election, and there in person present his ballot at the place of
voting, and that the act of the legislature of February 5, 1864, ``is
in direct conflict with the constitution, and for this reason void.''
This cue was very thoroughly discussed and considered by the court, the
judges all giving separate opinions, and it seems to me impossible to
read the case without arriving at the same conclusion. This is the
highest and most authoritative exposition of that provision of the
State constitution that can be given. The supreme court of Michigan is
the most authoritative expounder of the constitution and laws of the
State, and all other tribunals, including even the Supreme Court of the
United States itself, are bound to follow and abide by the construction
which the State court has placed upon their own constitution.
In the debate it was contended that this decision of the supreme
court was rendered in the case of a State officer, and had no reference
to the election of members of Congress.
The minority further argue against the definition of ``legislature''
contained in the report:
The ``legislature'' of a State, in its fullest and broadest sense,
signifies that body in which all the legislative powers of a State
reside, and that body is the people themselves, who exercise the
elective franchise, and upon their power of legislation there is no
limitation or restriction, except such as may be found in the Federal
Constitution, or such as they may themselves provide by the organic law
of the State. When they assemble in convention, which in large
communities is from necessity done by the agency of delegates or
representatives of the people, the whole legislative power of the State
is then vested in such convention. It can abolish, or in whole or in
part abrogate, the proceedings of ``the general assembly'' or
``legislative council'' or ``general court,'' or whatever may be the
designation of that subordinate body in which is usually lodged a
portion or residuum of the legislative power of a State. Indeed, the
people of a State might provide for the periodical assembling of their
convention, which would exercise and perform all legislative powers and
duties without the intervention of that body of limited and restricted
powers, popularly called a ``legislature,'' but which in the
constitutions of most of the States is called by some other name. It is
variously designated a ``general assembly,'' a ``legislative council,''
a ``general court,'' and the like, and is nowhere understood to hold in
its grasp all the legislative powers of a State. * * * This secondary
or subordinate body is the creature of the organic law of the State,
owes its existence to it, and can rightly do nothing in contravention
of its provisions. * * * Indeed, from the adoption of the Federal
Constitution until this time, it was never before contended, as far as
I am informed, that the clause in question conferred upon that body in
a State in which wan reposed that residuum of legislative power, not
exercised by the State convention, power to act utterly independent of,
and in utter disregard of, the State constitution, by virtue of which
alone it has any existence. The people have everywhere supposed that
they had the power to fix a limitation upon the action of their
legislature, in determining the times, places, and manner of holding
elections for all offices.
The minority views further cite the cases of Shiel v. Thayer and
Farlee v. Runk, in support of the contention.
Sec. 857
The minority views further assail the law of Michigan in its
relations to the Federal Constitution:
But the act of the Michigan legislature (by virtue of which the votes
were cast outside of the State that it is proposed to count for the
sitting member) does not prescribe the place or places of voting, and
consequently the votes were not cast in pursuance of any competent
authority. The provision of said statute is as follows:
``Sec. 7. At the elections herein provided for a poll shall be opened
at every place, whether within or without the State, where a regiment,
battalion, battery, or company of Michigan soldiers may be found or
stationed, and at such election all persons may vote who are thereto
entitled by law and by the provisions of this act.''
Now, will anyone pretend that that prescribes a place or places of
election? What place or places? Would a law which provided that any
elector of Michigan should vote at any place, within or without the
State, where he might happen to be on the day of the election,
prescribe a place of voting? This is too clear, I submit with all
deference, to admit of argument. If Congress or the legislature can
prescribe places of election outside of the State, I insist that the
places must be named in the act, and that it is no compliance with the
Constitution to provide that a man, or company of men, may vote at any
place where they may happen to be on the day of election, and that such
a law does not prescribe a place of election at all.
Therefore the minority concluded that Mr. Baldwin had been duly
elected and was entitled to the seat.
The question was debated at length and decided on February 13 and
14.\1\ The motion to substitute the resolutions of the minority for
that of the majority declaring Mr. Trowbridge entitled to the seat, was
decided in the negative, yeas 30, nays 108. Then the majority
resolution was agreed to without division.
857. The Indiana election case of Washburn v. Voorhees, in the
Thirty-ninth Congress.
As to the authority of a mayor to administer oaths in taking
testimony under the law of 1851.
A discrepancy between the votes cast and the returns and evidence of
tampering with the ballot box justified rejection of the poll.
Returns being rejected, the vote may be proved aliunde.
On February 19, 1866,\2\ the Committee of Elections reported in the
case of Washburn v. Voorhees, of Indiana.
At the outset in this case a preliminary question was raised by the
sitting Member, who alleged that contestant's testimony had not been
taken before a person authorized to take the same. The report says:
It was taken before Albert Lange, mayor of the city of Terre Haute,
in the county of Vigo, in said district, but was not taken in the city
of Terre Haute, but in the towns of Sullivan, Sullivan County,
Cloverdale, Putnam County, Carlisle, Sullivan County, and Lockport,
Riley Township, Vigo County. The statute of the United States under
which these proceedings are conducted contains (Stat. L., vol. 9, p.
568) the following provision:
``That when any such contestant or returned Member shall be desirous
of obtaining testimony respecting such election, it shall be lawful for
him to make application to any judge of any court of the United States,
or to any chancellor, judge, or justice of a court of record of any
State, or to any mayor, recorder, or intendant of any town or city in
which said officer shall reside, within the Congressional district in
which such contested election was held, who shall thereupon issue his
writ of subpoena. * * *''
-----------------------------------------------------------------------
\1\ Journal, pp. 268, 272; Globe, pp. 814, 839-845.
\2\ First session Thirty-ninth Congress, House Report No. 18; 2
Bartlett, p. 54.
Sec. 857
But the statutes of Indiana confer authority to administer oaths upon
a mayor of a city only within the city of which he is mayor; and it is
contended by the sitting Member that the oath administered by the
magistrate in taking these depositions was administered by virtue of
his office of mayor, and therefore when administered outside of the
city of Terre Haute was administered without authority. But the
committee were of opinion that the authority to take these depositions
was derived, not from the statutes of Indiana, but from the statute of
the United States already cited, the mayor of a city being one of the
persons designated in that statute to take such depositions, and that
he would have been authorized as such designated person to take these
depositions had the statutes of Indiana conferred upon him no power to
administer oaths. Indeed, the power to administer oaths within their
respective cities was not conferred by the statutes of Indiana at all
upon mayors till the year 1861. Yet during all the time since the
passage of the United States act of 1851, before cited, the mayor of
any city within the district has been a person designated to take
depositions in a case of contested election. The committee, therefore,
denied the motion to reject the testimony.
The minority in their views dissented briefly from this ruling. Later
in the debate \1\ Mr. S. S. Marshall, of Illinois, who presented the
minority views, insisted that the law of 1851, by giving authority to a
mayor in the ``city in which said officer shall reside'' to administer
oaths, circumscribed the authority of the mayor of Terre Haute as
effectually as did the statutes of Indiana.
As to the merits of the case, it appeared that in the eight counties
of the district the official majority for Mr. Voorhees, the sitting
Member, was 534.
The issue was joined on the polls of four precincts, in three
counties, where contestant alleged that the ballots were tampered with
after they were cast and before they were counted. The precincts were:
Hamilton: In this township the official return gave Mr. Voorhees, the
sitting Member, 498 votes and Mr. Washburn 143. The contestant asked
that the return be set aside as ``so tainted with fraud that the truth
can not be deduced therefrom,'' alleging that the ballot box had been
tampered with so that the return did not state the true poll. Two kinds
of evidence were offered in support:
First, to show how many voters actually cast their votes at this
precinct for the contestant; and, secondly, evidence tending to show an
actual tampering with the ballot box after the close of the polls and
before the count was completed. The evidence satisfies the committee
that 170 men at least voted for the contestant at this precinct. One
hundred and sixty-four witnesses testified to their own votes for him,
and as to the remaining 6 not present, the testimony of witnesses that
they knew the vote of each to be also for the contestant left the
committee entirely satisfied that this number at least had so voted.
There was testimony tending to the same result as to several others,
but not sufficiently positive to satisfy the committee. Here is thus
shown a discrepancy between the official return for the contestant and
the proof of the vote actually cast for him at this precinct alone of
27 votes. There was no attempt to show the discrepancy between the vote
actually cast for the sitting Member and the vote returned for him, nor
was any attempt on the part of the sitting Member made to explain this
discrepancy in the vote for the contestant.
As to the tampering with the ballot box, the contestant showed that
his friends had been denied representation on the board of election
officers; that the board had adjourned for supper, leaving the partly
counted ballots in the box, those counted being strung on a string and
laid on top of the uncounted ballots; that the contents of the box,
which was left without a custodian, was found disarranged when they
returned, the counted ballots being beneath the others, and finally,
that the election
-----------------------------------------------------------------------
\1\ Globe, p. 992.
Sec. 858
officers, in a published card, admitted that the box must have been
opened and the ballots handled in their absence. The report says that
these facts:
All compel to the conviction that ``the truth can not be deduced from
this return,'' and it is accordingly rejected.
But the rejection of a return does not necessarily leave the votes
actually cast at a precinct uncounted. It only declares that the return
having been shown to be false shall not be taken as true, and the
parties are thrown back upon such other evidence as is in their power
to show how many voted and for whom, so that the entire vote, if
sufficient pains be taken and the means are at hand, may be shown, and
not a single one be lost, notwithstanding the falsity of the return.
(See Blair v. Barrett, Bartlett's Contested Election Cases, pp. 313,
321; Clark v. Hall, ibid., 215.) It was proved, as has already been
stated, that 170 votes were cast at this precinct for Mr. Washburn.
There was also the testimony of four persons that they voted for Mr.
Voorhees.
In the course of the debate \1\ this principle that a return having
been set aside, it was allowable to show aliunde the real state of the
vote was contested, and Mr. Henry L. Dawes, of Massachusetts, chairman
of the Elections Committee, reenforced the position of the report by
citing the case of Knox v. Blair in the House and the cases of Reed v.
Kneass and Mann v. Cassidy in the courts.
The minority views assailed the conclusion as to Hamilton Township by
assailing the testimony as to the number of votes received by
contestant. Twenty men who swore they voted for contestant could not
themselves write their own names. One man's vote was not sworn to
himself, but by another person. The voting was by ballot, and ignorant
men might be mistaken as to the vote they actually cast, and a person
who testified as to another's vote was especially liable to be
deceived.
858. The case of Washburn v. Voorhees, continued.
Discussion of the kind of evidence required to prove aliunde a vote
at a precinct whereof the returns are rejected.
As to the competency of a voter as a witness to prove for whom he
cast his ballot.
In a simple case of discrepancy between the vote returned and the
vote proven by testimony of voters, the return was corrected, not
rejected.
The election officers being shown to be unreliable so that the truth
is not deducible from their returns, the returns are rejected.
Cloverdale: The proceedings were similar to those in the case of
Hamilton. The votes were not counted until the day after election. The
ballot box was kept on the night preceding the count in the house of a
friend of the inspector. That house was visited during the night by a
man named Scott, a friend of the sitting Member. The report says as to
Scott's visit:
The owner of the house testified that he did not know at what time he
came, what he came for, and what he did. And his purpose and business,
as well as the success which attended it, only appear from the
testimony of a witness who overheard him afterwards relate it. But this
was hearsay evidence, which the committee rejected. The case against
this ballot box therefore rests upon the great discrepancy between the
return (58) and the number (91) proved to have voted for Mr. Washburn,
the temptation in the close vote in the county, the opportunity for
tampering with the ballot box during the night, and the suspicious
visitation of Scott from the county seat during the night, together
with such inferences as it is fair to draw from the fact that no
witness is contradicted, no testimony is controverted, no suspicious
-----------------------------------------------------------------------
\1\ Globe, pp. 969, 970.
Sec. 858
circumstance explained, so easy of explanation by the calling of Scott
or the inspector, if the truth permitted it. But as the result to which
the committee arrived upon the whole case, as hereafter stated, would
not in any aspect be changed, whether this return be rejected or
corrected, they did not determine to reject it entirely, however much
confidence in it must be shaken in every fair mind by the evidence here
adduced. They, instead, gave the contestant the benefit of the
discrepancy proved--viz, 33 votes.
The minority attack the testimony as to this township, showing that
10 persons who swore to their votes for contestant could not write
their own names, and that the votes of 12 others were testified to by
other persons, the voters themselves not being produced and sworn. The
minority condemn this secondary evidence as weak and unsatisfactory.
Jefferson: The report says:
The official return from this township was for Mr. Voorhees, 236
votes; for Mr. Washburn, 24 votes. The evidence relied on to show fraud
in this return consists wholly in a discrepancy proved between the vote
actually cast and that returned for the contestant. It is shown in this
record, by the testimony of the voters themselves and those who knew
how others absent voted, that 36 instead of 24, the returned number,
voted for Mr. Washburn. There was no other testimony to show fraud in
this ballot box as the testimony was left by the parties. The committee
had the evidence furnished them of correcting all the errors shown,
however that might have arisen. They therefore did not reject but
corrected this return, giving to the contestant the benefit of the 12
votes here proved and not counted.
The minority make the same criticism of the testimony as in the two
preceding cases.
Riley: In this township the testimony showed 108 persons who voted
for contestant, while the official return gave him only 88. In addition
it was shown that on the day of the voting, during the noon
adjournment, the ballot box was taken to the inspector's home and
placed in a room adjoining the dining room. The inspector went into
this room alone after dinner, remaining there about fifteen minutes.
The next morning the servant found ``a quantity of republican votes''
under the carpet. When the votes in the ballot box were counted a
discrepancy between the total and the tally paper was rectified by
counting loose votes off the table, to the number of four or five. The
sitting Member neither explained nor counteracted the above testimony.
Therefore the committee were ``compelled to the conclusion that this
box also had been opened and votes, no one could tell how many,
abstracted therefrom, and that other votes never in the box had been
counted, no one could tell for whom, and consequently there existed
fraud in this return to such a degree that the truth could not be
deduced therefrom. They therefore rejected it. One hundred and eight
persons, as before stated, were proved to have voted at this precinct
for the contestant, and were counted for him by the committee.''
The minority attack the evidence in this case, as in the other
precincts.
The majority report, made by the chairman of the committee, Mr. Henry
L. Dawes, of Massachusetts, gives this argument as to the principle of
law which should govern the disposition of the case:
There was little dispute before the committee as to the law which
should govern this case. It is laid down as a general principle by
Cushing, in his treatise on ``The law and Practice of Legislative
Assemblies,'' page 72, that ``if returning officers act in so illegal
or arbitrary manner as to injure the freedom of election, the whole
proceedings will be void.'' In a late case in the courts of law--that
of Mann v. Cassidy, for the office of district attorney in the city of
Philadelphia--the court, in giving its opinion, says: ``As the case now
stands before us, we should be derelict in our duty did we not
unhesitatingly express our conviction that the officers in the election
divisions to which we have referred, in the receipt
Sec. 859
and recording of votes, are so utterly and entirely unreliable that the
truth can not be deduced from any records or returns made by them in
relation thereto.'' * * * ``The entire proceedings were so tarnished by
the fraudulent conduct of the officers charged with the performance of
the most solemn and responsible duties that it would have been not only
abundantly justified, but it would have been our plain duty to throw
out the returns of every division to which we have referred.''
The same doctrine has been repeatedly laid down by Committees on
Elections in the House of Representatives. (See Blair v. Barrett,
Bartlett Contested Elections, p. 308; Knox v. Blair, ibid, p. 520, and
cases there cited. See also Kneass's case, Parsons's Select Cases, p.
553, and Howard v. Cooper, Bartlett, p. 275.) Indeed, the rule laid
down in the latter case at page 526 was accepted by both parties as the
law which should govern this case, and they took issue upon the facts.
The rule is in these words:
``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.''
Indeed, the proposition is too plain to admit of dispute. To hold as
true that which is so false and fraudulent that the truth can not be
deduced therefrom is to hold to an absurdity. The rule here laid down
is none other than the postulate that that which is false can not be
true. In adopting this rule the committee do not lose sight, however,
of the danger which may attend its application. Wholesome and salutary,
not less than necessary, in its proper use, it is extremely liable to
abuse. Heated partisanship and blind prejudice, as well as indifferent
investigation, may under its cover work great injustice. It is not to
be adopted if it can be avoided. No investigation should be spared that
would reach the truth without a resort to it. But it is not to be
forgotten or omitted if the case calls for its application. If the
fraud be clearly shown to exist to such an extent as to satisfy the
mind that the return does not show the truth, and no evidence is
furnished by either party to a contest, and no investigation of the
committee enable them to deduce the truth therefrom, then no
alternative is left but to reject such a return. To use it under such a
state of facts is to use as true what is shown to be false.
The report also comments on the loose provisions of the Indiana law,
which permitted the ballot box to be taken about without careful
custody before the count.
The minority generally criticised the evidence of the contestant as
unreliable or ``hearsay,'' and urged that fraud should be actually
proved, and not be presumed from mere suspicious circumstances.
The majority of the committee, in conclusion, found a majority of at
least 52 for the contestant on the least favorable construction of law.
The report was debated in the House on February 21 and 23,\1\ when
the House, by a vote of yeas 30, nays 96, disagreed to an amendment
declaring Mr. Voorhees, the sitting Member, elected and entitled to his
seat. The resolution of the majority declaring him not elected and not
entitled to the seat was then agreed to without division.
The resolution declaring Mr. Washburn entitled to the seat was agreed
to--yeas 87, nays 36.
859. The New York election case of Dodge v. Brooks in the Thirty-
ninth Congress.
The Elections Committee may consider a case, although the pleadings
do not all meet the requirements of the law as to specifications.
The allegation that ``sundry'' disqualified persons in the district
voted for contestee was permitted in a notice of contest, although
criticised.
Omission to specify definitely in the notice of contest a district
alleged to be illegally constituted was not held fatal.
-----------------------------------------------------------------------
\1\ Journal, pp. 318, 322; Globe, pp. 967, 991-1005.
Sec. 859
On March 26, 1866,\1\ Mr. Henry L. Dawes, of Massachusetts, from the
Committee on Elections, reported in the case of Dodge v. Brooks, from
New York.
At the outset the report raises a question of pleading--
The allegations of contest are long, and some of them very vague and
uncertain, conforming in no sense to the provisions of the statute
requiring a contestant to ``specify particularly the grounds upon which
he relies in the contest.'' The answer of the sitting Member, pages 1
to 5, is quite as vague and uncertain.
The committee, however, find four precincts as to which they
conclude--
In the opinion of the committee, there is contained in the several
allegations of the contestant respecting these four precincts a
distinct allegation of fraud in the election and error in the return
sufficiently specific to require an answer from the sitting Member and
to form the basis of a fair trial of the facts involved in the issues
thus made up.
[The allegations for these four precincts are given below in
connection with the examination of the precincts.]
The minority criticised in their views the specifications as to one
of the four precincts--the seventh of the Twenty-first Ward--saying:
The allegation here is--
``That sundry persons voted for Mr. Brooks who were not legal voters
or residents in the district, viz, one hundred and upward.''
The act of Congress (first section, statute of 1851) regulating
notice as to the contest of election, reads, in conclusion, thus:
``And in such notice shall specify particularly the grounds upon
which he, the contestant, relies in the contest.''
The sitting Member at the start protested against the illegality of
such a notice and argued throughout that its generality was not only in
violation of the statute, but of such a nature that it could not be
traversed, save by a denial as ``sundry'' broad as the sundries
alleged; thus substituting in lieu of a plea ``a stump speech on both
sides.'' The object of the act of Congress forbidding such sundry
generalities, and prescribing therefor a particularity, was to prevent
a surprise upon the sitting Member (Leib's case, C. T. E., p. 165) and
not to give uneasiness to a sitting Member upon slight grounds
(Varnum's case, C. T. E., p. 272). Courts acting upon contested
elections require the parties complaining to specify, because otherwise
they would be converted into a mere election board (Littell v. Robbins,
C. T. E., Bartlett, 138). It is obvious that in a contested case like
this, where the contestant is a man of immense wealth, who it is proven
has lavished large sums illegally upon the election, a sitting Member,
unless equally wealthy, has no chance of meeting him in a contest, if,
after the election, the election can be gone over again under some of
the forms and protection of the State law, under the pretense of such a
``sundry'' notice as to sundry persons, ``one hundred and upward.'' The
Committee of Elections, and through their chairman, Mr. Dawes (Kline v.
Verre, Bartlett, p. 383), is emphatically committed not only against
these generalities, but against this particular word ``sundries'' in
the notice.
As to the fifteenth district of the Eighteenth Ward the minority say:
The twelfth allegation of the contestant is--
``That the fifteenth district was not legally created and established
(with a general averment of frauds).''
But not specifying the fifteenth district of the Eighteenth Ward, and
thus leaving the sitting Member to guess that was the district meant.
In all the other allegations of the contestant the ward where the
district is contested is specified. Objection was taken to this at the
start (B., 3) and persisted in throughout, and the sitting Member did
not know what district was meant till contestant, a very few days
before the closing of the testimony, disclosed what he meant.
-----------------------------------------------------------------------
\1\ First session Thirty-ninth Congress, House Report No. 41; 2
Bartlett, p. 78; Rowell's Digest, p. 203.
Sec. 860
860. The case of Dodge v. Brooks, continued.
Testimony taken without the notice required by the law of 1851 was
excluded.
Hearsay testimony is not admitted in the determination of an election
case.
Where an election return is so tainted with fraud that the truth can
not be deduced therefrom, the same must be set aside.
As to the merits of the case, it appeared that the official return
gave the sitting Member 8,583 votes, the contestant 8,435, and a third
candidate, Thomas J. Barr, 4,544 votes. Thus Mr. Brooks was on the face
of the returns elected by a plurality of 148 votes.
As this election turned very largely on the question as to how far
violations of a registry law should be allowed to have weight in
nullifying an election, the committee explain at length the registry
law of New York:
The law of New York under which this election was held required a
previous register of all the votes in each precinct, and, with one
exception, based on particular and specific proof, no one could
lawfully vote whose name was not found when he came to the polls upon
the register, together with his street and number, if he had any. To
effect this register the statute required the appointment annually, in
each election district, by the board of supervisors, of ``three
inspectors, to be known as the board of registry for the election
districts in which they are appointed; such inspectors to hold their
offices for one year, and to be residents and voters in the district in
which they are so appointed.'' These inspectors are required to meet
annually, ``at the place designated for holding the poll of said
election,'' on Tuesday, three weeks preceding the general election, and
organize themselves as a board for the purpose of registering the names
of the legal voters of such district; choose one of their number as
chairman; swear each other into office; appoint a clerk, if necessary,
who shall take the oath required by law of clerks of the polls or of
elections; and shall have power to continue in session, for the
purposes of this meeting, viz, the making of said list, for two days if
at the annual election next prior to said meeting the number of voters
in the district of which they are inspectors exceed four hundred. This
board is at this meeting to make a list of all persons qualified and
entitled to vote at the ensuing election in the election district of
which they are inspectors, which, when completed, shall constitute and
be known as the registry of electors in said district. The list is to
contain the names, alphabetically arranged in one column; ``the
residence by number of the dwelling, if there be any number; and the
name of the street or other location of the dwelling place of each
person.'' It is made out, in the first place, by putting upon it the
names of all persons residing in their election districts whose names
appear on the poll list kept in said district at the last preceding
general election, taken from the copy of that list required by law to
be deposited after such election with the county clerk. In case of the
formation of a new election district since the last election, the list
is to be made up by taking from the said poll list of the old district
of which the new one formed a part the names of those on the same
entitled to vote in the new district. The list is to be completed, as
far as practicable, on the day of meeting; four copies are to be made
and certified to be, as far as known to them, a true list of the voters
in said district. Within two days the original from which the four
copies are taken, together with the old list taken from the county
clerk's office, shall be placed by said inspectors in said office. One
of the certified copies shall be, immediately after its completion,
posted in some conspicuous place in the room in which said meeting
shall be held; that is, in the room designated for holding the
election, accessible to any elector who may desire to examine or copy
the same. The other three copies are to be kept for future use by the
three inspectors. This closes the first duty of the board of registers.
A further duty is also required of them by law, and that is to meet
again on the Tuesday week preceding the day of general election in
their respective election districts, ``at the place designated for
holding the polls of election, for the purpose of revising, correcting,
and completing said list,'' at 8 o'clock in the morning, and remain in
session till 9 o'clock in the evening of
Sec. 860
that day and the day following, in open session, where every legal
voter in said district shall be entitled to be heard by said inspectors
in relation to corrections or additions to said register. One of said
copies is to be used by the registers in making the corrections and
additions.
The law further provides for copies of the registry list for use at
the polls, and then contains a provision explained as follows in the
report:
No person can vote at the election if his name is not upon the
register thus prepared, unless he shall furnish to the board of
inspectors his affidavit giving his reasons for not appearing on the
day for correcting the alphabetical list, and also proves by the oath
of a householder of the district that he knows such person to be an
inhabitant of the district, giving his residence within the district.
Any person whose name is on the register may be challenged, and an
examination into his qualifications shall then and there be had, such
examination being conducted in a manner prescribed by law, which need
not here be set out.
This provision was considered as having an essential bearing on the
case and in the House during the debate \1\ the position was taken that
the result of the election might not be set aside because of the
informality in the preliminary registration, which, by its own terms,
was not conclusive on the rights of the voter. It was admitted on
behalf of the committee that a fraudulent registry was not conclusive
of itself, but was one of the steps in the proof that the poll was
fatally defective.
Passing to the attacked precincts:
Fifteenth district of the Eighteenth Ward: The direct allegations of
the contestant touching this district are as follows:
That the fifteenth district was not legally created and established;
that it was not known to bona fide residents of the district; that the
inspectors of election themselves ascertained the same only by
persistent inquiry on the morning of election day; that the register
was fraudulently and irregularly filled with the names of your
partisans, most of whom do not reside in the district; that the
majority of the names therein were copied from lists handed in by a
barkeeper on the premises, an ardent Democrat; that the clerk who acted
for the board of registry was neither sworn nor appointed; that the
district, only a portion of the original twelfth district from which it
was separated, gave more votes than the whole of the twelfth district
at the election last year; that the population of the district had not
during the twelve-month increased materially; that of these votes then
cast for you one-third and upward were given by parties not qualified
to vote.
And the general allegation is in these words:
That other irregularities, defects, and illegalities were permitted
or occurred in conducting said election, whereby my rights as a
candidate were prejudiced.
The majority of the committee were satisfied from the testimony that
the allegations were sustained, although they found it necessary to
exclude the testimony of contestant's principal witness, named Dean,
because the sitting Member objected that the ten days' notice required
by law for the taking of this deposition had not been given.
It appeared that the witness's name was omitted from the notice by a
clerical error; but the committee declined to admit the testimony.
The contestant then sought to prove the same thing by another witness
who had obtained his knowledge of the fact from Dean himself. This was
objected to by the sitting Member as hearsay testimony, and the
objection was sustained by the committee.
-----------------------------------------------------------------------
\1\ Record, pp. 1748, 1791, 1814.
Sec. 860
The committee reached this conclusion:
The committee are of the opinion that there was no registry at this
district; that neither of the persons appointed as registers was
competent to hold the office; that the man acting as clerk acted
without authority; that the mode of making up the registry itself was a
fraud upon the registry law, and in no manner a compliance with its
provisions; that the use of such registry at the polls as a guide to
the inspectors of election contributed directly to the polling of
fraudulent votes, and that the large and unaccounted for increase of
votes at this poll is directly attributed to these departures from and
violations of plain provisions of law, and that to accept the result of
such poll so taken and so counted as the true account of legal votes
only, is to sanction most inexcusable violations of important
provisions of law, essential to the purity of the ballot box. The
committee are therefore of the opinion that this return falls within
the principle found in cases heretofore adjudicated and which was laid
down in the case of Washburn v. Voorhees, lately sanctioned by this
House, namely: ``Where an election return is so tainted with fraud that
the truth can not be deduced therefrom, the same must be set aside.''
The committee are, however, of the opinion that it was competent for
either contestant or sitting Member to prove the casting of legal votes
at this poll, even without a register; but, in such cases, the voter
must make special proof of his qualification to vote in a manner
particularly pointed out in the statute; and that it would have been
the duty of the committee to have counted all votes so proven, but that
no presumption of the legality of any vote would arise from any of the
proceedings or returns founded upon so illegal and fraudulent
transactions as have been here shown to exist. No proof of any such
votes was offered by either contestant or sitting Member; nor was it
claimed by either that this provision of law was complied with; but, on
the other hand, it was totally disregarded. The statute of New York is
express, that no vote shall be received except after a compliance with
these provisions. For the committee to count votes thus cast would be
for them to set up a poll in defiance of the statute provisions of the
State, as well as in disregard of well-established precedents in this
House. On the other hand, in conformity with those statutes and
precedents, they have set aside this return altogether as fraudulent
and false, as well as in conflict with express provisions of law.
The minority in their views contend that the committee erred in
throwing out the whole precinct when only a portion of it was impeached
by contestant's testimony; that the registration officers were officers
de facto; that a majority of the registrars and inspectors of election
belonged to the party of the contestant; and that there had been
bribery in behalf of the contestant.
As the throwing out of this precinct was of itself sufficient to
change the official result and give a plurality to contestant, the
principles and facts in this connection were examined at length in the
debate. Whether the action of the registry officials was in law part of
the election, whether votes legally cast should be thrown out in the
rejection of the whole poll, were questions considered at length, and
were made the subject of a vote in the final decision.
Seventh district of the Twenty-first Ward: In this ward the registry
seemed to the committee to be proven to be fraudulent, and the vote
itself showed a suspicious increase over the vote of former years,
although the places of residence had rather diminished than increased.
The registry list was shown to contain large numbers of fraudulent
names, on which persons not residents of the precinct were allowed to
vote. The principal witness for the contestant was one of those who
committed the fraud, and as particeps criminis was admitted by the
committee to be a poor witness; but his testimony was corroborated by
others to the satisfaction of the majority, who concluded as to the
precinct:
It will be observed that the whole poll for Member of Congress in
this district was only 389, and of this number the committee are of
opinion that 116, at least, are fraudulent. There are no means of
determining for whom these fraudulent votes were cast, beyond the 30
which is the number one of the
Sec. 861
witnesses testified that he was certain he succeeded himself in getting
to vote for the sitting Member, and beyond the further fact that one at
least of the parties most actively engaged in the affair, at whose shop
the election was held, and who had the greatest facility for carrying
it out, testified that he was laboring in the interest of the sitting
Member; still, 86 of these fraudulent voters can not by any safe
evidence be charged to the count for either of the three candidates.
They are, however, in the count, as well as 30 traced to the sitting
Member, and must have been counted for one of the three. What is the
duty of the committee and the House with such a return? It must stand
as it is, or be set aside altogether, for the means are not at hand by
which the return can be purged of the fraud. Thirty might be taken from
the account for the sitting Member, but 86 as fraudulent would still be
left, and the return thus corrected would contain in it one vote in
every four a fraudulent one.
The committee see no alternative but to accept the return and thus
sanction the fraud, or set it aside altogether. They can not doubt that
the latter course comes within the precedents of former Congresses and
of this committee and of the present House, and they therefore reject
the return altogether.
The minority attack the testimony offered by the contestant as
unreliable; and that he had failed to call the registrars, a majority
of whom belonged to the contestant's party.
In the debate, Mr. Dawes discussed \1\ the disposition of a poll
where one in four votes was shown to be fraudulent, but where it was
impossible to show for whom the fraudulent votes were cast. The
committee were not strenuous for casting out the whole poll, since it
did not change the result.
861. The case of Dodge v. Brooks, continued.
While conduct of election officers may justify their punishment for
misdemeanor, it may not justify rejection of the returns made by them.
Testimony as to statement of a voter a considerable time after the
act of voting was not admitted to prove how he voted.
An invalid registry, election officers improperly appointed, large
and unexplained increase of the returned vote, and inexcusable
violations of law justified rejection of the return.
Thirteenth district of the Eighteenth Ward: In respect to this
district the contestant alleged:
That in the thirteenth district of the Eighteenth Ward the voting was
of such a grossly fraudulent character as to involve all concerned in
it, either in participation or passive permission, and to render it
impossible to sift and purge the poll; that one of the inspectors,
already a partisan of yours, was bribed to break every law intended to
preserve the purity of the ballot box to accomplish your election; that
this said inspector exchanged places with another partisan of yours
who, unsworn, acted as inspector; that another partisan of yours,
unsworn and unappointed, acted as poll clerk; that one of the
inspectors snatched Republican ballots from the hands of his associates
and changed them to Democratic amid the applause of disorderly
sympathizers in the polling room; that he refused to receive divers
votes intended for me, and all soldier votes, menacing with oaths and
imprecations those who offered them, so that his threats and those of
his sympathizers prevented, after a certain hour of the day, any
citizens from offering soldiers' votes; that during the day persistent
attempts were made to bribe to infidelity to his trust one of the
Republican inspectors; that the same inspector was, on the evening at
the close of the election day, for his fidelity, assaulted, struck
down, and grievously injured; that in canvassing the votes the greatest
frauds were perpetrated, partisans of yours unsworn acted as
canvassers, double votes were counted as two each for you, incorrect
ballots were counted as correct, and when neither poll list, tally, nor
ballots agreed, two or more of your partisans rushed within the
inclosure, and with the pen and pencil labored successfully to conceal
and correct the same after the Republican canvassers had, under their
threats, withdrawn; then in this same district sundry persons were
permitted to vote once for you, and others were permitted to vote
twice, who were not qualified voters, to wit, 200 and upward.
-----------------------------------------------------------------------
\1\ Globe, p. 1751.
Sec. 861
The committee, after examining the testimony, concluded that it did
not show, beyond a reasonable doubt, that any actual fraud was
committed, and that the conduct of the election officers, while it
might justify their punishment for misdemeanor, did not justify the
rejection of the poll.
Third district of the Twenty-first Ward: The contestant alleged:
That in the third district of the Twenty-first Ward 188 votes were
cast for me, 137 for you, and 206 for Thomas J. Barr; but that, through
the fraud or negligence of the canvassers, the votes correctly counted
were incorrectly credited and entered upon one of the returns; that the
other correct return was lost from the office of the county clerk; that
under threats and intimidations on the part of your agents, and a writ
of mandamus issued on motion of your attorney, after the board of
county canvassers had been already a week in session, the board of
canvassers for the district was forced to sign, and file a return with
the county clerk, the duplicate copy of that in the hands of the
supervisors of the county.
The committee were of opinion that this allegation permitted only of
proof that there was error in the returns. Suspicious circumstances
attended the making of the returns, and the contestant attempted to
show the fraud by proving individual votes. The report says:
From a careful examination of the testimony offered, to prove for
whom voters cast their votes, it appears that several of the 159
claimed by the contestant to be proved to have cast their votes for
him, 13 at least are so proved only by proving the statements of the
voter made to third persons, not at the time he cast his vote, but
about the time the deposition was taken, which was four months after
the election. The committee are of opinion that no precedent can be
found for receiving such testimony, and they decline to recommend one.
This reduces the discrepancy between the return and the number proved
to 9 votes, admitting that there can be no doubt as to the proof in
relation to the vote of each one of the remaining 146.
Therefore the committee, considering the liability to mistakes after
so long a time, did not feel justified in disturbing the returns by
adding the nine votes.
The majority of the committee therefore found that the contestant had
been elected, and was entitled to the seat.
The report was debated at length from the 3d to the 6th of April,\1\
and on the latter day the question was taken first on an amendment
proposed by Mr. James A. Garfield, of Ohio, but later modified and
presented by Mr. S. S. Marshall, of Illinois:
That the invalidity of the register of the Fifteenth election
district of the Eighteenth Ward of the city of New York would not of
itself justify the rejection of the official returns of the canvassers
of that district.
Resolved, That this case be recommitted to the Committee on Elections
to report upon supplementary proof, to be made as provided in the next
resolution.
Resolved, That either party be authorized to take supplementary
testimony respecting the election in the fifteenth district of the
Eighteenth Ward only, before the 10th day of May next, complying with
the statutory regulations applicable to the case: Provided, That five
days' notice of any proposed examination of witnesses shall be
sufficient.
The House disagreed to this amendment, yeas 53, nays 80.
The House then, by a vote of yeas 54, nays 78, disagreed to an
amendment declaring William E. Dodge, the contestant, not entitled to a
seat.
Then, by a vote of yeas 85, nays 45, the resolution of the majority
declaring contestee not entitled to the seat was agreed to; and,
finally, by a vote of yeas 72, nays 53, the contestant was declared
elected.\2\
-----------------------------------------------------------------------
\1\ Journal, pp. 493, 498, 506, 513; Globe, pp. 1746, 1768, 1791,
1812-1820.
\2\ Journal, pp. 513-516.
Sec. 862
862. The Ohio election case of Follett v. Delano in the Thirty-Ninth
Congress.
It was held in 1866 that proof of notice of service of contest might
not be by affidavit of the o1ficer serving the notice.
It was held in 1866 that under the law of 1851 notice of contest must
be served upon the returned Member personally.
Decision as to what is a determination of result within the meaning
of the law providing for serving notice of contest.
On May 14, 1866,\1\ the Committee on Elections reported in the case
of Follett v. Delano, from Ohio. The sitting Member was returned by a
majority of 239. Several questions were involved in the inquiry of the
committee:
1. As to what is legal evidence that a notice of contest has been
served.
The sitting Member having contended that no notice of contest had
been served on him, the contestant presented affidavits of James T.
Irvine, a notary public, who deposed that he served notice on sitting
Member by leaving it at his residence, and later personally saw him and
requested him to accept service as of the date of service at the
residence. The sitting Member contended that the affidavits, not being
depositions taken on notice to the opposite party, were not legal
evidence. The committee concluded as follows in relation to this aspect
of the case:
The question raised by the first objection made by the sitting Member
is, can service of notice be proved by affidavit, or must the testimony
of a witness to the fact of service be obtained, like all other
testimony, from witnesses, by deposition taken on notice to the
opposite party, in conformity with the statute? The statute does not
provide in what manner the fact of service shall be proved, but makes
the general provision already cited for taking testimony. It may be
noticed that this statute provision does not require the testimony of
witnesses to be taken in the manner prescribed--only ``it shall be
lawful'', to take it in the way therein specified. Therefore, in the
absence of any statute requirement as to the mode of proof of notice of
contest, is the affidavit of a third person sufficient? This is the
first case since the enactment of the law of 1851 where the question
has been raised, so far as the committee knows, or where it could, in
practice, have been well raised; for though affidavits have been
resorted to in almost every case as proof of the service of notice of
contest, yet in every instance till the present case there has been an
answer from the sitting Member admitting the service of notice or
waiving proof of it. The sitting Member made no answer in this case,
and neither admitted nor denied, but left the contestant to prove that
he had served the notice at all, and within the time prescribed by law.
The committee are of opinion that such proof, to be admissible, must
be authorized by statute or some rule established by the tribunal
before which the testimony is to be used, and that in the absence of
these an affidavit could not be admitted according to the principles
which govern in the course of all judicial proceedings. To admit an
affidavit of a third person, unknown in character to the sitting
Member, taken without his knowledge, at a time and place and under
circumstances wholly kept from him, is to open a door through which
great fraud might be practiced if occasion required. It is a fact, too,
as easy of proof in the manner pointed out in the statute for taking
testimony as any other fact in the case, and it is deemed by the
committee the safer way to require its proof in that mode, if the
answer of the sitting Member does not sufficiently admit the fact or
waive the proof of it. This answer, if made, must by law be in
possession of the contestant before he can proceed to the taking of
testimony under the statute, and therefore he will always have the
means of determining the necessity of proof.
The committee did not, however, close their hearing of the case with
their conclusion upon this point, for the reason that they could not
know that the House would agree with this conclusion, and in that event
it would become ultimately necessary for them to pass upon the merits
of the case. The committee were also desirous of reaching the merits of
the case, if possible, and therefore, reserving their decision upon all
preliminary points, they heard the parties upon the entire proof
submitted.
-----------------------------------------------------------------------
\1\ First session Thirty-ninth Congress, House Report No. 59; 2
Bartlett, p. 113.
Sec. 863
2. As to whether or not the notice must be served on the contestee
personally. The report finds:
The second point raised by the sitting Member was, that ``if the
recitals of the affidavits of notice be taken as proved, still the
contestant had failed to `give' him the notice required by the
statute.'' The sitting Member claimed that the statute required
personal notice. By the first affidavit of Mr. Irvine it appears that
notice was served upon the sitting Member ``by leaving it at his
residence in Mount Vernon, Knox County, Ohio, on the 29th of December,
A.D. 1864.'' The statute provision is, that ``the contestant shall give
notice in writing to the Member whose seat he designs to contest.'' Is
leaving a copy at the residence ``giving'' the sitting Member such
notice as the statute requires? Serving of notice by leaving a copy at
the residence is not unusual in judicial proceedings, but it is
believed by the committee that such service is never legal unless
authorized by statute, and can never be substituted for actual notice
unless thus sanctioned. In the law of 1851 there is an express
provision for leaving a notice of taking depositions at ``the usual
place of abode'' of the opposite party, but none for such service of
notice of contest. A reference to the debate in the House at the
passage of this act will show that this omission was designed in order
to secure actual notice.
3. As to the time prescribed by the law of 1851 for the service of
notice: The committee found that the law of Ohio provided that the
result of the election should be determined ``within ten days after the
first day of December,'' but the certificate might be given to the
successful candidate at any time thereafter. The law of the United
States, statute of 1851, required the notice of contest to be served
``within thirty days of the time when the result of such election shall
have been determined by the officer or board of canvassers authorized
by law to determine the same.'' As the law of Ohio provided for no
proclamation of the determination of the result, and as the statutes
provided no way for ascertaining on what day within the specified limit
the determination had been made, the committee were of the opinion that
the contestant had thirty days from, the last of the ``ten days after
the first day of December.'' Therefore the 5th day of January, the date
when an effort was made to have Mr. Delano accept service as of
previous date, was held to be within the limit.
863. The case of Follett v. Delano, continued.
Failure of returned Member to answer notice of contest may not be
taken as a confession of the truth of the allegations.
The electors are interested parties to a contest and may not be
precluded by any laches of contestant or returned Member.
It being possible to ascertain the result with certainty from tally
lists returned with the ballots, these returns are sufficient, although
not strictly in accordance with law.
4. As to whether or not the contestee, by failing to answer the
notice, may be considered to confess the truth of the allegations: The
law of 1851 requires the sitting Member, ``within thirty days after the
service, to answer such notice, admitting or denying the facts alleged
therein, and stating specifically any other grounds upon which he rests
the validity of his election.'' The contestant claimed that the sitting
Member, by failing to answer, must be taken to have confessed the truth
of the allegations in the notice. The committee say that this might be
so were the contestant and sitting Member the only interested parties,
and continue:
The electors of the district, each and every one of them, have a
vital interest in that question, and no one of them can be precluded,
by any laches not his own, from insisting that the choice of the
Sec. 863
majority shall be regarded. No confession of the sitting Member,
however it might bind him personally, can place the contestant in the
seat, unless he is the choice of the majority, nor deprive that
majority of its rightful representation. The sitting Member may well be
deprived, by his neglect to answer, of reliance upon ``any other
grounds upon which he rests the validity of his election,'' for he has
never given notice of any such grounds; but the committee are of
opinion that the House should require proof that the sitting Member has
not, and that the contestant has, a majority of the legal votes before
unseating the one and admitting the other, however the sitting Member
may have seen fit to conduct his own case in a contest.
5. The question on the merits of the contest: The contestant claimed
that enough votes should be deducted to leave a majority of 84 for
himself. These deductions were claimed because the canvassers had
counted ``soldiers' votes'' from returns so defective in form and
substance as to make them wholly illegal and void, viz, that certain
poll books were not certified to by officers of the election, as
required by the Ohio law; that there was on certain poll books no
certificate of the oath as required by law; that in another case the
poll book did not show when, where, or by whom the election was held,
the heading being left blank.
After quoting the law of Ohio in relation to soldiers' votes, the
report refers to the papers required by law to accompany the poll
books, and says:
A reference to the statute cited will show what these papers are
which come up with the poll book, and what use they serve. From this
reference it appears that there are to be kept two poll books, two sets
of tally sheets, the form of which is given in the law, and the ballots
themselves counted and strung on a string. The tally sheet gives the
time and place of holding the election, the persons by whom it was
conducted, the number of votes cast, and for whom; and the ballots show
with equal certainty for whom and how many votes were cast. The poll
book should show when and by whom the election was held, and the names
and number of the voters. The law requires one set of tally sheets to
be sent to each county having officers voted for; the other full set of
the tally sheets and one set of poll books are to be sent to the State
auditor; the other poll books and the ballots are to be sent to the
secretary of state. Upon the day specified in the law the board of
canvassers are required, in the manner therein specified, to take and
canvass these returns and ``declare and certify the number of votes
shown by the tally sheets to have been cast for each candidate therein
named, respectively.'' From these provisions it appears that the result
is to be declared from the tally sheets alone--not from the poll books
at all.
If, therefore, the ``tally sheets'' are complete, the means of
ascertaining accurately the result are at hand. Indeed, the result
could not be determined at all from the poll books, for they do not
disclose for whom a vote was cast. The tally sheet is the only paper
which shows that result. By counting the ballots anew that result may
be verified; but the poll book would render no such aid. That contains
only the number and names of the voters in the aggregate. Now, the law
requiring the canvassers to declare and certify the number of votes
shown by the tally sheets, and there being no proof or allegation that
the tally sheets were not correct in form and substance, the return
made from the tally sheets which shows a majority for the sitting
Member, must prevail. It is competent to overthrow that return by
proof, but not without it. Prima facie in the first instance, it
remains sufficient until evidence in conflict with it shall be
introduced satisfying the committee and the House that it is not true.
Nothing has been introduced at all conflicting with the result declared
from these tally sheets. Defective poll books do not conflict with the
tally sheet. They may fail from this defect to corroborate, but do not,
therefore, tell a different story. But the law does not require that
the tally sheets shall be corroborated. They stand alone, unless
overthrown by positive, not negative, evidence. This view of the law is
entirely sustained in a recent case before the supreme court of Ohio,
so nearly like this in the particulars here referred to as to be hardly
distinguishable from it. It is the case of Howard v. Shields, decided
at the December term of that court, A.D. 1865, and not yet published.
The committee say further that there was no allegation or complaint
that the tally sheets were not perfect, and therefore the majority for
the sitting Member could not be set aside.
Sec. 864
On May 18,\1\ the resolution reported from the committee declaring.
Mr. Delano, the sitting Member, entitled to his seat, was agreed to
without debate or division.
864. The Ohio election case of Delano v. Morgan in the Fortieth
Congress.
Sitting Member consenting to contestant's application for further
time to take testimony, the House agreed thereto.
Sitting Member waived objection as to the specifications of the
notice by not making it when the testimony was taken.
The specifications of the notice of contest should be sufficient
merely to put the opposite party on his guard.
On March 8, 1867,\2\ Mr. Henry L. Dawes, of Massachusetts, from the
Committee on Elections, presented a report on the petition of
contestant in the case of Delano v. Morgan, of Ohio. Mr. Delano asked
for an extension of the time for taking testimony because sitting
Member's notices of contest ``consume all the time allowed by law for
taking testimony,'' and ``for that the official duties of your
memorialist as a Member of the Thirty-ninth Congress have prevented him
from taking testimony in his case to the present time.'' The report of
the committee says that for these reasons and for ``the further reason
that sitting Member consents thereto,'' the petition should be granted.
The House thereupon adopted a resolution that the time be ``hereby
extended to each party for the period of seventy-five days from and
after the passage of this resolution, said testimony to be taken in all
other respects in conformity with existing law.''
On May 25, 1868,\3\ Mr. Glenni W. Scofield, of Pennsylvania,
submitted the report of the majority \4\ of the committee as to the
final right to the seat, with resolutions providing for seating the
contestant.
A preliminary question arises in this case as to the sufficiency of
the notice of contest. The minority sustain the objection of sitting
Member to two specifications, as follows:
2. Six hundred and twenty-five persons not legally entitled to vote
were improperly and illegally allowed to vote at said election, and did
cast their votes.
18. Illegal votes were cast for you at said election as follows: In
Clinton Township, Knox County, 25 votes. [Here follows an enumeration
of other townships in a similar way.]
The minority discuss these specifications as follows:
The sufficiency of those specifications was submitted for
determination to the committee by the sitting Member, both in his
printed brief and his oral argument before the committee. It is
therefore the obvious duty of the committee to consider and decide that
question. It is exceedingly material to the proper and just
determination of the whole case and to the legal and substantial rights
of the parties. We inquire, then, do the second and eighteenth
specifications comply in terms or spirit with the express requirement
of the law? Do they ``specify particularly the grounds upon which he
relies in the contest?''
Substantially the allegation in each specification is that illegal
votes were cast for the sitting Member. It can not be said without
doing most manifest violence to the intention of the law that such
general and vague allegations can put the sitting Member in possession
of the grounds of contest. They
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\1\ Journal, p. 718; Globe, p. 2678.
\2\ First session Fortieth Congress, House Report No. 1; Journal, p.
23; Record, p. 33.
\3\ Second session Fortieth Congress, House Report No. 42; 2
Bartlett, p. 174; Rowell's Digest, p. 213.
\4\ Minority views were submitted by Mr. Michael C. Kerr, of Indiana.
Sec. 865
do not aver in what the illegality of the votes consists. They do not
state facts from which the illegality results as a conclusion of law.
They only state the conclusion of law itself and entirely omit the
recital of the reasons or facts that are indispensable to sustain the
conclusion. This is a violation of most obvious principles of correct
pleading and ought not to be approved. There is nothing in the nature
or circumstances of this case to prevent or even render inconvenient a
fair and full compliance with this law in the statement by the
contestant of his grounds of contest. The object of all pleading,
whether in ordinary actions at law or in contested elections or in any
cases required to be subjected to judicial or even quasi judicial
determination, is to limit, to restrict, to narrow, as much as
practicable, the range and scope of the investigation, to exclude
unnecessary latitude of inquiry, to disclose at the outset the
difficulties to be overcome by testimony, or the specific conclusions
intended to be established by proof, to the end that such litigation
may be simplified and cheapened, not made interminable and
unnecessarily expensive, and especially that no advantage shall be
taken or injustice done, against which it is impossible to guard by
reason of the uncertainty and vagueness in the statements of the
grounds of controversy. The importance of these principles has been
well illustrated in this case. The contestant wholly fails to specify
the grounds of contest in his notice and then proceeds in his own order
to make his proofs; but in reference to a large number of voters
(alleged to have been deserters) takes his testimony at so late a day
in the time allowed as to absolutely preclude the taking of counter
testimony by the sitting Member. It was the intention of the law of
Congress to prevent such results by requiring reasonable definiteness
and certainty in the statement of the grounds of contest.
These principles have been repeatedly declared and sustained both in
the English Parliament and in Congress.
The minority then cite the cases of Michael Leib, Easton v. Scott,
Wright v. Fuller, White v. Harris, and Kline v. Verree, and conclude:
This reasoning seems to us conclusive and unanswerable. We conclude,
therefore, that the specifications referred to are too vague and
uncertain to satisfy the imperative requirements of the law, and that
they did by reason thereof work undue prejudice to the sitting Member
in his defense, and that the testimony taken under them ought not to be
considered by the committee or House.
The majority of the committee do not discuss this in their report;
but during the debate \1\ the argument of the minority was answered at
length, it being contended (1) that sitting Member had waived the
objection by not making it when the testimony was taken, this rule
being laid down in the case of Otero v. Gallegos, and (2) that the
specifications were in fact sufficient. These specifications were not
to be judged according to the law of pleading, but rather according to
the law of notice. And under the law of notice only so much is required
as is necessary to put the opposite party on his guard. From the very
nature of the case notices could not be as specific as the minority
contended, since they must be made within a limited time and often
related to widely separated localities. The authorities cited by the
minority are discussed, and also the cases of Washburn v. Voorhees and
Vallandigham v. Campbell.
865. The case of Delano v. Morgan, continued.
When an illegal vote is cast by secret ballot the committee endeavor
to ascertain from circumstantial evidence for whom, the vote was cast.
Discussion as to the kind of evidence required to show how the
elector votes when he declines to disclose his ballot.
The State constitution making citizenship of the United States a
requisite of the elector, persons deprived of citizenship by a Federal
law for desertion were held disqualified.
-----------------------------------------------------------------------
\1\ Speech of Mr. William Lawrence, of Ohio, Globe, p. 2784, second
session Fortieth Congress. Mr. Kerr also debated this question. See p.
2776.
Sec. 865
Discussion of the right of Congress by legislative declaration to
deprive citizens of a State of their rights as electors.
Another question general in nature is discussed before proceeding to
the points in issue. The majority say:
For whom a vote is given, by the laws of Ohio, is a secret properly
known only to the voter himself, and he is never required to disclose
it. This fact must therefore be often determined upon circumstantial
evidence alone. To what political party a voter belonged, whose
partisan he had been, whose friends claimed for him the right to vote
at the time, what he said of his intention before and his act after
voting, are circumstances which each claimant has endeavored to prove,
and which the committee have considered in making up their verdict. In
this action they are governed by precedent as well as principle. The
same ruling obtained in the celebrated case from New Jersey, decided in
1840, and known as the ``broad seal'' case; and also in Vallandigham v.
Campbell, decided in 1858. (See Bartlett's Contested Elections, pp. 28
and 233.) If it is not to be inferred, from this kind of evidence, for
whom an illegal vote was cast, it can not, except in a few instances,
be ascertained at all. Any number of illegal votes, once placed in the
ballot box, either by the deception or connivance of the board, can
never after be excluded unless the whole poll is rejected or the
fraudulent voters voluntarily confess their crime. When, therefore, an
illegal vote is shown to have been cast, the committee have endeavored
to ascertain from circumstantial evidence, when positive proof could
not be given, for whom it was cast, and deduct it from his count.
The minority say:
With some diversity in the rulings of the courts and of Congress on
the subject, the better opinion seems to us to be, that the highest and
best evidence, outside the record, for whom any elector intended to
vote, is the testimony of the elector himself; but where the voting is
by the secret ballot the elector can not be required to testify for
whom he voted, and if he declines so to testify, it is then competent
to show by other evidence for whom he voted. But in the latter case the
evidence should be in character of the highest order attainable under
the circumstances, and, in legal effect, so clear and strong as to
preclude any reasonable doubt as to the fact.
Proceeding to the several questions on the issue of which the
decision depended--
1. The majority thus state the first and most important question:
The contestant claim that 201 deserters from the Army and Navy of the
United States voted for the sitting Member, and that this number of
votes should be deducted from his count. Citizenship of the United
States is one of the qualifications for an elector by the constitution
of Ohio. By the act of Congress passed March 3, 1865, it is provided
that ``all persons who have deserted the military or naval service of
the United States, who shall not return to said service, or report to a
provost marshal, within sixty days after the proclamation hereinafter
mentioned, shall be deemed and taken to have voluntarily relinquished
and forfeited their rights of citizenship and their rights to become
citizens.'' Under this law and the constitution of Ohio a deserter is
not a legal voter in that State. In the argument before the committee
by the counsel for the sitting Member this inference of the law was not
disputed, nor the constitutionality of the law denied, but it was
claimed that neither the election boards nor this House could pass upon
the charge of desertion. This fact, it was claimed, must be first
settled by trial and conviction in a court; in other words, that the
disqualification did not consist in desertion, but in conviction of
desertion. But the law does not so provide. Conviction is not required
nor mentioned. It is the duty of an election board to pass upon the
facts that constitute a disqualification, such as nonage, nonresidence,
idiocy, insanity, color, race, bribery, etc. Why should they not pass
upon the fact of desertion? Because, it is said, that is a crime. So is
bribery, and yet the sitting Member asks that a considerable number of
votes, alleged to have been cast under corrupt influences, should be
thrown out, although there was no conviction or even trial, and the
committee have complied with his demand. It makes no difference that
the same facts which constitute a disqualification would, if heard
before a court, constitute a crime. There are many instances where the
law makes conviction in a court the ground of exclusion from the
franchise, and then, of course, exclusion can only follow conviction.
But when it makes the existence of a fact, as in this case, the ground
of exclusion, that
Sec. 865
fact must be passed upon by the officers of the election in the first
instance, and by this House upon a contest. In the further argument of
the case by the sitting Member himself it was claimed that the law was
unconstitutional and void.
The majority proceed to say that the Supreme Court alone can declare
void the law, which was passed by Congress and had the approval of the
President. The House might override the law, but the committee did not
recommend it.
The minority take issue on this question:
We hold in reference to all of the alleged deserters that they are
legal electors, and that there is a signal failure, by legal evidence,
to establish disqualification against any of them, because--
There is no proof of the trial and conviction of any of them for
desertion by any court or tribunal of competent jurisdiction, civil or
military, under the acts of Congress, March 3, 1863, or March 3, 1865,
or any other laws. Without such conviction, even admitting the validity
of those laws, their right to vote remains entirely unimpaired. It
involves a violation of the most obvious rules of law, and principles
of justice, and guaranties of liberty, and rights of the States, to
deprive a citizen of so precious and sacred a franchise upon a vague
charge, without due process of law, or a fair and impartial trial, with
opportunity to the voter to make his defense. There is nothing in the
acts of Congress that gives any countenance to the assumption that it
is the intention of those acts to work any such results. The authors of
them were not ignorant of the prohibitions and guaranties contained in
the fifth and sixth articles of amendments to the Federal Constitution
and other pertinent provisions of that supreme law. It is not competent
for Congress to inflict punishment by the deprivation of rights upon
the citizens of a State by mere legislative declarations. Neither can
Congress, without usurpation, regulate suffrage in the States, by
direct legislation to that end, or under the pretext of punishing men
for alleged desertion. The regulation of suffrage belongs exclusively
to the States, and this doctrine has been repeatedly affirmed by
Congress in election cases and otherwise. It is also clearly
established that Congress has no rightful authority to confer Federal
judicial power in such matters upon the judicial tribunals of a State,
and still less upon the quasi judicial tribunals organized under the
mere municipal regulations of a State, such as election boards, none of
whose duties can scarcely be said to be judicial at all.
The minority then go on to quote the decision of the supreme court of
Pennsylvania in the case of Huber v. Riley, which arose under the act
of Congress of March 3, 1865. The minority then proceed:
But it is claimed that, because under the constitution of Ohio no An
can be a legal elector who, in addition to the other qualifications, is
not also a citizen of the United States, therefore, Congress having
control over citizenship of the United States, may decitizenize or
withdraw citizenship of the United States from whom it pleases by mere
legislative declarations, without due process of law, and that all
persons thus deprived of citizenship of the United States at once cease
to be citizens, or legal electors, of the State of Ohio. This doctrine
is deemed most dangerous, if not monstrous, and violative of most
valuable and fundamental principles in our Government. That provision
in the constitution of Ohio was undoubtedly designed to prevent aliens
from becoming electors in Ohio until they had first become, by
naturalization, citizens of the United States. This was required on
grounds of local State policy. But it is a perversion of terms to say
that any person acquires the right of suffrage in Ohio by virtue of the
laws of Congress. Naturalization does not confer the right of suffrage.
That right is only conferred by the constitution and laws of Ohio.
Persons are allowed to vote there because they possess all the
qualifications thus prescribed. The right of suffrage at a State
election is a State right, a franchise conferrable only by the State,
which Congress can neither give nor take away. If, therefore, the act
now under consideration is in truth an attempt to regulate the right of
suffrage in the State, or to prescribe the conditions on which that
right may be exercised, it would be held unwarranted by the Federal
Constitution. In the exercise of its admitted powers, Congress may
doubtless deprive an individual of the opportunity to enjoy a right
that belongs to him as a citizen of a State, even the right of
suffrage. But this is a different thing from taking away or impairing
the right itself. Congress may also impose upon the criminal forfeiture
of his citizenship of the United States--that is, of what Justice Story
denominates his general citizenship; but that does not legally or
necessarily deprive him of his
Sec. 866
citizenship of the State, which is secured to him by the State
constitution and laws, and is to be held on the terms prescribed by
them alone. It is an integral part of the State government.
But we claim that the act of March, 1865, is unconstitutional in so
far as it may be designed, by its terms, to work the disfranchisement
of any of the persons alleged to be deserters in this case, because, to
that extent at least, it is an ex. post facto law, and a bill of pains
and penalties. In support of these objections, waiving further argument
here, we refer to the luminous and conclusive judgments of the Supreme
Court of the United States in the cases of Cummings v. The State of
Missouri, and exparte Garland, 4 Wallace Reports, pp. 277, 333, which
ought to be familiar to every Member of the House.
But it is attempted to evade the effect of these decisions by
assuming that the failure to report, in some of these cases, after the
President's proclamation, converted the previous desertion into a sort
of continuing crime, for which continuance the elector may be
disfranchised. It is not, and will not be, denied that the offense of
desertion had been committed before the proclamation, if committed at
all. It was therefore complete, and punishable in the manner prescribed
under the previous laws. But the effect of the act of March 3, 1865, is
to enlarge, extend the offense, to increase it by declaring it a
continuing crime, which it was not before, which is the very definition
of an ex. post facto law:
``An ex. post facto law is one which imposes a punishment for an act
which was not punishable at the time it was committed; or imposes
additional punishment to that then prescribed; or changes the rules of
evidence by which less or different, testimony is sufficient to convict
than was then required.''
During the debate \1\ this feature of the case was much discussed,
and Mr. Henry L. Dawes, of Massachusetts, replying to the arguments of
the minority, enunciated the view that the act of the deserter in not
returning was a renunciation of citizenship.
866. The case of Delano v. Morgan, continued.
One of the election judges being disqualified by law to act as judge,
the returns were rejected.
Although the State law forbade temporary closing of a poll on penalty
of vitiating the election, yet the harmless act of suspending voting
while the officers dined was overlooked.
Temporary absence of a portion of the election officers for purpose
of dining was not considered ground for rejecting the poll.
A neglect of the law prescribing the boundaries of voting districts
being sanctioned by eighteen elections, the House refused to reject the
returns therefrom.
The parties, in proving fraud, having proved the votes actually cast,
the House corrected the poll instead of rejecting it.
2. The majority of the committee thus discuss the second objection:
The contestant asks that the returns from Pike Township, Knox County,
should be rejected because Salathiel Parrish, one of the judges of the
election, being a deserter from the draft of 1864, was incompetent to
act in that capacity. The constitution of Ohio provides, ``that no
person shall be elected or appointed to any office in this State,
unless he possesses the qualifications of an elector;'' and the
statutes of that State further provide that ``three persons to be
elected township trustees, to have the qualifications of electors,
shall act as judges of the elections.'' Under the act of Congress
approved March 3, 1865, and the constitution and laws of Ohio, a
deserter has not the qualifications of an elector, and is therefore
incompetent to act as a judge of election. In the case of Howard v.
Cooper (Contested Elections, vol. 2, p. 282) the returns of Van Buren
Township were rejected because there were only two judges, when the law
required three. If a return is untrustworthy when one of the judges is
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\1\ Globe, p. 2807.
Sec. 866
absent, it is certainly more so if the vacancy is filled by a person
disqualified to act. Two competent judges are certainly more reliable
when acting by themselves than when advised, directed, and in part
overruled by a third, pronounced by the law unfit for the trust. This
principle is decided in Jackson v. Wayne (Contested Elections, vol. 1,
p. 47). Whether the selection of this judge was intentional or
unintentional can make no difference in the enforcement of the rule,
but the committee are not authorized to conclude, from any of the
surroundings of this case, that it was purely accidental. This law of
the United States was very much criticised by those who were opposed
either to the war or the mode of conducting it. Many persons insisted
that it was unconstitutional and void, and might be safely disregarded
by the judges of elections. Indeed, it was disregarded in many parts of
this district. In this very precinct, as appears from the evidence,
eleven deserters were allowed by the board, thus illegally constituted,
to cast their votes. Whatever may be thought of the propriety or
constitutionality of this law by individuals, it was certainly binding
upon the electors of Pike Township until repealed by Congress or
pronounced unconstitutional by the Supreme Court.
It is worthy of note in this connection that the required form of
certificate to the poll book was essentially changed in this case. The
special fact required by law to be given is altogether omitted. It
certifies only to the number of votes cast, while the law requires that
it should certify that they were cast by electors. The number is not so
important, because that is also in the certificate to the tally papers,
but that it should appear affirmatively that the persons casting these
votes were qualified voters, is pointedly required by the statute of
Ohio. There is great propriety in the law, and it ought in all proper
cases to be enforced. The committee, mainly for the reason first
stated, have rejected these returns.
The minority do not admit either the facts or law of the majority,
but declare that even if Parrish was incompetent for the reasons
alleged, he was still a de facto officer and the election was valid. In
debate it was urged by the majority \1\ that the de facto principle did
not apply in the case of a man who had not the legal capacity to act.
3. The sitting Member claimed that the returns from certain townships
should be rejected, because the voting was suspended for a short time
while the officers were dining. The law of Ohio provided that after the
polls were once opened in the morning they could not be closed for any
purpose without rendering the election void. The majority say that
while they can not sanction the custom of temporary adjournment, yet as
no one appears to have been deprived of his vote, they say:
They do not feel warranted in depriving so large a number of electors
of their votes on account of this unintentional and, in these cases,
harmless errors of their officers.
The sitting Member also claims that the returns from the First Ward
of the city of Zanesville should be rejected on account of the
temporary absence of one of the judges and one of the clerks. The polls
opened in this ward a few minutes after 6 o'clock in the morning and
closed at 6 o'clock in the evening. The counting out immediately
followed, making a continual session of thirteen or fourteen hours.
Instead of closing the polls, as was done in the townships before
referred to, the officers took turns in going out to their meals. They
were absent for this purpose about thirty minutes each. However
reprehensible this temporary absence may be, it does not appear to be
brought within the case of Howard v. Cooper, cited by the sitting
Member. In that case one of the judges was absent all the time, and his
place was not supplied, as it might and ought to have been, by the
voters present, and the returns are signed by less than the number of
judges required by law. In this case the proper number of officers
officiate at the election, count the votes, and sign the returns. A few
votes may have been taken in the absence of one of the officers, but a
list of them was kept, and subject to his inspection and criticism on
his return. There being no proof or suspicion of unfairness or illegal
voting in the ward, the committee are of the opinion that the votes
should be counted.
-----------------------------------------------------------------------
\1\ By Mr. Dawes, Globe, p. 2808.
Sec. 866
The minority also concur:
The chief violations of the letter of the law consist in closing the
polls for short periods during the dinner hour and in the too frequent
absence of one or another of the officers from his place at the polls
while open. The fact of such unlawful closing of the polls or of such
occasional absence of an officer of the election, without proof of bad
faith, fraud, corruption, or actual injury, we deem insufficient to
call for the rejection of the polls in question.
4. The majority state a fourth question as follows:
The sitting Member further claim that the returns from Clinton
Township, Knox County, should be rejected for the reason that the city
of Mount Vernon and said township voted at one and the same precinct.
The city of Mount Vernon was incorporated by a special act of the
legislature in 1845. It lies in the center of Clinton Township, from
whose territory it was taken. Under this special charter the township
and city were authorized to hold all county, State, and national
elections together, and from that time to this all such elections have
been so held. In 1852 a general act was passed by the legislature ``to
provide for the organization of cities and incorporated villages,''
which makes each ward of a city an election district, and provides that
the election shall be held at such places as the councilmen for such
ward shall direct. Under this act no places for holding general
elections in the city of Mount Vernon have ever been fixed. The law was
not supposed to apply to this city so as to overrule its special
charter. The city and township continued to hold their general
elections together as before. Up to and including the election of 1866,
fifteen State and four national elections had thus been held since the
act of 1852. It is claimed now for the first time that the general
election in the city of Mount Vernon, under the law of 1852, should be
held separate from the township, in its own wards, and that the 1,100
voters of this precinct must be disfranchised as the penalty for so
long misconstruing the law. The committee are inclined to think that
the sitting Member is right in his construction of the law, considered
as an original proposition, but as eighteen different elections
preceding that of 1866 have been held since the act of 1852 without
question, they do not feel justified in setting aside an election held
in pursuance of a construction so long sanctioned by the authorities of
the State.
The minority urged reasons of alleged fact why these returns should
be rejected, and on the question of law argued:
No elections were held in the wards of the city. Their ballots were
confused with those of the citizens of the township outside. It is no
answer to say that the proper officers neglected to organize election
boards in the city, and that the people therefore might vote at the
township poll, because, in such case, it was the right and duty of the
citizens at the time to select other officers and proceed to hold the
election according to law. The citizens of the city had no right to
vote at all out of their respective wards, and to do so was to commit
crime under the laws of Ohio. If all these things can be done without
vitiating elections, then election laws become useless and inoperative.
5. The majority say in relation to a fifth question:
The contestant also claims that Linton and Monroe townships, in
Coshocton County, should be rejected. In each of these townships the
ballot box was tampered with, and the number of votes returned for the
sitting Member was larger than the number of votes cast for him, while
the contestant's vote was proportionally diminished. In Linton the
judges refused to allow certain friends of the contestant to be present
while the votes were being received, as required by law; and in Monroe
the township clerk refused to allow the friends of contestant to
examine the retained poll book and ballots as the law requires, and the
poll book returned to the clerk of the court was afterwards stolen. It
is further objected to the returns from these townships that there is
no certified poll book.
The majority further say that either the frauds proven to have been
practiced on the ballot boxes or the absence of all certificates to the
poll book might be considered a good reason for rejecting the returns
altogether, but in proving the fraud the parties had proved the number
of votes and for whom they were cast. Therefore the committee corrected
the returns and did not reject the poll altogether.
Sec. 867
The minority say as to Linton Township:
The law of Ohio requires that the names of the voters shall be
entered upon the poll books, and that after the poll books are closed
the poll books shall be signed by the judges and attested by the
clerks, and the names therein contained shall be counted and the number
set down at the foot of the poll book. At the election in question this
was done, except the signing. The statute further requires that after
the examination of the ballots shall be completed, the number of votes
for each person shall be enumerated, under the inspection of the
judges, and be set down opposite to their names, and that the judges of
the election shall certify to the same, which certificate shall be
attested by the clerks, all of which was done. (I Swan & Critch, pp.
533, 534, 535.) The object of the election law is to require the
officers to certify the result of the election. That they have
explicitly done in this case, and we submit have thus substantially,
although not technically, complied with the law.
As to Monroe the minority say:
But the contestant alleges fraud in the officers of this election.
The officers, of whom two were Republicans and three were Democrats,
were all examined, and all testified that there was no fraud committed
by them or with their knowledge. There was other testimony tending to
excite suspicion as to the conduct of one of the officers, but it is,
in our judgment, entirely insufficient to justify the rejection of the
vote of the township, as established by the evidence and the admissions
of the parties. It is impossible for us to perceive on what ground of
law, or political or moral ethics, votes should be refused to any
candidate for whom, by legal evidence, they are shown to have been
cast. To reject such votes upon legal technicalities violates every
precedent in Congress, and makes Congress assume the odious
responsibility of electing Members of Congress.
6. As to Blue Rock Township the majority and minority disagreed as to
the facts shown by the testimony.
The returns on their face had shown a majority of 271 for sitting
Member. The majority of the committee, as a result of their
conclusions, found this obliterated, and that contestant had a majority
of 81. They therefore reported resolutions to carry this conclusion
into effect. The minority found a legal majority of 742 for sitting
Member.
The report was debated at length in the House on June 2 and 3,
1868,\1\ and on the latter date a resolution of the minority declaring
sitting Member entitled to the seat was disagreed to, yeas 37, nays 39.
Then the resolutions of the majority were agreed to, yeas 80, nays 38.
Thereupon Mr. Delano appeared and took the oath.
867. The Missouri election case of Switzler v. Anderson in the
Fortieth Congress.
A canvassing officer may not reject returns which are regular on
their face because the registration law may have been violated in the
district in question.
As to the degree of intimidation required to justify a decision that
a registration is void.
Entries on a registration list made by an officer not authorized by
law to note the qualifications; of voters thereon are not evidence as
to qualifications of persons registered.
On March 22, 1867,\2\ the House by resolution extended for sixty days
from the time prescribed by law the time for taking testimony in the
Missouri contest of Switzler v. Anderson.
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\1\ Journal, pp. 790, 791; Globe, pp. 2773, 2804-2809.
\2\ First session Fortieth Congress, Journal, p. 93.
Sec. 867
On March 23, 1868 \1\, the report of the majority of the committee
was submitted by Mr. Luke P. Poland, of Vermont, and on April 2 Mr.
Joseph W. McClurg, of Missouri, submitted the minority views.\2\ The
case turned on the vote of the county of Callaway, which returned for
contestant 1,463 votes and for sitting Member 163. The secretary of
state of Missouri had declined to open and cast up the votes of
Callaway County on the ground that there had not been a proper
registration, and the certificate was issued to sitting Member, who had
a majority of 178 votes in the remaining counties.
The provisions of the registration law are thus set forth in the
report:
The governor of the State is to appoint a supervisor of registration
in each county, who is also the president of the board of appeals and
revision. The supervisor of registration in each county is to appoint
an officer of registration in each election district. The officers of
registration in each election district are required to attend on
certain days prior to each general election for the purpose of
registering the voters of such district. Every person applying to such
officer of registration to be registered as a voter must first take and
subscribe the test oath prescribed by the constitution of that State.
Such officers of registration are also empowered to examine, on oath,
every person applying for registration, and it is made their duty to
diligently inquire and ascertain that such person has not been guilty
of any of the disqualifying acts specified in the constitution. Such
officers may also take other evidence as to the qualifications of the
applicants, and also act upon their own knowledge. If he is satisfied
that the applicant is duly qualified, and can honestly and truthfully
take the test oath of the constitution, then he registers such person
as a qualified voter. If the officer is not satisfied that the
applicant is qualified, he is to enter his name upon a separate list of
persons rejected as voters, and he is also to enter the grounds of the
rejection, and note an appeal, if one be taken.
The superintendent of registration and the several district officers
of registration constitute a board of registration, and are required to
meet on certain days prior to the election to hear appeals from the
several district registrars and generally to revise the registration in
the several election districts in the county, and act upon objections
to any who may have been registered as accepted voters.
After this action by the board of revision each distinct registrar is
required to make out and certify two copies of the revised registration
of his district, and deliver one to the clerk of the county court and
one to the election judges of the district. No person is allowed to
vote as ``a qualified voter'' unless his name appears as such upon the
certified copy thus furnished the judges of the election.
All these provisions of the law in relation to the duties of
registration and election officers are enforced by severe penalties for
their violation; and all attempts to impede registration by threats,
intimidation, or violence are similarly punishable.
By a supplemental registration act it is provided that the
supervisors of registration in the several counties shall ``make out
and forward to the secretary of state, immediately after the completion
of the registration in their respective counties and districts, a
certified copy of the registration thereof, which shall contain the
names of all registered voters; which certified copy shall be evidence
of the facts therein stated, and may be used as such in any contested-
election case, or other legal proceedings.''
The governor appointed the registering officers in accordance with
the above law. It appeared from the debate that the governor, the
superintendent of registration for Callaway County, and the district
registrars belonged to the party of the sitting Member.\3\ The district
registers made the registration, and each certified the copies of the
registration as required by the law. The copies were duly delivered to
the clerk of the county court and the judges of the several election
districts as the
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\1\ Second session, Journal, pp. 561, 606; 2 Bartlett, p. 374;
Rowell's Digest, p. 219; House Report No. 28.
\2\ In this case it is worthy of notice that the sitting Member
belonged to the majority party in the House and contestant to the party
represented by the minority.
\3\ Globe, p. 4085.
Sec. 867
law required. The election was held November 6, 1866, but not until
December 12, 1866, did Thomas, the county superintendent of
registration for Callaway County, certify the registration of the
county to the secretary of state. The copy which he then returned had
attached to the registration of each district or township the
certificate of the district registrar. He also attached a certificate
of his own, wherein he set forth that the letter and spirit of the law
was not carried out in any one of the election districts; that such
widespread intimidation existed in the county that the law ``was not
carried out, as the certificates hereto appended show.'' The charges
herein set forth were substantiated by certificates from three district
registrars, who each certified that by reason of intimidation disloyal
men not entitled to vote had been registered. Thomas also made entries
against the names of 730 registered persons, such entries alleging
disloyalty.
As to whether, on the state of facts as presented, the secretary of
state had any right to refuse to cast up the votes given in the county
of Callaway, the report says:
It does not distinctly appear that the secretary of state knew that
these entries on the copy of registration had been placed there by
Thomas, but it seems highly probable that he did, as it does appear
that before Thomas made any certificate upon the registration, it was a
matter of consultation and discussion between him and the secretary
whether he could make such a certificate as he did make, and the effect
of it, the secretary saying that if Thomas could make such a
certificate, he thought it probable the whole thing could be thrown
out.
Thomas had no legal right to make any such entries upon the copy; it
was not in the performance of any legal duty that the laws of the State
devolved upon him; his duty was only to make out and deliver to the
secretary of state a copy of the registration of the county, containing
the names of all registered voters, and to verify it by his official
certificate. He had no right to interpolate other facts or statements
into the copy, and he had no power to make his certificate evidence to
any greater extent than to verify the copy as a true copy of the
official registration. But assuming that the secretary of state did not
know that these entries on the registration had been made by Thomas,
and that he supposed they were made by the district registrars, or were
made by the board of appeals, still, in the judgment of the committee,
he had no right to regard them, and upon them set aside the vote of the
county. The copy of registration shows that each of the persons against
whose name such entry had been made was registered as a qualified
voter, and that such registration had been sanctioned and approved by
the board of appeals. If he had the right to suppose that they had this
evidence before them, or that such charge was made against these
persons, he must also see that notwithstanding this, they had been
allowed to remain upon the register as qualified voters. The law
nowhere authorizes the secretary of state to review the action of the
registration officers and overrule their action. But it is not
necessary to enlarge upon this view of the case, as the committee is
satisfied that the secretary knew that these entries were made by
Thomas with a view to support what he stated in his certificate, and
that he ought to have treated them as a mere nullity, as much as if
Thomas had entered against the same persons that they were minors or
nonresidents.
Nor had the secretary any right to regard the facts stated by Thomas
in his certificate, except so much as verified the copy. The law is
entirely settled that statute-certifying officers can only make their
certificates evidence of the facts which the statute requires them to
certify; that when they undertake to go beyond this and certify other
facts, they are unofficial, and no more evidence than the statement of
any unofficial person. The statements or certificates of Turner,
Turley, and Yount can not be regarded as having any legal validity
whatever. The district registrars had exhausted their legal power of
certifying when they had certified the registration of their respective
districts; they were not officers to certify the county registration to
the secretary of state, so that their statements are of no more force
than any private persons. The law is equally clear that the secretary
of state had no legal power to go behind the returns that were
certified to him by the county clerks of the votes in the respective
counties, or behind the returns of the registration officers. He was a
mere canvassing officer, to open and count the votes that upon the face
of the returns appeared to have been regularly cast.
Sec. 867
The committee therefore concluded that the action of the secretary of
state in rejecting the vote of the county was wholly illegal and
unauthorized.
But the sitting Member further claimed that, even if the secretary of
state might not reject the vote of Callaway County, the House might
nevertheless do it, on the ground partly that the district officers of
registration voluntarily neglected their duty and the requirements of
the law, but mainly on the ground that the public and general
sentiments of the people were so hostile to the proper enforcement of
the registry law, and that such open threats were made against those
who should attempt it, that the registrars were intimidated and
prevented from doing their duty, and that loyal men were prevented from
interposing objections against the registration of their disloyal
neighbors. After weighing the evidence the committee conclude:
From the mass of conflicting opinion on this subject, and from the
character of the threats proved, the committee comes to this
conclusion, that there was no just and reasonable ground to fear
personal violence or injury in consequence of appearing to make and
support objections to registration; but that it was against the general
and public opinion of the county that persons who had not committed
disloyal acts should be disfranchised merely on the score of opinions
and sympathies, and that probably many persons did refrain from making
objections rather than encounter this general sentiment.
The committee does not regard this as any such unlawful interference
with or obstruction of the law as furnishes ground to invalidate the
registration. Nor does the committee regard any threats to seek redress
against refusal of registration, by resort to legal tribunals by suit,
as unlawful, so as to produce that effect.
The committee, upon all the evidence, can not find that there was any
such misconduct or disregard of the law by the district registrars, or
any such fear or intimidation excited, either upon the registrars or
upon loyal men generally, as to preclude a fair and legal registration
of this county, or to justify a total rejection of its vote for any
such cause.
As to another feature the report says:
The committee does not understand that it is claimed for the sitting
Member that if the vote of this county is to be counted, except so far
as he shows the contestant received illegal votes, that his evidence
shows a sufficient number to prevent the election of the contestant.
Even striking out all those who had entries made against them by
Thomas, more than enough are left to give the contestant a majority.
But those entries are not, in the judgment of the committee, any
evidence of the disqualification of the person registered.
As has before been shown, Thomas had no authority to make them, and
could give them no additional force by spreading them upon this copy of
the registration of the county.
Thomas, upon inquiry as to the evidence upon which he acted in making
these entries, says:
``In cases of bonded persons I took it from a list furnished me from
the adjutant-general's office; those under the head of remarks, who
were designated as enrolling disloyal, were taken from an enrollment
made by Colonel Kerkel in 1862; under the head of other remarks, there
were very few of them. The remarks made of this last class were made
upon my own knowledge.''
We have been cited to no law by which these lists of persons, as
under bonds, or enrolled disloyal, are made evidence for any purpose
beyond the specific one for which the lists were made; and upon what
authority or evidence the lists were made is not shown. It is left
altogether in doubt whether Thomas had the original enrollment made by
the military authorities, or had only an unauthenticated copy. But
however much weight the enrollment itself might be entitled to if
produced in evidence here, the common principle of requiring the
production of written evidence, and not receiving its contents from a
witness, is a sufficient answer to bringing them in this manner. The
attempt of Thomas to make facts ``within his own knowledge,'' or
``facts generally admitted,'' evidence, by thus entering them upon this
copy of registration, is a still wider departure from all proper rules
of evidence. The
Sec. 868
evidence in the case shows that a few persons who had actually been
engaged in the rebellion were registered as qualified voters; and
giving full credit to the opinions of the witnesses of the sitting
Member as to the number of persons in the county entitled to be
registered under the law, it would appear that a large number must have
been registered who were disqualified by reason of having sympathized
with those engaged in rebellion.
The committee has already had occasion to express its judgment (which
was sanctioned by the House) of the insufficiency of such general
estimates for the purpose of proving either the qualification or
disqualification of voters, and when such estimates are founded upon
the sentiments and opinions of others, instead of tangible causes, they
are still more dangerous as evidence.
Therefore the majority of the committee recommended resolutions
declaring contestant elected and unseating sitting Member.
The minority, after reviewing the testimony as to intimidation,
conclude:
Sufficient testimony has been quoted to satisfy the House that such a
state of fear existed in Callaway County that there was not a proper
enforcement of the law, but such a disregard that it is impossible to
ascertain what should have been the legal vote in regard to numbers;
disloyalty being triumphant, the loyal intimidated, registrars
powerless, witnesses awed into silence, ``a quiet election,'' and even
``a quiet registration,'' because the disloyal controlled all as they
desired.
Loyalty and justice demand that the election in that county
(Callaway) be regarded as a nullity; that treason be thus rebuked, and
those who failed in their efforts to destroy their government by the
bullet be taught that, if permitted to control it by the ballot, they
shall not be permitted to do so in open and flagrant violation of the
law.
868. The case of Switzler v. Anderson, continued.
The House recommitted a report in an election case for inquiry as to
a newly made charge of disloyalty against both parties.
The House, overruling its committee, held void an election in a
countybecause of the intimidating influence of a preponderating
disloyalelement.
Instance wherein the House declined to follow its committee in
awarding the seat of a Member of the majority to a Member of the
minority party. (Footnote.)
The report was debated in the House on July 15 and 16, 1868.\1\ On
the latter day Mr. John F. Benjamin, of Missouri, in the course of
debate, presented charges against the qualifications of the contestant
as to loyalty.
It was objected that the pleadings made in accordance with the law
had contained nothing affecting the loyalty of contestant, and that
branch of the subject had not been investigated by the committee.
But the House voted, yeas 93, nays 46, to recommit the case with
instructions to inquire into the charges of disloyalty made against the
contestant, and also charges of disloyalty made by contestant against
sitting Member.
On January 14, 1868,\2\ the committee reported again, stating that
files of a newspaper edited by contestant had been presented tending to
show disloyalty, especially an editorial justifying the shooting of
Colonel Ellsworth at Alexandria. The report cites the conclusions in
the Kentucky case, and announces that the committee adheres to the
conclusions of the former report. While many of the articles published
in contestant's newspaper were mischievous in their tendency, yet
-----------------------------------------------------------------------
\1\ Globe, pp. 4084, 4124-4133; Journal, pp. 1087-1089.
\2\ Third session, House Report No. 7.
Sec. 869
there was no such proof of disloyalty as to require his exclusion under
the rule laid down in the Kentucky cases. The article relating to
Ellsworth was repudiated by contestant, who declared that it was
published without his knowledge.
On January 21 \1\ the second report was debated at length in the
House. The opponents of the majority report urged that the House itself
should reject the vote of Calloway County because the testimony
abundantly showed that by far the larger part of the registered persons
in that county were disloyal and not entitled to vote under the law of
Missouri. This testimony was urged to be sufficiently conclusive,
although this was vigorously disputed by those supporting the majority
report.
A test vote was taken on the resolution unseating sitting Member.
This was disagreed to, yeas 55, nays 89. Thereupon the resolution
declaring contestant entitled to the seat was laid on the table. So the
majority report was disapproved, and sitting Member retained the seat.
869. The Missouri election case of Birch v. Van Horn in the Fortieth
Congress.
Extension of time of taking testimony in an election case.
Suffrage is a political right or privilege which, after it is
granted, may be restricted or enlarged.
A new State constitution withholding suffrage from persons not able
to take an oath of loyalty was held valid and not in the nature of an
ex post facto law.
On March 22, 1867 \2\ by unanimous consent, the House agreed to a
resolution presented by Mr. Joseph W. McClurg, of Missouri, providing
that the time for taking testimony in the Missouri contested-election
case of Birch v. Van Horn be extended for sixty days after the
expiration of the time prescribed by law.
On December 18, 1867,\3\ Mr. Luke P. Poland, of Vermont, from the
Committee on Elections, submitted the report of the committee in this
case. The sitting Member had been returned by an official plurality
which in corrected form amounted to 525 votes.
(1) The principal contention by which the contestant strove to
overcome this plurality related to a large number of rejected votes, of
which 2,501 were for contestant and 9 for sitting Member. The
constitution of Missouri, which had been in force since July 5, 1865,
disqualified as voters all persons who had manifested adherence to or
sympathy with the cause of the so-called Confederacy. This constitution
also provided for a system of registration, and that as a prerequisite
to such registration and to voting the citizen should take an oath
proving his loyalty. The taking of this oath did not of itself insure
registration, but the registration officers might institute inquiry,
and if this inquiry were not satisfactory, might place the name on the
rejected list. Persons on this rejected list might cast their ballots,
but such ballots were marked and certified as rejected. The examination
of this question of rejected voters divided itself into several
branches.
-----------------------------------------------------------------------
\1\ Journal, p. 191; Globe, pp. 502-518.
\2\ First session Fortieth Congress, Journal, p. 93; Globe, p. 289.
\3\ Second session Fortieth Congress, House Report No. 4; 2 Bartlett,
p. 205; Rowell's Digest, p. 215.
Sec. 870
(a) A question as to the constitutionality of the provision, in view
of the fact that another portion of the State constitution had been
impeached. The report says:
The ninth section of the same article provides that, after sixty days
from the time the constitution takes effect, no person shall be
``permitted to practice as an attorney or counselor at law, nor after
that time shall any person be competent as a bishop, priest, deacon,
minister, elder, or other clergyman of any religious persuasion, sect,
or denomination, to teach or preach, or solemnize marriages, unless
such person shall have first taken, subscribed, and filed said oath.''
Under this ninth section of the constitution arose the case of
Cummings v. The State of Missouri (4 Wallace, 277), in which it was
held by a majority of the Supreme Court of the United States that this
provision, having the effect to deprive persons of the right to
practice professions and pursue avocations lawful in themselves, in
consequence of acts done prior to the adoption of the constitution,
could only have been intended as punishment for such acts, and was
therefore in essence and substance an ex post facto law, and therefore
forbidden by the Constitution of the United States.\1\
The contestant claims that the same application of principles
requires the same decision in relation to voters; that the virtual
disfranchisement of persons who were voters under the previous
constitution and laws of the State, but who are prevented from voting
under the new constitution by reason of their inability to take the
oath it requires, can only be regarded as a punishment for the act
which stands in the way of taking the oath, and that the Constitution
of the United States prohibits the infliction of punishment by
subsequent legislation.
If such disfranchisement must be regarded as established for the
purpose of punishing the persons thus deprived of the right of voting,
it must be admitted to come entirely within the reasoning by which the
above-cited judgment of the court is supported.
Your committee believe that the provisions of the new constitution of
Missouri may be supported, so far as they require this oath of voters,
without at all trenching upon the decision of the Supreme Court.
Each of the States of the Union have hitherto regulated suffrage
within their own limits for themselves, and in such a manner as the
people of the State deemed most conducive to their own interests and
welfare. Suffrage is a political right or privilege which every free
community grants to such number and class of persons as it deems
fittest to represent and advance the wants and interest of the whole.
No State grants it to all persons, but with such limitations as the
interests of all and the interest of the State require.
When once granted it is not a vested, irrevocable right, but it is
held at the pleasure of the power that gave it, and the State may, by a
change of its fundamental law, restrict as well as enlarge it. When,
therefore, the State of Missouri, in changing its constitution, saw fit
to declare that the interests of the State and of the people of the
State would be promoted by withholding the right of voting from all
persons who could not take the prescribed oath, they exercised no
greater or higher power than exists in every State.
870. The case of Birch v. Van Horn, continued.
4. A new State constitution being recognized by State authorities and
by Congress in the reception of Representatives, the House will not
question it in an election case.
Persons being denied the privilege of voting because of
disqualification, their votes may not be counted by the House on
general testimony as to their qualifications.
A registration officer who could not properly take the oath he did
take as such officer was held a good de facto officer.
-----------------------------------------------------------------------
\1\ Although the whole committee concurred in the conclusions of the
report, Mr. Michael C. Kerr, of Indiana, argued in debate in support of
the objection that this provision of the State constitution was in the
nature of an ex post facto law. (See Globe, p. 401.)
Sec. 870
(b) The committee also conclude:
On the 1st day of July, 1865, the governor of the State issued his
proclamation declaring the constitution adopted, and in force from and
after the 4th day of the same July. Since that time the new
constitution has been regarded by all the departments of the State
government as the fundamental law of the State; all the legislation of
the State has been conformed to it; all the officers of the State, and
of all municipal subdivisions of the State, have been elected and held
office according to its requirements, and the State has been
represented in both Houses of Congress without question as to the
validity and binding obligations of this constitution.
The contestant now claims that this State constitution, so far at
least as it affects elections of Members of Congress, should be held a
nullity, and as if it had never been adopted by the people of the
State.
This is claimed upon the ground that the convention by whom it was
framed exceeded their powers given by the legislative act by which the
convention was called, and that this was not cured by its subsequent
adoption by the people, because, in submitting it to a vote of the
people, those only were allowed to vote who could take the oath
prescribed in the second article of the constitution, the effect of
which was to preclude large numbers from voting who had been previously
allowed to vote. The committee have not deemed themselves at liberty to
enter upon this inquiry.
It being conceded that by every department of the State government of
Missouri this constitution is recognized and acted upon as the
fundamental law of the State, and by Congress in the reception of
Representatives from the State, it is in our judgment too late for this
House to inquire as to the regularity of its formation or adoption by
the State.
(c) Contestant also claimed that even if the State constitution were
valid, the persons whose ballots were rejected were nevertheless legal
voters under all the requirements of the new constitution. In support
of this he produced general testimony. Thus, taking the list of
rejected voters at a certain place, a witness would be introduced to
swear that he did not know any one of them ``who was disloyal within
the meaning of the terms of the new constitution of Missouri.''
The committee say:
The evidence of the contestant tends to show that the restrictions
and disqualifications created by the new constitution were very rigidly
enforced, and some instances of partisan unfairness are shown, but to
what extent this operated to exclude lawful voters from registration,
and who such voters were, is left wholly vague and uncertain. The only
evidence in the case is that taken by the contestant, and it is
probable that much of the appearance of unfairness would have been
dispelled if evidence had been taken by the sitting Member.
If the class of evidence introduced by the contestant had been the
only means within his reach to establish the right of the persons
rejected to be registered and vote as qualified voters, there would be
very plausible ground to claim that enough ought to be presumed from it
to at least vacate the election, unless what is proved by the
contestant was rebutted by evidence from the other side. But the
contestant was not confined to this proof or evidence of this general
nature at all. The provisions of the constitution and laws of Missouri
furnished him peculiar facilities to establish his case, if he relied
upon proving that legal voters were excluded from registration and
voting as qualified voters, in as much as the rejected list of the
registers and the rejected votes furnished the names of the persons and
the candidates for whom they voted.
Under these circumstances the committee consider they have no right
to rely upon such vague and general evidence as has been furnished, or
to draw presumptions and conclusions from it when it was clearly within
the power of the contestant to have established the facts; he asks us
to presume by dear and exact proof if such facts exist.
The committee consider, also, that in order to unseat a Member of
this House who has the regular certificate of election, and who is
conceded to have received a majority of several hundred votes of the
votes received and counted, they should be able to report whose votes
were excluded that ought to have been counted; that it would not do for
the committee or for the House to say that out of 2,500 rejected
voters, all of whose names are unknown, they are satisfied that enough
were legal voters and ought to have been counted to give the contestant
a majority.
Sec. 870
(2) The committee thus discuss a question relating to an
irregularity of certain poll books:
The contestant also claims that all the votes cast in the county of
Clinton, except in the township of Concord, should be excluded by
reason of the insufficiency of the poll books returned by the judges
and clerks of election in the several townships.
The statutes of Missouri require that the judges and clerks of
election, before entering upon their duties, take the oath required by
the constitution, and also an official oath prescribed by the statute.
The statute gives a form for a poll book, in which form it is stated
that the judges and clerks were duly sworn previous to entering upon
the duties of their offices. The committee regard this as a statute
requirement that should appear upon the poll books returned.
Jeremiah V. Bassett was clerk of Clinton County at the time this
Congressional election was held. He testifies that the poll books from
the townships of Jackson, Shoal, Lafayette, Hardin, and Platte
contained no evidence that the judges and clerks of election therein
had taken the required oaths. Robert W. Musser, who was deputy clerk
during the same time, testifies to the same fact.
These townships gave 375 votes for Van Horn and 189 for Burch. The
committee are satisfied that this defect existed in the poll books of
these townships, as stated by these witnesses (provided it be
admissible to show such fact by paxol evidence), and if for that cause
they ought to have been excluded from the count, then the above number
of votes should be deducted from the votes of both candidates,
respectively, making a difference of 186 votes in favor of the
contestant.
(3) As to the competency of an officer of election:
The contestant also introduced two witnesses whose testimony tended
to prove that Francis D. Phillips, supervisor of registration for
Clinton County, induced men to enlist in the rebel army, and so could
not truthfully take the oath required by the constitution of Missouri
to entitle him to vote or hold office. As these witnesses are not
contradicted, the committee are compelled to find the fact proved, if
it be of any legal value.
The supervisors of registration for each county are appointed by the
governor, and are to be qualified voters. These county supervisors
appoint registers in each election district in the county, who are also
to be qualified voters.
There is no evidence but that Phillips was in every way legally
competent to hold this office, except his inability to take the oath;
nor is any question made but that he had, in fact, taken all the
necessary oaths and other legal steps to make him a qualified voter;
that he was duly appointed to this office by the governor, and had
taken all the oaths required by his official station, and had actually
assumed and performed the duties of supervisor. The committee are of
opinion that his acts as such supervisor can not be regarded as void,
so as to affect the legality of the votes given at the election; that,
having come into the office under all the forms and requirements of the
law, he is at least a good officer de facto, whose acts are not to be
questioned in a collateral proceeding, but only by some proceeding
bringing his title to the office directly in question.
The contestant's evidence tends to establish that Anthony Harsel,
supervisor of registration in Clay County, in 1861 was a friend and
sympathizer with the Southern rebellion; and, uncontradicted, the
committee think it sufficient to establish the fact; but, as in the
case of Phillips, we regard him as being a good de facto officer, whose
acts can not, in a collateral proceeding, be held invalid by reason of
any defect in his official title.
During the debate Mr. Poland said \1\ it would be going a great way,
in consequence of this defect in the supervisors, to vitiate the
appointment of the deputy registrars, and thus vitiate the entire
election, and stated that the committee were unanimous on this point.
The report was debated on January 8, 1868,\2\ both contestant and
sitting Member being heard, and the resolution confirming sitting
Member's title to the seat was agreed to without division.
-----------------------------------------------------------------------
\1\ Globe, p. 389.
\2\ Journal, p. 159; Globe, pp. 389-403.
Sec. 871
871. The Missouri election case of Hogan v. Pile in the Fortieth
Congress.
The use of an unofficial compilation of a registration list to aid in
reference during the voting was held not to vitiate the poll.
Registration being a condition of voting, the House declined to
reject a precinct whereof the registration list was not shown to have
been returned as required by law.
On June 18, 1868,\1\ Mr. Burton C. Cook, of Illinois, from the
Committee on Elections,\2\ submitted the report of the majority of the
committee in the Missouri case of Hogan v. Pile. The questions arising
in this case were largely of fact arising from the workings of the
registration law of Missouri; but a few questions arose involving
principles.
The sitting Member had been returned by a majority of 218 votes,
which the contestant assailed as produced by frauds and irregularities.
The questions involving the determination of principles were:
(1) The law of Missouri required each voter to be registered, and
that no voter who had not been registered should vote. The law further
provided:
Sec. 12. Immediately after the closing of such register the officer
of registration shall make and certify two fair copies, alphabetically
arranged, of the names of the qualified voters, as ascertained and
determined by said board, one of which he shall deposit with the clerk
of the county court on or before the next ensuing Saturday, and the
other he shall deliver at or before the hour of 10 o'clock a. m. of
that day, to some one of the persons who shall have been appointed to
act as judges of the next ensuing general election in the election
district for which the list was made, and shall take his receipt
therefor. * * * The person to whom the said list shall have been
delivered shall produce the same at the place of voting, and deliver it
into the possession of the judges of the election at the time of
opening the polls on the day of the ensuing general election.
* * * * * * *
Sec. 17. When any person shall have voted the judges of election
shall, at the time, write opposite his name on the list the word
``voted.''
In one election precinct the provisions of this law were carried out
as described in the report:
The registry lists certified by the officer of registration were
alphabetized simply by the first letter of the name. In some instances
more than a hundred names were recorded under a single letter. To
remedy the inconvenience occasioned by the imperfect manner in which
the list was arranged, and the consequent delay finding the name of the
voter and receiving the vote, the judges of election of the thirtieth
election precinct, on the day and night prior to the election, caused
the certified list to be copied, and in the copy made the names were
alphabetized by the first two letters, so that the name could be more
easily and readily found; the names were numbered on the certified list
and the numbers were transcribed on to the copy, so that where the name
was found on the copy, by the aid of the number it could be more
readily found on the certified list. (Testimony of John Green, Mis.
Doc. 37, p. 138.) Both the certified list and the copy made by the
judges were present, and were used by the judges and clerks during the
election. There is no evidence before the committee showing that the
copy made by the judges was used to the exclusion of the certified
list; the returns were made on the certified list. (See testimony of G.
Sessingham, p. 139, also the testimony of Charles P. Gould, p. 137, and
of Milton H. Wash, p. 57.)
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\1\ Second session Fortieth Congress, House Report No. 62; 2
Bartlett, p. 281; Rowell's Digest, p. 216.
\2\ Minority views were presented by Messrs. John W. Chanler, of New
York, and Michael C. Kerr, of Indiana.
Sec. 871
The committee are of opinion that the use of a more perfectly
arranged copy of the certified registration lists by the judges, in
connection with the original, for the purpose of facilitating the
finding of the names of voters on the certified lists, and consequently
making it possible to receive a much larger number of votes, did not
render void the election, and if done in good faith was no more a
violation of the law of Missouri than it would have been to have
employed an expert clerk to have found the names of voters upon the
certified list without delay, and thus have expedited the voting.
The minority criticise the secondary list as made up by a partisan of
sitting Member who was not a sworn officer, and not properly supervised
by sworn officers. They say:
This new list got up by Green, etc., is said to have been a ``true
copy'' of the original book or ``list'' furnished by the registrar, yet
no one testifies to any examination and comparison thereof, except, as
Mr. Green says, by counting the names on both lists and finding them to
agree in number. Can the committee sanction this method of comparison?
Would counting the words verify the copy of a bill, a deed, or any
legal instrument? Surely the members of the committee will not try to
legalize a list of voters compared by merely counting the names.
Further, the list used was not authenticated. The law requires the
registrar ``shall certify to the list of voters;'' this is its
authentication. Could it be a legal copy, if even every name on the
original was on it, without this authentication? Did any court ever
admit as evidence a copy of a deed, even though containing every word
of the original, when there was no authentication thereof?
More than this, did ever court admit as evidence a paper purporting
to be a copy of an original one, made evidence, which not only was not
authenticated, but was proven never to have been compared with the
original of which it purported to be a copy? Nay, more, when the
purported copy has been challenged as fraudulent, but is not then
produced for comparison with the original, would any court or jury
substitute such copy? Assuredly they would not. But the evidence is
clear that this official record was substituted by another, claimed to
be a copy, but by no one examined and compared, not even certified by
any one as true. To admit such would be to ignore all the practice of
the past.
The minority and majority then join issue as to whether or not the
facts showed the secondary list to have been made and used for purposes
of frauds. There were certain discrepancies, but the majority insisted
that they were explained by errors arising innocently from writing
foreign names by sound. The minority combated this theory, pointing out
that the party friends of sitting Member controlled the registry.
(2) Contestant also assailed the returns from the thirty-seventh
election precinct. The report says:
It is claimed by contestant that the return from this precinct should
be rejected, because the original registry list was not returned to the
office of the county clerk. The law requires that the officers of
registration shall, ``as soon as may be,'' deposit with the clerk the
original books of registration. The only evidence before the committee
that the original registry list was not returned is as follows: ``No.
21 registration book not returned to clerk's office. James C. Moody,
judge.'' This certificate is without date, and there is no proof before
the committee when it was made.
The next paper is a copy of poll book of the same election precinct,
certified by S. W. Eager, clerk of the county court, which certificate
is dated January 3, 1867. The election was held on the 6th day of
November, 1866. Even if there was any proof before the committee that
the original list had not been returned to the county clerk by January
3, 1866, the committee are not prepared to say, in the entire absence
of proof of the circumstances of the case, that there was such
violation of the law as would render the election void.
In support of this position the report cites the case of
Brockenborough v. Cabell.
Sec. 872
The minority cite the law:
Sec. 14. The officers of registration shall, as soon as may be,
deposit with said clerk the original books of registration, which shall
be kept and preserved among the records of the court, except when
otherwise disposed of, as hereinafter directed.
After stating the facts, the minority say:
Now, we ask, upon what evidence does the majority of the committee
act in receiving as legal votes these 164 from district No. 37? There
is none, for there can be no legal vote without registration, and there
is absolutely no evidence of registration in that district. This
conduct is in most noticeable contrast with the rejection by the
majority of the committee of certain precincts in Kentucky, in the case
of McKee v. Young, where the grounds of objection in no way touched the
merits or fairness of the election.
The sitting Member, in his verbal argument before the committee,
admitted that he had no doubt that when Eager, clerk, made the
certificate the book had not then been returned; but, when asked by the
chairman of the committee if he knew it had been returned since, he
said he did not know whether it had or not.
If it had been returned, he could have procured a copy, and thus
refuted the allegation. Failing to supply the lack, and especially when
his own party friends, the registrar and the county clerk, are the only
ones that could supply the list, the case on all principles of justice
must be given against him, and this precinct ought to be thrown out.
In the case of Blair v. Barrett the contestant alleged the absence of
evidence on the record that the judges had been sworn. It was held by
the committee and the House that it was the duty of the contestee to
supply this evidence, failing in which this precinct was thrown out and
Barrett lost his seat. This ruling has been since affirmed. This has
frequently been held a necessary part of the return. The Missouri law
makes the evidence of registration essential to the right to vote, and
the preservation of this evidence in a given office an imperative
requirement. Can the committee set aside this provision?
The majority of the committee have held in the recent case of Delano
v. Morgan that while the the law of Ohio specifically required the
return should show that all who voted were ``electors;'' and as this
designation was omitted in the certificate of return, the omission was
fatal. The Missouri law requires registration, requires the evidence
thereof to be filed with the clerk, requires the voter's name to be
marked ``voted'' on the list, and this list to be returned. None of
these absolutely mandatory provisions are complied with, and yet the
majority of this committee fail to see this fatal omission, which
practically shields a party friend.
Presuming the attention of the majority had not been directed to the
peculiar reasons of this requirement, we have given to it this
examination, and, in accordance with all analogous precedents, reject
the poll, and shall therefore, in our summary of result, deduct it from
each of the parties. The vote at that precinct was: Pile, 94; Hogan,
69.
872. The case of Hogan v. Pile, continued.
Evidence taken ex parte is not considered in an election case even
when given by electors as to their votes.
The State law requiring the polls to be open from ``sunrise to
sunset,'' and the polls being closed at sunset and then reopened, the
votes cast after sunset were rejected.
(3) As to certain evidence taken ex parte the report concludes:
During his concluding argument before the committee the contestant
presented the affidavits of 42 persons showing that they voted for him,
and it is insisted that the poll books show that each of these persons
were counted for the sitting Member.
The committee can not consider these affidavits as evidence, because
it was admitted by contestant that the affidavits were wholly ex parte
and taken without any notice whatever having been given to the sitting
Member and because the same were taken without any order having been
made for that purpose after the time allowed by law for the taking of
the proof had expired. * * * If, however, the testimony was admissible,
it would be very far from conclusive.
Sec. 872
The minority admit that this evidence is not strictly legal, but
contend that from its nature it should be admitted.
The clerk, being by law the custodian of election returns, ballots,
etc., on the mandate of the circuit judge, in accordance with the law
of Congress, examined and certified the numbers on the ballots counted
for each candidate as returned by the judges of election, and by
comparing these numbers with corresponding numbers on the poll list, it
is readily perceived for whom each party voted. Many well known and
influential citizens are by this comparison found apparently voting for
the sitting Member, their ballots being counted for him. Publication
was made in the newspapers of St. Louis of this fact, and these
gentlemen, to the number of about 100, sent their affidavits to the
contestant to same him of the fact that they did not vote for the
sitting Member, but did vote, each and all of them, for contestant.
This is simply a question of fact. The tickets were printed; party
lines were very closely drawn; these gentlemen are vouched for as
intelligent lawyers, bankers, merchants, doctors, mechanics, of well-
known political proclivities. When they swear they knew for whom they
voted, and when the official certificate of the clerk of the county
court certified to the numbers as counted for the sitting Member, and
numbers corresponding to each of these names are found to have been
counted for the sitting Member, and hence made fraudulently to increase
his apparent vote, cross-examination could not change these facts.
(4) The election law of Missouri required the polls to be opened from
``sunrise to sunset.'' In precinct No. 26 certain votes were taken
after sunset. The majority decline to decide whether these should be
counted or not, but as to two other precincts they say:
The committee are of the opinion that the votes which were given at
precincts Nos. 27 and 28 after sunset ought not to have been returned
or counted, because in each of those precincts the polls were regularly
closed at sunset. (See testimony of John Conzelman, pp. 132, 133; Henry
Gambs, p. 135; George B. Stone, p. 157.) After the polls were once
regularly closed at sunset it is obvious that they could not be legally
opened again during the evening with only partial notice to the voters;
such a course would open the door to any fraud that might be attempted.
The minority contend for the rejection of all these returns:
The majority do not undertake to settle the legality of this vote,
nor indeed to express any opinion upon it, yet retain the return for
the twenty-sixth precinct, because there only the voting was continued
without any formal closing of the polls. We are unwilling to unite in
this acquiescence, believing it would make a very bad precedent, and
lead to injurious consequences. The election law of Missouri requires
the polls to be opened ``from sunrise to sunset.'' The question of the
legality of votes taken after sunset, as far as our knowledge goes, has
never been adjudicated in that State; indeed we do not find that any
after-sunset vote had ever before been counted in the State. When the
return was made from the twenty-sixth precinct of a night vote, the
clerk and judges, passing on, or rather footing up, the returns from
the precincts, heard an argument from one gentleman on the subject;
after which the clerk and one county judge agreed to receive this
return and certify it up to the secretary of state. The other county
judge united in the certificate to the general return, but refused to
certify the ``after-sunset vote,'' and entered his protest against its
reception. (See testimony of John F. Long, county judge, p. 33.) The
other election judges generally refused to count and certify the night
vote, but when at last they did send it up to the clerk from the
twenty-eighth precinct he refused to receive and include it in returns.
The secretary of state, in his official certificate filed with the
committee, evidently does not regard the night vote as of equal
validity with the day vote, for he enumerates them separately, and
specifically presents the former in red ink, in contradistinction with
the latter, thus:
William A. Pile received 6,587 votes before sunset; 141 votes after
sunset; total vote before and after sunset, 6,728.
John Hogan received 6,417 votes before sunset; 93 votes after sunset;
total votes before and after sunset, 6,510.
Assuredly if he deemed after-sunset vote as legal as the day vote, he
would have made no such distinction. The undersigned deem the argument
in contestant's brief on this subject conclusive; but are unwilling,
even tacitly, to admit the legality of such votes.
Sec. 873
We state freely, if the night vote is to be counted at all it should
all be counted, and the evidence is clear to our minds that the
contestant would have a large majority; but, unwilling to open such a
door to fraud, we, without any hesitation, reject the whole after-
sunset vote, and trust the majority will, on further examination; adopt
our conclusion.
(5) There was also a sharp difference between the majority and
minority as to certain names on the voters' lists that were not found
on the registry list, the majority contending that this was the result
of innocent errors and the minority charging an intention to commit
fraud.
As a result of the examination the majority found that sitting
Member's majority had not been assailed successfully, while the
minority contended that contestant had been elected by 469 majority.
The report was debated on July 22 and 23, 1868,\1\ and on the latter
date the resolution of the minority declaring contestant elected was
disagreed to, yeas 32, nays 90. Then the resolution of the majority
confirming the title of sitting Member to the seat was agreed to
without division.
873. The Missouri election case of Switzler v. Dyer in the Forty-
first Congress.
Discussion as to authority of a secretary of state, whose duties are
ministerial only, to reject returns because of violations of
registration laws.
Returns being tainted by obvious fraud and the custodian of the
ballots having refused to show them, the returns were held valueless
and rejected.
The returns being rendered untrustworthy by action of acting judges
chosen in places of judges kept from the polls by intimidation, the
poll was rejected.
The House, overruling the committee, declined to count the vote of a
county wherein by fraudulent registration many disqualified persons had
been put on the voting lists.
On March 4, 1869,\2\ at the organization of the House, the name of
David P. Dyer, of Missouri, appeared on the Clerk's roll. As soon as
the roll had been called a question was raised as to Mr. Dyer, but on
March 5 the House voted, yeas 163, nays 4, that he be sworn in, there
being no question as to his prima facie right.
On June 29, 1870,\3\ Mr. John C. Churchill, of New York, from the
Committee of Elections, submitted a report in the case of Switzler v.
Dyer, of Missouri. The official majority of the sitting Member in the
district as finally established was 432 votes. But of the votes as
actually cast the contestant received a majority of 710 votes. The
transactions bringing about this change are thus described:
The secretary of state of Missouri, upon affidavits attacking the
registration in the county of Monroe, rejected the returns from that
county, and a majority of 432 votes being thereby shown for the sitting
Member, he gave the latter a certificate of election, upon which he was
admitted to his seat in the Forty-first Congress, pending the contest,
notice of which had been served upon him by Mr. Switzler. The duties of
the secretary of state, under the laws of Missouri, in respect to
certifying the election of Mem-
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\1\ Journal, pp. 1146, 1158, 1159; Globe, pp. 4335, 4381-4382.
\2\ First session Forty-first Congress, Journal, p. 10; Globe, pp. 3,
10.
\3\ Second session Forty-first Congress, House Report No. 106; 2
Bartlett, p. 777; Rowell's Digest, p. 250.
Sec. 873
bers of Congress, are as follows: The judges of election at each voting
precinct are required, within two days after the election, to transmit
one of the poll books kept by them (and which is required to contain
the names of the voters, of the persons voted for, the office, and the
number of votes given to each candidate, duly certified by the judges
of election) to the clerk of the county court, who, within eight days
thereafter, publicly, in the court-house, and with the assistance of
two magistrates of the county, is required to examine and cast up the
votes given to each candidate, and in the case of Members of Congress
and of the State legislature and other State officers, within two days
thereafter, to send by mail, closely sealed, and not to be opened until
the day fixed for the counting of the votes, an abstract of the votes
given for those officers to the secretary of state.
Thereupon, ``within fifty days after such general election, and as
much sooner as the returns shall all have been made, the secretary of
state, in the presence of the governor, shall proceed to open the
returns and to cast up the votes given for all candidates for any
office, and shall give to the person having the highest number of votes
for Member of Congress from each district certificates of election,
under his hand, with the seal of the State affixed thereto.'' (General
Statutes of Missouri, 63, secs. 24-32.)
It will be seen from the language of the statutes above quoted that
the duties of the secretary of state are ministerial only, and not
judicial, and they are so held by the supreme court of Missouri--in
accordance with the general current of authority, both in this country
and in this House--in the case of the State ex rel. Charles C. Bland v.
Francis Rodman, secretary of state.
The majority of the committee further conclude:
It is true that in at least two cases beside the present (Butler v.
Lehman and Morton v. Daily, Bartlett's Contested Election Cases, 353,
402), both of which arose in the Thirty-seventh Congress, where
municipal officers assumed to act judicially and to reject returns
believed by them to be affected by fraud and thereupon issued
certificates to persons who would not have been otherwise entitled to
them, such certificates were held sufficient, as in this case, to
entitle the holder to the seat, prima facie, and pending the contest.
But such action being without authority of law has no weight in
deciding the contest upon the merits, when, if necessary, we go back of
all certificates and inquire into the action and right of the
individual voter at the polls; and it has been referred to here only as
a part of the history of this case and to explain how the contestant,
having a majority of the votes cast, happens to occupy the position he
does in this contest.
The minority views, presented by Mr. John Cessna, of Pennsylvania,
say:
It is not necessary to discuss the power or authority of the
secretary of state to reject the vote, because it is admitted by the
majority of the committee that this question does not enter into the
case. But it appears from a letter of the secretary of state, filed by
the contestant himself as evidence (p. 62 of the record), that the
secretary of state awaited the action of the people's representatives
in the legislature before he refused to open and cast up the vote of
Monroe County (p. 61):
``The letter from Colonel Switzler is received. I have left the whole
matter of Monroe and other counties to the legislature for decision. I
have not thrown out any county, but simply refuse to cast up until the
legislature decides that I shall do so. Not until the legislature has
acted upon this matter can I give out copies of documents relating to
this subject.
``Respectfully,
``Francis Rodman, Secretary of State.''
It can not well be denied that if the case of Switzler v. Anderson,
in the Fortieth Congress, was correctly decided, then the conclusions
of the majority of the committee in this case are wrong. The same
contestant was here in that case claiming admission on the ground of
the rejection of the vote in Calloway County for reasons similar to
those now urged for the rejection of Monroe County in 1868.
The case turned, therefore, on the question whether or not the vote
of Monroe County should be counted. The majority report says:
The reasons given why it should not be counted are that the
superintendent of registration of the senatorial district of which that
county is a part corruptly agreed, as is alleged, with the political
friends of the contestant that he would appoint registering officers in
his district who would register all white male citizens over the age of
21 years without regard to their qualifications, as fixed and
prescribed by the constitution and laws of Missouri, on condition and
in consideration that he should receive the
Sec. 873
support of the political friends of the contestant for the office of
sheriff * * *; and that, in pursuance of this agreement officers of
registration were appointed who would be likely to carry out this
agreement; and a large number of persons, disqualified under the law,
were permitted to register and to vote in the county of Monroe.
The state of facts in this county was examined at length and
carefully to determine whether the registration was fraudulent, the
majority contending that it was not, and the minority that it was.
Both the majority and the minority concurred in rejecting the polls
at two places:
(a) At Salt River Township in Adrian County:
The place designated by the county court for holding the election in
this township was the tobacco factory on the public square. Being
unable to get in here, the sheriff made proclamation that the election
would be held at Ricketts's office, on the square, to which place the
people present went; and the judges of election not being present, the
voters present chose judges, to whom the sheriff delivered the ballot
box and poll books, and also a list of qualified voters, certified by
the clerk of the county court (pp. 50, 63, 77). Thus far the
proceedings seem to have been regular, although there is evidence to
show that it was the intention to have held such an election by judges
other than the legal judges, had the latter been present in time to
open the polls at 7 a.m., as required by law (p. 205).
The list of qualified voters for this township will be found on pages
201-203 and contains 217 names; but the poll list kept at this
election, which is found on pages 192-194, shows that 519 votes were
received. The judges further, in making this return, certify that the
contestant received 146 votes, the sitting Member 71, or the precise
number of qualified voters. It would be very unusual, although
possible, that the entire list of persons registered as qualified
should have been present to vote; but it is made the duty of the judges
of election (Laws of Missouri, 1868, p. 136, sec. 17) to write the word
``voted'' after the name of each person on the list who shall vote, and
on producing the list used at this poll (pp. 203-205) it is found that
74 names have no entry against them (p. 81), showing that they did not
vote on that day. Three of those whose names are on the qualified list
are called as witnesses--Alfred Hambleton, p. 72; W. W. Cedon, p. 70,
and Miles J. Burns, p. 76--and swear that they were not present and did
not vote at this poll on that day. There was still a method by which
the real vote of the qualified voters of that township could have been
ascertained. The ballots themselves were yet in the hand of the clerk
of the county court, and so marked, if the law had been complied with,
as that the ballot of each qualified voter who voted could be
identified. The clerk of the county court, who was the political friend
of the contestant, and of the sheriff, who seems to have manipulated
affairs at that poll was summoned as a witness by the sitting Member
and produced the ballots, but refused to open them or permit their
examination. The returns themselves we think so tainted by obvious
fraud and violation of law as to be valueless, and, not being permitted
to be corrected by the means which the law of Missouri provides, should
be rejected.
(b) In Wilson Township:
On the morning of the day of election in this township word was sent
to two of the judges of election appointed by the board of registration
that it would be dangerous for them to go to the election. The
circumstances attending the receipt of these messages were such that
they thought it advisable not to go to the polls until they could
gather some of their friends to accompany them armed. They did so, and
were thereby so delayed that when they reached the polls the time for
opening them was passed, and other judges had been chosen by the voters
present. The circumstances are such as seem to show that this result
was one object of the messages they had received (pp. 65, 80). The list
of qualified voters in this township will be found at pages 204-205,
and numbered 78. But the poll list shows that the acting judges of
election at this poll received 151 votes, of which they marked 93 as
accepted, and they returned 91 votes as cast for Member of Congress, 49
for the contestant and 42 for the sitting Member. But a comparison of
the list of qualified voters with that of persons who voted shows that
15 of the former did not vote, so that while only 63 qualified voters
in the district have voted, 91 votes are returned as having been cast
by qualified voters for Members of Congress.
The clerk of the county court in this county having already, in the
case of Salt River Township in the same county, refused to produce and
open for inspection the ballots cast at this election, it was
Sec. 874
not necessary to renew the attempt to get access to the ballots in this
case, and the vote of this township, for the same reasons as in the
case of Salt River, should be rejected, reducing thereby the vote of
the contestant to 6,091, and of the sitting Member to 5,463, and the
majority of the former to 628.
The majority of the committee reported resolutions to unseat sitting
Member and seat the contestant.\1\
The report was debated on July 7,\2\ the question of fraud on the
part of the registration officer entering into the decision largely. On
behalf of the minority of the committee resolutions were offered
declaring sitting Member entitled to the seat and contestant not
elected. The resolutions of the minority were substituted for those of
the majority by a vote of yeas 109, nays 55.
So the recommendations of the majority of the committee were
overruled, and the sitting Member retained the seat.
874. The Pennsylvania election case of Myers v. Moffet in the Forty-
first Congress.
Reference to a discussion as to the validity of certain
naturalization papers.
Where election officers receive illegal votes with a guilty knowledge
that they are illegal the entire poll is rejected.
Votes taken before the legal hour for opening the polls, by officers
having fraudulent intent, are valueless.
Instance wherein the Elections Committee, in passing on the intent of
election officers accused of fraud, took into account the conduct of
those officers at a subsequent election.
Disturbance at the polls, incident to the removal of a contestant for
the office of election judge, does not vitiate the poll.
On April 6, 1869,\3\ Mr. Job E. Stevenson, of Ohio, from the
Committee on Elections, submitted the report in the case of Myers v.
Moffet, from Pennsylvania.
The official returns gave sitting Member a majority of 159. The
majority of the committee found frauds and irregularities sufficient to
overturn this majority and produce a majority of 647 for the
contestant.
A question as to the validity of supreme court naturalization papers
was entertained at considerable length in both the report and the
minority views, but did not enter into the decision of the contest.
The issues bearing on the result were three:
(1) The majority of the committee decided that the polls of the
seventh division of the Seventeenth Ward of Philadelphia should be
rejected because the election officers disregarded certain provisions
of law claimed to be mandatory. The report says:
Two hundred and forty votes might have been illegally cast for either
candidate in a large district without causing the loss of more than
that number to either, when proved, but 200 or more votes can not be
received by election officers with a guilty knowledge that they were
illegal, or in gross violation of the election laws, which they were
bound to consult, without entailing a stronger penalty. In such cases
not only State courts but legislatures and Congress have not hesitated
to declare the whole poll void and of no effect, except as to such
votes as either party chooses to save by proof of their legality.
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\1\ It should be noted that sitting Member belonged to the dominant
party in the House and contestant to the minority party.
\2\ Journal, p. 1172; Globe, pp. 5305-5313.
\3\ First session Forty-first Congress, House Report No. 9; 2
Bartlett, p. 564.
Sec. 874
It appears in Pennsylvania, and particularly in Philadelphia, where
these wrongs are of frequent occurrence, the courts have uniformly
declared such to be the law.
The contestant's brief quotes the acts of assembly governing
elections.
That of the sitting Member does not pretend to set up a different
standard of action.
Here there is and can be no dispute. Under the act of 1839, where a
person is not assessed, in order to entitle himself to vote he must
answer certain questions under oath, as to tax, age, residence, etc.,
and in addition prove his residence by the oath of a qualified voter of
the division, and in all such cases it is ``the duty of the
inspectors'' to require such proof whether the vote be challenged or
not.
Even if assessed, in case of a challenge they must require the proof.
Where the vote is taken, the inspectors must add to the list of
taxables furnished them by the commissioners, note of the fact, and of
the name of the voucher or person making such proof for the voter. The
judges have said, in a number of contested election cases, that nothing
can dispense with these requirements. The committee has stated that the
law is not disputed. Now, contestant proves that in the sixth division
of Seventeenth Ward 98 such unassessed persons were permitted to vote,
and in the seventh division of same ward 72 without being sworn
themselves or producing a voucher. That in the sixth the list of
taxables, which is the index and test of the conduct of an election,
was missing from the box. In the seventh it was found, and corroborated
contestant's witnesses, as it failed to show that any proof had been
required of any unassessed voter. If incumbent denied this there might
be some dispute to settle; but his only reply is, ``This is an
unreliable objection. * * * Among nine election officers at the window,
one or more would know the voter personally, and in such cases voters
are continually recognized.''
If ``in such cases voters are continually recognized,'' it must be in
just such election districts as the sixth of the Seventeenth Ward,
which, it appears, was discarded by the court of common pleas, only
last year, for that very cause. Congress can certainly never lend its
sanction to such a shameful breach of law.
The act of 1939 fines any election officer who knowingly takes 1 such
vote without proof, $200; and the act of April 16, 1866, inflicts a
penalty of $1,000 and an imprisonment of two years for knowingly taking
10 such votes or upward without proof.
With these laws before us, your committee can not fail to pronounce
these polls violated by such a crime against the rights of the
citizens.
Incumbent's counsel reply that in the sixth division of the
Seventeenth Ward 5 of these votes were cast for Mr. Myers, and in the
seventh that it is not fully proved for whom they were cast. Were this
true it would not alter the matter. On the contrary, the very
uncertainty of the result caused by the fraud would tend to destroy all
the returns. But it is not true. In the sixth division, Seventeenth
Ward, 55 votes were returned for Mr. Myers. He was able to prove 51 of
them. Except the remaining 4, and the 5 of those unassessed who voted
for him, the 87 unassessed, and all others proved to be illegal, must
have been cast for Mr. Moffet.
The report went on to show that challenges in these divisions were
disregarded, and other circumstances showed a fraudulent intent.
The minority views \1\ do not admit that the evidence as to these
wards shows a fraudulent intent, and say:
It is a well-settled principle of law that no citizen shall be
deprived of his vote or be disfranchised by reason of any neglect on
the part of an officer of the election; hence from the evidence we
conclude there is neither reason nor justice in throwing out the entire
vote of this division, and in the absence of testimony showing that the
87 who were unassessed and voted were fraudulent, should either
invalidate the entire poll or be deducted from either candidate.
That same state of facts exists as to the seventh division of the
Seventeenth Ward, except that the contestant made effort to prove his
entire vote as cast for him in this division. In this he failed, being
able to show but 40 out of 85 given in by the election returns.
Seventy-two unassessed votes are again impugned in this division; and
it is manifest they were as likely to have been given to one as the
other of the candidates.
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\1\ Minority views presented by Messrs. Samuel J. Randall, of
Pennsylvania, and A. G. Burr, of Illinois.
Sec. 874
(2) In the sixth division of the Seventeenth Ward at the beginning of
the day there appeared several vacancies on the board of election
officers. The law of Pennsylvania required a delay of an hour before
opening the polls where there were vacancies in the board of officers.
In this ward the Democratic inspectors sent out the only Republican
officer in search of others, telling him to ``stay out the first
hour.'' This he did, but the poll was opened, and that hour resulted in
69 votes for Moffet and 8 for Myers. The committee conclude all the
votes cast in that hour are illegal on both sides. ``Votes taken after
the time of closing the polls are all illegal on both sides (4
Pennsylvania Law Journal, p. 341), and any taken before the proper hour
are equally valueless,'' say the committee. That there may be no doubt
of the criminal intent in this case, the committee claim the right to
bring in reference to the conduct of these same officers at an election
a few weeks later, when they manifestly connived at election frauds.
(3) On behalf of the sitting Member it was objected that the poll of
the tenth division of the Nineteenth Ward should be thrown out because
of riot.The majority of the committee find the following facts and
conclusions:
The misunderstanding arose from the subdivision of the tenth precinct
of the Nineteenth Ward, part being still called the tenth and the rest
the fourteenth. By this action of councils, Mr. Addis, who had been
elected judge of the old tenth division, became a resident of the new
one-the fourteenth. In such cases the law is explicit.
By the act of April 28, 1857, section 1, Pamphlet Laws, page 329, it
is provided--
``That whenever a new election division or divisions has been or
shall be created in any of the wards of the city of Philadelphia by the
councils of said city, the officers to conduct the election next
thereafter occurring shall be chosen as follows: If such division shall
be formed entirely out of an old division, the officers elected to
conduct the election in said division shall appoint the officers for
the new division, the judge appointing the judge and each of the
inspectors appointing an inspector.''
Addis, not aware of this law, had given authority to Hooper to act in
the old, but on ascertaining that his appointment would have to be for
the new division, he and two of the other legally chosen officers of
the old division presented themselves at that poll demanding to act.
This was refused by Hooper, whereupon Addis read the law to him,
stating that he only desired to do what was right, and after a second
refusal Simpson also read the law to him. Unless Hooper should leave,
the whole poll might really have been invalid. The police were
accordingly summoned, and the violence complained of was no more than
necessary to remove Hooper. The others left, Brower among them, and
after waiting an hour the citizens chose officers to supply the
vacancies.
The committee is compelled to decide that Addis was the legal judge,
and that the officers who acted with him were all legally chosen.
It is urged with some force in the brief for the sitting Member that
he lost many votes in that division by these occurrences.
It is certain that a number of Democratic voters, apparently in the
hope that the whole vote would be declared illegal, some of whom were
dissuaded from voting (see p. 193), absented themselves from this poll.
Two witnesses guess at the number thus lost, and one other (p. 195)
states that the Democrats in November polled 82 more votes there.
Ignorance of the law on the part of citizens will not operate to throw
out a poll. There was no fraud here. No citizens were deprived of the
opportunity of voting. On the contrary, Democrats who wished to vote
were furnished tickets or told where they could get them. (See p. 189.)
Suppose your committee should undertake to rectify the error of those
who failed to vote; by what standard of law shall it be done? Fraud of
the officers it has been shown may disfranchise even those who voted
honestly; but to reject this poll for the purpose of correcting the
error of some of the citizens would disfranchise 173 Republicans,
because, at the farthest, 82 Democrats had been dissuaded from voting,
who it appears deposited their ballots in November and might or might
not have done so in October under other circumstances.
Sec. 875
The majority of the committee reported resolutions declaring sitting
Member not entitled to the seat and that contestant was elected and
entitled to the seat.
The report was debated April 8 and 9, 1869,\1\ and, on the latter
day, a proposition of the minority declaring sitting Member entitled to
the seat was disagreed to, yeas 40, nays 112.
The resolution declaring sitting Member not entitled to the seat was
then agreed to, yeas 107, nays 39. And the resolution declaring
contestant elected and entitled to the seat was then agreed to, yeas
113, nays 38.
Mr. Myers then appeared and took the oath.
875. The New York election case of Van Wyck v. Greene in the
Fortyfirt Congress.
Form of resolution extending the time for taking testimony in an
election case.
Votes cast by persons entitled to naturalization, but naturalized by
illegal process, were rejected.
Contestant's notice not having specifically demanded the rejection of
an entire precinct, the Committee on Elections corrected the poll,
although rejection appeared justifiable.
At a poll where votes were cast by disqualified persons, the return
was corrected on the testimony of persons who assumed to know how the
disqualified persons voted.
The House declined to declare a seat vacant in a case wherein
unsatisfactory proof of contestant's election was reenforced by bad
conduct of election officers favorable to contestee.
The House being organized, but a quorum having failed, the Speaker
declined to administer the oath to a contestant who had been declared
elected.
On March 22, 1869,\2\ Mr. John Cessna, of Pennsylvania, from the
Committee on Elections, reported the following resolution, which was
agreed to:
Resolved, That in the matter of the application for an extension of
time to take testimony in the contested case of Van Wyck against
Greene, twenty days be allowed to the sitting Member to take evidence,
to be confined to evidence to rebut that taken by contestant, and that
a like period of twenty days be allowed at the expiration of that
period to the contestant if desired by them.
On February 3, 1870,\3\ Mr. R. R. Butler, of Tennessee, submitted the
report on the merits. It appeared that the returned majority of the
sitting Member was 323. Fraud and irregularities were charged on both
sides. The main points of the case are:
(1) Contestant alleged fraud and illegality in issuing naturalization
papers. The report says at the outset:
The law was decided by the supreme court of the State of New York
(see Barbour's Reports, vol. xviii, p. 444). In that case the court
said the powers upon courts in admitting aliens to the rights of
citizenship are judicial and not ministerial or clerical, and
consequently can not be delegated to the clerks, and must be examined
by the court itself. An examination must be made in each case suf-
-----------------------------------------------------------------------
\1\ Globe, pp. 650, 683-693; Journal, pp. 178, 211-214.
\2\ First session Forty-first Congress, Journal, p. 96; Globe, p.
202.
\3\ Second session Forty-first Congress, House Report No. 22; 2
Bartlett, p. 631.
Sec. 875
ficient to satisfy the court of the facts upon which the application is
based, and upon which it must fail if not proven to the satisfaction of
the court. The court, in the same case, adds: ``The practice of clerks
of courts in issuing certificates of citizenship, without any
application being made to the court and on proof of residence only, is
an abuse which needs be corrected.''
After analyzing the testimony, the majority of the committee say:
The proof fully and satisfactorily establishes the fact that the
clerks and deputies issued naturalization papers at various places
other than in court. Louis Cuddeback swears that at one court he
appointed four deputies to make out naturalization papers, and that
they operated in a jury-room, and that he (Cuddeback) made it a rule to
visit said jury-room and see how they were getting along and to see
that they did it right. * * *
The testimony on the subject of naturalization is very full, and
clearly establishes the fact that the law was totally disregarded and
frauds perpetrated. The clerk and all his deputies, regular and
special, were Democrats, and worked in the interest of their political
friends. It further appears from the evidence that,'before the said
election, public attention was directed to the frauds practiced in
obtaining naturalization papers in said county of Orange, and that the
district attorney made an effort to have the matter investigated by a
grand jury of the county; and that after the subject had been before
the grand jury several days the foreman notified the district attorney
that he would not act on the cases, and had destroyed a part of the
testimony taken before the jury, and would not surrender the same to
the district attorney, as the law directs. And the facts and
circumstances warrant the assertion that the Democratic judge winked at
the same.
The minority \1\ minimize the testimony tending to show
irregularities in naturalization, and say:
But the fact stands out clear as testimony can make it, that the men
so branded wholesale as wrongfully holding papers were, with very few
exceptions, entitled to certificates of naturalization. A
``conspiracy'' to secure certificates for those legally entitled to
them would be senseless and is not charged. On the contrary, the theory
of the contestant is, that it was a conspiracy to procure certificates
for parties not legally entitled; and to show that they were not
entitled, contestant commenced the examination of these newly
naturalized citizens (pp. 22-30), and after being questioned, 26 of
them developed the fact that each one of them was legally entitled to
papers. At this point he dismissed the remainder, some of whom were
afterwards examined by contestee and all were shown to be legally
entitled to naturalization papers.
In the debate it was retorted \2\ that it was ``not the right to
naturalization, but naturalization itself, awarded by the proper
judgment of a court of competent jurisdiction, and this alone'' that
gave citizenship.
(2) The attempt to trace to the ballot box the votes cast by those
illegally naturalized and determine for whom they were cast led to
sharp division of opinion.
(a) In the First Ward of Newburgh the majority of the committee find
that 140 persons not entitled to vote cast their votes for sitting
Member. The majority found that the inspectors of election refused to
put an oath to persons challenged, although in so refusing they
directly violated the statute. The majority of the election officers
were of sitting Member's party. Sitting Member's majority was 131.
(b) The majority of the committee find that at Hamptonburg the
inspectors of election acted ``unlawfully and corruptly.'' They
improperly registered alleged voters, and on election day they refused
to put the oath to persons challenged. Sitting Member's majority was
returned at 105. The majority of the committee deduct 28 from sitting
Member.
-----------------------------------------------------------------------
\1\ Minority views were signed by Messrs. A. G. Burr, of Illinois, S.
J. Randall, of Pennsylvania, and P. M. Dox, of Alabama.
\2\ By Mr. Churchill, Globe, 1347.
Sec. 876
(c) In Goshen also the election inspectors dispensed with the oath,
and persons were allowed to vote on the irregular naturalization papers
in spite of the efforts of the inspector belonging to contestant's
party. Sitting Member's majority in the district was 129.
The majority conclude as to these precincts:
The majority for contestee in the three last-mentioned districts, to
wit, First Ward, Newburgh, town of Hamptonburg, and first district
Goshen, was 365. The committee is of opinion that the irregularities
and misconduct of the inspectors of the election at said districts were
sufficient to throw out the entire vote of said districts, but does not
recommend the same, as the contestant did not specifically demand the
same in his notice to contestee. In all of said precincts actual
fraudulent voting was proven; misconduct, illegality, and partiality of
inspectors, all go to prove that the allegations of contestant were
true that a conspiracy was formed to issue naturalization papers, and
to prevent a judicial investigation of the frauds and to prevent an
investigation of the many wrongs perpetrated by the friends of
contestee.
It being decided not to throw out the entire polls of these places,
the majority of the committee propose to purge the polls of these and
other precincts by the testimony of people who assumed to know how
electors voted.
As to the validity of this testimony the minority took issue, and
especially in the debate on the floor. Passages from the testimony were
quoted to show that no conclusive evidence was given to connect illegal
voters with votes found in the box for sitting Member. Near the close
of the debate one Member preferred to rest his vote on the propriety of
throwing out entirely the vote of the three precincts, rather than on
reliance on the process of purging.
The debate occurred on February 15 and 16,\1\ and on the latter date
a vote was taken on a proposition of the minority declaring sitting
Member entitled to the seat, and it was disagreed to--yeas 56, nays
121.
A proposition offered by Mr. Samuel J. Randall, of Pennsylvania,
declaring the seat vacant, was disagreed to without division, the yeas
and nays being refused.
The resolution unseating sitting Member was then agreed to without
division; and the second resolution of the committee, seating
contestant, was agreed to--yeas 56, nays 121.
The usual motion to reconsider being made and laid on the table, a
motion to adjourn was made. The vote being taken, the lack of a quorum
was developed.
Thereupon, as a question of privilege, a demand was made that Mr. Van
Wyck be sworn in.
The Speaker \2\ demurred,\3\ saying:
The Chair is in serious doubt whether, in the absence of a quorum, a
Member can be sworn in.
The House soon after adjourned without a quorum.
On the next day, February 17,\4\ a quorum being present, Mr. Van Wyck
appeared and was sworn in.
876. The Pennsylvania election case of Taylor v. Reading in the
Forty-first Congress.
The Elections Committee declined to revise the returns on the
strength of the tally lists, the election officers not being called or
a recount of ballots made.
-----------------------------------------------------------------------
\1\ Globe, pp. 1305, 1339-1351; Journal, pp. 336-338.
\2\ James G. Blaine, of Maine, Speaker.
\3\ Globe, p. 1351.
\4\ Journal, p. 340; Globe, p. 1373.
Sec. 876
United States soldiers residing at the time of enlistment without the
precinct and not having the intention of making a permanent residence
therein were held not to be legal voters.
Votes of paupers were rejected, although the attorney-general of the
State had given an opinion that they were legal voters therein.
On March 29, 1870,\1\ Mr. John Cessna, of Pennsylvania, from the
Committee on Elections, submitted the report of the majority \2\ of the
subcommittee in the case of Taylor v. Reading, of Pennsylvania. This
case involved largely an exploration of questions of fact, but a few
general principles were discussed:4
(1) A number of votes depended on whether reliance should be placed
on the return from the precinct or on the tally lists, from which the
returns were made up. The majority seemed inclined to disregard the
tally lists. The sitting member having asked to be credited with
certain votes shown by the tally list, which apparently was required to
be preserved by the prothonotary, the majority say:
To allow this credit requires us to go behind the returns. The
incumbent having asked this at our hands, should have called the
officers of the election and shown the list of voters, or, at least,
the aggregate thereof, or asked for a recount of the ballots. Nothing
of this kind has been requested. On examining the tally list of the
seventh division, Twenty-third Ward, we find an error of 6 against the
contestant, or rather a difference of 6 between the tally list and the
returns from this precinct. We have, therefore, concluded to stand by
the returns in each case, especially as the correction of both would
make no difference to either party.
The minority do not agree to this, but say:
As a general principle primary evidence is preferable to secondary
evidence. The ballots are the primary or highest evidence of an
election, and a Pennsylvania statute requires these ballots to be
preserved for the purposes of contested elections.
The next best evidence are the tally lists. These are cotemporaneous
records made at the very time of voting. The hourly report of the vote
and the returns in the prothonotary's office are made up from the tally
lists; are mere copies of those lists, and original documents are
always better evidence than copies. The tally lists are preferable
evidence to reports made from them.
The majority of the committee reject the allowance of these errors in
the tally lists, on the ground that the ballot boxes were not examined
or asked to be examined. They were not examined in the district where
the testimony was taken, because the courts have decided that the
Committee of Elections of Congress were the only competent authority to
send for them and examine them, and that they were asked to be examined
one of the committee making the majority report will cheerfully admit.
The sitting Member rested his case, so far as the tally lists were
concerned, on the examination of the ballot boxes and a recount of the
ballots, but the majority of the committee saw fit to reject these
gains without an examination, and the only one that could test their
truth or falsity In the absence of the ballot boxes, or a refusal to
recount the ballots, the committee must take the highest order of proof
presented to them, which are the tally lists certified to them by the
seal of the court having charge of them. They are conclusive, and
especially so when the committee refuse to avail themselves of the
primary evidence--the ballots.
(2) A question arose as to the votes of certain soldiers:
It is in proof that 20 soldiers of the United States Army, stationed
at Frankford arsenal, voted for the incumbent in the eighth precinct of
the Twenty-third Ward. Had these men a right to vote there? It is
entirely immaterial to discuss the question as to whether they could
have voted elsewhere or not. The only question before us is as to
whether they were entitled to vote at that particular poll, where the
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, House Report No. 50; 2
Bartlett, p. 661.
\2\ Mr. Samuel J. Randall, of Pennsylvania, filed minority views.
This case was submitted by a subcommittee of three. Mr. Eugene Hale, of
Maine, concurred with Mr. Cessna.
Sec. 876
vote was actually cast. To entitle a person to vote at any poll in
Pennsylvania, under the laws of that State, he must have at the time of
the election an actual residence in the precinct. Mere personal
presence will not fulfill the requirements of the law. There must be a
residence, and it has been well settled that residence is a question of
intention. Had any of those men any intention to be at that particular
place, or in that particular precinct, on that or any other day? From
the necessity of the case they could not. They were in that precinct
not by their own volition, but by command of their military superiors.
An order issued to transfer them to Fort Lafayette on October 1 would
have taken them far away from the precinct. In the case of Bowen v.
Given it was expressly decided that an enlisted man did not gain a
residence under similar circumstances. So, too, in the case of Howard
v. Cooper, thirty-sixth Congress (Contested Election Cases, 1843 to
1865, p. 275), it was held under the law of Michigan that to be
entitled to vote a man must have come into the State and township or
ward with the intention of making it his permanent residence, and the
law of Pennsylvania is quite as strict on this point as that of any
other State, for if challenged at the poll the person offering the vote
must also himself swear that his bona fide residence in pursuance of
his lawful calling is within the district. (See Burden's Digest, Laws
of Pennsylvania, edition of 1853, pp. 46 and 286.) How could a man so
swear when he is there at the command of a power superior to his own
will? As bearing particularly upon this point we add that in 1862 a
contest arose in the State of Pennsylvania in regard to the right of
soldiers to vote in camp or in quarters. In the trial of this case the
constitution of Pennsylvania and the several statutes of the State
regulating this subject or question were fully and elaborately
considered. The case is entitled Chase against Miller, and reported in
5 Wright, pages 403 et al. The supreme court of the State held--
First. That residence, in the constitution, is the same as domicile--
the place where a man establishes his abode, makes the seat of his
property, and exercises his civil and political rights.
Second. The right of a soldier to vote under the constitution is
confined to the election district where he resided at the time of his
entering the military service.
After quoting from the opinion the report proceeds to divide the
soldiers into three classes:
The first class consists of persons who resided in this precinct at
the time of their first enlistment, and consequently did not change
residence. There are three of this class, to wit, James Cleary, Peter
Hobin, and James Larkin, and their votes are allowed. The second class
consists of those persons who had enlisted but once, who resided at the
time of their enlistment outside of this precinct, and who had done
nothing to indicate any determination on their part to change their
residence, and who had made no election of this particular place as
their place of residence since the time of their enlistment. On the
contrary, two of this class testified that at the very time they voted
their families resided elsewhere, and it is clearly proved that the
entire class, seven in number, left the place soon after the election
and have not returned. They were all single men except these two before
referred to. Their names are Richard O'Leary, Owen Sheridan, Robert
Armstrong, John Kennedy, John Laffey, Frederick Kopp, and Lewis
Bingham. These 7 votes were rejected, being a part of the 51. The third
class consists of those who did not reside in the district at the time
of their enlistment, but remained for some years, in some cases
reenlisting once, twice, and in one case three times. Most of these men
have either purchased or rented property, had families in the district,
and had given other evidences of an intention to elect this precinct as
the place of their abode. These 10 votes are allowed.
The minority do not agree to the rejection of the 7 votes:
Since the action of the Senate of the United States on the 1st day of
April, 1870, on the admission to a seat in the Senate of General Ames,
who at the time of his election (in the language of the majority of the
committee in this case as touching this soldier vote) was not in
Mississippi ``by his own volition, but by command of his military
superiors,'' I am compelled, therefore, to say that I can not coincide
with the majority of the committee in their rejection of 7 of the votes
known as the soldier vote.
I can not agree that any of these votes should be rejected. In
admitting any of the 20 votes thus attacked, you must admit all. You
can not admit a part and reject a part. The integrity of these voters
is nowhere impeached. It is no reason for disfranchisement that these
men were soldiers and lived at a United States arsenal. They were what
is known as the ``permanent party'' at a United
Sec. 876
States station; they had been there for years, enlisting and
reenlisting, marrying and raising families. Are such men to be
disfranchised?
In Bowen v. Given, Justice Cartter, of the District of Columbia, held
``that an officer or enlisted man neither gained nor lost a residence;
his residence was where he enlisted.'' In view of this decision, I
insist that when the term of enlistment expired, these soldiers, having
the animus manendi, gained a residence eo instanti in this division,
and it was their residence at the time of their reenlistment; and being
so, they were not disqualified by reason of nonresidence.
(3) The majority rejected certain votes of paupers, regarding the
right to do so too clear to demand explanation. The minority object to
this, citing the opinion of Attorney-General Benj. H. Brewster, of
Pennsylvania, who, in a contested election case in the senate of
Pennsylvania, had given an opinion that a pauper who was in other
respects qualified to vote could not be deprived of the suffrage:
Such a person is a qualified elector and can vote, and his vote cast
is a lawful vote and as good as any man's vote, and it ought to be so.
The Constitution establishes this, and it does not disqualify him
because he is poor. That does not deprive him of his freedom or his
citizenship.
They are amenable to the law, and being so, upon the very fundamental
principles of our government have a right to be represented and to say
who shall make the laws. It is not property or poverty that rules here.
It is the man, responsible to God and responsible to the law. To say
otherwise would make poverty worse than a crime. The pauper is bound by
every law upon the statute book, and is protected by every provision of
the Constitution, as much so as the wealthiest, wisest, or most
successful man in the community. Sickness, the calamities and accidents
of life, may reduce men to this sad condition. That is bad enough. The
law never intended to add to his miseries by making him the only slave
that remains in our Republic. All the duties of life bind him; he can
make a contract, he can be obliged to testify, he can marry, he can sue
and be sued, he is only restrained and bound by rules as every one is
who lives in any institution. Persons in hospitals, asylums, factories,
homes for disabled soldiers, public works, Government shops, and all
kinds of public and eleemosynary institutions, as well as private
establishments, are bound by fixed rules that are enacted for the
preservation of good order, to maintain discipline, and carry out the
purposes of the establishments. This is all that he is subjected to,
and these rules and the restraints of the house he can relieve himself
from at any moment by asking for his discharge. The poorhouse is his
residence; it would be there that process of law, criminal or civil,
would be served upon him; and it is from that residence he may vote,
provided he has lived there ten days preceding the election and
conformed to the requirements of the law. If to receive public support
would be legal cause of disqualification, we must not forget that even
now a large number of white and black citizens of the southern portion
of this nation are still receiving and levying upon the supplied bounty
of the Government. What would be their condition? For some of those who
have received and still receive that bounty were once the wealthiest
and best bred, and the most accomplished, and sometimes reputed the
wisest people in this region. By the calamities of war they are reduced
to want; but God forbid that they or any one should by any calamity be
stripped of their right of manhood and brutalized down to that slavery
from which we have been, by God's providence, all emancipated.
The minority also cited from the minority report in the case of
Foster v. Covode.
On the face of the returns the sitting Member received 41 majority.
After the settlement of questions of law and fact the majority found
that in reality there should be a majority of 72 for the contestant.
The minority, on the other hand, found that the sitting Member had a
majority of 28 votes.
The report was debated in the House on April 13,\1\ and on that day
the resolution declaring Mr. Reading not entitled to the seat was
agreed to, yeas 114, nays 45. Then the resolution declaring Mr. Taylor
entitled to the seat was agreed to without division.
Mr. Taylor then appeared and took the oath.
-----------------------------------------------------------------------
\1\ Journal, pp. 615-617; Globe, pp. 2650-2660.
Sec. 877
877. The Senate election case of John P. Stockton, from New Jersey,
in the Thirty-ninth Congress.
A committee report that in the absence of any law, State or national,
a joint meeting of the two houses of a legislature may prescribe that a
plurality vote shall elect a United States Senator was reversed by the
Senate.
In 1865 \1\ the Senate considered the right of a legislative joint
convention to adopt a plurality rule for the choice of a United States
Senator. The case is thus stated in a report \2\ of the Judiciary
Committee, submitted by Mr. Lyman Trumbull, of Illinois:
The Committee on the Judiciary, to whom were referred the credentials
of John P. Stockton, claiming to have been elected a Senator from the
State of New Jersey for six years from the 4th day of March, 1865,
together with the protest of certain members of the legislature of said
State against the validity of his election, submit the following
report:
The only question involved in the decision of Mr. Stockton's right to
a seat is whether an election by a plurality of votes of the members of
the legislature of New Jersey in joint meeting assembled, in pursuance
of a rule adopted by the joint meeting itself, is valid. The
protestants insist that it is not, and they deny Mr. Stockton's right
to a seat, because, as they say, he was not appointed by a majority of
the votes of the joint meeting of the legislature.
The legislative power of the State of New Jersey is vested by the
State constitution in a senate and general assembly, which are
required, for legislative purposes, to meet separately, but which, for
the appointment of various officers, are required to assemble in joint
meeting; and when so assembled are, by the constitution itself, styled
the ``legislature in joint meeting.''
The constitution of New Jersey does not prescribe the manner of
choosing United States Senators, as, indeed, it could not, the
Constitution of the United States having vested that power, in the
absence of any law of Congress, exclusively in the legislature; but it
does constitute the two houses one body for the purpose of appointing
certain State officers. The statute of New Jersey declares that
``United States Senators, on the part of that State, shall be appointed
by the senate and general assembly in joint meeting assembled;'' but it
does not prescribe any rules for the government of the joint meeting
nor declare the manner of election.
The practice in New Jersey has been for the joint meeting to
prescribe the rules for its own government.
In 1794 fifteen rules were adopted, the first two of which are as
follows:
``1. That the election of State officers during the present session
be viva voce, unless when otherwise ordered, and that all officers be
put in nomination at least one day before their election.
``2. That the chairman shall not be entitled to vote except in case
of a tie, and then to have a casting vote.''
The other thirteen rules related chiefly to the method of conducting
the proceedings. Each joint meeting which has since assembled has
adopted its own rules, usually those of the preceding joint meeting,
sometimes, however, with additions or exceptions.
In 1851 the following additional rule was adopted:
``Resolved, That no person shall be elected to any office, at any
joint meeting during the present session, unless there be a majority of
all the members elected personally present and agreeing thereto.''
In 1855 the joint meeting, after adopting the fifteen rules of the
preceding joint meeting, added the following:
``That all candidates for office, upon receiving a majority of the
votes cast by this joint meeting, shall be declared duly elected.''
The joint meeting of 1861 adopted the rules of the preceding joint
meeting for its own government, among which were the following:
``1. That the election of State officers during the present session
be viva voce, unless when other wise ordered.
-----------------------------------------------------------------------
\1\ Election cases, Senate Doc. No. 11, special session Fifty-eighth
Congress, p. 322.
\2\ Report No. 4, First session Thirty-ninth Congress.
Sec. 877
``15. That in all questions the chairman of the joint meeting be
called upon to vote in his turn as one of the representatives in the
senate or assembly, but that he have no casting vote as chairman.
``16. That all candidates for office, upon receiving a majority of
the votes cast by this joint meeting, shall be declared to be duly
elected.''
The same rules were adopted by each joint meeting from 1861 to 1865.
The joint meeting which assembled February 15, 1865, and at an
adjourned session of which Mr. Stockton was appointed Senator, adopted,
at its first meeting, the rules of the preceding joint meeting, except
the sixteenth rule, in lieu of which the following was adopted:
``Resolved, That no candidate shall be declared elected unless upon
receiving a majority of the votes of all the members elected to both
houses of the legislature.''
After having appointed various officers under the rules which had
been adopted at the assembling of the joint meeting, the following rule
was adopted:
``Resolved, That the vote for county judges and commissioners of
deeds be taken by acclamation, and that the counties in which vacancies
exist be called in alphabetical order.''
Acting under this rule, quite a number of officers were appointed by
acclamation. Not completing its business the joint meeting adjourned
from time to time till March 15, when the following rule was adopted:
``Resolved, That the resolution that no candidate shall be declared
elected unless upon receiving a majority of the votes of all the
members elected to both houses of the legislature be rescinded, and
that any candidate receiving a plurality of votes of the members
present shall be declared duly elected.''
Every member of both houses, 81 in all, was present and voting when
the above resolution was passed, and it was carried by a vote of 41 in
the affirmative, of whom 11 were senators and 30 representatives, to 40
in the negative, of whom 10 were senators and 30 representatives. The
joint meeting then proceeded to the election of a United States
Senator, with the following result:
Hon. John P. Stockton, 40 votes; Hon. J. C. Ten Eyck, 37 votes; J. W.
Wall, 1 vote; P. D. Vroom, 1 vote; F. T. Frelinghuysen, 1 vote; H. S.
Little, 1 vote.
Whereupon John P. Stockton, having received a plurality of all the
votes cast, was declared duly elected. The joint meeting then proceeded
to the election of various other officers, having completed which, it
rose.
The credentials of Mr. Stockton are under the great seal of State,
signed by the governor and in due form. No objection appears to have
been made at the time to the election. Its validity is now called in
question by a protest dated March 20, 1865, and signed by 8 senators
and 30 members of the general assembly. The Constitution of the United
States declares that the Senate of the United States ``shall be
composed of two Senators from each State, chosen by the legislature
thereof,'' and that ``the times, places, and manner of holding election
for Senators and Representatives shall be prescribed in each State by
the legislature thereof, but the Congress may at any time by law make
or alter such regulations, except as to the places of choosing
Senators.''
The right to choose United States Senators in a joint meeting of the
two houses which compose the legislature of a State has been too long
and too frequently exercised to be now brought in question. This has
been the manner of election in some States from the beginning, and is
now the manner in most of them.
For the purpose of choosing United States Senators the joint meeting
of the two houses is regarded as the legislature, and especially would
this be so in New Jersey, where the joint meeting is by the
constitution of the State denominated a legislature. It has uniformly
been held that when the two branches of a legislature meet in joint
convention to elect a United States Senator they are merged into one
and act as one body, so that an election may be effected against the
entire vote of the members of one house if the person voted for receive
the requisite number of votes from members of the other. It being,
then, settled that the two houses of a legislature in joint meeting
assembled constitute the legislature, vested by the Constitution of the
United States with authority, acting as one body, to elect a Senator,
the question is: Did the joint meeting of the senate and general
assembly of New Jersey, duly convened in pursuance of a resolution
previously concurred in by each house separately, choose John P.
Stockton United States Senator?
That it was competent for a plurality to elect, if a law to that
effect had been prescribed by competent authority, will hardly be
questioned. This is the rule very generally, if not universally,
adopted in the election of members of the House of Representatives, who
are ``chosen every second year by the
Sec. 877
people of the several States,'' and no one questions the validity of
the election of a Representative by a plurality vote when the law
authorizes a plurality to elect. It is, however, insisted, and truly,
that no law of New Jersey authorizes a plurality to elect. The laws of
New Jersey are silent on this subject, but they do authorize a joint
meeting of the two houses of the legislature to appoint a Senator, and
it has been the uniform practice of this joint meeting since the
foundation of the Government to prescribe the rules for its own
government. These rules as to the number of votes necessary to effect
an election have varied at different times, sometimes requiring a
majority of all the members elected to both houses of the legislature,
sometimes a majority only of those present, and in the case under
consideration only a Plurality
Suppose, under the rule fast stated, but 79 members had been present
in the joint meeting, and 40 had voted for the same person, would he
have been elected; and if not, why not? Seventy-nine out of 81 would
have constituted a quorum, and 40 would have been a majority of those
present. The only reason why such a vote would not have made an
election would be the existence of the rule adopted by the joint
meeting, declaring that ``no candidate should be elected unless
receiving a majority of the votes of all the members elected to both
houses of the legislature.'' While that rule was in force no presiding
officer would have thought of declaring a candidate elected, nor would
any candidate have supposed himself elected because he received a
majority of the votes cast, unless such majority was a majority of all
the members elected to the legislature. Under the other rule, ``that a
person receiving a majority of the votes of those present should be
declared elected,'' who would doubt the validity of an election by 31
out of 60 votes if only so many had been cast? If the joint meeting had
the right to prescribe at one time that it should require a majority of
all elected to the legislature to elect, at another time that a
majority of those present might elect, and at still another time that
elections might be had by acclamation, it had the right to prescribe
that a plurality should elect; and when any candidate received a
plurality he thereupon became elected, not simply by the will of those
who voted for him, but by the will of the joint meeting, which had
previously, by a majority vote, resolved that such plurality should
elect.
It might be urged in this case, with much plausibility, that inasmuch
as the constitution of New Jersey recognizes the two houses in joint
meeting as a legislature, that such joint meeting was the very body on
whom the Constitution of the United States had conferred the power to
prescribe ``the times, places, and manner of holding elections for
Senators;'' but your committee prefer placing the authority of the
joint meeting to prescribe the plurality rule on the broader ground
that in the Absence of any law, either of Congress or the State, on the
subject, a joint meeting of the two houses of a legislature, duly
assembled and vested with authority to elect a United States Senator,
has a right to prescribe that a plurality may elect, on the principle
that the adoption of such a rule by a majority vote in the fast
instance makes the act, subsequently done in pursuance of such majority
vote, its own.
The committee recommend for adoption the following resolution:
Resolved, That John P. Stockton was duly elected and is entitled to
his seat as a Senator from the State of New Jersey for the term of six
yews from the 4th day of March, 1865.
On March 23 \1\ this resolution was considered, and was agreed to by
a vote of yeas 22, nays 21; but on March 26 \2\ objection was made that
Mr. Stockton had been one of those voting in the affirmative, and that
he should not have voted. So the vote was reconsidered. And on March 27
the resolution was amended so as to declare Mr. Stockton not entitled
to the seat, and then was agreed to, yeas 23, nays 20.\3\
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\1\ Globe, pp. 1589-1602.
\2\ Globe, pp. 1635-1648.
\3\ Globe, pp. 1666-1679.