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[Hinds Precedents -- Volume II]
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[DOCID: f:hinds_xxxiv.wais]
Chapter XXXIV.
GENERAL ELECTION CASES, 1884 AND 1885.
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1. Cases in the Forty-eighth Congress, section 984-999.\1\
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984. The election case of Manzanares v. Luna, from the Territory of
New Mexico, in the Forty-eighth Congress.
As to what constitutes a sufficient service of notice of contest when
the returned Member is absent from home.
Instance wherein the census and returns of previous elections were
referred to as creating a presumption against a return.
It being impossible to separate the good from the bad vote, the poll
was rejected.
On March 5, 1884,\2\ Mr. Thomas A. Robertson, of Kentucky, submitted
the report of the Committee of Elections in the case of Manzanares v.
Luna, from the Territory of New Mexico.
Sitting Delegate had been returned by an official majority of 1,419
votes.
At the outset of the case the committee thus dispose of a preliminary
question:
That on the 29th day of November, 1882, the acting governor of the
Territory of New Mexico issued his certificate of election in due form
to the sitting Delegate; that on the 23d day of December, 1882, the
contestant served a copy of his notice of contest on the wife of the
contestee at his residence in the Territory of New Mexico, the
contestee not being found at home; that on the 20th day of December,
1882, the contestant sent a copy of his said notice of contest by
express to the Sergeant-at-Arms of the Senate of the United States to
be served on contestee, and on the same day sent by mail, by a
registered letter, another copy addressed to contestee, directed to the
city of Washington, where contestee was then in attendance upon the
session of Congress. That the contestee answered in full on the 29th
day of January, 1883.
The contestee claimed that the notice was not served in time, but
your committee are of opinion that the notice was ample, and served in
time, and in accordance with the statute law of New Mexico; and for the
further reasons that the sheriff who served the notice of contest upon
contestee's wife testified contestee was absent from the Territory of
New Mexico, and besides he mailed a registered letter containing notice
of contest to contestee at the city of Washington, where contestee was,
and that the letter reached the city within the time prescribed by law
for the notice to be served.
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\1\ Other cases in this Congress are classified in different
chapters: Chalmers v. Manning, Mississippi, Volume I, section 44;
Garrison v. Mayo, Virginia, Volume I, section 537.
\2\ First session, Forty-eighth Congress, House Report No. 667;
Mobley, p. 61.
Sec. 985
As to the merits of the case, the committee investigated chiefly
questions of fact. As to these frauds the report holds:
In the county of Valencia your committee think it is clearly proven
that frauds were committed in several of the precincts, and were such
as to compel your committee to throw out the whole vote of said
precincts; the fraud being so great and the returns so entirely in
disregard of law and fair conduct on the part of the election officers
that it is impossible to separate the good from the bad vote.
Before going into any detail of the evidence, your committee will
state that the census of 1880 shows the whole number of male adults
capable of voting in that county to be 2,636, while the vote certified
and counted for contestee is 4,193. Moreover, while the certificate
from that county gave the contestee that remarkable vote, it did not
give even one to the contestant, although the returns before them
showed he had received 66 votes. Your committee deem it appropriate to
refer the House to the vote for Delegate in Congress of the two
political parties in this Territory from 1873 to 1882, inclusive.
The committee, after citing the returns, say:
These are very pregnant evidences of fraud, taken in connection with
the evidence, which shows no increase of population from 1880 to 1882.
The report then examines the various precincts, and finds an actual
majority of 938 for contestant. Therefore they recommended the
following resolutions:
Resolved, That Tranquilino Luna was not elected a delegate to the
Forty-eighth Congress from the Territory of New Mexico, and is not
entitled to the seat he now holds.
Resolved, That Francisco A. Manzanares was duly elected a Delegate to
the Forty-eighth Congress from the Territory of New Mexico, and is
entitled to be sworn in as such.
The resolutions were agreed to, without debate or division.\1\
985. The Virginia election case of O'Ferrall v. Paul, in the Forty-
eighth Congress.
Instance wherein a contest was maintained and contestant seated,
although the returned Member had resigned before taking his seat.
Payment of a capitation tax being a prerequisite for voting, the
votes of persons who had not paid were rejected.
Instance wherein the number of disqualified voters was fixed by
testimony of a single witness as to his mere comparison of poll lists
with delinquent tax lists.
Instance wherein the vote of a disqualified voter was proven by the
fact of his color.
Instance wherein the House rejected votes as disqualified without
ascertaining the names of the voters or the precincts wherein they
voted.
A report of a committee is sometimes authorized by the affirmative
votes of less than a majority of the whole committee, some Members
being silent or absent.
On April 30,1884, \2\ Mr. Robert Lowry, of Indiana, from the
Committee on Elections, submitted the report of the majority of the
committee in the Virginia contested case of O'Ferrall v. Mr. Paul had
been credited with an official majority of 205 votes, and had received
the certificate. But he never qualified and sent his resignation to the
governor in August, 1883, on being appointed to the bench of the United
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\1\ Journal, p. 747.
\2\ First session Forty-eighth Congress, House Report No. 1435;
Mobley, p. 137.
Sec. 985
States court. No special election having been ordered, the seat had
been vacant from the first.
In Virginia the payment of a capitation tax was a prerequisite to the
right to vote. The majority of the committee, finding as they claimed,
that in one county of the district 557 persons who had not paid the
capitation tax had voted for contestee, arrived at the conclusion that
contestant was elected:
We base our conclusion that 676 votes were cast by persons delinquent
in the payment of their capitation taxes in Albemarle for contestee,
and that 557 of these were clearly illegal, upon the following facts:
By section 57, chapter 33, of the Code of Virginia, the commission of
the revenue were required to state in their assessment lists the color
of all male inhabitants over the age of twenty-one years. The
treasurer, in making his return of delinquents to the auditor of public
accounts, gave the color of all delinquents in accordance with the
commissioners' books. So that the white delinquents were classified in
one list and the colored in another list.
The contestant filed certified copies of the delinquent lists (white
and colored) of Albemarle County. (Record, 75-91.)
These lists showed the names and color of all delinquents for the
year 1881--the year for which the capitation tax was required to be
paid before the day of the election in question.
There is contention between the parties as to whether the auditor of
public accounts of Virginia could appoint certain collectors of
delinquent taxes, and whether these collectors and their deputies could
then legally collect these delinquent capitation taxes.
Assuming for the purposes of this case that the auditor of public
accounts could appoint collectors of delinquent taxes, and that these
collectors could appoint deputies (both of which questions are held in
reserve), then, under the law, the clerks of the county and corporation
courts of the Commonwealth and the special collectors appointed by the
auditor and their deputies were the only parties by whom receipts could
be issued for delinquent capitation taxes in the various counties and
cities.
The principal question on which we rest this case is, whether certain
tax receipts issued by these collectors (so-called) and their deputies
were issued without being paid for.
The contestant, to show the number of receipts issued and to whom by
both the clerk of Albemarle and special collector, filed a certified
list of the names of delinquents for 1881, to whom receipts had been
issued by the clerk of Albemarle County. (See Record, 73-75.)
After thus ascertaining the names of these parties who had clerk's
receipts, it followed as a necessary consequence that all delinquents
who voted whose names were not on the clerk's list, voted on the
collector's receipts. Then to ascertain what delinquent voters cast
their votes, and upon whose receipts, it was only necessary to compare
the poll books of the county with the delinquent lists.
Contestant introduced a witness (Record, 71) who testified--and whose
testimony remained uncontradicted--that he had compared the clerk's
list with the poll books and had designated all the delinquents who
voted on the clerk's receipts by the letters ``H. B. B.'' opposite
their names on the delinquent lists; that he then designated all the
delinquents who voted and who did not have the clerk's receipts by the
name of the precinct at which they voted opposite their names on the
delinquent lists. It was thus found that 676 delinquents voted who did
not have the clerk's receipt, and presuming that the judges of election
did their duty and required the production of receipts, as required by
law, these 676 voted on the collector's receipts. Of this number 655
were colored.
James T. Wayland, a strong and active partisan of the contestee, was
appointed a special tax collector of delinquent taxes for Albemarle
County by the auditor of public accounts, who belonged to the same
party as the contestee, and was a State canvasser of that party. This
special tax collector appointed persons whom he called deputies in said
county; he issued unlimited numbers of blank receipts for delinquent
capitation taxes to these so-called deputies, who were all partisans of
the contestee, and these deputies filled these receipts without
receiving any money, and delivered them to the voters. These deputies
paid no money to the collector for the receipts at any time, either
before or after the election; the collector only received, and that in
bulk, without being applied to individual cases, for all the receipts
issued by him, $125 before the day of election. Each receipt issued
represented $1.05, so that,
Sec. 985
even assuming that this $125 was a valid payment for so many receipts,
the said sum of $125 only paid for 119 receipts. There were 676 votes
cast upon the receipts issued by this special collector, so that after
deducting said 119 receipts there were 557 votes cast upon collectors'
receipts for which no money had been paid at the time the votes were
cast or before the day of election, as required by the constitution of
Virginia, and therefore these 557 votes were illegal.
The system of appointing these special collectors was inaugurated for
political purposes by the auditor of public accounts of the State, who
belonged to the party of which the contestee was the nominee; all of
his appointees were active partisans of his party, and in many
instances the chairman or secretary of the county committee, or a
member of the State committee of that party, or an United States
internal-revenue officer.
After quoting testimony, the majority report goes on:
This evidence shows as conclusively as circumstantial evidence could
well show that the colored vote was cast with almost perfect unanimity
for the contestee, and when it is taken in connection with the fact
that 655 colored delinquents voted on collectors' receipts issued only
to Readjuster voters, the conclusion naturally follows that these 655
colored delinquents voted for contestee.
What is proof? It is that degree of evidence which convinces the mind
and produces belief.
Can any reasonable mind in the light of this evidence fail to believe
that these votes were cast for contestee? Is not the weight of evidence
on the side of the contestee? In fact, does it not exclude even a
reasonable doubt?
There is no evidence nor any attempt to controvert this, and is not
that another circumstance which goes to strengthen the belief? In the
case of Smith v. Shelley the last House held that the testimony of two
witnesses that 95 to 97\1/2\ per cent of the colored vote of a
Congressional district was Republican was sufficient in the absence of
controverting testimony. Here are 21 witnesses, of both political
parties and both colors, who were present at the polls, working in the
interest of the respective candidates, or observing as interested
parties the movements, actions, and expressions of the voters, and with
a knowledge of their political affiliations and associates, who testify
that the colored vote of a county (not a Congressional district) was
cast with approximate unanimity in a certain direction and for a
particular candidate. It was not mere opinion, as in the case of Smith
v. Shelley, but facts drawn from direct observation and participation
at the polls, and from knowledge of political proclivities and
associations.
Our conclusion is that these 557 persons had not complied with this
constitutional provision, and were not therefore qualified to vote, and
their votes must be deducted from the vote of the contestee. How, then,
will the vote stand?
Returned vote for ....... 11,941 ...............
contestant,
O'Ferrall.
Returned vote for 12,146 ....... ...............
contestee, Paul.
Deduct the illegal 557 ....... ...............
votes above.
---------
11,589 ...............
---------
Majority for ....... 352 ...............
contestant,
O'Ferrall.
But in this county Porter's precinct was thrown out by the board of
county commissioners for mere irregularity. We think it ought to be
counted. It gave contestee 104 majority. Deduct, then, 104 from 352,
and it leaves a clear majority of 248 votes for contestant.
Therefore the majority reported resolutions declaring that Mr. Paul
was not elected, and that Mr. O'Ferrall was elected and entitled to the
seat.
Mr. Samuel H. Miller, of Pennsylvania, presented the views of the
minority, assailing this conclusion. At the outset he stated the
following:
The resolutions appended to the report of the Committee on Elections,
submitted by Mr. Lowry, of said committee, received the approval, by a
yea and nay vote, of 6 members out of 12 present at the time the vote
was taken--2 members present declining to vote. Of the absent members,
all 3 had expressed themselves opposed to the resolutions declaring Mr.
O'Ferrall elected and entitled to the seat. We state this as showing
that at the time said resolutions were adopted by the committee they
only had the endorsement of 6 of the 15 members.
Sec. 985
The minority then proceed to assail the method of proof adopted by
the majority:
The utter unreliability of this testimony arises from the fact that
the witness, Bennett T. Gordon, who testified on page 71 of record, did
not pretend to know the parties whose names were on the poll books or
on the clerk's list of delinquents. He simply performed a mechanical
act, which any member of the committee or the House can do by taking up
the two lists, and when he finds a name on the poll lists and a name on
the delinquent lists which are the same check it off on the assumption
that there could not be two men of the same name in the county.
OVER 6,000 NAMES ON THE DELINQUENT LISTS AND POLL BOOKS.
There are over 2,000 names of colored persons on the delinquent lists
of Albemarle County and 4,133 names of white and colored on the poll
books. There is no law in Virginia requiring the election officers to
keep a record of the color of voters. Then, on the delinquent lists we
find numerous instances where the same name is common to a number of
persons. We find 3 Charles Burleys; 3 John Browns, Jack Brown, John A.
Brown, and John W. Brown; 5 Nelson Browns; 4 James Johnsons and 1 Jim
Johnson; 4 Wm. Johnsons; 5 Hy. Johnsons and 1 Henry Johnson; 3 Sam.
Johnsons and 2 Saml. Johnsons, and an almost equal repetition is found
throughout the alphabet. To assume that a stranger could take two
lists, one containing over 4,000 names in twenty different books, and
the over 2,000 names in two lists, neither of which have any
distinguishing marks, and from these 6,000 names select the number of
colored persons who voted on delinquent tax receipts and figure them
out at 655 is to assume an impossibility. It is not pretended that the
election officers kept a record of either the whites or blacks who
voted on delinquent tax receipts. The proof is utterly unreliable. In
short, it is no proof whatever, for, as heretofore stated, any member
of the committee can take the lists and the twenty poll books and as
correctly arrive at the same conclusion.
We contend that the only reliable and competent evidence would be the
testimony of the alleged delinquents, or a sworn copy of the list of
such as paid their tax made out by the collector to whom the tax was
paid and by whom the receipts were issued. If the latter could not be
obtained then the delinquent voters alone could testify correctly.
Every man whose name was on the delinquent list and who voted is
presumed to have had a tax receipt, and consequently his ballot can not
be rejected except upon competent evidence.
It is on the evidence of Bennett T. Gordon, which will be found in
the appendix, that the committee find that 655 colored delinquents
voted in Albemarle County. The witness Gordon does not pretend that he
has any personal acquaintance with any of these 655 men; does not
pretend that he has any personal knowledge of whether they were
delinquent or not; does not pretend that he has personal knowledge of
whether they are colored or not; does not pretend that he has personal
knowledge of whether they are the same men or not. All he testifies is
that he finds the name of John Brown on the delinquent county list, and
the name of John Brown on some poll list for the same county; therefore
the two men are one and the same.
FOR WHOM WERE THESE 655 VOTES CAST?
Unless the House adopts the hypothesis of the majority report that
Bennett T. Gordon could with absolute certainty pick out from over
6,000 names these 655 voters, then they are unnamed and unknown. But
two of all are called, and three others only are identified. But if
their identity is established, then there is not a single witness who
testifies for whom they severally voted. Twenty-one witnesses, living
in 16 of the 20 election precincts, testify as to whom the colored
people as a class voted for. In 4 of the precincts, in which 66 of the
alleged delinquents voted, there is not a line of testimony as for whom
the colored people as a class voted.
But we contend that a still more important question is:
WHAT ARE THE NAMES OF THE 557 VOTERS
who cast the ballots which the majority report declares to be illegal,
and which the committee deduct from contestee's vote, and which must be
deducted from contestee's vote in order to seat the contestant?
The committee concede that of the 676 persons who it claims voted on
collectors' receipts, 119 (of whom 21 were white and 98 colored) were
entitled to vote. What are the names of these 119? It
Sec. 986
is admitted by the majority report that Collector Wayland had at least
$125 before the election, and that this would qualify 119 voters. Who
are they? At what precinct did they vote? How many of them voted at
Batesville? How many at each of the other 20 precincts? If it is
impossible to say who the 119 voters are, how can the committee name
the 557 voters whose ballots it deducts from contestee?
Did any court investigating an election case ever reject a ballot for
the sole reason that the person casting it had not paid a tax required
by law as a prerequisite for voting and deduct it from one of the
candidates without naming the voter who cast the ballot? How is it
possible to decide that the ballot is illegal unless the name of the
person casting such ballot is known?
Can the majority of the committee name the 557 voters whose ballots
it deducts from the contestee in order to seat the contestant? Can the
contestant name them? Can anyone tell us the number rejected at each of
the 20 precincts? If not, why not?
The minority also asserted, as a fact shown by the testimony, that
the collector had a draft for the taxes alleged not to be paid, which
was indorsed about three weeks after the election.
In the debate it was insisted that as the object of the law was
revenue, and as the State had the revenue, the voters who had paid it
should not be disfranchised.\1\
The report was debated on May 5,\2\ and on that day a resolution
proposed by the minority declaring Mr. O'Ferrall not elected was
disagreed to, yeas 83, nays 139.
Then the resolutions of the majority were agreed to, ayes 128, noes
73.
Mr. O'Ferrall thereupon appeared and took the oath.
986. The Ohio election case of Wallace v. McKinley in the Forty-
eighth Congress.
A report of a committee is sometimes authorized by the affirmative
votes of less than a majority of the whole committee, some being
absent.
A divided committee once held that canvassers, not having judicial
authority, should count votes returned under variations of name in
determining prima facie right.
It being determined that contestant had actually been entitled to the
credentials, the burden of proof was shifted to the returned Member.
On May 14, 1884,\3\ Mr. Henry G. Turner, of Georgia, from the
Committee on Elections, presented the report of the majority of the
committee in the Ohio case of Wallace v. McKinley.
The minority views, presented by Mr. A. A. Ranney, of Massachusetts,
called attention to the division in the committee:
The learned chairman of the committee has prepared and shown to us
the report which he proposes to make to the House, in behalf of the six
members who constituted the majority, voting in favor of the
resolutions appended thereto, as against five other members voting
otherwise. It is to be regretted that this case proceeded to a vote in
committee during the necessary and enforced absence of four of its
members. The minority feel it to be their duty, not only to dissent
from the majority report and its conclusions, but to assail it, as
failing to present the case fully and properly for the determination of
the House.
The sitting Member had received his certificate on an official
plurality of 8 votes.
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\1\ Record, p. 3812.
\2\ Record, pp. 3800-3819; Journal, pp. 1178-1181.
\3\ First session Forty-eighth Congress, House Report No. 1548;
Mobley, p. 185.
Sec. 986
As to the question of prima facie right and the burden of proof, the
report says:
The State canvassing board, consisting of the governor and secretary
of state, treated Jonathan H. Wallace, John H. Wallace, Major Wallace,
Wallace, W. H. Wallace, W. W. Wallace, Jonathan Wallace, Maj. Wallace,
and J. H. Wallace as distinct persons, and in that way awarded the
certificate of election to the sitting Member. Under this treatment of
the returns the sitting Member has a plurality over the contestant of 8
votes.
On the argument the concession was made that the votes certified for
``Major Wallace,'' ``Wallace,'' ``Jonathan Wallace,'' ``Major
Wallace,'' and ``J. H. Wallace,'' 16 in number, should be counted for
contestant. Conforming the figures to this addition, the positions of
the parties are reversed, and the contestant has a plurality over the
sitting Member of 8 votes on the face of the returns. In this state of
the case the burden is cast upon the sitting Member to contest the
election of Mr. Wallace. Indeed, there can be no doubt that the
certificate of election should have been issued to the contestant, and
he should have been the occupant of the seat with its honors and
emoluments. Logically, we assign him nunc pro tunc his true position in
the controversy, and the onus is shifted to his adversary.
The proof shows that the contestant was the only candidate at the
election bearing the name of Wallace, and under the weight of authority
we think that the ballots certified to have borne the names John H.
Wallace, W. H. Wallace, and W. W. Wallace, 7 in all, in the absence of
any other evidence, should be also counted for the contestant.
The minority deny the principles above set forth.
The majority report goes so far as to say that the certificate of
election ought to have been issued to the contestant on this account,
and proceeds to treat him in advance as duly elected upon the final
returns alone. Nothing, in our judgment, can be more clearly erroneous
than this finding and statement. It is against every principle and rule
of law, and all precedent. It can not be justly denied that, under the
laws of Ohio, the State board are merely ministerial officers, invested
with no power to meet the parties and hear evidence; and had they
attempted to do it, it would have been a clear violation of duty. The
precinct officers (the judges of election) had presumably counted the
votes in question as cast for different persons, and they had been so
returned to the county canvassers, and by them in turn to the State
board. The State board had no right or authority to assume that votes
for John H. Wallace, Major Wallace, Wallace, W. H. Wallace, W. W.
Wallace, Maj. Wallace, and returned as if for different persons, were
in fact intended for Jonathan H. Wallace. The State board had no legal
authority whatever to hear evidence and determine that issue of fact.
If they had, they should not have stopped there, but proceeded to hear
other controverted issues of fact.
The board followed the rule uniformly laid down in the decided cases.
(McCrary on Elections, secs. 211, 81, 82, 83; 27 Barb., 77; 25 Ill.,
328; 4 Wis., 779; 10 Iowa, 212; 22 Mo., 224. Clark v. Board, etc., 126
Mass., 282; 64 Maine, 596; 71 Maine, 371; 59 Ind., 152.)
No authority to the contrary can be found, except in cases where the
statutes gave the board greater authority than do the statutes of Ohio.
The House can go behind the returns and hear evidence and get at the
facts which the State board had no power to do.
In this investigation, therefore, we are to assume that contestee
rightfully obtained his certificate, and that he has a prima facie
title to the seat, with all of the usual presumptions that attach to
the same. It is incumbent upon the contestant to overthrow that title
and right. If, in attempting to do so, he shows, or it appears
otherwise, that contestee got more votes than were counted and returned
for him those must be overcome also. If the evidence nullifies any of
the votes counted and returned for contestant, he can not have the
benefit of them in maintaining his claim of a majority. It is erroneous
to assume that the burden shifts from the contestant to the contestee,
by proving one item of his claim, which alone considered might change
the result.
There was also a question as to an error of 10 votes in the footings
whereby sitting Member suffered; but this was denied by the minority,
and sitting Member waived the claim.
Sec. 987
987. The election case of Wallace v. McKinley, continued.
Ballots whereon the name of a candidate was spelled grotesquely, and
rejected by the election judges, were counted on oral evidence
sustained by a recount after the box had been in illegal custody.
Discussion as to admissibility of oral evidence to contradict a
ballot.
Ballots with a different given name, and others with different
initials, were counted without proof of intent of the voter.
A vote for ``Kinley'' was counted for ``William McKinley'' on proof
of voter's intent.
A vote apparently for ``Walce,'' and rejected by the judges as
undecipherable, was counted for ``Jonathan H. Wallace'' on slender
evidence.
The House declined to reverse the action of election officers who had
returned for ``Jonathan H. Wallace'' votes cast for ``J. Wales'' and
``Jonathan H. Walser.''
Proceeding from the question of prima facie right, the report
proceeds with the claims of contestant and of sitting Member. In brief,
it may be said that recounts and reexaminations had so resulted as to
enable contestant to claim a plurality of 30 votes, while sitting
Member proposed to overcome this by showing the illegality of 55 votes
alleged to have been cast for contestant. Individual votes being dealt
with, a number of principles were involved in important relations to
the decision of the case.
(1) The question as to the proper spelling of the name of the
candidate.
Besides the variations discussed in the consideration of prima facie
right, the majority proposed to count certain ballots found under
conditions as follows:
In Fairfield Township, Columbiana County, a number of ballots bearing
the surname of the contestant, or some approximation to that name,
though improperly spelled, were omitted from the count and were not
included in the return. An effort was made to ascertain the number and
character of these ballots by a reexamination of the box. Although the
persons charged with the custody of the box and the key of the box deny
on oath that they had tampered with the box or its contents, it appears
that for a short time the box and the key were in the possession of the
same person, contrary to the law of the State. An opportunity was thus
afforded for casting suspicion upon the integrity of the box. It also
appears that on a recount of the ballots, which had been counted and
strung and placed in this box, a different result was reached from the
result certified by the judges of election.
But from the testimony of the judges of election and others there can
be no doubt that at this precinct ballots of the character described
were voted at the election and excluded from the count. Carpenter,
Democratic judge of the election, in his evidence states the number of
these uncounted ballotsto have been from 7 to 15. Hum, a Republican
judge of the election, in his evidence estimates the number at from 2
to 13, and his impression seems to have favored the latter number.
Shields, another Republican judge, in his testimony places the number
at 5. Augustine, Republican clerk of the election, statesthat there
were 13 or 14 of these uncounted ballots. And others testify on the
subject with more or less variant results. In the box at the recount
just mentioned were found 11 ballots for ``Major Wallace,''``Ma.
Wollac'', Wolac,'' ``Mag. Wolac,'' ``Wollac,'' ``Wallace,'' ``Woloc,''
``Mage. Wolac,'' and ``Wolloc.'' This species of ballots the judges say
they rejected from the count. We adopt this number, and think they
ought to be counted for contestant.
In Washington Township, Stark County, the judges of election cast out
a ballot on which the sitting Member's printed name was erased, and the
name ``Walce'' was written in pencil under the erased name. The reason
given by one of the judges for the rejection of this vote was that ``it
lacked the Christian name or initials.'' We think it ought to be
counted for contestant.
Sec. 987
The minority views contend strongly that the custody of the box had
not been in accordance with the law of Ohio, and that upon the person
offering the box was cast the burden of proof of showing that it was
intact. In this case four months had elapsed, and it appeared (and in
debate was admitted by the majority) that there were 5 less votes in
the box than at the time of the official count. The minority say:
The majority report virtually abandons the claim as based upon the
recount, and appears to find that the evidence establishes,
independently of the recount, that 11 more votes were cast for him than
were counted. A careful examination shows that the evidence falls far
short of proving this. The mixing up of the recount, when it is
discredited, with what evidence is furnished by witnesses orally, is
most remarkable. The oral evidence alone is not enough to prove
distinctly the claim, either as to the number of the ballots not
counted or to give an intelligible description of them.
As to the ballots for ``Waiac,'' ``Ma. Wllac'' ``Mag. Wolac,''
``Walor,'' ``Mage Wolac,'' and ``Waloe,'' and others (if proved), they
neither indicate the proper name of contestant nor any name by which he
was ever known.
The oral testimony describes no such ballots.
The judges of election made no return of such, as scattering or
otherwise. Whereas if it was true that there were so many such
irregular votes, as is now pretended, they would have been returned as
was done at other places, in the county of Columbiana, and as the
statute absolutely required. It is more probable that they are mistaken
now than that they were guilty of any such misconduct.
To count them in any event for the contestant involves a
contradiction of the ballots, they having been cast for names different
from any by which the contestant has ever been known.
It seems perfectly well settled that no evidence can be received to
contradict a ballot; it must be sufficiently certain upon its face,
that when read in the light of the surrounding circumstances it appears
to be manifestly for the candidate claiming it.
The minority then quote Cooley and Cushing in support of this
doctrine.
The minority further discuss on their merits other questions as to
ballots bearing variations in the names.
We now come to the 23 names returned from Columbiana County, which
contestant claims and which the majority report finds. Upon the
evidence that he was a candidate and was known and went by the name of
Major Wallace and Jonathan Wallace, contestee very liberally concedes
him 16 of the votes, and we need not discuss that matter.
As to 7 ballots, reading:
W. H. Wallace................................................. 2
John H. Wallace............................................... 4
W. W. Wallace................................................. 1
---
Total..................................................... 7
There is no ambiguity, and the names designate other persons. There
is no evidence to show the intention of the voter, as in case of the
ballot for ``Kinley.'' It is not safe to go into the region of guess,
surmise, or conjecture. The intention can beagot only from the ballots
themselves. There were other Wallaces in the district eligible to the
office. There was a John Wallace. There was &good deal of scratching
and independent voting, by Republicans especially. When this is done,
third persons, not regular candidates, are often voted for. There were
in fact some four different candidates at least, and numerous
scattering votes, the names not being given.
We can not allow these ballots as proved to have been cast for
contestant.
Mount Union Precinct, Star County.
The majority report allows contestant 1 vote not counted at Mount
Union. The ballot is in evidence, marked Ex. A, A. L. Jones. An
inspection of the same shows that it is impossible to read more than
the first three letters, which are probably W-a-l. Beyond this it is
impossible to decipher any letters. It is printed in the record
``Walce.'' It is written in pencil under name of contestee erased in
pencil. (Rec., p. 97.)
Sec. 988
The judges, including Rakestraw, Democratic judge, were unanimously
of the opinion at the time that the name could not be deciphered, and
rejected the ballot at the time of the count. In his evidence he now
pretends that it was because the initials were wanting. But the
evidence of the other witnesses (entirely ignored by the chairman in
his report) completely refutes this pretense now. We find that this
should not be allowed for contestant with all the presumptions against
it, and upon the evidence.
An opportunity to examine the same further, and call witnesses about
this ballot, was denied contestee and his counsel, as already herein
before stated. (Rec., p. 98.)
This would have been a good occasion for the chairman to have applied
the principle, which he enunciates, as to the force which is to be
given to the action of the election officers, and on this case ``refuse
to reverse their judgment.''
There was also cast a ballot marked ``Kinley,'' and it was conceded
that this should be counted for sitting Member.
The minority also call attention to the following:
In Mount Union precinct, Washington Township, a ballot was cast for
``J. Wales,'' which was counted and returned for Mr. Wallace. The name
is not that of the contestant by any possible manner of spelling. It is
a well-known name in Stark County, the proof showing that a gentleman
of this surname was once a candidate for Congress in the district.
To count the vote for him contradicts the ballot.
In Osnaburgh precinct of Osnaburgh Township a ballot for Jonathan H.
Walser was counted and returned for Mr. Wallace. The proof shows that
there was a John Walser in Stark County, a prominent Democrat and
candidate for office. In any event, the name Walser is not that of the
contestant. If intended for him it was a mistake of the voter, which
can not be corrected. (A. Smith, Rec., p. 361; M. Miller, p. 363; G.
Holben, p. 364; B.F. Sullivan, p. 365.)
There is no evidence adduced from which the intention of the voter in
the last two cases can be inferred, save the ballots themselves and the
mere fact that contestant was one of the candidates.
The majority report declines to reverse the action of the judges and
count the votes.
988. The election case of Wallace v. McKinley, continued.
The House counted a ballot rejected by election judges because of
distinguishing marks, on testimony that the marks were made by
inadvertence.
Evidence of declarations of voters after the election as to how they
voted was rejected as hearsay.
Discussion as to whether or not the voters are parties to an election
case in the sense that their declarations are admissible to prove their
votes.
Discussion of an election case as a public inquiry, admitting a
liberal rule of evidence.
Does the fact that an election case is instituted by a memorial
instead of on pleading under the law justify a different rule of
evidence?
Discussion as to the applicability of English decisions to American
election cases.
(2) A question arose as to a marked ballot. The majority say:
In Lee Township, Carroll County, a ballot for contestant was not
counted by the judges, because it had a name and some figures on the
back of it. It is claimed by the sitting Member that this ballot is
obnoxious to the statute of Ohio which forbids any mark or device by
which one ticket may be distinguished from another. The evidence shows
that this ticket was voted in the condition described by accident or
inadvertence. We do not think that it is within the mischief intended
to be prevented by the statute, and count it for this contestant.
Sec. 988
The minority held:
The majority report allows a ballot which was rejected by the judges
of election in Lee Township, Carroll County (Rec., p. 177). It was not
counted, because on the back of it was written in ink, ``H.--W. J.
McCauseland,'' and then two columns of figures under the letters R. and
D., respectively. The ballot was clearly in violation of the statute
supplement to Revised Statutes, section 31. It provides:
``That all ballots voted at any election held in pursuance of law
shall be written on plain white paper, or printed with black ink on
plain white news-printing paper, without any device or mark of any
description to distinguish one ticket from another, or by which one
ticket may be known from another by its appearance, except the words at
the head of the ticket, and that it shall be unlawful for any person to
print for distribution at the polls, or distribute to any elector, or
vote any ballot printed or written contrary to the provisions of this
act: Provided, That nothing herein contained shall be construed to
prohibit the erasure, correction, or insertion of any name, by pencil
mark or otherwise, upon the face of the printed ballot.''
The ballot had clearly on the back of it what made it a mark which
served to distinguish it from other ballots. (McCrary, sec. 403; Hirk
v. Rhoades, 46 Cal., 398.) 'We do not think the ballot should be
allowed contestant.
The chairman, in his report, seems here to forget his purpose to
allow all reasonable presumptions in favor of the action of the judges
of elections, as availed of in the instances of J. Wales and J. H.
Walser.
(3) An important question, lying at the foundation of much of the
testimony by which sitting Member tried to prove illegal votes cast for
contestant, related to testimony of persons to whom voters had made
declarations. The majority say:
The sitting Member insists that declarations of voters made long
after the election, not under oath, are admissible to prove how they
voted. Even if this evidence were competent, we could not under the
rule just cited add more than 10 to the votes involved in doubt; in any
view, therefore, the contestant's plurality can not be overcome. But we
believe that these unsworn declarations of voters made after the
election are hearsay and inadmissible for any purpose. It has been
attempted to justify the admission of this species of evidence upon the
pretext that the voters are parties to the case. They are not served
with notice; they have no right to appear in the contest in their own
right, either in person or by counsel; they can not of their own motion
even present themselves as witnesses. They are as much strangers to the
case as the men of the district who did not vote or the women and
children of the district or the other people of the United States.
It is also urged that this is a public inquiry, and therefore a more
liberal rule of evidence ought to prevail. But we fail to discover in
this suggestion any good reason why a controversy involving the right
to represent 150,000 people and to make laws for the entire Union
should be adjudicated upon evidence which the courts have always
rejected in other causes.
In the early cases of contested elections they originated in the
House, and the witnesses were examined in the presence of the Committee
on Elections or of a subcommittee detailed for that purpose. Under this
practice there was possibly more significance in this suggestion of ``a
public inquiry,'' many of the cases arising upon memorials of private
citizens. It was during the prevalence of this practice that the
celebrated New Jersey case arose. Cases in the English House of Commons
were originated and conducted in a similar manner. But since Congress
passed the act governing contested elections they are instituted upon
regular pleadings like any other suit, the proofs taken by the parties
before designated officers, and all the proceedings are conformed to
judicial precedents. We respectfully submit that it is greatly to be
desired that these cases should be adjudicated upon the principles as
well as the forms which prevail in the courts.
The vicious tendency of hearsay evidence in election cases needs no
demonstration. An unlawful vote may be cast for one party, and then
upon the unsworn statement of the voter it may be deducted from the
other party.
And we deny that the weight of authority is in favor of the admission
of this class of testimony. On the contrary, we affirm that the
overwhelming weight of authority supports the view which we have taken.
Sec. 988
In the debate this point was much controverted, and Mr. Turner \1\
insisted that the House should not follow the English precedents, which
were originally established when voting was viva voce and when the
voter's declaration, being as to qualification, and therefore being
against his own competency, was received. But the American cases were
the other way, and he referred to Letcher v. Moore, and especially to
Farlee v. Runk, where such testimony as ``He told me he voted for Mr.
Runk'' was not approved. The case of Cessna v. Myers was also cited as
a main authority. Bell v. Snyder and Newland v. Graham were also
referred to, while it was denied that the case of Vallandigham v.
Campbell was as cited by the minority.\2\
The minority views contend:
The case of Cessna v. Myers (Contest. Elect., 1871-1876, p. 60) has
been supposed to be authority opposed to the admission of this class of
testimony. While the report discusses the question, and it is stated
that some of the committee think that such declarations are only
admissible when part of the res gestse, and all agree that such
evidence should be received with caution, only to be acted on when
declarations are clearly proved and in themselves satisfactory (p. 65),
the committee and the House did consider the testimony and act upon it
in deciding the case. So, notwithstanding the discussion of the subject
and the expression of the opinion of the member of the committee who
framed the report, the case is an authority in favor of the
admissibility of such testimony, holding ``evidence of hearsay
declarations of the voter can only be acted upon when the fact that he
voted has been shown by evidence aliunde, and the declarations clearly
proved and are themselves clear and satisfactory'' (p. 67).
Cook v. Cutts, Forty-seventh Congress, ought to be mentioned perhaps.
What is said on the subject in the report of that case, as the writer
of this report knows, was not the result of a decision by the
committee. The question was not essential to the determination of the
case, but that turned upon other grounds.
This subject was most elaborately discussed in the case of
Vallandigham v. Campbell, and the conclusion reached sanctioned by the
House, was that such declarations are admissible.
The report has distinguished names attached to it, such as Mr. Lams,
(now Senator), from Mississippi, and Ex-Governor J. W. Stevenson, of
Kentucky.
This case is cited and approved in People v. Pease (27 N. Y., 51).
The doctrine contended for is upheld in State v. Oliver (23 Wis.,
319, 327).
The person assailing the right of the voter and charging against him
moral turpitude and crime in the unlawful exercise of the franchise
should not be compelled to make this alleged dishonest adversary his
own witness, thus giving validity to his testimony. The doctrine is
well settled that it is not necessary in such cases to first call the
voter:
``It was not done in any of the cases decided in the British
Parliament. It is not necessary in settlement cases, where the
declarations of the parishioner may be given in evidence, and the
Supreme Court of the United States has expressly decided that where a
witness can not be compelled to answer he need not be called. (1
Greenleaf on Ev., 175; 6 Peters, 352-367. Vallandigham. v. Campbell,
supra.)''
Wigginton v. Pacheco (Cases 1876, p. 10).
The common-law rule as to hearsay evidence can not be made to apply.
If so, it would apply and exclude the evidence just as much after the
voter had been called and refused to testify as before.
The suggestion of the chairman of the committee that the rule of
admitting the declaration of voters as to how they voted originated in
the House in the early cases of contest, when witnesses were summoned
and testified personally before the Committee on Elections, in no sense
destroys the force or reason for the rule. If competent in one case it
must be dearly competent in the other. He fails to state, what is the
fact, that the rule has been followed since Congress passed the act
governing contested elections. Notably in the case of Vallandigham v.
Campbell in 1858, and in the very recent case of Wigginton v. Pacheco
in 1877, and in other cases. The fact that election cases are tried
upon pleadings now instead of upon a memorial can not be justly held to
change the rule in question. This does not make the contest any more a
proceeding, inter partes than it was before. The public has the same
interest and rights in the contest as they ever had.
-----------------------------------------------------------------------
\1\ Record, p. 4592.
\2\ See also Record, pp. 4578, 4579, 4582, and 4583, for speeches of
Messrs. Cook and Hurd reviewing precedents, especially the English.
Sec. 989
989. The election case of Wallace v. McKinley, continued.
To reject votes cast by persons alleged not to have lived within the
precinct, the best evidence regarding precinct lines should be
produced.
Discussion as to the qualifications of paupers residing in an alms
house.
Where returned Member's name was written on an opposition ballot
under contestant's, with the latter not scratched, the vote was counted
for returned Member.
The fact that a voter was registered in a county infirmary as an
idiot, did not avail to cause rejection of his vote as illegal under
the law.
The vote of a person under guardianship for lunacy was sustained on
testimony that he was employed in a position of some responsibility.
(4) As to votes alleged to have been cast by persons not living
within the precinct, the majority say:
In this list there are 5 votes alleged to have been cast for
contestant in wards of the city of Canton in which the voters did not
reside, and 2 votes said to have been cast for contestant in townships
in which it is claimed the voters did not reside. In these cases a
dispute arose as to the boundaries of these voting subdivisions, and if
the highest evidence should be required on this question, the municipal
ordinances or official action of the local authority having
jurisdiction and establishing these boundaries should have been
produced. In the city of Canton it is alleged, and not denied, that a
very recent change of ward limits had been made.
The minority say:
John Rigler, Frank Walters, M. Zilch, Daniel Winkleman, Celestin
Jourdain, are proved to have voted in the wrong wards in Canton. They
each admnt this, and say upon oath that they voted for Mr. Wallace.
It is expressly provided by the constitution of the State of Ohio,
article 5, section 1, that to be an elector requires residence in the
State for one year, and of the ``county, township, or ward, in which he
resides such time as may be provided by law.''
Section 2945 Revised Statutes of Ohio, 1880, provides that--
``No person shall be permitted to vote at any election unless he
shall have been a resident of the State for one year, resident of the
county for thirty days, and resident of the township, village, or ward
of a city or village for twenty days next preceding the election at
which he offers to vote, except where he is the head of a family and
has resided in the State and in the county in which such township,
village, or ward of a city or village is situate the length of time
required to entitle a person to vote under the provisions of this
title, and shall bona fide remove with his family from one ward to any
other ward in such city or village, or from a ward of such city or
village to a township or village in the same county, or from a township
or village to a ward of a city or village in the same county, or from
one township to another in the same county, in which cases such person
shall have the right to vote in such township, village, or ward of a
city or village without having resided therein the length of time above
described to entitle a person to vote.''
Moreover, it is made a crime by the laws of Ohio to vote in a ward or
election precinct in which the voter has not actually resided for more
than twenty days preceding the election. (Rev. Stats. of Ohio, 1880,
Sec. 7047.)
This precise question was passed upon in the case of Vallandigham v.
Campbell (Contested Election Cases, 1834-865, p. 232):
``Of nonresidents of the ward or township, two votes are disputed by
the returned Member and none by the contestant. It is not denied that
both of these voters were legal electors of the county; but having
voted (though not fraudulently, but by mistake) out of their proper
wards, the undersigned find the votes illegal and deduct them from the
poll of the contestant. (Report Vallandigham v. Campbell, supra. See
also Cushing's Law and Pr. Leg. Assemb., 9th ed., Sec. 24. Cook v.
Cutts, 47th Congress. Wigginton v. Pacheco, Contested Elections,
1876.)''
Sec. 989
The same is true of John Moriarty, who voted in the wrong precinct in
Alliance, Stark County. (Rec., p. 400; J. W. Coulter, p. 401.)
Jos. Bittaker.-- He voted in Sugar Creek Township for Mr. Wallace.
The testimony shows that he resided with his father in Franklin
Township, Tuscarawas County. He recognized the fact that he had no
right to vote in Sugar Creek Township, and said he would offer to vote,
and, if challenged, would go away.
The evidence is that he was a Democrat in politics. It is not denied
by contestant in his brief that he was a Democrat, and no question is
made apparently about his having voted the Democratic ticket.
In the debate \1\ it was not denied that the votes should be deducted
if they were shown to have been cast by persons proved legally to have
lived out of the precinct; but it was objected that the testimony was
not conclusive, since no competent evidence was produced that the ward
lines were changed, and the testimony of a voter that he finds by a map
(not adequately proven as official) that he lived out of the precinct
was not admissible.
(5) The minority laid stress on certain votes of paupers:
It appeared in evidence that Charles Ducatry, M. Stimler, B.
Waldecker, and Joseph Frickert were inmates of the Stark County
Infirmary, situate in Plain Township. Ducatry voted at Louisville,
Nimishillen Township; Stimler voted in Washington Township; Waldecker
and Frickert in Canton Township, and all voted for Mr. Wallace.
An inmate of a county infirmary, who has adopted the township in
which the infirmary is situated as his place of residence, is a
resident and voter in the township in which the infirmary is situated.
(Sturgeon v. Korte, 34 Ohio St., 525.)
Each of these persons states, unequivocally, that he regarded the
poorhouse as his home, had no other home, and never expected to leave
the infirmary. They said they voted in the townships to which they were
taken to vote because they were told to do so. Frickert said he voted
in Canton because he got his papers there. None of them, owing to
poverty, great age, and infirmity, had any expectation of living
elsewhere. They had a right to vote in Plain Township, and nowhere
else.
The majority report does not consider this question specifically; but
in the debate \2\ it was shown that these four voted at this election
in their old homes as they had done before, and it was claimed that the
decision of the supreme court of Ohio did not go to the extent of
compelling them to vote in the precinct where the institution was
located. They had a right to elect, on the theory put forth on behalf
of the majority.
(6) The majority concluded that votes should be counted under these
circumstances:
Again, a recount was also had in Austintown Township, Mahoning
County, at the instance of the sitting Member, and 2 ballots were found
in the box which had not been counted by the judges of election. On one
of these ballots the name of the contestant was written under the
printed name of the sitting Member, and on the other the name of the
sitting Member was written under the printed name of the contestant,
and the printed name on each had not been erased. These ballots should,
we think, have been counted according to the written names appearing on
them.
The minority say:
The ballot shown to have been voted in Selem Township,
Washingtonville precinct, and not counted, was a regular Democratic
ticket, with Mr. McKinley's name written in full under the name of Mr.
Wallace as a candidate for Congress, the name of Mr. Wallace not,
however, being scratched. The writing should prevail, and the ticket
not having been counted should be added to Mr. McKinley's Poll.
-----------------------------------------------------------------------
\1\ Speech of Mr. Adams, of New York, Record, p. 4537.
\2\ Speech of Mr. Adams, Record, pp. 4536, 4537.
Sec. 989
(7) As to certain alleged incompetent voters the minority views say:
Samuel Thompson was a Democrat, and always voted that ticket; he
voted at the election in this township, and unquestionably voted for
Mr. Wallace. He is an inmate of the county infirmary, and registered
there as an idiot, and if the proof shows that he is an idiot, under
the constitution of the State he is not a legal elector. (Constitution
of Ohio, art. 5, sec. 6.)
(Thos. H. White, Rec., p. 163; Craig D. Filson, Rec., p. 165; Wm.
Davidson, Rec., p. 168; Horace P. Hessin, Rec., p. 170; A. J. Cowan,
Rec., p. 443; Jas. Brubeck, Rec., p. 446.)
Michael Higgins voted at the election in Leetonia precinct. He was an
insane person, under guardianship as such, and, his own declarations
show, was not of sufficient intelligence to know how he voted; although
there is some conflict in the testimony, we do not think there is
sufficient evidence to overcome the presumption arising from the
inquisition of lunacy and the appointment of the guardian, which is
shown.
The only proof of the person for whom he voted is the testimony
showing that he came to vote with his fellow railroad-track hands, who
were Democrats, was living with his brother, who was a Democrat, and
was understood to be a Democrat; but we think the evidence is
sufficient on the authority of the case of Vallandigham, v. Campbell,
supra, and the authorities there cited. (See pp. 233, 234.)
In the debate \1\ it was claimed on behalf of the majority that these
two votes were competent, Higgins being employed as a railroad hand to
act as watchman at a crossing. His employers testified that he was
competent for that responsible service.
(8) The minority set forth in their views this rule, which they
conceived should prevail:
The House will please observe that the evidence adduced by contestee,
and the substance of which has been given or referred to in his report
in support of his claim as to the said list of 55 alleged illegal
voters for contestant, stands substantially without contradiction or
conflict. Evidence in rebuttal was introduced by contestant only in a
very few instances, and none at all as to the votes in Liverpool
Township. In the few cases where evidence in rebuttal was taken it
served only to confirm the evidence in chief. If the evidence was not
true contestant had the means and an ample opportunity to refute it and
show how the facts were. When the legality of votes is assailed, upon
notice and answer, and the issue is formed, that issue is to be fairly
heard and tried upon evidence. When one party adduces apparently
credible evidence, sufficient of itself to maintain the issue, the
opposite party is called upon to meet it; and if he does not do it,
with the means at hand, there can be but one reasonable conclusion, and
that is that there was no answer to it. The committee adopted such a
rule in the case of Manzanares v. Luna, decided at the present session.
The majority report does not discuss this subject.
(9) The remaining questions involved in the report were largely as to
facts and the credibility of testimony.
The majority of the committee, in accordance with their reasoning,
concluded that contestant was elected, and proposed these resolutions:
Resolved, That William McKinley, jr., was not elected a Member of the
Forty-eighth Congress and is not entitled to a seat in this House.
Resolved, That Jonathan H. Wallace was elected a Member of the Forty-
eighth Congress and is entitled to a seat in this House.
The minority contended that sitting Member was elected by 67
majority.
The report was debated at length on May 26 and 27,\2\ and on the
latter day a
-----------------------------------------------------------------------
\1\ Speech of Mr. Turner, Record, p. 4591.
\2\ Record, pp. 4523, 4568-4594; Journal, pp. 1325-1327. Appendix,
pp. 257, 415.
Sec. 990
motion to substitute a proposition of the minority declaring sitting
Member entitled to the seat was disagreed to, yeas 108, nays 158.
The resolutions of the majority were then agreed to without division.
Mr. Wallace thereupon appeared and took the oath.
990. The Indiana election case of English v. Peelle, in the Forty-
eighth Congress.
The House reluctantly sustained a report holding that the use, with
fraudulent intent, of very thick paper for ballots, constituted a
distinguishing mark.
The House reluctantly sustained an unauthorized recount made
incidentally during a legal recount for a State office.
The House rejected votes cast by prisoners brought from the jail to
the polls and voting under duress.
The House rejected the votes of paupers who were carried to the polls
by officers and compelled to vote contrary to their party affiliations.
On May 14, 1884,\1\ Mr. George L. Converse, of Ohio, from the
Committee on Elections, submitted the report of the majority of the
committee in the Indiana contested case of English v. Peelle. Sitting
Member had been returned elected by an official majority of 87 over the
contestant.
The entire controversy was confined to the single county of Marion,
and principally to the city of Indianapolis.
The majority report at the outset charged that all but two election
precincts in the city were under control of sitting Member's party, and
that the other party had but one out of 56 election inspectors. But in
the minority views and the debate \2\ it was pointed out that at each
and every precinct contestant's party was represented by a judge, a
clerk, and a watcher. The law of Indiana required this representation,
and the law was complied with.
The majority report charged, and it does not appear to have been
denied, that the police force was controlled by sitting Member's party.
The examination of this case involved the discussion of several
points.
(1) The alleged destruction of the secrecy of the ballot.
The report says:
The work of the police and other Republican officials in intimidating
and unduly influencing voters was no doubt facilitated by tickets that
were used by the Republicans in Marion County at this election,
commonly called ``springback tickets,'' because printed on a material
that would spring open when lightly folded, thus facilitating double
voting. These tickets were printed on a material called ``plate,'' such
as is generally used by lithographers. It was bought and billed to the
party who printed the tickets as ``plate.'' This material is not plain
paper such as is ordinarily used for printing, and especially for
printing election ballots. The witnesses say they never knew such
material to be used for election tickets before. It is a thick, heavy
material, of such finish, bulk, and texture as to be easily
distinguishable from tickets printed on ordinary paper, and for that
reason contestant claims that it is in violation of the Indiana
statute, which reads as follows:
``All ballots which may be cast at any election hereafter holden in
this State shall be written or printed on plain white paper of a
uniform width of 3 inches, without any distinguishing marks or other
embellishments thereon except the names of the candidates and the
offices for which they were voted.'' (Sec. 4701, Revised Statutes of
1881.)
-----------------------------------------------------------------------
\1\ First session Forty-eighth Congress, House Report 1547; Mobley,
p. 167.
\2\ Record, p. 1343.
Sec. 990
And also that it is in violation of the spirit of the constitution of
Indiana, which provides that all elections by the people shall be by
ballot. (Art. 2, sec. 13.)
In William v. Stein, 38 Indiana, page 89, the supreme court construed
the provisions of the constitution above referred to. It was there
decided that the word ``ballot,'' as used in the constitution, ``beyond
doubt * * * implies absolute and inviolable secrecy, and that the
principle is founded in the highest consideration of public policy.''
(P. 95.)
The court quotes from Cooley's Con. Lim., 604, as follows:
``These statutes are simply declaratory of the constitutional
principle that inheres in the system of voting by ballot, and which
ought to be inviolable, whether declared or not. In the absence of such
a statute, all devices by which party managers are enabled to
distinguish ballots in the hands of the voter, and thus determine
whether he is voting for or against them, are opposed to the spirit of
the constitution, inasmuch as they tend to defeat the design for which
voting by ballot is established.''
The evidence is conclusive that these tickets could be, and were,
distinguished in the hands of the voters from 15 to 30 feet distant,
and the secrecy of the ballot guaranteed by the constitution and laws
of a sovereign State was thus destroyed in Marion County. One of the
Republican managers, who was instrumental in getting up the tickets,
stated that they were gotten up as ``a scheme to beat the Democrats.''
Another prominent Republican admitted on the day of election that the
tickets were fraudulent and gotten up for fraudulent purposes. (Rec.,
pp. 103-121.) The fraudulent intent is apparent. There were 12,551 of
these fraudulent tickets voted at that election in Marion County, and
it is shown that the Democrats formally protested against receiving and
counting these tickets. (Rec., pp. 67, 124, 126, 121.)
Your committee hold that the object of the ballot system is secrecy;
that when the constitution of Indiana said her citizens should vote by
ballot it meant a secret ballot; that when the legislature said that
the ballots should have no embellishments or other distinguishing marks
it meant that the ticket should be such that it could not be known for
whom the voter was casting his ballot; that any ticket printed on
material, plain white in color though it be, yet so thick as to be
readily distinguished from ordinary paper in use for such purposes, is
as much a distinguishing mark and as much in violation of law as if it
had the photograph of the candidate printed on it. The evidence
discloses in this case a deep-laid and cunningly devised scheme to
avoid the statute and to compel the poor and humble voter to ``show his
hand'' to his party and his employer. The fact appears that some voters
came to the polls to vote, and on discovering the character of the
ticket refused to vote and went away. Others undoubtedly were
constrained to vote by these mean and the circumstances surrounding
them against their will. The fraud on the part of the friends of
contestee is glaring and so well established that if there were no
other facts in the case than those connected with the ``spring-back
tickets'' your committee would find no difficulty in setting aside the
election and but little in recommending the seating of the contestant.
The minority views, presented by Mr. Alphonso Hart, of Ohio,
dissented from the above view.
There is nothing in the statute of Indiana declaring either a penalty
for the violation of this law or declaring that ballots on any other
kind of paper are invalid.
There is no doubt, indeed it is admitted, that the ticket used by the
Republicans at that election and upon which the name of Mr. Peelle
appeared conforms strictly to the letter of the foregoing statute. It
was a ticket printed upon plain white paper; it was of the length and
width required by the statute; it had no mark or device upon it such as
is prohibited by the statute, and the only claim that is made against
the ticket at all is that, although it was of plain white paper and of
the proper length and width, it was of greater thickness than that
which is ordinarily used, and that by reason of this thickness the
ticket could be detected in the hands of the voter and distinguished
from the other tickets that were cast. It seems to us that it as
clearly complies with the requirements of the statute as the two other
tickets that were in the field. They were all of plain white paper and
of the proper length and width. The Republican ticket is printed on No.
2 book paper, the Democratic ticket is printed on No. 3 book paper or a
high grade of newspaper, and the National ticket on common newspaper.
But no two of the tickets, either the National or the Democratic or the
Republican, were exactly alike in thickness, and in weight of paper.
Which of these should be the standard? If they had all three been of
the same kind, whether of the thickest or the thinnest, they would have
complied with the statute and no objec-
Sec. 990
tion could possibly have been made; it is only upon the ground that one
is thicker than the other, or that one is thinner than the other, that
exception is taken. If it be contended that the Republican ticket could
be identified because it was thicker than the Democratic ticket, it can
with equal force be charged that the latter can be detected because it
was thinner than the Republican.
From the testimony which appears in the record there certainly can be
nothing said against the validity or the legality of the ticket in
question. It as clearly complied with the provisions of the statute as
the others, and it would be an extraordinary position to take after a
ticket had been cast by as many thousand voters as is found to be the
case in this instance with the character of the ticket well known, to
say that all of these voters should be disfranchised in consequence of
the single fact that the ticket, although complying strictly with the
provisions of the law, was a little thicker than in the judgment of the
friends of Mr. English it ought to have been.
It is claimed by the majority report that the purpose of the
Republicans in using this kind of paper was to enable persons to
identify the ticket in the hands of the holder. This is wholly
unwarranted. The proof shows that the only object was to prevent the
ticket from being counterfeited, and also to prevent the tickets, when
in bunches, from sticking together, and all intention to violate or
evade the law is expressly denied.
The law was not violated. It not only complies with the statute, but
is fully sustained by the judicial authority of Indiana, not only in
this particular instance, but in other cases where the principle is
involved.
It appears from the record that after the November election a contest
arose in the courts of Indian as to the matter of sheriff in Marion
County. J. W. Hess was the Republican candidate and D. A. Lemon the
Democratic candidate. Hess was shown by the returns to be elected by 12
votes. Lemon contested the election. A recount of votes was had,
resulting in increasing the majority of Hess over 40. The tickets upon
which Mr. Hess was elected were the same as that upon which the name of
Mr. Peelle appeared.
One of the points made was the legality of the ticket.
If the ticket was illegal as to Peelle--that is, if it was on the
wrong kind of paper--then it was equally so as to Hess, and yet in the
election contest for the sheriffalty the court sustained the validity
of the ballot upon which the name of Hess appeared, and thereby gave
its sanction to the one upon which the name of Peelle appeared, they
being the same. It follows from this that in the judgment of the court
of competent jurisdiction no objection can be made or was made to the
character of the ballot that was used.
This is, to a certain extent, an adjudication of the matter. But,
beyond this, a still more important consideration arises. What was the
character of the law of Indiana designating the kind of ballot which
was to be used, and the paper upon which the ticket was to be printed?
Was it directory or mandatory; was it a penal statute or otherwise? If
it was merely directory, or even if it was intended to be a penal
statute, then the penalty as well as the wrong must attach only to
those parties who printed the tickets. It can not attach to the voter,
and it would be a matter of very great injustice to deprive the
citizens of the State of Indiana who voted this ticket of the right to
be heard through the ballot box, simply because the paper upon which
the ticket voted by them was printed is alleged not to be strictly of
such a character as is required by statute. The whole theory of a
Government which is to be managed and controlled by the people
exercising the elective franchise is that their will, when fairly and
honestly expressed, shall be the law and shall be respected by all the
authorities. There can be no doubt but that the voters of the seventh
district, in the use of the ticket to which attention has been called,
honestly intended to express their judgment as to who should be chosen
for the respective offices named. We think, therefore, for this reason,
as well as for the other reasons already given, that this vote should
stand as the expression of the will of the people of the seventh
district and of the State of Indiana.
In the debate the question of the illegality of the tickets was
treated as of importance, and it was argued that they were illegal,
although no attempt was apparently made to ascertain their number, and
no specific reduction or rejection of the poll was proposed.
(2) The value of an unofficial count in determining the true state of
the vote, the official return being alleged to be impeached.
Sec. 990
The majority report declares that the credit due to the returns of
the several precinct officers is greatly impaired by the fact ``that 54
of the 56 voting places in the city were controlled by partisan
officers who were more or less parties to the general fraudulent intent
which pervaded the Republican managers.'' ``And it is further
impaired,'' says the report, ``by the fact that it has been officially
determined by a Republican board, who, under the law of the State and
by the appointment and approval of a Republican judge, made a recount
of the votes for sheriff at the same election, that the official
returns were false and unreliable as to sheriff.'' The report then
continues:
When once the taint of fraud or unreliability is attached to the
official count its value is gone, and we must look to other sources for
better information. The law of Indiana in regard to the preservation of
the ballots is as follows:
``As soon as the votes are counted, and before the certificate of the
judges, prescribed in the foregoing section, is made out, the ballots,
with one of the lists of voters and one of the tally papers, shall in
the presence of the judges and clerks be carefully and securely placed
by the inspector, in the presence of the judges, in a strong and stout
paper envelope or bag, which shall then be tightly closed and well
sealed with wax by the inspector, and shall be delivered by such
inspector to the county clerk at the very earliest possible period
before or on the Thursday next succeeding such election, and the
inspector shall securely keep said envelope containing the ballots and
papers therein, and permit no one to open said envelope, or touch or
tamper with the said ballots or papers therein; and upon the delivery
of such envelope to the clerk, said inspector shall take and subscribe
an oath, before said clerk, that he has securely kept said envelope and
the ballots and papers therein; and that after said envelope had been
closed and sealed by him in the presence of the judges and clerks, he
had not suffered or permitted any person to break the seal, or open
said envelope, or touch or tamper with said ballots or papers, and that
no person has broken such seal or opened said envelope, to his
knowledge, which oath shall be filed in said clerk's office with the
other election papers. The clerk shall securely keep said envelope so
sealed, with the ballots and papers therein, in the same condition as
it was received by him from the inspector.'' (Rev. Stat., 1881, secs.
4713, 4714.)
It will be seen the law required the ballots to be carefully sealed
up and delivered to the clerk. In this case the clerk, D. M. Ramsdall,
is the same person who was chairman of the Republican county committee,
and who selected the ``plate ``for and aided in getting up the illegal
``spring-back ``ticket. (See his deposition, Rec., pp. 365-367.) On the
same day of the election for Congress a sheriff was to be elected for
the county. There was a contest, and the circuit court, presided over
by a Republican judge, under the laws of Indiana appointed a commission
to recount the ballots cast for sheriff. This commission consisted of
two Republicans and one Democrat. These commissioners executed the
order of the court and reported thereto unanimously that the ballots
showed that the returns made by the election officers and board of
canvassers were not correct; on the contrary were full of errors,
amounting in the aggregate to 49 votes. (See Rec., pp. 86, 403, 410.)
Hon. Austin H. Brown, one of these commissioners, an experienced and
able expert, and a gentleman of the very highest character and
standing, testified that at the same time he carefully examined and
counted every vote for English and Peelle for Congress; that the
returns were full of errors as to the vote for Congress, as well as
sheriff; that the errors amounted in the aggregate to 99 votes in favor
of English, and that English was certainly elected.
After calling attention to Mr. Brown's testimony, the report
continues:
This testimony of Mr. Brown, one of the commissioners appointed by
the court to count the ballots for sheriff, also shows he counted the
ballots at the same time for Congress. He conclusively proves that the
errors amounted in the aggregate to 99 votes in favor of contestant.
The value of the recount made by him must turn upon the capacity of
Mr. Brown to make the count and his veracity in testifying in regard to
it. If these are both established, as much weight should be given his
count as if he had been directed by the court to make it. That they are
fully established let the following testimony, both as to his integrity
and capacity, bear witness.
Sec. 990
The report also cites testimony to show the reliability of the
witness and his capacity as a man of affairs, able and skilled to make
a recount.
The minority views assail this recount, saying of the commissioners:
They were not instructed to make the count as to any other candidate.
They were sworn to make the count upon the matter of sheriff honestly
and truly, and this was the extent of their authority and duty. A short
time, perhaps a clay or two, before the count began by these three
commissioners, William H. English, the father of the contestant,
approached Mr. Brown and employed him to make also a count as to the
votes received by the respective candidates for Congress. This was a
private arrangement, the service to be rendered by Brown for a
consideration to be paid by English. No other member of the commission
was spoken to upon the subject. Nine wards were counted during the
first and second days. Brown claims that while counting the vote upon
sheriff he also counted the vote upon Congress for those nine wards. It
is an admitted fact that he did not communicate to anyone what he was
doing. On the second day Mr. Byram, one of the other commissioners,
became aware of the fact that Brown was making the count upon Congress,
and from that time afterwards, during the remainder of the count of
Marion County, they together kept count as to the Member of Congress.
At the end of the count, according to the testimony of Mr. Byram,
Peelle had gained so that his majority in Marion County would have been
767 instead of 640, a gain of 127. But Mr. Byram. did not claim that
this count was absolutely correct, but that it was as nearly correct as
could be made under the circumstances, he doing the best he could.
The minority call attention to the fact that Mr. Brown testified that
in his opinion the ballots had been tampered with, since the ticket
which he himself voted in a certain precinct he had marked, but could
not find it when the recount was made.
Say the minority:
If it is to be granted as a fact that the ballots in Marion County,
after the election and before the count made for sheriff by these
commissioners, had been tampered with, then according to all the
authorities upon the subject, without an exception, the subsequent
count made by Brown, or by anybody else, is wholly unreliable and never
can be considered or treated as overcoming the original official count.
The contestant, by making this claim, entirely admits away his case.
Outside of the statement of Mr. Brown there is no evidence, so far as
we know, that any improper action had been taken in regard to these
ballots. They had been from the time of the November election up to the
time of the count in the custody of the proper sworn officers. But he
claims, and his counsel insist, that the ballots had been tampered
with, and we answer, if this be so, then it furnishes a reason why the
count made by Brown can not be relied upon to overcome the official
returns.
But there are other reasons still stronger why no reliance whatever
can be placed upon his action in this matter.
First. He was the hired agent and employee of William H. English, a
party interested in disturbing the count and making a ground of
contest. He would naturally, almost inevitably, be inclined to take
such action and make such a report of his proceedings as would favor
the purpose had in view by Mr. English, his employer.
Second. The count made by him in the beginning was secretly made, and
made with the evident purpose of accomplishing something which it was
not intended anybody else should have knowledge of.
Third. Mr. Brown, upon his examination on the witness stand, is
unable to give any intelligent statement of the condition of the vote
in a single precinct in Marion County. He claims that, as he made the
count of the first nine wards, he took a memorandum of the vote that
was cast for each of the candidates for Congress, and that at the end
of his count, from the data thus gathered, he made an estimate, and
that the estimate which he made decreased the majority of Peelle 99. It
is a very singular circumstance that when he is placed upon the stand
all of these memoranda which he swears were taken at the time, and
which if taken would indicate the character of the vote in the
respective precincts, are missing. He is not able to produce a single
scrap of paper showing the condition of the count in the
Sec. 990
precincts. He does, however, produce a paper in which he claims to have
summed up the result of his investigation and which is put in the form
of a declaration showing that there is a gain for Mr. English and a
corresponding loss for Mr. Peelle of 99 in that county. He claims that
the other memoranda which he took are lost.
Under the circumstances the disappearance of these papers, which
every man of ordinary intelligence must have known would be very
important, is a strange and a suspicious circumstance, affecting the
integrity of Brown's deposition. In his examination he is unable to
swear to anything save the final result as he claims he figured it out.
He can not even tell the number of votes that were received by Peelle,
or the number of votes that were received by English. He can not tell
the number of votes given for either of these candidates in any ward or
precinct. He can not give an intelligent statement of the condition of
the vote either in the county as a whole or in any portion of the
county.
Fourth. There is another circumstance which is of very great
significance in the consideration of Brown's testimony. After his
associate commissioners, who were helping him count the vote upon
sheriff , had discovered what Brown was at there is no further increase
of the vote of English, but, on the contrary, an increase of the vote
of Peelle from that time forward.
Fifth. When the commissioners appointed, as we have stated, to count
the vote upon sheriff in Marion County had concluded their work, the
subject of the vote upon Member of Congress was talked over between
them. In that conversation the remark was made by Byram and Adams that
a recount of the vote upon Members of Congress would result in
increasing the majority of Mr. Peelle, and the testimony is that all
three of the commissioners, including Brown, concurred in this
statement. The testimony further is that Mr. Brown at that time made
the declaration that ``there was nothing in a recount for Mr.
English,'' and that he should so report to Mr. William H. English, his
employer. These facts are testified to by Byram, Adam, and Hawkins.
In view of these facts, what possible weight can be given to the
testimony of Mr. Brown? The count which he made was an unsworn and
unauthorized count; it was a count made not under oath; it was made
under circumstances wherein if he did the best he could it would be
very difficult to be accurate, for the reason that his work as
commissioner to count the vote upon sheriff would necessarily require
his attention, and the matter of count upon Member of Congress would be
only incidental.
Then again, as already appears, his inability to give an intelligent
statement of the condition of the vote, and his admission that there
was nothing in the count which would benefit Mr. English, will surely
destroy his testimony. Now, the question comes, shall we permit the
testimony of Brown, given under these circumstances and so thoroughly
impeached by circumstances and by contradictory statements made by
himself, to overcome the sworn official statement and returns of the
inspectors and judges of election, made under oath and in the
performance of their duty? To this inquiry there can be but one answer.
It seems to us that no just-minded person will permit an election to be
overturned upon so flimsy a pretense.
(3) The majority report also charges that about 34 or more prisoners
from the county jail were taken to the polls and compelled to vote for
contestee. But it appears from the minority view that ``there were
seven inmates of the jail who voted. They were shown to be legal voters
in that precinct. Two others offered to vote, and their votes were
challenged and rejected.''
The majority report also asserts that 51 paupers from the county
poorhouse were carried to the polls by the officers of the institution
and compelled to vote for Peelle, and that two-thirds of them were
proven to be Democrats. The minority say it was admitted that these
persons were entitled to vote, and that there was no evidence that they
were prevented from voting for the person of their choice. Not one of
them was called as a witness.
(4) It was also claimed on behalf of contestant that 100 votes were
lost to him because the police officers intimidated voters who
approached the polls, and deterred them from voting.
Sec. 990
The minority report says on this point:
In this connection it may not be improper to refer to the position
taken in the report of the majority upon this point. It is claimed that
about 100 persons were kept from the polls. There is not a particle of
testimony in the whole record justifying any such conclusion. There are
less than 350 voters in the precinct in question, and the returns show
that 309 persons voted. The witnesses for contestant were able to give
the name of but one man whom they claimed was rejected, while the
inspector of election swears that not a single person who made the
proper affidavit was denied his vote.
In the debate \1\ much stress was laid on the fact that the names of
these 100 men were not given; that none of them had been called to
testify. Six witnesses who were called estimated that a hundred men who
would have voted for contestant were kept from voting. Mr. Hart in
debate asserted that it would be a most remarkable thing to count 100
votes for contestant by putting these 100 unknown names on the poll.
The majority thus recapitulated their conclusions:
To recapitulate:
(1) The correction of the error in counting the vote in Marion County
gives contestant 99 additional votes.
(2) The fraud and coercion practiced upon the 51 paupers, 34 of whom
were Democrats and compelled to vote for contestee, would, if
corrected, add to contestant's vote 68 additional votes.
(3) The fraudulent jail vote counted for contestee makes in the
result a difference of 34 additional votes.
(4) The 12 counterfeit tickets which were counted for contestee, and
should have been counted for contestant, make in the result 24
additional votes.
(5) Votes of naturalized citizens, and others fraudulently rejected,
100 additional votes. Total, 325 votes.
(6) The destruction of the secrecy of the ballot by contestee's
friends in the use of the springback tickets undoubtedly made a
difference in his favor of several hundred more votes in the final
result to which he is not entitled.
Your committee are therefore clearly of the opinion that the
contestant, William E. English, was duly elected and is entitled to the
seat in the House of Representatives in the Forty-eighth Congress from
the Seventh Congressional district of Indiana, and recommend the
adoption of the following resolutions:
Resolved, That Stanton J. Peelle was not elected a Member of the
Forty-eighth Congress of the United States from the Seventh
Congressional district of Indiana, and is not entitled to the seat he
now holds.
Resolved, That William E. English was duly elected a Member of the
Forty-eighth Congress of the United States from the Seventh
Congressional district of Indiana, and is entitled to his seat.
The minority reported a resolution declaring Mr. Peelle entitled to
retain the seat.
The report was debated on May 20 and 21,\2\ the most important
questions in the view of the House being the thick ballots and the
authority of the recount.
On May 21 \3\ the vote was taken on substituting the minority
proposition for that of the majority, and there appeared yeas 121, nays
117. Then, by a vote of 119 to 118 the House adjourned, after a motion
to reconsider had been made.
On May 22 a motion to lay on the table the motion to reconsider was
disagreed to, yeas 132, nays 132. Then the motion to reconsider was
agreed to yeas 133, nays 130.
-----------------------------------------------------------------------
\1\ Record, p. 4345.
\2\ Record, pp. 4339, 4358-4377.
\3\ Journal, pp. 1283, 1285-1288, 1299, 1300.
Sec. 991
Thereupon Mr. Thomas M. Browne, of Indiana, moved to recommit the
subject to the Committee on Elections ``with instructions to make a
recount of the ballots cast for the contestant and contestee * * * at
the several precincts in the county of Marion.''
This motion was disagreed to, yeas 124, nays 134.
Then the question recurring on the substitute proposed by the
minority, it was disagreed to, yeas 128, nays 129.
The resolutions of the majority were then agreed to, yeas 130, nays
127.
Mr. English thereupon appeared and took the oath.
991. The Ohio election case of Campbell v. Morey, in the Forty-eighth
Congress.
Full discussion of the status of college students as having or
lacking the residence qualifications of voters.
Persons within a precinct as students, for a transitory or temporary
purpose, without the interests or burdens of citizens, and going
elsewhere for vacations, were held not to have voting residence.
Discussion as to what constitutes lunacy and idiocy justifying
rejection of a vote.
Discussion as to the residence of paupers living in a public
institution.
As to the principle of deducting unsegregated illegal votes by a
system of computation.
Journeyman mechanics were recognized as having residence within the
precinct where they lived for the statutory time.
A person may not vote in a precinct wherein he does not live,
although required to preside therein as an election officer.
On June 16, 1884,\1\ Mr. Robert Lowry, of Indiana, from the Committee
on Elections, submitted the report of the majority of the committee in
the Ohio contested election case of Campbell v. Morey.
The sitting Member had been returned by an official plurality of 41
votes.
Various questions were involved, but the essential point, dwelt on in
the report and the debate, was as to the rights of certain students as
electors.
The majority thus state the case of the students:
Ninety-six undergraduate college students voted in the precincts
where the colleges are located. Twelve voted for contestant and 84 for
contestee. With few exceptions they were not lawful voters. The statute
of Ohio reads as follows:
``A person shall not be considered to have gained a residence in any
county of this State, into which he comes for temporary purposes
merely, without the intention of making such county his home.''
This statute, and all other Ohio laws bearing on the subject of
residence, are fully discussed in a case decided in the Ohio senate as
recently as April 12, 1884, which seem to us to be a well-considered
case upon the status of college students as electors in Ohio. It is the
case of Mickey v. Loomis, to be found in the appendix to the journal of
the Ohio senate for the session just ended. The following is the agreed
statement of facts:
``It is agreed by the whole committee that, under the testimony, the
decision of this contest shall depend upon the question as to whether
certain students at Oberlin College, coming under the class described
in the following agreed statement of facts, had or had not the right to
vote at the October
-----------------------------------------------------------------------
\1\ First session Forty-eighth Congress, House Report No. 1845;
Mobley, p. 215.
Sec. 991
election in 1883. The following is the agreed statement of facts above
referred to, viz: The following is a substantial statement of the
evidence concerning the right of students at Oberlin College to vote,
and who, it is claimed, voted for Timothy G. Loomis:
``(1) Said voters were students at Oberlin College, in Russia
Township, Lorain County, Ohio.
``(2) They voted there at the October election in 1883.
``(3) They claimed that Oberlin was their residence at that time.
``(4) They went to Oberlin for the purpose of acquiring an education,
and at the time of voting were at Oberlin for that, purpose alone. They
came there from other counties and States, and had been there long
enough to acquire a residence.
``(5) They left the home of their parents, and never intended to
return and make it their home.
``(6) They claim that they have no other place of residence than
Oberlin.
``(7) They claim they have no place in view as a place of residence
after their education is completed.
``(8) These student voters had never been married.
``(9) They were not assessed for tax purposes, and paid no tax in
Oberlin.
``(10) It is admitted as true that Harrison J. Mickey, contestant, is
entitled to his seat in the senate of the sixty-sixth general assembly,
if, upon the facts hereinbefore stated, a student at college is not
entitled to vote at the place where the college is located.''
This statement is decidedly more favorable to the Oberlin students
than the facts developed in the present case are to most of the
students who voted in the seventh district of Ohio, yet under it the
senate held that these students were disqualified, and rejected their
votes.
The subjoined portion of the report is so clear that we quote it:
``In this connection let us look to section 2940 of the Revised
Statutes of Ohio, which prescribes how judges of election shall proceed
when a person offering to vote is challenged as unqualified, on the
ground that he is not a resident of the county or precinct where he
offers to vote. One of the questions required to be put to the person
offering is this: `When you came into this county did you come for a
temporary purpose merely, or for the purpose of making it your home?'
And here it may be remarked, in passing, that in this question, in the
words `or for the purpose of making it your home' is to be found the
legislative definition of the word `residence.' For the wording of
questions 1 and 2 required to be put by the judges, when the person is
challenged on the ground that he is not a resident, is as follows:
`` `(1) Have you resided in this county for thirty days last past?'
`` `(2) Have you resided in this precinct for twenty days last past?'
``But when they come to ascertain the purpose of the voter in coming
into the county the question is, `Was it for a temporary purpose' or
`for the purpose of making it your home?'
``There they use the word that has but one meaning; that word--the
only one--which is understood by all men alike--a word which is as dear
to the savage as to the civilized man--home.
``In quoting to the senate these rules for the guidance of judges of
elections in Ohio--rules that are a part of the statutes of the State--
we might well close our report with our recommendation alone, but we
prefer to support it by authorities, which are conclusive against the
`student vote' as agreed upon in the statement.''
We find much the same idea carried out in all the more recent
decisions in other States. Dale v. Irwin (78 Ill., 170) is a very fine
case; the language of the court is:
``These students were undergraduates of Shurtleff College, subject to
its rules and regulations, and, so far as testimony shows, taking no
part in town affairs, and paying no taxess, and not assessed on their
personal property for taxation to aid in defraying expenses of the
town. Some of them paid a road tax on labor, the street commissioners
demanding this on a residence of ten days.
``As a general fact, however, undergraduates of colleges are no more
identified with residents of the town in which they are pursuing their
studies than the merest stranger, and should all the seats of learning
in the United States be polled, not more than one student in twenty
would be found to possess the proper qualifications of a resident of
the town.''
In Vanderpoel v. Jones (53 Iowa, 246), the court held that ``one who
becomes a resident of the county for the purpose of attending college,
and who has formed no intention of remaining after the completion of
his college course, is not entitled to vote in said county.''
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In Fry's election case (71 Pa. St., 302), known as the ``Allentown
case'' (see Brightly's Leading Cases on Election, pp. 468-479), it is
held that ``students at a college living at the place in which it is
located, whether supported by themselves and emancipated from their
fathers' families, with no intention to return to their homes, or
supported by their parents, who visit their home in vacation, and may
or may not return after graduating, have not such residence as will
entitle them to vote in the district where the college is.''
Yet these students were assessed and paid taxes at the college town,
and had lived from one to three years there, all claiming it to be
their home. It is also held in the same case that ``very few, if any,
students, while residing at the college, acquire a new home or change
of domicile, and they are, therefore, not entitled to vote. In the
early history of our colleges, while the true meaning of the State
constitution was fresh in the minds of the framers of that instrument,
it was never pretended that the student acquired a residence at the
college so as to become a qualified elector, to be liable to taxation,
and to the performance of municipal duties. In those days, when the
purity and freedom of elections prevailed, the parental home, or the
locality from whence the student came, was universally accepted as the
district in which he was entitled to vote.''
It was also held that, in the opinion of the court, a ``careful
examination of the testimony leads to the conclusion that none of these
students, whose votes are contested, were qualified electors at the
last October election.''
The court in this case draws the true distinction between students
and laborers, and uses this language:
``Students being here for the sole purpose of being educated, and not
coming animo manendi, but intending to go elsewhere as soon as
graduation takes place, do not fall within the same category with
unmarried men who seek employment from point to point, as opportunity
offers. The student is in a preparatory condition, in a state of
tutelage, and nonproductive, not yet able or willing to enter the world
to engage in business or in the productive pursuits of life nor fully
prepared to assume civil and political rights and duties. The unmarried
man who has severed the parental relation becomes a laborer, producing
for himself, and thus adds to the productive wealth of the community in
which he resides, being willing not only to enjoy the political
privileges, but also to assume and to discharge political and civil
duties.''
In Massachusetts there have been four cases, but none recently. The
only one in any degree favorable to students is the very early case of
Putnam v. Johnson (10 Mass., 488), where counsel for plaintiff
especially based his claim upon the plea that his client was not an
ordinary college student. His language (pp. 493 and 494) is:
``This case has been compared to that of students at college, but it
more resembles the case of resident graduates or instructors, who have
always voted in the town where the college is situated in which they
reside.''
All the later decisions, however, refuse to go so far, and are
uniformly against the claim that undergraduate students are entitled to
vote. Another case is Granby v. Amherst (7 Mass., 1, A. D. 1810),
wherein Chief Justice Parsons says of a college student that he ``was
abroad merely for his education; during the vacations he was at home in
Belchertown, and on receiving his degree he continued his residence in
the same place. His absence was occasional and for a particular
purpose, and we are satisfied that within the intent of the statute
there was no change of his domicile. His home was at Belchertown; it
was his place of residence, although from home for the purpose of
instruction.''
Another is the case in 5 Metcalfe, 587, where the court say:
``But in such case [i.e., residing at a university town] his right to
vote at that place would depend upon all the circumstances connected
with such residence. If he has a father living; if he still remains a
member of his father's family; if he returns to pass his vacations; if
he is maintained and supported by his father; these are strong
circumstances repelling the presumption of a change of domicile. So, if
he have no father living; if he have a dwelling-house of his own, or
real estate of which he retains the occupation; if he have a mother or
other connections with whom he has before been accustomed to reside,
and to whose family he returns in vacation; if he describe himself of
such place and otherwise manifest his intent to continue the domicile
there, these are all circumstances tending to prove that his domicile
is not changed.''
The last Massachusetts case is in Cushing's Contested Election Cases
(p. 346), in which the legislative committee uses this language:
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``The requirements of the constitution and laws are not satisfied by
merely abiding or remaining within the Commonwealth and town where the
individual claims to vote. He must go there with the intent, bona fide,
to make it his home--to obtain a domicile. If his home is in another
State, or in another town in this State, and he is a sojourner for
temporary purposes merely, intending when those purposes are
accomplished, sooner or later, to leave the State or town and return
home, he is not liable to the duties nor entitled to the privileges of
a citizen of the town he sojourns in. This is a question of fact in
each case, and the party who avers that he has abandoned his domicile
of origin and taken up a new one is bound to prove it.''
The latest and best known case in Congress, where this question has
arisen, is Cessna v. Meyers (McCrary on Elections, p. 496), in the
Forty-second Congress, which follows the Massachusetts decisions, and
which is strengthened and extended in its scope by the foregoing Ohio,
Illinois, and Iowa cases. There were also two very early Congressional
cases which are clearly distinguishable from these later ones, in which
it was held that certain students, under peculiar circumstances, were
legal voters. One was the case of Letcher v. Moore (1 Bartlett, 750, A.
D. 1833), in which especial stress is laid upon the fact that a student
who had voted was a practical printer, working at his trade in the
college town, and belonged to the local militia. The other case was
Farlee v. Runk (1 Bartlett, 87, A. D. 1846), where the students paid
taxes at the college town and in many other ways assumed the
liabilities of citizens. We cite these cases to show the advance
continuously made toward the rule that but few college students acquire
a domicile and a right to vote in the college precinct. The estimate of
lawful voters amongst them, as made by the court in Dale v. Irwin,
above quoted--that of one in twenty--seems to us to be a very close
approximation to accuracy. In the present case, however, we adopt no
general rule, but predicate our conclusions upon the testimony. In
weighing such testimony we have regarded as especially applicable in
such cases the doctrine of Keith v. Stetler (25 Kans., 100), where it
is held that ``A man's acts and conduct are more to be considered in
determining the question of a change of residence than any mere
declaration of intent.''
We have carefully examined the testimony in the case now before us,
and, in our judgment, but 7 of the 96 students who voted were lawfully
entitled to do so. They are S.I. Lindsay, J.G. Stewart, I.M. Burgan,
S.J. Stahl, G.W. Branch, Tony Perry, J.A. Greene, J. Tillman, G.M.
Tillman, D. Turner, F.D. Scott, E.A. Palmer, and G.W. Fairchild (who
voted for contestee), and J.W. Scott (who voted for contestant). We
have some doubts as to several of these, but give them the benefit of
the doubt.
The following is a list of 71 students whom we find to have voted
illegally for contestee: W. C. Houser, E. C. Hoover, W. A. Galloway, A.
L. Glendenning, C. S. Spangler, J. U. Moore, K. C. Kunkle, Evan
Griffiths, J. W. Smallwood, John Wardlow, E. G. Zimmer, G. F. Osler, W.
R. Butcher, J. A. Beery, G. M. Brown, W. E. Bowman, P. E. Cromer, L. G.
Cromer, J. B. Fairchild, J. L. Plummer, H. W. Gibson, Richard Foote, D.
J. McMullen, E. S. Keeney, J. W. Freas, Simon Barr, S. N. Bousman, H.
E. Miller, S. H. Darbyshire, H. C. Gibbs, W. S. Whitacre, U. H.
Williams, M. J. Sanford, John Zell, W. F. Hague, L. Huston, J. H.
Lansinger, W. T. Anderson, G. W. Prioleau, N. A. Banks, J. R. Scott, J.
J. Bass, B. F. Morris, G. W. Nicholson, W. T. Young, W. H. Coston, C.
N. Crosby, J. A. Kirke, Z. Roberts, S. C. Stewart, C. N. Williams, L.
M. Beckett, P. M. Alexander, E. L. Bell, Aaron Brown, G. W. Hamilton,
G. S. McElroy, C. A. Buck, W. I. Brooks, W. C. Lawther, W. J. Graham,
W. J. Golden, J. S. Colvin, J. McNaugher, J. C. Gibney, H. T. Jackson,
A. Gordon, L. W. Williamson, W. G. Martin, J. H. Bailey, and T. O.
Baker.
Those students who voted illegally for contestant, 11 in number, are
G. A. Crisman, A. E. McLaughlin, T. M. Smith, T. M. Lombard, J. A.
Wiley, William Weber, G. E. Krout, A. M. White, S. E. Kirkpatrick, M.
Benn, and J. R. Flowers.
Want of adequate time and space prevents comment on, or quoting in
detail from, the depositions of the foregoing students. We call
especial attention to what may be termed the general testimony bearing
on each of the four colleges in the district. A careful perusal of that
will greatly aid a just and intelligent judgment of the case. The
general testimony bearing on the National Normal University will be
found in the record, part 1, pages 493 to 495, 583, 584, 641, and 642.
Reading this, in connection with the individual depositions of the
students, it will be found that the university has an enormous annual
attendance, and scarcely one student in a thousand settles or remains
in the village where it is located; that these students, unlike the
ordinary collegians, do not attend for a course of four years, but for
merely for one or more sessions of eight or ten weeks each; that many
are school-teachers, living elsewhere, who come just long enough to
attain proficiency in such branches of study as they may be teaching,
and are soon off to their homes and employment; that, in a word, they
are
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there for a transitory and temporary purpose only. At this school many
are young, the average age of those voting being only 23 years,
although a few are quite matured. All have matriculated from distant
places. None showed any act to indicate an intention to make Lebanon
their home. They describe themselves from other places; went elsewhere
in vacation, etc. None worked the roads nor paid taxes. None took such
interest in public affairs as citizens ordinarily do. Out of the 35 who
voted there illegally for contestee 10 had left the school during the
short interval which elapsed between the election and the beginning of
this contest. It is also shown that many of the Republican students at
this university had been preparing themselves for examination as
witnesses in this case by a systematic course of study, and had
requested the faculty to especially instruct them upon their rights as
witnesses in a contested election case, and that on the Saturday prior
to the October election in 1882 they held a meeting in University Hall,
at which outside parties addressed them and advised them to vote at the
approaching election, regardless of the fact that they had not paid
taxes, worked the roads, etc.
The general testimony relating to Wilberforce University would be
found in the record, part 1, pages 280 to 283, 292 to 300, 357 to 359,
443, and 444. This institution is situated in the country, away from
any village or city. It is attended only by colored people, the male
students preparing to be ministers and teachers. They come mainly from
distant States, only 6 out of the 20 illegal voters at that school
having matriculated from the State of Ohio. There is but little
difference between them and the normal students above referred to,
except that their average age is higher, being 25 years, owing to the
fact that their race, previous condition, and lack of early advantages
had retarded their education. They never paid any taxes nor discharged
any other civil obligations; they never worked the roads (with very
trifling exceptions) until after the election in controversy; they have
no means of getting employment in the country at Wilberforce, either in
teaching, preaching, or other professional occupation; they are very
transitory, coming and going as their exceedingly limited means admit.
Five of those voting illegally had left the school before this contest
began, two of them leaving the State. They were not called together by
the faculty and other political leaders and instructed how to testify,
but just one day before their examination Mr. A. G. Wilson, attorney
for contestee, and chairman of the Republican county committee,
published an article of his own writing in a Republican newspaper upon
the topic ``Rights of students--where should they vote?'' He procured
500 copies of the paper, and every colored student in Greene County
admitted receiving or seeing marked copies of the newspaper containing
this article. Attention was also called to the article by a professor
at public prayers in the presence of these witnesses.
The students at the Xenia Theological Seminary also read the
foregoing marked copy of this newspaper, and, although studying
theology, do not in any respect differ from the Wilberforce and Normal
students, except that they generally remain a stated term of two or
three years. They matriculated from distant places--see the following
extract from the matriculation book, which is just as they signed it,
and is, substantially, similar to the matriculation books of the other.
colleges:
------------------------------------------------------------------------
Post-offices
Names. addresses. Presbytery.
------------------------------------------------------------------------
W. I. Brooks.................. Northwood, Ohio.. Sidney.
C. A. Buck.................... College Corner, First Ohio.
Ohio.
W. J. Golden.................. Scroggsfield, Steubenville.
Ohio.
J. C. Gibney.................. Odell Guernsey Muskingum.
County, Ohio.
W. J. Graham.................. Scroggsfield, Steubenville.
Ohio.
R. T. Jackson................. New Concord, Ohio Muskingum.
Albert Gordon................. Hanover, Ind..... Indiana.
W. C. Lawther................. Wattsville, Ohio. Steubenville.
John McNaugher................ Allegheny, Pa.... Allegheny.
L. W. Williamson.............. Xenia, Ohio...... Xenia.
Jesse S. Colvin............... Chicago, Ill..... Chicago.
W. G. Martin.................. Irondale, Steubenville.
Jefferson
County, Ohio.
------------------------------------------------------------------------
They were all credited to distant presbyteries, where they retained
their membership and church connection, and by which many of them were
partially supported. They neither paid taxes nor worked the roads. Some
of them took so little interest in local and municipal affairs that
they could not tell which ward of Xenia they had voted in.
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The majority say that in their opinion the student vote is decisive
of the case:
To overcome contestee's majority contestant claims that 80 persons
who were students unlawfully voted for contestee, and that 11 persons
who were students unlawfully voted for contestant, making a net gain of
69 votes for contestant on the so-called student vote. The wholesale
setting aside of this large number of votes, without reference to the
merits of each individual case, is not justified by any known authority
or precedent, and is inadmissible upon any view of the case. The
desperate character of this case is demonstrated by this extravagant
claim.
There have been four cases before Congress in which the legality of
votes cast by persons who were at the time following the occupation of
students were assailed, and in neither case were these votes held to be
illegal. They are the cases of Letcher v. Moore, from Kentucky; Farlee
v. Runk, from New Jersey; Koonts v. Coffroth, from Pennsylvania; Cessna
v. Myers, from Pennsylvania.
McCrary, in his work on Contested Elections, reviewing the leading
authorities, uses the following language, paragraph 41:
``It will be found from an examination of these authorities, and from
a full consideration of the subject, that the question whether or not a
student at college is a bona fide resident of the place where the
college is located, must in each case depend upon the facts. He may be
a resident and he may not be. Whether he is or not depends upon the
answer which may be given to a variety of questions, such as the
following: Is he of age? Is he fully emancipated from his parents'
control? Does he regard the place where the college is situated as his
home, or has he a home elsewhere, to which he expects to go and at
which he expects to reside?''
Putnam v. Johnson (10 Mass., 488-502); Vanderpool v. O'Hanlon (53
Iowa, 246); Fry's Election Case (71 Pa. State, 302); Dale v. Irwin (78
Ill., 170); opinion of the judges (5 Metcalf, 587); Cushing's Election
Cases (437), all support the view that each case must be determined on
its facts.
The Ohio statute is as follows:
``Sec. 2946. All judges of election, in determining the residence of
a person offering to vote, shall be governed by the following rules, so
far as the same may be applicable:
``(1) That place shall be considered the residence of a person in
which his habitation is fixed, and to which, whenever he is absent, he
has the intention of returning.
``(2) A person shall not be considered to have lost his residence who
leaves his home and goes into another State or county of this State,
for temporary purposes merely, with the intention of returning.
``(3) A person shall not be considered to have gained a residence in
any county of this State, into which he comes for temporary purposes
merely, without the intention of making such county his home.''
In the statute the words ``residence'' and ``home'' are used as
convertible terms; both are defined in the statute itself as ``that
place in which his habitation is fixed.'' Habitation is ``a place of
abode;'' fixed means ``established.''
``Rule 1. The residence or home, then, of a person is `where his
place of abode is established,' not forever, but for the time being,
and to which, whenever he is absent, he has the intention of
returning.'
``Rule 2. A residence is lost by leaving the home or ``place of
abode'' and going into another State or county in this State, even for
a temporary purpose, without the intention of returning.
``Rule 3. A person may gain a residence in any county in this State
into which he comes for temporary purposes merely, if he does so with
`the intention of making such county his home,' his place of abode, not
forever, but for the time being.'' (McCrary, par. 39; Sturgeon v.
Korte, 34 Ohio St., 525-537; Miller v. Thompson, 118; and Pigotte
Cases, 463, 2 Cong. Election Cases.)
The question of intention is of the highest importance, and is held
by all authorities to be decisive whenever there is doubt as to which
of two places is the residence of the voter.
In his testimony the contestant has set forth the portions of the
student's register or matriculation book of each of the educational
institutions, showing the names, address, etc., of each student as
recorded on first entering college. With exception of a few names he
repeats these lists in his brief, for the purpose of proving such
students to be nonresidents. This whole question of matriculation
books, as evidence in regard to residence of students, was very fully
discussed and effectually settled in the contest of Letcher v. Moore,
of Kentucky, in the Twenty-third Congress (1 Bartlett, 750). The
contest involved, among other things, the right of students of
Danville, then a part of Mercer County, to vote there. The Committee on
Elections divided, the majority reporting adversely to the right and
the minority favorably. The college register at Danville showed the
names of students entered after this
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manner: (1) David McKee, Harrison County, Kentucky. (2) Robert McKeown,
Jefferson County, Kentucky.
The minority committee, in its report, says:
``Under the last resolution, the names of D. D. McKee (and other
students mentioned), were stricken from the poll book by a majority of
the committee. We think the committee erred in this decision. In order
that our opinions may be the better understood, we will give the
substance of the testimony laid before the committee in regard to each
of the persons above named.''
The students and the officers all say that the address does not
indicate residence, but simply where the student came from.
After recounting the testimony, which in its general features does
not differ materially from that in the present case, the committee goes
on to say:
``The persons whose names we have mentioned as being stricken from
the poll books were students at Centre College. Their votes were
received by the officers of the election; this would be prima facie
evidence of their being legal votes. He who denies their right must
prove satisfactorily that they did not possess it. The register proves
nothing but the place from which they originally came and the time of
their entrance into college. It does not prove, nor purport to prove,
even the time they came into the State or county. They performed all
the duties of citizens, and could not be denied the rights of citizens.
By the constitution of Kentucky there are three requisites to entitle a
man to vote: He must be a free male citizen; he must have attained the
age of 21, and he must have resided in the State two years and in the
county one year next preceding the election. This age and residence
give a position and vested constitutional right; of this right he can
not be deprived without a palpable violation of the constitution. * * *
His employment forms no part of his qualifications, nor is it material
how long he intends to reside in the county after the election. The
right is founded in prior residence, and his intended future residence
neither gives nor tends to defeat it. Those persons were all 21 years
of age. They had been in the State or county the length of time
prescribed by the constitution, and actually resided in the county at
the time of election. This is all the constitution requires, and it is
not for us to require more. We think the majority of the committee
erred in rejecting their votes.''
The House sustained the minority report, and refused to seat the
contestant.
The case of Farlee v. Runk, in the Twenty-ninth Congress (1 Bartlett,
87), is directly in point upon this question. The whole contest was
based upon the denial of the right of students at Princeton, N.J., to
vote in the college town. The constitutional qualification for voting
in New Jersey was almost identical with the Ohio statute. The voter
must be a male citizen of the United States, 21 years of age, a
resident of the State for one year and of the county five months next
preceding the election.
Mr. Farlee, in his memorial, represented that Mr. Runk's nominal and
apparent majority of the votes of said district was obtained by his
receiving the votes of thirty-six individuals specified in his memorial
who were, at the time of his election, students of the Theological
Seminary at Princeton, N.J., and of five who were students in the
College of New Jersey, at Princeton, and all in the Third Congressional
district, which were unlawful votes, and ought to be rejected, because,
although the above-named students were living at Princeton for the time
being merely for the purpose of obtaining their education, they were
not residents of the district, and could not legally vote at said
election.
The committee reported in favor of the legality of the votes of these
students, and stated the reasons on which they based their report as
follows:
``But it is contended by Mr. Farlee, the contestant, that they were
not residents, as contemplated by the Constitution, but students,
merely living at Princeton for the purpose of obtaining an education.
The depositions of nineteen persons, students of the college and
theological seminary, appended to this report and marked `D,' taken at
the instance of Mr. Farlee, the contestant, have been examined, and
your committee are of the opinion that they were legal voters. They
swear that they were more than 21 years of age; nearly every one swears
that he came to Princeton without any intention of returning to the
place he came from, and with the intention of remaining there until he
accomplished the purpose for which he came either to the college or the
theological seminary, and then of going wherever he could find
occupation, if he did not find it in Princeton, or wherever he felt it
his duty to go.
``It will be observed on reading the depositions that these
individuals had all been in Princeton more than one year, and most of
them had been there several years before the election; and that
although they were in pursuit of an education, either in the college or
theological seminary, they had, many of them, been of age and enjoying
the privileges of freemen many years.''
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Here follows, in a report, a synopsis of the depositions of the
students, the main features of which disclose a state of facts very
similar to the student branch of the present contest.
The House adopted the report of the committee and refused to seat the
contestant.
In the case of Putnam v. Johnson (10 Mass., 488-502) the court
decided the vote to be legal, and in so doing used the following
language (p. 500):
``A residence at the college or other seminary for the purpose of
instruction would not confer a right to vote in the town where such an
institution exists, if the student had not severed himself from his
father's control, but resorted to his house as a home and continued
under his direction and management. But such residence will give a
right to vote to a citizen not under pupilage, notwithstanding it may
not be his expectation to remain there forever.''
In Fry's election case (71 Pa. Stat., 302), relied on by contestant,
it is conclusively admitted as a matter of fact that these students
always had a fixed intention to leave the college town. In the very
language of the court, they ``may or may not return'' to their fathers'
homes, excluding the idea of abandonment of the old homes and the
adoption of new ones.
Contestant quotes copiously from the Allentown election case
(Brightly's Digest, 468-479), and says: ``It is probably the most
complete, exhaustive, and decisive case reported,'' oblivious of the
fact that it is the same case as Fry's election case (71 Pa. Stat.),
described by him on the same page (18) of his brief, as ``another and
very strong case.'' His quotation shows that the students in that case
``are under the pupilage of their parents, receiving all their support
from them, and in no sense whatever are they emancipated from the
parental domicile.''
In Dale v. Irwin (78 Ill., 170) the court says:
``The permanent abode prescribed by the Revised Statutes of 1874, as
the criterion of residence required to constitute a legal voter does
not mean an abode which the party does not intend to abandon at any
future time. In the sense of the statute, a permanent abode means
nothing more than a domicile, a home which the party is at liberty to
leave as interest or whim may dictate, but without any present
intention to change it.
``The undergraduates of a college, who are free from parental
control, and regard the place where the college is situated as their
homes, having no other to which to return in case of sickness or
domestic affliction, are as much entitled to vote as any other resident
of the town pursuing his usual avocation. It is pro hac vice the home
of such students, the permanent abode in the sense of the statute.''
After a full consideration of the merits of each particular vote in
question the court admitted a part of the student votes as legal and
rejected a part as illegal on the principle announced in the case that
the legality of each vote must be determined by the facts relating to
it alone.
In the case of Cessna v. Myers (McCrary on Elections, 496, Forty-
second Congress), involving student votes, the committee, speaking of
evidence, says:
``It is often a question of intention. If a person has actually
removed to another place with an intention of remaining there for an
indefinite time, and as a place of present domicile, it becomes his
place of domicile, notwithstanding he may have a floating intention to
go back at some future period. A fortiori would then be true if his
floating intention were to go elsewhere in future, and not to go back,
as in such case the abandonment of his former home would be complete.
``The fact that the citizen came into the place where he claimed a
residence for the sole purpose of pursuing his studies at a school or
college situate there, and has no design of remaining there after his
studies terminate, is not necessarily inconsistent with a legal
residence in such place. This is to be determined by all the
circumstances of each case.''
In the opinion of the judges (5 Metcalfe, 587) the following language
is used:
``But if, having a father and mother, they should remove to the town
where the college is situated, and he should remain a member of the
family of the parent, or if having no parent, or being separated from
his father's family, not being maintained or supported by him, or if he
has a family of his own and removes with them to such town, or by
purchase or lease takes up his permanent abode there, without intending
to return to his former domicile, if he depends on his own property,
income, or industry for his support; these are circumstances, more or
less conclusive, to show a changed domicile, and the acquisition of a
domicile in the town where the college is situated. We do not consider
this circumstance (i.e., `having means of support from some place
elsewhere') of much importance in determining the domicile. If, indeed,
a young man, over 21 years of age, is still supported by his father or
mother, it is a circumstance concurring with other proofs to show that
he is still a member of the family of such parent,
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and so may bear on the question of domicile. But if he is emancipated
from his father's family and independent in his means of support, it is
immaterial from what place his means of support are derived.''
In Cushing's Election Case (p. 437) the committee on the judiciary of
the legislature says that a right of a student, or of other persons, to
vote is a constitutional right qualified only by the constitutional
requirement of age and residence. ``He has the same right to employ
himself in obtaining a literary education as in learning or exercising
a trade, an art, a profession, or agricultural pursuits.''
The minority views, presented by Mr. S. H. Miller, of Pennsylvania,
took issue with the position of the majority:
It is claimed ``that a student must prove his domicile of origin to
have been abandoned.'' This is not the law.`` The vote having been
received by the election officers, the burden is on the other side to
show that they erred.'' (Cessna v. Myers, McCrary, p. 501; Letcher v.
Moore, Election Cases, p. 829; Botts v. Jones, Election Cases, p. 74;
Contested Election Cases, vol. 5, p. 79; Contested Election Cases, vol.
3, p. 407.)
It is claimed that the students in Xenia and Lebanon did not work the
roads nor pay poll tax. Neither did any other citizen, the care of the
streets in both of these corporations being provided for out of the
corporation funds. At Wilberforce the colored students worked the roads
with quite as much regularity as other people, as many as twelve
ministers offering to work, but being excused, under the impression of
the supervisor that they were exempt. But whatever the fact be, there
is no such prerequisite to voting in Ohio.
It is clear from the authorities cited that persons whose occupation
is that of student, teacher, or preacher have the name right to change
their residence as people pursuing other occupations and that their
place of residence must be determined by the same rules which are
prescribed by the legislature of Ohio for all the people of the State.
The case of Mickey v. Loomis, recently decided in the Ohio senate, is
much relied on to show the illegality of student votes in Ohio. The
agreed state of facts in that case is much less favorable to the
students than the facts in this case. They were not self-supporting, as
in this case. They came to college directly from their parents' homes
and had not been out in the world for years, as in this case. They were
not teachers, preachers, etc., and of the average age of 27 years, as
in this case, and yet even they were clearly legal voters. The
elections committee in that case consisted of five Democrats to two
Republicans. The vote against the students was five to two in the
committee, and in the senate it divided exactly on party lines. It can
hardly be accepted to overthrow four cases (and the only cases) in this
House in favor of the legality of such votes.
THE COLORED VOTERS OF WILBERFORCE; XENIA TOWNSHIP.
It is claimed that 28 students of Wilberforce voted for contestant.
The town of Wilberforce and Wilberforce College and Academic and
Theological School for colored people are situated in Xenia Township.
It is a settlement of colored people, and is surrounded by colored
settlements on every hand. In Greene County alone there are several
thousand colored inhabitants, while in Greene and in the adjoining
counties of Clarke and Clinton is one-fourth part of the entire colored
population of the State. The men who voted at Xenia Township who were
students at Wilberforce were but 28 in number of all the students in
that great university. They were men advanced in years, far beyond the
age of majority. Their average age when they voted was 29 years--
running all the way from 23 to 35 years. They had lived at Wilberforce,
respectively, from one to five years. They were all self-supporting,
and had been engaged in useful, productive occupations, such as
laboring, teaching, preaching, etc. At the time of the election,
October 10, 1882, twelve of these men were licensed preachers, with
settled charges at Wilberforce and at the neighboring colored
settlements. Most of their parents were dead. All of them had for years
been away from the early family hearthstone and from under the parental
roof. One of them, a type of them all in most of the facts which
distinguish him, was born a slave. He left his home in North Carolina
in 1869, without education and poor in purse. He labored on the
railroads in Tennessee and Kentucky; lived at Evansville and Terre
Haute; voting at both places, and in 1876 settled in the town of
Wilberforce, where he has ever since lived and where he has voted at
every election for five years prior to October 10, 1882, except at one
election, when he had charge of a church in another county in Ohio.
Eighteen of these voters had voted at previous elections in Xenia
Sec. 991
Township; five of them at eight previous elections at least; eight of
them at three or four previous elections; five of them at two previous
elections.
A brief statement of each case and the testimony supporting the same
will be found in Appendix H to minority report. The object of the law
is not to disfranchise, but to enfranchise. There was no place in the
world where these men could lawfully vote on October 10, 1982, except
at Xenia Township, where they did vote and where many of them had been
voting for years. Their abandonment of all former houses was complete
and their adoption of Xenia Township manifest.
THE THEOLOGICAL STUDENTS.
Of all the students at the theological seminary, Xenia, twelve only
voted for contestee. They, too, were men advanced in years far beyond
the age of majority, their average at the time of election being over
26 years. They had all completed their academic education, had been
attached to presbyteries, and had become in fact a part of the clergy
of their church. They were in nearly every instance poor men, who had
been compelled since their majority to become teachers or engage in
other industrial pursuits for their own sustenance and support. Of
those who were interrogated on that point two had voted there at five
previous elections; five had voted there at three previous elections;
one had voted there at one previous election. Their uncontradicted
testimony is that they had abandoned their former homes and had adopted
Xenia as their residence, without any present intention of removing
therefrom. They, like all preachers, were subject to go where the
exigencies of their profession might call them. It has always been held
in Ohio that a minister of the Gospel is entitled to vote where he has
resided for the statutory period, notwithstanding he may move the next
year to take another charge. Much stress is laid upon the fact that
these students signed a college register, giving their addresses and
the presbyteries to which they were credited. All the witnesses testify
that the address merely indicates where the student came from, and in
no sense indicates residence, and that the giving the name of the
presbytery is merely for the information of the officers of the
college, that they may know what body has jurisdiction over his
spiritual walk and conduct. Rev. J. G. Corson, the secretary of the
board of managers, explains the whole matter. He says:
``The name of the presbytery under the care of which the student is
does not indicate anything in regard to his residence, as it is in a
great measure a matter of convenience, as, for example, a number of the
students coming from distant parts of the country put themselves under
the care of Xenia presbytery, in whose bounds the seminary is located,
because more convenient for being examined by and delivering discourses
before such presbytery.''
Much stress is also laid on the fact that several of these men had
completed their course at the time they were examined as witnesses.
Some of them had appointments to be examined and to deliver their trial
discourses before their presbyteries. The law required that they should
have five days' previous notice of their examination. They simply
asked, in order to avoid delay, that they might be examined at once and
go to their presbyteries for that purpose alone. Where they would
thereafter make their homes or whether they would ever abandon their
homes in Xenia were matters for the future, to be determined by the
exigencies of their lives, just as the place of residence is determined
in the case of every other voter.
A brief statement of the facts in each case will be found in Appendix
H to this report.
THE NORMAL UNIVERSITY.
Contestant claims that 36 students at the National Normal University
at Lebanon voted illegally for contestee. These men were mechanics and
farmers and teachers; principally the latter. Their ages are from 21 to
31 years. Most of them were advanced far beyond the age of majority;
all had been severed from their parental homes and had been out in the
world fighting their own battles for years.
At the time of the election the witnesses put the number of students
at from 450 to 1,300. The best informed persons say that there were
about 300 adult males there at that time. Out of these 300, 36 only
voted for contestee--about 1 in 10.
These students did not, as has been claimed, vote in a body, nor as a
class. Only such as were qualified by age, residence, and intention to
reside there presumed to vote, and this after careful discussion of the
requirements for voting. A large number of them had been voting for a
number of elections
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previous to October 10, 1882. Seven had voted at three previous
elections; 8 had voted at one or more previous elections.
The university is not a preparatory school for youth, but it is a
school for teachers. It is the headquarters of teachers in Ohio. Many
teachers make Lebanon their home because the university is there. From
there they go out to teach or follow other occupations as they have
opportunity.
Certain other questions as to the qualifications of voters were
disposed of:
(1) As to the votes of certain idiots, the majority say:
We find that three hopeless idiots, from the infirmary in Greene
County, voted for contestee. They are Berry Valentine, Samuel Scott,
and William Morris, and we deduct these votes from contestee's poll. He
attacks a number of persons as idiots, lunatics, and imbeciles and
claims that they voted for contestant. We find the mental condition of
A. M. Apple to be far above the average of voters. We find the
following persons to be of fair intellect, to wit: George Robb, Charles
Beebe, Warren Lytle, John Killeen, Harlan Duke, Aaron Cosad, William
Dill, and William Hawkins. We find the following to be persons of small
intelligence, but not idiots, to wit: Noah Potts, David Norris, and
Dennis Morris. We might add that there is no testimony to show how some
of them voted, nor any to show how the following persons voted, they
being very weak-minded, to wit: John H. Nichols, John Kitchel, John
Fleck, and Thomas Reiley. The case of Dennis Morris, a man over 80
years of age, merits special notice. He was not a weak-minded person in
his prime. His right to vote in his old age is preserved to him by the
supreme court of Ohio, which held, in the case of Sinks v. Reese (19
Ohio Statutes, 307), that ``the vote of a man otherwise qualified, who
is neither a lunatic nor an idiot, but whose faculties are simply
greatly enfeebled by age, ought not to be rejected.''
The minority say:
Idiots and insane persons are excluded from the elective franchise in
Ohio by the constitution. By the statute an imbecile is defined to be
an idiot, so that the disqualification extends to imbeciles. There are
6 persons of this class who voted for contestant. Two of them have been
adjudged by the courts of competent jurisdiction to be idiots; 4 to be
insane, and 2 to be imbeciles, and each and all of these 6 were under
guardianship, both of their persons and estates, and, by the law of
Ohio, their guardians are ex officio guardians of their minor children.
They are not competent to exercise any civil or political right.
Upon a careful examination of the testimony in these cases and of the
records of the courts, wherein 6 of them have been adjudged insane,
idiots, and imbeciles, it clearly appears that the following persons
come within the provisions of the constitution and are disqualified to
vote; that they voted for contestant; that their 6 votes ought to be
deducted from contestant's poll and that number added to contestee',
majority: Thomas Reiley, John Fleck, John Killeen, Noah Potts, William
Hawkins, Charles Beebe, Warren Lytle, John H. Nichols. A brief
statement of the facts in these cases, with testimony bearing on the
same, will be found in ``Appendix B'' to this report.
(2) As to the votes of certain paupers, the majority say:
Certain inmates of the Butler County Infirmary voted. They had a
right to do so, as there is no pretense that they voted through any
intimidation. There is no testimony to show how any of them voted. None
were called as witnesses. Their rights are guaranteed by the supreme
court of Ohio, which held, in Sturgeon v. Korte (34 Ohio Statutes,
525), that--
``(1) An inmate of a county infirmary who has adopted the township in
which the infirmary is situated as his place of residence, having no
family elsewhere, and who possesses the other qualifications required
by law, is entitled to vote in the township in which said infirmary is
situated.
``(2) Such inmate is not under such legal restraint as to
incapacitate him from adopting the township in which the infirmary is
situated as his place of residence.''
We can see no grounds for the claim that 17 votes should be deducted
from contestant on this account.
Sec. 991
The minority say:
Thirty-one inmates voted, Nos. 9, 13, 19, 20, 21, 22, 23, 24, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 48, 49, 50, 51, 52,
53, 54, 55, 56, 57, 70, 71, 93, 126, 215, in the poll book; they were,
with a few exceptions, taken to the polls in the infirmary wagon; all
but five were admitted from other townships than Fairfield, wherein the
infirmary is situated. One, George Leonard, came from Lemon Township,
October 4, 1882, only six days prior to the election. His vote was
illegal for that reason alone. The legal residence of a pauper is the
place from which he entered the almshouse. (McCrary on Elections, 42;
Paine v. Town of Durham, 29 Ill., 125; Freeport v. Supervisors, 41
Ill., 41.) The same rule is adhered to in Sturgeon v. Korte (34 Ohio,
525-537).
The court found, however, ``that while such inmates they severally
did adopt said Falls Township (where the infirmary was situated) as
their permanent residence, and by such act of adoption and selection
and not otherwise did change their residence.'' It was claimed that an
inmate was under such restraint as to be incapacitated ``from forming a
purpose or intent to change his residence.''
The court was in doubt even on this question, and said: ``While the
question is not free from doubt, we incline to think he is not''
[incapacitated].
Contestant did not attempt to show that either of these inmates from
other townships did even ``select or adopt'' Fairfield Township (where
the infirmary is situated) as their residence.
The law conclusively fixes their residence at the places from which
they were received into the infirmary. Here, then, are 26 illegal
votes.
(3) The minority, claiming that the votes of the paupers should be
deducted, propose that it be done on evidence as follows:
Mr. Ross, the Democratic superintendent, swears to giving them
tickets--20 Democratic and 3 Republican. Taking the view most favorable
to contestant, we will suppose that he gave 5 Democratic tickets to the
five inmates who lived in Fairfield Township; that would leave 15
Democratic and 3 Republican tickets voted by nonresident inmates,
leaving it in doubt as to how the eight other nonresident inmates
voted; charge the 15 Democratic ballots to contestant, and the 3
Republican ballots to contestee, and divide the eight remaining votes
between contestant and contestee according to the vote received by each
in the precinct, and we find contestant's net loss on the infirmary
vote to be 17 votes. Upon every principle of law these 17 votes must be
deducted from contestant's poll, and that number be added to
contestee's majority in the admitted case.
The majority in the debate \1\ vigorously combated the proposition
that the distribution of the tickets under the conditions stated was
evidence sufficient to determine how the persons voted.
(4) The majority report thus decides a question of domicile:
John Estel was attacked because he voted in a precinct where he lived
apart from his wife. The testimony is that he had been separated from
her for many years.
The rule of law, that a man whose wife has abandoned him can and does
acquire a domicile other than hers, is too well known to be elaborately
cited. In addition to this, nobody pretends to say that Estel voted for
contestant.
(5) Another question of domicile is thus disposed of by the majority:
Michael O'Gara and P. J. Cook were journeymen mechanics; they belong
to that class of laborers who are always recognized as having a home in
the precinct where they have lived the statutory time. As far back as
1833, in the case of Letcher v. Moore, the House decided to admit ``the
votes of journeymen mechanics, and all other laborers having no fixed
and settled residence, but remaining for the time where they could get
employment.''
(6) A question relating to voting out of the precinct was determined:
Newton Long and G. W. Turner were also attacked by contestee, and
their cases are peculiar. The townships of Madison, in Butler County,
and Stonelick, in Clermont County, are each divided into two
-----------------------------------------------------------------------
\1\ Record, pp. 5406, 5407.
Sec. 992
voting precincts. The law requires the three trustees of the township
to act as judges of the election, but provides for dividing them
between the precincts when there is more than one. The statute reads:
``In every township containing more than one election precinct each
trustee shall act as judge in the precinct in which he resides unless
they all reside in the same precinct, when two only can so act therein,
and the other trustee shall act as judge in any other precinct.''
In Stonelick Township, G. W. Turner, being a judge at the precinct at
which he did not live, went over into his own precinct and voted. In
Madison Township, however, Newton Long was obliged to sit all day as a
judge in the precinct in which he did not live, and voted there. We
think there is no provision authorizing him to vote outside of the
precinct in which he lived, and that this vote should be deducted from
contestant. It is clear, however, that Turner's vote was cast at the
right place.
992. The election case of Campbell v. Morey, continued.
As to what constitutes the determination of result on which the
serving of a notice of contest is predicated.
The admission to naturalization being the function of a judge, a
performance of this function by a clerk is void.
The exact size of the ballot is immaterial.
As to ballots in language other than the English.
The House deducted an excess of ballots proportionately, although the
State law did not justify bringing them into the count.
A ruling that the law prohibiting a distinguishing mark on a ballot
did not apply to pencilings; by the voter himself.
Ballots spelled wrong or lacking the initials were counted.
The writing of the name of a candidate for a State office beneath the
name of the candidate for Congress was held not to render uncertain the
intent of the voter.
The House corrected the ballot of a voter shown to have been deceived
into voting otherwise than he intended.
Certain other questions were discussed, as follows:
(a) As to notice of contest, the majority held:
Contestant served notice of contest on the 11th of January, 1883. The
law is that--
``Within thirty days after the result of the election in a district
has been determined by the proper authority the contestant must serve
the returned Member with notice of contest. * * * It is no doubt true
that for the purpose of fixing the time when the thirty days begins to
run there must be not only a decision but a promulgation of the
result.''
The decision and promulgation of the result were, in our opinion,
both made December 14, 1882, which is less than thirty days before
notice was served. Such is the date of the official record of that
decision. Contestee having disputed the date of the finding, signing,
and promulgating of the foregoing decision, contestant called witnesses
to sustain the accuracy of the record, but no witness was called to
impeach it. George K. Nash, then attorney-general, and now a judge in
Ohio, was a member of that canvassing board, and testified as follows:
``Upon the afternoon of the 14th the court adjourned until the 2d of
January, 1883, without passing upon the motion in the mandamus
proceeding. When the action of the court was made known to the board it
signed the abstract and certificate now on file in the office of the
secretary of state. This signing, as I have before indicated, took
place on the 14th of December, 1882.''
Alexis Cope, chief clerk to the secretary of state, was called, and
testified as follows:
``Q. Third. State who made out or prepared the abstract and finding
made by the State canvassing board of Ohio in December, 1882, of the
election held October 10, 1882, and when the same was so made out and
prepared.--A. I made out the abstract and findings and certificate
attached thereto under the direction of the board. The abstract, I
think, was completed on the 7th; the certificate
Sec. 992
of the findings, according to my recollection, in the form in which it
now appears, was not completed until the 14th, the day on which I
recollect it was signed.''
There is nothing whatever in law or fact to justify contestee's
allegation that notice of contest was not served within the required
time.
(b) Contestant denied the sufficiency of certain naturalization
papers on the ground that they were not issued by the judge of the
probate court, but by the deputy clerk thereof. The majority say:
The function of deciding whether an alien has proven his claim to be
admitted to citizenship must be exercised by the judge only, and if
exercised by any other officer of the court the judgment rendered is
void; but the judicial function extends no further. The execution of
the certificate, the swearing of witnesses, and even the examination of
witnesses, if in the presence of the judge who is hearing and deciding
the cause, may all be done by the clerk, and are merely ministerial
duties. The leading case is Re Cristern et al. (43 Superior Court, New
York, 523), in which it is held that when the judge delivers the
examination papers to the clerk the judicial function is completed, and
the subsequent acts, such as issuing and filing papers, are ministerial
only, the allowance is the judgment itself; and that no journal record
need be made nor entry in a book.
The minority agree as to the law, but disagree as to facts:
In Ohio the probate court only is provided with records for the
admission of aliens to citizenship. The probate judge is ex officio his
own clerk and is entitled to a deputy clerk. It is further admitted by
contestant in his brief that the admitting of an alien to citizenship
is a judicial function, which can only be performed by the judge, and
that papers granted on a hearing by the deputy clerk are void.
(c) As to the sufficiency of a certain ballot the majority rules:
In the Fifth Ward of Hamilton a written ballot, in the Spanish
language, of the uniform width of 2\7/8\ inches, was voted for
contestee. The law of Ohio is that a ballot shall be ``not more than
two and one-half nor less than two and three-eighths inches wide.'' The
exact size of a ballot has been held to be immaterial. The law is laid
down thus in McCrary on Elections (p. 347):
``The supreme court of California has very recently had occasion to
consider the force and effect of a statute regulating the size and form
of ballots, the kind of paper to be used, the kind of type to be used
in printing them, etc. The court held, and we think upon the soundest
reason, that as to those things over which the voter has control the
law is mandatory, and that as to such things as are not under his
control it should be held to be directory only.''
We consider this ballot to have been properly counted.
The minority say:
Contestant claims that there was a ballot in the Spanish language,
which was a little more than 2\1/5\ inches wide, was cast for contestee
in the Third Ward, and that it is illegal. We submit that this is a
substantial compliance with the law of Ohio, and as such the ballot is
legal. If it is not, then a large number of German ballots for
contestant in the same ward of unlawful width are in the record and
must be deducted from his poll.
(d) The majority rules against the contestant on a question of the
width of certain ballots:
Contestant claims that 49 ballots which were voted for contestee in
Sugar Creek precinct (and which are attached to the manuscript
testimony in this case) are unlawful under the laws of Ohio. They were
cut off close to the name of a candidate on said ticket, and no space
was left to scratch or alter the ticket, as provided in the following
section of the statute:
``Sec. 2948. All ballots shall be written on plain white paper, or
printed with black ink with a space of not less than one-fifth of an
inch between each name, * * * and it shall be unlawful for any person
to print, for distribution at the polls, or distribute to any elector,
or vote any ballot printed or written contrary to the provisions
hereof; but this section shall not be considered to prohibit the
erasure, correction, or insertion of any name, by pencil mark, or with
ink, upon the face of the printed ballot.''
The object of leaving a blank space of the fifth part of an inch was
to provide for changing the ballot,
Sec. 992
as named in the latter part of the section, and it is claimed that any
printed ballot without such space can not be lawfully voted or counted.
Such is the claim made by contestant in his brief, but as a mere legal
proposition only. In his oral argument he disclaimed any desire to have
these ballots deducted from contestee's poll. He puts this disclaimer
on the ground that, while in his judgment the ballots are unlawful, yet
he does not desire to disfranchise any voter on account of a
technicality over which the voter himself had no control, We agree with
him that, whatever may be the effect of this on other candidates on
said ballots, the question involved does not properly arise here.
(e) A question arose as to an excess of ballots, the majority saying:
The law of Ohio provides for tallying only as many ballots as there
are names on the poll books, leaving the residue, if any, to be
preserved but not counted. The Revised Statutes, section 2957, reads
thus:
``Sec. 2957. Any ballots in the box in excess of the number of names
on the poll books, together with the ballots strung as aforesaid, shall
be deposited in the box.''
The design is to preserve but not to string or tally the excessive
ballots. However, the judges did string and count them in several
precincts, as follows:
----------------------------------------------------------------------------------------------------------------
Precinct. Number.
----------------------------------------------------------------------------------------------------------------
Oxford, Butler County.............................................................................. 2
North Madison, Butler County....................................................................... 1
Fourth Ward, Xenia, Greene County.................................................................. 4
Fifth Ward, Xenia, Greene County................................................................... 1
Franklin Warren County............................................................................. 3
------------
Total............................................................................................ 11
----------------------------------------------------------------------------------------------------------------
Desiring to dispose of this excess equitably, the following table is
prepared in conformity to the rule laid down in the People against
Cicott (16 Mich., 283), where the court held that ``the adoption of the
principle of allotment is the most sensible and practical measure which
could be devised,'' and in the syllabus they lay down the rule of
allotment as follows:
``When ballots are found in any ward or township in excess of the
names on the poll book, and the inspectors fail to draw them out, as
required by section 62, Comp. L, they should, on the trial of the
cause, be so apportioned that each candidate shall have deducted a
share of them, proportioned according to the whole number of votes in
his favor, the probability being that the legal and illegal votes have
been cast ratably for the several candidates.''
The majority therefore found a net loss of 3 votes for contestee.
The minority contend that the Michigan authority was predicated on an
entirely different statute. In Michigan it was the duty of the election
officers before proceeding to canvass the votes, if the number of
ballots exceeded the number of names on the poll lists, to draw out and
destroy unopened a number of ballots equal to the excess. But if the
election officers failed to destroy, such excessive ballots, and
counted and returned them, their loss on a contest must be determined
by allotment, because the ballots which would have been drawn out and
destroyed could not be identified. There was no such difficulty about
the Ohio law. The ballots last found in the box in excess of the names
on the poll lists were by law deemed fraudulent, and they could always
be identified whether they were counted and strung or not.
(f) As to certain marked ballots: The law of Ohio provided that
ballots should be ``without any mark or device by which one ticket may
be distinguished from another, except the words at the head of each.''
The majority say:
The object of this statute was to guard against frauds upon the
voter.
Sec. 993
And therefore the majority hold that ballots pencil marked by the
voters themselves, who voted them, after being printed and distributed
according to statutory requirement, did not fall within the
requirements of the statute.
The minority contended that the object of this statute was to
preserve the secrecy of the ballot, and that the ballots in question
should be rejected because it was shown that the voters marked them to
let their employers or party friends know how they voted.
(g) One ballot was found with sitting Member's name written ``W. R.
Moorey'' and another simply ``Morey.'' Also, there were other ballots
where the candidates' names were spelled wrong. All these were counted.
On several ballots a name similar to the name of a candidate for
sheriff was written beneath the name of the candidate for
Representative to Congress. The majority say:
We think these ballots ought not to be disturbed for the reason that
William McLain was a candidate for sheriff at said election, and the
voters, when writing the names on said ballots, merely erred in putting
some in the wrong place thereon. There is no doubt as to the intention
of the voters to be gathered by inspection of the ballots. We follow
the rule laid down by contestee himself in these words:
``The intention of the voter ought to prevail whenever it can be
ascertained by an inspection of the ballot, and if the ballot is
ambiguous the intention of the voter may be shown.
(h) As to a deceived voter the majority hold:
Robert Wilson voted for contestee in Ross precinct under the
supposition that he was voting for contestant, having been deceived by
a Republican who gave him the ballot. His vote should be deducted from
the poll of contestee and added to that of contestant.
In accordance with their conclusions of law, and also certain
conclusions as to questions of fact, the majority of the committee
found for contestant a majority of 44 votes, and reported resolutions
declaring him entitled to the seat.
The report was debated at length on June 19 and 20,\1\ and on the
latter day the proposition of the minority, confirming the title of
sitting Member was disagreed to, yeas 62, nays 139.
Then the resolutions reported by the majority were agreed to without
division.
Mr. Campbell then appeared and took the oath.
993. The Virginia election case of Massey v. Wise, in the Forty-
eighth Congress.
Where a capitation tax is a prerequisite to the right to vote, the
collection of such tax by unauthorized agents should not invalidate the
vote.
A Member who was appointed to assist a United States attorney in
certain cases was held not to be disqualified as a Member of the House.
Discussion as to what constitutes ``a person holding office under the
United States,'' within the meaning of the Constitution.
On June 30, 1884,\2\ Mr. Mortimer F. Elliott, of Pennsylvania, from
the Committee on Elections, submitted the report of the majority of the
committee in the Virginia case of Massey v. Wise.
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\1\ Record, pp. 5371, 5404-5426; Journal, pp. 1486, 1497, 1499.
\2\ First session Forty-eighth Congress, House Report No. 2024;
Mobley, p. 365.
Sec. 993
The sitting Member had been returned by a majority of 5,808 votes;
but contestant claimed that sitting Member received many illegal votes,
and also that he was disqualified.
(1) As to the illegal votes:
The law of Virginia provided for the payment of a capitation tax of
$1 prior to the day of election as a prerequisite to the right of the
citizen otherwise qualified to vote. Many thousands of citizens failed
to pay the capitation tax to the officers first intrusted with the
collection of the same.
A short time prior to the election of 1882 the auditor of public
accounts appointed special collectors, who issued capitation-tax
receipts to the number of 15,000 or 16,000.
The majority report thus concludes as to this branch of the question:
It is impossible for the committee to state who or how many persons
voted on the tax receipts, as the evidence utterly fails to show these
facts. We are satisfied, however, that several thousand votes were cast
upon these receipts, and probably a greater number than contestee's
returned majority.
We are of opinion that the votes cast on receipts issued by the tax
collectors appointed by the auditor of public accounts, which were paid
for by the voters or other persons for them prior to the day of
election, were legal votes, and were properly received and counted by
the election officers.
It may be doubted whether the auditor of public accounts had
authority to appoint these collectors under section 29 of the revenue
laws of Virginia. It was his duty, however, to supervise the collection
of the delinquent personal and capitation taxes certified to him by the
respective county clerks, and under the law to place them in the hands
of one or more sheriffs, sergeants, constables, or collectors for such
purpose; and if, as it is contended by the contestant, he was not
authorized to select private persons as collectors, still we think such
persons so appointed to receive the delinquent taxes were acting under
color of office, and the taxpayers were not bound, at the peril of
losing their votes, to know whether the auditor had exceeded his powers
in appointing them. The purpose of the law was to compel the payment of
the tax, and that was accomplished and the money reached the treasury
through these collectors, the accredited agents of the auditor, and to
hold that the citizens who endeavored to qualify themselves to vote by
paying the taxes assessed against them to the persons who were held out
to them as proper and lawful collectors by the head of the revenue
department of the State would be establishing a rule manifestly unjust.
The minority views, presented by Mr. Henry G. Turner, of Georgia, say
on this point:
We do not believe that the section of the State statute (sec. 29)
under which these appointments were made (and cited in the report of
the majority) created such officers or authorized their appointment. If
collectors of arrears of taxes had been appointed under section 34 of
the same statute, with the approval of the governor, there would have
been good reason to think that the auditor could have placed the lists
of delinquent capitation taxes in their hands for collection.
But we concede that the tax system of Virginia, taken as a whole, is
somewhat obscure, and we will not under the circumstances reverse the
decision of that department of the State government which is charged
with its administration. The practice of making these special
appointments seems to have been inaugurated by the contestant while
auditor of public accounts of the State; and while we do not think that
the principle of estoppel applies, we admit that this circumstance
would greatly embarrass a decision on this point in favor of
contestant.
There can be no doubt that many capitation tax receipts were issued
in blank, that many were issued on the day of election, and that many
were issued in gross and then distributed. And it is claimed, with much
force, that any payment of taxes for delinquent voters without their
authority previously given, especially when made by political agencies,
approximates bribery. But we can not say that the evidence is clear
that a sufficient number of votes, illegal for any cause, were cast for
the sitting Member to justify the rejection of his majority. We
therefore forbear to pursue these painful details.
Sec. 993
(2) As to alleged disqualification, the majority report says:
It is claimed by the counsel for the contestant that if the contestee
was duly elected that he has since disqualified himself from holding
the office of Representative in Congress.
Article I, section 6, last clause, Constitution of the United States,
is as follows:
``And no person holding an office under the United States shall be a
Member of either House during his continuance in office.''
It is claimed by contestant that the contestee, after his term of
office commenced, we appointed by the Attorney-General to an office
under the United States, which he continued to hold until after he was
sworn as a Member of the House.
There is nothing in the record to show the facts alleged, and all the
committee had before them was the admissions made by the contestee
during the argument of the case. He stated that on the 5th day of
March, 1883, he was employed by the Hon. Benjamin Harris Brewster,
Attorney-General of the United States, to assist the United States
district attorney of Virginia in the trial of certain enumerated cases
then pending in the United States district court of Virginia; that the
cases had not all been disposed of at the time this case was argued
before the committee, and that he expected to assist in the trial of
the case then undisposed of when they should come on to be heard. The
contestee, by his agreement with the Attorney-General, was to receive
for his services as special counsel in said cases not less than $500
nor more than $1,000, as the Attorney-General should afterwards
determine.
Under these facts, admitted by the contestee, was the contestee
appointed to an office under the United States, and did he hold such
office at the time he took his seat as a Member of this House?
The contestee was employed by the Attorney-General under section 363
of the Revised Statutes, which is as follows:
``The Attorney-General shall, whenever in his opinion the public
interest requires it, employ and retain in the name of the United
States such attorneys and counselors at law as he may think necessary
to assist the district attorneys in the discharge of their duties, and
shall stipulate with such assistant attorney and counselor the amounts
of compensation, and shall have supervision of their conduct and
proceedings.''
What authority is given the Attorney-General by the section quoted?
We think the section so plain that it construes itself. He is
authorized, ``Whenever in his opinion the public interests require it,
to employ and retain,'' attorneys and counselors at law on behalf of
the United States to assist the regular law officers of the Government
in the trial of particular cases. The duties of an attorney so employed
depend upon the contract made between the Attorney-General and himself,
and are not defined by law. He is retained to try a particular cause,
and when that service is performed his contract is at an end.
He has no right to perform the general duties of a district attorney,
but is confined to such services as the Attorney-General has stipulated
for in the contract of hiring. If it had been the purpose of Congress
to authorize the Attorney-General to appoint the attorney to an office
under the United States, would the words ``retain'' and ``employ'' I
have been used? Would not the word ``appoint'' have been used instead?
If an attorney employed by the Attorney-General to assist the district
attorney in the trial of a single case is an officer of the Government,
what is his official name? Is he to be known during the trial of that
cause as assistant district attorney and as ex-assistant as soon as the
verdict is rendered? Does the office as well as the officer die with
the cause the attorney was retained and employed to try? Must it not be
a singular office when the compensation to be received by the appointee
depends upon a bargain to be made between the Attorney-General and the
officer?
The report refers to the Pennsylvania case of Bache v. Bums (17 S.
and Rawle, 234) and to the decisions of the United States courts in the
cases of United States v. Hartwell (6 Wallace, 385) and United States
v. Germaine (99 U. S. Reports, 508).
The last-quoted case was that wherein a United States pension
examining surgeon, paid by fees, was held not to be an officer of the
United States, because ``the duties are not continuing and permanent,
and they are occasional and intermittent.''
Sec. 994
Therefore the majority concluded that sitting Member was not
disqualified, and recommended a resolution confirming his title to the
seat.
The minority views took issue on this point:
But we feel it to be our duty to inform the House that the sitting
Member holds another position which, in our opinion, forfeits his right
to a seat. The last clause of the sixth section of the first article of
the Constitution is as follows:
``And no person holding any office under the United States shall be a
member of either House during his continuance in office.''
The precise position of the sitting Member is defined in the two
sections of the Revised Statutes of the United States following:
``Sec. 363. The Attorney-General shall, whenever in his opinion the
public interest requires it, employ and retain in the name of the
United States such attorneys and counselors at law as he may think
necessary to assist the district attorneys in the discharge of their
duties, and shall stipulate with such assistant attorney and counselor
the amount of compensation, and shall have supervision of their conduct
and proceedings.
``Sec. 366. Every attorney or counselor who is specially retained
under the authority of the Department of Justice to assist in the trial
of any cause in which the Government is interested shall receive a
commission from the head of such Department as a special assistant to
the Attorney-General, or to some one of the district attorneys, as the
nature of the appointment may require, and shall take the oath required
by law to be taken by the district attorneys, and shall be subject to
all the liabilities imposed upon them by law.''
Some strew is laid on the words ``employ and retain'' in the first
section cited; but it is respectfully submitted that those words mean
no more than the word ``appoint'' would imply in the same connection.
At any rate, they are to be construed in pari materia with the
subsequent section. Attorneys or counselors at law occupying the
position of Mr. Wise are designated ``special assistants to the
district attorneys;'' they receive a commission (the position is called
an ``appointment'' in the statute); they are required to take the oath
prescribed for the district attorneys, which is an oath of office,
strictly so called; they are subject to the supervision of the
Attorney-General in their conduct and proceeding; they are to assist
the district attorneys in the discharge of their duties; they are
subject to all the liabilities imposed upon the district attorneys by
law, and they are paid out of the Treasury of the United States. This
enumeration seems to exhaust the highest badges of office known to us.
The power of the Attorney-General to fix the compensation of these
special assistants to the district attorneys can not affect the
question, except to indicate the possibility of greater subserviency on
that account.
The constitutional provision before cited was manifestly intended to
exclude from Congress all persons under the official influence of the
Executive. It is public policy, solemnly declared in the fundamental
law. It is our duty firmly to execute the Constitution according to its
plain intent and spirit if we would preserve the independence of
Congress.
The cases decided by the courts, while not based on the precise
question here raised, confirm by clear analogy, the view we have
presented.
We therefore submit the following resolution:
Resolved, That John S. Wise, one of the Members of this House, having
continued to hold the office of special assistant to the district
attorney of the United States for the eastern district of Virginia
after he was qualified as a Member, has thereby forfeited his right to
his seat, and that said seat be declared vacant.
The report in this case does not seem to have ever been acted on by
the House. Mr. Wise retained his seat, of course.
994. The election case of Botkin v. Maginnis, from Montana Territory,
in the Forty-eighth Congress.
No wrong or injury being shown, polling places established without
entire adherence to the law were approved.
Instance wherein a law providing method of establishing polling
places was construed as directory rather than mandatory.
Sec. 994
The mere fact that a voter is a soldier does not necessarily imply
disqualification.
On July 5, 1884,\1\ Mr. A. A. Ranney, of Massachusetts, from the
Committee on Elections, submitted the report of the committee in the
case of Botkin v. Maginnis, from Montana Territory.
Mr. Maginnis had been returned by an official majority of 1,484
votes. Contestant assailed this majority on several grounds, some
involving issues of fact and others of law. The committee, in settling
the question, passed on the following:
(1) As to the legality of certain polling places:
The committee concludes that the polling places established in the
counties of Custer, Dawson, and Missoula were without authority of law.
We regard the statute prescribing that precincts shall be established
at the regular meeting immediately preceding the general election to be
directory rather than mandatory in its character. And following the
familiar rule in such cases, we do not hesitate to say that their
designation at another time, in the interest of a free and convenient
ballot, was such an exercise of power as the commissioners might well
indulge in. However this may be, the committee do not find that there
was any wrong or injury done, or that there was any fraud in the
matter.
The statute referred to is as follows:
Sec. 5. It shall be the duty of the commissioners of the several
counties, at their regular session immediately preceding said general
election, to appoint three discreet and capable persons possessing the
qualifications of electors to act as judges of election in each
township or precinct; and said board shall designate one or more of
said judges, whose duty it shall be to post up or cause to be posted up
in each precinct or township, notices of election in the manner
hereinafter provided. Said board of commissioners shall also set off
and establish at said meeting townships or precincts when the same my
be necessary. And the clerk of said board shall make out and forward by
mail, immediately after the appointment of said judges, a notice
thereof in writing directed to each of said judges so appointed. In
case there shall be no post-office in any one or more of the townships
or precincts in any county, then in that event the clerk shall forward
notices of such appointment by mail to the post-office nearest to such
precinct or township, directed to the judges as aforesaid. If in any of
the townships or precincts any of said judges refuse or neglect to
serve, the voters of such township or precinct may elect a judge or
judges to fill vacancies on the morning of the election to serve at
such election.
* * * * * * *
Sec. 14. It shall be lawful for any elector to vote for Delegate to
Congress at any place of holding elections in this Territory; and for
members of the legislative assembly and all other officers at any place
for holding elections within the particular limits for which such
member of the legislative assembly and such other officers are to be
elected: Provided, That an elector qualified to vote for part and not
all of the officers to be chosen at any election shall vote an open
ballot, and the judges may determine the legality of such vote.''
(2) As to the legality of the votes of certain soldiers:
There is some proof tending to show that ``soldiers'' voted at this
election. In the opinion of witnesses these ``soldiers'' were from 40
to 150 in number. We do not feel that we are justified in presuming
that because the contestant and his witnesses have seen fit to
designate these persons as soldiers that they are therefore necessarily
incompetent as electors.
In his description of them, and of their qualifications as electors,
contestant has contented himself with saying they were soldiers. There
is no evidence that they were not residents of the Territory; that they
had not been residents of the Territory long prior to any enlistment in
the United States service, if it is claimed that they were in the
United States service--a proposition by no means clear in the light of
the proofs. But if it is admitted that they were enlisted men of the
United States Army, and are therefore incompetent as electors, the
committee are still left in doubt as to how and for whom these
incompetent electors cast their ballots.
-----------------------------------------------------------------------
\1\ First session Forty-eighth Congress, House Report No. 2138;
Mobley, p. 377.
Sec. 995
In conclusion the committee reported this resolution:
Resolved, That Martin Maginnis was duly elected as a Delegate from
the Territory of Montana in the Forty-eighth Congress, and is entitled
to his seat as such Delegate.
The resolution \1\ was agreed to by the House without debate or
division.
995. The Alabama election case of Craig v. Shelley, in the Forty-
eighth Congress.
Being satisfied by extrinsic evidence that returns rejected by State
canvassers for informalities were correct as to the result, the House
counted them.
Instance wherein the House unseated a member of the majority party.
On July 5, 1884,\2\ Mr. L. H. Davis, of Missouri, from the Committee
on Elections, submitted the report of that committee in the Alabama
case of Craig v. Shelley.
The sitting Member had been returned by an official majority of 2,724
votes over contestant; but this result had been reached by the action
of the returning boards in throwing out townships in the district which
had returned a total of votes sufficient to change the result. The
committee, after reviewing the law of Alabama in regard to elections,
say:
The supreme court of Alabama has decided that it is the election that
entitles the party to office and if one is legally elected by receiving
a majority of legal votes his right is not impaired by any omission or
negligence of the managers subsequent to the election. (State, ex rel.
Spence, v. The Judge of the Ninth Judicial Circuit, 13 Ala. Rep., 805.)
It has further been held that a mistake by the managers of the
election in counting the votes and declaring the result will not
vitiate the election. Such a mistake may and should be corrected. The
person receiving the highest number of votes becomes entitled to the
office. (State, ex rel. Thomas, v. The Judge of the Circuit Court, 9
Ala. Rep., 338.)
The precincts rejected by the county boards of supervisors were
rejected for sundry reasons. The rejection of the precincts in Dallas
County, according to the evidence of James S. Diggs, an attorney at
law, of Selma, was for the following reasons:
``The voting precincts in Dallas County are numbered from 1 to 36,
but by consolidation of some of the beats there are really, I think,
but 30. I was present at the count of votes of Dallas County made by
the board of supervisors, which board is composed of the probate judge,
the clerk of the circuit court, and the sheriff of said county. The
board was all present at said count. I think there were either ballot
boxes or returns for 23 or 24 of said precincts before said board. I
think they only counted the votes from the following precincts, viz:
Woodlawn, Valley Creek, Cahaba City, Marion Junction, one of the
Lexington boxes, one of the Summerfield boxes, Burnsville. I do not now
recollect of any other boxes that were counted. There were 14 or 15
boxes that were rejected or that they refused to count. These boxes are
as follows: Plantersville, because the poll list was not signed and
there was no statement of the vote in the box; Harrals Crossroads,
because there was nothing in the box but a lot of loose ballots;
Martins, because it was said that the polls were not opened until after
9 o'clock a.m.; Orrville, because there was no statement of the vote in
the box; River, because the names of the inspectors signed to the
returns appeared to be in the handwriting of one person; Pine Flat,
because the poll list was not signed; Union, because the returns were
in an envelope, directed to J.W. Dimmick, and they said they had no
authority to open it; Chelatchie, because the poll list was not signed;
Browers, because the statement of the vote was not signed by the
inspectors; Smyleys, because there was an irregularity in the poll
list, and also because the box, which was nailed up and sealed, did not
have a lock on it; the box was so securely nailed that it had to be
pried open; Elm Bluff, because the statement of the vote was not signed
by the inspectors; Bykens, because the poll list was not signed, and
-----------------------------------------------------------------------
\1\ Journal, p. 1701.
\2\ First session Forty-eighth Congress, House Report No. 2137;
Mobley, p. 373.
Sec. 996
because the box, though securely fastened and sealed, had no lock upon
it; Mitchells, because the election was not held in the place in which
they had been accustomed to hold the election, and because there was
some evidence the tickets were numbered before the board.''
The precincts rejected in the other counties were for reasons very
similar to those in Dallas.
The committee has counted no rejected precinct, except where the
evidence of contestant clearly shows that the election was honestly and
fairly held. It does not criticise the action of the board of
supervisors in the several counties in rejecting these precincts. They
were rejected for technical reasons in the main. The committee, holding
that mistakes and errors of the election officers in declaring the
result and making the returns will not vitiate the election, have
corrected or rather overlooked these errors and mistakes when satisfied
by extrinsic evidence that the return made, although possibly informal,
was correct as to the result. In doing this it has not only followed
the precedents established by the House of Representatives, but the
decisions of the supreme court of Alabama.
So the committee reported a resolution declaring Mr. Shelley not
elected and Mr. Craig entitled to the seat.
After brief debate and without division the resolutions were agreed
to on January 8, 1885,\1\ and Mr. Craig appeared and took the oath.
Mr. Shelley was a member of the majority party in the House.
996. The Missouri election case of McLean v. Broadhead, in the Forty-
eighth Congress.
May a registry law establish a qualification as to residence within a
ward which the State constitution does not establish?
Should the House defer to a decision of a State court applicable to
the case in issue as to its reasoning, but only analagous as to facts?
On February 18, 1885,\2\ Mr. Mortimer F. Elliott, of Pennsylvania,
from the Committee on Elections, presented the report of the majority
of the committee in the Missouri case of McLean v. Broadhead. The
sitting, Member had been returned by a majority of 102 votes.
The investigation of the contest involved the settlement of several
questions of fact, and the following question of law:
The only other claim made by the contestant which can possibly affect
the result in this case is that 50 legal voters who offered their
ballots at their proper polling places, which ballots contained
contestant's name for Congress, were denied the privilege of voting
because their names were not found on the lists furnished the judges
and clerks in the respective precincts; their names having been
illegally and improperly stricken off the registration list.
We have stated the position of the contestant upon this question in
almost the exact language of his brief.
The constitution of Missouri, adopted in 1875, article 8, section 5,
provides as follows:
``The general assembly shall provide by law for the registration of
all voters in cities and counties having over 100,000 inhabitants, and
may provide for such registration in cities having a population
exceeding 25,000 and not exceeding 100,000, but not otherwise.''
The city of St. Louis, in which the Ninth Congressional district is
located, had, at the time of the adoption of the constitution of 1875,
a population of more than 100,000.
In 1881 the general assembly of Missouri passed a registry law, the
first two sections of which are as follows:
``Section 1. There shall be a registration of all the qualified
voters in cities having a population of 100,000 inhabitants or more,
which registration shall be had under the provisions of this act, and
not otherwise.
``Sec. 2. Every male citizen of the United States, and every person
of foreign birth who may have declared his intention to become a
citizen of the United States, according to law, not less than one year
-----------------------------------------------------------------------
\1\ Second session Forty-eighth Congress, Journal, p. 206; Record,
pp. 555, 556.
\2\ Second session Forty-eighth Congress, House Report No. 2613;
Mobley, p. 383.
Sec. 996
nor more than five years before he offers to vote, who is over the age
of 21 years, who has resided in this State one year next preceeding the
election at which he offers to vote, and during the last sixty days of
that time shall have resided in the city, and during the last ten days
of that time in the ward at which he offers to vote, who has not been
convicted of bribery, perjury, or other infamous crime, nor directly
interested in any bet or wager depending upon the result of the
election, nor serving at the time in the regular Army or Navy of the
United States, shall be entitled to vote at such election for all
officers, State or municipal, made elective by the people, or at any
other election held in pursuance of the laws of this State; but he
shall not vote elsewhere than in the election precinct where his name
is registered and whereof he is registered as a resident.''
The constitution required the general assembly to pass a registry
law. The legislature obeyed the command of the constitution, and to
enforce its provisions provided that the citizen should ``not vote
elsewhere than in the election precinct where his name is registered,
and whereof he is registered as a resident.''
There is no misunderstanding this provision of the law. No citizen,
although otherwise qualified, has the right to vote unless at the time
he offers his ballot he is properly registered at the precinct where he
resides. It may be said that the general assembly exceeded its power
when it imposed the penalty of temporary disfranchisement upon the
citizen for omitting to be registered in the manner and within the time
limited by the provisions of said law.
The constitution commands the general assembly to enact a registry
law, and in order to compel obedience to the law the legislature
clearly had the right to say that the failure to register should be
conclusive evidence that such person was not a legal voter.
Registration is not a qualification, but is made the necessary
evidence that the person offering to vote possesses the qualifications
prescribed by the constitution of Missouri.
The legislature, we think, had the right to go that far under the
mandatory provisions of the constitution of Missouri requiring the
passage of a registry law.
Without such a provision the registry law would be a nullity. If a
person offering to vote is allowed to make proof at the polls that he
possesses all the qualifications of an elector, then the registry law
affords no protection against fraud and false swearing. Even if the
board received the ballots of persons who were not registered, and such
persons possessed all the qualifications of electors prescribed by the
constitution, such votes should not be counted.
The majority call attention to the Pennsylvania case of Martin
McDonough (Legal Intelligencer, vol. 41, p. 234), and then say:
It is not necessary in this report to go into the details of the
registration law. It is sufficient to state that the registration is
not completed until five days prior to the election, the board of
revision being required to sit until that time for the purpose of
striking off and also restoring names improperly stricken off by said
board.
The recorder of votes is required on the day prior to the election to
deliver to the judges of election two copies of the corrected
registration lists of their respective precincts alphabetically
arranged, together with a copy of the law regulating elections.
These lists were furnished the judges at the election out of which
this contest arises.
Of the 50 persons who it is alleged offered to vote, and, if they had
been permitted to do so, would have voted for the contestant, not more
than 6 were on the lists furnished the judges of election, and there is
no evidence that they were on the original registry list after the
board of revision had concluded its labors. These lists were required
to be furnished for the guidance of the election officers, and they are
presumed to be correct until the contrary is shown by competent
testimony. The only competent evidence to prove the incorrectness of
these lists is the original registration from which they were taken.
There has been no effort to put in evidence the registration as it
stood five days prior to the election, the time when the power of the
board of revision over it ceased.
The evidence before the committee thus shows that only 6 of those 50
persons were registered, and as they were not registered their votes
were properly rejected, and can not now be counted for the contestant.
After a somewhat careful consideration of the case, we have reached
the conclusion that James O. Broadhead, the sitting Member, was duly
elected.
Sec. 996
The minority views, presented by Mr. Alphonso Hart, of Ohio, took
issue with the position of the majority:
The constitution of Missouri has the following provision upon the
subject of the election franchise:
``Article VIII.
Sec. 2. Every male citizen of the United States, and every male
person of foreign birth, who may have declared his intention to become
a citizen of the United States according to law, not less than one year
nor more than five years before he offers to vote, who is over the age
of 21 years, possessing the following qualifications, shall be entitled
to vote at all elections by the people:
``First. He shall have resided in the State one year immediately
preceding the election at which he offers to vote.
``Second. He shall have resided in the county, city, or town where he
shall offer to vote at least sixty days immediately preceding the
election.
``Sec. 3. All elections by the people shall be by ballot; every
ballot voted shall be numbered in the order in which it shall be
received, and the number recorded by the election officers on the list
of voters, opposite the name of the voter who presents the ballot. The
election officers shall be sworn or affirmed not to disclose how any
voter shall have voted, unless required to do so as witnesses in a
judicial proceeding: Provided. That in all cases of contested election
the ballots cast may be counted, compared with the list of voters, and
examined under such safeguards and regulations as may be prescribed by
law.
``Sec. 5. The general assembly shall provide by law for the
registration of all voters in cities and counties having over 100,000
inhabitants, and may provide for such registration in cities having a
population exceeding 25,000 inhabitants and not exceeding 100,000, but
not otherwise.''
The provision is explicit and easily understood. The qualifications
of a voter are four in number:
(1) He must be a male citizen of the United States. or, if of foreign
birth, must have declared his intention to become a citizen of the
United States not less than one nor more than five years before he
offers to vote.
(2) He must be over the age of 21 years.
(3) He must have resided in the State one year immediately preceding
the election.
(4) He must reside in the county, city, or town at least sixty days
preceding the election.
The foregoing are all the qualifications named as requisite to the
exercise of the elective franchise. The constitution has, however, in
sections 8 and 11, denied the right to vote to occupants of poorhouses
and persons confined in public prisons, and to all officers, soldiers,
and marines in the Regular Army or Navy of the United States. By
section 10 it has also provided that the general assembly may enact
laws excluding from the right of voting all persons convicted of felony
or other infamous crimes or misdemeanors connected with the right of
suffrage. The provision in regard to the registry law does not in any
manner change these qualifications or prohibitions named in the
Constitution.
Suppose the legislature should neglect or refuse to pass any
registration act, would that operate to disfranchise all the
inhabitants of Missouri? Could no election be held; or, if held, would
it be a nullity? Certainly not. It is not in the power of the
legislature to deprive any man of the right to vote, provided he
possesses the above-named constitutional qualifications and is not
included in any of the above named prohibitions. Any law passed by the
legislature which in terms or in effect makes any additional
requirements, whether it be done under the name of a registry law or
not, is to that extent unconstitutional and void. The general assembly
can neither add to nor subtract from the constitutional requisites.
After quoting from the registration law, the minority contend that it
attempts to add to the qualification of voters, and hold:
The whole registration act is in violation of the constitution, and
any registration made under it is an absolute nullity. There is another
feature of the statute deserving attention: The law provides that each
year, a certain time before the election, a board of revision shall be
appointed to examine the registry lists and make corrections of the
same. They shall strike from the list, by a majority vote, the names of
all persons who have removed or have died, or who, for any reason, are
not entitled to registration under the provisions of this act. This
revisory board are to execute the unconstitutional
Sec. 997
provisions of section 2, and hence their action is based upon and
infected with the same infirmity as that of the recorder. Since the
hearing of this case before the subcommittee our attention has been
called to an opinion delivered by the St. Louis court of appeals on the
13th of May, 1884, upon an appeal from the St. Louis circuit court, in
the case of Ewing v. Hoblitzell, in which certain portions of the
registry law are declared unconstitutional. The particular points which
we have discussed were not involved in that case and the judgment of
the court was not invoked upon them. The inquiry arose upon another
branch of the statute. We are justified, however, in saying that the
reasoning of the court in the case referred to, if applied to the
statute, would have the effect to invalidate the entire action of the
recorder of voters, and also the action of the revisory board. By the
charter of St. Louis the power of appointing the recorder of voters,
the board of revision, and also the judges and clerks of election is
lodged with the mayor. The registration act to which we have referred
and the amendments made to it require the appointment of the recorder
of voters to be made by the governor, and the judges and clerks of
election and board of revision are appointed by the recorder. The court
in the case referred to holds that the recorder of voters had no
authority to appoint judges and clerks of election, and that the law
giving him that right was invalid, as an invasion of the chartered
rights of the city of St. Louis and its mayor. The same doctrine would
hold good as to the appointment of the recorder of voters. The court
also, in the above case, holds that the registry law is invalid for the
further reason that it is such special legislation as is prohibited by
the constitution of Missouri.
We thereupon submit that the registration law of Missouri is invalid
and void.
If, however, we assume that the registration law is a constitutional
and valid act, there still remains another important question for
consideration: Is the action of the board of revision which is provided
for in the law final, or have the judges of election the right to
review their proceedings and pass upon the qualifications of voters
after the revisory board have acted?
The sitting Member contends that the board of revision is a judicial
body, and from its decision there is no appeal, and that there is no
redress-from any wrong it may commit. This view is expressly
contradicted by the statute itself, for in section 6 it is provided
that even though the name of a person offering to vote is upon the
registry list, ``he may be challenged, and it shall be the duty of the
judges of election to try and determine in a summary manner the
qualifications of every person challenged; and if they find he is not a
voter, then his vote is to be rejected.'' If the action of the revisory
board is not final in the case of men whose names are on the list, why
should it be as to men who are not on the list?
After commenting on the manner in which the registry lists were
revised and the alleged lack of care and fairness, the minority
conclude:
We are of opinion that these votes should have been received by the
judges of election, it having been clearly shown that they were legal
voters on the 7th of November, 1882, that their names had been upon the
registry list, and that they were stricken off or left off by mistake.
But one conclusion can be arrived at. All election laws should be
construed liberally and in favor of the largest privilege to the voter.
Our conclusion upon this branch of the subject is, first, that the
entire registration was invalid, being in conflict with the
constitution of Missouri; and further, that even admitting its
validity, the registration and revision of the registry lists was
characterized by fraud and mistake as to the names of at least 35 of
the persons whose votes were rejected for want of registration.
Therefore the minority concluded that contestant was elected.
The report was not acted on by the House.
997. The Iowa election case of Frederick v. Wilson, in the Forty-
eighth Congress.
The State law providing for preservation of the votes as a record but
not for a recount, the House corrected the returns by an unofficial
recount which it deemed correct.
As to the sufficiency of a recount which justifies a disregard of the
returns of the sworn election officers.
Sec. 997
On February 19, 1885,\1\ Mr. Risden T. Bennett, of North Carolina,
from the Committee on Elections, submitted the report of the majority
of the committee in the Iowa case of Frederick v. Wilson.
The sitting Member had been declared elected by the State canvassing
board by a majority of 23 votes.
The principal issue in the case was as to the validity of certain
recounts of votes. The recount in Tama Township, which was one of
several, is thus discussed by the majority report:
Contestee criticizes this recount as not having been made pursuant to
law. The laws of Iowa in no manner provide for a recounting of the
ballots. It simply provides that the clerk shall preserve them until
after the time for contesting the election has expired. He is not
required to keep them in any box or in any particular way. They are a
record with the township clerk. Under the statutes of Iowa and the laws
of the United States there is no technical rule surrounding them. The
only question before the committee is, Are they the same ballots as
cast and what is the correct count? The manner of the recount and the
time of the recount are immaterial. These ballots were strung by the
judges and left with the township clerk. While contestant's testimony
was being taken the township clerk opened the box in the presence of
three men and counted the ballots for Representative. All testify, and
it is not questioned, that the clerk alone handled the ballots and they
were in no manner changed or mutilated. Afterwards the ballots were
also brought before the commissioner and publicly counted. Both these
recounts agree and give the result before stated.
The clerk who thus examined the ballots was a partisan friend of
Wilson and Frederick was not connected with it. The clerk violated no
law, as the ballots are not required to be kept secret; manifestly it
would be wrong to deprive contestant of this evidence, and the
objection to the recount is without weight when it appears that not
only were the ballots kept as required by law, but it is conclusively
shown that the ballots were not tampered with nor could they have been
changed. The election officers of this precinct were all partisan
friends of Wilson. A request to have a Democrat appointed on the board
was refused.
In this township we attach much importance to the fact that the
return upon its face impeaches itself; the 4 votes returned in excess
of the ballots actually cast, added to the discrepancy of 5 between the
tallies of the two clerks, makes precisely the number changed by the
recount. Not only this, but the evidence shows that the count on the
night of the election was made under circumstances rendering it highly
probable that mistakes occurred. Here again we base our conclusion upon
the general evidence, accepting the recount as confirmatory proof. If
there was nothing suspicious on the face of the return, and no proof
showing the original count incorrect, and fairly showing the recount as
giving the actual vote, we should not feel justified in disturbing the
official count and return; but, in the light of all the testimony, we
have no hesitation in concluding that 9 votes too many were certified
up for Wilson, and we on this account deduct 9 votes from him.
The minority views, presented by Mr. S. H. Miller, of Pennsylvania,
object to the validity of the recounts:
In Iowa the ballot boxes are left by law with the township clerk, who
by law is ex officio a clerk at the election, and they are directed to
be placed in some convenient condition for preservation and deposited
with the township clerk, who is to keep them until the time is passed
for contesting the election of any officer voted for. The law is as
follows:
``Sec. 629. One of the poll books containing such returns with the
register of election attached thereto, in cases where such register is
required by law, shall be delivered to the township clerk and by him
filed in his office. The other poll book, with its returns, shall be
inclosed, sealed, and superscribed, and delivered by one of the judges
of the election within two days to the county auditor, who shall file
the same in his office.
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\1\ Second session Forty-eighth Congress, House Report No. 2623;
Mobley, p. 401.
Sec. 997
``Sec. 630. When the result of the election is ascertained, the
judges shall cause all the ballots, including those rejected, with the
tally list, to be placed in some convenient condition for preservation
and deposited with the township clerk, who is to keep them until the
time is passed which is allowed for contesting the election of any
officer voted for.''
As contestant can not, under any claim or view, be seated unless by
the benefit accruing to him under the alleged recount, we desire to
call the attention of the committee to the law governing recounts of
ballots, published herewith.
A brief history of these recounts need but be given to stamp them as
worthless. What is that history? After the returns of the district were
all in and contestee was elected by a small majority, contestant hired
agents to secretly go round the district to hunt up the ballot boxes
and examine the ballots to see what they showed. One witness, C.W.
Stone, in behalf of contestant, admits he was a hired agent, by the
day, of contestant. That in two counties alone he opened the boxes of
about thirty precincts, without authority of law or color of right, and
examined, inspected, and professed to have assisted in counting the
ballots. He was twenty-one days engaged in this work without the
knowledge of contestee or notice to any friend of his, laying the
foundation for this contest. His testimony is found on pages 77 and 78
of the record. This witness is brought in to prove he did not change
the ballots, but only touched them with the rubber end of his pencil.
Thomas Stapleton is another hired agent (p. 338). The extent of his
area ``was Iowa County and some others.'' He admits freely he handled
the ballots.
William A. Palmer (p. 218) was engaged by a Democratic editor to
visit Cedar Township, Johnson County. He got the poll book from the
ballot box and took it to Iowa City and kept it two weeks. At Highland
Township, Tama County, ``Mr. Frederick and a man from Gilman came over,
``and Cunningham--all friends of contestant--and ``Mr. Frederick strung
the ballots.'' (See p. 141.)
There is not a ballot box which, on a recount before the notary who
took the testimony, gave an increased majority to contestant or a
decreased majority to contestee but what had been previously, opened by
unauthorized persons between the official count on the night of
election and the recount before the notary. Some of the boxes had been
opened as often as three times.
The minority also quote the cases of Kline v. Myers, Cook v. Cutts,
and the textbook of McCrary; and finally concludes:
The issue in this case, as presented by the majority report, is: Will
an official count, made by sworn officers immediately upon the closing
of the polls, be set aside upon proof that an alleged recount, made by
unauthorized persons, including the paid agents of the contestant, and
made without the knowledge of contestee, showed a different result from
the official count?
To seat the contestant in this case imperils every Member's seat in
the future where majority does not exceed 25 votes.
Once establish the precedent that a defeated candidate can hire an
agent to open the ballot boxes in the district and tamper with the
ballots before a recount is had before the legal authorities in
pursuance of law, and no man's election will be safe.
In the language of Judge Cook (quoted from McCrary on Elections, p.
209), a Member of this House, and a member of the Committee on
Elections, when he himself was a contestant in the Forty-seventh
Congress.
``Before the ballots should be allowed in evidence to overturn the
official count and return, it should appear affirmatively that they
have been safely kept by the proper custodian; that they have not been
exposed to the public or handled by unauthorized persons, and that no
opportunity has been given for tampering with them.''
Also the minority say:
The majority report gives the seat to contestant wholly and solely
upon the grounds of pretended recounts of ballots in ten precincts, and
in every instance but two the ballot boxes containing the alleged
ballots had been opened by a hired agent of the contestant, hired by
the contestant for the express purpose of traveling over the district
and having the boxes opened and recounted without the knowledge of the
contestee or pretended authority of law.
Sec. 998
998. The case of Frederick v. Wilson, continued.
Naturalization by a court whose authority was unquestioned for years
was sustained by the House.
As to what is meant by a common-law jurisdiction justifying a court
to naturalize aliens under the act of Congress.
A paster which did not cover the name of the rival candidate was yet
held to make certain the intent of the voter.
The election officers having received a made-up ballot of which voter
had neglected to paste the two parts together, the House declined to
overrule the action.
Various other questions were also considered in the determination of
the case:
(1) As to naturalization:
Contestee attacks votes cast for contestant by men whom contestee
claims were not naturalized. The fact is they were for the greater part
naturalized in due form by the county court of Iowa. It is claimed that
this court did not have jurisdiction to induct aliens to citizenship.
It seems this court assumed jurisdiction and did grant naturalization
papers in various counties, and these people have voted unquestioned
for many years. After patient examination of the laws of Iowa and the
decision of courts we are convinced that this court had the
jurisdiction, and its action was valid. The authorities concur in this,
that the State courts mentioned in the act of Congress as having
common-law jurisdiction are such as exercise their powers according to
the course of the common law. It was not meant they should have all
common-law jurisdiction over every class of subjects, including all
civil and criminal matters.
The minority concur in this:
Whether it had jurisdiction or not is a question we do not here pass
on. As stated by the majority report:
``It assumed jurisdiction and did grant (some years ago)
naturalization papers in various counties, and the persons thus
naturalized have voted unquestioned for many years.''
We count all these votes for the contestant, Mr. Frederick, amounting
to nearly 60 in all.
(2) As to a defective ballot the majority hold:
In Marietta Township, Marshall County, a Republican ballot was cast
having Frederick's name on a ``paster,'' placed under the words
designating the office of Representative, but not so as to cover the
name of Wilson; this ballot was not counted for either. We think it
should have been counted for Frederick. The same rule must apply here
as where the name of one candidate is written and the name of the other
is not erased. It is well settled that the name written must be counted
and the printed name rejected, because the writing is the last act, and
shows the intent of the voter to cast his ballot for the name written.
The minority say:
Here is a claim of one vote by reason of a paster. The paster was
above Wilson's name, and of same size print. The judges, not knowing
for whom the voter intended to vote, threw out this ballot and counted
it for neither. (See Randall's testimony, Rec., p. 116.)
(3) As to another defective ballot the majority report says:
A voter handed in an open ballot consisting of the Democratic State,
Congressional, and county ticket, the township being blank; on this he
placed a township ticket filled out. The judges received this ticket
openly, folded it up, and deposited it in the box without objection;
afterwards it was not counted, on the ground that it was a double
ballot. This was erroneous. It was not a double ballot; it was one full
ballot in two pieces. Had it been pasted together no question would
have been raised, but as it was openly received and folded together it
was equally clear, and one vote must here be added to contestant.
Sec. 999
999. The case of Frederick v. Wilson, continued.
Voters being deceived in casting a ballot not intended by them, the
House corrected the error.
A return was corrected on the evidence of the tally list supplemented
by oral testimony of an election officer and a recount of ballots.
Instance of obstruction on an election case which forced a compromise
as to another matter of legislation.
(4) In Homer Township certain men were induced to vote a ticket
containing sitting Member's name by reason of deceptive representations
made by supporters of sitting Member. The majority of the committee
favor a correction of the result on account of this deception.
The minority deny that the voters were deceived.
(5) The majority report thus discusses certain irregularities:
The State canvassing board, on the 11th day of December, 1882,
declared James Wilson elected by a majority of 23 votes, and he was
duly commissioned. The county canvassers of Marshall County refused to
count the votes from Taylor Township; but it was afterwards irregularly
certified to the State board, and by them counted in their canvass,
contrary to and in total disregard of an injunction issued by a court
of competent jurisdiction at the State capital.
The contestant assails the vote of said township for fraud, and he
sets out as badges of the fraud that the ballots were handled and
counted by the judges of the election during the progress of the voting
some hours before the time for closing the polls; that the secrecy of
the ballot was invaded and violated by the judges; and that more votes
were cast for him than were counted or returned.
In the count by the State canvassers the contestant was given 8 votes
and the contestee 48 from that precinct.
We find that the judges of election at this precinct were guilty of
gross and flagrant irregularities. They began to count the votes before
the polls were closed. They counted the votes before the hour
prescribed by law for counting them was reached, and after they had
thus counted, voters to the number of 10 or more voted and in effect
were wholly deprived of that secrecy and shield which the law provides
for and puts around the ballot. We, however, allow the canvass as made
by State board to stand.
(6) As to the relative value of returns and the tally sheet:
In Buckingham Township, Tama County, the returns or certificate gave
Mr. Frederick 43 votes in both the books, and in the book retained by
the township clerk the tally sheet gave him 43 votes; but in the one
sent to the county auditor the tally sheet gave him only 38 votes. The
county canvassers disregarded the return before them (which gave him 43
votes) and based their return to the State canvassers on the tally
list. This was of itself an error, because, under the laws of Iowa, the
return is of higher evidence than the tally sheet. The clerk who kept
the tally list which was 5 short testified that he made the mistake of
5 against the contestant, and swears that Frederick received 43 votes.
A recount of the votes by the township officers shows that the
contestant received 43 votes. A mere examination of the two returns and
the two tally sheets leaves no doubt that he received 43 votes; but
when to this we add the testimony of the clerk and the recount the
proof is simply overwhelming. We here add 5 votes to those for
Frederick.
The majority concluded:
The leading question in the case is this: Will the House, by its
constituted agents, go behind all certificates and returns to inquire
into and correct all mistakes in elections brought to its notice by a
contest legally made?
We submit to the House for adoption the following resolutions:
Resolved, That James Wilson was not elected as a Representative in
Congress from the Fifth district of Iowa, and is not entitled to a seat
on the floor of this House.
Resolved, That Benjamin T. Frederick was duly elected as a
Representative in Congress from the Fifth district of Iowa, and is
entitled to be sworn in as a Member of this House.
Sec. 999
The minority proposed a resolution confirming the title of sitting
Member to the seat.
The report in this case was called up on March 2 and 3, 1885,\1\ in
the closing hours of the Congress, and consideration was for a time
obstructed by the minority. Finally, evidently by a compromise
affecting the fate of another question, the report was considered and
the resolutions proposed by the majority were agreed to without
division or debate.
Mr. Frederick thereupon appeared and took the oath.
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\1\ Journal, pp. 745, 746, 807; Record, pp. 2325, 2412, 2565