<DOC>
[Hinds Precedents -- Volume II]
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Chapter XXXVI.
GENERAL ELECTION CASES, 1889 TO 1891.
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1. Cases in the Fifty-first Congress. Sections 1018-1040.\1\
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1018. The Arkansas election case of Clayton v. Breckinridge in the
Fifty-first Congress.
An election case having been suspended by the assassination of
contestant, the House directed the Elections Committee to inquire and
report as to further proceedings.
A resolution relating to the prosecution of an election case was held
to involve a question of privilege.
The House authorized an investigating committee to take testimony in
a district wherein the contestant had been assassinated.
Where the taking of testimony was suspended by contestant's death,
the House itself took additional testimony, but considered the original
case continued.
A returned Member whose seat is contested is nevertheless eligible to
appointment on any committee.
On December 16, 1889,\2\ Mr. John F. Lacey, of Iowa, rising in the
House, and being recognized, offered the following:
Whereas, it is well known that a contest for a seat in this House was
duly commenced by Hon. John M. Clayton, of Arkansas, against Hon. C. R.
Breckinridge, a sitting Member; and
Whereas it is a matter of public notoriety that the said Clayton,
while engaged in taking testimony in the said contest, was
assassinated, and all further proceedings thereby suspended:
Resolved, therefore, That the Committee on Elections be, and is
hereby, directed to inquire and report what further proceedings should
be had in relation to the said case; and they are authorized to send
for persons and papers if deemed necessary by them for the
investigation of the said matter.
The Speaker \3\ having ruled that this resolution involved a question
of privilege, the House proceeded at once to its consideration, and the
resolution was agreed to without division.
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\1\ See also cases of--
Mudd v. Compton, Maryland. (Vol. I, sec. 577.)
Smith v. Jackson, West Virginia. (Vol. I, sec. 581.)
\2\ First session Fifty-first Congress, Record, p. 196.
\3\ Thomas B. Reed, of Maine, Speaker.
Sec. 1018
On March 10, 1890,\1\ Mr. Lacey submitted from the committee the
following report:
In pursuance of the directions contained in the foregoing resolution,
the committee have obtained the notice of contest and answer of the
contestee and all the evidence which had been taken up to the time of
the death of Mr. Clayton. The attorney for Mr. Clayton has presented to
the committee a memorial in relation to the said contest, which
memorial has been submitted to Mr. Breckinridge, and he has presented
to the committee a statement in his own behalf. We have directed that
the foregoing papers be printed for the information of the House.
The committee have proceeded as far as they can under the said
resolution, and they therefore report: [The following resolution is as
adopted by the House, a slight amendment having been added by the
House.]
``That, owing to the alleged assassination of Colonel Clayton,
whereby the contest has been suspended, it is of the highest importance
that the facts in the case should be thoroughly investigated, and
recommend the passage of the following resolution:
``Resolved, That a subcommittee of five be appointed by the chairman
of the Committee on Elections to make a full and thorough investigation
of the contested election case of Clayton v. Breckinridge; to take and
report all the evidence in regard to the methods of said election; to
the contest and all events relating thereto or arising therefrom after
said election, and as to whether the contestant or the contestee or
either of them was lawfully elected, and report such evidence to the
Committee on Elections, and said committee will report said evidence
and its findings to the House for further action.
``Said subcommittee is empowered to issue subpoenas for witnesses; to
send for persons and papers; to employ a stenographer and deputy
sergeant-at-arms, and to sit during session of the House. Said
subcommittee may proceed to Arkansas, if deemed necessary by them, to
take any part of said testimony.
``That all expenses of said committee shall be paid out of the
contingent fund of the House. That all vouchers or expenditures shall
be certified by the chairman of the subcommittee of the Committee on
Elections. The Clerk of this House is authorized to advance the
necessary funds to the chairman of said subcommittee upon his drafts
therefor in sums not exceeding $1,000 at any one time, to be accounted
for under the terms of this resolution, under the supervision of the
Committee on Accounts.''
This resolution was agreed to without division.
On August 5 \2\ Mr. Lacey submitted the report of the majority of the
committee.
At the outset of the debate in the House on this report, a
preliminary question was raised as to the nature of the proceedings.
Mr. Charles F. Crisp, of Georgia, raised the question that this case
was not a statutory contest, but an investigation.\3\ The contest of
Mr. Clayton had by his death abated, and the existing proceedings were
an investigation by the House to determine the ``election'' of the
sitting Member. Therefore Mr. Breckinridge had not been charged with
the duty of proving votes aliunde in precincts where returns were
rejected for fraud. And it was further urged that in this case, where
returns were rejected, the committee might not count votes proven
aliunde for Mr. Clayton, and at the same time omit Mr. Breckinridge's
vote, because he had not proven it.\4\ It appeared that Mr.
Breckinridge, after the investigation was over in Arkansas, had asked
leave to take testimony in proof of his votes.
In reply to this contention it was argued \5\ that the committee had
obtained the notices of contest and answer of contestee and all the
evidence taken up to the time of Mr. Clayton's death, also a memorial
of Mr. Clayton's attorney. The plead-
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\1\ Record, pp. 2097-2098; Journal, p. 326.
\2\ House Report No. 2912; Rowell, p. 681.
\3\ Record, pp. 9561, 9616, 9620.
\4\ Speech of Mr. Wilson, of Missouri. Record, p. 9568.
\5\ By Mr. Dalzell, of Pennsylvania. Record, pp. 9747, 9748.
Sec. 1019
ings were made up and the case defined. It mattered not how the
testimony was taken, whether before a notary under the law or by the
committee. In the case of Thoebe v. Carlisle it had been taken in part
by the committee, but it did not cease thereby to be a contested-
election case. There was nothing in the point that this was an
investigation and not a contest. It was also pointed out \1\ that the
committee while in Arkansas had offered subpoenas to sitting Member and
to his party friends on the committee to summon witnesses to prove the
vote aliunde had he chosen so to do.
The report of the majority of the committee shows that sitting Member
had received his certificate:
The contestee received the governor's certificate by a majority
certified as amounting to 846, and has not only taken part in the
organization of the House, but has during this contest filled the
exalted place of a member of the Committee on Ways and Means.
1019. The election case of Clayton v. Breckinridge, continued.
The ballot box being stolen and no returns made, the vote was proven
aliunde.
Where the law provided for identification of the ballot cast by a
voter, and where 62 voters examined ballots credited to them and
disowned them, the returns were rejected for fraud.
Fraudulent election returns are good for proof of no part of the
vote, but both parties must resort to proof aliunde.
In a contested-election case involving alleged fraud by election
judges the acquittal of those judges in the courts is not an
adjudication binding on the House.
The contestant being dead, the swearing in of returned Member creates
no estoppel to prevent further prosecution of the contest.
Discussion as to counting votes which would have been cast had there
not been a failure to open the polls.
Forms of resolutions declaring a seat vacant in a case wherein the
contestant has died.
The House declined to reopen an election case to enable returned
Member to prove his vote aliunde at several precincts whereof the
returns had been rejected.
After giving an account of the political conditions in the district,
of the murder of Mr. Clayton, and other alleged murders which were
presumed to have been connected with the investigation, the committee
proceeded to consideration of the election itself.
(1) At Plummerville, which had of old been a disorderly precinct, the
sheriff of the county raised a posse of partisans of sitting Member,
ostensibly to guarantee a fair election. The report describes the
proceedings:
These men appeared upon the scene in time for the opening of the
polls, which, under the Arkansas law, is 8 o'clock a. m. The judges of
the election consisted of two Republicans and one Democrat. The
Democrat, Thomas C. Hervey, had been appointed by the county judge in
vacation, and to set at rest all questions as to the validity of his
appointment the county judge had suggested that Mr. Hervey's
appointment should be confirmed by the voters at the time of opening
the polls. Accordingly,
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\1\ Record, p. 9621, speech of Mr. Lacey.
Sec. 1019
one of the Republican judges nominated Hervey as a judge of the
election, and the assembled voters, regardless of party, voted for him
and confirmed his appointment. Mr. Hervey then announced that this was
an attempt to question his authority, and that he would also submit to
the voters who the other judges should be, and nominated Mr. Hobbs and
Mr. Palmer as judges, both Democrats, and put it to vote, calling for
the affirmative and declining to put the negative, and at once declared
the Republican judges ousted who had without question been lawfully
selected by the county court.
The Republican judges objected to this summary ejectment from office,
and insisted on taking part in the election. The purpose and character
of the deputy sheriffs at once became manifest. They took the matter in
hand and prevented the two Republican judges from exercising their
rights. The election was therefore held by three Democratic judges and
two Democratic clerks.
There was, however, a Federal supervisor present, and of his acts the
report speaks:
Mr. Wahl, the Federal supervisor, seems to have been a man of much
nerve and presence of mind; he watched the box constantly and
accompanied Mr. Hervey, the same am who had taken part in a previous
trouble about the Plummerville ballot box and who was one of the
judges, when he took the box to supper. Hervey complained that Wahl
``watched him like a thief, ``and subsequent events justified Wahl in
his so doing.
The judges separated, and left Wahl and one of the judges in charge
of the box. After dark some one came to the room where the box was and,
looking into the door, asked if they had commenced counting. Mr. Wahl
answered that they had not. Mr. Hobbs, the judge, whose back was turned
at the time, asked Wahl who that was, and Wahl replied that it was O.
T. Bentley.
This same Bentley is still the deputy sheriff of the county, and the
duty of capturing the murderers of Clayton and thieves of the ballot
box has been largely intrusted to him. He has been in a position to
know all that the governor and other State officials have been doing to
disclose the crimes in Conway County. A few minutes after Bentley, or
the man whom Wahl recognized as Bentley, disappeared, four men with
handkerchiefs over their faces and with revolvers in hand entered and
took the ballot box and poll books away by force. Mr. Hobbs says that
they had white faces, and there was no evidence to the contrary. In the
light of these well-known facts it is strange that contestee should
have charged that the ballot box with nearly 500 Republican majority
was stolen by Republicans.
The committee found, by proof aliunde--no returns having been made or
tabulated from this precinct--that Clayton received 560 votes and
Breckinridge 125, a majority of 435 for Clayton. This testimony
consisted principally of the testimony of the voters themselves, and it
will be noted that in this precinct sitting Member's vote was proven.
(2) With the correction for Plummerville, there was left a majority
of 411 for sitting Member in the district. There were four other
disputed precincts, whence a majority of 422 votes had been returned
for sitting Member. The committee threw out these returns for frauds,
thereby leaving a majority of 11 for contestant in the district. But
enough votes were proven aliunde for contestant in these precincts to
make his majority in the district 459. The method of procedure as to
these precincts is illustrated by the following from the majority
report as to White River precinct:
The return shows:.......................
Breckinridge........................ 210
Clayton............................. 44
Under the laws of Arkansas the judges are required to mark a number
on the outside of the ballot before putting it in the box, and such
number corresponds with the number opposite the voter's name on the
poll list. In this precinct 62 persons who swear they voted for Clayton
deny that they cast the tickets numbered as having been cast by them.
The original tickets were presented to them before the committee, and
are shown to be the opposite of what they voted. These 62 tickets were
evidently changed by or with the connivance of the Democratic judges of
the election, and when corrected make a difference of 62 off of
Breckinridge's vote and 62 to be added to that of Clayton.
Sec. 1019
These ballots had manifestly been substituted after they were
deposited, and this could not have been done if the judges had not
either permitted it or committed the act themselves This change of 124
invalidates the return. A fraudulent return of this character can have
no effect, and as a matter of law we must deduct from--
Breckinridge's reported 846
majority of.
The votes so 210
fraudulently returned.
-----
Leaving a majority 636
of.
In counting Clayton's vote, 44 votes were credited to him in making
Breckinridge's original majority. The proof shows that he got 62 votes
where the tickets were changed, 39 votes where his tickets were not
changed, as shown by the voters themselves, and 5 others where the
proof is that the voters were furnished with and cast Clayton tickets,
and that the voters were Republicans. Total vote proved for Clayton,
106. He has already been credited with 44, so he should now be credited
with the balance, 62. There were also two names of voters not on the
book, who voted for Clayton. We will insert the names of all these
voters in an appendix, which we think will be more convenient for
reference than to incorporate them here.
In general as to this method the majority say:
Contestee complains that the committee may refuse to accept the
impeached returns as of any validity, and thus work a hardship upon
him.
If the returns have been falsified by the election officers, it is a
well-settled rule of law that they cease to have any prima facie
effect, and each party can only be credited with such votes at the box
in question as he may show by other evidence. This rule is one of long
standing, and one of which contestee, as an old Member of Congress,
must have had notice. It works no hardship upon contestee which does
not fall as heavily on the contestant. The contestant is required in
the first instance to show the fraud in the return, and then must
follow that up by proving his vote; or, in some instances, the proof of
the fraud is connected with the proof of his vote.
In the present case the fraud is in a large degree shown by proving
that votes cast for Clayton were substituted by ballots for
Breckinridge, and in proving the fraud the votes for contestant are
proved at the same time. Contestant is required to go outside of the
returns to prove up his vote, because the judges of the election have
falsified the returns. It is no more a hardship upon the contestee to
prove up his vote by outside evidence than it is upon the contestant.
If contestee's partisans had perpetrated no fraud, the returns would be
accepted as true on both sides. His friends having falsified the
returns and substituted his ballots for those of his opponent, there is
no return at all of any legal effect. He might as well complain of the
hardship of being compelled to prove up his vote at Plummerville, where
his adherents stole the ballot box before the vote was counted. No
doubt contestee received some votes at the boxes where the returns were
falsified, which votes he wholly failed and neglected to prove whilst
he had the opportunity in Arkansas.
If the holder of a promissory note alters the note and raises the
amount from $1,000 to $2,000, he is met in court with the rule of law
which prevents him from using the fraudulent instrument in evidence. It
is not even good proof as to the $1,000. The same principle is applied
to fraudulent election returns. Courts can not take the fraudulent
statements of the election officers and analyze them and select the
true from the false. The whole stream is sullied by the impurity, and
all that can be done is to reject the returns altogether and seek other
sources of evidence.
Speaking of their disposition of the four precincts, the majority
say:
The above is the computation upon the settled rules of election law
in this House. We will now state the return upon the most favorable
view that contestee could claim, under the case of Jones v. Glidewell
(supreme court of Arkansas, A. D. 1890). If we were to throw out the
whole vote in the impeached precincts, and inasmuch as Breckinridge has
not proved his vote there, to ignore the proof of Clayton's vote, it
would show the following results:
Breckinridge's majority 846
Deduct Howard Township, 435
Conway County,
majority shown.
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Majority remaining..... 411
Sec. 1019
Now deduct the vote returned for both parties in the disputed
precincts:
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Breckin-
Precinct. ridge. Clayton.
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White River................................................................................. 210 44
Cotton Plant................................................................................ 186 132
Augusta..................................................................................... 98 34
Riverside................................................................................... 197 59
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Total................................................................................. 691 269
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By thus considering the proof for the purpose of showing fraud alone,
and not for the purpose of counting the votes, Breckinridge would lose
the difference between 691 and 269, or 422, which would leave Clayton
elected by 11 majority without taking into consideration Freeman
Township. But this method, so favorable to contestee, is not the rule
of this House, and we only make the computation in this form to show
that by the most favorable method of calculation the contestee is not
entitled to the seat which he holds after the proof is adduced as to
the Plummerville box.
(3) The majority report also passes on the following question:
Contestee claims in his application for further time, and also upon
the floor of the House, and more surprising still, his counsel, General
Garland, also claims that the acquittal of the judges and others
charged with frauds in this election is a fact binding upon this House
and the committee; that such result in a criminal case before a jury is
practically an adjudication that there was no such fraud, and that such
adjudication should be so accepted by Congress. It is a common saying
in criminal proceedings that it is better that ninety-nine guilty men
should escape than that one innocent man should be convicted.
All of the Woodruff County officials who were indicted were
convicted. In fact, all the persons who were indicted were convicted,
except the persons indicted for the crime against Wahl and those for
the stealing of the Plummerville box. Two persons were indicted and
convicted on one trial, and acquitted on a new trial. This only shows
that the evidence in the cases of conviction satisfied the minds of the
jurymen to the exclusion of every reasonable doubt. Upon the new trial
when there was an acquittal, no one can say whether it was a difference
in the evidence or a difference in the character of the jury. It is
sufficient for us to determine this proceeding upon the evidence
introduced before us, without speculating upon the causes that might
have led an Arkansas jury to acquit or convict.
The distinction between the rules governing juries in criminal cases
and those prevailing in civil proceedings is well known, and we can not
but express surprise at the persistence with which the contestee and
his counsel cling to this theory that the verdict of the Arkansas
juries upon the indictments for violating the election law should be
treated as an adjudication that contestee is entitled to his seat. It
might as properly be contended in an action of replevin, brought by the
owner of a stolen horse against a party claiming title through the
thief, that the thief had been able to prove an alibi on a criminal
trial, and that therefore this should be regarded as an adjudication
divesting the true owner of his title, although the owner was not a
party to the criminal proceeding, and had no right to cross-examine
witnesses or produce testimony in his own behalf, nor to appeal from an
adverse decision.
Such a legal proposition could only excite attention by its entire
novelty in a court of justice, where rights of property were involved.
But when it is seriously contended that a seat in Congress obtained by
fraud and ballot-box stealing can not be contested unless the
Government authorities have been able to convict the parties charged
upon indictment, we can only express our surprise at the persistence
with which contestee insists upon so evident an error. The rule
contended for in behalf of contestee does not apply even in small
matters, involving only the rights of property, and to allow the
control of the legislative branch of the Government to be thus decided
would be monstrous. The Constitution, in express terms, declares that
Congress shall judge of the qualifications and election of its members;
and the right to exclude from its body men whose title is procured by
crime does not depend upon the ability of the Department of Justice to
capture and punish the criminals.
The receiver of stolen goods, even though innocent of all guilty
knowledge, can not claim title based upon the failure to catch or
punish the thieves. Only the seriousness with which it is urged
justifies any extended notice of so evident an error.
Sec. 1019
(4) Also the majority report passes on the following point:
Upon the hearing before the full committee the contestee presented a
brief from ex-Attorney-General Garland. He claims that by reason of the
swearing in of Major Breckinridge at the organization of the House some
sort of an estoppel arises by which no contest can be afterwards
carried on. Such is not the rule as to living contestants. They or
their friends are neither required nor permitted to object to the
swearing in of a Member who holds the formal certificate.
No estoppel will arise against the dead. Clayton could not object to
Breckinridge taking the disputed seat. No one else had a right to
appear for him. Other Members present at the time had no apparent title
higher than that of Major Breckinridge. The House was in the process of
organization, and the Members were sworn in by groups.
(5) Also the following case is discussed:
In Freeman Township, Woodruff County, no election was held. This
failure was occasioned by the act of the Democratic sheriff in
furnishing the poll books locked up in the ballot box and with no key.
The Republican supervisor was informed that if he would break open the
box they would hold the election, but not otherwise, as the act, it was
suggested, involved a penitentiary offense. Though anxious to hold the
election, the supervisor did not deem it prudent to incur this risk,
and the election was not held. The precinct had been a very close one,
according to the returns at the State election, but the Republicans
claimed that with the aid of proper supervision, so as to insure a fair
count, there would be a good majority for their ticket.
In fact but few Democrats of this precinct appeared at the polls,
whether because they knew there would be no election or not does not
appear, and the proof did not show how many Democrats were prevented
from voting at this box by the failure of the election officers to hold
the election. Eighty-three persons made proper effort to vote for the
contestant and were prevented by the failure to open the polls. We
attach a list with the other lists in the appendix. This state of facts
raises an interesting question upon the law of elections, to which we
have given some attention, and which, under the peculiar facts of this
case, appears not yet to have been heretofore directly decided. It
becomes, however, an important fact as bearing upon the issue of a
concerted plan to prevent a fair election. If this vote claimed be
counted it would only increase the majority of contestant, and its
omission from the count would not change the result, and therefore we
do not deem it necessary to pass upon the question.
In accordance with their conclusions the majority recommended the
following resolutions:
Resolved, That Clifton R. Breckinridge was not elected to the seat
which he now holds as Representative in Congress from the Second
Congressional district of the State of Arkansas.
Resolved, That John M. Clayton was elected as Representative in
Congress from the Second Congressional district of the State of
Arkansas, and because of his death the seat is declared vacant.
The minority views, presented by Mr. Levi Maish, of Pennsylvania,
dissented from the reasoning of the majority and recommended:
Resolved, That Clifton R. Breckinridge was elected to the seat which
he now holds as Representative in Congress from the Second
Congressional district of the State of Arkansas, and he is entitled to
the same.
The report was debated at length on September 2, 3, 4, and 5,\1\ and
on the latter day the question was first taken on a motion to recommit
with instructions for the committee to ascertain the vote cast for both
parties in the four precincts where the vote of 2&. Breckinridge had
not been proven aliunde. This motion was disagreed to, yeas 83, nays
111.
Then the motion to substitute the resolution of the minority for
those of the majority was disagreed to, yeas 103, nays 141.
On agreeing to the resolutions of the majority there were, yeas 105,
nays 62; so the sitting Member was unseated.
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\1\ Record, pp. 9559, 9616, 9684, 9735-9751; Journal, pp. 1011, 1012,
1014-1016.
Sec. 1020
1020. The West Virginia election case of Atkinson v. Pendleton, in
the Fifty-first Congress.
A recount, although authorized by law, does not avail to overthrow
the count of the election officers unless the ballots are affirmatively
shown to have been kept inviolate.
As to whether a correction of the returns changing the result may
throw the burden of establishing his title on the returned Member.
On February 19, 1890,\1\ Mr. J. H. Rowell, of Illinois, submitted the
report of the majority of the Committee on Elections in the West
Virginia case of Atkinson v. Pendleton.
The returns on which the governor of West Virginia gave the
certificate to Mr. Pendleton showed for the latter a plurality of 19
votes. This result was brought about by a recount, the first count by
the precinct officers having shown, when tabulated, a plurality of 7
votes for the contestant.
At the outset, then, there arose a question as to the competency of
this recount; and then there arose a question also as to the legality
of certain votes impeached on both sides.
(1) As to the validity of the recount.
The law of West Virginia provided: \2\
They [the county court] shall, upon the demand of any candidate voted
for at such election, open and examine any one or more of the sealed
packages of ballots and recount the same, but in such case they shall
seal up the same again, along with the original envelope, in another
envelope, and the clerk of the county court shall write his name across
the place or places where it is sealed, etc.
It was alleged on behalf of contestant that a recount which was made
was untrue. The report says:
The fraud complained of is alleged to have been committed with
reference to the two precincts of Martin's schoolhouse and Archers
Fork.
The claim of the contestant is that after the ballots of these two
precincts had been counted by the judges and clerks of election, and
had been delivered with the poll books to the clerk of the county
court, 14 ballots of those from Martin's schoolhouse and 10 ballots of
those from Archers Fork were changed, or ``scratched,'' by having the
contestant's name erased, so that upon the recount by the county court
the votes for the contestant at Martin's schoolhouse appeared to be 111
instead of 125 as returned by the election officers, and those at
Archers Fork 148 instead of 158.
Two of these ``scratched'' ballots not only had the contestant's name
erased, but the contestee's inserted, so that 2 votes were thus
improperly added to the aggregate for the contestee.
If these 24 votes should be restored to the contestant and these 2
votes deducted from the votes for the contestee, and the other returns
sent to the governor allowed to remain unchanged, the result would be
For the contestant. ....... 19,242
Plus............... ....... 24
---------
................. 19,266
For the contestee.. 19,261 .......
Less............... 2 .......
---------
....... 19,259
---------
Showing a ....... 7
plurality for
contestant of.
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\1\ First session Fifty-first Congress, House Report No. 299; Rowell,
p. 45.
\2\ See speech of Mr. Lacey, Record., p. 1742.
Sec. 1020
The rule has been announced over and over again that returns which
are tainted with fraud can not be made the foundation of the title to a
seat in the House. In the case of Washburn v. Voorhees (3 Congressional
Contested Election Cases, 54) a number of authorities are cited in
support of the rule which is there laid down, as follows:
``When the result in any precinct has been shown to be so tainted
with fraud that the truth can not be deduced therefrom, then it should
never be permitted to form a part of the canvass. The precedents, as
well as the evident requirements of truth, not only sanction but call
for the rejection of the entire poll when stamped with the
characteristics here shown.''
While all agree that where fraud is shown, the result of the fraud
should be in some way avoided, there has been much discussion as to the
manner in which this result is to be reached, and it may be regarded as
settled that the poll will be ``purged'' of the fraud if that be
practicable, and only rejected when no other alternative remains but to
give effect to the fraud or to reject the poll.
In the present case it is unnecessary to enter into the discussion of
this question, for the result will be the same whether the polls in the
two disputed precincts be purged by a resort to the returns made by the
election officers or be rejected altogether.
In order to authorize a recount of ballots in an election contest it
must affirmatively appear that they have been kept as required by law,
and that there has been no opportunity to tamper with them. (Paine on
Elections, sec. 787.)
Before courts or legislative bodies can give weight to the result of
a recount there must be absolute proof that the ballot boxes containing
such ballots have been safely kept and that the ballots are the
identical ballots cast at the election (Paine on Elections, sec. 776,
and authorities cited). An impartial public count of the ballots by
sworn officers made at the close of the polls is better evidence of
what the ballot boxes then contained than a subsequent count made after
a long exposure of the boxes to the tampering of dishonest partisans
(Paine, sec. 787).
Taken together, the adjudications upon this question, judicial and
legislative, establish conclusively the doctrine that the returns of
election officers are to be held prima facie correct; that a recount
changing the result will not be regarded unless it affirmatively
appears that the ballots recounted are the same and in the same
condition as they were when originally counted.
An opportunity to tamper with the ballots by unauthorized persons, or
a failure to keep them as the law directs, will destroy the value of
the ballots as evidence when recounted and a different result reached
than the one returned.
Changing ballots by scratching or by substitution, after return made,
is an old method of committing fraud to change the result of elections
in cases of close contest.
Even when the ballots have been in the sole custody of sworn officers
of the law, it has been found practicable for dishonest men to make
such changes in such a secret way as to defy detection, and on that
account laws have been enacted requiring the destruction of the ballots
as soon as counted, so that they could not thereafter be used to
overthrow the election returns. In large cities especially is it
thought safer to risk the possibility of error in the original count
than to take the chances of subsequent changes.
While in West Virginia the law makes provision for a recount, it does
not dispense with the legal requirements of safekeeping of the ballots,
pending the recount.
We now consider the facts as they appear in the record with reference
to the recount in Wetzel County
The report goes on to quote testimony showing that the election
officers of both parties in the precincts named testified as to the
correctness of their count, while the ballots themselves, where they
were alleged to have been scratched by the voters, bore suspicious
signs of fraud. Furthermore the ballot box was shown not to have been
kept properly, especially being accessible to a notorious man who was
alleged to have offered for a bribe to give testimony discrediting the
recount. The report says:
These two precincts were not recounted until after the president of
the county court had procured an adjournment by telegram, referred to
in the evidence and brief, known to him to be false anddesignedly used
by him to deceive.
Sec. 1020
This telegram was by him shown to a leading Republican, Mr. McIntyre,
engaged in watching the proceedings, and his opinion asked about going
home. The judge talked quite a while about his wife's sickness and
appeared to be much affected. (Record, pp. 214, 215.)
This, of course, was for a purpose, and designed to deceive. On the
same day this judge had been in an upper room of a hotel in the town,
in company with Wells, the sender of the false telegram, and of Lee
Snodgrass, the deputy clerk. (Record, p. 224.)
Up to this time the plurality for Atkinson had not been overcome and
the count was nearly completed.
Previously, at a late hour of the night, that same judge had entered
the vault where those ballots were kept, with one Grail and the clerk
of the court, on the hunt, as he says, of a bottle of beer.
Grail was staying around the court during the recount, and remaining
after the work of the day was over, usually pretty drunk; a fit tool
for dirty work, if he could be trusted, and this a fit opportunity to
find just where the ballot box containing the ballots was located.
But Grail didn't sober up. Wells and Arnett visit the town. Judge
Ernshaw and Lee Snodgrass have a private interview with them. Weils
leaves town and sends a false telegram in another name, by previous
arrangement. The court adjourns for two or three days, and then comes
the recount with the extraordinary result. Ballots, too, which had been
expressly forbidden to be resealed at the beginning of the recount by
the same judge, over the protest of the attorney for Mr. Atkinson, who
had asked that the ballots, after they had been opened on the first day
of the recount, might be resealed until wanted during the recount.
The false telegram, sent by Wells in the name of Black, was dated
November 21, 1888. The recount did not begin again until November 23 or
24.
The majority conclude:
The correctness of the original count is dearly established outside
of the presumption in its favor, and therefore the committee adopt the
returns as a correct statement of the vote in the two precincts of
Wetzel County, and hold that contestant was elected by a plurality of 7
votes according to the correct returns.
The minority views, presented by Mr. Charles O'Ferrall, of Virginia,
analyze the testimony, and do not consider that it impeaches the
recount. They say:
To hold that the contestee shall be deprived of the gain he made by
the recount would be to hold that an act done is fraudulent because
some official connected with it and standing fair and unimpeached in
the community at the time was guilty of conduct demanding censure at
some period thereafter.
We believe the judges of the election at Martin's schoolhouse and
Archer's Fork precincts in Wetzel County made mistakes in counting the
ballots, and that the recount subsequently made by the county
commissioners was correct and truly represented the actual vote cast at
these precincts.
The majority of the committee also set forth this proposition, after
they have concluded that contestant was elected by a plurality of 7
votes according to the corrected returns:
By this conclusion the burden shifts, and it now devolves upon
contestee to establish his right to the seat which he occupies by
affirmative evidence.
This he seeks to do by charging that illegal votes were cast and
counted for contestant sufficient to overcome this apparent majority
and to outnummber the illegal votes alleged to have been cast and
counted for contestee.
The minority views do not discuss this, but in the debate \1\ Mr.
O'Ferrall argued on this point:
I have read the law on contested election cases to a very poor
purpose indeed if I am mistaken in the assertion that the prima facie
case is always with the man who holds the certificate issued by the
governor. If that certificate is issued in accordance with the returns
which are made to the governor,
-----------------------------------------------------------------------
\1\ Record, p. 1736.
Sec. 1021
you can not go behind the returns and inquire whether those returns
were right or not, whether the officers of election did their duty or
not, whether there were illegal votes cast in this or that precinct, or
whether any recount which may have been had after the returns were sent
to the clerk's office was fraudulent or not. These are questions to be
determined in a contest.
In support of this Mr. O'Ferrall quoted the case of Wallace v.
McKinley.
1021. The case of Atkinson v. Pendleton, continued.
The law providing that employees of the State do not thereby gain a
residence in the place where employed does not imply that presumption
of nonresidence may not be overcome by proof.
It having been assumed for many years that a territory was included
within a precinct, voters should not be disfranchised by discovery of a
technical defect.
On a question of residence qualification of voters, ward lines in
cities should be shown by record evidence of boundaries.
In determining qualifications of voters the presumption is in favor
of actual residence as against a claimed intent to reside elsewhere.
A man does not necessarily retain his right to vote in his old home
until he acquires a right to vote elsewhere.
Discussion as to method of determining the nature of unsegregated
votes cast by disqualified voters.
(2) As to certain votes alleged to be illegal. A number of principles
of law were discussed preliminary to the decisions in the individual
cases:
(a) From Nos. 95 to 104, inclusive, are employees of the State asylum
for the insane. We think the evidence shows that they have fixed their
residence there and were entitled to vote.
The statute which declares that employees of the State shall not
thereby become residents of the place where employed does not prevent
their becoming residents if they so elect. The presumption of
nonresidence can be overcome by proof, as in this case.
(b) From 120 to 154, inclusive, the voters voted at Braxton Court
House, and it is insisted that the territory in which they lived had
not been legally annexed to that voting district. An attempt had been
made to so annex it, the residents had so voted for twelve years, and
we do not think they can be disfranchised on account of technical
neglect of the court, after years of acquiescence in what was supposed
to be a legal order, and we hold the votes good.
From 159 to 194, inclusive, it is alleged that the voters voted out
of their wards in the city of Wheeling. While from the oral evidence
introduced it is quite evident that some 10 or 12 of these voters voted
out of their proper wards, the committee are not disposed to include
them in the list of illegal voters, for the reason that no record
evidence was introduced as to ward boundaries, and while both parties
seemed to concede the competency of the evidence introduced, we do not
feel like going into the question in the absence of that better
evidence which must have been easily accessible.
In country precincts common repute and generally acknowledged
boundaries will suffice, but the boundaries of city wards, when
disputes arise about them, ought to be proven by better evidence. But
for this technical neglect the committee would be obliged to find at
least 10 illegal votes in this list. According to our finding there
were cast and counted for contestee 76 illegal votes, as above named.
As to most of these votes there can be no doubt under the evidence. As
to a very few there may be a question depending upon the weight
attached to the evidence of different witnesses.
Also another case similar in principle:
The attacked votes from 13 to 85 voted at Wellsburg, where they have
been in the habit of voting for the last eleven years. And it is
charged that they lived in a portion of the town not belonging to the
Wellsburg voting precinct.
Sec. 1021
The facts are well stated in contestant's reply brief at page 16:
``It seems that before the year 1887 the north line of the town of
Wellsburg and the district of the same name have been coincident, and
that immediately north of the town and in Cross Creek district lived a
considerable population who vote at a precinct known as `Harvey's.'
``In September, 1878, the circuit court of the county entered an
order extending the corporate limits of the town of Wellsburg so as to
include the voting precinct at Harvey's, and so as also to include the
residences of those 73 voters. * * *
``The voting precinct at Harvey's was abolished and a new one opened,
first at Devenney's and then at Lazarville, before the general election
of 1878. This change was made because it was the understanding that the
voters who resided within the recently included territory would vote in
the Wellsburg district, and the old voting place needed not therefore
to be retained for their convenience, and so from that time for eleven
years the voters and the county authorities have treated the region
included in the town as being also a part of the district of Wellsburg.
The persons residing in this region have continuously and without
objection voted in Wellsburg.''
Officers were appointed from persons residing in this territory
required by law to be residents of Wellsburg district.
In August, 1878, the county court established by an order of record a
new precinct ``in lieu of Harvey's, which is now within the boundaries
of the district of Wellsburg,'' thus recognizing this territory as
being within Wellsburg district.
It is not necessary to inquire whether all the forms of law have been
complied with to take this territory into Wellsburg district.
The court and the people recognized the fact; it was accepted as
something accomplished, and the addition has been accomplished as a
matter of fact.
Voters are not to be disfranchised under such circumstances any more
than the acts of de facto officers are to be held invalid in collateral
proceedings. The committee hold that these votes were legally cast, and
do not enter upon any investigation of the evidence as to who got the
benefit of them.
(c) The committee have given the presumption in favor of actual
residence, as against a claimed intent to return to an abandoned
residence when the intent only appears by the act of voting.
We have refused to reject the votes of actual residence even when it
appears that the voter had been in the habit of calling a former
residence his home.
It is quite clear that at this election a strong effort was made to
bring back to the State all absentees who had formerly resided in the
district, and who had not lived abroad long enough to acquire a right
to vote.
Some election officers seem to have adopted the erroneous view that a
an retains his right to vote in his old home until he acquires a right
to vote elsewhere.
Residence may be acquired in a day, but the right to vote may depend
on the length of residence. There are several other illegal votes in
the list challenged by contestant, but no evidence deemed admissible by
the committee as to how they voted. These have been left out of
consideration, the committee adhering to the rules laid down in Smith
v. Jackson, reported at this session.
(d) The minority views set forth certain principles as to the
determination of the candidate for whom an illegal vote was thrown:
These voters either testified themselves for whom they voted, or it
was shown satisfactorily that they were pronounced in their political
opinions at the time of the election, or that they declared on the day
of election which ticket they had voted, or that they were accompanied
to the polls by-well-known party workers, or that their votes were
challenged by the supporters of one and their right to vote defended by
the supporters of the other ticket, or like circumstances, raising a
strong and legal presumption as to the ticket they voted and the
candidate for whom they voted.
This was as much latitude as we believe the law as heretofore
generally administered in this House would allow and, in our opinion,
the extreme limit to which sound public policy, the security of
elections, and the ends of justice in this case, as well as all others
in this or future Congresses will permit.
As to another class of votes the minority say:
But we have not deducted any of these votes, for the reason that the
proof as to how they voted does not come within the rule already
stated. As to class 1, the testimony simply shows that they were
Sec. 1022
considered or reputed to be Democrats, but when they had expressed
themselves, or what opportunities the witnesses had for ascertaining
their sentiments, does not appear. As to class 2, the testimony is of
the same character, only differing in this, that they were considered
or reputed to be Republicans.
In a country like this, where the political opinions of voters are
constantly changing and new issues are constantly springing up, where
party votes fluctuate from year to year and majorities shift from one
side to the other, where each of the two great dominant parties strain
every nerve in every campaign to convert those who have been in the
ranks of its enemy to its policy, and the other weaker parties seek to
gather strength from both, we think it would be dangerous, indeed, to
hold that a Democrat or Republican in 1884, or even later, was
presumptively a Democrat or Republican in 1888. Particularly strong
does this reasoning apply, in our opinion, to the election of 1888. In
that election a most important issue, which had been dormant at least
for years, sprung into preeminent prominence and became at once the
shibboleth of both the Democratic and Republican parties. In many
sections former party lines were broken; Republican communities became
Democratic, and vice versa. It is a well-recognized fact that it was an
election of surprises to both parties.
But without pursuing this line of argument further, we think that the
authorities are almost uniform in support of the proposition that mere
proof that a voter was considered or reputed to belong to a particular
party is not admissible to show how he voted at an election, and
certainly not unless it appear conclusively no better evidence could
have been procured.
The majority report did not bring these principles distinctly in
issue.
The majority of the committee, in accordance with their conclusions,
found a majority of 49 votes for contestant, and reported this
resolution:
Resolved, That George W. Atkinson was duly elected a Representative
to the Fifty-first Congress from the First Congressional district of
West Virginia at the election held November 6, 1888, instead of John O.
Pendleton, and that mid George W. Atkinson is entitled to his seat as
such Representative.
The minority found a majority of 25 votes for contestant, and
reported these resolutions:
Resolved, That George W. Atkinson was not elected a Representative in
the Fifty-first Congress from the First Congressional district of West
Virginia, and is not entitled to a seat therein.
Resolved, That John O. Pendleton was duly elected a Representative in
the Fifty-first Congress from the First Congressional district of West
Virginia, and is entitled to his seat therein.
The report was debated at length on February 26 and 27, 1890,\1\ and
on the latter day the question was taken on substituting the minority
for the majority proposition, and decided in the negative, yeas 142,
nays 159. Then the resolution of the majority was agreed to, yeas 162,
nays 0, the Speaker counting a quorum.
Then Mr. Atkinson appeared and took the oath.
1022. The Arkansas election case of Featherston v. Cate, in the
Fifty-first Congress.
Forcible usurpation of county offices whereby the entire election
machinery of the county was placed in the hands of one party, in
violation of law, with subsequent fraudulent acts, constituted evidence
of a conspiracy.
A county clerk having failed to forward certain returns to State
canvassers, the House admitted a certified copy of the returns on file
as evidence of the vote.
On February 19, 1890,\2\ Mr. L. C. Houk, of Tennessee, presented the
report of the majority of the Committee on Elections in the Arkansas
case of Featherston v. Cate.
-----------------------------------------------------------------------
\1\ Record, pp. 1731, 1774-1781; Journal, pp. 283, 284.
\2\ First session Fifty-first Congress, House Report No. 306; Rowell,
p. 77.
Sec. 1022
The sitting Member had been returned by a majority of 1,348 votes
over contestant. The latter assailed this majority, alleging
conspiracy, intimidation, and fraud. The examination of the case
involved the discussion of several questions:
(1) The majority of the committee found evidence which they
considered sufficient to establish a conspiracy to defraud in
Crittenden County. Contestant was a member of a political association
known as the ``Wheel,'' and was supported not only by members of that
order, but also by the Republican party. Sitting Member admitted that
the Wheel had drawn many men from his own party--a sufficient number to
make political conditions in the district uncertain. Crittenden County
was one of the counties where contestant would naturally receive a
large vote.
It appeared from the testimony that on July 12, 1888, a mob armed
with rifles seized certain country officers and others, and drove them
out of the county, it being asserted by members of the mob at the time
that ``this is a white man's country and we will control it. We been
waiting for two years for this thing, and you got to get out.'' The
report of the committee continues:
In determining the object of a conspiracy the law is that you may
refer to the acts, words, and conduct of the conspirators to fathom and
ascertain its existence and purpose, intent, etc. It is apparent from
the evidence that a conspiracy existed and that the conspirators had
made up their minds to wrest the political control of Crittenden County
from the Republicans, who had held it for many years.
This could not be done by obtaining a majority of the votes, for it
contained a Republican majority of at least 2,000, and there was no
dissension in the party.
By examining the statutes of Arkansas in relation to elections it
will be found that the county judge, the county court clerk, and the
sheriff are important factors in conducting elections.
In the county judge is vested the appointment of all the judges of
election. The clerk creates the county board of canvassers; and the
sheriff, through his deputies, at every poll, is a power for good or
evil they can faithfully execute the law and protect the ballot box, or
they can wickedly violate the law and debauch the suffrage. That the
conspirators seized upon and obtained these offices is not denied. It
therefore becomes pertinent to inquire, as a means of ascertaining the
purpose of the conspiracy, whether the power of these offices was
exercised in accordance with the law or as a mean to aid the conspiracy
to place the county under the political control of about one-sixth of
its legal voters.
For this purpose we will now examine the laws of Arkansas relating to
elections, and after quoting the law, try to ascertain whether it was
complied with in good faith.
``How and by Whom Judges are Appointed.
``Sec. 2654. The county court, at its last term held more than thirty
days before any general election, shall appoint three discreet persons,
in each township, having the qualifications of electors, to act as
judges of election within the township.'' (Mansfield's Digest of
Arkansas.)
Under this provision the judges of election must be appointed at the
July term of the county court. It was in July the Democrats exiled the
Republican county judge, with others.
``Judges Shall be of Different Political Parties.
``Sec. 2757. The judges of election appointed by the county court, or
chosen by the assembled electors, under the provisions of this act
shall, if practicable, be from different political parties, so that
each party may be represented, and they shall, in addition to the
qualifications required by the constitution and this act, be able to
read and write.'' (Mansfield's Digest of Arkansas.)
At the time the Republican county judge was exiled he had appointed
the judges of election according to law, so that each political party
was represented.
After the exiling of the Republican judge and the office had been
seized and appropriated by the Democrats, the Democratic county judge,
who had come into possession of the office by reason of the conspiracy,
revoked these appointments and appointed all of the judges of election
from the Democratic party.
Sec. 1022
After quoting the law as to the providing of ballot boxes, poll
books, etc., the report goes on:
Instead of the county court procuring the ballot boxes, as the law
requires, the Democratic sheriff procured fraudulent ballot boxes, one
of which is produced in evidence in this case.
Instead of delivering the poll books, as required by law, for the
November election, he neglected to perform that duty, but left that
matter to the wisdom and discretion of the Democratic sheriff.
There was also evidence that the partisans of sitting Member
endeavored by corrupt means to keep their opponents from putting a
county ticket in the field. In conclusion on this point the report
says:
The lawlessness of the partisans of the contestee is fully shown;
that the title to the office of the county judge, who appointed the
judges of election of and from the Democratic party, was based on fraud
and violence; that the county clerk, whose duty it was to certify the
November vote to the secretary of state, obtained his office by the
same and like means, and that the judges of election were chosen as
agencies by and through which the frauds were to be committed and were
committed does not admit of question, or they would not have used the
fraudulent ballot box.
We have already said the evidence fully establishes the conspiracy.
The majority then proceed to consider results at several precincts in
Crittenden County.
(a) The county clerk failed to certify to the secretary of state the
votes cast for contestant in seven townships at which elections were
held, and in which, as it afterwards appeared, contestant proved a
majority of 531 votes for himself. The laws of Arkansas provided that
the clerk of the county with certain assistants should canvass the
votes, and further provided:
``Sec. 2699. Informality in the certificate of the judges and clerks
at any election held in any township shall not be good cause for
rejecting the poll books of said township.'' (Mansfield's Digest of
Arkansas.)
``penalty for failure to count the vote.
``Sec. 2701. Should any clerk of the county court and the two
accompanying justices, or householders, or either of them, under any
circumstances reject or refuse to count the vote on any poll book of
any election held by the people, such rejection or refusal by such
clerk, etc., or either of them, shall be deemed a high misdemeanor,''
etc. (Mansfield's Digest of Arkansas.)
The report goes on:
``(In Patton v. Coates, 41 Arkansas.)
``These sections being under construction, the supreme court of
Arkansas said:
`` `The board of canvassers of an election have no judicial
discretion whatever. They are merely for the purpose of a fair and
correct computation of the votes, under public surveillance, presented
to them by the clerk.' ''
In view of these sections of the Arkansas election law, and the
construction thereof by the highest court of the State, the failure of
the clerk to certify the returns of the seven townships alluded to is
simply a willful disregard of duty, but no greater than those indulged
in by the county judge and sheriff.
For the purpose of procuring the evidence in relation to the vote of
the seven townships, W. B. Eldridge, one of the attorneys of the
contestant, went to the county seat of Crittenden County and obtained a
certificate showing the returns were on file.
Sec. 1023
This certificate showed the vote of the seven townships and was
signed by the clerk. As to this return and evidence of Mr. Eldridge the
report quotes:
clerk's certificate to transcript.
State of Arkansas, County of Crittenden:
I, Saml. Keel, clerk of the circuit court, within and for the county
and State aforesaid, do hereby certify that the annexed and foregoing
pages contain a true and complete transcript of the above as therein
set forth, and as the same appears of record, in my office at Marion,
Crittenden County, Ark.
Witness my hand and official this 21st day of February, 1889.
[SEAL.]
Saml. Keel, Clerk.
---- ----, D. C.
Q. I see from the face of the clerk's certificate that there is an
assertion to the effect that the returns were not sworn to as the law
directs. Please state the circumstances under which these words were
put upon the face of the certificate.--A. It was dictated by Mr. Berry,
the lawyer of Mr. Cate in this contest, to the clerk, who wrote it word
for word at his dictation, and only gave me this abstract after mature
consultation with Mr. Cate's lawyer. (Printed Record, pp. 227-228.)
The majority report considers this vote sufficiently proven, and
ought to be allowed for contestant.
1023. The case of Featherston v. Cate, continued.
Returns being rejected for fraud, the statement of a witness who saw
a definite number of votes thrown for contestant, corroborated by
general testimony, was received as proof aliunde.
The friends of returned Member having prevented taking of testimony
for contestant, the House did not require strict and technical proof in
proving a vote aliunde.
Contestant having been prevented from proving his vote aliunde by
intimidation, the House did not reject fraudulent returns made by
partisans of contestee and giving contestant a plurality.
With no proof to show what the vote might have been, the House did
not attempt to rectify the wrong caused by failure of election officers
to open polls.
(b) The certificate of the clerk showed that in one of the seven
townships, Scanlin, Mr. Cate received 61 votes and Mr. Featherston 2.
After quoting testimony the report says:
It appears from this testimony that John Johnson saw 73 Republicans
vote the Republican ticket, and that others voted after that; and that
the Republican vote of the township was 112 or 113. E. B. Fields swears
the judges were all Democrats and that they had the fraudulent tin box.
Willis McGee swears that the judges were all Democrats, that there was
a good turn-out of the Republicans, and that there was from 100 to 125
Republicans in the township. The return shows 2 votes for contestant.
On this state of proof the question is: How many votes should be
allowed the contestant?
It was held in Bisbee v. Finley that--
``Where the evidence shows a return to be false, and not a true
statement of the votes cast, such return is impeached and destroyed as
evidence, and the true vote may be proven by calling the electors whose
names are on the poll books as voting at such poll, and no votes not
otherwise proven should be counted.''
Under this rule, and we know of no exception to it, the return must
be rejected.
The rejection of the return does not necessarily leave the votes
actually cast at a precinct uncounted. It only declares that the
returns, having been shown to be false, shall not be taken as true, and
the parties are thrown back upon such other evidence as it may be in
their power to produce in order to
Sec. 1023
show how many votes and for whom; so that the entire vote, if
sufficient pains be taken and the means are at hand, may be shown and
not a single one be lost, notwithstanding the falsity of the returns.
The contestant shows that he received 73, and perhaps more, votes,
and these, we think, should be allowed him. Deduct these from Cate's
remaining majority and the vote stands thus:
Cate's majority........ 811
Deduct the............. 73
-----
Leaving Cate's 738
majority.
The return having been overthrown, the contestee, having failed to
prove any vote in the township, is not allowed the 61 returned for him.
(c) As to Cat Island precinct the report holds:
It appears from this testimony that the Republicans turned out well;
that they did not scratch the ticket; that the fraudulent ballot box
was used; that the Republicans before the election had met and agreed
to vote their ticket at all hazards; that there were from 180 to 182
Republicans in the township; that the judges were all Democrats; that
there were not more than 14 or 15 Democrats in the township; that there
was a full vote by the Republicans; that the judges were not sworn;
that the ballot box was so placed that the voter could not see it.
The return shows 120 for Featherston and 88 for contestee, and the
question is, under the proof, what ought to be done?
The total vote cast is 208, and the proof is that there are but 15
Democrats in the township, and that the Republican did not scratch
their ticket. By giving the Democrats their full vote, Featherston
ought to have received 193 votes out of the 208, and he is returned as
receiving 120.
In view of the conduct of the partisans of the contestee in
Crittenden County whereby the contestant and his attorneys were
prevented from taking testimony and which will be referred to
hereafter, strict and technical proof will not be required.
We think the true rule was laid down in the case of Smalls v. Elliott
(session of 1888-89), by the minority of the committee, where it is
said:
``Contestee's partisan friends deliberately violate the law in
suppressing the box, and contestee himself (acting through his
counsel), by force and threat of violence, suppresses and hinders the
judicial inquiry as to the box and its contents.
``Suppressio veri--suggestio falsi. All things are presumed against
him who suppresses the truth and prevents inquiry.
``Shall contestee be permitted to take advantage of his own wrong and
of the willful and criminal violation of the law by his partisan
friends? Is the sin of the guilty to be visited on the innocent? Shall
he who suppresses the best evidence by force, fraud, and violence stand
up in the face of the court of last resort and insist that secondary
evidence shall not be produced and admitted?''
In this case, assuming the testimony to be true, and we do not doubt
but that it is true, it appears that before the election every
provision looking to a fair and honest election was violated, and that
after the election every attempt to show the true vote was suppressed
by the partisans of the contestee.
We think the proof clearly shows that the contestee could not have
received more than 15 votes in Cat Island Township, if that many.
Therefore, we give to the contestant 73 votes more than were returned
for him, and deduct 73 from the vote returned for contestee. These two
changes aggregate 146. The result would then stand thus:
Cate's majority........ 738
Deduct the............. 146
-----
Leaving Cate's 592
majority.
(d) As to Crawfordsville precinct the report holds:
It appears from this testimony that the fraudulent tin ballot box was
used; that the judges of election were all Democrats; that there was a
good turn out, the total vote polled being 395.
It was at this township the contestant went to take testimony and was
prevented from so doing by the friends of the contestee.
Sec. 1024
The nearest approximation to proof of how the vote stood in that
township is found in the testimony of E. D. Sanders (p. 200), where he
says that the vote of the Republicans is about 6 to 1 of the Democrats,
and when interrogated as to Crawfordsville he says that would not be a
fair proportion for that township, nor does he say what would be.
The return from the township shows the following:
Cate................... 88
Featherston............ 147
Barrett................ 160
-----
Total.............. 395
It does not appear from the record who Barrett is, or what party put
him in nomination, or whether there is any such man.
Had the contestant made proof of any vote received, as was done in
Scanlan and Cat Island, we would set aside the return and give him the
vote proven; but he has not done so. If we should set aside the return
it would have to be done on suspicion, or from the fact that returns
should not be regarded where the use of a fraudulent box is shown, and
that the judges of election were all of the Democratic party in a
strong Republican township. To set aside the return in a township where
the contestant has a majority, but not as great as he claims it should
be, in a case where he was prevented from making full proof of his
vote, would be to reward the fraud complained of, and punish him for
undertaking to expose it. Where there is no proof upon which we would
be justified in setting aside the return, we therefore let it stand. As
both parties have had credit for this vote, it having been certified to
the secretary of state, it makes no change in the majority.
(e) As to failure to hold elections in two precincts the report
rules:
The townships of Idlewild and Furgeson may be treated together. The
proof shows that the judges of election at Idlewild were Democrats;
that they failed to open the polls, and that the Republican majority in
the precinct usually ranged from 100 to 125. It also shows that at
Furgeson the judges of election were all Democrats; that they failed to
open the polls, and that the Republican majority in the precinct is
115; i. e., this had been the usual Republican majority.
We know of no rule by which these votes can be counted under the
state of proof as to these townships. The action of the Democratic
judges in these precincts no doubt deprived the contestant of somewhere
about 250 majority; but it is no worse, in fact not nearly so bad, as
the conduct of the judges of election in Scanlan, Cat Island, and
Crawfordsville in the use and manipulation of a fraudulent ballot box.
It is nearer on a level with the action of the county court clerk
already referred to, who willfully failed to certify the vote of seven
townships to the secretary of state. Nor is it quite as bad as the
action of the county judge who appointed such creatures of a conspiracy
as judges of election. But it does show that the conspiracy formed in
July, 1888, to control the county of Crittenden politically, with less
than one-sixth of the legal voters, was still alive and active in
November in depriving the Republicans of their votes.
1024. The election case of Featherston v. Cate, continued.
The House, in an exceptional election case, admitted ex parte
affidavits taken outside the district and State.
A question as to the making of a motion to suppress affidavits in the
record of an election case.
The House may determine the vote of a county as settled by an
agreement of the parties to the election case.
A recital of apparent facts in the notice of contestant, such as the
figures, of a returned vote, may not be construed as a concession of
the truth thereof.
Agents of contestee having intimidated contestant's witnesses, the
House did not require the best evidence for proof aliunde of the vote.
Sec. 1024
(2) An important question arose as to the competency of the testimony
taken as to Crittenden County. The report says:
There is objection to the testimony taken before Avery, a notary
public at Memphis, Tenn., which testimony we have admitted and
considered as competent in arriving at a conclusion in this case. The
ground of objection is that the contestee did not have notice of the
taking. The contestee does not deny that Berry, the person upon whom it
is claimed notice was served, was his attorney, but his claim is the
technical one that he was not his attorney for taking depositions
outside of Crittenden County. The technical character of this objection
is still more apparent when it is remembered that the record shows that
Berry was employed to take the testimony relating to Crittenden County.
It appears from the testimony objected to that contestant with his
attorneys went to Crittenden County and there met Berry, the attorney
of contestee; that before going there an understanding existed that
Berry should act as notary public to take depositions; that in the face
of this agreement he declined to so act; that a justice of the peace
was asked to take the testimony and refused; that there was danger of
violence, and threats were made calculated to produce the belief that
bloodshed would follow; that under that state of facts Berry was
notified as the attorney of contestee that the testimony in relation to
that county would be taken at No. 59 Madison street, Memphis, Tenn., at
9 o'clock, on February 25, 1889.
We think under this state of facts notice to Berry would be
sufficient, for it related to the taking of the very testimony which he
was employed to take. It will not do to say that Berry's employment
ended when contestee's partisan friends had succeeded in preventing the
taking of testimony in Crittenden County. W. B. Eldridge (pp. 226, 227)
testifies:
``Q. Did you all go with Berry, the lawyer of Cate, and did he say
anything about acting as notary public?--A. He said he would act as
notary public, which he afterwards refused to do.
``Q. Did you all take any depositions there?--A. We did not.
``Q. What was the reason for not taking depositions?--A. We could not
get a notary public; there was a magistrate there, but he refused to
act, and Mr. Berry refused, contrary to his promise and our
expectations.''
After detailing his treatment at Crawfordsville, in Crittenden
County, in response to a question he states:
``I notified L. P. Berry, the attorney of Mr. Cate, that Mr.
Featherston would take proof in Memphis, Tenn., at my office, on the
Congressional contest; and on February 24, Walsh (an attorney) and
myself both notified Mr. Berry that we would begin taking proof at 59
Madison street, Memphis, Tenn., at 9 o'clock, February 25, 1889.''
Contestee produces an ex parte affidavit from Mr. Berry, his
attorney, denying notice to take depositions at Memphis, and now asks
that these depositions be suppressed, and this request was made for the
first time after the printing of the record.
The act of Congress of March 2, 1887, provides among other things
that--
``Before the record is printed the Clerk of the House shall notify
the parties to be present at a day named at the opening of the
testimony, and of agreeing upon the parts thereof to be printed; that
the depositions shall be opened in the presence of the parties or their
attorneys, and that such portion of the testimony as the parties may
agree upon shall be printed; that in case of disagreement between the
parties, the Clerk shall decide what portion of the testimony shall be
printed.''
The intent and object of this statute is obvious. Had it been
followed the testimony now complained of might not have appeared in the
printed record. Had it been followed, the objection of the contestee,
now interposed, would have been made known and the contestant would
have been placed in a position to elect whether he deemed the testimony
of sufficient importance to make application to the committee or the
House for permission and time in which to retake it. Instead of
pursuing that course no objection to the printing of the testimony now
objected to appears to have been made. It is said that this testimony
had not been filed at the time the parties appeared before the Clerk of
the House. It does appear from the Clerk's record ``that on account of
the nonreceipt'' of certain packages of testimony for contestant he was
granted further time in which to file testimony.
It is not improbable, indeed it is probable, to say the least, that
the attention of the contestee was at that time called to the character
and contents of the testimony the contestant was thus granted leave to
file.
Sec. 1024
In the case of Lowry v. White, Fiftieth Congress, after the record
was printed, motions were filed by both parties during the
consideration of the case by the committee to exclude certain portions
of the testimony, and these motions were denied, and the attention of
the parties was called to this statute, and in the syllabus this
language is found:
``No part of the testimony submitted in a case will be suppressed
where the parties fail to take advantage of the statutory provisions
allowing parties to agree upon what portion of the record shall be
printed prior to the hearing of the case.''
In the case of a judgment by default the court will not set aside the
judgment unless the defendant can show a good defense to the action.
In the case of a decree pro confesso the decree will not be set aside
unless a meritorious defense is shown.
If the contestee had filed a motion to suppress the depositions, on
the ground he was taken by surprise, and alleged that he could disprove
the state of facts shown by them, he would stand in a much better light
than he now does. He now makes an objection which should have been made
under the act of March 2, 1887, before the record was printed. After
the record was printed he must have had knowledge of these depositions.
Had he then filed a motion to suppress them he would stand in a much
better light, but he failed to do so and does not tender any excuse now
for that failure. Had he notified the contestant, on the receipt of the
printed record, of an intention to file a motion to suppress these
depositions, if such was his intention, he would have performed a
commendable act, and would have at that time placed the contestant on
notice. Instead of doing so, however, he remained silent until after
contestant filed his brief, and then, instead of filing a motion to
suppress, contented himself until he could afterwards raise the
question of a want of notice. Instead of coming here and insisting that
he has a meritorious defense to the matters charged in relation to
Crittenden County, and asking time to establish that defense by proof,
he simply asks us to suppress the testimony taken by the contestant,
showing and tending to show fraud, violence, and intimidation, before
and at the election, and threats and danger of violence to those who
proposed to make proof of the frauds.
It appears from the testimony of Eldridge, the attorney of
contestant, that Berry, the attorney of contestee, was notified of the
time and place at which the contestant proposed to take depositions,
and it appears that a copy of the printed record was sent to the
contestee on the 15th of September, 1889.
The long silence of contestee on the question of notice, after he
received a copy of the printed record, and the neglect to exercise his
right to object before the record was printed, and no tender of proof
made to contradict what is shown by the testimony, are facts from which
the inference arises that the testimony can not be contradicted, and is
in the nature of a tacit admission of the existence of the state of
facts shown by the depositions.
We find these depositions in the printed record, and find the
contestee made no objection to them before they went there; we find
that after they had appeared in the printed record he did not file any
objection or protest with the Clerk of the House because they were
placed there; we find that after he saw them in the printed record he
failed to notify the contestant that he would object to them. Being a
lawyer of experience, and having been a judge, contestee's silence and
failure to offer more tangible defense than mere technical objections
can only be accounted for by the assumption that he has no real
defense.
In view of these facts we are of opinion that the testimony should
not be suppressed. We are not deciding that testimony may be taken
without notice, though there are authorities which, under the facts of
this case, would justify the admission of ex parte evidence. We might
quote, to sustain even this view, from Bisbee v. Finley, Buchanan v.
Manning, and Thoebe v. Carlisle et al., but as we do not decide on the
question of ex parte evidence, in the admission of the depositions in
this case, it is unnecessary.
Under the broad provisions of the Constitution, making each House of
Congress ``the judge of the elections, returns, and qualifications of
its own Members,'' it would seem that we are not bound by the strict
rules of evidence known to the ``common law.'' But we are not deciding
that question. What we are deciding is, that where depositions are
found in the printed record, or where they appear in the printed
record, and no objection is made to the Clerk of the House or to the
opposite party, the party failing to object at the earliest
opportunity, or at least within reasonable time, so as to put the
opposite party on notice, will be deemed to have waived all question of
notice, especially where there is no offer of proof to show a different
state of facts than those shown by the depositions.
Sec. 1024
The minority views, submitted by Mr. J. H. Outhwaite, of Ohio, oppose
this view:
We shall now discuss the question whether testimony taken as this was
should be considered by the House, and weigh it for its worth. As we
have repeated, it was taken without notice and in violation of law.
Act of March 2, 1875 (Laws 2, 43, p. 338): It is provided that the
party desiring to take depositions under the provisions of this act
shall give the opposite party notice in writing of the time and place
when and where the same will be taken; of the name of the witness to be
taken, and their places [his place] of residence, and of the name of
the officer before whom the same will be taken.
To pretend not to evade these requirements of the law W. B. Eldridge
says in his deposition:
``I notified L. P. Berry, the attorney of Mr. Cate, that Featherston
would take proof in Memphis, Tenn., at my office on February 24, 1889.
Walsh and myself both notified Berry that we would begin taking proof
at 59 Madison street, Memphis, Tenn., February 25, 1889.''
We here introduce the affidavit of Mr. Berry, which flatly
contradicts Mr. Eldridge upon this point:
State of Arkansas, County of Crittenden:
I, L. P. Berry, an attorney at law, resident at Marion, Crittenden
County, Ark., being sworn, do state that I have before me a printed
copy of the evidence in the case of L. P. Featherston v. W. R. Cate in
the contest for a seat in the Fifty-first Congress of the United States
from the first district of Arkansas, wherein it appears, on page 227 of
said printed record, that one W. B. Eldridge states or testifies as
follows: ``I notified Mr. L. P. Berry, the attorney of Mr. Cate, that
Mr. Featherston would take proof at Memphis, Tenn., at my office on the
Congressional contest; on February 23 Mr. Henry Walsh and myself both
notified Mr. Berry that we would begin taking proof at 59 Madison
street, Memphis, Tenn., at 9 o'clock on February 23, 1889,'' and I
further state that this statement is untrue and without any foundation
in fact; that Mr. Eldridge and Mr. Walsh did not give me any such
notice, nor either of them, as he states, and I never knew of evidence
relating to Crittenden County until I saw it printed in the record, nor
do I to this day know at what place said supposed evidence was taken.
I further state that I was only authorized to act for Mr. Cate as his
attorney in said county so far as related to taking proof in Crittenden
County, Ark., and had no authority to represent him or take proof
elsewhere, or accept, receive, or waive any notice relative to taking
proof elsewhere.
L. P. Berry.
Sworn to and subscribed before me this January 10, 1890.
[seal.]
Sam'l Keel, Clerk.
By O. M. Tufts, D. C.
If, however there were no questions of the truthfulness of Mr.
Featherston's lawyer, it is clear that the notice could not have been
in writing giving contestee the material facts concerning the witnesses
to be examined. It was a plain violation of the law in that respect for
some covert reason.
``The officer shall cause the testimony of the witnesses, together
with the questions proposed by the parties or their agents, to be
reduced to writing in his presence and in the presence of the parties
or their agents, if attending, and to be duly attested by the witnesses
respectively.'' (Rev. Stat., sec 122.)
The certificate of the notary, E. M. Avery (p. 185 of the record),
shows that this provision of law was violated. Although he attempts to
give the impression that the words of the witnesses were reduced to
writing by typewriter and submitted to witnesses and attested by them,
he says the shorthand reporter's notes are herewith transmitted, etc.
The performances with the witnesses he said occurred in February and
early in March. His certificate is dated July 13, and upon the original
papers on file in the committee room the names are all signed by
typewriter, even of those who are represented as signing their own
names, except Eldridge's and one other's.
``All officers taking testimony to be used in a contested election
case, whether by deposition or otherwise, shall, when the taking of the
same is completed and without unnecessary delay, certify and carefully
seal and immediately forward the same by mail or express to the Clerk
of the House of Representatives.'' (Act approved Mar. 2, 1887.)
This provision of the law is also disregarded. What good reason can
be given for this unlawful course? In this case the legal time for
taking testimony closed April 15. As required by statute the Clerk of
the House of Representatives notified parties that they should appear
before him June 28 for
Sec. 1024
the purpose of being present at the opening of the sealed packages of
testimony and of agreeing upon the parts thereof to be printed. They
came here. Only part of the depositions were in the hands of the Clerk.
None of those taken in Memphis were on file.
Contestant asked for further time, which was granted, and contestee
remained here waiting until July 7; but these papers were not filed. On
July 21 they were at last filed. Contestee never saw them or learned
their contents until a printed copy of them reached his hands late in
September. The contestant and his attorneys have never attempted any
explanation or offered any excuse for this extraordinary, suspicious,
and illegal delay. The contestee was without any opportunity to be
present and see and hear these witnesses while they were telling their
tales or to cross-examine them or to bring proof subsequently to
explain or contradict their statements. Their record is full of the
abuses which occurred under such circumstances.
(3) In four other counties of the district, Phillips, Cross, St.
Francis, and Lee, certain questions arose, some like those already
discussed and others different.
(a) The report says:
There is an agreement in the record as to the vote of Phillips
County, whereby it is agreed that the contestant is to have 57 more
votes than were returned for him, and that the contestee is to have 57
votes stricken from his returned vote, and that the contestant is to be
credited with a majority of 18 in Hickory Ridge Township. These numbers
added together make 132, which should be deducted from Cate's majority.
(b) As to Independence, in Lee County, this question is set forth in
the report:
Here, then, is a case where we have 239 votes not counted for anyone
for Congress, and this, too, in the face of testimony of witnesses
saying the Republicans turned out well and were in the majority and
voting the party ticket.
The contestee claims that the contestant has admitted that he
received 224 votes in Independence Township and can not now invoke the
protection of that rule where the return is overthrown and the parties
put to proof.
The view we take of the matter renders it unnecessary to pass upon
the question of estoppel.
What is claimed as a concession by the contestant, that the contestee
received 224 votes in this township, is contained in the notice of
contest on page 7, as follows:
``That at the precinct of Independence, in the county of Lee, in said
district, at an election held on the 6th day of November, 1888, I
received 397 votes and you received 224 votes; that the election
officers of said township, who are partisans of yours, through fraud or
mistake, returned that I received 89 votes, and that you received 224;
that the votes as thus returned by the election officers of said
township were by the county clerk of said county certified to the
secretary of state, and by him laid before the governor of said State,
and by him counted in determining the number of votes cast for each of
us for Representative in said district. I shall therefore claim on
contest that I be allowed 308 more votes than were returned and
certified for me from said township.''
This is not a concession that contestee received 224 legal votes, but
is in the nature of a recital of the state of facts which he would be
able to establish by proof.
This was at the inception of the contest, when contestant may not
have had full information.
But be that as it may the recitals in the notice can have none of the
sanctity and binding force of an agreement or stipulation and can not
be construed into a concession.
The contestee did not treat this statement as a concession that he
received 224 votes, but on the contrary he filed the following answer:
``As to the precinct of Independence, in the county of Lee, I deny
all the charges of fraud and mistake, and say that the votes were
correctly counted, returned, and certified. I deny that you received
397 votes, but you received 89 votes, and I received 244 votes in said
precinct or township.'' (Record, p. 17.)
Instead of the record making a stipulation or concession that
contestee had received 224 legal votes, the number of legal votes was
not admitted by contestant, nor was the alleged concession accepted as
such by the contestee in lieu of evidence, but he set up a claim to 244
votes instead of 224, which he now claims as having been conceded.
Sec. 1025
(c) Also the report rules as to testimony:
Only one witness was examined in Independence Township. The witness
giving the testimony on leaving the stand was arrested for perjury and
placed under $1,000 bond to answer to the State court. The attorney for
contestee from that time on proclaimed he would cause the arrest of all
persons who testified for contestant if he thought they testified
falsely.
After that time testimony was taken in relation to that township
outside of the county.
The conduct of the contestee's attorney could have but one object and
effect, and that was to intimidate other witnesses. There is direct
testimony from one witness, and no attempt was made to impeach him,
showing that 92 votes went into the box for the contestant. The returns
show 89 for Featherston and 224 for the contestee. There is enough
evidence to impeach the return and put the parties to proof. The
friends of the contestee in Independence Township, like his friends in
Crittenden County, prevented fall proof being made, and can not
complain if we apply the rule as to Independence Township that was
applied to Scanlan and Cat Island, which we do. Full proof of the vote
was not allowed to be made, and in such a case he who prevented it
should suffer, if any one.
We have no hesitation in adopting this rule in relation to this
township, because the contestee knew of the proof made by the
contestant. He could have taken proof and shown his true vote. He
elected to rely on intimidation of contestant's witnesses, and must
abide the consequences of his election. He was at liberty to have shown
that 319 of the persons voting at that election did not vote for either
candidate for Congress, and thus have explained why it was that the
contestant ran behind the Republican electors, but he has not done so.
The result is, that the contestee must lose 224 votes returned for
him, and the contestant must be allowed 3 more votes than were returned
for him.
In accordance with their reasonings, the majority found that the
contestant was elected by a majority of 86 votes, and reported these
resolutions:
Resolved, That W. H. Cate was not elected as a Representative to the
Fifty-first Congress from the First Congressional district of the State
of Arkansas, and is not entitled to the seat.
Resolved, That L. P. Featherston was duly elected as a Representative
from the First Congressional district of the State of Arkansa to the
Fifty-first Congress, and is entitled to his seat as such.
The minority considered that sitting Member was entitled to a
majority of 595, and recommended resolutions confirming his title to
the seat.
The report was debated at length on March 1, 3, 4, and 5,\1\ and on
the latter day the question was first taken on substituting the
proposition of the minority declaring contestant not elected, and this
was disagreed to, yeas 138, nays 144.
Then a motion to recommit with instructions that an investigation
should be made in the district as to the elections was disagreed to,
yeas 138, nays 147.
The question then recurred on the first resolution proposed by the
majority, and it was agreed to, yeas 147, nays 138.
Then the second resolution was agreed to, yeas 145, nays 135.
Thereupon Mr. Featherston appeared and took the oath.
1025. The Alabama election case of Threet v. Clarke, in the Fifty-
first Congress.
Evidence of a conspiracy of election officers to defraud may not be
sustained by contradicted testimony of two or more persons who declare
they saw more votes cast for contestant than were returned.
Voters being prevented by no fault of their own from obtaining the
registration certificates required for voting, the House counted the
votes as if cast.
-----------------------------------------------------------------------
\1\ Record, pp. 1843, 1888, 1907, 1943-1955; Journal, pp. 306-308.
Sec. 1025
The illiteracy of election officers having prevented the
ascertainment of any substantiated return, the House rejected the poll.
Failure to give party representation on election boards, when the
same is required by law and practicable, is evidence of conspiracy to
defraud.
Although there may be evidence establishing a conspiracy to defraud,
it is still necessary to show effects in order to change the result.
On February 21, 1890,\1\ Mr. Nils P. Haugen, of Wisconsin, from the
Committee on Elections, submitted the report of the majority of the
committee in the Alabama case of Threet v. Clarke.
The report, after giving the table of the votes, says:
A plurality for contestee of 4,488 on the face of the returns. This
plurality the contestant contends was obtained by systematic frauds on
the part of the inspectors and clerks of election in counting votes in
fact cast for contestant as having been cast for contestee in a number
of precincts, large enough to have elected him (contestant) had the
returns been honestly made. The contestant in his brief describes the
method pursued by his party friends at the polls, and the evidence he
relies upon to establish the charges of conspiracy to defraud him as
follows:
``At every beat or voting precinct two or more leading Republicans
would give out the Republican ballots to their Republican friends, and
two or more trusted Republicans would watch and witness that they were
voted; each kept an accurate account of the number of tickets he gave
out and the number he saw voted. The contestant put these witnesses on
the stand to prove these facts, and the vote proven was almost in the
inverse ratio of the vote as counted by the precinct officers.
``Such is the status of the present contest and mainly the character
of the testimony of the contestant.''
The charges of contestant are confined to the four counties of
Choctaw, Clarke, Marengo, and Monroe, and only to those precincts in
said four counties hereinafter discussed.
It appears upon examination of the evidence that the contestant
hasstrictly confined himself to the method of proof described in his
brief.
The majority review the testimony taken after the above-described
method, and while admitting that standing alone and uncontradicted it
would overcome the prima facie character of the returns, yet is not
sufficient to overturn the return when rebutted by testimony showing
that the proceedings were fair and legal.
The report says:
If the results at all these polls were, as alleged by contestant,
tainted by fraud and corruption to such an extent that the polls should
be excluded, he has failed, in the opinion of your committee, to
exercise that diligence which the law asks of every suitor before
granting him the relief prayed for. Bearing in mind that the character
and tendency of the proof is very similar in all these precincts, the
contestant might reasonably have been expected to have, at least, in
one or few of them, called in the body of the voters of the precinct
and established his claim of fraud, if fraud existed, beyond question.
He does not even pretend to have made an effort to do so in this
contest, but tries to excuse his want of effort in this respect
because, as he alleges, in some previous contest that course had
failed.
To quote from his brief:
``To call the voters themselves was the best and surest means of
successfully proving that the count was fraudulent. When this was
attempted by the contestant the contestee would cross-examine each
witness for three days, and in some instances a whole week, asking the
witness all about the Bible and the history of the world from Adam
down. (See testimony in the contest of McDuffie v. Davidson, Fiftieth
Congress.) The object of this proceeding was to consume time, and as
the contestant only had forty days allowed by law in which to take
testimony in chief, it can be readily seen how difficult, if not
impossible, it was to secure sufficient proof from the voters to
establish the fraud, as only a few could be examined by reason of the
obstructive tactics of the contestee.''
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 363; Rowell,
p. 175.
Sec. 1025
It is only fair to the contestee to say that the evidence fails to
disclose that any of the obstructive methods mentioned in contestant's
brief were resorted to by him, and he can not be held responsible for
the sins of his predecessors. A close examination of the record bears
evidence that the taking of testimony was conducted in a very leisurely
manner on the part of contestant, and that, although the number of his
witnesses is relatively small, his side of the case was not closed
until the middle of March.
In Jefferson beat he calls 3 witnesses to prove the alleged frauds;
contestee calls 13 to prove the honesty and fairness of the election.
So in Linden, contestant calls 2 witnesses, contestee 12; in Macon,
contestant 2, contestee 5; McKinley, contestant 4, contestee 3; Nixon's
Store, contestant 2, contestee 3; Spring Hill, contestant 2, contestee
8; Shiloh, contestant 3, contestee 11.
In Choctaw County the majority of the committee decided to count
certain votes tendered but not received at Mount Sterling beat:
The contestant charges that at this precinct he was deprived of 59
votes for the reason that the regularly appointed registrar refused to
issue to that number of Republican voters proper certificates of their
registration. It seems to be conceded by witnesses for contestee that
59 voters with tickets having the name of contestant upon them appeared
and offered to vote, but were refused because they could not furnish
certificates of registration, the registrar about 10 o'clock a.m.
refusing to issue further certificates, stating that he was out of
blanks, and shortly afterwards being called away; that several hours
intervened before the inspectors offered to appoint another registrar,
which they finally did, failing, however, to find any person willing to
serve.
It is not charged that the registrar acted fraudulently in refusing
to continue to issue certificates. His supply of blanks seems to have
been exhausted, and he was called away to attend the sick bed of his
father-in-law, who, in fact, died a few days later. The probate judge
of the county, who was present according to his own testimony, between
3 and 4 o'clock p.m., with the consent of the inspectors, offered to
swear, orally, those who had previously voted in the precinct, and the
inspectors offered to receive the votes of those so sworn.
But there is no evidence showing how many of the 59 voters yet
remained at the polls or how many of them, being legal voters, had
previously voted at the precinct.
Section 2007, Revised Statutes of the United States, reads as
follows:
``Whenever under the constitution or laws of any State, or the laws
of any Territory, any act is required to be done by a citizen as a
prerequisite to qualify or entitle him to vote, the offer of such
citizen to perform the act required to be done, shall, if it fail to be
carried into execution, by reason of the wrongful act or omission of
the person or officer charged with the duty of receiving or permitting
such performance, or offer to perform or acting thereon, be deemed and
held as a performance in law of such act; and the person so offering
and failing to vote, and being otherwise qualified, shall be entitled
to vote in the same manner and to the same extent as if he had in fact
performed such act.''
Under this law the 59 votes at the precinct under discussion must be
counted for contestant.
In Clarke County the majority rejected the poll of Gainesville
precinct:
The returning officer was the only officer of election who appeared
at the opening of the poles on the day of election.
He proceeded, at the instance of contestant's friends, to appoint
three inspectors, who were chosen from the colored party friends of
contestant. These appointed two clerks.
This was in pursuance of section 262, Code of Alabama, 1876. Two of
these inspectors and one of the clerks testify on behalf of contestant,
and from their testimony it appears that the election proceeded quietly
until about 3 o'clock p.m., when during a lull in the voting and
following a seemingly well-established custom in that precinct the
election officers opened the ballot box and proceeded to count the
votes cast. It then transpired that none of the inspectors could read
the ballots. This broke up the election and the ballot box was carried
off by the returning officer, seemingly without protest or objection.
One of the inspectors swears that 179 votes had been cast at the time
the balloting was interrupted. His testimony also tends to show that 4
of these were white men and the rest colored. There is no evidence
showing how these parties voted.
The voters were not called as witnesses, and no effort has been made
to ascertain how the votes actually cast stood, and the committee can
find no precedent for counting the 175 votes claimed by
Sec. 1026
contestant for him. If these votes were cast for him, he has failed to
show it, and the failure to have the true result declared was caused by
no fault or fraud of contestee or his party friends, unless the failure
of the regularly appointed inspectors of election to act be considered
a fraud, but was occasioned wholly by the illiteracy of the party
friends of contestant.
There can be no effective citizenship that is not based upon
intelligence and education sufficient to take part in the active
administration of the laws.
As to Monroe County the report says:
Section 259, Code of Alabama, provides:
``Sec. 259. Inspectors and precinct returning officers, how
appointed.--The judge of probate, sheriff, clerk of the circuit court,
or any two of them, must, at least thirty days before the holding of
any election in their county, appoint three inspectors for each place
of voting, two of which shall be members of opposing political parties,
if practicable, and one returning officer for each precinct to act at
the place of holding elections in each precinct; and it shall be the
duty of the sheriff to notify such inspectors and returning officers of
their appointment within ten days after such appointment.''
The testimony of Anthony R. Davison, chairman of the Republican
executive committee of Monroe County, is to the effect that he prepared
lists of inspectors in the various precincts, one for each precinct who
could read and write, and who were reputed to be good Republicans, and
gave the list to the sheriff, and requested the board to appoint them.
They were not appointed, but men were appointed in lieu of them who
could not read and write, or were not Republicans, but they were all
colored men, and some of them had been recognized by Republicans as
being colored Democrats for years.
The majority of the committee hold that such conduct on the part of
the appointing power ``ought of itself to be considered evidence of
conspiracy to defraud on the part of the election officers.'' But the
contestant only took evidence as to two precincts in the county.
And as to the district, the contestant failed to show that the number
of votes counted for contestee illegally or as the result of such
frauds was sufficient to change the result of the election.
Therefore the majority reported the following resolution:
Resolved, That Richard H. Clarke was duly elected a Representative to
the Fifty-first Congress of the United States from the First
Congressional district of Alabama at an election held November 6, 1888,
and is entitled to a seat therein, and that Frank H. Threet was not
elected a Representative at said election.
The minority views, presented by Mr. Charles F. Crisp, of Georgia,
concurred in the recommendation of the report, but did not agree to the
reasoning.
On March 7, 1890,\1\ the resolution was agreed to by the House
without debate or division.
1026. The Virginia election case of Waddill, jr., v. Wise, in the
Fifty-first Congress.
The House decided that the votes of duly qualified voters, in line
and ready to vote but fraudulently prevented, should be counted as if
cast.
Votes received at an outside poll by a United States commissioner and
confirmed by evidence of the voters themselves were counted by the
House.
Discussion as to what constitutes a tender or offer to vote.
On March 31, 1890,\2\ Mr. John F. Lacey, of Iowa, from the Committee
on
-----------------------------------------------------------------------
\1\ Record, p. 2007; Journal, p. 315.
\2\ First session Fifty-first Congress, House Report No. 1182;
Rowell, p. 205.
Sec. 1026
Elections, submitted from the majority of that committee the report in
the Virginia case of Waddill, jr., v. Wise.
The sitting Member had been returned by an official majority of 261
votes.
The report states the issue involved:
The pivotal question in the case is as to whether certain votes in
Jackson ward, in the city of Richmond, shall be counted. If these
votes, or such of them as are clearly shown, should be counted for the
contestant the contestant is entitled to the seat, but if the votes in
question are not counted the contestant is not elected.
It is claimed by contestant that in Jackson ward 722 legal voters
were wrongfully prevented from voting; that these voters were lawfully
registered and qualified electors; that they presented themselves in
line on the day of the election prepared to take their turns in voting,
and had in their hands, ready to deposit, ballots properly prepared to
cast for the contestant for Member of Congress.
That the partisans and friends of the contestee hindered and
obstructed these voters by making frivolous challenges of lawful
voters, and that the judges of the election colluded with and aided the
challengers in delaying the casting of the ballots by entertaining such
challenges, by consuming unnecessary time in hearing and taking action
upon them, and by making needless explanations to the voters as to the
effect of certain, constitutional amendments which were being voted on
at the election; that by needless and fraudulent delays in receiving
and depositing the ballots, these 722 voters were prevented from
casting their votes for contestant. Contestant further claims that 557
of said voters thus prevented from voting remained in line at the time
of the closing of the polls, and that thereupon United States
commissioners prepared ballot boxes and received the ballots of such
voters and deposited the same in the boxes and preserved the same,
which ballots were in evidence before the committee.
The votes thus in controversy are confined to three precincts of
Jackson ward. Of these voters 457 were examined as witnesses.
The evidence clearly shows that from 457 to 722 legal voters
ineffectually attempted to cast their ballots for the contestant in
Jackson ward. It will not be necessary to discuss the evidence as to
the exact number, for if this class of votes is to be counted for
contestant he would be entitled to his seat upon the smallest number
that the evidence could be fairly held to show. We are of the opinion
that at the least 457 of such votes are clearly shown, which is more
than sufficient to overcome the majority of 261 returned for contestee.
The report goes on to quote testimony to show that the delay in the
voting was in pursuance of a conspiracy entered into by the party
friends of sitting Member, saying:
The plan complained of by Mr. Duncan was carried out fully by
adherents of the contestee and resulted in the exclusion of more than
enough votes for contestant to change the result. The object of the
persons engaged in this mode of disfranchisement clearly appears when
it is known that out of all the great number of voters who were
prevented from voting none of them belonged to the political party of
the contestee.
The voters were divided into two lines, white and colored, and the
great majority of the voters were colored.
The colored voters and white voters took equal turns in voting. The
white voters resident in the first precinct were 132 and colored 883;
third precinct, white voters, 254, colored, 797; fourth precinct, white
voters, 392, colored, 692. See record, 1635. By voting alternately the
white voters were all enabled to cast their votes, leaving the excluded
voters at the rear end of the long colored line.
The minority views, presented by Mr. Charles F. Crisp, of Georgia,
conceded that voters were prevented from voting, although denying that
there was any conspiracy or improper conduct on the part of the
officers of election. The principal issue was as to the treatment of
such a case.
Sec. 1026
The majority believed that contestant should be seated:
It has been held in New York, Alabama, and California that a vote
lawfully tendered and not received should not be counted, but if the
result was changed thereby that a new election should be ordered. (See
State v. Judge, 13 Ala., 805; Hartt v. Harvey, 19 Howard's Practice, N.
Y., 245; Webster v. Byrnes, 34 Cal., 273.)
But this rule we think is not founded in reason and is against the
weight of authority. It was seemingly though not directly sanctioned in
the Nineteenth Congress in case of Biddle v. Wing, Clarke and Hall,
504.
The Revised Statutes of the United States, section 2007, provides:
``That whenever, by or under the authority of the constitution or
laws of any State or the laws of any Territory, any act is, or shall
be, required to be done by any citizen as a prerequisite to qualify or
entitle him to vote, the offer of any such citizen to perform the act
required to be done as aforesaid shall, if it fail to be carried into
execution by reason of the wrongful act or omission of the person or
officer charged with the duty of receiving or permitting such
performance or offer to perform or acting thereon, be deemed and held
as a performance in law of such act, and the person so offering and
failing as aforesaid, and being otherwise qualified, shall be entitled
to vote in the same manner and to the same extent as if he had
performed such act.''
The offer to perform the prerequisites to the right to vote is by
this statute made equivalent to a performance of the act itself, where
the wrongful act or omission of an officer prevents carrying such offer
into execution.
This carries the doctrine of tender back one step further, and makes
a tender of registration or other prerequisite sufficient to entitle
the citizen to the right to vote. The doctrine that such votes should
be counted is strengthened by this statute.
If the voter, in the language of the statute, ``shall be entitled to
vote,'' the right would be a very barren one if the vote tendered and
refused could not be counted.
``So far as Congressional elections are concerned, the offer by a
voter otherwise legally qualified to perform any act which is a
prerequisite to voting will be in law a performance of the act.''
(Paine on Elections, p. 519.)
This House has uniformly, since the Nineteenth Congress, recognized
the rule that a legal vote lawfully tendered and unlawfully rejected
shall be counted and given the same force and effect as if actually
cast. Whatever the rule may be in any of the States of the Union this
principle is well settled as a rule of Congress.
The report then cites various Congressional cases, and the rule in
England (Heywood, 5 ed., 500), and continues:
But it is claimed by a minority of the committee that under the facts
of the present case there has been no such an offer to vote on the part
of the several hundred voters as would entitle them to have their votes
counted. This brings us to the discussion of what constitutes a tender
or offer to vote.
It is eminently proper in approaching the polls where there are a
large number of voters that the voters should form a line and take
their orderly turns in voting. To prevent any race troubles it is not
unusual in many places to form two lines, one white and one colored,
approaching the polls in their order and casting their ballots in
regular turns or rotation.
Is the ability to reach the window and actually tender the ticket to
the judges essential in all cases to constitute a good offer to vote? A
voter, who is at the polling place in due time, and has taken his place
in line, ticket in hand, offering to vote, and by the wrong of the
judges is prevented from reaching the window, surely has as much right
on principle to have his vote counted as the voter who happens to be
further up in the line and actually reaches the window and is there
refused.
From the time the voter reaches the voting place and takes his
position in line to secure his orderly turn in voting the elector has
commenced the act of voting. It is a continuous act, and if by the
wrongful act of fraudulent challenges unduly prolonged by the
connivance and collusion of the judges of the election the voter is
deprived of the opportunity to vote we think that the interest of our
form of government and the purity of elections demand that the vote
should be counted. If the fraudulent exclusion of votes would, if
successful, secure to the party of the wrongdoer a temporary seat in
Congress, and
Sec. 1026
the only penalty for detection in the wrong would be merely a new
election, giving another chance for the exercise of similar tactics,
such practices would be at a great premium and an election indefinitely
prevented. But if where such acts are done the votes are counted upon
clear proof aliunde, the wrong is at once corrected in this House and
no encouragement is given to such dangerous and disgraceful methods.
Where an illegal vote is tendered and cast it is universally conceded
that it should be excluded in a contest, and the result declared the
same as if such vote had not been cast.
It is clear upon principle that where a legal vote is offered and
excluded it should be counted upon furnishing proof as satisfactory as
that upon which an unlawful vote is eliminated from the count. There is
no more difficulty or uncertainty in the proof in the one case than in
the other. We are not disposed in the present case to treat the deposit
of the votes in the box of the United States commissioners as a casting
of the ballots. But such fact is strong corroborating evidence and is
entitled to weight in determining the purpose of the voters, and is
further of value in preserving the ballots which the voters say they
actually intended to have cast. These ballots were at once deposited in
a safe receptacle and preserved until they were delivered into the
custody of the House. Over 400 of the voters testified to the deposit
of these ballots, and that they were the same ballots which they were
prevented from casting.
If a number of persons desirous of making a tender of money at a bank
should form in line during banking hours, with their money in hand, and
the officers of the bank should purposely delay the transaction of
business in such a way as to prevent a large number of the persons
desiring to make the tender from reaching the receiving teller's window
during banking hours, there would be no question, we apprehend, but
that this would be a good tender of money. In the present instance the
voters in depositing their tickets in a separate box in the custody of
a United States commissioner were attempting to carry the analogy
further by making their tender good.
The voter who was standing at the window, ticket in hand, and
offering it at sundown when the window was closed in his face, had done
no more to have his vote cast than the next man in the line or the
other voters standing ready to the extreme rear of the line. They were
all doing their best to exercise their constitutional rights.
It is the duty of the judges to afford every reasonable facility to
the voters in casting their ballots. We think that all these votes were
tendered or offered within the fair and reasonable meaning of the law
and that they should be counted, and that the action of the judges in
delaying the election was equivalent in law to a refusal to receive the
ballots.
We therefore recommend the passage of the following resolution:
Resolved, That George D. Wise was not elected as a Member of the
Fifty-first Congress from the Third district of Virginia and is not
entitled to a seat therein.
Resolved, That Edmund Waddill, jr., was elected as a Member of
Congress from the Third district of Virginia and is entitled to a seat
therein.
The minority views contend:
The court of appeals of New York in Hartt v. Harvey (19 Howard Pr.
Reports, p. 252), had before it the express question whether a vote not
cast could be counted for the candidate for whom the voter intended or
desired to vote, and uses the following language:
``The result of the election must be determined by the vote cast. If
illegal votes can be ascertained they may be rejected; but votes not
received can never be made available in favor of either party.''
The supreme court of California in passing upon the same question, in
Webster v. Byrnes (34 Cal., p. 276) say:
``The court below erred in counting for contestant the supposed votes
of Gonsalves, Larkin, and Haas, under the pretense that they would have
voted for him had they been allowed to vote. In all contests of this
character the question is, Which candidate received the highest number
of legal votes? The idea that the supposed votes of persons who did not
vote, but who could have voted had they taken the necessary legal steps
to entitle them to do so, should be counted for the candidate for whom
they would have voted, is simply preposterous.''
The supreme court of Alabama in the case of the State ex rel. Spence
v. The Judge of the Ninth Judicial Circuit (13 Ala., p. 811) say:
``Smoot offered to vote at the election, but his vote was not
received, and he would have voted for Spence. * * * It is perhaps
unnecessary to inquire whether the managers should have permitted Smoot
to vote or not, for he did not vote, and even if his vote could have
had any influence in changing
1026
the result of the election, as in fact it was not given, it could only
have authorized the circuit judge to have declared the election void,
but could not authorize him to count it as actually given to Spence.''
To the same effect see Newcum v. Kirtley, supreme court of Kentucky,
reported in 13 B. Munroe, page 515.
It will thus be seen that the highest courts in the States of New
York, California, Alabama, and Kentucky have held that even though a
legal voter should tender his ballot to the managers of the election,
and they should reject the same, yet such vote could never be counted
for either party. The fact that the vote was illegally rejected, and
that the voter declared under oath for whom he intended and desired to
vote would not authorize the tribunal that must ``judge'' of the
election to count such vote, the election must be determined by the
votes actually cast; and if it appear that a sufficient number of votes
to change the result were unlawfully or improperly rejected, the effect
would be to render the election void. The undersigned have not had
their attention called to, nor are they aware of any decision of any
court in any of the States, or of the United States, which establishes
or maintains any other or different rule from that here laid down.
After discussing the Congressional cases the minority continue:
The act of Congress referred to in the report of the committee refers
only to qualification of voters and not to the act of voting. The
citations from McCrary and Paine on elections, referred to in the
report of the committee, are based upon the decisions of the House
herein reviewed, and as we have shown are not sustained by any of the
cases referred to except Niblack v. Walls, which is a departure from
and contrary to the established rule and which stands alone,
unsupported, so far as we have been able to learn, by a decision of any
court or of any legislative body in this country.
It seems to us that the rule contended for by the majority in this
case would open wide the door for fraud and invite false swearing,
which the opposing party would have no means of refuting. To hold that
anything short of an actual tender of the ballot to the election
officers and a rejection by them was an offer to vote would be a most
dangerous and uncertain rule, and one to which we can not give our
sanction. Where the evidence plainly establishes the fact that a legal
voter offers his ballot to the election officers and they unlawfully
reject the same, under the precedents heretofore established such vote
may be counted for the candidate for whom the voter offered to vote.
Conceding for the purpose of the argument all that is claimed by the
contestant in this case, to wit, that by fraud and intentional
hindrance and delay a large number of voters who intended to vote for
him were unable to reach the poll to tender their ballots, although
they used diligence; that when the polls closed a large number of
voters present on the ground desiring to vote for him had for such
reasons been unable to do so, and that thus a sufficient number of
voters were prevented from voting to have changed the result had they
succeeded in voting; still, inasmuch as there was no actual tender of
their votes and rejection thereof by the election officers, such votes
can not be counted for contestant; they have not been offered and
rejected, and the most that can be claimed under this assumed state of
facts is that there has been no fair and full election within the
meaning of the law, and that neither party shall be adjudged entitled
to the seat.
In the case before us we have before said we do not believe there was
any considerable obstruction of the voters in their right to vote; but
it appears that at the time the polls were closed at three precincts of
Jackson Ward there were a number of voters present at each polling
place desiring and intending to vote who were prevented from doing so
through no fault of their own, and it is possible that such voters were
sufficient in number to have changed the result had they all voted for
the contestant. Under these circumstances we have been somewhat
embarrassed to determine what recommendation we should make to the
House. As we have shown, under such a state of facts, the courts
determine the result by the vote actually cast. The enforcement of that
rule in this case would give the seat to the sitting Member.
But we are not satisfied of the justice of such rule. While it is
true that neither the contestee nor his partisans can justly be held
responsible for the failure of any of the voters to exercise their
right of suffrage, yet we believe that some were deprived of the
opportunity to vote and that the number might have been sufficient to
change the result, and so believing, in the interest of fair play and
complete justice, we are not inclined to hold the contestant
responsible for the inefficiency of the Republican judge or the conduct
of the Republican Federal supervisors, but are of the opinion that the
ends of justice will be subserved by remitting the election to the
people of the district, who can, unembarrassed
Sec. 1027
by the constitutional convention question, freely declare their choice,
and we therefore submit the following resolution:
Resolved, That the seat now held by George D. Wise as the
Representative in the Fifty-first Congress from the Third Congressional
district of Virginia, be, and the same is hereby, declared vacant.
The report was debated at length on April 11 and 12,\1\ and on the
latter day the question was taken on a motion to substitute the
minority proposition for that of the majority. This was negatived, yeas
119, nays 133.
Then the first resolution of the majority, unseating Mr. Wise, was
agreed to without division.
The second resolution, seating contestant, was agreed to, yeas 134,
nays 120.
Mr. Waddill thereupon appeared and took the oath.
1027. The Virginia election case of Bowen v. Buchanan in the Fifty-
first Congress.
The existence of a corruption fund and the use of it, even by county
officers, does not vitiate an election beyond the actual votes shown to
be affected.
Returns will not be rejected because returning officers informally
make a necessary correction after they have formally made them up.
Temporary absence of the election judges, the voting being left under
charge of honest election clerks, did not vitiate the poll.
Only preponderating testimony that there was no fraud saved from
rejection a poll whereat the election officers adjourned for dinner and
removed the ballot box illegally.
On April 3, 1890,\2\ Mr. J. H. Rowell, of Illinois, submitted the
report of the majority of the Committee on Elections in the Virginia
case of Bowen v. Buchanan.
Sitting Member had been returned by a majority of 478 votes.
In reaching a conclusion the report discusses several questions:
(1) As to bribery, the report says:
In Russell County the existence of a corruption fund and a
willingness to use it are clearly established. Several votes were
purchased and attempts were made to purchase others. Enough appears to
arouse suspicion that more votes were purchased than the evidence
discloses. The committee, however, can only deal with the facts
established by the evidence, however strongly they may suspect the
existence of more extensive corruption than appears.
The report then enumerates the names of voters who were proven to
have sold their votes, to the number of ten, including one man
purchased by the sheriff of the county, who procured the satisfaction
of a fine standing against the voter; and continues:
These 10 votes were directly purchased, and no attempt is made to
disprove the direct evidence establishing the fact. There is
considerable circumstantial evidence tending to show that others were
influenced in like manner in this county; the money was provided, the
will to use it was not wanting, and if there were other corruptible
voters in the county known to the corruptors they were undoubtedly
reached in the same way and by the same representatives of the majesty
of the law, the sheriff and State's attorney of Russell County. We can
go no further than the evidence justifies and deduct these 10 votes
from contestee's majority.
-----------------------------------------------------------------------
\1\ Record, pp. 3294, 3348-3363; Journal, pp. 462-464.
\2\ First session Fifty-first Congress, House Report No. 1214;
Rowell, p. 195.
Sec. 1028
In Dickinson and Wise counties inducements were held out to illicit
distillers by United States revenue officers of immunity from
prosecution for violation of the revenue laws in consideration of
support to the Democratic ticket. Three or four voters are shown to
have voted for contestee on account of this kind of pursuasive
argument. If others were so pursuaded it does not appear in the
evidence. Altogether some 20 votes were lost to contestant in the
manner above stated.
(2) Contestant claimed that the returns of Giles County should be
rejected. The report says:
Here it is claimed that the returns from the county should be
rejected because the returning officers of the county corrected their
abstract of the precinct returns after it had been made up and the
board had adjourned.
It seems that in making up the abstract, by a clerical error, one
precinct had been left out. Before the returns were transmitted to the
secretary of the commonwealth the mistake was discovered and corrected.
This was just what ought to have been done, and if this precinct return
had been omitted it would have been the duty of the committee to
include it in the total vote. The objection is technical and without
merit.
(3) As to conduct of election officers:
It is further insisted that the return from Pembroke district should
be rejected on account of the misconduct of the election judges.
Sometime during the day a fight took place near the polling place,
and the judges of election ad went out to witness it, leaving the
ballot box in the custody of the clerks, who were of opposite political
faiths. During this temporary absence the Democratic clerk was seen to
push a ticket into the box, and it is claimed that this circumstance
proves that other ballots than those of the voters were deposited in
the box. The circumstance is explained in a like manner quite
consistent with the honesty of the clerk. Just as the fight commenced,
one of the judges had received a ballot and attempted to deposit it in
the box, but in his hurry did not quite succeed, leaving the ballot in
the opening, and the clerk pushed it down with his pencil. During the
absence of the judges no one interfered with the box, no one was
prevented from voting by the delay, and there is no evidence to impeach
the return. Two or three illegal votes were cast at this poll, but
there is nothing to show unfairness on the part of the judges.
In Russell County also there was a question as to the conduct of the
officers:
We are asked to reject the returns from Honaker precinct, Russell
County, on account of alleged misconduct of the election officers. At
this precinct the election judges adjourned for dinner and supper, and
each time two of them took the ballot box from the polling place and
carried it to a private house where they went for their meals. By this
conduct the box was removed from the presence of the United States
supervisor, in violation of the statute. The supervisor claims that he
protested against the removal, but the preponderance of the evidence is
against his claim. The majority for the contestee at this precinct was
89, a large increase over former elections. This illegal act of the
judges gave opportunity for fraud, such fraud as the statute was
designed to prevent. In the examination of other cues we have found
that adjournment and removal of the ballot box from the presence of the
supervisor is a common method resorted to when it is intended to change
the ballots or the boxes. But for the strong affirmative proof that no
wrong was intended or done in this case, the committee would
unhesitatingly reject the return.
The increase in the Democratic majority is accounted for, to some
extent, if not fully, by the existence of the corruption fund spoken of
in this report.
1028. The case of Bowen v. Buchanan, continued.
Registry being required in towns of a certain population and the
population of a town not having been determined accurately, votes
rejected for lack of registry were counted by the House.
Indefinite and uncertain intimidation by employers of labor does not
justify rejection of a poll.
An ascertained number of voters being intimidated by roughs, the
House corrected but did not reject the poll.
Sec. 1028
Fighting at the poll, no injury resulting in the vote of either
party, does not justify rejection of the poll.
(4) As to alleged illegal rejection of votes:
At Pocahontas precinct, Tazewell County, 40 votes tendered for
contestant were, in our view, illegally rejected. By the statutes of
Virginia it is provided that in all towns of over 2,000 inhabitants a
transferred voter must have his transfer recorded at least ten days
prior to the election. At all other precincts a transferred voter may
vote without such registry. It was claimed by the election officers
that Pocahontas was a town of over 2,000 inhabitants, and these 40
voters were denied the right to vote because they had failed to have
their transfers registered. Pocahontas is a new mining town; no census,
State or national, has disclosed the number of its inhabitants, and
there is a difference of opinion among the inhabitants as to the number
of people. In the absence of any legal determination of the number, we
do not think the election judges had any right to decide that this town
was within the exception.
Contestee lost 4 votes by the same ruling, and there was a net loss
to contestant of 36 votes.
(5) As to intimidation:
At Loup or Johnson's Store precinct it is claimed that the returns
should be rejected because of the undue and improper influence of the
Stewart Land and Cattle Company over their employees, some 40 or 50 in
number. The proof tends to show that at previous elections these
employees had been given to understand that they must vote the
Democratic ticket or lose their places. It was generally understood in
the community that one of the conditions of employment by this company
was that the men should vote the Democratic ticket. It is
unquestionably true that many of the men believed that to vote
otherwise would cost them their places, and that belief undoubtedly
induced some of them to vote against their convictions; but there is no
direct evidence implicating any of the members of this company in an
attempt to control their employees at this election other than the
presence at the polls of one of their foremen distributing tickets to
the men. How many men were influenced, by the prevalent belief does not
appear, and this supposed influence is too uncertain and indefinite to
justify the rejection of this poll or other neighboring polls where
some of the employees voted.
At Slate or Sander's precinct, in Buchanan County, where there were
from 10 to 15 Republicans, a crowd of drunken roughs assaulted 6 or 7
Republican voters, and only 3 voted. These, while voting the National
Republican ticket, voted for sitting Member as a measure of prudence.
The report says:
The majority of the voters at this precinct were peaceably disposed,
but a few vicious, drunken partisans of contestee deprived contestant
of the Republican vote of the precinct. Were their number uncertain we
would exclude the return, but as their number is not a matter of
uncertainty, and as contestee would have had a considerable majority in
this precinct in any event, it is not in accordance with the precedents
to reject the return; if a sufficient number were so intimidated as to
overcome the majority of contestee the committee would hold that he had
no right to retain his seat.
At Colly and one or two other precincts there was fighting at the
polls, but the evidence showed the full Republican vote to have been
polled.
The committee also discussed several questions of fact, and concluded
that sitting Member would still have a majority of over 200 votes after
all deductions had been made. Therefore they recommended:
Resolved, That John A. Buchanan was duly elected to the Fifty-first
Congress from the Ninth Congressional district of Virginia, and is
entitled to retain his seat.
Resolved. That Henry Bowen was not elected a Representative to the
Fifty-first Congress from the Ninth Congressional district of Virginia,
and is not entitled to the seat.
The minority concurred in the conclusions, but dissented from some of
the statements made in the report.
On April 16 \1\ the House agreed to the resolutions without debate or
division.
-----------------------------------------------------------------------
\1\ Record, pp. 3451, 3452; Journal, p. 479.
Sec. 1029
1029. The Indiana election case of Posey v. Parrett, in the Fifty-
first Congress.
Direct testimony taken in time of rebuttal and objected to at the
time was not considered by the House.
When a student is in a place simply for the purposes of education, a
presumption is thereby raised against his intent, and other proof as to
residence is necessary.
Persons within a precinct as laborers must by proof establish the
intention and other conditions of residence.
On April 3, 1890 \1\ Mr. C. A. Bergen, of New Jersey, submitted the
report of the Committee on Elections in the Indiana case of Posey v.
Parrett. The sitting Member, by the official returns, had a plurality
of 20 votes.
The evidence by which contestant tried to prove bribery was deemed by
the committee insufficient.
A preliminary question as to evidence was thus determined:
It is proper to observe here that much of the testimony in the case
has been taken out of time, or to speak more accurately, in rebuttal,
when by its substance it is evidence in chief. This is in violation of
the act of Congress, and was at the time objected to on the part of the
contestee, who, though present, also refused to cross-examine on that
ground. No reasons for this course on the part of the contestant have
been presented to the committee, and the committee has felt itself
bound to exclude such evidence from its consideration of the case. It
believes that the rights of the House under the Constitution are not
abridged by the act referred to, but that each Congress in enforcing
those rights will not depart from the terms of the act except for
cause.
The remaining question in the case related to the qualification of
certain voters in relation to residence, and is thus discussed by the
committee:
There are two classes of voters brought in question in this case
under the head of nonresident--those known as the St. Meinrad voters
and the Kentucky voters, though the last description is not accurate,
for not all included under it are spoken of as from Kentucky.
The St. Meinrad votes were 30 in number and were cast for the
contestee by students of the college or seminary at St. Meinrad. These
students were young men there solely for the purpose of an education in
preparation for the priesthood. They had come mostly from Indiana, but
many of them from other States and some of them from foreign countries.
Their tuition and support were furnished to them by their respective
bishops. They all testified that their residence was at St. Meinrad. It
might well be doubted if they meant more by this than that they had
been at that place the time necessary to make it their home. A proper
cross-examination would probably have disclosed the misunderstanding of
the witnesses. But we must consider the case as it is presented. No one
doubts the evidence of these very respectable gentlemen that they had
been at the institution most of the time for a number of years and
sufficiently long to have gained a residence if that were the only
requisite; but residence is a mixed question of fact and intention, the
fact without also the intention is not sufficient of itself to
establish a legal residence. And it is a well-settled principle of the
cases that one who leaves his home to go to college for the purpose of
an education does not from continuance there the required time gain a
residence. On the contrary, the very object of his stay raises a
presumption against such result. This is not because the law adopts a
rule in the case of students different from that in other cases, but
because it also reasons from analogy and must in all cases be
consistent.
The votes of those who in this case have been described as ``Kentucky
voters'' depend upon the same principles of law as those of the St.
Meinrad students, and both depend upon solving the problem whether the
individual voter ever in contemplation of law changed his place of
residence from that last had to that now insisted upon or opposed.
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 189; Rowell,
p. 189.
Sec. 1029
The law places a child's residence with his parents, not because they
are his parents, but because theirs is the home into which he is born;
so, also, with his guardian if his is his actual home. There he has the
right to vote the day he becomes of age and there he has the protection
of law, the right of support if ill-health, misfortune, or poverty
overtakes him whether in infancy or mature years; there a citizenship,
which he has the right to prove and the flag to defend and against
which simple actual absence, no matter how long, will be no defense.
Nor does such residence depend upon the maintenance of the parental
roof. (Fry's Elec. Cases, 71 Penn. St., 302.) It moves with it only
when the law from other circumstances concludes the child is still a
component part. The homestead may have disappeared and yet the legal
right of the child or man be unaffected. The State will not disown its
son, and it recognizes the family when a component part but not its
sole dependence.
The intention of the voter is an important factor in determining the
place of residence, and the proper way is to examine the surrounding
circumstances to discover that intention. Plainly one who is a student
at a college or toiler in Kentucky may be a voter, but he may not more
than any other citizen have two places at either of which, according to
whim or convenience, he may on election morning determine to vote. The
law does not mean that a matter so vital to the rights of others shall
be concealed and hidden within the single breast of one of the parties.
Residence at the college, or in Kentucky, like residence at any other
place, gives and takes away the right to vote, but when of a person
simply for the purpose of an education, as in the case of the St.
Meinrad students or of labor, as with many of the ``Kentucky voters,''
it raises a presumption of want of bona fides and necessity for other
proof to show that it was the intention of the voter it should have
such effect.
The student voters were Catholics, and the form benefactions took
with them was from the bishop, and from this it was argued that the
bishop stood in loco parentis. Even if granted, it would not affect the
question involved, nor have more to do with it than if the students had
been in a Protestant college, there supported, as is commonly the case,
by their churches for the Protestant ministry. The question would still
be, not whether their residence was that of the church by which they
were supported, but whether they had ever given up their last residence
and undertaken to acquire another at the college. To do so, they must
either directly have renounced their former home and assumed the
obligations of citizens in their place of adoption, or done acts, open
and acknowledged, inconsistent with the one and assertive of the other.
Every one has a well-recognized right to change his place of residence,
and may do so if he proceed in consonance with known principles.
Contestant's case must fail in regard to the students, not so much
because in fact they were entitled to vote, as to use the language of
the supreme court of Indiana, in Pedigo v. Grimes (112 Ind., 148),
``because there is no evidence that this (their intention of making
that place their residence) was not their intention formed and acted
upon in good faith.'' Each party at the hearing relied upon this case
to support his position. It is sufficient to say, while thus citing
from it, that it will not bear the extreme construction put upon it by
contestee. That would not only do violence to its language, but place
it in opposition to the trend of decisions elsewhere upon which it
claims to rest.
An application of these principles to the other votes brought in
question shows that the following were improperly cast and counted for
the contestee and should be deducted from his number, to wit, Solon
Hedges, Neeley Borden, Samuel Bogan, J. Nickens, A. Nickens, Thomas
Hampton, Harry Hampton, Dink Miller, Frank Wiseman, Homer Campbell, E.
T. Conway, John Oaks, Thomas Crosnow, and Stephen Winters--total, 14;
and that the following were improperly cast and counted for the
contestant and should be deducted from his number, to wit, James Smith,
James Eskridge, Alex. Boyd, Philip Dailey--total, 4.
This still leaves the contestee with a plurality of 10 (20-14+4=10).
The committee is of the opinion that the certificate of election was
rightfully issued to William F. Parrett and that he is entitled to the
seat. It therefore submits the following resolutions and recommends
their adoption:
Resolved, That Francis B. Posey is not entitled to a seat in the
Fifty-first Congress as Representative from the First Congressional
district of Indiana.
Resolved, That William F. Parrett is entitled to a seat in the Fifty-
first Congress as Representative from the First Congressional district
of Indiana.
The report was debated on April 16,\1\ and on that day the
resolutions were agreed to--ayes 125, noes 4.
-----------------------------------------------------------------------
\1\ Record, pp. 3444-3451; Journal, p. 479.
Sec. 1030
1030. The Alabama election case of McDuffie v. Turpin, in the Fifty-
first Congress.
Instance wherein the history of previous elections in a district and
common knowledge as to its political condition was held to raise a
presumption against the returns.
A general plan of evasion of the law providing for boards of fair
election officers combined with attempts to prevent examination thereof
was considered proof of conspiracy to defraud.
Proof of a conspiracy to defraud may but does not necessarily require
the returns to be rejected unless sustained by oral testimony.
There being evidence of a conspiracy of election officers to defraud,
the returns were satisfactorily impeached by evidence falling short of
the best evidence; i.e., the testimony of the voters themselves.
Evidence of declarations of voters when they took their tickets and
went to the box availed to discredit returns of election officers of
doubtful honesty.
On May 7, 1890,\1\ Mr. J. H. Rowell, of Illinois, submitted the
report of the majority of the Committee of Elections in the Alabama
case of McDuffie v. Turpin.
Sitting Member had been returned by an official majority of 13,153
votes. The report says:
With such a returned majority for contestee it is apparent either
that this contest is a huge farce or that this whole district is
honeycombed with fraud.
The report then goes on to review the political history of the
district, showing that in preceding years the House had found fraud
enough to justify unseating the returned Member, and concluding:
From this account of the action of the election officers and
returning boards of this district it is clearly evident that there has
existed a fixed determination on the part of the Democratic managers
there that the will of the majority should be disregarded and a
willingness to resort to any methods, however unlawful and criminal, to
accomplish the defeat of their Republican opponents. The record in this
case justifies and fully confirms the above conclusion and shows that
the same conditions continue to exist.
If the certified returns in this case are true, it follows (allowing
for 500 increase in white voters since 1880, and 2,000 increase in
colored) that all the white voters and at least 11,800 colored men
voted for contestee, while only 5,625 voted for contestant and more
than 11,500 did not not vote at all; that is to say, more than two-
thirds of the colored men who cast their ballots voted for contestee
and 43 per cent did not vote at all.
In the light of history, and of that knowledge common to all well-
informed men, it is not too much to say that such a report is a self-
evident falsehood, unless there is a present condition of affairs in
the Fourth district of Alabama taking that district out of the rule
which prevails everywhere else.
The record in this case demonstrates its falsity beyond a reasonable
doubt. The evidence in this record, as in other records from the same
district, shows conclusively that the great majority of the colored men
there are Republicans and that when they vote they vote the Republican
ticket.
The evidence of the certified returns, on the other hand, shows that
a large majority of them vote the Democratic ticket. The conflict is
between the returns and the men who cast the ballots on which the
returns purport to be based.
The evidence also shows that in almost every voting district there
are a few colored Democrats well known to both white and black. It also
shows that where the whites are in a majority a greater
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 1905;
Rowell, p. 257.
Sec. 1030
number of colored men vote the Democratic ticket than in localities
where the blacks greatly preponderate.
The evidence further discloses that the Republicans have kept up
their party organization, that they continue to take great interest in
elections, and, as a rule, are eager to exercise the right to vote. It
further shows that at this election there was entire harmony in the
ranks, the only exception being a so-called Republican paper of small
circulation and less influence, which lent itself to the Democracy.
The evidence further establishes the fact that throughout the
district there was a general belief among the Republicans that there
would not be an honest count of the votes; that, whatever the actual
result, contestee would be declared elected and that it would be
necessary to prove the true vote by other means than the returns and to
appeal to the House to correct the anticipated wrong to the voters.
Such belief does not exist so universally without cause. The history of
this district, the common knowledge of the mass of voters in it of
announced results at former elections, and the action of county
officers in appointing inspectors of election, fully justified the
belief, and results prove that the belief was foreknowledge.
The report next reviews the law of Alabama relating to elections,
especially on the following points:
The inspectors appointed by the probate judge, sheriff, and circuit
clerk (or any two of them) must be appointed at least thirty days
before the election; and, if practicable, must be of different
political parties.
The sheriff must, at a given time, summon the probate judge and
circuit clerk as a board of supervisors to ascertain and certify the
result of the election. If these officers are all of the same political
party, then this returning officer must summon three reputable
householders, citizens and voters, of the opposite political party, to
make up this returning board or board of supervisors. In connection
with this section of the statute it may be remarked that all the
officers made returning officers by law were of one political party,
but nowhere was it deemed by them or the sheriff necessary to comply
with the terms of the law and summon members of the opposite political
party to act as supervisors. Such little formality, designed to secure
honest returns, seems to have been entirely forgotten.
The following from decisions of the supreme court of Alabama have a
bearing upon the case:
``It is the election which 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. (13 Ala., 885.)
Nor will a mistake by the managers of the election in counting the
votes and declaring the results vitiate the election. Such a mistake
should be corrected; the person receiving the highest number of votes
becomes entitled to the office.'' (9 Ala., 338.)
In considering the evidence with reference to particular precinct
returns, it is first necessary to inquire by whom the election was
held, in order to determine what weight should be given to the returns.
Returns are, as a rule, prima facie evidence of the result; but if
the integrity of the inspectors is in any way impeached, either by
showing that their character is such as to cast suspicion on their
acts, or that their belief is that frauds upon elections are
justifiable, or that the manner of their selection was such as to
indicate a purpose to procure a false statement of results, then the
returns lose much of the weight that would otherwise attach to them.
(English v. Peele, Forty-eighth Congress.) In this case the committee
says:
``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.''
In Lowndes County the precinct inspectors were appointed on the 25th
day of September. A few days afterwards the contestee visited the
county, and on the 6th day of October an entire change was made in the
list of inspectors appointed to represent the Republicans. The first
list was satisfactory, and made up in the greater part of intelligent
men. The second list was made without any authority in the law, and its
composition shows that the change was made for a dishonest purpose.
Judge Coffey (Record, p. 745) says that the reason for this change was
that the sheriff and several other gentlemen told him that the
Republican inspectors, being school teachers, did not wish to serve and
mix up in politics. Hence the change. Let us see whether that was the
true reason.
Sec. 1030
After reviewing the several precincts the report concludes:
Twelve of the first list either served or tried to serve, and eight
of the new list who served could neither read nor write. The reason for
the removal of intelligent and trustworthy Republicans and replacing
them with ignorant and unreliable men, in pretended compliance with the
law, is evident from the foregoing statement, and the falsity of Judge
Coffey's reason is made apparent.
That contestee had something to do with this change does not admit of
much serious question.
When the law provides that each of the two political parties shall
have representation on the election board of inspectors, it is a
provision to prevent dishonest partisans from making false returns; and
in such case the appointment of men incompetent to determine whether
the return is honest or not to represent the party opposed to the
appointing power, tends to prove an intent to prevent that watchfulness
intended to be secured by the statute, and raises a strong suspicion
(if it does not fully prove) of conspiracy to falsify the returns.
After showing that the inspectors appointed to represent the
Republican party were generally ignorant and disloyal, the report
continues:
Such uniform violation of the statute and such uniform pretense of
complying with its terms by appointing colored Democrats to represent
the party, or by appointing illiterate colored Republicanshow method in
the action of the county boards, with dishonest designs behind the
method.
Under these circumstances it would be safe to apply the rule adopted
in regard to this district by the House Committee on Elections in the
Forty-eighth Congress, and consider as trustworthy only such returns as
are sustained by oral testimony. But the committee has not gone to that
extent in this case.
It is worthy of remark that in almost every precinct in the fourth
district there were reliable and intelligent Republicans, competent to
discharge the duties of election inspectors and to protect the voters
to the extent of securing an honest count and a correct return.
Another feature of the election, which can not be overlooked, was the
precaution everywhere taken by the Republican to ascertain with
accuracy the number of votes cast by them, showing a universal distrust
of the precinct officers. In many precincts complete poll lists were
kept by clerks selected for that purpose, voters going to the extent of
refusing to vote unless such precaution was taken. On the other hand,
vigorous efforts were made by the Democrats in many places to prevent
the keeping of such lists, under the pretense that the keeping of such
lists was intimidation. Deputy sheriffs were active in trying to
suppress this attempt to keep a check upon the distrusted election
officers.
In one instance the attempt of a deputy sheriff, acting under the
direction of the sheriff of the county, to stop the further keeping of
a poll and to secure possession of the one that had been kept, resulted
in the murder of one Republican and the wounding of two others by the
deputy and his supporters. The murderer has escaped even the formality
of a prosecution.
These officials who were thus attempting to prevent the measures
taken by the Republicans to preserve the evidence of the vote cast,
well knew the purpose of these measures, for, only two years before, in
the election contest of McDuffie v. Davidson, this kind of evidence had
been used all over the district to show up the frauds in the election
of 1886. The conclusion is inevitable that these acts of the Democratic
officials and their aiders and abettors were done in furtherance of
contemplated frauds.
The printed record discloses another unpardonable attempt to suppress
testimony. This attempt was the deliberate act of contestee and his
attorneys. Frivolous objections, covering whole pages of the record,
and cross-examinations of witnesses which would disgrace a police court
shyster, were the meansby which contestee and his attorneys sought to
use up the time allowed to contestant in which to take testimony to
prove his allegations. This conduct resulted, beyond a reasonable
doubt, from a deliberate purpose to suppress as much of contestant's
evidence as possible, and prevent a disclosure of the whole truth.
These are some of the general features of the case proper to be
considered in applying the specific evidence in regard to the various
precinct returns brought into question.
Sec. 1030
The general method of proving charges of fraud in the several
precincts was to show that more votes were cast for contestant than
were returned for him, and was, as described in the debate,\1\
to select intelligent men and let them stand as near the polls as they
would be permitted to do, in order to distribute tickets among the
electors, as they did, the colored or Republican elector in nearly
every instance taking his ticket, and in some of the precincts carrying
it over his shoulder, so that the man who gave him the ticket could
watch him until he gave it to the inspector at the polls, who received
it and deposited it in the box. Returning, to make assurance doubly
sure, he would state to a list keeper that he had voted the Republican
ticket that he received, and wanted his name taken down as a Republican
voter.
Where this method showed a wide variance between the number of votes
thus proven for contestant and the vote accorded him in the official
returns, the majority of the committee did not reject the poll, but
counted for contestant the number of votes proved by the tally keeper,
and allowed to sitting Member such votes as were proven for him or
conceded to him.
In many precincts there was found other evidence of fraud, such as
names of voters arranged on the poll list alphabetically.
As to the method of proof the majority report says:
Here we have 170 voters declaring at, the polls their intention to
vote the Republican ticket, taking the ticket from one chosen by them
to issue tickets by prearrangement, holding their tickets in such a way
that they could be seen until voted, and then having their names
registered so as to be able to prove how they voted. These acts are a
part of the res gestae of the election--the deliberate declaration of
the voters while engaged in the act of voting, not only of how they
voted but of their utter want of confidence in the election board, upon
which they had no representation.
And also:
The violation of the letter and spirit of the law in the appointment
of the election officers, so universal as to show deliberate intent,
the universal knowledge of the purpose of such violation, and 0 the
various acts of the partisans of contestee, including all the officials
throughout the district, are what give weight and character to the
evidence which shows the results in individual precincts, or beats, as
they are called in Alabama.
The admissibility of this kind of testimony has been fully recognized
by the courts, and its weight in this class of cases admitted.
Judge Howell E. Jackson, late a United States Senator and now a judge
of eminence, in his charge to the jury in the recent trial of Tennessee
election officers for violating the Federal election laws at Memphis,
Tenn., used the following language:
``Said witnesses testified that the voting population of the fourth
civil district of Fayette County on November 6, 1888, numbered between
490 and 500-say, about 500. That about 80 to 100 of such voters were
white men or Democrats; the remainder, numbering about 400, were
colored men and Republicans. That on the day of the election there was
a large turnout of such voters. That the colored voters present
exceeded 300 in number. John McGowan, the Republican chairman of the
district, states that there were over 300 colored Republican voters
present. That he directed many or most of them to go for their tickets
to John C. Reeves, who occupied a position 10 or 20 steps from the
voting place, and was distributing Republican tickets to Republican
voters. That Reeves's position was in full view of the window at which
the ballots were handed in to the officer. That he saw many of the
tickets deposited or handed in to the officer holding the election, and
can not swear to the actual number that voted that had Republican
tickets. John C. Reeves testified before you that he was present. That
he had in his possession Republican tickets, a sample of which is
produced in evidence, having on it a full list of Republican
candidates, from Presidential electors and Congressmen down to State
and county officers. That he issued to the colored voters on that day,
upon their application
-----------------------------------------------------------------------
\1\ Record, p. 5545.
Sec. 1031
for the same, 325 of those tickets while at the voting place. That on
his way home he met 4 or 5 other voters going to the polls, to whom he
gave Republican tickets; the names of 2 of those voters he finds upon
the poll list at Nos. 407 and 409. Reeves further states that he saw
over 100 of those to whom he gave tickets go directly from him to the
window where the votes were received and hand them in to the officer
holding the election. He could not swear that they actually deposited
the identical tickets received from him, but he saw no change of ticket
or change of purpose on the part, of the voter after procuring from
himself the Republican ticket. He recognizes on the poll list the names
of about 100 of such Republican voters. Now, gentlemen of the jury,
Reeves and McGowan are in no way impeached, nor are their statements in
any wise contradicted. They stand before you as in every way credible
witnesses, and their testimony is entitled to full faith and credit. If
the case for the prosecution stopped with Reeves and McGowan, it would
present a case of circumstantial evidence as to the vote actually cast
having exceeded that which was counted and returned by the election
officers and judges. When circumstantial evidence is relied on to
convict, as counsel for defense has suggested, it should be of such
conclusive character as to exclude any remote hypothesis of
innocence.''
It is to be remembered that the last remark has reference to the
proof required to convict in a criminal case.
Speaking in regard to individual voters who had testified to their
votes, he said:
``If the prosecution had simply shown that each one of these
witnesses was seen going to the poll with a Republican ticket in his
hand which he had received from Reeves, with a declaration of his
intention to vote said ticket, such facts and acts would have
constituted circumstantial evidence that they voted said ticket.''
It is to be remembered that the evidence in this case is more direct
and more certain than was the evidence upon which Judge Jackson's
charge was based, and that the witnesses and voters take much greater
pains to be able to know the exact facts.
The minority attack the evidence, both as to its credibility--a
question of fact--and as to its competency, a question of law:
Section 265, before opening the polls the inspectors and clerks must
take an oath to perform their duties at such election according to law.
``The return must stand until such facts are proven as to clearly
show that it is not true.'' (McCrary on Elections, 438 and authorities
there cited.)
The object of this investigation should be to ascertain the truth. In
all such investigations each party should be required to produce the
highest and best evidence attainable. This rule of evidence will not be
disputed.
In the debate \1\ it was urged on behalf of the minority by Mr.
Charles F. Crisp, of Georgia, who had presented the minority views,
that the highest and best evidence was the testimony of the voters
themselves, and that this had not been taken. The presumption in favor
of the honesty of election officers and the testimony of the officers
declaring the election honest were also urged.
1031. The case of McDuffie v. Turpin, continued.
In extraordinary cases, and where it appears that in no other way can
the will of the voter be ascertained, resort to methods not technically
legal may be justifiable.
An outside poll informally held and rejected by State canvassers may,
under certain circumstances, be counted by the House.
The voters are not to be disfranchised by any neglect of the officers
after the election if the correct vote can be ascertained.
The ballots not being counted at the close of the poll and the box
being
-----------------------------------------------------------------------
\1\ Record, p. 5552.
Sec. 1031
taken away in violation of law by election officers of doubtful
honesty, the returns were rejected.
A question of a somewhat different nature was brought up in relation
to Uniontown precinct in Perry County. The majority report says:
There were two boxes in this beat, and returns were made by the
officials holding each election. At one the Republicans voted, at the
other the Democrats. The return which was counted gave Turpin 210,
McDuffie 2. The other return gave McDuffie 953. Dr. J. H. Houston's
testimony (306) gives the history of the election where the Republicans
voted, and shows that all the forms of law were complied with. The
sheriff of the county (446) shows that the returns were presented to
him and he refused to receive them. The box was retained and its
contents counted in the presence of the commissioner taking the
testimony.
There is a dispute about the time of opening the different polls, but
in our view the question is not material in this particular case. That
the two polls taken together constitute an honest statement of the
result of the election, and show the exact state of the legal vote, we
have no doubt. They also show that where there is an honest count the
Republicans adhere to their party ticket.
The action of the election inspectors for this precinct at the
election for the Fiftieth Congress justified the action of the
Republicans. Indeed, it was apparently the only course left open to
them to prevent their votes from being counted for the Democratic
candidate. At that election the returned vote was:
Davidson (Democrat).... 720
Turner (Independent)... 203
McDuffie............... 65
The majority of the committee in that case found from the evidence
such frauds as destroyed the return, and from the evidence gave
McDuffie 400 and Davidson 8. The evidence indicated a Republican vote
of over 800, but the majority of the committee found that only 400 were
satisfactorily proved.
In extraordinary cases, and where it appears that in no other way can
the actual will of the voter be ascertained, a resort to methods not
technically in accordance with statutory direction may be justifiable,
and upon proof that a full, fair, and honest election has been held by
those only who are qualified voters, under these circumstances the
returns from such an election, when duly proved, may be considered and
counted.
None of those guards provided by statute to secure honest results
should be neglected, but when statutory provisions designed to protect
qualified voters in the exercise of their legal rights are made use of
with deliberate purpose to suppress the will of the majority, such
action will be regarded as fraudulent.
The minority say:
The election officers, two Democrats and one Republican, under oath
returned that the vote cast was 201 for Turpin and 2 for McDuffie. The
officers at this poll were regularly appointed by the proper officers,
opened the polls at the proper time and place, and received all legal
votes tendered. The officers properly certified the return; they were
properly delivered to the returning board for county and counted.
Another box or poll was opened in a remote part of the town, not the
usual place of holding elections, by persons unauthorized so to do, and
in this box a number of tickets were deposited, one witness says 953,
another 1,153, all for McDuffie. This box was not counted by the
returning board, and should not have been; there is no pretense that
the regular return was not correctly counted; the majority admit this
second box or voting place was not authorized by any law or statute of
the State, and the evidence shows that there was no mistake or
misapprehension on the part of the voters. It was deliberately done,
avowedly for want of confidence in the regularly appointed and acting
officials of the election. Under no view of the law or facts can the
tickets deposited in this box, even if we knew how many there were, be
counted for either party.
The majority count this precinct: Turpin 210, McDuffie 955, thus
including the illegal with the legal return. This can not be done, and
the undersigned believe the return as made must stand.
Sec. 1032
A similar question arose as to Liberty Hill precinct, in Dallas
County. The majority ruled:
No return from this precinct is found among the records of the
county. The evidence shows that the Democratic inspectors failed to
appear at the polling place, nor did any of the Democrats of the beat
appear during the day. It was the intention to have no election here,
but the colored inspector was on hand, as was the United States
supervisor. An election board was organized according to law, the
election held, and 197 votes cast for McDuffie. Returns were made out
according to the vote; what became of the returns designed for the
county board does not appear, but the supervisors made returns to the
chief supervisor (p. 763). The voters are not to be disfranchised by
any neglect of the officers after the election if the correct vote can
be ascertained. In this case it is duly proved.
The minority report contends that poll was illegally and
incompetently held.
The law of Alabama provided:
Sec. 285. Counting out votes.--It is the duty of all inspectors of
elections in the election precincts, immediately on the closing of the
polls, to count out the ballots so polled.
As to the precinct of Pence, in Dallas County, the majority rule:
All the inspectors and clerks were Democrats. When the polls were
closed one of the inspectors took the ballot box to his home, some 200
yards away, and when the supervisor would not go to that house to
witness the count the box was brought back and handed to the colored
Democratic inspector and carried away, and the count was not made until
the following day. This violation of the law so invalidates the returns
as to require proof of their correctness. Witness says that there are
only three colored Democrats in the beat, one of whom was an inspector.
He estimates the colored vote of the beat at 190, it being only an
estimate.
Instead of calling the officers of the election, contestee calls one
William Bell (p. 646), who testifies to the effect that Isaacs could
not have seen the window when the tickets were taken in. He made a bad
guess at population, and only estimates 30 or 40 white voters in the
beat.
Remarks upon the character of the evidence and the reversal of
returns in other beats will apply to this one as well. We count it
according to notice of contest.
As a result of their conclusions, the majority of the committee found
a majority of 4,481 for contestant in the district, and reported
resolutions providing that he be seated.
The minority found that sitting Member was entitled to 9,104
majority.
The report was debated at length on June 3 and 4,\1\ and on the
latter day the question was taken on substituting the minority
proposition, confirming the title of sitting Member, for the majority
resolutions; and the motion was disagreed to--yeas 114, nays 130.
Then the resolutions of the majority were agreed to--yeas 130, nays
113.
Thereupon Mr. McDuffie appeared and took the oath.
1032. The Virginia election case of Langston v. Venable, in the
Fifty-first Congress.
A succession of unexplained irregularities on the part of intelligent
election officers destroys the presumption in favor of the returns.
The House counted returns rejected by State canvassers for mere
informalities.
The election officers being irregularly chosen and of suspicious
conduct, an excess of ballots over the poll list was held to justify
rejection of the box.
-----------------------------------------------------------------------
\1\ Record, pp. 5542, 5598--5601; Journal, pp. 699, 700.
Sec. 1032
Returns not being signed by the election officers and not being
sustained by evidence, they were rejected.
On June 16, 1890,\1\ Mr. Nils P. Haugen, of Wisconsin, submitted the
report of the majority of the Committee on Elections in the Virginia
case of Langston v. Venable. The report says:
The official returns from the Fourth Congressional district of
Virginia of the election of Representative in Congress, on the 6th of
November, 1888, give E. C. Venable 13,298, John M. Langston 12,657, and
R. W. Arnold 3,207 votes, a plurality of 641 votes for Venable over
Langston.
The contestant, Mr. Langston, claims that this is not the true vote
of the district, but is the result of fraud and corruption on the part
of the election officers in certain counties and at certain precincts
specified in his notice of contest, and that had the vote been honestly
received and honestly returned in accordance with the laws of Virginia,
a clear plurality over Mr. Venable would have appeared for him
Langston.
The committee has selected from the voluminous record (which contains
some 1,200 pages of closely printed matter, much of it irrelevant and
tedious cross-examination) a few precincts which appear to the
committee to sustain the charges of the contestant and completely
overcome the plurality for contestee on the face of the returns.
Mere irregularities in the conduct of the election, where it does not
appear that the legally expressed will of the voter has been suppressed
or changed, is insufficient to impeach officially declared votes and
have been disregarded. But a succession of unexplained irregularities
and disregard of law on the part of intelligent officials removes from
the ballot box and the official returns that sacred character with
which the law clothes them, and makes less conclusive evidence
sufficient to change the burden upon the party who maintains the
legality of the official count.
Paine on Elections, section 596, says:
``While it is well settled that mere neglect to perform directory
requirements of law, or performance in a mistaken manner where there is
no bad faith and no harm has accrued, will not justify the rejection of
an entire poll, it is equally well settled that when the proceedings
are so tarnished by fraudulent, negligent, or improper conduct on the
part of the officers that the result of the election is rendered
unreliable the entire returns will be rejected and the parties left to
make such proof as they may of the votes legally cast for them.''
The laws of Virginia recognize the weaknesses of human nature and the
necessity of having friends of the candidates representing different
views upon the election boards to guard against the temptation to which
a board whose members all affiliate with one political party might be
subject.
After quoting the law of Virginia as to elections; the report goes
on:
There are numerous instances in the record of unwarranted changes in
judges of election, made without reason or excuse only a few days
before the election. These are suspicious circumstances, but standing
alone and not supported by evidence of fraud at the polls, affecting
the result of the election, they have been disregarded, and the
certified returns permitted to stand as made. In arriving at results,
specific acts at certain designated precincts are alone considered,
without unnecessarily dwelling on the general political and race
features of the district.
As the case was examined the decision turned on the disposition of a
few precincts.
(1) In an election district known as ``Porch and Ross'' the following
ruling is made by the majority:
At this precinct 69 votes were cast for Venable and 141 for Langston,
a plurality of 72 for Langston. This vote was regularly returned to the
county commissioners, but not counted for the alleged reason that the
same returns showed certain votes cast for candidates for President and
Vice-President instead of for electors of President and Vice-President.
For this mistake of the judges not only the electoral vote of this
precinct was thrown out, but the vote for every other candidate upon
the ticket was rejected by the county commissioners. This fraud now
stands confessed.
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 2462;
Rowell, p. 437.
Sec. 1032
The minority say:
We find that these returns were rejected because they were not made
in accordance with the directory provisions of the election statute of
Virginia; and in the absence of any suspicions of fraud, or evidence
tending to impeach their correctness, we think they should be counted.
(2) In Lewiston precinct the report discloses:
The regularly appointed judges at this precinct, appointed January
27, 1888, were W. P. Austin, B. H. May, and T. C. Fowlkes. Austin and
May were present at the opening of the polls, but did not serve as
judges. Mr. May acted as one of the clerks. The acting judges were E.
G. Bayne, T. F. Robertson, and E. C. Goodwin. All the judges and clerks
and the United States supervisor present were political opponents of
contestant. With the exception of Mr. Austin, who testifies that on
account of illness it was impossible for him to serve, no explanation
is given for this sudden change of judges on the very morning of
election; but that it was in pursuance of prearranged plans is apparent
from the presence of Mr. Robertson at sunrise on the morning of
election to serve as judge, he living some 8 or 9 miles distant from
the polls.
The judges excluded the clerks of election and everyone else when the
ballots were counted, and when the count was over there was found an
excess of ballots over the names on the poll list. The report says:
The excess of ballots appears by the return of the judges to have
been 26. Mr. Smith also testifies to the fact that the polls were held
in an unusual place. The customary place for holding the election at
this precinct had been the court room of the court-house. At this
particular election it was found advisable to occupy a small jury room
and exclude all witnesses, not excepting the clerks of election, which
would have been impracticable in the large and commodious court room.
Only one judge was sworn as to their acts, and he testified that the
election was fair and honest ``so far as I saw.'' He also testified
that he was inexperienced in election matters. The report says:
The clerks were not called as witnesses.
The only United States supervisor serving, W. J. Bragg, left
immediately after the closing of the polls, not to return, and was
consequently ignorant of any of the illegal acts of the judges charged.
The committee is of the opinion that the excess of 26 ballots in a
total vote of about 200 could not have occurred without the connivance
of the judges of election, and is such evidence of fraud as must
necessarily exclude this box. Contestee does not in his briefs even
mention the excess of ballots. The returns awarded Venable 119,
Langston 48, and Arnold 46 votes. The returns are impeached and
rejected. No competent evidence was offered as to the true vote cast.
The law as to appointment of judges provided:
Should any judge of election fail to attend at any place of voting
for one hour after the time prescribed by law for opening the polls at
such election, it shall be lawful for the judge or judges in attendance
to select from among the bystanders one or more persons possessing the
qualifications of judges of election, who shall act as judge or judges
of such election and who shall have all the powers and authority of
judges appointed by said electoral board.
The minority views, presented by Mr. Charles T. O'Ferrall, of
Virginia, agreed that the judges were not appointed according to the
statute, but held that the statute was not mandatory, and that the
judges were at least de facto officers, and that the voters should not
be made to suffer for the irregularity. The other points dwelt on by
the majority did not appear to the minority to suggest fraud, and they
concluded:
These excessive ballots could not affect the result. How they got
into the box no one, so far as the record shows, can tell. Suppose they
were put there by one of the judges. Should that disfranchise more than
200 voters?
Sec. 1033
There is no evidence that the Democratic vote at this precinct was
unusually large or the Republican vote unusually small. In the draw
Venable suffered more than Langston or Arnold, they losing,
respectively, 13, 8, and 4 votes. Langston's supporter and witness (J.
W. Smith) testified that he believed Langston received 66 votes
(Record, 814, question 45); the return gave him 48 votes, or 18 less
than his friend and worker believed he received.
Would it not be more in consonance with justice to give Langston 18
votes more and deduct them proportionately from Venable and Arnold, or
even take all from Venable, than reject the entire returns? Would not
that course be more equitable than depriving Venable of the entire
advantage he had at this precinct? Could Langston complain?
While adhering firmly to our position that the vote at this precinct
should be counted as returned, yet if it is not to stand we insist that
the contestant should not have more than his worker and witness claims
for him, or Venable made to lose everything.
(3) The majority thus dispose of Mannboro returns:
The electoral commissioners of Amelia County reported this precinct
as having given votes for Venable and 111 for Langston. The regularity
of this return was challenged by contestant in his notice of contest.
The only thing in the record bearing upon this question is found on
page 173, giving the following unsigned statement:
FOR CONGRESS.
E. C. Venable rec'd (122) one hundred and twenty-two votes.
John Mercer Langston rec'd (111) one hundred and eleven votes.
R. W. Arnold rec'd (73) seventy-three votes.
After the names, etc., are all set down, and at the foot of the list,
a certificate in the following form is required to be given:
We hereby certify that------had------votes for------; and------had--
----votes for------that had------votes for------, &c.
------ ------ ------ ------
------ ------ ------ ------
Clerks. Judges.
If this is the act of the officers of election, it is difficult to
see why the contestee did not introduce some evidence to show that
fact. As it is, the plurality of 11 returned for contestee must be
deducted from his former vote.
The minority say:
It is true the returns from this precinct were not signed by the
officers of election, and if the question had been raised in the notice
of contest and no evidence taken to show their correctness, we would
agree with the majority that they should be rejected. But the notice of
contest will be examined in vain for any charge or reference to this
precinct.
But in the debate \1\ it was pointed out that the contestant did in
fact raise this question in his notice of contest.
1033. The case of Langston v. Venable, continued.
Friends of contestant having been excluded from the count and
contestee's agents having prevented the best testimony, the House
excluded the return on secondary evidence.
Instance wherein returns were impeached on evidence of a person who
saw and listed the ballot of each voter as he deposited it.
An election board being unfairly constituted, the returns were
successfully impeached by the testimony of individual voters as to
their ballots and qualifications.
-----------------------------------------------------------------------
\1\ Record, p. 10155.
Sec. 1033
In order to justify counting votes of voters standing in line to
vote, but not voting, each voter should be called as a witness.
The fact that a decisive number of voters stand in line to vote and
are prevented justifies a declaration that the seat is vacant.
Where a poll has been rejected and proof aliunde is resorted to, only
the vote proven should be allowed.
(4) In the city of Petersburg fraud was expected by contestant, and
he instructed his followers how to meet it. The report says:
At the Republican Langston clubs in the city of Petersburg it was
agreed that every supporter of Langston should vote an open ticket;
that he should show his ticket to some reliable friend of Langston
selected for the purpose of registering the names of the Langston
voters and witnessing the deposit of their ballots in the box. This
plan was very generally followed by the enthusiastic supporters of
contestant, and the results promptly reported to him after election.
And as to the Third Ward:
The returns from this ward give Venable 518, Langston 174, and Arnold
105 votes.
M. N. Lewis, the witness referred to above, testifies that he was at
the polls all day, from the opening of the same until long after they
closed, and kept tally of the Republicans voting for Langston an
Harrison, in pursuance of the instructions of his party.
The judges and clerks of election were all Democrats and bitterly
opposed to contestant. Only one United States supervisor served, and he
a Democrat.
The report quotes the testimony of Lewis, who gave an account of how
he took his evidence of the vote for contestant. The following
quotations of testimony, with comments of the report, disclose its
nature:
``72. Q. Please examine the ticket I hand you and state whether or
not the ballot you saw in the hands of each voter of the Third Ward on
election day, November 6, 1888, and which was delivered to and received
by the judge of election, was identically like the ballot I hand you,
and did you or did you not enter upon your said books the name of each
colored voter who cast a ballot identically like the one here presented
to you?--A. This is the identical ballot voted by each voter whose name
I put upon my book.''
The ballot here filed is a straight Republican ballot, with Langston
for Congress.
``73. Q. You have stated that you stood at the polls of the Third
Ward all the day of election from the opening to the closing of the
same, excepting about thirty minutes, and that you were immediately at
the polling place of the Third Ward in this city; that then and there
you took down in the four books which you have here identified and
handed to the notary public the name of every colored voter, showing
you a ticket identical with the one you have just examined, and which
is filed with these depositions, marked ``Exhibit M,'' after said
ticket had been delivered to and received by the judge of election at
said ward on election day, November 6, 18M. Now please give the name of
each voter whom you so entered in said books as you have stated.''
The witness here gave the names of 286 voters recorded by him as all
(except two indicated) having voted for contestant, and filed the four
books containing the names with the notary taking the evidence, and
they are in the possession of the committee. The names appear in the
record. The word ``Langston'' is written after each name in these
books, except the names numbered 222 and 227, which are marked ``Dem.''
``74. Q. You have stated that you occupied the position immediately
at the window of the polling place in the Third Ward, on the side at
which the colored people voted, all the day of election except about
thirty minutes. Please state how many names were entered upon the books
you kept during your absence, if any were so entered.--A. Sixteen.''
These 16 names were fully identified by William J. Smith, who entered
them in the absence of Mr. Lewis.
``78. Q. You have stated that on election day W. J. Smith, during
your temporary absence from the polls, entered the names of 16 colored
voters upon the four books which you kept. Please state, if you
Sec. 1033
remember, how many names you recorded upon the said books on that day
at the time and under the circumstances already testified to.--A. I
recorded 201 names. The others, with the exception of 16 names, were
recorded in my presence and by my instructions by William J. Smith and
S. B. McE. Jones.
``79. Q. Have you, since the 6th day of November, 1888, compared the
four books as to which you have been testifying with the poll books of
the Third Ward on deposit in the clerk's office of this city, or with
either one of said poll books, or with a certified copy thereof?--A. I
have compared the four books with one of the poll books.
``80. Q. State what object you had in making such comparisons, and
state the result of it.--A. I compared the books to ascertain if they
agreed. I found that a great many of the names were misspelled, and
some few whose names I took and whose ballot I saw deposited, their
names do not appear on the poll book which I examined.''
The majority call attention to the fact that not one of the 286
voters to whom Mr. Lewis referred was called by sitting Member to
disprove the testimony, although in another voting precinct such a
course had been rewarded with success.
The majority report concludes:
With the friends of contestant studiously excluded from witnessing
the count, and with 284 votes proved to have been cast for him, while
the returns gave him only 174, this box stands impeached and must be
rejected.
In the case of Washburn v. Voorhees (3 Congressional Election Cases,
62) it was held that ``where in one precinct but 143 votes were
returned, while 173 were cast for contestant (a difference of only 30
votes), and in another 20 less were returned than were proved, and the
officers were shown to be violent partisans of the party in whose favor
the frauds were, the whole vote of the precinct was rejected.''
In the case of Bisbee v. Finley (6 Congressional Election Cases,
177), where 259 votes were cast at one precinct for a candidate and
only 69 were returned for him, it was said in the report: ``That any
considerable number of votes proven for one candidate in excess of the
number returned for him has always been regarded as evidence of fraud
and a legitimate method of impeaching the returns. We think it is
sufficient to exclude the return from the count without further
evidence.''
The majority give to contestant the 284 votes proven aliunde and to
sitting Member none, as he proved none.
The minority say:
The case of the contestant stands upon the testimony of Lewis alone
(for if it falls Smith's testimony must fall), which is overwhelmingly
rebutted and contradicted by no less than four witnesses.
We have, then, the sworn returns of three judges and two clerks and
one Federal supervisor and the testimony of four witnesses on the one
hand and the uncorroborated and contradicted testimony of one witness
(Lewis) on the other.
They endeavor to impeach the character of Lewis also.
The majority comment on the fact that no one of the election officers
was called to testify as to the correctness of his work, and that only
the United States supervisor gave testimony, which the majority
consider inconclusive.
The majority admitted, especially in debate,\1\ that ordinarily the
testimony of two witnesses would not be sufficient to overturn the
presumption that the officers had done their duty; but the sitting
Member had suppressed further testimony. Moreover, the affidavits of
the voters had been taken, but as they were taken after the time for
taking testimony had expired and were somewhat irregular, they had not
been brought into the record, although they were in the committee room.
The majority thus describes the suppression of testimony:
On Saturday, the 9th day of February, contestant began taking
depositions as to Third Ward of the city of Petersburg, in pursuance of
notice which contained a list of 292 names of Republicans, every one
-----------------------------------------------------------------------
\1\ Record p. 10157.
Sec. 1033
of whom it is claimed would have testified that he was a qualified
voter, and voted for Langston in Third Ward. (Record, pp. 514-516.) The
first witness sworn, M. N. Lewis, was asked by the contestee's counsel
809 questions on cross-examination, and was kept on the witness stand
from February 9 (p. 523) until February 25 (p. 588), both inclusive, a
period of seventeen days. The second witness, W. J. Smith, was sworn
Monday, February 25 (p. 588), was asked 148 cross-questions, and was
kept on the witness stand until Saturday, the 2d day of March, 11
o'clock at night, a period of six days (p. 599), when the time limited
by law for the contestant to take testimony expired, and the notary
closed the depositions. (Record, pp. 588-599.) By such wanton waste of
time contestant was robbed of the opportunity of examining a large
number of witnesses who he claims voted for him. And contestee is
estopped from claiming that the evidence of these two witnesses is
insufficient, having by his own acts prevented the taking of further
evidence in this ward.
The minority say:
The majority of the committee decide a great and important question
upon the assumption that the contestant might have proved his case if
he had not been interfered with by the contestee; they decide upon what
might have been in the record, not upon what is in it. With all due
deference we submit that this is hardly in the line of legal procedure
and even-handed justice.
(5) As to the Sixth Ward of Petersburg the report says:
The returns in this ward give Venable 352, Arnold 160, and Langston
139 votes, a plurality in favor of Venable over Langston of 213. In
this ward the negroes have a large majority and the evidence shows that
they were active and united supporters of contestant. The contestant
placed upon the stand 283 witnesses, each of whom swears that he is a
qualified and duly registered voter of the Sixth Ward, and that he
voted for contestant on November 6, 1888. Each one was cross-examined
by counsel for contestee. This dearly shows that the poll must be
rejected and the parties left to other evidence than the falsified
returns to establish their vote. The judges appointed in May for this
ward were all political opponents of contestant, and all served.
Not a vote was challenged on either side during the day of election.
Although the colored voters at this precinct stood to the white voters
in the ratio of nearly three to one, Mr. Akers and his associates
thought it fair to put up in front of the polls a barrier to separate
the negroes from the whites in two lines, one upon the right hand and
the other on the left hand, and then to receive the ballots from each
side alternately, a white man's ballot and then a negro's ballot, and
so on throughout the day, unless some colored man who wished to vote
the white men's ticket could get permission to fall in in the line of
whites. The plain consequence of enforcing such a rule is evidenced by
the fact that out of 265 registered white voters all voted except 14,
and out of 709 registered colored voters there were 308 (nearly half)
who did not vote. (Aker's deposition, Record, 831 et seq.) Consequently
when the polls were closed at sunset there stood in line at the door of
the polling place 124 Republican voters with Langston ballots open in
their hands anxious to vote and denied their right of suffrage.
After quoting testimony the majority continue:
A cross-examination commencing on February 14 and continuing until
February 22, and consuming all the time allowed by law to contestant to
take evidence in this ward, and containing 323 questions, confirms the
above, and shows that 377 voters were seen by witness to deposit
ballots for contestant. Their names were filled with the notary and are
found on pages 280 and 281 of the record. This evidence is further
corroborated by that of Richard Townes (p. 282) and J. York Harris,
member of the common council and chairman of the ward (p. 291).
The only officer of election called to sustain the returns is Mr.
Akers, one of the judges. He excuses the delay charged upon the
officers by claiming difficulty in finding names of colored men. He
says the man least familiar with the work was given charge of colored
registration book; why this particular man he does not say. He is
unable to find on the book more than two colored men in the ward of the
same name, but swears that because of the similarity of their names it
is more difficult to find colored than white voters.
It is attempted by the testimony of the witness Akers to contradict
and break down the facts established by seven witnesses called by
contestant, who were present at the polls and whom he disputes in
detail, and at least 213 individual voters in excess of those returned
for Langston, each of whom swears he voted for Langston.
Sec. 1033
Coming to this poll with 141 plurality, contestant's count must be
increased by the plurality returned against him, which is equivalent to
throwing out the poll. This adds to his total:
Vote brought forward... 141
Plurality in Sixth Ward 213
returned for Venable.
Add to this vote proved 377
for Langston.
-----
Makes a total 731
plurality for Langston
of.
Besides the votes cast, 124 colored men were by the delay of the
officers prevented from casting their ballots.
The majority also say:
It appears by the record (p. 191) that the contestant gave notice
that on the 31st day of January, 1889, he would commence to take the
depositions of 149 witnesses in addition to the 283 above referred to
as having been called and having sworn that they voted for him, whose
name were given, mostly negroes, who were expected to testify that they
were qualified voters, and that they cast their ballots for John M.
Langston. The first of these witnesses, called and sworn January 31 at
12 o'clock m., was F. N. Robinson (p. 192). His direct examination was
completed by eight questions. The cross examination began the same day,
January 31 (p. 197), and was prolonged until late in the day of the 5th
of February (p. 223)--six days--by the asking of 316 questions, nine-
tenths of which were useless, irrelevant, and frivolous, and intended
without disguise or motive only to consume time.
And then occurred an outrage without a parallel in the history of
election cases. Just as the witness answered the three hundred and
sixteenth cross-question (p. 223) he was arrested and taken into
custody by a deputy United States marshal by virtue of a warrant or
capias falsely, maliciously, and without probable cause sued out
against him by two persons, attorneys-at-law, who had, as counsel for
the contestee, appeared and participated in said cross-examination,
upon their complaint on oath that the witness refused to testify in
this case.
An examination of the record shows the absolute falsity of this
charge. The witness maintained under the most provoking and insulting
cross-examination remarkable self-possession and dignified courtesy,
and the only explanation of this outrageous conduct on the part of
contestee's counsel must be that they hoped by their perjury to
intimidate other witnesses from taking the stand to expose the frauds
by which their client obtained the certificate of election.
Having themselves stopped the cross-examination by the arrest of the
witness they impudently objected to the consideration of his testimony
for the reason that they had not had the opportunity to cross-examine
him, and for the further reason that his deposition was not signed.
The majority did not, however, count the votes which were not
deposited. After quoting evidence, they say:
It appears from the above that by the intended delay 124 voters were
prevented from casting their ballots, and that in all human probability
121 of them would have voted for contestant and 3 for Mr. Arnold. The
committee has not counted these votes for contestant, distinguishing
between this case and the case of Waddill v. Wise, decided at this
session of Congress, where a somewhat similar state of affairs was
presented in certain wards of the city of Richmond. But in Waddill v.
Wise each voter counted for contestant by the committee had been called
as a witness by contestant, and had sworn to his right to vote, and
that he would have voted for contestant had he been permitted to cast
his ballot. This supplemental proof was not furnished in this case.
The committee is, however, of the opinion that if these 124 votes
equaled or exceeded the plurality returned for the contestee, so that
the legality of the election depended upon them, it would invalidate
his election with no further proof and make a new election necessary,
and to that extent the committee agrees with the reasoning of the
report of the minority in Waddill v. Wise.
Taking this view of the case, the 124 voters prevented from casting
their ballots must be considered for the purpose of unseating the
contestee only, but can not be considered in favor of contestant's
right to his seat. The contestee's lack of a plurality would then be
the plurality found for contestant, viz, 731 plus 124 equals 855.
Sec. 1034
The minority dissent entirely from the proposition of the majority as
to the rejection of the returns, holding the evidence faulty in
character and insufficient in law.
(6) The majority discuss the question of what votes to count in
proceedings aliunde when a poll has been rejected. Their approved plan,
which they state first, is to allow only the votes proven. A second
plan, by which sitting Member would be allowed the votes not accounted
for, did not meet approval:
The committee adheres to the first of the above statements as being
the legal method of ascertaining the true vote, and uses the latter
illustrations simply for the purpose of demonstrating that in any view
of the case the contestant is elected and entitled to his seat. It is
evident that giving to contestee the vote not accounted for would be a
direct encouragement to election frauds, as it would give him the
benefit of every fraudulent vote which his friends had made it
impossible for the opposition to expose, even after the proof clearly
established fraud to such an extent as to destroy absolutely the
integrity of the official returns. In no case has such a rule been
adopted.
The majority, in accordance with their reasoning, found a plurality
of 731 for contestant, and recommended these resolutions:
Resolved, That E. C. Venable was not elected a Representative of the
Fifty-first Congress from the Fourth Congressional district of
Virginia, and is not entitled to a seat therein.
Resolved, That John M. Langston was elected a Representative of
Congress from the Fourth Congressional district of Virginia, and is
entitled to a seat therein.
The minority considered that sitting Member had at least 183 votes
more than contestant, and recommended:
Resolved, That John M. Langston was not elected a Representative in
the Fifty-first Congress from the Fourth Congressional district of
Virginia, and is not entitled to a seat therein.
Resolved, That Edward C. Venable was duly elected a Representative in
the Fifty-first Congress from the Fourth Congressional district of
Virginia, and is entitled to retain the seat he holds.
The report was called up September 9, but dilatory proceedings on the
part of the majority delayed the decision until September 23. It was
debated on September 17,\1\ On September 19 \2\ the first resolution of
the minority was rejected, ayes 9, noes 159, and then the second
resolution was also rejected, ayes 4, noes 155.
On September 23 \3\ the first resolution reported by the majority was
agreed to, yeas 151, nays 1, the Speaker noting the presence of a
quorum.
The second resolution was then agreed to without division, the yeas
and nays being refused.
So the House seated the contestant.
1034. The South Carolina election case of Miller v. Elliott in the
Fifty-first Congress.
Instance wherein the general outlines and population of a district
were considered as bearing on an election contest.
A shifting of numerous ballot boxes, done to deceive the voter, was
held to be unlawful, although not forbidden by law.
Ballots placed by the voter in the wrong box through deceptive acts
of election officers were counted by the House.
-----------------------------------------------------------------------
\1\ Record, pp. 10154-10169.
\2\ Record, p. 10243.
\3\ Record, pp. 10338, 10339; Journal, pp. 1051, 1072.
Sec. 1034
The returns being rejected, the House counted for sitting Member,
apparently somewhat as a matter of grace, the votes conceded to him by
contestant's brief.
Returns being rejected and the boxes impeached, the vote was proven
aliunde by calling the voters whose names appeared on the poll list.
Instance wherein the minority party in the course of obstruction left
the Hall in a body.
On June 20, 1890,\1\ Mr. J. H. Rowell, of Illinois, from the
Committee on Elections, submitted the report of the majority of that
committee in the South Carolina case of Miller v. Elliott.
Sitting Member had been returned by an official majority of 1,355
over contestant. Contestant alleged fraud, irregularities, etc., as
reasons for overturning this majority.
The majority report considers first the general outline of the
district, and its population, which was largely colored, and therefore
supposed to be of contestant's political party.
Then the registration law of the State is examined and pronounced
unconstitutional by the report, which concludes, however:
By means detailed by these witnesses, thousands of Republicans of the
Seventh district were deprived of such certificates of registration as
the managers would recognize. Hundreds of them went to the polls and
presented their old certificates, only to find their names stricken
from the books. Many of them were voters who had not changed their
residence, even within the precinct of their residence. Some who, after
much trouble, had secured transfer certificates, went to the polls and
found that the description copied into the precinct registry did not
agree with the description in their certificates, and so were unable to
vote.
We do not make any account of the number of these voters who failed
to get certificates and who tendered their votes, because in this case
it would not affect the result further than to increase contestant's
majority; but we hold that all such persons, otherwise qualified, were
legal voters.
The majority thus preface their examination of the first question on
which they base a ruling as to votes:
The election machinery of the State, while not so bad as its
registration laws, is still of a character which can not well be
overlooked. All the machinery of elections is in the hands of the
Democratic party. The governor appoints commissioners of election for
each county, without provision for minority representation, there being
two sets of these commissioners, one for State and the other for
Federal elections. These in turn appoint precinct managers. To these
commissioners the returns of the precinct managers are returned, to be
by them canvassed and certified to a State returning board, composed of
certain State officers. Both the county and State returning boards have
quasi-judicial powers, instead of being limited to the canvass and
certification of the vote as cast.
From seven to nine ballot boxes are required to hold an election; one
for governor and lieutenant governor, one for other State officers, one
for circuit solicitor, one for state senator, one for member of the
State house of representatives, one for county officers, one for
Representative in Congress, one for Presidential elector, and a ninth
box if any special question is to be voted on at that election.
These boxes are to be labeled according to the officers, the two
Federal boxes to be presided over by one set of managers, and the six
or seven State boxes by another set. Polls for Federal and State
elections may be widely separated. All the tickets are to be of a
specified description, and none others can be counted. The voter is
required to deposit his own ticket, and find out for himself the right
box, the managers on demand only being required to read the names on
the boxes, but there is no require-
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 2502;
Rowell, p. 507.
Sec. 1034
ment that they shall designate the boxes while pronouncing the names,
or read the names in any particular order. No other person is permitted
to speak to the voter while in the polling place. No tickets found in
the wrong box are to be counted.
This, in fact, makes an educational test, in direct violation of the
constitution of the State. Its practical operation will be seen when we
come to consider the details of this case.
In the Seventh district, except in one county, all the supervisors of
registration, all the commissioners of election, and all the precinct
managers, were Democrats, the Republicans being denied representation
on any of the boards. The only way to have watchfulness at the
election, by persons not politically hostile to contestant, was to
secure the appointment of United States supervisors, one of each party,
who, under the present law, are required to serve without compensation.
The majority found from the testimony that the boxes were so shifted
and ballots were so mixed thereby that contestant lost a thousand
votes, because these votes, being found in the wrong boxes, were
destroyed by the election managers. The report says:
It was gravely argued before the committee by an eminent lawyer that
there was nothing wrong in this shifting of boxes, and that contestee
was entitled to all the benefits accruing to him by reason of such
action. An act may not expressly be forbidden by law, but if it is done
with an unlawful purpose, and succeeds in accomplishing that purpose,
the act is thereby made unlawful.
At this election, in a large number of precincts, this shifting of
boxes was resorted to. The facts and the motive are proven beyond a
reasonable doubt.
And after citing from the testimony descriptive of the way the voters
were deceived the report continues:
This resulted in a net loss to contestant of over a thousand votes.
This account excludes from consideration all votes in those precincts
where the voters deposited the same kind of a ballot in each box, so as
to make sure that one of them would be counted, and only takes into
consideration those ballots which are shown by the number voting, the
number of ballots in the box, or by corresponding electoral ballots in
the wrong box, to have been placed in the wrong box by mistake and
against the intention of the voter.
In every instance but one the shifting of the boxes is shown. The
purpose was unlawful, the result was the failure to have counted and
the destruction of over 1,000 ballots cast for contestant by duly
qualified voters.
The managers of election took no account of these ballots,
immediately destroyed them under a claim that the law so directed (a
claim not sustained by the statute), and as witnesses almost
universally show a remarkable forgetfulness as to their number. The
United States supervisors, present at all the polls when this
destruction occurred, kept an account of the number, and by that means
we are able to ascertain with reasonable certainty the whole number
lost.
An enumeration of the precincts showed 1,049 votes lost to contestant
in excess of what were lost to sitting Member by reason of voters
mistaking the boxes. The report continues:
Making large allowance for any mistake in numbers, we add 1,000 to
the returned vote for Miller, making his vote 8,003 after this addition
and leaving Elliott's majority 355.
It will hardly be claimed by anyone that this unlawful attempt by the
partisan friends of contestee, acting as managers of election, to
disfranchise a thousand voters ought to be permitted to succeed in a
contest. Both law and justice forbid.
``If the intention of the elector can be ascertained, it is not to be
defeated merely because the inspector, through mistake or fraud,
deposits his ballot in the wrong box; nor because the elector himself,
by mistake without fraud, places it in the wrong box.'' (People v.
Bates, 11 Mich., 368.)
Here the elector placed his ballot in the wrong box by mistake, the
result of the unlawful and fraudulent acts of the managers of the
election. It is no answer to say that the counting of such ballots is
prohibited by statute (even admitting that the statute is a reasonable
regulation, which, under the
Sec. 1034
peculiar circumstances in South Carolina, we do not), when the mistaken
deposit has resulted from the active deception of the managers. It is a
crime at common law to enter into a conspiracy to commit any offense
against the purity and fairness of a public election. (Paine on
Elections, sec. 496, and authorities cited.)
The minority hold the law to be constitutional, and that the ballots
were properly rejected.
The majority report next proceeds to the examination of eight
precincts where proof was offered to show that there had been frauds in
favor of sitting Member. As a result of this investigation the majority
find for contestant a majority of 757 in the entire district, or 1,448
under strict rule as to proof aliunde.
In dealing with these frauds, which were generally in the nature of
ballot-box stuffing, the majority rejected the returns and proceeded to
proof aliunde. As an illustration of their method the following
extracts from their report are cited:
As to Jonesboro precinct:
The validity of the count and return having been destroyed each party
is left to prove his own vote, so far as he is able. Contestant proves
by calling the voters (pp. 97-124) that 67 of them, whose names all
appear on the poll list, voted for him. Under a strict rule of law the
whole return would be rejected and 67 votes allowed to contestant on
the proof. In his original brief filed with the committee contestant
conceded to contestee 46 votes, the remainder of the 113 not proven to
have voted for contestant, and for that reason, and because it is now
only a question of the amount of contestant's majority, we state the
vote as in this brief:
Elliott's vote by last 8,045
statement.
Deduct difference 22
between vote as
returned and as
stated in brief.
--------
And we have for 8,023
Elliott.
Add 22 to Miller 8,205
(8,183+22).
--------
Miller's majority. 182
Counting the vote according to the strict rule of law, under the
evidence, would make Miller's majority 228.
Also as to Eastover precinct, where no returns were made and of which
the vote was not included in the official returns:
One hundred and ninety-seven colored voters testify to having voted
for Miller (pp. 478-570). Forty-two affidavits of other voters were
filed with the committee to the same effect. These voters' names are
all on the poll list kept by the supervisor, showing 385 votes cast,
298 by colored men, 11 of which were Democratic. Aside from the
testimony of the supervisor, which shows painstaking care, there is
positive testimony taken in due process of law of 197 voters who cast
their ballots for Miller. As we have said, no return for this precinct
ever reached the county board.
J. C. Eason (332), the Democratic supervisor, confirms Johnson as to
the managers shifting the boxes, as to the whole number of votes cast,
and as to Johnson's keeping a poll list, and as to his being present
all the time and in a position to see each vote when deposited. He also
says that the colored voters in this district largely preponderate, at
least two to one, and that when the colored men vote they mostly vote
the Republican ticket. He did not keep a tally when the vote was
counted, did not keep a poll list, did not watch the tally nor notice
the names on the tickets when they were being counted; in other words,
did nothing that was required of him as a supervisor, but after the
managers had made up their return he took the tally and made his return
from that, without any knowledge whether it was right or wrong.
According to his report the vote was:
Elliott................ 262
Miller................. 87
Simmons................ 36
-----
Total.............. 385
Sec. 1035
The majority report concludes:
Other allegations are made and proof taken in regard to them, such as
failing to hold election at large Republican precincts, etc., but we do
not deem it necessary to make further comment on the record. The
frauds, false returns, and ballot-box stuffing which we have detailed
are so conclusively proven, and the true vote so well established in
the various precincts noticed, that there is left no room to doubt that
Thomas E. Miller was legally elected, and was, through the crimes of
election managers in the seventh district of South Carolina, deprived
of a certificate of election. We therefore recommend the adoption of
the following resolutions:
Resolved, That William Elliott was not elected a Representative in
the Fifty-first Congress from the Seventh Congressional district of
South Carolina and is not entitled to retain a seat therein.
Resolved, That Thomas E. Miller was duly elected a Representative in
the Fifty-first Congress from the Seventh Congressional district of
South Carolina and is entitled to his seat as such Representative.
The minority views, presented by Mr. R. P. C. Wilson, of Missouri,
discuss the evidence fully, and conclude:
We have considered all the cases in which the majority has made any
change in the vote as returned and have given our views thereon,
together with the testimony. We do not agree with the majority in their
conclusion, but conceding, for the purpose of the argument, that they
are correct in all respects excepting as to the 1,000 votes alleged to
be found in the wrong box and given contestant, still the contestee
would have a majority of 243.
We would therefore offer the following substitute for the resolutions
of the majority:
Resolved, That Thomas E. Miller was not elected a Representative from
the seventh district of South Carolina to the Fifty-first Congress.
Resolved, That William Elliott was duly elected and is entitled to
retain his seat.
On September 23 \1\ the House, without debate, agreed to the
resolutions proposed by the majority by a vote of ayes 157, noes 1.\2\
So contestant was seated.
1035. The Mississippi election case of Chalmers v. Morgan, in the
Fifty-first Congress.
Although glaring frauds and intimidation have existed, yet conceded
fairness in a portion of the district and the legal presumption in
favor of other portions have saved the seat to contestee.
Where the examination so far as made showed fraud, but not sufficient
to change the result, the House declined to presume fraud also as to
other boxes which might change the result.
After an election case is reported on by the committee, the House is
reluctant to recommit for further examination.
On June 20, 1890,\3\ Mr. John Dalzell, of Pennsylvania, presented the
report of the majority of the Committee on Elections in the Mississippi
case of Chalmers v. Morgan.
Sitting Member had been returned by a plurality of 8,161 votes, which
the report speaks of as ``four times as great as his legal plurality.''
The report also says:
The Second Congressional district of Mississippi consists of nine
counties, Benton, De Soto, Lafayette, Marshall, Panola, Tallahatchie,
Tate, Tippah, and Union. No question is made as to the
-----------------------------------------------------------------------
\1\ Record, p. 10339; Journal, p. 1072.
\2\ Incident to obstructive tactics on the part of the minority they
had left the hall and were not present to oppose these resolutions.
\3\ First session Fifty-first Congress, House Report No. 2503;
Rowell, p. 331.
Sec. 1035
honesty of the election in the two last named, and no reason has been
shown why the honest voters thereof should be disfranchised.
With respect to the other seven counties, there is a number of boxes
as to which no testimony was taken, but it may safely be affirmed that
in not one of these counties, taken as a whole, was the election an
honest one. Fraud in various forms, including intimidation of voters,
corrupt manipulation of registration, stuffing and stealing of ballot
boxes, and illegal voting, finds ample illustration in all of them.
If we may judge from the evidence, this state of things is to be
accounted for by the existence in that district of a different standard
of morals from that which is generally accepted as the correct one by
communities recognized as moral.
The report quotes evidence which it summarizes as follows:
Not to indulge in further comment on this subject, it will be
manifest to any fair-minded man who will read the testimony in this
case, that measures were resorted to in many places in the Second
Congressional district of Mississippi at the election in question, to
terrorize the colored voters and to keep them from the polls, and the
record abounds in proof that many of the colored men were prevented by
fear from attempting to exercise their right of suffrage. Nor is
evidence wanting that this is a favorite method of long standing of
``shutting down upon ``the Republican voters of this district, which up
until 1876, and prior to the inauguration of the ``shotgun policy,''
was a Republican district by a large majority.
The claim that the military company at Hernando was organized to
promote the peace is, of course, too transparent to fool even the most
credulous. The possibility that such company, openly proclaimed to be
constituted of the adherents of one political party only, and styling
themselves ``unterrified'' and ``determined,'' could exist under
authority of, and be armed by, the State of Mississippi is a disgrace
to that State.
Your committee find that there were other methods pursued in the
Second Congressional district of Mississippi ``to shut down'' upon the
Republican voters, which were in contravention of law. Among these
were--
The constitution of partisan election boards having no members other
than Democrats.
The appointment in many cases of parties on such boards to represent
the Republicans who, by reason of ignorance and illiteracy, were not
``competent and suitable men.''
The unlawful removal of ballot boxes from the polling places and from
the view of the United States supervisors.
The illegal erasure from the registration list of duly qualified and
registered voters, and the refusal to permit them to vote.
The stealing of ballot boxes.
After elaborating more fully the irregularities and frauds, the
report concludes:
Sufficient has been shown to make certain that the election methods
of the Second Congressional district of Mississippi include such as, if
continued, must prove destructive of popular government. Their
existence calls loudly for relief by law, of such a kind as shall
secure to every citizen, without distinction of race or color, his
constitutional right of suffrage.
Notwithstanding these frauds, your committee are of opinion that upon
the case as presented to them on the record, the proof does not sustain
the contestant's claim to an election, nor does it prove that the
contestee was not elected.
Applying to the evidence the well-recognized rules of law heretofore
recognized by your committee, they have in all cases, where satisfied
that the integrity of the returns had been successfully impeached, set
aside the returns and recounted the vote in accordance with the
evidence.
Pursuing this method, your committee find that the contestant was not
elected.
In two counties of the nine constituting this Congressional district,
in which counties there are 23 polling places, the election is conceded
to have been fair and honest. In the remaining seven counties there are
97 polling places. The validity of the election is assailed at 55 of
these, but not successfully, in the opinion of your committee, at to
exceed 22 or 23.
In Benton County, for example, consisting of 11 polling places, only
two are assailed, to wit, Michigan City and Lamar. No evidence has been
offered which affects the legal presumption of honesty
Sec. 1035
attaching to the 9 unassailed boxes. So, again, in Tallahatchie County
there are 14 boxes, only two of which were assailed. This is sufficient
to show that the evidence as to the assailed boxes can not affect those
unassailed.
In the opinion of your committee, following the rules of law to which
they have already given adherence, the conceded fairness of the
election in Tippah and Union counties, and the legal presumption in
favor of the unassailed boxes, must save to the sitting Member his
seat, notwithstanding the fact that glaring and reprehensible frauds
were committed in connection with his election.
Upon the case as presented, therefore, your committee feel themselves
constrained to recommend the passage of the following resolutions:
Resolved, That James R. Chalmers was not elected a Representative in
the Fifty-first Congress from the Second Congressional district of
Mississippi, and is not entitled to a seat therein.
Resolved, That James B. Morgan was elected a Representative in the
Fifty-first Congress from the Second Congressional district of
Mississippi, and is entitled to retain his seat therein.
Mr. L. C. Houk, of Tennessee, submitted his views in opposition to
the conclusions of the majority, saying:
This statement shows that at 23 boxes out of 97 the committee find
fraud enough to reduce the plurality returned for the contestee at
least three-fourths, or, to put it in figures, from 8,161 to 2,040. So
that by an examination of one-fourth of the boxes three-fourths of the
returned plurality is wiped out.
I have examined 38 boxes, where I think the validity of the election
is successfully assailed and which wipe out the total returned majority
for the contestee, and give a majority to the contestant.
After quoting from the conclusions of the majority, Mr. Houk further
says:
This contains two startling conclusions, from which I am compelled to
dissent.
First. I can never agree that there can be any ``legal presumption in
favor of the unassailed boxes'' in the seven counties, where the
committee say: ``It may be safely affirmed that in not one of these
counties, taken as a whole, was the election an honest one.''
Second. I can never agree that two little counties, casting only one-
fifth of the vote, shall control seven other counties casting four-
fifths of the vote. There were cast at this election 19,795 votes for
these two candidates, and of these 3,520 were cast in the two counties
of Tippah and Union 16,275 were cast in the other seven counties.
In these seven western counties, where the contest is made, the
contestee was returned a plurality of 6,465. Take from this three-
fourths of the returned plurality, to wit, 6,121, which the majority
report says were fraudulently returned, and it leaves to the contestee
in these seven counties a plurality of only 344, where he was returned
6,465. This practically wipes out those seven counties and gives them
no voice in the election.
* * * * * * *
The minority would be willing right here to submit this case to any
court in the country with a full assurance of obtaining a judgment on
the facts on which there is a substantial agreement. There is
substantial agreement that the contestee was returned as elected by a
plurality of 6,465 votes in the seven western counties, which, in a
fair election, are largely Republican; that at 23 boxes in these
counties 6,121 of this plurality was found to be fraudulent; that this
reduces the total returned plurality to 2,040; that in these seven
counties ``there is a number of boxes as to which no testimony was
taken, but it may be safely affirmed that in not one of these counties,
taken as a whole, was the election an honest one;'' that at these
unexamined boxes the returned plurality for the contestee is 2,266;
that, if they be rejected, it leaves a plurality for the contestee of
226; that there was a general terrorizing of Republican voters in this
district; that counsel for contestant stopped taking testimony at
Hernando to avoid bloodshed; that his counsel at Oxford, on account of
the great excitement there, did not deem it prudent to take testimony
at that place; that the taking of testimony at Holly Springs was
prevented by the refusal of the Democratic mayor to proceed, after he
had agreed to take the testimony; that the contestant exhausted his
time and took a large amount of testimony, but was delayed by dilatory
cross examinations by counsel for contestee. On this statement of
facts, on which there is a substantial agreement, we confidently ask
the judgment of the House in favor of the contestant.
Sec. 1036
The principle upon which the majority report gives verity to the
unexamined boxes is that the precinct is the unit and each must stand
or fall by itself. While this is true in Pennsylvania, it is not true
in Mississippi, where the proof shows a complete election machine.
The State board of election appoints the commissioners of each
county. The commissioners can and do disfranchise voters at their will
by erasing their names from the poll books without notice. The
commissioners appoint the inspectors; the inspectors appoint the
clerks. The clerks are the tools of the inspectors, the inspectors of
the commissioners, and the commissioners of the State board, and each
does the bidding of his master.
In conclusion, after examining the case minutely, Mr. Houk concludes:
From this it will be seen that if the unexamined boxes be rejected
and the rejected voters outside of Lafayette County be counted for
contestant, it will give him 606 plurality upon the count as admitted
to be made by the majority report. If they be added to the count, as
made by this report, it gives to the contestant 2,427 plurality by the
count leaving out Tallahatchie County, and 2,644 if Charleston box, in
Tallahatchie County, be counted according to the rule, so frequently
held by this committee, of rejecting the vote when fraud is proved, and
counting only the vote as proved by the ticket distributors to have
been issued and voted. We have given our count in detail, and we append
a tabulated recapitulation for easy reference, and we challenge anyone
to show that in making it we have departed at any box from the rules
laid down in Featherstone v. Cate, Threet v. Clarke, or McDuffy v.
Turpin. The committee acted on these rules in all these cases, and we
see no reason why we should depart from them in this case.
When the majority of the committee found fraud enough at 23 boxes to
reduce the returned plurality 6,122 votes, can it be possible that a
further examination would not have shown further fraud at the
unexamined boxes sufficient to give contestant even a greater majority
than is here counted for him?
For this House to declare the contestee legally elected, after all
the fraud shown in this report and the first sixteen pages of the
majority report, with which we agree, will be to uphold and maintain a
state of things disgraceful to our civilization and to encourage its
continuance and repetition so that it will grow with their growth and
strengthen with their strength until it becomes embedded in the
politics of that section, never to be eradicated except by revolution.
Therefore, in consideration of the premises, the minority recommended
the following resolutions:
Resolved, That James B. Morgan was not elected a Representative in
the Fifty-first Congress from the second Congressional district of
Mississippi, and is not entitled to a seat therein.
Resolved, That James R. Chalmers was elected a Representative in the
Fifty-first Congress from the Second Congressional district of
Mississippi, and is entitled to a seat therein.
The report was debated on August 18,\1\ and after debate the question
was first taken on a motion to recommit the case for further
examination. This motion was disagreed to, yeas 31, nays 136.
Then the question recurred on the first minority resolution, which
was disagreed to, ayes 11, noes 102, the yeas and nays being refused.
The second minority resolution was then disagreed to, ayes 15, noes
115.
Then the resolutions proposed by the majority were agreed to without
division.
1036. The West Virginia election case of McGinnis v. Alderson in the
Fifty-first Congress.
Criticism of a governor who issued a certificate on a canvass
omitting decisive county returns because of legal proceedings to secure
a recount.
Opinion of the Elections Committee that prima facie right wrongfully
conferred should not relieve returned Member of the burden of proof.
It is a dangerous step to disfranchise a precinct because elections
officers have failed to take the required oath.
-----------------------------------------------------------------------
\1\ Record, pp. 8758-8767; Journal, pp. 965, 966.
Sec. 1036
On July 23, 1890,\1\ Mr. John F. Lacey, of Iowa, submitted the report
of the majority of the Committee on Elections in the West Virginia case
of McGinnis v. Alderson.
Sitting Member had received his certificate from the governor of West
Virginia, on the basis of a tabulation which left out the entire vote
of Kanawha County. With that county left out, the plurality for sitting
Member was 1,313 votes.
The reason for leaving out the returns of Kanawha County were set
forth by the governor in an executive order:
Executive Department, February 28, 1889.
The governor having received from the commissioners of the county
courts of the several counties of the Third and Fourth Congressional
districts of the State of West Virginia, excepting the county of
Kanawha, certificates of the result of the vote cast at the election
held on the Tuesday next after the first Monday in November, 1888, for
Representative in the Congress of the United States, and it being
apparent, for the reasons hereinafter stated, that the returns from
Kanawha County can not now be made before the beginning of the
Congressional term on March 4, 1889, this day proceeded to ascertain
and declare the result of said election in said Congressional
districts.
The county commissioners declared the result of the election in
Kanawha County December 15, 1888. The certificate was mailed in this
city on the 17th of said month and received in this office late in the
afternoon.
On the same day a writ of certiorari was awarded by the circuit court
of Kanawha County on the petition of John D. Alderson, who claimed to
be elected to said office, against the said commissioners, and against
James H. McGinnis, who also claimed to be elected to said office. The
order awarding the certiorari provided for a supersedeas to the
judgment and decision of said commissioners upon the execution of bond,
as required by statute. The bond was forthwith executed, and said
judgment and decision suspended. A certified copy of the record in the
certiorari proceedings shows that said commissioners, in declaring the
result of the election in said county, excluded from the recount, had,
under the statute, on the demand of said Alderson, a sufficient number
of ballots in his favor to have secured his election to said office.
I have time and again personally urged counsel on both sides of this
controversy to insist upon a prompt decision by the circuit court, in
order that a final conclusion might be reached before the 4th of March
next, the beginning of the Congressional term. I can see no reason why
it should not have been done. The circuit court aforesaid on the 23d
inst. entered judgment reversing the entire proceedings and finding of
said commissioners, and remanding the cause. Upon inquiry, I find that
no steps have yet been taken for the reassembling of said commissioners
to ascertain the election result, and it is evident that such result
can not now be ascertained before the beginning of the Congressional
term.
Therefore I believe it to be my duty to certify an election on the
returns now in this office.
E. W. Wilson.
By the governor:
Henry S. Walker,
Secretary of State.
The majority report says:
It thus appears affirmatively from the record before the committee
that because of the legal proceedings referred to above the governor
certified the ``election on the returns now in this office'' on the
28th of February, 1889, although the governor had ineffectually urged
``both sides'' to secure a prompt decision from the courts.
The fact that the contestee, Mr. Alderson, had attempted to supersede
the returns by the legal proceedings gave him no right to have the
certificate, based upon a count of the district omitting the most
important county therein. The county of Kanawha cast a vote larger than
the average of three of the other counties in the district. That county
cast an undisputed majority of over 1,300 in favor of the contestant.
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 2806;
Rowell, p. 633.
Sec. 1036
A certificate of election showing upon its face that nearly 8,000
votes were wholly ignored in the count can have no binding force and
effect in a contest of this character. It is true that it has been
sufficient to entitle the contestee to sit in the House, to take part
in its organization, and to perform all the duties of a Member of
Congress, whether elected or not. But when his title is smiled in a
direct proceeding by way of a contest we think that a certificate
showing the above facts gives the contestee no superior standing over
the contestant as to burden of proof. For the purposes of the contest a
certificate which, on its face, shows that a large vote for the
contestee was wholly ignored, and giving no data from which the true
results could be ascertained, ought not to be considered as binding
upon anybody
As the governor did not decide the result and issue the certificate
upon the returns from the whole district, the first duty devolving upon
the committee was to take the returns and make a statement of the same.
The committee then show that in the district outside of Kanawha
County Alderson had a plurality of 1,313. In Kanawha County McGinnis
had, by the first count, a majority of 1,329, and therefore had in the
district a majority of 16. The correction of an error in the county of
Boone would increase this to 25 votes.
The majority say:
If these returns remain unimpeached the tables are turned and the
burden is cast upon the contestee to overcome the prima facie right
which the returns give to the contestant.
To meet this question the contestee asserts that under the laws of
West Virginia he was entitled to a recount of the ballots, and that
upon such recount in Kanawha County this result was changed and that
the contestee gained 12 votes and the contestant lost 20, making a
change of 32 votes, which would give him a majority of 7 upon the basis
above set out.
As to the recount the majority report says:
The law of West Virginia is as follows:
``They shall, upon the demand of any candidate voted for at such
election, open and examine any one or more of the sealed packages of
ballots and recount the same, but in such case they shall seal up the
same again, along with the original envelope, in another envelope, and
the clerk of the county court shall write his name across the place or
places where it is sealed, and indorse on the outside: `Ballots of the
election held at ------, the district of ------, and county of ------,'
etc.''
The law also provides that the original packages shall be sealed up
at the place of voting, as follows:
``When the said certificates are signed, the ballots shall be
inclosed by the commissioners in an envelope, which they shall seal up,
and write their names across the place or places where it is sealed,
and indorse on the outside of the said envelope as follows: `Ballots of
the election held at ------, in the district of ------, and county of
------, the ------ day of ------,' etc.''
In order to justify a recount it ought to appear that these
requirements have been complied with, or clearly shown that the failure
to comply therewith has resulted in no injury. We are constrained to
find that in the present case there was not that care of the ballots
contemplated by this statute, nor such care of the same as would
justify us in overturning the count made at the time by the judges of
the election.
The ballots of Alum Creek precinct were put in a paper package, and
the package placed in a bag and carried to the court-house, where the
bag was thrown up over a storm door at the clerk's office.
When the recount was commenced this package was found broken open, or
else it had never been sealed.
In a conflict between the first and second count it is evident that
the one or the other does not show the true result.
If every opportunity to change the ballots has been prevented, and if
the law in relation to a recount has been complied with, the recount
becomes entitled to the greater credit and should prevail. But if, on
the other hand, the ballots have been so kept that they may be readily
changed, our observation upon this committee would hardly justify us in
indulging in the conclusion presumptive that no one had been found
wicked enough to make the change.
Sec. 1037
The report points out that in other precincts there was evidence that
the ballots had been tampered with, and concludes:
We think the recount should not be considered and that the
examination of the case should therefore proceed upon the assumption
that contestant was entitled to the certificate of election, and that
he should be seated, and that he should retain his seat unless his
plurality of 25 votes shall be overcome by the investigation of the
alleged illegal votes cast for the contestant.
The majority also say as to Coalburg precinct, in Kanawha County:
At Coalburg precinct, contestant claims that the officers were not
sworn. Section 8, chapter 3, of the code of West Virginia, provides as
follows:
``The said oath shall appear properly certified on one of the poll
books of every election, and in no case shall the vote taken at any
place of voting be counted unless said oath so appears, or unless it be
proved to the satisfaction of the commissioners of the county court,
convened at the court-house as hereinafter required, that said oath was
taken before said commissioners, canvassers, and clerks entered upon
the discharge of the duties of their appointment.''
Contestee claims that this law, which in terms is mandatory, should
be held unconstitutional.
If the commissioners of the county court had counted this precinct it
would be presumed that the proof of the oath was made to their
satisfaction, as provided in the statute. (See Smith v. Jackson, 51
Cong.) It may well be doubted whether such a statute could be held to
be other than merely directory in any event. As the general result
arrived at would not be changed by excluding the Coalburg vote we
refrain from directly passing upon the question.
Whilst it might be very proper to punish the officers in some way for
violating a duty imposed by statute, it would be manifestly a dangerous
thing to disfranchise a precinct because the officers of the law
through accident, oversight, or design fail to take the prescribed oath
of office.
Such a construction would place it in the power of the officers to
have their return rejected at will if the majority should be contrary
to their political preferences.
There is some evidence to show that a part of the officers were sworn
and we do not feel willing to so construe this law as to disfranchise
the voters of Coalburg, where Mr. Alderson had a majority of 20. The
supreme court of the State has never passed upon the question.
The report then says:
Having thus reported our views upon the election and as to the right
of the contestant to the seat upon the face of the returns, we will
next review the question as to illegal voters challenged on both sides.
This is a laborious and difficult task and we have endeavored to
consider the evidence as to each particular vote.
The report proceeds to examine the alleged illegal votes, discussing
at length questions of fact. As a result they find for contestant a
majority of 30 votes, and report these resolutions:
Resolved, That John D. Alderson was not elected to the office of
Representative in Congress for the Third Congressional district of West
Virginia.
Resolved, That James R. McGinnis was duly elected as Representative
in the Fifty-first Congress for the said district and is entitled to
his seat as such Representative.
The minority views, presented by Mr. J. H. Outhwaite, of Ohio,
contend that the governor properly omitted the Kanawha vote, that the
recount was valid, and that sitting Member had a clear plurality of 174
votes.
The report in this case was not considered by the House.
1037. The Florida election case of Goodrich v. Bullock, in the Fifty-
first Congress.
Voters complying with all other requirements of the law should not be
disfranchised by the neglect of public officials to register them.
Sec. 1037
A small star placed on the ballot as the result of a conspiracy of
the printer with election officers is not a distinguishing mark
justifying its rejection.
A printer's dash between the names of candidates is not such a
distinguishing mark as to justify rejection of a ballot.
Pencil marks made by election officers on ballots in pushing them
into the box were held not to be distinguishing marks.
Very small specks on a ballot, perhaps ink mark, were held not to be
a distinguishing mark.
On August 4, 1890,\1\ Mr. J. H. Rowell, of Illinois, submitted the
report of the majority of the Committee on Elections in the Florida
case of Goodrich v. Bullock.
Sitting Member had been returned by an official plurality of 3,195,
which contestant attacked, alleging in general refusal to receive legal
votes tendered, false counting, false returns, destruction of ballot
boxes, and the commission of various other frauds by the election
officers.
The report says:
Much of the evidence in this case is directed to the misconduct of
supervisors of registration and of district registering officers. Other
portions of the evidence are directed to the misinterpretation of the
law by managers of election. The misconduct of registering officers
consisted in unlawfully striking from the books large numbers of duly
registered voters, in refusing or neglecting to restore the names
ordered to be restored by county commissioners, in keeping their
offices closed on days of registration, in unreasonably delaying
applicants, in unlawfully requiring colored applicants to prove their
places of residence by white witnesses known to the registering
officers, in unlawfully refusing or neglecting to make transfers on due
application, in furnishing unequal facilities for registration, as
between their party friends and their party opponents, and in
fraudulently registering persons not qualified.
Complaint is made, in some instances, against county commissioners
for failing to meet to revise the work of the supervisors, and to order
restored those names that had been unlawfully stricken from the books.
Managers of election unlawfully refused to receive the ballots of
colored Republican voters who were duly registered, and whose names
were on the registry books in the hands of the managers, because they
did not present their registration certificates. They also refused to
accept such certificates as proof of the right to vote of voters whose
names had been unlawfully stricken from the rolls.
They also refused to accept the tendered votes of Republicans who
were marked as having moved within the precinct in which they were
registered. In many instances this removal had not, in fact, taken
place, and when it had it did not disqualify the voter, under the law,
from voting. While the law provides for issuing a new registration
certificate to a voter who has changed his residence, either within the
precinct or to another one, it does not require such a new certificate
as a condition precedent to voting when the change of residence is
within the precinct or voting district. On the contrary, it expressly
provides that a new certificate shall be necessary if the change of
residence is from one voting district to another, thus implying that it
shall not be necessary if the change is not from one voting district to
another. Inclusio unius, exclusio alterius.
(1) In examining the case the majority ruled on a number of questions
of law:
The vote in Dade County was: Bullock 95, Goodrich 45. It is claimed
by contestant that this whole vote should be rejected, because no
registration was had in the county under the statute. It appears that
no supervisor of registration was appointed in this county until after
the election. This was not the fault of the voters, and we do not think
they should be disfranchised because of the failure of the governor to
commission a supervisor of registration, as required by law. The old
registration was in existence, and the election was held under it in
full compliance with the law, with the exception noted.
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 2899;
Rowell, p. 583.
Sec. 1037
The committee are clearly of opinion that voters complying with all
other requirements of the law can not be disfranchised by the neglect
of public officials to furnish them opportunity to register.
The minority views, presented by Mr. Levi Maish, of Pennsylvania,
hold:
There was no charge of fraud in this county, and it appears that the
vote returned was about the usual vote as cast in preceding elections.
We concur with the majority that the vote as returned from this county
should be counted.
(2) In one district of Orange County 31 ballots cast for contestant
were not counted, ``on the ground that there was a distinguishing mark
upon them. On the lower right-hand corner of these ballots was a
printed star (*), so small as not to attract attention. Careful voters,
on examining their tickets, would scarcely notice it. The ballots were
printed in a Democratic newspaper office, and the star was undoubtedly
placed there for the purpose of deception and to secure the rejection
of these ballots by the precinct inspectors. This was not such a
distinguishing mark as, under the circumstances, authorized the
inspectors to refuse to count these ballots.''
The minority views concurred in this.
Also the majority say as to district No. 2, in Hamilton County:
One hundred and four votes cast for contestant and 2 for contestee
were not counted on the ground that there was a printer's dash under
the names of some of the candidates on the tickets. We do not think
that this was such a distinguishing mark as authorized the rejection of
these ballots. One Hundred and four votes should be added to
contestant's vote and 2 to contestee's.
Also as to district No. 7 of this county:
Forty-eight votes for contestant were not counted because of a
printer's dash (--) separating each name on the ticket. These votes
should be counted. (See McCrary on Elections, 2d ed., see. 104.)
The minority say:
We also concur with the majority in holding that the 104 votes cast
for contestant and the 2 votes cast for contestee in district No. 2,
which were thrown out because there was a printer's dash under the
names of some of the candidates on the tickets, should be counted. We
do not believe that this was such a distinguishing mark as justified
the rejection of these ballots.
The same remark may be made as to the 48 votes claimed for contestant
in district No. 7.
In district No. 12, Duval County, the majority hold:
Twelve votes cast for contestant were illegally not counted, on the
ground that they were marked. There were pencil marks on the tickets
made by the judges pushing them into the box with a pencil.
The minority agree to this.
In district No. 21 the majority rule:
District No. 21.--Eight out of the 14 claimed legal voters who
tendered their votes for contestant should be counted, and 9 votes for
contestant not counted under pretense that they were marked should be
counted for him. The rejection of these 9 ballots was on the ground
that there was a printer's dash on the ticket in a place where no
person was named for a particular office.
The minority concur in this.
As to district No. 8, also of Duval County, the majority hold:
Twelve of the 14 claimed legal voters were duly qualified, tendered
their votes for contestant and were rejected, and 13 ballots for
contestant were illegally rejected on the claim that they had some
specks on them. One Democratic ticket was rejected in the same way. One
witness testified that he could discover nothing on them, another that
there appeared to be small ink spots. These tickets ought not to have
been rejected.
The minority concur in this.
Sec. 1038
1038. The case of Goodrich v. Bullock, continued.
A mandatory law providing that writing on a ballot should be in black
ink; may colored ink be used by an honest voter who can obtain no
other?
Discussion as to the counting of ballots cast at outside polls by
voters fraudulently prevented from voting at the regular polls.
Discussion as to counting votes cast at an election adjourned by the
officers, for fear of outrage, from the legal place to another.
As to evidence on which votes may be proven aliunde when the ballot
box has been taken by armed force and witnesses are intimidated.
As to proving a vote aliunde by testimony of a United States
inspector who distributed tickets and saw them voted.
(3) As to color of ink used in writing names on the ballot, the
majority held:
In Fauntville precinct, Marion County, 83 ballots for contestant were
thrown out on the ground that names on the ticket for justice of the
peace and constable were scratched off and other names written on in
red or purple ink. Persons desiring to vote for these officers applied
at the only store in the place for ink and could only get the kind of
ink used in scratching these tickets, and hence the use of the red or
purple ink. The committee do not think that under the circumstances
these voters should be disfranchised, notwithstanding the terms of the
statute, as the marking was not done for any improper or unlawful
purpose and the use of this ink was, in a manner, compulsory. The
committee count the 83 votes for contestant. (See McCrary on Elections,
secs. 400, 401, 404.)
The minority dissent from this.
We differ from the majority in holding that the 83 ballots for
contestant at Fauntville precinct, thrown out because certain names
were written in red ink, should be counted. It appears from the
testimony that the inspectors were unanimous in the rejection of those
ballots; that it was not known at the time of their rejection whether
they had on them the names of the Democratic or Republican candidates,
and they were rejected solely for the reason that they were written in
red ink. Section 23 of the Florida election laws of 1887 provides as
follows:
``The voting shall be by ballot, which ballot shall be plain white
paper, clear and even cut, without ornaments, designation, mutilation,
symbol, or mark of any kind whatever, except the name or names of the
person or persons voted for and the office to which such person or
persons are intended to be chosen, which name or names and office or
officers shall be written or printed, or partly written and partly
printed, thereon in black ink or with black pencil, and such ballot
shall be so folded as to conceal the name or names thereon, and so
folded shall be deposited in a box to be constructed, kept, and
disposed of as hereinafter provided, and no ballot of any other
description found in any election box shall be counted.''
(4) As to ``side boxes'' the majority say:
In Marion County large numbers of duly registered voters were
unlawfully stricken from the registration lists by E. M. Gregg,
supervisor of registration, in reckless disregard of the law, and, as
your committee believe, with the deliberate and criminal purpose of
depriving the Republican voters of the county of their rights.
After enumerating the numbers of those stricken from the registration
lists, the majority continue:
These 466 rejected voters in Marion County had all been duly
registered. Some 366 of the number had their names stricken from the
registry rolls just previous to the election. The supervisor of
registration refused to allow the Republican campaign committee to have
a copy of the registration list, or to inspect the list. He also
refused to restore names that he had stricken from the rolls, after
having been ordered by the county commissioners to restore them. He
closed his office on the day before election, and thus prevented a
large number of applicants from obtaining transfer certificates. He
refused to submit his registration books to the county commissioners,
as the law required.
Sec. 1038
These 466 duly qualified voters appeared at their proper polling
places and tendered their votes for contestant, which votes were
rejected. The names of 100 of them were still on the registry lists,
and yet the precinct inspectors rejected the votes, either saying that
they could not find the name on the registry, or setting up some
frivolous pretext for rejection. Voters duly registered were required,
in violation of law, to present their registration certificates.
Others, who presented registration certificates, were rejected because
their names had been stricken from the registry. The illegal action of
Supervisor Gregg can not be permitted to disfranchise these voters.
Most of the tickets in these various precincts were preserved in
Republican side boxes, and the names of the various voters so
disfranchised, with the pages of the record establishing their right to
vote, and the tender of their ballots, will be found on pages 15 to 28
of contestant's brief.
These 466 rejected votes, added to the 83 votes not counted in
Fauntville, make 549 votes to be added to contestant's vote in Marion
County.
The minority say:
As to the ``side boxes'' referred to in the testimony of Monroe,
Tidwell, and Robinson, we submit that they were used without any
authority of law, and that the so-called returns made from them are
entirely worthless for the purpose of setting aside the official
returns made from the ballot boxes provided by law and by the sworn
officers of the election. We call attention to the testimony of E. M.
Gregg, supervisor of registration, as a complete refutation of the
charges preferred against him, and as showing that he made no
discrimination whatever between Republicans and Democrats in the
discharge of his official duties.
In Columbia County ballots tendered by qualified voters who were duly
registered were refused. In one precinct these rejected ballots were
received and preserved by the county judge, and in another case by the
United States inspector. The majority of the committee decided to count
these ballots.
(5) At Cherry Lake district, in Madison County, the regularly
appointed inspectors of election (all of sitting Member's party)
appeared at the polling place but declined to hold an election, having
in some way received warning of an intended raid on the ballot box.
Thereupon the voters present proceeded to elect a board of inspectors.
These inspectors refused to hold the election at the place, fearing
danger, and so adjourned the election to a point three-quarters of a
mile distant. The members of sitting Member's party refused to
participate, although they had due notice of it. The majority say:
One hundred and thirty-one votes were cast for contestant, canvassed,
and duly returned to the supervisor of elections for the county, but
the canvassing board of the county refused to consider the return. It
was the fault, first, of the Democratic election inspectors, and,
second of the Democratic voters themselves, that the few Democratic
votes there were in the precinct were not cast. The committee count for
contestant the 131 votes cast for him in this precinct.
The minority hold:
Whatever may be thought of the reasonableness of the apprehension of
personal danger, which they evidently felt, and their failure to
perform the duties required of them by law, we submit that the vote
claimed for the contestant at this precinct can not properly be counted
for him. There was no election held in this precinct. The persons who
undertook to conduct an election had no authority whatever to open
polls at a place different from that appointed by law, and the
Democratic voters, well knowing that fact, declined to recognize or to
participate at all in the so-called election. The provisions of law
which fix the time or place of holding elections are to be construed as
mandatory and not as merely directory. The reason for this is obvious.
Every voter is presumed to know the law, and to be thereby informed as
to the time when and the place where he may deposit his ballot; but if
that time or place be changed without proper authority and due notice,
no voter can be held as legally bound to take notice of the change.
(See McCrary on American Law of Elections, sec. 114.)
Sec. 1038
(6) At Madison precinct, in Madison County, it appeared that an
election was duly, held as provided by law, and 615 votes were cast. At
the close of the polls, apparently with the connivance of the election
officers, who were of sitting Member's party, the ballot box was
forcibly taken away by armed men. No count was made and no return. It
appeared that there was a side election, held at the same poll by
members of sitting Member's party only, to take the sense of the party
as to whom the governor should appoint county commissioner. A total of
210 votes were cast at this side election. The majority say:
Presumably all, or nearly all, of the Democrats voting in the
precinct voted at this side box. There is evidence that some four did
not. Inasmuch as the party friends of contestee destroyed the evidence
of the result of the election at this precinct, and because of the
disturbed condition in the county at the time this contest was pending,
making it dangerous to attempt to take testimony in the county, the
committee take the result at the side box and the other evidence in
regard to the vote as the best evidence attainable as to the result at
this precinct. Accordingly, they count 210 votes for contestee and 405
votes for contestant.
The minority say:
As to Madison district No. 1, the testimony shows that the ballot box
and ballots were taken and carried away about 10 o'clock at night while
the inspectors were in the act of canvassing the votes. No return
whatever has been made from this district, and yet the contestant's
attorney claims that of the 615 votes said to have been cast, 206
should be counted for contestee and 409 for contestant. The best
evidence would of course be that of the voters themselves, but instead
of producing that, an effort is made to show the Democratic vote by
proving the number of votes cast for county commissioners at an
informal election held on the same day. We submit that according to
contestant's own testimony the vote given for the county commissioners
can not be accepted as a fair test of the Democratic strength in that
precinct, while the testimony of contestee shows that very little
interest was felt by the Democrats in that matter, and that a great
many of them would not vote because they regarded it as a farce.
At Hamburg district, also, there occurred a similar raid, of which
the majority report says:
At this district an election was held in an orderly manner, but just
before the closing of the polls an armed body of mounted men, variously
estimated at from 44 to 90, rode down upon the polls and seized and
carried away the ballot box. They were white men and friends of
contestee. The evidence shows that 259 Republicans voted there that
day. There is no evidence as to what the Democratic vote was. The
committee accordingly count 259 for contestant.
(7) The majority also adopted a rule, as follows, in determining the
votes cast at two polls:
Elaville district No. 2.--The returns from this district gave
contestant only 29 votes. J. H. Stripling, United States supervisor,
was refused admission to the polling place by the precinct inspectors,
which refusal discredits the return. Being refused permission to act as
United States supervisor, he took his place outside of the polling
place, distributed Republican tickets, and kept account of the number
voted. From his evidence it appears that 97 instead of 29 Republican
votes were cast for contestant. No attempt is made to refute or
discredit this testimony and the unlawful action of the inspectors of
election leaves it as the only valid evidence of the vote. Counting the
vote, however, as claimed in contestant's brief, which is the method
most liberal to contestee, the committee add 68 to contestant's vote
and deduct a like number from the vote of contestee.
Macedonia district.--In Macedonia district No. 11, 29 votes only are
returned for contestant. The proof shows that he received at least 65
votes at this poll. The committee add 36 to contestant's vote and
deduct a like number from that of contestee, following the liberal
method of counting conceded in contestant's brief.
Sec. 1039
(8) Certain questions of fact were also discussed.
In accordance with their reasonings the majority found for contestant
a majority of 337 votes in the district and recommended resolutions
seating him.
The minority found a majority of 2,808 for sitting Member and
recommended resolutions confirming his title to the seat.
This report was not considered by the House.
1039. The Mississippi election case of EIM v. Catchings in the Fifty-
first Congress.
The Elections Committee held that wherever a United States inspector
was prevented from performing his legal duties at the poll the return
should be rejected.
Ex parte affidavits are not considered in an election case, although
they would be decisive if admitted.
In a district shown to be permeated by fraud and intimidation the
contestant must still show sufficient effects to change the result.
Should participation of returned Member in a scheme of intimidation
relating to the election cause the seat to be vacated?
On February 25, 1891,\1\ Mr. J. H. Rowell, of Illinois, submitted the
report of the majority of the Committee on Elections in the Mississippi
case of Hill v. Catchings.
Sitting Member had been returned by an official majority of 7,011.
After stating that the district was naturally Rebublican, the report
goes on to say:
The committee, however, are of opinion, from the evidence presented
to them, that T. C. Catchings was elected by a majority of all the
legal votes cast, but by a much less majority than was returned for
him. He was popular with his party, was believed to be especially
efficient in representing the interests of his district, and to be able
to do more in the way of securing Government aid in protecting the
lands of the district from the ravages of the Mississippi River than
was his opponent. He was stronger than his party and was supported in
some parts of the district by influential colored Republicans. In
addition his party was well organized and more fully registered than
the opposition.
Mr. Hill was popular with the colored Republicans in most of the
district, but failed to secure the active support of the white
Republicans. In a portion of the district his adherents were not
organized and in only a small portion of the whole district did he have
that kind of effective organization which would enable his followers to
poll anything like a full vote.
In reporting that contestee was duly elected, as shown by the
evidence, we by no means mean to be understood as saying that the
election as a whole was free and fair. On the contrary, we are
satisfied that preparation was made to commit fraud if necessary to
secure the election of contestee and that in some instances the
preparation ripened into action. By the statutes of Mississippi the
election machinery of the State is primarily in the hands of the
governor, lieutenant-governor, and secretary of state. Previous to each
general election these State officers are required to appoint three
commissioners of election for each county, not all of whom shall be of
the same political party. These commissioners appoint the precinct
inspectors, with a like limitation as to party affiliation.
Such a statutory provision for allowing opposing parties to have
representation on all election boards having charge of the conduct of
elections is usually deemed necessary to secure honest results, and
when fairly executed in letter and spirit may as a rule be relied on,
at least so far as counting and returning the vote is involved. A
general and willful disregard by the appointing power either of the
letter or spirit of the law raises a strong presumption of an intent on
the part of the appointing officers to afford opportunity for fraud. In
this case it clearly appears that the State officers in appointing
county commissioners intentionally disregarded the spirit of the law,
and in some instances violated
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\1\ Second session Fifty-first Congress, House Report No. 4005;
Rowell, p. 803.
Sec. 1039
its letter. In like manner the county commissioners quite generally
violated the letter and spirit of the law in appointing precinct
inspectors, Republican committees were ignored, their wishes
disregarded, and their recommendations rejected.
While the statute does not direct how these appointing bodies shall
make selections, its spirit clearly requires that in selecting
representatives of the different parties the wishes of those
representing the party organization shall be considered, and that the
appointees shall be men having the confidence of their political
associates. The selection of men to represent a political party on an
election board who habitually vote the opposite ticket, who are not
trusted in their party, or who are notoriously incompetent, is not a
compliance either with the letter or the spirit of the statute. We are
glad to note some honorable exceptions to the general rule in this
district, in the selection of precinct inspectors, and to commend the
effect in producing confidence in the returns from such boards.
In a majority of the precincts, about which evidence was taken, we
find that the precinct inspectors appointed to represent the
Republicans were either Democrats in fact, or were incompetent and
untrustworthy. While suspicion attaches to all such precincts, such
suspicion is not sufficient to invalidate the return, in the absence of
other evidence, but it does have the effect of requiring less evidence
to overturn the prima facie correctness of the returns. In regard to a
few of the precincts this evidence is not wanting, while in others
there is an entire absence of evidence tending to impeach the validity
of the returns. In some instances there is affirmative proof sustaining
the correctness of the returns.
In several large Republican precincts no elections were held, and it
is manifest that the neglect to hold elections was intentional and for
the purpose of depriving contestant of the votes which he otherwise
would have received. In one instance the poll books were carried off to
prevent the holding of an election. While there is some conflict in the
evidence, we are convinced that the whole matter was arranged at a
Democratic meeting the night before the election.
In district No. 2, Sharkey County, Hill received 129 votes and
Catchings 25. When the returns came in the vote was found to be
reversed. All the inspectors of the election testify to the correct
returns, and are at a loss to explain how the change took place. The
error is conceded. The committee have no doubt that the change was
intentionally made by some one connected with the election. In five or
six instances United States supervisors were prevented from discharging
their duties according to law, either by being refused admission to the
polling place, or by being prevented from witnessing the count, or by
the removal of the ballot box from their presence.
In every instance where a United States supervisor is prevented from
discharging his duties, as provided by statute, the committee hold that
such fact destroys the validity of the return and requires its
rejection, leaving the parties to prove the vote by other competent
evidence.
After allowing such correction of the vote as the evidence requires,
and after rejecting all the returns which have been proved to be
untrustworthy, and even conceding to contestant such majority as he
might have received in the districts where no election was held, there
is still left to contestee a good majority.
After quoting instructions issued by the chairman of the district
committee in relation to treatment of Federal supervisors, the report
goes on:
This was not only a direction to violate the United States statute,
but was in other respects calculated to cause a breach of the peace and
prevent an orderly election. Had this advice been generally followed
the committee would reject all returns of elections held under such
circumstances.
Ex parte affidavits were filed in the case by contestant, which, if
considered by the committee, would materially change the result; but
the committee find nothing in the record to justify the resort to this
kind of proof, and reject all the affidavits as not being legitimately
in the record.
After the election and pending the contest General Catchings, the
contestee, wrote a letter to Chairman McNeily, in which occurs the
following language:
``After his (Hill's) time is out we have so many days in which to
take testimony, and will have to give him similar notice. I do not
think it would hurt at all if one or two of them should disappear. It
might have a very happy effect on Hill, his witnesses, and lawyers.''
General Catchings filed the following written acknowledgment with the
committee, submitting the above quotation from his letter:
``The following extract from a letter written to J. S. McNeily,
chairman Congressional committee, Third Mississippi district, by Hon.
T. C. Catchings, contestee, under date December 28,1888, is admitted
Sec. 1039
as having been written and delivered to J. S. McNeily, chairman
Democratic Congressional committee, Third Mississippi district, and is
admitted in evidence in this case by agreement.
``T. C. Catchings,
``James Hill,
``Per Dudley & Thomas,
``Attorneys for Contestant.''
The language speaks for itself. It was a suggestion to hinder
unlawfully the taking of testimony in the case. Had the advice been
acted upon the committee would have had more difficulty in reaching the
conclusion that contestee was elected. But so far as appears in the
evidence the suggestions of the letter were not acted upon in any
instance, and it is a reasonable conclusion that they were not approved
by Chairman McNeily. Such suggestions, coming from a reputable source,
but emphasize the truth of the charge that the public sentiment of the
dominant race in this district is hostile to the exercise by the
colored voter of the rights granted him by the Constitution, and looks
with leniency upon crimes against the purity of the ballot box.
So the majority conclude that after making all legitimate deductions
required by the evidence, sitting Member still had a majority of the
votes, and they recommended resolutions confirming his title to the
seat.
Mr. John F. Lacey, of Iowa, submitted the following minority views:
The report of the majority of the committee concedes that the
district has a large Republican majority. The majority report further
concedes that there were gross frauds, and that when these frauds are
eliminated from the count the majority of the contestee would be
greatly reduced. I will not recite these frauds fully, as they are for
the purpose of this report sufficiently set out in the report of the
majority.
It appears, however, that in selecting the officers to hold the
election neither the letter nor spirit of the law was complied with,
and the Republican party had no fair representation upon the election
boards. In some precincts where there was a Republican majority no
election was held. The returns showing a majority for Hill were
fraudulently reversed, showing a like majority for the Democratic
nominee. Federal supervisors were interfered with in the discharge of
their duties. In short, there were frauds of various kinds, materially
affecting the result, but the evidence does not show enough in detail
to change the result and give a majority for the contestant.
Mr. Hill contended that the occurrence of certain political murders
and outrages in other localities justified him in not incurring the
danger of taking further testimony in his case, and that if the
evidence had been fully taken his election would have been clearly
shown. That his fears were not groundless is shown by well-known bloody
occurrences which have startled the whole country. But I agree with the
majority in their conclusion that the contestant has not introduced
enough testimony to show that he did in fact receive a majority of the
legal votes cast. This, however, leaves for discussion the question as
to whether enough has been shown to require that the election should be
held void.
I think that the law ought to be held as follows:
Where the friends of a successful candidate, without collusion or
combination with such candidate engage in fraud, bribery, intimidation,
or other violation of law to influence the election, and the number of
votes affected thereby is insufficient to change the result, the
election will not be invalidated thereby; but if such candidate takes
part in such wrongs, or confederates with those engaged therein, and it
does not appear that the election has been changed in its results
thereby, the election should be held void, and a new election ordered.
The question as to the effect of connivance with or participation in
such wrongful acts by a candidate is one in which the law ought to be
clearly laid down and unhesitatingly enforced.
I concede that the preponderance of the authorities hold to the
effect that such acts upon the part of the contestee will not render
the election void unless it appears affirmatively that such unlawful
acts changed the result. The effect of bribery in parliamentary
elections has been settled by statute in Great Britain, and renders the
election void although the votes affected were insufficient to change
the result. The interests of good government and the importance of
purity of elections require that the rule should be laid down and
enforced against every candidate that he should not participate in or
incite any violations of the laws under which the election is held.
Sec. 1040
Whilst a candidate should not be held accountable for the acts of his
partisans, committed in the heat of a political campaign, yet he should
be held to instigate or participate in such acts at his peril. He
should understand that in case of his instigation of violations of the
law or of his participation in such violation he shall not be permitted
to hold his seat. A contestant should not be compelled to prove just
how many votes were affected by such wrongful acts of the contestee in
order to have the election declared void. The full effect of such
wrongs may often be hard to prove. The sitting Member should have his
skirts clear of all participation.
In order to give the seat to the contestant, it should be necessary
to prove that the results were changed by the transactions in question,
but to unseat the participant a less amount of proof should be
sufficient.
A vigorous contest was made in this district, which was naturally a
Republican stronghold. The contestant and the contestee took, an active
interest and participated in the campaign pending the election. It is
not probable that any widespread and obviously preconcerted violation
of the election law, such as is shown, should have occurred against the
wishes of the contestee.
But after the election, and while the contest was in progress, it
appears that the contestee wrote the chairman of his party a letter in
which appears the following language:
``After his (Hill's) time is out we have so many days in which to
take testimony, and will have to give him similar notice. I do not
think it would hurt at all if one or two of them should disappear. It
might have a very happy effect on Hill, his witnesses, and lawyers.''
In the light of the deplorable events which have occurred in some
parts of Mississippi in connection with elections and election
contests, it is unnecessary to discuss the full scope and meaning of
this letter. The language is of contestee's own choosing and speaks for
itself. General Catchings had a full opportunity to explain this letter
before the committee, but wholly failed to avail himself of that
opportunity. He argued his own case in person, and when the letter was
read to the committee an opportunity was given him to contradict or
explain, but he did not see fit to do so.
Does the fact of writing such a letter, under the circumstances,
sufficiently connect the contestee with the various frauds described in
the majority report? I think it does. Where the recipient of the
benefits of such a fraud not only accepts its advantages, but attempts
to suppress the testimony of the crime, such attempted suppression, or
attempted suppression when unexplained and uncontradicted, ought to be
regarded as sufficient to show the contestee's original connection with
these various wrongs. The frauds are general and widespread, the party
of the contestee were acting in concert, and a just suspicion will
always attach to a leader where his followers are so generally guilty
of offenses against fair elections. But when such acts are followed by
active attempts at suppression of the evidence, such as appears in the
letter to McNeily, the inference is irresistible. Taking the letter of
the contestee into consideration, in the light of all the surrounding
circumstances, the conclusion follows that the contestee is responsible
in some degree for the acts of his party and partisans, as set out in
the majority report.
The seat ought, therefore, to be declared vacant and an election
stained with so much fraud and corruption ought to be set aside. I
recommend the adoption of the following substitute for the resolution
reported by the majority:
Resolved, That T. C. Catchings was not elected as Representative in
the Fifty-first Congress from the Third Congressional district of
Mississippi, and that the seat is hereby declared vacant.
This report was not considered by the House.
1040. The Mississippi election case of Kernaghan v. Hooker, in the
Fifty-first Congress.
Although widespread frauds are shown in a district, yet contestant
must show that they affect enough votes to change the result.
On February 25, 1891,\1\ Mr. J. H. Rowell, of Illinois, submitted the
report of the Committee on Elections in the Mississippi case of
Kernaghan v. Hooker.
The report begins:
At the election held in the Seventh Congressional district of
Mississippi on November 6, 1888, Henry Kernaghan and Charles E. Hooker
were the Republican and Democratic candidates, respec-
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\1\ Second session Fifty-first Congress, House Report No. 3991;
Rowell, p. 785.
Sec. 1040
tively, for the office of Representative in Congress. According to
the declared result of the election, Hooker received 8,491 majority.
In due time, and in accordance with law, Kernaghan filed his notice
of contest, alleging, in substance, that the commissioners of election
in the several counties of the district were not appointed, as provided
by law, by the governor, lieutenant-governor, and secretary of state,
but were, in fact, appointed by one D. P. Porter, deputy secretary of
state and chairman of the Democratic executive committee of the Seventh
Congressional district; that in making such appointments the
recommendations of the Republican executive committees were ignored and
boards were appointed either composed entirely of Democrats or with a
Republican minority member who could be controlled by his Democratic
associates; that in appointing precinct judges the county commissioners
of election, in violation of law, either appointed boards composed
entirely of Democrats or with one illiterate Republican; that in
holding the election fraudulent registrations were made, false counting
resorted to, ballot boxes stuffed, United States supervisors prevented
from discharging their duty, violence and intimidation resorted to keep
voters from the polls, and that other like frauds were prevalent, with
the result of changing a majority for contestant into a minority.
Answer was duly filed by Hooker denying the charges, and testimony
was taken by both parties upon the issues joined.
While the committee have reached the conclusion that upon
consideration of the whole evidence, and restating the result so far as
the evidence enables us to do so, contestee has remaining a majority of
the votes cast, yet the facts developed in the evidence are such as to
require more than a formal report.
After reviewing questions of fact as to irregularities in various
counties, the report concludes:
Irregularities of a similar character took place in other precincts
of this county. Precinct inspectors asked for by the Republican
commissioner of elections to represent the Republicans on the election
boards were refused, and taking into consideration all the evidence the
committee are convinced that frauds sufficient to invalidate the
returns were committed in the precincts noted and some others in this
county, but, inasmuch as these frauds do not affect a sufficient number
of votes to overcome the majority returned for contestee, the committee
do not attempt to restate the vote in full, and determine what
reductions ought to be made from contestee's returned majority.
Taken altogether the record discloses a deplorable condition of
affairs in the Seventh Mississippi district, such as can neither be
excused nor palliated. For the reason that the frauds developed in the
evidence and described in this report are insufficient in amount to
overcome all the majority returned for contestee, the committee
recommend the adoption of the following resolutions:
Resolved, That Henry Kernaghan was not elected a Representative in
the Fifty-first Congress from the Seventh Congressional district of
Mississippi, and is not entitled to a seat therein.
Resolved, That Charles E. Hooker was elected a Representative in the
Fifty-first Congress from the Seventh Congressional district of
Mississippi, and is entitled to retain his seat therein.
This report was not acted on by the House.