<DOC>
[Hinds Precedents -- Volume I]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:hinds_xxiv.wais]
Chapter XXIV.
ABATEMENT OF ELECTION CONTESTS.
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1. House decides as to. Sections 731-738.
2. Various conditions of. Sections 739-755.\1\
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734. The Tennessee election case of Kelly v. Harris in the Thirteenth
Congress.
Although a contestant declined to prosecute further, the House
declined to let the case abate and concluded the inquiry.
On May 31, 1813,\2\ the Committee on Elections reported in the
contested-election case, of Kelly v. Harris, from Tennessee, and the
House, acting on the suggestion of the committee, gave the sitting
Member three months in which to procure testimony.
On December 2, the contestant having declined to reappear to contest
the case, the House determined not to abate the inquiry into the
alleged illegality and recommitted the report of May 31, with such new
evidence as might be offered, to the Committee of Elections.
On January 3, 1814, the committee made a report which, after quoting
the constitution of Tennessee in respect to the qualifications of
voters, decided that a certain vote had been given the petitioner in
violation of this constitution, and therefore deducted the said vote.
This, with the deduction of a vote given by a minor, led the committee
to the conclusion that the sitting Member was entitled to his seat.
On March 10, 1814, the House concurred in this report.
735. The South Carolina election case of Mackey v. O'Connor in the
Forty-seventh Congress.
The returned Member having died before the taking of testimony in a
contest was completed, the House held that the contest did not
therefore abate.
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\1\ By resignation of sitting Member. Section 805 of this volume.
Contest not abated by death of contestant. Section 1019 of Volume II.
Contestant's acceptance of State office made incompatible by State
constitution does not cause to abate. Section 1013 of Volume II.
Form of resolution permitting contestant to withdraw. Section 967 of
Volume II.
\2\ First session Thirteenth Congress, Contested Elections in
Congress, from 1788 to 1834, p. 260.
Sec. 735
A vacancy in a contested seat being filled by a special election, the
House seated the new Member on his credentials, but held that his final
right must depend on the issue of the contest.
On April 10, 1882,\1\ Mr. Samuel H. Miller, of Pennsylvania, from the
Committee on Elections, submitted the report of the majority of the
committee in the South Carolina case of Mackey v. O'Connor.
The minority views, presented by Mr. Samuel W. Moulton, of Illinois,
give the following statement of the preliminary facts:
In November, 1880, E. W. M. Mackey and M. P. O'Connor were opposing
candidates for Congress in the Second Congressional district of South
Carolina, and as the result of the election then held M. P. O'Connor
was declared elected by the State board of canvassers, and received the
usual certificate of such election, which was duly filed with the Clerk
of the House of Representatives. Mr. Mackey contested the election of
Mr. O'Connor in the usual form, and in the taking of testimony in such
contest, by an agreement of which both parties availed themselves, all
limitations as to time were expressly waived, so that the taking of the
testimony was protracted over a much longer period than the term
allowed by the statute, and before the taking of Mr. O'Connor's
testimony was completed he died, on April 26, 1881.
The majority report says:
After the testimony in chief of Mr. Mackey, and that in reply of Mr.
O'Connor had been taken, Mr. O'Connor died.
This slight difference between the two statements was noticed in the
debate, but did not figure importantly.
The minority statement of fact goes on--
On May 23, 1881, the governor of South Carolina, in accordance with
the provisions of the Constitution of the United States, issued his
writ of election to fill the vacancy in the representation in Congress;
and at the election held thereunder, on June 9, 1881, Samuel Dibble was
elected, receiving his credentials June 22, 1881, and the same being
filed with the Clerk of the House of Representatives on June 25, 1881.
Mr. Mackey, the contestant of the late Mr. O'Connor, did not serve
any notice of contest of Mr. Dibble's election; but proceeded after the
death of Mr. O'Connor, and before the election of Mr. Dibble, in taking
testimony in the case of Mackey v. O'Connor; and the record as now
filed and printed embraces testimony on both sides so taken after Mr.
O'Connor's death and before Mr. Dibble's election.
On December 5, 1881, the House met, and Mr. Dibble, on the call of
the roll, presented himself to be sworn. Objection was made by a Member
of the House, who stated to the House the general circumstances of the
case, and after calling the attention of the House to the fact that Mr.
Mackey had served no notice of contest upon Mr. Dibble, offered the
following resolution, viz:
``Resolved, That the certificate of election presented by the Hon.
Samuel Dibble, together with the memorial and protest and all other
papers and testimony taken in the case of the contest of E. W. M.
Mackey v. M. P. O'Connor, now on file with the Clerk of this House, be,
and the same are hereby, referred to the Committee on Elections, when
appointed, with instructions to report at as early a day as practicable
whether any vacancy as alleged in the certificate existed, and as to
the prima facie right or the final right of said claimants to the seat
as the committee shall deem proper; and neither claimant shall be sworn
until the committee report.''
Whereupon the House, after discussion, laid the resolution on the
table; and also laid on the table a motion to reconsider its vote
thereon.
Mr. Dibble then presented himself at the bar of the House, and was
sworn, without further objection, and from that time until December 21,
1881, occupied his seat as a Member of the House without challenge or
dispute.
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\1\ First session Forty-seventh Congress, House Report, No. 989; 2
Ellsworth, p. 561.
Sec. 735
Two preliminary questions, of so much importance as to obscure
largely the merits of the election itself, arose in considering this
case--
(1) The majority report so states the first question, relating to the
validity of the contest itself--
At the commencement of the hearing, the sitting Member protested
against the committee taking any action whatever upon the case, on the
ground that the contest of Mackey v. O'Connor abated on the death of
Mr. O'Connor, and that the House had no longer jurisdiction of that
case. He contended that inasmuch as he was not a party to the pleadings
or proofs, he should not be bound or affected by either; that the only
way the title to his seat could be assailed was by commencing
proceedings de novo and permitting him to defend Mr. O'Connor's claim.
In the opinion of the committee this position is utterly untenable.
The contestant, Mr. Mackey, bases his claim upon the ground that he,
and not Mr. O'Connor, received the greatest number of legal votes at
the general election held November 2, 1880. To establish his claim, the
provisions of the statute regulating the mode and manner of contesting
an election were invoked and complied with. Notice of contest was duly
served upon Mr. O'Connor, who, in turn, put in an answer thereto, and
upon the issue thus made up a large mass of testimony, as heretofore
stated, was taken.
The right of the contestant, as also of the people of that
Congressional district, who, after all, are the real parties in
interest, to have the facts of that election inquired into and
adjudicated by the House, can not be changed by the fact of the death
of the contestee. If the contestant really received at that election,
as he claims, the largest number of legal votes, it is his right and
the right of the people of that district that he be awarded the seat he
was chosen to fill. The committee, however, are of opinion that Mr.
Dibble, if elected to any position, was elected to fill the vacancy
created by the death of Mr. O'Connor, and for his unexpired term.
This conclusion is emphasized by the significant language used in the
proclamation of the governor ordering the special election by virtue of
which Mr. Dibble claims the seat. It is as follows:
``State of South Carolina, Executive Chamber,
``Columbia, S. C., May 23, 1881.
``To the commissioners of election and the managers of election for the
counties of Charleston, Orangeburg, and Clarendon, composing the Second
Congressional district of the State of South Carolina:
``Whereas a vacancy in the representation of the said Second
Congressional district in the House of Representatives of the United
States of America has happened by the death of Michael P. O'Connor,
who, at the general election held November 2, A. D. 1880, was chosen a
Member of said House of Representatives for said Congressional district
for the term of two years from March 4, A. D. 1881; and whereas the
Constitution of the said United States in such cases requires the
executive authority of the State to issue a writ of election to fill
such vacancy:
``Now, therefore, you and each of you are hereby required to hold an
election in accordance with the laws for holding general elections for
a Member of the said House of Representatives for the said
Congressional district, to serve for the remainder of the term for
which the said Michael P. O'Connor was elected; the polls to be opened
at the various places of election in the said counties on Thursday, the
9th day of June, A. D. 1881, by the various sets of managers for those
places, respectively.
``Given under my hand and the seal of the State of South Carolina,
this 23d day of May, in the year of our Lord one thousand eight hundred
and eighty-one.
``Johnson Hagood, Governor.
``R. M. Sims, Secretary of State.''
The right of Mr. Dibble to a seat in the House depends upon the title
of Mr. O'Connor. By the very language of the proclamation he was a
candidate ``to serve for the remainder of the term for which the said
Michael P. O'Connor was elected;'' and if it appears from the proofs
that Mr. O'Connor was not elected, then there was no vacancy created by
his death, no remainder of a term to be filled, and Mr. Dibble could
have no rights to be prejudiced by any pleadings or agreements made by
Mr. O'Connor. In consenting to be a candidate to serve for the
remainder of the term, for which Mr. O'Connor claimed to have been
elected, Mr. Dibble rested his title to the seat in dispute upon the
title of his predecessor, and he must be bound by the pleadings,
proofs, and decree growing out legitimately of that contest. To insist
that Mr. Mackey should abandon the testimony taken in the case prior to
the death of Mr.
Sec. 735
O'Connor--and all of it was taken prior thereto except the evidence of
contestant in rebuttal, and which is not material so far as the true
issue is concerned--and commence anew a contest with Mr. Dibble,
involving the same specifications of contest, is, in the opinion of the
committee, not only vain but in conflict with every principle of law
and equity.
It was claimed by the counsel of Mr. Dibble in argument that if,
after the testimony had been taken Mr. O'Connor had resigned, an
election ordered by the governor to fill the assumed vacancy, and a
successor elected, the contest between the original parties would abate
as fully as if the contestee had died. These propositions must both
stand or fall together. If such was the law, there would be nothing to
prevent a contestee from abating a contest at any time at his own
volition. If, after the testimony had been taken, the contestee should
be forced to conclude that his case was hopeless, it would only be
necessary for him to resign, have the governor order a new election,
again be a candidate, with a hope that under circumstances more
favorable to him and his party he might succeed. Assured that his
former certificate was proven worthless he would have nothing to lose,
and if successful in receiving a majority at the second election he
would be enabled thereby, by his voluntary resignation, to escape the
effect of the frauds perpetrated by him or his partisan supporters at
the first election. It is only necessary to state the proposition to
make manifest its fallacy.
The minority argued at length against the conclusion of the
majority--
But, as we have already said, we think Mr. Dibble's rights are not to
be affected in any way by this record in the case of Mackey v.
O'Connor. We have already given an outline of the facts connected with
Mr. Dibble's admission to his seat, and have quoted the words of the
resolution referring the credentials of Dibble and the record of the
case of Mackey v. O'Connor to the Committee on Elections, which was
laid upon the table by the House, and have also shown that the House
laid on the table the motion to reconsider the vote on that resolution.
Let us apply to these facts the principles of statute and
parliamentary law which appear to us to be applicable thereto. And in
this connection let us cite from our own recognized parliamentary
compilation as to the effect of the motion to reconsider and lay on the
table. Smith's Digest, page 292, concerning the motion ``to lay on the
table,'' contains this language:
``In the House of Representatives it is usually made for the purpose
of giving a proposition or bill its `death-blow;' and when it prevails,
the measure is rarely ever taken up again during the session. If the
motion to `reconsider and lie' follow this motion, and be carried, it
can only be taken from the table by the unanimous consent of the
House.''
And again (ibid., p. 293):
``If a motion to reconsider be laid on the table, the latter vote can
not be reconsidered. (Journals, 3, 27, p. 334; 1, 33, p. 357.)''
Mr. Cushing, in his ``Law and Practice of Legislative Assemblies,''
after showing the distinction between the English and American laws on
the subject of legislative vacancies, proceeds as follows:
``If it [i. e., a vacancy] occurs before the sitting or in a recess,
and the new election takes place without the previous authority of the
assembly, the existence of a vacancy must be determined upon when the
Member elected presents himself to take his seat.''
In the history of vacancies in Congress, there is one case which in
many respects resembles the present. In May, 1867, George D. Blakey and
Elijah Hise were opposing candidates for Congress in the Third
Congressional district of Kentucky, and four days after the election
Mr. Hise died. Mr. Blakey appeared before the State canvassing board
and claimed to have been elected. The board decided that Mr. Hise had
been elected. Congress assembled thereafter on July 3, 1867; and on
July 5, 1867, a memorial of Mr. Blakey was presented to the House,
asking admission as a Member from the said Congressional district, and
the memorial and accompanying papers were referred to the Committee on
Elections, who were instructed by the House, July 11, 1867, in relation
to taking evidence in regard to the same.
On July 20, 1867, Congress adjourned until November 21, 1867. During
this interval, and while the Committee on Elections had under
consideration the claim of Mr. Blakey to the seat, a special election
was held in the Third Congressional district of Kentucky, under writs
of election issued by the governor of Kentucky, to fill the vacancy
occasioned by the death of Mr. Hise; and at such special election, held
August 5, 1867, Mr. Golladay was elected, and on November 25, 1867,
presented his credentials to the House.
Sec. 735
An extended discussion followed. The distinguished chairman of the
Committee on Elections, Mr. Dawes, after conceding the ordinary rule to
be that charges touching ``the legality of an election are matters
which pertain to a contest in the ordinary way, and should not prevent
a person holding the regular certificate from holding his seat,'' said:
``I do not see how it is possible to apply the rules laid down there
to this case, without foreclosing Doctor Blakey from any further
investigation of the question of a vacancy existing at that time.''
(Congressional Globe, 1, 40, p. 783.)
Other Members of the House took the position that Mr. Golladay should
be seated prima facie, and that Mr. Blakey should be allowed to contest
with him the right to his seat.
The House adopted the view of Mr. Dawes, and, instead of allowing Mr.
Golladay to be sworn, referred his credentials to the Committee on
Elections. Eight days afterwards Mr. Dawes presented the unanimous
report of the Committee on Elections declaring that Mr. Golladay was
entitled to the seat. (Congressional Globe, 2, 40, pp. 3, 56.) This
report was adopted by the House, and necessarily recognized that the
writs of election issued by the governor of Kentucky for the special
election, were valid, even though the House had under consideration the
question of the existence of a vacancy at the time. For had the writ of
election of the governor of Kentucky been prematurely issued, the
election would have been without legal sanction, and therefore invalid.
And this decision of the House was not inadvertently rendered, for Mr.
Blakey not only mentions in his memorial to the House that he had
protested before the State authorities against the holding of the
special election, but, in addition, reiterates it in his remarks before
the House. But the House refused to recommit the report of the
committee, ordered the previous question by a vote of 102 to 22, and
adopted the recommendation of the committee without a division.
(Congressional Globe, 2, 40, pp. 57, 61.)
Now, to recapitulate. What principles are involved in this decision?
The main doctrine is, that the right and duty of the executive of a
State to issue writs of election to fill vacancies in the House,
derived from article 1, section 2, of the Constitution of the United
States, in advance of any adjudication by Congress on the question of
vacancy occasioned by death, is to be exercised in contested cases as
well as in ordinary cases, thus applying to such cases the same
principles so early settled in the cases of Edwards (Clark & Hall, 92),
Hoge (Clark & Hall, 136), and Mercer (Clark & Hall, 44). And while as
to the matter of practice in the case of Golladay there was a
difference of opinion as to whether the credentials ought to be
referred to the Committee on Elections, in order to determine finally
as to the existence of a vacancy before seating Mr. Golladay, who held
the certificate, or whether Mr. Golladay should be sworn and the right
reserved to Mr. Blakey to contest his seat, there was no dissent from
the proposition of Mr. Dawes, that if Mr. Golladay were sworn in
without such reservation, Mr. Blakey would be foreclosed ``from any
further investigation of the question of a vacancy existing at that
time.''
Now, in the present case, not only was there no reservation of the
right to contest Mr. Dibble's seat when he was sworn in, but the House,
by a very decided vote, tabled a motion to refer the credentials of Mr.
Dibble and the papers in Mackey v. O'Connor to the Committee on
Elections, and tabled a motion to reconsider its vote thereon.
We do not mean to say, nor have we ever understood Mr. Dibble to
contend, that it is beyond the power of the House to make inquiry into
his right to his seat by such means at it may see fit to adopt in an
investigation de novo. Such an investigation would give to the sitting
Member the opportunity, which he has never enjoyed, of defending his
seat by pleadings of his own and such proofs as he may be disposed to
offer in his cause. It must be borne in mind that by the action of the
House itself Mr. Dibble was placed in full possession and enjoyment of
the office of Member, on December 5, 1881. This possession was clear
from any qualification, reservation, or condition; it was as absolute
as the possession of any Member on the floor. Can it be said a contest
was pending in the case of Mackey v. O'Connor? The answer is that the
House had decisively given ``its deathblow'' to the motion to make Mr.
Dibble a party to that contest before he was sworn in.
It is premature to discuss and to pass judgment upon the effect of
the election of November, 1880, upon the special election of June,
1881, because it is a mere speculative inquiry, until by some order of
the House, which order has never yet been made, the sitting Member is
placed in the position of a party to a contest, either under the
statute or under a special order of the House adopted for the specific
case.
If we look at the statute, we find the following language:
``Sec. 105. Whenever any person intends to contest an election of any
Member of the House of Representatives of the United States, he shall,
within thirty days after the result of such election shall
Sec. 735
have been determined by the officers or board of canvassers authorized
by law to determine the same, give notice, in writing, to the Member
whose seat he designs to contest of his intention to contest the same,
and in such notice shall specify particularly the grounds upon which he
relies in the contest.''
Section 106 provides for an answer by the Member thus served with
notice. Section 107 provides for the taking of testimony, and
incidentally, but without doubt, defines the term ``Member'' to mean
``returned Member.''
Now, there is nothing in the statute to limit its application to
general in contradistinction to special elections. ``To contest an
election of any Member'' is broad and comprehensive; and in this
category Mr. Dibble, as a ``returned Member,'' certainly may be
embraced. Mr. Dibble was certainly elected at an election regularly
held according to law. The cases of Hoge (Clark & Hall, 136), Edwards
(Clark & Hall, 92), and Mercer (Clark & Hall, 44) and the case of
Blakey v. Golladay settle that. The action of the House in seating Mr.
Dibble recognizes the fact and puts it beyond dispute. It is
unnecessary to cite authorities to show that questions concerning the
legality of an election are proper matters of contest under the
statute; they have been so treated in numerous cases.
And when we consider that Mr. O'Connor, the ``returned Member'' of
the November election, had a right to a seat only so long as he lived,
and had no inheritable or transmissible interest to be affected after
his death, it is enough to state that a contest for his seat after his
death is a contest for something that had ceased to exist. The only
relation that could exist between himself and anyone that succeeded him
was a relation of time, not a relation of privity. It can not be said
that because Mr. O'Connor was elected for a term of two years he had a
right in himself and his privies for two years, whether he lived or
died. He only had a right for two years, provided he should live; the
very fact of his death creating a vacancy shows that his right was
absolutely gone at his death. And for anyone else to have or claim a
right the original granting power--i.e., the people--had to be invoked,
and they alone had the right to bestow the remainder of the term. In
law the case of a suit against a life tenant is analogous. Can anyone
claim that where one of two litigants of a close--the one in
possession--dies, and another person enters into possession of the
disputed territory under a fresh grant from the sovereign, the tenant
thus entering can be ousted upon the proceedings had against his
predecessor, such predecessor being neither his ancestor nor grantor,
but simply a life tenant? And shall the right of a Member of this House
to his seat, a right held to be a right of property, be decided on
principles antagonistic to those which govern the decisions of other
rights of property? We think not.
Recurring to the statute, we think it a reasonable construction of
the same when we come to the conclusion that Mr. Dibble, as the
returned Member of the House, was entitled to the notice required
thereunder, in like manner as a Member elected and returned at a
general election. One thing is certain that it was in the power of Mr.
Mackey to serve such notice and to state as his grounds the same
reasons he now advances for contesting the election of Mr. Dibble; and
if the evidence taken in the previous contest of Mackey v. O'Connor
were competent in the new case, he had the opportunity of submitting it
on notice, as evidence in a contest against Mr. Dibble thus
inaugurated, and we fail to find any statutory means by which Mr.
Dibble, after his election, could, by any act of his, become a party to
the case of Mackey v. O'Connor.
This being the case, and the House having seated Mr. Dibble, is there
any precedent in law or in the decisions of this House in contested
cases whereby the party in possession of his seat should go out to hunt
an adversary? Is he to be the actor in any way? We fail to find any
such precedent, and can only come to the conclusion that Mr. Mackey,
having neglected to avail himself of the opportunity afforded him by
the terms of the statute, whereby he could have inaugurated a contest
in the usual form, in the first instance either willfully or mistakenly
prevented Mr. Dibble from being a party to the issues he is now trying
to force upon him.
Failing to find in the statute any mode whereby Mr. Dibble could be
made a party to the case of Mackey v. O'Connor, and finding in it a
mode whereby Mr. Mackey might have made the issues with Mr. Dibble on
which he nows invokes the judgment of the House, but did not so take
issue with Mr. Dibble, we can not come to the conclusion that the usual
resolution of reference to the Committee on Elections of contested
cases, adopted December 21, 1881, operated to revive the case of Mackey
v. O'Connor, which had received ``its deathblow'' by the action of the
House itself over two weeks previously to that time. Such resolution
certainly did not make Mr. Dibble a party to the case of Mackey v.
O'Connor, and we fail to find any action of the House which at any time
had that effect. It therefore seems to us that if the case is within
the statute, then Mr. Mackey has neglected to give the notice
prescribed
Sec. 735
by the statute to be given to the Member whose ``election'' is to be
contested; and, on the other hand, if the case be outside of the
statute, the House has never taken any order for proceedings in the
matter against Mr. Dibble, the sitting Member, and without such order
the committee are without jurisdiction to act concerning Mr. Dibble in
the premises, having neither the statute nor any precedents of the
House on which to support such claim for jurisdiction.
Under that provision of the Constitution which makes the House of
Representatives the judge of the election, returns, and qualifications
of its Members, the House may adjudicate the question of right to a
seat in either of the four following cases: (1) In the case of a
contest between a contestant and a returned Member of the House,
instituted in accordance with the provisions of title 2, chapter 8, of
the Revised Statutes; (2) in the case of a protest by an elector of the
district concerned; (3) in the case of a protest by any other person,
and (4) on the motion of a Member of the House. The proceeding in the
first of these cases is, by the Revised Statutes, made a proceeding
inter partea--a suit or action in which the contestant is plaintiff and
the returned Representative defendant.
A case adjudicated by the House on the protest of an elector, or
other person, or on the motion of a Representative, is not an action
inter partes. It is a proceeding under the Constitution, and not under
the statute.
The action inter partes provided for by the Revised Statutes abates
on the death of either party. While the power of the House to
adjudicate any question of title involved in that action survives, the
action itself abates upon the death of either party thereto.
It follows that the contest of Mackey v. O'Connor abated on the death
of Mr. O'Connor. That contest was an action inter partes. It was the
technical action specially provided for in the Revised Statutes.
If the House shall hereafter adjudicate any of these questions, in a
proceeding against Mr. Dibble, it will have the power, under the
Constitution, to provide the rules for such adjudication.
When the House undertakes the adjudication of the right of a Member
to his seat on the protest of an elector or other person, or on the
motion of a Representative, it does not look to the statutes for its
rules of procedure; it prescribes its own rules, in the exercise of its
unquestionable constitutional power. If it finds any of the rules
prescribed by law for technical contests available and useful in the
case, it adopts them. Such rules then have force, not because found in
the statutes, but because adopted by the House. But this constitutional
power of the House to prescribe the rules for such adjudications is not
an absolute or undefined power to be arbitrarily exercised by the
House. Like every other constitutional power of the House it is to be
exercised in subordination to those principles of justice which lie at
the root of the Constitution and send their influences through all its
provisions. For an adjudication made on the protest of an elector or
other person, or on motion of a Representative, the House has no
constitutional right to prescribe any rules which shall bind the
sitting Member by pleadings or averments which he never made, by the
testimony of witnesses whom he never had an opportunity to examine or
cross-examine, by stipulations or admissions, or waivers which he never
made, or by laches which he never incurred. The House has no right to
make the title of a Representative to his seat subject to the acts or
omissions, the diligence or laches, the wisdom or folly, of another
man.
But if it were conceivable that the contest, which is by the Revised
Statutes so clearly made a proceeding inter partes, could survive one
of the parties, it would, nevertheless, be certain that when the House
seated Mr. Dibble on his credentials that contest was dismissed and
passed from the jurisdiction of the House. From the time when Mr.
Dibble took his seat, in pursuance of the resolution of the House, it
was his right to that seat which was to be assailed by any contestant,
or claimant, or protestant. Since that time Mr. O'Connor's right has
been a question for the adjudication of the House, not because it was
once involved in the contest of Mackey v. O'Connor, but because it is
now involved in the question of Mr. Dibble's right to the seat which he
occupies. When the House admitted Mr. Dibble to the seat without
condition or reservation, it invested him with the right which belongs
to other sitting Members under the Constitution and the law to receive
due notice of any proposed contest, to have the opportunity to answer,
to examine his own witnesses, to cross-examine those of his opponents,
and to be concluded by no acts, omissions, stipulations, laches, or
waivers except his own.
It may, perhaps, be suggested that the contest of Mackey v. O'Connor
was revived and referred to the committee by the resolution which was
adopted December 22, 1881, in the following words:
``Resolved, That all of the testimony and all other papers relating
to the rights of Members to hold seats on this floor in contested cases
now on file with the Clerk of this House or in his possession, and all
memorials, petitions, and other papers now in the possession of this
House, or under its control,
Sec. 736
relating to the same subject not otherwise referred, be, and the same
hereby are, referred to the Committee on Elections, and ordered to be
printed.''
But the answer is obvious. The resolution did not refer to the
committee papers which related to abated contests, but only those which
related to pending contests. It did not revive dead suits. It only
referred to the committee papers which related to existing suits. An
order of reference places a paper before the committee for what it is
worth. It imparts no new legal character or quality to the paper. It
does not transform an answer in the case of Mackey v. O'Connor into an
answer in the case of Mackey v. Dibble. It does not transform illegal
evidence into legal evidence. It does not transform a witness for or
against Mr. O'Connor into a witness for or against Mr. Dibble. It does
not transform an admission, stipulation, or waiver by Mr. O'Connor into
an admission, stipulation, or waiver by Mr. Dibble. It does not
transform a dead suit, to which the papers relate, into a revived and
pending action.
The first and only notice of contest of his seat ever served on the
sitting Member, Mr. Dibble, by Mr. Mackey, was not served until January
4, 1882. Thereupon Mr. Dibble filed with the committee a protest
against the committee's proceeding to consider and act upon the case of
Mackey v. O'Connor, because it was evident from the notice served by
Mr. Mackey that it was the intention of the contestant to assail his
right to his seat by means of a case to which he was not a party. But a
majority of the committee decided to proceed with the case, and
overruled the protest of the sitting Member. For the reasons already
set forth, we are of the opinion that the protest should have been
sustained.
We can not concur in establishing as a precedent that a Member of
this House, duly admitted to his seat, can be rightfully removed
therefrom without any opportunity of defending his title thereto,
either by pleading his defense, or by introducing evidence in his
behalf. Nor can we subscribe to the opinion that the Committee on
Elections, under its ordinary powers, can summon a Member of this House
to defend a cause in which he is not the contestee, in which he is in
no way named as a party, and in which the House has not only not
required him to appeal, but has by its action declined to make him a
party. If such a precedent is to be established, it will be giving to
the Committee on Elections jurisdiction to act outside of the statute,
and to inquire as to the seat of any Member on the floor at its
discretion, and without the order of the House.
736. The case of Mackey v. O'Connor, continued.
Discussion as to informalities in the preparation of depositions in
an election case.
The law governing the method of transmitting the testimony in an
election case to the Clerk of the House was held to be directory
merely.
Instance wherein ex parte affidavits were received as to a secondary
question arising in an election case.
The House rejected a return of State election officers on the
evidence of the returns of United States supervisors of elections.
(2) As to the validity of the testimony.
The testimony was taken by E. W. Hogarth, notary public and
stenographer, and sitting Member produced before the committee an ex
parte affidavit of Hogarth setting forth the following facts:
That he was employed by E. W. M. Mackey, esq., as stenographer and
notary public in the contest between E. W. M. Mackey and M. P. O'Connor
for a seat in the Forty-seventh Congress of the United States, and that
deponent acted as stenographer, and sometimes notary public, in
Orangeburg County on behalf of the Hon. M. P. O'Connor. That deponent
took the testimony on the part of E. W. M. Mackey, esq., in the
counties of Charleston, Orangeburg, and Clarendon, with the exception
of one or two depositions. That all of the testimony so taken by
deponent as stenographer was transcribed from his stenographic notes in
deponent's own handwriting, and testimony taken on behalf of E. W. M.
Mackey, esq., was turned over to him in deponent's own handwriting, and
such taken on behalf of the Hon. M. P. O'Connor was turned over, in
deponent's own handwriting, to Robert Chisolm, jr., esq. This ended his
(deponent's) connection with said testimony, except that afterwards, at
various times, he (deponent) signed certificates which were tendered to
deponent by E. W. M. Mackey, esq., and
Sec. 736
also jurats at the foot of depositions; these deponent signed without
comparison with his said stenographic notes, taking it for granted that
said testimony was the same as furnished by deponent to said E. W. M.
Mackey, esq. That the said certificates were often presented to
deponent for signature by said E. W. M. Mackey, esq., when deponent was
otherwise employed, and that deponent did not have his stenographic
notes at hand when he so certified said testimony.
That deponent also certified the testimony taken on behalf of Hon. M.
P. O'Connor in instances where deponent acted as notary public.
That deponent did not forward any of said testimony to the Clerk of
the House of Representatives, but turned same over to the respective
parties named above, and deponent knows nothing of his personal
knowledge concerning the forwarding of the same.
Sitting Member also produced the affidavit, also ex parte, of one C.
Smith, who swore that he was employed by contestant to write out the
testimony taken in his behalf, and that in writing it out made material
changes, destroying the originals (i. e., the copy furnished by the
stenographer, but not the stenographer's notes, which were retained by
Hogarth).
Several other ex parte affidavits were produced by sitting Member
tending to confirm this testimony as to the alteration of the
affidavits.
It also appeared in the record of the case\1\ that in a similar
manner the testimony taken by Mr. O'Connor was delivered to the
latter's son, who, assisted by Mr. Mackey, went over it to make
corrections.
It also appeared that there had subsisted between the original
parties to the contest an agreement, signed by Mr. Mackey and by the
attorney of Mr. O'Connor, providing, among other things, that in all
cases where ``a deposition is not subscribed to by the party making the
same the signature of such witness is hereby waived.''\2\
The law of the United States in regard to the duties of the officer
taking testimony in a contested election case provided:
Sec. 122. 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.
Sec. 127. 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 addressed
to the Clerk of the House of Representatives of the United States,
Washington, D. C.
It appeared that the evidence was, moreover, transmitted to the House
by express, and not by mail.\3\
The minority attacked the depositions and demanded their suppression
on two grounds:
(a) Because the depositions were not reduced to writing in the
presence of the notary.
Quoting the judiciary act of 1789--
And every person deposing as aforesaid shall be carefully examined
and cautioned and sworn or affirmed to testify the whole truth, and
shall subscribe the testimony by him or her given after the same shall
be reduced to writing, which shall be done only by the magistrate
taking the deposition, or by the deponent in his presence. And the
depositions so taken shall be retained by such magistrate until he
deliver the same with his own hand into the court for which they are
taken, or shall, together
-----------------------------------------------------------------------
\1\ Record, Appendix, p. 359.
\2\ See Record, p. 4372.
\3\ Record, p. 4346.
Sec. 736
with a certificate of the reasons as aforesaid of their being taken,
and of the notice, if any, given to the adverse party, be by him, the
said magistrate, sealed up and directed to such court and remain under
his seal until opened in court--
the minority contended that it was analogous to the law governing
taking testimony in contested election cases, and that the decisions in
relation to it sustained their contention. They quoted at length from
Bell v. Morrison (1 Peters, 351), United States v. Smith (4 Day, 121),
Edmonston v. Barrett (2 Cranch C. C., 228), and other decisions to show
that a deposition was not admissible if it was not shown that it was
reduced to writing in the presence of the magistrate. The minority
conclude:
But it is argued that the original stenographic notes were written
out in the presence of the notary public, and that this was a
compliance with the statute. The authorities already cited are not
consistent with this position. The object is the authentication of the
testimony now on file with the Clerk of the House. And the agreement of
the parties only extended to the substitution of the longhand
transcript of the stenographic notes, and did not waive anything but
the signatures of the witnesses thereto. The parties made no agreement
that the depositions in longhand should be afterwards recopied by the
contestant and his agents out of the presence of the notary, and that
these papers should be forwarded, and the longhand depositions made by
the notary should be destroyed. The part of the agreement bearing upon
this matter is as follows:
``Fourth. That inasmuch as both parties intend to have the
depositions of many of the witnesses taken in shorthand by a
stenographer, which will render it impossible for such witnesses to
subscribe to their depositions until the same shall be written out,
which, in many instances, can not be done for some time after such
depositions shall have been taken; and inasmuch as the signatures of
the witnesses in such cases could only be procured by requiring a
second attendance of such witnesses at considerable inconvenience and
expense to all parties interested; therefore, in all cases where a
deposition is not subscribed to by the party making the same the
signature of such witness is hereby waived.''
The contestant, Mr. Mackey, states that this rewriting of the
depositions was done, not by agreement of the parties, but by agreement
between the notary, Hogarth, and himself. But to our minds this conduct
of a public officer was a violation of his plain duty under the
statute, to retain the testimony in his own custody until forwarded,
and this was aggravated, not excused, by collusion between the officer
and one of the parties without the knowledge or consent of the other
party.
We think, therefore, that the depositions substituted by the
contestant and his agents for the originals written by Hogarth should
be suppressed.
The majority, who denied, as a matter of fact, that the affidavits
had been materially or harmfully altered, and who insisted that
fourteen affidavits on which the decision of the case turned could not
be impeached successfully, say:
It was further charged that the technical requirements of the statute
in reference to taking testimony in contested elections had not been
complied with, either in the transcribing of the depositions in their
attestation or in the manner of their being forwarded to the Clerk of
the House. To meet the first and really only serious charge the
contestant filed the affidavits of 83 of the 94 witnesses examined by
him, each of whom deposed that he had carefully read his deposition, as
contained in the printed record, and that the same was in every
particular the deposition made by him before the notary public, and
that there had been no garbling or alteration in or addition thereto,
and they each again made oath to the truth of the matters and things
therein contained. The notary who, by agreement of Mr. Mackey and Mr.
O'Connor, took the testimony stenographically, also made oath that in
the limited time given him he had compared with his stenographic notes
the depositions of 14 witnesses as printed in the record, and that the
depositions as printed correspond in every particular with the original
stenographic notes of such depositions.
The majority further say:
The affidavits submitted by the contestant in answer to Mr. Dibble's
protest are uncontradicted by any affidavit filed by the latter, and
they establish the fact that the testimony, as found in the printed
Sec. 736
record, is in every particular the testimony actually given by the
witnesses, and taken stenographically by the notary, and afterwards
transcribed by his direction. It is not controverted that the evidence
was, by the agreement of Mr. Mackey and Mr. O'Connor, taken
stenographically by the notary. These stenographic notes are the
original evidence of what the witnesses deposed. They were taken
necessarily in the notary's presence, who was also the stenographer.
They were really the depositions in the cause. By the stipulations it
was agreed that these stenographic notes should be afterwards
transcribed. The manner in which they were transcribed, and by whom
transcribed, is a matter of no importance, providing they were
transcribed correctly, since the notary public accepted the work as
performed by the copyists, and certified to the same as being the
depositions taken by him. The fact that the contestant assisted in
making transcripts of this evidence does not detract from its
correctness.
(b) The minority insisted that the evidence should have been
transmitted to the House by the notary, and until so transmitted must
remain in his custody.
The majority say:
The provisions of the statute in regard to the form and manner of
taking and forwarding testimony in contested election cases are merely
directory, and therefore the only question which the committee has
deemed it necessary to consider upon this point has been whether the
essential provisions of the law had been complied with; that is, had
the testimony of the witnesses been correctly reported by the notary
and stenographer, and had that testimony been forwarded to the House.
If Mr. Dibble had shown by the proper evidence that the depositions
before the committee were not the depositions of the witnesses (and he
could have done this by the ex parte affidavit of the stenographer, if
such was the case) he would have disclosed a matter fatal to their
consideration.
This question as to the validity of the affidavits received the most
attention during the debate, and was the point on which the minority
apparently rested their defense with most confidence.
(3) As to the merits of the case.
The majority report says:
Under the election laws of South Carolina the governor of the State,
prior to each general election, appoints for each county in the State
three commissioners of elections. These commissioners of elections
appoint for each poll in their respective counties three managers of
elections. (Rev. Stat., Title II, chap. viii, sec. 2.) By the managers
so appointed the election at each poll is conducted, and at its close
the votes counted and a return thereof made to the commissioners of
elections (15 Stat., 171), who, on the Tuesday next following the
election, meet and organize as a board of county canvassers, and from
the returns made to them by the managers they count or canvass the
votes of the county and make such statements thereof to the State board
of canvassers as the nature of the election requires, making for
Representative in Congress ``separate statements of the whole number of
votes given in such county.'' (Rev. Stat., Title II, chap. viii, secs.
15-18.) From these statements of votes made by the county canvasser the
board of State canvassers determine and certify the number of votes
cast for the different candidates for the various offices voted for and
declare what persons have been by the greatest number of votes duly
elected to such offices. (Ibid., secs. 24-26.)
Acting upon the returns made by the county canvassers of Charleston,
Orangeburg, and Clarendon, the counties composing the Second
Congressional district of South Carolina, the State board of canvassers
certified and declared that at the election held November 2, 1880, the
vote cast for Representative in Congress from the said district was as
follows (Rec., p. 11):
------------------------------------------------------------------------
M. P. E. W. M.
O'Connor. Mackey.
------------------------------------------------------------------------
Charleston.................................... 11,429 8,112
Orangeburg.................................... 3,627 2,712
Clarendon..................................... 2,513 1,473
-------------------------
Total..................................... 17,569 12,297
12,297
-------------
Majority for O'Connor..................... 5,272
------------------------------------------------------------------------
Sec. 737
Although the vote certified by the State board of canvassers is a
correct aggregate of the vote returned to it by the county boards of
canvassers, it is not a true statement of the result of the election,
because the returns made to the State board of canvassers by the county
canvassers of Charleston and Orangeburg, upon which the State board
acted, were not full and correct statements of the vote cast in those
counties. Had the county canvassers in the three counties in the
district counted the vote as returned to them by the managers of the
election of the several precincts in the several counties, the result
would have been a majority of 879 for Mr. Mackey. These managers in
every instance and at every poll in the district were of the same
political faith, and were the partisan supporters of Mr. O'Connor. The
majority certified for Mr. O'Connor by the county board of canvassers,
all of whom were Democrats, was obtained by entirely reversing the vote
of one, Haut Gap, and leaving out in the final count seven precincts in
Charleston County, to wit, Black Oak, Strawberry, Calamus Pond, Biggin
Church, Brick Church, Ten Mile Hill, and Enterprise, and four in
Orangeburg County, to wit, Fogles, Fort Motte, Lewisville, and
Bookhardts.
The majority discuss the twelve precincts briefly and show that the
actual vote cast at them is proven by the testimony of United States
supervisors, sometimes corroborated by testimony of the State election
officers.
The minority objected to the returns of the United States supervisors
as evidence and discussed their status somewhat.
The minority did not concede that the majority for O'Connor was
destroyed.
The majority, after arguing that there were great frauds in the
district beyond what they had thought it necessary to show, recommended
the following resolutions:
Resolved, That the Hon. Samuel Dibble is not entitled to hold the
seat now occupied by him in this House as a Representative from the
Second district of South Carolina in the Forty-seventh Congress.
Resolved, That the Hon. E. W. M. Mackey was duly elected as a
Representative from the Second Congressional district of South Carolina
in the Forty-seventh Congress, and is entitled to a seat in this House.
The report was debated at length from May 29 to May 31,\1\ and on the
latter day the resolutions of the majority were agreed to, yeas 150,
nays 3, the minority refraining from voting.
Mr. Mackey then appeared and took the oath.
737. The Virginia election case of Walker v. Rhea, of Virginia, in
the Fifty-seventh Congress.
The death of the contestant after the beginning of an election case
did not prevent the continuation of the case to a decision.
A ballot complicated and unfair but not shown to be issued in
pursuance of any conspiracy was not considered as a reason for
discarding the return.
The fact that fewer votes were returned for contestant than for the
head of his party ticket was held not to justify a conclusion of fraud.
On April 8, 1902,\2\ Mr. Edgar Weeks, of Michigan, from the Committee
on Elections No. 3, reported in the case of Walker v. Rhea, of
Virginia. On the face of the returns the returned member received a
majority of 1,751 votes. After the contest was begun the contestant
died, but this did not prevent the further progress of the case.
-----------------------------------------------------------------------
\1\ Record, pp. 4329, 4334, 4372-4398, Appendix, p. 357; Journal, pp.
1377-1380.
\2\ First session Fifty-seventh Congress, House Report No. 1504.
Sec. 737
The contest was based substantially on the following allegations and
charges, viz:
First. That the official ballots printed and used in several of the
counties were so complicated and unfair that it was very difficult, if
not impossible, for voters to read, mark, and prepare them within the
time of two and one-half minutes allowed by law for that purpose; that
many of the electors who intended and tried to vote for contestant were
disfranchised by reason of said unfair ballots, and that such ballots
were so arranged and printed by the political friends of contestee with
a fraudulent intent, and were calculated to deceive and mislead.
Second. That the returned member's majority over contestant of 1,751,
while McKinley's majority over Bryan was 1,509 in the same district, is
conclusive proof that the returns on their face were not an honest
expression of the will of the voters at that election and that the
contestant was defrauded and cheated.
Third. That the electoral boards and other election officers were
guilty of fraud and dishonest practices in the interest of contestee,
which accomplished contestant's apparent defeat.
Those charges and allegations were severally denied by the returned
member and other pleas and explanations were interposed in his behalf.
The committee criticise the election laws of Virginia as conducive to
fraud; but their conclusions as to the merits of contest were as
follows:
The Virginia election law provides that the official ballot shall be
a white paper ticket containing the names of persons who have complied
with the provisions of that act and the titles of the offices for which
they are candidates, printed in plain roman type not smaller than that
known as ``pica.'' While the letter of the statute may have been
complied with, several of the ballots, notably that in Scott County, if
legal, were very unfair. On those ballots were the names of six
candidates for President and Vice-President, the names of the electors
for each, their residences, and the names of the contestant and
contestee, with the titles of the offices for which they were
candidates. No regard for order was observed in the form of the ballot
or the arrangement of that matter, and the names of the Congressional
candidates especially appear in unexpected and unlooked-for positions.
They were necessarily very misleading and confusing.
To say that the elector of ordinary intelligence and education would
find it very difficult to examine, mark, and prepare that ballot in the
two and one-half minutes allowed by law is a mild expression of a
manifest truth. Under the law those official ballots, not only
throughout the district, but throughout the whole State, could and
should have been uniform and so arranged and printed as to assist
rather than confuse. And if the object in preparing them were not to
take unfair advantage, then the printers and members of the electoral
boards who supervised the work were guilty of gross negligence or
incompetency. However, your committee is not disposed to predicate its
judgment on suspicion merely, or on facts or circumstances from which
contrary inferences may be fairly drawn. It is not convinced that those
unfair ballots were the result of a common purpose, or that they
emanated from a common source, or that the contestee advised or
approved of the use of such ballots, but, on the contrary, suggested
that the ballots be made as plain as possible. Therefore this charge is
dismissed.
The fact that on the face of the returns contestee received 1,751
more votes than contestant and McKinley 1,509 more than Bryan is not,
in the judgment of your committee, sufficient reason to justify the
conclusion that such result was accomplished by fraud. After a careful
examination of the record your committee does not find such affirmative
and positive evidence of fraud or mistakes on the part of the election
officers as will overcome contestee's certified majority or justify it
in setting aside the election.
Therefore the committee reported that the contestant was not elected,
and that the sitting Member was entitled to the seat.
On May 21 \1\ the House, without division, concurred in the report of
the committee.
-----------------------------------------------------------------------
\1\ Record. p. 5756.
Sec. 738
738. The North Carolina election case of Moody v. Gudger in the
Fifty-eighth Congress.
An election contest does not necessarily abate by reason of the death
of contestant during the taking of testimony.
Hearsay evidence as to declarations of voter as to how he had voted
or would vote was held incompetent.
Evidence as to the party affiliations of voters is inconclusive as
proof of how they cast their ballots.
Hearsay evidence as to declarations of voters that they had been
bribed is unsatisfactory and dangerous evidence.
On March 18, 1904,\1\ Mr. H. O. Young, of Michigan, from the
Committee on Elections No. 1, submitted the report of the committee in
the North Carolina election case of Moody v. Gudger.
At the outset of this case the committee dispose of a preliminary
question as follows:
After the pleadings had been completed and a part of the testimony
had been taken the contestant, Maj. James M. Moody, died, and it is
strongly urged by contestee that the proceedings were thereby abated.
He says, however:
``The constitutional right of the House of Representatives to inquire
into and pass upon the title of any Member to the seat occupied by him
is not questioned. The Constitution, Article I, section 5, plainly
makes the House the sole judge of the election returns and
qualifications of its Members. Its jurisdiction and power under this
section is sole and supreme. In such manner as it may deem advisable it
may exercise this constitutional prerogative and no one may question
its action, but the exercise of this power must originate with the
House. By resolution or other original affirmative action it must
declare its purpose to investigate and adjudge.''
Your committee are of the opinion that when the House of
Representatives referred this contest to your committee it took such
affirmative action and clothed your committee with jurisdiction to hear
and report upon the case. This doctrine is not without precedent. In
the case of Mackey v. O'Connor, decided in the Forty-seventh Congress,
an abstract of which appears upon page 387 of Rowell's Digest, the
contestee died during the pendency of the proceedings. It was there
contended by the attorney for Mr. Dibble, who had been elected to the
vacancy caused by Mr. O'Connor's death, that the contest had abated and
that it would be necessary for contestant to begin a new contest
against the then sitting Member, but the majority of the committee
thought otherwise. They said:
``The right of contestant, as also of the people of that
Congressional district, who, after all, are the real parties in
interest, to have the facts of that election inquired into and
adjudicated by the House can not be changed by the fact of the death of
the contestee.''
The minority of the committee dissented, but the House agreed with
the majority of the committee, and. being satisfied that upon the
merits of the case contestant was duly elected, he was seated. The
exercise of this power did not originate with the House, but with the
contestant, and the House took no other affirmative action to declare
its purpose to investigate and adjudge than the reference of the
contest to the Committee on Elections.
In the later case of Dantzler v. Stokes, from South Carolina, in the
Fifty-seventh Congress, Stokes having died, Mr. Lever, who had been
elected to fill the vacancy thus caused, was permitted to defend the
contest, and the case proceeded, though no final action was taken
thereon by the House.
Contestee attempts to draw a distinction between the case of the
death of contestant and that of contestee, but your committee is
satisfied that such distinction is not well founded. The original
jurisdiction of Congress is as perfect in one case as in the other. The
people of the Congressional district, as was said in the case of Mackey
v. O'Connor, ``are the real parties in interest,'' and are as much
concerned in not being misrepresented by a man they have defeated at
the polls as they are in being represented by a man they have elected.
If an election contest be regarded merely as a personal action it will
abate by the death of either party. It is only because it is not merely
a
-----------------------------------------------------------------------
\1\ Second session Fifty-eighth Congress, House Report No. 1738;
Record, p. 5430.
Sec. 738
personal action but one in which the people of the Congressional
district are interested, and because the House has a right of its own
motion to investigate the election of its own Members, that the contest
may proceed after the death of either party. Congress can not be ousted
of its jurisdiction to turn from its doors an interloper by the fact
that the person really elected has died.
As to the merits of the case, the committee found:
Upon the face of the returns contestee received 12,700 votes and
contestant received 12,517 votes, giving contestee an apparent majority
of 183 votes. Contestant in his notice of contest alleges that this
apparent majority was obtained by bribery and fraud in South
Waynesville precinct of Haywood County, and by misconduct of the
registration and election boards in Tryon and Shields precincts of Polk
County, where duly qualified electors were denied the right to vote,
and large numbers of illegal votes were received in gross violation of
law. He asks that the returns from these precincts be rejected. He also
alleges similar frauds and misconduct in other precincts of said
district, but he has offered no proof thereof, and your committee
therefore disregards said allegations. He also alleges specifically
that large numbers of illegal votes were cast, counted, and returned
for contestee, naming the precincts in which they were thus cast and
the number of said votes cast in each precinct. These aggregate nearly
900 votes. He also alleges in the same specific manner that about 60
legal votes were attempted to be cast for contestant and they were
arbitrarily and illegally rejected by the registration and election
boards.
Contestee in reply denies all the allegations of contestant above set
forth, and further answering alleges in the same specific manner
pursued by contestant that some 1,500 illegal votes were cast, counted,
and returned for contestant.
It was conceded upon the argument by the attorneys for both parties
that the individual votes cast, counted, and returned for contestant
and those which were cast, counted, and returned for contestee that
were proven to be illegal would substantially balance each other and
would in no way affect the result. The committee, being satisfied that
this is a fact, enters into no discussion of the nearly 2,400 separate
and distinct issues raised by these individual cases and agrees with
the attorneys in the case that the case must be determined by the final
disposition to be made of the votes returned from the precincts of
South Waynesville, Tryon, and Shields, and from the county of Buncombe.
In these the vote was as follows:
------------------------------------------------------------------------
Majority
Gudger. Moody. for Gudger.
------------------------------------------------------------------------
Buncombe......................... 3,029 2,690 339
Shields.......................... 150 60 90
Tryon............................ 119 49 70
South Waynesville................ 266 147 119
--------------------------------------
Total........................ 3,564 2,946 618
------------------------------------------------------------------------
It will be readily seen that if the county of Buncombe be thrown out
the result of the election would be changed; the same result would
follow if the precinct of South Waynesville and either of the precincts
of Tryon or Shields should be discarded; but the rejection of the two
precincts of Tryon and Shields alone, or the rejection of South
Waynesville, would still leave contestee a majority.
BUNCOMBE COUNTY.
The contestant in his notice of contest only asked for the rejection
of certain votes in the county of Buncombe, but the attorney for
contestant in his brief and in his oral argument before the committee
demands the rejection of the entire vote of the county. Contestee
objects that this contention is not open to contestant as it is not
contained in his notice of contest. Your committee expresses no opinion
upon this question, as their conclusion upon an examination of the
facts renders a decision unnecessary.
The constitution of North Carolina provides that only legally
registered voters shall be permitted to vote, and then follows this
section:
``Every person presenting himself for registration shall be able to
read and write any section of the constitution in the English language,
and before he shall be entitled to vote he shall have paid, on
Sec. 738
or before the 1st day of May in the year he proposes to vote, his poll
tax for the previous year, as prescribed by article 5 of the
constitution, section 1.'' (Constitution of North Carolina, art. 6,
see. 4.)
The statute of North Carolina based upon this constitutional
provision provides that--
``Every person liable for such poll tax shall, before being allowed
to vote, exhibit to the registrar his poll-tax receipt for the previous
year, issued under the hand of the sheriff or tax collector of the
county or township where he then resided, and unless such poll-tax
receipt shall bear date on or before the 1st day of May of the year in
which he offers to vote such person shall not be allowed to vote:
Provided, That in lieu of such poll-tax receipt it shall be competent
for the registrar and judges of election to allow such person to vote
upon his taking and subscribing to the following oath: `I do solemnly
swear (or affirm) that on or before the 1st day of May of this year I
paid my poll tax for the previous year, as required by article 6,
section 4, of the constitution of North Carolina.' '' (Record, p. 5.)
It is made the duty of the sheriff to file a list of all persons who
have paid their poll tax in time to qualify them as voters. Under the
laws of North Carolina, however, all male persons over 50 years of age
are exempt from the payment of the poll tax, and all male citizens who
are under 21 years of age on June 1 of the year previous to that in
which the election was held would owe no poll tax on the May I next
preceding the election, and so could have no receipt and would not
appear upon the sheriff's list of those who had paid their poll tax. No
claim was made that any of these statutes or constitutional provisions
are invalid. Contestant shows that some 500 men voted in Buncombe
County whose names are not on the sheriff's list of those who had paid
their poll tax in time to qualify them as voters. He claims that this
was owing to a conspiracy to issue fraudulent tax receipts and
exemptions after the time fixed by law for said purpose, and that said
conspiracy was so largely carried out as to throw doubt and discredit
on the entire vote of the county and render it impossible to determine
how the honest vote of the county was cast.
Your committee finds the evidence of this conspiracy inconclusive. If
it existed at all it was abortive of results, for the testimony clearly
shows that the list of those who voted without being on the sheriff's
list is largely made up of those who were too old or too young to be
liable for the poll tax, and of those who were not conclusively shown
to have been entitled to vote, at least as many were shown to have
voted for contestant as for contestee. The committee desires to call
attention to the incompetent and inconclusive character of much of the
testimony as to how individuals voted. This consisted in a very large
number of cases of the statement of some third party that the voter,
who was not himself called as a witness, had said that he should vote
or had voted for contestant or contestee, as the case might be. It is
needless to say that this is hearsay.
Another class of testimony relied on was that certain voters were
Republicans or Democrats, from which the inference was sought to be
drawn that they had voted their party ticket for Member of Congress.
That such testimony, if admissible at all, is inconclusive and of
little weight will be conceded by every lawyer. But whether you allow
to this testimony all the force that is sought to be given it by either
of the parties or reject it altogether, the result is the same. In
either case contestant has received at least as many illegal votes as
contestee. Your committee therefore can not find any valid reason for
rejecting the vote of Buncombe County.
SHIELDS PRECINCT, POLK COUNTY.
The contestant alleges that legal voters were denied registration in
Shields precinct of Polk County, and that the ballot box was stuffed
with illegal ballots. The evidence to sustain the latter charge is too
puerile for consideration. There is no evidence tending to prove that
more than one legal voter was denied registration, and there is other
evidence just as credible tending to show that this one legal voter did
not apply for registration at all, and so could not have been rejected.
The vote of this precinct also, in the opinion of your committee,
should be counted as cast and returned.
TRYON PRECINCT, POLK COUNTY.
The contestant claims that the votes of Tryon precinct, in Polk
County, should be rejected because of the refusal of the registration
officers to register a large number of qualified voters. Your committee
can find no evidence tending to show that more than one legal voter was
refused registration. A few illegal votes seem to have been cast, but
this, in the opinion of your committee, was the result of accident
rather than design, and the illegal votes are easily eliminated and do
not affect the result. In the opinion of your committee the vote of
this precinct should not be rejected.
Sec. 739
This disposes of the case, as the precinct of South Waynesville, in
Haywood County, even if rejected, would not alter the result, but as
much stress has been laid upon this precinct in the argument of counsel
your committee thinks best to report the facts relative to the election
therein as it finds them.
SOUTH WAYNESVILLE PRECINCT, HAYWOOD COUNTY.
All the testimony tends to show that this precinct was normally
Democratic from 200 to 250 majority. At the election in question it was
carried by nearly all the Democratic candidates by majorities of over
200. It was the home, however, of contestant. He was popular there. Two
years before he had carried the precinct by a majority of 26 against
the Democratic candidate, Mr. Crawford. At that time there was
disaffection in the Democratic ranks, and some of the most prominent
Democratic workers were supporting contestant. These same men in 1902
were supporting contestee. The result of that election was a majority
of 119 for contestee, who ran fully 100 behind the average of his
ticket. Contestant claims that this result was brought about by
wholesale bribery of voters by contestee, without which contestant
would have carried the district by as large a majority as he had done
two years previously.
It is evident, however, that the conditions had materially changed.
In 1900 contestant was opposed by a divided Democratic party; in 1902
by a united Democratic party. There is considerable testimony to the
effect that it was ``common talk,'' ``generally understood,''
``whispered about,'' and ``a matter of common knowledge'' that money
was being used by the friends of both contestant and contestee for the
purpose of influencing voters. There is also some testimony that a few
men who had voted at the election told the witness that they had been
offered money and in some cases that they had received money for their
votes. Testimony of this kind is sometimes received in election cases
from the difficulty of obtaining direct evidence of bribery, but at its
best it is inconclusive, unsatisfactory, and dangerous. It is a most
significant fact, however, that nearly all the active workers for both
contestant and contestee were witnesses in the case, and each, while
disclaiming any knowledge of the improper use of money by persons other
than himself, when asked as to his own conduct, put himself upon his
constitutional right and refused to answer questions which might
criminate himself. The above is a fair statement of all the testimony
tending to show the improper use of money by the supporters of the
contestee.
There is no evidence to show that contestee used any money himself or
was cognizant of the use of any money by his supporters in this
precinct in his behalf, properly or improperly. On the contrary, there
is strong direct testimony of the most positive nature, from those in a
position to know, that he contributed no money whatever to be used in
aid of his election in this precinct. No single voter is pointed out
who was bribed to vote for contestee. For these reasons your committee
think the vote of South Waynesville precinct should not be rejected.
It follows from these conclusions that in the opinion of your
committee the contestant has not made out his case, and they therefore
recommend the adoption of the following resolution:
``Resolved, That James M. Moody was not elected a Member of the
Fifty-eighth Congress from the Tenth district of North Carolina.
``Resolved, That James M. Gudger, jr., was elected a Member of the
Fifty-eighth Congress from the Tenth district of North Carolina, and is
entitled to retain his seat therein.''
The House agreed to the resolutions without debate or division.
739. The Maryland election case of Stewart v. Phelps in the Fortieth
Congress.
Instance of the withdrawal of an election contest by letter from the
contestant.
On July 5, 1867,\1\ Mr. Charles E. Phelps, of Maryland, whose seat
had been contested by Charles J. Stewart, presented a communication
from Mr. Stewart, addressed to the House, in which he stated that he
had proceeded to take testimony in support of the allegations in his
notice of contest; but, finding the testimony insufficient to entitle
him to the seat, he hereby withdrew his claim. This communication with
accompanying papers was referred to the Committee on Elections.
-----------------------------------------------------------------------
\1\ First session Fortieth Congress, Journal, p. 165; Globe, p. 500.
Sec. 740
740. The Illinois election case of Durborow v. Lorimer, in the Fifty-
eighth Congress.
Instance of abandonment of a contest by notification from contestant
to the committee.
On April 20, 1904,\1\ Mr. Marlin E. Olmsted, of Pennsylvania, from
the Committee on Elections No. 2, presented the following report:
At the regular Congressional election in 1902 the returns showed
William Lorimer, Republican, to have received 16,540 votes; Allan C.
Durborow, Democrat, 15,555 votes; H. P. Kuesch, Socialist, 536, and
Eugene W. Chapin, Prohibitionist, 667. Mr. Lorimer, having an apparent
plurality of 985, received the usual certificate of election and is the
present sitting Member from that district. Within the statutory period,
however, Mr. Durborow served a notice of contest, claiming to have been
rightfully elected to the said seat.
The contest seems to have been conducted mostly in the circuit court
of Cook County, Ill., upon questions arising over the right to have the
ballots produced and recounted. This privilege having been finally
granted by the court and the ballots investigated and recounted, it
developed that there had been cast for Mr. Lorimer 16,495 votes and for
Mr. Durborow 15,501, the recount thus increasing Mr. Lorimer's
plurality 9 votes.
From that point Mr. Durborow appears to have abandoned the contest.
Neither printed record nor brief has been submitted to the committee,
and the opportunity afforded for oral argument was not embraced. Mr.
Durborow, however, has said to the chairman of the committee that,
although he commenced the contest in good faith, he does not care to
proceed with it further, and is willing that appropriate resolutions
shall be adopted sustaining Mr. Lorimer's title to the seat. Your
committee therefore recommends the adoption of the following
resolutions:
``Resolved, That Allan C. Durborow was not elected to membership in
the House of Representatives of the United States in the Fifty-eighth
Congress and is not entitled to a seat therein.
``Resolved, That William Lorimer was duly elected to membership in
the House of Representatives of the United States in the Fifty-eighth
Congress and is entitled to a seat therein.''
The resolutions were agreed to without division.
741. The Kentucky election cases of Edwards v. Hunter and White v.
Hunter, in the Fifty-eighth Congress.--On December 6, 1904,\2\ the
Speaker laid before the House the following communication; which was
referred to the Committee on Elections No. 2:
Clerk's Office, House of Representatives,
Washington, D. C., December 6, 1904.
Sir: I have the honor to lay before the House of Representatives the
contested-election cases of Edwards v. Hunter and White v. Hunter, of
the Eleventh Congressional district of Kentucky, notices of which have
been filed with the Clerk of the House, and transmit herewith all
original testimony, papers, and documents relating thereto.
On June 24, 1904, copies of the printed record were sent to the
contestants, with notices to file brief of the facts and authorities
relied on to establish their case. August 24, 1904, D. C. Edwards, one
of the contestants, filed his brief, copies of which were sent to W.
Godfrey Hunter, contestee, and to John D. White, contestant, with
notice to file reply brief, but no reply brief has been received to
date.
Very respectfully,
A. McDowell,
Clerk House of Representatives.
Hon. Joseph G. Cannon,
Speaker House of Representatives.
This case was heard by the committee, but no report was made to the
House, and Mr. Hunter retained the seat.
-----------------------------------------------------------------------
\1\ Second session Fifty-eighth Congress, House Report No. 2687;
Record, p. 5186.
\2\ Third session Fifty-eighth Congress, Record, p. 38.
Sec. 742
742. The Colorado election case of Bonynge v. Shafroth in the Fifty-
eighth Congress.
Instance wherein returned Member, while a contest was pending in
committee, stated to the House that he was not elected.
Returned Member having acknowledged to the House, before the decision
of the committee, that contestant was elected, the House preferred to
adopt the usual resolutions before seating contestant.
Resolutions to seat a contestant are privileged, even though the case
may still be pending in committee.
On February 15, 1904,\1\ Mr. John F. Shafroth, claiming the floor for
a question of privilege, said:
Mr. Speaker, in the contested election case of Robert W. Bonynge
against John F. Shafroth it was stipulated and agreed by contestant and
contestee that the ballots cast at that election in the twenty-nine
contested precincts should be brought before the Committee on Elections
of this House and opened for the first time in the presence of its
Members. The ballots were those cast at the general election in 1902
for State officers and Representative in Congress. The object was that
the original arrangement, form, and condition of the ballots should
first be seen by the committee. The ballots were shipped to the Clerk
of the House of Representatives at the joint expense of contestant and
contestee.
At the first meeting of the committee for the hearing of this case
the ballots were presented for inspection. A subcommittee was appointed
to ascertain how many illegal ballots were contained therein. It was
agreed that in order to facilitate their work their sessions should be
secret. The subcommittee opened the ballots from three precincts, and
finding that it took one week to examine them, asked the House for
authority to employ an expert, which was granted. Since that time the
expert has been examining the ballots, and on Thursday last made his
report to the committee. The committee then ordered that each of the
parties should have one week's time in which to examine the ballots,
and if then either of us desired to send for the expert for the purpose
of examining him that we should have that privilege. After that the
case was to be set for argument before the committee.
On Thursday afternoon I commenced examining the ballots, and
continued doing so during Thursday, Friday, and Saturday. I do not
believe that 2,792 illegal votes were cast (that being my majority as
returned), yet my examination disclosed the fact that the assurances
which I had received as to the regularity of the votes in many of the
precincts were not true, and that there were illegal votes therein
which tainted the polls, and the polls so tainted gave me a greater
plurality than my returned majority in the district.
The fact was a bitter disappointment to me, but nevertheless true.
The law is that when a poll is tainted by fraud and it is impossible
to purge the poll of the fraudulent votes, the vote of the entire
precinct, legal and illegal, must be thrown out.
The committee has given me every opportunity to ascertain the illegal
vote so as to save the valid vote in those precincts. Until I saw the
ballots last Thursday, I thought the illegal vote could be detected and
separated from the legal vote, but I must confess that my inspection
has convinced me that it is impossible to do so in this case.
The law being as I have stated and the number of precincts tainted
containing majorities for me greater than my returned majority, I must
say that if I were a judge upon the bench considering this case I would
be compelled to find against myself, and as the vote in the contested
precincts aggregates less than one-tenth of the vote in the
Congressional district, I would be compelled to find that according to
law Mr. Bonynge is entitled to the seat. [Applause.]
I did my best to have an honest election. My law partner, with my
approval, organized a citizens' committee composed of both Republicans
and Democrats who desired a fair election. The headquarters of that
committee, as shown by the evidence in this case, were in the law
offices of Rogers, Shafroth & Gregg, Denver, Colo.
-----------------------------------------------------------------------
\1\ Second session Fifty-eighth Congress, Record, pp. 1986, 1988.
Sec. 743
I have always been in favor of pure politics, and when the test is
applied to an election at which I was voted for as one of the
candidates upon the ticket I should not shirk my duty or change my
convictions concerning honest elections.
I therefore will say to the Committee on Elections No. 2 and to the
Members of this House that they can seat Mr. Bonynge at their earliest
convenience.
As this is the last time I will have the opportunity of addressing
the House, I want to thank the Committee on Elections No. 2, and
particularly the chairman, Mr. Olmsted, and the subcommittee, Mr.
Miller, Mr. Currier, and Mr. Sullivan, for the fair and impartial
manner in which they proceeded to investigate this case. Every
suggestion which I made as to the investigation was readily concurred
in.
I wish also to say that I appreciate the repeated declarations of Mr.
Bonynge in the record that I was not a party to or in any manner
connected with any of the frauds or irregularities charged. I also
desire to thank the Members of this House for the uniform courtesy and
evidences of respect which I have received during the eight years of my
service in Congress. I have formed friendships here upon both sides of
the Chamber which I shall cherish through life. I fully appreciate the
high character of the men who compose this body, but it is only when I
am about to leave that I fully realize the distinguished honor it is to
serve as a Member in the greatest legislative body on the face of the
globe. Wishing you all a happy and prosperous future, I will say good-
bye. [Loud applause.]
Mr. Speaker, I will ask the chairman of the committee, if he is
ready, to present the usual resolutions in a case of this kind.
Mr. Marlin E. Olmsted, of Pennsylvania, chairman of Elections
Committee No. 2, asked unanimous consent that Mr. Bonynge, the
contestant, be sworn in.
Mr. Sereno E. Payne, of New York, objected that this should not be
done without a resolution from the committee. [The committee had not
reported on the case.]
Later Mr. Olmsted asked unanimous consent for the consideration of
the following resolutions:
Whereas John F. Shafroth, a Member of this House returned as elected
from the first district of Colorado, and whose seat is contested by
Robert W. Bonynge, has this day in a frank and honorable manner, very
creditable to himself, informed the House that after a consideration
and examination of the ballots he is convinced that Robert W. Bonynge
is entitled to the seat: Therefore
Resolved, That John F. Shafroth was not duly elected and is not
entitled to a seat in this House.
Resolved, That Robert W. Bonynge was duly elected and is entitled to
a seat in this House.
The Speaker \1\ said:
In the opinion of the Chair the resolution is privileged.
Thereupon the resolution was agreed to.
743. The New York election case of Chesebrough v. McClellan, from New
York, in the Fifty-fourth Congress.
It being demonstrated to the Elections Committee that contestant had
withdrawn, the House confirmed the title of sitting Member.
On January 15, 1896,\2\ the Committee on Elections No. 2 reported in
the case of Chesebrough v. McClellan, from New York. The contestant, in
his notice of contest, had alleged as his grounds the casting of
illegal votes at the election; and that during the political canvass
preceding the election, the sitting Member had instigated the issue of
a circular falsely charging him with opposing the passage of a State
law for the benefit of cyclers; and that because of that circular many
electors were
-----------------------------------------------------------------------
\1\ Joseph G. Cannon, of Illinois, Speaker.
\2\ First session Fifty-fourth Congress, House Report No. 48;
Rowell's Digest, p. 513.
Sec. 744
prejudiced to vote against contestant. The sitting Member replied to
the notice of contestant, denying the casting and counting of illegal
votes, denying that he had instigated the issuing or circulation of the
circular, but alleging it to be a fact that the contestant had in fact
signed his name to a petition in May, 1887, remonstrating against the
legislation in question.
After serving the notice of contest the contestant had addressed to
sitting Member a letter agreeing to withdraw from the contest if the
sitting Member would exhibit to him the petition in question. The
petition was duly exhibited; and later contestant notified sitting
Member that he withdrew from the contest, and requested the return of
the notice of contest.
Afterwards, in February, 1895, the notice of contest and answer were
filed with the Clerk of the House, together with the affidavit of
contestee that no evidence had been taken in the case. The committee
examined these, as well as the letters of the contestant, found that no
testimony had been taken in the case, and reported that the contestant
had withdrawn from the contest.
Therefore they reported resolutions declaring the contestant not
elected and the sitting Member entitled to his seat.
On January 15 \1\ the House agreed to the resolutions without
division.
744. The Illinois election case of Belknap v. McGann in the Fifty-
fourth Congress.
Instance wherein the sitting Member appeared before the Elections
Committee and orally conceded the election of contestant.
The sitting Member having announced that he conceded the election of
contestant, the House passed the usual resolutions for seating the
contestant.
On December 27, 1895,\2\ the Committee on Elections No. 1 reported in
the case of Belknap v. McGann, of Illinois, that the sitting Member had
appeared before the committee and orally conceded the election of the
contestant. The committee complimented the action of Mr. McGann, and
the House agreed to the usual resolutions declaring Mr. McGann not
elected and Mr. Belknap elected and entitled to the seat. Mr. Belknap
was thereupon sworn in.
745. The Alabama election case of Comer v. Clayton in the Fifty-fifth
Congress.
Instance wherein, during the taking of testimony, a contestant put in
an attested notice of his withdrawal.
The contestant having withdrawn, the House passed a resolution
confirming the title of sitting Member.
On January 19, 1898,\3\ Mr. Romulus Z. Linney, of North Carolina,
from the Committee on Elections No. 1, submitted a report in the case
of Comer v. Clayton, from Alabama. The committee state that the
contestant formerly withdrew after the taking of testimony had
proceeded for some time, and consequently the testimony had not been
printed or opened by the committee. As part of their report the
committee present contestant's notice of withdrawal, which was duly
attested.
-----------------------------------------------------------------------
\1\ Journal, p. 117.
\2\ First session Fifty-fourth Congress, House Report No. 5; Journal,
pp. 79, 80.
\3\ Second session Fifty-fifth Congress, House Report No. 195;
Rowell's Digest, p. 554; Journal, p. 113.
Sec. 746
The committee presented resolutions confirming the title of contestee
to the seat, which were agreed to by the House without debate or
division.
746. The Kentucky case of Hunter v. Rhea in the Fifty-fifth Congress.
A contestant having withdrawn his contest and accepted an office
incompatible with membership, the House confirmed the title of sitting
Member.
Instance wherein a contestant went before the Elections Committee and
announced his withdrawal from the contest.
The Elections Committee asserted that it might proceed with an
election case after the withdrawal of the contestant.
On May 17, 1898,\1\ Mr. S. A. Davenport, of Pennsylvania, from the
Committee on Elections No. 1, submitted a report in the case of Hunter
v. Rhea, from Kentucky, as follows:
By the official returns the contestee was given a majority of 337;
the contestant claimed, on his theory of the case, to be elected by a
majority of 468.
The issues relate chiefly to questions involving the qualifications
of certain voters, upon which differences of opinion naturally arise
among honest judges of election and good lawyers.
The testimony in the case was printed and briefs were filed with the
committee. Before the case was set for hearing the contestant appeared
before the committee and declared that he no longer desired to
prosecute his contest; that since he began the same he had been
appointed by the President minister of the United States to Guatemala.
He has entered upon and is now discharging the duties of that office.
Your committee is of opinion that it does not lose jurisdiction of
the case by reason of this announced purpose of contestant to desist
from the contest, but can proceed, if it so desires, to hear and report
upon it as in other cases.
But in the absence of any suggestion of collusion between the
parties, in view of the character of the issues raised, and aided by
the facts already recited, we do not deem it necessary to examine in
detail the voluminous record in the case, and deem it our duty to
confirm contestee's title to the seat he now holds.
In accordance with these conclusions the committee reported a
resolution confirming the title of sitting Member to the seat, and the
same was agreed to by the House without debate or division.
747. The Alabama election case of Clark v. Stallings in the Fifty-
fifth Congress.
Instance wherein a contestant appeared before the Elections Committee
and withdrew his case.
On January 18, 1898,\2\ Mr. R. W. Tayler, of Ohio, from the Committee
on Elections No. 1, submitted a report in the case of Clark v.
Stallings, from Alabama, which was merely an announcement that the
contestant took no steps after filing his notice of contest, and
appeared before the committee on January 14, 1898, and stated that he
had no desire to further press his contest. The committee therefore
presented resolutions confirming the title of the sitting Member to his
seat, and the House agreed to the same without debate or division.
-----------------------------------------------------------------------
\1\ Second session Fifty-fifth Congress, House Report No. 1356;
Rowell's Digest, p. 557; Journal, p. 565.
\2\ Second session Fifty-fifth Congress, House Report No. 188;
Rowell's Digest, p. 554; Journal, p. 108.
Sec. 748
748. The Delaware election case of Willis v. Handy in the Fifty-fifth
Congress.
The contestant having announced to the committee his abandonment of
the contest, the House confirmed the title of sitting Member.
On April 30, 1898,\1\ Mr. R. W. Tayler, of Ohio, from the Committee
on Elections No. 1, submitted a report in the Delaware case of Willis
v. Handy, saying:
The contestee, by the official returns, received 15,407 votes and the
contestant 11,159. A notice of contest was served on the contestee, but
the contestant took no further formal action. He appeared before your
committee and declared his opinion that the contestee's seat could not
be successfully attacked and that he had abandoned the contest.
Therefore the committee recommended resolutions confirming the
sitting Member in his seat, which were agreed to by the House without
debate or division.
749. The election case of Lyon v. Bates, from Arkansas Territory, in
the Seventeenth Congress.
A contestant having procured no testimony in support of his petition,
the Elections Committee recommended his withdrawal.
On December 19, 1821,\2\ in the contested election case of Lyon v.
Bates, from Arkansas Territory, the Committee on Elections recommended
that the petitioner have leave to withdraw, since he had produced no
testimony in support of his allegations that the returns on which the
sitting Member obtained the seat were to a fatal extent improper and
illegal.
750. The Louisiana election case of Smith v. Robertson in the Forty-
seventh Congress.
A contestant having failed to prosecute his case according to law or
to take testimony, the House dismissed the contest.
On March 4, 1882,\3\ Mr. Samuel H. Miller, of Pennsylvania, from the
Committee on Elections, presented this report:
That after hearing argument, and after a full examination of the
papers, it was unanimously agreed by the subcommittee having the case
in charge that the contestant had not prosecuted his case according to
law; that he failed to take evidence to substantiate his charges of
contest; and therefore recommend that the contest be dismissed; which
the full committee, upon due consideration, concluded to recommend. The
committee therefore report the following:
Resolved, That the contest of Alexander Smith v. E. W. Robertson, in
Sixth Louisiana district, be dismissed without prejudice.
The House agreed to the resolution without debate or division.\4\
751. The Louisiana election case of Merchant and Herbert v. Acklen in
the Forty-sixth Congress.
A contestant having failed to file the brief required by law, the
Elections Committee notified him to appear and show cause why his case
should not be dismissed.
-----------------------------------------------------------------------
\1\ Second session Fifty-fifth Congress, House Report No. 1239;
Rowell's Digest, p. 557; Journal, p. 519.
\2\ First session Seventeenth Congress, Contested Elections in
Congress from 1789 to 1834, p. 372.
\3\ First session Forty-seventh Congress, House Report No. 631; 2
Ellsworth, p. 284.
\4\ Journal, p. 728; Record, p. 1610.
Sec. 752
The contestant having failed to respond to a notice to appear, the
House dismissed the case.
On March 7, 1881,\1\ Mr. William M. Springer, of Illinois, from the
Committee on Elections, submitted the report of the committee in the
cases of Merchant and Herbert v. Acklen, from Louisiana. The report was
as follows:
That the notices of contest and answers thereto were referred to the
Committee on Elections and filed with the clerk of said committee on
the 13th day of April, 1879. Evidence taken in the above cases was
printed on the 15th day of January, 1880, and copies of the same were
sent to the contestants, as required by the rules of the committee, by
the clerk of said committee, with an official notice to prepare briefs
within twenty days from the 25th day of January, 1880, to which no
attention was given by said contestants.
On the 21st day of May, 1880, the clerk of the committee was directed
by resolution to telegraph to Messrs. Merchant and Herbert to appear
before the committee either in person or by attorney on the 29th day of
May, 1880, and show cause why their cases should not be dismissed on
account of the failure to file briefs as directed. No attention was
given to these dispatches, and the parties neither appeared in person
nor by attorneys, as notified. The said contestants were again notified
by registered letters, on the 22d day of December, 1880, to appear
before the Committee on Elections on the 11th day of January, 1881, and
show cause why the cases should not be dismissed, and to this no reply
was made.
We therefore respectfully recommend the adoption of the following
resolution:
Resolved, That Joseph H. Acklen was duly elected and is entitled to a
seat in this House as a Representative in the Forty-sixth Congress from
the Third Congressional district of the State of Louisiana.
Resolved, That Robert O. Herbert and W. B. Merchant have leave to
withdraw their papers of contest in this case.
The House agreed to the resolutions at once, without debate or
division.\2\
752. The Indiana election case of McCabe v. Orth in the Forty-sixth
Congress.
A contestant having failed, through a series of adverse incidents, to
produce testimony, the House, on account of the lateness of the
session, gave him leave to withdraw and confirmed the title of sitting
Member.
A contestant having by affidavit given his reasons for asking further
time to take testimony, the Elections Committee framed a resolution
allowing the time.
On February 15, 1881,\3\ Mr. William H. Calkins, of Indiana, from the
Committee on Elections, submitted the report of the committee on the
Indiana election case of McCabe v. Orth.
The sitting Member had been returned by an official majority of 98
votes.
The report states the preliminary facts:
On the 1st day of November, 1878, Mr. Orth received his certificate
in due form from Hon. James D. Williams, then governor of Indiana.
Within thirty days thereafter, and on the 12th day of November, 1878,
Mr. McCabe served notice of contest upon Mr. Orth, specifying, as is
alleged, the grounds of contest particularly, therein. This notice
never came into the possession of your committee.
On the 5th day of December thereafter it is alleged that Mr. Orth
fully answered each ground and specification of contest and served the
same on that day on Mr. McCabe.
It is alleged by Mr. McCabe in a memorial presented to your
committee, duly verified by him, that he did not take any testimony to
support the several allegations in his notice of contest during the
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\1\ Third session Forty-sixth Congress, House Report No. 382; 1
Ellsworth, p. 345.
\2\ Record, p. 2286.
\3\ Third session Forty-sixth Congress, House Report No. 260: 1
Ellsworth, p. 320.
Sec. 752
time allowed by law, for the reason, among others, that there was a
contest pending between other contestants, which was in process of
trial before the proper tribunal in the county of Montgomery, which
would, and which did, develop substantially the evidence relied upon by
him to overturn the declared result.
Contestant further urged illness in his family as a reason for not
taking testimony within the time prescribed by law.
He further alleged that as early as February, 1879, he discovered
evidence tending to support an allegation of bribery, which, if
sustained, would destroy the official majority of sitting Member.
Of this memorial the report says:
This petition or memorial was presented to your committee on the 10th
day of June, 1879. There were two other affidavits subsequently filed
by Mr. McCabe, signed by Mr. Dobblebower and Mr. Paterson, in which
affidavits each of the affiants testified that, on information and
belief, facts tending to establish the bribery aforesaid might be
elicited if time were given to take depositions.
In answer to this memorial supported by the affidavits of Mr. McCabe
and the two witnesses aforesaid, Mr. Orth promptly filed his own
affidavit with your committee, denying generally the specifications in
Mr. McCabe's memorial and affidavit so far as it affected his right to
a seat in Congress, and specifically denying any connection with or
knowledge of the bribery alleged by Mr. McCabe. Numerous affidavits are
also filed in support of Mr. Orth's claim.
An issue being thus made, your committee were called upon to decide
whether under the circumstances additional time should be given the
contestant to take testimony, and the contestee to rebut, when it was
decided on the 23d day of March, 1880, to grant time, and the following
resolution was adopted:
``Resolved, That James McCabe, contesting the right of the Hon.
Godlove S. Orth to a seat in this House as a Representative from the
Ninth Congressional district of the State of Indiana, be, and he is
hereby, authorized to serve upon the said Orth within ten days after
the passage of this resolution a particular statement of the grounds of
said contest, and that the said Orth be, and he is hereby, required to
serve upon the said McCabe his answer thereto in twenty days
thereafter, and that both parties be authorized and required to proceed
within ten days after the adjournment of this session of Congress to
take evidence in the case, in the manner and subject to all provisions
of law now in force applicable to the taking of evidence in contested
election cases, the same as if the contestant had heretofore proceeded
in time to take evidence in support of his claim to the seat.''
By some inadvertence this resolution was never reported to the House,
and the House consequently never acted upon it.
No testimony having been taken during the time allowed by law, and
the resolution not having reached the House, whereby testimony might be
taken under the order of the House, the case again came up at a meeting
of the committee at this session of Congress, during last December.
Your committee took the case up for consideration, and it being deemed
unnecessary to report the aforesaid resolution to the House for action,
because there did not remain sufficient time for the taking and
certifying of testimony, or for the action of the committee of the
House during the remaining time of this Congress, your committee
reconsidered its former action, and on the 11th day of January, 1881,
passed the following resolution:
``Resolved, That in view of the short time remaining before the
adjournment, and the improbability of taking evidence under the
statute, the resolution heretofore passed March 23, 1880, in reference
to the contest in the case of McCabe v. Orth, be, and is hereby,
rescinded, and the contest be, and is hereby, discontinued.''
In view, therefore, of all the circumstances, your committee
recommend the passage of the following resolution:
``Resolved, That the contestant, James McCabe, contesting the right
of the Hon. Godlove S. Orth, from the Ninth Congressional district of
Indiana, to a seat in the Forty-sixth Congress, have leave to withdraw
his papers in said contest, and that the Hon. Godlove S. Orth's title
to his seat in the said Congress be, and the same hereby is,
confirmed.''
Sec. 753
On February 15, 1881,\1\ the House agreed to the resolution without
debate or division.
753. The Florida election case of Witherspoon v. Davidson in the
Forty-seventh Congress.
A contestant having failed to make up his case legally, filed an
affidavit explaining his failure and asked a special investigation by
the House.
A contestant being apparently unable to perfect his case, the
committee recommended that he have leave to withdraw his contest
without prejudice.
On June 6, 1882,\2\ Mr. A. A. Ranney, of Massachusetts, from the
Committee on Elections, submitted the report of the committee in the
Florida case of Witherspoon v. Davidson.
This was a case where no notice of contest, no answer, and no legally
taken evidence came before the committee. Contestant appeared and
produced an affidavit charging gross irregularities and frauds in the
election, stating that he caused notice to be duly served of a contest,
and further setting forth--
That he employed as his attorney T. W. Brevard, esq., and paid him
$125 as a retaining fee to prosecute his case against his opponent, the
said Davidson, and that the said Brevard utterly failed to do so, and
betrayed him and sacrificed all his interests in the contest, and your
deponent has reason to believe and does believe that the said Brevard
entered into collusion with and conspired with Davidson for the purpose
of defeating him, deponent, in his contest. He took from him, and
declined and refused to return to your deponent, his notice of contest,
the answer thereto, and other valuable papers and evidences essential
to the successful prosecution of the case.
He further deposes and says that his witnesses were intimidated and
prevented from appearing to testify in his behalf by threats of
violence, and of being discharged from labor, and of being ejected from
rented lands and houses, and by refusals of stock and implements to
cultivate and gather their crops, and other threats of persecution and
proscription if they should attempt to testify in behalf of your
deponent.
In proof of these facts your deponent cites particularly a riot
instigated in Madison County by the supporters and partisans of the
Democratic party for the purpose of intimidating witnesses, at which
riot one Patterson was killed, on account of which many arrests were
made and the parties cast into jail, which had the effect of
intimidating a large number of deponent's witnesses to an extent which
made it impossible to induce them to testify in his behalf.
He further deposes and says that in some cases (that of Christie
particularly), the officers of the law before whom appointments were
made to take testimony, and where witnesses had been secured at great
trouble and expense, the officer failed or refused to attend and hear
testimony taken. By these and other methods only known to the lawless
and mob-ridden communities of the South your deponent was defrauded out
of his election and denied the right of exposing and proving the fraud,
under the act of Congress made and provided in such cases. Therefore he
prays that a committee be appointed with authority to proceed to
Congressional district aforesaid and make a thorough investigation and
report on the conduct and result of said election, with the view of
ascertaining and determining who was lawfully elected as Representative
in the Forty-seventh Congress of the United States from said first
district of the State of Florida.
Sitting Member filed a counter affidavit denying the charges. The
report says:
The committee caused a notice to be sent and delivered to the counsel
named in contestant's affidavit, asking him to produce the papers in
his hands, but he has omitted and declined to do so, he having taken no
notice of the letter sent him, * * * save to acknowledge the receipt of
same.
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\1\ Record, p. 1604.
\2\ First session Forty-seventh Congress, House Report No. 1278; 2
Ellsworth, p. 163.
Sec. 754
Contestee exhibited to the committee the copies of the notice of
contest served upon him and his answer thereto, together with a
replication and amended notice, copies of which are annexed (Exhibits
A, B, C), and moved to dismiss the proceedings. It was claimed and it
appears that the notice of contest was insufficient and inadequate. It
alleges certain frauds very generally, but does not set up or allege
that contestant was elected. The replication enlarges the notice,
however, and obviates some if not all of the objections.
The committee are of the opinion that contestant's failure to
prosecute his contest arose from the causes which he sets forth in his
affidavit. But they see no way of procuring the papers, or of
investigating the case further, unless the House take the matter in
hand and do it in their own way, either by sending a special committee
to Florida to take the evidence or otherwise.
There is nothing which implicates contestee in any of the wrongful
proceedings referred to.
The committee report the facts, and recommend that the contestant
have leave to withdraw his contest without prejudice.
This report was submitted to the House on June 6.\1\ It was stated
that a member of the committee would file minority views, but this does
not appear to have been done. Neither does it appear that the report
was ever acted on by the House.
754. The Mississippi election cases of Newman v. Spencer, Ratcliff v.
Williams, and Brown v. Allen, in the Fifty-fourth Congress.
Contestant not having filed any testimony, the House confirmed the
title of sitting Member.
The Elections Committee declined to consider an a1legation that an
election, otherwise unimpeached, was invalid because the constitution
of the State was void.
On April 30, 1896,\2\ Mr. Samuel W. McCall, of Massachusetts, from
the Committee on Elections No. 3, submitted reports in the Mississippi
cases of Newman v. Spencer, Ratcliff v. Williams, and Brown v. Allen.
These cases involved a single question, and the reports are very nearly
identical. The first report presents the whole of each case:
In this case no testimony has been presented to the committee. It is
alleged that some was taken, but nothing has been filed with the Clerk
of the House. The contestant, however, contends that section 241 of
article 12 of the constitution of the State of Mississippi, adopted in
1892, is in contravention of the Constitution of the United States and
of the act of Congress of February 23, 1870, entitled ``An act to admit
Mississippi to representation in the Congress of the United States,''
and has filed a brief in support of his contention. He claims that the
above-named section of the State constitution is void, and that
therefore no valid election was, or could be, held in the Seventh
Congressional district of the State of Mississippi.
As the committee is of the opinion that a decision that the
constitution of the State of Mississippi was invalid would not
necessarily deprive the State of representation in Congress, it does
not attempt to decide that question, and in absence of any testimony on
behalf of the contestant it recommends the adoption of the following
resolutions: [Here followed resolutions in the usual form.]
The resolutions, which confirmed the titles of the sitting Members to
the seats, were agreed to by the House on the same day the reports were
presented.
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\1\ Journal, p. 1420; Record, p. 4577.
\2\ First session Fifty-fourth Congress, House Reports Nos. 1536,
1537, and 1538; Rowell's Digest, p. 541; Journal, p. 440.
Sec. 755
755. The Texas election case of Davis v. Culberson in the Fifty-
fourth Congress.
A contestant having failed to produce testimony or respond to
notification from the Elections Committee, the House confirmed the
title of the returned Member.
On January 30, 1896,\1\ Mr. Samuel W. McCall, of Massachusetts, from
the Committee on Elections No. 3, submitted a report in the case of
Davis v. Culberson, of Texas. The report says:
The record in this case consists of the notice of contest, the
answer, and an affidavit of David B. Culberson, all of which were filed
by the contestee. Since the filing of the notice of contest the
contestant appears to have done nothing in prosecuting his claim to the
seat. He has not produced any testimony, and, although twice notified
by letter, directed to his place of residence, he has not appeared
before the committee.
In view of these facts, the committee did not believe the right of
sitting Member to his seat should longer remain in question and so
recommended resolutions confirming his title.
These resolutions were agreed to on the same day.
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\1\ First session Fifty-fourth Congress, House Report No. 180;
Journal, p. 163; Rowell's Digest, p. 529.