UNIVERSITY OF CALIFORNIA AT LOS ANGELES A THE MISCELLANEOUS DOCUMENT OF THE HOUSE OF REPRESENTATIVES FOR *HK SECOND SESSION OF THE FIFTY-FIRST CONGRESS. 1890-'91. WITH INDEX. IN SIXTEEN VOLUMES. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1891. CONTENTS OF THE VOLUMES. Vol. I..N08. 1 to 127, inclusive, except Nos. 12, 13, 14, 76, 77, 78, 108. Vol. 2.. No. 12. Vol. 3.. No. 13. Vol. 4.. No. 14. Vol. 5.. No. 76. Vol. 6.. No. 77. Vol. 7.. No. 7a Vol. 8.. No. 108, 133, 134, 135 Vol. 9.. No. 128. Vol. 10.. No. 129, pt I. Vol. 11.. No. 129, pt. 2. Vol. 12.. No. 130. Vol. 13.. No. 131. Vol. 14.. No. 132. Vol. 15.. No. 136. Vol. 16.. No. 137. Subjects. No. Vol. A. Alexander, John W., administrator, report of Conrt of Claims on case of. 121 1 Anacostia and Potomac River Railroad, annual report of . 84 1 Army, retired officers, resolution relative to in the civil service 92 1 Astronomical observations for 1886 132 14 Ay res, Asa B., et al., resolution to refer claims to Court of Claims 120 1 B. Bailey, John C., administrator, report of Court of Claims on case of... 118 1 Burnett, J. C., administrator, report of Conrt of Claims on case of...... 71 1 Barnett, Julia, resolution to refer claim to Court of Claims 90 1 Beachley, Ezra and Jonas, executors, report of Conrt of Claims on case of 51 1 Boarman, Aleck, resolution to impeach , 117 1 Brashear, Martha, administratrix, report of Conrt of Claims on case of. 97 1 Brown, F. W., administrator, rep6rt of Court of Claims on case of 16 1 Bruen, Capt. John T., resolution to refer claim to Court of Claims...... 98 1 C. Calhoon, Clement, report of Court of Claims on case of 21 1 Canter, Isaac W., administrator, report of Court of Claims on case of .. 62 1 Capitol, North O street and South Washington Railroad Company, an- nual report of 95 1 Caruth, Thomas, report of Court of Claims on case of 60 1 Chapin, Virginius P., report of Court of Claims on case of 81 1 Chapman, William H., report of Court of Claims on case of 42 1 Christian Church, of Marshall, Mo., resolution to refer claim to Court of Claims 1 126 1 Claims, report of Treasury Department in relation to certain specified in House Ex. Doc. No. 314. Fifty-first Congress, first session 22 1 Clark, Samuel I., assignee, report of Court of Claims on case of.... .... 65 1 Clem, Anderson A., report of Court of Claims on case of 67 1 Clerk of the House of Representatives : , Annual report of the clerks and employ 6s in the House 6 1 Report on inventory of public property in possession of.... 10 1 Commissioner of Fish and Fisheries, expenditures by the 5 1 Congressional Library, report on construction of building for the 4 1 Conrad, Ebenezer J. et al., report of Court of Claims on case of 17 Conrad. John D. f report of Court of Claims on case of..... 28 1 248080 IV INDEX TO HOUSE MISCELLANEOUS DOCUMENTS. Subject. No. Constitution of the United States, relating to violation of the four- teenth amendment to the Consular reports Contested-election cases, digest of 137 Contested-election cases, print digest of, in the Fifty -first Congress ... 105 Court of Claims : Report of the, on judgments of the 11 Report of dismissed cases by the 40 Creek Indians, protest of delegates of the, in relation to jurisdiction of Federal courts in Indian Territory 104 Crockett, John T., report of Court of Claims on case of 45 D. Daub, Ezra, report of Court of Claims on case of 24 Deck, George, report of Court of Claims on case of 54 De Loach, Claiborne, estate of, resolution to refer claim to Court of Claims 101 Department of Labor, expenditures in the 9 District of Columbia, Zoological Park Commission, final report of 93 Donato, Belate A. et al., resolution to refer claims to Court of Claims.. 115 Doorkeeper, House of Representatives : Report of property in possession of Report of sale of waste paper 8 . Eckington and Soldiers' Home Railway Company, annual report of 85 Elkins, William A., report of Court of Claims on case of 48 Ely, Robert M. et al., resolution to refer claims to Court of Claims 106 Embry. W. J., executor, report of Court of Claims on case of 64 F. Fairex, Mathilde M., administratrix, report of Court of Claims on case of 35 Fish Bulletin, report for 1889 131 Fish and Fisheries, report of the Commissioner of, on expenditures 5 Fish hatchery, resolution relative to, in northern New York 46 Fisher, Isaac, et al., resolution to refer claims of to Court of Claims 110 Fisher, John, et al., resolution to refer claims to Court of Claims 113 Flagg, Robert S. and Thomas G., executors, report of Court of Claims on case of 61 Flower, Mary J., report of Court of Claims on case of 59 Fort Brown military reservation, relation to rent of 100 Freedmans' Savings and Trust Company, annual report of the commis- sioner for 1890 -26 G. Galloway, Thomas S., administrator, report of Court of Claims on case of 37 Gay, Hon. Edward J., deceased, eulogies upon 108 Geological Survey, bnlletons 62 to 65 136 Georgetown Barge, Dock, Elevator and Railway Company, report of names of stockholders and condition of 87 Georgetown and Tennallytown Railway Company, annual report of.. -86 Gillilan, Ruth S., administratrix, report of Court of Claims on case of.. 63 Gray, George L., report of Court of Claims on case of 79 H. Heberlein, August, estate of, resolution to refer claim to Court of Claims 107 Hightower, Thomas, report of Court of Claims on case of 66 Horse Diseases, report relating to 130 INDEX TO HOUSE MISCELLANEOUS DOCUMENTS. Subject. No. House of Representatives : Clerk of (Hon. Edward McPherson), annual report of clerks and employe" of the 6 report on public property in pos- session of 10 Committees, list of standing and select 2 Doorkeeper, report of property, 7 report of sale of waste paper 8 Galleries of the, removal of partition and, on the south side of 125 Members, list of 1 alphabetical list of 3 Special messengers, resolution to pay 72 Howery , Le \vis, report of Coort of Claims on case of 57 I. Indian Territory, protest of Creek delegates against bill extending jurisdiction of Federal courts in 104 J. Jews in Russia, relative to.... . 103 K. Keedy, C. M., George W., and Samuel J., executors, report of Court of Claims on case of 75 L. Libr.iry of Congress, report on construction of building for 4 Lilly, Elijah, report of Court of Claims on case of . ^ 33 M. Manson, William T., report of Court of Claims on case of 30 Martin, Edmund H., heirs of, report of Court of Claims on case of 43 Meaher & Meaher, resolution to refer claim to Court of Claims 114 Merrifield, Samuel B., report of Court of Claims on case of 123 Mississippi River, levees of the 127 Mullendore, Daniel M., report of Conrt of Claims on case of 25 N. National Home for Disabled Volunteer Soldiers, report of the Board of Managers of the, for 1890 38 Neidlinger, Samuel, estate of, report of Court of Claims on case of 44 New Mexico, the secretary of, letter from the, in relation to Spanish land-grant court 96 New York, resolution relative to fish hatchery in northern 46 Nichols, Henry C., report of Court of Claims on case of 119 Norton, Sarah E., report of Court of Claims on case of 47 Nutt, J ulia A., executrix, report of Court of Claims on case of 82 P. Peacock, Martha A., report of Conrt of Claims on case of 53 Phelan, Hon. James, eulogies upon 135 PhetzingtUoruelius, resolution to refer claim of, to Court of Claims.... 116 Pierson, Charles A., et al., resolution to refer claims to Court of Claims. Ill Ponder, W. M., administrator, report of Court of Claims on case of 55 Pope, Henry L. , report of Court of Claims on case of.......... 94 Public property : Report of Clerk of House of Representatives on, in possession of. 10 Report of Doorkeeper, House of Representatives on sale of waste paper 8 VI INDEX TO HOUSE MISCELLANEOUS DOCUMENTS. Subject. ' No. Public Property Continued. Keport of Doorkeeper, House of Representatives, submitting inven- tory of 7 Q. Quinn. Robert, report of Court of Claim on case of i 34 E. Raiford, Philip, administrator, report of Court of Claims on case of 18 Reformed Church, Sharpsburgh, Md., report of Court of Claims on case of 32 Rogers, Samuel E., report of Court of Claims on case of 29 Roulette, William, report of Court of Claims on case of 68 .Russell, James B., report of Court of Claims on case of 124 Russia, relative to Jews in 103 S. Saffold, Mary E., report of Court of Claims on case of 99 Secretary of War, resolution requesting the, to furnish information relative to retired army officers in the civil service 92 Sitting Bull, Chief, resolution relative to arrest and killing of 80 Skaggs, Ewing M., estate of, report of Court of Claims on case of 73 Smith, Grafton F., administrator, report of Court of Claims on case of. 52 Smithsonian Institution, report ot expenditures of the 39 Smithsonian Institution, annual repert for 1890 129 South, William B., executor, report of Court of Claims on case of 36 Spanish land-grant court, letter from the secretary of New Mexico in relation to 96 Special messengers, House of Representatives, resolution for appro- priation to pay salary of 72 Spencer, C. O., report of Court of Claims on case of 70 Stone, Jeff. M., report of Court of Claims on case of 50 Stout, Lindsay, representatives of, resolution to refer claim to Court of Claims 109 Swart, Barnett T., report of Court of Claims on case of 74 T. Tally, J. M. administrator, report of Court of Claims on case of 56 Thompson, Abel A., report of Court of Claims on case of 102 Tounoir, Lucile, administratrix, report of Court of Claims on case of.. . 23 Treasury Department, report of Second Comptroller in relation to cer- tain claims included in House Ex. Doc. No. 314 Fifty-first Congress, first session 22 Turner, John, report of Court of Claims on case of 58 Turuley, Piirmeuus T., report of Court of Claims on case of 19 Tweedy, Robert E., report of Court of Claims on case of V. Van Camp, Aaron, report of Court of Claims on case of 81 Von Balsan, R., administrator, report of Court of Claims on case of 27 Voters. (See Constitution of the United States.) Vulture, Brig, report of Court of Claims on case of 41 W. Waddell, Charlotte A., executrix, report of Court of Claims on case of. 69 War of the Rebellion, Official Records of: Series 1, vol. 31, part 1 12 Series 1, vol. 31, part 2 13 Series.l, vol. 31, part 3 14 Series 1, vol. 32, part 1 76 INDEX TO HOUSE MISCELLANEOUS DOCUMENTS. VII Subject. No. Vol. War of the Rebellion, Official Records of Continued. Series 1, vol. 3-2, part 2 77 6 Series 1, vol. 32, part 3 78 Washington and George town Railway Company, annual report of 91 1 Walker, Hon. James, eulogies upon 134 Watsou, Hon. Lewis, eulogies upon 133 8 Watson Samuel report of Court of Claims on case of 15 1 Western Miama Indians, report of Court of Claims on case of 83 Wheeler, William B., executor, report of Court of Claims on case of 49 Williams, Mary O., report of Court of Claims on case of 20 1 Woodyard, Mathew, report of Court of Claims on claim of Y. foung, Thomas P., et al., resolution to refer claims to Court of Claims.. 112 1 Youngs, Fannie, and Henrietta G.,executrics, report of Court of Claims on case of 31 1 Z. Zoological Park Commission, final report of 93 1 51ST CONGRESS, ) HOUSE OF REPKESENTATIVES. Mis. Doc. 2d Session. ) \ ^o. 137. DIGEST CONTESTED-ELECTION CASES IN THE FIFTY-FIRST CONGRESS. COMPILED, UNDER RESOLUTION OF THE HOUSE, BY CHESTER H. ROWELL, CLBRK TO THE COMMITTEE ON ELECTIONS. WASHINGTON: GOVERNMENT PRINTING OFFICE, 1891. Resolved, That there be printed and bound for the use of the House the usual number, to wit, one thousand six hundred and seven copies of the Digest of Contested Election Cases in the Fifty-first Congress, together with an index to the same, to be prepared by the clerk of the Committee on Elections, for which and for the necessary preparation and superintendence thereof there shall be paid said clerk by the Clerk of the House, out of the contingent fund, the sum of five hundred dol- lars; said sum to be paid when the manuscript of the work shall have been delivered to the Public Printer. Passed the House February 5, 1891. (See Eecord, Fifty -first Con- gress, second session, pages 2198 to 2201.) 2 PREFACE. The volumes of this series are known by custom and courtesy as " digests," but none of them have attempted to be anything more than compilations of reports, and since the volume compiled by Clarke and Hall, in 1834, none of them have been fully indexed, and most of them not indexed at all. In conformity with the plan of the series, this vol- ume is also a compilation of reports, that is, it contains all the reports in full ; but an attempt has been made to give in the index a real digest of the law points discussed in the reports. It is perhaps needless to say that committee reports, having the form of arguments addressed to the House, lend themselves much less readily to reduction to digest form than do the decisions of courts. A consideration of this difficulty will, it is hoped, explain and excuse some of the shortcomings of the digest. On account of the unindexed condition of most of the previous vol- umes, I have ventured to include under each head of the digest a reference index to prior adjudications of the same question, where any exist. This list of references does not profess to be complete; it is con- fined to the points covered by the reports in this volume, and may not be entirely complete even as to them, but it will be found to be consid- erably fuller than the lists of references given in either Paine or Mc- Crary, and, in the absence of any collected digest of all the Congres- sional cases, may be of some convenience in looking up precedents. No attempt has been made to analyze the decisions referred to, except to indicate the question decided, and generally whether the decision is in substantial accord with the decision in this volume or not. In the body of the book some changes have been made from the cus- tomary form. The abstracts of law points are fuller than heretofore, and in a form more like that of court reports. The use of different sorts of type, both in the syllabi and index, will, it is hoped, facilitate rapid reference.* In addition to the statements of law points, a somewhat completer statement of facts and findings than is customary has been made. An election case, unlike most of the cases included in volumes "The text of the reports being printed from stereotype plates already in existence, it was necessary to insert the new matter on separate pages, regardless of whether it would evenly fill them or not. This accounts for the gaps and blank pages be- tween the head notes and text. 4 PREFACE. of court reports, retains an individual and historical interest, and some statement should be made in the head notes which will make it possible to see at a glance precisely what the individual features of the case are. For this reason a brief statement is made of the claims of the parties, the findings of the committee in regard to them, and the points and grounds of dissent of the minority. This is followed by an outline of the history of the case in Congress, and the syllabus of law points. At the beginning of the minority report is generally a fuller statement of the grounds of dissent, with a syllabus of law points, if any are discussed. This statement is made on account of complaints made by members in debate in regard to the character of previous volumes, and to call atten- tion to features of this volume which it ought perhaps to be taken for granted that any such volume would contain, but which, for some reason, have been omitted from its predecessors. TABLE OF CASES. Page. (1) Smith vs. Jackson, Fourth West Virginia 9 Minority report 35 (2) Atkinson vs. Pendleton, First West Virginia 43 Minority report 61 (3) Featherston vs. Cate, First Arkansas 75 Minority report .. 129 (4) Mudd V8. Compton, Fifth Maryland 147 Minority report 161 (5) Threeti;*. Clarke, First Alabama 173 Minority report 185 (6) Posey vs. Parrett, First Indiana 187 (7) Bo wen vs. Buchanan, Ninth Virginia 193 Minority report 201 (8) Waddillvs. Wise, Third Virginia 203 Minority report 227 (9) McDuffie vs. Turpiu, Fourth Alabama 255 Minority report 301 (10) Chalmers vs. Morgan, Second Mississippi , 329 Views of Mr. Honk 349 (11) Langstou vs. Venable, Fourth Virginia , 435 Minority report 469 (12) Miller vs. Elliott, Seventh South Carolina 505 Minority report 533 (13) Goodrich vs. Bullock, Second Florida 581 Minority report 595 (14) McGinuis vs. Alderson, Third West Virginia 631 Minority report 649 (15) Clayton vs. Breckiuridge, Second Arkansas 679 Minority report 711 (16) Keruahan vs. Hooker, Seventh Mississippi . 783 (17) Hill vs. Catchings, Third Mississippi ., 801 Views of Mr. Lacey 809 All the contestees were Democrats; all the contestants, except Mr. Featherston, were Republicans. Cases 1, 2, 3, 4, 8, 9, 11, 12, 13, 14, and 15 were decided by the com- mittee in favor of contestants; cases 5, 6, 7, 10, 16, and 17 in favor of contestees. Cases 13, 14, 16, and 17 were not reached by the House. The case of Eaton vs. Phelan, Tenth Tennessee, was not decided by the committee. 5 COMMITTEE ON ELECTIONS. FIFTY-FIRST CONGRESS. L. C. HOUK, Tennessee. WM. C. COOPER, Ohio. NILS P. HAUGEN, Wisconsin. J. F. LACEY, Iowa. JOHN DALZELL, Pennsylvania. C. A. BERGEN, New Jersey. F. T. GREENHALGK, Massachusetts. JONATHAN H. ROWELL, Illinois, Chairman. S. G. COMSTOCK, Minnesota. CHARLES F. CRISP, Georgia. CHARLES T. O'FERRALL, Virginia. J. H. OUTHWAITE, Ohio. LEVI MAISH, Peunsylvauia. L. W. MOORE, Texas. R. P. C. WILSON, Missouri. CHESTER H. ROWELL, Cleric. AUTHORITIES CITED IN REPORTS. 9 Ala., 338 264 13 Ala., 885 264 Archer vs. Allen, Thirty-fourth Congress 16 Atkinson vs. Pendleton, Fifty- first Congress 223 Bell rs. Snyder, Forty-third Congress (Smith, 247) 223, 251 Biddle vs. Wing, Nineteenth Congress (C. &H.,504) 22-2,250 Bisbeeus. Finley, Forty-seventh Congress (2 Ells., 172) 103,223,250,451 Bradley vs. Siemens, Forty-sixth Congress (I Ells., 29ti) 223 Brazie vs. Commissioners of Fayette Co. (25 W. Va.,213) 18 Buchanan vs. Manning, Forty-seventh Congress (2 Ells., 287) 126,223,337 Butler vs. Lehman, Thirty-seventh Congress (1 Bart., 353) 164 Covodevs. Foster, Forty-first Congress (2 Bart., 600, 611) 223 Dean vs. Fields, Forty-fifth Congress (1 Ells., 190) 339 English vs. Peelle, Forty-eighth Congress (Mobley 167) 264 Farrington vs. Turner (53 Mich., 27) .' 24 Featherston vs. Cate, Fifty-first Congress . 223, 635 Frost vs. Metcalfe, Forty-fifth Congress (1 Ells., 289) 223 Fry, Election Cases (71 Peuna. St., 302) 190 Fuller vs. Davidson (Dawson ?), Thirty-ninth Congress (2 Bart., 126) 21 Goodiug vs. Wilson, Forty-second Congress (Smith, 80) 164 Harttws. Hervey (19 Howard's Practice, N.Y., 245) 222,249 Hey wood, fifth edition, 500 223 James vs. The State (45 Miss. R., 575)... 353 Lowry vs. White, Fiftieth Congress (Mobley, 623) 125,635 Lynch vs. Vandever, Fiftieth Congress (Mobley, 659) 168 Mann vs. Cassidy (1 Brewster, Penna., 60) 24 McCrary on Elections, sees. 400, 401, 404 586 104 591 306, 438 303 436-443, 533 164 416 169 Morton vs. Daily, Thirty-seventh Congress (1 Bart., 402) 16 Mudd vs. Compton, Fifty-first Congress 223,251 Newcum vs. Kirtley (13 B. Munroe, 515) 250 Niblackrs. Walls, Forty-second Congress (Smith, 101) 223,250 Page vs. Allen (58 Penn. St., 338) 512 Paine on Elections, sees. 776, 787 47 517 223 496 520 596 437 599 501 340 512 753 164 7 8 AUTHORITIES CITED IN REPORTS. Page. Paine on Elections, sec. 519 222 373 21 Pedigo vs. Grimes (112 Ind., 148) 191 People vs. Bates (11 Mich., 368) 520 People 1-8. Simonson(5N. Y.,22) 24 Porterfield vs. McCoy, Fourteenth Congress (C. & H., 267) 223 Sessinghaus t's. Frost, Forty-seventh Congress (2 Ells., 380) 223,251 Smalls vs. Elliott (minority), Fiftieth Congress (Mobley, 706) 106 Smith vs. Jackson, Fifty-first Congress 223 Staters. Judge (13 Ala., 805) 222,249 Steele vs. Calhoun (61 Miss., 556) 24 Taylor vs. Reading, Forty-first Congress (2 Bart., 661) .- 223 Taylor vs. Taylor (10 Minn., 107) 21 Thoebe vs. Carlisle, Fiftieth Congress (Mobley, 523) 126 Wallace vs. McKinley, Forty-eighth Congress (Mobley, 185) 20,119 Washburn vs. Voorhees, Thirty -ninth Congress (2 Bart., 54) 46,451 Webster vs. Byrnes (34 Cal., 273) 222,249 Whipley vs. McCune (10 Cal., 352) 21 Yeates vs. Martin, Forty-sixth Congress (1 Ells., 386) 223,251 CHABLES B. SMITH vs. JAMES M. JACKSON. FOURTH WEST VIRGINIA. The governor of West Virginia issued the certificate of election to Jackson. Smith claimed that the certificate of election should have been issued to him, he having a majority of the votes on the face of the returns, and also that he had received a majority of the legal votes actually cast. Both claims are sustained by the committee, the minority dissenting from the second proposition and in part from the first. (See minority report, page 35.) The resolutions presented by the committee were adopted by the House, February 3, 1890, by a vote of 166 to 0, and Mr. Smith was sworn in. The debate will be found on pages 948 to 1043 of the Eecord, but from page 948 to page 1000 it is mostly taken up with the parlia- mentary question of " counting a quorum." (1) Kecount. When to be demanded. Where the statute provides for a recount at the demand of either party, this demand need not be made on the day of the announcement of the result of the first count. (2) Mistake. Power of board to correct. There is inherent in every body charged with the ascertainment of the popular will, whether its functions be judicial or ministerial, the power to correct an error when discovered, and to make its conclusions conform to the facts. (3) Abbreviation. The word " twe. n Where the statute requires the return to set forth the number of votes received " in words at length," the word " twe " can not be con- strued to mean twelve or twenty without evidence. It should either be counted as two or the ambiguity explained by evidence. (4) County Court. Power in West Virginia to make a record. The county court in West Virginia has the power to make a record of its proceedings in regard to elections. " There is inherent in every such tribunal, and necessarily incident to its very purpose and existence, the power to make such record as will perpetuate and make available its legitimate action." And, aside from general principles, it appears from IP 10 SMITH VS. JACKSON. an examination of the legislation of West Virginia on the subject that the county court is more than a mere returning board. (5) Burden of Proof. When it is shown that the contestant was elected on the face of the returns the burden of proof shifts to the contestee. (6) Officers of Election. Not sworn. When all the officers are not shown to have been sworn, but no harm has resulted, it will not vitiate the election, they being de facto officers. And in West Virginia, where it is provided that the fact of taking the oath must either appear on the poll-books or be proved to the satisfaction of the commissioners of the county court before they can count the vote of a precinct, and the county commissioners did count the vote of a pre- cinct where the oath was not sufficiently certified on the poll-books, it will be presumed that they had satisfied themselves of the fact by other evidence before counting the vote. (7) Statutes. Directory and mandatory. Statutes directing the mode of proceeding of public officers are direc- tory merely, unless there is something in the statute itself which plainly shows a different intent. (8) Polling place. Change of. When the election is held at a different place from that required by law it does not vitiate the election if injury has not resulted and the place of voting was generally understood. (9) Vote. Presumption of legality. A vote accepted by the officers holding the election is prima facie legal, and can not be thrown out for illegality unless the presumption of legality is overthrown by a clear preponderance of competent evidence. (10) Evidence. What competent to show how a vote was cast. In the absence of direct proof as to how a voter voted, evidence show- ing to what political party he belonged, whose election he advocated, whose friends sustained his right to vote, and kindred testimony may be admitted. (11) Evidence. Of declarations of voter. What the voter said at the time of voting is admissible as part of the res gestce ; but what he said after the day of the election either as to his qualifications, or how he voted, or whether he voted, is inadmissible. (12) Person of unsound mind. A person having sufficient intelligence to make a valid will, or to bind himself by ordinary contracts, or to be criminally responsible for his acts, is a person of sound mind for the purposes of voting. (13) Pauper. Definition of. A pauper is one who is continuously supported in whole or in part out of funds provided by the public authorities for that purpose. (14) [Residence. What constitutes, SMITH VS. JACKSON. 11 It takes both act and intention to constitute a residence. An inten- tion to retain a residence which has been left must be an intention actually to return to it and reside in it. (15) Eesidence. Of corporation employes. Where the statute provides that no person shall be deemed a resi- dent in any county or district by reason of being employed therein by any corporation, such employment is not to be construed as preventing anyone from acquiring a residence at the place of his employment. JANUABY 23, 1890. Mr. DALZELL, from the Committee on Elections, submitted the following report: The Committee on Elections, having had under consideration the con- tested-election case of Charles B. Smith, contestant, against James M. Jackson, contestee, from the fourth district of West Virginia, s ibmit the following report : At an election held on the 6th day of November, 1888, James M. Jack- son and Charles B. Smith were the Democratic and Republican candi- dates, respectively, for election as Representative to the Fifty-first Con- gress from the Fourth Congressional district of West Virginia. The former obtained the governor's certificate and now holds the seat. His right to either is contested by Smith, who claims that he was entitled to the certificate in the first instance, and according to the votes legally cast is now entitled to the seat. The issue to be determined by the committee involves both these claims. Was the contestant elected upon the face of the returns ? It would seem that the contestee originally conceded that he was. Contemporaneously with the issue by the governor of a certificate of election to the contestee he made public a proclamation or declaration not called for by any provision of law, the purpose ot which evidently was to justify his action in issuing the certificate. (See Record, p. 866.) In this proclamation the governor says : J. M. Jackson, who was a candidate for Representative in Congress for the Fourth Congressional district, alleges that at two polling places at least, in Putnam County, the election was held at other and different places than those prescribed by law, and that motions were made before said commissioners to exclude these polls from the count, which the commissioners refused to do, and that the majority of 171 votes in said county in favor of C. B. Smith for said office is made up in part by the returns from said two polling places. It is insisted by said Jackson that under onr statutes it is in the power of the governor to go behind the returns and inquire into the pro- ceedings of the county commissioners. On the contrary it is insisted by said Smith, through his counsel, that "the intention of the legislature was to withdraw from the governor all power over the election returns whatsoever, except the certifying of what appeared in the office of the executive department of the State." The governor's decision was that he could not go behind the returns ; but it is very clear, from his statement, that prior to the issue of any certificate, the contestee was of opinion, upon the face of the returns, that the certificate must be issued to the contestant. The subsequent action of the contestee is consistent with and in affirmance of his original concession. 13 14 SMITH VS. JACKSON. The contestant in his notice of contest (Kecord, p. 22) offered to rest bis claim to office on the face of the returns. The issue thus tend- ered the contestee declined, adhering evidently to his original opinion that, tested by that standard, he had no title to the seat he now holds. It is very plain to the committee that the contestant was'elected upon the face of the returns and entitled to the certificate from the gov- ernor. Under the laws of West Virginia (Code, sec. 22, ch. 3) it is made the duty of the commissioners of the county courts in each Congressional district, to transmit to the governor a certificate of the result of the elec- tion within their respective counties, " and in the said certificate shall be set forth, according to the truth, the lull name of every person voted for, and in words at length the number of votes he received for any office." The Fourth Congressional district is constituted of twelve counties, and the aggregate vote appearing from the certificates therefrom trans- mitted to the governor in accordance with law was, as contestant claims Votes. For Jackson 19,8'25 For Smith 19,837 Showing a plurality for Smith of 12 votes. According to this state- ment Smith, and not Jackson, was entitled to the governor's certificate of election. But the count as made by the governor was Voteg. For Jackson 19,837 For Smith 19,834 Showing a plurality for Jackson of 3 votes. The differences between the county returns and the governor's couut are confined to three counties, viz: Ritchie, Calhouu, and Pleas- ants. The commissioners of Eitchie County sent two certificates. One, dated November 13, shows Votes. For Smith 1,972 For Jackson 1,405 The second, dated November 14, shows Votes. For Smith 1,973 For Jackson 1,403 The second certificate correctly represented the result of a recount of the votes, made at the instance of the contestee. The governor ac- cepted the first and rejected the second certificate, and thus took away from Smith one vote and added to Jackson two votes. The law of West Virginia with respect to a count and recount of re- turns is as follows (Code, sec. 21, ch. 3): The commissioners of the county court shall convene in special session at the court-house on the fifth day (Sundays excepted) after every election held in their county, or in any district thereof, and the officers in whose custody the ballots, poll- books, and certificates have been placed shall lay the same before them for examina- tion. They may, if deemed necessary, require the attendance of any of the commis- sioners or canvassers, or other officers or persons present at the election, to answer questions under oath respecting the same, and may make such other orders as shall seem proper to procure correct returns and ascertain the true result of the said elec- tion in their county. They may adjourn from time to time, and when a majority of the commissioners is not present their meeting shall stand adjourned till the next SMITH VS. JACKSON. 15 day, and so from day to day till a quorum be present. They shall, upon the demand of any candidate voted for at such election, open and examine any one or more of the sealed packages of ballots and recount the same, but in such case they shall seal up the same again, etc. It seems from the second certificate from Ritchie Couuty that the contestee was dissatisfied with the first couut there made, and de- manded, as he had a right to do, a recount. This certificate, so far as material, the law just quoted shows as follows: The commissioners of the county court of Ritchie County, West Virginia, having carefully and impartially examined the returns of the election held in said county in each district thereof on the 6th day of November, 1888, upon a recount of the bal- lots on the demand of J. M. Jackson, candidate voted for at said election for the office of Representative in the Congress of the United States, do hereby certify that in said county for tlie office of Representative in the Congress of the United States for the Fourth Congressional district of West Virginia Charles B. Smith, of Wood County, received nineteen hundred and seventy-three (1,973) votes. J. M. Jackson, of Wood County, received fourteen hundred and three (1,403) votes. O. W. Smith received one vote. Judge Jackson received one vote. In wiluess wheivof we, the said commissioners, have hereto signed our names this 14th day of November, A. D. Ib88, &c. This certificate the governor ignored altogether, and the contestee now seeks to justify his action by saying that upon the making of the original certificate the county court was functus officio. powerless even to correct an error; and that a recount cau be had only when the de- mand therefor is made prior to the issue of a certificate. This conten- tion is directly in the teeth of the coutestee's own action in demanding the recount, and is not in the judgment of your committee tenable on any ground. The manifest purpose of the law in providing for a recount is that er- rors may be corrected. There cau be no recount until there has been a perfec ed count. Whether a recount shall be necessary can not be determined till the first count is finished. No provision is made in the law as to the time when the recount must be demanded. There is no statute of limitations on the subject. To hold' that a recount must be demanded on the day of the original couut leads to the manifest ab- surdity, of requiring the candidate to be present, in person or by proxy, in as many different places as there are couuty courts in his district at one and the same time. In the district in question there are twelve counties. If the recount was lawful, as undoubtedly it was, so then was the certificate of its result, and the governor exceeded his powers in ac- cepting the first and ignoring the second certificate from Ritchie County. He committed a similar error with respect to Calhoun County. The commissioners of that county also returned two certificates. The first, dated November 12, 1888, showed for Jackson 919 votes, for Smith, 630. The second, made to correct a clerical error, showed the same number of votes for Jackson, but 632 votes for Smith instead of 630, and is as follows : (Record, p. 857.) At a regular session of the county court of Calhoun County, held at the Court House of said county on Monday, the 7th day of January, 1889, on motion of A. J. Barr, it is ordered by thid court that the returns of the election held in this county on the 6th day of November, 188-i, as certified by the county court, held on the l^th day of November, 1888, be corrected, it appearing to the court that there is a clerical error in the returns as certified, to wit : That the record of the re- Bult of said election for a Representative in the Congress of the United States shows that Charles B. Smith received six hundred and thirty votes, which should have bn C. B. Smith received six hundred and thirty-two votes. 16 SMITH VS. JACKSON. It is therefore ordered by this court that the record of this count be corrected, so as to show that C. B. Smith received six hundred and thirty- two votes, as shown on the face of the returns of said election, and that a copy of this order be certified to the governor of this State, and to C. B. Smith, at Parkersburg, W. Va. The Governor ignored this second certificate and thus deprived Smith of two votes. He assigned no reason for his action, but counsel for coutestee now seek to justify it on the grounds hereinbefore stated that upon the making of the first certificate the county court was functus officio, and had no power to correct an error, however plain and palpable, after the certificate had been issued. It has been held that where the judges of election discover a mistake upon a recount of the ballots, their supplemental return is entitled to be received ( Archer v. Allen, Thirty-fourth Congress); and that errors, whether fraudulent or accidental, may be corrected at any time, even after certificate of election issued by the governor. (Butler v. Lahinan, Thirty-seventh Congress; Morton v. Daily, Thirty-seventh Congress.) It is believed that there is inherent in everybody charged with the ascertainment of the popular will, whether its functions be judicial or ministerial, the power to correct an error when discovered and to make its conclusions express the true will of the people as disclosed by their suffrages. And it is especially to be noted that there is no suggestion from any quarter that the certificates from Kitchie and Calhoun Coun- ties, ignored by the governor, did not accurately show the exact num- ber of votes legally cast for the respective candidates, while on the con- trary it expressly appears that they did so show. But the technicalities which unfortunately prevailed in the mind of the governor to defeat in part the true will of the voters in Kitchie and Cal- houn Counties would not have affected the result had he stopped there, and they dwindle into insignificance when compared with the results of the strange mental process by which the returns from Pleasants County were perverted. According to the returns from that county, Smith had received 697 votes and Jackson 802 votes. These 802 votes the governor raised to 81-2 by a most extraordinary feat of political legerdemain. We quote from his unauthorized proclamation or declaration to which we have heretofore referred, as follows . The com mission ere of Pleasants County certify as to J. M. Jackson's vote as follows : " J. M. Jackson received eight hundred and twe votes." The words and letters are too plain for any mistake. For the reasons heretofore given there is no authority to go behind the returns. The vote certified must be counted if enough appears to as- certain the meaning. In an action upon a note it was held : "There was no error in admitting the note sued on in evidence, because the amount thereof is written four Jtitud and two and 50-100 dollars." (Glenn vs. Porter, 72 Ind., p. 525.) So it has been held that the abbreviation in a declaration, "Damages one thoua dollars" is not error. (1 W. L. J., Mich., 395.) If enough appear to make the return intelligible it should be made so. This can not be done without striking out one letter and inserting another, or by supplying the seemingly omitted letters. Acting upon the face of the paper the lat- ter appears more in consonance with adjudged cases. The least number would give to said Jackson eight hundred and twelve votes. It will be so entered. Thus the governor. It is difficult to treat this matter seriously. It seems like a farce to argue about it. It is hard to believe that any mature man, of ordinary intellect, and even to an extent honest, when dealing with the sacred right of suffrage could cheat himself into a justification of such conduct, much less expect to cheat anybody else. The very fact that the governor issued to the public his extraordinary proclamation explaining his reasons for granting to the contestee the certificate which plainly belonged to the contestant is a confession of SMITH VS. JACKSON. 17 guilt. The puerile reference to law cases, one bearing on the construc- tion of a promissory note, the other on a declaration, neither of them having the remotest possible analogy to the question in hand shows the straits to which the consciously guilty party was driven. The gov- ernor knew could not help knowing even if a poor penman omitted to close his o so that the word looked like t-w-e, instead of t-w-o, that the word intended was two. Upon general principles he was bound to presume that the three letters expressed the whole word, but he was especially bound to so assume in this case, because the law, of which he pretended to be so tender, required that " the certificate shall set forth, according to the truth, the full name of every person voted for, and in words at length the number of votes he received for any office." The law, therefore, told him that the word about which he pretended to doubt was not an abbreviation but a number written in words at length. He gratuitously assumed the violation of this law by the county court making the certificate, as well as did violence to the commonest kind of common sense when he tortured these three letters into the word " twelve." He knew furthermore that "twe"is not now, never was, and probably never will be amongst sane men an abbreviation of twelve, or of twenty, or of any number known to an American. And he knew again that the letters were intended to express a number, and that there is no num- ber known to the English language written with three letters, the first of which is "t" and the second " w" except the single number two. But even if it were conceded that there could possibly have been a doubt as to what the word meant, then it was a patent ambiguity, which any law student could have told the governor it was his duty to ex- plain by evidence. This he was bound to do, and could very readily have done, as will clearly appear hereafter. Had it been impossible for him to do so, the only legal alternative remaining was to strike out the word altogether as insensible, and read the return 800. Neither process would have given the certificate to the contestee. The governor therefore guessed enough to give to that gentleman three of a majority. The true vote in Pleasants County for Jackson was 802, and not 812. Nobody now claims, nor did anybody ever claim, that it was in fact anything else. Counsel for contestee, however, without attempting to defend a trick indefensible, ingeniously argued before the committee that the governor had no legal standard by which to explain the so-called doubtful word, and that no competent legal evidence has been produced by the con- testant, to show that the true vote in Pleasants County was other than as counted by the governor. The argument is, that under the laws of West Virginia the commis- sioners of the county court do not constitute in any proper sense a court of record, but are merely a returning board, having no judicial func- tions, except when making a recount, and no authority to evidence their action except by the issue of a single certificate, which is to be sent to and deposited with the governor. Upon the faith of this proposition it is contended, that the only legal record evidence of the vote in Pleasants County, as ascertained by the county court, is the certificate sent to the governor, and that the cer- tificates procured by the contestant from the clerks of the county courts and offered in evidence, showing the results of the elections in the several counties, are not competent evidence. H. Mis. 137 2 18 SMITH VS. JACKSON. These certificates, it is contended, were made without authority of law, and at the instance of a court having no right to make H record. In support of this proposition counsel cited Brazie v. the Commis- sioners ot Fayette County, decided by the supreme court of West Vir- ginia, and reported in 25 W. Va., p. 213. In the judgment of the com- mittee, that case does not sustain the contention. The question material here does not seem to have been necessarily involved in the case at all. The case arose upon an application for a writ of prohi- bition, to restrain the commissioners of a county court from going into a jndidal examination in an election case outside of the returns made to them, to ascertain whether the precinct commissioners had certified and returned certain votes not entitled to have been cast. The court held, that the judicial functions of the county court in an uncontesfed election case did not extend beyond the ascertainment of the result from the papers laid before them, and whether such papers are in fact such genuine, intelligible, and substantially authenticated returns as are required by law. True, in the course of the opinion the judge delivering it said, that if the power of the commissioners were enlarged so as to include powers beyond those mentioned they would be made a tribunal by implication only, and "a tribunal which keeps no record of its proceedings, and from whose judgment there lies no writ of error or appeal," but the case is as well decided without this sentence as vith it; it has no reference to any question necessarily involved in the issue, and is the merest dictum. Moreover the record here referred to is not the record of what, under the court's decision, the commissioners of the county court had authority to do, but a record of what they had no power to do. It is not the existing tribunal of which the court is speaking, but of a tri- bunal to exist only by implication. Even if it be conceded that the functions of the county court are min- isterial, and that in their exercise it makes no such record as imparts absolute verity, and to which a bill of exceptions will lie, still it by no means follows that it makes no record at all. There is inherent in every sueh tribunal and necessarily incident to its very purpose and existence, the power to make such record as will perpetuate and make available its legitimate action. This is a principle of universal appli- cation. But aside altogether from general principles it will sufficiently appear from an examination of the legislation of West Virginia on the subject of elections, taking that legislation as a whole, that the county court is more than a mere returning board. To that court is intrusted the duty of fixing voting places. (Code, sec. .5, ch. 3.) To it are intrusted also the power and duty of naming election com- missioners. (Ibid., sec. 6.) To it are returned certificates from the district canvassers, the bal- lots cast, and one set of the poll-books. Its clerk is made by law the custodian of these records. (Ibid., sec. 20.) When about to exercise the functions of the county court with respect to election returns the commissioners convene in special session. The court -o convened has power to summon witnesses, to administer oaths, "to make such orders as shall seem proper to procure correct returns, and ascertain the true result" of the election. It has power to make a recount, and is charged with the duty of so doing upon .demand properly made. A court which is a mere returning board, of course, would uot need to meet in special session. Such board necessarily SMITH VS. JACKSON. 19 would have only one kind of session, not two kinds, an ordinary and a special session. Provision is expressly made by section 4G, Acts 1881, chapter 5, for a complete record of all the proceedings of the county court, both those which relate to its general jurisdiction, exercised at its ordinary sessions, and those which relate to its exceptional jurisdiction exercised at its special sessions. The provision is : The county court of every connty shall provide two record books for the use of the court, in one of which shall be entered all the proceedings of the said court in rela- tion to contested elections ; all matters of probate ; the appointment of appraisers of the estates of decedents, and the appointment and qualification of personal repre- sentatives, guardians, committees, and curators, and the settlement of their accounts; all matters relating to apprentices, and in the other of said books shall be entered all the other proceedings of the said court. But in addition to the record thus provided for, there are other pro- visions of the law with which the position assumed by contestee's coun- sel and now under discussion are inconsistent. By section 22 it is prescribed that when an election is held in a county or district for. any or all of some twenty-two different officers State, county, and Federal " the commissioners of the county court, or a ma- jority of them, * * * shall carefully and impartially ascertain the result of the election in their county, and in each district thereof, and make out and sign as many certificates thereof as may be necessary. * * * The said commissioners shall sign separate certificates of the result of the election within their county for each of the offices specified in this section which is to be filled ; " that is, separate certificates for each of the twenty different offices, State, county, and Federal. Section 23, still preserving the plural number and speaking of cer- tificates, makes provision for the disposition of these certificates. As to certain offices, one of the certificates is lo go to the governor ; as to certain other offices, one is to go to the secretary of state ; as to certain offices, one is to go to some designated public officer ; the other to the candidate elected. In all cases, with respect to every office, it is the duty of the court to sign separate certificates. As, of the separate certificates directed to be made in the case of a candidate for Congress, one only is to go to the governor, and, as no provision is made for the giving of the other to the candidate or to any public officer, it necessarily remains with the clerk of the court. By section 5 of chapter 130 (code of West Virginia) A copy of any record or paper in the clerk's office of any court, or in the office of the secretary of state, treasurer, or auditor, or in the office of surveyor of lands of any county attested by the officer in whose office the same is, may be admitted as evi- dence in lieu of the original. ******* Your committee are therefore clearly of the opinion that, under the laws of West Virginia, it was competent for the governor and it was his duty, to make intelligible if unintelligible the certificate as to the vote in Pleasant County, by consulting the certificate and record of that vote on file in the clerk's office of that county, and that in default of his having done so it is competent for them and is their duty now to do it. It is conceded that ever since the passage of the West Virginia act of 1882, which we have been discussing, it has been the custom of the county court to keep on file a duplicate certificate, showing its conclu- sions with respect to the election of a Representative to Congress. Such being the case, even if your committee were- not impressed with 20 SMITH VS. JACKSON. the belief that the argument now made by the contestee involves no more than a mere technicality without merit, they would still consider that the adoption by them now of a new construction of the law, con- trary to that so long generally adhered to as the true one, would be on their part a crime not very much less than that practiced by the gov- ernor when he gave to the coutestee the certificate that belonged to the contestant. In other words, your committee believe, that if the ease was one of doubt, as it is not, the practice for so many years of the parties who made the law of 1882, and of the parties for whom it was made in con- struction thereof, is conclusive upon them in this proceeding. And they are of opinion that, on the face of the returns, the contest- ant was elected by a majority of 12, and was entitled to the governor's certificate of election. Such being the case, the contestant is now to be treated as if he had received the certificate, and the onus is cast on the contestee to show that the returns, if truly made, would elect him. (Wallace vs. Mc- Kinley, Forty-eighth Congress.) This he attempts to do in his brief submitted to the committee, by a series of propositions quite as technical and void of merit as is the con- tention by which he seeks to retain the benefit of the certificate wrong- fully issued to him. In eight districts, in which he had an aggregate vote of 588 and the contestant an aggregate vote of 1,083, he asks that the totnl vote be excluded from the count for various reasons, in one district for one rea- son and in another district for another. His proposition will be found to resolve itself into a demand that the voters of these eight districts shall be disfranchised for reasons with which the voters themselves had nothing at all to do, for no fault of theirs. Xo one will deny that to sustain this contention strong and couvinciug reasons must be assigned. And it is only fair to say, that the leading counsel for contestee in his argument before the committee, admitted the purely technical charac- ter of the objections to the vote in these eight precincts and declined to press them. As to one precinct only the argument was pressed by the assistant counsel of the contestee. An examination of the reasons urged for the disfranchisemeut of the voters of the several precincts named, taking them in their order, will justify counsel in his concession as to their purely technical character. The first precinct complained of is Ebenezer precinct in Calhoun County. Here the contestant received 39 votes and the coutestee 19. All are asked to be excluded because it is alleged that it does not appear that the commissioners who conducted the election were sworn. The record shows that on the poll-book returned to the county clerk's office the oath appeared at length and in the form prescribed by law, subscribed by each and all the commissioners, but the jurat is irregular and indefinite. It reads as follows : Subscribed and sworn to before me as one of the commissioners, L. F. Law, this day of November, 1888. PETER CONLEY. Both Law and Conley were commissioners, and either had the power to swear all the rest. It is very clear, even from the imperfect record, that all took the oath by subscribing to it, and that as to two at least the certificate is conclusive. Where part of the officers are sworn, SMITH VS. JACKSON. 21 others not, the election is valid. (Fuller v. Davisou,2 Bart., 126.) Two things are to be noted in this connection : first, that sworn or unsworn, all the commissioners were de facto election officers, and, second, that no harm resulted to any one, either the public or an individual voter, from their failure to be regularly sworn. All authorities agree that the acts of de facto officers are to be accepted and treated as valid so far as the public and the candidates are concerned. (Paiue on Elec- tions, sec. 373. and cases cited.) It is a well-settled principle of law, and a very ancient one, u that the act of an officer de facto, where it is for his own benefit, is void * * * but where it is for the benefit of strangers, or the public, who are presumed to be ignorant of such de- fect of title, it is good." (Cro Eliz, 699.) It has been repeatedly held that a certificate of unsworn officers even, is prima facie, and the burden is on the contestant to show that the errors committed .affected the result or rendered it uncertain. (Taylor vs. Taylor, 10 Min., 107 ; Whipley vs. McCune, 10 Cal., 352.) It is contended, however, that this principle does not apply in this case because the law of West Virginia provides : The said oatn shall appear properly certified on one of the poll-books of every election, and in no case shall tbe vote taken at any place of voting be counted unless said oath so appears, or unless it be proved to the satisfaction of the commissioners of the county court, convened at the court-house, as hereinafter required, that the oath was taken before said commissioners, canvassers, and clerks entered upon the discharge of their duties. But the contention must fail and the argument be against the con- testee for the manifest reason, that unless the oath had been taken the votes at this precinct could not have been counted. The taking of the oath was to be made to appear either upon the poll-books or by proof to the satisfaction of the county commissioners. These commissioners had power, "if deemed necessary, to require the attendance of any of the commissioners or canvassers, or other officers or persons present at the election, to answer questions under oath respecting the same, and to make such other orders as shall seem proper to procure correct re- turns and ascertain the true result of the said election in their county." The commissioners of the county court must be presumed to have done all things within their power necessary to be done in the perform- ance of their duty in accordance with law. They can not be presumed to have done anything unlawful. The votes could not have been law- fully counted unless the election officers appear to have been sworn, either by the evidence of the poll-book or by other evidence satisfactory to the commissioners. The votes were counted, and if it be true that the swearing of the officers is not proven by the poll-book, it must have been otherwise proven to the satisfaction of the commissioners. No reason, therefore, has been shown why your committee should disfranchise the voters of this district. The next district sought to be disfranchised in the interest of the cou- testee is Kentuck precinct, Jackson County, where there were 152 votes for contestant and 72 for contestee. The complaint here is that no vote was returned on the poll-books by the precinct commissioners nor any certificate in the case of the candi- dates for Congress. The law of West Virginia (section 18, chapter 3, Code) requires that upon the close of the polls there shall be read from the ballots, one at a time by one of the commissioners, the designations of the offices to be filled and the names of the persons voted for for each office. 22 SMITH VS. JACKSON. The ballot shall then be handed to another of the commissioners, who if satisfied that it was correctly read, shall string' it on a thread. The contents of the ballots as they are read shall be entered by the clerks under the supervision of the commissioners on tally papers for the purpose by suitable marks made opposite to or under the name of each person for any office to be filled. [Sec. 20] "As soon as the results are ascertained the commissioners or a majority of them * * * at each place of voting shall make out and sign two certificates thereof [according to a prescribed form] and transmit one to the clerk of the county court. They shall also seal up the ballots, and send them with one set of the poll-books to the said clerk." A reference to the certificate (Record, pp. 341-2-3 ; 351-2) will show- that the certificates were made and signed by the commissioners hold- ing the election, and returned to the clerks of the county and circuit court, as required by law, but that the names of contestant and con- testee did not appear in said certificate, nor the office for which they were candidates and received votes. But their names were on the ballots cast at said precinct for said office, and the ballots were counted by the commissioners of election, and their names were written down by them on the tally-sheets opposite or under the designation of the office for which they received votes, and the number of votes which each received was designated on said tally-sheets, to wit, 152 for con- testant and 72 for coutestee, in the same manner as was done with re- spect to the names of all other candidates voted for at said election, and the tally-sheets were returned with the certificates and the ballots to the clerk of the county court. The aggregate votes appearing thereby to have been cast for contestant and contestee were one less than the highest number appearing to have been cast for any other two oppos- ing candidates. When these papers reached the commissioners of the county court, counsel for coutestee demanded a recount of the votes for Jackson County, as to Representative in Congress, as he had the law- ful right to do. Under this demand the commissioners of the county court recounted all the ballots cast for Representative in Congress in that county, and upon that recount the number of votes appearing to have been cast for the contestant and contestee were the same as ap- peared upon said tally-sheets, and including these votes, the result in the county was, for contestant, 2,272 votes, and 'for contestee, 1,886 votes. And this result was certified to the governor. The only irregularity here seems to have been a clerical error, in the failure of the election commissioners to insert in the certificate the re- sult of the election at that precinct as to Representative in Congress. They did ascertain the result and wrote it correctly on the tally-sheets, and when the county commissioners counted the ballots at the demand of contestee's counsel, they obtained the same result, and the ballots were there and inspected by the commissioners, and presumably by the con- testee's attorney who made the demand for recount. But this failure of the commissioners of election to make return of the votes at this precinct could not have the effect to disfranchise the persons who voted there, and the law of West Virginia especially pro- vides for such a case. In declaring the powers and duties of the county commissioners in ascertaining and declaring the result of the election in their respective counties, the following language is used : They may, if deemed necessary, require the attendance of any of the commissioners or canvassers or other officers or persons present at the election, to answer questions under oath respecting the same, and may make such other orders as shall seem proper to procure correct returns and ascertain the true result of the said election in their county. SMITH VS. JACKSON. 23 The presumption as Well as the proof is, that the county commis- sioners ascertained, by the exercise of their powers of examination, the true result of the election, t.iid certified accordingly. There is no pre- tense that they did not. Counsel for contestee say that he, the contestee, made no demand for a recount of the vote at this precinct, and argue that the fact of such de- mand should appear of record. There is no law requiring the demand to be made matter of record. There is no record of demand made in any precinct, though contestee admits having made such demand in some. There is affirmative proof (Record, p. 724) that demand was made for a recount in this precinct by contestee's attorney, and neither the attorney nor the contestant was called to rebut this evidence. The matter does not seem material, nor to merit discussion, since there is no pretense that the commissioners in the exercise of their legitimate functions did not ascertain the true vote in this precinct; no pretense that it was not truly declared ; no pretense that any voter suffered anything by the alleged irregularity; in fact, nothing to take this case out of the or.diijary rule of law, that statutes directing the mode of proceeding of public officers are directory merely, unless there is something in the statute itself which plainly shows a different intent. Contestee further claims that the returns from Pine Log precinct, Jackson County, should be excluded. His charge is that ''there was such misconduct and fraudulent acts upon the part of those who con- ducted the election as to render such poll and the votes cast respect- ively for contestant and for contestee null and void ; that is, 139 votes for contestant and 92 votes lor contestee." From the evidence the facts appear to be as follows : Thomas Rorden, John McKown, and W. T. Dernberger were the commissioners conduct- ing the election at this precinct. C. C. Nesselrood, a witness for con- testee (p. 317-1*) testifies, that the votes were counted during the night following the day ot the election, and that he remained there while the vote was being counted and until it was completed ; that after midnight witness went to sleep and awoke after sleeping about two hours; that when he awoke Dernberger, one of the commissioners, was asleep on a bench, and MeKown, another of them, was smoking in the back part of the house; and the other commissioner, Rorden, was being assisted in the counting by W. E. Dernberger, son of the commissioner, and W. H. Rordeu and Asberry Davis were stringing the votes; that Deru- berger, the commissioner, and his son were both Democrats, the former being a member of the Democratic county committee; that Davis is a Democrat, and took the place of McKown in the counting. By infer- ence, therefore, McKown is a Democrat, and Rorden was the Republi- can commissioner. This is the only witness who testifies as to the con- duct of the election at that precinct. The evidence does not show that the ballot-box was in the custody of any one of the commissioners so as to require it to be sealed. Even if it was out of the custody of Deruberger, from the fact that he was asleep, it was not out of that of McKown who was present in the room, and the counting proceeded under his observation, and his place was tilled in the operation of counting by a Democrat. There is not the slightest evidence tending to show that there was any tampering with the ballot or returns, or any fraud of any character. All that was done was in the presence of at least two of the commissioners who were awake. It appears from the evidence of Lemley (pp. 724-'5) that the return froni this precinct did not show any votes for contestee, but 13U votes 24 SMITH VS. JACKSON. for contestant, a mere clerical error in failing to write into the return contestee's vote, but, under the recount which was demanded by con- testee, the votes for him at this precinct were counted by the commis- sioners of the county court, and the number of them, 93, included in their return to the governor. It is to be observed that no allegation of any specific act of fraud is alleged. Tour committee are asked to presume that fraud was com- mitted because it might have been committed, and this in the absence of any pretense that a single legal vote was excluded from, or a single illegal vote was included in, the result announced. Your committee do not know of any principle of law that would justify them in so finding. They understand the law to be as declared in Mann v. Cassidy (1 Brewster (Penna.), 60). An allegation of fraud committed by election officers is immaterial unless it be also stated that the result has been affected. The votes in Pine Log precinct should be counted as returned. The next precinct complained of is Boyer precinct, Putnam County. Contestee charges that the voting place in 4his precinct, established by order of the county court, was McGill's post-office, but that the election was held at Isaac's Branch school-house, from one-half to three- quarters of a mile distant from the post-office. (Record, p. 33.) The evidence tends to prove the above statement, but it is not claimed, nor does the evidence tend to show that any person was deceived or pre- vented from voting thereby. Two witnesses only are examined by con- testee in relation to this precinct, and one of them (Fowler, pp. 408-9) says that it was his understanding from the time he knew of the elec- tion, that it was to be held at the Isaac's Branch school-house, and that every voter in the precinct voted at said voting place, at said election, except one, and he was too sick to go to the polls. The other witness (Dunlap, p. 410), corroborates Fowler generally, and" in addition, says that the school election in 1887 was held at the same place. So that contestee, by his own witnesses, proves that no voter was wronged out of his vote, and that he was not injured by this change of voting places. This case calls for the application of the rule which protects the voter against disfranchisement from the default of a public officer when such default has resulted in no injury to any one. (Farrington v. Tur- ner, 53 Mich., 27; People v. Simonson, 5 1ST. T., 22; Steele v. Calhoun, 61 Miss., 556.) The next precinct asked to be excluded presents facts very similar to the last, and is governed by the same principles. Thomas School-House precinct, Putnam County: Contestee con tends that the legal voting place for this precinct was the residence of Josiah C. Thomas, and that the election was held at the Thomas School-House, about three-quarters of a mile distant from said residence. Josiah C. Thomas is the only witness examined in relation to this ob< jection and he was introduced by contestee ( Record, pp. 410-11). He says that the voting place was established at his house in 1849 or 1850 by an act of the legislature of Virginia. This is not the way to prove an act of the legislature. It probably amounts however to proof that this was the voting place of the precinct by common consent, for he says they con- tinued to vote there down to and including the Presidential election of 1880, that soon thereafter he spoke to some parties to have it changed, that word afterwards came that it had been changed to the school- house, that this was generally understood, and that every election since 1880, including the one in question, has been held at the school-house, SMITH VS. JACKSON. 25 and that that has been the voting place of the precinct since that time according to common understanding. Under this evidence, one of these places seems to have been estab- lished by custom, or common consent. At the time of the election the school-house was the legal voting place, and the subsequent order of the county court fixing it as the legal voting place was unnecessary, as it had already before that time recognized it as such by counting and considering the votes at former elections there cast. There is no pos- sible pretext for assailing this precinct. The contestant, in his notice of contest, specified three precincts where the election was not held at places designated by law, viz., Saudy- ville, Jackson County; Reedy and Curtis, in lloaue County, at each of which the contestee received majorities greater in the aggregate than the majority received by contestant at the precincts challenged, for like reasons, by the contestee in his reply. The facts are about the same in the cases on both sides. No voter appears to have been deprived of an opportunity of voting by reason of the fact that the election was not held at the place designated by law. The contestant did not press these objections made in his notice of contest. If he had they must have been overruled upon the principle already announced. In Walton precinct, Roane County, the contestee claims that the ballot-box was in the custody of one of the commissioners of election alone, in violation of law, and that the vote at this precinct, where con- testant had 131 plurality, should be rejected for this reason. The section of the law relating to this subject is as follows (Code, ch. 3, sec. 14) : The ballot-box shall have an aperture in the lid or top thereof to receive the bal- lots of voters. While the polls ai'O open it shall be kept where it may be seen by the voters, and after the polls are closed, and until the votes are counted and the certifi- cates of the result .are signed, shall remain in the immediate custody of the com- missioner, or any one of them, with the consent of the others. But it shall not be opened unless two of them at least be present, and if left at any time in the custody of one of the number, shall be carefully sealed so that it can not be opened or any ballot taken therefrom or entered therein without breaking tbe seal, and the others shall write their names across the place or places where it is sealed. The facts are as follows : The ballot-box was a firm wooden box with a sliding lid with a hole through the top to receive the ballots. There was a lock on the box but no key to it ; the lid would slide easily ; tbe lid was fastened with a nail which could be drawn out with the fingers. The commissioners of election were N. K. Walker, H. O. Rock, and J. C. Garvin ; the first two Democrats and the last a Republican ; on the day of the election the commissioners went to dinner at a hotel near by, and Garvin had the box ; there was a seal over the aperture in the lid (p, 469) ; Garviu finished dinner first and took the box under his arm and went to a store about thirty or forty steps from the hotel, and in not more than five minutes Walker followed him there; contestee's witness says if box was sealed ballots could not have been put in or abstracted without the same being detected, but could if it was not sealed. They com- menced counting ballots in the evening of the 6th and continued until 3 a. m., of the 7th, then took a recess until after breakfast and finished counting at 10 p. m. of the 7th. The counting was done at Mr. Uiley's hotel upstairs; during the count on the 7th they halted for a rest and Walker and Rock went out and left Garvin and the two clerks with the ballot-box, which was then sealed. Walker returned in a few min- utes and found only Garvin and Chris. Summers, both Republicans, in 20 SMITH VS. JACKSON. the room, standing, one on either fide of the table on wlrch the ballot- oox was. Walker testifies for contestee that he saw nothing in the conduct of Garvin or Summers which led him to suppose that there had been any tampering with the ballot-box, and that there was noth- ing to indicate that there had been ; that he knew Garvin well, and did not believe he did or would tamper with the ballot-box, or permit it to be done ; that the result of the election was about as usual at that pre- cinct, and nothing in it to indicate that there was any tampering, and that the number of ballots tallied with '.he number of names ou the poll -books. There is a total absence of evidence tending to show any fraud or improper practices on the part of any one in conducting the election. The evidence fails to show that the box was " left at any time in the custody of one of the number" in contemplation of the law. While they were at dinner it was as much in the custody of the one who did not have manual possession as it was in his who did. Besides, at that time it was sealed. On the other occasion it was not left in Garvin's custody in contemplation of law or in tact. The others stepped out only momentarily. The sealing was to be done only when the two turned it over to the third, thereby expressly charging him with the custody. Besides, if there was any violation of law it was only technical, and did not tend to the injury or prejudice of the contestee, and can not deprive the voters of the right of having their votes counted as cast. The same rule of law applied with respect to Walton precinct applies here. There was no evidence of bad faith or injurious results, nor was the result of the election rendered unreliable by reason of anything charged against the election officers. The innocent voters of this precinct can not be disfranchished upon a mere presumption of fraud, even if the circumstances would justify it, as they do not. The objection made to the vote of the Murphy's Mill precinct is of such a frivolous character as to merit but little discussion. It is, that the oath of the precinct commissioner does not appear properly certi- fied on the poll-book. It was not properly certified because Marion J. Bickle, a justice of the peace who administered it, signed the jurat " Marion J. Bickle, in ar.d for Clay district, Wood county, W. Va.," omitting the words ''justice of the peace" alter his name. He was in point of fact, a justice of the peace as the evidence shows. The less comment made on this objection the better, one would think, for the contestee. The next objection is like unto the last, and relates to Wadesville precinct, Wood Counr> . The objection here again relates to an alleged irregularity in the jurat. The oath was adminstered by T. J. Sands, one of the commissioners of election, but he omitted to sign with his official title. That the oath was administered by him, that he was a commissioner and by law authorized to administer it, aie facts not capable of being called in question. Tbe matter does not seem to merit discussion. Bearing in mind that the, contestant was in the first instance entitled to the governor's certificate and had a majority of twelve, it appears from our examination of the case thus far, that he still retains that ma- jority, and we address ourselves to the question as to whether it has been overcome by proof as to the illegal votes claimed to have been cast on both sides. SMITH VS. JACKSON. 27 To qualify one to vote in West Virginia he must be a male citizen of the United States, twenty-one years of age, must have resided in the State for one year next preceding the election, in the county sixty days, and must be a bona tide resident of the election district in which he claims the right to vote. Paupers, convicts, and persons of unsound mind are not voters. By the record and briefs filed in this contest, a large number of votes are attacked by both parties. In considering these votes so at- tacked the committee deem it proper to state generally the rules by which they have been governed in determining the question of legality or illegality, and for whom the votes were cast. First. A vote accepted by the commissioners holding the election is prima facie legal. Before it can be thrown out for illegality it must be satisfactorily shown by the evidence to have been cast Dy one not le- gally qualified to vote that is to say, the presumption of legality must be overcome by a clear preponderance of competent evidence. By competent evidence we mean such evidence as would be admitted on the trial of the issue before a judicial tribunal, except where a re- laxation of the rule is made necessary by the nature of the issue. No provision is made by the statutes of West Virginia to ascertain what particular ballot any voter has deposited after it has been once placed in the ballot-box. Therefore in this case it becomes necessary to ascertain for which candidate a vote was given by other means than the ticket itself. It seems to have been taken for granted by both parties that the voters themselves could not be compelled to disclose how they voted. It may be remarked in this connection that one who would knowingly cast an illegal vote ought not to be regarded as the most reliable wit- ness. On the other hand, when he has been honestly mistaken, we can see no reason why such voter ought not to be trusted as a witness. In order, then, to prevent illegal voting with impunity, it becomes necessary to determine what kind of testimony shall be received in as- certaining which candidate got the benefit of the illegal vote. The committee have followed the rule which appears to them to be the most reasonable, as well as the best sustained by authority. In the absence of direct proof, evidence showing to what political party the voter belonged, whose election he advocated, whose friends maintained his right to vote, and kindred testimony, has been held ad- missible. Of course what the voter said at the time of voting is ad- missible as a part of the res gesta. But what a voter said after the day of the election, either as to his qualifications, or how he voted, or whether he voted, the committee hold to be inadmissible in the absence of other testimony on the point. If such testimony can be admitted at all, which we do not concede, it certainly ought not to be received when the statement of the voter is made after the legality of his vote has been called in question. To admit this kind of testimony is to place it in the power of one not en- titled to vote to have his illegal vote counted twice against the party he desires to defeat, without subjecting himself to cross-examination, and without even the formality of testifying under oath. Again, one legally qualified may, by statements after he has voted, make himself out to be disqualified without incurring any penalty, and i'u that way have his legal vote given to one party counted as illegal against another party. One who has not voted at all may in the same way be proved to have voted. In a close contest, with party feeling running high perhaps party control involved the admission of this 28 SMITH VS. JACKSON. kind of testimony would be doubly dangerous. It has nothing to com- mend it except a class of decisions whose authority has been weakened, if not destroyed, by later and better considered adjudications. The committee reject all such testimony as being mere hearsay of the most dangerous kind when standing alone. When the only evidence of how a man voted, or whether he was a legal voter, is the unsworn statement of the voter after the election, we have let the vote stand. In regard to what constitutes a person of unsound mind we have adopted the rules substantially as laid down by American courts and text-book writers and hold that a person having sufficient intelligence to make a valid will, or to bind himself by ordinary contracts, or to be criminally responsible for his acts, is a person of sound mind. One whose will would be held invalid, for no other reason than mental in- capacity, is a person of unsound mind. In the record we find the oft-recurring question, " Was the voter in your opinion a man of unsound mind," put to a non-professional wit- ness without any attempt to define what was meant by unsoundness of mind. To the answer to such question, unaccompanied by any explana- tion of what the witness understood by the term, we attach very little weight. The condition of the voter, his acts and speech, how he is regarded by those who know him, as to his competency to contract, judicial de- terminations, and the like evidence has been given due weight. The term idiot is so well understood that the statement of a witness that a person is an idiot is given more weight, as being the statement of a fact within the knowledge of the witness, and not a mere opinion. With these rules in view the determination of the legality of a vote only requires a fair and intelligent consideration of the evidence. Upon the question of what constitutes a pauper, there is some disagreement in the authorities, but we think the following may be taken as a fair defi- nition : A pauper is one who is continuously supported in whole or in part out of funds provided by the public authorities for that purpose. One who has been a public charge, and afterwards becomes self-sup- porting for a sufficient time before the election to show that his ability to support himself is. not a mere temporary condition, may legally vote. One who, under temporary misfortune or sickness, receives public aid, but is ordinarily self-supporting, is not a pauper. The law which 'determines the question of residence is so well settled that it does not need a restatement by the committee ; the difficulty is in the application of the law to the evidence. Absence from the place claimed as a residence, for temporary pur- poses, does not work abandonment, but in this case some of the wit- nesses and some of the commissioners of election seem to have had the view that a voting residence might be retained by the simple statement of intention to retain a certain place as a voting residence, although an actual residence had been taken up elsewhere, with no fixed intention of ever again actually living at the place where the right to vote is claimed. Others seem to think that they can establish a new residence by intention before actually and in fact moving to the new place. We do not concur in these views. It takes both act and intention to establish a residence, and an intention to retain a residence which has been left must be an intention actually to return to it and reside in it. Some votes in this record are questioned on account of disputed or doubtful boundary lines. The committee have not thought it their duty to go into an investigation of disputed boundaries, but have counted all votes as legal when the voters were otherwise qualified and SMITH VS. JACKSON. 29 voted in good faith in the district where they believed that they had their residence, and where they hail been in the habit of voting. Applying the foregoing rules we now propose to consider the separate votes without attempting to discuss each vote at any length. Cotestee in his brief substantially concedes that the following votes cast for him were illegal and ought to be deducted from his vote, Ephriara Hensley, non-resident. W. J. Giluiore, non-resident. C. D. Stahiaker, minor. Charles Reynolds, uon-resident. John C. Deaton, pauper. James Powell, unsound mind. Henry Keyuolds, nou-resident. Grant Griffith, minor. Napoleon Adkins, Wayne County. W S. Napier, Wayue County. W. W. Bromfield, Wayne County. Aldersou Watts, jr., Wayne County. William Noe, Wayne County. C. O. Bellomy, Wayne County. Elias Browning, Wayne County. W. Y. Woodring, non-resident. Noble Hunter, convict. John Cochran, pauper. Frederick Schwall, pauper. Michael Hobart, non-resident. making twenty conceded illegal votes, one of which, Frederick Schwall, we deduct, as the concession grows out of testimony which the com- mittee do not consider competent. Two or three of these votes contestee insists should not be charged against him, because not named in contestant's notice of contest. One of them, Michael Hobart, was challenged by coutestee in his re- ply. The vote was illegal and cast for contestee. The committee think that a vote challenged in the notice by either party is a proper subject of investigation. Two others were not named in either notice. The pleadings in this case are more specific than the practice before the committee requires. As a general rule parties ought to be bound by their pleadings, but where neither party has been taken by surprise, and both have entered into the investigation, the rule should be relaxed in the interest ofjustice. The evidence in regard to these voters was taken a mouth before con- testee commenced examining his witnesses, the witnesses impeaching the votes were cross-examined on this branch of their testimony, and the contestee should be held to have waived his objections. In a final summary of his claims contestant has conceded that he has failed to establish his charges with reference to a number of named voters, and that the evidence in regard to others places them in the doubtful list. As to all such we have not felt it our duty to examine the evidence, as we take the admission to amount to a waiver. Al- though as to some of them it may be said it takes all the benefit of presumptions to hold them valid. Of these claimed to be fully established as having been illegally cast for contestee, the committee hold that the following should be held to have been illegally voted for contestee : W. R. Surratt, non-resident. Wm. Gibson, minor. John Starcher, minor. Jacob L. Starcher, non-resident. John Carney, unsound mind. O. J. Simmons, non-resident. Oliver Burns, non-resident. Reese Stratton, unsound mind. W. A. Palmer, non-resident. E. J. Long, non-resident. Dr. W. S. Reese, non-resident. J. D. Summers, non-resident. N. B. Armstrong, non-resident. John Ball, unsound mind. Abram Jones, pauper. Thomas Stinson, non-resident. James Dillon, non-resident. Walter Dillen, non-resident. Ali Artrip, minor. John Cox, non-resident. A. Kaminsky, non-resident. Lazarus^Wainer, non-resident. George J?ean, minor. Henry Tearing, non-resident. Joseph Starling, non-resident. E. D. Lewis, minor. James Bolyard, minor. Twenty-seven in all or forty-seven illegal ballots voted for contestee. 30 SMITH VS. JACKSON. W. H. Surratt (Record, pp. 58-62, 269-280) : This voter seems to be one of those whose residence at the place of voting was one of mere in- tention. His home and business were elsewhere at the time of voting and at the time of taking testimony. His intention seemed to be to re- tain a voting residence at his former home, without any fixed intention of ever resuming it as an actual residence. Wm. Gibson, John Starcher, minors (Record, pp. 63-66-7, 70-1, 296, 302, 307): The most trustworthy testimony in this case, fixed by writ ten documents, shows that these voters were minors. Jacob L. Starcher (Record, pp. 87, 88, 89, 350) moved from West Vir- ginia to the West in 1886 and back in 1888; claimed that he had not lost his residence; but in January, 18S9, he made oath that his residence was in Minnesota on April 1, 1838, and by so doing secured a release of taxes. He can not be heard to say that he had retained a residence in West Virginia against the fact of two years' actual residence with his family in another State and his declaration on oath designed to affect his property rights. John Carney (Record, pp. 83, 88, 89, 91, 327, 332, 336): The preponder- ance of evidence shows this man to be entirely irresponsible for his acts. On application of his brother a committee or conservator was appointed for him. It is said the clerk who made the appointment had no legal authority for his act. Be that as it may, it shows the esti- mate of his family and those who knew him best. O. J. Simmons, non-resident ''Record, pp. 83, 87, 333): Left West Vir- ginia and moved to Ohio a year or more before the election and voted there. Claimed that his vote in Ohio was illegal, as he intended to re- tain a residence in West Virginia. His act was inconsistent with such intention. Oliver Burnes : Was a resident of Ohio at the time of the election, having permanently moved from West Virginia. This does not seem to be controverted, but it is claimed that inasmuch as his name does not appear in the notice of contest the vote can not be considered. We have previously referred in this report to this class of votes, and this one lalls fully within the rule announced. Reese Strattou: This voter was not far removed from idiocy. W. A. Palmer, non-resident (Record, pp. 97-98, 365-366) : Became of age in May, 1888; lived with his father in Ohio, and moved with the family to West Virginia in March, 1888. His father rented a farm in West Virginia the previous fall and seeded it, but did not move to it until the following spring. The son helped the father do the seeding, then returned to Ohio, and went to school during the winter. There is no possible question about the illegality of this vote. E. J. Long, non-resident : Clearly not a resident of West Virginia long enough to obtain a voting residence. Objected to on the same ground as the vote of Oliver Burns, already discussed. Dr. W. S. Reese, non-resident: Moved to Ohio before the election with his family. His claimed intention to return to West Virginia was conditional. He not only did not carry out his claimed intention, which is a circumstance against him, but a few days after election abandoned all intention to return, and acknowledged himself a permanent resident of Ohio. Dr. J. D. Summers (Record, pp. 146, 149, 155, 475, 476) : Not a resi- dent of the county sixty days. The voter made arrangements to rent a house in the county on the 5th day of September, 1888, but did not move to it till the 17th. SMITH VS. JACKSON. 31 Claimed to be a resident because of his intention to become one. It requires the conjunction of act and intention to establish a residence. N. B. Armstrong (Record, pp. 149,151,155,473): Voted in Roane County, but had not lived in the county sixty days. Had a farm in Eoane County. Rented it, and moved to Wirt County in 188G. Claimed that he did not intend to abandon his residence in Roane County, but voted in Wirt County in the fall of 1886, which act concludes him to have intended to establish his residence there. He says himself that he can not say that he moved his family back sixty days before the election. John Ball : This man was not far removed from idiocy. John iStinsou: Voted in Wayne County, and lived in Logan County. Moved from Wayne to Logan in th spring of 1888. He was examined by the commissioners and his vote admitted on a ruling that he had not permanently abandoned his former residence. The uncoutradicted tes- timony is against his right and the voter was not called, although it appears that he could have been. This is one of the cases in which the ruling was based upon a misunderstanding of the law, and of what kind of intention it takes to retain a residence. James Dillen, Walter Dillen, non-residents: Father and son; moved from Kentucky less than a year before the election. Ali Artrip, minor, (Record, pp. 179, 202, 204, 481, 486-487) : We think there can be no question but that this voter was a minor. All the ad- missible testimony is to that effect. .John Cox, non-resident: Moved to Kentucky and engaged in busi- ness as a resident, paying taxes, working roads, etc. We think his re- turn to West Virginia was an afterthought, arising from the gift of some land to his wife by her father. There is more doubt about this voter than any other considered, but the committee thinks it the safer rule to exclude his vote. A. Kaminski, Lazarus Wainer, non-residents : They were Russian peddlers, naturalized in Baltimore, September, 1888, and proved that they had resided there for a year next preceding the election, as shown by the certificate of naturalization. They traveled around in West Virginia. Can not be heard to contradict their naturalization papers. George Dean, minor: This voter swears he was of age when he voted but the other evidence in the case shows that he did not tell the truth. He seems to have thought that he was doing.a smart thing in taking contestant by surprise, and contestee insists that contestant shall not be permitted to contradict his own witness. We do not so understand the law when applied to circumstances of this kind. Henry Tearing, non-resident: This vote was clearly illegal, but it does not certainly appear for whom it was cast. Joseph Starling, non-resident: Clearly illegal. Dispute as to how he voted. Considering all the legal evidence we do not think there is much room for doubt. E. D. Lewis, mino*: The most satisfactory evidence is that he was a minor. James Bolyard, minor: Admitted that the vote was illegal, but ob- jected to on the ground of want of notice which we have already con- sidered. Deducting Yearing's vote, and it leaves 26 votes to be added to the 20 admitted ; in all, 46 illegal votes cast for contestee, which, with the 12 plurality on the face of the returns, makes 58 plurality for contest- ant, which entitles him to a seat unless a larger number of illegal votes were cast for him. 32 SMITH VS. JACKSON. Contestant concedes that the following votes given to him were illegal : George Christian, non-resident. Isaac Dotson, pauper. P. Wayne, minor. George H. Rice, non-resident. Wesley McDonald, non-resident. Henry Cunningham, non-resident. The committee think that the following are clearly proven: Randolph Ferrill, minor. J. G. Mooney, minor. Benjamin Singer, non-resident. Robert Treet, pauper. B. F. Blusing, non-resident. T. J. Hurlburt, non-resident. John Hall, convict. John Mitchell, non-resident. John Woernlinger, foreigner. Peter Trent, non-resident. Spencer Dean, non-resident. Daniel Smith, non-resident. Eighteen altogether. There are others who clearly were not entitled to vote ; but as to some of them, as was the case with votes charged to have been cast for contestee and not considered by the committee, it does not ap- pear that they voted ; as to others it neither appeals for whom they voted nor with what party they affiliated, unless it be by what they stated after the election and after the legality of their votes had been called in question. Fourteen other votes, laborers on a railroad, are attacked on the ground that they had not lived in West Virginia for a year, were not residents of the district where they voted, and were employes of a cor- poration. As to some of them it clearly appears that they had lived in the State a sufficient time to entitle them to vote. As to none of them is it shown by competent testimony that they had not been so resident, and the presumption is in their favor. They belonged to a construction gang which had its headquarters where they voted ; to this point they constantly returned ; received their mail there ; had their washing done there, and had a right to fix their residence there. Their employment .by a corporation did not give them a residence, but it did not prevent them from acquiring one. Some had voted there a year before. We think the presumption of legality is in no way overcome by the evidence. William Wix, a minor, attacked by contestant and claimed by con- testee to have voted for contestant is a somewhat peculiar case. His mother and suster, with whom he lived and who testify to his minority, are Democrats of a pronounced type. On the morning of the election his sister says she asked him to vote for the Democrats, but that he de- clared his intention to vote Republican, and on the same evening told her he had done so. It is a little strange that knowing he was a minor his mother ,#nd sister should be sending him off to the polls and urging him to vote for their candidates, considering the testimony which they subsequently gave. At the polls he was challenged by a Republican, waited until his challenger was out of the way, and while yet at the election declared he had voted the Democratic ticket. We think it too uncertain bow he voted to charge his vote to either party. M. E. Polsne is another voter challenged by contestant. Placed on the stand by contestee to prove himself a legal voter, on woss-exam- ination he stated such facts as showed he was not, and then volun- teered the statement, not in response to any question by either party, that while voting the Democratic ticket he nevertheless voted for con- testant, and upon that testimony it is now insisted that this vote ought to be charged against contestant. SMITH VS. JACKSON. 33 This testimony was peculiar to say the least, and is subject to grave suspicion, but as the witness was not impeached by subsequent testi- mony we allow the charge and count the vote as illegal. This gives 19 illrgal votes for contestant, and leaves the actual plu- rality for contestant 39, which, in the judgment of the committee, is as near a correct statement of the true vote as can be given from all the evidence before us, and we so report. The commit tee, therefore, report the following resolutions, and recom- mend their passage : Resolved, That James M. Jackson was not elected as a Representa- tive to the Fifty-first Congress from the Fourth Congressional district of West Virginia, and is not entitled to the seat. Resolved, That Charles B. Smith was duly elected as a Representative from the Fourth Congressional district of West Virginia to the Fifty- first Congress, and is entitled to his seat as such. H. Mis. 1*7 3 VIEWS OF THE MINORITY, The various rulings of the governor of West Virginia, upon which the certificate was issued to Jackson, were in accordance with law, but there being other evidence now in the record showing that the returns counted by the committee correspond in each case to the vote actually cast, the minority so count. Believing, however, that the number of illegal votes proved by the record to have been cast for contestant in excess of the number proved to have been cast for coutestee is sufficient to overcome the plurality thus indicated for contestant, the right of coutestee to his seat is sustained. 85 VIEWS OF THE MINORITY. Mr. CBISP, from the Committee on Elections, submits the following as the views of the minority: We have heard read that portion of the report of the majority relat- ing to the law of the case, and in the main we agree with the view therein expressed ; at least in the application of the law to this case there seems to be no very important difference between us. Under the law of West Virginia the returns of the vote cast at the various precincts or voting places in each county must on the fifth day (Sundays ex- cepted) after every election be by the officers having charge of the bal- lots, poll books, and certificates placed before the commissioners of the county court, who are required to convene in special session on that day for the examination of such certificates or returns. Upon the de- mand of any candidate voted for, such commissioners are required to open the sealed packages of ballots and recount the same. Such com- missioners shall carefully and impartially ascertain the result of the election in their county and make out and sign as many certificates thereof as may be necessary, dependent upon the number of officials voted for. In the case of an election for Representative in Congress the commission- ers transmit their certificate of the result to the governor, who ascertains who is elected and makes proclamation thereof. The certificate of the commissioners of Calhoun County under date of November 12, 1888, duly transmitted to the governor of West Virginia, show that C. B. Smith, contestant, received 630 votes. The county court of said county, on January 7, 1889, entered an order changing the vote of Smith to 632, an increase of 2 votes over the original return or certificate. The com- missioners for Ritchie County sent two certificates to the governor, one dated November 13, 1888, showing that Smith received 1,1)72 votes, and the other dated November 14, 1888, showing that Smith received 1,973 votes, the later certificate showing one more vote for Smith than the earlier. The governor held in both these cases that he was bound to act upon the certificates earliest in date, for the reason that when the commissioners, acting as a board of canvassers under the law, made and transmitted to him their certificate of the result and adjourned their powers ceased, and both the order of the county court, correcting the first return from Calhoun County, and the second certificate from Ritchie County were illegal, unauthorized, and void. The undersigned are inclined to think the governor was right in his view of the law; but inasmuch as we are satisfied, from other evidence contained in the record, that the later returns show the true state of the vote in these counties, and inasmuch as we are not by the law re- stricted in our investigation as was the governor, we accept such later 248080 38 SMITH VS. JACKSON. returns and give to contestant all he claims, to wit; 632 votes in Cal- lioim County and 1,973 votes in Ritchie County. Perhaps it should be here stated that counsel for contestant appeared before the governor and insisted that the law required the governor to determine the result of the election from the face of the returns or certifi- cates, insisting he had no right to seek or look to any other source of in- formation. Alter argument the governor decided this view correct, and held he could not go behind the returns. The commissioners of Pleasant County certified to the governor that " J. M. Jackson received eight hundred and twe votes." On this ques- tion the governor, in his order-book declaring the result of the election, says : The words and letters are too plain for any mistake. For the reasons heretofore given tlt<>re in no authority to go behind the returns. The vote certified must be counted if enough appears to ascertain the meaning. In an action upon a note it was held : "There was no error in admitting the note sued on in evidence, because the amount thereof is written four hand and two and 50-100 dollars." (Glenn va. Porter, 72 lud., p. 525.) o it has been held that the abbreviation in a declaration, " Damages one thoun dollars" is not error. (1 W. L. J., Mich., 395.) If enough appear to make the return intelligible it should be made so. This can not be done without, striking out one letter and inserting another, or by supplying the seemingly omitted letters. Acting upon the face of the paper the latter appears more in consonance with adjudged cases. The least number would give Jackson eight hundred and twelve votes. It will be so entered. After carefully considering the evidence contained in therecord evi- dence wholly outside of said certificate we thinkrhe true vote received by Jackson in Pleasants County was 802; we have therefore so counted it, thus conceding to contestant just what he claims as to the true vote in this county. Coutestee averred that certain polls should be rejected because he says it does not appear the managers of election were duly sworn. In such cases the law of West Virginia imperatively says the vote shall not be counted. vVe are not satisfied that the evidence establishes this charge, and therefore we reject no polls on this ground, thereby again agreeing with the contention of contestant. Contestee claimed that the vote of Walton precinct in Roane County should be excluded because there was "such misconduct and neglect and failure to discharge their duty on the part of the commissioners of election who held the election on the 6th day of November, 1888, at that precinct as amounted to fraud." It appears from the evidence that the b;illot-box was an oblong, firm, wooden box, with a sliding lid, with a hole through the top to receive the ballots ; there was a lock on the box, but no key; the lid would slide easily; a nail was used to keep the lid from sliding; the nail could be pushed in and pulled out with your lingers. This box in this unsecured condition was for a time in the ex- clusive possession of Mr. Garvin, a Republican commissioner, and Chris. Summers, another Republican. They had opportunity to have tampered with the box, and to this extent its integrity is impeached. Mr. Garvin and Chris. Summers were not sworn by the contestant to show they did not tamper with or stuff the box. Contestant gave con- testee notice that he would on the 18th day of July, 1889, examine these witnesses, but he did not do so. There may be some question of thepro- priety of accepting this return, but inasmuch as the only circumstance to show actual fraud was that the Republican majority was larger than was expected we do not reject the vote ; thus again agreeing with the contention of contestant. The point was made in two cases that the voting place in precincts had been unlawfully changed or moved, but it appearing the vote was reasonably full, and that all parties on elec- SMITH VS. JACKSON. 39 tion day accepted the new place as legal, we see no reason for rejecting votes on this ground, again agreeing with the contention of contestant. This, we believe, disposes of all exceptions which might be by some thought technical, and we find ourselves at that point in the case where we begin to examine the evidence bearing upon the votes charged to be illegally cast for contestant, aud the evidence bearing upon votes charged to be illegally cast for contestee, in full accord with the contestant as to the number of votes, including those charged to be illegal which were cast for the parties to this contest, respectively : For Charles B. Smith 19,837 For James M. Jackson 19, 82. No, sir ; not at all, further than it necessarily delayed the recount : but it was not intended to interfere with the recount. There was no attempt to contradict this statement or to impeach the witness. 70 ATKINSON VS. PENDLETON. He swears positively that his business with Wells was of a private nature and had nothing whatever to do with the election, and that the telegram was not intended to interfere with the recount, further than it necessarily delayed it. If the contestant doubted the truthfulness of Earnshaw's statement, it was his duty to summons Wells. This he did not do. There is no evidence Mrs. Earnshaw was not sick. She has been in delicate health for years, and sometimes in very bad health. (Record, 363.) One witness testified that she attended a party at his house, " he thought" on the 22d November, but " would not be certain" (record, 363.) We submit that there is nothing in the testimony in this case to im- peach the integrity of Earnshaw and to stamp him as a man not only unworthy of the honorable position he holds but as a malefactor almost of the deepest dye. We come now to the testimony in regard to Snodgrass, the deputy clerk, and before presenting it we desire to say that the conduct of this man after the recount was certainly not commendable. It seems that he expressed a willingness to take money from the chairman of the Republican State committee of West Virginia upon consideration that " he would tell all he knew about the ballot-scratching," when he swears he knew nothing and could not have told anything. He seems to have regarded this as a pardonable device to obtain money from the Eepublican party, if its chairman was " foolish" enough to pay it; but this can be said in his behalf, that it he had been corrupt and vil- lainous enough to "scratch" the ballots, as charged, he would have been corrupt and venal enough to have made statements more direct, which, though they might have been false, it seems would have secured pecuniary benefit or bribe-money. In a word, money or positions were ready for him if he would lay the " scratching " upon some person ; and if he was bad enough to commit the fraud charged, he was bad enough, for money or position, to make a false statement implicating some one else. The evidence, however, shows conclusively, we think, that he could not be led into any statement except that "he would tell all he knew; " and this not being satisfactory to the chairman of the Republican State executive committee, the negotiations ended. This conduct upon the part of Snodgrass alone has induced the con- testant to charge him with scratching the ballots, as he had access to the clerk's office. At first, J. M. Mclutire, who seems to have had charge of the Republican organization in Wetzel County, suspicioned a man by the name of Null, whom he said was acting suspiciously in the clerk's office one evening, but he found he was mistaken in the man, and that "got him oft' his pins and he did not know what to say" (record, 937.) He then engaged a man by the name of Grail, against whom he held a bond and to whom he promised $650 or $700, " enough to square off" the bond and a position in Washington at $100 per month, for four years, to gather information for him, and suggested that Suodgrass " knew all about it." Grail went to Snodgrass and told him what Mclntire had promised him, and Snodgrass told him to agree to tell all he knew about it " and then swear you know nothing " and get the money. Grail said he would not like to do that (record, 938). We give the following as the further statement of Grail in his oiwn language: He (Snodgrass) said I would if I could get a chance at them; I told him then I could easily enough get them on to you by telling them I believe that you knew something about it and that you would tell all you knew about it for a certain ATKINSON VS. PENDLETON. 71 amount *** It was found necessary to give the Wheel candidate official indorsements by the Republican party so as to control the voters to his support. Accordingly the district committee waa called together, when it was found that a wide difference of opinion existed among them. The more intelligent argued that as the Wheel candidate and Democratic candidate had already made a canvass of the district and the lines were sharply drawn and the fight so far almost entirely within the Democratic party, it was an opportune time to run a straight Republican and capture the district. After much discussion they adjourned to October 27, when they gave the Wheel man an indorsement, etc. We give the above quotation from contestee's brief for the purpose of showing that there was great disaffection among the Democrats in this district, and that all the other parties Wheelers, Greenbackers, and Pepublicans were supporting the contestant, who had been a Demo- crat and who was "in a frame of mind to drift away from the Demo- cratic camp," and it may furnish a solution of why it was necessary for the contestee, or his friends, to overcome this defection in the strong Republican counties. It is clearly established by the evidence that Crittenden County is Republican, and for years has given large majorities for the Republican party. William Royster, in speaking of the number of Republicans in Crit- tendeu County, testified : Q. What proportion of that vote is the Republican vote? A. About 2,500 or 2,600. (Printed Record, page 191.) On the same subject, Jordan Yates (col.), a witness on behalf of the contestant, being first duly sworn, testified as follows : Q. What is your name ? A. Jordan Yates. Q. Where do you live ? A. Live in West Memphis, Crittenden County, Ark. Q. How old are you ? A. I am about 42. Q. How long have yon been in Arkansas ? A. Ever since 1865 ; Crittenden County. Q. What is your business ? A. Farmer. Q. You've had something to do with politics in your county ? A. Oh, yes, sir: I've had a great deal to do with it. Q. Do you hold any official position in your county ? A. I'm chairman of the county central committee, and was also chairman of the county convention ; I'm chairman now of the county central committee. Q. Have you a pretty good idea of the number of voters, Republican voters, in your county ? A. Yes, sir; I got a pretty good idea about the number of Republican vot- ers in the county. Q. What's your estimate ? A. Well, sir, I think there's about 2,500; that's pretty close. I think it's close on to 2.500. (Printed record, page 192.) On the same subject J. L. Fleming testified : Q. Do you know whether, if there was a correct count of the actual vote in Critten- den County whether the Republican party or Democratic party would carry the county? A. Well, sir, if they had a correct vote, the two parties, Critteuden County is Republican by 1,800 majority ; that's what I think. (Printed record, page 195.) Wash. Deaver, on this subject, testified : Q. Did the colored people over there take any interest in the national election ? A. Yes, sir; biggest vote was polled in that county in the national election ever I knowed, and I been there ever since the surrender. Q. What was the vote of that county in the national election; do you know ? A. I don't know exactly. Q. Have yon any idea ? A. I think it. was about 2,500. Q. Who was that vote polled for T A. Harrison and Featherston. FEATHERSTON VS. GATE. 79 Q. Why were the colored people of that county especially anxious for a Rep. ad- ministration of national affairs? A. Well, sir, it was on the account of they had been pressed by this Winchester crowd this last year, and hoped to get some relief from that element. I knew years before that in the Presidential election they hardly ever paid any attention to it, scarcely polled any votes there in the county. Q. What do you mean by being pressed ? A. No, sir ; not a fair show before the law, and the ballots never were counted ; they had no show at all. The Winchester crowd just bulldozed and done as they pleased, and if they had a mayor to try him, if he was on their side they'd turn him loose, no matter what his crime was, and the other party was put in jail and prosecuted every way they could. Q. Do you think the Rep. party of Ark. expects the national Rep. party to remedy that state of affairs ? A. That's what they think. Q. Was it in that hope to turn out and poll such a large vote for the national ticket ? A. Yes, sir. Q. It they had received a fair count, about how much' plurality would they have received ? A. About 2 thousand. (Printed record, page 224). E. D. Sanders, on tbe same subject, testified as follows : Q. What proportion of the vote in the county of Crittenden do you presume was polled for Harrison and Featherston ? A. I think there was twenty-five hundred votes ; I made an estimate of i t myself. Q. What was the proportion ? About six to one. Q. Did Featherston receive any other votes in the county of Crittenden in addition to those polled for Harrison ? A. Yes, sir. Q. Of your certain knowledge? A. Of my certain knowledge. Q. In your own precinct wfeat was the vote ; were you at the polls yourself? A. Yes, sir ; I was at the Bradley precinct. I think Featherston was 195 ; Cate was 4. Q. In the county precincts is that a fair proportion of the Democratic and Repub- lican vote in Crittenden County ? A. Well, that one wouldn't hardly be. There's two or three, Black Oak and Marion and Crawfordsville, I expect there is a little varied. Q. I say the country precincts. A. Yes, I reckon it would ; that would be a fair sample. Q. The falling off of your vote on account of its being a rainy day at your precinct, do you recollect what it was what per cent.? A, The falling off was 5 per cent, Q. Was the interest manifested in the national election about equal all over the county ? A. Yes, sir ; well, I took really more interest myself in it than I did in the State election. Q. And had the interest pretty generally infused all over the county 1 A. Yes, sir. (Printed record, page 200. ) David Furgeson, on the same subject, testified : Q. The Republican vote in that county was about what, in round numbers ? A. About 2,500. Q. Their Democratic vote was about what ? A. About 420. (Printed record, page 206.) It appears from the record that prior to July, 1888, the county court clerk and one other officer of this county had been indicted for drunk- enness possibly under the following statute of Arkansas : SEC. 561. When the circuit court shall be satisfied, from its own knowledge, or from the information of others, on oath, that the clerk of such court has been guilty of any misdemeanor in office, or shall be incapable of discharging the duties of his office according to law, or shall be a drunkard, such court shall give notice thereof to the prosecuting attorney, stating the charges against such clerk, and requiring him to prosecute the same, and such clerk may be suspended from office until a trial can be had, etc. (Mansfield's Digest of Arkansas.) SEC. 6475. Whenever any presentment of indictment be filed in any circuit court of this State against any county officer for incompetency, corruption, gross im- morality, criminal conduct, etc., such circuit court shall immediately order that such officer be suspended from his office until such' presentment or indictment shall be tried, etc. (Mansfield's Digest of Arkansas.) Why the indicted officers were not suspended in compliance with these statutes, after having been indicted, is not susceptible of expla- nation, except upon the assumption that the judge of the circuit court did not think the indictment could be sustained, and was therefore un- willing to allow the law to be used as any part of a scheme in political 80 FEATHERSTON VS. CATE. manipulations. Upon the indictment found against them these officers were to have been tried on the 12th day of July, 1888, the court being then in session. On that morning something like 100 men appeared at the court- house town armed with Winchester rifles. None of the rifles seems to have been seen by any, except those in the plot previous to that day. These men, thus armed with Winchester rifles, proceeded to take into custody and torce all the county officers, save the sheriff, who was of the " Wmehester-rifle crowd," to leave the county under threat of death if they returned. It appears from the record that this armed force conducted these officers and others across the Mississippi River and left them in the city of Memphis, Tenn. Had they simply exiled the officers indicted for drunkenness, their conduct would have shown they had lost confidence in the court, or that they did not believe the indictments could be sus- tained. It seems to us that if they were simply dissatisfied with the officers who had been indicted they would not have driven other county officers, who were not indicted, nor private citizens from the county. The motive for what thus took place by this process of deportation on the 12th day of July, 1888, must be sought in something other than a desire to rid the community of the indicted officers. We are of the opinion that this motive may be found, and for that purpose reproduce a portion of the testimony appearing in the printed record, stating what was done on the morning the trial was to have taken place. David Fergerson (col.), a witness on behalf of the contestant, being first duly sworn, testified as follows : Direct examine : Q. What is your name ? A. David Fergeraon. Q. Where do yon live f A. Live now in Memphis. Q. Where did you live at the national election last year ? A. Memphis, Tennessee. Q. W T here did you live previous to that ? A. Lived in Crittenden County, Arkansas. Q. What was your business at the time you left Crittenden County, Ark. I A. I was clerk of the circuit court. Q. How old are you ? A. 39 years old. Q. How long have you been a citizen of Crittenden County ? A. Since 1872. Q. You served how many times as clerk ? A. Three terms. Q. Please state the time and manner of your leaving Crittenden County. A. On the morning of the 12th day of July an armed mob, composed of over a hundred men, surrounded my office ; I was in my office, and my deputy, Mr. Fleming, here. The mob ordered us to come out, and told us that some of the white people had got anony- mous letters ordering them to leave the county, and they had determined among themselves they shouldn't leave ; that we had to leave or they hoped to meet us in heaven. I told them that I had nothing to do with writing thoe letters ; didn't know anything about them, and I couldn't go. They said we ''had to go ; if you don't we are not responsible for you." The court was in session, Judge Riddick on the bench, the grand jury there, and I told this armed mob that " if we had com- mitted a. crime, here's the grand jury and the court ; indict us, put us in jail, and try us." "No ; you've got to leave this county ; this is a white man's government, and we are tired of negro dominations ; we have been planning this for the last two years, and no more negroes or Republicans shall hold office in this county." Q. Did you leave them of your own accord ? A. I told them I couldn't possibly leave; I had a bond there, and had to protect my bondsmen as well as myself, and Col. Smith and Dr. Bingham spoke up and said, yes, we'll have to give him till even- ing to get out ; I saw my bondsmen ; they were all there with the guns in their hands ; I saw them and talked with them, and that evening I left. Q. Were your bondsmen white or colored men ? A. They were composed of white and colored ; the white men that was on my bond was there armed. Q. State whether there had been any charges preferred in court against you ? A. I had a charge preferred against me there for drunkenness in office, come up for trial that morning ; they found there was nothing in it and took these steps to get us out ; said they had to control the offices, and only way to control the offices was to get us out by getting the leaders out they could control the balauce. FEATHEESTON VS. CATE. 81 Q. Had you ever had any personal trouble with any considerable number of white people? A. I never did; in 1886 I was elected without opposition as clerk of the court. Q. How many charges have been preferred against you since that time ? A. Been 11 charges. Q. Upon how many have you been tried ? A. Haven't been tried on one ; I took a change of venue from that county, because I couldn't get justice there, to another county in the district. Q. State if the bond you made was accepted by the sheriff. A. The bond that I offered was refused by the sheriff, and I had to carry my bondsmen into open court, and the bond was approved by the judge. Q. After having been refused by the sheriff? A. Yes, sir. Q. Were any of the present officials, or the officials that were in office at that time, among that mob ? A. Yes, sir ; W. F. Worner, sheriff, Sam Keel, clerk, S. A. Martin, county judge, W. J. Harden, assessor, C. E. Easpberry, coroner, A. H. Ferguson, treasurer. Q. Was Worner the sheriff at that time? A. Worner was sheriff at that time; 12 day of July, and is now present sheriff. Q. Did he show any right or warrant or authority by which he ordered you out of the county ? A. He did not. *##*#* Q. What reason did they give you for not giving you a trial, when you asked it, upon the day that they ordered you out of the county ; what reason did they assign to you for that action ?> A. There was no reason ; they said, " God damn you, you got to get out of this county. By God, you been here too long ; this is a white man's country, and we will control it. We been waiting for two years for thisthing, and you got to get out." I said, " Gentlemen, the court is in session and here's the grand jury." They said, " God damn that, you got to get out." Q. The circuit court was in session? A. Yes. sir. Q. Was there any effort made by the circuit judge for the protection of citizens of the county that you know of? A. None in the least. Q. Did he know this thing was going on ? A. To the best of my knowledge and information and belief, he did. Q. He was not present at the time, was he ? A. While they had us under arrest the capt. of the mob said, " The judge wants you to come up to the court-house and we don't want him to see us here with these men ; just carry them around back of the court-house, right under a shade tree." The judge come up there and called court and took a recess, and I saw him standing in the back door of the court-house looking over there where these men were guarding myself and others. Q. Are you satisfied that he saw you ? A. Yes, sir. Q. Did you hear him enter any protest against that proceeding? A. No, sir; I did not. The only thing I knowed him to do I was indicted, as I told you before Judge Gate and Mr. Adams, my attorneys, they come down to my house to see me, and said that Judge Eiddick, if I thought it necessary, said he would get out a writ of habeas corpus for me. I told him no ; I didn't think it necessary, because-I wasn't under legal authoiity ; that his court had no jurisdiction over an armed mob. I paid Judge Cate and Mr. Adams to defend me in that indictment against me. Q. Did he abandon your case? A. No, sir, he did not ; told .me he'd stick by me if I wanted to go any further in the case, but he advised me I'd better let it drop. (Printed record, page 207-8.) The county court clerk, Furgerson, it will be seen closes his testi- mony by saying that contestee as his counsel advised him (Furgerson) that he " had better let it [the suit] drop." There was no way to "let it drop" except by pleading "guilty," and that would oust him from his office, which was one of the objects, no doubt, from the proof in the record, for which the conspiracy had been formed. If the contestee had nothing to do with what transpired in Crittenden County, in July, his presence and utterances there have placed him in rather an embarrassing position. His advice to Furgerson has a sig- nificant bearing. J. L. Fleming (col.), a witness on behalf of the contestant, being first duly sworn, testified as follows : Q. What is your name? A. J. L. Fleming. Q. What is your residence ? A. I am a resident of Memphis, Tennessee. Q. What were you at that time ? A. Eesident of Marion, Crittenden County, Ar- kansas. H. Mis. 137 6 82 FEATHERSTON VS. GATE. Q. What is your occupation? A. I was deputy clerk under Mr. Ferguson, and editor of the Marion Head Light. Q. What is your age ? A. 29. Q. How long have you lived in Marion, Ark.? A. About four years. Q. Did you have to leave Marion, Ark., Crittenden County, any time last year? A. Yes, sir; on the 12 day of July, 1888, myself and ten others were brought from Marion to Mound City by an armed mob, and put on the ferry-boat at Mound City :iud sent over to Memphis, and guarded to Memphis ; three of the men came on this side. Q. How many men were in that mob ? A. I don't know ; probably a hundred or more ; more or less. Q. Whut were their reasons for sending you out of the county I A. Well, they claimed lhat several of the white citizens had received anonymous letters saying 1 h:it t hey had to leave Crittenden County within five days from the time those letters were received. Q. Do you know anything about those letters at all ? A. Yes, sir; I know some of the citizens did receive such letters. Q. Do you know who wrote them? A. I do not ; I didn't write any of them, and knew nothing of them directly or indirectly. Q. You say you were editor of a newspaper? A. Yes, sir. Q. What were, the politics of that paper? A. It was a Republican paper. Q. Did you suffer any loss of property, time, or money in this exile? A. Yes, sir; I sunered right bmart loss of money ; had some property damaged. Q. Go on and tell about the threats that were made. A. Well, yon asked a ques- tion awile ago ; didn't finish about why we were sent away ; they said these letters had been written by us, myself, Ferguson, Dan Louis, and others ; said we were im- plicated, and for that reason they came and exiled us from the county. Q. Were there any threats made towards you ? A. Yes, sir ; when they brought us away they said wo were never to come back to that county any more, and if we did it would be dangerous ; they meant, from what they said, they would kill us ; that was the inference ; never to return TO Crittenden County any more. Q. You say you have left Crittenden County? A. Yes, sir. Q. Why did you leave ? A. I left because they sent me away, and said I never should live there any more ; and all of my business had been suspended there ; and I had nothing to do there ; that's one reason I have, and then, again, I don't feel safe in living there any more. Q. You think your life is more or less in danger if you lived in Crittenden County now ? A. Yes, sir ; I think some of those men there would, under some circumstances, attempt to assassinate me. Q. Do you know whether the Republican party of Crittenden County, or Democrats, as a rule, were intimidated by the armed men in the last election there the last na- tional election? A. Yes. sir; at the election in September, the State election, they were directly under the influence of that shotgun crowd Winchester crowd; and! believe the same influence was brought to bear at the national election, though it may not have been as forcible as at the State election ; but I believe the Republicans, the colored people, were under that same influence, and they wouldn't vote as freely as they had done heretofore. * # _ * * Q. You say you were exiled from Crittenden County last July? A. Yes, sir; on the 12 day of last July. Q. Did they accuse you of anything else, or any of your companions in exile, of any crime? A. They had never accused me of anything; they had -Mr. Ferguson and Judge Louis ; they had been indicted before that ; they had been indicted for intox- ication in office ; that was all against them. Myself they had never accused of any- thing never had been convicted of any sort of crime, felony, or misdemeanor either; never have been indicted except for these anonymous letters, and never had any trial of any sort, either criminal or civil, in that county. (Printed record, page 195.) Why they drove the Republicans out of the county. William Eoyster (col.j, a witness on behalf of the contestant, being first duly sworn, testified as follows : Q. What is your name ? A. William Royster. Q. Where do you live? A. Live in Memphis now, sir. Q. Where have you lived before you came to Memphis? A. In Arkansas, Critten- den County, Marion, Ark. Q. When did yon come to Memphis ? A. Come here in September. Q. In what year? A. 1888. FEATHERSTON VS. GATE. 83 Q. How long had you lived iu Arkansas before that ? A. About 14 years ago on the 15th. Q. How old are you ? A. I reckon I'm about 39 or 40 years old now, sir. Q. What is your business ? A. I used to drive the stage there till the Kansas City road catiie through, and after that I followed up renting out horses and buggies, and farming there. Q. Did you have a home there at the time you left? A. I did. Q. Have any other property iu the county ? A. Yes, sir ; I had 160 acres of land. Q. Why did you leave at the time you did ? A. I voted the second or third of Sep- tember, and during that dny they come to me four or five different times to get Re- publican tickets and I wouldn't let them have it ; and lhat night they gave me my orders to leave in. ten days. Mr. Force came that night and gave me orders to leave ; he come tome setting on the porch in front of my house ; he said he had orders to do so ; I asked him orders for what ; he said, "Orders to wind up your business and leave the county." I asked what had I did; he said all I could against the white people. I said I hadn't done anything against the white people more than voted and issued the Republican ticket. He said, " Well, you got to leave or we'll kill you 'cept heaven and earth come together ; " I said, " I ain't able to go." He said I could do as I damn please, stay or go ; but I'd find out by waiting. I staid there till the next Monday night ; the next Sunday night he shot at one of the neighbors ; and Monday morning Joe Randolph was down there cleaning his horses, and he asked him how was it ; and he said them that shot at him know who it were, and he said he had been to Royster and told him to leave ; I told him what the consequence was and he had to go to Dr. Binghain and ask him, and Dr. Biugham was iu the midst of 30 or 40 when the plot was made ; and if he don't leave we will kill him 'cept heaven and earth come together. I left then ; I hurried and got my clothes on ; that Avas betwixt 12 and 1 o'clock. The train had got there before I got to the depot, and I left on my crutches and stick, and I went North and stayed there three or four days ; and when I thought things had gotten quiet so I could come through the lines, I come here to Memphis. Q. Do you know what political party Frank Force belongs to ? A. Democrats. Q. Was the hostile demonstrations over there universal toward the colored peo- ple? A. Yes, sir. Q. In what way ? A. Using Winchesters and threatening them, and pretty well in every respect. Q. Did many of them leave there in consequence of it * A. No more than they run out of the county as I know of. Q. Did you suffer loss in regard to your property by leaving there? A. Yes, sir; after I left they killed one of my mules. I was offered $400 for the pair time and again ; and they shot my bay more so it couldn't get about, and my house and things has all gone to destruction. I can't hear of any of them at all since I been away. Q. Are you afraid to return there now ? A. Yes, sir. **#* Q. What act had you committed that caused Mr. Forest, as the representative of this organization, to threaten to kill you if you didn't leave the county ? A. That day at my house, of course I lived next to the court-house, I issued tickets that day. I were acquainted with the people all, you know, and generally they trusted me with the tickets ; Republican tickets at the State and county elections, and I issued tickets that day, and I suppose betwixt 8 and 9 o'clock along came a young fellow, Ben Novel, and asked me for a ticket. I says, " You know you ain't going to vote this ticket ; you want me to give it to you. I ain't got any to spare." About five min- utes from that Mr. Cox come ; I told him I ain't got tickets to spare. " Well, my wife wants to see one." "Well, I ain't got tickets to spare; I ain't got tickets for it now," and Mr. Cox came back after dinner, again, for a ticket and I wouldn't lot him have it, and about an hour after that Jim Loyd wanted one for Mr. Kelley to see, and I said, "I ain't got no tickets for Mr. Kelley now ; need .them for the men," and he went off and made a great bluster, and I kept the tickets till about half an hour before the election, and he come back for a ticket, and I wouldn't let him have it, and he said, "By God, you'll remember it," and that night Mr. Forest come and gave me my orders to leave. Q. If you were in Crittenden County would you give this testimony you are giving here now? A. No, sir; I wouldn't do it. Q. Why not ? A. I'd be afraid. Q. Afraid of what? A. Afraid I'd get shot. Q. Do you think the other witnesses would come up and testify as they have done in this investigation? A. No, sir; they would be afraid of the Winchesters. Q. Who has got possession of the Winchesters ? A. The Democratic party's got possession of them. (Printed record, page 189-90.) 84 FEATHERSTON VS. CATE. Henry Biby (col.), a witness on behalf of contestant, being first duly sworn, deposes as follows : Q. What is your name ? A. Henry Biby. Q. How old are you ?- A. About. 26. Q. Where do you live ? A. Been living in Marion all my life, i the county of Crittenden. Q. What State ? A. Ark. Q. What is your business ? A. Well, for the last year I was deputy assessor for 4 years. Q. How long since you left ? A. Been away since the 12th of July. Q. Why did you leave ? A. I was at home making a recapitulation of assessments I had made on Thursday morning : 16 men come up and asked me where was Sky- more ; I told them I didn't know ; Mr. Jim Bassett said then, " It's a damn lie, I did know," and said, " You come out, this country's getting too small for you edicated niggers and we white folks," and went on to Marion, and as we passed the she lifFa office they had a man named Dock Pointers, and the sheriff said, " Turn him loose," and they taken us, and they taken us on and under the shade tree; they searched ns, and about 10 o'clock they marched us off a mile down the Milder road toward Mound City, and a wagon overtaken us, and they put us in and carried us to Mound City ; there we got. out and came aboard of the boat, and '9 of them got on the boat with Winchesters and horses, and when the boat landed at Hope Field I got off and 3 fol- lowed us to the foot of Jefferson street, and then told us, "Now you can go, you never have been escorted by a lot of white gentlemen before in your life, its quite a compli- ment to you, and unhurt, but if you ever come back to Ark. you must abide by the consequences." Q. What position were you holding at that time? A. Deputy assessor, under Rucks, appointed by the county judge. Q. Had you violated the law in any way ? No, sir ; I had been to the upper end of the county a day or two previous to that, and came home on summons by the circuit court as a witness in the case of Billy Shelton ; that's why I was there at court at that time. Q. What reason did these armed men give why they exiled you from the State ? A. At that time they said I was a very prominent negro in society, business, either belonged to several different societies, and afterwards they accused me of being a con- spirator. Q. Did you belong to some societies? A. Yes, sir; the Knights of Labor and Ma- sonic. Q. Did they teach you to violate the law in any way ? A. No, sir ; we never met and discnsssed religious matters or matters concerning the civil laws. Q. Did they teach you to rob and steal and insult the white people of the country ? A. No, sir ; teaches us a better grade than that. Q. You were a member of the Knights of Labor ? A. Yes, sir. Q. And are there some white people members of the Knights of Labor, too? A. I suppose there are. A white gentleman, Mr. V. A. Miller, set us up, from Paragould. Q. Do yon know who Mr. C. A. Miller was ? A. Organizer of the Knights of Labor and school-teacher at Paragould. Q. Do you know how he stood at Paragould? A. Mr. William Stranges said he was a very intelligent man, very high in the community in which ho lived. Q. Was there any reason at any time why any member of the Knights of Labor, a white man, couldn't have come into your lodge at any lime as a visiting member? A. No, sir; while Mr. Stranges resided in Marion he very frequently visiie.d whenever we met, and others, and the night that we were set up a goo;l many of the. prominent white citizens of Marion came down to our hall to listen to the instructions of Mr. Miller, and said they didn't see nothing in it why it shouldn't be set up. ******* Q: How many were sent away from there at the same time you were? A. Nine outside of myself. Q. Do you know what charges were brought against these 9? A. No more than they were accused of being accessories, and some have been ones that is writing these anonymous letters. Q. Do you know who wrote those anonymous letters? A. No, sir; I do not. Q. Had you or your friends ever heard of these anonymous letters until you were accused of having written them? A. No, sir; not before Tuesday at 12 o'clock; the mail was distributed ; the sheriff and other citizens got letters, and I heard some of them say some of the white citizens had gotten warning letters to leave the county in 5 days: well, it was a very serious charge, and a good many prominent colored men at once, thought that it was expedient that they would draw up a resolution or something offering to the judge ou Wednesday that he would instruct the grand jury to investigate the matter and punish the guilty ones ; and Judge Lewis, he presented FEATHEESTON VS. GATE. g5 the petition ; the judge highly complimented it ; thought everything was all right, the court adjourned that evening : they all met in the court-house and Thursday about daylight about 125, more or less, armed with Winchesters, came to Marion, and about 9 o'clock they came to my house ; I live in the suburbs with my mother ; a place she's bought there. Q. Did you know the men that had those Winchester rifles? A. Pretty well all of them at that time, but since I've been here I've forgotten a great deal, but the prom- inent one of them I know. Q. Yon saw these men with the Winchester rifles? A. Yes, sir; I seen them ; and I can name them that come over to Memphis with me ; I've got a list of all of them where I'm stopping at. Q. When they came to you did they claim to represent any legal authority ; did they present any papers showing any authority for that sort of matter ? A. No. sir. Q. Did they claim to be acting as militia? A. No, sir. Q. What was it that made you go ? A. I didn't know what was the matter. Q. Under those circumstances why did you leave the county t A. The reason why I lr ft the county was because I saw that I had no protection, and that if I stayed there there was two chances to one that I might be killed ; then they ordered me to leave. The sheriff was in the crowd and told them to take me on, that I was one of them, and he went on back in his office then. So then, on the second Monday in Feb. I went over there for trial, and Tuesday it was I went for trial; Jan. it was, and I gave $250 bond and went for trial, and the prosecuting attorney continued my case, and the evening he continued Col. J. F. Smith was sitting in front of me, and he turned back and whispered, "Henry, I think its best for you to get on the train and leave here, because some of these mischievous white boys, or some one may whip around and hurt you ; " and under his advice I taken the first train coming for Memphis and been here ever since. Q. Who was it gave you that advice? A. Col. J. F. Smith. Q. Have you since gone back and been tried? A. No, sir; it was continued till July. Q. You haven't yet been tried ? A. No, sir. Q. Had you at any time had any special trouble with any number of the white citizens over there? A. No, sir; some of them that morning prevailed that I should stay, and some said I was a quite peaceable boy, and others says, no, he must go just so. Q. Have you ever had any principal difficulty with any of the white people ? A. No, sir ; I was raised there among them, and never did have any difficulty with any of them. Q. Had you considered them your friends iu a business way ? A. Yes, sir; I gave them the houo'r that was due them. Wash. Dever (col.), a witness on behalf of the contestant, being first duly sworn, deposes as follows : Q. What is your name ? A. Wash. Derver. Q. Where do you live ? A. I live here now ; I used to live in Crittenden County, Marion. Q. What State ? A. State Ark. Q. How old are you ? A. 36. . Q. How long had you lived there before you left ? A. About 25 years. Q. When did you leave ? A. On the 12th day of July, '88. Q. Did you leave of your own accord? A. No, sir. Q. Why did you leave ? A. I was told by the sheriff to leave there ; if I didn't I'de be killed on the 12th morning of July. Q. Had you committed any crime? A. Nothing at all, sir. Q. Did you leave ? A. Yes, sir. Q. Yon say the sheriff told you if you didn't leave there you would be killed ? A. Yes, sir; he told me that morning that he found my name to one of the notices written to the white people that they'd have to leave there in 5 days, and if I didn't leave that morning I would be killed. Q. Did you leave by yourself ? A. No, sir; me and F. T. Moore left in company together. Q. Did you see any armed men over there at that time? A. Yes sir. Q. Whereabouts were they ? A. They were in the court-house yard; there was a big crowd in the court-house yard, and then Dr. Barton and Dr. Bingham went to my house, looking for me, with their Winchester rifles. Q. How many was in the crowd in the court-house yard? A. It seemed tome theje was 75 or 100 men ; all was armed ; all had Winchesters, except Chase ; he had a double-barrel shotgun. Q. What was the object of that meeting ; do you know ? A. No more than what 86 FEATHEPSTON VS. GATE. they done; they went in there and marched ont ^ergason and Fleming and Ramsey and Hunt and Fergason again : that was what I saw ; and stood them up side of the court-house and searched them. Q. Then what did they do ? A. Then marched them from there to the mayor's house, north of the court-house, and set them under trees, and I saw them running around looking for me, and I went off, and went down in a field I was cultivating down there. Q. Were you frightened ? A. Yes, sir ; and that time I was pretty badly fright- ened. Q. Did they make these other men leave the county ? A. Yes, sir; made them all leave. Q. Were they men of family ? A. Yes, sir ; most all of them. Q. Did they have anv property there ? A. Yes, sir ; all, except some few. Q. Did they have any crops ? A. Yes, sir. Q. Were the crops injured on account of their leaving? A. Yes, sir; all destroyed. Q. Did you have any property there T A. Yes, sir. Q. Was it destroyed ? A. Yes. sir. Q. You say you are living here now * A. Yes, sir. Q. Are you still afraid to return ? A. Yes, sir. Q. Do you think if you returned your life would he in danger ? A. Yes, sir ; they told me that several times. Q. Are the others exiled with you still living here ? A. Yes, sir ; afraid to go back. I don't know any that has gone back, except Dan. Lewis; he goes over there occa- sionally. Q. Have you ever been convicted of any infamous offense before the law ? A. No, sir. Q. Ever been accused of anything before the law previous to that ? A. No, sir. Q. Have you a family? A. Yes, sir; wife and six children; my wife is laying very low now. I had a lot and a nice orchard there, and my trees is all being destroyed nearly ; I had about 90 acres in cultivation that I was running, and I had some hogs and cows and house furniture, and everything, it was all destroyed. Q. Was the property of these other men destroyed * A. Well, it's been injured; pretty well all destroyed ; no good. . Q. Do you belong to any secret societies ? A. Yes, sir. Q. What are they? A. I belong to the Masonic order and the Knights of Labor. Q. Do you think that the people who made you leave feared anything from your hands as to their lives or property at the time you left? A. I know they didn't ; no, sir. I lived there over 25 years with them, perfectly peaceable; never had no diffi- culty with them at all. Q. Why did they make you leave if they didn't fear anything? A. "I only think it was a political movement; they wanted to take all the offices there was in the county. Q. Were any men in this crowd that made you leave were any of them officials ;it that time holding office there ? A. Yes, sir ; the sheriff was an official ; Dr. Bingham was nothing but a Dr. and Dr. Barton was a Dr., and Martin was judge, and I think that's about all. Q. You say that you think that your exile from there was political ? A. Yes, sir. Q. What political party do you belong to ? A. Republican party. Q. When they ordered you out of the county, did they mention by what authority they did it ? A. No, sir; all the sheriff said to me, we find your name to one of those notices, and you must leave here to-day, don't, you'll be killed. And I asked him at that time why he wanted to drive me out of the county ; I said the court's in session here, and if 1 violated the law or wrote any notices, why don't you try me to-duy. He says, "Well, we are going to take the law in our hands to-day." That's what the sheriff said. In a few moments 1 went over home, and at home I saw them all go into the clerk's office, and I started to the clerk's office, and I taken another notion and went to the north part of the court-house, when I went back of the court-house, I went around that way, and they went to my house looking for me, and I just come right on around and went across the R. R. here into my field ; I stayed across the R. R. till I saw them march all these men ont, then I went in the field and they come on down there hunting me, and I stayed there that morning till 1 o'clock, and they rambled over my corn and cotton, everywhere, took it row by row, and stayed thi-re till 3 o'clock in the morning, and when the 3 o'clock train came along I pitched out for Memphis. Q. You say they claim your name was to one of those letters? A. Yes, sir ; and I asked Col. Smith that morning to let me see the letter ; he said he didn't have it, Mosby had it; and I asked him to let me see it, and he claimed that Berry had it, so I never did get to see it. Q. They never did show you the letter they claimed you wrote ? A. Never did. (Printed record, page 224.) FEATHEESTON VS. GATE. 87 David Furgeson, in speaking of the condition of the county prior to the 12th of July, 1888, testified : Q. Had the Republicans, while in authority, shown at any time a disposition to treat the white people, or the Democrats in this way, unfairly, as they believe that they are now being treated ? A. No, sir ; on the contrary, we always divided all offices with them. **###** Q. How many of the offices had the Republicans, prior to that time, accorded the Democrats? A. They had accorded the Democrats the sheriff, treasurer, and sur- veyor, county officers. Q. You had what is generally known in Arkansas as a fusion ticket ? A. Yes, sir. Q. Your vote was about five to one, was it? A. About six to one. Q. Had you seen fit to have exacted all the offices with all of the machinery in your hands at that time, would it have been possible for the white people or the Dem- ocrats to have had a single office in the county? A. It would have been impossible for them to have had a single office in the county ; if we had exacted all the offices, we could have elected every man in that county. Q. How long had this harmonious feeling, represented by the fusion ticket, existed between the Democrats and the Republicans of that county ? A. Ever since 1880. Q. For 8 years ? A. Yes, sir., Q. Then I would like for you to state what seemed to be the desire of the leaders of this mob so far as future arrangements for the offices were concerned ? A. Only desire of the mob was, and the only intention was, to get control of the county so they could occupy and fill the offices. Q. With what proportion of votes did they desire to make this control? A. About one to six. (Printed record, page '208-9.) George Hendley, in speaking of the demands of the negroes, testi- fied: Q. What do the negroes ask of the Democratic party in the way of elections ? A. Only ask for fair elections, and the enforcement of justice and law. (Printed record, page 188.) E. D. Sanders, in speaking of why the Bepublican officials were driven out, testified : Q. How, then, do yon account for the action of a part of those farmers during the past election and just prior to the election ? A. Well, sir it was simply politics at the ground of it, and there was a few colored men there who held office and all of them admitted made good officers; they told me so frequently ; well, they couldn't beat them and they determined to just put them out by force and take the office in opposition to the Republican party, and it is chiefly owing to the influence of un- scrupulous politicians determined to advance their personal interests to the disre- gard of the great body of the people. Q. Is this action of these few politicians indorsed by the better whii,e element of Crittenden County ? A. It is not; it is the result of a political ring determined to advance personal interests, regardless of the material benefit of the population. (Printed record, page 201.) Had the exiling been confined to persons indicted it would have indicated, as already said, a want of confidence in the courts. But it did not stop with exiling the indicted county officers. On the contrary it extended to county officers not indicted and to persons who were not county officers. In no instance was a Democrat driven out, and in every instance the exiled is found to have been either a member of " The Wheel," Union, or Knight of Labor, or Republican party. J. P. Broadenax, after speaking of the exiling of the county assessor, testified : J. P. Broadenax (col.), a witness on behalf of the contestant, being first duly sworn, testified as follows : Q. Where do you live? A. Jericho, Arkansas; Crittenden County. Q. How long have you lived there ? A. I've been there in that county about ten years. Q. What is your occupation ? A. Farming and merchandising, and I'm postmaster of the town. Q. How old are you ? A. 31 years of age; will be March 6th. 88 FEATHERSTON VS. CATE. Q. I want to know if you voted at the election in November ? A. I did, sir. Q. At what voting precinct? A. Bradley's. Q Did you near the result of the vote announced that evemug? A. No, sir; 1 did not. Q. There was an election held there regularly ? A. Yes, sir. Q. Did you know the judges of election? A. I did not, sir; I did, too, I think; some of them. Q. Do you know of an organized body of men in Crittenden County armed with Winchester rifles? A. I've seen some there with Winchester rifles. Q. Do you know anything of the operations of those men there last July? A. Some operations 1 know, sir. Q. State what you know about that. A. What I know, sir, I was on a train, on one coming down, and 1 seen about 30 or 40, probably more, at Marion, Arkansas. Q. How long did the train stop? A. Stopped, I reckon, tenor fifteen minutes; about that time. Q. State what you saw them do. A. I seen them bring Assessor Rooks to the train and put him on, and two or three more men from our place down there, and they crowded them together on the train and left; O. W. Mychem was one ; I don't remember just now who the others were, but there was several of them, Q. Mr. Rooks was the assessor of your county? A. Yes, sir. Q. Did he act as though he was leaving of his own accord on a pleasure trip ? A. No, sir; he did not; he left without his accord, I think. Q. JJid you hear them say anything to him ? A. I heard them tell him to get on and leave. Q. He didn't get on, did he ? A. Yes, sir. Q. Did you see him as he came down on the train ? A. He wasn't on the train, he got on at Marion. Q. You didn't come on to Memphis then ? A. Yes, sir; I did. Q. On the train with him ? A. Yes, sir. Q. Did you talk to him any as you came down ? A. I did. Q. What did he say? A. I asked him what that meant; he said he didn't know; they ordered him to leave and not return any more, and didn't give him time to get his clothes or nothing else. Q. How many were following him when you saw him? A. I suppose there was fifteen or twenty ; I reckon about that many ; I was a little excited myself ; seemed to be about that many, though. Q. He came on across the river with you ? A. Yes, sir. Q. Did he bring his family with him ? A. No, sir. Q. Do you know how long he was kept out of the county ? A. I do not, sir. Q. Did those gentlemen seem to be excited themselves ? A. Well, no, sir ; not very much ; they seemed to be mad. (Printed record, page 196.) J. P. Broadenax, in speaking of the Republican member of the legis- lature, testified: Q. The ex-member of the legislature there, Mr. Odom, your neighbor, did he live near you ? A. He lived about three miles from me. Q. Did you know him well ? A. Yes, sir. Q. Had there ever been any complaint in the courts against him ? A. None that I know of. Q. Was he a good business man considered so in the country ? A. He was, sir; seemed to be a nice man. He was prospering, and to my notion was on good terms with his white neighbors, Mr. Martin and others. He has made some properly, and represented the county in the legislature. I had heard no complaint made of him as a member of the legislature ; they said he made a good one, both white and colored. Q. Was he ordered out of the county? A. I don't know that he was. He told me himself he was ordered to leave, and some went oat to his house after him with Win- chesters. Q. Did he leave ? A. He did, sir. Q. Don't you kuow as a matter of fact he did come back there some time in the night? A. Yes, sir; I do. Q. Have you overheard of any charge preferred against him in court in any way? A. Well, I have since he went away. Q. None before that ? A. None that I know of, sir. Q. Had he ever been tried? A. Yes, sir. Q. Sent to the penitentiary ? A. No, sir ; he was acquitted, I heard. (Printed record, page 197.) J. W. Wymme, in speaking on this subject, testified : Q. Did they drive any private citizens out of the county except the officers? A. Well, yes, sir ; driven out several besides those was in office. FEATHERSTON VS. GATE. 89 Q. Did these men have families? A. Some of them did, sir. Q. Did they own property there? A. Yes, sir. (Printed record, page 204). E. Y. Logan, on this subject, testified : Q. Were there any colored people aside from these four officers exiled ? A. Oh, yes. Q. How many ? A. Some 12 or 15 were exiled. (Printed record, page 219). In determining the object of a conspiracy the law is that you may refer to the acts, words, and conduct of the conspirators to fathom and ascertain its existence and purpose, intent, etc. It is apparent from the evidence that a conspiracy existed and that, the conspirators had made up their minds to wrest the political control of Critteuden County from the Republicans who had held it for many years. This could not be done by obtaining a majority of the votes, for it contained a Republican majority of at least 2,000, and there was no dissension in the party. By examining the statutes of Arkansas in relation to elections, it will be found that the county judge, the county court clerk, and the sheriff are important factors in conducting elections. In the county judge is vested the appointment of all the judges of election. The clerk creates the county board of canvassers, and the sheriff, through his deputies, at every poll, is a power for good or evil they can faithfully execute the law and protect the ballot-box, or they can wickedly violate the law and debauch the suffrage. That the con- spirators seized upon and obtained these offices is not denied. It there- fore becomes pertinent to inquire, as a means of ascertaining the pur- pose of the conspiracy, whether the power of these offices was exer- cised in accordance with the law, or as a means to aid the conspiracy to place the county under the political control of about one-sixth of its legal voters. For this purpose we will now examine the laws of Arkansas relating to elections, and after quoting the law, try to ascertain whether it was complied with in good faith. HOW AND BY WHOM JUDGES ARE APPOINTED. SEC. 2654. The county court, at its last term held more than thirty days before any general election, shall appoint three discreet persons, in each tawnship, having the qualifications of electors, to act as judges of election within the township (Mans- field's Digest of Arkansas.) Under this provision the judges of election must be appointed at the July term of the county court. It was in July the Democrats exiled the Republican county judge, with others. JUDGES SHALL BE OF DIFFERENT POLITICAL PARTIES. SEC. 2757. The judges of election appointed by the county court, or chosen by the assembled electors, under the provisions of this act shall, if practicable, be from different political parties, so that each party may be represented, and they shall, in addition to the qualifications required by the constitution and this act, be able to read and write. (Mansfield's Digest of Arkansas.) At the time the Republican county judge was exiled, he had ap- pointed the judges of election, according to law, so that each political party was represented. After the exiling of the Republican judge and the office had been seized and appropriated by the Democrats, the Democratic county judge, who had come into possession of the office by reason of the con- spiracy, revoked these appointments, and appointed all of the judges of election from the Democratic party. 90 FEATHERSTON VS. GATE. Wash Deaver, in the course of his testimony, states this significant fact : Q. I want to know if prior to the time of your being exiled, and Judge Lewis, the county judge, being exiled, if he had appointed the judge of election for the ensuing election ? A. Yes, sir ; he had. Q. Had the notice of that tact been given to sheriff? A. Yes, sir; put in the sher- rifFs box in the clerk's office. Q. Had Judge Lewis complied with the law in Ark., by representing all political parties among the judges? A. Yes, sir. Q. Do you know whether or not those judges were afterwards changed? A. Yes, sir. Q. How do you know it-? A. I know it from the fact that Mr. Martin told me so, the judge who now holds the position, and I know that the men I know were ap- pointed dida't serve. Q. You say Judge Lewis appointed some Dem. at each voting place ? A. Yes, sir. Q. Complied with the law ? A. Yes, sir. Q. What is the general impression of the reason that prompted Judge Martin for making the changes in the judges of election ? A. To count the votes there was ap- pointed such men as he knew would count the vote for them. Q. Do you know in the whole county among your acquaintances of a single Rep. who served as judge of the election in Crittendeu County in the last State and Na- tional election ? A. I don't know a single one, except one or two precincts where they had to arrange the election themselves, wherein the absence of the regular judges, the voters had to select judges of their own. (Printed record, page 224.) All judges of election Democrats in the county. E. D. Sanders, in speaking of the political status of the judges of election in Crittenden County, testified : Q. I would like to ask whether the judges of election throughout the county, as a rule, Democrats or Republicans, or divided? A. They were all Democrats. Q. Does the law require in Arkansas that both political parties shall be repre- sented by judges of election in various elections ? A. It does. Q. What is your impression of the reason the law being violated, and almost all the judges iu the entire county being selected from the Democratic ranks ? A. Well, that was very plain to me. They could defraud the Republican party out of their votes. (Printed record, page 200.) It is not explained why it was that Judge Lewis could find two Ee- publicana in each township who were fit to be judges of election and Judge Martin could not find any. COUNTY COURT TO PROCURE BALLOT-BOXES. SEC. 2676. It shall be the duty of the county court to provide, at the expense of the county, a good and sufficient ballot-box, with lock and key, for the several town- ships or places of voting in their respective counties for the safe-keeping of the ballots, etc. (Mansfield's Digest of Arkansas.) SHERIFF TO DELIVER BALLOT-BOXES TO JUDGES. SEC. 2677. It shall be the duty of the sheriff in the several counties in this State to deliver to one of the judges of election in each township the ballot-boxes so provided by the county court. (Mansfield's Digest of Arkansas.) CLERK TO DELIVER BLANK POLL-BOOKS TO SHERIFF. SEC. 2663. It shall be the duty of the clerk of the county court of each county, at least twenty-five days before each general election and ten days before each special elec- tion, to make out and deliver to the sheriff of his county two blank poll-books for each township, properly laid off in columns, with proper captions and forms of oaths and certificates attached thereto. SHERIFF TO DELIVER POLL-BOOK TO THE JUDGES. SEC. 2666. It shall be the duty of the sheriff forthwith to deliver such books to the judges of election within their respective townships. (Mansfield's Digest of Ar-i kansas.) FEATHERSTON VS. GATE. 91 Instead of the county court procuring the ballot-boxes, as the law requires, the Democratic sheriff procured fraudulent ballot-boxes, one of which is produced in evidence in this case. Instead of delivering the poll-books, as required by law, for the No- vember election, he neglected to perform that duty, but left that matter to the wisdom and discretion of the Democratic sheriff. How far and how well he performed his work the testimony very ex- plicitly shows: E. P. James (white), a witness on behalf of the contestant, being first duly sworn, testified as follows : Direct examination : Q. How old are you? A. 47 years old the llth of this month. Q. You are a citizen of what county ? A. Shelby County. Q. State of Tennessee ? A. Yes, sir. Q. We want to know if you have ever seen a box similar to the box that is marked as Exhibit " A " in a previous deposition, and is now before you, and forms a part and parcel of the testimony in this case ? A. Yes, sir. - Q. Will you please state what you know with regard to that box, and your con- nection with it ? A. I know that we've made a great many boxes of that pattern that kind ; in fact, I think we made that one. Q. We want to know if you have ever made any that were shipped to Marion, Ar- kansas, in Crittenden County ? A. We made, I believe it was, 21 boxes and shipped to the sheriff of Crittenden County, W. F. Werner, at Marion, Ark. ; they were or- dered by Mr. Werner and charged to him, I know that. Q. Shipped on what day? A. August 21st, 1888, as seen on page 10y, ship book. Q. How many boxes ? A. 21. Q. Did you know anything of his official position at that time ? A. I didn't know, but I understood he was the sheriff of Crittenden County. Q. Will you please examine that box and see if 'tis exactly the same as those 21 that you shipped to Marion for Mr. Werner, the sheriff of Crittenden County. A. Well, I can't say that it's exactly the same, but it's almost a fac-simile. Q. Can you see wherein it differs materially? A. No, no; it don't differ at all, it's the same thing exactly ; we don't save patterns of them at all, but I see no difference ; that's the kind of box it was ; there might be a little difference in dimensions, but the same thing in every other way. Q. For what purpose were they ordered ? A. They were ordered, as I understood, for ballot-boxes. Q. Is the entry so made on your books ? A. Yes, sir ; 21 ballot-boxes. Q. To be shipped to what point ? A. They were shipped from the store; I couldn't say positively where they were shipped to; I know they were shipped to the sheriff of Crittenden County; they were charged on the books to W. F. Werner, Mound City, Arkansas. Q. How would you describe the boxes as made by you? A. Well, they are made as we would generally make ballot-boxes, with that extra cap on the slot that you put the ballots in ; I have no more idea what that's for than the man in the moon ; it was none of my business; I made them as I was ordered ; well, I have an idea, too, but at the same time I don't know. Q. With what firm are you connected in the city of Memphis? A. H. Wetter Manufacturing Company. Q. In what way ? A. As foreman of the shop. Q. As such you know the foregoing to be a correct statement of the facts ? A. Yes, sir ; as near as I ean get it. Q. Were all the boxes made by you furnished with this peculiar cap which accom- panies the box before you? A. All that 21 boxes made for the sheriff of Crittenden County had that device attached to them; I had no idea I'd get into this kind of u scrape, though, when I was making them. (Printed record, page 228-9.) Stephen James tells how the ballot-boxes returned a Democratic majority in a Republican county. Stephen James, in speaking of the September election, says : Q. Do you know whether the ballots were counted at the various precincts in your county according to law, or whether the boxes were carried to the county seat before being counted ? A. I can not, only from hearsay. Q. What have you heard v.ith regard to that ? A. At Bradley's precinct, when they got done voting, this man in Memphis remarked to the boys, " You know our orders." 92 FEATHERSTON VS. GATE. My half brother was acting there that day, was representing our ticket on the out- side, and when they got done voting this man remarked, " Well, boys, you know our orders," and my half brother remarked to him, "Aint you going to count them votes?" Said he, " No," and they taken the poll-boxes, two or three boys following them, and they carried it into Sam Cells' house about sundown. That was about in a mile of Marion. They never was counted at the precinct at all, and the way they kept them there, there was 220 votes cast, and the so-called Democratic party I think got eight, and when they was counted out in Marion the so-called Democratic party got 212, and the People's ticket got 8, and the man that distributed their tickets there told me he only distributed 8 tickets there that day. (Printed record, page 186.) Having secured the appointment of Democratic judges of election the con- spirators made an attempt to keep the Republicans from putting a county ticket in the- field. Jordan Yeates, in speaking of the effort on the part of the Democrats to prevent the Bepublicans from putting out a county ticket, testified : Q. Have you had any trouble over there in the last few months, growing out of politics? A. Yes, sir; we had last year, from last July up until you may say rill now, we've had great trouble, sir; great trouble. Q. Go on and state what you know about that trouble. A. Well, they went to work, of course the Democrats did, and drive the officers, Dan Louis, Dave Furgiison; that is, their intention were to get all the Republican leaders, colored, out of the county ; that was their object, and they went to work and drive Dan Lonis, Dave Ferguson, and a good many others, I couldn't call their names, out. Q. What excuse did they give for that? A. Well, the excuse they told me for it, was they had written a notice to them giving them so many days to get out the county in, certain men, and they just reversed it by making them leave before that time, in the place of them having to leave themselves. Q. Have these same men since that time been directly charged with writing these anonymous letters? A. Don't know, sir, whether they have or not; don't think they have. Q. After that trouble commenced, do you know of any threats that were made as to what would be done against prominent members of your party in your county ? A. Oh, yes. sir ; they were making threatenings all the time. Directly after that riot taking place, I remember they drive those men off the day that the county central committee called the convention together that is, on Saturday were the day they were to be called they drive them off; on Thursday I met there myself with a few more ; Mr. Werner said to me, "You better not try to hold a convention here to-day, there's too much excitement; if you undertake it you will be hurt ; we ain't going to have but one ticket. " Q. What ticket was that? A. That was the Democratic ticket, and I answered him by saying we were going to hold a convention somewhere in the county to-day ; he said yon can't hold it here, you better not try to hold any here. Q. Was Mr. Werner an officer in the county at that time ? A. He was the sheriff then at the time ; then, of course, after I talked TO him I went over to Major Critteu- den, told him what Mr. Werner had said to me, then major advised me to go and hold it ; that being the day set for to hold the convention for the county central commit- tee called, to go and hold it somewhere and it would be legal. So I went up the road and got what I could together, and I didn't call the convention that time ; so afterwards Mr. Werner finally agreed we could hold the convention in the court-house, but he told me that they had made one ticket, and there was going to be but that one ticket elected ; that if it was elected it wouldn't do any good ; that they shouldn't hold the position, and went on to make offers what he'd rather do, and so on; said he was speaking for the others ; offered if I wouldn't hold the convention, fRO to each delegate ; that we'd just decide on what they had done and take their men that they had appointed. I didn't agree to that, so Mr. Gus Fogalman sent for me on Satur- day morning to come over there to the post-office ; I went over to the post-office, and he said to me, " I want to see you to see if we can't make some arrangement to stop you all from making a ticket ; I believe it would be cheaper for us for you all to do that, not to make no ticket, because if you make a l icket, if you effect it, it ain't going to do you any good, for the nominations we have made are going to be the officers ; and," "he said, "now, what will you charge to break up the convention? You can break it up even if the intimidation we offer of $50 a piece to each delegate ; if they don't do it, why, you being chairman, you get up there, go to work, and don't heed nothing, and you'll get it done that way, if you can't do it any other way." Oh, I, of course, didn't tell him what I thought about it, because I knew I was about like the FEATHERSTON VS. CATE. 93 rest ; I was there ainougst them Winchesters, though I told him couldn't do any- There ,$250 if you'll doit," Q. That was Mr. Werner? A. No, sir; that was Fogaltnan ; he was represent- ing the crowd ; so me and him didn't agree on it, and Mr. Werner then, after that, alter we made the nomination that day, then I met him at Crawfordsville in a few days afterwards, and he said that he had been instructed that we were going to re- call to reconsider the matter, and he said if we did do it, it would be all right, and if we didn't they were going to have the office any how, no matter how the election went ; no matter how many or how little they got, they were going to hold the office, and if we would take their otters they would give us justice of the peace and con- stable, that was their offer. Really to go to work and track Mr. Werner's conversa- tion with mo from that time up, I couldn't do it because he courted me from the time to the day of the election, but making those violent threats all the time ; that we might carry the election as we pleased, but they were going to have it. Q. He claimed to represent the Democratic vote and you the other? A. Yes, sir. (Printed record, page 193.) After the ticket was nominated the Democrats attempt to make the candidates decline. J. H. Williams (white), a witness on behalf of the contestant, being first duly sworn, testified as follows : Q. What is your name? A. J. H. Williams. Q. Where do you live ? A. Crittenden County. Q. What State? A. Arkansas. Q. How old are you ? A. 47. Q. How long have you lived in Arkansas? A. 21 years 5th day of this month. Q. Have you ever held any official position there ? A. I have. Q. What position? A. Squire for six years, and judge of the county and probate court two years. Q. What ticket were you elected on then ? A. Democratic. Q. What have your politics been during the time you've been in Arkansas ? A. Democratic. Q. How long have you been farming in Arkansas ? A. 21 years. Q. You own your home there ? A. I do ; at least my wife does. Q. Are you engaged in any other business beside farming ? A. I am, sir. Q. What is it ? A. Merchandising. Q. At what point ? A. Crawfordsville and Jericho. Q. How long have yon been merchandizing at both these points? A. Well, I com- menced in 1881 at Crawfordsville, and last spring at Jericho. Q. About how many bales of cotton do you handle per year? A. About 50 or 75 ; I don't buy cotton ; we do a cash business ; we don't propose to handle cotton. Q. Were you a candidate for a position in the last election ? A. I was. Q. On the People's ticket ? A. Yes ; I was. Q. Do you think you were elected ? A. I was. Q. By what vote? A. 1,200 or 1,500 majority. Q. Did you get the office ? A. I did not. Q. Why not? A. Well, I ain't been able to find out; I just seed I couldn't get there ; they said they was elected, and I couldn't get there ; I don't know why. Q. Have they ever denied that you received the plurality of votes ? A. O*h, yes ; they deny that all the time ; they say they are elected, but I say they are not. Q. What makes you think you were elected ? A. Well, sir, 1 was on what they call the Republican ticket, and the majority there is generally between 1,200 and 1,500 ; as much as two thousand; we haven't over 400 white people in the county, and the black man never votes anv other ticket, unless he's pursuaded or paid, and this time neither was done, that is my belief. The black people come to me and said all I ask of you is to put your name to this ticket, we want a Democrat on this ticket, and if you will just say you will run we'll elect you ; you needn't spend a cent. And I told them I'd servo them if they'd elect me ; I didn't tell them I'd be a Republican; I ain't a Republican, and never will be, I don't think. Q. Were the white men that were on that ticket asked to become Republicans when they were put on the ticket? A. 1'hey were not ; the black people asked to have the best Democrats in the county on the ticket and they would vote for them ; they couldn't get enough of them, and put a black man on it. I rode three weeks on my horse, and told ^hose people that was what they ought to do, and 1)4 FEATHERSTON VS. GATE. they wouldn't do it ; I said you can go to hell ; John Williams will do as he pleases. Q. Was the disposition of the colored people to override the white people ? A. It was not ; they wanted nothing but simple quietude in every shape. Q. Did you accept this position in the interest of the government in Crittenden County for a special desire to be judge of the county ? A. I done it for the county's interest; not that I cared a cent for the judge's office; I wouldn't give thank you for it to-day. Q. Does your private business require most of your time at home ? A. Yes, sir. Q. You say you didn't want to bo nominated as judge ? A. No, sir ; the second time I wouldn't have it. I read a piece in the paper where a man had been in office 40 years, and the first hundred dollars be borrowed he never had paid it back ; I said, John Williams, you go home to your wife and children. Q. You didn't want the office of judge? A. I did not, sir; but when I found out that I had been nominated by the colored element on the ticket I determined to serve if I was elected, not on account of private gain to myself, but for the best interests of the people of the community. Q. You had known of the operation of the Winchester rifle crowd at the beginning of this matter, had you ? A. I had, sir. Q. Did you say anything to them with regard to what would be the conse- quence of their way of proceeding ? 'A. I said this: I said, "What you've done, you've done well enough, but don't carry it into politics." That's what I said to Dr. Bingham. Q. Then you were looking after your own interest, and the interest of the people of the county, in a business way, when you agreed to enter this contest, and admit to all this political excitement ? A. I was, sir ; and furthermore I kept trouble down otherwise. I told them it wouldn't do. I wanted everything quiet, and told the white people and the black people that wo wanted quietude, and wanted to live to- gether. Q. Is it your opinion, if your advice had been followed, you would have had any serious trouble in Crittenden County at this time at all ? A. We'd have had the most prosperous country in the world, sir. They see it as well as I do now. Q. In bringing on this trouble do you consider the mass of the colored people of that county to blame, or what is known as the Winchester element ? A. The mass of the colored people wasn't to blame. E. D. Sanders, after telling of the driving away of the county officials by Democrats, testified : After that they held a convention, these same men, and made a ticket which they called a Democratic ticket ; the colored people then went to make their ticket, and they forbid them to make a ticket; well, they saw they couldn't make a colored ticket, and I don't tnink they had any inclination to do it, and they tried very hard to get up enough white men, old fanners in there, to till the four important offices, and they worked on this for over a week ; they couldn't do it ; they came to me and asked me if I would accept the nomination for sheriff, and I refused ; I told them I never held any office, I didn't wish any; well, they then told me that they didn't see how they could keep down a fuss unless we would do it ; unless I would get them out ; I went out then and consulted with some white men about it, and they insisted that I should do it, and I told them then for the good of the county I would run ; well, they met then and nominated me, and there was a delegation came out from Marion and asked me to withdraw ; I asked them on what ground. Q. Please state the names of that delegation. A. Dr. Bingham, Major Crittenden, L. P. Berry, and Colonel Smith, John R. Chase. Q. Were they generally considered as the leaders of the Democratic party in that movement ? A. Yes, sir. Q. What reason did they give you for asking you to withdraw from a nomination already tendered you ? A. Didn't give any ; I asked them to give me a reason, and they never did do it. Well, then, I proposed to them if they would do away with the ticket that they made and call a convention of the white people in the county generally and make a ticket that I would resign, I wouldn't run, and they said they couldn't do it ; well, I still made another proposition ; that if they would withdraw two men they had on the ticket and nominate two more that I would withdraw; said they couldn't do it ; well, then 1 told them if they beat me they would beat me at the ballot-box, and I ran the race through and suppose I got about six votes to their one ; I'm pretty certain of it, because we had outside clerks that kept every name down, but they counted us out, at least their returns the secretary of the State counted us out. Q. Yon say that your impression is, from the tally sheets kept by outside clerks friendly to your side of this cause, that you are satisfied that your ticket was elected by five or six to one? A. Yes; our tally sheet showed up 2,500 votes. FEATHEESTON VS. GATE. 95 Q. Now what has been the proportion of the Democratic and the Republican vote in that county? A. About one-sixth Democrats. Q. Is it not a fact that a considerable number of men who had never before voted any other ticket but the Democratic ticket voted for your ticket ? A. '1 hey certainly did ; I know that to be a positive fact. (Printed record, page 199.) Failing to get the Republican ticket out of the way, they then commenced to threaten that they would carry the election at all hazards. E. D. Sanders, in speaking of threats made prior to September elec- tion, testified: Q. During the time just prior to the election did you hear any direct threats, or was there any remarks made as to the comparative value of a Winchester rille and money in carrying elections in Arkansas? A. I did. Q. Please state what they were ? A. I heard, on one or two occasions, men there say that Winchester rifles were cheaper than to buy votes; and then one mau told me to my face it didn't matter how the election went, they were going to have the offices. A. Who was it that made that statement? A. This was William Willerford (Printed record, page 199.) Jordan Yeates, in speaking of the threats made to carry the Septem- ber election, testified : Q. And he told you that he was going to carry that election and get those officers, no matter how the vote went? A. That's what he said, yes, sir ; he certainly told me that, I reckon, more than five or six different times; he made those threats to me five or six different times ; the last time was at West Memphis, and he said he wouldn't serve as sheriff with no more colored officers. # * # * * They made threats that they were going to carry the election, and if they had to carry it with their Winchesters; and again, now this was Mr. Jnl Harden made that threat ; that he thought it was cheaper to take the election with the Winchesters than it was to take it with money. I heard him make that, and I remember exactly where he was sitting when he said so; that it was cheaper for them to carry it with their Winchesters than with money; that was the evening after our convention. Q. I want to know if some days prior to the election were they making demonstra- tions all around over the county with those guns marching around with them? A. Oh, yes, sir; they was. (Printed record, page 193.) S. K. Bushing, on this subject, testified : Q. Did you ever hear any threats made in regard to Republican voters voting the Republican ticket ? A. No more than the Winchester rifle crowd said there shouldn't no colored man hold office in that county; that's what they said; shouldn't no col- ored man hold office in that county. Q. Have you heard any threats in regard to Republicans holding office in that county ? A. None of them shouldn't hold no office there. Q. Who did you hear referred to on this occasion ? A. These parties that we nomi- nated on our ticket as Republicans ; Mr. James, Mr. Boon, Mr. John Williams, Jim Thompson, and Augustus. (Printed record, page 207.) F. L. Fleming, in speaking of the ticket nominated as a fusion ticket, testified: Q. What do you mean by a fusion ticket T A. By giving the Democrats and Re- publicans part of the offices. Our method over there was to give the sheriff and treasurer to the Democrats, elect the clerk Republican, and judge Republican. Those were the four prominent positions in the county. The others were divided among the white and colored. The leading colored men of that county advocated that, and that was the kind of ticket that was elected in 1886, under our advice, and had been for several years. Q. Did the leading colored Republicans over there, in their advice to their con- stituents to live in peace and amity with the whi te people, or not ? A. Yes, sir ; they did ; I ran a paper over there, and that was my advice the last issue I made over there on the 7th day of July, 1888. There was one paragraph I remember well. I asked the colored people to divide the positions bdweon the white and colored; it wouldn't be a safe policy to advocate an entire Republican ticket or an entire black ticket. (Print- ed record, page 196.) 96 FEATHERSTON VS. CATE. J. P. Broadenax, iii speaking of what class of persons the Democrats were dissatisfied with, swears : Q. Against whom did the armed crowd seem to be operating chiefly T A. Against the colored, sir. Q. That was before your county ticket was made, was it ? A. Yes, sir. Q. You afterwards made up a county ticket upon which there was four or five re- sponsible white men in the county, did you not T A. Yes, sir. Q. That was known as what ticket? A. The Republican ticket, sir. Q. Did you hear them say anything, or were any threats made as to that ticket or those that were on it, that you know of ? A. Well, I've heard some threats made, but they were not made directly to me. Q. Have they seemed any kinder or more pleasant toward those white men than they have toward the colored men since that time of this opposition, seemed any kinder toward the white men that were on your ticket than they were to the colored men of the county, or have they treated them all about alike ? A. They treated them all about alike, seemed like to me as far as I've seen, the white men that was on the ticket and the colored people seemed to be treated just about alike. (Printed record, page 197.) The Winchester rifle crowd. William Eoyster, in speaking of who belonged to the Winchester rifle crowd, testified : Q. Do you know Mr. Berry, the lawyer of Mr. Cate in this investigation ? A. Yes, sir. Q. Do you know whether he was a member of this Winchester crowd or not? A. Oh; yes, sir; he drilled in front of my door every night, and up-stairs in the court- house ; he had the company drilling -it himself; he was captain of the company in Marion ; he had one company and Olie Tuck, the deputy clerk, had one. Q. Do you know whether Mr. Kelly, the clerk of the county court, was a member of this organization or not ? A. He was then, because he guarded the jail every night to keep any troops from getting in the court-house ; he kept guard while the others was out scouting. Q. Were they officers of the county before this Winchester organization or after- wards ? A. Mr. Vance was clerk then when Kelley had the Winchesters at the court- house. Q. Were these county officials elected in the election in which these Winchester rifles to which you refer intimidated the voters from voting? A. Yes, sir. Q. They were elected to their present position at that election, were they ? A. Yes, sir. Q. So they had a personal interest, then, in this terrorizing and bulldozing ? A. Yes, sir; that morning on the 12th of July I was sitting over there in front of my house on the grocery porch, and they was down there by Mr. Chase's caucusing, and I heard Mr. Crittenden over at his office tell them they was a God damn long tinie doing what they promised, and they marched on to the court-house and they went off to the clerk's office and marched the men out and stood there fifteen or twenty min- utes and then carried them on the north side of the court-house. Q. Were any of the men exiled from the county by that body of men except your- self? A. Oh, yes, sir; yes, sir; I reckon there was about fifteen or twenty of us altogether. Q. Were they farmers and men of the county who owned property there? A. Yes, sir, pretty well; all of them owned property, farmers and officers. (Printed record, page 190.) J. W. Wyinme, in speaking of the same subject, testified : Q. You speak of a Winchester-rifle crowd ; do you know whether that party of men claim to be Democrats or Republicans? A. Democrats. Q. Have you ever heard directly from them the object of their organization? A. Never has, sir ; only seen them drilling drilling the other day. Q. Do you know of any of the officials of Crittendeu County who are members of that organization f A. Well, yes, sir ; I do. Q. Who are they ? A. The officials are : Let me see, there is Neeley Raspberry. Q. What position does he hold ? A. Coroner. Q. Who else? A. Sheriff Warner belongs to it ; he's the captain, I believe, or drill- master or something. Q. Anybody else ? A. Bob Gilliard. Q. What position? A. I don't know what position, he holds. (Printed record, page 204.) FEATHERSTON VS. GATE. 97 William Eoyster, in speaking of the political status of the county officers of Crittenclen County, testified : Q. You say Mr. Forest represented an organized crowd of men armed with Win- chester rifles. A. Yes, SIT. Q. Do yon know who the members of that crowd were ? A. I knew some of them. Q. Were any of the county officials members? A. Yes, sir; Mr. Warner and Ju- lian Harden. I Q. What position did Mr. Warner hold? A. Mr. Warner, sheriff; Julian Harden, deputy sheriff; Neeley Raspberry, coroner ; and Squire Mosbey, justice of the peace ; and Squire Martin, county judge. (Printed record, page 190.) It appears from the testimony of J. W. Wyinme that the Winchester rifles were used up to the November election. J. W. Wymme (col'd), a witness on behalf of the contestant, being first duly sworn, deposed as follows : Q. What is your name ? A. J. W. Wymme. Q. Where do you live ? A. Irf Crittenden County, Crawfordsville, State of Arkan- sas. Q. How long have you lived there? A. Near twenty-three years. Q. How old are you ? A. 45 years old, going on 46. Q. What is your business ? A. Minister of the gospel. Q. Where were you living last July? A. At Crawfordsville. Q. Do you still live there? A. Yes, sir. Q. You say you were living at Crawfordsville last July ? A. Yes, sir. Q. Do you know whether there was a political disturbance ia that place at that time ? A. There were. Q. What was it ? A. Well, several of our officers were put o.ut of the country, out of the State. Q. Yon say they were put out of the country ; how were they put out ? A. By guns Winchesters these Winchester rifles. Q. Who had possession of those arms? A. There were so many that had posses- sion of them I couldn't tell you all. Q. Do you know any reason that was given for exiling those men to whom you re- fer ? A. I do not ; only that they said they were dabbling too much in politics. Q. What was the force of the Winchester-rifle crowd ? A. I don't know ; I never did know how many there were. Q. How many did you ever see ? A. I've seen, I reckon. 18 or 20. Q. How long did that state of affairs continue there ? A. Well, they continued a od \vhile. After they put those men everything become calm for a while, but they ver did stop toting the guns, rifles, and one thing and another. Q. Are they stiM carrying them ? A. Yes, sir; the day of the election, the evening fter the election was over closed, I met 18 or 20 of them, all in a group, going down Marion with their rifles. Q. What election was that ? A. The last election we had. Q. The election for Mr. Harrison and Mr. Feat herston? A. Yes, sir. Q. What effect did this state of terrorism which yon refer to have upon the people of the county ? A. Well, it had a great effect upon them, sir ; I think it scared up everybody; they were afraid to do anything ; afraid to even claim for their rights. The contestant in his notice of contest (par. XIX) charges That in the county of Crittenden, in said district, there are over twenty-nine hun- ed (2,900) legal voters; that not more than five hundred (500) of that number are imocrats and partisans of yours; the other twenty-four hundred (2,400) were and are friends and partisans of myself; that the county judge of said county, who is a partisan of yours, well knowing that you did not have to exceed five hundred (500) supporters in said county and that I had more than twenty-four hundred (2,400), in your interest and against mine, in violation of law appointed all of the judges of election from the political party to which you and he belong, in open and direct violation of the statute in such case made and provided, and for the purpose of pro- ducing the result herein set forth in relation to the townships of Belcher, Edmond- son, Bradley, Walnut Grove, Riceville, Mound City, Scanlan, Furgeson, Crawfords- ville, and Cat Island ; that the sheriff of said county, who is a partisan of yours, with the intent and purpose of advancing your interests in said county and injuring mine, and with the view of preventing the holding of an election in said county on said 6th day of November, 1888, willfully failed and neglected to furnish poll-books to the judges of election in the various precincts in said county, as by law ho is required to do, and but for the fact that I c used poll-books to be furnished to said judges of election no election would have been held in said county; that H. Mis. 137 7 98 FEATHERSTON VS. CATE. the county clerk of said county, who is a partisan of yours, for the purpose of aid- ing you and injuring me, through mistake or fraud failed to certify six hundred and twenty-one (6*21) votes to the secretary of state that I received in the precincts or townships of Belcher, Edmonson, Bradley, Walnut Grove, Riceville, and Furgeson, although the judges of election had made proper return thereof to him ; that in the precincts last named you received only sixty-four (04) votes; that the judges of election in the precincts of Crawfordsville, Cat Island, and Walnut Grove, and all 6f wliDiu are partisans of yours and creatures of the county judge, the sheriff and county clerk or said county, through mistake or fraud falsified, the returns from said last-mentioned precincts, so that they were made to appear I received four hundred and six (40(5) votes, whereas I received six hundred and seventy-two (672) votes in said precincts ; that said falsified returns from said last-mentioned precincts show you received two hundred and eight ('203) votes, whereas you received but one hun- dred and fifteen (115). I claim the right to show the lawlessness of your partisans in said county of Crittenden from the highest to the lowest, and any connection you may have had with them, and shall claim the right to show that their title to said offices of county judge, sheriff, and county clerk was bottomed on fraud of the char- acter herein stated, and of ballot-box stuffing, and that said judges were selected because of their tact and talent in the business to which they were appointed, not only at the election held November 6th, 1888, but in that of September, 1888. (Printed record, 6-7.) The lawlessness of the partisans of the contestee is fully shown ; that the title to the office of the county judge, who appointed the judges of election of and from the Democratic party, was based on fraud and vio- lence; that the county clerk, whose duty it was to certify the Novem- ber vote to the secretary of state, obtained his office by the same and like means, and that the judges of election were chosen as agencies by and through which the frauds were to be committed and were com- mitted does not admit of question, or they would not have used the fraudulent ballot-box. We have already said the evidence fully establishes the conspiracy. The contestant charges that the county clerk failed to certify to the secretary of state the votes cast for him in seven townships at which elections were held in Crittenden County. The law of Arkansas in relation to counting the vote is as follows: WHEN AND BY WHOM THE VOTE SHALL BE COUNTED. SEC. 2695. On the fifth day after the election or sooner if all the returns have been received, the clerk of the county court shall take to his assistance two justices of the peace of the county, if they can conveniently be had, and if not then two household- ers having the qua.' ifications of electors, and shall proceed to open and compare the several election returns which have been made to his office and make abstracts of the votes given for the several candidates for each office on sep arate sheets of paper. (Mansfield's Digest of Arkansas.) VOTES MUST BE COUNTED REGARDLESS OF ANY INFORMALITY. SEC. 2700. The clerks of the county courts of the several counties of this State when they shall call in two justices of the peace or householders to assist them in compar- ing the poll-books of the several townships shall proceed to add and count all the votes for the several persons therein voted for regardless of any informality whatever. (Mansfield's Digest of Arkansas.) SEC. 2699. Informality in the certificate of the judges and clerks at any election held in any township shall not be good cause for rejecting the poll-books of said township. (Mansfield's Digest of Arkansas.) PENALTY FOR FAILURE TO COUNT THE VOTE. SEC. 2701. Should any clerk of the county court and the two accompanying jus- tices, or householders, or either of them under any circumstances reject or refuse to count the vote on any poll-book of any election held by the people, such rejection or refusal by such clerk, etc., or either of them shall be deemed a high misdemeanor, etc. (Mansfield's Digest of Arkansas. ) FEATHERSTON VS. CATE. In Patton vs. Coates, 41 Arkansas. These sections being under construction, the supreme court of Arkansas said : " The board of canvassers of an election have no judicial discretion whatever. They are merely for the purpose of a fair and correct computation of the votes, under public surveillance, presented to them by the clerk." In view of these sections of the Arkansas election law, and the con- struction thereof by the highest court of the State, the failure of the clerk to certify the returns of the seven townships alluded to is simply a willful disregard of duty, but no greater than those indulged in by the county judge and sheriff. For the purpose of procuring the evidence in relation to the vote of the seven townships, W. B. Eldridge, one of the attorneys of the con- testant, went to the county seat of Crittenden County and obtained a certificate showing the returns were on file in [his?] office, and in speak- ing of his mission says: Q. Did you go over to Marion a short time ago, and for what purpose ? A. I went theie for Mr. Featberston, to procure ths election returns for Critteudeu County from certain townships that had not been certified up to the secretary of state from Crit- tenden County. Q. Do you make this abstract Exhibit A to your deposition? A. Yes. [Exhibit A to deposition of W. U. Eldridge.] Abstract of poll-books of election held on the 6th day of November, 1888, for Bepreaentative in, Congress, for the 2nd Congressional district of the State of Arkansas, in Crittenden County, at the J allowing precincts or voting places, and not certified to the secretary of the stale on account of irregularities in the poll-books appearing therein, that the judges and clerks of said election were not sworn as the law dirtcts. Total vote. W. H. Gate. L. P. Feather- ston. 147 14 133 189 49 137 208 4 195 90 15 75 45 45 45 7 35 64 61 2 CLERK'S CERTIFICATE TO TRANSCRIPT. STATE OF ARKANSAS, County of Crittenden : I, Sam'l Keel, clerk of the circuit court, within and for the county and State afore- id, do hereby certify that the annexed and foregoing pages contain a true and com- lete transcript of the above as therein set forth, and as the bame appears of record, my office at Marion, Critteuden County, Arkansas. Witness my hand and official seal this 21st day of February, 1889. LSEAL.] SAM'L KEKL, Clerk. , D. C. Q. I ee from the face of the clerk's certificate that there is an assertion to the effect that the returns were not sworn to as the law directs. Please state the circum- stances under which these words were put upon tho face the certificate. A. It was dictated by Mr. Berry, the lawyer of Mr. Cate in this contest, to the clerk, who wrote it word for word at his dictation, and only gave me this abstract after mature consul- tation with Mr. Gate's lawyer. (Printed Record, page 227-8.) In six of the townships named, Mound City, Walnut Grove, Bradley, Edinondson, Kiceville, and Gilmore, the aggregate vote was as follows : Featherston 620 Cate . 89 Majority for Featherston 531 100 FEATHERSTON VS. GATE. We think this vote is sufficiently proven, and ought to be allowed the contestant. It is conceded that the majority, on the face of the returns, for the contestee is 1,342. Deduct the 531 majority for Featherstou in the six townships. This leaves Gate's majority 811. Scanlan Township. Seaulau Township is one of the townships included in the clerk's cer- tificate of votes not certified to the secretary of State, and the vole in which we have not included in contestant's vote in our foregoing com- putation. The testimony in relation to that township is as follows: John Johnson (col.), a witness on behalf of the contestant, being first duly sworn, deposes as follows : Q. What is your name ? A. John Johnson. Q. Where do you live? A. In Arkansas, Critteudeii County. Q. How old are you ? A. Going on forty-six. Q. What is your business ? A. Farming. Q. How long have you lived in Arkansas ? A. 17 years. Q. What is your voting precinct ? A. Scanlan. Q. Were you there attho last general election ? A. Yes, sir. Q. What's about the usual vote of that precinct? A. Well, from 100 to 12 ' or 4. Q. How many of those are Republicans? A. Woll, about 110 or 112. Q. How many are Democrats? A. About 8 or 9. Q. You way you were at the Presidential election ? A. Yes, sir; I'm at all of them, but then I was there anyhow, at that one expressly. Q. What time did the polls open ? A. Well, they said they was to open in the morning at 9 o'clock, and close.at 4. I couldn't tell you the real hour they did open ; they may have opened before 9 or after 9, that, was the time set to open, at 9 o'clock. Q. Was there some people come out to the polls that day that didn't vote ? A. They wanted to vote, but was afraid. Q. How many people voted there ? A. I counted up 73, and they was voting on ; I didn't go away, but then I went off down the river a little piece and sot around, but everybody that talked to me after I come up said they was voting Republican ; there wasn't but two colored men voted the Democratic ticket, and one of them wouldn't have done it if they hadn't made him do it ; he was a kind of ignorant sort of person, and they gave him the ticket and he went on and voted it. Q. How many men did you see vote that ticket that day at the polls ? A. About 73, I think 73; I counted them particularly. Q. Did you have the tickets in your hand ? A. Yes, sir ; I had about 125 or 130 of them ir>0, and 1 reckon I give out about 30 or 40 of them that day, and saw 73 of them voted, aud stood and looked at them, and saw pretty near every man that voted that day. I read the ticket and knew I was voting for Harrison. Q. Who did you think you was voting for Congressman ? A. I just voted the straight ticket. Q. Then this is exactly the ticket you voted ? A. Yes, sir. Q. And this is exactly the ticket that you saw voted by 73 other men? A. Yes, sir. Q. And you want to file that with your testimony as the ticket that you did vote ? A. Yes, sir ; marked Exhibit "A." Q. Did 1 he Republicans in your township vote more solidly together than usual ? A. Yes, sir; they voted solider this election than ever I known ; look like the people had more privilege to vote. Q. You mean they were more in earnest about it? A. More in earnest, I should have said about it. Q. What was the cause of their earnestness about voting at this time more than any other time? A. I don't know, sir; they just thought it was a Republican election, and a great many of them was against Mr. Cleveland, and they all come together and held a meeting, and they all voted solid one way. Q. Do you know that the returns as sent up to the clerk's office in your county only gave the Republican ticket count there two votes and the Democratic ticket 59 votes? A. No, sir; I didn't hear anything about that; I thought that the Repub- licans had all that they put in, and everybody there, I reckon, thought that same thing. Q. That is what they have returned, what do you think about that ? A. Well, I FEATHEKSTON VS. GATE. 101 just think they done wrong ; think they done something they had uo business; I think there was a fraud in it. Any man of common sense would know as many men around the polls voting 75 or 80 or 100 men and couldn't get but two Republican tickets out of them. I'd a voted better than that if4/hey'd had a gun on me. Q. If the people in your township were voted properly, how many of them would tnru out and swear to have voted that same ticket that you make an exhibit of, there? A. 45 or 40 or 45. Q. There is how many, if they were properly protected; you issued 73 yourself, you say? A. I didn't issue that many, but I saw that many polled from other hands that was handed around, and counted them every one. Q. If they were properly protected, are you satisfied those 73 men would turn out and testify 'that they did vote that ticket? A. Yes, sir; they would; they'd come right here to-day and tell you any where. Q. llow long have you been voting at that precinct? A. Ten years. Q. And you say the Republican vote there, in a fair election, is about how many ? A. About 112 or IK!. Q. And how much you say the Democratic vote is ? A. About 8 or 9, some elec- tions, in the county elections there's some 15 or 20 or 25 Democrats, 'cause they got darkies mixed in with them. Q. Did all of the Republicans that voted vote the Republican ticket at this elec- tion ? A. Yes, sir. Q. Was the usual number of Democrats at the polls? A. Yes, sir; most all the white meu that was there was at the polls; the biggest part of them. Q. Can you furnish me the names, furnish me a list of these 73 voters that you speak of as having voted the Republican ticket? A. Yes, sir ; I can do it; I think I can give every man's name. And further this deponent sayeth not. (Printed record, pages 216 217.) Scanlan. Willis McGee (col.), a witness on behalf of the contestant, being first duly sworn, testified as follows : (Tin ballot- box made Exhibit A to this deposition.) Q. What is your name ? A. Willis McGee. Q. Where do you live? A. Scanlan's. Q. What county? A. Crittenden. Q. What State ? A. State of Arkansas. Q. How old are you ? A. I am about 39 or 40 years old. Q. What is your business ? A. Farming. Q. How long have you lived there ? A. I went there in 1878, been there ever since. (Ballot-box made Exhibit A to the deposition.) Q. This tin box, made Exhibit A to your deposition, that I now have in my hand here, did yon ever see a box like that in the State of Arkansas ? A. I did, sir. Q. When? A. Time the election was going on. Q. For what purpose, if any, was the box then used? A. To put votes in. Q. What election is that that you refer to ? A. The Presidential election. It was d at both the elections ; at the Presidential election and State and county elec- on. Q. Are you absolutely certain it was a box of that precise description that you w at those two elections ? A. Yes, sir. Q. Were the judges of that election to which you refer, at which this box or one st like it was used were the judges of that election Democrats or Republicans? . Democrats. Q. What is the usual vote in your township ? A. About 125. Q. How many Democrats? A. About from 25 to 30. Q. The usual Democratic vote there is what? A. About 25 or 30. Q. What is the usual Republican vote of that township ? A. From 100 to 125. Q. Do you know at that election to which yon refer, do you know how many Republican votes were cast at that election ? A. No, sir ; I do not know exactly how many was cast. Q. How many did you see cast? A. I seen about nine or ten. Q. You are certain you saw at least nine or ten ? A. Yes, sir ; I'm certain of that. Q. Do you know the name of those parties to whom you refer that voted the Repub- lican ticket at the national election ? A. Yes. sir. Q. Please make a list of those names and file it as Exhibit B to your deposi- tion. A. I do so. Q. Did you see those men vote that ticket ? A. I did, sir. Q. You know it was a Republican ticket? A. Yes, sir. 102 FEATHERSTON VS. GATE. Q. Were a good many men out at the polls that day Republicans? A. Right smart, and it was raining, and a heap didn't come. Q. Was a good many there didn't vote? A. Yes, sir. Q. What was the reason ? A. The reason was they had a great time in the time of the county election, and the boys said it wasn't no use in voting ; that they do just as they choose, and they didn't have no show there; they said they all voted Repub- lican before solid out through, and they beat them at Scanlan'sand every body voted Republican at Scanlan's, and they beat them. Q. Were they counted ? A. Never were counted ; that was the question. Q. Then I want you to state the reason they didn't take any more interest, and didn't vote? A. Because they said they all voted Republicans at the election, and when the outcry come they said everybody had voted Democratic tickets, and they said it wasn't no use for them to go there to vote; that was the reason. Q. Are you satisfied that other people voted the Republican ticket besides those yon saw vote it? A. Yes, sir; they said so, but I knew these I did see vote it. Q. Do you knowthat they returned for that township only two Republican votes? A. No, sir. Q. You iust stated that the usual Republican vote down there was about 125 or 130 ? A. Yes, sir. Q. Usual Democratic vote is about 25? A. Yes, sir. Q. Your usual majority there, then, was about 100? A. Yes, sir. Q. You are satisfied this box was used at both elections? A. Yes, sir. Q. Who was the Democratic candidate for sheriff' of Crittendeu County? A. Mr. Warner. And further this deponent sayth not. WILLIS (his x mark) McGEE. Deposition of E. B. Fields (col.), a witness on behalf of the con- testant, being first duly sworn, testified as follows : Q. What is your name ? A. E. B. Fields. Q. Where do you live ? A. I live at Scanlan's, Crittenden County, Arkansas. Q. How old are you? A. 34. Q. How long have you lived there ? A. Ever since 1876. Q. Do you see this tin box that I show you here? A. Yes, sir; I examined a box of that kind about two days before the election ; helped tote it out towards where my home is. Q. Whereabouts was that place? A. Scanlan's. Q. In whose possession was that box? A. J. J. Ward, a white gentleman living down there ; a Democrat. Q. Does he hold any official position tbere ? A. None at all, sir. Q. Was he one of the judges of the election there? A. Yes, sir ; he was one of the judges of election at Edrnondson Station. Q. You said that's the box he had in his possession ? A. Yes, sir. Q. Did you vote at the Presidential election at your voting place last November ? A. Yes, sir. Q. Do you know what disposition was made of your vote ? A. No, sir ; not more than I carried my ticket in and they took it and kinder folded it up and stuck it in that box there. Q. Put it in a box of the same appearance as that ? A. Yes, sir ; same kind of tupelo as that is. I don't know what route it went, but I see them put it in at the top. Q. Do you know what is the vote of that box over there; what is the Republican vote at your precinct? A. About 100 and 125. Q. What is the Democratic vote there? A. About 25, sir. Q. Do you know whether there was any Republican votes cast there that day or not? A. Yes, sir ; I give several of them tickets, and they sealed them up and said they was going to vote them just like they was; didn't open them at all. Q. How many did you give tickets to ? A. I'm certain I give four ; I give tickets to several, but I didn't know what they did with them ; hut I gave tickets to some and they held them in their hands like they were afraid they'd get away from them. Q. Why didn't you take any more interest in the election that day? A. In the State and county election I got disgusted, and I didn't take no more interest in it afterwards. It was the fashion to vote and I just thought I'd vote because it was a fashion ; didn't do any good. Q. Why not? A. We usually have a great large majority, and the county election was decided, and the Democrats were 14 or 1,500 ahead, and I didn't think there was no use for voting because we always voted the same. Q. What's the reason you didn't have any coutidence in it? A. I didn't think ifc was counted at all, sir. FEATHERSTON VS. CATE. 103 Q. How many boxes of this description and fashion did you see over thcie in that election ? A. Seen two in the county election. Q. Where were they used? A. One was used at Scanlan's, and the other there was a tag on it for Eduiondson Station. I looked at the tag myself. Q. Do you know who sent those boxes down there, these election boxes to which you refer? A. They said Mr. Warner sent them down there. Q. Who said so ? A. Mr. Jerry Ward told me so. Q. Was Mr. Warner the judge of any of the elections there? A. No, sir; he's the sheriff of the county. Q. Is he a Democrat or Republican! A. He's a Democrat, I reckon. The colored people first taken him up. Q. Were the judges and clerks of this election at which you say these Republican votes were cast Democrats or Republicans? A. Straight-out Democrats, sir. Q. All Democrats A. All Democrats, sir. Q. Were they red-hot Democrats ? A. Right square out, sir. Q. Were there any disturbance or rows there on the day of election ? A. When the State and county election was? Q. Were there any in the Presidential election ? A. No, sir ; it was a kind of a day like this ; it was raining all day most ; didn't have no fuss that day. Q. If the Republican voters there had believed their votes would have been counted do you think there'd have been more people there that day than there was ? A. Yes, sir'; I think there'd have been more. Always turn out in full force when they have confidence. Q. Who was the sheriff before this election ; before the last election ? A. W. F. Warner. Q. Was he re-elected? A. Yes, sir. Q. On what ticket? A. On the Democrat ticket, sir. Q. And you say he was one of tbe gentlemen who had these ballot-boxes like this sent down there? A. Yes, sir. (Printed record, page 215.) Tt appears^from this testimony that John Johnson saw 73 Republi- cans vote the Eepublican ticket, and that others voted after that; and that the Republican vote of the township was 112 or 113. E. B. Fields swears the judges were all Democrats and that they had the fraudu- lent tin box. Willis McGee swears that the judges were all Demo- crats, that there was a good turn-out of the Republicans, and that there was from 100 to 125 Republicans in the township. The return shows two votes for contestant. On this state of proof the question is : How many votes should be allowed the contestant ? It was held in Bisbee vs. Finley that : Where the evidence shows a return to be false, and not a true statement of the votes cast, such return is impeached and destroyed as evidence, and the true vote may be proven by calling the electors whose names are on the poll-books as voting at such poll, and no votes not otherwise proven should be counted. Under this rule, and we know of no exception to it, the return must be rejected. The rejection of the return does not necessarily leave the votes ac- tually cast at a precinct uncounted. It only declares that the returns, having been shown to be false, shall not be taken as true, and the par- ties are thrown back upon such other evidence as it may be in their power to produce in order to show how many votes and for whom; so that the entire vote, if sufficient pains be taken and the means are at hand, may be shown and not a single one be lost notwithstanding the falsity of the returns. The contestant shows that he received 73, and perhaps more votes, and these, we think, should be allowed him. Deduct these from Gate's remaining majority and the vote stands thus : Cate's majority 911 Deduct the 73 Leaving Cate'e majority 738 104 FEATHERSTON VS. CATE. The return having been overthrown, and the contestee having failed to prove any vote in the township, is not allowed the 61 returned for him. Cat Island. In relation to Cat Island precinct the testimony is as follows : Kobert Abernathy (col.), a witness on behalf of the contestant, being first duly sworn, deposes as follows: Q. What is yonr name ? A. Robert Abernathy. Q. Where do you live ? A. I live at Cat Island. Q. How old are you ? A. 1 don't know truthfully; I am something over 40, though. Q. What is ycrur business? A. Well, I farm a little. Q. Are you a planter? A. Well, I planted last year; I reckon I will some this year, but then I'm not an extensive farmer. Q. Can you read and write ? A. Yes. Q. Did you vote at the last election the national election ? A. I did. Q. Where did you live previous to that time ? A. Alcorn County, North Missis- sippi. Q. How many white people were there ? A. About twenty-five. Q. And the rest of the voters were all colored ? A. All colored. Q. Do you know who those colored voters voted for in the last election ? A. Gen- eral Republicans; nine-tenths of them were Republicans; I heard them say prior to the time they would vote that ticket under all hazards; then when the tickets were issued they come there through the rain and got the tickets and went to the island, and I seed no other ticket during the day but the Republican ticket. There was no other exhibited publicly. Q. How do you know the Republican ticket ? A. Well, there wa^s Harrison and his electors and Featherston on it ; I voted it fora Republican ticket; if I failed I'm just here under a mistake. We've had them together two or three times since, and there was only three men that said at each meeting that they did not vote. Q. You say you voted the Republican ticket? A. I did. Q. Do YOU kuow whether that ticket was put in the box or not? A. Yes, sir; I'm most safe in saying it were, and I seen where the chairman .there couldn't see the box. When I came up a man challenged me and says, " Has Abernathy a right to vote?" One of the judges of election says "Yes; I have known Abernathy over two years, he has a right to vote," and he turned and put my ticket in the box; that's how I come to see it; if he had not turned I would not have seen it. Q. Were there any Republican judges there at that time ? A. There was none. George Hendley (col.) a witness on behalf of the contestant, being first duly sworn, deposed as follows : Q. What is your name? A. George Hendley. Q. Where is your residence? A. In Crittenden County, Arkansas. Q. What is your age? A. bl. Q. What is your occupation? A. I'm a farmer and sometimes I teach school. Q. I want to kuow about the usual number of voters in your township ? A. Usually we have always voted from 196 to 200, always, in the township. Q. What proportion of them were Democrats; about how many Democrats were in the township? A. Well, we have generally been known to be about from 14 to 15. Q. How many Republicans? A. We have been known to be from 180 to 182 and three and four and so on. Q. Did you vote on the November election? A. Yes, sir; I did. Q. Did the Republican voters in your township turn out pretty well ? A. Yes, sir ; they voted out very well. Q. You consider it a full vote that day ? A. Yes, sir; I considered it nearly a full vote; not quite as many as voted in the county election. Q. Was the regular Republican ticket voted by the Republicans oil that day ? A. Yes, sir. Q. Have you got a copy of that ticket with you ? A. I haven't one with me, but I can describe it ; it was a red ticket with a calico back to it. Q. Did many of the Republicans scratch their tickets ? A. There didn't any scratch it as I saw, and I don't believe any scratched it. Q. Did any of the Republicans to your knowledge vote any other ticket ? A. None whatever to my knowing. Q. Were they as much as usual interested in that election ? A. Yes, sir. FEATERSTON VS. CATE. 105 Q. About what is the usual Democratic vote, did you say, of the township ? A. It generally has been about from 13 to 15. Q. That's about as many of the Democratic voters as you have ever known to vote there? A. Yes, sir. Q. That pink ticket had who on it for Congressman ? A. L. P. Featherston. Q. Do you know of any of the Republicans for W. H. Cate for Congressman f A. I do not. K *** Q. Did the Republicans all vote the Republican ticket in the last election? A. They did as far as I know ; in fact I saw most of 'them all vote ; they all voted it; they all told me they would vote the Republican ticket; I saw a great many of them vote it. and the majority of them told me afterwards that they had voted the Repub- lican ticket. Q. Was there any special reason why they were more anxious that the Republican party should succeed in the last election than before ? A. Yes, sir. Q. What was that reason? A. Because there had been a great trouble occurred in the county, and the people were very much dissatisfied from the treatment; the Re- publicans, and more especially the colored; I know they were very much dissatisfied an. I they wanted all officers elected with Republican men in them. Q. For what purpose? A. In order that they might get justice. ***** Q. Where do you live? A. I live in Cat Island. Q. How long have yon lived there? A. I been living there 7 years. Q. What is the name of your voting precinct? A. Cat Island. (Printed record, page 187-8-9.) George Hendley, in speaking of whether the judges and clerks were sworu, testifies : Q. Do you know whether the judges and clerks of election were sworn ? A. If they were sworn, I don't know who swore them; at that time I were acting justice of the peace there, and of course I know I didn't swear them myself, and I were the only justice of the peace that were in the township, and if they were sworn I don't know who swore them. Q. Are you justice of the peace at present? A. No, sir. Q. Were you a candidate at the last election? A. No, sir. Q. You have no interest in this only to tell the truth ? A. That's my only interest I have. George Heiidley, in speaking of the position of the ballot-box, testi- fies : Q. Was the box always put where you can see all around it ? A. No, sir ; the box was in a place where I couldn't see the box; I don't remember of having seen the box. Q. Could you see whether your ticket was put in the box or not ? A. I never saw the box at all; I only handed my ticket in to the man that was setting in the win- dow, or near the window, and I didn't know whether he put my ticket in the box or not. ***** Q. Has the custom there been to put the boxes in such a shape that the voters couldn't see it when they were voting? A. No, sir; it never was the case before. Q. Was it this time ? A. Yes, sir ; it was out of sight this time : we couldn't see it. (Printed record, page 188.) George Hendley, in speaking of the judges of election at Cat Island precinct, testifies : Q. Who were the judges of election in your township ? A. Dr. Stewart and Otto Sypnlcs, and I forgotten who the others was. Q. Were they Democrats or Republicans ? A. They were all Democrats. Q. Did you have any Republican judges of election the last election ? A. No, sir; we did not. Q. They were all Democrats? A. All Democrats. Q. Do you know whether that is the condition of affairs in other parts of the county or not ? A. I do not know, but I have heard that it was. (Printed record, page 188.) It appears from this testimony that the Eepublicans turned out well} that they did not scratch the ticket j that the fraudulent ballot-box was 106 FEATHERSTON VS. CATE. r.sed ; that Republicans before the election had met and agreed to vote their ticket at all hazards ; that there were from 1^0 to 182 Republicans in the township; that the judges were all Democrats; that there were not more than 14 or 15 Democrats in the township; that there was a full vote by the Republicans; that the judges were not sworn ; that the ballot-box was so placed that the voter could not see it. The return shows 120 for Featherston and 88 for contestee, and the question is, under the proof, what ought to be done? The total vote cast is 208, and the proof is that there are but 35 Dem- ocrats in the township, and that the Republicans did not scratch their ticket. By giving the Democrats their full vote, Featherston ought to have received 193 votes out of the 208, and he is returned as receiving 120. In view of the conduct of the partisans of the "contestee in Critten- den County whereby the contestant and his attorneys were prevented from taking testimony and which will be referred to hereafter, strict and technical proof will not be required. We think the true rule was laid down in the case of Smalls vs. Elliott, session of 1888-'89, by the minority of the committee, where it is said : Contestee's partisan friends deliberately violate the law in suppressing the box, and contestee himself (acting through his counsel), by force and threat of violence, suppresses and hinders the judicial inquiry as to the box and its contents. Siippressio veriauggestio falxi. All things are presumed against him who sup- presses the truth and prevents inquiry. Shall contestee be permitted to take advantage of his own wrong, and of the will- ful and criminal violation of the law by his partisan friends? Is the sin of the guilty to be visited on the innocent? Shall he who suppresses the best evidence by force, fraud, and violence, stand up in the face of the court of last resort and insist that secondary evidence shall not be produced and admitted ? In this case, assuming the testimony to be true, and we do not doubt but that it is true, it appears that before the election every provision looking to a fair and honest election was violated, and that after the election every attempt to show the true vote was suppressed by the partisans of the contestee. \Ve think the proof clearly shows that the contestee could not have received more than 15 votes in Gat Island Township, if that many. Therefore, we give to the contestant 73 votes more than were returned for him, and deduct 73 from the vote returned for contestee. These two changes aggregate 146. The result would then stand thus : Gate's majority 735 Deduct the 146 Leaving Cate's majority 592 Crawfordsville precinct. In relation to the Crawfordsville precinct the testimony is as fol- lows : James Brown (col.), a witness on behalf of the contestant, being first duly sworn, testified .as follows: Q. What is your name? A. James Brown. Q. Where do you live? A. Crawfordsville, Crittenden County. Arkansas. Q. How long have you lived there? A. Been living there now going on four years. Q. What is your business ? A. Farming. Q. How old are you ? A. The 25 of this coming month I'll be 41 years old. Q. Did you vote for the national ticket at the election held iu November for Presi- dent and members of Congress in Crittenden County, Ark. ? A. Yes, sir; my inten tion was to vote the Kepublican ticket straight out. FEATHERSTON VS. GATE. 107 Q. Do you know whether you did or not? A. I don't know whether I did or not, but I voted the ticket that they gave me, that they say was Republican. Q. Who gave you that ticket ? A. The ticket I voted I got from Henry Davis. Q. Was he a Democrat or Republican ? A. He was claimed to be a Republican ; he goes for a Republican. Q. Do you see this box that I have in my hand here ? A. Yes, sir. Q. With this peculiar device on top of it here ? A. Yes, sir ; I see that box now. Q. Did you ever see one like it before? A. I didn't see one exactly like that, but it had more of a shape come like that ; they had two divisions in it. I seen the top of the box just like I look at the top of that one now. Two places cut in that box like it was cut for the tickets to go in each one of those holes; that's the way that box was ; there was two places in the top of that box. Q. Then, the box you saw was just like this one? A. Yes, sir. Q- You saw a box like this one, then, at Crawfordsville that was formed on top for the reception of tickets like that one is formed? A. Yes, sir; just like that one was formed. Q. You say your intention was to vote the Republican ticket? A. Yes, sir. Q. Did you cast your ballot? A. Yes, sir; I went to the door and handed it to the man that was placed there to take the tickets. Q. What did he do with it? A. He cast ifc around to the box ; I seen him carry it to the place that was to put the tickets in, but whether it went inside of the box I do not know. We all was standing out in the rain anyway, and wanted to get through as quick as we could. Q. Was that the ballot-box ? A. Yes, sir. Q. Was it made out of tin ? A. Yes, sir. Q. Then, so far as you could see, it was a box constructed like that ? A. Yes, sir. Q. You say you gave your ticket to some one. Who was that? A. A man that was called Willis Raspberry. Q. Was he a Democrat or Republican ? A. Well, he's a Democrat. Q. Do you know the judges of the election that day ? A. Laurin Butler were one ; Bob Jinley was the other; Jim Hooxbul was the other. Q. Were any of those men Republicans ? A. No, sir. Q. Were they all Democrats? A. They were all Democrats. Q. If this testimony that you are now giving was taken at Crawfordsville would you testify ? A. I will if I'm living and the Lord spares me. Q. Have you ever seen any of these boxes anywhere except at Crawfordsville ? A. No, sir. Q. Do you know what became of the ballot-box there after that day ? -A. No, sir. Q. You say your intention was to vote the Republican ticket ? A. The Republican ticket straight out, the ticket that they say Mr. Featherston was on. That was a red ticket. That's the ticket I voted. Q. Do you know whether the negroes of that county whether they intended to vote the Republican ticket or the Democratic ticket ? A. Their whole intention was to vote the Republican ticket straight out. Our intention was before we started, before the election come to an end our intention was to vote the Republican ticket to beat out that Winchester crowd. That was our intention. Q. Who was that Winchester crowd composed of ? A. Andrew Martin and Sheriff Werner. Q. Were they Democrats or Republicans? A. Democrats. (Printed record, page 218-19.) Giles Shenault (col.), a witness on behalf of the contestant, being first duly sworn, tstified as follows : Q. What is your name ? A. Giles Shenault. Q. Where do you live ? A. Crawfordsville, about three miles southwest of Craw- fordsville, Crittendon County, Arkansas. Q. How old are you ? A. Nearly 52. Q. How long have you been there? A. Going on eight years. Q. Did you vote at the last Presidential election held in the State of Ark. in No- vember, 1888? A. Yes, sir. Q. Did you vote the Republican or Democratic ticket? A. Well, I voted the red ticket they called the Republican ticket. Q. What ticket did you intend to vote, the Republican or Democratic ticket? A. The Republican ticket's what I was after. Q. Do you see this tin box that I have in my hand here F A. Yes, sir. Q. Did you ever see one like that before ? A. I think that one we had right yonder was like that. Q. What do you mean ? A. At Crawfordsville. 108 FEATHERSTON VS. GATE Q. What time did you see it there ? A. The morning of the Presiiloutial election Q. That took place when ? A. In November. Q. What year ? A. 1888. Q. Where did you see that box that you mention ?- A. I saw it there in the drug store. Q. Whose drug store ? A. Dr. Haden's. Q. For what purpose was that box being used ? A. They said it was a ballot-toox, had the tickets in there. Q. You say you voted the Republican ticket that day? A. That was my aim ; I voted the ticket they called the Republican ticket. Q. What became of that ticket ? A. I don't know what went with it ; I handed it to a man setting at the box, and he poke it down there. I don't know where it went. Q. Was the box he put the ticket in precisely like this? A. I never seed nothing took off of the top like that the mouth imitating that. ******* Q. Who was the gentleman you gave your ticket to, that put it in the box? A. Raspberry. Q. Is he a Democrat or Republican ? A. He's a Democrat, I reckon ; what we call him. Q. Was he one of the clerks of the election that day ? A. Yes, sir ; he was in there with them ; he was constable ; he was the man that showed the box, 'cause he opened it; pulled it open, and turned it over that way as you see there, and no tickets in it; that Avas Raspberry ; he was considered to be the constable there, and I was the first man that voted, and it was raining, and I handed the ticket in to him, and stepped right back ; wo was very much crowded ; it was pouring down rain, and he took the ticket and appeared to be putting it down in the box that way. (Printed record, page 212.) It appears from this testimony tbat the fraudulent tin ballot-box was used; that the judges of election were all Democrats ; that there was a good turn out, the total vote polled being 395. It was at this township the contestant went to take testimony and was prevented from so doing by the friends of the contestee. The nearest approximation to proof of how the vote stood, in that township, is found in the testimony of E. D. Sanders (page 200) where he says that the vote of the Republicans is about 6 to 1 of the Demo- crats, and when interrogated, as toCrawfordsville, he says that would not be a fair proportion for that township, nor does he say what would be. The return from the township shows the following: Cate 88 Featherston 147 Barrett . 160 Total 395 It does not appear from the record who Barrett is, or what party put him in nomination, or whether there is any such man. Had the contestant made proof of any vote received, as was done in Scanlan and Cat Island, we would set aside the return and give him the vote proven ; but he has not done so. If we should set aside the return it would have to be done on suspicion, or from the fact that re- turns should not be regarded where the use of a fraudulent box is shown, and that the judges of election were all of the Democratic party in a strong Republican township. To set aside the return in a township where the contestant has a majority, but not as great as he claims it should be, in a case where he was prevented from making full proof of his vote, would be to reward the fraud complained of. and punish him for undertaking to expose it. Where there is no proof upon which we would be justified in setting aside the return, we therefore let it stand. As both parties have had credit for this vote, it .having been certified to the secretary of state, it makes no change in the majority. FEATHEKSTON VS. GATE. 109 No election at Tdlewild precinct. George Heudley, in speaking of the failure to hold an election at Idle- wild precinct, testifies : Q. Is there any other voting precinct in yonr township ? A. Yes, sir; Icllewild. Q. Do yon know whether there was auy election held at Idlewild? A. There was not. Q. Do you know whether the judges of election at that point were all Deraocratsor all Republicans? A. They were all Democrats. Q. What was the conclusion of the people of that precinct was the reason for not opening the polls ? A. The conclusion was because that all of the people there, the voting citizens, was going to vote the straight Republican ticket, and in order to pre- vent them from voting, it was supposed they wouldn't open the polls that day. Q. Did any of the voters come down to your precinct to vote? A. Yes, sir; about 12 or 14. Q. Did they tell them that the polls were not open at Idlewild? A. Yes, sir; they did. Q. And thought that they could vote there because it was in the same township ? A. *Yes, sir. Q. Were they allowed to vote? A. Well, I couldn't really say that they wasn't al- lowed, because I met them as I were coming away, but they told me that they was objected to voting. Q. You d'n't know whether they voted then or no^? A. I know that they didn't vote ; they said they was objected of voting by some one ; I don't know who. Q. How many men told you they were at the polls that day for the purpose of voting the Republican ticket? A. About 26. Q. Can you furnish their names? A. I can. And further this deponent sayeth not. (Printed record, page 188-9). No polls opened in Ferguson. Thompson Foster (col.), a witness on behalf of the contestant, being first duly sworn, testified as follows: Q. What is you name? A. Thompson Foster. Q. Where do you live? A. Crittenden County, Arkansas. Q. How long have you lived there? A. Ever since 1870. Q. How old are you ? A. 28. Q. What is yonr occupation? A. Farmer. Q. What is your usual voting precinct? A. Ferguson precinct. Q. Was there any election held there on the sixth day of November last ? A. No, sir. Q. Were you at the polls to vote ? A. Yes, sir. Q. Were the judges of election who served at the State election all Democrats or Republicans? A. They all was supposed to be Democrats. Q. They didn't come about the polls to open the polls during the day ? A. No, sir ; not to my understanding, or not to my knowing ; never saw any of them. Q. What was the Republican majority in your precinct generally? A. About 120 or 125. Q. What proportion of them were at the polls during that day for the purpose of voting ? A. Off and on all day, aboat a hundred to my knowing. Q. They came there for the purpose of voting ? A. Yes, sir. Q. And the polls not being open they couldn't vote? A. Yes, sir. ***## Q. About what is the Democratic vote of your township? A. There is about six or eight. Q. Were they out that day to vote? A. No, sir. (Printed record, page 205.) Furgeson. T. J. Jonrs (col.), a witness on behalf of the contestant, being first duly sworn, testified as follows : Q. Where do you live? A. I live in Proctor Township. Q. Whereabouts? A. I live there at Ferguson's. C. What State and county ? A. Crittenden County, Arkansas. Q. How long have you lived there? A. About 21 years. 110 FEATHERSTON VS. CATE. Q. How old are you ? A. About 29. Q. What is your business? A. Farming. Q. Where is your usual voting place? A. Ferguson's, tliough I vote at Jones's on the national election Presidential election ; my usual voting place is at Ferguson's. Q. But the Presidential election you did vote at Jones's? A. Yes, sir. Q. Were you down at Ferguson's during the day? A. Yes, sir; I was at Fergu- sons during the day ami at Jones's ; was at Ferguson's first. Q. How long were you at Ferguson ? A. About two hours, I reckon. Q. Were there a good many people there? A. Yes, sir. Q. Anxious to vote ? A. Yes, sir ; they were strung all around there ; seemed to be. Q. About how many came to the polls to vote at Ferguson while you were there ? A. During the day, about a hundred. Q. Did you know all of the people ? A. No, sir; I didn't know all of them ; I knew one part of them. Q. Was that the larger part of them ? A. Yes, sir ; that's a large body of them. Q. What were their politics; were they Republicans or Democrats? A. They all was Republicans. Q. They all turned out to vote ? A. Yes, sir; all but about a few white men was in the crowd; they was Democrats. Q. How many Democrats do you imagine was in the crowd? A. I didn't see any of those white men at the polls, but in that precinct four or five of them was Demo- crats. All the judges, pretty well, live there in that voting precinct are Democrats, but I didn't see them all during that day. Q. The voters that you saw at the polls then were all Republicans ? A. Yes, sir; all Republicans. Q. You think you saw about a hundred there ? A. About a hundred. Q. You been voting at that precinct for several years? A. Yes, sir. Q. The Republican vote there is usually how many ? A. Well, it's about 120. Q. Were the judges of election for that township Democrats or Republicans ? A They was all Democrats pretty well, 1 think. Q! Did you hear any reason given for the judges not opening the polls on that day? A. Didn't hear no reason at all; I did at one time, but I didn't pay much attention to that. Some says that Col. Armstrong wasn't there the reason the polls wasn't opened, and I understand that Col. Armstrong were in town Memphis here though he had been notified that he was judge of that election. Q. Did he serve as judge in the State election ? A. In the county election he did, but not in the national election Presidential election. Q. If the polls had been open there all day long as they usually were and ought to have been on the day of election, from what you know of your 21 years' residence there, and of the citizens around, what would have been the majority for Harrison and Featherstou in that district? A. About 115. (Printed record, page210.) S. B. Rushing (col.), a witness on behalf of t he contestant, being first duly sworn, deposed as follows: Q. What is your name? A. S. R. Rushing. Q. What is your age? A. About 38. Q. Where do you live? A. Jones's. Q. What county ? A. Crittenden. Q. What State ? A. Arkansas. Q. Did you vote at the last national election? A. No, sir; wouldn't let me vote. Q. How did they keep you from voting? A. Said I didn't live in that precinct. Q. Your vote was challenged, then? A. Yes, sir. Q. Was the election at your regular voting place? A. Twasn't held. Q. Why was it not held? A. I don't know, sir; didn't hold it there. Q. Do you know whether the majority of voters in your precient how they stood whether they were usually Democrats or Republicans? A. All of them was Repub- licans but about six. Q. You say there was no election held there at all? A. No, sir. Q. Was the State election held there? A. Yes, sir. Q. No national election? A. No, sir. Q. Were the judges Democrats or Republicans? A. All of them were Democrats. Q. You refer to the State election now ? A. Yes, sir. Q. What is the usual number of votes polled at that township precinct ? A. About 130. Q. What proportion of them are Republicans? A. All of them but about five or six. Q. Were most of them at the polls that day and anxious to vote ? A. They told me they were there all day. I was there trying to get the election held, and never got it. I was supervisor, and after I was notified that I was supervisor I went to the FEATHERSTON VS. GATE. Ill polls in order to know the reason or see that there was- an election held there. I was appointed by the proper authorities, and I went there for the purpose of having some kind of an election. No judges came, and there was no election held. Q. When you got to Ferguson's and found you couldn't vote found that the polls were not open you went to Jones's for the purpose of voting ? A. Yes, sir. Q. And there you were denied the right to vote? A. Yes, sjr; none of us voted at all. Q. Were there any poll-books or a ballot-box furnished to any one that you know of in Ferguson precinct ? A. There was a ballot-box sent to me at 1 o'clock the same day ; it was about 1 o'clock. I was in my store ; bad a clock in there, and the bal- lot-box come there ; the fellow came ; he looked like he came in haste. He come there with the ballot-box and poll-books and everything; says, " I want you to hold election at Ferguson's;" I says, "I ain't the judges." " Well," he says, " you are appointed as supervisor." Isays, "I haveno notice of that." "Well," hesay-, "it's in this thing." And I took it and looked in there and I saw I was appointed supervisor at Ferguson's and Jones's. I thought that was a mere mistake: I dou't know how I come at two places, but then my name was on at Ferguson's and Jones's, and I thought it was very necessary to vote for Harrison as President, and I wanted to vote the whole ticket, especially Featherstoue ; wanted to vote the whole ticket. We voied the State and county ticket solid Republican. There wan't but six men went against us at that precinct, and we voted 128 or 30 there. The reason I didn't hold the election was because I sent it to the judges of the election ; I thought they were elected for a certain term under proper authorities ; I sent it to them and ordered them to open the polls immediately, that I was going to hold an election. There was none held at all. There was people coining there all day ; I reckon there was more than 25 or 30. I reckon there was more than them ; of course I counted that many citizens of the county, and there was citizens of the United States, and we couldn't vote. Q. If the polls had been opened there early in the morning, according to law, what would have been the majority given to Harrison and to Featherstou ? A. They'd have got about 125 votes apiece. Q. What would have been the Democratic vote there ? A. About six or eight. (Printed record, 206-7.) The townships of Idlewild and Furgeson may be treated together. The proof shows that the judges of election at Idlewild were Demo- crats ; that they failed to open the polls, and that the Republican ma- jority in the precinct usually ranged from 100 to 125. It also shows that at Furgeson the judges of election were all Democrats; that they failed to open the polls, and that the Republican majority in the pre- ciuct is 115 ; i. e., this had been the usual Republican majority. We know of no rule by which these votes can be counted under the state of proof as to these townships. The action of the Democratic judges in these precincts no doubt deprived the contestant of some- where about 250 majority : but it is no worse, in fact not nearly so bad, as the conduct of the judges of election in Scanlan, Cat Island, and Crawlbrdville in the use and manipulation of a fraudulent ballot-box. It is nearer on a level with the action of the county court clerk already referred to, who willfully failed to certify the vote of seven townships to the secretary of state. Nor is it quite as bad as the action of the county judge who appointed such creatures of a conspiracy as judges of election. But it does show that the conspiracy formed in July, 1888, to control the county of Crittendeu politically, with less than one-sixth of the legal voters, was still alive and active in November in depriving the Republicans of their votes. What made the Republicans poll a full vote at the November election. Jordan Teates, in speaking of the vote polled at the Congressional election, testified : Q. What made them stick closer together than usual? A. Upon the action of the Democrats with the Winchesters; that's just exactly why we stuck so close, seeing how cruel those men, undertaking to take the advantage of men, because they wanted them out of office. 112 FEATHERSTON VS. CATE. Q. Do you think they stuck as closely together in the national election? A. Yes, sir; they stuck just as close in the national election. Q. You think they were specially anxious to see a Republican President elected ? A. Yes, sir; they had it on their minds if they carried that election they pi'obably would be able to obtain justice. Q. The Republican vote, then, you are satisfied, in Crittenden County, in the two last elections has been more solid than it has been for years ? A. More solid than it has been in 20 years. Q. Repeat in as short a way as you can, your reason for thinking that? A. My reason for thinking it was just this: It was just simply for the way that the Demo- crats did, They taken, for the sake of getting in possession of the office, they taken their guns, raised up an excuse against our leading men that we had there, Dave Ferguson and Dan Louis ; they felt that was the only way they had to coine in power, was to get up some excuse against those men to drive them away and all their fol- lowers; that was our opinion ; that caused us to stick together so close ; that those men did that for the purpose of frightening the election so as to frighten the others so they wouldn't try to arrest their actions at all, and we were determined to show them that it was allowed to us to vote and we intended to execute that right, and that was the feeling with the people generally, that they all turned out and voted when they had a chance, and all voted in the national election the straight Republi- can ticket. (Printed record, page 194.) William Koyster, in speaking on the same subject, testified : Q. Why did the colored members of the Republican party poll such a large vote and stick so close in the national election ? A. Because the men that they had had there for leaders I suppose they had a great deal of confidence in was hurried away, and they made the brag when they got up the Winchesti r crowd that they had the snakes [tail] oft' in the morning and the head would die by sun-down; and that was the motto what drew the people together ; and they said if they had cut the snake's head off they would come nearer together than they were before. Q. What did they expect from the Republican party if it got into power ? A. I ,don't know, sir ; they expected to get some civil law in the country ; there is no law; because we expected to get some relief from the condition of affairs that prevail ; to get some relief from the condition of affairs that prevail now. And farther this deponent saith not. (Printed record, page 191.) J. L. Fleming, in speaking on this subject, testified : Q. Do you know whether the colored people of Crittenden County vote the Repub- lican or Democratic ticket ? A. The colored people of that county vot.e the Repub- lican ticket, and they voted more solid last year than they ever did. Q. Why? A. Because they understood that the action of that Winchester crowd was for political purposes, and they intended to vote solid Republican more than they ever had done before because they saw the advantages that the whites tried to take of the colored Republicans. Q. What were those advantages? A. By driving the leading Republicans out of the county they thought that the colored people would have no leaders. Q. These leaders that you speak of, did they, in their advice to the colored people, advise assassination, or incendiarism, or taking advantage of anybody ? A. No, sir; we advocated a fusion ticket in that county politics. (Printed record, page 196.) E. D. Sanders, in speaking on this subject, testified : Q. How was it with regard to the Republican vote; was it at all divided ? A. Not at all, sir. Q. Was there any reason why it should have been nearer a unit than it had been in years before ? A. Yes, sir ; there was, from the simple fact those men calling them- selves the Democratic nominees had nominated over the Republican there, and brought out Winchester rifles ; made all kind of threats that they should not even nominate a ticket, and this brought them more closely together; I know it to be a fact in the last election we had there. For several years the Republican ticket lias been considerably divided, and that was done through the farmer who was controlling labor. Some of them, you know, would have a liking for the man they was working with, and would vote for him, but on this occasion they had no friends among the party at all, and therefore they consolidated and voted solidly. Q. What was your experience as to the reliability of the nigger standing up to his friends and voting his tickets in the State election ; what was your experience in this election ? A. Well, I think they stood right up and turned out fully and voted for their friends ; our precinct polled a heavier vote in the State and in the last election than it has there for several years. FEATHERSTON VS. GATE. 113 Q. Then you think the reason for it was to resent the tinjust treatment which they considered they had received at the hands of the so-called Democratic party man ipu- lated by the Winchester rifle crowd ? A. I do ; I'm satisfied of it. (Printed record page 199.) The following testimony gives a detailed history of the efforts of the contestant to take proof in Crittenden County, and that he was pre- vented from so doing by the partisan friends of contestee. W. B. Eldridge, being first duly sworn, testified as follows : Q. What is your name, place of residence, age, and occupation ? A. My name is W. B. Eldridge; '28 years of age; occupation, lawyer, and residence, Memphis, Tenn. Q. Are you a Republican or Democrat? A. I have never voted anything, and never will vote anything but the Democratic ticket. Q. Were you one of the attorneys for L. P. Featherston, and did you gotoCritten- deii County recently to take proof for him in the contest between him and Gate? A. I was one of his attorneys and did go for that purpose. Q. Mr. Eldridge, what sort of reception did you meet with from the people over there ? A. I was not received at all. Q. What do you mean by saying you was not received at all ; and please &ate how you were treated by the people over there; state fully. A. The people seemed displeased at my presence there as the lawyer of Mr. Featherston, and I was not in- vited in their places of business or residences, or in any way was I shown that com- mon politeness which the citizens of a town are supposed to extend to a stranger who is there on legitimate business. Q. What town was this? A. .Crawfordsville, Crittenden County, Arkansas. Q. You say you were not invited into any place of business or any house ; what was the condition of the weather at this time, and did you suffer any inconvenience on account of this inhospitality ? A. My associate counsel, Mr. Henry F. Walsh, and myself were together ; we remained there about two days and a night. The first day it was bitter cold, which we spent in a saloon with the doors open and no place to sit ; the second day was spent under the cover of the porches of the stores. We did this because we had nowhere else to go, and no one invited us in out of the cold and weather. Wo had some difficulty in getting anything to eat, which we finally secured from ne- groes, who allowed us to eat it in an open room adjoining where it was cooked. We came very near freezing here. This was a negro eating-house ; such a place I was never in before. The night coming on, we looked in vain for a place to rest, and I thought we would have to pass it in the open street. We finally induced a negro by the name of Logan to allow Mr. Walsh and myself to pass the night on a lounge in a room of his house, which was about half a mile from town. We received the only courtesy from this negro and his wife that we had there at all. *##* * Q. Mr. Eldridge, in all of your experience as a lawyer, have you ever received such impolite treatment as you experienced during >our trip to Arkansas on this occasion that you speak of? A. I never did, and hope it never will be repeated. Q. "Have you ever, in your experience as a lawyer, or in any other capacity, in traveling through the South, been forced to take your meals and lodging with ne- groes ? A. I never have ; I was born and raised in the South, and have never met with Southern people who did not have hospitality and common politeness before ; that was the first day's experience ; here's the second day's experience coming on. Q. You speak of the second day ; what happened on that day ? A. We awoke sec- ond morning and found i;'i raining; walking through the mud back to town we got our breakfast at the same place; and standing out on the porches of the stores we had a;am to endure the inclemency of the weather. Q. What sort of treatment did Mr. Featherston receive? A. Mr. Featherstone ate with us at this negro eating-house to which I have referred ; I do not know where he passed the night, as he said he had to go to tile country to sleep anywhere. The peo- ple were very bitterly opposed to Mr. Featherston's making an investigation of the election, and we hourly anticipated that we would have trouble. Q. Did you hear any threats made? A. Yes, sir; I heard Richard Cheaton and Dr. Hadeu make threats. Q. What did they say ? A. I heard them say that they did not intend to submit to an investigation of the election, and at one time I thought that Mr. Featherstou would become involved in a serious difficulty with a man by the name of Dr. Haden, who seemed very much excited over our presence on the ground. I went up to the crowd where Mr! Featherstou was surrounded by Dr. Hayden and his frieads and car- ried him off to prevent a difficulty which I feared. Q. Did any of the men about the saloon seem to be excited from drink ? A. Well, pow, I don't remember whether any of them seemed to be excited or not. Q. Were they drinking? A. Oh, yes. H. Mis. 137 8 114 FEATHERSTON VS. GATE. Q. They were all drinking, were they ? A. Everybody was drinking pretty much. Q. Did you all get warning from anybody over there I A. I don't know anything about that. Q. Did you all go over with Mr. Berry, the lawyer of Mr. Gate, and did he say any- thing about acting as notary public f A. He said he would act as notary public, which aiterwards he refused to do, Q. Did yon all take any depositions there ? A. We did not. Q. VVhat was the reason for not taking the depositions ? A. He could not get a notary public, (here was a magistrate there, but he also refused to act, and Mr. Berry now refused, contrary to his promise and our expectations. Q. Now, Mr. Eldridge, please state from your information and from what you act- ually observed in the conduct and the general feeling among the white people of Crawfordsville, whether there was actually danger in attempting to take depositions for Featherston ? A. I think there was danger of personal altercations which might have resulted disastrously. The people were displeased with our presence there, and I saw that ii' we took depositions at all we would have to do it contrary to their wishes or assistance, besides that, we could not get a notary public, and that made the taking of depositions of course impossible. (Printed record, pages 226-227.) J. W. Wymme, on this subject, says : Q. Do you think you would give this testimony that you are now giving if this in- vestigation was held in Crittenden County ? A. I rather think I wouldn't, sir. Q. Why would you not? A. I'd be feared. Q. Afraid of what ? A. Them fellows might kill me. Q. What fellows ? A. Those fellows that got those guns that military company over there. Q. Do you think that any considerable number of voters would have given their testimony in this case if the investigation had been held at Crawfordsvillo ? A. No, sir; they'd have been afraid to have done so. (Printed record, page 204.) E. Y. Logan, on this subject, testified: Q. Do you remember advising Mr. Featherston that it would be best for him not to take testimony there in Crawfordsville at all, and to let the matter alone there? A. Yes, sir. Q. What was your reason for that advice? A. Well, I knew one thing, that the people was afraid to testify. Q. Why were they afraid to testify? A. Well, from the general appearance of things they didn't feel free to testify. Q. Have you heard any threats made there by the people of Crawfordsville in re- gard to people testifying ? A. No, sir ; I didn't hear any threats made there myself, that is. from what they said ; others told me. Q. You heard tuat there were threats made, you mean? A. Yes, sir. Q. Do you know the general feeling of the people of Crawfordsville towards Mr. Featherston? A. No, sir; I don't really know. Q. Do you think that Mr. Featherston could have satisfactorily carried on an ex- amination there in this Congressional contest ? A. No, sir; I don't think he could. (Printed record, page *219.) E. D. Hilderbrand (white), a witness on behalf of the contestant, being first duly sworn, testified as follows : Q. What is your name ? A. E. H. Hilderbrand. Q. Where do you live? A. In Crittenden County, near Crawfordsville, Ark. Q. How long have you lived there ? A. Seven years. Q. How old are you ? A. 53. Q. What is your business ? A. Farmer. Q. Have you ever held any official position in that State or county ? A. Never have. Q. Do you remember about three weeks ago when the lawyers of Mr. Featherstou, Mr. Walsh and Mr. Eldridge, came to Crawfordsville with Mr. Featherston for the purpose of taking this testimony we are now taking ; do you remember that time ? A. Yes, sir. Q. Was that testimony taken at that time ? A. It was not. Q. Why not ? A. Well, owing to the feeling of the people and the excitement that was gotten up the appearance of Mr. Featherston and his coming there created quite a commotion, when his business was known especially ; a good many v. ere right smartly excited, but I never had heard anybody express themselves as to whether they was or was not ; I saw there was a good deal of feeling. Q. Do you mean to say the people felt uneasy and angry on account of the appear- ance of Mr. Featherstou and his lawyers on the ground for that purpose? A. I judge so. FEATHEKSTON VS. CATE. 115 Q. Was their feeling opposed to Mr. Featherston? A. Yes, sir ; a good deal of it ; there was a good deal feeling among all parties, those for and against, but that showed itself the most was those that were opposed to him. Q. Do you know whether Mr. Featherston and his lawyers were received there with courtesy or not ? A. I do not know ; I went up there that morning from home ; I didn't have any idea of seeing Mr. Featherston ; he was about the third man I saw after I got there ; I was surprised at his coming ; he had been there an hour or two when I saw him; as to how he was received, I couldn't tell you. Q. You say that the people of Crawfordsvillo were very much opposed to Mr. Featherston taking his testimony there, you think, from the general manner of the population there ? A. That would be my decision. Q. Do you think that Mr. Featherston could have induced witnesses to have tes- tified at Crawfordsville as to his election with any degree of satisfaction ? A. No, sir; he might have gotten a few that had the nerve, the majority of them were afraid ; the majority of voters that voted lor him would not have went there. Q. You say you do not think he could have procured witnesses to testify for him. Why ? A. Because they were afraid. Q. What were they afraid of? A. Well, sir; we are blessed with a military com- pany in our county, and those people muster frequently and carry guns, and they show a kind of a disposition that things must go the way they say. That's what I judge. Most of the people have never had any experience in fire-arms, especially when they have them pointed at them ; are a little afraid of these sorts Oi things. Q. You say you have a military organization, in your county ? A. I reckon it's regularly organized ; I don't know ; they meet and muster regularly, aud have their uniforms. * * * # * * Q. Did yon advise Mr. Featherston to continue that investigation or leave there ? A. My advice was to leave there. I urged the matter on him; took him home with me especially for that purpose. Q. Why did you advise him that ? A. Because I was better acquainted with the people than he was, and I could see from the feeling and the interest that seemed to be gathering around that it was better for him to Itave there. I was satisfied of one thing that if he persisted in the course he had started out on, there would be a dis- turbance. * * ***** Q. Did there seem to be much drinking among the opponents of Mr. Featherston the day he was there with his attorneys? A. There was right smart towards the middle of the day, and from that towards evening; in fact, they began to drink right smart soon after it was well understood he was in town and what his business was. There were several of them that were right smartly under the influence of whiskey. Q. Did you at any time during that day see Mr. Featherstou surrounded by the men of whom you speak, in a position that you thought was at all calculated to break the peace, and did yon anticipate anything? A. Well, I don't know hardly to answer that question ; I didn't want to think that the peace would be broken, aud I wasn't certain that it wouldn't be; that's just exactly the situation I was in. Q. But you finally concluded it would be if he staid there, did yon not ? A. I ad- vised him to that effect; I believed it. (Printed record, pages 20i, 202.) J. P. Broadenax, in speaking on this subject, testified: Q. In this county it's necessary for us to take this testimony, and we want to know if, under the feeling existing in that county, you think those people feel sufficiently aud free to turn out and give evidence and appears as we are doing here? Do you think that they would like for this testimony to betaken inside of Crittenden County, and would like to come and testify ? A. They say not. There has been some talk of you coming over there and taking testimony, and a good many of them said they wouldn't turn out; thought probably there would be some trouble after it was over. Q. Why did they imagine or think there would likely be trouble? A. Well, from the past trouble, I suppose. Q. Is there any evidence that those fellows intend to do any better? A. 1 don't know, sir. Q. Have you seen any evidence o^ it? A. Well, no, sir; I have not. Do you hear that they have abandoned that Winchester busiriehS, or do you know or have you heard that they are keeping it up? A. Well, I heard that they aban- doned it, sir, and I heard again that they had their Winchesters here. Q. You think, then, that if I want to take any testimony iu Crittenden County I'd better send this young gentleman with the machine and lawyer, and stay away myself? A. Well, I don't know, Mr. Featherstone; I don't think you would be safe; etill I don't know whether you would or not. (Printed record, page 108.) 116 FEATHERSTON VS. CATE. E. D. Sanders, in speaking on this subject, testified : Q. Under ordinary circumstances it would be necessary for us to take these depo- sitions within Crittendeu County. What is your impression as to the result of such a procedure in that county now? A. I don't think you could possibly do it under any circumstances. Q. Why not? A. 'Simply because you would be assassinated if you attempted it. More than that, you couldn't get the men to come up there and give in their depo- sitions. Q. W T hy would they object ? A. From fear of those Winchester rifles. Q. Where are you from f A. Well, I was born in Tennessee, in some near county ; my father moved from there to Mississippi wheu I was about three years old ; alter that I went back to Lebanon to school, and was there four or five years. 1 spout all my life in Tennessee, Mississippi, and Arkansas. Q. Are you a Eepublican or Democrat? A. Well sir ; from this day till I die, I'm a Republican. Q. What have you been heretofore? A. I've always voted the Democratic ticket, sir; ever since I first voted. (Printed record, page 2UO.) Jordan Yeates, in speaking ou the subject of whether witnesses would feel safe in testifying, swears : Q. I want to ask if the mass of the voters of Crittenden County, the colored voters feel free to tell what they know, aud how they voted in these past elections in Crit- tenden County ? A. They wouldn't feel free to do it generally, simply because they don't feel they would be safe by so doing. Q. Do you think it would be safe for that community for us to do, either in Critten- deu County iu Crawfordsville, what we are doing here ? A. No, sir ; I don't. Q. What is your opinion would be the result of it ? A. Well, there'd be a great ad- vantage taken ; I don't know but what there'd be somebody killed to-night; if not they would be chased mightily; have to leave there. (Printed record, page 194.) J. L. Fleming, in speaking on this subject, testified : Q. Do you think it would be safe personally, for you to give this evidence now in Crittenden County, that you are giving here in Memphis, Tenu.? A. No, -sir; I wouldn't feel very safe to do it. (Printed record, page 195.) Houston White (col.), a witness ou behalf of the contestant, being first duly sworn, testified as follows: Q. What is your name ? A. Houston White. Q. Where do yon live? A. Orittenden County, Arkansas. Q. How old are you ? A. About 31 years old. Q. How long have you lived in Ark. ? A. About 19 years. Q. What is your business ? A. Farming aud preaching. Q. Were you in Crawfordsville sometime since when Mr. Featherston and his at- torneys, Mr. Walsh and Mr. Eldridge, were there for the purpose of taking investiga- tion ? A. I was. Q. Was that investigation taken ? A. It was not. Q. Why not ? A. Because the threats by the white people had scared the colored population in such a way they was afraid to come aud give their depositions. Q. You think the colored people would have testified there, if that investigation had been taken ? A. No, sir ; they would not. Q. Do you think Mr. Featherstou or his lawyers would have been safe if they con- tinued there in the investigation ? A. No, sir. Q. Why ? A. On account of the feeling of the Democratic party against them. Q. What was that feeling t A. They wanted Mr. Gate to have the office, and they knew Mr. Featherston had the majority of votes and they would have, everybody believed, assassinated Mr. Featherston and all his friends before they would have suf- fered it. Q. Did you hear any threats that day ? A. I did. Q. Who made it? A. Mr. Hayden. Q. What did he say ? A. He said the election that had been there was over and there wasn't going to bo any more no more elections nor depositions taken or noth- ing else, aud before there would be he would see his blood in that street, aud Mr. Dick Chetom said, " You bet there won't." Q. Did you anticipate there would be a difficulty there that day when Mr. Feath- erston and his lawyers were there? A. I did so, and felt very uneasy for Mr. Feath- erston and his lawyers, and quite uneasy about myself, because I had been a friend of Mr. Featherston's in the national election, and voted for him, and they knew it FEATHEESTON VS. GATE. 117 and they seen me with him I knew they would be angry about it ; they made some threats in regard to me publicly that day. Q. What were those threats? A. That if I didn't keep my mouth I'd have to hunt a new home. Q. Do you know whether Mr. Featherston and his lawyers were received there po- litely by the people or not? A. They were not. Q. Where did they pass their time during their stay? A. The lawyers with a col- ored man by the name of E. Y. Logan, and Mr. Featherston was at Mr. Hilder- brand's. Q. Have you heard of any other threats having been made towards the friends of Mr. Featherston there by the Democratic party ? A. Not directly ; only through other parties. I've heard some remarks that's been made that Mr. Featherstou and the lawyers wasn't going to come back there any more, and they had given them a warning when they came out there; and they was gone, and tho darkies needn't be expecting them or talking for them, because they wasn't coming back. Q Who heard that statement? A. Henry Davis. ******* Q. Do you think that these witnesses would have testified if this investigation had been carried on at Crawfordsville ? A. No, sir ; I do not. Q. How many witnesses do you think we c.onld have gotten there ? A. I don't feel safe to say you would have gotten over 20 in the township. They are afraid of those Winchesters, and they say so. Q.' Who's got possession of those Winchesters ? A. The Democratic party's got possession of them. (Printed record, pages 181, 182.) Stephen James (white), a witness for the contestant, being first duly sworn, testified as follows: Q. What is ycur name ? A. Stephen James. Q. Where do you live ? A. Crittenden County, Arkansas. Q. What is your occupation ? A. Farmer, merchant, saw-mill man, little of every- thing. Q. Do you know the feeling of the people in Crittenden County towards Mr. Feath- erston ? A. Well, I reckon personally their feeling is good enough, but politically, I don't think it's very good. Q. Have you ever heard any threats made toward Mr. Featherston? A. I never heard any direct threats made. Q. Do you know whether there was any intimidation used in Crittenden County in the Congressional election, of which Mr. Featherston was an aspirant ? A. Well, I couldn't say there was, more than the Democratic party were all under arms furnished by the Government, I suppose, or the State; I don't know whether it had any tend- ency to intimidate or not; lam satisfied there was intimidation done in the State election, and I was credibly informed that the people voted in the Congressional elec- tion as though they did in the State election. Q. Do you think Mr. Featherston could, with safety to his person or with any de- gree of success as to the result, take testimony in Crittenden County, as to his Con- gressional election? A. I have told Mr. Featherston before that I thought his safety very doubtful, and for my part, I would not take those depositions in Crittenden County ; my reason for saying this is that I was a contestant for the office of county treasurer on the People's ticket, and I was repeatedly threatened with death if I continued in an investigation which I commenced. Q. How old are you ? A. I am 60 years of age. Q. How long have you lived in Arkansas? A. Since the tenth of February, 1845. Q. About how much land have you in cultivution ? A. I cultivated 800 acres in 1888. * # * * * Q. How long have you voted the Democratic ticket ? A. From James K. Polk up. Q. Why did you oppose what claimed to be the Democratic organization of your unty ? A. Because I knew that the dictatorial policy of the so-called Democratic arty in the county, with their Winchester- rifle policy, would destroy the labor in- rests and the agricultural interests of the entire county. #**#*## Q. Do you think that the average citizens of your county feel free to express their candid opinions within the county at the present time ? A. I do not. Q. Do you know whether this Winchester rifle crowd is still drilling at their arm- ory at Crawfordsville? A. I heard that they was about a week ago, or two weeks ago. (Printed record, page 186, 187.) 118 FEATHERSTON VS. GATE. Rev. T. J. Jones, iu speaking on this subject, testified: Q. Have you kept pretty well posted as to the strength of the Republican party in the county ? A. I has been, sir, for several years, though there ain't many people know it ; but I has been for several years. Q. You counted the Republican strength of the county at about what? A. I was supposing there was, that is, in the county something like about 1,800. Q. 1,800 majority ? A. Yes, sir. (Printed record, page 212.) J. H. Williams, on this subject, testified : Q. Do you believe it would be safe for Mr. Featherston to take testimony (contest case) inside of Critteuden County? A. Well, it would be owing to the precinct you were in. Q. Say at Crawfordsville? A. I couldn't say that, whether he would be or not. Q. Do you believe that the witnesses would be willing to turn out and testify at Crawfordsville ? A. No, sir ; I don't think tlie witnesses would come ; about Feath- erstou being safe there, I couldn't say that, but I don't think the witnesses would come there ; but Featherston is different from a witness. Whether Featherston would be killed or not I couldn't say that. Q. What is the cause of this feeling that exist* among the witnesses? A. Well, they keep a military company there all the time. They have Winchesters at any minute, and a man going there to testify wouldn't feel safe, let him be who he would be ; that's my idea about it, sir. Q. If it was necessary for you to take the testimony of all the witnesses in your county, of all the voters that had voted for you in your county, would you persist in your contest or would you abandon it ? A. I think it would be best to abandon it, sir. Q. Why? A. My opinion is the witnesses would be afraid to turn out. (Printed record, pages 213-14.) Thompson Foster, on this subject, testified : Q. Do you think that the citi/ens of your neighborhood would feel perfectly free to turn out and testify under the circumstances that exist there now, or would they rather not do it? A. Well, no, sir ; I don't think they really would be perfectly sat- isfied in doing so. I don't know about the safe part. They may be perfectly safe iu doing so, but 1 doubt whether they'd be satisfied to do so. Q. Why wouldn't they be satisfied? A. I don't know, sir; may be on account of the Winchesters. Q. You feel now like yon wouldn't like to answer too many questions about this matter? A. Well, of course I feel myself I am able to answer, but I wouldn't like to answer too many particular questions iu regard to the Winchester rifle company. (Printed record, page 206.) David Furgesou, on this subject, testified : Q. From what you know of the feeling in that county that has existed from the 12th of July up to the present time, do you think that the taking of 'depositions would be perfectly safe in Critteuden County ? A. I know it wouldn't be safe for Mr. Featherston, his attorney, nor his short-hand writer. (Printed record, page 209.) Phillips County. There is an agreement iu the record as to the vote of Phillips County, whereby it is agreed that the contestant is to have 57 more votes than were returned for him, and that the contestee is to have 5V votes stricken from his returned vote, and that the contestant is to be credited with a majority of 18 in Hickory Ridge Township. These numbers added to- pether make 132, which should be deducted from Gate's majority, and the vote would then stand thus : Gate's majority 592 Deduct the 132 Leaving Gate's majority 460 Cross County. In the township of Smith, in Cross County, Featherston is returned as receiving 15 votes and he proves up 29 votes. This overthrows the return, and leaves the parties to prove up their votes. The result is FEATHERSTON VS. CATE. 119 Featherston gets 14 more votes, and Gate, not having proved any votes, loses 84, making a difference in favor of Featherston of 98. The vote would then stand thus : Gate's majority 460 Deduct the 98 Leaving Gate's majority , 362 St. Francis County. From the township of Franks the contestee is returned as receiving 269 votes and the contestant 131 votes. The proof shows that all of the judges and clerks of election were Democrats; that the ballot-box was taken out of the presence of the United States supervisor at noon for an hour, and for an hour after the polls closed. This might have been enough to destroy the prima facie character of the return. But if it were otherwise, the testimony shows the return is false and fraudulent. The contestant, who is returned as receiving 131 votes, proves by 195 persons, whose names appear on the poll-book as voting, that they voted for him. (Printed record, pages 47-182; 229-75. The contestee who is returned as receiving 269 votes, has only proven up 112. There is hearsay testimony tending to show that 24 other persons voted for contestee. The names of the 24 persons whom it is said voted for coutestee are not on the poll-book. There is hearsay testimony tend- ing to show that 17 persons whose names are on the poll-book also voted for contestee. In Wallace vs. McKinley, Forty-eighth Congress, it is said : The vicious tendency of hearsay testimony in election cases needs no demonstra- tion. Wash Books, a colored man, swears there were 50 colored men voted for contestee in Franks Township. On cross-examination he was asked to name some of the 50 he saw vote for contestee. He finally named 8 ; out of the 8 named 4 of the names are not found on the poll-book; 2 of the remaining 4 swear they voted for contestant ; aside from this the witness is successfully impeached, and it appears in testimony he was expelled from the Masonic fraternity for stealing the money of the lodge. Upon the testimony contestee has only proven 112 votes out of the 269 returned for him. Hence, 157 votes should be deducted from the returned vote, and the vote would then stand thus: Gate's majority 362 Deduct 157 Leaving Gate's majority 205 The contestant was returned as receiving 131, and has proven 195. The difference between these being 64, and this amount should be de- ducted from the vote of the contestee. The vote would then stand thus : Gate's majority 205 Deduct 64 Leaving Gate's majority 141 Blackfish Township. In this township no election was held. The proof shows that 29 per- sons having the qualification of electors attended at the voting place on the day of the election for the purpose of voting for contestant, and 120 FEATHERSTON VS. CATE. that the judges of election would not open the polls. This township must pass under the rule laid down as to the townships of Furgeson and Idlewild, in Crittenden County, and can not be counted. Lee County. In relation to Independence Township the testimony is as follows: Milton Powell, being duly sworn : Quest. 1. Are you of lawful age? Yes. Quest. '2. Are you a resident of Lee County? Yes. Quest. 3. Are you a resident of Independence Township T Yes. Quest. 4. Did you vote on 6th day of Nov., 1888? Yes. 5. Whom did yon vote for Congress for the first Congressional district ? Ans. Mr. Featberston. Quest. 6. Did you work on that day to get votes for Mr. Featherston ? Ans. I did. Quest. 7. With what voters did you work, the Democratic or Republican voters ? Aiis. With the Republican voters. Quest. 8. What kind of tickets did you use in that election ? Ans. I used red tick- ets, such as I tile here as an exhibit. REPUBLICAN TICKET. Election, Tuesday, November 6th, 1888. For President, BENJAMIN HARRISON, of Indiana. For Vice-President, LEVI P. MORTON, of New York. Presidential electors. At large M. W. GIBBS, W. H. H. CLAYTON. First district GEORGE W. BELL. Second district A. M. MIDDLEBROOKS. Third dislrict-J. B. FRIEDHEIM. Fourth district CHAS. D. GREAVES. Fifth district SAMUEL MURPHY For Congress, First Congressional district, L. P. FEATHERSTON, of St. Francis County. [Note. The picket submitted is printed on red paper, with a design in blue on back. ] Quest. 9. What voters voted that ticket that day ? Aus. The Republicans voted that ticket ; it is a Republican ticket. Ques. 10. What was the result of your work ? Ans. I kept count of ninety-two of those Republican tickets that went out of my hands. Ques. 11. What was done with those tickets, ninety-two? Ans. They were voted. Quest. 12. How do you know they were voted ? Ans. I went with them to the bal- lot-box and saw them put in. Ques. 13. How many votes- were polled here that day? Ans. Something over six hundred. Quest. 14. What is the political complexion of this dist. ; which has a majority ? Ans. The Republicans have a large majority. Ques. 15. Can a majority of the colored people read and write? Ans. Majority can't read and write. Cross-examination. Ques. 27. Did you give out more than ninety-two tickets that day to voters ? Ans. I did. Ques. 28. How many tickets did you give out that day? Ans. I think one hundred and twenty or twenty-five. FEATHEESTON VS. GATE 121 Qnes. 35. Where were you standing when those ninety-two persons voted ? Ans. I went with each of them to the polls. Qnes. 3f>. Did they all vote for Mr. Featherston ? Aus. They all voted the red ticket like one liled ; I saw them put it in. Ques. 37. From the time yon gave them the ticket to the time they voted did any one have the opportunity to change any name on the ticket ? Ans. No, sir. Qnes. 38. Then you positively swear that those ninety-two persons voted for Mr. Feathers! 011? Ans. Yes, sir; that is my belief. Ques. 39. Are you positive or not that said ninety-two men voted for Featherston ? Ans. I am positive they voted for his name on the red ticket. Ques. 40. Are you positive that Mr. Featherston's name was not scratched on a single one of those ninety-two tickets you gave out? Ans. I am positive. Ques. 41. What time of day did those ninety-two men vote? Ans. From 9 a. m. to 5 p. m. Ques. 42. Do yon know of others voting for Mr. Featherston beside those ninety- two that day ? Ans. I do not. Quest. 43. Cau you give us some of the names of the ninety-two that voted your ticket? Ans. Yes, sir. Anderson Powell, Wm. Otey, Milton Powell, myself, Nelse Robinson, Jordan Woodson, Burl Woodson, Tom Wooclson, Jirnmie Turner and son ; can't think of bis name. I didn't take a list of the names, but when one voted I . marked it down. Ques. &7. About how many Eepublican votes were cast here on the 6th of Nov. last? Ans. There might have been two hundred and fifty or three hundred; may be not so many. Ques. 88. How many of that number voted for Mr. Featherston? Ans. Ninety-two, I know, cast that red ticket for him. Redirect: Ques. 1. In those elections in this township in which you have voted for past eight or ten years ; now, have the colored people voted together or have been divided? Ans. All voting together. Ques. 2. How have they voted in county elections? Ans. They have never taken any part in county elections, except a few. Ques. 3. Have they always taken a deep interest in national elections, and for Con- gress? Aus. Yes, sir; and governor. Ques. 12. Do you know of any Republicans that have been appointed judges of the election in this county since you have been voting? (Objected to.) Ans. No, sir ; I think not. Ques. 13. Can you think of a single Republican judge that waa appointed at the last election ? Ans. Can not. Ques. 14. Who has a majority in Lee County, the Republicans or Democrats ? A. Always heard the Republicans. (Objected to as hearsay.) Ques. 15. Did the rain keep the voters away on the last election, and was over six hundred votes a good turn-out in this township. (Objected to as leading.) Aus. Don't think the rain kept the voters away, and the vote was a good turn-out for the township. Ques. 21. Did any Republicans canvass through here for Mr. Featherston ? Ans. None as I know of. Ques. 22. If you have seen any thing in any papers since yon were on the stand, any reference to the frauds in theelections in LeeCounty, state it. Ans. I saw in a paper yesterday something in reference to it. Ques. 23. What paper did you see it in, and what was it ? Aus. I saw that there were thirty-seven hundred voters in Lee County, and fifteen hundred Democrats achieved a victory for that party. Qnes. 24. Who did the paper say made that statement? Aus. Judge Hutton, a member of the Democratic party and a member of the legislature. (Printed record, page 26 to 31.) There is, under the proof, circumstances and facts sufficient to im- peach the return aud put the parties to proof. It is satisfactorily proven that the township is largely Republican ; that 632 votes were cast, show- ing a full turnout; and the contestant is only returned 81) votes. The vote for Presidential electors was as follows: Harrison 435 Cleveland 196 Republican majority 9-39 122 FEATHERSTON VS. GATE. . Here, then, is a case where we have 239 votes not connted for any one for Congress, and this, too, in the face of testimony of witnesses saying the Republicans turned out well and were in the majority and voting the party ticket. The contestee claims that the contestant has admitted that he received 224 votes in Independence township and cannot now invoke the protec- tion of that rule where the return is overthrown and the parties put to proof. The view we take of the matter renders it unnecessary to pass upon the question of estoppel. What is claimed as a concession by the contestant, that the contes- tee received 224 votes in this township, is contained in the notice of contest on page 7, as follows : That at the precinct of Independence, in the county of Lee, in said district, at an election held on the 6th day of November, 1888,1 received 397 votes and you received 224 votes; that the election officers of said township, who are partisans of yours, through fraud or mistake, returned that I received 89 votes, and that you received 224 ; that the votes as thus returned by the election officers of said township were by the county clerk of said county certrlied to the .^ecretary of state, and by him laid before the governor of said State, and by him counted in determining the number of votes cast lor each of us for Representative in said district. I shall therefore claim on contest that I be allowed 308 more votes than were returned and certified for me from said township. This is not a concession that contestee received 224 legal votes, but is in the nature of a recital of the state of facts which he would be able to establish by proof. This was at the inception of the contest, when contestant may not have had full information. But be that as it may the recitals in the notice can have none of the sanctity and binding force of an agreement or stipulation and can not be construed into a concession. The contestee did not treat this statement as a concession that he re- ceived 224 votes, but on the contrary he filed the following answer: As to the precinct of Independence, in the county of Lee, I deny all the charges of fraud and mistake, and say that the votes were correctly counted, returned, and cer- tified. I deny that you received three hundred and ninety-seven (397) votes, but you received eighty-nine votes, and I received two hundred and forty-four (244) votes in said precinct or township. (Record, p. 17.) Instead of the record making a stipulation or concession that con- testee had received 224 legal votes, the number of legal votes was not admitted by contestant nor was the alleged concession accepted as such by the coutestee in lieu of evidence, but he set up a claim to 244 votes instead of 224 which he now claims as having been conceded. The parties having failed to agree upon the matter the question stands upon the proof, which shows that a fraudulent return was made by the election officers. Only one witness was examined in Independence Township. The wit- ness giving the testimony, ou leaving the stand was arrested for per- jury, and placed under $1,000 bond to answer to the State court. The attorney for contestee from that time on proclaimed he would cause the arrest of all persons who testified for contestant, if he thought they tes- tified falsely. After that time testimony was taken in relation to that township out- side of the county, and Joseph Kennedy, the chairman of the Repub- lican county committee, testified as follows : Int. Why do yon come to this connty to give your testimony in this case; is it be- cause of threats of violence there ? Aus. So far as I am concerned I am not person- ally afraid, but there have been threats of violence used against Featherston men. FEATHERSTON VS. GATE. 123 Jnt. Was not the first witness who testified in Lee Co. arrested and put under bond on account of his testimony ? Ans. Yes, sir. Int. Was not that witness also abased while under arrest by one Jacob Shane, and is not this a matter of common notoriety among the colored people of your Co. ? Ans. Yes, sir. Int. What position did this Jacob Shane occupy in the party prior to this last elec- tion ? Ans. He was chairman of the Co. central committee, Republican. Int. Why has he been deposed from that position ? Ans. On account of the man- ner in which he had previously handled the Republican election tickets. Int. Is it not generally understood by the Republicans of Lee Co. that Jacob Shane has proven treacherous to his party ? Ans. Yes, sir. Int. Of what nationality is this Jacob Shane ? Ans. He is a Jew. Int. How were you first induced to become favorable to Mr. Featherston ? Ans. By the representations of this Mr. Shane. He made a speech and endorsed Mr. Feathers- ton and urged the colored people, as there was no Republican in the field, to support " 'r. 1'Vatherston. He was for Featherston up to the day before the election. Int. What kind of a ticket was Mr. Featherston's name on? Aus. It was a kind of a red ticket with purple back. Int. Was that the Presidential Republican ticket, with the President electors all on it ? Ans. Yes, sir. lut. Is it not a difficult matter to persuade a colored man to go back on his national ticket? Aus. Yes, sir; it is a difficult matter. Int. Was it generally understood by the whole Republican party of Lee Co. that they should support Featherston ? Ans. Yes, sir. Int. What is the political complexion of Independence Township? Ans. Repub- lican by large majority. (Printed record, page 47.) T. F. Carter, being first duly sworn, deposes as follows : Int. What is your name, age, and residence ? My name is T. F. Carter; age, 27; and residence Marianna. Int. How long had you lived in the county before the November election ? Ans. I had lived in that township 10 mouths before that election, and in the State since 1885. Int. Did you vote in that township? Ans. Yes, sir. Int. For whom did you vote for Congressman, Cate or Featherston? Ans. Feath- erston. Int. What are you, Republican or Democrat ? Ans. I am a Republican. Int. Was Featherston's name on the Republican national ticket? Ans. Yes. sir; it was. Int. What is the political complexion of Independence, the one in which you voted ? Ans. I know it to be a fact that is against my interests to state any further. Int. Why is it against your interests to testify in this cause? Ans. My friends ad- vised me, in view of my condition, and that as I had a little property there, to have nothing to do with the contest. Int. D.o you feel that in view of your personal and property interests there that it would be unsafe for you to testify in this case ? Ans. Yes, sir. Int. What position did you occupy on the day of election by appointment? Ans. Several told me since that I was appointed supervisor, but I knew nothing about it. Int. Were the parties who advised you as to your safety Republican, or Democrats, and did they seem to be advising you for your personal welfare ? Aus. Yes, sir ; they advised me for my future living. Ins. Is it not a fact that you left home the night after you were subpoenaed to tes- tify in this case? Ans. Yes, sir; upon the advice of my friends I went away, as I didn't feel safe. I was not afraid that the Republicans would molest rne. I know about how the vote was; but I don't care to testify. Int. Did you take a very active part in the election and work very hard for your ticket? Ans. Yes, sir; I did. Int. Are the colored people down there generally intimidated ? Ans. I was afraid to testify there, and other colored people were influenced by the same fear. (Printed record, page 48-9. J. H. Cox, being first duly sworn, deposes as follows: Int. What is your name, age, residence, and occupation ? Ans. J. H. Cox is my name; my age is 25; m'y residence Independence Township, Lee Co., Ark. ; I am a schoolteacher; I have been living 12 months in this State, 6 months in Lee Co., and 30 days in Independence Township. Int. What are your politics? Aus. I am a Republican. Int. Has the arrest of Milton Powell for testifying in this case had the effect of deter- ring others from testifying in the case ? Ans. Several have told me that they would not testify because they were afraid. 124 FEATHERSTON VS. CATE. Int. Why did yon not return to testify after you had promised me to do so ? Ana. I was advised not to come on account of the feeling in this matter. A friend of mine in- formed me that Milton Powell had been arrested and said he was afraid I would bear- rested and advised me to stay away, which I did. (Printed record, page 49). The conduct of the contestee's attorney could have but one object and effect, and that was to intimidate other witnesses. There is direct tes- timony from one witness, and no attempt was made to impeach him, showing that 92 votes went into the box for the contestant. The re- turns show 89 for Featherston and 224 for the contestee. There is enough evidence to impeach the return and put the parties to proof. The friends of the contestee in Independence Township, like his friends in Crittenden County, prevented full proof being made, and can not complain if we apply the rule as to Independence Township that was applied to Scanlau and Cat Island, which we do. Full proof of the vote was not allowed to be made, and in such a case he who prevented it should suffer, if any one. We have no hesitation in adopting this rule in relation to this town- ship, because the contestee knew of the proof made by the contestant. He could have taken proof and shown his true vote. He elected to rely on intimidation of contestant's witnesses, and must abide the conse- quences of his election. He was at liberty to have shown that 319 of the persons voting at that election did not vote ior either candidate for Congress, and thus have explained why it was that the contestant ran behind the Republican electors, but he has not done so. The result is, that the contestee must lose 224 votes returned for him, and the contestant must be allowed 3 more votes than were returned for him ; these two amount to 227, for which the contestant should re- ceive credit. The vote would then stand thus : Gate 141 Featherston 227 Making a majority for Featherston of 86 There is objection to the testimony taken before Avery, a notary public at Memphis, Teun., which testimony we have admitted and con- sidered as competent in arriving at a conclusion in this case. The ground of objection is, that the contestee did not have notice of the taking. The contestee does not deny that Berry, the person upon whom it is claimed notice was served, was his attorney, but his claim is the technical one that he was not his attorney for taking depositions outside of Crittenden County. The technical character of this objec- tion is still more apparent when it is remembered that the record shows that Bexry was employed to take the testimony relating to Crittenden County. It appears from the testimony objected to that contestant, with his attorneys went to Critteuden County, and there met Berry, the attorney of contested; that before going there an understanding existed that Berry should act as notary public to take the depositions ; that in the face of this agreement he declined to so act; that a justice of the peace was asked to take the testimony and refused ; that there was danger of violence, and threats were made calculated to produce the belief that bloodshed would follow; that under that state of facts Berrj was noti- fied as the attorney of contestee that the testimony in relation to that eounty would be taken at number 59 Madison st., Memphis, Tenn., at 9 o'clock on February 25, 1889. We think under this state of facts notice to Berry would be sufficient, for it related to the taking of the very testimony which he was em- FEATHEESTON VS. GATE. 125 ployed to take. Ifc will not do to say that Berry's employment ended when contestee's partisan friends had succeeded in preventing the tak- ing of testimony in Critteuden County. W. B. Eldridge (p. 226, 227) testifies: Q. Did you all go with Berry, the lawyer of Gate, and did he say anything about acting as notary public ? A. He said ho would act as notary public, which he after- wards refused to do. Q. Did you all take any depositions there ? A. We did not. Q. What was the reason for not taking depositions? A. We could not get a notary public ; there was a magistrate there, but he refused to act, and Mr. Berry refused, contrary to his promise and our expectations. After detailing his treatment at Crawfordsville, in Crittenden County, in response to a question he states : I notified L P. Berry, the attorney of Mr. Gate, that Mr. Featherston would take proof iu Memphis, Tenn., at my office, on the Congressional contest ; and on Febru- ary ~;4, Walsh (an attorney) and myself both notified Mr. Berry that we would begin taking proof at 59 Madison st., Memphis, Tenn., at nine o'clock, February 25, 1889. Contestee produces an exparte affidavit from Mr. Berry, his attorney, denying notice to take depositions at Memphis, and now asks that these depositions be suppressed, and this request was made for the first time after the printing of the record. The act of Congress of March 2, 1887, provides among other things that Before the record is printed the Clerk of the House shall notify the parties to be pres- ent at a day named at the opening of the testimony, and of agreeing upon the parts thereof to be printed; that the depositions shall be opened, in the presence of the parties or their attorneys, and that such portion of the testimony as the parties may agree upon shall be printed; that in case of disagreement between the parties, the Clerk shall decide what portion of the testimony shall be printed. The intent and object of this statute is obvious. Had it been fol- lowed the testimony now complained of might not have appeared in the printed record. Had it been followed, the objection of the contestee, now interposed, would have been made known and the contestant would have been placed in a position to elect whether he deemed the testimony of sufficient importance to make application to the committee or the House for permission and time in which to retake it. Instead of pursuing that course no objection to the printing of the testimony now objected to appears to have been made. It is said that this testimony had not been filed at the time the parties appeared before the Clerk of the House. It does appear from the Clerk's record " that on account of the non-receipt" of certain packages of testimony for contestant he was granted further time in which to file testimony. It is not improbable, indeed it is probable, to say the least, that the attention of the contestee was at that time called to the character and contents of the testimony the contestant was thus granted leave to file. In the case of Lowry vs. White, Fiftieth Congress, after the record was printed, motions were filed by both parties during the considera- tion of the case by the committee to exclude certain portions of the testimony, and these motions were denied, and the attention of the par- ties was called to this statute, and in the syllabus this language is found : No part of the testimony submitted in a case will be suppressed where the parties fail to take advantage of the statutory provisions allowing parties to agree upon what portion of the record shall bo printed prior to the hearing of the case. In the case of a judgment by default the court will not set aside the judgment unless the defendant can show a good defense to the action. 126 FEATHERSTON VS. CATE. In the case of a decree pro confesso the decree will not be set aside unless a meritorious defense is shown. If the coutestee had filed a motion to suppress the depositions, on the ground he was taken by surprise, and alleged that he could disprove the state of facts shown by them, he would stand in a much better light than he now does. He now makes an objection which should have been made under the act of March 2, 1887, before the record was printed. After the record was printed he must have had knowledge of these depositions. Had he then filed a motion to suppress them lie would stand in a much better light, but he failed to do so and does not tender any excuse now for that failure. Had he notified the contest- ant, on the receipt of the printed record, of an intention to file a mo- tion to suppress these depositions, if such was his intention, he would have performed a commendable act, and would have at that time placed the contestant on notice. Instead of doing so, however, he re- mained silent until after contestant filed his brief, and then, instead of filing a motion to suppress, contented himself until he could afterwards raise the question of a want of notice. Instead of coming here and in- sisting that he has a meritorious defense to the matters charged in re- lation to Crittenden County, and asking time to establish that defense by proof, he simply asks us to suppress the testimony taken by the con- testant, showing and tending to show fraud, violence, and intimida- tion, before and at the election, and threats and danger of violence to those who proposed to make proof of the frauds. It appears from the testimony of Eldridge, the attorney of contestant, that Berry, the attorney of contestee, was notified of the time and place at which the contestant proposed to take depositions, and it appears that a copy of the printed record was sent to the contestee on the 15th of September, 1889. The long silence of contestee on the question of notice, after he re- ceived a copy of the printed record, and the neglect to exercise his right to object before the record was printed, and no tender of proof made to contradict what is shown by the testimony, are facts from which the inference arises that the testimony can not be contradicted, and is in the nature of a tacit admission of the existence of the state of facts shown by the depositions. We find these depositions in the printed record, and find the cou- testee inade no objection to them before they went there ; we find that after they had appeared in the printed record he did not file any ob- jection or protest with the Clerk of the House because they were placed there ; we find that after he saw them in the printed record he failed to notify the contestant that he would object to them. Being a lawyer of experience, and having been a judge, contestee's silence and failure to offer more tangible defense than mere technical objections can only be accounted for by the assumption that he has no real defense. In view of these facts we are of opinion that the testimony should not be suppressed. We are not deciding that testimony may be taken without notice, though there are authorities which, under the facts of this case, would justify the admission of ex parte evidence. We might quote to sustain even this view, from Bisbee vs. Finley ; Bu- chanan vs. Manning ; and Thoebe vs. Carlisle et. al. ; but as we do not decide on the question of ex parte evidence, in the admission of the depositions in this case, it is unnecessary. Under the broad provisions of the Constitution, making each House of Congress " the judge of the elections, returns, and qualifications of its own members," it would seem that we are not bound by the FEATHERSTON VS. CATE. 127 strict rules of evidence known to the " common law." But we are not deciding that question. What we are deciding is, that where deposi- tions are found in the printed record, or where they appear in the printed record, and no objection is made to the Clerk of the House or to the opposite party, the party failing to object at the earliest oppor- tunity, or at least within reasonable time, so as to put the opposite party on notice, will be deemed to have waived all question of notice, especially where there is no offer of proof 1o show a different state of facts than those shown by the depositions. As already shown by the figures given, we are of opinion that the proof under the law clearly shows that contestant Featherstou was elected by a majority of 86 votes. The committee therefore report the following resolutions and recom- mend their passage : Resolved, That W. H. Gate was not elected as a Representative to the Fifty-first Congress, from the First Congressional district of the State of Arkansas, and is not entitled to the seat. Resolved, That L. P. Featherston was duly elected as a Representa- tive from the First Congressional district of the State of Arkansas to the Fifty-first Congress, and is entitled to his seat as such. VIEWS OF THE MINORITY. The depositions taken without legal notice should not be considered. The charges of fraud are not sustained by the evidence. H. Mis. 137 9 129 VIEWS OF THE MINORITY. Mr. OUTHWAITE, from the Committee on Elections, submits tlie fol- lowing as the views of the minority: The total number of voters in this district is, in round numbers, 40,000, of which 25,000 are whites and 15,000 negroes. Twenty-two thou- sand are Democrats and 18,000 Republicans. It has been represented in Congress tor the last ten years by a Democrat. The Republicans during that time virtually conceded it to the other party by making a nomination for Representative in Congress upon only two occasions. At a more recent State election for three judges of the supreme court, held April 2, 1889, the vote in this Congressional district was, for the leading Democratic candidate, 9,801, and for the leading Republican candidate, 8,021. The majority for the Democratic candidate was about 1,780. No one has questioned the legality or fairness of this election, nor has any one claimed that there was any fraud or intimidation any- where throughout this Congressional district, though the total vote cast was not quite 18,000. At the November election in 1888, 30,000 voters went to the polls and voted. On the 21st of that month the governor of the State of Arkan- sas, in pursuance of law, made proclamation, wherein it was alleged that W. H. Gate received 15,570 votes, and L. P. Featherston received 14,228 votes ; that the former received 1,348 more votes than the latter for Representative in Congress from the First Congressional district of Arkansas. This majority is conceded by the contestant to have been shown on the face of the returns certified to the governor, in his notice of contest and in his brief. There are seventeen counties in the district, and fraud, mistake, or improper conduct, is charged in fifteen of them. No testimony is taken or attempted to be taken except in four. The record shows that but seventeen days of the forty allowed by law (Rev. Stats., sec. 107) for taking his testimony in chief were occupied by the contestant, and that he did not avail himself in more than one instance of that other provision of the law, that testimony in contested-election cases may be taken at two or more places at the same time." (Rev. Stat., sec. 109.) No rea- son or excuse is given by contestant for his failure to attempt to prove the allegations of his notice and statement in some forty paragraphs concerning the election in twelve of the fifteen counties of the district. The fair inference is that there was no proof to be obtained to support his charges of fraud or misconduct in those twelve counties. As to Phillips County, there is an agreed statement of facts (rec., pp. 183-4). admitting certain mistakes and irregularities by which it is shown that in Hicksville precinct the contestant is entitled to 33 votes and the contestee to 15 votes, which were not returned to the secretary of state for them respectively. It is further shown by said agreement that in Lake Township contestant received 127 votes and contestee re- ceived but 10 votes; but that in making the returns of said election to 131 132 FEATHEKSTON VS. GATE. the county clerk, the judges of said election by mistake certified that L. P. Featherston received 70 votes and W. H. Gate received 67 votes, which error was certified to the secretary of state. The correction of these errors would increase the vote of contestant 90 votes and decrease the vote of contestee 43 votes, reducing the majority of contestee by 132 votes. There is another part of said agreement that will be considered farther on in this report. In Lee County, the testimony relates to the votes of but two town- ships. Independence and St. Francis. Apart from the deposition of W. T. Derrick, who simply furnishes, as county clerk, certain names taken from the lists as returned to office of the votes in Independence, Council, St. Francis, and Walnut Townships, there is the testimony of but one witness in the record, which was taken under notice. The election at Independence precinct was conducted fairly, without any intimidation or disturbance of any kind whatever. The integrity, good character and conduct of the officers of the election is not directly attacked anywhere in the record. It is ridiculous to think that Milton Powell's testimony should overthrow the sworn return of the five elec- tion officers. The testimony tends to show there were present also two Femoral supervisors. The official return from this precinct, it is claimed by contestant, gave contestee 224 votes, and contestant 89 votes. Con- testant claims that he received 397 votes at this precinct, but that through fraud or mistake only 89 were returned as cast for him, at the same time admitting that contestee received 224. Contestant also averred that the election officers were partisans of the sitting member. To sustain his claim he examines as a witness Milton Powell. Powell testifies, after having identified a Republican ticket, and stat- ing that it was printed on red paper with design in blue on the back, as follows : Ana. 10. I kept count of 92 of those Republican tickets that went out of my hands. Ans. 11. They were voted. Ans. 12. I went with them to the ballot-box and saw them put in. He says : Ans. 30. Rainy day ; after it commenced it rained steadily the remainder of the day. Ques. 32. Were yon in the rain 'or under shelter ? Ans. Part of the time under shelter in front of the court-house, and part of the time in the rain ; I had an um- brella. The state of the weather being very bad that day at this precinct and throughout the district, as is shown by other testimony, accounts to some extent for the falling oft' in the vote ; but Powell's testimony on that subject here is introduced to reflect upon the accuracy of his count made under such unfavorable circumstances. He further testifies that he does not know of others voting for Mr. Featherstou, though he gave out 120 or 125 Eepublican tickets. In his answer No. 13, he says that something over 600 votes were polled there that day, and [Ans. 14J that the Republicans have a large ma- jority of this district. In answer 52 he gives his reason for saying this, but in answer 54 he says : The county elections for the past six or eight years, it has been going Democratic. And | Ans. 55 j : It may hare been ten years ; but I am positive for six or eight years. He further testifies that Jake Shaul, the chairman of the Eepublican FEATHERSTON VS. GATE. 133 committee, and Joe Roberts and Samuel Overtoil, who said they were Republicans, worked for the election of Mr. Gate, the contestee. Ques. 82. Did you see anything like intimidation or bulldozing among white or colored ? Ans. No, sir. Ans. 85. I did not say that there was any fraud in this township. I just saw in the papers where such things were done in other counties. Ques. 86. Have you ever seen any account in any paper, or heard from any source whatever, even an intimation of fraud in the election in this township ia November last ? Ans. No, sir ; I have not, as I know of. The next two questions and answers will show what reliance is to be placed upon his previous testimony that something- over GOO votes were polled in the township that day. Ques. 87. About how many Republican votes were cast hero on the 6th of Novem- ber last ? Ans. There might have been 250 or 300 ; may be not so many. Ques. 88. How many of that number voted for Mr. Featherstou ? -Ans. 1)2, I know, cast that red ticket for him. This witness also testifies that of five candidates for governor since he has been a voter but one Republican had carried that township, and the Democrats the balance of the time. He shows that there was considerable disaffection among the Republicans ; that the chairman of the committee was actively at work for the election of Mr. Cate, and that this support of the Democratic candidate for Congress had been so pronounced and so effective that he had recently before the time the witness was testifying been removed from his position as chairman, and another person appointed in his stead. He names three other promi- nent Republicans who were at these polls working for the election of Cate. At the conclusion of his testimony, this witness was arrested for per- jury in testifying that 92 votes were cast under his immediate observa- tion for Mr. Featherston, in the face of the returns of the election officials. It is claimed on the part of the contestant that his witnesses were thus intimidated and prevented from proving his case in Lee County. It will be observed in the notice to take depositions at the time and place where Milton Powell and W. T. Derick were examined that no other names are included in the notice of the witnesses for contestant. There is nothing in the record to show that at that time and place contestant proposed to examine other witnesses as to the conduct of the election, or at any other time and place. To sustain this pretext of intimidation, preventing the taking of testi- mony, there was taken, without notice to the contestee, and in another tqwnship, the testimony of two other residents of Independence Town- ship, Lee County. In the testimony of these two men you will not find one word relating to the election or what occurred there on that day. The witnesses Carter and Cox claimed that others had been deterred from testifying in the case on account of the arrest of Milton Powell, and that they had apprehensions if they should so testify. They say as much as they possibly can of this character, well calculated to offend their political opponents, but present no facts to show that the election itself should be called in question. It is therefore not necessary to dwell longer upon the question as to what shall be done with the vote in this precinct. It should remain undisturbed as it was certified by the sworn election officers to the clerk of the circuit court of that county, and by him certified to the secretary of state. No testimony was offered tending to show that the officers of the election were not appointed according to law, and the Republican Federal supervisor of election, although he claims not to have known of his appointment, was at the election and saw nothing of which he could complain. 134 FEATHERSTON VS. GATE. The next precinct to be considered is St. Francis Township, Lee County. With regard to the vote in this township the record does not show that any testimony was ever attempted to be taken there. Notice was given by ooe of the attorneys of contestant that testimony would be taken before a notary named Leary at Terrell and Bond's store on Feb- ruary 19. Attorneys for both parties were there at the time. No wit- nesses were examined. None were called or sworn, and no adjourn- ment of the hearing was had. No excuse is given anywhere for the failure to do these things. Then and there ended all legal attempts to make any proof concerning the vote in this township. In open and flagrant violation of the provisions of the law with regard to the taking of testimony in such cases, the contestant, in the absence of contestee and his attorneys, and without his knowledge, secretly and surrepti- tiously procured certain statements apparently made under oath before an officer not authorized by law to take testimony in contested election cases. One of these witnesses is made to say that at the election on No- vember 6, at this St. Francis Township, Mr. Featberston's name was on the Republican ticket, and that all the Republicans he saw vote voted the Republican ticket. Another, in answer to the question, " Did all or nearly all the Republicans vote that ticket f says, " Nearly all I seen voted that ticket." A third, in answer to the same question, re- plies, ' k I think so." This third witness, 0. B. Brown, was the Repub- lican supervisor of election, and tells a queer story about the ballot-box being two hats, and that wheu the judges went to dinner one of the clerks took the ballots and put them in a large envelope and placed it in his pocket *' and went about one and a half miles and ate their dinner;' 7 that the ballots were not counted at the polling place, but at the residence of W. L. Blacher, about one mile and a half away. Neither one of these witnesses was asked a word about the politics of the judges or clerks who thus misconducted the election. As the testimony of G. T. Thompson was taken without notice, and adds to that of the other two only that there was none of his party judges or clerks of election, we give it little weight. If this vote were cast out as attainted by fraud the result would not be changed, because the returns from the precinct give each candidate an equal number of votes. There is no testimony upon which to base any different conclusion. There never was any op- portunity for the contestee to take testimony contradicting this so-called testimony. Surely it is not seriously contended that any change should be made as to the vote of this township. The contestant or his attorneys, in the case of Spring Creek Town- ship, in Lee County, instead of taking testimony to sustain his notice and statement (record, page 7, section XXI), secretly and illegally procured so-called testimony to prove that he was prevented from se- curing such proof by intimidation. Why did he not interrogate the very witnesses whom he had taken out of their own county on the pre- text of this intimidation as to the matters he had set out in his notice of contest. These men claimed to have been at the election, and ought to have been at the election and ought to have known something of the truth or falsity of his allegations. He sought to prove by them that the negroes feared to appear as witnesses because the attorney for contestee had said, k - If they swear lies here, 1 will put them in the pen- itentiary." The contestant's attorney, in his brief, gravely says: It was impossible to get a witness to go on the stand and testify, with the opeu declaration beiug made that he would be arrested for perjury if he testified. FEATHERSTON VS. GATE. 135 He should have said "testified falsely." He contends it was useless to tell them that the State courts had no jurisdiction of such an offense. What a pity that he could not persuade those whom be seemed to have wished to do so that it was not a crime to swear falsely in a contested-election case. Smith Township, Cross County. In his notice contestant makes the following claim as to this township: That at the township of Smith, in the county of Cross, in said district, at an election held op the 6th day of November, 1888, 1 received for Representative one hundred and fifteen (115) votes and you received eighty-four (84) ; that the election officers of said township, who are partisans of yours, through fraud or mistake returned that you re- ceived eighty -four (84) votes and that I received fifteen (15) votes ; that the votes as thus returned were by the county clerk certified to the secietary of state and by him laid before the governor and by him counted in determining the number of votes cast for each of us in said district. I shall therefore claim on contest one huudred more votes in said township than were returned for me. He offers no proof concerning the vote which was certified to the county clerk by the election officers and by him certified to the secre- tary of state. There is no evidence showing any reason why the testimony with re- gard to this precinct should not have been taken in that precinct, or at least in that county. Yet twenty nine men are called into St. Francis County as witnesses to testify concerning said election. Not one of them gives any evidence of frauds in the conduct of this election. Nearly every one of them is asked directly, " Were the judges of elec- tion in your township your political friends or enemies?" Not one of them made any reply to this question. Not one of them says the judges were partisans of the coutestee. No proof is given that they were not appointed according to law from the two parties. Their integrity and their proper conduct of the election is nowhere assailed by direct evi- dence. Without laying any foundation whatever to impeach the official returns of these election officers, made under oath, contestant proceeds to take the testimony of these twenty-nine men as to how they voted. Only six of them can read or write. The Kepublicau tickets did not have Mr. Featherstou's name on them at this precinct. Two of the witnesses, colored men, say that they made out the tickets, and wrote Featber- stou's name on for the others. There is a suspicious uniformity in the answers of about twenty of tnem when the question submitted to them was whether they voted for Gate or Featherston. The answer generally ran: " Featherstou. Harrison for President." It is like an admission that they did not actually recollect having voted for Featherston, or did not have much interest in his election. One of them saying he could read a little, and saw Featherston's name on his ticket, being shown V7. H. Gate's name, called it " Feather- ston." Another said he did not vote for Congressman, but for Harri- son and Morton. A third answered. "I said I voted for Gates." No testimony is given to show that coutestee did not receive the full num- ber of votes returned for him. The vote of this township should not be disturbed upou such a shallow showing. Blackfish Township, St. Francis County. The notice of contestant claims that at this township, by the fraudu- lent, illegal, and unlawful conduct of the judges of election of said township, 53 voters of said township attended at the place where such 136 FEATHERSTON VS. GATE. election was to be held, at the proper time for the purpose and with the intention of voting- for him, but were prevented from doing so by the fraudulent, illegal, and unlawful conduct of said judges of election. It will be observed that contestant does not claim that the election officers at this precinct were partisans of contestee. The proof shows that two of the judges were Republicans, Mr. Worley, who was sick and has since died, and Ruffin Carr, a negro. The ballot-box there was in the hands of a Republican Federal supervisor, a negro, named Font [or Fountain] Young, and he and Carr kept the ballot-box all day. Worley said his wife was sick and he could not leave home. The roof had been taken off the house where the election was to have been held, some weeks before, to be repaired, and had not been replaced. No other house near could be had in which to hold the election. Two are men- tioned, in one of which there was cotton, and the owner objected to having an election in his cotton store-house, and the other was a mere shelter with no floor. Mr. James, the Democratic judge, was in bad health and could not sit in the rain. It would have been impossible to write the names of voterson the poll-books, keep tally-sheets, or, in short, conduct an elec- tion, and there was no force, threats, violence, or intimidation of any kind used or hinted at to prevent any one who might have wished to hold an election at Blackfish that day. Mr. James told one of the Republican judges to get his judges and clerks and hold an election it he wanted to. Contestant calls some twenty witnesses. They differ materially in their evidence as to the number of voters at the polls, and their pur- pose. From 25 to 40 voters were there, some 15 of whom were whites and Democrats. One witness says, u I counted 35 colored people that were here and coming. I counted 20 right here at the house." " There was about 30 people, pretty much all colored people," says another. In reply to the question, " If you did not vote, why did you not vote *?" their answers ran about as follows : "I come here to the school-house to vote, but the judges would not serve." One witness said, " I started to the school-house. It was rain- ing hard. I could not get there. I am a Republican." Another said, u 1 started but could not get here. I was walking and it was raining." Still another said, " I understood a few days before that the judges re- fused to serve, and thought there was no use to go.'' No one else sus- tains this notion. Here are some specimen answers to the question : For whom would you have voted, Cute or Featherstoii ? For Harrison and the Republican ticket and whatever was. I meant to vote the Republican ticket. Most of the colored people said they were going to vote the Republican ticket. I wanted to vote for Featherstoii for Congress and Harrison for President. I am a Republican and wanted to vote for Harrison. I am a Republican. I do not know who they were going to vote for for Congress. I heard some say they wanted 1;o vote for Harrison, and some say they wanted to vote for Cleveland. Pretty well all of them said they would vote for Harrison. There was two or three colored people said they would vote for Cleveland. (See record, from page Co to page 76). These answers are significant in the frequent omission of Mr. Feath- erston's name, when it is known that there was a Republican candi- date for Congress voted for in this contest of the name of W. R. Bar- rett. It was asserted in the committee-room by Mr. Gate, in the pres- ence of Mr. Featherston, and not denied, that he (Featherston) was a Democrat two years before this time, and had been previous thereto. FEATHERSTON VS CATE. 137 Is it not absurd to talk of sustaining the proposition of the, contestant with regard to the vote of this township ? Attention is next directed to Frank Township, St. Francis County, where contestant makes an elaborate and desperate effort to overthrow the returns of the election officers. In his notice, speaking of this township, he says : I received 271 and you received 129, bnt the election officers of said township, who are partisans of yours, through mistake, or fraud, or otherwise, returned that you received 269 votes and that I received 131. Contestee brings as witnesses the judges and clerks of election, who account for the ballot-box during the entire period of the election, ex- plain minutely how the election was conducted and returns made, etc. (Record, pp. 250, 259, and 76.) He brings the Democratic supervisor, Mr. Davis, who testifies (p. 254) to the regularity of the election. He brings Andrew McGlown, the Fed- eral supervisor for the Republican party, himself a Republican, who shows by his evidence that he was watchful and diligent in the dis- charge of his duty; that the box was not out of his sight but twice for not exceeding three-quarters of an hour, and then it was locked and he had the key ; that when they went to dinner the Democratic supervisor had the box and he had the key : at supper he had the box and Mr. Davis the key. While the Democratic supervisor had the box at din- ner it was locked in a room, and Mr. McDonald, one of the judges of election, had the key of that room. There was no chance with the Dem- ocratic officials to tamper with the ballots by taking out those which had been deposited and numbered to correspond with the name of the voter and substitute others properly marked in their places. To have done this it would have been necessary to break the lock, which was not done, or to have had another key made. This election was held four miles in the country, where there was no locksmith or gunsmith to assist in perpetrating such a fraud. Contest- ant introduced proof tending to show that it was easy to duplicate a key by having one made in a few minutes on the day of the taking of testimony. It may be sufficient to say that there was no testimony tending to show that any such fraud had been perpetrated upon this ballot. The testimony shows no opportunity and no suspicious circum- stances indicating any design upon the part of the officers of election. The regularly appointed officers for this precinct were not present at the time to open the polls and did not qualify, so that officers were chosen from the citizens and by them. No testimony is offered as to facts of their election, showing that they were not chosen properly nd legally, although it is claimed that the judges were all Democrats. Republican negro who had been appointed did not come until it was late. The election law of the State of Arkansas is as follows : If the court shall fail to * * ' appoint judges of election, or those appointed fail to act, the voters, when assembled, may appoint the judges, who shall, in all re- spects, perform the duties of judges of election as required by law. (Mansfield's Digest of Laws of Arkansas, section 2650.) And it is further provided that The judges of election appointed by the county court, or chosen by the assem- bled electors under the provisions of this act, shall, if practicable, be from differ- ent political parties, so that each party may be represented, and they shall, in addition, * * * be able to read and write. 138 FEATHEESTON VS. GATE. McGlow testifies (page 76) : Mr. Jack Davis called attention of the judges and clerks, who were there, that it was right as the other jndges and clerks * * to elect or appoint judges in their places, and they went ahead and did so. There were only Mr. Hill, Mr. McDaniel, and Mr. Grey, and Mr. Davis, and a few other men were all that were present at this. None of the judges appointed by the county judge were present. Jack Bruyn, a colored man, was one of the regularly appointed judges. I don't know what time he came. If there had been Republicans present qualified to be judges would not this witness have so testified ? None were present none could be chosen. No violation of law is proven. It was shown that the box was out of the sight of one of the federal supervisors about three- quarters of an hour at noon and again at supper time ; but never out of sight of both federal supervisors McGlown, this Republican negro Federal supervisor, testifies that he saw the ballots as they were handed to the judges and deposited in the box as they were received ; that he did not change or alter the ballot of any elector, and did not suffer his associates to do it as far as he knows ; that the ballot-box was in his sight all the time the votes were being deposited, and also when counting out; that he examined them as they came out of the box; they were counted correctly; he supervised the count of the ballots by the clerk and they were correctly tallied ; that the election was conducted fairly and impartially so far as his knowl- edge about it was. The number of ballots taken from the ballot-box corresponded exactly with the number of names upon the poll-books. He never discovered any evidence of the ballot box having been tam- pered with when out of his sight and never saw but one key and did not know of any other. The testimony of the two white judges sustains the fairness, impartiality, honesty, and accuracy of the whole election pro- ceedings at this precinct on November 6, 1888. The contestant was present by counsel and cross-examined the wit- nesses when this testimony was taken. Nowhere and at no time has he offered any testimony tending to controvert the testimony of these election officers upon the facts to which they made oath. In contest- ant's brief, page 8, we find the followiug concerning this precinct : We do not claim that the box shall be thrown out or any of the voters disfranchised. What we claim is that the ballot-box was exposed, and that the return does not show the true vote, and that in such a case each party can only have the number of votes he proves up. We concede that poll-books duly certified and returned are pritna facie evidence of the truth of their contents, and that the burden is upon the con- testant to show that they do not speak the truth. With this burden upon himself to destroy the validity of this elec- tion, the contestant has taken the testimony of 195 men whom lie claims to have voted at that election and for him, although the preliminary proof has not made a shadow of a case for such a course. The county clerk of this county a Republican was called and ex- amined, February 7, 1889. In his custody were the ballots of this elec- tion, each one numbered to correspond with the number of the voter on the poll-book. They were the primary and best evidence as to how the voter voted. No examination was made of this testimony, which had been in the safe-keeping of one of the official partisans of contestant from the day of election. If the ballot-box had been opened it would have disclosed one of two things, that claim of contestant was ground- less, or that the judges had made a fraudulent return. Coutestee could not safely examine this witness of the contestant. It should be borne in mind that in this precinct and the district there were two elections in the fall of 1888, one in September; and this one under examination in November, and that the testimony of these wit- FEATHERSTON VS. CATE. 139 nesses as to how they voted, from whom they received their tickets, and what kind of tickets they voted, is taken in February, 1889. One of the witnesses, Andy Starks, says : I ain the man who issued all the tickets. I had one man to help me issue. I can't read to amount to anything; cau't write. I issued the white tickets before dinner and the red ones after dinner. The voters in their testimony tell of getting several different colored tickets from at least ten other persons. Many of the men whose names are not on the poll-books testify to having voted for a candidate for Congress. Some swear that others voted that day whose names can not be found on the poll books. Oue says he did not vote; yet he is recorded on the poll-books of that day. Some swear they voted a red ticket in the morning, when none were present to be voted, and one that he voted a blue Republican ticket before noon. Some say they voted green tickets; some yellow. One was positive that his Republi- can ticket was green or blue, and not white or red. More than one gave names of candidates as being on their ticket that were not upon either the Republican or Fusion ticket in November, but may have been on the county ticket in September. Some could not tell whether they voted for a Congressman at the September or the November elec- tion, or at some other time, and some did not know who they voted for for President. The names of many who swear they voted are not found on the poll-book. One witness testifies that the Democratic ticket was blue on both sides. Several of the voters say that that was the color of the tickets they got from J. U. Jackson that day and voted them. Six of the men fix the time at which they voted for Featherston in a different mouth from November. These facts are mentioned to show that very much of the evidenceis weak, contradictory, and uncertain. In some instances, what the wit- nesses should say or do wh^n examined appears to have been put into their minds just before they were called. Clearly is it shown that from the lapse of time many of the witnesses confused the September and November elections, and were not able to recall correctly whether they attended one or both, and what occurred at such time or times as they were there. It is impossible from a careful examination of the testimony to show that Featherston received a single vote more than was certified for him at that precinct, ta wit, 131. No pretext for disturbing the re- turns from this township exists. Before passing from this county, as reflecting upon the fairness of the returns, it may be of value to notice the figures for the September elec- tion for governor, and compare the votes for President on the Oth of November with the votes for Congressman. For governor, September election, St. Francis County, James Eagle, Democrat, received 960 votes; C. N. Norwood, Fusion, received 1 ,570 votes, and for President, November election, St. Francis County, Grover Cleveland, Democrat, received 838 votes ; Benjamin Harrison, Republican, received 923 votes ; Streator, Union Labor, received 248 votes. The total vote of both candidates for President opposed to the Democratic vote is 1,171. For Congressman, November election, St. Francis County, W. H. Gate, Democrat, received 762 votes; L. P. Featherston, Republican or Fusion, received 1,231 votes. Cate received about 20 per cent, less votes than Eagle did in September, and Featherston about 20 per cent. less than Norwood did. Cate received 76 votes less than Cleveland did the 6th of November, and Featherstou 60 more than both Harrison 140 PEATHERSTON VS. GATE. ami Streator combined. Eemarkably bad stormy weather in that re- gion accounts for the falling off of the total vote in November as com- pared with that in September. The last county to be considered is Crittenden. In this county, at the September election for governor, Eagle, Democrat, received 1,328 votes ; No/wood, Fusion, received 1,579 votes. At the November elec- tion for President, Cleveland, Democrat, received 310 votes ; Harrison, Eepublican, received 1,055 votes ; total, 1,365 votes. For Congressman, Gate, Democrat, received 316 ; Featherstone, Fushion-Republican, 869 votes ; Barrett, republican, 169 votes ; total, 1,354 votes, but 11 less than were cast for President. The contestant, to sustain the ninth, tenth, eleventh, twelfth, thir- teenth, and fourteenth paragraphs of his notice, introduces the follow- ing exhibit, which is found on page 228 of the record : [Exhibit A to deposition of W. B. Eldridge.] Abstract of poll-books of election held on the 6th day of November, 1888, for Representa- tive in Congress for the'2d Congressional district of the State of Arkansas, in Critten- den County, at the following precincts or voting places, and not certified to the secretary of the state on account of irregularities in the poll-books appearing therein, that the judges and clerks of said election were not sworn as the law directs. Total vote. W. H. Gate. L. P. Feath- ers ton. 147 14 133 Walnut Grove .............. 189 40 137 Bradlcv 208 4 105 Edmoudson 90 15 ?5 Kicisvillc 45 45 Gilmore 45 35 Scaulin 64 61 g 788 150 62.J CLERK'S CERTIFICATE TO TRANSCRIPT. STATE OF ARKANSAS, County of Crittenden : I, Sam', Keel, clerk of the circuit court within and for the county and State afore- said, do hereby certify that the annexed and foregoing pages contain a true and com- plete transcript of the above as therein set forth, and as the same appears of record in ray office at Marion, Crittenden County, Arkansas. Witness my band and official seal this 21st day of February, 1889. [SEAL.] SAM'L KEEL, Clerk. , D. C. In regard to this contention, and in order to arrive at a proper under- standing of these returns and that justice might be done all parties, the eontestee, on the 16th day of January, in Little Kock, in contestant's room, proposed that in order that there should be lio trouble in this matter they would both go in person to Marion, thecounty seat, and get thereof, to be submitted as proof in this case. It was so determined, all the facts in relation to these returns, and make an agreed statement and the Thursday week following was fixed upon as the day to meet at Marion. Coutestee went on according to the agreement ; contestant was not there. While the certificate of the county clerk indicates that he did not certify to the secretary of state as part of the vote for Representa- tive in Congress the votes from these seven precincts in this county, yet we can not concur with the committee that there is sufficient legal proof to warrant these votes being added to the respective votes for contestant and contestee in these counties. We shall consider this matter again further on. FEATHERSTON VS. GATE. 141 Contestant alleges in his notice with regard to one of these precincts, viz, Scaulan, that 163 legal voters of said precinct went to said precinct at the proper time for the purpose of voting for him for Representative and were prevented from so doing by the unlawful and illegal conduct of said judges of election and by intimidation of your partisans. The so-called testimony of these men was taken in Memphis, Tenri., without notice to contestee and is offered to maintain this charge. We shall discuss the taking of this alleged testimony along with more of the same kind hereafter. Let it now be examined and applied as if it were deserving of consideration. Willis McGee (pages 225 and 226 of the record). Q. What is the usual vote in your township ? A. About 125. Q. How many Democrats? A. About '25 to 30. Q. What is the usual Republican vote ? A. From 100 to 125, Q. How many Republican votes were cast ? A. No, sir ; I do not know exactly how many were cast. I seen about nine or ten. Q. Please make a list of those names and file it as Exhibit B to your deposition. A. I do so. Q. Were a good many men out at the polls that day Republicans! A. Right smart, and it was raining hard and a heap did not come. Q. Was there many there didn't vote ? A. Yes, sir. Q. What was the reason ? A. The boys said it wasn't no use voting; that they do just as they choose, and they didn't have no show there. They said they all voted Republican before, solid out through, and they beat them at Scanlan's. It may be noted here that this witness testifies First. To ouly a small number voting, and says he filed a list of their names. This he does not do for some good reason best known to himself or those concocting this testimony. Second. It was raining and a heap of Republicans did not come to the polls. Third. A good many of them did not vote. He does not even say he himself voted. Finally he does not utter a word to show there was any intimi- dation to prevent any one from voting. E. B. Fields (R., pp. 215, 216) says about the same as to the voters of the precinct. Q. Do you know whether there were any Republican votes cast there that day ? A. Yes, sir; I give several of them tickets and they sealed them up and said they was going to vote them just like they was ; didn't open them at all. Q. How many did you give tickets to? A. lam certain I give four. I give tickets to several, but I did not know what they did with them ; but I give tickets to some and they held them in their hands like they were afraid they would get away from them. When asked: Q. Were there any disturbances or rows there in the Presidential election ? A. No, sir; it was a kind a of day like this. It was raining all day most. Didn't have no fuss that day. No intimidation or fraud is shown by this witness. On the contrary, he denies positively the one and does not touch on the other. John Johnson, also of Scanlan, is called to this secret Memphis ex- amination, and his strongest statements are given below : Q. You say you were at the Presidential election ? He had said no such thing, but answers : Yes, sir ; I'm at all them, but then I was there anyhow at that one expressly. Q. Was there some people come out to the polls that day that didn't vote?~A. They wanted to vote but was afraid to. Q. How many people voted there ? A. I counted off 73, and they was voting on. 142 FEATHERSTON VS. CATE. I didn't go away, but then I weut down the river a little piece and sot aiound. But everybody that, talked to me after I come up said they was voting Republican. Q.' You say they voted a Republican ticket ? A. Yes, sir. Q. How many did you see vote that ticket that day at the polls ? A. About 73; I think 73. I counted them particularly. Q. Did you have the tickets in your hand ? A. Yes, sir ; I had about 125 or 130 of them 150, and* 1 reckon I gave out about 30 or 40 of them that day and saw 75 of them voted, and stood and looked at them and saw pretty near every man that voted that day. I read the ticket and knew I was voting for Harrison. Q. Who did you think you was voting for Congressman? A. I just voted the straight ticket. Q. Then this is exactly the ticket you voted? A. Yes, sir. Q. And this is exactly the ticket you saw voted by 73 other men? A. Yes, sir. Q. If the people in your township were voted properly how many of them would turn out and swear to have voted that same ticket that you make an exhibit of there? A. 35 or 40 or 45. Q. There is how many if they were properly protected? You issued 73 yourself, you say ? A. I didn't issue that many, but I saw that many polled from other hands that was handed round and counted them every one. Q. Is there any feeling of uneasiness in your community now about their election matters? A. No, sir ; I don't hear anything more than just common. Mr. Johnson also says he can furnish a list of those who voted the Republican ticket, but he never does it. To set aside the election in this precinct upon this testimony would be an outrage upon the right of elections by the people. The testimony utterly fails to sustain the claim of contestant in whole or in the slightest part. Gat Island Precinct, Grittenden County. Contestant claims that he received 183 votes in this precinct and con- testee only 15, and that the election officers, through fraud or mistake, returned that he, contestant, received only 120 and contestee 88. George Heudley, examined somewhere in Memphis without notice to the con- testant, is made to say about as follows : We have usually voted from 196 to 200 alway in our township; about 14 to 15 Dem- ocrats and from IbO to 182 and 3 and 4 and so on Republicans. Nearly a full vote out. Not quite as many voted in the county election. No Republican, to his knowledge scratched the ticket and none to his knowing voted any other than the Republic;!! 1 . ticket. All told him they would vote the Republican ticket. There have been con- siderable uneasiness since July. The people of our community are willing to tell fully and freely all they know and other portions of the county seem to be the same way willing to tell what they have done in relat ion to voting in the county and how they have voted. The judges in our township were all Democrats. We could not see the box and don't know whether the judges were sworn or not. Robert Abernethy says he voted at the national election. Don't know how many colored votes there are in the township ; there are about 25 white voters, the rest are colored. General Republicans nine-tenths of them were Republicans. I heard them say prior to the time they would vote that ticket under all hazards. They come through the rain and got their ticket. There was no other exhibited publicly. Voted the ticket and saw it put in the box. Nothing more is offered to afford as a pretext for sustaining the claim of the contestant as to this precinct. Ferguson Township, Grittenden County. Contestant claims that 109 legal voters went to the voting place in said precinct for the purpose and with the intention of voting for him for Representative and were prevented from doing so by the unlawful conduct of the judges of election, who were partisans of contestee, and by intimidation of contestee's partisans. FEATHERSTON VS. GATE. 143 Thomas Foster (colored), examined in Memphis without notice, says his usual voting place is Ferguson precinct. Judges of election at State election supposed to be Democrats. Republican ma- jority increasing generally about 120 to 125 off and on all day. About 100 to my know- ing came there for the purpose of voting and the polls not being open they could not vote. They went off elsewhere to another precinct to vote. There Are about 6 or 8 Democratic votes in the township. I don't know the reason for not opening the polls. Six of the Winchester crowd came down there once during the fall and took charge of two men and put them under bonds for their appearance of the circuit court, Jan- uary term. I don't think the citizens of the neighborhood would be perfectly satis- fied to turn out and testify under the circumstances that exist there uow. I don't know about the safe part. They may be perfectly safe in doing so, but I doubt whether they'd be satisfied to do so. E. S. Bushing (colored), examined at Memphis without notice, lives at Jones's. Q. Did yon vote at the last national election ? A. No, sir ; wouldn't let me vote ; said I didn't live in that precinct. Q. Your vote was challenged then? A. Yes, sir. Q. Was the election at your regular voting place ? A. Wa'nt held ; don't know why. All of the voters in the precinct was Republicans but about 6. Judges at State election were Democrats. I was supervisor, and after I was notified that I was supervisor I went to the polls in order to know the reason or see that there was an election held there. I was appointed by the proper authorities, and went there for the purpose of having some kind of an election. No judges came and there was no election held. Q. When you found the polls were not open you went to Jones' for the purpose of voting? A. Yes, sir. Q. And there you were denied the right to vote ? A. Yes, sir ; none of us voted at all. Q. Were there any poll-books or a ballot-box furnished to any one that, you know of in Fergu^son precinct ? A. There was a ballot-box sent to me at 1 o'clock the same day. It was about 1 o'clock. I was in my store; had a clock in there and the ballot-box come there. The fellow came ; he looked like he came in haste. He come there with the ballot-box and poll-books and everything. Says, " I want you to hoW election at Fergusson's." I says u I aiut the judges." " Well," he says, "you are ap- pointed as supervisor." I says, " I have no notice of that." "Well," he says, ''it's in this thing." And I took it and looked in there and I saw I was appointed super- visor at Fergusson's and Jones'. I thought that was a mere mistake. I don't knoiv how come at two places, but then my name was on at Fergussou's and Jones' and I thought it was very necessary to vote for Harrison as President, and 1 wanted to vote the whole ticket, especially Featherston ; wanted to vote the whole ticket. We voted the State and county ticket solid Republican. There wa'ut but six men weut against us at that precinct and we voted 128 or l.sO there. The reason I didn't hold the election was because I sent it to the judges of the election. I thought they were elected for a certain term under proper authorities. I sent it to them and ordered them to open the polls immediately, that I was going to hold an election. There was none held at all ; there was people coming there all day ; I reckon there was more than 25 or 30. I reckon there was more than them. Of course I counted that many citizens of the county and there was citizens of the United States and we couldn't vote." Eev. T. J. Jones (colored) says also at Memphis : My usual voting place is Fergusson's, though I voted Jones' on the national elec- tion Presidential election voted at Jones', was at Fergusson's first about two hours, I reckon. About 100 come to Fergusson's during the day to vote. I did not know all of them. I knew one part of them. They all was Republicans. Q. They all turned out to vote ? A. Yes, sir ; all but about a few white men was in the crowd. They was Democrats. I didn't see any of those white men at the polls, but in that precinct 4 or 5 of them was Democrats. All the judges pretty well lived there in that voting precinct are Democrats, but I didn't see them all duriug the day. If there were two voting places in that township for national elec- tions, and if these witnesses speak truth, why was not an election held at both as the law authorized, by judges chosen by the people ? The witness, Jones, gives the true state of the case. There was but one voting place for that township for national elections, which was at 144 FEATHERSTON VS. GATE. Jones's. It is not necessary to guess at what might have been the result The certified returns show that contestant received 47 votes there that day for Representative in Congress and contestee received 5 votes. Xo evidence of intimidation or fraud by partisans of contestee anywhere appears. Grawfordsville, Crittenden County. Contestant's claims as to this precinct are as follows : I received for Representative 330 votes and you received 71 ; that the election offi- cers of said township, who were partisans of yours, through fraud or mistake returned that I received only 147 votes. Contestant, instead of taking evidence in the county to sustain this charge, offers evidence taken in Memphis, to show that when he and his attorney went to Crawfordsville to take testimony they were not treated with the courtesy and politeness which the citizens of a town are supposed to extend to a stranger who is there on legitimate busi- ness; that the people were bitterly opposed to Featherston making an investigation of the election, and two of them made threats; that the attorneys had to get their meals at a colored restaurant and spend the first day in a saloon, and then had to sleep at the house of a colored merchant; that Mr. Berry, attorney for Mr. Gate, refused to act as notary, though he had before promised to do so ; that some 6f the peo- ple were drinking, and friends of Featlierston took him out of a crowd to prevent difficulty, and that a majority of the voters who voted for him would be afraid to testify there, and a mass of other matter which in nowise relates to the merits of this contest. We shall now discuss the question whether testimony taken as this was should be considered by the House, and weigh it for its worth. As we have repeated, it was taken without notice and in violation of law. Act of March 2, 1875 (laws 2, 43, p. 338) : It is provided that the party desiring to take depositions under the provisions of this act shall give'the opposite party notice in writing of the time and place when and where the same will be taken ; of the name of the witness to be taken, and their places of residence, and of the name of the officer be- fore whom the same will be taken. To pretend not to evade these requirements of the law W. B. Eld- ridge says in his deposition : I notified L. P. Berry, the attorney of Mr. Gate, that Featherston would take proof in Memphis, Tenn., at my office on February 24, 1889. Walsh and myself both notified Berry that we would begin taking proof at 59 Madison street, Memphis, Tenn., February 25, 1889. We here introduce the affidavit of Mr. Berry, which flatly contradicts Mr. Eldridge upon this point. STATE OF ARKANSAS, County of Crittenden : I, L. P. Berry, an attorney at law, resident at Marion, Crittenden County, Ark., being sworn, do state that I have befoie me a printed copy of the evideuce in the case of L. P. Featherston vs. W. H. Gate in the contest for a seat in the Fifty-first Congress of the United States from the first district of Arkansas, wherein it appears, on page 227 of said printed record, that one W. B. Eldridge states or testifies as fol- lows: "I notified Mr. L. P. Berry, the attorney of Mr. Gate, that Mr. Featherston would take proof at Memphis, Tenn., at my office, on the Congressional contest ; on February 23 Mr. Henry Walsh and myself both notified Mr. Berry that we would begin taking proof at 59 Madison street, Memphis, Tenn., at 9 o'clock on February 23, 1889," and I further state that this statement is untrue, and without any founda- tion in fact; that Mr. EJdridge and Mr. Walsh did not give me any such notice, nor either of them as he states, and I never knew of evidence relating to Ciitteuden FEATHERSTON VS. GATE. 145 County until I saw it printed in the record, nor do I to this day know at what place said supposed evidence was taken. I further state that I was only authorized to act for Mr. Gate as his attorney in said County so far as related to taking proof in Crittenden County, Arkansas, and had no authority to represent him or take proof elsewhere, or accept, ftsceive, or waive any notice relative to taking proof elsewhere. L. P. BERRY. Sworn to and subscribed before me this January 10, 1890. [SEAL.] SAM'L KEEL, Clerk, By O. M. TUFTS, D. C. If, however, there were no questions of the truthfulness of Mr. Feath- erston's lawyer, it is clear that the notice could not have been in writing giving contestee the material facts concerning the witnesses to be ex- amined. It was a plain violation of the law in that respect for some covert reason. The officer shall cause the testimony of the witnesses, together with the questions proposed by the parties or their agents, to be reduced to writing in his presence, and in the presence of the parties or their agents, if attending, and to be duly attested by the witnesses respectively (R. S., sec. 122). The certificate of the notary, E. M. Avery (page 185 of the record), shows that this provision of law was violated. Although he attempts to give the impression that the words of the witnesses were reduced to writing by type- writer, and submitted to witnesses and attested by them, he says the short-hand reporter's notes are herewith transmitted, etc. The performances with the witnesses he said occurred in February and early in March. His certificate is dated July 13, and upon the original papers on file in the committee room, the names are all signed by type-writer, even of those who are represented as signing their own names, except Eldridge's and one other's. All officers taking testimony to be used in a contested election case, whether by deposition orotherwise, shall, when the taking of the same is completed and without unnecessary delay, certify and carefully seal and immediately forward the same by mail or express to the Clerk of the House of Representatives. (Act approved March 2,1887.) This provision of the law is also disregarded. What good reason can be given for this unlawful course ? In this case the legal time for tak- ing testimony closed April 15. As required by statute the Clerk of the House of Representatives notified parties that they should appear be- fore him June 28, for the purpose of being present at the opening of the sealed packages of testimony and of agreeing upon the parts thereof to be printed. They came here. Only part of the depositions were in the hands of the Clerk. None of those taken in Memphis were on file. Contestant asked for further time, which was granted, and contestee maiued here waiting until July 7 ; but these papers were not filed, n July 21 they were at last filed. Contestee never saw them or rned their contents until a printed copy of them reached his hands ate in September. The contestant and his attorneys have never at- tempted any explanation or offered any excuse for this extraordinary, suspicious, and illegal delay. The. contestee was without any oppor- tunity to be present and see and hear these witnesses while they were telling their tales or to cross-examine them or to bring proof subse- quently to explain or contradict their statements. Their record is full of the abuses which occurred under such circumstances. Leading questions forcing false statements from the lips of ignorance are found upon nearly every page. In more than one instance the wit- ness has thus placed on his tongue a statement contradicting others he H. Mis. 137 10 146 FEATHERSTON VS. GATE. has just made. Perjury so striking and peculiar that it would be ridicu- lous if it were not pitiable, discredits more than one page. In such a way the contestant seeks to have the returns at Crawfordsville set aside and himself given the same vote as the electors for the Republi- can national ticket received at this precinct, although there was a reg- ular Republican candidate for Representative, a resident of St. Francis county, who divided that vote with him. The clerk's certificate shows that the Republican electors received 330 votes, the Democratic electors 71 votes. It also shows that W. R. Bar- rett, for Representative in Congress, received 160 votes ; L. P. Feather- ston, 147 votes; Willi m H. Cate, 88 votes. The majority report has not been submitted to us, so that we do not know upon what claims the committee proposes to unseat this member of Congress duly elected by the people of one of the largest and most populous, enterprising, and intelligent of the districts of the State of Arkansas. The coutestee comes here with a certified majority of 1,348. If all that is claimed for contestant in Phillips County were allowed, which is 181, that would leave him 1,167 ; and then if the votes in the seven townships of Crittenden County, not certified up by the clerk were allowed as if there were no question of their legality there would be 522 for Featherston, less 150 for Cate, or 472 more to be taken from contestee's majority, 1,167, leaving him a majority of 595, to which he is rightfully entitled. But suppose the House should go a step further and give the con- testee arbitrarily the 169 votes cast for the true Republican, Barrett, at Crawfordsville, to punish the citizens of that town for their im- politeness, discourtesy, and rudeness to contestee. that even would not obliterate the majority of the sitting member, but only reduce it to 426. Therefore we recommend the passage of the following resolutions : Resolved, That L. P. Featherston was not elected as a Representa- tive to the Fifty-first Congress from the First Congressional district of Arkansas. Resolved, That William H. Cate was duly elected and is entitled to retain his seat. JOS. H. OUTHWAITE, CHAS. F. CRISP, CHAS. T. O'FERRALL, LEVI MAISH, L. W. MOORE, EGBERT P. C. WILSON. S. E. MUDD vs. BARNES COMPTON. FIFTH MARYLAND. Contestant claimed (1) to be elected on the face of the precinct returns, and that these returns are primary ; (2) to have a majority of the legal votes after the deductions and additions required by the evidence are made ; and (3) that he had been deprived of 175 votes in one precinct by violence and intimidation. All three claims are sustained by the committee, the minority dissenting both as to the law and the facts (see minority report, page 161). The resolutions presented by the committee were adopted March 20, 1890, by a vote of 159 to 145, and Mr. Mudd was sworn in. The debate will be found on pages 2392 to 2449 of the Kecord. (1) Returns. Which primary evidence. According to the law of Maryland, the duties of the presiding judges when assembled at the county seat, are purely ministerial. They are to add up the votes of the precinct returns on the books of the polls and to certify the results of this addition to the governor. They can neither throw out votes certified by the precinct judges, nor return votes not certified by the precinct judges. It is presumed, of course, that the presiding judges will do their work accurately, and that their returns to the governor will contain a correct summary of the votes in their county. This presumption is, however, merely a prima facie one, and can be rebutted at any time by showing that these returns were, in fact, not a correct summary of the precinct returns ; and when this is done, the returns to the governor must be disregarded and resort had to the primary evidence of the result of the election; that is, to the precinct returns themselves. (2) Ballot. Imperfect. Whenever the intention of the voter is clear and unmistakable, effect should be given to it. (3) Burden of proof. When it appears that the contestant was elected on the face of the returns, the burden of showing that these returns were not correct is thrown on the contestee. (4) Votes unlawfully rejected, 147 148 MUDD VS. COMPTON. The votes of legal voters who duly offered to vote and had their votes refused, the judges truthfully or falsely alleging that some one else had previously voted on the name, should be counted for the condidate for whom it is proved they offered to vote. (5) Votes. Names not on poll book. A large number of votes was rejected because the voters who had 'duly applied for registration, and been registered, found their names omitted from, or inaccurately copied on, the poll books. It was claimed that these votes could not be counted, because the law of Maryland makes the poll books conclusive evidence of the right of a man to vote. Held, that the law simply lays down a rule of evidence for the guidance of the judges of election, so as to reduce to a minimum their judicial functions. The votes should be counted on a contest. (6) Votes improperly rejected . Where votes were rejected by the judges because of real or assumed doubts as to the identity of the voters presenting themselves; held that where their identity is clearly established, these votes must be counted for the candidate for whom they were tendered. (7) Intimidation. Amount of violence necessary. The committee holds that a citizen has a right to a free and unmolested approach to the ballot box, and is not bound to fight his way to a poll- ing window, especially when to do so he must come into conflict with persons who claim to be officers of the law, the truthfulness of which claim he has no means of negativing, and that a candidate whose sup- porters have done all in their power to make voters believe, that they would suffer injury if they attempted to vote, can not be heard to say that the intimidated voters should not have believed the threats made to them. REPORT. FEBRUARY 27, 1890. Mr. COOPER, of Ohio, from the Committee on Elections, submitted the following report: The Committee on Elections, having had under consideration the con- tested election case of Sydney E. Mudd, contestant, against Barnes Compton, coritestee, from the Fifth Congressional district of Maryland, submits the following report: At an election held on the 6th day of November, 1888, Barues Comp- ton and Sydney E. Mudd were, respectively, Democratic and Republican candidates for election as Representative to the Fifty first Congress from the Fifth Congressional district of Maryland. The former obtained the governor's certificate and now holds the seat. . His right to it is contested by the latter, who asserts (1) That he was elected, on the face of the returns, by a plurality of three votes, receiving in all (as appears on the precinct returns) 16,283 votes, while the contestee, as appears from the same returns, received 16.280 votes. (2) That he was elected, if all the votes for both contestant and con- testee improperly rejected are counted for them, respectively, and all votes improperly counted for them are deducted. (3) That at the first precinct of the third district of Anne Arundel County (the vote of which was returned for contestee 168, for contestant 32) the partisans of the contestee, by violence, threats, and intimidation, prevented 175 legal voters who wished to vote for contestant from doing so. PRIMA FACIE CASE. The law of Maryland (Code Public General Laws, section 66, article 33, record, page 639) requires the judges of election, as soon as the bal- lots are read off and counted and the number for each candidate reck- oned up and ascertained, to make out under their hands on the books of the polls two distinct statements and certificates of the number of votes which have been given for each candidate. The presiding judge of election (section 68, article 33, Code of Public General Laws) takes charge of these two poll-books containing these certificates and state- ments, and on a subsequent day, within ten days after the election, all the presiding judges of each county assemble at the Court-house of their respective county. When so assembled, (section 69, article 33, Code of Public General Laws, Record page 640), the presiding judges cast up the entire vote of all the districts or precincts of the county, and make out two distinct certificates or statements of the number of votes given in their county for each candidate. Due of these certificates is then to be delivered to the clerk of the county court for the county and the other to be mailed to the governor. The governor then issues a certificate 149 150 MUDD VS. COMPTON. to the person who, from the returns so sent to him, appears to have been elected. According to the law of Maryland, the duties of the presiding judges when assembled at the county seat, are purely ministerial. They are to add up the votes of the precinct returns on the books of the polls and to certify the results of this addition to the governor. They can neither throw out votes certified by the precinct judges, nor return votes not certified by the precinct judges. It is presumed, of course, that the presiding judges will do their work accurately, and that their returns to the governor will contain a correct summary of the votes in their county. This presumption is, however, merely a prima facie one, and can be rebutted at any time by showing that these returns were, in fact, not a correct summary of the precinct returns; and when this is done, the returns to the governor must be disregarded and resort had to the primary evidence of the result of the election; that is, to the precinct returns themselves. In this case the returns forwarded to the governor footed up for Barnes Comptou 10,000 votes ; for Comptou 1 vote ; for Sydney E. Mudd 15,819 votes; for S. N. Mudd 1 vote. The contestant denies the accu- racy of said returns to the governor, and files duly certified copies of the precinct returns from every precinct in the Congressional district (record, pages 712 to 779), which show that the vote in the district for the contestant and the coutestee was as follows : For Sydney E. Mudd 16,279 For S^ N. Mudd 1 For S. E. Mudd 1 For Mudd 1 "One ticket upon which Sydney E. Mudd's name appeared twice and Mudd's name was not counted in the above returns"... 1 Total 16,283 For Barnes Compton 16,280 Plurality for Sydney E. Mudd 3 Comparing these precinct returns with the returns made to the gov- ernor, it is found : (1) That the returns to the governor from the counties of Howard, Anne Arundel, and Baltimore, and from the city of Baltimore, were ac- curate summaries of the precinct returns and were correct. (2) That in the third district of St. Mary's County there were returned by the precinct judges 1 vote for u S. E. Mudd," and 1 vote for " Mudd," but the presiding judges did not include these votes in their return to the governor. (3) That the returns from the fifth and ninth districts of Charles County were not included in their returns to the governor, because at the time the presiding judges made up their returns the returns from these precincts were sealed up in the boxes which the presiding judges had no authority to open. These boxes were afterwards opened by an order of court, and certified copies of the returns found in them have been filed, which show that the contestant received in these districts 432 votes and the contestee 280 votes. (4) That the face of the precinct returns from the sixth district of Charles County shows There was one ticket upon which Sydney E. Mudd's name appeared twice and Mudd's name was not counted in the above returns. (5) That in Calvert County the returns to the governor allow the contestant 1,138 votes, whereas the actual vote cast and counted in this MUDD VS. COMPTON. 151 county, and shown by the certified copies of the precinct returns (record, pages 746 to 749), was 1,166. Mr. Mudd called the return judges of every precinct in the county (record, pages 271-275), and proved by them that the returns then on file in the clerk's office were the very re- turns which they made and were in no way altered. He proved by the editor of the Democratic paper in the county town that on the day the returns were made up, he copied them for his paper and that they gave the contestant 1,166 votes. He proved by the clerk of the court that immediately upon seeing it stated in the newspapers that the return to the governor gave the contestant only 1,138, he wrote to the governor stating that a mistake had been made and asking permission to correct it. The deputy clerk of the court who made up the returns to the governor, swears himself that these returns so sent on by him were erroneous and that those in the clerk's office were correct (see record, pages 271-275). If the precinct returns of any precinct had been altered, the contestee could have offered some evidence to show that such alterations had taken place, but he did not, in fact, take any testi- mony whatever upon the subject. The committee believe that the con- testee is simply trying to raise a technical point of evidence to defeat the contestant's claim to 28 votes, which no one can seriously doubt the contestant received, and that the contestant's vote in Calvert County was 1,166. (6) That in the precinct returns from Prince George's County (record, pages 762-772) there was no mention of a vote for " Uompton," which the presiding judges in their return to the governor say was cast in the tenth district of the county, and consequently the presiding judges had no right to includes it in their return to the governor. The contestant has, however, attempted to show that he was entitled to the vote by offering in evidence a certificate of the clerk of the court of the county (record, page 610), that on one of the tally-lists of the district there ap- pears, " one ticket for * Coinpton,' not counted for Barnes Compton ; " on the other of said tally-sheets, " one ticket for Coinpton, torn, not counted for Barnes Compton." There is no other evidence concerning this vote. The tally lists are not a part of the certificate or statement from which the law requires the presiding judges to make up their return; and if they were, their contents are not sufficiently proved by a certificate of the clerk that such and such a thing appears upon them. Public officers prove public records, not by statements as to what their contents are, but by certified copies of the documents themselves. Moreover, it would seem, from statements quoted from one of the tally -lists referred to, that the judges may have decided that the voter intended to cancel his ticket as to candidate for Congress by tearing it. For these reasons the committee does not think it clear that the con- testee is by the evidence entitled to this vote, but thinking it likely that such a vote may have been cast, has concluded to allow it. Upon the face of the returns the committee, therefore, finds that the vote stood : For S5'dneyE. Mudd.. ...... .16,279 For S.E. Mudd 1 For S.N. Mudd 1 For Mudd 1 One ticket on "which Mudd's name appeared twice, not counted for Mudd 1 16,283 For Barnes Compton 16,280 For Compton 1 16,281 Plurality for Sydney E. Mudd -.. 2 152 MUDD VS. COMPTON. There were no persons by the name of Mudd and Compton other than the contestant and the contestee candidates for Congress at this election ; and, therefore, under the well established rule of the House, the vote for " Cornpton " if counted at all should be counted for the contestee, and the votes for S. E. Mudd," for "Mudd" and for "S. N. Mudd" for the contestant. It is well settled by the authorities that the fact that the same candidate's name is on the same ticket more than once, is no reason why that ticket should not be counted, as one vote, for that candidate. It would, therefore, follow that the contestant is entitled to the one vote not counted for him, because his name is on the ticket twice. The contestee has, however, offered evidence (Record,' pp. 455-457) that this ticket was not counted for the contestant, not because the name was on the ticket twice, but because the paster (upon which his name was printed) was pasted on the regular Republican ticket so as to cover up the designation of the office for which he was a candidate. If this be granted, it still remains true that whenever the intention of the voter is clear and unmistakable, effect should be given to it ; and no one can have any doubt that the voter of this ticket a straight Republican ticket intended to vote for Mr. Mudd for the only office for which he was a candidate. No provision of a statute regula- ting the form of ballots will be held, or was ever intended to be held, as mandatory in contravention of such a plain and manifest intent. The committee is, therefore, of the opinion that the contestant is entitled to this vote ad will count it. The face of the returns, then, in the opinion of the committee, show that the contestant was entitled to 16,283 votes, and the contestee to 16,281 votes, giving the contestant a plurality of 2 votes. Such being the case, the bjurden of showing that these returns (the primary evidence of the result of the election) were not correct, is thrown on the contestee. REVIEW OF DISPUTED VOTES. The committee holds that the votes of legal voters who duly offered to vote and had their votes refused, the judges truthfully or falsely alleg- ing that some one else had previously voted on the name, should be counted for the candidate for whom it is proved they offered to vote. It is bad enough that a person who has no right to vote gets his vote in ; it would be worse if by getting his vote in he kept an honest man's vote out. Under this ruling the contestant gains the votes of six persons, whose names, their county and district, the allegation of the notice under which the tender and refusal of their votes was proved, and the pages of the record showing the proof, are as follows : Xame. County and district. Under allegation. Pages of record. Butler Win .. .. 1st precinct, 13th district, Baltimore 12 15, 17, 286 288, 674. County. 1st district, Charles County 24 252, 254. 3d district, Prince George's County .. 29 259, 260. Green, Chas H do 29 260, 261. 13th district, Prince George's Couniy. 28 201. 2C2, 263. "Williams Thos 1st pre't, 18th ward, Baltimore County 22 37, 38, 40 41 320, 322 669. MUDD VS. COMPTON. 153 Contestee proves no votes of this class. A large number of votes, on both sides, were rejected because the voters who had duly applied for registration and been registered found their names omitted from or inaccurately copied on the poll-books. It is urged by the con testee that the law of Maryland makes the poll-book conclusive evidence of the right of a man to vote ; and that these votes can not be counted. The committee can not assent to this proposition. The law simply lays down a rule of evidence for the judges of election, and is intended to reduce to a minimum their judicial functions. Into the qualification of voters they can not inquire. All they have the right to pass upon is the question : whether or not a person offering to vote is the person whose name is on the poll-book. This limitation is im- posed upon them, because in the view of the Maryland law a polling window, on election day, is not a proper place to investigate questions of qualification. A simple rule is laid down for the guidance of the judges, and any injustice which may be done by the application of this rule can, if necessary, be corrected by the tribunal before which the contest is made. The class of cases about which we have been speak- ing, together with another class represented by a vote on each side in which the voter was improperly refused registration, are the very sort of cases to provide clearly for which the third section of the act of Con- gress of May 31, 1870, was enacted, which section read as follows : That whenever, by or under the authority of the constitution or laws of any State or the laws of any Territory, any act is, or shall be, required to be done by any citizen as a pre-requisite to quality or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into ex- ecution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance or offer to perform or acting thereon, be deemed and held as a performance in law of such act, and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had performed such act. The admission of such votes is in accord with the unvarying practice of Congress and the almost uniform decisions of the courts, and the committee will count all such votes properly proved on both sides. The con testee has offered to prove a number of votes lost by him be- cause of inaccuracies on the poll-books, not otherwise referred to in his answer than by an allegation that in a very large number of other election districts he lost votes from this cause, and more votes from such cause than the contestant. The contestant objects to the admission of this testimony on the ground that this general' allegation does not, in the language of the statute governing contested elections, state " specifically the other grounds" upon which the sitting member rests the validity of his elec- tion ; and the committee is inclined to agree with the contestant, but as the committee in this case has no doubt that the contestee was really entitled to some of the votes of this class which he has proved, the con- testee will be allowed the votes he has proved he lost from inaccuracies of the poll-books, whether the loss of these votes was or was not specif- ically alleged. The committee, however, on the same principle, will allow the contestant the votes he proved in rebuttal of the contestee's allegation in paragraph 9 of his answer, that the contestee lost more votes than the contestant because of inaccuracies on the poll-books. In most cases the contestant proved how the person, whose vote he claimed to have lost in this way, would have voted had his vote been received, by the testimony of the voter himself. The contestee, in a much larger proportion of the votes he proved, proved how they would have voted by other and less conclusive testi- 154 MUDD VS. COMPTON. inony, in some instances by merely proving that the voter was or had been a Democrat. The contestant objects to votes proved in this last- mentioned way being counted, on the ground that as he received a great many Democratic votes in the district, there is 110 certainty that these voters wanted to vote for contestee. The committee, however, has decided to allow the contestee these votes. Under these rulings, therefore, the contestant gains the votes of forty-four persons forty under specific allegations and four in rebuttal under general allega- tion above referred to. The names of these voters, their county, and district or ward, and precinct, the allegation of the notice under which these votes were proved, and the pages of the record containing the proof, are as fol- lows : Forty under specific allegations. Name of voter. Elec. dist. or pre a t o a c a a u .2 " P. of rec. 1st pre., 13th dist., Baltimore 1st " 13th " " 1st " 13th " " 1st " 13ih " 1st " 13th " 1st " 17th ward, Balto. Cit 1st ' 17th " let. ' 17th " 2d ' 17th " 9th ' 17th " ' 9th ' 17th " 9th ' ]7th " 9th ' 17th "' ' 1st ' 16th ' ' 1st ' 16th ' 1st ' 16th . ' ' 1st ' 16th 1st ' 16th wa-d, Bato. C 1st ' 16th 1st ' 16th 3d ' 1st dist. Baltimore C 1st " Howard 6th " 6th " 3d pre. 1st " Baltimore 3d " 1st " 6th ' Howard 1st ' 1st 3d pre. 1st ' Baltimore 5th ' Charles 5th ' 5th dist. Charles C 5th " 5th ' 8th St. Mary's 5th ' " ' 5th ' 5th ' 1st pre. 5th ' AnneArun. > 12 12 12 12 ' 12 15 15 15 16 17 17 17 17 18 19 19 19 19 18 18 13 23 31 31 13 13 31 23 23 13 26 26 26 26 26 11 10 10 10 8 11, 681, 17, 285, 291, 293, 328, 420,504,505,508,510. 13,682,17,286,291,292. 13, 683, 17, 286, 291. 292, 329. 14, 676. 17, 2i*6, 292, 329, 508. 18, 43, 6hO, 285. 10,655.20.21.23,24,42. I'd, 22, 2.;, 24. 6.^6, 42, 44. 20,22,23,24,657,41. Hopkins, Mai. or Melchis- eflek. Miller A.W.Herman - ... Gamble, Daniel E Johnson Winfleld S Wilder John D y 1 - ... Lutsche George H Virts John R 25, 6;>9, 26. 26,27,661. 27, 28. 661. 28, 662. 29,663. 30,31,34,35,36.395,665. 31,665,35,36,307. 32, 666- 32, 33, 667, 36. 33, 34. 668, 36. 3t. 36. 43, 670. 36.245,710. 45, 46, 677, 330, 500. 47. 689, 297,3/7. 49, 51. 685, 298, 558. 49,236,684,298. 50. 670, 329. 50, 675, 3IiO. 48, 236, 686, 298, 55* 52, 687, 327. 53, 688, 327. 235, 678, 330. 216 248. 246, 247, 251. 247, 249. 247, 252. 248, 250. 265, 650, 587. 266, 652, 587. 266, 587. 268, 269, 653. 165, 672. Taylor, John Hill Wiiliam Henry Smith, Geo. Washington . . . Sampson. Joseph H Reed Robert Richardson, Wm. T Gordon Philip Kellar, Ishmael W Thomas William Whi i temore, Charles W Four in rebuttal. 1 P. 1 D. Bait. Co 393 394,493 555 8 D. Anne Arundel Co 556 792. Holt Levi G 8D. " 556 557 790. 7 D. St. Mary's Co 575 576 594. MUDD VS. COMPTON. And cpntestee gains 17 sucli votes, those of Benj. F. Chappelear, B. F. Gover, Clifford Sweeney, Wm. K. Dawson, Ferdinand E. Burch, Chas. F. Burler, John E. Garnett, Jas. W. Wheatley, Dalton Howard Fisher, John H. Iglehart, Andrew M. Lainhart, Edward Woods, John M. Todd, John H. Turner, Chas. W. McCready, Richard H. Carter, John Kalb. The committee considers there is no sufficient evidence that Albert F. Berry was a registered voter at the time he offered to vote or that he had any right to be registered ; that there is no evidence whatever that John T. Butler was not properly stricken off; and that the very certifl ,te filed by the coutestee to prove that Cbas. H. Soper, James R. Ede- in, Wm. R. Thomas, Francis Tolson, and Andrew V. Convey were regis- red voters, shows, in fact, that these men never were entered by the fficer of registration as qualified voters at all. The law of Maryland (Code of Public General Laws, article 33, section 14, record, pages 624- 625) requires the officer of registration, so soon as an applicant of regis- ation presents himself and before he is sworn, to write down his name. he officer then swears him and examines him, and if he finds he is quali- ed, he again writes his uame in the column of qualified voters. The certificate filed (record, page 586) indicates that the names of hese men were not entered in this column. None of them were ex- mined personally, and there is no evidence that they were by law en- itled to registration. (See record, pages 468-70, where all the evidence neerning sa'd persons is set forth.) There is another class of cases in which the judges rejected votes be- use of real or assumed doubts as to the identity of the voters preseut- g themselves. Wliere their identity is clearly established, these votes ust be counted for the candidate for whom they were tendered. Under this ruling the contestant gains 4 votes, whose names, with milar references as above, are as follows : Name of voter. County, city, ward, or district. Under allegation. Pages of Record. Bell, Thomas 1st pro 13th dist Balto Co 12 16 17 673 286 ">S7 288 289 Booth! Samuel H Cooper, Gnstavns Elzear . . . Weems, Wm. Chapman Istpre., 17th ward, Balto. City 5th dist. St. Mary's Co do M 15 10 10 292,505,608,510. 20, 22, 23, 24, 658, 42, 45. 267. 049, 269, 587. 269 270 654 587. The coutestee recounted the ballots at the sixth and seventh precincts of the fifteenth ward, of the first precinct of the sixteenth ward, and of the first, second, third, fourth, fifth, sixth, seventh, eighth precincts of the seventeenth ward of Baltimore City, and of the first district of Baltimore County. He asked for the recount in his answer, but with the exception of the first precinct of the first district of Baltimore County, and the first precinct of the sixteenth ward of Baltimore City, he laid no foundation for a recount by showing any ground to suppose that a mis- take had been made. All the presiding judges examined by the contes- tee himself were Democrats, as were the majority of the judges in each of the precincts recounted. All the judges examined swore that they believed their count was correct. It is a strange circumstance that these Democratic judges should have uniformly made mistakes to the prejudice of their own candidate. The officers in whose custody the 15G MUDD VS COMPTON. boxes were, between the election and the recount, were all Democrats. The contestee recounted some precinctsof a ward and not others, and there is not a shred of evidence to show why some were recounted and others not. It is clear that it any one had access, even for a few mo- ments, to the ballot-boxes, they could have been opened and their con- tents altered and then closed again without leaving any trace of dis- turbance. The contestee gained 19 votes on the recount. These votes we allow him, although we feel that there is something very curious about the whole matter. We allow contestee's claim, based on a recount, that a vote should be deducted from the contestant in the ninth district of Charles County, making a loss to the contestant of 20 votes on the re- count. The committee also allows contestee a vote he claims he should gain in the seventh district of St. Mary's County upon which his name was written and that of the contestant is claimed to have been scratched, although there is no allegation in the answer of contestee under which the prool of either of these votes is strictly admissible. We deduct from the toutestee 1 vote in the second district of Cal- vert County, being satisfied that there was counted for the contestee a ticket from which his name was scratched. (Eecord. pages 271-273.) Under the above rulings the Contestant having on the face of the return. . , 16, '283 Gains, votes rejected because some one had illegally voted on the voter's name 6 Votes rejected because of inaccuracies of poll and registration books 44 Votes rejected because ot a doubt as to identity of voters 4 1(5, 337 And loss on recount .. 20 16,317 Contestee having on the face of the return 16,231 Gains, one vote in Seventh district of St. Mary's County 1 Votes rejected because of inaccuracies on poll or registration books 17 1C. 299 Vote rejected because of doubt as to identity of voter 1 Loss, one vote in Calvert County The contestant, who had two plurality on the face of the returns, makes a net gain by correcting these individual errors of sixteen votes and his plurality stands at eighteen votes ; this, too, after allowing the contestee all he can possibly claim, and more than we think the strict and perhaps safe rule of law would authorize. Furthermore, if every one of tfte other votes which the contestee claims (but which the committee does not allow him) were given him, the only effect would be to reduce the contestant's plurality and would not ali'ect the final result. INTIMIDATION OF CONTESTANT'S SUPPORTERS BY THOSE OF CON- TESTEE. The committee finds that the votes of the first precinct of the third dis- trict of Anne Arundel County should be thrown out. The vote, its re- turned in this precinct, was 168 for the contestee and 32 for the contestant. The undisputed facts concerning this precinct are, that there were regis- MUDD VS. COMPTON. 157 tered therein 475 persons, 252 of whom were white and 223 colored ; that of these 475 only 206 voted, and of those who voted 191 were white men, and 15 were colored ; that when the polls opened 4 white men voted, then 15 colored men, and then 187 white men. The contestant has ex- amined 175 colored voters of this district who did not vote ; of these 175 161 were on the polling ground ; many of these walked or rode many miles to the polls, and some who were temporarily away from home re- turned from Baltimore, Annapolis, Steelton, and other places to vote. All of these men swear that they wanted to vote (and most of them were at the polls with their tickets in their hands for the purpose of voting) for the contestant j 14 others swear that they started from their homes and walked a greater or less distance towards the polls and then turned back, in consequence of what they heard as to the proceedings at the polls. There is no dispute that there were present at the polling place, from before the opening of the polls at 8 o'clock in the morning until late in the afternoon, a number of persons who were not residents of the pre- cinct ; that those of them who were identified were residents and regis- tered voters of Baltimore City, and that they drove down from Balti- more, reaching the polls before any of the voters, and drove back in the late afternoon ; that those men, or some of them, wore badges with the words U TJ. S. deputy marshal" upon them, and claimed to be such; that this claim was altogether false ; that these men were armed with pistols, which at certain periods of the day they were firing within the hearing of the polling place; that there were a number of guns in a wagon which brought them from Baltimore; that before the polls opened they placed themselves within a few feet ol the window at which the citizens were to vote, and that in a very few minutes after the polls opened they seized and dragged from the line two or more colored voters (among them a man of some seventy years of age, a large property owner and tax payer, a resident of the district for twenty- five years, and a universally respected citizen), and told them that they could not vote. The person just referred to (who from age and standing was evi- dently the most influential colored man present) asked if the colored people were not to be allowed to vote, when the crowd from Baltimore answered, " Not a damn nigger shall vote unless he votes for Cleve- land." The old colored leader then told the other colored men not to make a fuss, but as they could not vote to go away peaceably. A num- ber of them did, but the larger number remained about the polling place for some time longer and occasionally one of them would attempt to reach the polling place. In every such instance they were met by some one of the strangers or by one of the well- known Democratic leaders of the precinct, and told that they could not vote ; and when they still pressed on, they were struck at and compelled to fall back. A number of colored voters still remained in the neighborhood of the polls, and, in order to get them away, the leader of the Baltimore gang a man whom the witnesses all call " Tip Wells, " but whose real name is proved to be John H. Wills told a man named Ed. Pumphrey, a resident of the neighborhood, to go among the negroes, tell them that there was a gang of roughs from Baltimore there, that they had guns, and that more were coming down from Baltimore in the next train, and that they would have to fight these armed men if they wanted to vote ; Pumph- rey went down to where the negroes were, moved around among them, telling them what Wells directed him to tell, and adding that he was a deputy sheriff, that he could not protect them, and if they took his ad- 158 MUDD VS. COMPTON. vice they would go home. He then came back and reported to those who sent him what he had done. Fifty or more of the colored voters testified that they heard Purnphrey telling them to go home ; that there was a wagon-load of roughs there with guns, and that more were com- ing, etc. To rebut all this testimony the contestee produced a number of wit- nesses who say. that they saw very little trouble; that if the colored people had insisted on voting they think they could have done so, but the contestee did not put upon the stand a single man whom the wit- nesses for the contestant identified as having interfered with the rights of the colored Republican voters. "Tip Wells," the leader of the Bal- timore gang, was appointed a few weeks after the election, by the Dem- ocratic collector of internal revenue, a store-keeper in the internal-reve- nue service; and though he could have been summoned at any time to deny the charges made against him, or to explain what he and his fol- lowers were doing on election day, he was not put on the stand. Frank Chairs, another Government employe, and a resident of the precinct, was proved to have taken part in the "series of acts which intimidated the colored voters, but he was not examined by the contestee. William Chairs, who caught hold of one negro who went up to vote and jerked him back, and who was the Democratic leader in the precinct, was in the room when the testimony was being taken, coaching the counsel for the contestee, but he was not examined. The pseudo Deputy Sheriff Pumphrey, who played such a large part in the plot, was not examined. These men, and these alone, could have rebutted the grave statements made by the contestant's witnesses, but they were not put forward to do it. Tne persons who interfered with the election did so in the interest of the Democratic candidates, and their declaration that " not a damn negro shall vote unless he votes for Cleveland" was not an empty threat, for the Democratic negro, Jackson, as he himself testified 'record, page 148), got his ticket from one of the gang, and according to another witness (record, page 242), they held him up to the window to vote. The contestee claims that if this were all so, the negroes had physical force enough to have voted if they had persisted in doing so. The committee holds that a citizen has a right to a free and unmolested approach to the ballot-box, and is not bound to fight his way to a polling window, especially when to do so he must come into conflict with persons who claim to be officers of the law, the truthfulness of which claim he has no means of negativing, and that a candidate whose supporters have done all in their power to make voters believe that they would suffer injury if they attempted to vote, can not be heard to say that the intimidated voters should not have believed the threats made to them. The coutestee's majority in the precinct as returned was 136. The contestant proves by the voters themselves that he lost at least 175 votes as a result of this intimida- tion; the intimidation existed; it changed the result in the precinct, and the vote of the precinct must be excluded from consideration. MISCELLANEOUS. The evidence offered by the contestee to show that, in various pre- cincts and districts, his colored supporters were intimidated by those of the contestant, is of altogether too vague and unsubstantial a character to d. serve consideration. Only one colored man testified that he wanted to vote for the coutestee and was prevented from doing so by intimida- MUDD VS. COMPTON. 159 tion ; and he, on cross-examination, admitted that he intended to vote for the contestee becau.se he had been promised $2 or $3 for so voting. The committee can see no ground upon which the contestee's claim, that the eighth district of Anne Arundel County should be thrown out, can be sustained. It is not charged that any illegal votes were re- ceived, or counted, or that legal voters (except those whose votes were refused because of inaccuracies on .the poll-books, and whose votes have already been allowed contestee and contestant respectively) were prevented from voting. The committee, therefore, concludes that Contestant having on the face of the precinct returns 16,283 Gains Votes of voters whose votes were refused because it was alleged that other persons had voted on their names 6 Votes of voters whose votes were refused because of inaccuracies on poll or registration books 44 Votes of voters whose votes were rejected because of doubt as to their identity 4 16, 337 Loses Votes on recount 20 Votes returned for him in first precinct, third district of Anne Arundel County 32 CO \*& True vote for contestant - 16, 285 Contestee, having on the face of the precinct returns 10,281 Gains Votes of voters whose votes were rejected because of inaccuracies on poll or registration books 17 One vote in 7th district of St. Mary's County 1 Vote of voter whose vote was rejected because of doubt as to his identity. 1 16, 300 Loses Votes in second district of Cal vert County 1 Vote returned for him in first precinct, third district of Anne Aruudel County ?. 168 169 True vote for contestee 16, 131 Plurality for contestant 154 The contestant has, therefore, upon the most liberal allowance to the contestee and after the decision in contestee's favor of every doubtful point, a clear plurality of 154 votes and is entitled to his seat. The committee, therefore, reports the following resolutions and rec- ommends their passage: Resolved, That Barnes Compton was not elected as a Representative to the Fifty-first Congress from the Fifth district of Maryland, and is not entitled to the seat. Resolved, That Sydney E. Mudd was. duly elected as a Representa- tive for the Fifth Congressional district of Maryland to the Fifty-first Congress and is entitled to his seat as such. VIEWS OF THE MINORITY. 1) Ballots. Best evidence. The ballots, when clearly shown to be the identical ballots cast, are the best evidence of the vote. (2) Returns. Which primary evidence. The county returns sent to the governor are evidence of the vote of the county unless shown to be wrong by the primary evidence, either the ballots themselves or the count made by the judges of election in each precinct at the close of the election. In this case the evidence offered is insufficient to overthrow the county returns of Gal vert county. (3) Votes. Improperly rejected. " Whenever a voter did tender his vote and his name was upon the list of voters furnished to the judges of election, although the middle name or initial might be wrongly entered, still his vote should be counted as it should have been received by the judges, the object of" registration being for the purpose of identification of a voter, or if the name given by the voter was idem sonans with the name registered. * * * The vote of no person whose name did not appear, either properly or at least by 'idem sonans, ' could have been received by the judges, nor can they be counted by us." (4) Evidence. In rebuttal. Testimony in chief, offered in the time for rebuttal, should not be considered. (5) Intimidation. Amount of violence necessary. A poll can not be rejected for intimidation unless there was such a display of force as ought to have intimidated men of ordinary firmness. There was no such intimidation in this case. H. Mis 137 11 161 VIEWS OF THE MINORITY. Mr. MoofcE, from the Committee on Elections, presented the following minority report: The minority of your committee feel constrained to differ with the majority in their conclusions in this case, and submit the following mi- nority report : The undisputed facts are that by the returns made to the governor the contestee was elected by a plurality of 181 votes, and after correct- ing these returns by adding the votes of the sixth and ninth districts of Charles County, the plurality of the contestee was 29, as shown by the official figures. It is also true that there was an error in the return, as made to the governor, from the first precinct of the Sixteenth ward of Baltimore City, by which the contestant was allowed 223, whereas he received but 222 votes, and his total of 15,819 is made by allowing him this vote. This is conclusively shown by the certified copy of the return of the judges. (Record, p. 609, Exhibit Compton, 14), and by the recount (pp. 310, 616). The vote, therefore, prior to the recount, stood as follows: Barnes Compton official 16 000 Add vote of 5th district of Charles County 191 Add vote of 9th district of Charles County 89 Total 16,280 Sydney E. Mudd official 15,819 Add rote of 5th district of Charles Connty 274 Add vote of 9th district of Charles County 158 16,251 Deduct one vote first precinct, Sixteenth ward 1 16,250 Plurality for contestee 30 2. That by a recount of the ballots the contestant loses in sixth pre- cinct of Ffteenth ward of Baltimore City 6 votes (Record, pp 616, 279, showing recount, and pp. 726, return of judges) In the seventh precinct of said ward 3 votes (Record, pp. 283, 616, 727). In the second precinct of the* Seventeenth ward 1 vote (pp. 305, 616, 730). In the third precinct 5 votes (pp. 307, 616, 731). In the seventh precinct 1 vote (pp. 319, 616, 735). In the first precinct of the first district of Baltimore County 3 votes (pp. 647, 648, 741). In the ninth district of Charles County 1 vote (pp. 467, 755). Each gained a vote in the fifth precinct of the Seventeenth ward and Compton lost 1 vote. Net loss to Mudd, 19 votes. To recapitulate : Vote for sitting member as above 16,280 Vote for contestant as above 16,250 Deduct net loss on recount 19 16,231 Plurality for conteetee after recount 49 163 164 MUDD VS. COMPTON. The effect of the contestant has been to show, first, that there was an error of 28 votes in Calvert County; secondly, that votes were tendered for him which were refused, and should have been counted ; and thirdly, that there was in the second precinct of the third election district of Anne Arundel County such intimidation as should justify the throwing out of the vote of that precinct. THE RECOUNT. It must be borne in mind that the precincts which were recounted (with but one single exception, that of the ninth district of Charles County) adjoined the precincts forming the Fourth Congressional dis- trict, in the city of Baltimore, in which Mr. Rayner was the Demo- cratic candidate and Mr. Stockbridge the Republican Candidate; and that the discrepancy between the vote as returned and as recounted is explained by the fact that in the hurry of the count Republican tickets, appearing not to be scratched, were counted for Mr. Mudd, while in fact on many of the tickets was printed the name of Mr. Stockbr'dge. The count was made under an order of the court, as authorized by the State statutes, it was made in the presence of counsel for contestant, and every protection was thrown around it. The provisions of the State law providing for the security of the ballots are such as to insure their protection, and the evidence clearly shows that in each and every case the law was strictly followed. We can not, under the testimony, fora moment doubt that the ballots counted were the identical ballots that were cast, and when this is clearly shown the ballots are the best evidence of the vote. (McCrary, Ed. sees. 436-443, and 533 ; Paine on Elections, 750; Gooding vs. Wilson, 42d Congress; Smith, p. 80: But- ler vs. Lehman, 1 Bartlett, 353.) The law of the State requires the ballot-boxes to be made securely of plate glass, provided with locks ; that at the close of the count the ballot-box shall be locked, key removed therefrom and given to the minority judge; the chief judge takes the ballot-box for safe-keeping, thereupon the judges shall all write their names on a strip ot paper of sufficient length for the following purpose; said strip shall be pasted over the key hole of t':e ballot-box in such a manner that the sig- natures shall extend across the opening iu the lid (where the ballots are dropped in in voting), and so that when the key is inserted it will tear the paper so pasted over the key-holes ; such paper shall be secure! v fastened to the box with sealing wax or other adhesive material. Within three days the ballot-boxes and keys in Baltimore City shall be de- livered to the police commissioners, and in the counties to the clerk of the circuit court, and the boxes shall not be opened for six months, ex- cept by order of the court or a judge in case of a judicial investiga- tion or contested election. (Sections 79 and 80 of article 33 Maryland Code of Public General Laws, 1888, in Record, pp. 641 and 642.) We submit that a compliance with these provisions preserves the ballots, and proof of compliance therewith negatives any claim of sup- posed tampering or handling, and is the strongest possible presumptive evidence that they are the identical ballots. The contestee proved that each and every box was locked and sealed as required by law, delivered to the chief judge, by him carefully kept in his physical custody, and in Baltimore city delivered the next day to the police commissioners, the key delivered to the minority judge and by him delivered to said police commissioners, and in the counties de- livered to the clerk of the court two days thereafter (the testimony as MUDD VS. COMPTON. 165 to these facts is found in the record, pp. 277, 278, 280, 281, 301, 304, 309, 310, 311, 312, 314, 315, 316, 447, 448). This testimony is conclusive and un contradicted. He examined the police commissioners of Baltimore City, the mes- senger or officer of the board, the clerk to the board who was in office when the boxes and keys were delivered, and his successor, who was in office at the time the recount was made, proved that the boxes were placed immediately and kept in a prison room on the second floor of the central police station intended for a cell; that the door of this cell or room was locked by a Yale lock, requiring two keys to open it ; that one key was kept by the secretary of the board in the safe vault in the secretary's office; that this vault had a combination lock, and the combination was known to no one except the secretary and marshal ol police ; he proved by the two secretaries and the marshal of police that no one had access to the vault but themselves, and that it was never left open, and contained all the valuables belonging to the police board of the city; that the keys of the ballot-boxes were placed in this vault, and by every one who had the custody of the boxes and keys that they had not been and could not have been handled or tampered with. Also, as each box was produced, that they bore evidence of not having been tampered with. (Record, pp. 276, 280, 282, 300, 304, 308, 309, 413, 414, 415, 416, 417, 418.) In first precinct of first district of Baltimore County, and ninth dis- trict of Charles County, substantially the same facts by the clerks, deputies, and messengers and the clerk in Baltimore County testified that the ballot-box was carefully locked up in a press by reason of this contest (Record, pp. 444, 445, 446, 447, 448, 452, 460, 461). If it is possible to prove anything has been carefully and securely kept, it has been proven as regards these ballots, and this having been proven, the primary and best evidence of the true vote of the precincts recounted has been given. It manifestly appears that the judges counted for each and every Re- publican candidate all Republican tickets not appearing to be scratched, and thereby gave Mudd votes in cases were Stockbridge's name was printed, and which votes were by accident or design thrown away on Stockbridge. THE VOTE OF CALVERT COUNTY. The official returns as made to the governor gave Mr. Mudd 1 1,138 votes, and Mr. Compton 890 votes (see Record, p. 613, return from the judges of Calvert County). This certificate is dated two days after election and is in the exact form prescribed by the law of the State. (Sec. 69 ; Record, p. 640.) It is therefore evidence of the vote of the county unless it is shown to be wrong by the primary evidence, either the ballots themselves or the count as made by the judges of election in each precinct at the close of the election. The position was taken by the contestee that the evidence offered by the contestant to set aside this return was insufficient and inadmissible for such a purpose. The testimony of the contestant rests largely upon the recollection of the very same persons three months after the elec- tion who two days after the election certified to the governor that Mr. Mudd received but 1,138. (Record, pp. 274 and 275.) The majority of the committee insist that the precinct returns estab- lish the fact. (Record, pp. 746-749.) It will be seen by the testimony (Record, pp. 274, 275) and the certifi- 166 MUDD VS. COMPTO-N. cates (Record, pp. 746-749) that these copies are made from one of the books. It will be seen by reference to the law of the State (Record, p. G39, sec. 66) that it requires two plain, fair, and distinct statements and certificates of the number of votes which shall have been given " to be made out on the books of the polls," and the law requires two poll- books at each poll. These two statements and certificates on the two poll-books are duplicates; each clerk makes out one, and they should agree. A copy of one is not of itself evidence. To set aside and dis- prove the solemn return of the return judges nothing less than the production of the two " books " or certified copies of the duplicate re- turns would suffice. Besides, one of these returns is an imperfect paper in itself, and as a copy is no evidence, as it is neither certified, as required by law, nor in form and substance what the law requires (Record, pp. 747, 639, sec. 67). As evidence it was specially excepted to by the contestee's counsel (Record, p. 779.) It is no answer that the contestee might have shown the return wrong if such was the fact ; he has a right to stand upon the return as made to the governor until successfully assailed. And we may here remark that the return judges, who made the re- turn to the governor, were all Republicans, and it is not to be supposed that they would have made such an error against their own candidate. And it is taxing our credulity too far to make us believe such a mis- take has been made. And we further observe that in this instance the copy referred to in giving the votes is expressed only in figures, very easily changed or manufactured whilst in the custody of a Republican clerk, while the statute says it " shall be written in words at length and not in figures only." We think it would be contrary to law and dangerous in practice to allow the judges of election three mouths after the election, relying on recollection alone, to vary their return based upon such imperfect and partial testimony. REJECTED VOTES CLAIMED BY EACH SIDE. Both the contestant and contestee claim that there were votes tend- ered for them respectively which were improperly rejected by the judges of election. We have reached the conclusion that whenever a voter did tender his vote and his name was upon the list of voters furnished to the judges of election, although the middle name or initial might be wrongly entered, still his vote should be counted as it should have been received by the judges, the object of registration being for the purpose of identification of a voter, or if the name given by the voter was idem sonans with the name registered. By applying this rule a number of votes claimed by each side, as will be hereafter shown, must be rejected. We base our conclusions upon the provisions of the constitution of Maryland and the acts of assembly governing elections. The constitution of the State (article 1, section 1) prescribes the quali- fications of all voters. Section 5 of the same article provides that the general assembly shall provide tor a general registration of all persons possessing the qualifications prescribed by the constitution that the registration shall be conclusive evidence to the judges of the right of the person to vote, and that no person shall vote whose name does not so appear. MUDD VS. COMPTON. 167 The legislature, in accordance with these provisions, have provided for registration, and since the adoption ot the constitution of 1864, in which the same provisions appear, all elections have been held under registra- tion laws. The judges of election are required to take an oath to " permit all persons to vote whose names shall appear on the registry or list of voters furnished to him according to law," and that he u will not per- mit any one to vote whose name shall not be found upon said registry or list of voters" (record, pp. 6, 3G, sec. 48). In registering voters, the register is required to enter the name, giv- ing at least the first Christian name in full, color, residence, etc., showing street and number, etc., of the applicant (record, p. 624, sec. 14). The vote of no person whose name did not appear, either properly or at least by " idem sonans," could have been received by the judges, nor can they be counted by us. The contestant, on pages 13 and 14 of his brief, claims forty of these votes; we allow him, for the reasons stated, the following: M. Hopkins. James E. Kane. George H. Mills. A. W. Herman Miller. William H. Hill. William T. Richardson. Edward Washington. Jacob Frank. John T. Bowen. Daniel E. Gamble. George W. Smith. William F. Coata. Winfield S. Johnson. William H. Brogden. James H. Barnes. John D. Wilder. Joseph H. Sampson. In all, 19. George H. Leutsche. William Alsop. We reject the following, as their names were not, by the testimony of the contestant, on the poll- book or list of voters and presented no cer- tificate as required by law (record, p. 633, sec. 34) : John R. Vitz (25-659). James W. Green (50). James W. Thomas (247), Isaiah Chester (29-67). John Henry Thomas (48- Philip Lyles (247). John H. Costen (32-667). 298). William Thomas (248). David W. Leman (45). Philip Gordon (53-688). David R. Brooks (266). Aquilla Fishpaw (49). Ishmael W. Keller (235). Charles W.Whittemore (165). Lev Cure (49). John F. Thomas (246). In all, 18. James W. Clements (50). Augustin Brown (246). As to Benjamin . Gamble, he does not prove an offer to vote (record, p. 11). The judge of election says he did not offer to vote (291), and his statement that he did not vote because Doctor Hall, the registration officer, said his name was not on the list is contradicted by Doctor Hall, who testifies he was not at the polls that day (328, 420). As to John Taylor, he declined to vote as John E. Taylor, the only name corresponding to his, and clearly his vote can not be counted (record, p. 26, 27). As to Kobert Reed, he was not properly identified either as to resi- dence by street and number or age (Record, p. 36, 710). He was reg- istered, if at all, in October, 1888, as fifty-four years of age. This mau gave his age in January, 1889, as fifty-eight years old Robert Reed, who was registered, as fifty-four years old October, 1888. The contestant also claims 6 votes, on page 12 of his brief, which were rejected, as he admits, because these parties had votfd or others had voted on the names and they were checked off on the list of votes, namely, William Butler, John H. Smith, William Brown, Charles H. Green, Henry Brown, and Thomas Williams. If when these parties offered to vote the names they respectively gave where checked, and either they themselves or others had voted on their names, the judges of election could not receive their votes, for the reason that otherwise they would have allowed 2 ballots to be cast by one registered voter. We therefore reject these 6 votes. As to the 4 votes of Thomas Bell, Samuel H. Booth, Gustavus E. 168 MUDD VS. COMPTON. Cooper, and William Chapman Weems, forjeasons above given, we al- low the contestant the votes of Samuel H. Booth, Cooper, and Weems, but rejectthe vote of Thomas Bell, because he was not identified. (Rec- ord, pp. 286, 287, 288, 289-292.) As to the 3 votes claimed on page 22 of contestant's brief upon no principle of fairness can they be allowed. Not only did be not claim them in his notice, but he attempted in violation of every principle of law to offer this testimony in tlie time allowed him for rebuttal only. (Eules, p. 4.) This testimony was in each case specifically excepted to. (Pp. 493, 494, 556, 557.) The attempt to make this claim in rebuttal comes directly within the case of Lynch vs. Vandiver, Mobley, p. 659, in which the committee say that " testimony offered in rebuttal which seeks to establish facts not entered into in the direct examination, is in violation of every known principle of the laws of evidence, and will not be considered." The contestee had no opportunity to show that these parties had not tendered their votes, or any other evidence tending to deny the claim made by contestant. The contestant in his brief relies upon the act of Congress of May 31, 1870. This act was declared unconstitutional by the Supreme Court. (United States vs. Reese, 92 U. S. Rep., p. 214.) We therefore allow the contestant 19 of the votes claimed by him on pages 13 and 14 of his brief, and three claimed on page 16 in all, 22 votes claimed by contestee to have been wrongfully rejected. Applying the same rule to the contestee, we allow him of the votes claimed by him on page 20 of his brief, the following: Andrew Laiu- hart, George H. Cummings, John B. Garuett, James W. Wheat-ley, John H. Iglehadt, William K. Dawson, B. L. Gover, Clifford Sweeny, Fer- dinand E. Birch, and Benjamin F. Chappelear ; in all, 10 votes. We rejectthe following: Charles F. Buckler, Charles W. McCready, John W. Todd, John H. Turner, Richard H. Canter, John Kalb, Ed- ward Woods, Francis Tolson, James Edelin, Andrew V. Con way, Charles Soper, Albert Berry, and Dalton H. Fisher, because their names were not on the poll- book or list of voters. We also reject William R. Thomas, because his name had been voted ; in all, 14. VOTE NOT COUNTED FOR COMPTON IN SEVENTH DISTRICT OF ST. MARY'S COUNTY. The contestee is clearly entitled to this vote, his name was written under Mudd's, and the writing must prevail. (McCrary, 3d edition, sec. 508.) Mudd, therefore, loses one vote in St. Mary's, and Comptou gaiiis one. Contestant claims that one vote for Comptou in 2d district of Calvert County was scratched, the judges held differently, and properly counted the vote for Compton. (Record 271-272.) Weight is to be given to the decision of judges of election. (Mc- Crary, 3d ed., 465.) Contestant claims a vote for him was wrongly rejected in the sixth district of Charles County. A paster was pasted over the words " for Congress." The testimony of the judges, Sasscer and Cox, clearly shows this (record, pp. 450-457). Article 33, section 65, Statutes of Maryland (record, p. 639), required the ticket should be thrown out. MUDD VS. COMPTON. 169 To recapitulate official vote, as made to the governor : Cwnpton 16,000 Add vote of Charles County 191 Not before the governor , 89 280 Add vote for "Compton" 1 Add 1 vote, seventh district, St. Mary's County 1 Add votes allowed, but rejected by judges of election 10 16, 292 Mudd, official vote 15,819 Add vote of Charles County, fifth and ninth districts 4:52 Add votes allowed, but rejected by judges of election 22 Add vote for " Mudd," S. N. Mudd, and S. E. Mudd 3 Deduct loss on recount Deduct 1 vote, seventh district of St. Mary's County. 16, 255 Plurality for contestee 37 We allow in this enumeration the vote for " Mudd," S.'N. Mudd and S. E. Mudd, to contestant's and also allow upon the same principle the vote for " Compton " in Prince George's, as it was returned to the gov- ernor, and appears on the certificate (Exhibit Coinpton No. 1C), as filed in evidence before the committee. FIRST PRECINCT OF THIRD ELECTION DISTRICT OF ANNE ARUNDEL COUNTY. The effort of the contestant has been to reject the vote of this pre- cinct upon the ground that there was such intimidation and violence as prevented a free and fair election. The law is well settled that the poll can not be rejected unless the violence was such a display of force as ought to have intimidated men of ordinary firmness. (McCrary on Elections, sec. 416, 2d edition.) The contestee claims, and the evidence to our mind sustains the position, that no such intimidation, force, or violence was resorted to. The evidence shows on the part of the contestant (1) That the only guns on the ground that day were some guns which had been brought there by persons, some colored and some white, who were on their way gunning, it being shown to be a long-established custom of many voters in that part of the county (white and colored) to make election day a day of huntiu g. That the only pistol-shots fi red were by some young men, nowhere near the polls, who were shooting at a mark. (2) That instead of it being true that there were any such acts of vio- lence as were calculated to intimidate persons of ordinary firmness, the true state of the case is just this : 1. Not long after the polls were opened (they were opened at 8 a. m.) and after some few white men had voted, a body of colored men, numbering about 100 men, who had as- sembled at a place called the " Mill Pond," about 100 yards from the polls, marched in a body to the polling place, and after some 15 of them had voted, 2 of their number. Hall and Andrew Sampson, who were in the line, were by some young man standing there pushed or shoved out of the line, and told they had no right to vote there, and thereupon Hall, whom the evidence shows had taken an active part in distributing tickets among the colored voters, and was looked 170 MUDD VS. COMPTON. np to as a leader among them, after addressing certain remarks to those around, ordered, according to a large number of the witnesses, and advised, according to others, the whole line of negroes away from the polls, which order or advice was at once obeyed, and in consequence of this order or advice, which was subsequently given to others already at the polling places or on their way thereto, nearly every one if not every one of the 175 colored people referred to in contestant's allega- tion abstained from voting. (3) That according to some of the witnesses it was the same young man who pushed or threw out of line both Hall and Sampson ; but at all events, according to the evidence of a number of the contestant's own witnesses, the whole number of the class of persons described by some of the witnesses as " strangers," and by others as u roughs," and who are alleged to have caused the intimidation of the 175 negro voters, was but three. (4) That according to the contestant's own proof, there were from 50 to 100 colored voters in line, when the two men, Hall and Sampson, were shoved or pushed out of line ; and this number was further in- creased shortly after, as most did not leave the grounds till after 12 o'clock, and there were 161 on the grounds during that time. (5) That according to the overwhelming mass of evidence, as given by the contestant's own witnesses, no blows were struck at any time, no fire-arms used or shown, no threats of personal violence made, not even the hunting guns had then been brought to the grounds when the trouble with Hall and Sampson took place. (6) According to the contestant's own evidence none of the 175 votes were ever tendered to the judges ; on the contrary the voters admit that they refused to tender their votes. The three judges of election and two clerks were examined. The contestant examined two of the judges of election, Hiues and Jubb; Hiues is a Republican, and Jubb, though professing to be a Democrat, was bitterly opposed to Mr. Compton. All the judges and clerks were appointed by the county commissioners of Anne Aruudel County, all of whom were Eepublicans. (Page 342.) At the close of the polls on the day of election all of the judges of election, without protest or demur of any kind, signed the certificate of election, setting forth the holding of the election and the number of votes each candidate had received. (Record, page 718.) And on the very next day after the election Hiues. the Republican j udge, who was the return judge, went to Annapolis with the ballot-box and election returns, and there told Mr. Sprigg Harwood, the clerk of the circuit court for Anne Arundel County, to whom he delivered his re- turns and box, " that there had been no trouble about the polls 5 every- thing has passed off peaceably and quietly." (Record, page 397. See also confirmatory evidence of Woodward, page 435.) Hines testified that he had never been judge of election before (Rec- ord, p. ). In this he is contradicted by a large number of witnesses, and it is shown that he had been judge of election three times before. He first denied he had made any statement to Mr. Harwood. He after- wards said he told Mr. Harwood the election was not fair, and when re- called testifies that he said to Mr. Harwood it was fair inside but unfair outside. He contradicted himself so much his .testimony is unreliable Thecontestee examined Charles H. Williams, the Democratic judge, and both clerks. Testimony of Charles H. Williams was that he was at the polls and in the room from before the polls opened till the ballots were counted ; that he neither saw nor heard any disturbance. (Record, pages 342-344.) MUDD VS. COMPTON. 171 The testimony of Dunlap (p. 453) and Heath (p. 376), the two clerks of the election, was to the same effect. Of the five officers of election, all appointed, as shown by Williams's testimony (p. 342), by the Republican county commissioners, three tes- tified that the election was quiet and peaceable ; and two, one a bitter personal as well as political enemy of the contestee, and the other con- tradicting himself so frequently that his testimony is unreliable, testi- fying that there was a disturbance. And here we may note a significant fact, that the contestant in an ef- fort to sustain Jubb, his witness, called John W. Williams, who testifies that while he would believe Jubb and Hines, that in a case where Will- iams and others testified one way and Hines and Jubb to the contrary he would not believe Jubb and Hines. (Record, p. .) The testimony of this army of negroes, 175, who were there or near there, shows when carefully digested that they did not vote, because Hall, the captain, ordered them not to vote. (Record, p. 92, 97, 98, 103, 106, 107, 109, 116, 119). The following is a sample (206). The testimony of contestee shows that Hall did give this order or advice, and for this reason they did not vote. (Evidence of Chairs, 350; Wales, 361 ; D. H. Williams, 366 j Henry Johnson, 372 ; Watson, 378 ; S. W. Chairs, 379; Ellers, 38; Porter, 384; Brothe, 381.) The testimony of Zachariah Gray, a constable (record p. 357), who was there all day, shows that the only pistol fired was at a mark 100 yards from the polls, and that he stopped it because it frightened the horses. The only pistol-firing shown by contestant is the evidence of William H. Jubb (p. 242). He testifies that others were present, not one of whom, though examined by contestant, testified to the fact. His cross- examination shows him to be a man of no character. If the principle attempted to be applied by the majority of the com- mittee is adopted, that a district or precinct is to be thrown out because a number of voters do not attempt to exercise the right of suffrage, or because a leader insists, as Hall did, that those of his own party shall not vote, all that will be necessary in the future to deprive voters of their choice is that a few shall desist from voting, and the votes of the majority will become nugatory. After a careful review of the entire testimony touching the matter of intimidation, we think that acandid and fair judgmentof this House will be that it is insufficient to authorize us to reject the votes of those citizens who did cast their votes. And we think that the real purpose of this man Hall in collecting his negro partisans and marching to the polls at an early hour when there were but few white men at the polls, was, in fact, not to exercise his right of suffrage orderly and peacefully, but to seize any trifling circumstance which would authorize him to retire and give his orders to his followers not to vote, and in this manner to so antago- nize his white neighbors as to have them disfranchised. Therefore, we recommend the passage of the following resolutions : Resolved, That S. E. Mudd was not elected as a Representative to the Fifty-first Congress from the Fifth Congressional district of Maryland. Resolved, That Barnes Compton was duly elected, and is entitled to retain his seat. L. W. MOORE, of Texas. CHARLES F. CRISP. CHARLES T. O'FERRALL. LEVI MAISH. B. P. C. WILSON, of Missouri. FEANK H. THEEET vs. EICHAED H. CLAEKE. FIRST ALABAMA. Contestant charged that the majority returned for contestee was obtained by systematic fraud on the part of the officers of election in counting for contestee votes in fact cast for contestant. The committee find the frauds proved in the testimony insufficient to overcome the majority returned. The minority agree in the conclusion, but announce their dissent from some of the reasoning by which it is reached. The resolutions presented were adopted by the House March 7, 1890, without debate or division. See Eecord page 2007. (1) Frauds. At prior elections. Frauds at prior elections and the obstruction to the taking of testi- mony in prior election contests may, and often do, throw light upon the political situation in a community, but can not be taken as an excuse for not attempting earnestly in subsequent contests to comply with the rules of evidence. Every election must rest upon its own merits. (2) Conspiracy. Partisan appointment of elections boards, evidence of. Where the course is systematically pursued, of appointing on the election boards to represent the minority or opposition party, persons not indorsed by that party, and as to whose loyalty to the party whose interests they are expected to guard there is a question, or of appoint- ing persons who are unable to read and write, when there would be no difficulty in finding men well qualified in those respects, this ought of itself to be considered evidence of conspiracy to defraud on the part of the election officers. 173 FEBRUARY 21, 1890. Mr. HAUGEN, from the Committee on Elections, submitted the following report: The Committee on Elections, having had under consideration the con- tested election case of Frank EL Tureet, contestant, against Richard H. Clarke, contestee, from the First Congressional district of Alabama, submits the following report : The contestant and contestee were the Republican and Democratic candidates, respectively, for Representative in the Fifty-first Congress, at the election held on November 6, 1888. The ccntestee received the certificate of election, has duly qualified and entered upon his duties and is now occupying his seat as Representative of the district. The certificate of the secretary of state showing the vote cast for contestant and contestee, respectively, reads as follows: THE STATE OF ALABAMA, OFFICE OF SECRETARY OF STATE. From the returns made to this office by the boards of supervisors of the various counties composing the First Congressional district of Alabama, it appears that the following votes were cast for a Representative to the Fifty-first Congress from said district. Counties. Candidates. B. H. Clarke. Frank H. Threet. Scatter- ing. 1,382 1,564 3,480 3,220 1,440 507 633 1,234 1,847 2,408 766 217 2 11, 593 7,105 I, C. C. Langdon, secretary of state, do hereby certify that the foregoing is a cor- rect statement of the returns made to my office, as required by law, of the election held on the first Tuesday after the first Monday in November, 1888, for a Represent- ative in the Fifty-first Congress of the United States from the First Congressional district of Alabama. Witness my hand, and the great seal of the State, at the Capitol in the city of Montgomery, this - day of - , 1888. C. C. LANGDON, [SEAL.*! Secretary of State. 175 176 THREET VS. CLARKE. A plurality for contestee of 4,488 on the face of the returns. This plurality the contestant contends was obtained by systematic frauds on the part of the inspectors and clerks of election in counting votes in fact cast for contestant as having been cast for contestee in a number of precincts, large enough to have elected him (contestant) had the re- turns been honestly made. The contestant in his brief describes the method pursued by his party friends at the polls, and the evidence he relies upon to establish the charges of conspiracy to defraud him as follows : At every beat or voting precinct two or more leadiug Republicans would give out tbe Republican ballots to their Republican friends, and two or more trusted Repub- licans would watch and witness that they were voted ; each kept an accurate? account of the number of tickets he gave out and the number he saw voted. The contestant put these witnesses on the stand to prove these facts, and the vote proven wsis almost in the inverse ratio of the vote as counted by the precinct officers. Such is the status of the present contest and mainly the character of the testimony of the. contestant. The charges of contestant are confined to the four counties of Choc- taw, Clarke, Marengo, and Monroe, and only to those precincts in said four counties hereinafter discussed. It appears upon examination of the evidence that the contestant has strictly confined himself to the method of proof described in his brief. CHOCTAW COUNTY. Mount Sterling beat. The contestant charges that at this precinct he was deprived of fifty-nine (59) votes for the reason that the regular- ly appointed registrar refused to issue to that number of liepublican voters proper certificates of their registration. It seems to be conceded by witnesses for contestee that 59 voters with tickets having the name of contestant upon them appeared and offered to vote, but were refused because they could not furnish certificates of registration, the registrar about 10 o'clock a. m. refusing to issue further certificates, stating that he was out of blanks, and shortly afterwards being called away ; that several hours intervened before the inspectors offered to appoint another registrar, which they finally did, failing however to find any person willing to serve. It is not charged that the registrar acted fraudulently in refusing to continue to issue certificates. His supply of blanks seems to have been exhausted, and he was called away to attend the sick-bed of his father-in-law, who, in fact, died a few days later. The probate judge of the county, who was present according to his own testimony, be- tween 3 and 4 o'clock p. m., with the consent of the inspectors, offered to swear, orally, those who had previously voted in the precinct, and the inspectors offered to receive the votes of those so sworn. But there is no evidence showing how many of the fifty-nine voters yet remained at the polls or how many of them, being legal voters, had previously voted at the precinct. Section 2007, Revised Statutes of the United States, reads as follows : Whenever under the constitution or laws of any State, or the laws of any Terri- tory, any act is required to be done by a citizen as a prerequisite to qualify orentitle him to vote, the offer of such citizen to perform the act required to be done, shall, if it fail to be carried into execution, by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance, or offer to perform or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing to vote, and being otherwise quali- fied, shall be entitled to vole in the same manner and to the same extent as if he had in fact performed such act. THREET VS. CLARKE. 177 Under this law the 59 votes at the precinct under discussion must be counted for contestant. CLARKE COUNTY. Gainesville precinct. The returning officer was the only officer of election who appeared at the opening of the polls on the day of election. He proceeded, at the instance ot contestant's friends, to appoint three inspectors, who were chosen from the colored party friends of contest- ant. These appointed two clerks. This was in pursuance of section 262, Code of Alabama, 1876. Two of these inspectors and one of the clerks testify on behalf of contestant, and from their testimony it appears that the election proceeded quietly until about 3 o'clock p. m., when during a lull in the voting and following a seemingly well-established custom in that precinct, the elect ion officers opened the ballot-box and proceeded to count the votes cast. It then transpired that none of the inspectors could read the ballots. This broke up the election and the ballot-box was carried off by the return- ing officer, seemingly without protest or objection. One of the inspectors swears that 179 votes had been cast at the time the balloting was interrupted. His testimony also tends to show that four of these were white men and the rest colored. There is no evidence showing how these parties voted. The voters were not called as witnesses, and no effort has been made to ascertain how the votes actually cast stood, and the committee can find no precedent for counting the 175 votes claimed by contestant for him. If these votes were cast for him, he has failed to show it, and the failure to have the true result declared was caused by no fault or fraud of contestee or his party friends, unless the failure of the regu- larly appointed inspectors of election to act be considered a fraud, but was occasioned wholly by the illiteracy of the party friends of contest- ant. There can be no effective citizenship that is not based upon intelli- gence and education sufficient to take part in the active administration of the laws. MARENGO COUNTY. Dayton beat. Three witnesses testify for contestant and eight for contestee in regard to this precinct. The precinct returned 307 votes for contestee and 87 for contestant, while contestant claims that 402 votes should be returned for him, and, because of frauds committed by the partisans of contestee, none should be returned for contestee. Doc Daniel, a' witness for contestant, testifies that he is a resident of Dayton beat, has lived there three years and was present at the elec- tion in question : Quest. Was you present at said election? And, if so, state how many votes were polled or voted by the qualified electors of said beat on said day for said office. How many of said votes were voted or polled for Frank H. Threet for said office, and how many for Richard H. Clarke ? Ans. I was present; three hundred and eighty-seven Republican votes and eighty Democratic votes were polled. Quest. Whose name for Congress was on the 387 Republican tickets that you say were voted ? Aus. F. H. Threet. Quest. Who distributed the ballots or votes with Frank H. Threet's name on them at said election and buat on that day, and how many were distributed T Ans. I dis- tributed them ; I can not tell how many were distributed. Quest. Did anybody else beside you distribute any of said votes at said precinct on that day, and, if so, who ? How many did you distribute ? Aus. Yes, William Math- ews and Charley Perkins ; I distributed 80. H. Mis. 137 12 178 THEEET VS. CLARKE. Quest. Whoso- name for member of Congress was on these tickets that you and the other parties distributed as you say ? What was done with these ballets after they were distributed? Ans. F. H. Threet's name was on these ballots, and they were voted after they were distributed. Quest. Who acted as inspectors at said election and who acted as returning officer and clerks and to what political party did they respectively belong ? Ans. Mr. R. W. Price, H. W. Morgan, and W. W. Bruce acted as inspectors ; Alec Archer and Capt. Harder were the clerks ; I don't know who was the returning officer ; they all belonged to the Democratic party. Quest. State whether the votes were fairly counted at said election as cast. Aus. I don't know, sir. Quest. Did any oue keep a list or tally of the names of the persons who voted for Frank H. Tlireet for said office at said election and precinct? If yea, who kept such list ? Ans. Nora Walton and Lee Parker kept a tally of the number, but not of the names. Quest. How many Democrats, if you know, lived in said beat on the day of said election, and how many of them voted in said beat on that day ; and how many Re- publicans lived in that beat on that day, and how many of them voted at said elec- tion for Frank H. Threet ? Ans. I don't know how many Democrats lived in said beat, and I do not know how many voted on that day ; to the best of my knowledge 460 Republicans lived in that beat on that day ; 387 of them voted for Frank H, Threet. Quest. How many of said votes for Frank H. Threet did you see cast on that day ? Ans. Seventy-five (75). Quest. Was said Threet a popular or unpopular candidate? Aus. He was a popular candidate. Quest. Was he not warmly supported by the Republican party in his district ? Aus. Yes, he was warmly supported by the Republican party that day in his dis- trict. Quest. Tell all that you know about the manner in which the election was held in your precinct; if there was any intimidation and unfair counting of the vote; tell all you know abont it. Aus. I don't know if there was any intimidation or not; I don't know if there was any unfair counting or not ; so far as I know about the conducting part, I give one mat) a ticket, and Israel Clarke came and took the man away from me, and took the ticket away from him and scratched something on it, and I didn't know what until he came back to me and gave the ticket back to me ; Israel Clarke had scratched out two names on the ticket that I gave the mau ; the names were F. H. Threet and Mr. Williams; I took the ticket from him and he went on with Israel Clarke. Cross-examination : Quest. How do you distinguish a Democratic ticket from a Republican ticket? Ans. I look at them with the names on them ; one is longer than the other. Quest. Do you tell them by the names on them, and the length, too ? Ans. Yes. Quest. Which is the longest, the Democratic or Republican ticket? Ans. The Democratic. Quest. How many Democratic tickets did you see that day ? Ans. About 300. Quest. How many Republican tickets did you read that day ? I read 75. Quest. How far were you standing from the polls? Ans. About 9 to 10 steps, all day long. Quest. Did you see Wash. Jones on that day ? Aus. Yes, sir. Quest. What was he doing on that day ? Ans He was distributing tickets Re- publican tickets. Quest. How many of the tickets he distributed did you read over or measure ? Aus. I did not read over or measure any ; but they came from the same package as those I distiibuted. Quest. How far was Wash. Jones standing from the polls? Aus. He was standing 9 steps from the polls and about 6 steps from me, and opposite to me. Quest. Was there not another election officer at the election at Dayton that day that you have not mentioned? Ans. Nary one that I remember. Quest. Was not Jack Crawford an officer of that election ? Ans. He was. Quest. What are Jack Crawford's politics ? Ans. Republican. Quest. How long have you known Jack Crawford ? ; Ans. Three years. Quest. Do you know his general character in the community in which he lives f Ans. Yes, sir. Quest. Is it good or bad ? Ans. As far as I know it is very good. Quest. Do yon know the characters of Robt. W. Price, Henry W. Morgan, W. W. Bruce, C. H. Askew, A. H. Archer, and Capt. Harder in the community in which they live ? Ans. I do. THREET VS. CLARKE. 179 Quest. Is the character of each oue of them good or bad ? Ans. Very good. Quest. Could you select from the neighborhood of Daytou beat six men that stand higher in that community as goodcitizeus and men of integrity ? Aus. I could not. Quest. Do you know the Rev. Mr. Moreland ? Ans. I do ; I am not a member of his church. Quest. Do you know Israel Clarke ? Ans. I do. Quest. Do you know his general character ? Ans. Yes; he stands as high in that community as any man, colored or white. Quest. What are his politics? Ans. Democratic. Quest. How long has he been a Democrat ? Ans. I don't know sir. Quest. How did he vote in the last election ? Ans. Democrat. Quest. What do you mean by Democrat ? Ans. He voted a Democrat ticket ; one of the long tickets. Quest. Why did he vote Democratic in this last election ? Ans. I don't know. Quest. How has Israel Clarke voted since he was twenty-one, up to the present time ? Ans. I don't know. Quest. How many times has Frank Threet run for Congress in this district? Ans. I don't know. Quest. Do you know Sam Williams ? Ans. Yes, sir. Quest. Were you at the meeting at the church the night before the election; was Sam Williams there ? Ans. I was; I didn't see Sam there. Quest. Was Sam Williams one of the 387 that you say voted for Threet? Aus. He was not. Quest. At the meeting held at the church the night before the election were not the voters present sworn to vote the Republican ticket the next day? Ans. They were not. Quest. How many were present? Ans. I don't know, sir. Quest. Who was the man that Israel Clarke took off from you that day? Ans. Richard Nathan. Quest. Hr-w many tickets do you say were distributed that day? Ans. I don't know. Rebutting questions : Quest. Please state why you did not give the names of all the persons who dis- tributed tickets when asked on your direct examination ? Ans. I intended to do so, but was interrupted by having another question asked me before I got through naming them all. Quest. Did you say that Israel Clarke is Democratic in politics ? Ans. Yes, sir. Quest. How many colored Democrats was there in Dayton beat ? Aus. I don't know, sir. Quest. Do you know any other colored Democrat except Israel Clarke? Ans. Yes, sir; Dick Browuing. Quest. Do you know any others besides Israel Clarke and Dick Browning? 1 do not. The testimony of this witness has been quoted at length for thereasou that it does not vary materially from that offered as to other precincts in Marengo County, and discloses the general theory of contestant's case. Charles Perkins and William Mathews are offered in support of the testimony of Doc. Daniels. The former swears that he was present at the election; that about 480 votes were polled; that he does not know how many were cast for the contestant and how many for con- testee; that he was issuing Republican tickets to Republican voters, and " issued " 75 ; ' the voters put them in the window "; says about 80 Democrats and about 400 Republicans lived in the precinct; that the contestant was popular with the colored voters. Witness saw nothing unfair about the counting. Cross-examined he testifies to the general good character of the officers conducting the election, except as to one of them, a colored Democrat, Israel Clarke ; but on that point he contradicts the testimony of Doc. Daniels, given above. William Mathews, the third witness, was chairman of the Repub- lican executive committee for Dayton beat and distributed tickets at this election -, distributed 150 tickets, and says, " They were put in the 180 THKEET VS. CLARKE. window voted." "About 385 Eepublican votes were polled there that day, and probably 80 some odd Democratic. " The colored people gen- erally voted the Republican ticket. Like the other witnesses, he says the contestant was a popular candidate, and was warmly supported, and corroborates them as to the good character of the officers conduct- ing the election. On this evidence the contestant asks that the returns from this precinct be subverted; that 402 votes be given to him and none to his opponent. This evidence, standing alone and uncontradicted, would, in the opin- ion of the committee, overcome the prima facie character of the returns and is competent evidence of the charge of conspiracy and fraud on the part of the officers of the election. But the case does not rest here. The contestee calls as a witness J. Crawford, the United States su- pervisor, a Republican, appointed on the recommendation and at the request of contestant, who testifies to his constant presence at the polls during the voting and the count, and who swears unqualifiedly that the election was fairly conducted and the returns honestly made. He is corroborated by R. W. Price, the Democratic United States su- pervisor, as to the fairness and honesty of the election. Israel C. Clark, Richard Browning, and John II. Webb, colored men (two swearing they are Republicans), testify that they supported the coutestee, and that contestant did not enjoy the full confidence of his colored Republican brethren. Frauds at prior elections and the obstruction to the taking of testi- mony in prior election contests may, and often do, throw light upon the political situation in a community, but cannot be taken as an excuse for not attempting earnestly in subsequent contests to comply with the rules of evidence. Every election must rest upon its own merits. The honesty of the election officers testified to by contestant's witnesses is wholly inconsistent with his theory of a conspiracy carried out by those very officers to defraud him. Faumdale beat. Two witnesses were called for contestant. Their testimony tends to show that they distributed the Republican tickets at the polls ; that five of the officers of election were Democrats and two Republicans; that the witnesses were distributing tickets at the front end of the building, at the rear end of which the voters handed in their ballots through a window, and that from the position of the witnesses the window could not be se