-Jlf .-* 

 
 
 UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES
 
 
 
 
 
 
 
 
 ^
 
 47TH CONGRESS, HOUSE OF RE PRESENT ATI VES. t Mis. Doc. 
 1st Session. ) ( No. 57. 
 
 DIGEST OF ELECTION CASES. 
 
 CASES 
 
 OF 
 
 CONTESTED ELECTIONS 
 
 IN THE 
 
 HOUSE OF REPRESENTATIVES, 
 
 FOETY-FIFTH AND FORTY-SIXTH CONGRESSES, 
 
 
 
 FROM 
 
 1876 TO 1880, INCLUSIVE. 
 
 COMPILED BY J. H. ELLSWORTH, CLERK TO THE COMMITTEE ON ELECTIONS, 
 UNDER JOINT RESOLUTION APPROVED AUGUST 8, 1882. 
 
 WASHINGTON: 
 
 GOVERNMENT PRINTING OFFICE. 
 1883.
 
 DIGEST OF ELECTION CASES. 
 
 FORTY-FIFTH CONGRESS, SECOND AND THIRD SESSIONS. 
 
 PETER D. WIGGIXTON vs. ROMTJALDO PACHECO. 
 
 FOURTH CONGRESSIONAL DISTRICT OF CALIFORNIA. 
 
 Held, That the board of supervisors, provided for under sections 429, 430, and 446 of 
 the statutes of California, is an official body having a jurisdiction defined by law, 
 required to keep a record, which is to be signed by its chairman and clerk, and 
 this record, duly certified to the secretary of state, must stand. 
 
 Ex parte affidavits cannot be considered as evidence in these cases. 
 
 The votes of persons whose names are not on the "Great Register" of voters (Cali- 
 fornia) must be rejected. 
 
 Ballots upon which the judges of election had written the names of the voters and 
 the words "challenged, &c., v must not be rejected. If the voter had placed this 
 indorsement upon the ballot, or any other words by which it could be distin- 
 guished, they should be rejected. 
 
 When a ballot clearly designates the office to be filled, and the name of the person 
 voted for, the voter is never permitted to contradict his ballot by evidence that 
 he intended to vote for a different person, or for the same person fer a different 
 office. 
 
 The House adopted the majority report February 7, 1878. 
 Peter D. Wigginton sworn in. 
 
 JANUARY 31, 1878. Mr. JOHN T. HARRIS, from the Committee of Elec- 
 tions, submitted the following 
 
 REPORT: 
 
 The Committee of Elections, to whom were referred the papers relating to 
 the contested-election ease in the fourth Congressional district of Cali- 
 fornia, having had the same under consideration, submit the following 
 report : 
 
 The contestant, Peter D. Wigginton, claims the seat now occupied by 
 Romualdo Pacheco upon the grounds following : 
 
 1. That in the county of Monterey, in the State of California, being 
 one of the counties composing the fourth Congressional district, the board 
 of county canvassers, being the board of supervisors of said county, met 
 at the proper time and place and canvassed the votes cast for Repre- 
 sentative in Congress ; and that said board found, and declared as the 
 true result of the vote, that Peter D. Wiggintou received 988 votes and 
 
 5
 
 6 DIGEST OF ELECTION CASES. 
 
 Rornualdo Pacheco received 1,208 votes for Representative in Congress 
 in said county. That after the adjournment sine die of said board, the 
 clerk thereof, who was not one of the members of the board, altered and 
 changed the vote of said county, so as to make it appear that Mr. Wig- 
 ginton received only 986 votes in said county. That this false and ille- 
 gal return was by said clerk certified to the secretary of state as the 
 true result of the votes cast in said county for Representative in Con- 
 gress. That the returns of the votes cast in all the counties of the 
 fourth Congressional district of said State, as certified to the secretary 
 of state, including the false and illegal return from Monterey County, 
 showed the following result : 
 
 Voted. 
 
 For Roumaldo Pacheco 19, 104 
 
 For Peter D. Wigginton 19,103 
 
 Majority for Pacheco 1 
 
 That by the illegal and fraudulent change made by the clerk of Monte- 
 rey County, whereby two votes were taken from the number received 
 by Mr. Wigginton, the result in said Congressional district was changed, 
 and the sitting member was counted in by one majority, whereas the 
 contestant should have been declared elected by the same majority. 
 
 2. That thirteen persons voted for Mr. Pacheco, in certain precincts 
 and counties of the district, who were non-residents, and not entitled 
 to vote under the laws of the State of California. 
 
 3. That three persons voted for Mr. Pacheco whose names were not 
 on the great register, as required by the laws of that State. 
 
 4. That six persons voted for Mr. Pacheco whose ballots were so marked 
 as to indicate who cast them, and that such ballots must be lejected 
 under the laws of California. 
 
 5. That in two precincts there were more votes counted than there 
 were names on the poll-list ; that the judges in each of these failed to 
 draw out the excess of votes and destroy them. That, by this failure 
 on the part of the inspectors, two votes were counted for Mr. Pacheco 
 that ought not to have been counted. 
 
 6. That there were such irregularities and illegal practices on the part 
 of the inspectors of election and the voters of Saticoy precinct, in Ventura 
 County, as to invalidate the whole vote of the precinct. In this precinct 
 the vote stood 
 
 .For Komualdo Pacheco 85 
 
 For Peter D. Wiggintou 51 
 
 If the contestant should make good the foregoing grounds of contest, 
 he would add to his own vote two votes in the county of Monterey, and 
 subtract from Mr. Pacheco's vote fifty-eight votes; and the result would 
 then be as follows : 
 
 For Mr. Wigginton 19,105 
 
 For Mr. Pacheco 19, 046 
 
 Majority for Mr. Wigginton 59 
 
 A careful examination has been made of each of the grounds of con- 
 test above set forth, with the result following: 
 
 MONTEREY COUNTY. 
 
 In Monterey County, according to the returns first sent to the secre- 
 tary of state, the vote was : 
 
 For Pacheco .. 1/>08 
 
 For Wigginton Wt>
 
 WIGGINTON VS. PACHECO. 7 
 
 Bat contestant claims that those returns should have shown that he 
 received 988, which would have given him a majority of one in the dis- 
 trict. Being constrained to differ with the contestant as to this, the 
 following considerations are presented : 
 
 1st. By the laws of California it is provided that after the officers of 
 the election shall have counted the ballots, of which tally-lists are to be 
 kept, lists must be attached to the tally-lists, containing the names of 
 the persons voted for, and the number of votes given for each candi- 
 date, the number being written at full length, must be signed by the 
 members of the board, and attested by the clerks. 
 
 These tally-lists, with the list of persons voted for, with the number 
 of votes received by each, together with the ballots, &c., are required 
 to be sent to the clerk of the county at the county seat. 
 
 These returns are required to be canvassed by the board of super- 
 visors of the county. This board of supervisors is not a board simply 
 created for the purpose of canvassing the returns of an election, and 
 which ceases to exist upon that duty being discharged; but it is an 
 official body of a continuing character, required to keep a record of its 
 proceedings, holding sessions day after day on one day signing and 
 attesting the proceedings of the day next preceding, &c. Its char- 
 acter is sufficiently shown in the opinion of Mr. Justice Khodes, at the 
 beginning of that opinion, on page 34, part first, of the record. As to 
 this there can be no doubt, and it is an important fact to be noted. 
 
 The duties of this board touching the matter of elections are thus 
 defined by the statute : 
 
 SEC. 4046. Subdivision 3. To establish, abolish, and change election-precincts, and 
 to appoint inspectors and judges of elections, canvass all election-returns, declare the 
 result, and issue certificates thereof. 
 
 SEC. 4030. Subdivision 1. The clerk of the board must record all the proceedings of 
 the board. 
 
 SEC. 4029. The clerk of the county is ex-offino clerk of the board of supervisors. 
 The records must be signed by the chairman and the clerk. The clerkmust be paid 
 each compensation as is provided by law in full for all services as clerk of the board. 
 
 This board having this jurisdiction, the statute further provides as to 
 the manner of canvassing the returns in the following sections : 
 
 SEC. 1281. The canvass must be made in public, and by opening the returns and 
 estimating the vote of such county or township for each person voted for, and for and 
 against each proposition voted upon at such election, and declare the result thereof. 
 
 SEC. 1282. The clerk of the board must, as soon as the result is declared, enter on 
 the records of such board a statement of such result, which statement must show 
 
 1. The whole number of votes cast in the county. 
 
 2. The names of the persons voted for and the proposition voted upon. 
 
 3. The office to fill which each person was voted for. 
 
 4. The number of votes given at each precinct to each of such persona, and for and 
 against each of such propositions. 
 
 5. The number of votes given in the county to each of such persons, and for and 
 against each of such propositions. 
 
 Here, then, we have an official board, having a jurisdiction denned 
 by law, required to keep a record, which is to be signed by its chairman 
 and the clerk. 
 
 The supreme court of California, in the litigation over this very case, 
 said of this record thus made (see page 34 of the record in this case) : 
 
 A record kept and authenticated in the manner provided by those two sections (4030, 
 4029) is the evidence of the proceedings of the board, and is the only evidence thereof in 
 cases u-here the proceedings are required to be entered of record. 
 
 Then the statute further provides that this record shall be certified 
 to the secretary of state, as will appear by the following sections : 
 
 SEC. 1344. The clerk of each county, as soon as the statement of the vote of his 
 county at such election is made out and entered on the records of the board of super
 
 8 DIGEST OF ELECTION GASES. 
 
 visors, mnst make a certified abstract of so much thereof as relates to the vote given 
 for persons for Representative to Congress. 
 
 SEC. 1345. The clerk must seal up such abstract, indorse it "Congressional Election 
 Returns,'' and, without delay, transmit it by mail to the secretary of state. 
 
 And from the certified copies or abstracts of these records from the 
 various counties the secretary of state makes his certificate to the gov- 
 ernor, showing the person having the highest number of votes in the 
 district. 
 
 From this it will be seen that the several counties have records of the 
 votes cast in them respectively, and that in the office of the secretary 
 of state is a record of the votes cast in all the counties. From the 
 record thus made and kept in the office of the secretary of state the 
 certificate was sent to the governor, showing that coutestee had a ma- 
 jority of the votes cast in the district, and on which the governor issued 
 to him his certificate of election. 
 
 Now, the claim of the contestant in this case is that, as to Monterey 
 County, he should be allowed 988 votes ; whereas the record of that 
 county, as transmitted by the clerk to the secretary of state, only shows 
 him to have received 986. 
 
 It is not disputed that the record thus transmitted shows that the 
 contestant received only 986. He seeks to impeach that record. It 
 certainly imports verity. We do not contend that the committee or the 
 House cannot go behind it and ascertain the real facts; but we do con- 
 tend that it must be presumed to be correct until the contrary is proven j 
 and it is incumbent on the contestant to prove that it is not correct. 
 
 The only proof he has offered 'consists of ex-parte affidavits, which 
 cannot be used or considered for such a purpose. The affidavits of 
 Blankenship and Gordon may therefore be dismissed from considera- 
 tion. 
 
 But it appears in the record that the contestee instituted a proceed- 
 ing in mandamus against the secretary of state to compel him to certify 
 the vote according to the records of his office, created as above shown 
 to be required by law, and on his petition in that case the contestee 
 Bet forth an affidavit made by the clerk of Monterey County touching 
 the facts as to the canvassing the returns of that county, and it is 
 claimed by the contestant that the contestee having set forth that affi- 
 davit in his petition, which was sworn to by him, it may be considered 
 as evidence against contestee to impeach this record. Without con- 
 ceding this to be sound as a legal proposition, and for the purpose of 
 the argument conceding that this affidavit may be used as evidence, it 
 certainly will not be denied that the whole of it is to be taken j and that 
 being the case, it completely disposes of this controversy as to Monterey 
 County. As this affidavit is made to play so important a part in this 
 case, it is proper to quote it in full. It is as follows : 
 
 I, John Markley, county clerk of Monterey County, and ex officio clerk of the board 
 of supervisors of said county, do hereby certify as follows, to wit : That on the 13th 
 day of November, 1876, the board of supervisors of said county met at their usual 
 place of meeting, in the office of the county clerk of said county, to canvass the vote 
 polled in said county on the 7th day of November, A. D. 1876; that there were pres- 
 ent at said meeting Supervisors Edwin St. John, S. B. Gordon, and A. J. Blanken- 
 ship. The board organized by electing Mr. Blankenship chairman pro tern, of said 
 meeting. The board proceeded -to canvass the vote, Mr. Blaukenship opening the 
 large envelopes containing a copy of the great register, poll-list, and tally-list, and 
 handing to Mr. Gordon the tally-list. 
 
 Mr. Gordon read out the vote received by each person, and as said vote was read 
 out by Mr. Gordon the clerk or his deputy took down the same with a lead-pencil in a 
 tabulated statement prepared for that purpose. At the same time John B. Scott, 
 county auditor, and L. P. Carter kept an account of so much of said vote as related to 
 members of Congress, as the same was read out by Mr. Gordon.
 
 WIGGINTON VS. PACHECO. 9 
 
 After the board had opened all the envelopes, and counted all the votes as per the 
 tally-list therein contained, they directed the clerk to foot up the vote as the same ap- 
 peared on the Tabulated statement kept by said clerk. After footing the same and as- 
 certaining the result of the vote on county officers, after passing an order declaring 
 the county officers receiving the highest number of votes for the offices which they had 
 been voted duly elected, directing the clerk to issue the proper certificates to them, 
 the board adjourned sine die. At the time the board adjourned, as aforesaid, the vote 
 stood, on the tabulated statement kept by the said clerk, at San Lorenzo precinct, P. 
 D. Wigginton, 59 ; and for the said P. D. Wigginton in the county, 988. That about 
 one hour after the adjournment of said board, and before the pencil-minutes and tab- 
 ulated statement kept by the clerk had been transcribed to the minutes of said board, 
 Mr. St. John, a member of said board, returned to the office and stated to me that he 
 thought a mistake had been made in the vote for Congressman ; that Mr. Scott and Mr. 
 Carter only had 986 votes for Mr. Wigginton. We looked over the figures which I had 
 made and found that they had been added correctly. I then gave to Mr. St. John a 
 copy of my figures of the vote for Congressman, and suggested to him that he compare 
 the same with the figures of the vote as the same had been kept by Mr. Scott, and 
 said that he would in that way find out where or in which precinct the difference was, 
 and if there was a mistake, we would correct it in the morning. 
 
 After supper that night I wrote up the minutes and transcribed the statement 
 made in pencil to the'minute-book. On the morning of November 14, Mr. J. W. Leigh 
 and myself were in the clerk's office. Mr. St. John came in and stated to me that the 
 difference in the figures was in San Lorenzo precinct. I got the tally-list from San 
 Lorenzo precinct, and Mr. St. John, Mr. Leigh, and myself examined the same. We 
 found that Mr. Wigginton had only received 27 votes, whereas the tabulated statement 
 and the minutes, as they stood then, had allotted to Mr. Wiggiuton 29 votes in said 
 precinct. The tally-list was in all respects regular. The 27 was in marks in figures 
 twice and written twice. 
 
 We all three felt fully convinced that Mr. Wigginton had received in the precinct 
 only 27 votes, and the clerk had made a mistake in putting down 29. I then and 
 there changed the vote, as entered on the minutes, from 29 to 27, and the total vote 
 from i?88 to 986, and thereafter, and on the same day, the chairman of said board 
 signed the mimites. 
 
 That on or about the 15th day of November, 1876, I made an abstract of statement 
 of so much of said vote as related to persons voted for Representatives to Congress, 
 and duly certified the same to the secretary of state of California; that said state- 
 ment so certified as aforesaid, only gave Mr. Wiggiuton 27 votes in said San Lorenzo pre- 
 cinct, and only gave him 986 in the county ; that the minutes of said board, in rela- 
 tion to said vote, have not been changed since the same were signed by the chairman 
 as aforesaid: that said minutes had not been changed since I made and forwarded the 
 abstract as aforesaid ; that the minutes of said board now show 27 votes in San Lo- 
 renzo preciuct and 986 votes in the county for Mr. Wigginton, aud that said abstract 
 of statement, so forwarded as aforesaid, contains a full, true, and correct statement of 
 the vote for Representative of Congress, as the same appears entered in the records of 
 said board of supervisors at the present time. 
 
 [SEAL.] JOHN MARKLEY, 
 
 County Clerk. 
 \ 
 
 From this it will be seen that the two votes ill question occurred in 
 putting down the vote of San Lorenzo precinct; that in making a pen- 
 cil-memorandum, to be transcribed to the record, the clerk put down for 
 contestant 29 votes, aud afterward changed it to 27 votes in the man- 
 ner described in the affidavit, and for the reasons therein set forth. 
 
 It must be borne in mind that the contestant nowhere attempts to 
 prove, in the manner pointed out by the statute in reference to con- 
 tested elections, that he received twenty-nine votes in San Lorenzo pre- 
 cinct. He relies upon the evidence disclosed in the mandamus pro- 
 ceedings in the supreme and district courts of California to prove that 
 the count made by the board of supervisors showed that he received 
 twenty-nine votes in that precinct. The n/esident of the board and the 
 clerk having signed a record showing only 986 votes in Monterey 
 County for contestant, and this record having been duly certified to the 
 secretary of state, and the supreme court of California having decided, 
 after a careful examination of all the facts as they appeared in con- 
 testee's petition and contestant's answer, that the record thus certified
 
 10 DIGEST OF ELECTION CASES. 
 
 to the secretary of state must stand, under the laws of California, until 
 set aside or shown to be erroneous by a contest, under the statute in 
 such cases made arid provided, your committee are of the opinion that 
 the truth or falsity of the clerk's return is not put in issue in this con- 
 test, and that the record thus certified by the clerk in the manner re- 
 quired by the law of California must stand. If contestant had felt him- 
 self injured by that record, it was his duty and privilege to show its 
 falsity in the manner pointed out in the statute. 
 
 NON-RESIDENT VOTERS. 
 
 2. Your committee have carefully examined the evidence relating to 
 the non-residence of the thirteen persons who are alleged by the con- 
 testant to have voted for Mr. Pacheco. The cases are as follows : 
 
 F. W. Hoffman resided at Pear-Tree Eanch, in San Diego County, forty- 
 eight miles from the city of San Diego, in December, 1874, when he left the 
 State and went to Arizona and Nevada, and while absent was engaged 
 in mining and prospecting. He says in his evidence that he left there 
 (Pear-Tree Kauch) with the intention of returning there, because he 
 thought he owned property there. He returned to San Diego County 
 twelve days before the election, and was in San Diego City, where he 
 voted, only four days before the election. He had been in San Diego 
 before he left the State, but had no residence there, and did not go there 
 to remain. If he had returned to Pear-Tree Eanch he might have voted 
 there unless he was disqualified by section 1239, paragraph 7, of the 
 Statutes of California. It is clear, however, that he never had a legal 
 residence in the city of San Diego, where he voted. He voted for Mr. 
 Pacheco. His vote must be rejected. (Becord, pp. 4, 7, 8, 22.) 
 
 Thomas B. Landhardt voted in the city of San Diego ; came from Los 
 Angeles to San Diego October 14, prior to the election ; had been in 
 the county only twenty-two or twenty-three days before the election. His 
 vote was challenged, and the inspectors wrote on the back of his ticket 
 his name and the words, "Challenged because not in the precinct thirty 
 days; challenge disallowed," and signed their own names to this state- 
 ment. The county clerk produced the box containing the ballots and 
 identified this ballot. It contained the name of Eomualdo Pacheco for 
 Representative in Congress. The vote must be rejected, as the law of 
 California requires thirty days' residence in the precinct to entitle a 
 person to vote. (Eecord, pp. 12, 13, 14, 17.) 
 
 Charles Gilbert resided for thirty days immediately preceding the 
 election at Alvah Mitchell's house. He voted at Poway precinct, San 
 Diego County. Alvah Mitchell was not allowed to vote in the precinct 
 because he did not live in it ; and one witness testified that he knew the 
 line dividing the precinct, for he saw it surveyed, and that Mitchell's 
 house was not in the precinct. There can scarcely be any doubt as to 
 how he voted. (Eecord, pp. 28, 29, 23.) 
 
 Frederick Eeetzke testified that he (Eeetzke) voted for Mr. Pacheco, 
 and that 
 
 Gilbert always told rue he was a Republican; he asked me which were the Republi- 
 can tickets ; he teok one, folded it np, and, to my honest belief, put it in. * * * I 
 only showed him the Republican picket, with Pacheco's name on it; he took it, folded 
 it up, and, to my honest belief, voted it. (Record, p. 28.) 
 
 In the absence of the voter's own evidence, it would be difficult to 
 prove more certainly than is done in this case for whom a person voted. 
 A person cannot be compelled to state for whom he voted ; and the Su- 
 preme Court of the United States has expressly decided that where a
 
 \VIGGINTOX V.S. PACHECO. 11 
 
 witness cannot be coui[)elled to answer be need not be called. (6 Peter's 
 Eepts., 352, 307.) But Mr. Paeheco might have called the voter, and if 
 he had not claimed his privilege, he could have made it clear for whom 
 he did vote. Mr. Paeheco not having done .so, nor having shown his 
 inability to procure his deposition, we may infer that Gilbert, if pro- 
 duced, Avould have corroborated the witness whose deposition is in the 
 record. Gilbert did not reside iu the precinct where he voted, and his 
 vote must be rejected. 
 
 Charles Waterman voted at Mayfield, Santa Clara County. He was 
 a single man. He lived in Mayfield four or five years. Six or eight 
 mouths before the election he sold his interest in the hotel business ; 
 said "the people of Mayfield might go to thunder; he wanted nothing 
 more to do with them, and left" there. He said "he left this town for 
 good. " He took employment in a circus, and traveled from place to 
 place in California and Oregon. He returned to Mayfield on the morn- 
 ing of the election. His vote was challenged. He swore it in, and left 
 the town on the same day. It is conclusively shown that he voted for 
 Mr. Paeheco. The law of California says " that place must be consid- 
 ered and held to be the residence of a person iu which his habitation 
 is fixed, and to which, whenever he is absent, he has the intention of 
 returning. " Waterman having left Mayfield " for good, " as he declared 
 when he took his departure, if he should afterward conclude to return, 
 he must acquire his residence again the same as if he had never resided 
 in the place. Under the law of California, and by his own declaration, 
 he was not a resident of the precinct in which he voted. His vote must 
 be rejected. (Record, pp. 33, 34, 40, 47.) 
 
 Contestant submitted evidence tending to prove that William Pratt, or 
 <x. C. Pratt, as some of the witnesses call him, was a non-resident of the 
 precinct where he voted, and that he voted for the sitting member. 
 The testimony iu reference to this voter will be found iu the record, 
 pages 33, 36, 40, and 42. but we do not think it sufficient to establish 
 the fact of non-residence. (Record, pp. 34, 36, 40, 42.) 
 
 Moses Atkinson voted at Mayfield, in Santa Clara County. He rented 
 a ranch two miles from Mayfield, across the creek, in San Mateo County. 
 One witness, Decker, testified (Record, p. 52) that Atkinson told him 
 the night of the election that he lived on the ranch, but he claimed his 
 residence iu Mayfield, because he slept more in Mayfield than on the 
 ranch. He was a siugle man, and his brother also lived on the ranch. 
 When iu Maytield he slept at the hotel; he kept his horses on the ranch. 
 Another witness, Jenkins, testified that Atkinson was a resident of San 
 Mateo County for the last one or two years before the election ; that he 
 rented land and lived there; that he voted the whole Republican ticket, 
 and that he always said so. It is clear from the evidence that Atkinson 
 lived at the ranch in San Mateo County at the time of the election. The 
 fact that he slept more at Mayfield, where he voted, than at the ranch, 
 does not affect the question of residence. The law of California pro- 
 vides that (section 1230, paragraph 5) "A person must not be considered 
 to have gained a residence in any precinct into which he comes for tem- 
 porary purposes merely, without the intention of making such precinct 
 his home." This provision of law fixes Atkinson's residence in San 
 Mateo County. His ignorance of the law cannot legalize his vote in 
 Santa Clara County where he voted. His vote must be rejected. 
 
 Joseph Dickersou voted at Maytield. Evidence was taken tending to 
 show that he was a non-resident and that he voted for Mr. Paeheco. 
 But neither fact is conclusively proven. (Kecord, p. 34.) 
 
 William M. Beekman voted in Saticoy precinct, Ventura County. He
 
 12 DIGEST OF ELECTION CASES. 
 
 was probably a non-resident, ^ut it does not satisfactorily appear for 
 whom he voted. (Record, pp. 50, 52, 57, 59.) 
 
 F. C. Kelley was telegraph-operator in the Signal Service, United 
 States Army, at Campo, San Diego County. He enlisted in the Signal 
 Service Corps in Cincinnati, Ohio ; came to California in that service, 
 and continued in charge of the station at Campo from March, 1875, un- 
 til the day of the taking of his deposition July 19, 1877. Was mar- 
 ried, and his family were with him at Campo. He had never been in 
 .California until he went there in the United States service. The fol- 
 lowing questions and answers relate to his evidence : 
 
 Q. Where did you reside on the 7th day of November, 1876? A. At a place called 
 Campo, in San Diego County, California. 
 
 Q. How long had you resided there ? A. A year, eight months, and three days prior 
 to the election. I came there the 4th of March, 1875. ^Eecord, pp. 24, 25.) 
 
 This is the testimony of the voter, and may be regarded as his under- 
 standing of the law of his residence. But his judgment upon a ques- 
 tion of this kind cannot control the decisions of courts or of this House. 
 The law of the State of California, which must control in this case, is 
 as follows: 
 
 A person must not be held to hare gained or lost residence by reason of his presence 
 or absence from a place while employed in the service of the United States or of this. 
 State, nor while engaged in navigation, nor while a student at any institution of learn- 
 ing, nor while kept in an almshouse, asylum, or prison. (Section 1239, paragraph 2.) 
 
 Aside from the statutory provision, the well-recognized rule of law 
 governing in cases of this kind is this : that the fact that an elector is 
 in the Army does not disqualify him from voting at his place of resi- 
 dence ; but he cannot acquire a residence so as to qualify him as a voter by 
 being stationed at a particular place while in the service of the United States 
 (People vs. Riley, 15 Cal., 48; Hunt vs. Richards, 4 Kaiis., 549; Biddle 
 vs. Wing, Clark & Hall, 504; McCrary, sec. 41.) 
 
 The person in question having gone to California in the military serv- 
 ice of the United States, his legal residence remained at the place of 
 enlistment, and he could not acquire a residence in California while in 
 that service. His vote must be rejected. He testified that he voted 
 for Mr. Pacheco, and upon this point there is no dispute. 
 
 James Quails voted at Saticoy precinct, Ventura County. Was in 
 the precinct only ten days prior to the election. He had no fixed hab- 
 itation. His occupation was a cattle-herder. He worked for Mr. Ran- 
 dolph, on the Sespe, from about the 23d of July, 1876, probably up to 
 the time he came to Saticoy; but he was not in Saticoy thirty days pre- 
 vious to the election. He said his residence was on the Sespe on the 
 7th day of November, the day of the election. He was in Mr. Ran- 
 dolph's employ in December after the election. The Sespe was not in 
 Saticoy precinct. He said he voted the Republican ticket, and it was 
 proved that Mr. Pacheco's name was on that ticket. His vote must be 
 rejected on the ground that he was a n,on-resident of the precinct. 
 (Record, pp. 51, 53-55, 56, 63, 77, and 78.) 
 
 Pedro Parris voted in Ventura precinct, Ventura County. On the 
 9th day of June, 1876, he was a resident of Ojai or Canada precinct, in 
 that county. Was there arrested, charged with grand larceny, and on 
 the 14th day of June was committed to the county jail, in default of 
 bail, to await the action of the grand jury. The jail was in Ventura 
 precinct, where he voted. After he was committed to jail his family 
 moved into Ventura precinct. He was released from jail within fifteen 
 days prior to the election. His vote was challenged but sworn in. It 
 is clear that he voted for Mr. Pacheco. The same rule as to residence
 
 WIGGINTON VS. PACHECO. 13 
 
 must be applied to this person as was applied to Mr. Kelley already 
 referred to. He could not acquire a residence in Ventura precinct while 
 in prison. His vote must be rejected. (Record, pp. 65, 67, 68. 70, 74, 
 75, and 84.) 
 
 Juan Parris voted in Ventura precinct, Ventura County. Came to 
 Ventura about twelve days before the election to get his brother Pedro 
 out of prison. He lived in Ojai or ISTordhoff precinct prior to that time. 
 His vote was twice challenged. The first time he refused to take the 
 oath. Afterward he came back to the polls; was again challenged, 
 and took the oath and. voted. The evidence is conclusive that he did 
 not reside in the precinct where he voted, and his vote must be rejected. 
 He voted for Mr. Pacheco. (Record, pp. 68, 70, 74, 75, and 84.) 
 
 J. A. Scott voted at Ventura precinct, Ventura County. By his'own 
 evidence he was not a legal voter. Prior to September 14, 1876, he 
 lived with his family at Lyons Station, Los Angeles County. He there 
 formed an intention to remove to Ventura precinct, and went there to 
 secure a house. He returned to Lyons Station, and remained there with 
 his family until about the 26th of October, prior to the election, when, 
 he went with his family to Ventura. He began housekeeping about 
 the 1st of November. (Record, pp. 72, 77, and 84.) The law of Califor- 
 nia covers his case. Section 1239, paragraph 10, is as follows: "The 
 mere intention to acquire a new residence, without the fact of removal, 
 avails nothing; neither does the fact of removal without the intention." 
 His vote was challenged. He took the oath required by law and voted. 
 He was not a legal voter. It was stated in the evidence that he was a 
 Republican, and was "voted" by those who were working for Mr. 
 Pacheco. Mr. Scott's deposition was taken by Mr. Pacheco's attorney 
 He was not asked how he voted. The proof that he voted for Mr. 
 Pacheco is sufficient to shift the burden upon the party seeking to sus- 
 tain his vote, and, inasmuch as the elector was produced and sworn, 
 and no eftbrt was made to show for whom he voted, it may be assumed 
 from all the evidence that he voted for the sitting member. (McCrary, 
 sections 293. 294 ; Cushiug's American Parliamentary Law, sections 
 199, 210.) 
 
 NOT ON THE GREAT REGISTER. 
 
 The contestant alleges that three persons voted for the sitting mem- 
 ber whose names were not on the great register. 
 
 Juan de Dios Ortega and his brother Pedro Ortega, voted at Campo 
 precinct, San Diego County, for Mr. Pacheco. Their names were not 
 on the great register, as required by law, and their votes must be re- 
 jected. (Record, pp. 15, 18, 26, and 27.) 
 
 Pedro Lopez voted at Anaheim precinct, Los Angeles County, for 
 Mr. Pacheco. It is alleged that his name was not on the great register. 
 There was a name of Pedro Lopez on the register, but a witness stated 
 there were two of that name, and that the one on the register lived in 
 Los Angeles City. The evidence is not conclusive on this point. The 
 vote should be counted. (Record, pp. 31, 32.) 
 
 MARKED BALLOTS. 
 
 The law of California on the subject of marked ballots is as follows : 
 
 SEC. 1206. When a ballot found in any ballot-box bears upon the outside thereof 
 any impression, device, color, or thing, or is folded in a manner designed to distin- 
 guish sm-h bailor from other legal ballots deposited therein, it must, with all its con- 
 tents, be rejected.
 
 14 DIGEST OF ELECTION CASES. 
 
 There were six ballots voted for Mr. Pacheco upon which the judges 
 of election indorsed the names of the voters and the words " Challenged 
 because not in the precinct thirty days challenge disallowed," and then 
 signed one or two names of the inspectors of the election. While the 
 strict letter of the law would exclude these ballots, yet the spirit of the 
 law is evidently otherwise. If the voter had placed this indorsement 
 npon the ballot, or any mark whatever by which it could be distin- 
 guished from other ballots, they should be rejected. The law was made 
 to protect the voter, and not to disfranchise him. 
 
 MORE BALLOTS THAN NAMES ON THE POLL LIST. 
 
 In two precincts, Saticoy and Lan Buenaventura, there were more 
 ballots counted than there were names on the poll-list ; but it does not 
 appear who got the benefit of the excess. 
 
 SATICOY PRECINCT. 
 
 The contestant alleges that there were such illegal practices at this 
 precinct as to invalidate the whole poll. The law of California requires 
 that no tickets shall be folded or unfolded or exhibited within 100 feet 
 of the polls. This was done duriug the whole day at this precinct. 
 But while the parties who violated the law may be punished, the law 
 was not intended to provide that such conduct should invalidate the 
 election. We cannot see any good reason for rejecting this poll. 
 
 CONTESTANT'S CASE. 
 
 This concludes the questions raised by contestant. Recapitulating, it 
 will be seen that his allegations as to twelve persons who voted for Mr. 
 Pacheco, and who were not entitled to vote, have been sustained. 
 
 THREE OTHER CASES. 
 
 The contestant alleges that two persons by the name of Smock, and 
 another whose name is not given, voted at Bakersfield, Kern County, 
 for Mr. Pacheco, who were not residents of the precinct for thirty days 
 preceding the election. Depositions were taken in regard to -these per- 
 sons, in pursuance of notice in the contest, in due time, attorneys of both 
 parties being present, and such depositions were properly forwarded by 
 mail to the Clerk of the House of Representatives. But these deposi- 
 tions have never been received by the Clerk or any officer of the House. 
 The contestant has obtained the ex parte affidavits of E. E. Calhoun, who 
 was contestant's attorney, and of Samuel L. Cutter, who was contestee's 
 attorney, at the taking of these depositions (Record, pp. 94, 95, and 96), 
 which affidavits, sworn to October 18, 1877, after the assembling of the 
 special session of Congress, set forth the substance of the lost deposi- 
 tions. If we were to consider as legal evidence these ex parte affidavits, 
 one of them made by Mr. Pacheco's attorney, we should be compelled to 
 reject the votes of these three persons. But we are not permitted to con- 
 aider ex parte affidavits as a part of the evidence in the case. If the facts 
 established by the lost depositions were material to the decision of the 
 matters in controversy, and if the three votes in question should be suffi- 
 cient to determine the result, the contestant's remedy would have been 
 to retake the depositions, giving due notice to the opposite party. But 
 not having discovered the loss until Congress assembled, he has endeav- 
 ored to supply the lost depositions in the manner indicated.
 
 WIGGINTON VS. PACHECO. 15 
 
 ILLEGAL VOTING. FOR CONTESTANT SUBMITTED BY CONTESTEE. 
 
 The contestee alleges that the following persons voted for Mr. Wig- 
 ginton, and were illegal voters: 
 
 Jesus Yorba voted in San Diego, but was a resident of Los Angeles. 
 It is alleged that he voted for Mr. Wigginton. It is proven that he had 
 not resided in the precinct where he voted thirty days previous to the 
 election. But the evidence is conflicting as to the candidate for whom 
 he voted. Yorba was a Democrat, and went to the polls and voted 
 with one Angle Smith, also a Democrat. Yorba was what is called 
 "a native Californian," and Smith was a half-breed American and Cal- 
 ifornian. It was proven that the native Califomians, as a class, voted 
 for Mr. Pacheco, including those who claimed to be Democrats, and 
 were unwilling to acknowledge that they would vote for a Republican. 
 And one witness gave it as his opinion that Jesus Yorba voted for Mr. 
 Pacheco. In the midst of this conflicting evidence it is not certain for 
 whom he did vote. His vote, although illegal, cannot be deducted from 
 the vote of either of the parties. (Record pp. 99, 100, 101, 104, 107.) 
 
 George M. Clark voted for Mr. Wiggintou at San Diego. He wrote 
 his own name on the bottom of the ticket with a lead pencil. (Record, 
 pp. 100-105.) The law of California in reference to marked ballots is as 
 follows : 
 
 SEC. 12(Xi. When a ballot found in any ballot-box bears upon the outside thereof any 
 impression, device, color, or thing, or is folded in a manner designed to distinguish 
 such ballot from other legal ballots deposited therein, it must, with all its contents, 
 be rejected. 
 
 SEC. 1207. When a ballot found in any ballot-box bears upon it any impression, 
 device, color, or thing, or is folded in a manner intended to designate or impart 
 knowledge of the person who voted such ballot, it must, with all its contents, b 
 rejected. 
 
 These provisions were evidently intended to secure to the voter abso- 
 lute secrecy as to his ballot, and to place it within his power to vote a 
 ballot which could not be distinguished by the election officials, the 
 challengers, or outsiders from any other ballots that were being voted. 
 Section 1206 relates wholly to marks on the outside of the ballot, and 
 cannot be applied to the ballot in question, as it is conceded that this 
 voter wrote his name on the face of the ballot. And it is very doubtful 
 whether the strict letter of the other section (1207) applies to Clark's 
 ballot. There was nothing on the face of the ballot " to designate or im- 
 part knowledge of the person who voted such ballot." The inspectors were 
 not authorized to presume that Clark voted this ticket merely because 
 they found his name upon it. If any presumption is to be indulged in, 
 it is this: that the name written on the ballot was intended to be voted 
 for, instead of the printed name next above it. Hence this ballot had 
 nothing on it to designate or impart knowledge of the person who voted 
 it. The person who voted it could identify it, and so could every voter 
 identify his ticket if he had scratched one name and written another 
 upon it. He would recognize his own handwriting. But the statute 
 was not intended to place it out of the power of each voter to recog- 
 nize his own ballot. It was intended to protect the voter in his right to 
 vote a secret ballot. If there were any doubt as to the letter of the 
 law, there can be none as to the spirit of it. There is no charge or 
 suspicion of fraud, intimidation, or improper influences being exerted 
 over the voter. It would certainly be perfectly legal for the voter to 
 publish how he voted. The evidence in this case fails to disclose what 
 was done by the inspectors with Clark's ballot. Nothing is said as to 
 whether they counted or rejected it. If it be contended that the law
 
 16 DIGEST OF ELECTION CASES. 
 
 required that the ballot should be rejected, then, in the absence of proof 
 to the contrary, we must presume that the election officers did their 
 duty, as required by law, and rejected it. And if it is contended that 
 the ballot was a legal one, then we must assume, in the absence of 
 proof to the contrary, that the officers have done their duty and counted 
 it. In either event we are not at liberty to change the result by count- 
 ing or rejecting this ballot. 
 
 John Doran voted for Mr. Wigginton in the third ward of the city 
 of San Diego. He was a laborer, without family, and worked from place 
 to place. He had only been in the precinct where he voted about a 
 week, and at the hotel where he stopped he gave his residence at Cajon, 
 which is in another precinct. His vote must be rejected. (Record, p. 
 102.) 
 
 Joseph Marks and John Geddens voted for Mr. Wigginton at An- 
 quanga precinct, San Diego County. One witness, William Eeed. testi- 
 fied that they had not lived in the precinct thirty days before the elec- 
 tion. The evidence is very slight, but perhaps enough to shift the bur- 
 den upon the party claiming their votes. There is no other evidence in 
 the record, and the votes should be rejected. (Record, p. 115.) 
 
 James A. Keyes voted at Campo, San Diego County, for Mr. Wig- 
 ginton. He was born in Ireland, was fifty-three years of age, and 
 came to the United States in 1847. He testified that he had not, pre- 
 vious to the election, applied for any naturalization-papers, and had 
 never declared his intention to become a citizen until the day his depo- 
 sition was taken. He was not cross-examined, as neither contestant nor 
 his attorney was present at the taking of his deposition. (Record, p. 117.) 
 Keyes must have sworn that he had been naturalized in order to get 
 his name on the great register. But, in the absence of any evidence 
 contradicting his deposition in the record, his alien character is estab- 
 lished, and his vote must be rejected. 
 
 Thomas Scott Methvin voted at Pleasant Valley precinct, in Ventura 
 County. An effort was made to prove that he was a non-resident of 
 the State and precinct, and that he voted for Mr. Wigginton. The 
 voter was challenged, on the ground of non-residence, and he swore his 
 vote in. 
 
 The legal status of this voter is in considerable doubt. It is not con- 
 clusively proven that he was a non-resident, nor is it certain that he 
 voted for the contestant. The evidence is not sufficient to warrant us 
 in rejecting his vote. (Record, pp. 129, 130-132.) 
 
 John Peterson voted for contestant at Redwood City, San Mateo 
 County. He obtained his naturalization-papers from the twelfth district 
 court, at San Francisco, the day before the election. John Hanua tes- 
 tified at the court that he knew Peterson in California in 1858, and at 
 that time Peterson was a minor. Upon this evidence the court granted 
 the papers. Peterson's evidence was taken in the contest to show that 
 when he was in California he remained only a few weeks, and returned 
 to Denmark, and that he did not come to this country to reside until 
 1868. This would make him of age when he came the second time, as 
 he was born in 1841. Upon this evidence (Record, pp. 144-146) the 
 contestee asks us to reject Peterson's vote on the ground that his nat- 
 uralization-papers were fraudulently procured. His papers were issued 
 by a court of competent jurisdiction, were regular in every respect, and 
 upon the evidence before the court at the time, the court decided rightly. 
 Your committee are of the opinion that papers issued in this manner 
 cannot be attacked in a collateral proceeding. And if this could be 
 done, Peterson's oath would have little weight in such a contest, for he
 
 WIGGINTON VS. PACHECO. 17 
 
 either swore falsely before the court or in the contest. He was cor- 
 roborated in his testimony before the court, but his evidence in the con- 
 test denying his citizenship stands unsupported. 
 
 Thomas O'Mara voted in the city of Los Angeles. The contestee 
 claims that he falsely personated another person of the same name. He 
 was challenged on the ground that he was not the person whose name 
 was on the great register, but he swore that he was, and his vote was 
 received. The evidence barely raises a doubt upon this point, and is 
 not sufficient to establish the illegality of the vote. The evidence also 
 fails to show for whom he voted. (Record, p. 149.) 
 
 Gustave C. Ferret voted at the fourth precinct of Los Angeles City. 
 His vote was challenged on the ground that he was not a citizen of the 
 United States, and that he was not enrolled upon the great register of 
 Los Angeles County. He presented a certificate of registration, and his 
 vote was received by the board of election. There is some doubt as to 
 whether this voter had been naturalized, but it is not shown for whom 
 he voted. The only evidence as to the candidate for whom he voted is 
 that he got a ticket from a Democrat, but the witness did not know 
 whether the elector voted that ticket or not. (Record, pp. 159, 160, 161.) 
 
 William A. Brophy voted for contestant in the city of Los Angeles. 
 His residence was in Soledad Township. His vote must be rejected. 
 (Record, p. 159.) 
 
 Francis Tamiet voted in the city of Los Angeles. There is some doubt 
 as to his being a citizen, but there is no evidence that he voted for the 
 contestant. (Record, pp. 155, 156, 161.) 
 
 At La Graciosa precinct, in Santa Barbara County, two ballots were 
 voted upon which Mr. Wigginton's name was printed and Mr. Pacheco's 
 written, and the printed name was not erased. Under section 1203 of 
 the statutes of California both these ballots should have been counted 
 for Mr. Pacheco, but it seems that only one of them was. He is 
 therefore entitled to one vote more and Mr. Wigginton one less in this 
 precinct. 
 
 Pablo Rios voted at Wilmington, Los Angeles County. He arrived 
 at the polls late in the day, and fearing they would soon be closed, 
 took the first ticket he could find. It was a Democratic ticket, but he 
 did not desire to vote for any person on that ticket except for George 
 Hinds for supervisor of the county. He erased all other names on the 
 ticket, and wrote Mr. Pacheco's name on the top at the right-hand side, 
 opposite the names of the Presidential electors, which were erased. The 
 judges returned this ballot as a vote cast for R. Pacheco for Presidential 
 elector, and did not count it for him for Representative in Congress. 
 Rios was called, and testified that he intended to vote for Pacheco for 
 Representative in Congress. The evidence is that the names on the 
 ballot, except that of Hinds, were erased, but there is no evidence that 
 the words ; 'for Presidential electors," or the words "for Representative 
 in Congress," were erased. Upon the face of the ballot, according to 
 the evidence, Mr. Pacheco was voted for for Presidential elector. There 
 is no ambiguity about this. The law of California, in reference to 
 counting obscure ballots, is as follows: 
 
 SEC. 1201. No ballot or part thereof must be rejected by reason of any obscurity 
 therein in relation to the name of the person voted for, or the designation of the office, 
 if the board, from an inspection of the ballot, can determine the person voted for and the 
 office intended. 
 
 An inspection of this ballot would show that the name of R. Pacheco 
 
 H. Mis. 58 2
 
 18 DIGEST OF ELECTION CASES. 
 
 appeared after the words "for electors of President and Vice-Presidents 
 of the United States." Can such a ballot be counted for the coutestee 
 for Representative in Congress, or is it admissible for the voter to ex- 
 plain or contradict such ballot by final evidence after it has been cast! 
 Mr. McCrary, in his work on elections (section 407), states the rule 
 which should govern in cases of this kind as follows : 
 
 While it is true that evidence aliundeiiifiy be received to explain an imperfect or am- 
 biguous ballot, it does not by any means follow that s'uch evidence may be received to 
 give a ballot a meaning or effect hostile to what it expresses on its face. The intention 
 of the voter cannot be proven to contradict the ballot, or when it is opposed to the 
 paper ballot which he has deposited in the ballot-box. (See, also, People vs. Seaman,' 
 5 Denio, 409; State rs. Goldthwait, 16 Wise, 552; People vs. Fegursou, 8 Co wen, 102; 
 People vs. Cook, 14 Barbour, 259.) 
 
 When a ballot clearly designates the office to be filled and the name 
 of the person voted for, no court has ever permitted the voter to contra- 
 dict his ballot, by evidence that he intended to vote for a different per- 
 son, or for the same person for a different office. 
 
 Your committee do not feel at liberty to depart from the unbroken, 
 line of precedents in cases of this kind, although it is conceded in this 
 case that the rule works a hardship to the voter. It is sometimes neces- 
 sary to sacrifice the merits of a case in order to maintain an inflexible 
 legal rule. This ballot seems to present such a contingency. 
 
 Some irregularities occurred in reference to the vote of Temecula 
 precinct, San Diego County. This precinct gave a majority of 9 votes 
 for contestant. But for the reasons stated in reference to Saticoy pre- 
 cinct, we are of the opinion that the precinct would be counted as re- 
 turned. Neither precinct should be excluded. 
 
 From the foregoing, it will be seen that the contestant's vote, as re- 
 turned, was 19,103. From this must be subtracted 1 vote in La Gra- 
 ciosa precinct, where contestee's name was printed on the ballot, but 
 not erased, and contestee's name was written under it; and also the 
 votes of John Doran, Joseph Marks, John Geddins, James A. Keyes r 
 and W. A. Brophy ; in all, six votes. 
 
 From the foregoing it will appear that Mr. Wiggintoii received, ac- 
 cording to the returns, 19,103. From this we must deduct the vote il- 
 legally counted for him and the five votes illegally cast for him, which 
 would make his legal vote 19,097. 
 
 Mr. Pacheco received, according to the returns, 19,104. To this must 
 be added one vote in La Graciosa precinct, which would increase his 
 vote to 19,105. From this must be deducted the 12 illegal votes cast 
 for him, which would make his legal vote 19,093. 
 
 CONCLUSION. 
 
 Your committee, therefore, find that Peter D. Wiggintou received for 
 Representative in Congress from the fourth district of California 19,097 
 votes, and that Komualdo Pacheco received 19,093 votes ; and that the 
 former, having received a majority of all the legal votes cast, is duly 
 elected. 
 
 Your committee recommend the adoption of the following resolu- 
 tions : 
 
 Resolved, That Romualdo Pacheco is not entitled to a seat in thi 
 House as a Representative in the Forty-fifth Congress from the fourth 
 Congressional district of California. 
 
 Resolved, That Peter D. Wiggintou is entitled to a seat in this House
 
 WIGGINTON VS. PACHECO. 19 
 
 as a Eepresentative in the Forty-fifth Congress from the fourth Con- 
 gressional district of California. 
 All of which is respectfully submitted. 
 
 JOHN T. HARRIS. 
 
 JAC. TURXEY. 
 
 JERK X. WILLIAMS. 
 
 THO'S R. COBB. 
 
 Excepting the conclusion of the majority of the committee as to the 
 vote of Charles Gilbert, I concur in this report. 
 
 MILTOX A. CAXDLER. 
 
 I concur in the report of the committee, except as to the vote of Mon- 
 terey County and as to Pratt and Methvin, and file a separate opinion 
 herein. 
 
 WILLIAM M. SPRINGER. 
 
 I agree with the conclusion of the majority, except with regard to the 
 cases of Scott and Waterman. In these cases I am of opinion that the 
 votes were legal, and should be counted for Pacheco. 
 
 E. JNO. ELLIS. 
 
 ADDENDA TO REPORT. 
 
 The undersigned agrees with the majority of the committee in their 
 report, except that part of it relating to the vote of Monterey County 
 and the votes of Pratt and Methviu. 
 
 In reference to the vote of Monterey County, it appears that the clerk 
 of the county, who was also clerk of the board of supervisors, whose 
 duty it was to canvass the votes cast, changed the result as found by 
 the board of canvassers, altered the record so as to make it correspond 
 with his own count, and so certified it to the secretary of state. 
 
 The board of canvassers, consisting of three persons, met at the proper 
 time and place and canvassed the votes cast, and found, and caused to 
 be entered of record, that Mr. Pacheco received 1,208 votes, and Mr. 
 Wigginton 988. The board then adjourned sine die. The clerk entered 
 this result upon the record as required by law. The next morning one 
 of the members of the board came into the clerk's office, and he and the 
 clerk concluded that the board had made an error in the count of San 
 Lorenzo precinct; that Mr. Wiggintou had credited to him 29 votes in 
 that precinct, but that they thought 27 votes were all he had really 
 received. Without notice to the other members of the board, the clerk 
 altered the record so as to make it appear that Mr. Wiggintou had 
 received only 27 votes in that precinct, and also changed the aggre- 
 gate vote of the county from 988 to 986. This altered record was pre- 
 sented by the clerk to the chairman of the board for his signature, and 
 it was signed by him ; but the clerk did not notify him that the change 
 had been made. If the clerk had been actuated in making the altera- 
 tion of the record by a desire to arrive at the truth, he certainly would 
 have informed the chairman and the other members of the board of the 
 alteration he had made; for, although slight, it actually changed the 
 result in the whole district and elected Mr. Pacheco by one majority, 
 instead of Mr. Wigginton by the same majority.* The change in the 
 
 Bell i-. Pike, 53 N. H. Keporte, 481.
 
 20 DIGEST OF ELECTION CASES. 
 
 record then became a matter of the most vital importance, and as one 
 week had elapsed from the day of the election to the time when the 
 change was made, it is presumable that the clerk was aware of the result 
 in the other counties of the district, and knew when he made the change 
 of the record that he had actually changed the result in the whole dis- 
 trict. Considering the exciting and important character of the election, 
 and the further fact that the political complexion of the National House 
 of Kepresentatives was exceedingly close and at that time not definitely 
 known, and considering further that the change was made without in- 
 forming the majority of the board of the fact, the conduct of the clerk 
 is open to grave suspicion. That his conduct was illegal there can be 
 no question; that it was fraudulent may reasonably be presumed, in 
 the absence of proof to the contrary. 
 
 On the 17th day of November the clerk's certified abstract of the 
 vote in Monterey County was filed in office of secretary of state. This 
 return showed that Mr. Wigginton had received 986 votes instead of 
 988, as actually found by the board of canvassers. 
 
 On the 8th day of December thereafter, an alternative writ of man- 
 date was issued out of the district court of the twelfth judicial district 
 of the.State of California, on the application of Peter D. Wiggiuton, 
 and directed to and served upon the county clerk of Monterey County, 
 requiring and commanding him to forthwith make and certify to the 
 secretary of state a true abstract of the vote for Representative in Con- 
 gress, as ascertained and declared to have been cast in said county of 
 Monterey by the board of supervisors of said coanty, and as was en- 
 tered in pursuance of law upon the records of said board of super- 
 visors by the clerk of said county, or to show cause on a certain day in 
 said writ named why the writ should not be made peremptory. In 
 obedience to said writ the county clerk did make and certify and for- 
 ward to the secretary of state on the 8th day of December a true ab- 
 stract of the vote of said county, as ascertained by the board of can- 
 vassers and entered of record by their direction. The clerk also certi- 
 fied that, after the record had thus been made up, it had been changed 
 so that it then showed that Mr. Wigginton had allotted to him in San 
 Lorenzo precinct 27 votes instead of 29, as found and entered of record 
 by the board of canvassers. This second return was filed in the office 
 of the secretary of state on the llth of December. 
 
 On the 3d day of January, 1877, Mr. Pacheco filed in the supreme 
 court of the State of California a petition for a writ of mandate against 
 the secretary of state, praying that he be required and commanded to 
 certify to the governor the votes given for Representatives in Congress 
 from the fourth Congressional district, and to accept and use, as the 
 returns from Monterey County, the abstract of votes which was first 
 certified to him by the clerk of Monterey County, and filed in his office 
 on the 17th day of November. This petition set forth all the facts, in- 
 cluding the two returns above mentioned. 
 
 The respondent demurred. The demurrer was overruled, with leave 
 to the respondent to answer. The respondent answered fully, and the 
 case was heard upon petition and answer at the last April term of the 
 supreme court of California. The court consists of five members, three 
 of whom, Chief Justice Wallace, and Justices Niles and Rhodes, held 
 that a peremptory writ of mandamus should issue, in accordance with 
 the prayer of the petition. The other two members of the court, Jus- 
 tices McKinstry and Crockett, dissented, and filed separate opinions. 
 
 Mr. Justice Rhodes, in delivering the opinion of the court, said: 
 
 The law does not vest him [the secretary of state] with authority to inquire whether 
 the hoard of supervisors correctly canvassed the returns from the several precincts, or
 
 WIGGINTON VS. PACHECO. 21 
 
 whether the record correctly states the result of the canvass, as made or declared, or 
 whether the record was properly made up. nor to investigate any qiiestiou relating to 
 the proceedings which were had prior to the making of the certified abstract. That 
 document, being in the form prescribed by law, is the only one upon which he is re- 
 quired or authorized to act in his official capacity in estimating the vote of the dis- 
 trict : and neither his power nor duty in that regard is enlarged or changed by reason 
 of the fact that there are in his office other papers or certificates for which no pro- 
 vision is made by the election law.-. 
 
 It is his duty, in comparing and estimating the votes, as provided for by* section 
 lo-Jti of the Political Code, To compare and estimate the votes' contained in the certified 
 abstract, dated the 17th day of November, 1876, marked Exhibit A. 
 
 Chief Justice Wallace, in bis separate opinion, sustaining the conclu- 
 sion of the majority of the court, said : 
 
 The so-called certificate of December 8, being extra-official, has, therefore, no sanc- 
 tity: its value is precisely that of the certificate or written statement of any other 
 lespei-table i^rii t leimui . who, professing to be personally cognizant of what had trans- 
 pired when the canvass was made by the board, might have addressed a letter to the 
 iseeretary of state, assuming to detail events as he remembered them to have happened. 
 
 Upon this view there can be no question made before the secretary, nor before us, as 
 to what in this caM- constitutes the record of the board of supervisors, remaining in 
 the hands of its clerk. The argument which denies to the clerk the power to alter or 
 amend the records in his possession becomes merely abstract, since (the certificate of 
 ii of December being out of the case) there is nothing to show that he, in point 
 of fact, assumed to do so. 
 
 Fpon i/uo tcarranto,or upon information in the nature of quo warranlo, upon a con- 
 test had. pursuant to the provisions of the statute of the State, or before the House of 
 Representatives of the United States, under its constitutional power to judge of the 
 election and qualifications of its members, this and kindred questions may be examined 
 and correctly determined, for there would be jurisdiction to entertain the inquiry, and, 
 what is of much importance in ascertaining the fact, the power to summon witnesses 
 and enforce the production of testimony, upen notice given to the parties in interest, 
 who might appear in person and by counsel. 
 
 The chief justice was, therefore, of the opinion that the only return 
 from the county of Monterey rightfully before the secretary of state 
 was the certified abstract of ^November 15, which was filed on the 17th 
 of that month, and that the secretary must count the votes for Repre- 
 senatatives in Congress only as they appear by that abstract. 
 
 Mr. Justice Crockett, dissenting, said: 
 
 In such a case, the answer to an application for a mandamus would be that the writ 
 is intended to prevent a failure of justice, and cannot be used to perpetuate a wroag, 
 or to compel the performance of act the result of which would contravene public policy 
 or violate good morals. In this State the policy of the law, as expressed in the stat- 
 ute, is to confide to the board of supervisors the exclusive authority to canvass the 
 election-returns of a county and to declare the result, and its action in the premises, 
 when in due form and free from fraud, is absolutely conclusive on all persons whom- 
 soever, except in the case of a contested election. We are asked in this case to compel 
 the secretary of state, by a peremptory writ, to estimate and count the vote in accord- 
 \vith a certificate of the clerk, which, as appears on the face of the petition, 
 states a result not only not declared by the board, but essentially different from that 
 which was declared, and which was duly transcribed into the record. To award the 
 writ under these circumstances would be to contravene the plain policy of the law, 
 which contido t'> tin- Ixr.ird the exclusive authority t<> declare the renult of an election, 
 and which has not intrusted to the clerk any supervisory power over the board in cor- 
 recting its mistak- s or otherwise. Nor is it material to inquire whether the board in 
 tact committed the mistake imputed to it, and whether the record, as changed by the 
 clerk, states the true result of the election. 
 
 Having no authority to declare the result or to correct any mistakes of the board, 
 the attempt of the clerk to do so was simply a nullity ; and to award the writas prayed 
 for would be virtually to decide ihat the result, as declared by the clerk, was valid and 
 obligatory, notwithstanding the statute explicitly provides that the authority to can- 
 he returns and declare the result is con tided exclusively to the board. If a prac- 
 tice of that kind were tolerated it would 'necessarily involve an inquiry whether the 
 result as declared by the board, or that declared by the clerk, was the true result of 
 the election : and that, too, though it is conceded on all sides that the clerk has no 
 authority in the premises. In determining whether the writ ought to issue it is our 
 duty to uphold the plain policy of the law. which provides that the result, as declared
 
 22 DIGEST OF ELECTION CASES. 
 
 by the board, shall be absolutely conclusive, except in the case of a contested election* 
 To issue the writ as prayed for would be to contravene this policy by compelling the 
 secretary of state to accept and act upon a certificate of the clerk which does not state 
 the result as declared by the board, but a different result declared by the clerk. For 
 these reasons I am of opinion that the writ should be denied. 
 
 Mr. Justice McKinstry, in his dissenting opinion, said : 
 
 As thye case is now presented, it must be assumed that the averments of the an 
 ewer are true. What, then, is the record? 
 
 ; It would seem the answer must be that it consists of the original entries in the min 
 Tite-book, that which stood there when the task of entering the statement, which the 
 statute requires the clerk to enter "as soon as the result is declared," was completed. 
 
 It would perhaps be difficult in some cases to determine when the record was com- 
 pleted. Having written a statement, the clerk would be competent at the same sit- 
 ting, and probably within a reasonable time after ward, to correct an error or to amend 
 an imperfect statement, so as to make itaccord with the actual declaration of the 
 board, and a court would not seize upon a merely temporary suspension from hi* labor 
 and hold such to be a final cessation. Perhaps no definite period of time could be fixed 
 which would of itself establish that the work was finished, but all changes must be 
 made by the clerk while his clerical task of entering the declaration of the board 
 is in fieri. 
 
 I cannot believe that when his task of entering the declaration of the board had been 
 finished, and after a lapse of time, however inconsiderable, the clerk can initiate an 
 independent inquiry, not in respect to what the supervisors declared when they can- 
 vassed the vote, but avowedly in respect to what they ought to hare declared, and then 
 alter the minutes which contain the real declaration, so that they shall accord with 
 his own notions of a correct declaration of the vote. After such alterations the writ- 
 ing would not constitute a record of the proceedings of the board, but of the judgment 
 of the clerk. The clerk has no potcer to transmit to the secretary any other paper than 
 a copy of the proceedings of the board. The statute does not 'make the clerk a can- 
 vasser. He is the mere scribe, whose office is performed when he makes record of the 
 determination of the board and transmits a copy of such record to the secrctai y of 
 state. If the allegations of the answer are correct, the clerk did not confine himself 
 to his proper duties, but assumed to discharge those imposed by la\v upon the board 
 of supervisors, and that, too, after they had performed those duties, thus arrogating 
 the power to reverse the decision of the proper canvassing-officers. 
 
 It will be seen that the decision of the majority of the court, while it 
 directs the secretary of state, a mere ministerial officer without judicial 
 discretion, to count only the first return, yet the opinion expressly recog- 
 nizes the right and duty of the House of Bepresentatives, under its con- 
 stitutional power to judge of the election, returns, and qualifications of 
 its own members, to examine and correctly determine this and kindred 
 questions. Hence the House is not embarrassed in the least by the 
 decision of the supreme court of California in this case. 
 
 But since the decision of the supreme court may be cited to sustain 
 the validity of the first return made by the clerk of Monterey County, 
 in the absence of other evidence than that contained in the records of 
 the courts in the mandamus cases, the undersigned respectfully submit 
 that the opinions of the dissenting justices correctly set forth the rule 
 of law which should govern in the premises. And this view is strength- 
 ened by a recent decision of the supreme court of the State of Missouri 
 in a similar case.* The'Missouri court unanimously held, in the appli- 
 cation, for mandamus of the sitting member of this House from the 
 third district of that State (Mr. Metcalte), that it is the duty of the court, 
 in proceedings for mandamus, to determine for the canvassing officer 
 what the true return is; and having ascertained what was the true 
 return, the court would command the ministerial officer to count the vote 
 accordingly. There were two returns before the secretary of state of 
 California from the county of Monterey. Both these returns were 
 signed by the same clerk, under the same seal of office. The first return 
 
 *The State, ex r>l. M'-n altV lie ct <il.. reported in Saint Louis Republican 
 
 of October 31, 1877.
 
 WIGGFNTON VS. PACHECO. 23 
 
 was forwarded by the clerk of his own volition; the other in response 
 to an alternative writ of mandamus issuing out of a court of compe- 
 tent jurisdiction. Applying the rule laid down by the Missouri supreme 
 court it would have been the duty of the California court to determine 
 which of the two returns truly set forth the result of the vote as ascer- 
 tained by the board of supervisors of Monterey County. There could 
 have been but one opinion as to what the result was, as ascertained and 
 declared by the board of canvassers. The board was alone authorized 
 by law to canvass the votes, and the clerk had no part of this duty to 
 perform, except to record the result as ascertained by the board. (See 
 Bell r.s-. Pike, 53 N. H. Reps.. 473: Hill vs. Goodwin, 56 N. H. Reps., 
 441.) 
 
 The case of Hill rs. Goodwin is an important one, and the opinion 
 therein fully sustains the position of the undersigned in this case. It was 
 urged by counsel for Mr. Pacheco in the argument before the committee 
 that the record of the proceedings in the mandamus cases could not be used 
 as evidence in the contested-election case between the contestant and the 
 sitting member. It is true that such records cannot be used to prove or 
 to discredit any material fact in the present issue. But they^inay be 
 used to show that either of the parties made admissions or swore to 
 statements, in such proceedings, which preclude them in this contest. 
 Mr. Pacheco, in his application for a writ of mandate, set forth, as a 
 part of his petition, an affidavit of the clerk of Monterey County, in 
 order that all the facts in the case might come before the court. This 
 affidavit explains fully the manner in which the vote of the county was 
 canvassed, and the change which the clerk afterward made. After the 
 canvass wasuompleted the board adjourned sine die. The affidavit then 
 proceeds to state what subsequently occurred, as follows : 
 
 At the. time the lioaitl adjourned, as aforesaid, the vote stood on the tabulated state- 
 ment kept by the said clerk at San Lorenzo precinct, P. D.Wigginton, 29, and forthe said 
 P. D. Wigginton in the county. 1HS ; that about one hour after the adjournment of 
 said board, and before the pencil-minutes and tabulated statement kept by the clerk 
 had been transcribed to the minutes of said board, Mr. St. John, a member of said 
 board, returned to the oth'ce and stated to me that he thought a mistake had been 
 made in the vote for Congressman : that Mr. Scott and Mr. Carter ouly had 986 votes 
 for Mr. Wigginton. We looked over the figures which I had made and found that 
 they had been added correctly. I then gave, to Mr. St. John a copy of niy figures of 
 the vote for Congressman, and suggested to him that he compare the same with the 
 tigu'vs of the vote as the same had been keep by Mr. Scott, and said that he would in 
 that way find out where or in which precinct the difference was, and if there was a 
 mistake we would correct it in the morning. 
 
 After supper that night I wrote up the minutes and transcribed the statement made 
 in pencil to the minute-book. On the morning of November 14, Mr. J.W.Leigh and my- 
 self were in the clerk's office, Mr. St. John came in and stated to me that the difference 
 in the figures was in San Loren/o precinct. I got the tally-list from San Lorenzo 
 precinct and Mr. St. John, Mr. Leigh, and myself examined the same. We found that 
 Mr. Wigginton had ouly received -J? votes, whereas the tabulated statement and the 
 minutes, as they stood then, had allotted to Mr. Wigginton '29 votes in said precinct. 
 The tally-list was in all respects regular. The 27 was in marks in figures twice and 
 written twice. 
 
 We all three felt fully convinced that Mr. Wigginton had received in the precinct 
 only '^7 votes, and the clerk had made a mistake in [tutting down 29. I then and there 
 changed the vote as entered on the minutes fora 29 to 27, and the total vote from 988 
 to 9^0, and thereafter and on the same day the chairman of said board signed the min- 
 utes. 
 
 This statement is not merely the affidavit of the clerk. It is embod- 
 ied iu the petition of Mr. Pacheco, signed by him, and verified by his 
 own oath. Hence, so far as this contest is concerned, we may assume 
 the truth of the facts above stated. These facts show that the result as 
 certified by the clerk was not the result ascertained and declared by
 
 24 DIGEST OF ELECTION CASES. 
 
 the board of canvassers. The persons named in the above statement, 
 Messrs. Scott, Carter, and Leigh, were not members of the board of 
 canvassers, and the canvass made by the clerk and Mr. St. John was 
 without the semblance of law, and proves only the fraudulent conduct 
 of the clerk in the premises. The statement of the clerk that " we all 
 three felt fullv convinced that Mr. Wiggiutou had received only -7 
 votes" in San Lorenzo precinct does not avail anything. The canvass- 
 ing-board had, under their official oaths, ascertained the result to be 
 otherwise. And the majority ofjthe board, Messrs. Gordon and Blanken- 
 ship, afterwards made oath that the alteration by the clerk was made 
 wihhout authority of law or knowledge of the board, and after the 
 board had adjourned ; that the board had ascertained, in truth and in 
 fact, that Mr. Wigginton had received 29 votes in said precinct instead 
 of 27, and so declared, and that the returns made by the clerk were 
 false and untrue. The affidavits of Gordon and Blankenship are not 
 cited to prove the truth of their canvass. The result ascertained by 
 the board imports absolute verity, and cannot be impeached except by 
 evidence taken in a contest under the statute. 
 
 The undersigned is therefore of the opinion that in Monterey County 
 the contestant is entitled to have counted for him 988 votes, as ascer- 
 tained and declared by the board of canvassers of said county. 
 
 In reference to the votes of Pratt and Methvin, the undersigned is of 
 the opinion that the former was a non-resident of the precinct, and that 
 he voted for the contestee, and that Methvin was a non-resident of the 
 State, and that he voted for the contestant. But as these voters would 
 not change the result it is not necessary that their cases should be fur- 
 ther considered. 
 
 WILLIAM M. SPRINGER. 
 
 Mr. WAIT, from the Committee of Elections, submitted the following 
 
 as the 
 
 VIEWS OF THE MINORITY. 
 
 The grounds upon which the contestant claims the seat in this case 
 being fully stated in the report of the majority, it is unnecessary to re- 
 peat them here. 
 
 And the majority having reported that the vote as certified to the 
 secretary of state from Monterey County shall in this case be counted 
 as certified, viz, for Pacheco, 1,208, and for Wigginton, 986, we fully 
 concur with the majority in that regard, and will not, therefore, further 
 notice that branch of the case. 
 
 All that is left for consideration is as to the matter of illegal votes 
 cast for these parties respectively, and in order that the House may 
 have the case, as it now stands, conveniently before it, we state that by 
 the returns of the election the vote of the district stands as follows : 
 
 For Pacheco 19, 104 
 
 For Wigginton 19, 103 
 
 Majority for Pacheco 1 
 
 The majority of the committee report that the following-named persons 
 voted illegally for Pacheco: F. W. Hoffman, F. W. Kelly, Pedro Paris, 
 I. Dieos Ortegas, Charles Waterman, Moses Atkinson, T. B. Lanhardt,
 
 WIGGINTON VS. PACHECO. 25 
 
 Jaines Quails, Juan Paris, Pedro Ortegas, Charles Gilbert, I. C. Scott, 
 and consequently that this number of votes shall be deducted from 
 Pacheco's vote above stated. We cannot concur with the majority so far 
 as the following are concerned, viz: Charles Wattermau, Moses Atkin- 
 son, Charles Gilbert. I. C. Scott. 
 
 These four, who are by the majority decided to be illegal voters, we 
 insist are not shown to have been such, and, therefore, their votes should 
 not now be rejected. We therefore proceed to present the facts as to 
 each. 
 
 CHARLES WATTEKMAN. 
 
 The evidence touching this voter is as follows (page 33): 
 
 EGBERT S. JENKINS, being called as a witness for contestant, was 
 sworn, and testified as follows: 
 
 Direct examination: 
 
 Question. What is your name. age. and place of residence T Answer. Robert 8. Jen- 
 kins ; rifty-seven years ; Mayneld, Santa Clara County. 
 
 Q. How long have yon resided in Mayfieldf A. Five or six years. 
 
 Q. Do you know a man by the name of Charles Watterman who formerly resided in 
 or near May field! A. Id>. 
 
 Q. Did lie vote at the election in Maytield on the 7th day of November, 1876? A. 
 He did. 
 
 Q. How do you know ? A. I was present at the time that he voted. I challenged 
 him, on the ground that he was a non-resident of the county. 
 
 Q. State anything you may know pertinent to the inquiry as to Charles Watterman's 
 residence at the time of said election, and for the twelve months next preceding. A. 
 He had resided here for a number of years ; had left this place, sold his interest here, 
 and went to Oregon. He came here the morning of the election, after being absent, as 
 nigh as I can remember, six or eight months. He came to the polls and was challenged 
 by me. He swore his vote in, and left that same day on the train. He has been here 
 twice >iiu-e. 
 
 Q. Do you know where he was living on the 7th day of November, and, if so, how 
 long had he been living there T A. From conversation with him he had been to Ore- 
 gon and other places, and came back here to vote. 
 
 Q. Do you know whether he voted for Congressman at that election; if so, for 
 whom t A. He took the Republican ticket and voted it entire. I can't say whether 
 he altered it or not. 
 
 Q. Did you ever hear him say which ticket he voted that day, and whether he voted 
 for Wigginton or Pacheco ? A. He told me in conversation that he voted the Repub- 
 lican ticket. 
 
 Q. Did you on that dav see the Republican tickets that were being used for voters? 
 A. I did. 
 
 Q. Whose name was on that ticket for Congressman ? A. Roinualdo Pacheco. 
 
 Q. Whose name was on the Democratic ticket for Congressman ? A. P. D. Wig- 
 giuton. 
 
 Cross-examination : 
 
 Q. What is your business ? A. I am a saloon keeper in Maytield. 
 
 Q. For how long a time have you been so? A. Two or three years. 
 
 Q. What are your politics, and how did you vote at the election on the 7th of No- 
 vember last ? A. Voted the full Democratic ticket, including Wiggintou for Congress. 
 
 Q. How long have you known Charles Watterman f A. Five or six years certainly; 
 may be longer. 
 
 Q. Was he a single man ? A. Yes. 
 
 Q. When you speak of his selling his interest here, what do you mean ? A. He sold 
 his interest in the hotel business : said the people of Mayneld might go to thunder. 
 He wanted nothing more to do with them, and left here. That is as near as I can re- 
 member. 
 
 Q. Was he on the great register when he left? A. He was. 
 
 Q. Do you know when- he went, and in what business engaged? A. He took aeon- 
 tract to go with a circus, and did go through this State and in Oregon, as he told me. 
 
 Q. Did he come back to .Maytield f A. No, sir; he never came back until the day 
 of election. 
 
 Q. Will you swear that Charles Wattermau was not in Mayfield two or three months 
 before the election, and that he was not here one whole week immediately preceding.
 
 26 DIGEST OF ELECTION CASES. 
 
 the election f A. To tlie best of uiy knowledge, he was not here until the day of elec- 
 tion. 
 
 Q. Do you know what his post-office address was during his absence ? A. I do not. 
 
 Q. Was his name, at any time after leaving Mayfield, canceled on the great regis- 
 ter? A. Not that I know of. 
 
 Q. Do you know of his having voted, or of his having his name on the great regis- 
 ter of any other county than this one ? A. I knew of it one year before. His name 
 was on the great register in San Mateo County. He was transferred to the register 
 of this county the year before, when he received the Republican nomination for road- 
 master, and told me he had always voted in San Mateo County, and only because he 
 was nominated, and five or six months afterward entered into the hotel business at 
 Mayfield. 
 
 Q. Do you know whether, after selling out the interest in the hotel, he had any 
 permanent residence other than Mayfield ? A. I don't know ; he said he left this town 
 for good. 
 
 Q. Do you swear that that is the exact language he used ? A. As near as I can re- 
 member. 
 
 Q. Who was present when this conversation took place ? A. Can't say who. 
 
 Q. Will you say that any one was present ? A. Yes, sir ; a number were present. 
 
 Q. And you can't remember the name of any one ? A. No. 
 
 Q. Did you make any note or memorandum of it ? A. Not at that time. 
 
 Q. Did you at any time ? A. I did within three or four weeks ago. 
 
 Q. Was that in contemplation of this contest ? A. No, sir. 
 
 Q. Have you any ill-feeling or prejudice against Mr. Watterman? A. No, sir; I 
 threatened to have' him arrested for false voting. 
 
 Q. How long was it before the election that the conversation above related, as to 
 his leaving, took place ? A. It must be more than four or five months before the elec- 
 tion. I believe he left here in January, and never returned until day of election, as 
 far as I know. 
 
 Q. When was your memory refreshed in regard to this conversation f A. On elec- 
 tion day particularly. 
 
 Q. Have you spoken much about it to others? A. Nothing more than to others 
 when I said the election had been carried by fraud, by importing five or six men. 
 
 Q. Did you challenge his vote on election-day ? A. I did. 
 
 Q. Was he sworn to answer questions? A. He was sworn. 
 
 Q. Was he asked the question as to where his residence was at that time? A. I 
 think he was, but don't remember. 
 
 Q. If you don't remember these important facts, how do you remember so minutely 
 the conversation with Watterman as to his leaving, which took place some ten months 
 before the election? A. The way I remember it so particularly is this : they, the peo- 
 ple, told me that if I challenged him I would get a thrashing j as he was a very mus- 
 cular, smart man. I said it didn't matter what or who he is, I will challenge him and 
 be prepared for him. I challenged his vote ; he turned to me and asked if [ challenged 
 him; I said yes; he turned and swore his vote in, and it was received by decision of 
 a majority of the judges; whether they all voted for it I don't know. 
 
 Q. Was the challenge submitted to the board of election ? A. It was. 
 
 Q. Was it voted upon by them? A. It was; and they received the vote. 
 
 [Respondent here moves to strike out all that portion of the above and foregoing 
 testimony relative to the residence of Charles Watterman, upon the ground that when 
 his vote was opened the same was challenged on the ground of his being a non-resi- 
 dent; that said Watterman was sworn to answer questions concerning his residence; 
 the said challenge was submitted to the board of election, voted upon by them, the 
 challenge denied, and vote of said Watterman received; that the action of said board 
 in determining the right of said Wattermau to vote, and his residence, was final and 
 conclusive; and that the question of his residence cannot now be inquired into, the 
 challenge not having been upon any other grounds.] 
 
 Q. \Vill you swear that when Watterman voted he voted forPacheco for Congress- 
 man, and that that name was not scratched? A. I can't swear to that. 
 
 Q. Will you swear that he did not vote for Wiggiuton for Congress ? A. I won't 
 swear that he did or did not. 
 
 CHARLES DUCKER, witness (p. 39): 
 
 Question. How long have you lived in Santa Clara County, at Mayfield? Answer. 
 About seven years. 
 
 Q. Do you know a person named Charles Watterman, formerly a resident of May- 
 field? A. Yes, sir. 
 
 Q. Where were you on the 7th day of November. 1876, during the general election 
 on that day? A. I was here ju Mayfield. 
 
 Q. Did Charles Watterman vote at that election, and where? A. Yes, sir; in 
 Mayfield.
 
 WIGGINTON VS. PACHECO. 27 
 
 Q. How do you kuow the fact of bis votiug f A. I saw him put in the ballot. 
 
 Q. State anything that you know relative to the place of residence of Wattermau 
 at the time of that election, and fora year before. A. I couldn't state much about his 
 residence the year before. He was living in Mayfield until some time in the spring 
 of the year 1876. Somewhere in March or April he told me he was going to San 
 Francisco. He was up here at that time buying some harnesses and horses to start 
 out with Montgomery Queen's circus. That is the last I see of him in Mayfield until 
 the day of election. 
 
 Q. Were you living in Mayneld during the whole of the intervening time * A. 
 Yes, sir. 
 
 Q. How long did Wattennau stay here after the day of election ? 
 1'opoudent objects to the question a> irrelevant and immaterial.) 
 
 A. He went away the day of election. 
 
 Q. Do you know* where he went ? A. I do not. He went on the afternoon train 
 north. 
 
 Q. Do you kuow where he was living on the ?th day of last November ; if so, how 
 long had he been living there ? A. He was here on that day. 
 
 Q. Did you have any conversation with him as to where he lived ? A. No, sir. 
 
 Q. Do you know whether he voted for Congressman at that election ; if so, for 
 whom ? A. I do not. I didn't see his ticket. They said he voted for the Republican 
 ticket and Pacheco for Congressman. 
 
 (Respondent moves to strike out the latter part of the last and foregoing answer as 
 tearsay.) 
 
 Q. Do you know whether he took the Republican or Democratic ticket to the polls T 
 A. I do not. 
 
 Q. Did you ever have any conversation with him about whom he voted for? A. 
 No. sir. 
 
 Q. Do you know whether Mr. Wattermau sold out when he left here in March or 
 April. l-?(i .' A. I do not. 
 
 Q. Did he ever tell you he sold out ? A. He did not. I didn't know he had any 
 interest here. 
 
 On cross-examination, (p. 41.) 
 
 Q. What is your business? A. Saloon and grocery-store in Mayfield. 
 
 <. t >. How long have you been engaged in that business? A. Seven years in Mayfield. 
 
 Q. Was Charles Watterman a single man ? A. To the best of knowledge he is. 
 
 Q. How long have you known him around Mayfield? A. As long as I have been 
 : six or seven years. 
 
 Q. Do you kuow of his voting in Mayneld before the last election? A. Yes; he 
 voted here before this last election. 
 
 Q. Do you know of his having voted in any other place than Mayfield since you 
 noxvn him? A. I do not. 
 
 Q. What has been his business since you have known him ? A. The first I knew of 
 him he kept a livery-stable. He kept teams: hired out teams. One time he kept a 
 hotel. After that I do not know that he ever did anything in Mayfield. He was 
 here. 
 
 Q. Did he travel about with Montgomery Queen's circus? A. So I understood. He 
 told me himself that he was going; he was going to drive a wagon; that he was a 
 ;. -master. 
 
 Q. Do you know whether he had his owa team* with him ? A. I do not. 
 
 Q. Do yon kuow. after his leaving Mayfield, in March or April, of his having voted 
 anywhere else? A. I do not. 
 
 Q. Will you swear that Watterman voted for Pacheco for Congressman? A. No, 
 sir; I could not swear. 
 
 V- Will you swear that he did not vote for Wiggiutou ? A. No, sir; I could not 
 swear. He might vote a blank for all I know. 
 
 Q. Do you know of Watterman having taken up his residence, after ke left May- 
 field, in any other place ? A. He claimed Mayfield to be his residence. 
 
 J. L. McKiBBEN, called as a witness by contestant, being sworn, tes- 
 tifies as follows : 
 
 By Mr. M ALONE : 
 
 Question. What is your name, age. and present place of residence? Answer. J. L. 
 McKibben; age. 4<> ; reside in Mayneld. 
 
 Q. Where were yon living on the 7th of November last, and what position did you 
 hold in connection with the general election held on that day? A Lived at Mayfield 
 precinct. Was one of the judges of election for that precinct. 
 
 Q. How long have you resided iu Maytield ' A. I believe about nine years. 
 
 Q. Do you know Charles Watterman *? A. Y^.s. sir.
 
 28 DIGEST OF ELECTION CASES. 
 
 Q. Were you present and acting as one of the judges in Mayfield precinct during 
 the whole of the day of the 7th of November last ? A. I was. 
 
 Q. Did Charles Watteroian vote on that day ? A. Yes ; to the best of iny recollec- 
 tion. 
 
 Q. Where was he residing at that time and prior thereto? A. That is a question I 
 could not answer. He used to live in Mayfield : knew him here ior a number of years; 
 about town all the time, three, four, or rive years, maybe longer. Has not been here 
 all the time ; he had not been here continuously for a year before the election ; don't 
 know where he had been. 
 
 Q. Was his vote challenged on that day ; if so, by whom and on what ground ? A. 
 To the best of my knowledge his vote was challenged. I don't know by whom, there 
 were so many challenged. I can't say positive what the ground of the challenge was, 
 but to the best of my knowledge it was that he had not been a resident of the pre- 
 cinct for thirty days. The challenge was denied. 
 
 Q. Can you say if at any time during the year preceding the election, November 7, 
 1876, Charles Watterman gave up his residence in Mayfield ? A. No, sir ; I cannot. 
 
 Q. When Atkinson and Watterniau were sworn at the time they were challenged^ 
 did they swear that they were residents of Mayfield f A. I think they did, or they 
 would not have been allowed to vote; they might have claimed this as their resi- 
 dence. 
 
 Q. How did you vote on those two challenges ? A. I do not recollect whether I 
 voted on those two or not. Two of the judges generally did the voting ; the inspector 
 and one of the judges. 
 
 Q. Did not you vote on all the challenges that were made ? A. I do not think I 
 did. 
 
 J. L. McKIBBEN. 
 
 A. L. LADD was duly sworn and examined by Jno. T. Malone, esq. t 
 for the contestant. 
 
 (Counsel for the respondent here interposes the same objection made to testimony 
 of Scott, Ducker, and McKibben.) 
 
 Question. What is your name, age, and place of residence, and how long have you 
 lived at your present pla ceof residence T Answer. My name is A. L. Ladd : age, about 
 36 years; reside in Mayfield, in Santa Clara County ; have lived here since 1863. 
 
 Q. Do you know Charles Watterman ? If so, how long have you known him ? A. 
 I have known him about six years. 
 
 Q. Do you know if he ever resided in Mayfield; and, if so, when did he leave May- 
 field, and for what place, if you know T A. Yes, sir ; he has. I am not positive, but 
 I think he left on the 15th of January, 1876. The reason I think he went away at 
 that time is that we were partners, and he sold out at that time ; he might have gone 
 away the next day. I do not know where he went. 
 
 Q. Do you know whether he ever came back to Mayfield to live before the 7th of 
 November, 1876 ? A. I did not see him. Not to live, unless you call coming to spend 
 the day coming to live. 
 
 Q. How long had you been partners? A. From about the 1st of October, 1875. 
 
 Cross-examination by Mr. WILSON : 
 
 Q. What is your business? A. At the present time I am waiting for business. 
 Have nothing to do. 
 
 Q. How long had you known Watterman in Mayfield ? A. I have known him four 
 years sure. 
 
 Q. Was he a single man ? A. Yes, sir. 
 
 Q. When he left Mayfield in January, 1876, did you hear him express any ill-feel- 
 ing toward the people of Mayfield ? A. I do not think I spoke to him after I bought 
 him out. 
 
 Q. When 'he left Mayfield, in January, 1876, did you hear him express any ill-feeling 
 toward the people of Mayfield ? A. No ; I did not. 
 
 Q. Would you have been likely to have heard him if he had so expressed himself? 
 A. I do not know that I would. 
 
 Q. Did you ever see him after the time he left in January in Mayfield before the 
 election? A. Yes, sir; next time I saw him he was with Queen's circus. He called 
 at the house and took a drink of soda. 
 
 Q. Did he go away with the. circus? A. Yes, sir; he started with it. 
 
 Q. Do you know whether he gave up his residence in Mayfield when he left in Jan 
 nary? A. No; I do nor. 
 
 Redirect examination by Mr. MALONE : 
 
 Q. Do you know whether he intended to come back to Mayrield when he leftf A. 
 I do not. 
 
 A. L. LADD.
 
 WIGGIXTON VS. PACHECO. 29 
 
 This is all of the evidence in regard to this voter, and we submit that 
 the conclusion of the majority ;is to him cannot properly be sustained. 
 He had resided at .Mayiield, where he had voted for several years. He 
 was a single- man, and there is not the slightest evidence that he ever 
 had any other residence. In the spring, before the election, he took em- 
 ployment to travel with a circus, and did travel with it during the sum- 
 mer. Came back to Maytield on the day of the election and voted. 
 His vote was challenged and the challenge was not sustained. There is 
 absolutely nothing to indicate any purpose on his part to change his 
 residence, other than the statement of a witness that he said he left this 
 town "for good" when he went with the circus in the spring. To per- 
 mit this loose kind of testimony, an attempted repetition of what a per- 
 son said eighteen mouths before, to have the effect to disfranchise a 
 voter, and perchance to determine the right to a seat in the House of 
 Representatives, will not do. Such a precedent or rule can ouly work 
 mischief. Such testimony is considered by courts and authors to be 
 the most unreliable and least worthy of consideration, aud for reasons 
 which are too familiar to need to be repeated here. Waterman, as before 
 stated, wjis challenged as a voter. He was sworn and interrogated 
 touching his right to vote. He knew where his residence was, what his 
 intentions were when he went away with that circus, and upon his 
 sworn statements, coupled with the fact that notoriously he had been a 
 resident there for years, his vote was received. Now, it is proposed by 
 the majority TO say that that was an illegal vote, with no other evidence 
 to warrant it than the statement of a witness, made eighteen months 
 after he professed to have heard it, that Waterman said about the time 
 he went away with the circus that he was going "for good." 
 
 If this man's vote can be held to be illegal, it will be the declaration 
 of a principle that will practically disfranchise hundreds of men who 
 temporarily leave their homes to follow pursuits requiring them to travel 
 from place to place. Such men habitually go home to vote, especially 
 at Presidential elections. They will travel hundreds of miles to exer- 
 cise that privilege, and are too honest to vote where they cannot legally 
 do so. This is manifestly one of this class of cases, and there are others 
 like it which appear in this record. William Pratt or G. C. Pratt, which- 
 ever the name is, is a case of like character. With all due respect for 
 the majority, we are constrained to say that the statement of the facts 
 of this case made in their report comes far short of warranting the con- 
 clusion that he was an illegal voter. 
 
 The majority says he "had left Mayfleld six or eight months before 
 the election." Suppose he had; is that inconsistent with the fact that 
 Maytield continued to be his residence? And they say that he said 
 "he had no business there; that he had another situation, and was 
 going to leave; he was absent in another county." That other situa- 
 tion, it appears, was that he went over into the woods to work in a 
 mill. Suppose he did ; does that show that he abandoned his residence 
 at Mayfield ? The next day after the election he went away. One wit- 
 ness says he told him he was going home, East ; another that he said 
 he was going to Iowa. His name was on the great register. His vote 
 was challenged. He was sworn as to his place of residence, and the 
 board decided that he was a competent voter. 
 
 We insist that his vote should not be rejected. 
 
 CHARLES GILBERT. 
 
 The majority report that Charles Gilbert should be rejected as an 
 illegal voter. From this conclusion we dissent. He voted in Poway 
 precinct, and it is claimed that he voted for Pacheco.
 
 30 DIGEST OF ELECTION CASES. 
 
 We here present the House with all the evidence in regard to this 
 voter. 
 
 Page 28 of Eecord : 
 
 FREDERICK REETZKE, being first sworn, testifies : 
 
 Question. What is your name, age, occupation, and place of residence ?- Answer. 
 F. Keetzke; age, forty-three; apiarian; Vallecito, Poway precinct, county of San 
 Diego, California. 
 
 Q. Do you know Charles Gilbert? A. Yes, sir. 
 
 Q. State, if you know, what ticket he voted at the last general election held in 
 Poway precinct, November 7, 1876. A. Gilbert always told me he was a Republican- 
 He asked me which were the Republican tickets. He took one, folded it up, and, to 
 my honest belief, he put it in. 
 
 Q. Do you mean that he took a Republican ticket? A. Yes, sir. 
 
 Q. Did this occur on that election-day? A. Undoubtedly. 
 
 Q. In what precinct did it occur ? A. Poway precinct, San Diego, County, Cali- 
 fornia. 
 
 Q. Was Romualdo Pacheco's name on the Republican tickets in that precinct as a 
 candidate for Representative in Congress? A. It was on the ticket I voted and on 
 the ticket I showed Gilbert. 
 
 Q. When Gilbert asked you which were the Republican tickets, did you give him 
 one with the name of Romualdo Pacheco on it, and is that the one which, in your hon- 
 est opinion, you think he voted? A. The two bunches of tickets were lying close to 
 each other on the same desk. I didn't give him one ; I only showed him the Republi- 
 can ticket with Pacheco's name on it ; he took it, folded it up, and, to my honest belief, 
 voted it. 
 
 Q. State, if you know, where he resided at the time of that election, and where he 
 had been residing for the thirty days immediately preceding that election. A. At 
 Alvah Mitchell's house. 
 
 Q. State, if you know, whether Alvah Mitchell's house was, at the time of said 
 election, in said Poway precinct. A. It was not. 
 
 Cross-examined by Mr. HENDRICK, for respondent : 
 
 Q. Can you swear positively that Gilbert voted the Republican ticket, or a ticket 
 with Romualdo Pacheco's name on it ? A. I was there before Gilbert came ; I showed 
 him the ticket with Pacheco's name on it, and he took it, folded it up, and I did not 
 see him take another before he voted. 
 
 Q. Are you sure that the name of Pacheco was on the ticket which Gilbert took? 
 A. Yes, sir. 
 
 Q. Will you swear positively that Pacheco's name was on the ticket that Gilbert 
 voted? A. No, sir; I will not swear positively to anything of that kind; but to my 
 honest belief it was. 
 
 Q. How do you know that Mitchell's house was not in the Poway precinct? A. The 
 township line divides the precincts, and I know where the township line runs. I saw 
 it surveyed. 
 
 Q. What precinct had Alvah Mitchell been in the habit of voting in previously ? 
 A. Poway. 
 
 Re-direct by Mr. LEACH : 
 
 Q. State whether or not you were present on that election-day when Mr. Alvah 
 
 Mitchell offered to vote in that precinct. A. I was present when he offered his vote. 
 
 Q. State whether his vote was accepted or refused by the election board of that 
 
 precinct. A. I know they refused it, although I did not hear them. The board knew 
 
 that Gilbert gained his residence under Mitchell's roof. 
 
 FRED. REETZKE. 
 
 Subscribed and sworn to before me this 19th day of July, 1877. 
 
 WILL J. HUNSAKER, 
 
 Notai-y Public. 
 
 JAMES ANDERSON, being first duly sworn, testifies : 
 
 Question. What is your name, age, occupation, and place of residence? Answer. 
 My name is James Anderson; my age is tifty-lbur; justice of the peace; Poway, San 
 Diego County, California. 
 
 Q. Were you a member of the election-board of Poway precinct at the general elec- 
 tion held November 7, 1876? A. I was clerk. 
 
 Q. State, if you know, where Charles Gilbert resided at the time of that election, 
 and for thirty days immediately prior thereto. A. He resided at the house of Alvah
 
 WIGGINTON VS. PACHECO. 31 
 
 Mitchell, but was occasionally in the Vallecitos, about four miles east of Mitchell's, 
 staying with Mitchell and Reetzke. 
 
 Q. State, if you know, whether the house and home of Alvah Mitchell, to which you 
 have referred, was in said Poway precinct at the time of said election or not. A. I 
 know nothing further than that it was ruled by the election-board of Poway precinct 
 that it was not in the precinct. 
 
 Q. State, if you know, whether the vote of said Alvah Mitchell was refused by that 
 election-board on that election-day ; and, if so, for what cause ? A. I saw the vote 
 refused, for the reason assigned by the board, that Alvah Mitchell did not live in the 
 precinct of Poway. 
 
 Q. State, if you know, what were Mr. Alvah Mitchell's politics. A. Democratic. 
 
 Q. What are your politics? A. I, sir, am a decided Democrat. 
 
 I rose-examined by Mr. HENDRICK, for respondent: 
 
 Q. Are you an old resident of Poway precinct ? A. Nearly sixteen years I have re- 
 sided in Poway psecinct. 
 
 Q. About how far from the precinct line is Mitchell's house situated? A. I caunot 
 say how far ; we never questioned his right, because in the country a mile or two 
 never barred a man from voting under the former rule. The board was not furnished 
 with scales to determine where each man's house was situated. 
 
 Q. Does the precinct map show whether Mitchell's house is in the Poway precinct 
 or not? A. I do not know. 
 
 Q. Can you swear positively that no portion of Mitchell's house or improvements 
 were in Poway precinct? A. If you will refer to my testimony you will find that I 
 stated that I did not know where the line was; in direct answer, I will state that I 
 do not know. 
 
 Q. Had Mitchell ever voted in the Poway precinct before? A. Yes, sir; as Poway 
 precinct was at the time he A*oted. They have been modifying the precincts lately. 
 
 JAMES ANDERSON. 
 
 Subscribed and sworn to before me this July 19. 1877. 
 
 [SEAL.] WILL J. HUNSAKER, 
 
 Notary Public. 
 
 Now, we submit that this is not sufficient to prove non-residence. 
 True, Mr. Mitchell's house was not in the precinct. But this is not suffi- 
 cient to prove residence at Mitchell's house. The rule of law on this 
 subject is this: 
 
 Nor has the mere statement by a witness that a voter was or was not a resident, 
 without giving facts to justify his opinion, been considered sufficient to throw out such 
 a vote. The testimony shows a number of instances where a witness would state pos- 
 itively the residence or non-residence of a voter on some theory of his own, or some 
 mistake of fact, when other testimony would show with entire clearness that the vote 
 was legal. 
 
 What constitutes a legal residence is generally imperfectly understood 
 by witnesses. It is not sufficient for a witness to say that a man resides 
 in this or that place, but facts should be given to show that the place 
 named was the actual legal residence. It is very easy for witnesses to 
 mistake the place where a man may be staying temporarily for his ac- 
 tual residence; or, in other words, to speak of the place where he may 
 be temporarily at work as his residence, his home, or where he lives. 
 This kind of evidence is not and never should be regarded as sufficient 
 to prove a man au illegal voter, and hence we contend that this evi- 
 dence is wholly insufficient to prove Gilbert to have been an illegal 
 voter. 
 
 Again, this evidence does not prove that Gilbert voted for Pacheco. 
 The substance of the evidence is that he associated with Mitchell, a 
 Democrat; that he took a Republican ticket and folded it up, and the 
 witness says he honestly believes he voted, although no witness testi- 
 fies that he did vote. 
 
 The logic of the majority on this subject, in respect of this vote, is, 
 to say the least, singular. There is an evident feeling that the proof is 
 weak and needs propping to make it stand, and this singular argument
 
 32 DIGEST OF ELECTION CASES. 
 
 is presented: "The contestant could not prove how the voter voted any 
 better, except by calling him as a witness; but if he called him as a 
 witness, he was not bound to testify for whom he cast his vote; if he 
 could not be compelled to answer, he need not be called." Then the 
 majority proceed to say: "But Mr. Pocheco might have called the voter, 
 and if he did not claim his privilege, he could have made it clear for 
 whom he did vote." And not having called him, the inference is drawn 
 that Gilbert would have corroborated the witness whose deposition is in 
 the record. It is unnecessary to comment on this. It is quite as fair 
 to infer that, from the fact that contestant did nat call Gilbert, he knew 
 that Gilbert would not corroborate the other testimony as to residence 
 or voting, and it is certainly quite as incumbent on the contestant to 
 produce the voter as a witness as upon the contestee; more so, indeed, 
 for on the contestant rests the onus. 
 
 Hence we say that there should not be deducted from Pacheco a vote 
 on account of Charles Gilbert. 
 
 MOSES ATKINSON. 
 
 The majority pronounce Moses Atkinson to have voted illegally for 
 Pacheco. From this we dissent, and here present to the House the evi- 
 dence that relates to him. 
 
 Evidence of Jenkins, p. 34: 
 
 Q. State anything you know about the residence of Moses A. Atkinson, on and be- 
 fore the election in last November. State, also, if you know, whether he voted at that 
 election for Congressman; and, if so, for whom? A. He was a resident of San Mateo 
 County for the last one or two years before the election. He rented land and lived 
 there. He voted. I think I challenged his vote. He voted the whole Republican 
 ticket from stem to stern. He has always said so. 
 
 Q. State anything you know about the residence of Joseph Dickenson on and before 
 the 7th of last November, and also if he voted at said election ; if so, what ticket ? A. 
 He left here about eight months before the election and went to Soledad, in Monterey 
 County; resided there eight months. He came back to San Jose" about two weeks be- 
 fore the election. He came here about a week before the election, and voted the Re- 
 publican ticket, saying at the same time that Tilden would be elected. 
 
 Q. Do you mean to say that Moses Atkinson was at no time a resident of this 
 county t A. He was a resident in this county three or four years ago (p. 37. ) 
 
 Q. Where did he go to? A. San Mateo. 
 
 Q. What is his business ? A. He is a hay-presser and farmer. 
 
 Q. From the time he left this country, three or four years ago, has he never returned 
 to Mayfield ? A. He has been here to work : that's all. 
 
 Q. How do you know that he did not make his home in this county f A. Because 
 he was living in San Mateo County. 
 
 Q. Is he a single man ? A. Yes, sir. 
 
 Q. Where was he living in San Mateo T A. He was farming in San Mateo County, 
 and his house was just on the other side of the creek, which is the boundary-line be- 
 tween the two counties. 
 
 Q. How long was he farming there f A. Two or three years; he was a renter. No 
 part of the farm is in Santa Clara County. 
 
 Q. Who owned the land f A. Jeremiah Clark. 
 
 Q. When was the last time Atkinson was in this county before the election? A. 
 He comes here trading most every day. 
 
 Q. Will you swear that ho was not residing in this precinct thirty days before the 
 election? A. I swear that he was not residing in this county within thirty days be- 
 fore the election in November last. 
 
 Q. Was he renting land of Jeremiah Clark in the months of October and November, 
 1873? A. He was. 
 
 Q. How did you know that ? A. He told me so himself; that he had leased the land 
 for two or three years. 
 
 Q. Do you know whether, in the months of October and November, 1876, he was 
 Tenting or farming in Santa Clara County? A. He was not. 
 
 Q. Did ho rent any of Clark's land that was in Santa Clara County ? A. Not that I 
 know of.
 
 WIGGINTON VS. PACHECO. ->3 
 
 On \vli;it ground did you challenge hia vote? A. On the. ground ol' non-residence 
 in tlif county. 
 
 <,'. Was liis name on the great register .' A. I suppose if was. 
 
 (,". When he was challcii-c.l. wa> lit- sworn to answer questions as to residence.' A. 
 He was of course. 
 
 <,>. Was the challenge put TO the hoard of elections .' A. It was, and they decided 
 to receive it, and he voted. 
 
 A> to Moses Atkinson, Charles Ducker testifies, 011 p. 41: 
 
 (}. State, if anything, what you know about the residence of Moses Atkinson on and 
 before the, election in last November, and if you know whether he voted in Mayfield 
 at that election for Congressman: and. if so, for whom.' A. He lived over across the 
 creek, in San Matco County. Must have lived there all of two and a half years before 
 rlie election. He voted at the election in Maytield. I could not tell whether he voted 
 for Congressman or not. I did not see his ticket. I challenged Atkinson. He said 
 he voted the Republican ticket all the time. 
 
 (). Did you see the .Republican ticket used at that election: if so, whose name wa-> 
 r.pon it 1 A. Yes. sir; 1'acheco. 
 
 (}. Do you know what occupation Atkiusoirtbllowed at and prior to that time? If 
 -late. A. Farmer: also he used to go out hay-baling. 
 Where did he farm .' A. In San Mateo County. 
 
 j'. Will you swear that Moses Atkinson was residing in San Mateo County in the 
 mouths of September. October, and November, lt>7o'.' A. He was at his ranch there, 
 but he left about the time of election; he was down baling hay in this county. 
 
 C,*. How long was he baling hay here in this county before election? A. I don't 
 know: he might have been here three or four weeks: may Vie longer. 
 
 Q. Do you know whether he still retained his interest in the ranch in San Mateo 
 County ? A. Nor to certainty; I believe so: yes. he had his interest at that time. 
 
 Q. How do you know .' A. On the night of election he told me so. Told me he 
 lived on the ranch, but he claimed his residence in Mayfield, because he slept more in 
 Mayfield than on the ranch. 
 
 < t >. Where did he sleep in Mayfield .' A. At the hotel, he told me. 
 
 (,. Do you know of his keeping his horses here in Maylield.' A. No, sir; he kept 
 them on the ranch. 
 
 ',. Are you <suiv you challenged Moses Atkinson ? A. Yes, sir. 
 
 i,|. Mr. Jenkins did not challenge him. did he? A. No. sir. 
 
 (,. On what ground was he challenged by yon ? A. That he was not a resident of 
 this county. 
 
 Q. Was he sworn to answer questions concerning his residence? A. I could not 
 swear positively whether he was or not. 
 
 <i>. Do you think he was sworn * A. I could not tell without reflection. 
 
 f, 1 . Was the challenge submitted to the board of election ? A. It was. 
 
 What was their decision .' A. The challenge was denied, and his vote was re- 
 d. 
 
 Respondent moves to strike out all of the above and foregoing testimony of Charles 
 Ducker relative to the residence of Moses Atkinson, on the ground that the decision 
 of the board in denying the challenge and the receiving of the vote was final and con- 
 clusive as to the residence of Moses Atkinson, the challenge having been made upon 
 the sole ground of non-residence, and no allegation of fraud on the part of the board 
 having been made.) 
 
 ';. Will you swear that Moses Atkinson voted for Pacheco for Congressman on the 
 ?th of November last .' A. No. 
 
 Q. Will you swear that Atkinson did not vote for Wiggiiiton for Congressman? 
 A. No. sir. 
 
 Redirect examination : 
 
 Q. You stated, in answer to a question in cross-examination, that you could not 
 -wear positively that Mo>es Atkinson was sworn to answer questions by the board of 
 election. Why do you doubt that he was ? A. Just that it comes into my mind that 
 the judges decided the matter without his being sworn. 
 
 As to this voter, E. C. Scott testifies as follows, pp. 43, 44, 45: 
 By Mr. MALOXK : 
 
 Question. What is your name, age, and place of residence ? Answer. E. C. Scott : 
 
 :'>3; residence. San Mateo County. 
 
 Q. Do you know a man by the name of Moses A. Atkinson f If so, how long have 
 yon known him ? A. I do; have known him three or four years, perhaps longer. 
 Q. State, if yon know, where he resided at and prior to the 7th of November, 1876, 
 
 H. Mis. 58 -3
 
 34 DIGEST OF ELECTION CASES. 
 
 and how long he had resided at his then place of residence ; what his occupation was. 
 and whether he voted for Congressman at the general election held on that day : and 
 where, if yon know. A. His home was in San Mateo County: there is where his land 
 was, and where he generally made it his home. He was a renter : his land was about 
 two miles from Maylield, across the creek : the creek is the boundary-line between 
 San Mateo and Santa Clara Counties. He had been living there two years. I think, 
 that I know of. He told me he voted ; he didn't tell me particularly for who. I think 
 he said he voted in Mayfield. He did not tell me what ticket he voted ; his occupa- 
 tion is what I call farmer ; he goes about baling hay. 
 
 Q. Do you know anything else pertinent to the matter of Mr. Atkinson's qualifica- 
 tions to vote in Santa Clara County on the 7th of November, 1876 ? A. I do not. 
 
 Cross-examination : 
 
 Q. What is yonr business ? A. Farmer. 
 
 Q. How far do you live from Atkinson ? A. Not over a mile and a half. I think. 
 
 Q. Is Atkinson a single man ? A. Yes, sir. 
 
 Q. Who lived on the farm with him f A. During 1876 he had leased his farm to his 
 brother and another person for a portion of the crop. He told me he had rented a 
 part of it to his brother and a part of it to Mr. Poole. Did not tell me whether he 
 had rented the whole of it or not. 
 
 Q. Who put in the crops of 1875 and 1876 ? A. His brother and Mr. Poole. 
 
 Q. Was Atkinson living there then ? A. A portion of the time he would be there. 
 He worked awhile here in Santa Clara County in the spring of 1876, after leasing the 
 place to his brother, with Mr. Coutts, teaming. 
 
 Q. How long was he teaming for Mr. Coutts? A. I do not know ; it might have 
 been a mouth, or thereabouts. 
 
 Q. Then where did he work ? A. Then he worked awhile on the Monnt Hamilton 
 road, in this county about a mouth, or perhaps longer. Then he was back on the 
 ranch in San Mateo County, and has been there ever since, to the best of my knowl- 
 edge, except when he was around baling hay. He was out baling in each of the 
 counties whenever he could get work. 
 
 Q. Who was living on the ranch after he leased it to his brother and Mr. Poole ? 
 A. His brother and his brother's family lived there. Mr. Poole's family was not 
 there. 
 
 Q. After Atkinson returned to the ranch, in the fall of 1876, how often did you see 
 him between that time and the election ? A. I could not say ; I might have seen him 
 a half a dozen or a dozen times. I did not take any note of it. 
 
 Q. What was he doing there? A. He was just stopping there. There was nothing 
 much to do there during that season of the year. 
 
 Q. Do you know that he was not in Mayfield, engaged in the business of teaming, 
 in the mouths of September, October, and November, 1876 ? A. I do not know that 
 he was. 
 
 Q. Do you know that he was not ? A. I do not. 
 
 Q. Do yon know where he claimed his residence ? A. I do not know as I ever heard 
 him say where he did claim his residence. 
 
 Q. After he had leased the farm to his brother, did he have anything to do with the 
 management of it .' A. Xot that I know of. 
 
 Q. Do you know of his having horses and wagons? A. He had some horses and 
 wagons. 
 
 Q. Do you know whether he left the horses and wagons on the ranch after he leased 
 it to his brother? A. No; I can't say that he did. I do not know where he kept 
 them. 
 
 Q. Were yon in Maytield very often? A. Not very often. I was in once or twice 
 a week. 
 
 Q. During the fall of 1876, preceding the election, when you came to Mayfield, did 
 you ever see Atkinson ? A. Yes, sir. 
 
 Q. What was he then doing? A. I can't say, in the fall. He had a barn here. I 
 think I saw him and his horses there in the fall or late in the summer. I believe he 
 bought the lot and put up the barn to keep his horses when he would have any work 
 to do here in town. 
 
 Q. When was this, in reference to the day of election ? A. It was a long time 
 before; about three months, or two months. 
 
 Q. Was he living in Maytield then? A. I think he was; I think he was working 
 here or had been working here. 
 
 Q. How long did he live here in Mayfield at that time? A. I can't say. 
 
 Q. Can you say whether he did not 'live in Maytield from the lime you saw him in 
 Maytield with his horses, in the hitter part of the summer or early part of the fall, 
 until election day .'A. J can't say positively, but I do not think he did. He might 
 have lived here in Maytield two or three months before the election and I not have 
 known anything about it; being a single man, he might have called this his home.
 
 WIGGINTON VS. PACHECO. 35 
 
 Q. Do you know of bis having voted in Sun Matoo County, ever? A. I am not 
 sure, but I think lit- voted at Menlo Park, in San Mateo County, once a year ago; 
 some of the county elections there. 
 
 Q. Do you know of his being transferred from that county to this? A. I do not 
 know; I know his name is oil the great register of this county. 
 
 Q. What are your politics ? A. Democratic. Voted for the Democratic ticket at 
 last election. 
 
 E. C. SCOTT. 
 
 This is all the evidence as to Atkinson. 
 
 This voter had lived in Mayfield ; there is no kind of doubt about 
 that. A year or two before the election he had rented a ranch just out- 
 side Santa Clara County, and about two miles from the place where he 
 voted. He was a farmer and hay-presser. He was almost every day 
 in Mayfield, where he had certainly been a resident, and where he 
 claimed his residence to be. The majority quote paragraph 5, section 
 1239 of the statute : 
 
 5. A person must not be considered to have gained a residence in any precinct into 
 which he comes for temporary purposes merely, without the intention of making such 
 precinct his home. 
 
 There is no evidence that this voter came into this precinct for tem- 
 porary purposes. If it proves anything-, it proves that he went out of 
 the precinct for temporary purposes, and that under the law does not 
 lose him his residence ; and although he was farming outside the pre- 
 cinct he claimed the precinct to be his place of residence. He was 
 evidently well known. His vote was challenged on the ground of nou - 
 residence, but was admitted. 
 
 As to this voter, the majority of the committee have evidently over- 
 looked the testimony of E. C. Scott. He testifies that in 1875 and 1876 
 Atkinson had leased to his brother the farm that lay outside the county. 
 This witness testifies : 
 
 Q. After he leased the farm to his brother did he have anything to do with the 
 management of it ? A. Not that I know of. 
 
 Q. Do you know of his having horses and wagons? A. He had some horses and 
 wagons. 
 
 Q. Do you know whether he left the horses and wagons on the ranch after he leased 
 it to his brother f A. No ; I can't say that he did. I do not know where he kept them. 
 
 Q. Were you in Mayfield very often ? A. Not very often ; I was in once or twice a 
 week. 
 
 Q. During the fall of 1876, preceding the election, when you came to Mayfield, did 
 you ever see Atkinson ? A. Yes, sir. 
 
 Q. What was he then doing? A. I can't say, in the fall. He had a barn here ; I 
 think I saw him and his horses there in the fall or late in the summer; I believe he 
 bought the lot and put up the barn to keep his horses when he would have any work 
 to do here in town. 
 
 Q. When was this, in reference to the day of election ? A. It was a long time be- 
 fore about three mouths or two months. 
 
 Q. Was he living in Maylield then ? A. I think he was; I think he was working 
 here, or had been working here. 
 
 Q. How long did he live here in Mayfield at that timeT A. I can't say. 
 
 He had a barn and kept his horses in the precinct where he voted. 
 It seems to us that this evidence is wholly insufficient to prove Atkin- 
 son an illegal voter. 
 
 JOSEPH A. SCOTT. 
 
 This man is also alleged to have voted illegally for Pacheco. 
 William Granger testifies (p. 72) : 
 
 Q. Were you present at the said polls at the last November election when one J. A. 
 Scott offered his vote? A. I was, and challenged his vote: there were others that 
 challenged his vote at the same time. I challenged hiirf on the grounds that he was 
 not a legal voter in this precinct ; that he had not resided in the precinct thirty days
 
 36 DIGEST uF ELECTION CASES. 
 
 prior to tin- flection. ]Je swore that, as near as I can now remember, it was not thirty 
 -inn- lit- bail last come hen : that from his first arrival here, coming on business 
 for tin oil company, that it wa> thirty days or over: that he did not know positively 
 that this would be his place of residence, but had intended, although not certain of 
 his intentions, that he would make this his place of residence, as he was subject to 
 orders from the company -which he represented. 
 
 Q. Did he or not state upon that examination that he did not bring his family until 
 upon his second visit or return to this place f A. I believe he did. 
 
 Q. Who voted him? A. I cannot at present call the name* of those who seemed to 
 control him. hut it was the same, or near the same, crowd that was endeavoring to 
 bulldoze the voters that day. 
 
 D. C. Scott testifies (pp. 77, 78) : 
 
 D. C. SCOTT, being first by me duly sworn, deposes and says as follows, to wit : 
 
 Question. Do you reside in Ventura precinct, county of Ventura ; if so. how Ion _ 
 Answer. I do, since a year ago last May. 1876. 
 
 Q. Do you know .J. A. Scott ? A. Yes. sir. 
 
 < t >. Do yon know whether or not his residence was in Ventura precinct for thirty 
 days prior to the ?th of November, 1876? A. He came here on the 17th day of Octo- 
 ber, Id7b'. to make his resilience. 
 
 Q. State if you know where was .J. A. Scott's place of residence immediately before 
 he came to said Ventura precinct. A. Andrew's Station, or Lyons Station. Los Ange- 
 les County. California. 
 
 Q. Were you present at the polls of Ventura precinct at the election of the 7th of 
 November last .' A. Yes. sir. 
 
 Q. Did J. A. Scott otter to vote at that election? A. Yes. sir. 
 
 Q. \Vas his vote challenged : if so, upon what grounds * A. His vote was challenged 
 by several parties: one objection was that he had just been registered, and the other 
 was that they knew when he came here. 1 remember what was said. He swore his 
 vote in. 
 
 (The above question and answer, so far as relates to his oH'ering hi.s vote and chal- 
 lenging his vote, objected to as Incompetent.) 
 
 < t i. Do you know who voted Mr. .J. A. Scott .' 
 
 (. Objected to a* incompetent and irrelevant and immaterial.) 
 
 A. Colonel Heines and W. J. Williams are the only ones I noticed particular. 
 
 Q. Were those persons working that day to obtain votes for Mr. Wigginton or Mr. 
 Pacheco for member of Congr- 
 
 (Objected to for the same reasons.) 
 
 A. For Mr. Pacheco. 
 
 Q. Do you know whether Mr. J. A. Scott is a Republican or a Democrat, and what 
 ticket he* voted at said election ? 
 
 (The first part of question objected to for the same reasons.) 
 
 A. He is a Republican. I could not swear to the ticket. I did not see it put in. 
 
 Cross-examination : 
 
 Q. How do you know that Colonel Heiues and W. J. Williams were working for 
 Pacheco ? A. I heard them say so themselves; that they were working for the whole 
 ticket, the Republican ticket. 
 
 Q. You say that J. A. Scott came here on the 17th day of October, 1876. Did he 
 bring his family here on that day ? A. I don't think he did. I saw his name on the 
 register. If he did not bring them then they came right away after. 
 
 Q. When did you see his name on the register ? A. On the 17th day of October, the 
 day he arrived. 
 
 Q. Haven't you seen it since .' A. I saw it a few days before the grand jury met. I 
 went thereto be sure what day it was. 
 
 Q. Is not it a fact that you are swearing by the register ? A. I wasthere at the hotel 
 the day he arrived. I know it to be the 17th day of October without the register, but 
 I referred to that to make sure. 
 
 Q. You are not certain whether he brought his family with him at that time or 
 not, are you ? A. No, sir. 
 
 Q. He has been to work here ever since that time, has he not ? A. Yes, sir. 
 
 Q. He was here before that time, wasn't he T A. Yea, sir. 
 
 Q. And went back for his family, didn't he .' A. He came here August 26. I had 
 orders from R. C. Page, the manager at that time, not to let him make any oil in Veu- 
 tura County, and he went back to Lyons Station: he came down again on the 14th 
 day of September, and it was not decided then that he should stay here ; he came 
 back again about the 17th of October to go to work; he got here on the 17th. 
 
 (All of the above answer that relates to the orders of the company or R. C. Page, in 
 relation to J. A. Scott not being allowed to make any oil, and so forth, is objected to 
 as not responsive to the question.)
 
 WIGGINTON VS. PACHKCO. 37 
 
 (.}. How long did he stay when he came here in August ' A. 1'hrce day.-. 
 
 (.}. Didn't he apply tor leave to go to work .' A. Yes, sir. 
 
 <.}. How long did in- stay when ho came again on September 14 .' -A. Aboii' i 
 three days. I don't remember exactly. 
 
 O_. Didn't he again on that occasion seek to go to work ? A. No. sir. There v 
 new manager hen- at iliar time, and he had not decided then who should coin:- hereto 
 refine, ami loft me. in charge of the business here until lie could ger some reliner. It 
 was not ileciiied hy this new manager whether Scott should come here < ivmain 
 
 \vhere lie V as. 
 
 Q. Will \oa swear ihat Mr. Scott was not at that time trying to get here ro re tine, 
 oil.' A. He was trying to got to come here, but could not come without orders from 
 the company. 
 
 <,. But lie was here, wasn't he .' A. He would ride out here and look around, and 
 go back home again. 
 
 I>. C. SCOTT. 
 
 Witness waives the reading of the deposition. 
 
 J. A. Scott was himself called as a witness, and testified as follows 
 (pp. 136, 137) : 
 
 Question. State your name, age, place of residence, and occupation Answer. My 
 name is ,Jos--ph A. Scott: my ago. forty-four: my resilience is San Buenaventura : I 
 am refiner of oils, and superintendent of the California Steam Oil Companv. 
 
 Q. When did yon come to San Buenaventura to reside? A. I came, with the inten- 
 tion of making this my home, on the 14th of September, !"<?(>. 
 
 Q. Has this licen your home ever since that time f A. I have considered it so ever 
 since that time. I have been backward and forward from the two places which I 
 have in charge: one of them is at Andrews Station, and the other here. 
 
 Cross-examination : 
 
 Q. In what county is Andrews Station .' A. In Los Angeles County. 
 
 (,'. Where was your residence immediately before the l-ith of September, ltf?(5 .' A. 
 h was at Lyons Station. 
 
 '<. Is Lyons Station near Andrews Station in Los Angeles County.' A. Yes. sir: 
 one mile apart. 
 
 <,>. How long had yon been residing there with your family before the 14th of Sep- 
 tember. I^Tti.' A. I resided with my family three months andsix days. 
 
 i, 1 . What business were you engaged in atthat place ? A. I was general superintend- 
 ent of the works of the California Steam Oil Works Company there and here in San 
 Buenaventura. 1 also tn-;;ied oils there the same as I do now here. 
 
 Q. Have you continued in that employment there and here ever since and up to this 
 time ? A. I L; 
 
 ',>. Are you keeping house in San Buenaventura .' A. I am. 
 
 (}. How long have you heen housekeeping in this place? A. It was early in No- 
 vember. i-7i; about tin; oth and 10th of November, 1876. I can't say positively what 
 day. 
 
 Q. Might it not have been later than the 10th of November, between the 10th and 
 the I." th ? A. N >, sir: I now think that it was on the 3d of November, l-Til. that we 
 e.omii'oncf'd to keep house. We paid rent from the 1st of November. 
 
 ( Y >. Whew was your family living up to the 3d of Novembi r. l-Cii ' A. They were 
 living part of the time at Lyons Station and part of the time at San Buenaventura. 
 
 Q. When did yon remove your family from Lyons Station to reside permanently in 
 >an Buenaventura .' A. I first brought my wife and family in the early part of An _ 
 IrCt.. about the 10th, I think ; it might have been the lf>th: I am not sure about the 
 date. I thought at that time that I might perhaps leave them here and make this 
 my home, but I concluded to return with them for a week or so: then I didn't bring 
 my family again, I think, about the 26th of October, but returned myself, Septe'iib.--- 
 14, to se.-nre a house, in order to bring niy family. 
 
 C 4 >. During all this time, was you engaged as superintendent of the company you 
 mentioned in that business at Andrews Station? A. I was superintendent botb there 
 and here during this time. I was general superintendent ar both plaee>. 
 
 ',. Did you board with your family at a public house at Andrews Station, or 
 you housekeeping while there? A. We were boarding at a public house; took our 
 meals at a public house and hired a cottage where we roomed; the cottage was con- 
 nected and was a. part of the hotel where we boarded. 
 
 Q. Did you furnish this room yourself, or was it furnished by the hotel-keeper? A. 
 The room was furnished by the hotel-keeper, but we used our own linen and bedding. 
 
 Q. Did you bring any furniture (household furniture ) to this place from your home 
 at Andrews Station, when you rem >ved to this place f A. None, to my knowledge. 
 Our household goods were shipped from Los Angeles here by steamer. 
 
 24807"?
 
 38 DIGEST OF ELECTION CASES. 
 
 Q. Of how many did your family consist at the time you removed to San Buenaven- 
 turia .' A. My wife and one boy. 
 
 Q. How many days, if you can recollect, were you in San Buenaventura with your 
 family after your return here, and next before ytou went to housekeeping, and what 
 house' did you stop at here ? A. Well, we stopped at the Occidental Hotel ; think my 
 family arrived October '26, and I arrived with them. I can't remember how long it 
 was before I returned again to Lyons Station. 
 
 Redirect: 
 
 Q. Yon say your furniture was shipped direct by steamer from Los Angeles here- 
 Had you been keeping house in Los Angeles, or were your gooas unpacked in Los An- 
 geles f A. I had not been keeping house, nor my goods unpacked. They were just 
 as they were shipped from the East, and as they were laying at the warehouse in Los 
 Angeles. 
 
 Q. Prior to yon and your family commencing to keep house in this town, on or about 
 the 3d of November, 1876, your wife and boy had been boarding at hotels, both here 
 and at Lyons Station, since they arrived from the East, have they not ? A. We were 
 one month boarding at Los Angeles, at the Saint Charles Hotel, and the balance of 
 the time we boarded at hotels at Lyons Station and here, up to the time of our going 
 to keeping house here. 
 
 Q. Were you ever registered as a voter in Los Angeles County ? A. I never was : 
 no, sir. 
 
 Q. Were you on the great register in any county but this since you came to this 
 State ? A. None, to inv knowledge; no, sir. 
 
 .T. A. SCOTT. 
 
 Deposition of E. A. Edward*. 
 
 Question. State your name, age, place of residence, and occupation. Answer. My 
 name is E. A. Edwards; I am thirty-three years of age; I am a merchant, and reside 
 in San Buenaventura. 
 
 Q. Are you acquainted with the previous witness, J. A. Scott ? A. I am. 
 
 (y. When did you lirst become acquainted with him? A. I think it was the early 
 part of Is76 : the winter of 1876. 
 
 o. Where? A. -At Lyons Station. 
 
 Q. When did yon first see him iii this town, or about, when? A. I couldn't tell the 
 month ; I think that he was first here the early part of the summer or spring of 187H. 
 
 Q. What business was he engaged in, if any. when yon first saw him here ? A. He 
 was .superintending the refinery of the Star Oil Works Company. 
 
 Q. The same company that he is now employed by ? A. The same. 
 
 Q. Do you know of his looking for a house, or having any one else looking for a 
 house for him at any time during the summer of 1876? If so, state what you know 
 about it. A. Some time during the latter part, of the summer of 1876 I think it was 
 about the middle of August he was here with his wife, stopping at the Santa Cliira 
 House, and I asked him if the company for whom he worked had concluded to locate 
 in here. He said that it had, and that he would like to have me get him a lions*-. 
 
 Q. Do you know anything about the company locating in here, or intending to do 
 so. from anything learned from any member of the company ? If so, state what. A 
 Yc-. sir; Mr. Scofield, one of the members, told me that, they would put Scott her*-. 
 
 Q. Was there any reason assigned by Mr. Scofield, or any other member of the com- 
 pany, why D. S. Scott should not know that J. A. Scott was to relieve him of the 
 charge of the refinery here? A. I could not say positively that any member of the 
 company did; all expressions about that emanated from J. A. Scott, and not from any 
 member of the company ; I think so. 
 
 E. A. EDWARDS. 
 
 Here we have presented to the House all of the evidence in regard 
 to .1. A. Scott. He was on the great register; he himself should know 
 better that any one else where his residence was. The evidence is not 
 sufficient to show that he was not a legal voter; and. besides this, the 
 evidence does not show for whom he voted. For both of these reasons 
 his vote should not be rejected or deducted from the vote for Pacheco. 
 
 The minority therefore claim that, as to the four voters the testimony 
 in relation to whom we have been considering, their ballots cannot be 
 rejected; and consequently, instead of deducting from Pacheco twelve 
 votes. ;is reported by the majority, there should only be deducted eight.
 
 WIGGINTON VS. PACHECO. 39 
 
 ILLEGAL VOTING- FOR CONTESTANT. 
 
 The majority concede that the following persons voted illegally for 
 contestant, viz : John Doran, John Geddeus, William A. Urophy, Joseph 
 Marks, James A. Keys. Jn this the minority concur, so that there are, 
 by the unanimous opinion of the committee, five votes to be deducted 
 from the contestant on account of, these voters. 
 
 But the majority report that the following-named persons did not 
 vote illegally, S:c., for contestant, and therefore that no deductions shall 
 be made froui his vote on their account, viz: Jesus Yorba, Thomas 
 O'Mara. Thomas IT. Alethvin, George M. Clark, Gustave C. Ferret, John 
 Peterson. In this the minority do not concur. We insist that these 
 men voted illegally for contestant, and therefore their votes should be 
 deducted. 
 
 We therefore, for the convenience of the House, present the evidence 
 as t<> each. 
 
 Jesus Yorba. 
 
 As to this man, the majority concede that he voted illegally, but claim 
 that the evidence is not sufficient to prove that he voted for Wigginton. 
 It is not necessary, therefore, to insert the evidence as to the illegality 
 of his vote : we will therefore only produce that relating to the person 
 for whom he voted. 
 
 T. J. Daly testified, pp. 100, 101 : 
 
 i,|. Were you a voter of San Diego in last November; if so, in what precinct ? A. 
 ~ir: in first ward Old Town. 
 
 If you know whether Jesus Yorba voted on 7th last November in this county, tell 
 win-re lie voted. A. He did, at first ward in this city. 
 
 V- If yon know what his politics were at that time, please state it. A. Democrat. 
 
 < 4 >. How long had Yorba been ;; resident of first ward precinct on the 7th of Novem- 
 ber. L*-'7o .' A. He had been in Old Town about ten or twelve day first ward. 
 
 V- If you ever heard him say anything about who he voted for for Congressman in 
 this district, or for whom he intended to vote for for Congressman, please state all lie 
 said about it. 
 
 i Attorney for contestant Wigginlon, E. Parker, objects to the question last proposed, 
 and to the answer which is intended ro elicit, for the reason that the answer would 
 only be hearsay testimony.) 
 
 A. 1 never heard him say. 
 
 (,'. If any one came to the polls with said Yorba at the time he deposited his ballot, 
 tell wuo he was. A. Angle Smith. 
 
 Q. What was Smith's political A. Democrat. 
 
 < t >. Whom did Smith vote for for Congressman, do you know? A. T do: for P. D. 
 Wigginton. 
 
 Cro.vs-rxamination : 
 
 Q. What nationality did this Jesus Yorba belong to.' A. Native of California, I be- 
 lieve. 
 
 (.,>. Where was h'e residing at the time you knew him ? A. Old Town. He was here 
 on business. 
 
 Q. How long had yon known him on the day of election, 7th November. 1-76? A. 
 I did not know his name until he came to vote. I had seen him a few days before 
 that in San Diego. 
 
 Q. Do yon know where he was residing at the time? A. I do not know positively, 
 but I think at Jose Estadillo. 
 
 (). To what political party does Jose M. Estadillo belong.' A. lie is a Republican, 
 but did not consider himself a voter: he claimed to be a citizen of Lower California. 
 
 (}. Do yon mean by that that he did not vote at that election ? A. I do : he did not 
 
 Vote. 
 
 ','. What countryman was Jose M. Estadillo? A. A California!!. 
 ( t >. What countryman was Angle Smith ? A. Half-breed American and California!!. 
 Q. How do you know Angle Smith voted for P. D. Wiggiutou ? A. He told me so. 
 Q. Is that the only way you know ? A. He was electioneering all the day for Wig- 
 ginton.
 
 40 DIGEST OF ELECTION CASES. 
 
 Q. How do you know be was electioneering all the day for Wigginton if A. lie Told 
 me that be would, and other parties told me that be was. 
 
 Q. Then all yon know ab<mt his vot ; ng for P. D. Wiggintou for Congressman No- 
 vember 7, 1876, is Avhat yon have beard him and others say .' A. He was the only one 
 who told me so. 
 
 Q. Were you an officer of that precinct? A. I was an election ofliccr. 
 
 <.,. Do yon know Yorba ? A. I do. 
 
 Q. Do yon know how he voted for Congressman November 7187(5? A. I do nor. 
 
 Q. What nationality does he belong to? A. Native Californian. 
 
 Q. Do you know from common report bow the native California!) 8, as a class, voted 
 in. the fourth Congressional district of Cal ifornia for Congressman November 7, 1870 ? 
 A. They voted, as a class, for Governor Pacheco. 
 
 Q. Did yon or did yon not take an active or prominent part in the election which 
 came off 7th November, 1876, in first ward precinct? A. I did take an active part. 
 
 Q. Do you consider yourself qualified to tell, to a reasonable certainty, how Ji-su^ 
 Yorba voted for Congressman at that election ? A. I do not. 
 
 Q. Have you an opinion as to how he voted ? A. I have. 
 
 Q. What is that opinion ? A. I have an opinion, based on report, that Yorba voted 
 for Mr. Pacheco. 
 
 Q. Do you know that the native Californians generally vote for one of their own 
 race when he is a candidate for office ? A. They do. 
 
 The proof is that he was a Democrat and was voted by Angle Smith, 
 a strong Democrat, who was actively supporting- Wig-gin ton, and elec- 
 tioneered for Wigginton all day . According to all rules on the subject, 
 this would be sufficient to establish that he voted for Wiggiuton. Cer- 
 tainly, according to the ruling of the majority in some of the cases pre- 
 sented by the contestant, it is amply sufficient. The reason given by 
 the majority for holding that the proof will not warrant finding that lie 
 voted for Wigginton is that he was a native Californian, and it is asserted 
 that they as a class voted for Pacheco. But that will not suffice, for it 
 does not appear that they as a class are Democrats. If that were clearly 
 proven the proposition would not be without some force. But even then 
 it is fully answered by the fact that Angle Smith, who was a Democrat, 
 who voted for Wigginton and electioneered for Wigginton and went to 
 the polls with Yorba, was one of these same natives a half breed 
 American and Californian. 
 
 This is an illegal vote for Wigginton, and should be deducted. 
 
 George M. Clark. 
 
 This man wrote his name on his ballot for the express purpose of 
 imparting Imoivledye of the fact that he voted that particular ballot. It 
 is clear that under the statue of California that ballot should have been 
 rejected. We quote the statute. Section 1207 : 
 
 iSKC. 1207. When a ballot found in any ballot-box lie-tins upon it ainj imprennioii, device, 
 color, or tiling, or is folded in a manner to designate or impart kntHpledge of tin- person who 
 voted such ballot, it must, with all its contents, be rejected. 
 
 The evidence that he voted for Wigginton is distinct and emphatic. 
 It was a marked ballot, Clark having written his name on it, so that it 
 could be known that he voted it. 
 
 The following uncontradicted testimony makes these things clear : 
 
 <,>. Do yon know George M. Clark, of the first ward? A. I do. 
 
 Q. Please state whether or not George M. Clark voted ar the iirst ward precinct in 
 this city on the 7th November, 1876. A. He did. 
 
 Q. For whom did be vote for Congressman ? A. For P. D. Wigginton. 
 
 < ( >. If there was any mark upon his ballot at the time he voted which would distin- 
 guish it from other ballots after it was deposited in the box. please state what that 
 mark was. 
 
 (Objected to by attorney for Wigginton, on the ground that it presumes that the 
 witness knew whether or not the ballot had a private mark on it at the time it was 
 deposited in the ballot-box, anil on the ground that tin.- re has been no evidence offered
 
 WIGGIXTON VS. PACHECO. 41 
 
 <>r given tending to show that the witness possessed any such knowledge or informa- 
 tion.) 
 
 A. There was; his name was written on the bottom of the ticket. 
 
 <,*. If Clark said anything about it at the time he deposited the ballot, tell what he 
 said. A. lie did. He had come to the polls two or three times n> vote, and when near 
 the polls James McCoy took him a\vay: he came again just before the polls closed 
 and voted : he then said" that he had written his name on the ticket so that old Jim would 
 know that he had not roted ayainst lii* wishes. 
 
 < H '. If you were acting in any official capacity on that day, please tell what it was. 
 A. I was; I was one of the judges of election. 
 
 Thus it is apparent that this voter put this mark, his name, on the 
 ticket for the express purpose of impart Ing knowledge of the person who 
 voted it. bringing the case exactly within the provisions of the statute 
 above quoted. 
 
 But the majority say that the name was written on the face of the 
 ballot. Now, read again the statute and see if that makes any difference. 
 The statute is, "when a ballot found in any ballot-box bears upon it any 
 impression," &c. It makes no kind of difference where that impres- 
 sion is placed. When such a ballot is found it must be rejected. If 
 the device or impression were upon the back, as would seem to be the 
 interpretation of the majority, then the ticket need not find its way into 
 the box, because it could be detected or seen before it went in ; but it is 
 clear that no matter where it is placed on the ballot, when such ballot 
 is found it is to be rejected. 
 
 But the majority further urge that there is no evidence that this bal- 
 lot was counted. The following evidence would seem to settle that 
 question as well as the question as to whom he voted for: 
 
 Deposition of T. J. Daley. 
 
 Question. Did yon see the ballot of George M. Clark deposited in the ballot-box at 
 that election .' Answer. 1 did. 
 
 Q. Did yon at that time see any private mark upon that ballot by which it, could be 
 distinguished from other ballots? A. I did not: where I was sitting I could not see 
 into tlie ballot-box. 
 
 ( t >. Then how c;;n yon say there w:is a private mark upon the ballot which he voted 
 that day .' A. After the po'lls were closed, the board proceeded to count the votes. A. 
 I,. Sed'-y, the inspector, handed the ballots to me, oue by one, as one of the judges of 
 the dec! ion, to read them to the clerks: in reading the ballots, one was handed to me, 
 and the n;ime of George M. Clark was written on the bottom of it, just as Clark had 
 said: written with lead-pencil. 
 
 < t >. Do yon know of your own knowledge that, that ballot with Clark's name upon it 
 wa> voted by that (ieoige M. Clark.' A. I only know what he said when he voted; 
 there was no other ticket with his name on. 
 
 Redirect examination : 
 
 <.,. Do yon know the handwriting of George M. Clark, who voted at that precinct as 
 above stated? A. I do. 
 
 ','. Was the name on that ticket in his own handwriting ? A. It was. 
 <,>. Who was voted for for Congressman on the ballot upon which was written the 
 name of George M. Clark .'A. I'. D. Wigginton. 
 
 Q. What's the politics of James McCoy! A. Democrat. 
 
 T. J. DALEY. 
 
 It seems to us that if there is anything plain in this case, it is that 
 this vote was east and counted for Wiggintou, and should be deducted 
 and voted for contestant. 
 
 Thomas O'Mctra. 
 
 This man evidently had no right to vote. He procured the name and 
 number of another person on the great register, personated that person, 
 and voted for contestant.
 
 42 DIGEST OF ELECTION CASKS. 
 
 The following; is the evidence (Record, page 149): 
 
 WILLIAM W. Kmuxsox, being duly sworn, says: 
 
 (Question. How long have yon lived in the city of Los Angeles, comity of Los .'. 
 les, State of California .' Answer. Eight years on the loth of this month. 
 
 Q. Were you at the polls in the second precinct of the city of Los Angeles at the 
 election of Representative in Congress, in November, lc?H, while the votes were being 
 A. I was. 
 
 Q. Did you see the person vote who gave his name as Thomas O'Mara. voting num- 
 ber f)9f>o on the great register of Los Angeles County .' A. I did. 
 
 Q. Was his vote challenged .' A. It was. I challenged it. 
 
 Q. On what grounds, and for what reasons? A. On the ground that he was not a 
 citizen of the United States, and that he was not on the great register; that he wa> 
 not the person whose name- he was voting. 
 
 Q. Was his ballot received by the board of election f A. It was. 
 
 Q. Why did you challenge his vote on the reasons heretofore stated .' A. Because a 
 short time previously, on the same day. he was in the^county clerk's oriice. and wanted 
 the county clerk, myself, and several others to get him naturalized, he stating that he 
 was 7iot naturalised, but that lie had served in The Army, and had a right to be natur- 
 alized ; but he had no papers to show that he had served in the Army. The county 
 clerk told him that there was no court in session, and that he could not be natural- 
 ized that day. He also, at that time, gave a different name from that under which he 
 voted. His age was apparently over sixty, while his age on the great register, at that 
 date, was thirty-four. I mean the name by which lie voted. 
 
 Q. Did you hear this party state how he voted or intended to vote, or set- him re- 
 ceive the ballot which he voted.' 
 
 (Objected to by Mr. Ganahl as leading.) 
 
 A. He told Mr. Potts, myself, and others, while in the clerk's office, and afterward 
 to myself, but before he voted, that he was a good Democrat, and wanted to vote the 
 Democratic ticket. He came to the polls with his ticket direct from a stand kept by 
 Mr. Rocder. a Democrat, Avho afterward told me that he gave him his ticket and num- 
 ber ami he had his number on a piece of paper when he came to the polls. 
 
 (Counsel for contestant, Wiggintou, moves to strike out all the testimony as to the 
 declarations of the voter; as to his intention and desire to vote the Democratic ticket, 
 as the same furnish no evidence of the fact that the voter cast his vote for Mr. Wig- 
 gintou, as it appears from the county of Los Angeles and the city: also, that there 
 were at least over two hundred Democrats, so called, who voted for Mr. Tildeu and 
 who did not vote tor Mr. Wiggintou, and out of that number at least one hundred and 
 twenty-five who voted for Mr. Pacheco. 
 
 Contestant Wiggintou objects to the statements of Boeder to the witness Robinson 
 as wholly incompetent, upon the ground that the same are hearsay.) 
 
 Q. How long since you have seen the person referred to who cast the vote ? A. I do 
 not know that I have seen him since the day he ca-.t the vote. 
 
 Q. Did you examine the ballots that were distributed by Mr. Roeder on that day ; 
 and, if so, what name was upon said ballots for Representative in Congress from this 
 Congresvsional district .' A. I did: and Mr. Wigginton's name was on all the tickets I 
 -a\v for Congress. 
 
 Q. Do yon know where the party to which you have referred as voting is at the 
 present time? A. I do not. 
 
 Q. Was the party to whom yon refer as voting on number 5953 the same party de- 
 scribed in the great register of 1376, of Los Angeles County, under thai number.' A. 
 He was not; he was a much older man. 
 
 It seeins to us that this is a clear case of falsely personating another. 
 There is no evidence that weakens the force of what is quoted above. 
 On the contrary, it is strengthened by the cross-examination, as witness 
 the following: 
 
 '.,. Is not your entire evidence, as to the identity of the party voting with the 
 Thomas O'Mara enrolled, based upon the appearance of the party voting and the en- 
 tries in the great register opposite the name of Thomas O'Mara? A. Partly so: but 
 it is based also upon his own repeated declarations above testified to. 
 
 Q. Did he not in these declarations state to you that his name was Marja ? A. My 
 recollection is that he gave his name as Patrick or John Mara. It certainly was not 
 Thomas O'Mara. 
 
 This was clearly an illegal vote for Wigginton.
 
 WIGGIXTON VS. PACHECO. 43 
 
 (in stare C. Per n't. 
 
 This mail voted for contestant without being naturali/ed. The fol- 
 lowing evidence is conclusive on that subject (see Record, p. 152): 
 
 Mr. ALFHEO JAMES sworn. 
 
 Question. Where do yon now reside, and it' in Los Angeles County. California, how 
 long have yon been a resident of said place .' Answer. I ivsid>- in Los Angeles County. 
 California, and have resided there between eight and nine A ears. 
 
 (>. Were yon at the polls in the fourth precinct, civy of Los Angeles, at the election 
 for Representative in Congress on Xovember 7, 1876? A. I was. 
 
 < t >. Did you see the person vote who gave his name as Gnstave C. Perret? A. I did. 
 
 <,>. Was his vote challenged f A. I challenged his vote. 
 
 < t '. On what grounds did yon challenge his vote? A. On the ground that he was 
 nor a citizen of the United States, and also that his name was not on the great reg- 
 ister of Los Angeles County. 
 
 V>. Was his ballot received by the board of election? A. Ir 
 
 Q. Do yon know from whom he procured his ballot? A. Of my own knowledge 1 
 do not. lie was immediately prior to ihe time when he presented his ballot in com- 
 pany with J. L. Arpin. and Arpin during that day was frequently in company and ap- 
 parently in consultation with Thomas D. Mott. and I also think with Thomas Rowan, 
 both of whom were actively at work on that day for the Democratic ticket, including 
 P. D. Wigginton for Representative in Cong, 
 
 (>. How long have yon known Thomas D. Mott, G. L. Arpin, and Thomas Rowan, 
 and what have been their political affiliation! during that time? A. I have known 
 them about live years, during all of which time I have known them to be active mem- 
 bers of the Democratic party. 
 
 V- How long since you have seen the man who voted as Gustavo C. Perret ? A. I 
 have not seen him since the day he voted. 
 
 ! >o you know where he now is ? A. I do not; I have made inquiries concerning 
 his whereabouts without gaining any information relating thereto. 
 
 Cross-examined: 
 
 <,>. Did the man Pt-nvt swear in his vote? A. He did. 
 
 >>. Did he present his card of registration .' A. He did. 
 
 V- Do you nor know that he voted for Padieco ' A. I do not. 
 
 (}. 1 >o yon not know that Thomas D. Mott and Thomas Rowan are warm friends of 
 Mr. Pacheco .'A. 1 do not. 
 
 < t >. Do you not know at least a hundred so-called Democrats voted for Mr. Pacheco 
 in this city .' A. I do not. 
 
 V. Do yon know how this man Perret voted, whether for Wigginton or Pacheco? 
 A. I do not. 
 
 < t '. Are you a Know-Nothing or a Republican? A. I am a Republican. 
 
 (,. Are you not an active Republican, and were you not holding office under the 
 Fed.-ral Government in Xovember last, and did you not as snch take an active part iu 
 the election in that month.' A. I am. and was at that time register of the United 
 >tar,> land office in this city, but took no more active part in the election than I deemed 
 it niv duty to my party. 
 
 ALFRED JAMES. 
 
 JOHN BRIERLY, on p. 159, testifies: 
 
 <,. Do yon know Gustavc C. Perret, and did you know him the day of the election, 
 Xi'M'inbtr 7. l-T(i.' A. I saw him at the polls in the fourth precinct of Los Angeles 
 City. Los Angi-lcs County, at that election. I have no other acquaintance with him. 
 
 <,". Was his vote challenged at the time you refer to? If so, state what occurred. 
 A. It was challenged by Alfred James, on the grounds that he was not a citizen of the 
 L'nited States, and that he was not enrolled upon the great register of Los Angeles 
 County. He presented a eertitieate of registration, and his vote was received by the 
 board of election. 
 
 Q. What do you know of his politics at that time and before? A. I had no personal 
 acquaintance with him, and only know the politics of the person who gave him his 
 ballot and was his witness when he applied for naturalization papers. 
 
 < t '. Who was the man that gave him his ballot, and what kind of ballots was he dis- 
 tributing at the time lie gave Perret his ballot? 
 
 (Objected to by counsel for contestant as incompetent, immaterial, and irrelevant.) 
 
 A. His name was J. L. Arpin. He was distributing straight Democratic ballots at 
 that time. 
 
 Q. Do you swear that Perret voted The straight Democratic ticket .' A. I have 
 stated that I have no personal acquaintance with Perret, and know nothing as to how
 
 44 DIGEST OF ELECTION CASES. 
 
 he voted, except that J. L. Arpin, Avbo was working for the straight Democratic ticket 
 and distributing straight Democratic ballots, was Ferret's \vitness when he applied to 
 be naturalized, and Arpin gave Ferret his ballot. 
 
 Q. Do you swear that he voted the ballot that Arpin gave him ? A. I cannot swear 
 that he voted that ballot, though I went to the polls and requested Mr. James to 
 challenge his vote, and was observing him closely, until he gave his ballot to the in- 
 spector of the election, aud I firmly believe he did not change the ballot after he re- 
 ceived it from Arpin. 
 
 Q. I do not ask you as to yonr belief: I ask yon to swear to what yon know. A. A 
 Jill ballots in this State are uniform in si/e and style of paper nnd printing, and the 
 lawforbids theunfolding of a ballot within one hundred feet of the polls. I cannot and 
 do not know how anybody voted, except myself: and by tbe statements of other 
 voters I do not know how Ferret voted. 
 
 JOHN R. BRIEKLY. 
 
 This man Ferret had not been naturalized. It is perfectly clear that 
 he was not naturalized until the 2d of December following the election, 
 as is shown by the following: records : 
 
 In the county court of the. State of California. 
 Present, Hon. H. K. S. O'Melveuy, judge. 
 
 In the matter of the application of Gnstave C. Ferret, an alien, to become a citizen of 
 
 the United States of America, iu open court. November term. A. 1). 1*76, this:M day 
 
 of December, A. D. 1876, as yet of said term. 
 
 It appearing to the satisfaction of this court, by the oaths of J. L. Arpin and citi/eus 
 of the United States of America, witnesses for that purpose, lirst duly sworn and ex- 
 amined, that GustaveC. Ferret, a native of Switzerland, resided in the United States 
 of America three years next preceding his arriving at the a^e of twenty -one years, 
 and that he has continued to reside iu the United S.'utes to the present time, and has 
 resided within the limits and under the jurisdiction of the United States rive years at 
 least last past, and within the State of California for one year last past : and that dur- 
 ing all of said rive years' time he has behaved as a man of good moral character, 
 attached to the principles of the Constitution of the United States, and well disposed 
 to the good order and happiness of the same; and the said applicant has declared his 
 intention to become a citizen of the United States; aud having now here before, this 
 court taken an oath that he will support the Constitution of the Tinted States <>f 
 America, and that he doth absolutely and entirely renounce aud abjure all allegiance 
 and fidelity to every foreign prince, potentate, state, or sovereignty whatever, aud 
 particularly to the republic of Switzerland: 
 
 It is therefore ordered, adjudged, and decreed that the sail 1 . Cnstave C. IVrret b,-. 
 aud he is hereby, admitted and declared to be a citi/eu of the I'nited States of 
 America. 
 
 H. K. S. O'MKI.VKNY. 
 (.'aunty -I i 
 
 Signature : 
 
 GUSTAVE C. FERRET. 
 
 OFFICE OK THE CLERK OK THE Corxrv Corux OK THE STATE OF CAI.IEOK.NMA, 
 
 In and for the county of Lo* Anyclt*, sn: 
 
 I, A. YV. Fotts, clerk of the county court of ihe State of California, in and for the 
 county of Los Angeles, said court being a court of record, having common-law juris- 
 diction and a clerk and seal, do certify that the above is a true copy of the act of 
 naturalization of Gnstave C. Ferret, with allidavit of witness and applicant attached. 
 as the same appears upon the records of said court now in my ollio-. 
 
 In testimony whereof"! have hereunto set my hand and a Mixed the seal of said court 
 this 14th day of September, in the year of our lord one thousand eight hundred and 
 Hcventv-sev-n, and in the year of our independence the . 
 
 [SEAL.] A. YY. 1'OTTS, Cltrk. 
 
 n.v D. M. ADAMS. Deputy I'lerk. 
 
 UNITED STATES OK AMERICA, State of California : 
 
 In the county court of the county of Los Angeles, county of Los Angeles. BS, 
 
 In the matter of the application of (Jus. C. Ferret to be admitted a citizen of the 
 
 United States. 
 
 .'. L. Arpin. of said county, being duly sworn, testifies and says that he is will ac- 
 quainted with the above-named Gus C. Ferret, and has been so acquainted with him
 
 WIGGINTON VS. P4CHECO. 45 
 
 for tiv<- yeai>. ami that the .said Gas. C Ferret has continually resided within the lim- 
 its and under the jurisdiction of the United States of America for live years last past, 
 ;ind for OIK- year la>t past within t lie State of California : and That during such time he 
 has behaved himself as a man of good moial charac;er, attached to the principles of 
 the Constitution of the United States, and well disposed to the good order and hap- 
 piness of the same. 
 
 Subscribed and sworn to in open court this -,'d day of December, A. D. 1876. 
 
 u..] A. W. POTTS, Clerk. 
 
 STATK or CAI.II OHXIA.('OI//.V of Los Jn<ieh. 
 
 I, Gus. C. Ferret, do solemnly swear that 1 will support the Constitution of the 
 United Mat. >. and I do absolutely and entirely renounce and abjure all allegiance and 
 fidelity to all and every foreign prince, potentate, state, or sovereignty whatever, and 
 particularly to the Republic of Switzerland. 
 
 (.rsTAVK C. PERRET. 
 
 Subscribed and .-worn to in open court this 'Jd day of December, A. D. 1876, before 
 
 me. 
 
 These records show beyond question that this man teas not naturalized 
 until December -, 187(5. His vote must therefore be rejected. 
 
 John Peterson. 
 
 This man procured naturalization papers by fraud. His papers were 
 procured by means of perjured testimony. This is shown by the evi- 
 dence of Peterson himself. (See Record, p. 144.) 
 
 He testifies as follows: 
 
 JOHN Pr.TF.itsox, being called and examined as a witness on behalf of Mr. Pacheco, 
 and being first duly sworn, testified as follows: 
 
 (Miestion. 'Where do you live? Answer. In Red Wood City, Cal. 
 
 <<. How long have you lived here .' A. Four years the 89th of January next. 
 
 i, 1 . Did you vote at the last Presidential and Congressional election on November 7, 
 
 -ir: I did. 
 
 ,'. Where.' A. In Redwood City. San Mateo County. California, 
 o. Who did you vote for ? A. 1 voted for Tilden for President. 
 
 ji. Who diil you vote for for Congressman .' A. I have forgotten his name. Ivoted 
 the Democratic ticket. 
 
 < t ". Was it the straight Democratic ticket .' A. It was. I voted the straight Demo- 
 cratic ticket. 
 
 y. Would you know the name of the Congressman if yon heard it ? A. I think I 
 
 Would. 
 
 O. Was it P. D. Wigginton .'A. Yes. sir. 
 
 '->. When- \\t-re you horn .' A. In Sweden. 
 
 '/. When did you come to the United States to reside f A. In 1868. 
 
 How old were you when you came ? A. I was bom on the 17th of June, 1841. 
 low old were you when you came in 18(38? A. I was 26, going on 27 years. 
 
 (>. Did yon offer to register in Eedwood City before the Presidential election? A. 
 Yes. 
 
 Q. Did you apply for naturali/atiou at Eedwood City f A. Yes. 
 
 ','. When ? A. The day before the election. 
 
 i,'. Did you get naturalized then? A. No, sir. 
 
 Q. Why? State what occurred. A. I had no witnesses there who knew me in Cal- 
 ifornia under age. I was in California in K>~. but did not remain then. 
 
 Q. How did you come, and what was you doing here in 1H58? A. I came in a vessel. 
 
 Q. What was you doing on the vessel f A. I belonged to the ship as one of the crew. 
 
 ',,'. Did you remain on board of her and go away with her ? A. Yes, sir. 
 
 Q. Where did you go to ? A. We went to Newcastle. England. 
 
 ( t >. What was the ship: where did she belong? A. The Alert; Copenhagen, Den- 
 mark. 
 
 Q. Where did yon go to from Newcastle? A. We went back to Denmark. 
 
 <,'. When did you next return to the United Mates? A. To New York, in 1867. 
 
 Q. Did you remain then in the United States, or return ? A. I shipped from New 
 York in 1867, and came to San Francisco in 1868. 
 
 Q. When yon applied for naturalization at Redwood City the day before the last 
 Presidential election, had you first papers I mean yonr declaration of intention? A. 
 No : I did not have them.
 
 46 DIGEST OF ELECTION CASES. 
 
 Q. Did the clerk of the court ask you for them .' A. Yes. sir. 
 
 Q. Did he refuse to naturalize you because you had not your first papers .' A. Yes, 
 sir. 
 
 Q. Wha-t did you then do relative to getting out your papers ? A. Then I went back 
 to my place here in Redwood City, where I had a saloon, and one of my witnesses come 
 along with me to rny saloon, and asked me if I wanted to go down to San Francisco, 
 he would try to get the papers out for me. Then I said I did not care about going to 
 the city if I did uofc get my papers in Redwood City. So he said to me, ' Come along- " : 
 and he started off to San Francisco the day before the election. 
 
 Q. What did you do after you got to San Francisco f A. We went up to the twelfth 
 district court to see if we could get my naturalization papers. When we got there 
 we found we could not get them before half past eleven that evening. 
 
 Q. Did you go to the court at half past eleven o'clock that night ? A. Yes, sir. 
 
 Q. State what was done there. A. That witness I had with me, named John Hauna . 
 he spoke to the judge about getting my naturalization papers. 
 
 Q. Did the clerk swear Hanna as a witness for you? A. Yes, sir. 
 
 Q. What did the judge ask Hanna ? 
 
 (Objected by Mr. Wigginton upon the ground that it is an attempt to show by the 
 witness the record of the twelfth district court of this State, and that the same is 
 irrelevant and secondary evidence.) 
 
 A. He asked Hanna if he knew me in California under age. 
 
 Q. What was Hanna's answer ? 
 
 (Objection same as above.) 
 
 A. He said he knew me in California in 1858. 
 
 .Q. When did you first ever see Hauua ? A. Saw him first in San Francisco, in 1S70 
 or 1871. 
 
 Q. Did you then get your papers from the twelfth district court f A. I did. 
 
 Q. On these papers did you get registered in Redwood City f 
 
 (Objected as secondary.) 
 
 A. I did. 
 
 Q. Who was it that proposed to you to go to San Francisco and get naturalized .' 
 
 (Objection, as immaterial and irrelevant, and further that there is no evidence that 
 he was ever naturalized.) 
 
 A. John Hanna. 
 
 Q. You mean the John Hanna that was the witness .' A. Yes, sir. 
 Cross-examination by Mr. Wigginton : 
 
 Q. Do you know of your own knowledge who was the owner of the vessel on which 
 you came to the United States in 1858? A. His name was Hans Sjonrensen. 
 
 Q. Was he the master of the ship ? A. No ; he was the owner. 
 
 Q. How do you know he was the owner? A. I know by hearing the captain and 
 crew say so. 
 
 Q. When you first came to the United States, where did you land* A. In San 
 Francisco. 
 
 Q. How long did you remain there ? A. About two months or a little more. 
 
 Q. What did you do while you were here ? A. I remained on board the vessel in 
 the harbor. 
 
 Q. When you left San Francisco had you any intention of returning ? A. No, sir. 
 
 Q. When did you first form the intention of residing in and becoming a citizen 
 of the. United States ? A. Since 18G8. 
 
 Q. When you -went before the twelfth district eourt, in San Francisco, and applied 
 for yonr citizen-papers, did yon or did you not know that you were not entitled to 
 them ? A. I did not know whether I was entitled to them or not. 
 
 Q. Did you understand, in making that application, that it was necessary for Haniia 
 to swear that he knew you in California in 1858 ? A. No, sir ; I did not. 
 
 Q. Did you hear Hanna swear that he knew you in Californi, in 1858? A. Yes, sir. 
 
 Q. Did you object when you heard him swear it, or did you remain silent? A. I re- 
 mained silent ; said nothing. 
 
 Q. Who paid your expenses to San Francisco t A. I did. 
 
 Q. To whom, if any one, have yon made a statement of the facts and circumstances 
 under which you procured your citizen-papers ? A. I stated it to Mr. Van Dusen, the 
 attorney here, in the United States district attorney's oifice in San Francisco, some 
 time in November or December of last year. 
 
 Q. Can you swear positively, of your own knowledge, that the name of P. D. Wig- 
 gington was on the ticket which you voted at the election in November, 1876 ? A. 
 No, sir I cannot swear exactly ; it was the straight Democratic ticket, but I did not 
 take particular notice of it. 
 
 Q. Give the name of any one man, or more, that you are sure you voted for in the 
 Presidential election of 1676. A. I voted for Tildeii. That is all I know.
 
 WIGGIXTON VS PACHECO. 47 
 
 (>. Are you ;is sure that you voted for Tildou as you are of anything else you have 
 testified to in this deposition / A. Yes. sir. 
 
 Q. Do you read and write English readily ? A. I can read English, but cannot 
 write it. 
 
 Q. Did you read your rieker before you voted it? A. I looked over it, but did not 
 take particular notice of all that was on it. 
 
 ( t i. Are you sure that Tildeu's name was on it? A. Yes, sir. 
 
 Redirect by Mr. Van Duson : 
 
 Q. Do yon remember of Hanna being tried for perjury in the United States district 
 court last winter ? 
 
 (Objected to as irrelevant and secondary.) 
 
 A. Yes, sir. 
 
 < t >. Were you a witness for the Government in that ca^e .' 
 
 ^Same objection as above.) 
 
 A. Yes. sir. 
 
 ( t i. When you say you voted for Tilden, or that Tilden's name was on the ticket, 
 do you mean yon voted the straight Democratic ticket, and for Democratic electors 
 and Congressman .' 
 
 (Objected to as leading, and being in the nature of a cross-examination of the 
 examination of the defense.) 
 
 A. Yes, sir. 
 
 JOHN PETERSON. 
 
 Now here is a clear, palpable case of procuring fraudulent naturaliza- 
 tion-papers. In the majority report the singular doctrine is asserted 
 that because these papers were'issued by a court of competent jurisdic- 
 tion and were regular on their face, they cannot be ''attacked collat- 
 erally.'' That is to say, if, by means of perjury, a man can commit 
 a fraud upon the court and upon the law, and thereby get his papers, he 
 can get the benefit of that fraud, and when he presents himself as a 
 voter his vote must be received. Just what is meant by the majority 
 by saying that the papers cannot be attacked collaterally is not very 
 clear. We can conceive of nothing that can be meant except that 
 somebody would have to go into court and in a direct proceeding set 
 aside the papers for fraud. We cannot believe that this House will 
 ever indorse such a preposterous doctrine. The rule of law is stated by 
 McCrary, section 21, just the reverse of what is here ruled by the major- 
 ity. Parol evidence is competent to prove the fraud, and when it is 
 proven the vote is rejected. This was clearly an illegal vote for Wig- 
 gintou and must be rejected. 
 
 Thomas 8. Methvin. 
 
 This man voted for Wigginton illegally. He had left the State with 
 his family two or three years before ; he went to Arizona to make it his 
 home, and only returned two or three weeks before the election. That 
 is clear, from the evidence, which is as follows (p. 129, Record) : 
 
 Question. State yourname. age, residence, and occupation. Answer. John Saviers : 
 my age is tifty-tive : I reside at Pleasant Valley, in Ventura County, California ; lam 
 a farmer by occupation. 
 
 Q. Did you act in any official capacity in Pleasant Valley precinct at the last No- 
 vember election: and, if so. what .'A. I was one of the judges of election. 
 
 Q. Did you at that time know Thomas Scott Moth win, or Methvin ? A. I did know 
 a man by that name. 
 
 Q. Did he vote at that election ? A. Yes. sir. 
 
 Q. How long had he resided in this State, and in Pleasant Valley precinct, imme- 
 diately preceding the day of election ? A. To my own knowledge it could not have 
 been more than twenty days. I cannot say positively whether it was twenty, forty, 
 or sixty days : but 1 don't think that it was over twenty days. 
 
 Q. Do you mean twenty days in the precinct or in the State .' A. I mean both. 
 
 (f. Do you know of Methvin residing in the State before that time; and, if so, 
 whether he left the State, and where he went to, if he did leave the State, and about
 
 48 DIGEST OF ELECTION CASES. 
 
 what time be left ? Tell all about it in your own way. A. In the summer of 1-74 
 or 1^75 he left To go to Arizona to make that bis home, so be told me before he went. 
 Previous to his leaving for Arizona he must have been in that precinct for three or 
 four years. 
 
 Q. 'Did he make any statement, in answer to his vote being challenged, about how 
 long he had been back in this State from Arizona : and, if so, was it by affidavit or 
 otherwise ? A. He made an affidavit, claiming a right to vote upon the ground that 
 he reserved the right to return. 
 
 Q. In that affidavit did he state that it was his intention to return to this State 
 and make it his home at the time that he left the State to go to Arizona .' A. He 
 did not. 
 
 Q. When he left this State to go to Arizona did he take his property with him or 
 did he leave it at his former home in Pleasant Valley ? A. He left no property that 
 I know anything about. 
 
 Q. Had he any home or homestead or house in Pleasant Valley during the time that 
 he was in Arizona ? A. No, sir. 
 
 Q. Did he move his family to Arizona when he went himself? A. He started with 
 his family, bnt I do not know where he took them to. 
 
 Q. Did he take up any laud or purchase any while lie was in Arizona ? A. Person- 
 ally, I don't know. 
 
 Q. Did you hear him, or any one that was in Arizona with him, say anything about 
 that? If so, what? 
 
 (Question objected to on the part of contestant, on the ground, 1st. that the answer 
 sought would be only hearsay; &1, that in regard to title to real estate parol evidence 
 is inadmissible; 3d, because the evidence is immaterial and irrelevant.) 
 
 A. He said himself on the examination respecting his right to vote that he had not 
 taken up any land or claim. Mr. Hicks the next day after the election told me that 
 he would swear that Mr. Methviu had located a mining-claim, and that he, Methviu, 
 could not leave Arizona till the return of some $350 from San Francisco as pay for his 
 claim. 
 
 Q. Did you ever hear Methvin state what he was doing in Arizona during the time 
 that he was there .' If so, state what he said about it. A. I don't recollect that he 
 ever did tell me what he followed in Arizona. 
 
 Cross-examination : 
 
 Q. This statement made to you by Mr. Hicks about Methvin having a mining-claim 
 was made in private conversation, was it not ? A. Yes, it was. 
 
 Q. Was Mr. Methvin present at this conversation when it took place ? A. He was 
 not. 
 
 Q. Do you know of your knowledge what year, month, and day of the momh, that 
 Mr. Methviu left this State, if he left it at all? A. I do't know certain the day of 
 the month, nor too certain the year, but it was over one year from the time he left- 
 till he returned, to the best ot my knowledge. 
 
 Q. Can you state of your own knowledge that when he left Hueueme Township, as 
 you have stated, that he went to Arizona ! A. He told me that he was going to Ari- 
 zona. When he came back he said he had been to Arizona. 
 
 Q. Did Mr. Methvin not state to you that he went to Arizona for temporary purposes 
 only, and not with the intention of abandoning his residence in Huenenie Township 
 or precinct, Ventura County, California, and that he always considered that his home, 
 or words to that effect ? A. He never told me anything, but on the day of the, elec- 
 tion he stated to the board that he reserved a right to return to California if he 
 wished to. 
 
 Q. Was his vote challenged upon the ground that he was not a resident of Pleasant 
 Valley precinct f A. Yes, sir ; nor of this State. He was challenged on both grounds. 
 
 Q. Was his vote received by the board of election ? A. It was. 
 
 Redirect : 
 
 Q. Did he not refuse to swear that when he left the State to go to Arizona that it 
 was his intention to return to this State ? A. He refused to answer the question, only 
 that he reserved a right to return. 
 
 Q. When he told you that he was about to go to Arizona, give, as near as you can. 
 the words that he used about making Arizona his home. 
 
 (Objected to on the ground that this is a matter already inquired into in the direct 
 examination, and not in response to any new matter inquired into in the cross-exami- 
 nation.) 
 
 A. He told me that he had no home here for him or family, and that Arizona was 
 the last place that he knew where he could get Government land to get him or mak- 
 ing him a home. 
 
 Q. Was he a Democrat or a Republican before and at the time that he voted at the 
 last November election? A. He alwavs claimed to be a Democrat.
 
 WIGGINTON VS. PACHECO. 49 
 
 Q. Do you know whether he voted for Pacheco or Wigginton at said election ? A. 
 I do not know who he voted for. 
 
 JOHN SAYIER. 
 
 JOHN W. SEBASTIAN testifies (p. 131) : 
 
 Question. State your name, age, residence, and occupation. Answer. My name is 
 John William Sebastian : my age is 45; I reside in Pleasant Valley, Ventura County, 
 California ; I am a blacksmith by occupation. 
 
 Q. Do you know Thomas Methvin, late of Pleasant Valley precinct? A. I do. 
 
 Q. Did he vote in that precinct at the last November election ? A. He did. 
 
 Q. About how long had he resided in that precinct immediately preceding said elec- 
 tion * A. I am not sure how long he resided there before the election. 
 
 Q. About how long before the election had you seen him there? A. Three or four 
 weeks. 
 
 Q. Do you know anything about where he came from when he came there, either 
 from his own say-so or otherwise ? If so, please state all about it. A. I heard others 
 say that he came from Arizona ; I did not hear him say anything about it. 
 
 Q. How long had you resided in that precinct or neighborhood before the last No- 
 vember election ? A. About ten mouths, I guess. 
 
 Q. At the time of the November election, was said Methvin a Democrat or a Re- 
 publican? A. I could not tell yon. 
 
 Q. Did you not, with others, take quite an active part in insisting or urging his 
 right to vote at said election, when his vote was challenged ? A. I knew not any- 
 thing about his vote being challenged till I see him reaching his ticket to the judges 
 or inspector, and then there was some talk about his having a right to vote or not. 
 I said I thought that he had a right to vote. 
 
 Q. Why did you say that "you thought he had a right to vote"? A. Because I 
 had heen in his same situation. I have voted before that. Not at that election. 
 
 Q. Are you not a Democrat, and were you not working actively for the success of 
 the Democratic ticket at that election ? 
 
 (Objected to on the ground that it is immaterial whether the witness was a Repub- 
 lican or a Democrat.) 
 
 A. I am and I Avas. 
 
 Q. And did you not urge Methvin to vote at that election? A. I did not. 
 
 Q. Did you not know what ticket Methvin was voting or trying to vote at that 
 election ? A. I did not at the time. I always supposed him to be a sort of a half- way 
 man, and I was afraid to tackle him for fear I would hurt myself. 
 
 Q. You say you did not at the time know how he would vote ; have you learned 
 since how he voted ? A. I have not. 
 
 Q. Then what did you mean by the remark " at the time," in your former answer ? 
 A. Well, at the time I was afraid that he would go against my party, therefore I was 
 afraid to say anything to him. 
 
 Q. If you was working actively, as you say, for the success of the Democratic ticket 
 at said electiou, why did you so earnestly urge before the judges that he had a right 
 to vote when you was afraid that he would vote against your party? A. Because I 
 believe every citizen has a right to vote. 
 
 Q. Was that the only reason? A. Yes. 
 
 Q. Had you ever known Methvin before he come there some three or fonr weeks 
 before that ? A. Yes, sir. 
 
 Q. How long had you known him? A. Three or four years. 
 
 Q. Where had you known him? A. At Pleasant Valley. 
 
 Q. And don't you know that he was a Democrat? 
 
 (Objected to this and other questions which have been asked this witness, on the 
 ground that They are leading and in the nature of cross-examination.) 
 
 A. No ; I don't. 
 
 Cross-examination : 
 
 Q. Is it not usual, or of frequent occurrence with citizens of this county, to make 
 trips to Arizona for the purpose of prospecting and locating mining-claims, without 
 any intention of abandoning their homes in this State? 
 
 (Objected to as no cross-examination of anything that the witness has testified to 
 in his direct examination.) 
 
 A. I have known of several that have left this part and came back, and are living 
 here now. 
 
 Q. Do you know, of your own knowledge, that Thomas Methvin was not in this 
 State and in Pleasant Valley precinct more than thirty days before the day of the 
 November election? A. I do not know exactly the time. I think that he was here 
 about three or four weeks before the election. 
 
 Q. So far as you know, might he not have been in this State, county, and precinct 
 six weeks before the election ? A. I don't know: could not say. 
 
 H. Mis. 58 4
 
 50 DIGEST OF ELECTION CASES. 
 
 Redirect : 
 
 Q. Is it usual or of customary occurrence for citizens of this county to declare 
 opeuly to their neighbors that they are going to move to Arizona for the purpose of 
 making it their home, and immediately gather all their property and their families 
 and go to Arizona with the same, and go into business there and remain there for a 
 year or two, and not have the intention of abandoning their residence in this State, 
 and acquiring a residence in the State of Arizona; have you known several such; if 
 so, who are thev? A. I have not known anv such. 
 
 J. W. SEBASTIAN. 
 
 Deposition of Albert Sidney Clark. 
 
 Question. State your name, age, place of residence, and occupation ? Answer. My 
 name is Albert Sidney Clark; my age is 28 ; I reside in Pleasant Valley precinct, in 
 the county of Ventura; I am a merchant by occupation. 
 
 Q. Were you at the polls of election held in Pleasant Valley precinct, in this county, 
 in last November? A. Yes; I was. 
 
 Q. Do you know Thomas Methvin, late of that precinct? A. I do. 
 
 Q. Did he vote at said election in that precinct? A. Yes; I think he did. 
 
 Q. How long had you resided in that precinct immediately prior to said election ? 
 A. I don't know how long. 
 
 Q. How long had he resided in that precinct after the election ? A. I could not say 
 how long. I could say if I had my little book, because he has purchased some little 
 things in the store which I keep. 
 
 Q. Well, give your best recollection whether it was a week, a month, or longer? 
 A. I could not say ; such things as that I pay very little attention to. I could not say 
 what month, what week, or day he left after the election. 
 
 Q. About how far did he reside from your store during his stay there at that 
 time? A. He lived awhile within about a mile of the store, and afterward he moved 
 to a place about three and a half or four miles from my store. That was the place 
 from where he moved away the last time. 
 
 Q. Were you not a Democrat, and working quite actively for the success of the 
 Democratic ticket in that precinct in the last November election ? A. I was and did. 
 
 Q. Did you know that Methvin's vote was challenged, and that there was quite a 
 contest before the board of election between the Republicans and Democrats as to 
 whether Methvin should be allowed to vote or not ? A. I heard some discussion 
 among the members of the board upon his vote being challenged. They took his oath, 
 and he swore that he only went to Arizona for a temporary purpose. That is as near 
 as I can remember. The board, after swearing him, took his vote. 
 
 Q. Was there not considerable discussion before the board by the Republicans and 
 Democrats who were not members of the board, and did not each party urge their 
 claims the Republicans that he had no right to vote, and the Democrats that he had 
 a right to vote ? A. Well, there was a discussion talk. The Democrats claimed that 
 he had a right to vote, and that he had not lost his residence by simply being absent 
 temporarily. The Republicans insisted that he had no right to vote. I think that 
 the most of the talk was done by a man who had not known Mr. Methvin previous to 
 his going to Arizona. 
 
 Q. Were you not one of -the Democrats that insisted that he had a right to vote? 
 A. No. 
 
 Q. Was he a Democrat? A. I don't know that I could swear that he was a Demo- 
 crat. He has voted the Democratic ticket. 
 
 Q. Didn't you believe him to be a Democrat at that time? A. I could not say; 
 that is a question that no man can tell. 
 
 Q. Didn't you furnish him the ticket or ballot for that election ? A. I furnished all 
 the Democratic tickets that were voted that day. 
 
 Q. Do you know what ticket he voted that day? A. I do not, positively. 
 
 Q. Have you any reason to know, either positively or otherwise; if so, what are 
 they T A. No ; I don't know whether I have. 
 
 Q. Have you learned since that day how he voted, in any way? 
 
 (Question objected as not proper in form and hearsay in its character.) 
 
 A. I have not had any conversation with him with regard to it. 
 
 Q. Have you learned in any other way ? A. I never made any inquiry. 
 
 This man had left the State to make his home in Arizona. He had 
 no present purpose of returning to California. He clearly had lost his 
 residence in that State, and did not return more than 30 days before the 
 election.
 
 WIGGINTON VS. PACHECO. 51 
 
 The following is the law of the State, sec. 1239, subdivisions 6 and 7 
 
 6. If a person remove to another State with the intention of making it his residence, 
 he loses his residence in this State. 
 
 7 . If a person remove to another State with the intention of remaining there for an 
 indefinite time, and as a place of present residence, he loses his residence in this State, 
 notwithstanding he entertains an intention of returning at some future period. 
 
 It is quite clear that this man voted illegally for Wigginton, and his 
 vote should be rejected. 
 
 It is conceded by the majority that in La Graciosa precinct one vote 
 was counted for Wigginton that should have been counted for Pacheco. 
 In this we concur. 
 
 CONCLUSION. 
 
 The result of the foregoing is as follows: 
 
 By the returns Pacheco has 19, 104 
 
 Add on account of La Graciosa 1 
 
 19, 105 
 Deduct eight illegal votes 8 
 
 19,097 
 
 Wiggintou by return has '. 19, 103 
 
 Deduct on account of La Graciosa. . 1 
 
 19,102 
 Deduct illegal votes as follows, four of which are conceded by majority 11 
 
 19,091 
 Pacheco's majority 6 
 
 We therefore recommend the adoption of the following resolutions : 
 Resolved, That Romualdo Pacheco is entitled to a seat in this House 
 as a Representative in the Forty -fifth Congress from the fourth Con- 
 gressional district of California. 
 
 Resolved, That Peter D. Wigginton is not entitled to a seat in this 
 House as a Eepresentative to the Forty-fifth Congress from the fourth 
 Congressional district of California. 
 
 JNO. T. WAIT. 
 FRANK HISCOCK. 
 H. PRICE. 
 J. M. THORNBURGH. 
 
 I concur in the report of the minority as to Waterman and Scott. I 
 am clearly of opinion that they were legal voters, and that their votes 
 should be counted for Pacheco, the contestee. 
 
 E. JNO. ELLIS, 
 . Member of Committee. 
 
 I concur in the report of the minority that the vote of Charles Gil- 
 bert should not be deducted from Pacheco, the evideuce being insuffi- 
 cient to show that his vote was cast for Pacheco. 
 
 MILTON A. CANDLER,
 
 52 DIGEST OF ELECTION CASES. 
 
 \ 
 
 THOMAS M. PATTERSON vs. JAMES B. BEI/FORD. 
 
 THE STATE OF COLORADO. 
 
 This case arises out of the two elections for Representative in Congress from Colo- 
 rado; the contestee claiming to have been elected at an election held October 3, 
 1876, and the contestant on November 7, 1876. The question being as to which 
 of those days was the day prescribed by law for holding such election. 
 
 Held, That the act of Congress of March 3, 1875, which modifies section 25 Revised 
 Statutes so as not to apply to any State whose constitution must be amended in 
 order to effect a change of the election of State officers, in no way related to Col- 
 orado. 
 
 The provisions of law which fix the time and place of holding elections are manda- 
 tory; and the election held in Colorado on November 7, 1876, having been con- 
 ducted in accordance with the general election laws of the State, and on the 
 day prescribed by law for holding such elections, was the only legal election for 
 Representative in Congress. 
 
 The House adopted the majority report December 13, 1877. 
 Thomas M. Patterson sworn in. 
 
 DECEMBER 6> 1877. Mr. JOHN T. HARRIS, from the Committee on 
 Elections, submitted the following 
 
 REPORT: 
 
 The Committee on Elections, to whom ica# referred the subjects embraced 
 in the following resolution of the House, namely 
 
 Resolved, That the certificate presented by James B. Belford and the certified ab- 
 stracts of votes cast upon the 7th day of November, A. D. 1876, for Representative to 
 the Forty-fifth Congress, and accompanying papers, presented by Thomas M. Patter- 
 son, upon which each claims the office of Representative to the Forty-fifth Congress 
 of the United States from the State of Colorado, be referred to the Committee on 
 Elections, to be appointed hereafter, with instructions to said committee to report 
 either as to the prima facie right or final right of said claimants, as the committee 
 shall deem proper, and that neither claimant be sworn in until said committee 
 reports 
 
 submit the following report: 
 
 The right of each of the parties to the contest, in this case, turns 
 upon the question as to whether the 3d day of October or the 7th day 
 of November, 1876, was the day prescribed by law for holding the elec- 
 tion in the State of Colorado for a Representative in this, the Forty- 
 fifth Congress. 
 
 James B. Belford claims a seat in this House by virtue of an election 
 in the State of Colorado on the 3d day of October, 1876, and Thomas 
 M. Patterson claims a seat by virtue of an election held in said State on 
 the 7th day of November thereafter. 
 
 The respective claimants appeared before the committee and sub- 
 mitted able and exhaustive arguments upon the facts and the legal 
 questions involved. 
 
 Your committee are relieved from the necessity of passing upon many 
 of the facts involved in the case by the following- .stipulation, sfgned by
 
 PATTERSON VS. BELFORD. 53 
 
 the respective parties, and filed as a part of the record iii the case 
 (page 7) : 
 
 Stipulation as to roles cast at November election for Representative to the Forty-fifth Con- 
 gress. 
 
 In the matter of Representative to the Forty-fifth Congress from the State of Colo- 
 rado. 
 
 THOMAS M. PATTERSON ) 
 
 vs. > Claim ants. 
 
 JAMES B. BELFORD. ) 
 
 It is hereby mutually agreed and stipulated between the said Thomas M. Patterson, 
 of the one part, and the said James B. Belford, of the other, that if laws were in force 
 and by virtue of which an election might have been legally held in the State of Colo- 
 rado npon the 7th day of November, A. D. 1876, for Representative to the Forty-fifth 
 Congress from said State, then and in that erent the following number of rotes werelegally 
 cast by qualified electors, at an election held in said State upon the said7th day of November, 
 A. D. 1876 for said Representatire to the Forty-fifth Congress, and which votes were 
 divided among the persons respectively voted for upon said day, for said office, as 
 follows : 
 
 Whole number of votes cast for Representative to the Forty-fifthCongress, thirty- 
 eight hundred and twenty-nine (3,8<J9), and of which 
 
 Thomas M. Patterson received thirty-five hundred and eighty (3,580). 
 
 James B. Belford, one hundred and seventy-two (172). 
 
 Scattering, seventy-seven (77). 
 
 And in view of the foregoing, it is further stipulated and agreed that all registry- 
 lists and poll-books of said election, and the returns and abstracts of votes cast thereat, 
 and which accompany the testimony in said case, and are produced by the said Thomas 
 M. Patterson for the purpose of establishing the number of votes so cast at the said 
 election, may be omitted in the piiutiug of the said testimony, the statement concern- 
 ing said votes hereinbefore made to be taken upon the condition first hereinbefore 
 mentioned by the House of Representatives and the Committee on Elections of said 
 House as a full, true, and correct account of the same. 
 
 In witness whereof we have hereunto affixed our hands this 2d day of November, 
 A. D. 
 
 THOMAS M. PATTERSON. 
 JAMES B. BELFORD. 
 
 It is also ad mil ted that Mr. Belford received a majority of the votes 
 cast on the 3d day of October, and if that were the day prescribed by 
 law for holding the election for Representative in the Forty-fifth Con- 
 gress from Colorado, then Mr. Belford is entitled to the seat. 
 
 The question has also been raised and considered by the committee 
 as to whether either of said days was the day prescribed by law, and 
 whether any legal election has been held in said State for Represent- 
 ative in the Forty-fifth Congress. 
 
 The following facts are established beyond controversy: 
 
 1. That the secretary of state did, on the 3Lst day of August, 1876, 
 issue his proclamation (printed Record, page 138) notifying the people 
 that then- would be an election on the 3d day of October, 1876, for State 
 officers andfor "one Representative for the unexpired term, Forty-fourth 
 Congress"; that this proclamation made no mention of the election of a 
 Representative in the Forty-fifth Congress; and that the sheriffs of the 
 several counties of the State promulgated like proclamations and notices. 
 
 2. That on the 14th day of September, 1876, the secretary of state 
 issued his proclamation (printed Record, page L'.">4) giving notice of an 
 election to be held November 7, 1876, for a Representative from the 
 State at large for the Forty-fifth Congress; that no other officers were 
 to be elected at such election, and that the sheriff's of the several coun- 
 ties issued like notices in their several count!' 
 
 3. That these proclamations by the secretary of state and the sheriffs
 
 54 DIGEST OF ELECTION CASES. 
 
 of the several counties were the only notices published by legal author- 
 ity, or otherwise, relating to said elections until after the election on 
 the 3d day of October. 
 
 4. That the names of both contestant and contestee were printed gen- 
 erally upon the tickets used at the election on the 3d day of October 
 for both the Forty-fourth Congress (unexpired term) and the Forty fifth 
 Congress; but there was no agreement between the respective claim- 
 ants or their friends as to whether the 3d day of October was the day 
 prescribed by law for holding the election for a Representative in the 
 Forty-fifth Congress. 
 
 5. That on the 10th day of October, one week after the election on the 
 3d day of that month, J. C. Wilson, chairman of a State political com- 
 mittee favoring the election of Mr. Belford, issued a\v address (Record, 
 pp. 45-47) calling on the friends of Mr. Belford to pr epare by registra- 
 tion and otherwise for the election on the 7th day of November. 
 
 6. That on the 16th day of October the secretary of state issued a 
 proclamation withdrawing his proclamation of September 14, which 
 gave notice of the election on the 7th November. 
 
 7. That on the 14th day of October, the said J. C. Wilson, on behalf of 
 Mr. Belford, withdrew his name from any further candidacy for Con- 
 gress, claiming that he had been elected on the 3d day of October to 
 the Forty-fifth Congress, as well as to the unexpired term of the Forty- 
 fourth Congress, and ad vised Mr. Belford's friends to take no part what- 
 ever in the election on the 7th day of November. 
 
 8. That the votes cast at the election on the 7th day of November 
 were counted by the proper officers, in eleven counties, and transmitted 
 to the secretary of state, but were not canvassed by that officer, or by 
 any State can vassing-board ; that in the other fifteen counties of the 
 State no abstracts of the votes cast were sent to the secretary of state 
 by the ouuty clerks; but the stipulation filed by the parties to the con- 
 test, and above set forth, shows the true result of the votes actually 
 cast in the whole State. 
 
 There are no material facts in the case that are disputed. 
 
 Your committee are of opinion that, so far as the facts are concerned, 
 the election on the 3d of October, and also that on the 7th of Novem- 
 ber, were sufficiently regular to constitute a valid election of a Repre- 
 sentative in the Forty-fifth Congress from the State of Colorado; and 
 the only question about which there can beany doubt is, as to which of 
 those days was the day prescribed by law for holding such election. 
 
 There was no notice given for holding an election on the 3d day of 
 October for a member of the Forty-fifth Congress. But the law is well 
 settled that where the time and place for holding an election are fixed 
 by statute, any voter has a right to take notice of the law, and to de- 
 posit his ballot at the time and place appointed, notwithstanding the 
 officer, whose duty it is to give notice of the election, has failed in that 
 duty. (Cooley, Constitutional Limitations, 603; McCrary on Elections, 
 sec. 118.) There was no canvass of the votes cast on the 7th day of 
 November by the State canvassing-board, but Mr. Patterson produces 
 certified copies of the abstracts of the votes which are on file in the 
 offi( e of the secretary of state of Colorado, and also proof of the number 
 of votes cast in tin- several counties of the State. Nothing is better 
 settled than this, that the failure of a board of canvassers to canvass 
 the votes and declare the result does not invalidate an election other- 
 wise regular and valid. 
 
 The important and controlling question in the case is, therefore, this: 
 Whether the 3d day of October or the 7th day of November was the
 
 PATTERSON VS. BELFORD. 55 
 
 time prescribed by law for holding the election for a Representative from 
 Colorado in the Forty-fifth Congress. 
 
 Upon this point your committee invite attention to the following pro- 
 visions of law and their proper construction. 
 
 1. THE ACTS OF CONGRESS. 
 
 The twenty -fifth section of the Revised Statutes is as follows: 
 
 The Tuesday next after the first Monday iu November, in the year eighteen hundred 
 and seventy-six, is established as the day, in each of the States and Territories of the 
 United States, for the election of Representatives and Delegates to the Forty-fifth 
 Congress; and the Tuesday next after the first Monday in November, in every second, 
 year thereafter, is established as the day for the election, in each of said States and 
 Territories, of Representatives and Delegates to Congress commencing on the fourth 
 day of March next thereafter. 
 
 Your committee are of the opinion that the twenty-sixth section, of 
 the Revised Statutes, in reference to the filling of vacancies in Con- 
 gress, has no application to the case of the election of the first Repre- 
 sentative in Congress to which any new State may be entitled, and 
 that the first election, if for an unexpired term, is not in any sense the 
 filling of a vacancy, as provided for in said twenty-sixth section of the 
 Revised Statutes. 
 
 Your committee are also of the opinion that the act of March 3, 1875, 
 which modified the twenty-fifth section of the Revised Statutes so as 
 not to apply to any State whose constitution must be amended in order 
 to effect a change of the election of State officers in such States, in no 
 way related to the State of Colorado. 
 
 2. THE ENABLING ACT. 
 
 If Colorado has been exempted from the operations of the twenty- 
 fifth section of the Revised Statutes, such exemption results from the 
 sixth section of the act entitled "An act to enable the people of Colo- 
 rado to frame a constitution and State government and for the admis- 
 sion of such State into the Union on an equal footing with the original 
 States," approved March 3, 1875. The sixth section of the said act is 
 as follows : 
 
 That until the next general census, said State shall be entitled to one Represent- 
 ative in the House of Representatives of the United States, which Representative, 
 together with the governor and State and other officers provided for in said constitu- 
 tion, shall be elected on a day subsequent to the adoption of the constitution, and to 
 be fixed by said constitutional convention; and until such State officers are elected 
 and qualified under the provisions of the constitution, the Territorial officers shall 
 continue to discharge the duties of their respective offices. 
 
 A similar provision was contained in the enabling act of Nevada and 
 other States. The sixth section of the Nevada act, approved March 21, 
 1864, is as follows : 
 
 SEC. 6. And be it further enacted, That until the next general census shall be taken, 
 said State of Nevada shall be entitled to one Representative in the House of Repre- 
 sentatives of the United States, which Representative, together with the governor and 
 State and other officers provided for in said constitution, may be elected on the same 
 day a vote is taken for or against the proposed constitution and State government. 
 
 It is clear and unmistakable that this section refers only to the first 
 election to be held in the State, and that the Representative in Con- 
 gress to be elected at that time was only to be elected for a constitu- 
 tional term, and not for the whole period of the decade until the next 
 general census. The intention of Congress in the case of Nevada was
 
 56 DIGEST OF ELECTION CASES. 
 
 evidently to provide for the election at the first election of the member 
 of Congress to which the State might then be entitled under the con- 
 stitution and laws. 
 
 A similar provision in the Colorado act should be construed in like 
 manner, unless there is something in the text or context which warrants 
 a different construction. 
 
 A careful analysis of the sixth section of the Colorado act is necessary 
 to a clear understanding of its meaning and scope : 
 
 That until the next general census, said State shall be entitled to one Representative in the 
 House of Representatives of the United States, 
 
 This language evidently refers only to the number of Represent- 
 atives to which the State is to be entitled until the next general census 
 one Eepresentative, as distinguished from two or more. 
 
 The words " which Representative" evidently refer to the one Repre- 
 sentative which the State is entitled to elect at the first election. In 
 the Nevada act this construction will not be disputed, and was actually 
 carried into effect by the action of Congress and the people of that State. 
 The language of the Nevada and the Colorado acts is precisely the same 
 on this point, and a construction which applied to the one applies 
 equally to the other. If it be contended that the words " which Rep- 
 resentative" referred to the Representative to which the State was en- 
 titled until the next general census, the provision would be unconsti- 
 tutional and void ; for the Constitution of the United States (Art. I, 
 sec. 2) provides that 
 
 The House of Representatives shall be composed of members chosen every second 
 year by the people of the several States. 
 
 Hence it cannot be supposed that Congress intended to authorize the 
 people of Colorado to do an unconstitutional thing ; namely, to elect a 
 Representative for more than two years. 
 
 And if such had even been the plain language of the section, it would 
 be good only to the extent of its constitutionality; that is, for the first 
 term, or part of a term, that might be filled at the first election of State 
 officers. 
 
 Let us proceed further : 
 
 Which Representative, together with the governor and State and other officer 8 provided for in 
 said constitution, xhall be elected on a day subsequent to the adoption of the constitution, and 
 to be fixed by said constitutional convention. 
 
 It is evident that the day to be fixed by the constitutional convention 
 was that upon which the first State officers were to be elected; for the 
 subsequent part of the section leaves no doubt upon the point : 
 
 And until such Mate officers are elected and qualijitd under the provisions of the consti- 
 tution, the Territorial officers shall continue to discharge the duties of their respective offices. 
 
 The words " such State officers" refer to the State officers mentioned 
 iq the first part of the section, and it is absurd to suppose that the 
 Territorial officers should hold office after the first officers elected un- 
 der the new State constitution should be elected and qualified. The sec- 
 tion is relieved from all doubt ou this point. Hence the election-day 
 which Congress authorized the constitutional convention to fix was tho 
 day upon which the first set of State officers of the new State were to 
 be elected, and it was upon that same day that the one Representative 
 in Congress to which the State might be entitled was to be elected, for 
 the words "which Representative" and the words " the governor and 
 State and other officers" all relate alike to the phrase "shall be elected 
 on a day subsequent to the adoption of the constitution, and to be fixed 
 by said constitutional convention."
 
 PATTERSON VS. BELFORD. 57 
 
 3. THE PROVISION OF THE CONVENTION. 
 
 The constitutional convention of Colorado evidently construed the 
 sixth section of the enabling act as only authorizing it to fix the time 
 for holding the first election of a Representative in Congress. The pro- 
 vision of the constitution of Colorado on this subject is as follows: 
 
 One Representative in the Congress of the United States shall be elected from the 
 State at large, at the first election under the constitution, and thereafter at such 
 times and places and in such manner as may be prescribed by law. (Sec. 44, Art. 5.) 
 
 If it were constitutional for Congress to confer upon the Colorado 
 convention the power to fix the time for holding Congressional elections, 
 and if Congress had actually authorized the convention of Colorado to 
 do so, yet the convention failed to fix a time, except for the first election. 
 Thereafter the election was to be held " at such times and places and in 
 such manner as may be prescribed by law." It will not be contended 
 by any one that the mere authorizing of the constitutional convention to 
 fix the time for holding Congressional elections actually repealed the 
 time already fixed by Congress without the constitutional convention 
 having exercised the authority conferred upon it. A power of attorney 
 authorizing an agent to sell certain lands, does not transfer the title 
 from the principal to the agent; and-if the agent fails to make the sale 
 which he was authorize* 1 to make, there has never been a ehange of 
 ownership. So if Congress could confer upon any other body power to 
 repeal an act of Congress, in its discretion, and if such body should fail, 
 or refuse to make the repeal, the act would continue in force, just as if 
 the authority had not been given. 
 
 4. REPEALS BY IMPLICATION. 
 
 If section G of the enabling act did work a repeal of the twenty- 
 fifth section of the Re vised Statutes, such effect can only be given 
 to it by implication. But the well established rule of construction is 
 this, that one statute is not to be construed as the repeal of another if 
 it be possible to reconcile the two together. (McCoul -vs. Smith, 1 Black, 
 459.) And the Supreme Court has also held that li a repeal by implica- 
 tion is not favored ; the leanings of the courts is against the doctrine, if 
 it be possible' to reconcile the two acts of the legislature together." (1 
 Black, U. S. E., 470.) " Before there is a repeal by implication there 
 must be such repugnancy that the two statutes cannot stand together 
 or be consistently reconciled." (Marlot vs. Lawrence, 1 Blatchford, Ct. 
 Ct., 608.) See, also, Mr. Justice Story in Wood vs. The United States 
 (15, Peters, 363), where this doctine is clearly stated and cogently applied 
 to a similar case of construction. It will not be pretended that there is 
 a positive repugnance between the sixth section of the enabling act and 
 the twenty-fifth section of the Revised Statutes. The two sections can 
 stand together and be consistently reconciled. It is not only possible 
 to reconcile the two sections, but it is only by "an ingenious course of 
 argument" that any repugnance is made possible. 
 
 .". A LAW OF CONGRESS THE SUPREME LAW OF THE LAND. 
 
 From the foregoing it will appear that the twenty-fifth section of the 
 Revised Statutes, which fixed the Tuesday next after the first Monday 
 in November, 187(>, as the day for electing Representatives to the Forty- 
 fifth Congress in all the States of the Union, was not repealed as to
 
 58 DIGEST OF ELECTION CASES. 
 
 Colorado by the sixth section of the enabling act, or ill pursuance 
 thereof. Congress having, in the exercise of its constitutional power, 
 fixed the time for holding the election for Representatives in the Forty- 
 fifth Congress in all the States, from the moment of the passage of the 
 act of Congress it became and was engrafted upon the statutes of 
 every State in the Union, and it required no auxiliary State legisla- 
 tion to give effect to the national statute. But the election laws of the 
 several States which fixed the places and prescribed the manner of 
 such elections were not affected, altered, or repealed ; and the national 
 statute fixing the time and the State statutes fixing the places and 
 prescribing the manner of holding the Congressional elections, formed 
 a complete election machinery for the election of Representatives in 
 Congress. 
 
 6. ELECTION-LAWS OF COLORADO. 
 
 The schedule to the Colorado constitution (section 1) provides that all 
 laws in force in Colorado at the adoption of the constitution should re- 
 main in force until altered or repealed by the legislature. It is- not dis- 
 puted that there was a well-defined and perfect code of election-laws in 
 force in Colorado at the time of the adoption of the constitution. In 
 pursuance of these laws, the State election and the election for Repre- 
 sentative in Congress for the unexpired term of the Forty-fourth Con- 
 gress were held on the 3d day of October, 1876, and Mr. Belford does not 
 question the validity of such laws, for he claims his own election on the 
 3d of October, 1876, to this Congress, by virtue of an election held in 
 pursuance thereof. These State laws provided fully for the places and 
 prescribed the manner in which "all general and special elections " 
 should be held in the State. There were, then, in force in the State of 
 Colorado, on the 7th day of November, 1876, laws providing a full, com- 
 plete, and perfect election machinery for electing a Representative to 
 the Forty-fifth Congress the time fixed by Congress, and the places 
 and manner provided by the State statutes. 
 
 7. LIGHT VOTE POLLED. 
 
 Objection has been made to the seating of Mr. Patterson, upon the 
 ground that there was a light vote polled at the November election, 
 compared with the vote at the October election. But Mr. Belford can- 
 not complain of this, nor can his political supporters. For his name 
 was withdrawn from the canvass three weeks before the November elec- 
 tion, and his supporters were advised not to participate in the election. 
 The absence of a contest would naturally result in a light vote. At the 
 recent election for governor and other State officers in the State of Vir- 
 ginia, there were polled in the city of Richmond less than two thousand 
 votes out of an aggregate voting population of thirteen thousand. 
 There was no contest between opposing forces, and a light vote was the 
 result. But no one will seriously contend that this impaired, in the 
 slightest degree, the validity of the election. The law is well settled on 
 this point. Mr. McCrary, in his work on the law of elections, states the 
 rule thus (section 448) : 
 
 If an election is held according to law, ami a fair opportunity is presented to all 
 voters to participate, those who do not vote are bound by the result. 
 
 In the case of Rex vs. Munday (2 Couper, 238), Lord Mansfield, in 
 delivering the opinion of the court, said : 
 
 Upon the election of a member of Parliament, where the electors must proceed to 
 an election because they cannot stop for that day to defer it to another time, there 
 must be a candidate or candidates : and in that case there is no way of defeat iny the flf- 
 tion of one candidate proposed but bi/ rot iny for anothtr.
 
 PATTERSON VS. BELFORD. 5 
 
 In the case of The Commonwealth vs. Read (Brightly's Election Cases, 
 130-1), this rule is recognized to the fullest extent. In this case it was 
 the duty of the board of county commissioners, under the statute, to elect 
 a county treasurer. The board consisted of twenty members, all of 
 whom were present, but a controversy arose among them as to the man- 
 ner of voting, whether viva voce or by ballot, and only one of their num- 
 ber, Abraham Miller, voted by ballot, while the others voted viva voce. 
 The statute required the election to be by ballot, and by virtue of this 
 one vote Reade claimed to be elected. The court instructed the jury as 
 follows : 
 
 In all our public elections those who neglect or refuse to vote according to law are 
 hound by the votes of those who do vote, no matter how small a minority those who 
 do vote are of the whole constituency. It is an historical fact that about forty thou- 
 sand electors who voted for one or the other of the candidates for governor at the late 
 election did not cast any vote for or against the amended constitution, and yet that in- 
 strument lias, by a comparatively small minority, become the supreme law of the land. 
 The result of our opinion is that if you are satisfied from the evidence that Abraham 
 Miller tendered a vote by ballot for the defendant, and that his vote by ballot was re- 
 ceived as such, then has the defendant sustained his plea of having been, on the 1st 
 of April last, duly elected county treasurer. 
 
 A former Committee of Elections of this House (Nineteenth Congress, 
 1st session), in the case of Biddle and Richard vs. Wing (Clark and 
 Hall, page 507), laid down the rule which has always been recognized. 
 The report in that case held that 
 
 The law appoints a particular time and place for the expression of the public^ voice* 
 Wlit-n that time is past it is too late to inquire who did not vote, .or the reason why 
 The only question now to be determined is for whom the greatest number of legal vote 
 have been given. 
 
 The small vote on the 7th of November in Colorado was not the result 
 of intimidation of voters; but, on the contrary, the supporters of one of 
 the claimants of the seat voluntarily absented themselves from the elec- 
 tion by preconcerted arrangement, and for the very purpose of invalidat- 
 ing the election, so far as it was in their power to do so by their absence. 
 Conceding that there was an honest difference of opinion among the 
 voters of Colorado as to the legal day for the election, some believing 
 the 3d day of October and others the 7th day of November to be the law- 
 ful day, yet it will not be pretended that the proper construction of an 
 act of Congress is to be determined by the voters of a particular district. 
 The provisions of law which fix the time or place of holding elections 
 are mandatory. As to the time of election, the day cannot be changed 
 even by the consent of all the voters. (McCrary, sec. 114.) 
 
 Ignorance of the proper time, or a misunderstanding of the law on 
 the part of a portion of the electors, will not deprive those who do un- 
 derstand the law and who do act upon the day prescribed by law, from 
 their righf to vote and control the election. It is not denied that the 
 election on the 7th day of November was conducted in accordance with 
 the general election-law of the State : that all electors who desired to do 
 so were permitted to vote, and that the canvass and result were honestly 
 made and published. 
 
 CONCLUSION. 
 
 Mr. Patterson having received a majority of all the votes cast at the 
 election on the 7th day of "November, 1876, in the State of Colorado, for 
 Representative in the Forty-fifrh Congress, and that being the day pre- 
 scribed by law for holding such election, your committee recommend 
 the adoption of the following resolution : 
 
 Resolved, That Thomas M. Patterson is entitled to a seat in this House
 
 60 DIGEST OF ELECTION CASES. 
 
 -* 
 
 as the Representative in the Forty-fifth Congress from the State of Col- 
 orado. 
 All of which is respectfully submitted. 
 
 JOHN T. HAERIS. 
 
 WILLIAM M. SPRINGER. 
 
 MILTON A. CAKDLER. 
 
 JAC. TURKEY. 
 
 THOS. R. COBB. 
 
 JERE. N. WILLIAMS. 
 
 E. JNO. ELLIS. 
 
 I reserve the right, in a report hereafter to be filed, to assign my own 
 reasons for agreeing with the conclusions of the above report. 
 
 E. JNO. ELLIS. 
 
 Mr. JOHN T. WAIT, from the Committee on Elections, submitted the 
 
 following as the 
 
 VIEWS OF THE MINORITY. 
 
 The undersigned, from the Committee on Elections, dissenting from 
 the views of a majority of your committee, submit the following, in the 
 'contested-election case from the State of Colorado. 
 
 In determining who, if any one, as a Representative from Colorado, 
 is entitled to a seat in the House, two questions must be considered : 
 
 1st. Did Congress empower the constitutional convention to fix the 
 time at which the member to this Congress from that State should be 
 elected? 
 
 2d. If this power was conferred by Congress on the convention, did 
 that body execute it f 
 
 The section of the enabling act bearing on the question of Colorado's 
 representation in Congress reads as follows : 
 
 SEC. 6. Until the next general census said State shall be entitled to one Repre- 
 sentative in the House of Representatives of the United States, which Representative, 
 together with the governor and other State officers, shall be elected on a day subse- 
 quent to the adoption of the constitution, and to be fixed by said constitutional con- 
 vention. 
 
 That the convention was to have power over the Representative men- 
 tioned in this section is, it seems to us, entirely certain. The only words 
 of limitation in the provision and upon the grant of power are " until 
 the next general census." Certainly there is nothing in the section 
 which limits the election of the Representative mentioned, therein to 
 the unexpired term of the Forty -fourth Congress, nor is there any lan- 
 guage which limits it to the first Representative to be elected. 
 
 The words " which Representative " relate to the Representative or 
 representation the incoming State would be entitled to until the next 
 census, and the day subsequently referred to to be designated for elec- 
 tions refers to a day or period of time periodically recurring. 
 
 To section 6 of the enabling act, as above quoted, should be added: 
 
 And till such State officers are elected :iml qualified under the provisions of the 
 constitution, the Territorial officers shall continue to discharge the duties of their 
 respective offices. 
 
 It is claimed this language proves only one set of State officers and 
 one election are referred to in the section.
 
 PATTERSON VS. BELFORD. 61 
 
 It seems to us the whole object of the above clause is to indicate 
 when the Territorial abdicate in favor of the State officers. If it read 
 "until State officers are elected," omitting the "such," the above argu- 
 ment would not be made. Then to what does " such " refer ? Our un- 
 derstanding is, the object of the preceding provisions of the section in 
 reference to elections was to provide the Representative should be 
 chosen with the State officers, until the next general census, and in 
 speakiug of State officers it refers to all in their respective lines of suc- 
 cession until then. 
 
 Doubtless the section provides for a first election, and it contemplates 
 an ''election day" will be fixed for future State officers and Repre- 
 sentatives a day, as we have before remarked, periodically recurring 
 for future elections, and the only effect of the word " such," if it has 
 any special effect, is with more particularity and certainty to refer to 
 State officers elected under the constitution. 
 
 We think it does not strengthen or change the meaning of the pro- 
 vision. 
 
 We next call the attention to section 44 of the constitution, which 
 provides : 
 
 One Representative in the Congress of the United States shall be elected from the 
 State at large at the first election under this constitution, and thereafter at such 
 times and places and in such manner as may be provided by law. 
 
 It will be remarked the constitution follows the words of the enabling 
 act in describing who is to be elected. " One Representative" * * " is 
 to be elected." 
 
 The provision was prepared in the light of and with the act of Con- 
 gress before the convention, and we suppose it is not open for argument 
 that the acceptance of a power, the execution of a grant of power, in 
 the very language of the grant, is a full acceptance and a complete 
 execution. 
 
 The section of the constitution quoted intended to and did provide 
 for the election of a Representative to Congresses then in existence or 
 thereafter to be held, for the election to which, according to the usages 
 and laws in other States, and in the light of the usages of this House 
 and the laws of the United States, the day indicated would be reason- 
 able and proper ; and since other States are now represented here by 
 the authority of elections held upon or about the day fixed, its reason- 
 ableness and propriety as a day to elect a Representative from Colorado 
 to the Forty-fifth Congress cannot be questioned. 
 
 The day is indicated by section 7, providing for general elections 
 the first Tuesday of October, commencing with 1876, and continuing 
 to, and including, 187*S the first Tuesday in October, 1876, being the 
 first election within the language of the forty-fourth section above 
 quoted, " the first election under this constitution." 
 
 The argument against this construction is, that "Representative," as 
 there used, refers to a Representative to the Forty-fourth Congress. If 
 read thus, we submit the subsequent lines " thereafter at such tiines,"&c. r 
 means " Representatives to Congress, thereafter, at such times," &c. 
 We will render the section with the interpolations : 
 
 One Representative in (the Forty-fourth interpolated) Congress of the United States 
 shall be elected from the State at large, at the first election under this constitution, 
 and (Representatives to Congress interpolated) thereafter (meaning after the Forty- 
 fourth) at such times, &c. 
 
 Placing in the provision the first interpolation, and " thereafter " must 
 of necessity have the purpose and meaning ot the subsequent inter- 
 polation.
 
 62 DIGEST OF ELECTION CASES. 
 
 The last clause of the section " thereafter at such times," &c., " as 
 may be provided by law," does not provide for legislation in the State for 
 a future election-day to the Forty- fifth Congress. The section of the 
 enabling act we have cited clearly confines the election to the day of the 
 election of State officers ; and that having been by the convention desig- 
 nated the first Tuesday in October in each year, the legislature would 
 have no power to change it, and any provision in the constitution pur- 
 porting to give the legislature that power would be against the letter 
 and spirit of said section 6 of the enabling act, and if said clause may 
 seem to refer to future elections, if read by itself, the provisions for gen- 
 eral elections we have cited, subsequently occurring in the constitution, 
 the seeming inconsistency must yield to a harmonious interpretation 
 not against the terms and spirit of the enabling act, and favorable to 
 the conceded right of the State. And it seems to us the forty-fourth sec- 
 tion is not a limitation upon the provision for general elections, but on the 
 contrary, if it provides only for a Representative to the Forty-fourth Con- 
 gress, the provision for general elections is the provision it contemplates 
 for Representatives to future Congresses, and by force of it, the State 
 could elect to the Forty-fifth Congress; that a constitutional conven- 
 tion may provide for the election of a Representative other than to the 
 first Congress thereafter has been heretofore decided by the House of 
 Representatives after due consideration and by a non-partisan vote. 
 (See Shiel vs. Thaver, p. 357, 1st sess. 37 Cong., Globe Appendix, 1861, 
 Vol. 45.) 
 
 Our conclusions and argument are supported by the fact if Colorado 
 could not elect to this House in October, 1870, she could not at all. If 
 we are right in the construction we have given section 6 of the enabling 
 act, it is in conflict with the act of Congress designating the first Tues- 
 day after the first Monday in November, biennially, for the election of 
 Representatives, and being the later law, repeals it as to Colorado. 
 And, as we have shown, the enabling act limited the election of Repre- 
 sentatives to the day of the election of State officers, the first Tuesday 
 in October in each year. 
 
 In this connection, it is to be observed the convention, further on in 
 the constitution, provided: 
 
 SEC. 16. The votes cast for Representatives in Congress at the first election held 
 under this constitution shall be canvassed and determined in the manner provided 
 by the laws of the Territory for the canvass of votes for Delegates in Congress. 
 
 Would the convention have used the word "Representatives," a plural 
 description, if it contemplated a Representative to the vacancy in the 
 Forty-fourth Congress only was to be elected, and the preceding provis- 
 ions only provided therefor? 
 
 That the constitutional convention assumed it tod full jurisdiction of 
 the question and intended to exercise it the last-quoted section makes 
 apparent; it continued the election-laws of the Territory to the elec- 
 tion in October and no further, and by the provisions of the constitu- 
 tion fixing the time of the assembling of the first legislature of the 
 State and its methods of enacting laws, it was impossible for it to pro- 
 vide election laws for the first Tuesday after the first Monday in Novem- 
 ber (see constitution of Colorado) ; the inference follows it assumed a 
 Representative to this Congress was to be elected in October, 1876; 
 otherwise it intended not to make provision for such an election. 
 
 But supposing the constitution only provides for the election of a 
 Representative to one Congress, in the absence of language showing 
 another intent you are compelled to the conclusion it was for the one it 
 had the constitutional right to provide for, and when Colorado was in-
 
 PATTERSON VS BELFORD. 63 
 
 vested with her sovereignty as a State, as to her there was a vacancy 
 in the Forty-fourth Congress, and the Constitution of the United States 
 provides (see next to last clause of section 3, article 1) 
 
 When vacancies happen in the representation from any State, the executive author- 
 ity thereof shall issue writs of election to rill such vacancies. 
 
 Certainly the election in October was not by virtue of any proclama- 
 tion, and the constitutional way of tilling a vacancy was not pursued, 
 with the uncertainty when the State would be admitted. With the 
 aforesaid right of the executive power to provide for filling a vacancy, 
 who may say it is not fairly inferable the convention provided for elect- 
 ing to the first Congress after the admission of the State? But the 
 State of Colorado and her people alone are interested in this question. 
 She is entitled to representation, and the proper and only function of 
 the House is to see that, within the principles of representation under- 
 lying the legislative branch of our government, she has her constitutional 
 right. And upon this complex question for we suppose it must be com- 
 plex, since the views of members of your commmittee are so diverse her 
 people have put a construction. 
 
 We suppose it to be well settled in cases of the doubtful construction 
 of a statute involving the rights of the people, and only their rights as 
 distinguished from individual rights, the adoption of a particular con- 
 struction with entire unanimity has never been disturbed by a power 
 only interested to preserve the rights of the State; certainly never when 
 the only possible injury to the constituency is in the political associa- 
 tions of the individual who shall represent the State if that construction 
 shall remain unreversed. And we affirm most confidently the people of 
 Colorado have construed the provisions hereinbefore discussed in ac- 
 cordance with our views; and upon that point we submit a few of the 
 most prominent facts. 
 
 The call for the Republican convention notified the delegates that a 
 candidate for the Forty-fourth and Forty-fifth Congresses would be 
 voted for at the October election. (See answer to the 35th direct inter- 
 rogatory to Mr. Wilson, chairman of the Republican State central com- 
 mittee, at page 42 of the printed testimony.) 
 
 As early as September 7, lacking but four days of one mouth before 
 the October election, Mr. Patterson was engaged with his friends dis- 
 tributing throughout the State tickets with his name on for both Con- 
 gresses. (See testimony of Wilbur F. Stone, pp. 101 and 102.) In his 
 letter to Mr. Butler, chairman of the Democratic State central com- 
 mittee, written on the 7th day of September, he advises that gentleman 
 that the popular belief is that the member to the Forty-fourth and 
 Forty-fifth Congresses is to be elected at the October election. (See tes- 
 timony, p. 68.) 
 
 The Kansas City Times, Colorado edition, a representative Demo- 
 cratic paper established in Colorado to advance the interests of the 
 Democracy, in its issue of the 16th of September, advised the people to 
 vote for Mr. Patterson for both Congresses at the October election, and 
 repudiated the idea that the member to the Forty-fifth Congress could 
 be elected at any other time. 
 
 General Hughes, the Democratic candidate for governor, when con- 
 sulted by his friends on the subject, advised them to place Mr. Patter- 
 son's name on the tickets for both terms. (See p. 210.) The tickets 
 were so printed and so voted in every county in the State. Twenty-six 
 thousand and seventy-four votes were cast by the people at the October 
 election as against 3,580 cast for Mr. Patterson in November.
 
 64 
 
 DIGEST OF ELECTION CASES. 
 
 Some stress has been placed on the fact that a proclamation was is- 
 sued notifying the electors that the member to the Forty-fifth Congress 
 would be elected in November. It is evident that the existence of this 
 proclamation had little or no effect on the votes cast in October. Al- 
 most from the moment of its issuance it encountered the hostile criti- 
 cisms of both parties, and was withdrawn some considerable time before 
 the November election. It was issued by a clerk in the office of the 
 secretary of state, during his absence from Colorado, and against his 
 opinion and judgment. 
 
 The following tables of the official canvass establish most completely 
 the unanimity of the people in giving to the provisions of the constitu- 
 tion the construction we have submitted. 
 
 Certificate of board of canvassers. 
 STATE OF COLORADO. 
 
 To his excellency Hon. JOHN L. ROUTT, 
 
 Governor of the State of Colorado : 
 
 We, the undersigned, composing the board of canvassers of the said State, respect- 
 fully represent that, in the discharge of the duties imposed upon them hy the consti- 
 tution and laws of said State, they did, in your presence, on the 28th day of October, 
 A. D. 1876, proceed to canvass the votes polled at an election held on the 3d day of 
 October, A. D. 1876, for Representative to the Forty-fourth and to the Forty-fifth 
 Congresses of the United States, and we do hereby certify that we have carefully ex- 
 amined all the returns from the board of canvassers of each of the counties in said 
 State, as returned and now on file in the office of the secretary of state, and that the 
 following is the result of our canvass of the whole number of votes polled for said 
 offices at said election, to wit : 
 
 For Representative in Forty-fourth Congress. For Representative in Forty-fifth- Congress. 
 
 
 James B. Belford. 
 
 Tl i I'M. M. Patterson. 
 
 * 
 
 James B. Belford. 
 
 Thos. M. Patterson. 
 
 Arapahoe County 
 
 2.173 
 242 
 1,447 
 340 
 1,064 
 352 
 294 
 83 
 712 
 522 
 79 
 1,015 
 408 
 396 
 553 
 218 
 53 
 364 
 267 
 461 
 540 
 189 
 396 
 295 
 197 
 754 
 
 1,792 
 448 
 997 
 222 
 1,034 
 139 
 322 
 117 
 403 
 532 
 137. 
 754 
 615 
 
 in 
 
 586 
 246 * 
 106 
 309 
 585 
 421 
 741 
 244 
 436 
 201 
 188 
 476 
 
 Arapahoe County................ 
 
 2,184 
 238 
 1,538 
 340 
 1,065 
 307 
 293 
 83 
 710 
 336 
 
 1,779 
 446 
 1,067 
 222 
 1,033 
 84 
 321 
 111 
 404 
 361 
 
 Bent County 
 
 
 Boolder County........... 
 
 
 Conejos County 
 
 Conejos County 
 
 Clear Creek County...... 
 
 
 Cost ilia County 
 
 
 Douglas County ............ 
 
 
 Elbert County 
 
 Elbert County 
 
 El Paso County 
 
 El Paso County 
 
 Fremont County 
 
 
 
 
 Gilpin Conntv 
 
 
 1,018 
 409 
 395 
 557 
 215 
 21 
 364 
 675 
 359 
 542 
 189 
 370 
 294 
 197 
 739 
 
 752 
 612 
 396 
 581 
 135 
 76 
 309 
 1,263 
 354 
 739 
 244 
 435 
 202 
 188 
 470 
 
 Hnerfano County 
 
 
 Hinsdale County 
 
 
 Jefferson County 
 
 
 Lake County 
 
 
 La Plata County 
 
 La Plata County 
 
 Larimer County 
 
 Larimer County ... 
 
 Las Animas County 
 
 
 Park County. 
 
 Park County 
 
 Pueblo County 
 
 Pueblo County 
 
 
 Rio Grande County 
 
 
 
 
 
 
 
 Weld County 
 
 Weld County 
 
 Total vote 
 
 Total vote 
 
 13,308 
 
 12, 310 
 
 13, 438 12, 584 
 

 
 PATTIBSON VS. BELFORD. 
 
 65 
 
 In testimony whereof we have hereunto set our 
 hands and caused the great seal of the State to be 
 affixed this twenty-eighth day of October, A. D. 
 1878. 
 
 (Signed) JOHN TAFFB, 
 
 Sfc'y of Mate. 
 L. C. CHAKLKS, 
 State Auditor. 
 
 [BKAL.] , 
 
 State Treaf. 
 
 In testimony whereof we have hereunto set our 
 hand* and caused to be affixed the great seal of the 
 State of Colorado this twenty-eighth day of Octo- 
 ber, A. U. 1878. 
 
 (Signed) JOHN TAFFE, 
 
 Sec'y nf State. 
 L. C. CHARLES, 
 State Auditor. 
 
 [BBAL.] 
 
 , 
 State Treaf. 
 
 More votes were cast for the candidates for the Forty-fifth Congress 
 than for the vacancy in the Forty-fourth. 
 
 To further show the character of the contest, we call the attention of 
 the House to the following extracts from the testimony. Mr. Wilson 
 testified, page 240: "The vote polled was the largest ever known in the 
 State, and was, in my judgment, as full a vote as was ever brought out 
 at any election in any place. 1 ' 
 
 Mr. Butler, chairman Democratic Central Committee, testifies, page 
 63, cross interrogatories 9 and 10: "It was the-first State election occur- 
 ring in the centennial year and in the centennial State, and both parties 
 made an earnest, tremendous effort for success." And again he says: 
 "It was the most exciting election we ever had in Colorado, or would 
 be likely to have for many years to come." 
 
 General Hughes, Democratic candidate for governor, testifies, page 
 74: "The canvass was an active one, both parties taking a great in- 
 terest in it, and I think a very full vote of both parties was polled." 
 
 The result of this "earnest and tremendous effort for success" made 
 by the friends of Mr. Patterson, resulted in the election of Mr. Belford. 
 
 To show the contrast of the October and November elections, we 
 present the following comparative table of votes: 
 
 Counties. 
 
 H 
 
 
 
 6 
 
 1 
 
 Counties. 
 
 Ill 
 ||| 
 
 111 I 
 H * 
 
 Patterson's Novem- 
 ber vote, 
 
 Arapahoe 
 
 3,963 
 
 574 
 
 Jefferson 
 
 ],139 
 
 2'6 
 
 Bent 
 
 084 
 
 134 
 
 Lake 
 
 350 
 
 68 
 
 
 2 605 
 
 302 
 
 La Plata 
 
 97 
 
 
 
 502 
 
 
 
 673 
 
 70 
 
 
 2 098 
 
 331 : 
 
 
 1 938 
 
 
 Costilhi 
 
 418 
 
 
 Park 
 
 713 
 
 132 
 
 Douglas .. - 
 
 014 
 
 98 
 
 Pueblo 
 
 1,281 
 
 450; 
 
 Elbeit 
 
 194 
 
 93 
 
 Uio (irande 
 
 433 
 
 29- 
 
 El Paso 
 
 1 114 
 
 
 
 805 
 
 
 Fremont 
 
 097 
 
 244 
 
 Sagiiache 
 
 490 
 
 32 
 
 
 
 
 
 3f*5 
 
 
 
 1 771 
 
 221 
 
 Weld 
 
 1 232 
 
 49 
 
 
 
 199 
 
 
 
 
 
 791 
 
 
 Total 
 
 26 074 
 
 3 580> 
 
 
 
 
 
 
 
 It has been suggested, the fixing of the date of an election of a Rep- 
 resentative to Congress by a constitutional convention can only be justi- 
 fied, and is justified, by the necessities of the case. We have hereinbe- 
 fore shown no legislative provisions, taking into account the time the 
 State was admitted and its legislature was to assemble, could have been 
 enacted for an election at the day (the first Tuesday after the first 
 Monday in November) fixed by Congress, and therefore the same law 
 of necessity justified as well the exercise of the right of fixing the day 
 to elect to the Forty-fifth Congress as to the vacancy in the Forty fourth. 
 H. Mis. 58 5
 
 66 DIGEST OF ELECTION CASES. 
 
 We most respectfully recommend the adoption of the following reso- 
 lution : 
 
 Be it resolved, That the Honorable James B. Belford is the duly- 
 elected Representative in the Forty-fifth Congress from the State of 
 Colorado, and that he be sworn in as such Representative. 
 
 JNO. T. WAIT. 
 
 J. M. THORNBURGH. 
 
 FRANK HISCOCK. 
 
 The undersigned, a member of the Committee on Elections, dissent- 
 ing from the views of the majority of the committee, desires to submit 
 the following in the matter of the contested seat of a Representative of 
 Colorado : 
 
 The contest between James B. Belford and Thomas M. Patterson for 
 the scat to which one Representative of Colorado is entitled in the 
 Forty-fifth Congress is a mixed question of law and fact. 
 
 At a general election held in that State on the 3d day of October, A. 
 D. 1876, votes were cast for a Representative in both the Forty-fourth 
 and Forty-fifth Congresses. A little over twenty-six thousand votes 
 were polled for the two candidates, which is admitted to be a full vote 
 for the State. The vote for the Representative for the Forty-fifth Con- 
 gress, as polled and returned, was a little larger than that for Represent- 
 ative in the Forty-fourth Congress. There is no reasonable doubt that 
 both political parties did, in fact, cast their full vote at that election for 
 Representative in both Congresses, and that if said election can be con- 
 sidered as a lawful election for a member of the Forty- fifth Congress, 
 James B. Belford is entitled to the seat, he having received a majority 
 of the votes cast. As to this there is no dispute. 
 
 Thomas M. Patterson, who received a minority of the votes cast for 
 Representative in the Forty-fifth Congress at the election above men- 
 tioned, seems to have claimed, prior to the October election, that no 
 valid election for the present Congress could be held in October, but 
 that the 7th of November, the day fixed by Federal statute (if such 
 statute controlled the matter) was the day on which the election for the 
 Forty-fifth Congress must be held. He accordingly seems to have taken 
 steps to have an election held on said 7th of November, and on that day 
 3,829 votes were cast for Representative in this Congress, of which 3,580 
 were cast for said Patterson and 172 for said Belford, the rest scatter- 
 ing. If said 7th of November was the lawful day for holding said elec- 
 tion, and if a real election was then held by the people of Colorado, 
 Thomas M. Patterson is entitled to the seat, he having received nearly 
 all the votes cast. 
 
 The questions of law are 
 
 I. What was the lawful day, if any, for holding an election in Colo- 
 nulo for Representative in the Forty-fifth Congress? 
 
 II. What would be the effect of a general participation by the people 
 of the State in an election for Representative held on some other than 
 the lawful day, if such should be the fact? 
 
 The question of fact is 
 
 I. What was the general understanding and conduct of the people of 
 Colorado in regard to the elections for Representative in the Forty -fifth 
 Corgi-ess, held, or alleged to be held, on the 3d of October and the 7th 
 of November, respectively 1 ? 
 
 The question* of l/ru- .-
 
 PATTERSON VS. BELFORD. 67 
 
 I. In examining and passing upon the provisions of law relating to 
 die time, if any, fixed for the election, it is necessary to begin with the 
 Constitution of the United States. Article 1, section 2, provides that "the 
 clouse of Representatives shall be composed of members chosen every 
 second year." 
 
 The obligation to have the elections biennial is, therefore, fundamental, 
 and would override any other law, either Federal or State, which would 
 seem to make a different provision, except in cases of vacancies from 
 any State, when the same section provides that the " executive author- 
 ity thereof shall issue writs of election to fill such vacancies." Ex neces- 
 sitate rei, elections to fill fractious of a term cannot be biennial, and the 
 fraction may be never so small; consequently, the law must be held to 
 permit, and custom has certainly established it, that elections for a full 
 and fractional term may be held on the same day. No other clause of 
 the Constitution is found to treat of the subject of fractional terms, and 
 the word " vacancies'' in the section referred to is that under which all 
 legislation on this subject has been authorized, including the act of 
 Congress of February '2, 1872. (Revised Statutes, sections 25 and 26.) 
 
 Article 1, section 4, of the Constitution provides that " the times, 
 places, and manner of holding elections for Senators and Representa- 
 tives shall be prescribed in each State by the legislature thereof; but 
 the Congress may at any time by law make or alter such regulations, 
 except as to the place of choosing Senators." 
 
 This section manifestly gives to the legislative department of the 
 several State governments primary and full control over the " times, 
 laces, and manner of holding elections" for Representatives in Con- 
 gress, subject only to such limitation or interference as Congress may 
 affirmatively enact, and subject also, of course, to the provisions of sec- 
 tion 2 of the same article, before examined. Inasmuch as the general 
 power over the subject rests with the legislative departments of the 
 States, the acts of Congress cannot be held to have wider scope than 
 their language necessarily means, and a caauts omissus, if there be any, 
 remains under State control. 
 
 Congress has provided by act of February 2, 1872 (Revised Statutes, 
 $$ 25 and 26), the times of holding elections for Representatives in the 
 several States, to wit, regularly on " the Tuesday after the first Monday 
 n November, in every second year" after 1876, and starting with that 
 year ; and in case of vacancy, at such time as " may be prescribed by 
 the laws of the several States/' 
 
 The exceptions to this rule, made by any other acts of Congress than 
 the Colorado enabling act, need not now be considered, as it is not 
 claimed that they art'ect Colorado. 
 
 If, therefore, the time for holding elections for Representatives in the 
 Forty -fourth and Forty-fifth Congresses were to be determined only by 
 the provisions of law thus far referred to, it seems logically conclusive 
 that the day for the election to the fractional term of the Forty-fourth 
 Congress would be determined by the laws of the State, either under 
 the twenty sixth section of the United States Revised Statutes, or under 
 "he general provisions of article 1, sections 2 and 4, of the Federal Con- 
 stitution, already cited. As to the Forty-fifth Congress, it would be 
 equally conclusive that the time of election would be the Tuesday after 
 the first Monday of November, 1876, which is admitted to have been 
 on the 7th day of the month. 
 
 The machinery of election was provided by the Territorial laws, kept 
 alive by the new State constitution, and no question could reasonably
 
 '68 DIGEST OF ELECTION CASES. 
 
 arise as to the legal methods by which the will of the people might be 
 expressed. 
 
 But, under its authority to admit new States into the Union, Congress 
 passed an " enabling act" to authorize the organization of a State gov- 
 ernment for Colorado, which, apart from all other legal considerations, 
 must be the decisive authority in this case, because it was under and by 
 virtue of it that Colorado became a State within the Union at all; ami 
 the right to any represent atiou in Congress must rest upon the perform- 
 ance of the conditions and the pursuance of the methods provided by 
 that act. Again, that act, being subsequent to the general statute of 
 1872, and being specifically directed to the case of Colorado, must be 
 held to take the new State out iroin under the general law, as far a* 
 the fair intendment of the language of the enabling act would do so. 
 
 The sixth section of this act of Congress reads as follows : 
 
 SEC. 6. Until the, next general census said State shall be entitled to one Repre- 
 sentative in the House of Representatives of the United Stated, which Representative, 
 together with the governor and other State ofiicers, shall be ele ted on a day subse- 
 quent tot be adoption of the constitution, to be fixed by said constitutional convention. 
 
 In thus remitting to the constitutional convention of Colorado the 
 authority to fix the dav for election of Representative, Congress has 
 distinctly and necessarily abrogated, in the case of that State, and for 
 such period as is named in the act, every preceding Federal law upon 
 the subject, saving, of course, the provisions of the Constitution. Al- 
 though article 1, section 4,.of the United States Constitution does not 
 in terms name constitutional conventions as legislative bodies of ihe 
 several States, the act just quoted is only one of numerous instances in 
 which they are included in the generic term "legislative" by legislative 
 interpretation in the acts of Congress. So notorious has been the 
 custom of fixing the time of general elections, including those foi Re.p- 
 resentatives in Congress, by the constitutions of the States, that a gen- 
 eral except ion to the twenty-tifth section of the United States Revised 
 Statutes was enacted by Congress 111 1875, in the case of the several 
 States whose "constitutions must be amended" to make them accord 
 with the act of Congress fixing the Tuesday after the first Monday in 
 November as the day of electing Representatives. It must therefore 
 be regarded as settled that a constitutional convention is included 
 under the general term "legislative" in the Constitution of the United 
 States, and acts of Congress made in obedience thereto. 
 
 We are thus brought to the decisive question, What is the extent of 
 the power over elections of Representatives relegated to the legislative 
 authority of Colorado by the section of the enabling act already quoted I 
 
 The State is declared "entitled to one Representative until the next 
 general census." 
 
 "One Representative" cannot be held to mean the same individual 
 during all the time named, nor that he is to be elected at one time for 
 the \\hole period. The constitutional provisions as to biennial elec- 
 tions, length of the official term, and fractional terms, which have 
 already been quoted, are the fundamental law, and no stiuin need be 
 put upon the language of the enabling act to make it accord with them. 
 
 It provides that at all times " until the next general census " (and, by 
 fair implication, mm] the results of such census can be made officially 
 the basis of a new rule), Colorado shall be "entitled to one Representa- 
 tive." If, therefore, Mr. iSelfoid were the Representative in the Forty- 
 toiuth Congress, Mr. Patterson in the Forty-fifth, and any other citizen 
 of Ihe State in the, FortA -sixth or subsequent Congresses, during the 
 period stated, no one would dream of claiming that the provision tliht
 
 PATTERSON VS. BELFOED. 69 
 
 Colorado should have one Representative was violated because three or 
 four different men had represented the State. 
 
 But how would it be as to the time of electing these successive Rep- 
 resentatives ? In the case of each of them in his turn but one pertinent 
 question could be put, viz : Was he elected " on a day subsequent to the 
 adoption of the constitution" of the State, and " fixed by said cousti 
 tutional convention"? To claim that they must all be elected in one 
 ,<'ar would be a fault in logical interpretation of precisely the same 
 ;iinl as to say that they must all be the same individual. 
 
 The principal proposition of the said sixth section is that Colorado 
 *>hall have one Representative. The qualifying causes are, first, that 
 this rule shall last till the next general census; and, second, that such 
 Representative shall be chosen on a day fi xt d by the constitutional con- 
 vention. Whoever can answer the description given in these three 
 vspects is the lawful Representative of Colorado, and none other, 
 ^very rule of logical analysis makes the qualification that this shall be 
 the rule, " until the next general census," apply to the whole of the sec- 
 tion and all its parts. To except any one of them is to substitute a new 
 law in the place of that which we find on the statute-book. 
 
 The next step in the investigation is to ask what the constitutional 
 convention of Colorado did in the premises. 
 
 Section 44 of the State constitution is that which covers the subject. 
 It declares that " one Representative in the Congress of the United States 
 shall be elected from the State at large at the first election under this 
 constitution, and thereafter at such times and places and in such im>n- 
 rier as may be provided by law." 
 
 It is noticeable that in this section the term "one Representative" is 
 
 -.iscd in the same way as in the enabling act, and the narrow iuterpre- 
 
 r at ion which would insist that but one individual could be meant, or that 
 
 ni election but for one term could take place, might be as well applied 
 
 Iiore as to the act of Congress, except that the concluding clause, " and 
 
 thereafter at such times and places," &c., fixes beyond cavil the meau- 
 
 n,i, r given to the enabling act by the convention. It manifestly intended 
 
 i) cover the whole period over which it could have jurisdiction and 
 
 refers to the several terms of office during which Colorado might be 
 
 entitled to but one Representative " at large." 
 
 This section does not name the day of either of the elections, but they 
 ii.' severally ''fixed" (to use the word found in the enabling act) by 
 reference to that which will definitely determine the time. The day of 
 the first election for Representative is to be that of " the first election 
 under this constitution," and of subsequent ones "as may be provided 
 by law." Under the maxim of law " id cerium est, quod cerium reddere 
 potest," this reference from one clause of the fundamental law of the 
 State to another which names the day for the first election, and to tho 
 ordinary statute law for the days of subsequent elections, must be re 
 garded as an entirely allowable and appropriate method of exercising 
 the power remitted to the convention by the enabling act. This will 
 appear the more clearly in regard to the reference to acts of the legisla- 
 ture, when it is remembered, as has been noted above,. that the Consti- 
 tution of the United States recognizes the power over such matters as 
 '.H'ing in the "legislature" of the State, and that it is only by implica- 
 tion (though an abundantly strong one) that the power can be considered 
 as vested in constitutional conventions. 
 
 There can hardly be need of stopping to meet the possible objection 
 that the phrase " provided by law," as found in the State constitution, 
 aieaus Federal law and not State laws. The most casual glance at con-
 
 70 DIGEST OF ELECTION CASES. 
 
 stitutions of the several States of the Union will show a uniformity aud 
 regularity of use which will at once remove any doubt. We are inter- 
 preting the fundamental law of a State ; and its references to future pro 
 visions of law which it authorizes, and which will depend upon it for 
 their validity, must necessarily look to the statutes of the State enacted 
 to carry into effect the more general provisions of the constitution. 
 
 The forty-fourth section of the State constitution has therefore ex- 
 hausted the power remitted to the constitutional convention by theeuab 
 ling act, and it only remains for us to apply its provisions to the contest 
 before us. 
 
 It is an admitted fact that the first election under the State constitu- 
 tion was held on the 3d day of October, 1876, and that neither in the 
 constitution nor in any law of Colorado was the 7th day of November 
 of that year named as the day for any election whatever. The conclu- 
 sion is therefore inevitable that the latter day was not a lawfully-estab- 
 lished day for the election of a Representative in Congress from the 
 State of Colorado. 
 
 As to the election held on the 3d of October it is equally clear that it 
 was a lawful day of election for a Representative in the Forty-fourth 
 Congress. But how is it as to the Forty-fifth? 
 
 A series of elections for "one Representative" in Congress was inaui 
 festly the thing provided for. The only natural and unstrained inter 
 pretatiou of the forty-fourth section of the Colorado constitution, and 
 the only one thoroughly in harmony with the principles of interpret* 
 tioij above applied to the enabling act, seems to be that the first, and 
 the first only, of this series of elections should take place on the 3d of 
 October, and the subsequent ones as the legislature might provide by 
 law. It would have been quite competent for the constitutional conven 
 tion to declare that the elections for the fractional term in the Forty 
 fourth Congress and the full term in the Forty-fifth should be filled at 
 the same election ; but it did not do so. 
 
 It has been argued before the committee that there was not time for 
 the legislature to act early enough to provide an election for the Forty 
 fifth Congress, and hence the necessity of the case would give a broader 
 meaning to the language of the State constitution. The necessity is not 
 apparent. The State legislature was to meet very early in November, 
 1876, in fact, on the first day of the month. The Forty-fifth Congress 
 began its legal term on the 4th day of March following, though it was 
 not expected to assemble till the 3d of December, 1877, and, in fact, did 
 not assemble till the 15th of October. There was no lack of time be 
 tweeu the 1st of November and 4th of March for the passage of an act 
 and the holding of an election; or, if, as has been argued, a winter elec- 
 tion in that region would be very inconvenient, it might have been fixed 
 for any time in the following spring or summer without losing a day of 
 the actual session of this Congress. The argument "ab inconvenienti" 
 is therefore insufficient, aud we are forced to the conclusion that the 3d 
 of October, 1876, was not the day in fact established by the constitution 
 or the laws of Colorado for holding an election for Representative to the 
 Forty- fifth Congress. 
 
 It follows, from this reasoning, that no election for a member of this 
 Congress was held on any day fixed by law in Colorado, for it is ad- 
 mitted that no act of the legislature exists in regard thereto, and that 
 BO other election has been held than those purporting to be on 3d Octo 
 ber and 7th November. 
 
 But it is argued that although no day was lawfully fixed for such 
 election, the action of the people of the State, generally taking part in
 
 PATTERSON VS. BELKORl>. 71 
 
 he election on tLe 3d October, and voting for a Representative in the 
 Forty-fifth Congress, may cure any illegality as to the day and consti- 
 tute a valid title to the seat. 
 
 Before we can intelligibly apply legal principles to this proposition, 
 it is necessary to turn to the question of fact, and reduce to distinct 
 form a few decisive points in the history of the case. 
 
 1. On the 14th September, notices of an election for Representative 
 in the Forty-fifth Congress were issued to the sheriffs of the several 
 counties of the State from the secretary of state's office, under the great 
 seal of the State, and published in the newspapers. Under these notices 
 the election was to be held on 7th November. (Record, p. 31.) 
 
 L'. In pursuance of sueli directions, the several sheriffs issued their 
 notices forthwith, advertising such election for the 7th November. (Ibid.) 
 
 3. The proclamation and the notices under it continued before the 
 public irom said 15th September past the election on 3d October, and 
 until the 10th Oi-tober, when it was recalled by another proclamation 
 from the secretary of state's office, hereinafter quoted. (Record, pp. 
 140, 141.) 
 
 4. The official proclamation and sheriffs' notices for the October elec- 
 tion specified ;i Representative for the Forty -fourth Congress only to be 
 elected at that time. (Record, pp. 18, 19.) 
 
 5. The proclamation for the 7th November election was issued from 
 the secretary of state's office by his assistant, in the absence and dan- 
 gerous illness of the secretary himself, but by the advice of the gover- 
 nor, the United States district attoruev, and other leading men. (Rec- 
 ord, p. 20.) 
 
 G. On 10th October, -a week after the first election, the Republican 
 State central committee issued a circular, from which the following is 
 an extract : 
 
 In consequence of the h-jjal obstacles aairoamling'tofl flection for member of Con- 
 gress, it was <leenie<l advisable tn liave the name printed twice on the tickets voted 
 at the election on the 'M of October, and if the decision of tin- people at the ballot-box 
 on the third instant had been against the Republican candidate, it was the intention 
 of the party to withdraw the name of their candidate, and make no contest whatever 
 for a seat in the Forty-tilth r<>nriv-s. The Republicans were willing to abide the de- 
 : of the October election, ami. if defeated then, to make no contest in November, 
 but to allow that election to j;o i>y default. This the Democratic party of Colorado 
 Memed to be unwilling to acoede to. Tin' result is that it is very evident 
 now that this election cannot be avoided, and it is for the Republicans throughout 
 the Si;tte to determine whether we shall make our success of October 3 complete by 
 another victory on November T. (Record, p. 46. ) 
 
 Before following the history further, it seems proper to report that 
 the facts above enumerated incontestibly show that the people of Colo- 
 rado were officially notified in such form that they were legally bound 
 to take notice that the election on the 3d October would be for State 
 officers and for a member of the Forty-fourth Congress only; and such 
 notice continued public up to the day of the election itself. Not only 
 can ignorance of it not be presumed : it is directly and formally rebutted. 
 They further show that the Republican central committee did not un- 
 derstand or claim that the October election was a legal election for 
 member of the Forty fifth Congress as late as the 10th October, but 
 spoke of the placing of the name of Representative twice on the ticket, 
 as done by them, because it was "deemed advisable"; and said that if 
 their candidate had received a minority of the votes, they had intended 
 to "withdraw" his name, "and make no contest whatever for a seat in the 
 Forty-fifth Cangrcx.v.''' Such language from the committee in charge of 
 a party's canvass is the strongest possible disproof of the idea that they
 
 72 DIGEST OF ELECTION CASES. 
 
 or the public regarded the voting for a member of the Forty-fifth Con- 
 gress in October as anything else than an informal attempt to save time, 
 expense, and trouble, which, as they themselves say, their opponents 
 " seemed to be unwilling to accede to." 
 
 7. On the 13th of October a consultation was had between prominent 
 Republicans of the State, in consequence, apparently, of a letter to the 
 editor of the Denver News, that day published by the Hon. J. B. Chaffee, 
 in which it was claimed that the election of a Representative to the Forty- 
 fifth Congress was legal and complete on 3d October. (Record, pp. 44, 
 45.) The result of the consultation was the adoption of that view by 
 those present, and the issuing on the next day, October 14, of a new 
 circular by the Republican central committee, withdrawing that of 
 October 10, and recommending Republicans to take no part in the elec- 
 tion called for November 7. (Record, pp. 47, 48.) 
 
 8. On the 16th October a new proclamation issued from the office of 
 the secretary of state, under the great seal, withdrawing former procla- 
 mation and notice for the election of November 7, on the ground that 
 "it appears upon further examination that there is no law or statute 
 authorizing said proposed election to be held, or any election to be held 
 in the State of Colorado at that time." (Record, p. 140.) 
 
 9. To the circular of the Republican central committee of 14th October 
 the Democratic central committee responded by a circular dated October 
 16, denying that the election of October 3 was legal as to the Represent- 
 ative in the Forty-fifth Congress, and insisting on the election for 7th 
 November. (Record, pp. 69-71.) This was followed by others to the 
 same purpose on October 21 and 31. (Record, pp. 75-78.) 
 
 10. At the October election both parties had provided tickets with 
 names of Representative for both the Forty- fourth and Forty -fifth Con- 
 gresses. The number of votes cast has already been stated. Hugh But- 
 ler, chairman of Democratic State committee, and others testify that the 
 double tickets were prepared and voted at the October election, " as a 
 matter of precaution " after learning that the Republicans were doing 
 the like (Record, p. 58). That the opinion had become general that 
 votes would be cast in October for both Congresses was stated by Mr. 
 Patterson, the contestant, in a letter in evidence, dated September 7 
 (Record, p. 68). The numerous witnesses who testify on this subject 
 leave the reasons for this action vague and indefinite, though nothing 
 appears in the testimony inconsistent with the idea that there was an 
 effort, never made clear or binding, to agree upon some mode of avoid- 
 ing the second election in November. The Republican secretary of state 
 and United States marshal testify that on October 3 it was generally 
 understood that there was to be another election in November (Record, 
 pp. 15, 52, 53, 54, 55). On the other hand some prominent Democrats 
 appear subsequently to have agreed that there w T as probably no au- 
 thority for the November election (Record, p. 27). 
 
 It is no doubt the rule of the law in regard to elections that the ex- 
 pressed will of the people shall be followed, if it be reasonably practica- 
 ble to construe legal provisions so as to carry it out. 
 
 It has, however, never been claimed that unofficial committees of po- 
 litical parties could abrogate the official proclamations of State officers, 
 or, in the presence of such official notice to the contrary, condense two 
 elections into one. In order to do this it would be necessary to find 
 that the law was clearly in accord with the action of the people con- 
 trary to the proclamation, and that the people themselves clearly in- 
 tended at that time to make their action final and conclusive. 
 
 As has been already showtr, the law did not fix the 3d of October as
 
 PATTERSON VS. BELFORD. 73 
 
 the <lay to elect a member to the Forty-fifth Congress, and the over- 
 whelming weight of proof is that neither the people, their officers of 
 state, nor their party committees regarded the October election, at the 
 time, as conclusive and final in this respect. 
 
 Jn regard to the 7th of November election, the day was not only not 
 the lawful one, as we have above shown, but the State officials had be- 
 come convinced of this and withdrawn the election proclamation and 
 notices. 
 
 The condition of the public mind is probably best described by the 
 secretary of state, Mr. Clark, who testifies : 
 
 Many were doubting the legality of an election for Representative in the Forty- 
 'ii'rh Congress on the 7th day of November, others claiming that it would be a mere 
 matter of form anyway, because there was some kind of an understanding between 
 Mr. Belford and Mr. Patterson that whichever was beaten at the October election 
 would not be a contestant against the other at the November election ; others claimed 
 that only a member to the Forty-fourth Congress could be elected under the constitu- 
 tion, and that the general assembly must provide by law for the holding of an election 
 r'or the Forty-fifth Congress. (Record, p. 16.) 
 
 When in the midst of the public uncertainty thus described, in which 
 the confusion was increased by the acts of party committees, prompted 
 by the fear that their opponents would get the start of them, an election 
 was nominally held, in which hardly more than one-seventh of the elect- 
 ors took part, less than one-third, even, of the party claiming the vic- 
 tory, and almost none of their opponents; when in the city of Denver, 
 the capital of the State, and where were the political managers and com- 
 mitteemen, the proportion of votes cast was not larger than in the rest 
 of the State; and when in eight counties there was not even a show of 
 election, it would be doing violence to language and to justice to call 
 th e result an expression of the popular will, or the formalities which took 
 place an election by the people of the State. 
 
 Whether we regard it, therefore, as a question of the lawfully estab- 
 lished day, or of a real and general election de facto by the people, it 
 cannot be said that a Representative to the Forty-fifth Congress was 
 chosen in Colorado on the 7th of November. 
 
 The opinion of the last class of people referred to by the secretary of 
 state in his testimony, as quoted above, seems to me to be the true one, 
 and I believe that u the general assembly of Colorado must provide by 
 law for the holding of an election for the Forty-fifth Congress," and that 
 neither contestant nor contestee is entitled to the seat. 
 
 I would therefore respectfully report the following resolution, which, 
 at the proper time, I shall offer, to wit: 
 
 Resolved, That no valid election has as yet been held in Colorado for 
 Uepresentative in the Forty-fifth Congress. 
 
 J. D. COX.
 
 74 DIGEST OF ELECTION CASES. 
 
 JESSE J. FINLEY vs. HORATIO BISBEE, JR. 
 
 SECOND CONGRESSIONAL DISTRICT OP FLORIDA. 
 
 Contestant charges that returns were forged and false, that the election officers 
 were guilty of frauds, and counted too many votes for coutestee, and threw out 
 entire polls in some instances. Contestee claims that illegal votes were cast for 
 contestant by non-registered persons. 
 
 Held, That where the result at a poll is shown by the returns to be falst and fraudu- 
 lent, and it is impossible to ascertain from the other evidence in the case the true 
 vote of said poll, the vote of such poll must be entirely rejected. 
 
 Where persons vote without challenge, it will be presumed that they were entitled to 
 vote, and that the sworn officers of the election who received their votes performed 
 their duty properly and honestly. 
 
 Where it ia provided in a registration law that the commissioner shall '' examine the 
 list of registered voters, and erase therefrom the names of such persons as are 
 known, or may be shown to their satisfaction to have died or ceased to have re- 
 sided permauently in the county, or otherwise become disqualified to vote"; and 
 it is further provided that "if the voter, on offering to vote, in case his name isnot 
 found on the registration list, will take an oath that his name lias been improperly 
 struck off, and shall take the oath required to be taken by persons whose right to 
 vote shall be challenged, such person shall have the right to vote"; and such per- 
 son does vote, having all the other qualifications of a voter, and his name is found 
 on the poll-list, his vote will be presumed to be legal until the contrary be proven, 
 
 The House adopted the majority report, February 20, 1879. 
 
 FEBRUARY 5, 187^. Mr. COBB, from the Committee ou Elections, sub- 
 mitted the following 
 
 REPORT: 
 
 The Committee on Elections, to whom were referred the papers relating to 
 the contested- election case in the second Congressional district of Florida, 
 having had the same under consideration, submit the following report: 
 
 The second Congressional district in the State of Florida is composed 
 of the counties of Alachua, Baker, Brevard, Bradford, Clay. Columbia. 
 Duval, Dade, Hamilton, Madison, Marion, Nassau, Orange, Putnam. 
 Snwannee, Saint John's, and Volusia. 
 
 The record in this case covers 972 pages, the brief of contestant 139 
 pages, and the brief of contestee 99 pages, making in all 1.190 pages of 
 printed matter which your committee has had to examine, and which 
 has been done with great labor. 
 
 Jn the general election held in this district on the 7th day of Novem- 
 ber, 1876, Jesse J. Finley and Horatio Bisbee, jr., were voted for to 
 represent said district in the Forty-fifth Congress. And the question 
 is, which of these gentlemen is entitled to the seat ? According to the
 
 FINLEY VS. BISBEE. 
 
 75- 
 
 returns of the precinct officers of the several counties in said district the 
 vote was as follows : 
 
 Counties. 
 
 * 
 
 1 
 
 I 
 
 i 
 
 
 
 1 
 
 
 1,255 
 
 1,972 
 
 If 
 
 Baker 
 
 238 
 
 143 
 
 
 
 111 
 
 56 
 
 
 Bradford 
 
 706 
 
 199 
 
 
 Cli.v 
 
 315 
 
 126 
 
 
 
 901 
 
 717 
 
 
 Doval . 
 
 1 468 
 
 2,331 
 
 4 
 
 Dade 
 
 5 
 
 8 
 
 
 
 614 
 
 329 
 
 
 
 1 082 
 
 1 521 
 
 
 Marion 
 
 962 
 
 1,548 
 
 
 
 670 
 
 79i 
 
 
 Orange 
 
 926 
 
 194 
 
 
 Patnnm 
 
 617 
 
 579 
 
 
 
 629 
 
 456 
 
 
 Saint John's 
 
 508 
 
 331 
 
 
 Voluoia ... 
 
 474 
 
 172 
 
 
 
 
 
 
 Total vote for each 
 
 11, 481 
 
 11,476 . 
 
 
 
 
 
 
 This return was acted upon by the canvassing-board of each county 
 and the State board of canvassers. And after making several changes, 
 which are not necessary to be mentioned here, the certificate of election 
 was issued to the contestee, and he was sworn in and now occupies the 
 seat in this House from the second district of Florida. W 1 ^ 
 
 The contestant within the legal time filed his protest and notice of 
 contest, averring that the board of State canvassers had been guilty of 
 gross frauds in canvassing the votes of said Congressional district, mak- 
 ing up false statements by which the votes of said counties were, or some 
 of them, falsely stated, and that the certificate of election was wrong- 
 fully given to the contestee, &c. 
 
 These averments need not be noticed by your committee, as they do 
 not affect the merits of the case which is now under consideration. The 
 prima-facie case having been settled by the House, the committee has 
 nothing to do with the certificate ; but the contestant makes averments 
 in his notice of contest which reach the merits of the case before us, 
 the substance of which we will hereafter give, not wishing to incumber 
 this report with a copy of them in full. The notice of contest and the 
 answer thereto are not as carefully drawn as they should have been, but 
 in the opinion of your committee the allegations therein are sufficiently 
 broad and specific to embrace all the evidence in the record which your 
 committee deem necessary to consider in reaching a correct decision on 
 the merits. 
 
 The substance of the allegations in the notice of contest which we con- 
 s.der material may be briefly stated as follows: 
 
 1st. That the returns of the election at the precinct of Archer No. 2, 
 in the county of Alachua, in said Congressional district, were forged and 
 false ; that about 219 votes were falsely and fraudulently added to the 
 vote of contestee by the election officers of said precinct and returned, 
 which were canvassed and counted by the county and State boards of 
 canvassers. 
 
 2d. That the election officers who conducted the election at Archer 
 precinct No. 2, in Alachua County, in said district, were guilty of fraud 
 in conducting said election, and made false and forged returns of the 
 same, thereby making it impossible to arrive at the true vote of said pre 
 cinct, and demanding that the vote of said precinct be excluded.
 
 76 DIGEST OF ELECTION CASES. 
 
 3d. That the election officers, in canvassing the vote for Congress in 
 said district, illegally and wrongfully excluded therefrom all the votes 
 cast at each of the precincts of Darbyville and Johnson ville, in the 
 county of Baker, and demands that they be counted. 
 
 4th. That the election officers, in canvassing the vote for Congress in 
 said district, illegally and wrongfully excluded therefrom the entire poll 
 at Jasper precinct No. 2, in Hamilton County; that the true number of 
 votes cast at said precinct were 504, of which 320 were cast for contest- 
 ant, and 184 for contestee, and contestant demands that the same be 
 counted. 
 
 5th. And contestant asks that a true count of all the votes be made 
 as far as the same can be done under the evidence, and insists that if 
 this is done it will entitle him to the seat. 
 
 The contestee in his answer sets up a general and special denial, 
 and avers, by way of counter charges, threats, intimidation, violence, 
 and repeating at various polls in the district upon the part of tin 
 political friends of the contestant, and also that a large number of 
 illegal votes were cast for contestant by non-residents, persons con- 
 victed of crime, minors, non-registered persons, and foreign-born persons, 
 who did not at the time of voting present their certificate of natural- 
 ization, or a certified copj* thereof, or a duly sealed and certified copy of 
 their declaration of intention to become citizens of the United States. 
 
 Your committee, after this summary of the pleadings, will examine 
 the questions of law and facts involved in the issues, and, as the tabu- 
 lated statement given above arranges the counties in alphabetical order, 
 your committee will consider the questions arising in the counties in 
 the same order; and, 
 
 1st. As to Alachua County, Archer precinct No. 2: It is alleged by the 
 contestant that the election returns from this precinct should be rejected, 
 and this we believe is conceded by contestee, for the reason that said re- 
 turns were forged, and do not show the true vote. The returns from this 
 precinct, made by its officers, therefore, are to be considered out of the 
 case. 
 
 The contestant further alleges and insists that not only the returns 
 of this precinct must be rejected, but that the entire vote of the same 
 must be excluded from the count, for the reason that the evidence is 
 not such as to enable your committee to determine correctly what the 
 true vote at this precinct was. But he insists further that if the com- 
 mittee conclude that the vote of said precinct should be counted, in 
 that case the vote must be counted as follows : 
 
 For contestee 180 
 
 For contestant 141 
 
 Contestee's majority 39 
 
 Because he claims that the evidence tends more strongly to support 
 this conclusion. Your committee are fully aware of the importance of 
 the decision upon these questions, for upon it hinges the final judgment 
 in this case. The evidence in regard to this poll is very voluminous, 
 -covering nearly 300 pages of the record, the result of the examination 
 of over 300 witnesses of the parties. It being conceded, as wo have 
 already said, that the returns must be thrown aside, on the ground that 
 they are false and forged, and your committee agreeing with that view, 
 we are compelled to look to the other evidence in the case, in order to 
 ascertain if possible what was the true vote. If the true vote can be 
 ascertained with reasonable certainty, it must be counted. If it cannot 
 be so ascertained and determined, then the entire vote of the precinct
 
 FINLEY VS. BI8BEE. 77 
 
 should be thrown out, and nothing counted for either contestant or 
 contestee. 
 
 The evidence proves that Green R. Moore, K. H. Black, and Floyd 
 Dukes were the inspectors, and Thomas H. Vance the clerk, of the 
 election held for Congress at Arcber precinct No. 2, in Alachua County. 
 
 Green R. Moore testifies that there was a poll-list kept, and thinks 
 the names of all who voted were put down on the list; says Vance kept 
 it, who was clerk ; says he was present when the polls were closed, and 
 says that there was a paper there which was signed by the inspectors in 
 blank for the returns ; it was not filled out when signed. lie says they 
 counted the votes, but got in a hurry, as it was late, and did not iill up 
 the returns with the number of the votes, but just signed the blank 
 return. Does not know whether the return so signed was ever filled up 
 or not. He says Thomas H. Vance took charge of all the papers. He 
 took all the papers under his arm, among them the returns of said poll. 
 He says the ballots were first strung on a string and then said Black 
 corrected them. lie, witness, held the ballots up and Floyd Dukes 
 strung them. They were then put in the ballot-box and left strung. R. 
 H. Black locked the box and gave him, witness, the key, and took charge 
 of the box. The returns were not put in the box. Not certain the box 
 was locked. Box fastened together, he thinks, with screws. He says 
 that after the poll was closed and the ballots counted the result was 
 publicly announced by R. H. Black. He is certain of this fact. Black 
 announced that Stearns had received 180 votes, and that Drew had re- 
 ceived 136 votes. Stearns was the Republican candidate for governor, 
 and Drew the Democratic candidate. He says that Black announced 
 that there were 318 votes in all cast, buthe says 2 of these were destroyed 
 because they looked like two tickets were folded together. He says that 
 Black announced the true vote and gave it to Samuel C. Tucker. Says 
 he is positive that there was not more than 318 votes polled there that 
 day. This number did not agree with the number of ballots strung and 
 counted and put in the box. Black counted 277 tickets in all that were 
 put in the box. Says the result was ascertained by counting the poll- 
 list and tally sheet kept by the clerk, Vance The poll-list and ballots 
 did not agree. The poll list showed 318 names, two of which were not 
 counted because two of the ballots were folded together, and there were 
 only 277 ballots. Ballots were counted as they stood on the poll-list. 
 Says Black and Vance took the returns and ballot box to Black's house, 
 lie lived in Archer. " When I next saAv them after they left the voting 
 place, 1 saw them at Black's house. They kept the returns and box 
 there from about 11 o'clock p. m. until next morning about 3 or 4 o'clock, 
 when they took them to Gainesville, the county seat of Alachua County. 
 1 went with them." When they got toGainesvillewitnesssayshesti pped 
 at a fire in Court House Square, and Black took the box off in the di- 
 rection of Capt. L. G. Dennis's house in Gainesville. After this witness 
 heard Dennis at his own house tell Black to take the box away, as there 
 had been one box thrown out by being at his house. This was between 
 nine and ten o'clock the morning after the election. Black got to Den- 
 nis's just at daylight. Witness says Dennis was a noted Republican 
 politician at the time, and was a candidate for the State legislature. 
 Witness says the key to ballot-box was a common key, easily duplicated- 
 Key hole not sealed. They had eight keys that fitted the box. Says that 
 Black and Dukes went off from the polls (luring the voting and he, wit- 
 ness, and Vance staid. When they returned witness and Vance went 
 out for dinner together. Witness says that Dukes could neither read
 
 .78 DIGEST OF ELECTION .CASES. 
 
 aor write; that be voted the Democratic ticket. Witness, Black, ami 
 Vance voted the Republican ticket. 
 
 This is the substance of this witness's statements. (See Record, pp. 
 32-88.) 
 
 Samuel T. Fleming testifies that he stood at the polls at Archer, No. 
 2, and took down the names of all persons who voted as they voted ; 
 says he was there all day except about 20 minutes when voting was sus- 
 pended for dinner ; says he kept a list of all who voted from the out- 
 side of the room; the box was inside the room near window; sent 
 the original list kept by him to secretary of state of Florida, " but have 
 a correct copy of it with exception of one name"; and here witness ex- 
 hibited the copy, which was made part of his deposition, without objec- 
 tion. This list contains the names of 305 persons who, he says, voted ; 
 says he went there to take down the names of all persons who voted at 
 that poll; did it at request of Democratic executive committee, and is 
 positive he took down on his list the name of every person who voted 
 from outside room that day; says he was well acquainted with the vot- 
 ing population who resided about the poll, and with the exception of four 
 or five knew each man personally who voted there on November 7, 1876; 
 says he knows that 500 votes were not polled at that poll that day ; says 
 none voted from inside of house but the inspectors. (See Record, pp. 
 39 to 93.) 
 
 Wade A. Gieger says he was at Archer precinct, No. 2, on the day of 
 election; there before polls opened; there all day except during recess 
 for dinner, and once after that about 20 minutes. Saw Fleming stand- 
 ing near the window taking down the names of the persons voting ; was 
 there when polls closed. Heard the announcement for governor but not 
 the other candidates; R. H. Black announced from the window, in an 
 ordinary tone of voice, that Stearns had received 180 and that Drew had 
 received 136 votes Witness went to Black's house and tried to get, 
 Black to take the box back to the house where the voting had been done 
 and have it guarded with box No. 1; he feared Black would tamper 
 with the ballots. Black told him before the election that he intended 
 to pack the box if he had a chance; Black then thought witness was a 
 Republican as he (witness) had been attending Republican meetings 
 and had avoided Democratic meetings and he was understood to be a 
 Republican; was well acquainted with Black, and thinks he was capa- 
 ble of tampering with a ballot-box. 
 
 George Blick testifies that he went to Archer, No. 2, on the day of 
 election; was not there all the time. "I was inspector at box No. 1, 
 which was in same bujlding with box No. 2, being in the other end of 
 the building; was at box 2 two or three times during the day, perhaps 
 oftener." When they got through counting Black or Vance announced 
 the vote; the announcement was that Stearns, for governor, had re- 
 ceived 180 votes, and that Drew had received 136 votes, and then wit- 
 ness went into the room where poll 2 was, and asked the inspector to 
 let him see the tally-sheet; they then told witness that Stearns had re- 
 ceived 180 votes and Drew 136 votes, and that there was very little dif- 
 ference between their vote and the other candidates. Black and Vance 
 took box off to Black's house ; witness went to Black's house that night 
 and asked him to let witness put box No. 1 with his ballot box No. 2 in 
 his house, and let witness sit there with him and guard the boxes until 
 morning, when they would carry them to Gainesv ille. " He refused, and 
 said he could take care of his box if I (witness) could of mine"; witness 
 then left. Witness was at box No. 1 when announcement was made, in 
 suine building as box No. 2; that"? was just a partition between and two
 
 FINLEY V8. BISBEE. 79 
 
 planks were off of that, and the door between the two rooms was open. 
 The building was about 36 feet long. (See Record, pp. 98 to 100.) 
 
 Irving E. Webster, clerk of the circuit court of Alachua County, tes- 
 tified that the ballot box of Archer, Xo. 2, was delivered to him about 
 noon the next day after the election ; the key was delivered early in the 
 morning. (Record, pp. 103 to 109.) 
 
 Samuel C. Tucker testified that he was sheriff of Alachua County, 
 and resided there twenty years; spent most of his time on election day 
 at Archer, No. 2; was present when tally-sheet was being made and. 
 when it was added up; was near enough to see all that was done; did 
 not keep a regular tally sheet of his own, but counted over the tallies 
 with Vance and put down in a memorandum of his own the total foot- 
 ings-up of the tallies. While doing this witness would ask Vance if 
 each result put down by him on this memorandum was correct, and each 
 tame Vance would say yes, they agreed with his (Vance's) own figures. 
 Witness said he did not have the original memorandum, but had a true 
 oopy made by himself, which he produced, and then was requested to 
 state its contents, which he did, as follows: 
 
 As shown by this memorandum of mine : For governor, Drew received one hundred 
 and thirty-sis (I'M) votes; .Steams, for governor, received one hundred and eighty (180) 
 votes; for lieutenant-governor, Hull received one hundred and forty-one (141) votes; 
 Montgomery, for lieutenant-governor, received one huudr. d and seventy-six (176) 
 votes; Fiuley, for Congress, iv.ri\i<l one hundred and forty-one (141) votes; Bisbee, 
 for emigres?., received one hundred and eighty (180) votes; King, for State senator, 
 received one hundred and thirty-six (136) votes : Walls, for State senator, received one 
 hundred and eighty-one (1H1) votes; for assemblyman to State assembly, Sparkman, 
 Democrat, received one hundred and thiity-ei^ht (138) votes; Dennis", Republican, 
 received one hundred and eighty (180) votes; Dudley, Democrat, received one hun- 
 dred and forty-one (141) votes; Cessna. Republican, received one hundred and 
 seventy-eight (17-) votes; for Presidential electors, the Democratic electors received 
 each of them one hundred and forty-one (141) votes, the Republican candidates for 
 Presidential electors each received one hundred and se\enty-eight (178) votes. 
 
 Witness says that after footing up the tally sheets Black announced 
 the result through the window to the crowd outside. The announce- 
 ment was made in a loud tone of voice as to vote for Stearns and Drew, 
 particularly loud as to Steams; he announced that Stearns had received 
 180 votes and Drew UU> rotes. Witness requested him to make an an- 
 nouncement as to the other candidates, but he replied that it was not 
 necessary as there was only a difference of three or four votes. After 
 the counting was over the hole in the box where the ballots were put 
 in was sealed up; box was not sealed over the key-hole or anywhere 
 else. In about fifteen minutes after the canvass was over witness saw 
 the box at Black's house; it was not then sealed anywhere else than 
 on top. Witness went to Black's house to get him to seal the box more 
 securely and over the key-hole, and also between the body and the 
 cover or lid of the box, as there was opening enough there with the box 
 locked to insert ballots through, but Black refused to seal it any more 
 than over the hole in the top. Black was the inspector who was to take 
 the box to Gainesville, the county seat, to make the returns. (Record, 
 pp. 109 to 11 2.) 
 
 Floyd Dukes testified that he was one of the inspectors of election at 
 Archer, No. 2, on November 7, 1876; he strung most of the ballots on 
 a string when they were counted. Green R. Moore strung some of 
 them; they were all strung by witness and Moore. After they were 
 strung they were counted over by Black and put back in the ballot-box, 
 R. H. Black, one of the inspectors, read off names from the ballots as 
 they were first taken out of box, and Vance, the clerk, kept the tally 
 sheets. After the counting was all over, Black or Vance, one, an
 
 DIGEST OF ELECTION CASES. 
 
 nouuced that Steams had got 180 votes and Drew 136 votes; there was 
 something said about the other candidates getting about the same. as 
 governor, but witness does not recollect just what it was. Black told 
 witness that he had to sign a paper, and he wrote witness's name, ho 
 supposes, and witness touched the pen to make his cross mark. Wit- 
 ness says he thought that the paper he signed at the time did show 
 that Stearns had received 180 votes, and that Bisbee had received about 
 the same, for Congress. First heard from Vance, the clerk, that vote 
 for Stearns was 180, and 136 for Drew. (See Eecord, pp. 112 to 114.) 
 
 Jesse I. Griffin testifies that he was at Archer precinct, No. 2, on the 
 election day, November 7, 1876. Saw Samuel Flemming there that day, 
 at the polls, taking the names of persons as they voted. He com- 
 menced as soon as polls weie opened; be was writing names on blank 
 sheefc paper with pencil. He left and went to dinner between 12 and 1 
 o'clock. Distance about thirty yards. Witness went with him. He 
 was gone about twenty minutes. Witness thinks when he left he turned 
 the paper and pencil over to Mr. Edge. When Flemming returned ho 
 took the paper and pencil again. Thinks they took recess for dinner ; did 
 not have any announcement to that effect. Mr. Edge did not take down 
 the names of any one while Flemmiug was at dinner. (See Eecord, pp. 
 116 to 118.) 
 
 Frank Edge testifies that he was at Archer, No. 2, on election day, in 
 1876; was at this poll the greater part of the day. Saw Samuel Flem- 
 ming there. He was keeping a list of those who voted. He left the 
 poll about one o'clock and went over to his mother's to dinner. Before 
 he started he handed witness a piece of paper and pencil and told him 
 that if any person voted while he was at dinner to take down his name; 
 he was absent, after handing witness the paper, some fifteen or twenty 
 minutes. There were no votes cast while Flemming was gone. Wit- 
 ness heard the announcement of the result of the vote. It was made by 
 Sam Tucker and R. H. Black. They announced that Stearns received 
 180 and Drew 136 votes. (Record, pp. 123 to 125.) 
 
 The foregoing is the substance of the oral evidence given by the prin- 
 cipal witnesses tending to prove that the vote at Archer precinct, No. 
 2, was, for contestant, 141 votes and for contestee 180 votes; and 
 
 The following is the substance of the oral evidence given by the prin- 
 cipal witnesses tending to rebut the foregoing evidence and prove that 
 the theory that contestant got 141 votes at said precinct and the con- 
 testee got 180 votes is not correct. 
 
 Thomas H. Vance testified that he was clerk of the election at box No. 
 2, in Archer, at election on November 7, 1876; voted there the straight 
 Republican ticket; was there from the time the polls were opened until 
 the result was known, except about ten minutes when they took recess 
 for dinner. Did not count the ballots, but kept the tally-sheet. When 
 the polls were closed the ballots were counted. Witness counted the 
 names on his poll list; counted 535 names; counted the votes cast for 
 eac.h candidate. Black counted the ballots, and witness asked him how 
 many ballots he found. He said 535, which he had carefully counted 
 over twice. Witness says that at the close of the count an announce- 
 ment was made of the vote; th;it the Republican candidates had 399 
 votes and the Democratic candidates had 136 votes. This announcement 
 w is made two or three times at the window. There was a certificate of 
 the result made, and witness says he signed it. Then follows this ques- 
 tion and answer: 
 
 Q. Toll me, if you can, what vote that certificate of result showed for each candi- 
 date f A. For Presidential electors, Frederiok C. Humphries received three hundred
 
 FINLEY VS. BISBEE 81 
 
 and ninety-nine votes; Charles Pearce received three hundred and ninety-nine votes; 
 William H. Hoklen received three hundred and ninety-nine votes; Thomas \V. Long 
 received three hundred and ninety-nine; Wilkinson Call received one hundred and 
 thirty-six votes ; R. B. Hilton received one hundred and thirty-six votes: Kobert Bul- 
 lock received one hundred and thirty-six votes; and J. E. Youge received one hundred 
 and thirty-six votes. For members of Congress, second Congressional district, Horatio 
 Bisbee. .jr. , received three hundred and ninety -eight votes, and Jesse J. Finley received 
 one hundred and thirty-seven votes. For governor. Murcellus L. Stearns received 
 three hundred and ninety-nine votes; George F. Drew received one hundred and 
 thirty -six. For lieutenant-governor, David Montgomery received three hundred and 
 ninety-seven votes, and Noble A. Hull received one hundred aud thirty-eight. For 
 State senator, Josiah T. Walls received three hundred aud ninety-nine votes, and 
 Thomas F. King received one hundred and thirty-six. For members of the assembly, 
 L. G. Dennis received three hundred and ninety-eight; W. K. Cessna received three 
 hundred and ninefy-sevt-n ; P. B. Dudley received one hundred and thirty-eight; and 
 J. M. Sparkman received one hundred and thirty-seven. 
 
 Says the inspectors, R. H. Black and Green R. Moore, signed their 
 names to the first return. Black signed Floyd Dukes's name for him, 
 and Dukes made his mark, for he could not write. The second return R. 
 H. Black signed first .and asked Green R. Moore to sign his, and Moore 
 said, "Black, sign it for me, for, damn it, my finger is sore." Black 
 said to Floyd Dukes, u Daddy, I'll sign this for you you can't write," 
 which he did, and Dukes made his mark. Witness says that he has 
 seen the list kept bv Flemmiug at the poll on election day at Archer, 
 >"o. 2, and had examined it. Said he saw persons vote at that poll on 
 election day whose names are not on the list, aud names Frank Dausy, 
 Arch. Brown, Jerry Allen, Jesse Brown, and one other by name of 
 Cooper. On cross-examination by contestee, this witness says he is 
 positively certain that the number of votes stated by him in his exami- 
 nation-in chief is correct; then these questions aud answers follow: 
 
 Q. Are you positively sure that you counted five hundred and thirty-five names on 
 the poll-list, as yon have testified in your exaiuinatiou-iu-chief f A. I aui ; I counted 
 it twice t<> b- certain. 
 
 Q. Are you positively certain that the number of votes, as stated by you in your 
 oxaiuiuatiou-in-chief a.s having beeu given to each candidate, and as the result of said 
 election at box No. ~2, Archer, was the true result of said election at that place, and 
 that the number of votes so stated by you were certified by the inspectors of the elec- 
 tion at said box, and by yourself as clerk, as you have stated in your examination-iu- 
 chief ? A. No : I can't sny that, for there was a mistake iu making up the returns in 
 the vote for member of Congress and for State senator ; all the rest, to the best of iny 
 knowledge and belief, are correct. 
 
 Q. Were the number of votes stated by you in your examination-in-chief to have 
 beeu given to the difierent candidates, the number set out iu the certificate of elec- 
 tion, given by the inspectors with yourself as clerk ? A. There was a mistake as to 
 member of Congress and State senator. 
 
 Witness then says that but one announcement was made at the poll, 
 and that Black made, aud which he has already stated ; says he does 
 not know whether Frank Dansey's name was on the poll-list or not, for 
 he don't know whether the poll-list is in existence or not ; says Black took 
 charge of the box and Moore of the key; says he accompanied Black 
 while in charge of the box ; went with him to his house, and from there 
 to Gainesville; went by a special train. The regular train was due at 
 Archer at !>i o'clock a. m., and the special train went up to Gainsville 
 about 2.J or 3 o'clock a. in. Was with Black all the time. Says they 
 (witness, Black, and Moore) arrived at Gainesville about 4| o'clock, or a- 
 little after, and went to the court house. Found clerk's office locked. 
 Then they went from there to Vance's house in Gainesville, and staid 
 there with ballot-box until clerk's office opened. After office opened, 
 witness went with Black, and he delivered it to the clerk of the court; 
 and witness is not certain whether he or Black handed him the returns- 
 Clerk said Moore had not delivered to him the key. Says. Ue was. not 
 H. Mis. 58 6
 
 82 DIGEST OF ELECTION CASES. 
 
 with Black all the time ; left him in witness's house twice to go to- see it 
 clerk's office was open. Thinks Black left him at Black's house when 
 Black went to get some whisky. Mr. Harvard and J. R. Miller wanted 
 Black to take the box and leave it with box No. 1 till next morning, 
 until the train came along. Black refused to do so. Says the box nor 
 the returns were tampered with while witness and any of the in- 
 spectors were together, from the time the polls closed until delivered to 
 the clerk of the court. Witness says there was a mistake in the returns 
 of the vote for Congressmen. Horatio Bisbee, jr., received 398 votes, 
 and on the returns it is 399; Jesse J. Finley received 137 votes, and on 
 the returns it is 141 votes ; which, he says, makes a difference of 4 votes 
 in favor of Fiuley which ought not to be there. Says he had left the 
 room where the ballot-box was, about ten minutes before the train came, 
 to go in to an adjoining room to go to bed, and was in the act of going 
 to bed when he heard the train coming. Witness and Black took ballot- 
 box to the clerk's office and delivered it to the clerk. Box was placed 
 under witness's bed while at his house. He says that the parties who 
 wanted Black to take the box where box No. 1 was and stay there with 
 it, also wanted Black to let Mr. Blitch bring box No. 2 up to Black's 
 house and leave it with Black, and have Blitch, who was inspector of 
 box No. 1, stay with him. Black said he had nothing to do with box 
 No. 1 ; the inspectors of box No. 1 must take care of their own box, and 
 he would be certain to take care of box No. 2. (Record, 328 to 334.) 
 
 R. H. Black testifies that he was one of the inspectors of the elec- 
 tion at Archer, No. 2, on November 7, 1S<8; was present all day at the 
 polls excepting the time he went to dinner, which was about ten min- 
 utes; was also absent at box No. 1, in another part of the building, 
 about ten minutes, in company with Mr. Vance, the clerk, leaving Mr. 
 Dukes and Moore at box No. 2. Dukes was a Democrat, Mr. Moore a 
 Republican. Moore enjoyed the confidence of the Republican leaders of 
 the county. The vote at Archer precinct had always been largely 
 Republican. The Republican vote in 1872 was over 200 and the Demo- 
 cratic vote was 40. The Democratic vote in 1874 was not over 30. 
 Republican vote was nearly 300. The Republican vote has gradually 
 increased since witness lived in Archer. A large body of government 
 land in that section has been homesteaded by colored people. Repub- 
 lican managers of the county anticipated a large increase, hence they 
 established two boxes where there had been but one at Archer. Their 
 anticipation in that respect was realized. Republicans were well organ- 
 ized. There were in the different settlements near Archer five Hayes 
 and Wheeler clubs. The roll of these clubs in the aggregate numbered 
 about 7UO, all of whom intended to vote the Republican ticket. At the 
 election, witness says at box No. 2, on November 7, 1876, 399 Repub- 
 lican to 1-0 Democratic votes were polled. Total vote 535. Was sur- 
 prised to find the number of Democratic votes in the box, as he had 
 observed the vote through the day. Could not recollect over ten Dem- 
 ocrats who had voted through the day at box 2, and there were not 
 more than 20 Democrats living in the neighborhood, and most of them 
 had voted at box 1. He says he noticed no irregularity, illegality, or 
 fraud; saw the ballots taken from the box and assisted in the count, 
 and announced the result as stated above. The return was made in 
 accordance with the vote found in the ballot-box. It was signed by all 
 the inspectors and the clerk ; no objection made. Moore and Dukes did 
 not count the vote. They did not count the names on the clerk's list, 
 nor number checked on poll-list. There was a Democrat present by 
 the name of Flemmiug, who pretended to keep a list of the names of those
 
 FIXLEY VS. BISBEE. 83 
 
 who voted. He, Flemming, was not present at poll during entire day ; 
 was absent twice to. witness's knowledge. Witness never said at any 
 time that the vote was different from that announced at the polls. Says 
 Democrats attempted to obtain possession of the ballot-box from him 
 after the election was over. They demanded it from him in his house. 
 The partj* who demanded it consisted of about nine or ten persons. The 
 box was in his keeping ; delivered it the following day and got a receipt 
 for it. Moore had the key. 
 
 After the return was rendered, and before the county canvass took place, I was ap- 
 proached by Dr. E. D. Carew, a prominent Democrat in the precinct of Archer, who 
 asked me if 1 didn't want to sell a piece of laud that I owned at Archer. I told him I 
 did. He asked what it was worth. I told him 300. He said he knew of a gentleman 
 that wanted to buy it. He took his pencil from his pocket and wrote some ngnres on 
 a newspaper, which I found to be an otter of 600 for my place, on condition that I 
 would join Moore in his statement that the vote cast was at Archer, box Xo. '2, as fol- 
 lows: 180 Republican and 136 Democratic. Moore had made such a statement in the 
 form of an affidavit. (Record, 307 to 308. ) 
 
 Irving E. Webster, whose evidence has heretofore been noticed, testi- 
 fies that the box of Archer, Xo. 2, was brought to him by Black on the 
 8th November, 1876. The returns were in an envelope and sealed up; 
 box had a piece of paper over the hole in the cover, and sealed around 
 the edges with sealing-wax ; was also a similar piece of paper over the 
 key-hole ; don't remember whether the poll-list was in the box or not, 
 but it was returned to witness; the registration-list was in the box ; poll- 
 list may have been sealed up with the returns; says the poll-list was 
 extracted from his office between the time of the county canvass and the 
 session of the House committee (meaning the committee of this House 
 who visited Florida during the last session of the Forty-fourth Congress). 
 Kept the poll-list in his safe ; it was an iron safe, and he kept it locked. 
 Did not miss the poll-list until called for bv the House committee. (See 
 Record, 344 to 347.) 
 
 Frank Dauzy testifies that he was at Archer precinct, No. 2, November 
 7, 187G, and was the first man who voted at that poll on that day. (Rec- 
 ord, 230-232.) Three hundred and eight colored persons testify that 
 they voted at this poll, and that they voted the Republican ticket, in- 
 cluding Bisbee. (Record, 130-340.) 
 
 As this committee has already said, the foregoing contains the sup- 
 stance of the oral evidence of the principal witnesses in regard to the 
 vote of Archer precinct, No. 2. We do not desire, however, to be under- 
 stood as saying that there are no other witnesses whose testimony is 
 important ; but, upon the contrary, there are many more witnesses whose 
 statements tend to throw light upon the questions involved. In order 
 to understand the case, the whole of the evidence in the record in regard 
 to this poll must be read carefully and studied. The committee will now 
 call attention to some of the importand questions. 
 
 1st. We will consider the question of fraud on the part of some of the 
 election officers of this precinct. It will be remembered that R. H. Black, 
 Green R. Moore, and Floyd Dukes were the inspectors, and Thomas H. 
 Vance was the clerk, at said poll. That there was fraud committed by 
 way of forging the returns by the officers of this precinct there cannot 
 be any question, and is admitted by the coutestee. But it is necessary 
 to briefly review the evidence in order to come to a correct conclusion 
 in regard to how the vote of the pr%ciuct shall be treated. 
 
 The evidence proves that the election at this precinct was peaceable 
 and orderly so far as the voters were concerned, as much so as usual at 
 such places. After the polls were closed the votes were counted, and 
 the result was determined by the election officers. The ballots were put
 
 84 DIGEST OF ELECTION CASES. 
 
 in tlie box, nml it wns locked, and the key given to Moore and Black, 
 and Vance took the returns or whatever papers, if any, were signed by 
 the inspectors and clerk, and the poll-list and tally-sheets, and took 
 them to Black's house in the village of Archer, but a short distance 
 from the place where the election was held. It must be borne, in mind 
 that it is proven that Black, Vance, and Moore were all Republicans. 
 Soon after it was known that Black and Vance had taken the ballot-box 
 to Black's house the Democrats became alarmed for its safety, and they 
 went, as the evidence shows, and made a request of Black at his house 
 that he take the ballot-box down where box No. 1 was being kept by Mr. 
 Blitch, who was inspector of the election at that box, and whose custody 
 it was then in. But he. Black, scornfully refused to do so. They then 
 requested him to allow Mr. Blitch to take box No. 1 up to his house and 
 place it with box No. 2, and he and Blitch to remain there together in 
 charge of the two boxes until the next morning, and then take the train 
 and take them to Gainesville, the county seat, and make the returns to 
 the clerk. This proposition Black also refused in the same manner as the 
 first. Both these propositions were perfectly fair, and in no way calcu- 
 lated, if an h mest man, to make him feel that his motives were impugned 
 in a matter of so much public importance one upon which the election 
 of a President of a great nation might depend. And if he had been dis- 
 posed to have acted honestly and fairly in his official duty he would 
 have consented to such a fair and reasonable request. But dishonestly 
 intending to carry out his fraudulent and corrupt purpose of forging the 
 returns of Archer precinct, No. 2, he and his equally corrupt and ever- 
 faithful friend and coconspirator in the execution of this crime against 
 the purity of the ballot-box remained alone at Black's house in the sole 
 custody of. this box until about 3 o'clock next morning; when, at this 
 very unusual hour, they took an extra train, which happened by accident 
 to come along at that time, and went to Gainesville to make the return 
 instead of waiting until 9 o'clock in the morning and then take the 
 regular passenger-train, which would have carried them to Gainesville in 
 ample time to make the return and before, in fact, they did make it; for 
 the evidence of the clerk shows it was not made until 12 o'clock that day, 
 and after box No. 1 had been returned by Blitch, who left Archer on the 
 9 train. When they got to Gainesville they pretend to say they went 
 to the clerk's office to make the return, it being but half after four o'clock 
 in the morning, a very unusual hour indeed for men to undertake to 
 transact official business with a public officer; but not finding the clerk 
 in, they went to Vance's house, where he, Vance, resided in Gainesville. 
 This is Vance's statement. And there Black put the ballot-box under 
 the bed, and laid himself across the bed, and perhaps went to sleep in 
 order to its more perfect security, as he claims to have been very watch- 
 ful of it. 
 
 But Green E. Moore, a Republican in good standing, who accompanied 
 Black and Vance on their mission of fraud to Gainesville on their extra 
 night train with the box key in his pocket, betrays these confederates. 
 He swears that Black left him near the court-house in Gainesville, and 
 went with the ballot-box in the direction of the residence of L. G. Dennis, 
 who lived in Gainesville, and who was a leading Republican and a candi- 
 date for the legislature, and who wa very officious in regard to the elec- 
 tion at this poll, as the evidence shows. He was the leading member of 
 the board of commissioners of Alachua County, which, under the laws 
 of the State of Florida, had the power to appoint and did appoint the 
 said Black and Green R. Moore inspectors at said poll, both being Re- 
 publicans, and the third inspector was Floyd Dukes, who was a Demo-
 
 FIXLET VS. BISBEE. 85 
 
 crat. But the evidence shows that he wa,s an old colored man that could 
 neither read nor write, tlms securing the election of a Kepublican for 
 clerk at said poll. And when the election board met and was about to 
 select a clerk, it was found that this faithful Vance was present. He 
 had, by accident, gone all the way from Gainesville, where we have 
 already stated he lived, and Black and Moore at once selected him as 
 clerk. No, this was not accidental, but a part of the fraudulent pro- 
 gramme which had been marked out by L. G. Dennis, Black, Vance, and 
 others, to tamper with the ballot-box at Archer No. 2, in the interest of 
 their political friends. And this they accomplished to the extent of 
 somewhere between two and three hundred votes, by causing their false 
 and forged returns to be canvassed and counted for their political friends. 
 That Black and Vance went to Dennis's house, or saw him the morning 
 they got to Gainesville with the ballot-box and advised with him, your 
 committee have but little doubt, and that his direction was followed in 
 the completion of the perjury and forgery. However this may be, the 
 double crime was committed. The Republican county clerk, with whom 
 the box and returns were placed under the law, swears that all the time 
 the county board of canvassers were canvassing the returns from this 
 precinct, it appeared to him from the face of the returns that fraud had 
 been committed in favor of the Republican candidates. Yet the conuty 
 canvassers, with the fact of forgery being patent upon the face of the 
 returns from this precinct, counted the votes thus returned through this 
 perjury and forgery. 
 
 Another fact not to be overlooked is that the Congressional commit- 
 tee, w r hich was sent to Florida just before the so-called electoral count, 
 searched for these returns of this precinct, but they could not be found. 
 The clerk of the circuit court, in whose custody they were placed, swears 
 that this was the first knowledge he had that they were missing. He 
 says, however, that he kept them in an iron safe, and carried the key, 
 and still he pretends to say that he does not know what became of them. 
 At all events they are not to be found; and in the opinion of your com- 
 mittee they were destroyed by some of the conspirators to cover up their 
 crime. The poll list, tally-sheet, and the return belonging to said poll 
 are gone. 
 
 Your committee is clearly of the opinion from the evidence that the 
 election at this poll is tainted with frauds, the returns false and forged, 
 whereby they showed that contested got some two or three hundred 
 more votes than were actually cast for him, which were canvassed and 
 counted for him by the returning-boards. 
 
 Your committee is therefore compelled to go behind these fraudulent 
 returns and examine the evidence in the case, and ascertain the true 
 vote, if it can be done, from the evidence. 
 
 When the polls were closed and the votes counted, several witnesses 
 testify that Black publicly announced from the window through which 
 the ballots were received that Stearns, the Republican candidate for gov- 
 ernor, had received 180 votes, and Drew, the Democratic candidate, had 
 received 136 votes, and that the other candidates, Republican and Demo- 
 cratic, did not differ from their respective candidates for governor more 
 than three or four votes. This is one of the theories presented by con- 
 testant; and it is argued with muce force, and we' must concede that 
 if the vote of this precinct is to be counted at all, the conclusion that the 
 contestee received 180 votes and the contestant received 141 is the most 
 reasonable one which can be drawn from the evidence. 
 
 Green R. Moore, one of the inspectors, swears that there were, according 
 to the tally-sheets and the poll-list, 318 votes cast at this poll, and that
 
 86 DIGEST OF ELECTION CASES. 
 
 two of those being folded together were destroyed, leaving but 316; and 
 he is supported substantially by Floyd Dukes, Gergeu Blitch, Tucker, 
 and Edge; they say that Black publicly announced the votes as stated 
 by Moore. 
 
 *Blitch testifies that the announcement made by Black of the result 
 agreed with the tally-sheets kept by Vance, the clerk. 
 
 Tucker, who was sheriff of the county at the time, swears that he 
 counted over the tallies with Vance, and put down the total footings of 
 the vote for each candidate in a private memorandum of his own, and 
 as he did so, would ask Vance if each was correct, and Vance answered 
 it was. And Tucker makes a copy of this memorandum a part of his 
 evidence, which shows that contestee received 180 votes and contestant 
 received 141. 
 
 Flemming swears that he stood at this poll with pencil and paper all 
 day, except about twenty minutes when he was at dinner, and took 
 down the names of every person who voted from the outside the room 
 occupied by the election board. He says that no voting was done while 
 he was absent, and he is corroborated in this statement by Edge, with 
 whom he left the pencil and paper while he went to dinner, with instruc- 
 tions to take down the names of all who voted during his absence. 
 Edge says no one voted during Flemming's absence. Flemming also 
 swears that he was acting under the direction of the Democratic exec- 
 utive committee in taking down the names; that he was requested to 
 attend the poll and do so. And he says that there were but 305 votes 
 polled from the outside of the room in which the election was held. If 
 to this is added the four votes which it is reasonable to suppose were cast 
 by the officers of election in the room, we have 309 as the total number 
 according to his evidence. He also makes a copy of the list of names 
 so kept by him a part of his evidence. 
 
 This evidence, together with the other evidence in the record which 
 supports it, if standing alone, would strongly tend to sustain the theory 
 that there were about 318 votes cast, or that contestee received 180 and 
 contestant received 141 votes. The vote, even under this theory, cannot 
 be exactly ascertained, if there was no other evidence in the record in 
 regard to the number. 
 
 But Vance, the clerk, swears that he kept the tally-sheet, and that 
 there were 535 names on the poll-list, which he carefully counted twice, 
 and that an announcement was publicly made that the Republican can- 
 didate received 399 votes, and the Democratic candidate had received 
 136 votes. He says this announcement was made two or three times at 
 the window. Then a certificate was made of the vote and signed by the 
 inspectors, and by himself as clerk, and that this certificate showed that 
 contestee received 398 votes, and contestant 136 votes, and then testifies 
 as to the manner in which the duplicate certificates were signed (see his 
 ev.). He afterwards qualifies this statement by saying that there was a 
 mistake in the certificate as to the vote for Congress and State senator, 
 and that all the rest were correct. Then he says that but one announce- 
 ment was made at the polls, and that was made by Black, contradicting 
 his first statement upon this point. Again, he says the returns for Con- 
 gress showed that Bisbee received 399 votes and Finley 141, but that 
 this was a mistake; that their true vote was 399 and 137, respectively, 
 which he says makes a difference of 4 votes between the true vote and 
 the vote as shown by the returns. 
 
 Black swears that he was one of the inspectors of this election; that 
 the Eepublican vote was 399 and the Democratic vote was 136; total
 
 FINLEY VS. BISBEE. 87 
 
 vote, 535; and that he announced that as the vote, and that the return 
 was made iu accordance with the vote found in the ballot-box. 
 
 Frank Danzy swears that he was the first man who voted at that poll ; 
 that he voted at the window from the outside. It will be observed that 
 Danzy's name is not on Flemming's list. Danzy is corroborated by other 
 witnesses on this point, which tends to weaken the force of Fleinmiug's 
 list. 
 
 Three hundred and eight colored witnesses swear that they voted the 
 Republican ticket at that poll. Their evidence shows that but very few 
 of them could either read or write, most of them making their cross to 
 their depositions. They had. of course, to rely upon others for informa- 
 tion as to the kind of tickets they voted. They may have been deceived, 
 many of them, or they may have been induced, some of them, to make 
 the statements under oath which they did; it is not for your committee 
 to say ; but it is enough to say that their evidence greatly tends to in- 
 crease the doubt as to what is the true vote of this precinct. It cannot 
 be true that there were 535 votes polled at this precinct or box, and the 
 statements of these last-named witnesses are in harmony with no other 
 theory of the case. The evidence shows that there was but one box or 
 place of voting at Archer until 1876; that box No. 2 was established 
 for the election of that year for the first time. It further shows that the 
 entire vote in 1874 at that precinct was only 318, just two votes more 
 than Moore says was counted by the inspectors at box No. 2 in 1876; 
 and if you add the votes cast at box No. 1 in 1876, about which there is 
 no controversy, to the vote at box No. 2, as stated by Moore, you have a 
 total vote of 468 at this precinct in 1876, an increase of just 150 votes 
 quite a large increase for two years. But if you take the statements of 
 Black and A r ance as to what the vote was at box No. 2 and add that to the 
 vote of box No. 1, yon have a total vote of 690 in 1876 a net increase over 
 the vote at that precinct in 1874 of 372 votes, more than two to one ; a very 
 extraordinary increase in so short a time for a country precinct. And 
 this increase is not satisfactorily accounted for by the evidence. Black 
 undertakes to explain it by saying that there was a large body of gov- 
 ernment land in the neigborhood which was homesteaded by colored 
 people since 1874. That is a good way to account for the increase; but 
 he is contradicted in this statement by Danzy and several other wit- 
 nesses, who swear that there had not been but very little increase in the 
 population since 1873. This theory of the case and the evidence of Black 
 fall to the ground when measured by the evidence. The theory of cou- 
 testee, that the Democratic vote at this precinct was greatly in excess of 
 what it should have been, and must, therefore, have been fraudulent, is 
 not well founded, as will be seen when the evidence is carefully ex- 
 amined. Indeed it does not take a very careful examination; for if 
 fraud was committed at this precinct, and there is no doubt on that 
 point, it was committed by coutestee's political friends, and no one 
 would hardly believe that they would have committed it iu favor of his 
 political opponent. His political friends had full and complete control 
 of the election at this poll. 
 
 Black swears that he was greatly surprised at the large number of 
 Democratic votes at this precinct. He says that the Republican vote 
 iu 1872 was over 200, and at the same election the Democratic vote was 
 40. The contestee, in his printed argument, pa<re"25, corrects this error 
 in Black's evidence, and tixes the Republican vote at 100 and the Demo- 
 cratic vote at 40. Black says that in 1874 the Democratic vote was not 
 over 30, the Republican nearly 30i>. In this he is nearly correct. He says 
 that the increase in the republican vote was anticipated, and for that
 
 88 DIGEST OF ELECTION CASES. 
 
 reasou box No. 2 was established, not anticipating an increase in Demo- 
 cratic votes. And the contestee adopts the false theory that many per- 
 sons have advocated recently that it is hardly possible for a colored 
 voter to vote the Democratic ticket. But this theory is greatly at fault 
 so far as this precinct is concerned, for it appears from the evidence that 
 at box 1, in 1876, the Democratic vote was 98, aud the political friends 
 of the coutestee having complete control of box No. 2, as we have already 
 said, returned for contestant, a Democrat, 141 votes, making a total 
 Democratic vote of 239 at that place as against 25 two years before. It 
 is therefore argued by the contestee that the Democratic vote at box 2 
 was greatly increased by fraud. 
 
 It is hardly to be supposed that the political friends of the contestee 
 would commit a fraud which would increase the vote of his political oppo- 
 nents. The legal presumption is the other way, and as there is no evi- 
 dence to support this argument it must fall. There is another fact in 
 connection with this poll to which we wish to call attention. Moore says 
 that Black counted 277 tickets in all that were put in the box, and Web- 
 ster, the clerk of the court, swears that when the box was opened by 
 the county board of canvassers, that 277 was the exact number of ballots 
 found in the box. This is another prominent feature in the evidence 
 tending to produce uncertainty as to the true vote, and shows, if true, 
 that the ballots were tampered with before they were counted. 
 
 But there is still another view of this question assumed by the contes- 
 tee; he insists that he has proven by 308 persons that they voted for him 
 at Archer No. 2. He claims that he has proven this by the mouths of 
 the voters, outside of the returns, and that therefore he is entitled to 
 Lave them counted for him in case the returns are set aside for fraud. 
 And as the contestant has failed to introduce any witnesses to testify that 
 they voted for him at said poll, that therefore he, contestant, is not en- 
 titled to have any votes counted for him at said poll; thereby giving 
 contestee 308 majority at said poll instead of 258 majority fraudulently 
 returned for him by his political friends, thus enabling him and them to 
 succeed by their own wrongs to a greater extent than their criminal acts 
 standing alone would justify. But the statements of these 308 witnesses 
 will hardly sustain this assumption by the coutestee. A large number of 
 them do not testify that they voted for contestee, but that they voted the 
 Republican ticket; many of them could not read, as we have already 
 said, and therefore they had to depend upon others for the kind of 
 tickets they voted, and were liable to be deceived; but however this may 
 be, your committee is of the opinion that this view of the case cannot 
 be sustained under the proof. The proof shows that contestant did get 
 rotes at said poll, and that he probably got somewhere from 136 to 141. 
 Your committee admits that if there was no evidence other than the 
 returns, they being fraudulent and void, proving that the contestant re- 
 ceived votes at said poll, then it would be unquestionably right to count 
 the vote clearly proven to have been cast for contestee. But when the 
 proof shows that a large number of votes were, in point of fact, cast for 
 one candidate, as for the contestant in this case, but the number not 
 being sufficiently certain to enable them to be counted, it seems to your 
 committee to be manifest injustice to count the votes of his opponent, 
 thereby increasing his majority to the full number of votes so counted. 
 There is no rule of law or equity that will justify such action, but it 
 would be a clear case of uncertainty in the proof, aud stands in the same 
 position as to uncertainty as the other positions assumed, and the entire 
 vote must be rejected.
 
 FINLEY VS. BISBEB. 89 
 
 Your committee has therefore come to the following conclusions as to 
 this precinct: 
 
 1st. That the result of the eleetion as shown by the returns is false 
 and fraudulent. 
 
 2d. That from the other evidence in the case it is impossible to ascer- 
 tain the true vote of said poll. 
 
 The vote must, therefore, in the opinion of your committee, be entirely 
 rejected. 
 
 Waldo precinct, Alachua County. 
 
 Contestee asks that the returns from this precinct be rejected for the 
 reason that the inspectors grossly disregarded the election law, so as to 
 render the returns unreliable, and because said inspectors allowed pas- 
 sengers on the railway to vote without regard to residence, age, or 
 registration, and that a large number of such persons did so vote for 
 member of Congress with the knowledge, consent, and connivance of 
 the inspectors; such persons not being citizens of the State of Florida. 
 All the facts shown in regard to this subject will be found in the evi- 
 dence of Burr, Record, p. 343; Noyes, p. 362, and Earle, p. 364. And 
 after a careful examination of their testimony your committee is satis- 
 fied that there was no disregard of the election laws by the inspectors 
 at this precinct which indicates any desire to commit fraud, and that the 
 testimony is such that the true vote can be clearly ascertained. Your 
 committee also find that the 20 persons who voted at this precinct who 
 did not reside in the county only voted for electors for President and 
 Vice-President of the United States, with the exception of one, whose 
 name is William Ford, who voted for contestant for Congress. The 
 evidence shows that all other persons whose names were not on the reg- 
 istration-list were sworn before they were allowed to vote. 
 
 In the opinion of your committee, after deducting the vote of said 
 William Ford from the vote of contestant, the vote as returned from 
 this precinct should be counted. 
 
 Wacasassee precinct, Alachua County. 
 
 The allegations in regard to this precinct on the part of the contestee 
 are not sustained by the proof. He does not attempt to prove any, 
 except the one in regard to intimidation, and minors voting. The proof 
 entirely fails to show intimidation, in the opinion of your committee. 
 Wassoii, the Republican inspector, and only witness who testifies in 
 regard to this precinct, says he doubted some of the voters who voted 
 were of age, as he did not know them, but that they made oath that 
 they were 21 years of age. We are of the opinion that this precinct 
 should be counted. 
 
 This, we believe, disposes of all the questions of fact at issue between 
 the parties in regard to the election in Alachua County, with the excep- 
 tion of the questions arising under the constitution of the State of Florida 
 in regard to the rights of foreign -born persons to vote, and the ques- 
 tions arising under the registration laws of said State. And as these 
 questions will have to be met in the investigation of the facts arising 
 in some of the other counties, they had just as well be disposed of here 
 by the committee; and 
 
 1st. As to the questions arising under the constitution in regard to 
 foreign-born citizens. 
 
 The contestee alleges that seven votes in Alachua County, five in
 
 90 DIGEST OF ELECTION CASES. 
 
 Columbia County, ten in Xassau County, twelve in Putnam County, 
 and fifty in Duval County should be rejected on the ground that they 
 were alien born, and did not at the time they voted present certified 
 copies of their naturalization papers, or of their declaration of intention 
 to become naturalized. 
 
 On a careful examination of the evidence, your committee find that 
 all of said voters had either been naturalized or declared their intention 
 to become so, with the exception of one in Alachua County and six in 
 Duval County. Your committee also find from the evidence that said 
 voters were not challenged, and were not either requested or required 
 to produce their naturalization papers by the officers conducting the 
 election at the various precincts where they voted. 
 
 It is upon this state of facts that the question is presented whether 
 these persons were qualified voters under the constitution and laws of 
 Florida. 
 
 The qualifications of voters in Florida are prescribed and defined in 
 section 1 of Article XIV of the constitution of that State, as follows : 
 
 SEC. 1. Every male person of the age of twenty-one years and upwards, of whatever 
 race, color, nationality, or previous condition, who shall at the time of offering to vote 
 be a citizen of the United States, or who shall have declared his intention to become 
 such in conformity to the laws of the United States, and who shall have resided and 
 had his habitation, domicile, home, and place of permanent abode in Florida for one 
 year, and in the county for six months next preceding the election at which he shall 
 offer to vote, shall in such county be deemed a qualified voter at all elections under 
 this constitution. (See Acts of 1868, containing the State constitution, p. 211.) 
 
 The third section of the same article of the constitution, and the one 
 on which the contestee relies, does not create any additional qualification* 
 for voters, but only prescribes a regulation. It reads as follows: 
 
 SEC. 3. At any election at which a citizen or subject of any foreign country shall 
 offer to vote under the provisions of this constitution, he shall present to the persons 
 lawfully authorized to conduct and supervise such election, a duly sealed and certi- 
 fied copy of his declaration of his intention, otherwise he shall not be allowed to vote. 
 And any naturalized citizen offering to vote, shall produce before said persons law- 
 fully authorized to conduct and supervise the election, the certificate of naturalization, 
 or a duly sealed and certified copy thereof, otherwise he shall not be permitted to 
 vote. (Acts of 1868 constitution, sec. 3, pp. 211-212.) 
 
 In the opinion of your committee it is clear that section 1 of Article 
 XIV prescribes and defines all the qualifications of voters, and equally 
 clear that section 3 does not create any additional qualification. 
 
 The qualification prescribed by section 1, in regard to foreign-born 
 persons, is, that at the time they offer to vote they shall either be 
 citizens of the United States, or shall have declared their intention to 
 become such; while section 3 does not create any additional qualifica- 
 tion, but only undertakes to prescribe the mode of proof, in case the 
 right of such persons to vote shall, at the time they offer to vote, be 
 disputed. 
 
 Such is the reasonable interpretation of these two sections of the con- 
 stitution of Florida, when taken and construed together. 
 
 Moreover, this is the construction given by the first legislature in the 
 State of Florida, which convened under the constitution of 1868, and it 
 is to be observed that very many of the members of said legislature 
 were also members of the convention that formed the constitution, and 
 your committee are advised that this construction has been acquiesced 
 in by every legislature that has convened since that time. 
 
 The legislature of 1868 treated and construed the third section of 
 Article XIV of the constitution as being merely directory, as will be seen
 
 FINLEY VS. BISBEE. 91 
 
 from the sixteenth section of the act of August 6, 1868, which provides 
 as follows: 
 
 SEC. 16. If any person oft'ering to vote shall be challenged as not qualified, by 
 any inspector, or by any other elector, one of the board shall declare to the person 
 challenged, the qualifications of an elector. If such person shall claim to be qualified, 
 and the challenge be not withdrawn, one of the inspectors shall administer to him the 
 following oath : "You do solemnly swear that you are twenty-one years of age; that 
 you are a citizen of the United States (or that you have declared your intention to 
 become a citizen of the United States according to the acts of Congress on the subject 
 of naturalization); that yon have resided in the State one year, and in the county six 
 months next preceding the election ; that you have not voted at this election, and that 
 you are not disqualified to vote by the judgment of any court;" and if the person chal- 
 lenged shall take such oath he shall be allowed to vote. (Pamphlet acts 1868, p. 5, 
 sec. 16.) 
 
 It is shown by the testimony in this case that none of these alien-born 
 voters, except one, were challenged; that their naturalization papers 
 were not demanded; that they were allowed to vote without question, 
 and that they were in fact (with the exception of seven), at the time 
 they voted, either naturalized citizens of the United States, or had de- 
 clared their intention to become such, as required by section 1 of Article 
 XIV of the constitution of the State. And your committee are of the 
 opinion that, as they are proven to have possessed the qualification of 
 citizenship or of having declared their intention to become citizens as 
 required by the constitution, their votes should not be rejected, and 
 they deprived of the highest privilege of an American citizen, which they 
 had acquired by the abandonment of their native land, and by the sol- 
 emn renunciation of their native allegiance. 
 
 It is the settled law of elections that where persons vote without chal- 
 lenge, it will be presumed that they were entitled to vote, and that the 
 sworn officers of the election who received their votes performed their 
 duty properly and honestly, and the burden of proof to show the contrary 
 devolves on the party denying their right to vote. 
 
 In this case, so far from the evidence showing that the persons in ques- 
 tion were not entitled to vote, it shows that they were either naturalized, 
 or had declared their intention to become so, and the contestee has failed 
 to prove anything to the contrary. 
 
 " It is quite settled," says Mr. McCrary in his work on elections, "that 
 where one who is alien-born has voted at an election, the law presumes 
 that he has been naturalized, until the contrary appears." (McCrary, 
 sec. 294, citing New Jersey case, 2 Cong. Cases.) 
 
 It is therefore seen that a person who has voted is presumed to have 
 been qualified until the contrary is shown. Mr. McCrary, in section 
 62 of his Treatise on Contested Elections, says, that the contrary may 
 be presumptively shown by proof that the voter has failed to produce 
 the proof required by law before voting; in which case it is incumbent 
 on the person claiming his vote to show affirmatively that he was a qual- 
 ified voter. (McCrary, sec. 62.) 
 
 This has been done by the contestant in all the cases of this class, ex- 
 cept in the few instances already mentioned. 
 
 Your committee also find it to be the law, that "evidence which might 
 have been sufficient to put the voter on his explanation if challenged at 
 the polls, is not deemed to be sufficient to prove a vote illegal after it 
 has been admitted." (McCrary, sec. 371.) 
 
 Section 1 of Article XIV of the constitution of Florida defines and 
 determines the qualifications of voters in that State, while section 3 
 of the same article only prescribes a regulation; and it is a settled prin-
 
 92 DIGEST OF ELECTION CASES. 
 
 ciple of law, that the right to vote must not be impaired by the regula- 
 tion. (McCrary, sec. 8.) 
 
 It appears from the evidence that the larger portion of these alien- 
 born voters had been naturalized, and, so far as they are concerned, the 
 question is conclusively settled by section 1 of the fourteenth amend- 
 ment of the Federal Constitution, which contains the following pro- 
 vision, to wit: "That all persons born or naturalized in the United 
 States and subject to the jurisdiction thereof, are citizens of the United 
 States and of the State wherein they reside"; and "no State shall make 
 or enforce any law which shall abridge the privileges or immunities of 
 citizens of the United States." 
 
 After having fully considered both the law and the facts of the case, 
 your committee are of the opinion that none of these votes should be 
 rejected except one in Alachua County and six in Duval County, in re- 
 gard to whom the contestant has not shown affirmatively that they were 
 either naturalized or had declared their intention to become so. 
 
 2d. As to the question of registration under the laws of the State of 
 Florida, the contestee alleges, in his answer, that in several of the coun- 
 ties in said district a number of persons voted whose names were not 
 found on the registration list of the county in which they voted. 
 
 Section 7 of the election law of the State of Florida provides for the 
 registration of the voters in the several counties of the State, and the 
 manner of doing the same. The clerk of circuit court of each county 
 is required to prepare a suitable book for the registration of the names of 
 the electors residing in his county; that the oath required to be taken 
 by the electors shall be written or printed therein ; that the names of the 
 electors shall be alphabetically arranged in said book, and the date of 
 registration, &c. 
 
 Section 9 of the same law provides that the board of commissioners 
 of each county must meet at the clerk's office in their respective coun- 
 ties within thirty days preceding the day on which any election shall be 
 held, and examine the list of registered electors, and erase therefrom 
 the names of such persons as are known or may be shown to their sat- 
 isfaction to have died or ceased to have resided permanently in the 
 county, or otherwise becoming disqualified to vote. 
 
 This section gives the board of commissioners a large discretionary 
 power. They may erase names from the registration-list at discretion. 
 
 This would be a very dangerous power indeed, and might deprive many 
 electors of their right to vote by having their names wrongfully stricken 
 or erased by the board of commissioners from the registration-list, were 
 it not for another provision of the law which provides that if the voter 
 " on offering to vote," in case his name is not found on the registration- 
 list, " will take an oath that his name has been improperly " struck off 
 from " the list of registered voters, and shall take the oath required to 
 be taken by persons whose right to vote shall be challenged, such per- 
 son shall have the right to vote." 
 
 Now it is clear that if a person offering to vote, whose name has once 
 been on the registration list of the county, but which has been wrong- 
 fully erased therefrom by the county commissioners, takes the oath that 
 his name has been improperly erased, that he is then legally entitled to 
 vote, and if he does vote, possessing the other qualifications under the law, 
 his vote must be counted. The coutestee does not aver for whom these 
 non-registered voters, which he insists are illegal, cast their votes, neither 
 does he undertake to prove for whom they did vote, but he asks that 
 they be deducted from the vote of the contestant. This, of course, can- 
 not be done. But under the rule it does not follow that illegal votes
 
 FIXLEY VS. BISBEE. 93 
 
 must be counted in making tip the true result, because it cannot be ascer- 
 tained for whom they were cast. In purging the polls of illegal votes 
 the general rule is that unless it be shown for which candidate they were 
 cast, they are to be deducted from the whole vote of the election divis- 
 ion, and not from the candidate having the largest number. (McCrary 
 on Elections, p. 223 ; Shepherd?-. Gibbons, 2 Brewster,128; McDaniel's 
 Case, 3d Penn., L. F., 310; Cushing's Election Case, 583.) 
 
 Of course, in the application of this rule, such illegal votes would be 
 deducted proportionately from both candidates, according to the entire 
 vote returned for each. (McCrary, p. 223.) 
 
 This is, perhaps, the best rule that can be adopted in such case. It is 
 manifest, however, that it may sometimes work a great hardship; for 
 the truth might be, if it could be shown, that all the illegal votes were 
 cast for one of the candidates, while it is scarcely to be presumed that 
 they would ever be divided between the candidates in exact proportion 
 to their whole vote. But the rule that would deduct them all from either 
 one of the candidates, in the absence of proof as to how the illegal votes 
 were cast, is much more unreasonable and dangerous. The above rule 
 is perhaps the safest one to be adopted in a court of justice, where there 
 is no power to order a new election, aud where great injury would result 
 from declaring the office vacant. But it is manifest, as we have already 
 said, that it might work a great hardship. And in a legislative body, 
 having the power to order a new election, it is safer, in the opinion of 
 your committee, and more conducive to the ends of justice, to order 
 such new election, than to reach a result by the application of such a 
 rule. (McCrary, pp. 224, 22.i.) 
 
 Under the rules above referred to, it may be that the averments in the 
 answer, by a very liberal construction, are sufficient to let in the proof of 
 contestee, to show that illegal votes were cast, on the grounds averred. 
 
 Your committee will therefore consider the evidence, and determine 
 whether it proves that illegal votes were cast under the reasons assigned. 
 
 The contestee offers in evidence the certified copies of the registration- 
 lists of the counties ; also the poll-lists of the precincts of said counties; 
 and he invites a comparison of the names on the poll-list with the names 
 found on the registration-list, and insists that the votes of all persons 
 whose names appear on the poll-list as having voted, but whose names 
 are not found on the registration-list, be declared void, for the reason 
 that such votes are illegal. 
 
 Your committee does not agree with this view of the question. If a 
 person vote in a county in Florida, having all the qualifications of a voter 
 of said county except that his name has never been registered in said 
 county, his vote, in the opinion of your committee, would be illegal, or 
 if the name of such person having once been on the registration-list of 
 said county, but having been erased therefrom by the board of commis- 
 sioners, afterward cast his vote without having first taken the oath that 
 his name had been improperly stricken "oft" from" the list of registered 
 voters, his vote would also be illegal. But suppose we examine the poll- 
 list and find the name of a voter thereon as having voted, and we then 
 turn to the registration-list and find his name is not on that, can it there- 
 fore be said that he voted illegally! Certainly not. If a person voted 
 at an election, his vote is presumed, under the law, to be legal until the 
 contrary be proven in a legal way, for the reasons 
 
 1st. That the acts of an officer or officers of an election within the 
 scope of this authority are presumed to be correct and honest until the 
 contrary is made to appear, aud therefore that they as such officers 
 would not receive an illegal vote. '
 
 94 DIGEST OF ELECTION CASES. 
 
 2d. That the presumption is always against the commission of a fraud- 
 ulent or illegal act, and, therefore, that a man would not cast an illegal 
 vote. (McCrary on Elections, sec. 87440; Little v. Bobins, 1st Bart- 
 lett, p. 138; Gooding v. Wilson, Forty-second Congress.) 
 
 This presumption must be overcome by positive proof. Take the case 
 of a voter. His name is on the poll-list of a certain precinct showing 
 that he voted at said precinct; his name, however, is not found on the 
 registration-list. These facts are not sufficient to prove that his vote is 
 illegal. They do not overcome the presumption of law arising in favor 
 of the legality of his vote under the above rules. His name may 
 have been improperly erased from the registration-list by the county 
 commissioners, and he may have taken his oath to that effect before 
 having deposited his ballot in the ballot-box, and the legal presumption 
 is that he did; and in that case his vote would be legal if his name had 
 ever been on the registration. The certified copy of the poll-list is evi- 
 dence that he voted. But a certified copy of the registration-list after it 
 has been revised under the law by the board of commissioners is not 
 evidence of the fact that his name was never on the registration, for 
 it may have been erased therefrom by said board, and then it would 
 cease to be a part of the record of registration, and a certified copy of 
 the record of registration would not contain his name, neither would it 
 show that his name had been erased therefrom; for the law of Florida 
 does not provide that a record of the names of persons erased from the 
 registration-list shall be made. There is no legal way of preserving 
 them on the record. The fact cannot be proven by the record, and cer- 
 tainly can not be proven by the certificate of the clerk attached to what 
 purports to be a copy of a record which has no legal existence, for the 
 clerk can only certify to records in such case, and his certificate to a fact 
 in this case, outside of the records legally in his custody and of which 
 he is legally authorized to give certified copies under his hand and seal, 
 amounts to no more than the certificate of a private individual to a 
 given fact. The fact may be true, but the certificate is no evidence of 
 it. Therefore, the fact that the name of a person who is shown to have 
 voted never was on the registration list, must be proven in the same 
 manner you would prove any other fact not of record. The contestee, 
 relying upon the certified copies of what he claims to be the list of per- 
 sons whose names have been erased from the registration-list to prove 
 the facts they contain, must fail on this point. 
 
 But the coutestee undertakes in another way to prove that the votes of 
 persons whose names appear on the certified copy of the poll-list of a 
 particular precinct as having voted, and whose names do not appear on 
 the certified copy of the registration -list of the county, are illegal. And 
 to do so, he introduces H. Jenkins, jr., and Ed. Higgins as witnesses to 
 testify, who, it is claimed, spent two months in gathering the facts in 
 regard to this question. 
 
 We will consider the evidence of these witnesses. 
 
 1st. As to the statement of H. Jenkins, jr. He swears that the paper 
 handed him, marked Exhibit A (found on page 650 of the Record), is a 
 list of persons who voted at People's Mill, No. 4, Jasper, No. 2, Bennain's 
 Mills, Xo. 7, and White Springs, No. 3, precincts in Hamilton County, in 
 said district, whose names have been stricken from the registration-list of 
 said county. "This," he says, " I have ascertained by the examination 
 of certified copies of poll-lists of the precincts named, the registration- 
 list of the county, and a list of the names of persons who have been 
 stricken from the registration-list, all certified to by the clerk of Hamilton 
 County, Florida." The contestee offers the paper in evidence.
 
 FINLEY VS. BISBEE. 95 
 
 , as your committee has alreadj' said in effect, this paper marked 
 Exhibit A is not evidence under the law of Florida, and we know of 
 no rule of law which would make it evidence for the purposes for which 
 it is introduced, or indeed any other purpose. Witness says it is a list 
 of persons whose names do not appear on the registration-list. How 
 does he know this fact? He says he knows it by an examination of 
 copies of the poll -lists, registration-lists, and a certified copy of a list of 
 names stricken from the registration-lists. 
 
 Your committee has already decided that a certified copy of a list of 
 names stricken or erased from the registration-list is not evidence for 
 any purpose in this case. If it was, oral evidence is not inadmissible to 
 prove its contents. The statements of this witness, therefore, in regard 
 to the contents of the certified copies of the lists to which he refers 
 cannot be considered. 
 
 The statements of the witness Ed. Higgins are to the same effect. 
 He states that he has carefully examined the certified copies of the reg- 
 istration and poll lists, and a list of names stricken from the registra- 
 tion-lists, li and by examination of other papers ichich have been placed on 
 file in connection icith these exhibits," in regard to the election in the 
 counties of Suwanuee, Putnam, Clay, Volusia, Orange, Alachua, Colum- 
 bia, Bradford, and Hamilton, in said Congressional district, and from 
 tliiv examination and comparison of these papers the witness undertakes 
 to swear that certain lists marked Exhibits A, B, C, D, E, F, G, H, and 
 I contain the names of persons who voted in these counties, whose 
 names do not appear on the registration-lists of said counties. These 
 statements made by the witness are inadmissible. The papers them- 
 selves are the best and only evidence of what they contain, if they are 
 admissible for any purpose. The committee must make the comparison 
 and cannot take the statements of the witness as to the result of his 
 comparison. 
 
 Your committee is of the opinion that this proof is insufficient to prove 
 that these persons voted illegally whose names are not found ou the 
 registration-lists of their respective counties. If they took the oath that 
 their names had been improperly erased from the registration-list and 
 the proof thus far is insufficient to overcome the presumption that they 
 did their votes are legal. The contestee undertakes to overcome the 
 presumption in favor of the legality of this class of votes in another 
 way. On sOrue of the poll-lists of the precincts in these counties is 
 found at the end of some of the names of the persons voting these 
 words, " Not sworn." At the end of others the word " Sworn." ^N'ow, 
 it is contended by contestee that, whenever you find a name on the poll- 
 list of any precinct with the words " not sworn " written after it, which 
 name is not found ou the registration-list of the respective county, 
 that the vote of such person is illegal. This position cannot be main- 
 tained, for reasons which we have heretofore stated. But we will further 
 say that the law does not authorize the election officers, or either of 
 them, to write the words " not sworn " or " sworn" on the poll-list after 
 the names of the voters who have voted and whose names are not found 
 on the registration-list of the county in which they vote, whether such 
 persons were sworn or not before they voted. The writing of these 
 words are therefore unofficial acts, and not a part of the poll-list under 
 the law, and not evidence, and cannot be made so by a certified copy of 
 the poll list, as is here attempted to be done. It would be a very dan- 
 gerous rule, indeed, which would permit everything which appears on 
 the face of a record to become evidence, whether placed there by au- 
 thority of law or by the unofficial acts of irresponsible persons. How
 
 96 DIGEST OF ELECTION CASES. 
 
 these words came to be written on these poll-lists, or by whom they were 
 so written, the evidence does not show. But it is enough for your com- 
 mittee to know that they were not placed there pursuant to any law, 
 and cannot be considered as evidence. 
 
 Your committee is, therefore, of the opinion that the evidence does 
 not prove that the votes cast by persons whose names were not found 
 on the registration-lists of the counties in which they voted are illegal. 
 The evidence does not prove that they did not take the oath required 
 by law in such case. There being no further questions affecting the 
 vote of Alachua County, it must be counted as follows : 
 
 Deduct from contestant's vote, as given in the tabulated statement 
 in the fore part of this report, 141 votes returned for him at Archer 
 precinct, No. 2, and 1 vote cast by William Ford, a non-resident, at Waldo 
 precinct, 1 foreign vote, in all 142. And deduct from the vote of con- 
 testee, as shown by the same statement, the 399 votes returned for him 
 at said Archer precinct, No. 2, and the remainders will be the true vote 
 of the county. 
 
 BAKER COUNTY. 
 
 The principal question in regard to the election in this county is 
 whether the returns from the precincts of Johnsville and Darby ville, in 
 said county, shall be counted. That the returns from these precincts 
 are regular will appear from the inspection of the returns themselves. 
 (See Exhibits B and D. Eecord, pages 49-51.) Why these returns were 
 rejected by the canvassing boards your committee need not determine, 
 as that question is not necessarily before us. But it is our duty to ascer- 
 tain the true vote of these precincts if we can do so. And in order to 
 do so your committee will go behind all returns and look at the facts, 
 if necessary. That the returns from these two precincts should have 
 been counted by the cauvassiug-boards, your committee can have no 
 doubt after a careful examination of the evidence in regard to that 
 point; and 
 
 That the election at both of said precincts was fairly, peaceably, and 
 honestly conducted is abundantly shown by the testimony of Edward 
 Bowe and William Noble, inspectors of election at Darby ville, and Gor- 
 don S. Taylor and W. S. Cobb, inspectors at Johnsville. They testify 
 as follows : 
 
 Deposition of Edward Rowe. 
 
 EDWARD ROWE, of the county of Baker, being duly sworn, deposes and says: 
 
 Question. What is your name? Answer. Edward Rowe. 
 
 Q. Where do you reside? A. lu Baker County, State of Florida. 
 
 Q. Where were you on the 7th of November last, at the general election in the State 
 of Florida? A. At the Darby ville precinct, in Baker County, in said State. 
 
 Q. Was there an election held there that day for member of Congress and other 
 officers, Federal and State? A. Yes, sir. 
 
 Q. Were you or not an election officer at that precinct on that day; and, if so, 
 what office did you hold ? A. I was one of the managers of the election at that pre- 
 cinct. 
 
 Q. Were you sworn as such manager? A. Yes, sir. 
 
 Q. Were you there all the time during the election on that day? A. I was, and 
 served as a manager or inspector. 
 
 Q. Who were the other managers and clerk at said precinct at said election ? A. 
 Mr. P>lisha Green and Mr. William Nobles were the inspectors, and John Mclvor was 
 clerk. 
 
 Q. Was the election there on that day peaceable and fairly and honestly con- 
 ducted ? A. It was. 
 
 Cross-examination : 
 
 Q. Did any one vote at that precinct on that day that was not a registered voter ? 
 A. If there was, I did not know it.
 
 FINLEY VS. BISBEE. 97 
 
 Q. Did or did not electors at that precinct have tickets taken out of their hands 
 by force, and other tickets forced upon them to vote ? A. If there was, I did not see 
 anything of it. 
 
 Re-examined by contestant: 
 
 Q. Were you in a position where you could look out upon the voters around the 
 polls during that day ? A. I was. 
 
 his 
 EDWARD -f ROWE. 
 
 mark. 
 Witness: 
 
 JOHN HKRNDON, 
 
 County Judge, Baker County, Florida. 
 
 Deposition of William Nobles. 
 
 WILLIAM NOBLES, being duly sworn, deposes and says: 
 
 Question. What is your name? Answer. William Nobles. 
 
 Q. Where do you reside? A. In Baker County. 
 
 Q. Where were you on the ?th day of November last? A. I was at Darby ville pre- 
 cinct, 'u Baker County. 
 
 Q. Wa.s there an election held there on that day for governor, lieutenant-governor, 
 Presidential electors, and member of Congress for the second Congressional district 
 of Florida? A. There was. 
 
 Q. Were you not an election officer at that precinct at said election? And if so, 
 state what office it was. A. 1 was manager and inspector. 
 
 Q. Were you duly sworn as such manager aud inspector? A. I was. 
 
 Q. Was the election there on that day peaceable and fairly and honestly con- 
 d acted ? A. It was. 
 
 Q. Do you remember who were the other iuspectors at that precinct? A. Mr. 
 Green and Mr. K'owe. 
 
 Q. Who was tli clt-rk at said election? A. Mr. John Mclvor. 
 
 Cross-examined : 
 
 Q. Who administered the oath to you as inspector? A. I do not remember who 
 administered the oath to me as inspector, but I know I was sworn as such. 
 
 Q. How do you know? A. I was sworn to see that the election was conducted 
 fairly. 
 
 Q. Did you sigu any oath in writing? A. I did. 
 
 Q. Do YOU mean when you say the election was conducted fairly and honestly, to 
 refer entirely to the inspectors and managers of the election ? A. I do. 
 
 Re-examined: 
 
 Q. Were you sitting where you could look out upon the voters about the polls 
 while the election was going on? A. I was sitting where I could see a portion of 
 the crowd. 
 
 ' Q. Did you observe any disturbance of the public peace, or anything that was un- 
 fair or dishonest among the voters? A. I saw nothing going on that was unfair or 
 dishonest; no disturbance of the peace or riots; everything seemed peaceable. 
 
 Recross : 
 
 Q. Did you see among the crowd about the polls any person or persons taking 
 tickets out of the hands of voters against their will and presenting other tickets to 
 them, or making or using any forcible means to cause voters to vote against their 
 will? A. I did not see it. 
 
 his 
 WILLIAM -f- NOBLES. 
 
 mark. 
 Attest: 
 
 JOHN HI:;:NDOX, 
 
 County Judye. Haker County, Florida. 
 
 Deposition of Gordon S. Taylor. 
 
 Who, being duly sworn, deposes and sa . - : 
 
 Question. What is your name.' Answer. Gordon S. Taylor. 
 
 Q. Where do you reside now, and where did you reside on ?th November last? A. 
 In Baker County. 
 
 Q. Were you at a general election held in Florida on the ?th November last; if so, 
 at what precinct and what county ? A. .Juhnsville precinet, Baker County. 
 
 H. Mis. :S 7
 
 98 DIGEST OF ELECTION CASES. 
 
 Q. Did you act as inspector at the election at said time and preciiict? A. I did. 
 
 ( t >. Were you duly sworn as such? A. I was. 
 
 Q. Was the election at that precinct conducted peaceably, fairly, and honestly ?- 
 A. It was. 
 
 Q. Who were the other inspectors who .icted with you ? A. Elias Williams and 
 William C. Cobb. 
 
 Q. Were they duly sworn as such? A. They were. 
 
 Cross-examination : 
 
 Q. Who administered the oath as such inspector? A. Myself. 
 
 Q. As what officer did you administer the oath? A. As justice of the peace. 
 
 Q. When did you take the oath and administer it ? A. On the 7th day of November 
 last. 
 
 Q. Did you see any one at the election at your precinct being prevented from voting 
 by force or threats of any kind ? A. I did not. 
 
 Q. Were you holding any other office on the 7th day of November last besides that 
 of inspector of election and justice of the peace? A. I was tax assessor and collector. 
 
 Q. When were you appointed justice of the peace and tax assessor and collector? 
 A. I was appointed justice of the peace in 1875 and tax assessor and collector ;u 1876, 
 as near as I can recollect. 
 
 Q. Were you or were you not appointed tax assessor and collector after you were 
 appointed justice of the peace? A. I was. 
 
 Q. Did you qualify in both offices? A. I did. 
 
 Re- examination : 
 
 Q. Were you an acting justice of the peace on the 7th day of November last ? A. 
 I was. 
 
 Q. Did you administer the oath to Elias Williams and William C. Cobb on that day 
 as inspectors of the election at said Johusville precinct ? A. I did. 
 
 G. S. TAYLOR. 
 
 Deposition of William C. Cobb. 
 
 Who, being duly sworn, deposes and says: 
 
 Ques'ion. What is your name? Answer. William C. Cobb. 
 
 Q. Wnere do you reside now and where did you reside on the 7th November last? 
 A. In Baker County. 
 
 Q. Were you at a general election in Florida on the 7th November last ; and, if so, 
 at what precinct and in what county ? A. In Johnsville precinct, in Baker County. 
 
 Q. Did you act as inspector of election at said precinct ? A. I did. 
 
 Q. Were you duly sworn as such ? A. I was. 
 
 Q. By whom were you sworn ? A. By Gordon S. Taylor. 
 
 Q. Who were the other inspectors that acted with you ? A. Elias Williams and 
 Gordon S. Taylor. 
 
 Q. Wan the election at said precinct conducted peaceably, fairly, and honestly? 
 A. It was. 
 
 Cross-examined : 
 
 Q. Did you know when you took the oath before Gordon S. Taylor that he was tax 
 assessor and collector of Baker County ? A. Yes, sir. 
 
 WILLIAM C. COBB. 
 
 Contestee asks that 75 votes cast and counted for contestant in said 
 county be rejected, on the ground that they were cast by persons who 
 were not registered in compliance with law. Your committee is of the 
 opinion that, under the rules of law laid down in the case of Alachua 
 County, in regard to registration, there is nothing in the evidence which 
 sustains the charge. The e\idence shows that the court-house of said 
 county burned after the election, and it pretty clearly appears that the 
 records of the clerk's office, including the registration-list, poll-list, and 
 returns of tlie election, were all burned. There is an attempt, on the 
 part of contestee, to prove that some of the persons registered just 
 before the election were not legally registered. But whether they had 
 been registered before, and their names been improperly dropped, does 
 not appear; nor whether they took an oath to the effect that their names 
 had been improperly dropped from the registration-list does not appear. 
 
 There is no attempt at proving, by the contestee, that 10 votes were
 
 FINLEY VS. BISBEE. 99 
 
 cast for contestant by non-residents, minors, alien-born persons, &c., as 
 alleged. Therefore, the vote of this county must be counted as returned 
 by the precinct officers, including- the vote of Jolinsville and Darbyville 
 precincts. This being done, the vote of this county will stand as fol- 
 lows : 
 
 Contestant 238 
 
 Con test ee 143 
 
 As shown in said tabulated statement. 
 
 BREVARD COUNTY. 
 
 The testimony of John M. Lee and Quinu Bass, the only witnesses 
 examined by contestee, fails to establish the fact charged that there was 
 a fraudulent suppression of the polls at any precinct in this county. (Lee, 
 p. 445; Bass, p. 441'.) 
 
 The vote must, therefore, be counted as returned by the precinct 
 officers. 
 
 Contestant , Ill 
 
 Contestee 5ft 
 
 BRADFORD COUNTY. 
 
 Contestee asks, in his answer, thatLuke Butler precinct, inthis county* 
 be rejected on the ground of fraud, &c. But he abandoned this in his 
 printed argument (p. 81). He only insists on his allegation in regard to 
 non registered voters. We do not think the proof sufficient to justify 
 the throwing out of any vote on this ground. The vote should be 
 counted as set forth in said tabulated statement. 
 
 Contestant ' 700 
 
 Coutestee 19> 
 
 CLAY COUNTY. 
 
 Your committee is of the opinion that the entire vote of this county 
 as returned by the precinct officers should be counted. The county 
 board of canvassers counted all the votes of this county except No. 8 
 (No. 11 Pond; see Record, pp. 179, 180), and said canvassers say in their 
 return that this precinct was not counted for the reason that there was 
 no evidence that the inspectors at this poll were sworn. But the evi- 
 dence in the record shows that the inspectors were sworn, and that the 
 election at said precinct was honestly and fairly conducted. (Lyman 
 Hall. pp. 24, 25 ; Buddingtou, p. 26 ; Ex. A and B, p. 27.) 
 
 Even the fact that the inspectors of the election were not sworn will 
 not of itself, in the absence of fraud, render the election void; and as 
 there is no fraud shown at this poll it comes within the rule. (McCrary, 
 sec. 305.) 
 
 It is alleged that Elias Padgett, sr., was a non-resident of this county, 
 and that lie voted at Clay Hill precinct. But a careful examination of 
 the evidence fails to show that his vote was illegal. It is not shown 
 for whom he voted for Congress. We think the evidence does not prove 
 that any illegal votes were cast in this county. 
 
 The vote, therefore, of this county should be counted, including No. 8 
 (No. 11 Pond), which gave contestant 29 votes and contestee 6 votes. 
 
 Contestant 315 
 
 Coutestee 126
 
 100 DIGEST OF ELECTION CASES. 
 
 COLUMBIA COUNTY. 
 
 The contestee asks that the vote of precinct Xo. 4 be rejected, on the 
 ground that th.e election was fraudulently conducted ; that the returns 
 were tainted with fraud by the inspectors and others wrongfully inter- 
 fering with the election. There is nothing to warrant the suspicion of 
 fraud in the conduct of the election, either in the action of the inspect- 
 ors or by the interference of other parties. 
 
 The coutestee attempts to prove that Daugherty, one of the inspect- 
 ors at said precinct, threw a Republican ticket under the table and put 
 another in the ballot-box in its place. And to do this, he introduces Small, 
 Taylor, and Jordan. (See Record, pp. 447-467-498.) An examination 
 of their evidence shows that they contradict themselves and each other 
 to such an extent as to render their statements altogether unreliable. 
 But they are clearly contradicted by other witnesses. Besides, the vera- 
 city of Small and Jordan has been fully discredited by four unimpeached 
 witnesses. (See evidence of Thompson, Record, pp. 1G9, 170: Kirby, 
 Record, p. 171 ; Potsdamu. Record, p. 170; Henry, Record, p. 170.) 
 
 Again, the testimony of Small, Taylor, and Jordan is fully contradicted, 
 not only by Daugherty, but by Brown, who was a challenger, and was 
 present at said precinct all day. (See evidence of Daugherty, Record, 
 142; Brown, Record, 149.) Coutestee asks that the return from said pre- 
 cinct should be rejected on the further ground that the poll-list was 
 fraudulently suppressed by some of the inspectors. The testimony of 
 Cato Carter, a Republican inspector, and the only witness to the point, 
 settles the question, and clearly explains why the poll-list was not 
 returned, and proves that there was no intention of fraud. (Carter, pp. 
 454, 455.) Contestee attempts to prove that three colored men were shut 
 up in Hart's gin-lot, in Lake City, on the day of election, and were com- 
 pelled to vote the Democratic ticket. The only witness produced was 
 this same Benj. Jordan, who says he only knew one of the men, who 
 told him he was compelled to vote the Democratic ticket. He does not 
 know for whom they voted. (Jordan, 950.) But as Jordan has been so 
 fully impeached, it is wholly unnecessary to discuss this matter further. 
 
 Contestee attempts to show that ten persons voted at said precinct; 
 whose names were not on the registration-list. Cato Carter is the wit- 
 ness to this fact. He does not know for whom they voted, nor does he 
 prove whether they took the oath or not. (See evidence of Carter, 
 Record, pp. 454, 455.) Daugherty swears that all who voted at this pre- 
 cinct whose names were not found on the registration-list took the oath ; 
 this settles the question, under the construction of the law and evidence 
 in case of Alachua County. (See evidence of Daugherty, p. 141.) 
 
 Precinct Xo. 1. Contestee asks that 30 votes be rejected from con- 
 testant's vote at this precinct, on the ground of uon-registratiou, uou- 
 resideuce, intimidation, and fraud. There is no proof of non-residents 
 voting, nor of coercion, intimidation, nor fraud at this poll. As to non- 
 registered voters, A. D. Holland swears that there were 13 voters who 
 voted aud whose names were not found on the registration-list, but that 
 they all took the required oath. Holland was a Republican inspector 
 at this poll. (See evidence of Holland, p. 451.) And seven of these 13 
 were examined, and they all swear that they took the oath. W. M. Ives 
 says that he administered the oath to all whose names were not on reg- 
 istration list. (See evidence of Ives, pp. 167, 168.) 
 
 There is no proof of intimidation on the day of election. Butcontes 
 tee attempts to prove that Win. MrNish, Stephen Thomas, Joe Sim- 
 mons, Jas. King, and Thomas Boyd were arrested on the road, a few
 
 ?"INLEY VS. BISBEE. 101 
 
 miles from Lake City, on the 17th day of October, 1876, by Joel Niblaek 
 and three other men, and were compelled by their captors by intimida- 
 tion to promise to vote the Democratic ticket. Thomas and Simmons 
 say that their lives were, threatened, and their lives were spared only 
 on condition that they would vote the Democratic ticket. But Win. 
 McXish, the principal witness, proves that by the vote of the entire 
 capturing party these five persons were spared before anything; was 
 said about politics. (McNish, pp. 935, 936.) 
 
 The whole trouble seems to have grown up in regard to a hog 1 , which 
 Joseph King was accused of stealing, and when McNish told all he knew 
 about the hog' Niblack said he was satisfied. Boyd says that McNish, 
 being frightened, made the first proposition in regard to voting, and 
 that Niblack told them several times afterward that he did not hold 
 them responsible for their votes, and that he voted the Democratic ticket 
 freely. Boyd says that the promise they made to Niblack was that 
 they would aid and assist the honest people in putting down stealing, 
 and this was satisfactory. The charge of intimidation, as to the election, 
 is not sustained by the evidence. 
 
 Your committee have examined the evidence very carefully in regard 
 to the other allegations and facts, and conclude that the vote of this 
 county should be counted as returned by the precinct officers as follows : 
 
 Contestant 901 
 
 Contestee 717 
 
 DUVAL COUNTY. 
 
 Contestee claims in his answer that a certain number of votes cast in 
 this county should not be counted because they were cast by non-regis- 
 tered persons and by foreign- born persons. These votes will have to 
 be counted under the rule adopted by your committee in regard to these 
 classes of voters, except the votes of 6 foreigners heretofore mentioned, 
 the proof as to these voters being the same as it was in regard to those 
 already passed upon. The contestee also asks, as to this county, that 
 ten votes be deducted from the vote of contestant, because they were 
 non-residents and minors. To sustain his averments to this effect, he 
 proves by Philip Walters that Aaron Isaacs and William Monroe, who 
 voted for contestee at West precinct, Jacksonville, were not legal voters 
 for the reason that they had not resided in the State and county the 
 requisite length of time. (See evidence of Walters, Record, 539/540.) 
 Contestee also proves that Henry Young voted at Baldwin precinct, 
 and that he voted for contestant, when he had not been a resident of the 
 county six months immediately preceding the election. (See evidence 
 of Howell, Record, p. 595; Moore, pp. 560, 561.) 
 
 As we have said the evidence proves that these persons were not legal 
 voters, and that they voted for contestant ; they must therefore be de- 
 ducted from his vote in this county. 
 
 Contestee undertakes to prove that certain devices were resorted to in 
 this county by certain persons to compel persons to vote the Democratic 
 ticket by numbering tickets which they gave to said voters, with threats 
 that if they did not vote the Democratic ticket they would be dis- 
 charged by their employers, &c. There is nothing in the answer which 
 will justify such proof. There is no allegation in the answer that can 
 under any rule of pleading known to your committee be construed so 
 as to admit such evidence. We are disposed to extend the rule in this 
 case as far as possible, in order to let in all the evidence, but when there 
 is a total failure to plead, as is the case here, we cannot consider tlm
 
 102 DIGEST OF ELECTION CASES. 
 
 evidence in determining a fact which tends to change the vote of either 
 candidate. Your committee will say, however, that the proof on this 
 point wholly fails tosustaiu such an allegation were it averred. Theproof 
 shows that some fifteen of the ballots cast w^re numbered. But the 
 evidence does not show that the voters were influenced in casting their 
 ballots, by this fact, or that they in some instances knew of it. Your com- 
 mittee are therefore of the opinion that it is not such a violation of the 
 law in regard to the secrecy of the ballot as to affect the election We 
 have not come to this conclusion without giving due weight to the se- 
 crecy of the ballot. The object of the adoption of the ballot was to afford 
 the voter the means of preserving the secrecy of his vote, and to enable 
 him to vote independently and freely without being subject to be over- 
 awed, intimidated, or in any manner controlled by others, or to any ill- 
 will or persecution on account of his vote. The secret ballot is justly 
 regarded as an important and valuable safeguard for the protection of 
 the voter, and particularly the humble citizen, against the influence 
 which wealth and station may be supposed to exercise. (See People 
 vs. Pease, 27 N. Y.. 81.) 
 
 The vote of this county should be counted as returned by the precinct 
 officers after deducting the three (3) votes of Aaron Isaacs, William 
 Monroe, and Henry Young, and the (6) foreign votes from the vote of 
 contestant. The vote will then be as follows : 
 
 Contestant 1, 459 
 
 Contestee '2,331 
 
 HAMILTON COUNTY. 
 
 The contestee asks that the returns from Jasper precinct. No. 2, in 
 Hamilton County, shall be rejected. But a careful examination of the 
 testimony for both the contestee and contestant will show conclusively 
 that while there may have been some irregularity, there was no fraud, 
 or even unfairness, either attempted or accomplished at this precinct; 
 but, on the contrary, the proof shows that everything was fair and honest 
 both in the conduct of the election and in the canvass of the vote at said 
 precinct both political parties being represented. 
 
 The contestee has also attempted to show that Andrew G. Conuell, 
 Gilbert Connell, Joseph A. Ellis, and Joel Highsmith, who voted in 
 said county, had not, at the time they voted, resided in the State the 
 length of time required by law, and that J. D. Land and Benjamin Bow- 
 man, who voted in saidcountj", had not resided there six mouths at the 
 time they voted. But a careful and impartial consideration of the tes- 
 timony will satisfactorily establish the fact that all the above-named 
 persons had all the requisites of citizenship in both the State and county 
 to entitle them to vote. 
 
 The majority of the committee are, therefore, clearly of the opinion 
 that the returns from this county should be counted as returned by the 
 precinct officers, the question of registration having been heretofore 
 settled. The following is the true vote of said county in the opinion of 
 your committee: 
 
 Contestant (514 
 
 Coutestee 329 
 
 MADISON COUNTY. 
 
 In regard to the county of Madison there is no question raised by the 
 evidence which requires any special notice. The vote is as follows: 
 
 Contestant 1,082 
 
 Contestee.. 1,521
 
 FINLEY VS. BISBEE. 103 
 
 MARION COUNTY. 
 
 There is no controversy as to the vote of this county to be determined 
 by the committee. The vote must be counted: 
 
 Contestant 962 
 
 Contest ee 1,548 
 
 NASSAU COUNTY. 
 
 The coutestee alleges in his answer that 30 votes were cast for con- 
 testant in this county by persons who were intimidated and coerced to 
 vote against their choice. He only attempts to prove 16 such votes, 
 and by his own evidence he shows that 12 of the 16 voted the Republi- 
 can ticket. (See Record, 410-415.) 
 
 Of the other 4, one (Lonzo Hunter) swears that he voted the Demo- 
 cratic ticket voluntarily. Gilbert Dorsy is the only one who swears 
 that he voted for contestant, while the remaining two, Columbus Dorsy 
 and Lewis Watson, swear that they do not know for whom they voted 
 for Congress. (Record, Gilbert Dorsy, 409; Columbus Dorsy, 409; 
 Lewis Watson, 411 ; Louzo Hunter, 412.) So that the fact that numbered 
 tickets were given out to some colored voters and resorted to as proof 
 cannot prevail, especially in view of the evidence ot'C. W. Yulee, a wit- 
 ness for the coutestee, who swears that many of the tickets were given 
 to colored men who were members of the Democratic club, who of their 
 own free will enrolled their names as such members. (Yulee, Record, 
 415, 416.) 
 
 In the opinion of your committee, the vote of this county should also 
 be counted as returned by the precinct officers: 
 
 Contestant 670 
 
 Contested 794 
 
 ORANGE COUNTY. 
 
 There is no question raised in the evidence in regard to this county 
 which is not covered by the question of registration which has been 
 passed upon bj your committee. The vote, therefore, must be counted, 
 as follows : 
 
 Contestant 926 
 
 Contestee 194 
 
 PUTNAM COUNTY. 
 
 The contestee attempts to prove that one Henry Cannon voted in this 
 county who was under age. 
 
 The testimony shows that one Henry A. Cannon voted, but does not 
 state for whom. The witness Lyle testifies that Henry A. Cannon was 
 on the poll-list at Palatka in said county, but that he only knew Henry 
 Cannon, and did not know any one by the name of Henry A. Cannon. 
 (Lyle, p. 435.) 
 
 This does not prove that Henry Cannon voted at Palatka, or for whom, 
 nor is it proven that Henry A. Cannon, whose name was on the poll-list, 
 was under twenty-one years of age. 
 
 It is contended that one John Smith, who voted at Palatka, had not 
 resided in the county six mouths before the election. 
 
 Smith swears that he went to Palatka on the 5th day of May, 1876, 
 which was six mouths and two days before the election; that he had 
 before that time left Saint John's County, where he had resided, taking
 
 104 DIGEST OF ELECTION CASES. 
 
 his family with him, and before fixing on a permanent place of abode 
 he left his family at Green Cove Spring, in Clay County, and came to 
 Palatka, with the intention of making it his permanent homeland made 
 arrangements to go into business, and did go into business as a baker 
 when he first came to Palatka, and after being there nearly two months 
 he removed his family from Green Cove to Palatka. (Smith, p. 418.) 
 
 In the opinion of the committee these facts made Palatka the place of 
 his permanent abode from the 5th of May, 1876, and that under the 
 constitution and laws of Florida he became a legal voter after registra- 
 tion. 
 
 An examination of the testimony of Roger and Teasdale will show 
 that they do Hot disprove the statement of Smith. 
 
 The question of residence and domicile is a question largely of inten- 
 tion (and especially as Smith swears that he went to Palatka with the 
 intention of remaining there) ; the fact that he registered and voted there 
 is very strong evidence of his intention to claim his domicile there. 
 McCrary, section 34. 
 
 The mere statement of a witness that a voter is not a resident, without 
 giving facts to justify his opinion, is not sufficient to throw out such a 
 vote; and after a vote has been admitted, something more is required 
 to prove it illegal than to throw doubt upon it. McCrary, sections 371 
 and 372. 
 
 The contestee contends that one William H. Lanagan, who voted at 
 Georgetown precinct, in Putnam County, was not a resident of the 
 county. 
 
 The examination of the testimony of Lyle, Eamsaur, and Rosignal, all 
 witnesses of the contestee, will show that Lanagan had not changed his 
 permanent abode from Putnam County. Lyle, pp. 435, 436, 437; Ram- 
 saur, p. 438; Rosignal, pp. 439, 440. 
 
 Lyle says he does not know that Lanagan left the county without the 
 intention of returning. 
 
 Ramsaur says that he left in search of employment, leaving his child 
 and property at Palatka, and always wrote that he expected to come 
 home. 
 
 Rosigual says that Lauagan voted at Georgetown, in said county; that 
 his name was not found on the registration list, but that he made oath 
 that he was a registered voter in said county, and voted. 
 
 There being no other questions in regard to this county, except the 
 question of registration and the one as to foreign-born voters, the vote 
 must be counted as follows : 
 
 Contestant 617 
 
 Contestee 579 
 
 SUWANNEE COUNTY. 
 
 The contestee asks that 7 votes be deducted from contestant's vote in 
 this county on the ground of non-residence, non-registration, and other 
 disqualifications, and he introduces one Thomas PI. Harris as a witness, 
 who states that he knows that John Williams's name did not appear on 
 the registration -list, and that he believes that the names of Win. L. 
 Keller and S. W. Parnell did not appear on said list, but that the ordi- 
 nary oath taken by challenged voters was taken by them. R. Harris, 
 529. 
 
 But George W. Thralls, a United States supervisor at that precinct, 
 swears that there were two forms of oath administered. Thralls, pp. 
 523-532. 
 
 The evidence of Thralls as to the age of Moses Driver, who voted at
 
 F1NLEY VS. BISBEE. 105 
 
 gaid precinct, is wholly insufficient to establish the fact that Driver was 
 under age when he voted. Thralls. Record, p. 533. 
 
 This is all which need be said in regard to this county. The question 
 as to foreign-born and non-registered voters under the evidence come* 
 under the rule heretofore laid down by the committee. The vote must 
 be counted as returned by precinct officers: 
 
 Coiitestaut 62 
 
 Contestee . 456 
 
 SAINT JOHN'S COUNTY. 
 
 There is but one question involved in regard to the vote of this county 
 which has not heretofore been noticed, and that is in regard to the votes 
 of Peter Marken. Frank B. Genovar, and Nester Genovar. It is claimed 
 that these voters were non-residents of said county. But we think a 
 careful examination of the evidence clearly shows that they were all 
 residents of said county and had been the requisite length of time. See 
 their evidence. Record, pp. 490-499. The vote of this county should be 
 counted as returned by the precinct officers: 
 
 Contestant 508- 
 
 Coutestee 331 
 
 VOLUSIA COUNTY. 
 
 The only question arising in this count} which we need here notice 
 is the question in regard to the vote of Henry Clay. Contestee offered 
 evidence to show that Clay voted for contestant under intimidation. 
 But your committee think it is altogether insufficient to establish the 
 fact. The testimony of Fitts. the only witness examined by contestee, 
 does not make out a case of coercive voting; if even it did, standing 
 alone, it is overwhelmingly contradicted by the evidence of three cred- 
 ible witnesses, two of whom were officers of the election at the precinct 
 where said Clay voted. Fitts. Record. 525-'0-'7. See evidence of Chand- 
 ler, 112: Brown. 173: Oduno, 174. 
 
 Therefore the vote of this county should be counted according to the 
 returns of the precinct officers, as follows : 
 
 Contes-tunt 474 
 
 Coutestee 172 
 
 Your committee has now completed the investigation, and find the 
 following to be the true vote, by counties, of the contestant and con- 
 test. 
 
 Counties. Finley. ; Bisbee. 
 
 Alacb.ua 
 
 1,112 i 
 
 1.57S 
 
 Baker 
 
 238 
 
 143 
 
 Brevard 
 
 Ill 
 
 56 
 
 Bradford 
 
 706 
 
 199 
 
 Clay 
 
 315 
 
 126 
 
 Columbia 
 
 901 
 
 717 
 
 Duval 
 
 l,45'.t 
 
 2,331 
 
 Dade 
 
 5 
 
 8 
 
 Hamilton 
 
 C14 
 
 329 
 
 Madison 
 
 1,082 
 
 1,521 
 
 Marion 
 
 
 
 1,548 
 
 Nassau 
 
 1 670 
 
 794 
 
 Orange . 
 
 920 
 
 194 
 
 Putnam 
 
 617 
 
 579 
 
 Snwaunee 
 
 629 
 
 45& 
 
 St. John's 
 
 508 
 
 331 
 
 Volusia 
 
 474 
 
 172 
 
 Total vote of each 
 
 11.329 
 
 11, 077 
 
 ilajoritv for 
 
 252 
 
 
 
 1 i 

 
 106 DIGEST OF ELECTION CASES 
 
 This conclusion has been reached through as careful an examination 
 of the evidence and the law applicable thereto as yonr committee was 
 able to make. This result was arrived at, as has been heretofore shown, 
 by excluding from the count Archer precinct, No. 2, in Alaclma County, 
 and by counting the rest of the vote of the district as returned by the 
 precinct officers, after deducting therefrom such votes as in the opinion 
 of your committee were illegal. 
 
 Your committee desire to add that the evidence in this case shows 
 that no unfairness, dishonesty, or fraud in the conducting of the elec- 
 tion at any of the precincts in the entire Congressional district was 
 attempted or committed, except at Archer precinct, No. 2, in Alachua 
 County. 
 
 Your committee, therefore, recommend the adoption of the following 
 resolutions : 
 
 Resolved, That Horatio Bisbee, jr., is not entitled to a seat in this 
 House as a Representative in the Forty-fifth Congress from the second 
 Congressional district of Florida. 
 
 Resolved, That Jesse J. Finley is entitled to a seat in this House as a 
 Representative in the Forty-fifth Congress from the second Congres^ 
 sional district of Florida. 
 
 THOMAS. R. CORE. 
 JOHN T. HARRIS. 
 MILTON A. CANDLER. 
 E. JOHN ELLIS. 
 WILLIAM M. SPRINGER. 
 JERE N. WILLIAMS. 
 
 FEBRUARY 5, 1879. Mr. PRICE, from the Committee on Elections, sub- 
 mitted the following 
 
 VIEWS OF THE MINORITY: 
 
 There has been two counts by the State board of canvassers in Flor- 
 ida; the first giving Mr. Bisbee a majority in this district of 141 votes; 
 the second, made under a mandate of the supreme court of that State, 
 gave Bisbee an increased majority; but contestant insists that in each 
 count certain precincts were improperly rejected and others improperly 
 counted. The committee have, therefore, preferred to start into this 
 investigation, taking the entire votes cast in all the precincts and coun- 
 ties of this Congressional district as a basis of their investigation, 
 whether the same were improperly counted or rejected by the State or 
 county canvassing boards, and then make such deductions from or addi- 
 tions to the vote of contestant or contestee as the law and evidence 
 demand. 
 
 The following table shows the entire vote cast in the district, can- 
 vassed and not canvassed : 
 
 Counties. 
 
 Whole No. 
 of votes. 
 
 For Fin- 
 ley. 
 
 For Bis 
 bee. 
 
 
 2, 003 
 
 1,082 
 
 1, 521 
 
 
 1,085 
 
 629 
 
 456. 
 
 
 943 
 
 614 
 
 329 
 
 
 1, 018 
 
 901 
 
 717 
 
 Alachua .. 
 
 3, 242 
 
 1, 255 
 
 1.972
 
 FINLEY VS. BISBEE. 
 
 107 
 
 Counties. 
 
 Whole No. 
 of votes. 
 
 For Fin- 
 ley. 
 
 For Hi* 
 bee. 
 
 Bradford . 
 
 91)6 
 
 706 
 
 199 
 
 Baker 
 
 :isi 
 
 238 
 
 143 
 
 
 I.4M 
 
 670 
 
 794 
 
 Duval 
 
 3 MI: J , 
 
 1,468 
 
 2,331 
 
 
 839 
 
 508 
 
 331 
 
 
 1 196 
 
 617 
 
 579 
 
 
 2,510 
 
 962 
 
 1,548 
 
 
 646 
 
 474 
 
 172 
 
 Orar "e... . 
 
 1, 120 
 
 926 
 
 194 
 
 Brevard 
 
 167 
 
 111 
 
 56 
 
 Bade 
 
 13 
 
 5 
 
 8 
 
 Clav .. . 
 
 441 
 
 315 
 
 126 
 
 
 
 
 
 
 22, 957 
 
 11.481 
 , 11,476 
 
 11,476 
 
 
 
 5 
 
 
 
 
 
 
 See printed record, pp 179 to 204. 
 
 Contestant admits that some illeg.il votes were cast for him, which 
 ought to be deducted from the above statement of the vote. 
 
 Contestee insists that said illegal votes amount to several him lied. 
 They each insist that precincts included in the above table have been 
 counted which should be rejected, and neither contestant nor contestee 
 admits that this table shows the true vote cast at this election. Hence 
 it becomes necessary to take up the questions presented and to decide 
 them, in order to ascertain who is entitled to the seat from this district. 
 
 Contestant rests his case on two questions : 
 
 First. That the vote at Archer precinct, poll No. 2, in Alachua County, 
 must be rejected on account of gross frauds committed by the election 
 officers. 
 
 Second. That the vote of two precincts in Baker County and the vote 
 of Clay County, which were not counted by the State board of canvassers 
 in the second canvass (but are intended in the above table), shall be 
 counted because they were rejected without sufficient cause. 
 
 ARCHER PRECINCT, POLL NO. 2, ALACHUA COUNTY. 
 
 Archer precinct, in Alachua County, just prior to this election, was 
 provided with two polling places to give ample facilities for voting. They 
 are called Archer No. 1 and Xo. 2, and were located in the village of 
 Archer, in the same building, in opposite ends of an old storehouse. The 
 votes returned from these polls are as follows: 
 
 Bisbee. Finley. 
 
 Poll No. 1 54 98 
 
 Poll No. 2 399 141 
 
 Total. 
 
 453 
 
 239 
 
 The contestant makes no objection to poll Xo. 1. and there is no proof 
 in the record which attacks the return from that poll; but contestant 
 insists that the officers of the election at poll No. 2 were guilty of gross 
 fraud in the manner of conducting the election, and made out and re- 
 turned a false and forged return showing more votes for contestee than 
 were cast for him. 
 
 A large volume of testimony in regard to the frauds, forgery of the 
 names of part of the officers to the returns, and gross irregularities and
 
 108 DIGEST OP ELECTION CASES. 
 
 disregard of the law, is to be found iu the record of this case. In fact, 
 both contestant and contestee agree that gross fraud was committed, 
 disagreeing only as to who profited thereby. It is therefore unnecessary 
 to quote the evidence on this point except so far as it bears upon other 
 questions. It will be seen that the returns show 541 votes polled for 
 Representative in Congress at this poll. Contestant insists that the 
 return is false because at the close of the count of the vote it was pub- 
 licly announced that Drew, the Democratic candidate for governor, had 
 received 136 votes, and Stearns, Republican candidate. 180 votes, and 
 that the vote for the other candidates differed very little from the vote 
 for governor. 
 
 There is a conflict in the evidence as to who made this announcement, 
 and whether it was made before or after all the ballots had been can- 
 vassed. Also, whether the vote cast for governor only was announced. 
 Some of the witnesses swear that the vote cast for other candidates was 
 also announced, including the vote for Congress We think the weight 
 of proof is that either Black, one of the inspectors, or Vance, the clerk, 
 did, about the close of the canvass, announce the vote for governor as 
 136 for Drew, 180 for Stearns. And also stated that the vote for the 
 other candidates differed little from the vote for governor. Much stress 
 is laid on this announcement in argument, but there is no law in Florida 
 requiring any announcement of the vote to be made by any one. And 
 the announcement (an unofficial act) having been made by Black or 
 Vance, who, it is insisted by contestant, were corrupt and committed 
 both perjury and forgery, while acting in the official capacity of officers 
 of the election at this poll, it would seem that little importance or 
 weight should be given to an announcement made by them. Tucker, a 
 witness for contestant, swears that about the time the announcement of 
 the vote was made he took, from a tally-sheet kept by Vance, the vote 
 according to the tallies, and that this tally-sheet showed 141 votes for 
 Finley, 180 for Bisbee. Both Black and Vance are examined, and swear 
 that this statement of the vote is untrue: that they alone counted the 
 vote, and the result was 141 for Finley, 309 for Bisbee. Green R. Moore 
 and Floyd Dukes are shown by the evidence to have done nothing in 
 canvassing the vote, except to string the ballots and put them back in 
 the box. Contestant also shows that Vance and Black returned the 
 ballot-box to the clerk of the circuit court, claiming that they had re- 
 turned the ballots as cast at that poll. 
 
 .Moore also swears that there were but L'77 ballots canvassed ; that 
 there were only 318 names on the poll list; and the result announced 
 was made up from the poll-list. At the county canvass, afterward, at 
 the clerk's office in Gainesville, the box was opened and only 277 ballots 
 were found in tbe box. The laws of Florida make no provision for pres- 
 ervation of ballots after they have been canvassed ar the polls. Con- 
 testant also proves by Samuel T. Fleming, a Democrat, that he was at 
 poll No. 1* during the entire day, except during the adjournment for din- 
 ner: that he occupied a favorable position to see the voting and voters : 
 and that lie took down on slips of paper the names of all persons who 
 voted at that poll from the outside of the building. And he makes, as 
 an exhibit to his deposition, a list of names which he says is a copy of a 
 list kept by him there that day. He says that he is a merchant at 
 Archer, and well acquainted with nearly all who voted. The list ac- 
 companying Fleming'* deposition contains 305 names. 
 
 He testifies that all tiiese voters \ve.v < lored exc" t 15: he gives the 
 names of the white voters on his list. There is a conflict in the evidence 
 as to how long Fleming was absent fVom the polls, an I whether absent
 
 FINLEY VS. BISBEE, 109 
 
 more than once during the day, and whether voting did or did not con- 
 tinue during his absence. We deem it unnecessary to attempt to recon- 
 cile the testimony on this point, as it is clearly shown that persons voted at 
 that poll at that election from the "outside of the building" whosenames 
 are not on Fleming's list. The proof clearly shows that the first person 
 who voted was Frank Danzy, a well-known colored preacher in that lo- 
 cality; that they all stood back and called him to come forward and vote 
 first, "for luck," anA he did so, yet his name is not on Fleming's list. 
 From this it is evident Fleming was not present when the voting com- 
 menced. Moreover, 17 other persons are called who swear they voted at 
 that poll on that day from "the outside of the building." They were 
 sharply cross examined as to their residence, &c.; they are not contra- 
 dicted and no attempt is made to do so. How many votes were cast 
 from the inside of the building is not clearly shown, but it is shown that 
 the number was not large. 
 
 This is contestant's ease as to Archer, Xo. 2, and he asks that the re- 
 turns be set aside for the reasons stated. 
 
 Contestee admits that the returns do not show the true vote as cast. 
 He insists that the ballot-box was tampered with before the count was 
 made, and that Democratic tickets were put in and Republican tickets 
 taken from the box. He proves by Black and Vance that they made the 
 count, ami that the return they made was a true return of the ballots 
 found in the bo.r. Black testifies that he has been a resident for several 
 years at Archer, and is acquainted with the people in that vicinity, and 
 that he does not remember over ten Democrats who voted that day at 
 poll l', and was surprised to find so many Democratic ballots in the 
 box. 
 
 He testifies he was ottered a bribe by one Dr. Carew, a leading Dem- 
 ocrat at Archer, to swear that the true vote cast at poll 2 was, for Fin ley, 
 141 ; Bisbee, 180. Carew is not called to contradict this statement. 
 
 Montgomery, the Republican candidate for lieutenant-governor, testi- 
 fies that he received information from a friend, who was a Democrat, that 
 some Democrats at Archer intended to have the ballot-box at Archer 
 tampered with, and that Green R. Moore was relied on to do that thing. 
 
 Montgomery tried to prevent Moore's appointment as an officer to hold 
 that election. Strict rules of evidence would perhaps exclude this tes- 
 timony as hearsay, but this information seemed to be in accord with sub- 
 sequent developments. 
 
 The sitting member also introduces testimony to show that Archer 
 precinct is and has been a large Republican precinct. Witnesses state 
 that in 1872 the Republican vote was about 200, the Democratic vote 40. 
 In 1874, the Republican vote about 300, the Democratic vote about 30. 
 The record and report in Finley r.s\ Walls, Forty-fourth Congress (at the 
 election held in the fall of 1874 at Archer), was Republican 293, Demo- 
 cratic 25, giving a Republican majority of 268. It will be seen accord- 
 ing to the returns that the Democratic vote increased from 1874 to 1870 
 nearly nine hunfltwi per cent., while the Republican vote increased a lit- 
 tle more than fifty per cent. No proof has been offered to explain this 
 extraordinary increase of tlie Democratic vote at this poll. The other 
 precincts in this county show no material change in the vote of 1874 
 and 1870, while this precinct shows a Democratic increase of nine hun- 
 dred per <-ent. This, contestee insists, is conclusive of fraud, taken in 
 connection with the absence of any proof explaining it; and the further 
 fact that Fleming, contestant's own witness, swears that during the 
 recess for dinner he saw the ballot-box in the possession of two men 
 named Washington and Edge, one a Republican, tie other a Democrat.
 
 110 DIGEST OF ELECTION CASES. 
 
 Mr. Fleming's testimony on this point : 
 
 Q. Who had charge of the ballot-box during the dinner adjournment f A. Mr. 
 Edge and Mr. Washington. They were not inspectors, but were selected, one of them 
 a Democrat, the other a Republican, to watch the box, and they stood up there and 
 watched the box during that time, which was in public view. 
 
 Fleming testifies that he went to dinner; therefore he could not know 
 what was done with the box in his absence. 
 
 Contestee, in explanation of the fact that the Republican vote in the 
 precinct had slightly increased between 1874 and J876, proves that a 
 very considerable number of colored voters had come into the district 
 because of the establishment of new sawmills, turpentine distilleries, 
 and the opening up of turpentine orchards. Others have taken up 
 homesteads from some public lands lying in the precinct. The evidence 
 shows that some 400 colored Republicans were organized into Republican 
 clubs at Archer and vicinity, that they were directed to and did vote at 
 Archer, and that other Republicans not belonging to clubs also voted 
 there. 
 
 The conclusion the committee have come to is that the officers of the 
 election, or some of them, were guilty of gross fraud, and a reckless dis- 
 regard of the law, in conducting the election, the canvassing of the votes, 
 and making returns. This is more readily believed when it is shown 
 in the proof that some of them have made contradictory statements of 
 important facts connected with the canvass, count, and result of this 
 election. Green R. Moore is shown to have made contradictory affida- 
 vits one stating that the vote polled was truly returned ; another that 
 the return was false and fraudulent, and signed in blank. Floyd Dukes, 
 another inspector, also figures in two contradictory affidavits, but there 
 is some doubt, from the testimony, whether he was actually sworn to 
 one of them. The character of Black, another inspector, is proven to be 
 bad. They are all sworn in this case, contradict each other, and it is evi- 
 dent that some of them have sworn falsely. Under these circumstances 
 we feel compelled to reject the returns from this poll as wholly unrelia- 
 ble and worthless to establish the true vote cast at that poll. 
 
 But the proof shows that an election was opened and held at a time 
 and place established by law by officers legally appointed to hold an 
 election at Archer poll, No. 2, and that many legal voters were there, 
 and voted. In such cases we find that we are remitted to such other 
 evidence as may appear in the record to ascertain the vote for contest- 
 ant and contestee. We cite the following authorities on this point: 
 
 When a return is rejected legal votes are not lost; they may be proven by second- 
 ary evidence, and when thus proven may be counted. (McCrary'e Law of Elections, 
 section 302.) In which case each candidate must prove, by calling the voters as wit- 
 nesses or otherwise, the number of votes received by him. (Ibid., section :J91.) 
 
 This rule was adopted, and the testimony of the voters held conclu- 
 sive, in the following cases: Reed vs. Julian, 2<1 Bartlett, 823, 828, 832; 
 Wash burn vs. Voorhees, idem, 54,00, 62, and 04; Lloyd vs. Newton, 
 Clark's & Hall's R., 520; Vallandigham vs. Campbell (1858), 1st Bart- 
 lett, 223, 22S, 220, and 230. See also report of Mr. Lamar, which was 
 adopted by the House. Reed vs. Kneas, Brightly, 360, 371, 372. 
 
 In the case of The People ex rcl Judson vs. Thatcher, reported in 7th 
 Lansing N. Y. Reports, the court held that the testimony of the voters 
 was higher evidence than the returns, (pp. 280, 281, 282, and 286.) 
 
 In the case of Washburn vs. Voorhees, Hamilton Township was re- 
 turned voting as follows: Washburn, 143; Voorhees, 498. Washburn 
 called the voters themselves and showed that twenty seven more votes
 
 F1NLEY VS. BISBEE. Ill 
 
 were cast for him than were returned ; the returns were set aside, and 
 the evidence of the voters taken establishing his vote. Mr. Voorhees, 
 who received according to the returns 498 votes, made no effort to es- 
 tablish his vote. The evidence incidentally showed that four persons 
 voted for him ; these only were counted for him. The committee, in 
 citing the authorities upon which they base their decision, say: 
 
 But tbe rejection of a return does not necessarily leave the votes actually cast at a 
 precinct uncounted. It only declares that the return having been shown to be false 
 shall not be taken as true, and the parties are thrown back upon such other evidence 
 as is in their power to show how many voted and for whom. So that the entire vote, 
 if sufficient care be taken and the means are at hand, may be shown, and not a single 
 one lost not withstanding the return is rejected. It is (bund, as has already been stated, 
 that 170 votes were cast at this precinct for Mr. Washburn. There was also the testi- 
 mony of four persons that they voted for Mr. Voorhees. 
 
 In Eenl vs. Kneass, 584, Brightly ? s L. Cases, 366, 372, the court, iu 
 answering an objection urged to testimony of voter, said : 
 
 Let the doctrine be once established as constitutional law that an elector cannot 
 he heard in such a case to prove how he voted, in order to establish the falsity of an 
 election return, and the suffrage of every man in the country is placed under the con- 
 trol of the election officers, who may make him appear to have voted exactly as they 
 please. According to this doctrine, if rive out of six hundred voters in a given dis- 
 trict should vote for one candidate, and their votes should all be returned as given 
 to another, no adequate means exist in any body, legislative or judicial, iu the com- 
 monwealth, to relief against so cr\ ing a wrong ; for lefusiug to hear the testimony of 
 electors to prove how they voted, 'he establishment of fraud, in such a case, would 
 be impossible. (Brightly's L. Cases, 371, 372.) 
 
 In Vallandigham vs. Campbell (1858) there were three reports, and 
 the report submitted by Lamar, and signed by four members, was finally 
 adopted Inj the Houxe. (1st Baitlett R., 223, 228, 229, 230.) 
 
 In this report of Lamar's there is an elaborate review of all the au- 
 thorities, English and American, upon the questions of the adiuissibility 
 of the declarations and testimony of voters as to their qualifications, 
 and for which candidate they voted. /</., 230. 
 
 This report says : 
 
 The admisxibility of evidence, consisting of the dtclaration of roter*, as to any matters con- 
 cerning thiir oicn voting, has been sctthd in the British Parliament repeatedly and uniformly 
 for over one hundred years, and is no longer to be questioned. Id., 230. 
 
 The point was expressly and deliberately decided in the great New Jersey case in 
 l-4i, usually known as the B'oad Seal case, aud the evidence was unanimously re- 
 ceived, and a large number of votes determined upon it. This precedent has been gen- 
 erally approved erer since, and the undersigned attaches more importance to it than usual, 
 because it teas unanimous in a highly partisan case, and because of the great ability and dis- 
 tinction of the gentlemen icho composed the committee. Id., 231. 
 
 As to a number of voters whose declarations are given in evidence, it appears upon 
 the paper and testimony that their attendance as witnesses could not be procured, 
 but it is not necensary in muh cases to first call the rotei' and see if he will claim his privilege 
 of refusing to answer. Id., 231. 
 
 The authorities above cited fully sustain this principle, and show sev- 
 eral cases where it has been acted upon both by Congress and the courts 
 of the country. 
 
 Contestee in this case has called 298 voters, who swear that they voted 
 for him at Archer Xo. 2 at this election. Witnesses also prove that 10 
 others, whose names they give, and who are dead or removed from the 
 county since the election, also voted for him at this poll. Moore, one of 
 the inspectors, proves that two others voted for contestee, but Moore is 
 not corroborated on this point, without which we regard his evidence 
 as of li' tie value. Contestee shows by these voters that they were regu- 
 larly organized into Republican dubs in that precinct; that the officers 
 of their clubs distributed to them their tickets; fifty-four of them can
 
 112 DIGEST OF ELECTION CASES. 
 
 and did read or spell out the names on their tickets ; they all swear they 
 voted the straight Republican ticket. All of them when asked (which 
 was a large majority of them) also swear from whom they received their 
 tickets, giving the names of the leading Republicans of the district, who 
 were the officers of the Republican clubs. These men who distributed 
 the tickets, and who could read and write, were called, and testified that 
 they did distribute tickets, and none but Republican tickets, to the 
 members of their clubs (one of them the night before the election, the 
 remainder of the day on the election), having been assigned to the duty 
 of seeing that all Republicans who could not read were furnished with 
 straight Republican tickets. It is proved by the voters themselves that 
 they voted the identical tickets they received from the officers of their 
 clubs, and they distributed none but straight Republican tickets. Ex- 
 hibits of the ticket distributed and voted are made in the record, and 
 show that the ticket included ; 'For Congress, Horatio Bisbee, jr." Those 
 who could read swear that Bisbee's name was on their ticket. Some 
 of the voters who could not read recognized the straight Republican 
 ticket they voted, by reason of the manner in which a llag was placed 
 at the head of a ticket. The Democratic ticket is shown to have had a 
 different flag. There is no evidence in the record showing that any 
 ticket except the straight Republican and straight Democratic tickets 
 were in circulation or voted at that poll during the day, and no effort is 
 shown in the proof to have been made to distribute Democratic tickets 
 among these colored voters. The absence of such testimony we regard 
 as an important fact in the case. If Democratic tickets had been dis- 
 tributed among these voters at poll No. 2, contestant could easily have. 
 shown it ; as he has not attempted to do so when his whole case rested 
 on this poll, it must be presumed he could not. And surely, in the ab- 
 sence of all proof of this character, it cannot be denied that contestee is 
 entitled to 308 votes which the voters themselves and corroborating 
 testimony prove were cast for him. Now, contestant makes no effort to 
 prove his vote in like manner, nor does he attempt to account for the 
 extraordinary increase of the Democratic vote returned and claimed at 
 this precinct. He puts Fleming's list in evidence, and admits the per- 
 sons whose names are on the list voted at that poll at that election. 
 Mr. Bisbee, having this list before him (the poll-book at this precinct 
 was lost or mislaid), called 283 voters on Fleming's list, who swear they, 
 together with eight others on this list, voted the full straight Republi- 
 can ticket, including for Congress Mr. Bisbee. This would leave Mr. 
 Finley 14 votes had he called the remainder of Fleming's list, and they 
 had sworn they voted for him. The testimony does not show that there 
 was but one Democrat among all the colored voters at this precinct, and 
 he was appointed inspector at this poll. This clearly shows that the an- 
 nouncement made at the close of the poll, that Mr. Fiuley received 141 
 votes, Mr. Bisbee 180, is not true. 
 
 But contestant insists that, as witness Tucker looked over the tally- 
 sheet which Vance kept, and found from it that the vote for him was 
 141, and for Mr. Bisbee 180, that he can and does rely on this proof to 
 show that he received 14i votes. 
 
 This position we regard as wholly untenable. Contestant himself 
 attacks Vance and Black ; charges and insists he has proven that they 
 are not only capable of committing fraud and forgery, but were actually 
 guilty of these crimes as officers at that election, and were also guilty of 
 perjury in making a false return and testing of the vote, ('nnte.stanT, 
 by his proof, aided by the proof of coutestee, has convinced this commit- 
 tee that the official acts of the officers of this election. Vance included,
 
 F1NLEY VS. BISBEE. 113 
 
 are unreliable, that gross fraud was committed, and the returns have 
 been thrown out as contestant insisted should be done. How, then, can 
 the committee go back and take a tally-sheet kept by Vance and regard it 
 as evidence to show the number of votes received by contestant f Tucker, 
 who says he took the figures from the tally-sheet, does not and cannot 
 swear that the tally-sheet was correctly kept. Vance, who did keep it, 
 swears that no such count was kept, and if it had been so kept would 
 have been false. If such figures were found on the tally-sheet it is evi- 
 dent from the other testimony in this case that they were untrue. Tucker 
 represents that the tally-sheet showed that Mr. Bisbee received 180 votes. 
 Yet Mr. Bisbee has shown that he received at least 308 votes, which is 
 128 votes more than the tally-sheet gave him. 
 
 This is leaving out altogether contestee's theory that the ballot-box 
 was stuffed before the count commenced. We cannot say that the offi- 
 cers of an election were false to their trust guilty of gross frauds and 
 for that reason reject their returns, and at the same time say that the 
 vote canvassed by them for Mr. Finley, as shown by a tally-sheet kept 
 by them, is sufficient proof, or any legal proof, that he received 141 
 votes at that poll. We think that this position of contestant cannot be 
 maintained on any principle of law or evidence. We cite the following 
 authorities on this question: 
 
 When fraud or gross culpable negligence on the part of the officers of an election is 
 shown, all their acts and doings are rendered unworthy of credit and must be disre- 
 garded. (See McCrary, section 303.) 
 
 We repeat, therefore, the opinion expressed in a former chapter: that a willful and 
 deliberate fraud on the part of such an officer being clearly proven, should destroy all 
 confidence in his official acts, irrespective of the question whether the fraud discov- 
 ered is of itself sufficient to change the result. The party taking anything by an elec- 
 tion conducted by such an officer must prove his vote by evidence other than the return. 
 (McCrary. section 431.) 
 
 Where the conduct of the election officers is such as to destroy the integrity of the 
 return, and to avoid the prima facie character which they ought to bear as evidence, 
 due and adequate proof must be demanded of each votereliedon. (Opinion of the court 
 in Mann r*. (Jassada, 1st Brewster, page 60. See also Thompson vs. Ewing, a case from 
 I'ennsylvania courts, reported in 1st Brewster, 107; Weaver rs. Given, 1st Brewster, 
 140; Giveus m. Sre wart, - Jd Brewster, page 2; Jenkins vs. Hill, N. H. Reports, page, 144.) 
 
 These well-settled principles show that contestant in a case like this 
 cannot rely upon unofficial statements of the vote proven to be false, or 
 a tally-sheet also proven to be false, to establish his vote. Indeed, they 
 go further, and show that the returns being rejected for gross fraud on 
 the part of the election officers, he cannot rely upon any act of theirs, 
 official or otherwise, to establish his vote. 
 
 A "tally sheet" is not mentioned in the laws of Florida. No such pa- 
 per is required to be kept or returned. If such a paper was produced, 
 it would be inadmissible as evidence, even if no question was made of 
 its having been falsely kept. 
 
 But contestant seeks to establish his vote at this poll by the evidence 
 of a witness who looked over such a paper and took down certain figures 
 from it. When he insists, and the committee concurs, that the officer 
 who kept it was so false to his trust and fraudulent in his conduct that 
 his return of this poll cannot be accepted as the truth, and when other 
 and reliable evidence clearly shows that the figures on said tally-sheet 
 were false, certainly nothing in the rules of law and evidence will per- 
 mit this. 
 
 In Chisman r.s. Anderson, of Kentucky, first session Thirty-sixth Con- 
 gress, the admissibility of any statement of the vote at a precinct not 
 signed by the officers of the election was pointedly raised and settled. 
 In that case the poll-book from Casy precinct was rejected as evidence 
 H. Mis. 58 8
 
 114 DIGEST OF ELECTION CASES. 
 
 on the ground that it was not signed by any officer of the election. It 
 was made out in due form and stated the vote for each candidate, but 
 it was not signed, and the committee held that it was not admissible. 
 On this decision the sitting member retained his seat. 
 
 Had such poll-book been admitted the contestant would have bad a 
 ^majority. (1 Bartlett's Rep., p. 334.) 
 
 The same question arose in Barnes vs. Adams, Forty-first Congress, 
 and the result depended on its decision. Mr. McCrary drew the report, 
 which, on this point, reads as follows: "We have already said that 
 Glades precinct, in Pulaski County, must be rejected because it is not 
 certified to be correct by any officer. This objection is substantial and 
 not technical. The paper purporting to be a poll-book for this precinct 
 proves nothing whatever. To admit such a paper as evidence would be to 
 set aside all rules and open wide the door for fraud." (2 Bartlett's Rep., 
 771.) In this case there was no minority report, and the report was 
 adopted by the House without a division. (Id., p. 760.) That the con- 
 tents of a tally-sheet are not admissible under the laws of Florida was 
 pointedly decided in the case of Finley vs. Wall, Forty-fourth Congress. 
 
 The report in this case, on page 22, reads as follows: 
 
 The law is that where fraud is proved to have been committed by the officers of an 
 election in conducting the election, 110 reliance can be placed upon any of their acts, 
 and their return must be rejected as wholly unreliable. The party claiming under the 
 election must prove the actual vote in some other way. The only evidence as to what 
 the vote was is from John V. Brown (page 79), one of the challengers, a Conservative, 
 who says: "Finley got 11 and Wall 588, I think. I derived my information from be- 
 ing present and keeping a tally-sheet." This certainly cannot establish the vote, as 
 his testimony at most can only be evidence of the actual number of votes cast, but 
 one of the principal objections is that illegal votes were cast, and this, too, with the 
 guilty knowledge of the officers of the election. 
 
 On this decision, excluding the contents of the tally-sheet, Mr. Fiuley 
 was seated. 
 
 The law pointed out a plain and easy method, to wit, calling the voters 
 themselves. This contestant has failed to do. On this point we think 
 the language of the report in the case of Read vs. Julian very pertinent. 
 The report says : 
 
 The committee therefore regards the fact that contestant made no eftbrt whatever 
 to prove the votes which he received, or to which he was entitled, in the district 
 assailed by contestee, as very strong circumstantial evidence against him. 
 
 The only other satisfactory reason which we can assign is the fact that so many 
 voters had been called and sworn on the other side, that not many were left for the 
 benefit of contestant, even had he seen fit to make any effort to establish his vote at 
 this precinct by calling and swearing the voter. 
 
 The committee are left without evidence that contestant received any 
 vote at that poll, except that Moore swears he thinks Dukes voted for 
 him. But as we have rejected two votes for Bisbee on Moore's testimony 
 uncorroborated, we are compelled to hold this vote not sufficiently 
 proved. Having rejected the return from this poll, we deduct from 
 contestant and contestee the number of votes returned. Contestee hav- 
 ing proven by other evidence that he did receive at that poll 308 votes, 
 we a<id this number to his vote. 
 
 The total vote in the entire district as returned, and the vote in pre- 
 cincts not canvassed, was as follows: 
 
 Bisbee. Finley. 
 
 11,470 11,481 
 
 Deduct vote returned at Archer No. 2 399 141 
 
 11,077 11,340 
 Add vote at Archer No. 2, proven by Mr. Bisbee 308 
 
 Total.. 11,385 11,340
 
 FINLEY VS. BISBEE. 115 
 
 In the second canvass made by the State canvassers under mandate 
 of the supreme court, there were two precincts in Baker County and the 
 returns from Clay County thrown out. In the first count made by the 
 State canvassers they were included. But Jasper precinct of Hamilton 
 Conirty was excluded. 
 
 We are unable to find sufficient evidence in the record to warrant the 
 rejection of the returns from either of the precincts in Baker County or 
 the returns from Clay County. And they are included in the foregoing 
 tables, subject to the corrections on account of illegal votes, when we 
 reach tliat subject. 
 
 This is the case on the side of contestant. 
 
 THE CASE OF CONTESTEE. 
 
 The sitting member has raised a number of questions in the record, 
 some of them involving much labor and care in their investigation. 
 First, that a large number of voters in the different counties in the Con- 
 gressional district voted without having registered according to the laws 
 of Florida. Second, that a large number of foreign -born persons voted 
 without complying with section 3, Article IV, constitution of Florida. 
 Third, that a large number of persons not possessing other legal quali- 
 licaiions f voters, under the laws of Florida, were permitted to vote 
 (this includes minors, idiots, ins ue, non residents, &c.). Fourth, that 
 ceitai;' prcei.icts included in the foregoing table should be rejected for 
 the reasons set out in the pleadings and proofs. If your committee 
 have correctly setiled the questions involved at Archer Xo. 2, Alachua 
 County, it would seem a labor not absolutely necessary to proceed to 
 the investigation of other and difficult questions which cannot reduce, 
 but may increase contestee's majority. But the sitting member insists 
 upon an examination of the questions raised by him, because he says 
 that the proof in the record shows his election regardless of any decision 
 that can be made against him at Archer No. 2. It will be necessary to 
 state some ot the provisions ot the constitution and statutes of Florida, 
 to fully understand the law in regard to registration and to foreign -born 
 voters. The present constitution was adopted in 1868, and Article IV 
 of the constitution relates to elections. The sections bearing upon ques- 
 tions raised in the record are as follows: 
 
 BfcC. 1. Kvery male peison of the age of twenty-one years and upward, of whatever 
 race, color, nationality, or previous condition, who shall at the time of offering to 
 vol.- . < a citi/cn of the Uniied States, or who shall have declared his intention to 
 become such in i-onforuiity to the laws of the United States, and who .shall have re- 
 sidcd aixi had his habitation, domicile, home, and place of permanent abode in Florida 
 fur 01, e year, and in tin- county for six months next preceding the election at which 
 In- sli ill dlt'cr to vote, shall in such county be deemed a qualified elector at all elec- 
 tions miller this cons' itution. Every elector shall at the time of his registration take 
 and subscribe to the follow ing oath. 
 
 (Here the oath of allegiance to the Government of the United States 
 iind nl Florida is set out.) 
 
 Six 1 . -'. No person under guardianship, non compos mentis, or insane, shall be quali- 
 lied t." vote at any election, nor shall any person convicted of felony be qualified to 
 vote a! any elce'ion unless restored to civil rights. 
 
 S KC. 6. The legislature, at its lirst session alter the ratification of this constitution, 
 slia.l l>y law provide fur the registration by the clerk of the circuit court in each 
 foimtx of all the legally-qualified voters in such comity and for the returns of elec- 
 tion ; and shall al.-o provide that after the. completion from time to time of such reg- 
 istration no [ier.sou not duly registered according to law shall be allowed to vote.
 
 116 DIGEST uF ELECTION CASES. 
 
 The first legislature in Florida after the adoption of the constitution 
 (1868) did provide for the registration of all the voters in that State, as 
 directed to do by section 6 above quoted. 
 
 Section 7 of "An act to provide for the registration of electors," &c. 
 (Laws of Florida, 1868, page 3), makes it the duty of the clerk of the 
 circuit court in such county to prepare suitable books and lists for the 
 registration of the names of all electors residing within such county. 
 Then the statute provides a caption, in the form of an oath, to be placed 
 in such book, so that each person registering would subscribe thereto. 
 The clerk is also instructed when and how to make the original registra- 
 tion, and an oath is prescribed which is to be administered to each person 
 when he registers. 
 
 SEC. 8. No person shall be entitled to vote at any election unless he shall have duly 
 registered six days previous to the day of election. 
 
 Section 9 provides : 
 
 That th county commissioners shall meet at the office of the clerk of the circuit 
 court within thirty days preceding the day on which any election shall he held and 
 examine the list of registered electors, and erase therefrom the names of such persons 
 as are known or may be shown to their satisfaction to have been dead, or ceased to 
 reside permanently in the county, or otherwise become disqualified to vote : Provided. 
 That if any person whose name may be erased shall, on offering to vote at any elec- 
 tion, declare on oath that his name has been improperly struck from the list of regis- 
 tered voters, and shall take the oath required to be taken by persons challenged, such 
 person shall have the right to vote. 
 
 Section 10 provides for furnishing the election officers at each pre- 
 cinct with a revised list of the registered voters of the county. 
 
 Unregistered voters. 
 
 The sitting member insists that a large number of persons at various 
 polls in eleven of the counties of the district voted, never having been 
 legally registered. He introduces, first, the poll list, showing who did 
 vote at each of the polls where such illegal votes were cast ; then pro- 
 duces either a certified copy of the original registration-book, including 
 the names of all persons who had been stricken off, or he produces a 
 copy of the revised list of registration, together with a list of the names 
 stricken off; thus presenting a certified copy of the names of all per- 
 sons who have ever been registered since the adoption of the new con- 
 stitution in 1868. By comparing the poll-list with the list of registra- 
 t on so produced, we find that many persons have voted who have never 
 bieen registered. If they were sworn at the polls, as the statute de- 
 mands, and took the oath that they had been registered and had been 
 improperly stricken off, then they must have sworn falsely, for the 
 record itself, the highest evidence, shows that they never were on the 
 registration-book, and hence were never stricken off. The contestant in 
 this case was the contestant in the Forty-fourth Congress, in the case 
 of Finley vs. Walls. He was given his seat upon a decision that the 
 votes not found on the revised list were not sworn as the law directs. 
 In this case they never were registered, and such oath, if taken, would 
 have been false. Their votes could not be received even it sworn. In 
 that case the officers of the election were called and proved how many 
 persons voted at each poll who were not on the revised registration-list 
 supplied by the clerk. In this case the voters, as shown by record evi- 
 dence, never did register. In the former case, where it was not ascer- 
 tained for whom the legal votes were cast, they were deducted from the
 
 FINLEY VS. BISBEE. 117 
 
 / 
 
 vote each candidate received, according to a rule which seems now well 
 established. It is proper here to notice an objection made by contestant 
 in regard to the evidence concerning the names that had been "stricken 
 off." He insists that this is no longer a record, and cannot be introduced 
 as evidence. This might be true if in "striking off" or "erasing" the 
 name of a voter from the "registration-book" it was so obliterated that 
 the name could not be ascertained; but such is not the fact. The name 
 "stricken off" is not so defaced that it cannot be made out. In fact, we 
 find in some cases the only striking out that is done is the writing at the 
 end of the name the words "removed," or " dead," or " convicted of felony ," 
 &c. (See Record, page 708 to 728.) Again, the proof shows in regard 
 to the county of Alachua that the clerk of the circuit court, in order to 
 prepare the revised list for the officers at the various polls at this elec- 
 tion, handed his " registration-book" to the printer to prepare the revised 
 lists necessary. But instead of printing a revised list, he printed the 
 names of those who were stricken off as w r ell as those who had not been 
 stricken off. A pen had been drawn through the names of those stricken 
 off, but they were still legible. (See evidence of Clerk Webster, Kecord, 
 page 137.) 
 
 The clerks of the circuit courts furnish, in the record of this case, lists 
 of names of all persons who have ever been registered in their county 
 since the adoption of the new constitution in 1868. They certify that 
 they are true and correct ; they include the names of those who had once 
 been registered, but are dropped or "stricken off" when revised lists are 
 prepared to send to the officers holding an election. We think this 
 evidence legitimate and proper. From these registration-lists and the 
 poll -lists we can, by comparison, clearly ascertain the names of all per- 
 sons who have voted but have never been registered. We also hold 
 that persons who have never been registered could not legally vote. 
 Upon this question we cite the following authorities : 
 
 Fiuley vs. Walls, Forty -fourth Congress: 
 
 If election officers receive a vote without preliminary proof, which the law makes an 
 essential prerequisite to its reception, snch vote is as much an illegal one as if the 
 voter had none of the qualifications required by law. 
 
 r.rightly's L. Cases, 453, 492, note. 
 
 State vs. Hilmoutel, 21st Wis., 560. 
 
 State vs. Stumpf, 23d Wis., 630. 
 
 16 Mich.. 342. 
 
 Registration is, under the constitutional laws of Florida, an essential 
 prerequisite before voting. The law tells the elector, unless you are 
 registered you shall not vote. It tells the officers of election they shall 
 not receive it. Hence, such illegal votes cannot be counted, either by 
 the courts or by unbiased legislative bodies, even after they are put in 
 the ballot-box. Where the proof shows for whom such illegal vote was 
 cast, we deduct it from the candidate who received it. Where it is not 
 shown for whom such illegal votes were cast, we adopt the well-settled 
 rule which was followed in the case of Finley vs. Walls. Forty-fourth 
 Congress. This rule is laid down by Mr. McCrary in his Law of Elec- 
 tions, section 298 (see authorities there cited), as follows : 
 
 In purging the polls of illegal votes the general rule is that, unless it be shown for 
 which candidate they were cast, they are to be deducted from the whole vote of the 
 electiou division, and not from the candidate having the largest number. 
 
 Of course, in the application of this rule, such illegal votes would be 
 deducted proportionately from both candidates, according to the entire
 
 118 DIGEST OF ELECTION CASES. 
 
 vote returned for each. Thus, we will suppose that John Doe and Kich- 
 ard Koe are competing candidates, and that the official canvass shows 
 
 Vofcna. 
 
 For John Doe 625 
 
 For Richard Roe 575 
 
 Total 1,200 
 
 Majority for Doe 50 
 
 But there is proof that 120 illegal votes were cast. The illegal vote is 
 10 per cent, of the returned vote, and hence each candidate loses 10 per 
 cent, of the vote certified to him. By this rule Doe loses 62 votes and 
 Eoe 57 votes, and the result, thus rendered, is as follows : 
 
 Doe's certified vote (V25 
 
 Deduct illegal vote 62^- 
 
 Total vote 562 
 
 Roe's certified vote 575 
 
 Deduct illegal vote 57 $ 
 
 Total vote 517^ 
 
 Majority for Doe 45 
 
 This seems to be now a well-established rule in questions like the one 
 before us. Below we have applied this rule, and the following table 
 shows the result by counties : 
 
 TABLE OF VOTES TO BE DEDUCTED PRO RATA. 
 
 Loss to contestant,and Contestee. 
 
 Contestant. Contestee. 
 
 Hamilton Connty 81. -l'.~> 4',', <>52 
 
 Alachn a County 52,351 19,272 
 
 Baker County 36,200 3,640 
 
 Columbia County 26,582 1,920 
 
 Suwannee County 3i). i ;'J 13,797 
 
 Clay County 6,>i'<> 
 
 Bradford County 21,201 5,473 
 
 Orange County 23,742 3,242 
 
 Volusia County 15.: 2,181 
 
 Putnam County 2,000 
 
 Total 304,815 92,177 
 
 Bringing forward the vote for each candidate, afrer deciding the 
 questions at Archer, No. 2, to wit: 
 
 Bis bee. Fiuley. 
 
 11,: 11,341) 
 
 Deduct unregistered votes !2 304 
 
 11,293 11,036 
 
 Foreign-born rote. 
 
 Contestee claims that 7G illegal votes were cast for contestant by for- 
 eign-born persons, a correct list of whom, with reference to the record, 
 is here given: 
 
 Alachita County. 
 
 1. Peter Dougherty voted for contestant, Record, p. 344. 
 
 2. Edward Wiel voted for contestant and admits he never was naturalized. Record, 
 p. 358. 
 
 3. Moses Endel voted for contestant. Record, p. 359. 
 
 4. William F. Flynn voted for contestant, Record, 359. 
 
 5. Hymen Pinkosiu voted for contestant. Record, p. 359. 
 
 6. William Schoeflm voted for contestant, Record, p. :>02. 
 
 7. John A. Cellon voted for contestant, Record, p. 364.
 
 FINLEY VS. BISBEE. 119 
 
 Foreign-born persons who voted at Columbia County without producing their naturalization 
 
 papers. 
 
 1. Carl A. Pueschell voted for contestant, Record, p. 453. 
 
 2. Daniel J. Crowley voted for contestant, Record, p. 454. 
 
 3. Julius Pot/darner voted for contestant, Record, p. 356. 
 
 4. Frank De Leno voted for conn-slant. Record, p. 4.".?. 
 
 5. Alexander Young voted for contestant, p. 45?;. 
 
 Nassau County List of foreign-born person* who voted at the Fernandina precinct, in this 
 count;/, without producing their naturalization papers. 
 
 1. Henry X. King voted for contestant, Record, p. 398. 
 
 2. Patrick Kelley voted for contestant, Record, p. 398. 
 
 3. C. H. Huot voted for contestant, Record, p. 399. 
 4 John Amen voted for contestant. Record, p. 399. 
 
 5. John Ellerman voted for contestant, Record, pp. 399, 400. 
 
 6. Albert C. Glaiber voted for contestant. Record, p. 400. 
 
 7. Richard H. Hobirk voted for contestant., Record; pp. 400, 401. 
 
 8. Mathew Downey voted for contestant. Record, p. 401. 
 
 9. John Hass voted for contestant. Record, pp. 401,402. 
 
 10. Henry IVterson voted for contestant, Recorl,p. 402. 
 
 11. John McGnire voted for contestant, Record, p. 402. 
 
 12. Michael Fitzpatrick vted for contestant, Record, p. 402. 
 
 13. Julius A. Klotz voted for contestant. Record, p. 403. 
 
 14. Henry Barker voted for contestant. Record, p. 40:;. 
 
 15. James Kelly voted for contestant. Record, p. 403. 
 
 16. Gnstav Stark voted for contestant. Record, p. 404. 
 
 17. P. W. O. Koerner voted for contestant. Record, pp. 404, 405. 
 
 18. Louis Lange voted for contestant, Record, p. 404. 
 
 19. Louis Lohinan voted for contestant, Record, p. 405. 
 
 20. John F. Lohman voted for contestant, Record, p. 406. 
 
 21. William Schmitzer voted for contestant, Record, p. 406. 
 
 22. James McGith'n voted for contestant, Record, p. 406. 
 [MeGirh'u was inspector.] 
 
 23. J. H. Mooney voted for contestant, Record, p. 405. 
 Record, p. 397. 
 
 Record, pp. 406, 407. 
 
 Putnam County. Votes of foreigners in this county without producing naturalization papers. 
 
 1. William Ivers voted for contestant, Record, p. 422. 
 
 2. George Muller voted for contestant, Record, p. 423. 
 
 3. John M. Ivers voted for contest int, Record, p. 424. 
 
 4. James Kennedy voted for contestant, Record, p. 425. 
 
 5. Edward Boyle voted for contestant, Record, p. 426. 
 
 6. John Beale voted for contestant, Record, p. 4'27. 
 
 7. Peter Peterman voted for contestant, Record, p. 428. 
 
 8. Andrew Shelley voted for contestant, Record, p. 429. 
 
 9. Frederick Tolley voted for contestant, Record, p. 429. 
 
 10. John H. Solowsky voted for contestant, Record, p. 430. 
 
 11. Bernard L. Lilliuthral voted for contestant, Record, p. 438. 
 
 Duval County. Foreign-born persons icho voted for contestant without producing their nat- 
 uralization paptrs as required by the constitution. 
 
 1. Henrv Peters. Record, pp. 547,f>4>. 
 
 2. Patrick P. Crolley, Record, pp. 548, 549. 
 
 3. Hugh Hearty, Record, p. 54H. 
 
 4. Thomas Scales. Record, p. 550. 
 
 5. Joseph M. Mitchell, Record, p. 551. 
 
 6. Joseph Jacqumain. Record, p. 551. 
 
 7. Charles P. Poetting, Record, pp. 551, 552. 
 
 8. Patrick Falen, Reeo-d, p. 552. 
 
 9. John Murphy. Record,]). 552. 
 
 10. Charles Gebhart, Record, pp. 564, 565. 
 
 11. William Rich, Record, pp. 565, 566. 
 
 12. Herman Elkin, Record, p. 5t><). 
 
 13. NicklesStobel, Record, p. :<;'.'. 
 
 14. Thomas B. Walsh, Record, p. 570.
 
 120 DIGEST OF ELECTION CASES. 
 
 15. Samuel Beiilisa, Record, p. 570. 
 
 16. Mathew Mahoney, Record, p. 575. 
 
 17. Frank Crolly, Record, pp. 575, 576. 
 
 18. John Higgins, Record, p. 576. 
 
 19. Henry Van Dollen, Record, p. 576. 
 
 20. John'Gray, Record, p. 577. 
 
 21. Joseph Santo, Record, p. 577. 
 
 22. Lewis Chicony, Record, p. 580. 
 
 23. Isadore Grunthal, Record, p. 581. 
 
 24. M. C. Colleton, Record, p. 581. 
 
 25. Hugo Grunthal, Record, p. 582. 
 
 26. Jacob Grunbiuger, Record, p. 583. 
 
 Volusia County. 
 
 Frank Boremaster, Record, p. 494. 
 Roderick Gillespie, Record, p. 494. 
 
 This list contains seventy-four names, for upon an examination of the 
 evidence we are not satisfied that the other two persons were foreigners. 
 
 This is a similar question to that discussed above relating to unregis- 
 tered voters. The qualifications of an elector in Florida are prescribed 
 by the constitution of that State. It will be remembered that section 
 1, article 4 of the constitution, quoted above, prescribes the general qual- 
 ification of voters. But a citizen of Florida cannot vote simply because 
 he possesses these qualifications. There are other constitutional pro- 
 visions which such citizen must comply with before he can vote. We 
 have just seen that under section 6, article 4, constitution of Florida, 
 "no person not duly registered according to law shall be allowed to 
 vote." This applies to a native-born citizen. There is still another 
 provision of the constitution which foreign- born persons must comply 
 with before they can vote. It is as follows : 
 
 SEC. 3. At any election at which a citizen or subject of any foreign country shall 
 otter to vote under the provisions of this constitution, he shall present to the persons 
 lawfully authorized to conduct and supervise snch election, a duly sealed and certified 
 copy of his declaration of his intention, otherwise he shall not be allowed to vote. 
 Andany naturalized citizen offering to vote, shall produce before said persons lawfully 
 authorized to conduct and supervise the election the certificate of naturalization, or 
 a duly sealed and certified copy thereof, otherwise he shall not be permitted to vote. 
 (Acts of 1868 ; Constitution, section 3, pp. 211, 212.) 
 
 Now, contestant concedes that a vote. cast by a person not registered 
 is illegal. And it is too well .settled to be disputed. Registration is a 
 " necessary prerequisite " to be complied with by the voter before he can 
 legally vote. The constitution of Florida makes another " necessary 
 prerequisite" of a foreign-born person before he shall vote. It tells him 
 he shall present to the officers of the election his duly certified and 
 sealed "naturalization papers" or his "declaration of intention " (where 
 he has not taken out his final papers), " otherwise he shall not be allowed 
 to vote." 
 
 And it seems to us that the same principle must be applied in the 
 case of foreign-born persons who did not present their papers, as the 
 law required, to the officers at the election, that we have applied to un- 
 registered voters. The requirement of the constitution is mandatory. 
 It requires a certain thing to be done by a foreign-born person, " otherwise 
 he shall not vote." 
 
 It is urged by contestant that they were not challenged, and had they 
 been required so to do, that in most cases they could have produced 
 the papers the constitution required. We might say the unregistered 
 voters were not challenged. They, too, could have registered if they 
 knew the law required it, and they desired to do so. Each has failed
 
 FINLEY VS. BISBEE. 121 
 
 to do what the constitution of the State has commanded before they 
 can legally vote. 
 
 This is not something the law requires of the officers of election. It 
 is a requirement of the citizen, to quality him to vote. The constitution 
 of the State challenged his vote unless ho complied with the supreme 
 law of the State. 
 
 The right of suffrage is not a natural right, nor is it an absolute unqualified per- 
 sonal right. It is the right derived in this country from constitutions ami statutes. It 
 is regulated by the States, and their power to fix the qualih'cationsof voters is limited 
 only by the loth amendment to the Constitution, which forbids any distinction on 
 nut of "race, color, or previous condition of servitude." (McCrary, section 3, and 
 : herein cited.) 
 
 But the election francbi>e, like otheE rights, is not that of unrestrained license. 
 In a Government of law, the law must regulate the manner in which itiuustbe exer- 
 cised. The time, and occasion, and uiode of voting are to be prescribed by the legis- 
 lature, except in so far as the constitution has a voice of its own on the subject, and 
 therefore it is that laws have been created for election officers, regulating the hours 
 of the day during which the election shall be held, and the proof necessary to estab- 
 lish the right to vote. * * The electors privilege is not therefore a mere consti- 
 tutional attraction, but it is to be exercised in subordination to law, and on proof of 
 title of the person claiming its exercise. The right, however well founded in fact, 
 may be lost for want of such evidence of titles as the law demands." (Opinion of court 
 in case of Batturs c*. Megary. Brewsier Rep., vol. 1, p. 171; see also 2d Bartlett, 831.) 
 
 In Pennsylvania, persons not assessed for taxes were required by the 
 laws of the State to answer certain questions under oath, concerning 
 tax. age, and residence, and also to prove their residence by the oath 
 of a qualified voter. 
 
 In the following cases it was distinctly held that a vote cast without 
 
 complying with this statute was illegal and could not be counted. 
 
 Mann r.s.' Cassada, 1st Brewster, p. 12: Myers rs.Mofiett, IstBrewster, 
 
 p. 230; Weaver vs. Given, 1st Brewster, p. Ill; Sheppard vs. Gibbons, 
 
 2d Brewster. pp. HT-liMt. 
 
 In Brightly's Leading Cases, p. 492 (note), the author says: 
 
 Votes received from electors whose names do not appear on the assessment list 
 without the pi-( limiiiury proof required by law were formerly held to be prima Jade illegal 
 and to be rejected from the count unless adeiuate proof were made on the trial of the 
 legality of such vote. vManu vs. Cannada and Weaver r. Given.) But the modern 
 and better opinion seems to he that such votes being illegal when received cannot be made 
 legal by the production of evidence of qualification on the trial which ought to have been but 
 was Hot produced to the election officers. 
 
 He cites Sheppard vs. Gibbons and Myers vs. Moft'ett. 
 In the case of Sheppard vs. Gibbous the court says : 
 
 A vote prima facie illegal must be disallowed if the roter did not at the time of offer- 
 ing it produi-e the preliminary proof required b>/ law. (Brightly, p. 55d and 572. Se e 
 Covode vs. Foster, 2d Bartlett, 600 et scq., and' Wright vs. Fuller, ibUL, 159 and 160.) 
 
 Again, the statutes of Wisconsin provide that no person, not regis- 
 tered, should be allowed to vote unless he produced his own affidavit 
 and the affidavit of a householder of the district of his residence in the 
 district. In a case reported in 21st Wis., p. 560, it is held that the affi- 
 davits must be produced, or the vote is illegal and must be thrown out. 
 
 This is an important case, and all the principles arising under section 
 3, article 4, constitution of Florida, concerning foreign-born voters are 
 decided. In that case the officers of the election acted upon their own 
 knowledge of the residence of these unregistered voters. They (the 
 voters) did actually live in the district where they offered to vote, and 
 could and doubtless would have produced the affidavits required by law 
 if the officers of the election had required it. The court says no fraud nor
 
 122 DIGEST OF ELECTION CASES. 
 
 misconduct on the part of the officers of the election or voters was in- 
 tended the voters were not challenged ; but the statute was imperative 
 and the votes illegal. The statute in that case is as follows : " Xo vote 
 shall be received," &c. The constitution of Florida says : u Otherwise 
 he shall not be permitted to vote." If this was a statute and not a con- 
 stitutional provision it is as imperative as the statute of Wisconsin ; 
 both use negative words, and to vote without complying with either is 
 illegal and the vote cannot be counted. 
 
 The court in this case was unanimous. The questions are ably dis- 
 cussed, and decide that the voter is made by law the agent to execute 
 it. An act is required to be done by him, and until he complies with 
 the law, though he may in all other respects have the legal qualifica- 
 tions, he cannot vote. 
 
 The same principle is again confirmed in Bancroft vs. Slumpf. 23d 
 Wis., 630. 
 
 We find no -authorities in conflict with those above cited. Contestee 
 shows by proof that 74 foreign-born persons voted without complying 
 with sec. 3, art. 4, of the Constitution. Fifty three of these testify them- 
 selves that they voted for contestant, four others that they voted the 
 whole Democratic ticket. Seventeen others are called, and testify that 
 they voted without producing the necessary certificates. They were 
 asked by contestee for whom they voted for Congress, and were told by 
 contestant's counsel they were not required by law to disclose that feet, 
 and thereupon they refused to answer for whom they voted. We are 
 of opinion, their votes being illegal, they were bound to answer, and re- 
 fusing to do so at the suggestion of contestant's counsel is very strong 
 presumptive evidence that they voted for contestant. Certainly in a 
 case like this the same strictness in evidence would not be required as 
 in ordinary cases. 
 
 Contestee, however, introduced witnesses (several are Democrats) who 
 are well acquainted with these voters, and have known them for years. 
 Some of the. witnesses lived in the same precinct and had been candi- 
 dates for office where these voters resided ; they testify that each of 
 these 19 voters are Democrats, adhere to the Democratic party, talked 
 Democratic prior to that election, and had, theretofore, voted the Demo- 
 cratic ticket. 
 
 When a voter refuses to testify for whom he voted, it is competent to resort to cir- 
 cumstantial evidence, such as that he was an active member of a particular parry. 
 fee. (McCrary, sec. 293.) 
 
 The committee think they are fully warranted from the evidence to 
 say that these 74 voters illegally cast their ballots for contestant, and 
 they deduct this number from his vote. The record shows the following 
 voters were illegal for the cause stated, and were cast for Mr. Finley : 
 
 J. D. Land, non-resident, voted at Jasper, Hamilton County. Record, 
 pp. 510, 511, 513, and 514. 
 
 Benjamin Bowman, a non-resident, same precinct. Eecord, pp. 510, 
 511. 
 
 Win. Ford, non-resident, voted at Waldo precinct, Alachua County. 
 Kecord, pp. 364-6. 
 
 Jno. F. Semple, ticket fraudulently changed without knowledge of 
 voter; voted at Court-House, Columbia County. Kecord, pp. 460. 470, 
 471,471'. 
 
 Lewis Xiblack, minor, same precinct. Record, pp. 476, 483. 
 
 W. D. Bellany, non-resident, voted at precinct Xo. 4, Columbia County. 
 Racord, p. 4i : .L'.
 
 FINLEY VS. B1SBEE. 123 
 
 H. W. Hee, no a- resident, same precinct. Record, pp. 462, 463. 
 Americas Bivens (convict for felony), same precinct. Record, pp. 463,. 
 478, 479. 
 
 John Stone, non-resident, same precinct. Record, p. 469. 
 Dock Mills, non-resident, same precinct. Record pp. 480, 481. 
 Leon Gwynn, non-resident, same precinct. Record, p. 483. 
 Win. McNish, voted under duress, same precinct; 
 Stephen Thomas, voted under duress, same precinct ; 
 Joseph Simmons, votes under duress, same precinct; 
 Thomas Boyd, voted under duress, same precinct. See Record, from 
 pp. 935 to 943. 
 
 Clay County : 
 
 Henry H. Green, non-resident. Record, pp. 500, 501, 502, 504. 
 Elias Padgett, sr., non-resident. Record, pp. 504, 559, 560. 
 Geo. H. Kersey, non-resident. Record, p. 504. 
 
 Putnam County : 
 
 Henry Wamkee, idiot. Record, p. 431. 
 Win. H. Lauuigan, non-resident. Record, pp. 436, 437, 438, 439, 440. 
 
 Duval County : 
 
 Aaron Isaacs, non-resident. Record, pp. 539, 540, 558. 
 Win. Moore, non-resident. Record, pp. 560, 561, 562, and 595. 
 
 [NOTE. Persons who had not resided 12 mouths in the State, or 6 months in the 
 county where they voted, are included, and termed non-residents.] 
 
 Thus it is seen that 23 illegal votes, not included in the " unregistered " 
 votes or the *' foreign- born " votes, voted for contestant. The proof 
 either shows they voted directly for Mr. Finley, or, as is the case in some 
 of the districts, Mr. Bisbee received no vote, or proved the one or more 
 votes he did receive by the persons who voted for him. Hence these 
 23 votes are to be deducted from Mr. Finley's vote. These, with the 
 illegal foreign-born votes, make 97 more illegal votes to be deducted 
 from Mr. Finley ? s vote, bringing down the result, to wit: 
 
 Bisbee. Finley. 
 
 11,293 11,036 
 
 Deduct . 97 
 
 11,293 10,939 
 Bisbee's majority, 354. 
 
 Contestee assails in his pleadings several precincts in the various 
 counties, and introduces much proof in the record concerning gross care- 
 lessness and violations of the election laws by the officers of election, 
 &c. He raises various other questions, such as compelling voters to 
 vote numbered ballots or be discharged by their employers, duress, re- 
 quiring open ballots to be voted, &c. But without specifying even the 
 precincts attacked or the other questions insisted upon, muchless stating 
 the proof adduced upon each question raised, your committee report 
 that, after a very careful examination of all the testimony relating to 
 these questions not yet discussed in this report, the proof is not, perhaps, 
 sufficient to warrant them in throwing out other precincts or to change 
 the result as above stated. There is no proof of absolute fraud sufficient 
 to justify the rejection of the returns of these precincts. The officers 
 of the election are censurable for their misconduct ; but by the rejection 
 of illegal and unregistered votes, as we have done above, we have con- 
 cluded that the returns have been sufficiently purged, and the vote re- 
 maining is the true vote cast at this election. We find much to con-
 
 124 DIGEST' OF ELECTION CASES. 
 
 demn in the carelessness and want of knowledge on the part of several 
 of the officers who conducted the election, amounting in some instances 
 to violations of the criminal law. But as the constitution of the State 
 and the laws under it relating to elections changed the law at compar- 
 atively a recent date, there is some little palliation for their ignorance 
 of the law of elections. 
 
 Your committee, in their examination of this contest, have attempted 
 to generalize the facts and to classify them, so that they could be treated 
 and discussed under their proper heads. 
 
 They found a mass of evidence, covering about 1,000 printed pages. 
 More than 400 witnesses have been examined and much record and 
 documentary evidence is also included. To have quoted the testimony 
 setting forth the facts in detail would have drawn out this report to 
 great length, and perhaps have involved it in some confusion. 
 
 The committee, satisfied of the correctness of the conclusion above 
 stated, recommend the adoption of the following resolutions : 
 
 Resolved, That Jesse J. Fiuley was not elected and is not entitled to a 
 seat in the Forty-fifth Congress from the second Congressional district 
 of Florida. 
 
 Resolved, That Horatio Bisbee, jr., was elected and is entitled to a seat 
 in the Forty-fifth Congress from the second Congressional district of 
 Florida. 
 
 JAC. TURKEY. 
 
 J. M. THORNBURGH. 
 
 JOSEPH H. ACKLEN VS. CHESTER B. 
 
 THIRD CONGRESSIONAL DISTRICT OF LOUISIANA. 
 
 Contestant charged gross fraud and mismanagement on the part of the election offi- 
 cers and the returning board. 
 
 Held, That where the poll was removed from the place fixed by law to another ami 
 unauthorized place, such poll must be rejectee}. 
 
 Before courts or legislative bodies will give weight to results of recounts of ballots 
 it must be shown absolutely that the ballot-boxes containing such ballots had 
 been safely kept; that the ballots were undoubtedly the identical ballots cast, at 
 the election ; and when these facts are established beyond all reasonable doubt, 
 then full force and effect are given to the developments of the recount. 
 
 The return of the vote made by the Wells-Anderson returning board must be disre- 
 garded because of the most flagrant frauds, and of the exercise of judicial power 
 by said board arbitrarily for no other reason than to achieve a result in accord- 
 ance with their will. The count of the votes as declared by the present legal 
 board of canvassers in all the parishes except Saint Martin's, La Fourche, and 
 Iberville must be adopted. 
 
 The House adopted the majority report February 20, 1878. 
 Joseph H. Acklen sworn in.
 
 ACK! EM VS. DARRALL. 125 
 
 FEBRUARY 8, 1878. Mr. JOHN T. HARRIS, from the Committee on 
 Elections, submitted the following 
 
 REPORT: 
 
 The Committee on Elections, to ichom was referred the contested election 
 case of Joseph H. Acklen vs. Chester B. Darrall, from the third Con- 
 gressional district of Louisiana, submit the following report: 
 
 Contestant bases his claim to the seat in contest upon substantially 
 the following grounds: 
 
 1st. That the action of the returning board of Louisiana (known as 
 the "Wells-Anderson returning board"), in throwing out certain polls 
 in the parishes of La Fayette and Iberia in the interest of coutestee, 
 was illegal, unjust, and fraudulent, and deprived contestant of over 
 one thousand votes. 
 
 I'd. That large and flagrant frauds were committed in the interest of 
 contestee in La Fourche Parish, whereby contestant was deprived of 
 several hundred votes, and that at poll 17 in said parish the fraud was 
 so great as to vitiate and absolutely annul the election held at that poll. 
 
 3d. That the returns from Saint Martin's Parish were forged and false, 
 and render null and void the votes cast in that parish at the election. 
 
 4th. That in the parish of Iberville, at various polls, and notably at 
 polls 1, 2, 4, 5, G. and 7, owing to the fraud, neglect, carelessness, or 
 corruption of the election officers, many hundreds of votes having con- 
 testant's name were counted for contestee, and many hundreds of bal- 
 lots which were blank as to the Congressman were counted for cou- 
 testee. 
 
 To these and other allegations the contestee responded by a general 
 denial, filing as his title and claim to said seat 
 
 First, the certificate of Emile Honore, who claimed to be secretary of 
 state under the Packard government, and which showed the result of 
 the election to be that indicated by the annexed table : 
 
 X;imes of parishes. 
 
 C. B. Darrall. 
 
 1 
 
 3 
 
 e 
 < 
 
 ri 
 
 , 
 1 
 
 
 2,059 
 
 1,215 
 
 
 2,070 
 
 1,078 
 
 
 1,692 
 
 1,677 
 
 
 1,869 
 
 1,687 
 
 Terrebonne 
 
 1,966 
 
 1,393 
 
 Saint Murv's 
 
 2,389 
 
 1,425 
 
 Iberia .' 
 
 1,443 
 
 922 
 
 Tartin's 
 
 1,095 
 
 1, 027 
 
 La Fa vet te 
 
 C 4 
 
 638 
 
 Venuillion 
 
 228 
 
 955 
 
 Cameron 
 
 70 
 
 225 
 
 Oaleasic-u 
 
 91 
 
 1,291 
 
 
 
 
 Total 
 
 15 6^6 
 
 13 533 
 
 
 
 
 And, secondly, the contestee claimed that by the returns of the pres- 
 ent board of canvassers under the present government he was also 
 elected. 
 
 The contestant filed the following certificate issued to him by the 
 present secretary of state. This certificate embraced all the votes as
 
 126 
 
 DIGEST OF ELECTION CASES. 
 
 ast and returned, with no polls thrown out, but with the parishes of 
 Saint Martin's and Iberville excluded for the reasons therein assigned : 
 
 Names of parishea 
 
 C. B. Dan-all. 
 
 H 
 
 a 
 M 
 
 1 
 
 S 
 
 5 
 
 
 2, 059 
 
 1,215 
 
 
 1,692 
 
 1, 079 
 
 
 1,066 
 
 1,393 
 
 
 2, 385 
 
 1,423 
 
 
 1, 455 
 
 1,242 
 
 L.a F&yette - .. - 
 
 661 
 
 1, l.iT 
 
 
 228 
 
 955 
 
 
 91 
 
 1, 291 
 
 
 69 
 
 225 
 
 
 2,915 
 
 2,080 
 
 Saint Martin's *. . -- 
 
 
 
 
 
 
 
 12, 621 
 
 12, 660 
 
 This parish was rejected by the board of canvassers, whose report is hereto attached, the returns of 
 said parish having been tampered with while in Republican hands. The parish gave a Democratic 
 majority in 1874, as by reference to the report of the committee on elections and qualifications of the 
 house of representatives. (Seepage 27 of the journal of the house of 1S75, hereto attached.) 
 
 t The amount. Of votes for member of Congress in this paiish before Hon. James Crowell, parish judge 
 of said parish, as shown by the report of the board of experts, now on file in this office, a certitie-i copy . 
 of which is hereunto annexed, shows the vote for member of Congress to be as follows : For Joseph H.. 
 Ackien, 1,595 votes, and C. B. Darrall 1,253 votes : while the return made by the supervisor of ret:i-tra- 
 tion for said parish gave Joseph H. Acklen 1,078 votes and O. B. Darrall 2!o~0 votes. If the pari>h of 
 Iberville is not included in the addition of votes, there being two different returns of the vote for mem- 
 ber of Congress for the third Congressional district of this State, ou file in this office, then the vote of 
 Joseph H. Acklen is 12,666 and that of C. B. Darrall is 12,621, or a majority of forty-five votes in favor 
 of Joseph H. Acklen. If the vote of Iberville Parish, as shown by the return of the parish judge .-md 
 board of experts, is added to the above, then the vote stands as follows: For Joseph H. Acklen 14.201 
 and C. B. Darrall 13,874. 
 
 I, the undersigned, secretary of the State of Louisiana, do hereby certify that the above and fore- 
 going consolidated statement of the vote is a true extract from the original returns made by th<- super- 
 visors of registration of the election held in the above-named parishes for Congressional, Suite, and 
 parochial officers of this State on the 7th day of November, 1876. 
 
 Witness my hand and the seal of the State of Louisiana, at the citv of New Orleans, this Sth day of 
 October, A. D. 1877. 
 
 [SEAL.] WILL. A. STRONG. 
 
 Secretary of State. 
 
 The results of 15,626 votes for contestee, and 13,533 votes for con- 
 testant, as shown in the certificate filed by contestee, are obtained by 
 the Wells- Anderson returning board having thrown out certain polls in 
 the parishes of Iberia, La Fayette, and La Fourche, which polls showed 
 large Democratic majorities. 
 
 This committee deem it unnecessary to demonstrate the utter un con- 
 stitutionality of the returning board law, and the utter illegality of the 
 action of the members of said board in canvassing the returns of this 
 election. The committee find a full brief on the law on pp. 19 to 22 
 Record, and a decision of the Supreme Court, pp. 3' to 12, discussing 
 questions incident thereto. The contestee produces nosnrricientevnlenre 
 to sustain the action of the board ; the very supervisor of La Fayette, J. 
 A. Veazey, whose testimony is quoted further on, declares he did not 
 make the protest upon which the board pretends to have acted in tin ow- 
 ing out three polls in this parish. Poll 4, Iberia Parish, the only one 
 thrown out here, is conceded to contestant by coutestee (p. 56, contes- 
 tee's brief), so the committee do not deem it necessary to refer to the 
 evidence as to this parish. The polls of La Fonrcheare noticed under the 
 test imony quoted from that parish. But, aside from these tacts, the out- 
 rageous and fraudulent action of that board, as well as the questions of 
 law connected therewith, have been twice made a subject of investiga-
 
 ACKLEN VS. DAREALL. '127 
 
 tioti and examination by two committees of the last House of .Represent- 
 atives, the deliberations and investigations of both of which have made 
 the illegal and fraudulent action of this notorious board a matter of 
 well-authenticated contemporaneous history, and inclines this committee 
 to pay little heed to any result declared by it. The following testimony 
 of J. A. Veazey, supervisor, and Charles Guidry shows the manner in 
 which the secret affidavits upon which the board acted were prepared : 
 
 Testimony of J. A.Yeazey (p. 166 Record). 
 
 J. A. VEAZEY, being duly sworn, deposes and says as follows: 
 
 Question. Please state your residence. Answer. I reside in the parish ot'LaFayette. 
 Q. Were you or were you not supervisor of registration for this parish at the last 
 election? A. I was. 
 
 Q. Did you see or not the protest signed with your name which appeared before the 
 returning board? A. I saw ir. 
 
 Q. Please state whether that protest was made from information received or other- 
 wise. A. It was made from information received. 
 
 Q. Did you know or not the facts contained therein I A. No; because I did not read 
 them. 
 
 Q. As far as you know, what was the character of the election in the parish ? A. 
 Fair, as far as I could fee. 
 
 Q. In making that protest did you intend the facts it contained as being of your 
 own knowledge, or was it simply a report that you made from reports which came to 
 you ? A. It was simply a report which I made from reports which came to me. 
 
 Q. Will you please state where that protest was made? A. In the city of New Or- 
 leans. 
 
 Q. Did you pay any attention or not to it while it was being written ? A. I did not. 
 (}. Did you know or nut that in signing that protest you were swearing tq,the oc- 
 currence of fraud, violence, and intimidation? A. No, I did not. 
 
 (,>. Do yon know who wrote the affidavit which was given? A. I do not remember. 
 Q. Were you told by any one that it was necessary To complete your returns to in- 
 corporate in them a protest based upon the affidavits of parties in the parish ? A. I 
 do not recollect. 
 
 (). Did you or not make out a new consolidated statement of votes excluding the 
 pulls objected to in the affidavit ? A. Yes; I madn another one. 
 
 Q. How many polls were left out in the consolidated statement which you filed be- 
 fore the returning board? A. Two polls. 
 
 Q. Do yon remcmb. r the number of the polls? A. Poll No 1 I know was left out, 
 ami I think the other poll was poll No. 3. 
 
 (>. i'lease state whether or not von think the polls which were excluded should have 
 been counted. A. I think they should havp been counted. 
 
 Q. Did you swear or not to the returns filed before the returning board? A. I do 
 not recollect. 
 
 Q. Will you please state whether or not you returned to the parish toobtain a blank 
 consolidated statement with the seal of court affixed? A. Yes, I did. 
 
 (,i. When you went to New Orleans with your iirst set of returns did you intend or 
 not to tile them before the returning board? A. Yes, I did. 
 
 Q. Did any one tell yon or not, that it was necessary that you should make a new 
 s t of returns? A. I do not remember. 
 
 Q. Were you told or not at the custom-house that it was your duty as supervisor to 
 make a protest and new returns? A. I do not remember who told uae so, but was told 
 -o by s me one. . 
 
 Q. Was the statement made by you on the reportof men who made affidavits before 
 the returning board intended by you as an affidavit or protest against the election or 
 nor f A. No, I did not intend it to be such. 
 
 Q. Please state whether or not you knew that your protest was to be used to throw 
 out the vote of two polls. A. No. 
 
 Q. Do you remember or not who made out your new consolidated returns? A. Ire- 
 member. 
 
 Q. Who was it? A. Delahoussaye. 
 
 Q. Do you remember at what time yon filed your second returns, which were made 
 out by Delahon.ssaye? A. I do not recollect. 
 
 Q. State where the new consolidated statement was made. A. In my room, in the 
 cit\ of New Orleans. 
 
 Q. Were the affidavits made by Diaz, Mart-hand, and others ever read to you or 
 not? A. I do not recollect. 
 
 J A VEAZEY.
 
 128 DIGEST OF ELECTION CASES. 
 
 Testimony of Charles Guidry. colored (p. 169, Record). 
 
 CHARLES GUIDRY, being duly sworn, deposes and says as follows: 
 
 Question. In an affidavit made before one F. A. Woollier, on the 28th of November, 
 1876, in New Orleans, and signed by you, you are made to relate threats on the part 
 of the Democrats toward the Republicans at poll No. 1 in tuis parish. Please state 
 what you know concerning said affidavit. Answer. I only stated to Commissioner 
 Woolfley the following facts: That I was a resident of the parish of La Fayette, ward 
 No. 4; that I had lived in said parish since fifteen years; that I was a voter in said 
 ward; that I was a member of the parish central executive committee in said parish 
 and a leader among the Republicans; that the white and colored people in said ward 
 were on good and friendly terms; that it never had come to my knowledge that there 
 existed any organization of white men gotten up for the purpose of intimidating by 
 night the colored people; that I was on the day of the late election in the town of 
 Vermillionville, ward No. 3; that in said town everything went off peaceably, and 
 the voters of both parties and colors looked like a band of brothers, sitting and eat- 
 ing at the same table; that I was there during the whole day of the election; that I 
 knew not how many colored Democratic votes had been cast at poll No. 1 in Carencro. 
 perhaps 15; that only one colored man told me from Carencro, the Sunday after the 
 election, that his employer had threatened to discharge him because he had voted the 
 Republican ticket; that that colored man did vote a Republican ticket which I gave 
 him myself and saw him vote; that with this exception I knew of no intimidation 
 having been practiced either at the poll in ward No. 2 at C. Trahau's, or at poll No. 
 1 in Carencro; that I knew not the names of either of said commissioners at either of 
 aid polls. I also warned the aforenamed commissioner and his clerks and all those 
 present that I knew nothing more; that I was on amicable and friendly terms with 
 the white Democrats of iny parish, and I wanted to be able to face them when I re- 
 turned there. 
 
 Q. Can you read and write or sign your name? A. No ; I cannot. 
 
 his 
 
 CHARLES + GIJIDRY. 
 mark. 
 
 Further evidence for this parish is found in the testimony of John 
 Clegg (p. 28, Record) and that of fifteen other witnesses (from p. 1G3 to 
 p. 171, Eecord). 
 
 The committee decide this vote should stand as returned, with no 
 polls rejected. 
 
 In La Fourche Parish the evidence goes to show great fraud on the 
 part of the Republican managers of the election. The following testi- 
 mony is from that given by Hon. J. D. Moore, state senator of that dis- 
 trict (p. 79, Record): 
 
 Q. What was the character of the election itself as held in your parish ? AVere all 
 the electors who desired to vote the Democratic ticket permitted to do so? A. The 
 election in La Fourche was eminently a farce. It was conducted solely in the iuteivst 
 of one political party, and no opportunity was given for a fair, free, and full expression 
 of the wishes of the voters. The polls in that parish were located, or rather public 
 notice of their location was given, I think, forty-eight or fifty hours previous to the 
 election. They were, on the next day or the day after it was the day before the elec- 
 tion changed, and therefore it was impossible to communicate the notice of their 
 location to the voters throughout the parish. The parish is about ninety miles long. 
 We are without railroad or telegraphic communications, and it would have been phys- 
 ically impossible to notify all the voters where the polling-places were to be after we 
 received the notice of their location; I mean it was impossible to notify them of the 
 first location, and it W.IH still more impossible after the change was made. They were 
 first located in the negro quarters on the plantations, and they were afterward changed 
 to the public road. These public notices were only given, as far as Iknow,iu the town 
 of Thibod aux. The people in the country knew nothing at all about them. They had 
 to wait until the day of the election and run generally hither and thither to ascertain 
 where the polls were to be. In the selection of the commissioners, the supervisor, M. 
 A. Ledet, made it a point to select Democratic commissioners, living at a great distance 
 from the polls to which they were appointed. For instance, Mr. Allen, living imme- 
 diately opposite the town of Thibodeaux, was appointed commissioner at a poll some, 
 thirty or forty miles below, I believe. No official notice was sent to him at all, nor, I 
 believe, to any of the commissioners, and it would have been physically impossible tor 
 them to have reached the polls to which they had been appointed, even had they been 
 notified and their commissions given to them at the. time they were handed to the
 
 ACKLEN VS. DARRALL. 129 
 
 chairman of the Democratic committee. I would like to state that it was to the chair- 
 man of the Democratic committee that these commissions were given, and never to the 
 commissioners themselves. They were never at anytime notified by Ledet in person, 
 that I know of. 
 
 Q. From yonr knowledge derived from your residence in your parish and from your 
 political position there at the time of the election, what is your opinion and belief as 
 to the number of votes lost to J. H. Ackleu in the parish of La Fourche by the action 
 of the supervisor of registration in the matter of registration, in the appointment of 
 commissioners, and in the general management of the election of La Fourche? A. 
 Those facts, coupled with the conduct of colored Republicans with or toward colored 
 Democrats, lost to the Democratic ticket, including J. H. Ackleu, I am certain not 
 less than 150 votes, because I do believe that if the colored voter had been permitted 
 to vote as he was disposed a large number of them would have voted for the Demo- 
 cratic party or abstained from voting. 
 
 This is fully corroborated by the testimony of the supervisor of regis- 
 tration himself, M. A. Ledet, who confesses the part he took in the 
 fraudulent registration and election, and afterward in the alteration or 
 " doctoring- "of the returns in the committee-room, whereby, as he states, 
 J. H. Ackleu was deprived of some two hundred votes. 
 
 The following- is part of the testimony of said M. A. Ledet (pp. 73 
 and 83, Record) : 
 
 <!>. IIo\v was the registration conducted in that parish under your administration? 
 Give a full and detailed account of it. A. Well, I conducted the registration as fair 
 as I could. Had I been left alone I could have done it fairly, but on account of the 
 pressure that was brought to bear upon me by the Republican campaign committee, I 
 was compelled to go according to their dictation. In the registration I took all the 
 advantage I could. I suppose that I neglected the registration of the white voters of 
 that parish to the extent of about 25 or 30, probably. I mean white Democratic 
 voters. There were about that number that were prevented from registering. This 
 was done by my being advised, of course, by the campaign committee to not remain 
 long at one place, and to dodge about. I rejected, as far as I can remember, some 6 
 or 8 that I thought were not of age. That is about all about the registration. 
 
 Q. Were you not appointed supervisor with the distinct understanding that you 
 were to carry the parish for the Republicans at all hazards? That was the under- 
 standing, sir. Those were the questions put to me by the campaign committee when 
 I received the appointment. 
 
 Q. How many votes do you think were lost J. H. Acklen by this peculiar mode of 
 registration alone ? A. Well, I suppose about 25 or 30. 
 
 Q. That is, by the registration ? A. Yes, sir. 
 
 Q. Now, Mr. Ledet, how about the election ? How, in reference to the placing of 
 the polls, was the election conducted ? A. Well, in fixing the polls, I did it together 
 with the campaign committee, and they insisted upon my locating the polls in the 
 manner in which I did. 
 
 Q. Were those polls not so placed as to prevent many Democrats from voting by a 
 neglect of a proper time of notification? A. Well, yes, sir; and it being in the quar- 
 ters. 
 
 Q. Were not colored Democrats prevented from voting the Democratic ticket by the 
 situation of the polls in the quarters, where they were surrounded entirely by their 
 own color, who were strongly Republican ? A. Well, to my knowledge there must be 
 in La Fourche eighteen or tweuty Democratic negroes, and they were rather afraid. 
 In fact, they did not vote. They belonged to the Democratic-Conservative club in 
 Thibodeanx, and they were really prevented from voting by their own race, because 
 I have myself heard colored speakers in the parish say on the stand that any nigger 
 that would vote the Democratic ticket, they ought to get together and not only kill 
 him, not only that he deserved to be killed, but massacred and burnt up. I remember 
 a man by the name of Cook making that speech at Stoddard school-house a couple of 
 weeks previous to the election. 
 
 Q. Mr. Ledet, is it not a fact that at all the polls in the parish the Republicans had 
 men stationed whose special business it was to examine the tickets of the colored 
 voters as they came up, to see that they had a straight Republican ticket and prevent 
 them from having any other ? A. Yes, sir; there were at each poll some four or five 
 constables who were appointed for that purpose by me as supervisor. 
 
 Q. What number of votes were lost to J. H. Acklen by the failure to place poll No. 
 1? where it was ordered to be held, at the Allen warehouse, and which was really 
 held back in some negro quarters about three miles from the road? A. Well, the 
 commissioner at that poll bad instructions to hold the election on the road-side at the 
 warehouse, and he disobeyed orders and went back there. He told me himself after- 
 
 B. Mis. 58 9
 
 130 DIGEST OF ELECTION CASES. 
 
 ward that there were about fifteen or eighteen Democrats that would not vote on ac- 
 count of the poll being there, because Mr. E. H. Allen, who was the owner of the 
 place, protested against holding the election there and disgusted those men i'roin vot- 
 ing there. That information I had from the commissioner himself. I know myself 
 that on that place there were at least fifteen or eighteen white men working there 
 nearly all the year round. 
 
 Q. Had there been under the law a fair registration and a fair election held in the 
 parish of La Fourche, giving neither party an advantage, and permitting the negroes 
 to vote as they chose, and giving the facilities for voting which should have been 
 given to the white Democrats, what is your opinion that the majority would have 
 been for J. H. Acklen in the parish? A. Well, in my opinion, I concede La Fourche 
 to be from one hundred and fifty to two hundred Democratic majority if the polls 
 were located properly and the voters were permitted to vote as they wanted to ; that 
 is, by placing polls convenient for them to get at them and the commissioners being 
 at each poll. 
 
 Q. Then I understand that by this unlawful registration and election J. H. Acklen 
 has lost about two hundred votes in the parish of La Fourche? A. Yes, sir. 
 
 Q. Mr. Ledet, were you at any time previous to the election presented with a certain 
 list of men deceased, and minors, and convicts, and felons, aud absentees, &c., by one 
 L. O. Moreau, Democratic United States supervisor, to have the names of those parties 
 stricken from the rolls of the registration books? A. Yes, sir. 
 
 Q. Did you act upon this list to the full extent of the names presented to you? A. 
 I erased a few of them, not all. 
 
 Q. Do you not know that many names thereon that should have been erased you 
 failed to erase? A. Well, I suppose there were some. 
 
 Q. In the consolidated return made out and filed in the secretary of state's office, 
 was any notice taken of that fact that you have just stated ? A. No, sir; not that I 
 know of. 
 
 Q. Who made out this return? Did you make it out in person? A. Jules Sevignes 
 made it out. He was a candidate for the house of representatives, and he made out 
 the return in the committee-room. 
 
 Q. Is this the original which was made out by him? (Shown original consolidated 
 return on file in the office of the secretary of state.) A. This original consolidated 
 return was made out in the committee-room in La Fourche. This other one (refer- 
 ring to certified copy of the said original) was made in New Orleans. 
 
 Q. Who made out the second one? A. Sevignes copied it. 
 
 Q. Is all the document in Sevignee's handwriting except your signature there? A. 
 Yes, sir ; the whole of it is in his handwriting, with the exception of my signature. 
 
 Q. Did Sevignes return himself elected on this consolidated return ? A. Yes, sir. 
 
 (Mr. Merchant objected.) 
 
 Q. When you signed this return as made out by said Sevignes, had you carefully 
 examined it to see whether it was correct? 
 
 (Mr. Merchant objected.) 
 
 A. No. sir. 
 
 Q. Did you find out afterward that the aforesaid returns, as signed by you, were 
 incorrect ? * 
 
 (Mr. Merchant objected.) 
 
 A. Well, yes, sir. I will tell you how these returns were made out : In the first 
 place, every statement of votes and tally-sheet that were sent out to the different 
 polls was made out in .pencil ; and when they were brought to me the return was 
 made and the tally-sheets were copied over in ink. That is how the first copy was 
 made. The tally-sheets were doctored in the committee-room. 
 
 Q. Then, in reality, you did not yourself make out the return that came from the 
 parish of La Fourche and that was submitted to the returning board ? 
 
 (Mr. Merchant objected.) 
 
 A. No, sir. 
 
 Q. The entire returns as made and filed with the board were made out by the afore- 
 said Sevignes? 
 
 (Mr. Merchant objected.) 
 
 A. The statement of votes, or rather the consolidated statement, was. Now, there 
 were two or three others that helped me to copy the tally-lists. There were some fiv 
 or six of them. 
 
 Q. To what extent now have you ascertained that the return from your parish, as 
 made out by the aforesaid Sevignes, is incorrect ? In other words, how many votes 
 were lost to J. H. Acklen by this return which should have been credited to him ? 
 (Mr. Merchant objected.) 
 
 A. According to the statement that I have already made, I think you lost some two 
 hundred votes.
 
 ACKLEN VS. DARRALL. 131 
 
 Cross-examination by Mr. MKKCHAXT: 
 
 (Mr. Merchant said he cross-examined this witness with reservation of all legal 
 objections to his testimony.) 
 
 Q. Mr. Ledet, you signed this return mentioned by you ? A. Yes, sir. 
 
 Q. Did you compare those returns with the commissioner returns to see that they 
 were correct In-t'orr signing them .' A. Well, no, sir : they were not compared, because 
 the commissioners' TV r urns were doctored or changed in the committee-room, as I have 
 already stated. All the statements of votes and all the commissioners' returns were 
 made pretty much in pencil. 
 
 Q. How do you know that fact ? A. Because I was there and saw it. 
 
 Further evidence sustaining the foregoing is found in the testimony 
 of M. W. Billier, p. 132, Record; A. Rovira, pp. 132, 137, Record; H. H. 
 Michelet. p. 39, Record; Albert Brooks, p. 134, Record; E. A. O'Sulli- 
 van, p. 137, Record; O. B. Morgan, p. 40, Record; T. Chatton Davis, p. 
 31, Record; I. O. Landry, p. 128, Record; Robert Poindexter, p. 30, 
 Record. 
 
 In the evidence offered by the contestee m the testimony of Tayler 
 Beattie, p. 242, Record, Charles Gaude", p. 181, Record, and Jules 
 Sevigues, p.184, Record, many of the statements of the witnesses on behalf 
 of the contestant are qualified ; but it is the opinion of tlie committee 
 that the facts educed in this parish show that contestant was deprived of 
 a large number of votes, and that the returns as rendered, viz, J. H. 
 Acklen 2,086, C. B. Darrall 2,015, do not show all the votes which the 
 contestant would have received had the election and registration been 
 fairly conducted. But this committee are without any exact figures 
 upon which to base any change of the vote for the contestant, although 
 this Republican witness declares that Acklen was defrauded of over 200 
 votes, and so let that vote remain as returned. 
 
 The evidence, however, goes to show that the vote of poll 17, where 
 86 Republican votes were cast and not one Democratic vote, which was 
 held at a place unauthorized by law, and about one mile from the place 
 legally appointed, with no Democratic commissioner present, and appears 
 to have been so held for the express purpose of preventing any Demo 
 crats from voting there, should be rejected and not counted. Without 
 quoting the testimony, this committee, after a careful examination, feel 
 they are correct in adopting the language of the supreme court of 
 Louisiana, which in rendering a decision on this poll said (p. 9, Record) : 
 
 Tl - e ivason of the rule invoked is, however, very manifest, and the circumstances at- 
 tending the removal of poll 17 from the place fixed by law to another and unauthor- 
 ized place make it more the manifest. The object of the change is proved to have been 
 to take unlawful advantage of political adversaries ; in other words, to defraud the law 
 and prevent a fair, full, and independent expression of the popular will. Courts can- 
 not lend their aid to such a purpose. It was no more legal to hold an election where 
 it was held and returned, as that from poll 17, than it was to hold it at any other time 
 than that fixed by law. It is well settled that cannot be done. There was no election 
 held at poll 17 in the parish of La Fourche on the 7th of November last. We have, 
 been unable to find and have been referred to no case where votes cast under similar cir- 
 cumstances have been counted to determine an election. Our conclusion, therefore, is 
 that what purports to be the return of this poll should not be counted or considered in 
 determining the result of the election. 
 
 Thus the vote for this parish of La Fourche is determined by this 
 committee to properly be, exclusive of the vote of poll 17, rejected : 
 
 J. H. Acklen .. 2,086 
 
 C. B. Darrall 1,929 
 
 SAINT MARTIN'S. 
 
 Pending the priutingof the Record in this case, the contestee appeared 
 before the committee and claimed that some of his testimony taken in
 
 132 DIGEST OF ELECTION CASES. 
 
 this parish was mislaid, and requested twenty days to retake same. To 
 avoid delay an agreement then was entered into between the contestant 
 and contestee (p. 283, Record) predicated upon the supposed loss of said 
 testimony. The next day the testimony was found in the hands of the 
 Public Printer, where, by accident, it had gone with contestant's papers, 
 and had been printed ; it is found on pp. 153, 154, 155, and 156, Eecord. 
 By this agreement the vote of this parish is declared to be : 
 
 J. H. Ackleu 1,027 
 
 . B. Darrall 1,095 
 
 These returns the present board of canvassers refused to canvass, 
 alleging (p. 13, Eecord) that the same had been tampered with or 
 forged. The evidence of coutestee, pp. 153, 154, 155, and 156, Eecord, 
 does not touch on this point at all, but inasmuch as the general result 
 is not affected by the above vote as agreed upon, and inasmuch as con- 
 testee strenuously insists upon the agreement, the committee, though of 
 opinion that said agreement was superseded by the subsequent dis- 
 covery of the evidence, are inclined not to disturb it. 
 
 IBERVILLE. 
 
 In the parish of Iberville contestant relies upon a recount of the bal- 
 lots had under an order of court on March 6, 1877. This was four mouths 
 after the date of the election. 
 
 Before entering upon an examination in detail of the features and cir- 
 cumstances of this recount, your committee would remark that they 
 were impressed with the fact that the law regards with jealousy and 
 suspicion recounts of ballots, and is slow to sanction any change from 
 results originally declared to results effected by such recounts. 
 
 The rules of law governing recounts of ballots are plain and positive. 
 Before courts or legislative bodies will give weight to results of recounts 
 of ballots, it must be shown absolutely that the ballot-boxes containing 
 such ballots had been safely kept ; that the ballots were undoubtedly 
 the identical ballots cast at the election; and when these facts are estab- 
 lished beyond all reasonable doubt, then full force and effect are given 
 to the developments of the recount. After full examination of the evi- 
 dence your committee found no difficulty whatever in arriving at the 
 conclusion that in this case the ballot-boxes had been preserved ; that 
 they had never been tampered with, and that the ballots found in them 
 were the identical ballots cast at the November election. 
 
 Another objection to the consideration of the recount urged by con- 
 testee is that the time between the election and the recount was some 
 four months, and that the time for the preservation of the boxes by the 
 clerk, under the laws of Louisiana, had expired. Section 13 provided 
 in substance that the clerk of the court should safely keep the ballot- 
 boxes, after delivery to him by the officers of election, until after the 
 next regular term of the district or criminal court for said parish. Con- 
 testee urges that the next regular term of the district or criminal court 
 for the parish of Iberville was in January, 1877, two months after the 
 election, and that after the lapse of said term, the law no longer obligat- 
 ing the clerk to safely keep the ballot-boxes, a recount of such boxes or 
 their contents was illegal. The facts are that the time for holding the 
 term of the regular district court was in January, but no court was held. 
 There were two claimants to the office of district judge. One of these 
 claimants (and the one, too, who was afterward declared not to be the 
 judge) went through the form of holding court; but no business what- 
 ever was transacted, and no regular term of court was held until the
 
 ACKLEN VS. DAKRALL. 133 
 
 month of April. But granting the fact that the term of court had elapsed 
 between the time of the election and the recount, would that fact abridge 
 the power of Congress in determining the rights of claimants to seats in 
 its body to take the ballot-boxes, no matter what might be the lapse of 
 time; and if satisfied that the boxes had not been tampered with, and 
 that the ballots contained in them were the identical ballots cast at the 
 election, to open the boxes, count the ballots, and decide in accordance 
 with the result of said recount? But the committee find, after thorough 
 examination, that contestant could not have obtained the recount at a date 
 earlier than it was effected. The election took place November 7, but 
 the Wells-Anderson returning board did not declare any result until 
 nearly two mouths afterward. After that declaration the contestant 
 gave notice of contest, which was given within the time required by law. 
 During this time, and until the Nicholls government was established in 
 Louisiana, the state of affairs was such that few or no courts transacted 
 business, and it was not until the month of February that the board of 
 canvassers under the Nicholls government declared any results. And 
 thus awaiting final action of these two boards of canvassers were any 
 proceedings by contestant delayed; and, further, the answer of the con- 
 testee to notice of contest bears date "Washington, D. C., January 20, 
 1877," and appears to have been served some time thereafter. Thus the 
 recount? which took place early within the first forty days, granted the 
 contestant by law, was effected at as early a date as the case permitted. 
 
 The proceedings of this recount (on pp. 03, 64, and 65, Record) appear 
 to this committee to have been even unusually formal, and perfectly 
 just to both parties, who were present; the one in person, the other by 
 attorney. Xor is any evidence offered or claim made by contestee that 
 this recount was not fairly conducted as between the parties in contest; 
 that the judge, a Republican, presiding, did not act in a fair and impar- 
 tial manner, and that the recount was not duly attested and authenti- 
 cated ; all of which facts appear affirmatively in the evidence offered by 
 contestant. The law directing the preservation of the ballot-boxes and 
 ballots for such recounts is found in section 13, act 1872, election law of 
 Louisiana; and that this law had been complied with is shown in the 
 testimony. 
 
 Authoritj* for recounts in such cases is found in McCrary, section 280; 
 2 Parsons, 599; Thompson vs. Ewing, 1 Brewst., 192; 2 Brewst., 2; 1 
 Brewst., 67 and 69; 2 Parsons, 537, 548, and 553; 65 Perm. St. R., 36; 
 1 Brewst., 162; Cooley's Const. Lirn., p. 625. 
 
 That the contestant specified particularly the grounds upon which he 
 relied is apparent from the pleadings. That the proof as to an incor- 
 rect original count, and the failure to count votes which witnesses swore 
 to having voted, was fully established before the boxes were ordered to 
 be opened by the court, is likewise shown. 
 
 .Many of the commissioners of election were called in previous to the 
 opening of the boxes at said recount, to identify the seals and their 
 signatures as being intact, and except at poll 7, where the box had 
 been sealed but not signed, they did so identify them; that the former 
 and present clerk of court, in whose possession the law placed these 
 boxes for safe-keeping, were also sworn, and testified that they had 
 been safely preserved, is also shown. James Crowell, parish judge, 
 former clerk, pp. 59 and 115 Record, says : 
 
 Q. Were those !>ox"s safely iu your possession, Judge Crowell, until you delivered 
 them to your successor? A. Yes,* sir. 
 
 Q. Would it have been possible for any one to have tampered with those boxes 
 without your knowing it* A. I think it would have been impossible.
 
 134 DIGEST OF ELECTION CASES. 
 
 Q. Were not those boxes in your office with their faces or fronts turned out, expos- 
 ing the seals in such a way that had they been interfered with at any time the fact 
 would have been noticeable ? A. Well, as they came in I placed them with the seals 
 out, in the main office, where I sat myself, and I took the seals and faced them outside 
 between the end and the records of the parish court there. 
 
 Q. Are the fastenings of this court-house secure ? A. Yes, sir. 
 
 Q. Would it be possible for any one to come in here at night or at any other time 
 without your being aware of it? A. Not without breaking the windows. 
 
 Q. You were present at the time the commissioners examined their boxes and iden- 
 tified them as being in the same condition as when delivered to you? A. Yes, sir. 
 
 Q. You were also present at the recount of these votes? A. Yes, sir. 
 
 Q. Were those boxes at the recount in-the same condition as when they were deliv- 
 ered to you ? A. Yes, sir ; the same as when I got them. 
 
 J. A. Landry, deputy clerk of court, p. 62 Eecord, says : 
 
 Q. Mr. Landry, you have access to the court-house at all hours? A. Yes, sir: I 
 have a key to the clerk's office, and previously I had a key to the sheriff's office. I 
 have access to the sheriff's office, I believe, since the 9th of January last. 
 
 Q. Have you ever at any time left the court-house or the clerk's office open, or in 
 such a way that any one could come in here and tamper with these ballot-boxes since 
 they have been in the clerk's office ? A. Well, no, sir ; I never have. Whenever I was 
 absent or went away, the clerk himself was here. I have never left it long enough to 
 know that any one could tamper with them unless I should have caught them at it. 
 
 Q. Then can you testify that to the best of your knowledge and belief while you 
 have been here these boxes have been safe? A. Yes, sir; I have always seen them 
 there, and to my knowledge they have not been tampered with. 
 
 Q. You see the boxes every day or two ? A. Yes, sir. 
 
 Q. If they had been tampered with over night or at any time, would that fact have 
 been noticed by you, do you think? A. Yes, sir; so far as I know the boxes have 
 never been tampered with so far as taking any papers out or adding any papers to 
 them, or anything of that kind. 
 
 C. H. Gordon, clerk of court, pp. 66 to 110 Eecord, says : 
 
 Q. You are, at present, clerk of the parish court ? A. Yes, sir. 
 
 Q. You are, at present, in custody of the ballot-boxes in this court? A. Yes, sir. 
 
 Q. Who delivered them to youf A. My predecessor, Judge Crowell. 
 
 Q. Have those boxes been in your possession ever since they were delivered to you 
 up to the present time ? A. Yes, sir. 
 
 Q. Can you swear positively, beyond all question, that, to the best of your knowledge, 
 these boxes have been safely in your keeping up to the present time ? A. Yes, sir. 
 
 Q. Are the fastenings of the clerk's office here secure T A. Yes, sir. Always, when 
 we go away from here at night, we fasten these windows on the outside, and when 
 they slam they cannot be opened from the outside at all. 
 
 Q. If there had been any entrance made into the building during your absence from 
 it, could you have detected it? A. Yes, sir. They would have had to break the lock 
 or pulled the wedge from the fastenings of the windows. I am here during the day 
 all the time. 
 
 Q. From whom did you receive the ballot-boxes? A. From Judge Crowell, my 
 predecessor. 
 
 Q. Can you swear positively, to the best of your knowledge, that while those boxes 
 have been in your possession they have not been tampered with ? A. Yes, sir ; I can 
 swear positively that while those boxes have been in my possession they have never 
 been touched at all. They were handed over to me when the judge vacated the office, 
 and they were in that other room piled up from the floor, one on top of the other; and 
 I moved them from there and put them under this table, which then stood by that 
 window, and after that I cleaned up here a little bit, and I moved this table over here 
 and put the boxes where you find them now, on top of the table I handled them 
 around, and I might have handled them carefully if I had thought there was going to 
 be a contested election case; but, not knowing anything about it, Idid not pay much 
 attention. I might have left them where they were. 
 
 Q. Were not those boxes piled up in the room with their seals faciug outward, so 
 that they could be seen every day as you came in ? A. Yes, sir ; they were turned 
 ri^ht around the reverse of the way they are now in that room on that other side. 
 
 Q. If those boxes had at any time been tampered with over night, could you, on the 
 next day when you came iu, have noticed that fact from the difference in the papers 
 and in the seals .' A. Kasily, sir. 1 would not only notice the fact of the boxes hav- 
 ing liccii tampered with, but I would notice the fact that some of these windows and 
 doors had been tampi-ivd with in order to get in here. 
 
 Q. Would it be possible for any one to enter this office where these boxes were kept 
 without leaving some traces ? A. No, sir.
 
 ACKLEN VS. DARRALL. 135 
 
 Q. Are the fastenings of the windows and the doors secure? A. Yes, sir. 
 
 Q. Are you or some of your deputies here always during the day? A. Yes, sir ; I 
 am here nearly all day from the time I come here in the morning. I get here about 7 
 o'clock, and go to dinner, and I am back here about 1 o'clock, and I stay until I lock 
 it up myself at night. 
 
 Additional testimony of the commissioners themselves, showing con- 
 clusively that the ballot-boxes, when brought forward for the purpose 
 of the recount, had not been tampered with, will be noticed further 
 when each poll is taken up separately. Suffice it to say that the evi- 
 dence is conclusive that the ballot-boxes had been safely kept, and had 
 not been tampered with between the time of the election and that of the 
 iccount. 
 
 Such being the case, the presumption follows that the ballots found 
 in the boxes when the recount was made were the identical ballots cast 
 at the election. The peculiar character of the case, and the fact that in 
 the parish of Iberville the party of which contestee was the nominee 
 was largely in excess of the other party, render it necessary for the 
 committee to notice at some length the history of the election in that 
 parish, and to set forth the causes which operated to deprive contestee 
 of his party strength. It is true that Iberville is largely Eepublican, 
 but the evidence is couslusive that the leaders of the Eepublican party 
 in Iberville, as well as some of the most prominent Eepublicans in the 
 State, were opposed to the election of contestee, and combined to defeat 
 him. The testimony of W. W. Wharton, pp. 33, 121, Eecord ; Wailes, 
 E., p. 116 ; Gordon, E., p. 108; Eobertson, E., p. 103; Holmes, E., p. 
 113; Ennis, E., p. 90; A. J. Gordon, E., p. 96; Loud, E., p. 67; Bess, 
 E., p. 97 ; Commager, E., p. 99 ; Hunter, E., p. 90 ; Barnes, E., p. 93 ; 
 Deslonde, E., p. 43 ; Eoberts, E., p. 84 ; Weightman, E., p. 85, as well 
 as that of others, shows very strong opposition to the election of the 
 contestee in Iberville Parish on the part of the Eepublicans themselves. 
 
 The following, from the testimony of Hon. W. W. Wharton, pp. 33, 121, 
 Eecord, sheds much light upon the manner in which this fight within 
 the Eepublicau ranks against the contestee was conducted : 
 
 Q. Then, what was the decision and determination among your friends and yourself 
 in reference to Dr. Darrall's defeat ? A. The determination was come too early in the 
 year that if I would take hold of the canvass here and organize the party thoroughly, 
 I should be supported for the senate throughout. When it was ascertained that Wake- 
 field was a candidate, and information was given that Dr. Darrall was supporting Mr. 
 Wakefield, and the conduct of Dr. Darrall appeared to me conclusive that he was sup- 
 porting Wakefield and giving me merely a negative assistance in this parish, whilst 
 opposing me elsewhere, I called my friends together to discuss the matter. We dis- 
 cussed it many times, and we came to the conclusion that we would hold the matter 
 over the doctor's head ; that we would not indorse him in the proceedings of our con- 
 vention ; that we would hold it over, him and that I would talk to him and notify him, 
 and that some of my friends would talk to him, and sound him, and ascertain his views 
 in reference to the matter ; and that in case it was necessary to proceed to extreme 
 measures to force him to support me, the regular nominee, we should do so. Most of 
 my personal friends were very active in the matter. Others of my political friends 
 were negatively acquiescent about it ; but the entire direction of the matter in this 
 parish was in my hands, as far as the canvass was concerned. 
 
 <J. Was not the electtion also in your hands, in so far as regards the printing of the 
 tickets. The general management of affairs, the distribution of the tickets, &c. ? 
 A. After the preliminary organization of the parish, and after we had secured the 
 parish committee and the parish convention, I was appointed by the committee as 
 chairman of the campaign committee of the parish, with power to conduct the cau- 
 vass, arrange meetings, disburse funds, print tickets, and do everything else in refer- 
 ence to the matter. I was appointed at a meeting of the committee. I believe the 
 vice-president, Judge Crowell, was in the chair at the time. 
 
 Q. What were your reasons for keeping the matter a secret in the parish of Iber- 
 ville to a certain extent except as among your particular and personal friends? A. 
 For this reason, that I wanted to do two things, to be elected myself and to beat Dr. 
 Darrall. To do this it was necessary to avoid any handle that the opposition to myself
 
 136 DIGEST OF ELECTION CASES. 
 
 might take np. I was opposed very bitterly here by Senator Allain and his friends 
 who would have seized upon anything of the kind as a weapon to fight me with. Dur- 
 ing the day of an election it is very easy to get up quite a disturbance by anything 
 of that kind. On consulting with my friends, we agreed that the leaders should be 
 thoroughly conversant with the matter themselves, sound their own leading men, 
 have it understood, and carry it out that way. In certain localities of the parish 
 where the opposition to me was strongest, we would proceed quietly and do but little. 
 
 Q. Did you yourself bring up from New Orleans those tickets that were printed 
 with Darrall's name on them, others that had the name of J. H. Acklen on them, 
 and others with the name of the Congressman left in blank f A . Yes, sir; I had them 
 printed myself and brought them here. 
 
 Q. Where did you have them printed ? A. In New Orleans, by a man by the name 
 of Hopkins, on the corner of Camp and Common streets, in the Storey Building. 
 
 Q. Did you distribute all those tickets yourself? A. All that I brought up, or 
 nearly all ; there were a couple of hundred, perhaps, that I did not distribute. I 
 gave out every ticket myself. 
 
 Q. Give the names of some of those men that you distributed tickets to. A. I will 
 give the names of all of them. I will state, in the first place, that I gave to no one 
 only one kind of ticket ; that is, I gave to no one a ticket that did not have Dr. Dar- 
 rall's name on it without at the same time giving him a ticket with his name on it. 
 I gave Mr. Deslonde tickets with Dr. Darrall's name on, tickets Avith Mr. Ackleu's 
 name on, and tickets without either name en; I gave the same to Mr. Davidson, to 
 Mr. Barnes, to Mr. Ennis, and to Mr. Harris, who were both together; to Preston 
 and to Robertson, from the third ward, who were both together, and to Mr. Gordon, 
 in town here, who came to the house for them. I sent some by Mr. Tate and by some 
 one else that Davidson sent here from Bayou Goula to get some tickets. 
 
 Q. Were you not surprised on the next day after the election at the returns as 
 made by the commissioners in regard to the Congressional vote f A. I was not sur- 
 prised at all when I found out how the votes had been counted. I was at half a dozen 
 different polls during the day, and I was here at this poll when they counted the 
 votes. Isaw them commence to read off the tickets and thought it was all right, 
 and went off to get my supper or a drink or something, and when I came back I found 
 tliat they had counted only half a dozen tickets in that way, aud had then com- 
 menced to count them all in bulk. That was, may be, an hour or three-quarters of 
 an hour after the counting commenced. Just about that time the box from the third 
 ward came in, sealed and delivered, and I asked Mr. Talbot, "How did von get 
 through so quick as this?" He said, "We counted the votes straight in bulk." Theu 
 I knew that the votes in that box had been counted straight. I said, "You counted 
 all the black tickets straight Republican?" He said, "Yes. aud all the others the 
 same way." Then I knew that all the Republican tickets that had your name on 
 them and all the blanks had been credited to Darrall. Whilst I was considering in 
 my mind whether I should insist upon a recount, the box from the Wharton school- 
 house came in, and I asked Mr. Bruce, "How did you count the votes there?" He 
 said, "We took all the black tickets and tallied them straight, and then read the 
 scratched tickets." He said, "Why?" "Why," I said, "I thought you would read 
 them ont one by one." A little while afterwards he came back to me and said, 
 "Noland tells me that you had some tickets printed with Acklen's name on them." 
 I said, "Yes." Said he, "Do you thiukthere was any in our box ?" I said, " I know 
 there was one in there, for I voted one myself." He said, "We counted it for the 
 doctor, then." He said, "What are we going to do about it now?" I said, "I do 
 not know ; you had better let it alone." I had come to the conclusion that it was 
 better to let it alone until I saw what was the next best thing to do. 
 
 It is not gainsaid that the regular Republican tickets for this parish 
 were all in the hands of Wharton for distribution, nor that these 
 straight Republican black-back tickets on which contestant's name 
 appears were printed and distributed before the election. Out of the 
 12,000 printed for this parish 6,000 bore the name of contestant, 4,000 
 were blank as to member of Congress, and 2,000 had the name of con- 
 testee. That they were quietly distributed throughout the parish the 
 night previous and the day of the election is shown in the testimony of 
 W. W, Wharton (Record, pp. 33, 121), C. H. Gordon (p. 108), James H. 
 Tates (p. 57), E. A. Verretr (p. 270), 1"'. G. Deslonde (pp. 42, 202), Fred. 
 Robertson (p. 103), A. J. Barnes (p. 93), Lycurgus Ik-ss (p 97), Charles 
 A. Brusl6 (p. 51), Charles Commuter (pp. 99, 100), Giles Hunter (p. 
 100), A. J. Ennis (p. 90). 
 
 The contestee aud aces the testimony of Craig (Recor.l, p. 272),Carrielle
 
 ACKLEN VS. DARRALL. 137 
 
 (p. 196), Wilson (p. 26G), Coleman (p. 255), Frank Deslonde, (p. 205), 
 Davidson (p. 250), Pieruas (p. 261), and Verrett (p. 209), to show that, 
 though given out, these tickets were not voted, simply because these 
 witnesses allege they did not discover them in the boxes during the 
 original count of the votes on the day of the election. The witness 
 Davidson alleges he destroyed 1,000 bearing Acklen's name, which were 
 given to him for distribution. The manner of the count at the different 
 polls, however, in the opinion of this committee, entirely precludes any 
 definite testimony as to examinations of tickets bearing contestant's 
 name; and the weight of the testimony conclusively shows that these 
 tickets were not only distributed to the voters, but voted, and that the 
 commissioners of election, either unaware of the fact that such tickets 
 were in the boxes, as they generally so testify, or willfully, by counting 
 them in bulk and simply from the headings, credited the coutestee with 
 a large number of these votes that bore the name of the contestant. 
 
 As the change in this parish by a recount was a large one, this com- 
 mittee, in a careful and thorough investigation of all the facts con- 
 nected therewith, have deemed it best to take up and treat each poll 
 and all the evidence on both sides connected therewith separately, not 
 only as to the distribution of these Ackleu and blank tickets, the manner 
 of the count of the votes, but also as to the identification of the box by 
 one or more of the commissioners who signed and delivered it to the 
 clerk. An examination of the recount, as compared with that made 
 by the commissioners of election, shows the changes at polls 1, 2, 3, 4, 
 5, 6, and 7 to be material, and all in favor of contestant, with the ex- 
 ception of poll 3, where there is a gain of 17 votes for contestee. 
 The other polls show but slight changes, there being at poll 9, however, 
 where the contestant was originally credited by the commissioners of 
 election with 121 Republican votes, by reason of the Democratic com- 
 missioner having been secretly apprised of the fact that Acklen's name 
 would appear upon the Republican ticket, one vote is found among 
 these for contestee. At no other poll does it appear that the Demo- 
 cratic commissioner was aware of such a fact ; on the contrary, each and 
 all testify that they were unaware of the existence of these tickets 
 bearing Acklen's name until after the election, and failed to examine 
 any of them, with that name in view, during the count. 
 
 At poll 1, it appears from the testimony of contestee's witness, J. S. 
 Davidson (Record, p. 250), that he gave to Verrett, an officer at this poll, 
 two packages, of 500 tickets each, one containing solely the tickets blank 
 as to memberof Congress, and the other, AcklenandDarrall tickets mixed 
 together. It further appears that this officer, Verrett (Record, p. 260), who 
 is also contestee's witness, testifies that he " gave them to several gentle- 
 men around there, and they distributed them, and I distributed some of 
 them myself, inside of the room where the poll was." Rev. James H. 
 Tate. Republican (Record, p. 57), likewise testifies that he saw them 
 circulating around, and that they were being given out to the voters, 
 and also that he himself voted one. 
 
 It further appears from the testimony of Arnade'e Roth, commissioner 
 (Record, p. 56), that the tickets were not scrutinized, but counted as 
 straight Republican or straight Democratic. He says: 
 
 I just headed the tickets, and when I saw it was a straight Republican ticket I put 
 it down, and when it was a straight Democratic ticket I put it down. 
 
 This is corroborated by other testimony at that poll. 
 
 But the contestee claims that at the recount the paper covering the 
 box appeared fractured or torn, and although the clerk alleged that this 
 had occurred through his carelessness in moving the boxes from one
 
 138 DIGEST OF ELECTION CASES. 
 
 part of the room to another, yet this committee, with a strict regard to 
 the interests of both parties, and particularly those of contestee, on a 
 recount, refuse to accept this box as recounted, but let it stand as orig- 
 inally returned in favor of contestee. 
 
 ROLL, 2 BAYOU GOULA. 
 SUPERVISOR'S RETURN. RECOUNT. 
 
 Dem. Rep. Total. Blauka. 
 ckle il JJJ Acklen 114 226 340 90 
 
 g ai ? a11 - 5 Darrell - 86 86 
 
 Packard 394 
 
 Nicholls 115 
 
 J. L. Davidson, colored Eepublican, and witness for coutestee, alleges 
 (Eecord, p. 248) that he received from Wharton 2,500 tickets the night 
 before the election, and that 1,000 bore the name of Acklen. He alleges 
 that he and Whittecoe examined and separated the Acklen tickets that 
 night at his room ; that he retained these Acklen tickets at his own 
 room, while Whittecoe took the box and all the other tickets to his own 
 room, some distance away. This latter fact is corroborated by Whit- 
 tecoe, another of coutestee's witnesses, who says (Record, p. 275) that 
 they "selected them (the Acklen tickets) all out and left them at Da- 
 vidson's house." He also says that he was at the poll at half past five 
 o'clock next morning, with these tickets for distribution. But David- 
 son alleges that he distributed the tickets. Unless Davidson did, as 
 this committee are led to believe, distribute these Acklen tickets, then 
 here is a conflict of testimony on this point; but he admits (same page), 
 on being asked as to their being at his poll : 
 
 I seen just an hour by sun, or perhaps later I seen some of them, but not more than 
 five; I think it was about two, lying inside of the room inside, back of the poll; 
 how they came there, I don't know. 
 
 This clearly indicates their presence at the poll; but he further says, 
 p. 250, that he sent to Wharton for 500 more by a man named Joe Har- 
 die, and he received from him the 500 sent for, all of which were blank 
 as to member of Congress. From the testimony of W. W. Wharton, 
 Davidson was in the movement to distribute these Acklen and blank 
 tickets, and from his own admissions he played a double part : either 
 he deceived Wharton or Whittecoe, and as Whittecoe is a very ignorant 
 negro and testifies he can barely read and cannot write, it most probably 
 was this latter. 
 
 But the distribution of these tickets at this poll is proved beyond 
 question by the testimonvof P.G. Deslonde, contestee's witness (Record, 
 pp. 42 and 43) : 
 
 Q. Did you receive any tickets from Mr. Wharton yourself! A. I did. 
 
 Q. Were those tickets-yon distributed the black-back tickets ? A. Yes, sir. 
 
 Q. All of them? A. Yes, sir. I gave a bunch of them each to some of my friends. 
 I took them to be Republican tickets, because they were headed Republican tickets. 
 
 Q. Were they alike in every respect, with the exception of the names you have 
 mentioned ? A. Yes, sir. In the morning I took all these tickets to be Republican 
 tickets. During the day I discovered the name of Mr. Acklen npon the tickets and 
 that some were blank. Therefore I discovered that there were three tickets. 
 
 This is corroborated by Wharton, who says he gave these tickets to 
 Deslonde; and, further, this same witness again establishes their circu- 
 lation at this poll by saying, in answer to the question (Record, p. 43) : 
 
 Q. In visiting the various polls of the parish on the day of the election, did you see 
 the Republican ticket with Mr. Acklen's name ou it at more than one poll ? A. No, 
 sir: I saw them when I came back about three o'clock at Bayou Goulapoll.
 
 ACKLEN VS. DARE ALL. * 139 
 
 Thus, the question as to their circulation here is deemed by this com- 
 mittee to be conclusively settled. 
 
 The only parties testifying to having been present or possessing any 
 knowledge of the manner of the count of the votes at this poll, are 
 
 "William A. Smith (Eecord, page 54) ; J. S. Davidson (Eecord, pages 39 
 and 23) ; Bazile Craig (Eecord, page 274) ; and William Whittecoe (Eec- 
 ord, page 275). This latter testifies that he was only present part of the 
 time, and as he knows very little of the count, his testimony will not be 
 considered. 
 
 William A. Smith, Democratic commissioner, poll 2 (p. 54, Eecord), 
 says : 
 
 Q. Describe the manner in which the votes were counted. A. The box was 
 opened and the tickets were taken out, and the Democratic tickets were strung on a 
 string, and the Republican tickets were strung on a string, and the scratched tickets 
 also, and then they were taken and called off of each string. 
 
 Q. In the way in which you counted the tickets at that poll could J. H. Acklen's 
 name have been on any ot them without your seeing it f A. Yes, sir. 
 
 Q. You say you did not scrutinize the votes? A. No, sir; I never looked at them. 
 
 J. S. Davidson, Eepublican commissioner, poll 2 (pp. 39 and 23, 
 Eecord), says: 
 
 Q. How were the tickets at that poll counted after the election ? Were they counted 
 as straight Republican tickets, and so on ? Were they sorted off and counted in that 
 way, or were they read by name through each ticket ? A. They were not read name 
 by name. They were taken out by one commissioner and counted as a straight Re- 
 publican ticket, or straight Democratic ticket, or scratched tickets. They were put 
 off in three different piles. 
 
 Q. How many tickets were put on the string before the counting began? A. They 
 strung them all and they counted them afterward. 
 
 Bazill Craig, Eepublican commissioner, poll 2 (p. 274, Eecord), says 
 (DarralFs witness) : 
 
 Q. After you put them on the string, who counted them? A. Robert Hebert kept 
 one tally-sheet, and Mr. William Smith kept the other; and I took the tickets out of 
 the box, and so did he. and we strung the tickets. All the straight Republican tickets 
 went on a string, and all the straight Democratic tickets was put on a string, and all 
 those that was scratched was put to themselves; and in taking out the tickets we 
 examined to see which was the straight Republican; and we read them and found 
 that all those were Republican, and they were put down in that way, and the straight 
 Democratic tickets all put down the same way ; and, after putting them on a string, we 
 then counted them. 
 
 Q. Now, Mr. Craig, how did you string these tickets? Did you use a needle and a 
 string' A. Yes, sir. 
 
 Q. Where did you pass the needle; through the center? A. It was done in such a 
 manner that I cannot say whether they were all through the center or not. We 
 picked them up, and put them sufficiently, some half-way, some perhaps not exactly ; 
 but we put them as near the center as we could, to my recollection. 
 
 Q. Then, in stringing the tickets, you strung them all on a string by passing the 
 needle as near the center as yon could ? A. Yes, sir. 
 
 Q. Now. Mr. Craig, if you were to string several hundred of these tickets through 
 the center, in the manner you have described, on a string, do you think you could 
 easily see the center of the ticket without a great deal of trouble in examining it ? 
 A. No. sir : we could not. 
 
 Q. Ami they were counted on the string? A. Counted on the string, sir. 
 
 The committee have observed that the Congressman's name appears 
 just about the center of this black-back ticket, and as there were 375 of 
 them strung on a string by the needle used being passed through the 
 center of the ticket before they were counted at this poll and all the 
 testimony goes to show that they were counted after they were strung 
 it is easily understood how such a mistake as shown by the recount 
 could have occurred, for it would be impossible for any commissioner to 
 see where the Congressman's name appeared after the tickets were on 
 the string.
 
 140 DIGEST OF ELECTION CASES. 
 
 And again, among those present at the count and testifying, David- 
 son (Whittecoe, who was not present but a short time, excepted) is the 
 only commissioner or person aware of these tickets being there. He 
 seems to have suggested the stringing, and therefore if his testimony 
 about the 1,000 Ackleu tickets be true, the question is, was this stringing 
 of tickets not effected by him for some ulterior purpose ! 
 
 P. G. Deslonde, who was not present at the count, but who con- 
 versed with Eobert Hebert, who also counted the tickets at that poll r 
 but whose testimouv is not to be found in the record, says (Eecord. p. 
 43): 
 
 Q. Did you not ascertain that those tickets were generally counted in bulk ? A. 
 Yes, sir ; that was the remark in the parish ; that they were counted as straight 
 tickets. 
 
 Q. After the election, was it found that they had been voted at any poll iu the 
 parish? A. Yes, sir; only in the ward in Grosue Tete. 
 
 Q. Had they been voted at any other poll in the parish, so far as you heard .' A. 
 No, sir; by hearsay. Mr. Hebert told me that there might be about five tickets was 
 voted there. 
 
 Q. Where ? A. Bayou Goula, poll No. 2. 
 
 Q. Was it not a matter of public notoriety in the parish after the election that many 
 of those tickets bearing the name of J. H. Acklen on them and many of the blank 
 tickets were voted ? A. Yes, sir ; I heard some of the commissioners of election men- 
 tion that ; among them Mr. Robert Hebert. I asked him how the poll was down at 
 Bayou Gonla, and he stated to me that he thought there was some considerable scratch- 
 ing done there. 
 
 Q. Do you mean by scratching the voting of those tickets with my name on them ? 
 A. He alluded to the Congressman at that time. I asked him if Darrall had received 
 a solid vote down there. He stated to me that there was some scratching done. 
 
 Q. Do you mean the voting of the blank tickets ? A. I think that was the under- 
 standing of Mr. Hebert. 
 
 Q. That was your understanding of it f A. Yes, sir; that was my construction of it. 
 
 Q. Not that the Republican tickets had the name of Dr. Darrairscratched off in ink 
 or pencil f A. No, sir. 
 
 Xow, if this witness is to be credited, here was one of the commission- 
 ers who knew that such tickets for Acklen or blanks for Darrall were in 
 the box, but who fails to count them for Acklen or deduct them from 
 the vote for Darrall ; for this committee find that Ackleu and Darrall 
 are credited with their full party vote by these commissioners' returns. 
 (See returns.) Thus, if this witness Desioude, who is contestee's witness 
 (Eecord, p. 201), tells the truth, there was collusion between Hebert and 
 Davidson not to count for contestant those votes cast for him in Eepub- 
 licau tickets. Thus the entire evidence leads this committee to the con- 
 clusion that either through accident or design the tickets bearing con- 
 testant's name in the box of this poll were not counted for him. 
 
 These tickets were found on the recount in apparently the same con- 
 dition in which they had been put in the box after the count of the votes 
 by the commissioners, viz, strung together and tied up. 
 
 C. H. Gordon (Eecord, p. Ill) says: 
 
 Q. Do you remember one box iu which all the tickets were all strung on a strii: _ 
 A. Yes, -sir; that was the box from the first ward, and the tickets were all strung 
 through the middle. 
 
 Q. That was the box from poll number 2 at Bayou Gonla ? A. Yes, sir. 
 
 Q. Did uot that string of tickets have the appearance of being in the box. jn<r as 
 they had been placed there by the commissioners.' A. Yes, sir; the same natural ap- 
 pearance. In fact, I met Mr. Davidson down in th<- city, and 1 asked him about it, 
 and I told him the impression that had b.-e.a brought to* bear that those tickets had 
 been tampered with, and I asked him, " How did you count your tickets in your 
 boxes T" He said, " We just strung them together o'u a strinu and count* d them one 
 by one, just as you would count money." 
 
 This is corroborated by C. W. Colton (Eecord, p. 115) and G. H. Har- 
 rison (Eecord, p. 119). The box at this poll was sealed with a band of
 
 ACKLEN VS. DARRALL. 141 
 
 paper that was first put on with mucilage and then sealed with wax. 
 Bazile Craig, coutestee's witness, says (Record, p. 274) : 
 
 Q. Did you assist iu sealing the box at that poll, Mr. Craig? A. Yes, sir. 
 
 Q. Over the key-hole? A. Yes, sir; and then we took the candle, with some red 
 sealing-wax, and melted it sufficiently and covered the paper around the edges with 
 the wax entirely. 
 
 Q. Did Mr. Smith have anything to do with sealing the box, as you recollect ? A. 
 Mr. Smith was right there and helped to do, for one had the candle and the other had 
 the wax. 
 
 Q. In the way that box was sealed up, could it have been opened without the seals 
 that you put on or the paper that you put over have been broken? A. No, sir. 
 
 W. A. Smith, commissioner at poll 2 (Record, p. 54), says : 
 
 Q. Was the box sealed? A. Yes, sir. 
 
 Q. What did you do with the box? A. Brought it here and delivered it. 
 
 Q. Was the box safely in your possession and sight until you delivered it to the 
 clerk ? A. Yes, sir. 
 
 (The box referred to by the witness was here produced by the clerk of the court 
 for identification.) 
 
 Q. Is that the box as you delivered it to the clerk? A. I think that is the bos 
 yes, sir. 
 
 The fact that the box was intact at the time of being reopened for 
 the recount is further shown in the testimony of G. H. Harrison, G. W. 
 Colton, and J. H. Shanks, aside from the testimony of James Crowel . 
 and C. H. Gordon, is corroborative of the fact. The committee unhesi- 
 tatingly decide that the vote of this poll should stand as recounted. 
 
 POLL 4 WHARTON UNION SCHOOL. 
 
 SUPERVISOR'S RETURN. 
 
 Ackleu 33 
 
 Darrall 12S 
 
 RECOUNT. 
 
 Dem. Rep. Total. Blanks. 
 
 Ackleu 32 2 34 
 
 Darrall 105 105 
 
 Packard 128 
 
 Nicholls 33 
 
 These Acklen and blank tickets were distributed here by C. H. Gor- 
 don (p. 108), and also by Senator Wharton. 
 
 The count of the votes was made in bulk, as appears from the testi- 
 mony of N. L. Bruce, Democratic commissioner for poll 4 (Record, p. 47), 
 who says : 
 
 Q. Describe the manner in which the votes at that poll were counted. A. We first 
 selected out the straight tickets, both Democratic and Republican, and would glance 
 at them or glance through them, and then take them down as so many straight tickets. 
 I would take down, for instance, and mark the tallies to a certain number of the Re- 
 publican tickets all through, and then I would take the other ticket and mark that 
 dowu in the like manner. As for scratched tickets, we generally read them through. 
 
 Q. In the way you counted those votes could the name of J. H. Acklen have been 
 on some of them without you seeing it ? A. Well, yes, sir; on account of the tickets 
 looking so much alike. I noticed that gentleman up therej( referring to Mr. Gordon, 
 the clerk of the court) laughing when we were reading some of them over as straight 
 tickets. 
 
 J. H. Shanks, United States supervisor at poll 4 (Record, p. 49), says : 
 
 Q. Did you see the votes counted ? A. I did. 
 
 Q. How were they counted? A. By separating the Democratic and Republican 
 ami scratched tickets. Mr. Verbois took them out of the box and Mr. Holmes over- 
 looked them, and they were separated and counted that way. While they were be-
 
 142 DIGEST OF ELECTION CASES. 
 
 ing counted my friend Mr. Gordon was there, and I saw him laughing and smiling 
 and I could not tell what he was laughing at, but I found out afterwards. 
 
 L. M. Verbois, commissioner at poll 4 (Record, p. 102), says: 
 
 Question. Were you present at the count ? Answer. I counted them myself, sir. 
 
 Q. Please describe the way in which the tickets were counted at that poll. A. We 
 first commenced calling the names, and we counted a few votes that way, calling all 
 the names off. Then we divided them, and put all the Democratic tickets that had 
 no scratch on them in one pile and the Republican tickets on one pile, after examin- 
 ing them to see if there was any scratching on them. Mr. Saudidge and I examined 
 them. I believe he stood over my shoulder. Then I took up the piles and counted 
 them, one, two, three, and so on, until the quantity in the pile was counted : and I 
 would say to those who were marking to mark so many Republican tickets or so many 
 Democratic tickets, and then I would fold them np and put them in the box. 
 
 <J. In the way in which those tickets were counted, could the name of J. H. Acklen 
 have been on some of them without your seeing it? A. Yes, sir; because I held them 
 in my fingers and counted them as you would generally count bank-notes, one over 
 the other. 
 
 C. H. Gordon, United States marshal at poll 4 (Kecord, p. 108), says: 
 
 Q. Will you describe the way in which those voteswere counted? A. Well, precisely 
 at 6 o'clock the ballot-boxes were opened and the commissioners made arrangements 
 to commence to count and tally. The tickets were laid out separately. The regular 
 Republican tickets, or the Wharton tickets, that were not scratched, were laid off in 
 piles of thirties,, and the Wakefield tickets that were not scratched were laid off to 
 themselves. They were all counted by thirties. 
 
 Q. In the way in which those tickets were counted was it an easy matter for the 
 name f J. H. Acklen to have been on many of them without the commissioners being 
 aware of that fact ? A. Yes, sir ; it was a very easy matter. I could not help from 
 laughing at the time at the way they were counting them. The two Democratic com- 
 missioners appeared to be very close, and there was one Republican commissioner, 
 and they scrutinized the tickets pretty closely and were counting them as straight ; 
 and I was laughing at them counting them as straight tickets when some of them 
 were blank and some of them had Mr. Acklen's name on them. They were counting 
 them as straight for Mr. Darrall. 
 
 On page 60 he says: 
 
 Q. One of the witnesses testified to your laughing at the time of counting of the 
 votes; what was the reason of that? A. I was laughing at this: Mr. Bruce was put 
 on as one of the Democratic commissioners and Mr. Verbois, with the understanding 
 that they were to watch the votes very closely and see that the Democratic party got 
 every vote, and when I saw them counting them at night, the way they counted them 
 was that they laid the Republican tickets in a bunch together and just looked at 
 the heads of them to see that they were Republican and Avere not scratched, and they 
 would lay them aside, and the Democratic tickets in the same way, and then they 
 counted them off by thirties ; and what made me laugh was that they counted 
 them all straight for Darrall when some of them had Acklen's name on them and some 
 did not have any one's name on them. 
 
 Geo. Holmes, Republican commissioner at poll 4 (Record, p. 46), says: 
 
 Q. After yon finished the connt, what did you do with the tickets? A. They were 
 pnt in the box, and the box was sealed up. 
 
 Q. What did you do with the box ? A. Brought it to the clerk. 
 
 Q. Was the box in your possession until you delivered it to the clerk? A. Yes. sir . 
 
 (The box referred to by the witness was here brought in by the clerk of the court 
 for identification.) 
 
 Q. Is that the box? A. Yes, sir, that is the box? 
 
 Q. Is that the way you delivered it to the clerk? A. Yes, sir. 
 
 ET. L. Bruce, commissioner at poll 4 (Record, p. 48), says : 
 
 Q. Was the box safely in your possession until you delivered it to the clerk of the 
 court according to law ? A. Well, we put it in the ante-room there, and had keepers 
 watching it. 
 
 (The box referred to by the witness "was here brought in by the clerk for identifi- 
 cation. ) 
 
 Q. Is that the box, and is it sealed up as you delivered it? A. It looks to me like 
 it, and there is rny writing on it.
 
 ACKLEN VS. DARRALL. 
 
 L. M. Verbois, commissioner at poll 4 (Record, pp. 52 and 102), says: 
 
 Q. After you finished the count, what did you do with the tickets t A. We put them 
 back in the' box. 
 
 Q. What did you do with the box ? A. We brought the box and delivered it to Des- 
 londe, the registrar. 
 
 Q. Was the box in your possession until it \vas delivered? A. Yes, sir; we sealed 
 the box. 
 
 (The box referred to was here produced by the clerk for identification.) 
 
 Q. Is that the box? A. Yes, sir; that is the one. 
 
 Q. Is it as you delivered it i A. Yes, sir. 
 
 Q. Were you present when the box was sealed, Mr. Verbois? A. I sealed it myself, 
 sir. 
 
 Again (p. 102): 
 
 Q. You were present and examined the box previous to the recount, and testified 
 that it had not been opened or tampered with ? A. Yes, sir. 
 
 Q. Are you willing to swear to that fact, beyond all question ? A. Yes, sir ; I exam- 
 ined it closely in the presence of the gentlemen that were there, and I could not see 
 anything that was out of the way. I had a particular key in my pocket that day, 
 and In putting tho seal upon it I put the key on the sealing-wax, and when the box 
 was brought to me some few days ago, or about a month ago, I examined to see whether 
 I could not see that print, and I saw it the same as it was before. 
 
 Q. Then was it possible for any one to have opened or to have tampered with that 
 box without your knowing that fact ? A. No, sir. I will give my reason for it. I 
 was very careful in sealing the box to put three seals on top and to put four on the 
 side. That was right under the hole, so that if they wanted to put anything in the hole 
 they would have to break the seal. The paper was very wide. At the lock of it there 
 was also five seals, two on top and three at the bottom. The two on top were above 
 the lock and the three at the bottom were below, and they could notget the lock open 
 without tearing the paper. The paper was fully six inches wide. What made me par- 
 ticular was, that I had heard so much talk about stuffing ballot-boxes, and I thought 
 I would give them some trouble to stuff that box, if they did do it. That was my view 
 in doing it. 
 
 The contestee introduces but one witness at this poll, viz, F. V. Des- 
 londe (Record, p. 204) : 
 
 Q. You state further that you did not know that Mr. Wharton was opposed to Mr. 
 Darrall, either before or since the election? A. No, sir; neither before nor since. 
 
 Q. Would Mr. Wharton have been likely to have informed you of any opposition to 
 Dr. Darrall, knowing you to be a friend of Dr. Darrall's ? A. That I don't know. He 
 never said nothing to me. I know that on the day of election he was at Grosse Tete. 
 
 The very limited knowledge possessed by this witness, who is a col- 
 ored man, is shown in the testimony just quoted. Wharton, it appears 
 from the testimony of others, was in Plaquemine. 
 
 The fact of the count of the votes in bulk, when there were evidently 
 Acklen and blank tickets among the others, is clearly shown by the 
 testimony cited ; and the identification of the box by the commissioners 
 is complete and perfect. The committee decide that this poll shall stand 
 as recounted. 
 
 POLL 5 DEBLEEUX PLANTATION. 
 
 SUPERVISOR'S RETURNS. 
 
 Acklen 63 
 
 Darrall 207 
 
 RECOUNT. 
 
 Dem. Rep. Total Blanks. 
 
 Acklen 63 95 158 32 
 
 Darrall 79 79 
 
 Packard 207 
 
 Nicholls 63 
 
 Antoine 207 
 
 Wiltz.. . 63
 
 144 DIGEST OF ELECTION CASES. 
 
 The distribution of tickets. 
 Fred. Eobertsou, Eepublican, at poll 5 (p. 103, Kecord), says: 
 
 Q. Mr. Robertson, did you, previous to or on the day of the election, see any Whar- 
 ton black-back Republican tickets with the name of J. H. Acklen on them for Con- 
 gressman or with the Congressman's name left off ? A. Yes, sir; I distributed some 
 of those tickets. 
 
 Cross-examination : 
 
 Q. Do you know of your own personal knowledge whether or not any of the Repub- 
 lican tickets, having the name of Mr. Acklen on them for Congress, were voted at that 
 poll? I do not speak of what yon have heard. A. Yes, sir; I have that impression. 
 
 Q. I do not want your impression, but what you know of your own personal knowl- 
 edge. A. I know that some of them were voted; those that I gave out were voted. 
 
 James Preston also distributed tickets for this place. See testimony 
 of Wharton. 
 
 The count of the votes. 
 
 E. B. Talbot, attorney at law, Democratic commissioner at poll 5 (p. 
 46, Eecord), says : 
 
 Q. Did you count or assist in counting the votes at that poll? A. Yes, sir; I did; 
 I counted them. 
 
 Q. Describe the manner in which the votes at that poll were counted. A. Well, 
 the straight Republican tickets and the straight Democratic tickets and the scratched 
 tickets were each placed separately in piles, and the aggregate number of each was 
 put down on the tally-sheet. 
 
 Cross-examination : 
 
 Q. When you counted the tickets did you pass them to anybody else? A. In count- 
 ing the tickets I was assisted in taking them out of the box and separating them by 
 Colemau, a commissioner and a Republican. 
 
 Q. When you called out the votes the talliesmen, as you called them, marked them 
 down ? A. Yes, sir. 
 
 Q. You did the calling? A. Yes, sir; and the separating, assisted by this man 
 Coleman. One of the United States commissioners made out one of the tally-sheets, 
 and one of the cominissioneri made out the other. This man Coleman could not write. 
 
 Ernest Gourrier, at poll 5, (p 87, Eecord), says : 
 
 Q. Will you describe the manner and way in which the votes at that poll were 
 counted? A. The commissioners assorted them out by general appearance, and took 
 a cursory glance at them, and if there was no scratching on them they were all piled 
 up as straight tickets, and the tickets that were scratched were put aside and were 
 then counted over. The scratched names were noticed, and the balance of the ticket 
 was counted just as it was supposed to be; that is, a straight ticket. Well, I did not 
 think thatthe voting amounted to anything; that it was all with the re turning-board, 
 and we did not care what became of it. Then, afterward, somebody remarked that 
 the tally-sheets did not amount to anything, and we threw them aside, and one of the 
 commissioners just made out a statement or the return from memory as to how the 
 vote had been counted out. 
 
 Q. State the name of that commissioner. A. Mr. Talbot. 
 
 Q. Mr. Gourrier, is it not a fact that Mr. Talbot took the tickets out of the box and 
 glanced at them to see whether they were scratched or not, and then placed them in 
 piles; and that Jacob Coleman, another commissioner, had nothing to do with the 
 votes, unless it was toward the last, when he assorted a few of them? A. I believe 
 he helped to spread them around or assort them out. I do not know that he did much. 
 
 Q. Did Jacob Coleman examine the tickets and read the names on them ? A. No, 
 sir. I am free to say that he did not read a ticket through. He just assorted them 
 out. He could barely read, anyhow, as it was. 
 
 Q. Is Jacob Coleman not an ordinary plantation field-hand ? A. He is an ordinary 
 field-hand. I never saw him anywhere else. I never saw him anywhere scarcely be- 
 fore that day. 
 
 Q. In the way in which those tickets were counted, Mr. Gourrier, was it not very 
 easy for the name of J. H. Ackl>n to have been on a number of them without any of 
 the commissioners seeing it? A. Yes, sir; easy enough. They only took a cursory
 
 ACKLEX VS. PARRALL. 145 
 
 glance at the tickets to see if there were any erasures, and where there was an erasure 
 that ticket was scrutinized as to the erasure. 
 
 Cross-exam i nation : 
 
 Q. Then, if I understand you. Mr. Gourrier. the returns were made up -without us- 
 ing any tally-sheets? A. Yes, sir. 
 
 Q. From the vote as actually cast? A. From the vote as counted and remembered 
 by Mr. Talbot. 
 
 Q. All of the commissioners, including yourself, were satisfied -with the return f A. 
 Yes, sir. For my part I know that it fid not amount to anything ; that the return- 
 ing-board would fix it up to suit themselves, and that it was no use to vote at all. 
 
 Jacob Coleman, Republican, at poll 5 (p. 257, Record), says (Darrall's 
 witness) : 
 
 Q. Xow, Mr. Coleman, will you please describe exactly how this count was made, 
 as you did not previously describ'e it cart-fully the count of the tickets ? A. The way 
 them tickets was counted, I unlocked the box; then I taken myself and Parker 
 taken the tickets out. and laying them all out straight on the barrel, the straight 
 Republican tickets all to themselves, and the straight Democratic tickets all to them- 
 selves, in separate piles; then we taken the straight Republican tickets, wrote each 
 name down on the ticket carefully as we could, and each name was given his com- 
 plement of votes, his number of votes; the names was taken down as they were on 
 the ticket, and were written down : and the Democratic tickets the same way; and 
 the scratched tickets was counted, and those that were not scratched; the name was 
 taken down straight on the ticket, the names written, and the complement of votes 
 written down. 
 
 James H. Parker, Republican, poll 5 (p. 260, Record), says (Darrall's 
 
 witness) : 
 
 Q. Did Mr. Talbert arrange the tickets in piles on the barrel? A. Mr. Talbert ar- 
 ranged them. 
 
 Q. How many piles ? A. In three piles. 
 
 Q. Were the straight Republican tickets placed in one pile, and the straight Demo- 
 cratic tickets in another, and the scratched tickets in another? A. Yes, sir. 
 
 Q. Did Mr. Talbert then call off so many straight Republican tickets? A. Yes, sir. 
 
 Q. Did he then call off so many straight Democratic tickets? A. Yes, sir. 
 
 Q. Did Mr. Talbert make out the statement himself of all the votes of the poll ? A. 
 Vi-. sir. 
 
 Let it be remembered that the box of this poll was sent to the clerk's 
 office about one and a half or two hours after the poll closed. There 
 were over 300 ballots, 49 names on each, to be counted in this time ; this 
 fully proves the count in bulk. 
 
 The identification of the box. 
 E. B. Talbert, commissioner at poll 5 (p. 47, Record), says : 
 
 Q. What did you do with the box? A. We gave it in charge of one of the commis- 
 sioners, who brought it to the court-house. I subsequently examined the box and 
 found it in the condition that I had sent it over in. 
 
 (The box was here produced by the clerk of the court for identification.) 
 Q. Please examine that box and see if it is in the same condition in which you de- 
 livered it to the clerk. A. Yes, sir; I believe it is. 
 
 Jacob Coleman, poll 5 (p. 47, Record), says (Darrall's witness) : 
 
 Q. After you had finished the count what did you do with the tickets ? A. We put 
 them in the box and sealed it. 
 
 Q. What did you do with the box ? A. Brought it here and delivered it to the clerk 
 of the court. 
 
 Q. You had it until you delivered it to the clerk ? A. Yes, sir ; I did. 
 
 (The clerk produced the box referred to for identification.) 
 
 Q. Is that the box ? A. Yes, sir; I put that wax on it myself. 
 
 Q. It is aa you delivered it ? A. Yes, sir. 
 
 George Butterick, poll 5 (p. 239, Record), says (Darrall's witness) : 
 
 Q. In what manner did yon seal the box, or did yon seal it at all after the ticket* 
 H Mis. 58 10
 
 146 DIGEST OF ELECTION CASES. 
 
 were returned to the box ? A. I saw that the box was sealed ; it was sealed by Mr, 
 Gourrier, the democrat ; it was certainly done in the ordinary way, or I should have 
 noticed it. 
 
 Q. Was it sealed with sealing-wax or with mucilage ? A. With sealiug-wax. 
 
 Q. Was the key-hole sealed up ; or have you any recollection of that fact ? A. I 
 have no recollection of it; but had it not been sealed I should have been apt to re- 
 member it. I should not probably have allowed it to go to the court-house unless I 
 seen it was properly sealed. 
 
 Mr. Darrall introduces the following witnesses at poll 5, in rebuttal : 
 Geo. Buttrick states there were no Acklen or blank tickets either 
 
 voted or distributed at that poll ; but on cross-examination (page 239, 
 
 Kecord) says: 
 
 Q. You testified that there were no tickets distributed at that poll ? A. I testified 
 to the best of my knowledge. 
 
 Q. What is your knowledge on that subject, when you were in the house all day 
 with the exception of once ? A. Hot very good. 
 
 Q. I understand you to have stated that these tickets were taken out of the box by 
 Coleman ; and they were handed to Talbert and scrutinized by him, and that you and 
 Mr. Guerriere laid off and made up the tally-sheets ? A. Yes, sir. 
 
 Q. Under the circumstances could you have seen every name on every ticket that 
 was scrutinized by Mr. Talbert? A. Certainly I did not see any of them. 
 
 Jacob Coleman states there were no blanks or Acklen tickets dis- 
 tributed at that poll, as he was about the poll all day ; but on cross-ex- 
 amination (Eecord, p. 256) says : 
 
 Q. Mr. Coleman, how many polls were you at on the day of election? A. Onlyone r 
 sir. 
 
 Q. Were you in the room all day as commissioner? A. I was in the room all day r 
 as near as I can come at it, except about fifteen minutes. I asked for leave to get 
 permission to go and get dinner. 
 
 Q. Did you get out at any other time except to get your dinner? A. No, sir. 
 
 Q. Where did you get your dinner ? A. At Mr. Talbert's house, about two acres- 
 from the poll. 
 
 Q. You were gone, then, about fifteen minutes from the poll ? A. As near as I re- 
 collect. It might have been a little longer. 
 
 Q. As you were in the room all day, except fifteen minutes, which time you took to 
 go a distance of a hundred and forty yards and to get your dinner and return, how i 
 it that you know there were no Republican tickets distributed among the voters at 
 the poll ? A. My reason is this : because I had a good many of the tickets in there, 
 and whenever there was a different ticket came in I knew it. I had a good many in 
 there in the room, up behind the box. When some one came up who didn't have a 
 ticket, I gave them one. We closely examined them, and whensomever there was a 
 ticket, except it was a straight Eepublican ticket, we knew it. I knew it anyhow. 
 
 Q. Do you mean to say that you knew the difference between the Republican tick- 
 ets with Mr. Acklen's name on them and with Dr. Darrall's name on them as they 
 were being voted in the box ? A. No, sir ; I did not exactly mean that. It is just the 
 same as I taken up this piece of paper and that piece of paper, and I see the difference 
 in this piece of paper and this one. When this one comes in I know the difference 
 this one and that one, because I examined the two. [Witness illustrates with two 
 pieces of paper. ] 
 
 Q. Did you examine the tickets as they were voted ? A. No, sir ; but I examined 
 the same kind. 
 
 Q. Did you examine the tickets in the hands of the voters ? A. No, sir. 
 
 Q. Did you examine the tickets they voted ? A. No, sir. 
 
 James H. Parker states that there were no blanks or Acklen's tickets 
 distributed at poll 5, and, therefore, none voted ; but on cross-examina- 
 tion (Record, p. 259) says : 
 
 Q. Where were you on the day of election ? A. I was right there when they was 
 voting at the polls. 
 
 Q. In the house all day ? A. Until twelve o'clock ; then I went out. 
 
 Q. How long did you stay out ? A. About five minutes. 
 
 Q. Did you then return and remain in the house all day? A. Yes, sir. 
 
 C^. Did you know whether any Republican tickets bearing the nameof Acklen were 
 irculiited among the voters outside! A. No, sir; 1 did not sec any.
 
 ACKLEN VS. DARK ALL. 147 
 
 Q. Did you go among the voters ou the day of election ? A. Before the poll was 
 opened I did. 
 
 Q. Had there been Republican tickets with Acklen's name on them circulated among 
 the voters would you have been able to see after the polls were opened? A. No, sir; 
 I would not be able to see them. 
 
 The foregoing testimony fully proves the distribution and voting of 
 these Acklen and blank tickets at this poll. The count of the votes in 
 bulk is likewise shown in the testimony quoted. And that fact, in the 
 opinion of this committee, is fully established when it is borne in mind 
 that this box was sent in to the clerk of the court in less than one hour 
 after the closing of the poll. When it is remembered that there were 
 over three hundred ballots, containing over forty names each, to hjave 
 been counted and tallied, and the returns made up, it would be absurd 
 to suppose that the tickets were examined as to contestant's name, and 
 that they must have been, as the witnesses allege, counted in bulk; nor 
 does the testimony of the witnesses on behalf of contestee, also quoted, 
 in any wise impinge the facts so clearly shown. These, together with 
 the complete identification of the box, lead the committee to decide, with- 
 out hesitation, that this poll should stand as recounted. 
 
 POLL 6 STLNGLE'S STORE. 
 
 >ri'ERM80R*S RETUUX. RECOUNT. 
 
 Dem. Rep. Total. Blanks. 
 
 Acklen 156 Acklen 155 73 228 iq , 
 
 Pan-all 301 Darrall 99 99 
 
 The distribution of tickets. 
 A. J. Barnes, Republican (Eecord, p. 93), says: 
 
 I was United States supervisor at poll No. 6 in this parish, at Stingle's store. 
 
 Q. Mr. Barnes, who distributed the Republican tickets in your ward at the last 
 election ? A. Giles Hunter, Lycurgus Bess, and Charles Commeger, and myself. 
 
 Q. Who received those tickets from Mr. Wharton ? A. Myself. 
 
 Q. Do you remember what kind of tickets Mr. Wharton delivered to you ? A. Yes, 
 sir. 
 
 Q. State the kind. A. They were black-back tickets. 
 
 Q. Were those tickets all of one kind as regards the names, or were there such tiok- 
 an- known as Acklen tickets, and blank tickets, and straight tickets? A. Yes, 
 sir ; there were some with Mr. Acklen's name on them, and some with Mr. Dan-all's 
 name on them, and there was some blank tickets among them. 
 
 Q. You received those tickets yourself from Mr. Wharton ? A. Yes, sir. 
 
 Q. What did you do with them? A. I took them over the river and gave them to 
 Mr. Bess and Giles and Mr. Commeger. They were in town at the time, and I gave 
 them a good many tickets on the road before we got home. 
 
 Q. Were those tickets distributed around among Mr. Wharton's friends on the morn- 
 ing of the election ? A. A great many of them were distributed over-night, and a 
 great many of them were distributed next day; there were a great many distributed 
 over-night. I 
 
 Q. Did Mr. Wharton instruct you how to have those tickets distributed, and into 
 whose hands to have them placed ? A. Yes, sir; he told me how to distribute them 
 to give them around to the boys to give out. 
 
 Cross-examination : 
 
 Q. Can you swear positively that any of the persons to whom you distributed these 
 Republican tickets with Mr. Acklen's name on them voted them at the poll on that 
 day* A. Well, I can undoubtedly swear that some of the tickets that I distributed 
 with Mr. Acklen's name on them did get voted there. 
 
 Q. You swear to that fact ? A. Yes, sir; I know that. 
 
 Q. How do you know it ? A. Because I know that some of the voters came right 
 to the door wlwre they were voting, and they came in with the green-back tickets, 
 and they said they wanted the black-back tickets, and they took them and I saw 
 them when tliev went in.
 
 148 DIGEST OF ELECTION CASES. 
 
 Q. Are you certain it was one of those tickets with Mr. Ackleu's iianie on them ? A. 
 Yes, sir; 1 hail them in my hands. 
 
 Charles Commeger, Kepublican (Record, p. 99), says : 
 
 Q. Did you receive and distribute any hlack-back Wharton tickets with the name of 
 J. It. Acklen on them for Congress or with the Congressman's name left oft" at the last 
 election T A. I could not tell whether the Congressman's name was left off, but I 
 know one thing : that Mr. Acklen's name was on the ticket. I did not know the 
 gentleman, but I knew it was Mr. Wharton's ticket, and we all wanted to vote for him 
 in the seventh and fourth wards; and so we would have taken his tickets. The prin- 
 cipal part of the fourth ward would have been destroyed in his name if he was on 
 board the ship and she going to be sunk. 
 
 Q. From whom did you receive those tickets! A. From Andrew ,1. Barm--. 
 
 Giles Hunter, Republican (Record, p. 100), says : 
 
 Q. Did you distribute any tickets on the day of election, Mr. Hunter ? A. I did, sir. 
 
 Q. What kind of tickets? A. Mr. Wharton's tickets the black tickers. 
 
 Q. Did any of those tickets that you have mentioned have the name of J. H. Acklen 
 on them for Congress ? A. Yes, sir. 
 
 Q. How do you know that fact ? A. Because I saw it myself on the tickets. 
 
 Q. Did that make any dift'erence in the distribution of the tickets? A. No, sir; I 
 do not think it did. 
 
 Lycurguss Bess, Republican (Record, p. 97), says : 
 
 Q. Mr. Bess, did you receive and distribute any of the Whartou tickets on the day 
 of the election with' J. H. Acklen's name on them "or with the Congressman's name left 
 oft'? A. I distributed some of the Wharton tickets, or black tickets, with J. H. Ackleu's 
 name on them, but who the men were that I gave them to I do not know. I did not 
 know who Mr. Acklen was, but I understood he was Mr. Wharton's friend, and I was 
 going to support all that were on the ticket with Mr. Wharton, even if it was a rattle- 
 snake. 
 
 Q. Who gave you those tickets for distribution I A. Mr. Andrew J. Barnes. I was 
 np here on the day he got them, and they commenced distributing about 5 o'clock. 
 
 Chas. A. Brusle (Record, p. 51) says : 
 
 Q. State where you were at the election of November 7, 1876. A. I was in ward No. 
 4, at poll No. 6. I was there during the day. 
 
 Q. What was the color of the straight Republican tickets in this parish ? A. They 
 had a black back, I think. 
 
 Q. Did yon, after the election, ascertain that some of those tickets had the name of 
 J. H. Acklen printed on them ? A. During the day I did. I had no opportunities of 
 seeing them afterward, because I was not at the polls when they were counting the 
 votes ; I went home before the count was made. 
 
 Q. Was it not the common talk and rumor in the parish that many of those tickets 
 bore my name ? A. Yes, sir ; it was the impression throughout the parish that a great 
 many of them did. The fact is that it was supposed that you would cany a very large 
 vote. 
 
 The count of the votes. 
 
 Felix Roth (Record, p. 55) says : 
 
 Q. Yon were a commissioner there ? A. Yes, sir. 
 
 Q. Did yon count or assist in counting the votes there t A. I did, sir. 
 Q. Describe the way in which the votes were counted. A. The tickets were piled 
 in three different lots. 
 
 Cross-examination : 
 
 Q. You certified the returns from that poll to be correct? A. Yes, sir; and it was 
 correct as far as I could do it, sir. The only thing I might have slipped was the 
 name in this case. I had very little comfort and a great deal of difficulty. It was 
 one of the coldest nights that I ever saw in my life and I had no fire. That was the 
 only thing that might have happened ; errors might have happened. I do not pretend 
 to In- correct in every case ; I tried to do justice to both parties. 
 
 Thos. Johnson, at poll 6 (Record, p. 57), says : , 
 
 (,>. Did you arrange them in piles? A. Yes, sir; the Republican tickets together.
 
 ACKLEN VS. DARRALL. 149 
 
 We had two Republican tickets, the blue ticket and the black ticket, and then we had 
 the straight Democratic ticket. We counted each together. 
 
 A. J. Bariies, United States supervisor at poll 6 (Record, p. 94), says: 
 
 Q. Explain how the votes were counted after the polls were closed. A. They were 
 taken out and laid on the table, and all the black tickets were called straight Repub- 
 lican tickets, except those that had scratches on them, which were laid off on one side. 
 There were some white tickets that were scratched and there were some green tickets 
 that were scratched, and they were all laid aside. Then we looked where the scratches 
 were and it was fixed up. 
 
 Q. After those tickets had been glanced at to see whether they were scratched or 
 not, and assorted out in piles, were they then counted by tens and twenties? A. To 
 my recollection they were counted ten and twenty in a pile. 
 
 Q. In the way in which those tickets were counted could the commissioners, who 
 were looking to see whether they were scratched tickets or not, have easily overlooked 
 the name of J. H. Acklen on them ? A. Without any doubt they could have overlooked 
 a name, because a person who is not looking at any one name particularly, but just 
 taking up the ticket to see if there was any scratch on it, would just see if there was 
 any scratch, and then lay it down again. 
 
 Cross-examination : 
 
 Q. Were the votes first taken out of the box and carefully examined by some one of 
 the commissioners, and then piled up, and afterward counted in bulk? A. They were 
 taken out by Thomas Johnson and laid out in piles. 
 
 Q. Is Thomas Johnson an intelligent man ? A. Well, he can read and write. He 
 was a commissioner. 
 
 Q. Did the Democratic commissioner examine the tickets as they were taken out? 
 A. No, sir; I do not think he did. I think the only one who took them out after the 
 box was opened was Thomas Johnson. They were taken out by Thomas Johnson and 
 put in piles, and when they got so many in a pile they would mark them down. Mr. 
 CJonrrier was there, and Mr. Lorrisou, and Mr. Bergeron. 
 
 TJie identification of the box. 
 E. J. Wilson (Record, p. 268 says) Darrall's witness) : 
 
 Q. When the votes were placed back in the box how was the box sealed? A. We 
 put a sheet of paper right over the key-hole, and then we put the tape right below the 
 key-hole, and then we sealed it and signed it. 
 
 Q. The way that paper was placed and sealed on the box, if the box had been un- 
 locked and opened, would the paper have been broken ? A. Of course. 
 
 Q. Then it would have been impossible for that box to have been opened unless the 
 paper was broken ? A. Unless the paper was broken. 
 
 Q. Would you have recognized that box, and could you have told whether that box 
 had been tampered or interfered with by the appearance of that paper and the seals ? 
 A. Yes, sir. 
 
 Q. You are certain of that ? A. Yes, sir. 
 
 A. J. Barnes (Eecord, p. 59) says: 
 
 (The box of poll number 6 was here produced by the clerk of the court for identifi- 
 cation.) 
 
 Q. Is that the box from poll 6 ? A. Yes, sir. 
 
 Q. Did you seal that box yourself? A. Yes, sir; me and Mr. Roth. 
 
 Q. Is that the box just as you sealed it ? A. Yes, sir ; it seems so. 
 
 Q. Examine it carefully, please. A. It seems so. 
 
 Q. You sealed it yourself, did you ? A. Yes, sir ; me and Mr. Roth and Mr. Johnson. 
 Mr. Johnson held the caudle for me, and I took the wax and dropped it on here with 
 the caudle. 
 
 Q. Has not Mr. Roth defective eyesight, or is he not near-sighted ? A. Well, I never 
 heard him say anything about it. 
 
 Cross-examined by Mr. Jolley : 
 
 Q. Were you a commissioner? A. I was a supervisor. 
 
 Q. How do you reco^ni/e the, box ? A. Well, I know Johnson's signature and this 
 other signature of Mr. Wilson very well. 
 
 Q. Could you swear to that .signature and to that one? A. Yes, sir. 
 
 Q. Could you swear to that other one? A. Well, I have not seen his as often. This 
 gentleman, Mr. Wilson, learned me; I went to school to him. 
 
 Q. You sealed that liox yourself.' A. Yes. sir: me and Mr. Roth.
 
 150 DIGEST OF ELECTION CASES. 
 
 Q. You sealed the box ? A. Yes, sir ; I do not know which one held the candle, bat 
 I and Thomas Johnson and all the rest were there, and when I sealed it I know I was 
 very careful in sealing it up. Johnson was holding the caudle and the wax. 
 
 Q. Did they put their names on the key-hole f A. They put them there on top. 
 
 Q. Did Mr. Roth put his name on the key-hole I A. He put his name somewhere ; I 
 did not notice whether he put it on the key-hole. 
 
 Q. How did you know that he put his name on the box f A. Because I was stand- 
 ing right alongside of him ; we were very careful about it ; all of us were very 
 careful. 
 
 Mr. Darrall introduces E. J. Wilson as a witness as to this poll, who 
 states there were no blank or Acklen tickets at the poll; that none were 
 distributed, none voted, and none in the box, as he examined each and 
 every name on each and every ticket; but on cross-examination says 
 (Kecord, pp. 266, 267, 268) : 
 
 Q. Mr. Wilson, how many kinds of Republican tickets were voted at your poll? A. 
 Two. 
 
 Q. Describe them. A. The blue ticket and the black ticket. 
 
 Q. Did you distribute any of the black-back tickets? A. No, sir. 
 
 Q. In the house? A. Right in the house, sitting down to the table. 
 
 Q. Were you there all day ? A. All day ; never had a chance to go to get my dinner ; 
 had my dinner there. 
 
 Q. You did not go out at all? A. No, sir. 
 
 Q. I understand you to say that you distributed the blue-tickets, and not the black 
 tickets? A. Yes, sir; I distributed the blue tickets, but not the black. 
 
 Q. Who assisted you in counting these votes ? A. Well, there was Mr. Roth and 
 Thomas Johnson and myself. 
 
 Q. Did you keep any of the tally-sheets ? A. I kept the tally-sheets; yes, sir, all 
 the time; and it was correct with the tickets that come out of the box. 
 
 Q. I mean, who kept the tally-sheet when you counted all the tickets at night? A. 
 I kept the tally-sheet. 
 
 Q. When the tickets were taken out of the box were they not arranged in separate 
 piles? A. Yes, sir. 
 
 Q. Then, when the number of Republican tickets were given to be tallied down, 
 were they not called out in this way so many straight Republican tickets, so many 
 straight Democratic tickets ; and then were not the scratched tickets taken out and 
 read separately? A. Yes, sir; separately, one by one. 
 
 Q. When the tally was made, was each straight Republican ticket taken up and 
 read, every name off, or was the bundle counted through and then tallied ? A. We 
 taken ten straight tickets out. I examined ten straight tickets one at a time, and, of 
 course, we put them down ; then we took that tally off, and then we would take ten 
 more straight tickets, and we would put them down, and we continued that way until 
 the box was through ; and all the scratched tickets we called them one by one, name 
 by name. 
 
 Q. Now, you stated that you particularly examined these scratched tickets your- 
 self? A. Yes, sir. 
 
 Q. And are certain that Dr. Darrall was not scratched on any of them ? A. Yes, sir. 
 
 Q. Did Dr. Darrull get the full Republican vote at that poll ? A. Yes, sir. 
 
 Q. You are certain of that? A. I am certain of that. 
 
 Q. If he had been scratched on three or four tickets would you have noticed it ? 
 A. Yes, sir; because we called all the names off the scratched tickets; we called them 
 out separately, one by one, every name on the ticket. 
 
 Q. You say that Dr. Darrall got the full Republican vote of that poll? A. Yes, sir. 
 
 Q. Here is a certified copy of the consolidated vote of the parish of Iberville. What 
 is the vote for Dr. Darrall at your poll on that paper? (Consolidated return presented 
 to witness.) A. Three hundred and one for Dr. Darrall. 
 
 Q. What is the vote i'or Governor Packard there? A. Three hundred and eight. 
 
 Q. For C. C. Antoine? A. Three hundred and eight. 
 
 S. I understood you to say that Dr. Darrall received the full Republican vote at that 
 ? A. Yes, sir. 
 
 Q. How do you account for the fact that he falls seven votes behind Governor Pack- 
 ard, aernrding to the returns? A. I could not tell anything about that. 
 
 Q. Has not Air. Felix Roth got defective eyesight? A. Yes, sir; can't see without 
 spectacles at night. 
 
 Q. Examine those tickets Mr. Wilson. (Black-back tickets presented to the wit- 
 ness.; Did you discover any <lit)V-rence in them? A. There is a difference in one or 
 two of them. 
 
 Q. What is the difference? A. I see your name in plaoe of Darrall's. 
 
 <}. I> there any other differedce ? A. No, sir.
 
 ACKLEIN VS. DARRALL. 151 
 
 Q. Was this black ticket the black-back ticket, as well as you remember, that was 
 voted at your poll 6? A. Yes, sir: I could tell you better if I had a pair of specta- 
 cles. 
 
 Q. Are you troubled with weak eyes? A. Sometimes I am, and sometimes I can see 
 pretty well. 
 
 Q. Did you have your own spectacles that night ? A. No, sir ; I borrowed Mr. Felix 
 Roth's. 
 
 Q. How did Mr. Felix Roth manage to see without his spectacles? A. When I got 
 through I passed them to him. 
 
 Q. How long did he lend you his spectacles? A. For the time that I needed them. 
 
 Q. How long did you need them ? A. I did not need them more than twenty-five 
 or thirty minutes at a time. Then when he needed them I would give them to him. 
 
 Q. What were you doing when he had the spectacles? A. W T ell, I was counting 
 out the votes, and so on. 
 
 Q. Did you handle all the tickets while Mr. Roth had the spectacles? A. No, sir; 
 I did not. 
 
 Q. Did Mr. Roth handle any of the tickets while you had the spectacles? A. No, 
 flir. 
 
 Q. You always use spectacles? A. Not at all times; only when it troubles me. 
 
 Q. Would your eyes be likely to trouble you in examining carefully any small prints 
 for five or six or seven or eight hours in succession ? A. But it sometimes don't ; some- 
 times I could read all day and sometimes I could not. 
 
 Q. Do you think that you could read all day and read all night, too, without your 
 yes affecting you ? A. No, sir; I could not do that. 
 
 Q. What sort of light did you have in yonr room? A. We had candles; some five 
 or six. 
 
 Q. Where were the candles placed? A. They were placed all around the box, so 
 that we could have plenty of light to see. 
 
 Q. Was the night a cold and disagreeable night? A. Yes, sir. 
 
 Q. Have fire in the room ? A. We did not have any fire. We had no place to make 
 the tire. It had been a gin-house. 
 
 Q. The wind came in, then? A. No, sir; there was no wind. It was perfectly 
 closed, but we had no place to make the fire. 
 
 Q. Were you comfortable there? A. We were tolerably comfortable, only our toes 
 bothered us from the cold. 
 
 Q. You suffered a good deal from the cold? A. Yes, sir; although there was no 
 wind to get to us. 
 
 Q. Were you not all pretty anxious to get through the count? A. Yes, sir; we 
 were. 
 
 Thomas Johnson, colored, Republican commissioner at poll No. 6, 
 says (Dan-all's witness): 
 
 Q. Did you assist in counting the votes at your poll after the election? A. Yes, sir. 
 
 Q. Did you examine any tickets yourself? A. The tickets were counted in bulk, by 
 tens and twenties. 
 
 Q. Who took the tickets out of the box? A. I did. 
 
 Q. Did you look at them as you took them out of the box ? A. No, sir; just put all 
 the Republican tickets to themselves and all the Democratic tickets to themselves. 
 There were two Republican tickets running ; a blue ticket and a black Republican 
 ticket. The Democratic ticket was a white ticket ; one Republican ticket with a black 
 back, and then the other was blue. We had taken the blue tickets and counted them 
 to themselves in bulk, and the black tickets likewise, and then the Democratic tickets 
 the same ; but, as counting out, one by one, we did not do it. 
 
 Q. Did yon examine the face of any of the tickets yourself? A. Only examined 
 one. I had twenty in bulk, and one I just called the names from as I walked. I 
 just called off the names, so many and so many votes, from just the first one. I didn't 
 take them all and examine them through; I didn't examine them all through. 
 
 C^. What did Mr. Wilson do? Did he examine tickets? A. No, sir; he didn't ex- 
 amine them through, I don't believe. 
 
 Q. Did he examine the tickets at all? A. Just stood there and took them away 
 from me, as I counted them out in twenties. 
 
 Q. Did other officers examine the tickets? A. No, sir; the Republicans were to 
 themselves, and the Democrats likewise. 
 
 Q. You say you counted them in bulk ; did you take them in bulk of tens of twen- 
 ties ? A. In twenties. 
 
 Q. The straight tickets? A. Yes, sir ; and the scratched tickets we laid aside until 
 we got through, then we counted them last. There were some names that were 
 scratched out; we couldn't ount them in bulk with the others; we counted them to 
 themselves.
 
 152 DIGEST OF ELECTION CASES. 
 
 Cross-examination : 
 
 Q. Then there could have been tickets with my name on them ? A. There could! 
 have been tickets with your name on them, but we counted them in bulk ; we didu't 
 examine them close ; didn't have time to count them one by one. 
 
 Q. Did you see the box sealed? A. Yes, sir ; I saw it sealed. 
 
 Q. Was the box not sealed with a paper sealed on top, the place where the votes go- 
 in, then the paper carried over the side of the box and down over the key hole, and 
 sealed there again ? A. Yes, sir ; it was sealed where the tickets go in and sealed over 
 the key-hole also. 
 
 Q. And the paper carried over the edge of the box ? A. Yes, sir. 
 
 Q. Then the box couldn't have been opened without breaking that paper or seals r 
 could it? A. No, sir; it could not have been opened except bv breaking those papers- 
 off. 
 
 The committee find the proof of the distribution and voting of these 
 Acklen and blanks at this poll complete, likewise the identification of 
 the box as being intact, to have been beyond question. The proof as to 
 the count of the votes in bulk is in no wise questioned save by the tes- 
 timony of contestee's witness Wilson, which has been quoted at length, 
 and this is rebutted by that of this other witness, Johnson, whose testi- 
 mony is flatly contradictory of that of Wilson. 
 
 The committee are clearly of the opinion that this poll should stand 
 as recounted. 
 
 At poll 7 the distribution of these Acklen and blank tickets is proven 
 by Chrs. Commyer (Eeport, pp. 99 and 100). The votes are shown to 
 have been counted in bulk by the testimony of Adonis Le Blanc, com- 
 missioner (Report, p. 58). Nor are the facts set forth sufficiently ques- 
 tioned or controverted in the testimony of the only witness the contestee 
 produces at this poll, viz, J. M. Carville (Report, p. 197) ; but when the 
 box previous to the recount was presented to the witness Le Blanc, he 
 was not able to identify it, and although in the opinion of this commit- 
 tee its identity is sufficiently established by the testimony of C. H. 
 Gordon and James Crowell, the present and former clerks, yet this 
 committee, out of abundant caution, conclude, as the names of the com- 
 missioners were not written on the box, to let it stand as originally 
 counted in favor of contestee, as it does not affect the result, although 
 they would feel justified in accepting the recount at this poll. 
 
 CONCLUSIONS. 
 
 Your committee, reviewing the entire case, are led to the following 
 conclusions : 
 
 First. They disregard the return of the vote made by the Wells- An- 
 derson return ing-board because of the most flagrant fraud, and of the 
 exercise of judicial power by said board by arbitrarily for no other rea- 
 son than to achieve a result in accordance with their will. 
 
 Second. They adopt the count of the votes as declared by the present 
 legal board of canvassers in all the parishes except those of Saint Mar- 
 tin's, La Fourche, and Iberville. That board counted the vote actually 
 cast, and returned it without the exercise of judicial powers and without 
 disfranchising any portion of the people. It is composed of men of high 
 character, Republicans and Democrats, and there is every reason to give 
 full faith and credit to its official acts. 
 
 The committee adopt the returns of this board, as shown by the table 
 here below quoted. 
 
 But the board of canvassers omitted from their count the vote of 
 Saint Martin's, declaring the returns from that parish (Record, p. 13) 
 to be forged. But there is no other proof of this fact, and the committee
 
 ACKLEN VS. DARRALL. 
 
 153 
 
 adopt the current agreement of contestee and contestant (Record, p. 
 172) with regard to said parish, and therefore return it as follows : 
 
 C. B. Darrall. J. H. Acklen. 
 Saint Martin's 1, 095 1, 027 
 
 In the parish of La Fourche, the committee, in full accordance with the 
 proof and the decree of the supreme court of Louisiana in the case of 
 Welre 0. Wilton (Kecord, p. 2), reject the vote of poll 17, where 86 votes 
 were cast for coutestee, and return said parish as follows : 
 
 C. B. Darrall. J. H. Acklen. 
 La Fourche 1,929 2,086 
 
 In the parish of Iberville the committee adopt there count of the 
 votes at polls No. 2, 3, 4, 5, and 6, as per tabulated statement here below 
 given, and return said parish as follows : 
 
 C. B. Dan-all. J. H. Acklen. 
 Iberville Parish 1,423 1,468 
 
 Having thus considered these polls seriatim, the committee decide 
 the following to be the proper and just vote for the parish of Iberville, 
 
 viz : 
 
 Poll. 
 
 Acklen. Darrall. 
 
 1 
 
 44 
 
 218 
 
 ) 
 
 340 
 
 86 
 
 3 
 
 219 
 
 189 
 
 4 
 
 34 
 
 105 
 
 5 
 
 158 
 
 TO 
 
 6 
 
 228 
 
 99 
 
 7 
 
 58 
 
 187 
 
 8 
 
 59 
 
 55 
 
 9 . 
 
 250 
 
 122 
 
 10 
 
 33 
 
 193 
 
 11 
 
 45 
 
 90 
 
 
 
 
 
 1,468 
 
 1,423 
 
 Or a majority in this parish for the contestant of 45 votes. And in the 
 entire district the committee decide that the following table shows the 
 proper and just vote as cast in the different parishes for the contestant 
 and contestee : 
 
 Names of parishes. 
 
 C. B. Darrall. 
 
 Joseph H. Acl 
 
 
 Votes. 
 2,059 
 
 Votet. 
 1,215 
 
 
 1 692 
 
 1.679 
 
 
 1 966 
 
 1,393 
 
 Saint Mary .. . 
 
 2,385 
 
 1,423 
 
 Iberia -. 
 
 1.455 
 
 1,242 
 
 La Fayette .. . 
 
 661 
 
 1,157 
 
 Vermillion . 
 
 228 
 
 955 
 
 Calcasieu . . . 
 
 91 
 
 1,291 
 
 Cameron . . 
 
 69 
 
 225 
 
 La Fourche . . 
 
 1,929 
 
 2,086 
 
 Saint Martin's . 
 
 1,095 
 
 1,027 
 
 Pberville 
 
 1,423 
 
 1,468 
 
 
 
 
 Total ; 15,053 < 15,161 
 
 Or a majority in the entire district for the contestant of 108 votes.
 
 154 DIGEST OF ELECTION CASES. 
 
 Your committee therefore recommend for passage by the House of 
 Representatives the following resolutions : 
 
 Resolved, That Chester B. Darrall was not elected and is not entitled 
 to a seat in the House of Eepresentatives from the third Congressional 
 district of Louisiana. 
 
 Resolved, That Joseph H. Acklen was elected and is entitled to a seat 
 in the House of Representatives from the third Congressional district 
 of Louisiana. 
 
 JOHN T. HARRIS. 
 
 WILLIAM M. SPRINGER. 
 
 MILTON A. CANDLER. 
 
 iJAC. TDRNEY. 
 
 THOS. R. C >BB. 
 
 JERE. N. WILLIAMS. 
 
 E. JNO. ELLIS. 
 
 Mr. PRICE, from the Committee of Elections, submitted the following 
 
 VIE WS. 
 
 An examination of this case discloses the following facts : 
 The third Congressional district of Louisiana is composed of the par- 
 ishes of Ascension, Assumption, Terre Bonne, Saint Mary, La Fayette, 
 Vermilliou, Calcasieu, Cameron, La Fourche, Saint Martin, and Iber- 
 ville. On the 7th day of November, 1876, an election was held in this 
 Congressional district for a member of the Forty-fifth Congress, and 
 after the election, and after the votes at the polls at all the parishes 
 had been counted by the legally-authorized officers, and the returns 
 made as required by law, the following certificate of election was issued : 
 
 STATE OP LOUISIANA, EXECUTIVE DEPARTMENT, 
 Third District of Louisiana, Neic Orleans, December 28, 1876. 
 
 Be it kiiown that at an election begun and held on the 7th day of November, A. D. 
 1876, for members of Congress, Chester B. Darrall received 15,626 votes, and Joseph 
 H. Acklen received 13,533 votes. 
 
 Now, therefore, I, William Pitt Kellogg, governor of the State of Louisiana, do 
 hereby certify that Chester B. Darrall received a majority of the votes cast at said 
 election, and is duly and lawfully elected to represent the third Congressional district 
 of the State of Louisiana in the Forty-fifth Congress of the United States. 
 
 Given under my hand and the seal of the State this 28th day of December, A. D. 
 1876, and of the Independence of the United States the one hundred and first. 
 
 WM. P. KELLOGG. 
 By the governor : 
 [SEAL.] P. G. DESLONDE, 
 
 Secretary of State. 
 
 From which it appears that Chester B. Darrall was legally elected as 
 a Representative to the Forty-fifth Congress from said third district of 
 Louisiana. 
 
 Subsequent to this, and after the inauguration of the Nicholls gov- 
 ernment, a law was passed creating a new returning-board, and this 
 new board, created under a new law, proceeded to a recanvass of the 
 same returns for the same office for the same district, and, after a full 
 canvass, Governor Nicholls issued the following certificate of election : 
 
 UNITED STATES OF AMERICA, 
 EXECUTIVE DEPARTMENT, STATE OF LOUISIANA. 
 This is to certify that at a general election, begun and held in the State of Louisiana,
 
 ACKLEN VS. DARRALL. 155 
 
 am! in the third Congressional district of said State, on the ?th day of November. 1676, 
 it being the first Tuesday after the-tirst Monday in said mouth, and the day prescribed 
 by the laws of the United States and the said State of Louisiana for the election of 
 Representatives in Congress from the said State, C. B. Darrall and Joseph H. Ackleu 
 appear from the returns of said election, tiled in the office of the secretary of state, 
 within and for said State, to have been the only persons voted for in the third Con- 
 irressional district of said State for Representative in the Forty-fifth Congress of the 
 United States from said State ; and that it further appears from said returns on file and 
 of record in said office that C. B. Darrall 15,786 votes and Joseph H. Acklen received 
 14. 0912 votes for Representatives as aforesaid in said district ; and that C. B. Darrall, 
 having received a majority of the votes cast for Representative from the third district, 
 in said State of Louisiana, in the Forty-fifth Congress of the United States of America 
 at said election, has been duly, lawfully, and regularly elected to represent said third 
 district of said State in the aforesaid Congress of the United States, in accordance 
 with the laws of the United States, and of the State of Louisiana. 
 
 FRANCIS T. NICHOLLS, 
 Governor of the State of Louisiana. 
 
 We, Francis T. Nicholls, governor of the State of Louisiana, and Oscar Arroys, assist- 
 ant secretary of state of said State, do hereby certify that the above and foregoing 
 declaration of the result of the election begun and held in the third Congressional 
 district of the State of Louisiana on the 7th day of November, 1876, is a true copy of 
 the original certificate, as recorded in the office of the secretary of state of the State 
 of Louisiana, by the secretary of state, and signed by the governor. 
 
 "Witness our hands and the seal of the State of Louisiana, at the city of New Or- 
 leans, this 27th day of February, 1877. 
 
 FRANCIS T. NICHOLLS, 
 Governor of the State of Louisiana. 
 OSCAR ARROYS, 
 
 Jxsistaiit Secretary of State. 
 
 From which it appears that Chester B. Darrall, the same man for the 
 same office, was elected. 
 
 By the Kellogg returning- board Darrall's majority is 2,093, and by 
 the Nicholls returning-board it is 1,094. 
 
 The difference in majorities arises in this way: in making the returns on 
 which the first certificate was given, the supervisors of registration had 
 rejected polls in parishes as follows : Poll 4, Iberia Parish : polls 1 and 
 3, La Fayette Parish; polls 2 and 10, La Fourche Parish (remember 
 that these were rejected by the parish officer and never came to the re- 
 turning-board ; and poll 2, in La Fayette Parish, was rejected by the 
 returuing-board. These polls being rejected, left the majority of con- 
 testee 2,093, as above. 
 
 But when the Democratic returning-board came to make up their 
 returns, they included all of the polls rejected, and that gave con- 
 testee a majority of 1,094. as above stated. These Democratic returns 
 were made from the copies of the original papers on file in the clerk's 
 offices of the various parishes of the district, and are submitted by con- 
 testant as evidence. (See pp. 14, 15, 16, 17 of the Record.) 
 
 A new canvass of all the votes of all the polls in all the parishes 
 having been made by a returuing-board created by contestant's political 
 friends, and the result being still against him, some other plan must be 
 devised to accomplish his purpose, and, therefore, four months after the 
 election, and two months after it is the duty of any person to protect 
 and keep safely the ballot-boxes in which the votes cast at said election 
 were deposited, the contestant procured a recount of the ballots then 
 found in the boxes in the parish of Iberville, and upon this recount, and 
 upon that alone, does he now base his claim for the seat. If the re- 
 count had been made within the time required by law that the ballots 
 should be carefully preserved, and the boxes had been deposited and 
 kept as the law required, some weight might be given to the recount, 
 though MeCrary on Elections, sees. 93,96, 277, 279, is authority against
 
 156 'DIGEST OF ELECTION CASES. 
 
 it. But neither of these conditions bus been complied with, and con- 
 sequently the recount is of no effect. 
 
 We quote: 
 
 McCrary on Elections, section 93 : 
 
 A canvassing-board having once counted the votes, and declared the result accord- 
 ing to law, has no power or authority to make a recount. When this duty is once 
 fully performed, it is performed once and forever and cannot be repeated." (Bowen 
 vs. Hexon, 45 Mo., 350; Gooding i-. Wilson, Forty-second Congress.) 
 
 In the former case the court say : 
 
 To suppose that it could be renewed, that the canvass of one day could be repeated 
 the next, and counter-certificates be issued to different contestants as new light or in- 
 fluence was brought to bear upon the mind of the clerk, would render the whole pro- 
 ceeding a farce. 
 
 And in the latter case the report of the committee has this language : 
 
 On examination of the precedent it does not appear that this House favors the set- 
 ting aside of official and formal counts made with all the safeguards required by law, 
 on evidence only of subsequent informal and unofficial counts without such safeguards. 
 No instance was cited at the hearing where the person entitled by the official count 
 was deprived of his seat by a subsequent unofficial count. On principle, it would 
 seem that if such a thing were, in the absence of fraud in the official count, in any 
 case admissible, it should be permitted only when the ballot-boxes had been so kept 
 as to be conclusive of the identity of the ballots, and when the subsequent count wa 
 made with safeguards equivalent to those provided by law. In the absence of either 
 of these conditions, the proof, as mere matter of fact, and without regard to statu- 
 tory rules, would be less reliable and therefore insufficient. 
 
 McCrary on Elections, section 96 : 
 
 In Kline vs. Myers (1 Bartlett, 574) the House refused to order a recount of ballots 
 upon the request of contestant. One reason was that the contestant did not offer 
 evidence sufficient to show, even presumptively, that the original count was errone- 
 ous or fraudulent. But another reason was the great danger of attempting to set 
 aside the official count by a reopening of the boxes and a recount of the ballots 
 months after the election. And upon this latter point the committee, in their report, 
 say: "To adopt a rule that the ballot-boxes should be opened upon the mere request 
 of the defeated candidate would occasion more fraud than it could possibly expose. 
 The number of ballot-boxes in each Congressional district is seldom less than fifty, 
 and often more than two hundred. They are usually left in the care of a magistrate 
 or some township officer, by whom they are deposited in no safer place than an upper 
 shelf in a public office. The opportunities of tampering with the boxes thus scat- 
 tered through the district would be abundant, and if it were known in advance that 
 a second count could be had without discrediting the first the temptation to do so 
 would be strong." 
 
 It should be remembered that the fact sought is not what the ballot-boxes contain 
 six months or a year after the election, but what they did contain after the last vote 
 was deposited on the day of election. 
 
 Certainly an impartial, accurate, and public count then by the sworn officers would 
 be better evidence of that fact than any subsequent count, not more impartial, and 
 not presuming to be more accurate than the first, and after the boxes had long been 
 exposed to the tampering of dishonest partisans. 
 
 McCrary on Elections, section 277 : 
 
 Where, as is the case in several of the States, the statute provides a mode of pre- 
 serving the identical ballots cast at an election for the purpose of being used as 
 evidence in case of contest, such statute, and particularly those provisions which 
 provide for the safe-keeping of such ballots, must be followed with great care. The 
 danger that, after the count is made (especially if the vote is very close), the ballots 
 may be tampered with, is so great that no opportunity for such tampering can be 
 permitted. Such ballots, in order to be received in evidence, must have remained in 
 the custody of the proper officer of the law from the time of the original count until 
 they are produced before the proper court or officer, and if it appear they have IMHMI 
 handled by unauthorized persons, or that they have been left in an exposed or im- 
 proper place, they cannot be offered to overcome the official count. See Gooding vs. 
 Wilson (Forty-second Congress), Butler vs. Lehman (1 Bartlett, 354), Kline va. Verm 
 (ibid., 381).
 
 ACKLEN VS. DARRALL. 157 
 
 In Butler vs. Lehmaii the House of Representatives, after a full dis- 
 cussion, sustained the minority of the committee in rejecting ^ recount 
 upon the ground that tne ballot-boxes had not been so kept as to rebut 
 a reasonable presumption that they had been tampered with. 
 
 McCrary on Elections, section 279: 
 
 The cast- of Archer r. Allen (1 Bartlett, 169) is another case in which there was a 
 recount of the ballots after the official count had been iiia<b- and the result announced. 
 The official canvass showed rlie eb-etion of the incumbent by a majority of only out- 
 vote. The recount, which was made four months after the election, n -suited in the 
 alleged discovery of a mistake of two votes in favor of contestant, just sufficient to 
 change the result. The necessity for proving affirmatively that the ballots had not 
 been tampered with seems To have been felt and conceded by the contestant, and a 
 deal of testimony was taken upon that point, enough, according to the report 
 of the majority of the committee, to make it clear that the ballots counted at the 
 d and unofficial count were the identical ballots originally deposited in the box. 
 The minority of the committee, however, took the opposite view and insisted that 
 the proof of identity was insufficient. 
 
 After an elaborate debate in the House, the report of the majority, declaring the 
 incumbent not duly elected, was adopted, but the resolution giving the seat to the 
 contestant was lost, and the seat thereby became and was declared vacant. 
 
 CAREFULNESS OF THE OFFICIAL COUNT. 
 
 The correctness of the first count of the ballots is established by the 
 testimony of the officers of election, both Republican and Democratic. 
 
 POLL i. The three commissioners of election, Piernas, Roth, and 
 Dubuclet, testified, and Verrett, one of the supervisors 
 
 Amadee Roth, Democrat (p. 56): 
 
 Q. How did you count the votes at that poll? A. Well, we counted them in this 
 way : we took all the. straight tickets of each side and set them aside, and then the 
 scratched tickets. 
 
 Q. What was the color of the straight Republican ticket ? A. Black. 
 
 Q. Did yon. alter the election, hear any one state that the name of J. H. Acklen 
 had been on any of the Republican tickets? A. I did after the election. 
 
 Q. In the way in which those tickets were counted by you, could the name of J. 
 H. Acklen have been on some of them without your seeing it? A. Well, it mighfh&ve 
 been, because I did not count all the tickets. 
 
 Q. Were yon a Democratic or a Republican commissioner? A. For the Democratic 
 party. There were two Republicans, and I was a Democrat. 
 
 Q. Did you certify to the returns from that ward as being correct in every particu- 
 lar ? A. Yes, sir; as far as I understand about election returns, because I have taken 
 a great deal of j;auis to carry everything along straight. 
 
 Piernas (p. 262): 
 
 Q. Did you assist in counting the votes after the polls were closed? A. Yes, sir; 
 holding the box and seeing the name of the voters. 
 
 Q. State in what manner the votes were counted. A. We counted the vote. We 
 passed all ortr the tickets first to see whether there were different names on the tickets, and 
 then ice counted the rotes. 
 
 Q. Who assisted you in scrutinizing the tickets ? A. Mr. Amade'e Roth ; all three 
 of us were counting the votes. 
 
 Q. Did you carefully scrutinize erery ticket and the name on every ticket ? A. Yes, sir. 
 
 Q. Before yon counted them 1 A. Yes, sir. 
 
 Q. Do you remember the vote for member of Congress at that poll? A. I can't rec- 
 ollect what it was exactly, because I did not take no memorandum. 
 
 Q. You don't remember the vote? A. Not in special or particular. 
 
 Q. Mr. Pieruas. in scrutinizing these tickets and in examining them did you exam- 
 iitt t-i-ery name on the ticket ? A. 1Y*. M> : erery name. 
 
 Q. If there had been any Republican tickets with the name of Mr. Acklen on for 
 Congress, would you have seeu them f A. I would, but I did not see none of them. 
 
 Q. If there had been any tickets with uo name on for member of Congress, would 
 you have seen them ? A. All the Republican tickets had the name of Darrall on every 
 one of them. 
 
 Q. What kind of tickets were there in the poll? Was there more than one kind of 
 Republican ticket? A. There was another kind, but there was only one ticket.
 
 158 DIGEST OF ELECTION CASES. 
 
 Q. Were these Republican tickets a black-back ticket ? A. It was a green ticket. 
 Q. Then, was there jjreen tickets? A. Tho green ticket was green all over. 
 Q. Was that a Republican ticket! A. That was, so caHed, a Republican ticket. 
 Q. You are positive Mr. Dan-all's name wasou all these tickets? A. Yes, sir; I am 
 positive of that. 
 
 Verrett (p. 270): 
 
 Q. Did you witness or' assist in counting the votes as polled after the election? A. 
 Yes, sir. 
 
 Q. Did you carefully examine the tickets ? A. Yes, sir. 
 
 Q. Did you examine all the tickets ? A. Yes, sir. 
 
 Q. Were you assisted in counting the votes by other officers? A. Yes, sir. 
 
 Q. How many? A. There was Mr. Dubuclet, Mr. Leonce Soniat, Mr. Roth. Soniat 
 was Democratic supervisor. There was another gentleman there I can't recollect km 
 name ; he was only an assistant. 
 
 Q. Was there three commissioners and two United States supervisors at the poll ? 
 A. Yes, sir. 
 
 Q. Did you scrutinize the tickets before they were counted ? A. Yes, sir. 
 
 Q. Who looked over the tickets ; what officers looked over the tickets and scrutinized 
 the names on them? A. The same ones that I just now mentioned. 
 
 Q. Did you yourself carefully observe every ticket and the names on theiu! A. 
 Yes, sir. 
 
 Q. Can you give the number of votes received by each candidate for Congress, or 
 near? A. No, sir. I never took no statement; I did have one at the time, butllogt it. 
 
 Q. Have you heard of a recount of the votes made in that box ? A. Yes, sir ; I heard 
 gome conversation about it when I came up in Plaquemine here some time ago. 
 
 Q. Would it be possible for three commissioners of elections, assisted by two United 
 States supervisors, acting under oath, to have made any mistake in counting and com- 
 piling of the vote as it was done by yourself? A. I should think not, because they 
 were very particular in the count. 
 
 Q. As the votes were counted could you have made a mistake of one hundred or two 
 hundred votes for member of Congress ? A. No, sir. 
 
 Dubuclet (p. 264) : 
 
 Q. Did yon assist in counting the votes as polled, after the election ? A. Towards 
 the last I helped to count the votes. I counted the scratched tickets, but the whole 
 tickets was counted by Mr. Piernas and Mr. Amade~e Roth. 
 
 Q. When you opened the box, who took the tickets out ? A. Mr. Piernas and Mr. 
 Roth. 
 
 Q. As you only counted the scratched tickets, Mr. Dubuclet, could there have been 
 any mistakes made on the other tickets and you not know it ? A. I did not think they 
 conld make any mistake. I know they did not make any. 
 
 . Q. How do you know they did not make any ? A. Because they was sworn. I sup- 
 pose that they was to do it, and we were all sworn together to do it correct. 
 
 Q. You were tallying, were you not A. Yes, sir. 
 
 POLL 2. Craig and Smith, commissioners of election, and Davidson, 
 supervisor testified 
 Smith, Democrat (p. 54) : 
 
 Q. Did you count or assist in counting the votes at that poll? A. I assisted in 
 counting them. 
 
 Q. Describe the manner in which the votes were counted. A. The box was opened 
 and the tickets were taken out, and the Democratic tickets were strung on a string 
 and the Republican tickets were strung on a string, and the scratched tickets also, 
 and then they were taken off and called off of each string. 
 
 Q. Did you call off the tickets ? A. No, sir ; I did not. 
 
 Q. Did you take the tickets from the box ? Did you scrutinize them in any man- 
 ner ? A. I saw the gentleman taking them out. I was present and saw him take 
 them out and string them on the string, as I told you. 
 
 Q. You were one of the commissioners ? A. Yes, sir. There was a marshal there 
 also who superintended everything. I saw everything. 
 
 Q. You say you did not scrutinize the votes? A. No, sir; I never looked at them. 
 
 Q. Did you certify to the returns as being correct after the tally -sheets were made 
 t ? A. Well, the account, sir, was right as called off. 
 
 Q. Did you certify it as being correct t A. Yes, sir ; as commissioner. 
 
 Davidson (p. 249), a member of the legislature : 
 
 <J. Did yon take any part in the counting of the votes ? A. I did when the poll was
 
 ACKLEN VS. DAKRALL. 159 
 
 closed. The box was opened, and Mr. Robert O. Hebert took out the tickets and ex- 
 amined them, and we heldjthera np and looked at them ; and Mr. Craig, he was another 
 Republican, stood right qp the other side of him; and Mr. J. D. Hebert, he waa a 
 Democratic supervisor, he stood on the other side; and Mr. Hebert would take the 
 tickets out, and he would say, "straight Republican ticket," or whatever the ticket 
 might be, and these three men would look over. They would count the tickets to Mr, 
 William A. Smith he was the Democratic supervisor and Mr. Smith held a needle 
 with thread on it, and I took the tickets from Mr. Smith and put them on the needle, 
 and Mr. Smith would pull the string. I put straight Republican tickets on one string ; 
 that is, just as they handed them out. When we would come to a straight Democratic 
 ticket, we would lay them in a separate pile, and when we would come to a scratched 
 ticket we would lay them in a separate pile. The straight Republican tickets were 
 strung ; then we strung the Democratic tickets. 
 
 Q. Did they string the scratched tickets ? A. They were strung after they were 
 counted, on a separate string. 
 
 Q. In placing these tickets on the needle did you place the face of the ticket up- 
 ward I A. The face upward. 
 
 Q. Did you scrutinize and notice what names were on those tickets as you placed 
 them on the needle ? A. We did, because we noticed at the time that Mr. Carville was- 
 spelled "Clarville," and also that Mr. Wheeler's name was spelled "Weeler" instead 
 of "Wheeler." 
 
 Q. Who first noticed these mistakes on the tickets T A. The one of Mr. Carville's 
 was by Mr. Robert O. Hebert, and the one of Wheeler's I discovered it myself in dis- 
 tributing the tickets. 
 
 Q. You knew, Mr. Davidson, that these Republican tickets with Mr. Acklen's name 
 on them were in existence before the election ? A. Oh, yes. 
 
 Q. Now, then, knowing that, and in stringing these tickets, did you carefully ob- 
 serve whether any of those tickets with his name on them were voted? A. I did. 
 
 Q. Were any of^them voted as a matter of fact at that poll ? A. Not one. 
 
 Q. Do yo-u remember, Mr. Davidson, about the vote for member of Congress at that 
 poll ? A. Three hundred and odd ; I don't exactly know. 
 
 Q. Wlt, about how many ? A. About one hundred and fifteen for Mr. Acklen or one 
 hundred and fourteen. 
 
 Q. Have you heard of a recount that was made of the votes in that poll ? A. I have 
 heard of it. 
 
 Q. Have you heard or do you know the number of votes for member of Congress in 
 that recount as claimed ? A. I seen, according to what was published in the Times, 
 there has been a change of about three hundred votes, something in the neighborhood 
 of three hundred votes. 
 
 Q. Could a mistake of that magnitude have been possible in the manner in which 
 these tickets were counted and scrutinized? A. No, sir; because every one there 
 seemed anxious to see them counted. There was more Democratic spectators there 
 than Republicans. 
 
 Q. How, then, do you account for the change in the number of votes as called for in 
 this recount ? A. I cannot account for it unless the boxes had been stuffed since they 
 have been deposited in the clerk's hands. 
 
 Craig (p. 272) : 
 
 Q. Did you assist in counting the votes, as polled, after the election ? A. Yes, sir ; 
 I did. 
 
 Q. Did you examine the tickets carefully and scrutinize all the names on trhe 
 tickets ? A. Yes, sir : I did, to the best of my knowledge. 
 
 Q. Did you handle the tickets yourself? A.. Yes, sir. 
 
 Q. All of them? A. Yes, sir; I had taken the tickets out with the assistance of Mr. 
 Robert Hebert ; and Mr. Smith was also on one side tallying, and Mr. Robert Hebert 
 was on the other. I scrutinized the tickets from the box. 
 
 Q. Have you heard of the recount of the vote for Congressman, made at the request 
 of Mr. Acklen, at your poll ? A. Yes, sir ; I have heard of it. 
 
 Q. In counting these tickets, are you sure Mr. Acklen's name was not on any of the 
 Republican tickets? A. Yes, sir; I am sure of that; his name was not on. 
 
 Q. Mr. Craig, it is claimed in this recount that instead of 394 Mr. Darrall re- 
 ceived only 86 votes at your poll. Could such a mistake have been possible ? A. It is 
 impossible, sir, from the very reason that the tickets were counted too careful by R. 
 Hebert, who was standing just behind me. Him and I looked over the tickets very 
 carefully, and there could not have been possibly such a mistake. 
 
 Q. Could it have been possible that instead of 115 votes Mr. Acklen had 340 votes 
 in your box ? Could such a mistake have been possible ? A. It is impossible, sir, to 
 my eye-sight. 
 
 Q. Is your eye-sight good? A. Perfectly good, sir.
 
 160 DIGEST OF ELECTION CASES. 
 
 Q. Could it have been possible, Mr. Craig, that there was 90 of those votes that had 
 no name on for Congress f A. No, sir; it could not have been possible. 
 
 Q. Mr. Craig, how would you account, then, for this difference between the vote as 
 you counted it, which was 394 for Darrall and 115 for Acklen, and the vote as claimed 
 in this recount ? How would you explain that? A. It would be impossible for me to 
 say Mr. Acklen was elected there by the Republican votes unless we were all blind. 
 
 POLL 5. The commissioners of election were Talbott. Buttrick, and 
 Coleman ; United States supervisors were Parker and Gourrier. All 
 testified. 
 
 Talbott, Democrat, a lawyer (p. 46) : 
 
 Q. Describe the manner in which the votes at that poll were counted. A. Well, the 
 straight Republican tickets and the straight Democratic tickets and the scratched 
 tickets were each placed separately in piles, a.nd the aggregate number of each was 
 put down on the tally-sheet. 
 
 Q. What was the color of the straight Republican tickets issued to the voters in 
 this parish ? A. I think it was dark color, sir. 
 
 Q. Did you after the election ascertain or hear the fact that some of those Repub- 
 lican tickets bore the name of J. H. Acklen for Congress instead of that of C. B. Dar- 
 rall T A. I could not say that I did. 
 
 Q. In the way that you counted those tickets, could the name of J. H. Acklen have 
 been on some of them without your seeing it! A. Well, yes, sir; that might possibly 
 have occurred. 
 
 Q. After you finished the count what did you do with the tickets? A. We placed 
 them in the box and sealed it. I do not think that the opening of the lock was sealed. 
 
 Gourrier, Democratic supervisor (p. 86) : 
 
 Q. Did you participate in the counting of the votes? A. No, sir; I just stood there 
 and saw them coming out. I did not examine any tickets nor count them. I helped 
 to make out the tally-sheets in advance of opening the box, and after they were run 
 up until they were no use I cast them aside. 
 
 Buttrick, Republican commissioner (pp. 238 and 240) : 
 
 Q. Did you see any Republican ticket on the day of election that did not have the 
 name of the Republican nominee upon it? A. No, sir. 
 
 Q. Did you see any previous to the day of election? A. I did. I saw a ticket the 
 day previous to the election. 
 
 Q. What kind of a ticket was that ? Did it resemble the regular Republican ticket ? 
 A. Exactly ; except Mr. Acklen's name was in place of Mr. Darrall's. 
 
 Q. Were any of those tickets distributed on the day of election to your knowledge ? 
 A. Not to my knowledge. 
 
 Q. Were any of them voted at the poll where you were the commissioner? A. No, 
 sir ; not at the poll at which I was a commissioner. 
 
 Q. In what manner were the votes counted by the commissioners of election? A. 
 They were taken from the box by Mr. Coleman, the Republican commissioner, passed 
 then to Mr. Talbert, who examined the tickets, saw that it was not scratched exam- 
 ined the face of the ticket and where the ticket showed straight it was laid in a pile 
 by itself, the straight Democratic and straight Republican tickets. They were then 
 counted ; then the scratched tickets were called off. 
 
 Q. Were these tickets carefully scrutinized as they were taken from the box? A. 
 By the two commissioners; not by myself, but by Messrs. Talbot and Coleman. 
 
 Q. Were they carefully scrutinized by the United States commissioners? A. One 
 of the commissioners. 
 
 Q. Which one? A. I can't give you his name. 
 
 Q. Mr. Parker? A. Yes, sir; Mr * Parker scrutinized the tickets. Mr. Gourrier, the 
 Democratic supervisor, and I laid off and made up the returns. 
 
 Q. Do yon remember the number of votes cast for member of Congress at that poll ? 
 A. I think it was 270. 
 
 Q. That was the total? A. The total was 270. 
 
 Q. Do you know how many was cast for each candidate? A. There was 63 votes 
 for Mr. Acklen and 207 for Mr. Darrall. 
 
 Q. Your official return shows that? A. Yea, sir; it does show that. 
 
 Q. Are yon satisfied that that return was correct in every particular? A. I am sat- 
 isfied. I swore to it. 
 
 Q. Could there have been any material mistake the way the tickets were counted? 
 A. I don't think there could have been any mistake at all ; certainly not material 
 .ike. 
 
 Q. Have you heard, or do you know, the result of the recount of the votes in that
 
 ACKLEN VS. DARK ALL. 161 
 
 box for member of Congress? A. I heard that it altered it very material; that it 
 made a material alteration. 
 
 Q. Could it have been possible, on the ballots as you counted them, there would be 
 only 79 votes cast for Mr. DarraU instead of '207? A. No, sir. 
 
 Q. Could it have been possible for Mr. Arklen'> name to have been on one hundred 
 and fifty-eight of those tickets instead of sixty-three* A. Impossible. 
 
 Croe 
 
 Q. I understand you to have stated that these tickets were taken out of the box by 
 Colemau : and they were handed to Talbert and scrutinized by him, and that you and 
 Mr. ("Juerrieiv laid off and made up the tally-sheets? A. Yes, sir. 
 
 <.). Under the circumstances could you have seen every name on every ticket that 
 was scrutinixed by Mr. Talbert? A. Certainly I did not see any of them. 
 
 Q. Had the name of J. H. Ackleu been on many of those tickets scrutinized by Mr. 
 Talbert, and as you did not see any of them, can you swear that such could not have 
 been the case withou" your knowledge ? A. Yes, sir; because I have complete knowl- 
 edge of Mr. Talbert and Mr. Colemau. I know that they are honest men and intelli- 
 gent. 
 
 Q. Yon swear purely as to their opinion of their honesty and not as to your knowl- 
 edge of the tickets? A. I did not see the tickets at the same time that I swore to the 
 returns. 
 
 Q. Then your swearing to the returns did not prevent the fact of the tickets having 
 had my name on for Congress instead of Dr. Darrall's being ceunted in an improper 
 manner? A. Yes, sir, it did. They were two gentlemen fully competent to do it, and 
 in whom I had confidence, that scanned the tickets. One was a Democrat and the 
 other a Republican ; pretty sure there was no cheating. 
 
 Q. You are prepared to swear to the returns as given to you by Mr. Talbert? A. 
 Yes, sir. 
 
 Q. Then you are prepared to swear to the returns upou Mr. Talbert's count and not 
 upon your count ? A. Yes, sir ; I am prepared to swear to the returns on Mr. Talbert's 
 count and Mr. Coleman's. 
 
 Q. Had Mr. Talbert afterward sworn that he did not scrutinize the tickets for the 
 Congressional nominee, and that that mistake could have occurred because he tabu- 
 lated the tickets in bulk, would you have been then willing to have sworn to the re- 
 turns without examining the tickets yourself? A. After seeing Mr. Talbert's scrutiny 
 I should very much doubt whether he would swear to anything of the kind, becausai 
 know that he examined the tickets very carefully and the face of the tickets. 
 
 Coleman, Republican coinmissiouer (p. 255:) 
 
 t,i. Did you assist in counting the votes as polled after the election? A. Yea, sir. 
 
 l v >. Did you carefully examine and scrutinize the ticket and every name on the tick- 
 et!' A. Yes. sir; 1 did. 
 
 Q. Who assisted you in making this scrutiny of the tickets? A. Mr. Parker first; 
 after Mr. Parker,then I and Mr. Talbert. 
 
 Q. Were these gentlemen also officers of the election? A. Yes, sir; they were. 
 
 (}. Then the three officers of the election scrutinized the tickets? A. Yes, sir. 
 
 (}. Would it not be utterly impossible for three commissioners of election, assisted 
 by two United States supervisors of election, all acting under oath, to have made any 
 material mistake in counting and compiling the vote? A. I don't think that many 
 men could make a mistake looking over one ticket ; there were three men examined 
 the ticket. 
 
 C^. At your poll were there three commissioners and two United States supervisors? 
 A. Yes, sir : there were. 
 -Q. Including yourself ? A. Yes, sir; including myself. 
 
 (.). Mr. Coleman, have you heard of the recount of the vote for member of Congress, 
 made at the request of Mr. Aeklen at the box where you were present? A. Yes, sir; 
 I have. 
 
 Q. Can you give the vote for the member of Congress at your poll, as you counted 
 them, assisted by the other commissioners, as near as you recollect ? A. To my 
 remembrance, as near as I can come at it, it is about two hundred and seven; that is 
 as near as my remembrance is. 
 
 Q. What was the vote of the other? A. Sixty-three, if I am not mistaken. 
 
 Q. Do you know or have you heard how many votes were given to each member of 
 Congress on the recount of your box? A. By the recount? No, sir: I cannot say 
 positively. 
 
 Q. It is claimed by the receiver of the votes at your poll that there was in the box 
 thirty-two tickets which did not have any name on them for Congress. Would or 
 would not the commissioners have discovered that fact in counting these blank votes? 
 A. They would, Mr. Darrall. 
 
 H. Mis. 58 11
 
 162 DIGEST OF ELECTION CASES. 
 
 Q. It is also claimed by the recount at this poll that Mr. Darrallonly received 79 
 votes instead of 207. Would such a mistake have been possible ? A. I don't think 
 it were possible. 
 
 Q. Did you seal the box before bringing it to the court-house ? A. Yes, sir. 
 
 Q. In what manner? A. I sealed it over the hole where the ballots were shoved 
 in. The key-hole I did not seal it. I sealed the ballot-hole, and delivered the box 
 to the constable. I kept the key until the box was delivered to the clerk of the 
 court ; then I delivered him tbe key. 
 
 Q. Were you assisted in sealing the box by the other commissioners ? A. Yes, sir ; 
 I was. 
 
 Q. Did you place any seal or any paper over the key-hole ? A. No, sir ; none at all. 
 
 Q. Mr. Coleman, how do you account for the difference between the votes as 
 counted by yourself and the commissioners at the poll and the votes counted in that 
 box on the recount f A. I don't exactly understand you. The only way that I see 
 it could have occurred, there was more tickets counted than was put in there. Be- 
 cause I am confident within myself that the other three officers were there with me r 
 and I don't think the mistake could have been made. The onliest way I see how it 
 could be, they were counted and put in afterward. 
 
 Q. From the manner in which those boxes were sealed and delivered to the clerk's- 
 office, could the box have been unlocked and the tickets changed at any time ? 
 A. Of course. 
 
 Cross: 
 
 Q. Now, Mr. Coleman, will yon please describe exactly how this count was made, 
 as you did not previously describe it carefully the count of the tickets f A. The 
 way them tickets was counted, I unlocked the box ; then I taken myself and Parker 
 taken the tickets out, and laying them all out straight on the barrel, the straight 
 Republican tickets all to themselves, and the straight Democratic tickets all to them- 
 selves, and the scratched tickets all to themselves, in separate piles ; then we taken 
 the straight Republican tickets, wrote each name down on the ticket carefully as we 
 could, and each name was given his complement of votes, his number of votes ; the 
 names was taken down as they were on the ticket, and were written down ; and the 
 Democratic tickets the same way ; and the scratched tickets was counted, and those 
 that were not scratched ; the name was taken down straight on the ticket, the names 
 written, and the complement of votes written down. 
 
 Q. Did you handle all the tickets yourself I A. Yes, sir. 
 
 Parker, Eepublican supervisor (pp. 258 and 259 :) 
 
 Q. Did you assist in counting the votes as polled, after the election ? A. Yes, sir. 
 
 Q. Did you examine and scrutinize each ticket, and the name on each ticket care- 
 fully ? A. Yes, sir ; I did, carefully. 
 
 Q. Who assisted you in making * this scrutiny of the tickets? A. There was Mr. 
 Colemau, Mr. Tolbert, and myself. 
 
 Q. Would it not be utterly impossible for three commissioners of election and two 
 United States supervisors of election, all acting under oath, to have made any mate- 
 rial mistake in counting and compiling the vote ? A. Yes, sir ; it would. 
 
 Q. Were there three commissioners and two United States supervisors at your poll, 
 including yourself f A. Yes, sir. 
 
 Q. Have you heard of the recount of the votes of that box (for Congressman) made 
 at the request of Mr. Acklen T A. Yes, sir; I have. 
 
 Q. Did this recount, as you understand, make any material change in the vote for 
 member of Congress? A. Yes, sir; it made a great deal of change. 
 
 Q. Give the number of votes, as near as you recollect, of each candidate for Con- 
 gress received at your poll ? A. Darrall 207, and Acklen 63. 
 
 Q. Do you know how many votes each candidate was accredited with on this re- 
 count ; have you heard or do you know ? A. No, sir; I have not heard. 
 
 Q. It is claimed by this recount that the vote for Congressman at poll 5 that there 
 were in the box thirty-two blank tickets for member of Congress. Would or not the 
 commissioners have discovered that fact in counting the votes, if such had been the 
 fact ? A. Yes, sir ; they would. 
 
 Q. It is also claimed on the recount at poll 5 that Mr. Darrall only received 79 votes 
 instead of 207. Would such a mistake have been possible ? A. No, sir ; it would 
 not. 
 
 Q. It is also claimed that Mr. Acklen received 158 votes instead of 63. As the 
 votes were counted and compiled, would such a mistake have been possible ? A. No, 
 sir. 
 
 Q. Mr. Parker, how do you account for the difference between the votes for mem- 
 ber of Congress as you and the other officers counted it on the day of the election, 
 and the vote according to this recount? A. It seems to me that there is something 
 \\rong about the ballots, the votes.
 
 ACKLEN VS. DARRALL. 163 
 
 Q. You mean there was something wrong when you counted them T A. No, sir ; 
 there was nothing wrong about them when I counted them ; they was wrong when 
 they were recounted. 
 
 Q. As you and the other commissioners counted them, could there have been any- 
 thing wrong without your seeing it? A. No, sir; there could not. 
 
 POLL 6. Wilson and Johnson, Republican commissioners, and Felix 
 Roth, Democratic commissioner, testified. 
 Felix Roth, Democrat (p. 55) : 
 
 Q. Did you count or assist in counting the votes there ? A. I did, sir'. 
 
 Q. Describe the way in which the votes were counted. A. The tickets were piled 
 in three different lots. 
 
 Q. What was the color of the straight Republican ticket issued in this parish ? A. 
 The Republican ticket had a black back similar to the one you are holding in your 
 hand. 
 
 Q. In the way in which those votes were counted could my name have been on some 
 of them without your seeing it ? A. It might have been, sir ; although I took a good 
 deal of precaution to look over it. 
 
 Q. You represented the Democratic party at that poll? A. Yes, sir. 
 
 Q. You certified the returns from that poll as being correct ? A. Yes, sir ; and it 
 was correct as far as I could do it, sir. The only thing I might have slipped wastha 
 name in this case. I had very little comfort and a great deal of difficulty. It was 
 one of the coldest nights that I ever saw in my life and I had no fire. That was the 
 only thing that might have happened ; errors might have happened. I do not pretend 
 to be correct in every ease : I tried to do justice to both parties. 
 
 Q. Did you take the tickets from the box ? A. Yes, sir. 
 
 Q. "Were they scrutinized by anybody else but you? A. Yes, sir; two others. I 
 appointed two others to keep the tally. 
 
 Thomas Johnson, Republican (p. 57) : 
 
 Q. Did you c'mut or help count the votes at that poll? A. Yes, sir. 
 
 Q. How did you take them out of the box ? A. I took them out of the box and gave 
 them to another person to call them out. Mr. Roth, the other commissioner, was there. 
 We then put them down in the tally-sheets. 
 
 Q. Did yon arrange them all in piles? A. Yes, sir ; the Republican tickets together. 
 We had two Republican tickets, the blue ticket and the black ticket, and then we 
 had the straight Democratic ticket. We counted each together. 
 
 Q. Did you after the election hear that J. H. Acklen's name was on some of the 
 Republican tickets? A. No, sir: I did not. 
 
 (,. What was tin- color of the Republican ticket? A. There wasone black one and 
 one blue one, and the Democratic ticket was a plain white one. 
 
 Q. After you finished the count what did you do with the tickets? A. Put them 
 in the box. 
 
 Q. Did you deliver the box to the clerk of the court yourself? A. No, sir; I did 
 not : I sent it by the supervisor of registration. 
 
 Q. What was his name? A. Mr. A. J. Barnes. 
 
 Cross-examined by Mr. JOLLEY : 
 
 Q. Were you a Republican commissioner ? A. Yes, sir ; I was nominated by the 
 Republicans here for commissioner. 
 
 Q. In looking over those rickets did you scrutinize them very carefully? A. I took 
 all my attention on those tickets. 
 
 (J. Yon certified to the returns as being correct? A, Yes, sir; as correct. 
 
 Ed. Wilson, Republican (p. 266) : 
 
 Q. Did you assist in counting the votes as polled, after the election? A. Yes, sir. 
 
 Q. Did you scrutinize and examine the tickets carefully? A. Yes, sir; I examined 
 all the tickers. 
 
 Q. Did you examine all the names on the tickets as yon took them from the box? 
 A. Yes, sir ; one at a time. 
 
 y. Did yon take all the tickets from the box yourself ? A. Yes, sir; I was the only 
 one. 
 
 Q. As you took each ticket out separately, did you examine it in the manner you 
 have spoken? A. Yes, sir. 
 
 Q. Was the count of the votes and the returns as certified to by yourself for mem- 
 ber of Congress correct in every particular? A. Yes, sir. 
 
 Q. Would it not have been impossible for three commissioners of election, assisted 
 by two United .States supervisors, all acting under oath, to have made any material 
 mistake in counting and compiling the votes? A. Yes, sir.
 
 164 DIGEST OF ELECTION CASES. 
 
 Q. Was there three commissioners and two United States supervisors at your 
 poll ! A. Yes. .-ir. 
 
 O. How many of those officers were Democrats? A. Three. 
 
 Q. Have you 'heard of the recount of th>- vote* at your poll for member of Congress, 
 made at the request of Mr. Acklent A. Yes. sir: I believe I heard about that. 
 
 Q. Can you give the number of votes polled for member of Congress at that, your 
 poll, actually <-a>t .A. X<>. sir. 
 
 Q. Or about the number ? A. They was all counted, and it was down on the tally. 
 
 Q* Did not Mr. Darrall receive a large majority of the votes cast ? A. Yes, sir. 
 
 Q. It is claimed by this recount of the votes that Mr. Acklen received a large ma- 
 jority. Could that have been possible, to have made a mtstake of that kind : could 
 it Lave been possible for you to make a mistake of that kind? A. No, sir. I could 
 not have made no mistake in counting the votes. 
 
 Q. You have said that you carefully scrutinized every ticket ? A. Every ticket 
 that came out of the box. 
 
 Q. Was Mr. Ackleu's name on any of the Republican tickets? A. No. sir. 
 
 Q. Not. one ? A. No, sir. 
 
 Q. Neither on the black nor the blue tickets? A. No. sir. 
 
 Q. In counting these votes, could it have been possible that the name of the candi- 
 date for Congress on one hundred and thirty-five tickets would be blank and you not 
 Bee it f A. No, sir. 
 
 .Q. And you can positively swear that you examined the names on every ticket ? 
 A." Yes, sir. I took them out one by one. 
 
 POLL 7. Le Blanc, commissioner, a Republican (called by contest- 
 ant), and Carville, Republican supervisor, testified: 
 Adonis Le Blanc (p. 58) : 
 
 Q. Did you count or help count the votes there ? A. I kept a tally. 
 
 Q. State how the votes were taken out of the box and assorted and counted. 
 A. So far as I paid attention they were taken by the handful and spread on the table, 
 and the Republican votes were put on one side and the Democratic votes on another. 
 If they got in with the Republican tickets they kept them until they got up to ten, 
 L believe, and they tallied them. So far as taking them out of the box is concerned, 
 they were taken out by the handful. 
 
 Q. You say you cannot identify the box! A. No, sir: I cannot. 
 
 Q. Were you a commissioner for the Republicans or for the Democrats ? A. For the 
 Republicans. 
 
 Q. Did you handle any of the tickets yourself? A. No, sir ; none of them. 
 
 Q. You certified to the returns from that poll? A. Yes, sir, so far as the counting 
 was concerned ; that is, from what Mr. Allian and Mr. Carville stated. 
 
 J. C. Carville (pp. 197-200), member of the legislature : 
 
 Q. Did you witness and scrutinize the counting of all the votes there ? A. Yes, sir. 
 
 Q. Did you haudle any of the tickets f A. No, sir ; I did not handle any of the 
 tickets at the count. I only examined them by looking at the commissioners as they 
 counted them. 
 
 Q. Looking over the shoulders of the commissioners f A. Yes, sir. I did not handle 
 any of the tickets. 
 
 Q. Did you see the returns made by the commissioners signed? A. I did. 
 
 Q. Were the returns certified to by all the commissioners as correct ? A. They were 
 certified to by the commissioners as correct. 
 
 Q. Are you satisfied that the count of the votes as made by the commissioners of 
 election and certified to by them was correct in every particular? A. As far as I 
 know anything about it, it was correct. I don't know anything to the contrary. 
 
 Q. Do you remember the number of votes Mr. Darrall received at that poll ? A. He 
 received 187, certified by commissioners. 
 
 Q. Do yon remember the number of votes cast for Mr. Acklen at that poll, his oppo- 
 nent ? A. It was 58 or 59, I think. I don't know which. Somewhere about that 
 neighborhood. Am not positive ; but it ranges in that neighborhood somewhere. 
 
 Q. Do you remember how many blank votes there were found in that box? A. Not 
 one. 
 
 Q. That is, for member of Congress T A. Yes, sir. 
 
 Q. You are positive of that ? A. Yes, sir. I never heard of any blank votes being 
 found there. I never heard of any such thing on all the day of election in counting 
 the ballots. 
 
 Q. Have yoti heard that that box, No. 7, has been reopened and recounted, and the 
 result of that recount f A. I have.
 
 ACKLEN VS. BARRALL. 165 
 
 Q. As the vote was recounted, it stands 96 for Darrall, 79 for Acklen, and 73 blanks. 
 Being present at that poll, having seen the votes counted, the returus made, do you 
 believe it possible that such a mistake could have been made by the commissioners of 
 election at that poll ? A. I don't know what about the commissioners ; but I don't 
 think that would have escaped my notice. As for the commissioners, I can't answer. 
 
 Q. Was it not generally conceded by both Democrats and Republicans that the vote 
 of Darrall and that of Acklen as certified to by the register of voters was correct ? A. 
 All, with one exception. The Democrats did not understand how Mr. Acklen got more 
 votes in the parish than the balance did, but otherwise it was satisfactory. 
 
 Q. Do you know how much more he got, and at what poll ? A. Well, I don't know 
 how many more he got. Poll No. 9, called Grosse Tett; poll 
 
 Q. Was that the only poll in which Mr. Acklen ran ahead of his ticket? A. Icould 
 not answer that ; I am not well enough posted. 
 
 Q. Mr. Carville, are you acquainted with the commissioners of election at poll 7 f 
 A. Yes, sir. 
 
 Q. What is their standing in the community F A. They stand very well. 
 
 Q. Honest, honorable men* A. Yes, sir; honest, honorable men. 
 
 Q. What is the educational qualification of those men ? A. They are all educated. 
 Julian Allen is a white man. a Democrat, lawyer; Adonis Le Blanc is a white man 
 also: lie has been a teacher in the parish for several years. The other man is a colored 
 man; reads and writes very well. 
 
 Q. What is the reputation of the Democratic commissioner as to prudence ? A. He 
 has a very high reputation of being a straightforward, honest man ; stands very well 
 iu the community he lives in. and respected by everybody. 
 
 Q. Is he prudent, careful, iu all his transactions? A. Very much so; very careful 
 man. 
 
 Q. Do you believe it possible that he. as a sworn officer of the law, could have been 
 so negligent a.s to have committed such an error? A. What do you want; simply my 
 opinion about it ? 
 
 Q. Yes. A. Well, I don't think he would acknowledge that himself. I can't answer 
 that in regard to myself, but, as to the commissioner, I don't think he would. 
 
 The foregoing testimony is iu reference to the five polls which alone 
 are iu contest, and shows the official count was carefully made. 
 
 LAW OF LOUISIANA FOR PRESERVATION OF BALLOTS. 
 
 SEC. 13. Be it further enacted, tfc., That it shall be the duty of the commissioners of 
 election at each poll or voting place to keep a list of the names of the persons voting 
 at such poll or voting place, which list shall be numbered from one to the end ; and 
 said lists of voters, with their names and numbers as aforesaid, shall be signed and 
 sworn to as correct by the commissioners immediately on closing of the polls, and 
 before leaving the place, and before opening the box. If no judge or justice of the 
 peace, or other person authorized to administer such oath, be present to do so, it may 
 fce administered by any voter. The votes shall be counted by the commissioners at 
 voting place immediately after closing the election and without moving the boxes- 
 froin the place where the votes were received, and the counting must be done in the 
 presence of any by-stander or citizen who may be present. Tally-lists shall be kept of 
 the count, and after the count the ballots counted shall be put back into the box and 
 preserved until after the next term of the criminal or district court, as the case may 
 be; and in the parishes, except Orleans, the commissioners of election, or any one of 
 them selected for that purpose, shall carry the box and deliver it to the clerk of the 
 district court, who shall preserve the same as above required; and in the parish of 
 Orleans the box shall be delivered to th clerk of the first district court for the parish 
 of Orleans, and be kept by him as above directed. (Act 9H, 1872, p. 174.) 
 
 The annexed certificate from the clerk of the district court shows that the first term 
 of court was held January I. and the said recount was not had till March, the ballots 
 only being legal evidence when counted before the term of court, as after that the 
 clerk is not responsible for safe keeping of either boxes or ballots. 
 
 Certificate of derk. (Page 178). 
 
 STATE OF LOUISIANA, 
 
 Parish of Iberrllle: 
 
 CLERK'S OFFICE, FIFTH JUDICIAL DISTRICT COURT. 
 
 I. Charles H. Gordon, clerk ot'the fifth judicial district court of Louisiana, in and 
 for the parish of Ibei viiie, do hereby certify that the first term of the said district court
 
 166 DIGEST OF ELECTION CASES. 
 
 for the present year was held in Iberville Parish oil Tuesday, the 2d day of January, 
 A. D. 1877, as the first Monday was the 1st and a dies non, his honor James L. Cole 
 presiding. 
 
 Witness my hand, officially, and the impress of the seal of said court, at the parish 
 of Iberville, this 8th day of May, A. D. 1877. 
 
 [SEAL.] C. H. GORDON, Clerk. 
 
 The boxes were not all delivered to the clerk of court, but some to the 
 supervisor of registration or his clerk, unauthorized parties. How long 
 they were in those hands is not shown. 
 
 Crowell, then clerk of court, says (p. 59) : 
 
 Q. After the election, did you receive all the boxes according to law * Were they 
 delivered by the commissioners? A. I received the chief part of them from the com- 
 missioners. I received two or three from the clerk of the registrar here, I believe. 
 By mistake they delivered them at his office instead of here. 
 
 The evidence shows that the box from poll 7 was thus delivered to 
 the register or his clerk instead of the clerk of court (p. 59), and box 
 from poll 6 by Barnes, an unauthorized party (pp. 55 and 94). 
 
 This law has not been complied with, as appears from the testimony 
 of the officers of election at the different polls, both Democrat and Re- 
 publican, and from the evidence of the custodian of the boxes, the clerk 
 of court. 
 
 HOW BOXES WERE SEALED AND HOW THEY WERE FOUND ON RECOUNT. 
 
 POLL 1. Box was properly sealed with sealing-wax. Seals were 
 found broken. 
 Amadee Roth, Democratic commissioner of that poll (p. 56) : 
 
 Q. Would you recognize the box T A. No, sir ; I do not believe I would. 
 
 (The box referred to by the witness was here produced by the clerk of the court for 
 identification. ) 
 
 Q. Is that your signature on that box ? A. Yes, sir. 
 
 Q. Is that the box ? A. I could not tell you whether it is the box, but that is my 
 signature. 
 
 Cross-examined by Mr. JOLLEY : 
 
 Q. Look at that box at the key-hole. Did you cover that up and sign it as you did 
 on the top T A. Yes, sir; I put "E. Roth" that is my name on top. 
 
 Q. The key-hole looks like the paper had been torn from it ? A. I could not tell 
 that. Of course it has not that same look as when I signed it. 
 
 POLL 6. Box was properly sealed with sealing-wax. Seals were 
 found broken. 
 
 Felix Roth, Democratic commissioner at that poll (p. 55) : 
 
 (The box referred to by the witness was here produced by the clerk of the court for 
 identification.) 
 
 Q. Is that the box ? A. Yes, sir ; that is my name there. 
 
 Q. Is it just as you delivered it to the justice? A. Yes, eir; that is it, but this 
 has been resealed. Of course it had to be opened once to count. 
 
 Q What were the names of the Republican commissioners with you at that poll ? 
 A. Johnson was one I do not know his first name and Wilson was the other. I do 
 not know his first name, either. His name is on the box. They were both Repub- 
 
 Cross-examined by Mr. JOLLEY : 
 
 Q. You say that box lias been resealed over the key -hole I A. Yes, sir; I suppose 
 it was, as far as my recollection serves me. 
 
 Q. Did you write your signature over the paper that was over the key-hole? A. 
 Yes, sir, I did; at least, as far ;is my recollection serves me, I must have done it. 
 
 Gordon, the clerk, and his deputy, admit seals broken, but explains 
 on account of dampness of office, 
 (lonlon, the clerk (p. 61):
 
 ACKLEN VS. DARRALL. 167 
 
 Q. Now, one of the witnesses noticed that over the key-hole of one box the paper 
 had been fractured. These boxes have been in your possession. How do you ac- 
 count for that ? A. Well, from the simple fact that anybody can come to this office 
 and examine these boxes and sit in the office, and all niy predecessors will tell you 
 that t'le office is very damp, and you can catch the pneumonia or anything else here. 
 For tins reason I say that the dampness has softened the wax in such a way that the 
 papers have become loose ; and I think it very likely, too, that in removing the 
 bojes from this place to that place I may have dented them in some way. Every 
 day I sweep up this office, and you will find that considerable dust accumulates, 
 aid very likely in dusting the box I might have knocked a hole in it, or at least in 
 tat- ) taper. 
 
 (The witness here produced a worn-out and dilapidated duster and exhibited it to 
 the judge and by-standers. ) 
 
 Landry, deputy clerk (p. 62) : 
 
 Q. Those boxes that have the papers broken on them were sealed with waxT A. 
 Well, I could not swear to that fact. I could only swear to them as I see them now, 
 that they are sealed with wax. I never examined the boxes to see what they were 
 sealed with when they first came in. 
 
 Q. Is not this court-house very damp ? A. Yes, sir ; I say that the dampness of the 
 office would affect the seals of the boxes if they are seaJed with mucilage. Now, I do 
 not know whether it could aifect the sealing-wax, but if the dampness does affect the 
 Baling-wax they would be affected in this office, because this office is very damp. 
 
 POLL 2. Was only sealed with paper and mucilage over the key- 
 hoe. 
 
 Hon. J. S. Davidson, United States supervisor (p. 249): 
 
 Q Did yon remain and witness the count of all the votes and the sealing of the 
 laoxu f A. Yes, sir. 
 
 Q.What was done with the box after they were all counted ? A. Close it up in the 
 box. The boxes were sealed. 
 
 Q. u what manner were the boxes sealed ? A. Sealed over the key-hole. 
 
 Q. Vith sealing-wax or what ? A. With mucilage. 
 
 Q. V'as any sealing-wax used ? A. With mucilage and over the key-hole where 
 the vt;es were put in also and the commissioners wrote their names over the hole 
 wherehe votes were deposited, on the paper that was put over the hole. 
 
 Q. Id they write their names over the paper across the key-hole T A. No, sir ; they 
 did no 
 
 Q. Mien the boxes were sealed in this way could the paper have been removed and 
 the ticets taken out and replaced with paper of the same kind placed over them T 
 A. Thacould have been done very handy, because there was no name over the key- 
 hole, al another paper of the same kind could have been put over without any 
 trouble 
 
 POL 7. Was only sealed with paper and mucilage ; no sealing-wax 
 used. 
 
 HoiiJ. C. Carville, United States supervisor (p. 197): 
 
 Q. Doou remember the manner in which the commissioners sealed the box after 
 the votewere counted and replaced in the box ? A. Yes, sir. 
 
 Q. No will you please describe ? A. The ballots were counted. After they were 
 counted ey were put back in the box. The commissioners were satisfied and the two 
 United Stes supervisors were also satisfied. 
 
 Q. ThUs, the Democratic and Republican f A. Yes, sir ; they were both satisfied. 
 As there is no dispute in regard to anything, we just simply put a piece of paper 
 with rnucige over the top where they put the ballot in, and then over the key-hole 
 another p,e of paper with mucilage ; did not seal it or put the name on it. 
 
 POLL Was sealed with wax on top, but nothing was placed over 
 key-hole 
 
 Talbot Democratic commissioner, poll 5 (p. 47): 
 
 Q. Afterm finished the count what did you do with the tickets ? A. We placed 
 them in t.box and sealed it. I do not think that the opening of the lock was 
 sealed. 
 
 Colem; Republican commissioner, poll 5 (p. 256) : 
 <J. Did yseal the box before bringing it to the court-house? A. Yes, sir.
 
 168 DIGEST OF ELECTION CASES. 
 
 Q. In -what manner ? A. I sealed it over the hole where the ballots was shoved in. 
 The key-hole, I did not seal it. I sealed the ballot-holt-, and delivered the box to the 
 constable. I kept the key until the box was delivered to the clerk of the co-art ; then 
 I delivered him the key. 
 
 Q. Were yon assisted in sealing the box by the other commissioners ? A. Yes, sir ; 
 I was. 
 
 Q. Did yon place any seal or any paper over the key-hole? A. No, sir ; none at all. 
 
 Q. From the manner in which those boxes were sealed and delivered to the clerk's 
 office, could the box have been unlocked and the tickets changed at any time f A. 
 Of course. 
 
 Parker, Kepublican, United States supervisor (p. 259) : 
 
 Q. What did yon do with the ballots after counting them ? A. Put them in the box 
 and sealed the ballot-hole. 
 
 Q. On top of the box ? A. Yes, sir. 
 
 Q. How was it sealed ? A. It was crossed with wax and burned so it would stick* 
 
 Q. Did the commissioners sign their names on it? A. Yes, sir; they did. 
 
 Q. Did yon si^u your name on it ? A. No, sir. 
 
 Q. Only the State officers signed their names? A. Yes, sir. 
 
 Q. How did you seal the key-hole ? A. We didn't seal the key-hole at all. 
 
 Q. Did you place anything over the key-hole? A. No, sir; they did not. 
 
 FROM WHOM THE BALLOT-BOXES WERE RECEIVED AND HOW KFPT 
 BY THE CLERK OF COURT. 
 
 Crowell, clerk of court when election was held (pp. 59, 60) : 
 
 Q. After the election did yon receive all the boxes according to law ? Werethey 
 delivered by the commissioners? A. I received the chief part of them from thecorn- 
 missioners. I received two or three from the clerk of the registrar here, I b^ieve.. 
 By mistake they delivered them at his office instead of here. 
 
 Q. Have the boxes since you have received them been in your sole possessio; up to> 
 the time of your delivering" them to your successor ? A. Yes, sir. 
 
 (The clerk here brought in the box from poll No. 7. ) 
 
 Q. Mr. Adonis Le Blanc said that he could not distinctly testify as to that bo. Can 
 you swear that that was the box delivered to yon from that poll, as clerk of thcourt f 
 A. I know that it is, and the reason is that I observed that they did nofcomply 
 with the law in regard to putting the names on it. This box came from Ddoude's 
 office to this office. 
 
 Q. Does everybody have access through this door during the day ? A. Te boxes 
 were deposited here in the clerk's office whilst I was clerk, and I had theuviled up 
 here. 
 
 Q. Are all these windows closed every night ? A. Yes, sir ; it is the clerk'duty to- 
 do it. 
 
 Q. You carried the key of the office while yon were clerk? A. Yes, sir. 
 
 Ql As there are no other papers on that box from poll No. 7, how do you fentify it 
 from the others ? A. That is what I observed on the box, and that is the ^y I iden- 
 tify it now. I remember it as coming from poll No. 7. 
 
 Q. But you do not know whether these papers were on it OT not? A. r iat is the 
 way I identify it. J noticed they had not complied with the law. 
 
 Gordon, elected clerk, Acklen's witness (pp. 60, 61) : 
 
 Q. Yon are at present clerk of the parish court ? A. Yes, sir. 
 
 Q. You are at present in custody of the ballot-boxes in this court? A. fis, sir. 
 
 Q. Who delivered them to you ? A. My predecessor, Judge Crowell. j 
 
 Q. Have those boxes been in your sole possession ever since they were iivered to 
 you up to the present time? A. Yes, sir. 
 
 Q. Can you swear positively, beyond all question, that to the best of lir knowl- 
 edge these boxes have been safely in your keeping up tothe present time ?4. Yes, sir- 
 
 Q. Are the fastenings of the clerk's office here secure ? A. Yes, sir. .Jays when 
 we go away from here at night we fasten these windows on the outsuKaiid when 
 they slam to they cannot be opened from the outside at all. 
 
 Q. If there had been any entrance made into the building during your sence from 
 it could you have detected it ? A. Yes, sir ; they would have had to I jk the lock 
 or pulled out the wedge from the fastenings of the windows. I am hejluring the 
 day all the time. 
 
 Q. One of the witnesses testified that he did not remember a certain 
 did not have hie signature on it. You have examine.! the box, and the 
 
 because it 
 has tes-
 
 AOKLEN VS. DARRALL. 169 
 
 tifiedthat that was the box delivered to him and that it was iii the same condition iii 
 which it was delivered by the witness. Is that the box that he delivered over to you?' 
 [Shown box already produced by the clerk.] A. That is the same box that was de- 
 livered to me by my predecessor 
 
 Q. Is it in the same condition in which you received it ? A. Yes, sir. 
 
 Q. Now, one of the witnesses noticed that over the key-hole of one box the paper 
 had been fractured. These boxes have been in your possession. How do you account 
 for that * A. Well, from the simple, fact that anybody can come to this office and ex- 
 amine these boxes and sit in the office, and all my predecessors will tell you that the 
 office is very damp and you can catch the pneumonia or anything else here. For this 
 reason I say that the dampness lias softened the wax in such a way that the papers 
 have become loose ; and I think it very likely, too. that in removing the boxes from this 
 place to that place I may have dented Them in some way. Every day I sweep up this 
 office, and you will find that considerable dust accumulates, and very likely in dusting 
 the box I might have knocked a hole in it, or at least in the paper. 
 
 [The witmss here produced a worn-out and dilapidated duster and exhibited it to 
 the judge and the bystanders.] 
 
 Q. Is uot that a very poor brush ? A. Yes, sir. 
 
 Q. Everything is nearly worn off, except the stick part of it, is it not T A. Yes, sir ;. 
 nearly everything. 
 
 Q. These boxes have been moved several times, have they not ? A. Yes, sir. That 
 table there used to run right alongside this window, and I took them away from there 
 and put them underneath to give me room. Then afterwards we changed them around 
 so that we could open the blinds, and I put them where they are now. 
 
 Q. That is the only box that shows any fracture of the papers on it, and you account 
 for that through the inoVing of the boxes or some carelessness or something of that 
 kind? A. Yes, sir; carelessness on my part in moving them. 
 
 Q. Have you the keys of all these boxes? A. Yes, sir; they are in my possession in, 
 the office somewhere, but I would have to look for them. 
 
 Q. Do you know where they are now ? A. No, sir ; but they are in the office. 
 
 Q. They are in some of the pigeon-holes ? A. They are inside of the desk, I guess. 
 
 Q. You' do not carry them with you at all ? A. No, sir. 
 
 Landry, deputy clerk, Democrat (p. 62): 
 
 Q. You see the boxes every day or two ? A. Yes, sir. 
 
 Q. If they had been tampered with overnight or at any time would that fact have 
 been noticed by you, do you think? A. Yes, sir; so far as I know, the boxes have 
 never been tampered with, so far as taking any papers out or adding any papers to 
 them or anything of that kind 
 
 Q. Is this court-house not very damp ? A. Yes, sir ; I say that the dampness of the 
 office would affect the seals of the boxes if they are sealed with mucilage. Now, I do- 
 not know whether it could affect the sealing-wax, but if the dampness does affect the 
 sealing-wax they would be affected in this office, because this office is very damp. 
 
 Q. Have not those boxes been removed several times ? A. They were moved twice 
 to my knowledge. 
 
 Q, Is it not possible that some of those papers on the boxes and some of the wax 
 might have been loosened by the moving of those boxes ? A. Yes, sir ; on account of 
 the dampness, which might have unglued some of the paper on them. In moving them 
 some of the papers might have dropped off, for all I know. You will find even now 
 that some of them are very loose. 
 
 Cross-examined by Mr. JOLLEY: 
 
 Q. Those boxes that have the papers broken on them were sealed with wax ? A. 
 Well, I could not swear to that fact. I could only swear to them as I see them now, 
 that they are sealed with wax. I never examined the boxes to see what they were 
 sealed with when they first came in. 
 
 Q. Did you ever examine those boxes before to-day as carefully as you have uo\v 
 since you have been here as deputy clerk ? A. Well, I cannot say that I examined all 
 of them carefully. I examined some of them the other day. The clerk, in order to- 
 make more room, moved them the other day and corded them as you see them there, 
 and I remarked that some of them seemed to be loose. I did not pay attention which 
 boxes particularly were loose or not, but I noticed that some of the labels were en- 
 tirely unglued. 
 
 THE LAW OF LOUISIANA AS TO THE APPOINTMENT OF OFFICERS OP 
 
 ELECTION. 
 
 The statute of Louisiana makes the following provision : 
 
 SEC. 8. He it further enacted, fc., That tie election at each poll or voting place shall
 
 170 DIGEST OF ELECTION CASES. 
 
 be presided over by three commissioners of election, residents of the parish for at least 
 twelve months next preceding the day of election, who shall Deselected from difterent 
 political parties, and be of good standing in the party to which they belong, and who 
 shall, before entering upon the discharge of their duties, take and subscribe the oath 
 prescribed for State officers. Should only one of the commissioners appointed be pres- 
 ent at the hour for opening the poll, he shall appoint another, and both together shall 
 appoint a third, and the commissioners so appointed shall take the oath and perform 
 all the duties of commissioners of election in the same manner as if they had been 
 appointed as provided for regular appointment of commissioners by this act. Any one 
 of the commissioners shall be authorized to administer the oath to the other commis- 
 sioners. 
 
 This law was carefully complied with, as appears from the following 
 testimony. It will be noticed that selections were made from both 
 political parties ; that those selections were made on the recommenda- 
 tion of the president of the parish committees of the two parties re- 
 spectively. It is to be presumed that the men thus recommended and 
 selected would be men whom the respective parties had confidence in 
 and felt they could rely upon to see that the utmost fairness prevailed 
 in the voting and in the counting of the votes. But, in addition to this 
 presumption, we have the testimony directly showing that they were 
 fit and competent men. 
 
 F. Y. Deslonde, Eepublican, parish supervisor (pp. 204 and 206) : 
 
 Question. Mr. Deslonde, upon whose recommendation did you appoint the commis- 
 sioners of election? Answer. Of the chairman of the Democratic committee and a 
 member of the Republican or the president of the Republican committee. 
 
 Q. State who was the president of the Republican parish committee. A. I be- 
 lieve it was P. G. Deslonde. 
 
 Q. Who was the president of the Democratic parish committee ? A. Jacob Me Will- 
 iams. 
 
 Q. Did yon request in writing the chairman of the Republican committee to furnish 
 you names of commissioners ? A. Yes, sir ; I did. 
 
 Q. Did you make the same request in writing to the chairman of the Democratic 
 committee ? A. I did. 
 
 Q. Did they furnish you the names of the various commissioners of the polls? A. 
 They did. 
 
 Q. Did you know the commissioners at poll 5, in the third ward ? A. Mr. Tolbert 
 was one. 
 
 Q. What was the number of the commissioners at that poll? A. I recollect two; 
 Mr. Tolbert on the Democratic side and George Buttrick on the Republican side. 
 
 Q. Were they all competent men ? A. They was. 
 
 Q. Did you consider, as far as you know or are acquainted, that the commissioners 
 of election at all of these difterent polls were competent, intelligent men to perform the 
 duties of the office ? A. They was. 
 
 Q. What was the vote of the Grosse T6te poll? A. That is the only box that went 
 against Dr. Darrall as returned, because it is the closest, and Dr. Darrall had one hun- 
 dred and odd votes and Mr. Acklen two hundred and odd votes. 
 
 Q. Mr. Deslonde, you made your consolidated return from the returns as given you 
 by the commissioners of election ? A. Yes, sir. 
 
 Q. You then swore to the correctness of your returns as based upon the returns as 
 made by the commissioners ? A. Yes, sir ; I swore each one of them after they made 
 their returns to me, and then I go to the clerk of the court and swear to my consoli- 
 dated returns. 
 
 Hon. George Wailes, Democratic candidate for senate (pp. 116, 117, 
 118): 
 
 Q. You were the regular nominee of the Democratic party for senator from this dis- 
 trict, were you not ? A. Yes, sir. 
 
 Q. Were you a member of the Democratic parish executive committee ? A. No, sir ; 
 I was not. 
 
 Q. Did the Democratic party have a representative at each poll in the parish ? A. 
 Well, I was present only at this poll, but I suppose they did. I have no doubt that 
 they did have, and in. fact it was understood that they did have. 
 
 Q. Was not a Democratic commissioner appointed by the .registrar for each poll in 
 the parish ? A. I believe so, sir. 
 
 Q. Was not a Democratic United States supervisor appointed for each poll in the
 
 ACKLEN VS. DARRALL. 171 
 
 parish i A. Well, I cannot tell you that. I presume so, but I do not know that there 
 was. 
 
 Q. Was it generally known to the Democratic party of this parish that Mr. Wharton 
 was supporting Mr. Acklen previous to the election ? A. Yes, sir ; I think it was gen- 
 erally known. The fact is that the question was discussed in the Democratic party 
 in this parish as to whether or not they would run a candidate for the senate. Some 
 gentlemen of the party were in favor of making no nomination at all, and of casting 
 the vote for Wharton, or allowing the vote to be split up, thinking that we could ac- 
 complish something by that ; but the party in convention determined differently. 
 They, Therefore, nominated me and brought me out two days before the election. I 
 was not announced as a candidate until my name appeared upon the tickets. 
 
 Q. Did the leading Democrats of the parish know that Mr. \cklen's name was on 
 the regular Republican ticket for Congress? A. I think they did, sir. 
 
 Q. Then it was generally known by the party in that parish that his name was 
 printed on the regular Republican ticket? A. Well, it was generally known that his 
 name was on the ticket that we considered as the regular Republican ticket. We 
 knew that there were Republican tickets upon which his name did not appear, though. 
 
 Q. They knew, of course, that Mr. Darrall's name was on the ticket also, and that 
 he was the regular nominee of the Republican party for Congress ? A. Yes, sir. 
 
 Q. They knew also that there was a regular Republican ticket in existence with the 
 Congressman's name left in blank ? A. Yes, sir ; they kaew that also ; it was a Re- 
 publican ticket in all respects, except that there was a blank left for the Congress- 
 man ; it contained the names of the Republican electors and the candidates for the 
 State otticcs, and so on. 
 
 Q. Were not the Democratic commissioners at the different polls competent and 
 energetic men ? A. Well, I do not recollect who the commissioners were. The com- 
 missioners at the poll in this place were competent and intelligent men. 
 
 Q. Do yon know Mr. Edward Talbot ? A. Yes, sir. 
 
 Q. Is he a competent man, and was he an energetic supporter of the Democratic 
 party .' A. Yes, sir. 
 
 Q. Do you know Mr. Gourrier ? A. Yes, sir. 
 
 Q. He was a strong supporter of the Democratic party, was he not ? A. Yes, sir; 
 I think so. 
 
 Q. Both of those gentlemen were supporters of Mr. Acklen ? A. Yes, sir ; as far as 
 I knew, they were. 
 
 Q. ]>o you know Mr. Julian Allain? A. Yes, sir. 
 
 Q. Is he a strong supporter of the Democratic party? A. Yes, sir; he is a Demo- 
 crat. He has since removed from this parish. I think he was always considered to be 
 a consistent Democrat. ' 
 
 Q. Is he a competent man ? A. O, yes, sir. 
 
 Q. Do you know Felix Roux ? A. Yes, sir. 
 
 Q. Is he a representative of the Democratic party ? A. He is a Democrat, sir. 
 
 Q. IK he a competent man ? A. I think he is competent to fill the place of commis- 
 sioner. 
 
 Q. Do you know William A. Smith ? A. Yes, sir. 
 
 Q. What are his politics ? A. I think he is a Democrat, although he voted for some 
 of the Republican officers in this parish some of the candidates for parochial offices. 
 
 Q. Was he a supporter of Mr. Acklen for Congress? A. I presume he was, but I 
 do not know it. 
 
 Q. Is he a competent man for commissioner T A. Well, he is not a very active man, 
 sir; I think he is a little slow. He does not write very well. He is a very honest 
 gentleman and stands very high in the community. His education is not the very 
 best. 
 
 (,. He reads well ? A. I think he does; yes, sir. 
 
 Q. He reads well enough to discover the name of Mr. Acklen on the Republican 
 ticket by examining it? A. Yes, sir; no doubt of that. 
 
 Q. Do you know r Mr. Amade'e Roux ? A. Yes, sir. 
 
 Q. Was he a competent commissioner ? A. I believe so. 
 
 Q. Was he a Democrat ? A. Yes, sir ; I believe so. 
 
 Q. Do you think these different gentlemen whom I have named, and whom you say 
 you know, would have allowed anything wrong tooccur in any way duringthe count- 
 ing of the votes? A. I do not think they would, sir; not one of them. 
 
 Q. Do you think they would have been diligent in examining the ballots to see that 
 nothing wrong occurred in the count ing? A. Well, I presume they would have been. 
 I do not know what they actually did do, except at this poll here. 
 
 Q. Do you think that they would certify and swear to a return without knowing of 
 their own knowledge that it was correct ? A. I do not think they would certify and 
 swear to a return unless thev believed it to be correct.
 
 172 DIGEST OF ELECTION CASES. 
 
 DISTRIBUTION OF REPUBLICAN TICKETS WITH CONTESTANT'S NAME 1 
 
 ON THEM. 
 
 Contestant attempts to strengthen his claim that there was a mistake 
 in the official count by trying to prove that Republican tickets were 
 printed ami distributed with contestant's name on them. 
 
 That such tickets were printed is proven : that they were carried into 
 the parish in question is also proven ; and that they were attempted to 
 be gotten into the hands of the voters and the voters to be cheated by 
 means of them is also quite clear, but it is equally clear that they were 
 not distributed to the voters to any considerable extent. 
 
 This fraud on the voters was attempted to be perpetrated by \V. W. 
 Whartou, and, as will be seen by the subjoined testimony, he brought 
 the tickets from New Orleans in bulk, and distributed them in bulk to 
 the persons named, for use at the different polls. That they were not 
 distributed to the voters, and that they were in some cases destroyed, 
 appears from testimony below. It is shown by Whartou (witness for 
 contestant) that he delivered the tickets for distribution at polls 1 and 
 2, to Hon. J. S. Davidson, to George Deslonde, to James H. Tate, and 
 a man (name not known) sent by Davidson for tickets. (See Whar- 
 ton's evidence, pp. 122 and 126.) 
 
 Q. To \vhom did yon give tickets to distribute in the first ward f A. Deslonde, 
 Davidson, Tate, and some one else who was up here with them. A strong friend of 
 miue down there came up for some. I forget his name now. I sent some by Mr. Tate 
 and by some one else that Davidson sent here from Bayou Goula to get some tickets. 
 
 Q. Was not that man's name Handy? A. I forget his name now. 
 
 This is all the evidence the contestant offers as to distribution of 
 tickets at these two polls. Davidson testifies as follows (pp. 248 and 
 249): 
 
 Q. Did you take the tickets to your ward? A. I took them down there. 
 
 Q. Where did you get these tickets, and of whom ? A. I-got the tickets from Major 
 Wharton well, about sunset, at his room. I went to get tickets on Monday, the day 
 previous to the election, and we were detained there all day, because the tickets were 
 not ready, and about sunset we went into the room where the tickets was. Mr. 
 Wharton told us the tickets were ready. He had the tickets all bundled up in bun- 
 dles. He asked me if I would distribute some Republican tickets with Mr. Acklen's 
 name on them. I told him no. He said, "Why I" I said, because I was a man ; that 
 ie, when I wanted to beat a man, I wanted to be honest about it. That if I wanted 
 to beat Mr. Darrall I wanted to be honest about it. I wanted to take one stand. He- 
 insisted on me to take the tickets down. I told him no, I did not want to distribute- 
 them or to have anything to do with them. After he insisted on me to take them I 
 took the tickets. He had the tickets all bundled up. I asked him how many ticket* 
 there were there. He said two thousand, and then I said, " Give them to me, 1 ' and 
 he gave them to me ; and after looking into them, I think, perhaps that there were 
 two thousand. I did not know how many of these Acklen tickets there were in then-. 
 I did not know how many there might be among them ; consequently I told him to- 
 give me two thousand five hundred tickets, and he gave them to me and Mr. Whita- 
 ker, another gentleman who was along with me, and was"oue of the marshals to take 
 charge of the bo?. I came out and stated to him I told him of what proposition 
 that had been made to me; that is, that the senator asked me to distribute these 
 tickets in this manner, and I told him I didn't thiiik it was right. He said, "Come 
 down to my room, and we will scrutinize these tickets," and we went down to hia 
 room about 7 or half past 7, on the Bayou Goula, and me and Mr. Whituker stopped 
 there, and there we examined these tickets. In examining these tickets I found that 
 there was about a thousand of the Republican tickets with Mr. Ackleu's name on 
 them. I took them out, me and Mr. Whitaker, and put them aside. We put the bal- 
 ance of the tickets into the box, and he took them down to his room, about a couple 
 of acres away from where I reside. 
 
 Q. The other tickets that were left in the box, what kind of tickets were they that 
 you put in the box ; the fifteen hundred that Mr. Whitaker took i A. The straight 
 Republican tickets. 
 
 Q. What became of those tickets then ? When did you begin distributing them? 
 A. In the morning, just after the polls opened.
 
 ACKLEN VS. DARRALL. 173 
 
 Q. Did you distribute any of the tickets with Mr. Acklen's name ? A. No, sir ; I had 
 them ;>t my room. 
 
 <. t >. Were they Taken out of your room ? A. No, sir. 
 
 Q. WliaT finally l>er;une of tr.* 'A. I burned them up. 
 
 <,. Did you Imru up all of them ? A. I burned all of them that came down with 
 me; all of the thousand tickets. 
 
 Q. Who distributed tii-kt-rs ou the morning of the election beside yourself and Mr. 
 Whitaker, or did you distribute all the tickets ? A. I distributed the tickets to men 
 there who gave them out to other men. I distributed them to men who could read 
 aud write. 
 
 Q. How was there more than one poll in that ward, Mr. Davidson f A. There were 
 two. 
 
 Q. Whar was the other poll in the ward : do you know ? A. No. 1 ; the one that I 
 Lave been referring To is No. ~2. 
 
 Q. Where was the poll No. 1 at ? A. At Adams's plantation. 
 
 Q. Did you also send the tickets, the Republican tickets, to that poll? A. I took 
 them there ; yes, sir. 
 
 Q. Did you take them there? A. I did. 
 
 Q. In what hands did you place them for distribution? A. In Mr. E. Verrett's. 
 
 Q. What kind of tickets did you give Mr. Verrett for distribution at that poll ? A. 
 The straight Republican ticket. 
 
 Q. D<> you remember about the number that you gave him? A. I gave him five 
 hundred. 
 
 <}. Did you send him anymore tickets than five hundred that you gave him. for that 
 poll? A. Yes, sir. I wrote to Major Wharton for them. 
 
 Q. How many of these tickets did you send him ? A. I sent him five hundred more 
 by an open note the next morning. The gentleman who I sent with them brought 
 them, aud on examining them I found they were printed blank for member of Con- 
 gress. I took them down then and I gave them to Mr. Verrett, and told him not to 
 distribute more than one ticket at a time of the straight tickets, so if they had enough 
 he would not have to use these blank tickets; but whether he used any of them or not 
 I am n< 't able to say. 
 
 <.). Was Mr. Verrett an officer at that poll? A. Yes; United States supervisor. 
 
 Q. Did you tell him about these Acklen tickets being in existence? A. Yes, sir. 
 
 Q. Did you give him any warning in regard to them? A. I did. 
 
 (,>. ri> :> slate ir. A. I Told him There was such tickets, Republican tickets with 
 Acklen's name on it, but 1 was satisfied there was none of them in that package I gave 
 him, and to be particular about distributing them, because there might not be enough. 
 I told him to be careful about distributing them. I reiterated to him. that if there was 
 not enough of these straight Republican tickets he would have to use these blanks. 
 
 Q. Then after giving Mr. Verrett three hundred of the straight Republican tickets 
 you had about one thousand left for your poll? A. Yes, sir. 
 
 Q. W'-re these enough for distribution at this poll? A. More than enough. 
 
 Desloude testifies (p. 201) that he did not receive any of these bogus 
 tickets from Whartou and distributed none. 
 
 Tate (p. 57) testifies that he saw tickets at poll 1 with no name on for 
 Congress. These were the tickets taken by Davidson in the second 
 package aud given Verrett, 80 of which blank tickets were shown to 
 have been voted by the returns of the commissioners at that poll. 
 This appears in the count upon which Darrall's certificate was issued. 
 
 The evidence is conclusive that none of the bogus tickets with 
 Acklen's name on were in circulation or voted at these two polls, and 
 yet it is claimed by the contestant that according to his recount there 
 were voted at poll 1, i06 of the spurious Republican tickets, and at poll 
 2, 226. which were not discovered in making the official count. And 
 this preposterous claim is set up in face of the above facts, as well as of 
 the extreme care with which it is shown by the evidence of both Demo- 
 cratic and Republican officer? of election the ballots at these polls were 
 counted. 
 
 Also let it be noticed that of all the witnesses who were examined 
 regarding these two polls not one is found to say he voted one of the 
 tickets with Acklen's name on. 
 
 Wharton further says (p. 196) that he gave the tickets for poll 7 to 
 Carville.
 
 174 DIGEST OF ELECTION CASES. 
 
 Hon. J. C. Carville, a member of the legislature, testifies fully on this 
 point (p. 196) : 
 
 Q. Did you distribute the Republican tickets in your ward ? A. I did. 
 
 Q. Did you take all the Republican tickets to your ward and distribute tln-n- ! A. 
 I took all to my ward and distributed thorn. 
 
 Q. To no other ward except your own ? A. None, only niy own ward. 
 
 Q. What ward is that ? A. Ward No. 5, poll 7. 
 
 Q. Were the tickets tnus distributed the straight Republican ticket with the name 
 of the regular nominee for Congress upon them ? A. They were. 
 
 Q. What was the color of the ticket ? A. We had two ; one was with a red tace, and 
 we had another ticker with a black back or a glaze back inclined to be black. 
 
 Q. Were there any tickets distributed at your poll or in circulation, and voted by 
 Republicans, except the straight Republican ticket having the name of the regular 
 nominee for Congress on it T A. I knew of none, or none distributed. 
 
 Q. And you distributed all the tickets yourself f A. Yes, sir. 
 
 Various witnesses are examined by contestant, who say vaguely they 
 sent tickets with Acklen's name on to this poll, but it is not shown that 
 any of such tickets were taken there. Xeither is it attempted to be 
 proven that a single one of these bogus tickets, either with Acklen's 
 name on or blank, were voted, or even seen at that poll. 
 
 In face of these facts, contestant claims by his recount that 21 of the 
 Acklen tickets and 73 blanks were voted which were not discovered in 
 making the official count. 
 
 The evidence above given is conclusive, and not contradicted, that 
 none of the tickets with Acklen's name on were distributed at either 
 of these three polls. Verrett distributed, as was said, blank tickets at 
 poll 1, and some of them are shown by the official count to have been 
 voted. 
 
 The fact that the official count discloses that the officers of election 
 discovered these blank tickets in making that official count is conclu- 
 sive that the officers of election carefully examined the tickets in 
 making the count, and leaves no room for doubt that if Republican 
 tickets had been voted with Acklen's name on them, they would have 
 been discovered. 
 
 Now, in the first place, we have here the spectacle of the contestant 
 seeking a seat in the House by reason of a fraud attempted to be per- 
 petrated upon the voters of that parish. This fraud thus attempted to 
 be perpetrated upon the voters of that parish is what is relied upon by 
 the contestant to secure this seat. His evidence is largely directed to 
 proving that this fraud was successfully perpetrated by getting the 
 voters to deposit these spurious tickets. The contestant's case is there- 
 fore one not to be looked upon with favor. 
 
 But the evidence shows that the perpetration of this fraud was not 
 accomplished. The officers of election were selected from both parties, 
 as the law requires ; bogus tickets were not distributed or voted. 
 
 In addition to this the testimony proves that the existence of these 
 tickets was known before the election. 
 
 Hon. George Wailes, Democratic candidate for senate, testifies (p. 117) : 
 
 Q. Did the leading Democrats of the parish know that Mr. Acklen's name was on 
 the regular Republican ticket for Congress f A. I think they did, sir. 
 
 Q. Then it was generally known by the party in that parish that his name was 
 printed on the regular Republican ticket? A. Well, it was generally known that his 
 name was on the ticket that we considered as the regular Republican ticket. We 
 knew that there were Republican tickets upon which Lis name did not appear. 
 
 George Buttrick (p. 238) testifies : 
 
 Q. Did you see any Republican ticket on the day of election that did not have the 
 name of the Republican nominee upon it T A. No, sir. 
 
 Q. Did you see any previous to the day of election T A. I did. I saw a ticket the 
 day previous to the election.
 
 ACKLEN VS. DARRALL. 175 
 
 Q. What kind of a ticket was that? Did it resemble the regular Republican ticket? 
 A. Exactly ; except that Mr. Acklen's name was in place of Mr. Darrall's. 
 
 Q. Where did you see this Republican ticket with Acklen's name ? A. The day be- 
 fore the election I saw it in the office of the Iberville South, a Democratic newspaper. 
 
 Q. Did you see more than the one ticket at any time before the election or on the 
 day of election ? A. That is the only one that I seen. 
 
 As has already appeared in the evidence before quoted, Davidson,. 
 Carville, and others knew, of the existence of these tickets. 
 
 Then there is the fact that Democrats and Republicans were officers 
 at these polls, selected upon recommendation of the parties respectively, 
 as above shown ; then there is the additional fact that the official count 
 was carefully made. IS^ow, in the face of the fact that these tickets 
 were known to be in existence ; that they were gotten up for the pur- 
 pose of defeating Darrall; that both Democrats and Republicans knew 
 of all this, we are asked to believe that a large number of them were 
 voted, and yet no one of these Democratic officials discovered, in mak- 
 ing the count, that the name of Acklen was on them instead of that of, 
 Darrall. 
 
 We are asked to believe that in making the official count mistakes 
 were made at these five polling-places which we have been considering, 
 such as are indicated by the two columns following. 
 
 Official count, page 280 : 
 
 For the Forty-fifth Congress, third Congressional district. 
 
 Number of polls. 
 
 
 d 
 
 M 
 
 t-s 
 
 
 1 
 
 No. of votes. 
 218 
 
 No. of votes. 
 44 
 
 2 
 
 394 
 
 115- 
 
 5 
 
 207 
 
 63 
 
 6 
 
 301 
 
 156 
 
 7 
 
 187 
 
 58 
 
 
 
 
 Total 
 
 1 307 
 
 436 
 
 
 
 
 Eecount (p. 13) of same polls : 
 
 Poll. 
 
 8 
 
 i 
 
 < 
 
 
 
 1 
 
 No. of votes. 
 150 
 
 No. of votes. 
 139 
 
 2 
 
 340 
 
 86 
 
 5 
 
 158 
 
 79 
 
 6 . ... 
 
 228 
 
 99 
 
 7 , 
 
 79 
 
 96 
 
 
 
 
 Total 955 | 499 
 
 Thai is to say (taking for example poll 1), we are asked to believe 
 that these Democratic officials stood by and saw tickets counted for 
 Darrall to the number of 218, when there were only 150 that had his 
 name on them, and that there were 139 with the name of Acklen on 
 them, when only 44 were counted for him. This is simply preposter- 
 ous. Such a mistake, in the nature of things, could not have occurred ; 
 for it is admitting that of 1,307 votes counted for Darrall 808 of them 
 were not for him, and no one noticed it, although Democrats and Re- 
 publicans were both counting and watching.
 
 176 DIGEST OF ELECTION CASES. 
 
 In the language of one of the witnesses, this could not have occurred 
 " unless we were blind." 
 
 As to the bogus tickets being in general circulation at polls 5 and 6 
 the evidence is by no means clear, but there is no evidence to show that 
 more than one was voted, while the officers of election swear positively 
 that these bogus tickets were not in the boxes when they counted 
 the ballots on the day of election. The contestant does, however, pro- 
 duce evidence to prove that the contestee had some enemies in his own 
 party, in Iberville Parish, who endeavored to defeat him. This is ad- 
 mitted by coutestee, and the committee are satisfied that such was 
 the case, for an examination of the official returns from that parish 
 shows that Darrall, the contestee, ran behind his ticket 213 votes, and 
 the contestant ahead of his ticket 113, making a difference against the 
 sitting member in that parish of 326 votes, which sufficiently accounts 
 for the opposition in said parish, and all this was taken into the account 
 when both the Kellogg and Nichols returning-boards gave the sitting 
 member his certificate of election. If SOS bogus votes were cast out of 
 a total of 1,307, is it not reasonable to suppose that 15 or 20 of them 
 might have been found to testify to that fact ? and this would be the 
 strongest and best evidence the contestant could produce; but after all 
 the effort that has been made in this direction but one of these 800 can 
 be found. 
 
 The committee therefore are compelled to believe that these tickets 
 were not in the boxes when the votes were counted, on the day of elec- 
 tion. Wharton's testimony referred to by contestant is to the effect that 
 he knew on the day of the election that the count was incorrect ; now 
 if this be true, why did not he or contestant have a recount at once, 
 or within the time prescribed by law for preserving the ballots ? Why 
 wait until the time had expired fixed by law for keeping the ballot-boxes ? 
 If it be claimed that the government of Louisiana was then in the hands 
 of his political enemies, and that that was the reason, the committee do 
 not understand why (it that was the reason) a recount was not asked 
 for when the Nichols government came into power, and when a new can- 
 vass by a new returuiug-board was had. But this recount was not asked 
 for until it was discovered that this new returuing-board arrived at sub- 
 stantially the same conclusion as the old one, and the Democratic gov- 
 ernor gave the certificate of election to the same man that the Republican 
 governor had. And it must not be forgotten that this Democratic gov- 
 ernor never did give a certificate to the contestant in this case. Although 
 he was at his office for six months after this recount he issued no cer- 
 tificate, and none was issued to contestant until in the absence of the 
 governor, and only three days before the meeting of Congress, the lieu- 
 tenant governor issues the document under and by virtue of which con- 
 testant claims. This, to say the least, has a suspicious look. 
 
 SAINT MARTIN'S PARISH. 
 
 Lieutenant-Governor Wiltz omits Saint Martin's Parish in his certifi- 
 cate to the contestant. 
 
 There are no reasons for not counting this parish. The contestant 
 furnishes no evidence whatever to show unfairness in the election or 
 fraud in the returns. The evidence, both of Democrats and Republicans 
 in the record, is that the election was fair, 
 
 The Nichols returning-board returned the parish for Darrall 1,095, for 
 Acklen. 1,028. 
 
 The contestant files certificate of the clerk of court, that the records 
 of his office show the vote as, Darrall 1,095, Acklen 1,028 (p. 16). And
 
 ACKLEN VS. DAREALL. 
 
 177 
 
 the unconditional agreement of the parties made before this committee, 
 which is hereafter quoted, gives Darrall 1,095; AcJclen 1,028. 
 
 In a contest for the parish offices, the Nichols' returning-board adopted, 
 July 10, 1877, a resolution, found on p. 13, that they were not able to 
 decide who had been elected to those offices. This in no way applies to 
 the vote of Saint Martin's for member of Congress, as the same board 
 had already canvassed and declared the Congressional vote. 
 
 LA FOURCHE PARISH. 
 
 There appear in the record various returns and much evidence regard- 
 ing La Fourche. 
 
 In a contest as to parish officers the matter went to the supreme court 
 of the State. The district judge had decided the vote for sheriff as 
 Democratic 2,001, ^Republican 2,017, a Republican majority of 16 (p. 11). 
 Counting all the polls, and allowing the votes that would have been 
 polled at ward 8, and deducting illegal votes, the " chief justice decides 
 vote for sheriff as Democratic 2,025, Eepublicau 1,983, a Democratic ma- 
 jority of 42. (Seep. 12.) 
 
 Lieuteuaut-Governor Wiltz in his certificate to contestant gives the 
 vote of La Fourche as (p. 2) : 
 
 Acklen 2,086 
 
 Darrall 2,015 
 
 Acklen's majority 71 
 
 And we have allowed that to stand as the vote in our computation. 
 
 The contestant has filed what is termed a certificate of election from 
 Louis A. Wiltz, lieutenant-governor of Louisiana. This certificate was 
 issued October 12, 1877; was received and referred to this committee by 
 the House October 16, 1877. It purports to be based upon the follow- 
 ing: 
 
 Consolidated statement of the aggregate vote of the parishes constituting the third Congres- 
 sional district of the State of Louisiana at an election held on the 7th day of November, 
 1876, under a writ of election dated September 16, 1876, for Representative* in the Forty- 
 fifth Congress of the United States, together ivith the recount of the vote of the parish of 
 Iberville and the report of the board of canvassers in relation to the parish of Saint 
 Martin't, in the third Congressional district. 
 
 Names of parishes. 
 
 ri 
 
 P 
 
 d 
 
 Joseph H. Acklen. 
 
 
 Vote*. 
 2 059 
 
 Vote*. 
 
 1, 215 
 
 
 1 692 
 
 1 679 
 
 
 1 966 
 
 1 393 
 
 Saint Mary 
 
 2 385 
 
 1 423 
 
 Iberia . .. 
 
 1,455 
 
 1 242 
 
 
 661 
 
 1, 157 
 
 
 228 
 
 955 
 
 ( ' :ilca siili 
 
 91 
 
 1 291 
 
 Cameron 
 
 69 
 
 226 
 
 
 2 015 
 
 2 086 
 
 
 
 
 Iberville 
 
 
 
 
 
 
 Total 
 
 12 621 
 
 12 66S 
 
 
 
 
 This, it will be observed, embraces the five polls that -were rejected by the snpervisora and the on* 
 poll that was rejected by the Kellogg retnrning-board. 
 
 It will farther be observed that it entirely omits the parishes of Saint Martin's and Iberville. 
 
 H. Mis. 58 12
 
 178 
 
 DIGEST OF ELECTION CASES. 
 
 This statement of the vote by parishes, as given above, is identical 
 with the count of the Nicholas returning-board, only that Saint Martin's 
 and Iberville are omitted. 
 
 AGREEMENT AS TO SAINT MARTIN'S PARISH. 
 
 By an agreement found in the Eecord, p. 172, the parties to this con- 
 test decide to count Saint Martin's for Darrall, 1,095 ; for Acklen, 1,027. 
 
 > Before the Committee on Elections, House of Representatives. 
 
 JOSEPH H. ACKLEN 
 
 V8. 
 
 CHESTER B. DARRALL. } 
 
 It is hereby stipulated and agreed by and between the parties contestant and con- 
 teetee that, in the consideration and determination of the above-entitled case, the 
 committee shall allow to the contestant ten hundred and twenty-seven (1,027) votes 
 as having been lawfully cast, counted, and returned for him in the parish of Saint 
 Martin's, in the State of Louisiana, and to the contestee ten hundred and ninety-five 
 (l,095)votes as having been lawfully cast, counted, and returuedfor him in said parish, 
 and that said parties respectively lawfully received, and are entitled to the benefit of, 
 the number of votes aforesaid on account of said parish. 
 
 J. H. ACKLEN. 
 C. B. DARRALL. 
 
 If we then take the vote in the balance of the district as claimed by 
 the contestant, and which includes all the rejected polls, and add the 
 parish of Saint Martin's, as it was agreed it should be counted, the vote 
 will be as follows : 
 
 Darrall, as per table 12, 621 
 
 Darrall, Saint Martin's (above) 1, 095 
 
 Acklen, as per table 12, 66(i 
 
 Acklen (Saint Martin's) 1,028 
 
 13, 716 
 
 13, 694 
 
 Giving Darrall a majority, exclusive of all votes from Iberville, of 22 
 
 From the parish of Iberville, we have in the Eecord, first, the official 
 count and return, made by the officers of election at the polls of the 
 actual votes as cast on the day of election. This official count and re- 
 turn, as made and sworn to by the officers of election of both parties, 
 and the compilation by the Kellogg and the .Nlcholls returning-boards y 
 are the same ; that is, Darrall, 2,070 ; Acklen, 1,078. Next we have a 
 recount of the ballots found in the boxes of this parish, which recount 
 was made March 6, 1877. 
 
 At this recount all of the ballot-boxes of Iberville Parish, eleven in 
 number, were opened, and the ballots found in them counted. 
 
 The recount of six of these boxes does not vary materially from the 
 official count. The said six boxes were from polls 3, 4, 8, 9, 10, and 11, 
 and the evidence of contestant's witnesses shows that these boxes were 
 carefully sealed at the polls, and the seals were found intact when they 
 were recounted. 
 
 The official count and recount of these six boxes was as follows : 
 
 
 Official count. 
 
 v 
 
 Recc 
 Darrall. 
 
 uut. 
 
 Darrall. 
 
 Acklen. 
 
 Acklen. 
 
 Poll 3 
 
 176 
 
 128 
 54 
 121 
 193 
 91 
 
 223 
 33 
 
 58 
 251 
 33 
 44 
 
 189 
 105 
 55 
 122 
 19:i 
 90 
 
 219 
 34 
 59 
 250 
 33 
 45 
 
 Poll 4 
 
 Poll 8 
 
 Poll 9 
 
 Poll 10 
 
 Pollll 
 
 
 Total . 
 
 703 
 
 640
 
 ACKLEN VS. DARRALL. 
 
 179 
 
 The official count and recount of these six boxes only shows a differ- 
 ence of seven votes, which difference is so small that it is not material, 
 and was no doubt owing to the manner and hurry in which the votes 
 were counted at the polls. 
 
 Darrall's majority in six polls (official count) 121 
 
 Darrall's majority iu six polls (recount) 114 
 
 If it be admitted that the recount of the ballots in these six boxes is 
 the most correct, and that vote be added to the total vote of each party 
 in the district as claimed by the contestant, we have : 
 
 Darrall, as per table 13, 71(1 
 
 Darrall, six boxes, Iberville 754 
 
 Acklen, as per table 13, 693 
 
 Acklen, six boxes, Iberville 640 
 
 1-1,470 
 
 A majority for Darrall of . 
 
 14, 333 
 
 137 
 
 Thus it is shown that, taking all that the contestant claims in the 
 balance of the district, and taking his recount of these six uncontested 
 boxes in Iberville, the contestee still has a majority of 137 votes. 
 
 The other five boxes in this parish, that is, boxes from polls 1, 2, 5, 6, 
 and 7, show a most surprising difference between the official count as 
 made at the polls and the recount made four months afterward. 
 
 The evidence of contestant's witnesses (which has been quoted) shows 
 that some of these boxes were not properly sealed, and dthers were found 
 with the seals broken at the recount. 
 
 The official count and recount of these five contested boxes was as 
 follows : 
 
 
 Official count. 
 
 Recount. 
 
 Darrall. 
 
 Acklen. 
 
 DarralL 
 
 Acklen. 
 
 Blank, 
 
 Polll... 
 
 218 
 394 
 207 
 301 
 187 
 
 44 
 115 
 63 
 156 
 58 
 
 139 
 86 
 79 
 99 
 
 96 
 
 150 
 340 
 158 
 228 
 79 
 
 55 
 
 90 
 32 
 135 
 
 73 
 
 Poll2 
 
 Polls 
 
 Poll 6 
 
 Poll? 
 
 Total 
 
 1,307 
 
 436 
 
 499 
 
 955 
 
 38i 
 
 
 This recount was ordered to be made by James Crowell, parish judge 
 of Iberville, on an application made to him by contestant in an oral ar- 
 gument, as contestant says in his brief. It was had against the protest 
 of the contestee's representative, and the judge gave his authority for so 
 ordering the recount, section 123 Kevised Statutes of the United States. 
 Neither that section or any other law of the United States or of the State 
 of Louisiana authorizes this recount. 
 
 The recount was made by experts who were appointed by the judge. 
 They agree as to the number of ballots then found in these five boxes 
 for each party, but one of the experts testifies distinctly that the seals 
 of some of the boxes were found broken, and that the tickets in the 
 boxes (especially box from poll 2) did not have the appearance of hav- 
 ing been handled and folded by the voters ; that the tickets having this 
 appearance were all the black-back Republican ticket with Acklen's 
 name on. See testimony of Jolley, page 246 : 
 
 Q. Did yon notice carefully tbe appearance of the tickets as taken from those boxes 
 
 \\lu-u :!> !r-(i;;;u \V:IK made ? A. Y<--. <;r.
 
 180 DIGEST OF ELECTION CASES. 
 
 Q. Will you please state the appearance of a portion of them or any of them ? Did 
 they look like tickets that had been regularly voted ? A. Some of them looked like 
 well, now, I will tell you how they looked. Some of them looked like they had been 
 voted like an ordinary ticket and others looked like they had not been voted that is, 
 they did not have the appearance of having been doubled up like a voted ticket. 
 
 y. Were these tickets that had the appearance of not having been voted Kepublican 
 tickets ? A. Republican tickets. 
 
 Q. Were they the black-back tickets ? A. Yes, sir. 
 
 Q. Did any of the Democratic tickets have that appearance ? A. No, sir. 
 
 <^. Were there more than one-third of Republican tickets in the box ? A. Some 
 "boxes there was three colors. 
 
 Q. Did any of the tickets have this appearance of not having been voted except the 
 black-back tickets? A. No, sir. In some of the boxes when we had opened the box 
 we would turn up the box, and in the back you would see tickets like ordinary tickets 
 crossways, faces uj>, ''ke they had been thrown in there. Then we would go on further 
 and we would find on the back tickets with a crease right through the back where 
 they had been folded. I don't know the exact number, but they were quite thick, 
 because in taking them from the box I would reach over and take these tickets that 
 was folded in the center by bunches. 
 
 Q. Was it more than one ? A. Fifteen or twenty. Well, they were put together, 
 the tickets. The tickets were taken from the box, a number of them together, and 
 the tickets were invariably the same kind, black-back Republican tickets. In count- 
 ing the tickets I frequently called Mr. John H. Shanks's attention to it, showed them 
 to him that they were in bulk when I took them from the box. They looked new. 
 
 I also called Mr. Acklen's attention to it. 
 
 Q. You say these tickets, folded in bunches longways and crosswise, coming out, 
 "were invariably the black-back Republican tickets? A. Yes, sir. 
 
 Q. There were none other folded in that manner and had that appearance ? A. No, 
 sir ; not that I remember. 
 
 Q. Whose name was on these tickets having that appearance, for Congress, or was 
 any name on them ? A. Some had J. H. Acklen's ; some did not have anybody's on. 
 
 Q. W r as the Republican nominee's name on any of these tickets, to your recollec- 
 tion ? A. No, sir. I would like to state to that. I would take these ticket* by the 
 back and tell what ticket they were without looking at the face. 
 
 Poll 2 was the only one where a string was used (p. 246) : 
 
 I I Q. What boxes, by number, did you notice contained tickets which you state were 
 folded in the peculiar way? A. I don't remember. There was one box. 1 can't tell 
 you. I don't know the number. It was the box that had the string through the 
 tickets. The tickets were on a string. 
 
 Q. How were these tickets put on that string ? A. They had a hole run through 
 the ticket and the string through the hole. 
 Q. W 7 as that string tied or secured in any way? A. I cut it with a knife. 
 
 Aud as to his protesting against the recount he testifies as follows 
 (p. 177): 
 
 And having been informed by said Acklen and Hon. James Crowell that they in- 
 tended to proceed and take the evidence, and deponent, not knowing what to do, 
 appeared before James Crowell, the judge taking said evidence, and objected, on be- 
 half of said Darrall, to the taking of the evidence, on the ground that sufficient no- 
 tice had not been given, and that the judge had no authority to recount the ballots ; 
 that his objections were overruled by the judge, and that the ballot-boxes, some of 
 which had every appearance of having" been tampered with, were opened, and the 
 ballots recounted. 
 
 This evidence of one of the sworn experts appointed by the judge, 
 and of the one who handled most of the tickets, is sufficient to invali- 
 date the whole proceedings. 
 
 It is seen, therefore, that in no way can the contestant be declared 
 entitled to the seat except by giving him the votes of these five boxes, 
 in accordance with the recount had four months after the election. 
 
 It is then to be determined whether these five boxes shall be counted 
 according to the official count made at the polls or according to the re- 
 count. 
 
 We have no hesitation in deciding that the official count of these five 
 boxes is the only one that is entitled to be received. Could any evi- 
 dence on a question in dispute be stronger than what has been' cited
 
 ACKLEN VS. DARE ALL. 181 
 
 in this case ? One thing seems to be certain, and conceded by the lieu- 
 tenant-governor, who gave the contestant his certificate, and that is that 
 Mr. Acklen is not entitled to have the votes cast at polls 1, 2, 5, 6, and 
 7 counted for him, because in making his certificate he makes no count 
 of Iberville Parish. 
 
 There is no precedent for allowing a recount of this kind to overcome 
 and set aside an official count regularly made in accordance with the 
 forms of law, and this committee, it is presumed, does not intend to 
 depart from all precedents and establish one so widely at variance with 
 all decisions in similar cases heretofore made, and which would certainly 
 be mischievous in its consequences. 
 
 By no possibility can the contestant in this case be seated, unless it 
 be determined to reject the decisions of both the Kellogg and Nicholls 
 returning-boards, and to declare that the Democratic and Republican 
 officers who held the election at these five polls in Iberville Parish were 
 either notoriously ignorant or wickedly conspired to make a false return; 
 for no person who has any knowledge of the manner of conducting an 
 election can for one moment believe that men of ordinary ability and 
 honesty could preside at and count the votes of an election and not know 
 that bogus and blank tickets were voted, particularly when these bogus 
 tickets amounted to several hundreds, and were a majority of the votes 
 cast. 
 
 In conclusion, to sum up this case, we will take the vote of the bal- 
 ance of the district, exclusive of Saint Martin's and Iberville, just as the 
 contestant claims it in his certificate issued to him by Lieutenant-G-ov- 
 ernor Wiltz, and which is certified to by the secretary of state as a cor- 
 rect record of the votes of the various parishes named, and which is 
 also the vote of those parishes as returned by the JSicholls returning- 
 board. It is as follows : 
 
 
 
 a 
 
 
 
 
 
 
 3 
 
 
 
 
 
 ~ 
 
 t 
 
 Names of parishes. 
 
 
 
 ri 
 
 
 n 
 
 f. 
 
 
 
 w 
 
 . 
 
 
 
 
 >? 
 
 
 Voteg. 
 
 Totet. 
 
 
 2 059 
 
 1,215 
 
 Assumption .. 
 
 1,692 
 
 1,679 
 
 Terre Bonne 
 
 1,966 
 
 1,393 
 
 
 2 385 
 
 1.423 
 
 Iberia 
 
 1,455 
 
 1,242 
 
 La Favette . 
 
 661 
 
 1,157 
 
 
 228 
 
 955 
 
 Calcasieu ... 
 
 91 
 
 1.291 
 
 Cameron ... 
 
 69 
 
 225 
 
 La Fourche 
 
 2,015 
 
 2,086 
 
 Saint. Martin's T _ r T . ,,_ , .......... 
 
 
 
 Iberville . . 
 
 
 
 
 
 
 12, 621 12, 660 
 
 To this vote we will add the vote of the parish of Saint Martin's, as it 
 was returned by the Nicholls returning-board when they made the re- 
 turn for members of Congress, as it is certified to by the clerk of the 
 court of that parish in his certificate, placed in the record by the con-
 
 182 DIGEST OF ELECTION CASES. 
 
 testaut, and as it was agreed it should be counted by the parties them- 
 selves before this committee. That is 
 
 Darrall, as above table 12,621 
 
 Add Saint Martin's ^ 1,095 
 
 13,716 
 
 Acklen, as above table 12,666 
 
 Add Saint Martin's 1,028 
 
 13, 694 
 
 This, then, exclusive of Iberville, and taking the balance of the dis- 
 trict just as claimed by the contestant, leaves Darrall a majority of 22 
 votes. 
 
 To this vote of the district we think the law, the evidence, and the 
 equities of the case demand there should be added the vote of Iber- 
 ville Parish, according to official returns of the officers of election, ac- 
 cording to the Kellogg returning-board, and according to the Nicholls 
 returniug-board ; they all agree. 
 
 We then have 
 
 Darrall, as above 13, 716 
 
 Darrall (add Iberville) 2,070 
 
 15,786 
 
 Acklen, as above 13,694 
 
 Acklen (add Iberville) 1,078 
 
 14, 772 
 
 A majority for Darrall of 1,014 
 
 This ignores the recount in Iberville entirely, and we think is just; 
 but the vote of six out of the eleven polls in Iberville is uncontested. 
 These are polls 3, 4, 8, 9, 10, and 11 ; to these we add poll 1, which the 
 majority in their report admit should be counted according to the offi- 
 cial returns. The vote of these seven uncontested polls is as follows : 
 
 Darrall 941 
 
 Acklen 798 
 
 If this vote be added to the vote of the balance of the district, exclu- 
 sive of Iberville, we have 
 
 Darrall (exclusive Iberville) 13,716 
 
 Darrall (add 7 uncontested polls) 941 
 
 14,657 
 
 Ackleu (exclusive Iberville) 13, 694 
 
 Ackleu (add 7 uncontested polls) ; 798 
 
 14, 492 
 
 a majority for Darrall, according to contestant's own figures, in the uu- 
 coi i rested part of the district, of 165 votes. 
 
 I '.ut the majority having conceded that poll 1 shall be counted ac- 
 cording to the official count because the seals of the boxes were broken, 
 by which it is indicated that the boxes had been tampered with, the 
 same must apply to poll 6, where the seals were also broken. 
 
 It' poll 1 is not to be taken according to the recount, none of these 
 polls should be counted according to that recount, for all the boxes were 
 kept in the same place; and if the evidence is sueh that the security of 
 the boxes is not sufficiently proven as to one of them, it clearly follows 
 that it is not sufficient as to any of them. 
 
 If the other four polls, Nos. 1, 2, 5, and 7, of Iberville Parish, are not
 
 ACKLEN VS. DARRALL. 183 
 
 counted according to the official returns and according to the returns 
 of both of the returning-boards, then surely they will not be counted 
 according to this recount made four months after the election. 
 
 With the evidence given we think this cannot in justice and right be 
 done. 
 
 With the admission of the majority that poll 1 should be counted ac- 
 cording to the official count and not the recount, and with an unbroken 
 line of precedents that no recount has ever been allowed to overcome 
 an official count in any contest for a seat in the House of Eepresenta- 
 tives, we claim that the official count should stand, or that these four 
 polls should be rejected and not counted for either party. 
 
 In either event the right of the contestee to the seat is clear. 
 
 In view, then, of the foregoing, we recommend the adoption of the fol- 
 lowing : 
 
 Resolved, That Chester B. Darrall was duly elected and is entitled 
 to a seat in this House as a Eepresentative in the Forty-fifth Congress 
 from the third Congressional district of the State of Louisiana. 
 
 Resolved, That Joseph H. Acklen is not entitled to a seat in this House 
 as a Eepresentative in the Forty-fifth Congress from the third Congres- 
 sional district of the State of Louisiana. 
 
 H. PEICE. 
 
 Mr. THORNBURGH, on behalf of a minority of the Committee of Elections, 
 submitted the following 
 
 REPORT: 
 
 A minority of the Committee of Elections, to whom was referred the con- 
 tested-election case of Joseph H. Acklen vs. Chester B. Darrall, from the 
 third district of Louisiana, submit their views as follows : 
 
 There have been two canvasses of the votes for this district. The 
 first under the Packard government, which gave Darrall a majority of 
 2,093 votes, and again under the Mcholls government, which gave Dar- 
 rali also a majority, but reduced to 1,094 votes. The canvass of the 
 Nicholls government is based upon a count of all the parishes and polls 
 as returned ; hence we take this canvass as the best basis for the inves- 
 tigation of the case. 
 
 The only difference of opinion existing in the committee is limited to 
 poll ]STo. 17, La Fourche Parish, and six precincts in Iberville Parish. 
 And it is admitted by the entire committee that all the remaining par- 
 ishes and voting-precincts shall be counted as canvassed by the Nicholls 
 returiiing-board. And first as to precinct No. 17, La Fourche Parish. 
 
 It is shown by the evidence of M. W. Billier (Eecord, p. 132) that the 
 place for holding the election was changed from E. H. Allen's ware- 
 house, where notice had been given the election would be held, to the 
 negro quarters on the same plantation, which was about a mile distant 
 from the warehouse. This change was made without legal authority, 
 and without giving notice of the same. This change lost to Acklen 
 some 15 to 18 votes, because, as the witness Ledet states it, the Demo- 
 cratic voters were "disgusted" at the change and would not go to the 
 negro quarters to vote. We quote his testimony on this question, from. 
 75 of the record :
 
 184 DIGEST OF ELECTION CASES. 
 
 Q. What number of votes were lost to J. H. Acklen by the failure to place poll No. 
 17 where it was ordered to be held, at the Allen warehouse, and which was really 
 held back in some negro quarters about three miles from the road ? A. Well, the 
 commissioner at that poll had instructions to hold the election on the road-side at the 
 warehouse, and he disobeyed orders and went back there. He told me himself after- 
 ward that there were about fifteen or eighteen Democrats that would not vote on 
 account of the poll being there, because Mr. R. H. Allen, who was the owner of the 
 place, protested against holding the election there and disgusted those men from vot- 
 ing there. That information I hold from the commissioner himself. I know myself 
 that on that place there were at least fifteen or eighteen white men working there 
 nearly all the year round. 
 
 Darrall received 86 votes at this precinct, all the votes that were 
 polled. By the evidence, Acklen would have received 15 to 18 votes if 
 the election had been held at the warehouse. This would have left 
 Darrall more than 60 majority at this precinct. But, as the change of 
 place of voting was without legal authority, and done, perhaps, to seek 
 an advantage for Darrall and others on the Kepublican ticket, we agree 
 with the majority to throw out this entire poll, thereby depriving Dar- 
 rall of 86 votes, when a full vote would have left him more than 60 
 majority ; and we deduct from Darrall's majority 86 votes. 
 
 This leaves us the parish of Iberville. 
 
 It is agreed by the committee, both the majority and minority, that 
 polls Nos. 1, 8, 9, 10, and 11 shall stand as counted by the Nicholls re- 
 turning-board. 
 
 These polls gave Darrall t>77 
 
 These polls gave Acklen ^30 
 
 This narrows the discussion to polls Nos. 2, 3, 4, 5, 6, and 7. The 
 testimony is quoted in the majority report, and also in the report sub- 
 mitted by Mr. Price, of the committee, and is therefore not repeated 
 here. It establishes, we think, the following facts in regard to each and 
 all of these last-named polls : 
 
 That Wharton, a Kepublican candidate for the State senate, and 
 others, conspired to defeat Darrall by the use of spurious Republican 
 tickets, intending to procure such of his friends as he could control to 
 vote and distribute on election-day these spurious tickets, and to pro- 
 cure thereby other Republican voters to vote said spurious tickets with- 
 out their knowledge. And here we will describe this ticket as shown 
 by the evidence. It is headed. " Republican ticket, Iberville Parish.' 7 
 Then follow the names of 48 persons, with the offices for which they were 
 candidates, giving in each case the name of the Republican candidate 
 for that office (see Record, pp. 72 and 73). This ticket was about nine 
 inches long, and to distinguish it from other tickets was printed on 
 paper with a glazed back, and nearly black in color. The spurious 
 tickets were exactly like those just described, except that Acklen's 
 name was inserted for Darrall's, or the whole line, " For member of 
 Congress, third district, Chester B. Darrall," left out, making it a blank 
 as to member of Congress. 
 
 The contestant claims that these spurious tickets were voted at these 
 polls. In other words, that this trick and fraud was successful, and 
 that the officers of election, not knowing such tickets were being voted, 
 did not sufficiently scrutinize the tickets to detect the fact that they 
 were not what they purported to be, to wit, straight Republican tickets, 
 and that they so counted them, giving Darrall the benefit of all the 
 spurious tickets. We think that the question whether or not the tickets 
 were sufficiently scrutinized to detect this fraud, if it was successfully 
 consummated, by the officers of the election when they made the official 
 count is conflicting and leaves the matter in doubt. Here we might
 
 ACKLEN VS. DARK ALL. 185 
 
 possibly stop ami assume that the official count must stand because 
 the evidence only casts a grave doubt as to its correctness ; but as we 
 think there is such doubt and conflict of evidence concerning the cor- 
 rectness of the official count by the officers of the election, we have 
 determined to give the contestant, Mr. Acklen, the benefit of the doubt 
 and the conflict in the testimony, and by so doing it becomes our duty 
 to carefully examine all the testimony, and see whether from it we can 
 find out what the true vote at these polls was. The contestant relies 
 on what is called a recount of the ballots, a count made of suol* bal- 
 lots as were found in the boxes, in the following month of March, four 
 mouths after the election, to establish both the facts that the first count 
 was incorrect, and, second, that the last count shows the true vote at 
 these polls in dispute. We insist that this count (the last or recount) 
 cannot be relied on for either purpose, and that it is far more unreliable 
 and uncertain than the official or first count, and that it is utterly in- 
 credible that it can show the true vote. And here we will cite some of 
 the testimony bearing on this point. 
 
 1st. Some of the boxes were not delivered by the officers of the elec- 
 tion to the clerk of the court, but were for a time out of his custody. 
 
 The law is as follows : 
 
 LAW OK LOUISIANA FOR PRESERVATION OF BALLOTS. 
 
 SKC. 13. Be it further enacted, eft-., That it shall be the duty of the commissioners of 
 election at each poll or voting-place to keep a list of the names of the persons voting 
 at such poll or voting-place, which list shall be numbered from one to the end; and 
 said list of voters, with their names and numbers as aforesaid, shall be signed and 
 sworn to as correct by the commissioners, immediately on closing of the polls, and 
 before leaving the place, and before opening the box. If no judge or justice of the 
 peace, or other person authorized to administer such oath, be present to do so, it may 
 be administered by any voter. The votes shall be counted by the commissioners at 
 each voting-place immediately after closing the election and without moving the boxes 
 from the place where the votes were received, and the counting must be done in the 
 presence of any by-stander or citizen who may be present. Tally-lists shall be kept 
 of the count, and after the count the ballots counted shall be put back into the box 
 and preserved until after the next term of the criminal or district court, as the case 
 may be ; and in the parishes, except Orleans, the commissioners of election, or any 
 one of them selected for that purpose, shall carry the box, and deliver it to the clerk 
 of the district court, who shall preserve the same as above required; and in the parish 
 of Orleans the box shall be delivered to the clerk of the first district court for the 
 parish of Orleans, and be kept by him as above directed. (Act 98, 1872, p. 174.) 
 
 That this was not complied with is shown by the following evidence : 
 Crowell, clerk of court when election was held (pp. 59, 60) : 
 
 Q. After the election did you receive all the boxes according to law! Were they 
 delivered by the commissioners? A. I received the chief part of them from the com- 
 missioners. I received two or three from the clerk of the registrar here, I believe. 
 By mistake they delivered them at his office instead of here. 
 
 Here it will be observed that some of these boxes, but which of them 
 we are not able to ascertain from the evidence, were in the hands of 
 unauthorized persons. As to how long they were thus out of the proper 
 custody, and what occurred to them while thus out of the proper cus- 
 tody, the evidence is silent. 
 
 2d. We are satisfied from the evidence that these boxes did not con- 
 tain the ballots that were cast at the polls on the day of the election, 
 but that they had been tampered with, and other ballots substituted. 
 While we admit that the proof is clearer and more certain as to the ex- 
 ternal evidences of the breaking of the seals and tearing of paper as to 
 some of the boxes than as to others, yet we are satisfied that the evi- 
 dence taken together, including the contents of the boxes, shows con-
 
 186 DIGEST OF ELECTION CASES. 
 
 clusively that this recount is wholly unreliable and worthless for any 
 purpose. 
 
 3d. It will be seen by the statute above quoted that, after the official 
 count, "the ballots counted shall be put back into the box and be pre- 
 served until after the next term of the criminal or district court, as the 
 case may be." 
 
 The annexed certificate from the clerk of the district court shows that 
 the firsl term of court was held January 1, and the said recount was 
 not uad till March. After that the clerk is not responsible for safe- 
 keeping of either boxes or ballots, and no law requires that the ballots 
 shall be longer preserved, and it is no oifense to tamper with or change 
 the ballots after that time. 
 
 Certificate of clerk. (Page 178.) 
 
 STATE OF LOUISIANA, 
 
 Parish of 1 lerville : 
 
 CLERK'S OFFICE, FIFTH JUDICIAL DISTRICT COURT. 
 
 I, Charles H. Gordon, clerk of the fifth judicial district court of Louisiana, in and 
 for the parish of Iberville, do hereby certify that the first term of said district court 
 for the present year was held in Iberville Parish on Tuesday, the 2d day of January, 
 A. D. 1H77, as the first Monday was the 1st and a dies non, his honor James L. Cole 
 presiding. 
 
 Witness my hand officially and the impress of the seal of said court at the parish 
 -of Iberville this 8th day of May, A. D. 1877. 
 
 [SEAL.] C. H. GOEDON, Clerk. 
 
 4th. The testimony shows that two clerks and their deputies were in 
 possession of the boxes after they were deposited in the clerk's office, a 
 public place easy of access. 
 
 5th. It is utterly impossible that there could have been over one thou- 
 sand of these spurious votes cast for Acklen and counted for Darrall 
 without it having been detected by the Eepublican and Democratic offi- 
 cers of election. The officers of election were divided between the two 
 parties, and were selected by the chairmen of the committees of the 
 two parties respectively. The proof shows that these officers were hon- 
 est and careful men, and it is absolutely incredible that such mistakes 
 should have been made as is claimed by contestant ; especially is this 
 so since it was known at some of these polls that these spurious tickets 
 had been brought into the parish. 
 
 i 6th. As to the condition the boxes were found in, and the excuse 
 given for it, we submit the following extracts from the testimony : 
 
 Landry. deputy clerk, Democrat (p. 62): 
 
 Q. You see the boxes every day or two? A. Yes, sir. 
 
 Q. If they had been tampered with overnight or at anytime, would that fact have 
 ben noticed by you, do you think? A. Yes, sir; so far as I know the boxes have 
 never been tampered with, so far as taking any papers out or adding any papers to 
 them, or anything of that kind. 
 
 Q. Is this court-house not very damp ? A. Yes, sir ; I say that the dampness of the 
 office would affect the seals of the boxes, if they are sealed with mucilage. Now, I 
 do not know whether it could affect the sealing-wax, but if the dampness does affect 
 the sealing-wax, they would be affected in this office, because this office is very damp. 
 
 Q. Have not those boxes been removed several times? A. They were moved twice 
 to my knowledge. 
 
 Q. Is it not possible that some of those papers on the boxes and some of the wax 
 might have been loosened by the moving of those boxes? A. Yes, sir, on account of 
 the dampness, which might have unglued some of the paper on them. In moving 
 them some of the papers might have dropped off, for all I know. You will find even 
 now that some of them are very loose. 
 
 Cross-examined by Mr. JOLLEY : 
 Q. Those boxes that have the papers broken on thorn were sealed with wax? A.
 
 ACKLEN VS. DARRALL. 
 
 187 
 
 Well. I could uot swear to that fact.. I could only w.vear to them a .f I * ee them novr 
 that they are sealed with wax. I never examined the boxes to see wnat they were 
 sealed with when they first came in. ! , 
 
 Q. Did you ever examine those boxes before to-day as carefully as ," "'j 
 since yon have been here as deputy clerk ? A. Well, I cannot say that *. oxaminea 
 all of them carefully. I examined some of tLem the other day. The clerk. m or der 
 to make more room, moved them the other day and corded them as you seethe'R^here, 
 and I remarked that some of them seemed to be loose. I did uot pay attention * hicn 
 boxes particularly were loose or uot, but I noticed that some of the labels were eni 1 . ^ 
 nngraed. 
 
 Hem. J. C. Carville says (p. 197 of Kecord): 
 
 Wo just simply put a piece of paper with mucilage over the top where they put th 
 ballot in, and then over the key-hole another piece of paper with mucilage; did not 
 seal it or put the name on it. 
 
 This is in regard to poll 7. 
 
 Poll 5 was sealed with wax on top, but nothing was placed over the 
 key-hole. 
 
 Talbott, Democratic commissioner, poll 5 (p. 47) : 
 
 Q. After you finished the count what did you do with the tickets ? A. We placed 
 them in the box and sealed it. I do not think that the opening of the lock was sealed. 
 
 7th. As to the impossibility of such mistakes being made as is claimed 
 by contestant, we quote the following from the testimony of Bazil Craig 
 (p. 273), a commissioner at poll 2 : 
 
 Q. Have you heard of the recount of the vote for Congressman, made at the request 
 of Mr. Acklen, at your poll ? A. Yes, sir; I have heard of it. 
 
 Q. In counting these tickets, are you sure Mr. Acklen's name was not on any of the 
 Republican tickets ? A. Yes., sir ; I am sure of that ; his name was not on. 
 
 Q. Mr. Craig, it is claimed in this recount that instead of 394 votes Mr. Darrall 
 received only 8ti votes at your poll. Could such a mistake have been possible f A. It 
 i.s impossible, sir, from the very reason that the tickets were counted too careful by 
 R. Hebert, who was standing just behind me. Him and I looked over the tickets 
 very carefully, and there could not have been possibly such a mistake. 
 
 Q. Could it have been possible that instead of 115 votes Mr. Acklen had 340 votes 
 in your box ? Could such a mistake have been possible ? A. It is impossible, sir, to 
 my eye-sight. 
 
 Q. Is your eye-sight good ? A. Perfectly good, sir. 
 
 Q. Could it have been possible, Mr. Craig, that there was 90 of those votes that had 
 no name on for Congress ? A. No, sir; it could not have been possible. 
 
 Q. Mr. Craig, how would you account, then, for this difference between the vote as 
 you counted it, which was 394 for Darrall and 115 for Acklen, and the vote as claimed 
 in this recount? How would yon explain that? A. It would be impossible for me 
 to say Mr. Acklen was elected there by the Republican votes, unless we all were 
 blind. 
 
 The following will show how carefully the official count was made at 
 poll No. C, and the impossibility of making such a mistake as the re- 
 count would indicate : 
 
 Q. Did you distribute any of the black -tickets f A. No, sir. 
 
 Q. Who assisted you? Was one of the commissioners scrutinizing these tickets 
 with you examining them with you ? A. There was no commissioner examining 
 the tickets with me; but one supervisor. 
 
 Q. Which one? A. David Johnson. 
 
 Q. Were the tickets and the names on the tickets scrutinized by any other officers 
 except yourself? A. No, sir; not that I know of. 
 
 Q. And you can positively swear that you examined the names on every ticket? 
 A. Yes, sir ; I took them out one by one. 
 
 o. Were there any Republican tickets scratched in the box ? A. Yes, sir. 
 
 Q. Did you sign and swear to the returns as correct ? A. Yes, sir. 
 
 <.,. Wt-r,- they correct ? A. Yes, sir. 
 
 (J. Was Mr. DarraU supported by all the Republicans of your ward? A. Everyone 
 of them. 
 
 Q. Did the Wharton element and the Wakefield element all support Darrall in that 
 ward? A. Yes, sir. 
 
 C^. Ho\v would yon account for the fact, as claimed in this recount of votes, that in-
 
 188 
 
 - DIGEST OF ELECTION CASES. 
 
 I 
 
 stead of Darrall hay 
 
 or how would y^ ing a majority of the votes at your poll, Mr. Ackleii had a majority ; 
 
 out. m explain thatl A. Well, I could not exactly tell how that come 
 
 Q. Could tl- 
 because we .11 at have occurred by any mistake that yon made? A. Not at my poll, 
 
 Q. Werji'Were very careful in counting these votes, 
 careful L 3 you careful in noticing the names on every ticket ? A. Yes, sir ; I was very 
 
 -p , **n noticing the names. 
 
 'LL No. 1. E. A. Verrett, a supervisor at this poll, testifies that he 
 j^-ajrefully observed every ticket and the names on it," and that he does 
 ot^ think it possible to have made a mistake. 
 
 j Yet it is claimed by contestant that the election officers made a mis- 
 take of 79 in favor of Darrall, giving him that number too many, and a 
 ^mistake of 116 against Acklen, giving him that many too few. In other 
 { words, that by the official count Darrall had 218, Ackleii 44 ; and by 
 the recount, Darrall had 139, Acklen 150. 
 
 This evidence and the fact that seals of the boxes were found broken 
 when the recount took place were sufficient to induce the majority of 
 the committee to reject the recount of poll No. 1. This is an admission 
 that the ballot-box of this poll has so much evidence pointing to the 
 fact that it had been tampered with before the recount that the majority 
 could not accept that recount. This, in connection with the evidence 
 in regard to the other disputed polls, a part of which we have quoted 
 above, and the great discrepancies between the two counts, amounting 
 to over one thousand votes, is conclusive to our minds that the recount 
 should not be accepted as to any of these boxes. When it is conceded 
 that one has been tampered with a strong presumption is raised as 
 against the others. 
 
 The majority of the committee also refuse to accept the recount of 
 poll No. 7. 
 
 At this poll the official vote stood: Darrall, 187; Acklen, 58. By the 
 recount it stood: Darrall, 79; Acklen, 96; showing large discrepancies 
 between the two counts. But because the evidence shows that the box 
 was not sealed according to law, and the officers of the elections did not 
 write their names on the paper placed on the box; that it was only 
 fastened by strips of paper stuck on with mucilage, which were found in 
 bad condition (tried to be explained in the evidence by saying that the, 
 office was damp, as above quoted), the majority of the committee de- 
 clined to adopt the recount, and accepted the original count. But this 
 being conceded as to this box, it is a virtual concession of the unrelia- 
 bility of the recount as to all of these disputed polls. 
 
 We have in vain looked for a single precedent for overcoming an 
 official count by a recount, and seating a contestant by reason of such 
 recount. The rule of law in matters of this kind is well settled. 
 
 It is stated by McCrary as follows (McCrary on Elections, section 
 277): 
 
 Where, as is the case in several of the States, the statute provides a mode of pre- 
 serving the identical ballot cast at an election for the purpose of being used as evi- 
 dence in case of contest, such statute, and particularly those provisions which provide 
 for the safe-keeping of such ballots, must be followed with great care. The danger 
 that, after the count is made (especially if the vote is very close), the ballots may be 
 tampered with, is so great that no opportunity for such tampering can be permitted. 
 Such ballots, in order to be received in evidence, must have remained in the custody 
 of the proper officer of the law from the time of the original count until they are pro- 
 duced before the proper courj^or officer, and if it appear they have been handled by 
 unauthorized persons, or that they have been left in an exposed and improper place, 
 they cannot be ottered to overcome the official count. 
 
 Applying this rule to the evidence in this case, it is clear that this 
 recount cannot be accepted as showing the vote of these polls. 
 
 Hut if the rofonnt w>iv aronratc. and it was clearly proven that the
 
 ACKLEN VS. DARRALL. 189 
 
 ballots were intact, the House cannot, in our judgment, properly give 
 Mr. Acklen the benefit of it, because it is clear, beyond dispute, that 
 his claim rests upon the fact that fraudulent tickets were, against the 
 knowledge and will of the voters, clandestinely procured to be voted, 
 and thereby a fraud was perpetrated upon the voters. He, therefore, 
 is claiming his seat upon a fraud, which the House cannot sanction. 
 
 Now, in conclusion, we say that, inasmuch as a doubt has been cast 
 upon the accuracy of the official count of these polls in Iberville Parish, 
 viz, 2, 3, 4, 5, 6, and 7, and as the recount cannot be accepted as indicat- 
 ing the true vote of these polls, it is our judgment that the proper dis- 
 position of them is to reject them altogether, because there is no evidence 
 upon which we can implicitly rely as to what the true vote was. 
 
 We agree with the majority that poll 17, La Fourche Parish, shall be 
 rejected. 
 
 This makes the result as follows : 
 
 The parishes other than Iberville 
 
 Dai ral 1 13, 716 
 
 Deduct poll 17, La Fourcbe Parish 86 
 
 13, 630 
 
 Add his vote in polls Nos. 1. 8, 9. 10, 11, Iberville 677 
 
 Dan-all's total vote 14,307 
 
 In the parishes other than Iberville 
 
 Acklen 13,693 
 
 Add his vote in polls No. 1, 8, 9, 10, 11, Iberville 430 
 
 Acklen's total vote 14,123 
 
 Dan-all's majority 184 
 
 It will be seen that we reject both counts at poll No. 7, which the ma- 
 jority are willing to count as it was counted officially; but, as it appears 
 from the evidence that the fraudulent tickets were distributed at this 
 poll, and that the official count was loosely and carelessly made (see evi- 
 dence of Le Blanc, p. 58), we think it safer to reject that poll, as there 
 might have been mistakes made in the manner in which the count was 
 conducted. We consider that these fraudulent tickets were taken to 
 poll No. 1, but it will be found on examining the evidence that David- 
 son gave the fraudulent tickets to Verrett and called his attention to 
 the fact of the fraud. It is also shown that Verrett and the other offi- 
 cers of the election, knowing of their existence, made a careful canvass 
 of each ticket voted. 
 
 The carefulness of this count is shown by the fact that while Packard 
 received 298 votes, which were counted for him, Darrall, contestee, only 
 received 218 votes. There were only a few scratched tickets, thus show- 
 ing that the tickets must have been carefully examined by the officers 
 in making the count. (See Dubuclet's evidence, pp. 265-'6.) 
 
 In view, then, of the foregoing, we recommend the adoption of the 
 following : 
 
 Resolved, That Chester B. Darrall was duly elected and is entitled to 
 a seat in this House as a Representative in the Forty-fifth Congress 
 from the third Congressional district of the State of Louisiana. 
 
 Resolved, That Joseph H. Acklen is not entitled to a seat in this House 
 as a Representative in the Forty-fifth Congress from the third Congres- 
 sional district of the State of Louisiana. 
 
 J. M. THORNBURGH. 
 JOHN T. WAIT. 
 FRANK HISCOCK.
 
 190 DIGEST OF ELECTION CASES. 
 
 BENJAMIN DEAN vs. WALBRIDGE A. FIELD. 
 
 THIRD CONGRESSIONAL PISTRICT OF MASSACHUSETTS. 
 
 This district lies wholly within the city of Boston, and the contest arises on account 
 of the alleged errors of the ward officers of the city in making the count, which 
 errors a committee of aldermen sought to correct in pursuance of an act of the 
 legislature of Massachusetts. 
 
 Held, That this act could not have been intended to apply to the election of Repre- 
 sentatives in Congress. 
 
 The words "fourth district," after the words "Representative in Congress," do not con- 
 stitute a part of the legal designation of the office ; and ballots cast in the third 
 district, reading "For Representative in Congress, fourth district, Walbridge A. 
 Field, of Boston," must be counted for contestee. 
 
 Laws relating to the counting of votes must be strictly construed and rigidly enforced. 
 After the count of votes for Representative in Congress by United States super- 
 visors, who remain with the ballot-boxes until the count is completed and the cer- 
 tificate made out, it is not competent for any State to provide another board of 
 canvassers who may take possession of the ballot-boxes, exclude the Federal offi- 
 cers, and secretly count the votes and declare a different result. 
 
 The House is not precluded by the face of the returns, but may proceed to inquire 
 into the validity of the election of any one of its members, and in such inquiry 
 has all the power of a court in cases of quo warranio. 
 
 The House adopted the majority report March 28, 1878. 
 
 FEBRUARY 21, 1878. Mr. SPRINGER, from the Committee of Elections, 
 submitted the following 
 
 REPORT: 
 
 The Committee of Elections, to whom was referred the contested-election 
 case from the third Congressional district of Massachusetts, liaving had 
 the same under consideration, submit the following report: 
 
 The third Congressional district of Massachusetts is composed of 
 wards 13, 14, 15, 16, 17, 18, 19, 20, 21, and 24 of the city of Boston, and 
 is the only district in Massachusetts wholly comprised within the limits 
 of a city. The election for Eepresentatives in Congress took place in 
 that State on the 7th day of November, 1876, at which time Presidential 
 electors and State officers were elected. One polling- place was opened 
 in each ward of the city of Boston, and the election was held in each 
 ward by a warden, clerk, three inspectors appointed by the mayor, and 
 three inspectors elected by the qualified voters of the ward. The warden 
 presides at the election, and it is the duty of the warden and inspectors, 
 with the assistance of the clerk, to receive, sort, and count all the votes 
 cast. The ballots are taken out of the boxes and counted from time to 
 time during the day, and the ward officers are thus enabled to finish the 
 counting soon after the closing of the polls, and the result must be pub- 
 licly deelnred in open ward inootiiicr before adjournment. 
 
 The result is then transmitted, with ;i!l the bill loUJ and papers. To the
 
 DEAN VS. FIELD. 191 
 
 city clerk of the city of Bostoii. These provisions of the law were 
 strictly complied with, and there is no allegation of fraud, illegality, or 
 irregularity of proceedings in conducting the election up to and includ- 
 ing the canvass of the votes and transmission of the result by the ward 
 officers. But it is alleged that the ward officers committed errors in 
 making the count, and on account of these alleged errors the contest 
 arises in this case. 
 
 There were three counts of the votes cast for Representative in Con- 
 gress from the district in question. The first count was that made by 
 the ward officers ; the second was that made by the United States super- 
 visors of election, appointed in pursuance of sections 2011 and 2012 of 
 the Eevised Statutes of the United States ; and the third count was 
 made by a committee of the board of aldermen of the city of Boston. 
 
 We have already pointed out the manner in which the first count was 
 made. The second count was made by two supervisors of election 
 appointed for each ward by the circuit court of the United States for 
 the circuit in which the city of Boston is situated. These supervisors 
 were appointed upon the recommendation of the respective candidates 
 for Congress, or their friends, and were "of different political parties,* 
 as the law of Congress requires. They attended the election in each of 
 the wards and personally supervised the election and the count of the 
 votes, and counted those cast for Representatives in Congress. Section 
 2017 of the Revised Statutes of the United States makes it the duty of 
 supervisors of elections to attend the election, count the votes, and 
 remain with the ballot-boxes until the count is wholly completed. They 
 performed their duty and made return of the result to the chief super- 
 visor of the election, as required by law. 
 
 The counts made by the ward officers and the United States super- 
 visors substantially agree. The ward officers' count is as follows : 
 
 Votes. 
 
 Benjamin Dean received 9, 308 
 
 Walbridge A. Field received 9,276 
 
 Walbridge A. Field (fourth district) 25 
 
 A. Field 1 
 
 Field 1 
 
 Samuel D. Smith 1 
 
 The supervisors' count was precisely the same as this except that they 
 
 did not return the scattering votes cast for A. Field, Field, and 
 
 Samuel D. Smith. By both of these counts Mr. Dean, the contestant, 
 is elected, even if the 25 votes cast for Walbridge A. .Field, fourth dis- 
 trict, and the 2 for A. Field and Field are counted for the sitting 
 
 member. 
 
 The third count was made on the Friday, Friday night, and Saturday 
 after the election, by a committee of three aldermen, who assumed to act 
 in pursuance of section 4 of an act of the State of Massachusetts en- 
 titled " An act in addition to an act relating to elections," approved April 
 26, 1876. The aldermauic count assumes two phases. The committee, 
 consisting of three aldermen, reported the result of their count as fol- 
 lows: 
 
 Ballots. 
 
 Benjamin Dean 9,315 
 
 Walbridge A. Field 9,295 
 
 Walbridge A. Field (for member of Congress for the fourth district) 25 
 
 Wm. A. Field 1 
 
 Field 3: 
 
 They further state that the 25 ballots were cast in the eighteenth 
 ward, and the number of the district was printed on the ballots. The
 
 192 DIGEST OF ELECTION CASES. 
 
 committee were of the opinion that it was the intention of the voters 
 who cast these ballots to vote for the sitting member; but, under ad- 
 vice of the city solicitor, they submitted the facts and the whole subject 
 to the judgment and decision of the board of aldermen. (Eecord, page 
 9.) If the 25 votes in question were counted for the sitting member 
 this count would elect him by five majority. The board of aldermen, 
 after considering the whole subject, reported the result somewhat dif- 
 ferently, as follows: 
 
 Walbridge A. Field, of Boston, nine thousand three hundred and twenty; twenty- 
 five of which were headed ward 18 and read as follows: "For Representative to Con- 
 gress, fourth district, Walbridge A. Field, of Boston." 
 
 Benjamin Dean, of Boston, nine thousand three hundred and fifteen. 
 
 William A. Field, one. 
 
 Field, three. 
 
 Leopold Morse, one. 
 
 Rufns S. Frost, three. 
 
 Francis M. Weld, one. (Record, p. 10.) 
 
 In this manner the result was certified to the governor, and he issued 
 a certificate of election to Walbridge A. Field. Mr. Dean gave notice 
 of a contest under the statute of the United States, and the points 
 made by the contestant and the contestee, and the evidence taken, re- 
 late to the validity of the respective counts, except as to wards 16 and 
 18, and do not go to the merits of the case further than the counts 
 themselves, except that the depositions of some of the United States 
 supervisors and inspectors and of the aldermen were taken to show 
 that they had counted correctly. We are then, in the first place, to 
 determine which of the respective counts is the one made in pursuance 
 of law, and which this House must accept as valid and binding upon it, 
 in the absence of a contest going behind the face of the returns as they 
 appear by the respective counts. 
 
 As the count of the ward officers and that of the United States super- 
 visors both elect Mr. Dean, and as the aldermanic count would also 
 elect him unless the 25 votes cast for the "fourth district" are to be 
 counted for the sitting member, it may be proper first to consider what 
 disposition should be made of these 25 votes. 
 
 In the eighteenth ward of the city 25 ballots were cast designating 
 the Congressional office and candidate as follows: 
 
 " For Representative in Congress, fourth district, Walbridge A. Field, 
 of Boston." 
 
 The election was held in the third district, and Mr. Field resided 
 in the district in which he was a candidate. Ought these ballots 
 to be counted for the sitting member? The questions involved in 
 this point were ably discussed by counsel on both sides, and the author- 
 ities do not agree to such an extent as to leave the question entirely free 
 from doubt. But your committee are of the opinion that a liberal inter- 
 pretation of the law in the interest of enlarged suffrage and the honest 
 intentions of electors would warrant us in counting these ballots for the 
 candidate for whom they were evidently intended. 
 
 The election was in the third district. The electors of that district 
 had no legal right to vote in the fourth district, much less to vote in the 
 third district for a Representative for the fourth district. We must as- 
 sume, then, that the persons who cast these ballots intended no violation 
 of law, but that they were acting in good faith and were honestly en- 
 deavoring to express a choice for a Representative in Congress in the 
 district in which they were entitled to vote. The office to be filled was 
 that of "Representative in Congress." That is what the voter must 
 have looked to when examining his ballot. The words "fourth district"
 
 DEAN VS. FIELD. 193 
 
 do not constitute a part of the legal designation of the office, and in 
 this case we are inclined to regard the erroneous designation of the 
 number of the district as surplusage. 
 
 We are therefore compelled, in the first place, to decide this case upon 
 the validity of the respective counts, except as to wards 16 and 18, here- 
 inafter considered. 
 
 The aldermanic count was made, it is claimed, in pursuance of section 
 4 of the act of that State approved April 26, 1876, which is as follows: 
 
 SEC. 4. If within three days next following the day of any election ten or more 
 qualified voters of any ward shall file with the city clerk a statement in writing 
 that they have reasons to helieve that the returns of the ward officers are erroneous, 
 specifying wherein they deem them in error, said city clerk shall forthwith transmit 
 such statement to the board of aldermen or the committee thereof appointed, to ex- 
 amine the returns of said election. The board of aldermen, or their committee, shall 
 thereupon, and within five days, Sunday excepted, next following the day of election, 
 open the envelope and examine the ballots thrown in said ward, and determine the 
 questions raised : t'l-y shall then again seal the envelope, either with the seal of the 
 city or a seal provided for the purpose, and shall endorse upon said envelope a certifi- 
 cate that the same has been opened and again sealed by themin conformity to law ; and 
 the envelope, sealed as aforesaid, shall be returned to the city clerk. Said city clerk, 
 upon the certificate of the board of aldermen ortheir committee, shall alter and amend 
 such ward returns as have been proved to be erroneous, and such amended returns 
 shall -stand as the true returns of the ward. 
 
 This provision of the State law eould not have been intended to ap- 
 ply to the election of Representatives in Congress. There is but one 
 district in the State as now apportioned in which it could have been 
 made applicable, and that is the district in question. It is wholly with- 
 in the city limits of the city of Boston, and hence the machinery of the 
 section applied to it by mere accident. It cannot be presumed that a 
 law would have been framed by the legislature of Massachusetts pro- 
 viding for a review of the counts of votes cast for Representatives in 
 Congress, which law could not possibly apply unless all the voting pre- 
 cincts should be within the limits of a single city. For this reason, if 
 for no other, the section quoted has no application to Congressional elec- 
 tions. 
 
 Furthermore, it is claimed by the contestant that this law was not 
 even complied with in any essential provision. But your committee 
 are of the opinion that if the section had been strictly complied with, 
 the count made in pursuance of its provisions would not be valid as 
 against the count made by the ward officers and the United States 
 supervisors of election. The statements filed by the ten qualified voters 
 of each ward, as the basis for the aldermanic count, alleged generally 
 that the returns of the ward officers were erroneous in this, that they 
 did not correctly give the result. There was no allegation of fraud or 
 illegality of any kind. The election was conducted strictly in accord- 
 ance with law, and the count and public declaration of the result were 
 made as required by the State statute. 
 
 The duties of the United States supervisors in reference to the elec- 
 tion are prescribed by sections 2017, 2018, 2019 of the Revised Statutes 
 of the United States, which are as follows : 
 
 SEC. 2017. The supervisors of election are authorized and required to attend at all 
 times and places for holding elections for Representatives or Delegates in Congress and 
 for counting the votes cast at such elections ; to challenge any Tote offered by any 
 person whose legal qualifications the supervisors or either of them may doubt; to be 
 and remain where the ballot-boxes are kept at all times after the polls are open until 
 every vote cast at such time and place has been counted, the canvass of all votes polled 
 wholly completed, and the proper and requisite certificates or returns made, whether 
 the certificates or returns b.- required under any law of the United States, or any State, 
 Territorial, or municipal law, and to personally inspect and scrutinize from time to 
 
 H. Mis. 58 13
 
 194 DIGEST OF ELECTION CASES. 
 
 time and at all times, on the day of election, the manner in which the voting is done 
 and the way and method in which the poll-books, registry -lists, and tallies or check- 
 Looks, whether the same are required by any law of the United States, or any State, 
 Territorial, or municipal law, are kept. 
 
 SEC. 2018. To the end that each candidate for the office of Representative or Dele- 
 gate in Congress may obtain the benefit of every vote for him cast, the supervisors of 
 election are, and each of them is, required to personally scrutinize, count, and canvass 
 each ballot in their election district or voting precinct cast, whatever may be the indorse- 
 ment on the ballot, or in whatever box it may have been placed, or be found, to make 
 and forward to the officer who, in accordance with the provisions of section 20:25. has 
 been designated as the chief supervisor of the judicial district in which the city or 
 town, wherein they may serve, acts, such certificates and returns of all such ballots 
 as such officer may direct and require, and to attach to the registry-list and any and 
 all copies thereof, and to any certificate, statement, or return, whether the same or any 
 part or portion thereof be required by any law of the United States or of any State, 
 Territorial, or municipal law, any statement touching the truth or accuracy of the 
 registry, or the truth or fairness of the election and canvass, which the supervisors of 
 the election, or either of them, may desire to make or attach, or which should properly 
 and honestly be made or attached, in order that the facts may become known. 
 
 SEC. 2019. The better to enable the supervisors of election to discharge their duties, 
 they are authorized and directed in their respective election districts or voting pre- 
 cincts, on the day of registration, on the day when registered voters may be marked 
 to be challenged, and on the day of election, to take, occupy, aud remain in such posi- 
 tion from time to time, whether before or behind the ballot-boxes, as will, in their 
 judgment, best enable them to see each person offering himself for registration, or 
 offering to vote, and as will best conduce to their scrutinizing the manner in which 
 the registration or voting is being conducted; and at the closing of the polls for the 
 reception of votes, they are* required to place themselves in such position with the 
 relation to the ballot-boxes for the purpose of engaging in the work of canvassing the 
 ballots as will enable them fully to perform the duties in respect to such canvass pro- 
 vided herein, and shall there remain until every duty in respect to such canvass, 
 certificates, returns, and statements, has been wholly completed. 
 
 Congress, in pursuance of its constitutional power to make regulations 
 as to the times, places, and manner of holding elections for Representa- 
 tives in Congress, or t6 alter State regulations on these subjects, enacted 
 the foregoing provisions. They must be held valid and binding upon 
 all the States. 'From the moment of the enacting of these provisions 
 (February 28, 1871) they became a part of the election law of the State 
 of Massachusetts, overriding all opposing State statutes made or to be 
 made by the State, and the passage of the State law of April 20, 1876, 
 authorizing an aldermauic count, so far as it provided for the taking of 
 the final count of the votes for the Representative in Congress out of 
 the supervision and scrutiny of the United States supervisors of election 
 was an evasion if not a nullification of the Federal law. After Congress 
 had provided for the appointment of two supervisors of election for each 
 voting place, and had required such officers to count the votes for Repre- 
 sentative in Congress, and to remain with the ballot-boxes until the 
 count was wholly completed, and the certificates made out, it is not 
 competent for any State to provide another board of canvassers, who 
 may take possession of the ballot-boxes, exclude the Federal officers, and 
 secretly count the votes, and declare a different result. 
 
 As the counting of the votes is now admitted to be the most impor- 
 tant function to be performed in reference to an election, laws relating 
 to this part of the election machinery must be strictly construed and 
 rigidly enforced. The count made by the aldermen was made in secret, 
 three or four days after the election, partly in the night-time, aud the 
 United States supervisors, and all other persons except the three alder- 
 men, were excluded from the room, and were not permitted to see what 
 was being done. A count made under such circumstances is in deroga- 
 tion of the acts of Congress, and is ot no validity whatever. 
 
 In the foregoing considerations relating to this case, we have treated it 
 solely in reference to the validity of the respective counts. We had
 
 DEAN V!?. FIELD. 195 
 
 supposed that the validity of the aldermanic count would not be seriously 
 insisted upon : but since it has been urged in the argument of counsel 
 that the law of Massachusetts providingfor the aldermanic count is valid, 
 and the count made in pursuance thereof binding upon this House, we 
 will consider whether that law has been complied with in this case. The 
 f- Mirth section of the act of the legislature of Massachusetts, approved 
 April 20, ISTG. is relied upon as authority to sustain the count made by 
 the board of aldermen or their committee. As this section confers upon 
 tli- board of aldermen, or their committee, a special jurisdiction, it must 
 ; rictly construed, and such board of aldermen cannot proceed except 
 in strict accordance with the provisions of that section. 
 
 If the board of aldermen, or their committee, assume to act in a man- 
 ner different from that prescribed by the section referred to, their acts 
 are absolutely void. It will be observed that the board of aldermen 
 are not by the laws of Massachusetts a general returning-board. They 
 can only act in certain specified cases, and when the foundation for their 
 jurisdiction is laid. It is provided in said section that "if, within three 
 days next following the day of an election, ten or more qualified voters 
 of any ward shall file with the city clerk a statement in writing that 
 they have reason to believe that the returns of the ward officers are 
 erroneous. Kiwi/yiny icherein they deem them in error, said city clerk shall 
 forthwith transmit such statement to the board o"f aldermen, or the com- 
 mittee thereof appointed to examine the returns of said election." The 
 statement required by the ten qualified voters must specify wherein the 
 returns are in error. It is not sufficient to allege generally that the 
 count made by the ward officers was not correct, or that they counted 
 more votes for one candidate than he was entitled to, or less votes for 
 another than he received. 
 
 This petition constitutes the jurisdictional fact in the case, and un- 
 less it complies with the statute no jurisdiction is conferred on the 
 board of aldermen, or upon their committee, and all proceedings by 
 them not founded on a petition which complies with the statute are 
 utterly void and of no etfect. The rule of law applicable in such cases 
 is well established. McCrary, in his treatise on the American law of 
 elections (sec. 280), says : '-An application for a recount of ballots cast 
 at an election will not be granted unless some specific mistake or fraud 
 be pointed out in the particular box to be examined. Such recount 
 will not be ordered upon a general allegation of errors in the count of 
 all and giving particulars as to none of the boxes." (Kneass's case, 2 
 Parsons. .">0l ; Thompson vs. Ewing, 1 Brewster, 67, 97.) 
 
 In Skerret'a case .2 Parsons, 509) the court of common pleas of 
 Philadelphia held that the true rule "regulating such proceedings should 
 be defined, so as to advance on the one hand substantial and merito- 
 rious and to arrest on the other futile and querulous complaints. It 
 is not sufficient to state generally that A received a majority of votes, 
 while the certificate was given to B, and therefore the complainants 
 charge that there was an undue election. This is but a conclusion, and 
 it is not for the pleader to state conclusions, but facts from which the 
 court may draw conclusions. If fraud is alleged, the petition must state 
 Ihe manner in which the fraud was committed, the number of votes 
 fraudulently received or fraudulently rejected." (See Carpenter's case, 
 2 Parsons. 537; Lelar's case. 2 Parsons. 548; Kneass's case, 2 Parsons, 
 553.) 
 
 It was held also by the supreme court of Pennsylvania, in the case 
 of Gibbous vm. Shepherd (2 Brewster, p. 2), that certainty to a com- 
 mon intent was required, that the petition should not be so loosely
 
 196 DIGEST OF ELECTION CASES. 
 
 drawn as to permit the powers of sworn officers chosen by the people 
 to be inquired into without well-defined cause. McCrary, in section 283 
 of his work, says: " The same rule should be applied to a pleading of this 
 character that is applied to all other similar pleadings. It should state 
 in a legal and logical form the facts which constitute the ground of the 
 complaint. Nothing more is required, nothing less will suffice." The 
 supreme court of Illinois (1 Breese, 285) held " that an affidavit for a 
 writ of attachment which does not comply with the statute confers no 
 jurisdiction, and all subsequent proceedings are void." As the fourth 
 section of the Massachusetts act is held to confer the jurisdiction upon 
 the board of aldermen to count these votes upon the filing of a petition 
 specifying the errors, if such petition does not comply with the statutes 
 no jurisdiction is conferred. 
 
 The right of the board of aldermen or their committee to examine the 
 ballots is not to be exercised except in certain cases and in the manner 
 provided by the law above referred to. The statute gives no general 
 right to substitute an aldermanic count for a ward count. The powers 
 of the aldermen are limited to specified cases. Mr. Howland, city solic- 
 itor of Lynn (page 93 of the Eecord), in an opinion submitted to the 
 mayor and board of aldermen of that city on the 8th of November, 
 1876, in reference to a similar case, advised the aldermen that the peti- 
 tioners had failed to specify wherein they deem the returns to be in 
 error, and that in the absence of such specification there was no ques-' 
 tion raised for the aldermen or committee to determine. The legislature 
 of Massachusetts in a number of contested election cases adopted the 
 following rule (page 78 of the Eecord), in the case of Morse against 
 Lonnergan. The rule referred to is this: That in the absence of any 
 evidence of fraud in the manner of calling, holding, or conducting the 
 meeting at wbich the election is held, or in the manner of ascertaining 
 the result of the election, or unless the petitioner shows a reasonable 
 ground for supposing an error in the count other than the mere close- 
 ness of the vote, the committee will not recount the ballots. 
 
 The same rule was adopted in the case of Waldeu vs. Chadwell (Kec- 
 ord, page 79), and in the following contested-election cases decided by 
 the house of representatives of the State of Massachusetts (the opin- 
 ions in each case are printed at length in the Eecord) : Scribner vs. Keyes, 
 page 85; Garity vs. Crossraan, page 91; Graves vs. Edson, page 94 ; 
 Austin vs. Sweet, page 98 ; Burt vs. Babbitt, page 102 ; Thomas E. 
 Green, page 103, and Stiuipsou vs. Breed, page 110. By careful exam- 
 inations of the opinions in the foregoing cases recently decided in the 
 State of Massachusetts it will be seen that it is well settled that the 
 mere fact of a close vote will not justify a recount, either by the board 
 of aldermen or by a legislative committee. It thus appears that the lavr 
 in this class of cases is well settled by the Massachusetts legislature. 
 In the case now under consideration no error is alleged, except that more 
 votes were counted for one candidate than he was entitled to, and less 
 for the other than he received ; or, in other words, mere closeness of the 
 vote is the sole ground for the recount. The chairman of the sitting 
 member's committee testified (page 144 of the Eecord) that he knew of 
 no errors in the count when the petitions were prepared, but that as 
 Mr. Field was defeated according to the ward officers' and supervisors' 
 count, he could lose nothing by a recount, and might be benefited by it. 
 
 This being the sole reason of a recount of the ballots, and no specifi- 
 cations having been made upon which the aldermen could act, all their 
 proceedings in reference to such recount are without authority of law
 
 DEAN VS. FIELD. 197 
 
 and of 110 effect. The petition, which was signed by the ten voters of 
 each ward, was the same in each of the wards, and is as follows : 
 
 To the city clerk of the city of Boston : 
 
 The undersigned, qualified voters of ward 13, in the third Congressional district, 
 hen-by -tate That they have, reason to believe, that the returns of the ward officers of 
 said ward tor member of Congress in said Congressional district, at the election of Nov- 
 ember ?th, 187(i, are erroneous, in that all the ballots cast for Walbridge A. Field as 
 member ol' Congress were not eounted and credited to him, and that more ballots were 
 credited to Benjamin Dean as member of Congress than were cast for him; and they 
 I- a reeonnt of (he vote of said ward for member of Congress, in accordance with 
 tin 1 provision- of section 4 of chapter l<->< of the acts of the year 1676. 
 
 (Signed by 15 voters of the ward.) 
 
 This statement does not specify wherein the ward returns are in error. 
 It simply states that the signers have reason to believe that the returns 
 of the ward officers are erroneous, and that all the ballots cast for one 
 candidate were not counted, and that more ballots were cast for the 
 other candidate than he received. Nothing can be more general. The 
 petition simply states a conclusion, and no jurisdictional fact appears. 
 The statute, it will be remembered, authorizes the aldermen "to de- 
 termine the questions raised." The petition raises no question. It 
 simply concludes by asking for a recount of the votes. The law did 
 not authorize the petitioners to ask for a recount. It was the duty of 
 the board, or of their committee, to open the envelopes and examine 
 (not to count) the ballots thrown in said ward, and "determine the 
 questions raised." It will be observed that the word " examine" is used 
 in reference to the ballots, not the word " count." They were author - 
 iged simply to examine the ballots to determine the " questions raised." 
 
 This fact presupposes another equally important, to wit, that the pe- 
 tition raised specific questions, which could be determined by examining 
 the ballots, not by recounting them. As, for instance, the petitioners 
 might have alleged that fifty ballots were counted as straight Repub- 
 lican tickets, but that upon examining these ballots it would be found 
 that the name of Mr. Dean had been printed upon these tickets, and 
 that this fact was overlooked in counting the ballots; that they had 
 been counted simply as straight tickets. If such a specification had 
 been made an examination of the ballots would have determined the 
 question raised. Or the petitioners might have alleged in ward 18 that 
 twenty-five (25) ballots cast for Representative in Congress, fourth dis- 
 trict, for Walbridge A. Field, of Boston, were not counted for Mr. Field 
 by the ward officers, as they were required by law to count them, and 
 that said ballots were intended to be counted by the persons who cast 
 them for the said Walbridge A. Field for Representative in Congress, 
 third district. Such allegations as these in the petition would have 
 raised questions which could have been determined by an examination 
 f the ballots. Nowhere in the law of Massachusetts are the aldermen 
 authorized generally to make a recount of the ballots. Their authority 
 only extends to an examination of the ballots which may have been 
 specified in the petition, to determine the questions raised. 
 
 It will be observed by examining the fourth section of the law of 
 Massachusetts that jurisdiction is conferred upon the board of alder- 
 men, or their committee, to open the envelopes and examine the ballots 
 thrown ; and upon the certificate of the board of aldermen, or their com- 
 mittee, the city clerk shall amend the ward returns of the district. The 
 function of canvassing votes, referred to in this section, not pertaining 
 to the office of aldermen, the specific authority to the board of alder- 
 men, or to their committee, is such a jurisdiction as cannot be exercised
 
 198 DIGEST OF ELECTION CASES. 
 
 by both at the same time. The committee does not act as a committee 
 of the aldermen, responsible to the aldermanic board, and required to 
 report to it, but it acts upon the specific jurisdiction conferred upon it 
 by the statute, and when the committee takes jurisdiction of the case 
 it ousts the board of aldermen of the concurrent jurisdiction that it 
 might have. But notwithstanding this fact an examination of the record 
 in this case will show that the committee of aldermen, consisting of 
 three members, performed the functions of canvassers or examiners of 
 the ballots in this case ; that they agreed upon a report as to the result 
 of that count; that they then submitted their report to the board of 
 aldermen, and that the board of aldermen then took jurisdiction of the 
 case, amended the return as prepared by the committee, and submitted 
 a different return to the city clerk as the result of the aldernianic count. 
 
 The committee of aldermen having taken jurisdiction of this case, 
 could only report its proceedings to the city clerk, and the city clerk was 
 in duty bound to enter the report of the aldermen upon the record, or 
 to alter and amend the ward returns in the manner pointed out by the 
 committee of aldermen. Assuming that the committee had jurisdiction, 
 their acts were legal, and their finding was the.only one which the clerk 
 was authorized to enter as the result of such examination. But the clerk 
 did not do this. He entered up as the result of the examination of the 
 ballots, in pursuance of the authority conferred by the petition, an order 
 made by the board of aldermen of the city of Boston, which board had 
 not examined the ballots and had not determined for itself the questions 
 raised, and which, according to the letter of the law (the committee 
 having taken jurisdiction of the case), had no authority whatever to act 
 in the premises. Hence we hold that the pretended recount by the 
 aldermen was not made in pursuance of the law of Massachusetts, and 
 cannot be set up as a legal count of the votes for members of Congress 
 in the third Congressional district, as against the count made by tin- 
 ward officers and supervisors of the United States. 
 
 The laws of Massachusetts in reference to conducting and canvassing 
 elections must be construed together. It will be seen that every safeguard 
 has been thrown about an election in that State. Especially is it so in the 
 city jof Boston. Three inspectors of the ward elections are appointed by 
 the mayor ; three are elected by a vote of the people; and these, together 
 with the warden, who presides at the ward meeting, and the clerk, consti- 
 tute a board of eight persons, representingall shades of political sentiment, 
 an discomposed of persons selected in such a manner as to secure integrity 
 and fairnessin the conduct of the election, in tbecan visaing of the returns, 
 and declaration of the result. The election must be held openly. The 
 voting and counting are both done in the presence of the people. Every 
 opportunity is offered to carefully scrutinize the proceedings. The in- 
 spectors are required to count the votes while the election is progress- 
 ing, and to announce the result as soon as possible after the election, 
 and openly declare the result. In addition to these State provisions, 
 the United States supervisors, one of each political party, were present 
 at the election in question, and they also carefully scrutinized the bal- 
 lots and counted the votes in each of the wards. The testimony is all 
 to the effect that the election was honestly and (airly conducted in every 
 part of the city, and no frauds are anywhere alleged. The fairness of 
 a count made under sudi circumstances must be admitted by all, and 
 such a count ought not to be set aside without the very best of reasons, 
 founded upon the law and the facts. 
 
 On the contrary, the aldermanic count was made of the whole vote of 
 the district by three persons, who conducted their count in secret and
 
 DEAN VS. FIELD. 199 
 
 were not under any restraint in reference to the count or the declaration 
 of the result. A recount is always viewed with suspicion, and especially 
 so when the original count was entirely free from all allegations of fraud 
 or incompetency on the part of the election officers, and was conducted 
 in open daylight in the ]>: :' the voters. It is not pretended that 
 
 there was any fraud in this election, nor were any errors known to exist 
 when the petitions were signed. There was no reason on the part of 
 the petitioners, so far as the facts were concerned, to justify such belief. 
 The only reason that could have existed was that the sitting member 
 was not elected by the ward counts. He could not be elected without 
 a recount, and as the majority was small, he might, by a careful count, 
 by skillful manipulators of the ballots, overcome the small majority by 
 which the contestant was returned. To uphold a count under such cir- 
 cumstances would be to pervert both the letter and spirit of the law; 
 would be to encourage futile and querulous complaints and groundless 
 and frivolous contests. 
 
 The State law providing for the aldermauic count was wholly disre- 
 garded by the city clerk. The law requires that he should enter the 
 ward returns at length upon the records, and that such returns should 
 stand, except that he should alter and amend the ward returns in ac- 
 cordance with the certificate of the board of aldermen or their commit- 
 tee. It will be observed that the ward returns are continually kept in 
 view as the record of the votes cast. These ward returns, as amended 
 by the aldermen, must be certified by the clerk to the governor and 
 council of the commonwealth. But it will be observed by examination 
 of the record in this case that this part of the law has been wholly dis- 
 regarded. The clerk seems to have withheld the entry of any returns 
 upon his records until the receipt of the certificate from the board of 
 aldermen, when their return or count of the votes was entered upon the 
 I as the true return of the ward. We do not contend that the clerk 
 by his illegal conduct could invalidate the proceedings, but the board 
 of aldermen and the committee having acted without jurisdiction, and 
 the clerk having also acted without authority of law, their prodeedings 
 are all illegal and void, and the recount made by them and certified in 
 the manner shown is of no validity whatever. 
 
 There is in Massachusetts no county or other canvassing board. All 
 returns are sent to the governor and executive council, and the gov- 
 ernor and council examine the returns and determine who is elected. 
 The following are the provisions of the State law on this subject : 
 
 i'he votes in elections foi>natio;ial, State, county, and district officers shall 
 be received, sorted, and counted by the selectmen, and by the ward officers, and pub- 
 lic declaration made thereof in open town and ward meetings. The names of persons 
 voted for. the number of votes received for eac.h person, and the title of the office for 
 \vhirh lie i< proposed shall !>e entered in words at length by the town and ward clerks 
 in their i>- ords. The ward clerks shall forthwith deliver to the city clerk certified 
 copies of such records, who shall forthwith enter the same, in the city records. 
 
 . 17. City and town clerks shall, within ten days from the day of an election for 
 jrovernor. lieutenant-governor, councilors, senators, secretary . treasurer, and receiver- 
 general, auditor, attorney-general, Representatives in Con^re,ss. commissioners of in- 
 solvency, sheriffs, registers of probate and insolvency, district attorneys, or clerks of 
 courts. trai:sniit copies of the records of rhe votes, attest -d by them, certided by the 
 mayor and aldermen or selectmen and sealed up, to the secretary of the common- 
 wealth. 
 
 It will thus be seen that town clerks are to record in words at length" 
 *' the names of persons voted for, the number of votes for each person,, 
 and the title of the office for which he is proposed." Ward clerks are 
 to send copies of these records to the city clerks, who are forthwith to 
 record them in " words at length" in the city records, and the copies of
 
 200 DIGEST OF ELECTION CASES. 
 
 these records "in words at length" are to be sent to the secretary of 
 state, for the use of the governor and council. The records thus certi- 
 fied are the only legal records relating to elections. These are the rec- 
 ords that the committee of aldermen may by their certificate direct the 
 city clerk to amend whenever they have acted under authority of law 
 in amending the same. In this case there is no such record, nor has 
 any such record been kept by the clerk of the city of Boston. He never 
 recorded the ward returns as he was required to do. He made an ag- 
 ggreate statement of the vote (Record, p. 42) not in accordance with 
 the ward returns or the vote of the board of aldermen, and even this 
 entry was made eight days after the returns were filed with 'him. 
 
 Another fatal objection to the aldermanic count is that the committee 
 who examined these ballots never certified to the city clerk any amend- 
 ments of the ward returns. The committee was the only body to do 
 this. The board of aldermen merely passed a vote as to the form of the 
 certificate to the secretary of state, not to the city clerk ; and two of 
 the committee who examined the ballots voted against the return which 
 the board of aldermen directed to be made to the secretary of state. 
 Thus there was no certificate of any kind filed with the clerk upon 
 which he could alter thr ward returns, and the only action that the com- 
 mittee took in reference to amending the ward returns was reversed by 
 the board, and neither body certified any errors to the clerk. The vote 
 of the board was without jurisdiction, and the report of the committee,, 
 which alone could act in the premises, was never made to the clerk, and 
 the clerk never made any entries or corrections of ward returns in ac- 
 cordance with the findings of the committee that examined the ballots. 
 The whole proceedings, on the part of the committee, the board of al- 
 dermen, and the clerk, were without authority of law; and the recount 
 which is set up in this case as the product of such illegal proceeding* 
 is entirely invalid. The contestee bases his right to a seat in this House 
 upon the count made by the aldermen, and since we have shown that 
 the recount and all the proceedings upon which it is based are wholly 
 illegal and void, the contestee derives no title to his seat by reason 
 thereof. 
 
 We have treated the case so far as one depending wholly upon the 
 legality of the respective counts, but as to two of the wards in this dis- 
 trict we are not confined to the legality of the counts as such. The con- 
 testant and the contestee have gone behind the returns in wards 16 and 
 18, and have taken evidence in relation to the truth of the findings of 
 the official counts. It will be admitted by all that the House, when ex- 
 ercising its authority and jurisdiction to decide upon the elections, re- 
 turns, and qualifications of its members, is not precluded by the face of 
 the returns, but may, in its discretion, proceed to inquire into the valid- 
 ity of the election of any one of its members, and in such inquiry has 
 all the power of a court in cases of quo warranto. The fact that a per- 
 son has received a certificate of election to an office does not oust the 
 proper court of jurisdiction to try the title to the office. The certificate 
 is merely prima facie evidence of the election of the person holding it, 
 and this House may go behind the returns, and, upon the merits, find H 
 different result. (Ex parte Ellyson, 20 Gratt., Va., 10: McCrary, sees. 
 145, 349, 369, 379.) 
 
 If we assume for the sake of the argument that the aldermanic count 
 was legal and valid in the absence of evidence going behind the returns,, 
 still we may, by oral evidence, show that such return was not the true 
 result of the election in any one of the wards or in all of them. As be- 
 fore stated, in wards 16 and 18 the evidence in the record goes behind
 
 DEAN VS. FIELD. 201 
 
 the official counts, and a careful examination of this evidence will not 
 fail to establish clearly what was the true result of the election in said 
 wards, independently of the official counts. It is contended by the con- 
 testee that the United States supervisors are not such counting or can- 
 vassing officers as are, authorized by law to make a legal and valid can- 
 vass of the result of the vote in the wards where they act. The con- 
 testee insists that the United States supervisors had no other function 
 to perform than that of mere witnesses of the election, and that they 
 were simply authorized to be present, to look on, to count and canvass, 
 and make such notes as they might think necessary, but that they 
 were not authorized to make a return to any State officer or to this 
 House. It is contended that they were simply to be used as official 
 witnesses in cases of subsequent contests under the statute. Assum- 
 ing this view of their duties to be correct, it will be conceded that such 
 supervisors may be called as witnesses in this contest to testify in 
 regard to au} T facts within their knowledge relating to the election. The 
 ward officers, eight in number, under their official oaths, certified certain 
 returns as the true result of the vote cast in the several wards. 
 
 We may assume that each of these eight officers in each of the ten 
 wards of the city, if called to testify, would swear that the return 
 which they made was the true result of the election. Some of the in- 
 spectors were called and did so testify as to the truth of the ward re- 
 turns. The committee of three aldermen who examined the ballots, and 
 assumed to make a recount of them, were also sworn in the contest and 
 testified as to the manner in which they counted, and that their return 
 was believed by them to be true. If we cannot set off one return against 
 the other, and if the sworn statements of the persons who made these 
 returns are not to be weighed as evidence according to the number of 
 witnesses on either side, and if the counts are to stand upon their legal 
 basis solely with reference to each other, the evidence of the aldermen 
 and of the inspectors taken in the contest will not add anything to the 
 ralidity of the respective counts, or to the truth thereof. But the evi- 
 dence of outsiders, of others than the inspectors and aldermen, who 
 may have reliable information on this subject, may be considered as 
 corroborative or not of either of the counts. Let us, then, consider 
 what corroborative testimony there is in the record in reference to the 
 several counts. 
 
 In order that a clear understanding may be had of all the evidence- 
 token in the contest relating to the truth of the counts, we will repro- 
 duce from the record that portion of the evidence which will throw light 
 pou the subject. The evidence of Viles best states the methods and 
 ralue of the aldermanic committee's count. He testifies as follows : 
 
 Int. 8. How di<l the, committee proceed to count ? State fully and particularly all 
 ihat was done T A. Stebbins, being chairman of the committee, would take the box, 
 place it upon the table before us, take his knife and break the seal and open the box 
 in our presence, lay the ballots out upon the table, part at a time as required; he 
 would sort them out. count them in twenty-fives, pass them to me; I would count 
 them, hand them to O'Brien ; he would lay the packages on the end of the table, iu 
 packages of twenty-five at a time, one package across the other, so if there was an 
 error iu the count we could easily go back of the packages and correct it. Occasionally 
 I would find a package of twenty- four as it came from Stebbins. We were counting 
 for members of Congress, third district, in this way, and I would hand it back to Steb- 
 fcins, and he would recount it and place another ballot with it; and, occasionally, one 
 with twenty-six ; I would pass that to him, and one would be taken from it ; then I 
 would recount it, and pass it to O'Brien. I think, iu one or two instances, a package 
 would pass me, and O'Brien would detect the error. That was the modns operandi in 
 regard to all the ballots. 
 
 On the other hand, the following is the evidence and testimony re- 
 garding the correctness of the ward count in ward 16 :
 
 202 . DIGEST OF ELECTION CASES. 
 
 WARD-OFFIOER'S RETURN. 
 
 CITY OF BOSTOX: 
 
 At a legal meeting of the inhabitants of ward number sixteen in the city of Boston, in 
 the county of Suffolk, and Commonwealth of Massachusetts, qualified as the law directs, 
 holden in said ward on Tuesday, the seventh day of November, in the year of our Lord 
 one thousand eight hundred and seventy-six, for the purpose of giving in their votes 
 for one able and discreet person, being an inhabitant of district number three, to rep- 
 resent said district in the next Congress of the United States, the whole number of 
 votes given in as aforesaid were sorted, counted, recorded, and declaration thereof 
 made, as by the constitution and laws are directed, and were for the following per- 
 sons: 
 
 Walbridge A. Field had six hundred and twenty-one (621) votes. 
 Benjamin Dean had eight hundred and ninety-six (896) votes. 
 
 In testimony whereof the warden, inspectors of election, and clerk of said ward hav 
 hereunto set their hands the seventh day of November, in the year of our Lord one 
 thousand eight hundred and seventy-six. 
 
 ISAAC J. WETHERBY, Warden. 
 RANDALL G. BURRELL, 
 FRANK G. PARKER, 
 W. HARRY NEAL, 
 FRANCIS M. SMITH, 
 PATRICK M. DENON, 
 
 Inspectors. 
 CHARLES B. HUNTING, Clerk. 
 
 A true copy of original return, duly filed in city clerk's office. 
 Attest : 
 
 S. F. McCLEARY, 
 
 City Clerk. 
 
 United States Supervise' s Return. 
 
 BOSTON, November 8, 1876. 
 
 This is to certify that the undersigned persons have received the number of votes 
 affixed to their names in ward sixteen, Boston, on Tuesday, November the 7th, for 
 Representatives to Congress from the third Congressional district of Massachusetts. 
 Benjamin Dean, 897. 
 Walbridge A. Field, 621. 
 
 JOHN F. DALY, 
 ABRAHAM J. LAMB, 
 
 Supervisors. 
 
 The discrepancy of the vote between the ward officers' count and the 
 supervisor's count, instead of tending to impeach either count, is strong 
 evidence of their correctness, as it relates to Fitzgerald's vote, which was 
 evidently returned as it should have been by tbe supervisors, and not 
 by the ward officers. (See Daly's testimony in answer to cross interroga- 
 tory 5.) It was also erroneously not counted by the aldermanic com- 
 mittee, as appears by the minutes of Stebbins and O'Brien. Kow we 
 come to the testimony of the witnesses as to the results of the counting 
 of the ballots at the ward-room, and the manner and care of the count 
 ing: 
 
 Deposition of Abraham Lamb. 
 
 Int. 2. What office, if any, did you hold in ward 16 on November 7, 1876 f A. United 
 States supervisor of election, representing the Democratic party. 
 
 Int. 3. Did you attend at the polls on that day and faithfully discharge your duties 
 as such supervisor T A. I did. 
 
 Int. 4. Did you count the ballots cast for member of Congress carefully, and make a 
 true return of the number cast for each candidate to the chief supervisor ? A. Yes, air. 
 
 Int. 5. Did Mr. Daly, the Republican supervisor, also count the same ballots ? A. 
 He did. 
 
 Int. 6. Have you any doubt that you counted for Mr. Dean and Mr. Field all the bal- 
 lots actually cast for them, respectively ? A, I have none. 
 
 Int. 7. Did you know of any error or mistake being made in this ward on November
 
 DEAN VS. FIELD. 203 
 
 7, 1876, iii the count and return of votos cast for member of Congress ? A. No, sir ; I 
 did not. 
 
 Cross-examination by WILLIAM <1. RUSSKLL. Esq., of counsel for Mr. Field, the in- 
 cumbent. 
 
 Cross-int. 1. Did you discover any error in the count of the warden and clerk f A. 
 No. sir. 
 
 Cross-in t. 2. Did you remain till the ballots were put into the boxes and sealed upf 
 A. Yes, sir. 
 
 Deposition cf John F. Daly. 
 
 Interrogatory 1. Please state your name, age, residence, and occupation. Answer. 
 John P. Daly; thirty-six; 130 Castle street, ward 16, Boston; night-watchman for 
 Unfted S'ates Government at custom-house. 
 
 Int. 2, '.'hat office, if any, did you hold in ward 16 on November 7, 1876 ? A. United 
 rvisor of election, representing the Republican party. 
 
 Int. 3. Did you attend at the polls in ward 16 on November 7, 1876, and faithfully 
 discharge your duties as United States supervisor? A. To the best of my knowledge 
 and ability I did. 
 
 Int. 4. Did you count the ballots cast for member of Congress carefully, and make 
 a true return of the number cast for each candidate to the chief supervisor ? A. To 
 the best of my knowledge and belief I made an accurate count and returned the same 
 to the commissioner, the chief supervisor. 
 
 Int. 5. Did Mr. Lamb, the other supervisor, also count the same ballots f A. He did. 
 
 Int. 6. Have yon any doubt that you counted for Mr. Field all the ballots actually 
 cast for him ? A. None whatever. 
 
 Int. 7. Did you know of any error or mistakes being made in this ward on November 
 7, 1876, in the count and returns of votes cast for member of Congress? A. I don't 
 understand that question. (Question repeated.) None that I know of, except that I 
 have heard of the recount by the board of aldermen. 
 
 Cross-examination by WILLIAM G. RUSSELL, Esq., of counsel for the incumbent: 
 
 Cross-int. 1. How long did you remain in the ward-room on the day of election* 
 A. From the time the polls opened until the ballots were sealed and delivered; all day, 
 until quite into the evening; as late as six o'clock, if not later. 
 
 Cross-int. 2. Did you see the ballots put into the box and the box carefully sealed ? 
 A. Yes, sir ; I, in connection with the other supervisor, put them in myself; we both 
 put them in together. 
 
 Cross-int. :j. Were the ballots you put into the box the same that you had counted, 
 and no others ? A. Yes, sir. 
 
 Cross-int. 4. What were you doing during the day up to 3 o'clock p. m. ? A. Super- 
 vising the election ; watching to see that there was nothing wrong, deciding disputes 
 if occasion required it ; having an eye to the success of the Republican ticket, in a fair 
 way. 
 
 i'i .i-s-im. .">. Did you discover or suspect, or have any reason to suspect, that there 
 was any unfairness in the election in that ward, or any tampering with the ballots or 
 miscounting of the same, intentionally or otherwise? A. None at all whatever. It 
 wa,s one of the fairest elections I ever saw ; in fact, the only dispute we had all day 
 'ong was a case of dereliction of duty on part of the clerk or register of voters of the 
 city in not putting a man's name on the list who had paid his taxes; there was one 
 other case, which was corrected afterward, Fitzgerald's case. 
 
 Cross-int. 6. Who first counted the votes, and into what parcels were they made 
 su> ? A. The votes were first counted by the warden and clerk, and made up into 
 parcels of one hundred : the odd oiirs being left, fractions of a hundred. 
 
 Cross-int. 7. When did you as supervisors begin to canvass and count the ballots, 
 and how did you conduct your examination and count, and how did you dispose of the 
 ballots when counted ? A. I couldn't tell whafr hour we began; should think it some- 
 where in the neighborhood of three o'clock; that is, on fair recollection ; couldn't be 
 positive; it was in the neighborhood of that hour; after the warden and clerk had 
 counted the ballots they put the straight ballots into packages of one hundred each, 
 and the scratched tickets into like packages by themselves, and then we went over 
 each package to see if they were correct as to member of Congress, to see whether they 
 were in packages of one hundred or all straight one way or the other ; when counted 
 we tied them up in bundles of one hundred and the fractions by themselves, and tied 
 them with twine, and put them into the box. 
 
 Cross-int. 8. Did the supervisors or either of you discover some errors in the count 
 made by the warden and clerk ? A. We found the packages each containing a hun - 
 dred, and all straight as warden and clerk had counted them, and the same as to the 
 fraction in every instance. We had a warden who was very particular how we did 
 the work. 
 
 Cross-int. 9. Then your count was exactly in accordance with that of the warden 
 And clerk, was it f A. Yes, sir.
 
 204 DIGEST OF ELECTION CASES. 
 
 Deposition of Thomas McC. Babson. 
 
 Int. 3. Were you present at the polls in ward .16, on the 7th of November, 1876 ? 
 
 A. I was there all day, from before the polls were opened until after vote was declared, 
 except half an hour. 
 
 Int. 4. As far as you could see, did or did not the ward officers attend carefully to 
 their duties in receiving and counting the ballots ? A. They did. 
 
 Int. 5. Of what political party was the warden, and of what political party were 
 the inspectors? A. Warden was Republican : the inspectors belonged to both parties 
 some to one and some to the other. I think there were three Republican inspectors 
 and two Democrats. 
 
 Int. 6. Was or was not the warden careful and accurate in the discharge of his 
 duties? A. He was very careful. I think he was very partial to his own political 
 party in the discharge of his duties that day. I mean by that as regards receiving 
 Totes. 
 
 Int. 7. Do yon know of any reason to believe that the returns of the ward officers 
 were in any respect erroneous, or have you ever heard that there was any error made 
 by them? A. I have no reason to believe them erroneous. I have heard of no error, 
 except that I have heard the counsel for Mr. Dean say, within a day or two, thai the 
 claim was made that there was an error in the vote. I don't know whether I could 
 fay it was made by Mr. Field or not. What I heard was that the recount of the board 
 of aldermen disagreed with the count of the ward officers. 
 
 Cro^s-int. 9. Was any question as to the receiving of a vote raised during the day 
 in more than two cases? A. Yes ; in three at least, to my knowledge. 
 
 Cross-int. 10. Can you name the three cases? A. There was one case where by mis- 
 take a man's name had been checked but not voting; two cases, I think, where a man's 
 name was not on the ward-list, who claimed to have been registered. Fitzgerald'* 
 case was the first-named case; he was allowed to vote. 
 
 Croes-iut. 11. Are you aware of a discrepancy between the gross number of ballots 
 cast in ward 16 at that election, as the same was announced or said to be announced by 
 the warden, and the number of ballots as ascertained by adding the numbers of votes 
 cast for all the several candidates for the several offices? A. I have heard within a 
 few days about there being some discrepancy. I had the vote as it was announced, 
 bnt have lost it; the vote was very large; all but about thirty of those registered were 
 said to have voted. I do not recollect the. exact number. 
 
 Cross-int. 12. If you had found such discrepancy of twenty votes would you con- 
 sider it as in any way affecting the question of the propriety of a recount? A. I 
 should have before having heard so many election cases this winter; now I shouldn't 
 xpecktiny precise agreement as to the votes for any candidate on the ticket and th 
 whole number of votes cast. I shouldn't suppose the number of votes for two oppos- 
 ing candidates would add up the same as whole number of votes cast in the ward. 
 
 Cross-int. 13. If the ward officers announced that there were 1,537 ballots thrown, 
 and if all the ballots for all the candidates for member of Congress were returned as 
 1,517, and all the ballots for all the candidates for governor were returned as 1,527, 
 would you not see in these facts some reason for distrusting the count, and for grant- 
 ing a recount if asked for? A. No; there was much dissatisfaction with Mr. Field 
 Among the members of the. Republican Battalion in the ward, and I expected that 
 many of the members of that organization would vote for the Republican candidate 
 for governor and would not vote for Field. 
 
 Cross-int. 14. If the ward officers announced that there were 1,537 ballots thrown, 
 and if all the ballots for all the candidates for member of Congress were returned as 
 1,527, and all the ballots for all the candidates for governor were returned as 1,517, 
 would yon not see in those facts some reason for distrusting the count and for grant- 
 ing a recount if asked for? A. I should not. The only thing that would have sur- 
 prised me, would cause me to doubt its correctness, would have been to have found 
 the total Presidential votes to have fallen materially short of 1,537. 
 
 Deposition of Charles B. Hunting. 
 
 CHARLES B. HUNTING, a witness for Walbridge A. Fiekl, the incumbent, being first 
 duly sworn, in answer to interrogatories proposed by J. LEWIS STACKPOLE, Esq., of 
 counsel for the incumbent, testified as follows, viz : 
 
 Interrogatory 1. State your name, age, residence, and occupation. Answer. Charles- 
 
 B. Hunting; forty-one; Boston, Mass. ; ward 1C; clothing dealer. 
 
 Int. 2. Were you acting as clerk of ward 10 at the election of November 7. 1876 ? 
 A. Yes, sir. 
 
 Int. 7. State who acted as United States supervisors in said ward at said election. 
 A. John F. Dally and Abraham J. Lamb. 
 
 Int. 8. State whether said supervJMors personally scrutinized, canvassed, and counted
 
 DEAN VS. FIELD. 205 
 
 the ballots for Representative to Congress cast in said ward at said election. A. 
 They counted them; eaifr tell how carefully they scrutinized them. 
 
 Cross-examination resumed : 
 
 Reeross-int. 0. Yon counted all the ballots in your ward as carefully as possible, did 
 you not ? A. Ye-, sir. 
 
 Recross-int. 7. Did you not believe, after the count was finished, that the returns 
 made by you to the city hall represented the true number of ballots cast in your ward 
 for Mr. Dean and Mr. Field, respectively f A. I did. 
 
 Recross-int. 8. Don't you now believe the count made by you is the true count of 
 the von s ca>t for Mr. Dean and Mr. Field, respectively? A. I believed it then, and 
 believe it now. 
 
 Deposition of Patrick M. Denon. 
 
 Int. '2. What office, if any. did you hold in ward 16 on November 7^ 1876? A. In- 
 spector. 
 
 Jnt. 3. Were you present at the polls during the day, and did you attend to your 
 duties as inspector! A. Yes, sir; I was there from the time they opened until they 
 closed, and everything was counted and sealed and delivered to the man to be carried 
 to city hall. 
 
 Int. 4. How many of the ward officers in ward 16 were Republicans and how many 
 Democrats? A. Two inspectors and clerk were Democrats, and the warden and four 
 inspectors were Republicans. I think there were four, two appointed and two chosen. 
 
 Int. 9. How was the election conducted on November 7, 1876, by the ward officers in 
 said ward? A. Very straight, honorable, and correct, as far as I could see; each party 
 watched each other very closely, and I haven't heard of any dishonest action on 
 either side. 
 
 Int. 10. Have you ever heard of any error having been made in that ward in the 
 count of votes for any candidate voted for? A. I hearda rumor since election day of 
 an error being made. I understood that Mr. Dean's vote didn't correspond with the 
 check-list and ballots in the ward-room after being counted by the aldermen; that it 
 wasn't ronvet as we made it out at the time. 
 
 Int. 11. Before the recount was made by the aldermen, did you hear or know of any 
 error being made in the count of votes in ward 16? A. After they had counted the 
 ballot.- and the inspectors the check-list, there was a variation of one or two votes be- 
 tween them, and we counted the ballots two or three times I did myself, and others 
 to see if we could discover the error, and afterwards the clerk and warden told us they 
 had discovered the error and corrected it. This was after the polls were closed and 
 before they had made up their accounts. 
 
 Int. 12. What was the whole number of votes cast in ward 16 on November 7, 
 1376? A. Fifteen hundred and thirty-seven, as I got it. 
 
 lut. 13. How did you obtain that namberl State all the circumstances A. After 
 the polis were closed, as the clerk and warden were filling out the votes for different 
 candidates, I took this slip of paper and copied the different candidates' votes on it as 
 I got it from the warden and clerk as they were putting them down on the list to be 
 returned to city hall. I mean whole number of ballots cast in the ward. 
 
 Int. 14. Whether or not there were many "stickers" or "pasters" used on the day 
 of election ? A. Something I noticed unusual on that day ; sojmany cut off the top of 
 the Republican ticket, containing the President and Vice-President and electors, and 
 pinned it over the top of Democratic ticket. 
 
 Cross-examination by WILLIAM G. RUSSELL, Esq., of counsel for the incumbent 
 
 Cross-int. 1. Will you produce and annex to this deposition thye memorandum from 
 
 which you have testified to the whole number of ballots cast inward 16 on November 
 
 7, 1876 ? A. I produce it ; that is as I got it at the time. (The same is annexed, 
 
 marked "W. W. 1.") 
 
 Cross-int. 2. In whose hand writing is it and when was it made ? A. In my own; it- 
 was made after the polls closed, while they were filling out the list to send to city hall. 
 Cross-int. 3. From whom did you derive the number of votes against each name on 
 the memorandum? A. Part of the time Mr. Wetherbee, the warden, would tell me, 
 and part Mr. Hunting, the clerk, just as I happened to ask either. 
 
 EXHIBIT W. W. 1. 
 
 C Madden 872 
 
 rp ;1 , j Babson 855 
 
 Tllde M Feith 607 
 
 ^Filkins 573 
 
 Senatorial Gen. Courts : 
 
 John Noble 1,514
 
 206 DIGEST OF ELECTION CASES. 
 
 Whole number of votes thrown 1. 537 
 
 Baker 41 
 
 Counselor - 
 
 Packard 602 
 
 Toland ^<>2 
 
 Shitleff - ->46 
 
 Mailing 975 
 
 Rie. 
 
 Adams 883 
 
 Tilden *>9 
 
 Hayes 625 
 
 Field 585 
 
 Dean 39G 
 
 It will be seen by the foregoing evidence in relation to ward 16 that 
 the ward officially returned for Walbridge A. Field 621 votes; for Ben- 
 jamin Dean 896. The supervisor's returns show the same, except that 
 Mr. Dean was given one more vote. This is explained by the evidence 
 and is a strong proof of the correctness of the count. In this ward the 
 aldermanic count was as follows : 
 
 Benjamin Dean 889, or 7 votes less than the ward returns; Walbridge 
 A. Field, 625, or 4 votes more than the ward returns; making a differ- 
 ence of 11 against Mr. Dean. As the aldermanic count elects Mr. Field 
 by only 5 majority as a whole, if it be proven that the aldermanic count 
 is incorrect as to ward 16, and that the ward count is the true result of 
 the votes cast, then the contestant in this case is elected by a majority 
 of 6 votes. The United States supervisors must be regarded as either 
 official canvassers with authority to make a count binding upon this 
 House, or they must be regarded as official witnesses placed in the posi- 
 tion to obtain all the facts, or, as the statute says, so situated that all the 
 facts may become known through them, " and to the end that such can- 
 didate for the office of Representative in Congress may obtain the bene- 
 fit of every vote for him cast." As official witnesses, their deposition* 
 are in the record. They were selected by each of the parties to the con- 
 test, or by their respective political friends. It is presumed that they 
 were, in view of the importance of this election, selected with a special 
 reference to their fitness for the duties they were required by law to 
 perform. 
 
 Having been designated by the contestant and the contestee them- 
 selves to act as such witnesses, through the appointment of the circuit 
 court of the United States, both contestant and contestee are estopped 
 from impeaching the witnesses or discrediting their evidence. The depo- 
 sitions of these supervisors have been taken under the statute in the 
 election contest. They were subjected to cross-examination by counsel; 
 their evidence as to the truth of the returns made by the ward officers 
 is of the very highest character of evidence known to the law. They 
 do not testify on information or belief, but from personal knowledge of 
 the facts about which their testimony was taken. They were legal wit- 
 nesses. They were present for the very purpose of learning the very 
 fact in issue in this case, namely, whether the contestant or the con- 
 testee received a given number of votes in the ward where they were 
 required to scrutinize and count the votes by law. They did so scruti- 
 nize the ballots and count the votes, not only under the solemnity of 
 their oaths at the time, but in the contest where they are subjected to 
 cross-examination by the coutestee's attorneys they reiterate the truth 
 of their former statements, and upon the information and knowledge of 
 the facts which they then obtained. This evidence is not contradicted. 
 It is unimpeached. It is absolutely conclusive as to the facts stated 
 by them. It may be stated that the aldermen also testified that their
 
 DEAN VS. FIELD. 207 
 
 count was correct. This is true ; but the inspectors of the ward and 
 the clerk also testified to the truth of the ward returns, and we have a 
 right to set off two inspectors and a clerk who counted the ward re- 
 turns, and their oaths, against three aldermen who made the aldermanic 
 count and their oaths. Then we have the preponderance of evidence 
 in favor of the truth of the ward returns. Not only did the supervisors 
 testify to the fairness of this election, but Mr. Babsou, a gentleman "of 
 intelligence and a candidate for the legislature, who was present most 
 of the time, also testifies to the fairness of the election and to the 
 evidence of the correctness of this count in ward 16 by the inspectors 
 and supervisors. The marshal, who was present, also testifies that 
 everything was fairly conducted, and the counts were made by the super- 
 visors, as they have testified themselves. In view of the evidence in this 
 ease as to the truth of the count by the ward officers and the super- 
 visors, can there be any doubt in the mind of anyone as to the truth of the 
 returns made by the ward officers of ward 16 ? It has been proven that 
 ward ] 6 must be counted as returned by the ward officers. If we allow 
 the aldermanic count to stand as to the other wards, this change elects 
 the contestant by a majority of 6 votes. 
 
 Let us now consider the evidence regarding the ward count in ward 18. 
 
 WARD 18 WARD OFFICERS' RETURN. 
 
 W. W. L. 
 CITY OF BOSTON: 
 
 At a legal meeting of the inhabitants of ward No. 18 in the city of Boston, in the 
 connty of Suffolk, and Commonwealth of Massachusetts, qualified as the law directs,, 
 holden in said ward on Tuesday, the seventh day of November, in the year of our 
 Lord oue thousand eight hundred and seventy-six, for the purpose of giving in their 
 rotes for one able and discreet person, being an inhabitant of district No. 3, to repre- 
 sent said district in the next Congress of the United States, the whole number of votes 
 given in, as aforesaid, were sorted, counted, recorded, and declaration thereof made, 
 as by the constitution and laws are directed, and were for the following persons : 
 Walbridge A. Field had fourteen hundred and ten. 
 Benjamin Dean had five hundred and seventy-nine. 
 
 For member of Congress, fourth district, Walbridge A. Field had twenty-five.J 
 In testimony whereof the warden, inspectors of elections, and clerk of said ward 
 have hereunto set their hands the seventh day of November, in the year of our Lord 
 one thousand eight hundred and seventy-six. 
 
 B. E. COLE, Warden. 
 CHARLES E. FOX, 
 ALBERT C. POND, 
 W. H. CHIPMAN. 
 WM. H. THOMAS, 
 
 Inspectors. 
 JOHN ALBREE, Clerk. 
 
 A true copy of original return duly filed in city clerk's office. 
 Attest : 
 
 S. F. McCLEARY, 
 
 City Clerk. 
 
 WARD 18. SUPERVISORS RETURN. 
 18. H. L. H. 
 
 This is to certify that we, the subscribers, supervisors of the vote of ward eighteen, 
 city of Boston, have examined and counted the votes cast for Representative for mem- 
 ber of Congress of the third district, with the following result : 
 
 Whole number of votes, 1,989. 
 
 For Walbridge A. Field, 1,410. 
 
 For Benjamin Dean, 579.
 
 208 DIGEST OF ELECTION CASES. 
 
 Twenty-five additional votes cast for Walbridge A. Field, of fourth district, not 
 counted ; left for decision of Committee on Elections, 
 u'ct fully submitted. 
 
 WILLIAM SWINSON. 
 DANIEL P. SULLIVAN. 
 To Hon. HENRY L. HALLETT, 
 
 Chief Supen-isor of Elections for District of Massachusetts. 
 
 BOSTON, November 7, 1876. 
 
 The following is the oral testimony regarding the counting of ballots 
 in ward 18 : 
 
 Deposition of William Sicinson. 
 
 Interrogatory 1. Please state your name, age ; residence, and occupation. Answer. 
 William Swinson ; fifty-nine ; 76 Rutland street, ward 18; merchant; am out of busi- 
 ness now. 
 
 Int. 2. What office, if any, did you hold on November 7, 1876? A. United States 
 supervisor in ward 18, to represent the Republican party. I had lived in the ward 
 thirty-five years ; have been warden and inspector when it was old ward 11 ; have not 
 been much of a politician since the old Whig party. 
 
 Int. 3. Did you attend at the polls on that day, November 7, 1876, and discharge your 
 duties f A. I did. 
 
 Int. 4. Did yon carefully count the ballots cast for Representative to Congress in that 
 ward T A. I did. 
 
 Int. 5. Did Mr. Sullivan, the other United States supervisor, also carefully count 
 the same ballots T A. I think he counted a good part, or was there present most of 
 the time. I can't say whether he personally counted all the votes ; I have an impres- 
 sion that he did. 
 
 Int. 6. What ward officers counted the ballots for member of Congress f A. The 
 warden ; I think only one person at a time, with the assistance of the clerk ; they kept 
 a very correct method, a regular debit and credit account, so that there was no chanee 
 for mistakes. One inspector also counted, and as they were counted they were passed 
 to our table and we counted. The whole counting was done by two persons at a time ; 
 the others were attending at the boxes. 
 
 Int. 7. Did the counts made by you and Mr. Sullivan agree with that made by the 
 ward officers ? A. They did. 
 
 Int. 8. How long have the warden and clerk been ward officers in ward 18 f A. 
 That I cannot state positively ; I think three years. 
 
 Int. 9. Were they or not persons fitted for performing the duties required of a warde* 
 and a clerk f A. I think they were ; have no doubt of it. 
 
 Int. 10. Have you or not ever heard of any error or mistakes being made by them, 
 or by the supervisors, on November 7, 1876 T A. No ; I have not. 
 
 Deposition of Daniel P. Sullivan. 
 
 DANIKL P. SULLIVAN, a witness on behalf of Benjamin Dean, contestant, being first 
 duly sworn, in answer to interrogatories proposed by S. A. B. Abbott, esq., of counsel 
 for the contestant, testified as follows, viz : 
 
 Interrogatory 1. Please give your name, age, residence, and occupation. Answer. 
 Daniel P. Sullivan ; twenty-seven ; ward 18, Northampton street, Boston, Mass. ; 
 wood-carver. 
 
 Int. 2. What office did yon hold in ward 18 on the 7th day of November, lc(76f 
 A. United States supervisor, on behalf of Democratic party. 
 
 Int. 3. Will you describe as fully as you can the manner in which the votes cast in 
 that ward for member of Congress on November 7, 1876, were counted by you and the 
 other officers in that ward T A. The system was, the warden, clerk, and one of the 
 inspectors did the counting. The warden and clerk were present at the counting of 
 each lot taken out, and the inspector was absent when one lot was being counted. 
 After they counted all the ballots for all the candidates on tin- tickets they tied the 
 ballots together ; they had the Republican ballots in one lot and the Democratic in 
 another and the Prohibition in another, aud they tied a string around each bundle 
 and marked on each bundle, on a ballot, the vote for Mr. Dean and for Mr. Field ; then 
 they were handed to the supervisors, Mr. Swinson and myself. Mr. Swinson would 
 count the ballots and I woulil watch him, and after he got through he would hand 
 them over to me and he would watch me counting. In some cases I counted them 
 over two or three different times to see if the figures compared with the ward officers' 
 count, and each time I found them to be correct.
 
 DEAN V 1 *. FIELD. 209 
 
 Int. 4. How carefully did you and Mr. Swinson count the ballots, and how certain 
 
 arc you of tin- accuracy of tin- returns made by you and Mr. Swiusou as supervisors, 
 -and by the ward officers ' -A. In. every case, as I stated bi-fore, Mr. Swinsou would 
 count and I would count, and sometimes I would ;i> over them two or three times to 
 see if there was a single error, and every time they would tally with the, ward officers'. 
 I am certain it' there w:is any error in the count, or any tampering with the votes, it 
 must have been done by other parties than the ward officers or the supervisors. 
 
 Tut. ."). Of what political party were the ward officers of ward 18, and how carefully 
 and accurately did they count the ballots* A. Mr. Thomas, one of the inspectors, 
 calls himself a Democrat. A gentleman named Hubcock, who was one of the inspec- 
 tors, is a sound Democrat. There wns another one, named Fox, who talked a little 
 like a Democrat. I don't know what his ereed was. He talked that Mr. Field was 
 not entitled to those twenty-live \otes for fourth district. Neither of these had any- 
 thing to do with counting the ballots; they merely stood at the check-list ; the others 
 I could not say what they were; I suppose they were Republicans. I noticed they 
 fought pretty well for Mr. Field. 1 don't know how carefully they counted; I know 
 their tally always agreed with Mr. Swinson's and myself. I should say they were as 
 competent a set of ward officer* as 1 ever saw. 
 
 Mr. Thomas says (int. o, Record, p. 75) that "the warden and clerk 
 of ward 18 belonged to the Republican party," that "they were per- 
 fectly competent, reliable persons," and that "they very carefully dis- 
 charged their duties" on the day of election. 
 
 lie also says that he never heard of any mistake being made in that 
 ward. 
 
 Mr. Dickinson, the chairman of Mr. Field's district committee, and a 
 voter in ward 18, saj's (Record, p. 144) that he never knew of any 
 mistake being made by the ward officers other than that supposed to 
 have been discovered by the recount made by the aldermen, and that 
 he signed a petition for a recount because he "believed after the returns 
 of the ward officers were all in that Mr. Field might be benefited by a 
 recount, and certainly knew he could not be declared elected without a 
 recount." His experience as the chairman of a political committee had 
 taught him that, when a person had failed of an election upon a count 
 made by sworn officers of both political parties, in the presence of the 
 candidates and of their friends, he might succeed upon a recount made 
 by three aldermen, sitting with closed doors and excluding the officers 
 charged by the law of the United States with the supervision of the 
 count. 
 
 Mr. Alden Avery (Record, p. 150), who distributed ballots bearing 
 Mr. Field's name all day, does not know of any error being made by the 
 ward officers of ward 18 in their count. 
 
 John Albree, the clerk of ward 18, called by the returned member, 
 testifies (Record, p. 167) as to the regularity of the proceedings in that 
 ward, and says that United States supervisors "personally scrutinized, 
 canvassed, and counted all the ballots for Representative to Congress 
 cast in said ward at said election." 
 
 This last witness and Mr. Cole, the warden, were examined ex parte 
 by the returned member after the testimony in rebuttal had been put 
 in j but even then not one word is elicited from either of them to show 
 that the greatest care had not been used in counting the ballots in the 
 ward, or to show that the slightest doubt or suspicion had ever been 
 entertained by any person whatever in regard to the accuracy of the 
 first count. 
 
 In these two wards, then, it appears, after calling all the persons of 
 both political parties who would be apt to know of an error, if any had 
 been made, that the only reason which can be alleged for doubting the 
 accuracy of the original counts is that they did not agree with the alder- 
 men's recount. What is there, then, in the aldermen's recount which i 
 H. Mis. 58 14
 
 210 DIGEST OF ELECTION CASES. 
 
 entitled to be received in the place of the ward returns! It has been 
 shown that this recount was not authorized by the State law, as inter- 
 preted by the State legislature; it has been shown that the result of the 
 recount by the aldermen has never been legally certified to the city 
 clerk, that none of the proceedings in regard to it were in conformity 
 with the provisions of the law, and that it must stand or fall upon its 
 own merits, like any other unauthorized recount. 
 
 From this evidence it will be seen that the ward officers gave, in ward 
 18, Walbridge A. Field 1,410 votes, and Benjamin Dean 579 votes. 
 The supervisors' return is exactly the same. In this ward, as in the 
 other, the two supervisors, Mr. Swinsou and Mr. Sullivan, ti stify that 
 they counted the votes and scrutinized the ballots carefully, with the 
 result indicated. There is no allegation on the part of any one that 
 there was any fraud practiced at this ward, and there was no dispute 
 even as to the correctness of the count, except as to the 25 votes for 
 Walbridge A. Field, fourth district. It appears by the testimony also 
 of the clerk of this ward that the United States supervisors did person- 
 ally scrutinize, canvass, and count the ballots for Eepresentative in Con- 
 gress cast in said ward. The supervisors so testify themselves, and ad- 
 here to the truth of their count. Viewing their evidence, then, simply 
 in the light of that given by official witnesses, it has more validity even 
 in that view than their official return would have ; for, as an official re- 
 turn, we might go behind that and show it to be untrue, but. as official 
 evidence given in the contest by witnesses of acknowledged integrity 
 and unimpeached character, and undisputed by any other evidence taken 
 in the contest, we are bound to believe and accept as conclusively proven 
 their statements. 
 
 The foregoing evidence taken in the contest clearly establishes the 
 truth of the ward returns in wards 16 and 18. But there is other evi- 
 dence in the record tending to prove the same facts, and to this we may 
 also direct attention. The law places the burden of proof upon the 
 contestee to show that the ballots have not been tampered with between 
 the ward counts and the recount by the aldermen. This has not been 
 done. On the contrary, in ward 16 there was opportunity to tamper 
 with the ballots in the ward-room after they were counted and before 
 they were sealed. 
 
 C. B. Hunting, on page 165 of the record, testifies as follows : , 
 
 Crose-int. 1. What was done with the ballots from time to time during the day alter 
 they were counted ? A. They were laid upon the table. 
 
 Croes-iut. '2. When were they first put into the envelope ? A. In the afternoon ; not 
 all of them; we would roll them up in hundreds, and in the afternoon we rolled up 
 some of the piles together, to get them out of the way, put a string around them, and 
 put them in the box, which sat behind the table; in the original box that was sent 
 up for that purpose ; same box they are in now. Dr. Weatherbee, the warden, and I 
 HUT together at the table, and had charge of the ballots. I can't tell exactly whether 
 they were laid on the window-sill or in the box, which sat there with cover open ; the 
 window-sill and box were behind us and the table in front of us, and part of the votes 
 tied up in hundreds were put on the window-sill, the window being closed, after they 
 had been counted. 
 
 Cross-int. 3. Who rolled the ballots up in hundreds? A. I tied them up, and three 
 (i tour c-ounted them, and they would mark their names m, the hack of them, certify- 
 ing They were correct. 
 
 Crobs-int. 4. You have stated, in answer to interrogatory 3, that the tacts stated in 
 your certificate were true: do you mean by that to say anything more than that you 
 supposed the facts were true at the time yon made, the certificate, and that you put 
 into the box what you supposed were all the ballots east in ward lt'> ' A. S T o, only 
 what I supposed to be true at tin- time. 
 
 Cross-in t. , r >. All you mean to say. then, in that you put into the box the ballots you 
 found at the end of the day in the place where you had from time, to time put the 
 ballots which had been counted f A. Yes, sir.
 
 i IKLD. 211 
 
 Mr. BabMin. oil pages 7_J and T.'l of the m-ord, testifies that not only 
 tin- chief marshal but the other marshals were behind the rails as much 
 51^. an hour before the result was declared and after the counting was 
 completed. His testimony is as follows: 
 
 . 4. Where were the other marshals (hiring the day ? A. I do not know all 
 of them ; thus, whom I <!o know were in the ward-room. I do not think any of them, 
 with tin- exception of Mr. YVilkins. u .[ l.ehiud the rails until the votes were roimtcd. 
 when I think some of them were. 
 
 Cross-in!. .">. When was that? A. From shortly before the polls closed until the vote 
 wan declared, -which. I should - .iliont half past five: polls dosed at half p.:-i 
 
 lour. 
 
 It is certain that the ballots had become changed in the same wa\ 
 after they were counted by the ward officers. The ward officers return 
 in words at length one ballot cast in ward i'l for Samuel D. Smith for 
 Member in Congress. There can be no doubt but that this ballot wa.s 
 cast and counted in said ward; but the aldermen's committee found no 
 sucl) ballot. What had become of it ? The same is true of a ballot for 
 A. Field in ward 10. Wliat had become of that ? The aldermen found 
 one for Leopold Morse and two for Kufus S. Frost in ward 10, and one 
 for Kufus S. Frost in ward is. Also cue for Francis M. Weld in ward 
 20, and one for Win. A. Field in ward 10. How came they there? On 
 pages 137 and L">S of the lecord Mr. Viles testifies to a box containing 
 envelopes coming open while it was being handled and while in the city 
 lerk's custody. One interrogatory and answer is as follows: 
 
 Cross-int. ~>. As far as you cau tell from the appearance of the box it might have 
 been opened and all the ballots examined after it had been sealed by the committee, 
 aight it not ? A. \ 
 
 lu addition to this, the testimony is that stickers or pasters (that is. 
 the names of the candidates printed on separate pieces of paper) were 
 used in great quantities and pasted over the names of the rival Con- 
 gressional candidates. The testimony also is that these stickers or past- 
 ers came off in some cases. And there is a great probability that some 
 did come off after they were counted in the ward-room and before the 
 counting of the aldermanic committee. 
 
 On pages 152-'3 of the record Alderman O'Brien testifies that there 
 were a few loose stickers in the boxes with only the names of the can- 
 didates on them, the office not being indicated, but the names did not 
 appear to be the names of the contestant or contestee. In some of the 
 wards the changes by the coming off of stickers between the two counts 
 apparent that to state the facts is to prove the case. In ward 21 
 the ward count was : 
 
 IV: I Ion jam in l.><-an 547 
 
 For Walbridge A. Field 1, 331 
 
 By the recount : 
 
 For Benjamin Dean 545 
 
 Vaiiu-idjie A. Field 1,333 
 
 By which Mr. Dean loses two votes and Mr. Field gains two, making 
 a change of four votes against Dean. This can only be explained by 
 the falling off of two stickers having Mr. Dean's name upon them, which 
 would leave the ballots to be counted for Mr. Field. 
 
 In ward L'4 the ward count \\as: 
 
 For Benjamin Dean t*;f, 
 
 Foi Walliridg-e A. Field 1,361 
 
 By the recount : 
 
 For Benjamin Dean o93 
 
 For Wai bridge A. Field 1,362
 
 212 DIGEST OF ELECTION CASES. 
 
 A difference of three votes against Mr. Dean. It is probable that 
 one of these pasters came off which was over Mr. Field's name, and on 
 one of the ballots the name of Mr. Field had doubtless been erased 
 before the paster had been placed over the name. For these reasons 
 the ward count is more reliable than the recount, and appears to be a 
 true representation ot the ballots actually cast. 
 
 Mr. McCrary (section 278 of his work on elections) says : 
 
 Before the ballots should be allowed in evidence to overturn the official count and 
 return, it should appear affirmatively that they have been safely kept by the proper 
 custodian of the law, that they have not been exposed to the public or handled 
 by unauthorized persons, and that no opportunity has been given for tampering with, 
 them. If this is believed to be a rale founded upon the presumption that a fraud or 
 a crime has been committed, the answer is that the rule does no more than to make. 
 choice between two presumptions of law, which in this instance come in conflict and 
 cannot both prevail. In such case the question is. which is the stronger, the more 
 reasonable, and the safer presumption? And inasmuch as the ballots are counted by 
 the board of canvassers immediately upon the closing of the polls, and generally 
 before there has been an opportunity for tampering, and when it cannot be known 
 that the changing of a few votes will change the result, and in most cases by a board 
 composed of friends of each of the competing candidates, it is believed that in the ab- 
 sence of all proof, in case of a conflict between the tally-sheets aud returns on one 
 side, and the ballots as they are found to be at some period after the election is over, 
 and after the state of the vote as returned has been made known, on the other, the 
 correctness of the original official canvass, made by sworn officers at the time of tlm 
 election, should be presumed. 
 
 From the foregoing authority it will be seen that in order to sustain 
 a recount the parties seeking the benefit of it must prove conclusively 
 that between the time of the first and second counts there was no op- 
 portunity given for tampering with the ballots. It is not in this case 
 for the contestant to show that the ballots might have been tampered 
 with, but the contestee, who relies upon the recount, must establish 
 affirmatively that the ballots had been safely kept, and that they had 
 not been exposed to the public or handled by unauthorized persons. 
 These facts do not appear affirmatively in the record, but, on the con- 
 trary, the proof is conclusive that the ballots were so placed as to ren- 
 der it possible for them to be handled and tampered with, and it is fur- 
 ther shown by the evidence that by the use of pasters it was not only 
 possible, but probable, that important changes were made in the ballots 
 by the falling off of these pasters. This theory of the case may tie as- 
 sumed without impeaching the integrity of the aldermen who made the 
 recount, for they not only counted the votes under their official respon- 
 sibility, but submitted depositions in the contest to the effect that they 
 had counted the ballots correctly as they found them. We may assume 
 their count to be true, and that they did not perjure themselves when 
 they swore to the correctness of this count, by considering not only the 
 possibility as to the ballots being tampered with, but the undisputed 
 evidence that certain ballots were cast and counted by the ward officers 
 which did not appear in the count made by the aldermen. 
 
 In conclusion, referring to the count of the ward officers and aldermen 
 it appears that in ward 18 Mr. Dean received 573 votes, or 6 votes less 
 than the ward returns, and Mr. Field 1,413 votes, or 3 more than the 
 ward returns, making a difference of 9 in his favor. In the two wards 
 (16 and 18) Mr. Field has 20 votes in his favor by the aldermanic count 
 But by the evidence taken in the contest, going behind all the returns, 
 it appears that the aldermanic count is not the true result of the election 
 in wards 16 and 18, and if we assume the validity of the aldermanic 
 count, except where it is disproved in the contest, we must give Mr. 
 Dean the benefit of the evidence in these two wards. We shall then 
 have as the result in the district, conceding Mr. Field the 25 votes cast
 
 DEAN V.S. FIELD. 213 
 
 for "fourth district," aud conceding for the sake of the argument the 
 validity of the aldermanic count, except so far as disproved by the evi- 
 dence 
 
 Vote*. 
 
 For Beiijiimin Dean 9,328 
 
 FV>r Walbridge A. Field 9,313: 
 
 leaving a majority of 15 votes for Mr. Dean. Therefore, if this election 
 is to depend upon the aldermen's count, except so far as disproved by 
 the evidence in the case as to wards 10 and 18, Mr. Dean is elected by 
 - 15 majority; but if, as we contend, the ward returns, sustained by the- 
 United States supervisors, are to stand as the count provided by law, 
 Mr. Dean is also elected by 5 votes. In either view of the case the 
 contestant is elected. Your committee, therefore, recommend the adop- 
 tion of the following resolutions: 
 
 Resolved, That Walbridge A. Field is not entitled to a seat in this. 
 House as the Representative from the third Congressional district of the 
 State of Massachusetts. 
 
 Kesolred, That Benjamin Dean is entitled to a seat in this House as 
 the Representative from the third Congressional district of the State 
 of Massachusetts. 
 
 JOHN T. HAEEIS. 
 
 WILLIAM M. SPRINGER. 
 
 THOS. R. COBB. 
 
 B. JNO. ELLIS. 
 
 JAC. TURNEY. 
 
 Without at this time assenting to all the propositions made, I concur 
 in the conclusion reached. 
 
 JERE N. WILLIAMS. 
 
 Without indorsing the argument of this report, I concur in the reso- 
 lutions. 
 
 . J. T. H. 
 
 Mr. MILTON A. CANDLER submitted the following as the 
 
 I IEWS OF THE MINORITY: 
 
 The undersigned, a minority of the Committee on Elections, to whom was 
 referred the contested-election case from the third Congressional district 
 of JfatMGfctttetfe, ha ring considered the same, make the following report .- 
 
 The third Congressional district of Massachusetts comprises wards 
 13, 14, 15, 10, 17, 18, 19. 20, 21, and 1*4 in the city of Boston. The elec- 
 tion for Representatives in Congress took place "in that State on Tuesday, 
 the 7th day of November, 187G, at which time Presidential electors, 
 governor, and other State officers were elected. 
 
 The manner of holding elections for Representatives in Congress in the 
 ity of Boston, as prescribed by the State law, is as follows: One poll- 
 ing place is opened in each ward of the city, and the election is con- 
 ducted by a warden, clerk, three inspectors appointed by the mayor, 
 and three inspectors chosen by the qualified voters of the ward. Tin- 
 warden presides at the election, and it is the duty of the warden and 
 inspectors to receive, sort, and count the votes, the clerk being allowed 
 to assist in assorting aud counting the votes.
 
 214 DIGEST OF FLECTION CASES. 
 
 The result being; thus ascertained by the ward officers, public declara- 
 tion is made thereof by the warden in open ward meeting before 
 adjournment. The result having been recorded by the ward clerk, a 
 certified copy of this record shall be by the ward clerk delivered to the. 
 city clerk, who shall forthwith enter the same in the city records. After 
 all the ballots have been sorted, counted, declared, and recorded, they, 
 together with the check lists, are, in open ward meeting', secured in an 
 envelope, sealed with a seal provided for the purpose, and with the 
 indorsement of the warden, clerk, and a majority of the inspectors, giving 
 the name of the office for which the ballots were cast, the ward in 
 which cast, the day of election. &c., entered thereon, are transmitted 
 forthwith by the constable in attendance at said election, or by one of 
 the ward officers other than the clerk, to the city clerk. Certified copies 
 of the ward records, together with "all the ballots given in by the 
 voters of the wards and none others," and the check-lists, being in The, 
 custody of the city clerk, it is made the duty of the mayor and aldermen 
 and the city clerk to examine the returns made by the returning-officer* 
 of each ward in the city, and if any error appears they shall forthwith 
 notify said ward officers thereof, and require of them new and additional 
 returns, which, together with the original returns, shall be included in 
 their return of the result of the election. 
 
 "In counting the votes in an election no returns shall be rejected 
 when the votes given for each candidate can be ascertained." After 
 this examination of the returns of the ward officers by the mayor and 
 aldermen, and the same have been recorded, it is the duty of the city 
 clerk, within ten days of the day of the election, to transmit copies of 
 the records of the votes, attested by him, certified by the mayor ami 
 aldermen, and sealed up, to the secretary of the Commonwealth. The 
 secretary, upon receiving these certified returns under seal, shall 
 transmit them with the seals unbroken to the governor and council, 
 who, with five at least, of the council, shall examine them and issue 
 his "summons" (certificate) to the person who shall appear from these. 
 returns to be chosen member of Congress. We have so far stated what 
 mast take place in every election, whether its fairness or correctness is 
 questioned or not. If the correctness of the election as held in the wards 
 is questioned then the duties of the board of aldermen as to the exami- 
 nation and correction of the ward returns are made more specific. 
 
 It is provided by sections 4 and .">. eliapter 1X8, of the laws of 
 chusetts, 1870, as follows: 
 
 SKC. 4. If within three days next following the day of any electiim ten or 
 qualified voters of ;uiy want sh;;il tile with the city clerk :i statem- lit in writing that, 
 they hnve reason to lurlicve that the returns of the ward o Hirers a-e ei:-oneons, speci- 
 fying wherein they deem them in error, said city clerk shall forthwith transmit such 
 >tatement to the hoard of aH-rmen or the committee thereof appointed to examine 
 the returns of said election. The hoard of aldermen, or their committee, shall there- 
 upon. and within five days. Sunday excepted, next following the day of eh-efion, open 
 the envelope and examine the Ballots thrown in said * ard. and determine 1 he question* 
 raised; they shall then again sea! the envelope, cither with the seal of the city or a val 
 provided for the purpose, and shall indorse up.Mi said envelope a certificate that the 
 >;nne has been opened and again sealed by them in conformity to law: and the en- 
 velope. scaled as aforesaid, shall he returned to the city clerk. ' Said city clerk, upon 
 the certificate of the hoard of aldermen or their committee, shall alter and amend such 
 ward returns as have In en prove ! to he erroneous, and such amended ret.nnis shall 
 -(and as the true reiimi> of the ward. 
 
 SKC. 5. The hoard of aldermen shall not declare the result of an election until tho 
 
 time specified in the pivediui:; *< 'cti >n for filing a request fora recount of ballots shall 
 
 xpired.or in case ofgUCO request having been made, until the said ballots havo 
 
 'xamined and the returns amended, if found erroneous, any provision in tho 
 
 charter of any city or in any act in amendment thereof to the contrary notwithstanding.
 
 DEAN Vs. FIELD. 
 
 215 
 
 Thar is. when the board of aldermen shall be informed by ten or more 
 qualified voters of any ward that there is reason to believe that the 
 ward returns are erroneous, it shall be the duty of the board of alder- 
 men or the committee thereof to examine the ballots thrown in the ward, 
 and if the return is found to b i erroneous to cause it to be altered and 
 amended, and the returns thus amended are to stand as the true returns 
 of the ward. 
 
 The facts in this cast* are that in the several wards comprising the 
 district elections welv held fora Representative ID Congress in the man- 
 ner "provided by the laws of the rommomvealth herein substantially set 
 forth. Walbridge A. Field, the candidate of the Republican party, and 
 Benjamin Dean, the candidate of riie Democratic party, both residents 
 of the district, were the persons tor whom nearly all the votes were ca^r 
 In the several wards comprising the district after the sorting, counting, 
 and declaration of the votes, returns were made to the city clerk of the 
 result, together with the check-lists and ballots, in the manner pre- 
 scribed by law. The following tabulated statement from these returns 
 U'ives the results of the elections as held in the several wards: 
 
 Ward returns. 
 
 13 14 
 Keujan'iu Dean 1 495 1 07! 
 
 896 
 
 802 
 
 18 
 579 
 
 19 
 1 126 
 
 20 
 1 038 
 
 n 
 
 547 
 
 24 
 
 895 
 
 Totals, 
 308 
 
 Walbi'd-i' A Field -) 19 W> 
 
 621 
 
 1 131 
 
 1 410 
 
 614 
 
 897 
 
 1 331 
 
 1 361 
 
 9 27C 
 
 Walhi -it! ne A . Field (4t h dist . ) 
 
 
 
 25 
 
 
 
 
 
 25 
 
 A. Field . 
 
 
 
 
 1 
 
 
 
 
 1 
 
 Field 
 
 
 
 
 1 
 
 
 
 
 I 
 
 Sa;:in. D Smith. . 
 
 
 
 
 
 
 1 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 At each of the ward meetings in the ten wards in this district were 
 present two supervisors ot election appointed by the judge of the circuit 
 court of the United States for the circuit wherein is situated said elec- 
 tion district, in the manner provided for by section U011 of the United 
 States lie vised Statutes, and performed all the acts required by law to 
 be done by them at placex for holding elections of Representatives inCon- 
 grex*. These supervisors made and reported to the chief supervisor of 
 elections for this district of Massachusetts returns of the votes cast for 
 Representative in Congress. From these returns it appears that Ben- 
 jamin Dean received '.(.."(IS votes. Walbridge A. Field 9,276 votes, and 
 that there were L'5 additional votes cast in ward 18 for Walbridge A. 
 Field, of fourth district, not counted. These returns differed from the 
 returns of the ward officers in not giving the scattering votes for A. 
 
 Field. Field, and Samuel D. Smith, and giving Benjamin Dean, in 
 
 the fourteenth ward, one vote less, and in the sixteenth ward one vote 
 more than shown by the returns of those two wards. 
 
 It appears from the evidence that in wards 13, 15,17, and 19 there 
 was no scrutiny and counting of all the ballots cast, by each of the su- 
 pervisors. In the remaining six wards it appears from the evidence 
 that the supervisors personally scrutinized, canvassed, and counted all 
 the ballots cast for Representative to Congress. It does not appear 
 from the returns made by the surpervisors that the votes cast in the 
 several wards were by them counted, except in one ward, the 18th, and 
 only in that ward does it appear when and how the counts of the super- 
 visors were made. In that ward the ballots were first counted by the 
 ward officers, and then by them were handed to the supervisors, who
 
 216 
 
 DIGEST OF ELECTION CASES. 
 
 separately and carefully counted them with the same result as that of 
 the ward officers. 
 
 Within three days next following the day of this election, statements- 
 in writing by ten or more qualified voters of each of the wards of the 
 district were made out and filed with the city clerk. These statement* 
 were the same in each ward, and were drawn up at the office of the 
 chairman of the returned member's district committee, and were by him. 
 sent out for signatures. They were in form as follows : 
 
 To the city clerk of the city of Boston : 
 
 The undersigned, qualified voters of ward 13, in the third Congressional district, 
 hereby state that they have reason to believe that the returns of the ward olticer.s of 
 said ward for member of Congress in said Congressional district at the election of 
 November 7, 1876, are erroneous in that all the ballots cast for Walbridge A. Field as 
 member of Congress were not counted and credited to him, and that more ballots were 
 credited to Benjamin Dean as a member of Congress than were cast for him ; and 
 they ask for a recount of the vote of said ward for member of Congress, in accordance 
 with the provisions of section 4 of chapter 188 of the acts of the year 1876. 
 
 These ward statements having been transmitted to the board of alder- 
 men, as required by law, a committee of the board of aldermen, ap- 
 pointed by the mayor on the day preceding the election, opened the en- 
 velopes containing the ballots thrown in each ward, and counted said 
 ballots with the result shown in the following table : 
 
 
 Official count. 
 
 Totals. 
 
 la 
 
 14 
 
 15 
 
 16 
 
 17 
 
 18 
 
 19 
 
 20 
 
 21 
 
 24 
 
 Benjamin Dean 
 
 1,497 
 225 
 
 1,100 
 950 
 
 855 
 751 
 
 889 
 625 
 
 803 
 1,131 
 
 573 
 1,413 
 25 
 
 1,125 
 614 
 
 1,035 
 891 
 
 545 
 
 1.333 
 
 893 
 1,362 
 
 9,315 
 9.295 
 25 
 1 
 3. 
 1 
 3 
 1 
 
 Walbridge A. Field 
 Walbridge A. Field (4th diet.) 
 Win. A. Field ...' 
 
 
 
 
 1 
 
 
 
 
 
 
 
 Field 
 
 
 
 
 
 
 
 3 
 
 
 
 
 Leopold Morse 
 
 
 
 
 1 
 
 
 
 
 
 
 
 Kuf us S. Frost 
 
 
 
 
 2 
 
 
 1 
 
 
 
 
 
 Francis M. Weld 
 
 
 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 H 
 
 
 This result having been reported to the board of aldermen by its- 
 committee and accepted by the board, the city clerk altered and 
 amended the ward returns in accordance therewith, and entered the 
 same with the resolution of the board in the city records, as follows : 
 
 CITY OK BOSTON. 
 
 Revord of return* of votes gii'en in the several wards Norember 7, 1876, for member* of tht 
 
 Forty-fifth Congress. 
 
 [District No. Three, as amended.] 
 
 
 
 
 
 
 Wa 
 
 rds. 
 
 
 
 
 
 
 13 
 
 14 
 
 15 
 
 16 
 
 17 
 
 18 
 
 19 
 
 20 
 
 21 
 
 24 
 
 Walbridge A. Field 
 
 225 
 
 950 
 
 751 
 
 625 
 
 1 131 
 
 1 438 
 
 614 
 
 891 
 
 1 333 
 
 I 362 
 
 Benjamin Dean. 
 
 1 497 
 
 1 100 
 
 855 
 
 889 
 
 803 
 
 573 
 
 1 I'J'i 
 
 1 035 
 
 545 
 
 893 
 
 Win. A. Field 
 
 
 
 
 1 
 
 
 
 
 
 
 
 Field 
 
 
 
 
 
 
 
 3 
 
 
 
 
 Leopold Morse 
 
 
 
 
 1 
 
 
 
 
 ... 
 
 
 
 Riifus S. Frost 
 
 
 
 
 a 
 
 
 1 
 
 
 
 
 
 Francis M. Weld 
 
 
 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Total*. 
 
 9, 32S 
 
 9, 316 
 
 1 
 
 ft 
 1 
 
 t 
 1
 
 DEAN VS. FIELD. 217 
 
 Resolved, That iu the opinion of this board the twenty-five ballots cast in the 
 eighteenth ward of this rity, on tl>>- s.-venth instant, tor Walbridge A. Field, of Boston, 
 for member of Congress from The fourth district. \\eiv intended for Wai bridge A. 
 FifM. of Huston, who \v;is nominated and voted for as a member of Congress for tin; 
 third district. It is theiefore 
 
 Urdeifd, That in tin- certificate to be sent to the secn-tary of the commonwealth the 
 number of ballots for Mr. Field be returned as follows: Walbridge A. Field, of Boston, 
 had ninety-three hundred and twenty : twenty-five of which were headed Ward XVIII, 
 and read as follows: ' For Representative to Congress, fourth district, Walbridge A. 
 Field, of Boston. " 
 
 Passed. 
 
 S. F. McCLEARY, 
 
 / Clerk. 
 
 IN BOAI:I> OF AT DERMKN. Xoreinhfr 15. 1-7T. 
 
 Within ten days from the day of the election, as prescribed by the 
 statute, the- city clerk transmitted copies of the records of the votes 
 cast for members of Congress, as declared by the board of aldermen, to 
 the secretary of the commonwealth, by whom they were duly transmit- 
 ted to the governor and council. From this return it appeared that 
 Walbridge A. Field had the highest number of votes cast iu the election, 
 and was chosen Representative in Congress from said district, and a 
 certificate by the governor was issued accordingly. Within the time 
 prescribed by the statutes of the United States notice of contest was 
 served by Mr. Dean upon Mr. Field. The questions made by the notice 
 of contest and the answer of the returned member and the evidence 
 taken relate to the validity of the several counts, and do not go to the 
 truth of the case further than as shown by the counts themselves. 
 
 In the eighteenth ward of the city twenty-five, ballots were cast desig- 
 nating the Congressional office and candidate thus: " For Representative 
 to Congress, fourth district, Walbridge A. Field, of Boston." These 
 twenty-five ballots were counted for Mr. Field as Representative to Con- 
 gress from the third district both by the ward officers and the board 
 of aldermen, and are necessary to the election of Mr. Field. The con- 
 testant avers that these votes were improperly and illegally counted for 
 Field. They were legally counted if they clearly indicate the office for 
 which the person is designed, and the intention of the voter as to that 
 person can be ascertained from the ballot. Evidence may not be re- 
 ceived to contradict the ballot nor to give it a meaning when it ex- 
 presses no meaning of itself; but if it be of doubtful import, the circum- 
 stances surrounding the election may be given in evidence to explain 
 it and get at the intent of the voter. (McCrary's Law of Elections, 
 p. 299.) The office to be filled was Representative in Congress. The 
 words "fourth district" constitute no part of the designation of that 
 office. The way it happened that the words "fourth district" had been 
 printed upon these ballots was explained by the person printing them, 
 that he had neglected to take from his printing-press the type contain- 
 ing these words, which had been used for printing ballots for Repre- 
 sentative iu Congress in the adjoining fourth district. Walbridge A. 
 Field was the candidate for Congress in the third district ; he resided in 
 that district. There was no other Walbridge A. Field residing in that 
 district or in the city of Boston ; the ballots were cast in the eighteenth 
 ward and third district, and by law could only be cast by persons re- 
 siding in that ward and district. Clearly, then, from these ballots and 
 the evidence showing by whom they were cast, and the circumstances 
 under which cast, it appears that they were cast for Walbridge A. Field, 
 one of the candidates for Congress in the third district for Representa- 
 tive in Congress from that district. The words "fourth district" not 
 rendering uncertain the office intended to be designated or the person
 
 218 DIGEST OF ELECTION CASES. 
 
 voted for, we think that these twenty-five votes were legally counted 
 for Field as Representative to Congress from the said third district. 
 
 The question left in this ease, and the decision of which determines 
 which of the parties to this contest is the duly chosen Representative 
 from the third district of Massachusetts in the Forty-fifth Congress, is, 
 which of the several counts made is the true count of the law? 
 
 The Constitution of the United States provides that "the time, places, 
 and manner of holding elections for Senators and Representatives shall 
 be prescribed in each State by the legislature thereof; but the Congress 
 may at any time by law make or alter such regulations except as to the 
 place of choosing Senators." (Sec. 4, 1st art.. Const. U. S.) Under this 
 mandate of the Constitution there is prescribed in the State of Massa- 
 chusetts, by the legislature thereof, a complete system of laws as to the 
 places and manner of holding elections tor Representatives in Congress 
 and for ascertaining the result of these elections. That system is not 
 complete in the holding of the elections in the wards of the cities com- 
 prising the districts and iu. the separate declaration of the votes in the 
 wards. 
 
 Without the examination of the returns from the wards by the alder- 
 men there can be no determination as to the result of the elections 
 held in the several wards comprising the district. The board of alder- 
 men is 'the only body that at any time is ppssessed of all the means 
 necessary to ascertain who has been chosen a Representative in Con- 
 gress for the district. 
 
 It is the duty of the mayor and aldermen and the clerk to examine 
 the returns made by the returning officers of the several wards, and to 
 compel the correction of any errors which may be discovered by them, 
 and make record of the corrected returns. The ballots, voting-lists, and 
 records remain in their possession. 
 
 " In counting (by the mayor, aldermen, and clerk) all the votes cast in 
 an election, no returns of these votes from the wards shall be rejected 
 when the votes given for each candidate can be ascertained." It is from 
 the records of this board, attested and certified by them, that the gov- 
 ernor is informed of the result of the election, and issues his summons 
 to the person that appears from the records to have been chosen. (Sec. 
 15, 16, 17, and 22, Gen. Stats. Mass., chap. 7 ; Record, pp. 209, 210, and 
 211.) More distinctly is it provided under the act of the legislature ap- 
 proved April 26, 1876, herein before set forth, that whenever statements iu 
 writing by ten or more qualified voters of any ward, stating that they 
 have reason to believe that the returns of the ward officers are erro- 
 neous, specifying wherein they deem them in error, are filed with th 
 city clerk, there shall be an examination of the lallots thrown in that ward, 
 and a determination by the board of the questions raised. There can 
 be no declaration of the result of an election by the board of aldermen 
 until the expiration of the time for filing these requests for a recount of 
 the ballots, or in case of such request there has been an examination of 
 the ballots and an amendment of the returns, if erroneous. 
 
 These a amended returns," the result of the recount by the aldermen, 
 are to stand as the true returns of the ward. It is insisted that the 
 count made in this case by the aldermen was unthorized by law, the 
 statements in writing filed with the clerk being insufficient under the 
 statute. 
 
 The purpose of the statute clearly was to compel an examination and 
 count of the ballots cast in any ward whenever ten or more qualified 
 voters should say to them iu writing that they had reason to believe
 
 DEAN VS. FIELD. 219 
 
 that the ward returns wore erroneous, and specify wherein they deemed. 
 Mi em in error. 
 
 Statements from every ward of the district in writing', signed by ten 
 or more qualified voters from the wards respectively, Raying they had 
 reason to believe that the returns of the ward officers were erroneous, 
 specifying " that all the ballots cast for \Yalbridge A. Field, as member 
 of Congress, had not been counted and credited to him, and that more 
 Bailors were credited to Benjamin Dean as member of CVngress than 
 were cast for him," had been filed with the city clerk. The complaint 
 :o be made is not as to the manner in which the election by the ward 
 officers has been conducted : it does not go to any wrongful act of these 
 officer-, but is directed specifically to the ascertained result, the returns 
 nade : >y these officers. The object to be accomplished is to have an 
 examination and count of the ballots by the board of aldermen. The 
 complaint can only be as to the result of the count of the ballots by the 
 ward officers. 
 
 This specification of error is to be by persons who were in no way 
 connected with the count of the ballots ; by persons who cast the ballots 
 and who have reason to believe that there has been error in their count. 
 
 Statements by such persons could hardly be more specific than those 
 iled in this case, " that all the ballots cast for Wai bridge A. Field had 
 not been counted and credited to him, and that more ballots had been 
 credited to Benjamin Dean than were cast for him." 
 
 It is the opinion of your committee that these statements were suffi- 
 cient in law to authorise the examination and count of the. ballots cast 
 in the several wards by the board of alderineu. 
 
 The law of Massachusetts in terms declares that the returns as 
 amended by the board of aldermen, the count of the ballots by them, 
 shall u stand as the true returns of the ward." This count is the final, 
 the ascertained, result of an election held in the manner prescribed by 
 the legislature of the State for holding elections for Representatives in 
 Congress, and must stand as showing the choice of the people of that 
 district for that Representative, unless it be shown to the House of 
 Representatives, judging of the election of one of its members, not to 
 be true by evidence other than the ward counts, which are by this count 
 reviewed and corrected. 
 
 Notwithstanding it appears from the evidence of the ward officers 
 themselves and others who witnessed the manner of holding the elec- 
 tion by the ward officers, and the counting by them of the ballots, that 
 their counts were carefully made and they have no reason to be- 
 lieve that they were not correctly made they are insufficient to show 
 that the subsequent count is untrue, and are incompetent to that pur- 
 pose; for, by law, the count by the aldermen is one in review and 
 In correction of these counts, and instead of them is to stand as the 
 Irue return of the election. That rule of law that would allow this 
 would be like unto one which wqpld hold the reversed judgment of an 
 inferior court evidence sufficient-to show the reversing judgment of the 
 superior court to be erroneous. To state the proposition is to show its 
 unsound ness. 
 
 Supervisors of elections for each of the wards in said district were 
 appointed by the judge of the circuit court of the United States for the 
 circuit in which said district was situated. These supervisors were pres- 
 ent at the several ward meetings at which this election was held, and 
 afterward certified and made returns of the votes received by the two 
 candidates to the chief supervisor. 
 
 According to these several returns Benjamin Dean received 9,308
 
 220 DIGEST OF ELECTION CASES. 
 
 votes, Walbridge A. Field received 0,270 votes, and there were ''twenty- 
 five additional votes cast for Walbridge A. Field, of fourth district, not 
 counted." 
 
 Sections 2011, 2012, 2013. 2014. 2015, 2016, 2017, 2018, and 2019 of 
 the Revised Statutes, which were enacted as amendments to an act 
 approved May ;1, 1S70, entitled "An act to enforce the rights of citi- 
 zens of the United States to vote in the several States of this Union, and 
 for other purposes," are the provisions of law under which supervisor* 
 of elections are appointed and their duties prescribed. 
 
 These sections are as follows : 
 
 SKC. 2011. Whenever, in any city or town having upward <>i' twenty thousand in- 
 habitants, there are two citizens thereof, or whenever, in any county or parish, in any 
 Congressional district, there are ten citizens thereof, of good standing, who, prior to 
 any registration of voters for an election for Representative or Delegate in the Con- 
 gress of the United States, or prior to any election at which a Representative or 
 Delegate in Congress is to he voted for. may make known, in writing, to the judge ol 
 the circuit court of the United States for the circuit wherein such city or town, county 
 or parish, is situated, their desire to have such registration, or such election, or both, 
 guarded and scrutinized, the judge, within not less than ten days prior to the regis- 
 tration, if one there be, or, if no registration be required, within not less than ten days 
 prior to the election, shall open the circuit court at the most convenient point in the 
 circuit. 
 
 SKC. '2012. The court, wheu so opened by the judge, shall proceed to appoint and 
 commission, from day to day and from time to time, and under the hand of the judge, 
 and under the seal of the court, for each election district or voting precinct in such 
 city or town, or for such election district or voting precinct in the Congressional 
 district, as may have applied in the manner hereinbefore prescribed, and to revoke, 
 change, or renew such appointment from time to time, two citizens, residents of the 
 city or town, or of the election district or voting precinct in the county or parish, 
 who shall be of different political parties, and aide to read and write the English 
 language, and who shall be known and designated a*t supervisors of election. (See 
 $$ 5521,5522.) 
 
 SEC. 2013, The circuit court, when opened by the judge as required in the two pre- 
 ceding sections, shall therefrom and thereafter, and up to and including the day fol- 
 lowing the day of election, be always open for the transaction of business under this 
 title, and the powers and jurisdiction hereby granted and conferred shall be exercised 
 as well in vacation as in term time ; and a judge sitting at chambers shall have the 
 same powers and jurisdiction, including the power of keeping order aud of punishing 
 any contempt of his authority, as wheu sitting in court. 
 
 SEC. 2014. Whenever, from any cause, the judge of the circuit court in any judicial 
 circuit is unable to perform and discharge the duties herein imposed, he is required to- 
 select and assign to the performance thereof, in his place, such one of the judges of the 
 district courts within his circuit as he may deem best: and upon such selection and 
 assignment being made, the district judge so designated shall perform and discharge, 
 in the place of the circuit judge, all the duties, powers, and obligations imposed ami 
 onferred upon the circuit judge by the provisions hereof. 
 
 SEC. 2015. The preceding section shall be construed to authorize each of the judge* 
 of the circuit courts of the United States to designate one or more of the judges of the 
 district courts within his circuit to discharge the duties arising under this title. 
 
 SEC. 2016. The supervisors of elections so appointed are authorized and required to 
 attend at all times and places fixed for the registration of voters who, being regis- 
 tered, would be entitled to vole for a Representative or De-legate in Congress, and to- 
 rhallenge any persou offering to register; to attend at all times aud places when the 
 names of registered voters may be marked for challenge, and to cause sncli names reg- 
 istered as they may deem proper to be so marked ; to make, when required, the lists, 
 or either of them, provided for in section twovthousand and twenty-six, and verify the 
 name: and upon any occasion, and at any time when in attendance upon the duty 
 herein prescribed, to personally inspect ami scrutinize such registry, aud, for purposes 
 tf identification, to affix their signature to each page of the original list, and of each 
 ropy of any such list of registered voters, at such times, upon each day when any name 
 may In- received, entered, or registered, and in such manner as will, in their judg- 
 ment, detect and expose the improper or wrongful removal then-form, or addition 
 thereto, of any name. 
 
 Sr.r. 2017. The supervisors of election are anthori/ed and required to attend at all 
 I lines and places for holding elections of Representatives or Delegates in Congress, am! 
 for counting the votes < -as- at such elections ; to challenge any vote offered by ain 
 person whose legal qualification* iln- supervisors, or either of them, may doubt : to bo-
 
 DEAN Vis. FIELD. 221 
 
 and remain when- tin- ballot-boxes are kept at all times after the polls are open until 
 every vote cast ai .Mich time and place has been counted. tl*e canvass of all votes polled 
 wholly completed, and the proper and requisite ccitilieates or returns made, whether 
 the eertifieates or returns be required underaiiy law of the United States, or any > 
 Territorial, or munieipa! law. and to personally inspect and scrutinize, from time to 
 time, and at all times, on the day ot'eleerion. the manner in which the voting is done 
 and the way and method in which the poll-books. r< gi>t ry-lists. and tallies or cheek- 
 books, whether the same are required by any law of tl;e United States, or any State, 
 Territorial, or municipal law, are kept. 
 
 . the end that each candidate for the office of Representative or Delegate, 
 in Congress may obtain the benefit of every vote for him cast, the supervisors of elec- 
 tion are, and each of them is, required t personally scrutinize, count, and canvass 
 each ballot in their election district or voting precinct cast, whatever may be the in- 
 dorsement on the ballot, or in whatever box it may have been placed or be found ; to 
 make and forward to the officer who, in accordance with the provisions of section two 
 thousand and twenty-live, lias been designated as the chief supervisor of the judicial 
 district in which the eity or town wherein they may serve, acts, such certih'cates and 
 returns of all such ballots as such officer may direct and require, and to attach to the 
 registry- list, and any and all copies thereof, and to any certificate, statement, or re- 
 turn, whether the same, or any part or portion thereof, be required by any law of the 
 United States, or of any State. Territorial, or municipal law, any statement touching 
 the truth or accuracy of the registry, or the truth or fairness of the election and can- 
 . which the supervisors of ihe election, or either of them, may desire to make or 
 attach, or which should properly and honestly be made or attached, in order that the 
 facts may become known. 
 
 SF.C. '2019. The better to enable the supervisors of election to discharge their duties, 
 they are authorized and directed, in their respective election districts or voting pre- 
 cincts, on the day of registration, on the day when registered voters may be marked 
 to be challenged, and on the day of election, to take, occupy, and remain in such posi- 
 tion, from time to time, whether before or behind the ballot-boxes, as will, in their 
 judgment, best enable them to see each person offering himself for registration or 
 offering to vote, and as will best conduce to their scrutinizing the manner in which 
 the registration or voting is being conducted: and at the closing of the polls for the 
 reception of votes, they are required to place themselves in such position, in relation 
 to the ballot-boxes, for the purpose of engaging in the work of canvassing the ballots, 
 as will enable them to fully perform the duties in 1'espect to such canvass provided 
 herein, and shall there remain until every duty in respect to such canvass, certificates, 
 returns, and statements has been wholly completed. 
 
 These provisions of law were not enacted by Congress in pursuance 
 of its constitutional power to < make or alter" regulations as to the man- 
 ner of holding elections for Representatives in Congress. 
 
 They are not certainly to operate even to the supervision of an elec- 
 tion for a single polling place in a city or county which may constitute 
 only a part of an election district, but shall only operate when a certain 
 number of citizens shall make known in writing to a United States 
 judge their desire to have the election "guarded and scrutinized." 
 
 The manner of holding such an election is in no way regulated. 
 
 These officers are designated as " supervisors of elections." They are 
 appointed by the judges of the Federal courts as instruments in the 
 process <>f > enforcing the rights of citizens of the United States to vote 
 in the several States; " not managers of an election, but guardians and 
 serntinizers of an election managed by others, officers of the States. 
 
 They are to attend at all times and places for holding elections for 
 Representatives in Congress, and for counting the votes at such elec- 
 tions in order that they may challenge votes and inspect and scrutinize 
 the manner in which the voting is done, but they are not to receive or 
 decide upon the legality of any vote, or regulate the manner in which 
 the voting is done. On the day of election and at the places of holding 
 the election they are to take, occupy, and remain in such position as will 
 best enable them to see each person voting, scrutinize the manner in 
 which the voting is being conducted, and at the closing of the polls 
 they are to put themselves in such a position in relation to the ballot- 
 boxes, for the purpose of engaging in the work of canvassing the bal-
 
 222 DIGEST OF ELECTION CASES. 
 
 lots, as will enable them to fully perform their duties in respect to such 
 ranvass herein provided, but they are not to be in position enabling 
 them to receive a vote, cor. duct an election, or control a ballot-box. 
 
 Each of these supervisors is required }H-rKon<illy to scrutinize, count, 
 and canvass each ballot in their election district cast; " not as a board of 
 election managers, to ascertain the number of ballots cast and for whom 
 cast, and as such board to make returns thereof to the State officer who 
 shall certify that result, or the House of Representatives, who shall judge 
 of that return ; but each one personally is- to scrutinize, count, and canvass 
 each ballot cast in his voting precinct, and make ' such certificate and re- 
 turn of all such ballots" as may be directed and required by the chief 
 supervisor from whom he received his appointment. They make re- 
 turns only of what they have seen in the management of the election, to 
 the chief supervisor appointed by the judge of the circuit, " in order that 
 the facts may become known.' 1 ' Become known " through these super- 
 visors, these witnesses for the courts having jurisdiction of the offenses 
 created in these acts, enacted to ' enforce the rights of citizens of the 
 United States to vote in the several States of the Union, and for other 
 purposes." 
 
 Further than the returns made, which do not in terms show a couni 
 made by these supervisors, except as to the returns from the eighteenth 
 ward, the evidence does not show that the supervisors counted the votes 
 in the wards comprising the election district. So that, in the determi- 
 nation of the value of those returns as evidence in this case, their only 
 value is in their official character. 
 
 The undersigned, believing that they are not counts made and results 
 ascertained in pursuance of any law made " to regulate the manner of 
 holding elections for Representatives in Congress," hold that they are 
 insufficient to set aside the result found in this case according to the 
 law of the State of Massachusetts, the certified return of the board of 
 aldermen. 
 
 It is averred by the contestant that the count by the aldermen, upon 
 which rests the right of the returned member to his seat, was made by 
 three members of the board of aldermen in private and not in the pres- 
 ence of the public; that it was made without notification to the contest- 
 ant, or the supervisors of election, appointed in pursuance of the United 
 States statutes, and that these supervisors were not permitted to be, and 
 were not in fact, present at the recount of the bal! Jts by the aldermen. 
 and, as inference from these facts, it is averred that the count of the 
 aldermen did not show the true number of votes cast for the parties to 
 this contest. It is not insisted that because of these facts the count of 
 the aldermen is void, but that they so discredit the count that it may 
 not be set up as the true return of the election as against the counts 
 made in the wards. The evidence shows that no notice of the examiua 
 tiou and count of the ballots by the aldermen was given to the super- 
 visors of the election or to either of the parties to the contest, and that 
 none of these parties were present. The committee who made the count 
 was appointed for this purpose by public action of the board of alder 
 men on the day immediately preceding that of the election, and it was 
 appointed in pursuance of a public statute of the State. 
 
 There is 110 evidence that there was any exclusion of any person, su- 
 pervisor or candidate, from the count. The count was made by the 
 committee in one of the rooms of the city hall, and with the aid of the 
 assistant city clerk and the clerk and assistant clerk of committees of 
 the board of aldermen. At times during the count the city clerk and 
 rity attorney were present. The door of the room in which the count
 
 DEAN VS. FIELD. 223 
 
 - made wa^ not kept locked. The count required the larger part of 
 two days, and both parries knew it was to be made. 
 
 The count was made during- the time, at the place, and in the manner- 
 required by law. There is no law requiring the presence of any person 
 other than the committee, unless it he found in that regulating the 
 duties of the supervisors of election. 
 
 The sole object of the act of Congress, of which the sections of the 
 Revised Statutes hereinbefore set forth are a part, was to enforce "the 
 right of the citizen to vote and to secure that vote to the candidate for 
 whom intended." To that end it is provided that these supervisors 
 shall attend at \\wplacex for holding the elections for Representatives, and 
 counting the votes cast at such election, and to remain where the bal- 
 lot-boxes are kept at all times after the polls are open until every vote 
 cast at such time has been counted and the canvass completed. Evi- 
 dently this only required the supervisors to be at the place where the 
 election is held, in the precinct or polling-place for which they are ap- 
 pointed, and not at the place where the returns from all the precincte 
 are carried for examination, recount, and consolidation. 
 
 At this place there is no vote which may be challenged, no ballot-box 
 opened for the reception of votes ; there is nothing which may be done 
 by the supervisors appointed for a precinct to " guard and scrutinize n 
 the election there held. 
 
 There being, then, no violation of law in the manner of the count by 
 the committee of aldermen, and none requiring the presence at or the 
 participation in this count by the twenty supervisors appointed, two 
 each for the several precincts or polling-place* in the district, we think 
 that count is in no degree discredited. 
 
 We therefore find that the result of the election in the third Congres- 
 sional district of the State of Massachusetts for a Representative to the 
 Forty-fifth Congress, ascertained in the manner prescribed by the laws 
 of that State, is that Walbridge A. Field received 9,320 votes and Ben- 
 jamin Dean received 9,315 votes ; and that the former, having received 
 the highest number of votes, is duly elected. 
 
 We recommend the adoption of the following resolutions as a substi- 
 tute for the resolutions reported by the majority of the committee: 
 
 Resolved, That Walbridge A. Field is entitled to a seat in this House 
 as a Representative in the Forty -fifth Congress from the third district 
 of Massachusetts. 
 
 Resolved, That Benjamin Dean is not entitled to a seat in this House 
 as a Representative in the Forty-fifth Congress from the third Congres- 
 sional district of Massachusetts. 
 
 MILTON A. CANDLER. 
 FRANK HISCOCK. 
 J. M. THORNBURGH. 
 ,TNO. T. WAIT. 
 H. PRICE.
 
 224 
 
 DIGEST OF ELECTION CASES. 
 
 JOHN S. RICHARDSON vs. JOSEPH H. RAINEY. 
 
 FIRST CONGRESSIONAL DISTRICT OF SOUTH CAROLINA. 
 
 Charges of intimidation, violence, and military interference and of irregularities and 
 informalities at the polls. 
 
 Held, That violations of the election laws that are purely directory in their character , 
 if no fraud be shown to have resulted therefrom, cannot vitiate an election. It 
 is wholly different when mandatory provisions are violated. In the latter case 
 the election is void. 
 
 It need not be that there is, at the time of voting, the presence of force or the pres- 
 ent fear of actual bodily hurt; but the fear of harm, of social ostracism, of relig- 
 ious wrath if brought to bear upon the body of voters, or if exercised to any great 
 extent, and if so general as to affect the result, and the general result cannot be 
 ascertained from the returns, the election is void. 
 
 The sending of United States troops into South Carolina in October, 1870, the uses 
 made of their presence produced a marked and controlling effect upon the election, 
 sufficient to justify declaring void the election of November 7. 
 
 A minority can only elect where the majority with full opportunity to vote as they 
 chose, unrestrained by undue influences, refrained through apathy or neglect from 
 voting. But when undue influences have been brought to bear upon the mass of 
 voters, and they have voted subject to these influences, although the full extent 
 of these influences cannot be arrived at, the entire election should be voided, al- 
 though a minority may have voted free from such influences. 
 
 This report was recommitted to the Committee 011 Elections May 18, 
 1878. 
 
 MAY 18, 1878. Mr. ELLIS, from the Committee on Elections, submitted 
 
 the following 
 
 REPORT: 
 
 The first Congressional district of South Carolina is composed of 
 eight counties Sumter, Darlington, Williamsburg, Georgetown, Horry, 
 Marion, Marlborough, and Chesterfield. 
 
 At the general election held in that district on the 7th of November, 
 1876, John S. Richardson and Joseph H. Kainey were voted for to rep- 
 resent said district in the Forty-fifth -Congress. According to the 
 returns, as filed in the office of the secretary of state, the note was as 
 follows : 
 
 Counties. 
 
 Rainey. 
 
 Richardson. 
 
 In Darlington County 
 
 3 514 
 
 2 747 
 
 In Sumter County 
 
 3 849 
 
 2 389 
 
 In Williamsburg County 
 
 2 371 
 
 1 662 
 
 In Georgetown County 
 
 2 684 
 
 1 152 
 
 In Chenterfield County 
 
 981 
 
 1 622 
 
 In Marlborough County 
 
 1 609 
 
 1 941 
 
 In Marion County 
 
 2 502 
 
 3 140 
 
 In Horry County 
 
 593 
 
 1 922 
 
 
 
 
 ToUd... 
 
 18 103 
 
 16 575 
 
 
 

 
 RICHARDSON VS. RAINEY. 225 
 
 Or a majority for contestee of 1,528 in the entire district. Upon this 
 return a certificate of election was issued to him, and he was sworn in 
 and occupies the seat in Congress from the first South Carolina dis- 
 trict. 
 
 Within the legal time the contestant filed his protest and notice of 
 contest, claiming that certain counties of said district should be rejected 
 from the count for intimidation, violence, and military interference with 
 the said election, and that certain polls in said counties should be re- 
 jected for various informalities, which are fully set foit-li in his notice of 
 contest. 
 
 Without burdening this report with the notice of contest, which is 
 found on pages 1-11 of the report, the grounds upon which contestant 
 bases his contest are substantially as follows : 
 
 1st. That the Government of the United States without cause, other 
 than to influence the result of the election in the interest of contestee 
 and the Republican party, sent troops to many polling places in four 
 counties of the first district, and that the effect of the presence of said 
 armed forces of the United States was such as to greatly influence, if 
 not to change, by intimidation, the result in said counties. 
 
 2d. That the presence at the polls and the attendance at political 
 meetings during the canvass of colored militia armed and organized, 
 and the general arming of colored clubs and their threats against colored 
 Democrats, created such alarm and intimidation as to materially affect 
 the result of said election, and not wholly to change it. 
 
 3d. That the intimidation and threats of social and religious ostra- 
 cism and persecution made by colored Republican social and religious 
 organizations materially affected and changed the result of the election 
 in said counties. 
 
 4th. Contestant urges the following grounds of objection to the count- 
 ing of certain polls in certain counties, as follows : 
 
 lu Darlington County, as follows : 
 
 1st. In that the managers of election appointed for the various precincts established 
 in said county did not comply with a condition precedent to their action as snch 
 managers, inasmuch as no oath taken and subscribed by any of them was tiled in the 
 office of secretary of state, as required by law, there being at the time no clerk of 
 said county duly qualified with whom said oaths could be filed. 
 
 2d. In that Federal officers (deputy marshals and others), intense Republican par- 
 tisan.'., made use of the presence of troops in said county to intimidate electors, 
 whereby at every poll in said county largo numbers were overawed some kept from 
 the polls altogether, and others forced to vote the Republican ticket against their will. 
 
 3d. In that the State militia and other armed Republicans collected large numbers 
 of State and private arms at and near the points at which polls were opened at the 
 precincts established at Darlington Court-House, Society Hill, and Florence. The 
 collection of arms at the polls, as stated in this specification, was with the knowl- 
 edge and (in one instance at least) upon the suggestion of depnty marshals of the 
 United States of America, all Republicans. 
 
 1. That at Manchester precinct the ballots cast were not counted according to law. 
 
 1. That at Concord precinct one William J. Andrews, who was candidate upon the 
 Republican ticket, and is returned as elected to a seat in said assembly, was and acted 
 as one of the United States supervisors of election. 
 
 1. That at Wedgefield precinct one Mansfield McLaurin, who was appointed and 
 acted as clerk of the hoard of managers, did not take the oath of office prescribed by 
 law as a condition precedent to be taken by said clerk, and that a poll-list was not 
 kept at said precinct according to law. 
 
 1. That the poll at Johnston's Store precinct was not opened at the hour designated 
 by law nor for fifty minutes thereafter. 
 
 2. That Hampton Cain, who was appointed and acted as clerk of the board of man- 
 agers at this precinct, did not take the oath of office prescribed by law as a condition 
 precedent to be taken by such clerk. 
 
 3. That a poll-list was not kept at this poll according to law. 
 
 H. Mis. 58 15
 
 226 DIGEST OF ELECTION CASES. 
 
 4. That the ballots cast at this precinct were iiot counted according to law, but only 
 the number of tickets were counted, and no account or tally-list of the ballots cast 
 for any person or persons voted for was kept by either manager, supervisor, or clerk 
 of the managers at said Johnston's Store precinct. 
 
 5. That the managers of this precinct did not proceed immediately at the close of 
 the election to count the ballots cast, but did there, contrary to law, adjourn their 
 board for some time, to wit, twenty minutes, before proceeding to count said votes. 
 
 1. That at Privateer precinct the managers did not open the poll at the hour fixed 
 by law for opening the same nor for one hour and a half thereafter. 
 
 2. That the person who acted as clerk at this precinct did not take the oath of office 
 prescribed bylaw for such clerk to take, and that no poll-list was kept according to 
 law. 
 
 3. The managers of election at said Privateer precinct failed to administer to each 
 and every person who voted thereat the oath required as condition precedent by law 
 to be administered to each person ottering to vote at said election nor was such oath 
 taken by any person who voted at said precinct; and that a large number of persons, 
 to wit, two hundred and fifty-two, were then allowed to vote, and did vote without 
 taking such oath. 
 
 1. That at Stateburgh precinct, one George Patterson, who acted asclerk of the board 
 of managers of such poll, did not take the oath of office prescribed as a condition 
 precedent by law to be taken by such clerk, and that a poll-list was not kept at such 
 poll according to law. 
 
 1. That at Carter's Crossing precinct H. G. Shaw, who was not a manager, acted 
 as clerk of the board of managers without taking the oath of office prescribed as a 
 condition precedent by law to be taken by such cle.rk, and that the poll-list kept at 
 said poll was kept by him, and was not, therefore, such poll-list as was required by 
 law. 
 
 That the board of county canvassers of said county did, contrary to law, open many 
 of the boxes containing the ballots cast after said boxes had been sealed by the man- 
 ager ; that is to aay, the boxes of the following precincts, to wit : Sumter No. I, Pri- 
 vateer, Stateburgh, Providence, Rafting Creek, Spring Hill, Bishopville, Lynchburgh, 
 Shiloh, Mayesville, Johnston's Store, and Swimming Pens ; and that ballots deposited 
 in some of said boxes, to wit, those of Rafting Creek, Stateburgh, and Privateer, were 
 counted by said canvassers after opening said boxes as aforesaid. 
 
 That United States troops were stationed, immediately before and during such elec- 
 tion, in said county of Sumter, to wit, at Sumter Court-House, and did intimidate, 
 overawe, and force many persons to vote the Republican ticket and for the said Rainey, 
 and prevent many other persons from voting for this contestant who would otherwise 
 have voted for him. 
 
 That a large number of persons, to wit, eight hundred persons, who voted more than 
 once, or who, though not qualified to vote, were allowed to vote and did vote at the- 
 various polls in said county in said election. 
 
 That this contestant therefore, and for the reasons stated, asks and demands that 
 the ballots cast at the said several polls in said county of Sumter shall be rejected and 
 entirely excluded. 
 
 In Georgetown County 
 
 1st. In that the commissioners of election for said county met and organized as a 
 board of county canvassers on the 8th day of November, 1876> instead of the Tuesday 
 next following said election, as plainly directed by the fifteenth section of chapter 8- 
 of the general statutes of the State. 
 
 2d. In that neither the chairman of the board of managers nor one of them to be 
 designated in writing by the board, did deliver to the commissioners of election the 
 poll- list, the boxes containing the ballots, and the written statement of the result of 
 the election in his precinct ; and this is true as to each and every precinct in said 
 county, contrary to the explicit directions of the Ihird section of the act of 1872 (15 
 vol. Stat., page "171). 
 
 3d. In that the county board of State canvassers, as such, did receive from persons 
 other than the several precinct-chairmen of board of managers, or one of them desig- 
 nated in writing, the poll-list, the boxes containing the ballots, and the statement of ' 
 the result of the election at the several precincts in said county. 
 
 4th. In that said board refused to receive the protest of the citizens of the county 
 and consider the same, with the proofs offered to sustain them, against the illegal con- 
 duct of the said election at the Sautee, Brown's Ferry, Brooks Green, and other elec- 
 tion precincts in said county. 
 
 5th. In that said bourd actually refused to count the votes of the county, as pro- 
 scribed in the sixteenth section of chapter 8, general statutes, page 31. 
 
 6th. In that, having refused to count the votes of the county, the said board never- 
 theless violated the sanctity of the seals of the boxes containing the ballots, and took 
 from said boxes certain papers contained therein.
 
 RICHARDSON VS. RAINEY. 227 
 
 7th. In that the said election was illegally conducted in almost every respect re- 
 quired by the laws of the State, and the refusal of said board to hear the citi/eu in 
 defense of his rights, based upon proofs of said illegality, is a blow at the purity of 
 elections, the safeguard of the elective franchise, and at liberty itself, and so utterly 
 Inconsistent with the principles of a government of the people, for the people, as to 
 merit the rebuke of every functionary of the government whose duty it is to pass upon 
 their conduct. 
 
 8th. In that the poll-list, the boxes containing the ballots, and the statement of the 
 result of the election at the several precincts in the said county, were kept and 'trans- 
 ported after the election by persons other than the chairman of the board of managers, 
 or one of them, designated in writing before the said poll-lists, boxes, and statements 
 were delivered to the county canvassers. 
 
 1st. In that at Grier'.s precinct the board of managers of election were not properly 
 organised as MICH as the law requires ; they were not sworn as managers, nor was the 
 clerk of the board sworn according to law. 
 
 1st. In that at Birdville precinct the board of managers of election were not prop- 
 erly organized as such as the law requires ; they were not sworn as managers, nor was 
 the clerk of the board sworn according to law. 
 
 1st. lu that at San tee precinct the board of managers of election was not properly 
 organized as such as the law requires: they were not regularly sworn as managers, 
 nor was the clerk of the board sworn according to law. 
 
 1st. In that at Brown's Ferry precinct the said poll was managed and conducted by 
 only two managers, one only of whom was sworn to conduct and manage the said elec- 
 tion according to law in such case made and provided. 
 
 1st. In that at Brown's Ferry precinct the board of managers of election was not 
 properly organized as such as the law required ; they were not regularly sworn accord- 
 ing to law. 
 
 sid. In that the ballot-box from the Brown's Ferry poll was carried by one of the 
 managers of election to the house of J. Hawley Jones, who is a candidate (upon the 
 Republican ticket, and a political friend of said Rainey) for election as county commis- 
 sioner, and remained then- some time before being turned over to the commissioners 
 of election. That said box, when turned over, had every indication of having been 
 tampered with. 
 
 1. In that at Brooks Green precinct the board of managers of election were not 
 properly organized as such as the law requires: they were not regularly sworn as 
 managers, nor was the clerk of the board sworn according to law. 
 
 Because there was at the polls above mentioned, to wit, at Saiitee, Brown's Ferry, 
 Brooks Green, Griefs, and Birdville, intimidation of the electors (both before and 
 duriug the election) who desired to vote the Democratic ticket, by threatening and 
 violent language and conduct, to such an extent that the electors w<ere prevented from 
 giving free expression of their choice of candidates in casting their votes, to wit, at 
 least six hundred voters. Because, a large number of persons, to wit, five hundred 
 persons, who voted more than once, or who, though not qualified to vote, were allowed 
 to vote and did voti at the various polls in said county at said election. 
 
 The contestant, therefore, and for the reasons stated, asks and demands that the 
 baliots cast at the said several polls in the said county of Georgetown shall be rejected 
 and entirely excluded. 
 
 In Williamsburgh County: 
 
 1st. Because there was inaugurated in said county an extended terrorism, especially 
 over colored electors, on the part of the colored citizens of said county, both male and 
 female, all Republicans, and the political friends of the said Rainey, resulting in the 
 intimidation of great numbers of colored electors, and in preventing the said electors 
 from voting the Democratic ticket and from voting for this contestant. 
 
 2d. Because the political friends of the said Raiuey, at various voting-precincts in 
 said county, on the day of said election, and on various days preceding said election, 
 by threats and exhibitiousof arms and force, intimidated and compelled colored elect- 
 ors to vote the Republican ticket and for said Rainey, aud intimidated and prevented 
 other colored electors from voting for this contestant. 
 
 3d. Because a large number of persons, to wit, three hundred persons, voted more 
 than once, or who, though not qualified to vote, were allowed to vote and did vote at 
 the various polls in said county at said election. 
 
 4t'n. Because a poll was opened at Levy's store, in said county, on the day of said 
 election, without legal authority for opening or holding said poll, and many ballots, 
 to wit, five hundred and forty ballots, were received and counted as coming from said 
 illegal poll. 
 
 Thia contestant, therefore, and for the reasons *tated. asks aud demands that the 
 votes polled at said Levy's store, and the said illegal votes in said couuty of 
 burgh, be rejected and entirely excluded. 
 
 Your memorialist claims :
 
 228 DIGEST OF ELECTION CASKS. 
 
 1st. That he, the .said John L. Richard.M.n. has received a majority of all the legal 
 votes* cast at the said general election for the office of member of Congress from the 
 first Congressional district of South Carolina to the Forty fifth Congress of the United 
 States, and that he is entitled to take said seat. 
 
 '2d. That the said Joseph H. Raiuey has not received a majority of the, legal votes 
 cast for said oflioe at said election, and that he is therefore not entitli-d to take said 
 seat in said Confess. 
 
 3d. That the said Rainey has not the, prima facie right, hy virtue of the certificate 
 he holds, 'o take said s. at. 
 
 4th. That in the event your honorahle. body shall hold that this contestant is not 
 entitled to said scat, yonr memorialist claims, for the various reasons set forth in his 
 grounds of contest, that said seat shall be declared vacant. 
 
 5th. Contestant further objects to the regularity and legality of the 
 returns, and claims that the certificate of the contests based thereon is 
 also irregular and illegal. 
 
 To these grounds, and the notice of contest based thereon, the con 
 testee pleadsgeneral and special denial, and then sets tip counter-charges 
 of intimidation, threats, and violence at various polls in various counties 
 in the district upon the part of contestant and his political friends. 
 whereby he alleges he was deprived of many hundred votes : and he 
 especially objects that the vote of HoVry County was not returned in 
 conformity with law. Some other vague allegations of voters having 
 repeated their votes are also charged by him as having been done at 
 various polling-places to his prejudice. 
 
 It may be as well right here to dispose of the counter-charges of the 
 sitting member. The committee fail to tiud them sustained by proof. 
 Indeed they are not insisted upon in the very able and elaborate argu- 
 ments, oral and written, presented by the distinguished counsel for 
 contestee. 
 
 The eight hundred pages of printed testimony fail to show a single 
 instance of intimidation or attempted intimidation upon the part of 
 contestee and his political friends. The evidence shows close, compact 
 organization upon the part of the Democrats ; that they had the usual 
 demonstrations ; that they resorted to the machinery usual in political 
 campaigns. True some of the clubs gave certificates to colored men of 
 their membership in Democratic clubs, and it was understood that such 
 as bore these certificates should have preference for employment and 
 for renting lands. 
 
 The following is a sample of the avowal of the Democrats in this con- 
 nection, and is taken from Record, page 27 : 
 
 SUMTER, S. C., Octobir 25, 1876. 
 
 The Democratic executive committee recommend the adoption of the following 
 pledge. 
 
 J D. BLANDING, 
 
 Chairman Democratic Executin Committee. 
 A. W. SUDER, Secretary. 
 
 , \ 
 THK STATE OF SOUTH CAROLINA : 
 
 We, the undersigned, citizens of Sumter County, hereby pledge ourselves (each for 
 himself) that we will not assist or extend any favor to any person of either race or 
 color who shall vote for the Republican State or county ticket at the election on 7th 
 November next; and that we will, in all business transactions, give the preference to 
 such persons as shall vote the Democratic State and county ticket at said election. 
 
 The committee do not justify or vindicate this method of influencing 
 voters. It is wrong, and should be condemned. No influences other 
 than appeals to reason and conscience and the peaceful attempt to en- 
 lighten the mind and influence the judgment of the voter should ever 
 be resorted to. The party that threatens with loss of employment, 
 entailing want, privation, and suffering, is just as culpable as one
 
 RICHARDSON VS. RAINEY. 229 
 
 who resorts to bribery to accomplish political ends. These preference 
 pledges and threats are also in direct conflict with section 5509 Eevised 
 Statutes United States. It is a sad commentary upon the political con- 
 duct of our times that such influences as were sought to be exercised by 
 these pledges are in frequent, almost universal, practice in every sec- 
 tion of the country. 
 
 In the vast factories and founderies and machine-shops, even in navy- 
 yards and custom-houses and Government departments, such influences 
 have been openly practiced and tolerated for years. But neither two 
 wrongs, nor a thousand, can make a right, and custom can never give 
 legal sanction to practices so foreign to the spirit of free suffrage. 
 
 With regard to the case at bar, the proof shows that but few clubs in 
 the contested district adopted these pledges, and none carried them 
 out. But had they been universally adopted and carried out it would 
 but strengthen the conclusion arrived at by your committee, and fur- 
 nish additional reason for declaring the election not a full or free elec- 
 tion, and therefore void. The committee conclude this point by declar- 
 ing that in their judgment the charges of intimidation contained in the 
 reply of the sitting member are hot sustained. 
 
 In considering the grounds upon which contestant bases his claim to 
 be seated, we will take them up in the inverse order in which they are 
 hereinbefore set forth. 
 
 It will be remembered that the fifth ground of contest, as numbered 
 in this report, goes entirely to the certificate of the sitting member. 
 
 This objection might have been properly urged upon a contest for the 
 prima facie right. In such contests, the certificate is the sole considera- 
 tion, But the House of Representatives passed upon the whole ques- 
 tion raised by this objection last October, when, at the extra session, 
 it voted to seat the contestee upon the //? facie right. It can form, 
 therefore, no proper question in this contest upon the merits, and is 
 therefore not entitled to further consideration. 
 
 The fourth ground of contest, in the order of this report, embraces 
 numerous objections to the counting of numerous polls in various coun- 
 ties of the contested district. 
 
 The irregularities and informalities of this class which the contestant 
 regards as fatal to the vote in different counties and precincts of the 
 district are the following : A failure of one or more precinct officers to 
 take the oath of office prescribed by luw; a failure of one or more of 
 the precinct officers to file the official oath in the office of the secretary 
 of state ; a failure to appoint a clerk of election according to law ; a 
 failure of the precinct officers to organize as a board ; a failure to keep 
 a poll-list according to law ; a failure to open the polls at the hour fixed 
 by law ; a failure of the clerk to take the oath of office prescribed by 
 law; the fact that a ballot-box contained more than one opening; the 
 circumstance that but one United States supervisor attended the elec- 
 tion; an adjournment of the polls during the day; a failure to keep a 
 tally-list ; a failure to count the ballots immediately after the close of 
 the poll ; a failure to administer the oath prescribed by law to the 
 electors ; the fact that the poll-list, ballot-boxes, and statements of 
 results were not delivered to the county canvassers by the chairmen of 
 the precinct boards ; the refusal of the county canvassers to entertain 
 and decide upon protests presented by electors ; the fact that the elec- 
 tion was conducted by two instead of three precinct officers, and the 
 fact that the county canvassers opened the ballot-boxes when they 
 canvassed the votes. 
 
 These objections are most elaborately set forth and discussed by the
 
 230 DIGEST OF ELECTION CASES. 
 
 contestant and the counsel for contestee. It will be observed that most 
 of the objections relate to violations of the election law that are purely 
 directory in their character. Their violation, if no fraud be shown to 
 have resulted therefrom, cannot vitiate an election. It is wholly differ- 
 ent when mandatory provisions of an election law are violated. In the 
 latter case the election is void. 
 
 But the voter is not to be deprived of his right, and the citizens are 
 not to lose the result of an election fairly held because of some unim- 
 portant omission of form, or of the neglect, carelessness, or ignorance 
 of some election officer, or the failure to carry out some unimportant 
 direction of the law. (Vide McCrary's Law of Elections; Cooley, 
 Const. Limitations; Botts r. Jones, 1 Bartlett, 73; People r. Cook, 4 
 Selden, 67 ; Taylor v Taylor, 10 Minn., 107 ; People r. Cook, 14 Bar- 
 bour, 259 ; Barnes v. Adams, 2d Bartlett, 704; Blair v. Barrett, 1 Bart- 
 lett, 313 ; Cox v. Strait, decided in Forty-fourth Congress, and other 
 authorities.) 
 
 Your committee find that the irregularities complained of, even if 
 true in every particular, are infractions of directory provisions of the 
 law and are unaccompanied by proof of fraud, and ought not, therefore, 
 to vitiate the election of themselves. But there being in this case 
 graver and more serious causes of contest the committee do not con- 
 sider it necessary to further consider the various irregularities com- 
 plained of in the third ground. 
 
 We come now to consider the more serious issues presented by this 
 case, which are in the order of this report set forth as contestant's 
 first, second, and third grounds of contest, and may be classed under 
 the general head of intimidation. Under the evidence in this case it 
 may be divided into three kinds : 
 
 1st. The intimidation exercised by the Government of the United 
 States through its military power, in sending troops into the election 
 districts, stationing them at or near the polls. 
 
 2d. The terrorism produced by the armed colored Republican clubs 
 and militia. 
 
 3d. The religious and social intimidation produced by the threats of 
 social and religious ostracism and persecution, on the part ot the colored 
 Republican clubs and churches, upon the colored people who desired to 
 differ from them politically. 
 
 And for the purposes of a better understanding of the questions now 
 under consideration it is necessary to inquire very briefly into the politi- 
 cal and civil condition of South Carolina and trace the causes which led 
 to the extraordinary political campaign in that State in 1876. 
 
 Under the reconstruction acts a baud of adventurers, pandering to the 
 passions and prejudices of the colored race, representing, or professing 
 to represent, both the Government of the United States and the Repub- 
 lican party the one having devised the idea of the freedom of the negro, 
 and the other having enforced the idea, inflaming the minds and hearts 
 of the colored race, a race long in bondage and unused to political 
 thought and action, and not wise enough to see that the wily adven- 
 turers were using them for their own base ends succeeded in getting 
 possession of every department of the government of unhappy South 
 Carolina. Then began the sickening scenes of that regime of theft and 
 robbery, that period of misrule and plunder which constitute in our 
 history its saddest picture.' 
 
 Under the new regime a mob of men assembled as a legislature, the 
 individuals composing which, with a few exceptions, were unable to 
 read or write, corrupt at heart, intent only upon such legislation as
 
 RICHARDSON VS. RAINEY. 231 
 
 would afford them plunder, imposing 1 upon the people writs of confis- 
 cation under the name of taxation, selling their legislative votes and 
 influence as coolly as the tradesman barters his wares, deaf to every in- 
 terest of the stricken State, heedless of the protestations of the tax- 
 payers and property-owners, callous and careless of every voice and in- 
 terest, save the voice of avarice and the interest of their insatiate 
 greed. 
 
 Judges, under this regime, went upon the bench, for the most part 
 ignorant and venal, who regarded their right to decide in causes before 
 them as so much personal property to be sold to the highest bidder. 
 
 Governors, under this strange regime, ascended the executive chair, 
 whose sole aim was to get the largest share in the wholesale plundering 
 that was going on all around them, and who regarded their signatures 
 to any bill before them and their right to appoint officials as so much 
 merchantable assets that they might dispose of to their greatest per- 
 sonal advantage. 
 
 A militia was organized, composed of one race exclusively, and gov- 
 ernment arms were placed in their hands, and they were taught as the 
 very first duty of the South Carolina militiaman, the highest creed of 
 their code, hatred and distrust of the white man. 
 
 Representatives and Senators without ability, character, or honesty 
 came here to fill the places of the Calhouus, the Rhetts, the Hammonds, 
 the Lowndeses, who have immortalized the eloquence and genius and 
 statesmanship of South Carolina. 
 
 In order that the work of plunder and misrule might go on, it was 
 necessary to keep the people of the great North ignorant of the real 
 condition of affairs, to make that people believe that the people of South 
 Carolina were still rebellious, still filled with revenge, still resisting the 
 will of the Government with regard to the emancipation and enfranchise- 
 ment of the colored race ; for well they knew that if the real truth in 
 regard to the condition of affairs in the plundered State ever reached 
 the American people there would come such a change of men and 
 measures as would forever check their career of crime and end their 
 work of spoliation. 
 
 To foment strife between the races ; to array black against white; to 
 invite the one to outrages which the other avenged with the strong 
 hand ; to import, as Ex-Governor Moses has recently confessed, roughs 
 and rowdies from Northern cities and array them in the weird garb of 
 the Ku-Kltix Klan, and then cause them to commit outrages which were 
 charged upon the white race ; to arrest white citizens upon charge of 
 these outrages, and convict them by perjured testimony before hostile 
 juries and judges; to make of the State a vast mint, and of the blood 
 and tears and sorrows of both races the bullion whereof was continually 
 coined the newest and most valuable political capital ; such was the 
 government and such the "love's labors" of the governors and rulers of 
 South Carolina. 
 
 And, saddest of all to relate, the soldier of the United States was at 
 intervals employed to guard, to protect, to guarantee this the most mon- 
 strous crime in the name of human government that ever stained earth 
 or shocked high Heaven. 
 
 The debt of the State grew larger and more onerous, values shrunk 
 apace, taxation increased, labor was demoralized and disorganized, and 
 universal bankruptcy and social and moral ruin threatened the people 
 of the entire State. 
 
 Such was the condition of affairs in 1876 when the political campaign 
 opened. The white tax-paying people of the State knew that they could
 
 232 DIGEST OF ELECTION CASES. 
 
 not carry the State and bring back the rule of honesty and law unless 
 a large number of colored men joined and co-operated with them. 
 Hence they nominated their purest man for governor, one whose name 
 was the guarantee to every man in South Carolina that he would keep 
 to the letter every pledge he made. 
 
 The campaign was to be one of conciliation and kindness toward the 
 iiegro, a great effort to win him over to the side of good government 
 and honest officials. The platform of principles put forth by the sup- 
 porters of Hampton were broad, catholic, liberal. 
 
 The following, taken from report, pages 26 and 27, illustrates the tem- 
 per and tone of the Hampton party : 
 
 Resolved, That we organize ourselves into a Democratic club, to be known as "The 
 Suuiter Democratic Club; " that in order to do so we euroll our names, and proceed to 
 elect a president, two vice-presidents, a secretary, and a treasurer ; that the purposes 
 for which we organize are : 
 
 1st. To put ourselves in accord and communication with the national Democracy. 
 
 2d. And, as of the highest importance to us, to secure an honest, fair, aud econom- 
 ical administration in our county and State aftairs; and to effect this end we pledge 
 ourselves to abide by the action of tin- party as expressed in State and county con- 
 vention. 
 
 3d. To maintain the equal civil, political, and religious rights of all citizens, with- 
 out regard to their color or previous condition. 
 
 4th. That in the reform we seek, looking to the welfare and interest of our entire 
 people, honesty nnd.fitnf88for office shall be the first consideration. 
 
 5th. That with this end in view, and upon this broad platform, we invite all of our 
 fellow-citizens to unite with us. 
 
 Also the following, taken from report, pages 33 and 3 1 : 
 
 OFFICK SUMTER COUNTY DEMOCRATIC EXECUTIVE COMMITTEE, 
 
 Slimier, S. C., October 30, 1876. 
 
 The Democratic executive committee of Sum tor County urges all Democrats to carry 
 out the following instructions: 
 
 1. To avoid all measures of intimidation, particularly as to tiring of guns aud blow- 
 ing of horns on the night before and during the election. The party is solera ily com- 
 mitted, by all its protestations, to a peaceful election. Demonstrations of a peaceful 
 character, to keep up our own spirits and show our numbers and all moral forces, 
 hould be brought to bear to the utmost extent. 
 
 2. To exercise strict vigilance over the votes and the polls, and by all means to be 
 at the voting-precinct in full force before 6 o'clock Tuesday morning. 
 
 3. To look out especially for repeaters and the putting in of double tickets, keeping 
 a statement of such cases, and report same to these headquarters. 
 
 4. To keep one of our lists of votes and of the state of the polls, and report same 
 to me immediately after the box is closed. Let there be no delay, as all protests must 
 be made at once. 
 
 5. Send in full reports from each poll immediately after the votes are counted. 
 
 (>. Each Democratic manager is requested, in person, to hand me, on Wednesday 
 morning, a copy of the official statement of the count of his poll. 
 
 7. Look out for all improper practices of our opponents, and be prepared to prove 
 them if necessary. 
 
 8. Let it be publicly understood that the Democratic executive committee will indict 
 all persons who rate illegally. 
 
 JAMES D. BLANDING, 
 Chairman Democratic Executive Committee. 
 
 Peace, harmony, and conciliation were the watchwords of the cam- 
 paign and its spirit as from the party of Hampton toward the colored 
 race. 
 
 In this spirit the Democratic conventions in many counties nominated 
 tickets composed equally of white and colored men ; colored clubs were 
 organized; colored men were welcomed in Democratic processions and 
 at Democratic meetings, and the candidates of the Democratic party, 
 from governor down, uttered from the stump the most conciliating Ian-
 
 RICHARDSON VS. RAINEY. 233 
 
 guage. Governor Hampton's campaign throughout the State was an 
 ovation, in which colored and white men joined, and perfect peace and 
 tranquillity reigned in the State. ( Vide evidence of Hampton, Conner, 
 Wallace, Hayue, McMasters, Moise, R., pp. 242 to 249, and many others.) 
 
 Under these influences the colored people began to desert the Repub- 
 lican party and to join the Democratic party in large numbers. Many 
 of the better class of colored men were already ripe for such a move- 
 ment, having been disgusted by the lawless and infamous rule of the 
 Republican officials, and being weary also of strife and contention with 
 their white fellow-citizens. 
 
 The causes, too, which had led them in the earlier days of their en- 
 franchisement to herd in mass with the Republican party were becoming 
 less apparent. The colored man was coming to feel more secure in the 
 perpetuity of his civil and political freedom and less distrustful of his 
 white neighbors, and he was willing now to trust the government of the 
 State and the execution of its laws to the hands of white men. 
 
 The campaign by the middle of October showed the most tremendous 
 exertions and the utmost enthusiasm and confidence of success on the 
 part of the Democrats, and weakness, dismay, and demoralization on the 
 part of Chamberlain and his Republican followers. 
 
 Dismayed at the thought of defeat, which suggested not alone the 
 wrenching of plunder from their grasp, but also the possible punish- 
 ment of many of the plunderers and spoliators, the Republican leaders 
 resorted to the most desperate means to stem and reverse the mighty 
 tide of popular feeling that was running so strongly against them. 
 
 They counseled together and resolved to pursue the policy of whole- 
 sale intimidation against those colored people who dared to oppose them, 
 and to procure, if possible, the bringing of troops into the State. The 
 latter was necessary to their ends for two reasons : First, to prevent the 
 white clubs from protecting the colored Democrats ; and, secondly, to 
 overawe and impress the ignorant minds of the colored people with the 
 idea of power, and that the military arm of the Government was on the 
 side of, and to be used in behalf of, the Republican party. The process 
 of intimidation by Republican organizations against colored Democrats 
 was to be effected, first, by threatening, intimidating, and maltreating 
 them, and terrorizing them by means of armed colored organizations, 
 and, secondly, by bringing to bear upon them the fear of social and re- 
 ligious ostracism. 
 
 It will not be denied that these modes of electioneering are against 
 the spirit of free institutions and against the laws of the United States. 
 In giving to the citizen the right to vote iit all, the right to vote as he 
 chooses, free and untrammeled, was necessarily included. It does not 
 require any active constraint of the body to make out a case of intimi- 
 dation. It need not be that there is at the time of voting the presence 
 of threats, or of force, or the present fear of actual bodily hurt. The 
 genius of free institutions demands that the mind as well as the body 
 shall be free to exercise the elective franchise as the voter may see fit. 
 The fear of bodily harm, the fear of social ostracism, the fear of relig- 
 ious wrath, if brought to bear upon the body of voters, or if exercised 
 to any great extent, mar the purity and destroy the freedom of elections, 
 and if it be so general as to affect the result, or if from it the real result 
 cannot be ascertained from the returns, the election is void. McCrary 
 declares (p. 328, Law of Elections) : 
 
 The freedom of elections is of the utmost importance. The law justly regards all 
 attempts to interfere with the electors iu the peaceable and quiet exercise of their 
 rights, or to improperly influence men against their judgment or desire, as a crime.
 
 234 DIGEST OF ELECTION CASES. 
 
 Under this rule, most, if not all, of the States have enacted statutes 
 punishing the crime of bribery at elections, and the laws of the United 
 States punish as crimes auy undue influence, by threats, violence, or in- 
 timidation, upon the mind of the voter. But, again, Judge Cooley, in 
 his work on Constitutional Limitations (p. 614), declares : 
 
 To keep every election free from all the influences and surroundings which might 
 bear improperly upon it, or might impel the electors to cast their suffrages otherwise 
 than as their judgments would dictate, has always been a prominent object in Ameri- 
 can legislation. 
 
 Again : 
 
 If the violence and intimidation has been so extensive and general as To render it 
 certain that there has been no fair and free expression of popular will by the great 
 body of the electors, then the election must be set aside, notwithstanding the fact 
 that in some of the precincts and counties there was a peaceable and fair election. 
 (2 McCrary's Law of Elections, p. 326.) 
 
 The laws of the States and of the United States, the spirit of popular 
 government, the laws and precedents of England and English courts all 
 tend to the principle that the elector shall vote and vote according to 
 the dictates of his judgment, untrammeled and uninfluenced by any im- 
 proper influences. 5fot only has intimidation by violence and threats. 
 or the presence of armed troops at or near the polls, or of armed men 
 other than troops, and bribery, the promise of advancement, the treating 
 of electors to influence their votes been held as causes that interfered 
 with the freedom and purity of elections, but most of the States have 
 laws which forbid courts to be held, or process served on election day. 
 or militia musters to take place, accounting that these might be used as 
 means of intimidation or of improper influence. A great English lawyer, 
 who is standard authority upon the common law, has written that "it is 
 essential to the very existence of Parliament that elections should be 
 free; wherefore all undue influences on electors are illegal." (1 Black- 
 stone, p. 177.) And in a recent case which arose in Canada, Mr. Justice 
 Ritchie said : 
 
 The rights of individual electors are the rights of the public. * * * The public 
 policy of all free constitutional governments in which the electoral principle is a lead- 
 ing element (at any rate in the British constitution) is to secure freedom of election. 
 h A violation of this principle is equally at variance with good government 
 and subversive of popular rights and liberties. (Brassard etal. r. Langevin, Supreme 
 Court, Canada. Decided January, 1877.) 
 
 This case was one of controverted election. It arose from the county 
 of Charlevoix, in which an election for member of the Canadian Parlia- 
 ment was held in January, 1876. The respondent was declared elected. 
 His election was contested, upon the ground that "undue" spiritual or 
 religious influence had been exercised by the priests of certain parishes 
 in the county, under the ninety-fifth section of the election act of 1874. 
 The section is as follows : 
 
 SKC. 95. Every person who, directly or indirectly, by himself or by any other person 
 on his behalf, makes use of, or threatens to make use of,* any force, violence, or restraint. 
 or inflicts or threatens the infliction, by himself or by or through any other person, of 
 any injury, damage, harm, or loss, or in any manner practices intimidation upon or 
 against any person, in order to induce or compel such person to vote or to refrain from 
 voting, or on account of such person having voted or refrained from voting, at any 
 election, or who by abduction, duress, or any fraudulent device or contrivance impedes, 
 prevents, or otherwise interferes with the free exercise of the franchise of any voter, 
 or thereby compels, induces, or prevails upon any voter to give or refrain from giving 
 his vote at any election, shall be deemed to have committed the offense of undue, in- 
 fluence. 
 
 The proof was that the respondent was supported by all the priests 
 of the Roman Catholic Church, and that from their pulpits one priest
 
 RICHARDSON VS. RAINEY. 235 
 
 had declared that to vote against respondent and for his opponent "was 
 a grave sin, a matter of conscience." Another priest characterized such 
 a vote as a "mortal sin." Another said that with "that party (the 
 party opposed to respondent) in power, we would wade in the blood of 
 priests; thafe the horrors of the French revolution would be re-enacted ; 
 that, to prevent these misfortunes, liberalism must be crushed by the 
 people and the clergy." Another declared to his flock "that it was a 
 sin to vote for the liberal party, and that at the hour of death those 
 who voted for that party would regret it." Another said, " Whoever 
 votes for Mr. Treinblay (the opponent of respondent) would be guilty 
 of a grave sin, and if he died after so voting he would not be entitled to 
 the services of a priest." There was no proof that respondent had in- 
 cited these sermons. But the court had no difficulty in determining the 
 question of agency, and said : 
 
 Decisions in England, the election law of which is identical with ours, and those 
 rendered in Ontario and Quebec, lay down the. principle that every person who, in 
 good faith, takes part in an election for a candidate with his consent, becomes ipso 
 facto an agent of the candidate. I'pon that point there can be no doubt ; and the 
 election of a prominent member of Parliament was annulled in consequence of the 
 excessive zeal of his agents. 
 
 All these sermons [said the court], accompanied by threats and declarations of cases 
 of conscience, were of a nature to produce in the mind of a large number of electors 
 of the county, compelled lo hear These things during several consecutive Sundays, a 
 serious dread of committing a grievous sin and that of being deprived of the sacra- 
 ments. There is here an exerting of undue influence of the worst kind, inasmuch as 
 these threats and declarations fell from the lips of the priest speaking from the pul- 
 pit in the name of religion, and were addressed to persons of little instruction, and. 
 generally well disposed to follow the counsels of their cure's. I can conceive that 
 these sermons may have had no influence whatever on the intelligent and instructed 
 portion of the hearers: nevertheless, I have no doubt but these sermons must have 
 influenced the majority of persons void of instruction, notwithstanding that by reason 
 of the secrecy in voting by ballot it has not been possible to point out more than six 
 or ciuht voter- as having been influenced to the extent of affecting their will. Ac- 
 cording to the testimony of over fifteen witnesses, a very large number changed their 
 opinion in consequence of this undue influence. I may here state that in like cases, 
 to annul an election a large number of cases of undue influence by a candidate, or an 
 agent, is not required, and that one single case, well proved, suffices, although the 
 candidate availing himself of it may have had an overwhelming majority. 
 
 Taking the evidence as a whole, it appears clear that a general system 
 of intimidation was practiced; that as a consequence undue influence 
 was exercised and the electors did not consider themselves free in the 
 exercise of their elective franchise. Vide Mayo election case, 1857; 
 Longford election case; Galway cases; case of county of Bouaventura. 
 
 The principle of all the decisions in all these cases is that the priest 
 must not appeal to the fears of his hearers, nor say that the elector who 
 votes for such a candidate will commit a sin or incur ecclesiastical cen- 
 sures or be deprived of the sacraments. And the court annulled the 
 election and declared it void. 
 
 The committee have quoted extensively from the decision in this case 
 inasmuch as the principle it lays down as well as the principle of the 
 authorities it cites is applicable to some extent to the case at bar. 
 
 The colored race of the South, through no fault of that race rather let 
 it be written by its misfortune is ignorant and to some degree super- 
 stitious. A strong vein of religious superstition runs through the char- 
 acter of that race. Most of them are members of churches, and the 
 authority of their priests and preachers is almost absolute in all social and 
 religious matters. Emancipated but a short time ago, dreading above all 
 things a return to slavery, ignorant of the lasting character of that charter 
 which gave to him his liberty, fearful that some change may relegate him 
 to his former condition of servitude, with but little will of his own, depend-
 
 236 DIGEST OF ELECTION CASE$. 
 
 ent for his social and political guidance upon bis spiritual advisers of bis 
 own race or tbe counsels of those of the dominant race wbo profess utter 
 sympathy with all his passions and prejudices, the colored race of the 
 South constitutes an element most liable to be influenced by the arts of 
 the demagogue or the chicanery and hypocricy of priestcraft. To keep 
 the colored man in ignorance, to pander to his fears and hopes, his pas- 
 sions and prejudices, to separate him from the influences of his former 
 masters, has been the great object with those bad men who have been 
 bis counselors, advisers, and political taskmasters through the past ten 
 years. They never appeal to his reason or judgment. 
 
 They bold up before his excited imagination the horrors of a return to 
 slavery, the deprivation of his social, political, and religious privileges; 
 they teach him that the white man is his enemy; they corrupt and uti- 
 lize the authority of the colored preachers, and threaten with loss of 
 church privileges, the ostracism from society, the absolute severance of 
 the marital tie, those who act or vote against their will. 
 
 The record in this case discloses a condition of moral, social, and re- 
 ligious intolerance and intimidation exercised by the adherents and po- 
 litical friends of the sitting member in tbe first Congressional district ot 
 South Carolina that renders the idea of freedom of thought and opinion, 
 the idea of free political action, on the part of the colored race, an utter 
 mockery and delusion. 
 
 Preachers preached against tbe Democratic party. Threats of "turn- 
 ing out of tbe church" those wbo acted and voted with that party, threats 
 of divorce from wife and separation from children, threats of social os- 
 tracism, were indulged throughout the entire district. Colored women 
 assaulted and heaped epithets upon those men of their own race wbo 
 dared to act with the Democratic party. Colored men were told that 
 there was for them no social, moral, or religious existence or affiliation 
 with their own race if they acted or voted otherwise than in obedience 
 to the behests the Republican leaders. It is even shown in the record 
 that the sitting member declared that all colored men who acted with 
 the Democratic party " should be treated as enemies." And this feeling 
 and these appeals were not confined to any particular or isolated com- 
 munity or portion of the district, but existed and were exercised through- 
 out the entire district. Your committee feel constrained to declare that 
 undue, illegal, and improper influences were brought to bear upon the 
 vast mass of colored voters throughout the first Congressional district 
 of South Carolina, and while the proof of the extent of the influence and 
 of its control cannot be arrived at with any degree of accuracy from the 
 evidence, yet sufficient is shown to leave no doubt but that these undue 
 influences were widely felt, and prevented, in the district, in contest, a 
 free, fair, and full election. 
 
 But if any doubt were left in the minds of your committee of the per- 
 fect propriety of declaring the election in the first South Carolina dis- 
 trict null and void for tbe grounds heretofore examined, the doubt is 
 solved because of the wholesale intimidation practiced by armed colored 
 clubs and organizations during the campaign and at the polls on elec- 
 tion day. The evidence is clear that throughout the district, and in 
 nearly every precinct of tbe district, these organizations existed. They 
 were armed with tbe State arms for the most part, but many had pri- 
 vate arms. They went to their political meetings with arms in their 
 hands, and at many of the polling places they appeared on election day 
 in organized force. 
 
 So intolerant were they against individuals of their own race who dif- 
 fered with them politically that they uttered against them the most
 
 RICHARDSON VS. RAINEY. 237 
 
 terrible threats, and, in some cases, resorted to actual violence. They 
 denied the right of free speech ; they tore tickets from the hands of 
 voters and substituted others: they interfered with the domestic peace 
 of colored Democrats by persuading their wives to leave them, and left 
 no device that could intimidate unemployed to coerce men of their own 
 olor into voting the Republican ticket. Evidence clear and indisputa- 
 ble is found in the record of this state of facts, and of the widespread 
 influence with this mode of electioneering produced in the minds of 
 the colored voters. 
 
 It will not suffice to meet these facts by saying that both sides resorted 
 to this system of tactics. The record does not sustain the charge of in- 
 timidation generally against the , Democratic party of South Carolina. 
 The proof is clear that they pursued the policy of conciliation for the 
 most part. Especially was this the course that characterized the cam- 
 paign of contestant. 
 
 Governor Hampton testifies, and he is amply corroborated by other 
 witnesses, that contestant pursued "the extreme policy of conciliation." 
 
 But grant that it was true. Grant all that is claimed against the 
 u rifle clubs'' and other organizations of the white people. Grant that 
 they, too, pursued the lawless policy adopted by the Republicans. It 
 but affords the committee more and stronger grounds for declaring the 
 election null and void. The committee append hereto extracts from the 
 testimony of a few witnesses upon this point. 
 
 Elniore Dnrant, colored (Record, pp. 84-85) : 
 
 Question. Did yon join the Democratic party during the last campaign and vote 
 that ticket ? Answer. I did both. 
 
 Q. Was any influence brought to bear ou you or anything done either to cause yon 
 to vote or not to vote that ticket ? A. 1 was frequently warned that I would suffer 
 personal injury if I did not quit the Democrats and return to the Republican party. 
 As the election drew near it got hotter, and one morning I found a written paper at my 
 door which warned me that two weeks only were left for me to change in, when, if I 
 did not return to the Republican party, my light would be put out. 
 
 Q. What other information can you give IA. 1 was working at town ; my house 
 was 2f miles from town. 1 and my wife had lived in peace until I joined the Demo- 
 crats ; we have parted since for that reason. One moruing my wife informed me that 
 two colored men came along on horseback and said that I would not be on that road 
 iong, unless I turned from the Democrat*, and my wife advised me to return to the 
 Republicans or I would be killed some night. My wife's father (Dick Moore) cursed 
 me and said if I continued to stay with the Democrats I ought to have my throat cut. 
 He influenced my wife to dissatisfy her, and at last I slapped her. That night her 
 father advised her to leave me, calling me a damned Democrat. My wife left me in 
 September or 1st October, and on the ground that I had joined the Democrats. 
 
 Isham Robinson (colored) sworn (Record, p. 87) : 
 
 Question. When did yon unite yourself with the Democratic party? Answer. In 
 March last. 
 
 Q. Tell anything that was said to you to make you vote either for or against the 
 Republican party. A. Just before Hampton made his speech in Suuiter they came to 
 his house on a Saturday night and set tire to my cow-pen on both sides. The wind 
 was very high at the time. I ran out aud drew the fence down, and, with the help 
 of my family, put the fire out. 
 
 Q. Have yon heard any threats previous to your cow-pen being set on tireT A. I 
 did hear, and all that would vote the Democratic ticket would be burned out. 
 
 (Objected to as hearsay.) 
 
 In consequence of these threats I set up and guarded my premises for two weeks 
 thereafter, and did not vote- on the day of election. 
 
 Q. Any other threats? A. I heard it said, ''Old Isham Robinson joined the Dem- 
 ocrats, and ought to be whipped." 
 
 Minus Felder (colored) sworn (Record, p. 88) : 
 
 Question. When did you unite yourself with the Democratic club of Snmter 
 County ? Answer. During the last summer. 
 
 Q. State what influences were brought to bear upon you to cause you to vote for or
 
 238 DIGEST OF ELECTION CASES. 
 
 against the Democratic party. A. All they said, when 1 came to vote, a woman told 
 my wife at the depot that if I voted the Democratic ticket I must not come back to 
 the house ; and when I first joined the party some Republicans met me on the street 
 and told me that I was in danger if I voted the Democratic ticket. 
 (Objected to as hearsay and opinion.) 
 
 London Suinpter (colored) sworn (Record, p. 88) : 
 
 Question. When did you join the Democratic party ? Answer. In March last. 
 
 Q. Were any threats or influence brought to bear upon you to cause you to vote for 
 or against the Democratic party? If so, state them. A. The day before the election 
 I was threatened to get killed if I voted the Democratic ticket ; the information was- 
 brought to me by others. 
 
 (Objected to as hearsay.) 
 
 Saw that Isham Robinson's premises had been set on fire ; while canvassing the 
 county, James Gaston told me that- if I got to Weagetield, where I had an appoint- 
 ment to speak for the Democrats, that there was a party there intending to horsewhip 
 me ; that while going to Privateer for the same purpose, I was informed that I would 
 be murdered. 
 
 Cross-examination : 
 
 Q. Would you have been afraid to testify if colored men had been present f A. 1 
 would not. 
 
 Horace Bradley (colored) sworn (Record, p. 92): 
 
 Question. Did you join the Democratic party ? Answer. I did. 
 
 Q. Did you vote the Republican ticket ? A. I did vote the Republican ticket ; 
 scratched Mr. Rainey's name off and inserted Mr. Richardson's instead. 
 
 Q. You say you joined the Democratic club ; how came it that you voted the Repub- 
 lican ticket ? A. They told me if I voted the Democratic ticket they would throw me 
 out of the brotherhood society and pitch me out of doors head foremost. 
 
 Q. What else was told you would be done to you if you voted the Democratic 
 ticket? A. Governor Chamberlain was to turn out all the convicts in the peniten- 
 tiary, and all the colored people voted the Democratic ticket were to put in their places ; 
 that all the troops would drive us to the polls and make us vote the radical ticket; 
 those that did not vote the radical ticket were to be put on a list and go to the peni- 
 tentiary. 
 
 Q. Where did you hear that talk ? A. Right in our church, at the society meeting. 
 
 Q. Was there anything said, and, if so, what, about turning you out of the so- 
 ciety? A. If I voted the Democratic ticket I was to be put out, or if I put an addi- 
 tional Democratic name on the ticket I was to be put out also. 
 
 Q. What was it, now, that caused you not to vote the Democratic ticket? A. Tbe 
 reason stated, and in addition, because they told me that Chamberlain was to erect 
 large stores throughout the country for the benefit of all Republican voters, and that 
 the ones voting the Democratic ticket were to be placed in fields with drivers over them 
 and the children to be put back into slaver}' ; this caused me to take my name off the 
 Democratic club list. 
 
 Cross-examination : 
 Q. Was this brotherhood a political club? A. It was. 
 
 Robert Ross (colored) (Record, p. 93): 
 
 Question. Were any threats or undue influences brought to bear on you to keep you 
 from canvassing the county for the Democrats and to keep you from voting the Demo- 
 cratic ticket? If so, state what. Answer. They were. 1 was told that if i should go 
 to Privateer to speak I would not return alive, and I better had fast horses to git 
 away, because the coons down there said they don't intend to allow any Democratic 
 niggers to address them in that section. 
 
 (Objected to as hearsay.) 
 
 I was a member of the Union Brotherhood with Abram Rulh'an, and we joined the 
 Democratic club; they turned us out; would not hear from us at all, and threateued 
 to turn us out head foremost. 
 
 Q. W T hat reason was assigned to you. and who by, for the introduction of the 
 troops? A. I heard it from the court-house ring and the brotherhood that they were 
 brought here for the protection of the Republican party, aud to carr> the election for 
 the Republicans. I heard this right at tho court-house. 
 
 D. E. Keels (Record, p. <J6) : 
 
 Question. Was there any intimidation of colored votrr^ liy < o'orrd pcop'e which
 
 RICHARDSON VS. RAINEY. 239 
 
 came uiider your knowledge? If so, state. Answer. A good many told me that if 
 colored people would join the Democrats they would whip them for so doing. 
 
 Q. Did these threats deter colored people from joining the Democrats? A. Of my 
 own knowledge, I do not know ; but colored people told me they were afraid of their 
 own color to join the Democratic party, and some said that their wives said they 
 would quit their husbands; others, that they would be turned out of churches. 
 
 (Object to so much as is hearsay.) 
 
 Kobert Broun sworn (Kecord, p. 97) : 
 
 Question. Were you a manager at any of the precincts at the late election? Answer. 
 I was not, but acted as the Democratic supervisor's clerk at Manchester poll, and was 
 there all day from 6 o'clock a. m. until the polls were closed that night, and until 
 after the votes were counted and certificates made out and properly signed. 
 
 Q. During the day did anything unusual occur? If so, state what it was. A. I 
 saw arms there claimed by Republicans, and none claimed by Democrats. 
 
 Q. What kind of arms and what were they you alluded to ? A. Soon after opening 
 of the polls I saw colored people riding up, displaying fire-arms freely : they came up 
 in squads; some of these arms were deposited on a wagon without a body on it, but 
 only a slat floor, within about fifty yards off and in full view of the polls. 
 
 Q. After riding up to the polls armed, how did these men proceed to vote? A. Left 
 their arms without the building, crowded in the house, and were sworn in several at 
 the time, and then voted; they were unusual boisterous about the polls and within 
 different distances of the house. 
 
 Q. Were any persons prevented from coming there to vote or from voting the Dem- 
 ocratic ticket there that day? A. Two of my tenants told me they were afraid to 
 vote there and went to Wedgefield to vote. 
 
 (Objected to.) 
 
 The colored manager, Jack Simons, a Republican, and chairman of the managers, 
 cautioned several against voting any but the Republican ticket. 
 
 Isaac Haynemutk (colored) sworn (Eecord, p. 99) : 
 
 Question. How did you propose to vote in the recent election ? Answer. Demo- 
 cratic. 
 
 Q. Which way did you vote? A. Radical. 
 
 Q. Why! A. Because I heard that they were burning out so many people, it kept 
 uie back. 
 
 Q. Did you hear of any other thing? A. Yes; I heard they were whipping. 
 
 Q. Who was it they said they would whip and burn out ? A. The Democrats. 
 
 Q. Where did you hear these things? A. Through the whole neighborhood. 
 
 (Objection to all hearsay.) 
 
 Q. Were the other colored people on the same place wit . you going to vote as you 
 did? A. They were going to vote the Democratic ticket, and refrained, from the 
 same rumors. 
 
 (Objected to as opinion.) 
 
 A. Baffin (colored) sworn (Kecord, p. 100) : 
 
 Question. Were you a citizen of Sumter County and located at Sumter during the 
 late campaign ? Answer. I was. 
 
 Q. Diet you canvass the county as a member of the Democratic club T A. I did. 
 
 Q. Do you know of any intimidation of colored Democrats? A. Soon after I joined 
 the Democratic party I had been for a long time a member of the Union Brotherhood 
 I attended a brotherhood meeting, which was turned into a political meeting after 
 the brotherhood business was over, and the necessity of keeping the brotherhood 
 together for political purposes was shown and discussed. I was pointed out as one of 
 the standard-bearers, yet had gone over to the Democrats, and thus sold my birthright 
 and nay children's freedom. I tried to be heard in my defense, and was stopped by 
 cries of "Put him out," "Kill him," &c. After that time the colored Republicans 
 hooted at me in the street, and they turned me out of the brotherhood, keeping iny 
 means which I had put in. 
 
 Q. What was the brotherhood formed for* A. At first for charitable purposes, and 
 afterward turned into political association. 
 
 Q. Were you ever imposed upon or maltreated for your Democratic opinions? A. I 
 was treated very roughly at Mayesville, abused and threatened with a whipping. At 
 Sumter I was informed by Mr. J. M. Tindall, candidate for sheriff of the county on the 
 Republican ticket, and at that time the sheriff, that if I went to Privateer I would be 
 whipped. He afterward said that I would be allowed to speak if I agreed that he was 
 to follow me, aud that I had better have a good horse to get away on. At Wedgefield 
 the buggy I was in was stopped, and I was very seriously threatened. The Rev. W. 
 E. Johnson was riding with me. He stopped the man who was threatening me and 
 sent him away. He was the Republican senator for the county.
 
 240 DIGEST OF ELECTION CASES 
 
 Q. Where were the Union Brotherhood organized ? A. At every precinct in the 
 county. 
 
 Q. Did they afterwards turn out -with political organizations of the Republican 
 party ? A. They were organized a good while before the campaign, but after the 
 campaign opened they turned out with banners, representing each election precinct 
 in the county, and joined the Republican processions. 
 
 Q. Were you present at Privateer when the sheriff", J. M. Tindall, made an addrewi 
 to the Union Brotherhood T A. I was. 
 
 Q. What sort of a speech was it f A. A political speech. 
 
 Q. Who else spoke? A. Senator Maxwell, of Marlborongh. 
 
 Q. W r as there any Union Brotherhood in it f A. None that I heard. 
 
 Q. Do you know of any threats made against colored people for affiliating with 
 Democrats? A. It was just a general tantalizing and threatening of them. Some 
 preachers never closed a sermon without bringing in the Democratic darkies. It was 
 the common cry that any negro who joined the Democrats ought to be killed. 
 
 Cross-examined : 
 
 Q. At the brotherhood meetings proper, were politics discussed ? A. No. 
 
 Q. Do not the rules forbid ? A. They do. 
 
 Q. Were not there political matters discussed after the brotherhood had adjourned ? 
 A. There were. 
 
 Q. Does the brotherhood, as such, ever transact business in public ? A. No, sir. 
 
 Q. When were you turned out of the brotherhood ? A. I can't tell the day of the 
 month ; I think it was in the month of September. 
 
 Q. Who ever refused you admission to the brotherhood npon your presenting your- 
 self for that purpose? A. The doorkeeper at the district meeting : I don't know his 
 name. 
 
 Q. Was you ever refused at any other time when you went there and knocked? A. 
 I never went; the doorkeeper told me that I was not recognized because I was a 
 Democrat. 
 
 Q. How was this meeting composed ? A. Of delegates from the different precinct 
 brotherhoods. 
 
 Q. Were any persons except delegates entitled to admission? A. Not that I know of. 
 
 Q. Were you a delegate? A. I was not. 
 
 Q. You speak of being threatened with a whipping at Mayesville; is it not a fart 
 that the threats were made by a drunken man who was kept off by other Republi- 
 cans? A. No, sir; the threats were not made by him; they were made by those 
 women and the crowd who were around for an hour before he came. 
 
 Q. Did the man who was drunk make threats? A. He pretended to be drunk; he 
 put his hand on my Democratic badge; he said, "You must put it off; we don't allow 
 no Democratic niggers here." 
 
 Q. Is not that the same man who was carried off? A. He was. 
 
 Q. Mention the preachers whom you have heard preach against the Democrats ? 
 A. I have heard James White. I only go to one church. He is the only one I heard. 
 
 Q. State who said that any colored man who voted the Democratic ticket should be 
 killed? A. I heard the general rumor that they ought to be killed. Sam MacDuffie 
 is one that I heard say so ; also Moses James. Those are all I now can recall to be 
 positive about. 
 
 Q. Where did you hear Sam MacDuffie say so? A. He told me so at the corner of 
 Mr. Cohen's store. 
 
 Q. Who was present? A. I cannot call names. I saw a crowd, but don't remember 
 persons. 
 
 Kalph Wilson (colored) sworn (Record, p. 102): 
 
 Question. Were yon a resident of this county? Answer. I am. 
 
 Q. Were you here during the last campaign and election? A. I was. 
 
 Q. Did you join the Democratic party and vote the Democratic ticket? A. I did. 
 
 Q. Were any threats made against you for joining the Democratic party and for de- 
 siring to vote the Democratic ticket? If so, state what threats, and who made by. 
 A. They threatened to whip me, and threatened also to burn out every Democratic 
 nigger; further stated that the troops came here to make them vote for the Republi- 
 can party. 
 
 Q. Who did yon hear these threats from? A. A great many from the Republicans 
 of Snmttr. 
 
 Q. Was it or was it not a fact that these reports and threats were geiierallv circu- 
 lated through the county? A. They were generally talked about among the colored 
 people. 
 
 Q. Do you know whether these threats and talk about the troops prevented colored 
 people from voting the Democratic ticket? A. I don't know, but the colored peoplr 
 seemed to be very much afraid.
 
 RICHARDSON VS. RAINEY. 241 
 
 Cross-examination : 
 
 Q. Did you believe that the troops were- sent here for the purpose of making colored 
 people vote the Republican ticket .' A. I did not. 
 
 Redirect: 
 
 Q. Did you or did you not try to make the colored people think the troops were not 
 sent here to make the colored people vote the Republican ticket? A. I did; every- 
 where I went. 
 
 Q. Did you succeed in doing so? A, I did not: a great many of them believed the 
 other way, and so stated to me. 
 
 Edward D. Shiver (colored) sworn (Record, p. 103): , 
 
 (..mention. Were you a resident of this county dnriug the late campaign and the day 
 of election? Answer. I was. 
 
 Q. Did you canvass the county and take an active part for the Democrats? A. I 
 certainly did. 
 
 Q. Were any threats made to you, or did any threats come to you for being a Demo- 
 crat and desiring to vote the Democratic ticket? A. There was, by a good many; did 
 not pay any particular attention to any one, I being a free man to do as I please about 
 voting; they told me it I voted the Democratic ticket I could not stay here, but should 
 vote The Republican ticket. 
 
 Q. What threats were made to you in Columbia? A. I went from here as a delegate 
 to the convention ; I was told that I could not stay there that night; that I would be 
 killed if I did. 
 
 (Objected to that as not applying, because Columbia is not in the Congressional 
 district. ) 
 
 Q. What was it said that the troops were brought here? A. The troops were 
 brought here for the purpose of keeping the niggers from voting the Democratic 
 ticker; this was generally circulated amongst the colored people. 
 
 Cross-examination : 
 
 Q. Can you name any one who threatened you, or who said the troops were brought 
 here to make the colored people vote the Republican ticket, or prevent them from 
 voting the Democratic ticket ? A. I cannot name any particular one. 
 
 Thomas D. McLeod sworn (Record, p. 104) : 
 
 Question. Are you a resident of this county? Answer. I am; of Rafting Creek 
 precinct. 
 
 Q. Where were you during the election and for some days previous thereto? A. I 
 was at Rafting Creek precinct. 
 
 Q. If you saw any notices posted in that neighborhood, what were they ? A. Abont 
 three miles from the polling-place I saw more than one notice posted; this was at 
 Brykin's Depot, in Kershaw County, and adjoining Rafting Creek precinct. 
 
 (Objected to as not being in this Congressional district.) 
 
 Q. Is that the depot where the people of your section ship and receive their mer- 
 chandise? A. Yes, it is. 
 
 Q. How frequent is the intercourse ? A. Every day. 
 
 Q. Did you see any other notice? A. I had one in my possession within one mile 
 of our precinct. 
 
 Q. What was the character of the notice? A. It read in this way: "We have 
 formed a baud of men to whip, four in hand, every colored man who joins the Demo- 
 cratic party to death, and after whipping, four in hand, to cut their ears off." 
 
 Q. Were the Republicans armed ? A. They were, with muskets and shot-guns. 
 
 Q. Where ? A. At Rafting Creek. 
 
 Q. To whom did you deliver the paper- notice you had in your possession ? A. To 
 Dr. E. J. Rembert. 
 
 Cross-examined : 
 
 Q. Were all the Republicans armed? A. I cannot say that they were all armed ; 
 the guns were not counted. 
 
 Q. How many did yon see armed ? A. To the best of my knowledge, without having 
 made any count on the spot, about one hundred and fifty muskets and shot-guns were 
 there. 
 
 Q. How many muskets and shot-guns did you see there ? A. I did notcount what 
 I saw. I only saw one wagon with muskets and shot-guns. I suppose that wagon 
 contained twenty-live. 
 
 Q. How many men did you see having muskets and shot-guns upon their persons? 
 A. None. 
 
 H. Mis.
 
 242 DIGEST OF ELECTION CASES. 
 
 Redirect : 
 
 Q. Was there any other company of armed men ? A. I heard so, but did not see 
 them. 
 
 D. A. Foxworth sworn (Record, p. 109) : 
 
 Question. Are yon a resident of the county, and were you during the last election f 
 Answer. I was. 
 
 Q. Was there, or was there not, a wide spread intimidation in this county over the 
 colored voters; and, if so, who was the intimidation exerted by f A. Exerted princi- 
 pally by the radical leaders aud the black. 
 
 Q. Were, or were not, the colored people actually afraid to vote the Democratic 
 ticket T A. Some of them were. Some who voted with the Democratic party before 
 were afraid to do so this time, and staid at home. 
 
 (Objected to.) 
 
 Q. What were they afraid oft A. Afraid of the threats made by the colored people. 
 
 Q. What were those threats ? A. Various threats. Threatened to be murdered, 
 mobbed, burned out, and some were badly beaten ; wives threatened to quit their 
 husbands if they voted the Democratic ticket ; in one instance, a woman who formerly 
 belonged to me, her son desired to join the Democratic party, and she threatened to 
 cut his throat. Six men on my place desired to vote the Democratic ticket, but did 
 not vote at all on account of the threats made. 
 
 (Objected to as a matter of opinion.) 
 
 Q. Did, or did not, the presence of the United States troops exert an influence ad- 
 Terse to the success of the Democratic ticket ? A. I am satisfied it did. 
 
 (Objected to as an opinion.) 
 
 Q. If the troops had not been introduced into the State and into this county, what 
 would have been the result of the election in this county? A. I think this county 
 would have been carried by the Democrats. 
 
 (Objected to as opinion.) 
 
 Q. Would that result have been achieved quietly anl peaceably, and without inter- 
 fering with the free right of suffrage? A. In my judgment it would have been carried 
 quietly and peaceably and without interference of the free right of suffrage. 
 
 (Objected to as opinion.) 
 
 Cross-examination : 
 
 Q. Is it not a fact that more colored people voted the Democratic ticket at the laet 
 election than ever before ? A. I think they did in the State, and perhaps in the 
 county. 
 
 Q. Did you hear these threats you speak of, or do you only testify from rumor? A. 
 I heard some myself; heard one woman say she would cut her son's throat if he joined 
 the Democratic party, and heard two women say they would not live with their hus- 
 bands if they voted the Democratic ticket; the rest of the threats is from hearsay. 
 
 Redirect: 
 
 Q. You stated as your opinion that more colored people voted the Democratic 
 ticket in the State and county than ever before ; is it not a fact that there never 
 was a Democratic ticket since reconstruction ? A. The first time the Democratic ticket 
 has ever been before the people since reconstruction. 
 
 Q. What did you mean by saying that some who had voted the "Democratic ticket 
 before ? " A. I mean who had voted with the whites. 
 
 (Objected to as not being in repl^.) 
 
 Q. State in what way the threats of burning, murdering, and moBbing those colored 
 men who voted the Democratic ticket came^to your knowledge. A. I heard the colored 
 people converse on the subject, and they even said if such and such persons, naming 
 them, would join the Democrats they would be burned out, murdered, mobbed, &c. 
 
 D. A. FOXWORTH. 
 
 Sidney W. Dick (colored) sworn (p. 110): 
 
 Question. Are you a minister of the gospel ? Answer. lam. 
 
 Q. Are you a resident and a voter in this county? A. lam. , 
 
 Q. What party did you belong to during the last campaign ? A. The Democratic 
 party. 
 
 Q. What churches \ver; you accustomed to preach at ? A. St. John's and Shephard's 
 Shed Methodist Episcopal church. 
 
 Q. Was anything done to you by these congregations ? If so, state what it was, and 
 why it was done. A. I went to church Sunday in October, went to the pulpit at 11 
 o'clock a. m. The leader called out of the pulpit, outdoors, and asked me if I was 
 going to vote with the Democrat*. I told him yes, I was going to vote for Hampton < 
 and for every man on the ticket. I never voted for Chamberlain in my life. Then
 
 RICHARDSON V.S. RAINEY. 243 
 
 Alferry Sanders, a member of the same congregation and a school-teacher, said if I 
 would vote i'or Hampton that I should not preach for these people, ami they should not 
 admit me into the pulpit. Upon this the trustees called a mcotiug for consultation, 
 and voted upon it in the church that I should not preach at all, and they never have 
 since, allowed me to preach. 
 
 Q. Were any tin-eats made against yon for joining the Democratic party? If so, 
 Bin to them. A. Four women met me on the streets, and told me that the men would 
 whip me. Numbers of persons I met on the highway threatened to whip me, hut I did 
 not pay any attention to them, and I went on. 
 
 E. M. Harriot (colored), being duly sworn, testified as follows (p. 114)': 
 
 Resides in Georgetown County, and was residing there at the last election. Wats 
 engaged in canvassing the county ; was a candidate on the Republican ticket. Early 
 in the morning went to the Santee poll, before it opened, and remained there until 
 about 8 o'clock a. m. Went to this poll to advocate Chamberlain and himself for elec- 
 tion himself for the State house of representatives. Distributed the Jones tickets, 
 but the people would not allow them distributed. Saw a great deal of fuss and noise 
 going on at the poll. The excited crowd would not allow one voter and others to vote 
 for this deponent. These votes were taken away and torn up. He saw that his re- 
 maining there would cans-e a fuss, since the general manner of the crowd was threat- 
 ening, and so he left the poll, fearing a disturbance.. This excited crowd did uotallow 
 the voters i.o vote ;ts they pleased. In a violent manner this crowd would not allow 
 any of the voters to take tickets from this deponent. They would not even allow him 
 to paste a a lip eont aining his own name over any one on the regular Republican tickets ; 
 but. in an excited manner, would let him have nothing to do with the tickets. 
 
 He didtiot vote at this poll, because he did not believe he would be allowed to vote 
 aehe pleased. These parties were advocating the ticket upon which J. H. Rainey was 
 a candidate. They were determined that 110 other ticket should be voted at the Santee 
 poll. 
 
 Saw Joseph Burt at the poll, who would meet the people as they came to the poll. 
 Burt was the distributer of the tickets at the Santee poll. These tickets were given to 
 him for distribution by the county chairman, who was Joseph H. Rainey. These 
 tickets had some of the printed names scratched out, and J. A. Bowly's name sub- 
 stituted in Bowly's own handwriting. 
 
 Deponent gave a large number of tickets to a large number of voters. He saw 
 many of these tickets torn up. Henry Smith told him there was no use to distribute 
 his tickets for they would be torn up. Deponent swears that he attended the poll at 
 the Santee precinct on the 7th November last; that he at that time met voters who 
 were willing to vote for him, and who proposed to allow him to substitute names on 
 tickets. He changed several tickets, but the crowd around would not allow the 
 voters to take back the tickets from him. The manner of this crowd was very bois- 
 terous and rough. Did not think it safe for him to remain at this poll ; thought it best 
 to go away. After this went away and offered voters whom he met other tickets. 
 These tickets were taken from them by one of the same boisterous party. 
 
 Eii Howard (colored) testified as follows, after being duly sworn (p. 
 116): 
 
 That he knows Joseph Bush, who lives on Santee. He was a candidate for county 
 rommis.iioncr on the Republican ticket. Saw Joseph Bush several times in George- 
 town before election-day. Heard him say just before the election, while speaking to 
 large crowd, that if any one was damned fool enough to carry Democratic tickets to 
 the Sautee poll he would be killed. Previous to this he, Joseph Bush, told this depo- 
 ne.nt i hat lie couid control the Sanree poll and make the people do whatever he said; 
 that the people would do whaT<>\er he told them. He explained to the deponent that 
 on one occasion he had quieted a riotous crowd on the Santee, and thus he believed he 
 had entire control over the people there. 
 
 Cross-examination : 
 
 That Joe Hush was speaking to the crowd in front of S. R. Cavis's store, when he made 
 those remarks about carrying Democratic tickets to the Santee poll. He did not stop 
 to identity any person in this crowd. His personal interview with Joe Bush took 
 place some three or tour weeks prior. No other person was preseut. Deponent testi- 
 fies that he was a Republican at that time and is not so now. 
 
 Redirect : 
 
 After what he had heard from .las. Bush, he, the deponent, would not have dared to 
 go to the Santee poll to % ote the Democratic ticket. 
 
 He heard generally talked about that colored men who voted the Democratic ticket 
 were not tit to live, and that preachers had said they were not fit to be members of the 
 ehurch. If he had voted the Democratic ticket he would have been afraid to let it be
 
 244 DIGEST OF ELECTION CASES. 
 
 kuown. Was in town when John S. Richardson attempted to speak To a crowd, and 
 was prevented from speaking by a crowd, of which Harvey Jones appeared to be the 
 Vader. Harvey was candidate for county commissioner on the Republican ticket. 
 
 This crowd would not allow a Democratic colored man to speak, some of them saying 
 that no colored Democrat should speak to them. 
 
 Postmaster E. C. Kainey was also with the crowd led by Harvey Jones. 
 
 He, the deponent, wanted with others to hear Richardson speak, but the crowd 
 -would not allow of it ; and so the speakers were prevented from speaking. 
 
 Has never heard one say that he was afraid to join the Democratic club. He ia a 
 man that stays in the town and never goes out in the country. 
 Cross-examination : 
 
 This disturbance alluded to, when John S. Richardson was prevented from speak- 
 ing, was more than a week previous to election day. Saw no disturbance like this on 
 the day of election. Saw nobody prevented from voting at the election. He heard 
 that the Democrats had said that no one who was true to the Democratic party would 
 vote the Republican ticket. 
 
 J. A. Jackson colored (Record, p. 120) : 
 
 It was supposed that the disbanding of the rifle-clubs would operate in such a man- 
 ner as to secure protection from colored Democrats, while the colored Republicans 
 wo aid be afforded every protection by the United States troops. 
 
 In the course of the canvass, went to several polls of the county. Was prohibited 
 from going to Santee and Bowbicket, and threatened with his life if he went there. 
 His life was threatened in Waccamaw, so that he was compelled to seek protection and 
 use stratagem to escape. One man told him "he would not allow auyd d Democrat 
 to come in that part of the county ; that such a one would have to lose his blood there 
 if he ever attempted it." Was frequently threatened with his life. 
 
 He knows there was considerable ostracizing of those who were Democrats; and the 
 threats of violence to him were such that he was prohibited from traveling and making 
 speeches to the people. He thinks that if the troops had been brqught into this State 
 for peace and the true protection of the votor. that it was essential to have some of 
 them in Georgetown to enable the Democratic colored voters to vote as they pleased. 
 He knows there was an application made for troops to protect the colored people who 
 wanted to vote the Reform ticket. This effort was unsuccessful. 
 
 He remembers when John S. Richardson was canvassing the county ; was present 
 when he attempted to address the people at a mass-meeting. He was frequently inter- 
 rupted by a noisy mob, who acted in such a manner as would demons of hell. He com- 
 pared the scene to the wilds of Africa. Fiendish howls and abrupt questions to the 
 speaker were beyond description. This behavior compelled Mr. Richardson to give up 
 the effort. J. Harvey Jones appeared to be the leader of this riotous mob. Oil this 
 same occasion a colored gentleman, named Hutchins, attempted to address the people 
 in behalf of the Democrats, but was not allowed. He was not allowed to speak at all. 
 He was led to believe that this behavior had been the result of a concocted plan on 
 the part of the Republican leaders to interrupt free speech. 
 
 At some of the polls he would not have dared to go on election-day. His life was 
 threatened. Does not think that any man wonld have dared to carry Democratic 
 tickets to these polls. The threats were so great and violent against colored Dem- 
 ocrats as to make them fear to act or vote freely. 
 
 The deponent says he is now shunned and ostracized by the Republicans because he 
 voted and acted according to the dictates of his own conscience. H'e believes the 
 noisy disturbance at the meeting at which Mr. Richardson attempted to speak \va 
 created by the friends of Joseph H. Rainey. He believes that bodily harm might have 
 resulted to the Democrat speakers on this occasion. 
 
 He knows there were threats held out by the church by a preacher against Demo- 
 cratic voters. They were told that the public schools would be closed up; that in 
 other parts of the country wives had split the heads of their husbands open, and they 
 might do it here. Such language from the pulpit had an influence upon the minds of 
 the people greater, after the disbaudment of the rifle-clubs and the arriving of United 
 States troops, than before. 
 
 He knows, of his own knowledge, of colored men who had told him, "If they voted 
 the Democratic ticket they would not dare to go to their wives," and two men told 
 him that " if they voted it they knew they would never see their homes alive." He 
 knows some eight or ten men who said that they would not join the Democratic clubs, 
 bnt would vote the Democratic ticket, if they could do so without its being known. 
 
 B. H. Williams was candidate on the straight Republican ticket for State senator. 
 He was a presiding elder in the A. M. E. Church, presiding over the district including 
 all of Georgetown, Horry, and part of Williamsburg Counties. 
 
 That previous to the election, at several public meetings, he saw the Republicans as 
 a general thing armed with gnus. At one meeting, on Pee Dee, saw nearly every Re- 
 publican present armed.
 
 RICHARDSON VS. RAIXEY. 245 
 
 T\ W. McGnsker (Becord, p. 122): 
 
 The next appointment was at the court-house in Georgetown. Saw a colored man 
 attempt to address the people from the court-house portico, bur the crowd wassobois- 
 tenms and riotous that he could not he heard at all. This man's name was Hutching, 
 a colored Democrat who was speaking in favor of reform. He heard from the crowd 
 calls for Richardson, and the expression, "We don't want to hear from nod d carpet- 
 bagger." They would not allow Hutching tospeak. Peter Woodhury addressed them, 
 and asked them to keep order, and let Mr. Richardson speak. After order was par- 
 tially restored Mr. Richardson began to speak; spoke about 15 minutes without inter- 
 ruption, when the noise and confusion began anew. Questions were put to him go fast, 
 and the confusion became so great, that, he was prevented from speaking further before 
 he was half through. It seemed to be the set purpose of this party to deny him free 
 speech. There was quite a commotion in this crowd, which finally broke up in a row. 
 Learned afterwards that one man had been stabbed and another knocked down. He 
 thought that at this time the town was threatened with a serioug riot, which was pre- 
 vented only by the forbearance of the whites. 
 
 It had been arranged in the programme of the canvass that the Democrats should 
 have one meeting at Santee : hut from advice given by some of the citizens residing 
 on Santee General Manigaulr and others), did not go there. Thought evil would arise 
 from it. That the people there looked upon the Democrats as their worst enemies, and 
 would not have hesitated TO use violence at the instance of their leaders. Was in- 
 formed that .Joseph Bush had a crowd of roughs who were ready to do his bidding,. 
 and were ea:er and ready for a fray. 
 
 (Objected to by contestce as hears. 
 
 On this account did not have the meeting, as previously arranged, 
 
 The next appointment was at Sampit. On the same day the Republicans had a 
 meeting in Georgetown, at the court-house. On the way to Sampit Bridge, met squads 
 of colored men coming to town, nearly all of whom were armed. This had the effect 
 of leading several of his party to apprehend danger on their return, and, fearing an 
 ambush, they were compelled to break up the Sampit meeting and return to town be- 
 fore night. Was not interrupted, however, on the return to town. This feeling of 
 apprehension was particularly felt by the colored Democrats in the party with depo- 
 ent on that occasion. They feared personal violence to themselves from the armed 
 Republicans who bad been seen going to town in the forenoon. 
 
 At the Brook Green poll, on election-day, deponent saw an old colored man, who 
 had voted the Democratic ticket, who. after voting, was severely upbraided in harsh 
 terms by some of the Republicans. This language was such as to have the effect of 
 intimidating other colored men who might have desired to vote the Democratic ticket. 
 
 Cross-examination : 
 
 Could not say that the shooting at the meeting on Waccamaw was at any person or 
 persons. Does not know whether the guns were shotted or not. 
 
 London Green (colored), being duly sworn, testified (Record, p. 125); 
 
 That he lives on North Santee. On the day of election walked down to the Santee 
 poll. Started from home at seven o'clock in the morning. When he got near the poll, 
 Met Paul Allstou with tickets for distribution. These were the red tickets, Republi- 
 can. He asked deponent how he was going to vote. He said "The Jones ticket." 
 Paul said, If you vote Jones's ticket to-day, I will see yon between now and dark, 
 because Jones is a Democrat, and no man shall vote Jones's ticket hereto-day." He. 
 deponent, told the boys with him to come on, and Paul Allston said, "If you or any 
 nan attempt to vote the Jones ticket at this poll to-day I will have you all arrested 
 here to-day." He said he had authority to arrest any man who voted other than the 
 red Republican ticket: that he got his authority from Governor Chamberlain. He 
 then pulled out a paper from his pocket purporting to be his written authority. De- 
 ponent then said to the men with him, " Boys, if voting the Jones ticket here to-da\ 
 will cause a row, and have us all arrested, we must vote the ticket that Paul Allston 
 has, right or wrong." 
 
 Deponent says there were about sixty or seventy men who were at first of his own 
 determination, but who afterward* changed their determination on account of the 
 threat- made by Paul Allston of arresting anv man who voted the Joneg ticket. There 
 was a great gang ot men with Paul Allston in the road, and they would not allow de- 
 ponent and his party to pass by. 
 
 Saw Joseph Hurt at this poll. He appeared to bethechief mover of the crowd that 
 was supporting the red Republican ticket. Saw no guns at the poll that day. Did 
 not remain at the poll more than two hours after voting. 
 
 Deponent says that he and his crowd were so much intimidated by the threats of 
 Paul Allston. backed up by his show of authority, that they felt compelled to vote 
 the red Republican ticket, whieb was not the ticket of his choice.
 
 246 DIGEST OF ELECTION CASES. 
 
 Deponent testifies that Joseph Burt tried to persuade him not to obey the summons 
 issued by R. L. Fraser, notary public, to attend an examination in the present ease 
 of Jno. L. Richardson vs. J. H. Raiuey. 
 
 Thinks there were some 150 or more persons who were influenced by the threats of 
 Paul Allston to vote against their choice, in the same manner as deponent was. He 
 thinks it would have been difficult for any person to vote any other than the red Re- 
 publican ticket at that poll on that day. 
 
 Henry Smith (colored), being duly sworn, testifies (Record, p. 127): 
 
 Resides on Santee. Took an active part in the canvass before the last election iH 
 the support of the Reform or Democratic party ; knows Joseph Bush and other leaders 
 of the Republican party on Santee. These leaders said that any colored man who be- 
 came a Democrat would be spotted ; that, in other words, they would be intimidated, 
 even to the extent of personal violence. Does not think it was safe for a colored man 
 to go about on Santee and advocate his political opinions. The people seemed tearful 
 to take sides with deponent for fear of their bodies. 
 
 On one occasion he was personally attacked, a few days before the election, by about 
 fifteen or eighteen men. As he came on the road these men, in ambush, rose up lie- 
 fore him in such a manner that he feared they would attack him. They upbraided 
 him with supporting the Democratic party; they laid hold on his horse, and one 
 struck his horse. Their manner was very violent. They said they wanted satisfac- 
 tion that day, out of him that day. They said, " We will look after you on election- 
 day, and be careful what you do." They said, "You and others are going to put us 
 back in slavery, and we band together to watch you.'' After many expostulations 
 the crowd let him depart, but said, "You had better look out. If we meet you en 
 the 7th day of November voting for one of those rebels, take care. You are not to 
 cast any vote or come to the poll on election-day." 
 
 Job Mazyck (colored), being duly sworn, testifies that he was a United 
 States marshal at the last election; was the head deputy marshal of his 
 county (Record, p. 132) : 
 
 Heard some of the people say they would lose their rights if the Democrats were 
 elected. Never heard anything about being turned out of church if they voted for the 
 Democrats. Heard threats against W. H. Jones for affiliating with the Democrats. 
 Heard that at Santee there were five men placed on the road to shoot W. H.Jones be- 
 cause he was thought to be a Democrat. Knows one little fellow who was made drunk 
 for the express purpose of shooting Jones, and who afterward said, "Damned if he 
 wouldn't shoot him if he had come along." 
 
 The feeling on Santee was such that it was not safe for a person to go tht-iv r. > .id - 
 vocate the Democratic ticket. 
 
 Deponent sent Ned Lawrence down to Santee as a deputy marshal, who reported u> 
 him that the people down there would not allow any one to distribute Democratic 
 tickets down there, and that there was a man down there who pretended to be a 
 United States marshal, deputized by Governor Chamberlain, and said if he undertook 
 to distribute Democratic tickets there he would have him in jail before night. (Ob- 
 jected to by contestee as hearsay, as to what was told the deputy marshal.) 
 
 This hostility on Sautee was manifested against all parties who voted else than the 
 straight Republican ticket. Burt told deponent in town that it would be unsafe t* 
 carry any other than the straight Republican ticket down to Santee. 
 
 Was in town when Mr. Richardson attempted to address the crowd, -and was pre- 
 vented by a row. Deponent thought the disturbers ought to have been captured and 
 put in jail. Gipson and Harvey Jones were the leaders of this mob. Gipson said, 
 "Let us make a fuss, that they can't speak." The noise was so great that no free 
 speaking could be had or heard. Heard the row, but did not see any person knocked 
 down or cut; was away from the court-house about a square at the time of the great- 
 est fnss. Heard Republican leaders speak in such a way as to terrify the people if 
 they voted against them. Heard Gipson, in a speech, say, " If Ross Johnson would go 
 
 out of town he would have him whipped, for he was a d d Democrat, and was 
 
 frying to g-r the colored people down in the ditch again." This lauguage was very 
 loud and indecent. 
 
 Heard no other threats of violence. Was in town when General Hampton addre-o'tt 
 the people. At this time, saw Gipson in a crowd of colored men threatening all who 
 became Democrats. 
 
 Deponent, on the day of the procession, saw a colored man who wanted to raise a. 
 mob and sti ike a Mr. Brittou, and deponent was forced to use his authority as United 
 States marshal to quiet a row. 
 
 The colored people who were in the procession wore treated vsith abusive language 
 by crowds of women and boys as they passed by, which continued during the time 
 the procession was moving.
 
 RICHARDSON VS. RAINEY. 247 
 
 Heard people say that they were going to stop the procession on that day. 
 
 Deponent and hi's deputies' were kepi ic-vy active on that day in preserving the 
 peace. He had every apprehension of there beiny ; a row. There was a dread over 
 the mind of the people gen-Tally that the success of the Democratic party wonld lead 
 to their disfranchi>tement. 
 
 He know* that W. H. ,1. sit, lil:iek River, Upper Waccaniaw, and 
 
 Santee, l>ee;uise the people there had threatened him because he was thought to be a 
 Democrat. 
 
 Knows of a great many threats, mane j;rain>t W. H Jones throughout the county. 
 
 Heard some in town. Saw a man who had a pistol and was dodging around deponent's 
 
 .-shop lookiugfor Jones. The lieliavior of this man led deponent to believe that he was 
 
 on the lookout for Jones, with the intention of shooting him when hecaineout of the 
 
 This same man had previously made threats against Jones. After this, these 
 
 political nemies of Jones had made an arrangement or conspiracy to shoot into 
 
 deponent's house, where Jones was staying, but the. conspiracy was disclosed and the 
 
 attempt was not made. 
 
 Deponent knows that if the people had been allowed to vote as they pleased that 
 
 Hie Jones ticket and the Democratic ticket wonld have got a much larger number of 
 
 - than they did. Deponent, himself, -elected only two of his deputies; the rest 
 
 of them \\ <-d by t!r. I 'nited Statf.s murshal in Charleston. These were all 
 
 Republicans but one. The election in town went off peaceably. 
 
 The reason of the hostility against W. H. Jones was the belief that he had changed 
 to a Democrat. 
 
 Had heard that a preacher named MurreH had said that the only way to beat Jones 
 miiticaily was to kill him. 
 
 (Record, page 134): 
 
 ::. HAHXWKI.I. is a resident of Georgetown County. Lives at North San tee 
 Took an active part in the late canvass. Took pains to get at thositnation, or the bot- 
 tom facts of the political sentiments of the people generally. He ascertained that 
 there was undoubtedly an ostracism practiced by the colored people against those of 
 their color who leaned toward the Democratic party. This spirit was calculated to 
 ss rhe colored people, and that the eft'ect on the people was intimidation pure 
 and simple ; that they were led to fear blows and personal violence if they left the 
 Republican party. The masses of the people on Santee were under the control of a 
 eaders, who evidently had great influence over them. 
 
 In the campaign, an appointment was made by the Democratic speakers for Santee, 
 but was not had because the gentlemen on Santee had an apprehension that it would 
 lead to a violent row. from which their homes and families would be endangered. 
 This apprehension arose from the fact'of the hostility of the colored people to the Dem- 
 ocratic party ; especially against colored men who would go with the Democrats. This 
 hostility was clearly manifest. Deponent himself had to caution colored people who 
 wore Democrats against uttering sentiments which could be uttered in a free country, 
 but which if spoken out in that neighborhood would subject them to personal violence. 
 There was then open and avowed intimidation on the part of colored men who desired 
 to go with the Democrats. 
 
 This intimidation of the colored people was so evident that the white people of this 
 part of the county feared that it would extend to them in a measure. The impression 
 on the part of the whites was that efforts would be made to repress the free exercise 
 of the elective franchise. 
 
 He thinks many white men went to the Santee poll on election day solely from a 
 tern sense of duty ; that they apprehended danger at the poll to themselves and ap- 
 prehended a general row. 
 
 Was at the Santee poll between 10 and 11 in the morning on election-day. Depo- 
 nent stopped a group of boys who were in the act of voting when deponent got to the 
 poll, ana challenged them. In consequence of this act there was quite a commotion, 
 a gathering around of the colored people, who told deponent he had no right to stop 
 iii\ \.tieis. sheriff LcM'sur >tepued forward aud explained to the crowd before they 
 would be quieted. 
 
 Afterward deponent challenged another group of boys, when a colored man told 
 him he had no right. Deponent replied, when this man was c.illed away. 
 
 It was not safe for a black man to advocate the Democratic ticket at that poll. De- 
 ponent would have advised a colored friend of his not to run such a risk; that it was 
 too great for the occasion to justify. No colored man did advocate the Democratic, 
 ticket at. this poll. 
 
 The demonstration of violence against the Democratic ticket was so great that the 
 white gentlemen present did not even actually engage in advocating the Democratic 
 cause. 
 
 Cross-examination : 
 By ostracism deponent means revilings threats generally is beiug the mode of
 
 248 DIGEST OF ELECTION CASES. 
 
 ostracizing; reviling them for being Democrats, and thereby being enemies to their 
 race and color. Knows a man named Henry Smith, who was a conspicuous object by 
 ostracism by his race. Nothing of this kind was used by the opposite party. Rather 
 inducements and encouragements were afforded those who would join the Reform 
 party. 
 
 Friday Bossard (colored), being duly sworn, testifies (Record, p. 140) : 
 
 Resides in Georgetown County. In the last campaign took part with the Reform 
 movement. Means of intimidation were used against all colored persons who wished 
 to join the Reform movement by the Republican parties. Joseph H. Rainey, at the 
 Georgetown poll, was seen by deponent to take away :i Democratic ticket from a col- 
 ored voter, saying his name was not on it, and was only prevented by the active inter- 
 ference of deponent from tearing it up. 
 
 The doctrine was taught by the Republican leaders that the Democrats would put 
 the colored people back into slavery. 
 
 Does not know of any threats of actual violence. 
 
 The colored voters on deponent's plantation were afraid to vote as they pleased, on 
 account of the teachings of the Radical leaders. Thinks a great many of them would 
 have voted the Democratic ticket had they not been afraid to do so. Deponent's brother 
 had to come to the poll by daybreak to vote, for fear he would be found out and in- 
 jured, on account of having voted the Democratic ticket. 
 
 From his observation on his own plantation, deponent thinks this same influence 
 was extended throughout the entire county, and that it prevented many colored men 
 from voting the Democratic ticket. 
 
 Deponent feels that he himself has been ostracized by the colored Republicans ; that 
 they all turn the cold shoulder to him. 
 
 They treat other colored men who voted for the Democrats in the same way, and 
 worse to such an extent, that in some cases deponent has had to protect some from 
 unkind treatment on the part of the Republicans. 
 
 The efforts of the whites to induce the colored people to join them were of the kind- 
 est character. 
 
 Some of deponent's laborers have left him on account of his bring a Democrat, and 
 thus he has been short of employes when needed. These laborers were the women 
 named Dora Toomer, Hester Brown, Lucretia Mahew, Annie Brown, Jane Gaillard, 
 Susannah White, Btty Smith, Annie Bookie, Catharine Bookie, Rose McGuine, and one 
 man named Frank Bookie, and another man, Isaac Lewis. They left in January last 
 when their contract expired. These women are all married, and their husbands are all 
 working with deponent. These women made their husbands vote the Republican 
 ticket. They said if their husbands voted the Democratic ticket they would see what 
 they, the women, would do ; and by that all the husbands voted the Republican ticket. 
 Thinks he does not know that the men voted in consequence of what the wives told 
 them. This is what led deponent to believe that the men were afraid to vote the 
 Democratic ticket. 
 
 Tom McGuine was the name of the colored man whom J. H. Rainey attempted to- 
 prevent from voting the Democratic ticket. 
 
 Joseph H. Rainey was one of the leaders who said that those who voted the Demo- 
 cratic ticket should be treated as enemies. Rainey was the only one of the leader* 
 whom deponent heard say this; and also Gibson. He remembers no other. He heard 
 Rainey say so on election-day, at the court-house, and at no other time. At the same 
 time he heard Gibson say the same thing, and "preach a sermon off of it," The other 
 time he heard Gibson say so was the day when Hampton was in Georgetown, when he 
 said eo in Georgetown. 
 
 Peter Woodbury (colored), being duly sworn, testified (Record, p. 143) r 
 
 Lived in Georgetown County before and at the last election. Wont around the 
 county canvassing. Advocated the Democratic ticket. 
 
 There was more intimidation in this last election than deponent had ever seen or 
 heard of before. All of the leaders of the Republican party that could utter a word to 
 the people told them not to vote the Democratic ticket ; if they did they would cer- 
 tainly go back into slavery. Deponent believes there were a great many men who 
 would nave voted the Democratic ticket if that had not been so advised by their 
 leaders. Even in joint discussions the Republicans would try to inflame the people. 
 Gibson would endeavor to inflame the people on every occasion. Ou the day when 
 Hampton was in town Gibson frequently endeavored to create a row. 
 
 The effect of the teaching of the Republican leaders, by which the people were intimi 
 dated, was to prevent the colored people fron voting the Democratic ticket. 
 
 It was the general impression throughout the entire country that the colored people- 
 who supported the Democratic party would be turned out of the church. The preach- 
 ers spoke this from the pnlpit.
 
 RICHARDSON VS. RAINEY. 249 
 
 Deponent was among the people a great deal, and waa capable of ascertaining their 
 sentiments. 
 
 The impression among the people was (when the rifle-clubs were disbanded) that 
 the colored man who voted the Democratic ticket would not be protected, while those 
 who voted the Republican ticket would have every protection ; that the Republicans 
 freed them, and that they must do what the Republicans told them to do, and that 
 the leaders were sent here to see that they voted the Republican ticket. Has heard 
 the people say that it' they failed to vote as the leaders said they would lose the pro- 
 tection of the' Republican party. 
 
 On the night that Mr. Richardson spoke and was prevented by the people, led on by 
 Harvey Jones. (Jihson, and others, deponent endeavored to quell the riot, but in vain. 
 
 Heard that Gibson had told the people that the Democrats had tried to drown him. 
 when they had brought him over iron Waccamaw in a boat. Deponent knows to the 
 contrary, because he was in the boat himself. Gibson spread this report about among 
 the excited crowd that night. There was a considerable row that night, brought on 
 by the Radical leaders. Deponent thinks this riot had a considerable effect in intimi- 
 dating the voters who might have desired to join the Democrats. 
 
 Remembers when going to a meeting on Sawpit, he saw a considerable number of 
 colored men coming to town armed. There was a general apprehension in the minds 
 of the colored people who were with deponent that a row was imminent. In conse- 
 quence of this the meeting on Sawpit was broken up prematurely. 
 
 Henry Perry, having beeii called as a witness for the contestant, 
 after being duly sworn, testified as follows, to wit (Record, p. 165) : 
 
 Question. Are you a resident of Darlington County, and were you present at the last 
 general election, 7th of November, 1877? Answer. I am, and was. 
 
 Q. Were you a member of the Democratic club at this place! A. I was. 
 
 Q. State what occurred to you on the day of the election. A. After I had voted on 
 the day of the election I staid away Irom home for several days. 
 
 Q. Why was that ? A. I did not want to have any fuss with my wife in consequence 
 of voting the Democratic ticket. After the speaking of Whittemore and others she got 
 after me about being a Democrat. 
 
 Q. Were the colored Democrats threatened, abused, or interfered with by the Repub- 
 licans ? A. I was not, but have heard others abused. Abraham Brown is the only one 
 I know of; colored Republicans threatened to beat him ; Joe Slaughter was abused by 
 same parties. 
 
 Cross-examined : 
 
 Q. Who abused Joe Slaughter ? A. Joshua Daniels and B. O. Holloway. 
 [ Q. What did they do to him? A. They threw him out of the public-school house. 
 
 Q. Was it at a political meeting of the Republicans I If so, what did he do ? A. It 
 was. He did not speak or offer to speak. They told him to go out, when he refused ; 
 they then put him out. 
 
 Q.* Did you see or hear any one abuse Abraham Brown ? A. I only heard of it from 
 others. He told me of it before the election himself. 
 
 Q. Who do you work for ? A. For Calvin Strother, a colored Democrat. 
 
 Q. What do you do? A. I am a blacksmith. 
 
 Q. How many days did you stay from home ? A. Was away from home three days 
 after the election. 
 
 Q. Where did you stay after the meeting spoken of? A. From the meeting spoken 
 of up to the election I staid at home. 
 
 Q. Did your wife ever beat yon ? A. No, sir. 
 
 Q. Did any one ever beat you? A. No, sir. 
 
 Q. Has any one beat, yeu or interfered with you on account of your vote? A. No, 
 eir. 
 
 Redirect examination: 
 
 Q. Could a timid colored man have voted at this precinct at the last election? A.- 
 He could not without difficulty, in my opinion. I am not afraid of anybody. 
 
 Yanty Byrd, having been called as a witness for the contestant, after 
 being duly sworn, testified as follows (Record, p. 166) : 
 
 Question. Are you a resident of Darlington County, and were you present at the 
 general election of November 7, 1876 ? Answer. I am, and was. 
 
 Q. Were you a member of the Democratic party ? A. I am, and have been since tha 
 war, and expect to remain so. 
 
 Q. Have you ever been threatened, abused, or disturbed on account of being a Dem- 
 ocrat? A. I have been cursed, abused, and threatened to be whipped for being a. 
 Democrat ; they double-teamed me once, and have attempted to whip me several times.
 
 250 DIGEST OF ELECTION CASES. 
 
 Q-. Was violence used or threatened against other Democrats, colored f A. Oh, yes. 
 I heard Abraham Brown's son threaten to whip him coming from the Hampton nieet- 
 Jng at Darlington Courr-House, the Saturday beibiv thv election. 
 
 Q. Were colored men prevented from voting the Democratic ticket by others of their 
 own color f A. Many colored men were prevented from voting the Democratic ticket 
 by their own color; many have told ine so since the election. 
 *Q. Could any but a bold man of your color vote the Democratic ticket ? A. No, air. 
 
 Q. Were not the colored people told by B. F. Whittemore and others to lire the 
 -woods on the day of election, to keep the Democrats at home to tight fire ? A. He told 
 them if the women could not control their husbands they must set tire to the woods fee 
 "keep Democrats at home. 
 
 Q. What sort of a day was the 7th of November 1 A. It was rainy in the morning, 
 ;and the night previous. 
 
 Cross-examination : 
 
 Q. Did you hear Whittemore, or anybody else, make the statement above related I 
 A. I did not. My wife told me she heard him say so. I did not goto any of their meet- 
 ings. 
 
 Calvin Strother, having been called as a witness for the contestant, 
 after being sworn testified as follows (Record, p. 116) : 
 
 Question. Are'you a resident of Darlington County, and were you present at the gen- 
 eral election of 7th November, 1876? Answer. I am, and was. 
 
 Q. Were you a member of the Democratic club? A. I was. 
 
 Q. Were colored Democrats abused, threatened, and disturbed by their own color, on 
 account of their politics ? A. They were as a general thing. A great many colored 
 men have said to me that they did not blame white men for being Democrats, but as to 
 black men they could not well understand it. 
 
 Q. Was not a great pressure brought to bear upon colored voters by men of their 
 own color? A. Yes; I believe if it had not been for this pressure brought to bear by 
 colored voters upon their own color, many of them would have voted the Democratic 
 ticket. I don't know, but I think there was also pressure on the part of Democrats 
 against Republicans. But for the influences spoken of, I think there would have been 
 more Democratic than Republican votes. 
 
 Cross-examination : 
 
 Q. Did you hear threats made by Whittemore and others to burn the woods to keep 
 Democratic laud-owners at home ? A. I had heard of firing the woods. My son, a 
 small boy, was at the meeting and told me that Mr. Whittemore did not say that they 
 must fire the woods, but that he (Whittemore) had heard say that on election-day, 
 when they went off to vote, woods were set on fire, and employers would have to stay 
 at home and fight fire. 
 
 But your committee could not cumber this report with further extracts 
 from the testimony. The evidence of the witnesses, extracts from whose 
 testimony is given above, is corroborated by Ben Allison, p. 147 ; W. R. 
 Beamer, p. 151 ; J. Y. Culpepper, p. 157; Beck, p. 160 ; Rollins, p. 162; 
 Hunter, p. 163; Moore, p. 164; Perry, p. 165; Byrd, p. 166; Keith, p. 166 ; 
 Strother, p. 167; Brown, p. 169; Early, p. 175; Edwards, p. 181, and 
 Tery many others. Among them are Republicans, Democrats, white 
 and colored. Their evidence leaves no doubt in the minds of the com- 
 mittee that the colored Republicans of the first South Carolina district 
 by armed demonstrations, through their religious and social organiza- 
 tions, by threats and actual abuse intimidated hundreds of their own 
 race, forced them to vote against their will, and exercised such undue 
 and illegal influence as to deprive the election in that Congressional dis- 
 trict in November, 1876, of all character as a full, free, and fair election. 
 But the saddest page of the history of the election in South Carolina 
 remains to be written. It is that which chronicles the deliberate, will- 
 ful, illegal, and unconstitutional effort to control the election in that 
 State by the use of the military forces of the United States. 
 
 The history of reconstruction in the South shows that the rotten-bor- 
 ough governments which were born of military power have fallen in 
 pieces so soon as the military power was removed. They had no strength 
 of themselves; they could not exist alone. So it has been, that when-
 
 RICHARDSON VS. RAINEY. 251 
 
 ever an election was to be held in those States, the bayonet was re- 
 sorted to as the most convincing 1 argument with the people. From most 
 of the Southern States from 1868 to 1872, and in others of them even 
 down as late as 1876, and even now in one of them, representatives, not 
 of the people, but of the bayonet, have sat in the Congress of the United 
 States. 
 
 Let us cherish the hope that this humiliating spectacle will be seen 
 no more. Let us believe that it was the natural result of a great war 
 in which the Government must needs trust all to the military arm, and 
 in which took on a fierce military spirit, which clung to it for the time 
 its civil administration. Let us hope that it was never intended to be 
 what in reality it was, a deliberate violation of the Constitution, and a 
 ruthless war upon American institutions. 
 
 By the middle of October. 1876, the fortunes of the Republican leaders 
 in South Carolina had grown desperate. The colored voters were de- 
 serting them by thousands. They were flocking to Democratic meet- 
 ings ; they were riding in Democratic processions: they were joining 
 Democratic clubs. On this point there can be no doubt. 
 
 The conciliatory policy of Governor Hampton and his co-workers in 
 the cause of reform and good government, the dreadful condition of both 
 races brought about by eight years of misrule and plunder, the disgust 
 of many of the most respectable colored men at the broken promises and 
 open corruption of the Republican leaders, the troubles and bad feeling 
 which caused a feeling of general distrust and insecurity these and 
 other similar causes were revolutionizing the minds of vast numbers of 
 the colored race, and they were joining with their white fellow-citizens 
 to stay the rule of the public plunderer, and to save what little was left 
 of the State's imperiled interests. 
 
 And at this time, too, perfect peace and quiet existed in the State. 
 There were no riots, no tumults, no bloodshed. There was, indeed, the 
 usual excitement incident to a hotly contested political campaign, but 
 it was all peaceful. 
 
 It appears by the record that nearly every judge and sheriff in the 
 State testify to this fact both Republicans and Democrats. Look at 
 the evidence (Record, p. 36) : 
 
 His honor Judge A. J. SHAW sworn. 
 
 Question. Where do you rt side? Answer. In the town of Suiuter, S. C. 
 
 Q. Do you hold any official position in the State, and, if so, what? A. I am judge 
 of the third judicial circuit, composed of the counties of Sumter, Clarendon, Will- 
 iamsburg, and Georgetown. 
 
 Q. How long have you been the judge of this circuit! A. Since February, 1875. 
 
 Q. Where were yon during the political canvass of last fall, and at the time of the 
 election on the 7th of November? A. During the month of September I was at the 
 North. I returned to Sumter the first week in October, and have been within the 
 limits of my circuit ever since. On the day of the election I was in the town of 
 Sumter. 
 
 Q. When did the fall and winter terms of your courts begin, and when did they 
 close? A. They commenced at Sumter the second week in October, and ended, at 
 Georgetown about the second week in November. The business of the courts, how- 
 ever, did not occupy all of this time. The litigated cases in the common pleas were 
 aot tried, and there were fewer cases in the general sessions than ever before on the 
 circuit within my knowledge. In Sumter, especially, where the dockets were always 
 heavy, there were only five or six cases. 
 
 Q. Was there during this period any insurrection, domestic violence, or lawlessness 
 in your circuit, which obstructed or hindered the execution of the laws? A. None 
 that I ever knew or heard of. There was no lawlessness or violence of any kind which 
 the ordinary process of the courts could not remedy, and, not withstanding the very 
 ujreat political excitement which prevailed, the laws were maintained and adminis- 
 tered without difficulty.
 
 252 DIGEST OF ELECTION CASES. 
 
 THE STATE OF SOUTH CAROLINA: (Record, p. 199.) 
 
 Personally appeared before me C. P. Townseud, who. after being duly sworn, say* 
 that he is judge of the fourth judicial circuit of the S.tute of South Carolina, and ha* 
 beeii since August. 167'J: that during the last political campaign in South Carolina, 
 extending from July to November 7. 1876, then- was no obstruction to the, execution f 
 the process of the courts throughout his circuit, so far as his knowledge expended, and 
 the law was administered and enforced by the ordinary method provided by the gene- 
 ral assembly in accordance with the State constitution; and that there was no law- 
 lessness or violence at any time during the campaign which could not have been 
 checked and remedied by the process of the courts. 
 
 C. P. TOWNSKNI). 
 
 It will be remembered that Governor Chamberlain's proclamation 
 was issued October 7, charging violence, lawlessness, and insurrection. 
 On that dav the following correspondence took place (Record, pp. 
 556-560) : 
 
 STMTKR, October 7. l,-?r,. 
 
 DEAR SIR : In view of the grave charges made by Governor Chamberlain against 
 the Democratic party arid their mode of conducting the present canvass in this State 
 to Colonel Haskell. charges declaring that the State is an armed camp, and that our 
 meetings are attended by organized armed bodies, may I ask you as a Republican and 
 as the chief justice of the State to say if, in your observation, these charges are borne 
 out by the facts in the case T You saw to-day one of the largest meetings we have held, 
 aud yon can therefore speak from experience and personal observation. I have been 
 through seventeen of the counties of the State, and I have addressed, I am sin 
 least one hundred thousand people, and I can say with perfect truth that I have not 
 seen one single armed hody of men nor has one disturbance occurred at any of the^e 
 vast meetings. My solicitude for the good name of our State will, 1 trust, be a suffi- 
 cient excuse for my calling your attention to this matter. 
 
 Requesting an early answer, I am, very respectfully, your obedient servant. 
 
 WADE HAMPTON. 
 
 To bis Honor F. J. MOSES, 
 
 Chief Justice. 
 
 THE REPLY. 
 
 SfMTKR, S. C., October 7, 1?7C. 
 
 MY DEAR SIR: I am just in receipt of your note, and at once reply to the same. For 
 the last three or four months I have not been in any of the counties but those of Suin- 
 ter and Richland. Within that period I have been present at only two political meet- 
 ings, one held by the Republican party and the other, to-day at this place, by the Dem- 
 ocrat*. Although I was at the latter but a short time, I was for the greater part of 
 the day in the streets, with every opportunity of observing the behavior and demeanor 
 of the large concourse which the occasion had brought together. The collection con- 
 sisted of citizens on foot and horseback; I saw in no instance any exhibition of arms 
 or any behavior inconsistent with the strictest propriety. At the Republican meeting 
 to which I have above referred there was no attempt at interruption. I shall require 
 rery strong evidence to satisfy me that South Carolina is an armed camp. I know of 
 nothing which would lead me so to conclude. For myself 1 do not know of auythiug 
 which would make me doubtful in any part of the State of enjoying the same security 
 which I feel attaches to me nuder niy own roof. I trust the day is far distant when 
 violations of the peace in our own borders will require the interference of any arir 
 more potent than that of the law. 
 Very respectfully, yours, 
 
 F. J. MO- - 
 
 To General WADE HAMPTON. 
 
 2d. The replies of judges A. J. Willard. T. J. Mackey. Thompson H. Cooke, A. J. Shaw, 
 L. C. Northrop, and R. B. Carpenter : 
 
 VIEWS OF JUSTICE W1LLARP. 
 
 In reply to letters from Col. A. C. Haskell, chairman of the Democratic executive- 
 committee, Associate Justice Willard (Republican), of the supreme court, writes: 
 
 COLUMBIA, S. C., October 7, !-: 
 To Col. A. C. HASKELL: 
 
 DEAR SIR: Your not*- of tbi>- date is before me, asking an expression of my views
 
 RICHARDSON VS. RAINEY. 253 
 
 as to the existence of rancor and manifestations of violence in the character of the 
 Democratic canvass of this State. I am unable to throw much light on this subject 
 for two reasons. In the first place, I have been absent from the State for the last three 
 mouths, and only a week has passed since my return to this city. In the second place, 
 my ideas of the character and responsibilities of the judicial office have led mQ at all 
 times to abstain from participating in political action, and accordingly I have little 
 information except that derived from public rumor and the newspapers of what has 
 transpired at political gatheriugs. J can only say that I have witnessed nothing be- 
 yond the circumstances generally characteristic of an excited political canvass. I have 
 seen no violence ; on the contrary, as far as I have had intercourse with gentlemen of 
 your party, I have observed less disposition to excited statement and personal bitter- 
 ness than during any of the previous political campaigns in this State. I sincerely 
 hope that the fears of many That the lawless portion of the community will be per 
 mitted to disturb the peace and injure the good name of the State are groundless. I 
 am satisfied that it is the intention of the leading members of your party to prevent 
 uch a state of things, and I believe they have the ability to do so. 
 Verv respectfully, your obedient servant, 
 
 A. J. WILLARD. 
 
 JUDGE MACKEY'S PROTEST. 
 
 Circuit Judge T. J. Mat-key (Republican) telegraphs as follows: 
 
 CHESTER, S. C., October 7. 
 "To A. C. HAS KELT,, 
 
 Chairman State Democratic Committee, Columbia, S. C. : 
 
 In reply to your inquiry of this date, I would state that peace and order prevail 
 throughout the limits of the sixth judicial circuit, embracing the four counties of York, 
 Chester, Fairtield, and Lancaster. In this circuit no armed organizations obstruct 
 judicial proceedings, and no resistance has been offered to the due execution of legal 
 process. In charging the grand jury of York, on last Monday, I stated that if any 
 citizen, whatever might be his race, color, or party, had been threatened with loss of 
 employment, or put iu terror because of his political opinions, he should make com- 
 plaint before the grand .jury or in open court, and the laws should be put in motion to 
 sustain him in the free and uutrammeled exercise of all his rights of citizenship. The 
 grand jury, consisting of nine white and six colored citizens, reported unanimously on 
 last Wednesday night that no organizations, either armed or otherwise, having for 
 their object the exhibition of force to control the free exercise of the elective franchise, 
 existed in that county, and no complaint charging the existence of such organization 
 had been made to them. The same is true of each and every county in this circuit. 
 The only case of political intimidation that has transpired in this circuit was tried at 
 York on last Thursday, the defendant being one Edward McDonald, colored, charged 
 with threatening the life of one Henry Lowry, also colored, because he had joined a 
 Democratic club, and had declared his purpose to vote the Democratic ticket. The 
 jury consisted of six Republican colored citizens and six white men, one of whom is 
 also an avowed Republican. The prisoner was ably defended by W. B. Williams, esq., 
 himself a candidate ou the Democratic ticket. The jury were charged by me thatthey 
 were the sole judge of the evidence, and that the guilt of the prisoner must be estab- 
 lished beyond a reasonable doubt to warrant a conviction. They rendered a verdict 
 of guilty, and I sentenced the prisoner to three months in jail ; the lowest penalty pre- 
 scribed by law for the offense. I have traversed many counties in the State canvass- 
 ing for Hayes and Wheeler and in favor of Chamberlain for governor during the past- 
 sixty days, and I have nowhere seen an attempt on the part of any portion of the popu- 
 lation to suppress the right of free speech by armed violence. 
 
 I solemnly protest against the proclamation of Governor Chamberlain as absolutely 
 false, in so far as it imputes to the inhabitants within the limits of this circuit any 
 purpose to obstruct the ordinary course of judicial proceedings or to resist in any 
 manner the due execution of the laws for the protection of life, property, or the rights 
 of citizenship ; and I have good and sufficient reason to believe, and do believe, that 
 the said proclamation is equally false in imputing such insurrectionary purpose to the 
 white population in the other circuits of this State. I regard the proclamation as 
 symbolizing fitly a formidable conspiracy against the rights of the people, having for 
 its object the carrying of this State for D. H. Chamberlain and his candidates, which 
 conspiracy is further typified by a board of State canvassers or election returning-board 
 the majority of whose members are candidates on Chamberlain's ticket, and by ninety- 
 six commissioners of election in the several counties, seventy of whom are Chamber- 
 lain's declared partisans, and of which last number some forty are county treasurers 
 jmd auditors or trial-justices, holding lucrative offices by his appointment and remov- 
 able from office at his pleasure, or are known to him as declared candidates for office, 
 indorsing his ticket, who unseat themselves if they make a declaration of the election 
 which seats the candidates opposed to Chamberlain and ticket.
 
 254 DIGEST OF ELECTION CASES. 
 
 The rifle-clubs that he has ordered disbanded are in the main organizations char- 
 tered under the act of the Republican legislature in 1874, and all of them are acting 
 but in the assertion of the right of the people to keep and bear arms, guaranteed 
 against infringement in the second article of the amendments to the Constitution of 
 the United States, and all asert their loyalty to the Union and obedience to its laws> 
 and respect and uphold its flag. 
 
 T. J. MACKEY, Judge. 
 
 THE OPINION OF JUDGE COOKK. 
 
 Judge T. H. Cooke (Republican) writes: 
 
 COLUMBIA, October 1 . 
 
 To Col. A. C. HASKELI , 
 
 Chairman of the Executive Committee of the Democratic Party : 
 
 DEAR SIR: I have just read the proclamation of Governor Chamberlain as to a 
 reign of terror in this State, and his inability to enforce the laws through the ordinary 
 channel, and I must say that the causes alleged for issuing the same do not apply to 
 the eighth circuit, over which I preside, nor do I believe they have any existence as to 
 any other portion of the State, 
 I am, very respectfully, 
 
 THOMPSON H. COOKE, 
 Judge of the Eighth Circuit, State of South Carolina. 
 
 THE LAW SUPREME IN JUDGE SHAW'S CIRCUIT. 
 
 In response to an inquiry of Colonel Haskell, Judge Shaw, of the third circuit, tele- 
 graphs as follows: 
 
 SUMTER, October 9, 1870. 
 To Col. A. C. HASKELL: 
 
 I know of no lawlessness or violence which the law cannot remedy in this circuit. 
 The law is maintained and administered without difflcultv. 
 
 A. J. SHAW, 
 Judge Third Circuit. 
 
 NO RESISTANCE TO LAW IN THE SEVENTH DISTRICT. 
 
 The following telegram was received this afternoon in response to one from the 
 chairman of the Democratic executive committee : 
 
 NEWBERRY, October 9, 1876. 
 
 In reply to your inquiry, I have to say that I am in nowise prepared to express 
 any just opinion upon the peace of the State, except so far as concerns the circuit over 
 which I have the honor to preside. Since my appointment to the bench I have 
 been engrossed by my judicial duties, which have been and are onerous. They have 
 left me without time or inclination to become advise of particular matters outside of 
 my circuit. I am not aware of any resistance to the pro ess of the court in this 
 county, where I have been holding court for a week. Unusual quiet prevails. There 
 aeemsto be a public apprehension that the times are out of joint, and general anxiety- 
 that public order should be preserved. Speaking for this circuit, I can pnly say that 
 while the public mind is of course inflamed by the ardor of the campaign, I have not 
 yet been confronted by any organized or individual resistance to the authority of the 
 courts. The good sense of the people will continue to preserve the public peace. 
 
 L. C. NORTHROP, 
 
 Judge Seventh Circuit. 
 
 Col. A. C. HASKELL, 
 
 Chairman State Democratic Executive Committee : 
 
 DEAR SIR : I have the honor to acknowledge the receipt of your letter of this date, 
 propounding certain questions in reference to the condition of the judicial circuits of 
 the State and certain military organizations. After a month's absence from home I 
 returned about a .week ago, and since that time I have been exclusively occupied with 
 official affairs, holding the regular term of the circuit courts for this county. As 
 to the alleged lawlessness and violence-in other portions of the State, I know nothing. 
 I have seen statements in the newspapers giving different and entirely contradictory 
 accounts of the transactions referred to in the proclamation of Governor Chamberlain*, 
 bnt have not examined the testimony or been in either of the localities. Since my re- 
 turn home I have h. en treated by my acquaintances of both political parties with the 
 usual kindness and respect, and I have seen no exhibition of violence and lawlessness. 
 No resistance to judicial process or authority has been attempted in this circuit, to my
 
 RICHARDSON VS. RAINEY. 255 
 
 knowledge, sice? I have had the honor to be its presiding judge. I am not acquainted 
 with any other than the Richland rifle and the Richland volunteer rifle-clubs. I do 
 not know of my own knowledge, nor has any complaint been made to me. of any acts 
 of violence, open or secret, having been committed by these companies. My acquaint- 
 ance with the members of those organizations is quite general, and, from my knowl- 
 edge of the personal character of the gentlemen composing them, I should think no 
 danger to the peace and good order of society could be rationally apprehended from 
 that source. Withdrawn from partisan politics, as a citizen I feel a deep interest in the 
 welfare of the State, and I hope those of both parties having charge of the canvass 
 will exercise such prudence, justice, and fairness as, will insure a free, fair, and full 
 expression of the popular will. 
 
 I have the honor to be. respectfully, your obedient servant, 
 
 R. B. CARPENTER. 
 
 See also testimony of Governor Hampton, report, p. 249, Tiudall, p. 
 468, and numerous others. Here, then, is the solemn and deliberate tes- 
 timony of the supreme and circuit judges of the State, of sheriff's, and of 
 many other citizens, both wh'ite and colored, showing conclusively that 
 Governor Chamberlain's proclamation, upon which the action of the Fed- 
 eral authorities in sending troops into the State was based, was willfully, 
 deliberately, and wickedly false a libel and a slander upon the people 
 ivhose interests he was sworn to guard. 
 
 Notwithstanding this profound peace, it was determined by the Repub- 
 lican leaders to overawe the State with the presence of troops. They 
 could be used to discourage the Democrats, to encourage the Republi- 
 cans, and to deter colored men from voting with the Democrats. With 
 the colored race of the South no argument is so powerful as the argu- 
 ment presented in the uniform and bayonets of Federal troops. They 
 believe that to the Union troops they owe their freedom. They have 
 been carefully tutored that they cannot oppose the will of the Govern- 
 ment. They are not versed in the law and Constitution sufficiently to 
 know that in popular elections the Government has no right, no will, and 
 no voice. Ignorant and credulous, they were ready to believe that the 
 coining of the troops was for the purpose of compelling them to vote the 
 Republican ticket, and to arrest and punish them if they failed to do so. 
 
 All this their cunning and unscrupulous leaders well knew. Hence 
 
 they determined, as the last resort, to cause troops to be sent into the 
 
 State. On the 7th day of October, Governor Chamberlain, himself a 
 
 candidate for re-election, issued the following proclamation. (Report, 
 
 .p. U : 
 
 PROCLAMATION. 
 
 STATE OF SOUTH CAROLINA, "^T^ 
 Executive Chamber. J 
 
 "Whereas it has been made known to mo, by written and sworn evidence, that there 
 exist such unlawful obstructions, combinations, and assemblages of persons in the 
 counties of Aiken and Barnwell, that it has become impracticable, in my judgment, as 
 governor of the State, to enforce by the ordinary course of judicial proceeding the laws 
 f the State within said counties; by reason whereof it has become necessary, in my 
 judgment, as governor, to call forth and employ the military force of the State to en- 
 for' the faithful execution of the laws; 
 
 And whereas it has been made known to me as governor that certain organizations 
 *nd combinitious of men exist in all the counties of the State, commonly known as 
 "rifle-clubs"; 
 
 And wheieas such organizations and combinations of men are illegal and strictly 
 forbidden by the laws of this State : 
 
 And whereas such orgauziatiens and combinations of men are en gaged in promoting 
 illegal objects, and in committing open acts of lawlessness and violence: 
 
 Now, therefore, I, Daniel H. Chamberlain, governor of said State, do issue this my 
 proclamation as required by the thirteenth section of chapter 132 of the general stat- 
 ates of the State, commanding the said unlawful combinations and assemblages of 
 persons in the counties of Aiken and Barnwell to disperse and retire peaceably to their 
 homes witb-in three days from the date of this proclamation, and henceforth to abstain
 
 256 DIGEST OF ELECTION CASES. 
 
 from all unlawful interference with the rights of citizens, and from all violations of 
 the public pea< <. 
 
 And I do further, by this proclamation, forbid the existence of all said organizations 
 or combinations of men commonly known as "rifle-clubs," and all other organizations 
 or combinations of men or formations not forming a part of the organized militia of 
 the State, which are armed with tire-arms or other weapons of war, or which engage 
 or are formed for the purpose of engaging in drilling, exercising the manual of arms 
 or military maneuvers, or which appear or are formed for the purpose of appearing 
 under arms or under the command of officers bearing the titles or assuming the func- 
 tions of ordinary military officers, or in any other manner acting or proposing to act 
 as organized and armed bodies of men ; and I do command all such organizations, com- 
 binations, formations, or bodies of men forthwith to disband and cease to exist in any 
 place or under any circumstances in the State. 
 
 And I do further declare and make known by this proclamation to all the people of 
 the State that, in case this proclamation shall be disregarded for the space of three 
 days from the date thereof, I shall proceed to put into active use all the powers with 
 which as governor I am invested by the constitution and laws of the State for the en- 
 forcement of the laws and the protection of the rights of the citizens, and particularly 
 the powers conferred on me by chapter cxxxii of the general statutes of the State, as 
 well as by the Constitution of the United States. 
 
 In witness whereof I have hereunto set my hand and caused the great seal of the 
 State to be affixed, at Columbia, this 7th day of October, A. D. 1876, and in the 101st 
 year of American Independence. 
 
 [L. 8.] D. H. CHAMBERLAIN. 
 
 By the governor. 
 H. E. HAYNE, 
 
 Secretary of State. 
 
 The utter falsehood of this proclamation has already been shown. It 
 was indeed but the reckless assertion of a reckless leader of desperate 
 men, who was determine to try that "elixir of life" to the carpet-bag 
 government the presence of United States troops as the last remedy 
 to perpetuate its wretched existence in that unfortunate State. 
 
 It was, to the people of South Carolina, the formal announcement 
 that their State was again to be carried and their officers and legislators 
 elected and Presidential electors chosen by means of military interfer- 
 ence and intimidation. 
 
 The call was most promptly responded to. Your committee would 
 fain hope that in issuing the proclamation given below, the President of 
 the United States was but honestly acting as he thought best for the pub- 
 lic weal. But the date of the proclamation, the hasty and over-zealous 
 action of the then Secretary of War, the hurried movement of the troops, 
 the anticipation that the proclamation would be unheeded, the presump- . 
 tion against all legal teaching, that a crime would be committed, leave no 
 doubt in the mind of your committee that the authorities of the Federal 
 administration lent themselves and all the appliances and agencies of 
 the Government to the conspiracy to carry the election in "South Car- 
 olina by the bayonet. 
 
 On the 16th day of October, 1876, General Ruger, commanding at 
 Charleston, telegraphed President Grant that all was quiet in the State, 
 and added, "If I need more troops I will send you a dispatch telling you 
 I need them." Yet, on the very next day, President Grant issued the 
 following proclamation : 
 
 Whereas it has been satisfactorily shown to me that insurrection aud domestic vio- 
 lence exist in several counties of the State of South Carolina, and that certain combina- 
 tions of men against law exist in many counties of said State, known as rifle-clubs, 
 who ride np and down by day and night, in arms, murdering some peaceable citizens 
 and intimidating others; which combination, though forbidden by the laws of the 
 State, cannot be controlled or suppressed by the ordinary course of justice; and 
 whereas it is provided in the Constitution of the United States that the United States 
 shall protect every State in this Union, on the application of the legislature, or of the 
 executive when the legislature cannot be convened, against domestic violence ; and 
 whereas, by laws in pursuance of the above, it is provided in the laws of the United
 
 RICHARDSON VS. RAINEY. 257 
 
 States that in all cases of insurrection in any Staff or obstruction to tin- la\vs thereof. 
 it shall be lawful for the President of the I'nitetl States, on application of the legisla- 
 ture of such State, or of the executive when the legislature cannot lie convened, to 
 ea.l for the militia of any other State or States, or to employ such part of the land or 
 navai forces as shall he judged necessary for t he purpose of suppressing such insurrec- 
 tion or causing the laws to lie duly executed : and whereas the legislature of *iid 
 State is not now in ^ess-ion, and cannot be convened in time to meet the present 
 emergency, and the executive of said State, under section 4 of article 4 of the Consti- 
 tution, and of the laws passed in pursuance thereof, has therefor.- imide an application 
 to me in the premises for such part of the military forces of the United States as may 
 he necessary and adequate TO protect said State and the citizt-ns thereof against 
 domestic violence, and to enforce the due execution ( .f the. laws: and win reas it is 
 required that whenever it may he necessary, in the .judgment of the President, to use 
 the military force tor the purpose aforesaid, he shall forthwith l>y proclamation com- 
 mand such ii,Miri:cnts to disperse and retire peaceably to t heir respective homes within 
 a limited time: 
 
 >"o\v. therefore. I, Ulysses S. Grant, President of the United States, do hereby make 
 proclamation and command all persons engaged in such unlawful and insurrectionary 
 proceeding* to di-perse and retire peaceably to their respective abodes within three 
 days from this date, and hereafter abandon said combinations and submit themselves 
 to the laws and constituted authorities of said State: and I invoke the aid and co- 
 operation of all good citi/ens thereof to uphold the laws and preserve the public peace. 
 
 In witness wh.-ieof I ha\e hereunto set my hand and caused the seal of the United 
 State-, to i'e aliixed. 
 
 Done at the city of Washington this 17th day of October, lr!76, and of the Independ- 
 ence of the United States one hundred a:.d one years. 
 
 U. S. GRANT. 
 
 By the President. 
 
 JOHN* L. CAI>WAI.AI>KR, 
 
 Actintj Secretary of Stale. 
 
 The following order was issued this evening, in pursuance of the action taken at the 
 Cabinet imeting to day, for the protection of the public peace hi South Carolina: 
 
 WAR DEPARTMENT, 
 Washington City, October 17, 1876. 
 General W. T. SHEIIMAN. 
 
 dnnmandiny L'nUed Statt# Army: 
 
 SIK: In view of the existing condition of atfairs in South Carolina, there is a possi- 
 bility that the proclamation of the President of this date may lie disregarded. To 
 provide against such a contingency, yon will immediately order all the available force 
 in the Military Division of the Atlantic to report to General Ruger, commanding at 
 Columbia, S. C., and instruct that officer to station his troops in such localities that 
 they may be most speedily ami effectually used in case of any resistance to the au- 
 thority of the United States. It is hoped that a collision may thus" be avoided, but 
 yon will instruct General Kuger to let it be known that it is the fixed purpose of the 
 government to carry out the spirit of the proclamation, and to sustain it by the mili- 
 tary force of tli.- General Government, supplemented, if necessary, by the militia of 
 the various S'at.-s. 
 
 Vcrv respectfully, your obedient servant, 
 
 J. D. CAMERON, 
 
 Secretary of IVur. 
 
 Your committee have thought proper to insert in this report the order 
 of Mr. Secretary of War Cameron, as that official in his zeal to carry 
 out the programme of electioneering by the bayonet, wrote his celebrated 
 order in .such a style as makes manifest the real designs of the Federal 
 administration. 
 
 His order bears the date 17th of October, issued simultaneously with 
 that ol' the President. He thinks it possible the President's proclama- 
 tion may be disregarded. He presumes disobedience," lawlessn 
 resistance. Such are not the doctrine of the law. He hurries forward 
 all "available troops." Yes. there was need of haste, for only twenty 
 days remained until the election was to be held. The bayonet elixir of 
 life to the u carpet-bag" government in South Carolina must be speedily 
 H. Mis. 58 17
 
 258 DIGEST OF ELECTION CASES. 
 
 administered or it would be too late to save it. Therefore, without 
 waiting to see the effect of the President's proclamation, at great public 
 expense and trouble, and in the face of General Ruger's dispatch, dated 
 only the day before, that he needed no more troops, all the troops in the 
 military district are hurried to South Carolina. The Secretary instructs 
 General Ruger to station these troops at the most available points for use 
 in case of resistance and collision. This order is carried out in true military 
 style by scatteriugthe troops in insignificant squads all over the State.thus 
 destroying their strength and rendering them in case of real collision 
 an easy prey to an enemy inferior in strength, who could destroy them 
 in detail. This force too was, if need be, to be supplemented by " the 
 militia." What militia 1 ? In South Carolina the militia was composed 
 of but one race. The colored voters constituted " the militia." They 
 alone were organized and armed with the State arms. The whites were 
 unarmed. There was in this threat* to supplement the Army with the 
 militia, a most diabolical threat of setting one race in arms against the 
 other race, and that, too, in time of great political excitement. In the 
 first Congressional district, of South Carolina the troops were stationed 
 at eleven places, and all of these happened to be polling places. 
 
 Your committee undertakes to say that a mere causeless invasion of 
 the rights of the people of a State, a more flagrant disregard of consti- 
 tutional obligation, more thorough contempt for every principle of free 
 government was never manifested in American history, than the send- 
 ing of troops into South Carolina in October, 1876, by the Federal author- 
 ities. It was without shadow or pretense of justification or excuse. 
 
 It is, too, a most singular fact, in view of the pretense under which 
 the troops were sent, that so soon as the election was over they were 
 withdrawn from the interior and concentrated at Columbia, the capital 
 of the State, to guard the count and the officers making it; and there 
 they remained in the state house until the administration which sent 
 them passed away, and a wise constitutional policy withdrew them from 
 the State. 
 
 The effect of the coming of the troops into the State was instanta- 
 neous and marked. True, the soldiers themselves did not interfere, but 
 their very presence was enough. The colored voters were told that 
 they were there to coerce them to vote the Republican ticket; nay, to ar- 
 rest and cause them to be punished if they did not do so. All this is 
 set forth so clearly in the evidence that the committee deem it unneces- 
 sary to say more on this point than to call attention to the subjoined 
 extracts from the testimony. 
 
 Wade Hampton, governor of South Carolina, being called and duly 
 sworn, deposes and says (Record, p. 243) : 
 
 Question. State what was the spirit of the campaign in 1876, as conducted by the 
 Democrats and Republicans. Answer. On the part of the Democrats the effort was 
 to make the campaign thoroughly conservative and conciliatory. I was in all the coun- 
 ties of the State, and saw no intimidation by Democratic whites or negroes against Re- 
 publicans, white or colored. The only evidence of disorder I saw was in the ti rst Con- 
 gressional district, where the colored Republican voters endeavored to intimidate those 
 of their own color who wanted to vote for the Democrats.. This was notably the case 
 in Georgetown, where they used every effort to drive the colored voters from joining 
 the Democrats, and I heard threats of violence used by them. I was satisfied but for 
 that pressure a greater number of the colored people would vote with the Democrats. 
 I believe that this spirit of race proscription was exercised all over the State, and ex- 
 ercised a very powerful and detrimental influence against the Democratic party. 
 All the addresses of the Democratic speakers in the first Congressional district were 
 conciliatory. Mr. Richardson accompanied me and took the extreme course of con- 
 ciliation. 
 
 Q. Did there exist any necessity for the proclamations of President Grant and Gov-
 
 RICHARDSON VS. RAINLY. 259 
 
 ernor Chamberlain disbanding the ritle-clubs .' A. In my judgment there was no 
 necessity. The judges nil slated that there was no resistance to legal process; in my 
 canvass I saw no evidence of interference with or resistance to law. The whole cflbrt 
 tbat I made during the canvass \vas to ;issnre the, people ot' the absolute necessity of 
 preserving peace and abstinence from violence. As soon as the proclamation appeared. 
 I advised all the clubs to disband, and at no single meeting attended by me in the 
 State was there an armed organization of men. 
 
 Q. What was the effect of these proclamations and of the introduction of United States 
 troops upon the colored voters and upon the flee', ion? A. I think that the presence 
 of the troops produced ;i great change among the colored voters, from the fact tbat 
 they were tola that the troops were placed here for the purpose, of making them vote 
 the Republican ticket. Thai the troops not being placed where they could have 
 given pro! h '()!):( 1 i)'.ii > -r ifs exercised a:: influence injurious to the Dem- 
 
 ocratic cause. I had applications from several places asking tbat troops should bo 
 placed to protect colored Democrats. I did apply to G ueral linger; troops were not 
 sent, on. the ground that be had not troops enough to send to the particular pi 
 Troops were sent generally in larger numbers in the upper counties where the whites 
 were in majority. In the low country where t!'.e Republicans were in majority fewer 
 troops were sent. 
 
 Q. You state yon saw no intimidation by Democn. or negroes against 
 
 Republicans, whiteor colored. Were there thrcatsmaii. by Democratic whites, within 
 your knowledge, tha- they would nor give employment or rent 1 heir lands to colored 
 persons who should vote the Repubiica:i ticket? A. I heard no threats of this kind, 
 of my own knowledge. [ did see that some of tbc Democratic clubs did say they 
 would not employ those who voted against them. That p -licy has not met my ap- 
 probation. All tin; enunciations I have made called on our people not to have any 
 proscription. 
 
 Q. Please state in what way the colored Republican voters, in the first Congressional 
 district, endeavored to intimidate those of their own color who wanted to vote for the 
 Democrats. A. Most of the information I have came from the colored Democrats 
 themselves, who said that threats were made against them by people of their own 
 color. A: the meetings they frequently jeered the colored Democrats; and at George- 
 town they followed -sion through the town, using violent language. The 
 promin"Mt colored Republicans and woiue-i tried to keep the colored Democrats from 
 the meeting, and there I saw the only a'jt of violence; r.'u-y threw a brick at my 
 carriage : nothing but the coolness of the Democrats prevented a riot. 
 
 Q. You state that the negroes were told that the troops were placed here for the pur- 
 pose of making them vote the Republican ticket. State whether th' se who told them 
 so had authority to tell them so ? A. I don't suppose they were told so by authority. 
 They were led to he.lie.ve this by party managers. 
 
 <.}, Were the colored Democrats limited to any particular part of the State T A. No; 
 colored Democrats voted in every county of the State. 
 
 Q. Was the proportion of colored Democrats to colored Republicans greater in some 
 pans of the state tb^n others? A. Yes; the proportion was greater in some parts of 
 the State than in others. In Abbeville, Barnwell, Ne wherry, the proportion was 
 greater than in Colleton, Beaufort, and Georgetown. 
 
 Q. Were there no troops placed in Barnwell, Abbey ville, and Ne w berry ? A. Yes; 
 there were tr,>ops there. 
 
 E. W. Moise, being called and sworn, deposes and says (Record, p. 241) : 
 
 Question. Were you in the State of South Carolina during the election held on 7th 
 November. l~7;i ' Answer. I was, and canvassed the State during the campaign. 
 
 Q. What was the policy of the campaign on the part of the Democrats? A. To 
 make as much exhibition of power as they could, but to avoid any acts of actual 
 violence. 
 
 Q. Was there (hiring the campaign any resistance to civil process, or any interrup- 
 tion of the due and legal execution of the laws? A. I know of none such, and saw 
 none such. ' 
 
 Q. Do you know anything of the introduction of the United States troops in the 
 Stale, and the effect thereof? A. United States troops were introduced into the State 
 just previous to the election, and I regard the effect as enabling the colored Republi- 
 cans to intimidate the colored persons who bad previously proposed to vote the Demo- 
 cratic ticket. 
 
 Q. State any instance you know of this. A. I have been informed by my tenants, 
 being colored Republicans, who had proposed to vote the Democratic State ticket and 
 Cor Mr. Hayes in this election, that they were afraid to do so because of the threats 
 used toward them by other colored Republicans to the effect that they would either 
 be placed in slavery or lose some rights which they then enjoyed if the Democrats 
 went into power, and that the troops had been sent here for the purpose of requiring
 
 260 DIGEST OF ELECTION CASES. 
 
 the colored people to adhere to their party, and for preventing the white people from 
 persuading them or inducing them to vote tin- Democratic- State ticket. 
 
 Q. Can you give any names ? A. I can. The foreman on my plantation in Claren- 
 don County, named Ali'red Lemon, informed me in the presence of General Wade Hamp- 
 ton and others at Manning, in said county, that he proposed to vote for the State Dem- 
 ocratic ticket, and that the men on the plantation proposed to do the same. He after- 
 ward informed me that he had not done so for the reasons above stated. 
 
 Q. Do you know of any other instances of intimidation toward the colored people 
 during the late election ? A. I do. I was present at the mass-meeting at Sumter, 
 addressed by Mr. Chamberlain, Mr. < aiuoza, William E. Johnson, senator from Sumter, 
 and others.' i heard Mr. Cardoza .say that the colored man who would vote for the 
 Democrats in this election would deserve to lose his freedom, and I heard William E. 
 Johnson say that the Democrats would treat them as Ehui was treated in the Bible; 
 that Ehul was a portly man like the treasurer; that a petition was presented to him, 
 and that when h asked to read the petition the petitioner advanced to him, and when 
 lie got close plunged a kuife in his bowels; and so, he ^aid, will the Democrats. They 
 otter you fair promise now, but if you ever let them get control they will lay something 
 on your l>acks. This was heard by from two or three thousand colored people. I also 
 know that a man named Albert Howell, in the town of Sumter, a colored hackman, was 
 struck by a colored woman with an umbrella, simply because he spoke to her, alleging 
 that she did not peimit any colored Democrat to speak to her. 
 
 Q. On the day of 7th November, did you see any t roops of the United States near any 
 of the polls ? A. Yes. At Sumter I saw two officers and a detachment of United States 
 troops under arms, for three or four days before and three or four days after the elec- 
 tion andon the day of election. Their camp was not over four hundred yards from the 
 polling-place. Suiuter is in the first v ongressional district. 
 
 James Conner (Record, p. 243 ): 
 
 Q. What do you know of the introduction of United States troops into this State 
 during the canvass, and the effect upon the voters, and especially the colored voters? 
 A. I know nothing of the introduction of the troops; I only know that they came, 
 and that their coming was accepted by the negroes of the low country as an indication 
 that the government intended that the negroes should vote the Republican ticket It 
 was generally accepted that the object of their coming was to overawe the Democrats 
 and to prohibit the rifle-clubs, or rather to disband them. In brief, it was to depress 
 and neutralize the Democrats and embolden and strengthen the Republican leaders, 
 and it succeeded and accomplished that work effectually. 
 
 Q. What effect had the proclamations of President Grant and Governor Chamberlain 
 disbanding the rifle clubs f A. I don't think the proclamations had any effect at all; 
 it was the Federal troops enforcing the proclamations which gave life and efficacy to 
 them. I don't think one negro iu a hundred could either read or understand the proc- 
 lamations, but they could all see the United States troops, and understand what they 
 we'-e ther<- for. 
 
 Q. What do you know of intimidation by colored voters of other colored voters 
 who wanted to vote the Democratic ticket f A. I know nothing, except iu Charleston 
 County, and there the intimidation of colored voters, Democratic voters, by colored 
 Republicans, was general and very effective. Large numbers who had pledged them- 
 selves recanted and said the pressure was too heavy. 
 
 Q. Do you know of any actual or threatened violation of the public peace in the 
 first Congressional district, which the civil authorities could not easily and readily 
 suppress f A. None. 
 
 Q. Under whose coutrol has the State government legislative, judicial, and execu- 
 tive been since 16oX f A. For the past eight years the 
 
 F. W. McMaster, being called and sworu, deposes and says (Record, 
 p. 243) : 
 
 Question. State what you know of the spirit of the late campaign in 187o', as con- 
 ducted by the Democrats and Republicans. Answer. I was actively engaged as can- 
 vasser in four counties. In every one extraordinary efforts were made for the concili- 
 ation of the negroes. I kuow of nothing on the part ot the whites against the negroes. 
 I have seen some intimidation attempted to be exercised by Radical negroes against 
 Democratic negroes, and have heard of many instances, especially on the part ol negro 
 women against, colored Democrats. In Columbia, on 3d November, when Hamp'on 
 addressed the people here, I rode at the head of the procession. There was some 
 Democratic negroes in the procession. There was bands of negro women on the pave- 
 ments, jibing, ridiculing, and abusing them. The intimidation ofeuloied Democrats 
 by colored Republicans was, in my opinion, general and at times serious. I have no 
 doubt it had great effect in preventing many colored people from voting with the 
 Democrats. 1 was struck with this at three public gatherings, where I considered it
 
 RICHARDSON VS. RAINEY. 261 
 
 required a good deal of heroism for a negro to declare himself a Democrat. Two of 
 these meetings were Democratic meetings: the other a Republican meeting. 
 
 Q Did there exist any necessity for the proclamation of President Grant and Gov- 
 ernor Chamberlain disbanding the rille-clnbs? A. There was not the slighest neces- 
 sity for such proclamation. The Stale was in profound peace. There was no resist- 
 ance to l.-gal process. The course of justice was not interrupted, so far as I know. I 
 heard of commotions on the Combahee rice plantations, confined to the negroes. 
 
 Q. What was the effect of the proclamations of President Grant and Governor 
 Chamberlain disbanding the ritle-clubs and of the presence of United States troops 
 introduced in the Stale upon the colored voters? A. It infused into the colored mind 
 that the time for the forty acres and the mule had come. It paralyzed the negro who 
 was wil!ii]'; to vote with us and emboldened the Republican negroes. They acted 
 with the idea that they were required by General Grant to vote the Republican ticket. 
 
 William Wallace, being 1 sworn, says (Record, p. 247): 
 
 Question. State what was the spirit in which the campaign in 1376" was conducted 
 on the put of the Democrats and Republicans. Answer. On the part of the Demo- 
 crats great activity was used. The State had been ruined by the Republican Govern- 
 ment, and they intended to use every lawful and proper means to redeem the State. 
 The campaign was conducted peacefully and in a conciliatory manner. It was the 
 first time that our white people had gone regularly into a canvass with the negroes. 
 They wanted to give the negro the opportunity of hearing the truth, which they had 
 not heard before in any political canvass, and the effect was tremendous. Had things 
 been left to the normal and legitimate inlluences. I believe the State would have goiie 
 Democratic by ;">('. (Mil.) majority. 
 
 Q. What was the effect of the proclamations of President Grant and Governor 
 Chamberlain disbanding the rifle-clubs, and of the presence of United States troops 
 introduced into the State on the colored voters? A. It had the effect of taking away 
 that confidence v\ Inch the negroes were beginning to have in the native white people 
 of the State again. It made them feel that they were powerless to protect them 
 against th >s ,,f their own race- who were still under the control of their Radical 
 leaders. 
 
 Leroy F. Youmans (Record, p. 250): 
 
 . Q. Was there anything in the condition of the country justifying the proclamation 
 of President Grant and Governor Chamberlain, and the introduction of United States 
 troops? A. In my judgment them was not. T.ie State was in profound quiet, legal 
 process unobstructed, and tbe administration of the laws uninterrupted. In fact, up 
 to a very short time befoiv the nomination of Hampton for governor by the Dem- 
 ocrats, a large fraction of that party was opposed to any nomination in opposition to 
 Mr. Chamberlain's re-election, the most influential Democratic newspaper in the State 
 ably and zealously advocating that course. 
 
 Q. What was the effect of the proclamation and the introduction of the troops upon 
 the election? A. Tu my judgment it widened whatever breach may have existed be- 
 tween the two races, ami impeded the tendency to union in political action which had 
 been rapidly gaining ground, and very largely increased the Republican vote, colored, 
 and diminished the D -mocratic colored vote which otherwise would have been given. 
 
 Q. Has tlie registration required by tbe constitution ever been carried into effect; 
 and. if not, why not? A. It lias not. for the reason that the Republican party, which 
 for eight years has had entire control of all the departments of the State government, 
 and also of the local judiciary and local financial matters in the counties, has chosen 
 to disobey the positive mandate of the constitution. 
 
 Cross-examined by Mr. Caveuder, for coutestee: 
 
 Q. Please state in what way the introduction of troops widened the breach between 
 the two races. A. The published utterances of the governor immediately preceding 
 the proclamations, and the introduction of more troops, threatened material injury 
 to the ^tate, in terms, and naturally induced the belief that the subsequent acts of the 
 governor an 1 President w.mld be dictated with the desire to advance the interests of 
 colored Republicans at the expense of white Democrats. 
 
 Q. Please state what utterances of the governor you allude to. A. Especial allu- 
 sion is made to his Chamberlain's, letter to Col. A. C. H iske.ll, chairman of the execu- 
 tive committee of the State Democratic committee, published in the papers and 
 widely circulated as a ca:npaig i document. 
 
 Q. What was the general tenor of that letter.' A. Bitterdeuunciation of the white 
 Democrats and t Invars of injury to th", material interests of th j State constituted its 
 tenor in this regard. The letter itself would furnish the best answer to the question; 
 it. was published early in October, 1-M. 
 
 Q. Do you think that bitter denunciation of white. Democrats and threats of ma- 
 terial inj'iry to the State very largely increased the colored Republican vote and de-
 
 262 DIGEST OF ELECTION CASES 
 
 creased tho Democratic colored vote .' A. I Think they did, followed by the proclama- 
 tions, and the introductiou of the troops foreshadowed therein. 
 
 William E. James, having- been called as a witness for the contestant, 
 and duly sworn, testified as follows, to wit (Record, p. 7l'G): 
 
 Question. Are you a resident of Darlington County, and were you present at the 
 last general election? Answer. I am and was. 
 
 Q. What is your occupation ? A. Planter. 
 
 Q. But for the interference in that election by the State and Federal executives by 
 proclamations and by the introduction of troops into the State, which party, in your 
 judgment, would have carried the county. 
 
 (Objected to as calling for an expression of opinion.) 
 
 A. The Democratic party. This was conceded by prominent members of the Repub- 
 lican party. 
 
 B. W. Edwards (Record, p. COS): 
 
 Q. Was the introduction of United States troops regarded by both parties as a politi- 
 cal measure? 
 
 (Objected to as not being in rebuttal and as being matter of opinion and cumula- 
 tive. ) 
 
 A. It was so regarded by the Democratic party, and I believe it was by the Republi- 
 can. The Democrats so regarded it, because it was entirely unnecessary for any other 
 purpose. When Governor Chamberlain issued his proclamation to the clubs which he 
 styled rifle-clubs to disband, they did immediately break up their organizations and 
 discontinued anything that might be construed military maneuvering, so that there 
 was no pretext for sending United. States troops into Darlington County. 
 
 Q. What effect had their coming upon the election ? A. It increased the Republican 
 vote and decreased the Democratic vote. It was commonly said (objected to as to 
 what the witness would say as hearsay) that the Republicans told them, the colored 
 voters, that the soldiers were sent there to see that they voted the Republican ticket. 
 and the eft'ect upon their minds and actions verified the statement. 
 
 Again at pages 704 and 705 : 
 
 Q. How do you say that the Democratic vote was decreased by the coming of the 
 troops, when you know that they polled their full strength in this county, and when 
 you have good reason io know that more colored men voted this ticker at the point 
 where the most troops were and the longest stationed, and where you say yourself that 
 more colored men voted the ticket than at any previous election, and where yon don't 
 know what the Republican and Democrat vote of the county was .' A. When I say 
 the Democratic party voted their full strength, I meant the white people, but we ought 
 to have carried with us the colored people, and had the prospect of carrying ;>- much 
 larger number prior to the introduction of troops than we did carry. After it- was 
 known that troops were to be introduced, I could observe the chilling - li'/. i> upon the 
 Democratic campaign and the strength it gave the Republican party, the leaders of 
 which used it effectually against us, and thereby diminished the number ot Democratic 
 colored votes and increased the number of Republican votes. 
 
 Q. What did you hear these leaders say about the troops? A. I didn't hear them 
 say very much, as they didn't come to our meetings or favor our going to theirs. 
 
 A. S. White, a Republican, having been called as a witness for the 
 contestant, after being duly sworn, testified as follows, to wit (Record, 
 p. 710): 
 
 Question. Up to a very short time before the 7th of November last, was there any 
 unusual disorder or disturbances of the peace in Darlington County? 
 
 (Objected to as calling for opinion and as being cumulative and not in rebuttal.) 
 
 Answer. I know of none. 
 
 Q. In your opinion, was the introduction of United States troops in this portion of 
 the State pending the late election called for? 
 
 (Objected to for the same reasons as the foregoing question.) 
 
 A. No. sir. 
 
 Q. What was the eft'ect of the introductiou of the troops upon the election ? 
 
 (Objected to for 1he same reasons as the foregoing question.) 
 
 A. It tended to discourage the Democrats ,-unl encourage the Republicans. 
 
 Q. Was not their coining re^irdi-d as a political measure? 
 
 (Objected to on the same ground as the previous question.) 
 
 A. It was generally s-> considered. 
 
 Q. Did the Democrat ic organizations of this county, in your judgment, tend to inter- 
 fere with the freedom of the election .'
 
 RICHARDSON VS. RAINEY. 263 
 
 (Objected to as ;i matter of opinion.) 
 
 A. 1 think not. 
 
 Q. Were there any indications that the Republican voters were deterred, through 
 fear, from voting? A. I saw none. 
 
 Q. Were they not, in your judgment, frilly alive to their advantages of numbers, the 
 prestige of previous victories, the moral and physical support of the State and Federal 
 Government .' 
 
 (Objected to as calling for matters of opinion.) 
 
 A. I think they were. v 
 
 Again, at page 713: 
 
 Q, Please state 1 in what way the presence of United States troops affected the elec- 
 tion ? A. The impression prevailed that the National Government backed the Repub- 
 lican party in South Carolina. 
 
 Q. With whom did this impression prevail? A. With all classes. 
 
 Q. Did the l roops in any way interfere with the election, or in any way influence 
 or change votes? It' so. state how, and the means used. A. They didn't interfere in 
 any way, nor did they change votes, unless by their presence. 
 
 Q. How did the coming of the troops discourage the Democrats? A. Only by en- 
 couraging the Republicans to vote solidly. 
 
 Q. Do you mean to say, when yon say that the, Democrats were discouraged, that 
 they did not poll their full strength in this county .' A. Can't say that, as I can't say 
 what the full voie was; I mean by being discouraged that they would have polled a 
 heavier vote if the troops had not been here. 
 
 < t >. How many votes would they have polled if the troops had not been here? A. 
 1 don't know, sir. 
 
 Q. I low many did they poll ? A. I don't know, sir. 
 
 Q. If yon don't know how many they polled, or how many they would have polled, 
 how can you say but for the troops they would have polled more? A. They were in 
 hopes to poll more. 
 
 ( t ). When you say that the coming of the troops encouraged Republicans, do you 
 mean to say that it gave them the assurance of voting as they pleased, or what do you 
 mean .' A. I have answered the question, 
 
 (,,. Did the coming of the troops, in your opinion, do more with the Republicans 
 than assuring them of a free ballot .' A. I think it did. 
 
 Q. What more.' A. They massed a considerable quantity of arms near the ballot- 
 box, in the jail here, which they would not have attempted if the troops had not been 
 here. 
 
 Q. 1 understand you, then, to say that the placing of these guns iu the jail was from 
 the inlluence of the troops upon colored voters? A. I have answered the question. 
 
 Q. Is it not a fact that about the time, polls closed the Democrats called upon the 
 troops to guard those anus in jail, and they did so? A. I cannot say that, that is a fact; 
 I communicate;! this fact to Lieutenant D.-ams, both iu person and by Captain Earle, 
 the supervisor at the poll (on the, part of the Democrats as I am informed). 
 
 Q. How was tin coming of the troops generally considered? A. It was considered 
 as indorsing the State government and backing it. 
 
 Q. Did you nor go with the Republicans to the first Republican Tinimonsville meet- 
 ing? A. I went with J. A. Smith and no crowd at ali. 
 
 A. 0. Spain, having been called as a witness for the contestant, after 
 being duly sworn, testified as follows, to \vit (Eecord, p. 714) : 
 
 Am a resident of the town of Darling, and was present the 7th of November, 1876. 
 
 Question. What was your profession .' Answer. A lawyer. 
 
 Q. Can you speak as to the effect of the introduction of the United States troops 
 into tli-' canvass of Darlington County? A. Tin; introduction of troops into the State 
 of South Carolina produced a very marked effect in the county of Darlington before 
 any troops were ever heard of in Darlington County. The governor of South Carolina 
 had issued a proclamation full of slander of the Democrats, so far as Darlington County 
 was concerned; upon that proclamation tin- President of the United States acted, on 
 the assumption that the Democrats, wiih arms in their hands, were using their organ- 
 ization and arms to force the negroes to vote the Democratic ticket. Based upon this 
 slander the military force of ihe United States were, on the call of the governor, sent 
 by the President of the United States into South Carolina, the result being a wide- 
 spread impression that the troops were intended to influence the election directly by 
 sustaining one party (the, Republican), and in acting antagonism to the other (the 
 Democratic). The ignorant colored voter adopted the view of the governor and Presi- 
 dent, and acted on it. 
 
 (This answer is object' d to, as being matter of opinion, and as interpreting the 
 proclamations of the President and the governor, which are alr< ady in the case..)
 
 264 DIGEST OF ELECTION CASES. 
 
 Q. In your opinion \vere there any circumstances which warranted the introduction 
 of United States forces? A. There were no circumstances in the county of Darling- 
 ton wiirrauting the introduction of the troops. The circumstances upon which the 
 troops were introduced were created by the governor himself; they did not exist in 
 fact. 
 
 (Objected to as matter of opinion, and as not being in rebuttal.) 
 
 Q. But for the iuteiference of the State and Federal executives, is it or not your 
 belief that the Democrats would have carried this county? 
 
 (Objected to, as calling for opinion.) 
 
 A. B~iore the moral and physical influence of the State and Federal Government 
 were brought to bear upon the election, I did entertain an opinion that the chance to 
 carry Darlington County for the Democrats was a fair one. I never was as sanguine 
 about it as others. After these proclamations and the introduction of the troops, I 
 noticed a very wide change in the opinions and conduct of the colored people, and 
 they became intensely antagonistic in their feelings and conduct to the whites. I 
 heard from a number of colored persons, men and women, that President Grant had 
 taken sides with them, and I have heard them say, in conversations that I have had 
 with them, that they could not vote against the radical ticket. 
 
 G. "W. Dargan, having been called as a witness for the contestant, 
 after being duly sworn, testified as follows, to wit (Record, p. 729) : 
 
 Question. Are you a resident of Darlington County, and were you present at th 
 general election of November 7, 1876? Answer. I am, and was. 
 
 Q. Your occupation ? A. Lawyer. 
 
 Q. What was the state of feeling between the two political parties here early in 
 the campaign ? A. No bitterness in the early part of the contest. 
 
 Q. What was the state of feeling immediately preceding the election ? A. Very 
 bitter. 
 
 Q. Can you account for this? A. It was the natural result of the prolongation of 
 the contest, aggravated by the proclamations of Governor Chamberlain and President 
 Grant. 
 
 Q. In your judgment, what effect bad these proclamations, and the threatened and 
 actual introduction of troops into the State, upon the two political parties? A. The 
 loss of thou.-ands of votes to the Democracy. 
 
 Q. In your .judgment, but for those measures, which party would have carried this 
 county? A. The Democratic party, by several hundred votes. 
 
 Q. What was the purpose of the. Democratic organizations in this county ? A. De- 
 fensive, so far as I know, arm purely political. 
 
 Q. Were they military organizations? A. They were not. 
 
 Q. Were you or not an officer of the club at this place? A. I was. 
 
 Q. What has always been your position in politics? A. Always been conservative. 
 I was a Chamberlain man up to the time of General Hampton's nomination. I was 
 opposed to General Hampton's nomination. 
 
 Q. Have not the Republicans of this county sought to put you in nomination for 
 office? A. I have been approached by Republicans of some prominence on various 
 occasions and asked to allow my name* to be used for office. 
 
 W. P. Gee, having been called as a witness for the contestant, after 
 being duly sworn, testified as follows, to wit (Record, p. 734): 
 
 Question. Are you a resident of Darlington County, and were you present on the 
 7th of November, 1876? Answer. Yes; I am, and was at and voted at the Florence 
 precinct. 
 
 Q. You live in the Ebenezer neighborhood and are by occupation a planter? A. I 
 do, and am. 
 
 Q. Did the Ebeuezer Democratic club ever drill with arras? A. They did not. 
 
 Q. Do you know anything of arms being sent to the colored Republicans at Kben- 
 ezer preceding the election? A. Yes, sir; I know that they had them; I saw them 
 with them; they were breech-loading rifles; they said they were State arms. 
 
 Q. Had they ammunition ? A. They had accontermeuts and cartridge-boxes, and 
 said they had ammunition. 
 
 Q. Had they had these aims long before the < lection ? A. It was a short time before 
 I saw them. 
 
 Q. Did they have them after the proclamations of the governor and President ? A. 
 They still bad them. 
 
 (To all of the above <|iiestions and answers relating to arms or ammunition, con- 
 te>tee's counsel objects: 1st, because it is not in reply: -Jd, it is irrelevant to any as- 
 pect of the ease; :id, as it appears in the answers, the whole matter testified to is a 
 matter of hearsay only.) 
 
 Q. After these proclamations, and after the introduction of troops into the State,
 
 RICHARDSON VS. RAINEY. 265 
 
 did you observe any change in the colored voters .' A. I did not until they came here; 
 then I did. 
 
 (Object to ipiestion and answer a.s cumulative and not in reply.) 
 
 Q. In your judgment, what effect had the proclamation and troops upon the colored 
 voters ! A. Those that wouldn't vote for iis manifested a spirit of not voting either 
 way, but after the troops came here they said they would vote the Republic >u ticket. 
 
 Q. Then yon think that their presence hart the Democrats in the election ' A. Yes, 
 sir. 
 
 Q. If United States troops had not been first threatened and then introduced into 
 the Slate and county, judging from all you saw and heard among the colored voters 
 during the early stage* of the campaign, what, in your judgment, would have been 
 the result o!' the canvass in Sunitcr l.'ounty .' Would the election have gone Demo- 
 cratic or Republican ? A. I can't say for the county, as 1 was away from home very 
 little during thu campaign, but 1 am sure a great many more colored men would have 
 voted the J >cuiocrat ic ticket here ar Bishop ville, had it not been for the introduction 
 of United Slates troops into the State and county. 
 
 Q. State the facts on which you base this judgment. A. Before the troops were in- 
 troduced into Sumter County, numbers of the coloied people expressed a des re, and 
 willingness to vote the Democratic ticket with the white people; but after the United 
 States troops came they ceased all communication with the whites, submitted them- 
 selves entirely to the dictation and control of their leaders, and appeared to consider 
 the presence of the troops here as an indication of the active .support of the Repub- 
 lican party by the United States Government, and the reason why they must vote the 
 Republican ticket. 
 
 T. D. Foxworth (Record, p. 685): 
 
 Q. Was there any threats or intimidation used by Republicans against their own color 
 during the campaign .' If so. state all you know about this. A. Yes, there were threats. 
 I did not hear any threats, but several of the colored men told me during the cam- 
 paign, before the elect i n. that they were afraid for their lives and property if they 
 voted the Democratic ticket. They said they were threatened so by the colored peo- 
 ple in the neighborhood. Several of the colored voters told me that they wanted to 
 go with tiie Democrats and would vote the Democratic ticket, but they were afraid for 
 their lives and propertv . 
 
 Q. If United States troops had not been first threatened and then actually intro- 
 duced into the State and county, what would have la-en, in your judgment, the result 
 of the canvass in Sumter County / A. It wonldjiave been stronger for the Democrats. 
 I think the county would have gone Republican. 
 
 J. W. Stuckey (Record, p. 672) : 
 
 Q. If United States troops had not been first threatened, and then introduced into 
 the State and county, judging from all you saw and heard among the colored voters 
 during the early stages of the campaign, what, in your judgment, would have been the 
 result of the canvass in Sumter County ? Would the election have gone Democratic or 
 Republican 1 A. My judgment and belief in that if the United States troops had not 
 been sent to the State and county the election would have gone Democratic. 
 
 Q. State the facts upon which you base this judgment. A. Before the troops were 
 sent into this county, numbers of colored voters expressed a desire and intention to 
 vote the Democratic ticket with the white people, but after the United States troops 
 came they changed their intentions, appearing to be influenced by the impression that 
 the troops were sent here to see that they did vote the Republican ticket. 
 
 M. E. McDonald (Record p. 667): 
 
 Question. What is your age, and where did you live during the campaign? Answer. 
 Shiloh Township, Sumter County ; age thirty-four. 
 
 Q. Where did you vote on 7th November lastf A. At Lynchburg. 
 
 Q. Did you see John H. Legare, United States deputy marshal, that day ? A. I did. 
 
 Q. Were any troops stationed at Lynchburg on that day/ A. Yes; about lf>0 yards 
 from the polls. 
 
 Q. Did .John II. Legare, United States d pnty marshal, say to you or within your 
 hearing, that those troops were subject to his orders.' A. He was reading a paper, 
 which he said was United States law of elections, lie said tin 1 campaign was over; 
 that all we could do now was to offer a man a ;ieket; if we went any further we 
 would render ourselves liable. "Those United States troops yonder are sent here to 
 arrest any man that I will point out." He said he did not wan: to arrest anyone, but 
 was sorry he would have it to do. Said there would be fifty arrests at Bishopville; 
 that the man who had been sent there was a perfect tyrant. 
 
 Q. Was there not, from United States deputy marshal's conduct and threats of what 
 he would do with the troops, a wide-spread intimidation among the democratic vo-
 
 266 DIGEST OF ELECTION CASES. 
 
 ters; ami are you not satisfied that many votes were lost to the democrats at Lyuch- 
 burg precinct by reason of this conduct of Legare's ? A. Yes, I am : to both. 
 
 J. T. Mclntosh (Record, p. ) : 
 
 Question. "What is your age; where were you during the campaign ? Answer. I a in 
 twenty-six : was in Lynchburg Township, Sumter County. 
 
 Q. Were you at Lyuchburg poll on 7th November last ? A. Yes. 
 
 Q. Did yon see United States Deputy Marshal John H. Legare about the polls that 
 day? A. I did. 
 
 Q. What did he say ? A. I heard him say that the United States troops were subject 
 to his orders, and would arrest any one he ordered to be arrested. 
 
 Q. Were yon afraid, along with the other people, to electioneer? A. Yes. 
 
 J. M. Sanders (Record, p. 663) : 
 
 Question. What is your age, and where did you live during the campaign ? Answer. 
 I am fifty-five; Lynchburg Township, Sumter County. 
 
 Q. Did you hear J. S. Richardson speak at Lynchburg during the campaign? A. 
 Yes; twice, I think; once certainly. 
 
 Q. Did he advocate force or violence as a means of carrying the election ? A. No; 
 he used very strong arguments that if the colored Republicans would go with the 
 Democrats we would have a better government. 
 
 Q. Where were you on day of election ? A. I was here in Lyuchburg during the 
 latter part of the day. 
 
 Q. Did you hear of J. H. Legare, deputy United States marshal: and if so, what ? 
 A. I heard that he was taking down the names of many persons, and it was supposed 
 that they would be carried to Charleston. 
 
 Q. What were the charges against the parties? A. Those who took an active part 
 in electioneering were to be put on the list; also for alleged acts of intimidation. It 
 was a prevailing rumor. Many of my friends warned rue to " look sharp." 
 
 Q. Such were your fears, engendered by these rumors, that you were very cautious 
 in electioneering: was it not so? A. I came here to exercise my privilege as a free 
 citizen of speaking to the people in the mildest and gentlest manner to induce them 
 to vote the Democratic ticket ; but I at once abandoned all idea of electioneering, and 
 kept out of Legare's way. 
 
 Q. Did you hear that United States troops werj under Legare's orders ? A. I thought 
 so; 1 was confident of it. 
 
 Q. How far were the troops from the polls? A. About two hundred yards or less, 
 and in view outside of buildings, I suppose. 
 
 Q. Do you know anything of intimidation of blacks by blacks? A. Cannot give in- 
 stances, but I am satisfied that many colored persons who desired to vote the Demo- 
 cratic ticket were intimidated by their colored neighbors. 
 
 A. H. Frierson (Record, p. 661): 
 
 Question. What is your age ? Answer. Fifty-six. 
 
 Q. Where did you live during the election? A. Lynchburg Township, Sumter 
 County. 
 
 Q. Where did you vote ? A. At Lynchburg. 
 
 Q. Judging from what you saw of the conduct of colored voters before the intro- 
 duction of the trcops and after their introduction, do you or do you not think that the 
 call for an introduction of troops had a decided effect upon the voters T A. I think it 
 had. 
 
 Q. How? A. I think it prevented some of the colored voters from voting the Dem- 
 ocratic ticket. It had been reported -among the cslored people that if they voted the 
 Democratic ticket they would be arrested by the troops. , 
 
 Q. Do you know of any blacks intimidating others from voting the Democratic 
 t icket ? A. Not in my personal observation, but to the best of my knowledge and be- 
 lief, there was a wide-spread intimidation of blacks by blacks. 
 
 Q. J. II. Legare testified in his examination for Rainey that the troops were a half 
 mile oil' and not in sight ; is this true or false ? A. It is false. They were fully in sight 
 and within "200 yards of the polls. 
 
 Q. J. H. Legare says that he did not say to any one on the day of the cl-ciion at 
 Lynchbiirg that the troops stationed here were subject to his orders and would arrest 
 whoever lie directed arrested. Do you know this to be false T A. I know it to be 
 folae. 
 
 Q. Did Legare speak to you on election-day on that point ? A. Yes. He said those 
 troops (pointing to : .vhicli were in sight) are subject to my order ; exposed 
 
 his badge as United Sratr* di-puty marshal : said he was deputy marshal, to satisfy me 
 that he had authority over the ir". 
 
 Q. Did Legare electioneer on that day ? A. I do not think he did.
 
 RICHARDSQN VS. RAINEY. 267 
 
 Q. Did he say anything to prevent elect ioueering ? A. He said the canvass closed 
 yesterday at (i o'clock, and there should he no more electioneering. 
 
 Q. Did not the statements of Legare h-ave the impression on your mind that elec- 
 tioneering 011 that day was a violation of law of the United States ? A. Yes ; and that 
 we wt-re. liable to be arrested for it, and that lie had the authority. 
 
 Q. Were yon not yourself so intimidated by the conduct and statements of J. H. 
 Legare as to deter you from taking an active part in electioneering that day! A. 
 Yes. 
 
 Q. Were not the white people generally intimidated from the same cause ? A. Yes : 
 several expressed themselves to me in that way. 
 
 Q. Did Legate take the same pains to stop colored Republicans from electioneer- 
 ing? A. No. 
 
 Q. Were the negroes very active? A. They were. I have seen as many as three 
 after one, electioneering. 
 
 K. AYitherspoon (Kecord, p. (555): 
 
 Q. What is your opinion of the effect of the introducing the troops? A. I think it 
 went against the Democratic party. 
 
 Q. Why ? A. I think it made many vote the Republican ticket who would not have 
 done so. or would have staid at home. 
 
 Q. Do you think tie Republicans could have rained this county without the intro- 
 dm-tion of United States troops into the State ? A. I do not. 
 
 Q. Do you know any instances of colored Democrats being intimidated by colored 
 Republicans ? A. No; not in my personal observation. 
 
 Q. To your best knowledge and belief, was there or not a wide-spread intimidation 
 by colored Republicans of men of the same color \\ho wished to vote the Democratic 
 ticket ? A. There was. 
 
 J. A. Mills (Kecord, p. 650) : 
 
 (.}. Wha! was il e eii'eet of the introduction of United States troops here upon the 
 mi .' A. It was certainly very de rimental to the Democratic cause. 
 
 Q. Had il not a bolt-dozing effect upon tlu- colored voters? A. It certainly kept 
 them in ;!; KepuV.ican ranks, and prevented them from joining the Democrats. 
 
 Q. T.> your best knowledge and belief, was there or not a wide-spread intimidation 
 by colored !ie|'iililira::s of c<-]ored men who wished to vote the Democratic ticket ? A. 
 There was. One colored voter told me In- would join the Democrats if he was not 
 afraid. 
 
 J. II. Wilson (Record, p. 654) : 
 
 Q. What do you think of the effect of introducing United States troops ? A. I think 
 
 it was detriment a i to rbe Democrats. One colored man asked me if he would be allowed 
 
 to vole the Democratic ticket since the United States troops had arrived. Said he had 
 
 (old by other colored meii that thev would not be allowed to vote the Democratic 
 
 ticket. 
 
 Q. What cjiect did fhe introduction of United States troops have upon the election 
 in this count \ : A. I think it likely if they had not come the Democrats would have 
 carried it. 
 
 (.}. To your best knowledge and belief, was there or was there not a wide-spread in- 
 timidation of colored voters.' A. There was. 
 
 J. H. Cooper (Uecord, p. 651): 
 
 Q. Have you not reason to believe that there was wide-spread intimidation? A. I 
 believe that I here was. i was told (objection by contestee) by a colored man that he 
 would vote the Democra ic ticket, but feared that the colored people would double- 
 team on him and beat lii-n to death. 
 
 Q. Were there other c-vidcnci s satisfactory to your mind? A. There were. 
 
 Q. Do yon know if any Unit d States troops \\vre introduced into this county during 
 the election? A. Yes; saw them at Sumter. 
 
 Q. Where were they stationed? A. At Sumter Court-House. 
 
 Q. Is that one of the largest voting-precincts in the county? A. It is. 
 
 Q. What is your opinion of the eii'eet upon the colored voters of the introduction of 
 United Slates troops into the comity during the campaign? 
 
 (Objection by contestee.) 
 
 A. I think hundreds voted the Republican tic'.et who would have voted the Demo- 
 cratic ticker, or would nor have Noted at all. 
 
 Q. Have yon any idea that the county could have been carried by the Republicans 
 without the use of Uni'.cd States troops .' A. My opinion is it would have gone Demo- 
 cratic. 
 
 Q. Why do you say so ? A. I judge from what has been told me by colored men.
 
 268 DIGEST OF ELECTION CASES. 
 
 At least two of them told me that the troops were sent here to compel the colored 
 people to vote the Republican ticket. 
 
 J. A. Mayes (Record, p. 647): 
 
 Q. From your personal observation, what effect did the presence of United States 
 troops have in the county upon the voters! A. Not being in the part of the county 
 where troops were stationed, I know nothing of my own personal observation. 
 
 Q. What is your opinion as to the effect upon the colored voters of the belief that 
 United States troops were in the county? 
 
 (Objected to.) 
 
 A. Think it caused a large portion of Republican voters to think that United States 
 troops were brought here for the purpose of compelling the Republican voters to vote 
 against the Democrats. This was and still is my opinion. 
 
 Q. Do yon believe that the presence of United States troops had a bull-dozing effect 
 upon the Republican voters ? 
 
 (Objection by coutestee.) 
 
 A. Yes; I think it did. 
 
 Q. The alleged reason of Governor Chamberlain, in his proclamation calling for 
 troops, do A on believe to be the real reason? 
 
 (Objection by contestee.) 
 
 A. I oo not. 
 
 Q. What was. in your opinion, the real object? 
 
 (Objection by coutestee.) 
 
 A. I think the real object was to keep the Republican voters in line, and to prevent 
 them from voting the Democratic ticket. 
 
 Q. Was or was it not done to bull-doze colored voters ? A. That was my impression. 
 Governor Chamberlain, seeing that the Democrats were thoroughly orgahized, had 
 troops brought into the State to counteract that. 
 
 W. J. Rees (Record, p. 636): 
 
 Q. You state that had not United States troops been introduced into Snmter County > 
 more colored people would have voted the Democratic ticket; why sot A. I think 
 the colored people had begun to show a disposition :o listen to Democratic speakers, 
 and come out to their meetings; and, as wvll as I can recollect, they stopped coming 
 to Democratic meetings after the troops arrived. Only those who were members of 
 the Democratic clubs came out after the troops came. 
 
 Q. Yon state that if any difficulty should arise, the troops were here to help the 
 Republicans; what do yon mean by that? A. I was told by a colored Republican 
 that he had been told by his leaders that he would not be allowed to vote, and that 
 the troops were here for the purpose of seeing that they would be allowed to vote. 
 
 John H. Burgess (Record, p. 632): 
 
 Q. How did the appearance of troops here have the effect of making the colored 
 Republicans believe that the United States Government wished them to vote the Re- 
 publican ticket? A. Before the troops came here I think the colored people were 
 inclined to listen to us, but after the arrival of the troops their behavior changed. 
 
 Q. Did the troops interfere to prevent the colored people from listening to youT 
 A. They did not directly, except through the influence of their presence here. 
 
 Q. How did their presence here interfere ? A. I believe that they were told that the 
 troops were sent here for the purpose of keeping up the Republican ranks. 
 
 Q. From all you saw and heard during the campaign, what, in your judgment, would 
 have been the result of the election in Sumter County had the United States troops 
 not have been introduced into the State and into the county ? A. I think the Demo- 
 cratic candidates would have received very many more votes than they did receive. 
 
 Q. Give the reason on which you found your judgment ? A. In my opinion the ap- 
 pearance of troops here had the effect of making the colored Republicans believe that 
 the United States Government wished them to vote the Republican ticket. 
 
 But your committee can cumber this record with no further extracts 
 from the testimony on this point. Many other witnesses testified sub- 
 stantially as those whose evidence is cited. There cannot remain a doubt 
 in the impartial mind that the sending of the troops of the United States 
 into South Carolina and the uses made of their presence did produce a 
 marked and controlling effect upon the result of the election, amply suf- 
 ficient of itself to justify your committee in declaring the election null 
 and void. 
 
 But even had no effect been proven, we are not prepared to say but 
 that their very presence at the polling-places, the mere fact of their being
 
 RICHARDSON VS. RAINEY. 265) 
 
 sent, without proof of effect, would of itself be sufficient to set aside and 
 annul the election. Our English ancestors, from whom our laws and 
 ideas of constitutional freedom are derived, have been wisely jealous of 
 the slightest tampering or interference with an election by the Govern- 
 ment, and especially through its armed forces. 
 
 Over one hundred years ago an English statute declared the will of 
 Englishmen on this subject as follows: 
 
 Be it cnacttd bi/ tlic Jiiuii'x Mi at M(ijt*1y, />// and with the adrice and consent 
 
 of the Lord*, spiritual and trmiiorat, and (.'onmiun* in I'arliami-itt assembled, and by the 
 authority of the game, That when and as often as any election of any pi er or peers to 
 represent the^peers of Scotlard in Parliament, or any n ember or members to serve 
 in Parliament, shall he appointed to be made, the Secretary at War for the time 
 being, or in ease there shall be no Secretaiy at War, then such peison who shall 
 officiate in the place of the Secretary at War, shall, and is hereby required, at some 
 convenient time before tLe day appointed tor such election, to issue and send forth 
 proper orders, in writing, for tlie removal of every such regiment, troop, or company, 
 or other numb, r of soldiers as shall be quartered or billeted in any such city, bor- 
 ough, town, or place wheie such election shall be appointed to be made, out of every 
 such city, borough, town, or place, one day at the least before the day appointed for 
 such election, to the distance of two or more miles from such city, borough, toxvii, or 
 place, aforesaid, until one day at the least after the poll to be taken at such election 
 shall be ended and the poll-books closed. 
 
 It is saddening to the political student to read this statute and then 
 reflect that one hundred years later a Government which boasts its free- 
 dom the most enlarged and enlightened that men have ever enjoyed, 
 should send troops into the very presence of the voters to overawe and. 
 control an election. 
 
 Aiid another, the greatest of law-writers, perhaps, declares : 
 
 And as it is essential to the very being of Parliament that elections should he ab- 
 solutely free, therefore all undue influences upon the electors are illegal and strongly 
 prohibited. For Mr. Locke ninks it among those breaches of trust in the executive 
 magistrate which, according to his notions, amounts to a dissolution of the Govern- 
 ment, " if he employs the force, treasure, and offices of the society to corrupt the repre- 
 sentatives or openly to pre-engage the electors and prescribe what manner of persons 
 shall be chosen. For thus to regulate candidates and electors and new-model the 
 ways of elections, wha; is it, " says he, " but to cut up the Government by the roots and 
 poison the very fountain of public security ?" As soon, therefore, as the time and place 
 of election, either in counties or boroughs, are fixed, all soldiers quartered in the place 
 are to remove, at least one daybetoie the election, to the distance of two n i'es or 
 more, and not to return till one day after the poll is ended. (Blackstone's Commen- 
 taries, vol. 1, p. 177.) 
 
 And this has been the underlying doctrine of all English decisions 
 n cases of interference with elections. 
 
 At an election held for member of Parliament for Westminster, over 
 one hundred and thirty years ago. by order of three magistrates, a body 
 of English troops were marched up and halted in the church -yard of 
 St. Paul, Covent Garden, very near the polls, where the balloting was 
 proceeding. Upon being informed of this tact by the Speaker, the 
 House of Commons passed unanimously the following resolution: 
 
 That the presence of a regular body of armed soldiers at an election of members to 
 serve in Parliament ; s a high infringement of the liberties of the subject, a manifest 
 violation of the fre dom of elections, and an open defiance of the laws and constitu- 
 tion of this kingdom. 
 
 And by the order of the House the three offending magistrates were 
 arrested avd brought to its bar and compelled to kneel, in which posi- 
 tion they were reprimanded by the Speaker for the breach of English 
 libeity in daring to procure the presence of troops at an election for 
 member of Parliament; and this was history thirty-five years before 
 the Hi ing of the first gun of the American Devolution; it was law and 
 recognized as such by a Government which then claimed the right to
 
 270 DIGEST OF ELECTION CASES. 
 
 impose taxation without representation, and which had not relaxed the 
 prerogatives of the crown and taken on that spirit of liberty which dis- 
 tinguishes the British Government to-day. The underlying' idea was 
 that the representatives of the people should come free and un tram- 
 meled from a free and uutramineled people; that the body of the Com- 
 mons, being the representatives of the people and a check in favor of 
 popular liberty against the kingly power, should be in the method of 
 their election free Iroin all kingly influences. For if the King could in- 
 terfere and control the elections, and overawe the people, and occasion 
 the election of his creatures and partisans, then would this great repre- 
 sentative body but be. he slave and tool of the King, and the triumph of 
 the one-man power over the people was accomplished. Such, indeed, is 
 the spirit and tenor of all the English decisions. 
 
 But we are asked by contestee's counsel to go into a critical examina- 
 tion of the testimony and to endeavor to ascertain the exact results of 
 the intimidating influences. He contends that undue influence in an 
 election must be shown to have affected the result materially. In this 
 he is in the main correct. In the entire district over 34,000 votes were 
 polled. Only about 500 witnesses were examined, and many of these 
 in regard to facts other than the subject of intimidation. It is impossi- 
 ble to tell the exact change produced by the intimidating influences, 
 nor is it essential. It is sufficient that three hundred witnesses, white 
 and colored, Democratic and Republican, and some of them men of the 
 highest character, swear positively to the general \vide-spreadand pow- 
 erful influence and change produced by the intimidating influences. 
 McCrary's Law of Elections lays down the rule. p. 3L'(>, winch we regard 
 as correct: "If the violence and intimidation have been so extensive 
 and general as to render it certain that there has been no free and fail- 
 expression by the great body of electors, then the election must be set 
 aside, notwithstanding the fact that in some of the precincts or counties 
 there was a peaceable election." And in the Canada case, already quoted 
 from, Justice Eitchie said, in delivering his opinion : "And though I have 
 no means of computing or ascertaining the exact extent of the terror or 
 undue influences, it was still in my opinion such and so great an inter- 
 ference with the freedom of the elections as demands that the election 
 should be annulled." That these undue influences were general and 
 powerful and caused the greatest change is admitted by the counsel 
 for contestee, himself a Carolinian and a gentleman of great attain- 
 ments. 
 
 On pages 58 and 59 of his brief, after giving a fearful picture of the 
 ruin and desolation brought on South Carolina by her carpet-bag rulers, 
 he continues : 
 
 At last this condition of things became unendurable. The better class of Republi- 
 1 lie more int<-lligent .and industrious of the colored people tlumsclves. felt and 
 acknowledged that social existence was in dan-er. 
 
 Early in 1676 preparations were made for the fall elections. At first it was uncer- 
 tain whether the wliite Democrats would .join the better leaders of the Republican 
 narty and enable them to re form and control their following. In nia-iy portions of the 
 State the colored people themselves manifested a willingness io get rid of their cor- 
 rupt and insolent leaders. The Democratic party finally determined that their only 
 .security was to gi-t absolute possession of the Government. They nominated General 
 Hampton and a full ticket. This nomination was a resurrection of life and spirit, 
 almost, I believe, entirely, unparalleled. From the mountain. districts, in which the 
 white Democracy had a sure majority, thiough the more doubtful middle districts, into 
 the ve-y heart of the coast districts, where the vast colored majority were concen- 
 trated, the enthusiasm spread. At first, and to some extent, it caught the sympathy of 
 the impulsive negro; but, as it spread, the Republicans found that for them it was 
 either union or destruction. The character of the ticket, the declarations of the cam- 
 paign, the astounding strength and passion of the movement, satisfied the Republican
 
 RICHARDSON VS. RAINEY. 271 
 
 leaders that there was no coniproMii.se to lie negotiated. It was cither victory or siieh 
 a defeat as would sweep them out of the State. They selected as their leader Governor 
 Chamberlain, whose culture, ability, and honest dibit at reform during his past admin- 
 istration made him by far the best representative they could present to those who, out- 
 side of the State, were watching the progress <;' the conlliet. They appealed to the 
 colored man with even more vehemence than when tht-y originally won him. There 
 was not a prejudice, an apprehension, which they did not arouse skillfully. They 
 alarmed him with the prospect of disfranchisement. return to slavery. They excited 
 his wives and daughters with the fear of restoration to their menial condition and the 
 prohibition of all the small vanities in which they delighted. They, to a large extent, 
 (led. and, as a body, the negroes, especially in the old large slaveholding dis- 
 tricts -the former districts of large estates and great owm-rs went back to their old 
 convictions. They dropped off Irosn the Democratic clubs. They were shy of talking 
 politics as in the early summer. Their preachers preached and prayed, and their 
 women stormed, and. as a general rule, they all voted the Republican tick 
 
 Here, then, is the fair and square admission of the social, spiritual, 
 and actual intimidation of the colored people over those of their own 
 race who thought to be free enough to vote as they pleased. 
 
 And on page (12 he broadly admits the intimidating influences of the 
 troops by reason of the ar</umentx ilraiai from their coming into and pres- 
 ence in the State and near the polls. He says, page 02 : 
 
 The campaign of IdTti was a contest between the intelligence, character, and prop- 
 erty of the State on one side, and a ruinous and corrupt administration on the other. 
 The interests at stake were so obvious that grea' nuaibers of the colored people hesi- 
 tated, decided to abandon their party, and promised to vote with the Democrats. But 
 the sending of troops into the State made them aware that the great Republican party 
 of the North and the administration did not sympathize with the Democratic move- 
 ment, thought it dangerous for the colored people and threatening to the national su- 
 premacy of the Republican party, and under this influence the vacillating body of col- 
 ored voters went back to their party allegiance. 
 
 The admission of .his counsel is the admission of contestant ; and 
 here is his broad, open, frank admission, that the coming of the troops 
 made a great change in the minds of "great numbers" of the colored 
 voters. And with this admission on his lips how can he expect to retain 
 his seat here? He admits that he holds it, not by the choice of a free 
 untrammeled people, but by the majority of a herd of frightened, dis- 
 mayed, duped, and terrorized voters. 
 
 But contestant, whose pacific and manly course during the election, as 
 shown by the record, and whose consummate ability in the manage- 
 ment of his cause, or rather the cause ot his people, has won the highest 
 respect and sympathy of the committee, sets forth and shows that the 
 intimidating influences set on foot by the Republicans did not reach or 
 afleet the entire district; that troops were sent into but four of the 
 eight counties that constitute the district, and he. contends that the 
 intimidated counties and precincts should be thrown out, and the peace- 
 ful counties and precincts counted, which, being done, would elect him 
 and entitle him to the. seat. And lie cites the cases of Wallace c. Simp- 
 sou, Sheldon r. Hunt, Sypher r. St. Martin, Darrall v. Bailey, 2d Bart- 
 lett, pp. 099 to 754. 
 
 It is very true that these cases were decided by a Republican Con- 
 gress. They do lay down the doctrine contended for by the contestant. 
 Party expediency might now suggest that the Republican party that 
 made these precedents ought to be bound by them. If we should treat 
 these decisions as containing the true doctrine of elections, if we could 
 regard them as other than expressions of partisan intolerance, there 
 would be no difficulty in reporting a resolution awarding the seat in 
 contest to the contestant. 
 
 But in the first place the undue and illegal influences exercised by the 
 Republicans upon the colored people through their social, religious, and 
 semi-military organizations extended nearly throughout the entire dis-
 
 272 DIGEST OF ELECTION CASES. 
 
 trict ; and in the next place we find troops sent into four counties the 
 aggregate vote of which w;is 21.091, while in the other four weaker 
 counties, where there were no troops, the vote was but 12,987. To ex- 
 clude 21,691 votes out of a total of 34.078 votes and count the residue 
 and declare a result would be to permit an election by a minority. 
 This is admissible, it is true, where the election was fair, and all had an 
 opportunity to vote as they chose and failed only through apathy. 
 Such is not the case here where 34.078 voters oast their ballots. But 
 a ven- large portion of these, sufficient to have changed the result, cast 
 their "ballots under such undue and illegal influences as to utterly de- 
 stroy the fairness and freedom of the election. Under such circum- 
 stances we cannot admit that it would be right to permit a minority to 
 elect. In the case of Sypher, cited above, the report of the committee 
 which laid down the doctrine of minority elections was expressly over- 
 ruled, vide McCrary's Law of Elections, pp. 324, 32.1, 32G. 
 
 The true rule in such cases seems to your committee to be, that a 
 minority can only elect where the majority, with full opportunity and 
 facility to vote as they choose, unrestrained and untrammeled by undue 
 influence, refrained through apathy or neglect from voting. But when 
 undue influence, terrorism, intimidation, or illegal influences have been 
 brought to bear upon the great mass of the voters, and they have been 
 influenced, and have voted subject to these influences, although the full 
 and accurate extent of such influence cannot be arrived at, the entire 
 election should be voided, although a minority may have voted, free 
 from such influences, and for this reason: The entire people in such 
 case evinced a desire to vote. The right of the majority to rule is fun- 
 damental. In such a case the will of the majority is defeated, not from 
 apathy, but from undue influence. The true remedy is to void the elec- 
 tion, remove the undue influences, and give the majority that opportu- 
 nity to rule which is its undoubted right. 
 
 Your committee trusts that the day of sending troops to influence and 
 carry elections has gone by forever. In the case of South Carolina, in 
 1876, no more flagrant violation of law and utter disregard of the Con- 
 stitution of the country and the rights of States and people was ever 
 shown, even under the most tyrannical forms and administrations of 
 Government. 
 
 Your committee believe that troops were sent into that State for no 
 other purpose than to carry the election. And in this view, they sol- 
 emnly declare that, in their opinion, any election in which the influences; 
 of armed soldiers are apparent to any general extent, in which the Fed- 
 eral Government has sought to interfere with its armed forces, and has 
 interfered so as to cast doubt upon the result, ought ipso facto to be 
 voided. Such influence is poisonous to the very life of free institutions. 
 It should be checked with stern and prompt resentment by voiding and 
 annulling any election where such interference has occurred, and the 
 influence is general, although impossible to estimate it. 
 
 After full and patient investigation of this case, your committee con- 
 clude that no full, fair, or free election was held in the first Congres- 
 sional district of South Carolina in November, 1870 ; and therefore re- 
 port the following resolution and recommend its adoption: 
 
 Rewired, That there was no free, fair, and peaceable election in the 
 first Congressional district of South Carolina in November, 1870, and 
 that neither Joseph II. Kainey nor John S. Richardson is entitled to the 
 seat from s'.iid district in the Forty-tilth Congress by virtue of said elec- 
 tion, and that said seat is hereby declared vacant.
 
 RICHARDSON VS. RAINEY. 273 
 
 Mr. HISCOCK submitted the following as the 
 VIEWS OF THE MINORITY. 
 
 A minority of tlie House Committee on Elections beg leave to submit the 
 
 following report: 
 
 We understand the majority of your committee to recommend Mr. 
 Rainey's election to this House be declared null and void, and his seat 
 vacant, upon two grounds : 
 
 First. The colored electors of his district were deprived of the free 
 exercise of the elective franchise by fear of violence to their persons 
 or property, or social ostracism by people of color, and to an extent to 
 render it doubtful, except therefor, if he, Mr. Rainey, would have been 
 elected; and, 
 
 Second. The presence of United States troops in the Congressional 
 district upon and immediately previous to election day, coerced and 
 unlawfully influenced the colored electors to vote for Mr. Rainey to an 
 extent to render it doubtful if he, Mr. Rainey, would have been elected 
 except therefor. 
 
 The majority report indulges extensively in the history of the State 
 of South Carolina for the years intermediate the close of the war and 
 the election, or the opening of the canvass preceding the same. 
 
 The record submitted in this case fails to furnish the evidence of the 
 facts alleged, and, in our judgment, the waitings over the real or fan- 
 cied past wrongs of the State are as much out of place in the report as a 
 discussion of the causes of the war, or any of its results, would be. 
 
 Our examination should be limited to the issues involved, and we con- 
 fess to disappointment it should be deemed proper in this case to make 
 use of the stock in trade of the stump-speakers during the last ten years 
 to inflame the minds of the majority up to the point of dismissing, un- 
 justly, as we believe, a colored Representative from South Carolina from 
 this floor. 
 
 And it seems to us the inflammatory appeal is a confession of the 
 weakness both of facts and logic upon which to base the action recom- 
 mended to the House. 
 
 We will first examine the proposition of intimidation of colored elect- 
 ors by the colored people and social ostracism among themselves on 
 account of difference in political views. And we will at the outset call 
 attention to the fact that there is no law in. this or any other country 
 enjoying a popular government and the elective franchise making it a 
 crime for those of adverse views to refuse to associate together. On 
 the contrary, the social relations in political organizations are cultivated 
 as properly strengthening them. 
 
 It is a notorious fact in this country, Presidential elections are heated; 
 the passions of the people, male and female, aroused ; angry discus- 
 sions are of the most frequent occurrence, even between members of 
 the same family and of the same church. The press appeals to the 
 prejudices; monster public meetings are held by the parties respect- 
 ively ; night as well as day is given to political discussion; mottoes and 
 songs, demagogues and statesmen vie with each other often in misstate- 
 inents of fact or ridicule. The business of the people is in part sus- 
 pended. Men pour out their money freely for the expenses of a cam- 
 paign, to the end it may be conducted upon a plan to create excitement. 
 
 We have stated the facts in regard to a Presidential campaign in the 
 H. Mis. 58 18
 
 274 DIGEST OF ELECTION CASES. 
 
 most temperate community iu the United States ; aud upon election 
 day scarce a poll but will have witnessed heated political discussions 
 between personal friends ; and we confidently appeal to the record in 
 this case nothing occurred among the colored people in Mr. Kainey's 
 Congressional district more violent, there were no more extreme disturb- 
 ances of the social relations on account of Apolitical differences among 
 them, than we have described, notwithstanding so much to which we 
 shall refer calculated to provoke extreme excitement. 
 
 We now invite attention to the State of South Carolina. 
 
 General Hampton was nominated for governor of that State by the 
 Democratic party about August 15, 187G. 
 
 We will grant, if you please and it is doubtless true his supporters 
 believed all that has been stated of misrule in the State. 
 
 It was the determination of his party to elect him; believing in the 
 misrule, as they did, that they were subjugated to the colored race and 
 white ad venturers, they were determined to regain the government of the 
 State. Paint as vividly as you may their real or fancied wrongs, and 
 the same language will measure their excitement, their anger, and their 
 intolerance. 
 
 Previous to the nomination of General Hampton " rifle-clubs" and 
 "saber-clubs" had been formed. 
 
 We shall, further on, insert brief extracts from the evidence establish- 
 ing the fact; and we charge the record is replete with it; and we charge 
 there is no conflict of evidence upon the point. 
 
 The nomination of General Hampton was followed by public meet- 
 ings, addressed by him usually, and in the first Congressional district 
 by the contestant also. At these public meetings appeared bands of 
 armed men, armed with pistols and sabers or guns, mounted on horses. 
 It was not an infrequent occurrence. Hundreds thus armed and 
 mounted would be in line on one occasion as many as 1,500 men. They 
 charged through the streets; they were sometimes attended with ar- 
 tillery, which was discharged. When Republican meetings were held, 
 bands of armed men, supporters of Hampton, attended them, and de- 
 manded for their speakers to address the meetings. But we can scarcely 
 describe the condition of affairs more briefly or graphically than is done 
 by the evidence. 
 
 Testimony of James D. Blandiug (page 29) : 
 
 Q. How long before the election was the rifle-club formed f A. Long before tho 
 campaign opened. 
 
 Q. Is that the circular you issued? 
 
 (Circular produced and offered in evidence ; 110 objection.) 
 
 A. It was, and was widely distributed. It was the instructions of the State execu- 
 tive Democratic committee. 
 
 Page 29 : 
 
 Q. How many rifle-clubs were formed in the county of SumterT A. I heard of two 
 one saber and one rifle club in Suinu-i . 
 
 Page 28: 
 
 Q. Did you not-, on Hampton's day, see a large number of horsemen? A. I did- 
 They were Democrats. 
 
 Q. Did those parties have side-arms? A. Yes; I saw some men with pistols. 
 
 Q. What was the object, on Hampton's day, of having those men assembled ? A. I 
 suppose to show the numbers of the Democratic party. 
 
 Q. Were they not for the purpose of overawing the Republicans? A. I cannot say 
 so ; I saw both parties meet. 
 
 A. J. Moses (page 32) : 
 
 Cross-examined by Mr. D. D. McCall : 
 
 Q. What was the object of the formation of the rifle-clubsand saber-clubs f A. To. 
 protect the members from the invasion of an enemy.
 
 RICHARDSON VS RAINEY. 275 
 
 Q. What enemy did you hear of? A. None. 
 
 Page 33 : 
 Q. Was there apprehension in the community of violence ? A. I know of none. 
 
 W. A. Cooper (page 39) : 
 
 Q. Did you belong to the rifle-club at Mayesville ? A. I did until Chamberlain's 
 proclamation. 
 
 Q. What was it formed for? A. For home protection. 
 
 Q. If there was general peace, why raise a rifle-club f A. We wanted to be prepared 
 for the worst, and we did not know what was coming. 
 
 (,. How often did, it meet ? A. It only met twice to uiy knowledge. 
 
 Q. Had they otlicers, and how were they known? A. We had a captain and an 
 orderly sergeant. 
 
 Q. What sort of gun did you have ? A. A double-barreled shot-gun. 
 
 Q. How many of the company had rifles? A. A good many got rides just before 
 Hampton's election, and some got guns afterward. 
 
 James A. Mills (page ): 
 
 Redirect : 
 
 Q. You are asked as to the arms owned by the ride-clubs referred to; now, was said 
 amis just the shot -guns or other arms which the farmers had for years! A. They were. 
 
 Q. What was the purpose of the organization I A. Mutual protection, friendly in- 
 tercourse, and to aid the proper authorities in preserving peace and order. 
 
 E. H. Dean .sworn (page 377): 
 
 Q. Wore you at the first meeting at Timmo;isville ? A. I was. 
 
 <^. Please state what you saw that day. A. When we -got there we found about 
 1,5200 or 1,500 Democrats, armed and dressed in red shirts, with rifles, double-barrel 
 ahot-guns, and pistols. The Democrats were anxious to have a joint discussion, and 
 asked the county chairman would they agree to it. He replied that he could not tell 
 them until the rest of the speakers would arrive. When B. F. Whittmore, with the 
 rest ot the speakers, came, Colonel Law, the Democraticcounty chairman, with several 
 others, consulted with Mr. Whittenioreand others of ourspeakersas to a joint discus- 
 sion, and he told him that he would not have a joint discussion under any circum- 
 stances with them, for they had defied him to come there to speak, and they would 
 bring on a row. The Democrats said that if they spoke at the stand they would have 
 a joint discussion, and we moved to another place. They sent the co mittee twice 
 again for a joint discussion, which was put to the meeting and refused. Afterward 
 they came up before, we> concluded the speaking and sourrounded us on all sides. 
 
 Samuel McDuflie (colored) sworn (page 420): 
 
 Question. Where do you live, and how long have you lived here? Answer. Been 
 living in Suuiter since shortly after the emancipation. 
 
 Q. You are familiar, I suppose, with the character of the last campaign ? A. I am. 
 
 Q. Was the campaign very exciting and hotly contested ? A. It was. 
 
 Q. .State what sort of a campaign was it; what was done by the Democrat es during the 
 campaign. A. Persuaded the colored people to come over and vote with the Democrats ; 
 if not, that they would be discharged. 
 
 <^. Did you set- anything like rifle-clubs or organizations? A. I have. 
 
 (Objected to as leading.; 
 
 Q. Where did yon see thorn? A. In Sututcr ; they were drilling with guns; had 
 seven-shooters. 
 
 Q. When was it you saw the riile-clubs drilling with guns? A. Before the election 
 and after the election ; saw them drilling night before last. 
 
 Harrison \Veatherspooii sworn (page 433): 
 
 Q. Have you ever seen the rifle-club at Bishopville, or how did you know there was 
 one? A. I been up there; saw some of their guns and accouterments, and was told 
 by Tyler Dixon, a colored Democrat, that one was in existence there. 
 
 Q. Will you say on your oath that the rifle-club at Sumter ever drilled after Gov- 
 ernor Chamberlain's proclamation disbanding the rifle-clubs, until the election was 
 over? A. I cannot say on my oath that they drilled alter the proclamation was issued, 
 but I can say this on my oath, thai they were marching through the streets with their 
 gnus after night after the proclamation was issued. 
 
 Q. How is it that you have said, in your answer to the examiuation-in-chief, "that 
 they drilled once or twice every week ?" A. I said that the rifle-club, before the elec- 
 tion, did drill once or twice a week at the time 1 found it out. 
 
 Q. Were there any Democratic rifle-clubs in the county? A. They were, and they 
 drilled once or twice every week.
 
 276 DIGEST OF ELECTION CASKS. 
 
 Q. About what time in the campaign did these clubs commence drilling ? A. They 
 commenced drilling four or live weeks before the election. 
 
 W. I. Andrews, testifying of the Hampton meeting held October 7, 
 1876, says (page 478) : 
 
 Q. Please state any instances of violence done to Republicans by Democratic organi- 
 zations. A. On Hampton's demonstration a large crowd of mounted men between 
 500 and 1,000 some- with pistols, and also an artillery company from Columbia, was 
 here, which paraded through the streets, the artillery firing in the heart of the town 
 at night, creating a great fear among the Republicans, both in the country and in 
 town ; seeing such crowds of mounted men, and the way they went on, a great num- 
 ber of the Republican voters got scared. To keep them from being frightened, our 
 Republican executive committee made and gave instructions throughout the county 
 that every Republican voter appear in the town of Santee on the next Saturday, for 
 the purpose of listening to speeches from speakers from abroad, and a large number 
 came to town mounted, as instructed. On the same day a large number of Demo- 
 crats came to town mounted, rode through our ranks two or three times, and the Re- 
 publicans got thoroughly frightened, saying that there was going to be a row. Also 
 our meeting was disturbed once or twice in the court-house by the Democrats, white 
 and colored. At Bishopville, also, we went up there to make a speech; about one 
 hundred mounted Democrats were,in the town ; cursed our men as \ve passed through, 
 and we were informed that they intended to break up our meeting if we spoke there 
 that day. We went about half a mile from the village and had our meeting there. 
 
 H. M. K. Dargan sworn (page 353): 
 
 Question. State what happened on that day. Answer. On leaving Darlington, about 
 9 o'clock a. in., about seven miles from here we met the Timmonsville rifle-club, about 
 120 strong, with red shirts, red flannel around their hats ; some had yellow shirts, also 
 red flannel around their hats. A few words passed between Democrats and Republicans. 
 Some of the Democrats said that we would meet to-night on the way back, and we git 
 youthen. We then went on to Timmousville. About an hour after getting there 
 speaking commenced ; during the speaking things were very quiet. After the speaking 
 was over we had a torchlight procession marched around the town ; coming out of 
 town we met the same rifle-club returning, and they attempted to break through our 
 procession, and they said, " You will have to go around, as we are not going to give 
 the way." We thought best to go around them ; after we gone around them they went 
 on to Timmousville. 
 
 Q. Where were yon on the day of election? A. At Timmonsville. 
 
 Q. Do you know anything of colored men being shut up the night previous to the 
 election in that town? 
 
 (Objection to question as soliciting answer.) 
 
 A. I do. I got there on the morning of the day of election about 5 o'clock ; working 
 up town, I heard a crowd of men in a hall. I asked some one outside what they were 
 doing in there ; they stated that the Democrats had shut these colored men up in there 
 the night previous to keep them from deceiving the Democrats in voting the Democratic 
 ticket. I staid there until it was time for voting, and I saw about twenty-five or thirty 
 colored men coming out, and a white man had each of them by the arm. I followed 
 them to the place of voting; after each white man voted, the white man would hand 
 a ticket to the colored man he had l>y the arm and make him vote it, and both would 
 come out together after they had so voted, and then would turn the colored men loose. 
 About six white policemen were at that poll, and prevented Republicans from voting 
 until that crowd got through voting. During the day white Democrats canie to the polls 
 dressed in different costumes, representing different rifle-clubs, some with the pistols 
 strapped outside of their clothes ; not more than twenty or twenty-five white men were 
 there that day, except dressed as above. Pistols were drawn once on a colored man on 
 account of his voting the Republican ticket ; also I was threatened for discharging my 
 duties as a deputy United States marshal, and they went on so bad that I had to call 
 on the United States troops there. After they drew a pistol on that man, I went up to 
 him, trying to quiet him, and they made threats to me that if I did try to quiet this 
 man they cursed me and said that they would shoot hell out of me before I would 
 get away from there. I told them that I was a United States deputy marshal, and 
 in the discharge of my duties, and they told me they did not give a damn for my mar- 
 shalship. While writing a note to the commanding officer of the soldiers these parties 
 got away. While counting the votes, the honse where the polls were in was crowded 
 by both parties. J heard a Democrat say that, if the Republicans ontcounted them at 
 that poll that they raise hell with them and take the box ; also a speech was made 
 that day, right at the poll, to the effect that if the Republicans did not vote with them 
 so that they could get rid of the damn rascals, t hat they had the land and the money, 
 and they -would neither rent them land nor hire them.
 
 RICHARDSON VS. RAINEY. 277 
 
 Joseph Douglas sworn (page 366) : 
 
 Q. At which poll were you at during the election ? A. At poll No. 1. In the moru- 
 ning, at gray daylight, it was raining pretty rapid ; I got up and dressed myself; went 
 up to see about tickets ; got tickets ; came on back. I met about 150 Democrats there. 
 I waited for a considerable time until most of them voted : spoke to Col. J. A. Law, the 
 Democratic chairman, and told him that I had some friends to vote, and he said, "You 
 can't come in, Douglas." I replied, "Colonel, your men have voted, let them get 
 out of the way." He replied, "That is my business." I said, "Colonel, you treat 
 me with contempt this morning; the men done voted are to get out of the way." 
 He told his men to keep their places. I then saw him take a colored man, Peter Mc- 
 Keever. by the hand, lead him up to the poll, put a ticket into his hand, and voted the 
 Democratic ticket. He then took another one, Joe Dicks, by the hand and do the same 
 thing. Stepped out again ; got Jack King by the hand and gave him the same ticket 
 to vote ; and then I said, "Colonel, I don't like this; you give us no showing." To 
 which he replied, " I don't calculate to give you a showing." I asked him why. His 
 reply was, "We don't intend to live under radical rule anymore." I said, "Colonel, 
 we beat you anyhow." He replied, "If you do you are sorry for it. If you do beat us 
 by the ballots we beat you by the bullets. I know where yon got your guns stacked." 
 I said. " We don't vote with guns ; we vote with ballots." The men I alluded to were 
 all colored men Colonel Law took by the hand. 
 
 Then some one called Mr. Whittemore, who was a United States deputy marshal. 
 Mr. Whitteaiore said to him. "Colonel Law, after your men voted you are to give 
 way to others." Hesaid to Mr. Whittemore, "Thisisnoneof your damned business"; 
 but Mr. Whittemore said, " You must give way. I am deputy marshal, and I must see 
 right and justice go on." Mr. Law then said, "I regard you no more than any other 
 citizen." Mr. Whittemore then said, " I don't want you to regard me any more than 
 any other citizen, but 1 want the right to be done," he n-plied. Colonel Law said, 
 'Your men have their arms stacked, and I know all about it." Mr. Whittemore said, 
 ' What arms have they? " He said, "They have guns concealed in jail." Mr. Whit- 
 temore called me and asked me about it. I told him a few were there, and I had them 
 looked up, and would not let any one have them until the election was over, but that 
 they were not a circumstance to the guns the Democrats had in the drug store, where 
 they had 150 or more. Then Colonel Law gave orders to his men to give way, which 
 they did. Colonel Edwards then took old man Gaston by the hand and made him 
 vote the Democratic ticket, which he did, crying. After that Colonel Law said to Mr. 
 W'hitteinore in my presence that he would not disturb the election any more. The 
 soldiers camped on the hill by Swift Creek, and the Democrats reported to them that 
 we had guns at the jail, and they put a guard there about the time the polls closed, 
 and kept them there until 10 o'clock next day. We had no other disturbances at 
 that poll. 
 
 J. A. Smith sworn (testifying of the Timmonsville meeting): 
 
 Q. Please tell us what occurred at that meeting. A. Seeing the Democrats bearing 
 arms, school-boys from twelve to fifteen years old, seeing those men in arms, I. as the 
 county chairman, felt that it would not be safe for a joint discussion. I consulted 
 with the Democratic county chairman and the other leading Republicans. The county 
 chairman, on the part of the Democrats, promised that he would guarantee that there 
 would not be any collision, but the leading Republicans, with me as chairman, with 
 the threatening outlook, were not willing to risk it, and withdrew the Republicans a 
 half of a mile from the stand that was built jointly, and commenced speaking. We 
 were not interrupted, only by a Democratic committee of five, to insist on a joint dis- 
 cussion. We refused a second time, seeing that the violence was still existing, and 
 we went on. Towards the end of the speaking, the second committee of five came to 
 ask us if they could come to listen to the speeches, and were allowed to do so. They 
 came, between three and four hundred, mounted and footmen, and armed with sixteen- 
 shooter double-barrel guns. One Bill Oliver had a wallet of pistols. They came up 
 and surrounded the wagon on which we were speaking. The Republicans then ad- 
 journed and left. 
 
 Q. The William Oliver that you speak of, don't you know that he has for the last 
 four years resisted and defied the process of the law in this county? A. He has. 
 
 Q. On the occasion of this meeting at Timmonsville, did you not consider a col- 
 lision or bloodshed as imminent ? A. It was imminent. Colored people were fright- 
 ened, and so much so during the first speech that the colored people commenced to run 
 as soon as they learned that the Democrats were coining down. There was some noise. 
 I think a horse broke loose, and they commenced to run. I begged them to be 
 
 Dr. John Lunney sworn (pages 374, 377) : 
 
 Question. Did you attend the second meeting at Timmonsville? Answer. I did. 
 Q. Do you remember, a3 you were going to Timmousville that day, seeing the rifle-
 
 278 DIGEST OF ELECTION CASES. 
 
 club coming from that point ? A. I do. We met them 011 the road, and they cnrsed 
 and abused us as we passed. 
 
 Q. How were they dressed and armed f A. Some had red shirts, others pieces of red 
 flannel on their hats ; some had red flannel on their boots, and had pistols strapped 
 around them on the outside. 
 
 Q. Do you remember the coming out of Timmonsville that night by the Republi- 
 cans? A. I do. We had to halt a long time in order to avoid a collision with the 
 rifle-clubs that were returning to Tiinmousville. 
 
 Q. You are an intelligent man, and I will ask you if the Republicans of this county, 
 from the demonstrations and conduct of the Democrats, were not in constant appre- 
 hension of collision and bloodshed during the campaign ? A. We were; and it was 
 only prevented by the greatest forbearance on the part of the Republicans, and it 
 was averted. 
 
 Q. Contestant's attorney has introduced in the cross-examination (in evidence, Ex- 
 hibit A, page 71) a pledge universally adopted in this county by the land-owners. 
 What effect did pledges of this sort and the violent demonstration of the Democrats 
 have upon the colored voters? A. It compelled a great many to vote the Democratic 
 ticket who otherwise would not have done so. 
 
 Q. What effect did the introduction of troops have upon the colored voters of this 
 county? A. It had no effect, except to give them assurances of protection to vote as 
 they pleased. The majority did not know that the troops were here, and they were 
 not seen at or near the polls during the election. 
 
 C. E. Howe sworn (page 401) : 
 
 Q. Do you know of any acts of violence or demonstrations of violence on the part of 
 Democrats during the campaign? A. I do. I heard of the demonstrations made at 
 the first Timmonsville meeting by the Democrats; was at the second meeting at Tim- 
 monsville, and saw violent demonstrations. Saw the Democrats at Darlington turn 
 out with arms, dressed in red shirts ; this was common duriug the campaign. I knew 
 more of Marion County than of Darlington County; they had rifle-clubs all over the 
 county. The sheriff of the county was a captain of a saber-club. The club in the 
 town of Marion practiced in the Masonic Hall, drilling every Tuesday night, up to 
 the election. On Hampton's day they turned out with red shirts and pistols buckled 
 around them, which was after the proclamations. During t he campaign a colored 
 man was killed at Simon Crawford's, and he had to leave the county, and is in Colum- 
 bia now. In Marion County the colored people were greatly alarmed on account of 
 the demonstrations made by the Democrats, and many colored people staid away 
 from the polls on that account and for fear of losing their places. 
 
 D. D. McCall sworn (pages 403, 404, 405): 
 
 Q. What effect had the presence of troops upon the voters of the county ? A. None 
 whatever, in my opinion, towards changing the vote of a single white or colored voter. 
 There was one company of about fifty-six men in the county, and stationed on day of 
 election at Bennettsville, Brownsville, and Ned Bluff polls; and I have heard promi- 
 nent Democrats as well as Republicans say they did not affect the voting in any way. 
 On the day the troops came into the county the Republicans were holding at Benuetts- 
 ville the only county mass meeting held by them after the opening of the campaign. 
 A large number of mounted Democrats appeared in town on horseback, it was said 
 to divide time, and had one or more Democratic speakers from abroad. When the 
 Democrats iound the troops were comiug they marched in procession on horseback, 
 four or five hundred strong, waving flags and hats, out about a mile, to meet the troops, 
 and marched with them into town, cheering, &c., and in no way attempted to divide 
 time or interrupt the Republican meeting, although they had, before it was generally 
 known that troops would be on hand, assembled in large numbers from all parts 
 of the county, coming into the town in companies, with flags, officers, &c. 
 
 Q. How was the campaign conducted? A. With unusual excitement and bitterness, 
 and with demonstrations entirely new in Marlborough County. I refer to mounted 
 processions of Democrats On the 8th of September \I saw a large number of Dem* 
 crats from Marlborough and Marion County pas.s my spring place on horseback and in 
 buggies, arnird mostly with guns, going ro meet Mr. Whim-more, a Republican from 
 Darlington County, who it was reported hadcomoover into Marlborough ; this report 
 proved unfounded. On Hampton's day, in Bennettsville, a large mounted procession, 
 rnnipi>M-(l, sav, of one thousand, lode, cheering and hallooing, at a gallop through the 
 town, and on the day of the Republican maw-meeting, referred to before, the Demo- 
 crats were out in procession, on horseback, in strong force, and the excitement wasin- 
 tense. Any little ditlirulty on this day between a white and colored man might have 
 led to the sacrifice of a ^n>;it manv lives. 
 
 I heard one of the delegates to the Democratic State convention which nominated 
 Hampton say. after he c;mic home, that "they, the Democrats, were determined to
 
 RICHARDSON VS. RAINEY. 279 
 
 have heaveii or bell, one.'' I heard Colonel Yeorouians, one of the Democrat ic speak- 
 ers on Hampton's day. say, in tin- presence of Hampton, in his speech, that they in- 
 tended to carry the election ; and, it' they did not, that there were in the State twice 
 ten thousand men who were prepared to know the reason why. Col. J. S. Richardson, 
 in his speech on this occasion, in speaking more particularly to the colored people 
 present, stated that under Republican rule in this State no white man had ever been 
 convicted of murder lor killing one of their color, and asked them for this reason to 
 support the Democrats, saying they could and would protect them from such things. 
 In speaking of ritle-chibs, I would like to state one matter within my knowledge. 
 At the May or January term of court in Marlborough. 1876, a white man by the name 
 of Ross was convicted in court of general sessions for a misdemeanor, but run away 
 before sentence: the judge sealed the sentence and a bench-warrant was issued for 
 defendant and placed in the hands of the sheriff. During the campaign Ross made 
 his appearance in the county and rode in the Hampton procession in Bennettsville, and 
 the sheriff received a note from the county Democratic chairman, advising him not to 
 attempt the arrest on that day, owing to excitement. fcc. Shortly afterward, say 
 week or more, one Powers came to me, snlieitorof the circuit, saying that Ross belonged 
 to tin- same club with him. and that they were determined to protect him and keep 
 him from being arrested or going to jail on the sentence of the court, and he has never 
 been arrested yet. I brought this to the attention of Judge Townsend, the presiding 
 judge of the circuit. 
 
 Larry Aiken. sworn (testifying as to Darlington, page 331) : 
 
 Q. Was the campaign, on the part of the Democrats in this county, conducted peace- 
 ably, or with a great sh;\vof violence ? A. They expected to carry the election with 
 violence, and did appear that they intended to carry the election by storm. The very 
 day a colored man was .shot, on the day General Hampton spoke, and I, as town mar- 
 shal, arrested the man and put him in the gnard-honseand just afterthatup came the 
 whole Hampton cavalry and run another colored man in the gate with pistols pointed 
 at him, and the man was taken out of the guard-house and released, his fine being 
 paid. At Timmonsville I attended both Republican meetings. At the first one I 
 saw about f>(K) armed Democrats with ritleis and bayonets, and we moved from the 
 first place we occupied on account of threats. A joint platform was built by Demo- 
 crats and Republicans, ai.d on the day the Republicans held their meeting they with- 
 drew from the platform on account of threats-. We went away i half a mile and held 
 our meeting. Mr. Whittemore was speaking. Two Democrats cocked their guns to 
 shoot him. an'! they did not shoot him. because my men were there and cocked their 
 guns at them. 
 
 Q. Afterthey had returned to Timmonsville. and found the, Republicans there, did 
 they not make threats and demonstrations of violence there! A. They did. 
 
 Q. On Hampton's day, in the Town of Darlington, about how many armed white 
 mounted men were in the procession ? A. About four hundred armed men on horse- 
 back. 
 
 Q. Do yon know anything as to whether the rifle-club you mentioned of being in 
 the town had rifles or not? A. I know there were rifles here, brought in boxes from 
 the depot by the Democrats and stored in different houses. 
 
 Q. Did you hear any threats dining the campaign from laud-owners as to non- 
 employment, A.M-.. to colored people for voting the Republican ticket ? A. I did; a 
 heap of them. I, for myself, was turned out for voting the Republican ticket. 
 
 Q. Did these threats of turning off those who voted the Republican ticket, and the 
 violence exhibited during the campaign by the rifle-club, cause many Republicans to 
 vote with the Democrats against their wishes? X. 
 
 (Objected to as leading, and as calling for expression of opinion.) 
 
 A. It did. and kept many others from voting; some of them I know by name. 
 
 Cross-examination : 
 
 Q. Do you know of any other Democratic rifle-club except Captain Floyd's? A. I 
 do; all over the county. 
 
 Q. How do you know ? A. As a deputy sheriff, I saw them drilling in different sec- 
 tions of the county. 
 
 Q. Please state where. A. At Ebenezer. at Palmetto, and near Black Creek church. 
 
 Q. Who did yon see at Ebenezer? A. I don't know. 
 
 O. Who at Palmetto? A. Don't know any. 
 
 Q. Who at Black Creek ? A. Don't know'any. 
 
 Q. How do you know they are Democrats? A. Because they were white. 
 
 Q. How were thev armed? A. With guns. 
 
 Q. Can you say that the colored man shot by the white man on Hampton's day 
 Darlington was tired upon on account of his politics? A. I cannot. 
 
 Q. Was the man who was arrested for the shooting drunk? A. No.
 
 280 DIGEST OF ELECTION CASES. 
 
 Q. Was the authority of the marshal interfered with f A. It was. This man was 
 taken from him by the Hampton cavalry and carried to the speaking. 
 
 Q. You have stated in your direct examination that this man's fine was paid and he 
 was released. You now say that he was forcibly taken from the custody of the mar- 
 shal. Explain the matter. A. As soon as the Hampton cavalry found out this man 
 was arrested they came and took him away, and Colonel Law had him put back in 
 the possession of the town council. 
 
 Q. You have said that 500 armed men, Democrats, were at Timmonsville. How 
 many armed Republicans were at Timinoiisville ? A. About two or three hundred. 
 
 Q. On the day of election did you see any of the rifle-clubs, at or near the poll, 
 marching through the town ? 
 
 (Objected to, not being in reply.) 
 
 A. I saw 50 or 60 marching through the town on the day of election, dressed iu red 
 shirts, with a red flannel around their hats, about four or five o'clock in the evening. 
 
 Q. On the day before the election, or for two or three days previously, did you see 
 any red-shirted procession marching about ? 
 
 (Objected to, as not being in reply.) 
 
 A. I did not see any myself, but heard of them. 
 
 LARRY AIKEN. 
 
 Alfred Smith sworn (page 335) : 
 
 Question. Can you mention some demonstrations and incidents that would indicate 
 a show of violence? Answer. At Timniousville, at the first meeting of the campaign, 
 there were about four or five hundred Democrats met at Timniousville for a joint dis- 
 cussion, having heard that the Republicans intended to have a meeting there that day. 
 At first the Republicans of Darlington went to Timmonsville and found that a stand 
 was erected between the Democrats and Republicans. After waiting there for a little 
 while Republicans concluded, by seeing so many armed men come into Timmousville, 
 there would be certainly a row should the Republicans attempt to have a joint discus- 
 sion. On that account the Republicans withdrew a half of a mile and held their meet- 
 ing. About 12 o'clock the meeting was called to order, Jourdau Lang, chairman. After 
 several speakers had spoken, the Democrats sent a committee of five to ask for a division 
 of the time, which oft'er was brought before the people and* voted down. The commit- 
 tee then returned to the Democratic stand and another one was sent to ask whether 
 the Democrats might come and listen to the speeches. This request was granted. The 
 committee returned, and in about one-quarter of an hour about four or five huudred 
 Democrats, armed with rifles, shot-guns, and pistols, mounted and partly on foot, 
 marched up to where we had our meeting. One man had twelve pistols. After the 
 Democrats got near our stand they formed a semicircle. A good many commenced 
 asking questions, interrupting the speaker. At that time B. F. Whitteuiore got upon 
 the stand, and he was insulted. Good many asked him. "Hog, where is that forty-four 
 hundred dollars that you grabbed from this county ? " Whittemore did not reply, and 
 I saw Mr. Heuuegan point a rifle at him, and Puwley told him not to shoot him. Hen- 
 negan replied that we did not come down to shoot. I stepped oft' a little piece, and 
 stood near the man who had the twelve pistols, who said, "I've lost the best chance 
 I ever had to kill the damned hog Whittemore." About that time the chairman an- 
 nounced the meeting adjourned, and said that any one who wished to stay to hear Mr. 
 Richardson could do so. I was about the last to leave for Darlington. A few of the 
 Republicans staid at the stand, but the greater portion of the Republicans left, owing 
 to the fear of being shot down. 
 
 Q. The Democrats that were armed with shot-guns, &c., how were they dressed ? 
 A. They had not any uniforms that time. 
 
 This meeting was September 23, 187G. 
 
 Q. Did you see any riding by men in uniform during the campaign ? A. I seen about 
 2,100 mounted men, in red shirts, with pistols around them, in the town of Darlington, 
 on Hampton's day, the pistols being buckled oil the outside. I don't mean to say that 
 all were uniformed red, but had some kind of a uniform. I was at the stand when 
 General Hampton spoke. While Mr. Richardson, of Sumter, was speaking, a report 
 came to the stand that the colored people and the rifle-clubs were fighting down town. 
 I saw at that time the rifle-clubs formed a circle around the stand, got on their horses, 
 and many of them got guns from buggies; came to town, saying that we are ready 
 for anything; among the men coming from the stand were Preacher Hart. When 
 they came down the marshal had Sidney Kelly, a white Democrat, put in the guard- 
 house for shooting Furman Brown. When they came, a company of cavalry from the 
 stand, rode up in front of tin- guard-house, cocked their guns, and demanded the pris- 
 oner. Tin- prisoner jumped on a horse behind one of the men and went to the Hamp- 
 ton stand. On the day of election I was at Lydia, and nearly every white man come
 
 RICHARDSON VS. RAINEY. 281 
 
 to vote was dressed in a red shirt, red baud 011 his hat, and a great many with pistols 
 buckled on the outside ; and a man with name of Stephan Woodruft' drew and cocked 
 his pistol on me ; he was forcing two or three colored men up to the polls to vote, and 
 I remarked to leave the men uutrammeled, they could vote as they pleased and get 
 their tickets from whom they pleased. He cursed me, saying he would blow out my 
 brains "these men are living on my plantation." I was one of the supervisors at 
 that poll. Simeon Perry, another Democrat, brought four colored men to the polls, 
 and marked their tickets in order to find out from the Democratic managers whether 
 these men voted the Democratic ticket. A colored man came up to vote at the poll, 
 and asked for a Republican ticket, and Sydney Kelly told him, "Here is a Democratic 
 ticket " ; he refused to take it, and a Republican came np with Republican tickets in 
 his hands and offered one to this voter, which he took and voted. After leaving the 
 box, the same man who offered him the Democratic ticket asked him who he voted 
 for, and he said, "Of course I voted for Chamberlain and Hayes," and Sydney Kelly 
 struck him in the mouth. When the counting of the votes began, O. D. Lee exhibited 
 his list he had of colored voters in order to find out how they voted by comparing his 
 list with the marked tickets given colored people to vote by Democrats. Simeon Perry 
 said "Four damn niggers deceived me, for they did not vote the tickets I marked for 
 them." He then said, " They have lost their best friend by telling me a lie." 
 
 Q. On the 4th day of November did you see the Tiinmousville rifle-club come into 
 Darlington ? A. I did see them come in, cheering, yelling ; one man had a gun strapped 
 across his back : saw another one in a wagon ; all members were dressed in red shirts ; 
 nearly all nad pistols strapped around their waists on the outside, and the one in front 
 had tlic gun strapped across hia shoulder. Iwasstandiug in the post-office door look- 
 ing on, and one of them cursed me for a damned Republican son of a bitch. I had not 
 said our word. I saw a wagon in the rear of the procession covered with fodder, said 
 to contain guns; this was the same wagon had the gun exposed with a bayonet fixed; 
 and the same wagon followed the procession on their homeward march, with the fod- 
 der over it. 
 
 Alfred Smith, sworn, continued testifying of a meeting held Novem- 
 ber 4, 1876 : 
 
 Q. Can you specify any ot^her instances of show of violence except the onesyou have 
 already .stated ? A. At the second meeting in Timmousville we met rifle-clubs and 
 men on horseback with rifles strapped around their backs coming to Darlington ; when 
 we got on the other side, six or seven miles from Darlington, we met those men. They 
 cursed Whittemore and Sam Keith. Mr. Morris, the leader, came up and apologized 
 by saying that he did not wish for his men to insult anybody. On arriving in Tim- 
 monsville we found a stand erected. An hour afterward the speaking began, and we 
 did nut have any trouble during the meeting at all ; had a torchlight procession and 
 started for home; and just coming out of Timmousville met the same men, who 
 stopped in the road to prevent us from coming out, and drew their guns and pistols 
 and had on red shirts. I heard a good many of them say they intended to have 
 Hampton and reform, and not a negro should rent a piece of their land. We had, in 
 order to avoid a collision, to take the ditch. Captain Whipper, in charge of the 
 torchlight procession, then requested that they either give away or move, and they 
 would not do either. We went across the ditch over iu the woods, and then the red- 
 shirt men went on home without any trouble. 
 
 Q. Yon know that a large Democratic meeting was held at Darlington thatday, and 
 that distinguished speakers were to address the meeting? A. I do not know, and did 
 not hear ; we met them going to Darlington, and on our way returning. 
 
 Q. How many men did yon meet That morning and in the evening wearing red. 
 shirtsf A. About '200 or 300. 
 
 Q. Can you specify any other show of violence except the ones mentioned ? A. I 
 can't name any others just now. 
 
 Q. You say there were about 400 or 500 Democrats there that day; how many Re- 
 publicans were there on that day ? A. About 200 or 300 were present. 
 
 Q. How many guns did yon see in the party you met returning from Timmonsville 
 to Darlington the second time, at Timmonsville! A. About 35 of the party had im- 
 proved guns and repeaters. 
 
 Q. How many mounted men went up to the Republican stand in the evening? A. 
 About 400 or 500, of which 200 were on horseback. 
 
 Q. Did not these men simply ride up, and ride up to the opposite side of the stand 
 from the militia von spoke of? A. They formed a half ciix-le to the side of the militia, 
 the head of the horses to the stand. 
 
 Q. Did yon hear any of these men make any interruption except a request to be 
 heard ? A. They did. 
 
 Q. What was it? A. I heard a Democrat ask what I stated already in my examina- 
 tion-in-chief. 
 
 Q. Who made use of that remark to Whittemore ? A. I don't know.
 
 282 DIGEST OF ELECTION CASES. 
 
 Q You say Mr. Oliver bad twelve pistols; how did you count them? A. The han- 
 dles were sticking out of the mouth of the bag. 
 
 S. J. Keith sworn (page 345) : 
 
 Q. On the 4th day of November did not the Republicans have another mass meeting 
 at Tiinuionsville? A. We did; it was the last meeting we had; the Democrats also 
 had one at the court-house. While going to Timmonsville we met three clubs on 
 horseback, with red and blue shirts, pistols on the outside of their shirts, and rifles 
 across their backs; before we got to Timmonsville we met another club. I had a 
 wagon, and some of the speakers were with me, Whittemore ; and as they were pass- 
 ing us, one man with the name of Atkinson hallooed out three cheers for Whittemore, 
 the damned old son of a bitch; they cursed every Republican, and would get into a 
 fuss right there, if we had not been'quiet. They yelled and fussed a great deal. We 
 went on to Timmousville ; had a very quiet party, because the Democrats were not there, 
 and the presence of the soldiers had a great deal to do in keeping the peace. We re- 
 mained to have a torchlight procession, and as we were coming near Ragsdale's store, 
 a lot of white men came to my wagon, where Mr. Whittemore was, and cursed him 
 shamefully, and by the time we got into the road leading to Darlington we heard the 
 Democratic band returning from Darlington. We halted, the road being very narrow, 
 that they might go on and pass, for fear of a collision and to avoid trouble ; they in- 
 sisted up*ou turning the street we were on, and make us give way, and wht-n we would 
 not give way they went on ; they turned out of the direct way; after they passed 
 we came home. We had no other trouble except at the places stated. 
 
 Jourdaii Lang (colored) sworn (page 326) : 
 (The meeting was held first part of September.) 
 
 Question. State what occurred at Timmousville. Answer. I was at the meeting at 
 Timmonsville. A platform was erected by Republicans and Democrats. After the 
 Republicans from Darlington got there they split, because it was reported that there 
 would be a fuss, a fight on that day, or confusion, in case that the Republicans relused 
 to have a joint discussion. The Republicans withdrew from the stand, gave it up to 
 the Democrats, and removed to about a half of a mile from there. After we had re- 
 moved, a committee came from the Democrats requesting a joint discussion, which 
 was refused. A committee of five Democrats were then sent to listen at the discussion 
 of the Republicans. 1 was chairman of the Republican meeting after they withdrew 
 from their former place of meeting. After that they sent a committee to ask if they 
 all could come to attend our meeting ; this was also granted. As chairman of the meet- 
 ing I know that this request was granted. They came down mounted ; about four or 
 five hundred, mounted and well armed. Our meeting adjourned about half of an hour 
 after they got there. Mr. Richardson came with them. I was requested to induce Mr. 
 Richardson to speak, but declined, not having any time, having long ways to go ; but. 
 a considerable crowd remained, but not long enough for Mr. Richardson to speak, who 
 did not speak. 
 
 It is most respectfully submitted the evidence establishes General 
 Hampton's supporters had determined from the day of his nomination 
 to elect him by force and extreme violence, if need be. 
 
 The colored people had been lately enfranchised, and were most jeal- 
 ous lest they might lose their liberty, and were watchful of every act 
 on the part of their late masters. 
 
 It is asserted in the majority report the policy of the Hampton can- 
 vass was conciliatory, and resolutions of conventions and public speeches 
 are referred to as proof of the fact. 
 
 We have examined the record with the greatest care for any explana- 
 tion from any stand-point of the armed marauding we have described 
 consistent with a conciliatory policy we feel justified in characterizing 
 as an intimidation policy, coupled with the violence the evidence de- 
 scribes. 
 
 The Democratic committee called upon the supporters of General 
 Hampton to adopt the following pledges : 
 
 SUMTER, S. C., October 25, 1876. 
 
 The Democratic executive committee recommend the adoption of the following 
 pledge : 
 
 J. D. BLANDING, 
 
 Chairman Democratic Executive Committee, 
 A. W. SUPER, Secretary.
 
 RICHARDSON VS. RA1NEY. 283 
 
 THE STATE OK SOUTH CAROLINA : 
 
 We, the undersigned, citizens of Sumter County, hereby pledge ourselves (each for 
 himself) that wo will not assist or extend any favor to any person of either race or 
 color who shall vote for the Republican State or county ticket at the election on 7th 
 November next ; and that we will, in all business transact ions, give the preference to 
 such persons as shall vote the Democratic State and county ticket at said election. 
 
 EXHIBIT A. 
 
 DAKLINGTON COUNTY, Toxnahip: 
 
 We hereby pledge ourselves to each other that we will not rent or let lands or 
 houses, nor advance supplieson credit, to any person who shall vote the Radical ticket 
 at the election to be held on the 7th of November next ; nor will we employ as a 
 mechanic any person who shall so vote at said election, or keep in his employment 
 those who do so vote: nor will we employ in any capacity such persons as may be 
 designated by the executive committee of the Democratic party for this county, in a 
 fist to be furnished by sum committee. This pledge to be of force until Januaiy 1, 
 1878. 
 
 And of which General Hampton said, mildly, "that policy has not my 
 approbation." (P. 249 of Record.) He says he knew of " that policy." 
 He does not say he condemned it; and you fail to find an utterance of 
 his advising otherwise; and in speaking of the " Rifle Clubs," at p. 
 248, he says: "As soon as the proclamation iras issued I advised all the 
 clubs to disband." The majority report abounds with quotations from 
 the evidence of General Hampton and others, all in sympathy with him, 
 judges and sheriffs, that "all was quiet in South Carolina ; " " there were 
 no disturbances." South Carolina was doubtless quiet ; she endured, or 
 enjoyed, as yon please, the quiet of a conquered people, subjected to 
 military rule. She had the pence and order the strong arm of a mili- 
 tary despot may maintain. 
 
 The colored electors were in the majority, and General Hampton must 
 have their votes divided. Prizing their lately acquired freedom, they 
 naturally regarded this " conciliatory policy" as threatening it. Their 
 late masters, in a time of peace, with arms in their hands, were demand- 
 ing their votes for Hampton. They did not say to them, " Except you 
 do this thing we will kill you ;" that was left for inference. They did 
 say to them, "Except you do this thing we will starve you ; we will 
 not give you shelter for your heads ; we. will neither employ you nor rent 
 you land." 
 
 Any race of men, except one subjected to involuntary servitude for 
 ages, would have been frantic with despair, but these mute " hewers 
 of w r ood and drawers of water" prepared to again endure the yoke, or 
 at least make terms with the apparent masters. The armed men could 
 intend nothing but their subjugation ; the pledges not to hire them, or 
 rent them land, threatened them with starvation, yet they were not 
 " unanimous for Hampton." In their churches and by their firesides, 
 out of sight of the "armed bands," they grew strong in thought; and it 
 would seem there must have been in this Congressional district twenty 
 or twenty-five black men, either so ignorant as not to view the situation 
 " as dangerous to their race", or so debased as to be indifferent if they 
 did, or to have been able to read the future with a prophetic eye, and 
 recognize amid all this disturbance Hampton as their prophet and of 
 these men their fellows were intolerant; and the eight hundred pages 
 of evidence disclose that, in a voting population of upwards of 30,000, 
 in 7,500 square miles of territory, twenty colored men had personal 
 altercations, and were threatened with social ostracism if they voted 
 the Democratic ticket; nevertheless, icere not intimidated thereby. One 
 cow-pen was burned; one man had a quarrel with his wife, struck her,
 
 284 DIGEST OF ELECTION CASES. 
 
 and was abandoned by her ; she had left him twice before ; and one man 
 was struck in the face by a woman, armed with an umbrella. (See Rec- 
 ord, p. 87.) 
 
 Areas of 'the counties embraced in the first district. 
 
 Chesterfield. .. ....... .. 
 
 Square miles 
 879 
 
 Darlino'ton . ............ 
 
 873 
 
 Georgetown 
 
 888 
 
 Horrv 
 
 1,082 
 
 Marion 
 
 1,219 
 
 Marlborough ..... 
 
 546 
 
 Sumter 
 
 953 
 
 Willianisbur r . . . 
 
 1,062 
 
 Total 7,502 
 
 There is nothing in the record to show either social ostracism or fear 
 was preventing the colored voters from supporting Hampton. On the 
 contrary, the " policy" we have described, according to the evidence of 
 General Hampton, according to all the witnesses called by the contest- 
 ant, according to the majority report, was "conciliating" them and 
 the'y were promising to support the Democratic candidates until Gov- 
 ernor Chamberlain's proclamation appeared. 
 
 It is true there were some members of the State militia still in pos- 
 session of State arms, but there is nothing in the case evidencing an 
 improper use of them, 
 
 We submit there is nothing in this case to justify the expulsion of 
 Mr, Eainey upon the score of intimidation or social ostracism. 
 
 We subjoin a table of the voting population of the first Congressional 
 district, taken from the census of 1875, showing 
 
 White voters 1 14, 147 
 
 Colored voters 20,473 
 
 Aggregate 34, 620 
 
 Majority colored voters 6, 326 
 
 Rainey's (Republican) vote was 18, 103 
 
 Richardson's (Democrat) vote was 16, 575 
 
 Aggregate 34,678 
 
 The vote verifies the census. Rainey's majority was 1,528, showing 
 Richardson must have received 4,798, nearly one-fifth of the colored vote, 
 demonstrating it was not operated upon, either by fear of violence or 
 social ostracism among themselves, to vote for Mr. Rainey. 
 
 Voters over 21 years of age. 
 
 Counties. 
 
 White. 
 
 Black. 
 
 Chesterfield 
 
 1 543 
 
 1,199 
 
 Darlington 
 
 2 362 
 
 3,747 
 
 Georgetown 
 
 643 
 
 V 3, 119 
 
 Horry 
 
 1 696 
 
 712 
 
 Marion 
 
 3 081 
 
 2 833 
 
 Marlborongh 
 
 1 583 
 
 1 925 
 
 Su lilt IT 
 
 1 827 
 
 4 362 
 
 Williamsburg 
 
 1 412 
 
 2 576 
 
 
 
 
 Total . . . 
 
 14 147 
 
 20, 473 
 
 

 
 RICHARDSON VS. RAINEY. 285 
 
 As to the second point, intimidation by the Federal troops : 
 
 It is not claimed that the troops coerced, intimidated, or persuaded ; 
 that an officer or soldier did or said aught indicating a personal prefer- 
 ence for one side or the other. 
 
 They were stationed, usually, so far as the evidence discloses, out of 
 sight, and in no case immediately at the polls ; 250 or 400 yards are 
 given as their nearest approach to the polls. 
 
 An officer and twenty-nine men were divided between Suinter Court- 
 House and Lynchburgh, places 10 miles apart, in Sumter County. 
 
 (Miarles H. Morse (evidence at page 90 of the record) : 
 
 Q. 14. Where were the United States troops stationed in this county ; nearest to 
 what polls, and how near to the polls? Were any of the United States troops at or 
 near the polls on the day of the election? A. A small detachment of United States 
 troops, under Major Kelley. arrived in this town a few days before the election, and 
 went away a few days after the election. They were encamped east of the railroad 
 depot, about half a mile from the polls. They did not appear at or near the polls on 
 the day of the election. 
 
 Wilder (pages 31, 32) : 
 
 Q. How many soldiers were there in the county of Sumter ? A. About fifteen pri- 
 vates and two officers, at Sumter Court-House. At Lyuchburgh there were one lieuten- 
 ant and about ten men, brought from Timmonsville ; and I heard Mr. Wells say he 
 brought them there ; in all about twenty-nine men. 
 
 An officer and fifty-six men were in Darlington County. 
 (See evidence as to Timmonsville.) 
 Culpeper (157, 158) : 
 
 Q. When were United States troops sent into the county! A. They arrived here 
 on Friday night, November 3, and left about one week after the election; 56 men in 
 all came 'here ; 25 or 30 remained during the election, several squads having been sent 
 off to Darlington, Florence, and Lyuchburgh. 
 
 Timmousville, Darlington, and Florence are in Darlington County, 
 and the twenty-five or thirty men were divided between those points, 
 or ten miles apart. 
 
 So far as the record shows, the foregoing discloses the troops in the 
 first Congressional district, comprising the counties of Chesterfield, 
 Marlborough, Darlington, Sumter, Marion, Horry, Williamsburgh, and 
 Georgetown. 
 
 The Constitution, section 4, article 1, provide?, in reference to the 
 election of Kepresentatives to Congress 
 
 But Congress may at any time by law make or alter such regulations. 
 
 The attention of the House has in so marked a manner and so recently, 
 in the Dean-Field case, been called to the legislation upon the subject 
 of Congressional elections as to render quotations from the laws upon 
 that subject hardly necessary ; but see General Statutes: 
 
 SKC. 5506. Every person who, by any unlawful means, hinders, delays, prevents, or 
 obstructs, or combines and confederates with others to hinder, delay, prevent, or ob- 
 struct, any citizen from doing any act required to be done to qualify him to vote, or 
 from voting, at any election, in any State, Territory, district, county, city, parish, 
 Township, school district, municipality, or other territorial subdivision, shall be fined 
 not less than five hundred dollars, or be imprisoned not less than one month nor more 
 than one year, or be punished by both such fine and imprisonment. 
 
 SEC. 5507. Every person who prevents, hinders, controls, or intimidates another from 
 exercising or in exercising the rights of suffrage, to whom that right is guaranteed by 
 the fifteenth amendment to the Constitution of the United States, by means of bribery 
 or threats of depriving such person of employment or occupation, or of ejecting such 
 person from a rented house, lauds, or other property, or by threats of refusing to renew 
 leases or contracts for labor, or by threats of violence to himself or family, shall be 
 punished as provided in the preceding section. 
 
 The last clause of section 8 of article 1 of the Constitution gives Con-
 
 286 DIGEST OF ELECTION CASES. 
 
 gress the power " to make all laws which shall be necessary and proper 
 for carrying into execution the foregoing powers, and all powers vested 
 by this Constitution in the Government of the United States, or any 
 department or officer thereof." 
 
 The last clause of section 3 of article li, speaking of the President, 
 says: 
 
 He shall take care that the laws be faithfully executed. 
 
 Section 4 of article 4 is : 
 
 The United States shall guarantee to every State in this Union a republican form of 
 government, and shall protect each of them against invasion ; and on application of 
 the legislature or of the executive thereof (when the legislature cannot be convened) 
 against domestic violence. 
 
 In pursuance of the foregoing provisions of the Constitution, in pur- 
 suance of the highest law, both to an individual and a government, of 
 self preservation, Congress has enacted section 5297. 
 
 SEC. 5297. In case of an insurrection in any State against the government thereof, 
 it shall be lawful for the President, on application of the legislature of such State, or 
 of the executive when the legislature cannot be convened, to call forth such number 
 of the militia of any other State or States, which may be applied for, as he deems suf- 
 ficient to suppress such insurrection, or, on like application, to employ for the same 
 purposes such part of the land or naval forces of the United States as lie deems neces- 
 sary. 
 
 SEC. 5298. Whenever, by reason of unlawful obstructions, combinations, or assem- 
 blages of persons, or rebellion against the authority of the United States, it shall be- 
 come impracticable, in the judgment of the President, toenforce, by the ordinary course 
 of judicial proceedings, the laws of the United States, within any State or Territory, 
 it shall be lawful for the President to call forth the militia of any or all of the States, 
 and to employ such parts of the land and naval forces of the United States as he may 
 deem necessary to enforce the faithful execution of the laws of the United States, or 
 to suppress such rebellion in whatever State or Territory thereof the lawn of the 
 United States may be forcibly opposed, or the execution thereof forcibly obstructed. 
 
 "SEC. 5^99. Whenever insurrection, domestic violence, unlawful combinations, or con- 
 spiracies in any State so obstructs or hinders the execution of the laws thereof, and of 
 the United States, as to deprive any portion or classof the peopleof such State of any 
 of the rights, privileges, or immunities, or protection named in the Constitution and 
 secured by the laws for the protection of snch rights, privileges, or immunities, and 
 the constituted authorities of such State are unable to protect, or, from any cause, fail 
 in or refuse protection of the people in such righte, such facts shall be deemed a denial 
 by snch State of the equal protection of the laws to which they are entitled under the 
 Constitution of the United States ; and in all such cases, or whenever any such insur- 
 rection, violence, unlawful combination, or conspiracy, opposes or obstructs the laws 
 of the United States, or the due execution thereof, or impedes or obstructs the due 
 eourse of justice under the same, it shall be lawful for the President, and it shall be 
 his duty, to take snch measures, by the employment of the militia or the land and 
 naval forces of the United States, or of either, or by other means, a.s he may deem 
 necessary, for the suppression of snch insurrection, domestic violence, or combinations. 
 
 SEC. 5300. Whenever, in the judgment of the President, it become* necessary to use 
 the military forces tinder this title, the President shall forthwith, by proclamation, 
 command the insurgents to disperse and retire peaceably to their rcsjiective abodes 
 within a limited time. 
 
 ]So question is made but flu- proper proclamation was made by Gov- 
 ernor Chamberlain, the proper call upon the President, and the proper 
 proclamation issued by the Federal Government. 
 
 It has not been claimed the legislature of the State of South Caro- 
 lina might have been convened to take appropriate action in reference 
 to the disorders we have referred to. It has not been claimed disorders 
 did not exist. On the contrary, the majority report asserts so great was 
 the terrorism exercised by the majority of the colored people as to pre- 
 vent the exercise of the elective franchise by the minority. Arms are 
 alleged in their hands lor improper uses. That we expressly deny. NVt 
 have mildly depicted from our stand-point the utter perversion of a free 
 popular government by the Hampton party, a condition of terrorism
 
 RICHARDSON VS. RAISEY. 287 
 
 and violence without parallel in any land under a constitutional govern- 
 ment. 
 
 Grant the premises of either report, grant the existence of evidence 
 fairly tending to show the same, the governor of South Carolina was 
 called to act judicially in appealing to the United States Government 
 for aid. 
 
 The majority report fails to suggest he acted corruptly. Called upon, 
 the President of the United States had but one duty to perform assign 
 the forces at his disposal to the police duty of preserving order. 
 
 The citizen was not to be influenced in the exercise of his personal 
 rights by that police force, and he was to be protected in that exercise. 
 
 We do not insist the President acted ministerially. He acted judi- 
 cially, and in the exercise of a wise discretion, in the light of the evidence 
 submitted to him. 
 
 As we have already stated, it is not alleged the soldiers did anything 
 to influence the election, that is, committed any overt act. Located as 
 aforesaid, it appears they were silent and passive spectators of the 
 scenes, without expressing preference in the result of the election. And 
 it is claimed these men coerced the colored voters to a support of the 
 Republican ticket. 
 
 We grant their presence emboldened the theretofore despairing black 
 man to dare to exercise a freedman's right and vote his choice. 
 
 The majority report advises us there was no violence before the troops- 
 came. We grant there was none, because terrorism had stamped out 
 resistance, threatened starvation had crushed the souls of these men r 
 and when the Federal soldiers appeared upon the scene, and it was un- 
 derstood the rifle-clubs and saber-clubs, while they would valiantly 
 frighten negroes, did not want a conflict with Federal authorities, we 
 assert, these freedmen to a great extent took courage to enjoy their 
 highest privilege and right. 
 
 The proposition of the majority is, a police force detailed by the Fed- 
 eral authorities, that simply enables the citizen to enjoy his rights, is 
 illegal, and renders that enjoyment illegal and void. 
 
 The proposition of the majority is, that a community terrorized into 
 a course of involuntary action, or subjugated to the extent of being 
 unable, through fear of violence, to take their lawful part in an election, 
 if from the presence of troops they are relieved of their apprehension,, 
 and exercise their rights as electors, such exercise is illegal and void. 
 
 Another novel proposition is introduced into this case. Governor 
 Hampton swears, with others, that they were told (the colored men 
 were told) the troops were placed there to make them vote the Repub- 
 lican ticker, and on this, solely, is based the idea of coercion. It does 
 not appear the colored voters believed it. 
 
 It does not appear any' responsible person told them so. It does not 
 appear, in fact, any considerable number were told thus. It was a rumor 
 that reached the ears of the witnesses. The fact doubtless is they be- 
 lieved the troops were sent there to enable them to vote the Republican 
 can ticket if they desired to. But one fact stands out clear in the case, 
 the colored population was not operated upon by fear of the soldiers. 
 The fact is manifest the only effect of the troops upon the freedmeu was 
 to give them confidence to vote the ticket of their choice. 
 
 The report discusses the English law in % regard to the presence of 
 troops, and fails to discover the dissimilarity of the governments, in the 
 case of the United States, justifies the legislation authorizing the use of 
 troops as a police force even at an election ; in the case of England, calls 
 for legislation prohibiting such use.
 
 288 DIGEST OF ELECTION CASES. 
 
 Here the government is of the people, and a free and fair election is 
 an absolute necessity to give a lawful government ; in England the 
 executive branch of the government is, or was at the time of the en- 
 actment of the law cited, a privileged class, and to the end the people 
 might not be encroached upon by the Crown, we find the rule and the 
 legislation referred to prohibiting the presence of troops. 
 
 In the judgment of the undersigned, the action of the Federal Govern- 
 ment was justified, and incumbent upon it, in stationing the troops as it 
 did in South Carolina ; that nothing in the conduct of the troops, neither 
 did the fact of their being stationed there, influence the electors to vote 
 otherwise than as their judgments and consciences dictated ; but to the 
 contrary, the action of the Federal Government and the presence of the 
 troops enabled the freedmen to participate in the election and vote for 
 the candidates they preferred ; and at this time, removed from the elec- 
 tion, we trust a great political party will not deem it proper to expel 
 from the House a Representative reflecting honor upon his race and 
 creditably representing his constituency for that action on the part of 
 the General Government the impartial observer cannot but justify. 
 
 Inferentially, at least, the report of the majority denies the right of 
 the General Government, upon the call of the State, as provided by 
 Federal laws, under any conceivable state of facts, through the aid of 
 the Army as a police force, to protect the elector in his right of fran- 
 chise at a Congressional or electoral election. With that view we have 
 no sympathy. We directly affirm the contrary right. The question 
 has been involved directly in the successful efforts of the nation to main- 
 tain our nationality from dismemberment, and all the States are now 
 represented here because of the firm establishment of the principle by 
 the highest power to which the contending parties could appeal. The 
 denial of the " authority " here will neither weaken nor disturb the 
 "judgment " which has been " given" by the people ; and we doubt not, 
 in the future, the Government will protect the citizen in the full en- 
 joyment of his right of suffrage, by whichever party it may be adminis- 
 tered. And we submit it is most unprofitable to enter a useless and 
 feeble protest, which only avails to serve a temporary purpose. 
 
 The undersigned recommends the passage of the following resolution: 
 
 Resolved^ Joseph H. Kainey was duly elected and is entitled to a seat 
 in the House as the Eepreseutative in Congress from the first Congres- 
 sional district in the State of South Carolina. 
 
 FRANK HISCOCK. 
 

 
 FROST VS. METCALFE. 289 
 
 R. GRAHAM FROST vs. LYNE S. METCALFE. 
 
 THIED CONGRESSIONAL DISTRICT OF MISSOURI. 
 
 Charges of illegal voting, and that votes were cast for contestant and not counted, 
 misconduct of the officers of election, and that numerous persons were appointed 
 United States marshals solely as a bribe for their vote for contestee. 
 
 Held, That if is presumed that the officers of election did their duty, and it would be 
 dangerous to permit the solemn act of sworn officers of the law to be set aside by 
 the testimony in this case : and it would be still more dangerous after it was 
 known that ten or twenty votes would change the result of an election to permit 
 the officers to recall their proceedings and make a change which would reverse 
 the result of the election. 
 
 Contestant is entitled to the benefit of votes offered for him, but which were rejected 
 by reason of the votei's name not being on the poll-books, but which was on the 
 registration list. 
 
 Congress can go behind all returns, but to authorize the House to. count a vote four 
 thiugs are requisite : First, the person offering to vote must have been a legal 
 voter : second, he must have offered to vote; third, it must have been rejected; 
 and, fourth, it must be shown for whom he intended to vote. 
 
 As to the use of 7^8 deputy marshals, the committee cannot make any estimate from 
 conjecture how inanyvoters they changed by their conduct; nor would it be safe 
 or warranted that the parties alleged to have been bribed would have voted the 
 other way. 
 
 The House adopted the report February 25, 1879. 
 
 FEBRUARY 25. 1879. Mr. JOHN T. HARRIS, from the Committee of 
 Elections, submitted the following 
 
 R E POUT: 
 
 Your committee having had under consideration the foregoing case 
 beg leave to submit that by the legal authority of the State of Missouri 
 the vote between these parties stands thus: 
 
 Metcalfe. 8,099 
 
 1-Yost 8,080 
 
 19 
 
 giving to the sitting member a majority of 19 votes, to overcome which 
 the contestant claims there should be deducted from contestee the fol- 
 lowing votes : 
 
 First. Proof of six illegal vote> < -a-t for" Metcalfe by negroes who were not resi- 
 <!ents of the State of Missouri. 
 
 Second. By proof of two illegal votes cast for Metcalfe by parties not qualified to 
 vote at said election in said district. 
 
 Third. By proof of twelve votes of duly registered and qualified voters whose votes 
 wen- legally offered lor Mr. Frost, but were placed in an envelope and received but 
 not counted. 
 
 Fourth. By proof of a mistake made by the judges and clerks of election precinct 
 No. 6;{ in their returns, giving to said Metcalfe iiiue more votes than had actually 
 been cast for him at said poll. 
 H. Mis. r,s 1;.
 
 290 DIGEST OF ELECTION CASES. 
 
 Fifth. By proof of twenty-five more votes being counted at precinct No 77 for said 
 Metcalfe than had actually been thus cast for him. 
 
 Sixth. By proof that the conduct of judges and United States supervisors and mar- 
 shals at said precinct No. 77, in handling and tampering with the ballots and the tal- 
 lies, tainted The return from that poll with fraud, and rendered the result so uncer- 
 tain that said poll must be wholly rejected. 
 
 Seventh. By proof of the fact that the United States marshals were appointed an 1 
 stationed in said third Congressional district to the number of 7 - 28. That said mar- 
 shals were wholly unnecessary and were appointed solely for the purpose and in 
 number sufficient to make reasonably certain the election of Metcalfe. 
 
 Eighth. That the money promised them by the Government was used simply as a 
 bribe for votes for Metcalfe. That many of them were Democrats, who, to obtain the 
 position, were compelled to promise and pledge that they would vote for Lyne S. 
 Metcalfe. 
 
 Your committee have carefully examined these reasons in the order in 
 which they are stated by contestant. 
 
 First. They do not regard the proof as sufficient to show that the six 
 votes in question were not legal voters. It wholly fails to show that 
 the residence of these colored men was not at their place of voting. 
 Neither does the evidence show that they voted for contestee. It would 
 be a dangerous doctrine to the right of election to permit the solemn 
 act of the sworn officers of the law to be set aside upon such testimony. 
 It is to be presumed that they did their duty. A majority were of the 
 same politics of the contestant, ami the evidence shows they sought to 
 be watchful and careful in the discharge of their duty. It may be, and 
 often is, difficult to determine the home or domicile of a boatman, or 
 one who is constantly engaged in steamboating or on railroads, but as 
 the law contemplates every man has a domicile or residence, it is often 
 only known to the party himself. It is a question of intent, known 
 alone to the party. It is to be presumed* the election officers sifted 
 these voters and came to correct conclusions. The evidence is not suffi- 
 cient to show they did not. 
 
 The next point in order relied on by the contestant is, that twelve 
 legal votes were cast for Frost and not counted. In considering this 
 question we shall not review what has been said in contestant's brief 
 or in contestee's brief in regard to the manner in whu;h the registration 
 lists were reprinted. The evidence shows conclusively that there were 
 mistakes made in the reprinting, and that names were indiscriminately 
 left off of the printed list furnished the judges which were on the orig- 
 inal registration lists. It is not denied that any man whose name was 
 on the original registration-list was entitled to vote, notwithstanding 
 the fact his name might have been left off of the reprinted lists. It has 
 been amply shown in the testimony that these omissions were the re- 
 sult of the hurry and confusion of the reprinting. If contestant had 
 proved that any man's vote was rejected by reason of his name not be- 
 ing on the poll-books, whose name was on the registration lint, and that 
 his vote was offered for him and not counted, then he is entitled to the 
 benefit of it. 
 
 Your committee have examined the evidence with groat care in re- 
 gard to these twelve votes. It is too voluminous to copy in this report. 
 It is sufficient, therefore, to give the result of their investigation, which 
 is, that the evidence does show that A. It. Hynson and August Lamj- 
 sing were legal voters at precinct (>o ; that they voted for Frost, and that 
 their votes were not counted. In the other cases, to wit, of Dempsy 
 Xasli, Oolonav, Amend, Welch, Dunn, Carroll, Godde. Kennedy, 
 and Willow, the evidence fails to show that the votes were not counted, 
 or that they were properly registered, or that under the laws of Mis- 
 souri they were entitled to vote. The testimony tends in that direction, 
 but is not of that character, clear and conclusive, which ought to over-
 
 FROST VS. METCALFE. 291 
 
 ride the sworn act of the officers of the law, whose duty it was on that 
 day, then and there, to make all those inquiries and form a correct 
 judgment. The law presumes they did. 
 
 While on this branch of the subject your committee will dispose of 
 the complaint made by contestant that by reason of the errors in copy- 
 ing the registration list he lost many more votes than coutestee. To 
 count votes which were never offered at any poll is carrying the doc- 
 trine further than we ever knew it. To authorize this committee to 
 count a vote, four things are requisite : first the person offering to vote 
 must have been a legal voter at the place it ottered to vote ; second, he 
 must have offered his vote; third, it must have been rejected; and 
 fourth, it must be shown for whom he offered to vote. These requires 
 do not exist in these cases, therefore your committee will not further 
 consider them. 
 
 Fourth. Contestant complains that there was an error against him 
 of 9 votes by the figure 1 being placed in the wrong column on the 
 memorandum kept by the clerk in the counting of the votes. This 
 error, if error it was, was not discovered for five days after the elec- 
 tion, but that fact would not operate here, as Congress can go be- 
 hind all returns. The real question is, was it an error? There is no 
 evidence except the paper itself. It is found five days after the election, 
 by a gentleman who kept the paper from which the result was announced, 
 that, in the column second from the right, the figure 1 stands alone. 
 From this it is inferred that it was intended for 1. All the witnesses 
 testily that they have no recollection on the subject. They only take it 
 to be an error because they find the unit figure in the ten column. As 
 a would not count in the last column, it is suggested to the witnesses 
 that in the hurry of recording the count it might have been deemed by 
 the clerk unnecessary to add it. We are then left to other facts to deter- 
 mine whether this was an error or not. The papers and officers of elec- 
 tion wholly fail to give any explanation except as stated. After the 
 polls were closed and the result ascertained, the duly authorized officers 
 foot up the result, announce it, and make due certification and return 
 thereof to the proper officer. It would be a dangerous precedent, after 
 it were known that ten or twenty votes would change the result of an 
 election, to permit the officers to recall their proceedings and make a 
 change which would reverse the result of the election. 
 
 But whatever the result would be, if there were manifest error, it 
 ought to be corrected by the officers or the House. The aggregate vote 
 for President at that place was 375 ; for governor, 370 ; for Congress, 
 371. This corresponding vote for the highest political officers, your 
 committee feel, tends strongly to show that there was no error in the 
 count, and that the certification of the officers of election was correct. 
 
 Fifth. Contestant claims an error of 25 votes at precinct No. 77, in 
 this, that 25 votes were counted ticice for Metcalfe. 
 
 The only witness on this point is a Mr. Wortman, a deputy United 
 States marshal, who says " twenty five" was called out for Metcalfe 
 and recorded; that it was repeated, "twenty-five" for Metcalfe, and 
 the clerk seemed to be writing; and Furgerson, who was also a deputy 
 United States marshal, says "twenty-five" was called out twice for 
 Metcalfe, and that when the attention of the clerk was called to it, the 
 latter told the witness to " Shut your mouth ; there is a supervisor here 
 to attend to that' 1 ; and Mr. Schwaner said he would attend to that. 
 And they further prove that Dejong, the Democratic clerk, said "If 
 you fellows will keep your mouths snut we will get along a heap bet- 
 ter," and he added, "Too much confusion here."
 
 292 DIGEST OF ELECTION CASES. 
 
 When we remember that a majority of the judges of election ami clerk 
 were Democrats whose integrity has not been questioned, it would be 
 past comprehension to suppose they made a mistake against their polit- 
 cal friend of twenty-five votes by one dash of the pen when their atten- 
 tion was called to it at the time. 
 
 The failure of contestant to call these officers of election must 1 it- 
 construed against him. Dejoug, a Democrat, and the very clerk who 
 kept the tally, in an affidavit on page 65 says when this second call of 
 twenty-five was made he asked. u; Is this the same twenty-five just called 
 by the judge and in confirmation or not?' 1 was answered it was the 
 same twenty-five, and in consequence it was not again entered on the 
 tally-sheet by me nor counted a second time." 
 
 Contestant objects to this affidavit as not being regularly in the case. 
 That may be, but it may serve to give the reason why contestant did 
 not call affiant. The contestant having failed to call Dejoug and the 
 other officers of election, the law presumes they would testify to the cor- 
 rectness of their proceedings if they had been called, therefore lie is not 
 injured by the affidavit. 
 
 At this" place Metcalfe ran about 2.3 votes ahead of his ticket, just 25 
 ahead of the Presidential electors, and 21 ahead of the Republican can- 
 didate for governor, while Mr. Frost ran just 20 behind the Democratic 
 electors, and 25 behind the Democratic candidate for governor. The 
 aggregate vote for President was 926 ; for governor, 934 ; for Congress, 
 as counted, 931. 
 
 The testimony tends to show that Mr. Metcalfe ran ahead of his ticket 
 and Mr. Frost behind his. The number of officers to be elected was very 
 great, and the record shows that the aggregate vote for Congress is not 
 as large as the whole vote polled. The poll-books were examined by 
 Mr. Walsh, a witness for contestant, who is asked the question : 
 
 Is there anything in those figures [alluding to the vote received by the various can- 
 didates for office] to indicate that 25 votes were counted for Metcalfe twice f 
 Answer. I do not see anything here. 
 
 Taking all the evidence to be true as given, there is nothing in it to 
 prove that 25 votes were counted twice for Metcalfe, and thus invalidate 
 a return made by officers, a majority of whom are of contestant's politi- 
 cal party. 
 
 Sixth. The contestant asks that the whole poll at No. 77 be set aside 
 and discarded, because the return was tainted with fraud by handling 
 and tampering with the ballots and tallies. 
 
 The only evidence on this subject is given by the deputy United States 
 marshal, Wortman. The contestant does not call any of the judges or 
 officers conducting the election, a majority of whom were Democrats, to 
 sustain this charge. As before said, the law presumes public officers 
 did their duty. The returns are in due form, and were duly counted. 
 According to the showing of this witness, the falling out of the ballots 
 was purely accidental. Then why not have called some of the ofii 
 to prove these facts if they existed ? The failure to call them raises the 
 presumption that they would not sustain the charge. They do not oc- 
 cupy the position of parties charged with fraud testifying in their own 
 behalf, but they are presumed to be impartial and disinterested, or, if 
 paitial, a majority of them are presumed to lean towards contestant, 
 therefore would have been willing to tell the truth in his behalf. 
 
 To set aside a formal and regular return made by sworn officers of 
 both political parties, upon such evidence, would set a dangerous pre- 
 cedent, and render popular elections but a name and a mockery.
 
 FF.OST VS. METCALFE. 293 
 
 Seventh ami eighth, in regard to the appointment of United States 
 marshals, may be treated together. 
 
 Your committee deprecate the appointment of United States marshals 
 under any pretext. If they are intended as conservators of the peace, 
 the power of the State is ample for that purpose. If they are in any 
 manner to interfere in the elections, it is clearly a violation of the laws 
 of the States for them to do so. Bat the law of the United States war- 
 rants the appointment of deputy marshals, and the same must -be respected 
 until altered or repealed. It does not limit the number. The question 
 in this case is, was the conduct of the marshals such as to invalidate the 
 whole election * It cannot with any strong reason be urged that this 
 committee shall make an estimate from conjecture how many voters they 
 changed by their conduct. Nor would it be safe or warranted that the 
 parties alleged to have been bribed, would, but for such bribe, have 
 voted the other way. If the conduct of these deputy marshals was such 
 as to pollute the whole vote of the district, then the committee could not 
 sift the good from the bad voters and declare a result, but would be 
 compelled to find there had been no fair expression of the popular will, 
 and that no legal election had been held. 
 
 The Testimony of the witnesses called by the contestant to prove 
 bribery and fraud on the part of those marshals is very vague and un- 
 satisfactory. Some eight were introduced, who do prove that they were 
 appointed with the promise expressed or implied that they would vote 
 for Metcalfe, but five admit they voted for Frost ; two say they voted for 
 Metcalfe, but they preferred him, and were in no way influenced by the 
 office. One did not vote at all. So that the evidence, so far as it goes, 
 tends to repel the presumption that the 728 deputy marshals were in- 
 fluenced in their votes by reason of their appointments. To say the 
 least of it, the testimony is not very reliable, coming as it does from 
 men who confess their own abasement and degradation. 
 
 There is nothing in this evidence that would justify your committee 
 in transferring any votes from Metcalfe to Frost or deducting any from 
 "Metcalfe, much less would it justify them in setting aside the whole 
 election. 
 
 Your committee having carefully examined all the questions raised in, 
 this case, can see no reason why the sitting member should be unseated ; 
 therefore they recommend the adoption of the following resolutions, to 
 wit: 
 
 Resolved, TJiat E. Graham Frost was not elected a member of the 
 Forty-fifth Congress, and is not entitled to a seat in the House of Repre- 
 sentatives from the third Congressional district of Missouri. 
 
 Resolved. That Lyne S. Metcalfe was elected a member of the Forty- 
 fifth Congress, and is entitled to a seat in the House of Representatives 
 from the third Congressional district of Missouri. 
 
 JOHN T. HARRIS. 
 
 JACOB TURNEY. 
 
 THOS. E. COBB. 
 
 MILTON A. CANDLER. 
 
 JEEE. N. WILLIAMS. 
 
 E. JNO. ELLIS. 
 We concur in conclusion. 
 
 FRANK HISCOCK. 
 
 JNO. T. WAIT. 
 
 -I. M. THORNBURGH. 
 
 H. PRICE.
 
 FORTY-SIXTH CONGRESS 
 
 COMMITTEE ON ELECTIONS. 
 
 William M. Springer, of Illinois. 
 Van H. Manning, of Mississippi. 
 Emory Speer, of Georgia. 
 Walpole G. Colerick, of Indiana. 
 R. F. Armfield, of North Carolina. 
 Frank E. Beltzhoover, of Pennsylvania. 
 Samuel L. Sawyer, of Missouri. 
 Elijah C. Phister, of Kentucky. 
 
 J. Warren Keifer, of Ohio. 
 John H. Camp, of New York. 
 William H. Calkins, of Indiana. 
 Walbridge A. Field, of Massachusetts. 
 Edward Overtoil, jr., of Pennsylvania. 
 James B. Weaver, of Iowa. 
 Alvah A. Clark, of New Jersey. 
 
 8. M. ETTKR, Clerk.
 
 FORTY -SIXTH CONGRESS. 
 
 JOHN M. BRADLEY vs. WILLIAM F. SI/EMOXS. 
 
 SECOND CONGRESSIONAL DISTRICT OF ARKANSAS. 
 
 Contestant took some portion of his testimony more than forty days after service of 
 contestee's answer, but within forty days of the date when he commenced taking 
 testimony, when contestant claims the time commenced to run. 
 
 Held, That the time when contestant may take testimony-in-chief commences to run 
 from the date of service of answer of coutestee upon him. The law furnishes each 
 party ample opportunity for taking testimony if ordinary diligence is used. 
 
 The result of an election can in no manner be aifected by the failure of certain town- 
 ships in the district to hold an election where no reason is assigned and shown for 
 the failure to hold such election. 
 
 The circulation of false and fraudulent posters a few days before an election announc- 
 ing another person as the candidate of a party for Congress, and intended to de- 
 ceive the voters of that party, and lessen the vote which would otherwise have 
 been cast for contestant is dishonorable, and if the evidence established the com- 
 plicity of contestee, and its effect upon the voters produced a result different 
 from that which otherwise would have occurred, the election should be set aside 
 and a new one ordered. 
 
 The House adopted the majority report March 31, 1880. 
 
 MARCH 8, 1880. Mr. SAWYER, from the Committee on Elections, sub- 
 mitted the following 
 
 REPORT: 
 
 The Committee on Elections, to whom was referred the contested-election case 
 of John M. Bradley vs. William F. Slemons, from the se.o.id Cmiyres- 
 sional district of Arkansas, having had the same under consideration, beg 
 leave to report : 
 
 The claim of the contestant to the seat occupied by the returned mem- 
 ber is based upon a variety of alleged grounds, many of which are en- 
 tirely unsupported by any testimony whatever. Before commencing 
 the discussion of the merits of the controversy, we d,eein it proper to 
 express our disapproval of that portion of contestee's answer to contest- 
 ant's notice of contest which indulges in personalities. The practice 
 itself is unbecoming the dignity of the House, and we regret the neces- 
 sity has arisen of imposing on the committee the duty of calling atten- 
 tion to the subject. 
 
 The Congressional district is composed of twenty counties, in only 
 three of which was testimony taken, viz, in the counties of Jefferson, 
 Chicot, and Hempstead, and at the very threshold of our inquiry we are
 
 BRADLEY VS. SLEMONS. 297 
 
 met with an objection by the contestee to the consideration of any por- 
 tion of the evidence taken hy the contestant in the counties of Obieot 
 and Hempstead, for the reason that the forty days allowed by law to 
 contestant in which to take testimom -in-chief had expired before the 
 taking of evidence in said Chicot and Hempstead Counties commenced. 
 
 Protests of contestee were duly entered on the record against the 
 taking- of such testimony. Contestant, however, contends that, as he 
 commenced taking testimony on the l s ih day of February, 1879, the 
 forty days allowed him commenced running from that day, and this view, 
 if correct, will entitle him to the benefit of the testimony taken in those 
 two counties. 
 
 Section 107 of the lie vised. Statutes provides that the time allowed 
 for taking testimony shall be ninety days, and it shall be taken in the 
 following order : The contestant shall take testimony during the first 
 forty days, the returned member during the next forty days, and the 
 contestant may take testimony in rebuttal only daring the remaining ten 
 days of said period. 
 
 in order to settle definitely from what time the forty days allowed to 
 contestant in which to take his testiuiouy-iu-chief should begin to run, 
 it is provided by the act of Congress upon the subject of contested 
 elections, approved March 2, 187.1, that secti-m 107 shall be so construed 
 as to require that, in all cases of contested elections, the testimony shall 
 be taken within ninety days from the day on which the answer of the 
 returned member is served upon the contestant. (Statutes 1873, chap. 
 119, section 18. p. 338.) 
 
 The answer of contestee to contestant's notice of contest was served 
 on contestant on the 20th day of January, 187D (page 6). The time r 
 then, for taking contestant's testimony-in chief expired on the 10th day 
 of March following. The taking of testimony by him in Chicot and 
 Hempstead Counties was commenced in Chicot County on the 20th day 
 of March, ten days after the expiration of the time allowed to him, and 
 was closed in Ilempstead County on the 28th day of March. The pro- 
 visions of the statutes referred to cannot be disregarded, and contest- 
 ant, without leave of the House, was unauthorized to take further tes- 
 timony-in-cliief after the 10th day of March, when his time for that 
 purpose expired. 
 
 The law is intended to. and does, furnish each party ample opportu- 
 nity for taking testimony, if ordinary diligence is used; and especially 
 is this the case, when it is considered that a party may take testimony 
 at two or more places on the same day. This wise provision of the law 
 furnishes a strong reason against an extension of time in ordinary cases 
 like the present. (Boles r$. Edwards, second session Forty-fifth Con- 
 gress ; Vallandigham rx. Campbell, Thirty-fifth Congress; Carrigan vs. 
 Thayer, Thirty-eighth Congress.) 
 
 Xo application was made to the House by contestant for an extension 
 of time, and the question is now clearly presented whether, without any 
 cause whatever being shown therefor, the testimony thus taken out of 
 time shall be admitted and considered. Another important fact may 
 be considered in this connection. It appears from an examination of 
 the record of the testimony that the time actually consumed by con- 
 testant in taking the entire testimony returned, including that taken 
 beyond the time allowed by law, was only eighteen days; thus estab- 
 lishing the fact beyond controversy that he could, by the use of ordinary 
 diligence, have taken the entire testimony within the time allowed him 
 by law without trespassing upon the time allowed to contestee. In view 
 of these facts, no reason exists why the committee should consider the
 
 298 DIGEST OF ELECTION CASES. 
 
 testimony taken in Chicot and Heinpstead Counties, or should recom- 
 mend that it be considered by the House. 
 
 The first point made by contestant is, in effect, that a corrupt con- 
 spiracy was formed and partially carried into effect, by the friends of the 
 sitting member, to regulate and control the election in Jefferson County, 
 at least, in his interest, regardless of the provisions of the laws of Ar- 
 kansas regulating elections. As preliminary to an examination of the 
 testimony upon this point, and as incidentally connected therewith, it 
 may be proper to remark that the evidence clearly discloses the follow- 
 ing facts: 
 
 For the purpose of correcting abuses which had prevailed in the ad- 
 ministration of public affairs in Jefferson County in the summer of 1878 
 and several weeks prior to the election for county officers, which was 
 "held on the 8th day of September of that year, two months prior to the 
 Congressional election, several prominent men of both political parties 
 held conferences at different times and places with a view of presenting 
 to the people for their suffrages a county ticket composed of candidates 
 from each party best qualified for the several positions to be filled, and 
 who would not be objectionable to either, which was termed a compro- 
 mise ticket. These conferences were held, as the testimony discloses, 
 solely with reference to a county ticket ; no allusion whatever being 
 made to the Congressional race. Indeed, no portion of the entire evi- 
 dence refers, even remotely, to any other than the candidates for county 
 offices, nor does it appear that the Democratic Congressional convention 
 had then been held. 
 
 The result of these several conferences was, a compromise ticket was 
 presented to the county conventions of the two parties and finally nom- 
 inated by each, although not with entire unanimity. An anti-compro- 
 mise ticket was also nominated, also composed of candidates from each 
 party. The result of the election was in favor of the compromise ticket. 
 (See pages 60, 62, 63, 66, 70, 76, and 80). 
 
 To return to the evidence in the record bearing upon the alleged con- 
 spiracy under consideration, we find that upon cross-examination of 
 George Haycock, a witness for the sitting member, he is questioned par- 
 ticularly in regard to the authenticity of Exhibit A, which is attached 
 to his deposition, and which exhibit is as follows : 
 
 Exhibit A, referred to in George Haycock's deposition. F. J. Wine. N. P. 
 
 HOW THE SALE WAS MADE. 
 
 Colonel HAYCOCK. Well, gentlemen, under the benign influence of this back room 
 of a bar-room, we have grave matters of state to settle, and they must be handled 
 with the skill of a diplomat and the courage of a Ca?sar, Major Newman, or of Gen- 
 eral Grant. 
 
 Colonel CLAYTON. Well put in; a good amendment. 
 
 General PORTIS. This plan may require both the skill of (he politician and the 
 bravery of a soldier, and Colonel Corcoran and I only promise the latter. As to pull- 
 ing the wires, you gentlemen must do that. 
 
 Colonel PRIGMORE. Well, by God, I don't propose to have any lighting in mine, but 
 if you want any plans carried out in a dexterous way, any midnight watching done, 
 I am your man. 
 
 Colonel WHITE. Well, I want this thing done as near by tin- statute as we can. 
 But if there must be a break over, and we, as high contracting firms, make agreement 
 to that end, then we must stand to each other. 
 
 Colonel HAYCOCK. Here is my hand on that. [They shake.] 
 
 Colonel CLAYTON. And mine. 
 
 Colonel PuKiMuiiK. And mine. 
 
 General 1'ouns. And mine. 
 
 Major NKWMAN. And mine, and my dainty little foot, too, and my heart, too. 
 [They all shake and pull Newman's big toe.]
 
 BRADLEY VS. SLEMONS. 299 
 
 Colonel HAYCOCK. Well, there need not be much talk about it. Colonel Clayton, 
 Prigmore, and Judge Silvemian here know the negro is not reliable ; that we can't 
 trust him. His vote costs more than the office is worth. We want to devise some 
 plan to get what offices we do get for less price. It is business with us. The truth 
 is, the devils should never have, been allowed to vote anyway. Of course, I could not 
 toll them so, but you all know it is HO. Now, take Dawson and Paul Jackoand Fred. 
 Harris; they are the most intelligent of any of them, and they are no more tit to fill 
 office than a Hottentot. We have let them till office because we had to keep them in 
 good humor, but if you Democrats will staiid up to us, not another negro shall ever 
 hold an office in this county. 
 
 (reneral POKTIS. But can you ail control the negroes ? Won't they run a ticket of 
 their. own ? 
 
 Judge SILVKRMAX. Oh, they are. just like so many cattle ; take the herders away 
 and they will stray off everywhere. The white Radicals have kept them headed to- 
 gether. But as soon as we quit leading, they are done for. You know that I am going 
 to Markas; I have got my pay to resign ; and you Democrats can pur a man in my 
 place to handle the returns, to fix up the townships, and appoint your kind of judges, 
 and then you have got them. 
 
 Colonel WHITE. But what are you going to do with Hugh Kenyon, Suyder, Judge 
 Rice, and Vaughn? 
 
 Colonel HAYCOCK. Snyder is a mere wind bladder, a gas pipe, a blow hard, a mere 
 I'.vgmy ; when Clayton and Prigmoreaud myself take our support from him he will go 
 to the devil. 
 
 Colonel CLAYTON. I think so. He has certainly got more pay from the Republican 
 party for less work than any man in it. 
 
 Colonel HAYCOCK. And as to Kenyou, we had to drop him last election because he 
 did not subserve the best party purpose. Rice and Vaughn are old party hacks, per- 
 fectly played out ; and none of them can control a negro. 
 
 Judge SIL\ HUMAN. Can you all manage your side of the house? 
 
 Major NEWMAN. You bet. They will do anything General Portis, Colonel White, 
 and myself say. The whole country people look to us to lead them ; they have not 
 enough to lead themselves; they don't know anything about politics; they 
 would vote for Ben. Butler if we were to tell them to. 
 
 Colonel WHITE. Well, that is perhaps putting it too strong; but they will do most 
 anything we tell them They look to Pine Bluff for advice, and we have got the prin- 
 cipal men here to advise them when they go to them to accept it, and we will see 
 Jackman. and Regan, and Bronson, and Oliver, and men like them from the country 
 when they come to town and have them fixed up right, and it will all go right. We 
 can bamboozle them. 
 
 Colonel HAYCOCK. Well, now, how shall we do it? Let us proceed to business. 
 Let us have an understanding. 
 
 Colonel PKU;MOKK. I want for my part to keep my office. That is what I want to 
 trade for. I want to still be circuit clerk. 
 
 Colonel CLAYTON. Yes ; and I want to keep my office. I have got a good thing if 
 I can keep it. 
 
 Colonel HAYCOCK. I am postmaster, and that is all I want. But I want you all to 
 promise me not to try to have me removed. 
 
 Major NEWMAN. I want to go to senate; and I think I am the best man in the 
 county for that place. I can help you all, and besides I will give dignity to the place. 
 
 Colonel HAYCOCK. Not more than I did. 
 
 Major NEWMAN. Beg your pardon ; I did not intend to reflect upon you. 
 
 . Well. I want Areh. Nevins to be county clerk, and Willis Johnson 
 
 county judge. This will tix things just like, we want them. 
 
 General'PoRTis. Then I want the balance of the offices for the Democrats. 
 
 Colonel CLAYTON. That is all right. Except township offices; let them take care 
 of themselves. 
 
 General POUTIS. Boys, I'll tell you one unruly cuss ; that is John Ellis; and Burton, 
 aud Dave Robinson, and George Robinson, and a few more are about as bad. 
 
 Colonel HAYCOCK. Pshaw ! They are not a bit in the way. We will make them 
 do just what we say. We can buy either of them for a five-dollar note. 
 
 Colonel CLAYTON. Now. we can get our convention to adopt this, and if we can't v,c 
 will have to nominate Prigmore and myself first, and then we will break it up in an 
 Lour. 
 
 COMMITTEK. How about the German element ? It might make them mad to be left 
 out. 
 
 Major NEWMAN. D u the Dutch ! Sam Franklin is talked of for the senate, but, 
 
 pshaw, you don't suppose he can cope with me ; besides, the Dutch ain't honest enough 
 to be officers. I'll manage that. 
 
 Colonel HAYCOCK. So we all agree. Now, when shall it be carried out? 
 
 General POUTIS. Next Monday let us all go to Little Rock and have Johnson ap- 
 pointed. Silvermau's resignation accepted, and then it will all be fix- d.
 
 300 DIGEST OF ELECTION CASES. 
 
 Colonel WHITE. I can't go. 
 
 Colonel CLAYTON. Nor I ; I can't leave court. 
 
 General PORTIS. Then Major Newman, Colonel Haycock, Judge Silvenuan, ami 
 myself will go. 
 
 Major NEWMAN. That will do. That is just it. 
 
 The conclave disbanded, the party went to Little Bock ; Silveruian resigned, John- 
 son was appointed, and now the property is ready to be delivered. 
 
 RECAI*ITULATION. 
 
 Major NEWMAN. I am a politician; must win, no matter how; can't lail: Potter 
 investigation notwithstanding. 
 
 General PORTIS. Hold on, boys; by God, we had better see these fellows from the 
 county about this thing. But never mind, go on now (got the judge, that much 
 made). 
 
 Colonel CLAYTON. Now. gentlemen, we are men of honor; none of this must be 
 divulged. I don't want the office longer than one more term. I don't believe in 
 negro officers; the white people ought to rule. (To Prigmore.) We are inseparable, 
 and this is our last chauce. (Prigmore to Clayton.) Yes: that's so; and. John, I 
 haven't had the office but ten years. 
 
 Colonel WHITE. Since d n this thing. I believe I'll wait till the people have A 
 
 chance to say something about it. 
 
 Colonel HAYCOCK. Well, here now; it's all settled. 
 
 The entire testimony relied on by contestant in support of the truth 
 of the statements contained in the above exhibit is contained in the 
 cross-examination of George Haycock, and is as follows (pages 82 
 and 83): 
 
 Q. Did yon. or these Republicans with whom you talked and were co-operating 
 in this matter, have any conferences with the Democrats mentioned in connection 
 with the compromise ticket ? A. Yes; we had several talks about it with one an- 
 other at different times and places. Sometimes at the court-house ; at the clerk's 
 office ; in the rear room of Mr. Ray's saloon ; also at Judge Silvermau's; but all these 
 talks, as far as the compromise measure was concerned, was about the county officers 
 of the county. 
 
 Q. Was not the main object of this measure to defeat what you call the color line 
 in connection with the county officers? A. As far HS defeating the color line was 
 concerned it was not, for we did not intend to defeat any one as far as color was con- 
 cerned, but to elect men who were honest and capable of filling positions. 
 
 Q. You speak of several meetings and conferences which y..u had in connection with 
 compromise, one of which you mentioned was in the back room of A. Ray's business 
 house; what kind of a business house is that ? A. It is a saloon in front and a res- 
 taurant in the rear. 
 
 Q. Who was present at that meeting ? A. John M. Clayton, G. W. Prigmore, Judge 
 F. Silverman, W. N. Portis, George Haycock, being mvself, C. G. Newman, H. Kiug 
 White, N. T. White. 
 
 Q. When was that meeting held? A. I think it was held a month or a month I 
 a half previous to the election. 
 
 Q. Who was the county judge at that time ? A. I think Judge Silverman was; it 
 was about the time he was talking about resigning on account of receiving an ap- 
 pointment as consul. 
 
 Q. Please designate which of those named above were Democrats and which Re- 
 publicans? A. John M. Clayton, G. W. Prigmore, Judge Silverman, and myself were 
 Republicans, and W. N. Fortis, C. S. Newman, H. King White, and N. T. White were 
 Democrats. 
 
 Q. Please state if the paper here presented to yon, entitled "How the sale was 
 made," and which I now annex to your deposition, and marked "Exhibit D." is not 
 a correct statement of the conference and meeting referred to in the back room or 
 restaurant of A. Ray, and does it not substantially s-t forth the spirit, sentiment, 
 language, and results of the said meeting or conference ? A. There is not a par.iclo 
 of truth in it, and it was gotten np as a burlesque. 
 
 Q. Do you know how it was gotten up? A. I do not know how it was g;>:tvn np, 
 but I know it is uutrue as to all the sayings. 
 
 Q. Were not all the parties named in this paper as engaging in it present at this 
 meeting? A. They were all there. 
 
 Q. Did not Judge Silverman resign at that time or immediately after? A. He re- 
 signed about that tiiiu\ 
 
 Q. Did not General Portis, Major Newman. Judge Silverman, and yourself go to 
 Little Rock a few days after that conference ? A. We did.
 
 BRADLEY VS. SLEMOXS. 301 
 
 Q. Was not that a part of the agreement at that conference, that you should go? 
 A. Xo, sir. 
 
 Q. Was it not stated then and there that you would go ? A. Judge Silvernian had 
 been saying for two or three \veek> prior to that meeting that he must resign to accept 
 the appointment, and wished me to go with him when he went to Little Kock to ten- 
 der his resignation to the governor : it was talked about in the meeting as to his res- 
 ignation, but that was left to himself. If he did resign I wanted Judge Johnson ap- 
 pointed. 
 
 Q. Why did (Jeneral Port is and Major Newman go? A. Because they wanted Judge 
 Johnson appointed. 
 
 Q. Was that understood at that meeting? A. Nothing more than if Siivermau was 
 determined to resigu they would use their influence for Judge Johnson. 
 
 Q. I understand you to say that yourself, Major Newman, General Port is, Judge 
 Silverman, all went to Little Rock to get Silverman's re.-ignation accepted, and have 
 Judge Johnson appointed county judge. Did you four gentlemen not go to the gov- 
 ernor and get Judge Silvermau's resignation accepted and have Judge Johusou ap- 
 pointed ? A. We did. 
 
 (^. Were not certain men designated for the different county offices in that meet- 
 ing f A. They were not. 
 
 (.}.. Were they not suggested ? A. Quite a number of names were mentioned, but 
 no conclusion come to : the main object was to put Republicans on the ticket that 
 were not obnoxious to the Democrats, and those Democratic candidates who were not 
 obnoxious to the Republicans. 
 
 Q. Was not the name of W. D. Johnson suggested for county judge and Arch. 
 Nevin as county clerk . ; A. \V. 1). Johnson was mentioned by some of the Repub- 
 licans. Mr. Henry Young was mentioned by other Republicans as lieing the man 
 who would not be obnoxious to them, and Nevin's name and Mr. Cunie's name was 
 mentioned, and some others whom I do not recollect, but no conclusion was ar- 
 rived at. 
 
 It will thus be seen that the evidence relied upon to establish the 
 truth of the statements contained in Exhibit A clearly proves their 
 falsity, and, in connection with the entire evidence, shows that the sev- 
 eral meetings and conferences alluded to were held s.olely for the purpose 
 of reforming abuses and preventing corruptions which had previously 
 existed in the administration of county affairs, and, it may be added, 
 the evidence snws the final result to have been beneficial to the people 
 of Jefferson CoGoty, in the election of officers who were honest and ca- 
 pable (page 04). 
 
 Objection is also made by contestant to the manner of opening the 
 polls in Yaugine Township, the election of judges in place of those who 
 were absent (one, as alleged, not being present at tin time of the elec- 
 tion), intimidation of voters, and the manner of counting the votes. 
 These charges thus grouped together are evidently made, not for the 
 purpose of having the election iu that township set aside (for contestant 
 notwithstanding, it may be safely inferred, received a majority of the 
 votes cast), but to lay the foundation for a claim that an additional 
 number of votes should be counted for him. In support of these charges 
 contestant relies upon the testimony of A. A. Rogers, which is as fol- 
 lo\vs : 
 
 <}. State what you know of the manner of conducting the said election in Yaugiue 
 Township, in this county. A. I was in the court yard, where the election of said 
 township was held, early in the morning of that election day, and saw that then- was 
 :i reeling of intimidation among many of those whom I met upon the streets, caused 
 in part, as 1 supposed, by the a-.-n-st of a United States supervisor of election in an ad- 
 joining township, who was under arrest and in the hands of an officer upon or near 
 the couit-yard. Colonel Bradley and myself inquired into the cause of the arrest, and 
 receiving no satisfactory answer, repaired to the oitice of the magistrate who we un- 
 derstood had issued the warrant, accompanied by the constable and the party arrested, 
 and demanded a trial; this was refused; bail was ottered, and it, too, refused; then, 
 returning to the court-yard, the hour for opening the election having arrived, we 
 -ought entrance to the court-house door where the election was to be held and found 
 the door locked: we were followed closely hy a leading Democrat; we then went to 
 the clerk's otlice and found it also locked; after an interval of twenty iniuutrs, per- 
 haps, we returned to the door of the court-house and found it atill locked ; met a voter
 
 302 DIGEST OF ELECTION CASES. 
 
 inquiring if the polls were open ; he retired ; we then went to the clerk's otliee. 
 the deputy clerk just entering the door, and asked him where the poll-books were, 
 and it' he did not intend to hold an election; the same leading Democrat alluded to> 
 following close behind, and demanded to know what right we had to poll-books. I 
 said none, but simply wanted to know if they intended to open the polls and hold the 
 election. The sheriff said that he had given the poll-books the, day before to the 
 judges of the election, and that he did not know where the judges were, and upon in- 
 quiring from others I was told the judges had left town. 
 
 I then repaired to my store; got pen, ink, and paper for both this and the other 
 voting precinct in the city; returned to the court-house and found u table where the 
 election was ordinarily held ; returned to get a lawyer to see that the heading to the 
 poll-books was properly made, officers duly sworn, &c., intending te> have an election, 
 but upon returning found that the opposite party had met and elected officers, and 
 were proceeding to hold the election, all the officers being political friends, as 1 be- 
 lieve, of Mr. Slemous. One of the judges elected wa> not a bystander, but was elected 
 and sent for, as he afterwards told me. The election was proceeded with. I was in 
 the court-yard nearly the whole day, and was conversant with what transpired. The 
 election, in my judgment, was -not a fiee or fair one. Under pretense of carrying a. 
 certain license question, Bradley tickets, having neither license or no license upon 
 them, and the major portion of Slemons's friends being for license, the Bradley ticket* 
 in the bunds of several colored voters were taken under the pretense of writing li- 
 cense under them, and instead of making this pretended change the name of John 
 At. Bradley was scratched and the name of W. F. Slemous .substituted To this I 
 called attention. On one occasion, whilst standing at the ballot-box and giving a 
 Bradley ticket to a colored friend who asked for it, he handed the ticket to one of the 
 judges, but before it fairly passed out of his hands a deputy sheriff put a Slemons 
 ticket in the hands of the judge, took the Bradley ticket, and the judge put the 
 Slemons ticket in the box. .My attention being called to this, I fook down the name 
 of the deputy sheriff; and seeing me writing he announced his name and told me to- 
 write it down. 
 
 About noon, or a little after, several men who appeared in the court-yard, friends 
 of Colonel Slemons, and in a very boisterous manner ridiculed and abused Bradley : 
 changing from that, in a boisterous way claiming to be friendly to Bradley with a 
 view, as I verily believed, to drive from the support of Bradley a large number of 
 colored voters upon the street who had not voted. Later, an as-ault was made upon 
 Bradley directly by one of the political leaders of Mr. Slemons, backed by the deputy 
 sheriffs, as I could see, and others, the friends of Mr. Slemons; and a general out- 
 break was imminent, and but for the coolness, forbearance, ptudeuce, and courage 
 of Colonel Bradley and his friends, who counseled peace, there- jain Id have been a. 
 serious difficulty, such was the feeling of those engaged. Some (JDt'olonel Slcmon-'* 
 friends interfered also in behalf of law and order, and the matter ended. Pending: 
 this many of Bradley's friends, tearing trouble, left the court-yard without voting. 
 Just before the pollsclosed at this precinct Colonel Bradley and 1 repaired t<> the other 
 voting-precinct in the city to inquire of the vote at that point, and were met, as we 
 thought, in an insulting way by one of the judges, whereupon we left. During the 
 entire day there seemed to be a disposition to override and carry the day without re- 
 gard to the manner of doing it. Further, there was, as 1 conceived, a disposition on 
 the part of the judges to unnecessarily question colored voters about their ages and 
 their means of knowledge, even in the presence of their fathers, who said they \\ern 
 voters, and were willing to swear it, and by this course a number were rejected aud 
 denied a vote. A few djtys after the election a conversation with one of the judges 
 of the election held at the court-house box in this township, a per.-onal friend of 
 Colonel Bradley and myself, was had, in which said judge of the election stated that 
 they, the judges, took the ballot-box from the court-house, where the vote was east, 
 to the law office of Met. F. Jones, a political friend of Colonel Slemons, where the vote 
 was counted in the manner following, to wit: each one of the judges took out a hand- 
 ful of ballots from the box and laid them before them ou the table where the ballot- 
 box rested and counted by hundreds, and then required the clerks to tally by the 
 hundred according to the count of each judge, and so on until they were through. 
 
 To disprove the evidence of Mr. Rogers coutestee offers the tt 
 inony of W. N. Portis aud George \V. I'ligmore. 31r. 1'ortis (payes DO 
 and Ul) states : 
 
 About 8 o'clock in the morning on the day of election there was a considerable 
 
 i a.-M-mbled in irout of The c<mrt-house waiting for the polls to be opened. A-' 
 but one of the judges who presided at the September election had made his appear- 
 ance, it becan;' tyto elect two more. They w. -re elected from the ci-owii 
 it at the court-house. Mr. Sam Franklin was one. and a Mr. <'. W. Powell was 
 the other, who were both present at the time of their election. Then the polls were
 
 BRADLEY VS. SLEMONS. 303 
 
 opened in regular form and the balloting commenced. As soon as the court-house 
 ]>olls were opened we proceeded r<> tin- lower poll in 1'ine IJhitf, aud two of the regu- 
 lar judges being absent, two judges were eieeted from the bystanders. Mr. Thomas 
 Meiicehee was one, : I do not reme.mber the other. Mr. M. K. Hunter was the regular 
 judge present, both polls being opened in an orderly and quiet niauner. 
 
 Question. What have you 10 say as to the conduct of the election on that day as to 
 its fairness or unfairness f Answer. It was a fair election as fur as I observed. I saw 
 no one prohibited from voting on that day that was entitled to a vote. 
 
 (,>. What evidence, of intimidation did you see ,' A. None. 
 
 George W. Prigmore (page 68) says : 
 
 It was the most orderly election in Pine Hluff 1 have >een for seven or eight years ; 
 less confusion about the polls. SU-moiis's Democi atie friends seemed lo lie taking con- 
 siderable interest. I saw no one taking any active interest for Hradley except him- 
 self, Mr. Rogers, aud perhaps two or three colored men. 
 
 An examination of the testimony adduced by contestant upon these 
 points exhibits a failure to specify tacts tending to prove the charges 
 alleged, except, perhaps, that portion which relates to the fraudulent 
 changing of a ticket of a colored voter by a Mr. Helz tin, which is flatly 
 contradicted by him (page 1)3), and that portion which relates to an as- 
 sault made on contestant by Mr. \V. X. Portis. A reference to the tes- 
 timony of Mr. Portis (page 01) will show that the assault was made iu 
 consequence of insulting language used by contestant towards Mr. Por- 
 tis, and that the next morning contestant, upon reflection, acknowledged 
 himself in fault, and apologized for his conduct. As to the manner of 
 counting the votes in Vaugiue Township, it will be observed that the 
 only evidence on thai point is that of a single witness, whose testimony 
 is strictly hearsay, and which has been too often decided inadmissible to 
 be now considered an open question. Besides, the ballots are required 
 by the constitution of Arkansas to be numbered, and the number re 
 corded on the list of voters, which are still in the custody of the clerk of 
 the county court, in whose charge they are placed by law, after being 
 securely enveloped aud sealed, and there they are required to remain 
 four years unopened except in case of a contested election (constitu- 
 tion of Arkansas, article 3, section o ; Statutes of Arkansas, "act pro- 
 viding a general election law," page 100, section 45, page 109, section 
 01). One of the poll-books is required to be securely enveloped and 
 sealed by the judges of the election precinct, and delivered to the clerk 
 of the county court ; the other is left in the custody of the judges, free 
 for the inspection of all persons (sections 42 and 43). It will thus be 
 seen that every facility is afforded by law for the inspection of the poll- 
 books and the examination of ballots, and a fraudulent count could 
 easily have been detected and proven. 
 
 The same act, section 5, provides : 
 
 If the court shall fail to fix a place at which elections are to be held in any town 
 ship, or to appoint judges of elections, or those appointed fail to act, it shall be the 
 duty of the sheriff to l\\ a place for holding the election ; and the voters when assem- 
 bled may appoint the judges, who shall, in all respects, perform the duties of judges 
 of election required by I; 
 
 It thus appear that the judges were appointed according to law; that 
 there was no serious, if any, intimidation. The polls were opened and 
 the election conducted with fairness and pursuant to law. So far as 
 the testimony shows, there was no unfairness in counting the vote. 
 These being the most essential requisites of a fair election, no cause 
 thus far exists Vor interfering with the vote of Vaugine Township. 
 
 Another charge is that the ballot-boxes in Pine Bluff aud other pre- 
 cincts in Jefferson County were stuffed by the friends of coutestee, aud
 
 304 DIGEST OF ELECTION CASES. 
 
 thus a much larger vote was counted for him than he actually received. 
 In support of this charge the testimony of Daniel 31. Robinson is relied 
 upon, which we deem proper to insert in full. His testimony upon that 
 subject is as follows : 
 
 DAN*. M. ROBIXSOX, a witness produced and sworn, testifies as follows : 
 
 Question. What is your name, age, residence, and occupation ? Answer. My name 
 is Dan. M. Robinson; am aged twenty-four years; reside in Pine Bluff, and am a 
 printer. 
 
 Q. How long have you resided in the city of Pine Bluff, in the county of Jefferson, 
 Arkansas f A. About sixteen years. 
 
 Q. In what busines.- were you engaged in the month of November, 1878, and on the 
 5th day of that month, the day of the last Congressional election f A. I was working 
 in the Press office of Major Newman, in Pine Bluff, commonly known as the news- 
 paper office of the Pine Bluff Frees; was working as a printer on that day. 
 
 Q. State whether or not you know of any election tickets having been printed at 
 that office on that day with the name of W. F. Siemens thereon for Congress of this 
 district? A. Yes, sir. 
 
 Q. Give as near as you can the words printed on those tickets. A. To the best of 
 my recollection it was this: "For Congress in the second district, Hon. W. F. Sle- 
 inons. Against license." 
 
 Q. How many of those tickets were printed? A. There were between three and 
 four thousand. 
 
 Q. At what time during that day were those tickets printed? A. Those I saw 
 were printed between half-past 5 and 6 o'clock in the evening of that day. 
 
 Q. Do you know who got said tickets from the printing office f A. I can't viv. I 
 saw Col. George Haycock. Maj. W. N. Portis folding up some of the tickets on the 
 press. 
 
 Q. State all you know about the printing and distribution of those tickets, A. At 
 that time I was working for Major Newman in the Pine Bluff Press office. He gave 
 uie a ticket to set up the ticket I have above described: I worked off one thousand 
 and was sent to the rear of the office by Mr. Ryan, the foreman of the Press office. 
 Markey Burnatt took my place at the job-press where the tickets were being printed. 
 
 Q. How long did Marcus Burnatt work at the printing of said tickets? A. I left 
 at 6 o'clock p. in., and he was still working there. 
 
 Q. Where is Marcus Buruatt now? A. I think he is in Philadelphia, Pa. 
 
 Q. Do you know who brought, the job in question to the office, and who corrected 
 the proof? A. I don't know who brought the job to the office, but Major Portis and 
 Col. George Haycock corrected the proof. 
 
 Q. Did you leave said printing office, and Burnatt engaged in printing said tickets, 
 before or after sundown of that day ? A. After sundown. 
 
 Q. Kate whether or no the parties, to wit, George Haycock and W. N. Portis. were 
 folding up some .of the tickets alluded to above before or after sundown ? A. After 
 sundown, just as I was leaving the office. 
 
 Q. State, if you know, who the said George. Haycock and W. N. Portis supported in 
 the said Congressional election. A. I can only say that according to my best belief 
 that they supported W. F. Siemens. 
 
 Q. Can you give the politics of the Pine Bluff Press? A. Democratic at the mast- 
 head. 
 
 Q. Do you know of any circulars having been printed at that office within four 
 weeks previous to the date last mentioned, which circulars announced John A. Will- 
 iams as a candidate for Congress from this district at said election ? A. I do not, sir. 
 
 Q. Did you see W. F. Siemens at the Press office at any time within a week or two 
 before the election .' A. Yes, sir ; I saw him there probably a half dozen times. 
 
 Cross-examined by Col. MET. L. JOXK- : 
 
 (,). Who put you on the job of printing those tickets on the f>th of November, 
 1*7- .'A. Maj. C. G. Newman. 
 
 Q. What directions did he give you ? A. None at all, only to set up the job. 
 
 Q. Who was in the office while you were <etting the job up ? A. The regular men 
 who worked there. 
 
 Q. Please name them. A. Sam Ryan, Arthur Murray, Marcus Bernath, Joe Markum, 
 Ambrose- Lynn. 
 
 Q. Did these men. including Mr. Ryan, the foreman, know that you were setting 
 up this job ? A. Don't know whether they did or not ; suppose Mr. Ryan did. 
 
 (,'. \Vas it regarded as a confidential job '. A. All jobs are confidential when not 
 otherwise ordered in a printing office. 
 
 Q. Was this job put under any particular secret i:;>Tiu<-tio:is .'A. Not that I kuow 
 of ouiy the secrets that bind us together.
 
 BRADLEY VS. SLEMONS. 305 
 
 
 
 Q. At what time was that job brought to the office f A. It was brought there sorno 
 time about 1 or 2 o'clock. 
 
 Q. Who brought it ? A. Can't tell you, sir. 
 
 Q. To whom was the job delivered ? A. Don't kuow, sir. 
 
 Q. How do you know when it was brought ? A. Major Newman handed it to me. 
 
 Q. What directions did he give you ? A. He told me to set the job np. 
 
 Q. Did he say when he wanted it finished ? A. Said he wanted it done some time 
 that evening. 
 
 Q. What time did you set it up *. A. About 4 o'clock. 
 
 Q. What time did Haycock and Portia read the proof? A. As I was going out the 
 back door. I think it was a quarter or half past 4 o'clock. 
 
 Q. Did you come back after you went out of the back door? A. Yes, sir. 
 
 Q. How many of these tickets did you strike oft ? A. A thousand. 
 
 Q. Where did you go then ? A. Went in the back part of the office. 
 
 Q. What did you do there? A. Set up some time type for the paper, cleaned up 
 " pi," and two or three more things. 
 
 Q. Where did you go. then? A. Then I went home, out of the front door. 
 
 Q. What time did you go home ? A. Six o'clock. 
 
 Q. Where were the tickets when you went home? A. Part of them were laying on 
 the press, and the boys were printing them when I went home. 
 
 Q. How many were worked oft' when you left ? A. About a thousand. 
 
 Q. Did you see anything more of the tickets? A. No, air. 
 
 Q. What had you been doing before youwent to the Press office ? A. Cau't tell you, 
 sir. About three weeks before that I had been working at the Republican office. 
 
 Q. What was the politics of the Republican office ? A. Independent Greenback. 
 
 Q. What was your politics? A. Democratic. 
 
 Q. Did you not go to Little Rork in July as ;i representative from Jefferson County 
 to a supposed Greenback convention ? A. I did not. 
 
 Q. Did you go to Hot Springs as such ? A. I did not. I went to the press conven- 
 tion, and in company with Major Newman, who was editor of the Pine Bluff Press, 
 who was and is a Democrat. 
 
 Q. While at Little Rock, was there a Greenback meeting held? A. Not to my 
 knowledge. 
 
 Q. Did you send John M. Bradley the following telegram, to wit : " Greenback con- 
 vention harmonious, and all for you " ? 
 
 (This question was objected to by E. W. Martin, for contestant, upon the gounds 
 of irrelevancy and not responsive to the exami nation-in-chief, but does not object to 
 ita being answered.) 
 
 A. I did not. 
 
 Q. Who did the Republican office support for Congress ? A. John M. Bradley. 
 
 Q. Whose election did you advocate ? A. I did not advocate anybody. I voted for 
 W. F. Siemens. 
 
 Q. Have you any knowledge to what use these tickets were put? A. No personal 
 knowledge. 
 
 Q. Do you know that they were ever taken from the office ? A. I do not. 
 
 Q. Do you know for what purpose they were ordered ? A. I do not. 
 
 Q. Was the Press office being run on the day of the election ? A. I think it was. 
 
 Q. Are you sure that Ryan, vhe foreman, knew of the printing of those tickets t 
 A. I suppose he did. He was around there and saw me setting them up. 
 
 Q. Are you sure that Major Newman gave you the job ? A. I have already testified 
 to that fact. 
 
 Q. Are you sure that Haycock and Portis read the proof? A. Only this: They said 
 it was all right. They were standing over the job after some of them were struck off, 
 when they said " It is all right." 
 
 The foregoing testimony of Mr. Robinson is all that is oft'ered by con- 
 testant in support of the charge under consideration. 
 
 George Haycock, one of the persons mentioned by Mr. Robinson in 
 his testimony as engaged in correcting the proof and folding the tickets 
 as late as half past 4 or a quarter past 4, testifies as follows : 
 
 Q. I see in the testimony of Dan M. Robinson, examined for contestant, that he 
 alludes to a ticket transaction, and says that you had connection with it. I will read 
 you a copy of his testimony to see what you have to say about it. (Contestee here 
 read copy of his testimony. ) 
 
 (Question objected to by attorney for contestant for the reason that this mode of 
 examination is conceived to be improper.) 
 
 A. The morning of the election, after the polls had opened, I discovered the ticket* 
 of Mr. Slemons had not printed on them "for or against license." I went to General 
 
 H. Mis. 58 20
 
 306 DIGEST OF ELECTION CASES. 
 
 
 
 Portis, as I understood he had charge of Colonel Sleinons's tickets for distribution, and 
 asked him if he would have any objection to having printed on them, or getting out 
 other tickets for Slemous with the words "for license" printed on them, if we de- 
 frayed the expense of the same. I then went to Mr. Ray and Mr. O'Connell and Mr. 
 Brockway, and they contributed money to have some tickets struck off. I then went 
 up to the* printing office and had a number stricken otf. I never handled or dis- 
 tributed any of the tickets. Parties wanting tickets of that kind during the day I 
 sent them to the printing office for them. I also got a few slips printed with the 
 words "for license'' on them, to be pasted on the tickets that had not these words 
 upon them. I was not at the printing office or near the printing office after 3 o'clock 
 in the afternoon. 
 
 Q. Do you know what time these tickets were printed ? A. I went to the printing 
 office between 9 and 10 o'clock in the morning, and ordered the tickets printed. I 
 went back between 10 and 11 o'clock, and some of the tickets which I had ordered 
 were printed. I left word that if any one called for these kind of tickets for distribu- 
 tion to let them have them. 
 
 Q. Is that all the tickets you had anything to do with? A. That is all the tickets 
 
 I had anything to do with. 
 
 ' Q. Why were yourself, Ray, O'Connell, and Brockway interested in having "for 
 license " on the tickets ? A. Because we were engaged in the liquor trade ; that was 
 the day prescribed for the local-option election. 
 
 Q. You state in your direct examination that you gave an order to have tickets 
 printed with the words " for license" on them, and that you went there between 9 
 and 10 o'clock in the morning and left the order and went back between 10 and 
 
 II o'clock and found some of the tickets were printed, and state you never handled 
 or distributed any of the tickets, and left the printing office, and did not return there 
 after 3 o'clock in the afternoon; were you there after 11 o'clock on that day? A. I 
 think I went up there after that time, but not after 3 o'clock of that day. 
 
 Q. Were the tickets printed when you were there the last time on that day ? A. 
 There were some printed. I did not take the interest in looking after the tickets after 
 giving the order, for when I came down town I found a number had been writing on 
 the bottom of the ticket the words "for license," and some of the parties interested 
 in voting for license thought they would make their tickets answer the purpose, but 
 I did send parties, or inform interested parties, that I had left the order for the tickets 
 to be printed, and if they wanted them to send after them. 
 
 Q. How many tickets did you order printed ? A. I don't know the number. I left 
 five dollars to pay for the printing. 
 
 Q. What arrangement had you for distributing these tickets? A. I had left word 
 with Bay, Mr. Brockway, and Mr. O'Connell where they were. I made no other 
 arrangements. 
 
 Q. Were these tickets ever distributed ? A. I do not know. 
 
 W. N. Portis, another of the persons mentioned in the testimony of 
 Mr. Robinson as connected with the ordering and folding tickets at' the 
 late hour mentioned, testifies as follows : 
 
 Q. State the particulars of the tickets struck off at the Press office for you on the 
 day of the election ? A. There being a great many tickets destroyed during an elec- 
 tion here, we have generally had a large number of tickets struck off; and during the- 
 day of the election my attention was called to the fact that no tickets were struck off 
 with "for or against license " on them. I told Mr. Haycock to go amongst the saloon- 
 men of the town and get up a collection and have a large number of tickets struck off 
 with the words " For license " on them ; I also went to the office to see that it was 
 properly done; afterwards I found out that they were destroying the tickets in the 
 houses at which they were left and defacing them ; I told him that probably we had 
 better have more of them struck oft'; do not know whether he did or not. 
 
 Q. What time did you get last tickets from Press office on that day ? A. About 4 
 o'clock ; don't remember the exact time ; they were Destroying them, and we would 
 send and get them. 
 
 C. (r. Xewman, proprietor of the Press office, and another of the per- 
 sons mentioned by Mr. Eobinson in connection with the printing of the 
 tickets, testifies as follows : 
 
 Q. I notice in the testimony of Dan. M. Robinson, taken for the contestant, that he 
 alludes to the printing of some tickets, on the day of the Congressional election, at 
 your office ; if you remember anything of the printing of said tickets, state it fully. 
 A. There were no tickets printed in my office after noon on the day of the Congres- 
 sional election, that I know of, whatever; I have no recollection of giving Robinson 
 any ticket to print at all. Mr. S. C. Ryan was the foreman of the office, and 1 always-
 
 BRADLEY VS. SLEMONS. 307 
 
 turn over work that I receive to him, if present ; if not present, I turn it over to the 
 foreman of the news department, Mr. Arthur Murray, who has been with me for many 
 years. But Mr. Ryau was at the office during the working hours of the day men- 
 tioned. Colonel Haycock did give mo an order for some tickets with Slemous's name 
 on, and at the bottom were the words "For license.'' He paid me for the tickets, 
 stating at the same time rhat the managers who had had Slemons's tickets printed 
 had overlooked the liquor-license question, and he, being a liquor dealer, felt inter- 
 ested in getting the voters to vote for license. 
 And further deponent saith not. 
 
 An examination of the entire testimony on this paint, when submitted 
 to the well-known rules for testing its weight audconclusiveuess, clearly 
 shows that not the slightest pretense exists in support of the theory 
 contended for by contestant. The object in having the tickets printed 
 is fully and satisfactorily explained; the time they were printed is also 
 shown, and any suspicion that might be created by the testimony of Mr. 
 Robinson that they were printed or used for an illegal purpose, is, we 
 think, dispelled by the testimony of Haycock, Portis, and Newman. 
 Besides, if a suspicion really existed that any ballot-box contained more 
 votes for contestee than were actually polled, the ballots and poll-books, 
 so far as the testimony shows, are still in existence, in charge of the 
 proper officers ; and an examination and comparison would have readily 
 tested the truth or falsity of contestant's charge. The weight and force 
 of the testimony given, we think, imposed that duty upon contestant. 
 It will be observed contestant claims he was the choice of the Repub- 
 lican and Greenback parties, and received their full vote in the district, 
 and particularly in the county of Jetferson, and, therefore, there must 
 have been a fraudulent counting of the ballots, as the returns show he 
 received a smaller vote than that conceded to the Republican party 
 alone ; and hence it is insisted he should be credited with the full Repub- 
 lican vote cast at previous elections. It is hardly necessary to say that 
 no warrant exists for such a claim, and if, under any circumstances, ifc 
 could be maintained, a brief examination of the facts elicited by the tes- 
 timony will show his claim to be based on false premises. 
 
 All the witnesses agree that a very small vote was polled throughout 
 the district, some estimating it between one-half and two-thirds of a full 
 vote ; that great apathy existed among the people ; no extended can- 
 vass had been made ; few public meetings held ; no excitement or en- 
 thusiasm prevailed; that -the previous county election in Jefferson 
 County had its influence in the Congressional election, many Republi- 
 cans having supported contestee who voted with the Democrats at the 
 previous election, in support of the compromise ticket. Contestant was 
 not the nominee of the Republican party, and, while canvassing, de- 
 nounced both the Republican and Democratic parties, asserting that he 
 belonged to neither, and while witnesses for contestant declare their 
 belief that he received the vote of the Republican party, not one haz- 
 arded the assertion that a full vote was cast, but venture the opinion 
 that upon a full vote, a fair election, and a proper count, contestant 
 would receive the Republican vote, while, on the other hand, it is in 
 evidence, by both Democrats and Republicans, that many prominent 
 and leading Republicans, their names being given, warmly supported 
 coutestee ; that contestant was obnoxious to a considerable portion of 
 the Republican party. 
 
 It seems hardly probable from these facts, and the additional one as 
 testified to, that the Democratic majority in the district at a previous 
 election tor governor, upon a test vote, was about 2,500 (page 95). that 
 contestant would receive the full strength of a party he openly de- 
 nounced, and to which he denied allegiance.
 
 308 DIGEST OF ELECTION CASKS. 
 
 We append the testimony of H. King White (pages 9G and !)7) upon 
 this point, as it is more full than that of any other witness, and clearly 
 states the causes which contributed to the result: 
 
 Q. Taking the Republican strength as a basis of Jetfersou County, is there any rea- 
 son why John M. Bradley should claim the usual Republican majority there? A. There 
 was none ; on the contrary, a great many of the prominent Republican leaders of the 
 county were openly pronounced against him. 
 
 Q. Taking the certified vote for Congress at that election, showing 1,570 for Bradley 
 and 1,189 for Slenions in that county, would you deduce from it any evidence what- 
 ever, from your knowledge of Bradley 's strength and influence, of any unfairness in 
 favor of Slemons as against Bradley * A. I would not : and I ascribe that result to the 
 ' following reasons : The only approach to anything like a full vote in any of the voting 
 jireciucts in the county was at the Vaugine Township boxes. The falling oft" at the 
 other precincts was more than an a%'erage of one-half as compared with the Septem- 
 ber election, and almost entirely of Republican votes, Slemons receiving at nearly 
 every precinct the full party vote, and in many instances more than the party vote. 
 I calculate that there were 2,000 Rebublicau votes in the county not offered on that 
 day at all. Never since the separation of the State and Congressional elections has the 
 Republican party polled its full strength in a Congressional election : Clayton did not 
 receive it in 1874, nor Suyder in 173. 
 
 Q. From your knowledge of the strength of Bradley and Slemons in the district, what 
 do you think of the vote as returned, as shown by certiiied abstract of same herewith 
 submitted and marked Exhibit " A " for reference and for the purpose of your depo- 
 sition? 
 
 (This question is objected to, as the abstract is not the best evidence.) 
 
 A. From this abstract shown me, Bradley polled nearer the. Republican vote in 
 Hempstead and Ouachita Counties: Slemons polled the fullest Democratic vote in 
 Jefferson and Nevada Counties: the largest falling oft in the Republican vote was in 
 Chicot, Lincoln, and Jefferson: the largest proportionate increase for Bradley was in 
 Dorsey County; the largest loss for him was in Chicot County. The only gain that 
 lemus makes ia any county is in Jefferson. This abstract shows, except in the 
 instances referred to in this answer, a large falling oft' in every county. There is not 
 a- connty where its full vote was polled in that election. 
 
 Q. Can you account for that tailing oft ' If s'>, do so. A. I account for that falling 
 oft for two reasons; first, that in September, two mouths preceding, there had been a 
 canvass for State and connty orh'cers, in which the people had beeu worked up to the 
 highest pitch of excitement on account of local questions, and when the reaction set 
 in, and in the absence of an active and vigorous canvass by either candidate for Con- 
 gress, that interest was not a wakened to get ont the full vote; second, it was a general 
 belief among Democrats that the district was Democratic and that Slemons -would be 
 elected ; third, there was no Republican candidate in the field ; and, fourth, there was 
 no Greenback party in the district. 
 
 Q. Measuring the returns from your knowledge of the district, what unfairness do 
 they indicate* A. There are no indications of unfairness in my mind, for the reason 
 that two years preceding this election, in the contest, between Snyder and Siemens, 
 when the issue was fairly made between the Democratic and Republican parties, Sny- 
 der polling about 2,300 majority in Jefferson County and upwards of 1,000 in Chicot, 
 Siemens still received about 1,300 majority in the district, and if the falling off" of the 
 Republican vote in these two counties last mentioned is considered, it is more than 
 Slemons's increased majority two years ago. 
 
 Q. In Lincoln County, do you know any particular reason why Bradley did not. 
 reach the Republican strength of that county ? A. I know that J. J. Julyn, the county 
 clerk, and C. W. Freddy, the county judge, two prominent and leading Republicans 
 in that, county, openly espoused the cause of Slemons, and on the day of the election 
 were at Auburn preciuct, the largest Republican polling place in that county, and can - 
 vassed and actively exerted thrmslves to secure the Republicans' votes for him at 
 that box. 
 
 Q. Can yon name any leading Republicans in Jefferson County who supported Slem- 
 ons? A. 1 think I can. 
 
 Q. Please do so. A. Amoug the white Republican leaders, George Haycock, the 
 postmaster; John M. Clayton, sheriff'; G. W. Prigmore, circuit court clerk ; A. E. 
 ISeansly. deputy county clerk ; Frank Silvermau, ex-county judge ; J. F. Vaughn, ex- 
 sheriff. Among the colored ones there were so many that I remember but few. Down 
 at Victoria Township, when- I was on that day, their Taylor Daniels, Aaron Ander- 
 * ,1. William Marsh, William Couelly, Jordan Dickinson, Henry Jonas, and a number 
 of others. In Vaugine Township 1 was not present on the day of the election, but on 
 the evening before that day I heard an expression of sentiment amongst prominent 
 colored men, and was informed that they advocated the election of Slemons on the 
 day. Prominent among those I might mention D. A. Robinson, Zach Simp- 
 Louis Martin, R. A. Dauran, John Ellis, D. F. Tillinan, and many others.
 
 BRADLEY VS. SLEMONS. 309 
 
 Complaint is also made by contestant that the vote of Melton Town- 
 ship was not counted. 
 
 The testimony shows that a short time before sunset, the time fixed 
 for closing the polls, one of the judges of the election, J. D. dime, was 
 threatened with an arrest by a United States deputy marshal unless 
 the polls were then closed and the votes counted ; that quite a number 
 of colored men crowded around the polls, some with guns in their 
 hands, and others having them stacked within a convenient distance, a 
 guard being placed over them ; that such was the demonstration the 
 judges considered it unsafe to remain and accordingly left, the ballot- 
 box having been thrown out to one of the colored men, a supervisor of 
 the election lor that precinct, which was afterwards returned to its place 
 upon the table. After tin- judges had proceeded a short distance they 
 concluded to return and endeavor to count the votes. Upon their 
 return it was ascertained the deputy marshal had left, that the ballot- 
 box was in "the possession of the colored men, who asserted their in- 
 tention of retaining it, and such was the excitement it was believed to 
 be unsafe to remain longer, and the judges accordingly left. (Pages 85, 
 86, 88. and 81).) Mr. Nixon, one of the judges of the election at this 
 precinct, estimates the vote cast at about 115. 
 
 There is no pretense that the election was an unfair one, or that the 
 voters were intimidated, nor is there a particle of evidence connecting 
 contestee or any of his friends with the transaction. The county clerk, 
 Mr. Niveus (page 36), testifies that the ballot-box was brought to him 
 by a United States deputy marshal securely locked, and still remains in 
 that condition. It is not pretended that the ballot-box had been tam- 
 pered with, and the vote could easily have been ascertained had the 
 proper exertion been made. It also appears there were no returns from 
 Barraque or Dunnington Townships, the inference from the testimony 
 being that no election was held in either of those townships, and no 
 reason is assigned for the failure to hold an election. It will not, how- 
 ever, be seriously contended that the result of the election can in any 
 manner be affected by the failure of these townships to hold an election. 
 
 In Washington Township it appears from the evidence that an elec- 
 tion was held, and that the judges, while on their way with the ballot- 
 box to make return, were assaulted by masked men and the ballot-box 
 was taken from them. It does not appear who those men were, nor 
 what their party affiliations, nor can any presumption arise from the 
 relative strength of the political parties to which, if to either party, 
 those desperadoes belonged, as the testimony shows (page 192) that the 
 strength of the Democratic and Itepublican parties in that precinct was 
 about equal. Hence neither party can be held responsible for the dis- 
 graceful and criminal act, nor can the result be in any way affected. 
 
 We come now to the consideration of the most important point made 
 by contestant in his brief and argument, the circulation of false and 
 fraudulent posters in Chicot County a few days before the election, an- 
 nouncing John A. Williams, a well-known Republican, as the candidate 
 of that party for Congress in that district. The object was evidently to 
 deceive the Republican party in that county, and thus induce that vote 
 to be cast for Williams, and to lessen the vote it was supposed would 
 otherwise have been cast for contestant. It was a shallow device, dishon- 
 orable to those en gaged in the transaction, and deserves t he emphatic con- 
 demnation of every friend of free and fair elections; and if the testimony 
 was sufficient to establish the complicity of coutestee with an act so dis- 
 honorable, and we were satisfied that its effect upon the voters produced 
 a result different from that which otherwise would have occurred, we
 
 310 DIGEST OF ELECTION CASES. 
 
 would not hesitate to recommend that the election be set aside and a 
 new one ordered. 
 
 The evidence upon this point is substantially that there were printed 
 at the office of the Pine Bluff Press, which supported coutestee in the 
 Congressional canvass, a number of posters or circulars, without au- 
 thority, announcing John A. Williams as the Republican candidate for 
 Congress, and urging the party to rally to his support.* 
 r These posters were left at the Planters' House, in the city of Pine Bluff 
 (at which house contestee was at the time a guest), for a friend and sup- 
 porter of coutestee. On the Wednesday before the election contestee 
 and one Dawson, who circulated these posters in Chicot County, were 
 seen conversing together at the depot a few minutes prior to the depart- 
 ure of Dawson on his mission. The subject of their conversation is not 
 revealed by the evidence, nor is there sufficient to connect the cou- 
 testee with the transaction. Samuel C. Ryan, foreman in the Pine 
 Bluff Press office, states his belief that H. King White directed the 
 printing of the posters, and that the original was in his handwrit- 
 ing (page 30). Mr. White states (page 100) that he has no recollection 
 of ordering the printing of the posters; that he never saw but one copy, 
 and that was at the Press office ; that he does not know who wrote the 
 .original ; did not see the same delivered to the printer, and does not 
 remember any conversation with coutestee upon the subject ; but had an 
 indistinct recollection of having had a conversation with Dawsou, but 
 cannot give the details. 
 
 It is contended by contestant that the conclusion is irresistible, from 
 the evidence, that coutestee was a party to this dishonorable transaction. 
 The evidence of Mr. White, above recited, must, we think, satisfy every 
 reasonable mind that contestee and White had no conversation together 
 upon the subject; and if contestee knew of the printing ami circulation 
 of the posters it is to be inferred alone from the fact that he was a guest 
 at the Planters' House when the circulars were delivered there from the 
 printing-office, and the further fact that he and Dawson were seen con- 
 versing together at the depot just prior to the departure of the latter 
 on his way to Chicot County. We submit that, in the absence of direct 
 testimony implicating coutestee, the circumstances detailed are not of 
 sufficient weight to warrant the inference contestant draws from them. 
 
 But let us pursue the subject a little farther and learn, if we can, what 
 was the probable effect produced upon the voters of Chicot County, and 
 in doing this we shall embrace the testimony taken out of time, and to 
 the admission of which objection was made, remarking, however, that 
 notwithstanding coutestee, in his oral argument before the committee, 
 waived, as far as he was able to do, all objection to its consideration, 
 the people of the district have interests and rights which cannot be thus 
 taken from them. If, as is so strongly contended, contestant was the 
 acknowledged candidate of the Republican party in the entire district, 
 and the cordial support of the party had been decided upon, it seems 
 hardly probable that so transparent a trick could have had any decided 
 influence in perplexing or confusing any considerable number of voters, 
 especially as the announcement of Williams as a candidate of the party 
 emanated from a single individual, unauthorized by any position he held 
 to speak for the party, and as, in the only county where the announce- 
 ment was made, it was at once denounced as a fraud, and as two of 
 contestant's witnesses state it was so used as to advance the interest of 
 contestant. 
 
 We assume, so far as the testimony shows, that Dawsou alone gave 
 currency to the announcement, as he circulated the posters, which were
 
 BRADLEY VS. SLEMONS. 311 
 
 -aided by a letter written by him to oiie Holland, ami which is as fol- 
 lows: 
 
 LAXDIXG, ARK., 
 
 Xoremler 2, 1878. 
 
 DEAR HOLLAND: On the eve of the election the Republicans have concluded to 
 briii; out a candidate. The circulars and tickets will speak for themselves, I send 
 you. I am sick and will take boat to-night for Arkapolis. otherwise I most certainly 
 should have come to the village. Do all you can. We think Bradley has made split 
 enough l>y proper work to get our men in. Regards to all. Do all you can. Would 
 like t<> have sem you. Come up soon as possible. 
 Yours, as ever. 
 
 EICH. H. DAWSON. 
 
 John E. Bradley, a son of contestant, the first witness introduced on 
 this subject, and to whose testimony the objection above mentioned 
 does not apply, says he found the printed posters in Arkapolis, Chicot 
 County, and was advised they were circulated by Dawsou ; that he ar- 
 rived in the county on Wednesday night, and left the next Sunday 
 morning before the election ; that he distributed tickets on behalf of his 
 lather: and that he denied the validity of the posters while in Chicot 
 County. It therefore appears the antidote soquickly followed the poison 
 that no serious effect could have been produced. 
 
 H. W. Graves, a witness for contestant, says he was in the southern 
 part of Chicot County most remote from Pine Bluff on the day of the 
 election (where it is to be presumed the injury to contestant would have 
 been the greatest), and that the posters and printed tickets with the 
 name of Williams upon them led to confusion, and were the means of 
 keeping a great many Republicans from the polls; that no votes were 
 there cast for Williams, and witness asserted his belief that the posters 
 announcing Williams as a candidate were a fraud (page 43), and were so 
 generally regarded by the Republicans. On cross-examination he states 
 a very small vote was polled at the election on November 5, 1878; that 
 Bradley in July made the only speech in Chicot County, nor were there 
 any public gatherings in regard to this special purpose (the Congres- 
 sional election) ; that the Republicans of Chicot County are mostly of 
 the laboring class, and from August to November are mostly confined 
 to their crops. He further states that the use he made of these posters 
 had an influence for Bradley. 
 
 George T. Wilkinson, a witness for contestant, states there was a 
 marked indifference by the people generally of Chicot County as to the 
 result of the late Congressional election up to a late hour, and that the 
 increased interest at this late hour was shown by the Republicans. 
 
 S. H. Holland testifies also that the posters had a tendency to con- 
 fuse the voters, and prevented quite a number from voting. 
 
 This evidence fails to satisfy us that the circulation of the posters pro- 
 duced any considerable effect upon the voters; certainly not to the ex- 
 tent of preventing any great number from voting. The general apathy 
 and indifference to the result, testified to by contestant's witnesses, 
 clearly and satisfactorily indicate the reason for the sinalluess of the 
 vote. and. in connection with the testimony of other witnesses heretofore 
 alluded to. afford the only satisfactory answer to the question why con- 
 testant. claiming to be the Republican candidate, received so cold a sup- 
 port from the party. The total vote received by Williams was cast for 
 him in Chicot County and reached the number of ninety. 
 
 Supposr we assume (which is by no means certain) that the ninety 
 votes cast lor Williams would otherwise have been given to contestant. 
 We have no means of computing the number who were so much con-
 
 312 DIGEST OF ELECTION CASES. 
 
 fused as to prevent them from voting for contestant, as the testimony 
 affords no light whatever upon the subject. It is entirely a matter of 
 conjecture, a mere guess, as liable to be wrong as right, and in view of 
 this state of the evidence contestant insists it is the duty of the com- 
 mittee to find that the confusion of the voters was so great as to pre- 
 vent 1,265 Republicans from voting for him who would otherwise have 
 done so, which, added to the vote he claims he should have received in 
 Jefferson and Hempstead Counties, would be sufficient to overcome the 
 majority returned for contestee ; not only that, but to count for him a 
 number of votes that were never cast sufficient for the purpose, and to 
 accord to him the seat now occupied by the sitting member. 
 
 We now come to the testimony taken in Hempstead County, which it 
 will be remembered is subject to the same objection heretofore men- 
 tioned. The evidence, however, shows (pages 57, 58) that the judges of 
 the election were not present at polling place No. 2 in Ozan Township, 
 and that the voters there assembled erroneously concluded there could 
 be no election ; that 350 voters, with tickets for contestant in their hands, 
 expressed a desire to vote for him ; that at Saline precinct the polls were 
 not opened for the same reasons; that 204 voters, having tickets for con- 
 testant, expressed their wish to vote for him. making 554 votes which 
 contestant contends should be counted for him. 
 
 We concede there may be circumstances under which a legal voter 
 being deprived of the privilege of casting his ballot, it may nevertheless 
 be counted. Judge McCrary, in his work on elections, page 99, says : 
 u To require each voter belonging to a class of excluded voters to go 
 through the form of presenting his ballot, and having a separate ruling 
 in each case, would be an idle and useless formality.'" But the present 
 class is not of the character entitling their votes to be counted. The 
 voters assembled at the two precincts, in the absence of the judges of 
 election, as has been shown, could have elected judges and proceeded 
 with the election. It was, partially at least, their own neglect, arising 
 perhaps from an ignorance of the law, which prevented an election being 
 held in each of the precincts named. 
 
 No fraud, intimidation, or other misconduct being alleged or shown, 
 preventing the holding an election, if the voters in the absence of the 
 regularly appointed judges fail to avail themselves of the privileges the 
 law affords, their votes cannot be counted. 
 
 Assuming the testimony taken in Chicot and Hempstead Counties, 
 and to which objection was made, to have been properly taken, we now 
 propose to make a statement of the vote, as liberal as can possibly be 
 claimed for contestant upon consideration of the entire testimony, and 
 upon the premises laid down by him ; not, however, conceding the cor- 
 rectness of his premises or the conclusions deducible therefrom. 
 
 Suppose, then, we concede to contestant 700 additional votes in Vau- 
 gine Township, which is a large estimate even upon his own assump- 
 tion, and also the entire vote cast in Melton Township and not counted, 
 without conceding a single vote to. contestee, and also GOO additional 
 votes in Chicot County, including the 90 votes cast for Williams, and 
 assuming that they would have been cast for contestant except for the 
 circulation of the false posters announcing Williams as the candidate 
 of the Republican party, and also the 554 votes in Hempstead County 
 at the two precincts in Saline and Ozan Townships, where no election 
 was held, assuming that 554 legal voters ;it those precincts would have 
 voted for contestant, and that not a vote would have been cast for con- 
 testee, and the result will be found still showing a considerable majority 
 for contestee. as will appear from the following statement :
 
 BRADLEY VS. SLEMONS. 313 
 
 Majority returned for contestee 2, 827 
 
 Additional votes for contestant in Vaugine 700 
 
 Additional votes tor contestant in Melton ll."> 
 
 Additional votes for contestant in Chicot County >00 
 
 Additional votes tor con lest ant in Heuipstead Comity .V-.J 
 
 Majority still remaining i'ur contestee 858 
 
 No calculation we can make, based upon the testimony, even admit- 
 ting tbat to which objection is made, will warrant the conclusion that 
 contestant is entitled to the seat now occupied by the sitting member. 
 We therefore are of the opinion that the contestee is entitled to re- 
 tain the seat he occupies, and recommend the passage of the following 
 resolution : 
 
 Resole td. That William F. Siemens is entitled to retain the seat he 
 now occupies as Representative from the second Congressional district 
 in the State of Arkansas in the Forty-sixth Congress. 
 All of which is respectfully submitted. 
 
 SAM'L L. SAWYER. 
 WILLIAM M. SPRINGER. 
 WALPOLE G. COLERICK. 
 F. E. BELTZHOOVER, 
 ALYAH A. CLARK. 
 EMORY SPEER. 
 E. C. PHISTER. 
 R. F. ARMFIELD. 
 VAN H. MANNING. 
 
 We concur in the conclusions of law above set forth, and also in the 
 conclusion as to the right of the sitting member to hold his seat. 
 
 W. H. CALKINS. 
 E. OVERTON, JR. 
 W. A. FIELD. 
 J. WARREN KEIFER. 
 JOHN H. CAMP. 
 
 Mr. WEAVER submitted the following as the 
 1'IEU'S OF A MINORITY: 
 
 FEBRUARY 24, 1880. 
 
 1 cannot agree with the report made by the majority of the committee,, 
 for the following reasons: 
 
 First. The evidence taken in Chicot and Hempstead Counties was 
 taken after the forty days from the service of contestee's answer on the 
 contestant had expired, but no protest was entered or made by con- 
 testee, so far as it appears in the record, until the depositions had all 
 been taken, signed, and certified. Contestee appeared and cross-exam- 
 ined the witnesses without making objection. He entered his objection 
 just as the depositions were ready to be sealed and transmitted. I 
 submit to the House whether coutestee, by his appearance and cross- 
 examination, without objection, did not waive all right to object to the 
 testimony on this ground. 
 
 Second. 1 submit to the House whether, upon the whole evidence, it 
 does not appear that there were such fraudulent practices, intimidations,
 
 314 DIGEST OF ELECTION CASES. 
 
 and criminal means resorted to by the coutestee's political friends as to 
 render uncertain and doubtful the result of said election; and whether 
 right, justice, a due regard for law, order, and the purity of the ballot- 
 box, as well as for the protection of the people of said district, do not 
 demand that the seat of contestee be declared vacant and a new elec- 
 tion held in conformity to law. Tf the House shall take this view of the 
 case, I respectfully submit the following resolution for its adoption : 
 
 Resolved, That the seat now occupied by William F. Siemens as a 
 member of Congress from the second Congressional district of the State 
 of Arkansas in the Forty-sixth Congress be, and the same hereby is, 
 declared vacant. 
 
 Respectfully submitted. 
 
 J. B. WEAVER.
 
 BISBEE VS. HULL. 315 
 
 HORATIO BISBEE, JR., vs. XOBLE A. HULL. 
 
 SECOND CONGRESSIONAL DISTRICT OF FLORIDA. 
 
 Iu this case the State canvassing board rejected the vote of a couuty ou the ground 
 that one precinct had made no returns. 
 
 Held. That the vote of a poll having been ascertained indisputably it must be counted. 
 In a contest before the House of Representatives the vote shown by au unassailed 
 return cannot be rejected on the ground of a failure of some other body to caii- 
 v ass it. 
 
 Where duly certified copies of returns, signed by all the officers of the election, per- 
 fect in form, clear and explicit in the statement of votes cast, are put in evidence, 
 they are by law the primary legal evidence of the votes cast, and unless assailed 
 are conclusive. 
 
 A certificate of election made in obedience to a writ of mandamus has the same legal 
 force as in auy other case. 
 
 The House adopted the report January 22. 1881. 
 
 JANUARY 18. 1881. Mr. KEIFER, from the Committee ou Elections, 
 submitted the following 
 
 EEPOET: 
 
 Th ec on Elections, to whom was referred the contested-election 
 
 case of Horatio Bisbee.jr., against Soble A. Hull, of the second Congres- 
 sional district of the State of Florida, respectfully report: 
 
 That the second Congressional district of the State of Florida is coin- 
 posed of seventeen counties; that in the original canvass by the State 
 board of canvassers of the votes cast therein in the year 1878 for 'Rep- 
 resentative to the Forty-sixth Congress, the following result appeared : 
 
 Hull. Bisbee. 
 
 1. Volusia County 367 243 
 
 2. Saint John's County 532 346 
 
 3. Suwauuee County.. 540 553 
 
 4. Putnam County.' 616 622 
 
 5. Orange Couuty 823 213 
 
 6. Nassau County 622 769 
 
 7. Marion County 1,006 1,190 
 
 8. Hamilton County 609 418 
 
 9. Duval County . .'. 1, 130 2, 214 
 
 10. Columbia County 908 803 
 
 11. Clay County...! 207 112 
 
 12. Bradford County 697 223 
 
 13. Baker County/. 256 158 
 
 14. Dad.- County 47 14 
 
 15. Archer County 1,178 1.745 
 
 Total 9,640 9,628 
 
 The majority for Mr. Hull was thus found to be 12. The first canvass 
 was made on December 21, ISTs. by the State canvassing board, com- 
 posed of the secretary of state, the comptroller, and the attorney gen- 
 eral of the State of Florida : and thereupon, on the same day. the 
 governor of that State issued to Xoble A. Hull a certificate of election. 
 (Record, page oOO.) By virtue of this certificate Mr. Hull was admitted 
 to a seat in the House.
 
 316 DIGEST OF ELECTION CASES. 
 
 It will be uoted that in this first canvass the vote of only fifteen of 
 the seventeen counties was canvassed ; that the vote of Brevard and 
 Madison Counties was not canvassed. 
 
 The State canvassing board met again on January 8, 1879, and, in 
 obedience to the mandate of the supreme court of Florida, again can- 
 vassed the vote of the second district of Florida, and included in the 
 canvass the returned vote from the county of Madison, no return being 
 before the board from poll No. 4 of Madison County. 
 
 The vote thus canvassed from Madison County was. Hull 038, and 
 Bisbee 1,151; majority for Bisbee, 213. The result of this second can- 
 vass showed Mr. Bisbee's majority to be 201, the State board of can- 
 vassers having found and certified Mr. Hull's total vote to be 10.578, and 
 Mr. Bisbee's total vote 10,779. (Eecord, pages 218-220.) 
 
 The opinion of the supreme court of Florida, pronounced by the chief 
 justice, on the question of canvassing the vote of the county of Madison, 
 will be found in the record, page 221. 
 
 On this final canvass Mr. Bisbee applied to the governor of Florida 
 for a certificate of his election, which was referred by the governor to 
 the attorney-general of the State, who, on January 10, 1879, gave his 
 opinion to the governor, favoring in most emphatic language Mr. Bis- 
 bee's right to such certificate. (Record, page 228.) Mr. Bisbee's appli- 
 cation was, however, refused. 
 
 The vote of Brevard County was never canvassed by the State can- 
 vassing board, for reasons assigned in writing by the board on Decem- 
 ber 23, 1878. (Record, page 220.) 
 
 Parties and their attorneys agree that poll No. 4, Madison County, 
 was never returned to the county canvassing board, and hence it was 
 never canvassed ; and it is in like manner agreed that the true vote cast 
 at this poll was, Hull 129, and Bisbee 186 ; majority for Mr. Bisbee, 57. 
 (Contestee's brief, page 14; and Record, pages 25. 27, 28.) 
 
 It is also proved, as admitted, that there was no return of the votes 
 cast at Cow Creek precinct, Alachua County, and that the true vote 
 cast there was, Hull 24, Bisbee 2; Hull's majority, 22. (Record, page 
 242 ; and contestant's brief in re'ply, page 4.) 
 
 It is also an admitted fact in the case that at Long Swamp or White- 
 ville poll, Marion County, 93 Democratic ballots were fraudulently sub- 
 stituted for a like number of Republican ballots, thereby making a dif- 
 ference in the vote as canvassed of 186 votes against Mr. Bisbee. 
 
 The contestee (brief, page 37) agrees that this fraud was committed, 
 and that at this precinct " 134 votes should be counted for contestant 
 and 41 for contestee." 
 
 The vote returned and canvassed was 134 for contestee and 41 for 
 contestant. 
 
 An agreed statement fixes the vote of Brevard County at 116 for Hull 
 and 41 for Bisbee. (Record, page 487.) 
 
 Assuming that the vote should be counted as found and agreed upon, 
 as stated above, the following result is reached : 
 
 Hull. Bisbee. 
 
 Original canvass of State board 9,640 9,628 
 
 Madison County as canvassed by State board, by order of supreme 
 
 court 938 1,156 
 
 PollNo.4 Madison County T2G 186 
 
 Add for Long Swamp or White vi lie poll, Marion County 186 
 
 Cow Creek poll, Alachua County 24 2 
 
 Brevard Couuty.as per agreement 116 41 
 
 Total . 10,844 11,194 
 
 Majority for Horatio Bisbee, jr 350
 
 BISBEE VS. HULL. 317 
 
 Subject to a slight deduction to be made for reasons hereinafter given, 
 your committee find Mr. Bisbee's majority to be 350. 
 The grounds for this finding will be very briefly stated. 
 
 MADISON COUNTY. 
 
 Without deciding the question of the jurisdiction of the supreme court 
 to issue a mandamus to compel the State canvassing board to canvass 
 the vote of Madison County, the committee, on the returns and testi- 
 mony now before it, find that the board had no legal right to reject the 
 returned vote of the county in their first canvass, and that Mr. Bisbee 
 is now entitled to have such vote counted for him. 
 
 The testimony discloses no objection to the returns, and none is 
 known to exist. The returned vote of Madison County was rejected by 
 the State canvassing board on the sole ground that one of the pre- 
 cincts (poll No. 4) had made no returns. 
 
 No case can be found where in a contest before the House of Repre- 
 sentatives the vote shown by airuuassailed return has been rejected 
 on the ground of a failure of some other bodj~ to canvass it. 
 
 The vote of poll No. 4 having been ascertained indisputably, it must 
 of course be counted. 
 
 The coutestee in his brief also urges certain special objections to the 
 vote of four voting precincts of Madison County being counted, but 
 there is nothing in his answer to base these objections upon, and the 
 evidence does not sustain them. 
 
 The contestant stoutly insists that there should be counted for him 
 182 votes not cast at a regular poll or returned as required by law, but 
 which were cast for him at a supplemental poll in district No. 1 of 
 Madison County. 
 
 It seems to be shown that this number of persons did not get in their 
 votes at this polling-place, for the alleged want of time for the judges 
 to receive them. The committee does not think, under the proofs, that 
 these votes can be counted, whatever the rule of law may be in a proper 
 case. 
 
 I.nng Sicamp and Cow Creek polls. 
 
 No further remark is necessary to be made as to. the vote of these 
 two precinct* in Marion and Alachua Counties. The fraud in the former 
 and the omission of the vote of the latter are not only shown by the 
 proof, but both are admitted facts in the case. 
 
 BREVARD COUNTY. 
 
 While it is true that the contestant insists that the vote of this 
 county should now be wholly excluded, as it was by the State canvass- 
 ing board, in view of the agreement signed by the parties, and also on 
 account of the unsatisfactory character of the testimony, the committee 
 conclude that the vote of this county should be counted, and as fixed 
 in said agreement. (Record, page 487. 
 
 CONTESTEE'S CASE. 
 
 The coutestee objects to counting the votes in certain precincts not 
 already considered. 
 
 ALACHUA COUNTY. 
 
 Objection is made to counting the vote of three precincts in Alachua 
 County. 
 
 The names of and votes returned from the three polls in this county
 
 318 DIGEST OF ELECTION CASES. 
 
 objected to are as follows, according to duly certified copies of the re- 
 turus put in evidence by the contestee himself: 
 
 Hull. Bisbee. 
 
 Arredonda poll, (Record, page 487) (>(> 225 
 
 Gainesville poll, (Record, page 492) 234 324 
 
 Dudley's Store poll, (Record, page -Uh) 57 278 
 
 Total 357 827 
 
 As already stated, duly certified copies of these returns were put in 
 evidence by the contestee; they are signed by all the officers of the elec- 
 tion ; they are perfect in form, clear and explicit in the statement of 
 votes cast, and have all been adjudged by the unanimous opinion of the 
 supreme court of Florida, in a case before it, to be good and valid re- 
 turns of the election at these polls. (17 Florida Reports, page 17.) 
 
 They are by law the primary legal evidence of the votes cast, and unless 
 assailed are conclusive. 
 
 The counsel for contestee. in their brief, have not assailed these re- 
 turns, nor sought to impeach them upon any ground whatever. 
 
 They argue that they should not be counted simply because the county 
 canvassing board, in their first count, did not count them, and that the 
 supreme court, under whose orders they were canvassed, had not juris- 
 diction to compel the board to canvass them. In answer to this it is 
 sufficient to say that the returns, being unassailed, are conclusive evi- 
 dence before this committee; and it is our duty to count them, no mat- 
 ter whether the supreme court of Florida had or had not jurisdiction to 
 order them counted. The assault here made is not upon these returns, 
 but upon the jurisdiction of the court, which we are not called upon to 
 maintain or defend. We therefore overrule this objection to these three 
 polls, and hold that the votes returned from them must be counted. 
 
 There is nothing in the testimony which in the least seeks to impeach 
 the regularity of these returns. 
 
 And a certificate of election made in obedience to a writ of mandamus 
 has the same legal force as in any other case. (McCrary on Elections, 
 sections 335, 345. ) 
 
 Besides, the county canvassing board of Alachua County were ex- 
 pressly prohibited by statute from rejecting these returns, and the 
 supreme court of Florida so held. The statute of Forida prescribing 
 the duty of county couvassing boards reads as follows: 
 
 Such canvass shall be solely and entirely from the returns of the precinct inspectors 
 in each election district as filed by them with the county judge and clerk of the cir- 
 cuit court, respectively, and in no case shall the board of county canvassers change or 
 vary in any manner the number of votes cast for the candidates respectively at any 
 of the polling-places or precincts in the county, as shown by the returns of the in- 
 spectors of such polling-places or precincts. 
 
 No language could be employed to more completely prohibit a can- 
 vassing board from rejecting a return ; and consequently the county 
 canvassing board had not jurisdiction to exclude those precinct returns, 
 and their action was null and void, and the supreme court of Florida so 
 held. 
 
 In his answer contestee avers that at Arredonda poll ballots for con- 
 testant were marked by the election officers, and that the act of marking 
 the ballots rendered them illegal, and intimidated voters from voting for 
 contestee. (Record, page 0.) 
 
 Counsel for contestee, in their brief, have not alluded to this objec- 
 tion, and it is therefore fair to presume that in their judgment it could not 
 be sustained. In their oral argument it was suggested that if the con-
 
 BISBEE VS. HULL. 
 
 testee was injured that is, lost votes by reason of the marking of the 
 ballots the returns should be rejected, while they admitted that the 
 marking of the ballots did not, per se, vitiate them. We are unable to 
 find any evidence in the record that contestee was injuried by number- 
 ing the ballots. He received the highest vote that any of the local 
 candidates on his ticket received at that poll. 
 
 Two of the election officers were sworn, and their testimony is in sub- 
 stance that they numbered the ballots to correspond with the numbers 
 opposite the names on the poll-list, at the request of a United Statessuper- 
 cixor, because the latter thought it was necessary to make the election 
 legal, and they did not know to the contrary, and without any improper 
 motives. (Record, pages 231-3 ; record, pages 235-6.) 
 
 Counsel for coutestee admitted before the committee, in argument, 
 that the ballots were not marked with the design or purpose of affecting 
 the fairness of the election to the injury of coutestee. It is evident that 
 such was not their intention. It does not appear that it was generally 
 known among the electors that the ballots were being marked, nor is 
 there any evidence this coutestee lost a single vote by it. Only one 
 voter is called as a witness (except the inspectors) to prove that the 
 numbering of the ballots influenced his vote, and he testifies that it did 
 not influence his vote. (Testimony of Aaron Huey, record, pages 483-4.) 
 
 It can scarcely be claimed that the evidence is sufficient to prove that 
 the contestee was injured by the numbering of the ballots. On the other 
 hand, the return shows that contestant ran behind his local ticket 31 
 votes at this poll (record, page 488) ; and Inspector Tucker, a Demo- 
 crat, and sheriff of the county, testified that contestant received less 
 votes than the local ticket. (Kecord, page 233.) 
 
 AYe therefore conclude that the contestant has as much cause to com- 
 plain of the numbering of the ballots as the coutestee. 
 
 The same objection is made to one poll in Orange County by contest- 
 ant, and testimony was adduced to sustain it. But we think the testi- 
 mony insufficient to prove that contestant was injured, if any person, 
 by the marking of the ballots at this poll. (Record, pages 471, 609, 
 610, 612.) 
 
 This disposes of Alachua County. 
 
 EIGHTEEN SCATTERING VOTES. 
 
 Of the 18 scattering votes, to wit, 2 in Duval, 3 in Putman, 8 in 
 Baker, 2 in Columbia, and 3 in Suwauuee. which it is claimed should be 
 deducted from the contestant's vote, the committee conclude, without 
 stating the reasons at length, that 11 of these votes, to wit, 8 in Baker 
 County and 3 in Suwanuee County, should be deducted from the con- 
 testant's vote, and that the remainder should be counted. 
 
 These 11 votes are rejected on the ground that they were cast by non- 
 residents, or non-registered voters. 
 
 Deducting the 11 votes from the 350 majority of Horatio Bisbee, jr., 
 as already found by the committee, reduces his majority to 339, which 
 the committee finds, from the whole case, to be his majority. 
 
 The committee, in accordance with its findings, recommend for adop- 
 tion by the House the following resolutions : 
 
 (1) Btsolved, That, !Noble A. Hull is not entitled to retain his seat as 
 a member of the Forty-sixth Congress of the United States as a Repre- 
 sentative of the second Congressional district of the State of Florida. 
 
 (2) Resolved, That Horatio Bisbee, jr., is entitled to a seat as a mem- 
 ber of the Forty-sixth Congress as Representative of the second Con- 
 gressional district of the State of Florida.
 
 DIGEST OF ELECTION CASES. 
 JAMES M'CABE vs. GODiLOVE S. OKTH. 
 
 NINTH CONGRESSIONAL DISTRICT OF INDIANA. 
 
 Mew notice of contest. The committee, on showing of contestant, adopted a resolution 
 granting further tjme in which to serve notice of contest and to proceed to take 
 testimony. This resolution was not reported to the House in time to be of any 
 avail, and subsequently the committee recommended that contestant have leavo 
 to withdraw his papers. 
 
 Tlie House adopted the report February 15, 1881. 
 
 FEBRUARY 15, 1881. Mr. CALKINS, from the Committee 011 Elections, 
 submitted the following 
 
 REPORT: 
 
 The Committee on Elections, to whom were referred the papers in the con 
 tested election-case of James McCabe vs. God-lore S. Orth, from the ninth 
 Congressional district of Indiana, having had the same under considera- 
 tion, beg leave to submit the following report: 
 
 Your committee, to whom was referred the contest in this case, re- 
 port the following facts to the House : 
 
 Mr. Orth was returned elected by the election officers of the various 
 counties comprising said district, receiving, according to their returns, 
 15,608 votes, and Mr. McCabe, his principal opponent at the same elec- 
 tion, receiving, according to their returns, 15,510 votes. 
 
 On the 1st day of November, 1878, Mr. Orth received his certificate 
 in due form from Hon. James D. Williams, then governor of Indiana, 
 Within thirty days thereafter, and on the 12th day of November, 1878, 
 Mr. McCabe served a notice of contest upon Mr. Orth, specifying, as is 
 alleged, the grounds of contest particularly, therein. This notice never 
 came into the possession of your committee. 
 
 On the 5th day of December thereafter it is alleged that Mr. Orth 
 fully answered each ground and specification of contest and served the 
 same on that day on Mr. McCabe. 
 
 It is alleged by Mr. McCabe in a memorial presented to your commit- 
 tee, duly verified by him, that he did not take any testimony to support 
 the several allegations in his notice of contest during the time allowed 
 by law, for the reason, among others, that there was a contest pending 
 between other contestants, which was in process of trial before the 
 proper tribunal in the county of Montgomery, which would, and which 
 did, develop substantially the evidence relied upon by him to overturn 
 the declared result in the canvass of the votes in the said ninth dis- 
 trict. He also alleges that his little boy was quite sick after that, and 
 subsequently died, and that his presence was necessary at the bed-side 
 of his dying son. He further alleges in his memorial that as early as 
 February, 1879, he discovered new evidence which he alleges tended to 
 support an allegation of. bribery by the friends of Mr. Orth, which
 
 M'CABE vs. ORTH. 3>1 
 
 affected 150 voters who voted for Mr. Orth, and claimed that the estab- 
 lishment of this fact \.ould set aside the majority returned for Mr. Ortb, 
 and clearly establish his right to a sear in this Congress. This petition 
 or memorial was presented to your committee on the 10th day of June, 
 1879. There were two ether affidavits subsequently filed by Mr. Mc- 
 Cabe, signed by Mr. Dobblebower and Mr. Paterson, in which affidavits 
 each of flie affiants testified that, on information and belief, facts tending 
 to establish the bribery aforesaid might be elicited if time were given 
 to take depositions. 
 
 Jn answer to this memorial, supported by the affidavits of Mr. Mc- 
 Cabe and the two witnesses aforesaid. Mr. Ortb promptly tiled his own 
 affidavit with your committee, denying generally the specifications i.n 
 Mr. MVC.ibe's memorial and affidavit so far as it affected his right to a 
 seat iu Congress, and specifically denying any connection with, or 
 knowledge of, the bribery alleged by Mr. McCabe. Numerous affidavits 
 are also filed in support of Mr. Orth's claim. 
 
 An issue being thus made, your committee were called upon to decide 
 whether under the circumstances additional time should be given the 
 contestant to take testimony and the eontestee to rebut, when it was 
 decided, on the L'.'Jd day of March, 1880, to grant time, and the follow- 
 ing resolution was adopted: 
 
 I,'rvlrr'l, Thai J:i:i. be, contesting the rijilu of the Hon. (iodlove S. Orth to 
 
 i in this Hou< . :is :i j{ -present a live from tlie ninth Congressional district of the 
 Sr.-iir of Indiana, be. and In- is hereby. authorized to serve niton the said Orth within 
 ten da\s after the pjissn^e (if iliis resolution a particular statement of the grounds of 
 said mutest, and that the s;iid Orrli he. and lie is hereby, required to serve upon the 
 said McCabc liis auxwer thereto in twenty days thereafter, and tliat boili parties be 
 authorized and reiinired to proceed within ten da\ s after the adjournment of this ses- 
 sion of Congress in rake evidence in the rase, in the manner and subject to all pro- 
 visions of law now in force applicable to the taking of evidence in contested-election 
 cases, the same as if the contestant bad heretofore proceeded 111 time to take evidence 
 in support of his claim to the seat. 
 
 15y some inadvertence this resolution was never reported to the 
 House, and the House consequently never acted upon it. 
 
 No testimony having been taken during the time allowed by law, 
 and the resolution not having reached the House, whereby testimony 
 might be taken under the order of the House, the case again came up 
 at a meeting of tire committee at this session of Congress, during last 
 December. Your committee took the case up for consideration, and it 
 being deemed unnecessary to report the aforesaid resolution to the 
 House for action, b, >cuuse there did not remain sufficient time for the 
 taking and certifying of testimony, or for the action of the committee 
 of the House during the remaining time of this Congress, your com- 
 mittee reconsidered its former action, and, on the 11th day of January, 
 1881, passed the following resolution : 
 
 That in view of the short time remaining before the adjournment, ami the 
 ini|iroliabi!iiy of taking evidence under the statute, the resolution heretofore passed. 
 March -''>. ]->n. in reference to the contest in the case of McCabe r*. Orth, be, and is 
 hereby, rescinded, and the contest be, and i.s hereby, discontinued. 
 
 In view, then-lore, of all the circumstances, your committee recom- 
 mend the passage of the following resolution: 
 
 l\'<.-xolrt'<l. That the contestant, -lames MHV.be, contesting the right 
 of the. lion. Godlove S. Orth, from the ninth Congressional district of 
 Indiana, to a seat in the Forty -sixth Congress, have leave to withdraw 
 his papers in said contest, and that the Hon. (iodlove S. Orth's title to 
 Iris seat in the said Congress be, and the same hereby is, confirmed. 
 II. Mis. 58 - 21
 
 322 DIGEST OF ELECTION CASES. 
 
 J. C. HOLMES AND JOHN J. WILSON IOWA CONTESTED 
 
 ELECTION. 
 
 IN THE MATTER OF J. C. HOLMES, CLAIMING A SEAT FROM THE 
 EIGHTH CONGRESSIONAL DISTRICT OF IOWA. 
 
 IN THE MATTER OF JOHN J. WlLSON, CLAIMING A SEAT FROM THE 
 NINTH CONGRESSIONAL DISTRICT OF IOWA. 
 
 Holmes and Wilson presented petitions to the House in which they set up that they 
 were elected Representatives in Congress from the eighth and ninth districts of 
 Iowa, respectively, at an election held Novembers, 1878, by a majority of the legal 
 votes cast at such election, and that certificates of such election have been for- 
 warded to the Clerk of the House of Representatives. The petition does riot state 
 that any other person has been declared elected at that or any other election, or 
 that a certificate of election had been granted to anybody by the governor of the 
 State of Iowa, and they do not ask that the election of any other person may lie 
 inquired into. 
 
 Held, That in the absence of any evidence of action on the part of the authorities of 
 the State in making proclamation and giving notice of the election, and canvass- 
 ing the votes after the election, and in the absence of evidence that it was gener- 
 ally understood that an election for Representative in Congress was to be held on 
 that day, it is impossible to hold that either Mr. Holmes or Mr. Wilson had been 
 elected. 
 
 The House adopted the majority report January 31, 1881. 
 
 DECEMBER 21, 1880. Mr. FIELD, from the Committee on Elections, 
 submitted the following 
 
 /,- /: / o i; T : 
 
 In the matter of J. C. Holmes, claiming' a seat from the eighth Con- 
 gressional district of the State of Iowa ; and 
 
 In the matter of John J. Wilson, claiming a seat from the ninth Con- 
 gressional district of the State of Iow;t. 
 
 The petition of J. C. Holmes, found on page 1 of the printed papers, 
 sets forth his claim substantially as follows : 
 
 1st. That on the 5th day of November, 1878, being the Tuesday next 
 after the first Monday of November, he was duly elected a Representa- 
 tive in Congress from the eighth Congressional district of Iowa by a 
 majority of the legal votes cast at such election. . 
 
 2d. That certificates of said election have been forwarded to the 
 Clerk of the House of Representatives. The prayer is : 
 
 Your petitioner therefore respectfully requests your honorable body to take -such 
 action as will give him his legal rights as Representative from the eighth Congres- 
 sional district of the said State of Iowa in the Forty-sixth Congress, to which he is 
 entitled by virtue of an election held in conformity to the laws of the United States 
 on the 5th of November, A. D. 1878.
 
 HOLMES VS. WILSON. 323 
 
 The petition does not state that any other person has been declared 
 elected at th.it or any other election, or that any other election had 
 been held, or that a certilicate of election had been granted to anybody 
 by the governor of the State of loAva, and the prayer of the petition 
 docs not ask that the election of any other person may be inquired 
 into. 
 
 The petition does not state that any rights of Holmes as a citi/en or 
 voter in lo-.\a have been violated, or that as a citi/en or voter he has 
 an\ complaint to make or any relief to ask. 
 
 The general language of the petition and papers in the case of .John 
 ,1. Wilson is the same as in Ilolmes's case: the petition of Mr. Wilson, 
 however, also states that the Clerk of the House of Representatives en- 
 rolled thf names of those persons who had the certificates of the gov- 
 ernor which were issued to the persons who were chosen at an election 
 held in the month of October: the prayer of this petition is the same as 
 in the case of Holmes. 
 
 It is a tact, however, of which perhaps the I louse may take notice, that 
 Mr. William F.Sappand Mr. CyrnsC. Carpenter were elected Representa- 
 tives in Congre.-s respectively from the eighth and ninth Congressional 
 districts of the Stare of Iowa, at a eneral election held on theSth day 
 of October. 1S7<S. being' the second Tuesday of October; that they re- 
 ceived the certificate of the governor, were sworn in, and now hold 
 their scats. 
 
 No person is made party respondent to the petitions; the petitions 
 have never been served on ;,ny one, and no notice of the petitions, so far 
 as appears, was ever given to any one by the petitioners. The papers in 
 ilolmes's case seem to have been referred to the Committee on Elections 
 April 5, 1S7'. (Record, Apiil 0, page 27), having been transmitted by 
 the Cleric to the Speaker, and by the Speaker laid before the House, and 
 by the House referred to the Committee on Elections. 
 
 When this reference was made nothing was said about the certificate 
 of the sitting member, and in the schedule of papers transmitted no ref- 
 erence in terms was made to such certificate. 
 
 This reference was made after the discussion in the House on the me- 
 morial of John J. Wilson (Record of March 2., 1879, pages i, 2, 3, and 
 4), in which the certificate of the sitting member was excluded from 
 the resolution of reference, and the resolution in that case was adopted 
 in form as follows : 
 
 That the memorial of John J. Wilson and nil the papers in the hands of 
 tin; Clerk relating ro rhe eleetion <>!' K 'jneviitative in Congress for the ninth Con- 
 - .mal dUirict of Iowa, on the ofh of November. 1>78, he referred to the Commit- 
 tee on Kh-rtions when appointed. 
 
 The papers which were actually transmitted to the committee and 
 are printed contain the original certificates of Mr. Sapp for the eighth 
 district and of Mr. Carpenter for the ninth district, as elected at a gen- 
 eral election held on the second Tuesday in October. 
 
 It is not perhaps material to consider whether these certificates are 
 properly oefore the committee or not; they are not any part of the 
 papers of the petitioners. As no authority in either case was given to 
 the committee t<> take testimony, the sole authority of the committee 
 rests on these references, on the rules of the House, and on the laws of 
 the United s There is no law, and no practice of the Committee 
 
 on Elections, as we understand it, authorizing the use by the committee 
 of e.f i>nrtc affidavits to determine questions of facts in deciding the 
 merits of an election case. 
 
 The power of the House to judge of the elections, returns, and quali-
 
 324 DIGEST OF ELECTION CASES. 
 
 fications of its members is ample, and it can proceed in its own way ; a 
 committee of the House has such power as is given it. 
 
 The importance of election cases demands that the testimony should 
 be taken on notice to all persons interested, with the right on their part 
 to cross examine witnesses and to exhibit testimony in reply, so far as 
 their rights may be affected by the inquiry. 
 
 This may be done under or alter the analogy of the statute relating 
 to contested elections, or by summoning witnesses before the commit- 
 tee, or in any other manner the House may direct. 
 
 None of the certificates or affidavits found in the papers in a judicial 
 court would prove themselves or be judicially recognized except the 
 certificates of the sitting members. 
 
 The committee sent notice of the pendency of these petitions to 
 the members in Congress from the State of Iowa, and some of them 
 appeared specially, without acknowledging by their appearance that 
 their rights could be determined under these petitions. The undersigned 
 agree with the remainder of the committee that chapter 8 of the Re- 
 vised Statutes of the United States, relating to contested elections, 
 has no direct application to a contest between persons claiming under 
 elections held on diiferent days, and could only be made applicable by 
 a resolution of the. House authorizing such parties to proceed after the 
 analogy of the statute and fixing in the resolution a time from which 
 the first thirty days should begin to run. 
 
 The undersigned think that the words "such election " in the third 
 line of section 103 of the Kevised Statutes mean an election contested, 
 and a person claiming to be elected on a subsequent day might not be 
 elected until more than thirty days after the result of the" first election 
 had been determined, and might not be able under the statute to give 
 any notice at all; but they think that the provisions of that chapter or 
 some analogous provisions ought in general to be made applicable to 
 any contest in which the rights of sitting members are involved, or else 
 that the Committee on Elections should be authorized to summon per- 
 sons and take testimony, with notice to the sitting members, and per- 
 haps, in a case like this, to the State of Iowa, to appear ami by testi- 
 mony and arguments be heard. The petitions in these cases should 
 not, therefore, be dismissed merely because they do not conform to the 
 statutes. 
 
 The agreement of parties has sometimes been received as to disputed, 
 questions of fact, but it has always been held that this should be done 
 with great caution, as these are not merely contests between the par- 
 ties, but the rights of the people of the district and of tire State and 
 of the people of the United States are involved and cannot be agreed 
 away. 
 
 In these cases no testimony has been taken by the committee: there 
 are no parties and no agreement of parties. Certain i'acts have been 
 stated in argument for and against the cases of the petitioners, and have 
 been conceded in argument by counsel, but the undersigned do not feel 
 at liberty to consider them as agreed facts. 
 
 It was suggested to the counsel of the petitioners that if they pro- 
 posed to prove any other facts than those set forth in their papers, they 
 should stale them ; but there was no intimation that they desired to otter 
 evidence of any other facts than those alleged in the papers. 
 
 In determining what should be done with the petitions, the under- 
 signed were of the opinion that the affidavits and certificates accom- 
 panying the petitions should be regarded as offers of proofs ; that is, 
 statements by the petitioners of the facts which they propose to prove ;
 
 HOLIES VS. WILSON. 325 
 
 aud that the committee should consider whether, if all these statements 
 of facts were taken to be true, the petitions could be maintained; that 
 if they could not, it would not be worth while to ask this Hou.se for au- 
 thority to take testimony on the subject, or to take any other action 
 than to dismiss the petitions. The statements of lavts in the case of 
 Holmes, so tar as it seems necessary to state them for the proper un- 
 derstanding of the House, are these : 
 
 At an election held at Turner's school-house, in Macon Township, 
 Holmes received 01 votes, being all the votes cast. The polls were 
 opened by two clerks and three judges of election, and one of the clerks 
 Avas the regular township clerk. The judges of election deposited the 
 poll-books with the county auditor of Taylor County. The judges and 
 clerks were sworn. 
 
 The inference is that one of the clerks and all the judges of election 
 Arere not the regularly appointed clerks and judges. 
 
 At an election held at Centre school-house, in Buchanan Township, 
 Page County, opened by two clerks and three judges of election, Holmes 
 received 30 votes, being all the votes cast. 
 
 In the affidavit of Wilson, page 4, the number of votes is printed 38. 
 
 One poll-book was returned to the auditor of Page County, and the 
 same is annexed to the papers as Exhibit A. The oaths of the judges 
 ami clerks are set ont, and the inference is that none of the clerks and 
 judges was the regularly appointed clerk or judge. The supervisors re- 
 fused to call a meeting of the board to canvass the votes (pp. 0, 7). 
 
 At an election held in Siam, at the store room of A'bert Dyche, Polk 
 Township. Taylor County, the polls were opened by two clerks and 
 three judges of election, who were sworn. Holmes received 37 votes 
 and YV. F. Sapp 1 A*ote, being all the votes cast (pp. 4, 5, 14, 15). The 
 inference is that none of the clerks aud judges of election was the regu- 
 larly appointed clerk or judge. There is no statement that any poll- 
 book was sent to the county auditor, but there is a statement that poll- 
 book marked " Exhibit C " appears to be in the same condition as on the 
 day when it was sealed up. 
 
 At an election held in Nebraska Township, Page County, at the house 
 formerly occupied by R. A. Miller for a drug store, Holmes received -8 
 votes, J. H. Chapman received votes, W. F. Sapp received 2 votes, 
 blank, 1 A-ote in all, 37 votes, being all the votes cast. The clerks and 
 judges of election were duly ssvorn and the ballot-box and poll-book de- 
 livered to Holmes. The inference is that none of the clerks or judges of 
 election was a regularly appointed clerk or judge. 
 
 It has been said that the inference is that none of the clerks or judges 
 was a regularly appointed clerk or judge, except in the case of one clerk 
 in Macon Township, Taylor County. This statement has been made 
 because it is not stated that they were, and because the oaths seem 
 to have been administered on the 5th day of November, 1878, on which 
 day neither the constitution nor the laws of loAva provide for the regu- 
 lar election of any such officers. 
 
 Each township not a city or incorporated town has three trustees, 
 elected one each year, at the general election in October, each trustee 
 holding for three years, and these trustees are judges of election in each 
 precinct where they reside ; and the clerks are the township clerks, aud 
 one elector named by them. (Section 00(5, Code of lo.va. 1873.) 
 
 But if the judges do not attend the election the electors present may 
 appoint judges, and if the clerks do not attend the judges may appoint 
 clerks. As the oaths seem to have been administered on the day on 
 which the election was held, it has been inferred that the clerks and
 
 326 DIGEST OF ELECTION CASKS. 
 
 judges of election, except one clerk, were not the regularly appointed 
 clerks or judges, but were appointed on the day of election in November. 
 
 The protest of Holmes addressed to the Clerk of the Mouse protests 
 against William F. Sapp being recognized as legally elected on the 8th 
 day of October, 1878, and against his being placed on the rolls, and 
 asks that Holmes's name may be placed on the rolls as legally elected 
 on the 5th day of November, 187S. 
 
 The result is, in the case of Holmes, that the papers, if taken to be 
 true statements, show that in these four townships certain voters got 
 together and went through the forms >f an election for Representative 
 in Congress ; that in all 171 votes were cast, of which Holmes received 
 162, Sapp 2, and Chapman (>, and there was one blank; and that these 
 votes were never canvassed by any State oflicers and no certificate of 
 election issued. In the Congressional Directory, which refers to the 
 election held in October, Sapp is put down as receiving 15,343 votes, 
 against 7,453 votes for Keatley, Democrat, and 7.7t>0 votes for H; 
 National, in all 30,5">G votes. 
 
 It does not appear that the voters of this Representative district un- 
 derstood generally that an election was to be held on the 5rh day of 
 November, being the Tuesday next after the first Monday of November, 
 for Representative in Congress, or that any attempt would be made by 
 anybody to hold such an election or that any person had notice that 
 any such election would be held, except the persons voting. 
 
 It does not appear that the governor issued his proclamation for any 
 such election, which by section 577 of the code of Iowa he is required 
 to issue thirty days before any general election, "designating all the 
 offices to be filled by the votes of the electors of the State, or by those 
 of any Congrexxional. legislative, or judicial district, and transmit a 
 copy thereof to the sheriff of each county/' 
 
 It does not appear that the sheriff gave at least ten days' notice 
 thereof, by causing a copy of such proclamation to be published in some 
 newspaper printed in the county, or if there be no such paper, by post- 
 ing such a copy in at least five of the most public places in the county, 7 ' 
 as required by section 578 of the code. 
 
 It does not appear that any registry of voters was established, or 
 that any of the regularly appointed oMieers. except one township clerk. 
 took any part in this election, or that the board of supervisors of the 
 county canvassed the returns and made abstracts thereof, as provided 
 in section 635 of the code of Iowa, or that any abstracts thereof were 
 forwarded to the secretary of state or filed by the county auditor 
 tiou. 637 of code), or that any canvass was made by the executive coun- 
 cil (sections 651, 052, code), or that any certificate of election was issued 
 under the seal of the State (section 653 of code). So far as appears 
 this might have been an election held by a few persons in only four 
 townships, without any knowledge on the part of anybody except 
 themselves that any attempt to hold an election would be made, and 
 without any recognition at all by the authorities of the State 1 . 
 
 It was stated in argument that Mr. Holmes had his ballots secretly 
 printed in Saint Louis, Mo., and that the election was in fact a secret 
 to nearly all the electors of the district, but as the committee have not 
 been authori/ed to take testimony, the uudei signed have considered this 
 as hearsay, and have not regarded it. 
 
 The special facts distinguishing the case of Wilson from that of 
 Holmes are the number of precincts in which votes were cast and the 
 number of votes cast. There are also contained in the papers of Wilson 
 the opinion of the attorney-general of the State, of Mr. James S. Me-
 
 HOLMES VS. WILSON. 327 
 
 Dill, of Mr. S. ,}. Kirkwood, of Mr. John F. Dillon, of Mr. George D. 
 Perkins, and of Mr. Reuben Noble upon the question whether the sec- 
 ond Tuesday in October or the Tuesday next after the first Monday in 
 November was the legal day to hold an election for Representatives in 
 Congress in Iowa. These opinions are all to the effect that the second 
 Tuesday in October is the only legal day for such an election. 
 
 The facts in Wilson's case deemed by the undersigned material to be 
 slated for the understanding of the House, if the statements in his pa- 
 pers are taken to be true, are these : 
 
 At an election held on Call street, in Heckart's building, Algoua 
 Township, Kossuth County, John J. Wilson received S3 votes, Cyrus 
 C. Carpenter received (),"> votes, in all 178 votes, being all the votes 
 cast. 
 
 At an election held at the ('onion school-house in Great Oak Town- 
 ship, Palo Alto County, John J. Wilson received 13 votes, being all the 
 votes cast. 
 
 At an election held at the school-house in Rutland Township, Hum- 
 boldt County, John J. Wilson received votes, being all the votes cast. 
 
 At an election held at Dakota City, in Dakota Township, Humboldt 
 County, John J. Wilson received 3L' votes, Cyrus C. Carpenter received 
 1 vote, in all 33 votes, being all the votes cast. 
 
 At an election held at Willow Glen school-house, A very Township, 
 Humboldt County, John J. Wilson received 19 votes, being all the votes 
 cast. 
 
 At an election held at school-house No. 3 in Irvingtoii Township, 
 Kossuth County, John J. Wilson received 15 votes, being all the votes 
 cast. 
 
 At an election held at Walker school-house, in Lett's Creek Township, 
 in Kossuth County, John J. Wilson received 10 votes, being all the votes 
 cast. 
 
 At an election held in the school-house in district No. 4, in Cresco 
 To'-vnsliip, Kossuth County, John J. Wilson received 2o votes. 
 
 At an election held at the school-house in Walnut Townsuip, Palo 
 Alto County, .John J. Wilson received votes. 
 
 At an election held at school-house in West Bend Township, in Palo 
 Alto County. .John J. Wilson received 20 votes, being all the votes cast. 
 
 At an election at Lott's Creek, in Humboldt County, John J. Wilson 
 received 13 votes, being all the votes cast. 
 
 At an election held at the school-house in district No. 2, Vernou Town- 
 ship. Humboldt County, John J. Wilson received 12 votes, C. C. Car- 
 penter 1 vote, in all 13 votes, being all the votes cast. 
 
 The foregoing statement purports to be certified to by the precinct 
 judges of elections and attested by the clerks. 
 
 There is a certificate of the county auditor of Kossuth County that 
 some packages purporting to be the returns from Cresco, Algoua, Lott's 
 Creek, and Irvington Townships, all in Kossuth County, were filed in his 
 office, that none of said packages has been opened, and that the board of 
 supervisors have not yet canvassed the returns. 
 
 There are two affidavits of the votes cast in Cresco Township and Ir- 
 vington Township, respectively, that one copy of the returns in these 
 townships was tiled with the township clerk and one with the county 
 auditor, and one mailed to Henry Pike. 
 
 There is a certificate of the county auditor of Palo Alto County that 
 envelopes with the returns of West Uend, Walnut, and Great Oak Town- 
 ships were filed with him, and the board of canvassers refused to recog- 
 ni/e the claim to have the votes of said election canvassed.
 
 328 DIGEST OF ELKCTION CASES. 
 
 There is an affidavit of Mr. Al. M. Adams that the county auditor of 
 Humboldt County declined to sign the annexed certificate or to attach 
 the county seal thereto, that he does not deny that the facts therein 
 stated are true, and that he gives as a leason for not signing and seal- 
 ing it that he does not think that the elections were legal, and will not 
 have- anything to do with the matter in any way. 
 
 The unsigned certificate annexed to the papers is to the effect that 
 envelopes purporting to contain the returns from A very, Rutland, Ilum- 
 boldt, Dakota, and Vernon Townships were filed with the auditor and 
 never have been opened, and (hat the records of the board of supervi- 
 sors do not show that any action has been taken thereon; and there are 
 the opinions of gentlemen upon the legal day of election \\hich "nave 
 been hereinbefore staled. 
 
 These are in substance all the papers in the case of Wilson. There is 
 nothing to show that the judges or clerks of elections were the regu- 
 larly appointed judges or clerks. 
 
 If the statements in these papers are taken to be true there were 
 votes cast in twelve townships on the 5th of November, 1878, for Repre- 
 sentative in Congress to the number of 357, of which Wilson received 
 260 and Carpenter 07. Jn the Congressional Directory, which refers to 
 the October election, Carpenter is put down as receiving 10,489 votes, 
 against 1,202 tor W. H. Brown, Democrat, and 12,338 votes for L. Q. 
 Hoggatt, National ; in all 30,020 votes. 
 
 There is the same absence of any evidence of action on the part of 
 the authorities of the State in making proclamation and giving notice 
 of the election and canvassing the votes cast alter the elections as in 
 Holmes's case, and there is no evidence whatever that it was generally 
 understood that an election for Representative in Congress was to be held 
 on the 5th day of November, or that any attempt was to be made to hold 
 any election on that day, or that it was known to anybody except the 
 persons voting that any such election was to be held. The papers do 
 show that the governor of Iowa was advised by the persons named 
 that such an election could lawfully be held only on the second Tuesday 
 of October. 
 
 The undersigned think that it is impossible to hold on these alleged 
 facts, if proved, that either Mr. Holmes or Mr. Wilson has been duly 
 elected Representative in Congress, whether the Tuesday after the first 
 Monday of November or the second Tuesday of October be the lawful 
 day for such an election, and that there is no need of taking testimony 
 in these cas s, because the facts alleged, if proved, would not entitle 
 either of tlie.se gentlemen to a seat, and that the committee should be 
 discharged from any further consideration of these petitions; and that 
 in coming to this conclusion it is not necessary to decide whether the 
 authorities of the State were right or not in determining that the legal 
 day of election was the 8th day of October, because if it be assumed to 
 be true that the 5th day of November was the legal day of election, the 
 election was not held under the sanction of the authorities of the State 
 of Iowa, was not generally known so far as appears, and was not partici- 
 pated in by such numbers of the people of Iowa that on any grounds 
 this House would be justified in declaring Mr. Holmes or Mr. Wilson 
 entitled to a seat. 
 
 These petitions, as has been said, cannot be considered as petitions 
 of citizens or voters of Iowa asking that the whole election in Iowa for 
 Representatives in Congress in October should be declared void. 
 
 They are not drawn with any such intention and pray no such relief. 
 So far as appears, if Holmes and Wilson cannot be seated they are con-
 
 HOLMES VS. WILSON. 329 
 
 tent, as citizens of Iowa, that the existing delegation of Iowa should re- 
 tain their seats. 
 
 If resolutions should be offered in the usual form declaring either Mr. 
 Holmes or Mr. Wilson entitled to a seat, the undersigned think that 
 they should be decided in the negative, and if resolutions should be 
 offered declaring Mr. Sapp and Mr. Carpenter entitled to their seats, 
 that they should be decided in the affirmative, because nothing as yet 
 has appeared to invalidate the title by which they now hold them: and 
 that as a decision of the validity of the election of Messrs. Sapp and 
 Carpenter, or perhaps of all the delegation from Iowa, is not necessary. 
 in the opinion of the undersigned, in order to make a proper disposition 
 of these petitions, a decision against them or against the whole delega- 
 tion of Iowa should not be made without formal notice to the representa- 
 tives of Iowa, and perhaps to the State of Iowa, and after taking testi- 
 mony of such facts and circumstances surrounding the election on the 
 second Tuesday of October as might properly be considered in constru- 
 ing the statutes and laws relating to the legality of an election on that 
 day. 
 
 As other members of the committee have deemed it proper to express 
 an opinion and to report on the legality of the election held on the sec- 
 ond Tuesday of October, the undersigned, although not thinking that 
 question necessarily involved in the matter before them, or that all the 
 facts and circumstances pertinent to a decision have been established 
 in a proper manner, deem it their duty to submit their views upon the 
 question, so far as can be done from what appears in the papers, with 
 some reference to the arguments. 
 
 This House will take notice that the Representatives from the State 
 of Iowa now holding their seats were elected at a general election held 
 on the 8th day of October. The certificates of Mr. Sapp and Mr. Car- 
 penter so state. 
 
 The House, if it chooses, independently of the petitions, can take action 
 upon that fact. 
 
 It was stated in argument before the committee that the governor or 
 the State of Iowa, before the electou in October, consulted the attor- 
 ney-general of the State, the justices of the supreme court, the judge 
 of the circuit court of the United States, and other lawyers of eminence 
 upon the question whether the constitution of the State of Iowa would 
 need amendment in order to change the day of election of State officers, 
 that it might be determined whether Iowa was within section 6, chapter 
 130, of the acts of 1875 of the United States, and that the opinion of 
 these gentlemen was almost unanimous that Iowa was within the ex- 
 ception created by that section. Some of these opinions appear in the 
 papers in the Wilson case. 
 
 It was stated in argument that the leaders of all the political parties in 
 the State consulted together and agreed that Iowa was within the ex- 
 ception created by that section, and that the election could legally be 
 held only in October. 
 
 It was stated in argument that the governor, in good faith, after in- 
 structing himself in every proper way, decided that the election could 
 only be held on the second Tuesday in October, and issued his proclama- 
 tion accordingly; that the people of Iowa fully acquiesced in that de- 
 cision; that the election held in accordance therewith was held without 
 protest from anybody, and was one of the fullest and fairest elections 
 ever held in that State. 
 
 That these facts are of very great significance in determining whether 
 the action of the State authorities shall be sustained is evident, but the
 
 330 DIGEST OF ELECTION CASES. 
 
 undersigned doubt whether they are properly before them, although 
 they have no reason to believe they are not true. 
 
 The bona fide interpretation of the constitution and laws of a State 
 by the authorities of a State who are charged with the duty of inter- 
 preting its constitution and laws is certainly entitled to very great 
 weight. 
 
 It was the duty of the governor to issue a proclamation thirty days 
 before the day of election of Representatives in Congress. 
 
 If section 25 of the Revised Statutes of the United States applied to 
 Iowa, then the day of election was the Tuesday next after the first 
 Monday of iSTovember. 
 
 As Iowa had not changed its day of election since the passage of the 
 act of Congress incorporated in section 25 of the Revised Statutes, if 
 its constitution must be amended in order to effect "a change in the 
 day of election of State officers in said State," then, by section <. chap- 
 ter 130, of the acts of 1875, the twenty-fifth section of the Revised 
 Statutes of the United States did not apply to the State of Iowa. 
 
 By the statutes of the State of Iowa Representatives in Congress. 
 except on the years of the Presidential election, must be elected at a 
 general election to be held throughout the State on the second Tuesday 
 of October. 
 
 Section 6, chapter 130, of the acts of the United States of 1875 is in 
 these words : 
 
 SEC. (5. That section ;> of the IN 1 vised Statutes, prescribing the time for holding 
 elections for Representatives in Congress, is hereby modified so as not to apply to 
 ;iny State that has not yet changed its day of election, and whose const itu; ion must 
 be amended in order to effect a change in the day of election of State officers in said 
 State. 
 
 It thus became the duty of the governor to determine the meaning 
 of the constitution of Iowa in the particular mentioned, and this was 
 done by him as the only authority in Iowa which, under the constitu- 
 tion and the laws of Iowa, had the right or was charged with the duty 
 of determining it, and it was done in the performance of an official duty 
 which could not be avoided. 
 
 It is the doctrine of the Supreme Court of the United States that de- 
 cisions of the highest judicial court of a State upon the meaning of the 
 State laws and constitution, when its decisions are uniform, are bind- 
 ing on that court. 
 
 The construction of the Constitution and laws of the United States 
 belongs of course to the courts of the United States in any contro- 
 versy before those courts; but in considering whether the laws and 
 constitution of a State conflict with the laws and Constitution of the 
 United States as construed by the courts of the United States, those 
 courts take the laws and constitution of the State as construed by the 
 courts of the State when their decisions are uniform. 
 
 The undersigned are not prepared to hold that the decision of the 
 highest authority of a State upon the meaning of its constitution in 
 reference to whether the day of the election of State officers is fixed by 
 that constitution or not, so far as it is material in determining the legal- 
 ity of an election of Representatives in Congress, is absolutely binding 
 upon this House. 
 
 In a report from the Committee on Elections, adopted by this House 
 April 11, 1871, in the matter of the Tennessee election (Digest of Elec- 
 tion Cases, compiled by J. M. Smith, p. 1), the committee say : 
 
 II i> a well-established and most salutary rule that where the proper authorities of 
 the Siaie unvcniment have iv>n a construction to their own constitution or statutes,
 
 HOLMES VS. WILSON. 331 
 
 that construction will l>e followed by the I-Yderal authorities. Tin- rule is absolutely 
 necessary to ti.e harmonious working of our complex (iovenmiout, State and national, 
 and your eouiiuitti e are not disposed to be the first to depart from it. 
 
 AVe are not disposed to be the first to depart from it, and we cer- 
 tainly Think that such a decision made in good faith and acquiesced in 
 at the time by the people of the State, and followed by a full and fair 
 election, should not be overthrown or questioned except for the gravest- 
 reasons, founded on an undoubting conviction that it was plainly an 
 error, and that the error had worked some substantial injury. 
 
 >.'ction 4, article 1. of the Constitution of the United States confers 
 power on the legislatures of the Slates to prescribe thetime of electing 
 Representatives in Congress in the absence of any controlling regula- 
 tions by Congress. 
 
 The provisions of the conntitution of a State cannot take this power 
 from the Icyixlnliirc of a State, and Congress cannot take from a State 
 the ri.uht to fix either by its constitution or by its laws the day of elect- 
 ing State oflicers. 
 
 The object of section (i, chapter 130, of the acts of 1ST.") was to pre- 
 vent compelling any State against the will of its legislature to have two 
 elect ions on different days, one for Representatives in Congress and one 
 for State officers. t ,j- Hse to change its constitution. 
 
 If the lcfiinhtlnn' of a State had a right under the constitution of the 
 State to fix the day of election of State officers, it could if it saw fit 
 iix the same day for the State election as that fixed by Congress for the 
 election of Representatives in Congress by section 1'.") of the Revised 
 Statutes, or it could of course Iix a different day. But if the constitu- 
 tion of the State fixed a day of election of State officers, and that was a 
 different day from the Tuesday next after the first Monday of Novem- 
 ber, the day fixed by the twenty fifth section of the lievised Statutes 
 for the election of Representatives in Congress, then, except for section 
 !, chapter 130. of the acts of iSTo. the State must have two elections, or 
 be put to the trouble of amending its constitution. 
 
 This amendment of section LM .f the Revised Statutes enabled any 
 State having such a constitution to have two elections or one, as the 
 legislature of that State desired, because after the amendment the lef/is- 
 lature of such .1 State had a right, under the Constitution of the United 
 States, to Iix any day for the election of Representatives in Congress its 
 legislature saw fir. 
 
 The reason, then, of section G, chapter 130, of the acts of 1875, as an 
 amendment tothe tweniy-tifth section of the Revised Statutes, is equally 
 applicable to a Slate whose constitution fixed the day of election of 
 some State officers as to a State whose constitution fixed the day of elec- 
 tion of all State officers. 
 
 It was not the intention of Congress, either by this or any other legis- 
 hition, to compel a State to hold its election for Representatives in Con- 
 gress on the same day as that for the election of any State officers; 
 whether the two elections should be held on the same day or on different 
 days it meant to leave to the legislature of each State to determine. 
 
 Congress e fleeted this intention by so amending section 2~> of the Re- 
 vised Statutes that it should not apply to a State whose constitution 
 fixed a day for the State election, and by thus doing Congress left to 
 the legislatures of all the States the power to make the day of election 
 of Representatives in Congress and the day of election of State officers 
 the same day or different days, as the legislature of each State might 
 choose. 
 
 To say that section 0, chapter 130, of the acts of 1875 is applicable
 
 332 DIGEST OF ELECTION CASES. 
 
 only to a State whose constitution must be amended in order to effect a 
 change in the day of election of every State officer, is against a proper 
 construction of its language, as well as against the reason of the statute, 
 and ignores the mischief it was designed to remedy. 
 
 The reason of this amendment might confine the meaning of the words 
 " change in the day of election of State officers" to "State officers" 
 elected by the people, excluding State officers elected by the legislature. 
 It may also be that the words "day of the election of State officers" must 
 be confined to the regularly recurring day of election, and could not be 
 extended to include a day of election fixed in the constitution for filling 
 unexpired terms. It is possible, too, that the words "day of the elec- 
 tion " must be held to mean a day of an election throughout the whole 
 State, although such an election might be held by districts or divisions, 
 as the election of Representatives in Congress is held by districts. 
 
 From these considerations it seems evident that if there is a day of 
 election by the people throughout the whole State fixed by the consti- 
 tution of a State for the election of some of the State officers, and that 
 day is other than the Tuesday next after the first Monday of November, 
 then section 25 of the Revised Statutes is not applicable to such State. 
 
 The provisions of the constitution of the State of Iowa, adopted in 
 the year 1857, and ever since in force, which bear most directly on this 
 question, are the following, and they are given in the order in which 
 they are found in the constitution : 
 
 ARTICLE THRKE. 
 LEGISLATIVE DEPARTMENT. 
 
 SEC. 3. Members of the House of Representatives shall be chosen every second year 
 by the qualified electors of their respective districts 011 the second Tuesday of October, 
 except the years of the Presidential election, when the election shall be held on the 
 Tuesday after the tirst Monday of November. 
 
 The term of office is two years. 
 
 SEC. 5. Senators shall be chosen for the term of four years, at the same time and 
 place as representatives. * * * 
 
 Senators are classified so that one-half, as near as may be, shall be 
 elected every two years. In this article nothing is said of the year of 
 the election. 
 
 ARTICLE FOUR. 
 
 EXECUTIVE DEPARTMENT. 
 
 Sac. 2. The governor shall be elected by the qualified electors at the time and place 
 of voting for members of the geneial assembly. * * 
 
 He holds office for two years. 
 
 SEC. 3. There shall be a lieutenant-governor who shall hold his office two years and 
 be elected at the same time with the governor. * * * 
 
 SEC. 10. When any office shall from any cause, become vacant, and no mode is pro- 
 vided by the constitution and laws for filling .such vacancy, the governor shall have- 
 power to fill such vacancy by granting a commission, which shall expire at the end 
 of the next session of the general assembly or at the next election by tbe people. 
 
 SEC. "22. The secretary of the state, auditor of state, and treasurer of state shall be 
 elected by the qualified electors and shall continue in office two years. " * * 
 
 There is nothing in this article about the day or year of the election. 
 
 ARTICLE FIVE. 
 JUDICIAL DEPARTMENT. 
 
 SEC. 3. The judges of the supreme court shall be elected bv the qualified voters of 
 the State. * *
 
 HOLMES VS. WILSON. 333 
 
 The term is four years. 
 
 SEC. 11. Judges of the supreme court and of district courts shall be chosen at the 
 general election. * * * 
 
 Tlrs is the first place where the words "general election" are used. 
 
 SKC. 12. The general assembly shall provide by law for the election of an attorney- 
 general by the people, whose; term of olilice shall he i \vo years. * * * 
 
 This is the first express provision that the general assembly shall 
 make provisions by law 1'or any election. 
 
 SEC. 13. The qualified electors of each judicial district shall at the time of electing 
 the district judge elect a district attorney. * " * 
 
 The term is four years. 
 
 ARTICLE SEVEN. 
 
 SEC. r>. But no such laws [laws iu reference to the State contracting debts] shall 
 take effect until at a ycneml election it shall have been submitted to the people. * * * 
 
 ARTICLE NIM:. 
 EDUCATION AM) SCHOOLS. 
 
 A board of education is established, consisting of the lieutenant-gov- 
 ernor and one member to be elected from each judicial district iu the 
 
 State. 
 
 SEC. 3. One member of said hoard shall be chosen by the qualified electors of said 
 district and shall hold office for 'he term of four years. 
 
 The board is classified so that one-half, as near may be, shall go out 
 every two years. 
 
 AHTICLE TEX. 
 AMENDMENTS TO THE CONSTITUTION. 
 
 SEC. 3. At the general election to be held in the year one thousand eight hundred and 
 seventy, and at each ten years thereafter, and also at, such times as the general assem- 
 bly may by law provide, the question of amending or revising the constitution shall 
 be voted upon by the electors. * * 
 
 ARTICLE ELEVEN. 
 MISCELLANEOUS. 
 
 SEC. 6. Iii all cases of elections to fill vacancies in offices occurring before the ex- 
 piration of a full term, the person so elected shall hold for the residue of the unexpired 
 term; and all persons appointed to 1V11 vacancies in office shall hold until the next 
 general election, and until iheir successors are elected and qualified. 
 
 ARTICLE TWELVE. 
 
 SCHEDULE. 
 
 SEC. ti. The first election under this constitution shall beheld on the second Tuesday 
 in October, in the year one thousand eight hundred and fifty-seven, at which time the 
 electors of t ne Stale shall elect the governor and lieut'-nant-governor ; there shall also 
 be cl.'cted at such t lection the successors of such senators as were elected at the August 
 election, in the year one thousand eight hundred and fifty-four, and members of the 
 house of representatives. * * * * 
 
 SKC. 7. The. first election fi-r secretary, auditor, and treasurer of State, attorney- 
 general, (Hxifict jn<l</ex, members of the hoard of education, district attorney, members 
 of Congress, and such State oilicers as shall be elected at the April election, in the year 
 one thousand eight hundred and lift y-sev.-n. except the superintendent of public in- 
 struction and such county officers as were elected at the August election, in the year 
 one thousand eight hundred and fifty-six, except prosecuting attorneys, shall be held 
 on the second Tuesday of October, one thousand eight hundred and fifty-eight, pro- 
 vided the time 1'or which any district judge or any other State or county officer was
 
 334 DIGEST OF ELECTION CASES. 
 
 elected at the April election, eighteen hundred and fifty-eight, shall not extend be- 
 yond the time for filling like offices at the October election, in the year one thousand 
 eight hundred and ti ft y- eight. 
 
 SEC. H. The lirst election for judges of the supreme court and such county officers 
 as shall he elected at the August election, in the year one thousand eight hundred and 
 fifty-seven, shall be held on the second Tuesday of October, in the y< ar one thousand 
 eight hundred and tilty-nine. 
 
 SEC. 10. Senators elected ;it the August election, in the year one thousand eight 
 hundred and lifty-six. shall continue in office until the second Tuesday of October, in 
 the year one thousand eight hundred and fifty-nine, at which time their successors 
 shall be elected as may be prescribed by law. 
 
 This constitution was ratified by the people August 3, 1857. One ob- 
 ject in establishing: it, as appears by the records of the proceedings in 
 the constitutional convention, was to do away with the t\vo elections 
 required by the constitution of 184(1, in Presidential years. 
 
 In the year 1850, the year before the adoption of the present consti- 
 tution, there had been held an election in April for township officers and 
 district judges, an election in August for many other State and county 
 officers and for members of Congress, and an election in November for 
 Presidential electors. Until the schedule being article V2 of the consti- 
 tution of 1857 is reached, there is nothing in the constitution itself indi- 
 cating the year in which any of the elections would be held. The lerms 
 of office were two. four, and six years. 
 
 It is plain that there must be an election every two years, but until 
 the schedule established it there was nothing to indicate on what year 
 the first election under this constitution should be held. In the absence 
 of the schedule, although there is no express provision that all the 
 officers should be elected at the first election, yet the implication to be 
 derived from section 3, article 3, in which a day of election is expressly 
 fixed in reference to the members of the State house of representatives, 
 .and is tixed expressly on the Presidential year for the Tuesday next 
 after the first Monday of November, would be that members of that 
 house would be elected on the years of the Presidential election, and as 
 that occurs on even numbered years, and as the terms of members of 
 that house are two years, the further inference from that section would 
 be that the members of the house of representatives of the State were to 
 be elected on the even-numbered years ; and applying that to the other 
 sections that have been cited, in the absence of the schedule, the infer- 
 ence would be that it was intended by the constitution to establish bien- 
 nial general elections to be held on even numbered years, namely, on 
 the years of the Presidential election, on the Tuesday next after the first 
 Monday of November, and on other even-numbered years on the second 
 Tuesday of October. 
 
 J>y the schedule it was determined, apparently for the first time, that 
 there should be annual elections; that part of the State officers should 
 be elected iu the even-numbered years and part in the odd ; and pro- 
 vision was made for fixing the year in which the first election for the 
 different officers should be held ; and this year being fixed, succeeding 
 elections of these officers, except in the case of vacancies, followed, as of 
 course, according to the respective lengths of the terms of office, which 
 in every ease were an even-number of years. 
 
 The words general election occurring in the constitution can only refer 
 to an election held on the second Tuesday of October, except in the 
 year of the Presidential election, and then on the Tuesday next after the 
 first .Monday in November, and in section 3, article 10, it is expressly 
 provided that a (jcncral election shall be held in 1870, and in every tenth 
 year thereafter which are even-numbered years.
 
 HOLMES VS. WILSON. 335 
 
 
 
 Ail argument may be, perhaps, drawn in reference to the secretary of 
 State, auditor of State, and treasurer of State from seetion 1% article 
 4, because no time for the election of these officers is therein expressed : 
 that it was intended to leave the time of their election to the legislature ; 
 but there are no provisions in the constitution giving the legislature 
 po\v< r to fix the tiim* of the election of these officers, and in section 1U 
 of article ."> the provision is that the general assembly may provide by 
 law for the election of an attorney-general by the people, whose term of 
 office shall be two years. S:c. ; and the argument is perhaps equally 
 strong that if the people did intend by their constitution that the gen- 
 eral assembly should provide by law for the election of secretary, au- 
 ditor, and treasurer of the State, they would have said so in plain terms. 
 
 The powers which the people, by their constitution, confer upon the 
 legislature are to be determined by a proper construction of' the consti- 
 tution itself, in the same manner as the regulations they have fixed for 
 themselves by that constitution, or as the rights and powers they have 
 reserved to themselves outside of the limits of that constitution. 
 
 Among the officers whose first election by section 7, of article 12. is 
 fixed for the second Tuesday of October, 1858, and even-numbered year, 
 not Presidential, are district judges, who by section 11, article .">, are to 
 be chosen at the f/eneral election, ami who held office for four years, who 
 were therefore elected thoughout the State on the second Tuesday of 
 October, 1S7S. 
 
 In a constitution in some respects so inartiticially drawn as this is, in 
 which in reference to some officers the day of election is expressly fixed 
 in the constitution, in reference to others it is provided that they are 
 to be chosen at a (/cucra! election, and to others that they are to be 
 elected by the qualified voters, but no provision is expressly made for 
 fixing the time of their election, and in reference to one of them, the 
 attorney-general, there is an express provision that the general assem- 
 bly may provide by law for his election, much weight must be given to 
 the general scope and meaning of the instrument, and we think that it 
 sufficiently appears in the constitution itself that the people of Iowa 
 intended by their constitution that there should be nniiHfil </<ncr<tl elec- 
 tion* for State offices; that these elections should be held on all but 
 Presidential years on the second Tuesday of October, and on those 
 years on the Tuesday next after the first Monday of November; and that 
 the intention of the sections in the schedule which have been cited was 
 to establish the years of the first election of the different officers. 30 
 that some might be elected each year at the annual election, the officers 
 under the old constitution continuing in office until their successors were 
 elected, and that it was not meant by this schedule to permit the legis- 
 lature to make a -hangv in the (Jay of the general election in any year 
 alter the first election. 
 
 The significance of' the expression of time in these sections of the 
 schedule is in the year and not the day. The same day is named for 
 all the years. It is conceded that on the odd-numbered years after the 
 first election there must be an election for members of the State house 
 of representatives, of one-half of the senators, of governors, lieutenant- 
 governors, and some of the judges of the supreme court, and that the 
 election must be on the second Tuesday in October; but there is nothing 
 in the constitution indicating that the provisions for the day of election 
 were meant to be different on the even-numbered years not Presidential 
 than on the odd-numbered years, or that the constitution meant to give 
 the legislature any more control over the any of "lection in even-num- 
 bered years than in odd
 
 336 DIGEST OF ELECTION CASES. 
 
 
 
 The reason for fixing- a different day on the years of the Presidential 
 elections has been stated namely, that the appointment of Presiden- 
 tial electors had been fixed by a statute of the United States for the 
 Tuesday next after the first Monday of November: but at the time of 
 the adoption of this constitution there was no law of Congress prescrib- 
 ing the time of electing Representatives in Congress, and it is not to be 
 presumed that, except on Presidential years, without any known reason 
 whatever, it was intended that the elections in the successive years 
 should be held on different days, or that the legislature should have the 
 power to change the day on even-numbered years, but not on odd. It is 
 not, of course, admitted that if the constitution of a State established 
 biennial elections to be held at a certain time on the odd- numbered 
 years, that then the twenty-fifth section of the Revised Statutes would 
 be applicable to such a State. The late constitution of California, under 
 which Representatives in Congress were elected in September in the 
 odd-numbered years, illustrates this. 
 
 The general peculiarities of the constitution of 1857 are derived from 
 that of 1840, and the particular provisions on which the decision turns 
 are similar in both. 
 
 The constitution of 1S4G provided as follows: 
 
 The members of the House of Representatives shall be ehosi n ev.Ty second year, * 
 * * oil the first Monday of August, whose Term of office shall continue two years 
 from the general election. 
 
 In this section no year of election is mentioned. 
 
 Senators shail be chosen for the term of four years at the same time and pin. 
 Representatives. * * * 
 
 They are to be classified so that one-half are to be elected every two 
 years. 
 
 A secretary of state, auditor of public accounts, and treasurer shall be elected by 
 the qualified electors, who shall continue iu office two years. 
 
 The judges of the supreme court were to be elected by the general 
 assembly, and the district judges were to be elected by the qualified 
 voters of the district in which they reside at the township election. 
 
 The qualified voters of each county shall at the general election elect one prosecut- 
 iug attorney, and one clerk of the district court, who shall be resident, &-c. 
 
 The term of office was two years. 
 
 There was no attorney-general by this constitution. 
 
 AUTICLE TWELVE. 
 SCHEDULE. 
 
 SCE. F>. The Jirfit general election under this constitution shall be held at such time 
 as the governor of the Territory by proclamation may appoint within three months 
 a ft IT its adoption for the election of a governor, two Representative* in the (.'>!.. 
 of the United S. airs (unles> t 'OII^IVSN -.'nail provide for the election of one Representa- 
 tive), members of the general assembly, and one auditor, treasurer, and secretary of 
 state. * 
 
 The office of clerk was not mentioned in this section, and no expi 
 provision was made in this constitution for the yvar of holding the gen- 
 eral election except this, which in terms related only to the first gem-nil 
 election. 
 
 Under this constitution the case of the State vs. Cadle arose (2 Green's 
 Reports, Iowa, ]>. 400). which was decided by the supreme court of Iowa 
 in 1850. The case was an information in the nature of a quo tcarranto 
 on the n lation of Abraham Smalley against Richard Cadle. Smalley
 
 HOLMES VS. WILSON. 337 
 
 claimed to have been elected clerk of the district court of the county of 
 Museatine on the first Monday of August, 1849. Cadle claimed to have 
 been elected such clerk at a general election held on the first Monday 
 of August, 1848. In the opinion it is stated that the first general elec- 
 tion was fixed by proclamation of the governor of the Territory in Octo- 
 ber, 1840, and in another place in the opinion it is referred to as having 
 been fixed in December, 1846. 
 
 At the first election the opinion states : 
 
 Several of the clerks were elu>.-en without legal notice of the election. * * * 
 Clerks wort- again elected on the first Monday in August, 1847, in some of the counties, 
 and their election was declared to be legal by an act of the general assembly approved. 
 January *<Jf>, 1^4>, and by the same act subsequent elections were authorized to take 
 place on the first Monday in August. 1S49, and biennially theieafter. 
 
 If this act was constitutional, then Smalley, the relator, was entitled 
 to the office by virtue of his election on the first Monday in August, 
 1849. Cadle's claim that he was duly elected on the first Monday of 
 August, 1848, and still held the office, rested on these propositions: That, 
 by the constitution, clerks were to be elected at the general election; that 
 by the proper construction of the constitution, the general election was 
 to take place every two years; that as the first general election had been 
 fixed by the proclamation of the governor of the Territory for the year 
 1846, by a proper construction of the constitution the subsequent gen- 
 eral elections must be held on the first Monday in August in the even- 
 numbered years thereafter, and that therefore the act of the general 
 assembly fixing the election of clerks on the odd-numbered years wa& 
 unconstitutional and void. 
 
 The court sustained this view, and, among other things, say: 
 
 But the first general election, as we have seen, was to be at such time as the Terri- 
 torial governor might appoint. That time having been fixed in December, 1846, it 
 necessarily follows that the next general election, as biennially designated by the con- 
 stitution, was on the first Monday of August, 1848, and would occur on the same Mon- 
 day on each alternate year thereafter. * * * But independent of this consider- 
 ation [speaking of the consideration of public convenience] and without going beyond 
 the explicit language of the constitution, we have united in tke conclusion that the 
 general elections authorized by the constitution are biennial, and as the first general 
 election took place in 1846, the second was held on the first Monday in August, 184d, 
 and that under the constitution the only time appointed for the election of clerks and 
 prosecuting attorney is at the general elections. 
 
 The court thus construed together the words "first Monday of Aug- 
 ust," being the day fixed for the election of State representatives, the 
 words "general election," the fact that the first general election was 
 fixed by the governor pursuant to the constitution for the year 1846, 
 and the provision that the terms of office were two years or multiples 
 of two years, and decided that by the constitution general elections were 
 fixed by the constitution for the first Monday of August on the even- 
 numbered years after the first election in 1846. 
 
 The reasoning of this opinion of the supreme court of Iowa is sub- 
 stantially that adopted in this report. A comparison of the two consti- 
 tutions shows, as has been said, that much of the language of the con- 
 stitution of 1857 was taken verbatim from that of 1846, and this com- 
 parison also accounts for the peculiar language in the constitution of 
 1857, in reference to the election of an attorney-general, an officer un- 
 known to the constitution of 1846, and for the fact that until the sched- 
 ule is reached the constitution of 1857 apparently contemplates biennial 
 elections. 
 
 H. Mis. 58 22
 
 338 DIGEST OF ELECTION CASES. 
 
 It was in view of this decision of the supreme court of Iowa, settling 
 the construction to be given to the constitution of 1840, that the framers 
 of the constitution of 18.37 acted, and it would not occur to them that 
 the same language in the new constitution as in the old, or similar lan- 
 guage, would or could receive a different construction. 
 
 We are fortified in the conclusion we have reached by the proceedings 
 in the constitutional convention of 1857. 
 
 In the debate on the third section of article three, relating to the 
 election of members of the House of Representatives, which was, so far 
 as the time of election is concerned, reported in its present form, Mr. 
 Gillespie moved to amend by providing that the elections shall be held 
 on the Tuesday next after the first Monday in November, and hi explan- 
 ation of the amendment said : 
 
 If we fix the time of the general election iu order to have the terms of offices uniform 
 we must fix the elections in October or in November ; in the region of the State which 
 I represent, onr people are dissatisfied with the numerous elections we have, and there 
 seems to be a general feeling manifested throughout in favor of placing the general 
 election on the day of the Presidential election, so as to obviate the necessity and ex- 
 pense of having two elections. 
 
 Mr. Parvin, who was chairman of the committee on the legislative 
 department, said: 
 
 I am not particular myself whether these elections are fixed in October or November, 
 but so far as I have conversed with other persons on the subject they set-in to think 
 that the weather in November is too cold and blustering for elections to be held during 
 that month, and that October wonld be a more suitable month. 
 
 It was thought by the committee that it was not necessary to have two elections BO 
 near every four year*: to remedy that they made provision that on the years of the 
 Presidential elections the general elections should be also on that day. 
 
 Mr. Palmer said: 
 
 I think this section is well enough as it is. It provides for elections being held on 
 the second Tuesday in October of each year except the years of the Presidential elec- 
 tion, when it is to be held on the day of that election. * * * As to the time, I think 
 it is well enough to have the election in October when we can do so, and not have two 
 elections coming so close together. 
 
 The objection is a very obvious one to having two elections coming close together 
 every four years, requiring voters to go, as the gentleman from Rattan has said to 
 go from twenty to twenty-five miles to the place of election, or lose their vote*. 
 * I am in favor of having our election on the second Tuesday in October in those 
 years other than the years of the Presidential election, on account of the weather and 
 the convenience of our farmers. (Constitutional Debates of Iowa, 1857, pp. 514, 515.) 
 
 Afterwards Mr. Young moved to strike out the exception of the years 
 of the Presidential election, and said: 
 
 As the section now stands, we wonld have elections for three years in October and 
 for one year in November. 
 
 Mr. Gillespie, in reference to this proposed amendment, said : 
 
 I do hope that the people of this State will not be burdened witli two elections 
 one in October and one in November every four years, and that the convention will 
 adopt the report of the committee. If the report be adopted, I am perfectly satisfied. 
 and I believe my people will be satisfied with it. because it aooomphshea the great ob- 
 ject we had in view that is. to do away with the frequent elections that caused so 
 m;i<-h trouble and exp^n-.-. 1'ages 576,577.) 
 
 In discussing the schedule (report on the schedule), in which the sec- 
 tions cited in this report were reported in their present form, Mr. Wil- 
 son said : 
 
 The committee have determined to so arrange the tickets as to divide the can- 
 didates in about equal proportions for the elections to be held upon different years. 
 * * By pursuing this course, we find that at the next October election we have
 
 HOLMES VS. WILSON. 339 
 
 to elect members of the general assembly and governor and lieutenant-governor. At 
 the election in October, 18->, \\e have ; elect The secretary, audiror, and Treasurer of 
 state, attorney-general, district judge*, district attorneys., members of Congress, board 
 ol'edui-ation. and such State otticei-s as v.-ill be elected at tlie next April election. This 
 will give a ticket of about equal size TO each year. 
 
 When we, emne to put in The lirst ticket for the judges of the supreme court to be 
 elected in "ill irivc rickets to each year of about equal proportions: for in 
 
 one year we viii have election of judges of the. supreme court, members of the general 
 : nor and lieutenant-governor, and in the other we have the remainder 
 of tLe State officers and our Co givssmen. We concluded that That was The best di- 
 vision of the Tickets, inasmuch as we were compelled to have elections in these differ- 
 ent years. (Constitutional Debates, ;.. 1 
 
 These statements seem to have been uncontradicted in the conven- 
 tion, and apparently it did not occur to the members of that body tha' 
 they had not fixed a day of election for all the years, viz, on all but the 
 years of the 1 'residential election, on the second Tuesday in October, 
 and on those years on the Tuesday next after the first Monday in No- 
 vember. 
 
 We are, therefore, of opinion that the governor of Iowa adopted the 
 right construction of the constitution of that State in deciding that it 
 did fix the day of election of State officers (with the exception, per- 
 haps, of the attorney-general), whether those State officers were to be 
 elected on the odd or even numbered years, so that it would require a 
 change in that constitution to elect State officers (who were required by 
 the State constitution to be regularly elected by the people in the year 
 1S7S), on the Tuesday next after the first Monday in November, and 
 that the election of Representatives in Congress, held in accordance with 
 the laws of the State on the second Tuesday in October, 1878, was held 
 on the day on which alone it could lawfully have been held. 
 
 In reaching this conclusion we disregard altogether the provision for 
 the election of members of Congress found in section 7, article 12, of 
 the constitution of Iowa. That provision may tend to show that it was 
 the intention of the people of Iowa that members of Congress should 
 be elected on the second Tuesday in October of the even numbered 
 years not Presidential, but the time of electing members of Congress 
 cannot be prescribed by the constitution of a State, as against an act of 
 the legislature of a State or an act of Congress, and the amendment to 
 the twenty- fifth section of the Revised Statutes of the United States is 
 confined to States whose constitutions fixes the day of election of State 
 officers in said State. 
 
 The only apparent exception has been in the constitutions which have 
 been formed by Territories, and with which such Territories have been 
 admitted into the Union as States ; but this, if it be a valid exception, 
 does not prove that Territories have the right by a constitution to fix 
 the time for electing Representatives in Congress when they become 
 States : but the authority of these provisions rests on the sanction and 
 adoption of them by Congress in admitting such Territories as States, 
 with constitutions containing such provisions. 
 
 In accordance with the views we have expressed of the manner in 
 which these petitions should be disposed of, we recommend the passage 
 of the following resolutions : 
 
 Resolred, That the petitioner. J. C. Holmes, in the matter of his pe- 
 tition asking to be admitted to a seat in the Forty-sixth Congress as a 
 Representative from the eighth Congressional district of the State of 
 Iowa,. have leave to withdraw his petition. 
 
 Resolved. That the petitioner. John J. Wilson, in the matter of his 
 petition asking to be admitted to a seat in the Forty-sixth Congress as
 
 340 DIGEST OF ELECTION CASES. 
 
 a Representative from the ninth Congressional district of the State of 
 Iowa, have leave to withdraw his petition. 
 
 W. A. FIELD. 
 
 J. WARREN KEIFBR. 
 
 W. H. CALKINS. 
 
 JOHN H. CAMP. 
 
 J. B. WEAVER. 
 
 E. OVERTON, JR. 
 
 NOTE. I do not agree to all the positions in the foregoing opinion, 
 }>ut do agree to the final result. 
 
 W. H. C. 
 
 We concur in the conclusion reached above, without fully indorsing 
 the reasoning by which it is reached. 
 
 R, F. ARMFIELD. 
 VAN H. MANNING. 
 SAML. L. SAWYER. 
 
 I concur in the resolutions recommended by the foregoing report, and 
 add the following summary of my reasons : 
 
 1. The right to contest the seat of a member of Congress and the 
 manner in which that right shall be exercised are both clearly fixed by 
 law. The members of the Iowa delegation in the Forty-sixth Congress 
 were chosen by large majorities on the 8th day of October, 1878, which 
 was the usual day for holding. State elections, and was recognized as 
 the proper day by the masses of the people. No one of the candidates 
 who opposed the sitting members iu that election has filed a notice of 
 contest. There are, therefore, no contestants under the law. If that 
 election was held on a day which was plainly in violation of the act of 
 Congress, although no notice of contest was given, any citizen of the 
 State could have protested against the seating of the delegation thea 
 chosen, and asked Congress to declare the election void. No such pro- 
 test has been filed. The farce which was enacted on the 5th day of 
 November, 1878, was not an election, and it would be wrong to dignify 
 it as such, and still worse to recognize its validity in any respect. It 
 clearly did not give the petitioners the status of contestants under the 
 provisions of the act of Congress regulating contests, and their petitions 
 cannot be construed as coming from citizens of Iowa, and asking that 
 the election of October be declared void. There is nothing, therefore, 
 in any aspect of the case, in these petitions to put Messrs. Sapp and Car- 
 penter on their defense, or to invalidate in any way their right to their 
 -seats. 
 
 2. The question whether the constitution of the State of Iowa "must 
 be amended in order to effect a change in the election of State officers," 
 is one which it is the exclusive right of the State to decide. The per- 
 sons to whom the constitution and laws of Iowa confide this decision 
 have made it, and their determination is a finality, and is conclusive on 
 -all parties. The committee have not the right to review tbe decision. 
 
 F. E. BELTZHOOVER.
 
 HOLMES VS. WILSON. 341 
 
 JANUARY 13, 1881 Mr. COLERICK, from the Committee on Elections,, 
 submitted the following 
 
 riEWS OF THE MINORITY: 
 
 The undersigned, a member of the Committee on Elections, submits 
 the following minority report : 
 
 Three questions have been submitted for our consideration: 
 
 1. Has this committee jurisdiction to investigate the matters referred 
 to in the memorials and papers presented to us, or do these cases come 
 within, and therefore to be governed by, the provisions of the statute 
 of the United States relating to and regulating the mode of procedure 
 in cases of contested elections of members of the House of Representa- 
 tives? If they do come within that statute, then we have no jurisdic- 
 tion, as it is conceded that its requirements have not been complied 
 with. 
 
 2. Was the election that was held on the 8th day of October, 1878, in 
 the State of Iowa for Representatives to Congress legal! 
 
 3. AVas the election in the Eighth and Ninth Congressional Districts 
 of Iowa on the 5th day of November, 1878, for Representatives to Con- 
 gress held on the day prescribed by law, and, if so, were the claimants 
 duly elected such Representatives? 
 
 First. These cases are not contests between persons asserting con- 
 flicting claims to seats in Congress by virtue of the same election. They 
 were not rival candidates at the same election. The memorialists dis- 
 claim any right to the seats in controversy under the election that was 
 held on the 8th day of October, 1878. They concede that if Representa- 
 tives to Congress could have been legally voted for at the election then 
 held, Messrs. Carpenter and Sapp are entitled to the seats now held by 
 them, as they each received at said election a majority of the votes cast 
 in the respective districts represented by them in Congress. They make 
 no charges of bribery, corruption^ or fraudulent voting. They predicate 
 their right to the seats in dispute by virtue of elections held in said dis- 
 tricts for Representatives to Congress at a different time than that at 
 which Messrs. Carpenter and Sapp were elected. The claimants do not 
 assume or occupy the position of contestants, and therefore, in my 
 opinion, the statute relating to contested elections is not applicable to 
 these cases. 
 
 The Constitution of the United States declares that "each house 
 shall be the judge of the elections, returns, and qualifications of its 
 own members." (Article 1, section 5.) It is provided by Rule 77 of the 
 House of Representatives, that "It sJta.ll be the duty of the Committee 
 on Elections to examine and report upon the certificates of election, or 
 other credential*, of the members returned to serve in this House, and 
 to take into their consideration all such petitions and other matters touch- 
 ing elections and returns as shall or may Represented, or come into question^ 
 or be referred to them by the House." By virtue of this rule, which was 
 adopted as an efficient aid in executing the power so conferred by the 
 Constitution, the House adopted resolutions by which the memorials of 
 the claimants in these cases, and " all papers in the hands of the Clerk of 
 the House relating to the elections of Representatives in Congress for the 
 eighth and ninth districts of loira," were referred to this committee. 
 Under these resolutions, and the rule of the House above set forth, and 
 the provision of the Constitution above cited, we are not merely vested 
 with ample power and complete jurisdiction to investigate these cases,- 
 but our duty to do so is rendered imperative.
 
 342 DIGEST OF ELECTION CASES. 
 
 Second. The Constitution of the United States declares that " The 
 times, places, and manner of holding elections for Senators and IJepre- 
 sentatives shall be prescribed in each State by tbe legislature thereof, 
 but the Congress may at any time by law make or alter such regulations, 
 except as to the places of choosing Senators." (Article 1, sec. 4.) 
 
 Under this provision of the Constitution the legislature of the State 
 of Iowa was authorized and required to prescribe the time, place, and 
 manner of holding elections in that State for Representatives in Con- 
 gress, subject to the power of Congress to alter at any time such regula- 
 tions. By virtue of. this provision of the Constitution the legislature 
 of that State did enact a law prescribing " the time, place, and manner " 
 of holding elections for Bepre&entatives, and designated tbe second 
 Tuesday in October as the time for the holding of said election. Sub- 
 sequently, in February, 1872, Congress, exercising the power conferred 
 upon it by the Constitution, altered the regulations so prescribed by the 
 legislature of Iowa, as to the time designated tor the holding of said 
 election, by the following enactment: 
 
 The Tuesday after the first Monday in November, in the year 1876, is establixi. 
 the day in each of the States and Territories for the election of Representatives ami 
 Delegates iu the 45th Congress, and the Tuesday next after the first Monday in No- 
 vember in every second year thereafter is established as the day for the election in each 
 of said States and Territories of Representatives and Delegates to the Congress com- 
 mencing on the 4th day of March thereafter. (Section 25 of the Revised Statutes of the 
 United States, 1878.) 
 
 Afterwards Congress modified said law, as follows : 
 
 That section 25 of the Revised Statutes, prescribing the time for the holding 
 tions for representatives to Congress is hereby modified so as not to apply to any State. 
 that has not yet changed its day of election, and whose constitution must be amended 
 in order to effect a change iu the day of the election of State oinrers in said State-. 
 (Section 6. chapter 130, acts of the second session of the Forty-third Congress approved 
 March 3, 1875.) 
 
 The question presented to us is, Does the State of Iowa come within 
 the exception named in said act, as modified! Must her constitution 
 be amended " in order to effect a change in the day of the election of 
 State officers in said State " ? 
 
 The constitution of Iowa provides that 
 
 The first election fur secretary of state, auditor, and treasurer of state, attoniey- 
 general, district judges, members of the board of education, district attorneys, mem- 
 bers of Congress, and such State officers as shall be elected at the April election in tin- 
 year 1857, * * * shall be held on the second Tuesday of October, 1858. (Section 7, 
 article 12.) 
 
 No provision exists in the constitution of Iowa for any subset;' 
 election of the officers above named, aiid by reason thereof the duty of 
 providing for subsequent elections of said officers devolved on the legis- 
 lature of said State, who provided therefor, by enacting that said of- 
 ficers should be elected on the second Tuesday in October, and by vir- 
 tue of this legi.ilatirf enactment all subsequent elections of said officers 
 have since then been held. 
 
 The attorney-general of Iowa, who, prior to October, 1878, was re- 
 quired by the governor of that State to examine the various provisions 
 of the constitution of the State, and render an opinion as to the proper 
 construction to be given thereto, so that it might be determined whether 
 it was necessary to amend said constitution in order to eft'ect a change 
 in the day of the election of State officers in said State, says, in the 
 opinion so rendered by him: 
 
 Our State constitution does not rix a day for the election of all State officers, but 
 it dot-s in its very term.-, iix the time for the election of governor and lieutenant-gover- 
 nor. Sections 3 and 5 of article 3 of our State constitution provide that the election
 
 HOLMES VS. WILSON. 343 
 
 for members of the general assembly shall be on the second Tuesday in October; and 
 sections '2 and : } > of article 4 provide that the governor and lieutenant-governor shall 
 be elected at the same time and place as members of the general assembly. 
 
 The time, tlieu, for the election, of two State officers is definitely fixed by the terms 
 of the constitution; but the time for the election of the other State officers is not 
 fixed, either by direct terms or by necessary implication. Hence it was by the con- 
 stitution left to the law-making power to fix the time of the election of aZ7 other State 
 officers. The constitution, as to them, has only fixed the time for the first election. 
 The fact that the constitution by it* trnus fixes the day of the election of members of the 
 general assembly, governor, and lieutenant-governor, and only fixes the day for the 
 >f the other oi'iicer>. indicates that after the "firft election" the time for 
 the election of the other officers was intended to l>e left to legislative control. 
 
 It will be noticed that, in addition to fixing the time for the election of governor 
 and lieutenant-governor and members of the general assembly generally, the.consti- 
 tution also fixes the time for the first " election." 
 
 Thus it will be seen that the constitution fixes the day for the first election of ALL the 
 officers named in it. and fixes the time for all subsequent elections of governor and lieu- 
 tenant-governor and members of the general assembly. In the article relating to the 
 executive, the time for the election of governor and lieutenant-governor is fixed; in 
 the article relating to the legislative department, the time for the election of mem- 
 bers of the general assembly is tixed: and the article relating to the judiciary pro- 
 vides thai the judges shall be chosen at the "general elections," and article 12 pro- 
 vides for their ^n--xt election.'' 
 
 The "general election" must refer to some other time than the time mentioned as 
 the day for the election of members of the general assembly, governor and lieuteuant- 
 :.or. Xo "general election" is provided for by constitution: only the time for 
 the election of two State officers and members of the general assembly is fixed. For 
 some reason the constitutional convention thought it proper that the time of this 
 election be lixed by constitutional provision, but left it to the wisdom of the general 
 assembly to say whether that should be the day for the "general election." 
 
 I think that the construction so given to the constitution of Iowa by 
 her attorney general is the correct one. 
 
 The nY.sf and U xubseyuent elections for . governor, lieutenant-gover- 
 nor, and members of the legislature were rixed and prescribed by the 
 constitution, which provides "that the first election of these officers 
 shall beheld on the second Tuesday in October, 1859, and that like 
 elections for said officers shall occur every two years thereafter/' so that 
 these- o Cheers are invariably elected in the odd numbered years, while 
 Representatives to Congress, and all officers of the State, except the 
 governor and lieutenant-governor, are elected, by leyislative enactment, 
 in the t'Ti-n numbered years; therefore, the objection that if it is held that 
 the State of Iowa does not come within the exception of the act of Con- 
 gress providing for the election of Representatives to Congress, as mod- 
 ified, that it will necessitate the holding of tiro elections in the same year 
 in that State, does not exist. 
 
 It is also urged that, because the governor of that State decided that 
 its constitution must be amended in order to elect Representatives to 
 Congress on the Tuesday after the rirst Monday in November, the de- 
 cision so rendered by him must be accepted as the true construction to 
 be placed upon that instrument. While it is true that the Federal courts 
 have repeatedly held that the construction placed upon the constitution 
 and laws of the respective States by the latest utterances of the highest 
 judicial tribunals thereof, will be respected and adopted by the Federal 
 courts (7 Wallace. 5L':3 : Wallace, ..r> : 14 Howard, 438; 23 Wallace, 
 108), yet they have never, so far as I am aware, extended the limits of 
 this rule so as to embrace decisions rendered by any other than the judi- 
 cial department of a Slate. It is not claimed that the highest or any 
 other judicial tribunal of the State of Iowa has given a construction to 
 these provisions of her constitution, and in the absence of such decision 
 we are left unrestrained to place our own construction thereon. I do 
 not think that the constitution of Iowa ' must be amended in order to 
 effect a change in the day of the election of the State officers in said
 
 344 DIGEST OF ELECTION CASES. 
 
 State, and, therefore, I believe that the election which was held in that 
 State in October for Representatives to Congress was unauthorized and 
 illegal. 
 
 Third. It follows, in my opinion, that the election should have been 
 held on the 5th day of November, 1878, in accordance with the act of 
 Congress, and under the regulations prescribed by the legislature of the 
 State of Iowa fixing the places and manner of holding elections for such 
 Representatives. 
 
 The Eighth Congressional district is composed of thirteen counties. 
 At the election held on the 8th day of October, 1878, 30,556 votes were 
 cast, while at the election held on the 5th day of November, 1878, the 
 polls were opened in only four precincts of the district, and these were 
 confined to tico of the thirteen counties composing the district, and the 
 entire vote cast at said election was 171. 
 
 The Ninth Congressional district embraces 26 counties, and the vote 
 cast in the district for Representative to Congress, at the election held 
 in October, 1878, was 38,029, while at the election held in November, 
 1878, for the same purpose, the polls were opened in only twelve precincts 
 of the disirict, and these were located in three of the ticenty-six counties 
 constituting the district, and the entire vote cast at said election was 
 357. 
 
 The elections which occurred in said districts on the 5th day of Novem- 
 ber, 1878, were held in the absence of a proclamation of the governor of 
 Iowa directing the holding of the same, and other formalities required 
 by the statute of that State in relation to such elections were not com- 
 plied with. 
 
 While, in my judgment, the failure of the governor to issue a procla- 
 mation, and the omission of other officers to perform their duties would 
 not alone invalidate the election, as their neglect or refusal to comply 
 with their duties should not result in depriving the people of the right 
 to elect their officers at the time fixed by law for that purpose, yet it is 
 quite evident, from the very small vote cast, that the voters Of the dis- 
 trict generally abstained from voting or taking any part whatever in 
 said election, and it is fair to assume that the cause of their failure ta 
 do so is alone attributable to the fact that they believed that the election 
 which had been held in October for Representatives to Congress was 
 authorized by law and legal, and that said subsequent election was un- 
 authorized and illegal, and by reason of this belief, so created, they 
 failed to participate in said election and thereby the will of the people 
 was not fairly or fully expressed at the election held in November, and 
 therefore 1 do not think that the claimants who base their right to the 
 seats in dispute under and by virture of said election are entitled to the 
 same. 
 
 If the views above expressed are correct it follows that the seats now 
 occupied by Messrs. Sapp and Carpenter, respectively, as Representa- 
 tives in Congress from the eighth and ninth Congressional districts of 
 the State of Iowa, should be declared vacant, and accordingly I submit 
 for the consideration of the House of Representatives the following res- 
 olutions : 
 
 Resolved, That neither J. C. Holmes nor William F. Sapp was law- 
 fully elected to the Forty-sixth Congress from the eighth Congressional 
 district of Iowa, nor is either of them entitled to a seat in said Congress. 
 
 Resolved, That neither John J. Wilson nor Cyrus C. Carpenter was 
 lawfully elected to the Forty-sixth Congress from the ninth Congres- 
 sional district of Iowa, nor is either of them entitled to a seat in said 
 Congress. 
 
 WALPOLE G. COLER1CK.
 
 MERCHANT VS. ACKLEN. 345 
 
 W. B. MERCHANT vs. JOSEPH H. ACKLEN. 
 ROBERT O. HERBERT vs. JOSEPH H. ACKLEN. 
 
 THIRD CONGRESSIONAL DISTRICT OF LOUISIANA. 
 
 In these cases the contestants failing to file briefs, as required by the rules of the 
 committee, and on further notice failing to show cause why their cases should 
 not be dismissed on account of such failure to file briefs as directed, the commit- 
 tee report in favor of contes: 
 
 The House adopted the report March 1, 1881. 
 
 MARCH 1,1881. Mr. SPRINGER, from the Committee on Elections, sub- 
 mitted the following 
 
 REPORT: 
 
 The Committee on Elections, to whom were referred the contested election 
 cases of W. B. Merchant vs. J. H. Acklen and Robert 0. Herbert vs. J. 
 H. Acklen, of the third Congressional district of the State of Louisiana, 
 respectfully beg leave to report: 
 
 That the notices of contest and answers thereto were referred to the 
 Committee on Elections and filed with the clerk of said committee on 
 the 13th day of April, 1879. Evidence taken in the above cases was 
 printed on the loth day of January, 1880, and copies of the same were 
 sent to the contestants, as required by the rules of the committee, by 
 the clerk of said committee, with an official notice to prepare briefs- 
 within twenty days from the 25th day of January, 1880, to which no 
 attention was given by said contestants. 
 
 On the 21st day of May, 1880, the clerk of the committee was directed 
 by resolution to telegraph to Messrs. Merchant and Herbert to appear 
 before the committee either in person or by attorney on the 29th day of 
 May, 1880, and show cause why their cases should not be dismissed on 
 account of the failure to file briefs as directed. No attention was given 
 to these dispatches, and the parties neither appeared in person nor by 
 attorneys, as notified. The said contestants were again notified by 
 registered letters, on the 22d day of December, 1880, to appear before 
 the Committee on Elections on the llth day of January, 1881, and show 
 cause why the cases should not b*e dismissed, and to this no reply was 
 made. 
 
 We therefore respectfully recommend the adoption of the following 
 resolution : 
 
 Resolved, That Joseph H. Acklen was duly elected and is entitled to 
 a seat in this House as a Representative in the Forty-sixth Congress 
 from the third Congressional district of the State of Louisiana. 
 
 Resolved, That Robert O. Herbert and W. B. Merchant have leave to 
 withdraw their papers of contest in this case. 
 
 All of which is respectfully submitted.
 
 346 DIGEST OF ELECTION CASES. 
 
 B. MOODY BOYNTON vs. GEORGE B. CORING. 
 
 SIXTH CONGRESSIONAL DISTRICT OF MASSACHUSETTS. 
 
 Contestant charges that illegal votes were cast for contest ee, and that a number of bal- 
 lots failed to designate the office for which the candidate was designed. Contestee 
 objected to the specifications of the grounds of contest because of their insuffi- 
 ciency. 
 
 Held: That had the objections been pressed and relied upon they would have been 
 sustained, as a glance at the nature of contest discloses its utter insufficiency. 
 
 All persons who could not read and write, as required by the Constitution of Massa- 
 chusetts, were not legal voters. 
 
 The presumption that sworn officers of the law have done their duty must obtain un- 
 til the contrary clearly appears. 
 
 The public law of Massachusetts created the sixth Congressional district ; and it ap- 
 pearing that there was no other "sixth district" in which any of the voters of 
 Groveland, lived except the "sixth Congressional district," nor was there a Repre- 
 sentative office to be filled in any sixth district in which the town of Groveland 
 was situated except the sixth Congressional district, ballots cast there reading "For 
 Representative, sixth district, George B. Loring, of Salem," clearly indicate in 
 writing the office for which the person voted for is designed. 
 
 The House adopted the majority report January 21, 1881. 
 
 DECEMBER 20, 1880. Mr. CALKINS, from the Committee ou Elections, 
 submitted the following 
 
 REPORT: 
 
 The notice of contest in this case is as follows : 
 
 NOTICE OF CONTEST. 
 
 NEWBURYPORT, December 2, 1878. 
 
 DEAR SIR: You are hereby notified of my intention to contest your election to the 
 Forty-sixth Congress from the sixth Massachusetts Congressional district, for the fol- 
 lowing reasons, viz : To obtain a recount of votes cast for the candidate 1 - for said office, 
 as errors are believed to exist in the returns as made. It is known that ten legal votes 
 cast in the town of Danvers were rejected in the count on pretense of having been 
 challenged, but they should be counted. It is believed many votes in other places 
 were excluded for the same reason. Names of persons were added to check-lists and 
 their votes cast and counted in the precinct of which they were not residents. ()t hers 
 were'excluded and not permitted to vote in the precinct of which they were residents 
 and legal voters. Discrepancies arc said to exist in the returns made by the returning 
 officers of the representative district. It is reported on good authority that one man 
 in the town of Amesbury voted twice, and both votes have becu counted. A large 
 number of votes were cast in several towns which failed to designate the office for 
 which the candidate was designed. It is also reported that bribery and illegal inter- 
 ference were pract iced. In some cities the returning officers did not register the voters 
 in accordance with law, and it is probable many were registered who should not have 
 been. The selectmen of Bradford, it is said, were illegally chosen, and were therefore 
 unauthorized by law to issue a warrant for an election. In the town of Marblehead 
 there were three ascertained fraudulent votes, and it is reported there were others, 
 which nevertheless have been included in the returns from that town. In the town 
 of Essex there is said to be an error in the count, and in various towns there seem 
 to be discrepancies ; and as the law does not provide for a recount in towns, it is neces-
 
 BOYNTON VS. LORING. 347 
 
 sary to contest your election- in order r<> obtain .-i : various kinds 
 
 are reported to have been practiced in Tin 1 last election, but the candidates are believed 
 to be inuocerit of them. To prevent tin- recurrence of t IK-ISO evils, ;ind t'> ascertain 
 who is legally elected to the office of Representative to Congress from the sixth Mi 
 chasetts district, I shall claim the electioi : that onice, and hereby notify v<-u toth^at 
 effect. 
 
 Respectfully, 
 
 EBEN MOODY BOYNTON. 
 
 The contestee, in liis answer, objects and excepts to the specifications 
 of the ground of contest because they are insufficient in ia\v, and he 
 es] :eci a 1 ly i eserves all right of exceptions for insufficiency. The answer 
 closes with a general traverse of any and all facts set forth in the notice 
 of contest. (See Record, pp. 1 and 2, for the notice of contest and the 
 answer.) 
 
 Had the exceptions alleged against the notice of contest for insuffi- 
 ciency been pressed before the committee, the exceptions would 110 
 doubt have been sustained. 
 
 Section 105, Revised Statutes of the United States, is as follows: 
 
 SKC. 10"). Whenever, any person intends to congest an flection of any member of the 
 'House of representatives of the United States, he shall, within thirfy days after the 
 result of such election shall havebee.u determined by the officer or board of eouvassers 
 authorized by law to determine the same. give notice, in writing, to the member whose 
 seat lie (lesions to contest of his intention to contest the name, and in such notice shall, 
 -specify particularly the grounds upon which he relies in the contest. (Revised Stat- 
 utes of the I'nited States, p. 1 - 
 
 This section of the statute provides for the procedure in contests of 
 this nature. 
 
 A glance at the notice of contest discloses its utter insufficiency and 
 Don-compliance with the section of the statute above set out. In the 
 recent case of Duffy against Mason, decided by this House, the view we 
 have taken is so clearly and ably set forth that we adopt the following 
 provisions of that report as entirely applicable to the case at bar. 
 
 The report is as follows : 
 
 McCrary, in his Law of Elections, section 343, referring to this statute, aays : 
 
 "A good deal of discussion has arisen as to what is to be understood by the words 
 'specify particularly the grounds on which he relies.' It is evident, however, that 
 these words are not easily defined by any others. They are as plain and clear as any 
 terms which we might employ to explain them. Cases have arisen and will again 
 arise, giving rise to controversy as to whether a given allegation comes up to the re- 
 quirement of this statute, and it must be for the House in each case to decide upon the 
 case, before it. It may be observed, however, that this statute should receive a reason- 
 able construction, one that will carry out and not defeat its spirit and purpose. And 
 perhaps the rule of construction which will prove, safest as a guide in each case is this: 
 A notice which is sufficiently specific to put the sitting member upon a proper defense 
 and prevent any surprise being practiced upon him i.i good, but one which fails to do 
 this is bad. (Wright >. Fuller. 1 Bartlett, 152.) 
 
 "The Houses of Congress, when exercising their authority and jurisdiction to decide 
 upon 'the election returns and qualifications' of members, are not bound by the ; 
 meal rules which govern proceedings in courts of justice. Indeed, the statute- 
 fond among the acts of Congress regulating the mode of conducting an election con- 
 ;e>t iii the House of Representatives are directory only, and are not and cannot be 
 made mandatory under the Constitution. lu practice these statutory regulations 
 are often varied and sometimes wholly departed from. They are convenient as rules 
 of practice and of course will be adhered to, unless the House in its discretion shall 
 in a given case determine that the ends of justice require a different course of action. 
 They constitute wholesome rules not to be departed from without cause." (Ibid., sec- 
 tion 349.) 
 
 While it is true that this statute should receive a liberal construction, yet it will 
 not do to permit parties to disregard its provisions. The House, in sanction ; ug its 
 violation in cases heretofore determined, has created precedents that are now fre- 
 quently and pertinently cited to justify similar infractions. This practice, if tol- 
 erated, will finally result in the virtual abrogation of the statute. The only safe 
 course to pursue is to require at least a substantial compliance with its provisions.
 
 348 DIGEST OF ELECTION CASES. 
 
 We think that the notice of contest in this case is clearly insufficient. It is too indefi- 
 nite and uncertain in its allegations. As was said in the case of Bromberg vs. Haral- 
 eon (Smith's Digest of Election Cases, page 355) 
 
 " It is too vague and uncertain to be good. The statute requires that the contestant 
 in his notice 'shall specify particularly the grounds upon which he relies in hie con- 
 test.' It is impossible to conceive of a specification of the grounds of contest broader 
 or more general in its terms. It fixes no place where any act complained of occurred. 
 It embraces the whole district in o e sweeping charge. This specification embraces 
 three general grounds of complaint, not one of which possesses that particularity essen- 
 tial to good pleading.'' 
 
 The points decided in the Duffy and Mason case exactly cover the 
 case in hand, and it is unnecessary to examine any of the other points 
 raised in the case. Fearing, however, that, unless the merits of the 
 case are taken up and examined, injustice may be done, the committee 
 have, at the expense of much inconvenience and loss of time, ex- 
 amined the questions raised, and present their views specifically on 
 each point. 
 
 CITY OF GLOUCESTER. 
 
 It is claimed that the registration law of Massachusetts requires the 
 registration of voters to cease at twelve o'clock midnight of the seventh 
 day next preceding the day of any election. (See chapter 235, section 
 2, Massachusetts laws of 1877 ; see also section 10, chapter 376, acts of 
 1874 ; also chapter 251, laws of 1878, and chapter 233, laws of 1878.) 
 
 We are inclined to take the view, in construing these statutes, that 
 the registration of voters does not, as claimed by the contestee, "cease 
 at twelve o'clock midnight of the day next preceding the day of elec- 
 tion," but that chapter 251 of the laws of 1878 extends the right of regis- 
 tration under the conditions therein named up to the opening of the 
 polls. But it is not necessary for us to decide this question, and we do 
 not, much preferring that the courts of Massachusetts shall first con- 
 strue their own statutes, and when they have undergone judicial con- 
 struction we would follow the decisions of the courts of that State. 
 
 We retain the vote of the city of Gloucester as returned. 
 
 MARBLEHEAD. 
 
 It is claimed that William H. C. Coates, jr., voted twice, and that he 
 voted for the contestee, and that one of the ballots was counted. If the 
 contention of the contestant is correct, one vote must be deducted from 
 the contestee, as it is shown that when the selectmen, in counting the 
 votes, found the two ballots together, one of them was torn up and the 
 other counted. 
 
 The vote of L. E. Woodfin is next attacked, on the ground of resi- 
 dence. It is claimed that he was not a resident of Marblehead. It 
 seems to be conceded by coutestee that Woodtiu's vote ought not to be 
 counted. 
 
 The three Hathaways, father and two sons, who voted at Marblehead, 
 are attacked on the ground that they actually lived in Salem and kept up 
 a nominal residence in Marblehead. As to Benjamin G. Hathaway, sr., 
 if it be conceded that he voted at Marblehead, it is not shown for whom 
 he voted. As to George G. Hathaway and Benjamin G. Hathaway, jr. T 
 it is conceded they voted at Marblehead, and voted for the contestee. 
 Kesidence or domicile is to a great extent a question of intention, and a 
 liberal construction of the statutes of Massachusetts on that subject, we 
 think, will not justify us in finding the two latter-named persons to be 
 illegal voters.
 
 BOYNTON VS. LORIXG. 349 
 
 DANVERS. 
 
 The ten challenged votes which were returned from this town and, it 
 is claimed, were not counted for the contestant, remain in some doubt. 
 Exhibit B, page 23 of the able brief of coutestee's counsel, contains a 
 certified copy of the report of the executive council relative to the count- 
 ing and tabulating of the votes in the sixth Congressional district of 
 Massachusetts. It would seem, by an examination of that document, 
 that there were ten challenged votes returned from Danvers which were 
 cast for the contestee and not counted, but by an examination of the 
 testimony of Josiah Ross and Otis F. Putnam (pages 12 and 13 of the 
 record), it appears these ten votes were, in fact, counted. 
 
 The law r of Massachusetts requires that when a vote is challenged, 
 the voter offering to vote shall write his name upon the back of the 
 ballot, and the law also requires that the party's name who challenged 
 him shall be written thereon and put into a separate envelope and re- 
 turned as a " challenged vote '' ; and the law also requires all challenged 
 votes to be counted if the voter insists upon voting, after being chal- 
 lenged. This, we think, was not done in these cases. Inasmuch as it 
 is not necessary to decide the questions involved in these votes, we de- 
 cide nothing concerning them. 
 
 WEST NEWBUEY. 
 
 It is claimed that the vote of James Furgison should be counted for 
 contestant. We do not think the evidence sufficient to justify us in 
 counting it for either party. 
 
 As to the vote of Sheedy MacNamara, he probably voted under the 
 idea that he would be able to enlist the active support of certain promi- 
 nent citizens of the town in his behalf in getting him discharged from a 
 prosecution for the violation of some of the laws of Massachusetts then 
 pending against him. If his testimony is to be considered of sufficient 
 weight to establish anything, it would seem to show that he applied to 
 one or more of the selectmen for their influence in getting the prosecu- 
 tion dismissed, and offered for this influence to vote a certain ticket. 
 Giving this testimony due weight, if it shows anything it shows simply 
 that he voted a ticket that he would not have voted had he been free 
 from the charge thus hanging over him. We do not think we could 
 count his vote for the contestant, but would rather throw it out entirely 
 as being tainted and not a perfectly free ballot. 
 
 It is claimed that some man as he voted said, "Here's a vote for 
 Sheedy." It is also claimed that Sheedy MacNamara influenced certain 
 of his friends, this being one of them, to vote the ticket upon which the 
 name of the contestee was printed, under the idea that by so doing 
 Sheedy was to escape prosecution, and that therefore the vote of the 
 man who shouted at the time he voted " Here's a vote for Sheedy" 
 should be counted for the contestant. In this view of the case we can- 
 not agree. The evidence is entirely insufficient to establish the fact 
 that the man voted, or if he did vote, for whom he voted, or that he was 
 improperly influenced to vote as he did. 
 
 AMESBTJEY. 
 
 The constitution of Massachusetts prescribes the qualification of elec- 
 tors. Among the qualifications it is made necessary that before a 
 person shall be allowed to vote he shall be able to read and write in the
 
 35-) DIGEST OF ELECTION CASES. 
 
 English language ; and the registry law of 1874 was designed to more 
 effectually carry out this provision of the constitution. We have noth- 
 ing to do with the policy of the law, but simply to enforce that which 
 the people of Massachusetts enacted into statutes for their guidance. 
 It is strenuously urged that persons whose names had been upon the 
 registry lists previous to the general election of 1878, and had been 
 recognized as voters, and had voted at several preceding elections, 
 could not be subjected to the test of being required to read and write in 
 the presence of the registration officers as a condition to being registered. 
 We cannot agree to this construction of the law relative to the duties 
 of the registration officers. We think that it is a reasonable regulation, 
 that the officers in charge of registration should see to it that persons 
 offering to vote possess the necessary qualifications ; and we cannot 
 see that, because persons not qualified to vote have been allowed to 
 violate the law on one or more occasions, they can be heard to plead 
 such violation as a bar to the enforcement of the law against them there- 
 after. Whenever the disqualification of voters appears, it is clearly the 
 duty of the registration officers to refuse to register them. If the regis- 
 tration officers refuse in an illegal way to register this class of persons 
 or give a wrong reason for their refusal, still this would give such per- 
 sons no right to vote while they admit that they are clearly disqualified 
 under the constitution. We therefore hold that all persons who could 
 not read and write, as required by the constitution of Massachusetts, 
 were not legal voters, and cannot be heard to complain of any technical 
 violation of law by the registration officers, whereby they were deprived 
 of registration, while admitting at the same time that they did not pos- 
 sess the constitutional qualifications of electors. 
 
 As we have said, we have nothing to do with the policy of the laws 
 of Massachusetts; her own citizens must take care of that ; all we have 
 to deal with is the enforcement of the law as we find it. 
 
 This disposes of the claim of the contestant of the voters of the town 
 of Amesbury. 
 
 HAVERHILL. 
 
 As to the forty-two printed ballots with Boynton's name erased, 
 which are claimed to have been discovered upon a recount or re-e^ami- 
 nation of the ballots, we do not think the evidence sufficient to justify 
 us in finding that the votes were originally thrown for Mr. Boynton and 
 afterwards corruptly changed. The presumption that the sworn officers 
 of the law have done their duty must obtain until the contrary clearly 
 appears. 
 
 As to the defective votes, we have not time to set out each one spe- 
 cially, but agree that eight votes should be added to the sitting mem- 
 ber's returned vote, and fifteen to the contestant's returned vote. There 
 should also be deducted from the contestee's returned vote one other 
 vote, because the voter had received aid from the town within two years, 
 and under the law was not entitled to vote, and the table would then 
 stand as follows : 
 
 Loriug 10, 339 
 
 Add defective votes B 
 
 lu. :',47 
 
 Deduct Coau-'s \ n- 1 
 
 Deduct Woodfin'* vote .. .1
 
 BOYNTON VS. LORING. 351 
 
 Deduct MeNamara'? vote 1 
 
 ]>uupei J 8 vote 1 
 
 10, 343 
 
 Boynton 1U, ^t> 
 
 Add defective vo;<-s 15 
 
 10,241 
 
 GROVELAND. 
 
 The returned vote of this town is stated as follows: 
 
 Loring 158 
 
 Boynton 130 
 
 It is admitted that one hundred and thirty-eight (138) ballots were 
 counted for the contestee, the designation upon which ballots was as fol- 
 lows : " For Representative, sixth district, George B. Loring, of Salem" 
 It is claimed that under the law of Massachusetts this was not a sufficient 
 designation of the office, and that the ballots should not have been 
 counted for the sitting member as votes for the office of Representative 
 in Congress from the sixtli Congressional district of Massachusetts. 
 
 The law of Massachusetts, chapter 7, section 13, is as follows: "No 
 vote shall be counted which does not clearly indicate in writing the office 
 for which the person voted for is designed." The word "writing," as 
 it occurs in that section, under another statute of Massachusetts is al- 
 lowed to include printing, as well as any other mode of representing 
 words and letters. AYe do not think the law of Massachusetts changes 
 the general rule with reference to the designation which must appear 
 upon all ballots in order to make them effectual. The words, "No vote 
 shall be counted which does not clearly indicate," &c., adds nothing to 
 the general rule of law. which requires the election officers to reject any 
 vote when either the name of the person intended to be voted for or the 
 office which the voter intended the person voted for to fill does not 
 appear from the ballot itself. That is to say, where there is such am- 
 biguity in the writing or printing of the name of the person voted for, 
 or of the office for which he is a candidate, that it is impossible to tell 
 from the ballot itself what the name of the person intended to be voted 
 for is, or the office which the voter intended him to fill, the ballot must 
 be rejected, and no extrinsic evidence can be heard to supply the 
 defect. 
 
 The public law of Massachusetts created the sixth Congressional dis- 
 trict. There was no other "sixth district" in which any of the voters 
 ofGroveland lived except the "sixth Congressional district," nor did 
 they live in any other sixth district, nor was there a Representative office 
 to be filled in any sixth district in which the town of Grovelaud wa& 
 situated except the sixth Congressional district. 
 
 So it seems to us, in the light of the public law of Massachusetts 
 creating this sixth Congressional district, and the geographical loca- 
 tion of Groveland, and the ballot itself, with the designation of "Rep- 
 resentative sixth district,'' all considered together, makes the designa- 
 tion sufficient on the ballot to indicate the office which the voter de- 
 signed when he east the ballot, and is within the true interpretation 
 and meaning of the law of Massachusetts, when it declares that "the 
 ballot shall clearly indicate tbe office for which the person voted for is 
 designed."
 
 352 DIGEST OF ELECTION CASES. 
 
 Judge Cooley, in his work on Constitutional Limitations, lays down 
 the following general proposition as being the law relating to this sub- 
 ject: 
 
 Every ballot should be complete iu itself, and ought not to require extrinsic evi- 
 dence to enable the election officer to determine the voter's intention. Perfect cer- 
 tainty, however, is not required in these cases. It is sufficient if an examination 
 leaves no reasonable doubt upon the intention, and technical accuracy is never re- 
 quired in any case. The cardinal rule is to give effect to the intention of the voter 
 
 whenever it is not left in uncertainty. 
 
 ***** 
 
 The name on the ballot should be clearly expressed and ought to be given fully. 
 Errors in spelling, however, will not defeat the ballot if the sound is the same ; nor 
 abbreviations, if such are in common use and generally understood, so that there can 
 be no reasonable doubt of the intent. * * * 
 
 As to extrinsic evidence and what may be considered by the election 
 board iu determining from the ballot who and what was intended by 
 the voter, the author says : 
 
 We think evidence of such facts as may be called the circumstances surrounding the 
 election, such as who were the candidates brought forward by the nominating con- 
 vention, whether other persons of the same names resided in the district from which 
 the officer was to be chosen; and, if so, whether they were eligible or had been named 
 for the office * * * is admissible for the purpose of showing that an imperfect 
 ballot was meant for a particular candidate, unless the name is so different that to 
 thus apply it would be to contradict the ballot itself, or unless the ballot is so defect- 
 ive that it fails to show any intention whatever ; in which cases it is not admissi- 
 ble. Cooley's Constitutional Lim., 609 et seq. 
 
 See, also, McCrary on Elections, section 395. 
 
 There are other matters alluded to, botli by the counsel for contest- 
 ant and counsel for contestee matters which are of grave importance, 
 and will, at the proper time and place, evidently receive the considera- 
 tion which their gravity demands; but we do not consider it our duty 
 to decide the questions thus urged upon us, and unanimously agree 
 that they cannot affect the question at issue between the two parties in 
 this contest. 
 
 We are also of opinion that the tabulated statement hereinbefore 
 giveti shows that the sitting member is entitled to retain his seat. 
 
 We therefore recommend the adoption of the following resolution : 
 
 Resolved, That George B. Loring is entitled to retain his seat in the 
 Forty-sixth Congress as a member from the sixth Congressional district 
 of the State of Massachusetts, and that E. Moody Boynton is not enti- 
 tled thereto. 
 
 W. H. CALKINS. 
 
 We concur in the result declared by the foregoing report. 
 
 SAM. L. SAWYER. 
 W. G. COLEEICK. 
 W. M. SPRINGER. 
 
 E. C. PHISTER, 
 EMORY SPEER. 
 VAN H. MANNING. 
 R. F. ARMFIELD. 
 
 J. WARREN KEIFER. 
 
 F. E. BELTZHOOVER, 
 JOHN H. CAMP. 
 
 E. OVERTON, JR. 
 
 I agree, except as to the opinion expressed on the registration law. 
 The vote of the person who received aid from the town within two 
 years, but who was not receiving aid at the time of the election, should 
 be counted. 
 
 W. A. FIELD.
 
 JBOYNTON VS. LORING. 353 
 
 DECEMBER 21, 1880. Mr. WEAVER, from the Committee on Elections, 
 submitted the following as tin 1 
 
 VIEWS OF THE X1XOBITY: 
 
 1 cannot concur in the report of the majority of the committee in this 
 case. 
 
 Contestee claims his election by 102 majority. 
 
 The report of the majority of the committee sustains this claim and 
 is clearly wrong. 
 
 At Marblehead, seven illegal votes were counted for contestee, to wit, 
 two votes cast by AV. H. C. Coates, the votes of the three Hathaways, 
 one of two folded ballots, and the admitted illegal vote of Woodflu. 
 
 I think the testimony is ample to sustain the charge of illegality as 
 to all these votes. 
 
 The evidence of John E. Davis and others, pages 7, 10, and 12 of the 
 record, establishes the fact that Coates voted two separate ballots, and 
 the ballots cast by him, in my opinion, cannot be confounded with the 
 folded tickets found in the box. 
 
 As to the three Hathaways, the testimony clearly shows that they had 
 no residence at Marblehead and were not entitled to vote there. They 
 nevertheless did all three vote for contestee. (See pages 16 to 19 and 
 36 of the record.) 
 
 DANVERS. 
 
 At this polling place ten votes for contestant were challenged, but 
 the challenges were not made good. These votes were not counted, as 
 they should have been, for contestant. 
 
 It is clear from the official report of the ex-council of Massachusetts 
 (see record, page 23), relative to the counting and tabulating the vote 
 of the Oth district, that these votes were left out of those counted for 
 contestant. 
 
 WEST NEWBURY. 
 
 James Ferguson's vote was offered, and refused on the ground that, 
 although his ta\"s were all paid, his name by a clerical error and omis- 
 sion was left off the list. As the law quoted from Massachusetts stat- 
 utes by contestant's counsel permits "to correct a clerical error or 
 omission'" in the townships even on election day and after the opening 
 of the polls, therefore his name should have been replaced and his 
 offered vote must be counted for the contestant. The case is remarka- 
 ble, as it was applied to a well known and unexceptionable citizen voter, 
 a fanner who had paid his taxes, and whose farm adjoined Mr. Boyn- 
 ton's. lie publicly expressed his desire to vote for Mr. Boyiiton, and 
 no reason has been assigned for his disfrauchisemeut, the selectmen 
 now acknowledging their error. It is in the uncontradicted testimony 
 of Ferguson that two other citizens, named Heath and Dorkius, desir- 
 ing to vote for Boynton, were disfranchised in the same manner the 
 same day, and as the contestee was present in counsel and did not at- 
 tempt to rebut it, their votes should also be counted for the contestant. 
 
 The case of Sheedy McNamara, for twenty-eight years a voter in that 
 town : was made to vote against his party, his friends, and his conscience 
 on fear of three mouths' solitary confinement for simple drunkenness, 
 third offense (see statutes of Massachusetts, quoted); a man of educa- 
 tion, as claimed by counsel of contestant, who had been a leader, many 
 H. Mis. 58 23
 
 354 DIGEST OF ELECTION CASES. 
 
 years back, among the Irish citizens, having fallen into the evil habit 
 of drink, was thus placed within reach of the severe laws of Massachu- 
 setts. Receiving information that the warrant was held over him, when 
 asked by a former town officer, and a Republican of influence, why he 
 and the Irish were going to vote for the contestant's party, replied that 
 jf they would quash the indictment, and not arrest him on election day,, 
 he would vote the Eepublicau ticket. 
 
 The promise was made, and subsequently he applied to the select- 
 men to protect him from the serving of the warrant on election day, 
 promising to vote their ticket and use influence with his friends to 
 vote the same for him. One of the selectmen asked him how many 
 votes he could get. He replied, he might get more than he expected. 
 They told him to come down, and they would ask the sheriff not ta 
 arrest him ; one selectman saying he would speak to the officer not to 
 arrest him, and the other nodded assent. McXainara voted an open 
 Eepublican ballot in the presence of the people, holding it up, and say- 
 ing, "It weighs ten pounds, for I am voting against my conscience ! n 
 
 He testifies that he voted for Loring but desired to vote for Boynton. 
 His brother-in-law did the same, saying, as he voted his own ballot, to 
 the selectman, "Here is a vote for Sheedy." If these voters were good 
 enough to vote for the Eepublican candidate under the terror of a dun- 
 geon, such influence to change his vote is a crime against the freemen 
 of Massachusetts. We trust it is never to be repeated in a laud that 
 has done so much for freedom and humanity. Taking their two votes- 
 from Loring and adding to those that have preceded, counts a change 
 of seven votes in favor of contestant. To what further extent this pe- 
 culiar species of intimidation was carried on at this polling place will 
 probably never be known. We next come to 
 
 AMESBURY. 
 
 The evidence shows that the large woolen mills had been idle for a 
 few years, and that something more than a thousand hands were unem- 
 ployed, with its resulting poverty and misery. 
 
 The selectmen did not give proper opportunity for the registry of 
 names as by the laws cited in this case required; they enrolled the 
 names of several who were disqualified by the educational and pauper 
 clause when men promised to vote their Eepublican ticket, and refused 
 to register or permit to vote, among others, fifty-five old voters at one 
 time whose taxes were paid and who, being old voters, had previously 
 exercised their legal rights. The statutes of Massachusetts, disfran- 
 chising the illiterate, permit voters who were such at the time the law 
 was adopted to vote. Neither can any taxpayer's name be dropped 
 from the voting-list without examining-and ascertaining his disqualifi- 
 cation. 
 
 This was done to a degree which might throw out the entire vote of 
 Amesbury, giving fifty-two votes to the contestee; or if the votes of 
 these old voters, whose taxes the selectmen received and then disfran- 
 chised, be counted, with three illegal votes deducted from Loring, it 
 gives 55 votes to the contestant. It appears probable from the evidence 
 that the usual liberal previous conduct of elections would have secured 
 the contestant's election without further reference to any town in the 
 district, and your committee submits it is his duty to check the severity, 
 injustice, and illegality practiced upon these poor men, waiting for 
 years in misery for the mills to start. 
 
 The Statutes of Massaschusetts, constitutional amendment, section 13, 
 chapter 7, page 57 :
 
 BOYNTON VS. LORING. 355 
 
 "ART. XX. No person shall have the right to vote or be eligible to 
 office under the constitution of this commonwealth who .shall not be 
 able to read the constitution in the English language and write his 
 name: provided, however, that the provisions of this amendment shall 
 not apply to any person prevented by a physical disability from com- 
 plying with its requirements, nor to any person who now has the right 
 to vote, nor to any person who shall be sixty years of age or upwards 
 at the time this amendment shall take effect." Adopted 1857. 
 
 HAVEKHILL. 
 
 In the city of Haverhill, it is claimed by brief of counsel for contest- 
 ant, important changes were made in the telegraphic report of the result. 
 We only know that the official recount and examination of the ballots 
 occurred November 8, 1878. At this second examination the discrepancy 
 between the ballots for governor and for Congressman was rendered 
 still more suspicious by the discovery of forty-two printed ballots that 
 had been deposited in the boxes for Mr. Boyuton with his name erased 
 by pencil, left blank, and no other name substituted. As there were, 
 besides, both a Democratic and Eepublicau candidate running, it is mani- 
 fest a voter desiring to defeat Mr. Boyutou by using his pencil, after 
 erasure would have substituted the name of some opponent, as time 
 would have permitted the individual voter. If the votes were tampered 
 with about supper-time on the evening of election, as suggested by coun- 
 sel in first brief, and when the telegraphic reports he claims showed the 
 change that night, it is a wrong that ought to be righted. Mr. Joseph 
 Ridgway's testimony is important on account of his experience as al- 
 derman and poll-inspector, and he is at present one of the school board 
 of that city. He examined the erased ballots and assisted in the second 
 official recounting. He was the legislative candidate on the Democratic 
 ticket, and, having charge of the vote-distributors for the Democratic 
 and Greenback party in the city of Haverhill, had personal and official 
 knowledge from the messengers in every ward, and visited each ward 
 personally during the election-day. He swears he heard of no such bal- 
 lots being voted, or blank erasues, as substitution would count doubly; 
 therefore, such wholesale destruction seems a fraud. Owing to the in- 
 tensity of the opposition indicated in this election, we incline to the 
 belief that these forty-two ballots were voted without any erasure. As- 
 suming that we are correct in our views herein expressed, the table will 
 stand as follows : 
 
 Loring 10, 339 
 
 Add defective votes ... 8 
 
 10,347 
 Deduct illegal vote at Marblehead 7 
 
 10,340 
 Deduct at West Newlmry : 
 
 Sheedy McNamaru 1 
 
 Sheedv's brother-in-law 1 
 
 2 
 
 10,338 
 
 Boyntou 10,226 
 
 Add defective votes... 15 
 
 10,241 
 
 Add for Danvers, challenged votes 10 
 
 Add West Newburv .. 3
 
 356 DIGEST OF ELECTION CASES. 
 
 Add Amesbnry 55 
 
 AddHaverhill 42 
 
 This calculation clearly elects contestant, to say nothing of the fact 
 that 138 ballots were counted for contestee at Groveland, the desig- 
 nation upon which was as follows: "For Representative sixth district, 
 George B. Loriug, of Salem." It is claimed, and we think with much 
 propriety, that under the laws of Massachusetts this was not a sufficient 
 designation of the office, and that the votes should not have been counted. 
 The law of Massachusetts, chapter 7, section 13, is as follows: "No vote 
 shall be counted which does not clearly indicate in writing (or printing) 
 the office for which the person voted for is designated." The ptoin 
 meaning of this law is this: the office must be "clearly indicated" on 
 the ballot itself, and cannot be made to appear by other and extrinsic 
 testimony. The law is clearly mandatory, and the counting of such bal- 
 lots is inhibited. 
 
 There are ten legislative districts numbered six in Massachusetts to 
 which these ballots could as readily be made to apply. There are three 
 sixth districts within the sixth Congressional district. (See testimony 
 of Joseph Eidgeway, pages 87, 88, of the record.) 
 
 We now approach another proposition of vital importance both to the 
 State of Massachusetts, to the country, and to the contestants ; and I 
 will embody the observations of the learned counsel for contestant, Gen- 
 eral Butler, in relation to this matter, and make them my own. They 
 state the propositions and facts with great clearness and force. 
 
 ENFRANCHISEMENT OF CITIZENS. 
 
 By an amendment to the constitution of Massachusetts, Article XX 
 (page 38, General Statutes), adopted the 3d day of May, 1857, it is 
 provided as follows: 
 
 No person shall have a right to vote or be eligible to office, under the constitution 
 of this commonwealth, who shall not be able to read the constitution in the English 
 language, and write his name. 
 
 Then follows the provision as to physical disability and age. 
 
 This article was adopted by the legislature of 1854-'55, and ratified 
 by the people on the 23d day of May, 1857, by a vote of 23,833 in favor, 
 and 13,746 against, out of some 150,000, the then voters of Massachu- 
 setts. 
 
 Under it the most learned professors of Europe, coming" here and 
 taking upon themselves the duties and privileges of citizens, could not 
 vote, unless they were able to read English. It attracted no attention, 
 and has not been enforced by a statute until since 1874, when the domi- 
 nant party in Massachusetts began to fear for their majority. 
 
 By the official report of the Masachussetts census bureau of the State 
 census, taken in 1875, it appears that there were 449,680 taxed persons, 
 called "ratable polls," i. e., of 21 years of age and upwards, of which 
 number 2,539 were "idiotic" and "insane," 3,578 were convicts, 2,383 
 were paupers, 79,136 were aliens ; and 31,444 aliens, and 3,153 native 
 Dorn, total 34,597, were classed under the head of " illiterate," which 
 means not able to read the constitution in the English language and 
 write their names. It also appears that there were 351,113 names on 
 the voting-lists. 
 
 Now, the population of Massachusetts in 1870 was 1,457,352 by the 
 United States census. The whole population by the census of 1875 was
 
 BOYNTON VS. LOSING. 357 
 
 1,651,652, makiug^an increase of 194,300, or 13.33 percentage of gain. 
 Assuming that the" percentage of increase of population from May, 1875, 
 to November, 1878, was the same as it was from 1870 to 1875 (in the pro- 
 portion of the lengths of the two periods of time covered by these dates), 
 although in fact the gain would be considerably greater, and that there 
 would be a corresponding increase in the number of ratable polls, of 
 voters, and of each of the prohibited classes, we have the following 
 table, showing first the statistics under these several heads, as reported 
 in the Massachusetts census for 1875, and secondly the estimated gain 
 of each class up to November, 1878 (three and a half years), on a calcu- 
 lated increase of 9 per cent, for that period : 
 
 May, \87b.-Table. 
 
 Ratable polls, i. f., males above twenty years .............................. 449,686 
 
 Number of voters, native-born ............................. 281,842 
 
 Number of voters, foreign-born ............................ 69,271 
 
 -- 351,113 
 Number of illiterate, naturalized ......................... 13, 478 
 
 Number of illiterate, aliens ................................ 17,966 
 
 -- 31,444 
 Number of illiterate, native-born .................................. :% 153 
 
 Number of other aliens ............................................ 61, 170* 
 
 Number of male paupers ........................................... 2,388 
 
 Number of male convicts .......................................... 3, 578 
 
 Number of idiotic and insane ...................................... 2, 539 
 
 455, 385 
 Number supposed to be under 21 years old .......................... 5, 699 
 
 - 449,666 
 r, 1878. Table showing increase. 
 
 Ratable polls ............................................................. 490,158 
 
 Number of voters, native-born ............................. 307, 208 
 
 Number of voters, foreign-born ............................ 75,505 
 
 -- 382, 713 
 Number of illiterate, naturalized .......................... 14, 691 
 
 Number of illiterate, aliens ................................ 19, 583 
 
 - 34,274 
 Number of illiterate, native-born .................................. 3, 437 
 
 Number of other aliens ........... ^ ____ .. .......................... 66, 675 
 
 Number of male paupers .......................................... 2, 603 
 
 Number of male convicts .......................................... 3, 900 
 
 Number of idiotic and insane ...................................... 2,768 
 
 496, 370 
 Number supposed to be under 21 years old 6, 212 
 
 490, 158 
 
 By the Massachusetts census of 1875 the number of ratable polls was 
 449,687. Adding 13 percentage of gain from 1875 to November, 1878, 
 gives us 490,158 ratable polls at the time of this election. Applying 
 the same percentage to the illiterate native-born, aliens, paupers, con- 
 victs, idiotic, and insane, we should deduct from said ratable polls 
 113,657, leaving 376,501 ratable polls November, 1878. Allowing four 
 per cent, for stay-at-homes, 15,060, leaves 361,441, of whom but 256,332, 
 being but 67 per cent., voted, one-third of the voting population being 
 disfranchised. 
 
 The whole number of votes cast in the State in the election of 1878 
 was 256,332. 
 
 From this table may be deduced the following startling facts: 
 
 That of the 376,501 citizens of the United States, made so by the 14th 
 amendment (allowing that four per cent, of the total vote of the State 
 remained away from the polls), 136,859 were disfranchised from other
 
 358 DIGEST OF ELECTION CASES. 
 
 causes than criminality, idiocy, and insanity, the causes being what are 
 known as "illiteracy," failure to pay a tax, and pauperism. 
 
 By section 1, chapter 376, of the law of 1874, every male citizen twenty- 
 one years of age and upwards (except paupers, persons under guardian- 
 ship, and persons excluded by "article twenty of the amendments to 
 the Constitution), who has resided in the State one year, and within 
 the city or town in which he claims a right to vote six months next pre- 
 ceding any election of city, town, county, of State officers, or of Kepre- 
 sentatives to Congress, or electors- of President, and Vice -President, 
 and who has paid by himself, his parent, master, or guardian, a State 
 or county tax, assessed upon him in this State within two years next 
 preceding such election, and every citizen exempted from taxation, hut 
 otherwise qualified, shall have a right to vote in all such elections; and 
 no other person shall have such right to vote." 
 
 Thus it will be seen that, by the constitution and la\vs of Massachu- 
 setts, 105,109 persons are disfranchised, in contravention of the 1st sec- 
 tion of the 14th amendment to the Constitution of the United States, 
 which was adopted by the State of Massachusetts prior to the 21st day 
 of July, 1868, when it was declared adopted by resolution of Congress, 
 which ratification has never been withdrawn by her, and so is at least 
 binding upon Massachusetts. This section is as follows: 
 
 All persons born or naturalized in the United States, and subject to the jurisdiction 
 thereof, are citizens of the United States, and of the State wherein they reside. No 
 State shall make or enforce any law which shall abridge the privileges or immunities 
 of citizens of the United States, nor shall any State deprive any person of life, liberty, 
 or property without due process of law, nor deny to any person within its jurisdiction 
 the equal protection of the laws. 
 
 Now, is the right to vote one of the "privileges or immunities" of a 
 citizen of the United States ? That is answered by section 2 of the same 
 article, which provides a penalty against the State for depriving a citi- 
 zen of a right to vote at any election, as follows (see, also, 23 Pick. K., 
 308, where it is decided to be a privilege, per Shaw, C. J.) : 
 
 But when the right to vote at any election for the choice of electors for President 
 and Vice- President of the United States, Representatives in Congress, tin 1 executive 
 and judicial officers of a State, or the legislature thereof, is denied to any of the male 
 inhabitants of such State, being twenty-one yars of age and citizens of tin: United 
 States, or in any way abridged, except for participation in rebellion, or other crimes, 
 the basis of representation shall be reduced in the proportion which the number of 
 such male citizens shall bear to the whole number of such citizens twenty-one yars 
 of age in such State. 
 
 By chapter 3, General Statutes of Massachusetts, on construction of 
 statutes, it is enacted that the word " spendthrift" shall include any 
 person who is liable to be put under guardianship on account of excess- 
 ive drinking, gaming, idleness, or debauchery. 
 
 By chapter 109, section 9, of the General Laws of Massachusetts, 
 when any person, by excessive drinking, gaming, idleness, or debauch- 
 ery of any kind, so spends, wastes, or lessens his estate as to expose 
 himself or his family, the mayor and aldermen, or the selectmen of the 
 city or town of which such spendthrift is an inhabitant or resident, or 
 upon which he is or may become chargeable, may present a complaint 
 and have him put under guardianship, according to the provisions of 
 that chapter. 
 
 And all those citizens of the United States, i. e., those who cannot read 
 and write, who have not paid their taxes, or are so unfortunate as, at 
 some time in their lives, to have required aid from the public, are, by 
 the laws in force in Massachusetts, deprived of their vote, while idiots 
 and insane persons, where not under guardianship, have full right to
 
 BOYNTOX VS. LORING. 359 
 
 vote ; and we have a school, supported by the State, in which " idiotic 
 and feeble-minded youth" are taught to -read and write, and thus be 
 qualified to vote under the equal, just, and discriminating laws of Mas- 
 sachusetts. 
 
 Leaving out the idiots, insane, aliens, and convicts, it appears demon- 
 strable that 105,109 citizens of the United States have their immunities 
 and privileges abridged, and are deprived of their right to vote in that 
 State. 
 
 We have already commented upon the testimony which we have ex- 
 amined in regard to the towns of Amesbury and West Xewbury ; how 
 these laws were enforced to the oppression and disfranchisement of the 
 humbler class of citizens, and with the purpose of compelling them to 
 vote according to the dictates of the dominant party. This mode of 
 carrying elections in Massachusetts is termed, by a newspaper of the 
 largest circulation of any daily newspaper in the State, which advocated 
 the Republican candidates in this election, and recommended, as civil- 
 ized bulldozing. 
 
 We have also shown that if the fourteenth amendment to the Consti- 
 tution of the United States is put into effect, and the representation of 
 Massachusetts is apportioned by a reduction " in the proportion w r hich 
 the number of such male citizens shall bear to the whole number of 
 such citizens twenty-one years of age." it would reduce the number of 
 Representatives from eleven to eight. 
 
 Now, as the total vote of this district (23,275) is nine and eight one- 
 hundredths (9.08) per cent, of the total Congressional vote of the State, 
 the same percentage of the whole number of citizens disfranchised in 
 the State, viz, 105,109, will approximate very nearly the number dis- 
 franchised in the sixth Congressional district, which we find to be 
 1,040 for " illiteracy'' and 11.475 for failure to pay a tax, making a total 
 of 13.121 considerably more than half of the total vote thrown in the 
 district, or 2,782 s'otes more than were cast for any candidate. 
 
 Shall the State, by its laws and their execution, be allowed to dis- 
 franchise so many of its citizens, and have the benefit of the representa- 
 tion of these disfranchised citizens in Congress and in the Electoral 
 College under the present apportionment? Let the law under which 
 this very apportionment is made answer. 
 
 Section 0, chapter 11, of the acts of 1872, approved February 2, 1872, 
 17 Stat., page 28, under which the apportionment is made, enacts-^- 
 
 That should any state, after the passage of this act, deny or abridge the right of 
 any of tin- male inhabitants of such State, being twenty-one years of age and citizens 
 of the United States, to vote at any election named in the amendments to the Consti- 
 tution, article fourteen, section two, except for participation in the rebellion or other 
 crime, the number of Representatives apportioned in this act to such State shall be 
 reduced in the proportiou which such male citizens shall have to the whole number 
 of male citizens twenty-one years of age in such State. 
 
 This answers the question, and also whether the phrase in the Con- 
 stitution, article 14, of the amendments, " No State shall make or enforce 
 any law which shall abridge the privileges of citizens," &c., is aimed 
 against a law depriving them of the right to vote. It also settles the 
 question which is sometimes raised, whether a constitutional provision 
 can execute itself without being " enforced by appropriate legislation." 
 
 To enforce this law and all laws ought to be enforced, especially 
 those that guard the rights of the citizen will substantially diminish 
 Massachusetts from eleven to eight Representatives, and from thirteen 
 electoral votes to ten.
 
 360 DIGEST OF ELECTION CASES. 
 
 Another question may be raised : It will be observed that this section 
 says, "That should any State, after the passage of this act, deny or 
 abridge the rights," &c. 
 
 It may be objected that the laws under which the State, elections are 
 held in Massachusetts do not appear to have been made after the pas- 
 sage of this act. But if the committee will turn to the law before cited 
 (General Laws of 1874, page 283, chapter 376), they will find that the 
 law imposing these restrictions was passed June 29th of that year, and 
 was an act of the State, therefore, two years after the apportionment 
 act of Congress. In other words, the State took advantage of the ap- 
 portionment according to the whole number of people granted by Con- 
 gress in 1872, in order to get the representation, and then deliberately 
 disfranchised, in the face of that law, quite two-fiftlis of her voters, so 
 that a few scarcely half of her citizens might control it. 
 
 It may be said that this matter can only be readjusted when the re- 
 apportionment is made; but the answer to that is patent. Such abridg- 
 ment of the rights of the citizens of the State is an offense which the 
 Constitution, ex proprio vigore, declares punishable by loss of represen- 
 tation, and consequently of electors. When is this offense to be pun- 
 ished f The answer is, when it is discovered, whether it is looked upon 
 in the light of an offense or a wrong done. All offenses should be pun- 
 ished when discovered ; all wrongs done, righted when discovered. 
 
 Is there any man on the committee who doubts, upon all this evidence,, 
 that if it had not been for these disfranchising laws of Massachusetts, 
 and the manner in which they were executed, the contestant would have 
 been uncontestedly elected 1 ? There can be but one honest reply to that. 
 
 If so, then it is within the power of the House to seat a man who re- 
 ceived, upon any count, within a score or two of a plurality of the votes 
 actually thrown, and who would have received a large majority of the 
 votes of which he was unconstitutionally and illegally deprived. 
 
 We have done our duty in presenting these wrongs to Congress. Let 
 the House apply the remedy, and right the wrongs, and prevent the 
 wrong-doers from enjoying the benefits of such wrongs, either in too 
 great representation in the House or in the Electoral College, thereby 
 controlling the choice of the President. 
 
 We recommend that the following be adopted by the House of Rep- 
 resentatives in this case: 
 
 Resolved, That E. Moody Boynton is entitled to the seat in the Forty- 
 sixth Congress from the sixth Congressional district of Massachusetts, 
 and that George B. Loring is not entitled thereto. 
 
 J. B. WEAVER.
 
 DUFFY VS. MASON. 361 
 
 SEBASTIAN DUFFY vs. JOSEPH MASON. 
 
 TWENTY-FOURTH CONGRESSIONAL DISTRICT OF NEW YORK. 
 
 Contestant alloys fraud, the buying of votes, and other corrupt and illegal means on- 
 the part of contestee. Contestee insists that the grounds of contest are not stated 
 with that precision and certainty required by statute. 
 
 Held, That the notice of contest is clearly insufficient, but the coutestee is estopped 
 by his own acts from assailing the sufficiency of the notice, and its defects have 
 been waived by a subsequent agreement with reference to the taking of testimony. 
 
 The proof that rumors existed that persons friendly to coutestee improperly influenced 
 their employe's to vote contestee's party ticket is incompetent and must be rejected 
 as hearsay. It is necessary to establish the truth of these rumors and not their 
 bare existence; and for the same reason all evidence relating to volimtary state- 
 ments made by persons not under oath or witnesses must be rejected, as all such 
 heresay evidence is inadmissible. 
 
 Where evidence fails to show that money used by political committees was used to 
 corrupt or improperly influence the voters, such voters cannot be disfranchised, 
 even though members of such committees have possibly violated State statutes 
 by using money for purposes prohibited by such statutes. 
 
 A candidate cannot be held responsible for all the imprudent and censurable acts of 
 indiscreet friends, who, in the zealous advocacy of his election, resort to improper 
 means in securing that result without his knowledge, unless the voters affected 
 by such means are sufficient in number to change or render uncertain the result 
 of the election. 
 
 Evidence which shows only that certain persons who voted were students at a uni- 
 versity in the district creates no presumption that they were not legal voters at 
 the place where such university islocated. 
 
 The House adopted the report May 21, 1880. 
 
 MAY 21, 1880. Mr. COLERICK, from the Committee on Elections, sub- 
 
 mittted the following 
 
 REPORT: 
 
 The Committee on Elections, to whom was referred the contested-election 
 case of Sebastian Duffy against Joseph Mason, from the twenty-fourth 
 Congressional district of yew York, respectfully submit the following 
 report : 
 
 The election oat of which this contest arises occurred on the 5th day 
 of November, 1878, in the twenty-fourth Congressional district of the 
 State of New York, composed of the counties of Oswego and Madison. 
 The official returns show that the contestee received for Representative 
 in Congress from said district 12,043 votes, and the contestant 11,307, 
 making the contestee's official majority 730. 
 
 The grounds of contest are specified in the notice of contest, of which 
 the following is a copy :
 
 362 DIGEST OF ELECTION CASES. 
 
 NOTICE OF CONTEST. 
 
 Hon. JOSEPH MASON, 
 
 Hamilton, Madison County, New York: 
 
 SIR: Please take notice that I shall, in the manner provided by law and the rules 
 and precedents of the House of Representatives of the United States, contest your 
 election and your certificate of such election as a member of the Forty-sixth Congress 
 of said United States from the twenty-fourth Congressional district of the State of 
 New York, on the following grounds, to wit: 
 
 First. That you did not receive a majority of the legal votes cast at the election held 
 in said Congressional district on the 5th day of November last, but. on the contrary, 
 that I did receive a majority of such votes. 
 
 Second. That your election was effected and procured by force, fraud, intimidation, 
 promises of favor, corruption, the buying of votes and voters, and other corrupt and 
 illegal means used by you and in your behalf; and that your certificate of election as 
 such member of Congress was and ie based upon and the result of such force, fraud, 
 intimidation, promises of favor, the buying of votes, and other corrupt and illegal 
 means used by you and in your behalf. 
 
 Third. That your election was procured by illegal votes and illegal voting in your 
 behalf, and by your procurement or the procurement of those interested in your elec- 
 tion. 
 
 Fourth^ That your certificate of election is invalid for the reasons stated in the 
 second specification herein. 
 
 Fifth. That I was, on said 5th day of November, 1878, legally elected as such mem- 
 ber instead of yourself, and am entitled in your stead to a seat in said Forty -sixth 
 Congress. 
 
 Dated Pulaski, December 23, 1878. 
 
 SEBASTIAN DUFFY. 
 
 The contestee insists that the grounds of contest are not stated with 
 that precision and certainty required by the statute which authorizes 
 and regulates the procedure in contests of this nature. The objections 
 urged by the contestee are presented in his answer, as follows : 
 
 II. Your notice in writing served upon me December 26, 1878. is insufficient and in- 
 complete under the statute and practice in such case made and provided, in that it 
 does not specify particularly the grounds upon which you rely: that is to say, your 
 charges that my election was procured by force, fraud, intimidation, promises of 
 favor, the buying of votes and voters, and other corrupt and illegal means used by 
 me and in my behalf, and that my election was procured by illegal votes and illegal 
 voting, and by my procurement or the procurement of those interested in my election, 
 and grounds of contest therefor respectively, do not state who was forced to vote for 
 me, and what fraud contributed to my election, and who was intimidated, or in what 
 manner, place, town, city, or county such intimidation was had, and to whom or in 
 what manner promises of favor were made, and what votes and voters were bought 
 or where and when such votes or voters were so bought, and what other corrupt and 
 illegal means were used by me and in my behalf, and by what illegal votes and ille- 
 gal voting by my procurement or the procurement of those interested in my election 
 you were prejudiced, and who were so interested, and in what election district, town, 
 -city, or county such persons reside and perpetrated such acts complained of. 
 
 The statute provides : 
 
 SEC. 105. Whenever any person intends to contest an election of any member of the 
 House of Representatives of the United States, he shall, within thirty days after the 
 result of such election shall have been determined by the officer or board of canvass- 
 ers authorized by law to determine the same, .^ive notice, in writing, to the member 
 whose seat he designs to contest, of his intention to contest the same, and in such no- 
 tice shall specify particularly the grounds upon which he relies in the contest. (Re- 
 vised Statutes of the United States, page 18.) 
 
 McCrary, in his Law of Elections, section 343, referring to this stat- 
 ute, says: 
 
 A good deal of discussion has arisen as to what is to be understood by the words 
 "specify particularly the grounds on which he relies." It is evident, however, that 
 these words are not easily defined by any others. They are as plain and cJear as any 
 terms which we might employ to explain them. Cases have arisen, and will again 
 arise, giving rise to controversy as to whether a given allegation comes up to the re- 
 quirement of this statute, and it must be for the House in each case to decide upon the 
 case before it. It may be observed, however, that this statute should receive a reason-
 
 DUFFY VS. MASON. 363 
 
 able construction, one tliat will cany out ami not defeat its .spirit anl purpose. And 
 perhaps the rule of construction which will prove >at'..--t a- a guide in each case is this: 
 A notice which is sufficiently specific to put tin- sitting member upou a proper d 
 and prevent any surprise being practiced upon him is good, but one which fails to do 
 this is bad. (Wright >*. Fuller. 1 Bartlett.' 1 
 
 The Houses of Congress when exercising their authority and jurisdiction to u 
 upon "the election returns and qualifications" of members are riot bound by the tech- 
 nical rules which govern proceedings in courts of justice. Indeed, the .statutes to be 
 found amongth'- aets of Congress regulating the mode of conducting an election con- 
 trsT in the House of liepresentarh e- an- di'.ftory only, and are not and cani: 
 made mandatory under the Constitution. In practice these statutory regulations 
 an- often varied and sometimes wholly departed from. They are convenient as rules 
 of practice and of course- will be adhered to, unless the House in its discretion shall 
 in a given case determine, that the ends of justice require a different course of action. 
 They constitute wholesome rules not to be departed from without cause, i Ibid. 
 tion349. 
 
 While it is true that this statute should receive a liberal construction, 
 yet it will not do to permit parties to disregard its provisions. The 
 House, in sanctioning its violation in cases heretofore determined, has 
 created precedents that an- now frequently and pertinently cited to 
 justify similar infractions. This practice, if tolerated, will finally result 
 in the virtual abrogation of the statute. The only safe course to pursue 
 is to require at least a substantial compliance with its provisions. We 
 think that the notice of contest in this case is clearly insuiticient. It is 
 too indefinite and uncertain in its allegations. As was said in the 
 of Brotuberg rs. Haralson (Smith's Digest of Election Cases, page 355) 
 
 It is too vague and uncertain to be good. The statute requires that the contestant 
 in his notice "shall specify particularly the grounds upon which he relies in his con- 
 > impossible to conceive of a specification of the grounds of contest broader 
 or more general in its terms. It lixe- no place where any act complained of occurred. 
 It embraces the whole district in one sweeping charge. This specification embraces 
 three general grounds of complaint, not one of which possesses that particularity - 
 tial to good pleading. 
 
 But the contestee in this case is justly estopped by his own act and 
 conduct from assailing the sufficiency of the notice of contest, and its 
 defects have been by him waived. The record contains the following 
 agreement: 
 
 UXITKD STATES OF AMKRICA : 
 
 In the matter of the contested election of Joseph Mason, Representative-elect to the 
 Forty-sixth Congress from the twenty-fourth Congressional district, State of New 
 York : 
 
 It is hereby stipulated and agreed, by and between Sebastian Duft'y and Joseph Mason, 
 contestees. through iheir respective attorneys, that all affirmative evidence heretofore 
 or which may hereafter be given be, and remain, in this contest as a part of con- 
 uid that contestee, in consideration of this consent and stipulation on 
 his part, have siitlicient time after the expiration of the statutory limit of ninety days 
 in v, Inch to give evidence in answer to such new matter so put in evidence, to the end 
 that simple and exact justice be done to all parties, and that contestant have reason- 
 able time to put in evidence in rebuttal only to such evidence as the contestee may 
 give after said ninety days shall have expired'. * ' 
 Dated April 10. 1879. 
 
 S. D. WHITE, 
 
 Attorney for Duffy. 
 JOHN J. LAMOREE, 
 Attorney for Joseph Mason, Owego County. 
 
 D. N. WELLINGTON, 
 Attorney of Joseph Mason for Madison County. 
 
 That such defects may be waived has been determined by at least two 
 decisions of the House. (See Otero vs. Gallegos, 1 Bartlet, 178, Brom- 
 berg vs. Haralsou, Smith's Digest of Election Cases, page 356.)
 
 364 DIGEST OF ELECTION CASES. 
 
 If these defects had not been waived we would feel fully justified, by 
 reason of the insufficiency of the notice, in dismissing this case or ex- 
 cluding the evidence offered in support of the alleged grounds of con- 
 test; but in view of this waiver, we are compelled to examine the evi- 
 dence and determine the merits of this contest. 
 
 We will consider the grounds of contest as stated in the contestant's brief, 
 and in the order in which they are herein presented, as follows: 
 
 On the part of the contestant, it is claimed that a sufficient number of votes were 
 withheld from him and controlled by and cast 1'or the coutestee through bribery and 
 the corrupt and illegal use of money by contestee, his agents and .servants, and those 
 working in his interest, with his consent, and through intimidation practiced by then r 
 to far more than overbalance these majorities. 
 
 The means and appliances used to bring about this result were: 
 
 First. The system of bribery and intimidation established by Thomson Kiugsford, 
 the manager of the Oswego Starch Factory, a powerful corporation, by which the em- 
 ploye's of said Kingston! and of said Starch Factory Company, numbering nearly 
 or quite one thousand voters, have been persuaded by steady employment, at good 
 wages, or the hope thereof, and intimidated by the fear of being discharged from 
 such employment and deprived of the same in future, to vote the ticket to which said 
 Kingsford was favorable and on which coutestee was a candidate. 
 
 Second. The raising and expending large sums of money by the contestee and those 
 acting in concert with him, with his knowledge and consent, in violation of the stat- 
 utes of the State of New York, through the agency and instrumentality of the com- 
 mittees of the political organization of which he was the candidate, for the purpose 
 of illegally influencing the voters to attend the polls and vote for said contestee and 
 the candidates for other offices running on the same ticket with him. 
 
 Third. The expenditure of large sums of money by political leaders of the party of 
 which the coutestee was a candidate, at and about the time of the election, and iu 
 giving employment to electors who were day laborers, with a view to exercise a con- 
 trol over their votes as an incident of their employment. 
 
 Fourth. Bribery of voters to vote for the contestee, and the buying of the influence 
 of persons controlling or supposed to control the votes of other persons, to procure 
 votes for contestee, and other corrupt and illegal use of money practiced by the cou- 
 testee, his clerks, agents, servants, and attorneys, and those acting iu concert with 
 him, other than the regular committees of the political party of which he was the 
 candidate, and with his assent and approval, in promoting his election. 
 
 Fifth. That a large number of persons who were not legal voters voted for the con-, 
 testee, and their votes are credited to him in the count. [See contestant's brief, 
 pages 2 and 3. ] 
 
 I. 
 
 That rumors have prevailed in the city of Oswego for many yearn 
 past that Thompson Kingsford, and others connected with him in the 
 management of the Oswego Starch Factory, improperly influence their 
 employe's to vote the Republican ticket is clearly shown by the evi- 
 dence, and we have no doubt that many of these persons who have 
 testified as to the prevalence of these rumors sincerely believe that such 
 an influence is exercised. It is necessary for us to ascertain and deter- 
 mine from .the evidence the truth of these rumors and not their bare 
 existence, as they may have been entirely unfounded and untrue. The 
 charge that such a system prevailed at the time of the election in con- 
 troversy must be established by competent proof, rendered by sworn 
 witnesses, personally cognizant of the facts upon which the charge is 
 based. All the witnesses examined by the contestant, except three, to 
 whose evidence we will hereafter refer, frankly admit that they have no 
 personal knowledge of the existence of such a system, and that the only 
 information possessed by them upon that subject was solely derived 
 from these rumors and from statements made to them by persons professing 
 to have actual knowledge of the facts, none of whom, excepting the three 
 above referred to, were called by the contestant as witnesses to prove 
 the truth of their assertions, while, on the other hand, the contestee
 
 DUFFY VS. MASON. 365 
 
 examined as witnesses a large number of the employes of the factory, 
 who positively deny that any such system ever prevailed there, and 
 declare that no improper influence lias ever been brought to bear upon 
 the employes affecting their political action, and that they do not know 
 -of an instance where persons there employed, and desiring to vote the 
 Democratic ticket, have been deterred from doing so by fear or appre- 
 hension that they might be discharged from employment should they 
 <lo so. 
 
 It is our duty to reject all the evidence that has been offered relative 
 to the existence of the rumors to which we have alluded, as it is clearly 
 incompetent, and we must, for the same reason, discard all evidence re- 
 lating to voluntary statements made by persons not under oath or wit- 
 nesses, as all such hear&ay evidence is inadmissible. 
 
 The rule that we apply in rejecting this evidence is stated in 1 Green- 
 leaf on Evidence, page 115, thus : 
 
 Hearsay evidence is uniformly incompetent to establish any specific fact which in its 
 nature IK xHw/itible of bcin(i jirored b>j -j/;ic.vs.'.s iclio xoi'ak from their own knowledge. That 
 it supposes something liefter That might be adduced in the particular cases is uot the 
 only ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the 
 mind as to the existence of the fact, and the frauds which may be practiced under its 
 cover, all combine to support the rule that hearsay evidence is trholly inadmissible. 
 
 None of the evidence excluded by us comes within any of the excep- 
 tions to the rule above stated, and this rule has often been applied by 
 the House of Representatives in cases of this character. 
 
 The application of this rule results in the rejection of all the evidence 
 introduced by the contestant in support of the first ground of his con- 
 test, save that rendered by Daniel Sweeney, Alexander Lemmon, and 
 Hiram Hammond, all of whom were, at different times prior to 1878, 
 employed in the factory, and who claim that they were discharged from 
 their employment by reason of their political sentiments and affiliations. 
 
 Daniel Sweeney testifies that in the fall of 1862, eighteen years ago, 
 he was discharged' by Kingsford because he refused to vote for Wads- 
 worth, the Republican candidate for governor of the State of New York ; 
 that he had worked in the factory for fourteen years continuously, and 
 it was the only occasion that he vras ever spoken to by Kingsford on the 
 subject of voting. (See Record, page 202.) 
 
 Alexander Lemmon testifies that in 1873 or 1874 he was requested by 
 Kingsford " to go to the polls and peddle tickets for him," and that he 
 was discharged from his employment because he was accused of "ped- 
 dling Democratic tickets with the Republican heads on." (See Record, 
 page 144.) 
 
 Hiram Hammond testifies that in 1876 Kingsford expressed his desire 
 that witness should vote for Hayes for President, which he promised to 
 do, but voted for Tilden, and that in the latter part of December, 3878, 
 at the close of the year's work at the factory, he was discharged from 
 his employment. (See Record, page 987.) That he had worked at the 
 factory " off and on " for fourteen years, and that the occasion to which 
 he alludes is the only time that Kingsford ever talked to him on the 
 subject of politics (page 993). 
 
 These are the only instances, extending over a period of sixteen years, 
 where it is shown by competent evidence that Kingsford or any other 
 person interfered in any manner with the employe's of the factory in the 
 free and unrestrained exercise by them of the elective franchise. There 
 is no evidence in the record, that we have discovered, showing a single 
 instance of such interference on the part of Kingsford or any other 
 person connected with the management of the factory, relating to the 
 election in controversv.
 
 366 DIGEST OF ELECTION CASES. 
 
 It is proper for us to say that evidence has been presented -by the 
 contestee showing, or tending to show, that Sweeney, Lemmon, and 
 Hammond were discharged for other than political causes, .namely, 
 that Sweeney was discharged on account of his intemperate habits 
 (see Record, pages ^00, 3G1), and Lemnionfor like cause and for gross neg- 
 ligence (Record, page 535). Hammond admits on his cross examination 
 that four other employe's were discharged at the time of his discharge, 
 two of whom were Republicans, and that the cause assigned by the fore- 
 man for their discharge was that the work was insufficient for the entire 
 force then employed in the factory. (See Record, page 994.) 
 
 If such a system does in fact exist, it is deplorable and merits the 
 severest censure. Those engaged in such practices richly deserve the 
 just contempt of all who love liberty and despise tyranny, and they 
 should be punished by the State whose laws they so grievously offend. 
 But the evidence presented in this case is insufficient to authorize us as 
 judges, governed by law, to declare that such a system actually pre- 
 vailed in the Oswego Starch Factory, at least in 1878. If we accept as 
 true the rumors that prevailed as to its existence, still the evidence is 
 incomplete, as it wholly fails to furnish any data by which the number 
 of voters affected by it can be ascertained ; and even excluding the 
 ballots of all the voters then employed in the factory, which are esti- 
 mated by witnesses at 150 to 200; it would not affect or change the re- 
 sult of the election, as the contestee's official majority is 736. 
 
 II. 
 
 The contestant, in his brief (page 25), says : 
 
 Under our second general heading, we call attention to the statute of the State of 
 New York regulating elections; the acts of the county committees of the party (whose 
 candidate contestee was) in violation of those statutes ; the privity of the contestee to 
 those violations, and their effect upon the result of the canvass. 
 
 That part of the statute in question which it is claimed was violated is found in 
 volume first of Banks & Brothers, sixth edition of the Revised Statutes of the State 
 of New York, on page 452, being 6,7. and 8, of title 7, chapter 6, part 1, of the re- 
 vised statutes, and reads as follows: 
 
 " 6. It shall not be lawful for any candidate for any elective office, with intent to 
 promote his election, or for any other person, with intent to promote the election of 
 any such candidate, either 
 
 ''1. To provide or furnish entertainment at his expense to any meeting of electors 
 previous to or during the election at which he shall be a candidate; or, 
 
 "2. To pay for, procure, or engage to pay for, any such entertainment; or, 
 
 "3. To furnish any money or other property to any person for the purpose of being 
 expended in procuring the attendance of voters at the polls; or, 
 
 "4. To engage to pay any money, or deliver any property, or otherwise compensate 
 any person for procuring the attendance of voters at the polls; or, 
 
 "5. To contribute money for any other purpose intended to promote an election of any 
 particular person or ticket, except for defraying the expenses of printing, and the circu- 
 lation of votes, handbills, and other papers previous to any such election, or for CON- 
 VEYING sick, poor, or infirm electors to the polls. 
 
 "$ 7. No person shall fraudulently or deceitfully change or alter a ballot of any 
 elector, nor shall furnish an elector any ballot containing more than the proper 
 number of names, or cause any other deceit to be practiced with intent fraudulently 
 to induce such elector to deposit the same as his vote, and thereby to have the same 
 thrown out and not counted. 
 
 " $ 8. Every person offending against the provisions of this act shall be deemed 
 guilty of a misdemeanor, punishable by fine not exceeding two hundred and fifty dol- . 
 fare, or by imprisonment not exceeding six months."' 
 
 We have carefully examined all the evidence introduced by both 
 parties, for the purpose of ascertaining the amount of money raised and 
 expended "through the agency and instrumentality of the committees 
 of the political organizations " of which the contesting parties were the
 
 DUFFY VS. MASON. 367 
 
 candidates, and the purposes for which it was used, and we herewith 
 present a synopsis of the evidence upon the subjei 
 
 Charles North testifies that lie was the chairman of the Republican 
 county committee of Oswego County in the fall of IMS. and had the 
 general charge of the conduct of the election on the part of the Repub- 
 lican party, and that the committee obtained funds for the campaign by 
 contributions from the Republican candidates, office-holders, and other 
 "patriotic citizens," and that these assessments were proportioned to 
 the supposed necessary expenses of the campaign, and that the pur- 
 poses for which the committee were expected to furnish money was to 
 pay the expenses of public meetings and speakers, distribute papers 
 and documents, print and distribute ballots on election day, and furnish 
 a small sum to each town and ward committee for the purpose of get- 
 ting the aged, poor, and infirm voters to the polls, and that money had 
 been raised and expended by the Democratic county committee for the 
 same purposes and in the same manner, and that this had been the 
 practice of both parties as long as he has had any acquaintance with 
 political affairs in that county. That such an assessment was made by 
 the Republican county committee of Oswego County in the fall of 1878, 
 and that the contestee, as the Republican candidate for Congress in 
 that district, was assessed $200 by that committee, which he paid to the 
 witness, as the chairman of the committee, and that it was used for said, 
 purposes, and no other (Record, pages 553 and 554); and that from 
 ten to twelve hundred dollars had been raised by the committee in the 
 fall of 1878 for said purposes that passed through his hands (Record, 
 page 557). 
 
 James Dowdle testifies that he was the treasurer of the Greenback 
 county committee of Oswego County : that at a meeting of said commit- 
 tee, at which the contestant was present, it was agreed that each candi- 
 date should pay for printing tickets and handbills and circulating them, 
 and that no money should be raised except for those purposes; and that 
 an assessment was afterwards made on that basis, and that contestant 
 wa- ; $."iO. which he paid, and that the money so raised by the 
 
 committee was used for said purposes. (See Record, page 975.) 
 
 John A. Barry testifies that he was the treasurer of the Democratic 
 county committee of Oswego County, and that all moneys raised by 
 that committee for the purpose of carrying on the campaign came into- 
 his hands as such treasurer, and that 140 was raised for that purpose. 
 and was used in paying for the printing and distribution of tickets in 
 the county, and was raised by the assessment of the committee upon 
 Democratic candidates, and that the contestant was assessed $25, which 
 he paid. (See Record, page 1037.) 
 
 Edwin S. Barker testifies that he was the chairman of the Republican 
 county committee of Madison County. That the committee assessed 
 the coutestee -9200 to pay campaign expenses, which he paid. That all 
 the assessments made by the committee amounted to about $700. That 
 the publishers of five Republican newspapers published in the county 
 received $30 each, making $150; and that each town in the county re- 
 ceived from $20 to $50 for the purpose of procuring teams to bring in 
 the indigent voters, and these were all the disbursements made except 
 $10 paid to Colonel Canter, a Republican speaker, to pay his fare to Au- 
 burn. There are fourteen towns in the county. That $550, being the 
 balance of the $700 remaining after paying $150 to said newspapers, 
 was distributed in these fourteen towns to be used in paying expenses 
 in procuring teams and getting out the indigent voters, and to defray 
 the expense in procuring speakers to address the people on the political
 
 368 DIGEST OF ELECTION CASES. 
 
 issues. That he never heard any talk or suggestion that any of this 
 money was to be used to buy votes or for any illegitimate purpose. 
 (Record, pages 921 and 922.) 
 
 Alonzo E. Cherry testifies that he was chairman of the Greenback 
 county committee of Madison County during the campaign of 1878, and 
 that there was money placed in his hands during that campaign to be 
 used for political purposes: that he received 8200 of the contestant, be- 
 ing the amount of his assessment made by said committee; that other 
 -assessments amounting to $265 were paid; that the money received on 
 these assessments of the contestant and others "was all paid out for legiti- 
 mate business, livery bill and man to travel, printing, furnishing Irish 
 World and documents we had printed, and the Utica paper. We dis- 
 tributed from 1,000 to 1,200 of the Utica paper weekly, 200 copies of 
 the Irish World, besides a large quantity of other papers; also, $40 for 
 one meeting, hall, and band when Duffy made his speech at Oneida." 
 (See Record, page 728.) 
 
 Theodore Leonard testifies that the contestant paid to Mr. Lippitt, 
 as chairman of the Democratic county committee of Madison County, 
 #100, for which sum he had been assessed by the committee. (See 
 Record, page 259.) 
 
 By this evidence it appears that the contestee paid assessments to the 
 amount of $400 and the contestant $375. That it was proper for the 
 candidates to make contributions or pay these assessmeuts is conceded 
 by the contestant. The complaint is that a portion of the money so 
 paid by the contestee was used by the committees to whom it was paid 
 for purposes prohibited by the statute, namely, "in procuring the at- 
 tendance of voters at the polls" who were neither "sick, poor, or infirm," 
 and in paying the expenses of public meetings and speakers. That some 
 of the money was used for these purposes is clearly shown by the evi- 
 dence. The contestant seeks to hold the contestee responsible for the 
 acts of the members of the committees representing the Republican 
 party in the district who violated this statute, and in the absence of any 
 proof showing, or tending to show, that the coutestee directed or author- 
 ized the expenditure of the money contributed by him for the purposes 
 forbidden by the statute. A principal is not liable for the illegal acts 
 of his agent, unless done at his instance, or with his knowledge and as- 
 sent. Good faith and innocence are always presumed. If A intrusts B 
 with money to be used by him for certain lawful purposes, and B, with- 
 out the knowledge and consent of A, diverts the money from the pur- 
 poses to which it was to be applied, and uses it for immoral and illegal 
 purposes, A cannot be held liable for the misconduct of B. That 
 the contestee had the right to contribute and pay to these commit- 
 tees money to be used by them for purposes authorized by the statute 
 is not controverted by the contestant, and in the absence of opposing 
 proof the presumption exists that he did not authorize its expenditure 
 for purposes prohibited by the statute. If the statute was violated its 
 offenders are by the provisions of the statute subject to punishment. 
 Under the rigid, illiberal, and unreasonable construction placed upon 
 this statute by the contestant, it is even unlawful for a candidate or his 
 friends to rent a hall for a political meeting, procure music, or employ 
 a speaker to discuss the political issues, because it may tend to promote 
 the election of the candidate, and if such a meeting is held, in disre- 
 gard of this statute, the legal voters who a trended it arc subject to punish- 
 ment therefor by the forfeiture of their votes, regardless of the result 
 that may have been produced by the charms of the music or the elo- 
 quence of the speaker ; or if a legal voter, who is too indifferent or iudo-
 
 Dl'FFY VS. MASOX. 369 
 
 lent to attend the election, is conveyed to the polls in a carriage provided 
 for that purpose by the committee of the party of which he is a member, 
 it affords sufficient cause for challenging his vote to show that he was 
 neither "sick, poor, or infirm," and that he was able to walk or pay for 
 his ride to the polls. To so construe the statute is absurd. If the per- 
 son who attends such meeting or is so conveyed to the polls is a legal 
 voter his vote must be received and counted. We cannot punish legal 
 voters by disfranchising them because members of political committees 
 have possibly violated the statute, as construed by the contestant. The 
 evidence wholly fftils to show that the money was used to corrupt or 
 improperly influence the voters. The supreme court of New York, in 
 the case of Hurley r*. Van Wagner, US Barb., 109 (1858), in construing 
 this statute, said: 
 
 A person who pays money for his board, or railroad or steamboat fare, while going to 
 or from a political meeting, or ichopai/x for the t!*e of a room fo> such mtetint/*, or for the 
 Jif/htx or attendance thereat, in one sense contributes money to promote the election of a 
 particular ticket or candidate. But is it a contribution of money in the sense intended 
 by the act .' l>id the legislature intend to prohibit and punish as a misdemeanor 
 every expenditure of money which might indirectly promote or be intended to promote 
 the election of particular candidates? Public meetings, large assemblies of the people, 
 constant and almost universal intercommunication, one with another, and journeys 
 from one part of the country to another, are the <(iil and customary mean* by which the 
 election of pan icular candidates is made, and they necessarily involve the expenditure 
 of large sums of money which may be said to be contributed. Is this the evil that the 
 act w;'s designed to suppress ? If it was, it may be safely said to have utterly failed 
 of its object, for during the twenty-nine years it has been upon the statute book hardly 
 one attempt has been made to enforce it; and the evil practice, if it be one, has gone 
 on and gained additional strength with each additional year. / infer, therefore, that 
 ihexc are not the conlributionx in money forbidden by the act. If ihe payment of a sum of 
 money for the ii.-e of a room in irhich to hold a public mcctiny for political objects, or for the 
 liyht.t lined thereat, or for the attendance i>f a j><i'*on to prepare xttch room and keep it in 
 proper order, ix a contribution of money to promote an election irithin the meaning of the 
 statute, so is the money a man may expend upon himself in the payment of tavern bills 
 'and the expenses of transportation, ingoing to and returning from such meetings, 
 equally a contribution of money to promote an diction ; because all such expend! tares 
 tend to the same result, and the money is disbursed for the same object, and that is 
 to aid in the election of a particular candidate or ticket. It is not possible to dis- 
 criminate bei ween them, so tha* to adopt the construction claimed is to impute to 
 those who framed the law the most absurd intentions, or to give it an effect which 
 they could not have contemplated. 
 
 Eveu if the law justified us in excluding the ballots of those voters 
 who were conveyed to the polls, although neither "sick, poor, and in- 
 firm,' 1 yet we would be unable from the evidence to compute their num- 
 ber or determine for whom they voted ; nor could we ascertain from the 
 evidence whether the orators, under pay, who addressed public meetings 
 in rented halls, converted lukewarm Democrats or indifferent Repub- 
 licans into "stalwarts," and, if so. what ones, or how many. 
 
 III. 
 
 The only evidence introduced by the contestant in support of this 
 charge is that rendered by Richard (iraee, John C. Cooley, and David 
 H. Judson, as follows: 
 
 RICIIAI:I> U];A( i: sworn. 
 
 1. (Question. What is your age. occupation, and residence.' Answer. Age, thirty- 
 
 thne: occupation, mechanic; residence, No. 10 Yatt-s avenue, eighth ward. 
 **** 
 
 :i-J. .,>. Do you know whether the Oswego starch factory or Thompson Kingsford last 
 fall at the time of the election were putting up or laying the foundation for a large 
 building on West First street, in the city of Oswego.' A. Don't know personally. I 
 saw Kingsford there superintending the work, and reputation sai i he was the pro- 
 prietor. 
 
 H. Mis. 58 24
 
 370 DIGEST OF ELECTION CASES. 
 
 33. Q. Where was this building yon saw Thompson Kingsford superintending lo- 
 cated 1 A. On the west side of Oswego River, on the block formerly known as the 
 new hotel block, on the north side of Seneca street, between First and Water streets. 
 
 34. Q. Can von tell about how many men there were at work on that building imme- 
 diately befoie and after the fall election.' 
 
 (Objection as No. 13.) 
 
 A. There were from two to three hundred men at work there at different times. 
 
 35. Q. W T ill yott state whether there was a current general report in the city of Oswego 
 at the time ot the last fall election that Thompson Kingsford required all those men 
 to vote the Republican ticket as a condition of being retained in employment? 
 
 (Objected as to No. 13.) 
 A. It was so reported. 
 
 37. Q. In your testimony here given did you regard the men working upon that 
 building as in the employment of the starch factory company? 
 
 (Objection as to No. 13.) 
 A. I did. 
 
 38. Q. At what time did they commence this building ? A. Some time last Sep- 
 tember. 
 
 39. Q. State at what time, as near as you can, there were the most men at work on 
 this building with reference to the time of election? 
 
 (Objection as to No. 13.) 
 
 A. The best of my recollection, about the middle of October. 
 
 40. Q. State whether about the same number of men were continued in employ from 
 the middle of October until after election? 
 
 (Objection as to No. 13.) 
 A. There were. 
 
 41. Q. At about what time did they commence to reduce the number of men at 
 work ? 
 
 (Objection as to No. 13.) 
 
 A. A few days after election. 
 
 (See Eecord, pages 180 and 187.) 
 
 Deposition of John Clark Cooley. 
 
 Witness being duly sworn, deposition taken in pursuance of notice filed: 
 2151. Question. W T here do you reside? State your age, residence, and occupation. 
 Answer. Resides city of Oswego, third ward; age fifty-seven years; at present canal 
 
 collector. 
 
 ******* 
 
 2202. Q. Do you know whether last fall, and within a month or two before his elec- 
 tion, Mr. Kiugsford took into his employ a considerable number of other men engaged. 
 in the construction of a building in the city of Oswego? A. I do. 
 
 2203. Q. Do you know how long they were continued in his employ after the elec- 
 tion ? A. I think they were kept until the neighborhood of December or into Decem- 
 ber till it froze up. 
 
 2204. Q. Do you know about how many men? A. No, I don't; a good many; prob- 
 ably seventy-five or more. , 
 
 2205. Q. When was it, then, when you say you saw seventy-five men ? A. Some time 
 in October. 
 
 220t>. Q. Do you know whether it was generally understood that the-iiumber was in- 
 creased just beloro election? A. No, sir. 
 
 2207. Q. Was there a entrant report that all the voters working on that building were 
 required to vote the Republican ticket last fall by Mr. Kiugsford or the bosses of his 
 work? 
 
 (Objected to as before ; same disagreement. ) 
 
 A. After election, two or three times I heard that they bad been called upon to vote 
 the Republican ticket. I don't know anything about current report at all, for I wasn't 
 out. 
 
 2208. Q. Who did you understand they had been called upon by ? A. / understood 
 that Mr. Kingsford bad had them called upon to see how they were going to vote. 
 
 (See Record, page 118.) 
 
 Cross-examination : 
 
 3107. Q. That building you understand Mr. Kingsford to be erecting for the occupa- 
 tion of O. M. lilam.-banl &. ('. with their door, sash, and blind factory? A. Yes. 
 
 3108. Q. That linn was burned out last summer, was it not? A. Yes. 
 
 3109. Q. About how mauy men did you understand the firm of Blanchard & Co. to 
 have employed in their business? A. I have heard from seventy-five to one hundred, 
 and fifty.
 
 DUFFY VS. MASON. 371 
 
 3110. Q. Did they not find it difficult to find any plan* to occupy, and tor that reason 
 was i< n. .r 1'caml rh.-ir they would leave the city.' 
 
 (Counsel fur coii!e>tant : I object to it as irrelevant and immaterial, and has been 
 answered. Notaries disagree.) 
 
 A. All I know is v, hat 1 >aw in the p;i; .-. it .so stat d. 
 
 3111. (.{. And did you not understand that the committee on manufactures of the 
 board of tn.de waited on Mr. Kingsibrd to induct- him, it' possible, to furnish a building 
 for their occupation .' A. 1 have no recollection of it. 
 
 3112. Q. Did you not understand that this building iu question l>y Mr. Kiugsford 
 was coiniuei.ced for that purpose.' A. Yes. 
 
 3113. Q. And did you not understand that from the commencement the work was 
 pn-M'd lorward with all the force that could be profitably employed until it was 
 stopped by the \\intei .'A. I did. 
 
 3117. Q. Who said to you after the election that the men employed by Mr. Kings- 
 ford on that building had been called upon by Mr. King>ibrd to vote the Republican 
 ticket ? A. I can't remember now. 
 
 311 W . (,). Can yon remember any time or place when anything of thekind was said? 
 A. I can't remember nowhere. 
 
 3119. Q. Can you swear that you heard anything of the kind said before the trial* 
 of this contest began in this room a fortnight ago yesterday ? A. lean, positively. 
 
 31^0. Q. AY hat was ir you heard said.' A. The remark I heard was that Mr. Kings- 
 ford had had the men that was to work on the Blauchtbrd building seen relative to 
 voting the Republican ticket That's all I did hear. 
 
 31 - J1. Q. 1>\ whom was that remark made? A. I can't tell yon. 
 
 31^2. Q. Can \ on telianything of the time, place, or person, where, when, or by whom 
 that remark was made .'A. I cannot. 
 
 31<J3. Q. How many times did you hear that remark made? A. I have just answered 
 that question by saving only once. 
 
 3l5i4. Q. YV~ y did you say, in answer to question '2207, that you had heard that siad 
 two or three times .' A. At that time my recollection may have been two or threa 
 times, but now, on reflection, I can recollect positively only once. 
 
 (See Record, pages !<!? an 1 lite.) 
 
 It will be observed that these witnesses do not profess to have any 
 personal knowledge relative to Kings ford, or any other person, exercis- 
 ing, or attempting to exercise, any influence over the employe's en- 
 gaged in the construction of said building iu requiring, inducing, or 
 persuading them to vote for the contestee on the Republican ticket. 
 They merely testify to the existence of a rumor that such influence was 
 exerted over them. If any such rumor existed it was wholly without 
 foundation, as is clearly and convincingly shown by the evidence pro- 
 duced by the coutestee, to which we will hereafter refer. 
 
 The evidence upon which the contestant mainly relies, in support of 
 this charge, is that rendered by David H. Judson, as follows : 
 
 Deposition of David H. Judson. 
 
 6356. Question. State your name, age, residence, and occupation. Answer. Name, 
 David H. Judson: age. fifty years; occupation, ivai estate and boat repairing; resi- 
 dence. <>swe_M> City. East Seventh street. No. 151. 
 
 t'l-iu:',. n. Did \o,i know of the building of the shade-cloth factory in the city of Os- 
 wego last iall just prior to .' and, if so. state whether the same was a large or 
 
 small building, or required the employment of a large or small number of men to erect 
 the same : also state in the same connection of Thompson Kingsford erecting a large 
 building on the corner of YYc-t First an Seneca streets last fall, and state whether 
 there was a large or small number of men there employed prior to and at the time of 
 election. A. 1 know of the building of the shade-cloth factory, which was commenced 
 during th summer season <>!' 1-7-. ami that a large number of men were employed 
 thereon. 1 also know of the erection, or of the commencing to erect, the building 
 known as the sash and blind factory by Thompson Kiugsford, and that there was a large 
 force of men employed on that building. 
 
 (U'U. Q. Ami was not the lion. George Z. Sloan, who, at the time of the erecting of 
 the shade-cloth factory and at the time of the electi- n, was a candidate for nieiiil- 
 assembly, the principal man as you understood in rhe erection of that factory, and a 
 warm supporter of .Joseph Mason for member of Congress in this distiict as against 
 Mr. Duffy .'A. He was one of the principle men engaged in the construction of the 
 shade-cloth factory : and as to the rest of the question, I should stn
 
 372 DIGEST OF ELECTION CASES. 
 
 6405. Q. And did he, Sloan, not receive a large majority for member of assembly in 
 this city ? A. He did. 
 
 6406. Q. And have you not understood through political circles that Mr. Sloan was 
 desirous of being represented by as large a majority as he could obtain, as he was ob- 
 tainiug prominence in the State of New York as a prominent candidate before a Ke- 
 publican convention hereafter to be held for governor? A. Yes. 
 
 6407. Q. And was not the principal tight at last fall's election made to secure the 
 election of Judge Mason and increase the majority for Sloan, as you understand it from 
 Republican politicians ? A. Yes; upon the Eepublicau side. 
 
 b'41'2. Q. From your knowledge of the political position and desires of Mr. Sloan and 
 Mr. Kingsford as leading Republicans to secure the election of Judge Mason, and the 
 embarrassed circumstances of the large number of their employes upon the new build- 
 ings referred to heretofore, and from what you observed and knew of that calss of 
 voters, do you not believe that a great many of them, or a large majority of them, were in- 
 duced by reasrn of their obtaining employment to vote for Mason and Sloan when the 
 same was against their political predilections? 
 
 (Objected to as not proper in rebuttal and as immaterial to the issue, and as incoui- 
 peteut, and as calling for the belief of witness. Notaries differ, Coon holding it im- 
 proper as rebuttal.) 
 
 A. I should say a large number of them did. 
 
 (See Kecord, pages 1005, 1006, and 1007.) 
 Cross-examination : 
 
 6599. Q. Can you name any voter, among all the employe's engaged in the construc- 
 tion of that bifilding, whom you can swear voted differently from what he would have 
 voted in case lit- had not received employment there ? A. I have not sufficient knoicledye 
 liow any of the men employed on that building voted to sicear positively a* lo hoic they voted. 
 
 6600. Q. Can you name a single employe whom yon have good reason to suppose voted 
 differently, by reason of that employment, from what he otherwise would have done? 
 A. I have reason to believe that one William Kelly, I think is his name, voted differ- 
 ently by reason of his working upon that building, from what he would had he not 
 been at work on the building. 
 
 6601. Q. Name another such employed A. I do not now call to mind the name of any 
 other employe whom I have as good reason to believe voted differently last fall from 
 his conviction as in case of William Kelly. 
 
 6602. Q. Have you any in format ion that leads you to believe that the vote of William 
 Kelly was changed by any undue or improper influence ' And, if you have, you may 
 state what that iuformutiovi \vas. A. I have knowledge and information to lead me to 
 believe that he voted in the manner he did from the fact of bis laboring upon that 
 building, but the nature of that information I decline to give. 
 
 6603. Q. Will you swear that his services were procured or were continued there 
 under an agreement or understanding that he should vote for any particular candidate 
 or any particular ticket ? A. I will not so swear. 
 
 6604. Q. I ask for the source of your information which bears you out in the state- 
 ment you have made in reference to William Kelly's voting. A. Partly from himself. 
 
 6605. Q. And partly from what other source, if any ? A. My impression is that my 
 other source of information was from John Rjidigan. 
 
 6606. Q. Do yon now decline to state the nature of that information, or what it was? 
 A. I do. 
 
 6615. Q. You were present occasionally, and saw the work going on in Kingsford's 
 new building last fall, did you not? A. I was, occasionally. 
 
 6618. Q. Can you name an employe" in that whole force whose vote you know to have 
 been changed by his employment there .' A. I do not know positively, at least posi- 
 tively enough to swear to it, how these employes voted, but can only judge from 
 appearances and hearsay as to how they voted. 
 
 6619. Q. Can you give the name of any employe" on that force whom you have satis- 
 factory reasons ibr supposing voted otherwise than what he would by reason of such 
 employment? A. I have; will name Mr. Cody. 
 
 6643. Q. Name another whose vote you think was changed by such employment. A. 
 I think Mr. Brenuan's was Michael, I think ; but am not sure about that. It was an 
 elderly gentleman. 
 
 6626. Q. Are the three men, Kelly, Cody, and Breunau, men of good reputation for 
 truth and veracity? 
 
 (Objected to as incompetent and immaterial, and nothing more than a cross-exami- 
 nation upon a cross-examiuatiou. Notaries differ; Coon for admission.) 
 
 A. I decline to answer under the notice. 
 
 6629. Q. Do you know what proportion of the employe's upon Kingsford's new build- 
 ing were Republicans and what Democrats and Greenbackers ? A. I do not. 
 
 6630. Q. Have you any knowledge of the politics of those men sufficient to enable 
 you to express an intelligent opinion as to how many votes were changed, if any, by 
 reason of their employment in the construction of those buildings?
 
 DUFFY VS. .MASON. 373 
 
 (Objected to as being a repetition, the witness having already answered.) 
 A. I have, no knowledge of how many votes wen- changed by reason of their emjdoy- 
 ment on those two buildings. 
 
 (See Record, pages 10J5. IW>, and 1027.) 
 
 Very little, if any, importance can be attached to the evidence so 
 rendered by Mr. Judson, as the facts upon which he bases his belief 
 and expresses the opinion that a large number of the employes engaged 
 in the construction of said buildings were improperly influenced to vote 
 for the contestee are very meager and unsatisfactory. He is only able 
 to name three men, out of hundreds engaged in the erection of the build- 
 ings, who were, by reason of their employment, constrained to vote against 
 their political convictions, and his entire information as to their so voting 
 is purely //m/v>cu/, and must be excluded under the rule to which we 
 have above referred, and in one instance he even refused to disclose the 
 nature of the information acquired by him. 
 
 The contestant's purpose in introducing this evidence was to create 
 the impression that Kingsford's object in constructing the building 
 erect ed by him was to furnish employment to a large number of labor- 
 ers, so as to enable him to control their votes at the approaching elec- 
 tion in favor of the contestee. and that he did in that manner influence 
 them to vote for the contestee against their will; but this charge has 
 been completely refuted by the evidence produced by the contestee. 
 
 The contestant failed to call a single one of the many employes en- 
 gaged in the construction of the buildings to prove that he or any other 
 employe was in the slightest manner interfered with in the full enjoy- 
 ment of his rights as a voter, and has introduced no evidence to justify 
 his ' that the buildings were constructed for the purpose of 
 
 giving temporary employment to idle laborers on the eve of the election 
 with a vie\v to exercise a control over their votes as an incident to 
 their employment,'' as charged by the contestant. While, on the other 
 hand, the contestee has clearly and satisfactorily shown the urgent ne- 
 cessity that existed for the construction of the buildings at that time, 
 and has, in like manner, established by the evidence of a large number 
 of persons icho rotcrt for the contestant, and who were engaged in the con- 
 struction of the buildings, that men irrespective of their political views 
 were employed to perform the labor, and that no effort was made by 
 Kingston!, or any other person, to control or influence in any manner 
 their votes. (See evidence of Thomas Gill, record, page 440 ; Patrick 
 Kelly, pages 443 and 444; Charles S. Xewell, pages 350, 351, and 352; 
 James L. Quigg, pages 434, 435, and 430; Eugene Purple, pages 403 and 
 404; James Cosgriif, pages 573 and 574; and James Katigan, pages 345, 
 346, and 347.) 
 
 In view of this evidence, we unhesitatingly say that the contestant 
 has utterly failed to establish the truth of his charge. 
 
 IY. 
 
 The evidence introduced to sustain this charge, like that ottered by 
 the contestant in support of other charges, consists mainly of proof as 
 to the existence of rumors that certain voters were bribed to vote for 
 the contestee with money furnished for that purpose by the emiti'siee. 
 The contestant asserts that the contestee, a few days prior to the elec- 
 tion. placed in the hands of an agent at ( )s\vego $1,500, to be used in 
 bribing voters, and to sustain this assertion he relies on the evidence of 
 Philo Hundy, Samuel 15. Burchard, and George W. Woods. 
 
 Bundy testifies that Burchard informed him the day after the election
 
 374 DIGEST OF ELECTION CASES. 
 
 / 
 
 that contestee had brought to Oswego $1,500, on the Saturday previous 
 to the election, to use whei -e it would do the most good (Record, page 36). 
 He further says: "I did not believe it. I had DO reason to. * * * 
 I took a decided interest in the election of Mr. Duffy for Congress" 
 (page ). 
 
 Buchard testifies that he did not make any such statement to Bandy, 
 and that he does not know of contestee bringing to Oswego any money 
 to be used directly or indirectly to advance his election at any time 
 during the campaign (Record, page 79). 
 
 George W. Woods testifies that one Henry H. Lyman stated in his 
 presence, a few days after the election, that the contestee had furnished 
 $1,500 to corrupt the voters of Oswego, and that it had been placed in 
 the hands of Elias Root for that purpose (Record, pages 1058 and 1008). 
 
 Henry H. Lymau testifies that he did not make any such statement 
 to Woods, or to any other person, and that he does not know anything 
 as to coutestee bringing money to Oswego and placing it in the hands 
 of Root, or any other person, to aid in his election (Record, page ). 
 
 Elias Root testifies that x there was no money placed in his hands by 
 the contestee, or any other person, for the purpose of advancing con- 
 testee's election, and that he does not know of money being placed in 
 the hands of any person in Osw r ego for any such purpose (Record, 
 page ). 
 
 A direct conflict exists between these witnesses as to Burchard and 
 Lyman, or either of them, making the statements imputed to them. It 
 is not necessary for us to settle this conflict, as it is immaterial, so far 
 as the merits of this case are involved, whether or not such statements 
 were actually made by Burchard and Lyman, as they could in no man- 
 ner, by such statements, affect the rights of the contestee, unless Bur- 
 chard and Lyman were his agents, and authorized to speak for him, and 
 there is no proof that any such agency ever existed. No competent 
 evidence has been introduced showing or tending to show that the con- 
 testee furnished money for any such purpose. Bnndy, who zealously 
 supported the contestant, says that he does not believe that any such 
 money was furnished by the contestee. 
 
 The only chaiges relating to the bribery of voters worthy of special 
 notice are those relating to James Gil boy and Hollingsworth. 
 
 Gilboy testifies that Walt. Cushman, then a student in the law office 
 of the coutestee, paid him, on the day of the election, fifty cents for 
 voting for the contestee; that he went to the polls with Cushman, who 
 gave him a paster with the contestee's name-on, which was pasted on the 
 regular Democratic ticket over the contestant's name, and that Cushman 
 watched and saw him vote that ticket (Record, page 906). 
 
 G. G. Waldron testifies that Gilboy promised him the day before the 
 election that he would vote for the contestee, and told the witness to 
 watch him when he came to vote and give him a Mason ticket, and he 
 would vote it, and that at the election the next day the witness gave 
 him a Mason ticket, and went with him to the polls and saw him deposit 
 it, and that Cushman was not present (Record, page 1139). 
 
 The evidence also shows that Gilboy. who is a hostler, is a man of 
 bad habits, and has been in jail at diU'erent times, and that his character 
 and reputation in the community where he resides is bad (Record, page 
 1135). It is conceded by the contestant that Gilboy, while testifying as 
 a witness, was intoxicated. In view of the character of this witness 
 his intoxicated condition while testifying, the many glaring contradic- 
 tory and inconsistent statements in his evidence, his self-confessed 
 infamy in selling his vote, and the evidence of Waldron to which we
 
 IH'FFY VS. MAsox. 375 
 
 have alluded. we are not favorably impressed with the integrity or truth- 
 fulness of Gilboy, and must reject his evidence. 
 
 As to Hollingsworth, some doubt exists as to his qualification.-; as an 
 elector, and it appears from the evidence that Hollingsworth. since the 
 election, has slated to different persons that lie received one dollar from 
 Cushman tor voting lor the contestee, and that the money \vas paid to 
 him after the election. Neither Cushman nor llollingsworth were exam- 
 ined as witnes.-es. ( 'onceding that Holliugs worth's statement is true, it 
 does not aifect the contestee, as the evidence fails to connect him in any 
 manner with the transaction. A candidate cannot and ought not to be 
 held responsible for all the imprudent and censurable acts of indiscreet 
 friends, who, in the x.ealons advocacy of his election, resort to improper 
 means of securing that result without his knowledge, and which he, if 
 consulted, would condemn, unless the voters aflected by such means are 
 sufficient in number to change or render uncertain the result of the 
 election. 
 
 V. 
 
 The evidence shows that fourteen students of Madison University, at 
 the town of Hamilton, voted at this election (Record, pa ire 316). Their 
 names are 1>. B. Grant, B. J. Mix, J. L. Kueeland, J. G. Simons, M. L. 
 Bugg, P. H. Moore, W. C. Phillips, \V. \V. Staples, A. M. Tuttle, C. H. 
 Powers, Ira Hall, James Benedict, George Baker, A. G. Cole, and Hutch- 
 insou : and it is safe to infer from the evidence that all of them except, 
 one voted for the contestee (Record, pages 422 to 425). The contestant 
 insists that these persons were not legal voters, and in support of his 
 position directs our attention to the following provision of the constitu- 
 tion of the State of New York: 
 
 $ 3, ARTICU: -'. For Tin- purpose of voting, no person shall be deemed to have gained 
 or lost a residence l>y rm*<nt of A i* toe while employed in The service of 
 
 the United States, nor while engaged in the navigation of the waters of the State or 
 of the Tinted Stares, or of the high seas, nor icliilca student of a in/ seminary of learning, 
 nor while kept in any almshouse or other asylum at public expense; nor while con- 
 fined in any public prison. 
 
 Prior to the election in controversy a case was tried before Judge 
 
 Wallace, of the Tinted States district court, at Syracuse, X. V., wherein 
 
 a student at St. Bonaventure College, at Allejiany, Cattaraugus County, 
 
 York, was indicted for illegal voting. Judge Wallace, in referring 
 
 to the provisions of the constitution above cited, said: 
 
 Of course, the defendant was not a resident of both Orleans County and Cattaraugus 
 (YunT\ : he could reside in one county only for the purpose of exercising the right of 
 .sultrage. li appeai-s indisputably that until September, 1875, he was a resident of Or- 
 leans Comity, and was a Now. the presumption of the law is that 
 ntinued to be a resident of that county, in the absence of evidence to the con- 
 trary, and the whole case may therefore be determined by ascertainii];; whether or not 
 he acquired a new resilience in Cattaraugns County whether the evidence adduced 
 overcomes the legal presmnpt on to which I ha\e referred. And it is at this point 
 that the bearii . ; of the constitutional provision found in section three of ar- 
 ticle two of the constitution of this State becomes important. The language then 
 employed is : Tor the purpose of voting, no peison shall be deemed to have gained or 
 lost a residence by reason of his presence or absence while a student of any seminary 
 of learning." By force of ibis language it is clear that defendant neither lost his res- 
 idence in ( >rleans County nor gained a residence in Cattaraugns County merely be- 
 cause of his appearance in the latter place as a student at he college. Now, I do not 
 pretend to instruct you that this constitutional provision precludes a student from ac- 
 quiring a residence at the p'are where he is attending college, hut 1 he fact must he. 
 established by evidence other than that which is atforded by this sojourn in the place 
 as a college student. A change of residence may be effected by a change of location 
 with the intent to make that location a new home, as distinct from an intent to return
 
 376 'DIGEST OF ELECTION CASES. 
 
 when some temporary purpose is accomplished, lint a change of residence is not 
 effected by intent ion alone, nor by change of location al >ne. IJoth must occur. And 
 the intent must be evinced by consistent acts which denote an abandonment of the 
 former residence, and the selection of a new home. Yon may find here that defendant 
 never intended to return to Orleans County as his homo, from his declarations and his 
 conduct, but you must also find, before you can decide that lie can acquire a new resi- 
 dence, that he intended to make Cattarangus County his future home, and evinced 
 that intent by corroborative acts. It therefore follows, if the evidence does not dis- 
 close any circumstances which distinguish his case from that of the ordinary one of a 
 college student, intent upon prosecuting his studies, but who has left the paternal 
 roof to mark out his own future for himself, it fails to meet the requirements of the 
 law for the acquisition of a new residence, and the main question in the case will turn 
 upon your conclusion upon the subordinate one. In conclusion, it is appropriate to 
 remind yon that, although the defendant may have conscientiously believed he had 
 acquired a residence in Cattaraugus County, and was exercising a lawful right in 
 voting there, his violation of the law is not thereby purged of the criminal intent 
 which is the essential element of every crime. Every citizen is presumed and required 
 to know the law. (See Record, page. ) 
 
 The evidence in this case shows that it has been customary for many 
 years for the committees of the different political parties in Madison 
 County to secure the attendance of these students of Madison University 
 at the polls as voters (see Record, page 714). Some years as high as 7-~> stu- 
 dents or more of the university voted at the village of Hamilton (Record, 
 page 710), while the number who voted at the election in dispute was 14. 
 One of the witnesses, Edward D. Van Slyck, testifies that the reduction 
 in number at the election in controversy was due to Judge Wallace's 
 opinion, above set forth, " which was taken as the guide and became the 
 decisive ground upon which they claimed their right to vote, 7 ' and that 
 the contestee advised the students "that no one should vote unless he 
 was perfectly satisfied that he was a legal voter, and advised them to 
 keep strictly within Wallace's opinion." (See Record, page 710.) 
 
 Thomas Beal, one of the contestant's witnesses, was examined as to 
 the residence and qualifications as electors of those students who voted 
 at the election, and by his evidence it appears that 6 of the 14 that voted 
 are married men and have resided at Hamilton for many years, and the 
 witness is unable to state that any one of these 14 students had a resi- 
 dence elsewhere than at that village. (See Record, pages 319 to 321.) 
 The students who voted were allowed to do so after being first sworn as 
 to their qualifications as electors. (Record, page 3LG.) Although the 
 burden of proving that these students were not legal voters devolved 
 on the contestant, he has introduced no proof establishing or tending to 
 establish that fact. He relies alone on the fact that they were then stu- 
 dents at the university, which of itself creates no presumption that they 
 were not legal voters of the town of Hamilton. The record shows that 
 subsequent to the election several of the students who so voted were 
 arrested on a charge of illegal voting, and their examination on that 
 charge occurred before C. M. Deunisou, United States commissioner, and 
 resulted in their discharge, The following is the opinion rendered in 
 the case by Commissioner Denuisou: 
 
 United States of America against Pitt H. Moore; same against Brenett J. Mix; same 
 against Levwick L. Kneeland, by C. M. Dennison, commissioner. 
 
 In these cases the defendants are changed with illegal voting at the last general 
 election for Representative in Congress, and the cases are all substantially alike and 
 may all be, decided together. The evidence iu these cases is undisputed anil in no way 
 conflicting, and shows that all of the dctendan s are students of sum;' one of the de- 
 partments of Madison I'ui versify: that each had entirely and absolutely severed his 
 connection with his former home, and supported himself by his own earnings, together 
 with what aid he received from the henciiciary funds of the institution, and had gone 
 to the village of Hamilton with tlie intention of making that his only home and resir 
 deuce, at lea--t while in attendance at the university, and had so remained there the
 
 DUFFY VS. MASON. 377 
 
 tiint; required by law to become a voter. In my opinion there could be no question 
 but that each Of them young men would have been a legal voter at Hamilton had he 
 gone there in the manner in which he did and performed tin- same acts which he did, 
 were it uot for the fact that they came within the classes of pel-sons enumerated in 
 article '2, section 3. of the constitution of this State, and that the determination of these 
 cases turns wholly upon the meaning of that section. It is claimed l>y the prosecution 
 that this section of the constitution is prohibitory, and that no person can possibly 
 gain a residence while a student of any seminary of learning. I cannot concur in this 
 doctrine. This section of the amended constitution is the same as in the constitution 
 of 1840, and, substantially, in my opinion, a simple enunciation of the common law, 
 and meant rather as a protection than as a prohibition, and is not intended to prevent 
 any class of persons from changing their place of residence and gaining a new voting 
 residence, but rather to protect persons who shall leave their actual permanent resi- 
 dence with an intention of going temporarily in some of the occupations or callings 
 in said section enumerated, and at the completion of said purpose to return to their 
 actual residence, and being thereby disfranchised during such absence. In my opin- 
 ion this section of the constitution is not intended to disfranchise any citizen of the 
 State of New York, but rather to protect every citizen of the State in the full exer- 
 cise of the right of elective franchise. It is further claimed by the prosecution that 
 these cases ,;;e parallel and at all fours with the case of "The United States against 
 McCarthy." d.cided by Judge Wallace January, I--78. The defendants in these cases 
 had the opinion of Judge Wallace in that case and examined the same carefully and 
 took legal advice thereon before offering to vote, and upon such examination and ad- 
 vice concluded that their cases did not come within that decision, and that there was 
 nothing contained therein which would prevent their voting, and they all voted after 
 challenge and took the oaths required by law. These defendants are all candidates 
 for the ministry, and. in my judgment, acted conscientiously and with great care, and, 
 a> 1 construe the law, were entirely correct in their conclusion that they were legal 
 be place where they voted. It is ordered that each of the defendants be, and 
 they are. discharged. (See Record, pages 117y and 1171.) 
 
 The evidence is wholly insufficient to authorize us to determine that 
 tin 1 students who so voted were illegal voters. 
 
 In conclusion, we are, for the reasons stated, fully satisfied that the 
 contestant is not entitled to the seat in controversy, and therefore rec- 
 ommend the passage of the following resolutions : 
 
 Jfesolvedj That Sebastian Duffy is not entitled to a seat in the Forty- 
 sixth Congress as a Representative from the twenty-fourth Congress- 
 ional district of Xew York. 
 
 Resolved, That Joseph Mason is entitled to a seat in the Forty-sixth 
 Congress as a Representative from the twenty-fourth Congressional 
 district of Xew York. 
 
 \\ALPOLE G. COLERICK. ' 
 
 WM. M. SPRINGER. 
 
 SAM'L L. SAWYER. 
 
 J. B. WEAVER. 
 
 W. A. FIELD. 
 
 W. H. CALKINS. 
 
 J. H. CAMP. 
 
 J. WARREN KEIFER. 
 
 E. OVERTOX, JR. 
 
 VAN H. MANNING. 
 
 EMORY SPEER, 
 
 R. F. ARMFIELD. 
 
 We concur in the conclusion of the foregoing report and in the resolu- 
 tions recommended. 
 
 E. C. PHISTER. 
 
 F. E. BELTZ HOOVER,
 
 378 DIGEST OF ELECTION CASES. 
 
 JAMES E. O'HARA vs. WILLIAM H. KITCHIN. 
 
 SECOND CONGRESSIONAL DISTRICT OF NORTH CAROLINA. 
 
 Contestant claims in his notice of contest that votes were rejected by the county 
 canvassing boards in several counties. In the record there appears no return of 
 service of notice on coutestee. The contestee in his answer says "no lawful or 
 sufficient notice of said contest has been served upon him ' within the 
 
 time prescribed bylaw," viz, "within thirty days after the result of such election 
 shall have been determined by the officer or board of canvassers authorized by 
 law to determine the same." 
 
 Held, That it cannot be determined from the record when the result of the election 
 was " determined by the officer or board of canvassers authorized by law to de- 
 termine the same." 
 
 Held, That all testimony should be taken within the time prescribed by statute ; and 
 the practice of parties, by agreement between themselves, to postpone the time 
 of taking testimony, without any previous authority of the House, is indefensi- 
 ble. If parties agree to an extension of time, the agreement should be in writ- 
 ing, and application be at once made to the House, when in session, for a ratifi- 
 cation of such agreement. 
 
 The contest is dismissed because the evidence was not taken in time. 
 
 Beported to the House February 17, 1881, and ordered printed, and 
 no further action taken. 
 
 FEBRUARY 17, 1881. Mr. FIELD, from the Committee on Elections 
 submitted the following 
 
 RE POUT: 
 
 The Committee on Elections, to whom was referred the contested-election, 
 case of James JE. G'Hara, contestant, against William H. Kitchin, con- 
 testee, from the second Congressional district of North Carolina, respect- 
 fully report as follows : 
 
 This contest arises out of an election held on the 5th day of Novem- 
 ber, 1878, for a Representative in the Forty-sixth Congress of the United 
 States from the second Congressional district of North Carolina. 
 
 In his notice of contest the contestant complains of the rejection of 
 votes by the county canvassing boards in the counties of Edgecombe, 
 Halifax, Craven, and Lenoir. In the record there appears no return of 
 service of the notice of contest on the contestee ; but the contestee, 
 some time in April, 1879, served his answer to the notice of contest 
 upon the contestant, in which, among other things, he says 
 
 That he ought not to be called upon to answer said notice of contest, because he 
 says no lawful or sufficient notice of said contest has been served upon him by the 
 sai<l contestant, or by any one for him, in the manner or within the time prescribed 
 by law. Nevertheless, this contestant, saving and reserving to himself a,ll benefit of 
 the matters and things stated above, and fully relying on the same, yet for answer 
 to the said notice of contest, if the same shall he required of him, saith, &c. 
 
 It was stated orally by the contestant that he sent seasonably to the 
 contestee a copy of his notice of contest, and was informed by the mes-
 
 O'HAKA vs. KITCHIX. 379 
 
 senger that he had left the same at the place of business of the con- 
 testee, but there is no affidavit or deposition of the messenger. It was 
 stated orally by the contestee that he never received any such notice of 
 contest, and had no knowledge that any such had been left for him until 
 he was informed by the clerk of the Committee on Elections, during the 
 extra session of Congress, that such notice of contest had. pursuant to 
 the older of the House, been transmitted to the Committee on Elec- 
 tions by the Clerk of the House. 
 
 The contestee, on or about the 1'ilth of April, 1870, prepared his an- 
 swer as aforesaid. The contestee. at the opening before the committee, 
 insisted upon his objection that the contest ought to be dismissed on 
 account of the want of any proper service of the notice of contest. 
 
 Section 10;3 of the Kevised Statutes of the United States provides : 
 
 Whenever any person intends to contest an election of any member of the House of 
 Representatives of the Tinted States, lie shall, within thirty days after the result of 
 such election shall have been determined by the ofiieer or hoard of canvassers author- 
 ized by law to determine the same, give notice in writing to the member whose seat 
 he designs to contest of his intention to contest the same, and in such notice shall 
 specify particularly the grounds upon which he relies in the contest. 
 
 There is no evidence in the case that enables the committee to decide 
 when the result of this election was determined by the officers or board 
 of canvassers authorized by law to determine if. It appears by the 
 statement of the parties that certain legal proceedings were had, a re- 
 port of which was printed in the 8(>th North Carolina Reports, page 
 10.') (O'llara r.s-. Powell), and a writ of mandamus was obtained against 
 certain county canvassing boards. It was said that by an appeal to the 
 supreme court of the State of North Carolina the final decision of the ap- 
 plication for mandamus was postponed until after the expiration of are- 
 straining order which had been obtained against the State canvassing 
 board, forbidding them from canvassing the returns from this second 
 Congressional district. These proceedings make it uncertain, as a matter 
 of conjecture, when the result of the election was determined, and there 
 is no evidence whatever before the committee when in fact it was de- 
 termined, and the committee do not know from what, time the thirty days 
 within which the notice of contest must be given began to run. The 
 contestant, therefore, has not proved that he served his notice of con- 
 test within thirty days after the result of the election was determined, 
 or that he ever served it at all. t 
 
 X copy of the answer of the contestee was served upon the contest- 
 ant on the L )( .)th day of April, 1S7.. 
 
 Section 107 of the Revised Statutes is as follows: 
 
 In all com. ->r-ed-election cases the time allowed for taking testimony shall be ninety 
 days, ami the test imony shall be taken in the following order: The contt Mant shall 
 take tesi imony during the first forty days, the returned member during the succeeding 
 forty days, and the contestant may take testimony in rebuttal during the remaining 
 ten days of said period. 
 
 Section 2, chapter 111), of the statutes of 1S7.1 is as follows : 
 
 That section 107 of the 1,V\ ise<! Siatut- - !' the I'nited States shall be construed as 
 requiring all testimony in cases of contested election to be taken within ninety days 
 from the day on which the answer of the relumed member is served upn-i the con- 
 testant. 
 
 In this case the earliest testimony taken by the contestant was taken 
 on the 7th day of November. 1,S7!>, which was 1<)4 days from the day 
 on which the answer of the returned member was served upon the con- 
 testant; and the contestee objects now, as he objected through his 
 counsel at the time the testimony was taken, that the ninety days for 
 taking testimony had expired before the testimony was taken.
 
 380 DIGEST OF ELECTION CASES 
 
 The contestant sets up an oral argument, as he alleges, to the effect 
 that within ihe ninety days prescribed by law, tie exact time of which 
 he does not fix, he and the coutestee agreed 
 
 That as totbe matter alleged in contestant's complaint as to the votes thrown out 
 and not coiyited for contestant in the counties of Edgecombe and Craven, it would not 
 be necessary to take evidence, as he, said Kitchiu, agreed to make a case without 
 taking testimony. 
 
 And on the 23d day of April, 1880, he filed an affidavit to that effect, 
 as a foundation for a motion that the time for taking testimony be ex- 
 tended. The contestee denies that any such oral agreement was made, 
 and tiled his affidavit on the 26th day of May, 1880, to the effect that 
 the only conversation he ever had with the contestant on the subject 
 
 Was an interview that took place at affiant's place of business in the latter part 
 of August, A. D. 1879, long after contestant's time for taking testimony had ex- 
 pired ; and in that interview contestant stopped not more than two or three minutes. 
 and said to this affiant that Mr. Day, his attorney, had told him to stop and see 
 affiant, and see if we could not agree upon a time to take evidence, upon which 
 affiant replied, u Xo ; we cannot agree upon anything: if you expect to oust me from, 
 my seat in Congress, you must proceed strictly according to the United States stat- 
 utes;" to which contestant replied, ''All riijht ; I am not in a hurry about it. for I do 
 not expect to get my seat until about the 3d of March. \ 
 
 The contestee also filed the affidavits of Mr. P. H. Whitmore and I. 
 Eothchild, to the effect that they were each present during the month 
 of August, in the store of Kitchiu and Eothchild, when said Kitchin 
 and O'Hara had some conversation relative to the taking of testimony 
 to be used in the case which was then pending between them before 
 the Congress of the United States, and that each heard the said Kit- 
 chin tell the said O'Hara that if he wished to get him out of his seat, he 
 must proceed according to law, and that O'Hara said in reply, "All 
 right." 
 
 These affidavits were filed before the Committee on Elections, to en- 
 able the committee to consider the motion of the contestant that his 
 time be extended for taking testimony, but the Committee on Elections 
 took no action on this application, and the time for taking testimony 
 has never been extended by the House of Representatives. 
 
 One purpose of the statutes of the United States, above cited, was 
 to compel parties to a contested election seasonably to prepare their case, 
 so that it might have an early determination by the House. The prac- 
 tice which has arisen of permitting parties by agreement between them- 
 selves to postpone the time of taking testimony without any previous 
 authority of the House of Representatives, or any express ratification 
 of it by the House, is an indefensible one, and has, in the opinion of the 
 committee, been carried too far. In many cases it seems" to be con- 
 sidered by the parties that they can do as they please about it; that the 
 contest is a merely private one, and concerns no one but themselves. 
 In many States the parties are in the habit of making agreements post- 
 poning the time of taking testimony as fully as if the contest were a 
 private suit, and this practice has in some cases received the implied 
 assent of the House of Representatives. It may happen, indeed, that 
 from unforeseen causes an extension of time may be necessary, and the 
 House of Representatives may not be in session, and therefore no pre- 
 vious application can be made to it, but in such cases, if the parties 
 agree to an extension of time, the agreement should be in writing, sigud 
 by the parties or their attorneys, and application should be at once 
 made to the House of Representatives, when in session, for a ratifica- 
 tion of such agreement. 
 
 The evils resulting from permitting the parties, at their own conven- 
 ience, to regulate the time of taking testimony, without regard to the
 
 O'HARA vs. KITCHIX. 381 
 
 statutes or the public interest, are too serious ami obvious to require 
 comment. In any case, if such agreements are to be regarded, they 
 should be in writing, and signed by the parties or their attorneys. This 
 is the practice of courts generally, and is founded on sound reasons. If 
 oral agreements arc recognized, then if they are denied by either of the 
 parties at the hearing, testimony must be taken, and this collateral 
 issue be first determined, and as the decision may be such as one of the 
 parties did not expect, he may be put to the greatest disadvantage 
 after the testimony on the merits of the case has been all taken. The 
 misunderstandings that often honestly arise from oral agreements are 
 alone sufficient to justify courts in insisting that none but written agree- 
 ments will, if questioned, be recognized. \Ve think it of great impor- 
 tance in election cases that parties should understand absolutely that all 
 agreements in contravention of the statutes of the United States, in re- 
 gard to the taking of testimony, to be considered at all, should be in 
 writing, properly signed, and made a part of the record itself. Even 
 then the policy of the law requires that they should not be regarded 
 unless it appears that they were bonafide entered into for an adeq na team! 
 reasonable cause to be determined by the House of Representatives, 
 either before or at the time of deciding the election case. 
 
 On this ground the committee decline to determine on the affidavits 
 the question whether or not any such oral agreement as the contestant 
 sets up was ever made, and consider the case as if there were no such 
 agreement. The committee might, indeed, in a case where testimony 
 had been taken out of time, but with full opportunity to the other party 
 to cross-examine the witnesses and exhibit evidence in reply, and where 
 it was evident that this had been fully done, recommend to the House, 
 if they find sufficient reason therefor, that the testimony be considered 
 as if taken in time : but such is not this case, and the only alleged ground 
 for the delay in this case is that the dwelling-house of Mr. O'Hara was 
 destroyed by fire, as well as all memoranda, facts, and information in 
 writing that he had procured necessary to be used in the contest. The 
 time when the dwelling-house was destroyed by fire is not stated in any 
 of the papers, but it is said to have happened in March, 1879, and be- 
 fore the answer of the contestee was served on the contestant. This 
 does not seem to the committee a sufficient ground for admitting testi- 
 mony taken one hundred and ninety-four days after the service of the 
 answer. 
 
 The committee, therefore, are of opinion that this contest should be 
 dismissed, on the ground that the testimony was not taken in time. If 
 the testimony is considered, which the committee think should not be 
 done, the committee think it insufficient to establish the contestant's 
 case. The only depositions are the depositions of Albert Hill, Jacob D. 
 Hill, R. J. Lewis, J. F. Brinkley, John C. Williams. W. A. Duggan, and 
 W. M. Pippen. The depositions of all but Mr. Duggan and Mr. Pippen 
 were taken on the 7th day of November, 1879, after notice to Mr. Kitchin, 
 who appeared by counsel, and objected to the taking on the ground that 
 more than ninety days had elapsed since the service of the answer. 
 
 The depositions of Mr. Duggan and Mr. Pippeu, taken on the 17th day 
 of November, 1879, without any notice whatever, so far as it appears, 
 having been given to Mr. Kitchin, and without any appearance by him 
 to the taking, ought to be excluded on the additional ground of want of 
 notice, a defect which does not appear in any sense to have been waived. 
 The depositions of all these persons, except Messrs. Duggan and Pippen, 
 do not show anything that the committee can apply to this case. In 
 this case the return of the canvass of the State canvassing board is
 
 382 DIGEST OF ELECTION CASES. 
 
 not given, and the committee cannot ascertain what was included or 
 what was excluded by that board, and they have nothing before them 
 to which they can apply any corrections which the testimony might 
 convince them ought to be made. 
 
 The deposition of Mr. Duggau is to the effect that he is clerk of the 
 superior court of Edgecombe County, and that certified copies, marked 
 from A to N, both inclusive, were made from the original returns of 
 election for a Representative in Congress from the second Congressional 
 district of the State of North Carolina, on file in his office, and are tine 
 copies. These copies purport to be copies of the returns of the pre- 
 cinct canvassing boards of Edgecombe County, in 18 precincts, in all 
 of which Mr. O'Hara received 3,153 votes, and Mr. Kitchin 1,231 votes, 
 a plurality for Mr. O'Hara of 1,922; but the committee do not know, 
 and cannot ascertain from the evidence, except as hereinafter stated, 
 how many of these returns are included in the canvass and return made 
 by the State canvassing board. 
 
 The deposition of Mr. Pippen, who was a member of the board of 
 canvassers of the county of Edgecombe, in reply to a question, as fol- 
 lows : " State how many votes were excluded in the count made by the 
 board of county canvassers from the returns as made by the judges of 
 election in the several townships of the county to them, and why they 
 were excluded," is as follows : 
 
 A. According to the returns of the judges of election, in township No. 1, precinct 
 No. 3, James E. O'Hara received 127, W. H. Kitchin 13, and James H. Harris 3. These 
 were excluded from the count by the county board of canvassers on account of the 
 judges of election not being sworn. 
 
 In township No. 2 James E. O'Hara received 383 votes; W. H. Kitchin 114. These 
 were excluded from the count by the county board of canvassers on account of the 
 judges of election haviug been swom by W. T. Cobb, one of the justices of the infe- 
 rior court of said county of Edgecombe ; it being the opinion of said board of can- 
 vassers that he had no right to administer the oath to them. 
 
 In township No. 5 W. H. Kitchin received 86 votes; James E. O'Hara 277 votes. 
 These were excluded from the count by the county board of canvassers on account of 
 the judges of election having been sworn by the registrar, who was not a justice of 
 the peace, and had no other authority to administer save that of being registrar ; it 
 being the opinion of said board of canvassers that he had no right to administer the 
 oath to them. 
 
 In township No. 7, precinct Xo. 1, W. H. Kitchin received 52 votes ; James E. 
 O'Hara 147 votes. These were excluded from the count by the county board of can- 
 vassers on account of the judges of election being sworn by a reputed justice of the 
 peace from another county ; the said board of canvassers being of the opinion that 
 said justice had no right to administer the oath out of the county in which he was a 
 justice as aforesaid to the judges of election. 
 
 In township No. 7, precinct No. 2, James E. O'Hara received 190 votes, and W. H. 
 Kitchin received 30 votes. These were excluded from the count by tlu- county board 
 of canvassers on account of the judges of election not having been sworn, and vague- 
 ness and irregularity in the return. 
 
 In township No. 11 W. H. Kitchiu received 56 votes and James E. O'Hara 144 votes. 
 These were excluded by the county board of canvassers on account of the judges of 
 election not having be.cn sworn. 
 
 In township Xo. 14 W. H. Kitchin received 75 votes; James E. O'Hara 83 votes; 
 James H. Harris 5; George W. Stauton 2 votes. These were not counted by the 
 board of canvassers, as they were not returned until the day after the board of can- 
 vassers had adjourned. 
 
 This deposition shows that 1,351 votes for Mr. O'Hara and 420 votes 
 for Mr. Kitchin were returned by the various precinct boards as cast 
 for them, respectively, which were not counted by the county canvass- 
 ing board, for the reasons respectively given. The plurality of Mr. 
 O'Hara in these precinct returns is 925. The members of this commit- 
 tee in the report and views of the minority made to the House in the 
 contested election case of Jesse J. Yeates against Joseph J. Martin 
 have ex pressed their opinions upon the law of the State of North Car- 
 olina applicable to the exclusion of the returned votes of precincts for
 
 O'HARA vs. KITCHIN. 383 
 
 the various reasons given by Mr. Pippen, and beg leave to refer the 
 House to that case. 
 
 It has been stated that the number of votes received by Mr. Kitchin 
 and Mr. O'llara, as canvassed by the State canvassing board, is not in 
 evidence. In the Congressional Directory, which is not evidence, Mr. 
 Kitchin is put down as having received 10,804 votes, against 9,062 
 votes for Mr. O'llara. If this statement be true as a statement of the 
 votes as canvassed by the State board of North Carolina, it will be seen 
 that Mr. Kitchin's plurality is 1,142, which is greater than the plurality 
 of 925 received by Mr. O'Hara in the precincts mentioned in Edgecoinbe 
 County, which were not counted by the county canvassing board. So 
 that if these were all admitted, upon which, for the reasons given in 
 the case of Yeates vs. Martin, the committee do not agree, there is no 
 reason to suppose that Mr. ,'IIara would be elected ; certainly there is 
 no evidence that he would be. The burden of proof is on the contest- 
 ant, and if all the testimony he has taken were admitted and considered, 
 it is not sufficient to enable the committee to determine that he was 
 elected Representative. 
 
 No testimony has been taken by Mr. Kitchin whatever. He relied 
 on his objection that the time for taking testimony had expired when 
 Mr. O'Hara began to take testimony. He had a right to rely on this 
 objection at that time, and even if the House should determine to con- 
 sider testimony in this case it would be unfair to Mr. Kitchiu to do so 
 until after an opportunity were given him to take his testimony. 
 
 It is manifest from the notice of the contest and the answer that there 
 were very grave and important questions in dispute in this election, and 
 that the matters in dispute concerned a far greater number of votes than 
 the plurality of the sitting member, as given in the Congressional Direc- 
 tory; but on most of these questions there is no testimony whatever, one 
 way or the other, and the little testimony that has been taken either 
 has no significance at all, by reason of a want of testimony to connect 
 it in any intelligent manner with the questions at issue or from some 
 other cause, or the testimony taken which is intelligible and can be ap- 
 plied to the case does not establish the case of the contestant. The 
 committee repeat that in their opinion the evidence in this case should 
 not be considered. 
 
 The committee therefore recommend the passage of the following res- 
 olutions : 
 
 Resolved, That James E. O'FIara is not entitled to a seat in this House 
 as a Representative in the Forty-sixth Congress from the second Con- 
 gressional district of North Carolina. 
 
 Resolved, That William H. Kitchin is entitled to his seat in this House 
 as a Representative in the Forty-sixth Congress from, the second Con- 
 gressional district of the State of North Carolina. 
 
 KMOKY SPEER. 
 
 W. A. FIELD. 
 
 JJHN H. CAMP. 
 
 W. G. COLERICK. 
 
 SAM'L L. SAWYER, 
 
 E. C. P MISTER. 
 
 E. OVERTON, JR. 
 W. H. CALKINS. 
 
 J. WARREN KKIFER. 
 
 F. E. BELTZHOOVER. 
 I concur in the conclusion reached. 
 
 VAN H. MANNING.
 
 384 DIGEST OF ELECTION CASES. 
 
 JESSE J. YEATES vs. JOSEPH J. MARTI> r. 
 
 FIRST CONGRESSIONAL DISTRICT OF NORTH CAROLINA. 
 
 The contestant alleges irregularities on the part of the election officers in rejecting 
 certain polls ; in not opening the polls at the proper time ; in permitting a can- 
 didate to act as a registrar of election ; and in counting tickets having a device 
 on them, to wit, the words "Republican ticket." 
 
 Held, That it was illegal for a county returniug-board in North Carolina to reject 
 the returns from a township because the registrar of election delivered the returns 
 to the returning-board instead of one of the judges of election, there being no 
 fraud or irregularity in the conduct of the election shown. 
 
 Where it is clearly shown that at a precinct the election was not commenced until 
 three hours after the time fixed by law the burden of proof is upon him who 
 seeks to uphold the election to show that the result of the election was not af- 
 fected by such irregularity. 
 
 Where, by law, four duly qualified inspectors of election are required at a precinct, 
 and two persons only act, and they not properly qualified, the returns made by 
 them are illegal and must be rejected. 
 
 Where the law of a State declares "that no person who is a candidate for any office 
 shall be a registrar, judge, or inspector of an election," and it appears that one of 
 the candidates (contestee) did for a time act as registrar at the election, the vote 
 of the precinct must be rejected. 
 
 Under a statute which provides that "the ballots shall be on white paper, and may 
 be printed or writteu or partly written and partly printed, and shall be without 
 device,'' ballots having at the head the words "Republican ticket" must be re- 
 jected as being a device. 
 
 The House adopted the majority report January 29, 1881. 
 
 JANUARY 25, 1881. Mr. SPEER, from the Committee on Elections, sub- 
 mitted the following 
 
 KEPORT: 
 
 The Committee on Elections, to whom teas referred the contested -elect ion 
 case of Jesse J. Yeates vs. Joseph J. Martin, from the first Congressional 
 district of North Carolina, having had the same under consideration, 
 beg leave to submit thefolloicing report : 
 
 After investigating the evidence in this case, in the light of the law 
 applicable thereto, the committee respectfully submit the following re- 
 port: 
 
 The election which is contested was held on the 5th day of Novem- 
 ber, 187.8, to select a Representative for the Forty sixth Congress from 
 the first Congressional district of North Carolina. There were three 
 candidates voted for Respass, Independent Republican ; Martin, Re- 
 publican ; and Yeates, Democrat. 
 
 The certificate of the office of the secretary of state will exhibit the 
 following, stati'inent of the vote, as appears from the records in that
 
 YEATES VS. MARTIN. 385 
 
 office, from which it appears that Martin, coutestee, received 51 more 
 votes than Jesse J. Yates : 
 
 Vr-ilH-S. 
 
 Martin. Respass. 
 
 Beaufort County 1,397 1,129 178 
 
 Bertie County 988 1,499 1 
 
 Cftmden Couuty 567 417 8 
 
 Chowan County 601 797 ' 1 
 
 Cnrrituck County 635 289 1 
 
 Davie County 112 131 10 
 
 GatesCounty 7.31 449 2 
 
 Hertford County 90."> 1,029 
 
 Hyde County . '. 5M 406 104 
 
 Martin Con tit> 1,275 1,166 1 
 
 Pamlico County 423 332 51 
 
 1'a.squotauk County 423 749 i 2 
 
 Perquiuioiis County 700 864 
 
 Pitt Countv 1,935 1.R06 8 
 
 Tyrrell County 332 240 ', 2 
 
 Washington County 4X0 832! 61 
 
 Total 12.0/-4 12. 1.;:. 430 
 
 The returniiig-board of North Carolina, under the law of that State, 
 consists of the governor of the State, the secretary of state, the attorney- 
 general, and two State senators. The contestant objected to the legality 
 of the return of the county of Pasquotauk, but the board held that it bad 
 no judicial functions, and declined to consider the objection. To consider 
 that action of the returuiug-board is not material. The contestant in- 
 sists that the county canvassiug-board of Pasquotauk Couuty acted 
 illegally in rejecting the returns of Providence Township, where contest- 
 ant received a majority of 39 votes. The action of this board seenis to 
 have been arbitrary and unjustifiable. There was no allegation of fraud 
 or irregularity in the conduct of the election. It was not disputed that 
 Mr. Yeates received a majority of .">9 votes at this precinct, but the can- 
 vassing-board for the county refused to count this return, because the 
 registrar of the election at Providence Township delivered the returns 
 to the county canvassing-board, when the friends of the contestee in- 
 sisted that one of the judges of the election was the proper party to 
 deliver those returns. The judges of the election in this case appointed 
 the registrar, who carried up the returns and delivered them conformably 
 to law. To reject this return in this county was manifestly illegal, and 
 the evidence shows that the contestant is entitled to have 39 votes added 
 to his aggregate vote by the rectification of this error, this being con- 
 testant's majority in that precinct. Indeed it is distinctly admitted by 
 the contestee, on page 29 of his brief: " We do not regard this objec- 
 tion sufficient to justify the rejection of the return." But he insists that 
 other irregularities offset this gain of the contestant. 
 
 He alludes specially to 135 votes claimed bv him in Salem Township 
 which were rejected by the county canvassing-board of that county, as 
 iie says, for the same reason that the Providence returns were rejected. 
 If this were sustained by the facts it would be a more than sufficient 
 reply, but the evidence falls far short of the allegation of the contest c.-. 
 It is contended that this committee cannot reject the return because 
 the only record in relation to it is as follows : " The votes as returned 
 by the board of canvassers from the precincts of Salem and Providence 
 were not received and counted by the board, on account of informality, 
 and. therefore, not counted in the^above statement." Signed B. F. Over- 
 man, clerk of the county board of county canvassers. 
 H. Mis. 58 25
 
 386 DIGEST OF ELECTION CASES. 
 
 The committee are not asked to reject this vote. It is already rejected 
 by the proper authorities of the county, and this record furnishes a con- 
 clusion only. Aside from the fact that this board, in the absence of 
 proof to the contrary, is entitled to the legal presumption that they have 
 done their duty, the evidence discloses that there were other and vital 
 informalities in the conduct of the election at that precinct, and there is 
 no evidence whatever that the Salem vote was thrown out for the same 
 reason as the Providence vote. The evidence of the contestee discloses. 
 that the polls were not opened until 12 o'clock, when the law is manda- 
 tory that they should be opened at 7 5 that before they were opened a> 
 large number of the voters of the precinct had left ; that not more thai* 
 half of the vote of the precinct was polled ; that there was no registrar 
 appointed, and that officers who held the election were not sworn. 
 
 It would be a violent assumption on the part of the committee to de- 
 termine, in the absence of evidence to show the fact, that the vote of 
 Salem Township was excluded for the same reason as the vote of Provi- 
 dence Township. It is quite clear, therefore, that the contestant is en- 
 titled to 39 votes for Providence Township, which were not allowed him, 
 by this mistake of the county canvassing-board, and that contestee is 
 entitled to nothing by reason of the rejection of the vote in Salem. 
 
 Tour committee find that the irregularity of the election at the South 
 Millsprecinct throws the burden of proof upon the contestee to show that 
 the result of the election was not affected by such irregularities. The 
 proof shows very clearly that the election at this precinct was not com- 
 menced until three hours after the time fixed by law. McCrary on 
 Elections lays down the general principle that if the deviation from reg- 
 ular hours is great, or even considerable, the presumption will be that 
 it has affected the result, and the burden will be upon him who seeks to 
 uphold the election to show affirmatively that it has not. (See McCrary, 
 sec. 142.) Under the circumstances of this case we hold that the stat- 
 ute of Korth Carolina was so far disregarded as to vitiate the election 
 at that precinct. The obvious purpose of the law is to give all voters 
 an opportunity of casting their ballots. 
 
 Not only were the voters of that precinct deprived of two-fifths of 
 the time allowed them by law, but the evidence discloses the fact that 
 only about one-half of the vote of the precinct was polled at the elec- 
 tion, the registration of that precinct being 764, and the vote cast only 
 390. There were then 374 voters living in that election district who did 
 not vote. There is other authority going to establish the rule, which, 
 the committee submits, should govern the count of this precinct, one a 
 precedent found in Parson's Select Cases, volume 2, page 533. Where 
 the law required the polls to be kept open until 10 p. in., and they were 
 closed at 8 p. in., and it appeared that a full vote had not been cast, 
 the court held the election to be void, and rejected the vote of the pre- 
 cinct, and the court decided as follows : " When an election is closed 
 up one or two hours before the time, and it is manifest from the assess- 
 ment, compared with the tally-papers, that there were numerous citi- 
 zens who had not voted, and sufficient to have changed the result, we 
 will, on this ground, set the election aside and pronounce it utterly 
 void. So, also, if they be opened at a much later time than the time 
 prescribed by law." (Chadwick vs. Melvin, Brightley's Election Cases, 
 page 251.) 
 
 The soundness of this rule is indisputable; otherwise the door is 
 opened for unmeasured frauds. Suppose, for instance, in a heated elec- 
 tion, one party should by accident be prevented from polling its heavy 
 vote until late in the afternoon, how easy would it be for a partisan
 
 YEATES VS MARTIN. 387 
 
 board of managers to defeat a man who otherwise would be the choice 
 of the people. Aud, again, by refusing to open the polls at the time 
 fixed by law in the forenoon of election day, and by delaying for three 
 or four hours and systematically challenging the voters, and consuming 
 as much time as possible with each voter, it would be easy to procrasti- 
 nate, so that the hour of closing the polls should arrive and a large 
 vote remain impelled. But the committee is not confined to this objec- 
 tion to the legality of the vote at that precinct. The law requires four 
 inspectors; there were only two. 
 
 It is insisted that a quorum of the board was sufficient, but two is not 
 a quorum of four. The law requires that the inspectors should be 
 sworn by some person authorized to administer an oath. They were 
 not so sworn, but the sheriff', who was a mere intruder, and who made 
 himself extremely officious on that occasion, presumed, outside of his 
 limited powers, to administer the oath. The returns were signed and 
 certified by persons who really were not election officials under the laws 
 of North Carolina, and any other citizens present had the same right 
 with them to receive votes and certify and send up a return. 
 
 It is insisted that one of the two inspectors who officiated was drunk, 
 and unfit for the proper discharge of his duties, and it is noteworthy . 
 that with singular infelicity this gentleman was selected as the custodian 
 in chief of the ballot-box. Bribery and intimidation are also insisted 
 upon. The following extract from the evidence of John W. Harrington 
 (Record, page 33) is very pertinent in this connection: 
 
 Q. Were yon told by any*one prior to the day of the election that Mr. Kehoe, of 
 
 the Republican executive committee of the State of North Carolina, was going to- 
 semi down S'J.'ii.'O for electioneering purposes, and that a portion of that sum would 
 besent ti> yon.' A. I was. I iTMtafd by .Joseph .1. Martin that Mr. Kehoe. was going 
 to send down S'J.500 to him (Martin) for electioneering purposes, and that he (Martin) 
 would send some of it to me, and wanted me to do all I could with it ill his interest. 
 
 But it is unnecessary for us to consider these questions as controlling 
 when we have before us proof that the polls were not opened in com- 
 pliance with law; that the requisite number of inspectors did not 
 officiate; that those who did officiate were not sworn, and that but 
 one-half of tie registered vote at that precinct was polled. The com- 
 mittee therefore feel it obligatory upon them to reject entirely the vote 
 of that precinct. The effect of this conclusion on the contest is to with- 
 draw i\ 4- votes from the certified vote of the contestee. 
 
 At Hamilton precinct likewise the contestee reeeiveda majority of 04 
 votes, and the contestant objects to the vote being counted, for the rea- 
 son that the contestee acted as the registrar of the election. The law of 
 Xorth Carolina (Laws of lS7G-'7 7, section 5, page 517) is mandatory on this 
 subject. It declares "that no person who is a candidate for any office 
 shall be a registrar, or judge, or inspector of an election." It is impos- 
 sible for us to conceive of a provision more distinct in its terms, or one 
 which is from necessity more mandatory than this. It is conceded by 
 the contestee in his brief that he did for a time act as registrar at this 
 precinct. In the interest of the purity of elections, the committee are 
 compelled to reject the vote of a precinct where a practice so reprehen- 
 sible has been adopted by the claimant of this honorable and responsi- 
 ble office. }s"o man should be permitted to be judge in his own case or 
 take advantage of his own illegal act. The evidence fails to show that 
 the conduct of Mr. Martin was justifiable, fair, and impartial while 
 acting in this important official character; and even if it should be 
 held that this conduct on the part f the contestee did not of itself viti- 
 ate the result of the poll at that precinct, it will be admitted that the
 
 388 DIGEST OF ELECTION CASES. 
 
 eontestee, who conducted his own election in this way, must have 
 affirmatively shown that no illegal advantage was taken because of his 
 action. 
 
 Vandemere precinct. Here the polls were not opened until after 11 
 o'clock over four hours after the time fixed by law. More than one- 
 third of the voters at the precinct failed to vote, and a large number of 
 voters left before the polls were opened, under the belief that no elec- 
 tion would be held. By a parity of reasoning, the committee are com- 
 pelled to apply the same rule to this case that they did to the South 
 Mills precinct, and we have in this instance a practical illustration of 
 the unfairness practiced by refusing to comply with the election law fix- 
 ing the hour when the polls are to be opened. At this precinct Mr. 
 Martin had a certified majority of 40 votes. 
 
 The contestee advances the claim that he is entitled to 108 votes not 
 counted for him at Merry Hill precinct. The committee are of the opin- 
 ion that under the stringent laws of North Carolina Mr. Martin is not 
 entitled to these votes. The committee come to this conclusion with 
 much reluctance. The reasoning, however, which leads to this couclu- 
 .siou is unanswerable, and under the statute leaves the committee no 
 . discretion. 
 
 Oue hundred and eight votes for Mr. Martiu were thrown out and not counted, be- 
 cause they had on them the words "Republican ticket," at or near the head of the 
 ticket, on the same side as the name of the candidate and office. They were thrown 
 out on the ground that the words " Republican ticket" were a device within the mean- 
 ing of the laws of North Carolina. Mr. Martin contends that these ballots should be 
 counted for him. * 
 
 Section 18, chapter '275, of the Laws of North Carolina, 1877, provides: 
 " * * The ballots shall be on white paper and may be printed or written, or 
 partly written and partly printed, and .shall be without dtricc. 
 
 'Six:. 20. When the election shall be finished the registrars and judges of election. 
 an presence of such of the electors as may choose to attend, shall open the boxes and 
 count the ballots, reading aloud the names of the persons who shall appear on each 
 ticket; and if there shall be two or more tickets rolled up together, or any ticket shall 
 contain the names of more persons than such elector has a right to vote for, or snail 
 JMIX! a device upon it, iu either of these cases such tickets shall not be numbered in tak- 
 ing the ballots, but shall be void, and the said counting of votes shall be continued 
 -without adjournment until completed and the result thereof declared." 
 
 If these words constitute a device within the meaning of the law, the statute is plain 
 that the ballots are void and are not to be counted. The counsel for the routes tee, 
 while denying that these words constitute a device, contends also that being on the 
 
 inside of the ticket the case is within the decision of D r*. The State (29 Indiana, 
 
 308), and Napier vs. Mahew (35 Indiana, 275). See McCrary, section 404 ; Neff r*. 
 .Shanks (Forty-third Congress). 
 The statutes of Indiana provide : 
 
 "Sue. 18. When any person otters to vote the inspector shall pronounce his name 
 in an audible voice, and if there be no objection he shall receive his ballot, and in t he- 
 presence of the other judges put the same unopened into the ballot-box, when the 
 name of such elector shall be again distinctly repeated by one of the other judges in 
 .the presence of the clerks. 
 
 ".^EC. 23. That all ballots which may be cast at any election hereafter held iu this 
 .State shall be written or printed on plain white paper, without any distinguishing 
 marks or other embellishment thereon, except the name of the candidates and the 
 office for which they are voted for, and inspectors of elections shall refuse all ballots 
 offered of any other description: Provided, Nothing herein shall disqualify the voter 
 from writing his own name on the back thereof." 
 
 The Indiana statute requires the inspector to put the ballot into the ballot-box nn- 
 opened, and that the ballots shall be without any distinguishing marks or other em- 
 bellishment thereon, and that the inspectors of election shall refuse all ballots offered 
 of auy other description, t'uder this statute the Indiana court held that the words 
 "City union ticket " on the inside of the ballot, even if it be conceded that these 
 words constitute ;i distinguishing mark, did not render the ballot void, and that the 
 object of the act was accomplished by requiring all ballots to be uniform in external 
 iippeajance. The same miestion was decided iu Stanley vs. Mauley (35 Indiana, 275), 
 where the words were ''Republican ticket" on the inside ot the ballot. Under the
 
 YEATES VS. MARTIN. , 383 
 
 Indiana statute the court say that the statute " does not authorize the inspectors anil 
 judges to reject a ballot upon the discovery of such a mark or embellishment at the 
 time of counting out the ballots which could not be seen by the inspectors at the time 
 it was voted." The North Carolina statute is express that the ballots shall be with- 
 out device, and that if the ticket shall have a device upon it, it shall not be numbered 1 
 in taking the ballots, but shall be void. This difference in the statutes renders the 
 Indiana decisions inapplicable, and the sole question is, are the words "Republican, 
 ticket" on the inside of a ballot a device within the meaning of the North Carolina 
 statute. With the policy of the statute we have nothing to do ; one purpose of the 
 statute may have been to prevent bystanders from knowing from observation how the 
 voters voted. No statute can altogether prevent this; experts can easily distinguish 
 between different kinds of white papers, and the printing of the ballots of the oppo- 
 site parties would ordinarily be done at different printing offices with different type 
 and ink, and the arrangement of the names of the persons and of the office, the punc- 
 tuation, and the place on the ticket of the printed matter would ordinarily be differ- 
 ent and apparent to a well-trained eye. The intention of the statute could be easily 
 evaded if it did not also prescribe the size of the ticket and the size of the type, which- 
 the North Carolina statute has not done. Still the statute, such as it is, must be en- 
 forced, even if some provisions have been omitted that are necessary completely to 
 appreciate its intention. 
 
 Another purpose of the statute may have been to compel, as far as is possible, th& 
 voter to select the persons he votes for independently of any contrivances on the- 
 ticket calculated to inform or misinform him of the opinions of the persons voted for,, 
 because devices are often contrived to mislead. Either way, we think that words- 
 prominently printed on a ticket and intended to designate or describe it, and which 
 have a distinct meaning in themselves, such as, if untrue, might mislead the votery 
 and whether true or untrue would render the ticket easily distinguishable, must b& 
 held to be a device within the meaning of the law. (McCrary on Elections, section 
 401.) These votes were rejected by the State authorities, and we think rightfully. 
 
 The committee cannot sustain the claim that is made by the con- 
 testee, that 164 votes should be counted for him at the Goose Nest 
 precinct, which were rejected by the managers of the election there. 
 It is not denied by the contestee that all who were denied the right of 
 voting at this precinct were registered in Hamilton precinct, which was 
 another precinct in the same county. The law of North Carolina re- 
 quires that a voter who is registered in one precinct cannot vote at 
 another without producing a certificate of the erasure of his name 
 from the registration list of the precinct where he is registered. The 
 reason for this rule is obvious. If voters are registered in two or more 
 precincts in the same county, the entire object of the registration law 
 is avoided, for they might vote in every precinct where they are regis- 
 tered. 
 
 Where a voter admittedly registered at Hamilton precinct presents 
 himself at Goose Nest precinct for the purpose of voting, he cannot 
 vote, unless there is this required evidence of honest registration. That 
 this construction was placed upon the law of North Carolina by all of 
 tin isc \\ho were careful enough to guard their rights is evidenced by the 
 fact that there were 52 votes cast for the contestee at this precinct who 
 produced the certificates of erasure under the statute. Proclamation 
 was made at a public meeting of the political parties on the day pre- 
 vious to the election that it was necessary to procure these certificates ; 
 that all who applied in person or by proxy, whether Democrats or Re- 
 publicans, received the certificates. Every man who voted at Goose 
 Nest precinct was registered, and produced the requisite certificate of 
 erasure of his name from Hamilton precinct. A full board of inspectors. 
 Democrats and Republicans, determined before the election that these 
 certificates were essential. The full board of election judges, Democrats 
 and Republicans, were agreed to reject these votes. Before, however, 
 the committee can set aside the action of the authorities of the State 
 of ^North Carolina, they must have submitted to them better evidence
 
 390 DIGEST OF ELECTION CASES. 
 
 than that which the contestee has offered that 154 votes were rejected 
 at that precinct. 
 
 It was incumbent on the contestee to support this claim by the best evi- 
 dence of which the nature of the case would admit. So far from this 
 being true, the coutestee has offered testimony of one William A. John- 
 son, a by-stander, who says that he personalty saw 160 ballots that were 
 offered for J. J. Martin, and which were rejected by the judges of elec- 
 tion, and six of whom were afterwards permitted to vote. Not one of 
 these 154 votes was called, although they were all residents of that 
 precinct. The witness, W. A. Johnson, tells a very incredible story, 
 and it is but reasonable that had 354 voters been refused the right 
 of voting at that precinct, the contestee would have offered evidence 
 sufficient to satisfy the committee of the fact; but the committee will 
 not interfere with the construction of the laws of North Carolina as ap- 
 plicable to this precinct, and therefore decline to accede to the dem?nd 
 of the contestee and count 154 votes for him. None of these voters are 
 identified by evidence sufficient. 
 
 From the foregoing conclusions we have the following result: 
 
 The returned vote for Mr. Martin, the contestee, was 12, 135 
 
 From which deduct his majority in South Mills f>4 
 
 In Hamilton 64 
 
 In Vandemere 40 
 
 168 
 
 Leaving his true vote 11, 967 
 
 The returned vote for Mr. Yeates, the contestant, was 12, 084 
 
 To which should be added his majority in Providence Township 39 
 
 Making his true vote in the district 12, 133 
 
 From which deduct the true vote of Mr. Martin 11, 967 
 
 Which shows majority for Mr. Yeates 156 
 
 The conclusion of the committee, therefore, is embodied in the follow- 
 ing resolutions : 
 
 Resolved, That Joseph J. Martin was not elected, and is not entitled 
 to a seat in this House as a member of the Forty sixth Congress, from 
 the first Congressional district of North Carolina. 
 
 Resolved, That Jesse J. Yeates was elected, and is entitled to a seat 
 in this House as a member of the Forty-sixth Congress, from the first 
 Congressional district of North Carolina. 
 
 EM GEY SPEER. 
 
 F. E. BELTZHOOVER. 
 
 E. C. PHISTER. 
 
 VAN H. MANNING. 
 
 WILLIAM M. SPRINGER. 
 
 We concur in the result declared in the above report, but do not think 
 that the vote of Hamilton precinct should be excluded. 
 
 W. G. COLERICK. 
 SAM'L L. SAWYER.
 
 YEATE3 VS. MARTIN. 
 VIEWS OF THE MINORITY. 
 
 391 
 
 Mr. FIELD, from the committee, presents the views of the minority in 
 
 this case, as follows : 
 
 The contest in this case arises out of an election held on the 5th day 
 of November, 1878, for a Representative in Congress from the first Con- 
 gressional district of North Carolina. 
 
 The abstract of votes cast at this election, duly certified from the 
 office of secretary of state, and found on page 41 (Record) is as follows : 
 
 Abstract of votes cast at an election held for members of the Forty-sixth Congress of the United 
 States on Tuesday, November 5, 1878, in the State of North Carolina. 
 
 FOR CONGRESS FIRST DISTRICT. 
 
 Counties. 
 
 Rej 
 
 J 
 
 2 
 
 
 
 Colored. 
 
 V 
 
 g 
 Aggregate. 
 
 Jesse J. Yeatea. 
 
 "-5 
 a. 
 
 *l 
 
 ! 
 
 
 
 >- 
 
 Iteaufort 
 
 
 
 
 1.397 
 988 
 567 
 601 
 635 
 112 
 751 
 905 
 554 
 1,275 
 423 
 423 
 706 
 1,935 
 332 
 480 
 
 1.129 
 1,499 
 417 
 797 
 289 
 131 
 449 
 1,029 
 406 
 1,166 
 332 
 749 
 864 
 1,806 
 240 
 832 
 
 178 
 1 
 8 
 1 
 1 
 1 
 
 Bertie 
 
 
 
 
 Caroden 
 
 
 
 
 <^lio\van 
 
 
 
 
 Currituck 
 
 
 
 
 Dare ... . 
 
 
 
 
 Gates 
 
 
 
 
 Hertford 
 
 
 
 
 
 Hyde 
 
 
 
 
 1M 
 1 
 51 
 o 
 
 a 
 
 2 
 61 
 
 Mart in 
 
 
 
 
 Pamlico 
 
 
 
 
 1'asquotank 
 
 
 
 
 
 
 
 
 Pitt 
 
 
 
 
 Tyrrell . . 
 
 
 
 
 Washington 
 
 
 
 
 i 
 
 Total 12,084 12,135 
 
 430 
 
 A general election for State officers had been held in August preced- 
 ing this election in November, and the November election was for Rep- 
 resentatives in Congress only. 
 
 The contestant attacks the election held at South Mills precinct, in 
 Camden County ; at Vaudemere precinct, in Pamlico County, and Ham- 
 ilton precinct, in Martin County, and the action of the cauvassing-board 
 of Pasquotank in refusing to count the votes of Providence Township, 
 in Pasquotank County. 
 
 Whatever larger claim the contestant made in his notice of contest, 
 his proofs have been conriued to these precincts and township, and to 
 rebutting the claims made on the part of the coutestee that additional 
 votes should be counted for the coutestee at Merry Hills precinct, in 
 Bertie County; at Salem precinct, in Pasquotank County, and at Goose 
 Nest precinct, in Martin County. 
 
 SOUTH MILLS PRECINCT. 
 
 At this precinct the contestee received a majority of 04 votes. The 
 contestant objects to counting these votes for several reasons, which 
 will be considered in their order.
 
 392 DIGEST OF ELECTION CASES. 
 
 The first reason alleged is that the polls were not opened as early in 
 the morning as the statutes of North Carolina require. 
 
 Section 16 of chapter 275 of the act of North Carolina of 1877 pro- 
 vides that " the polls shall be opened on the day of election from 7 
 o'clock in the morning until sunset of the same day, and no longer." 
 
 Sawyer, the sheriff', page 30, swears that the polls were opened "about 
 9 o'clock, and might have been more, but I cannot say." 
 
 Barringtou, page 31, swears : " When I left here after coming the 
 second time, I think it w r as then between 9 and 10 o'clock, and the polls 
 were not then opened.'' 
 
 Spence, page 34: "My idea is that it was as late as 10 o'clock" 
 when the polls were opened. 
 
 Gregory, page 35: "The sun was at least an hour high" when the 
 polls were opened. 
 
 Spence, page 36, acted in the capacity of registrar, and swears that 
 "it was somewhere about 15 minutes after 9 o'clock" when the polls 
 were opened. 
 
 It may be assumed that it was between 9 and 10 o'clock when the polls 
 were opened. 
 
 The reason of the delay in the opening of the polls is by different wit- 
 nesses stated as follows : 
 
 John E. Spence, registrar, page 37 : " There were three reasons why 
 they," that is, the polls, "were not opened earlier: first, the inspectors 
 were not all present; second, there was no one present to qualify them ; 
 third, we had no house in which to hold the election." 
 
 Section 9, chapter 275, acts of North Carolina. 1877, is : 
 
 The board of justices of the peace for each county, on or before the first Monday of 
 the month next precwding the month in which each election is held, shall appoint four 
 judges or inspectors of elections, two of whom shall be of a different political party, 
 when possible, from the registrars, at each place of holding election in their respect- 
 ive counties. The said judges of election shall attend to the places for which they 
 are severally appointed, on the day of election, and they, together with the regis- 
 trars for such precincts or townships, who shall attend with the registration books, 
 after being sworn by some justice of the peace, or other person authorized to admin- 
 ister oaths, to conduct the election fairly and impartially according to the constitu- 
 tion and laws of the State, shall open the polls and superintend the same until the 
 close of the election. * * * 
 
 SEC. 5. The board of justices of the peace of the several counties shall select, on or 
 before the first Monday of the mouth preceding each election, one or more persousfor 
 each election precinct, who shall act as registrars of voters for such precinct. * * J 
 If any registrar shall refuse or neglect to perform his duties, the justices of the peace 
 for the township may remove him and appoint another in his place. * * * 
 
 Under the division entitled "Congressional elections," of said chapter 275, section 
 49, is the following: " The electioo," that is, the election fora Representative in Con- 
 gress, "shall be held at the same times and places as are prescribed for holding elec- 
 tions for members of the general assembly, on the Tuesday next after the first Mon- 
 day in November preceding the termination of each Congress, and shall be conducted 
 by the sheriffs or by other persons appointed therefor in like manner :is elections for 
 members of the general assembly."' 
 
 The registrar, John E. Spence, was a democrat (page 35). The regu- 
 larly appointed inspectors were Joseph N. Spence, Wiley N. Gregory, 
 Evan Overton, and James H. Sawyer; of these only Spence and Over- 
 ton were present (page 36). Gregory, a voter at South Mills precinct, 
 and a Democrat, who was present at the election and voted, declined 
 to serve as inspector (page 35). The registrar also appointed John T. 
 Pritchard one of the inspectors, who served for a short time, when Ken- 
 neth It. Sawyer took his place. Sawyer was not appointed, but it may 
 fairly be inferred that he acted with the assent of the registrar (pages 
 36, 37). The registrar requested several others to fill the vacancy and 
 they refused (page 37). The election was conducted by these three in-
 
 y BATES VS. MARTIN. 393 
 
 specters (page 36). To two at least of these three inspectors the oath 
 was administered by the sheriff, who swears that he qualified these in- 
 spectors (page 30). The registrar was not sworn (page 36). 
 Section 9, chapter 275, acts of 1875, provides : 
 
 * * * If for any cause any person appointed .judge of election shall fail to attend, 
 the registrars of such township shall appoint sonic discn-ct person to act as Mich, who 
 shall be of tin- sain- political party as the absent judge or judges. 
 
 The testimony of the sheriff, registrar, and of other witnesses to these 
 facts is as follows : 
 
 Deposition of ^f. X. Saicyer. 
 
 M. N. SAWYKK, being duly sworn, deposeth and saith as follows: 
 
 Question. What is your age and occupation ? Answer. I am thirty-two years of 
 age, and am sheriff' of Cainden County. 
 
 Q. Were you present at the election held for a member to represent the first Con- 
 gressional district of North Carolina to the Forty-sixth Congress of the United States, 
 held at South Mills, Camdeu County, North Carolina, on the 5th dav of November, 
 1878? A. I was. 
 
 Q. About what time do yon think the polls were opened ? A. About 9 o'clock, 
 and might have been more, but I cannot say. 
 
 Q. Did you administer the oath to inspectors of the polls in South Mills Town- 
 ship on said day? A. I did to those who were present, but I left the polls at 
 about 11 o'clock, and up to that time there were but two of the regularly appointed 
 inspectors, besides the registrar, at the polls. 
 
 Q. Do you know whether any of the inspectors were qualified by the registrar of 
 this township to hold said election or not? A. I do not. 
 
 Cross-examined by C. H. SPENCER, attorney for Joseph J. Martin, contestee: 
 
 Q. In what capacity did you administer the oath to the inspectors of the polls T A. 
 As sheriff. 
 
 (j. Were you requested to do so by the inspectors of the election T A. I was by 
 some one. but by whom I do not now remember. 
 
 Q. How many inspectors did you qualify ? A. Three. 
 
 (}. Do yon know the inspectors who were appointed by the board of justices to hold 
 said election, and, if so, state what yon know of their politics ? A. I do; two were 
 Democrats and two were Republicans. 
 
 Q. Which were present at the opening of the polls ? A. One Democrat and one 
 Republican. 
 
 Q. Do you know of any reason why the polls were not opened at the proper hour? 
 A. I do not. 
 
 Q. Was the registrar present when you arrived; and, if so, state what you know 
 of his polities ? A. He was. and he is a Democrat. 
 
 M. N. SAWYER. 
 
 Deposition of Cary G. Spence. 
 
 CARY G. STENCH, being duly sworn, deposeth and saith as follows: 
 
 Question. Are you a legal voter in South Mills Township? Answer. I am, and 
 have been for about thirty-six years. 
 
 Q. Were you at the polls, and did you vote at the election held at South Mills on 
 the 5th day of September, 1878, for a member to the Forty-sixth Congress of the 
 United States ,' A. I was at the polls and voted. 
 
 Q. About what hour of the day were the polls opened? A. My idea is that it was 
 as late as 10 o'clock. 
 
 Q. Do you know who were conducting the election when you voted ? A. I know 
 that Evan Overtoil and Kenneth R. Sawyer, and one other, whose name I do not re- 
 member, were conducting the election; the registrar was also present when I voted. 
 Kenneth R. Sawyer was called in while I was near the polls and took his seat as one 
 of the j ml _ 
 
 Q. Did you or did you not see said Sawyer qualified or sworu in as one of the in- 
 spectors of the polls? A. I did not see him sworn in. 
 
 Q. Were you where you could have seen him if he had been sworn in ? A. I was 
 
 E resent at the polls before said Sawyer took his seat as inspector, and saw him when 
 e took bis seal, and saw no one administer the oath to him.
 
 394 DIGEST OF ELECTION CASES. 
 
 Cross-examined by attorney for Joseph J. Martin, contestoe: 
 
 Q. How old are you ? A. I am fifty-seven years old. 
 
 Q. How many inspectors were conducting the election when you voted ? A. Three 
 besides the registrar. 
 
 Q. Do you know that Kenneth R. Sawyer was not duly sworn as an inspector? A. 
 I do not know it. 
 
 Q. About what time of the day did you vote ? A. I think it was about 10 o'clock. 
 
 Q. Had others voted before you ? A. Two or three. 
 
 ' Q. Do you know any reason why the polls were not opened sooner? A. Because 
 all of the inspectors were not present. 
 
 C. G. SPENCE. 
 
 Deposition of Wiley N. Gregory. 
 
 WILEY N. GREGORY, being duly sworn, deposeth and saith as follows : 
 
 Question. Were you a qualified voter at South Mills precinct on the r>th day of No- 
 vember, 1878 ? Answer. I was. 
 
 Q. Were you appointed one of the inspectors of the polls to hold said election, by 
 the board of magistrates of Camden County, for a member to the Forty-sixth Congress 
 of the United States from the first Congressional district of North Carolina? A. I 
 was, but did not serve. 
 
 Q. Do you know about what hour the polls were opened? A. The sun was at least 
 an hour high. 
 
 Q. Did you vote ; and, if so, who was conducting the election when you voted ? 
 A. I voted, and at that time those conducting the election were Evan Overtoil and 
 Kenneth R. Sawyer, who was placed there in my stead, and I am not certain whether 
 any one else was there or not, except the registrar. 
 
 Cross-examined by attorney for Joseph J. Martin, coutestee : 
 
 Q. Who were the other inspectors appointed with you to hold said election, and 
 what was their politics ? A. I think Joseph N. Spence and Evan Overtoil were ap- 
 pointed with me, but I am not certain. Myself and Joseph N. Spence, if appointed, 
 who I think was, but am not certain, were Democrats, and Evan Overtoil was a Re- 
 publican. 
 
 Q. Who was the registrar at said election, and what was his politics ? A. John E. 
 Spence was registrar, and he is a Democrat. 
 
 Q. Where were you and the registrar residing at that time ? A. In the village at 
 South Mills, where the election was held. 
 
 Q. Do you think the sun was more than an hour high ? A. I think it was at least 
 an hour high, but cannot be definite ; if anything, it might have been some later. 
 
 Q. Do you know of any reason why the polls were not opened earlier ? A. I do 
 not. 
 
 Q. How many inspectors were conducting the election when you voted * A. I atn 
 certain there were three. 
 
 Direct examination by contestant's attorney: 
 
 Q. Do you know how many election precincts there are in South Mills Township ? 
 A. There is only one, and that one is held in the village of South Mills. 
 
 Q. Do you know how many acting justices of the peace there were in and for South 
 Mills Township on the f th dny of November, 1878, and what were their names* A. 
 There were three ; Benjamin F. Spence, John C. Tatem, and Peter C. Pearce. 
 
 WILEY N. GREGORY. 
 
 Deposition of John E. Spence. 
 
 JOHN E. SPENCE, being duly sworn, deposeth and saith as follows: 
 
 Question. What is your age and occupation ? Answer. I am thirty years of age, 
 and am a merchant. 
 
 Q. Were you at the election precinct at South Mills, Camdeu County, North Caro- 
 lina, on the 5th day of November, 1878, when an election was held for a Representa? 
 tive in the Forty-sixth Congress of the United States for the first Congressional dis- 
 trict of North Carolina ; and, if so, in what character were .you there f A. I was, and 
 acted in the capacity of registrar. 
 
 Q. Do you know at what hour the polls were opened at said election ? A. It was 
 somewhere about 15 minutes after 9 o'clock. 
 
 Q. Do you know who was appointed judges or inspectors of the polls at said pre- 
 cinct by the board of justices for said county ; and, if so, who of them were present 
 and were qualified at the opening of said polls ? A. I was told by the sheriff that
 
 YEATES VS. MARTIN. 
 
 Joseph N. Spence, Wiley N. Gregory, Evan Overtoil, and Jaines H. Sawyer, were ap- 
 pointed inspectors to conduct said election. Of these, Joseph N. Spence and Evan 
 Overtoil were only present. 
 
 Q. Who qualified these inspectors ? A. M. N. Sawyer. 
 
 Q. Was any one appointed as judge or inspector to assist in conducting the elec- 
 tion? A. Yes; I appointed John T. Pritchard. 
 
 Q. Was the oath required to he administered to inspectors of the polls administered 
 to him hy you ? A. It was not. 
 
 Q. Did you appoint any one else as inspector during the day ? A. i did not. 
 
 Q. Were you, as registrar, together with those inspectors who were present at the 
 opening of the polls, sworn, as required by law, by any one authorized to administer 
 oaths ? A. I was not sworn at any time nor by any one as registrar. 
 
 Q. Were there four inspectors present through the day conducting the election T 
 A. There were not but three inspectors conducting the election during the day. 
 
 Q. After the polls were opened, was the voting suspended at any time during the 
 day ? A. Yes; the inspectors adjourned at 12 o'clock for about one hour, for dinner. 
 
 Q. What became of the box that contained the ballots during that time ? A. One 
 of the inspectors who received the ballots, to wit, Evan Overton, took the box con- 
 taining the ballots to a room about seventy-live yards distant from the polls, and 
 locked it in and took possession of the key. 
 
 Owing to the late hour of the day, and by consent of attorneys for plaintiff and de. 
 fendant, the taking of further testimony in this matter closed until 9 o'clock Friday 
 the 26th day of September, 1879. 
 
 Pursuant to adjournment, the commission reassembled this the 26th day of Sep- 
 tember, 1879, and the testimony of John E. Spence resumed. 
 
 Question. At what hour did the inspectors or judges again open the polls? An- 
 swer. About 1 o'clock p. m. 
 
 Q. Who carried the box containing the ballots back to the place of voting? A. 
 Evan Overton, in company with myself and Kenneth R. Sawyer. 
 
 Q. After reassembling who conducted the polls as inspectors? A. Evan Overton, 
 Joseph N. Spence, and Kenneth R. Sawyer. 
 
 Q. By whom was Kenneth R. Sawyer appointed as an inspector ? A. By no one ; 
 he took the place of John T. Pritchard. 
 
 Q. Was Kenneth R. Sawyer sworn in as an inspector ? A. Not of my knowledge he 
 was not. 
 
 Q. Did Kenneth R. Sawy-r continue to act as an inspector until the polls were 
 closed? A. My impression is That he did. 
 
 Q. At what hour of the day were these polls closed ? A. At sunset. 
 
 Q. Was the box opened and the votes counted out immediately upon the teruiina- 
 tin of the voting? A. It was. 
 
 Q. Did you complete the counting of the votes, and were the certificates of the re- 
 sult of the votes made out and signed on the f>th day of November, 1878 ? A. Yes. 
 
 Q. Who signed said certificates ? A. Myself, Joseph N. Spence, and Evan Overton 
 signed them ; I do not know whether any one else signed them or not. 
 
 Q. What then became of the certificates of said returns? A. They were placed in 
 the hands of Joseph N. Spence, whom we selected as one of the county canvassers. 
 
 Q. Whom do you mean when you say ire f A. Myself and those of the inspector* 
 who were present. 
 
 Q. Was the said Kenneth R. Sawyer present and did he aid in making the selection 
 of Joseph N. Spence as the bearer of said certificates and a member of the board of 
 county canvassers? A. He was present, and it is my impression that he sanctioned 
 the selection. 
 
 Cross-examined by attorney for Joseph J. Martin, contestee : 
 
 Q. What was the law under which this election was held in regard to the appoint- 
 ment of inspectors ? A. There should be four inspectors appointed, two of whom shall 
 be members of a different political party from the registrar. 
 
 Q. What provision docs the statute make in cases where any of the inspectors ap- 
 pointed fail to act ! A. The registrar is authorized to appoint others in their stead. 
 
 Q. What was the politics of the registrar for that election ? A. He was a Demo- 
 crat. 
 
 Q. Did any of the managers appointed to conduct said election reside at or near 
 the voting precincts? A. The registrar and Wiley N. Gregory, one of the appointed 
 inspectors, resided at the precinct. 
 
 Q. What was the polities of Wiley N. Gregory ? A. He was a Democrat. 
 
 Q. What reason, if any, can you assign why the polls were not opened earlier? A. 
 There were three reasons why they were not opened earlier: First, the inspectors 
 were not all present; second, there was no one present to qualify them : third, we 
 had no house in which to hold the election.
 
 396 DIGEST OF ELECTION CASES. 
 
 Q. Whose place was John T. Pritchard appointed to fill ? A. He was appointed to 
 fill one of the vacancies. 
 
 Q. Why did not you, as registrar, supply the other vacancy by appointment ? A. 
 I requested several to till the vacancy and they refused. 
 
 Q. About what is the usual vote cast at South Mills precinct? A. Between 450 
 and 500. 
 
 Q. Do you think that any who desired to vote at that election were deprived of 
 doing so by reason of a want of time or opportunity during which the polls were 
 opened ? A. I do not. 
 
 Q. Has it not always been customary here to adjourn the voting at noon for din- 
 ner T 
 
 (Question objected to by contestant's counsel.) 
 
 A. Sometimes they adjourn for dinner and sometimes they do not. 
 
 Q. What was the room used for in which the ballot-box was deposited during the 
 adjournment for dinner ? A. It was an unoccupied room in my residence. 
 
 Q. Do yon believe that the ballot-box was safe from interference during the ad- 
 journment for dinner ? A. I do. 
 
 (The above question objected to by contestant's counsel.) 
 
 JOHN E. SPENCE. 
 
 Deposition of John T. Pritchard. 
 
 JOHN T. PRITCHARD, being duly sworn, deposeth and saith as follows : 
 
 Question. What is your age I Answer. I am thirty-four years old. 
 
 Q. What is your occupation ? A. I am a farmer. 
 
 Q. Are you a resident of Caniden County, North Carolina ? A. I ana, and have been 
 all my life. 
 
 'Q. Were you present at an election held on the 5th day of November, 1878, for a 
 member to the Forty-sixth Congress of the United States from the first Congressional 
 district of North Carolina in South Mills township ? A. I was. 
 
 Q. Who, as inspectors or judges at said election, conducted the same? A. John E. 
 Spence as registrar, and Evan Overton and Joseph N. Spence. 
 
 Q. Were you, or were you not, appointed one of the inspectors of the polls on said 
 day ? A. I was not. I acted for a short time in registering a few names, but was 
 not sworn in by any one. 
 
 Q. During the short time that you acted, was -there any one else except those yon 
 have named above assisting as judge or inspector of the polls? A. There was not. 
 
 JNO. T. PRITCHARD. 
 
 Deposition of K. R. Sawyer. 
 
 KENNKTH R. SAWYER, being duly sworn, deposeth and saith as follows: 
 
 Question. What is your age and occupation ? Answer. I am thirty-six years old, 
 and am a farmer. 
 
 Q. Were you present at an election held at South Mills, on the 5th day of Novem- 
 ber, 1878, for a Representative to the Forty-sixth Congress of the United States for 
 the first Congressional district of North Carolina? A. I was. 
 
 Q. Who, as the judges or inspectors, conducted said election ? A. John E. Spenee, 
 registrar; Evan Overton and Joseph N. Speuce as inspectors. 
 
 Q. Did you, at any time, assist as inspector during the day, and, if so, under what 
 circumstances? A. I did; I assisted from about 10 o'clock until about a half an 
 hour by sun. 
 
 Q. Were you sworn in by any one as the law requires ? A. I was not. 
 
 Q. Do you, of your own knowledge, know whether any one acted in your place 
 after you ceased to act about a half an hour by sun ? A. I do not. 
 
 Q. Were you present at the counting of the votes T A. I was not. 
 
 Q. During the time you were assisting in conducting the polls were there any votes 
 challenged ; and, if so, did you aid in deciding the legality or illegality of the same ? 
 A. There were votes challenged, and I aided in the decision. 
 
 Q. Was Evan Overton, the receiver of the votes, under the influence of spirituous 
 liquors during the day of the election ? A. I think he was. 
 
 Q. Were the polls closed at any time while you were acting in the capacity of in- 
 spector; and, if so, for what length of time? A. They were cloted about one hour 
 for dinner. 
 
 Q. During that time what became of the box containing the ballots? A. It was 
 conveyed by Evan Overton, in company with myself and John E. Spence, to a room 
 about seventy-five yards distant from the house where the balloting was conducted, 
 and locked up by said Overtoil, who retained the key ; and after an interval of about 
 one hour it was taken back again by said Overton. and the voting resumed.
 
 YEATES VS. MARTIN. 397 
 
 Q. Do you know of any voter or voters who were restrained from voting as they 
 wished on the day of the election by reason of an undue and unlawful influence f A. 
 I do ; James Miller and Edmond Sawyer told me on the day after election that they 
 came to the polls to vote for Jesse J. Yeates, but were influenced to vote for Joseph J . 
 Martin by insinuating language used by persons opposed to the election of Jesse J. 
 Yeates. Of these, I think, thev named two, to wit, Calvin Jones and Miles Knight. 
 
 KENNETH R. SAWYER. 
 
 Pritehard. who was appointed inspector, it seems, served for a short 
 time, when Kenneth i{. Sawyer took his place, who, according to the 
 impression of the registrar, continued to act until the pollswere closed, 
 but, according to his own testimony, acted "from about 10 o'clock 
 until about half uu hour by sun," which is meant until half an hour 
 of sunset. Both Pritchard and Sawyer swear that they were not sworn. 
 
 So far as the failure to open the polls seasonably is concerned, the 
 fault, if there were one, was that of the Democratic registrar in not 
 making seasonable provision for tilling vacancies, and of the Demo- 
 cratic inspector who was present and declined to serve; but perhaps no 
 one was at fault. That contestant relies upon section 142 of McCrary 
 on Elections to the effect that if the deviations from the legal hours is 
 great, the presumption is that it has aJBected the result, and the burden 
 will be upon him who seeks to uphold the election to show affirmatively 
 that it has not; but if the deviation is slight, then the presumption is 
 that it has not affected the result. 
 
 When polls are closed before the hour prescribed by law, it may be 
 that voters, without any fault of their own, are excluded from voting, 
 because they have a right to expect that the polls will be kept open ac- 
 cording to law: but when polls are not opened at the hour required by 
 law, but are opened in season to give ample time to any voter to vote, 
 and the delay has arisen from the fact that all the election officers have 
 not attended, and some time is necessary to till these vacancies accord- 
 ing to law, and there has been no manifest abandonment of the attempt 
 to hold an election, it is the duty of a voter to wait until the polls are 
 opened. To hold otherwise, would invite a minority to bring about 
 a delay in opening the polls, in order to invalidate the election. 
 Such laws necessarily imply that some time must be taken on elec- 
 tion day to till such vacancies, and the voter has no right under either 
 the Constitution and laws of the United States or of the State to 
 deposit his ballot immediately on reaching the polling-place, and no 
 rights of his are violated by compelling him to wait until the polls are 
 opened in the lawful manner, provided there is time enough left for all 
 to vote who desire to vote. >io case has been shown to the committee 
 in which a failure to open the polls at as early an hour as the law re- 
 quires has been held to affect the election at such polling-place. The 
 cases all relate to closing the polls too soon. This election at South 
 Mills ought not to be declared void on account of the delay in opening 
 the polls. The only direct injury proved by the delay in opening the 
 polls is : John ('. Linton, pages 30, 31, testifies that he waited for the open- 
 ing of the polls ; that his business called him away, and he left ; he 
 would have voted for Yeates. He had heard of one other person who 
 would have voted for Yeates if the polls had been seasonably opened. 
 The last is hearsay which we reject. We reject Linton because In- 
 should have waited it' lit- desired to vote. John E. Spence, Democratic 
 registrar, says, page '>! : 
 
 Q. Do you think that any who desired to vote at that .-lection were deprived of 
 doing so by reason of a want of time or opportunity during which the polls were 
 opened f A. I do not.
 
 398 DIGEST OF ELECTION CASES. 
 
 The contestant contends that the election was not held by the proper 
 officers and that they were not sworn, and that these defects invalidate 
 the election at this precinct. The coutestee objects, that this is not open 
 to the contestant under his notice and section 105 of the Revised Stat- 
 utes, which requires " that the notice shall specify particularly the 
 grounds upon which the contestant relies in the contest," and section 
 121, "that the testimony to be taken by either party to the contest shall 
 be confined to the proof or disproof of the facts alleged or denied in the 
 notice and answer," &c. 
 
 The specifications in the notice of contest in regard to South Mills is 
 this : 
 
 Specification I. Thatthepolls were not opened at South Millspiecinct,in the county 
 of Camden, in said district, on said election day until between the hours of 9 o'clock 
 a. in. and 1'2 o'clock in., so that a large number of persons desiring to vote at said elec- 
 tion were prevented so doing ; that a large number of votes were counted at said pre- 
 cinct and returned at said precinct on said day of election in excess of the number 
 Known to have voted by the poll and register list kept by the judges of election, to 
 wit, thirty persons; that twenty persons voted for you at said precinct on said day of 
 election under twenty-one years of age, and twenty persons voted for you non-resi- 
 dents. I object to the votes of South Mjlls precinct aforesaid being counted. Yon are 
 reputed to have a majority of over sixty votes at said precinct. 
 
 There is also a general specification at the end of the notice, as fol- 
 lows: 
 
 Specification 13. That there were gross irregularities, frauds, and violence, and 
 intimidation of voters at each and every precinct in each and every county in .said 
 district on the said day of election, whereby you received more votes than you were 
 entitled to, to wit, one thousand, and I lostone thousand votes in said election. 
 
 So this contestant verily believes and avers that by reason of said irregularities, 
 illegalities, frauds, violence, force, threats, and intimidations, and the improper count- 
 ing and canvassing by the various judges of election and couuty canvassers in the 
 various counties in said district, and the throwing out and not counting of votesgiven 
 at said election for me, the election was changed; and if it were not for the irregu- 
 larities, illegalities, Irands, violence, force, threats, and intimidations aud improper 
 counting by the various judges of election aud county canvassers in the various coun- 
 ties in said district, and the throwing out and not counting said votes in said district 
 given forme, that I would be elected to the Forty-sixth Congress of the United States 
 for the first district of North Carolina. 
 
 We think it too plain for argument that neither of these specifications 
 sets out particularly that the board of election officers at South Mills 
 were not properly constituted and qualified to act. This ground of con- 
 test is not, therefore, open to the contestant, and must be rejected. 
 
 If, however, any members of the House are disposed to consider this 
 claim on the evidence presented, we have to say that the registrar aud 
 two inspectors were the regularly appointed registrar and inspectors. 
 These inspectors were sworn by the sheriff'. No authority to the sheriff' 
 to administer oaths has been shown us. A third inspector was ap- 
 pointed by the registrar, who was probably not sworn by anybody, who 
 acted for a short time, and whose place was taken by Mr. Sawyer, who 
 acted as inspector without formal appointment, but, it is manifest we 
 think, with the assent of the registrar. The remaining inspector was 
 not appointed, so far as appears, because the registrar could not find 
 any one who would serve. There is no evidence that miy of these offi- 
 cers acted unfairly or improperly, except in the particulars hereinafter 
 considered, of adjourning for dinner; of locking up the ballot-box while 
 at dinner; and that Overtou was under the influence of liquor. The 
 officers acting must betaken to be de facto officers. The omission to 
 take the oath will not vitiate the election. (Section 79, McCrary on 
 Elections, aud cases cited.) The principle is well established that tin-
 
 YEATES VS. MARTIN. 399 
 
 acts of public officers being in by color of an election or appointment, 
 are valid so far as the public is concerned. 
 
 By section 9, chapter 275, Acts of Xorth Carolina, 1877, already quoted, 
 the judges, with the registrar, " shall open the polls and superintend the 
 same until the close of the election." 
 
 SKC. '^0. When the election shall be finished, the registrars and judges of election, 
 in presence of such of the electors as may choose to attend, shall open the boxes and 
 count the ballots, &e. 
 
 The registrar and judges of election constitute a board for the pur- 
 poses of opening the polls, superintending the election until the close of 
 it, and for counting the ballots. And on general principles a majority 
 of this board could act upon the matters on which they are authorized 
 to act together, and the registrar and two judges are a majority of this 
 board. Besides, if the third inspector is held to have acted under the 
 authority of the registrar, this, so far as the rights of these persons are 
 concerned, should be taken as an appointment, and three judges are a 
 majority of four, even if the four judges be taken to be a board separate 
 from the registrar. 
 
 Chapter 10S. Battle's Revised Laws of North Carolina, section 2, 
 clause 2, is : 
 
 All words purporting to give A joint authority to three or more public officers or 
 other persons shall be construed as giving such authority to a majority of such offi- 
 cers or other persons, unless it .-hall be otherwise expressly declared in the law giving 
 the authority. 
 
 The returned vote at South Mills cannot, therefore, be rejected for 
 the reasons that the election officers were not properly sworn, or because 
 there were not four judges of election in attendance. 
 
 The next objection is that Overtoil, one of the judges, was drunk 
 while in the performance of his duties. This is not an issue raised by 
 the notice of contest, and must be rejected. The evidence of two wit- 
 nesses is that Overtoil was under the influence of spirituous liquors 
 during the day. and this is all. There is no evidence that he was unable 
 to attend to his duties, or that he did not properly attend to them, or 
 that he was drunk, except this, of Barrington, page 33: 
 
 Q. Was the receiver of the ballots so much nnder the influence of liquor that he 
 was unable to attend to the discharge of his duties at the polls ? A. He staid at the 
 polls, but I think he was too drunk to be tit for business that day. 
 
 Q.' Do you know that he did not discharge the duties of his office that day ? A. I 
 do not. 
 
 Q. Was he in the discharge of his proper duties at the times you were around the 
 polls during the day ? A. He was. 
 
 The reputation of Barrington for veracity will be noticed hereafter. 
 
 This does not invalidate the election. (McOrary, Section 124.) 
 
 The next objection is that there was an adjournment for dinner of 
 about an hour, at 12 o'clock. This is not an issue particularly speci- 
 fied in the notice, and must be rejected. The testimony is that some- 
 times the election officers adjourn for dinner and sometimes not, and at 
 this election they did adjourn at about 12 o'clock for one hour. There 
 was ample time for every one to vote. This does not vitiate the election. 
 (Fry r*. Booth, 19 Ohio St. Reports, 25.) 
 
 When they adjourned for dinner, one of the inspectors took the bal- 
 lot-box about seventy-five yards, to a room in the house of John E. 
 Spence, the registrar, locked it in the room, and took the key, and at 
 the end of the adjournment got the ballot-box and carried it to the 
 place of voting. This is not an issue raised by the notice of contest, 
 and must be rejected. The evidence on this point is as follows : John 
 E. Speuce, Democrat, registrar, pages 36, 37 :
 
 400 DIGEST OF ELECTION CASES. 
 
 Q. What became of the box that contained the ballots during that time ? A. Quo 
 of the inspectors who received the ballots, to wit, Evan Overtoil, took the box con- 
 taining the ballots to a room about seventy-five yards distant from the polls, and 
 locked it in and took possession of the key. 
 
 Owing to the late hour of the day, and by consent of attorneys for plaintiff and 
 defendant, the taking of further testimony in this matter closed' until 9 o'clock Fri- 
 day, the 26th day of September, 1879. 
 
 Pursuant to adjournment, the commission reassembled this the 26th day of Septem- 
 ber, 1879, and the testimony of John E. Spence resumed, 
 
 Question. At what hour did the inspectors or judges again open the polls ? Answer. 
 About 1 o'clock p. m. 
 
 Q. Who carried the box containing the ballots back to the place of voting ? A. 
 Evan Overton, in company with myself and Kenneth R. Sawyer. 
 
 Q. Has it not always been customary here to adjourn the voting at noon for dinner T 
 
 (Question objected to by contestant's counsel.) 
 
 A. Sometimes they adjourn for dinner and sometimes they do not. 
 
 Q. What was the room used for in which the ballot-box was deposited during the 
 Adjournment for dinner ? A. It was an unoccupied room in my residence. 
 
 Q. Do you believe that the ballot-box was safe from interference during the ad- 
 journment for dinner? A. I do. 
 
 (The above question objected to by contestant's counsel.) 
 
 JOHN E. SPENCE. 
 
 There is no evidence or suggestion that the ballot-box was tampered 
 with. This does not vitiate the election. 
 
 The next contention in argument is " that fraud, violence, intimida- 
 tion, and bribery were resorted to by the partisan friends of the contes- 
 tee to force a majority " for him. This is not properly specified in the 
 notice and must be rejected. The evidence of this is very indefinite. 
 No voter testifies that he was prevented from voting by fraud, violence, 
 or intimidation. The two persons, and the only two persons named by 
 Barriugton as deterred from voting by violence or intimidation, or in- 
 duced to vote by fraud or bribery, are James Miller and Edmund Saw- 
 yer ; both contradict it (page 50). The testimony of Barrington is found 
 on pages 31-33, 10-12 ; that of Abbott on pages 12, 13, 38, 39, 40. Bar- 
 rington, when asked directly, " Was there any violence used to influence 
 the election ? " answered, u There was no physical violence. 7 ' The tes- 
 timony of John E. Spence, registrar, pages 45,46; of William S. Jones, 
 farmer, page 47 ; of Calvin Jones, farmer, pages 48, 49 ; A. P. Cherry, 
 deputy collector of internal revenue, page 51, is all to the effect that 
 there was no intimidation or violence. Cherry, page 52, Jones, 
 page 48, testify that Barriugton's reputation is bad. H. J. Overtoil, 
 page 82 ; Whitehurst, page 86 ; B. J. Overton. page 86 ; Halstead, 
 page 87 ; J. L. N. Sawyer, page 90, testify that Barriugton's reputa- 
 tion is good good so tar as they know. Barriugtou was a mulatto, 
 a school-teacher, a partisan of Respass. Barriugtou himself voted 
 for Respass (page 48). No person is named of whom it is proved that 
 he voted under the inducement of fear, fraud, or bribery, or was pre- 
 vented from voting by reason of violence or intimidation. The contest- 
 ant does not claim that any elector was prevented from voting tor him 
 by violence or intimidation, or was induced not to vote for him by fraud 
 or violence. This contest is between the partisans of Martin and the 
 partisans of Respass, who was called an Independent Republican candi- 
 date. We find the whole charge of fraud, intimidation, violence, and 
 briber}- unfounded in fact. 
 
 VANDEMERE PRECINCT. 
 
 The specification in the notice of contest is as follows : 
 
 Specification 11. That at the precinct of Vandemere, in Pauilico County, the polls
 
 YEATES VS. MARTIN. 401 
 
 were not opened until between the hours of 9 o'clock a. m. and 12 o'clock in. on said 
 day of election, whereby many persons who desired to vote for me, to wit, sixty or 
 more, were prevented from so doing. That at said precinct of Vandemere the persona 
 who acted as judges of election and conducted said election were not lawfully ap- 
 pointed, but were mere usurpers. That no proper certificate of said election was re- 
 turned to the county canvassing-board : and that twenty or more votes were counted 
 and returned to the county canvassiug-board than were voted, as shown by the poll 
 and register list kept by the said judges of election. That at said precinct you are 
 reputed to have received a majority of forty-one votes or more. I object to the votes 
 given at Vandemere precinct, in Pamlico County, on said day of election being counted. 
 
 The returned vote at this precinct is, Yeates, 31 ; Martin 71 ; major- 
 ity for Martin. 40 (page 2). 
 
 The testimony of H. C. Holtou. tlie registrar, aud a Democrat, is as 
 follows : 
 
 Deposition of H. />'. Holton. 
 
 H. C. HOLTON personally appeared before me, James H. Miller, clerk of the supe- 
 rior court of Pamlico County. State of North Carolina, commissioner to take deposi- 
 tions in the case of Jesse J. Yeates against Joseph J. Martin, and, after being duly 
 sworn, deposeth and says: 
 
 That he lives at Vandemere: age. twenty-eight yean. Vandemere is a voting place 
 in Pamlico County. Was registrar at tlie election held at Vandemere in November, 
 1878 ; that the election was held for Congressman ; don't remember the exact day of 
 election, but it was in November, 1878. 
 
 Question. Do you know whether this election was held on the regular election day 
 for Congressman in November, 1878 ? Answer. It was the day 
 
 (Question objected to by defendant's counsel; objection overruled.) 
 
 Q. Was this election day in accordance with the orders in your appointment from 
 the board of county commissioners of Pamlico County as registrar f A. It was. 
 
 Q. In what Congressional district is Vandemere precinct, and what were the names 
 of the candidates voted for at this election ? A. I don't recollect the number of the 
 Congressional district : the persons voted for were Jesse J. Yeates, Joseph J. Martin, 
 and John B. Respass. 
 
 Q. At what time were the polls open at this election? A. I do not know exactly, 
 but about 11 o'clock a. in. 
 
 <V- What was the regular hour for opening the polls according to law ? 
 
 (Question objected to; objection overruled. ) 
 
 A. Seven o'clock a. in. 
 
 Q. What were the causes of the polls not being open at an earlier hour? A. The 
 judges appointed were not there. 
 
 Q. Do you know this of your own knowledge ? A. I kuow that they were not 
 there. 
 
 Q. Did you endeavor to appoint inspectors according to the powers delegated to 
 yon as registrar ? A. I did. 
 
 Q. Did you succeed in getting men from both parties at an earlier hour than 11 
 o'clock to serve as inspectors f A. I did not. I got enough men from both parties to 
 .serve as inspectors at or near 11 o'clock. 
 
 Q. Did the laws require that you should appoint two inspectors from each of the 
 political parties? 
 
 (Question objected to ; objection overruled.) 
 
 A. The law does so require. 
 
 Q. Did you appoint any of the inspectors from either party before the hour of 11 ; 
 .and, if so, from what party ? A. I did appoint two of the inspectors some time before 
 11 o'clock ; don't remember the exact time ; they were both from the Democratic party. 
 
 Q. Did you appoint any from the Republican party before this time ; if so, did they 
 refuse to serve ? A. I did appoint one ; he refused to serve. 
 
 Q. Was not the polls prevented from being opened at an earlier hour on account of 
 Republicans refusing to serve as inspectors ? A. That was the reason that the polls 
 were not open sooner. 
 
 Q. Do you kuow whether any Democrats left the polls without voting before the 
 polls were opened? A. I do know that some Democrats left before the polls were 
 opened without voting. 
 
 Q. Did any one object to your opening the polls at 11 o'clock on account of 
 .some Democrats having left wir bout voting, and for reasons that a fair election could 
 not be had? A. There was such objection. 
 
 Q. Did any Democrats leave the precinct without voting and before you had ap- 
 pointed the Democratic inspectors ? A. The Demoewts had not left. 
 
 H. Mis. 58 26
 
 402 DIGEST OF ELECTION CASES. 
 
 Q. Did yon know about the difference between the number of votes registered at 
 that precinct and the number of votes cast at that election ? If not the exact num- 
 ber, about what was the number that failed to vote? A. Abont sixty. 
 
 Q. "What do you mean by sixty ? A. I mean that sixty is the difference between 
 the voters registered and the votes cast. 
 
 Q. Did the Republican party poll about its nsnal vote at that election at that pre- 
 cinct t A. It did. 
 
 Q. Was almost the entire falling off "of voting at this precinct on the part of the 
 Democratic party ? A. It was. 
 
 Cross-examined by defendant : 
 
 Q. What hour did yon go to the place where the polls were to be opened T A. Aboi; ^ 
 7 o'clock. 
 
 Q. Who did you find there? A. I do not remember at present. 
 
 Q. How many persons were present ? A. Five or six. 
 
 Q. How long did you wait before yon took steps to supply the place of the absent 
 inspectors ? A. About one hour. 
 
 Q. How many Republicans did yon apply to to act as inspector T A. I only applied 
 to one, that I remember. 
 
 Q. Did he refuse f A. He did. 
 
 Q. Did he assign any reason for his refusal T A. The only reason that he assigned 
 was that he did not care about it, and thought that I could get somebody that would 
 do better ; he could not read and write. 
 
 Q. Was this person a white man or a colored man? A. He was a colored man. 
 
 Q. Did the persons who left the precinct before the polls were opened know that 
 steps were being taken to open the polls? A. They did. 
 
 Q. How many came and left before the polls were opened ? A. I suppose about ten 
 or fifteen. 
 
 Q. Were they all persons who voted the Democratic ticket? A. I think they were. 
 
 Q. Did you then or previously hear any expression among the members of the Dem- 
 ocratic party voting at that precinct of dissatisfaction with the nominee of that party 
 after he was nominated ? 
 
 (The plaintiff's counsel objects on the ground that witness cannot state general 
 rumors, but can only state what voters at this precinct said on the day of the election 
 to him, the witness. Objection overruled.) 
 
 A. I did not hear any objection then or at any other time. 
 
 Q. Who made objection to your opening the' polls at 11 o'clock? A. I do not re- 
 member at this time. 
 
 Q. How many so objected ? A. I think two or three. 
 
 Q. How many registered voters were there in Vaudemere precinct at that elec- 
 tion? A. I do not remember, but about one hundred and sixty, I think. 
 
 Q. Was there a general turnout of the Democratic party at that election? A. I 
 don't think there was a general turnout. 
 
 Q. What kind of weather was there on that election day ? A. I think it was fair 
 weather. 
 
 Q. What was the condition of the roads ? A. Pretty good. 
 
 Q. Did you, on discovering that parties intended leaving without voting, remon- 
 strate with them ? A. I think I did. 
 
 Q. What did they reply ? A. I do not remember. 
 
 Q. Did any Republicans leave without voting? A. I don't think they did. 
 
 Q. At what hour did the polls close that day T A. The polls closed at sunset. 
 
 Q. Did every person at the polls have a fair and free opportunity oi voting after 
 the polls were opened ? A. They did. 
 
 Q. Was there any crowding, disturbing, or intimidation used to prevent voters 
 from voting ? A. There was none. 
 
 Q. Did any persons apply aft*r the polls were closed to be allowed to vote ? A. 
 No. 
 
 Redirect examination by plaintiff's counsel: 
 
 Q. How long did these Democrats remain at the polls before 11 o'clock, and after 
 they found out that steps were being taken to appoint inspectors, and if the witness 
 did not say to them that he thought it doubtful and was afraid that he would not be 
 able to procure Republican inspectors for this election? A. I don't know how long 
 they remained. I think some of them were there an hour or two after they knew 
 steps were being taken to open the poll ; some staid until near the time the polls were 
 opened. I do not remember anything that I said to any one concerning the opening 
 the polls. 1 think it was very likely that I did say something in regard to the polbj 
 not being opened that day. 
 
 Q. If the reason why on this day of election there was not a general turnout of the 
 Democratic party was* not because it was rumored that there was being no election
 
 YEATES VS. MARTIN. 403 
 
 held at that precinct ? A. I think that was the reason why there was riot a general 
 turnout of the Democratic party. 
 
 Q. If, before these Democrats left the polls, you had asked other Republicans to 
 be inspectors besides this colored man, and if these did not refuse? A. I do not re- 
 member. 
 
 Q. What ticket do yoti generally vote? A. The Democratic. 
 
 Q. What political party do yon generally vote with? A. The Democratic. 
 
 H. C. HOLTON. 
 
 The deposition of F. P. Gatlin, clerk on tbe day of election, is as fol- 
 lows: 
 
 Deposition of F. P. Gatlin. 
 
 F. P. GATLIX personally appeared before me, J. H. Miller, clerk superior court of 
 Pamlico County, North Carolina, and commissioner to take depositions in the case 
 of Jesse J. Yeates against Joseph J. Martin, being duly sworn, deposeth and says: 
 
 I am a resident of Pamlico County, North Carolina ; age, thirty-three years, aud was 
 clerking at Vaudemere, N. C., the 5th day of November, 187d, at the store of John R. 
 McCotter. 1 was clerk there on the day of election for Congressman, Jesse J. Ycates, 
 Joseph J. Martin, and John B. Respass being candidates. The polls were held at John 
 B. McCotter's store. The polls were opened on that day at 11^ a. m. ; this I knew by 
 looking at my watch. I wished to know. 
 
 (Motion hen- made by defendant's counsel that the witnesses for plaintiff, except 
 the one on the stand, leave the room. Objected to by plaintiff's counsel. Motion 
 overruled. ) 
 
 Question. Why did yon wish to know? Auswer. I wished to know because I 
 thought it illegal. 
 
 Q. Do you know how many persons left the precinct before the election com- 
 menced? A. About six, of my belief ; and these were Democrats. Others might have 
 left and I not have known it. 
 
 Q. Was this a full election? A. It was not. 
 
 <^. Was the Republican vote full at that election? A. I think it was. 
 
 Q. \Vas tin- Democratic vote at that election full? A. It was not. 
 
 Q. Was there any general rumor why the voting w:is not fall at this election f 
 
 (Defendant's counsel objects; objection overruled.) 
 
 A. There was at this precinct. The reason was just this, that the voters, so many 
 of them leaving before the polls being opened, that we, a few of us at Vaudemere, 
 thought that this was the reason that the Democrats did not turn out. 
 
 Q. Did you wer hear any voter of the Vandemere precinct state that the reason 
 why he did not vote at this election was because the understanding in the country 
 wae that there was no election being held there on that day, and was this voter a 
 Democrat 
 
 (Defendant's eo, nisei objects, unless the answer be confined to expressions before or 
 on the day of election : objection overruled.) 
 
 A. I think I did hear one man say he should have come but he did not think there 
 would be any election ; and this man was a Democrat. 
 
 Q. Did you or do you know of any one trying to get, Republicans to act as inspect- 
 ors, that the polls might be opened at an earlier hour than they were ; aud, if so, do 
 you know the reasons they gave for refusing to act? A. I did not try, but Mr. Holton 
 did. We wanted to know if any Republicans were there, and none would acknowl- 
 edge that they were Republicans 
 
 Q. Did any of those parties afterwards vote; and, if so, what ticket did they votef 
 A. They did vote. I am not positive what ticket they voted, but they were Repub- 
 licans. 
 
 O. Did not Mr. Holton, the registrar, make a public proclamation or ask publicly, 
 if there was any Republicans present, if they would not act as inspectors, before il 
 o'clock a. in. ,' and, if so. state if when the inquiry was made there was not Repub- 
 licans present. A. He did. but they would not acknowledge they were Republicans, 
 but they were Republicans. 
 
 Q. How long have you beeu a resident of Vandemere precinct, and do yon know 
 how the precinct stood in regard to parties at this election ; whether it was a Demo- 
 crat or Republican precinct ? A. I have been there seven years; it has heretofore, up 
 to the last election, gone Democratic., 
 
 Q. Are you generally acquainted with the politics of the voters of this precinct ; and 
 if so, what was its politics at the time of the election in November, 1878, according to 
 your best knowledge and information ? A. I was. up to the election of 1878, acquainted 
 with the politics of the precinct, and to the best of my knowledge it was Democratic. 
 In 187."- I think it would be a dost- vote.
 
 404 DIGEST OF ELECTION CASES. 
 
 Q. If at and from the time of the nomination of Mr. Martin by the Republican party 
 if there was not some dissatisfaction in the Republican party at that precinct against 
 Mr. Martin ? A. I do not know. 
 
 Q. Was not John B. Respass a candidate for Congress at this election and an Inde- 
 pendent Republican, and did he receive any votes at this precinct? A. He, Respass, 
 was an Independent Republican candidate. I think received a vote or votes. 
 
 Q. Was not the feeling of the Democratic party of that precinct strongly in favor 
 of Mr. Yeates? A. I think it was ; I am a Democratic voter at that precinct. 
 
 FRANCIS P. GATLIN. 
 
 Holtou's (the registrar) testimony is that he got enough men from 
 both parties to serve as inspectors at or near 11 o'clock. 
 
 The polls were opened at 11| o'clock (Gatlin). 
 
 The other depositions in this precinct are, Caldwell, page 19 ; McCot- 
 ter, page 21 ; Eiggs, pages 22, 23 ; Patrick, page 23 ; Muse, page 23 ; 
 Riggs, page 24 ; Jones, page 24 ; John C. Muse, page 25 ; James Muse, 
 page 25 ; Bland, page 25. 
 
 It is evident that the reason of the delay in opening the polls was the 
 absence of some of the judges of election, and that the registrar endeav- 
 ored to appoint judges, but did not succeed in making the appointments 
 until about 11 o'clock ; that the intention to have an election was never 
 abandoned ; that the persons who left the precinct before the polls 
 were opened knew that steps were being taken to open the polls, and 
 that the registrar thinks he remonstrated with the persons who intended 
 to leave without voting, and says that every person at the polls had a 
 fair and free opportunity of voting after the polls were opened, and that 
 there was no crowding, disturbance, or intimidation, and no person of- 
 fered to vote after the polls were closed. 
 
 Under the statutes of North Carolina, which provide for filling vacan- 
 cies, as has been said, some delay is inevitable, and when the registrar 
 is present and is endeavoring to fill the vacancies it is the duty of the 
 voter to wait, and if he leaves before there is a formal announcement by 
 the registrar that there will be no election held, or before the holding 
 of an election has been manifestly abandoned, he leaves voluntarily, and 
 his vote cannot be counted. 
 
 If it becomes important to determine how many persons left before 
 the polls were opened, reference is made to the following testimony : 
 Holton, the registrar, says: "I suppose above ten or fifteen;" and he 
 thinks they were all persons who voted the Democratic ticket. Gatlin, 
 the clerk, says, "About six, in my belief; and these were Democrats. 
 Others might have left and I not have known it." McCotter says " five." 
 The witnesses who swear that they left, or did not go to the polls, under 
 a belief that no election would be held, and that they would have voted 
 for Yeates, are Jesse Eiggs, page 23; Patrick, page 23; John W. Muse, 
 page 23; James Kiggs, page 24 ; Joshua Jones, page 24; Seth Muse, 
 page 25 ; John C. Muse, page 25 ; Joshua Bland, page 26 eight in all. 
 In any view, this is all the injury that we find has been done to Mr. 
 Yeates by the delay in the opening of the polls. 
 
 The charge of conspiracy and fraud on the part of the Republicans to 
 prevent the opening of the polls is not sustained by the evidence. None 
 of the regular inspectors were present at the opening of the polls, and 
 only five or six persons. The registrar appointed two Democratic in- 
 spectors, who accepted, and one Republican, a colored man, who declined 
 because he could not read or write, and this is the only person he applied 
 to that he can remember until he made the Republican appointments. 
 Gatlin, the Democratic clerk, says there were Republicans present, but 
 they would not acknowledge they were Republicans ; but Caldwell, a 
 Democrat and poll-holder, says, pages 20, 21. that the registrar tried one
 
 YEATES VS. MARTIN. 405 
 
 Republican, a colored man, who assigned as a reason for not acting that 
 he thought, the registrar could do better, as he could not read and write, 
 and that at 10.30 o'clock there were perhaps fifteen persons assembled, 
 none of them Republicans, so far as he knew. This was a small voting 
 precinct ; the voters assembled slowly, and the delay in opening the 
 polls was, under the circumstances, natural enough. 
 
 HAMILTON PRECINCT. 
 
 At this precinct the votes returned are 161 for Yeates and 225 for 
 Martin. 
 
 The contestant contends that the vote of Hamilton precinct should 
 not be counted on account of the conduct of contestee "discharging the 
 duties of registrar, checking off the names of persons who presented 
 themselves to vote, and doing other and like duties of that office." The 
 other objections found in this notice of contest in regard to Hamilton 
 precinct were abandoned at the argument. 
 
 All the evidence on this subject is as follows : 
 
 Deposition of Everitt (page 42). 
 
 Jr.-n > EVERITT, being duly sworn, says, in response to the following question in 
 writing: 
 
 Question. State whether you were present at the election in Hamilton, in Martin 
 County, North Carolina, on the 5th day of November, 1878, at which election Jesse J. 
 Yeates and Joseph J. Martin were candidates for a seat in the present Congress of the 
 United States, and what acts, if any, the said Martin did in reference to the conduct- 
 ing and managing said election. State fully his acts and conduct at said election. 
 Answer. I was there a part of the time, and Mr. Martin was also present and had 
 charge of the registration books, and had charge when I left, which was in a few 
 minutes. 
 
 Cross-examined : 
 
 Q. What Mr. Martin did, was it done in the presence of the poll-holders T A. It 
 was. 
 Q. Did Mr. Martin act corruptly T A. Not that 1 know of. 
 
 JUSTUS EVERITT. 
 
 Deposition of J. G. Carraway. 
 
 JONATHAN G. CARRAWAY, being duly sworn, says, in response to the following 
 question in writing : 
 
 Question. State whether you were present at the election held in Hamilton, in Mar- 
 tin County, North Carolina", on the 5th of November, 1878, at which election Jesse J. 
 Yeates and Joseph'J. Martin were candidates for a seat in the present Congress of the 
 United States, and" what acts, if any, the said Martin did in reference to the conduct- 
 ing or managing said election. State fully his acts and conduct at said election. 
 Answer. I was present on the day of election spoken of; Mr. Martin was present 
 around the polls, and I saw him check off some of the registered names of voters as 
 they voted ; and my impression is that at one time he came around the counter where 
 the judges of election were, and while on the side of the counter where the judges of 
 election were I think he did not check off any names while there; and when he 
 checked off names he was on the side of the counter where the people came up to vote. 
 Further this deponent saith not. 
 
 Cross-examined : 
 
 Q. How many names did Mr. Martin check off the poll-book f A. I can't say posi- 
 tively, but I think he checked off some forty or fifty. 
 
 Q. 'Was the checking off done iu the presence of the poll-holders T A. I thi nk it 
 was, or a majority of them. 
 
 Q. Did Mr. Martin act corruptly iu checking off the names f A. Not that I kn ow of, 
 
 Q. Who received the votes? A. W. K. Gladson. 
 
 Q. Was any man's name deposited iu the box before his name was checked off of the 
 poll-book f A. None that I know of.
 
 406 DIGEST OF ELECTION CASES. 
 
 Q. Were you one of the. judges at said election? A. I was acting as registrar for 
 Mr. Justus Everitt, who was the legally appointed registrar. 
 
 Q. Was the election conducted fairly ? A. So far as I know. 
 
 (The counsel for the contestant objects to the above upon the ground that it is going 
 into new matter.) 
 
 Q. What party do you belong to? A. To the National Democratic party. 
 
 Q. Who did yon vote for? A. I voted for Jesse J. Yeates. 
 
 (The counsel for the contestant objects to the two above questions upon the grounds 
 of the first objection, as being immaterial or irrelevant.) 
 
 Q. How was the party divided of those votes that was checked off by Mr. Martin T 
 A. I don't know. 
 
 J. G. CARRAWAY. 
 
 The statute of North Carolina, section 5, chapter 275, Acts of 1877, 
 is 
 
 * * * If any registrar shall refuse or neglect to perform his duties the justices of 
 the peace for the township may remove him and appoint another in his place. And 
 no person who is a candidate for any office shall be a registrar, or judge, or inspector 
 of an election. 
 
 It is not contended that Mr. Martin was appointed either registrar, or 
 judge, or inspector of elections. So far as appears, these offices were all 
 filled by other persons, who were present and performing their duties. 
 Mr. Martin acted in the presence of the poll-holders. Mr. Carra way was 
 the acting registrar. Mr. Martin checked 06 some names on the regis- 
 tration book when on the side of the counter where the people came to 
 vote, and at one time came around the counter where the judges of elec- 
 tion were, but did not check off' any names while there. Then it seems 
 that he did not act corruptly, and that the election was fairly conducted, 
 and that he took no part in receiving votes or keeping the poll book, and 
 there is no evidence that any person was permitted to vote who was not 
 entitled to vote, or, being entitled, was prevented from voting, or that 
 any votes were improperly received or counted, or that Mr. Mai tin's con- 
 duct had any effect whatever upon the election. This conduct of Mr. 
 Martin may have been an act of indiscretion, but, in the absence of any 
 evidence that it produced any effect upon the election, we do not think 
 that any weight should be attached to it. 
 
 PROVIDENCE TOWNSHIP. 
 
 The returns from Providence Township were rejected by the county 
 canvassing- board of Pasquotauk County for the reason that the returns 
 were delivered to the board by the registrar and not by one of the judges 
 of election. The returns showed that Mr. Yeates had received thirty- 
 nine (39) more votes in this precinct than Mr. Martin (page 14.) The con- 
 testee admits that this objection is not sufficient to justify the committee 
 in rejecting this return, but insists that, if counted, the returns from 
 Salem precinct should also be counted. 
 
 Section 21, chapter 275, Acts of North Carolina of 1S77, is : 
 
 The judges of election in each township, ward, or precinct, shall appoint one of their 
 number to attend the meeting of the board of county canvassers as a member thereof, 
 and shall deliver t<> the member who shall have been so appointed the original returns, 
 statement of the result of the election in such township, ward, or precinct; and it 
 shall be the duty of the members o{' the several township, ward, or precinct boards 
 of election to attend the meeting of the board of county canvassers for such election 
 in the county in which they shall have been appointed as members thereof. 
 
 And by section 2."> a majority of the members shall be sufficient to 
 constitute such board. While for certain purposes the registrar and 
 judges of election act Together as a board of election, yet there are cer- 
 tain duties which by statute pertain to the registrar alone, and certain
 
 YEATES VS MARTIN. 407 
 
 others which aloue can be performed by the judges of election. If the 
 registrar refuses or neglects to perform his duties, the justices of the 
 peace may remove him and appoint another in his place; but if the 
 judges of election fail to attend, the registrar shall appoint some dis- 
 creet person to act as such. We think, therefore, that section 21 re- 
 quires the judges of election to appoint one of their own number to at- 
 tend the said meeting of the board of county canvassers and deliver 
 the returns ; that the registrar is excluded, and that a'registrar could 
 not act as one of the board of county canvassers, and is not the person 
 designated by law to deliver the original returns to such board. 
 
 But if the returns be delivered by any person, and it be shown to be 
 the true return, we know no reason why it should not be counted, and 
 it is not disputed that the returns from Providence Township truly 
 .showed that Mr. Yeates had 39 votes over Mr. Martin. We think these 
 votes should be counted for Mr. Yeates. 
 
 This is the case made by the contestant. 
 
 The contestee in his counter allegations contends that votes in addi- 
 tion to those returned for him should be counted for him in Salem pre- 
 cinct, in Merry Hill precinct, and in Goose Nest precinct. 
 
 SALEM PEECINCT. 
 
 The votes cast at this precinct were : for Yeates. 29 ; for Martin, 164; 
 for Respass, 7 ; Martin's plurality 135. The returns were rejected by 
 the board of county canvassers, it is alleged, on the same ground as the 
 returns t'rom Providence was rejected, to wit, that the registrar, and not 
 one of the judges of election, was appointed to deliver and did deliver 
 the original returns to the board (page ."><>). The following is the testi- 
 mony on this point: 
 
 Q. State, whether you wen; a member of the county cauvassiug-board for the county 
 of Pasquotank, who canvassed the returns from the several precincts ill said county at 
 aid election. A. I was registrar of the election at Salem precinct, and brought the re- 
 turns of the election from that precinct to the county canvassing-boardof said county 
 at the request and by the direction of the poll inspectors who conducted the same, and 
 claimed the right to act as a member of said returning-board, but by a majority vote 
 of the board 1 was not allowed to do so. 
 
 Q. Were you present when said board considered said returns, and do you know 
 what action they took in regard to them ? A. I was present ; they proceeded to can- 
 vass the returns from Salem precinct, and refused to count them. 
 
 Q. State whether there is in your office, as register of deeds for said county, any 
 record of the action of the cauvassiug-board for the county of Pasquotank in reference 
 to the returns from said precinct at said election ? A. Yes ; it appears from a book 
 among the records of my office, styled " Election book," which book I now hold in my 
 hand, that the following entry was made on page 47 of the same, headed "Record of 
 au election held for Representative in Congress and senators and representatives m 
 the general assembly, on Tuesday after the first Monday in November, 1878, in the 
 county of Pasquotank, North Carolina," to wit: 
 
 "The votes as returned by the board of canvassers from the precincts of Salem and 
 Providence were not received and counted by the board on account of informality, 
 and then-lore not counted in the above statement. Signed, R. F. Overman, clerk 
 board county canvassers." 
 
 (Question and answer both objected to on account of iueouipetency by contestant'* 
 counsel.) 
 
 So far as this alleged reason is concerned, it is no ground whereby 
 the committee can reject the return, as stated in the case of Providence 
 Township. The contestant further objects to counting the votes at this 
 precinct, because, as he says : 
 
 1st. The polls were not opened until 12 o'clock in 
 
 2d. That before they were opened some twenty-five or thirty voters 
 had left.
 
 408 DIGEST OF ELECTION CASES. 
 
 3d. That nearly one-half of the entire vote of the precinct was not 
 polled. 
 
 4th. That no registrar was duly or legally appointed. 
 
 5th. That the other officers of election were not duly appointed or 
 sworn. 
 
 The following is the whole testimony on these points : 
 
 Deposition of James 8. Wilcox. 
 
 JAMES S. WILCOX, being duly sworn, deposes and says : 
 Examination by W. F. POOL, counsel for contestee : 
 
 Question. What is your name, age, residence, and occupation ? Answer. My name 
 is James S. Wilcox ; I am thirty-two years old; I reside in Salem Township, Pasqno- 
 tauk County, North Carolina; occupation, farming. 
 
 Q. Do you know anything of an election held at Salem precinct, Pasquotank County, 
 North Carolina, on the first Tuesday in November, 1878, at which, among other offi- 
 cers, a member of Congress from the first Congressional district of North Carolina was 
 voted for ? A. I do. I was present at the election. 
 
 Q. What candidates were voted for at that election for Congress from the first dis- 
 trict of North Carolina ? A. Jesse J. Yeates, Joseph J. Martin, and John B. Kespass. 
 
 Q. How many votes did each of these candidates receive at Salem precinct at said 
 election f A. Jesse J. Yeates received twenty-nine (529), J. J. Martin received one 
 hundred and sixty-four (164), and John B. Respass received seven (7) votes. 
 
 Q. State whether you were a member of the county canvassing-board for the county 
 of Pasquotank who canvassed the returns from the several precincts in said county 
 at said election. A. I was registrar of the election at Salem precinct, and brought 
 the returns of the election from that precinct to the county canva&sing-board'of said 
 county at the request and by the direction of the poll inspectors who conducted the 
 same, and claimed the right to act as a member of said returning-board, but by a ma- 
 jority vote of the board I was not allowed to do so. 
 
 Q. Were yon present when said board considered said returns, and do you know 
 what action they took in regard to them 1 A. I was present ; they proceeded to can- 
 vass the returns from Salem precinct, and refused to count them. 
 
 Q. State whether the election at Salem precinct, at the period aforesaid, was fairly 
 conducted. 
 
 (The contestant's counsel objects to this question for the reason that it is not a 
 matter of opinion with the witness as to whether the election was fairly conducted 
 at said precinct, but how it was conducted.) 
 
 A. It was, so far as I know. 
 
 Q. Was any legally qualified voter who offered to vote at said election denied the 
 right to d& so ? 
 
 (The contestant's counsel objects to this question on the ground that it is a matter 
 of opinion with the witness.) 
 
 A. Not that I know of, after the polls were opened [and none could have been re- 
 fused before the polls were opened]. 
 
 (Contestant's counsel objects to the latter part of the answer, inclosed in brackets, 
 for the reason that it is a matter of opinion with the witness.) 
 
 Q. State whether there was any intimidation practiced upon any vot<T at said pre- 
 cinct at said election. A. None that I know of. 
 
 Cross-examination by contestant's counsel : 
 
 Q. Who was the regularly appointed registrar for Salem precinct for said election? 
 
 (Contestee's counsel objects to the question on the ground that the appointment of 
 a regular registrar is a matter of record, and parol evidence is incompetent to prove 
 the same. ) 
 
 A. I was told that J. S. Lister was. 
 
 (Contestee's counsel objects to this answer on the ground it is hearsay.) 
 
 Q. Did you see notices posted in Salem Township, signed by Joshua S. Lister as 
 registrar for Salem precinct, for said election T 
 
 (Contestee's counsel objects to this question on the ground that no answer the wit- 
 ness could make thereto would be competent. ) 
 
 A. I did. 
 
 Q. Do you know that said Joshua S. Lister registered voters in said precinct for 
 eaid election 1 
 
 (Contestee's counsel objects to this question for irrelevancy.) 
 
 A. I do not. 
 
 Q. Who appointed you registrar for Salein precinct for said election ?
 
 YEATES VS. MARTIN. 409 
 
 (Question objected to by contestee'n counsel on the ground of incompetencv.) 
 
 A. F. M. Godfrey. 
 
 Q. When was your appointment as registrar for Salem precinct for said election 
 made by F. M. Godfrey? 
 
 (Question objected to for iucompetency.) 
 
 A. On the first Tuesday in November the day of election. 
 
 Q. At what time on said day of election wen- thu polls opened at Salem pre<-in.;t T 
 
 (Contrstee's counsel objects to this question on the ground that the witness, having 
 already stated that said election was fairly conducted, that no intimidation was prac- 
 ticed, and that no legally qualified voter was denied the right to vote, that the time 
 when the polls were opened is immaterial.) 
 
 A. 1 think it was all of 12 o'clock. 
 
 Q. State whether or not persons, on the day of said election, did not go to Salem 
 precinct to vote before said polls were opened and after sunrise on said day, who left 
 without voting, and did not return to vote : and. if so, in your opinion, how many? 
 A. As many as twenty-five or thirty. 
 
 Q. Were you sworn in as registrar for Salem precinct for said election ? 
 
 (Question objected to by coutestee's counsel on the ground of immateriality. 
 
 A. I was not. 
 
 Q. Were the judges or inspectors of the election at Salem precinct for said election 
 rworn on said day of election ; and, if so, by whornT 
 
 (Contestee's counsel objects to this question on the ground of immateriality.) 
 
 A. They were by me. 
 
 Q. Were yon a inagistrate on said day of election, when you administered the oath 
 to the judges or inspectors of election at Salem precinct on said day of election ? A. 
 I was not. 
 
 Q. Did you hold any office at that time which authorized you to administer oaths f 
 
 (Question objected to by contestee's counsel on the ground that, witness having al- 
 ready stated that he was registrar at said election, the question propounded is a ques- 
 tion of law and not a question of fact.) 
 
 A. None, unless the appointment of Mr. Godfrey gave me the authority. 
 
 Redirect examination : 
 
 Q. Did you hear the persons, of whom you testified in your cross-examination as 
 leaving Salem precinct on said day of election and not returning there to vote, express- 
 themselves as to which candidate they desired to vote fort A. I heard a great many r 
 but cannot say I heard them all. A majority of those whom I did hear express them- 
 selves on the subject said that they desired to vote for J. .1. Martin. I only heard one 
 of the class named say that he desired to vote for J. J. Yeates, the contestant. I heard 
 six of them say that they desired to vote for J. J. Martin. 
 
 Q. From what you saw and heard at said election, which candidate lost the larger 
 number of votes on the account of the late hour when the polls were opened t A. In 
 my opinion, J. J. Martin. 
 
 Q. Was F. M. Godfrey, who you say appointed you registrar at said election, a jus- 
 tice of the peace in Salem Township T and if there were other justices of the peace in 
 said township, state how many and their names. A. F. M. Godfrey signed the appoint- 
 ment of mysef as registrar of election as justice of the peace in and for Salem Town- 
 ship, and was so recognized. There was two others at that time so recognized J. 8. 
 Lister :md AY. I,. Davis. 
 
 Q. You stated in your cross-examination that yon were appointed as registrar on the 
 day of election. Please state the circumstances under which you were appointed. A. 
 About half-past 10 or 11 o'clock the registration book of Salem precinct was sent 
 to the precinct with a message from J. S. Lister, stating that he was sick and that it 
 was impossible for him to attend on that day. I took my horse and went to F. M. 
 Godfrey's, the nearest magistrate, with Mr. Lister's statement, and thereupon said 
 Godfrey appointed me registrar for said election ; and as soon as Mr. Godfrey made 
 the appointment I immediately returned and opened the polls. 
 
 (Question and answer objected to by contestant's counsel on the ground of iucom- 
 petency and irrelevancy.) 
 
 Recross-examinatiom 
 
 Q. State what is the respective Democratic and Republican vote usually a^i at 
 
 Salem precinct. 
 
 (Question objected to by counsel for contestee on the ground of irrelevancy.) 
 
 A. I don't think that 1 can answer correctly the question. 
 
 Q. Is not the usual Democratic vote at Salem precinct one hundred or moret 
 
 (Question objected to by contestee's counsel on the ground of irrelevancy.) 
 
 A. I think it averaged from eightv to one hundred up to the August election oC 
 
 1878.
 
 410 DIGEST OF ELECTION CASES. 
 
 Q. Was not your appointing nt as registrar for Salem precinct by F. M. Godfrey 
 made at your request? A. It was not. 
 
 Q. Have you not held office in Pasquotank County ; if so, what office, and by what 
 political party were you elected? 
 
 (Question objected to by contestee's counsel on the ground of irrelevancy, and an 
 the farther ground that it is not in rebuttal of anything called out iu the redirect ex- 
 amination.) , 
 
 A. I was mayor of Elizabeth City for the year 187G; was nominated by the Repub- 
 lican party and elected by the votes of both parties. I was county commissioner for 
 two years, from about 1872 to 1874. I was nominated by the Republican party and 
 was elected by the votes of both parties. I was a justice of the peace from about 
 1872 to 1874, or about that time, by appointment of clerk of the superior court to fill 
 a vacancy. I was elected a justice of the peace by both parties soon after reconstruc- 
 tion, lu 1875 1 was appointed by the county commissioners sheriff of the county to 
 fill the vacancy of John T. Price, sheriff, and 1876 I was nominated by the Repub- 
 lican party for sheriff of the county and was elected. 
 
 Q. For whom did you vote for Congress at the November election. 1878 ? A. I voted 
 for Joseph J. Martin. 
 
 Direct examination resumed: 
 
 Q. What is the usual majority of the Republicausat Salem preciuct 1 A. Fromono 
 hundred to one hundred and fifty. 
 
 The witness, James S. \Vilcox, desires to make the following corrections : 
 Upon reflection and examination of the records of the court, there were but two 
 magistrates in Salem Township on the day of said election, instead of three, as stated. 
 And one of the six men. as stated, going away without voting. .he believes, afterwards 
 returned and voted. 
 
 JAMES S. WILCOX. 
 
 Sworn and subscribed to before me, having first been read over to the witness, this 
 the 8th day of November, A. D. 1879. 
 
 MILES COMMANDER, 
 Clerk Superior Court raxtjtiotank County 
 and ex officlo Notary Public. 
 
 Deposition of J. S. Lister. 
 
 J. S. LlSTKR, being duly sworn, depones and says, in answer to interrogatories, as 
 fellows : 
 
 By counsel for contester : 
 
 Question. State your name, age. residence, and occupation. Answer. My name in 
 -Joshua S. Lister; my age is forty-two years; residence, Salem Township, Piisq-uota-nk 
 County, North Carolina ; occupation, merchant and farmer. 
 
 Q. State what connection, if any, you had with the election held at Salem precinct, 
 Pasquotauk County, on the first Tuesday in Noveiaber, 1878, and state such facts at* 
 are within your knowledge in regard to the same. A. I was appointed registrar for 
 that preciuct. I registered the voters within the time prescribed by law. I was sick 
 on the morning of the election and unable to attend to any official business, and I sent 
 the registration book by the first trustworthy party that I saw to the alem polling 
 place at about half an hour or an hour after sunrise. I sent the book by John Swain, 
 r., and knowing that his team was slow, directed him if he saw any one going fast** 
 thai) lie could to place it in their hands to be delivered to Mr. Godfrey. I lived six 
 miles from the polling place. 
 
 (Question and answer objected to by contestant's counsel on the ground of irrele- 
 vancy.) 
 
 Q. Do you know who was appointed as registrar in your place, if any one was no 
 appointed? A. I think J. S. Wilcox was. 
 
 (Question and answer objected to by contestant's counsel on the ground of irrele- 
 vancy.) 
 
 Q. Was the appointment of James S. Wilcox as registrar satisfactory to you, aad 
 did it meet with your approval ? A. I would have acquiesced in any appointment 
 Mr. Godfrey made; this appointment was satisfactory to me. 
 
 (Question and answer objected to by contestant's counsel on the ground of incoin- 
 peteucy and irrelevancy.) 
 
 Q. Do you know the number of justices of the peace in Salem Township at the 
 "time of said election ? If HO, please give the number and names. A. There were two, 
 P. M. Godfrey and myself.
 
 YEATF.S VS. MARTIN. 411 
 
 Cross-examination : 
 
 Q. Did you direct Mr. Godfrey to appoint J. S. Wileox registrar for Salein precinct 
 for said election, or di yon take any part in his appointment * A. No. 
 
 (Question and answer objected to by contestee'a counsel on the ground of immate- 
 riality.) 
 Q. What is the usual Democratic vote of Salem precinct ' 
 
 (Question objected to by contestee's counsel on the grounds of inoompeteaoy, irrele- 
 vancy. ;inl that it is not in rebuttal of anything brought out on the direct examina- 
 tion.) 
 
 A. I do not know. 
 
 Q. What is the usual Republican majority at Saiem precinct in said county T A. I 
 don't remember. 
 
 Q. Do you remember whether the Republican majority ever run up to one hun- 
 dred ? A. I do not. 
 
 Q. Wlnt was the vote for Congress in 1876 at Salein precinct for J. J. Yeatea, Dem- 
 ocrat, and McD. Lindsey, Republican ? 
 
 (Question objected to by contestee's counsel on the ground of irrelevancy. ) 
 
 A. Jr appears from the paper which I hold in my hand, purporting to be the return* 
 from Salem Township, that Jesse J. Yeates received 133 votes and D. McD. Lindsey 
 received -201. 
 
 Q. From the same paper which you hold in your hand, from which the vote of 
 Yeates and Lindsrey is tak"n, what is the vote of the Republican and Democratic 
 Presidential electors, respectively, at Salem precinct f 
 
 (Question objected to by conteatee's counsel on the ground of irrelevancy and in- 
 ootapetency.) 
 
 A. The Republican electors received '21? and the Democratic, electors 137 votes. 
 
 Q. Have you any doubt from the signatures to the paper which you hold in your 
 iijuid, that it is the genuine returns from Salem precinct for 1876? 
 
 (Question objected to by coutestee's counsel 071 the ground of iucompetency. ) 
 
 A. I have no doubt that this is the correct return. 
 
 J. S. LISTER. 
 
 This testimony shows that the polls were not opened until 12 o'clock 
 in. ; that J. S. Lister was the regularly appointed registrar ; that he was 
 sick on the morning of election, and that he sent the registration books 
 by the first trustworthy person he saw about half an hour or an hour 
 alter sunrise to the Salem polling place, with directions that they be 
 delivered to Mr. Godfrey; that about half-past 10 or 11 o'clock the 
 registration books were received, with the message that Lister was sick 
 and unable to attend, whereupon Mr. Wilcox, who appears to have been 
 elected sheriff in 187<>, took his horse and went to Mr. Godfrey's, the 
 nearest magistrate, with Mr. Lister's statement, and thereupon Godfrey 
 appointed Wilcox registrar for said election, and Wilcox returned imme- 
 diately and opened the polls; that he was not sworn as registrar; that 
 the judges and inspectors were sworn by him, but that he had no au- 
 thority to administer an oath, unless this appointment as registrar gave 
 him such authority : that the number of magistrates in Salem Town- 
 whip on the day of election was two, Mr. Godfrey and Mr. Lister; that 
 Mr. Lister did not direct Godfrey to appoint Wilcox registrar, but that 
 he would have acquiesced in any appointment Mr. Godfrey made, and 
 that the appointment of Wilcox was satisfactory to him; that as many 
 as twenty- five or thirty persons left the precinct before the polls were 
 opened, and did not vote; and that, in the opinion of the witness, more 
 of these would have voted for Martin than for Yeates; and that other- 
 wise the election was fairly conducted ; and that no legally qualified 
 voter who offered to vote was denied the right to do so ; and that the 
 result of the August elections for solicitor is, Democratic vote, .'0; Re- 
 publican vote. L'ol ; for two State senators, Democratic, .">(> and 60, re- 
 spectively ; Republican, 2>1 and 2>1, respectively (page 92). In the 
 election in November, Yeates received '-'0 ; Martin, 1<J4; Kespass, 7 
 
 VOtes. 
 
 For reasons hereinbefore stated, the fact that the polls were not
 
 412 DIGEST OF ELECTION CASES. 
 
 opened until 12 o'clock does not invalidate the election ; and that as it 
 was the duty of the voters to remain until the board of election officers 
 was filled, in the absence of any evidence that the attempt to hold the 
 election was abandoned, no credit can be given to eitner candidate for . 
 those voters who left and did not vote. Indeed, it is impossible to de- 
 termine for whom they would have voted, but one witness, thinks that 
 a majority were for Martin. A comparison of the votes cast at this 
 election, at which the only officer voted for was a. Representative in 
 Congress, with the August election, when the State officers were voted 
 for, cannot properly be considered for the purpose of correcting its poll. 
 The registrar was appointed by one justice of the peace, and not by two, 
 and acted under this appointment, and must be taken to be a de facto 
 officer. The inference is that the judges were the regularly appointed 
 judges, and were sworn by the registrar, who, so far as appears, was 
 not authorized to administer an oath. The fact that they were not 
 sworn does not invalidate the election. No doubt is suggested that the 
 votes were actually cast as returned. We think that the votes cast at 
 this election should be counted for the candidates for whom they were 
 cast. 
 
 MERRY MILL PRECINCT. 
 
 One hundred and eight votes for Mr. Martin were thrown out and not 
 counted, because they had on them the words "Republican ticket" at 
 or near the head of the ticket, on the same side as the name of the can- 
 didate and office. They were thrown out on the ground that the words 
 "Republican ticket" were a device within the meaning of the laws of 
 North Carolina. Mr. Martin contends that these ballots should be 
 counted for him. The ballots were procured to be printed in this form 
 by a Mr. James B. Martin, " an active Democratic politician," and an 
 active supporter of Mr. Yeates (Record, page 79), although Mr. Yeates 
 had nothing to do with it. 
 
 Section 18, chapter 275, of the Laws of North Carolina, 1877, pro- 
 vides 
 
 * * * The ballots shall be on white paper and may be printed or written, or partly 
 written and partly printed, and shall be without deri<-t. 
 
 SEC. 20. When the election shall be finished the registrars and judges of election, 
 in presence of snch of the electors as may choose to attend, shall open the boxes and 
 count the ballots, reading aloud the names of the persons who shall appear on each 
 ticket ; and if there shall be two or more tickets rolled np together, or any ticket shall 
 contain the names of more persons than such elector has a right to vote for, or shall 
 have a derice upon it, in either of these cases such tickets shall not be numbered iu 
 taking the ballots, but shall be void, and the said counting of votes shall be continued 
 without adjournment until completed and the result thereof declared. 
 
 These votes were rejected by the State authorities and are not included 
 in Mr. Martin's returned plurality. We teave to the consideration of 
 the House whether these votes should now be counted for Mr. Martin 
 or not. 
 
 ' GOOSE NEST PRECINCT. 
 
 The contestee claims that one hundred and thirty-nine votes should be 
 counted for him that were not received at this precinct. The vote as re- 
 ceived and counted at this precinct was, for Yeates, 184 ; for Martin, 52 
 (page 77, Record). Prior to September, 1876, Goose Nest precinct and 
 Hamilton precinct were separate precincts in the same township. Sep- 
 tember 4, 1876, Goose Nest precinct was abolished and the names of its
 
 YEATES VS. MARTIN. 413 
 
 registered electors transferred to the registration books of Hamilton 
 precinct. From that time up to August 5, 1878, all the electors of Ham- 
 ilton township were required to be registered and to vote at Hamilton 
 precinct. On the 5th day of August, 1878, the precinct of Goose Nest 
 wns re-established and a registrar for Goose Nest appointed, who was 
 required to transfer from the registration books of -Hamilton precinct 
 the names of such registered electors as were then resident in Goose 
 Nest precinct, which he did. (See Kecord, page 69.) 
 
 This was done under the sixth and seventh sections of the election 
 laws of North Carolina, approved March 12, 1877, which are in these 
 words, to wit : 
 
 SEC. 6. Registrars .shall be furnished with a registration book, and it shall be their 
 duty to revise the existing registration books of their precinct or township in such 
 n manner that said books shall show an accurate list of electors previously registered 
 in such precinc tor township, and still residing therein, without requiring such elect- 
 ors to be registered anew, &,., Arc. 
 
 SKC. 7. No elector shall b<> entitled to register or vote in any other precinct or town- 
 -ship than the one in which he is an actual and bona fide resident on the day of elec- 
 tion, and no certificate of registration shall be given. 
 
 The registration book for Goose Nest precinct having been prepared 
 in this way, the judges of election met on the afternoon of the day pre- 
 ceding the election for members of Congress, when their attention was 
 called to the twelfth section of the North Carolina election laws, which 
 is in these words, to wit : 
 
 SKC. 12. Every person who shall present himself for registration shall state, under 
 oath, how long he has continuously resided in this State, and in the county in which 
 he otVers to vote, whether he is an alien or native-born, when he became twenty-one 
 years of age, Whether married or single, and where and with whom he resides. Upon 
 the request of an elector the registrar shall require the applicant to prove his identity, 
 or age, and residence, by the testimony of at least one elector, under oath. And if 
 an elector has previously been admitted to registration in any ward, township, or 
 precinct in the county in which he resides, he shall not be allowed to register again 
 in another ward, precinct, or township in the same county until he produces a certifi- 
 cate of the registrar of the former township, ward, or precinct, that said elector has 
 removed from said township, ward, or precinct, and that his name has been erased 
 from the registration books of the ward, township, or precinct from which he has re- 
 moved ; and the identity of any person claiming the right to be registered in any pre- 
 cinct of the same county, by virtue of such certificate, with the person named therein, 
 .shall be proved by the oath of the claimant, and, when required by the registrar, 
 by the oath of at least one other elector. Every person found qualified shall take 
 
 the following oath : " I, , do solemnly swear (or arh'rm) that I will support the 
 
 Constitution of the United States and the constitution of the State of Nor.th Carolina ; 
 that I have been a resident of the State ot North Carolina for twelve mouths, and of 
 
 the county of for ninety days; that I am a duly qualified elector, and that 1 
 
 hasc not registered for this election in any other precinct, and that I ani an actual and 
 
 bona fide resident of township (or precinct) ; so help me God." And, thereupon, 
 
 said person shall be permitted to register, and the date of his registration shall be 
 noted opposite his name in the registration book. 
 
 The judges of election thereupon decided that, under section 12, no 
 elector whose name had been transferred to the Goose Nest registra- 
 tion book should be allowed to vote on the next day, unless he should 
 produce a certificate that his name had been erased from the Hamilton 
 book. 
 
 And on the next day they refused the votes on this ground of a cer- 
 tain number of persons ; Johnson says of 154, and he gave a list of !<><> 
 names, six of whom he says were allowed to vote (page 75, Record) ; 
 Lamb, page 78, testifies that he finds all the names on the list on the 
 registration books of Goose, Nest precinct marked challenged and rejected 
 except thirteen, one of whom voted, and that he finds all these names 
 on the registration book of Hamilton precinct except 21. As these L'l 
 may not include the 13 names of the list on the Goose Nest books, it is
 
 414 DIGEST OF ELECTION CASES. 
 
 neecessary to deduct the sum of 21 and 13, to wit, 34 from Io4, leaving 
 120 names, which must have been on the registration books of both 
 Goose Nest and Hamilton precincts, and which were marked challenged 
 and rejected on the registration book of Goose Nest precinct. Johnson 
 swears that these all tendered votes for Martin as Representative, and 
 were rejected on the ground that they did not produce a certificate that 
 their names had been erased from the registration books of Hamilton, 
 precinct, and this is confirmed by other witnesses. v ^OU^9 
 
 On the night preceding the election, and after the judges at Goose 
 Nest had rendered their above decision, J. T. Hyman, a Democrat, the 
 registrar at Goose Nest, in company with one J. T. Weldo, the person 
 who had called the attention of the judges to the said twelfth section, 
 and one Boyle, went to Hamilton precinct and asked the Hamilton 
 registrar to issue the required certificates of erasure to a number of 
 electors, most of whose names were upon a list presented by them, com- 
 prising between one and two hundred names, for which electors the 
 required certificates were issued by the Hamilton registrar, taking until 
 about 10 o'clock that night to get through the list. Besides these, 
 about a dozen electors applied in person for such certificates and obtained 
 them. Hymian, the registrar at Goose Nest, before 12 o'clock that night,, 
 marked the word u certificate" opposite the names of the above-named 
 electors in his registration book, and opposite the names of the other 
 electors, whose names had been transferred to his book from the Ham- 
 ilton book, he placed a cross mark. Those whose names were marked 
 opposite with the word ''certificate * were allowed to vote next day, and 
 those marked with a cross were refused, singly, as each presented his 
 ballot. , 
 
 The electors so refused their votes then applied on election day, 
 through one W. A. Johnson, an elector, to the registrar of Hamilton 
 precinct for the certificates required, and the said registrar refused to 
 give them the certificates (page 75). 
 
 These electors were the same persons who had tendered tlieir votes 
 for Martin as Representative in Congress. 
 
 Upon this state of facts the contestee contends that he is entitled to 
 have counted for him the votes thus ottered and illegally refused or, 
 to have rejected the 132 majority already counted for the contestant at 
 this precinct on these grounds : 
 
 I. Unless the transfer of the names of electors at this precinct from the registration 
 book of Hamilton to the i-egistratiou book of Goose Nest was valid as a registration 
 without any personal act on the part of electors, no one of these electors was legally 
 registered at the precinct; for it is not in evidence that any one applied in person to 
 be registered and took the required oath. The fact that an oath is required as a pre- 
 requisite to registration maJen registration a personal act, which cannot he performed 
 by proxy. If, as contended by contestant, a certificate of removal of residence from 
 Hamilton precinct and erasure from the registration book of that precinct was a pre- 
 requisite to registration in Goose Nest precinct, then, under section 12 of the North 
 Carolina election law, such certificate was required to be presented in person previous 
 to registration anew at Goose Nest; and the law expressly requires that such pres- 
 entation shall be accompanied with the oath of the elector that he is the identical 
 person named in the certificate, and also by the general oath set forth in section 1<J. 
 It is not pretended that any of the electors for whom such certificates were taken out 
 presented them in person or took the required oaths. Indeed, the contrary appears. 
 (See Record, page 71.) Arid it does not appear that those for whom certificates were 
 taken out by proxy either authorized the application for them or even knew that the 
 certificates had been applied for or taken out for them until informed of the fact at 
 the polls. 
 
 II. If such certificates were a prerequisite to registration, then the granting v of 
 them on the day of election would have entitled the holders to register on that day, 
 because they would in that case "become on that day entitled to register," as re- 
 quired in the thirteenth section of the election laws of North Carolina.
 
 YEATES VS. MARTIN. 415 
 
 III., The application for these certificates, made for these electors on the day of 
 election, and lefused, was a complete compliance, on their part, with the requirements 
 of the law as interpreted by the judges of election, and entitled them to vote as fully 
 as it the certificates had been granted and they duly registered. See aet of May 31, 
 1H70, sec. 3 (U. S. Statutes at Large, vol. 17, p. 140). 
 
 IV. Hut really these certificates were, not necessary at all, and they were no(, even 
 authorized to be issued under the twelfth section of the North Carolina election law. 
 It. is evident that the twelfth section was meant only for such electors as should change 
 their rexidence from one township or precinct to another; and therefore has no refer- 
 ence to the case in hand, where none of the electors in question had changed their 
 residence. This is plain from the fact that each certificate is required to state that 
 "the elector has removed 'from the said township or precinct." It is still plainer 
 from the fact that such certificates were only for the purpose of enabling registered 
 voters who had removed "to register again in another ward, precinct, or township." 
 Bat their registration at Goose Nest had already been completed under see. H of the 
 North Carolina law, the proceeding under which section is declared to be for the ex- 
 press purpose of not " requiring such electors to be registered anew." 
 
 We think the last ground at least is well taken, and that the statute 
 so far as a certificate is concerned has no application to such a cast' as 
 this is. The certificate required is " a certificate of the registrar of the 
 former township, ward, or precinct that said elector has removed from 
 said township, ward, or precinct, and that his name has been erased 
 from the registration books of the ward, township, or precinct from 
 which he has removed" None of these electors whose votes were re- 
 fused had removed from any precinct, but by the re-establishment of 
 Goose Nest precinct, without any removal on their part, they became 
 resident in that precinct, and as the registrar had properly put their 
 names on the registration books of Goose Nest pursuant to section 6 of 
 the act of March 12, 1877, we think their votes should have been re- 
 ceived, and having been illegally rejected should now be counted, and 
 we find the number to have been at least 120, which should be added to 
 Mr. Martin's vote. 
 
 RK6ULT. 
 
 Martin's returned plurality '. 51 
 
 Add plurality for Martin in Salem precinct, not counted 135 
 
 Add votes rejected in (loose Nest precinct, at least 120 
 
 306 
 Subtract Yeates's plurality in Providence Township, not counted 39 
 
 Martin's plurality 267 
 
 If to this is added the votes cast for Mr. Martin in Merry Hill pre- 
 cinct, and rejected, to wit, 108, the plurality of Mr. Martin is 375. 
 We recommend the passage of thie following resolutions : 
 Resolved, That Joseph J. Martin, the sitting member, is entitled to 
 his seat in this House as a Representative in the Forty-sixth Congress 
 from the first Congressional district of North Carolina. 
 
 Resolved, That Jesse J. Yeates is not entitled to a seat in this House 
 as a Representative in the Forty-sixth Congress from the first Congres- 
 sional district of North Carolina. 
 
 W. A. FIELD. 
 
 J. WARREN KEIFER. 
 
 J. H. CAMP. 
 
 E. OVERTON, JR. 
 
 W. H. CALKINS.
 
 416 DIGEST OF ELECTION CASES. 
 
 ANDREW G. CURTIN vs. SETH H. YOCTJM. 
 
 TWENTIETH CONGRESSIONAL DISTRICT OF PENNSYLVANIA. 
 
 The principal question iu this case is whether all the clauses in the new constitution 
 and laws of Pennsylvania relating to "suffrage and elections," and especially 
 those prescribing the qualifications of electors, are mandatory, and therefore not 
 to be deviated from in any particular, or whether some of them are mandatory 
 and others directory merely 
 
 Held, That the provisions of the constitution (Pennsylvania) relating to the registry 
 of voters is not mandatory in so far as it affects the right of a non-registered voter 
 to vote, if he is otherwise qualified, the constitution providing : " But no elector 
 shall be deprived of the privilege of voting by reason of his name not being-reg- 
 istered. " 
 
 Held, That the election law requiring a qualified elector to produce his own affidavit 
 and that of a voter of his election district to his qualifications is directory merely. 
 If the elector refuses to comply on being requested, the vote should be refused, 
 because he refuses to obey a reasonable regulation, and he hurts no one but him- 
 self. But if he is allowed to vote without being required to file the affidavits, 
 and is otherwise qualified, his vote is not an illegal one. 
 
 Held, That where the law requires several acts to be done by the officers of election, 
 a<* (1) to ascertain whether a party offering to vote was registered ; if he was not, 
 (2) to require an affidavit of himself and a registered voter ; (3) to see tlyit it was 
 subscribed and sworn ; and (4) to keep it till the election was over, and then re- 
 turn it to the prothonotary's office with certain other papers, and the last act was 
 not performed, does not show that the rest were left undone, nor must they be pre- 
 sumed not to have required the affidavits at all. 
 
 The House adopted the minority report May 11, 1880. 
 
 Mr. CALKINS submitted the following as the 
 
 VIEWS OF THE MINORITY: 
 
 It was admitted in argument in this case that one of the controlling 
 questions is whether all the clauses in the new constitution and laws 
 of Pennsylvania relating to "' suffrage and elections," and especially 
 those prescribing the qualifications of electors, are mandatory, and there- 
 fore not to be deviated from in any particular, or whether some of them 
 are mandatory and others directory merely. 
 
 The qualifications under the constitution are 
 
 ARTICLE VIII. 
 
 SECTION 1. Every male citizen twenty-one years of age, possessing the following 
 qualifications, shall be entitled to vote at all elections: 
 
 First. He shall have been a citizen of the United States at least one month. 
 
 Second. He shall have resided in the State one year (or if, having previously been 
 a qualified elector or native-born citizen of the State, he shall have removed therefrom 
 and returned, then six months) immediately preceding the election. 
 
 Third. He shall have resided in the election district where he shall offer to vote at 
 least two months immediately preceding the election. 
 
 Fourth. If twenty-two years of age or upwards, he shall have paid within two years
 
 CUKTIN VS. YOCUM. 417 
 
 a State and county tux, which shall have beeu assessed at least two months and paid 
 at Vast one month before the ejection. 
 
 These are the qualifications of voters as determined and fixed in the 
 organic law of Pennsylvania, and are not in conflict with section 2, ar- 
 ticle 1, of the Constitution of the United States, which provides that 
 
 . 1 iic House <?' Representatives shall be composed of members chosen every second 
 year by the people of the several Start-.-: and the electorsin each State shall have the 
 qualifications requisite for the most numerous branch of the State legislature.. 
 
 It will be seen that these qualifications are five in number, and all 
 pertain to the person of the voter. 
 
 They are personal qualifications, namely : First, age; second, United 
 States citizenship; third. State residence; fourth, election district or 
 precinct residence; fifth, payment of taxes. 
 
 We are free to admit that no person is a qualified voter who does not 
 combine in himself all these prerequisites; that the provisions of the 
 constitution in relation thereto are imperative, and are not to be de- 
 parted from. As no question which can affect the result in this case 
 arises under any of these clauses, we pass to another question, which is 
 more difficult to solve, and one not free from conflict and doubt. It is 
 this : Are the constitution and laws of Pennsylvania on the subject of 
 registration imperative and mandatory ? The constitutional provision 
 is as follows : 
 
 ARTICLE VIII. 
 
 SEO. 4. All elections by the citizens shall be by ballot. Every ballot voted shall 
 be numbered in the order in which it shall be received, and the number recorded by 
 the election officers on the list of voters, opposite the name of the elector who pre- 
 sents the ballot.. Any elector may write his name upon his ticket, or cause the same 
 to be written thereon, and attested by a citizen of the district. The election officers 
 shall be. sworn or affirmed not to disclose how any elector shall have voted, nnless re- 
 quired to do so as a witness in a judicial proceeding. 
 
 SEC. 1. All laws regulating the holding of elections by the citizens, or for the regis- 
 tration of electors, shall be uniform throughout the State ; but no elector shall be de- 
 prived of the privilege of voting by reason of his name not being registered. 
 
 The foregoing two sections of the constitution comprise all that is 
 necessary to quote in this connection. The law passed to carry out the 
 above provisions, so far as is necessary to notice, will appear as we pro- 
 gress in this investigation. 
 
 The first section of the law relates to the duties of the assessors iii 
 making registry lists and returning them to the county commissioners, 
 setting aside a time for revision before them. It also provides the 
 machinery for carrying on the election. This is true also of the next 
 preceding sections down to and including section 9. 
 
 Section 10 of the registry law under consideration refers to non- regis- 
 tered voters. We deem it proper to set it out in full. 
 
 On the day of election any person whose name shall not appear on the registry of 
 voters, and who claims the right to vote at said election, shall produce at least one 
 qualified voter of the district in which he claims to be a voter for the period of at 
 least two months immediately preceding said election, which witness shall be sworn 
 or affirmed, and subscribe a written or partly written and partly printed affidavit to 
 the facts stated by him, which affidavit shall define clearly where the residence is 
 of the person so claiming to be a voter : and the person so claiming the right to vote 
 shall also take and subscribe a written or partly written and partly printed affidavit, 
 stating to the best of his knowledge and belief when and where he was born; that 
 he has been a citizen of the United States for one month, and of the Commonwealth 
 of Pennsylvania ; that he has resided in the Commonwealth one year, or if formerly a 
 qualified elector, or a native-born citizeu thereof, and has removed therefrom <\nd 
 
 H. Mis. 58 27
 
 418 DIGEST OF ELECTION CASES. 
 
 returned, that be has resided therein six months next preceding .said election ; that he 
 has resided in the district in which he claims to he a voter for the period of at least 
 two months immediately preceding said election ; that lie has not moved into the 
 district for the purpose of voting therein ; that he has, if twenty-two years of age, 
 or upwards, paid a State or county tax within two years, which was assessed at least 
 two months and paid at least one month before the election. 
 
 The said affidavit shall also state when and where the tax claimed to be paid by 
 the affidavit was assessed, and when and where and to whom paid ; and the tax re- 
 ceipt therefor shall be produced for examination, unless the affiant shall state in )ii 
 affidavit that it has been lost or destroyed, or that he never received any; and. if a 
 naturalized citizen, shall also state, when, where, and by what court he was natural- 
 ized, and shall also produce his certificate of naturalization for examination. But if 
 the person so claiming the right to vote shall take and subscribe an affidavit that he 
 is a native-born citizen of the United States, or if born elsewhere shall state the fact 
 in his affidavit, and shall produce evidence that he has been naturalized or that 
 he is entitled to citizenship by reason of his fathers naturalization : and sball further 
 state in his affidavit that he is, at the time of making the affidavit, of the age of 
 twenty-one and under twenty-two years ; that be has been a citizen of the United 
 States one month and has resided in the State one year : or if a native-born citizen 
 of the State and removed therefrom and returned, that he has resided therein six 
 months next preceding said election, and in the election district two months imme- 
 diately preceding said election, he shall be entitled to vote although he shall not have 
 paid taxes. 
 
 The said affidavits of all persons making such claims, and the affidavits of the wit- 
 nesses to their residence, shall be preserved by the election board, and at the close 
 of the election they shall be inclosed with the list of voters, tally-list, and other papers 
 required by law to be filed by the return judge with the prothonotary, and shall re- 
 main on file therewith in the prothouotary s office, subject to examination as other 
 election papers are. . If the election officers shall find that the applicant possesses all 
 the legal qualifications of a voter he shall be permitted to vote, and his name shall 
 be added to the list of taxables by the election officers, the word " tax" being added 
 when the claimant claims to vote on tax, and the word "age" when he claims to 
 vote on age; the same words being added by the clerks in each case respectively on 
 the lists of persons voting at such elections. 
 
 Sections 11 and 12 of the act provide penalties for the failure of any 
 of the election officers to perform their duties. 
 
 The remaining sections of the law provide for the counting of the 
 vote, the return, and the manner of preserving the papers, ballots, &c. ; 
 in short, provides the machinery for carrying out the will of the people 
 as expressed through the ballot-box. Other provisions of the law will 
 be adverted to as they arise. 
 
 Having brought to the notice of the House the constitutional provis- 
 ions, and the law passed by the general assembly of the State of Penn- 
 sylvania to carry it into effect, it is proper to call attention to the con- 
 struction thereof as contended for by the parties to the contest, so far 
 as they affect the present question. 
 
 It is assumed by contestant, and we believe, found to be true by the 
 majority of the committee that it is proven that 1,000 and upwards of 
 non-registered electors, voted at the election at which contestant and 
 contestee were opposing candidates. We cannot acquiesce in this find- 
 ing, as we believe the evidence does not support this view, and we will 
 discuss this branch of the case at the proper time. But assuming- the 
 facts to be as stated, we must dissent from the conclusion of law arrived 
 at by our associates. We do not believe that the pro visions of the con- 
 stitution relating to the registry of voters is mandatory in so far as it 
 affects the right of a non registered voter to vote if lie is otherwise 
 qualified. The clause of the constitution in terms excludes any such 
 conclusion. The words u but no elector shall be deprived of the priv- 
 ilege of voting by reason of his name not being registered," found in 
 section 1, article 8, to my mind settles the question. They are plain, 
 and admit of but one interpretation, and applying the acknowledged 
 rule to them that the ordinary import of words shall be taken to be 
 their meaning, leaves no room for doubt.
 
 CURTIN VS. YOCUM. 419 
 
 But the law passed to cany our the section seems to he imperative, 
 and it is a matter of some difficulty to decide \vhether it is repugnant 
 to that clause which would seem to limit the power of the legislatui 
 disfranchise an elector for non-registration who is otherwise qualified. 
 Now, we admit that registry laws are salutary, and ought to be main- 
 tained in all proper cases and by all proper methods. But to maintain 
 them constitutional restrictions must not be disregarded. 
 
 The foregoing clause of the constitution is, in our judgment, a limita- 
 tion on the power of the legislature of the State, and it cannot pa- 
 registry law whereby a voter shall be deprived of suffrage, if otherwise 
 qualified, by reason of non-registration. This, it seems to us, was the 
 very purpose of the clause. If left out the section would be perfect. 
 It wa> to prevent the legislature from disfranchising qualified voter- 
 that it was inserted. 
 
 The new constitution of Pennsylvania was made whilst all the adju- 
 dicated cases respecting the old "onstitution, and the laws passed there- 
 under, were in full force, and well known to the members composing 
 the constitutional convention. It must be conclusively presumed that 
 it was in the light of these past judicial constructions that the conven- 
 tion acted in framing the new constitution, and in all cases where tin- 
 provisions of the old were adequate they were ingrafted into the new; 
 but where they had been found to be deficient, and did not meet the 
 will or wish of the people, they were taken down, altered, or amended. 
 
 A glance at the constitution of 1S3S and its amendments shows that 
 it was silent as to registry lavs. Article 3, sections 1, 2, and 3, of the 
 old constitution are among the changed and altered provisions of the 
 new, and it must be presumed that the old constitution, and the judicial 
 constructions given it on the subject of suffrage and elections, were not 
 in harmony with the sentiment of the people of the State. Hence the 
 provisions relating to registration. This is the only material chang 
 made. In view of this, the act of 1831*. section i"> et seq., referred to in 
 the majority report, is not in point, and can have no weight in deter- 
 mining the question before us, because the whole power relating to 
 registration under the old constitution resided in the legislature; it was 
 unrestricted by constitutional barriers ; if it saw fit as it did to make 
 an imperative registration law, there was no limitation on its powei 
 under the constitution of 1838. This was held in the case of Patterson 
 >-. Barlow (60 Penu. St. Rep., 54) ; this case expressely overrules Page 
 o. Allen (58 Penu. St. Rep., 338), holding otherwise. 
 
 In the case of Patterson <<$. Barlow, supra, the supreme court of the 
 State held the rule announced by Chief Justice Shaw, of Massachusetts,, 
 in the case of Capon >*. Foster (12 Pick., 485), namely, that an imper- 
 ative registration law, not forbidden by the constitution, was a reason- 
 able regulation, under which the right to vote might be exercised, and 
 was not therefore an additional test to the qualification of electors. 
 i Se<- Brightly Contested Election Cases. No. 2, page 51, note .) 
 
 The new constitution expressly fixes and determines the right of all 
 qualified non-registered voters to vote, by saying, "But no elector shall 
 be deprived of the privilege of voting by reason of his name not being 
 registered." \\Y therefore conclude that all provisions of the law set out 
 in the majority report, and cited in this, so far as it attempts (if th.i 
 held to be its proper construction) to hold the elector responsible for 
 the act or omission of election officers, regarding registration, or so far 
 as it restrict^ his right to vote, if he is otherwise qualified, is an addi- 
 tional test of his right to vote, is repugnant to that sacred privilege re- 
 served to each citizen, so aptly expressed in the very words of the con-
 
 420 DIGEST OF ELECTION CASES. 
 
 stitutiou, that he shall not be ''deprived of the privilege of voting- by 
 reason of his name not being registered." This is but a declaration of a 
 fundamental principle laid down in every text-book by every respect- 
 able writer, and recognized by all the courts in the laud. Judge Cooley 
 expresses it tersely and strongly, as follows : 
 
 That one entitled to vote shall not be deprived of the privilege by the action of th* 
 authorities is a fundamental principle. (Cooley's Con. Liin.. page (316.) 
 
 All the cases cited to the contrary are where either the constitution 
 has in terms made registration imperative and jnrisdictional, or where 
 the legislature, in the exercise of an unrestrained and unrestricted power, 
 has enacted laws of the same import. (See Brightly's Lead. Cases on 
 Elections, 62, note, supra.) In this view of the case the registration laws 
 passed in aid of the constitution must be construed to be directory 
 merely, so far as they touch the right of the voter to exercise the right 
 of suffrage. By giving them this construct ion they can stand untouched, 
 as not being in conflict with the constitution, and the wise and just pro- 
 visions of the registry law be maintained: the penal clauses can be en- 
 forced against the officers of election, and all the checks and safeguards 
 which they were intended to throw around the ballot can thus be rigidly 
 enforced. (See State vs. Smith, 07 Maine, 328.) 
 
 We regard section 10 of the election law of Pennsylvania, supra, so far 
 as it requires a qualified elector to produce his own affidavit and that 
 of a voter of his election district to his qualifications, directory merely, 
 and in the nature of a law to authorize the board of election, on the day 
 of election, while it is being held, to correct the registry lists thereto- 
 fore furnished them by the county commissioners, by adding the names 
 of qualified voters thereto who may have been unintentionally omitted. 
 The registry lists and poll-lists will then agree. It is the duty of the 
 election officers to comply with this law. It is imperative on them, and 
 if they fail they subject themselves to the penalties provided in section 
 12 of the registry law. But to allow a uon- registered voter to vote with- 
 out requiring him to comply with the law, if he is otherwise qualified, is 
 quite a different question. If he refuses to comply on being requested, 
 then it is clearly the duty of the officers to refuse his vote, because 
 he refuses to obey a reasonable regulation prescribed by the legislature, 
 and he hurts no ne but himself. But if he is allowed to vote without 
 being required to file the affidavits, and is otherwise qualified, his vote, 
 is not an illegal one. The officers of election have simply failed to take 
 and preserve the evidence which the law requires of them ; but the fail- 
 ure on their part to take and preserve this evidence does net reach the 
 qualification of the voter. Nor do we believe the courts will hold any 
 such doctrine, for it would be equivalent to holding the evidence of a 
 fact superior to the fact itself. 
 
 We think this question, under the present constitution and laws of 
 Pennsylvania, not an open one. The highest court of judicature of the 
 State has decided it ; at least it has given a construction to that part 
 of the new constitution under consideration, and we quote therefrom: 
 
 The State constitution, article 8, section 1, gives to every citizen possessing the 
 qualifications prescribed the right to vote; and section 7 of the same article provides 
 that no elector shall be deprived of the privilege of voting by reason of his name not 
 being registered. To disfranchise all the voters of the township, as we are asked to 
 do in this petition, the facts on which we are required to act should show a rase free 
 from legal doubt. If we by our decision should permit the carelessness, or even tLe 
 fraud, of officers whose duty it is to furnish a list of voters at the elections to defeat 
 the election and deprive the people of the county of the officer who was elected by a 
 majority of their votes, we would thus make the people suft'er for an act in which they 
 did not participate and which they did not sanction. In so doing, instead of punish-
 
 C17RTIN VS. YOCUM. 421 
 
 ing an officer for the violation of the election law. we practically pnnish the voters of the 
 county !>y defeating their choice of a county officer as declared at The election. A de- 
 cision of this kind would bo fraught with danger, by inviting unscrupulous or un- 
 principled persons on the eve of an important election r destroy the li^t of 
 voters or other important papers in a township in which the majority may determine 
 tin result in the county. Huh-s applicable to contested elections.' like' other legal 
 rules, must be uniform, and the results and consequents O f decisions therefore de 
 tennine. their correctness Wheelock's case, 1 Norris, '297-11. ) 
 
 Wecannotagree with the majority of the committee in their deductions 
 from this case. We cannot agree either that it is shown by the evidence 
 in the case at bar that the voters were themselves at fault. I challenge 
 the correctness of this finding. The fact is, there is nothing shown in 
 the evidence that any considerable number of voters were in fault at 
 all; but the case stands on evidence of this kind. The registry lists of 
 several voting precincts are introduced in evidence, and then the poll- 
 lists. AH the names appearing on the poll-lists, and not on the registry 
 lists, are set down and claimed to be illegal. In this way the 1,000 and 
 upwards non-registered votersareniadenp. And we under take to main- 
 tain that under the evidence, after all fraudulent votes absolutely 
 proven as having been thrown for each of the parties are taken from 
 their returned vote, the result will not vary far from the returned ma- 
 jority for contestee. So that the question turns ou the non-registered. 
 votes proven as we have above stated. 
 
 Wheelock's case was much stronger, for, after reciting in his petition 
 that the commissioners had failed in their duty in not sending the 
 registry list to the election officers in Freehold Township (upon which 
 statement we inter the recitals in the majority report are predicated), he 
 goes on to recite another very important fact, which is overlooked seem - 
 iugly in the statement of the majority, which is, " Xor was there then any 
 registry of voters present at the same, whereby the names of the resident 
 teixables and voters of said district could be ascertained." (Wheelock's 
 case, page 1'98.) This petition was demurred to, and all the tacts stated 
 were of course taken on demurrer to be true. Yet the court say that, 
 although there was no registry list at the polls or elsewhere, so far as 
 appears, the people must not be punished for the failure of the officers to 
 do their duty; that the clause ''no voter shall be deprived of the priv- 
 ilege of voting by reason of his name not being registered" protects all 
 legal voters in the right of suffrage; and the inference to our mind is 
 irresistible, under this decision, that he is not even prima facie an illegal 
 voter because of non registration. 
 
 The contestant assumes that having shown a discrepancy between 
 the registry lists and the poll-lists, and the further fact that affidavit* 
 were not ou file in the prothonotary's office corresponding to the excess 
 of names on the poll-lists, therefore all persons thus voting were 
 prima facie illegal voters. In other words, that it must be presumed 
 the officers of election failed to perform all their duties by the failure to 
 return affidavits of non-registered voters to the prothonotary's oilier. 
 
 The rule of law is that a public officer is presumed to do his duty the 
 contrary not appearing. Under the law there were several acts required 
 to be (lone by the officers. The first one was to ascertain whether a 
 person ottering to vote was registered: if he was not, to require an affi- 
 davit of himself and also of a registered voter to certain facts; to see 
 that it was subscribed and sworn: to take aud keep it. till the election 
 was over, and then return it to the prothonotary's office with certain 
 other papers. To show that the last act was not performed d<,es not 
 t*ho\v that the rest were left, undone, or that proof of failure in this out- 
 particular is proof of a failure iu all. It doubtles- does overcome the
 
 422 DIGEST OF ELECTION CASES. 
 
 presumption as to the particular act, but we doubt whether it can be ex- 
 tended any further. We are not ready to assent to the proposition that 
 because the election officers failed to return the required affidavits to 
 the office of the prothonotary, therefore they must be presumed not 
 not to have required them at all. 
 
 Happily, however, it appears in the testimony submitted that in 
 nearly every instance direct proof was made that the officers did require 
 the affidavits, but that they mistook their duty, and, instead of return- 
 ing them to the prothonotary's office, sealed them up in the ballot-boxes 
 with the tickets, and deposited the boxes with the nearest justice of the 
 peace to the polling-place, as required by law. 
 
 At this point an important and interesting question of evidence pre- 
 sents itself, namely, as to whether the burden of proof shifts from the 
 contestant to the contestee after contestant has shown prima facie a 
 sufficient number of illegal votes thrown which if cast for contestee 
 would wipe out his majority. 
 
 We cannot perceive that the well-known rule contended for applies. 
 To illustrate it we admit that in a case where A is sued on a promissory 
 note by B plea, payment. To support his plea A offers proof that on 
 the day of or a day subsequent to the maturity of the note he paid B 
 a sum of money equal to the amount due. B admits the receipt of the 
 money, but alleges it was paid for another purpose. The burden now 
 shifts to B, and he must show by preponderating evidence that it was 
 applied on some other debt or for some other purpose than the pay- 
 ment of the note. 
 
 But the declaration in contestant's notice is that the contestee re- 
 ceived a sufficient number of illegal votes to more than counterbalance 
 his returned majority. Proof that tends to show a number of illegal 
 votes cast in excess of the returned majority for the contestee is not of 
 itself evidence that contestee received them. It does not even raise a 
 presumption to that effect; and when contestee is disconnected with 
 such vote when he has no lot or part in bringing it about, and exerts 
 no influence in having it cast he certainly cannot be placed in the posi- 
 tion of being compelled to prove a negative in order to maintain his 
 seat. Such a doctrine simply overturns all rales of evidence. \V<> can 
 conceive of cases which might be different, but these cases are not ap- 
 plicable to the one at bar. We know of no safer rule in judicial proceed 
 ings than the elementary one that a declarant must prove the material 
 allegations of his declaration, by a preponderance of evidence. Anything 
 short of this is an innovation on all rules of evidence, and must meet 
 with disfavor in all courts where justice is meted out. 
 
 We refer now to a very important fact in the testimony. On exam- 
 ination of the record in this case we find that over the date of Decem- 
 ber 10, 1878, W. F. Keber certifies to having served the contestee with 
 IT copy of the notice of contest in this case (see part 1, page 30). 
 
 On the 8th of January, 1879, the contestant accepted service of coii- 
 testee's answer (see part 1, page 108); this would leave 2"2 days in Jan- 
 uary and 18 days in February for contestant to take his testimony un- 
 der the statute. 
 
 Under the law of Pennsylvania there are two elections each year ; one 
 occurs on the third Tuesday of February and the other on the first Tues- 
 day after the first Monday in November (see section 15, registry act, 
 1874, page 3D). It happened that the third Tuesday of February came 
 i>n the 18th day of the month in the year 1870; that also happened to 
 be the last day for taking testimony on the part of the contestant. The 
 contestee could not take testimony before the time expired for the
 
 CURTIN VS. Y0< 423 
 
 taking of contestant's testimony. Under the laws of Pennsylvania the 
 ballots and other papers relating to the election are required to be 
 sealed up in the ballot boxes after the election is over, and the ballot- 
 box deposited with the nearest Mistice of the peace to the polling-place. 
 On the morning of the day of the next succeeding election all the con- 
 tents are directed to be taken therefrom and publicly destroyed by the 
 election officers before the new election begins. The law requires the 
 election officers to take an oath for the performance of this duty (reg 
 istry, &c., acts, 1874, page 39, section 13, latter part). 
 
 The ballots and papers contained in the ballot-boxes must be de- 
 stroyed, unless required to be kept by an order of the court. (See above 
 act, ibid.} 
 
 During the taking of the testimony -in-chief in the case it was discov- 
 ered by both parties to this contest that the election officers had taken 
 the affidavits of non-registered voters as required by section 10 of the 
 registry act, but instead of returning them to the office of the prothou- 
 otary as required by law. they hud sealed them up in the ballot-boxes. 
 The spring elections being close at hand, and the contestee being anx- 
 ious to preserve the evidence of the regularity of the election, and for 
 the purpose of preserving the contents of the ballot-boxes for the pur- 
 s of this contest, filed his petition in the proper courts of the coun- 
 ties of Centre and Clearfield in January, 1879, praying an order to pre- 
 serve the contents of the ballot-boxes, that he might be able to serve a 
 subpoena rtfum- tccnm on the custodians thereof and make profert of the 
 contents. (See copy of petitions in Centre County, page 1451, vol. 2; 
 also order of court, page 1454, vol. 2. As to petition, &c., in Clearfield 
 County, filed January 25, 1879, see printed testimony of Bloom, page 
 H503, vol. 2.) The contestant, with full knowledge of what the ballot- 
 boxes contained, appeared by counsel in Clearfield County and resisted 
 the petition, and procured the court to deny the prayer thereof. (See 
 printed testimony, page 1603, vol. 2.) 
 
 The evidence f heretofore taken shows the following facts relative to 
 the contents of the ballot-boxes, namely: 
 
 In Benner Township. James Henderson swears that the affidavits 
 were put in the ballot-box. (Page 20, vol. 1.) 
 
 I n I loutzdale Borough, James S. Munii swears that the affidavits were 
 put in the ballot-box. (Page 530, vol. 1.) Same borough, McNamara 
 swears to the same thing, and that thev were destroyed at spring elec- 
 tion. (Page 1859, vol. 1.) 
 
 In Woodward Township, George YV. Quinn swears that affidavits 
 were taken from non-registered voters as required by law. and they 
 were put in the ballot-box. (Page 1873, vol. 1.) 
 
 In north ward, Bellefonte Borough. David Hartley swears that non- 
 registered voters were required to make the proper affidavits. They are 
 missing from the prothonotary's office. (Page 1283, vol. 1.) 
 
 In many other townships and boroughs the same facts appear, but 
 it would make this report too voluminous to cite them. 
 
 In the face of these facts, and knowing the necessity of preserving the 
 papers contained in the ballot-boxes, so that the truth might be ascer- 
 tained, what excuse can be urged for the contestant in resisting and 
 defeating their preservation 1 ? Did not his act compass their destruc- 
 tion? Is he not here asserting the illegality of this vote, and asking 
 the House to unseat the sitting member, when he himself was a party 
 to the destruction of the ven evidence which would have settled the, 
 question ? Does he not stand in the position of the spoliator of docu- 
 mentary evidence asking to take advantage of his own wrony ' How
 
 424 DIGEST OF ELECTION CASES. 
 
 can we say the result is left in doubt when the contestant himself con- 
 tributed largely thereto f We think it safe to stand on the elementary 
 rule that one asking- equity must do equity. 
 
 Referring to the point that because at certain polls and precincts 
 1,000 and more illegal votes were polled being illegal because they 
 were not registered, and no affidavits were filed as required by law 
 that therefore the vote at all of the other precincts must be set aside, is 
 a doctrine we cannot assent to. Admitting for the sake of argument 
 that those votes were illegal, we maintain that the true rule is. where 
 illegal votes have been cast, to purge the poll by first proving for whom 
 they were thrown, and thus preserve the true vote; if by the use of 
 due diligence this cannot be done, and the result is still left in doubt, 
 then to throw the poll out entirely. We think this is a safer rule to 
 maintain the purity of the ballot box than the other one, which appor- 
 tions the fraud between the parties. This rule ought to be applied in 
 all cases where the fraudulent vote is considerable and permeates 
 the whole poll, and not in cases where it is scattering and inconsidera- 
 ble. In those cases it may be justly inferred that the result would not 
 be affected by retaining the poll unpurged. The authorities cited by 
 the majority of the committee, and an almost unbroken line of author- 
 ities in Pennsylvania, support this view. 
 
 During the forty days which the contestant had for taking testimony 
 he could have introduced in evidence every ballot cast at the polls of 
 which complaint is made. He could, by an inspection of the contents of 
 the ballot-boxes, have ascertained whether the affidavits had been filed 
 as required by law ; by making a comparison between these and the 
 registry lists and the poll-list he could have ascertained the exact 
 truth ; and as each ballot was numbered, he could have ascertained for 
 whom each illegal vote was cast. He did not do this, but actually 
 aided in the destruction of all these paper.*, so that the contestee could 
 not show the true state of affairs. He cannot therefore be said to be 
 within the rule of having used due diligence to purge the polls of illegal 
 votes. He cannot bring himself within the McCrary rule of deducting 
 pro rata the illegal vote at each poll, for this would increase the returned 
 majority of contestee by many hundreds. He cannot insist on the true 
 rule we have laid down, for that would leave a large majority of polling 
 precincts throughout the Congressional district unchallenged, and would 
 increase the coutestee's majority to near GOO. 
 
 He is therefore driven to the last resort, that of asking that the elec- 
 tion be declared void because of the uncertainty of the result, as he 
 claims, in certain specified polling districts. This cannot be allowed, 
 according to my view, for the reasons stated. 
 
 If the rule contended for by contestant is adopted, we maintain it 
 must be applied to the polling precincts where contestant alleges the 
 fraud occurred. Then each party is left to prove his vote by calling the 
 voters in the rejected precincts. If they do not, they must stand on 
 th,e vote of the other unchallenged precincts, and cannot be heard to 
 complain of their own negligence. 
 
 To apply either of these rules, as we have seen, confirms the title of 
 contestee to his seat as a member of Congress from the twentieth Con- 
 gressional district of Pennsylvania to the Forty-sixth Congress. 
 
 We recommend the adoption of the following, viz : 
 
 Resolved, That Seth H. Yocum is entitled to retain his seat in the 
 Forty-sixth Congress as a member from the twentieth Congressional
 
 CURTIN VS. YOCUM. 425 
 
 district of the State of Pennsylvania, and that Andrew G. Curtin is not 
 entitled thereto. 
 
 W. H. CALKINS. 
 
 J. WARREN KEIFER. 
 
 J. B. WEAVER. 
 
 Mr. SPRINGER, from the Committee on Elections, submitted the fol- 
 lowing 
 
 R E PORT: 
 
 your committee, to whom was referred the contested-election case of Andrew 
 G. Curtin against Seth H. Yocum, from the ticentieth Congressional 
 district of Pennsylvania, having had the same wider consideration, beg 
 leave to report : 
 
 The committee have carefully examined the questions of law and of 
 fact involved in the case. The pleadings and evidence are very volumi- 
 nous, the printed testimony covering over 4,000 pages, and the notice 
 of contest, answer, and briefs of counsel about 200 more. The commit- 
 tee have been greatly aided in reaching a conclusion by the able and 
 exhaustive arguments of counsel for the parties and the briefs which 
 they have filed under the rules. 
 
 The votes, as returned by the canvassing officers of the district, show 
 that Mr. Yocum received 13,454 and Mr. Curtin 13,381 votes, giving Mr. 
 Yocum a majority of 73 votes, to which it is admitted 7 votes should be 
 added on account of a clerical error in the return from the west ward 
 of Mifflinburg, Union County, making his apparent majority, as shown 
 by the division returns, 80 votes. 
 
 Many intricate questions both of law and fact have entered into the 
 inquiry, alike in the taking of the evidence and in the arguments of 
 counsel, which would require a most laborious analysis of this diffused 
 and, in many instances, conflicting testimony, but for the one fact, ad- 
 mitted on both sides, that would rule the judgment of any dispassionate 
 tribunal. 
 
 The briefs and arguments of the opposing counsel agree in but one 
 point, but that is the vital one of the case. Taking it as presented on 
 either or both sides, it is shown that votes equal in number to many 
 times the official majority were illegally received, counted, and returned. 
 See appendix to contestant's brief, and list contained in that of the 
 sitting member, commencing on page 21 of Appendix C. In the former 
 a list of about 800 names (exclusive of Old Armagh and Union Townships, 
 Mifflin County) is given, which contestant asserts appear on the several 
 poll-lists therein cited without a corresponding registry, or the affidavits 
 required by law as an indispensable substitute in all such cases. 
 
 In answer to this the counsel for the sitting member claim that they 
 have reduced his number to 355 (see Appendix B of their brief, page 
 20), either by showing a registry reasonably approximating to the name 
 of the voter on the poll-list, or by citing testimony showing affirmatively 
 the possession of the constitutional qualification by such unregistered 
 voter. In reply, counsel for contestant show that many of these names 
 have no reasonable correspondence with the registry claimed for them; 
 that in about fifty instances the registry sought to be appropriated be-
 
 426 DIGEST OF ELECTION CASES. 
 
 longs in fact to another person, and who actually voted upon it him- 
 self; and that in over fifty other cases the single remark " voted on 
 age? without reference to testimony or other evidence of qualification, 
 is the only reason given for taking them out of the list. Your commit- 
 tee, after a careful comparison, are of opinion that Appendix B of con- 
 testee's brief, in connection with the poll-lists cited, shows on its face 
 over 500 unregistered votes in the election divisions attacked by con- 
 testant remaining unexplained, unaccounted for, and unqualified by 
 any evidence to which we have been referred. 
 
 The sitting member next gives us in his brief another appendix, C, 
 headed " List of unregistered votes in districts giving contestant a ma- 
 jority," in which his counsel undertake to show there were received, 
 counted, and returned in these other divisions 1,848 unregistered votes, 
 without referring to a particle of evidence to show for whom they were 
 cast. In the argument the learned counsel for Mr. Yocum conceded 
 that the number on this list really unregistered was probably not above 
 1,200, which their opponents claim (and on examination we find them 
 sustained) ; that names upon the registry lists in question reasonably 
 corresponding to these assailed reduce the actual number to about 400, 
 making the number of unregistered votes received, counted, and re- 
 turned in the entire district, without any evidence on either side to 
 show either for whom they were cast or that they possessed the consti- 
 tutional requisites, in the neighborhood of 900 votes, or ten times the 
 certified majority of the sitting member. 
 
 We now come to examine the constitution and statute of Pennsyl- 
 vania, so far as they relate to suffrage and elections : 
 
 '. oii-iiitution of 1873. 
 ARTICLE VIII. SUFFRAGE AND ELECTIONS. 
 
 SECTION 1. Every male citizen twenty-one years of age possessing the following 
 qualifications shall be entitled to vote at all elections: 
 
 First. He shall have beeu a citizen of the United States at least one month. 
 
 Second. He shall have resided in the State one year (or if, having previously been a 
 qualified elector or native-born citizen of the State, he shall have removed therefrom 
 aud returned, then six months) immediately preceding the election. 
 
 Third. He shall have resided in the election district where he shall oft'er to \ 
 least two months immediately preceding the election. 
 
 Fourth. If twenty-two years of age or upwards, he shall have paid withiu two years 
 a State or county tax, which shall have been assessed at least two mouths and paid at 
 least one month before the election. 
 
 SEC. 2. The general election shall be held annually on the Tuesday next following 
 the first Monday of November, but the general assembly may by law tix a different 
 day, two-thirds of all the members of each house consenting thereto. 
 
 SEC. 3. All elections for city, ward, borough, and township officers, for regular terms 
 of service, shall be hold on the third Tuesday of February. 
 
 SEC. 4. All elections by the citizens sha'l be by ballot. Every ballot voted shall be 
 numbered in the order in which it shall be received, and the number recorded by the 
 election officers on the list of voters, opposite tin- name of the elector who presents 
 the ballot. Auy elector may write his name upon his ticket, or cause the same to be 
 written thereon and attested by a citizen of the district. The election officers shall be 
 sworn or affirmed not to disclose how any elector shall have voted unless required to 
 do so as witnesses in a judicial proceeding. 
 
 SEC. 7 [of the above article 8]. All laws regulating the holding of elections by the 
 citizens or for the registration of electors shall be uniform throughout the State, bnt 
 no elector shall be deprived of the privilege of voting by reason of his na mt no* being 
 registered.
 
 CURTIN \\S. YOCUM. 427 
 
 STATI; r.mr :>KO\!SMN-. 
 
 1 further *upi>h'ment to th? act . .'lection* in </). 
 
 (See Pamphlet Laws 1874, page 33.) 
 
 1 and '2 direct the mod-- and manner of making and returning the registry 
 -,md assessment of electors. 
 
 SEC. 3. After the assessments have ;>e-en completed on the sixty-first day before the 
 Tuesday next following the first Monday of November in each year, the asscssorshall 
 on the following day make a return to the county commissioners of the names of all 
 persons assessed by him since the return required to he made by hin: by the first section 
 of this act, noting opposite each name the, observations and explanations required to be 
 noted ;;> aforesaid: and tlie county commissioners shall thereupon cause t" 
 be added to the return required by the lirst .>cc;ion of this act, and :i full and -'orrect 
 copy thereof to be made containinir tlie names of all persons so returned ;is resident 
 taxable* in said election district, and furnish the same, together with tlie necessary 
 election blanks, to the oflh TS of the election in such elect ion district on or before seven 
 o'clock on the morning of the election ; and no man shall be permitted to vote at the 
 election on that day whose name K nor <>n said list, unless he shall make proof of his 
 right to vote as hereinafter required. 
 
 C. 10. On the day of election air. pe; -on <. hose name shall nor a;>]>ear on the 
 registry of voters, and who claims the right to vote at said election, shall produce at 
 one qualified voter of the district as a witness to the residence of the claimant in 
 the district in which he claims to be a voter for a period of at least two months imme- 
 diately preceding said election, which witness shall be sworn or affirmed and subscribe 
 a written or partly written and partly printed affidavit to the facts stated by him, 
 Avhich affidavit shall define clearly where the residence isof the person so claiming to 
 be a voter; and the person so claiming the right to vote shall also take and subscribe 
 ;v written or partly written and partly printed affidavit stating, to the best of his 
 knowledge and belief, when and w here he was born : that he has been a citizen of the 
 Unite.' 1 States for ono month, and of the Common wealth of Pennsylvania; that he has 
 resided in the commonwealth one >ear. or, if formerly a qualified elector or a native- 
 horn citizen thereof, and has removed therefrom and returned, that he has resided 
 therein six months next preceding said election; that he has resided in the district in 
 which lie claims to be a voter for the period of at least two montlis immediately pre- 
 ceding said flection : that he has not moved into the district for the purpose of vot- 
 : herein: that he has, if twenty-two years of age or upwards, paid a, State or 
 -county tax within two years, which w. ! at least two months and paid at 
 
 least one month before the election. The said affidavit shall also state, when and where 
 the tax claimed to be paid by the affiant was assessed, and when and where and to 
 whom paid : and the tax receipt therefor shall be produced for examination, unless 
 the affiant shall state in his affidavit that it has been lost or destioyed, or that he 
 iieverreeeived any:andifa naturalized citizen, shall alsostate when, and where, by what 
 court he was naturalized, and shall also produce his certificate of naturalization for 
 examination. Hut if the person so claiming the right to vote shall take and subscribe 
 an affidavit that lie is a native-born citizen of the United States, or, if born elsewhere, 
 shall .state the fact in his affidavit, and shall produce evidence that he has been nat- 
 uralized or that he is entitled to citizenship by reason of his fa'her's naturalization, 
 and shall further state in his affidavit that ho is, at the time of making the affidavit, 
 of the age of twenty-one and under twenty-two years; that he has been a citizen of 
 the United States one month, and has resided in the State one year; or, if a native- 
 born citizen of the State and removed therefrom and returned, that he has resided 
 therein six months next preceding said election, and in the election district two 
 Months immediately preceding such election, he shall be entitled to vote although 
 he shall not have paid taxes. The said affidavits of all persons making such claims, 
 and the affidavits of the witnesses to their residence, shall be preserved by the election 
 board, and at the close of the election they shall be inclosed with the list of v- 
 tally-list, and other papers required by law to be filed by the return judge with the 
 prothonotary. and shall remain on tile therewith in the prothonotary ; s office, sir 
 :o examination as other election papers are. If th- election officers shall find that 
 the applicant possesses all the legal qualification* of a voter he shall be permitted to 
 Ote, and his name shall be added to the. list of taxables by the election-officers, the 
 word -'tax "being added where the claimant claims to vote on tax and the word 
 'age" where he claims to vote on age; the same, words being added by the clerks in 
 each ca>e, respectively, on the lists of persons voting at such election. 
 
 SKC. \'. If any election officer sh ili refuse or m-glect to require such proof of the 
 light of suffrage as is prescribed by this law, or the laws to which this is a sup, dement, 
 from any person offering to \ name is not on the list of assessed voters, or
 
 428 DIGEST OF ELECTION CASES. 
 
 whose right to vote is challenged by any qualified voter present, and shall admit such 
 person to vote without requiring such proof, every person so otteudiug shall, upon con- 
 viction, be guilty of a misdemeanor, and shall be seuti-need for every such onene 
 pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not 
 more than one year, or both, at- the discretion of the court. 
 
 SEC. 13. * * * Whenever a place has beeu or shall be provided by tin.- authori- 
 ties of any city, county, township, 01 borough for the safe-keeping of the ballot-boxes, 
 the judge and minority inspector shall, after the election shall bo finished, and the 
 ballot box or boxes containing the tickets, list of voters, and other papers have been 
 securely bound with tape and sealed, and the signatures of th ^ -judge and inspectors 
 affixed thereto, forthwith deliver the same, together with the remaining boxes, to the 
 mayor and recorder of snch city, or in counties, townships, or boroughs to such per- 
 son or persons as the court of common pleas of the proper county may design.v 
 the place provided as aforesaid, who shall then deposit the said boxt s and keep the 
 same to answer the call of any court or tribunal authorized to try the merits of such 
 election. Whenever the election officers of any election district shall require the elec- 
 tion boxes of such district to hold any election which by law they are or shall be 
 required to hold, they shall keep th- same securely in their po>-<.->sion without open- 
 ing, until the morning of such election, and until they shall severally be sworn or 
 affirmed not to disclose how any elector shall have voted, and after being so sworn or 
 affirmed they shall open the said boxes and burn and totally destroy all the ballots 
 and other papers which they shall find therein, before proceeding to hold such election. 
 
 The evident object of the law-making power of Pennsylvania in the 
 passage of the foregoing statute was this : Such had been the looseness 
 theretofore in receiving parol evidence us to the right of persons to vote 
 on the day of election, and such was the difficulty of indicting persons 
 for perjury on such parol evidence, that it was deemed necessary to 
 provide by law that the proof of an elector's right to vote should no 
 longer rest on parol evidence, but that the voter, in order to estab- 
 lish by competent evidence his right to vote, should file a written or 
 printed affidavit of himself as to his qualifications, and also the written 
 or printed affidavit of another qualified voter of the same election dis- 
 trict as to his residence in the precinct for two mouths immediately pre- 
 ceding the election. 
 
 The authorities are uniform to the effect that all statutes are manda- 
 tory which cannot be disregarded without ignoring the legislative in- 
 tent. The will of the legislature cannot be carried out unless this pro- 
 vision of the statute is complied with, and to disregard it is to disregard 
 one of the safeguards which the law-making power of Pennsylvania 
 deemed necessary for the protection of the ballot. 
 
 It is contended by counsel for the sitting member that the require- 
 ments of sections 3 and 10 above set forth are merely directory, and 
 a disregard of them does not invalidate the vote cast without compli- 
 ance with its provisions. But your committee cannot agree to this 
 view of the law. The true line of distinction as to whether a statutory 
 provision is mandatory or merely directory in its nature is laid down 
 in Smith on Statutes and other well-known authorities : 
 
 It is to be presumed that the legislature intended to make such acts imperative in 
 all cases where the object aimed at could not be attained unless the act should be con- 
 strued as imperative. (Smith on Statutes, sec. GSO, p. 795.) 
 
 By directory provisions is meant such as are to be considered as giving dimltou--; 
 which ought to be followed, but not as so limiting the power in respect to which the d '- 
 rectious are given that it cannot be effectually exercised without observing them. 
 (Cooley on Const. Limitations, 74.) 
 
 statutory requisitions are deemed directory only when they relate to SOUK- intmateriat 
 matter, where a compliance is a matter of convenience rather than of si, l. stance. 
 (People vs. Schoemerhorn, 19 Barb.. 
 
 We find no Pennsylvania decisions on this point since the adoption 
 of the new constitution, and the consequent modification of the laws 
 regulating the suffrages, in 1874 ; but Judge Allison, a jurist of conceded 
 ability and experience, in disposing of the Philadelphia rontested-elec-
 
 CURTIN VS. YOCUM. 429 
 
 tion cases of 
 
 oial construction upon 
 
 f 1867 (reported in 1st Brewster. 171, et seq.), places a judi- 
 
 - -. ^tion upon the law of 1839, tbeu in. force in Pennsylvania; 
 
 and for the purpose of ascertaining how far the ruling in that case would 
 apply to the corresponding provisions of the act now under considera- 
 tion we place them side by side : 
 
 Act of 1839, se<: 65, A<:t of 1874, sec. 3, 
 
 No person shall he, admitted to vote * No man shall be permitted to vote 
 
 -whose name is not contained in the list of at the election on that day wlio.se name is 
 taxable inhabitants furnished by the coin- not on said list unless he shall make proof 
 missioner aforesaid, unless. A.C. (Brightly, ] of his right to vote as hereinafter required. 
 Digest, vol. 1. pages 548, 549. pi. 43.) : (Pamphlet laws of Pennsylvania for 1874, 
 
 page 33.) 
 
 * * 
 
 Sj;c. .)(}. In all cases when the name of r SEC. 10. On the day of election any per- 
 the person claiming to vote is nor found sou whose name shall not appear on the 
 
 on the list furnished by the county corn- 
 
 registry of voters, and who claims the 
 
 miaaionen and assessor, or his right to right to vote at .said election, shall produce 
 vote, whether found therein or nor, is at least one qualified voter of the district as 
 objected to by any qualified citizen, it a icitnens to the residence of the claimant 
 
 shall be the duty of the inspector To ex- 
 amine such person on oath as to his qual- 
 ification, and if he claims to have resided 
 within the State for one year or more, his 
 oath shall be sufficient proof thereof, but 
 he shall make proof by at leant one competent 
 witnt't-x, who shall be a qualified elector, 
 that he has resided within the district for 
 more than 10 days next immediately pre- 
 
 iu the district in which he claims to be a 
 voter, which witness shall be sworn or 
 affirmed and subscribe a written or 
 partly written and partly printed affida- 
 vit to the facts stated by' him. which affi- 
 davit shall define clearly where the resi- 
 dence is of the person so claiming to be a 
 voter ; and the person so claiming the 
 right to vote shall also take and subscribe 
 
 ceding said election, and shall also him- | a written and partly printed affidavit, 
 self swear that his bona Jidf residence in stating, &c. (the possession of the consti- 
 
 tutional requisites in regard to age, citi- 
 zenship, residence, and payment of tax >. 
 (Ibid, 35.) 
 
 pursuance of his lawful calling is within 
 the district, and that he did not remove 
 into said district for the purpose of voting 
 therein. (Same, page 589, see. 66, page 44.J 
 
 These req uirements " [referring to the act of 1839], says Judge Allison (1 Brewster, 
 174), " are in no proper sense directory merely; they are, in all particulars in which the 
 law directs that they shall be ascertained before the vote shall be received, absolutely essen- 
 tial to a due election.'' 
 
 'As to one class of voters, the law makes the assessment list furnished to the elec- 
 tion officers prima facie evidence, but prima facie only of their right to vote. As to all 
 others claiming the right, THE LAW'S DIRECTION is IMPERATIVE: no person shall be 
 permitted to vote whose name is not on the list of taxable inhabitants furnished by the city 
 commissioners, unless he make the proof to which we have referred." 
 
 **** 
 
 Judge King, in the Kneass case, remarks of this class of voters : 
 
 The language of this law is so clear, and the policy of it so obvious, that it admits 
 of no construction qualifying its letter as respects persons not found on the list. It is 
 from votes ottered by this class of persons that the greatest dauger of election frauds 
 arises. * * * A rigid and faithful execution of this part of the election law is absolutely 
 indispensable to a fair election. (2 Parsons, 580.) 
 
 Let it be remembered that the statutory provision immediately in 
 question is the one which occurs at the close of the third section of the 
 act of 1874, enacted to give effect to the additional checks and safe- 
 guards which the people of Pennsylvania manifestly intended to throw 
 around the ballot-box by their amended constitution, then just adopted 
 by an unprecedented majority. The clause in question is in these words : 
 * * * "And no man shall be permitted to vote at the election on 
 that day whose name is not on said list, unless he shall make proof of 
 his right to vote as hereinafter required." That is, according to the 
 requirements of section 10 of same act, which section is hereinbefore 
 quoted in full.
 
 430 DIGEST OF ELECTION CASES. 
 
 Now, with all due respect for those who (lifter with us, we submit 
 there can be no directory provisions in a statute in regard to that which 
 the statute itself forbids being done at all. 
 
 Construction can never abrogate the text ; * 'it ran never fritter away it* 
 
 obviors sense ; * * it can never narrow down its broad limitations; * * ic 
 
 can never enlarge its natural boundaries. ; Story on Constitution, section 407.) 
 
 The right rule of construction is to intend the legislature to have meant what they 
 have actually expressed, unless some manifest incongruity would result from doing so, or 
 unless the context clearly ahoics that such a construction would not be the right oiie_ 
 (Jackson t. Lewis, 17 Johnson, 475.) 
 
 The result of all the authorities is that all constitutional provisions in 
 statutes defining what the voter himself must do, both as to qualifying him- 
 self as an elector and furnishing the quality and quantity of evidence 
 thereof which the law demands, is mandatory, jurisdictional, and in the 
 nature of conditions precedent, while those which merely relate to the 
 conduct of the election officers may or may not be directory according as 
 they may or may not appear to affect results, and according as they may 
 or may not seem, to have been regarded by the law-making power as es- 
 sential and necessary safeguards against the mischief the statute was 
 intended to prevent. Thus in Morris vs. Haines (2 N. H., 246), where 
 the statute required State officers to be chosen by a check-list, and by- 
 delivery of the ballots to the moderator in person ; and it was held that 
 the requirement of a check-list was mandatory, and the election in the 
 town was void if none was kept. The decision was put upon the ground 
 that the check-list was provided as an important guard against indis- 
 criminate and illegal voting, and the votes given by ballot without this 
 protection were therefore as much void as if given viva voce. 
 
 The following is the concluding portion of the opinion : 
 
 If at an election of Representative the check-list be flung aside and votes are in- 
 discriminately crowded into the ballot-box without an inspection by the moderator, 
 it must be obvious to all observing citizens that every evil which the statute was de- 
 signed to remedy is likely to happen, and that two prominent provisions of it will be 
 trampled under foot. Votes so given and received are neither given nor received in 
 conformity to the essential requisitions of the statute, and such requisitions being 
 violated, the votes must be void They would be no more void if given viva voce rather 
 than by ballot. If such a neglect of the statute will not render the whole proceed- 
 ings void, what neglect will have that operation ? The whole balloting, therefore, 
 in this manner is vitiated. No Representative can thus be duly elected. 
 
 Wheelock's case (1 Norris, 299), cited by counsel for the sitting mem- 
 ber, is not, when carefully examined, in conflict with the other author- 
 ities heretofore referred to. In that case the voters appear to have been 
 regularly registered and the registry duly filed in the place designated 
 by law. The electors by getting themselves placed on it had primtt, 
 facie done all that the law demanded of them. They had furnished all 
 the proofs of their right to vote required by the statute until that right 
 was challenged by a " qualified citizen of the district." They were in 
 no respect in default. But the county commissioners had neglected to 
 furnish the election officers with a certified copy of the registry duly 
 filed in their office, as the law required them to do, and it was not al- 
 leged in the case that challenges were made or disregarded. 
 
 What distinguishes this case from those relied upon by the contest- 
 ant's counsel is the all-important and controlling fact that in the latter 
 the voters themselves were in default, while in the former it was the 
 county commissioners. It is the clearest misapprehension of this case 
 to apply what is there said in reference to the effect of omissions or mis- 
 takes of officers in preparing and supplying election papers to the case 
 of voters who fail to furnish the evidence of their right to participate in 
 the choice of public servants required by the statute as an indispensa-
 
 CURTIN VS. YOCUM. 431 
 
 ble substitute for registration. What IN said by Judge Allison in the 
 Philadelphia election eases of 1807, hereinbefore cited, ;md to be found 
 in 1 Brewster, pages 171, 172. is peculiarly applicable to this phase of 
 the question : 
 
 The elector's privilege, is not a mere constitutional abstraction, hut it i.s to be exer- 
 cised in subordination to law, and on proof of title of the person claiming its exercise. 
 The right, however \vei; founded in fact, may be lost for want .of *c/( cridencr of lltlt 
 as the laiv demands, jus! as the possession and enjoyment of property, secured by the 
 declaration of rights to the citizen, maybe taken 'a. way or withheld from him for thf 
 want of tlic necesnari/ eridetice of ownership. 
 
 It is to enable the honest voter to secure to himself his constitutional privilege, to 
 protect him against its loss by fraud, mistake, or negligence on the part of others, that 
 laws have been passed providing for an examination into the result of an election at 
 the instance of qualified voters who have reason to believe that an undue election had 
 been held. 
 
 This legislation is therefore not to be regarded as hostile to the exercise of a right 
 conferred upon the citizen by the supreme law of the land, but, on the contrary, as an 
 aid of and a protection to it. The design is to prevent its being nullified by illegal 
 or fraudulent votes. 
 
 The vote of an elector may be as certainly lost to him by an illegal ballot going in 
 with it as though he had been prevented by force from voting or his right unlawfully- 
 denied to him at the polls. 
 
 The case of Doerflinger vs. Hilmantel (21 Wisconsin, 566) is precisely 
 in point. The statute of Wisconsin is as follows : 
 
 No vote shall be received at any annual election in this State unless the name of the 
 person offering to vote be on the registry made on the Tuesday or Wednesday preced- 
 ing the election, unless the person offering to vote shall furnish to the board of in- 
 spectors his affidavit, in writing, giving his reasons for not appearing on the day for 
 correcting the alphabetical list, and prove by the oath of a householder of the district 
 in which he offers his vote that he knows such person to be an inhabitant of the dis- 
 trict, aud, if in any incorporated city or village, giving the residence of such person 
 within said district. (Sec. 7. eh. 445, Laws of 1864.) 
 
 Iii the case of Doerfliuger vs. Hilmantel it appeared that over 500 
 votes were received in Milwaukee from persons whose names were not 
 on the register, no one of whom gave to the inspectors receiving his 
 vote his residence within the district, either by his own affidavit or by 
 the oath of a householder of such district. The court, by Chief Justice 
 Dixon, the entire court concurring, said : 
 
 It is furthermore alleged that of those 544 votes 145 were received from persons no 
 one of whom proved to the inspectors receiving his vote by the oath of a householder 
 of tke district that he knew such person to be an inhabitant of the district, nor did 
 any one of them furnish the inspectors any proof upon oath that he was a resident of 
 the election district. It will be seen from these statements, not that then; was a total 
 want of proof or an attempt to evade the requirements of the act, but only that the 
 proofs were in some particulars defective. It is not, therefore, a question whether 
 the statute may be wholly disregarded or dispensed with by the inspectors, but whether 
 when an attempt is made in good faith to executeit a mistake in the execution or any 
 departure, however slight, from the terms of the statute will vitiate the proceedings 
 and annul the votes so it regularly received. In other words, it is a question whether 
 the voters are disfranchised by any such mere irregularity or error in the proceedings. 
 This is the precise question, as I understand it. I say the precise question, because no 
 fraud or intentional misconduct on the part of any one is alleged, nor is it alleged 
 that there was any inherent disqualification in the persons who gave the votes. They 
 were qualified electors of the district, entitled under the constitution and laws to vote 
 at the election, except that their votes were not received in the form prescribed by the 
 statute. As to one hundred and forty-five of them, the fact that they were inhabitants 
 of the district was not proved before the inspectors; and as to the others, their par- 
 ticular places of residence within the district were not given. As to all of them, 
 the inspectors may have acted upon their own knowledge of the facts, and thought 
 that proof was unnecessary. Such beingthe technical, and, as it seemed to me. purely 
 formal, nature of the objections. I must say that I was surprised to hear counsel at the 
 bar insist that those votes must now be rejected. I had not then examined the act, 
 and it was contrary to all my notions of the intention and effect of election laws, de- 
 ' rived from the decisions of this and other courts upon other statutes on the sanx
 
 432 DIGEST OF ELECTION CASES. 
 
 ject. I supposed the question before the courts alway-s wa.s, who received the greatest 
 number of votes for the office from the legally qualified voters, without regard to any 
 matter of mere form or want of form in the receiving, canvassing, or return of the 
 votes; and that to hold the contrary would be, as has been very pertinently said, to 
 place a higher value on the statute regulation than on the right itself to sacrifice 
 substance to form. This construction of former statutes, that they were directory 
 and not imperative, and therefore not jnrisdictional on the part of the officers conduct- 
 ing the elections, is well known. For the sake of justice upon the facts here pleaded 
 I regret that this 'act does not admit, of the same construction. It seems certainly a 
 very severe regulation -which excludes the votes of legally qualified voters under such 
 circumstances. But on examining the act I arn satisfied that it cannot be so con- 
 strued. It is essentially an imperative statute, and deprives the inspectors of all juris- 
 diction to receive the votes of unregistered voters, unless the conditions as to the 
 affidavit and oath are fully complied with. And first it is to be observed that 
 there is a material difference between this and former stanites. They were regula- 
 tions of the time and manner of conducting elections, designed for the government 
 of the officers having charge of the polls. No duty was imposed upon the voters 
 except that of going to the polls and depositing their votes. Ir was considered that 
 the voters ought not to forfeit their privileges or lose their votes by reason of the mis- 
 takes or misconduct of the officers, which it was out of t he power of the voters to rem- 
 edy or prevent. By this act, however, every voter is made or may become an agent in 
 the execution of the law. Copies of the register as made by the board are tiled in the 
 office of the town, village, or city clerk, and posted in some conspicuous place iu the 
 room iu w r hich the meeting is held, so as to be accessible to any elector who may desire 
 to examine the same or make copies thereof. On Tuesday preceding the general elec- 
 tion a meeting of the board of registry is held at the place designated for holding the 
 polls of election, for the purpose of revising, correcting, and completing the lists. Any 
 elector of the district whose name has been omitted may appear at such meeting and 
 cause the same to be entered upon the register. If he' does not so appear, and still 
 desires to vote, he must furnish the inspectors at the polls his affidavit, giving his 
 reasons for not appearing on the day for the correction of the register, and likewise 
 prove by the oath of a householder of the district that he knows him to be an inhab- 
 itant of the district, and, if iu an incorporated village or city, give his residence within 
 the district. In this matter of a voter whose name has been omitted, and who has not 
 appeared on the day for the correction of the register, the burden of answering the 
 requirements of the law by furnishing the affidavit and proof is thrown upon the voter 
 himself. He is presumed to know the law, and must go to the polls prepared to comply 
 with its conditions; and if he does not, and his vote is lost, it may, so far as it is the 
 fault of any one, with justice be said to be his own fault. It is in the nature of a pen- 
 alty imposed by the law for his neglect to do what is required of him. The. inspectors 
 cannot receive his vote, and, if they cannot, it cannot afterward* be received and counted 
 by the courts. 
 
 And next it is to be observed that it is a negative statute. It has been said on very 
 high authority that negative words will make a statute imperative. (D warris ou Stat- 
 utes, 715; 7 Law Lib., 55, and cases cited.) The words of the act are: "No vote shall 
 be received at any annual election in this State unless," &c. It is difficult to conceive 
 language more strongly imperative than this. (21 Wisconsin, pages f><>H-y-?4>-71.) 
 
 In the Philadelphia "Locust ward case," where the polls had been 
 kept open and votes received after the hour prescribed by the statute, 
 Judge Parsons (another eminent Pennsylvania jurist, wholias been in- 
 dorsed in the hightest terms by the counsel on both sides of this case in 
 the course of their arguments), after showing that the direction to close 
 the polls at 10 p. m. was imperative, closes an able and exhaustive opin- 
 ion, in which the whole court, then consisting of five law judges, con- 
 curred (having previously distinguished the case then before the court 
 from one where the number of votes thus illegally received, counted, 
 and returned was clearly ascertained to be less than the certified major- 
 ity), as follows : 
 
 But where the majority for the candidate is small, and the evidence of such a char- 
 acter as to render it uncertain as to the number of votes polled after the hour when 
 the election should have been closed, when there is imprecision as to the true state of 
 the case and the result rendered thereby uncertain, and it is thereby rendered doubtful 
 who has a majority of the votes.polled within the time prescribed by law, then in such 
 a case, it is unquestionably our duty to set the election aside, and refer the election back 
 to the people. In alt thexe principles the whole court fully concur, and. we settle it as th> 
 o far as our judgment makes it certain."
 
 CTRTIN I'M. 433 
 
 175, &c. ; 
 Wheelock's 
 the sitting 
 
 member on account of haying been subsequent to the adoption of the 
 new constitution of Pennsylvania, is in full accord on this point with 
 the earlier eases We quote: 
 
 Wht-!i, however, it is allrjvd that tin-re is actual fraud ill the election, or that the 
 ballot-box has been tampered with, or iUefjui ,ced, or tl- <r fraudu- 
 
 lent ai is t.r' the ofiic /-frf the ballots, the duly of the court ia 
 
 equally ]: hoald be a (!: and when 
 
 the." and uleut ;md irregular that the ,t be ascertained, 
 
 then the entire poll is rejected. 
 
 The contestant alleges, independently of the non-registered vote, that 
 he has proven 1*40 illegal votes to have been cast for the sitting 1 mem- 
 ber and admits that (51 have been shown to have been rei-eivcd by him- 
 self, which would elect him by ;>!> majority, provided the remaining v 
 returned for him after deducting these 01 were all cast b\ duly qnaltted 
 voters, which lie does not claim to have shown by legal evidei;. 
 
 On the other hand, the sitting member admits that ~i> illegal vt 
 were proven to have been received by him, not considering the non- 
 registered vote, but claims that he has shown by competent evidence 
 that .'5-8 illegal votes were cast tor his opponent, which would make his 
 majority ,'>79, provided the vof s remaining after deducting these 29 
 were all cast by duly qualified voters, which he on his part does not 
 claim to have shown by any evidence in the case. 
 
 But when we take into consideration the number of non-registered 
 votes, or the votes east by persons whose names do not appear upon the 
 registry list, and who did not furnish the proof of right to vote re- 
 quired by the statute, which by the coutestee's brief, Appendix B, ap- 
 pear to be over 500, we cannot concede either the contestant's claim of 
 99 majority or the contestce's claim of 379 majority of the legal votes 
 cast, for the reason that, conceding all the eontestee claims, yet we 
 must determine what disposition shall be made of the non-registered 
 vote, which is much greater than the majority claimed by the sitting 
 member. 
 
 It is contended by contestee's counsel that the contestant failed to 
 use due diligence in this, that he did not cause the ballots to be pro- 
 duced, and thus show for whom the non-registered electors voted, and 
 that contestant's resistance, through his counsel, to the legal proceed - 
 institnted by eontestee for the production of the ballots was evi- 
 dence of his well grounded fears that the facts when disclosed might 
 show that he was not elected. 
 
 These objections to contestant's right to the seat would have been 
 well taken were it not for the fact that the 4,000 printed pages of evi- 
 dence in this case >iiow most extraordinary diligence on the contest- 
 ant's part to account for and explain every alleged illegal voter, and 
 1,100 pages, comprised in part i. are almost exclusively devoted to evi- 
 dence taken to explain tor whom the non-registered persons cast their 
 ballots. But notwithstanding the immense mass of testimony taken, it 
 appears that the great number of voters in question rendered it impos- 
 sible within the time prescribed by law for taking testimony to explain 
 for whom all the non-registered persons voted. Whenever it was pos- 
 sible to explain for whom non-registered persons voted such explana- 
 tion has been given, and the voter when found to be duly qualified has 
 been taken from the non-registered list, and such list still remaining re- 
 H. Mis. 58 L'S
 
 434 DIGEST OF ELECTION CASES. 
 
 lates to those in whose cases no evidence appears explaining how they 
 cast their votes. It is true that the record fails to disclose for whom 
 these persons voted, and if the failure is to be charged to any one, the 
 contestee is equally at fault with the contestant. They are, therefore, 
 both in such default that neither has the right to claim the seat when 
 it appears that there are illegal votes in the returns unaccounted for 
 which are greater in number than the returned majority of the sitting 
 member. The people of the district have rights which cannot be con- 
 promised by any failure, whether avoidable or unavoidable, either of the 
 contestant or the contestee. They have the right to be represented by 
 the person, and no other, who has received a majority of the legal votes 
 of the district. 
 
 It having been determined that a large number of persons voted at 
 the election who did not comply with the statute as to the proof of 
 their right to vote, and the number of such ballots cast being largely 
 in excess of both the returned majority of the sitting member or the 
 revised majority which he claims in his briefs, and the evidence not 
 showing for whom such votes were cast, we must determine upon what 
 rule the polls must be purged of such illegal non-registered votes. 
 McCrary, in his Treatise on Elections, section 300, page 225, lays down 
 the following rule: 
 
 It would seem, therefore, that in a case where the number of bad votes proven is 
 sufficient to affect r he result, and in the absence of any evidence to enable the court 
 to determine for whom they were cast, the court must decide upon one of the three 
 following alternatives, viz: 
 
 1. Declare the election void. 
 
 2. Divide the illegal votes between the candidates in proportion to the whole vote 
 of each. 
 
 3. Deduct the illegal vote from the candidate having the highest vote. 
 
 And it is clear also that where in such a case no great public inconvenience would 
 result from declaring the election void and seeking a decision by an appeal to the 
 electors, that course should be adopted. 
 
 It will be seen from all the authorities that where a new election can. 
 be held without injury it is the safest and most equitable rule to de- 
 clare the election void and refer the question again to the people in all 
 cases where there are a greater number of illegal votes proven, but for 
 whom they voted does not appear, than the returned majority of the in- 
 cumbent. In this case, it appearing that a number of votes many times 
 greater than the official majority of the sitting member were illegally 
 received, counted, and returned, in violation of the constitution and 
 mandatory statutes of Pennsylvania which were adopted for the pur- 
 pose of securing the purity of the ballot-box and preventing frauds at 
 elections, and the true result of the election by the legal voters of the 
 district has not heretofore been ascertained, and cannot, from the na- 
 ture of the case, be ascertained upon the facts presented in the record, 
 your committee recommend that the election be declared void, iu order 
 that the people of the twentieth Congressional district of Pennsylvania 
 may have an opportunity of again expressing their choice for a Repre- 
 sentative in Congress. Your committee therefore recommend the adop- 
 tion of the following resolution: 
 
 Resolved, That the election held in the twentieth Congressipnal district 
 of Pennsylvania in November, 1878, for a member of this House, be, 
 and the same is hereby, declared null and void, and the seat now occu-
 
 cui;. i OCTAL 
 
 pied by Setli H. Yocutn declared vacant until filled by the people of 
 said district in conformity with law. 
 All of which is respectfnllv .submitted. 
 
 WILLIAM M. SPUIXGEIJ. 
 
 VAN II. MANNING. 
 
 ALVAH A. CLARK. 
 
 EMORY SPEER. 
 
 W. <;. rOLERICK. 
 
 II. F. ARM FIELD. 
 
 F. E. BELTZ HOOVER, 
 I TEL L. SAWYER. 
 
 T.S or THE U.\IH : MEML. > OMMITTEK OX 
 
 TK>.\s 7.V nih < -n.\j. :KCTIo\ CUBTIN V. YOCUM. 
 
 The undersigned have not been able to read all the testimony in this 
 case: they were not on the subcommittee to whom it was referred, and 
 from whom it was reported to the full committee as depending upon 
 questions of law arising from facts said to be undisputed by both par- 
 ties. To the general reasoning of the report of the minority of the com- 
 mitte.- we assent. We think, however, that the registry law of I<s7 
 a valid law under the constitution of 1873. We think also that the re- 
 quirements in that law of affidavits from persons not on the registry list 
 in order to enable them to vote are mandatory, and that the require- 
 ments for the return of papers, affidavits. &e.. are directory ; that as it is 
 made a crime on the part of the election officers to permit a non-regis- 
 tered person to vote without requiring the legal proof of qualifications, 
 the strong presumption is, in the absence of evidence, that such ofli> 
 have properly performed their duties in that respect. The law of Penn- 
 sylvania requires that the elections be held by one judge and two 
 inspectors, and that on petition of five or more citizens two over- 
 seers of election of different political parties be appointed. These 
 the election officers. Kach inspector appoints a clerk. After the ele<-- 
 tion is finished, the ballot-boxes containing "the tickets, list of vo:> 
 and other papers," securely sealed, must be delivered to the mayor and 
 recorder of cities, and in counties, townships, and boroughs to such person 
 as the court of common pleas may appoint at a place provided, whenever 
 the authorities of such city, county, township, or borough have provided a 
 place therefor, who shall "keep the same to answer the call of any court 
 or tribunal authorized to try the merits of such election.*' If no such per- 
 son is appointed, then we understand that they must be delivered to tin- 
 nearest justice of the pt-ace. The affidavits of non-registered voters 
 required to be tiled by the return judge with the prothonotary, to remain 
 on tile in hi- examination as other election papers an 
 
 The officers of election at the close of the ]K>lls count the vo 1 
 make triplicate returns, with a return sheet in addition; declare 
 publicly the votes, and p>t up the same on the door of the election 
 house. The triplicate returns are inclosed each in an envelope and 
 sealed, and one envelope, with the unsealed return sheet, containing also 
 one list of voters, tally-papers. ,N;C.. is given to the judge, and another 
 to the minority inspector. These judges, who are the judges of elec- 
 tion, and are elsewhere called return judges, are required, in some cases 
 on the first day and in others on or before the second day after the 
 election, to deliver said returns to the prothouotary of the court of com-
 
 436 DIGEST OF ELECTION CASES. 
 
 moil pleas of the county, and on 12 o'clock of said second day the 
 prothonotary is required to present said returns to the court of common 
 yleas, who canvass the returns.. In case any return is missing, or ill 
 case of complaint by a qualified elector charging palpable fraud or 
 mistake, or when fraud or mistake is apparent on the return, and if in 
 the judgment of the court it shall be necessary to a just return, the 
 court is required to issue summary process against the election officers 
 and overseers to bring them forthwith into court, with all election 
 papers in their possession 
 
 And ii' palpable mistake or fraud shall be discovered, it shall, upon .such hearing 
 as may be doomed necessary to enlighten the court, be corrected by the court, and so 
 certified; but all allegations of palpable fraud or mistake shall be decided by said 
 court within three days after the day the returns are brought into court for computa- 
 tion, and the said inquiry shall l>e directed only to palpable fraud or mistake, and 
 shall not be deemed a judicial adjudication to conclude any contest now or hereafter 
 to be provided by law. And the other of said triplicate returns shall be placed in the 
 box and sealed up with the ballots. (Registry law, Ic7-i. , 
 
 It is to be noticed that it is not the election officers, but only 
 "one of them, viz, the return judge, who is required to file the affidavits 
 and other papers with the prothonotary, and within two days alter the 
 election the court of which the prothonotary is clerk are required to 
 canvass the returns, and in case of complaint by an elector or for other 
 causes, as has been before stated, the court may order all election papers 
 before them and have a summary hearing. In a case such as this is. where 
 direct evidence was accessible, and in the absence of any evidence that 
 the voters we are considering were challenged, or that any complaint 
 was made to the court, or that any cause for a summary hearing ap- 
 peared or was shown to the court, we think that it is inadmissible to 
 infer and find that the election officers committed the crime of permit- 
 ting non-registered persons to vote without requiring affidavits, merely 
 from the fact that a copy of the registry list obtained from the commis- 
 sioners' office has less names on it than are on the list of voters, and 
 from the further fact that either there is no evidence that the affida- 
 vits of the non registered voters were or were not taken, or there is 
 evidence that these affidavits were not found on file in the office of the 
 prothonotary. It is wholly on this inference and finding, and on the 
 burden of proof, that, as we understand, the foundation of the report of 
 the majority of the committee rests. The majority also adopt the theory, 
 not of throwing out the precincts the legal votes of which they find 
 to be uncertain, but of declaring the whole election void. They also do 
 not undertake to apportion the presumed illegal votes. 
 
 In Centre County it is said in the brief of the contestee, p. 24, that the 
 registry list used, and, as we understand, required to be put in the ballot- 
 box, was received by the election officers directly from the assessors, 
 so that the copy from the commissioners' office would not necessarily 
 contain the names which the assessors were authorized and required by 
 law to add. The evidence that in some precincts the affidavits were put 
 in the ballot-boxes is rererred to in the report of the minority. 
 
 That direct evidence was easily obtainable by the contestant from the 
 'ballot-boxes to show how every presumed or proved illegal voter voted, 
 as well as to show the discrepancy between the registry lists actually 
 used at the polls and the list of voters, appears from the statutes here- 
 after cited. It also appears that the election officers could be compelled 
 to testify whether they took affidavits or not, in addition to any testi- 
 mony that might have been obtained from the alleged illegal voters or 
 any other person, and in addition to the evidence of the taking of affidavits 
 which an examination of the ballot-boxes might have disclosed.
 
 CURTIS VS. YOCUM. 437 
 
 The eighth section of the registry law of 1874 requires that ' every 
 ballot voted shall be numbered in the order in which it shall be received. 
 and the number recorded by the clerks on the list of voters opposite the 
 name of the elector from whom received.'* The ballot-boxes should con- 
 tain, besides the ballots, the list of voters and other papers," and are 
 required, as has been stated, to be kept securely bound with tape and 
 sealed, ro answer the call of any court or tribunal authorized to try tin 
 merits of such election." unless when required for the purpose of hold- 
 ing another election, and then on the morning of such election all the 
 contents of the ballot-boxes are t< be burned and totally destroyed, 
 (Section 13 of the registry law.; We understand this thirteenth section 
 to mean that if the ballot-boxes are "called "by any proper court or tri- 
 bunal authorized to try the merits of such election before they are re- 
 quired to be used at the subsequent election, then they are to be held to 
 answer such call ; otherwise the old ballot-boxes are used at the election 
 to be held, the contents being destroyed on the morning of such election. 
 
 An inspection of the ballots in the boxes and a comparison with the 
 list of voters by the numbers would show how every person voted. The 
 opening of the ballot-l<>xes would, of course, also show whether any 
 affidavits had been put in as a part of the "other papers." 
 
 The nineteenth section of this registry law provides that "in trials 
 of contested elections, and in all proceedings for the investigation of 
 elections, no person shall be permitted to withhold his testimony on the 
 ground that he may criminate himself or subject him to public infamy, 
 but such testimony shall not afterwards be used against him in any 
 judicial proceedings \-.-ptfor perjury in giving such testimony." (See 
 also sections 103 and 859, Revised Statutes United States.) 
 
 Illegal voters can be compelled to testify for whom they voted. 
 
 The careful provisions of the Pennsylvania election laws were framed 
 apparently for the purpose of making it possible in every case to ascer- 
 tain what illegal votes were cast, and for whom cast, so that in each 
 precinct the poll could be purged of the illegal voters. 
 
 The burden of proof, even if the doctrine of declaring an uncertain 
 election void be adopted, is, we think, as stated by the minority, on the 
 contestant t< show that more illegal votes than the returned majority 
 of the sitting member were cast, and either that they were cast for the 
 sitting member or that it is impossible to ascertain for whom they were 
 cast, and this impossibility is an actual impossibility arising from the cir- 
 cumstances of the case, which could not have been remedied by the use 
 of due diligence, and not an impossibility arising wholly from the 
 absence of evidence that could have been token. The party having the 
 burden cannot by his own neglect create the impossibility. The report 
 of the majority on this point cites McCrary on Elections, page 225, sec- 
 tion 300, but that report does not quote what almost immediately follows 
 the clause quoted, \ l iz: 
 
 Let it be understood that we are here referring to a case when- it is tbund to be 
 impossible by the use of due diligence to show for whom the illegal votes wore cast. 
 If iu any given case it be shown that the proof was within the reach of the party whose 
 duty ii was to produce it. and that be neglected to produce it, then he may well be held 
 aoswetable for his own negl"ot: and ! - .- liis duty to show for whom the 
 
 illegal r<r :ause he might by the use of reasonable diligence have 
 
 n.au. this :y properly be said that he should suffer the loss occa- 
 
 by dedu'-ring them froni his owr 
 
 On page L'27 Mi 1 . McCruy 
 
 \V. think tip- safer rule, would be for t! -ho\v not only that a certain 
 
 number of ill<-_ . o!V;l. irit also to show, it' he can, that they were cast 
 
 lor hi opponent. It is not intended by thi to assert that the rnle above quoted from
 
 438 DIGEST OF ELECTION CASES. 
 
 Duffey's case is positively erroneous, but ouly to intimate a doubt, and to express 
 the opinion that the ordinary principle which requires the party holding the affirm- 
 ative to prove the facts and all the facts necessary to make out his case is the better 
 rule, and that it will in all cases be safer to follow it. 
 
 In this case the facts set out in the report of the minority show pe- 
 culiar reasons why the opinion expressed by Mr. McCrary should be 
 adopted. 
 
 The forty days given by the statute of the United States to the con- 
 testant to take his testiniony-in-chief expired on the 18th day of Febru- 
 ary, the day of the election of certain township and other officers in 
 Pennsylvania. The time of the taking of testimony by the contestee did 
 not begin until the day after said election. Unless the ballot boxes 
 could be held u to answer the call of any court or tribunal authorized to 
 try the merits of such election" before the morning of the ISth day of 
 February, the contents of the ballot-boxes would be totally destroyed. 
 The contestant not only took no steps, either by asubpcena (luces tecum 
 in this case or by an application to a court of general equity jurisdiction, 
 to preserve the contents of the ballot-boxes, but resisted the attempt 
 made by the contestee to have them preserved in certain counties, as 
 set out in the report of the minority. 
 
 This case is so voluminous as to require many weeks to read the tes- 
 timony and determine all the controverted facts alleged to be material 
 by one party or the other. On the facts reported to be conceded or un- 
 disputed by both parties, which are the foundation of the reports made 
 to this House, we think the election ought not to be declared void, and 
 110 one contends that on these facts Mr. Curtiu ought to be seated. If 
 the House is to take final action on the case upon the reports now made, 
 we think the resolution reported by the minority should be adopted. 
 
 W. A. FIELD. 
 B. OVERTON, JR. 
 J. H. CAMP.
 
 DONNELLY VS. WASHBURN. 439 
 
 IGNATIUS DONNELLY vs. WILLIAM D. WA8HBURN. 
 
 
 
 THIRD CONGRESSIONAL DISTRICT OF MINNESOTA. 
 
 Charges of bribery and coercion and intimidation of voters, and the counting of 
 .illegal voles by the canvassing otheers. 
 
 .Held, That bribery was committed on behalf of contestee, and that bribery com- 
 mitted by contestee, or by any auent of coutestee, with or without the knowledge 
 or direction of his principal, renders the election void. 
 
 Htld, That numbered ballots must lie rejected, because the numbering of same was 
 done to prevent a fair election and to intimidate voters. 
 
 Held. That where votes are canvassed and return made by a board constituted differ- 
 ent ly from that provided by law the returns must be rejected and the vote thrown 
 out. 
 
 Held, That the returns of the vote> east in the -'county of Polk and Kiteon" must 
 be rejected, because then' i> no "county of Polk and Kittson" in Minnesota, but 
 Neparate counties. Kittson being unorganized and not attached to Polk County 
 for any purpose. 
 
 The vote of Polk County alone cannot be determined from the retums or the evi- 
 dence. 
 
 [NoTi:. This ca,-e was reported to the House on June 16, 1880; was recommitted 
 to the Committee on Elections and ordered to be printed. No further action was 
 taken by the -House in this case.] 
 
 JUNE 16, 1880. Mr. MANNING-, cm behalf of the majority of the Com- 
 mittee on Elections, submitted the following 
 
 RETORT : 
 
 Views of certain members of the Committee on Eieotiom in tJte contested- 
 election case of Donnelly vs. Washburn, from the third Congressional 
 district of Minnesota : 
 
 The under>igned have carefully examined the questions of law and 
 
 *'<H-T involved in the case. 
 
 BRIBERY. 
 
 The first question which they considered was the question of bribery. 
 
 They find that bribery was committed ?n behalf of the sitting mem 
 ber. Mr. Washburn, by his friends, by members of his district com- 
 mittee, and by personal, political, and business agents; that this 
 bribery was not confined to any portion of the district, or to any one 
 town or county, but that it -xt<Mided throughout a- region of country 
 nearly 400 miles long and 100 miles wide : and they further find that in 
 many cases the bribery has been traced home directly to Mr. Wash 
 burn himself. The committ'-e give herewith an abstract of the testi- 
 mony in some of these oases* 
 
 Charles Berens, a Democrat, the postuia>t ; of the village of North,
 
 440 DIGEST OF ELECTION CASES. 
 
 Prairie, Morrison County (situated about 100 miles from Minneapolis), 
 testifies (page 300, printed testimony) that prior to the election of No- 
 vember 5, 1878, he wrote and mailed a letter directly to tlie sitting mem- 
 ber, Washburn, in which he said that he would give his support at the 
 election to him, Wasjiburu, for $50. This letter evidently reached the 
 sitting member, for Berens testifies that he received a letter in reply to 
 it from Keith, the postmaster at Minneapolis, a political friend of the 
 sittting member, in which Keith said "he was glad that Berens would 
 work that way." He, Keith, further stated that he would give Berens's 
 letter to J. V* Brower, one of the Republican United States land officers* 
 at Saint Cloud, and that Brower would attend to the matter. J. Y. 
 Brower testifies (page 246): 
 
 Charles Berens wrote a letter to Minneapolis demanding $50 for which he was to 
 support General Washbnrn [the sitting member]. The letter was sent to me by some 
 one in connection with the campaign ; I can't say whether by the committee or by 
 General Washburn or by some one for them. 
 
 Brower admits the receipt of $50 from Washburn or his committee, and 
 may have got more. Berens (page 300) and Brower (page 246) both agree 
 that Brower visited North Prairie, Morrison County, and called on Ber- 
 eus; Berens says: "Brower said I should work for Washburn and he 
 would see me ail right." He says Brower did not pay him any money 
 because he, Brower, did not trust him he thought he was supporting 
 Donnelly. Brower testifies: 
 
 I advised General Washburn [the sitting member], or some one for him, after I 
 had been advised that no arrangements of that character could be entered into [that 
 is, the purchase of Berens's support, for $50], or words to that effect, that he should 
 not enter into such arrangements with Charles Berens, or any one else. 
 
 Here it is clearly established that there was a negotiation between a 
 Democratic voter and Mr. Washburn, the sitting member, the one to 
 sell his vote (for his vote is implied in his " support") for $50, and the 
 other to buy it. The letter is answered for Washburn by Keith, his 
 friend ; the proposition is accepted with thanks, and the letter is deliv- 
 ered to a Federal official, who goes, with the letter and with Washburn's 
 money, or the money of Washburn's committee, in his pocket, to see the 
 party and consummate the transaction. The offense of bribery was com- 
 plete when one party offered to sell his vote and the other agreed to buy 
 it. (See Russell on Crimes, volume 1, page 159; Hardinge rs. Stokes, 1 
 M. & W., 233.) Brower reports to Washburn, or some one for him, that . 
 the "arrangement", could not be entered into. 
 
 There is no denial of this testimony and no attempt to impeach Berens 
 or Brower. 
 
 If Washburn had not been ready to use money to corrupt the voters 
 of his district he would have resented the proposition made to him by 
 Berens as an insult; on the contrary, he appears to have been as ready 
 to buy Berens's vote as Berens was to sell it. That Brower was Wash- 
 burn's agent clearly appears ; and when Brower told Berens that he 
 should work for Washburn and he (Brower) would "see him all right," 
 it was in effect the same as if Washburn himself had spoken those 
 words. In short, as Keith and Brower simply acted as agents for Wash- 
 burn, the transaction may be thus briefly stated: 
 
 1. Berens tells Washburn he will sell him his vote for $50. 
 
 2. Washburn thanks him and tells him to go ahead and it will be all 
 right. 
 
 Thereisin the third Congressional district of Minnesotaan unorganized 
 county named Kittson, situated in the north western corner of the State, 
 and adjoining the line of the British possessions ; it is more than 400
 
 DONNELLY V,- WASHBURN. 441 
 
 miles from Minneapolis. In the tali of 1878 this county was a -wilder- 
 ness; there were probably, as appears from the testimony, 7iot ten actual 
 settlers in the entire county (see pages- 12. r .-144>. Between the Sth and 
 the 16th October. 1878 (pai^e 125), two men. named Arthur J. AVhite and 
 E. P. Webster, entered into a contract with the Saint Paul and Pacific 
 Railroad Company, which was then constructing a railroad through 
 said county, t" g-t out cord-wood for the use of the railroad company. 
 Between the dates named they collected together SOUK- so or 90 
 wood-choppers in the city of Minneapolis, and proceeded to Ivittson 
 County to cut this cord-wood. The men so hired were principally har- 
 vest-hands and tramps who had not been in the State long enough to 
 vote; they woe in Kittson County for a temporary purpose, and were 
 therefore not entitled to vote under the laws of Minnesota (see Rev. 
 Btet. Minn., sec. 55, page 66); the county was unorganized, and theeleetion 
 precincts were established in the coumy ten days before the election, 
 by the governor, without authority of law, and were therefore legally 
 not election precincts; there were no registration lists at the polling- 
 places; the voting took place in railroad depots or in railroad cars: there 
 were no proper ballot boxes (cigar boxes and candle boxes without 
 locks and keys, as required by law, being used as ballot-boxes); the 
 judges were not sworn, and, in short, almost all the requirements of the 
 laws of the State for the holding of elections were ignored. 
 
 At one of these precincts, to wit, Tamarack River, these 80 or 90 wood- 
 choppers, hireu by Webster and White, voted. There were only 4 actual 
 settlers (page 325) in the precinct, and these alone were presumably enti- 
 tled to vote. The vote cast was 109 for Washburn and 1 for Donnelly. 
 The testimony of George C. Morton (page 125), John Mulvey (page 120), 
 Arthur J. White (page 305), and E. P. Webster (page 297) shows that 
 these 80 or 90 wood choppers were urged and requested by Webster and 
 White, the wood-contractors, to vote for Washburu; they were told that 
 if they voted for Washburn they would be paid (page 12">) from $1.6."i 
 to $20 each for their votes; they did vote, and they voted for Wash- 
 burn, and they were so paid: and they refused to cote at all unless they 
 were paid (page 297). The total sum paid by Webster and White to 
 these men for their votes was $100 or $170 (page 307). It further ap- 
 pears, by the admission of Webster, that the contractors expected to 
 be repaid this money (page 297) so paid out for these votes. 
 
 It also appears (see page 121) that in addition to the 80 or 90 wood- 
 choppers so bribed to vote for Washburn. the contractors Webster and 
 White gave two trappers their board for a week on condition that they 
 would vote for Wasburn ; and they did so vote. 
 
 George C. Morton testifies (page 126) that White told him in the ] 
 ence of Webster that they. Webster and White, were to get $200 for their 
 services at the election in behalf of Washburu. The money paid out by 
 them fur votes was repaid to White, one of the firm (see page 127), by 
 Major Hale, of Minneapolis, the business manager of the contestee, 
 Washburn, eight days atter the election, by a check for $182: and the 
 check \\as cashed for White by one George B. Webster, the paymaster 
 of the Minneapolis and Saint Louis Railroad Company, of which the 
 coutestee, Washburn was and is president. White admits '-"7) 
 
 that he was repaid the sum of $168 or $172, being the money so paid 
 for these 80 or 90 votes, by said George B. Webster, paymaster of eou- 
 tcstee's railroad company. There was no connection between the Saint 
 Paul and Pacific Railroad, for which the wood was cut. and the Min- 
 neapolis and Saint Louis Railroad, of whici: .-ome>ree is president: the 
 one runs from Saint Paul northwestwardlv to British America or Mani-
 
 442 DIGEST OF ELECTION CASES. 
 
 toba; the other rims from Minneapolis southwardly to wards Saint Louis; 
 and the place where the wood was cut was between 400 and 500 miles 
 distant from Minneapolis. 
 
 Here, then, is a case of bribery by the wholesale, and it clearly appears 
 -that the money that was paid for the bribed votes was repaid in \Vash- 
 burti's office by his business manager, by a check which is cashed by the 
 paymaster of his railroad company. 
 
 Emil Shagreu, a Swede, a Greeubacker, a laboring man, resided at the 
 date of the election in question at Minneapolis, Minn, (page 15). He 
 was an active supporter of the contestant, Donnelly, and had beeira 
 delegate to the Greenback Congressional convention. About the 15th 
 October, 1878, a friend of Washburn, named William Chase, urged him 
 to go to Washburn's office to see Major Hale, his business manager (the 
 same person who paid for the 80 or 90 bribed votes at Tamarack Kiver), 
 because Major Hale would "convince" him that he should vote for 
 Washbum. Shagreu declined to go. The invitation was several time* 
 repeated. At length Shagren went to Washburn's office. He was met 
 by Major Hale, who was evidently prepared by Chase for the interview. 
 Hale commenced by asking him if he wanted greenbacks. He, Hale, 
 then referred to the fact that Shagreu had been a delegate to the Green- 
 back convention and was a supporter of contestant, Donnelly. Hale 
 told him that lie would see that he, Shagren, voted for Washburn. 
 This ended the first interview with Hale. Soon after Shagren got out 
 of work. Chase again urged him to go to see Hale, and he, Hale, would 
 give him "a job"; and he gave him a sealed letter to Hale. On the 19th 
 October Shagren went to Washburrfs office again. He gave the letter 
 to Hale; Hale read it and went into another room and conferred in whis- 
 pers, which the witness overheard, with C. C. Washburn, brother of the 
 sitting member and ex-governor of Wisconsin. Hale then came out of 
 this room with a $5 bank-note folded between his fingers; sat down be- 
 side Shagren, put his hand on his lap, and said: " Emil, I will tell you 
 what I want of you; I want you to vote for W. D. Washburn (the sit- 
 ting member), and use your influence and work among your friends for 
 the election of Governor Washburn (the sitting member), and I will 
 pay you $2 a day from now to the close of the election;" and " he figured 
 it up and said it would be $36, besides my expenses and money to spend 
 among the boys." "He told me to bring my bill there to Mr. Wash- 
 burn's office the day after the election and I would get my pay.'' Shagren 
 made no answer. Then Hale took the $5 bank-note, which he had 
 brought out of the room where he conferred with the brother of the sit- 
 ting member, and delivered it to Shagren, saying: " Emil, here is $5 ; go 
 and use this among the boys, and drop in occasionally and I will give 
 you more." 
 
 It is true that Shagren voted, worked, and made speeches for Donnelly 
 subsequent to this interview; and in one of these speeches and before 
 the election he stated, publicly, the particulars of this attempt to cor- 
 rupt him and secure his vote; but the crime of bribery was complete 
 when Washburn, in his own office, through his business manager, and 
 in the presence of his brother, paid Shagren #5 and promised him $36 
 more, and Shagreu accepted the $5. It is of no moment whether 
 Shagreu intended to vote for Washburn or not, or whether he did or did 
 not so vote. An attempt was made to impeach Shagren by showing that 
 he was contradicted by John C. Oleson and Ole H. Mahler; but Oleson 
 (page 92), while he denies that he told Shagren that he was paid 8- by 
 William Chase for his vote, admits that In- was paid $2 by William 
 Chase for services at the election; and Mahler (page 117), while he de-
 
 DONNELLY VS. WASHBURN. 443 
 
 nies th;it he told Shagivn that ho had re., ;\.-d >_'."> from Washburu, 
 admits that ho received *15 or $25 from somebody, lie decline 
 say whom, and he declines t> say whether or not he peddled tickets 
 with Washburn's name mi them. So that :lies ( - \\ :tnes.v,-> <-unn'rm in- 
 stead of impeach the substantial truth of Sham-en's testimony. II ov 
 could he have known the facts stated unless these parties told him ? 
 
 The proof in this ease M-ems to your committee to be very coneli: 
 the party bribed was an active opponent of Washburn and warm suit- 
 porter of Donnelly, and these facts were known to Washburn's busi- 
 - manager, lie belonged to a difr'i-rent political party from the sitting 
 member. The bribery takes place in Washburn'x office and in the ;>r/wwr* 
 if hi* brother. The witness. Shagren. was coaxed there under the pro in- 
 it' a job. and advantage taken of the fact that he was out of work 
 -and poor. A distinct and deliberate proposition is made to him to pay 
 him a given sum for his vote and support, and part of the money is paid 
 to him. 
 
 Bernard Cloutier (see page Jll) resided in Minneapolis at the time of 
 the election, and sold farm machinery. He was, and had always been, 
 a 1 )emocrat, and generally took an active part in politics. About a week 
 or ten days before the election he met .John Baxter, a friend of the sitting 
 nber. t'loutier told him. in answer to a question by Baxter, that he, 
 Oloutier, did not intend to take any part in the election. He >a\s, ' I 
 told him that I had made up my mind to take no part in the election, 
 as I had heretofore been promised a good deal and nerer (jot anything 
 /or it." Thereupon JJaxter requested witness to see Charles W. John- 
 son (secretary of the Republican central committee of the. third Con- 
 -sioKal district). Two or three days thereafter Baxter met Cloutier 
 again, and asked him if he had seen -Johnson. Cloutier said no. Bax- 
 ter said that was queer, as Johnson had promised he would see Cloutier. 
 Baxter then took Cloutier to the office of the sitting membt>\ Waxhbitrv, 
 and they told him there that Johnson had just gone out. An hour after- 
 wards Cloutier was in Christian & Dean's office, when a gentleman 
 came in and told him that -'General Washbt/rn \the sittimj member] 
 ranf'-d to see me [Cloutier] at his [ Washburri's] office." Cloutier went to 
 Washburn's office, and there met Charles \\ . Johnson and Dr. Keith, 
 (the postmaster at Minneapolis, and the same party who thanked Charle.> 
 Berens for his offer to sell his support to Washburn for $50). Johnson 
 wanted Cloutier to go out and electioneer for Washburu. Cloutier said 
 he would do so if he was paid for his time and expenses. Thereupon 
 Johnson told him to start out. The next day Johnson met Cloutier at 
 the post-office, and paid him $30. The following Wednesday Cloutier 
 net Johnson again at Waxhbiirti's office. a l told him I wanted some more 
 iey. He asked me how much I wanted, and I told him I wanted 
 . He [Mr. Johnson] tca>t into the next room and commenced talking 
 icith Mr. '\Yaxhhurn. the xitfhxi member. He came back and handed w 
 
 The witness, Cloutier. states in his rros.s-examinatioii that he was in 
 favor of Mr. Washburn in the first place; but it appears by his exami- 
 iiation-in-chief that he had made up his mind to take no part in the 
 election, because he had been previously promised bribes which were not 
 paid; and thereupon he wa> paid $50 to convert him from that position 
 of neutrality and indifference into a warm supporter of the sitting mein- 
 >er. In other words, the payment of that sum of money secured to Mr. 
 Washburn a support and influence which he would not have had with 
 out it. It is fair to presume that if the vote and support of this mer-
 
 444 DIGEST OF ELECTION CASES. 
 
 cenary politician could have been bad without the payment of money 
 the $50 would not have been paid. 
 
 The contract of bribery was made by the secretary of Washburn's 
 committee in Wash-burn's office, and part of the money was paid in 
 Washburu's office in his presence, and under circumstances which cre- 
 ate a strong presumption that it came from Wasnbmn's pocket. That 
 is to say, Cloutier asks Johnson for $20; Johnson goes to Washburu, 
 and returns with the money and pays it to Cloutier. 
 
 Here, then, we have four cases of bribery, involving 96 bribed votes, 
 brought home to the silting member in the clearest and most conclusive 
 manner. In the first case the negotiation is with Mr. Washburn him- 
 self; in the next, the money which bought the votes is repaid in his 
 (Washburn's) office by his business manager: in the third, the bribe is 
 offered and the money paid in Washbun>'* office by his business man- 
 ager and in the presence of his brother; and in the fourth ease the 
 bribe is offered and the money paid by the secretary of Was-hburu's 
 committee in Washburn's office, and part of the money paid in Wash- 
 burn's presence, and probably out of his pocket. It seems to your com- 
 mittee that this evidence is sufficient to convict Mr, Washburu of 
 bribery in any court in the world. 
 
 And yet in the face of such an array of testimony Mr. Washburn is 
 dumb. He had forty days in which to rebut this testimony ; he could 
 have taken the stand himself, to explain or deny the Kerens mutter ; he 
 could have procured the testimony of his business manager, Hale, to 
 contradict Shagren and Morton : he could have called Johnson to con- 
 tradict Cloutier; he could have sworn his brother, ex-Governor C. C. 
 Washburn, to deny that he was present and conferred with Hale, and 
 also to rebut the natural presumption that he (C. C. Washburn) fur- 
 nished the $5 with which Hale bribed Shagren. He did nothing of 
 this kind; he denied nothing; he called not a single witness torelur. 
 this or anything else in the mass of testimony showing bribery. Cer- 
 tainly no lawyer, and no layman familiar with human nature, will pre- 
 tend that it was Mr. Donnelly's duty to place these parties who held sucl- 
 close and intimate relations with Mr. Washburu on the witness stand. 
 He might just as well be asked to make Mr. Washburn his witness. In 
 these matters he and his friends were like the Siamese twins, living, 
 breathing, and moving together. Every part of this testimony was 
 brought home to the knowledge of Mr. Washburu, as he was represented 
 by counsel at the hearing of each witness. It will not do for Mr. Wash- 
 buru to say that he did not wish to "dignify the case of the contestant" 
 by calling witnesses in rebuttal. His own character as a man of honor 
 demanded some denial or explanation of this testimony, which traces 
 the bribery of 96 voters right to his own office, to his business manager, 
 to his brother, and to himself. If he did not consider his own reputa- 
 tion affected by such charges, he at least owed it to his constituents, 
 and to the Congress of the United States, to prove that he had not 
 gained a seat in the House by unworthy, dishonorable, and criminal 
 practices. 
 
 Having failed to rebut this evidence by counter testimony, the pre- 
 sumption, of law becomes conclusive that he did not do so because he 
 could not do so. He concedes thereby the truth of every statement 
 made by contestant's witnesses, and his silence is an admission of his 
 guilt. It is a well understood principle of law that admissions of guilt 
 "may be implied from acquiescence of the party, whether it be acqui- 
 escence in the conductor language of another.' ( hvnileaf on Evidence, 
 vol. 1, sec. 27 and sec. 197.) "if a material aveiuiHit. well pleaded, is
 
 DONNELLY 445 
 
 pas.-ed ovt-r by the adverse {-arty, without denial, whether it be 
 confession, or by pleading some other m;;; y demurring in la\v, 
 
 thereby conclusively admitted." 7.) And in this 
 
 the failure to rebut Ol ;ony <t' these witm-sse.x a 
 
 bribery, is a contesMon of the truth of their statements and of the guilt 
 of the party. 
 
 Your committee have dwelt at length upon these lour rases, bee;., 
 they reach home directly to the sitting member: but they constitute 
 but a small part of the testimony showing bribery. 
 
 At Crookston, in I'olk County, the, testimony shov hat but 
 
 >.' leg.il votes were cast, while I'.iis voU > \\ civ returned as cast. A 1.. 
 part of these illegal votes were, cast by parties at work upon the con- 
 struction of a railroad: they were not inhabitants of the township 
 they had no right to vote tlu-ie. It i.^ proved that of> or 40 of tl 
 were paid for their votes by the railroad company; their tickets 1 
 .furnished them by the ,. :!K company: they were Washburn 
 
 tickets, and they all voted for Washburn. The men so paid to vote for 
 Washburn were Democrats. They were at work shoveling- dirt around 
 the rotir.d house. lJe>u!e< these, two hand-cars, loaded with railroad 
 men, also voted about 10 of them. 
 
 William Johnson .;see ] was one of a gang of 17 railroad la- 
 
 borers: they \\ere at work 14 miles away from Crookston. and outside 
 the election precinct : they had no right to vote at Crookston, but 10 of 
 them did so vote, and they were paid for their votes by the railroad 
 company : the agents of the company furnished them with their tick- 
 ets Washburn tickets; and they voted for Washburn ; they would not 
 B voted at all if they had not been so paid (page 191). 
 
 I). M. Robbins (page :U. of Saint Paul, had a railroad contract to 
 help build the railroad through Kittson County; had 1">0 men working for 
 him 1~> miles from Two Kiv-rs. Kirtsmi County: about 100 of these men 
 went with him on a construction train to Two Rivers to vote : these 
 men. except about 30 or 40, did vote ; they were all paid for their votes 
 [he same amount they would have earned if they had continued to 
 work: the railroad company ran the train for their accommodation: fit* 
 rotiiiQ-itlace tcnx a nnlron<! cur, which stood on a side track; there was 
 no house at Two Rivers station of any kind. As the vote at Two Riv- 
 ers was 74 for Washburn and 1 for Donnelly, the bribed voters must 
 have voted for Washburn. It further appears (page oO) that the rail- 
 road laborers working for th; - at Tamarack River voted there. 
 These made up the balance of the lul> votes polled at that place. 
 
 Dennis Ileardou testifies page 144) that he was one of a gang of 
 more than 50 railroad hands that voted between Middle River and Tam- 
 arack Hiver: at Two Rivers the voting-place was a box-ear, the ballot- 
 box was a candle box : there were no tickets there but Washburn tickets. 
 These 50 railroad men lived in box-cars and were moved forward as the 
 work progressed. They were all paid for voting by the railroad com- 
 pany; many of tliem were Democrats. There were no houses in sight 
 at that place, and of course no residents of that locality. 
 
 This testimony establishes ;he fact that at Crookston. Tamarack 
 River, and Two Rivers, there were 101 votes cast by railroad workmen, 
 who were not residents <>t those localities, were there for a temporary 
 purpose, and were not entitled to vote: and that they were all paid for 
 their votes: that they voted tor Washburn and would not have voted if 
 they had not been paid. 
 
 We have seen that J. V. I '.rower page L'44), one of the United States 
 land officers at Saint Cloud. Minn., was furnished with the letter of
 
 446 DIGEST OF ELECTION CASES. 
 
 Charles Berens to Washburn, in which Berens offered to sell his voter 
 to Wasliburn for $50. It further appears that Brower received from 
 Washburn, or his committee, money to visit Berens and to make a can- 
 vass of certain counties; how much does not appear, as B rower's- 
 memory is very oblivious of these details. Brower admits (page 245) 
 that he left money at different places in Totld and Morrison Counties 
 during his canvass for "legitimate political purposes"; that he did this 
 in the interest of Mr. Washburn ; and In-. Washburn, knew he was 
 working for him (page 252); he visited five towns in Morrison County. 
 He considers it perfectly legitimate to hire Democrats to work with their 
 teams in behalf of the Republican party. He hired a number of men 
 in this way; he cannot remember how many : it may have been twenty 
 or one hundred ; neither can he recollect whether he spent $50 or $500" 
 in this canvass of Morrison and Todd Counties. 
 
 This testimony shows that an agent of the sitting member, acting at 
 his request, with his knowledge and by his authority, and furnished with 
 his money, or the money of his party, went out into the counties of Todd 
 and Morrison, 120 and 150 miles from Minneapolis, upon a mission of 
 corruption ; that he bought up probably 100 voters and spent probably 
 $500 in the work : and although the events transpired but a few weeks 
 before his testimony was taken, he pretends that he does not remember 
 the names of the voters he bought, the amount he paid out, or the num- 
 ber of persons bribed. The bribery was accomplished under the thin 
 disguise of employing Democrats to work at the polls for the sitting 
 member. He admits that one of the parties so bought was George 
 Geissel, of North Prairie; he paid him a sum of money may have been 
 $5 or $20 for the use of a team (page 246). He paid Thomas Kitowski a 
 sum of money, probably $25 or $30, to peddle tickets for Washburu at 
 the polls, and for cigars to be furnished the voters (pages 245, 253). 
 Kitowski was a Democrat. 
 
 Having established the close relations of Brower with the sitting mem- 
 ber, and his authorized agency for him, let us follow him in his canvass : 
 
 John Fleckenstein (page 291), of Rich Prairie, Morrison County, a 
 farmer: his " politics aint much"; Brower called to see him; he told 
 Brower he had decided to take no part in the election. He subsequently 
 received, he thinks from Brower, $10 with a lot of Democratic tickets 
 with the sitting member's name on them. He kept part of the money j 
 he bought crackers and beer with part and paid $5 to Peter Virnig. 
 The witness pretends that he voted for Donnelly, but the tone of his 
 testimony renders this doubtful. 
 
 Brower then went to see Peter Virnig (page 299), another farmer 
 of Rich Prairie, a Democrat. John Fleckenstein was with him. Fleck- 
 enstein paid him, Virnig, $5, "for his team and his day's work" at 
 the election. With the $5 was a lot of Democratic tickets with Wash- 
 burn's name on them. Virnig also pretends that he voted the straight 
 Democratic ticket. 
 
 Brower also called to see Henry Armstrong (page 303), of Two Rivers, 
 Morrison County, a farmer and a Democrat. He testifies that Brower 
 paid him $20 to work at the polls for Washburu. He did work for 
 Washburn, distributed his tickets, and the presumption of law is that 
 he voted for him. 
 
 Thomas Kitowski was subpoenaed to testify, but refused to appear. 
 Charles Berens testifies, however (page 300), that Kitowski told him that 
 Brower had paid him $50. Brower admitted he had paid him some 
 money, it may have been $25 or $30. 
 
 These briberies having been committed by an authorized agent of
 
 DONNELLY VS. WASHBURN. 447 
 
 the sitting member, were, in effect, committed by the sitting member 
 himself; and the agent, Browei. >a\ s that lie will not swear that he did 
 not bribe 100 persons in the same way during his canvass of Todd and 
 Morrison Counties, and spend *oOO in doing so. 
 
 Milo Porter (pap-2'.t-:, mail-carrier, of Little Falls, Todd County, was 
 a supporter of Donnelly. The Republican county treasurer of Todd 
 County, Mr. Buss, offered him $50 if he would abandon Donnelly and 
 support Washburn. He (Buss) said he had himself received, or was to 
 receive, $500. Porter declined to take the $50, and published a card at 
 onee, before the election, in the Little Falls Transcript, reciting the 
 offer made him, and warning the people of the kind of means that were 
 being employed to elect Washburn. There was no attempt made to 
 contradict Porter's testimony. Buss was not called to the witness- 
 stand. 
 
 We pass from the northern part of the district to the southern part. 
 
 William M. Leyde (pae48^1ivesatCottageGrove Washington County, 
 engaged in thrashing-machine business a Republican. He saw Mr. 
 Washburn in Saint Paul shortly before the election. He went to Min- 
 neapolis, to the room of the Republican Central Committee, or a room 
 adjoining. He was there furnished with a letter (he does not remember 
 whose name was to the letter) to a Mr. Sabin, of Stillwater, requesting 
 Sabin to employ him to canvass the county (page 49). He (Leyde) un- 
 derstood that $600 was raised in Stillwater for political purposes. 
 Armed with this letter, he went to Stillwater, and was paid $50 by Sabin 
 and $15 by another party to canvass the county, and thereupon he 
 visited nearly all the towns in the county and hired men to work at the 
 polls for Washburn with their teams. He declines to say who he hired, 
 how many he hired, or how much he paid them. 
 
 We supplement Leyde's testimony by the testimony of F. S. Meilicke 
 (page 52), one of the county commissioners of Washington County, to 
 whom Leyde stated that he (Leyde) had talked with Washburn, and 
 Washburn told him to go to Sabin, and that the money had been 
 placed in Sabin's hands and he would make it all right with him"; ami 
 that they had raistd $600 in Stillwater, "besides the amount that Mr. 
 WftKhlmrn had placed there" He (Leyde) said that he had spent all the 
 money so furnished him but $15 in hiring men to work at the polls for 
 Washburu ; he gave the name of one man, Henry Monroe, of Newport, 
 to whom he had paid $5 "to work at the polls for Washburn." All the 
 $600 raised at Stillwater, and the money contributed by Washburn, was 
 to be spent in behalf of Washburn. 
 
 We turn now to some briberies committed in Saint Paul; and here, 
 again, the money paid is traced back to Minneapolis, and to the sitting 
 member. 
 
 John Flahertv (page 25) testifies: Is a saloon keeper in Saint Paul ; 
 a Democrat. He went to Minneapolis two weeks before the election; 
 went to the Republican headquarters: saw C. W. .Johnson, secretary of 
 the Republican Central Congressional Committee, and the same party 
 who acted as agent for Washburn in the bribing of Cloutier. Johnson 
 said tint Washburn must be elected, and asked witness if he thought 
 he could get many votes in Saint Paul, and witness said he thought ho 
 could. Johnson told him that oneR. Bardeu "was their agent at Saint 
 Paul,'' and promised to write Harden about Flaherty. The day before 
 election witness called on Harden and Barden paid him $10. Witness 
 preteuds that he voted for Donnelly, but admits that he worked at the 
 polls part of the time for Washburn. 
 
 Abraham Werfick (page 28). of Saint Paul, machinist, testifies that
 
 448 DIGEST OF ELECTION CASES. 
 
 he also went to Minneapolis in October, before the election. He made 
 it his special business to see Washburn, and saw and conversed with 
 him; he asked Washburu " who was his friend down there"(iu Saint Paul). 
 Washburn told him "he expected the committees would take some in- 
 terest in him"; "that Mr. Barden" (the same party mentioned by Fla- 
 herty) " was on some committee," and he gave him a letter of introduc- 
 tion to Mr. Barden ; the letter stated that Werrick was his ( Washburu's) 
 friend. Witness presented Washburn's letter to Barden ; forgets what 
 conversation took place; bnt the committee (presumably the committee 
 of which Barden was a member) asked him to hire two men to work at 
 the polls. He received $30 $10 for himself and $20 to hire two men. 
 He hired Olnf Larson and Julius Bjornstad, and paid them $10 each. 
 He w r orked for the whole Republican ticket. Prior to seeing Washburn 
 and being paid this $30, he had not been supporting Washburn (page 31) ; 
 the men Larson and Bjornstad were paid to work for the w r hole Repub- 
 lican ticket. Larson (page 27) is called and admits the receipt of $10 
 from Werrick, to work for the straight Republican ticket; he did so work 
 and voted for Washburn. Bjorustad (page 21) testifies to same effect ; 
 he worked for the whole Republican ticket; received $10 from Wer- 
 rick ; he claims to have voted for Donnelly. 
 
 O. B. Wergedahl (page 20), of Saint Paul, testifies that Werrick told 
 him he wanted him to work for the Republican ticket ; and said that 
 he (Werrick) saw Washburn twice in Minneapolis, and that Washburn 
 him (Werrick) to Barden, and told him that lie (Washburn) " had given 
 money to Barden to spend in Saint Paul for his election." 1 ' He wanted 
 Wergedahl to work for Washburn, and told him he had got money for 
 Bjornstad ; witness refused to work and vote for Washburn. 
 
 This testimony seems conclusive. Washburn had placed corruption 
 funds in the hands of R. Barden, and he and Johnson, secretary of his 
 committee, refer parties to Bardeu for money ; and Bardeu, or some 
 member of the committee, payvS out money to these parties ; they pay 
 In turn to others, and all of them work at the polls for Washburn's 
 election. 
 
 Another Saint Paul party, John Guiry (page 22), admits the receipt 
 of $25 from a Republican candidate for a local office (State senate) to 
 work at the polls aud peddle Republican tickets. He pretends to have 
 voted for Donnelly. 
 
 Christian Heyer, a Democratic German farmer, of Afton, Washing- 
 ton County, testifies (page 54, printed testimony) that he was paid $10 
 by Warren Getchel, a Republican politician, and particular friend of 
 the sitting member. Getchel asked him if he could support Washburn. 
 Witness said he would. Getchel said he was " a particular friend of 
 Washburn," and " he wanted me to help all 1 could ; he asked me if 
 there were any debts on our German church, and that after election he 
 would hand me $10 to use for what purpose we thought best I could 
 do with it as I had a mind." He does not know what the consideration 
 was for the $10. They have a large German population at Alton, about 
 half Democrats. He worked aud voted for Washburn. 
 
 Tolef G. Fladeland, of Sauk Center, Stearns County, merchant, testi- 
 fies (page 221, printed testimony) that he was paid 820 by Mr. Cooper, 
 chairman of the Republican county committee of Stearns County, to go 
 out and peddle Democratic and Republican tickets with Washburn's 
 name on them. He told Cooper that he was not a politician ; doesn't 
 know but he expressed himself in favor of Mr. Donnelly during the cam- 
 paign. At the time Cooper paid him the $20 he was neutral as between 
 Donnelly and Washburn. He visited two or three towns ; used his own 
 team; was gone one day; expenses *! ; profits, $19.
 
 IiOjLNELLY VS. WASHBURN. 449 
 
 The testimony of Nathan Richardson. <t' Little Falls, Morrison County 
 (page 285), leading Republican and politician by trade, shows that the 
 editor of the Democratic paper at that place was bought up to support 
 Washburn; that the sum paid was probably *12."> \p;> : that it 
 
 came from Minneapolis, from Loren Fletcher, an active friend of the 
 sitting member and a prominent Republican (page 44) ; and that after 
 the payment of that sum the said newspaper supported Wash burn and 
 denounced Donnelly. The witness Richardson, who conducted the sale 
 of this Democrat and his newspaper, supported NVashburn, made a can 
 v.iss of the county in his behalf, spent 8-">. He admits the payment of 
 87 t<> William Witherall : he did not expect to be repaid ; thinks With- 
 erall voted for Washburn : he also paid 62 or ''oto a man named Sloan; 
 money has not been repaid ; thinks Sloan voted for Washburn. 
 
 It will be observed that in nearly every one of these cases of bribery 
 committed throughout a region of country half as large as the State of 
 New York, the money paid is traced back to the city of Minneapolis, 
 the residence of the sitting member. From this point as a common 
 center, the corruption radiated in all directions over the district ; and 
 when we come to Minneapolis all the testimony shows that it was a 
 very hotbed of bribery. We give brief abstracts of the cases proven : 
 
 It is shown (page 80) that a Democrat named A. M. Schaak, a Scan- 
 dinavian, was publishing a Scandinavian newspaper in Minneapolis 
 during the campaign and supported Donnelly for Congress up to the 
 night before the election : that night he was announced to speak at a 
 Scandinavian Democratic meeting at Minneapolis in favor of contest- 
 ant, Donnelly. Instead of speaking for Donnelly, he came oat strongly 
 for Washburn. arid the next day he admitted to witness that he had 
 been paid ? l.~o for doing so. He had a new suit of clothes and a pocket 
 full of money. There was no attempt to contradict this witness ; in fact, 
 counsel for the contestee, in their cross-examination, seem to urge 
 that it was perfectly right and legal to bribe Democrats to speak in 
 favor of Republican candidates. It may be said that this testimony as 
 to Schaak is hearsay evidence. The declaration of a voter as to his 
 fpialiiication or disqualification to vote is always received in evidence; 
 he is regarded as a party to the proceedings. This is a well-settled and 
 uniform practi'-e (see '21 N. V. Rep., People t. Pease; :'. McCord's 
 Rep., page 230, foot-note ; contested election case, Vallandigham and 
 ( ampbeli, Cong. Globe, vol. 41, page 2317 ; and in the case of Milborne 
 Port. 1 Douglas Flection Cases. <>7. 7i, 12!), 1"><>, &c., (see 3 McCord, 
 . it was decided that the admissions, of a voter that he was bribed 
 are always receivable in evidence. They rest also on the broader ground 
 that confessions of crime are receivable against the party "as the high- 
 ,!iid most satisfactory proof." (Russell on Crimes, volume 2, page 
 823). Here the admissions are confirmed by all the surrounding circum- 
 stances; the sudden conversion on the eve of the election, the new 
 clothes, money. S:e. 
 
 William R. Metcalf (page 1S2), a farmer residing in Crystal Lake 
 Township, near Minneapolis, testifies that he was paid $15 to work at 
 the polls in Crystal Lake Township for the Republican ticket. Corser, 
 one of the parties who hired him to work at the polls, was a Repub- 
 lican candidate for State senator, asked him to support Washburn ; he 
 refused : subsequently he was engaged to work at the polls for the Re- 
 publicans. The $15 was paid him by Charles W. .Johnson, secretary 
 of Washbunfs committee, the same party who bribed Shagren. Flaherty, 
 fto. He went to Johnson's office two days after the election : he simply 
 H. Mis. 58 JO
 
 450 DIGEST OF ELECTION CASES. 
 
 presented his name and Johnson paid him the $15 without a word. He- 
 declines to say who he voted for for Congress ; will not swear that he 
 did not vote for Washbum. 
 
 It will be remembered that when Major Hale attempted to bribe Sha- 
 gren he told Shagren to come the day after election to Washburu's 
 office and he would be paid. We find, from Metcalf's testimony, that 
 Johnson also had an arrangement to pay off his bribed voters the day 
 after election; and in this connection we would refer to the testimony 
 of Ed. A. Stevens (page 105), whose office was in the same building 
 with Johnson's office, who swears that as he passed Johnson's office 
 several men were standing in front of it, and a party said to Stevens, 
 " You ought to hear Charley Johnson swear : there is a big crowd below 
 after their pay, and Charley says t Major Hale can pay his own hounds. 
 I have all I can do to pay those I hired myself.' v The testimony of 
 Metcalf and Shagren shows what they were being paid for. 
 
 This same man Johnson issued, September 19, 1878. as secretary of 
 the Republican Congressional committee, an appeal (see page 43) in 
 the form of a circular, to Republicans to contribute funds to the suc- 
 cess of the Republican cause in the district. The circular is in these 
 words 
 
 MINNEAPOLIS, September li>. 
 
 SIR: The Congressional committee, charged with laboring for the success of the 
 Republican cause in this district, call with confidence upon you, as a Republican, for 
 such a contribution in money as you may feel willing to make, hoping it will not be 
 less than $ . 
 
 The committee deem it proper in thus speaking to Republicans to remind them of 
 the importance of the impending campaign. That the fnited States Senate is to be 
 Democratic after the 4th of March, 1879, is very nearly certain. In view of this, the 
 election of a Democratic House of Representatives would precipitate upon the coun- 
 try dangerous burdens. Among these schemes is the intention to attempt the revolu- 
 tionary expulsion of the President from his office, the payment of the rebel claims and 
 war debt, the payment of the full value of all emancipated slaves, and the unlimited 
 issue of irredeemable paper currency in place of the present redeemable paper money, 
 which was issued by authority of a Republican Congress, and by the same party has 
 been sustained, thereby preserving the national honor and credit. 
 
 Please remit at once, &c. 
 
 Johnson admits (page 42) that copies of this circular were sent out to 
 about fifty persons, and that money was received in reply, but he re- 
 ' fuses to state who it was sent to, and he does not remember what amount 
 was received in response to this appeal. 
 
 This circular proves three things : 
 
 1st. That the Republican committee was collecting money for political 
 purposes. And while there is no testimony to show that the particular 
 money received in response to this circular was used for corrupt pur- 
 poses, there is evidence which abundantly establishes the fact that 
 money, derived from some source, was employed in buying voters. 
 
 L'd. That Mr.Washburn's committee regarded and treated Mr. Don- 
 nelly as a Democratic candidate, and entitled as such to the Democratic 
 vote of the district. 
 
 3d. That they were willing not only to admit Mr. Donnelly's democ- 
 racy, but to charge him wirh being so extreme a Democrat that IK J would 
 join in the most revolutionary designs of his party: and they make their 
 appeal to the lowest passions and prejudices of human nature, by charg- 
 ing upon the Democratic party of the nation preposterous designs 
 which it had never contemplated or advocated. 
 
 Louis Kuudson, of Minneapolis, testifies (page 161, printed testimony) 
 that he was paid $5 by his employers, Barnard & Cope, active Repub- 
 licans, to work for Washburn. He worked and voted for him. His
 
 DONNELLY VS. WASHBURN. 451 
 
 fellow-workman Louis Paulson did the same kind of work, and also re- 
 ceived $5; he, Paulson, saw it paid. 
 
 John C. Oleson testifies (page 02) that Win. Chase asked him to vote, 
 for Washburn. He paid him 8- to work at the polls for Washburn, and 
 he did so work and vote. This Wm. Chase was the same party who 
 induced Shagren to go to Washburifs office in search of "a job." 
 
 Emil Shagren testifies (page 16) that Ole Mahla admitted to him that 
 he got 825 to vote for Washburn. Mahla denies this in part (page 117), 
 but admits that he did receive 825 from some one for working at the 
 polls. He declines to say whether he peddled tickets with Washburn's 
 name on them. He refuses to say who paid him the money. He pre- 
 tends that he voted for Donnelly. 
 
 Shagreii also testifies (page 16) that Sevit Mahla told him that he had 
 been paid to vote for Washburu, but did not state the amount. Also 
 that Daniel Getchell told him that he had received $20 for voting for 
 Washburn. Getchell denies this (page 80), but he refuses to say what 
 he did say to Shagren. He admits that he received money for his serv- 
 ices at the election, but claims that it was not from Mr. Washburn, 
 and that he voted for Donnelly. He refuses to tell who paid him. 
 
 Domiuick M. Guertin (page 04) testifies that Karl Fintler told him 
 that he had received a sack of Washburu flour for voting for Washburn. 
 
 Louis N. Gaynor, of Minneapolis (page 206), admits that he received 
 money for his services on election day, but declines to say who paid it 
 to him ; and he declines to answer whether he voted for Mr. Washburu 
 or worked for him ; but he admits he peddled tickets with his name on 
 them. 
 
 Peter Engberg, of Minneapolis (page 207), admits that he received 
 money for election purposes ; that he voted for Waslibimi ; that he 
 worked for him, and that he was paid for his services on election day. 
 
 John Smith, of Minneapolis (page 131), swears that Peter Quady, a 
 saloon-keeper, told him he had received $35 for voting his boarders for 
 Mr. Washburn. 
 
 Peter Quady (page 201) admits that he told Smith that he received 
 $5 and was to receive $20 more ; that he induced Smith to vote and 
 gave him a Washburn ticket; several of his boarders voted for Wash- 
 burn; but he pretends the money was not paid in the interest of Wash- 
 burn ; he voted for Washburn. 
 
 Win field S. Leach (page 158) testifies that Quady ottered him $10 if 
 he would vote for Washburn. Leach refused the offer. 
 
 Hon. Charles Hoag, a leading Democrat of Heniiepin County (see page 
 90), was requested by a Democratic worker for Washburn to state what 
 sum of money, put into his hands, would induce him to vote for Wash- 
 burn. Hoag refused the bribe and voted for Donnelly. 
 
 Thomas G. llees. of Minneapolis (page 146), testifies that Frederick 
 Puhler told him that he was hired to canvass, " travel, and treat" for 
 Washburn, and was paid $35 per week and $10 a day for money spent 
 in treating: and that there was a man similarly employed in each of the 
 fifteen precincts of the city of Minneapolis. 
 
 Thomas Malloran, hotel-keeper. Minneapolis, testifies (page 110) that 
 he is a Democrat: that he was paid $5 by a Dr. Evans, with which 
 u to treat the boys." and he agreed to work and vote for a Republican 
 candidate named by Dr. Kvans; it was not Mr. Washburn; and he 
 claims that he. Ilalloran, voted for Donnelly. 
 
 The following is a summary of the cases of bribery or attempted 
 bribery referred to in the foregoing testimony:
 
 452 DIGEST OF ELECTION CASES. 
 
 Cases where the money was paid by the sitting member, or his business manager or the clerk 
 of his Congressional committee, or some friend, and the parties voted for sitting member. 
 
 At the wood-camp at Tamarack River, 90 wood-choppers and 2 trappers, total.. . 92 
 
 Webster and White, the contractors 2 
 
 Bernard Cloutier 1 
 
 Railroad hands at work at round-house, Crookston, Polk County 35 
 
 Railroad hands who came to Crookston on hand-cars lt> 
 
 Railroad hands who voted at Crookston with Johnson 17 
 
 Railroad hands who voted at Two Rivers 74 
 
 Balance, of D. M. Robbius's railroad hands who vote at Tamarack River 15 
 
 J. V. Brower and the men he bribed, to wit, George Geissel, Thomas Kittowski, 
 
 and Henry Armstrong 4 
 
 Wm. M. Leyde 1 
 
 Henry Monroe 1 
 
 Abraham Werrick 1 
 
 Oluf Larson 1 
 
 Christian Heyer 1 
 
 Toleff G. Fladeland 1 
 
 William Witherall 1 
 
 Sloan 1 
 
 A. M. Schaack 1 
 
 Wm. R. Metcalf 1 
 
 Louis Kundson 1 
 
 Louis Paulson 1 
 
 John C. Oleson 1 
 
 Ole Mahler 1 
 
 Scvit Mahler 1 
 
 KarlFintler 1 
 
 Louis N. Gaynor 1 
 
 Peter Eugberg 1 
 
 Peter Quady 1 
 
 Fred. Puhler and the 14 canvassers similarly engaged iu the other 14 precincts of 1 
 
 Minneapolis 15 
 
 Mr. Buss, treasurer of Todd County 1 
 
 291 
 
 Cases where bribes were offered but not accepted, or where, if accepted, the party bribed 
 claims that he voted for Donnelly. 
 
 Emil Shagren 
 
 1 
 
 John Fleckenstein 
 
 1 
 
 Peter Viruig 
 
 1 
 
 Charles Berens 
 
 1 
 
 Milo Porter 
 
 1 
 
 John Flaherty 
 
 1 
 
 O. B. Wergedahl 
 
 1 
 
 John Guirv 
 
 1 
 
 Julius Bjornstad 
 
 ,---- 1 
 
 Daniel Getchell 
 
 1 
 
 Winfield 8. Leach 
 
 1 
 
 Charles Hoa<r *. 
 
 1 
 
 Thomas Hallorau 
 
 1 
 
 
 13 
 
 Total 304 
 
 But this is not all. The testimony reveals the names of only six of 
 the parties who were bribed by J. V. Brower, of Saint Cloud, in his 
 canvass of Todd and Morrison Counties, and to these six men he paid 
 out only $100, but he testifies that he may have similarly employed a 
 hundred parties, and he does not know whether he paid out $50 or $500. 
 In the case of William M. Leyde, another of the agents sent out by 
 \\ ashburn, we have the name of only one of the men he hired to work 
 at the polls, Henry Monroe, while it is hi evidence that he canvassed 
 nearly every town in the county and hired a number of men whose
 
 DONNELLY VS. WA8HBURN. 453 
 
 names he refused to disclose. We find that at Crookstou there were 
 173 illegal votes, and the testimony shows that <>8 of these were rail- 
 road hands who were all paid for their votes. The probability is very 
 great that the larger part of the other 105 votes were cast by railroad 
 hands similarly paid for their votes. 
 
 In Minneapolis the whole atmosphere was clouded with bribery. The 
 evidence shows that large sums of money, many thousands of dollars, 
 had been spent for corrupt purposes. A startling revolution in the po- 
 litical feelings of the voters was accomplished on the eve of the election, 
 and all the testimony indicates that this was brought about by bribery 
 and intimidation. There was no attempt on the part of the sitting 
 member t-> account for this extraordinary revolution, or to answer the 
 testimony showing bribery. 
 
 It must not be forgotten that bribery is a secret crime; both the parties 
 to it are equally interested in keeping it secret : and when detected both 
 are ready to give ingenious explanations of it. If they have acknowl- 
 edged to third parties the receipt of the bribe, they are ready to declare, 
 when called to the witness-stand, that they were in favor of the bribe- 
 giver before the money was oft'ered : or that they voted for his opponent ; 
 or that the money was paid by some one else, some nameless party, for 
 some other purpose. 
 
 Under these circumstances when it is shown that in an election over 
 300 cases of bribery and attempted bribery are proven, the presumption 
 is not violent that for every case that was, by accident or the indiscre- 
 tion of the parties, brought to the light there were others that were 
 never revealed. 
 
 The records of the contested-election cases ofCougress will be searched 
 in vain for a parallel to this case. It shows that the people of this Con- 
 gressional district were debauched to the last degree; the witnesses in 
 many cases defend the practice of buying up voters to forego their 
 principles : the parties who received the bribes in many instances 
 boasted to their neighbors of the money they had received, and seemed 
 to be proud of the high price for which they had sold themselves ; and 
 the sitting member did not think it at all necessary to call witnesses to 
 deny or explain away this overwhelming mass of corruption. Nothing 
 could testify more strongly to the degeneracy of the age and the depths 
 to which popular suffrage has fallen than the revelations made in this 
 extraordinary cv. 
 
 It is a clearly established principle of law, both in England and the 
 United States, that bribery committed by the sitting member, or "by 
 any agent of the sitting member, with or without the knowledge or di- 
 rection of his principal, renders the election void." (See Felton <*. 
 Easthorpe. 1 '.aw and Practice of Elections, 21.) 
 
 In England !: uiotis a character, and so utterly subversive 
 
 of the freedom of eiei tions. that, when j>rovrd to have lieen committed, though in one 
 instance only, and though a majority of nnhribed voter* remain, the election will he 
 .itely void. Cn-'.iing'- 1'ar. Law, }>. T , Ice*, Douglass, 11. 
 
 //, Peckiv. ie .'ii Kle ( -t ion-. 
 
 of election : ^ .{!:; DO6, 1>Y which the electors ar 
 
 strai: \vhieh their will is corrupted; and, in all cases, where the 
 
 ele 1 - vented in eitl- 't' their rights 
 
 t/.< (.'.., !<,.. trill l>t fold irUlumt ivfmncf to tli? number of vote* affnted thereby. (Cashing*! 
 Par. I 
 
 The same doctrine was arh'rmed by the House of Representath 
 the recent Platt t. 4 d Congressional district. Vir- 
 
 ginia. See Contested K!> -'7'. page ''"><>). ^ 
 
 The report, adopted by the House. <!
 
 454 DIGEST OF ELECTION CASES. 
 
 The bribed votes should uot be counted. The record furnishes no method for their 
 elimination. Their acceptance can only be avoided by applying the rule of law, so 
 well known and of such general adoption that it need scarcely be repeated here, that 
 when illegal and fraudulent votes have been proven, and the poll cannot be purged 
 with reasonable certainty, the whole vote must be rejected. 
 
 But your committee do not think it necessary to rest the decision of 
 this case upon this principle of law,. although they believe that the evi- 
 dence shows conclusively not only that bribery was committed in a 
 multitude of instances, but that a great number of these cases were 
 traced home to the sitting member. They are of the opinion that the 
 evidence shows that the contestant had a majority of the legal votes 
 cast and returned. 
 
 INTIMIDATION. 
 
 It appears that many of the voters who cast their votes in favor of 
 the sitting member were intimidated and coerced into doing so. The 
 testimony of Albert Church, (pages 224, 227) shows that the railroad 
 hands who voted for Washburu,at Crookston, told him that they were 
 compelled "to vote the way their boss, the railroad company, told them 
 to ; * * * they had to vote the ticket of their own boss." They 
 were led up in a body to the polls (page 226) by their foreman, Jacobus, 
 and he gave them the tickets they were to vote. Many of these men 
 were Democrats (page 224), and would probably have voted the Demo- 
 cratic ticket if they had been free from the coercion of the railroad com- 
 pany. 
 
 In Minneapolis this system of coercion and intimidation was carried 
 out systematically. The testimony shows that the employers of labor 
 in that city united to raise money to buy votes for Washburn (page 
 23) ; a circular was issued by the chairman of the Republican county 
 committee, urging business men to lay aside their business and devote 
 one day at the polls (page 100) ; large numbers of employers of labor, 
 including many who usually took no part in such work, were at the 
 polls working for Washburn (page 106) ; the workmen were sent for ami 
 brought to the polls by their employers and ballots were there placed 
 in their hands, folded, and voted by the employes without being opened 
 (page 108), the employer or his foreman following them to the polls to 
 see that they deposited them (page 97) ; many of the employe's declared 
 that they believed they would lose their means of subsistence if they did 
 not vote for Washburn (page 110) ; the employes of the North Star 
 Woolen Mill were brought to the polls in squads by the son of the pro- 
 prietor, Philip Gibson ; when a friend of contestant tried to give these 
 men ballots, Gibson jumped between them and tried to force the can- 
 vasser away, declaring that he had brought the men there himself, and 
 that most of the workmen voted as their employers wanted them to 
 (page 96). The foreman of this mill told one of the workmen (page 97) 
 that an employe of the mill had, at a previous election, voted in opposi- 
 tion to his wishes, and that he would take the same man to the polls 
 the next day, to wit, to the Congressional election in question, and if 
 he did not vote as he wanted him to he would discharge him. When 
 witnesses were called by contestant from among the employes of this mill 
 to testify in this case, the said foreman followed them to the notary's 
 office and remained there, while they were testifying (page 98). 
 
 The workman in the Minneapolis Harvester Works who were known to ln> Washburu 
 men were carried to the polls and returned; while those who could not 1>.^ induced 
 to vote, for Washbimi were not allowed to go, unless by losing their day's work, and 
 probably their situations. (Page t^. ) 
 
 In one case a witness, a, workman in a furniture shop, swears that he 
 was suspended from work the day after election because had he voted for
 
 DONNELLY VS. WASHBURN. 455 
 
 Donnelly, and because it was reported to his employer that he had ex- 
 pressed the belief that if Donnelly was elected the workmen would get 
 better wages ; ten days after election he was finally discharged. (See 
 pages 101-2). It appears 
 
 The vote of the city was very light. * A Large number of workman did not 
 
 vote at all. They were afraid of losing their jobs if they voted for Donnelly, and 
 they would not vote for Washburn. 1 Page ! 
 
 In seven precincts of Minneapolis the judges of election placed a mini - 
 ber on the back of each ballot to correspond with the number of the 
 voter on the poll -list. Let us consider the purpose of this numbering of 
 the ballots. 
 
 At the session of the legislature of Minnesota in January and Febru- 
 ary, 1S7S, a special law had been enacted, providing that in cities con- 
 taining more than 12,000 inhabitants the ballots should be numbered. 
 This law applied, and was intended to apply, only to the cities of Saint 
 Paul and Minneapolis, where the workingmen were very numerous, and 
 where alone the required population existed. It was felt by many that 
 this provision of law was oppressive and unconstitutional, and at the 
 spring election in Saint Paul, held immediately after the law was passed, 
 a party offered to vote without having his ballot numbered: he was re- 
 fused, and he brought an action at once in the district court of Ramsey 
 County, in .which Saint Paul is situated, to test the validity of the act. 
 The court decided (see Brisbiu vs. Cleary et al., printed testimony, page 
 74) that the act was unconstitutional, inasmuch as the constitution of 
 Minnesota, section 6, article VII, provides that " all elections shall be 
 by ballot"; that the ballot implies secrecy, and that this law requires 
 every man "to vote, in effect, a ticket with his name indorsed on it"; 
 and in case of a contest the ballots are to be made public. "This law," 
 says the court, ' furnishes the means of ascertaining exactly how every 
 elector voted : that /\ its acknowledged purpose" 
 
 This decision of the district court of Ramsey County was the unani- 
 mous decision of a full bench of three judges; it was appealed to the 
 supreme court, and was affirmed by the supreme court subsequently to 
 the election. (See Xorthwestern Reporter, vol. 1, page 75, foot page 
 825, Brisbin vs. Cleary et al., being an appeal from the district court of 
 Ramsey County, in the same case referred to above.) The supreme 
 court sustain the decision of the district court of Ramsey County, and 
 say : 
 
 The statutory provision with regard to the numbering of tickets, above quoted 
 clearly interferes with and violates the voter's constitutional privilege of secrecy. It 
 is therefore an unconstitutional provision. The voter cannot be required to submit 
 to its application the ticket offered by him. * The defendant's demurrer was 
 
 properly overruled, and the order overruling the same is accordingly affirmed. 
 
 This decision was made subsequently to the election in controversy, 
 but is it not retroactive in its effect upon this case .' 
 
 It declares that the word "ballot'' means secrecy and absence of every 
 external mark whereby the elector who has cast the same can be iden- 
 tified. A ticket identified by placing the voter's name, or a number in- 
 dicative of his name upon it. is not a "ballot" in the sense of the con- 
 stitution; and has. therefore, no right to be placed in the ballot-box. 
 When the court decided that such identified tickets were not "ballots" 
 it certainly follows that they are not entitled to be counted as -'ballots." 
 
 Briefly stated, the argument may be thus summed up: 
 
 1. Members of Congress can only be elected in the State of Minnesota 
 by < ballots." 
 
 2. A numbered ticket is not a "ballot." 
 
 3. Such numbered tickets, therefore, cannot be counted.
 
 456 DIGEST OF ELECTION CASES. 
 
 They are simply attempts to vote, but are by election officers deprived 
 of that constitutional element of secrecy which is necessary to enable 
 them to be counted as " ballots." 
 
 But it is not necessary to rest the decision of this case alone upon, 
 this ground. The conclusion we have reached is based on broader founda- 
 tions, which reach the bona Jides of the election in the precincts where 
 those ballots were numbered. Not only were the numbered votes cast 
 in those precincts unconstitutional and void, but they were so numbered 
 for a corrupt and dishonest purpose, and were incompatible with an 
 honest, fair, and free election. 
 
 All lawyers will concur that the decision of the district court was- 
 highly persuHsive of, if not sufficient to control, the judgment of election 
 officers in their action touching the validity of the statute in question. 
 And we accordingly find (see Daily Globe, November o, 1878, report of 
 proceedings, offered in evidence) that in the city of Saint Paul the 
 judges of election met the day before election, took counsel with the law 
 officer of the city, and decided not to number the ballots. They took 
 this course under the advice of the attorney-general of the State (as ap- 
 pears by said paper), of the county attorney of Ramsey County, of the 
 city attorney of Saint Paul, and even of the counsel who had defended 
 the law before the district court. These parties, the attorneys for the 
 city and county, and the attorney defending the act, united in a card ta 
 the public advising election officers not to number the ballots. (See 
 Saint Paul Pioneer Press, October 27, 1879.) 
 
 A similar meeting of the judges of election was held the day before 
 the election in the city of Minneapolis (see page 134). They called upon 
 the city attorney for his opinion on the question of numbering the bal- 
 lots, lie told them that the district court of Kamsey County had de- 
 cided that the law was unconstitutional, and that it was his opinion, 
 also, that such numbering destroyed the secrecy of the ballot and was 
 unconstitutional. u They finally took a vote as to how they would con- 
 duct the election in that particular," and " decided in favor of disre- 
 garding the law," and that they would not number the ballots. The 
 vote stood thirteen or fifteen against eight or ten (page 143). 
 
 It was thus resolved in both the cities to which alone the law applied 
 that the ballots should not be numbered. This was considered a tri- 
 umph for the supporters of Mr. Donnelly, and accordingly, the Saint Paul 
 Daily Globe, the Democratic paper of that city, which was supporting 
 Mr. Donnelly, announced this action in its issue of the next morning, 
 which was the morning of election, in these words: 
 
 (From the Saint Paul Daily Globe, November 5, 1878, Exhibit B, E. A. H., on tile in office of clerk of 
 
 Committee on Elections.] 
 
 MINNEAPOLIS NEWS. 
 
 NO NUMBERING. 
 DEMOCRATS, WOKKJNGMEN, AND NATIONALS. 
 
 THERK 18 NO FEAR OF LOSING YOUR SITUATIONS. (JIVE WASHBURN A BLACK EYE. 
 YOUR EMPLOYERS CANNOT FIND OUT HOW YOU VOTE. 
 
 The judges of election met at the Council chamber at 3 o'clock yesterday afternoon 
 to consult as to whether it would be legal, after the recent decision of the Kamsey 
 County Court, to number the ballots. After consulting the best legal talent of the 
 city, it was determined to receive the votes as of old, and deposit without placing the 
 numbers opposite the different names. 
 
 This makes the thing all s.-ciirc ! Now. hoy*. <i> to the polls and vote as you plea.-!' '.' 
 
 The bulldozers can't rob you of your plan-*. 
 
 Vote for Donnelly, and down with all
 
 DONNELLY VS. WASHBURN. 457 
 
 111 Saint Paul the .same paper announces the resolution of the judges 
 not to number the ballots under a head-line. Xo NUMBERS A FBKK, 
 UNTRAMMELED BALLOT !" 
 
 This, it will be remembered, \vas contemporaneous history; it shows 
 that it was understood at that time, before any contest could have been 
 contemplated by contestant, that the numbering of the ballots would 
 result in the intimidation of the workiugmen who were in favor of Don- 
 nelly ; and that if the ballots \\vre not numbered Donnelly would secure 
 a larger vote among the workingmen. 
 
 This newspaper, it is >hown. reached Minneapolis before 7 o'clock 
 on the morning of the election, and it had a large circulation in that 
 city (see page 4(, questions !>, lo, 11, 12). It, doubtless, aroused the 
 friends of the sitting member to action; for we find that by i) o'clock r 
 the hour at which the polls opened, a decision had been reached to num- 
 ber the ballots in seven out of fifteen election precincts of Minneapolis. 
 It is charged by contestant in his brief that these precincts were largely 
 inhabited by workingmen ; and this statement was not denied by the 
 counsel for the contestee in his brief. It appears (page 181) that in one 
 precinct (second, of the fourth ward;, all the voters were workingmen; 
 and the returns of the votes of previous elections show that a large- 
 Democratic vote was cast in these precincts. 
 
 If the numbering of the ballots had been the result of an innocent 
 mistake on the part of the judges of these seven precincts ; if they had 
 been ignorant of the decision of the district court of Ramsey County 
 declaring such numbering unconstitutional ; if there was no evidence to 
 show fraud or intimidation, we should not be in favor of casting out the 
 votes of these precincts simply for the reason that the ballots had been 
 numbered. This was the view taken by the election committee in the 
 ease of McKt-ii/ie r.v. liiaxton, seventh district Virginia (Contested 
 Elections, 1871-'7G, page 20). The committee (McCrary, chairman), 
 says : 
 
 Although it would be possible, froui the numbering of the ballots, to ascertain how 
 
 iici -son voted, it is not claimed iu this casi- that this was doue, or that the tieketa 
 were voted for any such purpose, <>r for any improper or uulavvftil purpose whatever. 
 
 The question of intent, therefore, is the true question at issue, and all 
 the circumstances in the case under consideration point to a corrupt 
 intent : 
 
 1. A cloud of bribery surrounds the vote of the whole city, which the- 
 coutestee has made no effort to dissipate. 
 
 2. There is evidence showing a widespread conspiracy among the em- 
 ployers of labor to corrupt and, where they could not corrupt, to intimi- 
 date their workmen. 
 
 3. The testimony shows that the workmen were intimidated, and that 
 they believed that they would lose their means of subsistence if they 
 voted against Washburn. 
 
 4. The judges of election knew that the numbering of the ballots had 
 been declared unconstitutional by a court of record second only to the 
 supreme court in dignity; by the attorney-general of the State; by the 
 city attorney of Saint Paul; and by the county attorney of Ramaej 
 County; and that even the attorney who had defended the constitu- 
 tionality of the law in the district court had advised judges of election 
 not to number the ballots. 
 
 5. They had been told by their own law officer, whose opinion they 
 had requested, that it would be unconstitutional to number the ball 
 inasmuch as it violated the secrecy of the ballot. 
 
 (). They knew that the supporters of Mr. Donnelly believed that the
 
 458 DIGEST OF ELECTION CASES. 
 
 numbering of the ballots would prevent a free and fair election, and 
 would result in the intimidation of the workmen. 
 
 7. They had deliberately voted by a large majority not to number the 
 ballots. 
 
 There can be but one explanation of the intent with which they re- 
 versed this deliberate action. It was done to prevent a fair election, 
 and to give the employers of workingmen an opportunity to still further 
 intimidate them by preserving a record of how the men voted whose 
 means of life depended upon the good-will of those whoemployed them; 
 the workingmen well knew that the ballot-boxes could be opened at 
 any time in any real or pretended contest and the character of their 
 votes revealed. 
 
 Only bold and reckless men would have dared to set their private 
 judgment, as laymen, against the judgment of the district court of liam- 
 sey County, against the judgment of the attorney-general and of the 
 law offices of their own city, upon a question of law, and against the 
 opinions of two-thirds of the judges of election as expressed at the meet- 
 ing of judges the day before. In doing so they ran counter to and de- 
 fied the settled opinion upon the question. These seven precincts were 
 the only precincts in the two cities Saint Paul and Minneapolis where 
 there were over thirty precincts in which the ballots were numbered 
 in the year 1878. 
 
 It must be remembered that the testimony shows that among the 
 twenty-one judges of election of these seven precincts, who thus re- 
 versed tqe action of all the judges of the city of the day before, there 
 was but one judge who was a friend of Mr. Donnelly (see pages 195- 
 197) ; and even he did not swear that he was a supporter of Mr. Donnelly, 
 but only that he was "understood "to be .such ' v see page 13(i). By law 
 Mr. Donnelly, as the candidate of two political parties, should have had 
 fourteen supporters among these twenty-one judges; in effect, he had 
 not one. (See section 1 act of March 12, 1878.) This extraordinary 
 action was therefore taken by twenty-one judges who were the political 
 partisans of Mr. Washburn ; and no explanation is offered by Mr. Wasli- 
 burn or themselves for their course. 
 
 The very fact that in these seven precincts Mr. Donnelly had been 
 deprived by the city council of Minneapolis of all representation among 
 the officers conducting the election is, in itself, a very strong proof of 
 conspiracy and fraud. 
 
 It appears by the testimony of one witness, a Democrat (page 137), that 
 he offered his ballot at one of these precincts and requested that it be 
 placed in the ballot box without being numbered; this was refused; the 
 judges refused to permit him to vote unless he voted a numbered ballot; 
 this he declined to do, and he did not vote. It appears that large numbers 
 of workmen did not vote for fear of losing their places (p. 113). It is an 
 est ablished principle of law that where voters are kept from voting by an 
 illegal requirement of the election officers, it voids the election at such 
 polls. (See McCrary's Ainer. Law Elections, section 89; Scran ton 
 Bordtigh Election, Brightly's Election Cases, page 455.) It is evident 
 that large numbers of Democrats, from some cause, did not vote at all 
 at said election in that city. 
 
 Two years previously, at the Presidential election of 1876, the vote of 
 Minneapolis stood as follows (see Saint Paul Pioneer-Press, November 
 9, 187G, in Congressional Library) : 
 
 Hayes 4."SH 
 
 Tildcti 3,743 
 
 Total .. . 7.841
 
 DONNELLY VS. WASHBURN. 459 
 
 It is a matter of history that Minneapolis increased during the two 
 years between November, 1*76. anil November. L878, at the r.-ite of 11 
 per cent, per annum (see Minnesota Stare Hcgister. l^TM. Congressional 
 library, page 31(3). If \ve apply this percentage of growth to the vote 
 of 187(5. and suppose that the two political parties increased pro rata, 
 then the vote should have stood in 1878 as follows : 
 
 'I .it a I Democratic vote ; 
 
 Total Republican vote, , 
 
 But instead of Mr. Donnelly receiving, in 1878. i, 5JS votes in Minne- 
 apolis, lie received but 1,56'i votes: a falling off of 3.002 votes. And it 
 appears that but a small part of this Democratic vote went to Mr. Wash- 
 burn ; for, if he received the full vote of his party, he should have had 
 4,99!> votes, while he claims to have received 5.026 votes : a gain of only 
 4 J7 votes. 
 
 It thus appears that there were nearly 3,000 Democratic voters who 
 <lid not vote at all at the election of November 5. 1878. 
 
 The result was that, instead of the Republican majority given to 
 President Hayes in Minneapolis of :.V votes, VYashburn claims to have 
 carried the city by .",(IS(i vo: 
 
 The evidence shows that Mr. Donnelly was the Democratic candidate 
 for Congress, and that he received the support but not the votes of very 
 nearly all the Democrats, even in Minneapolis (see pages 109,110'); the 
 immense falling off of two-thirds of the Democratic vote in Minneapolis 
 can. therefore, only be accounted for by the intimidation of the workmen, 
 and the numbering of the ballots in nearly half the precincts of the city 
 v/as part of this system of intimidation. 
 
 The evidence shows that the workingmen of the city regarded Mr. 
 Donnelly as their friend and champion (page 112). They had a Labor 
 Tnion, a political society, numbering about 1','JOO members ipage 111 . 
 and which represented the sentiments and feelings of the working popu- 
 lation of the city, numbering between 4,000 and 5,000 (page 112); Mr. 
 "NVashburn "had no friends in the Labor Union" (page 111); and the 
 Union nominated Mr. Donnelly for Congress, at a large meeting, by a 
 unanimous vote. The workiugmen continued to support Mr. Donnelly 
 until the day before the election (pages 141, 142). The evidence shows 
 that a great revolution was wrought in the action of the Democrats on 
 the eve of the election : a revolution which several witnesses state 
 could only be explained by the use of money and intimidation (pages 
 98, 1013, 141. 142, l>77. &0. . Instead of receiving the 4,000 or 5,000 
 votes of the workingineu. or the 4,568 votes of the Democrats, to say 
 nothing of the Greenback vote, Mr. Donnelly received but 1,566 v. 
 in the entire city. 
 
 In the seven precincts where the ballots were numbered the vote stood 
 as follows : 
 
 
 _ 
 
 2 
 
 E 
 
 --. 
 
 ;? p 
 
 Wanl. 
 
 - 
 
 
 1 
 
 
 
 - 
 
 * 
 
 - 
 
 - * 
 
 
 
 187 
 
 42 
 
 
 
 Sei-omi 
 
 
 42 
 
 223 
 
 Fourih 
 
 Fil8'.- 
 
 334 
 
 
 
 
 SlM-IIIIll 
 
 
 .)! 
 
 290 
 
 
 Third 
 
 566 
 
 - 
 
 483 
 
 Sixth 
 
 
 364 
 
 
 
 
 Third. 
 
 
 
 143 
 
 Tntjvl m.iinritr fV>r Wailihnni in thfsfi nrerinrtrt .. 
 
 
 
 
 1,760
 
 460 DIGEST OF ELECTION CASES. 
 
 If we compare this vote with the vote cast in these same precincts 
 seven months previously, to wit, at the municipal election of April 2, 
 1878, we find that the Republicans carried these seven precincts at that 
 spring election by a total majority of 171, or 1.689 votes less than the 
 majority claimed for Wash burn. 
 
 At the same election, in the spring of 1S78, the Republicans had but 
 164 majority in the city of Minneapolis; and yet they claim to have- 
 carried the city, seven months thereafter, by 3,680 votes. 
 
 In these seven precincts the vote at the spring election ^>f 1878 was 
 as follows : 
 
 Republican 1,215 
 
 Democratic 1 , 044 
 
 Total 
 
 At the Congressional election, November 5, 1878, the vote in these 
 seven precincts was as follows : 
 
 Washburn .................................................................. . 
 
 Donnelly ................................................................... ."V22 
 
 V. -04 
 
 Thus while the vote in the fall was but 545 more than it was in the 
 spring, the Republican majority was ten times as great : 
 
 Republican majority spring of 1878 171 
 
 Republican majority fall of 187- 1. 7Ct> 
 
 The total vote of the city in 1876 at the Presidental election was 
 7,841. If now we add 22 per cent, for the increase of population, the 
 total vote in 1878 should have been 9,566 ; instead of that it was 6,592, 
 a falling off of 2,964. 
 
 In round numbers the vote cast in 1878 was 52 per cent. less than the 
 actual vote of the city. It is conceded that the canvass of 1878 was 
 one of the most vigorous ever made in the city (page 106-7) ; but while it 
 brought out the full Republican vote, nearly 3,000 Democrats failed to 
 vote ; or if any considerable part of them voted for Washburn, then an 
 equal number of Republicans must have refused to vote for him. There 
 cau-be no question that a large part of these men were the employes, 
 who feared to vote for Donnelly lest they should lose their places. 
 
 It cannot be claimed that Mr. Washburu increased the Republican, 
 vote of the city from 355 to 3,680, and the Republican vote of the seven 
 precincts from 171 to 1,760 because of his personal popularity ; because 
 it is in evidence that he was not popular (see pages 111, 277). A com- 
 parison of his vote in the district outside of Minneapolis, with the vote 
 cast for IJayes in 1876, proves that he was very unpopular. The vote 
 stands as follows : 
 
 Hayes, 1876 }<,:>73 
 
 Waehburn. 1878 14, (08 
 
 Washburn ran behind Hayes 4, 915 
 
 But, if from Washburn's vote there be deducted the railroad, bribed, 
 and illegal vote of ' Polk and Kittsou County/' 355 in all, he will be found 
 to have run behind Hayes in the district, outside of Minneapolis, o.L'TO 
 votes, in a total vote of 19,573. 
 
 On the contrary, Mr. Donnelly's vote compares favorably with the 
 total vote for Tilden and Cooper, in the district exclusive of Minne- 
 apolis, thus :
 
 DONNELLY Vs. \VASH HURV. 461 
 
 Tilden and Cooper 16, 126 
 
 Donnelly's vote l.~>. 926 
 
 Add tor \ <-ti--> of I'olk and K' 
 
 16,281 
 
 Donnelly runs ahead of Tildeu and Cooper 155 
 
 Xow we are asked to believe that while Mr. Washburn fell behind 
 Hayes's vote outside of Minneapolis r.i'7< votes, that he ran ahead of 
 Hayes in Minneapolis 3. la") \-tes! And'this. notwithstanding the fact 
 that the ]>o])iilation of Minneapolis consists largely of workingmen, who 
 had placed Mr. Donnelly in nomination ;is their candidate for Congress, 
 and among whom, it appears, Mr. Washburn "had no friends." And, 
 notwithstanding the further fact, that Minneapolis may be regarded as 
 debatable ground, politically. In 1870 the Democratic candidate for 
 Congress. McNair, carried the city by about 500 majority, and the county 
 by over 1.000 majority. In April. 1870. the Democrats and working- 
 men elected a Democratic mayor in Minneapolis by 350 majority, and 
 carried the wards embracing the territory now embraced in the seven 
 wards where the ballots were numbered by ~r2~> majority. The vote 
 Mood therein : 
 
 Democrats 1,:*?2 
 
 Republicans 847 
 
 Democratic majority 
 
 The testimony produces the conviction that Mr. Donnelly was sweep- 
 ing the district outside of Minneapolis and carrying all before him; that 
 he was popular in Minneapolis, especially among the workiugmeu, and 
 that the workingmen constituted a majority of the total population. 
 That in this emergency the sitting member and his friends formed a 
 conspiracy to arrest the tide of defeat by bribery and intimidation ; and 
 that their last intrenchment was the seven precincts where, in effect, 
 they made the workiugmen vote rh-a roce for Washburu or take the 
 chances of starvation. And it is a singular and suspicious circumstance 
 that the vote of two of these seven precincts, two precincts where Wash- 
 burn claims 700 majority, were not returned until eight days after the 
 election, although they should have been returned on the morning after 
 the election ; and then when they were returned one of the two pre- 
 cincts is claimed for Washburn by 483 majority, while one of the clerks 
 of the election therein, produced the original tally-sheet of the elec- 
 tion, showing but L'O majority for Washburn in that precinct instead of 
 1^.'>. (See page L'7">.j And when the counsel for Washburn, in the per- 
 formance of his professional duty, subpoenaed the otlicers in charge of 
 the ballot-boxes to produce the ballots of these precincts, knowing, as a 
 lawyer, that that was the best and therefore the proper legal evidence of 
 the actual vote cast : and when the officers stood ready to have the vote> 
 counted, the contestee held his counsel back, and permitted the ballot- 
 boxes to be returned unopened. Was this done because he preferred to 
 risk the throwing out of 700 of his majority rather than have the secrete 
 of those ballot-boxes, when the votes had been numbered, revealed to 
 the public eye? What powerful motive could have constrained him to 
 such a course t 
 
 I i Williams*- -I id. R.--.., ;, ;i> r.- ,R)). the c.mr: held that nunib.riii<rothf votei 
 
 cast violates the MVIVCV of the ballot as much as if the law hail ivipiin-d :': voters 
 to vote rir roc*; and MH'niiy American Law of Elections, section 
 Votes must be cast in the manner provided by law. Under a statute requiring that 
 the manner of voting shall !> by ballot, votes given riva roce cannot be counted." 
 
 Upon an elaborate revi.--* of the authorities the conclusion is reached, upon what 
 seems to be good ground, that iti this country the ballot implies absolute and inviola-
 
 462 DIGEST OF ELECTION CASES. 
 
 ble secrecy, and that this doctrine is founded in the highest considerations of public 
 policy. That the term ballot implies secrecy, and that this mode of voting was. 
 adopted mainly to enable each voter to keep secret his vote, is clear. (McCrary on 
 Elections, section 413, page 112, and authorities there cited; Cooley, Constitutional 
 Limitations, pages 506, 507, and 604. ) 
 
 The chief reason for the general adoption of the ballot in this country is that it af- 
 fords to the voter the means of preserving the secrecy of his vote. And this enables 
 him to vote independently and freely, without being subject to be overawed, intimi- 
 dated, or in any manner controlled by others, or to any ill-will or persecution on ac- 
 count of his vote. The secret ballot is justly regarded as an important and valuable 
 safeguard for the protection of the voter, and particularly of the humble citizen 
 against the induence which wealth and station may be supposed to exercise. * * * 
 All devices by which the secrecy of the ballot is destroyed by means of colored paper 
 used for ballots, or by other similar means, are exceedingly reprehensible, and whether 
 expressly prohibited by statute or not should be discountenanced by all good citizens. 
 (McCrary on Elections, section 194; People vs. Pease, :27 X. Y., pages 45 and 81). 
 
 We have therefore reached the coiiclusiou that the votes cast in the 
 seven precincts where the ballots were numbered should be deducted, 
 not alone because they were so numbered, but because such numbering 
 was corruptly done, with an intent to intimidate the workiugmen resid- 
 ing in those precincts ; and because it was part of a general conspiracy 
 of the friends and supporters of Mr. Washburn to prevent a free and 
 untrammeled expression of the preferences of the voters. 
 
 SUPPLEMENTAL RETURNS. 
 
 Through the error of the secretary of state of Minnesota iu notfurnish- 
 ing the proper return-blanks to the officers of the election precincts of 
 the State, there were a number of instances where the votes polled for 
 the candidates for Congress were not returned to and counted by the 
 county canvassing boards. In the case of the votes not so returned and 
 canvassed in certain precincts of the counties of Stearns and Morrison 
 it was conceded and agreed by both parties that the votes had been 
 cast and should be counted. These votes were as follows (see pages 
 260, 284) : 
 
 STEARNS COUNTY. 
 
 Precinct. 
 
 Waahburn. 
 
 Donnelly. 
 
 Crow Lake 
 
 7 
 
 11 
 
 Holding . . 
 
 26 
 
 64 
 
 Township of Saint Cloud 
 
 7 
 
 93 
 
 Sank Centre 
 
 96 
 
 160 
 
 Fourth ward, city of Saint Cloud 
 
 - 8 
 
 68 
 
 
 
 
 Majority for Donnelly 
 
 144 
 
 396 
 252 
 
 
 
 
 MORRISON COUNTY. 
 
 Two Rivers. 
 Swan River. 
 
 30 120 
 38 45 
 
 68 165 
 Majority for Donnelly i 97 
 
 Supplemental returns were made eight days after the election by some 
 of the officers of three precincts of the city of Minneapolis ; but it is 
 very clear tbat the election officers of the precincts had performed their
 
 DONNELLY VS. WA.SHLURN. 46$ 
 
 duties oil the night of the elect ion : had dissolved, and \\wfu net us of- 
 ficio, and had no right to make any such supplemental returns. Mr. 
 Washburu claimed majorities in each of these precincts, and lie therefore 
 undertook to prove the votes c;ist ttliuit'ie. In strictness of law it \vas 
 his duty to have proved the votes cast by the best evidence, to wit, by 
 counting the ballots in the ballot-boxes : and he took some preliminary 
 steps to that end, issuing a xitbpa : )nt </<rr\ tecuin to the officers who had 
 charge of the ballot-boxes to appear at a time named, in order that the 
 ballots might be counted; but, as we have shown, for some reason 
 he refused to count the ballots. There was a wide diversity in the 
 evidence as to one of these precincts, the third precinct of fourth 
 ward, one side claiming that Mr. Washburn had a majority of 483 votes 
 mid the other side claiming that he had but 20 majority. But we have 
 not felt obliged to enter into these questions, inasmuch as two of these 
 precincts, viz, the second precinct of the second ward and the third pre- 
 cinct of the fourth ward, were precincts in which the ballots were num- 
 bered, and they have been already disposed of in our finding upon that 
 question. In the other precinct, the first precinct of the first ward, 
 there was a conflict of testimony as to what the vote really was ; but 
 the burden of proof establishes to our satisfaction that in this precinct 
 Washburn received 140 votes and Donnelly 132 ; and although this was 
 not established by the best evidence we are willing to admit the vote 
 ,i> such. 
 
 In the township of Leaf Valley, Douglas County (page 270), Mr. Don- 
 nelly received all the votes cast for Congressman, to wit, 61 votes ; they 
 were not returned or counted for him. These votes are to be added to 
 the respective candidates. 
 
 1SANTI COUNTY. 
 
 The statutes of Minnesota (section 19, page 58, revision of 1866) pro- 
 vide that the county canvassing board of each county shall consist of 
 the county auditor and two justices of the peace, to be by him. selected. 
 In the case of Isanti County the canvass was made, the votes counted, 
 and the return made by the county auditor, one justice of the peace, 
 and the judge of probate of the county. (See page 69, printed testimony.) 
 It is true that sub. 3, section 1, title 1, chap. 3, vol. 1, Bissell's Stat. of 
 Minn., provides that - words purporting to give a joint authority to 
 three or more public officers or other persons shall be construed as giv- 
 ing such authority to a majority of such persons or officers." If the 
 county auditor had selected two justices of the peace, and one had 
 failed to attend, then the majority present might, under this law, have 
 gone on and acted : but in the case of Isauti County the county auditor 
 did not select two justices of the peace as the law requijjed ; the board 
 of canvassers, therefore, was never constituted as required l.v law.- and 
 never having had a legal existence, there could be neither majority nor 
 minority of it. 
 
 In the contested election case of Howard vs. Cooper, of Michigan, 
 Thirty-sixth Congress (see Contested Elections, 1864-'65, page 282), the 
 Committee on Elections say: 
 
 YotUT committee ha Yd rejected the vote of the township of Van liuren. The law 
 requires that the board of inspectors shall be constituted of three prisons in number. 
 The proof is clear that there were but two. And as there was no board of inspectors 
 known to the law, your committee see no way by which any legal effect can be given 
 to the returned vote. They have therefore deducted it. 
 
 In this case it was shown that there was a statute of the State of
 
 464 DIGEST OF ELECTION CASK>. 
 
 Michigan precisely the same as that just quoted from Minnesota, giv- 
 ing a majority of a board the power to act for the whole board ; but the 
 committee did not consider that it was sufficient to permit them to re- 
 ceive and count the return. 
 
 But if we will suppose that the board of county canvassers of Isanti 
 County had been duly constituted as required by law, and that a ma- 
 jority had the power to act for the whole board, nevertheless the return 
 could not be received, for it appears upon its face that a third party, 
 not a member of the board, a stranger not qualified to act. an usurper 
 without color of authority, intruded himself into the deliberations of the 
 board and acted as one of them, and in all cases where the county au- 
 ditor and the justice of the peace differed in opinion he gave the casting 
 vote, and thus decided the action of the board. The statutes of Min- 
 nesota show that a judge of probate has none of the functions of a jus- 
 tice of the peace, and the constitution of the State (section 7, article VI) 
 provides that a probate court " shall have no other jurisdiction except 
 the estates of deceased persons and persons under guardianship." 
 There is no testimony to show that this judge of probate was at the 
 same time a justice of the peace, and if he had been, his exercise of the 
 office of justice of the peace would have been incompatible with the 
 spirit of the constitution of the State. 
 
 In the case of James Jackson vs. Gen. Anthony Wayne (Clark & 
 Hall, page 47), a Georgia case, decided in 1791, it was held that '-where 
 the law requires three magistrates to preside at an election, and a re- 
 turn was made by three persons, two of whom were not magistrates, 
 the return was defective," and the vote of the county was rejected. 
 
 In the case of Rufus E iston i^s. John Scott (Clark & Hill, page 272), 
 a Missouri case, decided in 1816, held : " If an election is required by law 
 to be held by three judges who are required to be sworn, and it is held 
 by two not sworn, their proceedings are irregular, and the votes taken 
 by them are to be rejected." 
 
 In the case of Sloan vs. Rawls (Contested Election Cases, 1871-'76, 
 page 144), a Georgia case, decided in 1874, it was held that a county 
 canvass or consolidated return of the vote of the county of Bullock (con 
 taiuing 1,061 votes), should be rejected, although the same was in due 
 form and with the names of the proper officers signed to it, because it 
 appeared that the canvass was made by a usurper, a stranger, a man 
 41 who had no legal connection whatever with the election, and no right 
 to the possession of any of the papers." 
 
 It is urged that although the judge of probate was not a justice of the 
 peace, we must regard him as such de facto. Lord Ellenborough said, 
 in The King vs. The Corporation of Bedford Level (6 East., 368) : 
 
 An officer de facto is one who has the reputation of being the officer he assumes to 
 be, and is not a food officer in point of law. 
 
 Charles O'Conor, in his argument before the Electoral Commission, 
 said (see Electoral Commission, page 132) : 
 
 The de facto officer is one who somehow has clothed himself with the reputation of 
 being the officer, and in relation to tbat person the law, with its wise conservation, has 
 
 ognize him and t>< act under him, and in conformity with his directions and his power, 
 shall be esteemed valid, that indiridnah may not be deceived by thi> >p:cios if disorder 
 or temporary insurrection that has broken in upon the functions of government. 
 
 The principle does, not apply to the case under consideration. 
 
 Here the judge of probate did not claim to be a justice of the peace j
 
 DONNELLY "R^. 4l>5 
 
 he did not exercise the duties of the office under color of law; he did 
 "not exercise them at all : he distinctly claimed that he was a judge of 
 probate and nothing else. It has never been pretended, in any court in 
 the world, that when A IJ as>erts himself to be the incumbent of one 
 office a presumption of law arises that he holds another, an entirely dif- 
 ferent, and (as in this case) an incompatible office. 
 
 A party claiming to be a judge of an election precinct, or a sheriff, or 
 a judge may deceive and mislead innocent third parties to their dam- 
 age ; and hence the law wisely says that lie who deals with such officers 
 shall not be required to go back and inquire into every particular of 
 their title. But in this case there is no pretense that any one was or 
 could have been misled by the declaration of the judge of probate that 
 he was the judge of probate. 
 
 Neither is this a collateral proceeding between third parties. The 
 validity of the return itself, and the right of the judge of probate t 
 ire. the very questions in issue. The canvassing board of Isanti County 
 was part of the machinery by which the votes cast for member of < 
 
 ^s in that district is to be brought to the knowledge of the House of 
 Representatives, ''the sole judge of the election returns of its meml^rs." 
 
 It must also be remembered that in the cases cited, as decided by 
 former Congresses, the votes of townships were cast out because the boards 
 of election judges, or the clerks thereof, were not constituted according 
 to law. This being the law as to mere precinct officers, how much more 
 strongly does the principle apply to the case of a canvassing board of a 
 county where the votes, not of one precinct alone, but of all the pre- 
 cincts of the county are involved ' An election judge can only rule out 
 a few voters, a canvassing board may rule out the votes of entire town 
 ships. Although the canvassing board is a ministerial body, neverthe- 
 there are many preliminary questions upon which they are called 
 to decide, and which require the exercise of their best judgment. 
 Among these are the following: Whether the returns are the actual re- 
 turns or forgeries; whether they are so informal or irregular as to pre- 
 vent the board determining what the vote really was; if two returns come 
 in from the same precinct, which is the proper return: if votes are cast 
 bearing a name nearly the same or somewhat similar to the name of 
 one of the candidates, whether they should be counted for such candi- 
 date; if votes are cast for A B (who is a candidate for Congress) as 
 a candid-ite for the State legislature, whether such votes should be 
 turned for him as a candidate for Congress. These and a hundred other 
 similar questions may arise requiring the exercise of judgment : and 
 per consequence the functions of the board of county can is as 
 
 -npeiior to the functions of mere election officers as the powers of a 
 State canvassing board are above the powers of a county canvassing 
 board. How important, then, does it become that the county board of 
 ' canvassers shall be constituted in strict conformity with law. and that 
 MO u-'.K'pers shall be permitted to intrude into and control its delibera- 
 tions. 
 
 In the ca '-I organ. <)hio(l' Bartlett, page 171), it seems 
 
 that a person acted as one of the judges of election who was believed 
 to have been a deserter, but had never been convicted of the crime. The 
 Committee on Elections say and the House sustained the report) : 
 
 In tin- case of Howard i 
 
 Bnren Township wen- rejerted beeanse tin-re wen- only two jiKl^-s. If ;i n-tnrn 
 trustworthy when one of tin 1 judges is absent, it i* certainly more so if the va> 
 is filled by a praon disqualified .|.etent .jndgesare certainly more re- 
 
 liable, when acting by themselves, than when advised, directed, and iu part 
 ruled by a third, pronounced by the law unfit for the trust. 
 
 H. Mis. T.s
 
 466 DIGEST OF ELECTION CASES. 
 
 In Morgan vs. Delano, the disqualification of this third party was in- 
 ferential ; for as he had never been convicted of desertion the presump- 
 tion of law was that he was not guilty ; but in the case of the canvass 
 ing board of Isauti County the disqualification of the judge of probate 
 was statutory, absolute, and appears on the face of the return. 
 
 If the objection to this return was purely technical we might hesi- 
 tate to reject it ; but it appears that the bona fides of the vote were put 
 in issue by the pleadings. 
 
 The contestant. Donnelly, in his notice of contest, article VIII, de- 
 clared : 
 
 That the votes alleged to have been cast for you (Washburn), at said election in 
 the county of Isanti, in said district, were not cast or counted for you, or returned or 
 canvassed as provided by law. 
 
 There are here four averments : (I) That the votes were not cast ; (2) 
 that they were not counted (by the precinct officers) ; (3) that they were 
 not returned as provided by law ; (4) that they were not canvassed as 
 provided by law. The contestant having established by the return it- 
 self, the truth of the last two charges, it became the duty of the sitting 
 member to prove by a counting of the votes in the ballot-boxes that 
 the votes were actually cast as claimed by him, and by proper testi- 
 mony that they were duly counted by the precinct officers. As he has 
 failed to do this, the presumption of law is that he was unable to do if. 
 There was no obligation upon the part of the contestant to prove or 
 disprove votes that had no existence before the committee in any legal 
 return, while Mr. Washburn well knew that the fact of any such vote 
 being cast in the county was denied by contestant and that the burden 
 of proof was on him to prove it. The committee has no way to ascer- 
 tain the votes cast except by the official return, and, where this is mani- 
 festly void, by testimony showing what the vote really was. 
 
 POLK AND KITTSON COUNTIES. 
 
 The return upon which the votes of these counties is based is ex- 
 tremely imperfect. It is as follows (page 64) : 
 
 Abstract of cotes cast in the county of Polk <$ Kittson and State of Minnesota at the general 
 election held in the several tovsnships and wards of said county on the first Tuesday after 
 the first Monday, being the fifth day of November. A, D. eighteen hundred and seventy-eight 
 (1878), for members of Congress, taken from the official returns. 
 
 MEMBER OF CONGRESS CONGRESSIONAL DISTRICT NAMES OF CANDIDATES. 
 
 Names of townships and wards. 
 
 Bygland 32 3 
 
 Farley 9 24 
 
 Vineland 7 
 
 Fosum 50 
 
 Andover 21 
 
 Red Lake Falls 78 
 
 Lowell 26 
 
 McDonaldville 36 
 
 1st district 23 
 
 Fisher 01 
 
 Hnntaville 46 19 
 
 Nelly 41 
 
 Crookston 213 45 
 
 Kittson Co., Tararac River 109 1 
 
 Ejttson Co.. Two Rivers 74 1 
 
 Total number of votes 832 182
 
 DONNELLY VS. WASHBUKN. 467 
 
 We do hereby certify that at said electiou W. D. Washlmrn received eight hundred 
 and thirty-two (832) votes for member of Congress ; I. Donnelly received oue hun- 
 dred and eighty-two (182) votes for member of Congn 
 
 A. YVERNAULT, 
 
 County Auditor. 
 
 Attest : 
 
 D. C. PALME K. 
 T. A. HARRIS. 
 
 limtices of the rt . 
 
 There is ail unorganized county of Kittson in the third Congressional 
 district of Minnesota, as appears by the abstract of votes returned by 
 the secretary of state (page 347), and there is also an organized county 
 of Polk : but there is no " county of Polk and Kittson." (See page 346.') 
 And there is no law linking these counties together. It appears by the 
 testimony (page 40) that "the county of Kittsou is not attached to any 
 other county for any purpose, either judicial or election." The county 
 out of which it was created, Pembina County, was attached to Clay 
 County (Stilt, of Minn., 1876, [p. 127). If, therefore, any part of the 
 above returns refer to the unorganized county of Kittsou they should 
 not have been returned to, canvassed with, or mixed into the returns of 
 the organized county of Polk. The foregoing certificate is not a return 
 of votes cast in Polk County or of votes cast in Kittson County, but 
 the vote is lumped together as the vote of " the county of Polk and 
 Kittson,'' and there is 110 such county in the district. And if we at- 
 tempt to separate the precincts in Kittson County from the precincts in 
 Polk County, so as to enable the county of Polk to be counted by itself, 
 we are met by the fact that Farley is shown by the testimony (page 226) 
 to be in Kittsou County, although there is nothing on the face of there- 
 turn to show that fact. There is no evidence to show in which county 
 the precincts of Bygland, Vineland, Folsom, Andover, Lowell, McDon- 
 aldville, first district, Huntsville, and Nelly are situated. Neither does 
 it appear by the return or in the evidence that the county auditor and 
 justices of the peace who signed the return held those offices in Polk 
 County or in Kittson County, or in any other county. 
 
 Moreover it appears (page 233) that there were but 86 legal votes cast 
 at Crookston, while the total vote returned as above was 258. There were 
 therefore 170 illegal votes cast at that precinct; they were principally 
 the railroad hands referred to in this report in our consideration of the 
 subject of bribery, every one of whom was paid for his vote. It also 
 appears (page 234) that there were but 40 residents of the precinct of 
 Fisher, while SS votes are returned from that precinct. The precincts 
 in the county of Kittsou were not legally established, there being no 
 law to authorize the governor to create election precincts in wholly 1111- 
 organi/ed counties. There were no registration lists at these precincts ; 
 cigar-boxes and candle-boxes without locks or keys were used for bal- 
 lot-boxes, in one precinct t lie voting place was a railroad car; in an- 
 other a railroad depot. Nearly if not quite every vote polled in two pre- 
 cincts of the county, as we have shown, was a bribed vote, and cast in 
 the majority of instances by men who were not legally residents of the 
 county and entitled to vote therein. 
 
 This fraudulent vote of Kittson County having been inextricably 
 mixed into whatever legal votes were cast in Polk County, it became 
 the duty of the sitting member to go behind this very defective certifi- 
 cate of "the county" of i'olk and Kittson' 1 and prove aliundc what 
 townships were in Polk County, and by a count of the ballots in the 
 ballot-boxes of those townships establish beyond question what votes
 
 468 DIGEST OF ELECTION CASES. 
 
 were legally cast therein. Having foiled to do this we are constrained 
 to reject the return. 
 
 THE UNORGANIZED COUNTIES. 
 
 It appears by the evidence that a number of the counties in the third 
 Congressional district of Minnesota are unorganized counties. The fol- 
 lowing table gives the names of the counties and the votes cast therein : 
 
 
 T. 
 
 ^ 
 
 = I 
 = ? 
 
 =. ~ 
 
 Big Stone 
 
 45 
 
 9 
 
 Douglas 
 
 682 
 
 489 
 
 Kanabec 
 
 109 
 
 
 Lake . 
 
 29 
 
 
 ;.-,:. 
 
 Otter Tail 
 
 940 
 
 
 
 
 
 1, 805 1, '^)7 ' 
 Majority for Waskburn 503 
 
 It was decided by the supreme court of the State of Minnesota, July 
 29, 1878, in the case of State, ex rel. Liudholm, vs. Parker, that the county 
 of Big Stone was not an organized county, inasmuch as the legislature 
 had never passed an act declaring it organized. The court held that 
 neither an act defining the boundaries of a county nor the vote of the 
 people therein electing county officers constituted a county organized ; 
 the legislature must recognize the action of the people by explicitly de- 
 claring it an organized county. The counties of Douglas, Kanabee, 
 Lake, and Otter Tail are in the same condition as the county of Big 
 Stone. Mr. Washburn did not produce any statute to show that the leg- 
 islature had ever declared either of them organized. It follows that if 
 these counties are not organized couuties there can be no county officers 
 in existence therein; and that those who claim to have canvassed and 
 returned the votes of the counties had no power to do so; nor can there 
 be any legal election precincts therein. But your committee are not 
 disposed to take a technical view of this matter, and although wo are 
 of opinion that the counties in question are 'not legally organized, never- 
 theless, as the votes returned are conceded to have been actually <-a>t 
 therein, and there is no charge of fraud, we have concluded that the four 
 counties last named should be regarded as He facto organized counties, 
 so far at least as election purposes are concerned. We also admit the 
 vote cast in the unorganized county of Big Stone, for the reason that 
 it is admitted by contestant that the vote was actually cast: and there 
 is no charge of fraud in connection therewith. 
 
 We therefore admit the votes of these unorganized counties. They 
 give a majority for Mr. Washburu of 508. 
 
 It will be seen that in the foregoing report we have not rejected the 
 vote of any county because it was unorganized: neither have we ie 
 jected the vote of any precinct because of the numbering of the ballots 
 perse, but because such numbering was one of the incidents of a system 
 of fraud and intimidation; neither have we rejected the votes of any 
 counties for mere informalities on the face of the returns, but only for 
 those gross irregularities which were manifestly incompatible with u, 
 legal canvass of the votes. 
 
 The following table summarizes the results of our investigations in 
 this case :
 
 DONNELLY VS. WASHBURN. 469 
 
 SUMMARY. 
 
 The total vote returned for William D. Wasliburn was 20, 942 
 
 This includes the supplemental returns from Hennepin County. 
 
 Add to this the votes cast but not returned for him, in the counties of Stearns 
 
 and Morrison, viz : Stearns. 144 ; Morrison, 68 total 212 
 
 21,154 
 
 Deduct : 
 The numbered ballots cast for him in the seven precincts of Minneapolis, 
 
 viz 2,, 
 
 The vote ivturned for him in the county of Isanti 538 
 
 The vote returned for him from "the county of Polk and Kittson " 832 
 
 3,652 
 
 17, 502 
 
 Deduct also the following bribed votes (not included in the bribed votes already 
 rejected in Polk and Kittson County), where the evidence shows the party 
 received money and voted for Washlmru : (1) Oluf Larson, Saint Paul ; (2') 
 . Abraham Werrick, Saint Paul; (:>j. William M. Leyde, Cottage Grove ; (4) 
 Christian llcyer, Alton ; (5) John C. Oleson, Minneapolis; (6) A. M.'Schaack, 
 Minneapolis; <?) Karl Fintler, Minneapolis; (8) Henry Monroe; (9) Sevit 
 Mahia, of Minneapolis ; (10) Louis Knudson, Minneapolis; (11) Louis Paulson, 
 Minneapolis ; (12) W. R. Metcalf, of Crystal Lake ; (13) Peter Quady, Minne- 
 apolis ; (14) Louis X. Gavnor, Minneapolis ; (15) PoterEugberg, MinneapoliH; 
 (In 1 ) Bernard Clout ier. Minneapolis ; "(17) Toleff G. Fladeland, of Sank Cen- 
 l.-r : (18J J. V. Browrr. of Saint Cloud ; (19) A. J. Clark, Little Falls; (20) 
 Thomas Kitowski, of North Prairie; (21) Mr. Buss, of Long Prairie; (22) 
 Henry Armstrong, of Two Rivers [this list does not include a large number 
 who admit the receipt, of money from Washburn or his friends but claim 
 that they voted for Donnelly] total 22 
 
 17,480 
 Total vote returned for Ignatius Donnelly 17,920 
 
 Add to this the voti-s cn-a but not returned for him from the counties of 
 Ste.arus, Morrison, and Douglas viz: Stearnd, 396; Morrison, 165; Douglas 
 61: total 622 
 
 18,551 
 Deduct : 
 The numbered ballots cast for him in the seven precincts of Minneapolis, 
 
 viz .... 522 
 
 The vote returned for him in the county of Isanti 137 
 
 The vote returned for him from the county of Polk and Kittson 182 
 
 841 
 
 17,710 
 
 Total vote tor Donnelly 17,710 
 
 Total vote for Washburn 17,480 
 
 Majority for Donnelly 230 
 
 We would therefore report and recommend the adoption by the 
 House of the following resolutions: 
 
 Reaolced, That William D. Washburn is not entitled to his seat as a 
 member of the Forty-sixth Congress of the United Stares, as Represent- 
 ative from the third Congressional district of the State of Minnesota. 
 
 Rexolrcd. That Ignatius Donnelly is entitled to his seat as a member 
 of the Forty-sixth Congress as Representative from the third Con- 
 gressional district of the State of Minnesota. 
 
 VAN II. MANNING. 
 S. L. SAWYFR. 
 R. F. A KM FIELD. 
 F. E. BELTZHOOVBE. 
 w. a COLFR1CK.
 
 470 DIGEST OF ELECTION CASES. 
 
 VIEWS OF THE 
 
 Held, That no bribery on the part of contestee or his agents is proven, the only evi- 
 dence touching on that point being hearsay. Bribery must be proved, and not 
 presumed. Fraud or bribery does not vitiate what it does not impregnate. 
 
 Held, That, notwithstanding ballots are numbered in the absence or violation of law, 
 they are to be counted. 
 
 Held, That where the law requires certain acts to be performed by a board of three 
 or more persons, it is sufficient for a majority of such board to act and join in the 
 certificate. 
 
 Mr. KEIFER, from the Committee on Elections, submitted the following 
 
 VIEWS OF A MINORITY. 
 
 The contest in this case arises over the election for member of the 
 House of Representatives in the third Congressional district of the State 
 of Minnesota, held on the 5th day of November, 1878. This district is 
 composed of thirty-eight counties, situate in the northern part of that 
 State, and comprises a very large territory, which has been very rapidly 
 settling up by emigration from other States in the Union. The returned 
 vote at that election for member of the House of Representatives was 
 as follows : 
 
 W. D. Washburu ........................................................... j>0, 942 
 
 Ignatius Donnelly .......................................................... 17, 929 
 
 Scattering ................................................................. 40 
 
 The returned majority for Washburn was .................................... 3,013 
 
 This district was created on the 22d day of February, 1872, by act of 
 the legislature of Minnesota. It has always been Republican by a large 
 majority. The Republican majority for Congressman in this district in 
 1872 was 6,449 ; in 1874, 2,319 ; in 1876, 2,096 ; in 1878, 3,013. The Re- 
 publican majority in this district for governor in 1877 was 8,153, and in 
 1879 Pillsbury's (Rep.) majority over Rice (Dem.) was 5,681. 
 
 A portion of the committee have decided to add to Mr. Washbum's returned 
 
 vote of .................................................................. 20,942 
 
 The unreturned vote in the counties of Stearns (144) and Morrison (88) ...... 212 
 
 Thus increasing his vote to ............................................ 21 , 154 
 
 From this it is proposed to deduct by throwing out and rejecting 
 The numbered ballots cast for him in seven precincts of Minneapolis. 
 to wit ............................................................. 2,282 
 
 The entire vote returned for him in the county of Isanti ............... 538 
 
 The total vote returned for him Irom the counties of Polk and Kittson . . 832 
 Alleged bribed votes ................................................. 22 
 
 Total to be deducted 3, 674 
 
 Leaving Mr. Washbum's vote 17, 480 
 
 It is further proposed to add to Mr. Donnelly's returned vote of 17, 929 
 
 The unreturned votes alleged to have been cast for him in the counties of 
 Stearns, Morrison, and Douglas 622 
 
 Thus increasing his vote to 18, 551 
 
 From this it is proposed to deduct the numbered ballots cast for him 
 
 in the city of Minneapolis 522 
 
 The vote returned for him in the county of Isanti 137 
 
 The vote returned for him in ^he counties of Polk and Kittson 182 
 
 Total to be deducted .. 841 
 
 Making Donnelly's votr 17,710 
 
 And his majority over Mr. Washburn 230
 
 DONNELLY VS. WASHBURN. 471 
 
 The testimony in this case, and the arguments of counsel, have com- 
 pelled the committee to examine a great many questions foreign to the 
 contest, as made on the contestant's notice. That notice consists of 
 nine paragraphs, very few, if any, of which state, as required by the 
 law of Oongresa, except in very general terms, the grounds upon which 
 the contestant relies. The law. as s-t forth in section 105 of the Revised 
 Statutes, requires that the contestant, in his notice, shall specify partic- 
 ularly the grounds upon which lit- relies in the contest. This the con- 
 testant has not done, although the nature of his contest is such that he 
 could have done so, and should have been required to do so; or, other- 
 wise, the great mass of his testimony should have been disregarded. The 
 United States statute requires that >; the testimony to be taken by either 
 party to the contest shall be confined to the proof or disproof of the 
 facts alleged or denied in the notice or answer." \-e. (R. S., section 105.) 
 
 It may be true that the law of Congress prescribing the mode of practice 
 to be followed in the House in contested-election cases is not absolutely 
 binding upon the f louse in view of the provisions of the Constitution 
 of the United States (Article I. section 5), which provide that "each 
 house shall be the judge of the elections, returns, and qualifications of 
 its own members." Hut it might work very great injustice to a con- 
 testee to require him to meet a case outside of this parliamentary-prac- 
 tice act. without any previous notice to him that the House intended 
 to depart from it in a material respect. 
 
 Until the House itself lays down and prescribes a different mode of 
 contesting elections before it, the parties to the contest have a perfect 
 right to rely upon the statute being strictly observed and followed. 
 'McCrary's Election Laws, sections .'41-3, 348-9, 353; Fiuley t>*. Bisbee, 
 Rep. !>.">. page L'8.) 
 
 It has frequently been held by the House that, notwithstanding proof 
 was offered sufficient to show that frauds had been committed, such 
 proof would not be considered because the contestant did not specifi- 
 cally notify the contestee of such ground of contest. 
 
 For a full discussion of this point, attention is called to the views of 
 the late Speaker Kerr in the case of Delano /\s. Morgan (Com. Elec. 
 Cases, lSf>5-'71, pages 17G-8). 
 
 Before proceeding to consider the case as made by the notice and on 
 the testimony, it is thought proper to refer to the character of evidence 
 lelied upon by the contestant. It will be found by an examination of 
 the record that there is very little, if any, testimony which would be 
 received or considered in any court of justice in this or any other civ- 
 ilized country. The testimony may be, generally, denominated hearsay. 
 In so far as it relates to the question of bribery or illegal voting very 
 little of it rises even to the dignity of hearsay when scrutinized. It is 
 understood that certain members of the. committee, in order to arrive at 
 the conclusion reached by them, have considered all, or very nearly all, 
 of such incompetent testimony found in the record. With the single 
 exception that in the case of a voter who has voted for the sitting 
 member. d'-el nations of the voter are inadmissible. There are author- 
 ities, though they even are doubted, to the effect that the declarations 
 of a voter, though hearsay evidence, are competent to prove his want 
 of qualification to vore. It is seldom, if ever, proper to regard heai 
 statements as competent evidence. Regarding the testimony as affect- 
 ing the voter, and no other person, his statement as to his qualification 
 ote may be taken as an admission against him. The ordinary rules 
 of evidence apply as well to election coin o other cases. (See 
 
 McCrary's American Law of Flection^, section 306.) We do not think
 
 472 DIGEST OF ELECTION CASES. 
 
 it necessary to cite many authorities in support of this proposition, but 
 we here give a few, as this question is a very important one in the 
 determination of this case : 
 
 AUTHORITY AS TO HEARSAY EVIDENCE IN CONTKSTKD-EI.KCTION CASES BKFOHKT 
 
 PARLIAMENTARY BOD1 ' 
 
 In Cushing's Law and Practice of Legislative Assemblies, at section '210, page 7t>. 
 the following doctrine is laid down: 
 
 "The same general rules by which courts of law are governed in regard to evidence 
 in proceedings before them prevail also in the investigation of cases of controverted 
 elections; but inasmuch as a legislative assembly, touching things appertaining to its 
 cognizance, is 'as well a council of state and court of equity and discretion, as a court 
 of law and justice,' the legal rules of evidence are generally applied by election com- 
 mittees, more by analogy and according to their spirit, than with the technical strict- 
 ness of the ordinary judicial tribunals." 
 
 Section 11. "The rule stated in the preceding paragraph relates of course only to 
 investigations by the testimony of witnesses or other evidence before the assembly or 
 its committees, but where the testimony is contained in depositions, they ought to be 
 taken according to the law of the State where they are taken." 
 
 Section 742, page 293. "The proceedings of a legislative assembly frequently rendei 
 it necessary to institute inquiries into matters of fact, and of course to retvive and 
 judge of the various kinds of evidence upon which human conduct is predicated, and 
 which may be submitted to its consideration. In the every-duy a If airs of life, and in 
 reference to matters in which their own interests are alone involved, men act upon every 
 kind of evidence which has even the slightest tendency to induce belief, lint in regard 
 to affairs in which parties are adversely interested, and imclnch there are conflicting rinhltt 
 and claims to be adjudicated, the law has wisely provided that only such evidence shall 
 be received, and under such circumstances, as shall afford reasonable security both 
 against designed falsification and unintentional mistake." 
 
 Section 743, page 293. "The rules of evidence by which courts of justice ai. 
 erned, and by which their proceedings are regulated in the investigation of the 
 which coine before them, make a part of the civil rights of the citizens, as much as 
 the rules regulating the acquisition, the enjoyment, or the transmission of property, or 
 which govern any other matter of civil right ; and when a question of the same nature 
 is pending in the legislature, involving private interests only, no good iea>n ran be 
 assigned why the rules of evidence should not be the same. It would seem reasoi 
 therefore, to regard it as a rule of parliamentary practice that when the priv;: ! 
 terests of individuals are the subject of investigation, or, in other words, where the 
 investigation is a judicial one, andsofarasit is of that character. the same or analogous 
 rules of evidence should be applied as would be observed in the investigation of 
 similar interests in any of the courts of law or equity, and this appears to be the rule. 
 which has prevailed in modern times.'' 
 
 Cases of contested election- 1--34 to 1865. 
 
 White vs. Harris, page 257. In this case, on pages 2r,4-5, the question of the ad- 
 rnisBibility of hearsay testimony is discussed; it was rejected. Reportby Hon. Thomas 
 L. Harris. 
 
 Same book, page 33. (Ingersoll vs. Naylor.) Syllabus: "Where extensive frauds 
 were alleged, the committee refused to receive hearsay evidence." 
 
 _On page 34 the question of the hearsay evidence is discussed and the evidence re- 
 jected. 
 
 Same book, page 19. (The New Jersey Case.) Si/Uabu*: "Held by the committee 
 that hearsay declarations of the voter should be rejected." 
 
 On page 24 of the report of this cast the committee, in discussing the question of 
 what votes were actually cast at the polls, use this language: 
 
 "The first proposition involved the inquiry whether the vote was actually cast at 
 the polls, and for the ascertainment of this point the committee necessarily resorted 
 to parol proof as the best e\ idence which the nature of the ease would admit of, the 
 of ^ew Jo-Key n<>! ri'quirhiii the poll-lists to be prestrred an a record of the actual 
 voters. Mere hearsay declarations of the alleged voter as to the fact of his having 
 voted have been uniformly rejecti'd."" 
 
 Caxe* of contested elections in Congren*. 1 -<;,") to 1>7 \. pn>i- 
 
 John W. Reid v. George, W. Julian. >';///<('"- : "IIe:.r-ay evidence 
 (S*e also Mcf-rary's Lav, of Klectioi - ''.00.) 
 
 *Hearsa\ evidence J K nO T a( i, n bribery as & disqualification, but only to
 
 DONNELLY VS. WAMlUfRX. 47.'I 
 
 affect or annul individual ,,-. < 1.'.- Note-. 7n4-7 ::; Met v - Bep 
 
 t>:?(>. note; I'eople -V. Peas-, -J7 N. y. ):. 
 
 It is proper to observe that much ol' the hearsay evidence relied upon 
 consists only of conclusions drawn from conversations held after the 
 election, which are always unreliable, ami as a general rule, even though 
 the testimony would otherwise be competent, are regarded as very dan- 
 gerous if at all admissible in a court of justice. Of this latter class of 
 testimony a learned judge has said: 
 
 No class <>1 testimony, perhaps. is more unreliable . and a more frequent 
 error in conns of justice, than the narration ot' conversations, real or pretended. The 
 meaning and intentiuu of a peisuii in ,; conversation ot'len depend Hindi upon gesture. 
 attitude, mode of expression, or peculiarattending circumstances. known, perhaps, to 
 but few iresent. A conversation may not lie fully heard by the witness, imperfectly 
 
 ., or inaccurately repeated, -\\ i -ission or addition of a BID] 
 
 of* the substitution of the language of tli -. under color of bias or exciten 
 
 for the words actually used, might change ti .in entire conversation. This 
 
 is apparent from tin- irreconcilable contradictions daily manifested in the narration of 
 
 .me conversations from the months of different witnesses. The liability to error. 
 in this kind of testimony, would be greatly increased by allowing witn- --, to add 
 their own i-oin-i indertUmdirngs, from the conversation related, or their infer- 
 
 ,is to the undemiandinrj of the pan:- -.niversation. Such lati'iule would 
 
 break down an important barrier which protects judicial investigation from error and 
 
 ; ood. The understanding or inferences of \\ \ fie(|iiently formed 
 
 from bias, inclination, or interest. And a witness's understanding or inference from 
 a conversation or transaction rests entirely in his own mind, and his consciousness of 
 falsehood would be incapable of proof; so that there could be no possibility- of con- 
 victing a witness of perjury on the ground of such evidence. (Judge Hartley. M 
 Ohio St., p. 41-2.) 
 
 It may be further noted that the charge of bribery, like that of fraud, 
 must be proved and not presumed. This is a universal rule of law 
 when it is sought to convict a party of a crime. There is a difference 
 of opinion among members of the committee as to what rule should pre- 
 vail in a contested -election casein proving the crime of bribery. Some 
 members of the committee maintain that it should be proved, as in 
 criminal cases, "beyond a reasonable doubt." Others are satisfied with 
 t>he rule which requires the testimony to be " clear, satisfactory, and con- 
 rincintj." but all should agree that so serious an offense as bribery should 
 be proved and not presumed. 
 
 THE CHARGE OF BRIBER Y. 
 
 Before going into the testimony and considering it in the light of proper 
 rules of evidence, it should be said that there is evidence tending to show 
 that in this district the friends of the contestant and contestee both used 
 money to poll the district (pp. SC-7 and J.ul), and to provide means for 
 getting to the polls voters who were remote from the polling places, and 
 who were often without conveyances of their own in which to travel to 
 
 polls on election day. ."Money was undoubtedly spent to pay can- 
 
 sera before the election, and in some instances men were employed 
 at the polls to hold tickets for the respective parties. The district is a 
 very large one in point of population and in extent of territory, and in 
 consequence of this, greater effort was required to get out a full vote. 
 Some money was also expended to pay speakers to go over the district. 
 The committee is not prepared to say that such use of money is enthely 
 illegitimate It is very common, if not universal, in all contested - 
 tions throughout the United States f.r candidates and their friend- 
 
 -uch means to secure vote-. Presidential elections are not excep- 
 tions in this respect. 
 
 rtain members of the commit!- > ery much upon the fact that
 
 474 DIGEST OF ELECTION CASES. 
 
 the sitting member was not willing to dignify the case of the contestant 
 by calling witnesses to disprove the alleged testimony offered by him. It 
 is a sufficient answer to this to say that there is very little in any of the 
 testimony offered by the contestant for the purpose of proving bribery 
 that is in any sense worthy of being met by any testimony, even though 
 it could be regarded as competent testimony. A reading of the testimony 
 of the several witnesses will show in most, if not all, the cases that it 
 proves nothing that is worthy of answer. The witnesses called in many 
 instances only make clear the fact that they were disappointed parties 
 who desired to be bribed by being paid large sums of money, which 
 they were disappointed in obtaining. The first witness mentioned 
 in the report of the committee, a Democrat, by the name of Charles 
 Berens, of Morris on County, is an example of this. He testifies that he 
 wrote a letter to Mr. Washburn requesting to be paid fifty dollars to 
 support him. It is not clear that this letter was ever received by Mr. 
 Washburn in person. Mr. Berens received no answer from Mr. Wash- 
 burn to this letter, and he received no money from Mr. Washburn. Some 
 of the committee, however, lay much stress on the fact that Mr. Wash- 
 burn, or some of his friends, did not, prior to the election, indignantly 
 resent the proposition made to him by Berens as an insult. There was 
 no good reason why Mr. Washburu, or any of his friends, should have 
 done so. They were undoubtedly anxious not to make any enemies, 
 even though they were wholly unwilling to pay a man for his support. 
 It will be noticed that Mr. Berens did not propose to sell his vote to Mr. 
 Washburn, but simply, as appears by the whole testimony of this wit- 
 ness, to work for Mr. Washbnrn, presumably to get out voters, or to 
 induce, by argument or otherwise, other persons to vote for him (p. 
 300). It appears from the testimony of this witness that he wrote also 
 to Mr. Donnelly, to solict him for money as an inducement to support 
 him at that election (p. 301). This witness says that had he received 
 the fifty dollars which he solicited, he would not have supported Mr. 
 Washburn; and in the conclusion of his testimony he utterly disproves 
 the charge, so far as his knowledge goes, that any money was used by 
 Mr. Washburn or his agents to influence persons to vote for Mr. Wash- 
 burn at the election. As Berens opened negotiations with Donnelly 
 and supported him (p. 301), the only presumption that can arise, if any, 
 is that he bribed him. This witness refers to a Mr. Brower, who, it is 
 claimed, acted for Mr. Washburn in the vicinity of where he lived. But 
 it turns out that, notwithstanding his vigilance in trying to find that 
 somebody had been bribed, he utterly failed. The following questions 
 to this witness, and the answers thereto, set at rest this witness's testi- 
 mony, so far as bribery is concerned (Record, p. 301): 
 
 Q. Do you know of Brower's paying any money to any person for his vote for member 
 of Congress or for any other candidate to be voted for at the last electon, held No- 
 vember 5, 1878, or diiring the canvass immediately prior therto? A. I did not see 
 him give any. 
 
 Q. Do you know of any money being paid or promised by William D. Washburn or 
 his agents, or by any p.-rson or persons acting for him with his knowledge, to any 
 person or persons during the last election, held November 5, 1878, or during the can- 
 vans immediately preceding said election, tor such person or persons' vote or vo< 
 influence for William D. Washburn for member of Congress for the third Congressional 
 district of Minnesota ? Noi that I know of. 
 
 Q. Do you know of any person in this vicinity trying to corrupt a candidate for 
 < 'ougress by demanding o'f such candidate $50 as a consideration for his supporting 
 such candidate at said election ? A. I did it myself. 
 
 There is an attempt to show that in the county of Kittson certain 
 persons were bribed to vote for Mr. Washburn. If this were true, there 
 is' no evidence even tending to vshow that he was in any sense a party to
 
 DONNELLY VS. VVASHBURN. 475 
 
 it. The committee seem to think tiiar the number of vote* cast in this 
 county was too great. The total vote of the county was 184. It is true 
 that two witnesses testify on this point. The first. G. C. Morton, says 
 (p. 125), "to the best of my knowledge there were four actual settlers in 
 this county": and then he adds, that is all 1 know." The second, 
 Dennis Reardon, says (p. 144), to use his own language, referring to this 
 same county, ( 'it was unsettled, so far as I saw, except the railroad." 
 On this testimony it is proposed to tiud that a large number of persons 
 voted who were not legal voters, and also that they were bribed. Tim 
 committee fails to take into account that in new countries it is along the 
 railroad chiefly that men -ettle. and that settlements spring up as rap- 
 idly as railroads are built. The testimony of Reardou shows that there 
 were people settled along the railroad, and it is this class of men who 
 are denominated as " hnrrext hawls nnrt tramps, who had not been in the 
 Mate long enough to rote."' The witness Morton, so much relied upon, 
 says in his testimony that he had only resided in Kittson County eleven 
 days before the election, and. of course, he could have had verj little 
 means of knowing who were residents and who were not; and on a 
 cross-examination it is made ;< appear that he did not kiiow a single 
 .nan who was not a resident of the county at the election on November 
 5, 1878. The following is an extract from the testimony of this witness 
 (Record, p. 128) : 
 
 ','. How long bad you been in Tamarack, in Kittson County, prior to November 5, 
 1878? A. I had been t^iere eleven days before election day. 
 
 Q. With how many oTthc eighty <>i ninety men in the employ of Webster & White 
 at their wood-camp at or near Tamarack were you personally acquainted on the -"Hi 
 ilay of November, 1878? A. About forty of them. 
 
 Q. Do you know of your own knowledge any of the eighty or ninety men so em- 
 ployed at the wood-camp of Welt,-r \ White, at or near Tamarack, who had not 
 resided in the .State of Minnesota more than four months and in the election precinct 
 iiiore Than ten days prior to November ~. 1S78? If so, state who. A. I do know, of 
 my own knowledge, of men that were there less than ten days prior to November 5, 
 1878. I do not know of any person who had not been a resident of the State moni 
 than four months prior to November ,">, 1S78. I cannot name all the names; Mr. O'Neil, 
 or one, Guss Avenger. James Nichols, .John Morrison, Guss Glyndon ; ten others, whose 
 ames I can't recall now. Tl;os. names that I mentioned and ten others I cannot 
 call to mind are those who had not been there ten days. 
 
 Q. Do you know, of your own knowledge, whether any of the persona referred to 
 in the preceding answer as person.-, who had been there less than ten days voted at 
 :he election precinct at Tamarack. November 5, 1878; and, if so, whether any of that 
 number voted for William D. Washburn for member of Congress? A. I don't know. 
 
 Q. Do you know, of your own knowledge, whether any or the persons on the con- 
 struction train referred to in your direct examination as voting at the election pre- 
 cinct at Tamarack on November f>, H~.r\ had not resided in the State of Minnesota 
 more than four months prior to said election, and resided in that precinct more than 
 ten days prior thereto? A. 1 do not know. 
 
 The worst that can be said in relation to the vote of Tamarack pre- 
 cinct, in Kittson County, is that the persons who employed some of the 
 voters allowed them for their time while going to and returning from 
 the polls. This act on their part the committee does not approve. 
 
 It is claimed that men were bribed to vote for Mr. Washburn at this 
 precinct. The testimony does not sustain this claim. One G. C. M 
 ton is relied on alone to prove this charge. Aside from some conclusions 
 >tated by this witness and given without any reliable data to base them 
 on, his statements are purely hearsay and wholly incompetent as evi- 
 dence. 
 
 There is some evidence to the effect that certain men were engaged 
 in chopping wood for two men Webster and White by whom they 
 were paid for their time while attending the election, but the evidi 
 does not even tend to show my bribery on the part of Mr. Washburn.
 
 476 DIGEST OF ELECTION CASES. 
 
 The evidence shows these men were not even solicited to vote for Mr. 
 Washburn, bnt were allowed to vote as they pleased. Some of these 
 men may not have been legal voters in Tamarack precinct. There is 
 great doubt whether, under all the circumstances, the vote of this pre- 
 cinct should all be counted. There was no proper ballot box. &e. (p. 309. 
 On the question as to whether these wood choppers were bribed we give 
 here the hearsay testimony of the witness Morton to show both its in- 
 competency and unreliability (pp. 12G-7) : 
 
 Q. Did yon have any conversation since election with Mr. Webster in reference to 
 any payment of money for the votes of the men employed in the wood-camp ? And, if 
 so, state what it \vas. A. I have had several conversations with Mr. Webster since 
 election; he lias mentioned several times io n;e ri:e lact that Mr. White had received 
 the money for the purpose of defraying the expenses of the election, and that Mr. 
 White had not paid him his ahare of it. He asked me if I thought he could sue White 
 and collect the balance due him as his half of the prceeds. He stated that Mr. White 
 had received for the tirm Webster .V White one hundred and eighty-two d< 
 that Mr. White had not paid him but sixty-three dollars, which he claimed was not. 
 all that was due him. Restated that Major Hale, of this city. Minneapolis, had given 
 Mr. White a check for one hiindre dand egihty two dollars, and that the check was 
 cashed by George Webster, paymaster of the Minneapolis and Saint Louis Railroad 
 Company. It is about the substance of it. 
 
 Q. Was this Major Hale Maj. W. D. Hale, who is the general manager of Mr. W. 
 D. Washbnrn's business in this city ? A. Major Hale is the manager of Mr. Wash- 
 burn's business in Minneapolis. I do not know his initials. 
 
 Q. Did yon understand from Mr. Webster that the check for one hundred and eighty- 
 two dollars referred to by you was paid to Webster & White by Major Hale to reim- 
 burse them for the money paid by them to their workingmen \vho v oled at that 
 on the 5th of November. IsTH, for their time on election day flaring which they did 
 not work? A. Mr. Webster told me that this money was to defray their expen- 
 the time of the election at the Tamarack. 
 
 Q. Did he say what those expenses consisted off A. He did not. 
 
 Q. Do yon know what those expenses consisted of? A. I do not ; only by hea 
 
 Q. State what von heard in regard to those expenses. A. I have heard from sev- 
 eral men that worked there that the money was received to pay for the men's time on 
 election day. 
 
 Q. Did you learn from any of the men at the camp who were paid for their time in 
 what way payment was made to them ? A. The men who worked by the day or month 
 were allowed their regular time as if they had worked steadily : and the choppers who 
 worked by the cord were allowed one or two days' board : they have stated it in dif- 
 ferent, ways. 
 
 Q. Did you get this information from the men who were so paid or allow <! board ? 
 A. I did. 
 
 The evidence of both Webster and White utterly refutes and explodes 
 all the statements of the witness Morton as to bribery, ami it shows also 
 that so far as money was paid at all to these men for their time while 
 voting, it was done without the knowledge of the sitting member. It 
 also shows that the men were not even asked to vote for Washburn. 
 
 The contestant put both Webster and White on the witness stand and 
 then proceeded at once to cross examine them. 
 
 We first give a full extract from Webster's testimony (pp. 29G-8) : 
 
 Q. Were you a member of the firm of Webster iV White, wood contractors, getting 
 out wood last fall at Tamarack. Tipton County, Minnesota f A. I was. 
 
 Q. Did you state in a restaurant, in Minneapolis, within tin: iast tliiny d.ivs, that 
 White had received money to reimburse the tirm for the money paid to ili.-ir employt-H. 
 for the time spent in voting at Tamarack November 5, 1878, or words to that etfect? 
 A. No, sir. 
 
 Q. Did you say that you and White had a dispute or misunderstanding abou: 
 money so paid to White < A. Mr. Whiteaud I have had nodispnte. 1 did not say so. 
 
 Q. Did yon state at that time that you bad tailed upon Mr. Washburn in reference 
 to money coining to you from White? A. No. sir: I did not know thei. 
 money coming. 
 
 Q. Did yon not. say that yon had made an examination at :: bank in Minneapolis, 
 and that you found there a clieel- given to White or some other party for a sum of 
 moiiey in payu cut of the money .-<> paid to men r A. No, sir; not to my knowledge. 
 
 Q. Could yon have said it. without your knowledge ? A. No. sir.
 
 DONNELLY VS. WASHBURN. 477 
 
 Q. Did you not say the check was tor &250 and signed by William D. Washburn? 
 A. No. sir. 
 
 Q. Did you not say. at that time and place, that yon had railed upon Washburn in 
 reference to the money so paid White, and that you claimed your share of it, and did 
 Washbnrn tell yon that he would ratlu-r pay many times ihe amount of it than have 
 the transaction exposed, and that he would or did make, it right with you, or words to 
 that ett'ert .' A. No, sir; I am not acquainted with Washbnrn. 
 
 Q. Did you have such a conversation with any one el.se? A. Not to my knowledge. 
 
 <,'. I>D you swear that you did not i A. Yes, sir. 
 
 (). Is Mr. Webster, the paymast- rof the Minneapolis and Saint Louis Railroad Com- 
 pany, a relative of yours.' A. Second cousin. 
 
 Q. Did your firm pay the men who cut wood for you at Tamarack a hundred and 
 sixty or a hundred and seventy dollar.-, or any other sum for the time spent at the polls 
 on election day, November."). 1878 ? A. We simply allowed them their time to go androle; 
 I was not cashier; that is all of my answer. 
 
 Q. Do you pretend to say that your firm did not pay $160 or ?170 to the men for their 
 time at the election, and you not know of it because you were not cashier?- -A. Cer- 
 tainly, if yon ask a man to vote, and he. says he won't, vote unless he is allowed for 
 his time, we have a right to pay him for it. / agree to pay them, if they would go and 
 vote according to their oicn taxte.for their time. I don't care how anybody votes. 
 
 Q. Are you so fond of seeing men vote that yon are willing to pay $160 or $170 for 
 the mere luxury of knowing that they vote, without regard for whom they vote? 
 A. Mr. White told me it was simply allowing them their time, for that day, and that 
 lie (White) could get enough money to balance the money expended for the, time they 
 lost in going to the election, as they did not want to go unless they got as much as 
 they could in chopping wood. 
 
 Q. Who did White tell you he was to get the money from to balance the money so 
 expended? A. He did not tell me, nor I did not ask him. 
 
 Q. Did he ever tell you that he had got the money? A. No, sir; I did not know 
 what he did receive. I do not know what he received, only what I saw in the paper 
 and his testimony. 
 
 Q. Do you pretend to say that flb'O or $170 or any other large sum could have been 
 taken out of the money of the lirm to pay voters and you not know three months after 
 the transaction whether the linn had been repaid or not f A. I presume it could as 
 long as he paid the bills. Mr. White and I have not settled yet on our wood contract. 
 \Ve have beeii very busy and have not had time to settle our wood contract. 
 
 Q. Have you had any conversation with any one at any time with reference to the 
 repayment of the money so paid by the tirm to the wood-choppers for their time on 
 election day? A. I had all I could do election day to attend to my business as judge 
 of election, and did it to the best of my ability for both parties. Not that I know of. 
 
 (mined : 
 
 < v . Did you pay anything tor votes on the election day at Tamarack, Novembers, 
 
 or did Webster & White pay anything for votes on said day at said place, or 
 
 did you simply allow the men their time to go to the polls and vote for either Mr. 
 
 Donnelly or Mr. Washburn for member of Congress as they saw fit? A. We simply 
 
 allowed them their time to go to the polls and n*e their own judgment in voting, 
 
 Q. Did you try to influence the men in your employ at Tamarack to vote for William 
 D. Washburn for member of Congress at said election held at Tamarack November 5, 
 
 -A. No. sir. 
 
 Q. Did you ask one Morton, then in your employ, to use his influence with the men 
 for Washburn ? A. No. .sir; not to my knowi. 
 
 Q. Do you know of any money being paid or promised by William D. Washburn, 
 
 or his agents or any person or persons acting for him, with his knowledge, to any 
 
 on or persons for his or their vote or votes or influence for William D. Washburn 
 
 for member of Congress from the third Congressional district of Minnesota, at or prior 
 
 to the election held November '>. 1^78? A. No, sir; not to my knowledge. 
 
 Redirect examination: 
 
 Q. Who were you in favor of for Congress last fall ? A. As I was always a Repub- 
 lican. I voted that way last fall. 
 
 Q. Were not most of your wood-choppers cutting wood by the cord at $1.10 per 
 cord ? A. Y<--. 
 
 Q. Was not their time their own ? A. It was: but I told them if they would go 
 and vote as they saw tit 1 would allow them their time, as they would not, go with- 
 out it. 
 
 Q. How could you allow them their time when their time was their owu, as they 
 were not hired by the day or month f A. If they had not went to the polls they 
 would have cut a cord and a half of wood, which would have amounted to SI. 50, go 
 we allowed them the same : did not care who they voted for.
 
 478 DIGEST OF ELECTION CASES. 
 
 Q. About how many of them voted ? A. I judge about 50 or 60 voted : there might 
 have been more or less. 
 
 Q. Then you paid for about 75 cords of wood which you never got? A. I did not 
 oay so. 
 
 Q. You said that White told you that he could get enough money to balance ther 
 money paid for the men's time in voting. If the men had all voted for Donnelly would 
 he have got the money 1 A. Yes, sir. 
 
 Q. Who would have paid it? A. I should have paid it. and calculated that you, 
 Donnelly, would have made it good. 
 
 Q. But as the votes were all but one for Washburn, did you calculate that Wash- 
 born would make it good ? A. No, sir : the other answer was said in joke. 
 
 Here are also full extracts from the testimony of the witness White, 
 of the firm of Webster & White (pages 306, 307", 308, 309, 310) : 
 
 Q. Was an election held at Tamarack on the 5th of November, 1878, for Congressman 
 and State and county ticket ? A. There was an election held for State officers and 
 Congressman, but no county officer, I think. The county was unorganized at that 
 time. 
 
 Q. Did you vote at that election there ? A. Yes, sir. I decline to say for whom I 
 voted. 
 
 Q. Did any of the men in your employment vote at that election ; and, if so, how 
 many ? A. Yes, sir ; I guess all the legal voters voted ; cannot tell exactly how many. 
 
 Q. Did a majority of your men vote there? A. Yes, sir. 
 
 Q. Did two-thirds of them vote ? A. I should judge, may be, more than two-thirds 
 of them voted. 
 
 Q. Were the men paid for the time consumed in voting? A. They were allowed 
 their time. Most of the men said they would like to go and vote ; didn't feel able to 
 lose the time. Most of them were earning good wages. I told them to go aud vote 
 and I would allow them their time. 
 
 Q. Do you mean that yon would allow them pay for the time spent at the polls the 
 game as if they had been working for you all the time? A. Do not know that I told 
 them that; I told theuf I would allow them their time. 
 
 Q. Did you, in settling with them, pay them for the time they were absent from 
 work on that 5th day of November. 1878? A. I didn't settle with them; I had a 
 bookkeeper for that purpose. 
 
 Q. Was anything deducted from the pay of the men who worked by the day or the 
 mouth on account of absence at the election that day ? A. No, sir. 
 
 Q. In settling with the men who cut wood by the cord, was not an allowance made 
 on their bill for board of the time spent at election that day ? A. I do not know. 
 
 Q. Were you present when any of the men were settled with ? A. Yes, sir. 
 
 (^. Do you not then know that the wood-choppers who chopped by the cord were 
 allowed one or two days' board for the time spent at the election? A. No, sir. 
 
 Q. Do you swear that such an allowance or some other allowance was not made to 
 those men ? A. I said before they were allowed their time. Most of them were work- 
 ing by the cord, a few by the month a very few. 
 
 Q. If each man was to receive so ranch for each cord of wood cut, whether he cut 
 ten cords or one hundred, was not his time his own, and what do you mean when you 
 say yon allowed him his time ? A. I mean they said they wanted to go and vote, 
 but they could not lose the time: that in all probability, during the time spent in 
 going to, staying at the polls, and returning, they might have cut a cord and a half or 
 two cords of wood. 
 
 Q. How much were you paying them for cutting wood by the cord ? A. One dollar 
 and ten cents per cord. 
 
 Q. Then you paid these men for a cord, a cord and a half, or two cords that they 
 never cut for you ? A. Don't know as we allowed them any such thing as that ; I 
 think we allowed them about what they could have cut iu a day. 
 
 Q. What was the gross sum that you paid or allowed in this way ? A. I don't 
 know ; I think $160 or $170. 
 
 Q. Has that money been repaid to you ? A. Yes, sir. 
 
 Q. Who by? A. By a man named George B. Webster, who gave me a check on the 
 bank ; think it was the First National, of Minneapolis. 
 
 Q. What was the amount of that check? A. It was either $168 or $172. 
 
 Q. Who is this Mr. Webster? A. The paymaster of the Minneapolis and Saint Louis 
 Railroad. 
 
 Q. Who is the president of that road ? A. W. D. Washburn. 
 
 Q. How did the paymaster of the Minneapolis and Saint Louis road happen to pay 
 you for wood cut, or the time of your employes, under a contract for the Saint Paul 
 and Pacific Road ? A. Well, 1 will tell : be \va.s a friend of mine, and I weut to hi in, 
 asked him if he could let me have $168 or $172. or loau me that amount. He took out
 
 DONNELLY VS. WASHBl^RN. 
 
 his little bank-book, said he had just about that amount in the bank, arid, if it would 
 accommodate me. he would let me have it. It teas hi-* individual check. 
 
 Q. Have you ever repaid him that amount ? A. No. - 
 
 (.{. Did you give him your promissory note for that amount at the time he gave yon 
 the check? A. No. -ir. 
 
 Q. Whose name was to the check you received for that money f A. George B. orG. 
 B. Webster ; can't tell exactly when it was given. Quite confident it was after elec- 
 tion : might have been eight or ten days after election. 
 
 Cross-examined by F. HOOKER. Esq., on behalf of coutestee : 
 
 Q. Was there anything said to the men by yourself at the camp that tended in any way to- 
 unduly influence tho*e in<n to cast (heir rotes fur either M". I), frashburn or Ignatius Don- 
 nelly for member of Conares* at the election held at Tamarack, November 5, 1878 f A. Xo, 
 rir : some of the men said they would like to go and vote. Some of the men asked ine 
 if 1 bad any choice: I said I was friendly to Mr. Washburn : that they could vote for 
 either Mr. Donnelly or Mr. Washburn as they saw fit. This was in substance all I 
 Raid to the men about voting for either Mr. Washburn or Mr. Donnelly. When they 
 came to count the votes I was much surprised to find that Mr. Donnelly had no more 
 votes. I did not know whi^h icay the vote would go. I did not know but Mr. Donnelly 
 would get 40 or 50 or 60 votes. Didn i ask any one how they would vote. I suppose there 
 was an opportunity for all to get tickets. There were several settlers in that vicinity. 
 Everything was quiet and orderly at the polls. The polls were open at exactly nine 
 and closed at live. No person voted at that precinct who was not known to the judges 
 to be residents of the precinct. In Morton's testimony he mentioned the names of 
 Nichols and Morrison as illegal voters or from Canada. I know they did not vote. 
 They said to me that they thought they had no right to vote, and I told them not to 
 vote if they thought they were not legal voters. 
 
 Q. How long had yon known General Washburn * A. Seven or eight months ; wa* 
 ordinarily friendly to him. He always treats me respectfully, and I also treat him so. 
 
 Q. Did you go to Morton to get him to use his influence with the men to vote for 
 Mr. Washburn for Congress at said election? A. No, sir; I did not. I was on no> 
 more intimate terms with Morton than I was with the other men. 
 
 Q. Do you know of your own knowledge of any money paid or promised to be paid, 
 reward offered or promised, or any valuable consideration whatever given or promised 
 by Win. D. Washburn. or any person or persons acting for him with his knowledge, to 
 any person or persons in order to influence such person or persons to vote for or use 
 his or their influence to canse other persons to vote for Win. D. Washburn at the late 
 election held November 5. 1878? A. No, sir. 
 
 Recross-examiuation : 
 
 y. Did you say anything to Morton about this money transaction that has been 
 talked about f A. Never, to the best of my memory. 
 
 Redirect : 
 
 Q. Did Webster tell Morton in your presence that Webster & White would make- 
 more money looking after the election than they would at cutting wood, or words to 
 that effect ? A. I think not, sir : I don't know what he told Morton, but he did not 
 pay it in my presence. I never told Morton any such thing. 
 
 The testimony does not show that Webster & White paid these 
 wood-choppers for their time under any arrangement with Washburn or 
 any of his friends. The most that can be said is that one George B. 
 Webster, a relative of the Webster of the firm of Webster & White 
 (p. 296), consented after the election to reimburse Webster for the money 
 he had paid these men for their time on election day while attending 
 the polls and voting. 
 
 He only adopted the act after the election by giving hix hulirifiual check 
 for the sum paid (page 307). If Mr. Washburu had himself done thia 
 (which he did not), he would not, have been guilty of bribery, even 
 though it could be said the men were bribed to vote for him. 
 
 The testimony does not show, as has beeii claimed, that money wa 
 paid from the funds of the Minneapolis and Saint Louis Railroad Com- 
 pany : nor does it show who, if any person, reimbursed George B. Web- 
 ster. The most that can be said is that G. B. Webster may have paid 
 this money from a campaign fund raised by the district committee. We 
 are not called on to approve of the act of Webster & White in prom-
 
 480 DIGEST OF ELECTION CASES. 
 
 ising and subsequently paying these wood-choppers for their time on 
 election day while th^y were not at work. The policy of such an act is 
 strongly condemned, although it is often adopted. As in this case, the 
 voters who are laboring men often demand to be paid for their time 
 regardless of their politics. 
 
 Some significance is given to the fact that in Tamarack precinct Don- 
 nelly only received one vote. It was not the only precinct where the 
 voters about all voted one way. Mr. Donnelly claims to have received 
 all the votes, 61, cast in Leaf Valley precinct, Douglas County, page 
 270, and a portion of the committee (although no return was made of 
 these votes) has agreed to count them for him. For other precincts 
 where the vote was almost unanimously for Donnelly, see pages 2CO and 
 261 of record. Had the voters in Tamarack precinct been bribed to vote 
 for Washburn that fact could certainly have been proved by competent 
 testimony. 
 
 As the rejection of the entire vote of this precinct cannot affect the 
 result in this case, it is not thought necessary to do anything more than 
 consider the testimony with reference to the contestee's complicity with 
 any alleged bribery. It is not necessary to invoke the application of 
 the rule that bribery muxt be proved, not presumed, to completely exoner- 
 ate him from such a charge in this as well as all other alleged cases. 
 
 The witness Emil Shagren is relied upon very much to prove bribery 
 in this case. It does appear from the testimony of Emil Shagreu that 
 one Mr. Hale, a friend of Mr. Washburn, had one or two interviews 
 with this witness, during which he tried to persuade him to support 
 Mr. \Vashburu. But this witness, when in need of money, received five 
 dollars from Mr. Hale, according to his own confession, and afterwards 
 supported Mr. Donnelly. This money, if paid to him at all, was on ac- 
 count of expenses that Mr. Shagren would be required to incur while 
 engaged in using his influence with his friends for the election of Mr. 
 Washburn. In the course of the alleged conversation with Mr. Hale it 
 is claimed that Hale proposed to bribe Mr. Shagren and induce him to 
 turn from his support of Mr. Donnelly to the support of Mr. Washburn. 
 But a careful reading of the testimony will show that this even is not 
 true. Shagren says in his testimony (page 15) that Mr. Hale said to 
 him, "Is it greenbacks you want f I am told you are a delegate to the 
 Oreenback convention, and that you area Donnelly man/' A further 
 reading of the testimony will show that Mr. Hale could ha\e referred. 
 when he used this language, to nothing more than the politics of the 
 witness. Mr. Donnelly was running as a Greenback candidate. Aside 
 from the fact that Shagren confesses that he was willing to be bribed 
 to support one man while he treacherously supported another, this wit- 
 ness is shown to be entirely unworthy of credit. He is directly im- 
 peached by at least three witnesses called by the contestant. He testi- 
 fies (pages 1(5 and 17) positively that Ole Mahler told him at Harmouia 
 Hall that he could get twenty-five dollars to vote for Washburn and to 
 use his influence for him; that Sevit Mahler told him he was paid to vote 
 for Washburn ; that John Oleson told him he got two dollars to vote 
 for Washburn and to use his influence for him ; and that Daniel Getchel 
 had received money to vote for Washburu. Ole Mahler was called by 
 contestant as a witness, and swears (pp. 116, 119) that he was a sup- 
 porter of Donnelly, and also that he never stated to Hinil Shagren that 
 he had been paid money, or other valuable consideration, for his vote; 
 that he attended the polls to look after the interests of some of his 
 friends, candidates for county offices, and that he did not ask anybody
 
 DONNELLY VS. WASHBURN. 481 
 
 at the polls to vote for Washburu. Ole Mahler says in his testimony 
 (page 119) : 
 
 I have read a piece in the Pioneer Pre->. giving the statement of Mr. Shagreii of 
 my meeting him at Harmnnia Hall the eievi-nth ilay of November last, and that I 
 told him that I had S-J5 from Wasliburu. I deny every word of it. I was not at Har- 
 monia Hall. 
 
 John C. Oleson directly impeaches Shagren in the most positive terms. 
 Ou this point his testimony is Driven in. full (page 87) : 
 
 (}. Do you know Emil Shagren .' A. Ye.-, sir. 
 
 ( v >. IMciise state if you had a conversation with Emil Shagreii at Morrison Brothers' 
 lumber-yard, or at any other place, on or about November 7 la>t. ami stated t< 
 
 that you had received money to cast your vote for Mr. Washburu at the last Con- 
 gressional election. 
 
 (Objected to as irrelevant and immaterial, aiid as not addressed to any specific 
 charge in the notice of contest.) 
 
 A. I never had anything to do with Mr. Shagren about election matters, and I had 
 no such conversation with him. 
 
 Q. Did you not state to Mr. Shagreii that Chase paid you two dollars to vote for 
 Washburn ? A. I did not. 
 
 Q. Now, please state whether you were paid any money by any one in consideration, 
 that you cast your vote for Mr. Waahborn and use yonr influence in his behalf at the 
 last election. A. I was never promised any money from any party : I was never paid 
 any money by any one. 
 
 (,. Did you not go to Mr. Chase after election and ask him for more money, stating 
 that yon had nor received as much a* the rest of the boys IA.. I did not. 
 
 Q. Did you not state to Emil Shagren that you had demanded more money of Chase, 
 and that Chase had answered that if he paid you anymore that he would have to pay 
 it out of his own pocket ? A. No, -sir : I never had any conversation with Mr. Shagren 
 about it. 
 
 Daniel Getchel also directly impeaches the witness Shagren (pages 
 
 86-87) : 
 
 ( }. How long have you belonged to that party (Democratic) ? A. Since the election 
 of Mr. Tilden. 
 
 Q. Do you know Mr. Emil Shagreu ? A. Yes. 
 
 Q. Ph-ase >tate whether at any time you stated to Emil Shagren that you had re- 
 ceived money from any party or parties for your vote at this last Congressional elec- 
 tion, or for yonr influence or services, from any party. A. I did not make any such. 
 incuts to Mr. Shagreu. 
 
 Q. What did yon state? A. I object, and decline to answer. 
 
 <>. Please state whether you have received any money from any party at this last 
 Congressional election from any party for your Vote, or services, or influence. A. I 
 decline to answer that question. 
 
 Q. Will you state whether you have received any money from W. D. Washburn, or 
 from any party acting in his behalf, with the understanding and agreement that you 
 should cast your vote for \V. I). Washburn for Congress? A. I received no money 
 from Mr. Washburn, nor from any of his friends, direct or indirectly. That Mr. Wash- 
 burn, nor any of his friends, never approached me nor came to me to ask me to vote 
 for hiih or use my influence, and I would not have voted for him if he had. I voted 
 for Mr. Donnelly and used all my influence for him. 
 
 Q. Please state whether or not you did say to Shagren that you was paid to vote 
 tor Washburn, and that you had voted for Washburn. A. I did not state any gftich a 
 thing. 
 
 Q. Please state whether you know of any other parties who have received money 
 to vote for Mr. Washburn. A. I do not know. I have no knowledge whatever. 
 Cross-examination : 
 
 Q. Do you know of any voters receiving any money, promise of office, or other 
 reward for voting for Mr. Donnelly at the last election for member of Congress? A, 
 I have no knowledge of anything of the kind, sir. 
 
 It is thus made to appear by three witnesses that Shagren is a willful 
 perjurer. It is proper to observe here that with the exception of the 
 witnesses Mahler, Olesen, and Getchel, whose testimony is referred to 
 above, the contestant has failed to call persons who would know the 
 facts in relation to the alleged bribery, but he has generally relied upon 
 H. Mis. 58 31
 
 482 DIGEST OF ELECTION CASES. 
 
 getting persons who bad their pretended information second or third 
 hand, and in most instances were persons whose testimony was of a very 
 doubtful character, and who had some grievance. 
 
 The testimony of Bernard Cloutier (pages 211-213) is relied upon to 
 prove his bribery. It appears from this witness's testimony that he was 
 in the market as a worker at the polls, and was somewhat disgusted 
 because in the past he claimed to have been promised a good deal of 
 money for his work, but had never got anything for it. He, however, 
 states that he did receive from one Charles W. Johnson, who was in 
 some way connected with the Republican district committee, some money 
 for his influence and work. He says he was to go out in the country 
 and electioneer for Washburu and the rest of the Republican ticket. He 
 also says he was induced to do some work for one John Baxter, who- 
 was a candidate for the legislature. He further says: I wanted him 
 to give me money enough to pay my expenses, to furnish a team, and 
 pay for my team. He told me all right ; to go and hunt up a team, and 
 start out the next morning." And he distinctly says that he told Baxter 
 that Washburn was his candidate, and this before he was employed to 
 do any work in the election for any candidate. The following is an 
 extract from his testimony: 
 
 Mr. Johnson, as I understood, was secretary of the Republican district committee. 
 I think I have given all of the conversation between Johnson and myself, or Washburn 
 and myself, in reference to my services in that campaign. There was no money or 
 other consideration offered to me or received by me for my vote for Mr. Washburn or 
 anybody else. 
 
 My choice as between Mr. Washburn and Mr. Donnelly prior to any negotiations 
 for iny services was for Mr. Washburn. I knew Mr. Washburn, and did not know- 
 Mr. Donnelly. I was not authorized or requested to use any part of this money to 
 secure votes for Mr. Washburn in any way, except to pay iny expenses and time. I 
 do not know of any money or other valuable thing being paid, or any promises madfr 
 by Mr. Washburn or any person in his behalf, to any voter to influence his vote in 
 his favor at said election. 
 
 The report of a portion of the committee in two places finds by the 
 testimony of this witness alone that he was paid $20 by Charles W. 
 Johnson in Mr. Washburn's office, in his presence. We are content to 
 say that there is not a syllable of evidence in the entire record which 
 even tends to prove that this is true. On the contrary, the witness 
 Cloutier, in express terms, states (p. 212) that it was paid to him by 
 Johnson in the absence of Mr. Washburn. There is nothing in his 
 testimony which tends in any sense to show an attempt to bribe him, 
 or to employ him to bribe others, to vote for Mr. Washburn. 
 
 Members of the committee, having referred to the testimony of 
 Charles Berens, George C. Morton, Emil Shagren, and Bernard Cloutier, 
 then proceed to lay down the proposition that, as a matter of law. Mr. 
 Washburn must be held to have been guilty of bribery because he failed 
 to rebut their testimony, regardless of the fact that when the testimony is 
 examined it does not show Mr. Washburu to have himself, or through any 
 authorized agent, paid or promised a single cent of money to any person. 
 There is no rule of law which requires a party charged with an offense, 
 which is not proved, to himself enter upon a defense; nor is it true 
 that, in the trial of a case where a crime is charged, any presumption 
 arises against the party charged because he does not prove himself in- 
 nocent, or merely because he is charged with the offense. The rule of 
 law is universal, that a man must be proved to be guilty by competent 
 evidence upon the trial. There can be no presumptions against the 
 party charged simply because he furnishes no evidence on the trial. 
 The exigencies of the contestant's case may be the excuse for under- 
 taking to enunciate any such anomalous and absurd proposition of
 
 DONNELLY VS. WASH BURN 483 
 
 law. The astonishment is that the proposition should find supporters 
 in the committee. 
 
 It is claimed that in Crookston precinct, in Polk County, there were a 
 large number of illegal votes cast by parties that worked upon the con- 
 struction of a railroad who were not inhabitants of that precinct and 
 had no right to vote there. This claim is chiefly based upon the alleged 
 fact that the vote of this precinct was too large. The whole vote of the 
 precinct was -58 as returned. The county of Polk lies on the Red Kiver 
 of the North, and extends along it for over sixty miles, and Red Lake 
 Kiver passes directly through it in an east and west direction. The Saint 
 Paul. Minneapolis and Manitoba Railroad passes through its entire 
 length, north and south, over sixty miles. Crookston is its chief city, 
 being at the crossing of the railroad with Red Lake River. Now, it 
 must be borne in mind that a residence may be acquired in a county in 
 ten days for the purpose, of an election, provided the voter has resided 
 in the State long enough to become a resident and naturalized citizen. 
 That county, for a year or more previous to the fall election of 1878, 
 swarmed with immigrants and land hunters. At the governors election 
 in 1877 there was polled in that county 257 votes, of which 238 were for 
 Pillsbury. Republican, and 19 for Banning, Democrat. From 1S77 to 
 187s there was an increase of voters in that county much less than might 
 have been anticipated. The contestant does not attack any precinct of 
 Polk County except Crookston. and upon this point he swears four wit- 
 nesses Johnson (page 190), Sampson (page 232), Myer (page 238), and 
 Church (page 223). It is impossible to give a detailed analysis of the 
 testimony of these witnesses in a report. 
 
 Johnson's testimony shows that every voter of whom he speaks had 
 a clear right to vote. He speaks of a number of persons as "Thomp- 
 son's crew," but he said that they had all been in the district two or three 
 weeks or a month before the election. Some were old settlers and some 
 had been there several years, others for only two or three months. On 
 cross-examination this witness shows that he knows very little about 
 the matter, except what he has been told by others, chiefly since the 
 election. 
 
 The witness Sampson, undertakes to give a census of Crookston, but 
 before he gets through it clearly appears that he knows little about the 
 total number of voters in the precinct. After this witness has given a 
 census, as tar as he can, of the resident voters of Crookston, he says: 
 
 There are two or three shantie-. in the village, but I do not know the people. I 
 could not swear but there might be a few more ; could not be many, as I am well ac- 
 quainted there. If there are more I have not seen them ; they may be out in one cor- 
 ner, but I have not seen the houses. I forgot to state that Hitchcock & Brother rnns 
 some big farms on the northern part of the township. I conld not state whether they 
 wen- voters or not. 
 
 He further says: 
 
 I know the farmers, and I know the country. .1 do not know the steamboat men, 
 the men who are coming and going. 
 
 And on the question as to whether any illegal votes were polled, when 
 asked the question, " Did you see any railroad workingmen vote at that 
 poll at that time ?" he says: "No; I was not up at the house." He 
 does say that a minister of the gospel who preached in another town 
 voted in Crookston. To show the utter unreliability of the witness 
 Sampson, an extract from his testimony is here given. The only apology 
 for giving this is found in the fact that some of the committee lay great 
 stress upon this witness's knowledge of the voters of Crookston precinct,
 
 484 DIGEST OF ELECTION CASES. 
 
 and rely upon it to conclusively show that tlure was a large number of 
 illegal votes cast at the election of 1878: 
 
 Q. Who catne into this county in the mouth of August la-t a^ settlers '. A. I never 
 stated that I knew all the tanners in tlie county : I know thd- most of them. 
 
 Q. Who came iuto the township of Fisher during the months of August, Septem- 
 ber, and October 26, 1878 ? A. That is one thing I have kept no record of. No, I keep 
 no record. 
 
 Q. Who came iuto the village of Crookstou during the mouths of August, Septem- 
 ber, and up to October 2I. 1-7-. !> make this their home f A. I have kept no record; 
 some of those I named came during that time. I know that a saloon-keeper down 
 at Box's place, he began last tall pretty late: Kisteuniaeher and his partner started 
 late last fall. I know Kn-tzsetniar started some time in August some time. Thar har- 
 ness mau, he put his shop up in the middle of the summer : also Colter bnilded last 
 summer. 
 
 Q. Do you swear that you stated the names of all the male adult residents of the 
 village of Crookstou who resided there more than ten days before November 5, 
 1878 ? A. No, I do not. I told you that there might be a few more. 
 
 Q. How many boarders had Mr. Box of male persons over 21 years of age who had 
 resided in the village of Crookstou more than ten days prior to the election, whose 
 names you have not stated? A. I could not say that. 
 
 Q. May he not have had quite a number ' A. For all I know : I keep no record. 
 
 Q. How many men over 21 years of age who had resided in the village of Crooks- 
 ton more than ten days prior to the election held November 5, 1678, boarding at the 
 Sherman House, whose names you have not stated? A. That is one thing no mau 
 could state. There were people coming and going every day. 
 
 Q. May there not have been quite a large number? A. May have been a good 
 many. 
 
 Q. Were there not quite a number of private boarding-houses in the village of 
 Crookston during the fall of 1878, and at and prior to the election held November .">. 
 1878? A. There was some people stopping, coming and going. Some regular board- 
 ers, I should think, at these private boarding-houses. 
 
 Q. Were there not men of the age of 21 years who had resided in the village of 
 Crookston more than ten days prior to the election held November 5, 1878. whose 
 names you have not stated, who were boarding at those private boarding-houses at 
 that time? A. I don't know if there were, and couldn't say if there was any people 
 coming and going. The boarding-houses were full sometimes. 
 
 Q. May there not have been quite a large number of such men, whose names you 
 have not given? A. I can't state that. 
 
 Q. Were there not quite a large number of single men in this locality of the age of 
 21 years who had resided in the village or towusliip of Crookstou more than ten days 
 prior to the election held November 5, 1878 ? A. I could not state that. There may 
 have been. 
 
 Q. How many children are there in the public school in the village of Crookston f 
 
 A. What I have learued from the Crookstou paper and School Superintendent Steven- 
 son, 120 scholars. The district includes four towns. I know there are children there 
 from other townships. 
 
 Myer's testimony has reference only to a conversation with one "W. 
 
 B. Moore, whom he imagined was an illegal voter, and whom he stated 
 told him he was not a naturalized citizen. On this he founded a theory 
 in his own mind that fraud had been committed. This witness started 
 on the mission of finding out whether Mr. Moore was a naturalized citi- 
 zen or not, and succeeded in finding the record, which satisfied him that 
 he was. This is an illustration of the unreliability of loose statements 
 made by persons after an election. They are often made merely to 
 badger and annoy and excite the curiosity of some over-officious man. 
 such as doubtless Myers and other of the witnesses called in this ca>e 
 were. The other witness, Church, recites some conversations, and un- 
 dertakes to give some conclusions about the number of legal voters in 
 Crookston precinct, but when he is fully examined he makes clear two 
 things only: 1st. That he has no good data upon which to base any of 
 his statements; 2d. That he was a disappointed candidate for sheriff at 
 that election, who tried very hard to induce all these voters, whom he 
 now claims were illegal voters, to vote for him, but failed. 
 
 Members of the committee, however, hold that many persons who
 
 DONNELLY VS. WASHBURN. 485 
 
 voted in Polk County ought to be regarded as illegal voters because 
 they worked on a railroad fourteen miles from the voting precinct, and 
 not because they resided outside of it: and for the further reason that 
 the railroad company for whom they worked transported them to the 
 polling place in a railroad car. 
 
 It is proper to observe here, again, that during the short time a por- 
 tion of these voters were going to and returning from their voting place 
 their employers paid them for their time; and it may be observed, also, 
 that in some of the newly constituted voting places, ballot-boxes, such 
 as were required by the letter of the law, were not provided. An im- 
 provised candle box was used at one place, and a cigar box at another. 
 But there is no law which requires the rejection of the votes cast in such 
 receptacles, in the absence of a whisper, or pretense of proof, that the 
 contents of the boxes were tampered with. No such charge is made by 
 the contestant, in his notice, with reference to any of the precincts in 
 the Congressional district, and there is no proof to sustain any such 
 claim. Experienced persons on the frontier know that people there 
 have to put up with what they can get. But the contestant desires to 
 disfranchise a large number of these hardy pioneers because of their 
 poverty and their inability to provide themselves with the usual and 
 ordinary facilities tor exercising the elective franchise. 
 
 It is not proposed only in a few instances to review the cases where it 
 is alleged that individuals were bribed by Mr. Washburn or his friends. 
 We have sufficiently shown that Mr. Washburn, personally, had noth- 
 ing to do with bribing any voter, nor did he authorize any person to 
 bribe voters for him. It may be admitted that some persons were em- 
 ployed by members of the Republican party, and by friends of Mr. Wash- 
 burn, to work at the polls and to induce the voters to turn out on elec- 
 tion day. Certain members of the committee claim that about 22 per- 
 sons were bribed to vote for Mr. Washburn. The testimony does not 
 disclose in but few cases who these 22 persons voted for, or that they 
 voted at all. 
 
 Glut' Larson is the first one. He resided in the city of Saint Paul. He 
 says in his own testimony, in express terms, that he did not receive any 
 money or other valuable consideration for the purpose of securing his 
 vote or his influence at the polls on behalf of Washburn at that election. 
 He does say that he was paid ten dollars to peddle tickets for Mr. Wash- 
 burn and for his time while doing so. He expressly states that he was 
 not requested to use his influence for Mr. Washburn, and he also states 
 that he used no part of this money to bribe anyone to get votes for any- 
 body. He further says that he was a Republican, and voted for Wash- 
 burn (pttge 1'8). 
 
 Abraham Werrick. another one of the alleged bribed voters, makes 
 clear by his testimony that he was a supporter of Washburn, and that 
 he received no money to vote for him (page 29). 
 
 William M. Leyde. another alleged bribed voter, says he took part in 
 the general campaign in behalf of the Republican ticket; that he sup- 
 ported Washburn; and that he received no money from Mr. Washburn 
 for anything he did. It is true this witness says he received money to 
 canvass a portion of his county. This witness was a Republican (page 
 489). 
 
 C. Hey ei. another alleged bribed voter for Washburu, did do some 
 work in the general canvass, but lie was not engaged to participate 
 specially in the election until after he had declared, in most emphatic 
 terms, when asked, whether lie would vote for Donnelly, that he would 
 not, and that he would not vote for a Greenback man; and, also, that
 
 486 DIGEST OF ELECTION CASES. 
 
 he would support Mr. Washburn against Mr. Donnelly. In the work 
 that this man did he says he simply peddled tickets, and that he did not 
 request or persuade any one to vote for Mr. Washburn (page 55). This 
 person also received five dollars from a man by the name of Castle, a 
 Democratic candidate for senator, for work on election day (pages 56, 
 57). 
 
 It is charged that John C. Oleson was also bribed. This charge rests 
 upon the testimony of Emil Shagren, already shown to be directly im- 
 peached and to be unworthy of credit by at least three witnesses. Ole- 
 son, himself, says in most emphatic terms that he was never promised 
 any money from any party, and was never paid any money by any one 
 to take part in the election (pages 87-92). 
 
 A man by the name of Shack is also alleged to have been bribed to 
 vote for Washburu. This allegation rests upon the testimony of the 
 witness Eogers, which is wholly and entirely hearsay. Shack was not 
 called. Kogers does not undertake to give the language of Mr. Shack, 
 but only arrives at a conclusion that Mr. Shack, an editor of a paper in 
 Minneapolis, turned from the support of Mr. Donnelly to that of Mr. 
 Washburn, because the Democrats had never helped him in his news- 
 paper enterprise (page 89). Shack in the public prints denies the whole 
 of Rogers's testimony. 
 
 Karl Findler is claimed to have been bribed. An examination of the 
 testimony relating to his alleged bribery furnishes us a key to a vast 
 amount of the absurd claims made in this case. A witness, Guertin,. 
 undertakes to state that this man Fiudler sold his vote for a sack of 
 flour. It turns out that Guertin was one of those unsophisticated but 
 would-be knowing men who nosed about and was rewarded by being 
 made a fool of by all sorts of people, who imposed on his credulity by 
 telling stories which they thought were suitable to his fancy. Guertin 
 does say (page 95) that Findler made a passive admission that he had 
 obtained a sack of flour from Mr. Washburn's mill to vote for him. This 
 witness says that he had a talk with Fiudler, who -was a German and 
 spoke the English language imperfectly, in the presence of a man by 
 the name of Martin Graham. He says the conversation started between 
 Findler and Graham, and in a joke; that Mr. Findler's reply to a ques- 
 tion of Graham's "was child-like and innocent, without evasion" (page 
 95). This man Graham also testifies in this case that Karl Findler said 
 something to him about "a hundred of flour." and then he says that he 
 knows himself that this conversation that Mr. Guertiii heard was all a. 
 joke, and he further knows the fact that Findler made a statement about 
 the flour just to aggravate Guertin and see him blow about it, and that 
 in fact Mr. Findler got no flour. The following is a portion of Graham's 
 testimony : 
 
 Q. Will you state uo\v whether, from the character or' the conversation and the man's 
 manners when he .said that he ^nt tin- hundred of dour for voting, yon thought he, 
 was in earnest .' A. I did not. 
 
 Q. Was it in a. joking conversation? A. I believe it was. 
 
 Q. Do you ami that man \\ork together, and art- yon on friendly terms .' A. We 
 have worked together for a month past, and \ve are friends. I have voted fur Mr. 
 Donnelly. Mr. <niertin was present and landing l>y at the time that Karl Findler 
 made the statement about the flour. 
 
 Q. Do you consider it a joking matter to ha\e a man confess bribery .' A. He, just 
 said it to aggravate Uuertin. hi/cause he kne\v that Uuertiu would blow about it, and 
 I know that lie never got a grain of flour. 
 
 Q. How do you know that lie never got any of that flour .' A. I aiu certain of it. 
 
 Q. How are you eertain that he did not get it ' A. Because I know that he did not 
 get it. 
 
 Sevit Mahla. of Minneapolis, is mentioned as another of the bribed
 
 DONNELLY VS. WASHBURN. 487 
 
 voters. The only testimony to support this mention is that of the wit- 
 ness Emil Shagren, on the character of which we need make no fur- 
 ther comment (page 16). 
 
 Louis Kundsen is said to have been bribed, or to have received $5 to 
 work all day at the polls, but this money was not received from Mr. 
 Washburn, but from his employers, Bernard & Cope, who paid it to him. 
 as wages. He was not required to work specially at the polls for Mr. 
 Washburn, but simply to peddle tickets (pages 102-3). 
 
 Mr. Bernard, who paid Kundsen, said nothing to him about working 
 for any particular man on the ticket (page 103-4). The witness said he 
 did not try to influence any man's vote at that election (page 164). This 
 man Kundsen in his testimony expresslv says that he would have voted 
 for Mr. Washburn if he had not been employed at the polls. His testi- 
 mony also explodes much of the theory of contestant on the subject of 
 bribed voters, notwithstanding the fact that .several persons were em- 
 ployed to work at the polls on election day. Here is an extract from. 
 dis testimony (page 103): 
 
 Q. Do yon mean to say that you sold your vote cit the election of November 5, 
 1878 ? A.' No. 
 
 Q. Would you have voted just as you did without being paid for it f A. Yes, sir. 
 
 <,. Do you know nt' any money having been paid for votes before or at the Novem- 
 ber election. 1*?-. !>y Mr. Washburn or any person aeting for him with his knowledge 
 or consent ? A. N'o. 
 
 (,. Do you know of any promise having been made or reward offered to any person 
 for his vote by Mr. Wa>liburn or any person authorized by him? A. No. 
 
 Q. Do yon know of any vote having been cast for Mr. Washburn at the election No- 
 vember ">, 1-?-. which wu- paid for by Mr. Washburu or any person authorized by 
 him ? A. X>. 
 
 Louis Paulson is said to have been bribed to vote for Mr. Washburn. 
 The testimony does not support this claim iu any degree. There is some 
 highly unsatisfactory testimony offered to show this man was paid $5 
 (not bycontestee or by his agent or special friends) to peddle tickets at 
 :hc polls (page 10-4). 
 
 All that has been said in relation to Louis Kundsen will apply to Louis 
 Paulson (pages 101-4). 
 
 W. E. Metcalf, alleged to have been bribed to vote for the sitting 
 member, makes very elear by his testimony that he was uot engaged be- 
 fore or on election day in the interest of either Washburn or Donnelly, 
 and that he did not do any work in the interest of Mr. Washburn. He 
 did handle tickets, but for other candidates. He was not a partisan of 
 either Washburu or Donnelly ; neither of them was his choice. He 
 was a Republican and was employed by certain candidates who were run- 
 ning for State and county offices. He was employed to get out the vote 
 in his precinct by providing means of transportation for voters who had 
 no teams (pages l>.">-5). 
 
 IVter Qnady it is pretended was bribed in Washburn's interest. 
 This the witness expressly denies, and says that he did not "receive 
 any money between Washburn and Donnelly" (page 201). He says he 
 did not urge any person to vote for Washburn for Congress. The wit- 
 ness Quady declined to state who paid him money to work at the polls, 
 but he repudiates the charge that he received any money, or promise of 
 money, ''between Donnelly and Washburn," from anybody. 
 
 Louis N. Gayner, said to have been bribed by Washburn, or his 
 friends, also says that he received no money for his vote, influence, or 
 .services, at or before the election, from Mr. Washburu, or any person 
 acting for him or in his behalf. He declines, when on the witness stand, 
 to state for whom he voted. He does savon cross-examination that his
 
 488 DIGEST OF ELECTION CASES. 
 
 opinion was in favor of Washburn, but that the interest he took in the 
 election was not on his account, but on account of some other person 
 (pages 206-7). 
 
 Peter Engberg, who was alleged to have been bribed, says, also, that 
 he was employed for some of the local candidates, but that he took no 
 interest in the election of Washburn further than the majority of voters 
 in Minneapolis. He expressly says that he received no money from Mr- 
 Washburn, Major Hale, or Charles W. Johnson. He also says that he- 
 had no financial or private interest in the election of Washburn ; that 
 he was promised nothing and offered nothing for his services, influence, 
 or anything connected with Washburn's election ; and he further says 
 that he knows of no vote, or services, or influence for Mr. Washburn 
 that was secured by him, or any person for him, by the payment or 
 promise of any money, or other valuable thing. He testifies that he 
 was employed to do nothing in connection with the election, except to 
 get out a full vote in favor of the ^Republican ticket (pages 207-209). 
 
 Bernard Cloutier (pages 211-213), who is one of the persons supposed 
 to have been bribed, says, in his testimony, he received some money from 
 Charles W.. Johnson for his influence and work at two different times r 
 and that he was to go out in the country and electioneer for Washburn 
 and the rest of the Republican ticket. This service he performed. And 
 then he says : 
 
 There was no money or other consideration offered to me or received by me for un- 
 vote for Mr. Washburn or anybody else. My choice as between Mr. Donnelly and 
 Mr. Washburn prior to any negotiations for my services was for Mr. Wash-burn. I 
 knew Mr. Washburn, and did not know Mr. Donnelly. I was not authorized or re- 
 quested to use any part of this money to secure votes' for Mr. Washburu in any way, 
 except to pay my expenses and time. I do not know of any money or valuable thing 
 being paid, or any promisee made by Mr. Washburn, or any person in his behalf, to 
 any voter to influence his vote in his favor at said election (page 213). 
 
 .Tollef G. Fladeland, said to have been bribed, admits in his testimony 
 that he received money to go to North Fork and Crow Lake Townships 
 to see some parties who had not been seen, and leave some tickets. He 
 says, using his own language: "I was a Washburu man in politics at 
 the time Searle and Cooper called on me." He had formerly been a 
 Democrat, he says, but not recently. The contestant here turned aside 
 from his contest and desired this Scandinavian to settle the question 
 which recently agitated the whole country, to wit: Who was elected 
 President of the United States, Hayes or Tildenf The witness was in 
 doubt, and refused to swear that either Hayes or Tilden was elected, 
 (pages 221-22.) The testimony of Cooper shows Mr. Fladeland received 
 money to pay his livery bill, &c., from Searle and Cooper, which was- 
 never repaid or expected to be repaid to them (pages 256-7). 
 
 J. V. Brower, a lawyer residing at St. Cloud, Minnesota, and regis- 
 trar of the United States land-office at that place, is claimed to have 
 been bribed to vote for Washburn. He is one of the twenty-two whose 
 names are given in a list of bribed voters. His testimony discloses the 
 fact that he was a Eepublicau and a warm supporter of Mr. Washburu. 
 He paid for some cigars in his electioneering for Washburu. It doe* 
 not appear that this man Brower ever received any money, himself, for 
 Ms services (pages 244, &c.). 
 
 The claim that A. J. Clark was bribed needs little or no comment. 
 
 He is claimed to have been bribed to vote for Washbuni. It does 
 not appear for whom he voted, or even that he voted at all for Congress- 
 man in 1878. The same may be said of others of the alleged bribed 
 voters.
 
 DONNELLY VS. WASHBURN. 489 
 
 The testimony of one Xathau Richardson is relied on to prove Clark's 
 bribery (pages L'S.~)-'.i. Xo money is shown to have been paid him at 
 all, and no agreement to pay him money is shown to have been made 
 (page 286). Richardson, on the contrary, says no money was paid any 
 person by Washburn or his agent to influence votes. 
 
 Here is an abstract from his testimony: 
 
 Question. Do yon. of your own knowledge, know of any money paid or promised, 
 any reward offered or promised, or any valuable consideration whatever given or 
 promised by William D. Washburn. or his agents.0r any person or persons acting for 
 him. with his consent or knowledge, To any person or persons in the third Congres- 
 sional district of the State of Minnesota for his or their votes or influence for William 
 D. Washburn for member of Congress at the last general election, held Novembers, 
 Answer. No. sir; I have no knowledge of any money being paid or any reward 
 offered or any valuable consideration given or promised to any person or persons for 
 their vote or influence for W. D. Washburu. 
 
 Q. Do you know of your own knowledge of any money being used at said election 
 by William D. Washburn or his agents, with his consent or under hi.s direction, to in- 
 duce voters to corruptly vote for William D. W T ashburn at said election held Novem- 
 ber 5, l-7r-. who would otherwise have voted for Ignatius Donnelly f A. Not that I 
 know of. I do not know of anybody using money for any such purposes. 
 
 The letter referred to in the testimony by Richardson was never sent 
 or intended to be sent by him to anv person. He savs of that letter 
 
 (page 290) : 
 
 Q. Did you send the letter ottered in evidence and marked Exhibit A., E. D. L. to 
 Mr. L. Fletcher, of Minneapolis? A. No: I did not send it to him or anybody else. 
 
 EedirecT examination : 
 
 Q. Was that letter lost by you before it was mailed? A. I think I never intended 
 to mail it : it was not lost before it was mailed: it was not mailed by me; I don't 
 know that it was by anybody. 
 
 The letter itself (page 285) does not refer to the matter of bribing voters 
 or to bribery in any form ; it only speaks of money to be used in aiding 
 Clark to publish his paper, in which he was already opposing Donnelly. 
 
 Mr. Buss, of Long Prairie, is alleged to have been bribed to vote for 
 Washburn. In the light of the evidence this charge descends to the re- 
 diculous. One Milo Porter testifies that Buss was a Republican, the 
 treasurer of Todd County, and an ardent supporter of Washburn 
 throughout (page 293). He also says Buss, in a public place and in the 
 presence of a number of persons, offered him $50 to support Washburn 
 (page 293). The whole talk between Buss and Porter was of such a char- 
 acter as to make it clear that Buss was only joking with and badgering 
 Porter for the purpose of hearing him talk while in a heated political 
 discussion. 
 
 Porter swears he put a card in a paper about the matter, which was 
 false (page 295). He also admits that be had entered the list as the "cham- 
 pion littr" of his locality (page 295). He admits that he was a great joker 
 himself (page 295), and he then answers the following question : 
 
 Q. Do you know of your own knowledge of any money being paid or reward given 
 by W. D. Washburn, or any person acting for him with his kuowledge and consent, to 
 any person or persons for their vote or influence at the last election of November 5, 
 - or the campaign just preceding such election ? A. I know of none. 
 
 On such testimony as this of Porter's the committee is asked to find 
 that men were bribed to vote for the contestee. 
 
 A man by the name of Kitowski is said to have been bribed in Wash- 
 burn's interest, and this is claimed on the testimony of the witness 
 Brower. It may be true that Kitowski received some money for cigars 
 and other expenses incurred at his place in the interest of Washburn ; 
 but there is nothing in the testimony that indicates that he was paid 
 anything to support Mr. Washburu (pages 245, C. 253). Kitowski is not
 
 490 DIGEST OF ELECTION CASES. 
 
 called as a witness, but the witness Armstrong, in his testimony, states 
 that Kitowski denied ever having received a cent of money (page 304.) 
 
 Henry Armstrong, the last of the list of alleged bribed voters, says 
 in his testimony that he was not a supporter of Mr. Donnelly, and had 
 made up his mind to vote for Mr. Washburn before any negotiations 
 were entered into with him in relation to supporting Mr. Washburn. 
 He does admit that he received money to see if certain men would go 
 to the polls, and if necessary to go with his team and get them. He 
 testifies that he used the money received by him to pay for his team 
 and for his work. He did his work before election, aud he was a mild 
 kind of worker. When he went to a voter, he says he did not argue in 
 favor of Mr. Washburu, but simply gave him a ticket and he could vote 
 as he pleased (page 303). 
 
 We think we have pursued this question of bribery of voters far 
 enough. 
 
 EFFECT OF BRIBERY WHEN PROVED. 
 
 As it is not claimed even by the contestant that enough bribed votes 
 were cast to change the result of the election in the district unless all 
 numbered ballots (2,282) cast for contestee are rejected because they 
 were numbered, and unless the entire vote (538) cast for him in Isanti 
 County and the total vote (832) given for him in Polk and Kittson 
 Counties are thrown out on account of alleged defective returns, it 
 would seem to be unnecessary to go into the question of bribery save for 
 the purpose of vindicating the sitting member. 
 
 As it is very clear, and it will be admitted that the polls can be 
 purged of all the alleged bribed votes, or the entire vote of certain vot- 
 ing precincts wherein the alleged bribery occurred can be thrown out 
 without affecting Mr. Washburn's majority, the rule contented for and 
 quoted by the author of the majority report of the committee (page 16), 
 taken from the minority report in Platt vs. Goode (Con. Elec. Cases, 
 1871-'76, p. 650) would still give Mr. Washburu his seat. 
 
 The English cases cited from Gush. Par. Law (p. 70, sec. 189, and page 
 68, section 181) do not goto the extent, as we apprehend, of holding that 
 the whole election iu a district where there are several voting places is 
 void because of the bribery at one of those places of an insufficient 
 number of votes to affect the result, but they do go to the extent of hold- 
 ing that an election in a particular voting place may be declared void. 
 
 The rule undoubtedly is in this country that where bribery/ fraud, or 
 intimidation is so interwoven with the vote of any voting precinct that 
 it cannot be eliminated from the aggregate vote cast with certainty, 
 the whole vote of the precinct may, and perhaps should, be rejected. 
 The unassailed votes in other voting places would, however, still stand. 
 Fraud or bribery does not vitiate what it does not impregnate. 
 
 If bribery were proved (as it is not) and brought home to the contestee, 
 we should not draw any fine legal distinctions to save him his seat. 
 
 The American cases cited in contestant's brief (Abbott vs. Frost, Con. 
 Elec., 1871-'7<>. page 504. and Platt >*. Goode. supra) are all to the effect 
 that before a member can be unseated by reason of his own bribery of 
 voters it must appear that his majority was obtained by such means. 
 
 To find that a candidate received an untainted majority of the votes 
 cast, aud on that find that he was not elected for the reason that other 
 votes were rejected on account of bribery or other cause, would be a 
 bold absurdity. In a contested-election case iu either branch of the 
 Congress of the United States the sole question is one of fact in the light
 
 DONNELLY VS. WASHBURN. 491 
 
 of the law, viz : Who of the parties to the case was elected, if either? 
 The question in no possible case can involve the fitness of the sitting 
 member to hold his seat. In England, where there is no written con- 
 stitution on the subject of expelling a member, it may be found that the 
 practice has grown up of inquiring into the whole conduct of a member 
 in the course of a contestation; and if he is found unworthy, or rather 
 ineligible, to hold his seat from any good cause, he may be unseated or 
 kept out of a seat, notwithstanding lie may have received a clear ma- 
 jority of the honest votes cast in the election. This under some circum- 
 stances would only be another mode of expulsion. 
 
 Our Constitution provides the mode, and it is the only one pointed 
 out, for purging the House of a member who, for crime or other cause, 
 is unfit or unworthy to hold his seat. The Constitution provides that 
 the House may " icith th>' concurrence of tiro-thirds expel a member." 
 (Con., Art. I, sec. 5, par. 2.) 
 
 Bribery or other crime committed by a member, and which did not 
 affect or influence the result of his election, could in no sense be con- 
 strued to render his election roi<t. Such has been the holding in several 
 of the States. (:J Watts & Serg., 338 ; Brightley's Elec. Cases, 134 ; Mc- 
 Crary on Elec., sec. 229.) Cushiug, in his work on elections, questions 
 the application of the English rule in this country in relation to the 
 effect of bribery by the candidate or his agent in an election, on the 
 right or power to declare an election void (sec. 190). An examination 
 of the English rule as stated by Cushing in his work on elections will 
 make it clear that the principle the parliament proceeds on in declaring 
 an election void is not that the sitting member was not duly elected, 
 but that by his evil conduct he has rendered himself unworthy of being 
 elected and of holding a seat in the British Parliament. The election 
 of a member under such circumstances is declared void as a punishment 
 to the member and as a mode of condemning evil practices, and also to 
 preserve the purity and freedom of elections in that country generally. 
 (Cush., page 70, sections 189, 190, 191.) 
 
 Most, if not all, of the English cases put the rule 011 the ground that 
 bribery works a "disqualification of the member to be elected to and to 
 occupy a seat in the body to which he was elected. The basis of the 
 English rule which allows in a contested-election case arising over the 
 election of a member of the House of Commons a finding, where it is 
 proved that the person actually receiving the highest number of votes 
 was guilty by himself or his agent of bribing only a portion of his ma- 
 jority, that he was not elected, must be kept in view to enable a clear 
 distinction to be drawn between the rule which obtains in England and 
 the true rule in the American Congre- 
 
 At common law bribery at elections of members of .Parliament was a 
 crime. t Rex r.v. Pitt, 3 Burrows, 133."), &e. ; 1 Russell on Crimes, 155.) 
 The punishment at common law for such bribery was found inadequate, 
 and hence the passage of the statute known as "T/<e treating act* of 7 
 W. Ill, chap. 4 (1095), which provided that if any candidate, after the 
 issuing of the writ for an election, should give or promise any money or 
 entertainment to any elector he should be incapable to serve for that 
 place in Parliament that is, upon that election. The punishment pro- 
 vided by this act was fixed to remedy the defects of the common law- 
 which, while it punished bribery. &c., in elections, provided no dixqual(fi, 
 cation to hold an office, and such had been the holding of courts and 
 legislative bodies. 
 
 It appears from good authority Jacobs (author of the Law Diction- 
 ary), who, after citing statutes, L'^Geo. II, c. 24(1731) ; 9 Geo. II, c. 38;
 
 492 DIGEST OF ELECTION CASES. 
 
 and 16 Geo. Ill, c. 11, which attached some penalties to election bribery 
 in the shape of fines, says: "But these statutes do not create any inca- 
 pacity of sitting in the Ho**e. That depends solely upon the treating act 
 above mentioned." referring to the act of 7 W. Ill, c. 4. (See Jacobs's 
 Law Dictionary, title Parliament, VI (B3), vol. 5, page 76, ed. 1813 j 
 see Russell on Crimes, 155. 15la, ed. 1845.) 
 
 The act of 5 and 6 Viet,, c. 102. extends the treating act of W. Ill, 
 and makes it include the acts of the agents of the candidate as well as 
 of himself, and make such acts, whether of himself or of his agents, " di- 
 rectly or indirectly,'' sufficient to disqualify. The agent is a well-known 
 and recognized element in British Parliamentary elections, of which we 
 know nothing in this country. The candidate selects him in that coun- 
 try, and hence there is no hardship in holding the principal responsible 
 for his acts; otherwise all amenability for criminal conduct at elections 
 there would be avoided. 
 
 There are other English statutes upon the subject of treating, S:c.. at 
 elections, and making candidates responsible for the action of their 
 agents as well as their own acts, which must be kept in miiul in reading 
 Rogers, Douglas, and other English authorities whose comments are 
 upon cases, governed by these statutes, which are not authority for us. 
 
 That bribery by a candidate for an elective office (in the absence of a 
 statute making it a disqualification) does not disqualify to hold the office 
 at the common law was held by the Court of Queen's Bench in Regina 
 vts. Thwaits, 18 Eug. Law and Eq. Reports, 1219, 221, in a proceeding in 
 the nature of a quo warranto to try the title to an office, where acts were 
 shown which were by the court held to amount to bribery, but which did 
 not affect votes enough to change the majority, and the respondent was 
 therefore held entitled to retain his seat as a member of a municipal 
 council. 
 
 The same doctrine is held in Pennsylvania as to a sheriff, in Com. vs* 
 Shaver (3 Watts and Sergeant, page 338). 
 
 The English rule laid down by Gashing in his excellent work, with- 
 out giving either the origin or reason of the rule, is calculated to mislead 
 persons in this country. 
 
 It is quite demonstrable that the rule owes its existence to disquali- 
 fying statutes of England, and can have no application to questions 
 arising in the Congress of the United States under our present Consti- 
 tution and laws. 
 
 In the Galway election case (2 English Reports (Moak's ed.), pages 
 711, 723), where it was argued that bribery, treating, and undue influ- 
 ence were not disqualifications at the common law, and that the act of 
 17 and 18 Viet., chap. 102, repealed all the earlier acts making them a 
 disqualification, and itself only made these acts a disqualification by the 
 thirty-sixth section, "after they had been found guilty of the acts by an 
 election committee," the court, taking a different view, gave the opinion, 
 not that the common law made these acts a disqualification, but that, to 
 quote from the opinion of the judge announcing the decision of the 
 court 
 
 The true construction of the statute itself is that the commission of any of these 
 offenses ipso facto disqualifies the candidate from being elected, or annihilates his 
 status as a candidate. 
 
 The theory of the English cases is that a candidate is for the particu- 
 lar election in which the candidate or his authorized agent violates the 
 disqualifying statutes he becomes ineligible to an election. No such 
 rule obtains under the Constitution and laws of the United States as to- 
 Representatives in Congress.
 
 DONNELLY VS. WASHBIRN. 493 
 
 An examination of all the cases cited in Rogers, Douglas, and other 
 ^English authorities where a member of Parliament has been unseated 
 for bribery, treating. &c.. by himself or his agents, where the votes thus 
 affected were less in number than his majority, will show that in every 
 case the decision rests upon special English statutes, with which we 
 have nothing to do. 
 
 Bribery in procuring an office is made a disqualification for holding 
 the oftice by the constitutions of the States of Massachusetts, Xew 
 Hampshire. Vermont, Ehode Island. Maryland. Missouri, Arkansas, 
 Texas. California, and Florida. 
 
 Bribed votes should undoubtedly be rejected, but unless they are 
 numerous enough to change the majority, the candidate receiving the 
 majority should be declared elected. (See 3 Arch. Cr. Pro., 470 1 -570 10 .) 
 
 It is said that in some of the States in this country where bribery in 
 elections is made by constitutional provision a disqualification to hold, 
 an office, and bribery is proved against the candidate receiving the 
 highest vote, the election should be declared void, even though the 
 bribery did not affect the result. (Cush.. sections 190,191.) 
 
 In some of the States it is held that prior conviction of the disqualify- 
 ing crime is necessary before such a rule can be applied by a legislative 
 assembly. It is not admitted that either the organic act of a State or 
 its legislature can prescribe disqualifications of any kind for a member 
 of the House of Representatives of the United States, but it may be 
 proper to state here that the constitution of Minnesota (section 15. arti- 
 cle 4} gives full power to the legislature of that State to render ineligible 
 to hold office any person guilty of crime, and that legislature has not 
 made bribery of voters a disqualification to hold office, but it has only 
 made it a misdemeanor, punishable by fine and imprisonment in the 
 county jail. (Stat. Minn. 1878. page f>. section 66.) 
 
 It may be observed that under no provision of the Constitution of the 
 United States does crime committed by a member in his election dis- 
 qualify him from taking and holding his seat. 
 
 The reason for the English rule wholly fails in the case of a member 
 of the House of Representatives. 
 
 Justice Johnson, of the Supreme Court of the United States, in an 
 early ease, in speaking of distinctions between American and English 
 legislative bodies, said : 
 
 American legislative bodies have never possessed or pretended to the omnipotence 
 which constitutes the leading feature in the legislative assembly of Great Britain, 
 and which may have led occasionally to the exercise of caprice, under the specious 
 appearance of merited resentment. (6 Wheatou, 231.) 
 
 ]So case has been found in this country where any such rule (in the 
 absence of an express constitutional provision) as is claimed to exist in 
 England has obtained in the House of Representatives of the United 
 States, or in any of the States of this Union, but there are a number of 
 cases, as already appears, where the rule is entirely disregarded. 
 
 McCrary in his excellent work on " American Law of Elections" does 
 not refer to or recognize any such rule, but all through his work it is 
 taken for granted that no such rule has ever had any application to a 
 contest in the House of Representatives of the United State>. 
 
 It is true the Constitution of the United States makes " each house 
 the judge of the elections, returns, and qualifications of its oicn members." 
 (Article I, section 5). 
 
 In judging of the election of a member, the House deals alone with the 
 question of the number of votes the member received, and if it appears 
 that he has a majority of the votes cast, excluding all illegal and void
 
 494 DIGEST OF ELECTION CASES. 
 
 votes cast, and a full and fair election has been held by which such ma- 
 jority has been obtained, or at least the majority would not have been 
 affected by any uufairness or improper practices in the election, then 
 the conclusion is irresistible that such member has been duly elected, 
 
 In judging of the returns of its members, the House deals with the 
 formal returns, at least preliminarily, on which a member is expected to 
 be admitted to a seat in the first instance. 
 
 In judging of the qualifications of a member, neither the question of 
 election nor returns is involved. The qualifications of a member of the 
 House of Representatives are fixed by the Constitution of the United 
 States, as follows : 
 
 No person shall be a Representative who shall not have attained the age of twenty- 
 five years, and been seven years a citizen of the United States, and who shall not, 
 when elected, be an inhabitant of that State in which he shall be chosen. (Article I, 
 section 2). 
 
 Of these prescribed qualifications the House is the exclusive and final 
 judge. 
 
 If before a person has been sworn in and taken his seat the House 
 were to decide that he did not possess the constitutional qualifications, 
 he could not be admitted to a seat. Even if sworn in as a member it 
 would probably not require, an expulsion to vacate his seat if the House 
 were to adjudge him without requisite constitutional qualifications en- 
 titled to hold a seat. 
 
 The power to expel a member is given to meet cases of members ad- 
 mitted to seats who would, under the Constitution, be qualified to sit r 
 but for other than constitutional causes would be disqualified or un- 
 worthy to be a member of the legislative body in the judgment of two- 
 thirds of the House. (Article I, section 5.) 
 
 The Committee on Elections, under the rules of the House, have only 
 jurisdiction to consider such petitions, &c., touching elections and re- 
 turns as shall come into question. Such has been the rule of the House 
 since November 13, 1789. 
 
 We here quote the rule adopted at that date with a slight amendment 
 of date of November 13, 1794: 
 
 It shall be the duty of the Committee on Elections to examine and report upon the 
 certificates of election, or other credentials, of the members returned to serve in this 
 House, and to take into their consideration all snch petitions and other matters touch- 
 ing elections and returns as shall or may be presented or come into question and be re- 
 ferred to them by the House. (Con. Manual and Digest (Smith), Rule 75.) 
 
 Under the above rule this case was referred to the Committee on Elec- 
 tions. 
 
 It will be observed that under it the committee is given no power to 
 consider questions of disqualifications of a member to hold his seat where 
 it appears that he has been duly elected. 
 
 The new rule' of the House, adopted March 2, 1880, relating to the 
 powers of the Committee on Elections, is as follows: 
 
 All proposed legislation shall be referred to the committees named in the preceding 
 rule, viz: Subjects relating (1) to the election of members: to the Committee on Elec- 
 tions. (Rule XI.) 
 
 By neither the old nor the new rules, it will be seen, has the Committee 
 on Elections any power except such as relates to the election of members. 
 
 The conclusion is irresistible that the committee has no right to re- 
 port against a sitting member who, as in this case, two-thirds of the 
 committee find in effect was dtilv elected.
 
 DONNELLY VS. WA8HBURN. 495 
 
 NUMBERED BALLOTS. 
 
 It is claimed that in seven precincrs of the city of Minneapolis the 
 judges of election placed a number on the back of each ballot to cor- 
 respond with the number of the voter on the poll-list, and that the 
 purpose of doing this was to work a fraud upon the people, and to in- 
 timidate the voter so as to require him to cast his vote for the sitting 
 member. The ballots were numbered in these seven precincts in exact 
 accordance with the provision of the law of the State of Minnesota,, 
 which had been passed about eight months before the time the election 
 was held in the fall of 1878. (See Sessions Laws of Minnesota, 1878, 
 pages 133 and 134.) An inspection of this law will show that it was 
 carefully drawn, and in all respects provided for a secrecy of the ballots 
 by the judges and clerks. A penalty of a fine and imprisonment is 
 imposed upon any judge or clerk of election for disclosing or allowing 
 to be disclosed how any voter voted at an election. (See Sessions 
 Laws, page 137.) 
 
 Prior to the election in November, 1878, a judge of the district court 
 of the State of Minnesota had declared this law requiring ballots to be 
 numbered by the officers holding the election to be unconstitutional, on 
 the general ground that it was a violation of the secrecy of the ballot 
 (Record, page 74). Since the election of 1878, and since this case was ar- 
 gued before the subcommittee, a decision has been rendered by the 
 supreme court of the State of Minnesota, holding this law to be uncon- 
 Htitutional. Your committee need not, for the purposes of this case, turn 
 aside to consider whether this law is unconstitutional or not, and it may 
 be regarded, so far as the election of State, county, and municipal offi- 
 cers in the State of Minnesota are concerned, as unconstitutional. But 
 we hold, first, that in so far as this law related to the judges of the elec- 
 tion in the election of a member of the House of Representatives of the 
 United States, it was constitutional; and. second, whether it is to be 
 regarded a> constitutional or not constitutional, the numbering of the 
 ballots affords no reason, in the light of the law and the precedents, for 
 rejecting the vote as cast. The legislature of a State does not acquire 
 its right or power to make a law regulating the manner of holding elec- 
 tions for Representatives in Congress from the constitution of the State, 
 but this right and power is derived exclusively from the Constitution of 
 the United States. Section 4. Article I, of the Constitution of the United 
 States is as follows : 
 
 The Times, places, and manner of holding elections for Senators and Representa- 
 tives shall be prescribed in each State by the legislature thereof ; but the Congress- 
 may at any time by law make or alter such regulations, except as to the places of 
 choosing Senators. 
 
 This provision of the Constitution of the United States has been under 
 consideration in a very recent case in the Supreme Court of the United 
 States (ex-parte Seibold et aL). 
 
 An examination of the opinions delivered by Judges Bradley and 
 Field, the former for the majority of the court and the latter for the two 
 dissenting judges, will show that on the question of the derivation of the 
 power of the legislature to make laws regulating the manner of holding 
 elections for members of Congress, all the judges agree that the legisla- 
 ture obtains its power from, and solely from, the provision of the Con- 
 Ktimtioii just quoted. The State legislature is not responsible to the 
 State, nor controlled by the State constitution, in its action in regard to 
 the manner of holding Federal elections. In case of a conflict between 
 the act of a legislature and the constitution of the State in matters
 
 496 DIGEST OF ELECTION CASES. 
 
 purely of a Federal character, the act of the legislature will prevail, 
 provided it is not in conflict with the Constitution of the United States. 
 This point was distinctly decided in the contested-election case of Bald- 
 win vs. Trowbridge (Contested Election Cases in Congress, 1865 to 1871, 
 page 46). 
 
 The syllabus of that case reads as follows : 
 
 Where there is a conflict of authority between the constitution ami legislature of a 
 State in regard to fixing the place of elections, the power of the legislature is para- 
 mount. 
 
 The case arose over the constitutionality of an act of the legislature 
 of the State of Michigan, passed February 5, 1864, which undertook to 
 give to Michigan soldiers, while in the service of the United States 
 during the late war, the right to vote at all elections authorized by law, 
 whether at the time of voting they were within the limits of the State of 
 Michigan or not. The constitution of the State of Michigan in express 
 terms required the electors to reside in the State three months and in the 
 township or ward in which they offered to vote ten days next preceding 
 such election. The act of the legislature was declared by the Michigan 
 courts -unconstitutional, and yet Mr. Trowbridge. the sitting member in 
 that case, was allowed to retain his seat, although he was elected by the 
 vote of soldiers who were absent from the State, and who voted in ac- 
 cordance with the act named. The committee in that case reported, and 
 the House sustained its report, that the law was constitutional in so 
 far as it provided qualifications of electors who voted for members of 
 the House of Representatives of the United States. 
 
 Little need be said in view of the decisions of the court and of the 
 House of Representatives to enforce this view. The power of the legis- 
 lature, being derived directly from the Constitution of the United States, 
 to regulate the manner of holding elections for members of the House 
 of Representatives can in no sense be controlled or limited by the con- 
 stitution of the State. And there is no limit placed on the power of the 
 legislature by the Constitution of the United States as to the manner 
 of holding elections for Representatives. (See McCrary 's Law of Elec- 
 tions, sections 109, 110, 111, 112). 
 
 There is an unbroken line of decisions, however, which are to the 
 effect that notwithstanding ballots are numbered in the absence of or 
 in violation of law, they are still to be counted. McCrary. in his Law 
 of Elections (section 312), lays down the rule thus : 
 
 Where the statute makes it a misdemeanor for the officer of election to place any 
 number or mark on the ballot of the voter, but does not declare that ballots so marked 
 or numbered by such officer shall be rejected, the true rule is to receive and count 
 them. To reject such ballots would be to establish a rule under which an officer of 
 .an election could destroy the effect of a ballot cast iu good faith by a legal voter by 
 placing a number or mark upon it. 
 
 The direct question came up in the Forty-second Congress in the con- 
 test of Giddings vs. Clark (House Contested Election Cases, 1871 to 
 1876, page 91), from the third district of Texas. It appeared in that 
 ase that the tickets were marked with numbers, contrary to the statute 
 of the State of Texas, which statute made it a misdemeanor for any 
 judge of election to place any number or mark upon the vote of any 
 voter, but which statute did not declare that the vote of a legally quali- 
 fied voter should be rejected because his ballot was marked by the 
 judges. The committee of the House in that rust. 1 was unanimous in 
 holding that ballots thus numbered, although in violation of the direct 
 terms of the statute of the State of Texas, should still be counted. The 
 report was drawn by the Hon. George W. McCrary, the author of the
 
 DONNELLY V.. WASHBURN. 497 
 
 valuable work on American Law of Elections, and it was concurred in 
 by all the members, both Republican and Democratic. On that report 
 
 Mr. Giddings, the contestant, a Democrat, was given his seat, and the 
 Kepublican was unseated. We quote from that report : 
 
 We would not be inclined to put a construction upon this .statute which would 
 enable an officer of election to destroy the effect of a ballot cast in good faith of a legal 
 voter by placing a number or mark on it. A ballot may thus be marked or numbered 
 without the knowledge or consent of the voter, and it would be manifestly unjust 
 that he should be in t his wa\ deprived of his vote. We think it plain that, inasmuch 
 as tht- .statute tixes the penalty for marking a ballot, and does not expressly declare, 
 that a marked ballot should be thrown out, the board erred in rejecting the vote 
 of this county upon this ground. 
 
 The same question is directly made in the case of McKeuzie -vs. Brax- 
 ton, Forty-second Congress. Contested Election Cases, 1871to 1876, pages 
 11) to 25. The report of the committee in this case was unanimous, and 
 in favor of counting the numbered ballots. This was a Virginia case. 
 There had been a statute in Virginia requiring ballots to be numbered, 
 but a short time prior to the election which gave rise to the contest 
 this provision was repealed. But, notwithstanding the repeal, certain 
 ballots were numbered. The majority of the Election Committee of this 
 House in th Forty-fifth Congress decided to count ballots numbered in 
 violation of law. (Finley vs. Bisbee, Report 95, page 28, by Mr. Cobb.) 
 
 Many States in the Union require ballots to be numbered some by 
 constitutional provision. Pennsylvania, Kentucky, and Georgia are 
 examples where ballots are required to be numbered by the organic 
 la\v of the State, and it seems to be for the purpose of enabling, in case 
 of a contest, the true result to be ascertained, and also for the purpose 
 for preventing frauds and ballot-box stuffing. Many persons believe 
 that the greater the publicity of the vote the more clear and honest will 
 be the expression of the will of the people. In some States voting viva 
 voce has been successfully tried. The people of Virginia, from before 
 the time of the Declaration of Independence (June 29, 1776) and during 
 our constitutional government up to the rebellion, voted uniformly 
 viva vocc. George Washington, John Randolph of Roanoke, and all of 
 the distinguished men of Virginia were ardent advocates of this mode 
 of expressing the will of the people. The people of the State of Ken- 
 tucky now vote at all elections viva voce, save for members of Congress, 
 which is regulated by United States statutes, and it is understood to be 
 universally approved by the people of that State, and this after it has 
 been tried for many years. Ballots are required to be numbered in the 
 State of Illinois. 
 
 Members of the committee claim that the ballots were numbered in the 
 precincts named as a mode of intimidating voters. This rises almost to 
 the dignity of a slander on a large class of workingmen and others, who 
 are usually the most independent of voters. It charges them with moral 
 cowardice. The men who desire to resort to treachery in pretending, 
 for bribery or other cause, to support one candidate, and then vote for 
 another may, under sonre circumstances be inconvenienced by the 
 numbering of the ballots. How many men are there in any community 
 who want to deny their own manhood by saying they do not wish any 
 person to know for whom or for what principle they have voted? Such- 
 persons can have no moral or other real influence in society, and they 
 cannot commmand their own or their neighbors' respect. The fact is, 
 there is rarely to be found in any community a single man who has not 
 for weeks or months openly avowed his purpose to support certain can- 
 didates representing the leading issues of the campaign. We are not 
 H. Mis. 58 32
 
 498 DIGEST OF ELECTION CASES. 
 
 however, disposed to condemn the secrecy of the ballot. It may be in 
 certain cases a protection to the electors. The facts in this case afford, 
 no pretense for rejecting the vote in the precincts where the ballots 
 were numbered. 
 
 There is not an iota of testimony in the whole record which it can be 
 pretended tends to show that one of the electors in such precincts was 
 influenced by reason of the ballots being numbered. The industry of 
 contestant would have discovered some such evidence if the factexisud. 
 The testimony does show that one eccentric or cowardly man, a lawyer 
 (Robinson), refused at the polls to vote because the judges proposed to 
 number the ballot (pages 135, 137-138). This man disclosed the fact that 
 he was a sort of Democrat, and that he did not want any person to 
 know for whom he voted. The conclusion from his testimony is irre- 
 sistible that he wanted to maintain his standing as a Democrat and at 
 the same time vote for Mr. TVashburu, and that by this means Mr. 
 Washburn lost the vote of one cowardly lawyer. Here are two excerpts 
 from his testimony, and further comment is unnecessary: 
 
 Q. Are you a Republican or Democrat? A. I have always acted with the Demo- 
 crats, except that I do not vote early and often. I aui always satisfied with one vote. 
 
 Q. Were you a partisan of Mr. Ignatius Donnelly ? A. I decline to answer, only to 
 state that I am partisan to no one. I desire to vote independently, and that was my 
 objection to numbering my ballot. 
 
 No other man save Mr. Robinson even asked the judges of election to 
 refrain from numbering his ballot. The testimony discloses that one man 
 only remained from the polls for the alleged reason that ballots were being 
 numbered, and it would seem that this man, desiring to give some reason 
 why he did not vote, offered this by way of an excuse as an after- thought. 
 It does not appear that he complained on the day of election of the num- 
 bering of the ballots. Save these two persons there could not be found 
 among the about twenty-eight hundred voters who voted in the seven 
 precincts where ballots were numbered any person who would even pro- 
 fess that numbering the ballots had influenced him not to vote or as to 
 how he voted. This is as it would be expected, when we recollect the 
 true and real character of an American citizen, especially such as resides 
 in the progressive State of Minnesota and other States of the great 
 West. It must be observed that the contestant does not ask to be cred- 
 ited with votes not cast for him by reason of the ballots being numbered, 
 but asks that all the votes cast in the seven precincts where ballots were 
 numbered should be rejected, and the voters of these seven precincts to- 
 tally disfranchised. In the effort of contestant to prove that persons 
 had been influenced on account of the numbering of the. ballots, he 
 proved that most of the witnesses who voted did not know whether the 
 ballots had or had not been numbered, and it is to be presumed that 
 few, if any. of the voters, save the officers of election, in fact knew that 
 their ballots were being numbered. 
 
 Ballots were numbered in the first and second precincts of the second 
 ward; in the first, second, and third precincts of the fourth ward; and 
 in the first and third precincts of the sixth wa*d of Minneapolis, and in 
 no others in the district. 
 
 W. D. Hanagau (page 185), when asked, said he did not know whether 
 the ballots in his precinct were numbered or not, although he was a 
 swift witness for the contestant. He was at another precinct besides 
 his own for several hours on the day of the election, during which time 
 he did not find out whether the ballots there were being numbered or 
 not. 
 
 Here are a couple of questions put to this witness, and his answers :
 
 DONNELLY VS. \VASHBURX. 4t)9 
 
 C,. Whore 1 were you daring election day .' A. From nine o'clock to about two and 
 a half or three o'clock in the afternoon I was at the first precinct of the fourth ward. 
 Then I went up to the first precinct of the fifth ward and voted, and remained there 
 until the close of the polls. 
 
 Q. Were the ballots cast in the first precinct of the fourth ward numbered? A. I 
 do not know i page 1-7 . 
 
 This is the testimony of one of the contestant's witnesses. William 
 Griuishaw. who lived in the second precinct of the fourth ward, and 
 who was active there on election day, says that he was not positive that 
 the ballots were numbered by the judges (pages 15." and 181). The wit- 
 nes> swears tha<: he is uncertain whether the ballots were numbered in 
 the rirst precinct of the fourth ward. 
 
 The witness Gouier, of the first precinct, sixth ward, who peddled 
 tickets there for candidates, is asked, "Were the ballots numbered in 
 your precinct f" and to this he answers, "I do not know" (page 206). 
 
 There is other testimony of the contestant's witnesses of the same 
 kind. Had there been complaint at all about the numbering' of the 
 ballots there would have been no person about the polls who was ignor- 
 ant about it. But for the officers of the election the fact that ballots 
 were numbered at these precincts could hardly have been proved. We 
 note this to show that what was not at the time known could not now 
 be held to have intimidated the voters. It is claimed that the ballots 
 were numbered as a part of a scheme to intimidate voters. The fact 
 appears to be that all the papers supporting AVashburu published the 
 statement that the ballots would not be numbered as the law requires, 
 and it was at the instance, in some cases, of Democrats that they were 
 numbered < pages 130. 170 1. The ballots were not. as appears by the tes- 
 timony, numbered with any view of intimidating voters, nor were they 
 numbered, as claimed, in violation of a professed agreement by the 
 judges of election in Minneapolis. It is true there was a meeting to 
 consult about the matter, at which the majority of the election judges 
 present expressed the opinion that ballots should not or need not be 
 numbered. The following is the testimony of B. F. Nelson as to this 
 meeting (page 174): 
 
 Q. Did you attend the meeting of the judges of election of this city held shortly 
 before said election to decide whether or not the ballots should be numbered at the 
 election .' If so. state when the meeting was held and what occurred. A. I did 
 attend the meeting : it was held in the council room, in the city hall building. 
 Opinions were given that it might be proper and lawful to number the ballots. 
 These opinions were given by attorneys called in for that purpose; by other judges, 
 that it was necessary to number them. Some judges decided not to have them num- 
 bered at their precincts. The city attorney. William Lochren, informed us one of our 
 judges had decided that it was unconstitutional to number the ballots. We did not 
 in that meeting whether to number the ballots or not. There was a motion 
 or resolution offered, hut before the vote was taken it was understood that that mo- 
 tion was not binding on the judges. It was simply taken to get the sense of the meet- 
 ing. I don't remember how the vote stood. It is my impression that the vote stood 
 in favor of numbering the bailors. 
 
 Another one of the judges testifies as follows (page 143): 
 
 Q. Did you attend a meeting of the judges of election of this city held shortly be- 
 fore said election to decide whether or not the ballots should be numbered at the 
 election.' If so. state what occurred. A. I was present at such a meeting at the 
 council chaiiiber in the city hall. There was a discussion, pro and con, as to whether 
 the ballots should be numbered or not numbered. Some thought that the law in 
 reference to numbering was unconstitutional, but that the supreme court of the State 
 had not declared the law as such : and other of the judges thought, as long as it was 
 not declared unconstitutional by the supreme court of the State, that the law ought 
 to be obeyed and followed: and after somewhat discussion of this kind there was an 
 informal vote taken by the judges: there were about thirteen or fifteen votes in the 
 affirmative and eight or ten in the negative. I mean there was thirteen or fifteen 
 in favor of not numbering the ballots and eight or ten in favor of numbering,
 
 500 DIGEST OF ELECTION CASES. 
 
 and I voted with those who were in favor of numbering ballots, because the law pre- 
 scribed it. 
 
 Q. Were the ballots deposited in the ballot-bos in your precinct at said general 
 election held November 5, 1878, identified by placing on the back of the same a num- 
 ber corresponding with the number set opposite th name of the voter on the poll- 
 lists? A. Well, the judge of election received each ballot in presence of the other 
 judges and the clerks, and called out the name of the voter, which was taken down 
 by the clerk and numbered, and the same number was written on the back of the b.al- 
 lots ; that is the way it occurred: and after it was numbered it was. in the presence 
 , of all the judges and clerks, deposited in the ballot-box. There were no exceptions to 
 this rule. 
 
 John Hinton, a judge of the election, testified on the same subject 
 (page 177) : 
 
 Q. Did you attend a meeting of the judges of election of this city, held shortly 
 before said election, to decide whether or not the ballots should be numbered at the 
 election ? If so, state when the meeting was held and what occurred. A. I attended 
 the meeting; the question was discussed. An opinion was given by Mr. Lochreu, the 
 city attorney; his opinion was that it was unconstitutional to number the votes, and 
 a vote was taken by the judges present; it resulted in a decision to discontinue the 
 practice of numbering the votes. After that vote was taken there was a dissenting 
 voice. Mr. Daniel Bassett : and the general understanding was that the judges should 
 -use their own judgment as to numbering of the ballots in their several precincts or 
 wards. The meeting "was held in the council chamber: it was in the afternoon before 
 election, if my memory serves me right. 
 
 J. H. Conkey, also one of the judges, in speaking of the meeting of the 
 election judges to consult on the subject of numbering the ballots, says 
 (page 198) : 
 
 Q. Did you attend a meeting of the judges of election of this city, held shortly 
 before said election, to decide whether or not the ballots should be numbered ? If so, 
 state where the meeting was held, and what occurred. A. It was held at the council 
 chamber in the city hall ; I attended this meeting ; the matter was talked over there, 
 and it was left to the option of the judges after counseling the city attorney. The city 
 attorney gave the opinion that either way would not invalidate the election : I think 
 he said that there had been a decision rendered in Ramsey County that it was uncon- 
 stitutional to number ballots. I don't remember whether a vote was taken or not. 
 
 The last witness discloses the fact that legal counsel gave the opinion 
 that to number the ballots would not invalidate them, and on this opin- 
 ion some of the judges acted rather than perform their duty in express 
 violation of the terms of the recent law of the State of Minnesota. 
 
 The testimony of Daniel Bassett, a Democrat, and one of the judges, 
 should also be read (page 134). 
 
 But for the importance attached to the meeting of election judges by 
 the contestant and certain members of the committee no attention would 
 be given to it here. The meeting was an informal one and solely for the 
 purpose of consultation, and was not intended and could not have been 
 intended to bind any of the judges when they came to perform their 
 official duties. The truth is that the judges of election had to decide be- 
 tween following a plain requirement of the law or disregarding it. Some 
 of them, under the advice they had, concluded to obey the law, notwith- 
 standing the decision of the inferior court that it was unconstitutional. 
 
 It is further claimed that the numbering of the ballots in seven pre- 
 cincts of the city of Minneapolis was done in pursuance of a purpose to 
 intimidate the workiugmen, who are said to have lived chiefly in these 
 precincts. There is no truth in the statement that the workingmeu re- 
 sided in these precincts. The record furnishes no such evidence. It is 
 hardly proper to refer to the fact that the contestant in his desperation 
 does make such a statement in his brief. But it. the argument before 
 the sub-committee this was emphatically denied, and it is still denied 
 on the authority of persons residing in that city, including the mayor 
 and others, who have forwarded affidavits to show that such unsupported
 
 DONNELLY VS. WASHBURN. 501 
 
 statements were wholly untrue. One witness (Grimshaw), referred to 
 by members of the committee, dot's say that a large number of working- 
 ineii resided in the second precinct of the fourth ward, a precinct in 
 which the ballots were numbered: but this witness utterly disproves 
 the charge that these workinguien were intimidated. On the contrary, 
 he makes it quite certain that in this precinct and ward the working- 
 men did not want to vote for Donnelly. The vote stood in that ward, 
 according : to his statement, 57 for Donnelly and 357 for Washburn. Here 
 tutemeiit of this witness on this subject in full (page 181): 
 
 A. I believe that I have before stated that I was not acquainted in my entire ward ; 
 neither am 1 : but will say that in the second precinct, fonr.th ward, the one in which 
 I live, Then- was 414 voles polled at the last election, of which Ignatius Donnelly re- 
 ceived 57. I believe I am acquainted with all of these nieii will not say all and 
 know of none that is not a workiugman. I am rather well acquainted in the city, 
 having lived here nineteen years, and believe that a large majority of workiugmeu 
 voted for W. D. Washburn. 
 
 It is true that there was great activity in the city of Minneapolis im- 
 mediately prior to and on election day. There was undoubtedly a 
 rivalry between the cities of Minneapolis and Saint Paul which led to 
 an increased vote doubtless for Donnelly in the city of Saint Paul and 
 a largely increased vote in the city of Minneapolis for Mr. Washburn. 
 Minneapolis was Mr. Washburn's home; he had done much to build it 
 up, to advance its interest, and to provide work for its inhabitants. He 
 was a public-spirited man, and had a just pride in his own city. Some 
 of the contestant's witnesses declared that the election in the Congres- 
 sional fight of 1878 practically resulted in one issue, and that a contest 
 between the rival cities of Saint Paul and Minneapolis. The following 
 is a question and answer which will throw light on this question (Ste- 
 vens, page 108) : 
 
 Q. Was not the Congressional question at the last election considered of greater 
 importance generally than any other oftice, and did it not cause more feeling among 
 the voters ? A. Except upon a comparatively small number of friends of candidates 
 for local officers, the Congressional right, or so-called contest, for city supremacy, was 
 practically the only issue: political consideration apparently sank out of sight, the 
 rallying cry being " Vote for Wasltburn and Minneapolis. Down icith Saint Paul." The 
 battle noon became a rout, and ultimately a panic. 
 
 The testimony of McCarthy is to the same effect (page 24). 
 
 It is proper to observe that the nomination of Donnelly was distaste- 
 ful to Democrats, especially in Minneapolis (page 110). 
 
 The election in Minneapolis is clearly proved to have been an orderly 
 one (page 109). 
 
 Men were not discharged, as has been claimed, by their employers 
 because they voted for Washburn (118). 
 
 In the conduct of the election on election day Democrats were very 
 lukewarm in Donnelly's interest (page 45). Some of the witnesses say 
 that Donnelly's friends were afflicted with "APATHY" (pages 140-41.*) 
 
 The only testimony which tends to prove that workiugmen were 
 afraid to vote for Mr. Donnelly on account of the fear that they would 
 lose their jobs is purely hearsay, and entitled to no consideration what- 
 ever. Some of the witnesses testify that the workingmeu did not vote 
 for Mr. Washburn, but that his majority came from the citizens of the 
 city of Minneapolis (page 113). 
 
 Much has been said about Mr. Donnelly's last meeting in the city of 
 Minneapolis. It is claimed that his meeting was interrupted, and in 
 that way he was deprived of his proper influence upon the voters. It 
 appears that in the meeting held by Donnelly in Minneapolis, on No- 
 vember 2, 1878. he indulged in a personal tirade against Colonel King,
 
 502 DIGEST OF ELECTION CASES. 
 
 a former member of Congress, and attacked his character and reputa- 
 tion. This Mr. King resented, and advised Mr. Donnelly that unless he 
 desisted from such allusions to him he would expose him in a way that 
 he (Donnelly) would not want. Donnelly held his meeting, and no 
 further interruption took place (page 110). 
 
 The witness McGurk says that in this meeting Donnelly succeeded in 
 converting quite a number, and that the attempt to break up the meet- 
 ing failed. He further testifies on this point (page 114) : 
 
 Q. Do you not think that this attempt was an advantage to Mr. Donnelly instead 
 of a detriment ? A. I think it was, judging from the indignation expressed by the 
 people at Mr. King and the party. Mr. King was supposed to be the representative 
 of Washburn. 
 
 Q. Then, in your opinion, the election, so far as it was affected at all, was so affected 
 in favor of Mr. Donnelly by the scenes at this meeting ? A. Yes. 
 
 All of the alleged testimony in the record on the subject of intimida- 
 tion, if, indeed, any of it could be called competent testimony, is so 
 utterly shadowy that it does not deserve a critical review here. 
 
 We should, in the consideration of the charge of intimidation, keep 
 in mind the salutary rule of law, repeatedly affirmed by the House of 
 Representatives, that where it is alleged that a large number of persons 
 have been deterred from voting by violence or intimidation the testi- 
 mony of those persons should be produced, or at least some of them. 
 The opinions and impressions of others are not sufficient (McCrary's 
 Election Laws, 430-441 ; Morris vs. Handley, 42d Congress). 
 
 The rule of law universally recognized where elections are held by 
 the people is, that those who may have voted, and yet did not when 
 they could have done so, are bound by the result (McCrary's Election 
 Laws, sections 445-448; 10 Minn., 107). 
 
 The attempt on the part of members of the committee to work out 
 some sort of demonstration from a comparison of the votes cast on dif- 
 ferent years in the city of Minneapolis is exceedingly far-fetched, and 
 hardly deserves notice. To show the folly of attempting to demonstrate 
 anything from a comparison of votes on different years in the city of 
 Minneapolis we insert a statement showing the vote on different years 
 for different candidates, Republican and Democratic, in both of the 
 cities of Minneapolis and Saint Paul. It will be observed from thin 
 statement that with a very light vote in 1879 the Republican candidate 
 for governor received almost as great a majority as Mr. Washburn in 
 the city of Minneapolis, and the Democratic candidate for governor re- 
 ceived only about one-third of Donnelly's vote in that city in 1878. It 
 will also be observed that the vote in the city of Saint Paul fluctuated 
 in the years mentioned in the statement quite as much as in the city of 
 Minneapolis. The following is the statement:
 
 DONNELLY VS. WASHBURN. 
 
 503 
 
 Statement of th- in the title* of Minneapolis and Saint Paul for certain can- 
 
 didafm. and in the years below specified. 
 
 Pillsliury. governor, Republican. 
 Hue], governor, Democrat 
 
 1875. 
 
 1876. 
 
 Hayes. President, Republican 
 Tililen. President, Democrat . 
 Stewart, Congress. Republican 
 McN'air. Con_ -rat.. 
 
 (Stewart, a resilient of Saint Paul, and MeXair. resident of Minneapolis.) 
 
 Legislative vote in Minneapolis, same year. wa-% Republican, 4,214; 
 
 Demoei.it. 'J. !)_'<! : in Saint Paul, Republican. '.MIS : Democrat, 2,979. 
 1877. 
 
 Pillslmry. governor, Republican 
 
 Banning, governor, Democrat 
 
 Pillsbury was a resident of Minneapolis, and Banning of Saint Paul. 
 
 A vei v light vote in both cities. 
 
 Washburu C impress. Republican 
 
 Donnelly. Congress, Democrat 
 
 Same year Democratic majority for supreme judge in Saint Paul was only . . 
 
 On Mate ticket (auditor). 1 
 
 County ticket (sheriff) 
 
 Same year Republican majority in Minneapolis on State ticket was 
 
 Supreme judge I 
 
 County ticket . 
 
 1879. 
 
 Pillsbury. governor, Republican 
 
 Rii-e, governor, Democrat 
 
 Same year Democratic, majority in Saint Paul on county ticket was 
 
 Same year Republican majority in Minneapolis on county ticket was 
 
 Minneapolis. 
 
 3,652 
 1,041 
 
 4,149 
 3,229 
 3,412 
 3,862 
 
 3,245 
 1,569 
 
 5,033 
 1,565 
 
 2, 161 
 2,722 
 2,341 
 
 2,814 
 504 
 
 1,187 
 
 Saint Paul. 
 
 2, 459 
 3,116 
 
 2,566 
 3,553 
 2,658 
 3,101 
 
 2,867 
 3.078 
 
 1,378 
 
 3,770 
 
 897 
 
 931 
 
 268 
 
 1,007 
 
 2,922 
 
 553 
 
 The following statement shows the vote for governor in 1879 in the 
 election in the counties composing the third Congressional district of 
 Minnesota. It may be of value by way of comparison. 
 
 Third Congressional district, vote of 1879 in said district. 
 
 County. 
 
 Kice. 
 
 Pillsbnry. 
 
 County. 
 
 I 
 
 Rice. 
 
 Pillsbury. 
 
 Aitkin County 
 
 1 
 
 14 
 
 
 492 
 
 328 
 
 -A. link a County 
 
 'JW5 
 
 371 
 
 Otter Tail County 
 
 653 
 
 1 517 
 
 Becker Count] 
 
 133 
 
 653 
 
 
 105 
 
 61 
 
 Ben tun Count v 
 
 
 191 
 
 
 338 
 
 730 
 
 Big Stone County 
 
 41 
 
 128 
 
 
 56 
 
 621 
 
 Carlton Ctun.tv 
 
 64 
 
 51 
 
 
 3 318 
 
 1 098 
 
 Chica"o Count v 
 
 ju:; 
 
 636 
 
 
 177 
 
 213 
 
 
 85 
 
 340 
 
 
 166 
 
 319 
 
 Crow Wlni County 
 
 196 
 
 -95 
 
 
 2 270 
 
 913 
 
 Douglas County 
 
 133 
 
 643 
 
 
 403 
 
 374 
 
 Grant County. 
 
 44 
 
 389 
 
 
 350 
 
 573 
 
 Hennepin County. 
 
 998 
 
 
 
 3 
 
 18 
 
 Isanti ( "otint v. ... 
 
 
 
 
 57 
 
 321 
 
 Kanah'-r ( 'minty . . . 
 
 
 79 
 
 
 ' 47" 
 
 1 183 
 
 Kitt"on Coiintv 
 
 96 
 
 138 
 
 
 99 
 
 198 
 
 Lac-qui-parle County . . . 
 
 17 
 
 591 
 
 
 1 326 
 
 1,347 
 
 Liiike County. 
 
 11 
 
 4 
 
 
 87 
 
 722 
 
 
 363 
 
 870 
 
 
 
 
 Mille Lacs County 
 
 56 
 
 106 
 
 Total 
 
 14 4''5 
 
 20,106 
 
 
 
 
 i 
 
 
 
 SUPPLEMENTAL RETURNS. 
 
 Through an error of the secretary of the State of Minnesota, in not 
 furnishing the proper blanks to the election officers, there were a num- 
 ber of instances where the votes polled for candidates for Congress were 
 not returned and counted by the county canvassing boards (page 320). 
 The omission to make full returns occurred in Minneapolis, and in
 
 504 DIGEST OF ELECTION CASES. 
 
 Stearns, Morrison, and Douglas Counties. The coiitestee does not dis- 
 pute the right of the contestant to count the votes cast in the counties 
 of Stearns and Morrison, in each of which counties the contestant re- 
 ceived a majority. Nor do we understand that any serious objection 
 can be made to counting the vote in Leaf Valley precinct, in Douglas 
 County (page 270) where the contestant claims to have received all tlie 
 votes. 
 
 Supplemental returns were made on The 12th day of November, 1878, 
 by the election officers of the precincts in the city of Minneapolis, where 
 they had omitted to make the returns for member of Congress imme- 
 diately after the election. These precincts were first precinct, first 
 ward ; second precinct, second ward ; and third precinct, fourth ward. 
 The majority for Washburu in these precincts was 714 (pages 348,34!).} 
 We see no valid objection to these supplemental returns. They were 
 made by the proper officers and within the time required by law to can- 
 vass and make returns. The supplemental returns from the three pre- 
 cincts of Minneapolis were duly canvassed by the county canvassing 
 board (pages 348-351) ; but it is hardly necessary to waste time in con- 
 sidering the validity of these supplemental returns. They were put in 
 evidence by the contestant (pages 55-63). The testimony clearly and 
 unmistakably, independent of the supplemental returns, shows the vote 
 as cast for member of Congress in these precincts. It must be observed 
 that all the witnesses who testified on the subject of the vote in these 
 precincts agree that the vote for member of Congress was duly can- 
 vassed, though not returned. 
 
 Asa R. Camp, one of the judges of the election of the second precinct 
 of the second ward in the city of Minneapolis, testifies to the vote east 
 for Congress in that ward (page 322). And he testifies also that the 
 supplemental return, as made, is true in all respects (page 323). 
 
 Isaac MeXair, one of the judges ot the election in the same precinct 
 and ward, testifies that the vote was canvassed by the judges of election 
 for member of Congress; and he also gives the vote from recollection 
 and memorandum, as it appears by the supplemental return (paue.- 
 323, 324). 
 
 Thomas F. Andrews, another one of the judges in the same precinct, 
 swears to the same state of facts (pages 325,326). 
 
 John M. Williams, one of the clerks of election of the second precinct 
 of the second ward, testifies to the same facts stated by the judges of 
 election (pages 326, 327). 
 
 Charles Thielen, a judge of the election of the first precinct of the 
 first ward of the city of Minneapolis, testifies to the canvass of the votes 
 in that precinct and to the correctness of the supplemental return ; pages 
 327, 328). 
 
 John Thielen, another one of the judges of election for the first pre- 
 cinct of the first ward, establishes the same fact (pages 328, 32SS). 
 
 Michael Lyons, the other judge of the election in the precinct and 
 ward just named, is equally clear in establishing the fact that the sup- 
 plemental return made for that precinct and ward was correct in giving 
 the vote for member of Congress (pages 329-332). 
 
 Allen Hill, one of the judges of election in the third precinct of the 
 fourth ward, testifies that the vote for member of Congress was can- 
 vassed, and, by reason of a deficiency in the number of blanks furnished, 
 was neglected to be returned. But he testifies to the vote of that 
 precinct, and that it corresponds with the supplemental return (pages 
 332-335).
 
 DONNELLY VS. WASHBURN. 505 
 
 Frederick Paiue, one of the clerks of the election in the third precicnt 
 of the fourth ward, testified to the canvassing of the vote and the ascer- 
 tainment of the result as to member of Congress. He gives the vote in 
 this precinct for AVashburn, 5<;({; Donnelly, 83 ; Stewart, 1; and says 
 that 19 ballots contained no vote for member of Congress. He says, 
 also, that this vote was announced on the night of the election pub- 
 licly, and that it corresponds with the supplemental return made by 
 the officers of the election on the 12th day of November, 1878 (pages 
 335-330). The papers on the following morning after the election, to 
 wit, November G, 1878, offered in evidence in this case, give the vote of 
 this precinct and ward, as well as of others, as appears by the sup- 
 plemental return (page 352). One at least of these papers, the Saint 
 Paul Globe, was published in the interest of Mr. Donnelly (page 338). 
 The witness Paine makes it certain that the vote was announced* as 
 soon as canvassed by the judges of election, and was taken by the 
 reporters from the figures given as the result of the election in this 
 precinct. 
 
 William Cheney, another judge of the election in the third precinct 
 of the fourth ward, also gives the result of the canvass and the election 
 in his precinct ; and he establishes the fact that the supplemental re- 
 turns for his precinct were correct (pages 338-342). 
 
 Daniel Bassett, a Democrat, and one of the judges of election* in the 
 third precinct of the fourth ward, also testifies to the correctness of the 
 vote returned for members of Congress in his precinct, though his 
 memory has to be refreshed by exhibiting to him an original paper con- 
 taining a memorandum of votes, kept at the time the canvass was 
 made in his precinct. The supplemental returns made by the judges 
 of election will also be found in the record as offered by contestee (pages 
 348-350). 
 
 The only person who makes any question about the correctness of the 
 vote in these three precincts is John B. Bottinean, who was a clerk of 
 the election in the third precinct of the fourth ward. He made a pro- 
 test as to his precinct against the supplemental return made by the 
 judges of the election and the other clerk, on the ground, as it appears 
 by his protest, that he himself kept a memorandum (not a tally-sheet), 
 which he is not willing to say was honestly kept, but which he says 
 showed the vote in this precinct to have been, for Washburn 336, and 
 for Donnelly 313 (page 350). 
 
 Some respect might be shown to this protest (although there was no- 
 authority of law for making it) if the man who signed it was himself 
 willing to say that his own memorandum was true. Even in his protest 
 lie is careful not to say that the vote for Donnelly and Washburn stated 
 on his mem >randuin was the correct vote received by them at the elec- 
 tion, but when he is put to the test of swearing to it he utterly fails to 
 say that it does give the correct vote. It must be noted that the sup- 
 plemental return in this case was signed by Daniel Bassett, the Demo- 
 cratic judge of the precinct and a partisan of Mr. Donnelly. When 
 Mr. Bottineau was asked, in his examination by the contestant, to give 
 the mai.nei- in which the count and canvass of the ballots were made, 
 and state any discrepancies in the different tallies made by the judges 
 and clerks during the count and canvass, he had recourse to his own 
 memorandum kept at the time. The memorandum this witness refers- 
 to was not the tally sheet, but a mere memorandum kept by him, on 
 which he put down or pretended to put down figures, at different times 
 as the canvass proceeded, indicating the vote as cast for members of 
 Congress. An inspection of a printed copy of this memorandum (page
 
 506 DIGEST OF ELECTION CASES. 
 
 281) and of the original in evidence will enable any person to see that this 
 witness, either corruptly or honestly, put down the figures in such way 
 as to show that Donnelly received 230 votes more than the tally-sheet 
 shows he received, and which the judges and the other clerk of the elec- 
 tion make clear was the true vote. When put to the test this witness 
 confesses that he made an error in keeping his memorandum (page 277). 
 On the night of the day of election, when the canvass was made, he did 
 not even pretend to claim that there was any discrepancy between the vote 
 as kept by the other officers of election and himself (page 277). He was 
 asked how it was possible for a difference of two hundred in the vote for 
 Donnelly to exist and he not know it at that time, to which he answers: 
 
 It is either a mistake of one of us, and perhaps a mistake of both of us. I ain con- 
 fident we were both mistaken (page 277). 
 
 We give in full the closing part of this witness's testimony, in order 
 to make it appear that no reliance is to be placed upon his pretended 
 protest. It will be observed that he says, ' I cannot say that I believe 
 it (referring to Exhibit C, containing a true showing of Donnelly's vote), 
 nor can I say that I disbelieve it" (page 278). 
 
 Q. From your intimate knowledge of the politics of this county, as before stated, 
 do you believe Exhibit C contains a true showing of Donnelly's vote f A. I cannot 
 answer*it. At the time I sat it down I believed it to be The actual vote of Donnelly. 
 I cannot say that I believe it now, nor can I say that I disbelieve it. 
 
 Q. When'you swore to Exhibit D did you believe that Donnelly had received the 
 number of votes set opposite his name in Exhibit C ? A. I don't know whether I did or 
 not; I expected the two tally-sheets would correspond as they did in relation to other 
 candidates, which they did not. 
 
 Q. Were you not surprised at Donnelly's vote on the night of the election when 
 you made this Exhibit C, showing that he received 313 votes? A. I was surprised 
 that he had received so small a vote, according to the euthusiasm in his favor that [ 
 had seen. 
 
 Q. Did you make the figures "200" and "30" set opposite Donelly's name, in Ex- 
 hibit C, as the votes were read out on election uight f A. The votes were not read 
 out on election night by either of the judges or clerks in making the canvass ; I placed 
 those figures at the same time as the other tally -sheets, as they were announced as 
 found by each, judges and clerk>. 
 
 NOTE. This being the last witness examined on the direct, in Minneapolis, con- 
 testant's counsel desires to say, may the Lord have mercy on the hinderinost in the 
 final outcome. Amen. 
 
 The objection to these supplemental returns is so purely technical 
 that we hardly think it important to give the matter the consideration 
 already given to it in this report. 
 
 Some complaint is made that the contestee did not have the ballots 
 counted in the ballot-boxes and offer proof of the result of "such count 
 in this contest ; and certain members of the committee think this would 
 have been the best and highest evidence of how the vote stood. The 
 contestee has given the vote as cast in these three precincts, as found 
 by the officers who held the election, on an actual count of the ballots 
 made by them as soon as the polls closed. It is hard to conceive how 
 it is possible for a new count of the ballots by unauthorized persons 
 long after the election would constitute higher evidence of the true state 
 of the vote in these precincts than we have already given. It would be 
 exactly the same character of evidence, but given by persons not au- 
 thorized under the law to make the count. 
 
 UNORGANIZED COUNTIES. 
 
 It was stoutly claimed by the contestant that the votes cast in the 
 several counties of the district should be excluded wholly, on the ground 
 that they were in unorganized counties. Some dispute arose between
 
 DONNELLY VS. VVASHBURN. 507 
 
 counsel a.s to what constituted an unorganized county ; and there was 
 some difference between counsel as to what particular counties were 
 organized by express provision of the statutes of the State of Minnesota 
 and what counties were not organized. It is not at all important, in 
 the view we take, whether these counties were organized or not, because 
 it is perfectly clear, under the statutes of .Minnesota, that for the pur- 
 pose of voting for State officers, for members of the legislature, and 
 for members of Congress, voters living in unorganized counties are as 
 much entitled to vote as those who live in organized counties. It is 
 understood that the committee is unanimous in holding that the vote of 
 no county in the district should be rejected on the ground that it was 
 an unorganized county, and we shall give this subject no further con- 
 sideration. 
 
 KSANTI COUNTY. 
 
 The contestant attacks the entire vote of Isanti County. The re- 
 turned vote from that county was 538 for Washburn, 137 for Donnelly, 
 scattering 2. The contestant's objection to counting the vote returned 
 in the county of Isanti is set forth in paragraph 8 of his notice of con- 
 test. It is as follows : 
 
 The votes alleged To have been cast for you at said election in the county of Isauti, 
 iu said district, wen- not cast, or counted for you, or returned, or canvassed, as pro- 
 vided by law. 
 
 The true construction of this part of the notice of the contestant is 
 that he objects, not to the vote because it was not cast, nor because it 
 was not counted, nor because it was not returned, nor because it was 
 not canvassed, but because it was not cast, counted, returned, or can- 
 vassed an prnrulwl In/ lair. There is nothing in the evidence offered by the 
 contestant tending to show that the vote of this county was not cast as 
 returned, was not counted as returned, or was not canvassed as returned, 
 except what appears on pages 'S and f>9 of the record. There it is made 
 to appear that there was a complete abstract of the vote made as cast in 
 the several election districts of the county, and duly certified to by the 
 auditor of the county and district, whose certificate is attested by one 
 A. B.O'Dell, who designates himself judge of probate, and Jonas Burch, 
 who signs himself as justice of the peace. Had O'Dell signed and 
 attested the auditor's certificate as justice of the peace there would 
 have been no objection to counting this vote. This is a mere irregularity, 
 which does not vitiate the returns ; and if it did, the vote is not to be 
 rejected unless the contestant shows it to be illegal. (McCrary's Elec- 
 tion Laws, section 30i>, and cases there cited). 
 
 The statute of Minnesota (Bissel's Revision, vol. 1, p. 172, sec. 28) 
 provides : 
 
 The county auditor and TWO justices of the peace of his county, by him selected, 
 constitute the county canvassing hoard, and on or before the tenth day after the elec- 
 tion said board shall proceed to open and publicly canvass the several returns made 
 to the auditor's oflice. 
 
 Section 40 of the same Revision of the Statutes (page 176) is as fol- 
 lows : 
 
 The abstracts of the votes for members of Congress and electors of President and 
 Vice-President shall be made on one sheet, and, being certified and signed in the same 
 manner as in case of abstracts of votes for county officers, shall he .deposited in the 
 said county auditor's otlice. and a copy thereof, certified as aforesaid, shall lie inclosed, 
 directed to the secretary of ,>tat--. ,i;il indorsed on the outside of the envelope with 
 these words; "Abstract of votes for (naming the officers) returned to the auditor's
 
 508 DIGEST OF ELECTION CASES. 
 
 office of (inserting the name of the county) county," and the said auditor's signature ; 
 and the said auditor shall forward the same to the secretary of state within eleven 
 days after such election. 
 
 The statutes of Minnesota require nothing of the county canvassing 
 board but to compile the returns made to the auditor of the county, 
 and the auditor to certify to the sa:ne. The justices of the peace se- 
 lected by the auditor to constitute with him the county canvassing 
 board are not required to do anything more toward certifying to the 
 truth of the abstract than to attest the signatures of the auditor. The 
 statutes of Minnesota provide a form for the abstract and for the cer- 
 tificate, and in that form the two justices of the peace sign their names 
 under the word " attest " to the left of the signature of the auditor. (See 
 Bissel's Statutes, page 174; also Young's. Minnesota Statutes, 1878, page 
 46.) The real purpose of selecting justices of the peace as a part, of the 
 county canvassing board and to assist the auditor of the county is doubt- 
 less that they shall be present to prevent the auditor in making up the 
 abstract pf votes, if so disposed, from committing any fraud. The board 
 has no authority either to accept or reject any returns made to the 
 county auditors, in their estimate of the votes, for any informality in 
 holding an election or making returns thereof. The following is the 
 law of the State on this subject : 
 
 No election returns shall be refused by uny auditor for the reason that the same are 
 returned, or delivered to him, in any other than the manues directed herein ; nor shall 
 the canvassing board of the county refuse to include any returns in their estimate of 
 the vote for any informality in holding any election, or in making any ret urns thereof. 
 but all returns shall be received and the votes canvassed by such canvassing board 
 and included in the abstracts; provided there is a substantial compliance with the 
 provisions of this chapter. (Sec. 37. Bissel's Statutes, p. 175). 
 
 For an authoritative construction of this section see 18 Minn., 351. 
 
 The final canvass of the vote for a member of the House of Repre- 
 sentatives is made by the governor and secretary of state, in the pres- 
 ence of the auditor of state, the attorney-general, and one or more judges 
 of the supreme court. We quote from section 41 of Bissel's Statutes, 
 page 176, as follows : 
 
 Within twenty days after said election the governor and secretary of state, in the 
 presence of the auditor of state, the attorney-general, and one or more judges of the 
 supreme court, shall open the returns, made to the secretary of state, for members 
 of Congress and for electors of President and Vice-Presideut of the United State.-, 
 and shall forthwith proceed to ascertain the number of votes given to the different 
 persons for said offices, and the persons having the highest number of votes shall b* 
 considered duly elected. 
 
 It is thus made perfectly clear that it is the final action of the g 
 ernor and secretary of state, who have before them a complete abstr 
 of the votes of each county of a Congressional district, which determines 
 the election of the member of Congress. The presence of the auditor 
 of state, the attorney-general, and one or more judges of the supreme 
 court is required to insure perfect fairness in this canvass and entire 
 freedom from fraud; and, possibly, they are required to be present to 
 aid the governor and secretary of state in the canvass in case questions 
 should arise in relation to the canvass. The contestant desires that an 
 entire county should be disfranchised, not because it is made to appear 
 by the final canvass of the- vote of this county that it was not properly 
 cast, but because one man attests the certificate of the auditor who does 
 not sign himself a justice of the peace. It is not proved that the actual 
 canvass of the vote by the county canvassing board in this county was 
 not made by the auditor and two properly selected justices of the peace. 
 Indeed it does not appear in the case that the attesting witness, A. B~
 
 DONNELLY VS. \VASHBURN. 509 
 
 O'Dell, who signed himself as judge of probate, was not in fact a jus- 
 tice of the peace. The most that can he said for this certificate to the 
 abstract of the vote is that it is informal, and thisthe statute of Min- 
 nesota, in express terms, provides shall not be a good ground for set- 
 ting it aside. We quote from t he section of the statute which prescribes 
 the form of an abstract of votes for county canvassers : 
 
 The itd'owing is the form of tin- abstract of votes provided for herein to be used by 
 all county canvassing boards, lint no election shall be set. aside for the want of form 
 in the abstracts, provided they contain the substance. (Section :'>:!. Missel's Statutes, 
 
 page 173.) 
 
 See also form of abstract and certificate. Young's Minn. Stat, 1878, 
 page 40. 
 
 Tliis single item of evidence against counting the vote of Isanti 
 County is that the auditor's certificate has not beeu duly attested. It 
 cannot be said that the abstract of the vote was not canvassed by the 
 proper officers and in accordance with the law of the State. But if it 
 even appeared that but one justice of the peace acted with the county 
 auditor in making up the abstract and canvassing the vote of the 
 county there would be no legal objection to it tinder the laws of that 
 State. Subdivision 3, section 1, title 1. chapter 3, Bissel's Statutes, 
 page 118, reads as follows : 
 
 Words purporting to give a joint authority to three or more public officers, or other 
 persons, shall be construed as giving >uch authority to a majority of such officers or 
 persons. 
 
 \Y- do not think it is even important to rely upon this excellent pro- 
 vision of the statute of Minnesota. But if there should be any doubt 
 about it, the general principle of this statute makes it clear. It has 
 frequently been held, in the absence of such a statute as we have just 
 quoted, that where a certificate is by law required to be made by aboard 
 of officers composed of three or more persons, it is sufficient for a ma- 
 jority of such board to join in such certificate. (See McCrary's Law of 
 Elections, section 158, where the subject is discussed ; also Mblack vs. 
 Walls, Forty- second Congress, where it was held that if less than a 
 majority sign the certificate is not good.) In the case of Niblack vs. 
 Walls the committee say : 
 
 The committee arc of the opinion that where the law requires the certificate to be 
 made by three officers, a majority at least must sign to make the certificate valid. 
 
 Much stress is laid upon the fact that one of the attesting witnesses 
 to the certificate of the abstract of votes was a mere intruder. While 
 it may be true that where an intruder into a board, which had a duty to 
 perform requiring some judicial action, and it appeared that such intruder 
 participated in the determinations of such board, and was allowed a 
 voice in the deliberations of the board, would rentier the acts of such 
 board invalid, yet, as in this case, where the alleged intruder is not shown 
 to have performed any duty, or attempted to perform any duty, other 
 than to sign his name in the place of a justice of the peace, as a mere 
 witness to the certificate of an officer, attached to an abstract of votes 
 not shown to have been illegal or improperly made, it is hard to con- 
 ceive how such signature could invalidate the acts of the other officers, 
 who had legal authority to act. 
 
 The case of Delano vs. Morgan ('2 Bartlett, page 171) is said to be in 
 point, and to sustain the claim of the contestant that this certificate to 
 the abstract of votes is not good, and that the whole vote should be 
 thrown out. There is no possible analogy between the two cases. We 
 are not prepared to say that the law of that case is right. The question
 
 f>10 DIGEST OF ELECTION CASES. 
 
 there was whether two persons, who- were the judges of the election m 
 Pike Township. Knox County, Ohio, could legally hold an election while 
 sitting with a thirdg)erson, who acted as a judge, who had not the quali- 
 fications of an elector, and under the law of Congress and the consti- 
 tution and laws of Ohio was not competent, and was ineligible to act as 
 a judge of election. By virtue of the statute of the State of Ohio in 
 force at that time three persons, and not two in any case, were re- 
 quired to act as judges of election, each of whom was required to have 
 the qualifications of electors. These judges of election were not canvass- 
 ing officers in any sense, but it was their duty to pass upon the quali- 
 fications of each elector at the polls during the time the vote was being 
 cast. 
 
 From a reading of the report in the case of Delano vs. Morgan it ia 
 not at all clear that if there had been two competent judges and no sup- 
 posed intruder in the board the vote of this township would have been 
 thrown out. There are members of this committee who have very de- 
 cided views against the correctness of that decision. They think that r 
 notwithstanding a person acted in the capacity of a judge of the election 
 who had not the legal qualification to serve as such judge of election, 
 yet if he did act he was de facto a judge of the election, and the whole 
 vote of the township should not have been rejected and the voters dis- 
 franchised without proof that the board had acted fraudulently or 
 wrongfully in the conduct of the election. 
 
 The views of the minority of the committee, as presented by Hon. 
 M. C. Kerr, ot Indiana, in the Delano-Morgan case, seem to be unan- 
 swerable. (Contested Election Cases, 1865 to 1871, page 183.) 
 
 The case of Howard r*. Cooper (1 Bartlett, 282) is supposed to sus- 
 tain the claim that the return of the vote given in Isanti County, as it 
 appears in the record, is not a valid one. That case was one where there 
 were but two members of the board of inspectors to receive the votes r 
 where the law required in express terms that there should be three. In 
 the absence of one of the three members of the board of inspectors in 
 the State of Michigan, where this case arose, the bystanders were re- 
 quired to elect an inspector to fill the vacancy, and this was not done. 
 Under the state of the law in Michigan at that time it was not possible 
 to have a board of inspectors constituted of a less number than three. 
 The committee in the Michigan case say : 
 
 Your committee have rejected the vote of the township of Van Buren. The law 
 requires that the board of inspectors shall be composed of three persons in number. 
 The proof is clear that there weiv but two. As there \vasnoboardofinspec-torskuo\vn 
 to the law your committee see no way by which any legal effect can be given to the 
 returned vote. They have, therefore, deducted it. although it can in no way affect 
 the decision in this case, whether it be deducted or retained. 
 
 The above is all the report contains on the subject of rejecting the 
 vote of Van Buren County. It is made perfectly clear that the commit- 
 tee in that case put their decision on the ground that a board of inspect- 
 ors consisting of but two persons only could not, under the laws of 
 Michigan, legally act. We quote from the remarks of Mr. Dawes, a 
 member of that committee, while the case was under discussion in the 
 House : 
 
 In the town of Van Buren. in that county, there were but Two inspectors of elec- 
 tion, although the law requires thr^e. The town clerk is ejr oftido one of the inspect- 
 ors of electiooi. In that township the town clerk was nor present during any part of 
 the day except to cast his vote aud go away. The law requires that in the absence 
 of any one of the inspectors appointed, one or more shall be chosen from the by- 
 standers to take his place, who sball continue to act as inspector. The town clerk i* 
 also required to be one of the clerks of election to record the votes.
 
 DONNELLY VS. WASHRURN. 511 
 
 But neither of these cases can be said to have any sort of analogy to 
 the one under consideration, where the sole question is whether the fail- 
 ure to have two attesting justices of the peace to a certificate attached 
 to the abstract of the votes of a county .justifies the rejection of the en- 
 tire vote of a county. This abstract of the- vott-.v cast in the county of 
 Isanti is not attacked on the ground that it is in any sense untrue^ 
 It is doubly certified to lie true, aside from the formal certificate already 
 referred to. To this same abstract is appended the following certifi- 
 cates from the auditor of Isanti County and the secretary of state of 
 Minnesota (page 
 
 STATE OF MINNESOTA. 
 
 Count;/ of J*ditti : 
 
 I, T. C. White, county auditor of said county, do hereby certify the foregoing to be 
 a full and correct cojiy of the original abstract of the returns of the general election 
 held in said county and State on the 5th day of November, A. D. 1878, now on file in 
 iny office. 
 
 Witness my hand and the official seal of said office, at Cambridge, in said county, 
 this 8th day of November. A. I), one thousand eight hundred and seventy-eight. 
 
 ^ OFFICIAL SKAI. OF J T. C. WHITE, 
 
 , <otNTY AViuToi. County Auditor. 
 
 STATE OF MINNESOTA, 
 
 City of Saint I'auL * : 
 
 OFFICE OF SECRETARY OF STATE. 
 
 I. J. S. Irgens. secretary of state of the State of Minnesota, do hereby certify that I 
 have carefully compared the foregoing with the original thereof on file in said office, 
 and the same is a true copy thereof, and of the whole of the same. 
 
 In witness whereof I have hereunto set my hand and the great seal of the State, at 
 said Saint Paul. tLis llth day of February. A. D. 1879. 
 [SEAL.] J. S. IRGENS, 
 
 Secretary of State. 
 
 Aside from this abstract of votes, as given on pages 68 and 69 of the 
 record, the contestant has himself put in the record the highest evi- 
 dence of the fact that the vote of Isauti County was cast and returned 
 as it was counted. On page 58 of the record we find, over the certifi- 
 cate of a notary public, the following : 
 
 8th. Contestant otters certified copy from office of secretary of state of abstract of 
 votes cast in the several counties in the third Congressional district at the general 
 election held on the f>th day of November, A. D. 1878 ; also certain certificate of the 
 State canvassing board, hereto attached and marked " Exhibit 8." 
 
 By reference to Exhibit 8, thus put in evidence by the contestant, 
 on page 1'2 of the record, we find the vote of Isanti County is put down 
 as cast Washbum, 538: Donnelly, 137*; scattering, 2. 
 
 This abstract, relied upon by the contestant to prove the vote as cast 
 in the several counties of the Congressional district, is certified to by 
 the governor, secretary of state, auditor of state, attorney-general, and 
 the chief justice of the State of Minnesota, and there is also a special 
 certificate attached to this same abstract in the words and figures fol- 
 lowing: 
 
 STATE OF MINNESOTA. 
 
 Office of Secretary of State : 
 
 I. J. S. Irgens, secretary of state of the State of Minnesota, do hereby certify that 
 1 have carefully compared the foregoing abstract of votes for members of Congress 
 cast in the third Congressional district, State of Minnesota, with the original abstract 
 now on tile in this om'ce. and that the same is a true and correct copy thereof. 
 
 Witness my hand and the great seal of the State this 19th day of February, A. D 
 1879. 
 
 [SEAL.] J. S. IRGENS, 
 
 Secretary of State.
 
 J512 DIGEST OF ELECTION CASES. 
 
 The contestee has also put in evidence, properly certified, a complete 
 abstract of the vote of the district (Record, pages 343, 346). 
 
 It has already been made to appear that the notice of contestant does 
 not directly attack the vote of this county. If. in the notice, the con- 
 testant intended to charge that the vote was not cast it was his duty 
 to offer proof in support of the charge. The record is silent. If he, by 
 Ids notice, intended to claim that the vote was not counted he should 
 have proved that claim. If, by his notice, he intended to allege that 
 the votes of the several voting districts of the county were not returned 
 by the couuty canvassing board it was his duty to have offered proof 
 of that. If, by his notice, he intended to deny that the vote of this 
 Bounty was not canvassed on him rests the burden of proof of that. 
 He contents himself by simply claiming that there is a failure to have 
 3, suitable number of duly authorized persons sign the certificate to the 
 abstract by way of attesting it. 
 
 The defect in the returns from Morrison County, where the county 
 auditor wholly fails to sign the certificate, and only one justice of the 
 peace signs it, is not regarded by the committee (pages 304, 284). 
 
 Before leaving this subject it may be proper to go further into the 
 question of the duties of canvassing officers. Such duties, under the 
 statute as it exists in the State of Minnesota, are purely ministerial. 
 The canvassing board has only the right to cast up the votes as they 
 appear from the returns of the officers of the different precincts of the 
 county. They have no judicial power. In the case of the State r*. 
 Stearns (44 Missouri, page 223) the court, after holding the duties of 
 such canvassing board to be purely ministerial, say : 
 
 When a ministerial officer leaves his proper sphere and attempts to exercise judi- 
 cial functions, he is exceeding the limits of the law and guilty of usurpation. To per- 
 mit a mere ministerial officer arbitrarily to reject returns at his mere caprice or pleas- 
 ure is to infringe or destroy the rights of parties without notice or opportunity to be 
 heard ; a thing which the law abhors and prohibits. 
 
 McCrary, in his work on Elections (section 82), says : 
 
 The true rule is this : they must receive and count the votes as shown by the returns, 
 and they cannot go behind the returns for any purpose, and this necessarily implies 
 that if a paper is presented as a return and there is a question as to whether it is a 
 return or not they must decide that question from what appears upon the face of the 
 paper itself. Thus in New York it has been held that the duties of the canvassers were 
 ""to attend at the proper office and calculate and ascertain the whole number of votes 
 given at any election and certify the same to be a true canvass." This is not a judicial 
 act, but merely ministerial. They have no power to controvert the votes of electors. 
 
 In a case in 22 Barbour, page 77, the following language is used : 
 
 They (the canvassers) are not at liberty to receive the vote of any one outside of 
 the returns themselves; their duty consist* in the simple matter of arithmetic. 
 
 McCrary also says that the doctrine that canvassing boards and re- 
 turn judges are ministerial officers, possessing no discretionary or judi- 
 cial power, is settled in nearly or quite all of the States of the Union. 
 
 It has been directly settled by decisions in the State of Minnesota. 
 <2 Minn., p. 180; 10 Minn., p. 107 ; 18 Minn., p. 351.) 
 
 See McCrary's Law of Elections, sections 81, 82, 83, 84, and 85. 
 
 Even though the return must be set aside, the election must stand, 
 unless the party who attacks it shows fraud or other illegality in the 
 election. (McCrary's Election Laws, sections 306 and 364-369.) 
 
 It is hard to conceive how a mere ministerial board of officers can be 
 rendered illegal and all its acts declared to be void, simply because one 
 person does not sign himself as an attesting witness to a certificate an- 
 nexed to an abstract by such designation as to show affirmatively that 
 he was a proper officer to do so.
 
 DONNELLY VS. WASHBl'IIN. 513 
 
 It may be proper to again observe that the contestant, in his printed 
 argument before the committee, rested his objection to the vote of Lsanti 
 County solely upon the ground that the abstract of the vote, as certified 
 on page 01 of the record, was not duly signed, and not upon the ground 
 that the abstract was itself inaccurate or false in any respect. It is 
 true he claims (which is not true) that the burden rested on the, eon- 
 testee to go behind the return and prove the vote. It is quite sufficient 
 to say that the contestant has himself conclusively performed that duty 
 for the contestee. if it were admitted that it was the hitter's duty to 
 have offered any proof on the subject before the vote was attacked. We 
 do not admit, but deny, that the burden was at all, under the notice of 
 contestant, thrown upon the coutestee to prove the vote of Isanti County. 
 The contestee has. however, himself made the proof. As already appears, 
 the notice of contestant does not attack the fact that the vote was cast. 
 He simply undertakes to allege that it was not cast, &c., as pro r i<hd by 
 laic, leaving the fact of its being cast to remain unchallenged. The con- 
 testant, moreover, directly admits in his brief, in effect, that the vote 
 vras cast as returned and counted. While he says the burden rested 
 upon the contestee to prove this fact, and that the coutestee declined to 
 do so, he does say, quoting his exact language, " Had he done so the 
 contestant was prepared to show the grossest irregularities in the con- 
 duct of the election in said county." He thus admits that the vote was 
 cast, but seems to think that when contestee offered proof of the fact, 
 which he himself has already proved (as well as the coutestee), that it 
 would open the door for him to offer proof of the grossest irregularities 
 in the conduct of the election in that county, notwithstanding the fact 
 that there is not a word in his notice of contest which indicated any 
 kind of irregularities in the election in that county, but he failed to do 
 so. This county gave to the contestee, .Mr. Wasliburn, a majority of 
 401, nearly L'OO in excels of the majority which certain members of the 
 committee find was the majority of the contestant after rejecting all the 
 votes as indicated in its views. It is thus made to appear that, on 
 what could not be dignified as a technicality of the law, it is proposed 
 to unseat the sitting member, and to seat a man who was not, as is ad- 
 mitted by himself in his printed argument, elected. 
 
 It should be noted, in conclusion, on this point, that the law makes it 
 the duty of the committee or the House to send for and tabulate the 
 original precinct returns if the true vote cannot be ascertained from 
 the return. (McCrary, &c., section 345.) 
 
 POLK AND K1TTSON COUNTIES. 
 
 A portion of the committee propose to throw out the entire vote of 
 Polk and Kittson Counties. The returned vote in Polk County was 659 
 for Washburu, 180 for Donnelly ; and in Kittson County there were 183 
 votes for Wasliburn and L* for Donnelly. We have already considered 
 the objection to the vote cast in Crookston precinct, Polk County, 
 and to the vote cast in Tamarack and Two Rivers precincts, in 
 Kittson County, the only voting preeinets in Kittson County. To 
 reject the votes cast for Wasliburn in the three precincts in the coun- 
 ties named Mould still leave him 4."><i votes, which votes certain mem- 
 bers of the committee propose to reject, solely upon the ground that 
 the votes of these two counties were canvassed and returned together 
 by the canvassing board of Polk County (page 04). The abstract. of 
 11. Mis. 58 33
 
 514 DIGEST OF ELECTION CASES. 
 
 the vote, a* it appears in the record, does show that the vote of these 
 two counties was so canvassed and returned. It is conceded on every 
 hand that Kittson Count}* was, at the time of the election in Novem- 
 ber, 1878, an unorganized county. It was attached to the county of 
 Polk, an organized county, for election purposes, in accordance with 
 the law of the State of Minnesota, and the return thus made is in exact 
 accord with the requirements of the statute of the State. We give here 
 in full the section of the statute bearing upon that subject. It is as 
 follows : 
 
 After the canvass is thus completed, the judges of election, before they disperse, 
 shall inclose the said returns in a cover, seal the same, and indorse thereon the fol- 
 lowing words, viz: "Election returns of the election district of , in The county 
 
 of ," and direct the same to the county auditor of their county ; and the said 
 
 returns shall, within five days of the day of election, be conveyed by one of said 
 judges, to be chosen by lot, if not otherwise agreed upon, aud delivered to the said 
 county auditor at his office: Provided. That the returns of election in unorganized 
 counties shall be made to the auditor of the county to which they are attached for 
 elective purposes, and the votes shall be canvassed, and certificates of election issued 
 to the persons elected, in the manner provided in this chapter for canvassing 
 and issuing certificates of election in organized counties. (Bissell's Statutes, page 171. ) 
 
 The abstract and -certificate thereto and the attestation thereof are 
 in precise accordance with the requirements of the law of the State of 
 Minnesota. It is not true that the vote of the counties of Polk and 
 Kittson is lumped together in such abstract. The abstract itself, as 
 well as the proof in the case, shows that there were but two precincts 
 in the county of Kittson, and the vote of these two precincts is stated in 
 the abstract separately. There is no difficulty about separating this 
 vote on a mere inspection of the abstract, but if it were true that the 
 vote of the several precincts could not be distinguished, it would not 
 be an objection, for still the abstract would be in accordance with the 
 law of the State. It is expressly admitted by the contestant in his ar- 
 gument, and all the way through the case, that the majority for Wash- 
 burn, as returned in the county of Polk, was 497, and also that the ma- 
 jority as returned for Washbui n in the county of Kittsou was 181. On 
 what theory members of the committee are now able to say that the 
 vote of these two counties is so intermingled as to be indistinguishable 
 we have not been able to discover. In the contestant's printed brief, 
 under the head of "Polk County,'' in speaking of the eontestee's ma- 
 jority, he expressly states that 497 of his majority was received from 
 Polk County alone (printed brief, page 4). The witnesses, in speaking of 
 these two counties and giving the votes by precincts, also mention the 
 vote, as indicated in the abstract referred to. 
 
 The contestant has put into the record a complete abstract of the 
 votes cast in the several counties in the State of Minnesota, in which the 
 vote of Polk County is given, Washburn 659, Donnelly 180; and Kittson 
 County, Washburn 183, Donnelly 2 (Record, pages 58, 72). The same 
 and a similar abstract has also been put in evidence by the contestee, 
 which shows the vote as stated (Record, pages 343, 340). This abstract 
 of the entire vote cast in the third district of the State of Minnesota in 
 itself proves the vote to have been cast (or the contestant and coutestee 
 as given in the abstract found on page 64 of the record. It is proper 
 to observe that there is nothing in the record to show that other returns 
 of the vote cast in the county of Polk and the county of Kittson may not 
 have been made separately. And it is important to say that in the con- 
 testant's notice nothing is said by way of objection to the return made 
 of the vote cast in either of these counties ; but, on the contrary, the 
 contestant, in paragraph 7 of his notice, expressly admits that the votes
 
 DONNELLY VS. WASHBUKN. 515 
 
 of these two counties were cast, returned, counted, and canvassed with- 
 out attacking the regularity of the return or the counting or the can- 
 vassing of such vote. He does say in his notice that "the officers re- 
 ceiving, counting, and canvassing said alleged votes were not officers of 
 said election districts or said counties," thus expressly admitting that 
 officers did receive, count, and canvass the votes. There is, however, 
 no objection made to appear by the evidence that the officers were not 
 the proper "officers to receive, count, and canvass the votes. We are 
 cited to the testimony of one witness, John ]ST. Gilman, to show that 
 this county was not attached to some other organized county for election 
 purposes. 
 
 But the proof of this witness is, that as a lawyer he did not know 
 that it was legal for votes to be cast in unorganized counties, and he 
 had never seen a law authorizing certain unorganized counties to be 
 attached to organized counties for election purposes (page 41). The 
 contestant claims in the face of the record and the official returns from. 
 Polk County that he has proved that one precinct, to wit, Farley, which 
 gave Wash burn 9 votes and Donnelly 24 votes, was not, in fact, in 
 Polk County, as appears by the abstract. If his testimony could be 
 relied upon, and his objection was good, and contestant's notice justi- 
 fied the proof, which it does not, the contestee might be quite willing 
 to have the vote of this precinct rejected. There is no attempt to offer 
 any proof to show that any other precinct canvassed and returned in 
 Polk or Kittsou County was not in the counties indicated in the ab- 
 stract. But the sole witness relied upon to prove that Farley precinct 
 was not in Polk County has no sort of knowledge on the subject. The 
 first question asked him by the contestant (page 220) was as follows: 
 
 Q. Do you know whether the polling-place at Farley is in this [referring to Polk 
 County] or Kittson County? 
 
 His answer was 
 A. I was told that the polls of Farley was not in Polk County. No, sir; nothing 
 
 His testimony on cross-examination is as follows: 
 
 ( t >. Do you know win-re the north line of the conuty lies as regards Farley? A. I 
 could not tell you exactly where it is, but I thought it was outside of the line. 
 
 This is too shadowy to found a judgment upon to overthrow the official 
 returns and canvass of a precinct as made by officers who are to be 
 presumed to have done their duty as precinct, county, and State officers. 
 The testimony itself is not competent, because it is purely hearsay, and 
 shows upon its face that the witness is talking from mere rumor. It is 
 a well-known fact that for many years the vote in these two counties 
 has been counted, canvassed, and returned together for all State officers, 
 a- well as for electors and members of Congre. 
 
 In the absence of proof it should be conclusively presumed that the 
 election officers in election districts or precincts, and the county canvass- 
 ing board of Polk County, and the State canvassing board, composed 
 of the governor and the secretary of state, who are required to act in the 
 presence of the auditor of state, attorney-general, and one or more judges 
 of the supreme court, have done their duty. This is so clear, that it can 
 hardly be imagined that further objection would be made to counting 
 436 votes for Washburn and I-'!.") votes for Donnelly, cast in the county 
 of Polk, as to which there is no other objection than the fact that they 
 were canvassed with the votes from Kittson County. If the return 
 should be defective as to Kittson County it is wholly unobjectionable as 
 to Polk County. There is absolutely no attempt by contestant's notice
 
 516 DIGEST OF ELECTION CASES. 
 
 or ill his argument to deprive Mr. Washburu of a majority of 301 votes 
 in the county of Polk, and it is difficult to properly characterize the 
 Attempt to do so now. 
 
 In conclusion, it may be proper to say on the subject of the vote of the 
 counties of Polk and Kittson that, notwithstanding the fact that ex- 
 tended oral arguments were made by the contestant, no objection was 
 made throughout them to counting the vote of these two counties on 
 the ground that it was not properly canvassed and returned. 
 
 The returned majority for W. D. Washburn is 3,013. If the views of 
 the members of the committee who are in favor of unseating him should 
 be adopted, then there should be added to this majority the uureturned 
 votes cast for him from the counties o( Stearns (144) and Morrison (68), 
 212, which would increase his majority to 3,225. On this theory of the 
 case there should be deducted, on account of unreturned votes claimed 
 to have been cast for Donnelly in the counties of Stearns (396), Morri- 
 son (165), and Douglas (61), a total of 622 votes, which would reduce 
 Mr. Wash bum's majority to 2,603. 
 
 The entire majority for Mr. Washburu in Crookston (168), Polk 
 County, and in Tamarack and Two Rivers precinct (181 ), (his whole vote 
 in Kittson County), and all the alleged bribed votes (22), as found by a 
 portion of the committee, aggregate 371 votes, which, if deducted from 
 the number ascertained as above, would still leave the sitting member 
 with a majority of 2,232, as to which no bribery is pretended, and as to 
 no portion of whicli can there be any reasonable or possible pretense 
 for a valid or legal objection. 
 
 In the light of the law. and giving due weight to all competent testi- 
 mony in the case, not even a technical ground can be found for rejecting 
 any part of a majority thus found. 
 
 The members of the committee who concur in the annexed resolution 
 declaring that W. D. Washburn was duly elected, &c., do not agree that 
 his true majority is only 2,232. 
 
 Ten members (two-thirds) of the whole committee concur in holding 
 that Ignatius Donnelly was not elected, and that he is not entitled to a 
 seat in the House. It seems to the members of the committee who, 
 without qualification, sign this report that it is a gross inconsistency to 
 not find as a logical consequence that W. I). Washburn was duly elected 
 to his seat in' the House of Representatives. 
 
 A resolution declaring that Ignatius Donnelly is not entitled to a seat 
 in the House of Representatives is reported in accordance with the in- 
 structions of the committee. 
 
 The members of the committee who sign this report concur generally 
 in the views therein expressed and in recommending for adoption by 
 the House of the following resolutions: 
 
 Resolved, That William D. Washburn is entitled to retain his seat as 
 a member of the Forty-sixth Congress O f the United States as Repre- 
 sentative of the third Congressional district of the State of Minnesota. 
 
 Resolved, That Ignatius Donnelly is not entitled to a seat as a mem- 
 ber of the Forty-sixth Congress as Representative from the third Con- 
 gressional district of the State of Minnesota. 
 
 J. WARREN KEIFER. 
 E. OVERTOX. .In. 
 W. H. CALKINS. 
 JOHN H. CAMP. 
 W. A. FIELD.
 
 LIST OF CASES. 
 
 Page. 
 
 Acklen rs. Darrall, third Congressional district of Louisiana, Forty-fifth Con- 
 gress 124 
 
 Bisbee r. Hull, second Congressional district of Florida, Forty-sixth Congress. 315 
 
 Ijnynton vs. Loring, sixth Congressional district of Massachusetts, Forty-sixth 
 Congress 346 
 
 Bradley r*. Slenious, second Congressional district of Arkansas, Forty-sixth 
 
 Congress 296 
 
 Curtin r. Yocum, twentieth Congressional district of Pennsylvania, Forty-sixth 
 
 (.'i ingress 416 
 
 Dean vs. Field, third Congressional district of Massachusetts, Forty-fifth Con- 
 gress 190 
 
 Donnelly vs. Washbnrn, third Congressional district of Minnesota, Forty-sixth 
 Congress 439 
 
 Dufi'y r*. Mason, twenty-fourth Congressional district of New York, Forty-sixth 
 
 Congress 361 
 
 Fiuley r. Bisbee, second Congressional district of Florida, Forty-fifth Con- 
 
 givss 74 
 
 Frost r*. Metcalfe, tbird Congressional district of Missouri, Forty-fifth Con- 
 gress 289 
 
 Herbert vs. Acklen, third C'ongressional district of Louisiana, Forty-sixth Con- 
 gYess 345 
 
 Holmes, .]. (.'., Claimant, eighth Congressional district of Iowa, Forty-sixth Con- 
 gress 322 
 
 election case, eighth Congressional district of Iowa, Forty-sixth Congress. 322 
 
 Iowa election case, ninth Congressional district of Iowa, Forty-sixth Congress. 322 
 
 Mr* a be vs. Orth, ninth Congressional district of Indiana, Forty-sixth Con- 
 iiivs* 320 
 
 Mi -reliant vs. Acklen, third Congressional district of Louisiana, Forty-sixth Con- 
 
 345 
 
 O'Hara vs. Kitchin, second Congressional district of North Carolina, Forty- 
 sixth Congress 378 
 
 Patterson vs. Belford. State of Colorado, Forty- fifth Congress 52 
 
 Richardson r*. Eainey, first Congressional district of South Carolina, Forty-fifth 
 
 Congress 224 
 
 "NVigginton vs. Pacheco, fourth Congressional district of California, Forty-fifth 
 
 Congress 5 
 
 Wilson, J. J., claimant, ninth Congressional district of Iowa, Forty-sixth Con- 
 gress 1 322 
 
 Yeates vs. Martin, first Congressional district of North Carolina, Forty-sixth 
 Congress 384
 
 INDEX. 
 
 A. 
 
 Page. 
 
 Ackleu, Joseph EL, contestee. third district of Louisiana, Forty-sixth Congress. . 345 
 Ackleu, Joseph H., as. Chester B. Darrall, contested election, Forty-fifth Con- 
 gress 124 
 
 Acklen vs. Darrall, majority report .* 125 
 
 minority report 183 
 
 views of Hiram Price 154 
 
 resolutions adopted 154 
 
 Arkansas Bradley vs. Siemens, third Congressional district, Forty-sixth Con- 
 gress 296 
 
 Armfield, Hon. R. F., North Carolina, member Committee on Elections, Forty- 
 sixth Congress 295 
 
 B. 
 
 Belford, James B., coutestee, State of Colorado, Forty-fifth Congress 52 
 
 Beltzhoover, Hon. F. E., Pennsylvania, member Committee on Elections, Forty - 
 
 si xth Congress 295 
 
 Bisbee, Horatio, jr., contestee, second district of Florida, Forty-fifth Congress. 74 
 Bisbee, Horatio, jr., vs. Noble A. Hull, contested election, Forty-sixth Con- 
 
 315 
 
 Kisbee r*. Hull, report of committee 315 
 
 resolutions adopted 319 
 
 Boyuton, E. Moody, rs. George B. Loring, contested election, Forty-sixth Con- 
 gress 346 
 
 Boynton r*. Loring, majority report 346 
 
 minority report 353 
 
 resolutions adopted 352 
 
 Bradley, John M., vs. William F. Slemons, contested election, Forty-sixth Con- 
 gress 296 
 
 Bradley rs. Siemens, majority report ^- 296 
 
 minority report 313 
 
 resolutions adopted 313 
 
 C. 
 
 California Wi^iiintou vs. Pacheco, fourth Congressional district, contested 
 
 election, Forty-fifth Congress 5 
 
 Calkins, Hon. W. H., Indiana, member Committee on Elections, Forty-sixth 
 
 Congress 295 
 
 l..';unp, Hon. J. H., New York, member Committee on Elections, Forty-sixth 
 
 Congress 295 
 
 Candler, Hon. \\ 7 . A., Georgia, member Committee on Elections, Forty-fifth 
 
 Congress 3 
 
 Clark, Hon. A. A., New Jersey, member Committee on Elections. Forty-sixth 
 
 Congress 295 
 
 Cobb, Hon. T. R., Indiana, member Committee on Elections, Forty-fifth Con- 
 
 3 
 
 Colerick. Hon. W. G., Indiana, member Committee on Elections, Forty-sixth 
 
 <A>m;iv-- 295 
 
 Colorado Patterson rs. Belford, contested election, Forty-fifth Congress 52 
 
 Committee on Elections, members of, Forty-fifth Congress 3 
 
 Forty-sixth Congress 295 
 
 Currin, Andrew G., rs. Seth H. Yocum, contested election, Forty-sixth Congress. 
 
 Curt in *. Yocum. majority report 
 
 minority report 
 
 resolutions adopted
 
 20 INDEX. 
 
 D. 
 
 Page. 
 
 Darrall, Chester B., eoutestee, third district of Louisiana, Forty-fifth Congress. 124 
 
 Dean, Benjamin, vs. W. A. Field, contested election, Forty-fifth Congress 190 
 
 Dean vs. Field, majority report^. 190 
 
 minority report*. 213 
 
 resolutions adopted 213 
 
 Donnelly, Ignatius, vs. W. D. Washburu, contested election, Forty-sixth Con- 
 gress - 439 
 
 Donnelly vs. Washburn, majority report . .* 439 
 
 minority report 470 
 
 note by compiler 439 
 
 Duffy, Sebastian, vs. Joseph Mason, contested election, Forty-sixth Congress . . 361 
 
 Duffy vs. Mason, report of committee 3(51 
 
 resolutions adopted 377 
 
 E. 
 
 Elections, Committee on, members of, Forty-fifth Congress 3 
 
 Forty-sixth Congress 295 
 
 Ellis, Hon. E. J., Louisiana, member Committee on Elections, Forty-fifth Con- 
 gress 3 
 
 Etter, S. M., clerk Committee on Elections, Forty-sixth Congress 295 
 
 F. 
 
 Field, Hon. W. A., Massachusetts, member Committee on Elections, Forty-sixth 
 
 Congress 295 
 
 Field, Walbridge A., contestee, third district of Massachusetts, Forty-fifth Con- 
 gress 190 
 
 Finley, Jesse J., Jr., vs. Horatio Bisbee, jr., contested election, Forty-fifth Con- 
 gress - 74 
 
 Finley vs. Bisbee, majority report 74 
 
 minority report ., 106 
 
 resolutions adopted 106 
 
 Florida Bisbee vs. Hull, second district, contested election, Forty-sixth Con- 
 gress 315 
 
 Florida Finley vs. Bisbee, second district, contested election, Forty-fifth Con- 
 gress ?4 
 
 Frost, E. Graham, vs. Lyne S.Metcalfe, contested election, Forty-fifth Congress. 239 
 
 Frost vs. Metcalfe, report of committee 289 
 
 resolutions adopted 293 
 
 H. 
 
 Harris, Hon. J. T., Virginia, member Committee on Elections (chairman), 
 
 Forty-fifth Congress 3 
 
 Herbert, Robert 0., vs. J. H. Acklen, contested elected, Forty-sixth Congress. . 345 
 
 Herbert vs. Acklen, report of committee 345 
 
 resolutions adopted 345 
 
 Hiscock, Hon. Frank, New York, member Committee on Elections, Forty-fifth 
 
 Congress 3 
 
 Holmes, J. C., claimant, eighth district of Iowa, Forty-sixth Congress 
 
 majority report :>22 
 
 minority report 341 
 
 views of Mr. Beltzhoover 340 
 
 resolutions adopted 339 
 
 Hull, Noble A., coutestee, second district of Florida, Forty-sixth Congress 315 
 
 1. 
 
 Iowa J. C. Holmes, claimant, eighth district, Forty-sixth Congress 322 
 
 J. J. Wilson, claimant, ninth district, Forty-sixth Coinrivss 322 
 
 Indiana McCabe vs. Orth, ninth district, contested election, Forty-sixth Con- 
 gress 320 
 
 K. 
 
 Keifer, Hon. J. W., Ohio, member Committee on Elections, Forty-sixth Congress 295 
 Kitchin, W. H., eoutestee, second district of North Carolina, Forty-sixth Con- 
 gress 378
 
 INDEX. 521 
 
 L. 
 
 Page. 
 
 Loring, George B., contestee, sixth district of Massachusetts, Forty-sixth Con- 
 gress 346 
 
 Louisiana Acklen vs. Darrall, third district, contested election, Forty-fifth 
 Congress 124 
 
 Louisiana Herbert vs. Acklen, third district, contested election, Forty-sixth 
 
 Congress 345 
 
 Louisiana Merchant vs. Acklen, third^district, contested election, Forty-sixth 
 Congress 345 
 
 M. 
 
 Manning, Hon. "Van H., Mississippi, member Committee on Elections, Forty- 
 sixth Congress 295 
 
 Martin, Joseph J., contestee, first district of North Carolina, Forty-sixth Con- 
 gress 384 
 
 Mason, Joseph, contestee, twenty-fourth district of New York, Forty-sixth 
 
 Congress 361 
 
 Massachusetts Boynton vs. Loring, sixth district, contested election, Forty- 
 sixth Congress 346 
 
 Massni'husi-TTs Dean vs. Field, third district, contested election, Forty-fifth 
 
 Congress 190 
 
 McCabe, James, vs. Godlove S. Orth, contested election, Forty-sixth Congress.. 320 
 
 McCabe r. Orth. report of committee :!,' 
 
 resolution adopted 321 
 
 Merchant, W. B., vs. J. H. Acklen, contested election, Forty-sixth Congress.. 345 
 
 Merchant vs. Acklen, report of committee 345 
 
 resolution adopted 345 
 
 Metcalfe, Lyne S., contestee, third district of Missouri, Forty-fifth Congress.. 289 
 
 Minnesota Donnelly vs. Washburn, third district, contested election, Forty- 
 sixth Congre-is 439 
 
 M.-<ouri Frost rw. Metcalfe. third district, contested election, Forty -fifth Con- 
 gress 289 
 
 N. 
 
 New York Durty r*. Mason, twenty-fourth district, contested election, Forty- 
 sixth Congress 361 
 
 North Carolina O'Hara vs. Kitchin, second district, contested election, Forty- 
 sixth Congress , 378 
 
 North Carolina Yeates vs. Martin, first district, contested election, Forty-sixth 
 
 Congress * 384 
 
 O. 
 
 O'Hara, James E., vt. W. H. Kitchin, contested election, Forty-sixth Congress. 378 
 
 O'Hara r*. Kitchin, report of committee 378 
 
 resolutions adopted "SSIT 
 
 Orth, Godlove S.. contestee, ninth district of Indiana, Forty-sixth Congress 320 
 
 Overton, Hon. E., jr., Pennsylvania, member Committee on Elections, Forty - 
 
 Mxth Congress 295 
 
 P. 
 
 Pacheco, Romualdo, contestee, fourth district of California, Forty-fifth Con- 
 gress 5 
 
 Patterson, Thomas M., vs. James B. Belford. contested election, Forty-fifth Con- 
 
 ss 52 
 
 Patterson vs. Belford, majority report 52 
 
 minority report 60 
 
 resolution adopted 59 
 
 Pennsylvania Curtin r. Yocum, twentieth district, contested election, Forty- 
 sixth Congress 416 
 
 Phister, Hon. Elijah C., Kentucky, member Committee on Elections, Forty-sixth 
 
 Congress 295 
 
 Price, Hon. Hiram, Iowa, member Committee on Elections, Forty-fifth Congress. 3 
 
 H. Mis 53 34
 
 INDEX. 
 
 K. 
 
 Page. 
 
 Rainey, Joseph H., contestee, first district of South Carolina, Forty-fifth Con- 
 gress 224 
 
 Richardson, John S., vs. Joseph H. Rainey, contested election, Forty-fifth Con- 
 gress 22 4 
 
 Richardson vs. Rainey, majority report 273 
 
 minority report 224 
 
 note 224 
 
 S. 
 
 Sawyer, Hon. S. L., Missouri, member Committee on Elections, Forty-sixth 
 
 Congress ." 295 
 
 Slemons, William F., contestee, second district of Arkansas, Forty-sixth Con- 
 gress 296 
 
 Smith, J. M., clerk Committee on Elections, Forty-fifth Congress 3 
 
 South Carolina Richardson vs. Raiuey, first district, Forty-fifth Congress 224 
 
 Speer, Hon. Emory, Georgia, member Committee on Elections, Forty-sixth 
 
 Congress 295 
 
 Springer, Hon. W. M., Illinois, member Committee on Elections, Forty-fifth 
 Congress 3 
 
 Springer, Hon. W. M., Illinois, member Committee on Elections (chairman), 
 Forty-sixth Congress 295 
 
 T. 
 
 Thornburgh, Hon. J. N., Tennessee, member Committee on Elections, Forty- 
 fifth Congress 
 
 Turiiey, Hon. Jacob, Pennsylvania, member Committee on Elections, Forty- 
 fifth Congress 
 
 W. 
 
 
 
 Wait, Hon. J. T., Connecticut, member Committee on Elections, Forty-fifth Con- 
 gress 3 
 
 Washburn, William D., contestee, third district of Minnesota, Forty-sixth Con- 
 gress 1:1'.' 
 
 Weaver, Hon. J. B., Iowa, member Committee on Elections, Forty-sixth Con- 
 gress 29.~> 
 
 "Wiggiuton, Peter D., vs. Romualdo Pacheco, contested election, Forty-fifth Con- 
 gress "> 
 
 Wigginton vs. Pacheco, majority report 
 
 minority report 24 
 
 views of Mr. Springer 19 
 
 resolutions adopted 18 
 
 Williams, Hon. J. N., Alabama, member Committee on Elections, Forty-fifth 
 
 Congress 3 
 
 Wilson, John J. , claimant, ninth district of Iowa, Forty-sixth Congress . . .- 322 
 
 majority report 322 
 
 minority report 34 1. 
 
 views of Mr. Beltzhoover 340 
 
 resolutions adopted 339 
 
 Y. 
 
 Yeates, Jesse J., vs. Joseph J. Martin, contested election, Forty-sixtTi Congress. . :l- 1 
 
 Yeates vs Martin, majority report :5- 1 
 
 minority report , 39 1 
 
 resolutions adopted 390 
 
 Yocum, Seth H., contestee, twentieth district of Pennsylvania, Forty-sixth Con- 
 gress * 416 

 

 
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