[Cannon's Precedents, Volume 6]
[Chapter 169 - General Election Cases, 1917 To 1920]
[From the U.S. Government Publishing Office, www.gpo.gov]
GENERAL ELECTION CASES, 1917 TO 1920.
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1. Cases in the second session of the Sixty-fifth Congress.
Sections 144, 145.
2. Cases in the third session of the Sixty-fifth Congress.
Sections 146-150.
3. Cases in the Sixty-sixth Congress. Section 151.
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144. The Michigan election case of Beakes v. Bacon in the Sixty-fifth
Congress.
Statutes prescribing methods of preservation of ballots are directory
merely and it is sufficient if ballots have been so preserved as to
furnish satisfactory evidence of the will of the voters.
An official return shown to be erroneous and incapable of correction
ought to be rejected in entirety.
An unofficial recount, the correctness of which is not disputed,
displaces the original return.
According to the precedents of the House of Representatives, official
returns may be invalidated only in event of fraud in conducting the
election, or want of authority in the election board, or irregularities
rendering the result uncertain.
On October 5, 1917,\1\ Mr. Walter A. Watson, of Virginia, from the
Committee on Elections No. 3, submitted the report in the case of
Samuel W. Beakes v. Mark R. Bacon from the second district of Michigan.
The record in this case is rather unique in that no unworthy motive
is ascribed and there is no conflict of evidence.
The origin of the contest is explained in the report:
The official returns of the election for Congress, November 7, 1916,
gave Bacon 27,182, Beakes 27,133--a majority of 49 for Bacon.
Reviewing the returns from the various precincts, contestant
discovered that at first precinct, second ward, city of Jackson, he had
run far behind the other candidates of his party, State and Federal;
and unaware of any local sentiment or condition to produce such a
result, he instituted unofficial inquiries to ascertain the cause. As
the returns did not indicate that the contestee had polled any more
votes there than the rest of his party ticket, it was obvious that the
lost votes had not gone to his competitor. The matter became the
subject of public discussion and of press comment, and a very general
impression got abroad that a mistake had been made in the official
count. Some of the election inspectors themselves concluded they had
made a mistake. And when, two weeks later, the board of county
canvassers met to canvass the returns, four of the inspectors who held
this election sent to the board a written statement saying that, in
compiling the vote for
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\1\ First session Sixty-fifth Congress, House Report No. 194, Record,
p. 7842.
Sec. 144
Congress, they had inadvertently failed to include 70 or more votes,
and that therefore their return was wrong and did not reflect the true
state of that poll.
Contestant, from this disclosure, believing a mistake had been made
large enough to affect the result in the whole district, thereupon
retained counsel to appear before the board and obtain a correction of
the error, or, if this were not possible, a recount of the vote. In
these proceedings contestee was likewise represented by counsel.
At this juncture the board, on the application of one of the
candidates for the office of coroner, voted for at same election,
opened the boxes of this precinct and directed a recount of the
ballots. Counsel for both of the parties to this contest being present,
they concluded to examine unofficially the vote for Congress as the
recount for coroner progressed, and in this way it was ascertained
that, as the ballots then stood, the contestant was entitled to 87
votes more than the official returns had given him.
Application was then made to the board on the part of the contestant
to correct the error, or award a recount. That a mistake had been made
was openly acknowledged by counsel for contestee and conceded by the
board (Rec., 50-62); but, deeming its functions to be only ministerial
the board felt unable to correct the returns and found no provision in
the statute authorizing itself to hold a recount in case of a Federal
office. Application was then made to the State board of canvassers for
a recount of the vote, but with like result. The supreme court was then
asked for a mandamus, compelling a recount, but refused to award the
writ. The laws of his State seeming to afford no remedy for a situation
like this, contestant then determined to bring the matter before this
House for decision upon its merits.
The State law, while providing for a recount of the ballots in the
election of State offices, made no provision for such proceeding where
Federal offices were involved. However, by agreement of counsel, the
ballot boxes were produced before a notary and practically the entire
district was recounted.
This recount made it apparent that serious errors had been made in
the official count, and it was generally conceded that the official
returns were erroneous. When the board of canvassers for Jackson County
convened to canvass the returns for that county, four of the six
inspectors who conducted the election addressed to the board the
following communication:
We, the undersigned inspectors of election of the first precinct,
second ward, of the city of Jackson in said county, at the general
election held November 7, 1916, at which election State, county, and
district officers were voted for, including candidates for Congress,
hereby certify that in preparing the statement in duplicate showing the
whole number of votes cast for candidates for Representative in
Congress, and the number of votes received by each of such candidates,
which statement was certified by the inspectors of election for
delivery to the proper officers, as provided by statute, a mistake was
made in that all the votes cast for the candidates for Representative
in Congress were not included therein, and, through inadvertence and
mistake, votes cast for each of such candidates were omitted from said
statement; and that statement of the result of the election in said
precinct, so far as it relates to the office of Representative in
Congress, does not correctly represent the votes cast by the electors
in that it does not show the whole number of votes cast for each of the
candidates for said office--the votes not so counted aggregating 70 or
more votes.
Chas. F. Barckus.
Geo. E. Van Camp.
Gifford Billman.
Henry Marriott.
November 20, 1916.
The inspectors were summoned before the board and all admitted that
error had been made. But the board deeming itself unauthorized to order
a recount certified to the State board the original returns with a
separate statement calling attention to this situation.
Sec. 144
The contestant contended that as the returns were conceded to be
erroneous they should be set aside and a recount of the ballots had.
The contestee insisted that, as the ballot boxes had not been sealed
and kept in safe custody as provided by law, a recount would be
unlawful and the official returns must stand.
In support of his contention he cited the Michigan statute on the
subject:
After the ballots are counted they shall, together with one tally
sheet, be placed in the ballot box, which shall be securely sealed in
such a manner that it can not be opened without breaking such seal. The
ballot box shall then be placed in charge of the township or city
clerk, but the keys of said ballot box shall be held by the chairman of
the board and the election seal in the hands of one or the other
inspectors of election. (See. 37, Elec. Laws Mich., revision 1913.)
As to whether this provision of the Michigan law should be construed
as mandatory or as merely directory the committee decided:
The general rule applicable to the construction of such statutes is
well stated by McCrary:
``If the statute expressly declares any particular act to be
essential to the validity of the election, or that its omission shall
render the election void, all courts whose duty it is to enforce such
statute must so hold, whether the particular act in question goes to
the merits or affects the result of the election or not. * * * But if,
as in most cases, the statute simply provides that certain acts or
things shall be done within a particular time or in a particular manner
and does not declare that their performance is essential to the
validity of the election, then they will be regarded as mandatory if
they do and directory if they do not affect the actual results of the
election. (McCrary on Elections, 225. See also to same effect Barnes v.
Supervisors, 51 Miss., 305; Wheelock's Case, 82 Pa. St., 297; Allen v.
Glynn, 17 Col., 338; Parven v. Wineberg, 130 Ind., 561; Bowers v.
Smith, 111 Mo., 145; State v. Van Camp, 36 Nebr., 91.)
``Those provisions of a statute which affect the time and place of
the election and the legal qualifications of the electors are generally
of the substance of the election, while those touching the recording
and return of the legal votes received and the mode and manner of
conducting the mere details of the election are directory. (Idem 172,
and Ill., Pa., Kan., and Mich. cams there cited.)''
And where the question concerned the sealing of the ballots
themselves the same author said:
``In accordance with the rule that the errors of a returning officer
shall not prejudice the rights of innocent parties, it has been held
that, where it was the duty of a presiding officer to return the vote
sealed up, a return of them unsealed, in the absence of proof or
suspicion of fraud, was good. (Idem 236.)''
But statutory provisions regulating the conduct of elections and the
preservation of the returns are, after all, only a means to an end, and
that end is to secure a true expression of the will of the electors--a
free ballot and a fair count. To this end all merely formal legal
requirements must bend, and, if the returns are so made and preserved
as to furnish satisfactory evidence of the will of the voters, that
will must prevail.
The real question to be answered in this case is not whether the
precise form of the statute was observed, but whether the ballots
recounted were the identical ballots cast at the election, and if their
condition had remained unchanged. If so, their value as evidence is
unimpaired, and in the absence of statutory restraint, there can be no
legal objection to their being recounted.
That this is the true principle from the standpoint of authority we
quote:
``It is well settled that statutes prescribing the mode of
preservation of the ballots are directory merely, and if it be clearly
and satisfactorily proved that they have been kept intact and inviolate
in the same condition as when counted, the ballots are admissible in
evidence, although not preserved in the manner prescribed by the
statute. (15 Cyclop. Law & Proc., 426.)
``In determining this and similar questions in cases of contested
election it should be kept constantly in mind that the ultimate purpose
of the proceeding is to ascertain and give expression to the will of
the majority as expressed through the ballot box and according to law.
Rules should be adopted and construed to this end, and to this end
only. (McCrary on Elections, 232; People v. Bates, 11 Mich., 362.)
Sec. 144
``The better opinion seems to be that, if the deviation from the
statutory requirements relative to the manner of preserving the ballots
has been such as necessarily to expose them to the public or
unauthorized persons, the Court should exclude them; but if the
deviations have been slight, or of such a character as to render
doubtful the identity of the ballots, the question of their identity
will go to the jury to be determined upon all the evidence. (Idem, see.
473, and People v. Livingston, 80 N. Y., 66.)''
As to the proper sealing of the ballot boxes the committee say:
We can find no satisfactory evidence in the record to show that the
boxes ever contained any other seals than those which appeared when
they were produced before the county board, and therefore can find no
warrant for the inference of fraud based upon the assumption that the
boxes had before borne a different seal. The theory that the boxes were
tampered with after delivery to the clerk seems to us not only most
improbable but inconsistent with all the known facts of the case.
Our conclusion, therefore, is that there is no proof or reasonable
suspicion of fraud connected with these returns, that they have at all
times remained in safe and legal custody, and that their value as
evidence was nowise impaired by the failure of the inspectors to seal
the boxes in the precise manner required by the statute.
In the second precinct of the sixth ward in the city of Jackson
confusion arose over the unintentional mixing of the ballot boxes:
To sum up the whole matter: The official return is conceded by
everybody to be wrong; it ought not therefore to be made the basis of
title to anybody's seat in Congress. If it can not be corrected, it
ought to be rejected entirely. But we think the means are at hand
whereby this error may be legally corrected. In the presence of a sworn
officer of the law, counsel for both parties recounted these ballots
and reached a result which is not in dispute. We think that recount
should stand in place of the original return as the true vote.
The ballot boxes for the city were all labeled with the numbers of
their respective precincts and wards, but by mistake on election
morning one box labeled ``third precinct'' was delivered at the second
precinct, and one box labeled ``second precinct'' was delivered at the
third precinct. At the close of the election the canvassed returns at
the second precinct were placed in three boxes--two belonging to the
precinct and properly labeled, and one, the box labeled ``third
precinct'' already described; while at the third precinct all the
ballots were put in the box labeled ``second precinct'' aforesaid, and
delivered to the clerk's office.
The situation was still further complicated by the fact that when the
work of the election ended at the second precinct the inspectors failed
to return to the clerk's office along with the rest of the returns one
of the ballot boxes containing a considerable number of the ballots,
and left it in the polling booth uncovered and unlocked (though the
polling booth was locked), where it remained until it was discovered by
the clerk four months afterward, when he went to prepare for another
election. He, of course, covered and locked the box, and carried it to
the clerk's office for safe keeping.
Both sides agreed that a lawful recount of this portion of the
ballots could not be had, as identification was impossible, and in this
the committee concurred:
Though the ballots bore every internal evidence of not having been
disturbed, yet would it be a hazardous experiment and dangerous
precedent to permit a recount of returns unsecured and without lawful
custody for four months.
Contestant holds the official returns should stand; contestee
contends that the failure of the officers to preserve a portion of the
ballots, as required by law, so discredits their conduct and official
character as to invalidate their whole return, and that it should be
set aside in toto; and, that being done, that a recount should be had
of the ballots which were properly preserved and they be accepted for
the vote of the whole precinct.
Sec. 144
But on the contention that because of this irregularity the whole
return should be invalidated:
The only known fact upon which it is asked to impeach this return is
that one of the four ballot boxes in use on election day (for there was
a larger box for the reception of ballots during the day in addition to
the three in which the returns were placed) was left open in the
polling booth by the inspectors after the election, and not delivered
to the clerk as required by law. From this single act of omission we
are asked to infer a willful violation of the law on the part of the
inspectors, and contestee's brief charges it was perpetrated with
intent to commit a fraud. Is this so? We are constrained to feel
otherwise, and that such harsh conclusion is inconsistent with the
other known facts and all the probabilities of the case.
1. There is nothing else in the record reflecting upon the character
of any of the officers who held the election. One of them at least had
long been a resident of the community. No citizen complained of their
conduct during or after the election. There is nothing to show that any
one of them had any personal or political interest in the election of
the contestant. It is not known that any of them even voted for him.
Indeed it was asserted by counsel in oral argument before the committee
(committee hearing) that nearly all the inspectors in the city were
Republicans in politics and the statement was not denied. If this be
true, even barring the question of personal character, it is
inconceivable they would perpetrate a fraud to elect the Democratic.
candidate.
2. It is difficult to imagine how it was possible to consummate a
fraud by the method chosen in this case. The poll book showing the
identity and number of electors and the form of certificate showing the
votes for the candidates having been returned to the clerk along with
the other ballot boxes, it is not seen how the result could have been
affected by anything done to the ballots in the box that was left. The
only theory, consistent with crime under the circumstances, would seem
to be that the officers had all conspired in advance to frame up a
false return, and had retained this box with enough ballots to be
altered so as to sustain the return. How this could have been
accomplished where the vote was canvassed in public as required by the
Michigan law, is not attempted to be explained. But if such a scheme
had been executed, surely such wary criminals would have contrived in
some way to ``deliver the goods,'' and not have left the highly
finished work of their hands exposed to the uncertainties of fortune in
a remote corner of the city. With an official ballot in use and no
extra ballots obtainable, It is not probable that outsiders could have
been expected to aid materially in ``doctoring the returns.''
3. The facts that the total number of ballots collected from this and
three other boxes (one of which was from another precinct) corresponded
with the number called for by the poll books; that they were all
properly initialed by the inspectors; that the unused ballots returned
bore the right serial numbers; and that the vote of the candidates for
Congress shown by the ballots was substantially the same as that polled
for the other candidates of their respective parties are all strong
internal marks to show that no fraud had been practiced upon those
returns.
4. The record shows that it was 3 o'clock in the afternoon of the
second day before the inspectors finished their work; they had been
continuously on duty thirty-odd hours; under such conditions is it not
reasonable to suppose that the box was inadvertently left behind and
without thought of wrong?
On the subject of the invalidation of official returns in general the
committee lays down this rule:
In the precedents of the House we have found no case in which the
official returns have been set aside except for one or more of the
following causes:
1. Want of authority in the election board.
2. Fraud in conducting the election.
3. Such irregularities or misconduct as render the result uncertain.
In the Missouri contested-election case of Lindsay v. Scott, Thirty-
eighth Congress, a case arose resting, we apprehend, upon the same
legal grounds as obtain here. An official return was sought to be set
aside because of the subsequent destruction of the ballots; but the
ballots having been regularly numbered and counted, and the vote
entered on the poll book, in the absence of
Sec. 145
any other proof of fraud, the Election Committee reported unanimously
in favor of the return, and the House sustained the report without a
division.
In the long line of cases, embracing nearly every variety,
adjudicated by the House, we can find no precedent for the contestee's
proposal that the official return in this case be set aside, and the
portion of the ballots preserved be counted for the vote of the whole
precinct. Regarding certificates of election, based on partial returns
of an election district--a somewhat analogous question--the House in
the case of Niblock v. Walls (42d Cong.), rejected a county return
because the county canvassers did not include all the precincts in the
county.
``If a part of the vote is omitted and the certificate does no more
than show the canvass of part of the vote cast * * * it is not even
prima facie evidence, because non constat that a canvass of the whole
vote would produce the same result. (McCrary, see. 272.)
At the precinct in question 577 duly qualified voters participated in
the election; 289 of these were so fortunate as to have their ballots
properly preserved; 288--the other half--without any fault on their
part were so unfortunate as to have their ballots left or to become
mixed with others that were left at the polls and not preserved
according to law. Under these conditions we know of no principle of law
or of morals that would justify us in disfranchising one-half the
electors of that precinct and substituting the will of the other half
for that of the whole. The very statement of the proposition carries
its own refutation.
We find no sufficient cause why the official return from the second
precinct, sixth ward of the city of Jackson, should be rejected and are
of opinion it should be accepted as a true record of the vote cast for
Congress at that poll.
The committee accordingly tabulates the official returns remaining
unimpeached and adds the returns from the recount in those precincts in
which the original count was rejected. This revision gave Beakes a
total of 27,179 votes and Bacon a total of 27,047 votes in the
district, a majority of 132 votes in favor of the contestant.
In the debate in the House it was pointed out by Mr. Watson that if
the two disputed precincts were ignored the returns from the recount
accepted by both sides for the remainder of the district gave the
contestant a majority of 46 votes. Then, whether the official returns
for the two districts in question were accepted as originally reported
or whether rejected in toto, the effect was the same. The contestant
was elected in either case.
On this showing the committee unanimously recommended the adoption of
the following resolutions:
1. That Mark R. Bacon was not elected a Representative to this
Congress in the second district of the State of Michigan, and is not
entitled to retain a seat herein.
2. That Samuel W. Beakes was duly elected a Representative in this
Congress for the second district, State of Michigan, and is entitled to
a seat herein.
The debate in the House, when the case was called up for
consideration on December 13,\1\ was largely a discussion of the facts
as reported, with little difference of opinion as to the conclusions
reached by the committee, and the resolutions were unanimously agreed
to without division.
Mr. Beakes then appeared and took the oath.
145. Ruling by the Vice President on tenure of office of Senators
holding temporarary appointment in the Senate.
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\1\ Second session Sixty-fifth Congress; Journal, p. 43; Record, p.
246.
Sec. 146
On October 15, 1918, the Vice President,\1\ in response to a written
inquiry from the Financial Secretary of the Senate as to payment of
salaries of Senators and clerks to Senators holding temporary
appointment in the Senate, replied: \2\
In response to your inquiry as to the tenure of office of temporary
appointment of Senators by the governors of the several States, I have
the honor to give you the following opinion:
The supreme law of the land upon this question is the seventeenth
amendment to the Constitution of the United States. Neither Congress
nor the general assembly of any State of this Union can add to or take
therefrom. The portion of the seventeenth amendment which has to do
with this question reads as follows
``When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make temporary appointments
until the people fill the vacancies by election as the legislature may
direct.''
To my mind this clause authorizes the legislature of any State to
empower the executive to make a temporary appointment until an
election; that the legislature could either provide for a special
election to take place within a reasonable time, or a fair construction
of the constitutional provision would permit the legislature to delay
the election until the next general election in the State.
It may be contended with some plausibility that the election might be
postponed until the expiration of the term of the Senator whose death
occasioned the temporary appointment. Personally, I do not so believe,
nor is it needful under present circumstances to express an opinion
upon this subject.
The tenure of office of those holding temporary appointments in the
United States runs until the people have filled the vacancies by
election, as the legislatures may direct. In all cases now under
consideration the people will vote for United States Senators to fill
the vacancies now being filled by these temporary appointments upon the
5th day of November next. The sole question for determination is,
therefore, What constitutes an election?
The phraseology of the Constitution of the United States is radically
different from that of many of the Commonwealths. Numerous State
constitutions provide a tenure of office and then add that the
incumbent shall hold the office for that period of time and until his
successor is elected and qualified. In the seventeenth amendment to the
Constitution of the United States nothing is said about holding beyond
the election.
In the absence of disqualification to hold office, Senators will be
elected on the 5th day of November next. They may be compelled to run
the gamut of executive, administrative, judicial, and senatorial
investigation before they are entitled to qualify and take their seats
as Members of the United States Senate. They may fail to even reach the
coveted positions. Equitably, it would seem that the present incumbents
ought to be permitted to hold until the successors elected on the 5th
of November have been sworn in as Senators of the United States. Such,
however, is not the law. The tenure of office of all Senators now
holding temporary appointment in the Senate of the United States will
expire upon the 5th day of November next, and in the discharge of my
sworn duty I can certify no compensation after that date.
I regret being compelled to render this opinion, but I think my duty
is plain as a pikestaff.
Very respectfully,
Thos. R. Marshall.
146. The Iowa election case of Steele v. Scott in the Sixth-fifth
Congress.
Proof that the law has been innocently disregarded in the counting of
ballots opens the door to a recount as effectually as if deliberate
fraud had been shown.
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\1\ Thomas R. Marshall, of Indiana, Vice President.
\2\ Third session Sixty-seventh Congress, Record, p. 12.
Sec. 146
Though the marking of ballots by voters may not be in accordance with
statutory requirements, if the intention of the voter is clear the vote
will be counted.
Discussion of constructions placed upon the Australian ballot laws.
On May 22, 1918.\1\ Mr. Riley J. Wilson, of Louisiana, from the
Committee on Elections No. 1, submitted the report of the committee in
the case of T. J. Steele v. George C. Scott, from the eleventh district
of Iowa.
The sitting Member had been returned by a majority of 131 votes,
which the contestant attacked, alleging failure to count votes cast for
the contestant and illegal counting of votes for the contestee.
Two principal questions were presented for the consideration of the
committee: First, as to the counting or rejection of ballots which had
not been marked by the voter in accordance with statutory requirements;
and second, as to the validity of returns certified by election
officials who had disregarded the law in the manner of counting the
ballots.
No question was raised by either contestant or contestee as to the
correctness of the returns from 8 of the 15 counties composing the
district. In the remaining five counties both had caused a recount to
be made, arriving at slightly different results.
The committee, therefore, accepted the official returns from the
eight counties and proceeded to take a recount of the ballots in the
five counties in dispute, with the following result:
Scott 26,033
Steele 26,029
----------
Plurality for Scott 4
In the course of this recount the committee found:
With very few exceptions the differences as shown by the recount of
the contestant and contestee resulted from either including or
excluding from the count, by one or the other, ballots which had been
marked by placing a cross by the names of the presidential and vice
presidential candidates, no squares being placed opposite their names
on the ticket, but opposite the names of the presidential electors. In
some instances the voter would place an X by the name of the candidate
for President and Vice President on the Democratic or Republican ticket
as the case might be, and then proceed on down the column and place an
X by the name of each presidential elector, and then an X opposite the
name of the congressional candidate for whom he desired to vote. In
other instances the voter would place an X by the name of the candidate
for President and Vice President, then skip the presidential electors
and mark the square opposite his choice for Congressman. While this
manner of marking the ballots was not strictly in accordance with the
provisions of the law, yet, in the judgment of your committee, the
intentions of the voters were entirely clear and these votes were
counted.
It appeared that the rejection of ballots in the original count had
been based upon the theory that the manner in which voters had marked
them violated the Australian ballot law by rendering them susceptible
of identification.
On this point the report cites the opinion of the Supreme Court of
the State of Iowa in the case of Fullarton v. McCaffrey (158 N. W. Rep,
506):
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\1\ Second session of Sixty-fifth Congress, House Report No. 595,
Record, p. 6911.
Sec. 146
The distinguishing mark prohibited by law is one which will enable a
person to single out and separate the ballots from others cast at the
election. It is something done to the ballot by the elector designedly
and for the purpose of indicating who cast it, thereby evading the law
insuring the secrecy of the ballot. In order to reject it the court
should be able to say, from the appearance of the ballot itself, that
the voter likely changed it from its condition when handed him by the
judges of election, otherwise than authorized, for the purpose of
enabling another to distinguish it from others.
Distinguishing between the strict construction formerly placed upon
the Australian ballot law and the modern view now generally accepted,
the report further quotes from the same opinion:
In distinguishing between the former strict construction placed upon
the Australian ballot law and the modern view now taken by nearly all
the courts, the Iowa court, in its opinion, further says:
``Some of the earlier decisions rendered shortly after the enactment
of the Australian ballot law in the several States are somewhat extreme
in applying that portion relating to identifying marks, going, as we
think, to the verge of infringing on the free exercise of the voting
franchise, but these may be explained, if not justified, by the
supposed prevalence of corrupt practices at elections prior to such
enactment and the laudable purpose of efficiently applying the remedy.
``Subsequent experience has disclosed how the ordinary voter proceeds
under regulations in preparing his ballot, and many of the marks at
first denounced as evidencing a corrupt purpose are now thought to be
due to carelessness, accident, or inadvertence. What is an identifying
mark is not defined in our statute, and whether any mark on a ballot
other than the cross authorized to be placed thereon was intended as a
means of identifying such ballot must be determined from the
consideration of its adaptability for that purpose, its relation to
other marks thereon, whether it may have resulted from accident,
inadvertence, or carelessness or evidence designed and the similarity
of the ballot with others and the like.
``Electors are not presumed to have acted corruptly, and
identifications only which may fairly be said to be reasonably suited
for such purpose, and likely to have been so intended, will justify the
rejection of the ballot.''
Applying the law as thus construed, the committee admitted and
counted all ballots on which the voter had clearly indicated a choice
for Representative in Congress.
The second question raised by the contestant involved the observance
by judges and clerks of election of section 1138 of the Iowa Code. The
section provides:
When the poll is closed the judges shall forthwith and without
adjournment canvass the vote and ascertain the result of it, comparing
the poll lists and correcting errors therein. Each clerk shall keep a
tally list of the count. The canvass shall be public and each candidate
shall receive credit for the number of votes counted for him.
The testimony disclosed that after the polls were closed the judges
in order to expedite the count separated the ballots into piles which
were counted simultaneously, each judge counting separately. At the
close of this count the results were compiled and certified by all as
the official return.
On the propriety of this procedure the committee rule:
It is evident that all the judges did not see any one ballot, and
that no one judge saw all the ballots and that no one clerk recorded or
tallied them all. At the close of the count the results were combined.
This method is not only irregular but contrary to law.
Although no fraud may be intended by thus disregarding the provisions
of the statute, yet in the judgment of your committee proof showing
that the law has been so entirely disregarded and in effect violated in
the manner of counting and calling ballots, just as effectually opens
the door to a recount as though deliberate fraud had been actually
proven.
Sec. 147
Various other questions growing out of the contest were presented
which the committee stated but did not consider necessary to pass upon,
as the recount by the committee indicated a majority of 4 votes in
favor of the sitting Member. The following resolutions were accordingly
recommended:
First. That T. J. Steele was not elected a Representative in this
Congress from the eleventh district of the State of Iowa and is not
entitled to a seat herein.
Second. That George C. Scott was duly elected a Representative in
this Congress from the eleventh district of the State of Iowa and is
entitled to retain a seat herein.
The report was considered in the House on June 4.\1\ After brief
debate, confined to an explanation of the facts in the case, the
resolutions recommended by the committee were agreed to without
division.
147. The Alaska election case of Wickersham v. Sulzer in the Sixty-
fifth Congress.
Statutory enactments prescribing the form of ballot to be used held
to be directory and not mandatory.
Instance wherein the House reversed the ruling of a United States
Federal District Court.
The vote of innocent electors will not be invalidated because of
error or misconduct of election officers in the performance of
statutory duties.
Differentiation between mandatory election laws and election laws
merely directory.
Unsworn statements and ex-parte affidavits are not admissible as
evidence and will not be considered by the Committee on Elections in
the adjudication of an election case.
On December 4, 1918,\2\ Mr. Riley J. Wilson, of Louisiana, from the
Committee on Elections No. 1, submitted the report in the case of James
Wickersham v. Charles A. Sulzer, Territory of Alaska.
The case involved three essential points:
(1) Certain proceedings had before the judge of the United States
District Court of Alaska, first division:
The act of Congress of March 7, 1906, making provision for the
election of Delegate to the House of Representatives from the Territory
of Alaska, provided that voting at such elections should be by printed
or written ballot. Subsequently the Territorial Legislature of Alaska
passed an act adopting the Australian ballot system, including the
following exception as to the use of the official ballots, known as
section 21:
That in any precinct where the election has been legally called and
no official ballots have been received the voters are permitted to
write or print their ballots, but the judges of election shall in this
event certify to the facts which prevented the use of the official
ballots, which certificate must accompany and be made a part of the
election returns.
The Territorial board whose duty it was to canvass and certify the
result of the election canvassed the votes cast at this election with
the following result:
-----------------------------------------------------------------------
\1\ Journal, p. 425; Record, p. 7354.
\2\ Third session Sixty-fifth Congress; House Report No. 839; Record,
p. 97.
Sec. 147
Charles A. Sulzer 6,459
James Wickersham 6,490
Lena Morrow Lewis 1,346
----------
Plurality for Wickersham 31
Before a certificate was issued in accordance with the vote so
canvassed, the contestee presented a petition to the United States
District Court of Alaska, praying for a writ of mandamus directing the
Territorial canvassing board to reject the vote returned from seven
precincts as follows:
Choggiung:
For James Wickersham 25
For Charles A. Sulzer 3
Deering:
For James Wickersham 10
For Charles A. Sulzer 6
Nizina:
For James Wickersham 7
For Charles A. Sulzer 3
Nushagak:
For James Wickersham 10
For Charles A. Sulzer 3
Utica:
For James Wickersbam 13
For Charles A. Sulzer 4
Bonafield:
For James Wickersham 3
For Charles A. Sulzer 1
Vault:
For James Wickersham 8
For Charles A. Sulzer 2
In the petition it was charged that the vote at each and all of the
above named precincts except Vault and Nizins should be rejected and
not counted for the reason that the form of official ballot prescribed
by the Territorial legislature had not been used and that no
certificate explaining the facts which prevented the use of the
official ballots had accompanied the election returns as a part thereof
and as required by the laws of Alaska. In other words, that the
election officials had not complied with the provisions of section 21
of the act of 1915 in that no official ballots were used at either of
the said precincts and no certificates explaining the facts which
prevented the use of the official ballots accompanied the returns. As
to Vault precinct, it was charged that no certificate of the result of
the election in this precinct specifying the number of votes cast for
each candidate accompanied or was included in the returns. At Nizina it
was claimed that the judges of election were not sworn.
An alternative writ of mandamus was issued March 2, 1917, as
requested, and was made peremptory March 23, directing the rejection of
the vote cast at each of the precincts listed with the exception of
Nazina.
The effect of this judgment was to revise the returns as follows:
Sulzer 6,440
Wickersham 6,421
----------
Plurality for Sulzer 19
Sec. 147
In accordance with this decree, the canvassing board issued the
certificate of election to contestee:
As to the action of the court in issuing the writ of mandamus the
committee say:
The thing important in this phase of the case is the proper
construction of the Alaska election law, and particularly section 21.
Judge Jennings held the law mandatory, and specifically the proviso
in section 21, and that the failure of the judges of election to place
with and make as a part of the returns a certificate showing the facts
which prevented the use of official ballots vitiated the returns from
five of the six precincts named, and ordered the vote thereat rejected
and not counted for Delegate to Congress;
Your committee has found itself unable to agree with that
construction of the law, and herewith submits the facts and legal
considerations which have impelled that conclusion. We readily admit as
a general proposition that under the Australian ballot law the
provisions requiring the use of an official ballot must be followed,
and that no other form of ballot can be used without some special
provision of the law authorizing its use.
The statute under consideration authorized the electors in event they
were not supplied with official ballots to write or print their
ballots, that is, to use a ballot that was not official, and imposed
upon the judges of election the duty of certifying to the facts which
prevented the use of official ballots.
The conditions in Alaska were such that the Territorial legislature
wrote into the law this exception for the use of nonofficial ballots.
The question now is to determine whether or not this section of the
Alaskan election law is mandatory or is it merely directory.
The report discusses the question of mandatory and directory statutes
as follows:
The question of mandatory and directory statutes as applied to
elections has been discussed before the House of Representatives more
often than any other legal question pertaining to contested-election
cases. The precedents indicate that the rulings here have been quite as
uniform as in the courts. Each case has some peculiar distinctive
features of its own, and after the facts have developed the task
becomes one of correct application of the law as established by the
many precedents here as well as the decisions of the courts.
The following authorities are submitted as establishing a correct
interpretation of the law applicable to the issues in this case.
``Those provisions of a statute which affect the time and place of
the election, and the legal qualifications of the electors, are
generally of the substance of the election, while those touching the
recording and return of the legal votes received and the mode and
manner of conducting the mere detaBs of the election are directory. The
principle is that irregularities which do not tend to affect the
results are not to defeat the will of the majority; the will of the
majority is to be respected even when irregularly expressed. The
officers of election may be liable to punishment for a violation of the
directory provisions of a statute, yet the people are not to suffer on
account of the default of their agents. (McCrary on Elections, p. 172,
sec. 228.)''
It has been repeatedly held that where the law itself forbids the
counting of ballots of certain kinds or forms that do not meet the
provisions of the statute, it is mandatory, and that it should be so
construed by the courts.
Where the statute itself provides what the penalty shall be on the
failure to comply with its terms, if the law is constitutional, there
is no room left for construction. There is no provision of this
character in the Alaska election law or pertaining in any way to
section 21.
The Supreme Court of Missouri in the case of Horsefall v. School
District, One hundred and forty-third Missouri Reports, page 542, in
passing on a case where the irregularities charged were failure to
number the ballots and that the form of the ballots was not as
prescribed by the statute, said:
``The decisions of the supreme court of this State have not been
altogether harmonious as to the effect of irregularities upon the
result of an election, and we shall not attempt to review these cases,
but we think that it may now be said to be the established rule of this
State, as it is generally
Sec. 147
in other jurisdictions, that when a statute expressly declares any
particular act to be essential to the validity of an election, then the
act must be performed in the manner provided or the election will be
void. Also if the statute provides specifically that a ballot not in
prescribed form shall not be counted, then the provision is mandatory
and the courts will enforce it; but if the statute merely provides that
certain things shall be done and does not prescribe what results shall
follow if these things are not done, then the provision is directory
merely, and the final test as to the legality of either the election or
the ballot is whether or not the voters have been given an opportunity
to express, and have fairly expressed, their will. If they have the
election will be upheld or the ballot counted, as the case may be.''
This decision has been widely quoted and approved and is in our
judgment a correct statement of the law and peculiarly applicable to
the issues in this case.
Another very interesting decision is found in the Sixty-eighth Texas
Reports, page 30, Fowler v. The State, in which the complaints were
largely against the manner in which the election returns were made,
being
``First. That no tally sheets or poll lists were kept and returned as
required by law.
``Second. That the ballot box was sent to the county judge through
the United States mail instead of by the presiding officer or manager
of election.
``Third. Because the county judge did not receive the returns sent
him.
``Fourth. Because the returns were not made in triplicate as required
by statute.''
In this case the court, after reviewing the grounds upon which the
election was asked to be set aside, said:
``Without separately considering each of the objections raised to the
manner of holding the election at precinct No. 3 and of returning its
results, all such objections, including those we have already passed
upon, may be disposed of on the ground that the requirements of the
election law not obeyed by the managers were not mandatory but
directory. The statute does not say that a failure to pursue the course
pointed out by it in these respects shall vitiate the election, nor is
there anything in the nature of these provisions which requires us to
give them that effect. The object of every popular election for
officers is to ascertain the will of the people as to what persons
shall serve them as such in the various positions to be filled. A free,
fair, and full expression of the public will is sought, and certain
means are prescribed by law as the most certain to bring about the
desired result. Some of these, from their very nature, or from the
manner in which they are prescribed, are deemed absolutely essential to
the accomplishment of the desired result. Among these may be named the
requirement that the voting shall be by ballot; that it shall take
place on a certain day and within certain precincts, etc. These are
prescribed to insure perfect freedom of choice to the citizen, to serve
his convenience in getting to the polls, and to bring out a full vote
at the election.
``Then there are other requirements, such as those which have been
neglected in this case, that are merely formal in their character. The
law deems that it is proper that they should be pursued in order to
prevent frauds in the election and tampering with the votes and
returns. If strictly followed, they furnish the best evidence that the
election has been fairly conducted, and the burden of proof to show
that it was not, either wholly or in part, rests upon the party
attacking the returns. But these requirements are always treated as
directory unless the law, either expressly or in effect, makes them
essential to the validity of the election. Electors must not be
deprived of their votes on account of any technical objection to the
manner in which the election has been held, or for any misconduct on
the part of its presiding officers, if these have not affected the true
result of the election. (Cooley's Constitutional Limitations, 617, 618;
Prince v. Skillin, 71 Maine 361.) This would be to deprive the citizen
of a great constitutional privilege for a mere informality; to place
within the power of a few persons to defeat the right of suffrage
altogether. The very means provided to insure a fair and proper
election might become an instrument of fraud and dishonesty.''
The New York Court of Appeals, in the case of People ex rel. Hirsh v.
Wood, New York Reports, 143, stated the law in relation to this
question as follows:
``We can conceive of no principle which permits the disfranchisement
of innocent voters for the mistake or even willful misconduct of
election officers in performing the duty cast upon them.
Sec. 147
The object of elections is to ascertain the popular will and not to
thwart it. The object of election law is to secure the rights of duly
qualified electors and not to defeat them. Statutory regulations are
enacted to secure freedom of choice and to prevent fraud, and not by
technical obstructions to make the right of voting insecure and
difficult.''
We have been cited to numerous authorities, holding that the
mandatory or directory character of a statute does not always depend
upon its form or the terms used, but rather grows out of the nature of
the subject with which it deals, and the legislative intent and purpose
in framing and adopting the law. With these authorities we agree, but
they can only be applied here in so far as they are applicable to the
case under consideration.
The application of the law as stated is then made to the case at
issue:
As we understand and appreciate the facts and issues in this case the
legislative intent is very clear and the purposes and scope of the law
easily determined.
The law of Alaska providing for official ballots, in the respect that
it contains an exception authorizing the voter to use under certain
conditions a ballot of his own make, is in a claw by itself.
There are a few statutes directing that in event the regular official
ballot is not supplied, certain designated officers may prepare and
furnish a ballot in the form prescribed by law. This, then, becomes an
official ballot.
Section 21 of the Alaska law says, in the event that the official
ballots are not received, ``the voters are permitted to write or print
their ballots.'' These are the methods to which they had been
accustomed under the congressional act. The ballot prepared by the
elector provided for in section 21 is not official, but it is legal. He
is doing just what the law says he may do.
The statute imposes certain duties upon the judges of election at
each precinct; that is, they receive the official ballots from the
United States commissioner, and deliver such ballots to the electors as
they appear to vote, and in the event they have no official ballots
with which to supply the voters, should they avail themselves of the
privilege given to write or print their ballots, then the said officers
shall certify to the facts which prevented the use of the official
ballots, which certificate must accompany the returns as a part
thereof.
The object of this certificate is to furnish an explanation by these
officers showing why they had not supplied the electors with the
official ballots and had permitted the use of those that were not
official.
Now, why should the voter who had done just what the law told him he
might do lose his vote because these officials neglected to make out
and enclose with the returns a certificate, making the proof that they
had not failed in the discharge of the duties imposed upon them. The
court held section 21 to be mandatory not only in its requirement that
this certificate be made (and we incline to agree with him in so far as
the officials were concerned), but to the extent that no proof of its
existence could be considered unless it be with and made a part of the
returns and that no manner or form of evidence as to the failure to
receive the official ballots could save the rejection of the vote.
It is with this latter strict construction we can not agree. Neither
do we find anything in the law to authorize the assumption that the
legislature intended that innocent voters might forfeit their franchise
without any fault of their own or that any man might be deprived of his
traditional day in court
In construing this statute and arriving at the legislative intent the
general situation in Alaska becomes important in many respects. The
extent of its territory, and the conditions prevailing in relation to
transportation and communication between its various sections are parts
of the res gestae. Alaska is in extent of territory one-fifth the size
of the United States, thinly populated, and with the exception of a few
towns and cities is composed of settlements scattered over its
extensive area. There are few railroads and the method of communication
to many points is difficult and uncertain. In all this territory at the
November election of 1916 only about fifteen thousand (15,000) ballots
were cast for the Delegate to the House of Representatives. It is only
natural that the legislature in adopting the Australian ballot should
take these facts into consideration and in order that all the people in
the Territory might have the opportunity to exercise the elective
franchise, it being evident in many instances that at precincts in
remote sections the official
Sec. 148
election supplies would not be delivered, enacted the provision, which
is such an unusual exception to the Australian ballot law in general.
It was foreseen by the Territorial legislature that it would be
necessary, if the electors in many of the outlying precincts were to
have the opportunity to vote at all, they should be given the privilege
of either writing or printing their ballots, and the legislature's
foresight and expectstions in that respect are abundantly confirmed by
the facts in this case. This provision was enacted in the interest of
the electors in remote places in order to secure for them the exercise
of the privilege of voting, and it is not quite possible to believe
that in making it the duty of the election judges to certify to the
facts which prevented the use of the official ballots it was ever
intended that their failure to do so would vitiate the returns and
deprive the citizen of the right to have his ballot counted as cast.
According to the record in this case, there were only eight precincts
in the entire Territory where the official ballots were not received in
the 1916 election. From five of these there were no certificates
accompanying the returns showing why official ballots were not used. It
is not contended that any fraud was committed at any of these
precincts, and there is no proof in the record to that effect.
If the result of the election should be determined by the vote at
these precincts, why should not a candidate be permitted to submit
proof to a court or to the House of Representatives showing the facts
as to the presence or want of presence of the official ballots? In the
judgment of your committee, such a right existed. We are further of the
opinion that the record satisfactorily establishes the fact that
official ballots were not received at the precincts in question and
that the proof is made by legal and competent evidence.
In announcing this conclusion, the committee incidentally refer to
the character of evidence presented:
It is contended that this conclusion could not be reached without
considering ex parte affidavits, private letters, telegrams, and
incompetent hearsay. It is true that there is much private
correspondence by letter and wire and a number of ex parte affidavits
in this record which are not evidence, and which have no place here,
and have not been considered by the committee in reaching its
conclusion.
It is important, therefore, to state the facts established by legal
proof upon which we reached the conclusion that the required official
ballots were not supplied.
148. The election case of Wickersham v. Sulzer, continued.
In the absence of proof to the contrary, election officers are
presumed to have fully discharged the duties devolving upon them as
such.
The vote of qualified electors offering to vote, but improperly
denied, were counted as if cast.
The domicile of soldiers in the service of the United States is
established by nativity or by residence with the requisite intention or
derivative as that of family or dependents.
Service in the United States Army does not disqualify as a voter at
the legal place of residence, but residence may not be acquired by
length of time quartered under Army orders in any particular place.
Native Indians who had severed tribal relationship held to be
citizens and entitled to vote.
To qualify as an elector a person must be in legal acceptation, an
inhabitant, initiating and continuing his residence voluntarily, on his
own motion and in his own right.
Where the nature of illegal votes could not be determined the
committee on election made a pro rate reduction from the poll of each
candidate.
Sec. 148
At the Vault precinct the judges had failed to sign the certificate
in the back of the register and tally book. They had, however, signed
the duplicate certificate transmitted to the clerk of the court and had
complied with all other formalities. So, in the absence of any evidence
of willful misconduct, the committee held the omission was not vital
and that the vote at Vault should not have been rejected.
(2) As to the legality of votes cast by Indians in certain sections
of the Territory:
It is contended by both parties that in certain precincts the votes
of a number of Indians should not have been received and counted; that
is, the contestant claims that in a number of precincts where Indians
voted and the majorities were for the contestee, the Indian were not
entitled to vote, for the reason that they had not severed their tribal
relations and were not citizens in the sense that they might be
qualified electors; while on the other hand, the contestee claims that
at certain other precincts where the majorities were for the
contestant, a portion of the vote being that of Indians, was not legal
for like reasons. In these charges are also included Russians of mixed
Indian blood called Creoles and Eskimos. Apparently in respect to
citizenship and the right to vote all these are classified as Indians.
Under the law of Alaska every native Indian, born within the limits
of the Territory, who has severed his tribal relationship and adopted
the habits of civilized life becomes a citizen and is entitled to vote.
The law provides methods by which he may obtain evidence showing that
he has met with the requirements of the law, but this is not
compulsory, leaving the matter a question of fact peculiar to the
individual case.
From the indefinite, conflicting, and unsatisfactory character of the
evidence in this case it is not practical or possible to say whether or
not the election officers were within the law in receiving or rejecting
the votes of Indians who voted or would have voted at this election.
With very few exceptions, the evidence is of a general nature, and with
respect to many there is no evidence at all. The evidence fails to
disclose any intention or attempt to commit fraud at either of the
precincts in question and where the Indians voted. The election
officers have particular knowledge of the conditions and the people in
the locality surrounding precincts where they preside, and it is their
duty to know that each voter is duly qualified before permitting him to
deposit a ballot. These officers are presumed to have discharged this
duty. The evidence shows very clearly that many of the Indians were
entitled to vote. The Indian vote is mingled with that of other
citizens, and the record points out no intelligent way by which it may
be ascertained that any injury is actually proved to have resulted to
either candidate on account of the Indian vote. It is probable that a
portion of this vote is illegal, but the action of election officers
charged with the duty of conducting elections should not be set aside
except upon definite proof, and the votes once received by such
officers should not be rejected unless the proof establishes in some
definite way that the voters were not qualified and the number and
identity of votes that should not be counted, and especially is this
true in the absence of proof of any conspiracy to commit fraud.
The attorney for the contestee, in his very able argument before your
committee, after reviewing the entire question of this phase of the
case, took the position that if a portion. of the Indian vote was
counted it should be counted as an entirety, or if rejected it should
be rejected as a whole.
For the reasons above stated, the committee has reached the
conclusion that the fairest thing to do, in view of the testimony, is
to count it all.
Now, as exceptions to the above, George Demmert and R. J. Peratovich,
who appeared in person and offered to vote at Craig precinct, should
have been permitted to do so.
The testimony shows that they were qualified electors under the laws
of Alaska, and each on being examined as a witness states that he
appeared in person and offered to vote and that he would have voted for
Sulzer, and the committee is of the opinion that their votes should be
so counted.
Sec. 148
(3) As to the legality of the votes of soldiers of the United States
Army stationed at Fort Gibbon and who voted there, and the votes of
other soldiers in the Army who voted at Eagle precinct:
The evidence shows conclusively that 36 soldiers in the United States
Army, stationed in Alaska, voted in this election--4 at Eagle and 32 at
Fort Gibbon. Apparently there is no difference or controversy as to the
facts in relation to these soldiers, except in respect to their right
to vote at these precincts in Alaska. Hence, the question is purely of
a legal nature. The facts may be stated as follows:
Each and all the men whose votes are in question here came to Alaska
as soldiers in the United States Army. They remained in such service
from the respective dates of their arrival in Alaska up to and until
November 7, 1916, the date of this election, and were there in such
service on that date. All were enlisted and accepted for service in the
States.
Seven were honorably discharged and reenlisted in Alaska on the
following day.
Each and all of them had been in the Territory more than a year
immediately preceding the date of election and at Eagle or Fort Gibbon
more than 30 days immediately preceding election day.
If they had acquired a legal domicile in Alaska, they were entitled
to vote and the votes should be counted; otherwise not.
To become a citizen and a qualified elector in Alaska, a bona fide
residence of one year in the Territory and 30 days in the voting
precinct is required.
The question of domicile or place of residence of those in the
military service of the country either as officers or as men in the
line, has been before Congress and in the courts in a number of cases,
but not of very recent date so far as Congress is concerned. The
subject is one of great importance and absorbing interest just at this
time, not only in this case and in Alaska, but throughout the country.
Hence a very careful examination of the authorities bearing upon this
question has been made, and we submit as a correct statement of the law
the following:
``(1) In the case of an officer or enlisted man in the Military
Establishment, held that his domicile during his continuance in the
service is the domicile or residence which he had when he received his
appointment as an officer or entered into an enlistment contract with
the United States. This is true whether such a domicile was original--
that is, established by nativity--or by residence with the requisite
intention, or derivative, as that of a wife, minor, or dependent. This
residence or domicile does not change while the officer remains in the
military service, as his movements as an officer am due to military
orders; and his residence, so long as it results from the operation of
such orders, is constrained, a form of residence that works no change
in domicile.
``(I. A.) A person in the military service of the United States is
entitled to vote where he has his legal residence, provided he has the
qualifications prescribed by the laws of the State. He does not lose
such residence by reason of being absent in the service of the United
States. The laws of a particular State in which he is stationed and has
only a temporary as distinguished from a legal residence may, however,
permit him to vote in that State after a certain period of actual
residence.
``(Digest of Opinions of the Judge Advocates General of the Army.
Howland. Pages 976, 977, 978.)''
Also from McCrary on Elections, page 70, sections 90 and 91:
``Sec. 90. The fact that an elector is a soldier in the Army of the
United States does not disqualify him from voting at his place of
residence, but he can not acquire a residence, so as to qualify him as
a voter, by being stationed at a military post whilst in the service of
the United States.
``Sec. 91. Soldiers in the United States Army can not acquire a
residence by being long quartered in a particular place, and though
upon being discharged from the service they remain in the place where
they have previously been quartered, if a year's residence in that
place is required as a qualification for voting, they must remain there
one year from the date of discharge before acquiring the right to
vote.''
Sec. 148
Applying this law to the facts here, the 36 soldiers stationed in
Alaska who voted at Eagle and Fort Gibbon were without legal domicile
there, and were not in any legal sense inhabitants of the Territory and
therefore were not qualified electors therein.
It is contended, however, that these soldiers had changed their
residence from the States where they enlisted to Alaska and had
acquired domicile there. The evidence in support of this is that they
appeared on election day, and upon their votes being challenged, took
the required oath containing the declaration of residence and voted.
The contention is made that the residence or domicile of a soldier is
determined by his intention; that (quoting from brief) ``these soldiers
have already shown their purpose and have established their residence
in Alaska.''
This argument seems to be based upon the assumption that the soldier
or officer in the military service sent under orders away from the
State of his original domicile and stationed in another State, while
subject to the orders of his superiors, can have and exercise
voluntarily and in his own right the requisite intention necessary to
effect a change in domicile and that, after being so stationed for the
statutory period required for voting, a declaration of choice of
domicile accompanied by the act of voting constitutes sufficient
evidence that the change has been effected.
Without stopping to discuss the public policy of approving here and
establishing a rule of this kind, it is sufficient to say that the law
and authorities are in practical harmony and are all the other way.
So under the laws of Alaska, as in all the States in so far as the
committee is informed, a person to be a qualified elector must, in
legal acceptation, be an inhabitant.
Manifestly no one can become an inhabitant in Alaska or in any of the
States (at least without some provision of the law authorizing) who
does not initiate and continue his residence there voluntarily on his
own motion and in his own right.
At Eagle and Fort Gibbon precincts, where the 36 votes thus
invalidated by the committee were cast, a total of 92 votes were
polled. As it was not shown for whom the 36 votes were cast, the
committee, in order to save the votes legally cast and avoid discarding
the entire poll at the precincts affected, ruled that a pro rata,
reduction should be made from the poll of each candidate.
Readjustment of the entire vote of the district in accordance with
these findings of the committee on the various issues presented
resulted as follows:
Wickersham 6,480
Sulzer 6,433
----------
Plurality for Wickersham 47
On the strength of this showing the committee recommended the
following resolutions:
1. That Charles A. Sulzer was not elected a Delegate to the House of
Representatives from the Territory of Alaska in this Congress, and is
not entitled to retain a seat herein.
2. That James Wickersham was duly elected a Delegate to the House of
Representatives from the Territory of Alaska in this Congress, and is
entitled to a seat herein.
The case was spiritedly debated in the House on January 3, 4, and 7,
1919.
On January 4,\1\ Mr. John L. Burnett, of Alabama, moved to recommit
the report to the Committee on Elections No. 1, with instructions to
report thereon by or before February 10, 1919.
On January 7,\2\ the question being taken on the motion to recommit
it was decided in the negative--yeas 131, nays 187. The question then
recurring on the
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\1\ Journal, p. 53; Record, p. 1059.
\2\ Journal, p. 55; Record, p. 1106.
Sec. 149
resolutions recommended by the committee, the resolutions were agreed
to--yeas 229, nays 64.
Thereupon, Mr. Wickersham appeared and took the oath.
It may be noted that Mr. Wickersham belonged to the minority party of
the House, while contestee belonged to the majority party.
149. The Oklahoma election case of Davenport v. Chandler in the
Sixty-fifth Congress.
Instance wherein the committee on elections submitted resolutions
deciding an election case without accompanying report.
On January 27, 1919,\3\ Mr. John N. Tillman, of Arkansas, a member of
the Committee on Elections No. 2, introduced the following resolution:
Resolved, First. That James S. Davenport was not elected to the House
of Representatives from the first district of the State of Oklahoma in
this Congress and is not entitled to a seat therein.
Second. That T. A. Chandler was duly elected to the House of
Representatives from the first district of the State of Oklahoma in
this Congress and is entitled to seat therein.
On February 5,\4\ Mr. Tillman said:
Mr. Speaker, I ask to call up House resolution 523 and dispose of it.
It is the report of the Committee on Elections No. 2, seating Mr.
Chandler of Oklahoma, the sitting Member.
The resolution was agreed to without debate or division.
150. The New York election case of Gerling v. Dunn in the Sixty-fifth
Congress.
Congress has authorized the use of voting machines in the States.
Although the notice of contest filed by contestant was defective, the
House considered the merits of the case.
The House of Representatives does not pass upon matters of policy in
the conduct of elections or questions relating to the validity of State
laws, and such questions should be addressed to the legislative
department of the State government or adjudicated in the State courts
respectively.
On February 17, 1919,\5\ Mr. Riley J. Wilson, of Louisiana, from the
Committee on Elections No. 1, submitted the report in the New York case
of Jacob Gerling v. Thomas B. Dunn.
The vote polled for contestant and contestee, respectively, as shown
by the official returns in this case, was as follows:
Thomas B. Dunn 29,894
Jacob Gerling 13,867
----------
Majority for Dunn 16,027
The contestant in his notice of contest duly filed alleges that the
election was illegal and unconstitutional and therefore void for the
reasons that:
First. The voting machines used at said election did not comply with
the requirements of the election law of the State of New York and that
they were not legal machines as defined by the
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\3\ Third session Sixty-fifth Congress, Journal, p. 123; Record, p.
2186.
\4\ Journal, p. 152; Record, p. 2757.
\5\ Third session Sixty-fifth Congress House Report No. 1074; Journal
p. 199; Record p. 3578.
Sec. 151
statutes of that State and were not so arranged for use in voting as
required by the New York election laws.
Second. That certain provisions of the constitution of the State of
New York had been violated in the manner and method of conducting the
election by the use of such voting machines and also by the enactment
of a special law by the Legislature of New York State designed
especially for Monroe County, under which law this election was
conducted.
Third. That the voting machines used at this election were prepared
and arranged by an expert and not by the proper legally constituted
authorities, and that such machines were not properly tested before use
at this election.
Fourth. That the machines used at this election did not provide a
secret method of voting as provided by the New York State constitution.
The report says:
The notice of contest is faulty and defective in the respect that the
allegations are vague, indefinite, and general. However, the committee
considered the merits of the case.
Practically all the grounds upon which the contest is based relate to
matters of policy that should be addressed to the consideration of the
legislative department of the State government, or to questions proper
to be determined and adjudicated by the courts of New York State and
not by Congress.
It has not been and should never be the policy of the House of
Representatives to pass upon the validity of State laws under which
elections are held when the complaint is that the legislative enactment
is contrary to the provisions of the State constitution.
The contestant bases his case entirely upon questions relating to the
use, authorization and arrangement of voting machines provided for
voters at the election. The committee point out:
Congress has authorized the use of voting machines in the States.
On February 14, 1899, section 27, Revised Statutes of 1878, was
amended and reenacted to read as follows:
``All votes for Representatives in Congress must be written or
printed ballot or voting machine, the use of which has been duly
authorized by the State law; and all votes received or recorded
contrary to this section shall be of no effect.''
Voting machines have been in use in New York State for many years,
authorized by its constitution, provided for by its legislature, and
sanctioned by its courts.
The evidence in this case fails to support by definite proof any of
the charges made against the machines used at this election or to
disclose any fraudulent or illegal action on the part of any official
connected with the conduct of the election, or the canvass, tabulation,
and return of the vote.
As the contestant did not allege his own election or the failure of
the contestee to receive a majority of the votes cast, the committee in
reporting to the House omitted the usual resolution declaring the
contestant not elected and not entitled to a seat therein, and
submitted the following only:
That Thomas B. Dunn was duly elected a Representative in this
Congress from the thirty-eighth congressional district of the State of
New York and is entitled to retain a seat herein.
The resolution was agreed to without debate.
151. The Missouri election case of Salts v. Major in the Sixty-sixth
Congress.
The committee having found the sitting Member duly elected, deemed it
unnecessary to consider claims that he was entitled to additional
votes.
It is not the policy of the House of Representatives to pass upon the
validity of State election laws alleged to be in conflict with the
State constitution.
Sec. 151
A law forbidding the counting of ballots which fail to conform to
statutory requirements is mandatory, and such ba1lots win not be
counted.
On May 11, 1920,\1\ Mr. Frederick W. Dallinger, of Massachusetts,
from the Committee on Elections No. 1, submitted the report of the
committee in the Missouri case of James D. Salts v. Sam C. Major.
According to the official returns in this case the contestee received
20,300 votes and the contestant 20,222 votes, a majority of 78 votes
for the sitting Member.
Numerous irregularities were alleged in the notice of contest, but in
the testimony adduced and in the briefs filed the contestant relied
entirely on allegations that a fraudulent alteration of the tally sheet
in the second ward of the city of Sedalia credited to contestee 40
votes which should have been credited to contestant, and that an error
in the tabulation of the vote in Boone Township in Green County had
deprived contestant of 37 votes which should have been counted for him.
The sitting Member in his answer denied these allegations and claimed
that the entire vote of the fourth ward of the city of Springfield, in
Green County, should be rejected on account of the failure of election
officials to indorse thereon the registration numbers of the voters as
required by the election laws of the State of Missouri.
Considering the ballots themselves to be the best evidence, the
committee directed the Sergeant at Arms to send for ballots and records
of the two precincts in question. The ballots at Sedalia had been
destroyed at the expiration of one year from the date of the election
as provided by the election law of the State of Missouri. But the
ballots cast in Boone Township were still available and were forwarded
to Washington and counted by the committee.
The count of these ballots by the committee increased the vote cast
for James D. Salts by 32 votes over that certified in the official
return from the precinct.
As to the charge of fraud in altering the tally sheets in the second
ward of the city of Sedalia, the committee say:
In regard to the vote in the second ward of the city of Sedalia, in
Pettis County, where the contestant claim that through a fraudulent
alteration of the tally sheet 40 votes were taken from him and added to
the vote of his opponent, in the absence of the ballots themselves, the
committee was obliged to rely upon the testimony as contained in the
record of the case. While it is true that the tally sheet and the
official record were altered, the overwhelming weight of the testimony
shows that there was no fraud involved, but that the alterations were
honestly made to correct a mistake of an incompetent election clerk.
The evidence discloses the fact that the two election clerks in this
ward on election day were Charles P. Keck, Republican, and Mark A.
Magruder, Democrat. It also appears from the evidence that Mr. Keck,
the Republican clerk, was a bank cashier, while Mr. Magruder, the
Democratic clerk, was inexperienced in clerical work and had continual
trouble with his tally sheet during the day; and that when the vote was
tabulated on election night it was found that Mr. Magruder's total did
not agree with that of Mr. Keck as to several of the offices, including
that of Congressman. Mr. Kell, the Republican judge of elections,
thereupon instructed Mr. Magruder to make his totals agree with those
of Mr. Keck. In accordance with these instructions Mr. Magruder made
the changes in the tally sheet which are complained of by the
contestant.
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\1\ Second session Sixty-fifth Congress, House Report No. 961;
Record, p. 6892.
Sec. 151
Your committee therefore finds that the official returns of the
second ward in Sedalia, as certified to by the election officers and
the secretary of state, are the correct returns, and that James D.
Salts, the Republican candidate, is not entitled to any additional
votes from said ward.
As to the fourth ward of the city of Springfield:
The committee having found that as a matter of fact Sam C. Major, the
Democratic candidate, was duly elected, it is unnecessary to consider
the claim raised by counsel for the contestee that the entire vote of
the fourth ward of the city of Springfield which was included in the
official returns, should be thrown out. Your committee, however, is of
the opinion that attention ought to be called to the fact that the
precedents of the House of Representatives clearly support the
contention of the contestee in this matter.
It is admitted that section 5905 of the Revised Statutes of the State
of Missouri (1909) provides that in cities where registration of voters
is required--and it is also admitted that Springfield is one of such
cities--the clerks of election shall place on each ballot ``the number
corresponding with the number opposite the name of the person voting,
found on the registration list, and no ballot not so numbered shall be
counted.''
It is further admitted that this provision has been in the statutes
of the State of Missouri for many years and that it has never been
declared to be in conflict with the constitution of that State by any
tribunal either Federal or State.
The contestant in rebuttal submitted that this statute was in
contravention of the constitution of the State of Missouri, but the
committee reaffirmed the decision in the case of Gerling v. Dunn in the
Sixty-fifth Congress, holding that it was not the policy of the House
of Representatives to pass upon the validity of State laws under which
elections are held when the complaint is made that the legislative
enactment is contrary to the provisions of the State constitution.
The contestant further submitted that the statute, even if
constitutional, was directory merely and not mandatory, and failure to
comply with its requirements did not vitiate the vote. The committee
held this contention to be at variance with the well-established
precedents of the House of Representatives, and cited the statement
from the decision in the case of Wickersham v. Sulzer to the effect
that where the law itself forbids the counting of ballots which do not
meet its requirements, the statute is mandatory.
In further support of this doctrine the committee cite the cases of
Miller v. Elliott in the Fifty-second Congress, and Threasher v. Enloe
in the Fifty-third Congress, and quote the following excerpt from the
opinion by the Supreme Court of the State of Missouri in the case of
Horsefall v. School District:
If the statute provides specifically that a ballot not in prescribed
form shall not be counted, then the provision is mandatory and the
courts will enforce it; but if the statute simply provides that certain
things shall be done and does not prescribe what results shall follow
if these things are not done, then the provision is directory merely.
They then make the following application to the present case:
In the present case the Missouri statute provides specifically that
``no ballot not so numbered shall be counted,'' and is clearly
mandatory and not directory. Accordingly, if the other facts in the
case did not clearly show that Sam C. Major, the Democratic candidate,
was duly elected, the committee would be obliged, if it followed its
own precedents, to hold as a matter of law that the vote of the fourth
ward of the city of Springfield should be entirely thrown out. If this
were done, then even if the entire contention of the contestant as set
forth in his brief were granted, the contestant would have only 20,093
votes, whereas the contestee would be entitled to 20,127 votes and
would still be elected by a plurality of 34 votes.
Sec. 151
If, however, we take the facts as to the correct returns of the
election as found by the committee in this report and then throw out
the entire vote of the fourth ward of the city of Springfield in
accordance with the law and the precedents of Congress, it would make
the total vote of the contestee, Sam C. Major, 20,169 and the total
vote of James D. Salts, the contestant, 20,048, which would give the
contestee a plurality of 121 votes over the contestant.
In conformity with its findings on the various questions presented,
the committee amended the total returns, giving Sam C. Major 20,310
votes and James D. Salts 20,254 votes, a plurality of 56 votes for the
sitting Member. The committee therefore unanimously reported
resolutions declaring the contestant was not elected and that the
sitting Member was elected, and confirming his title to the seat.
The case was briefly debated on May 18, 1920,\1\ and, after a
perfunctory explanation by Mr. Dallinger, the resolutions reported by
the committee were agreed to without division.
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\1\ Journal, p. 412; Record, p. 7231