[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.


   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.


  144. The Michigan election case of Beakes v. Bacon in the Sixty-fifth 
  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
  \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 

  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 
  ``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. 
  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 
  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 
  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 
  ``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.
  \1\ Second session Sixty-fifth Congress; Journal, p. 43; Record, p. 
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 
  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 
  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.
  \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 
  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 

  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, 
  \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 
                                                             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 

  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 
  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:

      For James Wickersham                                      25
      For Charles A. Sulzer                                      3
      For James Wickersham                                      10
      For Charles A. Sulzer                                      6
      For James Wickersham                                       7
      For Charles A. Sulzer                                      3
      For James Wickersham                                      10
      For Charles A. Sulzer                                      3
      For James Wickersbam                                      13
      For Charles A. Sulzer                                      4
      For James Wickersham                                       3
      For Charles A. Sulzer                                      1
      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 
  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, 
  ``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 
  ``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 
  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 

  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 
  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 
  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 
  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 
  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 
                                                             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 
  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 
  ``(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 
                                                             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, 
  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
  \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 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 
  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
  \3\ Third session Sixty-fifth Congress, Journal, p. 123; Record, p. 
  \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 
  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 
  The committee having found the sitting Member duly elected, deemed it 
unnecessary to consider claims that he was entitled to additional 
  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 
  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 
  \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 
  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.
  \1\ Journal, p. 412; Record, p. 7231