[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[Appendix]
[Election Contests, 1917-31]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1273-1555]
 
                               CHAPTER 9
 
                           Election Contests
 
                      ELECTION CONTESTS--APPENDIX


                         DESCHLER'S PRECEDENTS


                       Election Contests, 1917-31


               Sec. 1. Sixty-fifth Congress, 1917-19
               Sec. 2. Sixty-sixth Congress, 1919-21
               Sec. 3. Sixty-seventh Congress, 1921-23
               Sec. 4. Sixty-eighth Congress, 1923-25
               Sec. 5. Sixty-ninth Congress, 1925-27
               Sec. 6. Seventieth Congress, 1927-29
               Sec. 7. Seventy-first Congress, 1929-31


                           INDEX TO APPENDIX

    Abatement of contest
        failure of House to act upon elections committee report
            report in contestee's favor, Sec. 3.5
            report recommending unseating of contestee, Sec. 7.4
        neglect of contestant to take testimony within legal time
            no committee or House disposition, Sec. 6.1
        withdrawal of contestant, Sec. Sec. 5.1, 6.2, 6.3
        withdrawal of contestant presumed where brief not filed, 
                  Sec. 5.3
    Ansorge v Weller (N.Y.), Sec. 4.6
    Answer to notice of contest
        late filing not grounds for unseating contestee, where not 
                  prejudicial to contestant, Sec. 3.4
    Apportionment
        time of decennial reapportionment under Constitution held 
                  discretionary; Member-elect denied seat where state's 
                  representation would otherwise exceed that permitted 
                  by existing law, Sec. 4.4
    Bailey v Walters (Pa.), Sec. 5.4
    Ballot box, custody of
        failure to observe directory state law regulating custody of 
                  ballots held not to void recount where evidence 
                  overcame presumption of tampering, Sec. 5.4
        improper commingling of boxes between precincts after election 
                  as not affecting validity of ballots therein that had 
                  been counted in the official return, Sec. 1.1
        recount denied by committee where ballots improperly preserved 
                  after election, Sec. 3.7
        resolution adopted by House authorizing committee to subpena 
                  election officials, ballots, and ballot boxes, 
                  Sec. Sec. 7.3, 7.4
        temporary loss of boxes rendered ballots not counted in 
                  official return void for lack of proper preservation, 
                  but loss held not grounds for rejection of total 
                  returns, Sec. 1.1
    Ballots (see also Fraud, marking and custody of ballots; Evidence, 
            sufficiency of proof)
        absentee ballots invalid where lack of voter domicile not 
                  proven,  Sec. 3.5
        arrangement and printing
            party designations, allegations of impropriety of, not 
                        sustained, Sec. 5.3
        custody and preservation by local election officials
            absentee ballots not rejected absent fraud where state law 
                        reasonably interpreted not to require 
                        preservation by officials, Sec. 3.5

[[Page 1274]]

            recount not conducted by committee where ballots not 
                        properly preserved after election, Sec. 3.7
            state law regulating custody of ballot box held directory; 
                        where evidence overcame presumption of 
                        tampering, noncompliance held not to void 
                        recount, Sec. 5.4
            state law requiring sealed ballot box held directory; 
                        ballots in unsealed box remained best evidence 
                        and may be recounted by officer appointed to 
                        take testimony, Sec. 1.1
            valid, ballots held to be, where contained in commingled 
                        boxes counted in official returns and verified 
                        by recount, Sec. 1.1
            void, ballots held to be, where contained in mislaid 
                        unsealed boxes not counted in official returns, 
                        Sec. 1.1
        evidence, obtaining ballots as (see also Evidence)
            resolution authorizing committee to subpena disputed 
                        ballots, Sec. 4.6
            resolution authorizing committee to subpena officials and 
                        disputed ballots, Sec. Sec. 2.1, 4.2, 5.4
            resolution authorizing committee to subpena officials, 
                        ballots, and ballot boxes, Sec. Sec. 7.3, 7.4
            resolution in part requiring territory Governor to forward 
                        returns and ballots to House for examination, 
                        Sec. 2.6
        machines, voting, as not conforming to requirements of state 
                  law, Sec. 1.5
        marking by voter
            ballots written by voter, though unavailability of official 
                        ballot was not properly certified by election 
                        officials, held valid, Sec. 1.4
            examination and recount by committee where ballots marked 
                        by someone other than voter, Sec. 5.4
            irregularities in marking for candidates for other offices 
                        held not to be identifying marks prohibited by 
                        law, and ballots held valid where voter intent 
                        clear, Sec. 1.2
            single name written ballots not also marked with ``X'' as 
                        required by mandatory state law voided by 
                        House, overruling majority report, Sec. 1.6
            write-in or sticker votes for contestant properly placed on 
                        ballot but absent the corresponding crossmark 
                        required by state law to be placed opposite 
                        such name, were held valid as voter intent was 
                        clear, Sec. 2.1
        recount, complete, by committee
            denied by committee where no evidence impeached correctness 
                        of official returns in undisputed precincts, 
                        Sec. 5.4
            general election, recount of ballots cast in, to determine 
                        whether deceased predecessor or contestee 
                        seated as result of special election had been 
                        elected, Sec. 2.6
            not ordered by committee where all ballots and ballot boxes 
                        shown improperly preserved, Sec. 3.7
        recount, complete, by official appointed to take testimony
            recount upon stipulation of parties changed official 
                        election result, Sec. 1.1
        recount, complete, by parties
            followed by partial recount by committee of ballots 
                        remaining in dispute, Sec. Sec. 4.2, 4.6
        recount, complete, by state election officials

[[Page 1275]]

            result of recount conducted upon stipulation of parties 
                        held binding on contestant and considered 
                        grounds for denying application for partial 
                        committee recount, Sec. 3.2
        recount, partial, by committee
            absentee ballots of military personnel not recounted where 
                        remaining committee recount would not be 
                        affected, Sec. 2.7
            authorized to be conducted upon adoption by House of 
                        resolution authorizing subpena of officials and 
                        disputed ballots, Sec. 5.4
            authorized to be conducted upon adoption by House of 
                        resolution authorizing subpena of officials, 
                        ballots, and ballot boxes, Sec. Sec. 7.3, 7.4
            conducted as to ballots fraudulently marked by person other 
                        than voter, Sec. 5.4
            conducted as to ballots still disputed after complete 
                        recount by parties, Sec. Sec. 4.2, 4.6
            conducted in all precincts where fraud or irregularities 
                        alleged, Sec. 2.7
            conducted upon adoption by House of resolution authorizing 
                        subpena of officials and disputed ballots, 
                        Sec. 5.4
            conducted where ballot box was improperly preserved but 
                        evidence overcame presumption of tampering, 
                        Sec. 5.4
            denied by committee after parties conducted complete 
                        recount and stipulated that results would not 
                        be changed, Sec. 5.2
            denied by committee, as only a complete recount should be 
                        ordered where some error in official returns is 
                        shown, Sec. 3.7
            denied by committee where complete recount conducted by 
                        state election officials was held binding on 
                        parties, where results would not be changed, 
                        and where fraud was not proven, Sec. 3.2
            denied by committee where contestant delayed submission of 
                        evidence and offered insufficient proof of 
                        allegations of fraud and irregularities to 
                        change election results, Sec. 4.7
            denied by committee where contestant did not prove that 
                        results would be changed by counting ballots 
                        wrongfully rejected by election officials, 
                        Sec. 6.5
            motion, recount conducted on, after House had authorized 
                        subpena of ballots, Sec. 7.3
            secondary evidence used where ballots not available as best 
                        evidence, Sec. 2.4
            tie, recount conducted after separate recounts by parties 
                        resulted in, Sec. 1.2
            write-in and sticker votes disputed at state recount or 
                        during taking of evidence, recount of, upon 
                        adoption of resolution authorizing subpena of 
                        officials and disputed ballots, Sec. 2.1
            recount, partial, by official appointed to take testimony
            followed by partial committee recount of ballots remaining 
                        in dispute, Sec. 5.4
            insufficient evidence, considered to be, where the election 
                        result was not changed, Sec. 3.8
        recount, partial, by parties
            tie, separate recounts resulting in, followed by committee 
                        recount, Sec. 1.2
        recount, partial, by state election officials
            denied for want of state law authority, Sec. 5.4
            error in official returns, recount conducted upon 
                        stipulation of parties as disclosing, Sec. 1.1
        secrecy of

[[Page 1276]]

            irregularities in marking for candidates for other offices 
                        held not to be identifying marks prohibited by 
                        law, and ballots held valid where voter intent 
                        clear, Sec. 1.2
            violations by election officials of state constitution and 
                        statutes requiring preservation of secrecy of 
                        ballots were held to void ballots cast in 
                        affected precincts, Sec. 3.6
    Beakes v Bacon (Mich.), Sec. 1.1
    Beck, investigation of qualifications of (Pa.), Sec. 6.4
    Bodenstab v Berger (Wis.), Sec. 2.5
    Bogy v Hawes (Mo.), Sec. 3.2
    Bracken, memorial of (Pa.), Sec. 3.1
    Britt v Weaver (N.C.), Sec. 1.6
    Brown v Green (Fla.), Sec. 5.1
    Campbell v Doughton (N.C.), Sec. 3.5
    Carney v Berger (Wis.), Sec. 2.2
    Chandler v Bloom (N.Y.), Sec. 4.2
    Clark v Edwards (Ga.), Sec. 5.3
    Clark v Moore (Ga.), Sec. 4.3
    Clark v White (Kans.), Sec. 6.2
    Cole, claim of, to seat (Tex.), Sec. 4.4
    Contestant
        not entitled to seat upon exclusion of contestee where not 
                  receiving plurality of votes cast, Sec. 2.2
        not entitled to seat upon exclusion of contestee where not 
                  receiving plurality of votes cast, though voters had 
                  notice of contestee's ineligibility, Sec. 2.5
        petitioner (memorialist), unsuccessful candidate receiving 
                  highest number of votes of all candidates not elected 
                  at large, held not entitled to seat upon death of 
                  Member-elect at-large, Sec. 3.1
        standing, lack of, to institute contest where evidence not 
                  forwarded to House within legal time, Sec. 4.5
        standing, lack of, to institute contest where evidence not 
                  taken within legal time (although extensions 
                  stipulated by parties), where delay not excusable, 
                  Sec. 3.8
        unsuccessful candidate in general election not entitled to seat 
                  where ballots cast for contestee with questionable 
                  qualifications are not clearly void, Sec. 7.2
    Contestee
        admission by contestee of fraud sufficient to change results; 
                  contestee unseated, Sec. 7.1
        committee majority finding that contestee had knowledge that 
                  certain relatives were unqualified voters, and that 
                  he sanctioned frauds by party workers, considered 
                  grounds for recommendation of unseating, though such 
                  recommendation was not acted upon by House, Sec. 7.4
        death of, prior to certification; new Delegate-elect 
                  substituted as contestee after his election to fill 
                  vacancy, Sec. 2.6
        unethical actions by counsel for, held not attributable to, 
                  Sec. 4.7
    Corrupt Practices Act, Federal
        alleged violations by candidate during primary election held 
                  insufficient, based on advisory opinion of Attorney 
                  General construing Supreme Court opinion holding act 
                  invalid with respect to nominations, Sec. 3.4

[[Page 1277]]

        limitation on expenditures by candidate-resolution proposing 
                  special investigation of seated Member's expenditures 
                  reported adversely by elections committee and laid on 
                  table by House, Sec. 4.1
        limitations on contributions to candidate, violation by 
                  contestee's committee of, held grounds for unseating 
                  contestee, Sec. 2.7
        timely filing of statements of receipts and expenditures in 
                  general election, provisions requiring, held 
                  directory; noncompliance held not grounds for 
                  unseating contestee where attempted compliance shown, 
                  Sec. 3.4
        unethical campaign practices held not prejudicial to contestant 
                  where committed against another candidate and not 
                  attributable to contestee, Sec. 3.5
    Davenport v Chandler (Okla.), Sec. 1.3
    Decisions by the House (see also Qualifications of Member; 
            Elections committee, investigations by, Abatement of 
            contest)
        generally
            candidate elected to seat in excess of state seat 
                        entitlement in House held not entitled to seat, 
                        Sec. 4.4
            discharge of elections committee from further consideration 
                        of contest, as per committee's reported 
                        recommendation, where contestant guilty of 
                        laches in offering evidence and where evidence 
                        was insufficient to justify recount of disputed 
                        ballots, Sec. 4.7
            Member-elect permitted to be sworn pending election 
                        committee determination of final right based on 
                        inhabitancy qualification, Sec. 6.4
            memorialist receiving most votes of those candidates not 
                        elected at-large held not elected as 
                        Representative at-large where Member-elect had 
                        died prior to certification, Sec. 3.1
        recommendations of elections committee adopted by House
            report for contestee (or seated Member), who was held 
                        entitled to seat by House, Sec. Sec. 1.2, 1.3, 
                        1.5, 2.4, 3.2-3.4, 3.7-3.9, 4.3, 4.5, 4.6, 5.1-
                        5.4, 6.2 6.5, 7.2, 7.3, 7.5
            report of majority for contestant, who was seated, 
                        Sec. Sec. 2.1, 2.6, 3.6
            report, unanimous, for contestant, who was seated, 
                        Sec. Sec. 1.1 1.4, 2.7, 7.1
            resolution providing for referral to select committee of 
                        question of final right of Member to seat 
                        reported adversely by elections committee, and 
                        laid on table by House, Member retaining seat, 
                        Sec. 4.1
            seated Member held entitled to retain seat, Sec. 2.3
        recommendations of elections committee rejected by House
            majority report for contestant rejecting precinct returns 
                        for violation of mandatory state law and for 
                        officials' fraud, overruled by House, which 
                        adopted minority report validating returns 
                        where election officials acted under color of 
                        authority and where fraud not proven by 
                        contestant, Sec. 4.2
            majority report for contestee overruled by House seating of 
                        contestant, Sec. 1.6
        vacancy, declaration of (see also Vacancy)
            death of Member-elect at-large prior to certification; 
                        unsuccessful candidate receiving most votes of 
                        all candidates not elected at-large held not 
                        entitled to seat, and seat therefore declared 
                        vacant, Sec. 3.1
            incidents of persons fraudulently claiming domicile in 
                        certain precincts were held sufficient grounds 
                        for rejection of entire returns from such 
                        precincts, though insufficient to justify 
                        declaration of vacancy, Sec. 2.1
            seat declared vacant upon exclusion of contestee and upon 
                        declaration that contestant as unsuccessful 
                        candidate was not entitled to seat, Sec. 2.2

[[Page 1278]]

    Elections committee (Committee on House Administration)
        investigations by
            House adopted privileged resolution authorizing subpoena of 
                        returns and election officials, Sec. 7.1
            House adopted resolution authorizing subpoena of election 
                        officials, ballots, and ballot boxes, 
                        Sec. Sec. 7.3, 7.4
            House adopted resolution reported by elections committee 
                        authorizing subpoena of election officials and 
                        disputed ballots by that committee, 
                        Sec. Sec. 4.6, 5.4
            inhabitancy qualification of Member-elect, investigation 
                        of, instituted by resolution referring question 
                        of Member's final right to seat to the 
                        committee, Sec. 6.4
        procedures of
            established categories of disputed ballots, Sec. 4.6
            filing of brief after legal time with consent of contestee 
                        permitted, Sec. 6.5
        reports of (see also Decisions of the House)
            adverse--of resolution proposing special committee 
                        investigation of alleged violation of Corrupt 
                        Practices Act by Member, Sec. 4.1
            committee members split on legal bases for unanimous 
                        recommendation that seven-year citizenship 
                        requirement was fulfilled by woman Member-
                        elect, Sec. 7.2
            findings of other elections committees in contests 
                        considered concurrently were incorporated by 
                        reference, Sec. 3.9
            instance of summary disposition of resolution without 
                        accompanying printed report, Sec. 1.3
            majority recommendation that contestee be unseated was not 
                        accompanied by a resolution, Sec. 7.4
            minority recommended resolution that contestant be held not 
                        entitled to seat and that contestee retain 
                        seat, Sec. 7.4
            minority views against validity of majority report, 
                        Sec. 7.4
            point of order that report not authorized, due to 
                        inconsistent actions taken in committee, was 
                        reserved, Sec. 7.4
            point of order that report not timely filed was reserved, 
                        Sec. 7.4
            summary report recommending the unseating of contestee and 
                        seating of contestant did not detail the 
                        election official frauds conceded by contestee 
                        to have prevented contestant's election where 
                        such facts were undisputed and were available 
                        in committee records, Sec. 7.1
            time for filing extended by House, Sec. 7.5
    Election laws: federal (see also Corrupt Practices Act)
        governing contested elections
            statute requiring submission of evidence within certain 
                        period held mandatory as to parties who could 
                        not stipulate to extensions, Sec. 4.7
        mandatory or directory; precedence over state action
            held to invalidate territory legislature act repealing 
                        precinct residence requirement of federal 
                        organic law, Sec. 2.6
            setting time for opening and closing polls in territory 
                        held mandatory, Sec. 2.6
            statute requiring submission of evidence within certain 
                        period held mandatory as to parties who could 
                        not stipulate to extensions, Sec. 4.7
            U.S. constitutional provision requiring decennial 
                        reapportionment by Congress held discretionary 
                        as to time of enactment, and to preclude House 
                        from itself increasing total membership; and 
                        thereby to deny Member-elect with regular 
                        credentials a seat in excess of state 
                        entitlement under existing law, Sec. 4.4

[[Page 1279]]

            where organic law required notice before changing polling 
                        places in territory, violation by election 
                        officials' order held to void returns from 
                        precinct, Sec. 2.6
    Election laws: state
        directory or mandatory
            construed by election officials to deny them authority to 
                        conduct partial recount, Sec. 5.4
            prescribing ballot form and permitting written ballots when 
                        official formsunavailable held directory, 
                        Sec. 1.4
            regulating custody of ballot boxes held directory, Sec. 5.4
            regulating custody of ballot boxes held directory and not 
                        to prevent recount of ballots therein, where 
                        evidence overcame presumption of tampering, 
                        Sec. 5.4
            requiring registration numbers on ballots held mandatory, 
                        but rejection of returns mooted as result not 
                        changed by such violation, Sec. 2.4
            requiring sealing of ballot boxes held directory, Sec. 1.1
            requiring ``X'' marking of ballots containing single 
                        written name held mandatory by House, Sec. 1.6
            state constitutional requirement of unassisted handwritten 
                        application for registration held mandatory, 
                        Sec. 3.6
            state law requiring bipartisan judges, prohibiting 
                        assistance to voters and requiring proper 
                        custody of ballots held mandatory, Sec. 3.6
            state law requiring rejection of ballots not signed by 
                        election officials held not binding on House 
                        where voter intent clear, Sec. 6.5
        interpretation and applicability of
            allegation that statute requiring numbering of ballots 
                        violated state constitution was considered by 
                        an elections committee, Sec. 2.4
            allegation that statutes governing balloting by machines 
                        violated state constitution was not considered 
                        by an elections committee where basic issues 
                        involved policy questions determinable by state 
                        legislature and courts, Sec. 1.5
            construed by election officials to deny them authority to 
                        conduct partial recount, Sec. 5.4
            state law requiring rejection of ballots not signed by 
                        election officials held not binding on House 
                        where voter intent clear, Sec. 6.5
        poll tax and literacy requirement of state constitution
            general failure to observe statutory requirements by 
                        election and party officials censured but held 
                        not to void election, absent fraud, where 
                        election result not affected, Sec. 3.5
    Evidence
        best evidence
            ballots are, and testimony of witness making tally at 
                        partial recount conducted by official appointed 
                        to take testimony is inadmissible where ballots 
                        are not offered in evidence before the 
                        committee, Sec. 3.7
            ballots in unsealed boxes remain, and may be counted absent 
                        evidence of tampering, Sec. 1.1
        burden of proof on contestant to show voters unqualified, 
                  Sec. 2.7
        ex parte evidence taken by contestant held inadmissible, 
                  Sec. Sec. 2.6, 3.2
        prima facie evidence, official returns are, of correctness of 
                  election. Sec. 3.7
        sufficiency of proof
            allegations by both parties of fraud not sustained, 
                        Sec. 6.5
            alphabetical listing of names in poll books established 
                        fraud by election officials, Sec. 2.7

[[Page 1280]]

            ballots cast by Indians validated upon failure to show 
                        specific voters not qualified, Sec. 1.4
            committee minority findings that contestant had proven 
                        voter disqualification irregularities 
                        sufficient to change election results were 
                        accepted by House despite committee majority 
                        findings of insufficiency, Sec. 1.6
            contestant failed to support allegations of fraudulent and 
                        irregular partisan registration activities, 
                        Sec. 3.3
            contestant failed to support allegations of registration 
                        and voting frauds, Sec. 3.2
            contestant failed to support allegations where proffered 
                        recount conducted by official taking testimony 
                        did not change results, Sec. 3.8
            contestant failed to sustain allegations of fraud and 
                        conspiracy to defraud by election officials, 
                        Sec. 5.2
            contestant failed to sustain allegations of fraud and 
                        irregularities sufficient to change election 
                        results by showing disputed ballots irregularly 
                        marked by voters; partial recount therefore 
                        denied, Sec. 4.7
            contestant failed to sustain allegations of fraud by 
                        election officials, Sec. 4.3
            contestant's allegations of fraud and irregularities in 
                        machine balloting not sustained where basic 
                        issues involved questions of state law policy 
                        determinable by state legislature and courts, 
                        Sec. 1.5
            evidence of fraudulent marking of ballots after cast held 
                        insufficient where an insignificant number of 
                        ballots were challenged, Sec. 3.9
        time for taking
            contest abated where contestant failed to take within legal 
                        time, Sec. 6.1
            extension of, denied by committee where delay not 
                        excusable, Sec. 5.2
            House authorized extension, where contestee's death 
                        prevented timely taking, Sec. 2.6
            not forwarded to House by designated official within legal 
                        time, contestant held without standing to 
                        institute contest, Sec. 4.5
            not taken by contestant within legal time, held to 
                        discharge elections committee from contest, 
                        though parties agreed to extensions, where 
                        delay not excusable and where law and committee 
                        rules violated, Sec. 4.7
            not taken by contestant within legal time held inadmissible 
                        though parties stipulated to extensions, where 
                        delay not excusable, Sec. 3.8
            not taken by contestant within legal time inadmissible 
                        where extension not sought and parties' 
                        stipulations not binding on House, Sec. 3.7
    Expenses of contest
        denied to contestant by elections committee, Sec. 5.3
        elections committee has discretion in awarding, Sec. 6.2
    Farr v McLane (Pa.), Sec. 2.7
    Frank v LaGuardia (N.Y.), Sec. 4.7
    Fraud (see also Evidence, sufficiency of proof)
        by contestee
            improper preservation and counting of ballots by election 
                        officials and party workers and sanction 
                        thereof by contestee, and knowledge of 
                        contestee that certain voters were unqualified, 
                        considered grounds by committee majority for 
                        recommendation that contestee be unseated, 
                        where frauds were sufficient to change election 
                        results; no House disposition. Sec. 7.4
        by election officials
            ballots marked by officials or east by nonqualified voters 
                        upon inducement of election officials, 
                        invalidated, Sec. 2.7

[[Page 1281]]

            contestant's allegation of fraudulent remarking of small 
                        number of cast ballots did not show sufficient 
                        official corruption for rejection of entire 
                        returns, Sec. 3.9
            contestant's allegations of conspiracies, of destruction of 
                        ballots, and of acts by unqualified officials 
                        not substantiated, Sec. 4.3
            improper preservation and counting of ballots by election 
                        officials and party workers and sanction 
                        thereof by contestee, and knowledge of 
                        contestee that certain voters were unqualified, 
                        considered grounds by committee majority for 
                        recommendation that contestee be unseated, 
                        where sufficient to change election results; no 
                        House disposition, Sec. 7.4
            in precincts where one-third of voters were fictitiously 
                        registered, where other illegal acts were 
                        committed by party workers for contestee, and 
                        where contestee failed to prove that remaining 
                        qualified voters therein had voted for him, 
                        resulted in total rather than proportional 
                        rejection of returns, as elections committee 
                        considered the frauds more prevalent than those 
                        proven, Sec. 2.1
            instance where unfair counting and forgery practices 
                        sufficient to change the election result were 
                        needed by contestee, who was unseated and 
                        contestant seated, Sec. 7.1
            majority finding of fraud in casting, counting, and custody 
                        of ballots and of intimidation at polls, 
                        overruled by House where allegations were not 
                        proven by contestant, Sec. 4.2
            not proven by contestant's receiving fewer ballots than 
                        candidates of his party for other offices, 
                        Sec. 3.2
        conspiracy to defraud
            contestant's allegations of conspiracies, destruction of 
                        ballots, and acts by unqualified officials not 
                        substantiated, Sec. 4.3
            not proven by evidence of election official's inefficiency 
                        in respect of timely opening of polls, Sec. 3.5
        marking and custody of ballots (see also Evidence, sufficiency 
                  of; Ballots, marking of by voter)
            ballots marked by election officials or by unqualified 
                        voters upon inducement of officials held 
                        invalid, Sec. 2.7
            ballots were examined and recounted by committee where 
                        marked by person other than the voter, Sec. 5.4
            contestant's allegation of fraudulent remarking of small 
                        number of ballots already cast did not show 
                        sufficient official corruption to justify 
                        rejection of entire returns, Sec. 3.9
    Gartenstein v Sabath (Ill.), Sec. 3.7
    Gerling v Dunn (N.Y.), Sec. 1.5
    Golombiewski v Rainey (Ill.), Sec. 3.9
    Gorman v Buckley (Ill.), Sec. 4.5
    Hill v Palmisano (Md.), Sec. 7.4
    Hubbard v LaGuardia (N.Y.), Sec. 6.3
    Kennamer v Rainey (Ala.), Sec. 3.3
    Lawrence v Milligan (Mo.), Sec. 7.3
    Lawson v Owen (Fla.), Sec. 7.2
    Miller, eligibility of (Ill.), Sec. 4.1
    Notice of contest
        sufficiency of

[[Page 1282]]

            lack of particular specifications did not prevent decision 
                        by committee on merits, Sec. 1.5
        time and manner of serving
            not served upon contestee within legal time, held grounds 
                        for dismissal of contest, Sec. 6.2
            where not served in required time and delay not excusable, 
                        contestant enjoined by federal court from 
                        proceeding with contest, and petition denied by 
                        committee, Sec. 2.3
    Officials of elections
        irregularities by (see also Registration; Fraud)
            alteration of tally sheets to correct error, absent fraud, 
                        held no grounds for rejection of returns, 
                        Sec. 2.4
            assisting voters at registration and at polls, and failure 
                        to maintain proper custody and secrecy of 
                        ballots, held violative of mandatory state law, 
                        Sec. 3.6
            committee majority recommended partial rejection of returns 
                        on grounds of election official fraud and 
                        irregularities sufficient to change results; no 
                        House disposition, Sec. 7.4
            failure to certify unavailability of official ballots held 
                        not to invalidate written ballots under 
                        directory state law, Sec. 1.4
            in counting ballots, resulted in separate recounts by 
                        parties and then in partial committee recount, 
                        Sec. 1.2
            permitting unregistered voters to east ballots held not to 
                        have materially affected election result, 
                        Sec. 3.3
        relation of oath and qualifications to acts of
            returns not rejected by House where improperly qualified or 
                        unsworn officials acted under color of 
                        authority, Sec. 4.2
    Parillo v Kunz (III.), Sec. 3.8
    Paul v Harrison (Va.), Sec. 3.6
    Pleadings (see also Elections committee, procedures of)
        failure of contestant to file brief presumed a withdrawal of 
                  contest, Sec. 5.3
        filing of brief by contestant after legal time with consent of 
                  contestee permitted by committee, Sec. 6.5
        noncompliance with committee rule requiring filing of pertinent 
                  evidence with brief and contestant's refusal to 
                  attend hearings held grounds for dismissal, Sec. 3.9
        questions raised in, were mooted by committee recount, Sec. 1.2
        though committee rule requiring filing of abstract of evidence 
                  with brief not complied with by contestant, committee 
                  considered merits, Sec. 3.2
    Qualifications of Member
        citizenship qualification
            majority of elections committee considered years of 
                        citizenship requirement to be cumulative; 
                        remaining Members construed ``Cable Act'' to 
                        reestablish contestee's consecutive 
                        citizenship, Sec. 7.2
            seven-year U.S. citizenship requirement, of woman Member-
                        elect who had forfeited citizenship by marriage 
                        to alien and who had then been naturalized less 
                        than seven years before election, held 
                        fulfilled, Sec. 7.2
        inhabitancy in state when elected
            requirement held fulfilled where Member maintained 
                        ``ideal'' or intended residence when elected, 
                        as evidenced by voting and tax payments, though 
                        actual residence was in another jurisdiction, 
                        Sec. 7.5

[[Page 1283]]

            requirement held satisfied where Member lived in leased 
                        apartment in state for part of each week and 
                        belonged to ``body politic'' of state, though 
                        owning residences in other jurisdictions, 
                        Sec. 6.4
        loyalty
            elections committee concurred in House finding of 
                        disqualification of Member-elect, elected to 
                        fill vacancy caused by his initial exclusion, 
                        for having given aid or comfort to enemy, 
                        Sec. 2.5
            elections committee concurred in special committee findings 
                        of disqualification of Member-elect for having 
                        given aid or comfort to U.S. enemy, Sec. 2.2
    Rainey v Shaw (Ill.), Sec. 3.4
    Recount, see Ballots
    Reeves, memorial (Mo.), Sec. 2.3
    Registration
        ballots cast by transient voters not properly registered in new 
                  precincts held invalid, Sec. 4.2
        contestant not prejudiced by denial of access to registration 
                  books by election officials, Sec. 3.5
        contestant not prejudiced where officials registered voters of 
                  contestee's party in addition to mandatory bipartisan 
                  registration, where such partiality was permitted by 
                  state law, Sec. 3.5
        contestant's allegations of illegal partisan registration 
                  practices by officials of contestee's party held not 
                  to have materially affected election result, Sec. 3.3
        numerous incidents of merchants' and municipal employees' 
                  fraudulently claiming domicile to participate in 
                  local elections were held sufficient grounds for 
                  rejection of entire returns in certain precincts, 
                  though insufficient to justify declaration of 
                  vacancy, Sec. 2.1
        state constitution requiring unassisted handwritten 
                  applications by voters, held mandatory, voiding 
                  ballots cast by voters not so registered but not 
                  voiding ballots of voters filing defective unassisted 
                  written ballots supported by oral examination under 
                  oath, Sec. 3.6
        where committee divided on question of sufficiency of proof of 
                  registration, ballots allegedly cast by unregistered 
                  voters were not voided where election result not 
                  changed, Sec. 5.4
    Returns (see also Ballots, generally)
        in general
            prima facie evidence of correctness of returns only 
                        overcome by recount of all ballots as best 
                        evidence, Sec. 3.7
            recount of ballots denied where no evidence offered to 
                        overcome presumption of correctness in 
                        undisputed precincts, Sec. 5.4
        custody of, taken by House
            House adopted privileged resolution authorizing committee 
                        to subpena returns and election officials, 
                        Sec. 7.1
        not rejected
            by House where election officials acted under color of 
                        authority and where contestant did not sustain 
                        allegations of fraud, thereby overruling 
                        majority committee report, Sec. 4.2
            where contestant's evidence of fraudulent markings of 
                        ballots was held insufficient, Sec. 3.9
            where election officials altered tally sheets to correct 
                        errors, absent fraud, Sec. 2.4
            where election officials were negligent in signing 
                        certificates, Sec. 2.6

[[Page 1284]]

            where one ballot box not properly preserved, Sec. 1.1
            where polls remained open after legal time, absent fraud, 
                        Sec. 2.7
        rejection of (entire or partial)
            ballots cast by aliens who would not testify for which 
                        candidate they had voted were invalidated by 
                        the proportional deduction method, Sec. 5.4
            based on recount by official appointed to receive 
                        testimony, confirmed by committee, Sec. 1.1
            based on recount by parties, accepted by committee,  
                        Sec. 1.1
            by proportional deduction method, where nonregistered 
                        voters cast unidentified ballots absent 
                        official fraud, Sec. 2.7
            by proportional deduction method, where not determinable 
                        for whom invalid ballots were cast, 
                        Sec. Sec. 1.4, 2.6, 2.7, 5.4
            entire precincts rather than by proportional deduction 
                        where one-third of voters were fraudulently 
                        registered, where additional frauds were 
                        suggested, where contestee failed to prove that 
                        remaining valid votes had been cast for him, 
                        and where illegal votes were not cast pro rata 
                        between parties, Sec. 2.1
            entire precincts, rejection in, where election officials' 
                        fraud or irregularities violated mandatory 
                        state registration law; by proportional 
                        deduction in other precincts where not 
                        determinable for whom illegal votes cast; or to 
                        extent of proven illegal votes, Sec. 3.6
            entire precincts, rejection in, where official misconduct 
                        and unqualified voters proven, Sec. 2.7
            from precincts in territory where organic law setting time 
                        for opening and closing polls was violated, 
                        Sec. 2.6
            from precincts where polling places were improperly 
                        changed, Sec. 2.6
            recommended by committee majority on grounds of fraud and 
                        irregularities by election officials and party 
                        workers sufficient to change results and fraud 
                        (insufficient to change results) by contestee, 
                        Sec. 7.4
            where ballots cast without registration numbers as required 
                        by mandatory state law, question moot as not 
                        changing total result, Sec. 2.4
            where ballots marked by election officials, Sec. 2.7
            where ballots were cast by various types of unqualified 
                        voters, Sec. 2.7
            where polling places illegally changed, Sec. 2.7
            where voters cast more than one ballot, Sec. 2.7
        tally sheets
            altered to correct errors by election officials, absent 
                        fraud, held not grounds for rejection of 
                        returns, Sec. 2.4
    Salts v Major (Mo.), Sec. 2.4
    Sirovich v Perlman (N.Y.), Sec. 5.2
    Steele v Scott (Iowa), Sec. 1.2
    Suffrage (see also Registration)
        Indians
            born in territory and severed from tribe, permitted to vote 
                        as citizens, Sec. Sec. 1.4, 2.6
        military
            ballots cast by personnel involuntarily stationed in 
                        territory, rejected, Sec. Sec. 1.4, 2.6
        noncitizens
            ballots cast by aliens who refused to testify for which 
                        candidate they had voted were invalidated by 
                        proportional deduction method, Sec. 5.4

[[Page 1285]]

            ballots cast by women citizens married to aliens prior to 
                        passage of ``Cable Act'' held void based on 
                        Supreme Court decision upholding loss of 
                        citizenship as the result of such marriage 
                        prior to passage of the act, Sec. 5.4
        nonresidents
            ballots cast by nonresidents of precinct or territory were 
                        rejected, Sec. Sec. 1.4, 2.6
        poll tax
            ballots cast by voters not paying were rejected, Sec. 3.6
        poll tax and literacy requirement of state constitution
            general failure to observe state requirements by election 
                        and party officials condemned but held not to 
                        void election, absent fraud, where election 
                        result not changed, Sec. 3.5
        right of, generally
            held not denied by election officials, Sec. 3.3
        women voters
            ballots cast by women citizens married to aliens prior to 
                        passage of ``Cable Act'' held void based on 
                        Supreme Court decision upholding loss of 
                        citizenship as result of such marriage prior to 
                        passage of act,  Sec. 5.4
            not denied right to register or vote by conspiracy of state 
                        legislature, Sec. 3.3
    Tague v Fitzgerald (Mass.), Sec. 2.1
    Taylor v England (W. Va.), Sec. 6.5
    Updike v Ludlow (Ind.), Sec. 7.5
    Vacancies (see also Decisions of the House)
        death of contestee prior to certification, territory Governor 
                  called special election to fill vacancy caused by; 
                  new Delegate-elect seated but finally unseated when 
                  House determined that deceased predecessor had not 
                  been elected at general election, Sec. 2.6
        death of Member-elect at-large prior to certification; 
                  unsuccessful candidate receiving most votes of all 
                  candidates not elected at-large held not entitled to 
                  seat, Sec. 3.1
        declared upon exclusion of contestee and upon declaration that 
                  contestant as unsuccessful candidate was not entitled 
                  to seat, Sec. 2.2
        fraudulent registrations in certain precincts were held grounds 
                  for rejection of entire returns from such precincts, 
                  but insufficient to justify declaration of vacancy, 
                  Sec. 2.1
        special election to fill
            death of contestee prior to certification, territory 
                        Governor called special election to fill 
                        vacancy caused by; new Delegate-elect seated 
                        but finally unseated when determined that 
                        predecessor had not been elected at general 
                        election, Sec. 2.6
    Wefald v Selvig (Minn.), Sec. 6.1
    Wickersham v Sulzer (Alaska), Sec. 1.4
    Wickersham v Sulzer and Grigsby (Alaska), Sec. 2.6
    Wurzbach v McCloskey (Tex.), Sec. 7.1


                      ELECTION CONTESTS--APPENDIX


                         DESCHLER'S PRECEDENTS

[[Page 1287]]




                 Sec. 1. Sixty-fifth Congress, 1917-19

Sec. 1.1 Beakes v Bacon, 2d Congressional District of Michigan.

    Ballots.--A partial recount unofficially conducted by local 
election board upon agreement of parties having disclosed error in 
official returns, parties stipulated that notary conduct complete 
recount and conceded new results.
    Returns were partially rejected by the committee on elections based 
on recount by notary.
    Report of Committee on Elections No. 3 submitted by Mr. Walter A. 
Watson, of Virginia, on Oct. 5, 1917, follows:

                             Report No. 194

                Contested Election Case, Beakes v Bacon

    The record in this case is unique in some respects and is in rather 
marked contrast with the generality of election cases.
    First. No unworthy motive is ascribed to the principals concerned, 
and intentional wrong is not shown to have been done by any of the 
officials charged with the conduct of the election.
    Second. There is little or no conflict of evidence respecting the 
material facts in issue, and the only question for decision is one of 
law and justice as applied to a conceded state of facts.
    Third. While the controversy originally embraced the canvass and 
counting of over 50,000 ballots cast in the election, in the end the 
issue is narrowed to the proper disposition of the returns from only 
two precincts.
    When it is recalled with what partisan bias contests of this sort 
have sometimes been wont to be waged in the past, and how frequently 
your body has had to deal with records of mutual reproach and even 
crime, the committee deems itself fortunate to be able to say, at the 
outset, that this contest has, on the whole, been conducted with 
admirable spirit, and with the desire to elucidate the real merits of 
the case. Where the electors were so numerous and the ballot 
complicated, mistakes and irregularities were inevitable and to be 
anticipated; but the irregularities shown here are mostly formal, and 
in the aggregate the mistakes comparatively few.

                         how the contest arose

    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

[[Page 1288]]

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 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. . . . Apparently 
the State law made no provision for such a proceeding in case of a 
Federal office; but, by agreement of counsel, the ballot boxes were 
produced by the clerk before a notary and in this way, first and last, 
the vote of practically the entire district was recounted--three 
precincts at the instance of contestant and the rest on behalf of the 
contestee. This agreement was productive of highly satisfactory 
results, and has spared your committee an immense amount of difficult 
and tedious labor.
    The sum of the respective concessions stands therefore as follows:

Votes conceded to Beakes.......................................  26, 530
Votes conceded to Bacon........................................  26, 484
                                                                --------
        Majority for Beakes....................................       46
------------------------------------------------------------------------

    The foregoing figures cover the entire congressional district 
except the returns from two precincts--first precinct, second ward, and 
second precinct,

[[Page 1289]]

sixth ward, Jackson city--and they present the only subjects of dispute 
left in the record.

                                   I

              first precinct, second ward, of jackson city

    The sole issue raised in regard to this precinct is whether the 
official returns shall stand, or whether they should be corrected in 
accordance with the recount.
    Contestant contends that, as the return is conceded to be 
erroneous, they should be set aside and a recount of the ballots had; 
while contestee insists either that the failure of the election 
officers in the first instance to seal the ballot boxes properly, or 
the failure of the clerk thereafter to keep them in safe custody 
discredited the ballots to such an extent as to make a recount 
unlawful, and hence that the official return must stand.

    So the question is a mixed one of law and fact; but as there is not 
much conflict of evidence respecting the physical facts in the case, 
the question, in the last analysis, is one of law.

                 error in the official returns conceded

    That a mistake of material size was made in compiling the returns 
for Congress at this precinct is obvious from the record, and the fact 
was conceded by everybody who had to deal with the subject in any 
official or representative way.
    The inspectors summoned before the board to see if the error might 
be corrected, all admitted the error, but not being able to agree, 
without a recount of the ballots, upon its precise terms; and the 
board, deeming itself unauthorized to allow a recount, made a separate 
statement in its certificate to the State board, calling special 
attention to the situation of this precinct (Rec., pp. 42-43.)
    The inaccuracy in the return being conceded by everybody, the only 
question remaining is whether the ballots in controversy had been so 
preserved as to justify the recount subsequently made by counsel for 
both sides, February 22, 1917, before the notary, the result of which 
is not disputed. (Rec., p. 23.)

    Ballots remain best evidence and may be recounted where no evidence 
of tampering with unsealed ballot boxes was found, as State law 
prescribing sealing of ballot boxes was held directory and not 
mandatory.
    Ballots, in ballot boxes improperly commingled between two 
precincts but counted in the official return, verified that return and 
were held valid; those in box temporarily misplaced and therefore not 
included in the official return were conceded void as not properly 
preserved, but held insufficient grounds for rejection of entire 
official returns.
    Report for contestant, who was seated. Contestee unseated.

[[Page 1290]]

                sealing and custody of the ballot boxes

    The only complaint raised on this head relates to the manner in 
which the boxes were sealed by the inspectors and the custody bestowed 
upon them by the clerk after they were delivered to his office.
    The Michigan statute pertaining to the subject is:

         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 regulating the sealing of the ballot 
box is mandatory or merely directory, there is nothing in the statute 
to determine.
    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. Upon that proposition, said the Supreme 
Court of Kansas in the great ease of Guileland v. Schuyler (1 Kan., 
569), ``hangs our experiment in self-government.''
    The real question to be answered in this ease 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.
    From the standpoint of precedent, also, we reach the same 
conclusions. On several occasions the House of Representatives has 
found it necessary, in the interest of justice, to set aside official 
returns and resort to a recount of the ballots.
    In the Indiana ease of English v. Peele, in the Forty-eighth 
Congress, an unofficial recount of the ballots was accepted in lieu of 
the official return for the vote of a whole county; and in the Iowa 
case of Frederick v. Wilson, of the same Congress, a recount was 
permitted to supersede the official returns from 10 different election 
precincts.
    Having fully considered, as we think, the legal principles 
applicable to such cases, we may turn now to the facts of this case as 
disclosed by the record.

[[Page 1291]]

  Facts concerning the sealing and custody of the ballot boxes at the 
                       first precinct, sixth ward

    It is conceded that when the inspectors finished their work at the 
election and deposited the ballots in the boxes they locked them 
properly and sealed them in some manner; that they were delivered to 
the patrol wagon accompanied by two of the inspectors and delivered 
promptly by them to the city clerk at his office; that they were placed 
along with the boxes from other precincts, as they came in, in the 
outer office or lobby of the clerk's office in front of the clerk's 
desk through which the public passed during office hours, and where 
they remained until the next day, until stored away for final keeping 
in another room under lock and key; that when produced by the clerk 
before the county board of canvassers on November 23, 1916, and again 
before the notary on February 22, 1917, they were properly locked, and 
sealed over the openings left in the tops for the reception of the 
ballots, but not sealed otherwise; that they could not be opened or 
their contents removed without being unlocked, but being unlocked they 
could be opened without breaking any seal; that the total number of 
ballots in the box corresponded with the number called for by the poll 
book, and they were all regularly initialed by the inspectors; and that 
the unused ballots returned therewith were regularly numbered from 704 
(inclusive) upward.
    In addition to the facts conceded, the clerk testified that the key 
was delivered to him at the same time as the boxes, and that key and 
boxes had remained continuously in his possession ever since, except 
when before the county board and notary, and that he felt sure they had 
been tampered with in no way. (Rec., 14-15 and 74-75.)
    Contestee's brief asserts that there is evidence in the record to 
show that the boxes, when they left the polling place, were probably 
sealed over the locks, and advances the theory that these seals were 
broken after the boxes reached the clerk's office, and hence draws the 
inference that the ballots had been tampered with. 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.
    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; they

[[Page 1292]]

found Bacon had received 352 votes and Beakes 320. We think that 
recount should stand in place of the original return as the true vote 
of the first precinct, second ward, city of Jackson.

                                   II

              second precinct, sixth ward, city of jackson

    By official return the total number of electors at this precinct 
were 577, and the vote for Congress was:

Bacon..........................................................      211
Beakes.........................................................      329
------------------------------------------------------------------------

    The evidence shows a chapter of accidents at this and the third 
precinct in the same ward, which resulted in the admixture of the 
ballots of the two precincts in well nigh hopeless confusion, and 
ultimately created a situation very hard to entangle. It will, 
therefore, be necessary for a while to consider the returns from these 
precincts together.
    By the returns the electors at the third precinct were 247, and the 
vote for Congress:

Bacon..........................................................       93
Beakes.........................................................      138
------------------------------------------------------------------------

    There were no irregularities in the conduct of the election at 
either of these places, nor in the count and canvass of the vote, nor 
in the sealing and delivery of the ballot boxes (with one exception to 
be noted presently). No trouble of any kind was experienced with these 
returns until the attempt was made by the contestee to recount the 
vote, when great confusion ensued. The trouble arose over an 
unintentional mixing of the ballot boxes of the two precincts at the 
time of the election. It must have happened in this way, as was shown 
by subsequent events:
    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 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.

[[Page 1293]]

                           attempted recount

    So when contestee reached these returns in the prosecution of his 
recount on March 28, 1917, when the second precinct was called for, the 
clerk, not knowing of the mixing of the boxes on election day, produced 
three boxes labeled with the precinct number, one of them being the box 
he had found open in the polling booth. The place and condition in 
which this box was found being made known, it was agreed by counsel for 
both sides that it would be improper to recount the ballots of this 
precinct as all of them had not been preserved as required by law. 
(Rec. 169-170.)
    A recount was actually made, however, with results widely differing 
from the official returns from the precinct.
    The third precinct being called for the only box labeled with that 
number was produced, and a recount of its contents disclosed, likewise, 
large variance from the official return. (Rec., 169-170.)
    On April 30 following contestant entered upon his rebuttal 
testimony, and the inspectors of the two precincts were summoned to 
explain if they could the discrepancy disclosed between these ballots 
and their returns. As the ballots were all regularly marked with the 
initial letters of the inspectors' names, there was no difficulty in 
identifying the precinct in which they were cast; and in this way it 
was discovered that of the 535 ballots recounted on March 28 for second 
precinct returns, only 288 of the number were cast at that poll, and 
that the residue 247 belonged to the second precinct. Likewise it was 
found that the 289 ballots recounted at the same time for the third 
precinct were in fact voted at the second.
    The ballots for each precinct having thus been identified, the 
total number in each was found to correspond with the number called for 
by the official returns. Hence was reconciled the discrepancy between 
the ballots and the returns. (Rec., 91-112 )
    The former recount of the ballots of the two precincts, while they 
were commingled, when combined into one whole showed the following 
results:

Total number of electors by official returns...................      824
Total number of ballots found in boxes.........................      824
Total number of votes for Bacon by official returns............      304
Total number of ballots for Bacon found in boxes...............      303
Total number of votes for Beakes by official returns...........      467
Total number of ballots for Beakes found in boxes..............      467
------------------------------------------------------------------------

                                                  --(Rec., 169-170.)  

    The results, therefore, so far from casting suspicion upon the 
returns, afforded rather confirmation of their accuracy; and, 
incidentally, tended to show that the contents of the box left open in 
the polling place had not been disturbed.

    In addition to these facts the unused ballots, numbered 
consecutively and returned with the ballots from these precincts, were 
found to show in both instances the number next in order to the last 
ballot voted.

[[Page 1294]]

                   precise issue as to this precinct

    Both sides agree that they could not have a lawful recount of that 
portion of the ballots of the second precinct (and being mingled with 
those of other boxes they could not be separately identified) which 
were left in the voting booth after the election. And in that view we 
concur; for, 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. (It will be remembered that 289 of the 
577 ballots cast at the precinct were found in a box labeled ``3rd 
precinct,'' which has been properly cared for and in which the recount 
showed Bacon 172, Beakes 111.)

              legal principles applicable to the question

    The presumption is that officers of the law charged with the duty 
of ascertaining and declaring the result [of an election] have 
discharged that duty faithfully. (McCrary, sec. 459.)
    The rule is that the returns must stand until impeached, i.e., 
until shown to be worthless as evidence, so worthless that the truth 
cannot be deduced from it. (McCrary, sec. 515. Also Loyd v. Sullivan, 9 
Mont. 577; and McDuffie v. Davidson, Mob., 577.)
    The return must stand until such facts are proven as to clearly 
show it is not true. (Idem, sec. 571; Blair v. Barrett, 1 Bart., 308; 
Knox v. Blair, 1 Bart., 521; Washburn v. Voorhees, 2 Bart., 54; State 
v. Comrs., 35 Kans., 640.)
    Upon these principles our courts have acted from the earliest time, 
and in contested-election cases Congress has often had occasion to 
apply them.
    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

[[Page 1295]]

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 formal 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?

               precedents in the house of representatives

    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

[[Page 1296]]

of any other proof of fraud, the Election Committee reported 
unanimously in favor of the return, and the House sustained the report 
without a division. (2 Hinds' Precedents, 21.)
    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 reputation.
    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.

                                 resume

Votes conceded to Beakes (see ante)...................   26,530
Votes awarded Beakes on recount of vote first               320
 precinct, second ward, Jackson (see ante)............
Votes accorded Beakes by official returns, second           329
 precinct, sixth ward, Jackson (see ante).............
                                                       ---------
                                                                  27,179
Votes conceded Bacon (see ante).......................   26,484
Votes accorded Bacon on recount, first precinct,            352
 second ward, Jackson (see ante)......................
Votes accorded Bacon on official returns, second            211
 precinct, sixth ward, Jackson........................
                                                       ---------
                                                                  27,047
                                                                --------
      Majority for Beakes.............................               132
------------------------------------------------------------------------


[[Page 1297]]

                               conclusion

    For the reasons named, though imperfectly stated, your committee 
respectfully recommends to the House 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.

    Privileged resolution (H. Res. 195) agreed to by voice vote after 
brief debate [56 Cong. Rec. 246, 65th Cong. 2d Sess., Dec. 12, 1917; H. 
Jour. 43].

Sec. 1.2 Steele v. Scott, 11th Congressional District of Iowa.

    Ballots.--Separate partial recounts conducted by parties having 
resulted in tie vote, the committee on elections conducted a more 
extensive partial recount of ballots improperly counted by election 
officials.
    Report of Committee on Elections No. 1 submitted by Mr. Riley J. 
Wilson, of Louisiana, on May 22, 1918, follows:

                             Report No. 595

                Contested Election Case, Steele v Scott

    Upon a canvass of the official returns, certified to it by the 
various county canvassing boards of the 13 counties composing the 
eleventh congressional district of Iowa, and the report made by the 
commissioners appointed to take the vote of the Iowa National Guard, 
then on the Texas border, the State Board of Canvassers of the State of 
Iowa found and promulgated the result of the vote cast for Member of 
Congress from that district at the election held November 7, 1916, as 
follows:

------------------------------------------------------------------------
                                                         Scott    Steele
------------------------------------------------------------------------
Official returns......................................   25,947   25,796
National Guard vote cast in Texas.....................      119      139
                                                       -----------------
        Total.........................................   26,066   25,935
                                                       =================
Plurality (40)(1).....................................      131
------------------------------------------------------------------------

    Upon this result the certificate of election was issued to the 
contestee.

[[Page 1298]]

                               testimony

    Upon the issues thus made an officer was appointed and agreed upon 
to receive depositions and take testimony in the State of Iowa.
    The contestant in taking his testimony caused a recount to be made 
of the ballots cast in the second precinct of Sioux City, Woodbury 
County. The contestee also had a recount of the same ballots. The 
recount made on behalf of the contestant at this precinct showed a loss 
for Scott of 111 and a gain for Steele of 108, making a net gain for 
Steele of 219.
    The recount made on behalf of the contestee showed a loss for Scott 
of 107, and a gain for Steele of 98, making a net gain for Steele of 
205.
    The contestant then identified and placed in evidence all the 
official returns in the other and remaining precincts of Woodbury 
County, and also all the official returns as certified by the various 
canvassing boards, including the State board of canvassers, in the 
other 12 counties of the eleventh congressional district, together with 
the official canvass of the votes cast by the Iowa National Guard on 
the Texas border.
    The condition established at this stage of the proceedings which 
marked the close of contestant's testimony in chief, may be stated by 
taking into consideration only contestee's original majority of 131 and 
the result of the recount made on behalf of both parties at the second 
precinct of Sioux City, as follows:

Contestant's recount at second precinct:
    Gain for Steele............................................      219
    Less Scott's original majority.............................      131
                                                                --------
        Majority for Steele....................................       88
                                                                ========
Contestee's recount of second precinct:........................
    Gain for Steele............................................      205
    Less Scott's original majority.............................      131
        Majority for Steele....................................       74
                                                                --------
------------------------------------------------------------------------

    In taking testimony by the contestee a recount was made by both 
contestant and contestee of the ballots in all the remaining precincts 
in Woodbury County and also of each and every precinct in the counties 
of Buena Vista, Clay, Dickinson, and Monona.
    The only very striking change from the official canvass shown by 
this recount was at Nokomis precinct, in Buena Vista County. Here the 
result was, according to contestee's recount, a loss of 44 for Steele 
and a gain of 36 for Scott, making a net gain for Scott of 80 votes. 
According to contestant's recount at the same precinct the result was a 
loss of 47 for Steele and a gain of 27 for Scott, making a net gain for 
Scott of 74 votes.
    The evidence and hearings disclosed that the contestant and 
contestee had made a complete recount of 5 of the 13 counties composing 
the eleventh district, and that no recount had been made by either 
party as to any of the other 8 counties and that each had tabulated the 
result of his recount of

[[Page 1299]]

these 5 counties with the official returns of the remaining 8 counties 
which returns had already been identified and offered as evidence by 
the contestant, and that according to the results thus established the 
contestant claimed a majority in his favor of 94 votes on his recount, 
while the contestee claimed, according to his recount and tabulation in 
the same counties, a majority in his favor of 133 votes.
    In the hearings before your committee the argument of counsel for 
contestant and contestee in respect to the recount centered principally 
around these two precincts. It was admitted on both sides that 
conditions had been shown authorizing a recount at each of these 
precincts, and it was suggested that the committee might settle the 
contest and reach a correct result and satisfactory conclusion by 
taking into consideration these two precincts only.
    A comparison of the results of the recounts made by the contestant 
and contestee at these two precincts will serve to illustrate the very 
difficult and singular position in which your committee found itself in 
that respect. For instance, taking--

Contestant's recount at second precinct, Sioux City, and
 Nokomis Townships:
    Gain for Steele at second precinct.........................      219
    Less Scott's original majority.............................      131
                                                                --------
    Majority for Steele........................................       88
    Deduct Scott's net gain at Nokomis.........................       74
                                                                --------
        Majority for Steele....................................       14
Contestee's recount at second precinct, Sioux City, and Nokomis
 Townships:
    Gain for Steele at second precinct.........................      205
    Less Scott's original majority.............................      131
        Majority for Steele....................................       74
Net gain for Scott at Nokomis..................................       80
Less majority for Steele at second precinct....................       74
        Majority for Scott.....................................        6
Now, taking contestant's recount at Nokomis, where contestee gained, and
 contestee's recount at second precinct, where contestant gained, we
 have the following result:
Original majority for Scott....................................      131
Gain at Nokomis on contestant's recount........................       74
        Majority for Scott.....................................      205
Deduct gain for Steele on contestee's recount of second              205
 precinct......................................................
------------------------------------------------------------------------

    On this latter comparison the vote would be a tie.
    If the entire vote in the district were used in connection with 
these comparisons the result would be the same.
    While, as formerly stated, the result of this recount in the five 
counties referred to indicated no very striking changes except in the 
second precinct of Sioux City, Woodbury County, and Nokomis Precinct in 
Buena Vista

[[Page 1300]]

County, yet in other precincts results were found that showed 
discrepancies from the official returns somewhat unusual. For instance, 
in the twelfth precinct of Sioux City the contestant lost on recount 36 
votes, while in the fourteenth precinct he gained on recount 31 votes. 
These losses and gains were shown by the recount of each of the 
parties, the results being undisputed and in fact conceded by both 
sides. In the recount by the contestant and the contestee of the five 
counties above referred to there were some 72 precincts in which they 
failed to agree as to results, that is, as to the number of votes that 
each had received.

                         work of the committee

    Under the conditions heretofore stated and in view of facts 
admittedly established by the evidence, your committee did not feel 
that it would be proper, fair, or just to settle the result of the 
contest or undertake to do so by recount and consideration only of the 
two precincts where the principal changes were shown in the recount by 
the parties to the contest.
    It is satisfactorily established by the evidence that the unusual 
errors shown to have been made by the precinct election officers in 
counting and returning the votes at a number of precincts in this 
district were due to and occasioned by the careless and loose method 
adopted in counting and canvassing the vote, a method entirely at 
variance with the election laws of the State of Iowa. The Australian 
ballot law, with its most modern provisions, is the law controlling 
elections in that State. It has been amended and perfected so as to 
throw every safeguard around the casting and counting of ballots; but 
the evidence in this case indicates very clearly that these salutary 
provisions were not observed at a number of places in canvassing and 
returning the votes cast at this election. The statement was made 
before this committee that the method of counting ballots, which in its 
opinion has caused the chief difficulties here, has practically become 
a custom at large voting precincts in the State of Iowa, and from which 
it may be concluded that, while the method is illegal and calculated to 
lead to incorrect results and in close elections possibly to thwart the 
will of the majority, no fraud has been intended thereby.
    Section 1138 of the Iowa Code 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.

    There are three judges of election and two clerks at each precinct. 
Under the provisions of this statute the judges should examine each 
ballot and the same should be called to the clerks, whose duty it is to 
keep separately and simultaneously a record of the count. Instead of 
this, and under the method to which we have referred, it appeared that 
after the polls had closed the ballots were separated into lots or 
piles and that one of the judges called

[[Page 1301]]

to one of the clerks from one of the piles of ballots while at the same 
time another of the judges called to the other clerk from another pile 
of ballots. In this way 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 
actually been proven. (See Frederick v. Wilson, Iowa; 48th Cong., 
Mobley, 401.)
    Hence in view of the entire record and evidence, your committee 
concluded that in so far as a recount was concerned, it could not do 
less than examine the returns and ballots at each and all of the 
respective precincts in which there had been disagreement in the 
recount made by the parties to the contest before the special officer 
appointed to take testimony in this case.
    For the purposes of this recount, it was assumed that the 
contestant and contestee had accepted the official canvass in the eight 
counties in which neither had attempted to have a recount during the 
taking of testimony in Iowa. The official returns of each of said 
counties had been adopted in showing the vote and results which each 
claimed to be correct at the close of taking testimony.
    It was evident that in the recount made by the contestant and 
contestee ballots had been rejected pro and con which should have been 
counted, and which under the laws of Iowa, as construed by its supreme 
court, were ballots legally cast.
    A subcommittee was appointed to make this examination and recount. 
The work of this subcommittee involved the examination of some 20,000 
ballots, after which a report in detail was made to the full committee. 
It should be said here that absolute harmony prevailed in this work and 
that the full committee was unanimous in adopting the findings of the 
subcommittee on the facts. The committee recount of the five counties 
which had been recounted by contestant and contestee, when taken and 
tabulated with the official returns of the other eight counties of the 
district and the National Guard vote, showed the following results:

Scott..........................................................   26,033
Steele.........................................................   26,029
        Plurality for Scott....................................        4
------------------------------------------------------------------------

    Ballots irregularly marked by voters for candidates for another 
office but properly marked for Representative did not contain 
distinguishing marks violating secrecy and were held valid, as voter 
intent was clear.
    Pleadings.--Legal questions presented therein were mooted by 
committee recount.

[[Page 1302]]

    Report for contestee, who retained seat.

    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 has 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.
    The rejection of these ballots in the former count appeared to have 
been based upon the belief that the manner of marking the ballots as 
above set out made them subject to the objection that they contained 
identifying marks.
    It would be difficult to find a clearer and more satisfactory 
exposition of the Australian ballot law in respect to questions of this 
character than is contained in the opinion of the Supreme Court of the 
State of Iowa in the cases of Fullarton v. McCaffrey (158 N. W. Rep., 
506) and Kelso v. Wright (110 Iowa, 560). In the former case the court 
said:

         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.

    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

[[Page 1303]]

     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 evidenced 
     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, practically all the disputed 
and -rejected ballots coming under the consideration of the committee 
in its recount, where the voter had indicated his choice for 
Congressman, were accordingly counted and credited.
    Some very interesting legal questions growing out of this contest 
were submitted to us which may be stated as follows:

                    shifting of the burden of proof

    It was contended for the contestant that upon the recount of the 
second precinct of Sioux City and by placing in evidence the official 
returns from the remaining precincts of Woodbury County, the official 
returns from the other counties in the district, together with the 
official count of the National Guard vote, and thus having established 
a majority in favor of the contestant, the burden of proof then shifted 
to the contestee to show by competent evidence a majority in his favor, 
although each and every precinct of the district had been brought in 
question and the correctness of the official count denied in the notice 
of contest; while, on the other hand, it was contended on behalf of the 
contestee that the contestant must make out his case by a recount of 
the entire district, and that since all the ballots had not been 
preserved and transmitted to the House of Representatives it was 
manifest that only a partial recount could be had.

                     apportionment of lost ballots

    It was contended on behalf of the contestee that the committee 
should apportion between him and the contestant in proportion to the 
number of votes each had actually received 39 ballots proven to have 
been lost in Spirit Lake precinct, Center Grove Township, Dickinson 
County, insisting that commit

[[Page 1304]]

tees of Congress had established a rule by which this could be legally 
done and by which contestee would make a net gain of 13 votes.

                            the soldier vote

    Contestee further contended that the law of 1862, as amended in 
1864, under which the vote of the Iowa National Guard on the Texas 
border was taken and counted, had been repealed by the adoption of the 
Iowa Codes of 1873 and 1897. The contestant had 20 majority in the 
National Guard vote.
    These legal questions are exceedingly interesting and were 
presented to the committee with unusual ability, yet in view of the 
facts that the entire record as presented has been considered, waiving 
for the purposes of our investigation the question of the burden of 
proof; that the vote of the Iowa National Guard cast on the Texas 
border has been counted and is included in the committee recount; that 
the 39 lost ballots in Dickinson County were eliminated from 
consideration and not included; and in view of the further fact that 
notwithstanding this there is still a legal majority of the votes found 
to be in favor of the contestee, it therefore becomes unnecessary to 
pass upon these legal questions.
    Your committee, for the reasons herein stated, very respectfully 
recommends to the House of Representatives the adoption of the 
following resolution:
    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.
    Privileged resolution (H. Res. 386) agreed to by voice vote after 
brief debate [56 Cong. Rec. 7354, 65th Cong. 2d Sess., June 4, 1918; H. 
Jour. 425].

Sec. 1.3 Davenport v Chandler, 1st Congressional District of Oklahoma.

    Elections committee report.--Instance of summary disposition of 
resolution reported without accompanying printed report. Seated Member 
retained seat.
    On Jan. 27, 1919, Mr. John N. Tillman, of Arkansas, introduced 
House Resolution 523 which was referred to the Committee on Elections 
No. 2. Then, on Feb. 5, 1919, Mr. Tillman called up the resolution as 
the report of the Committee on Elections No. 2:

    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 herein.
    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 a seat therein.

[[Page 1305]]

    Reported privileged resolution (H. Res. 523) agreed to by voice 
vote without debate [57 Cong. Rec. 2757, 65th Cong. 3d Sess., Feb. 5, 
1919; H. Jour. 152].

Sec. 1.4 Wickersham v Sulzer, Territory of Alaska.

    Ballots held valid where written by voters, though unavailability 
of official ballots had not been certified by election officials as 
required by Territory election law, where evidence showed 
unavailability of official forms and where law placed no penalty of 
voter for negligence of officials.
    Territory election law prescribing form of ballot and permitting 
written ballots upon official certification of unavailability of 
required form was construed as directory, thereby overruling federal 
court order.
    Returns were improperly rejected in a precinct where officials had 
failed to sign one of two duplicate certificates of results.
    Report of Committee on Elections No. 1 submitted by Mr. Riley J. 
Wilson, of Louisiana, on Dec. 4, 1918, follows:

                             Report No. 839

              Contested Election Case, Wickersham v Sulzer

    The final conclusion of the committee is that the merits of the 
case are confined to matters involved in:
    First. Certain proceedings had before the judge of the United 
States District Court of Alaska, first divisor.
    Second. The legality of the votes cast by native Indians in certain 
sections of the Territory.
    Third. 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.

               matters involved in the court proceedings

    The subject matter effecting the vital issues in this connection 
can only be well understood by a full statement of the facts as to how 
the contest arose.
    In 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 prescribed generally for election machinery for that purpose. 
In relation to the form of ballot is found the following provision:

         The voting at said elections shall be by printed or 
     written ballot.

    Section 12 provided as follows:

[[Page 1306]]

         That the governor, the surveyor general, and the 
     collector of customs for Alaska shall constitute a canvassing 
     board for the Territory of Alaska, to canvass and compile in 
     writing the vote specified in the certificates of election 
     returned to the governor from all the several election 
     precincts as aforesaid.

    In 1915 the Territorial Legislature of Alaska passed an act 
adopting the Australian ballot system for that Territory, providing for 
an official form of ballot. No change was made as to the Territorial 
canvassing board. The act of the legislature providing for the 
Australian ballot system contains an unusual exception as to the use of 
the official ballots, known as section 21, which reads as follows:

         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 board whose duty it was to canvass and certify to the result of 
the election of November 7, 1916, was composed of J. F. A. Strong, 
governor; Charles E. Davidson, surveyor general; and John F. Pugh, 
collector of customs. The canvassing of the votes cast at this election 
was completed March 1, 1917, showing the following result:

Charles A. Sulzer .............................................    6,459
James Wickersham...............................................    6,490
Lena Morrow Lewis..............................................    1,346
                                                                --------
        Plurality for Wickersham...............................       31
------------------------------------------------------------------------

    Upon the completion of this canvass the said board was preparing to 
issue certificates in accordance with the result indicated by its 
canvass and tabulation of the vote. Before any certificate was issued 
to the Delegate to the House of Representatives, Mr. Sulzer, the 
contestee herein, presented a petition to Hon. Robert W. Jennings, 
judge of the United States District Court of Alaska, first division, 
praying for a writ of mandamus directed to the Territorial canvassing 
board, commanding said board to reject and not count the vote returned 
from seven precincts in said Territory, with name and vote cast, as 
follows: . . . .
    In the petition it was charged that the vote at each and all of the 
above-named precincts except Vault and Nizina 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

[[Page 1307]]

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. This petition was 
presented to the court on the 2d day of March, 1917. On the same day 
Judge Jennings issued an alternative writ of mandamus directed to the 
canvassing board, and commanding that in the canvass of the vote cast 
for Delegate for Congress from the Territory the vote at the above-
named precincts be rejected and not counted and that the certificate of 
election be issued to the petitioner, Charles A. Sulzer, as having 
received the greatest number of votes for that office at said election, 
and commanding that the board make due returns, and so on.
    These answers to the alternative writ of mandamus were filed March 
6, 1917. On March 23 the alternative writ of mandamus was made 
preemptory directing the rejection of the votes cast at each of the 
above-named precincts, except Nizina, and the issuance of the 
certificate of election to Mr. Sulzer, the contestee herein. The effect 
of this judgment was to establish as between the contestant and 
contestee for Delegate to the House of Representatives the following 
result:

Sulzer.........................................................    6,440
Wiekersham.....................................................    6,421
                                                                --------
        Plurality for Sulzer...................................       19
------------------------------------------------------------------------

    In accordance with this decree, the canvassing board reassembled on 
March 24 and issued the certificate of election to Mr. Sulzer.
    The contest was begun April 10, 1917, and was heard before the 
committee March 19, 1918.
    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.

[[Page 1308]]

    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 
Alaska election law is mandatory or is it merely directory.
    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 
     details of the election are directory. The principle is that 
     irregularities which do not tend to affect 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.)

    This doctrine was approved by the House in the case of Arnold v. 
Lee, Twenty-first Congress.
    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. This doctrine was approved by the House in the 
case of Miller v. Elliot, Fifty-second Congress, Rowell's Digest, 461. 
Also in the case of Thrasher v. Enloe, Fifty-third Congress, Rowell, 
page 487.
    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 in 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

[[Page 1309]]

     rule in this State, as it is generally 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.
    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.
    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 class 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.

[[Page 1310]]

    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 has done just what the law told him 
he might do lose his vote because these officials neglected to make out 
and inclose 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 constructing 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 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 expectations in that respect are abundantly confirmed by 
the facts in this ease. 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 ease, 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

[[Page 1311]]

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 feet that 
official ballots were not received at the precincts in question and 
that the proof is made by legal and competent evidence.
    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.
    . . . [I]n the judgment of your committee, from the established 
facts and circumstances surrounding the voting at the Bristol Bay 
precincts, the inference is clear and satisfactory that the official 
ballots were not received by the judges of election in the Bristol Bay 
district. These facts and circumstances may be stated as follows:
    First. It was the duty of the judges of election to receive the 
official ballots and to supply the electors with them as they appeared 
to vote. This duty is imposed upon them by law, and the presumption is 
that they would have discharged that duty. If the official ballots were 
there it is not probable that all the voters and all the officials in 
this district would have used and permitted the use of nonofficial 
ballots.
    Second. Other official election supplies, being the official 
register and tally book, were used by the judges of election at each of 
the precincts, and these supplies were the same at the precincts where 
the majority was for Sulzer as at precincts where the vote went for 
Wickersham.
    Third. No reason or any cause of any character is shown or 
suggested why the election officials or voters in this remote locality 
should have declined to use the official ballots with the names of the 
parties for whom they desired to vote printed thereon and instead 
prepare with pencil, typewriter, and other means the ballots which they 
cast. What reason could be given, for instance, for those who desired 
to vote for Mr. Wickersham declining to use ballots upon which his name 
was printed and taking ballots upon which the name of Mr. Sulzer was 
printed and going to the trouble to write Wickersham's name thereon in 
order to vote for him. It would not be safe or correct to assume, 
without proof, that there was a conspiracy or a general understanding 
to prevent the use of official ballots in this section of the 
Territory.

[[Page 1312]]

    In our judgment, a careful study of this record will preclude to 
any unbiased mind the belief that official ballots were supplied at any 
of these precincts, and it is not surprising that the election returns 
sent from this isolated and remote section should be found wanting in 
some formality. It is true the required certificate did not accompany 
the returns from all the precincts, but this statute places no penalty 
upon the voter on account of the absence of that certificate.
    This is undoubtedly just such a case as the Legislature of Alaska 
had in view when this exception, authorizing the voters to write or 
print their ballots, was enacted as a part of the laws of that 
Territory. Had it been the intention of the legislature to vitiate the 
returns in the absence of this certificate as a part thereof, and to 
thus deprive the voter of his ballot without any fault of his own, the 
statute would have so provided.

                           the nome division

    The two precincts here where the required certificate did not 
accompany the returns are Utica and Deering.

    A certified copy of the certificate . . . made by the clerk of the 
United States District Court of Alaska, second division, reads as 
follows:

         We, the undersigned judges of election held November 7, 
     1916, at Utica voting precinct in the Fairhaven recording 
     district, hereby certify that at the time of said election 
     there had been no ballots received, and Mr. Ketner, of 
     Deering, had the form of ballots telephoned from Candle and 
     repeated it to Utica, and we wrote the ballots, using the 
     form as we received it.

    The officials at this time were endeavoring to get the true facts 
about the election and to supply the deficiency in returns. There 
certainly could have been no design in making the statement contained 
in the above certificate. When the committee examined the original 
returns from Utica and Deering it was found that the ballots at Utica 
were written with lead pencil and conformed in all respects with the 
official ballot. The ballots used at Deering were in the same form and 
prepared with typewriter. It is not probable that the election judges 
at these two precincts, without having received any information as to 
the form and contents of the official ballot, which was quite lengthy, 
could have prepared ballots substantially in that form and containing 
the information as to the candidates and subjects that were printed on 
the official ballots. The one conclusion is that the information 
contained in this certificate is correct. The certificate is under the 
seal of the clerk of the district court, the officer with which such 
certificate should be filed, and therefore legal evidence. Had these 
officials at Utica and Deering received the official ballots, it is 
inconceivable that they would have made with pencil and typewriter 
ballots in the same form for the use of the voter.
    The evidence satisfactorily establishes the fact that no official 
ballots were received at either Utica or Deering precincts. Of course, 
under the view taken by the court, this evidence could not be 
considered, although it be of the most convincing character, but under 
the view taken by the committee

[[Page 1313]]

it has been considered here, and in view of this evidence and our 
appreciation of the law, the votes at Choggiung, Nushagak, Bonafield, 
Utica, and Deering should not have been rejected.

                             vault precinct

    The vote at this precinct was rejected because the judges of 
election had failed to sign the certificate in the back of the register 
and tally book. This same book showed that the judges of election were 
duly sworn and that they compiled the count and tallied the vote and 
complied with all other formalities except the signing of this 
certificate, which was sent to the Territorial canvassing board. It was 
also the duty of the judges of election to send a duplicate 
certificate, showing the result of the election to the clerk of the 
court of that division, and undisputed evidence shows that the original 
duplicate certificate, dated November 7, 1916, was filed with the clerk 
of the court and signed by all the judges, and that a certified copy of 
that certificate, made by the clerk of the court, had been sent to and 
was in the possession of the canvassing board. It is conceded that 
considerable argument might be made in favor of the reasons for 
rejecting the votes at the other precincts, but it is very difficult to 
find any support in law for throwing out the vote at Vault. The 
certified copy of the certificate, showing the vote at this precinct, 
was before the canvassing board and the information conveyed to the 
court that the certificate was before the board. This certificate was 
under the seal of the public officer, made by law the legal custodian 
of that document. The copy of this certificate is found on page 146 of 
the printed record. The committee holds that the vote at the Vault 
precinct should not have been rejected.

    Suffrage.--Indians born in Territory and severed from tribe are 
permitted to vote as citizens; ballots cast by nonresidents of precinct 
or Territory are invalid, as are ballots cast by military personnel 
involuntarily stationed in the Territory.
    Evidence.--All ballots cast by Indians were validated for lack of 
sufficient proof showing specific voters not qualified.
    Returns were rejected by proportional deduction method where there 
was no evidence for whom unqualified voters had cast ballots.
    Report for contestant, who was seated. Contestee unseated.

    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 excep

[[Page 1314]]

tions, 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 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. (Printed record 335 and 338.)
    While not connected with this or the other main features of the 
case, are the votes of Louis Klopsch, who was not a resident of the 
precinct in which he voted, and Julius Forsman, of foreign birth, 
unnaturalized, both of whom, according to direct and undisputed 
testimony, voted for Wickersham. These votes should not have been 
received or counted, and are accordingly deducted from contestant's 
vote. (Printed record 240 and 261.)

    The result of the findings in these two instances is a gain for 
Sulzer of 2 and a loss for Wickersham of 2, or a net gain for Sulzer of 
4 votes.

                              soldier vote

    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: . . .
    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.

[[Page 1315]]

    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.
    The soldier has an interest in knowing what construction is going 
to be placed upon the law affecting his domicile with its civil and 
political rights and privileges during his absence in the service of 
the country, while, on the other hand, the public is equally concerned 
as to the conditions under which a new domicile or residence may be 
acquired by those in the military service and stationed at many places 
in the several States.
    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 are 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 feet 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 cannot 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.

[[Page 1316]]

         Sec. 91. Soldiers in the United States Army cannot 
     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.

    See also, Hinds' Precedents, volume 2, pages 70 and 71; section 876 
Taylor v. Reading, Forty-first Congress.
    Also Report of Judiciary Committee of Senate in the case of 
Adelbert Ames, Senator from Mississippi--Compilation of Senate Election 
Cases, 375.
    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.
    Now in keeping with what was apparently the view held by some of 
these officials, in the argument for the contestee, 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, where the 36 votes, which the committee 
have found illegal, were cast, a total of 92 votes were polled, as 
follows:

[[Page 1317]]



------------------------------------------------------------------------
                                                      Sulzer  Wickersham
------------------------------------------------------------------------
Eagle..............................................       33         13
Ft. Gibbon.........................................       37          9
                                                    --------------------
        Total......................................       70         22
------------------------------------------------------------------------

    It is not definitely shown for whom these voters cast their 
ballots, with the exception of eight voting at Fort Gibbon, seven of 
whom testified they vote for Sulzer and one for Wickersham.
    Of the remainder, in order to save the votes legally cast and avoid 
discarding the entire poll at these precincts, a pro rata deduction 
should be made in accordance with the rule established in the case of 
Finley v. Walls, Forty-fourth Congress (Smith, 373, McCrary, sec. 495, 
p. 364), where the principle upon which the rule is founded is thus 
stated:

         In purging the polls of illegal votes the general rule is 
     that, unless it be shown for which candidate they were cast, 
     they are to be deducted from the whole vote of the election 
     division and not from the candidate having the largest 
     number. Of course, in the application of this rule such 
     illegal votes would be deducted proportionately from both 
     candidates, according to the entire vote for each.

    With a deduction made on this basis, and according to the testimony 
of the eight who disclosed for whom they voted, the total result at 
these two precincts would then stand:

         Sulzer, 42; Wickersham, 14; being a loss of 28 for Sulzer 
     and 8 for Wickersham, or a net loss for Sulzer of 20.

    Readjusting the entire vote in accordance with the findings and 
conclusions of the committee, the result finally established is:

Wickersham.....................................................    6,480
Sulzer.........................................................    6,433
                                                                --------
        Plurality for Wickersham...............................       47
------------------------------------------------------------------------

                               conclusion

    Wickersham had a plurality of the vote as returned and canvassed. 
There has been no serious dispute about this fact.
    The certificate of election which was about to issue to him upon 
the completion of the canvass was withheld and awarded to the contestee 
by a judgment of the court based upon a construction of the law with 
which your committee could not agree, and which was not in keeping with 
the precedents established by the House of Representatives.
    For the reasons assigned, your committee recommends to the House 
the option of the following resolutions:

[[Page 1318]]

    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.

    Privileged resolution (H. Res. 492) agreed to (229 yeas to 64 nays 
with 13 ``present'') after debate on Jan. 3, 4, and 7, 1919, and after 
rejection of motion by Mr. John L. Burnett, of Alabama (131 yeas to 187 
nays with 1 ``present'') to recommit the contest to the Committee on 
Elections No. 1 with instructions to report thereon by or before Feb. 
10, 1919 [57 Cong. Rec. 1059, 1106, 65th Cong. 3d Sess., Jan. 7, 1919; 
H. Jour. 53, 55].

Sec. 1.5 Gerling v Dunn, 38th Congressional District of New York.

    Notice of contests, although found insufficient for lack of 
particular specifications, did not prevent decision by committee on 
election on merits of contest.
    Ballots.--Committee on elections refused to consider allegations 
that state statutes governing arrangement of machines violated the 
state constitution.
    Evidence.--Contestant failed to offer sufficient proof of fraud by 
officials or irregulatories in use of machines.
    Report for contestee, who retained seat.
    Report of Committee on Elections No. 1 submitted by Mr. Riley J. 
Wilson, of Louisiana, on Feb. 17, 1919, follows:

                            Report No. 1074

                Contested Election Case, Gerling v Dunn

    The result of the election of November 7, 1916, in the district, as 
shown by the official returns and as between the contestant and 
contestee, was as follows:

Thomas B. Dunn.................................................   29,894
Jacob Gerling..................................................   13,867
                                                                --------
        Majority for Dunn......................................   16,027
------------------------------------------------------------------------

    The grounds upon which the contest is based, as set forth in the 
petition of the contestant, are substantially that the election held in 
the thirty-eight congressional district of New York on November 7, 
1916, was illegal and unconstitutional 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

[[Page 1319]]

were not legal machines as defined by the 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 contestant does not allege that he was elected or that the 
contestee did not receive a majority of the votes cast, the contention 
being that the election was illegal and void.
    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.

                            voting machines

    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 by 
     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 
     effcet.

    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.

[[Page 1320]]

                               resolution

    Your committee therefore recommends to the House the adoption of 
the following resolution:

         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.

    Reported privileged resolution (H. Res. 585) agreed to by voice 
vote and without debate [57 Cong. Rec. 3578, 65th Cong. 3d Sess., Feb. 
17, 1919; H. Jour. 199].

Sec. 1.6 Britt v Weaver, 10th Congressional District of North Carolina.

    State election law requiring ``X'' marking of ballots by voters was 
construed as mandatory and applicable to written ballots containing a 
single name, by committee on elections minority and by the House 
(overruling majority committee report declaring contestee elected by 
validating written unmarked ballots).
    Report of Committee on Elections No. 3 submitted by Mr. Walter A. 
Watson, of Virginia, on Feb. 21, 1919, follows.

                            Report No. 1115

                contested election case, britt v weaver

    The official returns of the election held on November 7, 1916, as 
ascertained and judicially determined by the canvassing boards of the 
respective counties of the district and by the State board of 
canvassers, showed the following result:

Weaver.........................................................   18,023
Britt..........................................................   18,014
                                                                --------
        Majority...............................................        9
------------------------------------------------------------------------

    Contestant's claim is that the official returns, properly 
ascertained and determined, should have shown the following result:

Britt..........................................................   18,008
Weaver.........................................................   17,995
                                                                --------
        Majority...............................................       13
------------------------------------------------------------------------

                           question at issue

    The question at issue is one of law, and in the view of the 
committee it is decisive of the merits of the case. Its decision rests 
upon the disposition to be made of certain ballots cast by voters at 
the election and not marked

[[Page 1321]]

in accordance with the directions of the State law. The question arose 
in this way:
    The canvassing board of Buncombe County attempted and did include 
as a part of the official vote ascertained some 33 of such unmarked 
ballots (27 of which were counted for Weaver and 6 for Britt), thereby 
making the vote of that county 4,353 for Weaver and 4,043 for Britt, 
instead of 4,325 for Weaver and 4,037 for Britt as contestant claimed 
it should have been. Against this action of the board contestant 
protested and instituted mandamus proceedings in the superior court of 
the State to compel the board to exclude the aforesaid ballots from the 
official count. The court held that, under State law, the board of 
canvassers possessed not only ministerial, but judicial, functions in 
determining election returns, and that hence it had no power to review 
its discretion, or to compel by mandamus its exercise in any particular 
way. From this judgment contestant appealed and after exhaustive 
argument the supreme court of the State sustained the opinion of the 
court below, and thereupon the State board of canvassers directed the 
certificate of election to be issued to the contestee. Thus the 
contestant sought and obtained the adjudication of the State courts 
upon the legal questions involved, so far as those tribunals felt they 
had jurisdiction to determine them in the proceedings brought.

                          The Unmarked Ballot

    The Australian ballot was not in use in North Carolina. The law 
governing general elections as it stood prior to 1915 required that 
``ballots shall be on white paper and may be printed or written, or 
partly written and partly printed, and shall be without device,'' that 
the size of the ballot should be prescribed by the State board of 
elections; that separate ballots and separate boxes should be used for 
the various Federal, State, and local offices, and that the ballots 
should be given out to the voters at the polls and each voter might 
deposit his own ballot if he chose. No account had to be kept of the 
number of ballots issued to the voters, and after the canvass by the 
election officers, which had to be in public view, the ballots voted 
were not made a part of the returns or required to be preserved in any 
way.
    Such were the general provisions of the law in so far as they 
affected the ballot at a general election prior to 1915. In that year 
the State undertook to legalize its primary elections, and in section 
32 of the act inadvertently, as is manifest from the context and its 
subsequent repeal, incorporated the following provision:

         That opposite the name of each candidate on the general 
     ticket to be voted at the general election shall be a small 
     square, and the vote for any candidate shall be indicated by 
     marking a cross mark, thus (X), in the square, and no voter 
     shall vote for more than one candidate for any office. But 
     there shall also be a large circle opposite the names of each 
     party's candidate on each ticket, and printed instructions on 
     said ticket that a vote in such large circle shall be a vote 
     for each and all of the candidates of the various officers of 
     the particular party, the names of whose can

[[Page 1322]]

     didates are opposite said circle, and if a voter in a general 
     election indicates by a cross in such large circle his 
     purpose to vote the straight and entire ticket of any party, 
     his vote shall be counted for all the candidates of such 
     party for the offices for which they are candidates, 
     respectively, as indicated on such ticket.

    This was the only reference to the subject in the whole act, and 
the provision was obviously intended to apply to a general ticket of 
some sort containing the names of several candidates among which the 
voter could indicate his choice by making the cross mark. But the act 
prescribed no such ballot for use in the general election; on the 
contrary, the congressional ballot in this election was separate and 
distinct for each political party, and each ballot contained but a 
single name; it would seem, therefore, the said provision could have 
had no application to a ballot of this kind, and that the deposit of a 
ballot with a single name would indicate the voter's choice beyond 
peradventure of doubt. . . .
    Now, the evidence in the record shows that some 90 electors, 
presumably qualified, cast their ballots in the election without making 
a cross mark in the square opposite the candidate's name. Did their 
failure to do so invalidate their ballots? Your committee thinks not.

                            law of the case

    Assuming that the statute intended to apply to a ballot with a 
single name, which it seems to us would be without reason and against 
common sense, the next question is whether such provision is mandatory, 
or merely directory. If mandatory, the failure of the voter to comply 
would invalidate the ballot; if only directory, his failure to follow 
legal forms in preparing his ballot, provided he made his intention 
plain, would not deprive him of his vote. The object of all election 
laws is to ascertain the will of the majority; and when ascertained the 
will of the majority should prevail, even though it be sometimes 
irregularly expressed.
    It is hard to lay down any precise rule of construction so as to 
determine in every ease what provisions of a statute are mandatory and 
which directory; but it is easy to gather from the legal text writers 
and from court decision what the general principle is applicable to the 
case in hand.
    Judge Cooley's rule:

         Those directions which are not of the essence of the 
     thing to be done, but which are given with a view merely to 
     the proper, orderly, and prompt conduct of the business, and 
     by a failure to obey which the rights of those interested 
     will not be prejudiced, are not commonly to be regarded as 
     mandatory; and if the act is performed, but not in the time 
     or in the precise mode indicated, it may still be sufficient, 
     if that which is done accomplishes the substantial purpose of 
     the statute. (Constitutional limitations, p. 113, and the 
     following cases from State courts: Odiorne v. Rand, 59 N. H., 
     504; Pond v. Negus, 3 Mass., 230; Holland v. Osgood,

[[Page 1323]]

     8 Vt., 276; Colt v. Eves, 12 Conn., 243; People v. Hartwell, 
     12 Mich., 508; Edmonds v. James, 13 Tex., 52; People v. 
     Tompkins, 64 N. Y., 53; State v. Balti. Comrs., 29 Md., 516; 
     Fry v. Booth, 19 Ohio, 25; Slayton v. Halings, 7 Ind., 144.)

    And relative to the construction of election laws in particular, 
the same author says:

         Every ballot should be complete in itself and ought not 
     to require extrinsic evidence to enable the election officers 
     to determine the voter's intention Perfect certainty, 
     however, is not required in these cases. It is sufficient if 
     an examination leaves no reasonable doubt upon the intention, 
     and technical accuracy is not required in any case. The 
     cardinal rule is to give effect to the intention of the 
     voter, wherever it is not left in uncertainty, act. . . . A 
     great constitutional privilege--the highest under the 
     Government--is not to be taken away on a mere technicality, 
     but the most liberal intendment should be made in support of 
     the elector's action wherever the application of the common-
     sense rules which are applied in other cases will enable us 
     to understand and render it effective. (Item, pp. 914 and 
     920.)

    McCrary, some time a representative from Iowa and a leading 
authority on election cases, laid down this rule:

         The language of the statute construed must be consulted 
     and followed. If the statute expressly declares any part of 
     an act to be essential to the validity of the election, or 
     that its omission shall render an election void, all courts 
     whose duty it is to enforce such statutes must so hold, 
     whether the particular act in question goes to the merits, or 
     affects the result of the election, or not. Such a statute is 
     imperative, and all considerations touching its policy or 
     impolicy must be addressed to the legislature. 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 merits of the 
     election. . . . 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. (McCrary on Elections, pp. 
     93 and 94; and see to the same effect, Tucker v. Com. 20 
     Penn. St. R. 493).

    ``Where the intention of the voter is clear the ballot will not be 
rejected for faulty marking by the voter, unless a law undoubtedly 
mandatory so prescribes,'' was the rule formulated by Mr. McCall, of 
Massachusetts, in a very able report from the Elections Committee and 
adopted by the House of Rep

[[Page 1324]]

resentatives in the Fifty-fourth Congress. (See Yost v. Tucker, 2 
Hinds' Prec., sec. 1077).
    ``Where the intention of the voter was not in doubt the House 
followed the rule of the Kentucky court and declined to reject a ballot 
because not marked strictly within the square required by the State 
ballot law.'' (Syllabus 2 Hinds' Prec., sec. 1121, in case of Moss v. 
Rhea, 57 Cong.).
    In many cases the House has counted ballots rejected by the 
election officers under an erroneous construction of the law, and 
reference may be made particularly to the case of Sessinghaus v. Frost 
in the Forty-seventh Congress where this course was pursued. (2 Hinds' 
Prec., sec. 975.)
    The Supreme Court of North Carolina in construing the very statute 
under review said:

         If the matter was properly before us and we had 
     jurisdiction to decide it, we would hold as to the 
     congressional ticket, which has only one name on it, that all 
     unmarked ballots ought to be counted for the respective 
     candidates, because the purpose of the election is to 
     ascertain the will of the voter, and the marking of the 
     ballot can only serve a useful purpose in ascertaining this 
     will when there are more names than one upon the ballot. (See 
     Britt v. Board of Canvassers, 172 N. C., p. 797.)

    Applying the foregoing principles then to the question at issue, we 
have these facts before us:
    The statute nowhere else declares it to be mandatory to mark the 
ballot in the square, nor pronounces the ballot invalid if not so 
marked; the marking could serve no purpose in indicating the will of 
the elector where only one name appeared, as his intention was manifest 
upon the face of the ballot itself; and lastly the marking of the 
ballot under such circumstances could not, by any stretch of the 
imagination, be deemed of the essence of the election or to affect its 
validity in any way.
    For these reasons, therefore, we have no hesitancy in holding that 
section 32 of the North Carolina primary law of 1915 was not mandatory; 
but that its provisions were directory only, and that the failure of 
the voter to comply therewith did not invalidate his ballot. All the 
unmarked ballots properly cast at the election should have been 
counted, and it was a mistake of law for the election officers to have 
excluded them from their official returns.
    . . . [I]t appears that there were 90 unmarked ballots voted at the 
election, 43 of which already appear in the returns, leaving a balance 
of 47 not counted by the election officers and which ought to go, 26 to 
Weaver and 21 to Britt. Adding these figures to the totals for the 
candidates already returned we have the true state of the poll as 
follows:

Weaver, official returns (less 2 deducted as                      18,047
 aforementioned),18,021, plus 26 unmarked ballots not counted..
Britt, official returns, 18,014, plus 21 unmarked ballots not     18,035
 counted.......................................................
                                                                --------
        Majority for Weaver....................................       12
------------------------------------------------------------------------


[[Page 1325]]

    The above result we believe to be based upon clear and satisfactory 
proof. We are not unmindful that there is some evidence tending to show 
there was an unmarked ballot at Leicester precinct for contestant not 
counted, probably 2 at Hazel for the contestee more than he is credited 
with above, and a few such ballots at Peachtree not counted nor 
ascertained who for; but the evidence in these cases is either 
conflicting or insufficient and the number of ballots involved not 
sufficient to change the result, and we therefore excluded them from 
consideration.

                   quantity and character of evidence

    The ballots not being preserved in North Carolina after being 
canvassed, and a recount therefore being impracticable, the committee 
has accepted none but clear and convincing testimony as to the number 
and contents of these unmarked ballots. Fortunately the record 
discloses very little dispute among the witnesses on the subject. Most 
of the testimony presented is from the election officers representing 
both political parties who were called by the contestant himself. It 
may be said, therefore, that the facts adduced relative to the unmarked 
ballots rests mainly upon contestant's evidence, which is practically 
uncontradicted. The ballots in the controversy and embraced in the 
above count were all found in the congressional boxes, kept by 
bipartisan election officers against whom fraud in this respect has 
neither been charged nor proven, and there is the same presumption of 
their having been cast by qualified electors as exists in favor of the 
other ballots which came out of the same box.

    The following minority views were submitted by Mr. Cassius C. 
Dowell, of Iowa; Mr. Fiorello H. LaGuardia, of New York; and Mr. 
Everett Sanders, of Indiana:

                        Report No. 1115, Part 2

    After a careful study of the statutes of the State of North 
Carolina and a thorough search of adjudications and the history of 
election legislation, we find that these so-called amended and 
supplemental returns have no legal status. These alleged returns were 
conceived and used by the board in a desperate attempt to prevent 
contestant, Mr. Britt, from receiving the election certificate, which 
the record shows he was clearly and legally entitled to receive.
    And these pretended returns did, in fact, become the basis upon 
which Mr. Weaver now is a sitting Member in this House.
    In other words, the so-called amended and supplemental returns were 
used by the canvassing board for the purpose of overcoming the 13 
majority which contestant Britt had received in the district.
    It is clear under the law that these alleged amended and 
supplemental returns were not, in fact, amended or supplemental 
returns, and could not legally form a part of a basis for certificate 
of election.
    It is, therefore, apparent that the certificate of election should 
have been issued to contestant J. J. Britt, and that he was legally 
entitled to same.

[[Page 1326]]

    It is apparent from the above statement that the original returns 
gave contestant Britt a majority of 13 votes. The question then 
presented to the committee and to the House is whether or not the 
evidence in this case is sufficient to overcome such original returns.
    Under the precedents of the House, when it appears that contestant 
(Britt) had the majority of the votes according to the original 
returns, the burden of proof then devolves upon the contestee (Weaver) 
to show that he received a majority of the votes cast at the election.
    The law of North Carolina at the time of the election, relating to 
the manner of marking the ballot, was as follows:

         That opposite the name of each candidate on the general 
     ticket to be voted at the general election shall be a small 
     square, and a vote for any candidate shall be indicated by 
     making a cross mark thus (X) in such square, and no voter 
     shall vote for more than one candidate for any office; but 
     there shall also be a large circle opposite the names of each 
     party's candidates on each ticket and printed instructions on 
     said ticket that a vote in such large circle will be a vote 
     for each and all of the candidates for the various offices of 
     the political party the names of whose candidates are 
     opposite said large circle; and if a voter at the general 
     election indicates by a cross mark in such large circle his 
     purpose to vote the straight or entire ticket of any 
     particular party, his vote shall be counted for all the 
     candidates of such party for the offices for which they are 
     candidates, respectively, as indicated on such ticket.

    The language of the above provision of the North Carolina statute 
is clear, concise, and unequivocal. It is subject to one 
interpretation, it wit, that a ballot must be marked. It is similar to 
the provisions of the election laws of nearly every State in the Union, 
and its purpose is to guard against the very thing which happened in 
this case, that while the ballot is made plain and easy in order that 
everyone, regardless of his education, may have an equal opportunity to 
understand it and vote according to his desires, yet it requires some 
affirmative act on the part of the voter to express his intention. This 
act was to place a cross mark in the square in front of the name of the 
candidate the voter desires to vote for.
    The contestee, Mr. Weaver, contends that in a number of precincts 
throughout the district, ballots bearing his name were voted without 
the voter placing the cross in the square in front of his name on the 
ballot, and that these ballots should be counted for him; and that by 
counting these unmarked ballots he received a majority of the votes 
cast at the election.
    The minority of your committee believe that the law of North 
Carolina, providing for the manner of voting and the manner of marking 
the ballot is mandatory, and that the ballot should have been marked as 
provided by this statute, in order to become a legal ballot. This is 
the general rule laid down by the courts in construing similar 
statutes. And it is our opinion that the unmarked ballots should not be 
counted.
    We call attention to a few of the cases bearing upon this question.

[[Page 1327]]

         Where the law provides that the voter shall indicate the 
     candidates for whom he desires to vote by stamping the square 
     immediately preceding their names or in case he desires to 
     vote for all the candidates of the party, etc.; Held, that 
     this provision is mandatory; the stamping of the square being 
     the only method prescribed by which the voter can indicate 
     his choice. (Parvin v. Wirnberg (Ind.), 30 N. E. 790.)

    From the opinion of the court in this case, on page 791, we quote:

         The doctrine that it is within the power of the 
     legislature to prescribe the manner of holding general 
     elections, and to prescribe the mode in which the electors 
     shall express their choice, is too familiar to call for the 
     citation of authority. In this instance it has declared that 
     the mode by which the elector shall express his choice shall 
     be by stamping certain designated squares on the ballot. 
     There is nothing unreasonable in the requirement, and it is 
     simple and easily understood. Furthermore, if he is 
     illiterate or is in doubt, the law makes ample provision for 
     his aid. If he does not choose to indicate his choice in the 
     manner prescribed by law, he can not complain if his ballot 
     is not counted. (Kirk v. Rhoads, 46 Cal. 399.) If we hold 
     this statute to be directory only and not mandatory, we are 
     left entirely without any fixed rule by which the officers of 
     election are to be guided in counting the ballots.

    Under a statute similar to the North Carolina statute, it was held 
that a ballot on which the names of candidates were written in, but no 
cross mark made after any of the names, can not be counted for any 
candidate. (Riley v. Traynor (Col.), 140 Pac. 469.)
    After quoting the statute, the court, on page 470 says:

         There can be no mistaking this language. It requires that 
     in order to designate his choice, the voter must use a cross 
     mark, as the law requires. In this case, no cross mark was 
     used anywhere with reference to any of the candidates for the 
     particular office in question, and the ballots ought not to 
     have been counted.

    Under a similar statute requiring the voter to make a cross 
designating his choice of candidates, it has been held that a failure 
to comply with this requirement invalidates the ballot. (See Vallier v. 
Brakke (S. Dak.), 64 N. W. 180, at 184.)

         The law has prescribed the manner in which an elector may 
     arrange his ticket, and what act he may do to designate the 
     candidates for whom he desires to vote. His act must 
     correspond with his intention, and unless it does the vote 
     can not be counted. The system devised is so simple that a 
     man of sufficient intelligence to know what a circle is, how 
     to make a cross, and left from right, can find no difficulty 
     in making up the ticket he desires to vote. He can have no 
     difficulty in expressing his intention in the man

[[Page 1328]]

     ner the law has prescribed. It is not necessary, therefore, 
     to impose upon judges of election or courts the duty of 
     ascertaining the intention of the voter, except in the manner 
     pointed out by the statute, namely, by the marks he has 
     placed upon the ballot in the manner prescribed by law.

    Following this construction of the law, there can be no other 
conclusion but that Contestant Britt was elected and is entitled to his 
seat.

    Evidence of ballots cast by unqualified voters and of voters 
improperly disqualified, which had been rejected by committee majority 
as insufficient or hearsay, was relied upon by minority to establish 
contestant as elected despite counting of written unmarked ballots.
    Majority report for contestee, who was unseated. Minority report 
for contestant, who was seated.

                          other irregularities

    But for the unmarked ballots there would have been no contest in 
this case. They caused the dispute before the Buncombe County 
canvassing board; they were the subject of litigation in the State 
courts; they were the burden of the argument before the committee; and, 
in our view, they are the heart of this whole controversy. But the 
contest once begun and issue joined, after the manner of ancient 
lawyers, each side brought blanket charges against the other, alleging 
other irregularities in the conduct of the election. Contestant claims 
that 156 individuals voted for his opponent who were disqualified by 
reason of nonage, or nonresidence, or nonpayment of poll tax, or 
intimidation, or bribery, or crime, or insanity; and on his part 
contestee contends that 200 voters disqualified for similar reasons 
were allowed to vote for contestant. Contestant further claims that 21 
qualified voters offering to vote for him were denied the right to cast 
their ballots.
    Amid the pressure of other duties and with the time at its command 
it would be a physical impossibility for the committee to trace out the 
details of each of these near 400 cases, each depending for solution 
upon its own state of facts, and it has been able to investigate 
carefully only a limited number of them. The testimony relating to 
these questions is in most cases hearsay, inconclusive, and often 
conflicting. Especially is this true when it comes to proof of how the 
alleged disqualified voters cast their ballots. Unless the voter 
himself waives the secrecy which protects his ballot, sound public 
policy would seem to forbid the reception of any evidence of the 
subject.
    However, as far as we have been able to pursue the inquiry 
concerning these alleged illegal voters, we have found that, upon the 
whole, the election officers conducted the election with general 
impartiality and in good faith. They represented both political 
parties, were upon the ground, had knowledge both of individuals and 
local conditions; and with the witnesses and public records before them 
they were in a situation to pass satisfactorily upon the various 
questions of nonage, nonresidence, poll taxes, etc., which arose before 
them. Being laymen for the most part and sometimes unlet

[[Page 1329]]

tered men, they occasionally made mistakes of law; but we have failed 
to find the number either large or very important, and these mistakes, 
such as they were, seem to us to have fallen about equally on both 
sides. In the absence of fraud or palpable mistake, we would not feel 
justified in going behind the election returns to review the judgment 
of officials exercised in good faith upon questions of fact they were 
as competent to determine as ourselves.
    No facts disclosed by the record would, in our judgment, warrant 
the House in undertaking now to hold the election over again, and to 
pass anew upon the variant qualifications of several hundred individual 
voters.
    This seems to have been the general view of the contestant himself, 
at least as to a greater part of the district, when, appearing in his 
own behalf before this committee, he said:

         I ask further that you determine as to the 12 counties of 
     the district other than Buncombe County the acts of the 
     returning boards in these counties on November 9 were without 
     grounds sufficient under our laws and practice to warrant a 
     review, etc. (Committee hearing, p. 98.)

                          ballots in wrong box

    Among other irregularities complained of by contestee was the fact 
that two ballots properly marked for him and found in a wrong box at 
Logan's Store precinct were rejected by the judges and not counted for 
him, while ballots similarly misplaced, were counted for contestant at 
other precincts. While the general rule of law undoubtedly is to count 
ballots placed in the wrong box by mistake, in North Carolina this 
question, under the statute, is left to the decision of the election 
officers; and their decision of the question, once made, ought not it 
seems to us to be subject to review.

         Any ballot found in the wrong box shall not be counted, 
     unless the registrar and judges of election shall be 
     satisfied that the same was placed there by mistake. (See 
     section 4347, N.C. election law.)

                               conclusion

    For the foregoing reasons the committee recommends to the House the 
following:
    Resolved:
    First: That James J. Britt was not elected a Member of this 
Congress.
    Second: That Zebulon Weaver was elected a Member of this Congress 
and is entitled to his seat.

    On this issue the minority report stated:

    The minority, however, desire to make it clear to the House that 
the evidence shows that Mr. Britt was elected, if the unmarked ballots 
are counted.

[[Page 1330]]

    If, in counting the unmarked ballots, all the testimony in the 
record is considered, contestant, Mr. Britt, has a clear majority of 
the votes cast at this election.
    Applying the ordinary rules laid down in contested-election cases 
with reference to ballots, which your minority believe must be applied, 
Contestant Britt has a much larger majority. . . .
    The majority report disposes of this issue as follows:

         Being laymen for the most part and sometimes unlettered 
     men, they [referring to the boards] occasionally made 
     mistakes of law; but we have failed to find the number either 
     large or very important, and these mistakes, such as they 
     were, seemed to us to have fallen about equally on both 
     sides.

    The minority dissent from this conclusion. On the contrary, an 
analysis of the evidence in respect to these votes does not show that 
the list is not large nor unimportant. Neither does it show that they 
have fallen about equally on both sides.
    The minority find the number of illegal votes cast for Contestee 
Weaver exceed any number that could possibly be claimed to have been 
cast for Contestant Britt and that the excess is 24 votes, not 
including the votes hereinbefore specifically referred to. . . .
    After thoroughly considering the record in this case, and after 
carefully reviewing the evidence, we feel confident that contestant, 
Mr. Britt, has been clearly elected, and by a majority of not less than 
43 votes, even if the unmarked ballots should be counted.
    The undersigned minority, therefore, respectfully recommend the 
adoption of the following resolutions:

         Resolved, That Zebulon Weaver was not elected a 
     Representative in the Sixty-fifth Congress from the tenth 
     congressional district of North Carolina, and is not entitled 
     to retain his seat therein.
         Resolved, That James J. Britt was duly elected a 
     Representative in the Sixty-fifth Congress from the tenth 
     congressional district of North Carolina, and is entitled to 
     a seat therein.

    The above resolutions were offered as a substitute to the majority 
resolution.
    Mr. Watson called up the privileged resolution recommended by the 
committee majority, on which debate was extended to five hours and 
equally divided between Mr. Watson and Mr. Dowell by unanimous consent. 
The substitute amendment offered by Mr. Dowell declaring contestee not 
elected and not entitled to retain a seat and declaring contestant 
elected and entitled to a seat was agreed to by 182 yeas to 177 nays, 
which vote was then reconsidered by 180 yeas to 177 nays. The 
substitute amendment was then again agreed to by 185 yeas to 183 nays 
with 6 ``present.'' The resolution as thus

[[Page 1331]]

amended was agreed to (185 yeas to 182 nays with 6 ``present''), and 
the motion to reconsider that vote was held not in order by the House, 
thereby overruling the decision of the Chair by 173 yeas to 182 nays. 
[57 Cong. Rec. 4777, 65th Cong. 3d Sess., Mar. 1, 1919; H. Jour. 272-
277.]


                 Sec. 2. Sixty-sixth Congress, 1919-21

Sec. 2.1 Tague v Fitzgerald, 10th Congressional District of 
     Massachusetts.

    Ballots, disputed at state recount or during taking of evidence, 
were examined and recounted by the committee on elections upon adoption 
by the House of a resolution authorizing subpena of ballots and 
election officials.
    Ballots, containing write-in or sticker votes for contestant but 
absent the corresponding crossmark required by state law, were held 
valid, thereby overruling decision of state officials, where voter 
intent was clear.
    On Sept. 4, 1919, Mr. Frederick R. Lehlbach, of New Jersey, by 
direction of the Committee on Elections No. 2 obtained unanimous 
consent for the immediate consideration of the following resolution (H. 
Res. 280):

    Resolved, That M. W. Burlen, Edward P. Murphy, Frederick J. 
Finnegan and Jacob Wasserman, the members of the board of election 
commissioners of the city of Boston, or any successor of them in said 
office, be, and they are hereby, ordered to be and appear before 
Elections Committee No. 2 of the House of Representatives forthwith, 
then and there to testify before said committee or such commission as 
shall be appointed touching such matters then to be inquired of by said 
committee in the contested-election case of Peter F. Tague against John 
F. Fitzgerald, now before said committee for investigation and report 
and that the members of the board of election commissioners of the city 
of Boston bring with them all such ballots and packages of ballots cast 
in every precinct in the said tenth congressional district of 
Massachusetts at the general election held in said district on the 5th 
day of November, 1918, as were described as challenged, disputed, or 
contested ballots, either at the recount of the ballots cast at said 
general election conducted by said board of election commissioners of 
the city of Boston, or at the taking of depositions before notaries 
public in this case; also, all ballots received from absent soldiers 
and sailors and not counted; that said ballots be examined and counted 
by or under the authority of such committee on elections in said case; 
and to that end that proper subpoenas be issued to the Sergeant at Arms 
of this House, commanding him to summon said members of the board of 
election commissioners of the city of Boston, or any successor in 
office of either of them to appear with such ballots as witnesses in 
said case; that service of said subpoenas shall be deemed sufficient, 
if

[[Page 1332]]

made by registered letter, and such service shall be so made unless 
otherwise directed by said Committee on Elections No. 2; and that the 
expenses of said witnesses and all other expenses under this resolution 
be paid out of the contingent fund of the House; and that said 
committee be, and hereby is, empowered to send for all other persons 
and papers as it may find necessary for the proper determination of 
said controversy; and also be, and it is, empowered to select a 
subcommittee to take the evidence and count said ballots or votes, and 
report same to the Committee on Elections No. 2 under such regulations 
as shall be prescribed for that purpose; and that the aforesaid 
expenses be paid on the requisition of the chairman of said committee 
after the auditing and allowance thereof by said Elections Committee 
No. 2, and when approved by the Committee on Accounts--was considered 
and agreed to.

    House Resolution 280 was agreed to by voice vote without debate [H. 
Jour. 425, 66th Cong. 1st Sess.].
    Report of Committee on Elections No. 2 submitted by Mr. Louis B. 
Goodall, of Maine, on Oct. 13, 1919, follows:

                             Report No. 375

              Contested Election Case, Tague v Fitzgerald

    Your Committee on Elections No. 2, having had under consideration 
the contested election case of Peter F. Tague v. John F. Fitzgerald, 
tenth congressional district of Massachusetts, and having completed its 
investigation and consideration of same, herewith submits its report to 
the House of Representatives.
    Contestant and contestee were candidates for the Democratic 
nomination for Member of Congress in the primaries in the September 
preceding the election. Contestee, on the face of the returns, was 
declared to have received the nomination, whereupon contestant 
instituted proceedings to have this result reversed, first before the 
board of election commissioners of the city of Boston and subsequently 
before the ballot-law commission of the State of Massachusetts. The 
validity of contestee's nomination was eventually upheld, but the 
decision was rendered a few days before election day, too late for 
contestant to file an independent petition whereby his name could be 
printed upon the ballots to be used in the general election. The method 
of voting in Massachusetts is by the voter making a cross after the 
name of the candidate of his choice where it appears on the ballot. 
Where the name of the voter's choice is not printed on the ballot, he 
is permitted to write the name thereon or affix thereto a sticker 
bearing the name of his choice and then marking a cross after the name 
thus written or affixed. All votes cast for contestant in the election 
necessarily were of this character. On the face of the returns 
contestee was declared elected by a plurality of 238 votes in a total 
number of 15,293 votes cast for Member of Congress in the entire 
congressional district.
    One thousand three hundred and four ballots cast in said election 
were disputed. Your committee carefully examined each of said disputed 
ballots

[[Page 1333]]

and where possible gave to them such effect as from their examination 
was obviously the intent of the voter casting the same, within such 
limitations, however, as the common law and the statutes of the State 
of Massachusetts prescribe. A large number of such ballots had affixed 
to them stickers bearing the words ``Peter F. Tague for Congress'' or 
had the name of Peter F. Tague written thereon without, however, a 
cross thereafter. No other candidate for Congress was voted for on such 
ballots. In the absence of a provision expressly rendering such a 
ballot void in the Massachusetts statute and in the absence of a 
reported case on that point in this State, the committee held that the 
intention of the voter to vote for Peter F. Tague was manifest by 
affixing a sticker or writing the name, notwithstanding that the act 
had not been completed by the making of a cross thereafter, and counted 
such vote for Tague. Various other changes in specific cases from the 
determination of the local canvassers were made, the committee acting, 
except in the above set forth instance, with practical unanimity. After 
such reexamination of the ballots, the committee found the plurality of 
contestee to be 10 without passing upon the validity of 14 ballots 
challenged at the polls, all for contestee, and 6 soldier votes 
received in the office of the secretary of state of Massachusetts on 
days subsequent to the day of election, of which 5 were for contestee 
and one for contestant.
    It is but just to state that in its review of these ballots the 
committee found the work of the board of election commissioners of the 
city of Boston to be fair, impartial, and accurate, the difference in 
its determinations and those of the committee being substantially due 
to the feet that the Boston commission was guided by an opinion of the 
attorney general of Massachusetts rendered some 20 years ago, which 
your committee was unwilling to give the force of law in the absence of 
judicial support.

    On Oct. 18, 1919, the following minority views to accompany House 
Report 375 were, by unanimous consent, filed by Mr. James W. 
Overstreet, of Georgia, and Mr. John B. Johnston, of New York:

    The contestant, Mr. Tague, in our opinion utterly failed to carry 
the burden he assumed in the contest. He failed to prove the 
allegations made in his case. Mr. Fitzgerald was elected on the face of 
the returns and has a certificate of election from the governor of 
Massachusetts and the governor's council. And he, of course, is 
entitled to his seat, unless the contestant can show to the contrary.
    When a Member of Congress is charged with the duty of passing upon 
the title of the office of one of his colleagues he assumes a delicate 
and solemn responsibility. Wholesale charges of fraud, intimidation, 
bribery, and coercion were made by the contestant and his counsel, and 
these charges were in no instance supported by proof.

    The contestant alleged that several hundred ballots were cast for 
him with stickers having his name thereon without a cross opposite his 
name, and contended that if these ballots were counted for him there 
would be more than enough of such ballots to change the result of the 
election. The

[[Page 1334]]

committee sent for, and had brought before it, all of the contested 
ballots and examined them carefully one by one,
    Every ballot having a sticker with the name of Peter F. Tague 
without a cross was counted for the contestant, although contrary to 
the law of the State of Massachusetts. Every ballot having the name of 
John F. Tague, William H. Tague, or even Tague written on it With 
pencil or ink and without a cross was counted for the contestant. He 
was given the benefit of every doubt in counting the contested ballots. 
. . .
    If certain ballots that were counted for Mr. Fitzgerald, or thrown 
out by the commissioners and afterward counted for Mr. Tague by our 
committee, could have changed the result by electing Mr. Tague, then 
the committee would be justified by congressional precedent. But the 
most liberal count of the ballots by the committee failed to change the 
result.
    As the case stood after an examination of the ballots after which 
the committee gave Mr. Tague everything he claimed, contestee had a 
plurality of 10 votes, not counting challenged votes or soldiers' votes 
that came in late, which, if counted, would have given contestee a 
plurality of 25. To overcome these 10 votes so that contestant could 
win, it was only necessary to prove 11 cases of illegal registration.

    Returns, totally rejected in precincts where one-third of voters 
therein were fraudulently registered, where other frauds were committed 
by party workers for contestee, and where contestee failed to prove 
that remaining qualified voters had voted for him, established a 
majority for contestant.
    Returns in precincts containing fraudulently registered voters were 
totally rejected rather than by proportional deduction method, where an 
elections committee majority considered the frauds more prevalent than 
those proven and where illegal votes were not cast pro rata between 
parties.
    Registration.--Numerous incidents of merchants' and municipal 
employees' fraudulently claiming domicile in certain precincts in order 
to participate in local elections were held sufficient grounds for 
rejection of entire returns from such precincts, though insufficient to 
justify declaration of vacancy.
    Majority report for contestant, who was seated upon unseating of 
contestee. Minority views recommending declaration of vacancy and 
separate minority views for contestee.
    The majority report continues:

    Contestant, among the reasons in his notice of contest, charges the 
following:

         E. In ward 5 the large vote which was cast for you was 
     composed in great part of those who had been colonized in 
     said ward for the purpose of manipulation by the political 
     organization of

[[Page 1335]]

     said ward, which colonization and illegal registration and 
     illegal voting was contrary to the State and Federal law.

    Various other charges of frauds and irregularities at the general 
election are made by the contestant. He also charges gross frauds and 
irregularities in the conduct of the primary election, including the 
charge of colonization and illegal registration. As these other charges 
were not determining factors in the committee's conclusions, save as 
they may have corroborative and cumulative effect with regard to the 
charge E, your committee refrains from discussing them in this report 
except as they are incidentally referred to below.
    Your committee, after careful and exhaustive scrutiny of the oral 
testimony taken in the ease and the exhibits filed therewith, finds and 
reports the following facts.
    The laws of the State of Massachusetts do not provide for an annual 
personal registration of voters. Names appearing on the registry list 
are carried subject to the check of a canvass made by police officers 
on the 1st day of April of each year. Information not under oath 
furnished the police on this occasion by a member of a household or by 
an employee of a hotel or lodging house is sufficient to retain a name 
on the registry list. Holders of liquor licenses must be residents of 
the locality in which the license permits them to do business. 
Municipal employees must be residents of the municipality upon whose 
pay roll they are. There were a large number of licensed liquor places 
in the fifth ward of Boston. The existence of these licenses depended 
upon the city of Boston voting wet in the local-option elections. 
Because of the necessity of license holders being residents of the city 
of Boston and because of the desirability of the employees of these 
places voting in the Boston local-option election in order to insure 
the continuance of their employment, such liquor dealers, bartenders, 
waiters, and porters whose homes, in fact, were elsewhere took 
advantage of the laxity of the registration laws by causing their names 
to be placed upon the registry lists of the fifth ward, retaining the 
same year after year by the expedient of spending a few nights at some 
address in the ward on or about the 1st of April and voting in the 
primaries and on election day and incidentally in the local-option 
election in the fifth ward of Boston. The same state of facts obtains 
with regard to municipal employees, particularly with regard to those 
who obtained their appointments through Martin M. Lomasney, the 
acknowledged political leader of the fifth ward. This state of affairs 
is particularly prevalent in precincts, 4, 8, and 9 of said ward. There 
also are located in these three precincts 28 hotels or lodging houses. 
From these places 230 votes were cast, 153 of which came from seven 
lodging houses.
    Your committee finds and reports that large numbers of names of 
persons were handed in to the police by the clerks of these lodging 
houses as being domiciled there, who, in fact, were not such residents 
and of whom, subsequently, no trace could be found.
    Your committee finds and reports that the total vote cast for all 
candidates for Congress in the fourth, eighth, and ninth precincts of 
the fifth ward was 906. As a result of an investigation a list of 316 
names of persons

[[Page 1336]]

who had voted in the election in these three districts was compiled, 
who prima facie evidence indicated were fraudulently upon the registry 
list. These were summoned to appear and testify before the notaries 
public taking testimony under the authority of and by the direction of 
Congress. Service of these summons was intrusted to the United States 
marshal of the judicial district and his deputies. Of this number 188 
could not be found, either at the addresses from which they voted or 
elsewhere. Seventy-seven upon whom process had been duly served refused 
to appear. Of the remainder who appeared and by their testimony sought 
to justify the legality of their vote, a large majority were not in 
fact domiciled at their voting address, but had families elsewhere with 
whom they actually made their homes, and their pretensions to a 
residence in these precincts of ward 5, upon which they could legally 
predicate the right to vote there, were the flimsiest subterfuge. In 
addition to this testimony, in 28 of the cases of alleged fraudulent 
registrants who refused to obey the congressional process, the 
testimony of women who knew these men and their families proved their 
nonresidence at the addresses voted from.
    Your committee finds and reports that fully one-third of the total 
number of votes cast in the fourth, eighth, and ninth precincts of the 
fifth ward of Boston were fraudulent.

    Your committee further finds and reports that Martin M. Lomasney is 
the political boss of the fifth ward; that he is nominally a Democrat 
but that when it suits his personal ends he has no hesitancy in 
wielding his power to encompass the defeat of Democratic candidates; 
that he and his lieutenants work through an organization located in the 
fifth ward, known as the Hendricks Club; that he has built up his power 
through a number of years largely by means of the fraudulent votes of 
the liquor dealers, bartenders, and city job holders illegally 
registered in his ward and the padded returns of alleged residents in 
the cheap lodging houses. Lomasney admits that he used the full powers 
of his organization and resources to defeat contestant.
    As an example of the methods employed, your committee refers to the 
fact that at the primary election the names of a number of young men 
who were absent from Boston in the military or naval service of the 
country were voted on, among these being the son of the president of 
the Hendricks Club and the son of the secretary of that organization. 
In each ease where the name of the son was thus fraudulently voted on, 
the father was in charge of and present at the polling place at which 
such vote was east.
    Your committee further points out that one of the workers on behalf 
of the contestee, subsequent to the selection, admitted to a friend of 
contestant that he had caused to be prepared and distributed stickers 
with no gum attached, in order that the person seeking to vote for 
Tague would be thwarted in this by the falling off of the sticker after 
the ballot had been deposited in the box. Such a sticker without gum 
was produced in evidence, but there was in fact no direct evidence 
produced showing the distribution at the polls of such ungummed 
stickers by workers for the contestee. In corroboration of the 
admission of the supporter of contestee, however, your committee found 
on 10 ballots crosses after a blank space, with evidence that the paper 
in

[[Page 1337]]

said blank space had been moistened, apparently in an endeavor to affix 
something thereto.
    That Lomasney exercised in this election control over large numbers 
of these illegal registrants is demonstrated by the following incident. 
Process under authority of ballot-law commissioners of Massachusetts 
had been served on a large number of alleged fraudulent voters in the 
investigation of the primary election. They refused to appear. The 
commission intimated that their absence might militate against the 
eontestee. Lomasney thereupon appeared in the court room at the head of 
some 45 alleged witnesses. He admitted when testifying in the 
congressional investigation that he had ordered these witnesses 
produced. He refused to render like assistance to Congress. Questions 
as to his ability and willingness to assist Congress in the production 
of evidence sought under its authority in conformity with the procedure 
prescribed by it in statutes were excluded by the notary public, 
Mancowitz, who functioned on behalf of contestee. In this the notary 
grossly exceeded his authority. His performance during the hearing 
presents a curious admixture of ignorance and impudence. The attitude 
of Lomasney, Mancowitz, and certain others present at the congressional 
proceedings on behalf of contestee was one of defiance of the authority 
of Congress and resentment at its interference in what they deemed 
their local affairs.
    In the face of all this evidence contestee contents himself with a 
bare denial and produces no testimony to refute it.

    Mr. Robert Luce, of Massachusetts, submitted minority views to 
accompany the committee report. Those views provided in part:

    In the present case it was shown that illegal registration had also 
taken place in the wards carried by Mr. Tague, and although no attempt 
was made to prove it existed there to such an extent as in the wards 
carried by Mr. Fitzgerald, there was nothing to indicate that even if 
it were possible to prove in specific instances for whom illegal votes 
were cast, it would be shown that no considerable number of such votes 
were cast for Mr. Tague.
    2. Mr. Tague had been twice elected to Congress under the same 
conditions as those of which he now complains. In each instance he 
sought and accepted the support of Martin M. Lomasney, a ward leader 
whom he now charges with being responsible for the frauds alleged. As a 
candidate for a third term, he again sought the support of Mr. 
Lomasney, and only when that was refused did he show any objection 
whatever to the methods by which he had profited and with which he was 
thoroughly familiar. For many years it has been common knowledge in 
Boston that many men whose real homes are in the suburbs, make an 
annual pretense of living in the locality here concerned, for 
financial, political, or social reasons. It has also been commonly 
known that men in unreasonably large numbers have been registered from 
lodging houses, with the effect of making impersonation easy, inasmuch 
as repeaters can vote on the names of such men with little fear of 
detection. Mr. Tague took no offense at this state of affairs while it 
accrued to his advantage. He then made no request to the election 
commissioners that lists should be purged. He employed no 
investigators, no challengers. He did not assume it to be a part of 
good citizenship to lay the facts

[[Page 1338]]

before the legislature and suggest a remedy. He acquiesced in what he 
now declares to be fraud, because that was then to his benefit. It is a 
cardinal principle of justice that he who seeks equity must come into 
court with clean hands. A man may not profit by fraud both coming and 
going. Mr. Tague is estopped by his previous acquiescence.

    Mr. Overstreet and Mr. Johnston contended in their minority views:

    There is not one case of illegal registration conclusively proven. 
There was no proof of one illegal vote cast for Mr. Fitzgerald. There 
has not been a single name stricken from ward 5 voting list on Mr. 
Tague's charges; in fact, recent information discloses that the voting 
list this year just completed shows 280 more voters registered in ward 
5 than a year ago when this election took place.
    The majority of the committee bases its decision on the unsupported 
testimony of contestant, which was the result of information received 
from canvassers, and clearly inadmissible in any court of law, and 
never before was received before a congressional committee.
    The contestant in his brief practically admitted that he had not 
proved his allegation of illegal registration. He claims, however, that 
because his unsubstantiated allegations were not answered by the 
persons involved he is excused from proving them. This position is 
unsound for the reasons:
    First. The burden of proof is on the contestant.
    Second. There is a presumption that the certified voting lists are 
correct and in compliance with the law.

    Contestant attacks the right of many persons to vote where listed 
and registered in this district, claiming that they have no legal 
domicile there.
    Every man must have a domicile. It is undisputed that he has a 
right to choose his domicile. In the ease of men having several homes, 
they have the right to choose any one of them as their domicile. In the 
ease of men moving from place to place, it is clearly their right to 
choose their domicile, and the question of domicile is a question of 
intent. . . .
    Ward 5 comprises nearly the entire business section of Boston, with 
its great hotels, docks, and wharves, great banks and warehouses, the 
two great railroad terminals of Boston, the statehouse, post office, 
customhouse, city hall, and the county courts. It has a highly 
diversified population in which are represented all of the European 
countries, as well as the native Yankee. There are many small hotels 
and lodging houses. There are a great many places where men only live 
for a short while, and move from place to place. There are many 
unfortunate men who are compelled by force of circumstances to live in 
these cheap places, but who have the right to a domicile and the right 
to vote. These men can not be disfranchised because they happen to live 
in a different house or on a different street at election time than 
they did at the time they were listed by the police.
    In Boston, men, in order to vote at election, must be listed where 
they reside the first week of April. If they are so listed they have 
the right to vote

[[Page 1339]]

from such residence if qualified and later registered. (See sec. 14, 
chap. 835, acts of 1914.)
    All of the witnesses stated that they were listed and registered in 
ward 5 where they lived and nowhere else. Now, if these men live there 
intending that it shall be their domicile, they can not be listed 
elsewhere, and without listing they would not be entitled to vote 
elsewhere, and would therefore be disfranchised.
    Here is the law on this matter:

         See. 69. In Boston there shall be a listing board 
     composed of the police commissioner of said city and one 
     member of the board of election commissioners.
         Sec. 70. The listing board shall, within the first seven 
     week days of April in each year, by itself or by police 
     officers subject to the jurisdiction of the police 
     commissioner, visit every building in said city, and after 
     diligent inquiry make true lists, arranged by streets, wards, 
     and voting precincts, and containing as nearly as the board 
     can ascertain, the name, age, occupation, and residence on 
     the first day of April in the current year, and the residence 
     on the first day of April in the preceding year, of every 
     male person twenty years of age or upwards, who is not a 
     pauper in a public institution, residing in said city. Said 
     board shall designate in such lists all buildings used as 
     residences by such male persons in their order on the street 
     where they are located, by giving the number or other 
     definite description of every such building so that it can be 
     readily identified, and shall place opposite the number or 
     other description of every such building the name, age, and 
     occupation of every such male person residing therein on the 
     first day of April in the current year, and his residence on 
     the first day of April in the preceding year.
         The board shall place in the lists made by it, opposite 
     the name of every such male person or woman voter, the name 
     of the inmate, owner or occupant of the building, or the name 
     and residence of any other person, who gives the information 
     relating to such male person or woman voter. (Chap. 835. 
     Listing and Registration of Voters in Boston.)

    As shown above in the statute the name of the informant must be 
given to the police, so that this evidence was available to show 
whether or not these men were bona fide residents.
    Under this system in ward five, the police listed over 22,000 male 
persons on the 1st of April 1918, six months before the election, and 
at a time when Mr. Tague and Mr. Lomasney's relations were most 
friendly, as shown by Mr. Tague's letter to Mr. Lomasney, which appears 
in the evidence, under date of March 28, 1918, in which he asked him to 
send him the name of a contractor whom he could use to get in on 
contracts to build some of the cantonments, yet but 4,800 of these 
22,000 possible voters were registered on election day in November. 
Could any stronger answer be made to Mr. Tague's charge of 
colonization?

[[Page 1340]]

    It is also worthy of note that an examination of the voting lists 
in the three precincts to be thrown out shows that the large majority 
of the voters to be disfranchised were on the voting list all the time 
that Mr. Tague was in Congress, and were known as his supporters, in 
fact were respongible for hie first nomination. This does not look like 
colonization to defeat Mr. Tague.
    In order to decide that there was illegal registration so as to 
invalidate any of the contestee's votes, it must be shown either that 
the men charged were acting in conjunction with the contestee or his 
friends in fraudulent registration or that the informant or landlord 
were doing the same. This was not shown in any case.
    Having failed to properly prove this, the contestant, over 
contestee's objection, read a prepared list of the names of persons 
alleged to be the same persons registered in ward 5, and alleged to be 
residents of other districts in other parts of the city, or in Boston 
suburbs.
    This evidence was gathered by investigators, whose names the 
contestant would not divulge, and which was not sworn to. He refused to 
allow contestee's counsel to examine the reports from which he was 
reading. . . .
    Examination with a microscope by experts did not furnish any 
evidence to substantiate the charge that stickers lacking gum were 
distributed. The fact that dot a single voter testified to having 
received a sticker without gum on it made it seem to some of the 
committee at any rate extremely improbable that the distribution of 
such stickers was general, if indeed it took place at all.

    The majority report concluded:

    Having found the facts to be as above set forth, it remained for 
your committee to apply such remedy as would do justice and would 
conform to the law.
    Early in the history of congressional contested-election cases, the 
doctrine was developed that where precincts or districts were so 
tainted with fraud and irregularity that a true count of the votes 
honestly cast was impossible, such precincts or districts must be 
rejected and the parties to the contest may prove aliunde and receive 
the benefit of the votes honestly cast for them. As early as the 
Fourteenth Congress, 1815-1817, in the case of Easton v. Scott 
(Rowell's Digest, 68); the committee unanimously recommended that the 
alleged return from the precinct of Cote Sans Dessein be rejected and 
submitted resolutions declaring petitioner entitled to the seat. This 
report was recommitted to the committee with instructions to receive 
evidence that persons voting for their candidate were not entitled to 
vote on the election. Apparently the recommendation of the committee to 
reject the vote of the precinct was not questioned. The doctrine thus 
laid down by the Elections Committee in the Fourteenth Congress has 
been followed in an overwhelming number of cases, the most recent 
being--
    Horton v. Butler, twelfth Missouri, Fifty-seventh Congress. 
(Moore's Digest, 15.)

[[Page 1341]]

    Wagner v. Butler, twelfth Missouri, Fifty-seventh Congress. 
(Moore's Digest, 20.)
    Connell v. Howell, tenth Pennsylvania, Fifty-eighth Congress. 
(Moore's Digest, 23.)
    Gill v. Catlin, eleventh Missouri, Sixty-second Congress. (Moore's 
Digest, 52.)
    Gill v. Dyer, twelfth Missouri, Sixty-third Congress. (Moore's 
Digest, 84.)
    The contention that by this procedure honest voters lost their 
franchise and that the parties are deprived of votes honestly cast for 
them is overcome by the rule that evidence aliunde may be received to 
establish what persons honestly voted in such precincts and for whom. 
Contestee after notice of the charge and after knowledge of the 
testimony in support thereof that so many fraudulent votes had been 
cast in the fourth, eighth, and ninth precincts of ward 5 in the city 
of Boston as to vitiate the returns from that district had ample 
opportunity, particularly in view of the influence and control 
exercised over such voters in these precincts by his supporter, Martin 
M. Lomasney, to produce persons lawfully entitled to vote in said 
precincts and to prove by their testimony that fact and that they had 
voted for him. It has at times been suggested that a proper procedure 
would be to deduct from the return of a tainted precinct the number of 
fraudulent votes proved and if it can not be established for whom such 
fraudulent votes were cast to apportion the loss pro rata between the 
contesting parties. This course would result in the election of the 
contestant. Your committee, however, is unwilling to adopt this 
procedure and base its recommendations thereon, because it believes 
that the number of fraudulent votes in these precincts was greater than 
the number actually proved; that in the conditions obtaining such 
fraudulent votes were not cast pro rata between the parties to this 
contest; that it is a bad precedent and consequently your committee is 
unwilling to assume responsibility therefor and that as a remedy for 
the conditions developed by the evidence it is inadequate. Your 
committee rejects the suggestion that the seat be declared vacant. Such 
a course in the state of facts proved in this case is contrary to the 
established practice of the House of Representatives. It is unfair to 
the contestant and to the honest voters of the tenth congressional 
district of Massachusetts, the majority of whom voted for him. It is 
repugnant to the legal maxim that there should be an end to litigation. 
It is withholding by the House of Representatives the full measure of 
its disapprobation which it ought to set upon the situation disclosed 
in this case.
    Rejecting these three precincts, your committee finds that the 
contestant, Peter F. Tague, on the face of the returns, without 
considering the changes made by the committee in its recount of the 
ballots, received a plurality of 316 votes over the contestee, John F. 
Fitzgerald. Giving effect to the revision of the count of ballots, your 
committee finds that contestant had a plurality of 525.
    For the reasons assigned, your committee recommends to the House 
the adoption of the following resolutions:
    1. That John F. Fitzgerald was not elected a Member of the House of 
Representatives from the tenth congressional district of the State of 
Massachusetts in this Congress and is not entitled to retain a seat 
herein.

[[Page 1342]]

    2. That Peter F. Tague was duly elected a Member of the House of 
Representatives from the tenth congressional district of the State of 
Massachusetts in this Congress and is entitled to a seat herein.

    Mr. Luce submitted:

    With the conclusion of the majority of the committee that the seat 
now occupied by John F. Fitzgerald should be declared vacant I agree, 
but I am of the opinion that Peter F. Tague should not be declared to 
have been elected, for these reasons: 1. It is not possible to show 
that Mr. Tague received a plurality of the votes legally cast. 2. The 
illegal registration of which Mr. Tague complains and which furnishes 
the only sufficient ground for vacating the seat was a continuance of 
the conditions that Mr. Tague twice accepted when to his advantage, and 
that aroused his protest only when turned to his detriment. He may not 
profit by fraud at which he had connived. 3. To reject the polls of 
three precincts is not justifiable. 4. When an election is tainted with 
fraud, the proper remedy is a new election.
    . . . The proposal to change the result of an election by rejecting 
the poll of three precincts raises a question of fundamental importance 
that the House may usefully consider. It seems rarely if ever to have 
been fully discussed on its merits, either because involved with 
partisan considerations or because ignored. Yet resort to the device 
has become so frequent, its dangers are so manifest and manifold, it so 
lends itself to partisan abuse, that on an occasion when the issue is 
between two men of the same political faith, the House may well take 
advantage of the opportunity to declare, without suspicion of prejudice 
or bias, what it may deem to be the true rule. . . .
    The doctrine that there should be resort to other proof is laid 
down in numerous cases, but unfortunately they are silent as to what 
should be done if such proof is not available. For such a situation it 
seems to me the true rule should be that laid down by a majority of the 
committee in the congressional case of Curtin v. Yocum, in 1880:

         It will be seen from all the authorities that where a new 
     election can be held without injury it is the safest and most 
     equitable rule to declare the election void and refer the 
     question again to the people in all eases where there are a 
     greater number of illegal votes proven, but for whom they 
     voted does not appear, than the return majority of the 
     incumbent.

    Mr. Overstreet and Mr. Johnston concluded:

    If 11 cases or more of illegal registration were shown, and it was 
also shown that these men had voted for the contestee, or from all the 
circumstances it could be reasonably inferred that they did, these 
votes taken from the contestee would give contestant a plurality.
    If contestant could have proven these illegal registrations, what 
is the necessity of disfranchising hundreds of honest voters?
    The majority committee report states that there are 316 eases of 
illegal registration on prima facie evidence. We deny this, but, if 
that is so, and

[[Page 1343]]

they could show that more than 11 cast their votes for contestee, 
contestant would be elected, and no honest voter would be 
disfranchised.
    The action of the committee is indefensible for the reason that 
hundreds of honest voters are disfranchised on insufficient evidence of 
illegal registration, whereas if only a few eases were proven 
conclusively the same result could be obtained. . . .
    The majority report would seem to indicate that the contestee 
should have proven that he was elected.
    It says that he could have easily brought hundreds of men in to 
show that they voted for him.

    It is a new doctrine that the burden of the proof is on the 
contestee. The burden is absolutely on the contestant, and it does not 
shift. There was no responsibility on contestee to bring any of these 
men to the hearing. If contestant could not prove his ease, there was 
no obligation, legal or moral, on part of contestee to help him, and it 
should not be lost sight of that Mr. Tague has never appealed to the 
election officials or courts of Massachusetts for redress, contenting 
himself from the start with the statement that he would fight his case 
out on the floor of Congress. It is unbelievable that a State like 
Massachusetts would permit such practices as Mr. Tague alleges without 
proper means of redress.
    Upon such flimsy evidence as this Mr. Tague's whole case rests. He 
has not proved a single one of the charges made by him or made in the 
brief and argument of his counsel. Both of them charged the various 
election officials in Massachusetts who had anything to do with the 
case with crookedness and wrongdoing, to Mr. Tague's disadvantage, yet 
every member of the committee is satisfied that these officials acted 
fairly and conscientiously in the performance of their duties. The 
committee was told by Mr. Tague and his counsel that hundreds of 
ballots would be found upon which a spurious sticker had been placed, 
yet not one was found. No effort has been made by him as far as the 
official records show to purge the ward 5 voting lists of any one of 
these so-called illegal voters.
    Instead, Mr. Tague himself, according to the uncontradicted 
testimony at the hearings of this case, stands convicted of using his 
own home and his mother's home for what he terms fraudulent 
registration.
    On page 642 is the testimony of Patrick F. Goggin, a captain in the 
Boston fire department, who admitted under oath that he registered from 
Mr. Tague's own home, 21 Monument Square, Charlestown, Mass., for 
voting purposes, while his wife and four children were living in 
Somerville since 1914.
    On page 647 of the evidence is the statement of Martin Turnbull, 
cousin of Mr. Tague, who admitted that he registered from Mrs. Tague's 
home (Mr. Tague's mother) on Corey Street, Charlestown, Mass., while 
his wife and little girl lived in Somerville.
    On page 568, his counsel, Mr. Joseph P. O'Connell, admitted that he 
lived in Brookline, which was his address in the directory at the time 
he was elected from Boston to the constitutional convention two years 
ago.

[[Page 1344]]

    Yet these are the men who want this Congress to disfranchise more 
than 1,000 American citizens for the very thing they were doing 
themselves in order to give Mr. Tague the seat in Congress now held by 
Mr. Fitzgerald.
    Mr. Tague was twice elected under the same conditions he now 
condemns. Even in this contest he sought the support of the political 
organization which he now charges with colonization, and only when he 
was refused support did he begin to complain. In our judgment he is by 
his conduct estopped.
    In conclusion, we submit that the whole case of the contestant 
rests on allegations and assertions with no substantial proof and that 
the misstatements made by him in connection with the ballots justifies 
us in rejecting his uncorroborated testimony about illegal 
registration.
    We therefore submit for the action of the House the following 
resolution [H. Res. 356] in lieu of the resolution offered by the 
majority of the committee:

         Resolved, That John F. Fitzgerald was duly elected a 
     Member of the House of Representatives from the tenth 
     congressional district of the State of Massachusetts in this 
     Congress, and is entitled to a seat therein.

    On Oct. 23, 1919, Mr. Goodall, by direction of the Committee on 
Elections No. 2, submitted House Resolution 355:

         Resolved, That John F. Fitzgerald was not elected a 
     Member of the House of Representatives from the tenth 
     congressional district of the State of Massachusetts in this 
     Congress and is not entitled to retain a seat herein.

    2. That Peter F. Tague was duly elected a Member of the House of 
Representatives from the tenth congressional district of the State of 
Massachusetts in this Congress and is entitled to a seat herein.

    Debate on this resolution was by unanimous consent extended to four 
and one-half hours, two hours to be controlled by Mr. Overstreet, 45 
minutes by Mr. Luce, and the remaining time to be controlled by Mr. 
Goodall with permission for him to yield to contestant for debate. The 
previous question was to be considered as ordered on all resolutions 
offered. After debate, Mr. Overstreet submitted and then withdrew his 
resolution (H. Res. 356) declaring contestee elected and entitled to 
retain his seat. Thereupon Mr. Luce offered House Resolution 357 as a 
substitute for House Resolution 355:

    Resolved, That neither Peter F. Tague nor John F. Fitzgerald was 
duly elected a Member of this House from the tenth congressional 
district of Massachusetts on the 5th day of November, 1918, and that 
the seat now occupied by the said John F. Fitzgerald be declared 
vacant.

[[Page 1345]]

    This substitute resolution was disagreed to by division vote, 46-
167. House Resolution 357 was thereupon divided for the vote, and both 
parts were agreed to by voice vote. [H. Jour. 528, 66th Cong. 1st 
Sess.]

Sec. 2.2 Carney v Berger, 5th Congressional District of Wisconsin.

    Qualifications of Member.--A Member-elect having been excluded from 
seat, after investigation by a special House committee, as not 
qualified under section 3 of the 14th amendment of the U.S. 
Constitution (for having given aid or comfort to enemies of the U.S. 
Government after having taken an oath of office as a Member of a prior 
Congress), an elections committee concurred in such findings of 
disqualification.
    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on Oct. 24, 1919.
    On May 19, 1919, at the organization of the House of 
Representatives of the Sixty-sixth Congress, Mr. Frederick W. 
Dallinger, of Massachusetts, objected to the administration of the oath 
of office to Victor L. Berger and offered the following resolution (H. 
Res. 6), which was agreed to [58 Cong. Rec. 9, 66th Cong. 1st Sess; H. 
Jour. 7]

    Whereas it is charged that Victor L. Berger, a Representative-elect 
to the Sixty-sixth Congress from the State of Wisconsin, is ineligible 
to a seat in the House of Representatives; and
    Whereas such charge is made through a Member of the House, and on 
his responsibility as such a Member, and on the basis, as he asserts, 
of public records and papers evidencing such an ineligibility:

    Resolved, That the question of the prima facie right of Victor L. 
Berger to be sworn in as a Representative of the State of Wisconsin of 
the Sixty-sixth Congress, as well as of his final right to a seat 
therein as such Representative, be referred to a special committee of 
nine Members of the House, to be appointed by the Speaker; and until 
such committee shall report upon and the House decide such question and 
right, the said Victor L. Berger shall not be sworn in or be permitted 
to occupy a seat in this House; and said committee shall have power to 
send for persons and papers and examine witnesses on oath relative to 
the subject matter of this resolution.

(Adoption of the above resolution was vacated by unanimous consent on 
June 10, 1919, and the resolution was then amended to incorporate the 
initial ``L'' wherever it appears above and readopted.)

    Pursuant to House Resolution 6, the select committee after thorough 
investigation reported the following resolution (H. Res. 380), which 
was agreed to by the House on Nov. 10, 1919 (311 yeas to 1

[[Page 1346]]

nay), after extended debate, and which provided [58 Cong. Rec. 8261, 
8262, 66th Cong. 1st Sess.; H. Jour. 571]:

    Resolved, That under the facts and circumstances of this case, 
Victor L. Berger is not entitled to take the oath of office as a 
Representative in this House from the fifth congressional district of 
the State of Wisconsin or to hold a seat therein as such 
Representative.

    Immediately upon the adoption of House Resolution 380, Mr. 
Dallinger called up House Resolution 384 from the Committee on 
Elections No. 1.

                             Report No. 414

                Contested Election Case, Carney v Berger

                          i. findings of fact

    At the election held in the fifth congressional district of the 
State of Wisconsin on November 5, 1918, Victor L. Berger, the 
contestee, who was the Socialist candidate, received 17,920 votes; 
Joseph P. Carney, the contestant, who was the Democratic candidate, 
received 12,450 votes, and William H. Stafford, who was the Republican 
candidate, received 10,678 votes. No question is raised in this case as 
to the regularity of the election or the correctness of the election 
returns.
    Victor L. Berger, the contestee, previously had been elected to 
Congress as a Socialist to the Sixty-second Congress in 1910 and had 
taken the usual oath of a Member of Congress to support the 
Constitution of the United States.
    On October 3, 1917, the second-class mailing privilege of the 
Milwaukee Leader, of which Victor L. Berger, the contestee, was editor 
in chief, and for the publication of which he was responsible, was 
revoked by the Postmaster General of the United States for a violation 
of the provisions of sections 1 and 2 of Title 12 of the act of June 
15, 1917, commonly known as the Espionage Act. This action was taken as 
a result of the publication of a series of articles evidently printed 
in a spirit of hostility to our Government and with the apparent 
purpose of hindering and embarrassing the Government in the prosecution 
of the war.
    On February 2, 1918, the contestee, Victor L. Berger, together with 
Adolph Germer, J. Louis Engdahl, William F. Kruse, and Irwin St. John 
Tucker, were indicted by the grand jury in the District Court of the 
United States for the Northern District of Illinois, for a violation of 
sections 3 and 4 of Title 7 of the Espionage Act.
    Both of the above facts, as well as the continued activities of the 
contestee, both as a member of the national executive committee of the 
Socialist Party and as editor in chief of the Milwaukee Leader, were 
well known to the voters of the fifth congressional district of the 
State of Wisconsin at the election held on November 5, 1918.

[[Page 1347]]

    Subsequent to the election, Victor L. Berger, the contestee, and 
his codefendants were tried before Judge Landis and a Federal jury at 
Chicago, and on January 8, 1919, were found guilty as charged in the 
indictment. On February 20, 1919, the contestee was sentenced to 20 
years imprisonment in the Federal Prison at Leavenworth, Kans. An 
appeal was taken by the contestee to the United States Circuit Court of 
Appeals for the Seventh District, which appeal is still pending.
    After careful consideration of all the evidence introduced at the 
Chicago trial, in addition to the testimony submitted to your 
committee, your committee concurs with the opinion of the special 
committee appointed under House resolution No. 6, that Victor L. 
Berger, the contestee, did obstruct, hinder, and embarrass the 
Government of the United States in the prosecution of the war and did 
give aid and comfort to its enemies.

                    ii. law applicable, to the case

    There are two questions of law before your committee: First, Is 
Victor L. Berger, the contestee, entitled to the seat to which he was 
elected? and second, if not, Is Joseph P. Carney, the Democratic 
contestant, who received the next highest number of votes, entitled to 
the seat?
    In regard to the first question, your committee concurs with the 
opinion of the special committee appointed under House resolution No. 
6, that Victor L. Berger, the contestee, because of his disloyalty, is 
not entitled to the seat to which he was elected, but that in 
accordance with the unbroken precedents of the House, he should be 
excluded from membership; and further, that having previously taken an 
oath as a member of Congress to support the Constitution of the United 
States, and having subsequently given aid and comfort to the enemies of 
the United States during the World War, he is absolutely ineligible to 
membership in the House of Representatives under section 3 of the 
fourteenth amendment to the Constitution of the United States.

    Contestant.--An unsuccessful candidate who had not received a 
plurality of votes cast was held not entitled to the seat upon 
exclusion of contestee, as English Parliament and state court decisions 
and opinion of an individual member of a former elections committee to 
the contrary are not precedents binding on the House.
    Report recommending contestant not entitled to seat and 
recommending declaration of vacancy. Contestant not seated and vacancy 
declared by the House.

    In regard to the second question, your committee is of the opinion 
that Joseph P. Carney, the Democratic contestant, is not entitled to 
the seat.
    The only congressional precedent cited by counsel for the 
contestant is the case of Wallace v. Simpson in the Forty-first 
Congress. In this case neither the contestant nor the contestee were 
sworn in at the convening of the House of Representatives.

[[Page 1348]]

    The matter was referred to the Committee on Elections and a 
subcommittee of that committee unanimously reported in favor of the 
contestant. This report however was based on three grounds:
    First. That the ineligibility of the contestee involved the 
election of the contestant.
    Second. That the election was void in six of the nine counties and 
the contestant had a majority in those counties.
    Third. That if no counties were rejected, enough voters were 
prevented from voting by violence and intimidation to have given the 
majority in the district to the contestant if they had voted.
    The first proposition, which is the one on which counsel for the 
contestant in the present case relies, was agreed to only by Mr. 
Cassna, the chairman of the committee, who drew the report; Mr. Hale, 
agreed to the second and third propositions, and Mr. Randall to the 
third only. Under a rule of the House at that time a subcommittee was 
authorized to report directly to the House, and in this case the 
subcommittee recommended that the contestant be seated and the House 
accepted the report. (Rowell's Digest of Contested Election Cases, 
1790-1901, p. 245.)
    It is plainly evident, however, that the proposition that the 
ineligibility of the contestee involved the election of the contestant 
was simply the opinion of one member of the committee and did not 
establish a precedent for the House of Representatives. (Rowell's 
Digest of Contested Election Cases, 1790-1901, p. 220.)

    In the case of Smith v. Brown, in the Fortieth Congress, which is 
cited by counsel for the contestant on the preceding page of his brief, 
this question is discussed at great length. In that case Brown, the 
contestee, received 8,922 votes, whereas Smith the contestant received 
only 2,816 votes. The committee found that Brown, the contestee, had 
``voluntarily given aid, countenance, counsel, and encouragement to 
persons engaged in armed hostility to the United States'' and was 
therefore not entitled to take the oath of office or to be admitted to 
the House as a Representative from the State of Kentucky. Counsel for 
Smith, the contestant, claimed that it was a conclusion of law that 
when the candidate who had received the highest number of votes was 
ineligible and that the ineligibility was known by those voting for him 
before casting their votes, the votes thus cast for him should be 
thrown away and treated as if they were never cast, and that 
consequently the minority candidate should be declared elected.
    In support of this claim he called attention to a large number of 
cases in the Parliament and courts of Great Britain sustaining this 
doctrine. After calling attention to the fact that under the English 
practice public notice of the ineligibility of the candidate must be 
given to the electors at the time of the election, which was not done 
in the case at issue, the committee went on to state that it had been 
unable to find any such law regulating elections in this country in 
either branch of Congress or in any State legislature, and that an 
examination of the origin and history of the English rule would show 
the impossibility of its application to the American House of 
Representatives. (Reports of Committees, 2d sess. 40th Cong., Vol. I, 
Report No. 11, p. 6.) . . .

[[Page 1349]]

        congress not bound by state decisions in election cases

    In the present case counsel for the contestant cites as an 
authority the case of Bancroft v. Frear, in volume 144, page 79, of the 
Wisconsin Reports. In this case Frank T. Tucker, candidate for attorney 
general for the Republican nomination at the primary election held on 
September 6, 1910, died on September l, 1910, the fact of his death 
being published generally in the newspapers throughout the State. At 
the primary election, however, 63,482 votes were cast for him, although 
deceased, as against 58,196 for Levi H. Bancroft. Upon these facts, the 
Supreme Court of Wisconsin, by a vote of 4 to 3, decided that Bancroft, 
who received the next highest number of votes, was entitled to have his 
name placed upon the final election ballot as the Republican candidate 
for attorney general. As the minority of the court point out in their 
dissenting opinion, this decision overruled the well-established and 
traditional law of Wisconsin, as laid down in the case of State ex rel. 
Dunning v. Giles (144 Wis., p. 101).
    It is contended, however, by counsel for the contestant in the 
present case that Congress is bound by the laws of the States and 
inasmuch as the case of Bancroft v. Frear is now the law in the State 
of Wisconsin, that the House of Representatives is bound thereby, and 
that Joseph P. Carney, the Democratic contestant, is therefore entitled 
to a seat in the House. Such, however, in the opinion of your 
committee, is not the law.
    In the Mississippi contested election case of Lynch v. Chalmers, in 
the Forty-seventh Congress, it was determined by the House of 
Representatives that the House does not consider itself actually bound 
by the construction which a State court puts on the State law 
regulating the times, places, and manner of holding elections and that 
the courts of the State have nothing to do with judging elections, 
qualifications, and returns of Representatives in Congress. (Hinds' 
Precedents, vol. 2, p. 264.) . . .

                            iii. conclusion

    Your committee, upon all the law and the evidence, is of the 
opinion that, first, Victor L. Berger, the contestee, is not entitled 
to the seat to which he was elected; and, second, that Joseph P. 
Carney, the Democratic contestant, who received the next highest number 
of votes, is not entitled to the seat. Inasmuch as the special 
committee appointed under authority of House resolution No. 6 has 
already recommended to the House a resolution declaring the contestee 
ineligible, it is not necessary for your Committee on Elections No. 1 
to make a similar recommendation. The committee, however, does 
recommend the adoption of the following resolutions:

         Resolved, That Joseph P. Carney, not having received a 
     plurality of the votes cast for Representative in this House 
     from the fifth congressional district of Wisconsin, is not 
     entitled to a seat therein as such Representative.
         Resolved, That the Speaker be directed to notify the 
     governor of Wisconsin that a vacancy exists in the 
     representation in this House from the fifth congressional 
     district of Wisconsin.

[[Page 1350]]

    Reported privileged resolution (H. Res. 384) agreed to after brief 
debate by voice vote [58 Cong. Rec. 8262, 66th Cong. 1st Sess., Nov. 
10, 1919; H. Jour. 572].

Sec. 2.3 Memorial of Albert L. Reeves (Reeves v Bland), 5th 
     Congressional District of Missouri.

    Notice of contest was not served within required time and delay not 
excusable; therefore petition by defeated candidate alleging election 
fraud denied by committee after Federal Appeals Court had restrained 
petitioner from proceeding with statutory contest. Committee report 
laid on table after stricken from House calendar, and laid on table. 
Seated Member retained seat.
    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on Nov. 7, 1919, follows:

                             Report No. 449

             Memorial of Albert L. Reeves (Reeves v Bland)

    The Committee on Elections No. 1, to which was referred the 
memorial of Albert L. Reeves praying for an investigation of the 
conduct of the election of a Representative in Congress from the fifth 
congressional district of Missouri, having completed its investigation 
and consideration of the same, respectfully submits herewith its report 
to the House of Representatives.
    The memorial with the accompanying exhibits will be found in full 
on pages 38 to 134, inclusive, of the printed hearings. Its allegations 
may be briefly summarized as follows:
    1. That at the election held November 5, 1918, according to the 
returns William T. Bland, the Democratic candidate for Congress from 
the fifth congressional district of Missouri, received 31,571 votes, 
and Albert L. Reeves, the Republican candidate, received 18,550 votes.
    2. That the Democratic candidate, William T. Bland, was declared 
duly elected and on November 19, 1918, the secretary of state issued to 
him a certificate of election.
    3. That the Republican candidate, Albert L. Reeves, believing that 
wholesale frauds had been perpetrated at the election in the interest 
of the Democratic candidate, prepared a notice of contest and 
complaint, but neither he nor his attorneys were able to procure 
service of said notice of contest upon William T. Bland, the contestee, 
for the reasons that the latter absented himself from the district and 
State during--

     practically the entire 30-day period immediately following 
     the issuance of the certificate of election; that he had 
     caused his office to be closed and his whereabouts concealed 
     from the contestant until after the time prescribed by law 
     within which to serve such notice had expired and until 18 
     days thereafter, to wit, January 6, 1919, upon which day the 
     contestant, his attorneys and agents, located the said 
     William T. Bland at San Diego, Calif., and then

[[Page 1351]]

     and there served upon him a copy of said notice of contest 
     and complaint.

    4. That on January 29, 1919, William T. Bland filed a petition in 
the circuit court of Jackson County, Mo., praying for an order 
enjoining the said Albert L. Reeves from taking any steps as contestant 
pursuant to said notice. The case was transferred to the United States 
District Court for the Western District of Missouri, which, on February 
6, 1919, denied the injunction.
    5. That on February 7, 1919, Albert L. Reeves served notice upon 
William T. Bland of his intention to take depositions in accordance 
with the statutes, beginning February 13, 1919. Thereupon William T. 
Bland took an appeal to the United States Circuit Court of Appeals of 
the Eighth Circuit, which, on February 10, 1919, granted a temporary 
restraining order enjoining Reeves from further proceeding in said 
contest.

    6. That abundant testimony is obtainable to sustain the allegations 
of fraud set forth in the notice of contest and complaint.
    Hearings were held by your committee on June 9 and 10, 1919, at 
which the petitioner, Albert L. Reeves, was represented by David M. 
Proctor, Esq., and Charles C. Madison, Esq., and the respondent, 
William T. Bland, was represented by J. G. L. Harvey, Esq.

                          i. findings of fact

    Your committee finds the facts in this case to be as follows: 
According to the face of the returns William T. Bland, Democrat, 
received 31,571 votes and Albert L. Reeves, Republican, received 18,550 
votes, and on November 19, 1918, the secretary of state declared 
William T. Bland to be duly elected as Member of Congress from the 
fifth district of the State of Missouri and issued to him a certificate 
of election.
    William T. Bland remained at his home in Kansas City from November 
5, 1918, until November 27, when he went to Memphis, Tenn., to visit 
his son who was a pilot in the Aviation Service of the Government. On 
December 3 he went to Washington, D.C., and from there returned to 
Kansas City by way of Memphis, reaching home on December 13, where he 
remained until December 23, when he left for California on account of 
his wife's health. During all the time he was away from home he was in 
constant touch with his office, No. 608 Ridge Arcade, and all important 
mail was forwarded to him from there. There was no evidence of any 
attempt on his part to conceal his whereabouts or to prevent the 
service upon him of any legal paper. Moreover, during the entire period 
from November 19, 1918, to December 19, 1918, he had no intimation that 
his election was to be contested.
    Mr. David M. Proctor, one of the attorneys for Albert L. Reeves, 
admitted at the hearings that the notice of contest in the case was not 
prepared until December 22, 1918, so that it could not have been served 
upon Mr. Bland between November 19 and December 19, even if Mr. Bland 
had remained in Kansas City during the entire period.

[[Page 1352]]

    The petitioner, Albert L. Reeves, was enjoined from taking any 
testimony by order of the United States circuit court of appeals, the 
course of the judicial proceedings being accurately stated in the 
memorial.
    At the hearings before your committee, counsel for the petitioner 
presented a large number of sworn affidavits, together with statements 
and letters from citizens of Kansas City and numerous editorials and 
articles from local newspapers, which indicate the undoubted existence 
of deliberate and widespread frauds in many of the wards in Kansas City 
at the election held on November 5, 1918. These frauds consisted of 
fraudulent registration, repeating, intimidation, and intentional 
wrongful counting of ballots.

                   ii. the law applicable to the case

    Section 105 of the Revised Statutes of the United States provides 
as follows:

         Whenever any person intends to contest an election of any 
     Member of the House of Representatives of the United States 
     he shall, within thirty days after the result of such 
     election shall have been determined by the officer or board 
     of canvassers authorized by law to determine the same, give 
     notice, in writing, to the Member whose seat he designs to 
     contest, of his intention to contest the same, and, in such 
     notice, shall specify particularly the grounds upon which he 
     relies in the contest.

    While it is true that paragraph 5 for section 5 of Article I of the 
Constitution of the United States provides that ``each House shall be 
the judge of the elections, returns, and qualifications of its own 
Members,'' nevertheless the House of Representatives has never 
disregarded the provisions of the act of Congress above quoted 
prescribing the method in which contested-election cases must be 
conducted, except for cause. In the case of McLean v. Bowman in the 
Sixty-second Congress (Moore's Digest of Contested Election Cases, 
1901-1917, p. 54), the Committee on Elections No. 1, in its report, 
asserted that ``the statute was merely directory and was intended to 
promote the prompt institution of contests and to establish a wholesome 
rule not to be departed from except for cause,'' but at the same time 
held that the excuse of sickness did not justify the contestant in not 
serving his notice of contest within the 30 days required by the 
statute and that he had lost his rights. Inasmuch, however, as the 
contestee in that case had permitted the taking of testimony, the 
reference of the case to the committee, and its hearing and argument 
before the committee, it was held that he was in no position to object 
to such a consideration of the record as would determine in the public 
interest whether or not he was entitled to a seat in the House. As a 
matter of fact the committee found on the record in the case such fraud 
and corruption on the part of the contestee or his agents at the 
election that it brought in a resolution declaring the contestee not 
elected.
    In the present case the evidence shows that the petitioner and 
would-be contestant Albert L. Reeves did not sign the notice of contest 
until December 31, 1918, which was 12 days after the 30-day period 
prescribed by the stat

[[Page 1353]]

ute had expired. (See p. 54 of printed record.) Moreover, the evidence 
further shows that the notice was not even prepared by Mr. Reeves's 
counsel until December 22, or 3 days after the statutory period had 
expired. (See p. 181 of printed record.) In this case, therefore, there 
was no excuse for noncompliance with the plain provision of the 
statute.

                            iii. conclusion

    As has already been stated a mass of ex parte testimony was before 
your committee indicating extensive and widespread frauds in many of 
the wards in Kansas City at the last State election and your committee 
has been strongly urged by the newspaper press, by various nonpartisan 
civic bodies and by numerous citizens of Kansas City of both political 
parties to report a resolution providing for an investigation de novo 
of the election in the fifth Missouri district. If the facts alleged in 
the memorial were true and the petitioner, Albert L. Reeves, had been 
prevented from serving the notice required by law by the action of the 
sitting Member, Mr. Bland, your committee might have seen its way clear 
to report a resolution for an investigation of the conduct of this 
election.
    It is to be regretted that the plain provisions of the statute 
regulating the election contests were not complied with by the 
petitioner in this case. The committee is earnestly desirous of 
preventing, so far as it is possible for it to do, the existence and 
repetition of any such fraud and wanton disregard of law as the ex 
parte testimony in this case indicates was practiced in some of the 
Kansas City wards at the election on November 5, 1918.
    Much of such conduct which is fundamentally destructive of a 
representative Government must be dealt with by the conscience, 
judgment, and power of the community itself and by the courts of the 
State, but as facts may be brought before the committee, within the 
time and in the manner provided by law, the committee will always 
endeavor to prevent any one from enjoying the fruits of such wrong. 
Under the circumstances, however, although viewing with the deepest 
concern the charges of wholesale frauds practiced at the last election 
in Kansas City, we do not feel justified in granting the prayer in the 
memorial and therefore report that no action is necessary thereon.

    Privileged committee report, referred to House Calendar (Nov. 7, 
1919), stricken from calendar and laid on table by unanimous consent 
[58 Cong. Rec. 8350, 66th Cong. 1st Sess., Nov. 11, 1919; H. Jour. 
575].

Sec. 2.4  Salts or Major, 7th Congressional District of Missouri.

    Ballots, where available as best evidence, were examined and 
recounted by an elections committee, while remaining partial recount 
was based upon secondary evidence where ballots were not available.
    Returns were not rejected in precincts where tally sheets were 
irregularly altered by election officials to correct errors, absent 
fraud.

[[Page 1354]]

    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on May 11, 1920, follows:

                             Report No. 961

                 Contested Election Case, Salts v Major

                         statement of the case

    At the election held in the seventh congressional district of the 
State of Missouri on November 5, 1918, according to the official 
returns, Sam C. Major, the contestee, who was the Democratic candidate, 
received 20,300 votes; and James D. Salts, the contestant, who was the 
Republican candidate, received 20,222 votes. As a result of these 
returns, Sam C. Major, the contestee, was declared elected by a 
plurality of 78 votes over his Republican opponent, James D. Salts, and 
a certificate of election was duly issued to him by the secretary of 
state of Missouri. . . .
    First: that there was a fraudulent alteration of the tally sheet 
and official record of the vote as to the candidates for Congress in 
the second ward of the city of Sedalia, in Pettis County, whereby 40 
tallies were taken from the vote of the contestant and 40 tallies added 
to the vote of the contestee, making a change in the net result of the 
vote amounting to 80 votes favorable to the contestee and unfavorable 
to the contestant, and that, therefore, the contestant should be 
credited with 40 additional votes and that the vote of the contestee 
should be reduced by 40 votes.
    Second: that a mistake was made in the tabulation of the vote in 
Boone Township in Green County, whereby through inadvertence and 
oversight on the part of the judges of election, the contestant was not 
given 37 votes to which he was lawfully entitled and that, therefore, 
he should be credited with 37 additional votes.
    In his brief, the contestant admits that the contestee is entitled 
to 6 additional votes in Bowling Green Township, in Pettis County, and 
to 2 additional votes in Sedalia Township in the same county. With 
these corrections in the official record, the contestant James D. Salts 
claims that he was elected by a plurality of 31 votes over the 
contestee Sam C. Major.
    On January 16, 1919, the contestee served on the contestant an 
answer denying all the allegations contained in the contestant's notice 
and making numerous allegations of irregularities in many voting 
precincts of the district. In the contestee's brief as filed with the 
committee, however, he relied entirely upon the claim that he was 
entitled to 6 additional votes in Bowling Green Township, in Pettis 
County, and to 2 additional votes in Precinct No. 1, in Sedalia 
Township in the same county, and upon the further claim that the entire 
vote of the fourth ward of the city of Springfield, in Green County, 
should be thrown out and not counted because of the fact that the 
election officials in that ward failed to place on the back of the 
ballots voted therein the registration number of the voters as required 
by the election laws of the State of Missouri.
    In this ward, according to the official returns, the contestant 
received 206 votes and the contestee 141 votes. The contestee, 
therefore, contended that

[[Page 1355]]

the official returns are correct with the exception of the eight 
additional votes before referred to, to which he claims that he was 
entitled; and with the further exception of the entire vote of the 
fourth ward of the city of Springfield which, according to his 
contention, should be entirely thrown out. The contestee therefore 
claims that he was duly elected by a plurality of 151 votes over the 
contestant.

                         work of the committee

    The testimony in the case having been printed, and printed briefs 
having been duly filed with the committee by both parties as well as a 
reply brief by the contestant, a hearing was given to the parties by 
your committee on Tuesday, March 16, 1920, at which oral arguments were 
presented by J. O. Patterson, Esq., in behalf of the contestant and by 
Frank M. McDavid, Esq., as counsel for the contestee.
    At the close of the hearing the committee, believing that the 
ballots themselves were the best evidence for determining what actually 
took place at the election, voted to request the Sergeant at Arms to 
send for the ballots, poll books, and tally sheets in Boone Township, 
in Green County, and in the second ward of the city of Sedalia in 
Pettis County. The county clerk of Pettis County reported that, in 
accordance with the election law of the State of Missouri, he had 
destroyed all ballots cast at the election held November 5, 1918, at 
the expiration of one year from the date thereof. The county clerk of 
Green County, however, in accordance with the Sergeant at Arms' 
request, sent the ballots, poll book, and tally sheet in the case of 
Boone Township, and on Wednesday, April 21, 1920, your committee 
counted the ballots cast in said township with the following result:

Total number of ballots cast...................................      488
                                                                ========
James D. Salts, Republican, received...........................      291
Sam C. Major, Democrat, received...............................      177
Jonathan H. Allison, Socialist, received.......................        4
Blank ballots..................................................       16
                                                                --------
        Total..................................................      488
------------------------------------------------------------------------

    According to the original official count in this township James D. 
Salts, Republican, received 259 votes and Sam C. Major, Democrat, 
received 175 votes. According to the recount of the committee, 
therefore, the contestant James D. Salts was entitled to 32 more votes 
than were credited to him by the official count, and the contestee Sam 
C. Major was entitled to 2 votes more than he was credited with on the 
official count, making a net gain for James D. Salts, the Republican 
contestant of 30 votes instead of the 37 which he claimed in his brief.

                            findings of fact

    Your committee therefore finds that the contestant James D. Salts 
is entitled to 32 additional votes in Boone Township, Green County; and 
that the

[[Page 1356]]

contestee Sam C. Major is entitled to 2 additional votes in Boone 
Township, in Green County; to 2 additional votes in Sedalia Township, 
and to 6 additional votes in Bowling Green Township, both of which are 
in Pettis County, making in all 10 additional votes.
    In regard to the vote in the second ward of the city of Sedalia, in 
Pettis County, where the contestant claims 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.
    That the alterations in the tally sheet were honestly made to 
correct a mistake is corroborated by the further testimony that Mr. 
Major, the Democratic candidate for Congress, ran ahead of his ticket 
in that ward, and received a good many Republican votes. This testimony 
is, in turn, supported by the fact that the official returns in other 
parts of the district and the ballots in Boone Township, which were 
counted by your committee, show conclusively that the name of Mr. Salts 
was scratched on the Republican ticket and that Mr. Major, the 
Democratic candidate, received more votes than the regular Democratic 
ticket. 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.
    Your committee therefore finds that at the election held on 
November 5, 1918, in the seventh congressional district of the State of 
Missouri, Sam C. Major, the Democratic candidate, received 20,310 
votes, and that James D. Salts, the Republican candidate, received 
20,254 votes, and that, therefore, Sam C. Major, the Democratic 
candidate was duly elected over said James D. Salts by a plurality of 
56 votes.

    State election law.--An elections committee refused to consider 
contestee's allegation that a statute requiring placement of 
registration numbers on ballots violated the state constitution.

[[Page 1357]]

    State election law prohibiting the counting of ballots not 
containing registration numbers, though considered mandatory and 
sufficient to void entire returns of precinct where such ballots were 
cast, became a moot question where rejection of such returns would not 
change election result.
    Report for contestee, who retained seat.

 the question of the vote in 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 this case claims that this statute is 
unconstitutional, but the Committee on Elections No. 1 of this House 
said in its report in the case of Gerling v. Dunn, from the thirty-
eighth congressional district of the State of New York in the Sixty-
fifth Congress (65th Cong., 3d sess., Rept. No. 1074, p. 2):

         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 further claimed that the provision of the Missouri 
statute requiring the registration number of the voter to be placed 
upon each ballot by the election officers is a directory and not a 
mandatory provision, and that the voters of the fourth ward of the city 
of Springfield ought not to be deprived of their vote because of the 
failure on the part of the election officers to comply with this 
provision of the statute. Upon this point also the contention of the 
contestant is contrary to the well-established precedents of the House 
of Representatives.
    In the Alaska contested election ease of Wiekersham v. Sulzer, in 
the Sixty-fifth Congress, the whole question of mandatory and directory 
provi

[[Page 1358]]

sions of election statutes was discussed at length by the Committee on 
Elections No. 1 of that Congress. The committee in its report (65th 
Cong., 3d sess., Rept. No. 839, p. 6) said:

         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.

    In support of this doctrine the committee cited the cases of Miller 
v. Elliot, in the Fifty-second Congress (Rowell's Digest, p. 461), 
Thrasher v. Enloe, in the Fifty-third Congress (Rowell's Digest, p. 
487), and also quoted with approval the case of Horsefall v. School 
District (143 Mo., 542), in which the court lays down the well-
established law involved in this question, as follows:

         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.

    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.
    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.

                               conclusion

    Your committee, therefore, for the reasons hereinbefore stated, 
respectfully recommends to the House of Representatives the adoption of 
the following resolutions:

         Resolved, That James D. Salts was not elected a 
     Representative in this Congress from the seventh 
     congressional district of the State of Missouri and is not 
     entitled to a seat herein.

[[Page 1359]]

         Resolved, That Sam C. Major was duly elected a 
     Representative in this Congress from the seventh 
     congressional district of the State of Missouri and is 
     entitled to retain a seat herein.

    Privileged resolution (H. Res. 562) agreed to by voice vote after 
brief debate [59 Cong. Rec. 7231, 66th Cong. 2d Sess., May 18, 1920; H. 
Jour. 412].

Sec. 2.5 Bodenstab v Berger, 5th Congressional District of Wisconsin.

    Qualifications of Member.--A Member-elect having been elected to 
fill the vacancy caused by his initial exclusion from his seat and 
having again been excluded by the House as not qualified under section 
3 of the 14th amendment to the U.S. Constitution, an elections 
committee again concurred in such disqualification.

    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on Feb. 5, 1921, follows:

                            Report No. 1300

              Contested Election Case, Bodenstab v Berger

                          i. findings of fact

    At the regular election held in the fifth congressional district of 
the State of Wisconsin, on November 5, 1918, Victor L. Berger, the 
contestee, who was the Socialist candidate, received 17,920 votes; 
Joseph P. Carney, who was the Democratic candidate, received 12,450 
votes; and William H. Stafford, who was the Republican candidate, 
received 10,678 votes.
    No question was raised in that case as to the regularity of the 
election or the correctness of the election returns.
    Objection, however, was made on the floor of the House to the 
swearing in of Victor L. Berger, the contestee, when he presented 
himself with his certificate of election, and the question of his 
eligibility to a seat in the House was referred to a special committee, 
which was appointed by the Speaker May 21, 1919.
    After an exhaustive investigation this special committee, on 
October 24, 1919, submitted its report to the House of Representatives, 
which report was printed as Report No. 413 of the first session of the 
Sixty-sixth Congress. After a long debate, in the course of which 
Victor L. Berger, the contestee, was given every opportunity to speak 
in his own behalf, the House of Representatives on November 10, 1919, 
by a vote of 311 to 1 on a roll call, adopted the following resolution:

         Resolved, That under the facts and circumstances of this 
     case, Victor L. Berger is not entitled to take the oath of 
     office as a Representative in this House from the fifth 
     congressional district of the State of Wisconsin or to hold a 
     seat therein as such Representative. [Congressional Record, 
     Sixty-sixth Congress, first session, p. 8727.]

[[Page 1360]]

    The ground upon which the committee made its report and upon which 
the House adopted the above resolution recommended by the committee was 
that Victor L. Berger, the contestee, was ineligible under the 
fourteenth amendment to the Constitution of the United States to 
membership in the House of Representatives for the reason that having 
been previously elected to the Sixty-second Congress in 1910 and having 
taken the usual oath of a Member of Congress to support the 
Constitution of the United States, he had subsequently given aid and 
comfort to the enemies of the United States during the War with 
Germany.
    Shortly after the appointment of the special committee above 
referred to, the contested-election case of Joseph P. Carney v. Victor 
L. Berger, from the fifth congressional district of the State of 
Wisconsin, was duly referred to the Committee on Elections No. 1, and 
this committee, after a careful investigation, on October 24, 1919, 
submitted its report to the House of Representatives, which report is 
printed as Report No. 414 of the first session of the Sixty-sixth 
Congress. In this report the Committee on Elections No. 1 concurred in 
the findings of the report of the special committee, that Victor L. 
Berger, the contestee, was not entitled to the seat to which he was 
elected on the face of the returns, and also found that Joseph P. 
Carney, his Democratic contestant, who received the next highest number 
of votes, was not entitled to the seat, the committee recommending the 
adoption of the following resolution, which was adopted by the House of 
Representatives on November 10, 1919, without a division:

         Resolved, That Joseph P. Carney, not having received a 
     plurality of the votes cast for Representative in this House 
     from the fifth congressional district of the State of 
     Wisconsin, is not entitled to a seat therein as such 
     Representative.
         Resolved, That the Speaker be directed to notify the 
     governor of Wisconsin that a vacancy exists in the 
     representation in this House from the fifth congressional 
     district of Wisconsin. [Congressional Record, Sixty-sixth 
     Congress, first session, p. 8728.]

    Subsequently the governor of Wisconsin called a special election to 
fill the vacancy from the fifth congressional district of the State of 
Wisconsin.
    At this special election, held in the fifth congressional district 
of the State of Wisconsin on December 19, 1919, Victor L. Berger, the 
contestee, who was the Socialist candidate, received 24,350 votes and 
the contestant, Henry H. Bodenstab, who was the Republican candidate 
and endorsed by the Democratic Party, received 19,566 votes.
    No question was raised in this case as to the regularity of the 
election or the correctness of the election returns.
    When the contestee, Victor L. Berger, to whom a certificate of 
election had been issued, appeared to take the oath of office on 
January 10, 1920, the House of Representatives adopted the following 
resolution on a roll call by a vote of 330 to 6:

         Whereas Victor L. Berger, at the special session of the 
     Sixty-sixth Congress, presented his credentials as a 
     Representative

[[Page 1361]]

     elect to said Congress from the fifth congressional district 
     of the State of Wisconsin; and
         Whereas on November 10, 1919, the House of 
     Representatives, by a vote of 311 to 1, adopted a resolution 
     declaring that ``Victor L. Berger is not entitled to take the 
     oath of office as a Representative in this House from the 
     fifth congressional district of the State of Wisconsin or to 
     hold a seat therein as such Representative,'' by reason of 
     the fact that he had violated a law of the United States, 
     and, having previously taken an oath as a Member of Congress 
     to support the Constitution of the United States, had given 
     aid and comfort to the enemies of the United States, and for 
     other good and sufficient reasons; and
         Whereas the said Victor L. Berger now presents his 
     credentials to fill the vacancy caused by his own 
     ineligibility; and
         Whereas the same facts exist now which the House 
     determined made the said Victor L. Berger ineligible to a 
     seat in said House as a Representative from said district: 
     Now, therefore, be it
         Resolved, That by reason of the facts herein stated, and 
     by reason of the action of the House heretofore taken, the 
     said Victor L. Berger is hereby declared not entitled to a 
     seat in the Sixty-sixth Congress as a Representative from the 
     said fifth district of the State of Wisconsin and the House 
     declines to permit him to take the oath and qualify as such 
     Representative. [Congressional Record, Sixty-sixth Congress, 
     second session, p. 1399.]

    No action, however, was taken at that time upon the contested-
election case of Henry H. Bodenstab v. Victor L. Berger, for the reason 
that the pleadings required by statute had not at that time been 
completed, and the case, therefore, had not reached the House of 
Representatives. The testimony and briefs did not reach the Clerk of 
the House of Representatives and the case was not referred to your 
Committee on Elections No. 1 until shortly before the end of the second 
session of the Sixty-sixth Congress.
    Inasmuch as two committees of the House of Representatives have 
twice reported that Victor L. Berger, the contestee, is not eligible to 
membership in the House of Representatives, and inasmuch as the House 
of Representatives itself has twice, by an overwhelming vote, refused 
to seat the said Victor L. Berger, the contestee, on the ground that he 
is ineligible to membership therein, and inasmuch as there is no 
additional testimony in this case, your committee finds that Victor L. 
Berger, the contestee, is ineligible to membership in the House of 
Representatives, but recommends no resolution, for the reason that the 
House of Representatives has already finally determined that question 
so far as the present Congress is concerned.

    Contestant.--An unsuccessful candidate who had not received a 
plurality of votes cast in the special election was held not entitled 
to a seat upon exclusion of contestee, even though voters had notice of 
contestee's ineligibility, as precedents cited by contestant either 
were not binding on the House or were distinguishable on the facts.

[[Page 1362]]

    Majority report recommending contestant not entitled to seat.
    Minority views for contestant, who was not seated.

    This committee having previously reported in the case of Joseph P. 
Carney v. Victor L. Berger that Joseph P. Carney, the Democratic 
contestant, was not entitled to a seat in the House of Representatives 
for the reason that he did not receive a plurality of the votes cast in 
the district, the only question of fact that remains to be considered 
is whether the facts of the present case furnish any additional reason 
why this committee should reverse its former opinion and find that the 
Republican contestee, Henry H. Bodenstab, should be declared entitled 
to a seat in the House of Representatives.
    At the time of the regular election, on November 5, 1918, Victor L. 
Berger, the contestee, had been indicted by a grand jury in the 
District Court of the United States for the Northern District of 
Illinois, for violations of sections 3 and 4, title 7, of the espionage 
act. On the other hand, at the time of the special election held on the 
19th day of December, 1919, Victor L. Berger, the contestee; had been 
convicted of the crime for which he had been indicted by the United 
States District Court for the Northern District of Illinois, and had 
been sentenced to 20 years' imprisonment in the Federal prison at 
Leavenworth, Kans. Moreover, at the time of said special election 
Victor L. Berger, the contestee, had been declared ineligible to a seat 
in the House of Representatives by resolution adopted by the House of 
Representatives on November 10, 1919, to which reference has already 
been made. As a matter of fact, therefore, the voters of the fifth 
congressional district of the State of Wisconsin had notice of the fact 
that Victor L. Berger, the contestee, had been adjudged ineligible to a 
seat in the House of Representatives, and in spite of that fact 24,350 
legal voters of the district voted for him for the office of 
Representative in Congress.

                     ii. law applicable to the case

    In the previous contested-election case of Carney v. Berger, 
counsel for the contestant, Joseph P. Carney, cited as an authority the 
case of Bancroft v. Frear in volume 144, page 79 of the Wisconsin 
Reports, which case is also cited by the contestant in the present 
case. In that case Frank T. Tucker, candidate for attorney general for 
the Republican nomination at the primary election held on September 6, 
1910, died on September 1, 1910, the fact of his death being published 
generally in the newspapers throughout the State. At the primary 
election, however, 63,482 votes were cast for him, although deceased, 
as against 58,196 votes cast for Levi H. Bancroft. Upon these facts the 
Supreme Court of Wisconsin, by a vote of 4 to 3, decided that Levi H. 
Bancroft, who received the next highest number of votes, was entitled 
to have his name placed upon the final election ballot as the 
Republican candidate for attorney general. As the minority pointed out 
in their dissenting opinion, this decision overruled the well-
established and traditional law of Wisconsin as laid down in the case 
of State ex rel. Dunning v. Giles (144 Wis., 101).

[[Page 1363]]

    The only congressional precedent cited by counsel for the 
contestant in the case of Carney v. Berger is the case of Wallace v. 
Simpson, in the Forty-first Congress, which your committee found was no 
precedent at all, for the reason that only one of the members of the 
Committee on Elections in that case contended for the doctrine that the 
ineligibility of the contestee involved the election of the contestant, 
the case having been decided by a majority of the committee on other 
grounds. (Rowell's Digest of Contested Election Cases, 1790-1901, p. 
2450.)
    On the other hand, in the case of Smith v. Brown, in the Fortieth 
Congress, while the Committee on Elections at that time found that the 
doctrine that where a contestee receives a majority of the votes cast 
but is found to be ineligible, the candidate having the next highest 
number of votes is entitled to his seat, has been the prevailing 
doctrine in Great Britain, it never has been recognized by the United 
States House of Representatives. . . .
    The committee also found that precisely the same question was 
raised in the contested-election case of Maxwell v. Cannon in the 
Forty-third Congress; in the case of Campbell v. Cannon, in the Forty-
seventh Congress; and in the case of Lowry v. White, in the Fiftieth 
Congress; in all of which the Committee on Elections of the House of 
Representatives rejected the doctrine that where the candidate who 
received the highest number of votes is ineligible, the candidate 
receiving the next highest number of votes is entitled to the office.
    In the previous case of Carney v. Berger, your committee also 
considered very carefully the general question of whether Congress is 
bound by the law of the State in which the contest arises.
    After an exhaustive examination of the authorities, your committee 
came to the unanimous conclusion that where the law of a State in a 
matter of this kind is contrary to the unbroken precedents of the House 
of Representatives in election cases the congressional precedent must 
prevail, anything in the laws of the State or decisions of its supreme 
court to the contrary notwithstanding.
    While it is true that in the present case the voters of the fifth 
congressional district of Wisconsin can fairly be said to have had 
constructive notice of the fact that Victor L. Berger, the contestee, 
was ineligible to membership in the House of Representatives, which 
circumstance was lacking in the case of Carney v. Berger, nevertheless 
this additional fact offers no reason why your committee and the House 
of Representatives should allow a decision of the Supreme Court of 
Wisconsin or of any other State to override an unbroken line of 
congressional precedents and establish a new rule in determining 
contested-election cases in the Congress of the United States.
    In the present case counsel for the contestant cites as additional 
authority for seating the contestant, Henry H. Bodenstab, the case of 
McKee v. Young, in the Fortieth Congress, and asks that the 24,350 
votes returned as being cast for Victor L. Berger, the contestee, be 
thrown out as illegal votes, leaving the 19,566 votes cast for Henry H. 
Bodenstab, the contestant, as the only legal votes cast, which would 
result in a unanimous election for Mr. Bodenstab, the contestant. Your 
committee, however, fails to find any parallel between the present case 
and the case of McKee v. Young. In the latter

[[Page 1364]]

case the contestant claimed the right to the seat on the ground that 
the ineligibility of the majority candidate gave the seat to the person 
having the next highest number of votes. The Committee on Elections, 
however, overruled this contention in accordance with the unbroken 
practice of the House of Representatives. The contestant then claimed 
to have received a majority of the votes legally cast.
    There was evidence in that case tending to show that over 2,000 
returned Confederate soldiers voted for the contestee, although the 
specific proof only showed 752 by name. The contestant also claimed 
that the entire vote in certain election precincts should be thrown out 
on the ground that the officers of election in those precincts were 
returned Confederate soldiers. The majority of the committee held that 
the votes cast by the Confederate soldiers should be rejected on the 
ground that they were paroled prisoners not yet pardoned. The 
proclamation of amnesty issued by the President of the United States 
had expressly excepted ``all prisoners who left their homes within the 
jurisdiction and protection of the United States and passed beyond the 
Federal military lines into the pretended Confederates States for the 
purpose of aiding the rebellion.'' This necessarily applied to all 
Confederate soldiers from Kentucky, and, consequently, not having been 
pardoned they were still prisoners of war and had no more right to vote 
for representative in Congress than an enemy in the field. The majority 
of the committee also held that the congressional statute requiring the 
judges of election to be of opposite political parties and 
disqualifying rebel adherents from acting as election officers were 
mandatory and that the entire vote of the precincts where this act was 
violated should be rejected on the ground that no legal election had 
been held therein. Throwing out the entire vote of these precincts and 
the votes of the Confederate soldiers before referred to, the majority 
of the committee found that the contestant received a majority of the 
votes cast and was entitled to his seat. (See Rowell's Digest of 
Contested Election Cases, 1789 to 1901, pp. 222 to 224.)
    In the present case there was no evidence whatever submitted to 
your committee that a single one of the 24,350 votes cast for the 
contestee, Victor L. Berger, was illegal either because the voter had 
borne arms against the United States or had given aid and comfort to 
the enemy during the war with Germany. The contentions advanced by 
counsel for the contestee that all of the persons who voted for Victor 
L. Berger, the contestee, were as ineligible to cast their votes as the 
man for whom they voted was ineligible to a seat in the House of 
Representatives, or that they should be punished by being compelled to 
be represented in Congress by a person who was not the choice of the 
people of the district, are equally untenable.
    Upon this point your committee again calls the attention of the 
House to the clear and convincing statement of the Committee on 
Elections of the House of Representatives in its exhaustive report in 
the contested-election case of Smith v. Brown in the Fortieth Congress:

         As Congress, much less the House of Representatives, 
     never conceded, never having the power to concede, to a voter 
     his right to the ballot, neither can it take away, modify, or 
     limit it. Least

[[Page 1365]]

     of all can this body, the House alone, punish a voter for 
     ``obstinacy'' or ``perversity'' in the exercise of his right. 
     . . . It can not touch a voter or prescribe how he shall 
     vote, nor can it impose a penalty on him, much less 
     disfranchise him or say what shall be the effect or the power 
     of his ballot if it be cast in a particular way. The laws of 
     the State determine this. . . .
         As has been shown, Parliament did enact a law that votes 
     cast for one ineligible shall be treated as if not cast and 
     one having a minority of the votes be thus elected. But 
     neither has Congress nor Kentucky enacted any such law; much 
     less can this House alone by a resolution set it up, and that 
     too after the fact as a punishment for ``willful obstinacy 
     and misconduct.'' The right of representation is a sacred 
     right which can not be taken away from the majority. That 
     majority by perversely persisting in casting its vote for one 
     ineligible can lose its representation, but never the right 
     to representation while the Constitution and the State 
     government shall endure. [Reports of committees, 2d sess., 
     40th Cong., vol. 1, Rept. No. 11, p. 6. The italics are the 
     committee's.]

                            iii. conclusion

    Your committee therefore, upon all the law and the evidence, is of 
the opinion that while Victor L. Berger, the contestee, is not entitled 
to the seat to which he was elected at the special election held in the 
fifth congressional district of the State of Wisconsin on December 19, 
1919, and it has been so held by the resolution adopted by the House of 
Representatives on January 10, 1920, to which reference has already 
been made, neither is Henry H. Bodenstab, the contestant, entitled to a 
seat in the House of Representatives for the reasons already set forth. 
The committee therefore recommends the adoption of the following 
resolution (H. Res. 696):

         Resolved, That Henry H. Bodenstab, not having received a 
     plurality of the votes cast for Representative in this House 
     from the fifth congressional district of Wisconsin, is not 
     entitled to a seat therein as such Representative.

    The following minority views were submitted by Mr. Clifford E. 
Randall, of Wisconsin:

                            finding of facts

    The findings of fact as stated by the majority report of the 
committee are substantially correct and the repetition of such facts 
herein will serve no useful purpose.

                       law applicable to the case

    Under the so-called English rule, if the candidate at an election 
who receives the highest number of votes is ineligible and his 
disqualification is known to the electors, before they vote for him, 
their votes are to be consid

[[Page 1366]]

ered as thrown away and the candidates who receives the next highest 
number of votes shall be declared elected, if he be qualified. (Rex v. 
Parry, 14 East, 549, 104 Eng. Reprint, 712; Reg ex rel. Mackley v. 
Cook, 3 El. and Bl., 249, 118 Eng. Reprint, 1133; Rex v. Hawkins, 10 
East, 211, 103 Eng. Reprint, 755.)
    The English courts of law have unanimously held this rule to be the 
correct doctrine, and such principle has been declared by the uniform 
and unbroken current of decisions in the British Parliament from the 
earliest to the present time.
    The rule affirmed by the courts of the United States is that a 
majority or plurality of votes cast at a popular election for a person 
ineligible to the office for which such votes are cast, does not confer 
any right or title to the office upon such an ineligible candidate. 
Nevertheless the votes so cast will be effectual to prevent the 
election of an eligible person who received the next highest number of 
votes in the absence of proof of the fact that the votes cast for the 
ineligible candidate were given by the electors with the full knowledge 
or notice, either actual or constructive, of his ineligibility or 
disqualification.
    The precise question involved in this case has never been before 
the House of Representatives. The majority opinion refers to, relies 
upon, and quotes with approval several House decisions in election 
cases which are supposed to be inconsistent with the principles of law 
hereinbefore stated. Examination of these cases demonstrates clearly 
that in none of them was it established that the electors had knowledge 
of the ineligibility of the candidate voted for. . . .
    As hereinbefore stated, all the election cases cited by the 
majority and herein discussed, namely, Smith v. Brown (40th Cong.), 
McKee v. Young (40th Cong.), Maxwell v. Cannon (43d Cong.), Campbell v. 
Cannon (47th Cong.), and Lowry v. White (50th Cong.), as well as Carney 
v. Berger (66th Cong.), fail to establish that the electors had 
knowledge of the ineligibility of the candidates voted for. These cases 
are authority only for the rule that where the voters do not know of 
the disqualification the majority or plurality of the votes cast for a 
person ineligible to the office for which such votes are cast does not 
confer any right or title to the office upon such ineligible candidate, 
but are effectual to prevent the election of an eligible person who 
received the next highest number of votes and the election will be 
deemed a nullity.
    The testimony, exhibits, and facts in the case under consideration 
indisputably prove that the electors of the fifth congressional 
district of Wisconsin had actual knowledge of the ineligibility of 
Victor L. Berger. Prior to the election Mr. Berger had been convicted 
of a violation of the espionage act and sentenced to 20 years 
imprisonment at the Federal prison at Fort Leavenworth; and after 
extended hearings had been excluded from membership in the Sixty-sixth 
Congress by a record vote of 311 to 1. The calling by the governor of 
Wisconsin of the special election was notice in itself of Mr. Berger's 
ineligibility. The judgment of exclusion by the House was final and not 
subject to modification. Mr. Berger's campaign was one of defiance to 
the mandate of the House. Before the electors of the district he jeered 
this

[[Page 1367]]

judgment and designated it an insult to the electors and urged the 
voters to show their contempt and defiance of the action of the House 
of Representatives by voting for him at the special election. The sole 
issue in the campaign was his disqualification. The voters knew that if 
elected he would again be excluded from the Sixty-sixth Congress.
    Therefore, it is submitted that upon reason and authority the votes 
cast for Mr. Berger with full knowledge on the part of the voters that 
he was ineligible to serve as a Member of the House of Representatives 
ought to be considered as thrown away, and that the election was legal 
and that the qualified candidate, Mr. Bodenstab, receiving the highest 
number of votes and a majority of all votes cast for qualified 
candidates, was duly elected. It is conceded that a majority have a 
constitutional right to govern in this country, but it is not conceded 
that the majority of a congressional district may morally or willfully 
defeat the Government by refusing to elect a Member qualified to sit in 
the House of Representatives. In this case the majority of the electors 
had a right to elect a qualified person to the House of 
Representatives, but, having waived their right by voting for a person 
known to be disqualified, as much as though they had refused to vote at 
all, or had voted for a man known to be dead, the minority who complied 
with the Constitution by voting for a qualified candidate may well be 
held to have expressed the will of the people. If the majority, being 
called upon, will not vote, they can not complain that the election was 
decided by those who did not vote, though a minority of the electors; 
and voting for a person known to be disqualified is not voting. Such 
votes are void and are no votes.
    Therefore, the adoption of the following resolution is recommended:

         Resolved, That Henry H. Bodenstab was duly elected a 
     Member of Congress from the fifth congressional district of 
     Wisconsin to the Sixty-sixth Congress, on the 19th day of 
     December, 1919, and that he is entitled to a seat in the 
     House of Representatives as such Representative.

    The resolution that Mr. Bodenstab was not entitled to a seat (H. 
Res. 696) was reported as privileged by Mr. Dallinger. While it was 
pending Mr. Randall's substitute that Mr. Bodenstab was entitled to the 
seat, was defeated, 8 yeas to 307 nays, 1 present. Mr. Dallinger's 
resolution was then agreed to by voice vote [60 Cong. Rec. 3883, 66th 
Cong. 3d Sess., Feb. 25, 1921; H. Jour. 248].

Sec. 2.6 Wickersham v Sulzer and Grigsby, Territory of Alaska.

    Contestee's death prior to certification of election having caused 
the Territory Governor to call a special election to fill the vacancy, 
a new Delegate-elect was seated and substituted as contestee by the 
House.
    Evidence taken ex parte by contestant was held inadmissible, while 
the time for parties to take testimony was extended upon adoption by 
the House of a resolution, where death of contestee had prevented 
timely taking.

[[Page 1368]]

    Ballots cast at the general election were examined and completely 
recounted by an elections committee upon adoption by the House of a 
resolution authorizing the production of all ballots and returns from 
the general and special elections.
    Majority report of Committee on Elections No. 3 submitted by Mr. 
Cassius C. Dowell, of Iowa, on Feb. 12, 1921, follows:

                            Report No. 1319

        Contested Election Case, Wickersham v Sulzer and Grigsby

                         statement of the case

    At the general election held in Alaska on November 5, 1918, James 
Wickersham, the contestant herein, was the Republican candidate, and 
Charles A. Sulzer was the Democratic candidate, for Delegate to 
Congress. Francis Connolly was the Socialist candidate, but received 
only a few hundred votes.
    From the official count as reported by the canvassing board, 
Francis Connolly received 329 votes, Charles A. Sulzer 4,487 votes, 
James Wickersham 4,454 votes. Sulzer's plurality 33.
    Before the canvassing board had completed the canvass and announced 
the result, and on April 15, 1919, Charles A. Sulzer died. The 
canvassing board completed the canvas and declared the result on April 
17, 1919. and issued a certificate of election certifying the election 
of Charles A. Sulzer, which certificate was duly filed with the Clerk 
of the House of Representatives.
    The Legislature of Alaska passed an act providing for a special 
election to fill the vacancy caused by the death of Mr. Sulzer. This 
act was approved on April 28, 1919. Under this act the governor called 
a special election, which was held on June 3, 1919, at which special 
election James Wickersham was not a candidate, and George B. Grigsby 
received a majority of the votes cast, and the canvassing board on June 
14, 1919, issued a certificate of election to George B. Grigsby, the 
contestee herein, which certificate was filed on July 1, 1919, and he 
was sworn in and took his seat in the House of Representatives as such 
Delegate from Alaska on said date.
    After the death of Charles A. Sulzer, and after the certificate of 
election had been issued to him, James Wickersham, the contestant, on 
May 3, 1919, filed notice of contest with the Clerk of the House, and 
under this notice took some ex parte testimony in the case. Contestant 
also about June 23, 1919, served notice of contest on Mr. Grigsby, 
notifying him of his intention to contest the special election of June 
3 and also the election of Sulzer on November 5, 1918.
    The Committee on Elections, finding the testimony taken by 
contestant was ex parte, it therefore could not consider such evidence 
in the case. On account of the death of Sulzer and the contestant being 
unable to comply with the statute relative to notice and the taking of 
testimony on the 28th day of July, 1919, the House of Representatives 
passed a consolidating reso

[[Page 1369]]

lution extending the time for taking testimony for 90 days from the 
date of passing the resolution, and providing the manner of giving 
notice and taking the testimony, substituting George B. Grigsby in all 
necessary respects for Charles A. Sulzer, deceased, in this contest.

    On July 28, 1919, Mr. Dowell, by direction of the Committee on 
Elections No. 3, called up the following resolution:

    Resolved, (1) That the time for taking testimony in the contested-
election ease from Alaska, James Wickersham, contestant, wherein the 
contestee, Charles A. Sulzer, died on April 15, 1919, two days before 
the issuance of the certificate of election to said Sulzer, be, and the 
same is hereby, extended for 90 days from the date of the passage of 
this resolution; (2) that contestant, Wickersham, shall have the first 
40 days thereof in which to take his testimony, which shall be taken in 
the manner provided by the present statutes governing the taking of 
testimony in contested-election eases by notice served on George B. 
Grigsby, the successful candidate in the special Alaska election of 
June 3, 1919; (3) said George B. Grigsby shall have the next 40 days in 
which to take testimony in opposition to contestant's claim to the 
election of November 5, 1918, and in support of his own right shall be 
seated by virtue of said special election; (4) the contestant, 
Wickersham, to have the final 10 days in which to introduce rebuttal 
testimony in both elections; (5) that the governor of Alaska and the 
custodian of the election returns and attached ballots of the election 
of November 5, 1918, be, and he is hereby, commanded and required 
forthwith to forward by registered mail to the Clerk of the House of 
Representatives the whole of the election returns and all attached 
papers and ballots of the election of November 5, 1918, for inspection 
and consideration as evidence by the House of Representatives in said 
contested-election ease, (6) and if either the contestant or the 
successful candidate, said George B. Grigsby, at said special election 
of June 3, 1919, desires the returns of that election introduced in 
evidence, it shall be done under the same authority and in the same 
manner as is provided by this resolution for securing the returns of 
the election of November 5, 1918; (7) that any notice which contestant 
would be required to serve on said Sulzer if living, to take testimony 
of any witness mentioned herein, or to be called to sustain any 
allegation in contestant's case or any other notice which contestant 
might be required to serve on contestee, if living, shall be served 
with the same legal effect on the successful candidate, said George B. 
Grigsby, at the said special election; (8) and any notice which the 
successful candidate at said special election might find necessary to 
serve to present his case under either of said elections may be served 
on contestant; (9) that the Secretary of War be, and he is hereby, 
requested to order by telegraph immediately on the passage of this 
resolution that the 40 soldiers named and whose Army status is 
described in the certified list, dated June 11, 1919, signed by the War 
Department officials, and which list is attached to the application of 
contestant for the passage of this resolution, be assembled at the 
office of the commanding officer of the United States military cable 
and telegraph in the towns of Valdez, Sitka, and Fairbanks, Alaska, 
within the 40 days' period for taking testimony by the contestant,

[[Page 1370]]

then to be examined under oath by contestant or his attorney or agent 
touching the matters and things alleged in the notice and statement of 
contest on file in this House and in this cause, each to state 
specifically which candidate he voted for; and ( 10) the testimony of 
all witnesses shall be reduced to writing, signed by the witness, 
verified, and returned to the Clerk of the House of Representatives for 
use in these causes in the manner provided in the laws of the United 
States relating to contested elections as modified by this resolution.

    Reported privileged resolution [H. Res. 105 (H. Rept. No. 154)] 
amended and agreed to by voice vote [58 Cong. Rec. 3252, 66th Cong. 1st 
Sess., July 28, 1919; H. Jour. 338].

    Under this resolution both parties took testimony, which was fully 
submitted to the committee, and the committee has fully considered all 
of this evidence, including the arguments of counsel. The questions in 
this case are, first, the election on November 5, 1918, as between 
James Wickersham, contestant, and Charles A. Sulzer; second, the 
election of George B. Grigsby at the special election of June 3, 1919. 
The special election was to fill the vacancy caused by the death of 
Charles A. Sulzer, and in the event Sulzer was duly elected on the 5th 
of November, 1918, the question then turns to the objections contestant 
makes to the special election on June 3, 1919. In the event James 
Wickersham was elected on November 5, 1918, and not Charles A. Sulzer, 
there was no vacancy created by the death of Charles A. Sulzer and 
therefore no vacancy could be filled at the special election on June 3, 
1919.

    Territory election law, repealing the precinct residence 
requirement of the federal organic law, was held invalid.
    Suffrage.--Ballots cast by precinct nonresidents were held invalid.
    Federal election law setting the time for opening and closing of 
polls was held mandatory, voiding entire returns from precincts not 
complying.
    Federal election law required advance notice of election official's 
order changing polling places within an election precinct, and 
noncompliance in order to disfranchise qualified voters was held 
grounds for rejection of entire returns from such precincts.

                            rejected ballots

    One of the questions involved in this contest relates to some 40 or 
50 rejected ballots. The contestant contended that a proper canvass and 
counting of these rejected ballots should be made. The contestee made 
no objection to the canvass of these ballots, and the committee 
carefully examined and canvassed all of these ballots, which resulted 
in a gain to Mr. Wickersham of 2 votes and reduced the plurality of Mr. 
Sulzer over that of Mr. Wickersham 2 votes.

[[Page 1371]]

                  qualifications of electors in alaska

    In 1906, on May 7, Congress passed an act governing elections in 
Alaska. Section 3 of this act. being section 394, Compiled Laws of 
Alaska 1913, reads as follows:

         Sec. 394. All male (or female) citizens of the United 
     States 21 years of age and over who are actual and bona fide 
     residents of Alaska, and who have been such residents 
     continuously during the entire year immediately preceding the 
     election, and who have been such residents continuously for 
     thirty days next preceding the election in the precinct in 
     which they vote, shall be qualified to vote for the election 
     of a Delegate from Alaska.

    Under this act it is clear that no one can lawfully vote in Alaska 
for Delegate who is not (1) a citizen of the United States and 21 years 
of age; (2) an actual and bona fide resident of Alaska, and has been 
such resident continuously during the entire year immediately preceding 
the election and continuously for 30 days next preceding the election 
in the precinct in which they vote.
    On August 24, 1912, Congress passed an act creating a legislative 
assembly in Alaska, and in this act changed the time of election for 
Delegate to Congress from August to November, and provided that ``all 
of the provisions of the aforesaid act shall continue to be in full 
force and effect, and shall apply to the said election in every 
respect, as is now provided for the election to be held in the month of 
August therein.''
    Mr. Grigsby, as attorney general of Alaska, rendered an opinion to 
the Territorial governor, a member of the canvassing board, on February 
12, 1919, in the following language:

         I have to advise you that the legislature in attempting 
     to change the qualifications of voters by this act exceeded 
     its power, the qualifications having been fixed by the act of 
     May 7, 1906, and continued in full force and effect by the 
     organic act or constitution of Alaska. The organic act 
     expressly authorized the legislature to extend the elective 
     franchise to women, but in no other way authorized the 
     changing of the qualifications of electors by the 
     legislature.
         Respectfully submitted.

                              George B. Grigsby, Attorney General.    

    This, we think, is the correct interpretation of this law. The 
Territorial Legislature of Alaska attempted to modify this law by the 
enactment of a provision permitting electors to vote in any precinct in 
the judicial division of the Territory, thus ignoring the provisions of 
the congressional act which requires the actual and bona fide residence 
in Alaska for one year and such residence continuously for 30 days next 
preceding the election in the precinct in which they vote. In this 
respect the Territorial law is in direct conflict with the Federal 
statute. The Federal statute is incorporated into the

[[Page 1372]]

organic law of the Territory and, as stated by Mr. Grigsby as attorney 
general, can not be set aside by an act of the Legislature of Alaska.
    The evidence discloses that 21 persons voted at the election on 
November 5, 1918, for Charles A. Sulzer in precincts in which they were 
not bona fide residents, a few of whom were not entitled to vote at all 
because of nonresidence or noncitizenship in the Territory, and your 
committee finds that 21 votes should be deducted from the total vote 
for Charles A. Sulzer. Your committee further finds that 11 persons 
voted at the election on November 5, 1918, for James Wickersham in 
precincts in which they were not bona fide residents, a few of whom 
were not entitled to vote at all because of nonresidence or 
noncitizenship in the Territory, and that 11 votes should be deducted 
from the total vote for James Wickersham, a net loss for Sulzer of 10 
votes.
    At the Chickaloon precinct in the third division one John Probst, a 
legal voter in the precinct, presented himself at the polls and offered 
to vote, but was informed that the election officers had taken the 
ballot box and books up the creek and he could not vote. If permitted 
to vote he would have voted for James Wickersham. The committee finds 
that this vote should be added to the aggregate vote for James 
Wickersham.

                          cache creek precinct

    In this precinct Connolly received 1 vote, Sulzer 23 votes, and 
Wickersham 2 votes. The contestant charges that this precinct should be 
thrown out because of the violation of the election laws in holding the 
election; that the election was opened and the ballots cast several 
hours before the time fixed by law for opening the polls. The testimony 
clearly shows that in this precinct the election was held and nearly 
all the voters left the precinct before the time fixed by law for 
opening the polls. A number of these voters testified, and while the 
exact time is not fixed by the witnesses, all agree that the polls were 
opened and the votes cast long before 8 o'clock a.m. . . .
    Section 9 of the act of Congress of May 7, 1906, relating to the 
elections in Alaska, provides:

         Sec. 9. That the election boards herein provided for 
     shall keep the several polling places open for the reception 
     of votes from 8 o'clock antimeridian until 7 o'clock 
     postmeridian on the day of election.

    The testimony shows this election was held in a cabin some time 
near 5 o'clock in the morning, and that approximately the whole camp 
moved away. There was no attempt to comply with the law in the opening 
of the polls or in the conduct of this election.
    A parallel case arose in the State of Kentucky. We refer to the 
case of Verney v. Justice (86 Ky., 596). Under the constitution of that 
State it is provided that ``all elections by the people shall be held 
between 6 o'clock in the morning and 7 o'clock in the evening.'' This 
election extended over until 9 or 10 o'clock in the evening. Enough 
votes were received after 7 o'clock

[[Page 1373]]

in the evening to have changed the result. We quote from the opinion of 
the court, on page 601:

         The section under consideration uses the word ``shall''; 
     it is mandatory and excludes the right to hold the election 
     earlier than 6 o'clock in the morning and later than 7 
     o'clock in the evening. If the language was construed as 
     directory merely, the election might not only be continued 
     until 9 or 10 o'clock at night but all next day and the day 
     after, and on and on, unless the courts in the exercise of a 
     discretion should limit it and thus make a constitutional 
     provision in disregard of the one made by the people for the 
     government of election.
         For these reasons it is clear that the votes cast after 7 
     o'clock in the evening for the appellant were illegal, and 
     that the circuit court did right in excluding them.

    We also refer to Tebbe v. Smith (41 Pac. (Cal.), 454).
    The section of the act of Congress above referred to, which is the 
constitution and fundamental law of the Territory of Alaska, is alike 
in its provisions with the constitution of the State of Kentucky.
    Your committee therefore finds that the votes cast in this precinct 
should not be counted in the canvass of votes for Delegate at this 
election. In this precinct 23 votes should be deducted from the total 
of the votes received by Charles A. Sulzer, 2 votes should be deducted 
from the total received by James Wickersham, and 1 vote should be 
deducted from the total vote received by Mr. Connolly, a net loss for 
Sulzer of 21 votes.

                          forty mile district

    The contestant charges that in the Forty Mile district there was an 
official suppression of the election in certain precincts in the 
district in the interest of Mr. Sulzer, whereby the contestant lost 
some 20 votes. The testimony discloses that prior to the election in 
1918 there were five voting precincts in this district, known as the 
Jack Wade precinct, Steel Creek precinct, Franklin precinct, Chicken 
precinct, and Moose Creek precinct. That about October 1, 1918, 
Commissioner Donovan, of the district, made an order redistricting the 
district into three voting precincts, to wit, Franklin, Chicken, and 
Moose Creek, thereby abolishing the Jack Wade and Steel Creek voting 
precincts in the district, or rather merging these precincts into the 
other three precincts, and it is charged that this was done for the 
purpose and that it had the effect of placing the voting precincts at 
such great distances from the voters that the voters in the Jack Wade 
and Steel Creek precincts, by reason of the great distance, were unable 
to reach the polls and to cast their ballots at the election. The 
authority and duty of the commissioner in providing voting precincts in 
the various election districts is defined in section 5 of the act of 
Congress of May 7, 1906, and is as follows:

         Sec. 5. That all of the territory in each recording 
     district now existing or hereafter created situate outside of 
     an incorporated town shall, for the purpose of this act, 
     constitute one election dis

[[Page 1374]]

     trict; that in each year in which a Delegate is to be elected 
     the commissioner in each of said election districts shall, at 
     least thirty days before the date of said first election and 
     at least sixty days before the date of each subsequent 
     election, issue an order and notice, signed by him and 
     entered in his records in a book to be kept by him for that 
     purpose, in which said order and notice he shall--
         First. Divide his election district into such number of 
     voting precincts as may in his judgment be necessary or 
     convenient, defining the boundaries of each precinct by 
     natural objects and permanent monuments or landmarks, as far 
     as practicable, and in such manner that the boundaries of 
     each can be readily determined and become generally known 
     from such description, specifying a polling place in each of 
     said precincts, and give to each voting precinct an 
     appropriate name by which the same shall thereafter be 
     designated: Provided, however, That no such voting precinct 
     shall be established with less than thirty qualified voters 
     resident therein; that the precincts established as aforesaid 
     shall remain as permanent precincts for all subsequent 
     elections, unless discontinued or changed by order of the 
     commissioner of that district.
         Second. Give notice of said election, specifying in said 
     notice, among other things, the date of such election, the 
     boundary of the voting precincts as established, the location 
     of the polling place in the precinct, and the hours between 
     which said polling places will be open. Said order and notice 
     shall be given publicity by said commissioner by posting 
     copies of the same at least twenty days before the date of 
     said first election, and at least thirty days before the date 
     of each subsequent election, etc.

    The election of November 5, 1918, was not the first election after 
the passage of the act and therefore the order, under this act, must be 
made at least 60 days before the date of the election. The evidence, 
however, shows that it was made and signed on October 1, 1918, calling 
the election for November 5, 1918. We herewith set out a copy of the 
order of Commissioner Donovan with reference to this voting district:

  order and notice of election to be held on tuesday, november 5, 1918

         In the office of the United States commissioner at 
     Franklin, Alaska, fourth judicial division, in the matter of 
     the election of a Delegate to the House of Representatives 
     from the Territory of Alaska, one member of the Senate of the 
     Territory of Alaska, four members of the House of 
     Representatives of the Territory of Alaska, one road 
     commissioner for road district No. 4.
         In pursuance of an act of Congress approved May 7, 1906, 
     entitled ``An act providing for the election of a Delegate to 
     the House of Representatives from the Territory of Alaska,'' 
     I, John J. Donovan, United States commissioner, in and for 
     the Forty Mile pre

[[Page 1375]]

     cinct, fourth division, Territory of Alaska, do hereby order 
     that said recording district be, and the same is hereby, 
     divided into the following voting precincts, the boundaries 
     thereof defined, a polling place specified, and a notice of 
     said election published; fixing the date of said election, 
     and designating the said polling places as follows, and the 
     hours between which said polling places will be open:
         1. Moose Creek precinct.--It is ordered that the 
     boundaries of said precinct shall be as follows: Commencing 
     on the Forty Mile River, at the international boundary line, 
     thence running upstream to the mouth of O'Brien Creek, 
     including all tributaries flowing into the said Forty Mile 
     River and Walker's Fork and all its tributaries, from the 
     mouth of Cherry Creek upstream to the international boundary 
     line.
         2. Franklin voting precinct.--It is ordered that the 
     boundaries of said precinct shall be as follows: Commencing 
     on the Forty Mile River at the mouth of O'Brien Creek, thence 
     running upstream and including all tributaries of the North 
     Fork, within the boundaries of the Forty Mile precinct, and 
     all tributaries of the South Fork upstream to the mouth of 
     Walker's Fork, thence in an easterly direction to the mouth 
     of Cherry Creek on said Walker's Fork and all its tributaries 
     flowing into Walker's Fork.
         3. Chicken voting precinct.--It is ordered that the 
     boundaries of said precinct shall be as follows: Commencing 
     at the mouth of Walker's Folk on the South Fork of the Forty 
     Mile River, thence in a southerly direction, including 
     Dennison Fork and all its tributaries, Mosquito Fork and all 
     its tributaries, and the Tanana Basin within the boundaries 
     of the Forty Mile precinct.
         4. That the several polling places herein designated will 
     be open for the reception of votes from 8 o'clock unto 7 
     o'clock p.m. on the day of said election, to wit, the 5th day 
     of November, 1918.
         Dated this the 1st day of October, 1918.

                                          John J. Donovan,            
                                  United States Commissioner          
                           in and for the Forty Mile Precinct,        
                                            Territory of Alaska.      

    This order, fixing the precincts in this district, is not in 
compliance with the law above set forth. It was not issued and entered 
in his records 60 days before the date of the election and does not 
specify a polling place in each precinct as required by law, and does 
not give the location of the polling places in each precinct as 
provided by law.
    Prior to the election on November 5, 1918, there had been five 
polling places in the election district as above stated. These had been 
established for some years and were well known to the voters. These 
could be changed only under the provisions of the law. In this instance 
the commissioner had received a letter from the clerk of Judge Bunnell, 
which was approved either

[[Page 1376]]

before or after its signing. The last clause of the letter of 
instructions was as follows:

         The attention of one or two commissioners is directed to 
     section 396 of the Compiled Laws of Alaska. The law does not 
     contemplate the establishing of voting precincts in places 
     where many prior elections have proven that there are but 
     five or six votes. While it is not believed that any 
     considerable number of voters should be deprived of their 
     franchise by reason of having no voting precinct established, 
     yet it is a matter which should receive the careful attention 
     of the commissioner creating the same.
         Respectfully,

                                             J. E. Clark, Clerk.      

         (In the District Court for the Territory of Alaska, 
     Fourth Judicial District.)

    The record in this case discloses that 20 witnesses were called who 
lived in the Jack Wade and Steel Creek precincts. These were citizens 
and lawful voters of these precincts. All of these witnesses testified 
they were unable to vote because it would require at least two days, 
and traveling a distance of some thirty-odd miles, to and returning 
from the voting precincts as designated by the commissioner. Three of 
these voters testified had they been permitted to vote they would have 
voted for Mr. Sulzer. One testified he would have voted the Socialist 
ticket. All of the others testified they would have voted for Mr. 
Wickersham for Delegate from Alaska. . . .
    We have set out this testimony because it clearly shows that the 
changing of the precincts by the commissioner was not entirely in the 
interest of economy. The abolishing of the Jack Wade and Steel Creek 
precincts, the largest centers in this division both of them having 
post offices where the residents for miles around went for their mail, 
and including the territory of these precincts in other precincts, and 
the placing of the voting precincts at Franklin, Chicken, and Moose 
Creek, the latter place having only two residents, the committee 
believes was for the purpose of depriving the voters of Jack Wade and 
Steel Creek precincts from having an opportunity to cast their votes. 
This action of the commissioner, as shown by the record, was in 
violation of law and did deprive 20 legal voters from casting their 
votes at the election.
    These 20 voters had a legal right to vote and should have been 
permitted to vote and could have voted had the commissioner conducted 
the election in compliance with the law. Had they been permitted to 
vote, Connolly would have received 1 additional vote, Sulzer 3 
additional votes, and Wickersham 16 additional votes, in the two 
precincts abolished and absorbed into the other precincts. If these 
votes are counted 1 vote should be added to the aggregate vote for 
Connolly, 3 votes to the aggregate vote for Sulzer, and 16 votes to the 
aggregate vote for Wickersham.

    However, the committee finds that the whole action of the 
commissioner in the Forty Mile district in redistricting said district 
on the 1st day of Octo

[[Page 1377]]

ber, 1918, was in violation of the law and this action of the 
commissioner did deprive at least 20 legal voters from casting their 
ballots at said election, and said action was without authority or 
jurisdiction.
    It is the judgment of the committee that the votes cast in said 
entire district, which includes the precincts of Chicken, Franklin, and 
Moose Creek, were illegal and should be rejected. . . .
    Your committee therefore finds that from the aggregate vote of 
Connolly there should be deducted 3 votes; from the aggregate vote of 
Sulzer there should be deducted 23 votes; and from the aggregate vote 
of Wickersham there should be deducted 13 votes, a net loss to Sulzer 
of 10 votes.

    Sufferage.--Ballots cast by Indians born in territory and severed 
from tribe were held valid, whereas ballots cast by military personnel 
involuntarily stationed in territory were held invalid.
    Returns were rejected by proportional deduction method where there 
was no evidence for whom unqualified voters had cast ballots.
    Majority report for contestant, who was seated.
    Minority report (unprinted) for contestee, who was unseated as his 
predecessor had not been elected.

                            the indian vote

    It is contended by both parties that in certain precincts the votes 
of a number of Indians should not have been counted. The contestant 
claims, and with much force, that in a number of precincts where 
Indians voted and the majorities were for the contestee, the Indians 
were not entitled to vote, because they had not severed their tribal 
relations and were not citizens in the sense that they were qualified 
electors. 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.
    This identical question arose in the former case in the Sixty-fifth 
Congress, and the House, following the report of the committee, 
disposed of this question and did not exclude the Indian vote. Your 
committee believes it should follow the ruling of the House in the 
former case, and not disturb this vote.

                            the soldier vote

    The question of the soldier vote in Alaska was determined by the 
committee and afterwards by the House in the Sixty-fifth Congress in 
the case of Wickersham v. Sulzer. This case having been so carefully 
investigated and so well considered, having the unanimous endorsement 
of the former committee and a large majority of the House, this 
committee has considered the question settled, and in view of the fact 
that this case was determined so recently, we have used that decision 
as the law in this case, and have followed it.
    In the case under consideration the evidence shows that 44 soldiers 
in the United States Army, stationed in Alaska, voted for Delegate at 
the election

[[Page 1378]]

on the 5th day of November, 1918. As in the former case, each and all 
of the 44 voters in question in this case came to Alaska as soldiers in 
the United States Army. They remained in such service from the date of 
their arrival in Alaska up to the date of the election, and were in 
Alaska in such service on that date. All of them were enlisted and 
accepted for service in the States; and, as indicated by the record, 
the number of men and dates of enlistment being as follows: Eight in 
1917, 2 in 1916, 5 in 1915, 6 in 1914, 6 in 1913, 2 in 1912, 2 in 1911, 
1 in 1909, 2 in 1908, 1 in 1907, 3 in 1903, 1 in 1899, 1 in 1898, 4 in 
____, of whom there were 6 from Washington State; 3 each from 
Minnesota, California, and New York; 2 each from Texas, Illinois, 
Oklahoma, Kentucky, Louisiana, and Missouri; and 1 each from Georgia, 
Ohio, Virginia, West Virginia, Montana, South Dakota, Michigan, Kansas, 
Iowa, Wisconsin, and New Jersey; and 5 from States not specified.
    A few of these were honorably discharged and immediately reenlisted 
in Alaska; and each and all of them had been in the Territory more than 
a year immediately preceding the date of election, and in the precinct 
more than 30 days immediately preceding the election day.

         If they had acquired a legal domicile in Alaska they were 
     entitled to vote, and the vote should be counted; otherwise 
     not. To become a citizen and a qualified elector in Alaska a 
     bona fide residence of 1 year in the Territory and 30 days in 
     the voting precinct is required.

    This is the rule laid down in the former case and under this rule 
the House excluded all of this vote.
    Of the soldier vote in the 1918 election, Wickersham received 5 
votes, Sulzer received 24 votes, and 16 of them refused to testify for 
whom they voted, or evidence was not presented to show for whom they 
voted. Of the votes of the ones where the testimony shows for whom they 
voted, there should be deducted from the total vote of Wickersham 5 
votes, and from the total vote of Sulzer 24 votes, a net loss to Sulzer 
of 19 votes.
    Of the 16 votes cast, where the evidence does not disclose for whom 
they voted, 11 voted in the Valdez precinct, and can be apportioned 
under the rule laid down in the former case of Wickersham v. Sulzer. . 
. .
    The other 4 votes, where the evidence does not disclose for whom 
they voted, were east in the Valdez Bay precinct and can be apportioned 
under this same rule.
    In the Valdez Bay precinct Connolly received 1 vote, Sulzer 
received 24 votes, and Wickersham received 11 votes.
    With a deduction made on this same basis of apportionment 1 should 
be deducted from the total vote of James Wickersham and 3 votes should 
be deducted from the total vote of Sulzer, a net loss to Sulzer of 2 
votes.
    Readjusting the entire vote in accordance with the findings of the 
committee, the result finally established is:

Wickersham.....................................................    4,422
Sulzer.........................................................    4,385
                                                                --------
          Wickersham's plurality...............................       37
------------------------------------------------------------------------


[[Page 1379]]

    For the reasons assigned herein, your committee recommends to the 
House the adoption of the following resolution:

    Resolved, That Charles A. Sulzer was not elected a Delegate to the 
House of Representatives from the Territory of Alaska in this Congress, 
and George B. Grigsby, who is now occupying the seat made vacant by the 
death of said Sulzer, is not entitled to a seat herein.
    Resolved, That James Wickersham was duly elected a Delegate from 
the Territory of Alaska in this Congress, and is entitled to a seat 
herein.
    Minority views were submitted by Mr. C. B. Hudspeth, of Texas, and 
Mr. James O'Connor, of Louisiana, but were not printed to accompany the 
committee report. The minority dissented from each conclusion reached 
in the majority report. Their recommended resolution, offered as a 
substitute for the resolution called up by the majority, provided:

         Resolved, That James Wickersham was not elected a 
     Delegate to the Sixty-sixth Congress from the Territory of 
     Alaska, and is not entitled to a seat in said Congress.
         Resolved, That Charles A. Sulzer was duly elected a 
     Delegate from the Territory of Alaska to the Sixty-sixth 
     Congress, and that said Charles A. Sulzer having died, and 
     George B. Grigsby having been elected at a special election 
     as a Delegate from the Territory of Alaska, and having been 
     sworn in as a Member of the House of Representatives on July 
     1, 1920, that the said Grigsby is entitled to retain his seat 
     therein.

    The unnumbered resolution recommended by the majority report (H. 
Rept. No. 1319) declaring contestant elected at the general election 
and declaring contestee not entitled to retain his seat (as his 
predecessor had not been elected at the general election), was 
submitted by Mr. Dowell on Feb. 28, 1921. Mr. Hudspeth thereupon 
offered a substitute amendment declaring contestant not elected and 
declaring contestees to have been elected. Debate was extended to three 
hours by unanimous consent, to be equally divided and controlled by Mr. 
Dowell and Mr. Hudspeth. On Mar. 1, 1921, when the resolution was 
further considered, the substitute amendment was divided for the vote, 
the first part rejected 169 yeas to 179 nays with 10 ``present,'' and 
the second part rejected 162 yeas to 179 nays with 5 ``present.'' After 
a motion to recommit the report and resolutions to the Committee on 
Elections No. 3 was rejected 169 yeas to 188 nays with 3 ``present,'' 
the resolution was divided for the vote, the first part being agreed to 
182 yeas to 162 nays with 9 ``present,'' and the second part being 
agreed to 177 yeas to 163 nays with 10

[[Page 1380]]

``present'' [60 Cong. Rec. 4189, 66th Cong. 3d Sess., Mar. 1, 1921; H. 
Jour. 275-278].

Sec. 2.7 Farr v McLane, 10th Congressional District of Pennsylvania.

    Federal Corrupt Practices Act.--Violation by contestee's campaign 
committee of the limitation on contributions to a candidate was held 
attributable to contestee and sufficient grounds for unseating 
contestee.
    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on Feb. 15, 1921, follows:

                            Report No. 1325

                 Contested Election Case, Farr v McLane

    At the election held in the tenth congressional district of the 
State of Pennsylvania on November 5, 1918, according to the official 
returns, Patrick McLane, the contestee, who was the Democratic 
candidate, received 11,765 votes and John R. Farr, the contestant, who 
was the Republican candidate, received 11,564 votes. As a result of 
these returns, Patrick McLane, the contestee, was declared elected by a 
plurality of 201 votes over his Republican opponent, John R. Farr, and 
a certificate of election was duly issued to him by the secretary of 
state of Pennsylvania. . . .

                 violation of the corrupt-practices act

    The act of Congress approved August 19, 1911 (37 Stat. L., 33), 
commonly known as the ``corrupt-practices act,'' provides as follows:

         Every person who shall be a candidate for nomination at 
     any primary election or nominating convention, or for 
     election at any general or special election, as 
     Representative in the Congress of the United States, shall, 
     not less than ten nor more than fifteen days before the day 
     for holding such primary election or nominating convention, 
     and not less than ten nor more than fifteen days before the 
     day of the general or special election at which candidates 
     for Representatives are to be elected, file with the Clerk of 
     the House of Representatives at Washington, District of 
     Columbia, a full, correct, and itemized statement of all 
     moneys and things of value received by him or by anyone for 
     him with his knowledge and consent, from any source, in aid 
     or support of his candidacy, together with the names of all 
     those who have furnished the same in whole or in part; and 
     such statement shall contain a true and itemized account of 
     all moneys and things of value given, contributed, expended, 
     used, or promised by such candidate, or by his agent, 
     representative, or other person for and in his behalf with 
     his knowledge and consent, together with the names of all 
     those to whom any and all such gifts, contributions,

[[Page 1381]]

     payments, or promises were made, for the purpose of procuring 
     his nomination or election. . . .
         No candidate for Representative in Congress or for 
     Senator of the United States shall give, contribute, expend, 
     use, or promise, or cause to be given, contributed, expended, 
     used, or promised, in procuring his nomination and election, 
     any sum, in the aggregate, in excess of the amount which he 
     may lawfully give, contribute, expend, or promise under the 
     laws of the State in which he resides: Provided, That no 
     candidate for Representative in Congress shall give, 
     contribute, expend, use, or promise any sum, in the 
     aggregate, exceeding $5,000 in any campaign for his 
     nomination and election; and no candidate for Senator of the 
     United States shall give, contribute, expend, use, or promise 
     any sum, in the aggregate, exceeding $10,000 in any campaign 
     for his nomination and election: Provided further, That money 
     expended by any such candidate to meet and discharge any 
     assessment, fee, or charge made or levied upon candidates by 
     the laws of the State in which he resides, or for his 
     necessary personal expenses, incurred for himself alone, for 
     travel and subsistence, stationery and postage, writing or 
     printing (other than newspapers), and distributing letters, 
     circulars, and posters, and for telegraph and telephone 
     service, shall not be regarded as an expenditure within the 
     meaning of this section, and shall not be considered any part 
     of the sum herein fixed as the limit of expense and need not 
     be shown in the statements herein required to be filed.

    The evidence shows that on December 5, 1918, Patrick McLane filed a 
personal return of his campaign expenses showing total receipts of $275 
and total expenditures or disbursements of $748.04.
    On the same date George Hufnagel, treasurer, filed a return in 
behalf of the ``McLane Campaign Committee'' showing total receipts of 
$12,800 and total expenditures of $11,749. Under the head of 
``Expenditures or disbursements'' occurs this item:

         November 3, P. J. Noll, secretary Democratic county 
     committee, $6,000.

    On December 2, 1918, Albert Gutheinz, treasurer of the Democratic 
county committee of Lackawanna County, which county is situated in the 
tenth congressional district of the State of Pennsylvania, filed a 
return with the Clerk of the House of Representatives showing total 
receipts of $10,195 and total expenditures or disbursements of 
$7,476.96 and unpaid debts and obligations of $158.79. At the top of 
this return, the original of which was examined by the committee, 
appears the following statement:

         I hereby certify that the following is a full, correct, 
     and itemized statement of all moneys and things of value 
     received by me as treasurer of the Democratic county 
     committee of Lackawanna County, Pa., together with the names 
     of all those who have furnished the same, in whole or in 
     part, in aid or support

[[Page 1382]]

     of the candidacy of Patrick McLane for election as Democatic 
     Representative in the Congress of the United States for the 
     tenth congressional district of the State of Pennsylvania  at 
     the general election to be held in said district on the 5th 
     day of November, 1918. [The italics are the committee's.]

    It is evident, therefore, that in spite of the fact that Congress 
by statute has expressly forbidden any candidate for Representative in 
Congress to expend more than $5,000 in any campaign for his nomination 
and election, after deducting $6,000 which was received by the McLane 
campaign committee and paid by it to the Democratic county committee of 
Lackawanna County and expended by the latter, and also deducting the 
amount of $760.75 expended for purposes for which no return is required 
by the Federal statute, there was expended in the interest of the 
contestee, Patrick McLane, $7,853.49 in excess of the statutory amount. 
But omitting entirely the expenditures of the Democratic county 
committee, the ``McLane Campaign Committee'' alone, which was organized 
solely for the purpose of promoting the election of the contestee, 
Patrick McLane, spent $11,749, the whole amount of which, with the 
exception of items aggregating $292.50, was expended for purposes for 
which, if expended by the candidate himself, a return is required to be 
made by the Federal law.
    It was contended by the contestee, Patrick McLane, that he had not 
violated the corrupt practices act, because he personally had expended 
only $748.04 and that the balance of the money was expended by a 
committee of which he claims that he had no knowledge. If his 
contention is correct then the corrupt practices act becomes a farce 
and the limitation placed by Congress upon campaign expenditures is 
meaningless. The reading of the entire statute clearly shows that it 
was the intent of Congress to prohibit a candidate for Congress from 
expending directly or indirectly more than $5,000 for his nomination 
and election.
    In the contested election case of Gill v. Catlin [Moore's Digest of 
Contested Election Cases, 1901-1917, p. 521 from the eleventh district 
of the State of Missouri, in the second session of the Sixty-second 
Congress, where the contestee pleaded that he had no knowledge of any 
money being expended in his behalf outside of what he spent personally, 
it was held that he had constructive notice from the fact that he must 
have known as a reasonable man that money was being spent in his 
interests. In the present case, the testimony is plain that the 
contestee, Patrick McLane, had actual notice of the fact that money was 
being spent by his committee in his interests and that he was even 
shown copies of the advertisements which were inserted in the Scranton 
newspapers in his behalf.
    The committee therefore finds that the contestee, Patrick McLane, 
must under the law be held to have had constructive knowledge of 
expenditures made in excess of the amount permitted under the corrupt 
practices act. For that reason, in accordance with congressional 
precedent and as a matter of principle, he is not entitled to his seat 
in the Sixty-sixth Congress.

    Fraud was sufficient to justify total rejection of returns in 
precincts where election officials illegally changed polling places,

[[Page 1383]]

marked ballots, and permitted double votes and the registration and 
balloting by unqualified or fictitious voters.
    Evidence.--The burden of proof is on contestant to show voters 
unqualified, and proof of alphabetical arrangement of names in poll 
books is sufficient to establish fraud by election officials.
    Returns were totally rejected in precincts where both official 
fraud and balloting by unqualified voters were proven, and were 
rejected by proportional deduction method in precincts where 
unregistered voters cast ballots absent official fraud.
    Report for contestant, who was seated; contestee unseated.

    For the sake of clearness, the contestant's charges will first be 
considered in detail and then the contestee's charges will be taken up 
in like manner.

                   contestant's charges of illegality

    1. Archbald Borough, first ward, first district: Official vote--
Farr 71, McLane 156. The contestant claims that in this district 37 
persons were permitted by the election officers to vote who were not 
legally qualified to vote because they had not registered and did not 
make affidavit of their right to vote in the absence of their 
registration, as required by the laws of the State of Pennsylvania.
    The committee finds that giving the contestee the benefit of the 
doubt, which has been the policy of the committee throughout, 34 such 
persons were actually permitted to vote.

    2. Archbald Borough, first ward, second district: Official vote--
Farr 5, McLane 229. The contestant claims that in this district 30 
persons whose names appear on the list of voters returned by the 
election officers as having voted did not, as a matter of fact, vote at 
the congressional election on November 5, 1918. The committee finds 
that this happened in 19 cases.
    In the same district the contestant claims that 10 persons voted 
illegally, either because they had paid no tax or were aliens or 
minors. The committee finds that there is some conflict in the 
testimony and therefore gives the contestee the benefit of the doubt.
    The contestant also claims that the names of seven persons were 
returned as having voted whose names were fictitious, as no such 
persons in fact existed. The committee finds considerable evidence to 
support this contention.
    The contestant claims and the committee finds that the registry 
list of qualified voters belonging to this district disappeared under 
suspicious circumstances.
    3. Archbald Borough, second ward: Official vote--Farr 18, McLane 
319. The contestant claims that in this ward 18 persons who were 
returned by the election officers as having voted did not, as a matter 
of fact, vote at the congressional election on November 5, 1918. The 
committee finds that this was true in 12 cases. The contestant further 
claims that in this district 46 votes were cast by unregistered voters 
who had not qualified in accordance with the laws of Pennsylvania. The 
committee finds that 41 such persons

[[Page 1384]]

were permitted to vote. The contestant also claims and the committee 
finds that persons under age were induced to make false affidavits and 
then permitted to vote illegally with the full knowledge and consent of 
the election officials.
    4. Archbald Borough, third ward: Official vote--Farr 11, McLane 
190. The contestant claims that in this district 37 persons whose names 
appear upon the list of voters returned by the election officers of the 
said district as having voted did not, as a matter of fact, vote at the 
congressional election on the 5th day of November, 1918. The committee 
finds that there were 29 such cases.
    The contestant also claims that 18 names on the list of voters as 
returned by the election officers as having voted were fictitious and 
that no such persons, as a matter of fact, existed. There is 
considerable evidence to establish this contention and, in addition the 
alphabetical arrangement of the names which were supposed to be entered 
in the poll book in the order in which the voters cast their ballots, 
clearly indicates the existence of fraud on the part of the election 
officials.
    The contestant further claims that 84 persons whose names appear 
upon the list of voters as having voted, were not registered and were 
not qualified to vote under the laws of the State of Pennsylvania. The 
committee finds that 71 such persons actually voted.
    The contestant also claims that the polling place in this district 
was illegally changed on election day contrary to the laws of 
Pennsylvania, and, that in aeeordance with the decisions of the supreme 
court of that State, the entire returns of that district should be 
thrown out. While the committee finds that the evidence and decisions 
strongly support this contention, this fact alone would not have caused 
the committee to recommend the rejection of the entire return. 
Considering the question, however, in connection with the evidence of 
fraud hereinbefore referred to, the committee is of the opinion that 
the entire return from this district should be rejected, as recommended 
hereafter.
    5. Dickson City Borough, first ward: Official vote--Farr 87, McLane 
182. The contestant claims that in this district 69 persons were 
permitted to vote by the election officers who were not legaDy 
qualified to vote because they had not registered and did not make 
affidavit of their right to vote in the absence of their registration, 
as required by law. The committee finds that 68 such persons were 
permitted to vote.
    6. Dickson City Borough, second ward: Official vote--Farr 42, 
McLane 176. The contestant claims that the names of 23 persons appear 
upon the list of voters returned by the election officers of this 
district as having voted who did not, as a matter of fact, vote at the 
congressional election on November 5, 1918. The committee finds that 
this was true in at least 10 instances. The committee also finds that 
the alphabetical arrangement of the names in the poll book constitutes 
strong circumstantial evidence of collusion and fraud on the part of 
the election officers. The contestant further claims and the committee 
finds that 10 persons were allowed to cast their ballots in this 
district who were not on the voting list and who were not qualified 
according to the laws of the State of Pennsylvania.

[[Page 1385]]

    7. Dickson City Borough, third ward: Official vote--Farr 28, McLane 
191. The contestant claims that in this district 59 persons were 
permitted to vote by the election officers who were not legally 
qualified to vote because they had not registered and did not make 
affidavit of their right to vote in the absence of their registration, 
as required by law. The committee finds that 50 such persons were 
actually permitted to vote.
    8. Dunmore Borough, first ward, second district: Official vote--
Farr 17, McLane 127. The contestant claims that in this district the 
election officers returned for the office of Representative in Congress 
16 more votes than were actually cast. The committee finds that the 
testimony and the exhibits substantiate this contention. The contestant 
also claims that 54 of the 128 voters who, according to the poll book, 
did vote, were not on the voting list and did not qualify on election 
day as required by law. The committee finds that this was the fact in 
50 oases.
    9. Dunmore Borough, first ward, third district: Official vote--Farr 
53, McLane 119. The contestant claims that in this district persons 
were openly permitted to vote who were not citizens of the United 
States, although they told this fact to the election officers, and that 
their ballots were marked for them by these officials. The committee 
finds that the testimony clearly shows that this was the fact, as the 
following extract from the record shows. . . .
    The contestant also claims and the committee finds that in this 
district 10 persons were permitted to vote by the election officers who 
were not legally qualified to vote because they had not registered and 
did not make affidavit of their right to vote in the absence of their 
registration, as required by law.
    10. Dunmore Borough, second ward, first district: Official vote--
Farr 12, McLane 105. The contestant claims that in this district 19 
persons were permitted to vote by the election officers who were not 
legally qualified to vote because they had not registered and did not 
make affidavit of their right to vote in the absence of their 
registration, as required by law. The committee finds that 18 such 
persons were permitted to vote.
    11. Dunmore Borough, second ward, second district: Official vote--
Farr 21, McLane 140. The contestant claims that in this precinct 5 
persons whose names appear upon the list of voters as having voted did 
not, upon their own testimony, vote at the congressional election on 
November 5, 1918. The committee finds that the evidence clearly shows 
that this was true in 4 cases. The committee also finds, as contended 
by the contestant, that 3 persons not citizens of the United States 
were permitted to vote, and that the election officers in this district 
knowingly accepted the votes of such persons.

    The contestant further claims that in this district 38 persons were 
permitted to vote by the election officers who were not legally 
qualified to vote because they had not registered and did not make 
affidavit of their right to vote in the absence of their registration, 
as required by law. The committee finds that 29 such persons were 
permitted to vote.
    12. Dunmore Borough, fourth ward: Official vote--Farr 2, McLane 50. 
The contestant claims, and the committee finds, that in this precinct 
one person was returned as having voted who did not, in fact, vote 
according to his own

[[Page 1386]]

testimony. The contestant further claims that 12 unnaturalized aliens 
were permitted to vote and in many cases were urged to vote and their 
ballots marked by the election officers. The committee finds that this 
contention is supported by the evidence.
    13. Olyphant Borough, third ward, first district: Official vote--
Farr 38, McLane 161. The contestant claims that in this precinct 5 
persons were returned as having voted by the election officers who did 
not, as a matter of fact, vote, owing to the fact that they were 
fighting overseas or had died. The committee finds that this was the 
fact. The testimony also shows that, in this precinct the names of 
fictitious persons were repeatedly voted on, and that 7 unnaturalized 
aliens were permitted to cast their votes.
    The contestant further claims that in this district 85 persons were 
permitted to vote by the election officers who were not legally 
qualified to vote because they had not registered and did not make 
affidavit of their right to vote in the absence of their registration 
as required by law. The committee finds that according to the evidence 
83 such persons were permitted to vote.
    14. Olyphant Borough, fourth ward: Official vote--Farr 112, McLane 
135. The contestant claims that in this district the regularly elected 
judge of election being sick and unable to attend, neither of the 
methods provided by the laws of Pennsylvania for the appointment of a 
substitute judge of election was followed, but that a young man named 
Joseph Onze, who, according to his own testimony, was not legally 
entitled to vote himself on account of the nonpayment of taxes, was 
sworn in and conducted the election. The contestant also claims that in 
this district 237 votes were returned for the office of Congressman, 
whereas only 204 votes were cast in the ward; and also that there were 
52 fraudulent ballots deposited in the ballot box.
    The contestant also claims that 6 persons whose names appeared on 
the list of voters as having voted did not, as a matter of fact, vote 
at the congressional election on November 5, 1918; that 2 persons were 
permitted by the election officers to vote who, according to their own 
testimony, were aliens, and 2 who had not paid taxes as required by 
law.
    The committee finds that all of these allegations are substantiated 
by the evidence.
    The contestant further claims that in this district 43 persons were 
permitted to vote by the election officers who were not legally 
qualified to vote because they had not registered and did not make 
affidavits of their right to vote in the absence of their registration 
as required by law. The committee finds that 38 such persons were 
permitted to vote.
    15. Lackawanna Township, first district: Official vote--Farr 11, 
McLane 239. The contestant claims that in this district 20 persons 
whose names appear on the list of voters returned by the election 
voters as having voted did not, as a matter of fact, vote at the 
congressional election on November 5, 1918. The committee finds that 
the testimony clearly shows that this happened in 19 cases. The 
contestant further claims that in this district the list of voters was 
falsified by the election officers, as shown by the testimony; that 71 
voters must have cast their ballots at the same time, notwithstanding 
there were only five voting booths in the polling place, and that 7 
persons were permitted to vote twice at the election. The committee 
finds

[[Page 1387]]

that these contentions are substantiated by the testimony. The 
contestant also claims that four persons were permitted to vote, one of 
whom was an alien and three who had paid no taxes in violation of the 
laws of the State of Pennsylvania. The committee finds that the 
evidence shows that three of the four persons mentioned clearly voted 
illegally.
    The contestant also claims that in this district 51 persons were 
permitted to vote by the election officers who had not registered and 
did not make affidavit of their right to vote in the absence of their 
registration, as required by law. The committee finds that 47 such 
persons were permitted to vote.
    The committee further finds that in this district, as in other 
districts, persons who were not citizens of the United States were told 
that everybody who was registered in the draft could vote, and that 
many such persons were permitted to vote.
    16. Lackawanna Township, second district: Official vote--Farr 7, 
McLane 106. The contestant claims that in this district 14 persons who 
were not citizens of the United States were permitted by the election 
officials to vote and that in case of many of them their ballots were 
marked and deposited in the box by outside ``workers'' acting in 
collusion with the election officials. The committee finds that this 
contention is borne out by the evidence. The contestant also claims 
that in this district 19 persons were permitted to vote by the election 
officers who were not legally qualified to vote because they had not 
registered and did not make affidavit of their right to vote in the 
absence of such registration, as required by law. The committee finds 
that 9 such persons were actually permitted to vote.
    17. Winton Borough, second ward: Official vote--Farr 16, McLane 
196. The contestant claims that in this district 68 persons were 
permitted to vote by the election officers who were not legally 
qualified to vote, because they had not registered and did not make 
affidavit of their right to vote in the absence of registration, as 
required by law. The committee finds that 61 such persons were actually 
permitted to vote.
    18. Winton Borough, third ward: Official vote--Farr 16, McLane 184. 
The contestant claims that in this district 118 persons were permitted 
to vote by the election officers who were not legally qualified to 
vote, because they had not registered and did not make proof of their 
right to vote in the absence of such registration, as required by law. 
The committee finds that 110 such persons were permitted to vote.
    19. Fell Township, third district: Official vote--Farr 19, McLane 
76. The contestant claims that in this district 40 persons were 
permitted to vote by the election officers who were not legally 
qualified to vote because they had not registered and did not make 
affidavit of their right to vote in the absence of their registration, 
as required by the law. The committee finds that 36 such persons were 
permitted to vote.
    20. Throop Borough: Official vote--Farr 108, McLane 251. The 
contestant claims that in this district 59 persons were permitted to 
vote by the election officers who were not legally qualified to vote 
because they had not registered and did not make affidavit of their 
right to vote in the absence of registration, as required by law.
    The committee finds that 57 such persons were actually permitted to 
vote.

[[Page 1388]]

                   contestee's charges of illegality

    1. Carbondale: Official vote--Farr 1,016, McLane 799. The contestee 
claims in his brief that in certain wards in the city of Carbondale the 
names of 77 persons were added to the voting list by the board of 
county commissioners of Lackawanna County on sworn petitions presented 
by one Ralph Histed without the persons in question having personally 
appeared before the board, on the ground that they were prevented by 
sickness or necessary absence from the city, when, as a matter of fact, 
they were not so prevented.
    The result of the committee's inquiry by wards is as follows:
    Carbondale, first ward, first district: The contestee claims that 
27 votes were cast by persons illegally registered. Of these 19 were 
summoned and testified.
    The committee finds that 13 of these were illegally registered, of 
whom 7 testified that they voted for John R. Farr for Congress, 1 
testified that he voted for Patrick McLane, and the other 5 refused to 
disclose for whom they voted.
    Carbondale, second ward, first district: The contestee claims that 
in this district 6 persons were permitted to vote who were improperly 
registered. Of this number 5 were summoned and testified.
    The committee finds that 4 of these persons were illegally 
registered, of whom 3 voted for John R. Farr for Congress and 1 refused 
to disclose for whom he voted.
    Carbondale, third ward, fourth district: The contestee claims that 
20 voters were permitted to vote whose registration was illegal. Of 
this number 16 were summoned and testified.
    The committee finds that 15 of the 16 were illegally registered, of 
whom 8 testified that they voted for John R. Farr for Congress and 7 
refused to disclose for whom they voted.
    Carbondale, fifth ward, first district: The contestee claims that 9 
votes were cast by persons illegally registered. Of these 6 were 
summoned and testified. The committee finds that 3 of these persons 
were illegally registered, all of whom voted for John R. Farr for 
Congress.
    Carbondale, sixth ward, first district: The contestee claims that 
in this district 3 persons were permitted to vote who were improperly 
registered. Of this number, 1 was summoned and testified, and committee 
finds that he was illegally registered but refused to disclose for whom 
he voted.
    2. Blakely Borough: Official vote--Farr 587, McLane 127. The 
contestee claims that 21 persons were permitted to vote who were not 
qualified voters. The committee finds that 4 persons in this borough 
voted illegally, 3 of them testifying that they voted for John R. Farr, 
the contestant.
    3. Old Forge Borough: Official vote--Farr 416, McLane 472. The 
contestee claims that in this borough there was intimidation and 
coercion of voters and that illegal votes were cast therein. The 
committee finds that the testimony is vague and indefinite, except as 
to one unnaturalized person, who was permitted to vote.
    4. Taylor Borough, sixth ward, first district: Official vote--Farr 
85, McLane 29. The contestee claims that the returns from this district 
should

[[Page 1389]]

be thrown out on the ground that the polls were not open at the time 
fixed by law and that in the absence of the regular election officers 
an irregular election board was chosen. The committee finds that while 
the polls were late in opening, the election in the district in 
question was carried on in good faith, and that there are no facts 
which would justify the committee in throwing out the vote of the 
district.
    5. Covington Township: Official vote--Farr 86, McLane 18. The 
contestee claims that in this township there were 12 illegal votes 
cast. The committee finds that the contestee's contention is not borne 
out by the facts.

                            the soldier vote

    The contestee also claims that the votes taken in the various 
military encampments and naval stations throughout the United States 
should be rejected and should be deducted from the totals on the ground 
that the returns were not in accordance with the requirements of the 
laws of Pennsylvania. The total soldier vote was Farr, 181; McLane, 
123; there being a plurality of 58 for John R. Farr.
    The State of Pennsylvania passed no new legislation providing for 
the voting of persons in the Army and Navy, as was the case in many of 
our States. Whatever voting was done was therefore held under the act 
of the assembly of August 25, 1864 (Public Laws, 990), which was passed 
during the Civil War when conditions were very different from what they 
were in the late war.
    While it is undoubtedly true, as the contestee claims, that some 
camps and naval stations submitted returns which failed to comply with 
all the provisions of the statute, nevertheless, your committee feels 
that in the absence of evidence that the soldiers who voted were not 
otherwise disqualified to vote, it would be reluctant to disfranchise 
them. Inasmuch, however, as the rejection of the entire soldier vote 
would not alter the result arrived at by the committee upon all the 
other evidence in the case, it is not necessary to pass upon this 
question.

                                summary

    The committee therefore finds that in the boroughs of Archbald, 
Dickson City, Dunmore, Olyphant, Winton, and Throop and in the 
townships of Lackawanna and Fell there were 1,006 illegal votes cast 
and counted at the congressional election on November 5, 1918. In a 
vast majority of these cases there is no way of ascertaining for whom 
these illegal votes were cast for the office of Representative in 
Congress. In many of these districts there is conclusive evidence of 
actual fraud on the part of the election officers, which would justify 
the rejection of the entire vote of the district in accordance with a 
long line of State and congressional precedents. In all of them there 
was a reckless disregard of the essential requirements of the 
Pennsylvania election laws on the part of the officers conducting the 
election, to such an extent as to render their returns unreliable and 
to bring about the same result as actual fraud.

[[Page 1390]]

    In the case of In re Duffy (4 Brewster, 531), a Pennsylvania case, 
in which were involved some of the very election districts that are 
involved in the present case, the court held that when there is a 
reckless disregard of the provisions of the election law on the part of 
the election officers, such a condition renders the returns of the 
election officers unreliable and is sufficient to set them aside. If in 
the present case the entire vote of the districts in question should be 
rejected, as has been done by election committees of the House of 
Representatives in a large number of contested-election cases, the most 
recent of which was the Massachusetts case of Tague v. Fitzgerald in 
the present Congress, the result would be as follows: John R. Farr, 
10,858 votes; Patrick McLane, 8,438 votes; and John R. Farr would be 
elected by a plurality of 2,420 votes.
    If, on the other hand, the rule of deducting the illegal votes pro 
rata from the total vote of the two candidates, which rule was followed 
in the case of Finley v. Walls in the Forty-fourth Congress [Rowell's 
Digest of Contested Election Cases, 1789-1901, p. 305] and in other 
contested-election cases, notably, in the recent case of Wickersham v. 
Sulzer in the Sixty-fifth Congress, it would result in a deduction of 
164 votes from the total vote of John R. Farr, and in a deduction of 
841 votes from the total vote of Patrick McLane, which would make the 
result as follows: John R. Farr, 11,400; Patrick McLane, 10,924; and 
John R. Farr would still be elected by a plurality of 476.
    After most careful consideration your committee is of the opinion 
that in the present case both methods should be used. While in all of 
the election districts in question persons were permitted to vote who 
had not been legally registered--in certain of the districts, namely: 
Archbald Borough, first ward, second district; Archbald Borough, third 
ward; Dickson City Borough, second ward; Dunmore Borough, first ward, 
second and third districts; Dunmore Borough, second ward, second 
district; Dunmore Borough, fourth ward; Olyphant Borough, third ward, 
first district; Olyphant Borough, fourth ward; and the first and second 
election districts of Lackawanna Township--there was in addition 
evidence of other fraud of various kinds, together with collusion on 
the part of the election officials of such a character as to destroy 
the integrity of the returns and to justify their absolute rejection. 
Accordingly, your committee has rejected the entire returns from the 
last-mentioned districts, in which John R. Farr received 322 votes and 
Patrick McLane received 1,669 votes.

    Deducting these votes from the official returns gives the following 
result: John R. Farr, 11,242 votes; Patrick McLane, 10,096 votes. In 
the remaining election districts, where there was simply evidence of 
persons voting who were not legally registered, your committee has 
deducted from the total vote of the two candidates the number of 
illegal voters pro rata, namely, 77.71 from the vote of John R. Farr 
and 411.30 from the vote of Patrick McLane, with the following result: 
John R. Farr, 11,164; Patrick McLane, 9,685.
    The committee then proceeded to deduct the 41 illegal votes found 
to have been cast in the city of Carbondale, Blakely Borough, and Old 
Forge Borough, from the total votes of the candidates where the 
evidence showed for whom the person voted, and to deduct the balance 
pro rata, with the final

[[Page 1391]]

result as follows: John R. Farr, 11,131; Patrick McLane, 9,677 votes; 
or a plurality of 1,454 votes for John R. Farr.

                               conclusion

    The evidence in this case, therefore, clearly shows that the 
contestee, Patrick McLane, must under the law be held to have had 
constructive knowledge of expenditures made in excess of the amount 
permitted under the corrupt practices act, and for that reason, in 
accordance with congressional precedent, he is not entitled to a seat 
in the Sixty-sixth Congress.
    Moreover, entirely apart from the unlawful expenditure of money 
incurred to secure the election of the contestee, there was widespread 
fraud and illegality in the election itself. The rejection of the 
entire vote of the election districts in which such fraud and 
illegality occurred, in accordance with a long line of congressional 
and State precedents, results in the election of John R. Farr, the 
contestant, by a plurality of 2,420 votes. Without, however, rejecting 
any election districts, the subtraction of the illegal votes pro rata 
from the total vote of the contestant and the contestee, respectively, 
in accordance with the practice followed in some contested election 
cases in past Congresses, results in the election of John R. Farr, the 
contestant, by a plurality of 476 votes. Following the plan adopted by 
your committee of rejecting the entire vote of those election districts 
in which there occurred both fraud and illegality and deducting the 
illegal votes pro rata from the total vote of each candidate in these 
districts where there was only evidence of the voting of persons not 
legally registered, the result is still the election of John R. Farr, 
the contestant, by a plurality of 1,454 votes. No matter what plan is 
adopted, the rejection of the entire soldier vote would not alter the 
result.
    Your committee therefore respectfully recommends to the House of 
Representatives the adoption of the following resolutions:

         Resolved, That Patrick McLane was not elected a Member of 
     the House of Representatives from the tenth congressional 
     district of the State of Pennsylvania in this Congress and is 
     not entitled to retain a seat herein.
         Resolved, That John R. Farr was duly elected a Member of 
     the House of Representatives from the tenth congressional 
     district of the State of Pennsylvania in this Congress and is 
     entitled to a seat herein.

    After debate in the House on Feb. 25, 1921, Mr. James V. McClintic, 
of Oklahoma, offered the following motion to recommit:

         Resolved, That the report in the Farr against McLane 
     contested case be recommitted to the Committee on Elections 
     No. 1, with instructions to examine the tally sheets and the 
     registration lists in the 32 boxes impounded by a court order 
     under date of April 5, 1919, on the prayer of the contestee, 
     and to report back

[[Page 1392]]

     to the House when all of the testimony and facts have been 
     properly considered.

    Reported privileged resolution (H. Res. 697) divided for vote, 
first part agreed to (161 yeas to 113 nays with 4 ``present'' and 
second part agreed to (158 yeas to 106 nays with 5 ``present'') after 
debate and after rejection (120 yeas to 161 nays with 2 ``present'') of 
motion to recommit report [60 Cong. Rec. 3899, 66th Cong. 3d Sess., 
Feb. 25 1921; H. Jour. 253, 254].


                Sec. 3. Sixty-seventh Congress, 1921-23

Sec. 3.1--Memorial of John P. Bracken, At Large, Pennsylvania.

    Member-elect's death prior to certification was held not to entitle 
an unsuccessful candidate, receiving the highest number of votes of all 
unsuccessful candidates at large, to the seat.
    Report recommending memorialist not entitled to seat.
    Report of Committee on Elections No. 2 submitted by Mr. Robert 
Luce, of Massachusetts, on July 14, 1921, follows:

                             Report No. 265

                      Memorial of John P. Bracken

    The Committee on Elections No. 2, to which was referred the 
memorial of John P. Bracken, a citizen of Pennsylvania, claiming to 
have been elected to the House of Representatives of the Sixty-seventh 
Congress, reports as follows:
    Upon the canvass of votes east in the State of Pennsylvania 
November 2, 1920, Hon. Mahlon M. Garland was declared to have been 
elected as one of the four Representatives at large in Congress from 
that State. Before the completion of the canvass Mr. Garland died. Mr. 
Bracken received the highest vote given to any candidate not declared 
to have been elected. In the judgment of your committee this state of 
facts does not warrant the conclusion that Mr. Bracken was elected, and 
therefore the committee recommends the passage of the following 
resolution:

         Resolved, That John P. Bracken was not elected a 
     Representative at large to the Sixty-seventh Congress from 
     the State of Pennsylvania.

    Reported privileged resolution (H. Res. 204) agreed to by voice 
vote after brief debate [61 Cong. Rec. 6564, 67th Cong. 1st Sess., Oct. 
20. 1921; H. Jour. 494].

[[Page 1393]]

Sec. 3.2 Bogy v Hawes, 11th Congressional District of Missouri.

    Pleadings.--Failure of contestant to comply with an elections 
committee rule requiring filing of an abstract of evidence with his 
brief did not preclude committee's consideration of the merits of the 
contest.
    Evidence taken ex parte by contestant is not admissible.
    Evidence offered by contestant to support allegations of fraud and 
irregularities was insufficient to void returns.
    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on July 21, 1921, follows:

                             Report No. 281

                 Contested Election Case, Bogy v Hawes

                         statement of the case

    At the election held in the eleventh congressional district of the 
State of Missouri on November 2, 1920, according to the official 
returns, Harry B. Hawes, the contestee, who was the Democratic 
candidate, received 35,726 votes and Bernard P. Bogy, the contestant, 
who was the Republican candidate, received 33,592 votes. As a result of 
these returns, Harry B. Hawes, the contestee, was declared elected by a 
plurality of 2,134 votes over his Republican opponent, Bernard P. Bogy, 
and a certificate of election was duly issued to him by the secretary 
of state of Missouri.
    On December 18, 1920, the contestant, Bernard P. Bogy, in 
accordance with law, served on the contestee a notice of contest in 
which was set forth 27 separate grounds of contest, alleging false 
registration, wrongful and fraudulent counting of ballots, and 
intimidation of voters at the congressional election. Summarizing the 
numerous allegations in his notice of contest, the contestant claims 
that 31,125 votes were improperly and illegally east for the contestee 
and that if the votes thus illegally and improperly counted and 
accredited to the contestee, Harry B. Hawes, were deducted, the 
contestant, Bernard P. Bogy, would be shown to have been fairly 
elected.
    To this notice of contest the contestee, Harry B. Hawes, on 
December 20, 1920, served on the contestant, Bernard P. Bogy, an answer 
denying all the allegations contained in the contestant's notice.
    The contestee took no testimony in his own behalf before the notary 
public, contenting himself with a long and exhaustive cross-examination 
by himself and his counsel of the witnesses summoned by the contestant. 
He contended both in his brief and in his argument before your 
committee that the contestant has utterly failed to prove the 
allegations contained in his notice of contest.

                         work of the committee

    The testimony in the case having been printed and printed briefs 
having been duly filed with the committee by both parties, a hearing 
was given to

[[Page 1394]]

the parties by your committee on Wednesday, July 13, 1921, at which 
oral arguments were presented by both the contestant and the contestee, 
neither of them being represented by counsel at the hearing. Since the 
close of the hearing the committee has examined the record, the briefs, 
and the stenographer's report of the hearing and given the ease careful 
consideration.
    In order to expedite the disposition of contested election cases 
the three Committees on Elections at the beginning of the present 
session of Congress revised the rules of the committees and adopted a 
new rule known as rule 3, which reads as follows:

         Rule 3. Each contestant shall file with his brief an 
     abstract of the record and testimony in the case. Said 
     abstract shall, in every instance, cite the page of the 
     printed testimony on which each piece of evidence referred to 
     in his abstract is contained. If the contestee questions the 
     correctness of the contestant's abstract, he may file with 
     his brief a statement setting forth the particulars in which 
     he takes issue with the contestant's abstract, and may file 
     an amended abstract setting forth the correct record and 
     testimony.

    Copies of the new rules were sent to both the contestant and the 
contestee in the present case. The contestant, however, entirely 
ignored this rule and did not file with his brief an abstract of the 
record and testimony in the case, although the contestee did comply 
with it. As a result, the committee was obliged to read the entire 
record, which was full of a very large amount of irrelevant matter. 
Under the circumstances, the committee might well have defaulted the 
contestant for noncompliance with the rules of the committee. Inasmuch, 
however, as this was the first Congress in which this rule has been in 
operation, the committee has been inclined to be lenient and has 
considered the case in all its bearings as fully as if the rule had 
been complied with.
    In connection with this subject, the committee desires to call the 
attention of the House to H.R. 7761, unanimously reported by this 
committee on July 16 of the present year, being No. 115 on the Union 
Calendar, and now on Calendar for Unanimous Consent, which incorporates 
the substance of this rule in the law governing contested election 
eases.

                            findings of fact

    In support of most of the allegations contained in his notice of 
contest, the record shows that the contestant offered no evidence or 
testimony whatever. In the case of the few allegations in which he 
submitted testimony, it is in most cases unsatisfactory and 
unconvincing, as a reading of the examination and cross-examination of 
the witnesses in the record will show.
    As an example of the lack of evidence in this case, the committee 
desires to call attention to the twenty-fourth count in the 
contestant's notice of contest, where he alleges that there were in the 
eleventh congressional district about 2,000 cases of illegal 
registration, the votes of all such illegally registered persons having 
been cast for the contestee. Then follows a list of

[[Page 1395]]

about 450 names and addresses of persons alleged to be improperly 
registered. In support of this alleged wholesale illegal registration 
and voting, no evidence or testimony whatever was offered by the 
contestant at any time. At the hearing before your committee the 
contestant offered a sworn affidavit of a lieutenant of police of the 
city of St. Louis, stating that on March 26, 1921, prior to the city 
election, he was detailed by the board of police commissioners to 
investigate false registration in certain wards of St. Louis, and that 
he compared his canvass of certain precincts in the eleventh 
congressional district with the registration lists furnished by the 
board of election commissioners, and that he estimated that there were 
between 1,000 and 1,200 false registrations in the eleventh 
congressional district at that time. Inasmuch as this affidavit was 
entirely ex parte and no opportunity was given to the contestee to 
cross-examine the witness, your committee very properly excluded it in 
common with several other similar affidavits. This affidavit, like the 
other excluded affidavits, however, had no probative value or any 
bearing upon the present contest, as there was no evidence whatever 
that any of the alleged false registrants voted at the congressional 
election on November 2, 1920.

                        conduct of the election

    The contestant, Bernard P. Bogy, was a candidate for the Republican 
nomination for Congress in the eleventh Missouri district at the 
primary election held August 3, 1920, but was defeated by Otto F. 
Stifel by a vote of 8,296 to 1,944. After the primary and before the 
election, Otto F. Stifel died and the contestant, Bernard P. Bogy, was 
given the Republican nomination by the Republican congressional 
committee. The adoption of the nineteenth amendment to the Constitution 
of the United States, granting the right of suffrage to women, resulted 
in an increase in the number of registered voters in the eleventh 
congressional district of Missouri from 44,670 in 1916 to 79,356 in 
1920. In the year 1916 the total vote cast by both the Republican and 
Democratic candidates for Congress was 41,462, while in the year 1920 
the combined vote of the contestant and the contestee was 69,318. To 
meet this tremendous increase in the number of registered voters only 
23 additional polling places were provided by the authorities of St. 
Louis, resulting in a very great congestion at the polls on election 
day. In spite of this congestion, however, the election was, on the 
whole, quiet and orderly, there being very few complaints made to the 
board of election commissioners.
    The election was in charge of the Board of Election Commissioners 
of the city of St. Louis, which is a bipartisan board composed of two 
Democrats and two Republicans appointed by the governor of the State 
and confirmed by the State senate. The clerks in the office of the 
board of election commissioners are equally divided between Republicans 
and Democrats, the Republican clerks being selected by the Republican 
commissioners and the Democratic clerks being selected by the 
Democratic commissioners. At each of the 155 voting precincts of the 
eleventh congressional district there were present on election day two 
Republican and two Democratic judges of election and one Republican and 
one Democratic clerk, all of these officials being ap

[[Page 1396]]

pointed by the board of election commissioners, the Republican 
officials being appointed by the two Republican commissioners and the 
Democratic officials being appointed by the two Democratic 
commissioners. In addition, there were at each polling place one 
Republican and one Democratic watcher and one Republican and one 
Democratic challenger, who were appointed by the Republican and 
Democratic ward committees, respectively.

                        charges of intimidation

    There is some evidence in the record that party workers wearing 
badges, at and near the polling places, and in a few instances some of 
the election officials, solicited voters to vote for the Democratic 
candidate in violation of the election laws of the State of Missouri. 
In no precinct, however, were these or any other irregularities 
testified to by the contestant's witnesses, of such a nature or of such 
an extent as to warrant the throwing out of the vote of any precinct; 
and there is no evidence whatever to connect the contestee or his 
agents with any of such irregularities. For instance, one of the 
contestant's witnesses, Mrs. Grace Guy, testified that a union labor 
man urged her to vote for Gov. Cox for President because of his 
friendship for organized labor, the names of the congressional 
candidates not even being mentioned.
    The only case of actual intimidation seems to have been that of the 
Rev. Eugene V. Hansmann, who, according to his own testimony, was 
assaulted and taken to the station house by a police officer in the 
first precinct of ward 20 without any apparent justification. On cross-
examination he testified that he had never preferred charges against 
the police officer who arrested him.

    Ballots.--The results of an examination and complete recount 
conducted by bipartisan election officials upon stipulation of the 
parties were held binding on contestant.
    Ballots.--An elections committee refused to partially recount 
ballots not returned as disputed from the complete recount which had 
been conducted by election officials pursuant to stipulation of the 
parties, where the result would not be changed, where fraud was not 
proven by certain markings, and where contestant was estopped by the 
stipulation from such challenge
    Fraud was not proven by contestant's receiving fewer votes than 
candidates of his party for other offices, where the political 
situation in the district was found consistent with such disparity.
    Report for contestee, who retained his seat.

                              the recount

    On January 11, 1921, a stipulation was entered into between the 
contestant and the contestee and their respective counsel, a copy of 
which will be found on pages 269 and 270 of the printed record, that 
``the board of election commissioners should open the ballot boxes used 
in the eleventh congressional district at the election held on November 
2, 1920, and recount the bal

[[Page 1397]]

lots for the office of Representative in the Sixty-seventh Congress for 
the eleventh congressional district of Missouri.'' In this stipulation, 
which was signed by both the contestant and his attorney, it was agreed 
that in case the validity of any ballot for either the contestant or 
the contestee was challenged the question should be decided by the 
board of election commissioners. The recount was commenced on January 
12 and completed on January 17, 1921. The actual counting was done by 
40 assistants appointed by the board of election commissioners, 20 of 
them being Democrats and 20 of them being Republicans. After the 
recount was completed and the board of election commissioners had 
passed upon all disputed ballots, the final result showed that Harry B. 
Hawes, Democrat, had received 35,404 votes and Bernard P. Bogy, 
Republican, had received 33,337 votes, making a plurality for Harry B. 
Hawes, Democrat, of 2,067, or a net gain for Bernard P. Bogy, the 
Republican contestant, of 67 votes.
    At the hearing before your committee, the contestant claimed that 
in spite of the fact that the recount was conducted by an equal number 
of Republican and Democratic counters, and in spite of the fact that 
both the contestant and the contestee were given the privilege of 
having a watcher at each table where the ballots were being counted, 
nevertheless, the recount was not fairly conducted for the reason that 
in some instances the contestant and his watchers were not given an 
opportunity to see some of the scratched ballots for the purpose of 
disputing the same. At a meeting of the board of election commissioners 
held on January 25, 1921, after the recount had been completed and the 
ballot boxes sealed up, the attorney for the contestant requested the 
board for permission to photograph all of the scratched ballots in ward 
19, precinct 12; ward 26, precinct 22; ward 26, precinct 17; ward 20, 
precinct 14; and ward 22, precincts 8 and 9. This request was denied by 
the board by a vote of three to one, on the ground that the ballots of 
which photographs were desired, were not returned by the recount clerks 
as ``disputed ballots'' and because it was contrary to the stipulation. 
According to the record, these were the only precincts in which any 
request was made for the reopening of the ballot boxes.
    At the hearing before your committee, the contestant requested your 
committee to send for these particular ballot boxes and examine all the 
ballots. Even if all of the scratched ballots should prove to be in the 
same handwriting and should be counted for the contestant, it would not 
alter the result. Moreover, the fact that Republican ballots might be 
found in these boxes in which the contestant's name was crossed out and 
the name of the contestee written in, even if the handwriting were the 
same, would not necessarily be evidence of fraud as under the laws of 
Missouri, the election officers are permitted to mark the ballots for 
illiterate voters. For these reasons your committee declined to send 
for the ballot boxes in question and is of the opinion that on the 
whole the recount was fairly conducted and that the contestant, having 
agreed to abide by the decision of the board of election commissioners 
in regard to all disputed ballots, he is precluded from now questioning 
the result of the official recount.

[[Page 1398]]

                         summary and conclusion

    In this case the contestant apparently feels that because the 
Republican candidate for President carried the eleventh congressional 
district of Missouri by a plurality of 2,403 votes, while at the same 
time he, the Republican candidate for Congress, was defeated by his 
Democratic opponent by a plurality of 2,067 votes, the result must have 
been due to fraudulent practices. As a matter of fact, the eleventh 
congressional district of the State of Missouri has been a Democratic 
district for many years and under normal circumstances would naturally 
elect a Democratic Congressman. The fact that the contestee had long 
been a resident of the district, while the contestant had only recently 
moved into the district, would easily account for the fact that the 
former would run ahead of his ticket, while the latter would run 
behind. Moreover, it is admitted by the contestant that most of the 
Republican committeemen and most of the Republican election officials 
were hostile to his election. Finally, he was not the choice of the 
Republican voters, another candidate having decisively defeated him at 
the primary and he having received his nomination from the 
congressional committee. This opposition on the part of the active 
Republican workers of the district would easily account for the fact 
that his name was uniformly scratched in all the precincts of the 
district on election day.
    As has already been stated, the contestant did not even offer to 
prove most of the allegations contained in his notice of contest and 
offered no evidence whatever of any fraud or irregularities in most of 
the 155 precincts of the congressional district. While, as the 
committee has pointed out, there is some evidence of occasional 
violations of the election laws of the State of Missouri, there is no 
evidence whatever to justify the committee in throwing out the vote of 
any voting precinct. Your committee believes that considering the very 
great congestion at the polls due to the voting of women for the first 
time, the election held in the eleventh congressional district in the 
State of Missouri on November 2, 1920, was, on the whole, quiet and 
orderly and fairly conducted. Furthermore, in order to discover any 
possible discrepancies or evidence of fraud, an official recount was 
held by the bipartisan board of election commissioners of the city of 
St. Louis, under a stipulation signed by the contestant and his 
attorney, that all disputed ballots should be decided by the board. 
Your committee believes that this recount was fairly conducted and that 
the official result of the recount showing that Harry B. Hawes, the 
contestee, was elected by a plurality of 2,067 over his Republican 
opponent, Bernard P. Bogy, the contestant, in the absence of competent 
evidence to dispute it, is a fair and accurate expression of the wishes 
of the voters of the eleventh congressional district of Missouri. Your 
committee, therefore, for the reasons hereinbefore stated, respectfully 
recommends to the House of Representatives the adoption of the 
following resolutions:

         Resolved, That Bernard P. Bogy was not elected a 
     Representative in this Congress from the eleventh 
     congressional district of the State of Missouri and is not 
     entitled to a seat herein.

[[Page 1399]]

         Resolved, That Harry B. Hawes was duly elected a 
     Representative in this Congress from the eleventh 
     congressional district of the State of Missouri and is 
     entitled to retain his seat herein.

    Reported privileged resolution (H. Res. 205) agreed to by voice 
vote after brief debate [61 Cong. Rec. 6555, 67th Cong. 1st Sess., Oct. 
20, 1921; H. Jour. 494].

Sec. 3.3 Kennamer v Rainey, 7th Congressional District of Alabama.

    Evidence offered by contestant to support allegations of 
registration frauds and irregularities was insufficient to affect 
election results.
    Suffrage.--Women voters were not denied the right to register or 
vote by a conspiracy of the state legislature.
    Irregularities by election officials in permitting unregistered 
persons to vote were held insufficient to affect the election result.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 3 submitted by Mr. Cassius
    C. Dowell, of Iowa, on Oct. 31, 1921, follows:

                             Report No. 453

               Contested Election Case, Kennamer v Rainey

    At the November election held in the seventh congressional district 
of the State of Alabama on the 2d of November, 1920, according to the 
official returns, L. B. Rainey, the contestee, who was the Democratic 
candidate, received 23,709 votes, and Charles B. Kennamer, contestant, 
who was the Republican candidate, received 22,970 votes. As a result of 
these returns L. B. Rainey, the contestee, was declared elected by a 
majority of 739 votes, and a certificate of election was duly issued to 
him and upon such certificate he was duly seated as a Member of the 
Sixty-seventh Congress.
    On the 11th day of December, 1920, the contestant, Charles B. 
Kennamer, in accordance with law, served on the contestee a notice of 
contest setting forth a number of grounds of contest, generally 
charging, in various forms, fraud and malconduct of various officers, 
and charging fraud and irregularities in the registration of voters, 
and charging generally that certain officers, members of committees, 
and members of State legislature conspired to postpone legislation for 
the registration of women voters in said district, and further charging 
that they did deprive certain women from registering and voting in said 
district, and further charging that L. B. Rainey was not elected to 
said office, but that contestant was duly elected. . . .
    It is charged by contestant that the governor, members of the 
legislature of the State, and certain other persons conspired to delay 
legislation authorizing the registration of women voters of the 
district and delayed the appointment of registrars to register these 
voters. The proclamation of the ratification of the woman's suffrage 
amendment was made on August 26, 1920.

[[Page 1400]]

The governor issued a call for a special session of the legislature on 
August 28, 1920, to convene on September 14, 1920. The record shows 
that the legislature convened on the 14th day of September, 1920, in 
special session, and the legislation referred to was completed and 
signed by the governor on October 2, 1921, which was the last day of 
the extra session. It appears that other legislation was considered and 
acted upon by the legislature during this time.

    Your committee do not find the charge of conspiracy to delay this 
legislation and to delay the appointment of registrars to be sustained 
by the evidence.
    It is further charged by contestant that a number of Republican 
women were not registered and were denied the opportunity to register. 
The testimony of contestant on this point is very indefinite and 
uncertain and does not sustain the charge of contestant.
    It is further charged by contestant that the registration boards 
were partisan and unfair in their selection of the various places for 
the registration of voters, and that said boards unlawfully registered 
Democratic voters and did not give the Republican voters the 
opportunity to register and refused their registration.
    Your committee find from a careful inspection of the evidence that 
some persons were registered unlawfully, and the evidence shows that a 
small number not legally entitled to vote voted for the contestee, Mr. 
Rainey; but the testimony does not show that the number of votes cast 
of those who were not properly registered and who were not legally 
entitled to vote materially affected the result of the election.
    While there were some other irregularities, and perhaps violations 
of the law in some instances, the evidence does not disclose that these 
irregularities or violations affected the result of the election in 
this district. Neither does the evidence disclose that the persons who 
failed to vote in said district were deprived of their right to 
register and vote, nor is it shown by competent evidence that they 
offered to register or vote.
    On the whole case the official returns show that contestee, L. B. 
Rainey, received a majority of 739 votes, and the evidence submitted in 
this case does not sustain the charges of the contestant that 
contestant should be declared elected.
    Your committee therefore find that L. B. Rainey received a majority 
of the votes cast in the seventh congressional district of the State of 
Alabama on the 2d day of November, 1920, and that he was duly elected.
    Your committee therefore, for the reasons herein stated, 
respectfully recommend to the House of Representatives the adoption of 
the following resolutions:

         Resolved, That Charles B. Kennamer was not elected a 
     Representative in this Congress from the seventh 
     congressional district of the State of Alabama, and is not 
     entitled to a seat herein.
         Resolved, That L. B. Rainey was duly elected a 
     Representative in this congress from the seventh 
     congressional district of the State of Alabama,and is 
     entitled to retain his seat herein.

[[Page 1401]]

    Privileged resolution (H. Res. 221) agreed to by voice vote after 
brief debate [61 Cong. Rec. 7214, 67th Cong. 1st Sess., Nov. 2, 1921; 
H. Jour. 523].

Sec. 3.4 Rainey v Shaw, 20th Congressional District of Illinois.

    Federal Corrupt Practices Act.--Contestant's allegations of 
violations during contestee's primary election were insufficient, based 
on advisory opinion of the Attorney General construing a Supreme Court 
opinion holding such act invalid with respect to nominations.
    Federal Corrupt Practices Act.--Provisions requiring timely filing 
of receipt and expenditure statements by candidates in a general 
election were construed as directory, and the fact that the Clerk did 
not receive statements held insufficient grounds for unseating 
contestee where evidence showed attempted compliance.
    Answer to notice of contest.--Filing after the required time was 
found not prejudicial to contestant and therefore not grounds for 
unseating contestee.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 2 submitted by Mr. Robert 
Luce, of Massachusetts, on Dec. 6, 1921, follows:

                             Report No. 498

                 Contested Election Case, Rainey v Shaw

    Guy L. Shaw, it is admitted, received a majority of the votes cast 
at the election November 2, 1920. His seat is contested by Henry T. 
Rainey by reason of circumstances connected with the corrupt practices 
act and the statute relating to procedure in election contests. An 
allegation of improper use of certain funds received by Mr. Shaw was 
not supported by any evidence whatever, nor was it further pressed upon 
the committee, by argument or otherwise. There was no charge of 
illegitimate use of money among the voters of the district, nor of 
expenditure beyond the limit prescribed by law. In the end the 
contestant restricted his contentions to matters of failure to comply 
with statutory requirements.
    After notice of contest had been filed, the Supreme Court, in the 
case of Truman H. Newberry et al. v. The United States, gave an 
opinion, May 2, 1921, bearing upon the corrupt practices act. As to the 
effect thereof, the Attorney General has advised your committee as 
follows:

         It is my opinion that the Newberry decision should be 
     construed as invalidating all of the provisions of the act 
     referred to, relating to nominations for the office of 
     Senator or Representative in Congress, whether by primaries, 
     nominating conventions, or by endorsement at general or 
     special elections. I am also of the opinion that as to 
     statements of receipts and disbursements to be filed by 
     candidates for the office of Representative in Congress under

[[Page 1402]]

     section 8 of the act, the only provision now in force and 
     effect is the one which requires such statements to be filed 
     in connection with the election of such candidates.

    Agreeing with this view, we conclude that such of the allegations 
of the contestant as concerned the primaries in the district in 
question fall to the ground, by reason of the unconstitutionality of so 
much of the act as related to nominations; but that those allegations 
connected with the election should be considered. These center upon the 
contention that Mr. Shaw should be held to be disqualified because he 
failed to file within the time prescribed statements of his receipts 
and expenses in connection with the election. On this point the 
testimony of Mr. Shaw is to the effect that he duly mailed such 
statements. They were not received by the Clerk of the House. Had Mr. 
Shaw taken advantage of the statute and sent the documents by 
registered mail, no question would have arisen. However, the law does 
not make registration a requisite, and, as a matter of fact, many 
returns forwarded without registration have been unhesitatingly 
accepted. Apart from the nonarrival of the statements, there was no 
evidence tending to contradict Mr. Shaw's testimony, but, on the other 
hand, there was evidence to the effect that at least some of the 
statements had been duly prepared. With the case so standing, it seemed 
clear to your committee that in this particular no sufficient reason 
had been advanced for declaring Mr. Shaw to be disqualified, even if it 
were to be assumed that the requirements of law in the matter of filing 
statements are mandatory rather than directory. Therefore that question 
need not here be once more discussed, though in passing it may not be 
undesirable to point out that the precedents support in general the 
view that such requirements are directory and therefore that failure to 
observe them will not of itself invalidate an election.
    The only other contention seriously pressed in behalf of the 
contestant was that Mr. Shaw had failed to comply with the statutory 
requirement for the filing of an answer to notice of contest within a 
stipulated time. Here the evidence showed no willful neglect on the 
part of Mr. Shaw, nor any injury to Mr. Rainey. Mr. Shaw appears to 
have erred in his understanding as to what would be a compliance with 
the law, and did not receive legal advice in the matter until the time 
for proper reply had passed, but a proper reply was then made, and in 
ample time to protect all of Mr. Rainey's rights. Under such 
circumstances, where no harm has resulted to anybody, where no act or 
failure to act has shown moral obliquity, where no statutory purpose 
has been thwarted to the public detriment, there is no ground for the 
contention that a district ought to be deprived of the services of its 
duly chosen representative, or that the dignity or the honor of the 
House calls for his exclusion.
    Therefore the committee recommends to the House the adoption of the 
following resolutions:

         Resolved, That Henry T. Rainey was not elected a 
     Representative in this Congress from the twentieth 
     congressional district of the State of Illinois and is not 
     entitled to a seat herein.

[[Page 1403]]

         Resolved, That Guy L. Shaw was duly elected a 
     Representative in this Congress from the twentieth 
     congressional district of the State of Illinois and is 
     entitled to retain a seat herein.

    Privileged resolutions (H. Res. 248, H. Res. 249) agreed to after 
debate by voice vote [62 Cong. Rec. 431, 432, 67th Cong. 2d Sess., Dec. 
15, 1921; H. Jour. 37].

Sec. 3.5 Campbell v Doughton, 8th Congressional District of North 
     Carolina.

    Ballots.--Absentee votes were not rejected where lack of voter 
domicile was not proven by contestant.

    Ballots.--The absentee return was not entirely rejected for failure 
of election officials to preserve all such ballots, where state law was 
reasonably interpreted by officials to require preservation only of 
certain absentee ballots with accompanying certificates, and not 
others, and fraud was not proven by contestant.
    Report of Committee on Elections No. 2 submitted by Mr. Robert 
Luce, of Massachusetts. on May 27, 1922, follows:

                             Report No. 882

              Contested Election Case, Campbell v Doughton

    Returns from the district in question, with conceded corrections, 
show a vote of 32,944 for Robert L. Doughton and 31,856 for James I. 
Campbell, making Doughton's apparent majority 1,088. The seat is 
contested on various grounds.

                            absentee voting

    The contestant asks that all the absentee votes be thrown out, for 
the reason that the great bulk of them were fraudulent, and for the 
further reason that the ballots and certificates were not preserved and 
returned as required by law, making it impossible for the contestant to 
pursue his inquiries with thoroughness. The chief fraud alleged was in 
the matter of residence qualification. In this particular the committee 
does not think the charges are borne out by the evidence. The difficult 
problem of domicile, so greatly involving in its determination the 
question of intent, seems on the whole to have been met by the local 
officials with as much fairness and wisdom as could have been 
reasonably expected, and the testimony presents little if any 
suggestion of conscious misfeasance. In the case of new registrations a 
registrar is rarely in position to question the applicant's declaration 
of intent. In the case of voters already on the roll the declaration in 
the certificate accompanying the ballot of an absentee, that he is ``a 
qualified voter,'' seems virtually to preclude the officials at the 
polls from rejecting the ballot on the ground that the absentee has 
abandoned his residence.
    The practical effect is to postpone inquiry until the result of the 
election is contested. Such inquiry must then be largely confined to 
persons other

[[Page 1404]]

than the absentee voters themselves, as it turned out in the present 
case. The testimony of such other persons must be largely opinion 
testimony, which is always of doubtful weight. For this reason it was 
held in Lowe v. Wheeler, Forty-seventh Congress, that the mere 
statement of a witness that an elector is a nonresident is 
insufficient; the witness must give facts to justify his opinion. 
Furthermore, lack of acquaintance on the part of a single witness will 
not be adequate proof. In Letcher v. Moore, Twenty-third Congress, the 
committee unanimously adopted as a rule of decision ``that no name be 
stricken from the polls as unknown upon the testimony of one witness 
only that no such person is known in the county.'' This becomes of all 
the more importance in the case of absentee voters because they are so 
often persons who are little at home and who may indeed have passed 
most of the time away for years. If these things be borne in mind, much 
of the contestant's testimony aimed at the absentee vote will be found 
to fall to the ground. The acceptance of ballots from voters whose 
poll-taxes may not have been paid raised a more debatable issue, which 
may best be considered later in this report. Apart from the votes 
disputed by reason of domicile or nonpayment of poll-taxes, we find 
only about 175 absentee votes specifically questioned by the contestant 
with any shadow of basis for suspicion, and the rejection of all of 
these would not by itself change the result of the election.
    The contestant, however, avers that in any case the whole absentee 
vote should be rejected because of the failure to preserve ballots and 
accompanying certificates, which in his belief the law required. The 
governing provision is to be found in section 4a of chapter 322 of the 
Public Laws of 1919, relating to absentee voting:

         In voting by the method prescribed in chapter 23 of the 
     Public Laws of 1917 the voter may, at his election, sign, or 
     cause to be signed, his name upon the margin or back of his 
     ballot or ballots, for the purpose of identification. The 
     ballot or ballots so voted, together with the accompanying 
     certificates, and also the certificates provided in section 
     two of this act, in case the voter ballots by that form, 
     shall be returned in a sealed envelope by the registrar and 
     poll holders, with their certificates of the result of the 
     election and kept for six months, or, in case of contest in 
     the courts, until the results are finally determined.

    This was in an act ratified March 11. On the previous day had been 
ratified the work of a commission that had been engaged in revising and 
consolidating the public and general statutes, and it had been provided 
that the commissioners should insert the enactments of the current 
general assembly, with proper technical changes ``and make such other 
corrections which do not change the law as may be deemed expedient.''
    The Consolidated Statutes were to be in force from and after August 
1. When they appeared, they contained this provision (sec. 8101):

         All public and general statutes passed at the present 
     session of the general assembly shall be deemed to repeal any 
     conflicting provisions contained in the Consolidated 
     Statutes.

[[Page 1405]]

    From all this it is evident that when the commissioners dropped 
from section 4a of chapter 322 the words italicized in the section as 
quoted above, they could not change the purport of the original 
provision; could not legitimate any interpretation of the section other 
than the natural interpretation of the original phraseology.
    This confutes the argument that the word ``so'' in the phrase, 
``The ballot or ballots so voted, together with accompanying 
certificates,'' refers back to all the absentee ballots and 
certificates. Otherwise there would be no significance in the word 
``also'' in the phrase omitted by the commissioners. It is clear, then, 
that the actual law required the keeping of only the ballots signed for 
the purpose of identification. Such was the interpretation generally 
given to it by the election officials of both parties.
    It was an interpretation buttressed by the fact that the laws of 
North Carolina make no provision for the preservation of main election 
ballots in general; and that no apparent gain would result from 
segregating at any rate such unmarked ballots as were sent in by the 
absentee.
    Some question may be raised as to the ballots cast by election 
officials in compliance with instructions given in that particular form 
of certificate specially mentioned in the phrase omitted by the 
commissioners--the certificate in which the absentee says he casts a 
straight party ballot as designated. Possibly it was contemplated that 
if the ballot as actually cast was attached to or kept with the 
certificate, in case of contest it might later be learned whether the 
election officials complied with the instructions. However, the 
testimony contains almost no charges of misfeasance in this matter of 
compliance with the voter's instructions, and in this particular no 
injury appears to have resulted to the contestant because this class of 
ballots was not in general preserved.
    It is clear that failure to preserve the certificates by which a 
straight party ballot was cast was a violation of the actual law, but 
it is to be remembered that the phraseology of what purported to be the 
law, as contained in the Consolidated Statutes and in the extract 
therefrom printed as a pamphlet entitled ``Election Law,'' which 
undoubtedly the election officials commonly relied upon, might fairly 
be construed to mean that only the certificates accompanying marked 
ballots were to be kept. Election officials can not reasonably be 
expected to unravel the technical difficulties found in such a 
situation as this. Indeed, as far as they grow out of the changes made 
by the commissioners who consolidated the statutes, their very 
existence was left to your committee itself to ascertain and disclose.

    Even if errors were committed in this matter by the election 
officials, it is well established that ``in the absence of fraud the 
voter can not be deprived of his vote by the omission of election 
officers to perform the duties imposed upon them by law.'' (Gaylord v. 
Cary, 64th Cong. Also see Moss v. Rhea, 57th Cong.; Larrazola v. 
Andrews, 60th Cong.; Barnes v. Adams, 41st Cong.)
    The testimony in this case when studied in detail suggests no such 
amount of fraud as would warrant the exclusion of the whole absentee 
vote. To be sure, viewed as a whole, this vote naturally arouses 
question by reason of the great preponderance of Democratic ballots, 
but, of course, this

[[Page 1406]]

would not of itself suffice to invalidate the vote. It may have no 
determining weight if it can be explained by reasonable considerations. 
These are to be found in the status of the greater part of the 
absentees and the relative activity of the party managers.
    It is to be borne in mind that the absentee-voting article itself 
says:

         All the provisions of this article, and all the other 
     election laws of this State, shall be liberally construed in 
     favor of the right of the elector to vote.

    Here was a mandate to the officials not to quibble nor stand upon 
technicalities. The voter was to have the benefit of the doubt. When 
such injunctions are specifically set forth, the clearest proof is 
necessary in order to sustain an allegation of fraud in the acceptance 
of ballots. No such proof has been presented by the contestant.

    The following minority views were submitted by Mr. John L. Cable, 
of Ohio:

    The conduct of the election in many precincts of the eighth 
congressional district of North Carolina was so tainted and permeated 
with fraud, corruption, conspiracy, forgery, disregard of the law by 
some of the election officials, misconduct and impropriety--all 
constituting such a grievous assault upon the integrity of the ballot 
box in such precincts that, in the opinion of the undersigned, these 
acts remove from the official return the sacred character with which 
the law should clothe them and place the burden of proof upon the 
contestee, Doughton, to maintain the legality of the official count. 
This he has failed to do and is not entitled to hold his seat as a 
Member of Congress. . . .
    The vote in the district upon which the certificate of election was 
issued to the contestee stood as follows: Doughton, 32,934; Campbell, 
31,856; Doughton's alleged majority, 1,078.
    But the absentee votes included above are ``so tainted with fraud 
that the truth can not be deductible therefrom.'' The ratio of the 
absentee votes of Doughton and Campbell tell their own story, 1,596 to 
201, respectively. Without this absentee vote Campbell wins by 317 
votes. In Iredell and Rowan Counties Doughton received a total of 1,041 
to Campbell's 87, or 12 to 1. The illegal absentee votes can not be 
separated from the legal, and all absentee ballots should, therefore, 
be rejected.
    In addition contestant is entitled to 254 additional votes and 
contestee 24 by reason of the Democrats purposely delaying and 
depriving Republicans from voting in Fur and Big Lick precincts. . . .

                            absentee voters

    It is apparent from the following list of absentee votes cast and 
counted in the counties of Rowan, Iredell, Stanly, Ashe, and Caldwell, 
that fraud must have been perpetrated against contestant Campbell in 
the preparation and casting of the votes. . . .

[[Page 1407]]

    Prior to the 1919 amendment to the absentee electoral law there was 
no provision for the preservation of any of the absent-elector 
certificates or ballots, but in this same chapter 322 of the 1919 
assembly the law was amended by providing that certain certificates and 
ballots should be ``kept for six months'' after the election, viz:

         I. Ballots signed by absentee voter for identification 
     purposes.
         II. Certificates (Form B) provided by section 2 of the 
     1919 law calling for a straight party ticket.

    The courts have never passed upon the question as to whether or not 
it is legal to destroy the absentee certificates prior to the six 
months' period of time. There is no law authorizing the destruction of 
the general election ballots. No matter how a court should construe 
this provision, the record clearly shows that the destruction of the 
certificates was a part of the conspiracy whereby many illegal votes 
were cast. Prior to the election the Democrats received the application 
of absent electors for certificates or ballots. No public record was 
kept of the name and residence of these applicants, and no knowledge 
was obtained by the Republicans as to who applied to vote under the 
absent-elector law. The first information the Republicans obtained as 
to the identity of those who desired to vote by absentee was at 3 
o'clock on the day of election when the Democratic registrar produced 
for the first time the envelopes containing the absent electors' 
certificate or certificate and ballots, as the case might be, depending 
upon the method the elector desired to use in voting. The envelopes 
were opened at 3 o'clock and if Form B was used, ballots representing 
the desire of the elector were picked up from the table and put in the 
ballot box, and the Democratic registrar retained the envelope and 
certificate. If Form A was used, the ballots were taken from the 
envelope and put in the ballot box. In either case, Republicans had no 
opportunity of obtaining information whereby the casting of these 
ballots might be challenged. Directly after the ballots were counted, 
they, together with the certificates, were destroyed or secreted. The 
absentee electoral vote was the means of casting 1,596 Democratic votes 
for Contestee Doughton, while but 201 absentee votes were cast for 
Contestant Campbell. The record shows that absentee ballots were cast 
on behalf of Contestee Doughton in part as follows: In the name of the 
dead; the insane; without the knowledge or consent of those who did not 
vote; a second absentee ballot without knowledge or consent of those 
who had already voted; for and by many nonresidents of the State; for 
and by many who had not paid their poll tax, as required by law; on 
forged certificates.

    By destroying or secreting the absentee certificates and marked 
ballots it was impossible for contestant Campbell to obtain or to trace 
and discover the identity and eligibility of the absentee voter in 
every case; that is, from the certificate itself. Contestant, however, 
by means of witnesses, introduced evidence showing that votes were cast 
as above outlined.
    To be a qualified elector in North Carolina section 5937 in part 
provides:

         The residence of a married man shall be where his family 
     resides, and that of a single man where he sleeps.

[[Page 1408]]

    Notwithstanding this provision of the law, evidence was introduced 
by contestant showing that many absentee ballots were cast in the name 
of actual nonresidents of the voting precincts and even the State; such 
absentees were living in Ohio, Illinois, Kentucky, Georgia, California, 
and many other States of the Union, sometimes for 10 or 12 years.
    A vote was cast for a man confined in the State institution for the 
insane at Morgantown, on the western branch of the Southern Railroad, 
whereas the envelope containing the certificate was mailed at Winston-
Salem, many miles from the hospital and not on the same railroad that 
ran through Morgantown, in which it was located.
    Because the identity of the absentees was concealed by reason of 
the destruction of the certificates after the election and because of 
the operation of the law before election it was impossible for 
contestant to trace all absentee votes and show their illegality.

    Fraud.--Conspiracy to defraud was not proven by contestant where 
election official's inefficiency prevented timely opening of some polls 
and the casting of some ballots.
    Unethical campaign practices against a candidate on contestant's 
ticket that were not attributable to contestee were held not 
prejudicial against contestant.
    Registration.--Registration of voters by election officials, 
allegedly on a partisan basis, at places other than those designated 
for registration (as permitted by state law) were held not prejudicial 
against contestant.
    Registration.--Denial of access to registration books to 
contestant's party workers was found insignificant.
    The majority report continued:

                               conspiracy

    In two precincts of Stanly County (Big Lick and Fur) the conduct of 
the polling was not inconsistent with the possibility of conspiracy. 
Insufficient accommodation was provided for the voters; apparently the 
crowd was not handled with ordinary skill; there were instances of 
delay that might well have aroused suspicion. On the other hand 
although the total vote polled was much less than in sundry other 
precincts, and it was charged that 264 voters were unable to vote 
before the polls closed at sunset, yet in one case 750 and in the other 
695 ballots were cast, more than 1 a minute, leaving no ground to infer 
conspiracy simply from the total of the figures. The weight of the 
evidence showed no discrimination, except in favor of the women and 
most of the elderly men, who regardless of party were given precedence. 
Although as these precincts were strongly Republican, the loss fell 
chiefly on the Republican ticket, yet Democrats suffered as well as 
Republicans, and it is hard to believe that men would deliberately plan 
to deprive their own partisans of exercising the right of suffrage in 
the hope that a larger number of their opponents would be shut out. 
Direct evidence of

[[Page 1409]]

conspiracy was wholly lacking, and the circumstances could be explained 
as due to the inefficiency of election officials.

                              intimidation

    By reason of the circulation and exhibition of a picture with 
implications most unfair to the Republican candidate for President, and 
a libellous publication purporting to be a genealogical tree, each 
meant to arouse prejudice by raising the negro question in a peculiarly 
obnoxious way, it was averred that numerous voters who otherwise would 
have voted the Republican ticket, either voted the ticket of the other 
party or stayed away from the polls. To this it was rejoined that if 
any such effect was produced, it was much more than offset by the 
indignation aroused in Republicans and the consequent stimulus to 
harder work. Of course, neither thing is capable of much verification 
and anyhow there was not even a charge that Mr. Doughton knew of the 
matter or had in it any share whatever. Language strong enough for the 
censure of such methods of campaigning is hard to find, but it would be 
unwise to say that because of a vicious attack, wholly indefensible, 
aimed at a candidate for one of the various offices to be filled at an 
election, candidates for other offices should be imperiled.

                              registration

    In North Carolina the law requires the attendance of registrars at 
the place of registration on the four Saturdays preceding an election, 
and permits the registrars at any other time to register elsewhere. The 
contestant averred unfairness by registrars when away from the 
registration places, in that they would then devote their energies 
mainly to registering voters of their own faith, to the neglect of 
voters of opposite faith. If there was violation of law in this 
particular, it was to be found only in disregard of that part of the 
oath taken by the registrar which imposed on him the duty of acting 
``impartially.'' Undoubtedly a registrar would have been delinquent if 
he had refused to register any qualified voter presenting himself at 
the registration place on the appointed days, for registration was then 
obligatory. To register elsewhere and at other times was wholly 
permissive. Where it is altogether within the discretion and pleasure 
of an official whether an act shall be performed at all, and its 
performance is accompanied by no denial of rights, can the act be 
impeached on the score of partiality? No voter in North Carolina has 
either an inherent or a statutory right to be registered away from the 
registration place. If there was neglect to give any voter an 
opportunity that in fact was within the discretion of the official 
concerned, it can not be treated as partiality from the legal point of 
view.
    Complaint was made that in various instances friends of the 
contestant were impeded in getting access to registration books in time 
to make proper inquiry as to ground for preferring challenges on 
challenge day or at the polls. However, even putting the worst face on 
the episodes cited, the offenders, if they were such, generally kept 
within the letter of the law, and the exceptions were neither 
considerable nor important enough to be given much weight in the 
balancing of considerations.

[[Page 1410]]

    In his minority views Mr. Cable contended:

                delay depriving republicans from voting

    In Stanly County, Fur and Big Lick precincts are heavy Republican. 
The Democrats so conducted the election in these two precincts that 
many Republicans were deprived of casting their vote for contestant. In 
Fur precinct the polls were opened so that voting began about 8 
o'clock, when the law requires the opening of the polls at sun-up--a 
delay of at least an hour and a half. . . .
    In both of these precincts Democrats were given preference in being 
permitted to vote, so that when the polls were closed those without and 
not being permitted to vote numbered 254 Republicans and 24 Democrats, 
or a ratio of 10 to 1, while the record shows that the vote cast in 
these precincts ran 3 Republicans to 1 Democrat.
    The vote in these precincts does not compare in number to the vote 
in some of the heavy Democratic precincts. It ran as high as 1,600. The 
record is filled with many other cases of illegality and fraud, but it 
is not necessary to go into them in this report. Not only the rights of 
contestee and contestant are at issue here, but the rights of the 
people of the district and of the State, and of the people of the 
United States are involved. The undersigned respectfully contends that 
it is impossible to separate the legal from the illegal absentee 
ballots, and therefore all absentee ballots must be thrown out and 
deducted so that the final vote in this case should be as follows:

------------------------------------------------------------------------
                                                     Campbell   Doughton
------------------------------------------------------------------------
Cast in person....................................     31,655     31,338
Unlawfully deprived of voting.....................        254         24
                                                   ---------------------
        Total.....................................     31,909     31,362
Campbell's lawful majority........................        547  .........
------------------------------------------------------------------------

    I therefore recommend to the House that ``James I. Campbell was 
elected as Representative from the eighth congressional district of 
North Carolina, and is entitled to a seat herein; and that Robert L. 
Doughton is not duly elected as Representative in this Congress from 
the eighth congressional district of North Carolina, and is not 
entitled to retain his seat herein.''

    Suffrage.--Widespread failure to observe state constitutional 
requirements for payment of poll tax and for a literacy test, tacitly 
approved by the parties and election officials, absent fraud and not 
affecting the election result, was censured by an elections committee 
but held not to be sufficient grounds for voiding the election.
    Majority report for contestee, who retained his seat as the House 
took no disposition.
    Minority report for contestant.
    The majority report concluded:

[[Page 1411]]

                               poll taxes

    The constitution of the State required, with certain exceptions, 
the prepayment of poll taxes as a qualification for voting. The 
requirement was in general disfavor, and indeed at this very election 
was taken out of the constitution. Nevertheless, it was at the time a 
living thing and should have functioned, universally and impartially. 
It did not so function. In one county, by definite agreement between 
the organizations of both parties, the law was not enforced at all. 
Throughout the district it was not enforced against men in the military 
service, justification being supposedly found in an opinion of the 
attorney general of the State which held that such men might be 
exempted. In many other instances enforcement or refusal to enforce was 
more or less arbitrary and accidental, seeming to depend on the whim of 
the officials or the sentiment of the locality. Of course this opened 
wide the door for abuse, and abuse walked in. Each side contends that 
many votes improperly cast accrued therefrom to the benefit of the 
other. To determine the facts and strike a completely accurate balance 
would be impossible without prolonged and exhaustive individual inquiry 
on the spot, and even then the lack of certain records would so 
embarrass investigation as to cloud its results. For example, in 
Iredell County, where it was agreed that the poll-tax requirement 
should not be enforced, the sheriff did not certify the list of those 
who had paid, as required by law. This might entail individual inquiry 
as to the legality of every vote east in the county. Furthermore, that 
would be of no avail unless the voters were compelled to disclose the 
character of their votes, which raises the mooted question of violation 
of the secrecy of the ballot. Indeed, the situation is so confused that 
the contestant asks us to throw out the whole vote of the county. Such 
drastic treatment does not seem to us called for by the circumstances. 
The contestant saw fit not to rely solely upon his request, but 
proceeded with examination of many Iredell County witnesses in this 
particular, and we deem it sufficient to content ourselves with their 
testimony and that of witnesses for the contestee in the same field. 
The same course has been pursued in respect of the contentions about 
votes said to be invalid because of nonpayment of poll taxes in the 
other counties and of absentee votes as well as of those personally 
cast.

                        literacy qualifications

    The constitution of the State requires, with exceptions not now of 
material consequence, that every person presenting himself for 
registration shall be able to read and write. As in the case of the 
poll-tax provision, this requirement was extensively ignored. In 
certain parts of the district the people seem to have been unanimous in 
the opinion that their judgment in this particular was above the 
constitution. Each side contends that as a consequence the other gained 
many votes with which it ought not to have been credited. Here, too, an 
attempt to determine the facts with complete accuracy would require 
lengthy and laborious inquiry on the spot, with little promise of 
satisfactory conclusion, and we have thought it sufficient to rely on 
the testimony.

[[Page 1412]]

    These kindred contentions, relating to constitutional requirements 
in the matter of poll-tax and literacy qualifications, furnish the main 
question of principle involved in this case. It will be seen to differ 
from the usual contest in that the important complaint is not of 
restraint of suffrage, nor its improper extension on a large scale 
without the knowledge or consent of a candidate or his adherents, but 
of such an extension made with common knowledge and general consent. 
Strictly speaking, there is no difference in effect between the 
suppression of votes and their nullification by offsetting votes 
illegally cast. The question here is whether the approval, avowed or 
tacit, by the candidates and their adherents, prior to the conclusion 
of the election, alters the situation.

    Precedents to help us are rare. We have found but two cases 
throwing any light on the question. In Taliaferro v. Hungerford, 
Thirteenth Congress, with regard to certain irregularities in the 
conduct of polling, declared by the sitting Member to be matters of 
general practice and sanctioned by long usage, the committee 
pronounced:

         We feel no hesitation in saying that custom ought not to 
     justify a departure from the letter and spirit of positive 
     law.

    Therefore the committee recommended that the election be set aside. 
The House refused to take this advice and recommitted the matter, 
whereupon the committee again reported that the election should be set 
aside because it had been conducted in an irregular manner. This time 
the House squarely took issue with the committee and voted that the 
sitting Member should keep his seat.
    In a case from the same State in the following Congress, 
Porterfield v. McCoy, the sitting Member advanced an agreement between 
himself and the petitioner under which a certain class of votes should 
be received at the polls, another should be rejected, and persons 
having a right to vote in one county but happening to be at an election 
in another county of the same district might vote in such other county. 
The committee was of the opinion that the agreement of the parties 
could neither diminish nor enlarge the elective franchise as secured to 
the freeholders of the district. This view, however, did not cost the 
sitting Member his seat, for, after throwing out the votes that on 
various grounds were held to be illegal, he was found still to have a 
majority.
    These cases do not cover the whole matter here in issue. The first 
indicates merely that the House was averse to annulling an election 
where custom had sanctioned irregularities that in fact related to form 
rather than substance. The second did not go beyond agreement between 
candidates and at most was obiter. So we are still confronted by the 
question:
    When an electorate deliberately and with common consent disregards 
the provisions of a State constitution to an extent clouding the 
result, has there been a valid election?
    It is a question of much perplexity. On the one hand there is grave 
danger in encouraging the belief that a constituency may violate 
constitutional injunctions with impunity. On the other hand there is 
grave doubt whether Congress may properly mete out punishment when 
there is no clear and

[[Page 1413]]

convincing proof that the will of the constitutional majority has been 
thwarted. Balancing these considerations, your committee has concluded, 
though not without misgivings, that when acts alleged to have violated 
the provisions of a State constitution do not appear to have changed 
the result, either by themselves or in combination with statutory 
misdemeanor, the House is not justified in declaring a seat vacant.
    This neither excuses nor palliates the conduct in question. We have 
no hesitation in declaring that it was reprehensible. Respect for law 
and observance of constitutions are essential to the safety of our 
common rights. If either basic or secondary law ceases to represent the 
will of the majority, it should be annulled or changed, but while it 
stands, it should be enforced. We are not called upon to consider what 
may be the duty of the State itself in the way of prevention or 
penalty. Our position simply is that failure to enforce the provisions 
of a State constitution, a failure generally approved or acquiesced in 
by candidates and electors, without conscious defiance of authority, 
and without heinous circumstances, resulting from no wish or intent to 
work injustice, and not proved to have altered the result, will not in 
and of itself suffice to vitiate an election to the House of 
Representatives.
    Confining ourselves, then, to inquiry as to individual votes as far 
as illuminated by the testimony, and taking that testimony at its face 
value, with due allowance for contradiction, we have sought to strike a 
balance between the contentions of the opposing parties. By reason of 
the great intricacy of the record, which is confused by duplications 
and a large variety of uncertainties, mathematical accuracy in this 
balance is impossible, but we have been able to satisfy ourselves that 
even with liberal allowance of the contestant's claims, the majority of 
the contestee would not be overcome.
    Therefore the committee recommends to the House the adoption of the 
following resolutions:

         Resolved, That James I. Campbell was not elected a 
     Representative from the eighth congressional district of the 
     State of North Carolina and is not entitled to a seat herein.
         Resolved, That Robert L. Doughton was duly elected a 
     Representative in this Congress from the eighth congressional 
     district of the State of North Carolina and is entitled to 
     retain a seat herein.

    Reported privileged resolution (H. Res. 355) was considered under 
extended debate, contestant participating in debate, but without final 
House disposition [62 Cong. Rec. 7808, 67th Cong. 2d Sess., May 27, 
1922; H. Jour. 389].

Sec. 3.6 Paul v Harrison, 7th Congressional District of Virginia.

    Registration.--State constitutional requirement that voters file 
unassisted, handwritten applications was held mandatory, voiding 
ballots cast by voters not filing or assisted in filing registration 
applications.

[[Page 1414]]

    Registration.--Ballots cast by voters filing defective unassisted 
written applications were held merely voidable and were counted where 
supplemented by oral examination under oath by a registrar as permitted 
by the state constitution.
    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on June 14, 1922, follows:

                            Report No. 1101

                Contested Election Case, Paul v Harrison

                         statement of the case

    At the election held in the seventh congressional district in the 
State of Virginia on November 2, 1920, according to the official 
returns, Thomas W. Harrison, the contestee, who was the Democratic 
candidate, received 13,221 votes and John Paul, the contestant, who was 
the Republican candidate, received 12,773 votes. As a result of these 
returns Thomas W. Harrison, the contestee, was declared elected by a 
majority of 448 votes over his Republican opponent, John Paul, and a 
certificate of election was duly issued to him by the secretary of 
state of Virginia.
    On December 18, 1920, the contestant, in accordance with law, 
served on the contestee a notice of contest in which were set forth 
numerous grounds of contest which may be summarized under three main 
heads:

    1. That a large number of persons voted at this election who were 
not lawfully registered, and therefore under the constitution of 
Virginia were not qualified to vote, and that if the votes of these 
persons were eliminated the contestant would be elected.
    2. That a number of persons voted at this election without paying 
their poll tax, as required by the constitution and laws of Virginia, 
and that if the votes of these persons were eliminated, together with 
the other facts in the case, the contestant would be elected.
    3. That the conduct of the election in certain precincts of the 
district was marked by such reckless disregard of the provisions of the 
constitution and laws of Virginia that the returns from those precincts 
do not represent the expression of the will of the people; that there 
was no valid election in those precincts, and therefore the returns 
from them should be thrown out, in which case the contestant would be 
elected.
    To this notice of contest the contestee on January 14, 1921, served 
on the contestant an answer denying all the allegations contained in 
the contestant's notice, charging numerous cases of illegal 
registration, and making sundry allegations of irregularities in 
certain voting precincts of the district.

                         work of the committee

    The testimony in the case having been printed and printed briefs 
having been duly filed by both parties, hearings were given to the 
parties by the committee on Tuesday, February 7, and Wednesday, 
February 8, 1922, at which oral arguments were presented by the 
contestant and his counsel,

[[Page 1415]]

Henry W. Anderson, Esq., and by the contestee and his counsel, William 
M. Fletcher, Esq. Since the close of the hearing the committee has 
examined the long and voluminous record and given the case most careful 
and painstaking consideration.

                          illegal registration

    Under section 18 of the constitution of the State of Virginia no 
one is allowed to vote who has not been registered, and the 
requirements for registration for all persons registered since January 
1, 1904, as provided in section 20 of said constitution, are very 
drastic. These requirements on the voter are as follows:

         1. That he has personally paid to the proper officer all 
     State poll taxes assessed or assessable against him, under 
     this or the former constitution, for the three years next 
     preceding that in which he offers to register; or, if he came 
     of age at such time that no poll tax shall have been 
     assessable against him for the year preceding the year in 
     which he offers to register, has paid $1.50, in satisfaction 
     of the first year's poll tax assessable against him.
         2. That, unless physically unable, he make application to 
     register in his own handwriting, without aid, suggestion, or 
     memorandum, in the presence of the registration officers, 
     stating therein his name, age, date and place of birth, 
     residence and occupation at the time and for the two years 
     next preceding, and whether he has previously voted; and if 
     so, the State, county, and precinct in which he voted last.
         3. That he answer on oath any and all questions affecting 
     his qualifications as an elector submitted to him by the 
     officers of registration, which questions and his answers 
     thereto shall be reduced to writing, certified by the said 
     officers, and preserved as a part of their records.

    In the voluminous record in this case there is evidence of hundreds 
and even thousands of cases of persons who were registered although no 
applications at all had been filed with the registrar. There are also 
numerous instances in the record where assistance was given to 
applicants for registration, either by the registrar himself or by some 
third person. In addition to this the contestee introduced in evidence 
a large number of cases of persons who were placed on the registration 
list whose applications were not in strict conformity with the 
requirements of the constitution.
    Both the contestee and his counsel contended that these provisions 
of the constitution were merely directory and not mandatory, and that 
the votes of persons not registered in conformity with the constitution 
could not be questioned at the election, the only remedy being to have 
the names of persons thus illegally registered stricken from the voting 
list previous to the election, as provided in the constitution. On the 
other hand the contestant and his counsel contended that these 
provisions of the constitution being mandatory on the legislature of 
the State are also mandatory on the reg

[[Page 1416]]

istration and election officials; and that where no application is 
filed the registrar acquires no jurisdiction and the vote of any person 
placed on the registration list in the absence of such application is 
void ab initio. . . .
    In regard to the facts relative to the registration at this 
election of persons who had filed no applications there is no room for 
difference of opinion, as the contestant proved his case by calling as 
witnesses the registrars in the various precincts who under the system 
in vogue in Virginia were all members of the party to which the 
contestee belonged, and they testified that they registered the voters 
whose names were inquired of without requiring any written applications 
as required by the constitution. In a large number of the precincts 
registrars testified that they had never received any written 
applications during their entire terms of office. The committee finds 
that there were almost 1,900 cases of such illegal registration of 
persons whose names were set out in the contestant's notice and in the 
contestee's answer. In addition there were almost 3,200 additional 
cases of void registrations not set out in the notice and answer but 
shown by the evidence, making a total of over 5,000 cases of persons 
who voted at the last congressional election in this district whose 
registration and therefore whose votes were invalid. In its 
consideration of the evidence the committee has in the first instance 
confined itself to the names set forth in the notice and answer on the 
theory that where the parties in their pleadings set up particular 
names they should be strictly held to the names set forth in the 
pleadings.
    The contestant further contended that the votes of persons who were 
assisted in making their applications, either by the registrar or by 
other parties, are equally void ab initio and should not be counted. In 
view of the fact that the constitution provides that the voter must 
make application ``without aid, suggestion, or memorandum, in the 
presence of the registration officer,'' the committee is of the opinion 
that this contention is sound, as the written applications in such 
cases would not be the applications of the voters themselves.
    While the contestee vigorously contended throughout the taking of 
the testimony and at the hearings before the committee that all the 
votes of persons registered contrary to the provisions of the 
constitution should be counted on the ground that the registration 
could not be attacked collaterally, he also contended that if the 
committee should decide against him, all applications which did not 
strictly contain all the information set forth in the constitution 
should be treated in the same manner, and he had placed in the record a 
large number of alleged defective applications.

    The committee has examined with care the applications in the cases 
of all persons whose names were set forth in the contestee's answer and 
finds that a very large number of the applications contain all the 
information required by the second clause of section 20 of the 
constitution. In the case of a considerable percentage of the 
applications which are technically defective the voters, mostly women, 
voting for the first time under the nineteenth amendment to the Federal 
Constitution, have simply neglected to state that they had never before 
voted, a fact of which any court might well take judicial notice. The 
contestant contends that it would be absurd to place such defective 
applications in the same category as cases where no applications were

[[Page 1417]]

filed or where assistance was given, and cites the analogy of the 
validity of a judgment, even though the notice, in a court of record, 
is grossly defective in form, once the court has acted on it and when 
judgment is given. He also calls attention to the fact that, although a 
notice in a suit is defective, amendments are invariably allowed by the 
courts whenever the interests of justice demand.
    The committee is of the opinion that this analogy is sound. As 
Judge McLemore well says in the Suffolk Local Option Election case (17 
Va. Law Reg. 358) before referred to--``the registrar has no 
jurisdiction in the premises until there has been an application as 
specifically provided by the constitution.'' The fact that the third 
paragraph of section 20 of the Virginia constitution provides for an 
examination under oath of the applicant by the registrar as to his 
qualifications, implies that the written application might not contain 
all of the required information; otherwise the registrar would not need 
to ask the applicant any questions but could from the application 
itself, after having sworn the applicant, make the proper entries on 
the registration book. If, however, the written application is 
imperfect then the registrar can put the name of the applicant on the 
registration book after asking him questions as to his qualifications.
    In other words, while the registrar has no authority under the 
constitution to ask any questions or to do anything else until a 
written application has been made to him by a person in his own 
handwriting, without aid, suggestion, or memorandum, when such 
application has been made, however defective it may be, then the 
registrar has jurisdiction to act, and he can ask the applicant any 
questions about his qualifications to vote, the registrar in such cases 
being required to reduce such questions and answers to writing and to 
preserve them. Consequently the committee is of the opinion that 
defective applications when once received by a registrar, under the 
Virginia law are not void but merely voidable, and the vote of a person 
registered on such an application supplemented by the examination under 
oath by the registrar should not be thrown out in an election contest.
    While this is the opinion of the committee, nevertheless, in 
arriving at its final result the committee has considered not only the 
defective applications in the cases of the names set forth in the 
contestees answer, but also all the defective applications offered in 
evidence by the contestee accompanied by proof that the parties 
actually voted at the congressional election even where the names were 
not set forth in the answer.

    The following minority views were submitted by Mr. C. B. Hudspeth, 
of Texas, and Mr. Alfred L. Bulwinkle, of North Carolina:

    If the same standards are applied to many precincts carried by the 
contestant as have been applied to the precincts carried by the 
contestee and rejected by the committee and this method of treating 
illegal votes is adopted, the contestee would be elected by a majority 
in excess of that shown by the returns. In the absence of any data or 
statistics we are unable to determine how the committee arrive at the 
figures in which in any one of seven alternatives they find that the 
contestant received a majority. We have care

[[Page 1418]]

fully considered the results of the election and have come to the 
following conclusion:
    First. The majority at each precinct by its ruling disfranchises a 
very large per cent of the voters about whose registration and their 
right to assistance no question can be raised. They were registered 
prior to 1904 and were entitled to vote with or without assistance.
    Second. Hundreds of others, who registered properly according to 
the views of the majority and cast their ballot without assistance are 
disfranchised on the vaguest testimony of assistance of some vague kind 
to some unidentified voters, or because some did not make a proper 
application. In many of the precincts the challenged vote proved to 
have voted, is very small compared to the unchallenged vote. . . .
    Fourth. Contrary to the Virginia constitution and contrary to the 
decision of Judge McLemore, emphasized by his letter, the majority 
holds, that a mere written application, though in no wise complying 
with the requirements of Virginia law is sufficient, and without a 
written application is void.

    Suffrage.--Ballots cast by voters not paying the poll tax required 
by the state constitution were rejected.
    State election law requiring bipartisan judges, prohibiting 
assistance to voters at registration and polling places, and requiring 
proper custody and secrecy of ballots was held mandatory.
    Returns were totally rejected in precincts where election 
official's fraud or irregularities violated mandatory state election 
laws; and, in other precincts, where rejected either on the basis of 
the number of voided ballots actually proven to have been cast for each 
candidate, or by proportional deduction method where it could not be 
determined for which candidate illegal ballots had been cast.
    Majority report for contestant, who was seated.
    Minority report for contestee, who was unseated.
    The majority report concludes:

                               poll taxes

    Both parties in the present case agree that the votes of persons 
who have failed to pay their poll taxes, as required by the 
constitution, should not be counted in determining the result of the 
election. While a great deal of space in the printed record and in the 
briefs is taken up with this question of poll taxes owing to the fact 
that both the contestant and the contestee in their pleadings, charged 
that a large number of persons were illegally permitted to vote who had 
not paid their poll taxes, the committee finds that the charges were 
sustained in only about a hundred cases. Where the evidence shows for 
whom the person voted deduction has been made from the vote of that 
particular candidate, and where there is no evidence how the party 
voted a deduction has been made pro rata from the total vote of both 
candidates in the particular precinct. . . .

[[Page 1419]]

    Under this grossly unfair system the legislature elects the judges 
of the circuit court, all of whom are members of the dominant party, 
even in those circuits where a majority of the voters belong to the 
minority party. The decisions of these circuit judges in all election 
cases are final, there being no appeal to the appellate court, as in 
other States. These judges appoint, in each county and city, electoral 
boards of three members each, with no provision for minority 
representation, and these boards are almost invariably composed 
entirely of partisans of the dominant party. The electoral boards in 
turn choose the registrars, who are always members of the party in 
power, and also the judges and clerks of election. In the case of the 
latter the only provision for minority representation is the loosely 
drawn requirement that in the appointment of the judges of election 
representation ``as far as possible'' shall be given to each of the two 
major political parties, but in all cases the selection of the so-
called minority member is exclusively in the hands of the electoral 
board, which, as mentioned above, is always in the control of the 
majority party.

    At the congressional election held in the seventh congressional 
district in 1920 the election machinery was absolutely in the control 
of the political party to which the contestee belongs. The judges who 
appointed the electoral boards were all Democrats and all the electoral 
boards, except in the counties of Rockingham and Page, were made up 
exclusively of members of the same party.
    In addition to the utter disregard of the mandatory provisions of 
the State constitution respecting registration and the failure to 
conform to the requirement in respect to the appointment of Republican 
judges of election, there were also in a large number of precincts 
violations of the constitutional and statutory provisions concerning 
the secrecy of the ballot, the keeping of the ballot box in view, the 
counting and disposition of the ballots, and especially the provision 
prohibiting the election officials from giving assistance to voters 
unless registered previous to 1904 or unless physically disabled. . . .

                         summary and conclusion

    After a careful and exhaustive consideration of all the evidence 
the committee finds that in the precincts of Howardsville, Wingfields, 
North Garden, Owensville, Lindsey, Covesville, Carters Bridge, Court 
House, Monticello, Batesville, Keswick, Stony Point, Porters, 
Hillsboro, Free Union, Ivy, and Scottsville in Albemarle County; in the 
fourth ward of the city of Charlottesville; in the precincts of Mount 
Airy, Russells, and White Post, in Clarke County; in the precincts of 
Dry Run, Old Forge, Brucetown, Newtown, or Stephens City, Greenwood, 
Gore, Neffstown, Middletown, Kernstown, Armel, Gainsboro, and 
Canterburg in Frederick County; in both wards of the city of 
Winchester; in the precincts of Mount Olive and Fishers Hill in 
Shenandoah County; and in the precinct of Mount Crawford in Rockingham 
County; there was such an utter, complete and reckless disregard of the 
mandatory provisions of the fundamental law of the State of Virginia 
involving the essentials of a valid election, that it can be fairly 
said that there was no legal election in those precincts. Consequently, 
in accordance with the universally accepted principles of the law 
governing contested elections and

[[Page 1420]]

in conformity with a long line of congressional precedents, from the 
Missouri case of Easton v. Scott in the Fourteenth Congress (Powell's 
Digest, p. 68) down to and including the cases of Wickersham v. Sulzer 
in the Sixty-fifth Congress, of Tague v. Fitzgerald in the Sixty-sixth 
Congress, and of Farr v. McLane decided by this committee in the same 
Congress, the committee is of the opinion that the entire returns of 
these precincts should be rejected.
    Rejecting the returns from the above precincts, and, in accordance 
with congressional precedent, deducting from the total returned votes 
of the contestant and contestee in the remaining precincts of the 
district the votes of all persons whose votes were void because of 
nonpayment of poll taxes or on account of illegal registration where it 
was definitely proved for whom they voted, and in all other cases 
deducting such void votes pro rata, the result of the congressional 
election held in the seventh district of the State of Virginia on 
November 2, 1920, would be as follows: John Paul, Republican, received 
10,001 votes; Thomas W. Harrison, Democrat, received 8,445 votes; and 
the contestant is elected by a majority of 1,556 votes. If in addition 
there are deducted in like manner the votes of all persons named in the 
contestee's answer whose written applications were proved to be 
defective in form (although the committee is of the opinion, as already 
stated, that such votes are not void), the result of the election is 
found to be as follows: John Paul, Republican, received 9,637 votes; 
Thomas W. Harrison, Democrat, received 8,431 votes; and the contestant 
is elected by a majority of 1,206 votes.
    Moreover, if in addition there are deducted pro rata the votes of 
all persons who were registered by Democratic registrars in Republican 
precincts, whose written applications were not in strict conformity 
with the Virginia constitution, and which were offered in evidence by 
the contestee but not set forth in his answer, in spite of the fact 
that the committee has limited the contestant in the matter of illegal 
votes to names set forth in his notice of contest, the result of the 
election would be as follows: John Paul, Republican, received 9,036 
votes; Thomas W. Harrison, Democrat, received 8,084 votes; and the 
contestant is elected by a majority of 952 votes. Again, if the 
contestee is given credit for all defective applications claimed by 
him, regardless of whether they are in fact defective and regardless 
also of any proof that the persons in question actually voted, the 
result would be as follows: John Paul, Republican, received 8,680 
votes; Thomas W. Harrison, Democrat, received 8,068 votes; and the 
contestant would still be elected by a majority of 612 votes.
    Furthermore, if the returns from none of the precincts are 
rejected, although many of them clearly ought to be for the reasons 
hereinbefore stated, and the votes that are illegal and void on account 
of no written applications being filed by the voter ``without aid, 
suggestion, or memorandum,'' and on account of the nonpayment of the 
poll tax, as required by the constitution of the State of Virginia, are 
deducted from the returns in the manner hereinbefore described, under 
the construction of the law as found by the committee that the votes of 
persons registered on written applications without assistance, if 
received by the registrar, are not void but merely voidable, the result 
of the election would be as follows: John Paul, Republican, received 
11,607 votes; Thomas W. Harrison, Democrat, received 10,265 votes; and 
the

[[Page 1421]]

contestant is elected by a majority of 1,342 votes. If in addition 
there are deducted from the returns the votes of persons whose names 
were set out in the contestee's answer whose written applications were 
defective in form, although, as above stated, the committee does not 
consider that such votes are void, the result would be as follows: John 
Paul, Republican, received 11,158 votes; Thomas W. Harrison, Democrat, 
received 10,911 votes; and the contestant is elected by a majority of 
247 votes. Finally, if neither party is confined to the names set out 
in the pleadings, although the committee is of the opinion that in all 
fairness they should be, and the votes of all persons who voted and 
whose registration was illegal because of the failure to file written 
applications without assistance, or whose applications although 
accepted by the registrar were actually defective in form, are deducted 
from the returns in the manner hereinbefore described, the result would 
be as follows: John Paul, Republican, received 9,312 votes; Thomas W. 
Harrison, Democrat, received 9,074 votes; and the contestant is still 
elected by a majority of 238 votes.
    Your committee therefore respectfully recommends to the House of 
Representatives the adoption of the following resolutions (H. Res. 
469):

         Resolved, That Thomas W. Harrison was not elected a 
     Member of the House of Representatives from the seventh 
     congressional district of the State of Virginia in this 
     Congress and is not entitled to retain a seat herein.
         Resolved, That John Paul was duly elected a Member of the 
     House of Representatives from the seventh congressional 
     district of the State of Virginia in this Congress and is 
     entitled to a seat herein.

    Mr. Hudspeth and Mr. Bulwinkle concluded in their minority views:

    In our opinion in order to warrant the rejection of the returns at 
any precinct it was incumbent upon the contestant to show facts which 
warranted the disenfranchisement of every voter at such precinct, or at 
least to make an effort to do so. In most of the precincts which were 
rejected only a relatively small portion of those registered were shown 
not to have complied with the constitutional requirements, and many of 
the voters necessarily need not have complied with such requirements. 
At such precincts many of the voters were entitled to assistance 
because they had registered prior to 1904, and the evidence as to 
assistance was so vague and indefinite in respect to the character of 
the assistance and who and how many were assisted that in our judgment 
it constitutes no ground for the rejection of the poll. Certainly 
voters entitled to assistance should not be disenfranchised and not 
allowed to participate in the election in question because some 
assistance might have been given to those not entitled to assistance, 
and such voters entitled to assistance should not suffer on account of 
the delinquency of any of the election officers and other voters. It is 
incumbent upon the contestee to use every effort to show the number of 
those illegally assisted and who they were and also establish the 
number of persons as to whom

[[Page 1422]]

no complaint as to registration or assistance could be made and thus 
afford a basis for some correct conclusion to be made by the committee. 
At not a single precinct in the district did the contestant make any 
effort to do this. Not a single person was called to show that he was 
assisted. On the contrary, the contestant in introducing evidence as to 
assistance merely asked whether the judges would assist the voter and 
sometimes asked whether they would do so, without regard to whether 
they were on the permanent or the new roll. No attempt was made in most 
instances to establish the character of the assistance or whether it 
consisted in merely giving information as to how to mark the ballot or 
in the actual marking of the ballot 
itself. . . .
    It was incumbent upon the contestant to establish these facts. Did 
space permit, other instances might be cited of a similar nature in 
respect to assistance. From an examination of the facts and a 
consideration of the law we are of the opinion that the returns from 
the precincts rejected by the committee should not have been rejected 
and that the proper course to have been pursued would have been to 
apportion the illegal votes proved to have been cast. . . .
    Third. The majority ruled, that the parties were confined to the 
names set up in the notice and answer and denied the right to prove 
that any one voted for contestant by circumstances. The result was 
reached, that the very persons set up in the answer as having voted for 
contestant and proved by strong uncontradicted evidence to have so 
voted under the proportionate rule were counted as having voted for 
contestee. . . .
    Fifth. Hundreds of names not in his notice were introduced in 
evidence by contestant in his own time, and hundreds of others in 
contestee's time and at his expense. Furthermore contestee introduced 
evidence not to prove illegal votes for he has always claimed the votes 
were legal, but to prove that contestant was not prejudiced by the 
construction of the law adopted by the election officials in which 
contestant for years has acquiesced.
    Sixth. The majority does not enter into specifications and it is 
impossible to understand their figures, but they show very little 
consideration given to the record, when they say there were only a few 
Republican precincts at which persons were registered without written 
application. Counting Ottobine, in Rockingham County, where there was 
no sort of individual action on the part of the registrant and where 
the registrations are admitted to be void, there are 49 precincts in 
the evidence at which parties were allowed to register without a 
written application. Four of these were about a tie, but 23 of them, 
Republican precincts. If the proof of contestee is admitted as to how 
the voter cast his ballot, 666 would be deducted from contestant's 
vote, and 505 from contestee, and the contestee would be elected by 609 
majority instead of 448. If, however, the loss at each precinct is 
apportioned, then 505 would be deducted from contestee and 407 from 
contestant and contestee would still be elected by 350 majority.
    If the defective registrations are not counted, then under the 
apportionment plan contestee would be elected by 932 majority and by 
proof of how the voter voted, by 1,382 majority.

[[Page 1423]]

    At this election, owing to the admission of the women to suffrage, 
the registration was very heavy. It is estimated that about 8,000 women 
registered and as the Republicans were far more active and enthusiastic 
than the disunited and dispirited Democrats, nearly 2 to 1 of these 
women were Republicans. It is only natural, therefore, if there were 
any flaws in the registration, the Republicans would be the greater 
sufferers.
    Seventh. The majority in one of its summations, undertakes to give 
a result based on a count of all illegal ballots and reaches this 
conclusion, to wit: John Paul received 9,312 votes and Thomas W. 
Harrison 9,074. Again the majority fails to furnish any basis for its 
figures, and it is impossible for the same to be correct. According to 
this estimate the total vote was 18,386, and the total, according to 
the certified returns, is 25,994. The majority has deducted, therefore, 
7,608 as illegal votes. A careful tabulation by precincts shows that 
the total number of votes about which, in the evidence, there is the 
slightest suggestion of illegality is only 5,834, and this is much in 
excess of the true illegal vote. So that 1,764 votes are deducted more 
than in the evidence are suggested as illegal.
    In the precincts of ward 1, ward 2, ward 3, Charlottesville; 
Lindsey, Keswick, Stony Point, Crozet, Amisville, Woodville, Edinburg, 
Mount Jackson, McGaheysville, Keezleton, and West Harrisonburg 
registrants were permitted to have the benefit of the statute.
    In the precincts of Howardsville, White Hall, Hillsboro, Free 
Union, North Garden, Owensville, Batesville, Carters Bridge, Russells 
(Clarke County), Shenandoah, Pine Hill, Quicksburg, Hudson Cross Roads, 
Strasburg, Printz Mills, Columbia Furnace, Shirley, Leaksville, Luray, 
Elkton, Singers Glen, Swift Run, Melrose, and Porters there was 
evidence of assistance of an indefinite or more or less indiscriminate 
character, but who were assisted and in what the assistance consisted 
is vague and indefinite. Of these precincts 10 are Democratic, 13 
Republican. It has not seemed fair to undersigned to disfranchise those 
properly registered by proving somebody received some sort of 
assistance to which by possibility he might not have been entitled, but 
if any uniform or fair rule is applied it will add to contestee's 
majority.
    The undersigned therefore recommend that the House adopt the 
following resolutions:

         Resolved, That John Paul was not elected a Member of the 
     House of Representatives from the seventh congressional 
     district of the State of Virginia in this Congress and is not 
     entitled to a seat herein.
         Resolved, That Thomas W. Harrison was duly elected a 
     Member of the House of Representatives from the seventh 
     congressional district of the State of Virginia in this 
     Congress and is entitled to retain a seat herein.

                                                 C. B. Hudspeth.      
                                                A. L. Bulwinkle.      

    The reported privileged resolution (H. Res. 469) recommended in the 
majority report was permitted consideration (when the Speaker

[[Page 1424]]

overruled a point of order that the committee report had not been 
printed when first submitted), was debated, and was divided for the 
vote (the first part being agreed to 203 yeas to 100 nays with 2 
``present''; the second part being agreed to 201 yeas to 99 nays with 2 
``present'') [64 Cong. Rec. 531, 67th Cong. 4th Sess., Dec. 15, 1922; 
H. Jour. 59-61].

Sec. 3.7 Gartenstein v Sabath, 5th Congressional District of Illinois.

    Evidence not taken by contestant within the legal time was held 
inadmissible where an extension of time for good cause was not sought, 
and as stipulations of the parties for extensions are not binding on 
the House.
    Report of Committee on Elections No. 3 submitted by Mr. Cassius C. 
Dowell, of Iowa, on Dec. 20, 1922, follows:

                            Report No. 1308

             Contested Election Case, Gartenstein v Sabath

    At the general election held in the fifth congressional district of 
the State of Illinois on November 2, 1920, Jacob Gartenstein, the 
contestant herein, was the Republican candidate and Adolph J. Sabath 
was the Democratic candidate for Representative in the Congress of the 
United States. William Newman was the Socialist candidate and received 
a number of votes. Adolph J. Sabath at said election was declared 
elected, and a certificate was issued to him accordingly.
    On the 21st day of December, 1920, Jacob Gartenstein served notice 
of contest upon Adolph J. Sabath, setting forth certain grounds of 
contest and charging fraud, irregularities, errors, and mistakes in the 
returns from certain precincts at said election, and charging that 
while the official returns showed Adolph J. Sabath to be elected by a 
plurality of 298 votes, a true and correct tabulation of the votes cast 
at the election in said fifth congressional district would show that 
the contestant, Jacob Gartenstein, was elected by a plurality of more 
than 1,500 votes.
    On January 15, 1921, Adolph J. Sabath, the contestee, served his 
answer upon contestant, denying the allegations in the contestant's 
notice and petition, and denying that there was any miscounting or 
mistabulating in the counting of votes in said precincts. . . .
    It will be noted that contestant began taking testimony 25 days 
after the time for his taking testimony had expired under the statute, 
and closed his taking of testimony under the various stipulations 80 
days after his 40 days for taking testimony under the statute had 
expired. . . .
    The section of the statute providing for the taking of testimony in 
a contested-election case is in the following language:

         Sec. 107. In all contested-election cases the time 
     allowed for taking testimony shall be 90 days, and the 
     testimony shall be taken in the following order: The 
     contestant shall take testimony

[[Page 1425]]

     during the first 40 days, the returned Member during the 
     second 40 days, and the contestant may take testimony in 
     rebuttal only during the remaining 10 days of said period. 
     This shall be construed as requiring all testimony in cases 
     of contested elections to be taken within 90 days from the 
     date on which the answer of the returned Member is served 
     upon the contestant.

    While this statute has been held to be directory, and is not 
binding upon the House, yet under ordinary circumstances the contestant 
has been required to commence and complete his evidence within the 40 
days allowed by statute, and if further time is required it must be 
granted by the House, and may be granted only after showing a good and 
sufficient reason therefor. . . .
    In the case under consideration the contestant not only does not 
show diligence but the record clearly shows without reason or excuse by 
numerous stipulations undertook to set aside the operation of the 
statute and practically took no testimony in the 40 days allowed him by 
statute. Had the contestant come before the House asking for an 
extension of time to take testimony after the expiration of the 40 days 
there can be no question this would not have been granted to him, for 
the record discloses that he had no good reason to ask for extension of 
time for taking testimony. However, at each date to which extension had 
been made he stipulated with the contestee for further continuances and 
extensions, and without asking leave of the House, undertook to set 
aside the statute limiting time for taking the evidence.
    . . . In the case under consideration there was no question of the 
limitation by the statute, and the record clearly shows that the 
parties were attempting to set aside the operation of the statute by 
agreements between themselves. If this action is to be approved by the 
House, contested-election cases in the future may, by stipulation 
between the parties, be presented to the House at any time the parties 
may see fit, and the statute may thus be nullified.
    Your committee finds in this case that contestant was not diligent 
in prosecuting his case, and did not present his proofs within the time 
prescribed by statute.

    Returns are prima facie evidence of the correctness of an election, 
and may be rejected only by a complete recount of ballots properly 
preserved as best evidence.
    Ballots.--Testimony of witnesses making a tally at a partial 
recount, conducted by an official appointed to receive testimony, was 
held inadmissible where all ballots cast were not offered as evidence 
by contestant at such recount.
    Ballots.--An elections committee refused to order a complete 
recount where ballots and ballot boxes were not proven by contestant to 
have been properly preserved.
    Report for contestee, who retained his seat.

[[Page 1426]]

                        integrity of the ballots

    Notwithstanding the findings of the committee relative to the time 
for taking testimony, your committee has in this case examined the 
record and the evidence relative to other questions raised in the 
contest. . . .
    Before a recount of the ballots may be had in an election contest 
proof of inviolability of the ballot boxes and their contents is 
necessary.
    We will here submit a small part of the record and evidence 
relative to the preservation and care of the ballots in this case: . . 
 
    The above record is set out to show the general condition of the 
ballots and ballot boxes as they were presented to the commissioner 
taking testimony.
    The proofs in this case show that the judges of election, after 
counting and canvassing the ballots, placed them in boxes and delivered 
them to the election commissioners' office. The delivery of these 
ballots began at 8 or 9 o'clock on the evening of the election and 
continued until the afternoon of the following day. The evidence 
discloses that the ballot boxes in some instances were not of 
sufficient size to hold all the ballots cast in the precinct, and when 
this happened the ballots were folded and tied with a rope and the 
bundle was delivered with the ballot box to the commissioners' office. 
The evidence shows these ballots remained in the office of the election 
commissioners for some time and that a number of employees were 
designated to handle the ballots and store them in the vault on the 
floor above. A number of these were temporary employees.
    It is well settled that before resort can be had to the ballots as 
means of proof, absolute proof must be made that the ballots offered 
are the identical ballots cast at the election; that they had been 
safely kept as required by law; that they are in the same condition 
they were when cast; that they had not been tampered with, and that no 
opportunity had been had to tamper with them. The burden of making this 
preliminary proof rests upon the party who seeks to use the ballots as 
evidence. (English v. Hilborn, 53d Cong., Rowell, p. 486.)
    In order to command confidence in a recount ``it is necessary for 
the contestant first to establish the identity of the ballot boxes, 
and, secondly, show that these boxes had been so kept as to rebut any 
presumption that they had been tampered with.'' (Butler v. Layman, 37th 
Cong.) . . .
    The returns of election officers are prima facie correct, and a 
recount showing a different result can not be regarded unless it 
affirmatively appears that the ballots recounted are the same as those 
originally counted and in the same condition.
    The record in this case not only does not show that the ballots 
were folded, wired, and sealed when presented to the commissioner 
taking testimony, as required by law, but the proofs affirmatively show 
that in a number of the precincts the ballot boxes were not tied and 
sealed as required by the Illinois statute. In some instances at least 
the evidence clearly shows that the ballot boxes were not at all sealed 
when taken from the vault, but were tied and bundled together in such 
manner that the boxes could be opened and closed without disturbing the 
appearance of the ballot boxes.

[[Page 1427]]

    With the ballots and ballot boxes in this condition, and with the 
evidence of Mr. Curran that people were in and out of the vault where 
these ballots were kept, it seems to your committee that the proofs of 
the integrity of the ballots have not been established. Therefore your 
committee holds that proofs of the proper and legal preservation of the 
ballots have not been established in this case.

                   the best evidence must be offered

    Contestant, in order to establish his claim of error and miscount, 
called certain witnesses who were clerks in the election commssioner's 
office. These witnesses were called upon by contestant to go through 
the ballots in a number of the precincts in the fifth congressional 
district and announce to another witness, who kept tally of the votes 
announced for Member of Congress in the precinct, which witness 
afterwards read the results of the tally to the commissioner taking 
depositions. In this manner the contestant went through a number of the 
precincts in said fifth congressional district. By the count in this 
manner the vote of the contestant increased in the various precincts 
over that of contestee until by this count contestant had increased his 
vote in the precincts thus counted to overcome the plurality designated 
by the contestee in the official count. Something like half of the 
precincts, by this method, were recounted.
    The ballots in these various precincts were before the 
commissioner, but contestant did not have them identified, nor were 
they offered in evidence. But, over the objection of contestee, the 
witnesses were directed to count the ballots in the above manner and 
report the result of the count to the commissioner taking testimony.
    The election board, under the law, is presumed to have made correct 
returns in this election. . . .
    Your committee is of the opinion that the primary evidence of the 
votes cast for the candidates for Representative in the Congress of the 
United States in this district was the poll books and ballots 
themselves, and that the official count by the election officers should 
not be set aside by the testimony of a witness who merely looked at the 
ballots and testified to the results.
    Upon a proper showing and upon the production of the ballots 
properly protected and preserved, contestant was entitled to a recount 
of these ballots. But this proof should be established by the best 
evidence, and the ballots being present should have been offered in 
evidence as the best evidence in the case. The House will not set aside 
the official count except upon positive proof that the official count 
was incorrect.

                a recount should include all the ballots

    In this case the witness who went through the ballots examined only 
those in perhaps half of the voting precincts in the district. It has 
been held that a recount, if had, should include the ballots in all of 
the precincts in the district.

[[Page 1428]]

    If it is reasonable to suppose that there was error in counting 
ballots in certain precincts, it would be equally reasonable to assume 
that there were errors in counting in the remaining precincts. If any 
recount is ordered it should be of all of the ballots cast in the 
district. (Galvin v. O'Connell, 61st Cong., Supplement Election Cases, 
p. 39.) We quote from the opinion on page 40:

         The contestant asked that about 1,500 ballots cast in 
     said election precincts be ordered recounted by the committee 
     and the House, and the contestee insists that in case this is 
     ordered the order include the whole number of 25,000 ballots 
     cast. On this the committee rules as follows: ``It is the 
     opinion of the committee that if on the evidence submitted it 
     would be reasonable to suppose that there was error in 
     judgment in the counting of the ballots cast in the wards and 
     precincts mentioned by the contestant, it would be equally 
     reasonable to assume that there were errors in judgment in 
     the counting of the ballots in the remaining wards and 
     precincts, and that if any, all of the ballots cast at said 
     election, aggregating 35,669, should be ordered for recount 
     by the committee and the House.''

    Where some of the ballots had not been preserved, the committee 
denied recounting the balance of the ballots. (Murphy v. Haugen, 53d 
Cong., p. 58, Supplement; Canton v. Siegel, 64th Cong., p. 92, 
Supplement; Brown v. Hicks, 64th Cong., p. 93, Supplement.)
    The committee can only report cases on the evidence furnished by 
the parties. We can neither make the evidence nor improve the quality 
nor supply the deficiency of that furnished. (See Goode v. Epps, 53d 
Cong., Rowell, p. 469.) In this case contestee had a majority of 868 on 
the returns and received the certificate. We quote from the opinion in 
this case the following:

         Most of the returns appear to have been thrown out 
     because the ballots or poll books were not properly sealed, 
     or the returns were irregular, ambiguous, or not delivered by 
     the proper official. The committee went over the evidence in 
     detail and complained that contestant had not in most 
     instances produced the best evidence available.

    In the case under consideration the ballots were the best evidence 
of the votes cast for each candidate for Member of Congress. The 
ballots are not in evidence and are not therefore before the committee. 
No attempt was made by contestant to offer these ballots to be 
canvassed by the committee, but contestant seeks in this case to 
overthrow the official canvass of the votes by the legally constituted 
election boards by calling a witness to go through the ballots and 
report the tally to the commissioner selected by contestant to take 
testimony.
    Where a witness testified that he compared the poll lists, entry 
lists, or lists of persons struck from the registry list of a county, 
and presented a list of names which he said were found on the poll list 
but not on either of the other lists, the committee held that ``these 
statements made by the witness

[[Page 1429]]

are inadmissible. The papers themselves are the best and only evidence 
of what they contain if they are admissible for any purpose. The 
committee must make the comparison and can not take the statements of 
the witness as to the result of his comparison.'' (Finley v. Bisbee, 
45th Cong., Rowell, p. 326.)
    Where votes were proved to have been illegal but the evidence that 
they were cast for contestee was the testimony of persons who had 
compared the numbered ballots with the poll list, the ballots 
themselves not being produced in evidence, the evidence was considered 
insufficient to justify the deduction of the votes from the vote of the 
contestee. (See Gooding v. Wilson, 42d Cong., Rowell, p. 276.)
    The recount in this case should have included all of the ballots in 
all of the precincts in the fifth congressional district. The ballots 
not having been offered in evidence by contestant, your committee 
thinks the evidence in this case is not sufficient to set aside the 
official returns. For the reasons set forth in this report your 
committee recommends the adoption of the following resolutions:

         Resolved, That Jacob Gartenstein was not elected a 
     Representative in the Sixty-seventh Congress from the fifth 
     congressional district of Illinois, and is not entitled to a 
     seat therein.
         Resolved, That Adolph J. Sabath was duly elected a 
     Representative in the Sixty-seventh Congress from the fifth 
     congressional district of Illinois, and is entitled to retain 
     his seat therein.

    Reported privileged resolution (H. Res. 574) agreed to by voice 
vote without debate [64 Cong. Rec. 5469, 67th Cong. 4th Sess., Mar. 3, 
1923; H. Jour. 346].

Sec. 3.8 Parillo v Kunz, 8th Congressional District of Illinois.

    Evidence not taken by contestant within the legal time was held 
inadmissible where delay was not excusable (although the parties had 
stipulated to extensions), rendering contestant without standing to 
institute the contest.
    Evidence.--Assuming admissibility of evidence, contestant failed to 
sustain his allegations where fraudulent marking of ballots was not 
proven and where the partial recount of disputed ballots by an official 
appointed to take testimony was not sufficient to change the election 
result.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 1 submitted by Mr. Frederick 
W. Dallinger, of Massachusetts, on Jan. 15, 1923, follows:

[[Page 1430]]

                            Report No. 1415

                Contested Election Case, Parillo v Kunz

                         statement of the case

    At the election held in the eighth congressional district of the 
State of Illinois on November 2, 1920, according to the official 
returns Stanley H. Kunz, the contestee, who was the Democratic 
candidate, received 15,432 votes; Dan Parillo, the contestant, who was 
the Republican candidate, received 14,627 votes; and Harry C. 
Stockbridge, who was the Socialist candidate, received 1,334 votes. As 
a result of these returns Stanley H. Kunz, the contestee, was declared 
elected by a plurality of 805 votes over his Republican opponent, Dan 
Parillo, and a certificate of election was duly issued to him by the 
secretary of state of Illinois.
    On December 21, 1920, the contestant, in accordance with law, 
served on the contestee a notice of contest in which it was alleged 
that errors and mistakes had been committed in the count of the ballots 
in certain precincts of the sixteenth, seventeenth, and nineteenth 
wards of the city of Chicago, comprising 44 of the 107 precincts 
constituting the eighth congressional district. The contestant claimed 
that a recount of the votes cast in the above precincts would disclose 
that the contestant was duly and legally elected.
    On January 12, 1921, the contestee served on the contestant an 
answer denying all the allegations contained in the contestant's notice 
and alleging that a recount of certain other precincts therein 
mentioned would show a gain in the contestee's plurality.

                         work of the committee

    The testimony in the case was duly printed and the contestant filed 
an abstract of record as required by the rules of the committee and 
also a printed brief and argument. The contestee filed no brief. 
Although the committee gave the contestant and his counsel an 
opportunity to appear before the committee and argue his case, he 
declined to do so, stating that he desired the case to be decided upon 
the printed record and brief.

                            findings of fact

    Most of the facts in this case are not in dispute. The contestee's 
answer was served on the contestant January 12, 1921. The act of 
Congress approved March 2, 1875 (U.S. Stat. L., vol. 18, ch. 119, p. 
338), provides that all testimony in contested-election cases shall be 
taken within 90 days from the date on which the answer of the returned 
Member is served upon the contestant and that the contestant shall take 
his testimony during the first 40 days thereof. In this case, 
therefore, the law required that the taking of all testimony should be 
completed on April 12, 1921. As a matter of fact, however, no testimony 
was taken by either party within the 90 days required by law. On 
February 8, 1921, a stipulation was entered into by the parties that 
the taking of evidence on the part of the contestant should be 
commenced on February 28, 1921. On February 28, 1921, it was again 
stipu

[[Page 1431]]

lated by the parties that the time for taking evidence for the 
contestant might be continued until April 18, 1921, and on that date 
the taking of evidence was commenced before Guy C. Crapple, a notary 
public, in the office of the board of election commissioners in 
Chicago. By agreement of counsel the wards and precincts in dispute 
were then taken up in numerical order and the ballots recounted. On 
October 10, 1921, over seven months after the law required the 
contestant's testimony to be concluded and almost six months after the 
law required that the taking of all testimony should cease, the 
contestant closed his case, and on December 5, 1921, it was agreed that 
the taking of evidence by both parties should close, this latter date 
being almost eight months after the time fixed by Congress had expired.
    The recount showed that Stanley H. Kunz had received 14,733 votes 
and Dan Parillo 14,487 votes--a plurality of 246 votes for Stanley H. 
Kunz, the contestee. At the conclusion of the taking of all the 
evidence, counsel for the contestant moved to strike out of the recount 
the entire vote of 19 precincts in the sixteenth ward and of 7 
precincts in the seventeenth ward on the strength of the testimony of 
Howard A. Rounds, a handwriting expert, who testified that, in his 
opinion, some of the pencil crosses on certain of the ballots in these 
precincts were made by persons other than the voter himself. Your 
committee does not consider that the evidence sustains the contention 
of the contestant and finds that there is no reason why the returns 
from the precincts in question should be rejected.

                           conclusions of law

    Section 107 of the Revised Statutes of the United States as amended 
by the act of March 2, 1875, explicitly provides that all testimony in 
contested-election cases shall be taken within 90 days from the date on 
which the answer of the contestee is served upon the contestant. It has 
been the invariable practice of the House of Representatives to require 
the taking of the testimony within the time required by law, except 
where the time has been extended for good and sufficient reasons. In 
the Missouri case of Reynolds v. Butler (Moore's Digest, p. 28) in the 
Fifty-eighth Congress the unanimous report of the Committee on 
Elections No. 2, after reciting facts showing a lack of diligence on 
the part of the contestant and stating that he had not commenced taking 
evidence within 40 days from the time of serving notice on the 
contestee, thus states the law:

         It is quite true that the statute providing and limiting 
     the time for the taking of testimony is not binding upon this 
     House, which under the Constitution is the only and absolute 
     judge of the qualifications and elections of its Members. 
     But, as has frequently been held, it furnishes a wise and 
     wholesome rule of action, and ought not to be departed from 
     except for sufficient cause shown or where the interests of 
     justice clearly require. It would seem that contestant might 
     have commenced and concluded his testimony in this case 
     within 40 days; certainly he might have commenced. No reason 
     whatever appears upon the record why he could not or did not; 
     but upon the argument before your com

[[Page 1432]]

     mittee it was stated that counsel for the present contestant 
     were also counsel for Wagoner in his contest, and that some 
     or all of them were engaged upon that case most of the time. 
     There must, however, have been other counsel in St. Louis 
     quite capable of taking such testimony as was taken in this 
     case.

    In the Arkansas case of Bradley v. Slemons in the Forty-sixth 
Congress (Rowell's Digest, p. 339) although the contestee offered no 
objection, the Committee on Elections excluded all evidence not taken 
within the time prescribed by the statute.
    In the present case the contestant not only does not show due 
diligence but the record clearly shows that without any reason or 
excuse whatever he undertook by a series of stipulations to set aside 
and ignore the clear and explicit provision of the statute. No 
testimony whatever was taken by the contestant until April 18, 1921, 
six months after the entire 90 days allowed by the act of Congress for 
the taking of all the testimony in the case had expired. In this case 
there is no excuse whatever for the contestant not commencing to take 
his testimony within 40 days from the service of the contestee's answer 
as required by law. If he had started to take his testimony immediately 
after serving his answer, and for good and sufficient reasons had been 
unable to complete his testimony before the expiration of the 40 days 
allowed him by law, and had then asked the House of Representatives for 
an extension of time he undoubtedly would have received an extension. 
In this case, however, as a matter of fact the record discloses that he 
had no reason whatever for asking any extension of time and that all of 
his testimony might have been taken within the 40 days and that all the 
testimony on both sides of the case might have been taken within the 90 
days required by law. Your committee, therefore, finds that in this 
case the contestant deliberately ignored the plain mandate of the law 
without any reason or excuse, that he has offered no evidence which can 
legally be considered by your committee, and that he has no standing as 
a contestant before the House of Representatives.

                         summary and conclusion

    Your committee, therefore, finds that the contestant, not having 
complied with the provisions of the law, governing contested-election 
cases, has no case which can be legally considered by your committee or 
by the House of Representatives. Moreover, even if he had fully 
complied with the law, your committee finds that as a matter of fact he 
has failed to prove the allegations contained in his notice of contest; 
that there is no evidence warranting the rejection of any of the 
precincts of the district; and that the recount of votes, which he 
alleged would show that he had been elected, according to his own 
figures, still shows that the contestee was actually elected by a 
plurality of 246 votes.
    For the above reasons your committee recommends the adoption of the 
following resolutions:

[[Page 1433]]

         Resolved, That Dan Parillo was not elected a Member of 
     the House of Representatives in the Sixty-seventh Congress 
     from the eighth congressional district of the State of 
     Illinois, and is not entitled to a seat herein.
         Resolved, That Stanley H. Kunz was duly elected a Member 
     of the House of Representatives in the Sixty-seventh Congress 
     from the eighth congressional district of the State of 
     Illinois, and is entitled to retain his seat herein.

    Reported privileged resolution (H. Res. 575) was agreed to by voice 
vote without debate [64 Cong. Rec. 5472, 67th Cong. 4th Sess., Mar. 3, 
1923; H. Jour. 346].

Sec. 3.9 Golombiewski v Rainey, 4th Congressional District of Illinois.

    Pleadings.--Failure of contestant to comply with an elections 
committee rule requiring filing of an abstract citing portions of 
evidence being relied upon, and contestant's refusal to respond to 
offers for committee hearings, were considered grounds for dismissal of 
the contest.
    Returns were not rejected where contestant offered insufficient 
stipulated evidence of fraudulent marking of ballots.
    Committee on elections report, incorporating by reference findings 
of other elections committees in contests considered concurrently, was 
for contestee, who retained his seat.
    Report of Committee on Elections No. 2 submitted by Mr. Robert 
Luce, of Massachusetts, on Feb. 1, 1923, follows:

                            Report No. 1500

             Contested Election Case, Golombiewski v Rainey

    The Committee on Elections No. 2, to which was referred the 
contested election case of John Golombiewski v. John W. Rainey, from 
the fourth congressional district of the State of Illinois, reports as 
follows:
    The result of the election in this district, November 2, 1920, was 
officially announced to be:

John W. Rainey.................................................   23,230
John Golombiewski..............................................   21,546
Charles Beranek................................................    2,753
------------------------------------------------------------------------

    Golombiewski took steps to contest the election and to that end 
secured a recount in 90 out of 159 precincts of the district. By the 
recount Rainey lost 1,008 votes, and Golombiewski gained 321, leaving 
Rainey with a plurality of 676, irrespective of 179 ballots laid aside 
as challenged.
    Thereupon Golombiewski, through counsel, submitted to the House 
printed brief and argument, the record of testimony, and an abstract 
thereof; and Rainey, through counsel, submitted brief and argument. The 
contestant rest

[[Page 1434]]

ed his case upon the allegation that the fraudulent marking of ballots 
after they had been cast in 16 specified precincts indicated a degree 
of corruption warranting the exclusion of all the ballots cast in those 
precincts. His abstract of testimony failed to comply with the rules 
adopted by the committees on elections in that it did not by definite 
citation aid the committee in learning just what testimony was relied 
upon, unless we are to suppose that a tabulation of figures accepted by 
both parties could be in and of itself sufficient to prove fraud and 
mistakes by showing that 179 ballots were challenged. By this 
tabulation it appears that the challenged ballots were confined to 16 
precincts. In each of 12 of these less than 10 ballots were challenged, 
and in the other 4 the percentage of challenged ballots was not large 
enough in and of itself to indicate that degree of gross corruption 
which has hitherto been held by the House to be necessary for the total 
exclusion of a poll.
    This is one of three cases from the city of Chicago which were 
referred respectively to your three committees on elections. The issues 
involved and the circumstances are much the same in all three cases. 
The report of the Committee on Elections No. 3 in the case of 
Gartenstein v. Sabath, submitted December 20 last, and the report of 
the Committee on Elections No. 1 in the case of Parillo v. Kunz, 
submitted January 15 last, contain discussion of the effect of 
violating statutory requirements, of incomplete recounts, and of the 
evidence that should be offered under conditions such as here 
prevailed, together with analysis of testimony and citation of 
precedents, all of which apply as well to the present case, and to 
rehearse them here would be needless repetition. It should, however, be 
added that in this case counsel for the contestant has failed to 
proceed beyond the filing of the required documents, repeated inquiries 
from your committee as to whether he desired a hearing having been 
wholly ignored.
    In view of all the circumstances your committee recommends to the 
House the adoption of the following resolution:

         Resolved, That John Golombiewski was not elected a 
     Representative from the fourth congressional district of the 
     State of Illinois and is not entitled to a seat herein.
         Resolved, That John W. Rainey was duly elected a 
     Representative from the fourth congressional district of the 
     State of Illinois and is entitled to retain a seat herein.

    Reported privileged resolution (H. Res. 576) was agreed to without 
debate by voice vote [64 Cong. Rec. 5473, 67th Cong. 4th Sess., Mar. 3, 
1923; H. Jour. 346].


                 Sec. 4. Sixty-eighth Congress, 1923-25

Sec. 4.1 Eligibility of Edward E. Miller, 22d Congressional District of 
     Illinois.

    Federal Corrupt Practices Act.--A privileged resolution, creating a 
select committee to investigate the question of the right of a Member

[[Page 1435]]

to his seat based on alleged violation of the limitations on 
expenditures by candidates, was referred to an elections committee, 
reported adversely and laid on the table by the House.
    Report for seated Member, who retained his seat.
    Report of Committee on Elections No. 3 submitted by Mr. Richard N. 
Elliott, of Indiana, on Jan. 18, 1924, follows:

                             Report No. 56

                             Adverse Report

                        [To accompany H. Res. 2]

    The Committee on Elections No. 3, having had under consideration 
the following resolution--

     [House Resolution No. 2, Sixty-eighth Congress, first session]

         Whereas it is charged that Edward E. Miller, a 
     Representative elect from the State of Illinois, is probably 
     ineligible to a seat in the House of Representatives;
         Whereas such charge is made through a Member of the House 
     and on his responsibility as a Member;
         Whereas it is charged that said Miller has grossly 
     misused two trust funds committed to his charge by the State 
     of Illinois while he was treasurer of the State of Illinois 
     in promoting his candidacy for election to the Sixty-eighth 
     Congress; and
         Whereas it is charged that said fund so used also greatly 
     exceeds the amount he is permitted by law to expend for said 
     purpose;
         1. Resolved, That the question of the right of said 
     Miller to a seat as a Representative of the State of Illinois 
     in the Sixty-eighth Congress in the House be referred to a 
     committee of seven Members of the House, to be appointed by 
     the Speaker, and said committee shall have the power to send 
     for persons and papers and examine witnesses on oath as to 
     the subject matter of the resolution.

submits the following report:

    That a thorough hearing and investigation was made by the 
committee, and after hearing the evidence presented it finds that no 
good reason has been shown to it which would justify the passage of the 
resolution and the appointment of a special committee of seven Members 
of the House of Representatives to investigate the charges contained in 
said resolution.
    And it unanimously recommends to the House of Representatives that 
said House Resolution No. 2 be laid on the table.

[[Page 1436]]

    Privileged resolution (H. Res. 2) reported adversely and laid on 
table without debate pursuant to clause 2, Rule XIII [65 Cong. Rec. 
1154, 68th Cong. 1st Sess., Jan. 18, 1924; H. Jour. 178].

Sec. 4.2 Chandler v Bloom, 19th Congressional District of New York.

    Ballots disputed at a complete recount conducted by the parties 
were examined and recounted by an elections committee upon adoption by 
the House of a resolution reported from that committee authorizing 
subpena of ballots and election officials.
    Ballots were rejected where cast by voters not registered in new 
precincts as required by state law, but ballots cast by voters not 
signing poll books were not examined as a proportional rejection would 
not affect the election result.
    On Jan. 30, 1924, Mr. Richard N. Elliott, of Indiana, from the 
Committee on Elections No. 3 reported (H. Rept. No. 131) and called up 
as privileged the following resolution (H. Res. 166):

    Resolved, That John H. Voorhis, Charles Heydt, James Kane, and 
Jacob Livingston, constituting the board of elections of the city of 
New York, State of New York, their deputies or representatives, be, and 
they are hereby, ordered to be and appear by one of the members, the 
deputy, or representative, before Elections Committee No. 3 of the 
House of Representatives forthwith, then and there to testify before 
said committee or a subcommittee thereof in the contested-election case 
of Walter M. Chandler, contestant, v. Sol Bloom, contestee, now pending 
before said committee for investigation and report; and that said board 
of elections bring with them all of the disputed ballots, marked as 
exhibits, cast in every election district at the special congressional 
election held in the nineteenth congressional district of the State of 
New York on January 30, 1923. That said ballots be brought in the same 
envelopes or wrappings in which the same now are; that said ballots be 
examined and counted by and under the authority of said Committee on 
Elections in said case; and to that end that proper subpoena be issued 
to the Sergeant at Arms of this House commanding him to summon said 
board of elections, a member thereof, or its deputy, or representative, 
to appear with such ballots as a witness in said ease; and that the 
expenses of said witness or witnesses and all other expenses under this 
resolution shall be paid out of the contingent fund of the House; and 
that said committee be, and hereby is, empowered to send for all other 
persons and papers as it may find necessary for the proper 
determination of said controversy; and also be, and it is, empowered to 
select a subcommittee to take the evidence and count said ballots or 
votes and report same to Committee on Elections No. 3, under such 
regulations as shall be prescribed for that purpose; and that the 
aforesaid expenses be paid on the requisition of the chairman of said 
committee after the auditing and allowance thereof by said Elections 
Committee No. 3.

[[Page 1437]]

    House Resolution 166 was agreed to by voice vote without debate [H. 
Jour. 211, 68th Cong. 1st Sess., Jan. 30, 1924].
    Report of Committee on Elections No. 3 submitted by Mr. Guinn 
Williams, of Texas, on Feb. 23, 1924, follows:

                             Report No. 224

               Contested Election Case, Chandler v Bloom

                         statement of the case

    At the special election held in the nineteenth congressional 
district of the State of New York on January 30, 1923, according to the 
official returns, Sol Bloom, the contestee, who was the Democratic 
candidate, received 17,909 votes and Walter M. Chandler, the 
contestant, who was the Republican candidate, received 17,718 votes. As 
a result of these returns Sol Bloom, the contestee, was declared 
elected by a plurality of 191 votes over his Republican opponent, 
Walter M. Chandler, and a certificate of election was duly issued to 
him by the secretary of state of New York. . . .

               recount of disputed and protested ballots

    The contestant and contestee had conducted an official recount of 
the ballots cast in said election in which it was determined that the 
contestee had received 17,802 apparently good ballots and the 
contestant had received 17,676 apparently good ballots, leaving an 
apparent majority for Bloom of 126. Several of the ballots not counted 
in the official recount were claimed to be good, and the committee 
under direction of the House of Representatives had all of the disputed 
and void ballots cast in said election brought before it and canvassed 
and found that 83 of said rejected ballots were good and 55 of them 
should have been counted for the contestee and that 28 of them should 
have been counted for the contestant, which would give the contestee 
17,857 and the contestant 17,704, leaving the contestee a majority of 
153.

           illegal voting by persons not properly registered

    Under section 150 of the election laws of New York no one is 
allowed to vote who is not a citizen and who has not been registered 
under the registration law of said State, and if he removes from the 
election district in which he is registered to another election 
district before the day of election, at which he offers to vote, he 
loses his right to vote, unless he appears before the board of 
elections of New York City, if he is a voter in New York City, and 
applies for a transfer or special registration to permit him to vote. 
Fifteen voters who voted at the special election had removed from the 
district in which they were registered and in which they had voted at 
the preceding general election of November, 1922. These voters, the 
record shows, had not secured a transfer or special registration from 
the board of elections of New York that would permit them to vote 
legally at the special election January 30, 1923.

[[Page 1438]]

    There is evidence in the record to the effect that at least 11 of 
these voters voted for contestee, that 3 of them voted for contestant, 
and that 1 of them stated in a sworn affidavit that he voted for 
contestee, and in his deposition which was taken in this case he 
testified that he voted for contestant.

  alleged illegal votes because voters failed to sign their names in 
  official registry of voters, twenty-eighth election district of the 
  eleventh assembly district, which registry was used at the special 
          election for entering signatures of those who voted

    Under the New York election law, 1922, sections 202 and 207, each 
voter is required to place his signature in the signature column of the 
official registry of voters before he shall be allowed to vote. It is 
alleged that James Bennett, who voted ballot No. 1; Frank W. Scott, who 
voted ballot No. 2; Israel Rivkin, who voted ballot No. 3; William 
Murphy, who voted ballot No. 4; Henry Seeman, who voted ballot No. 5; 
Patrick McMahon, who voted ballot No. 6; each failed to sign his name 
in said register and that by reason thereof their votes were illegal. 
The contestant maintains that their votes should be rejected. There is 
no evidence in the record, however, to show how any of these persons 
voted. It is contended by the contestant that inasmuch as five of these 
voters were enrolled as Democrats, that in the absence of evidence to 
the contrary, party affiliation of an illegal voter may be considered 
in determining from whom such votes should be deducted or for whom they 
should be counted. . . .

                         summary and conclusion

    The committee therefore finds that of the 15 illegal votes cast by 
the voters who had lost their right to vote by moving to another 
precinct, 11 of them were cast for Bloom and should be deducted from 
his total vote, and that 3 were cast for Chandler and should be 
deducted from his total vote. The committee is unable to determine from 
the evidence for whom the other vote was cast and finds that it should 
be deducted pro rata from the votes of the contestant and contestee.
    That of the 6 votes cast by the voters who failed to sign their 
names in the official registry in the twenty-ninth election district of 
the eleventh assembly district, the evidence does not disclose for whom 
they were voted, and if they were rejected it would have no bearing 
upon this case on account of the fact that they should in that event be 
subtracted pro rata from the votes of the contestant and contestee; for 
this reason the committee does not feel that it is necessary to decide 
the question of the legality of said votes.

    Returns were not rejected by the House in precincts where election 
officials, though not properly qualified or unsworn, acted under color 
of authority.
    Returns were not rejected by the House where contestant did not 
sustain allegations of fraud or intimidation in the casting, counting, 
or custody of ballots.

[[Page 1439]]

    The House overruled the majority report of an elections committee 
which had summarily rejected entire precinct returns for violations of 
mandatory state election laws and for fraud by election officials 
alleged by contestant.
    Majority report for contestant, who was not seated.
    Minority views for contestee, who retained his seat.

    twenty-third election district of the eleventh assembly district

    The contestant contends that the poll of the twenty-third election 
district of the eleventh assembly district should be rejected for the 
following reasons:
    (a) The board of inspectors of said election district was illegally 
constituted and organized, and was, therefore, without authority to 
act.
    (b) In this election district 53 ballots were stolen from the pile 
of unused or unvoted ballots, and a large majority of them were 
undoubtedly voted for the contestee, Sol Bloom, by what is called 
shifting or substitution of ballots.
    (c) In this election district the record discloses that illegal 
voting by repeaters and other illegal voters took place on a large 
scale.
    (d) Electioneering within the polling place and within the 
prohibited limit of 100 feet by means of banners and pictures of Bloom, 
the contestee, and by personal solicitation of his workers, including 
the Democratic election inspectors themselves, was carried on in this 
election district, in violation of the election laws of New York.
    (e) Unsworn persons, other than election officers, were permitted 
to handle the official ballots both during the day and at the count and 
canvass of the ballots at night, in violation of the election laws of 
New York.
    (f) There was intimidation of Republican workers, who were 
compelled to leave the election district when most needed in the 
afternoon of election day by organized bands of ruffians, evidently 
friends of the contestee herein, who threatened the said Republican 
workers with fractured skulls and with death if they failed to leave 
the district at once.
    (g) Drunkenness and boisterous conduct characterized the actions of 
the Democratic chairman of the board of inspectors, David Elbern, and 
the Democratic captain, George Rosenberg, to such an extent that the 
freedom of the election in that district was destroyed, that 
intimidation resulted, that scandal disgraced the entire proceedings, 
and that the election results and returns were rendered unreliable 
thereby.
    (h) The method of counting the votes and the preparation of the 
tally sheets after the close of the polls in this election district 
were in flagrant violation of the election laws of New York providing 
for a true count and an accurate return of votes cast.
    (i) The election returns from this particular election district, as 
filed with the board of elections of New York City, and with the county 
clerk of New York County, were evidently deliberately false returns, 
for, although the election inspectors knew at noon of election day that 
53 ballots had been stolen from the pile of unvoted ballots and had not 
been recovered, they failed

[[Page 1440]]

to report them as missing ballots in their election returns, but, on 
the contrary, reported the full number of unvoted ballots.

  thirty-first election district of the seventeenth assembly district

    The contestant contends that the poll of the thirty-first election 
district of the seventeenth assembly district should be rejected for 
the following reasons:
    (a) Because the board of inspectors of said election district was 
illegally constituted and organized, and was therefore without 
authority to act.
    (b) Because there was electioneering within the polling place and 
within the prohibited limit of 100 feet in said election district by 
means of banners and pictures of Bloom, the contestee, and by personal 
solicitation of his workers, in violation of the election laws of New 
York.
    (c) Because the secrecy of the ballot was openly violated in said 
election district by the Democratic election officers, in violation of 
the election laws of New York.
    (d) Because the Democratic inspectors of election deliberately 
tore, erased, and mutilated many ballots, thus violating the secrecy of 
the ballot and furnishing proof of a criminal conspiracy to corrupt 
voters, in violation of both the civil and criminal election laws of 
New York.
    (e) Because such methods of intimidation were employed by the 
Democratic election officers and workers in said election district that 
the Republican officers and workers were prevented from properly 
performing their official duties, thus destroying freedom of official 
action and rendering unreliable the election returns from said 
district.
    (f) Because the canvass of the ballots and the preparation of the 
tally sheets were in flagrant violation of the election laws of New 
York.

    thirtieth election district of the seventeenth assembly district

    The contestant contends that the poll of the thirtieth election 
district of the seventeenth assembly district should be rejected for 
the following reasons:
    (a) Because 34 ballots were stolen from the pile of unused or 
unvoted ballots and were voted for Sol Bloom, contestee, by what is 
known as shifting or substitution of ballots.
    (b) Because there was a deliberately false and fraudulent return of 
votes by the board of inspectors of this election district.

  twenty-ninth election district of the seventeenth assembly district

    The contestant contends that the poll of the twenty-ninth election 
district of the seventeenth assembly district should be rejected for 
the following reasons:
    (a) Because the board of inspectors of said districts was illegally 
constituted and organized and was, therefore, without authority to act.
    (b) Because there was a violation in this district of the secrecy 
of the ballot as well as open corruption of voters with whisky and with 
money.

[[Page 1441]]

    (c) Because there was illegal voting in this district by repeating, 
in which Democratic election officers and workers personally 
participated.

  twenty-fifth election district of the seventeenth assembly district

    The contestant contends that the poll of the twenty-fifth election 
district of the seventeenth assembly district should be rejected for 
the following reasons:
    (a) Because the board of inspectors was illegally constituted and 
organized and was therefore without authority to act.
    (b) Because the record discloses the fact that there was a well-
formed conspiracy in this district to carry the election for Bloom, the 
contestee, by fraud and intimidation. . . .
    After a careful and exhaustive consideration of the evidence and 
hearings in this case the committee finds that all of said election 
districts are tainted with fraud. That in the twenty-third election 
district of the eleventh assembly district and in the thirtieth and 
thirty-first election districts of the seventeenth assembly district 
there was such an utter, complete, and reckless disregard of the 
provisions of the election laws of the State of New York involving the 
essentials of a valid election, and the returns of the election boards 
therein are so badly tainted with fraud that the truth is not deducible 
therefrom, and that it can be fairly said that there was no legal 
election held in the said election districts.
    Consequently in accordance with the universally accepted principles 
of the law governing contested elections and in conformity with a long 
line of congressional precedents, from the Missouri case of Easton v. 
Scott in the Fourteenth Congress (Rowell's Dig. 68) down to and 
including the cases of Gill v. Dyer in the Sixty-third Congress, 
Wickersham v. Sulzer in the Sixty-fifth Congress, Tague v. Fitzgerald 
in the Sixty-sixth Congress, Farr v. McLane in the Sixty-sixth 
Congress, and Paul v. Harrison in the Sixty-seventh Congress, the 
committee is of the opinion that the entire returns of the twenty-third 
election district of the eleventh assembly district and the thirtieth 
and thirty-first districts of the seventeenth assembly district should 
be rejected.
    Rejecting the returns from the above three precincts and deducting 
from the total votes of the contestant the three votes illegally cast 
for him and from the total votes of the contestee the 11 votes 
illegally cast for him in the remaining precincts of the district 
aforesaid, the result of the congressional election held in the 
nineteenth congressional district of the State of New York on January 
30, 1923, would be as follows:
    Walter M. Chandler, Republican, received 17,504 votes, and Sol 
Bloom, Democrat, received 17,280 votes, and the contestant is elected 
by a majority of 224 votes.
    The committee therefore respectfully recommends to the House of 
Representatives the adoption of the following resolutions (H. Res. 
254):

         Resolved, That Sol Bloom was not elected a Member of the 
     House of Representatives from the nineteenth congressional 
     district of the State of New York in this Congress and is not 
     entitled to retain a seat herein.

[[Page 1442]]

         Resolved, That Walter M. Chandler was duly elected a 
     Member of the House of Representatives from the nineteenth 
     congressional district of the State of New York in this 
     Congress and is entitled to a seat herein.

    The following minority views were submitted by Mr Guinn Williams, 
of Texas; Mr. John H. Kerr, of North Carolina; and Mr. Heartsill Ragon, 
of Arkansas:

                         Report No. 224, Part 2

    . . . At the request of the contestant, a recount of the votes cast 
at said election was had, pursuant to law. At this recount the 
contestee's majority was reduced to 126, counting those ballots which 
were conceded by each party to be undisputedly good, a goodly number 
being contested by both parties and put aside for the House Election 
Committee to pass upon, and upon investigation of these disputed 
ballots the House Election Committee determined that Sol Bloom was 
entitled to a net gain of 27 more, thus making Bloom's plurality, after 
two counts and an inspection by the committee, 153.
    . . . This matter resolves itself into the question as to whether 
the contestant has offered evidence sufficient to establish the fact 
that he was deprived of his election upon the face of the returns by 
reason of frauds perpetrated in the twenty-third election precinct of 
the eleventh assembly district, and in the thirtieth and thirty-first 
election precincts of the seventeenth assembly district.
    It is a well-accepted rule of law that fraud ``which is criminal in 
its essence'' and involves moral turpitude at least is never presumed 
but must be proven affirmatively; conversely, a party is not bound to 
disprove fraud either directly or constructively; it must be proven by 
the party alleging it. The presumption, if any, is against the 
existence of fraud and in favor of innocence, honesty, and fair 
dealing.

                                argument

    The contestant contends that the twenty-third election district of 
the eleventh assembly district should be rejected for the following 
reasons, viz:

         First. That the board of inspectors of said district were 
     not properly organized and therefore had no authority to act.

    What are the facts? In the precinct five inspectors of election 
designated under the statute by their political parties held this 
election--Webster, a Republican, who was in every way qualified, this 
is admitted; Grohol, a Republican, who was designated by his party to 
act, although he was not an elector or voter in New York City; and Levy 
and Elbern, Democrats, who had acted as inspectors in this polling 
place on every registration day but who were sworn for this day perhaps 
not strictly in accordance with the statutes, and Mrs. Josephine Born, 
who took Levy's place when he was called away about noon.

[[Page 1443]]

    This House of Representatives is asked to reject the vote of this 
precinct, for the reason that Grohol, who had been designated by the 
Republican leaders, pursuant to law, to act as inspector, was not a 
resident, of the city of New York. This fact seems to be true, but 
wouldn't it be a monstrous proposition that a man recommended for 
appointment by his Republican organization and actually accepted and 
sworn in by a bipartisan board of elections, and who thereafter served 
through the election honestly and faithfully, should be used by his 
party as the instrument of unseating a successful opponent who was in 
no way responsible for his recommendation and appointment?
    The two Democratic inspectors, Levy and Elbern, may have failed to 
take the oath in the manner required by the statute, but they had been 
acting throughout the registration, they were well known in the 
district, and they were de facto officials if technically not de jure 
ones; their acts as far as the public is concerned are as valid as the 
acts of an officer de jure. Can it be said that the contestant has been 
wronged or lost one vote by this ``illegally constituted and 
organized'' board of inspectors, as contended by him?
    Mr. Webster, who was admittedly qualified, had the authority to 
have sworn in each of these officers and thus qualified them fully, or 
he could have constituted an entirely new board, under the New York 
statute, if he had wished to have done so. Levy and Elbern and Mrs. 
Born, who were sworn in by one of them, were de facto officials under 
all the authorities of the State and of Congress.

         An election held by one regularly appointed inspector and 
     one officer de facto acting under color of authority is 
     valid. (Smith v. Elliott, 44th Cong., Mobley, 718-722.)

    In People v. Cook (8 N.Y. 87) the Court of Appeals of the State of 
New York said:

         The first objection I shall consider relates to the 
     inspectors of election. It appears by the record that the 
     inspectors who opened the polls in the morning were not 
     regularly sworn and that they were appointed by the 
     supervisors, town clerk, and a single justice ``inspectors of 
     election for the second district of the town of Williamsburg 
     to act until others are appointed.'' It was dated November 4, 
     1851. It appears that there were inspectors elected for that 
     district, but that they were not present at the opening of 
     the polls. There can be no doubt that this appointment was a 
     colorable authority for these inspectors, and that their acts 
     in that capacity were valid, so far as third persons were 
     concerned; their omission to take the oath in due form did 
     not invalidate their acts. . . . An officer de facto is one 
     who comes into office by color of a legal appointment or 
     election; his acts in that capacity are as valid, so far as 
     the public is concerned, as the acts of an officer de jure; 
     his title can not be inquired into collaterally. . . .

[[Page 1444]]

         Had the sheriff or constable arrested a disorderly person 
     under authority of either of the boards of inspectors, who 
     were merely such de facto, he would have been protected. The 
     person of the voter is as securely guarded under authority of 
     inspectors de facto as of inspectors de jure; a challenged 
     voter swearing falsely before a de facto board of inspectors 
     is as much liable to punishment under the statute as if the 
     oath had been administered by inspectors de jure.

    In Barnes v. Adams (41st Cong., 2 Bart. 765) it was said:

         There is, however, a principle of law which your 
     committee believes to be well settled by judicial decisions 
     and most salutary in its operations, which is conclusive of 
     this point as well as of several other points in this case. 
     It is this: That in order to give validity to the official 
     acts of an officer of election, so far as they affect third 
     parties or the public, and in the absence of fraud, it is 
     only necessary that such officer shall have color of 
     authority. It is sufficient if he be an officer de facto and 
     not a mere usurper.

    In Eggleston v. Strader (41st Cong., 2 Bart. 897-904) it was said:

         It takes but little to constitute an officer de facto as 
     affects the right of the public. The exercise of apparent 
     authority under color of right, thus inviting public trust 
     and negativing the idea of usurpation, is sufficient.

    And also this:

         It is well settled in law that so far as the public is 
     concerned the acts of one who claims to be a public officer, 
     judicial or ministerial, under a show of title or color of 
     right will be sustained. Such a person is an officer in fact 
     if not in law, and innocent parties or the public will be 
     protected in so considering or trusting him.

    In Birch v. Van Horn (40th Cong., 2 Bart. 206), where a supervisor 
of registration was not qualified to hold the office, it was said:

         The committee are of the opinion that his acts as such 
     supervisor can not be regarded as void, so as to affect the 
     legality of the votes given at the election; that, having 
     come into the office under all the forms and requirements of 
     the law, he is at least a good officer de facto whose acts 
     are not to be questioned in a collateral proceeding but only 
     by some proceeding bringing his title to the office directly 
     in question.

    The case of Sheafe v. Tillman, cited by the contestant, does not 
apply. In that case the committee held that the coroner was not even an 
officer de facto, for he did not hold his office under color of legal 
authority. He was a mere usurper and all his acts were void. This is 
clearly not the fact in the case of Grohol, who, although not 
qualified, was duly appointed and fully

[[Page 1445]]

and properly performed his duties, nor in the cases of Levy and Elbern, 
who were qualified but not properly sworn.

         (Second.) That 53 ballots were stolen from the pile of 
     unused or unvoted ballots and undoubtedly voted for the 
     contestee, Sol Bloom, by what is called shifting or 
     substitution of ballots.

    The 53 ballots which appear to have been missing from the bottom of 
the pile, 17 of which were found by some one in a barber's chair in the 
back part of the polling place, can not be chargeable to the contestee 
or to the acts of his friends; there is absolutely no proof that one of 
them was deposited in the ballot box; there is absolutely no proof that 
either of them were taken out of the pile for a fraudulent purpose; 
each and every one of the inspectors swear that they knew nothing of 
the removal; the evidence discloses that Grohol, the Republican, 
``handled the ballots practically all day.'' It would have been utterly 
impossible for them to have been removed and shifted or put into the 
ballot box in the presence of the four election inspectors, the 
watchers, the challengers, the captains, and police, several of whom 
were there all the while. There can be no sanctity attached to these 
unused ballots. The overpowering fact is that there were 275 voters who 
registered their names and voted in this box and there were 275 stubs 
detached from their ballots and deposited in the stub box and there 
were 275 votes counted out of this box. To contend that some of those 
removed unvoted ballots were fraudulently cast in this precinct is 
based upon not a scintilla of fact or evidence. The fertile mind of the 
contestant, who has established no fact of fraud in this matter by any 
well-accepted rule of law or common sense, has a suspicion that some 
one was attempting to wrong and was wronging him. We respectfully 
submit that his case is founded upon circumstances which do not rise 
even to the dignity of a well-founded suspicion; and yet this House of 
Representatives, constituted by a large number of lawyers who know the 
rules and equities of their profession, are called upon to do an act so 
manifestly unjust that to even contemplate it should arouse the spirit 
of any just and fair man. It would be just as fair for the contestee to 
suspicion that Grohol was sent into this Democratic precinct by the 
friends of the contestant and not qualified as contended by contestant, 
for the purpose of creating this irregularity or the perpetration of a 
fraud, and then he would be prepared for this attack upon this 
precinct.
    The vote of this district as analyzed from the enrollment and as 
compared with the adjoining district, shows that Mr. Bloom received 
only 60 per cent of the enrolled Democratic vote, whereas Mr. Chandler 
received 90 per cent of the enrolled Republican vote. It shows that 
Bloom received only 115 plurality in this district while he received a 
plurality of 130 and 132 in the two adjoining districts of similar 
character. Bloom's majority was considerably less in this district than 
Mr. Marx received at the November election before. It was considerably 
less than the majority recorded for the Democratic candidate for State 
senator, assemblyman, and alderman in the general election of 1922 and 
1923; it shows that the vote east and counted at the special election 
was absolutely normal; it negatives the idea that any of these unvoted 
ballots went into the box.

[[Page 1446]]

    Romaine v. Meyer (55th Cong., Rept. 1521) is determinative of this 
point.

         In the absence of evidence that any official ballot 
     fraudulently or otherwise obtained was voted, it can not be 
     held that the existence of such outstanding ballots in any 
     way affected the result of the election.
         Unless the frauds and irregularities charged are proven, 
     and unless it is further shown that enough votes were 
     affected so as to change the result, a poll can not be 
     rejected. (Evans v. Turner, 66th Cong.; Wilson v. Lassiter, 
     57th Cong.; Duffy v. Mason, 46th Cong.)

    We submit that there is no proof whatsoever that a fraud was 
committed, that it tainted the box, or that it affected enough votes to 
change the result.

         (Third.) That there were cast and counted illegal voters 
     on a large scale.

    Upon investigation of the evidence the House will find that this 
voting of ``illegal voters on a large scale'' consists in four people 
voting under the name of Feldman--a Mr. Feldman and his three sons. 
There is not the slightest proof that Bloom's friends had anything to 
do with procuring these illegal votes, assuming that they were illegal, 
and there is not the slightest proof as to how or for whom these votes 
were cast. If they are found to be illegal, the box can be easily 
purged of them by deducting them from the votes of the candidates 
proportionately. (Wickersham v. Grigsby, 66th Cong.)

         (Fourth.) That there was electioneering within the 
     prohibited space by Democratic election officials, and that 
     there was a sign with Bloom's picture on it at or near the 
     voting place.

    The evidence is not sufficient to warrant the finding that there 
was electioneering on the part of the election officials; certainly no 
complaint was made either by the officer present or by the board of 
election, which was in session all day to hear complaints and correct 
all errors and settle controversies. The great dereliction seems to be 
in having a likeness of the contestee on a movable sign near the 
polling place. The minority is inclined to think it was there. The 
Republican leader, Mr. Levis, in the district called the attention of 
some official, and with his aid the banner and the pictures were 
removed. It may have been a violation of the law to have exhibited 
these pictures so near the polling place, and the officials who allowed 
such may have been amenable to prosecution, but certainly this is no 
grounds upon which you should disfranchise 275 bona fide electors. (See 
Wigginton v. Pacheco, 45th Cong.)

         (Fifth.) That unsworn persons handled the ballots.

    The evidence discloses that Mr. Grohol folded and handled the 
ballots most of the day; when the count was begun the watchers, both 
Republican and Democrat, would look at disputed ballots; they had a 
right to do so. Grohol testified that there was no misconduct of any 
kind when the ballots

[[Page 1447]]

were being counted; and Mr. Coyne testified that he saw every ballot 
taken out of the box by one of the inspectors, in full view of every 
other inspector, and counted and tallied, and ``that the account and 
tally were correct in every way.'' Coyne was the officer who was 
assigned to this precinct to keep order and see that the election was 
conducted properly. Suppose, for argument, that when a ballot was being 
discussed some one took it and looked at it, would this fact invalidate 
a poll and be any just reason to disfranchise the electors of this 
precinct? We submit that this is too trivial to be considered by this 
House, and yet the contestant insists that this is a serious earmark of 
fraud. (See Hurd v. Romeis, 49th Cong. Carney v. Smith, 63d Cong.; 
Roberts v. Calvert, 98 N.C. 580).

         (Sixth.) That certain Republican workers were intimidated 
     and run away.

    There is no evidence whatever of any intimidation of an inspector 
or a voter. Grohol himself says that he was not intimidated, and this 
serious offense charged to the contestee consisted in the running away 
of four Italian ruffians who came to the precinct from some other 
section of New York City by some men who were not identified as the 
friends of Bloom. They were doubtless police officers, but certainly 
this could not be chargeable to Bloom; he had no control over them. Not 
a voter was intimidated, and we respectfully submit that the 
intimidation of a voter is the only matter Congress will take 
cognizance of.

         (Seventh.) That the Democratic inspector and captain was 
     under the influence of liquor to the extent that the freedom 
     of election was destroyed and intimidation resulted.

    The Republican inspector upon whose evidence the contestant relied 
upon to make out his ease entirely in respect to fraud in the twenty-
third election precinct in the eleventh assembly district--we refer to 
Mr. Grohol--testified that ``there was much social disorder'' and that 
the Democratic captain said ``he could lick anybody in the place, and 
appeared to be under the influence of spirits,'' but the witness 
further testified that he, Grohol, was not intimidated. This 
contention, the minority respectfully submits, resolves itself into the 
fact that one or more witnesses testified that they ``smelled liquor on 
Elbern and Rosenberg's breath''; and this House is asked to deprive Mr. 
Bloom of his seat herein because, forsooth, Chandler's witnesses 
smelled liquor on a man's breath. No liquor was given a voter, and no 
officer charged that the freedom of election was interfered with in any 
manner whatsoever. (See Norris v. Handley, 42d Cong.; Chaves v. Clever, 
40th Cong.; Bromberg v. Harolds, 44th Cong.; Harrison v. Davis, 36th 
Cong.)

         (Eighth.) That this poll should be rejected because the 
     ballots were improperly counted.

    The method of counting cast ballots is directory; any method which 
will ascertain the true number cast is sufficient; the count was 
conducted and agreed to by the representatives of both parties; the 
true number was tab

[[Page 1448]]

ulated, and the recount disclosed that the first count was correct; 
certainly the contestee can not be held responsible for the failure of 
the officers to do their duty properly; no fraud can possibly be 
attached to this dereliction of the election officers if in this 
instance they failed to strictly comply with the law.

         (Ninth.) That this poll should be rejected, the twenty-
     third election precinct in the eleventh assembly district, 
     because the inspectors failed to report the 53 missing 
     ballots.

    The failure of the inspectors to report the 53 missing ballots when 
they made their return did not affect the result of the vote in this 
precinct. They reported the exact vote found in the box. We submit 
again that the provision of the law which required them to report the 
missing ballots and the unused ones was directory only and these 
returns can not be legally rejected for this reason. (Carney v. Smith, 
63d Cong.; Gaylord v. Carey, 64th Cong.; Larrazola v. Andrews, 60th 
Cong.)
    A party can not be held responsible for the mistakes and omissions 
of election officers chosen necessarily from all classes of persons. 
There were more than a thousand election officers who held this special 
election; it is not expected that none of them made any mistakes. It is 
sufficient that the result was not affected by such mistakes. (Barnes 
v. Adams, 41st Cong.)

  thirty-first election district of the seventeenth assembly district

    (a) The allegation is that this election board was illegally 
constituted in that Rothchilds, one of the inspectors, had been 
indicted in 1920, and further, that the board was organized before one 
of the inspectors arrived. No question is raised as to the 
qualification of three of the inspectors; Rothchilds is attacked 
because he had been once indicted. He was never tried for any offense 
and never convicted. Neither under the law nor on principle was this 
inspector, Rothchilds, disqualified; an indictment is a mere accusation 
and does not stamp a man as having a bad character or disqualify him 
for holding an office. Rothchilds was a de jure inspector. The evidence 
discloses that the board was organized before anyone offered to vote, 
and that no one voted until all four inspectors were acting. Certainly 
upon this position this poll should not be rejected.
    (b) The charge of electioneering in this precinct was based on the 
statement of a Republican worker that a Democratic captain handed out a 
few cigars and cards to some voters. If this is true, under the laws of 
New York it would only constitute a misdemeanor, and, as any fair mind 
would readily see, would not affect the integrity of the ballot box, 
because these party captains are not election officers. But this 
statement is flatly contradicted by three reputable witnesses and two 
police officers. No effort is made to connect this instance with any 
effect that it had on the results of the election. Under the authority 
of Congress it could not vitiate a poll. (Wiggington v. Pacheo, 45th 
Cong.)
    (c) The charge is made that one of the inspectors of election 
squeezed the ballot in such a way as to see how it was marked and as a 
result kept a

[[Page 1449]]

private tally, thereby violating the secrecy of the ballot. The witness 
testifying discredits his own testimony. He states at 3 o'clock in the 
afternoon he was permitted to look at this tally and it showed 73 for 
Chandler and 40 for the Socialist candidate. The fact is that even 
after the recount Chandler only received 65 votes and the Socialist 14. 
The undisputed testimony is that the heaviest voting was in the late 
afternoon, and it would be preposterous to say that Chandler received 
no votes between 3 o'clock and 6 o'clock and the Socialist never had 
over 14 votes. It is foolish reasoning to say that a man bent upon the 
perpetration of some crooked enterprise in an election would 
voluntarily call and show the opposing side the very methods by which 
he was accomplishing his purposes. Viewing it from the most serious 
aspect of the contestant's charge it would have no other effect than to 
subject the offending official to punishment for a misdemeanor, and 
certainly would not vitiate the ballot. This story, however, is 
emphatically denied by two reputable witnesses. It is not here shown, 
if such an incident occurred, that it interfered with the freedom of 
the election or kept anyone from the polls, and therefore could not 
have tainted the election with fraud.
    (d) The other charge that ballots were mutilated by inspectors 
tearing the stubs off jaggedly is equally discredited by the physical 
feet that the examination of the ballots on the recount disclosed that 
of all the ballots east only five were held out as void in this 
precinct, and that not one of these five was mutilated.
    (e) The intimidation charged by the contestant did not relate to 
the intimidation of voters, but of the Republican election officials. 
The two officials who it is claimed were intimidated expressly contend 
that they were neither threatened nor put in fear by anyone, and there 
were two police officers present, and that not a single complaint was 
made to these officers. We can not attach as much importance to the 
intimidation which they seek to prove in this precinct as we did to 
that which they sought to prove in the twenty-third of the eleventh 
heretofore discussed.
    (f) There was a slight incorrectness in the count of the ballots in 
this precinct. However, no importance can be attached to this because 
the recount of the ballots by the contestant and contestee and their 
attorneys effected a correction, the purpose a recount is supposed to 
serve. It is disclosed that there was a great deal of wrangling between 
the inspectors as to whether certain ballots were good or bad, and also 
as to whether or not one of the inspectors called the ballots too 
rapidly. The result was that the two tally clerks arrived at different 
results. This feature of the contestant's charge has been completely 
remedied by the recount and, therefore, can under no circumstances 
vitiate this ballot. We submit that this precinct should not be thrown 
out.

    thirtieth election district of the seventeenth assembly district

    It is our opinion that these grounds for contest should not be 
considered because they were not included in the original notice of 
contest. They were added in an amended notice of contest two months 
after the time to serve a notice of contest had expired. The statutes 
clearly provide that the notice of contest must be filed within 30 days 
after the election. The contestant

[[Page 1450]]

served notice of contest on contestee March 3, 1923. Contestee answered 
and then, on May 10, 1923, he filed this amended notice of contest.
    (a and b) Considering the merits of this particular district, 
however, we find that during the time the parties and their attorneys 
were recounting the ballots in the offices of the board of election in 
downtown New York they found among the unused ballots of this district 
that 34 were missing. While the New York statutes require the 
preservation of unused ballots, yet it is self-evident that they can 
not and would not have the sanctity accorded to a used ballot because 
they serve no useful purpose. We can not say that this precinct should 
be thrown out because three months after the election 34 unused ballots 
were found to be missing. There is no testimony to show that they were 
missing on the day of the election or at the time the returns were 
made. The only time they were discovered as missing was three months 
after the election was over. Without a word of testimony as to when or 
how these ballots disappeared, or by whom they were taken or lost, the 
majority of the committee have indulged themselves in the conclusion 
that the disappearance of these ballots had something to do with 
tainting the poll with fraud. The disappearance of these ballots is 
brought no closer to this polling place than several city miles and no 
closer in time to the election than three months. It can with equal 
propriety be charged that these ballots were missing by the efforts of 
Chandler's supporters as to charge it to the Bloom supporters.
    A weak attempt is made to establish a substitution of ballots in 
this district by a twist of legal procedure the sanction of which is 
found in the decision of no court anywhere. The contestant and two 
other parties seek to establish the substitution of ballots in this 
precinct by the impeachment of their own witness. They used an old 
Italian barber as a witness and sought to draw from him that he had 
told these other persons that he had observed one of the inspectors 
pocketing ballots cast. He denied making the statement or any other 
statement that would lead to an inference of the kind suggested. 
Contestant and his other two witnesses then took the stand and 
testified that they were told this by this Italian barber. In other 
words, we are asked to accept as true the unsworn statement of this 
barber to establish a fact which he swears himself is not true. No rule 
of evidence could be tortured into a construction which would render 
admissible this testimony as tending to establish any fact. Any 
irregularities in the returns in this district are of such minor 
importance as not to justify a discussion on our part, or they were 
corrected by the recount.
    It is interesting to know that Robert Oppenheim, the Republican 
leader of the seventeenth assembly district, in which are located the 
thirtieth and thirty-first election districts, testified that he was at 
this precinct and the thirty-first several times during the day, and 
that he had workers and captains there all the time; that he did not 
see anything in the district upon this election day which warranted his 
belief that anything wrong was being done or any fraud being 
perpetrated or any irregularities taking place, and that as far as his 
knowledge and information were concerned such did not occur. If any 
fraud such as would justify the throwing out of this box were 
perpetrated in this assembly district, it is astounding that the party 
leader

[[Page 1451]]

of the district would not know anything of it, much less not even hear 
of it. . . .
    Upon a legal canvass of the votes cast at this special election in 
the nineteenth congressional district in the State of New York, the 
contestee, Sol Bloom, received a plurality of 191 votes over the 
contestant; upon a recount of said votes upon conceded lawful votes, 
votes agreed by both parties to be in all respects legal votes, the 
contestee had a plurality of 126; the election committee increased this 
plurality upon thorough investigation to 153 and then reduced this 8 
votes, leaving a net plurality for the contestee of 145.
    To overcome this majority of 145 votes, which contestee has over 
the contestant, the committee rejects the votes cast in the twenty-
third election precinct of the eleventh assembly district, and the 
votes cast in the thirtieth and thirty-first election precincts of the 
seventeenth assembly district. These three precincts had given Bloom 
369 more votes than Chandler had received in said districts, and in 
this manner declared Chandler elected.
    The election inspectors who held this election and who counted the 
ballots cast at the several precincts, there being 156 thereof, threw 
out more than 600 ballots which were attempted to be cast for Mr. 
Bloom, because these ballots were marked improperly, though they 
clearly disclosed that the voter in good faith intended to vote for Mr. 
Bloom; they technically complied with the law and the New York statute. 
We make no protest as to this, but in all fairness we invoke the right 
to compel the contestant to also comply with the law and the well-
accepted rules thereof when he undertakes to overcome the presumption 
in favor of the legality of the returns of this election, which 
certified that he was defeated by the contestee by his allegation of 
fraud and irregularities. Unless he does so to the satisfaction of this 
House, by evidence which is strong, clear, and convincing, and carries 
with it a conviction of the truth of his charges, he should not avail.
    The undersigned members of the committee therefore recommend the 
adoption of the following resolution:

         Resolved, That Walter M. Chandler was not elected a 
     Representative to the Sixty-eighth Congress from the 
     nineteenth congressional district of the State of New York; 
     and
         Resolved, That Sol Bloom was elected a Representative to 
     the Sixty-eighth Congress from the nineteenth congressional 
     district of the State of New York.

    Privileged resolution (H. Res. 254) agreed to as amended (209 yeas 
to 198 nays with 3 ``present'') after extended debate in which 
contestant was permitted to participate and after adoption of 
substitute (210 yeas to 198 nays with 5 ``present'') declaring 
contestee entitled to a seat and declaring contestant not so entitled 
[65 Cong. Rec. 6034, 68th Cong. 1st Sess., Apr. 10, 1924; H. Jour. 418, 
419].

[[Page 1452]]

Sec. 4.3 Clark v Moore, 1st Congressional District of Georgia.

    Evidence.--Contestant failed to offer sufficient proof of 
allegations of fraud and conspiracy to defraud by election officials of 
contestee's party.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 2 submitted by Mr. John M. 
Nelson, of Wisconsin, on Mar. 26, 1924, follows:

                             Report No. 367

                 Contested Election Case, Clark v Moore

    The basic contention of the contestant in this case is that because 
the Democratic Party controlled all State and county officers that a 
monocratic form of government was thus set up, making it impossible for 
a Republican candidate to have any watchers at the polls or in any 
other way to secure a fair opportunity to win an election. On this 
ground contestant desires the results of the election vitiated and the 
seat of the contestee declared vacant in the House of Representatives.
    The committee can find no justification in evidence or in practice 
for the disfranchisement of the voters of the first congressional 
district of Georgia merely because that district is dominantly 
Democratic in its politics.
    The committee finds no evidence to support allegations 1, 2, 3, and 
4 of contestant that the State and county officials were confederated 
in a conspiracy to deprive him of the privilege of running as a 
candidate for Congress from the first district.
    The committee finds no evidence to support the allegation of 
contestant that the actions of the county election officials in the 
counties of the first district were such as to vitiate the results of 
the election.
    The committee finds no evidence to support the allegation of the 
contestant that county officials in refusing to distribute contestant's 
blank ballots committed an act which vitiated the results of the 
election.
    The committee finds no evidence to support the allegation of 
contestant that the election was void because of disqualification of 
the election managers in the various counties of the first district.

    The committee finds no evidence to sustain the allegation of the 
contestant that the election has not been completed under the laws of 
Georgia as they were at that time.
    The committee finds no evidence to support the allegation that the 
actions of the chairman of the State Democratic executive committee of 
Georgia were such as to vitiate the results of the election.
    The committee finds no evidence to support the allegation of the 
contestant that the managers of elections were not qualified by law to 
so act; that there was repeating and other fraudulent voting practices; 
that any votes cast for contestant were deliberately destroyed 
uncounted.

[[Page 1453]]

    The committee finds that the contestant in his brief has been 
reckless and extravagant in his use of language and in making charges, 
and that the contestant offers assumption instead of evidence to prove 
his contention.
    The contestant avers that in some of the precincts the ballots were 
burned and in others that they were lost. He offers no evidence to show 
that any of the ballots alleged to have been burned or lost were cast 
for him, but bases his claim that they were cast for him on the ground 
that if they had been cast for the Democratic candidate they would not 
have been burned or lost.
    The contestant's allegation that in some of the counties many of 
the polling places were not open, so the voters could cast their 
ballot, remains unproven, and on the contrary the evidence shows that 
there was ample opportunity for the voters to cast their ballots if 
they chose to do so.
    The contestant's allegation that 600 ballots cast by colored voters 
in the city of Savannah were cast for him is unproven, the only 
evidence that such was the case being the assumption by three colored 
witnesses that the colored voters of Savannah naturally would vote for 
a Republican candidate.
    The contestant has utterly failed to show, even if he were allowed 
all of the votes which he claims were cast for him and were burned or 
lost, that he would have a majority of the votes cast in the district; 
but in fact the contestee would have a large plurality over the 
contestant in any event.
    Although the contestant has failed to show cause why the election 
should be voided, or why the contestee's title to his seat in the House 
of Representatives should be invalidated, even if the contestee's seat 
were vacated by the committee, there is nothing in the evidence to show 
that the contestant would be entitled to it.
    It is difficult to follow the reasoning of the contestant since his 
brief is made up of such allegations as the following:

         Hope that the fires of loyalty and devotion to 
     constitutional laws and its enforcement may be rekindled; 
     that the viperous political fangs of an idiocratic monocracy 
     shall no longer be tolerated, by crime, treachery, and 
     treason, to paralyze the decadent people and state, it has so 
     long deluded and enslaved, but that it and the system shall 
     be wrenched from the politic heart of Georgia, has impelled 
     this contest.

    And further the following:

         When, where, and why has the reward of fraud, crime, 
     conspiracy, and treason been held to produce the domination 
     of vice, here--produce a vacant seat in the Sixty-eighth 
     Congress of the United States? Contestant now and here defies 
     contestee to offer such precedent or rule of law. When he 
     does, then it will have come to pass that a sufficiency of 
     crime and treason, and the criminals and traitors, thereby 
     produced, will automatically vacate, at their pleasure, every 
     seat in the upper and lower House of Congress, and all 
     Government will end.

[[Page 1454]]

    The above quotations are typical of the nature of the contestant's 
brief in this case, and your committee is of the opinion that such 
loose, extravagant, and unfounded charges being made the basis for an 
election contest with the consequent expense to the Government should 
be discouraged in the future.

                         summary and conclusion

    Your committee therefore finds that the contestant has failed to 
prove the allegations contained in his brief, that there is no evidence 
warranting the rejection of the votes of any of the precincts of the 
district; and that the contestee, R. Lee Moore, was duly and legally 
elected a Member of the House of Representatives from the first 
district of Georgia. For the above reason your committee recommends the 
adoption of the following resolutions:

         Resolved, That Don H. Clark was not elected a Member of 
     the House of Representatives in the Sixty-eighth Congress 
     from the first congressional district of the State of 
     Georgia, and is not entitled to a seat herein.
         Resolved, That R. Lee Moore was duly elected a Member of 
     the House of Representatives in the Sixty-eighth Congress 
     from the first congressional district of Georgia, and is 
     entitled to retain his seat herein.

    Privileged resolution (H. Res. 340) agreed to by voice vote without 
debate [65 Cong. Rec. 10323, 68th Cong. 1st Sess., June 3, 1924; H. 
Jour. 369].

Sec. 4.4 Claim of E. W. Cole to Seat, At Large, Texas.

    Apportionment.--The right of a Member-elect with regular 
credentials to a seat, where the state's representation would thereby 
be in excess of the state entitlement under existing law, was denied by 
the House.
    The constitutional provision requiring reapportionment by act of 
Congress after each decennial census was held to be discretionary as to 
time for enactment, and to preclude the House from itself increasing 
its total membership and creating an extra unfunded seat.
    Report adverse to the claim of a Member-elect, who was not seated.
    Report of Committee on Elections No. 2 submitted by Mr. John M. 
Nelson, of Wisconsin, on Mar. 29, 1924, follows:

[[Page 1455]]

                             Report No. 398

                      Claim of E. W. Cole to Seat

                         statement of the case

    Under the constitutional provision providing for representation of 
the States in the House of Representatives on a basis of numerical 
population, and basing its action on the census of 1920, the State of 
Texas proceeded to elect a Representative at Large on the ground that 
the census of 1920 entitles the State of Texas to one more 
Representative than it now has in Congress, making the number 19 
instead of 18.

    In May, 1922, E. W. Cole, of Austin, Tex., had his name placed on 
the ballot to be voted on in the primary election in the selection of 
Democratic nominees for various offices of the State as well as for 
Representative at Large in Congress. Mr. Cole secured recognition on 
the ballot through the Democratic State executive committee according 
to his brief filed with his claim. He further alleges that in July, 
1922, at the primary election he received practically the unanimous 
vote of the Democratic Party of Texas for the nomination for the 
position of Representative at Large.
    The Governor of the State of Texas at the proper time, it is 
alleged, issued his proclamation calling for the election of the 
various Members of Congress and the State officers in November, 1922, 
and among other provisions included in the proclamation was one for the 
election of a Representative at Large in Congress for the State of 
Texas.
    Claimant alleges that his name was duly placed upon the Democratic 
ballot as the candidate for that party in the general election held in 
November, 1922, and that the Republican Party of the State of Texas had 
placed upon its ballot as a candidate for the same office the name of 
Herbert Peairs.
    Claimant alleges that in the election November, 1922, the said 
Herbert Peairs received 46,048 votes and that claimant received 265,317 
votes.
    Claimant further alleges that thereafter the election board of 
Texas canvassed the result of the said general election, and declared 
that E. W. Cole, the claimant, was duly elected as Representative at 
Large from the State of Texas, and that thereafter in due time and form 
the Hon. Pat. M. Neff, Governor of the State of Texas, issued, signed, 
and delivered a certificate of election to claimant as Representative 
at Large for the State of Texas, and that said certificate of election 
was duly filed with the Clerk of the House of Representatives of the 
Congress of the United States. Claimant further alleges that the Clerk 
of the House of Representatives received and is holding said 
certificate of election, but has refused to file the same or to 
recognize the claims of the claimant for a seat in the House of 
Representatives of Congress and has refused to recognize the 
appointment of a secretary and other privileges to which the said E. W. 
Cole would be entitled as a Representative in the House of 
Representatives in the Sixty-eighth Congress.
    All of which allegations your committee assumes to be true, having 
taken no evidence concerning them.
    Claimant's counsel cites in support of the claim Article I, Section 
II, Subdivision III of the Constitution of the United States, which 
reads as follows:

[[Page 1456]]

         Representatives and direct taxes shall be apportioned 
     among the several States which may be included within this 
     Union, according to their respective numbers, which shall be 
     determined by adding to the whole number of free persons, 
     including those bound to service for a term of years, and 
     excluding Indians not taxed, three-fifths of all other 
     persons. The actual enumeration shall be made within three 
     years after the first meeting of the Congress of the United 
     States and within every subsequent term of ten years, in such 
     manner as they shall by law direct.

    Claimant's counsel further cites Section II of Article XIV of the 
Constitution of the United States, in which the following language is 
found:

         Representatives shall be apportioned among the several 
     States according to their respective numbers, counting the 
     whole number of persons in each State, excluding Indians not 
     taxed. But when the right to vote at any election for the 
     choice of electors for President and Vice President of the 
     United States, Representatives in Congress, the executive 
     officers of a State or the members of the legislature 
     thereof, is denied to any of the male inhabitants of such 
     State, being 21 years of age and citizens of the United 
     States, or in any way abridged, except for participation in 
     rebellion or other crime, the basis of representation therein 
     shall be reduced in the proportion which the number of such 
     male citizens shall bear to the whole number of male citizens 
     twenty-one years of age in such State.

    It may be observed that male citizens only are referred to in this 
section of the Constitution, but by the nineteenth amendment to the 
Federal Constitution women were enfranchised and now those 
constitutional provisions have to be read in connection with the 
nineteenth amendment.
    Claimant sets up the theory that not only is the direction for 
taking the census made mandatory in the Constitution, but that the 
action of Congress to enact a reapportionment act based upon each 
succeeding census is also mandatory.
    Your committee of course agrees that taking of the census is made 
mandatory by the Constitution; but while it be true that for a hundred 
years the Congress has at its first session following the taking of a 
census enacted a reapportionment act, the time of performing this duty 
is not made mandatory by the Constitution but remains discretionary 
with the Congress.
    While it is true that some color may be given a claim that long-
established custom has fixed that time for Congress to pass a 
reapportionment act the first session of Congress following the taking 
of the census, it still remains custom and not a constitutional 
provision nevertheless.
    Your committee sympathizes with the view that since no explicit 
time is set by the Constitution in which Congress shall enact a 
reapportionment act following the taking of a census, the framers of 
the Constitution had in mind that Congress should within a reasonable 
time after the taking of the census make a reapportionment. Your 
committee also sympathizes with the view

[[Page 1457]]

that the long-established custom of the Congress in providing for a 
reapportionment at the first session following the taking of the census 
lends some weight to the claim that this practice has established that 
time as being a reasonable time within the meaning of the Constitution.
    Claimant cites a resolution by the Texas Legislature in which the 
legislature petitions Congress to seat claimant on the ground that the 
official census of 1920 showed the representative population of Texas 
to be 4,663,228, the legislature calling attention to the fact that the 
official census of 1920 shows the representative population of the 
United States to be 105,371,598 and reciting the fact that the present 
or Sixty-eighth Congress came into existence on March 4, 1923, and that 
the membership of the House has not been changed and still remains 435.
    Your committee has no reason to question the facts as set forth in 
the petition of the Texas State Legislature.
    The situation presented here, however, brings up the question of 
whether or not it is incumbent upon Congress as a duty to enact a 
reapportionment act at its first session following a taking of the 
census. That is a matter for the Congress and not this committee to 
pass upon.
    In the view of the committee two insurmountable obstacles to the 
seating of claimant obtrude themselves.
    The first is: The number of Representatives fixed by an act of the 
Congress in 1913, based upon the official census of 1911, is 435. That 
act of Congress was passed by the House, then by the Senate, and was 
signed by the President of the United States. Your committee is of the 
opinion that the House of Representatives alone could not amend or 
modify an act of the whole Congress by increasing the membership of the 
House of Representatives to 436 without the act of the House being 
passed upon by the United States Senate and the President of the United 
States. Consonant with that view, then, your committee is of the 
opinion that if this claimant were to be seated he would have to be 
seated through an act of Congress to increase the membership of the 
House to 436.

    The second obstacle is: Even though the House might attempt by its 
own act and independently of the Senate and of the President of the 
United States to seat claimant, thereby increasing the membership of 
the House by one Member and increasing the representation of the State 
of Texas by one, there would be no fund with which to pay the salary, 
clerk hire, mileage, and other perquisites and expenses of claimant, 
because the appropriation from which salaries, clerk hire, mileage, and 
other expenses of Members of the House of Representatives is paid is an 
appropriation passed by an act of the whole Congress and approved by 
the President of the United States, and therefore, even though claimant 
were seated, his salary and perquisites would have to be paid by a 
special act of Congress.
    Claimant cites in support of his claim the case of F. F. Lowe, 
quoted in the Thirty-seventh Congress, second session, House of 
Representatives Report No. 79 (U.S. House Reports, vol. 3, 37th Cong., 
2d sess.), which case was substantially as follows:
    A memorial was based upon the alleged right of California to three 
Representatives in the Thirty-seventh Congress. By a special provision 
of a stat

[[Page 1458]]

ute enacted July 30, 1852, it was provided that California should have 
two Representatives until a new apportionment should take effect. But 
that State, believing that the apportionment based on the Eighth Census 
had already taken effect, did at a general election elect three persons 
to represent the State in Congress. Two of the persons elected were 
duly seated, while the third, F. F. Lowe, was denied a seat, so that 
the case in point does not sustain the claim of E. W. Cole, but 
operates to deny his claim, since the committee authorized to consider 
the Lowe case came to the conclusion, which your committee now holds, 
that the proper procedure, where a State believing itself entitled to 
more Representatives than the number fixed by an apportionment act of 
the Congress elects a Representative at large, is for such 
Representative at large to be seated by an act of Congress and not by 
an action solely of the House.
    Your committee is of the opinion that to attempt to settle 
questions of the nature involved in this case by seating the claimant, 
would be to disorganize the House of Representatives. It would bring up 
other questions, such as the action to be taken in the cases of States 
which are now overrepresented, due to decrease in their population.
    Your committee is of the opinion that in cases where States elect 
Representatives at large in the belief that such States are entitled to 
greater representation than they now have, the proper procedure is for 
such claimants to find their remedy through a bill presented to the 
Congress for action rather than through a report from an elections 
committee.
    Your committee understands that the claimant in this case has 
caused a bill to be introduced to increase the membership of the House 
by one Member and to seat claimant. This is a matter for the Congress 
to pass upon and does not fall within the scope of this committee's 
functions.
    Therefore, your committee recommends that the following resolution 
be adopted by the House of Representatives:

         Resolved, That E. W. Cole is not entitled to a seat in 
     this House as a Representative from the State of Texas in the 
     Sixty-eighth Congress.

    Privileged resolution (H. Res. 341) agreed to by voice vote without 
debate [65 Cong. Rec. 10324, 68th Cong. 1st Sess., June 3, 1924; H. 
Jour. 636].

Sec. 4.5 Gorman v Buckley, 6th Congressional District of Illinois.

    Evidence not having been forwarded to the House by the official 
appointed by contestant to take testimony within the time required by 
an elections committee rule, contestant was held not to have standing 
to institute the contest.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 3 submitted by Mr. Richard N. 
Elliott, of Indiana, on May 13, 1924, follows:

[[Page 1459]]

                             Report No. 722

               Contested Election Case, Gorman v Buckley

                         statement of the case

    At the general election held in the sixth congressional district of 
the State of Illinois on November 7, 1922, according to the official 
returns, James R. Buckley, Democratic candidate, received 58,928 votes, 
John J. Gorman, Republican candidate, received 58,886 votes, and John 
S. Martin, Socialist candidate, received 4,341 votes. As a result of 
these returns James R. Buckley, contestee, was declared elected by a 
plurality of 42 votes over his Republican opponent, John J. Gorman, and 
a certificate of election was duly issued to him by the secretary of 
the State of Illinois. On January 2, 1923, the contestant, in 
accordance with law, served on the contestee a notice of contest in 
which it was alleged that errors, mistakes, and irregularities had been 
committed in said election and in the counting of the ballots in 
various precincts in said congressional district. The contestant 
claimed that a recount of the votes cast in the above precincts would 
disclose that the contestant was duly and legally elected.
    On January 27, 1923, the contestee served on the contestant an 
answer denying all of the allegations contained in contestant's notice 
of contest.

                         work of the committee

    The testimony in the case was duly printed and the contestant filed 
an abstract of record and also a printed brief and argument. The 
contestee filed his brief and the following motion:

              motion to strike depositions from the record

To the honorable the House of Representatives of the Sixty-eighth 
     Congress of the United States:

         Now comes James R. Buckley, contestee herein, by William 
     Rothman, his attorney, and moves that the depositions herein 
     and each of them filed herein by the commissioners 
     respectively designated by the parties to hear and take the 
     testimony be stricken from the record, on the ground that 
     said commissioners failed to file the said depositions with 
     the Clerk of this House, ``without unnecessary delay'' after 
     the taking of the same was completed as required by section 
     127 of the Revised Statutes as amended, in that the same were 
     not filed within 30 days after the completion of the taking 
     of said testimony as required by the rules of the Committee 
     on Elections of this honorable House; and in this connection 
     the contestee respectfully represents that the taking of 
     testimony herein was completed on April 28, 1923, at the hour 
     of 12:30 o'clock p.m., at which time the further hearing of 
     the said cause was adjourned sine die; that the only further 
     proceedings had in said cause subsequent to said April 28, 
     1923, were hearings which were had before his honor, Judge 
     Wilkerson,

[[Page 1460]]

     in the United States district court, which were had on June 2 
     and June 4, 1923; and that no further proceedings of any kind 
     or nature were had in the said cause subsequent to said June 
     4, 1923; and that the depositions filed herein by the 
     commissioner designated by the contestant were filed with the 
     Clerk of this honorable House on, to wit, November 5, A.D. 
     1923, more than 191 days following the completion of the 
     taking of testimony and more than 154 days after the date 
     when the last proceedings of any sort were had in said 
     contest.
         Dated at Chicago, Ill., November 20, 1923.

    Hearings were conducted by the committee on the 21st and 22d of 
April, at which time the contestant was present by himself and counsel, 
and the contestee was present by himself and counsel.

                            findings of fact

    The contestee's answer was served on contestant January 27, 1923. 
The act of Congress approved March 2, 1875 (U.S. Stat. L., vol. 18, ch. 
119, p. 338), provides that in all contested-election cases the time 
allowed for taking testimony shall be 90 days, and the testimony shall 
be taken in the following order: The contestant shall take testimony 
during the first 40 days, the returned Member during the succeeding 40 
days, and the contestant may take testimony in rebuttal only during the 
remaining 10 days of said period.
    In this case, therefore, the contestant, under said law, was 
allowed until March 9 in which to take his testimony in chief and the 
law required that the taking of all testimony should be completed on 
April 27, 1923. As a matter of fact, however, the contestant took only 
a part of his testimony in chief in the first 40 days, which expired on 
the 9th day of March, 1923. The contestee took no testimony in the next 
40 days. During the 10-day period at the end of the 90 days the 
contestant took some additional testimony, which was not in rebuttal, 
but was intended as testimony in chief. The testimony in this case was 
filed with the Hon. William Tyler Page, Clerk of the House of 
Representatives, on the 5th day of November, 1923.

                           conclusions of law

    Section 107 of the Revised Statutes of the United States as amended 
by the act of March 2, 1875, explicitly provides that all testimony in 
contested-election cases shall be taken within 90 days from the date on 
which the answer of the contestee is served upon the contestant, and 
that all officers taking testimony to be used in a contested-election 
case, whether by depositions or otherwise, shall, when the taking of 
the same is completed, and without unnecessary delay, certify and 
carefully seal and immediately forward same by mail or express, 
addressed to the Clerk of the House of Representatives of the United 
States, Washington, D.C.

    Rule 8 of the rules of the Committee on Elections in the House of 
Representatives, reads as follows:

[[Page 1461]]

         The words ``and without unnecessary delay'' in the third 
     line of section 127 of the Revised Statutes, as amended by 
     the act of March 2, 1887, shall be construed to mean that all 
     officers taking testimony to be used in a contested-election 
     case shall forward the same to the Clerk of the House of 
     Representatives within 30 days of the completion of the 
     taking of said testimony.

    Your committee finds that the contestant in this case ignored the 
plain mandate of the law and the rules of the Committees on Elections 
of the House and that he has no standing as a contestant before the 
House of Representatives.

                         summary and conclusion

    Your committee therefore finds that the contestant, not having 
complied with the provisions of the law governing contested-election 
cases, has no case which can be legally considered by the committee or 
by the House of Representatives.
    For the above reasons your committee recommends the adoption of the 
following resolutions:

         Resolved, That John J. Gorman was not elected a Member of 
     the House of Representatives in the Sixty-eighth Congress 
     from the sixth congressional district of the State of 
     Illinois and is not entitled to a seat herein.
         Resolved, That James R. Buckley was duly elected a Member 
     of the House of Representatives in the Sixty-eighth Congress 
     from the sixth congressional district of the State of 
     Illinois and is entitled to retain his seat herein.

    Privileged resolution (H. Res. 346) was agreed to by voice vote 
without debate [65 Cong. Rec. 10405, 68th Cong. 1st Sess., June 3, 
1924; H. Jour. 644].

Sec. 4.6 Ansorge v Weller, 21st Congressional District of New York.

    Ballots disputed at a complete recount conducted by the parties 
under state law were examined and recounted by an elections committee 
upon adoption by the House of a resolution reported from that committee 
authorizing subpoena of ballots and election officials.
    An elections committee, having adopted a resolution establishing 
categories of disputed ballots, recounted a plurality of valid ballots 
for contestee.
    Report for contestee, who retained his seat.
    On Mar. 31, 1924, Mr. Frederick W. Dallinger, of Massachusetts, 
from the Committee on Elections No. 1 reported (H. Rept. No. 409) and 
called up as privileged the following resolution (H. Res. 242):

[[Page 1462]]

    Resolved, That John Voorhis, Charles E. Heydt, James Kane, and 
Jacob Livingston, constituting the board of elections of the city of 
New York, State of New York, their deputies or representatives be, and 
they are hereby, ordered to appear by one of the members, the deputy or 
representative, before Elections Committee No. 1 of the House of 
Representatives forthwith, then and there to testify before said 
committee, or a subcommittee thereof, in the contested-election case of 
Martin C. Ansorge, contestant, v. Royal H. Weller, contestee, now 
pending before said committee for investigation and report; and that 
said board of elections bring with them all the disputed ballots, 
marked as exhibits, cast in every election district at the general 
election held in the twenty-first congressional district of the State 
of New York on November 7, 1922. That said ballots be brought to be 
examined and counted by and under the authority of said Committee on 
Elections in said case, and to that end that the proper subpoena be 
issued to the Sergeant at Arms of this House, commanding him to summon 
said board of elections, a member thereof, or its deputy or 
representative, to appear with such ballots as a witness in said case; 
and that the expense of said witness or witnesses, and all other 
expenses under this resolution, shall be paid out of the contingent 
fund of the House; and that said committee be, and hereby is, empowered 
to send for all other persons or papers as it may find necessary for 
the proper determination of said controversy; and also be, and it is, 
empowered to select a subcommittee to take the evidence and count said 
ballots or votes and report same to Committee on Elections No. 1, under 
such regulations as shall be prescribed for that purpose; and that the 
aforesaid expense be paid on the requisition of the chairman of said 
committee after the auditing and allowances thereof by said Committee 
on Elections No. 1.

    Reported privileged resolution (H. Res. 242) was agreed to by voice 
vote without debate [65 Cong. Rec. 5271, 68th Cong. 1st Sess., Mar. 31, 
1924; H. Jour. 381].
    Report of Committee on Elections No. 1 submitted by Mr. R. Clint 
Cole, of Ohio, on May 14, 1924, follows:

                             Report No. 756

               Contested Election Case, Ansorge v Weller

    At the election held in the twenty-first congressional district in 
the State of New York on November 7, 1922, according to the official 
returns Royal H. Weller, the contestee, who was the Democratic 
candidate, received 32,392 votes and Martin C. Ansorge, the contestant, 
who was the Republican candidate, received 32,047 votes, all other 
candidates receiving 2,836 votes. Royal H. Weller, the contestee, was 
declared elected by a plurality of 345 votes over his Republican 
opponent, Martin C. Ansorge, and a certificate of election was duly 
issued to him by the secretary of state of New York.
    On December 28, 1922, the contestant, in accordance with law, 
served on the contestee a notice of contest, a copy of which notice and 
attached petition was in due course filed with the Clerk of the House 
of Representatives and

[[Page 1463]]

in which notice and petition were set forth numerous grounds of 
contest, which may be summarized as follows:
    That the count, canvass, and handling of the ballots in the 
election districts of the said congressional district were not 
conducted in the lawful, orderly, and proper manner, provided for by 
the election law to prevent fraud and unintentional error.
    That the contestant prays that the said ballots may be counted 
under the direction of the House of Representatives by its duly 
authorized committee and the true result of said election by them 
ascertained and declared and that if said representations are found to 
be true and correct, that he has been reelected as a Member of 
Congress, that the House of Representatives shall so declare, and that 
he be sworn in as a Member of the Sixty-eighth Congress.

    To said notice and petition the contestee, on January 26, 1922, 
filed his answer setting forth that the notice of the contestant was 
insufficient in that it contained no facts or proof whatsoever to raise 
any presumption whatever of mistake, irregularity, or fraud in the 
original count or canvass, and asking that the application founded 
thereon be dismissed.
    Pursuant to the above notice and petition, the contestant thereupon 
proceeded, and both parties or their counsel, conducted a recount of 
all the ballots cast in the twenty-first congressional district of New 
York at the general election held on November 7, 1922.
    The complete and voluminous record and abstract of this recount of 
70,525 ballots from the 188 precincts of the twenty-first congressional 
district of New York were duly filed with the Clerk of the House of 
Representatives and duly transmitted to this committee; together with 
the briefs so filed by both parties.
    According to the record, during said recount the contestant gained 
75 votes in one election district, 60 in another, 33 in another, 22 in 
another, 17 in another, and lesser net gains in other boxes of separate 
election districts and upon such recount it was then and is now agreed 
by counsel for both parties, that upon conceded votes the contestant 
overcame the contestee's lead or first plurality of 345 and that upon 
the result of such recount the contestant was ahead of the contestee 
115 votes upon the conceded votes, without taking into account the 820 
disputed ballots which were subsequently brought before the committee 
by the Sergeant at Arms under a resolution of this committee adopted by 
the House of Representatives.
    Previous to the sending for the disputed ballots, hearings were 
given to the parties by your committee on Thursday, March 20, 1924, and 
Friday, March 21, 1924, at which oral agreements were presented by both 
the contestant and the contestee and by eminent counsel in their 
behalf--James R. Sheffield, Esq., and Jacob H. Corn, Esq., appearing 
for the contestant, and Hon. John W. Davis, John Godfrey Saxe, Esq., 
and Judge George W. Olvany, appearing for the contestee.
    At a subsequent hearing in this case before this committee, held on 
the 22d day of April, 1924, counsel for contestee offered the following 
resolution for adoption by the committee:

[[Page 1464]]

         Resolved, That in order to expedite the work of the 
     committee, counsel for the respective candidates be, and they 
     hereby are, instructed, during the next hour to arrange the 
     various ballots which have been brought from New York to 
     Washington into the following piles:
         1. Ballots marked otherwise than with a pencil having 
     black lead- this is, ballots marked in ink or with a blue 
     crayon or with an indelible pencil, etc.
         2. Ballots bearing a mark for the office of Congressman 
     challenged on the ground that the lines of the alleged cross 
     mark do not cross-i.e., alleged y's, v's, and t's.
         3. Ballots bearing a cross mark where the lines cross but 
     challenged because of extra lines forming part of the cross, 
     or because of other irregularities in character or form of 
     the mark.
         4. Ballots bearing a cross mark outside of the voting 
     squares.
         5. Ballots bearing two cross marks for the office of 
     Congressman, irrespective of whether such marks were made by 
     the voter or claimed to be reprints or impressions.
         6. Ballots bearing erasures, smudges, or ink marks.
         7. Ballots bearing any name written on the ballot.
         8. Ballots challenged because they appear to have been 
     torn by someone.
         9. Ballots other than the above which are challenged by 
     either party because of extra lines, dots, and dashes 
     disconnected with the cross mark.
         10. All other ballots.

    This resolution was agreed to by all parties and adopted by the 
committee, whereupon the counsel for both parties arranged the ballots 
into classes, after which the committee heard the argument of counsel 
on both sides as to the application of the New York statutes and 
decisions to separate ballots and classes of ballots, and the marking 
thereof, counsel arranging ballots in 12 classes, 2 additional classes 
being found advisable by them.
    During argument before committee throughout the days of April 23 
and April 24, counsel for both parties agreed as to a great number of 
the ballots of different classes being good for one party or the other, 
void, or disputed, and as to a great number of the disputed ballots, 
for the information of the committee, counsel stipulated in the record 
their respective claim or objection.
    The committee having taken jurisdiction of the ease after a hearing 
on the pleadings and after hearing argument of counsel as to the 
disputed ballots over a period of 10 days, held executive sessions and 
gave careful consideration to all issues presented by argument and 
evidence and by the ballot exhibits. While not considering that the 
committee was bound by the stipulations and agreements of counsel as to 
good, void, and protested ballots, the members of the committee have 
substantially sustained the agreements of counsel and have passed upon 
the unagreed ballots submitted for the consideration and determination 
of the committee as well as those included in the

[[Page 1465]]

groups agreed by counsel to be good votes for either party or void, as 
the ease may be. The following tabulation shows the result of the 
committee's canvass of the entire group of ballots marked as exhibits 
during the recount held in New York:

----------------------------------------------------------------------------------------------------------------
                                                                                            Good         Good
                                                                                        ballots for  ballots for
                                                                                         contestant    contestee
----------------------------------------------------------------------------------------------------------------
Class 1...............................................................................           17            8
Class 2...............................................................................           12           20
Class 3...............................................................................           12            7
Class 4...............................................................................  ...........            1
Class 5...............................................................................            2           33
Class 6...............................................................................           30           43
Class 7...............................................................................            2            2
Class 8...............................................................................  ...........            1
Class 9...............................................................................            5           15
Class 10..............................................................................           29           70
Class 11..............................................................................            7           29
Class 12..............................................................................           64           69
Envelopes.............................................................................            7           14
                                                                                       -------------------------
        Total.........................................................................          187          312
New York recount totals...............................................................       31,892       31,777
                                                                                       -------------------------
        Grand total...................................................................       32,079       32,089
----------------------------------------------------------------------------------------------------------------

    Your committee therefore finds that at the election held in the 
twenty-first congressional district of the State of New York on 
November 7, 1922, Royal H. Weller received 32,089 votes and Martin C. 
Ansorge received 32,079 votes and that Royal H. Weller was elected by a 
plurality of 10 votes.
    Your committee therefore recommends to the House of Representatives 
the adoption of the following resolutions:

         Resolved, That Martin C. Ansorge was not elected a 
     Representative from the twenty-first congressional district 
     of the State of New York and is not entitled to a seat 
     herein.
         Resolved, That Royal H. Weller was duly elected a 
     Representative from the twenty-first congressional district 
     of the State of New York and is entitled to retain a seat 
     herein.

    Privileged resolution (H. Res. 328) agreed to by voice vote without 
debate [65 Cong. Rec. 9631, 68th Cong. 1st Sess., May 27, 1924; H. 
Jour. 593].

Sec.  4.7 Frank v LaGuardia, 20th Congressional District of New York.

    Evidence not taken by contestant within the legal time was held 
grounds for discharge of an elections committee from further consid

[[Page 1466]]

eration of the contest where delay was not excusable and violated the 
statute, although the parties had stipulated to extensions; House and 
committee rules were considered mandatory as to the parties.
    Ballots.--An elections committee refused to order a partial recount 
where contestant was guilty of laches and did not offer evidence of 
fraud or irregularities in marking of ballots sufficient to change the 
election result.
    Unethical action by contestee's counsel was not held attributable 
to contestee.
    Report recommending discharge of committee with additional 
concurring views, contestee retained his seat.
    Report of Committee on Elections No. 2 submitted by Mr. John M. 
Nelson, of Wisconsin, on Jan. 7, 1925, follows:

                            Report No. 1082

               Contested Election Case, Frank v LaGuardia

                            finding of fact

    Official returns.--At the general election held in the twentieth 
congressional district of the State of New York on November 7, 1922, 
according to the official returns Fiorello H. LaGuardia, the contestee, 
who was the Republican candidate, received 8,492 votes, and Henry 
Frank, the contestant, who was the Democratic candidate, received 8,324 
votes. All the other candidates received 5,358 votes.
    Certificate of election.--As a result of these returns, Fiorello H. 
LaGuardia, the contestee, was declared elected by a plurality of 168 
over his opponent, Henry Frank, and a certificate of election was duly 
issued to him by the secretary of the State of New York.
    State proceedings.--The contestant resorted to proceedings in the 
courts of his State for an examination of the ballots, which was denied 
by Mr. Justice MacAvoy, of the supreme court. An appeal from this 
decision was taken but not prosecuted and the appeal dismissed. In a 
later action before Mr. Justice Giegerich to pass upon the validity of 
certain void ballots, the decision of the board of elections declaring 
some 40 ballots void was sustained by Judge Giegerich and these 
ballots, therefore, have been declared void both by the board of 
elections and by decision of the court in the State of New York. While 
these proceedings were discussed by counsel at the hearing, they 
furnished no aid to your committee. The findings of the board of 
elections remain unmodified.
    Notice of contestant.--On December 28, 1922, the contestant served 
on the contestee a notice of contest in which were set forth numerous 
grounds of contest. The allegations in the contestant's notice were of 
a general nature, not specifieally alleging instances where the 
election might have been invalidated, but claiming a majority of the 
legally cast ballots and asking an examination of the ballots and the 
ballot boxes to ascertain the facts.

[[Page 1467]]

    Denial of contestee.--On January 27, 1923, the contestee answered 
the contestant's notice of contest, in which he denied all allegations 
contained therein.
    Time consumed in taking testimony.--On February 21, 1923, the 
contestant served on the contestee notice to take testimony, and on 
February 23, 1923, a preliminary hearing was held before a notary 
public of the State of New York. On March 1, 1923, the actual taking of 
testimony was begun by contestant and was adjourned (after the 
examination of two witnesses) until March 5, 1923, when it was 
continued, with intermittent adjournments until April 24, 1923, and 
then adjourned by consent until a date to be later agreed upon.
    On July 24, 1923, after a lapse of three months, the hearings were 
resumed by the contestant, and after one witness was examined 
adjournment was had until July 30, 1923, and then till August 6, and 
August 13, 1923, without the examination of any witnesses until the 
last date. Hearings were conducted with intermittent delays until 
September 7, 1923 when successive adjournments were had until September 
19, 1923, and additional testimony was then taken.
    By successive adjournments testimony was taken on several days 
until November 30, 1923, and on December 21, 1923 a certificate from 
the notary was offered as evidence that taking of testimony for the 
contestant had been concluded.
    On December 20, 1923, contestee served notice of taking testimony 
and continued his taking of testimony with intermittent delays until 
March 1, 1924.
    The case was reported by the Clerk to the Speaker on June 3, 1924. 
The briefs were not served by the contesting parties until after the 
adjournment of Congress, the first filed on June 30 and the last on 
August 28, 1924.
    Stipulation of parties.--On March 1, 1923, parties entered into a 
stipulation as follows:

         It is stipulated by and between the parties hereto, 
     through their respective attorneys and counsel, that the time 
     limit as fixed by the rules of the House of Representatives 
     and the statutes of the United States governing contested 
     elections shall be deemed as directory and not mandatory, and 
     that either party may have more than the period of time 
     allotted and fixed therein within which to present his 
     respective case in this proceeding, and both sides waive 
     specifically any right to object that they may have under the 
     law with respect to the time so fixed. (Frank v. La Guardia, 
     Record, p. 7)

    Application for ballots.--A few days before the case came on for 
hearing, counsel for contestant made a request that subpoenas be issued 
to produce 82 ballots said by him to be in dispute between the parties. 
To this request the contestee replied that in that event he would ask 
for the ballots generally to be sent for. It appears that there had 
been an examination of the ballots by the parties in the case during 
the taking of the testimony. Attor

[[Page 1468]]

ney for contestee stated at the hearing that he had conceded certain 
ballots of the contestee to be void under the State law, but which 
under the ruling in the recent case of Ansorge v. Weller before 
Elections Committee No. 1, were held valid. This presented to the 
committee the prospects of an extensive recount of the ballots in this 
congressional district.

    Reasons for denial.--With the application your committee took into 
consideration these facts:
    The record is bare of any evidence or proof to sustain the general 
allegations of intimidation, fraud, or of other misconduct alleged in 
the notice of contest.
    Contestant's counsel by failing to stress at all these contentions 
in the argument conceded that such allegations could not be sustained.
    The record fails to reveal any real ground for contest other than 
the hope that a recount of the ballots might overturn the narrow 
majority of 168 by which the election of the contestee had been 
certified by the secretary of state.
    The record reveals the fact that the contestant had permitted the 
contest to drag along up to within a few months of the termination of 
the Congress to which he claimed election; that the recount, even if 
successful for the contestant, would still further reduce the value of 
it for him to the nominal distinction of having been declared elected, 
but of course he would get the substantial emoluments of salary and 
clerk hire for two years.
    But there is nothing in the record at all persuasive that a recount 
would change the result. The ballots said to be in dispute involve 
merely considerations of the kind of lead pencil used by voters, hair 
lines seen on the face of the ballots, and alleged erasures. There is 
no question involved of fraud or of other serious irregularities. 
Moreover, the people in this congressional district at the recent 
election had reelected contestee over contestant by a large majority.
    No cause was found in the record for the laches in taking 
testimony. At the hearings the attorney for contestant was pressed by 
members of the committee to give any reason whatever for such utter 
lack of diligence in the prosecution of the case. Counsel admitted that 
no reasons could be given other than that parties had amicably agreed 
by stipulation to waive all objections and that contestant relied on 
this agreement.
    Suggestion was further made by the attorney for the contestant that 
he relied on the stipulation in view of the feet that contestee's 
counsel was experienced in election cases and represented the sitting 
Member.
    The House and committees not boards of recount.--The committee 
concluded that even if it were willing to give its time in the closing 
days of the session to recount these ballots it would not be defensible 
to take up the time of the House to ask for authority to subpoena State 
officials to produce the ballots or to give any further consideration 
of this case. Your committee was strengthened in this conclusion by 
precedents directly in point. (Galvin v. O'Connell, 61st Cong., Moores, 
p. 39; Kline v. Myers, 38th Cong., Hinds, I, 723.) . . .

[[Page 1469]]

    Conclusion of law.--The controlling factors, however, in our minds 
in reaching the conclusion in this case, were the imperative necessity 
of safeguarding the printed rules unanimously approved by the three 
election committees, a special rule of the House recently adopted, the 
plain and explicit provisions of a law of Congress, and a long and 
unbroken line of House precedents.
    The rules of committees.--The rules of the election committees were 
carefully prepared and unanimously adopted by the three election 
committees.
    They were prepared specifically to expedite the determination of 
election cases. The contestant's attorney admitted that he had not 
brought himself within these rules.
    Special House rule.--A special rule of the House was adopted at the 
opening of the present Congress, as follows:

         The several elections committees of the House shall make 
     final report to the House in all contested-election cases not 
     later than six months from the first day of the first session 
     of the Congress to which the contestee is elected, except in 
     a contest from the Territory of Alaska, in which case the 
     time shall not exceed nine months. (Sec. 726-a, House 
     Manual.)

    The purpose of this rule was clearly stated by the chairman of the 
Committee on Rules when he presented it to the House for adoption. He 
said:

         Everyone is opposed to allowing contested election cases 
     to run along until the last day of the session, as is often 
     done, and we can see no good reason for doing so. . . . But 
     with that rule enforced, we thought we could hurry them up 
     and get better action from the election committees than we 
     have had in the past. (Cong. Record, vol. 65, pt. 2, 68th 
     Cong., p. 950.)

    The law.--The law governing the taking of evidence is as follows:

         Sec. 107. In all contested-election cases the time 
     allowed for taking testimony shall be 90 days, and the 
     testimony shall be taken in the following order: The 
     contestant shall take testimony during the first 40 days, the 
     returned Member during the second 40 days, and the contestant 
     may take testimony in rebuttal only during the remaining 10 
     days of said period. This shall be construed as requiring all 
     testimony in cases of contested elections to be taken within 
     90 days from the date on which the answer of the returned 
     Member is served upon the contestant . . .

    House precedents.--The precedents of the House have recently been 
very specific and direct in holding that parties guilty of laches would 
have no standing before the House unless sufficient cause was disclosed 
for delay. Recent cases directly in point are Gartenstein v. Sabath; 
Parillo v. Kunz; and Golombiewski v. Rainey, all of the Sixty-seventh 
Congress.
    A stipulation by parties in the nature of an agreement can not 
waive the plain provision of the statutes. . . .

[[Page 1470]]

                            proper procedure

    The proper procedure, if parties require further time has been 
plainly indicated as follows:

         If either party to a case of contested election should 
     desire further time and Congress should not then be in 
     session, he should give notice to the opposite party of a 
     procedure to take testimony and preserve the same and ask 
     that it be received, and upon good reason being shown, it 
     doubtless would be allowed. (Vallandigham v. Campbell, 35th 
     Cong., 1 Hinds, Prec. 726; O'Hara v. Kitchin, 1 Ellis 378.)

    It is to be noted that Congress was in session from December 3, 
1922, to June 7, 1924, but parties did not ask the consent of Congress 
either to extend the time or to validate the stipulation, even in the 
face of a special rule of the House that cases must be disposed of 
within six months after the opening of the Congress.

                         not mandatory on house

    The law providing for the taking of evidence has been held to be 
not binding upon the House. It has been correctly stated, ``That the 
House possesses all the power of a court having jurisdiction to try to 
the question who was elected. It is not even limited to the power of a 
court of law merely, but under the Constitution clearly possesses the 
functions of a court of equity also.'' (McKenzie v. Brackston, Smith's 
Election Cases, p. 19; Brooks v. Davis, 1 Bart. 44; Horton v. Butler, 
57th Cong.)

                           binding on parties

    The law, however, is binding upon the parties, as evidenced by the 
use of the mandatory word ``shall.'' The House alone, upon proper 
application, may grant a further extension of the time for taking 
evidence for cause shown as a matter of equity but not of right, or to 
protect the rights of the people of a district. The binding nature of 
the law has been well stated as follows:

         Although the acts of Congress in relation to taking 
     evidence in contested election cases are not absolutely 
     binding on the House of Representatives, yet they are to be 
     followed as a rule and not departed from except in 
     extraordinary cases. The contestant must take his testimony 
     under the statute, and in accordance with its provisions, 
     unless he can show that it was impracticable to do so, and 
     that injustice may be done unless the House will order an 
     investigation. (McCrary on Elections. sec. 449.)
         They constitute wholesome rules not to be departed from 
     without cause. (Williamson v. Sickles, 1 Bart. 288.)
         Parties should be held to rigid rule of diligence under 
     it, and no extension ought to be allowed where there is 
     reason to believe that had the applicant brought himself 
     within such rules there

[[Page 1471]]

     would have been no occasion for application. (Boles v. 
     Edwards, Smith's Contested Election Cases, p. 19.)

    In the case of Ansorge v. Weller, John W. Davis correctly stated 
the holding of election committees in the following colloquy:

         Mr. Major. This provision, Mr. Davis, that determines the 
     time when the contestant must take his evidence, do you 
     regard that as a mandatory provision?
         Mr. Davis. I regard that as mandatory; yes, sir. It has 
     been so held over and over again. Now, there is relief from 
     it. The House, of course, can extend the time upon showing by 
     the contestant, but it has been over and over again held that 
     that being statutory it must be strictly pursued. (Ansorge v. 
     Weller, 68th Cong., p. 55. See also Williamson v. Sickles, 
     36th Cong., 1 Hinds Prec., 597-598; Boles v. Edwards, 42d 
     Cong., 1 Hinds Prec., 789.)

               on application extension at times granted

    As the House has plenary power, it has frequently granted an 
extension of time upon application when a worthy cause has been shown 
and the laches has not been excessive or the failure to follow some 
requirement of the law has been trivial or technical. (Kline v. Verree, 
37th Cong.; Boyd v. Kelso, 39th Cong.; Delano v. Morgan, 40th Cong.; 
Van Wyck v. Greene, 41st Cong.; Bowen v. De Large, 42d Cong.; Niblack 
v. Walls, 42d Cong.; Hopkins v. Kendall, 54th Cong.; Archer v. Allen, 
34th Cong.; McCabe v. Orth, 46th Cong.; Page v. Pirce, 49th Cong.)

                 house has frequently refused extension

    The House has frequently refused to grant extension of time where 
there was no satisfactory reason assigned or where the laches had been 
unwarranted. (O'Hara v. Kitchin, 46th Cong.; Howard v. Cooper, 36th 
Cong.; Gallegos v. Perea, 38th Cong.; Giddings v. Clarke, 42d Cong.; 
Boles v. Edwards, 42 Cong.; Thomas v. Davis, 43d Cong.; Mabson v. 
Oates, 47th Cong.; Thobe v. Carlisle, 50th Cong.; Hoge v. Otey, 54th 
Cong.; Hudson v. McAleer, 55th Cong.; Horton v. Butler, 57th Cong.)

                          rights of contestee

    While the contestee's attorney joined in the stipulation to waive 
the requirements of the law, indeed, himself dictated it and was 
afterwards guilty of a breach of legal ethics when he raised the point 
of lack of diligence, nevertheless, it is incumbent upon the contestant 
to prosecute his case speedily. The contestee holds the certificate of 
election. His title can only be overturned upon satisfactory evidence 
that he was not elected. His seat in this body can not be jeopardized 
by the faults of others. It has been held that the House itself must do 
justice.

[[Page 1472]]

         ``The House has no right unnecessarily to make the title 
     of a Representative to his seat depend upon the acts, 
     omissions, diligence, or laches of others.'' (Payne on 
     Elections, sec. 1012.)

                         resolution recommended

    Following the precedent in the case of Reynolds v. Butler (see 
Hinds Prec., vol. 1, sec. 685), in which the duty of contestant to 
comply with the explicit provisions of the law was discussed, which 
report was sustained by the House, your committee respectfully 
recommends the adoption of the following resolution:

         Resolved, That the Committee on Elections No. 2 shall be, 
     and is hereby, discharged from further consideration of the 
     contested-election case of Henry Frank v. Fiorello H. 
     LaGuardia from the twentieth congressional district of New 
     York.

    The following additional concurring news were submitted by Mr. John 
L. Cable, of Ohio:

    It can not be said that contestant's claim was not just, for the 
committee did not go into the merits of the case. The official count 
gave contestee a plurality of but 168 over contestant. This number by 
consent of contestee's counsel has been considerably reduced and it can 
not now be properly said that if the committee should have gone into 
the merits of those few remaining contested ballots the contestant 
would not have received the highest number of lawful votes for the 
office.
    There is no alternative, however, because of the violation and 
disregard of the rules of this Congress and the laws of the United 
States, than to adopt the resolution asking that the committee be 
discharged from further consideration of the case.

    Privileged resolution (H. Res. 425) was agreed to by voice vote 
without debate [66 Cong. Rec. 2940, 68th Cong. 2d Sess., Feb. 3, 1925; 
H. Jour. 191].


                 Sec. 5. Sixty-ninth Congress, 1925-27

Sec. 5.1 Brown v Green, 2d Congressional District of Florida.

    Abatement of contest, withdrawal of contestant. Report for 
contestee, who retained seat.
    Report of Committee on Elections No. 3 submitted by Mr. Charles L. 
Gifford, of Massachusetts, on Feb. 24, 1926, follows:

[[Page 1473]]

                             Report No. 359

                 Contested Election Case, Brown v Green

    The Committee on Elections No. 3, which has had under consideration 
the contested-election ease of H. O. Brown v. Robert A. Green, from the 
second district of Florida, reports as follows:
    The contestant having withdrawn from the contest by a letter duly 
subscribed and sworn to before a notary public, we submit the following 
resolution for adoption:

         Resolved, That Hon. Robert A. Green was duly elected a 
     Representative from the second congressional district of 
     Florida to the Sixty-ninth Congress and is entitled to his 
     seat.

    Privileged resolution (H. Res. 170) agreed to by voice vote without 
debate [67 Cong. Rec. 5471, 69th Cong. 1st Sess., Mar. 12, 1926; H. 
Jour. 371, 372].

Sec. 5.2  Sirovich v Perlman, 14th Congressional District of New York.

    Ballots.--An elections committee refused to conduct a partial 
recount of ballots remaining in dispute after a complete recount by the 
parties, where the parties stipulated that the election result would 
not be changed.
    Evidence.--Contestant failed to offer sufficient proof of fraud and 
conspiracy to defraud by contestee and election officials.
    Evidence.--Contestant's application for reopening of contest to 
take further testimony was denied where delay was not justified.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 1 submitted by Mr. Don B. 
Colton, of Utah, on Apr. 12, 1926, follows:

                             Report No. 858

              Contested Election Case, Sirovich v Perlman

    At the election held in the fourteenth congressional district in 
the State of New York on November 4, 1924, according to the official 
returns Nathan D. Perlman, the contestee, who was the Republican 
candidate, received 12,046 votes and William I. Sirovich, the 
contestant, who was the Democratic candidate, received 11,920 votes, 
thereby giving the contestee a plurality of 126 votes.
    Mr. Nathan D. Perlman, the contestee, was declared elected by a 
plurality of 126 votes over his Democratic opponent, William I. 
Sirovich, and a certificate of election was duly issued to him by the 
secretary of the State of New York.
    On December 30, 1924, the contestant, in accordance with law, 
served on the contestee a notice of contest, a copy of which notice and 
attached petition

[[Page 1474]]

was in due course filed with the Clerk of the House of Representatives 
and in which notice and petition were set forth numerous grounds of 
contest, which may be summarized as follows:
    That the State Board of Canvassers of New York and the board of 
elections of the city of New York, in their canvass and return of the 
votes cast at said election, had erred in declaring Nathan D. Perlman, 
the contestee herein, elected, and in issuing to him a certificate of 
election based upon said canvass and return.
    That if contestee did receive an alleged majority of votes it was 
because of the frauds practiced by said contestee on the electorate on 
the day of election and prior thereto, and as a result of a conspiracy 
on the part of contestee to commit a fraud, which was carried out, upon 
the electorate on the day of election.
    That the contestee entered into a conspiracy with one George Rosken 
and one Abe Lewis to falsify the tally sheets in the twentieth and in 
the twenty-third election districts.
    To said notice and petition the contestee filed his answer setting 
forth that the notice of the contestant was insufficient in that it 
contained no statement of facts or proof whatsoever to raise any 
presumption of irregularity or fraud in the original count or canvass.
    The contestee denied each and every allegation of contestant 
relating to fraud or irregularity.
    Pursuant to the above notice and petition and answer the contestant 
and contestee or their counsel conducted a recount of all the ballots 
cast for congressional candidates in the fourteenth congressional 
district of New York at said election. They passed on all of the 
ballots except 188, which were termed disputed.
    These 188 disputed ballots, a copy of the indictment of one George 
Rosken, the tally sheets and a ring similar to that alleged to have 
been used by Rosken for marking ballots and other exhibits were 
subpoenaed from New York and examined by the committee.
    Upon permission of the committee, Mr. Stump and Mr. Gilbert, 
attorneys for the contestant and contestee, respectively, were allowed 
to pass upon the disputed ballots, and they agreed that 139 were not to 
be counted; the remainder were disputed.
    The committee was not called upon to determine whether these 
disputed ballots were bona fide votes. It was admitted at the close of 
the count that contestee had a majority of the votes cast. They were 
used merely as exhibits in the argument to show fraud and conspiracy.
    During the proceedings counsel for contestant made application for 
the reopening of the case to take further testimony.
    Full and complete hearings were had by the committee, after which, 
in executive session, the committee carefully considered the entire 
case. The committee found that the contestant had not used due 
diligence in securing the proper evidence at the time of making his 
ease in chief and therefore did not feel justified in asking the House 
for authority to reopen the case.

[[Page 1475]]

    Your committee therefore finds after a careful analysis of the 
testimony and argument, and in conformity with a long line of 
congressional precedents, that the proof presented before the committee 
by the contestant did not sustain the charges made against the 
contestee by the contestant.
    This is made as a committee report, but Messrs. Hudspeth, Eslick, 
and Chapman, members of the minority party, declined to vote on the 
resolutions and also refrained from submitting minority views.
    Your committee therefore recommends to the House of Representatives 
the adoption of the following resolutions:

         Resolved, That William I. Sirovich was not elected a 
     Representative from the fourteenth congressional district of 
     the State of New York and is not entitled to a seat herein.
         Resolved, That Nathan D. Perlman was duly elected a 
     Representative from the fourteenth district of the State of 
     New York and is entitled to retain a seat herein.

    Privileged resolution (H. Res. 220) was agreed to by voice vote 
after debate [67 Cong. Rec. 7533, 69th Cong. 1st Sess., Apr. 15, 1926; 
H. Jour. 507].

Sec. 5.3 Clark  Edwards, 1st Congressional District of Georgia.

    Ballots.--Contestant's allegations of improper arrangement and 
printing of party designations were not sustained.
    Evidence.--Contestant failed to offer sufficient proof of fraud and 
conspiracy to defraud by election officials.
    Pleadings.--Failure of contestant to file a brief was presumed a 
withdrawal of the contest.
    Expenses of contest were denied to contestant by an elections 
committee.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 2 submitted by Mr. Bird J. 
Vincent, of Michigan, on June 10, 1926, follows:

                            Report No. 1449

                Contested Election Case, Clark v Edwards

                         statement of the case

    At the election held in the first congressional district of the 
State of Georgia on the 4th day of November, 1924, according to the 
official returns, Charles G. Edwards, the contestee, who was the 
Democratic candidate, received 14,694 votes; Herbert G. Aarons, the 
Republican candidate, received 627 votes; and Don H. Clark, the 
contestant herein, who made the claim that he was the Republican 
candidate, received 448 votes. As a result of these returns Charles G. 
Edwards, the contestee, was declared elected, and a certificate of 
election was duly issued to him by the proper State officials.

[[Page 1476]]

    The contestant, Don H. Clark, thereafter filed a notice of contest 
before the House of Representatives in which he charged that he was the 
duly nominated Republican candidate, but that his name was placed upon 
ballots in the various counties of the district under such headings as 
``Independent Party`` or ``Independent Republican Party.''
    The committee finds as to this that Herbert G. Aarons was the 
regularly nominated Republican candidate and that the contestant was 
not. It seems to the committee that in securing the placing of his name 
upon the ballots under the party designations used contestant was 
accorded at least all that he was entitled to.
    The contestant charges further that the entire election was 
illegal, false, and fraudulent because of the existence of a political 
oligarchy and general conspiracy throughout the district.
    As to this the committee finds no testimony worthy of credence to 
sustain such charge.
    The contestant further charges the public officials of the 
congressional district with skillfully, flagrantly, and criminally 
violating the provisions of the Neil Act, which is a late election law 
of Georgia.
    The committee finds this charge not to be sustained by the 
evidence.
    The contestant in bombastic and reckless language makes other 
charges of crime, fraud, deceit, and conspiracy in the district, none 
of which charges the committee finds to have been supported by 
evidence.
    In an endeavor to support his contest the contestant took testimony 
throughout the district, which testimony has, with some exceptions, 
been returned to the House of Representatives and delivered to this 
committee in the form of a record. Although notified by the Clerk of 
the House of Representatives in due time as to the requirement of the 
rules of the House and the law governing contests, as to when he should 
file his brief, the contestant has not filed any brief up to this time, 
and has taken no action in the further prosecution of his case since 
the settlement of the record. As the time has long gone by in which he 
is permitted to file a brief, the committee assumes that he has 
abandoned his contest. Whether this be true or not, however, the 
committee finds that there is absolutely no merit in his contest.
    It is proper to state that this same contestant filed a contest in 
the Sixty-eighth Congress against Hon. R. Lee Moore, who was then the 
Representative from said district, under almost identical circumstances 
with the present contest. At that time in the election held November 7, 
1922, Mr. Moore received 5,579 votes, P. M. Anderson received 426 
votes, and Don H. Clark received 196 votes. Mr. Clark contested Mr. 
Moore's election. That contest was heard by the Committee on Elections 
No. 2 of the House of Representatives. There are five members of the 
Committee on Elections No. 2 in the Sixty-ninth Congress who were 
members of that committee in the Sixty-eighth Congress, and who heard 
the contest proceedings of Clark v. Moore. The following is quoted from 
the report of the committee at that time:

[[Page 1477]]

         The above quotations are typical of the nature of the 
     contestant's brief in this case, and your committee is of the 
     opinion that such loose, extravagant, and unfounded charges 
     being made the basis for an election contest with the 
     consequent expense to the Government should be discouraged in 
     the future.

    The Committee on Elections No. 2 in the present case not only finds 
that the present contest is not grounded in any merit, but also finds 
that the contestant is not acting with bona fides in bringing it; and 
it desires to announce to the House of Representatives that, unless 
otherwise directed by the House, it will decline to authorize the 
payment by the Government to the contestant in this case of any expense 
incurred by him in bringing the present contest.

                         summary and conclusion

    The committee finds that the contestant has failed to prove his 
allegations; that there is no evidence warranting the rejection of the 
votes of any of the precincts of the district; and that the contestee, 
Charles G. Edwards, was duly and legally elected a Member of the House 
of Representatives from the first district of Georgia. For the above 
reasons the committee recommends the adoption of the following 
resolutions:

         Resolved, That Don H. Clark was not elected a Member of 
     the House of Representatives in the Sixty-ninth Congress from 
     the first congressional district of the State of Georgia, and 
     is not entitled to a seat herein.
         Resolved, That Charles G. Edwards was duly elected a 
     Member of the House of Representatives in the Sixty-ninth 
     Congress from the first congressional district of the State 
     of Georgia, and is entitled to retain his seat herein.

    Privileged resolution (H. Res. 296) agreed to by voice vote without 
debate [67 Cong. Rec. 11312, 69th Cong. 1st Sess., June 15, 1926; H. 
Jour. 778, 779].

Sec. 5.4 Bailey v Walters, 20th Congressional District of Pennsylvania.

    Ballots.--Partial recounts were (a) initiated and then denied by a 
local election board for lack of authority under state law, (b) 
conducted by an official appointed by the parties to take testimony, 
and (c) then conducted by an elections committee upon adoption by the 
House of a resolution authorizing subpoena of election officials and 
disputed ballots.
    Ballots.--An elections committee refused to order a complete 
recount where contestant offered insufficient evidence to overcome the 
presumption of correctness of official returns in undisputed precincts.

[[Page 1478]]

    Minority views for contestant and sustaining authority of local 
board to conduct recount.
    On May 18, 1926, Mr. Bird J. Vincent, of Michigan, submitted the 
following resolution as a question of privilege:

    Resolved, That Logan M. Keller, sheriff of Cambria County, State of 
Pennsylvania, or his deputy, be, and he is hereby, ordered to appear by 
himself or his deputy, before Elections Committee No. 2, of the House 
of Representatives forthwith, then and there to testify before said 
committee in the contested-election case of Warren Worth Bailey, 
contestant, against Anderson H. Walters, contestee, now pending before 
said committee for investigation and report and that said sheriff or 
his deputy bring with him all the ballots cast in the sixteenth ward of 
the city of Johnstown, Pa., and in Westmont Borough No. 2, of Cambria 
County, Pa., at the general election held in the twentieth 
congressional district of the State of Pennsylvania on November 4, 
1924. That said ballots be brought to be examined and counted by and 
under the authority of said Committee on Elections in said case, and to 
that end that the proper subpoena be issued to the Sergeant at Arms of 
this House, commanding him to summon said sheriff, or his deputy, to 
appear with such ballots as a witness in said case, and that the 
expense of said witness, and all other expenses under this resolution, 
shall be paid out of the contingent fund of the House; and that the 
aforesaid expense be paid on the requisition of the chairman of said 
committee after the auditing and allowance thereof by said Committee on 
Elections No. 2.
    When said resolution was considered and agreed to.

    Privileged resolution (H. Res. 270) was agreed to by voice vote 
without debate [67 Cong. Rec. 9646, 69th Cong. 1st Sess., May 18, 1926; 
H. Jour. 670, 671].
    Report of Committee on Elections No. 2 submitted by Mr. Bird J. 
Vincent, of Michigan, on June 10, 1926, follows:

                            Report No. 1450

               Contested Election Case, Bailey v Walters

                         statement of the case

    At the general election held in the twentieth congressional 
district of the State of Pennsylvania on November 4, 1924, which 
district is composed of the single county of Cambria in said State, the 
contestee, who was the candidate for Representative in Congress of the 
Republican, the Progressive, and the Prohibition Parties, according to 
the official returns received 23,519 votes; and Warren Worth Bailey, 
the contestant, who was the candidate of the Democratic, Socialist, and 
Labor Parties, according to the official returns, received 23,456 
votes. Thus according to the official returns the contestee had a clear 
majority of 63 votes, and it was upon this majority so found that the 
certificate of election was issued to the contestee and he was seated 
in the House of Representatives.

[[Page 1479]]

    In view of proceedings which were taken immediately after the 
election it is proper at this point to state that the act of Assembly 
of the Commonwealth of Pennsylvania approved May 19, 1923, provides as 
follows:

         And in case the returns of any election district shall be 
     missing when the returns are presented, or in case of 
     complaint of a qualified elector, under oath, charging 
     palpable fraud or mistake, and particularly specifying the 
     alleged fraud or mistake, or where fraud or mistake is 
     apparent on the return, the court shall examine the return; 
     and if in the judgment of the court it shall be necessary to 
     a just return, said court shall issue summary process against 
     the election officers and overseers, if any, of the election 
     district complained of, to bring them forthwith into court, 
     with all election papers in their possession; and if palpable 
     mistake or fraud shall be discovered, it shall, upon such 
     hearing as may be deemed necessary to enlighten the court, be 
     corrected by the court and so certified; but all allegations 
     of palpable fraud or mistake shall be decided by the said 
     court within three days after the day the returns are brought 
     into court for computation; and the said inquiry shall be 
     directed only to palpable fraud or mistake and shall not be 
     deemed a judicial adjudication to conclude any contest now or 
     hereafter to be provided by law; and the other of said 
     triplicate returns shall be placed in the box and sealed up 
     with the ballots.

    . . . The board proceeded to examine witnesses and to recount 
ballots in these precincts, and through its clerks had the results of 
such recounts taken down but had not yet reached the point where the 
results of such recounts had become the official act of said board when 
the contestee, Mr. Walters, through his counsel, presented a petition 
that the returns of the various precincts should be canvassed in 
accordance with their face and the certificate of election should be 
determined to be issuable to him because of his majority of 63 votes on 
the face of the original returns, which petition was based upon the 
contention that in the case of a candidate for Representative in 
Congress the Constitution reposes in the House of Representatives the 
determination of the qualifications, elections and returns of its own 
members, and that therefore this board did not have the authority to go 
back of the original returns and recount boxes. At the time this 
petition was presented it appears that so far as such recount had then 
gone Mr. Bailey, the contestant, would have had at that time, as the 
count then stood, a majority of 14 votes. But, as said above, the 
recount in these precincts, as made by the board, never became an 
official act.

    The two judges who constituted the computation board granted a 
hearing on the petition of the contestee, Mr. Walters, and were unable 
to agree, one holding that Mr. Walters was correct in his contention 
and the other holding the opposite. Thereupon, under the provision of 
the law of Pennsylvania, Hon. Thomas J. Baldrige, president judge of 
the court of common pleas of Blair County, Pa. (outside this 
congressional district), was assigned to sit with the two judges above 
named, and upon further hearing before the three

[[Page 1480]]

judges he held with the contention raised by Mr. Walters, and it was 
decided that the computation board was without authority to go beyond 
the face of the original returns in the various election precincts, 
and, therefore, it was held that the contestee, Mr. Walters, was 
entitled to receive the certificate of election. In this decision 
written by Judge Baldrige, Judge Evans concurred and Judge McCann 
dissented.
    Thereupon Mr. Bailey, the contestant, through his counsel, appealed 
from this order to the Supreme Court of Pennsylvania and the matter was 
argued before that court with six judges sitting. The opinion of that 
court in full is as follows:

         The judges who heard this case are equally divided in 
     opinion on the question as to whether or not the votes in the 
     ballot box of St. Michael district could legally be counted 
     by the computing board. When these ballots are counted Bailey 
     is entitled to the certificate of election, but when not, 
     Walters is entitled to receive it. The court being divided on 
     the question of the legal right to count the votes 
     considered, it follows that the order appealed from must 
     stand and the certificate issued to Anderson H. Walters. It 
     is so ordered.

    A petition for reargument was denied. Later Mr. Bailey, the 
contestant, through his counsel, applied for a writ of certiorari to 
the Supreme Court of the United States, but this also was denied. A 
certificate of election, in accordance with the holding of the Supreme 
Court of Pennsylvania, was issued to Mr. Walters, the contestee.
    Thereupon Mr. Bailey, the contestant, filed his notice of contest 
before the House of Representatives on the general ground that the 
certificate of election should have been issued to him, that he had 
actually received more votes in the district than his opponent, that in 
certain specified precincts of the district either by mistake or fraud 
he had not received credit for all of the votes actually east for him, 
and that his opponent had received credit through fraud or mistake for 
more votes in various specified precincts than were cast for him.
    To this notice of contest, the contestee duly made his answer 
denying most of the allegations of the contestant, and averring on his 
own behalf that through fraud or mistake more votes had been credited 
to the contestant, Mr. Bailey, in various precincts than were actually 
cast for him, and that through fraud or mistake contestee had failed to 
receive credit for many votes which were cast for him. He also alleged 
that many unnaturalized aliens had voted in the election for the 
contestant, Mr. Bailey, and, also, many persons had so voted who had 
not the right of franchise because they were not duly registered voters 
in the precincts where they voted.
    After filing the necessary documents in the congressional contest 
the parties in the contest proceeded in their turn to take testimony 
before commissioners with respect to alleged mistakes, frauds, and 
irregularities in a number of specified precincts, and conducted before 
such commissioners recounts of the ballots in a number of the ballot 
boxes. As a result of such testimony and recounts it is conceded that 
the recounts made showed . . . gains for

[[Page 1481]]

the contestee, Mr. Walters, of 36 votes. Three other precincts, 
recounted, resulted in no change.
    It is proper to say at this point that as a part of his proceedings 
in the congressional contest Mr. Bailey, the contestant, petitioned the 
committee for a recount of all the votes in all the precincts of the 
congressional district.
    Outside of the conceded changes as set forth above there was 
presented to the Committee on Elections No. 2 disputed questions of law 
and fact involving the following:
    1. The question of a general recount of all the ballots in the 
congressional district.
    2. The question of 16 votes claimed by Mr. Bailey, the contestee, 
in the sixteenth ward of Johnstown city.
    3. The question of 40 votes claimed by Mr. Bailey, the contestee, 
in St. Michaels district.
    4. The question of a number of votes claimed by Mr. Walters, the 
contestee, in Westmont Borough, No. 2, which were claimed to have been 
changed by marking after they had left the hands of the voter.
    5. The question of votes claimed by Mr. Walters to have been cast 
to his injury by unnaturalized aliens.
    6. The question of unregistered voters claimed by Mr. Walters to 
have been allowed to vote at said election, to his injury.

                      conclusions of the committee

    1. As to the petition for a general recount. It seems to be in 
accordance with a long line of precedents in Congress that in order to 
secure a recount, before an elections committee, that tangible evidence 
must first be produced tending to show that such recount will probably 
change the result of the original returns from such ballot boxes; and 
that in the absence of such tangible evidence or testimony recounts 
will be refused. It will be noted that in the case of 19 precincts 
where tangible evidence was produced that recounts were had before the 
commissioners, and later on in this report it will appear that in the 
matter of 2 other precincts, Westmont Borough, No. 2, and the 16th Ward 
of Johnstown City, where tangible testimony was taken and presented to 
this committee, that recounts were had before the committee itself. But 
no testimony nor proof casting suspicion upon any ballot boxes in the 
district, nor the returns from them, was produced except as to the 21 
ballot boxes which have been recounted. In the election contest of 
Ansorge v. Weller, in the Sixty-eighth Congress, Hon. John W. Davis, 
who appeared as counsel for one of the parties. stated his conclusion 
as to the law on this subject in the following words, which this 
committee thinks is a correct statement of the law as shown by the 
precedents of Congress:

         It has been said again and again by the House, by the 
     court, by every tribunal that has this duty of passing upon a 
     contested election that the returns which are made by the 
     inspectors, regularly appointed by the laws of the State 
     where the election is held, are presumed to be correct until 
     they are impeached by

[[Page 1482]]

     proof of irregularity and fraud, and that the House will not 
     erect itself, nor will it erect its committees as mere boards 
     of recount. It is conceived that when the statutes of the 
     State have set up these bipartisan boards and made due and 
     proper provision for their selection, that it is, as a matter 
     of public policy, wise and right that their conclusions shall 
     be accepted by the parties to the election, by the public, 
     and by any board charged with the duty of passing on the 
     result, until such time as such irregularities and frauds are 
     proved as to raise a fair presumption that their duties were 
     not honestly performed.

    The committee, therefore, has concluded that there is no just cause 
shown for a general recount of the votes in the district outside of the 
21 precincts around which testimony has centered.
    2. The matter of the sixteenth ward of Johnstown city. With respect 
to the ballot boxes and votes in this ward, it should be said that a 
petition was filed before the proper court to impound the ballots from 
certain precincts, including this one, which petition was granted by 
the court, and it appears from the testimony in the record in this case 
that when the ballots were being transferred from the ballot boxes to 
the package for the purpose of impounding that the ballots were handled 
separately, and the witness who was present testified that he made 
account in this informal way which showed a net gain for Mr. Bailey, 
the contestant, of 16 votes over the original face of the returns. In 
this precinct the original returns were as follows: Walters 19, Bailey 
535.
    The committee ordered a recount of the votes in this precinct and 
secured an order of the House of Representatives to have the ballots 
brought before it and did recount the votes, and found the contestant's 
position was sustained, the recount showing the following result: 
Walters 20, Bailey 552, or a net gain of 16 for the contestant.

    The following minority views were submitted by Mr. Gordon Browning, 
of Tennessee; Mr. T. Webber Wilson, of Mississippi; and Mr. John J. 
Douglass, of Massachusetts:

    The minority members of the committee have not made a separate 
report in this case for the reason that they feel the report is correct 
in its effect under the present state of the record, though we believe 
the result would be different if the committee could have justified 
itself in a recount of all the votes of the district.
    The precedents of the House seem to hold that some evidence of 
fraud or mistake should be produced as to each box to be opened before 
such action is taken. This was not done. And in this case sufficient 
proof was lacking to show the boxes were kept intact and in the proper 
custody for several months intervening between the election and the 
impounding of the ballots.
    The latter condition is due largely no doubt to the loose 
provisions of the election laws in the State of Pennsylvania as to the 
disposition and custody of the ballot boxes after elections. There 
seems to be no arrangement for their security and the provisions 
applying to same are merely directory.

[[Page 1483]]

    Of the comparatively few boxes recounted the contestant showed a 
consistent gain. This no doubt was due largely to the newness of the 
provisions in their election laws in Pennsylvania governing the 
counting of split ballots. Most of the split ballots in the district 
were cast for Mr. Bailey and as a result he ran far ahead of all his 
tickets. We believe from the record and the result that in many 
instances those holding the election were in error as to his right to 
receive these split ballots where he was voted for on otherwise 
Republican ballots.
    There is another phase of the contest the minority members of the 
committee feel should be passed upon by the committee, since it 
involves a vital principle of Constitutional rights. There is a 
provision in section 17 of the acts of Assembly of the Commonwealth of 
Pennsylvania, approved May 19, 1923, P.L. 267, as follows:

         (1) And in case the returns on any election district 
     shall be missing when the returns are presented, or in case 
     of complaint of a qualified elector, under oath, charging 
     palpable fraud or mistake, and particularly specifying the 
     alleged fraud or mistake, or where fraud or mistake is 
     apparent on the return, the court shall examine the return, 
     and, if in the judgment of the court it shall be necessary to 
     a just return, said court shall issue summary process against 
     the election officers, and overseers, if any, of the election 
     district complained of, to bring them forthwith into court, 
     with all election papers in their possession; and if palpable 
     mistake or fraud shall be discovered, it shall, upon such 
     hearings as may be deemed necessary to enlighten the court, 
     be corrected by the court, and so certified; but all 
     allegations of palpable fraud or mistake shall be decided by 
     the said court within three days after the day the returns 
     are brought into the court for computation; and the said 
     inquiry shall be directed only to palpable fraud or mistake, 
     and shall not be deemed a judicial adjudication to conclude 
     any contest now or hereafter to be provided by law; and the 
     other of said triplicate returns shall be placed in the box 
     and sealed up with the ballots.

    Pursuant to this provision both parties to this contest had the 
ballots in some of the boxes recounted, with the result that instead of 
Walters having a majority of 63 Bailey was shown to have a majority of 
14, and under the count of the computing board was clearly entitled to 
the certificate of election. Before this result was announced and 
certificate issued to Bailey the contestee filed his petition with the 
court, which court was also the computing board, averring that the 
recount was beyond the jurisdiction of the computation court and that 
said court had no supervisory power to examine what preceded the 
election returns in so far as the election of a Representative in 
Congress was concerned. A rule was granted on this petition and later 
made absolute.
    The effect of this holding was to say that no State has a right to 
go back of the returns in the election of a Federal officer, regardless 
of the provisions of the laws of that State. We insist such a holding 
is wrong and should be

[[Page 1484]]

repudiated by the House. Otherwise the burden of contest can easily be 
unjustly thrown upon a candidate who should not bear it, as in our 
opinion was done in this case.
    Unquestionably the Federal Government has the right to regulate 
Federal elections if it sees fit to do so. However, it is not the mere 
existence of a power in the Federal Government but the exercise of that 
power which is incompatible with the exercise of the same power by the 
States.
    It has been repeatedly held by the House of Representatives that 
statutes by States conferring power on computing boards to go behind 
the returns are constitutional. (Giddings v. Clark, 42d Cong.; Norris 
v. Hadley, 42d Cong.; Smith v. Jackson, Rowell, 9; also see McCray, 
art. 266.) Several State supreme courts have sustained this position. 
In Norris v. Hadley the Alabama statutes empowered a ``board of 
supervisors of elections'' to hear proof upon charges of fraud, etc., 
and upon sufficient evidence to reject unlawful and fraudulent votes 
cast. The committee said:

         It is believed by the committee that the action of such a 
     board under the statute in question, and in pursuance of the 
     power conferred thereby, is to be regarded as prima facie 
     correct, and to be allowed to stand as valid until shown by 
     evidence to be illegal or unjust.

    In 1870 the first statute embodying a comprehensive system for 
dealing with congressional elections was enacted by Congress. After 24 
years of experience practically every law relating to this subject was 
repealed and Congress returned to its former attitude of entrusting the 
conduct of all elections to the State laws, administered by State 
officials. This matter was covered fully in the opinion by Mr. Justice 
Clarke in United States v. Gradwell (243 U.S. 481-5, October term, 
1916).
    The opinion of the Supreme Court of Pennsylvania set out in full in 
the report in this case, although indicating this position, yet does 
not pass on what we think is a vital matter of principle and one 
fundamental to the rights of States to regulate elections.

    Ballot boxes.--Election officials' noncompliance with state law 
regulating custody after election was held not to void a recount of 
enclosed ballots where law was held directory and where extrinsic 
evidence overcame a presumption of tampering.
    Ballots, fraudulently marked by someone other than the voters, were 
examined and recounted by an elections committee.
    The majority report continued:

    3. The matter of St. Michaels district in Adams Township. As 
briefly as may be told the situation in this district was as follows: 
The law required the election officials at the conclusion of their work 
on election night to take the ballot box, after it had been closed and 
sealed in accordance with law, to the nearest justice of the peace to 
remain in his custody. The election was held in a schoolhouse and after 
the conclusion of the work of the election officials, they placed the 
ballot box in a room in the schoolhouse on a pile

[[Page 1485]]

of old desks and left it in custody of no one. When the returns were 
published the next day all of the election officials in this precinct 
except one agreed that there was a mistake in the announced vote of 
Representative in Congress and petitioned the computation board for a 
correction of the error. They claimed that 40 votes which should have 
been included for Mr. Bailey in the tabulation, which were cast for him 
on the Labor and Socialist tickets must have been omitted. Two or three 
days after the election the judge of elections became alarmed at the 
talk which was going around concerning this vote, and he and his wife 
in the evening drove down to the schoolhouse and went in and got the 
box and took it to the nearest justice of the peace. When the 
computation board ordered the sheriff to bring in the box, he found it 
in the home of this justice and also found that the cover had a crease 
or dint in it, so that there was an opening between the cover and the 
top edge of the box into which one might slip the fingers of his hand. 
When the box was brought before the board the tape was found to be 
broken and the seals broken. However, the 40 votes claimed for Mr. 
Bailey were found to be in the box, the unused ballots still attached 
to the stubs were in the bottom of the box, and by checking it appeared 
that all of the ballots then in the box could be accounted for. All of 
these facts were made to appear by testimony before the commissioner in 
the congressional contest and were returned to the House of 
Representatives in the record in this case. It is conceded that the box 
was not kept in proper custody according to law. It is conceded too 
that its condition laid it open to suspicion. There is testimony, 
however, that the condition of the cover of the box had been the same 
for several prior elections and that the election precinct officials 
had requested a new box of the proper authorities which had not been 
furnished. After most carefully reviewing all of the testimony in the 
case and in view of the fact that the law of Pennsylvania with regard 
to the custody of the box is held to be directory and not mandatory, 
and that the testimony seems to account properly for the existence of 
all of the ballots, the committee finds as a matter of fact that these 
ballots were cast for Mr. Bailey, the contestant, as claimed by him, 
and awards him a net gain in that precinct of 40 votes, the original 
count being, Walters 104, Bailey 63; the recount being, Walters 102, 
Bailey 101.
    4. The matter of Westmont Borough, No. 2. When this box was brought 
before the computation board the two judges noticed that some of the 
ballots were marked for Mr. Bailey by a peculiarly shaped cross 
differing from the other crosses made by the voter on the same ballot, 
and the judges called each other's attention to it, but no attempt was 
made to correct the error or fraud nor to determine the extent of it at 
that time. It is conceded in the record, and it was conceded in the 
argument before the committee, that the ballots in this box were 
counted in accordance with the markings upon them, including these 
peculiarly shaped crosses. When the congressional contest was being 
held and testimony being taken before a commissioner, the ballots from 
this box were examined carefully by a handwriting expert, who found 
some 50 ballots which he testified had marks upon them opposite the 
name of Mr. Bailey consisting of peculiarly shaped crosses made by one 
stroke of the pencil, and that all of these peculiar crosses were made 
by the

[[Page 1486]]

same person and not by the person who made the other crosses on each of 
the ballots involved. In a number of instances among these 50 ballots 
it was testified that a cross had been made opposite Mr. Walters's name 
and erased and a cross placed opposite Mr. Bailey's name in those 
instances of this peculiar character. The attorneys admitted before the 
committee upon the hearing that in each of these instances the ballot 
had been credited to Mr. Bailey. Hence, if these peculiar crosses were 
placed on the ballot by someone other than the voter, Mr. Walters had 
suffered thereby to that extent in the count of the votes in this box. 
The committee was unwilling to act in this matter without the benefit 
of a personal inspection of these ballots and secured by resolution of 
the House the right to have all the ballots of Westmont Borough, No. 2, 
brought before the committee. Personal inspection of these ballots by 
the members of the committee has convinced the committee beyond doubt 
that these peculiarly shaped crosses were not made by the same person 
who voted the ballots. In the instance of one of the ballots the voter 
marked his crosses upon the ballot with blue pencil and the peculiarly 
shaped cross appears on that ballot, as on the others, in black pencil. 
Having become convinced that the allegations concerning the peculiar 
cross were true, the committee proceeded itself to recount the ballots 
cast in this precinct, with the following results: On the original 
count, the vote stood--Walters 208, Bailey 208; on the recount by the 
committee the vote stands--Walters 246, Bailey 170, or a net gain for 
the contestee, Mr. Walters, of 76 votes.

    Suffrage.--Ballots cast by women who lost their citizenship for 
marrying aliens prior to passage of the ``Cable Act'' were held void, 
based on a Supreme Court decision.
    Returns.--Were partially rejected by proportional deduction method 
where it was not determinable for whom void ballots were cast.
    Ballots.--Allegedly cast by unregistered voters were not voided, as 
the election result would not be affected and as evidence was 
inconclusive.
    Majority report for contestee, who retained his seat.

    5. The question of unnaturalized voters. The contestee, Mr. 
Walters, through his counsel, introduced testimony proving that a 
number of persons voted in the election who were not citizens. Many of 
these women who had married aliens prior to the passage of the Cable 
Act September 22, 1922, and who had not taken out naturalization papers 
to regain their citizenship. Other instances were shown of aliens 
voting who had never been citizens of the United States. A few of these 
persons when questioned before the commissioner testified as to the 
candidate for whom they voted for Representative in Congress, and a 
larger number stood upon their constitutional right and refused to 
answer the question respecting the candidate for whom they voted. In 
his presentation of the contestee's case before the committee the 
counsel for the contestee subtracted from the vote of Mr. Walters all 
such aliens who testified to having voted for him, and subtracted from 
the vote of Mr. Bailey the votes of all such persons who testified to 
having voted for

[[Page 1487]]

him. As to those aliens who voted and refused to state for whom they 
voted, the subtraction was made by reducing the vote of each candidate 
in the precincts where the illegal votes were shown to be cast in 
accordance with the pro rata share of the total vote obtained by each 
candidate in that particular precinct. It was conceded upon the hearing 
by the attorneys for the contestant that this was the proper method in 
accordance with the precedents of Congress for purging the returns from 
these precincts of these illegal votes, and the committee also finds 
upon examination that this method is the correct one. The only question 
raised upon the hearing by the contestant through his counsel was this: 
He claimed that an American-born woman who married a foreigner prior to 
the passage of the Cable Act but who continued to reside in this 
country did not lose her citizenship. He conceded that if it were found 
that the Supreme Court of the United States had held that she did lose 
her citizenship by such marriage that then the entire claim of the 
counsel of Mr. Walters, the contestee, and his method of purging the 
returns from these votes were correct. As a matter of fact the Supreme 
Court of the United States has so held. (MacKenzie v. Hare, 239 U.S. 
299.)
    Under the facts shown in the record and under the concessions made 
at the hearing the net gain to the contestee, Mr. Walters, because of 
these illegal votes by aliens is 21 votes, which the committee awards 
to Mr. Walters, the contestee.
    The question of unregistered voters: Proof was submitted by the 
contestee that 586 illegal votes were cast in the election because the 
voters who cast them were not registered in accordance with law and, 
therefore, had not the right of franchise under the mandatory laws of 
the State of Pennsylvania. If the proof of this allegation were held by 
the committee to be sufficiently made and the election purged of these 
votes in accordance with the rule thereupon fixed by the precedents in 
Congress, it would serve to increase the contestee's majority over the 
contestant by 262 additional votes. However, there is a division of 
opinion in the committee as to whether the method of proof is proper 
and sufficient, and since the determination of this question is not 
necessary to the decision in this case (contestee already having a 
majority of the votes) the committee refrains from expressing an 
opinion in connection with this matter.

                                summary

    Bringing the conceded gains of each party, as shown by the recounts 
before the commissioners, and the several findings which the committee 
has made, into tabular form, we have the following:

Majority for contestee on official returns.....................       63
His conceded net gains in recounts before commissioners........       36
His net gain in Westmont Borough No. 2.........................       76
His net gain by purging returns of votes cast by unnaturalized        21
 aliens........................................................
                                                                --------
                                                                     196
                                                                ========

[[Page 1488]]


Contestant's conceded net gains in recounts before                    89
 commissioners.................................................
His net gain in sixteenth ward of Johnstown city...............       16
His net gain in St. Michaels district..........................       40
                                                                --------
                                                                     145
                                                                ========
        Contestee's majority as determined by committee........       51
------------------------------------------------------------------------

    Therefore, the committee finds that the contestee received a 
majority of 51 of the legal votes cast for Representative in Congress 
at said election, and was duly and legally elected a Member of the 
House of Representatives from the twentieth district of the State of 
Pennsylvania. For the above reasons the committee recommends the 
adoption of the following resolutions:

         Resolved, That Warren Worth Bailey was not elected a 
     Member of the House of Representatives in the Sixty-ninth 
     Congress from the twentieth congressional district of the 
     State of Pennsylvania and is not entitled to a seat herein.
         Resolved, That Anderson H. Walters was duly elected a 
     Member of the House of Representatives in the Sixty-ninth 
     Congress from the twentieth congressional district of the 
     State of Pennsylvania and is entitled to retain his seat 
     herein.

    Privileged resolution (H. Res. 295) agreed to by voice vote after 
debate [67 Cong. Rec. 11307-12, 69th Cong. 1st Sess., June 15, 1926; H. 
Jour. 778].


                  Sec. 6. Seventieth Congress, 1927-29

Sec. 6.1 Wefald v Selvig, 9th Congressional District of Minnesota.


                      Committee on Elections No. 2

    Abatement of contest since contestant neglected to take testimony 
within the legal time.

    No committee report, and no House disposition.
    On Dec. 14, 1927, the Speaker laid before the House the following 
communication from the Clerk of the House:

    Sir: I have the honor to inform the House that in the ninth 
congressional district of the State of Minnesota, at the election held 
on November 2, 1926, C. G. Selvig was certified as having been duly 
elected as a Representative in the Seventieth Congress, and his 
certificate of election in due form of law was filed in this office. 
His right to the seat was questioned by another candidate, Knud Wefald, 
who served notice on the returned Member of his purpose to contest the 
election. A copy of this notice, together with the reply of contestee, 
were filed in the office of the Clerk of the House, who also re

[[Page 1489]]

ceived the affidavit of contestee and of his counsel to the effect that 
no notice of taking depositions or of the introduction of proof of any 
kind was served upon contestee or upon his attorneys, and that more 
than 40 days elapsed from the date of service of contestee's answer. No 
testimony has been filed with the Clerk. The contest, therefore, 
appears to have abated.

    House Document No. 117 [69 Cong. Rec. 664, 70th Cong. 1st Sess.].

Sec. 6.2 Clark v White, 6th Congressional District of Kansas.

    Notice of contest not served within the legal time was held grounds 
for dismissal of the contest.
    Abatement of contest by withdrawal of contestant.
    Expenses of contest.--An elections committee exercised its 
discretion in awarding expenses to contestant.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 1 submitted by Mr. Don B. 
Colton, of Utah, on Feb. 21, 1928, follows:

                             Report No. 717

                 Contested Election Case, Clark v White

    At the election held in the sixth congressional district in the 
State of Kansas on November 5 and 8, 1926, according to the official 
returns, Hays B. White, the contestee, who was the Republican 
candidate, received 31,159 votes, and W. H. Clark, the contestant, who 
was the Democratic candidate, received 31,065 votes, thereby giving the 
contestee a plurality of 94 votes.
    Mr. Hays B. White, the contestee, was declared elected by a 
plurality of 94 votes over his Democratic opponent, W. H. Clark, and a 
certificate of election was filed with the Clerk of the House of 
Representatives.
    Thereafter the contestant served on the contestee a notice of 
contest, a copy of which notice and attached petition was in due course 
filed with the Clerk of the House of Representatives.
    To said notice and petition the contestee filed his answer setting 
forth that ``by his [aches, delay, and failure to comply with the 
statute promulgated in this behalf by the Congress, or to serve on the 
contestee any notice of intention to contest prior to December 11, 
1926, the contestant is precluded from asserting or proceeding with 
said contest, and that said contest be dismissed.''
    Thereafter nothing was done except that the attorneys for the 
parties appeared before your committee and made brief statements and 
requested that the contest be dismissed.
    Your committee therefore finds, after a careful analysis of this 
case and in conformity with congressional precedents, that this 
contested-election case should be dismissed and recommends to the House 
of Representatives the adoption of the following resolutions:

[[Page 1490]]

         Resolved, That W. H. Clark was not elected a 
     Representative in this Congress from the sixth congressional 
     district of the State of Kansas and is not entitled to a seat 
     herein.
         Resolved, That Hays B. White was duly elected a 
     Representative from the sixth congressional district of the 
     State of Kansas and is entitled to retain his seat herein.

    Privileged resolution (H. Res. 122) was agreed to by voice vote 
after debate on issue of expenses of contest-contestant awarded one-
half of amount claimed due him [H. Jour. 455, 70th Cong. 1st Sess.].

Sec. 6.3 Hubbard LaGuardia, 20th Congressional District of New York.

    Abatement of contest by withdrawal of contestant.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 1 submitted by Mr. Don B. 
Colton, of Utah, on Feb. 28, 1928, follows:

                             Report No. 787

              Contested Election Case, Hubbard v LaGuardia

    The Committee on Elections No. 1, which has had under consideration 
the contested election case of H. Warren Hubbard v. Fiorello H. 
LaGuardia, from the twentieth district of New York, reports as follows:
    The contestant having withdrawn from the contest by a letter of 
abatement duly subscribed and sworn to before a notary public, we 
submit the following resolution for adoption:

         Resolved, That Hon. Fiorello H. LaGuardia was duly 
     elected a Representative from the twentieth congressional 
     district of the State of New York to the Seventieth Congress 
     and is entitled to his seat.

    Privileged resolution (H. Res. 128) agreed to by voice vote without 
debate [69 Cong. Rec. 3862, 70th Cong. 1st Sess., Mar. 1, 1928; H. 
Jour. 490].

Sec. 6.4 Investigation of the Inhabitancy Qualification of James M. 
     Beck, 1st Congressional District of Pennsylvania.

    Qualifications of Member.--Investigation of a Member's inhabitancy 
qualification was instituted by a privileged resolution referring to an 
elections committee the question of the final right of the Member to 
his seat.
    A resolution referring the questions of prima facie and final 
rights of a Member-elect to his seat was amended to permit the Member-
elect to be sworn.

[[Page 1491]]

    On Dec. 5, 1927, during the organization of the House of 
Representatives of the Seventieth Congress, Mr. Finis J. Garrett, of 
Tennessee, objected to the administration of the oath to James M. Beck, 
of Pennsylvania. Mr. Garrett then offered the following resolution (H. 
Res. 1) as privileged:

    Whereas it is charged that James M. Beck, a Representative elect to 
the Seventieth Congress from the State of Pennsylvania, is ineligible 
to a seat in the House of Representatives for the reason that he was 
not at the time of his election an inhabitant of the State of 
Pennsylvania in the sense of the provision of the Constitution of the 
United States (par. 5 of sec. 2, Art. I) prescribing the qualifications 
for Members thereof; and whereas such charge is made through a Member 
of the House and on his responsibility as such Member, upon the basis, 
as he asserts, of records and papers evidencing such ineligibility:
    Resolved, That the question of the prima facie right of James M. 
Beck to be sworn in as a Representative from the State of Pennsylvania 
of the Seventieth Congress, as well as of his final right to a seat 
therein as such Representative, be referred to Committee on Elections 
No. 2; and until such committee shall report upon and the House decide 
such question and right, the said James M. Beck shall not be sworn in 
nor be entitled to the privileges of the floor; and said committee 
shall have power to send for persons and papers and examine witnesses 
on oath relative to the subject matter of this resolution.

    After debate Mr. Garrett moved the previous question on the 
resolution which was refused (158 yeas to 244 nays). Thereupon, Mr. 
Bertrand H. Snell, of New York, offered the following substitute, which 
was agreed to by voice vote:

    Resolved, That the gentleman from Pennsylvania, Mr. Beck, be now 
permitted to take the oath of office.

    The resolution, as amended, was agreed to by voice vote, whereupon 
Mr. Beck appeared at the bar of the House and was administered the oath 
of office. [69 Cong. Rec. 8, 10, 70th Cong. 1st Sess., Dec. 5, 1927, H. 
Jour. 7.]
    When the organization of the House was completed, Mr. Garrett 
offered the following privileged resolution:

    Whereas it is charged that James M. Beck, a Representative elect to 
the Seventieth Congress from the State of Pennsylvania, is ineligible 
to a seat in the House of Representatives for the reason that he was 
not at the time of his election an inhabitant of the State of 
Pennsylvania in the sense of the provision of the Constitution of the 
United States (par. 5 of sec. 2, Art. I) prescribing the qualifications 
for Members thereof; and

[[Page 1492]]

    Whereas such charge is made through a Member of the House, and on 
his responsibility as such Member upon the basis, as he asserts, of 
records and paper evidencing such ineligibility:
    Resolved, That the right of James M. Beck to a seat in the House of 
Representatives of the Seventieth Congress be referred to the Committee 
on Elections No. 2, which committee shall have power to send for 
persons and papers and examine witnesses on oath relative to the 
subject matter of the resolution.

    Privileged resolution (H. Res. 9) agreed to by voice vote without 
debate [69 Cong. Rec. 13, 70th Cong. 1st Sess., Dec. 5, 1927; H. Jour. 
8].
    Qualifications of Member.--The constitutional requirement of 
inhabitancy in the state when elected was held satisfied where the 
Member belonged to the ``body politic'' and lived in a leased apartment 
in that state part of each week, though he owned residences in other 
jurisdictions.
    Majority report for seated Member, who retained seat.
    Minority views that inhabitancy requirement was not met and that 
the Member was not entitled to his seat.
    Report of Committee on Elections No. 2 submitted by Mr. Bird J. 
Vincent, of Michigan, on Mar. 17, 1928, follows:

                             Report No. 975

    Investigation of the Inhabitancy Qualification of James M. Beck

             [To Accompany the James M. Beck Election Case]

    It will be seen at once that the sole question involved is the 
naked constitutional question as to whether, under the facts, Mr. James 
M. Beck at the time of his election to the House of Representatives was 
an inhabitant of Pennsylvania within the meaning of paragraph 2 of 
section 2, Article I of the Constitution of the United States. This and 
no other question is involved. No charge of fraud, nor any other 
wrongdoing, is raised against the entire regularity and legality of Mr. 
Beck's nomination nor election except the one question of his 
inhabitancy of Pennsylvania.

                               the facts

    Mr. James M. Beck was born in Philadelphia, Pa., July 9, 1861. He 
was educated in the schools of that city. Later he attended the 
Moravian College at Bethlehem, Pa. He was admitted to the bar in 
Philadelphia in 1884, and resided in that city and practiced law there 
continuously until 1900. During this period he served one term as 
assistant United States attorney for the district in which Philadelphia 
is located, and also one term as United States attorney for the same 
district. In 1900, he was appointed by President McKinley Assistant 
Attorney General of the United States, and came to Washington to 
discharge the duties of that office, but retained his residence

[[Page 1493]]

in Philadelphia until 1903, when he resigned from this office. Upon his 
resignation he went to the city of New York to engage there in the 
practice of law. At that time he gave up his residence in Philadelphia 
and acquired a residence in New York City. He continued to reside in 
New York City until November, 1920. In the intervening period between 
1903 and 1920, he acquired a summer home, not suitable for residence 
except as a summer place, at Seabright, N.J., which property he still 
owns.
    In November, 1920, he sold his residence in New York City and came 
to Washington and purchased a house which he has owned since, at 1624 
Twenty-first Street NW. He purchased this home in Washington in 
anticipation of being appointed to a position in the Harding 
administration, and in 1921 he was appointed Solicitor General of the 
United States by President Harding. He held this position until 1925, 
when he resigned for the reason that his eyesight was being impaired by 
the burden of the work connected with that office.

    Mr. Beck testified that when he went to New York to practice law, 
in 1903, he did so for the purpose of acquiring a competence; that he 
never intended to make New York his permanent home; that it was always 
his intention to return to his native city of Philadelphia when such a 
competence had been acquired. And that when he sold his residence in 
New York in 1920 he ceased all residential connection with that city 
and State.
    On April 30, 1925, he was appointed by the mayor of Philadelphia to 
represent the city of Philadelphia in securing the participation of 
foreign countries in the Sesquicentennial Exposition held in that city. 
Again the following year he was appointed as special commissioner of 
the exposition in foreign countries. On September 28, 1925, under a 
Federal statute which required that the advisory commission having the 
Sesquicentennial Exposition in charge should be composed of two members 
from each State, President Coolidge appointed Mr. Beck as one of the 
two members from Pennsylvania on the national advisory commission of 
that exposition.
    On April 30, 1925, Mr. Beck made an address at a club function in 
Philadelphia in which he expressed his intention of resuming his 
permanent home in Philadelphia. In the spring of 1926 he conducted 
negotiations for the securing of an apartment in that city. An 
apartment at 1414-1416 Spruce Street, in the building known as the 
Richelieu Apartments, was selected and agreed upon. Before executing 
the lease therefor Mr. Beck went to Europe on matters connected with 
the Sesquicentennial Exposition. The apartment was held for him until 
his return. On July 6, 1926, he executed the lease for this apartment 
in which it was provided that the rental should begin on June 1, 1926, 
the lease to be for one year with the privilege of renewal thereafter 
from year to year unless one of the parties thereto gave notice of 
discontinuance at least two months prior to the end of the current 
annual period. This was an unfurnished housekeeping apartment. The 
rental agreed upon was $110 per month, which the testimony showed Mr. 
Beck had paid continuously since the beginning of the lease. He 
immediately furnished the apartment with proper furniture and 
equipment.
    It appeared from the testimony that Mr. Beck, with the exception of 
occasions when he was absent in Europe on business connected with the 
Sesqui

[[Page 1494]]

centennial, and except for summer periods spent in his Seabright summer 
home, has occupied this apartment one or more times each week. His 
sister, Miss Helen Beck, has also occupied the apartment for a 
considerable portion of the time it has been under lease. On numerous 
occasions when Mr. Beck was in Philadelphia, and his sister also was 
occupying the apartment while Mr. Beck made it his headquarters, it 
frequently occurred that he would spend the night near by at the Art 
Club of Philadelphia, of which he has been a member for years. The 
apartment consists of a living room, a bedroom, a kitchen, and a 
bathroom. Mr. Beck has retained his Washington house fully furnished 
and has occupied it whenever he desired during all of this period. He 
testified that he retained his Washington residence in the main because 
his professional work largely consisted of cases before the Supreme 
Court of the United States. He has a law office in the city of 
Washington but not in partnership with any other attorney. His private 
business affairs are all conducted in Philadelphia, the Girard Trust 
Co. being his fiscal agent.
    While Mr. Beck was a resident of New York he voted in that city. 
While he was Solicitor General of the United States, he registered and 
voted from his summer home in Seabright, N.J. The last vote he cast 
there was in the presidential election of 1924. He testified that on 
account of his intention to reidentify himself with his native city of 
Philadelphia, and to resume his citizenship in the State of 
Pennsylvania he refrained from voting elsewhere after 1924.
    The law of Pennsylvania contains a requirement of a residence of 
one year in that State in order to qualify for registration for 
electoral purposes, except that in the case of one that has theretofore 
been a citizen of that State and, having resided elsewhere, has 
returned to the State of Pennsylvania, such residence requirement is 
reduced to six months. It is also required that in order to register in 
Pennsylvania one must have paid a tax of some sort; and if one has not 
paid a real estate or personal property tax, then one must pay a poll 
tax of 25 cents and hold the receipt at the time of registration. Mr. 
Beck paid this poll tax in September, 1927, and offered himself for 
registration as a voter in September, 1927, and was registered. He 
voted in the primaries in the city of Philadelphia on September 20, 
1927. He was assessed for a personal property tax on a valuation of 
$20,000 in Philadelphia on October 3, 1927. This tax did not become 
payable until after the expiration of the year 1927.
    After the primary of September 20, 1927, the Representative-elect 
from the first congressional district of Pennsylvania, Mr. Hazlett, 
resigned and to fill the vacancy so caused the proper Republican 
authorities nominated Mr. Beck for Representative in Congress on the 
Republican ticket. The Democratic Party nominated Mr. J. P. Mulrenan. 
At the election on November 6, 1927, Mr. Beck was elected by a majority 
of approximately 60,000.
    As tending to prove his constant intention to reidentify himself 
with Philadelphia and to resume his citizenship thereof, Mr. Beck 
testified concerning his membership in many social and civic 
institutions of that city, most of these memberships having existed for 
many years. Among these were the Fairmount Park Art Association, of 
which he had been president

[[Page 1495]]

and is now vice president and general counsel--its purpose is the 
improvement of the city by the erection of works of art therein; the 
Philadelphia Commission, having a somewhat similar purpose as that of 
the foregoing association; the City Parks Association, having a 
somewhat similar purpose; the American Philosophical Society; the Art 
Club; the Legal Club; the Shakespeare Society; the Mahogany Tree Club; 
the Franklin Inn Club; the General Alumni Society of the University of 
Pennsylvania; the New England Society of Pennsylvania; the Historical 
Society of Pennsylvania; the Five O'Clock Club; the Orpheus Club; the 
Friendly Sons of St. Patrick. It is proper to say in connection with 
the memberships in these clubs and associations that two of the clubs 
carry a separate roster for resident and nonresident memberships. Mr. 
Beck stated that he did not personally draw the checks for membership 
dues in these organizations but that this matter was taken care of by 
his secretary. In the late fall of 1927 his attention was called to the 
question as to whether he ought not to change from the nonresident 
classification to resident classification in the Art Club. This he 
attended to as soon as the matter was brought to his notice. In the 
case of the other club having the two classifications, he was carried 
as a nonresident member.
    It is proper to add also that the house in Washington is an 
attractive, commodious, well-furnished house, in which there is much 
more room and much more valuable furniture and equipment than in the 
Philadelphia apartment, and that in the matter of number of days 
actually spent by Mr. Beck in these two places of abode since the 
acquiring of the Philadelphia apartment, more days have been spent in 
the Washington house than in the Philadelphia apartment. It further 
appeared that Mr. Beck had on occasions when he was a guest in hotels 
registered from Washington, and that his automobiles bear license 
plates provided by the District of Columbia.

                      the constitutional provision

    Paragraph 2 of section 2, Article I of the Constitution provides as 
follows:

         No person shall be a Representative who shall not have 
     attained the age of 25 years and been 7 years a citizen of 
     the United States and who shall not, when elected, be an 
     inhabitant of that State in which he shall be chosen.

            the proceedings in the constitutional convention

    To determine whether the facts applicable to the case of Mr. Beck 
place him within the meaning of the framers of the Constitution in 
their use of the word ``inhabitant,'' it is of the greatest importance 
to consider the debate which occurred at the time this provision was 
adopted. This particular provision of the Constitution was considered 
on Wednesday, August 8, 1787, and as it came before the convention the 
provisions were the same as now except that citizenship of the United 
States for a period of three years was required, and it was also 
required that the Representative should be a ``resident`` of the State 
from which he should be chosen. The following is the entire debate 
contained in the Madison Papers on this paragraph of the Constitution:

[[Page 1496]]

         Col. Mason was for opening a wide door for emigrants; but 
     did not chuse to let foreigners and adventurers make laws for 
     us & govern us. Citizenship for three years was not enough 
     for ensuring that local knowledge which ought to be possessed 
     by the Representative. This was the principal ground of his 
     objection to so short a term. It might also happen that a 
     rich foreign Nation, for example Great Britain, might send 
     over her tools who might bribe their way into the Legislature 
     for insidious purposes. He moved that ``seven'' years instead 
     of ``three'' be inserted.
         Mr. Govr. Morris seconded the motion, & on the question, 
     All the States agreed to it except Connecticut.
         Mr. Sherman moved to strike out the word ``resident'' and 
     insert ``inhabitant,'' as less liable to misconstruction.
         Mr. Madison seconded the motion. Both were vague, but the 
     latter least so in common acceptation, and would not exclude 
     persons absent occasionally for a considerable time on public 
     or private business. Great disputes had been raised in 
     Virginia, concerning the meaning of residence as a 
     qualification of Representatives which were determined more 
     according to the affection or dislike to the man in question, 
     than to any fixt interpretation of the word.
         Mr. Wilson preferred ``inhabitant''.
         Mr. Govr. Morris was opposed to both and for requiring 
     nothing more than a freehold. He quoted great disputes in New 
     York occasioned by these terms, which were decided by the 
     arbitrary will of the majority. Such a regulation is not 
     necessary. People rarely chuse a nonresident. It is improper 
     as in the 1st branch, the people at large, not the states, 
     are represented.
         Mr. Rutlidge urged & moved that a residence of 7 years 
     should be required in the State wherein the Member should be 
     elected. An emigrant from New England to South Carolina or 
     Georgia would know little of its affairs and could not be 
     supposed to acquire a thorough knowledge in less time.
         Mr. Read reminded him that we were now forming a National 
     Government and such a regulation would correspond little with 
     the idea that we were one people.
         Mr. Wilson enforced the same consideration.
         Mr. Madison suggested the case of new states in the West, 
     which could have perhaps no representation on that plan.
         Mr. Merger. Such a regulation would present a greater 
     alienship among the States than existed under the old federal 
     system. It would interweave local prejudices and State 
     distinctions in the very Constitution which is meant to cure 
     them. He mentioned instances of violent disputes raised in 
     Maryland concerning the term ``residence''.
         Mr. Elseworth thought seven years of residence was by far 
     too long a term: but that some fixt term of previous 
     residence would

[[Page 1497]]

     be proper. He thought one year would be sufficient, but 
     seemed to have no objection to three years.
         Mr. Dickinson proposed that it should read ``inhabitant 
     actually resident for ---- year''. This would render the 
     meaning less indeterminate.
         Mr. Wilbon. If a short term should be inserted in the 
     blank, so strict an expression might be construed to exclude 
     the members of the Legislature, who could not be said to be 
     actual residents in their States whilst at the Seat of the 
     General Government.
         Mr. Merger. It would certainly exclude men, who had once 
     been inhabitants, and returning from residence elsewhere to 
     resettle in their original State; although a want of the 
     necessary knowledge could not in such case be presumed.
         Mr. Mason thought 7 years too long, but would never agree 
     to part with the principle. It is a valuable principle. He 
     thought it a defect in the plan that the Representatives 
     would be too few to bring with them all the local knowledge 
     necessary. If residence be not required, rich men of 
     neighbouring States, may employ with success the means of 
     corruption in some particular district and thereby get into 
     the public Councils after having failed in their own State. 
     This is the practice in the boroughs of England.
         On the question for postponing in order to consider Mr. 
     Dickinsons motion:
         New Hampshire, no. Massachusetts, no. Connecticut, no. 
     New Jersey, no. Pennsylvania, no. Delaware, no. Maryland, ay. 
     Virginia, no. North Carolina, no. South Carolina, ay. 
     Georgia, ay.
         On the question for inserting ``inhabitant'' in place of 
     ``resident''--agreed to nem. con.
         Mr. Elseworth & Col. Mason move to insert ``one year'' 
     for previous inhabitancy.

         Mr. Williamson liked the Report as it stood. He thought 
     ``resident'' a good enough term. He was against requiring any 
     period of previous residence. New residents if elected will 
     be most zealous to conform to the will of their constituents, 
     as their conduct will be watched with a more jealous eye.
         Mr. Butler and Mr. Rutlidge moved ``three years'' instead 
     of ``one year'' for previous inhabitancy.
         On the question for 3 years:
         New Hampshire, no. Massachusetts, no. Connecticut, no. 
     New Jersey, no. Pennsylvania, no. Delaware, no. Maryland, no. 
     Virginia, no. North Carolina, no. South Carolina, ay. 
     Georgia, ay.
         On the question for ``1 year'':
         New Hampshire, no. Massachusetts, no. Connecticut, no. 
     New Jersey, ay. Pennsylvania, no. Delaware, no. Maryland, 
     divided, Virginia, no. North Carolina, ay. South Carolina, 
     ay. Georgia, ay.

[[Page 1498]]

    It is evident that in this debate the framers of the Constitution 
were seeking for a nontechnical word, the main purpose of which would 
be to insure that the Representative, when chosen, from a particular 
State should have adequate knowledge of its local affairs and 
conditions. Mr. Madison, Mr. Wilson, and Mr. Mercer all emphasized that 
it was not desired to exclude men who had once been inhabitants of a 
State and who were returning to resettle in their original state, or 
men who were absent for considerable periods on public or private 
business. The convention by vote deliberately declined to fix any time 
limit during which inhabitancy must persist. To get clearly in mind the 
thought which the word ``inhabitant'' held in the minds of the framers 
of the Constitution, it is well to recall that in the days of the 
Colonies the people who constituted the body politic of a colony were 
quite generally described in the charters and other public documents 
connected with the governments of the Colonies as being ``subjects'' of 
Great Britain and ``inhabitants'' of the colony in which they were 
members of the body politic.
    A number of examples of this are recited in the volume of law 
arguments taken in the hearings before this committee, beginning on 
page 38. To these men an ``inhabitant'' was one who had an abode within 
a colony and was recognized and identified as one who was a member of 
the body politic thereof. The fact that he might absent himself 
physically from the colony for a very considerable period of time did 
not militate against the recognition of him as an inhabitant of such a 
colony, and this remained true after the Colonies had achieved their 
independence and had become independent States. Thus, though George 
Washington was for the greater part of 16 years absent from Mount 
Vernon and Benjamin Franklin was absent for years from Pennsylvania, no 
one would have considered there was any cloud on their title as 
inhabitants, respectively, of the States of Virginia and Pennsylvania. 
In those early times it was the uncommon rather than the common thing 
that a man should have more than one place of abode. In these modern 
times it is quite common that men have two or more places of abode to 
which they may repair according to the season of the year, according to 
their business convenience, or according to the public duties which 
they may be called upon to discharge, This is true of many Members of 
each House of the Congress to-day, but the principle has not changed. 
Admittedly a man can have but one inhabitancy within the meaning of the 
Constitution at a given time. Where this may be is a mixed question of 
intent and of fact.
    To be an inhabitant within the Constitution, it seems clear that 
one must have first, as a matter of fact, a place of abode, and, 
second, that this place of abode be intended by him as his 
headquarters; the place where his civic duties and responsibilities 
center; the place from which he will exercise his civic rights. We 
think that a fair reading of the debate on this paragraph of the 
Constitution discloses that it was not intended that the word 
``inhabitant'' should be regarded in a captious, technical sense. Can 
it be that the fathers intended that to determine whether one was an 
inhabitant of a particular place that the number of days which he 
actually spent there in a given period should be counted and his 
absences balanced against the periods of his physical presence? Can it 
be that the fathers intended that the

[[Page 1499]]

tenure of his holding of a particular abode, whether it be by fee-
simple title or by leasehold, should govern the question as to whether 
it was the place of inhabitance? We feel positive that such a 
construction would in no sense carry out the meaning which the framers 
of the Constitution regarded as contained in this word. Further, such a 
technical attempt at construction would result in the very confusion 
which the debate showed the framers hoped to avoid by the rejection of 
the word ``resident.'' We think that a fair interpretation of the 
letter and the spirit of this paragraph with respect to the word 
``inhabitant'' is that the framers intended that for a person to bring 
himself within the scope of its meaning he must have and occupy a place 
of abode within the particular State in which he claims inhabitancy, 
and that he must have openly and avowedly by act and by word subjected 
himself to the duties and responsibilities of a member of the body 
politic of that particular State.
    That Mr. Beck has such an abode in the State of Pennsylvania cannot 
be questioned. That he had obtained it a year and a half before his 
election to Congress is unquestioned. That he had occupied it according 
to his convenience one or more times a week during that period was 
testified to by Mr. Beck and certainly was not disproved by any other 
evidence. It is true that during a part of the period under discussion 
he was absent from the country, but then he was absent on business 
connected with the city of Philadelphia, and certainly such absence 
ought not to be counted against his being an inhabitant, the absence 
being on public business connected with the very city in which he 
claims to be an inhabitant. It is true too that he spent a short 
portion of time in the summer at his place at Seabright, N.J., but it 
will be an unusual conclusion if it is held that for a man to absent 
himself from the place of his inhabitance in order to live for a time 
at his summer place raises a cloud upon the legal continuance of his 
inhabitancy. So much for the fact as to a place of abode in 
Pennsylvania.
    As to Mr. Beck's intention, let it be said that he testified before 
the committee, fully and frankly, as to all the circumstances and facts 
which were asked of him; as fully and frankly disclosing those facts 
which seemed, possibly, to militate against him as to any. He solemnly 
testified under oath before the committee that when he went to New York 
to live in 1903 he then had the intention some time to return to 
Philadelphia, his native city, and resume his citizenship in that city 
and reidentify himself with its affairs. Hence, he kept his memberships 
in all the civic associations in which he had acquired membership 
before his leaving. He testified that this had always been his 
intention during all of the time he was away from Philadelphia.
    He testified that when he left New York in 1920 and came to 
Washington to take up the duties of Solicitor General of the United 
States that he had acquired a competence, and that it was his 
intention, if found acceptable to the public, to devote the remainder 
of his life to public service; and that when his duties were ended as 
Solicitor General he began negotiating for a place in Philadelphia so 
that he might carry out the intention he had held all those years to 
return and reidentify himself with Philadelphia and with its public 
affairs. He testified that at that time he entertained the hope that it 
might occur that he could have a seat in Congress from that city.

[[Page 1500]]

    In carrying out his desire to give himself to the public service of 
that city, he gave very much of his time to the Sesquicentennial 
Exposition, accepting a commission from the mayor of the city and from 
the President of the United States to a high position connected with 
that exposition, that he traveled abroad to foreign countries to engage 
their interest and cooperation in making the exposition a success, 
giving his time and efforts thereto without any remuneration.

    He solemnly testified under oath that since June 1, 1926, his 
intention has been to be a resident of the State of Pennsylvania and in 
the constitutional sense to be an inhabitant of that State, and to 
subject himself to all the duties as well as to enjoy the privileges of 
that status.
    There is no testimony and no fact which would warrant the committee 
in making a finding that this statement is not entirely true.
    Further than this, Mr. Beck is now and was at the time of his 
election a ``legal resident'' of Pennsylvania. We do not think that 
this can be disputed. He had a habitation there and at the expiration 
of more than the required time under the constitution of Pennsylvania 
he presented himself for registration, asserted his intention to be a 
resident of Pennsylvania, and was registered as a voter. By that act he 
subjected himself conclusively to all the duties of a resident of 
Pennsylvania. Thereupon he became subject, among other things, to 
personal taxation within the State of Pennsylvania, subject to jury 
duty there, and, if he died, conclusively subject to the inheritance 
tax laws of that State. In other words, he subjected himself to all the 
duties that fall upon a resident of that State and could not be heard 
to claim that he was not a resident there.
    Mr. Beck is a ``citizen'' of Pennsylvania. We do not think this can 
be disputed. Born in that State, after having left it he has returned 
and maintained a legal residence more than sufficiently long to satisfy 
the constitutional provision of that State as to citizenship therein.
    Mr. Beck is a legal elector in the State of Pennsylvania. We do not 
think this can be disputed. Having maintained a legal residence in that 
State more than sufficiently long to qualify him for the electoral 
privileges, he attended to the formalities thereof, paid the poll tax 
required, offered himself to the registration board for registration, 
was registered as a voter without challenge, and thereafter and before 
his election performed the privilege of voting in an election without 
challenge.
    We do not think that the framers of the Constitution intended by 
the use of the word ``inhabitant'' that the anomalous situation might 
ever arise that a man should be a citizen, a legal resident, and a 
voter within a given State and yet be constitutionally an inhabitant 
elsewhere. If any such conclusion could be reached we might have the 
peculiar result in this country of a man being a resident, a citizen, 
and a voter in a given State, and yet within the constitutional sense 
barred from the right of representing a district in that State in 
Congress, but having the right to represent a district in another State 
in Congress. No such interpretation can fairly be read into this 
provision. We think that Mr. Beck having legally subjected himself to 
the duties and responsibilities of a citizen and an inhabitant of 
Pennsylvania, having maintained an habitation there, and having 
occupied the same regularly,

[[Page 1501]]

though not continuously, is also entitled to the rights of a citizen 
and an inhabitant of Pennsylvania. We think that such a finding is 
entirely within the meaning, the spirit, and the letter of the 
Constitution.

                             the precedents

    We think that a proper interpretation of the facts in the early 
case of Philip B. Key in the Tenth Congress would be controlling in the 
present case. Mr. Key was a native of Maryland and a citizen and 
resident of that State at the time of the adoption of the Constitution. 
He was never a citizen or resident of any other of the United States. 
But in 1801 he removed from Maryland to his house in Georgetown, D.C., 
where he continued to reside until 1806. During that period he had no 
other habitation. In 1805, however, he had purchased land in Maryland 
and had contracted for the erection of a summer home thereon, intended 
for his own use. On September 18, 1806, he removed with his family into 
this summer home, which was not yet entirely completed. On October 6, 
1806, just 18 days later, an election occurred in which Mr. Key was 
elected to a seat in the House of Representatives. He had left his 
house in Georgetown, D.C., fully furnished. On October 20, 1806, he 
removed with his family and household to his house in the District of 
Columbia again, where he lived until July, 1807, in which month he 
returned to his Maryland house and lived in it until October 23, 1807. 
On this latter date he returned to his house in the District of 
Columbia to attend to his duties in Congress. During the five years 
that he had no habitation in Maryland and during which his sole 
habitation was in the District of Columbia he continued to practice law 
in Maryland and had not practiced in the District of Columbia. But he 
had in January, February, and March, 1806, declared that he intended to 
reside in Maryland and that he bought the land with that intention. It 
was admitted that the house which he built in Maryland and which he 
occupied only 18 days before the election was fitted only for a summer 
residence and was much inferior to the house in the District of 
Columbia, and that the latter was left practically with its furnishing 
complete whenever the family went to Maryland. This case will be found 
reported on page 417 of the first volume of Hinds' Precedents.
    In the argument before the committee an attempt was made to 
distinguish this case from the Beck case in two particulars, first, 
that Mr. Key when he left Maryland did not establish a residence in any 
other State but only in the District of Columbia, while Mr. Beck when 
he left Pennsylvania established a residence first in New York and 
later in the District of Columbia. We are unable to see that this 
creates any distinction between the two cases as a matter of legal 
contemplation. Mr. Key utterly ceased to be an inhabitant of Maryland 
in 1801. Mr. Beck has fully ceased to be an inhabitant of Pennsylvania 
in 1903. We fail to see wherein any distinction as a matter of law can 
arise on the question of inhabitancy due to the fact that one moved 
into the District of Columbia and the other moved into the State of New 
York. In each case the habitation in the native State completely 
ceased. In both cases, if it were revived, the revival occurred by 
proceeding from the District of Columbia back to the native State. In 
the case of Mr. Key, the new inhabitancy of the State of Maryland 
existed for 18 days prior

[[Page 1502]]

to the election. In the case of Mr. Beck, it existed for a year and a 
half prior to the election.
    The other point of distinction that was attempted to be raised to 
void the effect of the Key case on the present issue in the argument 
was that in the Key case Mr. Key owned outright the house in Maryland 
to which he moved 18 days prior to his election, while Mr. Beck's is a 
leasehold. We can not conceive that there is any merit in this 
attempted distinction. It is as common in this country for a man's 
habitation to be held by lease as it is by fee ownership. It is the 
intent under which he occupies it which is the controlling feature. The 
House of Representatives held that Mr. Key was, within the 
constitutional sense, an inhabitant of Maryland and entitled to his 
seat in the House of Representatives.

    A case which was relied upon in the argument to uphold the 
exclusion of Mr. Beck from his seat was the case of John Bailey, 
elected from Massachusetts to the Eighteenth Congress, reported on page 
419 of the first volume of Hinds' Precedents. The facts in that case 
were as follows:
    On October 1, 1817, Mr. Bailey, who was then a resident of 
Massachusetts, was appointed a clerk in the Department of State. He 
immediately repaired to Washington and entered upon the duties of his 
position and continued to hold the position and reside in Washington 
until October 21, 1823, when he resigned the appointment. It did not 
appear that he exercised any of the rights of citizenship in the 
District, and there was evidence to show that he considered 
Massachusetts as his home, and his residence in Washington only 
temporary. It was shown that Mr. Bailey resided in Washington in a 
public hotel with occasional absences on visits to Massachusetts until 
his marriage in Washington, at which time he took up his residence with 
his wife's mother. He never exercised the right of suffrage in 
Massachusetts after leaving there for Washington.
    The election at which Mr. Bailey was chosen as a Representative was 
held September 8, 1823, at which time he was actually residing in 
Washington in his capacity as clerk in the State Department. This case 
was debated in the House for seven days and, of course, many things 
were said, but the facts in it are what seem important in its use as a 
precedent. Mr. Bailey had no abode in Massachusetts. Before he came to 
Washington he lived with his parents in their house. He had none of his 
own, either leased or owned. In support of the committee, it was stated 
``had he left a dwelling house in Massachusetts in which his family 
resided a part of the year; had he left there any of the insignia of a 
household establishment, there would be indication that his domicile in 
Massachusetts had not been abandoned.''
    We think that the Bailey case is clearly distinguishable from the 
Beck case in that Mr. Bailey had no habitation, no place of abode, 
under his control in Massachusetts at any time after he accepted the 
appointment in Washington. The very report of the committee in the 
Bailey case shows that had he maintained any place of abode or insignia 
of domestic establishment to which he had repaired from time to time, 
the holding of the committee would have been otherwise.

[[Page 1503]]

    No doubt it would do violence to words to hold that a man was an 
inhabitant of a place where he had no habitation. The House of 
Representatives held that Mr. Bailey was not entitled to his seat.
    The case of Nathan B. Scott, elected a Senator from the State of 
West Virginia in 1899, was contested on the ground that he was not an 
inhabitant of the State of West Virginia at the time he was elected. 
Mr. Scott resided at Wheeling, W. Va., until January 1, 1898, when he 
was appointed Commissioner of Internal Revenue, at which time he came 
to Washington to discharge the duties of that office. His intention was 
to retain his residence and habitation at Wheeling, W. Va., and in 
carrying out that intention he voted in the election held November 8, 
1898, at Wheeling, W. Va. He had no intention to change his domicile to 
Washington from Wheeling and he claimed to be an inhabitant of 
Wheeling, W. Va. The committee found that Mr. Scott was an inhabitant 
of Wheeling, W. Va., at the time he was elected to the Senate of the 
United States.
    In the Bailey case, Mr. Bailey did not exercise the rights of 
citizenship in the State of Massachusetts, nor did he vote in the State 
of Massachusetts. In the Scott case, Senator Scott did, and the Senate 
found that he was an inhabitant of the State of West Virginia.
    The committee desires to direct attention to the language in the 
decision of the Supreme Court of the United States in the case of 
Shelton v. Tiffln (6 Howard, 163, 185). The Federal courts had no 
jurisdiction in this controversy, unless within the meaning of section 
2 of Article III of the Constitution of the United States, the parties 
thereto were citizens of different States. Hence, this question being 
raised, its solution was necessary to the decision of the court. In 
this case, the Supreme Court uses the following language:

         On a change of domicile from one State to another, 
     citizenship may depend upon the intention of the individual. 
     But this intention may be shown more satisfactorily by acts 
     than declarations. An exercise of the right of suffrage is 
     conclusive on the subject; but acquiring a right of suffrage, 
     accompanied by acts which show a permanent location, 
     unexplained, may be sufficient.

    It is true that a holding of even the Supreme Court of the United 
States is not binding on the House of Representatives in the question 
at bar, since this question is committed by the Constitution solely to 
the House of Representatives, but we think the opinion of the Supreme 
Court of the United States ought to be regarded with the highest 
respect and should be very persuasive in deciding a similar question. 
It will be remembered in this connection that Mr. Beck registered as a 
voter and exercised the right of suffrage in Philadelphia in the month 
of September, prior to the November in which he was elected to 
Congress.
    It is true that in the many court decisions that have been rendered 
in various courts of the States, under different legal situations, many 
contradictory definitions of the words ``inhabitant'' and ``resident'' 
may be found. We are impressed, however, with the conviction that the 
framers of the Constitution were seeking to use the word inhabitant in 
the plain, nontechnical

[[Page 1504]]

sense in which it had been understood as explained above up to the time 
of the framing of the Constitution, and that their purpose was to 
require those who represented the several States in the House of 
Representatives to be identified with the local interests of those 
States by having a habitation therein and being in addition a member of 
the body politic of the particular State from whence they came to the 
House.
    It was argued before the committee that such a construction would 
lead to the existence of ``rotten boroughs'' in the United States as 
once existed in England. We think this argument misapprehends what the 
``rotten boroughs'' were. It will be remembered that the ``rotten 
boroughs'' consisted of small communities with few inhabitants, which 
were given representation in Parliament out of all proportion to the 
population of other areas and large centers. In other words, the 
``rotten boroughs'' situation in England resulted in insufficient 
representation for large bodies of the population as compared to many 
small communities. We call attention to the fact that if a man, because 
he has business in the District of Columbia and arranges a place of 
abode there so that he may conveniently care for such business when 
necessity occasions it, whether it be public or private, is to be 
denied for that reason the right to have a habitation within one of the 
States, to acquire citizenship there, to be an elector there, to take 
his part in exercising the duties and responsibilities of citizenship, 
it will result in a much closer approximation to the ``rotten borough'' 
situation which has been described and condemned.
    After all, we must rely upon the integrity, the patriotism, and the 
good common sense of the electors in the various districts with respect 
to the choice of a fit membership in the House of Representatives. This 
is a part of the very genius of representative government. And we do 
not think that it is proper to seek for strained and captious 
interpretations of this paragraph of the Constitution to find reasons 
for rejecting men who have been chosen through the deliberate will of 
their constituents as indicated at the polls. We believe that every 
word of the Constitution should be upheld, but we do not think that men 
who have been chosen to represent a district should be excluded unless 
their case presents a clear violation of the Constitutional provision. 
We are convinced that such is not the case in the matter now before us. 
We believe that Mr. Beck is clearly entitled to his seat.
    For the above reasons, the committee recommends the adoption of the 
following resolution (H. Res. 283):

         Resolved, That James M. Beck is entitled to his seat in 
     the Seventieth Congress as a Member of the House of 
     Representatives from the first congressional district of the 
     State of Pennsylvania.

    The following minority views were submitted by Mr. Gordon Browning, 
of Tennessee, and Mr. T. Webber Wilson, of Mississippi:

    We, the minority, regret to find ourselves in disagreement with a 
majority of the committee who report that Mr. James M. Beck is entitled 
to a seat in the House of Representatives from the first Pennsylvania 
district. If the

[[Page 1505]]

question involved were not one of vast importance, in our opinion, we 
would not interpose our opposition; for there could be no personal 
objection to Mr. Beck as a Member. Neither is there any political 
significance that could attach to the challenge of his right to sit, as 
anyone from that district at this time undoubtedly would be of his 
political faith. And we recognize fully that the renown of Mr. Beck as 
a constitutional lawyer and a man of high intellectual attainments 
necessarily is persuasive with the committee.
    But the issue is one which goes to the vitals of the National 
Constitution. Mr. Beck in his opening statement expressly recognized 
that the question is not free from difficulty. The question arises as 
to his qualification under Article I, section 2, of the Constitution, 
wherein it says:

         No person shall be a Representative who shall not have 
     attained to the age of 25 years, and been 7 years a citizen 
     of the United States, and who shall not, when elected, be an 
     inhabitant of the State in which he shall be chosen.

    Our conviction is that he was not an inhabitant of the State of 
Pennsylvania in November, 1927, when chosen.
    Mr. Beck was born in Philadelphia, July 9, 1861, and had his home 
in that State until 1900, when he came to Washington, D.C., as 
Assistant Attorney General. In 1903 he resigned his position in 
Washington, gave up his residence in Philadelphia, and moved to New 
York to practice law with a view to securing a competence. He owned one 
or more homes in New York where he lived and voted and practiced law 
until November, 1920. At that time he sold his New York home and 
purchased a commodious residence on Twenty-first Street NW., 
Washington, D.C., to which he immediately moved his family, his 
extensive personal library, his art treasures, and all his personal 
belongings he holds most dear.
    In June, 1921, Mr. Beck was appointed Solicitor General of the 
United States by President Harding, and held that position until June, 
1925, when he resigned on account of his eyes failing. He immediately 
established a law office in the Southern Building, Washington, and 
specialized in United States Supreme Court practice, which law office 
he still maintains. He also resumed his connection with his old law 
firm in New York. He does not practice law in Pennsylvania, and has not 
since 1900.
    For several years he has owned and used a summer home in Seabright, 
N.J., on the ocean front. After moving from New York in 1920 he 
established a voting status at his summer home and he and his wife 
voted there in the 1924 presidential election by mail. In November, 
1927, when chosen he sustained the same relation as to voting status in 
New Jersey which he did in 1924 and does at the present time, except 
expressing an intention, which was not carried out, to transfer it to 
Pennsylvania. His residential connection there is exactly the same, 
having used that residence for himself and family the last summer 
months. So far as the New Jersey authorities are concerned, no act of 
Mr. Beck had shown withdrawal of claims for voting privileges in that 
State.
    In the early spring of 1926 he went to Philadelphia, and with Mr. 
Greenfield, a real-estate man who is also prominent politically, looked 
at some two

[[Page 1506]]

or three apartments in the first congressional district with a view to 
retaining one for the specific purpose of running for Congress from 
that district. Mr. Beck states that he had two purposes in view by 
this. One was to again establish a status in Philadelphia as one of its 
people. The other was to run for Congress from that district. As to the 
latter purpose he said:

         The seat in Congress was then a possibility undoubtedly, 
     and I would not want to say, and could not say, truthfully, 
     that it had nothing to do with the renting of the apartment. 
     (Rec. p. 58.)

    Again he states:

         The apartment was selected in full anticipation of the 
     fact that I might run for Congress. My point is that my 
     taking any habitation in Philadelphia had as its dominant 
     purpose the desire to be reidentified with the political life 
     of Philadelphia, quite irrespective of whether I ran for 
     Congress or not. But the selection of this locality had in 
     mind the possibility of my going to Congress; and it also had 
     in mind that it was very accessible to the main thoroughfare 
     of Philadelphia, and right around the corner from my club. 
     (Rec. p. 61.)

    Mr. Vare, the then sitting Member from the first Pennsylvania 
district, was at that time a candidate for nomination to the United 
States Senate.
    But no apartment was then agreed on, and Mr. Beck went to Europe on 
a business mission in April, 1926. He returned early in June. On the 
6th of July following it seemed that Mr. Greenfield had put in order a 
two-room apartment at 1414 Spruce Street, and Mr. Beck then leased it 
as of date June 1, 1926. This was a yearly renewable lease, unless 
either party exercised the option of giving a legal notice of its 
termination. The apartment was then furnished by Mr. Beck, and he still 
holds it and pays rent on it.
    His unmarried sister, Miss Helen Beck, has occupied this apartment 
continuously for a year; and while she is in it he goes to the Art Club 
to sleep when in Philadelphia rather than incommode her. The apartment 
is equipped with a kitchenette, but Mr. Beck has never eaten a meal 
there. It has one bedroom.
    Mr. Beck states that he is in Philadelphia most every week; that he 
frequently goes to New York on business, and stops over there to break 
the trip. He was carried as a nonresident member of several clubs in 
Philadelphia at the time of election and until January last. In none of 
them was he listed as a resident member.
    The janitor of this apartment house, who admits he is entirely 
unreliable, when approached on the premises, and without notice of the 
purpose of the inquiry, first said he had only seen Mr. Beck there 
three times in the 18 months. When placed on the stand he finally 
estimated that he had known of him being there 15 or 20 times.

    On page 66 of the record, Mr. Beck gives the status of his family 
as follows:

         Mr. Kent. Now, your family consists of whom?

[[Page 1507]]

         Mr. Beck. My wife and myself. I have two children.
         Mr. Kent. Where are they?
         Mr. Beck. My daughter is the wife of the United States 
     consul at Geneva, my son has been in London ever since he was 
     in the Army in France. But neither of my children live with 
     Mrs. Beck and myself. We live alone.

    And there can be no question but that Mr. Beck and his wife ``live 
alone'' in Washington, D.C., and have lived here since November, 1920, 
have had this as their domicile, their abode, their habitation. Mr. 
Beck always registers from Washington when he goes to hotels, has his 
merchandise for personal comfort sent to him here, has his automobiles 
for every use registered here; and at no time has he treated the small 
two-room apartment in Philadelphia as a real, bona fide habitation for 
any purpose except a gesture at compliance with the constitutional 
requirement for an inhabitant.
    So his claim to inhabitancy is based on the rental of this 
apartment, which is in reality a place for his unmarried sister to 
live, with occasional visits to the city of Philadelphia by him when he 
would stop largely at the Art Club or a hotel; his testimony of intent 
to return; that he transacts his private affairs in Pennsylvania; and 
that he attempted to qualify and did vote there in a primary in that 
State in 1927.
    We can not ascribe to the doctrine that intention is the 
controlling part of inhabitancy. Mr. Beck quotes approvingly a letter 
relating to his speech in Philadelphia, on April 30, 1925, to the 
effect that he was ``then in a position to take a permanent home again 
in Philadelphia, where, among your old friends and your books, you 
would indulge yourself for the balance of your life.'' Of this Mr. Beck 
said, ``that is just what I said in substance.'' It would be a strange 
perversion of every rule to accept even undisputed intentions, shown by 
declarations, in the face of a state of facts, such as we have in this 
case, to prove inhabitancy. In truth, Mr. Beck never took a permanent 
home again in Philadelphia. Had he done so, and moved his family and 
his books and household there before election, as his expressed 
intention was, no question would now be made as to his eligibility. 
Intention, in a case of this kind, is a deduction or conclusion of law 
founded on fact. We must determine from the facts whether inhabitancy 
exists. It certainly can not be shifted or designated at the whim or 
pleasure of the individual affected.
    Granting that he had the intention to return, this was outweighed 
by his desire to inhabit Washington, to practice law here, to have 
advantage of proximity to the United States Supreme Court, to all 
Federal activities, to retain all his books, works of art, home, 
servants, automobiles, mental endeavors, entirely without the borders 
of the State of Pennsylvania.
    As to the transaction of his private affairs in Pennsylvania, it is 
a fair inference from the proof that he has $20,000 in securities or 
some other form of property in that State, as he submitted to an 
assessment in that sum. But he pays taxes in New Jersey on both real 
and personal property, pays his income tax from Washington, as well as 
a realty tax here, no doubt on more property value than that for which 
he is assessed in Pennsylvania. We can find no burdens of citizenship 
carried by Mr. Beck in that State which he

[[Page 1508]]

does not bear both in New Jersey and the District of Columbia, except 
25 cents paid in September last for an occupational tax.
    It is contended that a mere political status meets this requirement 
of the Constitution. If a political status could be counted the sole 
qualification for holding this office under the Federal Constitution, a 
citizen just naturalized, and having acquired a voting privilege in his 
State could sit in Congress, although the Constitution says he must 
have ``been seven years a citizen of the United States''; and likewise, 
if the citizen is 21 years of age and can vote in his State he could 
come to Congress in the face of the constitutional provision that ``no 
person shall be a Representative who shall not have attained the age of 
25 years.'' The burdens of citizenship are definitely placed on these 
two classes who are forbidden to hold a seat in Congress even though 
their constituents should choose them unanimously. There is no more 
discrimination against one who has met the requirements for voting in a 
State, but who is not an inhabitant of that State within the meaning of 
our National Constitution, than there is against these others so 
limited in this privilege.
    A mere voting privilege is granted by each separate State in its 
own way. If a voter can satisfy the requirements of a State law, he can 
exercise the privilege of franchise. But compliance with the 
requirements of the Federal Constitution in qualifying for membership 
in this House is entirely independent of State regulation. A 
regulation. A voting status can not be the measure of inhabitancy. If 
it had been thus intended, the Federal Constitution would have remained 
silent and thereby left the matter to the separate States. This would 
amount to the same thing as expressly telling each of the States to fix 
this qualification, when they would leave that right in the absence of 
any expression by the Federal Constitution.
    One of the conclusive reasons that they regarded a ``citizen'' and 
an ``inhabitant'' as entirely different designations is that they used 
both in this same clause, this same sentence, for separate and distinct 
qualifications for membership. No trivial matter of verbiage or curious 
distinction is necessary to a sensible meaning of this term as used by 
great men.
    The word was substituted for ``resident,'' and the reason clearly 
given by the great Madison was to allow a temporary absence from a true 
domicile, not to place it on a casual presence in a temporary domicile.
    Mr. Beck was not a qualified elector of the State of Pennsylvania 
at the time he voted in the primary of September, 1927, nor at the time 
of his election to Congress. The constitution of that State requires 
that an elector-must be a ``resident'' of the State for 6 months next 
before voting in his case, and 12 months for one who has never before 
been a citizen of Pennsylvania. And the courts of that State have 
repeatedly and uniformly held as in Fry's election case (71 Pa. 302, p. 
305):

         When the Constitution declares that the elector must be a 
     resident of the State for one year, it refers beyond 
     question, to the State as his home or domicile, and not as 
     the place of a temporary sojourn. . . .

[[Page 1509]]

         These extracts will enable us to understand more clearly 
     the term ``residence,'' as denoting that home or domicile 
     which the third article of the Constitution applies to the 
     freeman of the Commonwealth. It means that place where the 
     elector makes his permanent or true home, his principal place 
     of business, and his family residence, if he have one; where 
     he intends to remain indefinitely; and without a present 
     intention to depart; when he leaves it he intends to return 
     to it, and after his return he deems himself at home.

    It can not be reasonably contended that Mr. Beck has his home or 
domicile in Pennsylvania at that time. It was here in Washington, where 
it has been since November, 1920, the place where he has his family 
life, where he comes when he is sick, his true home, the only 
establishment he has had which resembles a home or permanent domicile, 
where he keeps his five servants, two automobiles, and the only place 
he keeps these or any other semblances of home life to comport with his 
accustomed comfort.
    In addition to this, he did not procure his occupational tax 
receipt on the 9th of September, 1927, legally. This is not meant in 
the sense of imputing bad faith to Mr. Beck, but the law requires 
specifically that this must be purchased from the office of the 
receiver of taxes in person or from a deputy at the place of 
registration on any of the registration days provided by law; and the 
only exception to this is when a written and signed order is given by 
the elector to a person to purchase same for him. This was not done. 
The receipt was delivered to Mr. Beck in the office of Mr. Vare, not on 
registration day, not at the place for registration, not in the office 
of the receiver of taxes, and after being procured by some person with 
no written authority to purchase same. It is expressly made unlawful in 
Pennsylvania for any person to vote or attempt to vote upon a tax 
receipt so obtained in violation of this law. It appears from the 
testimony by Harry W. Keely, receiver of taxes for the city of 
Philadelphia, Mr. Beck, and others, that this receipt was not issued in 
accordance with law and could not be used lawfully. It was only 11 days 
old when used by him, whereas the law directs that it must have been 
purchased 30 days before the election in which it is used. But the 
disqualification for voting which is in no way technical is that of 
failure to comply with the requirements of a ``resident,'' since his 
real home, his actual established home, is elsewhere than in 
Pennsylvania, where at best he only has a place of temporary sojourn.
    But if Mr. Beck had been qualified and had legally voted in all 
Pennsylvania elections, this would in no way be conclusive of 
inhabitancy. In the Virginia case of Bayley v. Barbour (47th Cong., 
Hinds, vol. 1, p. 425) the House held as follows:

         In answer to this position, without deeming it necessary 
     upon the facts of this case to enter into the constitutional 
     signification of inhabitancy, it is only necessary to say 
     that the right to vote is not an essential of inhabitancy 
     within the meaning of the Constitution, which is apparent 
     from an inspection of the Constitution itself. In Article I, 
     section 2, the electors of Members of Con

[[Page 1510]]

     gress ``shall have the qualifications requisite for electors 
     of the most numerous branch of the State legislature,'' but 
     in the succeeding section, providing for the qualifications 
     of Members of Congress, it is provided that he shall be an 
     inhabitant of the State in which he is chosen. It is 
     reasonable to conclude that if the elective franchise was an 
     essential the word ``elector'' would have been used in both 
     sections, and that it is not used is conclusive that it was 
     not so intended.

    And if a voting status ``is not an essential of inhabitancy within 
the meaning of the Constitution,'' but is vitally essential to 
citizenship or a political status, it would be sophistry indeed to hold 
them synonymous.
    The term ``inhabitant'' has never been defined by the courts in 
connection with this clause of the Constitution, as the House is the 
sole judge of the qualifications of its Members, so we must look 
elsewhere for an authentic definition. The intent of the framers should 
govern if that can be ascertained, and we insist it is very patent from 
the only definite construction of the word which has ever been in 
common usage. There has been no marked change in the commonly accepted 
meaning of the term since 1787, when the Constitution was framed.
    Webster's New International Dictionary says of inhabitant:

         ``One who dwells or resides permanently in a place, as 
     distinguished from a transient lodger or visitor.''
         ``It ordinarily implies more fixity of abode than 
     resident.''
         ``Inhabitant, the general term, implies permanent abode; 
     citizen, enjoyment of the full rights and privileges of 
     allegiance.''

    Entick Dictionary, London, 1786, gives the following:

         ``Inhabitant, one who dwells in a place.''

    Dr. Samuel Johnson's Dictionary, 1770, gives the following:

         ``Inhabitant, dweller; one who lives or resides in a 
     place.''

    Ash's Dictionary, 1775, gives the following:

         ``Inhabitant: A dweller, one that resides in a place.''

    Dyche's English Dictionary, 1794, gives the following:

         ``Inhabitant: One who lives in a place or house, a 
     dweller.''

    Law dictionaries contemporaneous with the framing of the 
Constitution do not vary from this. A new Law Dictionary, by Giles 
Jacob, ninth edition, published in London, 1772, gives the following:

         ``Inhabitant: Is a dweller or householder in any place.''

    Doctor Burn's Law Dictionary, published in London, 1792, Vol. II, 
page 21:

[[Page 1511]]

         ``The word Inhabitant doth not extend to lodgers, 
     servants, or the like; but to householders only.''

    Burrill's Law Dictionary says:

         ``The Latin Habitara, the root of this word, imparts by 
     its very construction frequency, constancy, permanency, 
     closeness of connection, attachment, both physical and moral; 
     and word `in' serves to give additional force to these 
     senses.''

    Black's Law Dictionary:

         ``Inhabitant; one who resides actually and permanently in 
     a given place, and has his domicile there.''

    In Book I, chapter 19, section 213, Vattel says:

         ``The term `inhabitant' is derived from abode and 
     habitation, and not from political privileges.''

    We think the test of inhabitancy is a permanent and fixed abode 
with the personal presence of the individual in that place, ordinarily; 
and absence from it must be for a cause temporary in its nature, with 
the intent to return to said place of abode to reside as soon as the 
purpose of the said absent mission is accomplished. The absent mission 
may be in its nature for pleasure, business, or public duty. When said 
absence is for the purpose of engaging in a business or occupation 
which calls for the establishment of a home and indeterminate presence 
therein pursuant to said activity, we consider the former inhabitancy 
broken, or suspended at least until it again takes on the degree of 
permanence it formerly had. The overwhelming weight of authority, both 
as to legal construction and definition, support this view.
    Every recognized authority, whether legal or otherwise, excludes 
the idea of temporary residence, and holds that the term ``inhabitant'' 
carries with it the necessity of a fixed and permanent home, the place 
at which one is habitually present under ordinary circumstances, and to 
which, when he departs for temporary purposes, he intends to return. 
This is the common and only justified construction of the word.
    The constitution of New Hampshire, adopted in 1792, shows clearly 
what the common acceptation and meaning of this term was in the 
following declaration:

         And every person qualified as this constitution provides, 
     shall be considered an inhabitant, for the purpose of 
     electing and being elected into any office or placed within 
     this State, in the town, parish, and plantation where he 
     dwelleth or hath his home.

    The constitution of Massachusetts, adopted in 1780, Chapter I, 
section 2, Article 2, declares that----

     to remove all doubts concerning the word ``inhabitant,'' in 
     this constitution, every person shall be considered an 
     inhabitant (for

[[Page 1512]]

     the purpose of electing and being elected into any office or 
     place within this State) in that town, district, or 
     plantation, where he dwelleth or hath his home.

    This constitution was amended in 1821 to confer the right to vote 
on citizens who have resided in the State one year, and in the town or 
district six months. In 46 Mass. (5 Metc.) 587, 588 it was held that 
``inhabitant'' as used in the original constitution is identical in 
meaning and synonymous with ``citizen who has resided,'' as expressed 
in the amendment. These provisions and construction are the best 
possible means of determining the exact use made of the term at that 
time. Some of the men who were in the National Constitutional 
Convention were members of the State conventions that placed in the 
documents themselves this definition of ``inhabitant.''
    On the 8th of August, 1787, in the Constitutional Convention, the 
committee of detail struck out of the text at this place the word 
``resident'' and substituted the word ``inhabitant.'' The motion was 
made by Mr. Sherman and seconded by Mr. Madison, who thought the latter 
less vague, and would permit absence for a considerable time on public 
or private business without disqualification. They were trying to get 
away from the abuse being made of the loose construction of 
``resident'' by personal enemies of those who sought to qualify. There 
is no suggestion of an uncommon meaning to be given the word in their 
use of it here. The construction placed on these statements of Mr. 
Madison and others by Mr. Beck is to apply it to his case wherein he 
was absent from Pennsylvania 23 years, under his own admission, and yet 
he would not be disqualified on the grounds of inhabitancy. (Rec. p. 
15.) And this regardless of the fact that during that time he had been 
an inhabitant of New York, New Jersey, and the District of Columbia, 
and had voted in both these States, and still has his only true home in 
Washington. Nothing was further from the thoughts of these great men.
    Mr. James Wilson preferred ``inhabitant'' to ``resident''. 
Statements made by him and Mr. Sherman at other stages of the debates 
prove conclusively that they would not countenance a provision to 
permit representation by one who had not had his actual habitation 
among his constituents for such a long time. The brilliant James 
Wilson, when insisting on election of the Members of the House by the 
people, as shown in Formation of the Union, page 755, said:

         Mr. Wilson is of the opinion that the national 
     legislative powers ought to flow immediately from the people, 
     so as to contain all their understanding and to be an exact 
     transcript of their minds.

    Mr. Sherman, in advocating annual election of Members of the House, 
said:

         Mr. Sherman thought Representatives should return home 
     and mix with the people. By remaining at the seat of 
     government they would acquire the habits of the place which 
     might differ from those of their constituents. So he 
     preferred annual elections. (Formation of the Union, p. 256.)

[[Page 1513]]

         Mr. Sherman. I am for one year. Our people are accustomed 
     to annual elections. Should the Members have a longer 
     duration of service, and remain at the seat of government, 
     they may forget their constituents, and perhaps imbibe the 
     interest of the State in which they reside, or there may be 
     danger of catching the esprit de corps. (Formation of the 
     Union, p. 794.)

    And this from the man who moved to substitute ``inhabitant'' for 
``resident.'' He was unwilling that a man should stay more than a year 
at the seat of government before giving an account of his convictions 
to his people.
    In placing this limitation on qualifications for membership in the 
House it was an attempt on their part to preserve the coloring of local 
State convictions, State feelings, which might be lost if men with 
attachments to other locations and other conditions were permitted to 
sit for them; that otherwise they feared attachments for State 
governments, would be lost to the General Government, and usurpation of 
powers by the latter encouraged. No fear was ever better founded or 
more completely borne out by the present trend toward centralization.
    In Story on the Constitution, Volume I, article 619, he says:

         The object of this clause, doubtless, was to secure an 
     attachment to, and a just representation of, the interests of 
     the State in the national councils. It was supposed that an 
     inhabitant would feel a deeper concern and possess a more 
     enlightened view of the various interests of his constituents 
     than a mere stranger. And, at all events, he would generally 
     possess more entirely their sympathy and confidence.

    In Constitution of the United States, by John Randolph Tucker, 
Volume I, pages 394, 395, we find:

         This inhabitancy or domicile of the person in the State 
     which chooses him was to exclude all who, by noninhabitancy, 
     might secure an election when by reason of no community of 
     interest, with the constituency, he would be unfitted to 
     represent it.

    There was the purpose, no doubt, as shown by the committee 
discussion, to guard against corruption by the wealthy who might hunt 
for a district to purchase. But the very foundation of representative 
government, to their minds, rested on their ability to insure a true 
reflection of local sentiment in the most numerous legislative branch. 
They sought to make the House a cross section of national thought, of 
national aspirations, of national feelings. They will that their 
Government should always have a common interest with the people, and be 
administered for their good, be responsive to their will; so it was 
essential to their rights and liberties that the Members of the House 
should have an immediate instruction from and sympathy with the people. 
Hence the reasonableness of the provision that a person, to become a 
Representative must have a bona fide and permanent abode, and actually 
live among his future constituents. No habitual nonresident is 
eligible.

[[Page 1514]]

    The leading case directly in point is that of John Bailey, of 
Massachusetts, decided in the Eighteenth Congress, as shown in Hinds' 
Precedents, Volume I, page 419.
    On October 1, 1817, Mr. Bailey was appointed a clerk in the State 
Department from his father's home in Massachusetts, and held said 
position for six years. During that time he lived in Washington in 
hotels, until a year before his election in September, 1923, at which 
time he married in Washington and moved into the home of his wife's 
mother. He had made occasional visits back to Massachusetts, had his 
library there, claimed his father's home as his habitation, declared 
his stay in Washington temporary, and that his real habitation was 
Massachusetts.
    In the report adopted in that case Annals of Congress, volume 41, 
page 1594, a full discussion and interpretation of the word 
``inhabitant'' is given. It is set forth that the word was substituted 
for ``resident'' as being a ``stronger'' term, intended to express more 
clearly their intention that the persons to be elected should be 
completely identified with the State in which they were to be chosen. 
Because of the importance of this case, we quote extensively from the 
report as follows:

                                   I

         ``The difficulty attending the interpretation of 
     constitutional provisions, which depend on the construction 
     of a particular word, renders it necessary to complete 
     explication, to obtain, if possible, a knowledge of the 
     reasons which influenced the framers of the Constitution in 
     the adoption and use of the word `inhabitant,' and to make an 
     endeavor at ascertaining, as far as practicable, whether they 
     intended it to apply, according to its common acceptation, to 
     the persons whose abode, living, ordinary habitation, or home 
     should be within the state in which they should be chosen, 
     or, on the contrary, according to some uncommon or technical 
     meaning.''

                                   II

         ``The true theory of the representative Government is 
     bottomed on the principle that public opinion is to direct 
     the legislation of the country, subject to the provisions of 
     the Constitution, and the most effectual means of securing a 
     due regard to the public interest, and a proper solicitude to 
     relieve the public inconveniences is to have the 
     Representative selected from the bosom of that society which 
     is composed of his constituents. A knowledge of the character 
     of the people for whom one is called to act is truly 
     necessary, as well as of the views which they entertain of 
     public affairs. This can only be acquired by mingling in 
     their company and joining in their conversations; but above 
     all, that reciprocity of feeling and identity of interest, so 
     necessary to relations of this kind, and which operate as a 
     mutual guaranty between the par

[[Page 1515]]

     ties, can only exist, in their full extent, among members of 
     the same community.
         ``All these reasons conspire to render it absolutely 
     necessary that every well-regulated government should have, 
     in its constitution, a provision which should embrace those 
     advantages, and there can be no doubt it was from 
     considerations of this kind that that convention wisely 
     determined to insert in the Constitution that provision which 
     declares no person shall be a Member of either House of 
     Congress, `who shall not, at the time of the election, be an 
     inhabitant of that State in which he shall be chosen,' 
     meaning thereby that they should be bona fide members of the 
     State, subject to all the requisitions of its laws and 
     entitled to all the privileges and advantages which they 
     confer. That this subject occupied the particular attention 
     of the convention and that the word 'inhabitant' was not 
     introduced without due consideration and discussion is 
     evident from the journals, by which it appears that, in the 
     draft of a constitution reported by the committee of five, on 
     the 6th of August, the word `resident' was contained, and 
     that, on the 8th of that same month, the convention amended 
     that report by striking out `resident,' and inserting 
     `inhabitant,' as a stronger term, intended more clearly to 
     express their intention that the persons to be elected should 
     be completely identified with the State in which they were to 
     be chosen. Having examined the case, in connection with the 
     probable reasons which influenced the minds of the members of 
     the convention and led to the use of the word `inhabitant' in 
     the Constitution, in relation to Senators and Representatives 
     in Congress, it may not be improper, before an attempt is 
     made at a further definition of the word, a little to 
     consider that of citizen, with the view of showing that many 
     of the misconceptions in respect to the former have arisen 
     from confounding it with the latter.

         ``The word `inhabitant' comprehends a simple fact, 
     locality of existence; that of `citizen' a combination of 
     civil privileges, some of which may be enjoyed in any of the 
     States in the Union. The word `citizen' may properly be 
     construed to mean a member of a political society; and 
     although he might be absent for years and cease to be an 
     inhabitant of its territory, his rights of citizenship may 
     not be thereby forfeited, but may be resumed whenever he may 
     choose to return; or, indeed, such of them as are not 
     interdicted by the requisition of inhabitancy, may be 
     considered as reserved; as, for instance, in many of the 
     States a person who, by reason of absence, would not be 
     eligible to a seat in the legislature, might be appointed a 
     judge of any of their courts. The reason of this is obvious. 
     The judges are clothed with no discretionary powers about 
     which the public opinion is necessary to be consulted; they 
     are not makers but expounders of the law, and the 
     constitution and statutes of the State are the only 
     authorities they have to consult and obey.''

[[Page 1516]]

                                  III

         ``If citizenship in one part of the Union was only to be 
     acquired by a formal renunciation of allegiance to the State 
     from which the person came, previous to his being admitted to 
     the rights of citizenship in the State to which he had 
     removed, the expression of an intention to return would be of 
     importance; but, as it is, it can have no bearing on the 
     case; the doctrine is not applicable to citizens of this 
     confederacy removing from one State and settling in another; 
     nor can it, in the present case, be considered as going to 
     establish inhabitancy in Massachusetts when the fact is 
     conceded that, at the time of the election, and for nearly 
     six years before, Mr. Bailey was actually an inhabitant of 
     the city of Washington, in the District of Columbia, and, by 
     the charter of the city, and the laws in force in the 
     District, was, to all intents and purposes, as much an 
     inhabitant thereof as though he had been born and resided 
     there during the whole period of his life; and the refusal to 
     exercise the rights of a citizen can be of no consequence in 
     the case. It is not the exercise of privileges that 
     constitutes a citizen; it is being a citizen that gives the 
     title to those privileges.''

    If the former action of the House is to have any weight with us 
now, this Bailey decision definitely disposes of the major contention 
that a political status is the answer to inhabitancy. Mr. Madison was 
then alive and vigorous, and no doubt watched with interest every 
interpretation of the Constitution. Had this decision done any violence 
to the intention of the framers, it would have been his nature to 
protest. But no comment from him can be found. And no holding of the 
House has ever reversed or modified the principles of interpretation 
established in this report.
    It is apparent that temporary absence from a regular habitation on 
private or official business does not disqualify under this clause. The 
same committee which reported the Bailey case, and at the same session, 
in the Forsyth case, so held. But the presence of Mr. Beck in his home 
in Washington can not stand on that exception. He purchased his home 
here and moved into it from a full citizenship of the State of New York 
some seven months before he became connected with a Government 
position. He remained an inhabitant of the District of Columbia from 
June, 1925, until July, 1926, with no official connection whatsoever, 
before he rented the apartment in Philadelphia. And in this connection 
let it be denied, as charged by him, that almost one-half the Senate 
and a large number of the House who have homes here are in a similar 
position to his.
    The Members of Congress referred to, when elected, were bona fide 
inhabitants of their respective States. Any home established here for 
their use is incident to the discharge of public duty, temporary, and 
does not destroy the status of inhabitancy they had when elected. He 
seeks to reverse that order by having his real habitation in Washington 
to begin with and attempting to create a fictitious abode in the State 
of Pennsylvania for the purposes of qualification and not as an 
incident to service after election. There is no

[[Page 1517]]

such wholesale condition of noninhabitancy prevailing, but if such were 
the case the House would have all the more reason to check a flagrant 
violation of the Constitution.
    His former residence in Pennsylvania can not enter into this 
consideration for the reason that, at least for 23 years, he was 
completely severed and divorced from that State so far as any pretense 
to habitation or voting privilege or citizenship is concerned. He 
divested himself of every privilege of citizenship in Pennsylvania to 
avail himself of the superior advantages he would have in moving to New 
York. His claim must stand or fall on the facts developing after July, 
1926. It will be observed from the record that Mr. Beck had but little 
to do personally with the effort to qualify him under the State law for 
voting. Undoubtedly he did not even familiarize himself with the legal 
requirements for voting. While he was in Europe and two months before 
he rented any apartment, he was entered on the assessment roll for a 
voting tax out of the regular order and of date exactly six months 
before the November election, the time required for returning to 
citizenship in that State. He never regarded this assessment enough to 
pay the 25-cent tax. He did not run for Congress that year because he 
did not get the endorsement of the Vare organization. A brother-in-law 
of Mr. Vare was nominated and elected.
    The question then arose as to the legality of the election of Mr. 
Vare to the Senate and his right to a seat therein, and Mr. Beck 
because of counsel for him. He was assessed in the semiannual 
assessment for 1926 and again ignored it. Twice in 1927 Mr. Beck's name 
was placed on the assessors' list, once out of regular order which 
assessment was again ignored by him, and Mr. Vare's office procured the 
only tax receipt of any kind he has purchased in that State, 25 cents 
each for him and Mrs. Beck and delivered it to him in said office. He 
registered the next day and voted in the primary 10 days later, in 
which the Member of Congress from that district was nominated for a 
city office and immediately resigned his seat.

    Thereupon the Vare organization, through Mr. Vare's secretary, 
notified Mr. Beck that he would be nominated for Congress at a certain 
time, and for him to be in waiting. He was called for at the designated 
time, conducted to a hall, and was formally notified of and accepted 
the nomination from the seven men present, who had nominated him, two 
of whom he states he knows. He made no canvass whatever in this 
district for the purpose of developing sentiment in his favor or for 
expressing his views on national issues.
    Mr. Beck only made three speeches in Philadelphia in the city-wide 
campaign, in November, 1927, general election, at which time he was 
elected, all on Friday or Saturday next before the election on Tuesday, 
and then left immediately for his Washington home. He did not vote in 
the said election the following Tuesday for the reason that he was at 
home, and not in Pennsylvania. He had entertained anxiety that an 
adverse city election for the Vare ticket would be construed as a 
repudiation of his client, and his speeches had been made in an effort 
to avert this.
    In a day when a political machine can select any individual it 
chooses to put into the House, there are multiplied dangers to those 
the fathers knew

[[Page 1518]]

when they made this inhibition. Without reflecting in the least on the 
personal desirability of Mr. Beck, it is clear that, if his contention 
is to prevail, an all-powerful, though it be an unscrupulous, combine 
in control of a district machine can select anyone they need for any 
special purpose, and the House would be powerless to resist it. All 
that would be required of their choice would be to establish what can 
be termed a technical, constructive, fictitious, superficial, fly-by-
night residence and then go a-carpetbagging. This presages a radical 
and serious departure from the fundamentals of representative 
government as we know it.
    This is not a case of simply thwarting the will of a constituency. 
We consider that any constituency should have the right of choice, but 
that choice must be within constitutional bounds. Our charter of 
liberties, the Constitution, should stand above the aspirations of an 
individual who would subvert it or the action of constituencies who 
ignore it. If Mr. Beck is to retain his seat we view the precedent, not 
as a part of the general ``erosion'' of the Constitution, but as a 
frontal attack on it, a blasting process which is to weaken the 
foundation of the great American dream of representative government.

    Privileged resolution (H. Res. 283) agreed to by voice vote after 
extended debate and after defeat (78 yeas to 247 nays with 3 
``present'' of substitute declaring Member not entitled to a seat [70 
Cong. Rec. 1351. 70th Cong. 2d Sess., Jan. 8, 1929; H. Jour. 98].

Sec. 6.5 Taylor v England, 6th Congressional District of West Virginia.

    Pleadings.--Filing of brief by contestant after the legal time with 
consent of contestee was permitted by an elections committee.
    State election law requiring rejection of ballots not signed by 
election officials was held not binding on the House where voter intent 
was clear.
    Ballots, rejected by election officials as not signed, were not 
counted where contestant failed to sustain his allegations that the 
election result would be changed.
    Returns were not partially rejected where both parties failed to 
sustain allegations of fraud with sufficient evidence.
    Report for contestee, who retained his seat.
    Report of Committee on Elections No. 3 submitted by Mr. Charles L. 
Gifford, of Massachusetts, on Apr. 9, 1928, follows:

                            Report No. 1181

               Contested Election Case, Taylor v England

                         statement of the case

    On the 2d of November, 1926, a congressional election was held in 
the sixth district of West Virginia, the nominees being Hon. E. T. 
England, on the Republican ticket, and Hon. J. Alfred Taylor, on the 
Democratic ticket.

[[Page 1519]]

When the returns from the various precincts had been certified, the 
State officials canvassed the returns and issued a certificate of 
election to Hon. E. T. England, the incumbent, based on the following:


                                                                  Votes

1VotesMr. England..............................................   45,898
Mr. Taylor.....................................................   45,681
                                                                --------
    Majority given to Mr. England by the election officials....      217


    On the 26th day of January, 1927, the contestant, J. Alfred Taylor, 
served notice of contest upon the contestee, E. T. England, setting 
forth certain grounds of contest, the two upon which he later elected 
to rely being briefly summarized as follows:

         (a) That several hundred ballots were cast which did not 
     bear the signature of the clerks of election written in the 
     manner prescribed by the West Virginia statute governing 
     election procedure and which the election officials refused 
     to canvass, tabulate, or count, although said ballots 
     expressed the clear intent of the voter and consequently 
     should have been counted, his contention being that if the 
     ballots so rejected were to be counted they would give him a 
     majority of the votes cast.
         (b) That fraud was exercised by the proponents of the 
     contestee in precinct No. 27, known as the Triangle precinct, 
     and that all the votes cast in said precinct, which gave a 
     majority therein of 385 for the contestee, should be 
     rejected.

    On the 12th day of February, 1927, the contestee's answer and 
counternotice of contest was served upon the contestant, J. Alfred 
Taylor.
    Evidence was taken by depositions, the contestee's brief was filed 
on the 31st of December, 1927, and thereafter, to wit, on the 10th day 
of February, 1928, the contestant filed his reply brief, said brief 
being submitted after the expiration of the 30-day period prescribed 
for the filing thereof, but being accepted by your committee with the 
consent of the contestee.

                      proceedings of the committee

    The testimony in the case having been printed and the same, 
together with the printed briefs of both parties to the contest having 
been transmitted to the committee, a public hearing was given the 
parties on the 9th day of March, 1928, at which time oral arguments 
were presented by the contestant, Hon. J. Alfred Taylor and his 
counsel, John H. Connaughton, esq., and by Charles Ritchie, esq., 
counsel for the contestee, Hon. E. T. England, said arguments being 
likewise printed and made a part of the records of the contest.
    On the 4th day of April, 1928, your committee met for further 
consideration of the case and it was the unanimous conclusion thereof 
that-

[[Page 1520]]

    I. The House of Representatives should not consider itself 
obligated to follow the drastic statute of the State of West Virginia, 
under the provisions of which all ballots not personally signed by the 
clerks of election in strict compliance with the manner prescribed had 
been rejected, but should retain the discretionary right to follow the 
rule of endeavoring to discover the clear intent of the voter. However, 
your committee further found that the contestant had not substantiated 
his allegation that if all the votes which had been rejected by the 
election officials on the ground stated were to be counted the result 
would be a majority in his favor.
    II. That neither the contestant nor the contestee had presented 
sufficient evidence to establish their mutual contentions that fraud 
had been practiced in various precincts, including the so-called 
Triangle precinct, the rejection of the votes cast in which would have 
been necessary if the contestant were to prevail, and that no votes 
should be thrown out because of fraud.

                               conclusion

    Your committee unanimously finds, therefore, that the contestant 
has not sustained the contentions which were the basis of his contest 
and begs to submit for adoption the following resolution:

         Resolved, That E. T. England was duly elected a 
     Representative from the sixth district of West Virginia to 
     the Seventieth Congress, and is entitled to his seat therein.

    Privileged resolution (H. Res. 161) agreed to by voice vote without 
debate [69 Cong. Rec. 6298, 70th Cong. 1st Sess., Apr. 12, 1928; H. 
Jour. 670].


                Sec. 7.  Seventy-first Congress, 1929-31

Sec. 7.1 Wurzbach v McCloskey, 14th Congressional District of Texas.

    Returns were examined by an elections committee upon adoption by 
the House of a privileged resolution authorizing subpena of returns and 
election officials.
    Fraud sufficient to change the election result was admitted by 
contestee during pleadings.
    Summary report for contestant, who was seated; contestee was 
unseated.
    On Jan. 7, 1930, Mr. Willis G. Sears, of Nebraska, offered as 
privileged by direction of the Committee on Elections No. 3 the 
following resolution:

    Resolved, That Jack R. Burke, county clerk, or one of his deputies, 
Perry Robertson, county judge, or one of his deputies, and Lamar 
Seeligson, district attorney all of Bexar County, State of Texas, are 
hereby ordered to appear before Elections Committee No. 3, of the House 
of Representatives as required then and there to testify before said 
committee in the contested-

[[Page 1521]]

election case of Harry M. Wurzbach, contestant, versus Augustus 
McCloskey, contestee, now pending before said committee for 
investigation and report; and that said county clerk or his deputy, 
said county judge or his deputy, and said district attorney bring with 
them all the election returns they and each of them have in their 
custody, control, or/and possession, returned in the said county of 
Bexar, Tex., at the general election held on November 6, 1928, and that 
said county clerk also bring with him the election record book for the 
said county of Bexar, Tex., showing the record of returns made in the 
congressional election for the fourteenth congressional district of 
Texas, for the said general election held on November 6, 1928, and to 
that end that the proper subpoenas be issued to the Sergeant at Arms of 
this House commanding him to summon all of said witnesses, and that 
said county clerk, said county judge, and said district attorney to 
appear with said election returns, as witnesses in said case, and said 
county clerk with said election record book; and that the expense of 
said witnesses and all other expenses under this resolution shall be 
paid out of the contingent fund of the House; and that said committee 
be, and hereby is, empowered to send for all other persons or papers as 
it may find necessary for the proper determination of said controversy.

    The resolution (H. Res. 113) was agreed to by voice vote after a 
response by the Speaker that the resolution was privileged [72 Cong. 
Rec. 1187, 71st Cong. 2d Sess., Jan. 7, 1930; H. Jour. 117].
    Report of Committee on Elections No. 3 submitted by Mr. Willis G. 
Sears, of Nebraska, on Feb. 10, 1930, follows:

                             Report No. 648

             Contested Election Case, Wurzbach v McCloskey

                       [To accompany H. Res. 149]

To the Speaker and the House of Representatives: 

    Your committee begs leave to report, that after a full hearing, we 
find that Harry M. Wurzbach, contestant, is entitled to be seated as 
Member of the House of Representatives, from the Fourteenth 
congressional district of Texas, and that Augustus McCloskey is not 
entitled to retain his seat in said body.

    Subsequently, the following privileged resolution (H. Res. 149) was 
agreed to after debate by voice vote [72 Cong. Rec. 3383, 71st Cong. 2d 
Sess., Feb. 10, 1930; H. Jour. 249]:

    Resolved, That Augustus McCloskey was not elected as Representative 
in the Seventy-first Congress from the fourteenth congressional 
district of Texas, and is not entitled to a seat as such 
Representative.

    Resolved, That Harry M. Wurzbach was elected as a Representative in 
the Seventy-first Congress from the fourteenth district in the State of 
Texas and is entitled to his seat as such Representative.

[[Page 1522]]

Sec. 7.2 Lawson v Owen, 4th Congressional District of Florida.

    Contestant, an unsuccessful candidate in the general election, was 
held not entitled to a seat where ballots cast for contestee with 
questionable qualifications were not clearly void.
    Qualifications of Member.--The seven-years' U.S. citizenship 
requirement was held fulfilled in the case of a woman Member-elect, who 
had forfeited her citizenship by marriage to a foreign alien and who 
had later been naturalized less than seven years before the election.
    The majority of an elections committee held that cumulative years 
of citizenship satisfied the seven-year requirement of the U.S. 
Constitution.
    A minority of an elections committee construed the ``Cable Act'' to 
reestablish contestee's required consecutive years of citizenship.
    Report for contestee, who retained her seat.
    Report of Committee on Elections No. 1 submitted by Mr. Carroll L. 
Beedy, of Maine, on Mar. 24, 1930, follows:

                             Report No. 968

                 Contested Election Case, Lawson v Owen

    The Committee on Elections No. 1, having had under consideration 
the right of Mrs. Ruth Bryan Owen to her seat as a Representative in 
the Seventy-first Congress from the fourth congressional district of 
Florida, as submitted, the said committee, after consideration of the 
same, respectfully submits this report to the House of Representatives.

                         the question involved

    The question involved is whether Mrs. Ruth Bryan Owen on the 6th 
day of November, 1928, on which date an election of a Representative to 
the Federal House of Representatives from the fourth congressional 
district of the State of Florida was held in said district and State, 
had been seven years a citizen of the United States as required by, and 
within the meaning of, paragraph 2 of section 2, Article I, of the 
Constitution of the United States.
    It was contended by the contestant, William C. Lawson, that Ruth 
Bryan Owen had not been seven years a citizen of the United States next 
preceding the said election, and that such a period of citizenship must 
have next preceded the election in order to meet the qualifications for 
a Representative to the House of Representatives, as set forth in 
paragraph 2 of section 2, Article I of the Constitution; that he, the 
said William C. Lawson, being more than 25 years of age, and having 
been an American citizen for seven years next preceding such election, 
was duly qualified to sit in the House of Representatives as a 
Representative from the fourth congressional district of Florida for 
the following reasons:

[[Page 1523]]

    1. That in the aforesaid election of November 6, 1928, he, William 
C. Lawson, received 36,288 duly qualified votes as a candidate for 
Representative in the House of Representatives from the fourth 
congressional district of Florida.
    2. That Ruth Bryan Owen at said election on the 6th day of 
November, 1928, although receiving 67,130 votes, had not been for seven 
years next preceding the said election a citizen of the United States, 
was not eligible or qualified for membership in the House of 
Representatives, and that said votes so purporting to be cast for her 
were a nullity.
    3. That said William C. Lawson being duly eligible and qualified to 
membership in the House of Representatives, received all the votes cast 
for a candidate who was eligible and qualified to be a Representative 
in the House of Representatives from the fourth congressional district 
of Florida and should, therefore, be declared the only duly elected and 
qualified Member of the House of Representatives from the said 
congressional district.
    There was no charge by the contestant of any fraud in the election 
in question, and the eligibility of Ruth Bryan Owen revolved upon the 
issue as to whether she had been an American citizen for seven years 
within the meaning of paragraph 2 of section 2, Article I of the 
Federal Constitution.

                               the facts

    The contestee, Ruth Bryan Owen, was born in Jacksonville, III., 
United States of America, on October 2, 1885, and resided in the United 
States of America until her marriage on May 3, 1910, to Reginald Altham 
Owen, a British subject. On the day of her marriage, she left the 
United States with her husband and resided in England with him for 
approximately the next 10 years. On May 30, 1919, she returned to the 
United States with her husband, and on the 1st day of September, 1919, 
both Mr. and Mrs. Owen made their home in Florida where they resided 
until the death of Mr. Owen which occurred on December 12, 1927. Mrs. 
Owen still continues to reside in Florida.
    On the 23d day of January, 1925, Mrs. Ruth Bryan Owen petitioned 
the United States Federal Court for the Southern District of Florida 
for naturalization, and on the 27th day of April, 1925, she was duly 
declared a naturalized American citizen by Judge Rhydon M. Call, the 
duly constituted judge of such court. A certificate of naturalization 
was duly issued to Mrs. Owen on the said 27th day of April, 1925.
    Mrs. Ruth Bryan Owen was a candidate on the Democratic ticket for 
election to the office of Representative in Congress from the fourth 
congressional district of Florida in the election duly held on the 6th 
day of November, 1928. In that election it is conceded that 67,130 
votes were cast for her by duly qualified voters of her district, and 
in an election legally held. In the same election 36,288 votes were 
cast by duly qualified voters in the said district for William C. 
Lawson, who ran on the Republican ticket as a candidate for election to 
the office of Representative in Congress from the fourth congressional 
district of Florida.

[[Page 1524]]

    the constitutional provision and federal laws affecting the case

    Paragraph 2 of section 2, Article I of the Constitution reads as 
follows:

         No person shall be a Representative who shall not have 
     attained to the age of 25 years, and been 7 years a citizen 
     of the United States, and who shall not, when elected, be an 
     inhabitant of that State in which he shall be chosen.

    Paragraph 1, section 3 of the Federal expatriation act of March 2, 
1907, reads as follows:

         That any American woman who marries a foreigner shall 
     take the nationality of her husband. At the termination of 
     the marital relation she may resume her American citizenship, 
     if abroad, by registering as an American citizen within one 
     year with a consul of the United States, or by returning to 
     reside in the United States, or, if residing in the United 
     States at the termination of the marital relation, by 
     continuing to reside therein.

    The so-called Cable Act of September 22, 1922, reads as follows:

         That the right of any woman to become a naturalized 
     citizen of the United States shall not be denied or abridged 
     because of her sex or because she is a married woman.
         Sec. 2. That any woman who marries a citizen of the 
     United States after the passage of this act, or any woman 
     whose husband is naturalized after the passage of this act, 
     shall not become a citizen of the United States by reason of 
     such marriage or naturalization; but, if eligible to 
     citizenship, she may be naturalized upon full and complete 
     compliance with all requirements of the naturalization laws, 
     with the following exceptions: (a) No declaration of 
     intention shall be required; (b) in lieu of the 5-year period 
     of residence within the United States and the 1-year period 
     of residence within the State or Territory where the 
     naturalization court is held, she shall have resided 
     continuously in the United States, Hawaii, Alaska, or Puerto 
     Rico for at least one year immediately preceding the filing 
     of the petition.
         Sec. 3. That a woman citizen of the United States shall 
     not cease to be a citizen of the United States by reason of 
     her marriage after the passage of this act, unless she makes 
     a formal renunciation of her citizenship before a court 
     having jurisdiction over naturalization of aliens: Provided, 
     That any woman citizen who marries an alien ineligible to 
     citizenship shall cease to be a citizen of the United States. 
     If at the termination of the marital status she is a citizen 
     of the United States she shall retain her citizenship 
     regardless of her residence. If during the continuance of the 
     marital status she resides continuously for two years in a 
     foreign State of which her husband is a citizen or subject, 
     or for five years continuously outside the United States, she 
     shall thereafter

[[Page 1525]]

     be subject to the same presumption as is a naturalized 
     citizen of the United States under the second paragraph of 
     section 2 of the act entitled ``An act in reference to the 
     expatriation of citizens and their protection abroad,'' 
     approved March 2, 1907. Nothing herein shall be construed to 
     repeal or amend the provisions of Revised Statutes 1999 or of 
     section 2 of the expatriation act of 1907 with reference to 
     expatriation.
         Sec. 4. That a woman who, before the passage of this act, 
     has lost her United States citizenship by reason of her 
     marriage to an alien eligible for citizenship, may be 
     naturalized as provided by section 2 of this act: Provided, 
     That no certificate of arrival shall be required to be filed 
     with her petition if during the continuance of the marital 
     status she shall have resided within the United States. After 
     her naturalization she shall have the same citizenship status 
     as if her marriage had taken place after the passage of this 
     act.
         Sec. 5. That no woman whose husband is not eligible to 
     citizenship shall be naturalized during the continuance of 
     the marital status.
         Sec. 6. That section 1994 of the Revised Statutes and 
     section 4 of the expatriation act of 1907 are repealed. Such 
     repeal shall not terminate citizenship acquired or retained 
     under either of such sections nor restore citizenship lost 
     under section 4 of the expatriation act of 1907.
         Sec. 7. That section S of the expatriation act of 1907 is 
     repealed. Such repeal shall not restore citizenship lost 
     under such section nor terminate citizenship resumed under 
     such section. A woman who has resumed under such section 
     citizenship lost by marriage shall upon the passage of this 
     act, have for all purposes the same citizenship status as 
     immediately preceding her marriage.
         Note.--The italics in the foregoing act are the 
     committee's.

    It was contended by the contestant, William C. Lawson, that 
although Mrs. Owen was born an American citizen and resided here as 
such until May 3, 1910 (a period of 24 years and 7 months) that under 
the provisions of the expatriation act of Congress of March 2, 1907, 
she lost her citizenship through her marriage to a British subject. It 
is also contended that although she was admitted to American 
citizenship on April 27, 1925, through naturalization proceedings under 
the terms of the Cable Act of September 22, 1922, that nevertheless on 
the date of her alleged election to Congress on November 6, 1928, she 
had been an American citizen next preceding said election for a period 
of only 3 years, 6 months, and 9 days. It was argued that although in 
the present instance Mrs. Owen is, and always has been, loyal to and 
familiar with our American system of Government and American 
institutions, yet a term of seven years' citizenship next preceding the 
date of a Federal election must be insisted upon in all cases in 
accordance with the alleged intent of the drafters of the Constitution, 
to insure proper

[[Page 1526]]

qualification in all cases, and to protect us against foreign influence 
in the Federal Congress.
    It was pointed out by contestant's counsel that if the citizenship 
requirements of the Federal Constitution, as set forth in paragraph 2 
of section 2, Article I of the Constitution, were to be construed as 
cumulative and Mrs. Owen's term of American citizenship prior to her 
marriage were to be added to her term of citizenship subsequent to her 
naturalization, a dangerous precedent would be established and the true 
intent of the constitutional requirement in question would be 
subverted.
    The contestant thereupon asked the committee to conclude that 
inasmuch as Mrs. Owen was not a legally qualified candidate for 
election to the House of Representatives in accordance with the 
requirements of the Federal Constitution, all the votes cast for her 
were a nullity, and that William C. Lawson, the contestant, being a 
duly qualified candidate for election to the House of Representatives 
in all respects, was by virtue of the 36,288 votes cast for him under 
date of November 6, 1928, the only representative from the fourth 
congressional district of Florida legally entitled to a seat in the 
House of Representatives.
    To substantiate his contention in this behalf, the contestant 
submitted, among others, the following cases to the committee: State v. 
Frear (144 Wis. 79), Gulick v. New (14 Ind. 93); State v. Bell (160 
Ind. 61); Hoy v. State (168 Ind. 506).
    An examination of all the precedents cited by counsel for the 
contestant reveals the fact that knowledge brought home to the voters 
respecting the ineligibility of candidates for office and for which 
candidates they voted despite their knowledge of ineligibility, are 
limited to cases involving ineligibility based on a palpable physical 
fact or on an established legal fact.

    The Wisconsin case of State v. Frear embraced the following facts: 
In a primary election and after the ballots therefor had been printed, 
a candidate for the nomination as attorney general was drowned. The 
fact of his death was widely published in letters, telegrams, and 
newspapers throughout the State. Voters were urged to cast their 
ballots for the deceased candidate on the ground that the State central 
committee could fill the vacancy if he (the deceased candidate) 
received the plurality of votes in the primary election. The court 
rightly held that votes cast for a deceased person by voters who knew 
of his decease, must be regarded as so much blank paper.
    In this Wisconsin case, there was no question as to the death of 
one of the candidates for attorney general. His death was a generally 
known and physical fact. It involved no question, which under the 
Constitution and the law, must be decided by that branch of the 
Government legally authorized to pass upon the issue before the fact 
itself could be established. The Frear case and others cited are 
unquestionably good authority for the conclusion that even when a 
majority of voters cast their votes for a person who can not in any 
event take office, all votes so cast should be considered a nullity--
this on the theory that an election is held for the purpose of electing 
a candidate to office, and not for the purpose of creating a vacancy. 
As counsel for the contestant, William C. Lawson, stated, referring to 
English cases which were not cited:

[[Page 1527]]

         If a vote for a man known by the voter to be ``dead'' can 
     be counted, then ``a vote for a stick or stone'' or for ``the 
     man in the moon'' should also be counted.

    The committee agrees with counsel for the contestant that the case 
of State v. Frear and other cases cited in connection therewith are 
good authority for the proposition that where the ineligibility of a 
candidate is an established and unquestioned fact, and voters who with 
knowledge, willfully insist upon voting for a candidate physically or 
legally dead, they should lose their votes and that the remaining 
candidate, although receiving only a minority of the votes cast, is in 
fact elected.
    It is the judgment of the committee that the above cases are not 
applicable to the case of Mrs. Ruth Bryan Owen. The question of her 
citizenship and her incidental eligibility or ineligibility was a 
highly disputable question. It was not an established physical or legal 
fact. True, Mrs. Owen had sought the opinion of some of the leading law 
firms in Florida when she was a candidate for the nomination as 
Representative to Congress from the fourth congressional district of 
Florida in the 1926 primaries. These legal opinions supporting her 
eligibility were reduced to a written statement over the signatures of 
the various lawyers consulted. The statement was later printed and 
freely circulated in the district in question during the primary 
campaign of 1926. However, it did not reduce the question to a settled 
fact.
    Indeed Mrs. Owen's opponents took the opposite view respecting her 
eligibility not only in the primary campaign of 1926, but also in the 
primary campaign and the ensuing elections of 1928. Press statements as 
to her eligibility were freely discussed and circulated, and the 
question of her citizenship was conceded by both candidates to have 
been in issue not only in her primary campaign of 1926, but in the 
primary campaign and the ensuing elections of 1928.
    Neither Mrs. Owen's attorneys nor the people of Florida had 
authority to determine the question of citizenship involved. Her 
citizenship status was defined by provisions both of the Federal 
Constitution and of the Federal laws open to various constructions. The 
power to settle the disputed question as to the citizenship status of 
Mrs. Owen rests solely with the House of Representatives which, under 
the provisions of paragraph 1 of section 5, Article I of the Federal 
Constitution:

     shall be the judge of the elections, returns, and 
     qualifications of its own members.

    Not through any exercise of the right of suffrage by the people of 
Florida, but only through action by the Federal Congress is the 
citizenship status of Mrs. Owen to be removed from the realm of mere 
contention and established in fact.
    Your committee, therefore, concludes inasmuch as the voters of the 
fourth congressional district of Florida cast a majority of votes for 
Mrs. Owen in an election legally held, not in the face of an 
established fact of ineligibility but rather in the face of an 
opponent's contention as to ineligibility, that their votes were not 
thrown away. It is the view of your committee that the

[[Page 1528]]

majority vote in question expressed a preference for Mrs. Owen, who was 
physically able to take a seat in the House of Representatives, and who 
could not legally be precluded therefrom except by action of the House 
of Representatives.
    Your committee proceeds from this conclusion to the next question 
involved as to whether Mrs. Ruth Bryan Owen had on November 6, 1928, 
been seven years a citizen of the United States within the meaning of 
the Federal Constitution, as set forth in paragraph 2 of section 2, 
Article I.
    By a unanimous vote, your committee concludes that Mrs. Owen 
measures up to the requirements of the Constitution as to seven years' 
citizenship. Five members of the committee, namely, Representatives 
Letts, Goodwin, Kading, Newhall, and Johnston, arrive at their 
conclusion through a consideration of the constitutional provision 
alone. They believe that the 7-year period of citizenship is 
cumulative; that it was not the intent of the framers of the 
Constitution, and that it is not now to be construed as meaning that 
the seven years' citizenship qualification for a Representative in the 
House of Representatives is to be limited to the seven years next 
preceding the date of election.
    They take the position that in construing any section of the 
Constitution, the ordinary meaning should be ascribed to its language 
and that when that meaning is apparent on the face of the instrument, 
the language used must be accepted both by legislatures and by courts, 
without adding to it or taking from it. Their view is that if the 
framers had intended the seven years' citizenship to have been limited 
to the seven years next preceding an election, they would have said so. 
Their final conclusion is that inasmuch as Mrs. Ruth Bryan Owen had 
been a citizen of the United States for 24 years and 7 months prior to 
her marriage, and for 3 years and 6 months subsequent to her 
naturalization, she enjoyed an American citizenship extending over a 
period of 28 years and 1 month, and is, therefore, eligible to a seat 
in the Federal House of Representatives.
    The four remaining members of the committee, namely, 
Representatives Beedy, Esliek, Hall, and Clark, base their conclusion 
upon another line of reasoning. They reason that the 7-year period of 
citizenship required of eligibles to a seat in the House of 
Representatives must be construed as meaning seven years next preceding 
the date of election. Their view is that while Mrs. Owen lost her 
American citizenship under the expatriation act of March 2, 1907, by 
her marriage to an alien on May 3, 1910, she nevertheless regained her 
American citizenship through naturalization under the terms of the 
Cable Act of September 22, 1922. They concede that the Cable Act was 
not retroactive in the sense that its enactment, though it expressly 
repealed section 3 of the expatriation act of 1907, restored lost 
citizenship.
    Their view is that the Federal Congress which had the power to 
deprive Mrs. Owen of her American citizenship under the expatriation 
act of 1907, also had the power to pass a law which set out the 
procedure by means of which she could recover her American citizenship. 
This she did when she became a naturalized American citizen under the 
provisions of section 2 of the Cable Act. They hold that though Mrs. 
Owen lost her United States citizenship under the expatriation act of 
1907 by reason of her marriage to an

[[Page 1529]]

alien, she nevertheless regained it under the Cable Act which, in the 
concluding sentence of section 3, declares that:

     after her naturalization she shall have the same citizenship 
     status as if her marriage had taken place after the passage 
     of this act.

    That status, say those of the committee who insist upon a 7-year 
period of American citizenship next preceding the election, is clearly 
set forth in the first sentence of section 3 of the Cable Act, which 
declares that:

     a woman citizen of the United States shall not cease to be a 
     citizen of the United States by reason of her marriage after 
     the passage of this act . . . .

    They hold that the Cable Act passed subsequent to the adoption of 
the nineteenth amendment, which gave the ballot to the American women, 
should be viewed in the light of that amendment as but another step in 
extending the rights and privileges of American women. Their view is 
that it should be liberally construed as a measure intended to right an 
injustice done American women by the act of 1907, and to place her upon 
an equality with American men who never lost their American citizenship 
through marriage with an alien.
    Their conclusion is that Mrs. Ruth Bryan Owen, through 
naturalization, enjoys the same status as an American woman who marries 
an alien subsequent to the passage of the Cable Act, namely, the status 
of one who never loses her citizenship. In the terms of the Cable Act 
itself, hers is the status of a woman who:

     does not cease to be a citizen of the United States by reason 
     of her marriage.

    It is, therefore, the unanimous conclusions of your committee that 
Ruth Bryan Owen meets the requirements of one eligible to a seat in the 
House of Representatives, as set forth in paragraph 2 of section 2, 
Article I of the Constitution.
    For the above reasons, the committee unanimously recommends the 
adoption of the following resolutions (H. Res. 241):

         Resolved, That William C. Lawson was not elected a 
     Representative to the Seventy-first Congress from the fourth 
     congressional district of the State of Florida and is not 
     entitled to a seat therein.
         Resolved, That Ruth Bryan Owen was duly elected a 
     Representative to the Seventy-first Congress from the fourth 
     congressional district of the State of Florida and is 
     entitled to retain her seat therein.

[[Page 1530]]

                       additional majority views

    The undersigned members of the committee, constituting a majority 
thereof, feel that they may very properly amplify the report of the 
chairman by setting out the reasoning which leads them to their 
conclusion.
    It is to be regretted that the committee is not in harmony upon the 
constitutional question involved. That question far outweighs the 
consideration personal to Mrs. Owen, which is unanimously reached by 
the committee.
    The majority would concede that Mrs. Owen comes within the letter 
and the spirit of the constitutional provision which requires that she 
shall have been seven years a citizen of the United States. The 
minority hold that she was not so qualified to be a candidate for a 
seat in the House of Representatives because they conclude that the 
seven years' citizenship required must have been the seven years next 
preceding the election at which she was chosen to represent her Florida 
district.
    The minority think that her naturalization under the Cable Act 
restored the citizenship which she had lost through expatriation by her 
marriage to a British subject in 1910. They resort to the last sentence 
in section 4 of the Cable Act, which provides: ``After her 
naturalization she shall have the same citizenship status as if her 
marriage had taken place after the passage of this act.'' They construe 
this provision of the law to restore to her the American citizenship 
which under the expatriation act was lost to her from the date of her 
marriage to a British subject until the date of her naturalization in 
1925. It is evident that less than seven years intervened between her 
naturalization in 1925 and her election in 1928. The minority contend 
that her naturalization under the Cable Act had the effect of 
obliterating the citizenship which she enjoyed or resented as a British 
subject from 1910 to 1925 and, in effect, hold that by virtue of her 
naturalization under the Cable Act she has always been an American 
citizen.
    The majority say that the language of the Cable Act above quoted 
only establishes her citizenship status after the date of her 
naturalization. This seems to be the clear meaning of the provision, if 
the words and language employed be given ordinarily accepted meaning. 
If this reasoning is not conclusive, the majority think that the 
language of section 7 of the Cable Act is not susceptible of 
misinterpretation. That section provides in specific language for the 
repeal of section 3 of the expatriation act and, in language just as 
definite and specific, settles the question here in dispute. It 
provides: ``Such repeal shall not restore citizenship lost under such 
section. . . .''
    To give the constitutional provision the construction asked by the 
minority and to give the Cable Act the meaning ascribed to it by such 
minority is to present an inconsistency. They give the constitutional 
provision a strict interpretation, saying in effect that Mrs. Owen is 
ineligible unless she was a citizen for the seven years next preceding 
her election. They admit she did not enjoy American citizenship during 
such seven years. They would, however, allow Congress to contravene 
this constitutional requirement and supplement her citizenship of less 
than four years, extending from 1925 to 1928, by ascribing American 
citizenship to her during the period of her expatriation.

[[Page 1531]]

    The majority say that the legal fiction may not be indulged. It is 
contrary to considerations of public policy, logic, and reason. It is 
abstractly impossible. It would make untrue an obvious, evident, and 
known fact, to wit, that Mrs. Owen was a British subject from the year 
1910 until her naturalization in 1925. Indeed, Mrs. Owen could not be 
heard to dispute the fact, having applied for naturalization as a 
British subject. When she received her certificate of naturalization 
she forswore allegiance to the King of Great Britain.
    Let us indulge in a few questions and answer them for ourselves.
    Question. Who is the judge of the qualifications of Members of the 
House of Representatives?

    Answer. The Constitution provides that the House of Representatives 
shall be such judge.
    Question. Does the Senate have anything to say with respect to the 
qualifications of a Member of the House?
    Answer. No.
    Question. Does the President have anything to say with respect to 
the qualifications of a Member of the House?
    Answer. No.
    Question. Is the House of Representatives alone responsible for the 
enactment of the Cable Act?
    Answer. No. The Senate concurred in its enactment and it required 
the signature of the President.
    Question. Have we then permitted the Senate and the President to 
take from the House its exclusive right to judge the qualifications of 
its Members?
    In our view the minority sets up a man of straw and then proceeds 
to rough it with him. They read into the constitutional provision a 
requirement that the seven years' citizenship shall be next preceding 
the election. Having read this requirement into the constitutional 
provision, they find it necessary to resort to mental acrobatics to 
avoid what they have done and to give Mrs. Owen the seat which she 
claims. This they do by giving the Cable Act a meaning which the 
language does not warrant and which is in direct conflict with the 
plain language in section 7 thereof.
    Obedience to conscience and duty requires us to give consideration 
to the constitutionality of the Cable Act. That no court has declared 
the Cable Act unconstitutional is of no moment. For the purposes here 
considered the constitutionality of the Cable Act can only be 
determined by the House of Representatives. There is no other forum in 
which such constitutional question may be debated and no other body 
which can decide the question. The Constitution provides that the House 
of Representatives shall be the judge of the election and 
qualifications of its members. We must face that responsibility. We 
assumed such duty in full measure when, as individuals, we subscribed 
to the oath of office, the chief and central obligation of which 
requires us to support and defend the Constitution of the United 
States.
    If the Cable Act may be interpreted and made available for Mrs. 
Owen, as the minority contend, it must follow as the night the day that 
Congress may, if it wishes, provide that an alien shall, after his 
naturalization, have

[[Page 1532]]

the status and enjoy the privileges of a natural born citizen, making 
him eligible for the office of President of the United States, contrary 
to the letter and spirit of the constitutional inhibition in that 
regard; and making him eligible immediately after his naturalization, 
as far as citizenship is concerned, for the office of Representative in 
Congress.
    We of the majority think, if we accept the constitutional provision 
as written by the fathers, it is free from difficulty; that doubt only 
arises when we seek to change it by writing into it something not said 
by the framers. A review of the debates and proceedings of the 
Constitutional Convention convinces us that the omission of words, such 
as the minority would read into the provision, was not a matter of 
inadvertence.
    The framers of the Constitution sought to avoid language or 
phraseology which is complex and shunned any hidden meaning. They 
employed language which is clear, simple, and easy of understanding. 
The ordinary rules of construction are natural. They forbid the adding 
of any intent not reasonably within the meaning of the language.
    The fathers sought to place in the Constitution only principles 
fundamental in government. They undertook the task with imagination, 
with a large vision of things to come. By deliberate design they stated 
fundamental principles broadly expressive of the purposes sought to be 
accomplished. It was recognized that progress, incident to the 
development of the country and the working out of our political 
destinies, would present to future generations concrete problems not 
foreseen by them. They wished to express the genius of a new 
government, one ``of laws and not of men.'' They wisely provided the 
skeleton which would support the living organism of a great republic, 
instituted for the government of free men. It was their desire to leave 
to Congress as fully as possible the opportunity and the responsibility 
of passing upon the qualifications of members. They deemed it wise that 
a Representative should have passed the ordinary period of education 
and should be possessed of mature judgment. They, therefore, provided 
that he shall have attained his twenty-fifth year. They considered it 
appropriate that a Representative should reflect the sentiment and 
views of his neighbors. To assure this they required that he shall be 
an inhabitant of the State in which he is chosen. The only other 
qualification was as to citizenship. The fathers very earnestly desired 
that Representatives in Congress should know our history and our 
institutions; understand our political hopes and aspirations and be in 
sympathy with them.
    It is recognized that the obvious danger sought to be avoided was 
that of foreign influences. In requiring seven years' citizenship as a 
qualification for the office of Representative in Congress, it was 
hoped to guard against this danger, but nothing was said in the 
Constitution about foreigners or with reference to foreign influences. 
The fathers met this situation as they did all others. They sought a 
general principle which would effectuate their purpose. As a compromise 
of opinion and judgment, seven years citizenship was agreed upon as the 
length of time which might reasonably produce in the mind and character 
of a citizen the attitude and qualities deemed desirable for a 
Representative in Congress. The delegates preferred flexibility which 
would yield to the judgment of future generations and were content with 
a

[[Page 1533]]

statement of the qualifications mentioned, leaving the matter of 
qualification in other respects to the House.

    Privileged resolution (H. Res. 241) was agreed to by voice vote 
after debate [H. Jour. 653, 71st Cong. 2d Sess.].

Sec. 7.3 Lawrence v Milligan, 3d Congressional District of Missouri.

    Ballots were partially recounted by an elections committee upon 
adoption by the House of a resolution authorizing subpoena of certain 
election officials, ballots, and ballot boxes.
    Report for contestee, who retained his seat.
    On June 3, 1930, Mr. Randolph Perkins, of New Jersey, by direction 
of the Committee on Elections No. 2, submitted the following 
resolution:

    Resolved, That Boude Crossett, county clerk of Clay County, Mo., 
be, and he is hereby ordered, by himself or by his deputy, to appear 
before the Committee on Elections No. 2 of the House of Representatives 
forthwith, then and there to testify before said committee in the 
contested-election case of H. F. Lawrence, contestant, against J. L. 
Milligan, contestee, now pending before said committee for 
investigation and report; and that said Crossett or his deputy bring 
with him the ballot box of Liberty North East precinct, Clay County, 
Mo., and all of the ballots contained therein, and all contents of the 
ballot box, and all papers in his possession which were used in said 
precinct at the general election held in the third congressional 
district of the State of Missouri on November 6, 1928. That said ballot 
box, ballots, and all contents of said box and papers in connection 
therewith be brought to be examined and counted by and under the 
authority of said Committee on Elections No. 2 in said case, and to 
that end the proper subpoena be issued to the Sergeant at Arms of this 
House, commanding him to summon said Crossett or his deputy to appear 
with such ballot box, ballots, and all contents of said box and papers 
in connection therewith, as witness in said case; and that the expense 
of said witness and all other expenses under this resolution shall be 
paid out of the contingent fund of the House; and that the aforesaid 
expense be paid on the requisition of the chairman of said committee 
after the auditing and allowance thereof by said Committee on Elections 
No. 2.

    Privileged resolution (H. Res. 235) was agreed to by voice vote 
without debate [72 Cong. Rec. 9960, 71st Cong. 2d Sess., June 3, 1930; 
H. Jour. 634].
    Report of Committee on Elections No. 2, submitted by Mr. Randolph 
Perkins, of New Jersey, on June 6, 1930, follows:

[[Page 1534]]

                            Report No. 1814

              Contested Election Case, Lawrence v Milligan

    The Committee on Elections No. 2, having under consideration the 
contest of H. F. Lawrence v. Jacob L. Milligan, from the third 
congressional district of Missouri, report that in this ease the notice 
of contest was duly and lawfully given. The contestee, Jacob L. 
Milligan, answered said notice, making the issues submitted to this 
committee. Proof was taken.
    This contest was regularly heard. Both the contestant, H. F. 
Lawrence, and his counsel, and the contestee, or sitting Member, Jacob 
L. Milligan, and his counsel, were present. The matters in issue were 
thoroughly investigated. Arguments of counsel were heard.
    After the regular hearing of this ease upon the record and the 
argument of counsel it was apparent that the controversy turned largely 
on the vote cast in the northeast precinct of Liberty, Clay County, 
Mo., the contestant insisting that Jacob L. Milligan, the sitting 
Member and contestee, had been accredited with 125 more votes than he 
was entitled to in said precinct; the contestant insisting that the 
correct vote in this precinct as shown by return of precinct election 
officers was 173 votes for contestant and 345 votes for the contestee 
but that the returns certified by the county canvassing board of Clay 
County showed 173 votes for the contestant and 470 votes for the 
contestee.
    The committee of its own motion directed that said original ballot 
box and ballots in said precinct be brought before the committee, that 
the count of the same might be made by said committee, which was 
accordingly done, and by said count as made by the committee it showed 
170 ballots were cast for the contestant and 474 ballots were cast for 
the contestee.
    The returns as originally certified showed that in said election 
the contestant received 32,626 legal votes and contestee received 
32,665 legal votes. As shown by the recount and the change as above set 
out the contestant received 32,623 legal votes and the contestee 
received 32.669 legal votes, or a clear majority of 46 legal votes.
    The contestee received his commission from the Governor of the 
State of Missouri and the oath of office was duly administered to him 
as a Representative in the Seventy-first Congress.
    Your committee therefore unanimously report that the contest of H. 
F. Lawrence is without merit and that the contestee, Jacob L. Milligan, 
should retain his seat as a Member of the Seventy-first Congress.
    Resolved, That H. F. Lawrence was not elected a Member of the House 
of Representatives in the Seventy-first Congress from the third 
congressional district of the State of Missouri and is not entitled to 
a seat herein.
    Resolved, That Jacob L. Milligan was duly elected a Member of the 
House of Representatives in the Seventy-first Congress from the third 
congressional district of the State of Missouri and entitled to retain 
his seat herein.

[[Page 1535]]

    Privileged resolution (H. Res. 252) agreed to by voice vote without 
debate [72 Cong. Rec. 10652, 71st Cong. 2d Sess., June 13, 1930; H. 
Jour. 685].

Sec. 7.4 Hill v Palmisano, 3d Congressional District of Maryland.

    Ballots were partially examined and recounted by an elections 
committee upon adoption by the House of a resolution authorizing 
subpena of certain election officials, ballots, and ballot boxes.
    Points of order against the filing of an elections committee report 
(on grounds that inconsistent committee actions did not authorize the 
report and that the report was not timely filed) were reserved but not 
insisted upon.
    Minority views were filed against the validity of the majority 
report.
    On Feb. 19, 1930, Mr. Bird J. Vincent, of Michigan, by direction of 
the Committee on Elections No. 2, submitted the following privileged 
resolution:

    Resolved, That Robert B. Ennis, president of the board of 
supervisors of election of Baltimore city, Bernard J. Flynn, member of 
the board of supervisors of election of Baltimore city; and Alexander 
McK. Montell, member of the board of supervisors of election of 
Baltimore city, individually and collectively as said board, and Gen. 
Charles D. Gaither, police commissioner of Baltimore city, all of the 
State of Maryland, be, and they are hereby, ordered, by themselves or 
by their deputy, to appear before the Committee on Elections No. 2 of 
the House of Representatives forthwith, then and there to testify 
before said committee in the contested-election ease of John Philip 
Hill, contestant, v. Vincent L. Palmisano, contestee, now pending 
before said committee for investigation and report; and that said 
persons or their deputy bring with them the ballot box and all the 
ballots contained therein, and all contents of the ballot box, and all 
papers in their possession which were used in the fourth precinct of 
the third ward of the city of Baltimore, Md., at the general election 
held in the third congressional district of the State of Maryland on 
November 6, 1928. That said ballot box, ballots, and all contents of 
said box, and papers in connection therewith, and also the registration 
books for said precinct, be brought to be examined and counted by and 
under the authority of said Committee on Elections No. 2 in said ease, 
and to that end that the proper subpoena be issued to the Sergeant at 
Arms of this House, commanding him to summon said persons or their 
deputy to appear with such ballot box, ballots, and all contents of 
said box and papers in connection therewith, and the registration books 
in said precinct, as witnesses in said case; and that the expense of 
said witnesses, and all other expenses under this resolution, shall be 
paid out of the contingent fund of the House; and that the aforesaid 
expense be paid on the requisition of the chairman of the said 
committee after the auditing and allowance thereof by said Committee on 
Elections No. 2.

[[Page 1536]]

    Privileged resolution (H. Res. 159) was agreed to by voice vote 
without debate [72 Cong. Rec. 3939, 71st Cong. 2d Sess., Feb. 19, 1930; 
H. Jour. 284].
    On June 14, 1930, Mr. Randolph Perkins, of New Jersey, submitted 
the report of the Committee on Elections No. 2. On presentation of the 
report for filing, Mr. Malcolm C. Tarver, of Georgia, made the 
following point of order:

    The report has not been authorized. Now, Mr. Speaker, if I may be 
permitted to go on, I will state that on June 6, 1930, the Committee on 
Elections No. 2 held the last meeting it has held, and on that day 
voted 5 to 3 against seating contestant, John Philip Hill, and it voted 
5 to 3 against throwing out the returns from the fourth precinct of the 
third ward in the city of Baltimore. The copy of the report that I hold 
in my hand is directly at variance with the action taken by the 
committee, in that the report finds that the returns from the fourth 
precinct in the third ward should be thrown out, when the committee 
voted that they should not be, and further finds that the contestant, 
if this is done, would be entitled to his seat in the House, whereas 
the committee voted to the contrary.
    There has been no meeting of the committee since then, and no 
resolution approved by the committee, although I presume that one that 
has been reported by the gentleman who is acting for the committee, 
except that the first portion of a resolution dealing with the rights 
of the contestant was approved by the committee by a vote of 5 to 3, 
finding that he was not entitled to his seat and had not been elected.
    The second part of the resolution was never placed before the 
committee, but the members of the committee were unable to agree upon 
its verbiage, and the statement was made that another meeting of the 
committee would be held in order that its verbiage might be agreed 
upon. Notwithstanding that, the gentleman purports to report to the 
House this morning a report which includes, I presume, a resolution 
which was not acted upon by the committee as to the rights of the 
contestee.

    Mr. Bertrand H. Snell, of New York, objected that the point of 
order was not properly presented at this time.
    The Speaker entertained the point of order and decided:

    Under the circumstances the Chair thinks the fair thing to do, he 
not being apprised of all the facts in connection with the matter, is 
to permit the report now to be printed, and the gentleman from Georgia 
may reserve his point of order, and if the case is called up the Chair 
will give the matter consideration.
    The Chair will permit the report to be received and printed at this 
time, but the gentleman from Georgia will have his full rights in the 
matter in case the report is called up.

[[Page 1537]]

    Thereupon, Mr. Fiorello H. LaGuardia, of New York, submitted the 
further point that the report was not in order for the reason that it 
was presented in violation of paragraph 47 of Rule XI.
    The Speaker announced:

    The gentleman from New York reserves a point of order.

    The following minority views were submitted by Mr. Lindsay C. 
Warren, of North Carolina; Mr. John J. Douglass, of Massachusetts; and 
Mr. Malcolm C. Tarver, of Georgia:

    As a premise for what we shall say, the following actions of the 
committee should be called to the attention of the House:
    First, at its meeting on June 6, 1930, the committee unanimously 
decided that aside from charges pertaining to the fourth precinct of 
the third ward in the city of Baltimore, there was nothing in the 
record authorizing interference with the result of the election as 
certified by the proper officials of the State of Maryland.
    Second, by a vote of 5 to 3, the committee decided that the 
evidence did not justify throwing out the returns of said precinct.
    Third, the effect of these findings being necessarily a conclusion 
that the contestant did not receive a majority of the votes cast at the 
election, the committee voted, 5 to 3, that the contestant was not 
elected and is not entitled to a seat in this House.
    Fourth, a motion then being offered to the effect that the 
contestee was not elected and is not entitled to a seat in the House, 
two members of the majority indicated their inability to support such a 
motion, and while no vote was taken, these members, with the minority 
members, constituted a majority of the committee.
    Fifth, a motion then being offered to the effect that the contestee 
is not entitled to a seat in the House, was adopted, 5 to 3, and it was 
agreed to ask for an extension of time from the House in which to agree 
upon the form of resolution to be reported and upon the contents of the 
majority report.
    These recitals are sufficient to indicate that five members of the 
committee feel that Mr. Palmisano was elected; that of these, two feel 
that, although elected, he ought not to be seated, and that, combining 
the last two named with three who feel that he was not elected, 
produces a combination of two minorities to constitute a majority who 
are willing to report that he is not entitled to his seat. There is, 
therefore, no view of the ease which may properly be referred to as a 
majority view; there are three minority views; and it is fair to assume 
that the troubles of the majority in reconciling their views would be 
further accentuated if the beloved chairman of the committee had not 
been prevented from attending its session by illness. This statement is 
justified from remarks made by the chairman appearing in the hearings, 
the first of which, upon the opening of the ease, we quote:

         The Chairman. My own impression is that there is a great 
     deal in the record that is not very material to the 
     determination of the

[[Page 1538]]

     issue, which is, which of these gentlemen was elected by the 
     majority of the legal ballots. (Hearings, p. 1.)

    If the chairman is correct in the position stated, and we insist 
that he unquestionably is, then we respectfully insist that a majority 
of the committee has determined that question in favor of the 
contestee; and it has been possible to change this situation only by 
combining with the minority of three who did not believe Palmisano 
elected two gentlemen who felt justified in voting not to seat him, 
although elected. Since the majority report would not have been 
possible without them, we address ourselves first to their viewpoint.

    The following additional minority views were submitted by Mr. John 
J. Douglass, of Massachusetts; Mr. Lindsay C. Warren, of North 
Carolina; and Mr. Malcolm C. Tarver, of Georgia:

                        Report No. 1901, Part 2

               Contested Election Case, Hill v Palmisano

    Under permission granted by the House on June 14, 1930, the 
undersigned members of the Committee on Elections No. 2 respectfully 
submit the following additional minority views in the contested 
election case of John Philip Hill v. Vincent L. Palmisano, third 
congressional district of Maryland.
    In filing our original views, we could not anticipate that, 
notwithstanding the committee had voted 5 to 3 in favor of a resolution 
declaring that ``John Philip Hill was not elected, and is not entitled 
to the seat,'' a report would be submitted containing no such 
recommendation.
    Nor could we have anticipated that, notwithstanding the committee 
had voted 5 to 3 against discarding the returns from the fourth 
precinct of the third ward in the city of Baltimore, a report would be 
submitted recommending that the returns from the precinct mentioned be 
discarded.
    Far less reason did we have to assume that the report would in 
effect recommend the seating of the contestant, directly at variance 
with the action of the committee. That a formal resolution to this 
effect was not reported is immaterial. No resolution was reported, not 
even the one providing that Hill was not elected and should not be 
seated, which was approved by the committee. The report, omitting this 
usual feature of a report in such a case, is so drawn as to form the 
proper basis for a resolution of no other character than that the 
contestant was elected and should be seated, and the contestee was not 
elected and should not retain his seat. In view of these facts, and in 
view of the fact that there is, or should be, in the possession of the 
acting chairman of the committee, two roll calls taken by him upon the 
questions detailed above, showing the action of the committee to be 
directly contrary to the report, we have preserved a point of order 
against the alleged report, upon the ground that it was not authorized 
by the committee; and by filing minority views, we do not waive nor 
intend to waive our right to insist thereupon.

[[Page 1539]]

    We judge from the statement of the acting chairman when the point 
of order was made that he does not question the facts above stated, but 
takes the position that the report is not susceptible of the 
construction we have placed upon it. It is only necessary to point 
out--
    1. That the report entirely omits to report the action of the 
majority of the committee upon the resolution finding that Hill was not 
elected and is not entitled to the seat.
    2. That the report finds that if the fourth precinct of the third 
ward is thrown out, Hill was elected, and then proceeds to find that 
the count from this precinct should be disregarded. It is impossible to 
gather from this any other meaning than that the report is in favor of 
seating Hill, directly in opposition to the action of the committee.
    We know of no case in the history of this House where action of so 
unfair a character in the preparation and submission of a report has 
ever been resorted to.

    Returns.--Partial rejection of returns for fraud and irregularities 
by election officials and party workers that were sufficient to change 
the election result, and for fraud (insufficient to change the result) 
by contestee, was recommended by an elections committee majority.
    The report of an elections committee majority recommended the 
unseating of contestee but was not accompanied by a resolution.
    Minority views were filed recommending a resolution that contestee 
retain his seat and that contestant be held not entitled to the seat.
    There was no House disposition of the contest, and contestee 
retained his seat.

                            Report No. 1901

    At the general election held on the 6th day of November, 1928 in 
the third congressional district of the State of Maryland, the 
contestant, who was the candidate for Representative in Congress of the 
Republican Party, was credited with, according to the official returns, 
27,047 votes, and the contestee, who was the candidate of the 
Democratic Party, was credited with, according to the official returns 
27,377 votes.
    Thus, according to the official returns, the contestee had a 
majority of 330 votes, and it was upon this majority, so found, that 
the certificate of election was issued to the contestee, and he was 
seated in the House of Representatives. . . .
    The decision of the case hinges very largely upon two questions, 
the first of which is the conduct of the election and the canvass in 
the fourth precinct of the third ward of the city of Baltimore, and 
second, the personal knowledge and conduct of the contestee, Palmisano.
    The election board returns from the fourth precinct of the third 
ward gave Palmisano 416 votes and Hill 61 votes, a difference of 355 
votes, an amount greater than Palmisano's apparent plurality upon the 
total official returns.

[[Page 1540]]

    If the returns from this precinct be counted, it will give a 
majority to the contestee. If the vote be thrown out, it will result in 
giving a majority to the contestant.

  the conduct of the election and the canvass of votes in the fourth 
   precinct of the third ward of baltimore, palmisano's home precinct

    . . . This committee finds that the election board in the fourth 
precinct of the third ward flagrantly disregarded every provision of 
the election laws of the State of Maryland with respect to the taking 
the ballots from the box; the counting, recording, and certification of 
the ballots in that precinct.
    No attempt whatever was made by the election board to follow the 
law as to counting, recording, or certifying the vote in this precinct.
    The certificate of the election board was made out and signed in 
blank by the election officers before the polls were closed. No 
reliance can be placed upon such a certificate. Later, the figures were 
filled in over the signatures of the members and indicated that 
Palmisano received 416 votes, and Hill received 61 votes. In fact, this 
is not a certificate. It is merely a paper signed in blank. The filling 
in of the figures over the signatures to make it appear to be a 
certificate of return did not make it such. The election officers 
opened the door to a fraudulent return when they signed the blank 
certificate.

    In every important particular this election board set itself above 
the laws and conducted the count and tally in a manner to suit 
themselves, and without reference to the rights of the voter.
    In the total of the vote upon which the certificate of election of 
the contestee was based, the 416 votes given him in this certificate 
furnished more than his entire plurality in the whole election 
district. We do not consider that any reliance can be placed on this 
return, especially in view of the way the votes were not counted or 
tallied in accordance with the law.
    The law is clear in its provision that the judges shall open the 
ballots and that the ballots shall be canvassed separately by them, one 
by one. This was not done. The ballot box was opened and unauthorized 
persons dipped their hands into the box and took out ballots in 
bunches. In fact, one witness, who was not a member of the election 
board, says that he took all of the ballots out of the box in bunches. 
It is perfectly clear that the law requires that the judges shall 
withdraw the ballots one by one and that the ballots shall be read 
separately when taken out of the box, and that the tallies shall be 
made as the ballots are read. No such thing was done. Four or five of 
Mr. Palmisano's ward workers came into the polling place immediately 
after the closing of the ballot box, and they acted as though they were 
members of the election board. That is, they participated in 
withdrawing the ballots from the boxes, distributing them around the 
room, arranging and rearranging their order, counting or pretending to 
count them, and announcing results or imaginary results from the 
ballots.
    The ballots were distributed around the room, in which, as stated, 
at least four unauthorized persons were assuming to participate in the 
duties of the election board. The judges did not call out each name and 
the office for which it was designated and no tallies made from reading 
of the ballots (ex

[[Page 1541]]

cept possibly the so-called split ballots), but on the contrary, 
separate piles of ballots were made in various parts of the room. Some 
ballots were placed on a small table, which one witness says was only 
about 24 by 24 inches, other ballots were placed on chairs and some 
witnesses says ballots were placed on the floor. There was apparently 
general confusion in the room caused by the election officers or some 
of them, and the four Palmisano ward workers, while sorting or 
shuffling of the ballots took place. This was done before any ballots 
was counted, and continued after the alleged counting began. Protests 
were made by some of the election officers against this method of 
handling the ballots, but the protests were unheeded by the judges of 
election.
    This general assorting, assembling, and segregating of ballots was 
said to be done with the avowed purpose of separating the ballots into 
separate piles or packages of what were supposed to be straight 
Democratic ballots, straight Republican ballots, and split ballots. 
This took place in a small and crowded room and was participated in 
with a great deal of activity on the part of outsiders, who had no 
right to touch the ballots. It is impossible for your election 
committee to know whether or not the ballots eventually assorted into 
piles of so-called straight ballots and split ballots, were the ballots 
actually cast by the voters in the ballot box, or ballots largely 
substituted by the unauthorized and overzealous and active ward workers 
of the contestee. There is no doubt that there was ample opportunity 
for the substitution of ballots. The opportunity was there. All it 
needed was the desire to substitute ballots. Of those participating in 
this illegal proceeding were at least four ward workers of Palmisano, 
who during practically the entire election were drumming up votes for 
him. Their job was to get votes for Palmisano, and when they assumed 
the job of assisting in the arranging, segregating, and counting of the 
ballots, there is no reason to believe that they laid aside their 
partisanship, and that they instantly ceased to be anxious for 
Palmisano's election, and that their assiduity was instantly chastened, 
so that they would carefully guard the rights of Palmisano's opponent.
    We hold that in a hotly contested election, like the one under 
consideration, opportunity to substitute ballots, coupled with a 
reasonable degree of probability of desire to substitute ballots, is 
sufficient justification for the committee to believe that some 
substitutions actually took place, and if the other acts of the 
election board are open to question and suspicion, and contrary to the 
plain provisions of the statute, the committee is justified in refusing 
to condone the election officers' violation of law. This necessitates 
disregarding the certificate of the election board, and a refusal in 
this ease to credit the contestee with 355 votes over his opponent in 
this precinct.
    The count was not made by examining the ballots and ascertaining 
for whom the votes were cast, as required by the election law. After 
the sorting and shuffling of the ballots, the so-called straight 
Republican and straight Democratic ballots were placed in piles and 
counted by fingering over and counting the edges of the ballots, one 
after the other, and a count made of the number of ballots in each 
particular pile, and announcement made by election officers or ward 
workers, as the case might be, ``So many straight

[[Page 1542]]

ballots for So-and-So.'' In doing this, the names on the ballots were 
not examined, or read by the judges, nor were they called off, but it 
was announced in a general way, such as ``100 straight Democratic 
ballots,'' or ``10 straight Republican ballots,'' or whatever the 
supposed count might be. While this was going on, there was an effort 
made to actually count the split ballots. That is to say, to count the 
split ballots for the top of the ticket. It is perfectly clear from the 
evidence that persons were attempting to call off the names on the 
split ballots while other persons were shuffling or sorting, or 
apparently segregating straight ballots.
    That the election officers in this district were guilty of the 
grossest kind of fraud on the electorate, is demonstrated by the fact 
that on the ballot there was a State constitutional provision to be 
voted ``for'' or ``against.'' No count whatever was made by anyone, of 
the votes for this provision or against it. The election officers did 
not even examine the ballots for the vote on this question. They were 
not interested in the subject. The fact that the fundamental law of the 
State of Maryland was proposed to be changed, and that the rights of 
the people of the entire State affected, did not impress this election 
board sufficiently to cause them to count the votes either for or 
against the constitutional amendment. Those who were conducting the 
count, including the four unauthorized ward workers of Palmisano, were 
so interested in the top of the ticket, including Mr. Palmisano's 
election, that they not only refused to count the votes for and against 
the constitutional amendment, but actually entered into a fraudulent 
agreement to make a false return with respect to them, and did make a 
false return and certify them as a certain per cent for and against.
    On the ballot also were two propositions for amendments to the city 
ordinances of Baltimore. These received exactly the same kind of 
treatment as did the proposed amendment to the constitution of the 
State. No election officer counted one vote for the amendment, or for 
the ordinances, and no election officer counted one vote against them. 
What they did was to actually enter into a conspiracy by which they 
agreed to report false and arbitrary figures on the amendment and 
ordinances and falsely certified that the result of the election in 
that precinct was 40 votes for the constitutional amendment and 15 
against, and 30 votes for ordinance No. 539 and 20 votes against, and 
35 votes for ordinance No. 538 and 25 against, and this without 
counting a single vote for or against the constitutional amendment, or 
for or against either ordinance. And under this return, acknowledged by 
themselves to be false and fabricated this election board signed a 
certificate as follows:

         We do certify that the above statement is correct in all 
     respects, with this our hands and seals this 6th day of 
     November, 1928.

    With this acknowledged false certificate and false return 
confronting your committee, it can not place any reliance upon the 
action of this election board nor rely upon the integrity of the 
ballots it placed on a string and deposited in the ballot box after the 
alleged count.

[[Page 1543]]

    We hold that where election officers are so derelict in their duty 
and so easy of conscience as to enter into an arrangement not to count 
the votes for a constitutional amendment or for city ordinances, but on 
the contrary, agree to put down a false return on these votes, that 
their returns are entirely unreliable, so far as the balance of the 
tickets is concerned.
    The election officers in their count were so eager to make some 
sort of showing on the top of the ticket that they failed to pay 
attention to the Socialist vote, and did not count or correctly record 
it.
    The conduct of the election board was undoubtedly largely 
influenced by the four unauthorized ward workers of Mr. Palmisano, who 
were unlawfully participating in the count, and the result of their 
participation was in some degree, to intimidate at least one or two of 
the Republican election officers. There is evidence that Republican 
members of the board were denied inspection of some of the ballots 
being counted by contestee's ward workers. Protests of election 
officers on the Republican side were disregarded by a majority of the 
election officers, and one election officer was so far intimidated that 
she was afraid to enter a protest.
    This committee holds that the conduct of the election board in this 
precinct with respect to the custody, count, tally, and certification 
of ballots was in total disregard of and disobedient to the provisions 
of the laws of the State of Maryland. That the certificate of return of 
416 votes for Palmisano and 61 for Hill, is unreliable and incorrect 
and untrustworthy. That the tally sheets in this precinct are false and 
fraudulent tally sheets. That the count of the vote is unreliable and 
uncertain, and participated in by Palmisano's workers and is tainted 
with fraud. That the election officers were guilty of false and 
fraudulent returns in respect to the Socialist vote, the vote for and 
against the constitutional amendment and the vote for and against the 
city ordinances. That the ballots were not counted by the election 
officers in accordance with the law, and by reason of the false and 
fraudulent and illegal conduct of the election board and other 
unauthorized persons participating in the count, that this committee is 
not justified in giving Mr. Palmisano 355 votes in excess of Hill's 
vote in this precinct
    We can not and do not place the seal of approval on the conduct of 
this election board in this precinct nor accept the ballots and returns 
as genuine, and this, when taken in connection with the personal 
conduct and knowledge of Palmisano hereinafter considered, requires us 
to report that he was not elected and should not retain his seat in 
this House.

     the personal knowledge and conduct of the contestee, palmisano

    Palmisano resided at 320 High Street, Baltimore, in the precinct 
dealt with above in this report.
    He was the Democratic executive in the ward and was conversant with 
this precinct and its voters. He spent a large part of election day, 
1928, in and about the fourth precinct of the third ward, and near the 
end of the day, he supervised his ward workers from that polling place, 
sending them out to bring in votes. There were registered from 
Palmisano's house in this precinct, his brother-in-law Vincent Fermes, 
and his wife Anna Fermes. The

[[Page 1544]]

undisputed fact is that both Vincent and Anna Fermes resided in 
Hagerstown, Md., and had resided there for several years and were 
voters there.
    The names of both Vincent and Anna Fermes were voted on from 
Palmisano's residence at the election on November 6, 1928. Vincent's 
name was voted on just before the polls closed, being the next to the 
last vote cast, and while Palmisano was at the polling place.
    Palmisano knew that his brother-in-law and sister-in-law were not 
entitled to vote in his precinct and knew that they were not residing 
in his home. He knew that they actually lived in Hagerstown.
    These votes so cast on the names of Vincent and Anna Fermes were 
illegal and fraudulent, and in the judgment of your committee, were 
cast with the knowledge, consent, and approval of the contestee, 
Palmisano.
    The efforts of contestee's attorney to explain away the voting on 
the names of Vincent and Anna Fermes only got the contestee into deeper 
water.
    In the first hearing before the committee, counsel for contestee 
questioned the authenticity of the markings on the registration and 
poll lists showing that contestee's brother-in-law and wife had voted 
from contestee's home, by innuendo and finally, direct accusation, 
accused the agents of the contestant with being responsible for the 
record and having changed the same for the purpose of casting suspicion 
upon contestee. Upon opening the ballot box, an examination of the 
ballots and poll books therein contained it was conclusively 
demonstrated that the questioned votes had in fact been cast as shown 
by the records questioned by the contestee. At the final hearing of 
this case, contestee's counsel was questioned as to what his position 
then was under the evidence as disclosed by the ballot boxes.
    We find as a fact, that the evidence shows conclusively that the 
contestee participated in the voting activities of the day in his 
precinct and had knowledge of the fraudulent voting on the names of 
Anna and Vincent Fermes, and another; and that his workers were in 
large part responsible for the illegal and fraudulent conduct at the 
polling place after the ballot box was opened for counting the vote.
    It may be contended that if fraud was committed it was purged by 
the recount of the ballots in this box by the committee. We hold that 
inasmuch as the recount proved conclusively the fraudulent voting on 
the name of Anna Fermes and Vincent Fermes, close relatives of the 
contestee, registered from his house, as well as others, the count by 
the committee can not be taken to purge the fraud and give the 
contestee a seat in this body. Those who perpetrate fraud always make 
an effort to have the results appear to be genuine. It may be that the 
votes taken from the box by the committee and counted were in large 
part actually cast by voters in that precinct; but the committee does 
not know whether they were or not and does not find that they were, and 
it is impossible for anyone to find out whether they were or not.
    Having first determined that the conduct of the count, tally, and 
the certificate of the election officers was entirely contrary to law 
and that opportunity had been afforded by the election officers for 
partisan workers of the contestee to not only participate in the 
handling of the ballots, but in the

[[Page 1545]]

removing from the ballot box, sorting, shuffling, and pretended count 
thereof, we have come to the conclusion that we can say that the 
ballots counted by the committee were genuine ballots cast by the 
voters. For this reason, and in view of the committee's findings that 
Palmisano was personally chargeable with fraud, we find that he was not 
elected, and that he should not be permitted to retain his seat in the 
House.

    The following is from the initial minority views submitted by Mr. 
Lindsay C. Warren, of North Carolina; Mr. John J. Douglass, of 
Massachusetts; and Mr. Malcolm C. Tarver, of Georgia.
    Two of the Members constituting the majority contend:

    . . . that acts of fraud in connection with the election in the 
fourth precinct, third ward, were committed with the knowledge of the 
contestee, which, while not sufficient to change the result, or to 
authorize throwing out the precinct, yet should disqualify the 
contestee from occupying a seat in this House.
    We respectfully submit that the issue raised by the notice of 
contest in this case was simply whether or not the contestant or the 
contestee had been elected. No question of the contestee's unfitness to 
occupy his seat was raised thereby, and, under the law and repeated 
decisions of the House, no issue not raised by the contestant in 
accordance with settled procedure in contested-elections cases was 
before the committee for consideration.
    The Constitution points out the mode, and we submit that it is the 
only mode, for unseating a Member who for any cause is unfit or 
unworthy to hold his seat. The Constitution provides that the House may 
``with the concurrence of two-thirds expel a Member.'' (Constitution, 
Art. I, sec. 5, par. 2.)
    If the issue had been properly raised, we submit that there is no 
case among the hundreds of precedents in the House of Representatives 
where any sitting Member has been unseated because of alleged 
participation in isolated acts of alleged fraud, insufficient, if true, 
to have affected the result of the election. . . .
    We have no fault to find with the conclusions of the three members 
who felt that because of gross fraud, rendering the ascertainment of 
the correct result at that precinct impossible, the fourth precinct of 
the third ward should be thrown out, provided the House finds that the 
evidence in the record justifies such a finding, which we most 
earnestly deny; but we do insist that the position of those who feel 
that the sitting Member should be denied his seat, although the 
precinct should not be thrown out, and although with it considered the 
contestee was elected, is untenable. With all votes which could 
possibly be attacked for illegality considered as votes for the 
contestee, when the evidence entirely fails to show for whom they were 
cast, and excluded from the count, a difference of not exceeding half a 
dozen votes could be made in the return, where as the contestee was 
elected by a majority of 330. If the entire fourth precinct of the 
third ward should be thrown out, a majority of 25 votes for the 
contestant would be established, but only three members of the 
committee thought this course justified.

[[Page 1546]]

    We now approach a discussion of the evidence alleged to support the 
findings relative to fraud in the fourth precinct, third ward, 
participated in by the contestee; but before doing so we desire to call 
the attention of the House to the manner in which at least one member 
of the majority approached a consideration of this question, and to 
submit to the House the question of whether or not, after considering 
the evidence in the case, they would not be justified in believing that 
his viewpoint must have impressed his colleagues. It will probably 
prove surprising to most of the membership of the House to know that at 
least one member of the majority of the committee believed that when a 
charge of fraud is made by the contestant in an election case, the 
burden does not rest upon him to prove it, but at once shifts to the 
contestee to show that it is not true. . . .
    At this point, we desire to indicate our severe disapproval of the 
action of the contestant in this case in making numerous serious 
allegations against the contestee and election officials of the city of 
Baltimore, which, it is not insisted, so far as we have been advised, 
by any member of the committee, are supported by any evidence at all. 
Out of 30 specifications of charges, only 3, dealing with alleged 
irregularities in the fourth precinct of the third ward in the city of 
Baltimore, appear to be held to be worthy of consideration by the 
majority of the committee . . . In addition to the above, which are 
only instances of the unsupported charges made by the contestant, we 
can not allow this case to pass into history without calling attention 
to the baseless, unnecessary, and gratuitous attack made by him upon 
the contestee (see pp. 3, 13, and 14 of contestant's brief, and also 
see evidence in record), on account of his having been once, as a young 
man, more than a score of years ago, charged with a violation of the 
naturalization laws, the contestant also making other bitter personal 
charges against him which could in no way, if true (and they are not 
sustained by the proof) affect the merits of this case. These attacks 
appear to have been made largely for the purpose of calling the 
attention of the Congress to the contestee's foreign birth, and with 
the intent to prejudice his cause by extraneous matter. . . .
    Sitting as a court, exercising judicial functions, let us find out 
what the record shows with reference to the charges of fraud in the 
fourth precinct, third ward, and the contestee's participation therein, 
which are now as we understand it, the only charges relied upon by 
contestant. We will not include a summary of the evidence of the 
multitudinous witnesses who knew nothing but who were nevertheless 
subpoenaed and testified, but we shall clearly demonstrate to any 
Member of the House who will take the trouble to make an examination of 
the record that these charges, in so far as they involve any 
culpability of the contestee, are not only not proven by any evidence, 
but that the rule laid down by Mr. Eaton has been met, and they have 
been most emphatically disproven.
    It will be observed that these charges are not stated in the notice 
of contest except in a vague, general, and indefinite way as to some of 
them, while some of them are not referred to in that notice at all. We 
do not believe that, over the protest of the contestee as set out in 
his reply to the notice of contest, these charges so vaguely and 
indefinitely made form, under the precedents and procedure of the 
House, a proper basis for the consideration of the

[[Page 1547]]

evidence introduced. In most cases, it is necessary to look to the 
evidence introduced to determine what the charges are, when they should 
be ascertainable from the notice of contest. But, assuming that the 
House may look to the evidence to ascertain the charges, and may not 
require that only charges made in the notice of contest be considered, 
we shall take them up as far as we have been able to ascertain them.
    First, with reference to the charges of illegal registration from 
the contestee's house, the record discloses that each and every voter 
registered from the contestee's house was entitled so to register at 
the time registration was had. That some of them afterwards moved away 
and were not living there at the time of the election can in no way 
affect the question of their right to register at the time they did.
    Second, with regard to the voting of some two or three of these 
persons who, before the election, had removed temporarily or otherwise, 
as one may be inclined to view the evidence, to other parts of the city 
of Baltimore, it is undisputed that many scores of Republican voters 
who had formerly resided in this precinct, or in other precincts of the 
district, upon changing their residences had been permitted to retain 
their registration in the precincts from which they removed, and voted 
in those precincts in the election herein referred to. This appears to 
have been quite a general practice, recognized as legitimate by both 
the Republican and Democratic Parties. As to whether it is permissible 
under the laws of Maryland, we do not undertake to say, while we have 
been furnished with an opinion of the attorney general of that State 
holding, in effect, that it is; but in any event, the voting of two or 
three people under these circumstances for the contestee, when so many 
voted under similar circumstances for the contestant, is a long way 
from constituting fraud, either vitiating the election, or tainting the 
contestee with personal corruption. If desired, the votes may be 
discarded, without even remotely affecting the result.
    Third, with regard to the votes of Anna and Vincent Fermes, sister-
in-law and brother-in-law of the contestee, which were cast by some 
other persons voting in their names, it should only be necessary to 
quote from the record of hearings the following statement of the 
contestant himself with reference to this matter:

         Mr. Tarver. I understand your point is that not only were 
     they [i.e., Vincent and Anna Fermes] falsely registered, but 
     that you were charging Mr. Palmisano with fraud in that he 
     was present when they voted?
         Mr. Hill. No; only that he knew that they registered.

    Notwithstanding that the contestant expressly disclaimed any charge 
of fraudulent knowledge on the part of the contestee, the majority of 
the committee feel justified in assuming it from the evidence; and this 
evidence shows nothing more than that the person voting in the name of 
Vincent Fermes voted a minute or two before the polls closed, and that 
Palmisano had been in the voting place at a period of time variously 
estimated by contestant's witnesses at from 5 to 15 minutes prior to 
closing. For whom the person voted, is not shown; that Palmisano was 
present, or, if present, had

[[Page 1548]]

his attention called to the person voting, is not shown. Another 
remarkable circumstance is that the knowledge that some person voted in 
the name of Vincent Fermes comes from the contestant, who has failed to 
give the source from which he derived the information. Who gave him 
that information? How did that person know it? Is it not fair to assume 
that the person who detected the impersonation of Fermes would have 
been called, if his testimony would have been helpful? If Palmisano had 
been concerned in voting somebody under another person's name, it would 
be more probable that he would select one of the numerous other 
registered voters as shown by the evidence who had not appeared to 
vote, rather than his own brother-in-law, as the person whose name was 
to be voted. In the entire absence of any legal evidence that Palmisano 
in any way participated in the fraudulent voting of the persons who 
voted under the names of Vincent and Anna Fermes, or benefited thereby, 
there occurs to us no reason why the committee or the House should make 
and insist upon a charge which the contestant himself disclaimed any 
intention of making.
    Fourth, the only evidence with reference to alleged repeating in 
the fourth precinct of the third ward or elsewhere is that of the 
witness, Max Steiner, who is shown by the record beyond reasonable 
question to be entirely unworthy of belief. His evidence, however, if 
believed, casts in no way any reflection upon Mr. Palmisano, or 
connects him with the alleged irregularities, or shows whether he or 
Mr. Hill benefited thereby, if they occurred. Steiner claims to have 
been acting upon the direction of one Jack Pollack, and admits that he 
did not talk at all with Palmisano, and only saw him once at a distance 
on the day of the election. The attorney for the contestant made in his 
argument the following statement:

         Mr. Tarver. Is there anything in this record and, if so, 
     I would like to have you point it out to me, showing that 
     Palmisano had anything to do with Pollack or his activities?
         Mr. Ruzicka. No, there is not.

    In the face of this admission, it seems a useless waste of time to 
consider the evidence as to what Steiner did under Pollack's direction, 
but if it is considered, it is not shown that he knows the name of a 
single voter whom he charges with repeating; nor that he saw any voter 
vote twice; nor whom any such voter voted for; nor are any other facts 
set out which, if believed, and if Palmisano had been directly 
responsible therefor, instead of being expressly absolved by the 
contestant's attorney from all culpability, would in any way constitute 
a reason for setting aside the result of this election, either in the 
fourth precinct of the third ward or elsewhere.
    Fifth, the only other evidence of irregularity in the fourth 
precinct of the third ward which the committee appeared to deem worthy 
of consideration, and it is to be presumed that it will so appear in 
the majority report, was the evidence with reference to the handling of 
the ballots after the polls closed. There is some evidence that 
unauthorized persons, present in the polling booth, in the presence of 
the election judges and clerks, lifted the ballots or part of them from 
the boxes and laid them on tables to be counted. The committee, 
desiring to know whether the irregularities complained of

[[Page 1549]]

had resulted in a fraudulent count, procured the passage of a proper 
resolution by the House and sent for the ballot boxes in this precinct. 
When produced they were properly sealed in accordance with the laws of 
Maryland and their custody since the election was properly accounted 
for. No question exists as to these facts. Upon opening the boxes and 
recounting the votes, it was found that whereas the officials' return 
had showed a total of 507 votes cast, the committee's count showed 501; 
that the officials' return showed 416 for Palmisano and 61 for Hill, 
whereas the committee's count showed 405 for Palmisano and 62 for Hill. 
There were 26 blanks in the congressional vote and two spoiled ballots. 
The difference between the count and the official returns was therefore 
inconsiderable, and such as may easily have resulted from a difference 
in the interpretation by the election officials and by the committee of 
what constituted a spoiled ballot, or a ballot upon which the voter had 
indicated no preference for a candidate for Congress.
    It was seriously insisted in the beginning of the case that there 
were 70 blank ballots in these boxes which had been counted, and that 
claim was supported by some evidence of a witness who had testified to 
other irregularities, and the failure to find these alleged blank 
ballots throws light on the credibility of the remainder of the 
evidence of this witness. A claim was also seriously insisted upon to 
the effect that in the removal of the ballots from the boxes and 
counting them, ballots for Palmisano could have been substituted for 
ballots for Hill. We regard this contention as entirely untenable. 
Aside from the fact that all the Republican officials of the precinct 
were present and participating in the count, and that nobody testifies 
to such a substitution, it appears that each of the ballots was 
initialed at the time of its delivery to a voter by the Republican 
judge, Daniel Wolf, the initials D. W. being written on each and every 
ballot. The committee examined each ballot carefully to ascertain if 
these initials appeared on every one. They did so appear. It is 
apparent that to have substituted ballots in the presence of the 
Republican officials, bearing initials written thereon by the 
Republican judge, or even by any other election official present by his 
authority, as it was insisted might have been done, would have been an 
impossibility. . . .
    Aside from the questions discussed, the following is submitted:
    The committee did not feel justified on account of the alleged 
irregularities in throwing out the box, and voted against so doing, 
therefore they must have found that the result at that box was legally 
ascertainable, and under the decisions of all courts that we have 
examined and all precedents of this House, under such conditions effect 
will be given to the properly ascertained result. It can not be 
stressed too strongly, however, that the evidence fails entirely to 
show that the contestee had anything to do with the irregularities 
complained of.
    The issue involved in this ease should not only not be regarded as 
a partisan issue, but even if it should be so regarded, the evidence 
fails to show that the contestant in his campaign stressed his 
allegiance to the Republican Party, and, singularly enough, does show 
that he failed to announce his support of the candidacy of the standard 
bearer of that party when repeatedly challenged to do so. The statement 
is made because a considerable

[[Page 1550]]

part of the record is devoted to evidence relative to this subject 
matter, as well as to the efforts of the contestant and contestee each 
to convince a ``wet'' constituency that he was the ``wetter'' of the 
two.

    As indicating the absence of fraud affecting the result in the 
fourth precinct of the third ward, attention is called to the fact that 
although only 32 Republicans were registered Mr. Hill received 62 
votes. . . .
    The premises considered, we propose the following resolution as a 
substitute for the resolution recommended by the majority of the 
committee:

         Resolved, That John Philip Hill was not elected as 
     Representative in the Seventy-first Congress from the third 
     congressional district of Maryland, and is not entitled to 
     the seat as such Representative.
         Resolved, That Vincent Palmisano was elected as such 
     Representative in the Seventy-first Congress from the third 
     congressional district of the State of Maryland and is 
     entitled to his seat as such Representative.

    The following is from the additional minority views submitted by 
Mr. John J. Douglass, of Massachusetts; Mr. Lindsay C. Warren, of North 
Carolina; and Mr. Malcolm C. Tarver, of Georgia:

    An examination of the alleged majority report discloses that the 
minority report heretofore filed, in so far as it discusses the 
evidence before the committee, covers a broader field than the majority 
report, and it is now necessary to add very little to the previous 
minority report.
    The majority report still insists upon the allegation that 
Palmisano knew of and was concerned in the fraudulent voting of two 
people under the names of Vincent and Anna Fermes, although the 
contestant, before the committee, expressly disclaimed such a 
contention, and did not make it in his notice of contest. (Hearings, p. 
90.)
    The report further sets up as one of the principal reasons assigned 
for discarding the returns from the fourth precinct of the third ward 
that the certificate of the election board was signed before the 
numbers of votes received by the respective candidates were filled in. 
The contestant made no such charge in his notice of contest, in which 
the law, as well as the practice and procedure of the House, requires 
him to ``specify particularly the grounds upon which he relies in the 
contest.'' (U.S.C., title 2, ch. 7, sec. 201, p. 13.)
    If the benefit is given to him, however, of a charge not made in 
the manner provided by law, it will at once appear that the practice of 
election officials in signing returns in blank, afterwards filling in 
the blanks in accordance with the facts, while an irregularity, yet 
where it is clearly shown, as in this case, that it was done without 
fraudulent intent, participated in alike by the officials of both 
parties, and resulted in no fraudulent miscount or return is too 
inconsiderable a technicality to result in depriving the voters of this 
precinct of their votes, and thereby declare elected a man whom no 
reasonable man can believe from reading the evidence in the record was 
elected.

[[Page 1551]]

    The statement in the majority report that ``the election board in 
the fourth precinct of the third ward flagrantly disregarded every 
provision of the election laws of the State of Maryland with respect to 
the taking of the ballots from the box, the counting, recording, 
certification of the ballots in that precinct'' expands without limit 
the already indefinite charges made by the contestant and is in itself 
too indefinite in character to require comment. We shall, however, in 
so far as we have not already done so, refer specifically to every 
definite charge made.
    In our original minority views we have discussed the question of 
some persons or person, according as one views the evidence, lifting 
some of the ballots out of the box in the presence of all of the 
officials, both Democratic and Republican, and laying them on a table 
and chair.
    Criticism is now made that the judges did not read the ballots one 
by one, but placed straight Democratic and straight Republican ballots 
in separate piles, counting only the number of ballots in these piles, 
but counted and tallied one by one the split ballots. We call attention 
to the fact that in a number of precincts carried overwhelmingly by the 
contestant, the same method of procedure in the counting and tallying 
of the votes was followed. It was the method followed in first precinct 
of the eighth ward, which was carried by the contestant by 229 majority 
(see record, pp. 552-553); in the thirty-fourth precinct of the eighth 
ward, which gave the contestant a majority of 125 (see record, p. 556); 
in the thirteenth precinct of the eighth ward, which gave the 
contestant 87 majority (see record, p. 561); and appears to have been a 
matter of quite general practice in the district. That the following of 
this method should be ``fraud'' when it occurs in a district carried by 
the contestee, but ignored when it occurs in districts or precincts 
carried overwhelmingly by the contestant, seems to be inconsistent. If 
the explanation be that the contestee made no counter charges with 
regard to the precincts carried by the contestant where this method of 
count was used, it occurs to us that if the contestant is not 
restricted to the charges made in his notice of contest, there is no 
reason why the gates should not be opened wide and every feature of the 
election developed by the evidence considered. We do not feel, however, 
that charges not made by the contestant should be considered, but we do 
feel that, with regard to this particular charge, the practice in other 
precincts carried by the contestant should be considered as 
illustrating the allegations of willful fraud in the fourth precinct of 
the third ward.
    It is interesting to note that wherever in the majority report the 
activities of the Democratic workers at the polls are criticized, they 
are referred to as ``workers of the contestee.'' They appear from the 
record to have worked far more efficiently for the Democratic 
presidential candidate, who received a majority of 427 in the fourth 
precinct of the third ward, and for the Democratic candidate for the 
Senate, who received a majority of 402, as against Palmisano's majority 
of 355. In fairness, these workers can not properly be referred to as 
``workers of the contestee.'' But no matter whose workers they were, no 
provision of the law of Maryland is quoted by the majority which made 
illegal their presence in the polling booth while the count was going 
on. And in so far as they or either of them may have participated with 
Re

[[Page 1552]]

publican officials, who, according to their own evidence, were doing 
the same thing, in lifting ballots out of the box and placing them on a 
table and chair to be counted, their acts, and the acts of the 
officials, Democratic and Republican, who participated, were a 
violation of directory, not mandatory, provisions of the Maryland law, 
and will not invalidate the return from the precinct in question, if it 
is possible, notwithstanding those acts, to ascertain the correct legal 
vote.

    The view of the majority of the committee, as reported to the 
House, to the effect that on account of the counting of the ballots in 
the method described by some of the witnesses, it is impossible to 
correctly ascertain the vote in the congressional race at the fourth 
precinct of the third ward, and that the recount had by the committee 
should be disregarded because of this alleged fraud, is not logical. 
The majority of the committee, as well as the minority, knew of the 
alleged irregularities in the count before the ballots were ever sent 
for. If it was felt that the evidence justified rejecting the returns 
from this precinct and that the committee could not know whether the 
ballots in the boxes were the ballots east by the voters or not, as now 
stated by the majority, why were the ballots sent for? Is it possible 
that the majority of the committee were expecting to find in the box 
corroboration of the evidence of contestant's witness, Yospi, that 
there were 70 blank ballots in it, and, since the box disclosed that 
this evidence was untrue, felt that sending for it in the first place 
was ill-advised? Shall evidence be regarded as of value until it is 
found not to support the position assumed, and then discarded as 
untrustworthy? The suggestion that there might have been any 
substitution of ballots is so unreasonable under the evidence in this 
ease as to hardly require comment, and especially is this true when it 
is remembered that each ballot bore in his own handwriting the initials 
of the Republican judge, Daniel Wolf. We say ``in his own 
handwriting,'' because repeated insistences by a member of the 
committee who now signs this minority report that Wolf be sent for to 
show the contrary if there was any question in the minds of the 
committee about it were declined.
    Whatever the irregularities in the method of counting the ballots, 
when the House comes to the question of discarding the committee count, 
we feel assured it will not agree with what is said in the alleged 
majority report, and when it is remembered that it would only be 
necessary to find that this Democratic candidate for Congress received 
a majority of as much as 26 in a precinct where 507 votes were cast and 
where only 32 Republicans were registered, and where other Democratic 
candidates received majorities in excess of 400, in order to find that 
he was elected, we shall continue to believe that the tide of 
partisanship has not arisen; and never will arise, to the height in 
this House necessary to unseat contestee until the House itself by its 
action shall convince us to the contrary.

    No resolution was offered to accompany the majority report. There 
was no House disposition of the contest and contestee therefore 
retained his seat.

[[Page 1553]]

Sec. 7.5  Updike v Ludlow, 7th Congressional District of Indiana.

    The time required by House rules for filing of an elections 
committee report was extended by the House by adoption of a resolution.
    Qualifications of Member.--The constitutional requirement of 
inhabitancy in the state when elected was held fulfilled where the 
Member maintained an ``ideal'' or intended residence in the state as 
evidenced by voting and tax payments, though his actual residence was 
in another jurisdiction.
    Report for contestee, who retained his seat.
    On June 25, 1930, Mr. Carroll L. Beedy, of Maine, submitted the 
following resolution by unanimous consent:

    Resolved, That the Committee on Elections No. 1 shall have until 
January 20, 1931, in which to file a report on the contested election 
case of Updike v. Ludlow, notwithstanding the provisions of clause 47 
of Rule XI.

    The resolution (H. Res. 270) was agreed to by voice vote without 
debate [72 Cong. Rec. 11701, 71st Cong. 2d Sess., June 25, 1930; H. 
Jour. 737].
    Report of Committee on Elections No. 1 submitted by Mr. Carroll L. 
Beedy, of Maine, on Dec. 20, 1930, follows:

                            Report No. 2139

                Contested Election Case, Updike v Ludlow

                       [To accompany H. Res. 326]

    In May, 1928, Louis L. Ludlow was the successful nominee in the 
primary elections for Representative in the National Congress on the 
Democratic ticket from the seventh district of Indiana. In November of 
that year, Mr. Ludlow is conceded to have received a majority of 6,380 
votes for Representative to Congress from the seventh district of 
Indiana. His election, however, was contested by Ralph E. Updike, of 
the seventh district of Indiana, who was the nominee for Representative 
to Congress from the district in question on the Republican ticket in 
the November elections of 1928.
    Mr. Updike contested Mr. Ludlow's election on two grounds--first, 
upon the ground that Mr. Ludlow was not an inhabitant of the State of 
Indiana within the meaning of article 1, section 2, of the 
Constitution, which provides among other things that, ``No one shall be 
a Representative who shall not . . . be an inhabitant of that State in 
which he shall be chosen''; second, upon the ground that the November 
elections in question were tainted by fraud and corruption.
    In the course of the contest, the allegation of fraud and 
corruption was abandoned and the issue finally turned upon the question 
as to whether Mr. Ludlow was an inhabitant of the State of Indiana in 
November, 1928, within the meaning of the constitutional provision 
above cited.

[[Page 1554]]

    It appeared that Mr. Ludlow was born in Indiana and resided there 
until the fall of 1901, at which time he came to Washington to serve as 
a newspaper correspondent for an Indianapolis newspaper. From that 
time, Mr. Ludlow continued to represent various Indiana and other 
newspapers until the 4th of March, 1929. His family, however, continued 
to reside in Indianapolis until 1915, coming to Washington with him 
only for short stays. At that time he sold the house in which he and 
his family had resided and which was located at the corner of Ritter 
and University Avenues in the city of Indianapolis.
    From 1915 Mr. Ludlow, with his family, resided in Washington, D.C., 
but his family made frequent visits to their relatives in Indianapolis. 
During his residence in Washington, D.C., Mr. Ludlow, with his family, 
attended the Union Methodist Church. In fact, Mr. Ludlow was a trustee 
of that church. From the time his family took up its residence in 
Washington, his four children, who, prior to their removal from 
Indiana, were educated in the public schools of Indianapolis, were 
educated in Washington, D.C.
    It also appeared in evidence that Mr. Ludlow had engaged to some 
limited degree in the purchase and sale of real estate in Indianapolis. 
With the exception, however, of one piece of property to which I shall 
presently refer, Mr. Ludlow disposed of all his real estate holdings 
within the seventh district of Indiana in 1925.

    In 1918 Mr. Ludlow purchased from his wife's sister her portion of 
a farm, formerly owned by Mrs. Ludlow's father. Mrs. Ludlow meanwhile 
had inherited a one-third interest in the farm in question. This 
property of Mr. and Mrs. Ludlow, which comprised land without a 
dwelling house thereon, was continuously held by them and is now held 
by them. It was the undisputed testimony of Mr. Ludlow that it had been 
held for years with the express intention on the part of Mrs. Ludlow 
and himself of returning to Indianapolis in their old age to build a 
permanent home.
    It also appeared in evidence that Mr. Ludlow had for many years 
paid his poll tax in Indiana. He had also paid his income tax in 
Indiana, notwithstanding the fact that residents of Washington, D.C., 
make their payment and returns of income taxes in Baltimore, Md.
    Mr. Ludlow testified that he had voted regularly in Indianapolis, 
Ind., having failed to do so only on two occasions. In 1924 he 
purchased the home in which he and his family now reside at 1822 H 
Street NW., Washington, D.C.
    In the course of the hearings, the word ``residence'' is broadly 
employed. No distinction is made between ``legal residence'' and 
``actual residence.'' The fact is that one's legal residence may be 
merely ideal following his inhabitancy. His ``actual residence,'' 
however, must be substantial and constitute an abode or dwelling place 
for a fixed and permanent time, as contradistinguished from a mere 
temporary locality of existence. It is a well recognized principle of 
law that one may abide or have a residence in one State or county and 
yet retain his legal residence or inhabitancy in another State or 
county.
    It is the view of the committee that the term ``inhabitant'' as 
employed in section 2, article 1 of the Constitution, embraces the idea 
of legal resi

[[Page 1555]]

dence as contradistinguished from actual residence. In other words, it 
is the view of the committee that one's inhabitancy is where he 
maintains his ideal residence.
    It is commonly accepted that an actual resident may not be entitled 
to all the privileges or subject to all the duties of an inhabitant. 
This is clearly so when the individual goes to the trouble of paying 
his taxes and insisting upon his right to vote in the place of his 
birth which he claims as his ideal residence. In such a case, one 
continues to be an inhabitant where he maintains his right to vote, 
irrespective of his actual residence. In other words, the inhabitancy 
of the individual is to be determined by his intention as evidenced by 
his acts in support thereof.
    In the case of Mr. Ludlow, it develops that he was excused from 
jury duty in the District of Columbia, when he made the frank statement 
to the court that he voted in Indiana. In other words, the court took 
the view that the actual residence of Mr. Ludlow did not subject him to 
the ordinary obligations of citizenship, but that those obligations 
attached where the rights were reserved, namely, in Mr. Ludlow's case, 
in the State of Indiana.
    It is the view of the committee that irrespective of Mr. Ludlow's 
actual residence in the District of Columbia at the time he ran for 
election as a Representative to Congress from the seventh district of 
Indiana, his course of action for years was such as to indicate his 
intention to retain his ideal residence, namely, his inhabitancy with 
all the incidental rights of citizenship, in the city of his birth, 
Indianapolis, Ind.
    It is, therefore, the unanimous conclusion of your committee that 
Ralph E. Updike was not elected a Representative to the Seventy-first 
Congress from the seventh congressional district of the State of 
Indiana and is not entitled to a seat therein, and that Louis L. Ludlow 
was duly elected a Representative to the Seventy-first Congress from 
the seventh congressional district of the State of Indiana and is 
entitled to retain his seat therein.

         Resolved, That Ralph E. Updike was not elected a 
     Representative to the Seventy-first Congress from the seventh 
     congressional district of the State of Indiana and is not 
     entitled to a seat therein.
         Resolved, That Louis L. Ludlow was duly elected a 
     Representative to the Seventy-first Congress from the seventh 
     congressional district of the State of Indiana and is 
     entitled to retain his seat therein.

    Reported privileged resolution (H. Res. 326) was agreed to by voice 
vote without debate [74 Cong. Rec. 1312, 71st Cong. 3d Sess., Dec. 20, 
1930; H. Jour. 111].
