[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].