Hinds' Precedents, Volume 2 - Chapter 40 - General Election Cases, 1902 To 1906

[Hinds' Precedents, Volume 2]
[Chapter 40 - General Election Cases, 1902 To 1906]
[From the U.S. Government Publishing Office, www.gpo.gov]

GENERAL ELECTION CASES, 1902 TO 1906.

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1. Cases in the Fifty-seventh Congress. Sections 1119--1128.\1\
2. Cases in the Fifty-eighth Congress. Sections 1129--1134.\2\
3. Cases in the Fifty-ninth Congress. Section 1135.\3\

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1119. The Alabama election case of Spears v. Burnett, in the Fifty-
seventh Congress.
Unfair conduct on the part of election officers and suspicious
circumstances do not justify overturning a majority not destroyed by
testimony.
On February 28, 1902,\4\ the Committee on Elections No. I reported in
the case of Spears v. Burnett, of Alabama. The committee reported the
sitting Member entitled to the seat, saying:

On the face of the returns the contestee, Burnett, appears to have
been elected by a plurality of 747. The contestant disputed the
validity of these returns, claiming that in certain precincts in the
district he was denied proper representation, and that at many of the
precincts fraud and bribery were resorted to its accomplish the return
of the contestee.
Your committee have given full and careful attention to all of the
claims made by the contestee and to the testimony in the case. The
contestant appears to have been the regularly nominated Republican
candidate for Congress, and in the main received the support of his
party. While in some of the
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\1\ Additional cases in the Fifty-seventh Congress are classified in
other chapters:
Wagoner v. Butler, Missouri. (Vol. I, sec. 713.)
Walker v. Rhea, Virginia. (Vol. I, sec. 737.)
\2\ Other cases in the Fifty-eighth Congress:
Reynolds v. Butler, Missouri. (Vol. I, sec. 730.)
Kahn v. Livernash, California. (Vol. I, sec. 731.)
Cross v. McGuire, Oklahoma. (Vol. I, sec. 732.)
Moody v. Gudger, North Carolina. (Vol. I, sec. 739.)
Duborrow v. Lorimer, Illinois. (Vol. I, sec. 740.)
Edwards and White v. Hunter, Kentucky. (Vol. I, sec. 741.)
Bonynge v. Shafroth, Colorado. (Vol. I, sec. 742.)
\3\ Other cases in the Fifty-ninth Congress:
Michalek, Illinois. (Vol. I, sec. 426.)
Iaukea v. Kalanianaole, Hawaii. (Vol. I, sec. 527.)
Houston v. Broocks, Texas. (Vol. I, sec. 643.)
Jackson v. Smith, Maryland. (Vol. 1, sec. 711.)
Coudrey v. Wood, Missouri. (Vol. I, sec. 715.)
\4\ First session Fifty-seventh Congress, House Report No. 624.
Sec. 1120
precincts, concerning which complaint is made, there is evidence of
unfair treatment on the part of the Democratic managers and some
circumstances appear raising at least a suspicion of fraud, there was
certainly no general conspiracy to dishonestly deprive him of votes in
the precincts of which complaint is made and concerning which proof is
presented to us, and there is not sufficient ground of criticism to
seriously affect the return majority of 747 votes.

On March 22 \1\ the House, without division, agreed to the report of
the committee.
1120. The Kentucky election case of Moss 42v. Rhea, in the Fifty-
seventh Congress.
A technically informal ballot having been illegally received by a
judge of election was counted, the voter being guiltless of collusion
in the illegal act.
The failure of an election judge to detach a stub from a ballot, as
he was required to do by law, did not justify the rejection of a ballot
cast in good faith.
As to what is a sufficient return of rejected ballots under the
Kentucky election law.
On February 28, 1902,\2\ the Committee on Elections No. 1 reported in
the case of Moss v. Rhea, of Kentucky, that the sitting Member was not
entitled to the seat and that the contestant was elected and was
entitled to the seat.
The official returns gave to Rhea a plurality of 156 votes. The
majority of the committee added to the official return ``the number of
undoubted votes received by each of the two candidates upon the ballots
which were rejected and not counted in the various precincts in the
district'' as follows: For Rhea, 135; for Moss, 312; leaving for
contestant a plurality of 21.
The minority denied this conclusion, and joined issue with the
majority on two general points:
(1) As to the proper identification of the rejected ballots, in order
to determine whether they had or had not been already counted in the
original return.
(2) As to what irregularities in the ballots should be sufficient to
sanction rejection.
The Australian ballot law of Kentucky, in providing generally for the
count of the ballots, provides:

That if there are any ballots cast and counted or left uncounted,
concerning the legality or regularity of which there is any doubt or
difference of opinion in the minds of the judges of election, said
ballots shall not be destroyed, but sealed up and returned to the clerk
of the county court with the returns of the election for such judicial
or other investigation as may be necessary, with a true statement as to
whether they have or have not been counted, and if counted, what part
and for whom.

The minority contended that under the judicial decisions of Kentucky
each of the rejected ballots should be accompanied by a statement
signed by all the election officers of the precinct. And it was further
urged that under the provisions of the Constitution the House was bound
by the law of Kentucky as construed by the Kentucky courts.
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\1\ Journal, p. 396; Record, p. 2236.
\2\ First session Fifty-seventh Congress, House Report No. 625.
Sec. 1121
The majority of the committee denied that the courts of Kentucky had
construed the statute in the way declared by the minority.
From the general return the rejected ballots were sufficiently
identified in the opinion of the majority:

The certificate of the election officers states the whole number of
ballots voted, the number counted as valid, and the number questioned
or rejected. It seems to us quite evident that if, for instance, the
precinct election officers, in their certificate of election, state
that the number of ballots cast was 400, that the number counted as
valid was 300, and that the number questioned or rejected was 100, that
this is a sufficient statement to show that there are 100 rejected
ballots not counted. And if in such case the election officers have
returned in proper form and in the proper envelope just 100 ballots as
questioned or rejected ballots to the county court clerk, then it seems
to us this establishes clearly that these 100 ballots were not counted
by the precinct election officers, but were ballots rejected by them in
making the count.
``In such case we can not conceive of any reason why there should be
any other or further certificate made by the precinct election
officers. If, on the other band, we take a case where we find the
election officers returned 400 ballots as cast, 350 ballots counted as
valid, and 100 ballots returned as questioned or rejected, then it is
very evident that, without a further identification of the questioned
ballots which have been counted and the rejected ballots which have not
been counted, it is impossible to determine which of the ballots
returned as questioned and rejected can be counted where contest is
made.''

As to the second point--the irregularities in the ballots
themselves--the majority and minority joined issue on several points:

(a) A considerable number of ballots were cast without the
indorsement of the clerk of election, required by the following
provision of law:

No judge or other officer of the election shall deposit any ballot on
which the facsimile signature of the county clerk and the name of the
election clerk do not appear.

The minority contended that these ballots should not be counted, and
had been properly thrown out by the election officers. (Case of
Slaymaker v. Phillips, 5 Wyoming 453, cited.) The majority held that in
a case of this kind the ballot should be counted if received, referring
for authority to the Missouri case of Heyl 42v. Guion, 55 Southwestern
Reporter, page 1036.
1121. The case of Moss v. Rhea, continued.
An evidently accidental ink blot on a ballot, or blot of stencil mark
caused by folding is not a distinguishing mark and the ballot should
not be rejected if the intent of the voter is apparent.
Faint pencil marks, evidently not of utility in identifying ballots,
and appearing under circumstances suggesting fraud, were held not to be
such distinguishing marks as to justify the rejection of ballots.
Where the intent 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.
A voter having marked above two tickets on an Australian ballot, the
counting of a vote for Congressman was considered of doubtful
propriety, even in view of the fact that one ticket contained no
candidate for Congress.
The question raised as to the right of the House to determine the
rule as to evidence it will receive, even though State law and
decisions are alleged to prescribe a rule.
Sec. 1121
(b) A large number of ballots were blotted in folding so that the
stencil mark made by the voter, as provided by law, was reproduced with
greater or less distinctness on another portion of the ballot. In some
cases this blotting was so extensive as to make a doubt as to which, of
two tickets on the ballot, the voter had marked. The election officers
threw out not only those where there appeared a real doubt, but also
many where the fact that the second mark was a mere blot, appeared so
evident that the majority of the committee, after careful inspection,
decided that they should be counted. The Kentucky law provides that
when the voter has made on his ballot any distinguishing mark to show
to another how he has voted, the vote shall not be counted; but the
majority of the committee could not find that these blots were such
distinguishing marks.
(c) Certain ballots, some for sitting Member and some for contestant,
had been rejected by the election officers because of a faint, barely
distinguishable pencil mark, usually on the upper right-hand corner of
the ballot. The evidence, though not conclusive, tended to show that
the mark had been put on the ballots by an election clerk who was a
partisan of the sitting Member. The majority of the committee decided
that, as inspection made evident, these pencilings were not
distinguishing marks within the meaning of the law.
(d) Certain ballots were thrown out because of the negligence of an
election judge, who was required to detach a stub from the ballots
before they were deposited in the ballot box, and did not perform this
duty. The majority of the committee decided that these ballots should
be counted, the voter not having anything to do with the detachment of
the stub.
(e) Certain ballots were rejected because they were found marked in
both the Republican and Socialist-Labor circles, and others in both the
Democratic and Socialist-Democratic circles. As there was no candidate
for Congress on either the Socialist-Labor or Socialist-Democratic
tickets, the claim was made that the doubly marked tickets should be
counted for the only candidate for Congress appearing on the two. The
majority of the committee cite Parker v. Orr (158 Ill., 618) in support
of this view, but consider it doubtful whether such votes should be
counted and do not include them in the list of counted votes, according
to which the election of contestant is shown. The minority contended
that such ballots were neutralized, and should not be counted, citing
the case of McMahon v. Polk (10 S. Dak., 296).
(f) On the Kentucky official ballot there is a blank space on which
the voter may, under the statute, write the name of his choice if he
does not wish to vote for the regular candidate. Under the law the
voter marks the ballot in a circle above the party ticket, or in a
square opposite the name of the particular candidate. On certain
ballots the voter marked in the square opposite the blank space below
the name of the candidate, and on others in the blank space itself. The
majority of the committee contended that, under the decision of the
Kentucky courts and under the following provisions of law, the intent
of the voter was plain and the ballots should not be rejected.

Should any elector desire to vote for each and every candidate of one
party he shall make a cross making the large square [changed to circle]
embracing the device and preceding the title under which the candidates
of said party are printed, and the votes shall then be counted for all
the candidates under that title: Provided, however, That if a cross
mark be made in the large square including the device of such
Sec. 1121
party, and a cross mark be also marked in the square after the name of
one or more candidates of a different party or parties, the vote shall
be counted for the candidate so marked, and not for the candidate for
the same office of the party so marked; but the vote shall be counted
for the other candidates under such party name or designation.

The minority, quoting as authority 17 R. I., 812, and 18 R. I., 822,
contended that votes marked as above were not votes for any persons.
The case was considered by the House on March 22, 24, and 25.\1\
During this debate especial stress was laid by those speaking on behalf
of the sitting Member that the laws and judicial decisions of Kentucky
were binding on the House in the decision of the case. Mr. George F.
Burgess, of Texas, expressed the contention as follows:

The right to vote is not a matter guaranteed to any citizen in this
country by the Constitution of the United States or any act of
Congress. It is a State privilege. The only provision of the
Constitution which could attach to an election in one of the States is
that which has reference to the color line, and that is not involved in
the remotest degree in this contest now before the House.
The Constitution also provides that the Members of the House of
Representatives ``in each State shall have the qualifications requisite
for electors of the most numerous branch of the State legislature.''
That provision is not involved at all in this case. The Constitution
also further provides that ``times, places, and manner of holding
elections for Senators and Representatives shall be prescribed by the
legislature thereof; but the Congress may at any time, by law, make or
alter such regulations, except as to the places of choosing Senators.''
That provision is not involved in this contest.
Mr. Tucker, in his work, tersely and completely states this whole
contention in the sentence when he says: ``Suffrage is a State
privilege belonging to State citizenship, and is exclusively under
State jurisdiction.''
The minority report says: ``The State of Kentucky has fixed the
qualification of electors and has prescribed the time, places, and
manner of holding elections for Representatives in Congress. Although
perfectly competent to do so, Congress has not at any time made such
regulations or altered those made by the State of Kentucky.''
Hence it follows this House is bound by the laws of the State of
Kentucky and the decisions of her supreme court thereunder, and it is
therefore perfectly obvious that the gentleman from Illinois admits the
legal situation when he says this House is bound by the statutes and
decisions of the State of Kentucky touching upon the manner and conduct
of her elections, Congressional or otherwise.

The majority report, drawn by Mr. James R. Mann, of Illinois, did not
combat this proposition, for the reason that the decisions of the
Kentucky courts did not, in the opinion of the majority, lay down the
rules which the minority claimed that they did.
Mr. Walter I. Smith, of Iowa, while agreeing with the majority of the
committee in their construction of the Kentucky decisions, also took
the position that the rejected ballots were admissible without the
individual certificates of the election officers, ``even in defiance of
the statute and in defiance of the decision of the supreme court of
Kentucky. I propose,'' he said--

to put it on both grounds, and I feel that it may be well to read even
to our Democratic friends the provisions of the Constitution of the
United States upon this subject. ``The times, places, and manner of
holding elections for Senators and Representatives shall be prescribed
in each State by the legislature thereof.''
Does that provide that the legislature of any State can prescribe the
rules of evidence which shall govern this judicial body in sitting and
trying contested-election cases? Does the Constitution, when it says--
``That the times, places, and manner of holding elections for Senators
and Representatives shall be
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\1\ Record, pp. 3158, 3204, 3247-3255.
Sec. 1122
prescribed in each State by the legislature thereof,'' confer authority
to enact rules of evidence for the government of this judicial
tribunal?
``Each House shall be the judge of the elections, returns, and
qualifications of its own Members.''
Is this House, sitting in the exercise of its high judicial
functions, to be bound and limited by rules of evidence derogatory of
the common law enacted by the legislature of the Commonwealth of
Kentucky?

Mr. Smith quoted the contested election case of Norris v. Handley in
support of his contention.
The House sustained the report of the majority of the committee,
unseating Mr. Rhea and seating Mr. Moss.
The vote on the motion to substitute the minority resolutions,
favorable to Mr. Rhea, for the majority resolutions, favorable to Mr.
Moss, was yeas 124, nays 136.
The majority resolutions, declaring Mr. Rhea not entitled to the
seat, and Mr. Moss entitled to it, were then agreed to without
division.
1122. The Missouri election case of Horton 42v. Butler, in the Fifty-
seventh Congress.
The contestant is not limited as to the number of places in which he
will take testimony at the same time.
A certified copy of a public record was admitted in an election case,
although presented in the time for taking rebuttal testimony.
Discussion as to the extent to which the House is bound by the
technical law as to taking evidence in an election case.
On April 5, 1902,\1\ Mr. Robert W. Tayler, of Ohio, from the
Committee on Elections No. 1, submitted a report in the case of Horton
v. Butler, from Missouri.
Two preliminary questions were considered by the committee before
proceeding to the merits of the case.
(a) In relation to the taking of testimony the majority of the
committee say:

No important questions of practice are raised respecting any relevant
testimony, although, in view of the fact that strenuous objection was
made to the fact that during a period covered by the taking of
testimony witnesses were examined for the contestant at several
different places at the same time, we deem it proper to state our views
in relation to the subject.
We see no objection to such practice, especially in such a case as
this, where about a thousand witnesses were examined, many of them on
matters of great importance and at considerable length. To deny the
right to take such testimony at as many places as the necessities of
the case may require is to deny the right of the contestant to make out
his case at all.
Instances have occurred in our experience where a contestee by
frivolous and unnecessary cross examination has so consumed time as to
seriously interfere with the orderly and just progress of the
investigation.

(b) In relation to rebuttal testimony the majority of the committee
say:

The contestant having consumed forty days in taking his testimony in
chief rested his case. The contestee examined no witnesses. After the
expiration of the time allowed to contestee for that purpose the
contestant, having given due notice thereof, proceeded, on March 26, to
examine E. A. McBurney, and his testimony then taken appears at pages
2199-2204.
The contestee did not appear either in person or by counsel, but on
May 1 presented his objection to the consideration of this testimony to
the Clerk of the House of Representatives, for the following reasons:

``First. It is rebuttal when no testimony was taken for the
contestee, and therefore nothing to rebut.
``Second. It was taken after the time for taking testimony had
expired.''
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\1\ First session Fifty-seventh Congress, House Report No. 1423.
Sec. 1123
The testimony of McBurney at this time was of two classes:
First. Certified lists from the Director of the Census giving the
name, address, color, and age of the males 21 years of age and over in
the Fourth, Fifth, Sixth, Fourteenth, Fifteenth, and Twenty-third wards
of the city of St. Louis as returned by the census enumerators engaged
in compiling the United States census of the year 1900.
Second. Comparative tabulated statements made up from the
registration lists, the recount of the ballots, the poll books, the
McBurney canvass (all of which had been offered in evidence within the
first forty days), and the certified census lists referred to above.
As to the matter embraced under the second head, it is apparent that
it is not testimony at all, but only a consolidation, tabulation, and
rearrangement of the testimony formerly introduced. It is valuable if
correctly consolidated, tabulated, and arranged, and in so far as it
has been found to be, or is believed to be, correctly done it has been
of service to us in considering the case.
The sole question remaining, therefore, is, Must we disregard the
certified census lists?
We see no reason whatever for so doing.
1. It is a public record, and such testimony is always competent. If
it had been offered when the case came on for hearing before the
committee, it would have been received. If, in the opinion of the
committee, its reception at that time would find the contestee
unprepared to meet and answer any inferences which might be drawn from
it, he would have been given ample time to suitably respond, either by
rebutting testimony or by such an examination of it as he might need.
2. In the case cited by contestee as showing the ground why this
testimony should not be considered in the case the rule is held to
apply only to ``ordinary cases'' and ``without any cause whatever being
shown therefor.''
The case under consideration is far from being an ``ordinary case,''
and excellent reasons appear why the course followed should have been
adopted.
We agree that in ordinary cases the letter of the law should be
followed; but after all the serious question always is, Has the party
been diligent, and more important still, has the opposing party been
prejudiced and has he had opportunity to make answer to the testimony
taken out of time? No wrong has been done the contestee by the
introduction of these lists.
Counsel for contestee closed his argument with an eloquent panegyric
of technicalities and their value in art, science, and jurisprudence.
What he so well says in that relation may be freely admitted to be
sound. In a certain sense it may be said to have some application to
contests in the House of Representatives. But if it be true that courts
must sometimes be compelled to confess themselves powerless in the face
of rigid rules and precise ``technicalities'' such is not the unhappy
state of the House of Representatives. There is no power lodged
anywhere which limits its discretion and authority, except the
Constitution and its sense of right. Partisan prejudice may color its
judgments and want of wisdom may make its decrees unsound, but it is
never without power to do the right within the limits of its wide
jurisdiction.

1123. The case of Horton v. Butler, continued.
Where fraud so permeated a large part of the district as to prevent a
full, free, and fair expression of the voters' will, the seat was
declared vacant.
The degree and kind of testimony required to show a registration to
be fraudulent, in connection with a conspiracy.
As to the validity of census returns and a canvass in proving a
registration to be fraudulent.
As to hearsay evidence of persons participating in a fraudulent
registration.
The kind and degree of evidence required to establish a conspiracy to
defraud in a district.
As to the merits of the case, the majority of the committee, in their
report, set forth that the official returns gave the sitting Member a
plurality of 3,553. The contestant attacked these returns on numerous
grounds, the most important
Sec. 1123
of which were fraudulent registration, fraudulent voting, violation of
law as to appointment of election officers, violence, intimidation, and
false counting. The majority of the committee thus summarize:

We find that no valid election was held for Representative in the
Fifty-seventh Congress from the Twelfth district of Missouri, because--
First. Fraud so permeated the conduct of the election in a large part
of the district as to prevent a full, free, and fair expression of the
public desire in respect to the election of a Representative in
Congress.
Second. While the evidences of Democratic fraud are numerous and in
almost every precinct discoverable, yet upon one of the many phases of
the testimony showing Democratic frauds it appears that about 5,000
votes were cast for the contestee and about 2,000 for the contestant
under names and addresses which a careful canvass could not discover as
representing actual residents. We can not apply one rule of inference
to one side and refuse to apply it to the other side. Nor can we when
so many votes apparently tainted with fraud are involved determine that
he who has least benefited by them shall be declared elected. It is
possible that this conclusion may not be entirely fair to the
contestant, but we are convinced that it is the only just decision we
could render.

The minority of the committee, in views submitted by Mr. Sydney J.
Bowie, of Alabama, contend that--

there is no competent evidence in this record which remotely tends to
invalidate a sufficient number of these votes to make this majority
even doubtful.

The majority of the committee, preliminary to the consideration of
specific acts of fraud, call attention to certain conditions which
existed or were created to further what is termed a conspiracy. A new
election law had recently been enacted, which enabled the party of the
sitting Member to deny to the other party an efficient, representation
on the boards of officers conducting the registration and voting. The
police board of the city in which the district was located was also
under the partisan control of sitting Member's party; and the committee
concluded, from a report of a grand jury which sat in St. Louis, that
it was used in furtherance of a conspiracy entered into by leading
officials of sitting Member's party.
A further fact having a bearing on the decision of the case was the
provision of the constitution of Missouri that every ballot voted
should be numbered in the order of its reception and opposite the name
of the voter depositing it, and that this record should be open in case
of contest. The majority of the committee examined--
1. The fraudulent registration. There appeared from the testimony to
have been a fraudulent registration to the extent of about 9,180 in a
total registration of 27,467. The methods and extent of this
registration were proven as follows:
(a) By the testimony of 5 witnesses, who saw acts disclosing a system
of illegal registration by the issuance of slips of paper containing
fictitious names on which repeaters registered.
(b) By canvassers in certain precincts which disclosed enough
fraudulent registration to discredit the election in those precincts.
(c) By the testimony of persons living in houses neighboring to those
wherein suspicious registrations were located, and who did not know the
persons registered, although they did know everyone living in the
houses.
(d) Testimony similar to the above from persons actually living in
the houses from which the alleged fraudulent registration occurred.
Sec. 1123
(e) Registration from lots found to be vacant.
(f) That registered letters addressed to about 1,500 suspicious names
could be delivered only in a few cases. The minority attempt to impeach
this by showing certain cases where the persons were in fact living at
the address but did not receive the registered letters. These cases
were not numerous.
(g) Apparent registration of about 2,500 names from low resorts,
saloons, yards, shops, stables and other places where there were no
dwellings attached.
(h) By admissions on the part of those who participated in the
frauds. The majority of the committee say:

There is much heresay evidence of specific admissions by persons
claiming to have participated in the frauds, but we have not considered
such evidence unless it appeared that the person thus confessing was in
a position of authority, or was engaged in the fraudulent work aside
from his admissions.
Thus we learn, that one Reese Evans was industriously engaged with a
gang of repeaters distributing slips to his men, so that they might
have timely advice as to their names, ages, and places of residence.
The plan of using these dips will be more fully referred to when we
come to a description of the election itself. Reference is here made to
it for the purpose of showing Evans's relation to the conspiracy.
The witness tells us, that he knows Evans well, and that before the
election Evans told him that he had 20 men on his list, and that he was
registering them as many as twenty times a day.
It may be said that this testimony narrates an improbable story. The
simple answer to that is that it is very full and explicit, and that
Evans does not go upon the stand and deny it; nor is any explanation
suggested why he did not do so.

(i) The excessive registration in the district as compared with
population. The ratio was 24 per cent of the population, while in New
York the ratio was 17.7, and in Philadelphia 18.1. The minority
contended that this comparison was misleading and made on a false
basis.
(j) By a comparison, on the initiative of the committee itself, of
the first 509 names to which registered letters were sent, with the
city directory which was made from a canvass within two or three weeks
after the election, the committee found in the directory 110 of the
persons, and did not find 399.
(k) By a comparison with the returns of the Federal census taken in
the June preceding the registration in October. From this it appeared
that of 27,467 persons registered, 14,088 were not enumerated in the
census. The majority say:

It is not to be denied that no census can be exactly accurate, and it
must be true that conditions in June do not necessarily determine
conditions in October. Nevertheless, whatever may be the conditions of
population as to permanence, it is not for a moment admissible that in
a city like St. Louis half of the population registered in October did
not reside in the district in June, nor can it be true that if residing
there they were not found by the census enumerators.

(l) By a canvass made in the latter part of December under direction
of attorneys for contestant, and ostensibly for the purpose of a trade
directory. This canvass, called the ``McBurney canvass,'' failed to
find 12,411 of the 27,467 names on the registration lists. This canvass
also demonstrated that many persons entitled to registration were not
registered. As to this canvass, which was a subject of much contention
in this case, the majority of the committee say:

While some question is raised as to the competency of this canvass as
evidence in the case by reason of the fact that the canvassers
themselves were not put upon the witness stand, we are yet inclined to
receive it for what it is worth in precisely the same way and for
exactly the same purpose as that for which we would consider a city
directory competent.
Sec. 1123
It must not be forgotten that this is not a case in which an effort
is being made to prove that Richard Roe did or did not commit a crime
or whether John Doe did or did not vote at a certain place at a certain
time. Considering the character of the issue made in this case and the
nature of the frauds alleged and otherwise proven, it is difficult to
understand what kind of testimony could be more persuasive or even more
competent than the results of the canvass made under the circumstances
in which a city directory of a great city is ordinarily made.
It is proven in this case to our entire satisfaction that the
canvassers under McBurney were competent to perform their duty; were
suitably instructed; that each made an affidavit to the correctness of
his returns; that that affidavit was the basis upon which his
compensation was fixed; and that the canvass made by them and by them
returned, and tabulated by Mr. McBurney, is, in all respects, as worthy
of credibility as any canvass for a city directory could possibly be.
As to its persuasiveness respecting any particular individual we
would of course have very grave doubts, but as to the charges made and
the facts en masse nothing could be more convincing. So we consider
that whatever objections there are to the McBurney canvass go to its
weight, and its weight is to be determined by its comparison with other
testimony.

The minority of the committee assail this testimony as heresay:

There were 57 canvassers who did this work, only one of whom, Mr.
Elmer L. Moone, was examined. The testimony as to the work done by the
remaining 56 canvassers consists simply of a lot of names and
residences written down in a book, signed by them, and which they left
with Mr. McBurney. The latter testifies that he knows absolutely
nothing as to the correctness of the work of any of these canvassers,
but the tabulated figures which he makes are based upon the assumption
that it is correct. In other words, he testifies as to what they told
him.

The minority then quote at length the authorities against heresay
evidence; and also attacks the canvass on its merits.
(m) The majority of the committee also draw unfavorable conclusions
from the failure of sitting Member to contradict the testimony of false
registration:

But when we consider the specific testimony on behalf of the
contestant, pointing out people by name who had participated in
unlawful registration and unlawful voting, when house after house was
specifically referred to as places from which many persons had been
registered, but did not live there and had never lived there; when, in
a word, hundreds of accurately and unmistakably described instances
were given of fraud which, if they had not occurred, could be disproved
in a moment by witnesses who must have been subject to the call of the
contestee, it amounts to little short of an admission of the truth of
the contestant's statement for the contestee to say that it was not
necessary to take testimony in his own behalf.

2. The fraudulent voting. The system under which the majority alleged
this to have been done was disclosed by testimony as to the following
features of the election:

(a) It was shown in a recount of the ballots that--

In the wards in which the greatest frauds were perpetrated, 60 out of
113 judges and clerks who were appointed by the Democratic deputy
commissioner as Republican judges and clerks were opposed to the
election of Horton.

(b) The ejection of Republican challengers from polling places where
fraudulent voting was about to take place.
(c) The activity and inactivity of the police in apparent furtherance
of the plans for fraudulent voting, as shown by uncontradicted
testimony.
(d) The use of repeaters, described by the majority of the committee
as follows:

The various leaders in charge of repeating gangs possessed themselves
of slips, upon each of which was recorded the name and address of some
fictitious person, or of a person having no right to vote, who was
registered in a certain precinct. Arranging these slips by precincts,
the man in charge of the
Sec. 1124
repeating crowd would, when approaching the polling place, distribute
among his people the slips representing registrations from that
precinct. The crowd then entered the polling place, each one giving to
the judges the name which he found written on the slip in his hand. The
judges, of course, promptly found the proper name and address upon the
registration list and permitted the offering voter to vote. This
operation was repeated at that precinct as often as it was deemed safe
to do so until as many of the illegally registered names could be voted
as the leader cared to risk; then the crowd passed on to the next
precinct, where the same process was carried on.

Among the most striking incidents was the fact that at a polling
place the votes cast while the repeating gangs were present would be
given by voters who, to the number of over 100 consecutively, had no
middle names, although in other parts of the poll lists such a
phenomenon was not observed.
3. The recount of the ballots showed that sitting Member had been
credited on the count with a larger number of votes than were actually
cast. Contestant charged that this excess amounted to 913; and sitting
Member admitted that it amounted to 402, thus leaving his official
majority at only 3,151.
The recount also showed that sitting Member received 3,727 votes of
persons not found either by the census or the McBurney canvass; and
that contestant received 1,345 votes from such persons.
Deducting the 3,727 apparently fraudulent votes from sitting Member,
would leave a majority for contestant; but the committee consider that
in applying such a rule it would be necessary also to deduct the 1,345
apparently fraudulent votes from contestant's vote, which would still
leave sitting Member elected. But in view of the widespread corruption.
which tainted so many of the polling places, and in view of the fact
that the testimony indicated that there had been some fraudulent
manipulation of ballots after they were cast, the majority reported the
following resolution:

Resolved, That no valid election for Representative in Congress was
held in the Twelfth Congressional district of Missouri on the 6th day
of November, 1900, and that the seat now held by the contestee is
hereby declared vacant.

The minority reported resolutions declaring sitting Member elected
and entitled to the seat.
The report was debated on June 27 and 28,\1\ and on the latter day
the motion to substitute the minority proposition for the majority was
disagreed to, yeas 100, nays, 136. Then the resolution declaring the
seat vacant was agreed to.
1124. The North Carolina election case of Fowler v. Thomas, in the
Fifty-seventh Congress.
Although the election in a large part of a county may be vitiated by
disregard of law by the county election officers, yet the returns of
unassailed precincts in the county should be counted.
On April 9, 1902,\2\ Mr. Marlin E. Olmsted, of Pennsylvania, from the
Committee on Elections No. 2, submitted a report in the case of Fowler
v. Thomas, of North Carolina.
The sitting Member had on the face of the returns a plurality of
1,909 votes over contestant, and a majority of 1,893 over all. The
contestant claimed the
-----------------------------------------------------------------------
\1\ Record, pp. 7527, 7577-7594.
\2\ First session Fifty-seventh Congress, House Report No. 1514.
Sec. 1124
rejection of enough votes to give himself a plurality of 574 votes. But
in order to effect a result favorable to contestant it would be
necessary to deduct, the entire vote of the two counties of Craven and
Duplin, the first of which gave sitting Member a majority of 911 votes
and the second of which gave him 810 majority.
Craven County.--The first reason given for excluding the entire vote
of Craven County is--

that the county board of elections of Craven County, in appointing
judges of election for the various voting precincts under the law of
the State of North Carolina, which provides that each party shall have
representation among the said judges, ignored those who had been
recommended by the Republican executive committee in all the precincts
in said county except Maple, Cypress, Truitts, Dover, Fort Barnwell,
Core Creek, Lees Farm, First Ward, and Third Ward.

The vote in these excepted districts, as to which contestant concedes
that the judges were properly appointed, was 915 for sitting Member and
357 for the contestant, a majority of 558 for the sitting Member. The
report goes on:

There is evidence that in some or all of the other precincts the
election officers were all Democrats, or that if Republicans they were
not those recommended by the Republican executive committee. We are not
satisfied that the consolidation of some of the other precincts, so as
to crowd more Republican and Populist voters into one precinct than
could readily vote and be counted in single day if attempts were made
to delay the voting, was done for an honest purpose. But if we were to
throw out all of those districts Mr. Thomas would still have a majority
in the unattacked districts as above stated, and we have been shown no
reason why the vote of the unattacked districts should be rejected.
Therefore, notwithstanding the evidence of considerable irregularity in
some parts of this county, we are unable to reject the entire vote as
requested by contestant.

Duplin County.--The report says:

Contestant also complains that in Duplin County the election boards
were either composed entirely of Democrats, or where Republicans or
Populists were appointed they were not those recommended by the
recognized authorities of said respective parties. It does not appear
from the evidence that the Republican party submitted any list of those
whom it desired placed upon the respective election boards. The
Populists did, and asked for the appointment of a Populist on each
election board. The county board, however, in some instances appointed
Republicans and in others appointed Populists, but not always the
persons named by the party authority.
There is evidence tending to show that in some of the districts the
so-called Republican or Populists who were appointed were of doubtful
allegiance to the parties they were supposed to represent and sometimes
voted mixed tickets, but we have not been pointed to any evidence that
they worked or voted against the contestant.
As to some districts no cause has been shown for complaint as to the
complexion of the election boards, and upon the whole we are not
satisfied that the vote of the entire county can properly be rejected.

There was also some evidence that, in the August election preceding
the Congressional election of November, there was intimidation in
Duplin County, but very little evidence of any in November.
There was also some evidence of other irregularities, but not enough
to prevent the committee from arriving unanimously at the conclusion
that the contestant had not been elected, and that the sitting Member
was entitled to the seat.
On May 21,\1\ the House, with little debate and no division,
concurred in the report.
-----------------------------------------------------------------------
\1\ Record, p. 5754.
Sec. 1125
1125. The Ohio election case of Lentz v. Tompkins, in the Fifty-
seventh Congress.
Instance wherein the Elections Committee condemned pleadings in
notice and answer for irrelevant charges and insinuations.
The Elections Committee has no authority to alter or suppress
improper pleadings in the notice and answer.
Ex parte and hearsay testimony is rejected by the Elections
Committee.
The House should not count a bribed vote, although no State law may
require its rejection.
The entire vote of a precinct should not be rejected simply because
certain votes are shown to be corrupt by reason of bribery.
On April 10, 1902,\1\ Mr. Marlin E. Olmsted, of Pennsylvania, from
the Committee on Elections No. 2, presented the unanimous report of
that committee in the case of Lentz v. Tompkins, of Ohio, finding that
contestant was not elected, and that the sitting Member was entitled to
the seat.
This report discussed two questions--(1) a question of pleading, and
(2) the merits of the contest.
1. As to the pleading the committee say:

The statute governing contested Congressional elections provides that
the contestant shall, within a specified time, give notice to the
Member whose seat he designs to contest, ``and in such notice shall
specify specifically the grounds upon which he relies in the contest.''
The Member whose seat is contested must, ``within thirty days after the
service thereof, answer such notice, admitting or denying the facts
alleged therein and state specifically any other grounds upon which he
urges the validity of his election.'' (R. S., secs. 105, 106.)
This notice and answer constitute the pleadings of the case and are
intended to present clearly the issue to be determined.
The notice filed by the contestant in this case contains 29
specifications, 18 of which were declared by his counsel to have been
abandoned, no testimony whatever having been offered in support of any
of them. They embraced charges against persons and matters in no wise
connected with the Congressional election. They were evidently not
intended to have any bearing upon the contest, but simply to place upon
record slurs, insinuations, and direct charges against persons not
parties to the proceeding and having no opportunity to defend
themselves. The reply of the contestee also contains much that is
objectionable and wholly unjustifiable, except as it may be stated to
be a reply in kind to the notice of contest. Contestant then filed an
additional paper, not authorized by law, containing matter still more
scurrilous and abusive. All three of these papers would, if contained
in pleadings in any court, be suppressed as scandalous and impertinent.
Your committee has no authority to suppress or alter them, but desires
as earnestly as possible to condemn the manifestly improper use of
papers, which are intended by the act of Congress to be the means of
enlightening the committee and the House as to the precise points at
issue in the contest, by making them vehicles of abuse and vilification
of each other by the parties to the contest, and particularly of third
parties in no way connected therewith.

2. As to the merits of the contest, the committee found that Mr.
Tompkins had an apparent plurality on the face of the returns of 18
votes. The report says:

The ballot in use in Ohio is of the form known as Australian, and
under the laws of that State each ballot about which there is any
dispute or question is required to be placed by the election officers
in a sealed envelope, with evidence showing whether it was counted or
not, and if counted, for whom. It is remarkable that in an election at
which 51,903 votes were polled there were only 25 such ballots. Some
-----------------------------------------------------------------------
\1\ First session Fifty-seventh Congress, House Report No. 1528.
Sec. 1126
of them were counted for contestant, some for contestee, some were not
counted at all, and as to others there is no evidence showing whether
they were counted or not, or if counted, for whom.
Having carefully examined these ballots and the law relating thereto,
your committee finds that a proper counting of them shows an increase
of 1 vote in favor of contestee, increasing his plurality to 19.

The committee go on to notice the charges of bribery made against the
sitting Member, and after analyzing the testimony rejected certain as
ex parte, certain other as hearsay, and other because it was shown that
it had been procured by the offer of bribes. Finally the committee
conclude:

But if the ex parte affidavits and the hearsay testimony were all
admitted and all the testimony accepted as true according to the
construction most favorable to contestant, it could not be found that
more than 10 persons had received or been promised, either directly or
indirectly, compensation to vote for Mr. Tompkins.
The integrity of the election returns is in no way attacked. No
election officer has been proved, or even charged, with any
irregularity whatever. No such general bribery in any precinct has been
shown as ought to require the entire return to be rejected. But if
there had we could not tell what precincts to throw out, as the
evidence as to some of the said 10 persons does not show in what
precinct or precincts they voted, and as to others does not show that
they voted at all. Furthermore, as to some of the 10 who are shown to
have voted, it does not appear whether they voted for Tompkins or
Lentz.
If we were convinced that any precinct ought to be thrown out
entirely we could not say whether to throw it out would benefit the
contestant or contestee, as we have not been furnished evidence showing
the vote by precincts. We have the vote by counties only. Surely we
could not throw out a whole county, even if it were clearly shown that
the 10 persons had been bribed and had voted.
The injustice of disfranchising more than 50,000 honest voters will
at once appear. There is authority in the minority report in Delano v.
Morgan, 2 Bart., 204, written by a former Speaker of the House, that as
the law of Ohio provides only for the punishment of persons offering or
receiving bribes, but does not declare their votes illegal, therefore
they must be counted. But we can not consent to this doctrine, holding,
as we do, that to receive and count a vote clearly shown to have been
cast as the result of a bribe would be in violation of the spirit, if
not the letter, of all laws tending to secure the freedom and purity of
the ballot.
If satisfied from the evidence that these 10 persons had been paid to
vote for contestee and bad so voted, your committee would not reject
the entire vote of the respective precincts in which they deposited
their ballots, even if we knew which precincts they were, or had
returns by precincts so that we might act upon them. We would not throw
out the entire precinct, but exclude the illegal votes, following
Robinson v. Harrison, Fifty-fourth Congress, Report 1121, Bowen v.
Buchanan, Rowell, 196. But the throwing out of such votes would not
change the result of the election.

On May 21 \1\ the report was considered by the House, and after brief
debate the House, without division, concurred in the conclusion of the
committee, and confirmed the sitting Member in his seat.
1126. The South Carolina election case of Johnston v. Stokes, in the
Fifty-seventh Congress.
Where the notice of contest was objected to as to specifications not
relating to vital questions, the Elections Committee disregarded the
objections.
A declination of members of one political party to participate at an
improvised poll legally conducted does not vitiate the vote cast.
The House, overruling its committee, declared the seat vacant in a
case wherein thousands of voters were kept from the polls by what it
deemed an unconstitutional registration law.
-----------------------------------------------------------------------
\1\ Record, p. 5755.
Sec. 1126
Instance wherein the House determined that a State registration law
was obnoxious to the State constitution.
The House declined to count votes of persons whose right to vote was
illegally nullified on the evidence of statements of fact signed by
those persons.
Discussion of a signed statement of an elector whose vote has been
refused in relation to the doctrine of res gestae.
Form of resolution declaring a contested seat vacant.
On April 13, 1902,\1\ Mr. John J. Jenkins, of Wisconsin, from the
Committee on Elections No. 3, submitted the report of the majority in
the case of Johnston v. Stokes, of South Carolina. The sitting Member,
on the face of the returns, had a plurality of 4,702 votes, but certain
corrections reduced this to 4,204.
A preliminary question had been raised by the sitting Member, who
insisted that the notice of contest was not sufficient under the law,
inasmuch as it failed to state particularly the grounds upon which the
contestant relied in the contest. But as the result did not turn upon
the objections, the committee went on and heard the case without
passing on the question. In the course of his argument \2\ before the
House Mr. Jenkins discussed these specifications quite fully.
Two features of the case, over which there was no argument as to law
or fact, were:
(a) At the precincts of Gadsden and Eastover the regularly appointed
election officers--all members of sitting Member's party--did not open
the polls. Thereupon members of the party supporting contestant
improvised a board of election and held an election, following all the
requirements of law. The voters of sitting Member's party declined,
however, to participate in this election. The committee were unanimous
in counting the votes of these precincts, which had also in fact been
allowed, at the request of counsel for both sides, by the State
canvassers.
(b) At Strawberry Ferry, after the official returns were made by the
precinct officers to the board of county canvassers, and before that
body proceeded to canvass the votes of Berkeley County, the ballot box
used at Strawberry Ferry, containing the votes cast at that precinct,
the official returns, poll list, and tally sheets, were all stolen. By
competent evidence it was proved that there were cast at that precinct
104 votes--92 for Johnston and 12 for Stokes-and the committee has
counted them for the respective parties, as proven.
Aside from these minor points the decision of the case turns upon the
registration law of South Carolina and questions arising out of its
application. No better statement of the facts in regard to this law can
be made than is contained in the brief minority views filed by Mr.
Samuel W. McCall, of Massachusetts, chairman of the committee, whose
views the House finally adopted.

I concur in the conclusion of the majority of the committee that the
contestant was not elected. The testimony, in my opinion, does not show
such a tender of votes on the part of the excluded voters, such as the
authorities require, as will justify the counting of a sufficient
number of them to overcome the adverse plurality. But while the
testimony is not sufficient for such a purpose, it does show a
wholesale exclusion of voters and an unfair application of the
registration law.
-----------------------------------------------------------------------
\1\ First session Fifty-seventh Congress, House Report No. 1229;
Rowell's Digest, p. 530.
\2\ Record, p. 5766.
Sec. 1126
The law only provides one registration place in each county, and only
one day for registration each month from December to June, inclusive.
Although the constitution provides that a male person otherwise
qualified shall have the right to vote who has resided in the precinct
sixty days before the election, the registration law, in fact, denied
him registration, and, consequently, the right to vote unless he had
resided in the precinct on the 1st day of July preceding the election.
This provision is clearly repugnant to the constitution of South
Carolina, which, under the pretense of regulating suffrage, imposes a
new qualification upon it and is, therefore, unconstitutional. I may
add that the chief justice of South Carolina and the judge of the
United States court for that circuit each rendered an opinion that the
law was unconstitutional, and although their associates held in each of
the cases presented that the court did not have jurisdiction, that fact
does not detract from the weight of the opinions.
The testimony shows that many voters, some of them coming 30 or 40
miles, appeared regularly at the places of registration from month to
month, and were denied registration by means of a systematic
obstruction. It shows further that many thousand men who had the
constitutional qualification, but were not registered, and who
therefore had the right to vote if the registration laws were
unconstitutional, expressed their desire to vote by going to the polls.
Doubtless many thousands more unregistered voters remained at home who
would have come had they not known that a rule requiring registration
certificates was in force and that they would be excluded if they came.
``If the officers conducting an election adopt and enforce an
erroneous rule as to the qualification of voters which prevents certain
legal voters who offer to vote from giving in their votes, and being
made known prevents other legal voters similarly situated from offering
to vote, the election may be set aside, especially if it appear that
such votes if offered and received would have changed, or rendered
doubtful, the result. After a decision has been made by the election
officers affecting the right of a class of voters to vote and that
decision becomes known, it is not necessary that every voter belonging
to such class should offer his vote and have it formally rejected.''
(McCrary on Elections, third edition, section 241; Scranton borough
election case, Brightly's Election Cases, 4,55.)
The colored race is enormously in the majority in this district, and
it appears that as a rule the voters of that race in that district were
Republicans. Believing that the registration law of South Carolina was
unconstitutional, I am constrained to find from the evidence in this
case that if said law had not been applied at all, or even fairly
applied, the result would probably have been different, and I am
therefore not able to give my assent to the conclusions of the majority
of my colleagues that the contestee was elected.

The entire committee were--unanimously of the opinion that this
registration law was unconstitutional, and all arguments proceeded on
the basis that such was the fact.
The contestant, realizing that this registration law was the means of
disfranchising his supporters, had printed in advance and distributed
to list keepers at the several polling places the following forms of
petition:

To the honorable Senate and House of Representatives of the United
States in Congress assembled:
The petition of the subscribers, citizens of the State of South
Carolina, respectfully showeth
That your petitioners are over the age of 21 years and male residents
of the county of Colleton, and the voting precinct of Walterboro, in
the county and State aforesaid, and are legally qualified to register
and vote.
That on this the 6th day of November, 1894, they did present
themselves at said voting precinct in order to vote for Member of
Congress, and that they were denied the right to vote.
That your petitioners have made every reasonable effort to become
qualified to vote according to the registration law of this State, but
have been denied an equal chance and the same opportunity to register
as are accorded to others of their fellow-citizens.
Your petitioners desired and intended to vote for Hon. Thomas B.
Johnston for Member of Congress
Wherefore your petitioners pray that you investigate the facts herein
stated and the practical workings of the registration and election laws
of this State and devise some means to secure to us the free exercise
of the rights guaranteed to us by the constitution of this State and
the laws and Constitution of the United States, and your petitioners
will ever pray, etc.
Sec. 1126
An aggregate of 7,336 names were signed to petitions of this kind,
the signatures being made sometimes by the person and sometimes by the
list keeper or another who was authorized to sign.
The main issue of the case arises over the admissibility of these
lists as testimony that the person whose vote was rejected was a
legally qualified voter, that he actually made a tender of his vote,
and that the vote so tendered was a vote for contestant.
Two distinct questions are involved in this branch of the case: (1) A
question of law, and (2) a question of facts.
1. As to the question of law.
A minority of the committee, composed of Messrs. Jesse Overstreet, of
Indiana, James A. Walker, of Virginia, and Henry F. Thomas, of
Michigan, contended that the lists were competent evidence. They say in
their views:

The evidence discloses that, on account of the very large number of
voters who were present at the polls and desired to vote for the
contestant, and made effort to cast their votes and failed, it was
impossible to take the evidence of each separate voter, and to
facilitate the matter and properly show the entire conditions that
existed, and the number of voters thus deprived of their vote, lists of
voters were kept by various parties at the precincts; and the person
keeping said lists submitted himself to examination and testified to
the facts, and it is sought by the contestant to admit in evidence
these lists so prepared as above stated.

After describing the form of the petition, they say--

Nor should we be unmindful of the truth so we11 expressed in Reed v.
Kneass (Brightley's Election Cases, 260):
``The true policy, to maintain and perpetuate the vote by ballot, is
found in jealously guarding its purity, in placing no fine-drawn
metaphysical obstructions in the way of testing election returns
charged as false and fraudulent, and in assuring to the people by a
jealous, vigilant, and determined investigation of election frauds,
that there is a saving spirit in the public tribunals charged with such
investigations, ready to do them justice if their suffrages have been
tampered with by fraud, or misapprehended through error.''
This language is quoted with approval in McCreary on Elections,
section 467, and the author adds:
``It is the spirit of this rule that questions respecting evidence in
contested-election cases should be solved.''
No doubt it is true, as a general proposition, that the party
offering evidence is required to produce the best evidence of which the
case in its nature is susceptible, but it will be observed that the
nature of the case is to be considered. Here a class of men numbering
thousands was denied the right to vote because of the nature, as well
as the administration, of the registration law of South Carolina. To
have examined each of these witnesses concerning each and all of the
facts establishing his right to registration and to vote, proving the
incidents of the attempt or failure to exercise the right of suffrage,
and subjecting the witnesses to lengthy cross-examinations by
contestee's attorneys, would have required more time than the law
grants for the taking of testimony and have caused a miscarriage of
justice. And so it became incumbent upon the contestant to offer the
best evidence that he could command within the limitations and
conditions existing, and he did that by furnishing the written
declarations of these men as to their qualifications, efforts, and
purposes, supplemented by the testimony of men who knew them, to the
effect that they were entitled to but were denied the right of
suffrage. Where there is no substitution of evidence, but only a
selection of weaker instead of stronger proofs, or an omission to
supply all the proofs capable of being produced, the rule concerning
the production of the best evidence is not infringed. (1 Greenleaf on
Evidence, 14 ed., sec. 82.) We submit that the contestant's evidence
was a selection of weaker instead of stronger proofs, and for the very
best of reasons, considering reasons from the standpoint of existing
conditions and not of theory.
Sec. 1126
They then proceed to refer to the text writers and the precedents,
Greenleaf on Evidence, the New Jersey, or Broad Seal case, Vallandigham
v. Campbell, certain English cases,\1\ etc., and say:

The principle underlying the Congressional cases above cited is this:
That the declaration of a voter, or one entitled to vote at a given
election, made at or in the vicinity of the voting place immediately
following his effort to vote, concerning his own acts and
qualifications or disqualifications, are parts of the res gestae, and
are admissible in evidence. In voting or in attempting to vote, or in
being present at the polls with the desire to vote, the voter is
discharging, or attempting to discharge, or desiring to discharge one
of the most solemn and momentous duties of citizenship, and to us it
seems clear that his every act and word calculated to show in any
degree what his purposes or qualifications were are clearly admissible
in evidence as part of the res gestae. This evidence may be furnished
by the depositions of others, or by the written statements of others,
made at the time, preserving and exhibiting the statements or
declarations or admissions, either oral or written, made by the voter
or the nonvoter, as the case may be, as is clearly established by the
preceding authorities.

After announcing their endorsement to the following statement of
principle made by counsel in the case--

We are aware that, while the same general rules of evidence which
govern courts of law are observed in the investigation of contested
election cases, yet the rules of evidence are applied by the committee
more according to their spirit than with the technical strictness
observed by ordinary judicial tribunals.

The minority call attention to the fact that the declarations of the
rejected voters ``were brought into the record by the depositions of
the men who made the lists, or who signed to the petitions the names of
the rejected voters at their request,'' and say:

These authorities, and the reasoning upon which they are predicated,
clearly show that the declarations of those who were deprived of the
privilege of voting on election day are competent evidence in support
of the allegation that they were lawful voters, intended to vote, were
deprived of that privilege, and would have voted for contestant. These
declarations were made at the time of holding the election, and to
persons in or near the voting places. They related to the subject-
matter of the election, formed a part of the history of the
transactions of the election, and were in the highest and truest sense
parts of the res gestae.

Further, in debate,\2\ Mr. Overstreet explained that the minority
counted only the lists where the voters in person approached the list
keeper in the vicinity of the polling booth immediately after the
rejection of the vote and disclosed to him the facts which showed his
qualifications; and second where the persons did not approach the list
keeper, but where the latter swears that he saw the vote rejected, and
also swears to the facts that show the person to have been a qualified
voter and belonging to a political party supporting contestant. In
cases where a third person, not the list keeper, deposed to the fact
that the list was kept, or where the lists were not kept, at the
polling place, the minority rejected them.
The majority of the committee--and on this feature of the case Mr.
McCall concurred with them--decline to accept the lists as testimony.
The report says:

No doubt it is the safer and better rule, when the evidence will
warrant it, and as this House has done in many instances since the
Nineteenth Congress, to count lawful votes, lawfully tendered and
unlawfully refused, when the number is sufficient to change the result
and it is known for what candidate the elector intended to vote. But
before the vote can be counted, it ought to appear by competent
evidence that qualified electors, sufficient in number to change the
result, had lawfully tendered their
-----------------------------------------------------------------------
\1\ Pages 22-26 of report.
\2\ Record, pp. 5868, 5871.
Sec. 1126
votes and were unlawfully rejected, and for whom the rejected electors
would have voted if they had been permitted to vote.
Certainly this is as far as any court or legislative body ought to
go. But in this case, to unseat the contestee, this House is asked to
go further--to receive the declarations of a supposed elector in order
to count his vote--a position not sustained by any law writer or
judicial authority anywhere. Yet even if this was the law and rule of
the House it would not affect the right of the contestee to his seat in
the House, because under it not a dozen votes could be counted for the
contestee according to law and evidence.
An examination of the evidence will prove that, with very few
exceptions, no declarations were made, not even anything that could be
called hearsay evidence, and if what are called declarations are
admissible none of the same are sufficient to show that a qualified
elector lawfully tendered his vote and was unlawfully rejected, and for
whom he would have voted if permitted to vote. Moreover, all of these
so-called declarations were made away from the polling place and
subsequent to any offer-or attempt to vote, even if any such were made.
Yet it is asked, on this class of testimony, that enough votes be
counted to impeach the certificate of election held by the contestee.

In the debate \1\ Mr. Jenkin more specifically criticized the
petition, calling attention to the fact that the signers do not even
declare that they tried to vote, but say that they desired and intended
to vote; that they were not in fact declarations or even memoranda.
The report of the majority continues further in this line:

It is also difficult to understand what reliance can be placed upon
the lists as evidence, if the heading to the lists contained all the
necessary elements to justify the counting of the votes. The signing of
the same would not make the lists evidence. It would only be ex parte
evidence at the best. It would not be as strong as an affidavit, and
certainly an ex parte affidavit would not be considered as evidence,
for a party has a right to be present when witnesses are examined in
his case and participate in the examination.
If the mode of procedure had in this case is permitted, this valuable
right would be denied. Not a fact that must be proved in order to count
a vote can be found in the headings of the lists. There is no statement
in the heading that they tendered their vote or that they belonged to a
class of electors that were denied the right to vote by the election
officers. If the declaration of the elector who was denied the right to
vote can not be received, certainly the headings of the petition can
not be admitted as evidence for a declaration.
No doubt a few votes can be counted, but not enough to make mention
of; but independent of that there is no evidence to show declarations
of electors as to their qualifications, intentions, or efforts to vote.
It is elementary that hearsay evidence is not admissible in election
cases. The same rules of law apply in election cases as in all other
cases, and while the power of the House is very great in election
cases, yet its actions should be governed by law and evidence. It is
not only just, but safe.
If the House, uninfluenced by partisan feeling, decide election cases
according to the established principles of law and rules of evidence,
it will come nearer doing exact and equal justice; and it will be
establishing a dangerous precedent to admit what is offered in this
case to impeach the title to a seat in this House.
It was argued upon the part of the contestant that these lists, etc.,
might be received as a part of the res gestae. It certainly is no part
of the res gestae, for anything said or done after the vote was
rejected and the elector had gone away from the polls would have no
connection whatever with the principal fact, which in this case was
what was said and done by the elector at the polls when offering to
vote. But even this position would fail from the fact that no
declarations were made, if correct as a proposition of law.

The question of the res gestae was also gone into very thoroughly in
the debate.\2\
(2) As to the facts relating to the petitions.
The minority of the committee did not contend that all of the 7,366
names on the lists should be credited to contestant. They credited him
with 4,523 votes--
-----------------------------------------------------------------------
\1\ Record, pp. 5909, 5910.
\2\ See remarks of Mr. Powers, of Vermont, Record, p. 5904.
Sec. 1126
enough to show his election--adopting principles governing their
rulings, illustrated by the following cases:

(a) In Calleton County they count the lists for these reasons:

The lists of voters taken at the various precincts in said county
were brought into the record by the witnesses who took the declarations
from the voters immediately after the vote was rejected and in the
vicinity of the polling place, the qualification of all of said voters
whose ballots were so rejected being shown either by the heading of the
petition or paper upon which their names were entered or by the
statement of the voter himself, for the paper, being signed by the
voter or by one authorized to sign it for him, discloses the
qualification and intention of the voter, and therefore becomes a part
of the declaration itself; and, taken together, all constitute one and
the same transaction, and each of said votes should be counted the same
as if each of the voters themselves had come upon the stand and
testified singly to the same statements.

(b) In Sumter County a more liberal rule was followed:

Lists of voters whose votes were rejected were kept by persons who
testify in the case, but at these precincts the voters whose votes were
so rejected did not make the declaration to the persons who kept the
lists, but an examination of the evidence shows that the witnesses who
testify to having kept these lists testify to the qualification of the
voters and the fact of their rejection, and testify also that these
voters belong to the Republican party; and, as herein before held,
inasmuch as Johnston was the regular candidate of the Republican party,
it is reasonable to assume that the voters at these precincts mentioned
intended to cast their votes for the contestant, and we therefore count
the votes at these precincts.

The minority also say:

Objection is made in the majority report of the committee that all of
these lists are not properly tendered in evidence, and therefore can
not be considered as part of the record. But, while it is true that the
formal technical presentation of the list, filed as an exhibit, was not
resorted to in each case, yet the lists themselves appear in the record
and are subject to the scrutiny and criticism of the committee; and,
inasmuch as they conform to the testimony introducing them, it is our
opinion that the objection to their form of presentation is too
technical to warrant their exclusion, and we have therefore considered
them as having been properly introduced in the case.

The majority of the committee do not admit the contention that the
lists justify the addition of the number of votes allowed by the
minority, even in view of their admission as evidence. Mr. James H.
Codding, of Pennsylvania, who filed views of his own,\1\ called
attention to three precincts, on the lists of which contestant was
credited by the minority with 293 votes (the minority contention only
allowed him a plurality of 233 votes), on evidence that did not come up
even to the rules established by the majority.
From the different views of the case, the majority proposed to
declare sitting Member entitled to the seat; the minority proposed to
seat the contestant, and Mr. McCall proposed to declare the seat
vacant, on the ground that there had been no valid election.
The report was debated fully and ably in the House on May 26, 28, and
29.\2\ On the latter day the proposition of the minority, to award the
seat to the contestant, offered as a substitute, was rejected--yeas 95,
nays 105 \3\--and at the same time the majority resolution declaring
contestant not elected was agreed to--yeas 103, nays
-----------------------------------------------------------------------
\1\ These views do not appear with the report, but were presented in
the House on May 28, and may be found in the Record, p. 5875.
\2\ Record, pp. 5756, 5866, 5897-5915.
\3\ Journal, pp. 552, 553.
Sec. 1127
99. On June 1 this latter vote was reconsidered, and Mr. McCall offered
as a substitute for the majority resolutions the following:

That there was no valid election for Representative in the House of
Representatives of the Fifty-fourth Congress from the Seventh
Congressional district of South Carolina on the sixth day of November,
eighteen hundred and ninety-four, and that neither Thomas B. Johnston
nor J. William Stokes is entitled to a seat therein.

This substitute was agreed to--yeas 130, nays 125. Then the
resolutions of the majority, as amended, were agreed to.\1\
1127. The Virginia election case of Wilson v. Lassiter in the Fifty-
seventh Congress.
Incompetent testimony and long statements by counsel tending to
present such evidence should not be included in the record of an
election case.
The mere existence of frauds and irregularities does not vitiate an
election if insufficient to affect the result.
On June 30, 1902; \2\ Mr. Kittredge Haskins, of Vermont, from the
Committee on Elections No. 3, submitted a report in the case of Wilson
v. Lassiter, of Virginia. The sitting Member in this case was returned
by an official majority of 4,738. The committee concluded:

That while the evidence shows that frauds and irregularities were
practiced in the interest of the contestee it falls short of being
sufficient to legally justify a change in the result of the election.

The minority of the committee concurred in the result, but not in
admitting that frauds were shown.
On an incidental question the report says:

The practice of introducing into the record in contested election
cases, as was done in this case, testimony clearly incompetent and
irrelevant, and long statements by counsel intended to convey
information as to facts which could not be properly proven, is
inexcusable and deserves to be severely condemned.

This report was not acted on at this session of Congress.
1128. The Missouri election case of Wagoner v. Butler in the Fifty-
seventh Congress.
The returns of 41 out of 116 election precincts being rejected, the
contestant was seated on his plurality in the remaining precincts,
which cast over half the returned vote.
Offlcial copies of registration lists, such copies made in pursuance
of law, were admitted as evidence of the registration by a divided
committee.
A fraudulent registration was held to justify a conclusion that a
conspiracy existed to perpetrate fraud in the election.
Instance wherein the city directory and a canvass by means of
registered letters was accepted to discredit a registration.
Where a law requiring ballots to be numbered, even though directory
merely, was totally disregarded, and the poll books and ballot boxes
disagreed essentially, the returns were rejected.
-----------------------------------------------------------------------
\1\ Journal, pp. 557, 558.
\2\ First session Fifty-seventh Congress, House Report No. 2744.
Sec. 1128
In a district where gross frauds prevailed generally irregularities
in the reception and record of the ballots were held to justify
rejection of the return.
On February 24, 1903,\1\ Mr. Marlin E. Olmsted, of Pennsylvania,
presented the report of the majority of the Committee on Elections No.
2 in the Missouri case of Wagoner v. Butler. The sitting Member had
been returned at a special election, November 4, 1903, by a plurality
of 6,293. The report thus states the circumstances of the case:

At the regular Congressional election in 1900 James J. Butler, the
Democratic candidate, was returned as having been elected to membership
in the Fifty-seventh Congress by a plurality of 3,553. His Republican
opponent, William M. Horton, contested his election.
That case was heard by Committee on Elections No. 1, which, in an
able and exhaustive report \2\ presented by its chairman to this House
April 5, 1902, found that frauds numerous and varied had been so
extensively practiced in or relating to said election that the honest
choice of the voters could not be determined, and recommended a
resolution, adopted by this House June 28, 1902, to the effect that
there had been no valid election and that the seat held by Mr. Butler
be declared vacant. The governor of Missouri ordered a special election
to fill the vacancy thus caused, which special election was held
Tuesday, November 4, 1902, that being also the day for the regular
election of Representatives in the Fifty-eighth Congress. Mr. Butler
was returned as elected to fill the vacancy in this present Congress
caused by his own unseating and by the increased plurality of 6,293. He
took the oath of office December 1, 1902, and now occupies the seat of
which he was once deprived by the action of this House, as above
indicated.
His counsel informs your committee that at the same election Mr.
Butler was also elected to membership in the Fifty-eighth Congress and
by a still larger plurality. No evidence concerning that election has,
however, been presented to your committee, and with it this Congress
has, in any event, no concern.
Mr. Wagoner, who was not a candidate for membership in the Fifty-
eighth Congress, contests the election of Mr. Butler for the remainder
of the Fifty-seventh Congress and claim himself to have been lawfully
chosen to fill the vacancy.
The notice of contest charges that in and with respect to 63 election
precincts, hereinafter named, there were practiced nearly every variety
of fraud yet devised for producing unfair and dishonest political
results, such as padded registration, repeating, false personation, the
reception of ballots from persons whose names were not upon the
registration books and, therefore, under the laws of the State of
Missouri, not entitled to vote at all, the stuffing of ballot boxes,
fraudulent conspiracies on the part of election officers to prevent
free voting and honest returns, improper interference by the police,
intimidation, and, in some instances, actual violence. As to some, if
not all, of these precincts the charges are well sustained by proof.
The Twelfth Congressional district comprises certain wards and parts
of wards, and is wholly within the city of St. Louis. It extends across
the city from east to west, the western end, however, being
considerably wider and greater in extent than the eastern, which
borders upon the Mississippi River. No complaint is made as to the
election in the western portion of the district, but the middle and
eastern portions embrace what are, let us trust, the worst portions of
the city, and contain the lowest classes of her inhabitants. Saloons,
bawdy houses, low theaters, mule stables, boarding houses for
roustabouts, gambling houses, etc., here abound in great profusion, and
the field is well adapted to corrupt political practices.
The district comprises 116 election precincts. As to 53 of these,
counsel for the parties mutually agree that there were no such
irregularities as would justify the setting aside or modification of
the returns.

As to the 63 precincts remaining in dispute, the majority found that
in 41 it was impossible to determine the true and lawful vote, and
therefore that the returns
-----------------------------------------------------------------------
\1\ Second session Fifty-seventh Congress, House Report No. 3857.
\2\ First session, Fifty-seventh Congress, House Report No. 2744.
Sec. 1128
should be rejected. These returns from the 41 precincts had given
Butler 9,239 and Wagoner 2,179, a majority of 7,060. So it is evident
that the rejection of the 41 precincts gave to contestant a majority of
1-67 in the district. The vote returned for contestant and sitting
Member together in the whole district was 27,395, and the total vote
for both in the rejected 41 precincts (out of 116 precincts in all) was
11,418. So the portion rejected was less than half the vote and less
than half the precincts.
In discussing the reasons justifying the rejection of the precincts
in question, the majority first describe the registration system.

The so-called ``Nesbit law,'' adopted in 1899, provides election
machinery applicable to the city of St. Louis only.
Counsel for contestant claim that the provisions of this law give
partisan control of the election machinery and facilitate the
perpetration of corrupt practices. Counsel for contestee claims that
some of its most objectionable provisions were eliminated by the
supplementary act of 1901. It appears that in 1898, just prior to the
adoption of the Nesbit law, this particular district elected a
Republican Congressman by a majority of 2,321, but since the adoption
of the law Democratic majorities have invariably been returned. This of
itself may or not prove anything. It seems to your committee that the
law, even as amended, contains some very objectionable features.
The entire election machinery of the whole city is placed under the
control of a ``board of election commissioners,'' composed of three
members appointed by the governor for the term of four years. The law
does, indeed, provide that ``one of said commissioners shall be a
member of and belong to the leading party politically opposed to that
to which the governor belongs.'' Nevertheless, he is selected by the
governor and not likely to be very antagonistic to the party whose
governor confers upon him the position. It is provided that ``said
election commissioners shall make all necessary rules and regulations,
not inconsistent with this article, with reference to the registration
of voters and conduct of elections, and shall have charge of and make
provisions for all elections, general, special, local, municipal, State
and county, and of all others of every description to be held in such
city or any part thereof at any time.''
The voters in the several election precincts are not permitted to
select their own judges, inspectors, and clerks of election, but this
board of three election commissioners appointed by the governor is
authorized to select for each polling place four judges and two clerks
of election. It is, indeed, provided that two of the judges and one of
the clerks shall be ``designated'' by the minority commissioner. It
requires, however, the concurrence of at least one of the majority
commissioners to make this designation effective.
The provision of the Nesbit law with reference to registration is a
striking feature, and, it is believed, unknown to the election
machinery of any other city. A voter may upon a certain day register in
the precinct in which he lives, but except upon that day registration
must be made outside of the precinct, and in many cases outside of the
Congressional district, at the office of the central board of election
commissioners. The provisions of the Nesbit law upon this matter of
registration afford a wide field for fraud. It appears from the
testimony that by far the greater portion of the names appearing upon
the registration books were placed there not in the precincts where the
voters lived, but at the central office of the board of election
commissioners.
The four judges of election in each precinct are constituted by law a
board of registration for their precinct, but, as already stated, the
majority of registrations are made at the office of the board of
election commissioners and not with the precinct board.
The general board is required to furnish to the precinct board
verification lists. No new, names are permitted to be added after ``the
Saturday following the Tuesday three weeks preceding such election,''
but the clerks of election are constituted canvassers of their
respective precincts and, being supplied with the verification lists,
may ``come together and canvass their precinct, calling at each
dwelling house for the purpose of verifying the register.'' When that
has been done a further meeting is to be had for corrections of the
registration. Then it is provided by law that--
* * * * * * *

Sec. 1128
``Sec. 7238. Judges shall sign registry--registry to be sent to
commissioners--commissioners to proceed--how lists public records.
``At the end of the last session provided for the said board of
registration and said clerk shall compare and correct the registers
aforesaid and make them correspond and agree; and said judges shall
then, immediately following the last name on each page of the register,
sign their names so that no other name can be added without discovery,
and shall return the two registers to the possession of the election
commissioners; thereupon the said commissioners shall at once cause
copies to be made of such registers, of all the names upon the same,
with the address, and arranged according to the streets, avenues, or
alleys, commencing with the lowest number and arranging the same in
order according to street numbers, and shall then cause such precinct
register, under such arrangement, to be printed in sufficient numbers
to meet all demands, and upon application a copy of the same shall be
given to any person in such precinct. Said registers in the office of
the election commissioners shall be public records and open to public
inspection.''

Duly authenticated copies of these precinct registers were presented
in the testimony and relied on by the majority.
The minority views \1\ present testimony to show the unreliability of
the lists, and say:

The lists above referred to, which are named ``Exhibit C, of January
3, 1903, on the part of the contestant,'' and are made a part of the
record in this case, were introduced on January 3, 1903, with the
testimony of Louis P. Aloe, which appears on page 289 of the record.
Mr. Aloe identified them as official lists of the registered voters of
the various precincts, as issued by the election commissioners' office
for the convenience of voters, official, however, only, as he
afterwards stated, in the sense that they were issued by the election
commissioners' office. He states that these sheets were printed from
the verification lists which are prepared by the judges and clerks of
election in the various precincts as provided for by section 7233,
which is as follows:
``Sec. 7233. Verification lists--challenges.--The election
commissioners shall prepare and furnish to the board of registration in
each precinct two blank books to be known as `verification lists,' each
page to be ruled into columns and contain pages sufficient for each
street, avenue, and alley in the precinct. During the progress of
registration or immediately thereafter, the clerks of said board shall
transfer all the names upon the register to the left-hand pages of such
`verification lists,' arranging them according to the streets, avenues,
alleys, or courts, beginning with the lowest residence number and
placing them numerically, as nearly as possible, from the lowest up to
the highest number. They shall, first write the name of such street,
avenue, alley, or court at the top of the second column and then
proceed to transfer the registered names to the pages of such
`verification lists,' headed `Registered names,' according to the
street number, as above indicated.
``If, during either day of registration, a registered voter of the
ward shall come before the board of registry and make oath that he
believes that any particular person upon such registry is not a
qualified voter, such fact shall be noted, and after the completion of
such `verification lists,' such board or one of said judges shall make
across or check a in ink opposite such name upon each of said
`verification lists.' If such judges shall, however, know that any
person so complained of is a qualified voter, and shall believe that
such complaint was only made to vex and harass such qualified voter,
then such cross or checked mark shall not be put upon such lists. Said
board of registration shall, before 8 o'clock on the following day,
return said `verification lists' to the office of such election
commissioners.'' (New section.)
The above section is contained in the law of 1895 and is no part of
the much-abused Nesbit law.
It will be seen that these registration sheets, upon which the
majority of the committee rests so much of their case, can not be said
to have special verity or genuineness of character to be admitted as
evidence of the actual legal registration in any court in the United
States. It is not suggested that they have the color of verity in any
degree, such as would examined copies or certified copies of the
registration books.
-----------------------------------------------------------------------
\1\ Presented by Mr. John J. Feely, of Illinois.
Sec. 1128
They are not copies of the registration books. They are not even
copies of copies of the registration books, but they are arranged from
verification lists, which verification lists are made up by taking the
names of the registered voters from the registration books and
arranging them by streets, avenues, and alleys, commencing with the
lowest street number of any voter registered from any street, etc.

The majority report finds from testing the registration that it was
to a large extent false and fraudulent and that the conclusion
therefrom is irresistible that a conspiracy existed in the district to
perpetrate systematic fraud in the interest of sitting Member:

Contestant addressed or caused to be addressed and sent through the
post-office a registered letter to each person whose name and address
were thus shown to be registered in the 63 precincts in controversy.
The total number of registered letters thus Mailed was 25,179. Of this
number, 12,608 were returned, with endorsements bearing the number of
the letter carrier and statements to the effect that the parties were
not found at the address given. These letters were mailed, some on the
16th and some on the 17th of December following the election.
Of the 25,179 names appearing on the officially published registry
lists, 16,045 do not appear in the city directory for 1902, and, as
will hereinafter appear, thousands of votes were cast and counted in
names not appearing upon either.
Four thousand six hundred and sixty-nine of the registered letters
returned bore the statements of the letter carriers to the effect that
the parties to whom they were addressed had ``removed.'' Of this 4,669
names of persons appearing upon the registry lists, all of whom
``removed ``shortly after election, only 245 grace the pages of the St.
Louis city directory for 1902.
These registry lists, printed by authority and required by law to be
published for the information of the public as to the registration in
each precinct, were offered and received in evidence, with no objection
whatever on the part of the contestee, either as to their authenticity
or relevancy, or as to their not being the best evidence. But the
minority election commissioner was cross-examined and subsequently
called on behalf of contestee for the purpose of showing that they were
not correct. He actually testified that they were not, but that a great
many of the names which were actually upon the registration books in
his office were not included in these printed sheets.
Contestee also placed in evidence the certificate of the secretary of
the board of election commissioners, showing 425 names upon the
original registration book of Ward 22, precinct 1, whereas the printed
registry sheets showed only 205; also a similar certificate showing 676
names upon the registration book in the office of the board of election
commissioners from Ward 4, precinct 7, although the printed registry
sheets showed only 169.
These exhibits, offered on behalf of Mr. Butler, seem to your
committee to present the highest evidence of fraud. No names could have
been honestly placed upon the registration books after the published
registry sheets were given out except in a few cases of persons who,
having been refused registration in their respective precincts, had
appealed to the board of election commissioners. The testimony of the
minority commissioner is to the effect that there were not more than
forty of such cases in the entire city of St. Louis, but in this
Congressional district alone thousands of persons voted whose names
were not upon the printed registry lists, and it now appears from the
contestee's own testimony that in one of the precincts above mentioned
less than half the names upon the registration books were contained in
the printed sheets and in the other less than a fourth.
This same state of affairs, extending throughout the entire district
or at least throughout the 63 precincts in controversy, shows
premeditated and deliberate fraud, for either thousands of names were
illegally added to the registration after the giving out of the printed
sheets or else thousands of the names upon the registration books were
deliberately and intentionally omitted from the published lists for the
purpose of depriving the public of ascertaining or knowing the extent
to which false registration had been made. No such glaring
discrepancies as are here apparent can possibly be accounted for upon
the ground of accident or ignorance.
Counsel for Butler has insisted with great earnestness that the
evidence as to the sending out of the registered letters and the
results thereof was improperly offered by contestant in rebuttal and
ought not, therefore, to be considered by your committee. The fact
appears to be, however, that the
Sec. 1128
sending of such letters having become public, the person who had charge
of the matter was called by contestee himself and much information
concerning the results elicited.
An attempt was also made by contestee to impugn the character of this
witness, for the purpose of discrediting his evidence as to the number
of letters sent out and those returned. The contestee himself having
proceeded so far in the taking of testimony upon the subject, your
committee is unable to see that it was not proper for contestant, in
rebuttal, to place in evidence the letters themselves, bearing the
returns of the letter carriers who had attempted to deliver them. We
are not prepared, however, to accept the conclusions which the
contestant asks us to draw from this testimony. In a given case a man
may have been lawfully entitled to vote, although his name did not
appear in the city directory published some months before the election,
and he was not found by the letter carrier a few weeks after the
election. We therefore decline to cast out any particular vote or votes
upon that ground.
Nevertheless the fact that so great a number of names appearing upon
the registry list could not be found either in the directory or by the
letter carriers does throw suspicion upon the integrity of the
registration. When this is coupled with evidence offered by the
contestee himself to show that thousands of names were found upon the
registration books which do not appear in the printed lists, and were
therefore not embraced within the registered-letter scheme of
detection, and that the votes of such persons not upon the registry
lists were received by hundreds and thousands throughout these 63
precincts, the conclusion is irresistible that there was premeditated
and systematic fraud perpetrated in the interest of the contestee.
It appears from the evidence that, although the law of Missouri
expressly provides that no vote shall be received from any person not
registered, there were in these 63 precincts actually cast for Mr.
Butler 3,017 ballots and for Mr. Wagoner 636 ballots by persons whose
names did not appear upon the printed registry sheets submitted to the
public. Higher evidence of fraud it would be difficult to imagine.
The constitution of Missouri expressly provides ``that in all cases
of contested elections the ballots cast may be counted, compared with
the list of voters, and examined under such safeguards and regulations
as may be prescribed by law.''
There appear in the evidence in this case the complete registration
lists for these 63 precincts, showing the name of every person
registered according to the information which the election
commissioners supplied to the public immediately before election. Also
the poll books giving the name and address of every person who appeared
and voted, or at least in whose name a ballot was deposited, and, the
boxes having been opened, the evidence showing for what candidate for
Congress the ballot voted in that name was cast. With all this
information before us it is possible to detect some, though not all, of
the frauds which have been perpetrated.

The report proceeds to consider each of the 41 precincts in detail.
In several of these there is direct affirmative testimony as to the
fraudulent character of the registration, the witnesses being
personally cognizant of frauds. In the Fourth Ward, ninth precinct,
where a mob assaulted and badly injured an election officer of
contestant's party, the following state of facts was disclosed, as
viewed by the majority:

We have in evidence the registration list, which contains, or ought
to contain, the names of all persons entitled to vote in this precinct.
The manner in which it was made up appears from the testimony cited.
There has been also offered in evidence the poll book, which, as that
term is used in Missouri, means a book supplied in blank and in
duplicate to the election officers. The numbers 1, 2, 3, etc., are
printed at the beginning of each line. The name and address of the
first person who appears and votes is, or should be, written in the
first line. The name and address of the second person in the second
line, etc.
Each voter is, or should be, given a ballot numbered to correspond
with the number of the line upon which his name and address are
written. This poll book, which is thus made up as the voting proceeds,
should show the name and address of each person voting. It has been
offered in evidence (p. 459). It contains the names, addresses, and
numbers of 258 persons who are supposed to have appeared and voted in
this precinct.
The ballot box was opened, and commencing on page 796 will be found a
statement showing the number of each ballot found therein and the name
of the candidate for whom said ballot was voted for the
Sec. 1128
short term for Congress. A study of these tables shows remarkable
results. According to the poll book 258 persons, and no more, whose
names and addresses are given, appeared and voted. There were found in
the ballot box 260 ballots. According to the poll book 258 was the
highest number of ballot voted, but there were found in the box ballots
numbered 270, 275, 302, 303, 304, 305, 306, 307, 308, 310, 312, 314,
315, 317, 318, 319, 320, 321, 323, 328, 335, 349, 351, 352, and 898-25
numbers in all, none of which appear upon the poll book, and all of
which were counted for Butler.
Another remarkable fact is that ballots numbered 43, 115, 117, 118,
120, 121, 122, 123, 124, 125, 126, 127, 128, 130, 131, 134, 136, 137,
138, 139, 142, 144, 146, 149, 150, 151, 152, 154, 156, 157, 158, 159,
160, 161, 162, 163, 164, 167, 168, 180, 181, 182, 183, 185, and 222--45
in all, were voted and counted twice for Butler, while ballot number
137 was voted and counted three times for him. In other words, these 46
persons in repeating did not even take the usual precaution of voting
under different names. How many times they voted under other names will
never be known.
The further fact, still more significant if possible, is that as to
77 names of persons appearing in the poll book no corresponding ballots
are found in the box at all. These numbers are 3, 5, 12, 13, 20, 34,
37, 39, 46, 48, 52, 55, 56, 61, 64, 71, 77, 78, 80, 89, 105, 109, 111,
112, 113, 178, 187, 188, 190, 191, 194, 195, 196, 197, 198, 199, 200,
201, 202, 203, 204, 205, 206, 207, 208, 209, 211, 213, 215, 216, 221,
226, 227, 228, 231, 233, 234, 236, 237, 238, 242, 243, 244, 245, 246,
247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, and 258.
Thus, if the integrity of the poll book can be assumed, it appears
that 77 ballots cast were not found in the ballot box at all, their
places being supplied in part by the duplication of other numbers upon
the poll book and the addition of 25 numbers not found on the poll
book. Those who fixed up this return tried to make the accounts
balance. There were 258 names and numbers on the poll book, and they
returned 258 votes, 237 for Butler and 21 for Wagoner. But even
counting the 45 duplications and 1 triplication and the 25 additional
votes not accounted for on the poll book at all, there were in the box
only 227 ballots bearing Butler's name, while there were 28 bearing
Wagoner's, 3 bearing the name of Artz, and 1 containing no name for
Congress.
Election signifies choice. In view of this array of facts it needs no
argument to show that the returns from this precinct afford no evidence
whatever as to the choice of the voters. The registration, the conduct
of the election, the poll books, and the returns are all fraudulent and
utterly unreliable. There was ballot-box stuffing and ballot-box
robbing, and nearly every form of irregularity known to political
history.

The minority admit in their views that the returns of the above-
mentioned precinct should be rejected.
On another precinct, No. 10, of Ward 15, an issue is joined. The
majority say:

The poll book shows 171 persons as having voted. The opening of the
ballot box disclosed 167 ballots. Not a single one of these ballots was
numbered, as required by law, and it is therefore impossible to tell
what ballot was voted by any particular person whose name appears upon
the poll book or whether any of them were voted by the persons whose
addresses thus appear. Eighty-nine ballots bearing Butler's name were
found in the ballot box. The returns gave him 98. Fifty-nine bore
Wagoner's name. The returns give him 61. By reason of the absence of
numbers upon these ballots it is impossible to tell whether all or any
of these ballots cast by persons who, according to the poll book, did
appear and vote, were found in the box or whether the persons who cast
the ballots which were found in the box were registered voters, or
whether, as in most of the other precincts, there were duplications of
ballots by the same voters. The provision of the Missouri statute upon
this subject is as follows:
``Sec. 7247. Procedure when ballot is offered by voter in cases of
challenge.--One of the said judges of election shall receive the ballot
from the voter, and shall announce his residence and name in a loud
voice, and shall write on the back of said ballot the number of the
same, in the order in which it was received, which number shall also be
placed opposite the name of the voter in the poll book in the column
headed `number,' and another judge shall put the vote in the ballot box
in the presence of the voter and the judges and clerks, and in plain
view of the public. The judge or clerk having charge of the registry
shall then, in a column prepared thereon, in the same line of the name
of the voter, mark `voted,' or the letter `V.'
``If such person so registered shall be challenged or disqualified,
the party challenging shall assign his reason therefor, and thereupon
one of said judges shall administer to him an oath to answer ques-
Sec. 1128
tions, and he shall be questioned by said judge or judges touching such
cause of challenge and touching any other cause of his
disqualification, and may also be questioned by the person challenging
him in regard to his qualifications and identity, but if a majority of
the judges are of the opinion that he is the person so registered and a
qualified voter his vote shall then be received accordingly. The vote
of no one shall be received by said judges whose name does not appear
upon the books of registration as a qualified voter.''
Whether the provision as to numbering the ballot should be considered
as mandatory or as merely directory it is not important to consider.
Ordinarily an honest voter ought not to be deprived of his vote by any
dereliction on the part of the election officers, but where the action
or inaction of election officers renders it impossible to ascertain the
honest vote in a precinct the whole return must be rejected. It seems
incredible that 171 or 167 persons could have voted without noticing
that their ballots were not numbered.

The minority say in opposition:

We have had no positive evidence pointed out to us by counsel for the
contestant of any irregularity in this precinct outside of what is
shown in the Owen registered letter and directory tabulation. On the
contrary, we find the positive testimony of Judge of Election Steve
Pensa that the election in that precinct was conducted honestly,
fairly, and in an orderly manner.

As to Ward 15, precinct 6, the majority say:

The poll book shows 140 persons to have voted. The opening of the
ballot box disclosed 139 ballots. Ninety-three of these (including 4
duplications) bore Butler's name. The returns give him 95. Fifteen
ballots bore the initials of but one judge, whereas the law requires
two. Thirty-two ballots cast for Butler, 16 for Wagoner, and 2 for Artz
were not numbered as required by law. Four ballots were duplicated and
counted for Butler. Notwithstanding the fact that the number of ballots
found in the box is only one less than the number of persons whom the
poll book shows to have voted, 52 names appearing upon the poll book as
having voted were not found represented by ballots in the box when
opened, their numbers being missing. It is impossible to ascertain
whether the unnumbered ballots were cast by persons whose names
appeared upon the poll book.

The minority say:

No citation of positive evidence of irregularity was furnished the
committee by contestant's counsel, and we find positive evidence of
Election Officials William S. Wellman and Otto Bell as to the absolute
fairness and regular conduct of the election in that precinct.

The minority also say generally:

It is true that there is shown in the evidence instances where fewer
ballots were found in the box than the poll books show to have been
cast, and this is taken by the majority to be an evidence of fraud, and
great stress is laid upon that particular fact in their report. They
totally exclude from their guessing the possibility that defective
ballots are not placed in the box, but are directed under the law to be
segregated and placed in envelopes and kept separate and apart from the
remaining ballots when returned.
These envelopes are what axe known as rejected-ballot envelopes. The
evidence shows that no demand was made by contestant or his counsel for
these rejected-ballot envelopes, by which the discrepancy between the
number of ballots found in the box and the number of votes shown by the
poll book to have been cast would have been accounted for.

Ward 4, precinct 2, affords another example, thus set forth by the
majority report:

The poll book (p. 440) shows 488 persons to have appeared and
voted.The opening of the ballot box (p. 780) disclosed 486 ballots
therein. Of this number, 472 (including 45 duplications) bore Butler's
name. The returns give him 471. Wagoner had 14 ballots in the box. The
returns give him 17. Three hundred and thirty-two persons voted in this
precinct whose names were not on the printed registration list. Forty-
five persons voted twice upon the same names and numbers. There were
missing from the ballot box the ballots of 48 persons who, according to
the poll book, appeared and voted.
Sec. 1129
The fact that 31 persons, mostly Irish, registered from one building,
1038 Third street, in this precinct and arrived at the place of
registration in reverse alphabetical order is not more remarkable than
that 39 others, mostly Italians, registering from 615 Franklin avenue,
by a singular coincidence, arrived in precisely the same order.
Assuming that each one of these persons did appear personally for
registration, as the law requires, these coincidences would be
remarkable, but upon the not very violent assumption that if there were
such persons actually in existence, which may be fairly doubted, their
names were handed by designing persons to registration officers anxious
to assist in false registration for the purposes of the election. The
case is not unusual. It is perhaps not singular that every vote cast
from the two houses above named were cast for Butler.

After an examination of the 41 precincts, and in accordance with
their conclusions, the majority recommend the following:

Resolved, That James J. Butler was not elected a Representative in
the Fifty-seventh Congress from the Twelfth Congressional district of
Missouri, and is not entitled to a seat therein.
Resolved, That George C. R. Wagoner was elected a Representative in
the Fifty-seventh Congress from the Twelfth Congressional district of
Missouri, and is entitled to a seat therein.

2The minority views, while conceding that some frauds might have
existed, dissented from the conclusion that they were sufficient to
invalidate sitting Member's title to the seat.
The report was debated on February 26,\1\ and on that day the
question was taken on substituting resolutions confirming the title of
sitting Member for the resolutions proposed by the majority; and the
motion to substitute was lost, yeas 112, nays, 153.
A motion to recommit was disagreed to, and then the question recurred
on the first resolution proposed by the majority report. This
resolution was agreed to.
The second resolution was also agreed to, ayes 161, noes 2, the
minority not generally voting in pursuance of dilatory tactics, and the
Speaker pro tempore overruling the point of no quorum present as
dilatory.
Mr. Wagoner thereupon appeared and took the oath.
1129. The Massachusetts election case of Conry v. Keliher in the
Fifty-eighth Congress.
The House declined to consider false publications, neither party
being shown to be concerned therein, and no deception of voters being
shown, as a reason for changing an election return.
On January 18, 1904,\2\ Mr. Joseph H. Gaines, of West Virginia, from
the Committee on Elections No. 1, submitted the unanimous report \3\ of
the committee in the Massachusetts election case of Conry v. Keliher.
The committee found the following facts:

It appears that the Ninth Congressional district of Massachusetts,
which is located in Boston, is a district of overwhelming Democratic
strength. The Democratic Congressional convention in that district in
1902 was unable to agree upon a nominee within the time fixed by the
law of Massachusetts for convention nominations. The contestant, Conry,
and the contestee, Keliher, were each candidates before the Democratic
convention, and after the final adjournment of the convention each
became a candidate by petition.
Each of these candidates, a few days before the election, endeavored
to get the support of Hon. James M. Griggs, chairman of the Democratic
Congressional committee. Each of them communicated
-----------------------------------------------------------------------
\1\ Record, pp. 2715-2728.
\2\ Second session Fifty-eighth Congress; Record, p. 844.
\3\ House Report No. 385.
Sec. 1129
with Griggs and each received a telegram from Griggs. Each of these
candidates caused to be published, as an advertisement, in certain
Boston papers, a telegram purporting to have been received by him, or
the chairman of his committee, from Mr. Griggs.
Contestant insists that contestee was guilty of gross fraudulent
representations in the publication of the telegram which contestee
caused to be published, and contestee claims that contestant was guilty
of gross fraudulent misrepresentations in the telegram which contestant
caused to be published.
Contestant denies, and it is not shown, that he was responsible for
the published advertisement of the fraudulent telegram which was
published in his interest, and it is not shown that contestee was
personally cognizant of the fraud in the telegram published in his
interest.
At the election contestee received 10,352 votes and contestant 10,099
votes. Contestant insists that by reason of the false telegram from Mr.
Griggs, published as a paid advertisement in behalf of contestee,
enough voters who would otherwise have voted for contestant were led to
vote for contestee. It is not shown by the evidence that any particular
person so changed his intention or was led by the advertisement to vote
for contestee when he intended otherwise to have voted for contestant.
But contestant urges that it is the duty of the Committee on
Elections, and of the House itself, to assume that the publication of a
false telegram from the chairman of the Democratic Congressional
committee recommending to the voters of the Ninth Congressional
district of Massachusetts that he favors a particular candidate ought
to have great weight.
The telegram published in the interest of contestee purported to be a
denial of a previous telegram published in the interest of contestant,
both telegrams purporting to be from Mr. Griggs. Contestant urges that
the telegram, published in behalf of contestee, which denied the
authenticity of the telegram published in behalf of contestant,
attributed such moral turpitude to contestant that many people who read
contestee's later telegram, and believed it to be true, were thereby
persuaded to vote against contestant, because they believed him to have
published a falsehood in his own favor.
Contestant urges that it is the duty of the Committee on Elections
and the House itself to assume that voters must have been so influenced
and must have so changed their votes from contestant to contestee.

The conclusions of the committee were as follows:

It appears to this committee that the claim that the Committee on
Elections should assume a certain number of voters in the Congressional
district were influenced, because they ought to have been influenced,
by improper charges, to vote for one candidate when otherwise they
would have voted for the other candidate, is a claim which belongs in
the realm of hypothetical presumptions. To agree to the claims set up
by contestant would require a method of ratiocination on our part too
fantastic for our minds.
We do not condone the offense of publishing false telegrams or
telegrams in a different manner from the one in which they are sent. It
may be true that the resident voters in Boston were waiting with bated
breath to learn what Hon. James M. Griggs thought before they cast
their ballots. Mr. Griggs himself, however, thinks otherwise. His
conduct in the matter was very careful and very gentlemanly, as would
be expected coming from him.
We are inclined to agree with him that the influence upon the Boston
voters of the telegrams sent by him, and those published and purporting
to have been sent by him, has been very much exaggerated by the counsel
in this case.
Some allegations of fraudulent voting and of fraudulent colonization
of voters have been made by contestant, but not enough votes are
involved in these charges to make any change in the result of the
election.
The Committee on Elections No. 1 therefore beg leave to report to the
House, and respectfully recommend the adoption of the following
resolutions:
``Resolved, That Joseph A. Conry was not elected a member of the
Fifty-eighth Congress from the Ninth Congressional district of
Massachusetts, and is not entitled to a seat therein.
``Resolved, That John A. Keliher was elected a member of the Fifty-
eighth Congress from the Ninth Congressional district of Massachusetts,
and is entitled to retain his seat therein.''

The resolutions were at once agreed to, without debate or division.
Sec. 1130
1130. The Pennsylvania election case of Connell v. Howell, in the
Fifty-eighth Congress.
It being shown that election officers had flagrantly ignored and
violated mandatory law, the House declined to purge and rejected the
poll.
As to the extent to which hearsay testimony is admissible to prove
that a person recorded as voting was not within the precinct on
election day.
As to the force of admissions by counsel during argument of an
election case.
Admissions in the brief of a party to a contest are of force if not
contrary to proven facts.
Election officers being required to file certain affidavits with a
prothonotary, his certificate that this was not done was accepted as
proof that the affidavits were not taken.
On February 9, 1904,\1\ the House began consideration of the election
case of Connell v. Howell, from Pennsylvania. The sitting Member had
received the certificate by a returned plurality of 461 votes. In the
course of the contest over 6,000 witnesses were examined, the great
majority in behalf of contestant, and the evidence filled 3,824 large
pages.
Four essential points were involved in the examination:
(1) The rejection of the returns of certain polls:
(a) The poll of the borough of Winton, Second Ward. After quoting the
law of Pennsylvania the majority,\2\ in their report, say:

Notwithstanding the plain, unequivocal statement in the statute which
provides that ``No man shall be permitted to vote at the election on
that day whose name is not on said registry list, unless he shall make
proof of his right to vote,'' as herein before required; and
notwithstanding the oaths of said election officers above set forth,
they permitted in this ward a large number of men to vote whose names
were not on the registry list, without affidavits in proof of their
right to vote as required by law. Contestant's counsel claimed in the
argument that there were 83 such voters, and their names are set forth
in his brief. Contestee's counsel, in his presence, admitted 50. The
returns show that 220 votes were cast in this ward, and of these 50 are
admitted to have been received by the election officers contrary to the
positive directions of the law and in violation of their solemn
obligations. The evidence does not disclose that any affidavits were
required at that voting precinct from unregistered voters. And
contestee's counsel practically admitted it, for at page 18 of their
brief, in referring to the Second and Third wards of Winton, they say:
``The contestee affirms that a careful examination of the evidence
fails to disclose any fraud, irregularity, intimidation, improper or
corrupt practices of any of the election officers in either of these
election districts. An examination of the list of voters who voted at
this election, and a comparison with the registry list, shows that no
persons voted who were not registered; therefore no affidavits were
taken by the election officers.''
This fact alone is sufficient to cast grave suspicion on the honesty
and good faith of those election officers. But other facts are
disclosed by the evidence. In the neighborhood of 50 votes were
received in the names of men who were not present and did not vote.
Votes were received in the names of dead men. Several duplications were
received. A large number of names were added to the registry list of
this ward by the election officers, in violation of the law and their
duty. The illegal votes received amounted to much more than a majority
of the votes cast and counted.
-----------------------------------------------------------------------
\1\ Second session Fifty-eighth Congress, Record, pp. 1791, 1845-
1867.
\2\ Report No. 639, submitted by the chairman of the committee, Mr.
Michael E. Driscoll, of New York.
Sec. 1130
The minority views, by an evident clerical error, fail in certain
respects to join issue, taking up considerable space in discussion of
documentary evidence relating to another borough, that of Old Forge. On
the points where issue is joined they say:

The majority of the committee insist that the reception of so large a
number of illegal votes from nonregistered persons, who filed no
affidavits, can be accounted for on no other ground than that of gross
and palpable fraud, connived at, encouraged, and participated in by the
managers of election.
Not one single manager or clerk of that precinct was called to the
stand in the case and no witness has testified to any single act or
utterance of said election managers, so that the sole ground for
rejecting the precinct is the inference that such a large number of
illegal votes could not have been cast without fraud. Let us see if
there is any testimony in the record that shows that any man voted who
was not entitled to vote. Contestant's counsel argued that there were
names on the poll list that were not on the registration list, and that
no affidavits were required of the nonregistered voters. There is
absolutely no proof in the record that the managers of election did not
take affidavits as the law required from all nonregistered persons who
applied to vote.
The second finding, that about 50 votes were received in the names of
men who were not present and did not vote, is based upon evidence
printed in the record. We think the evidence established that Wallace
Barber, D. W. Dawson, Michael Corcoran, Richard Sanderson, Thomas
Wright, and John Mackey were not present and did not vote and somebody
impersonated them and voted in their names. The two last-named men were
dead. The other four were called to the stand and testified that they
did not vote at said precinct on November 4, 1902. Their evidence is
competent and unimpeached. As to all the other alleged impersonations,
we are not inclined to argue them. Begging pardon for encumbering this
report with such matter, we here quote every word of the testimony in
the record tending to establish the impersonations. Aside from the fact
that it is given by men who were employed by the contestant to hunt up
evidence, almost every sentence is hearsay and is utterly incompetent.

The minority then quote, in support of this attack on the evidence,
the testimony of two witnesses, Gaughan and Kearney, each of whom had
an acquaintance with the people of the ward and had canvassed it to
ascertain whether or not the persons recorded as voting had actually
voted. The witness would testify in some cases that he had seen the
voter personally and the latter had told him that he did not vote, and
that he (witness) knew personally that no other person of that name
lived in the ward. In other cases witness would testify that the wife
or parents or an associate of the voter said that voter was at some
other place on the day of election, and then witness would testify that
he knew personally that no other person of that name lived in the ward.
After quoting the testimony, the minority say:

We now come to the finding that the election officers added a large
number of names to the registry list in violation of the law and of
their duty. If any witness testified touching such a matter, we have
been unable to find it after a most careful and painstaking
examination. We confidently assert that there is no evidence on that
point, and that there is nothing to discuss.
The fourth and last finding of the majority is that there were
duplications. The only evidence we can find to sustain this is that the
name John Kennedy appears twice on the poll list as voter 176 and 211,
and Thomas O'Connor appears as voter 8 and 75. It is fairer to assume
that there are two John Kennedys and two Thomas O'Connors than it is to
impute fraud to the election officers.

In the debate, on February 9,\1\ a question arose as to the
admissions made by sitting Member's counsel. Mr. Joseph T. Johnston, of
South Carolina, conceded that Mr. Balentine, counsel for sitting
Member, admitted that there were 50 illegal votes; but denied that
sitting Member was present, claiming without contradiction
-----------------------------------------------------------------------
\1\ Record, pp. 1791, 1850.
Sec. 1130
from the majority that Mr. Howell was absent in Pennsylvania at the
time. Mr. Johnston denied that such admission was effective, saying:

I admit that a lawyer can bind his client by an admission in a
pleading. I admit that a lawyer can bind his client by an admission in
writing entered upon the minutes of the court. That is all right; but
to tell me that when a lawyer is arguing a case before a judge, if he
misstates the facts and the record shows that he misstates the facts,
the judge is bound to decide the case by what the lawyer said and not
by what the record shows, is a new sort of justice to me. That is the
way it happened. In the argument of the case this lawyer did say that
there were 50 illegal votes at that precinct, but that does not bind
anybody. The record says otherwise. We are trying the case on the
record.

Speaking on the next day for the majority of the committee, Mr. James
Kennedy, of Ohio, said:

When the argument opened we stood in the presence of this record a.
little appalled at the amount of work that the committee thought was
before it, and when Mr. Balentine, representing the contestee, arose to
talk, I inquired of him whether or not certain admissions could not be
agreed upon by counsel, so as to shorten the labor of the committee,
calling his attention directly to the claim of the contestant to the
great number of votes in these three wards cast by men whose names were
not on the registration list. That was at the beginning of the hearing,
and he said that the figures presented by the attorney for the
contestant were inaccurate in this regard.
I forget what the exact figures were with reference to the Second
Ward of Winton, but it was something like 83 votes that the contestant
claimed had been cast in this way, the names of those who cast them not
appearing upon the registry list. Mr. Balentine said that there were 50
in that ward, that the balance of the 83 names on that list were not
names that did not appear on the registry list, but that they were
substitutions.

The minority views lay stress on the fact that Mr. Green, associate
counsel for sitting Member, declined to concur in the admissions.
As to the admission in sitting Member's brief, quoted by the majority
report, Mr. Johnston said:

The majority of the committee quote that as an admission of counsel
that no affidavits were taken. Why, gentlemen, if you are going to
quote that for anything, quote it for all it is worth. He makes two
affirmative declarations. One is that no affidavits were taken and the
other is that nobody voted who was not on the registry list. If you are
going to take his statement about one, take it about the other.

In reply on this point, Mr. Henry W. Palmer, of Pennsylvania, stated
that a comparison of the list showed the declaration that no one not on
the registry list voted not to be true.
(b) As to Winton, Third Ward, the majority report states:

Contestant's counsel claimed that in this ward 80 votes were received
from persons whose were not on the registry list, and from whom no
affidavits were required in proof of their right to vote, as required
by law. Contestee's counsel, in his presence, admitted 53.
James Conry, judge of election in that district, swore that no
affidavits were taken from men who voted and whose names were not on
the registry list.
The evidence further discloses that in this precinct about 22 votes
were cast and received in the names of other persons, and it is
difficult to understand how so many violations of the election law
could be due to honest mistakes on the part of the election officers.
It was also claimed, with some evidence to sustain the contention, that
about 15 men voted at this precinct none of whose names appeared on the
voting, list as returned by the election officers. That one H. V.
Lawler, a tax collector and adherent of the contestee arranged with one
Benni Betti to bring in his friends to vote and when he was informed
that they were not citizens he did not hesitate but said'' take them
anyway.'' When those men reached the polls they were taken in charge by
one John Lally, one of the inspectors of election and a friend of the
contestee, their ballots were marked, and they were voted.
Sec. 1130
The majority further cite facts indicating that the election
machinery was entirely in the hands of sitting Member's friends.
The minority, in their views, say:

The judge of elections at this precinct was sworn, and testified that
no persons voted who were not registered, and for that reason no
affidavits were taken. In so far as it is alleged that some men voted
in the names of men who were not present, and that some voted whose
names were not entered on the poll list, we think the fairest thing we
can do is to quote the evidence relied upon by the contestant. The
witnesses are F. A. Snyder, Benni Betti, and Domineck Cherntom, and
they utterly failed, in our judgment, to sustain their allegations.

The minority here cite testimony similar in general character to that
cited in discussion of the Second Ward of Winton, and which was
criticized as hearsay.
Speaking of this evidence on February 10 \1\ Mr. Henry W. Palmer, of
Pennsylvania, said:

The committee finds that there were 50 men who were returned as
having voted in that precinct who were not there at all. I suppose the
best evidence in proof of this fact would have been to summon the men
themselves if they could be found on the face of the earth, to bring
them before a commissioner and take their testimony that they were not
present and did not vote. That was not the course pursued. A man was
sent out who was not a stranger--a man who was a tax collector and
assessor in that little borough of Winton, who knew every man, woman,
dog, and cat in the place. They sent him out with a list in his hand of
50 men who were returned as having voted there, but who did not in fact
vote, as it was alleged. He was sent out to ascertain facts, and he
came back and reported that A had moved away, that B was in some other
country, that C had died, etc. Nobody contradicted his testimony or
doubted his veracity. It may not have been the highest or best form of
evidence; but in the absence of any contradictory proof which Mr.
Howell could have made, if any such existed, it was enough to satisfy a
reasonable man of the fact.

Mr. B. P. Birdsall, of Iowa, speaking particularly of the committee's
investigation of this ward, showed, by quoting the testimony of a
considerable number of persons who voted, that in regard to the voting
of unnaturalized persons not on the list, the testimony was not hearsay
but direct and positive as to the fact of illegal voting. After showing
that the law of Pennsylvania requiring affidavits from persons not on
the lists was declared by the courts to be mandatory (Cusick's case, 13
Pa., 459), he said: \2\

The testimony hereinbefore quoted shows that illegal voters, without
any declaration whatever to the judges, were accompanied by adherents
of contestee into the voting booths, and in truth did the voting for
the foreigner, who was indifferent as for whom he voted.
In the face of the positive injunctions of the law as to the care in
the exercise of their duty, how, in the light of this testimony, can we
conclude that an honest election was held? How could the election
officers on this record defend themselves from the charge of
negligently performing their duties? And if they can not, it is folly
to urge that conduct which subjects them to the penalty of the law does
not amount to such fraud as will vitiate their returns.

Contestant's counsel claimed in the argument that there were 158
votes cast in this district by persons whose names did not appear on
the registry list and from whom no affidavits were taken in proof of
their right to vote, as required by law. Those names are set forth in
their brief. Contestee's counsel, in his presence, admitted 90.
-----------------------------------------------------------------------
\1\ Record, p. 1860.
\2\ Record, p. 1801.
Sec. 1130
There was some dispute in the arguments on the question whether any
affidavits were taken from unregistered voters in proof of their right
to vote. But the certificate of the prothonotary of Lackawanna County
seems to settle it. The following is a copy of the certificate:

``Commonwealth of Pennsylvania, County of Lackawanna, ss:
``I, John F. Cummings, prothonotary of said county of Lackawanna in
said Commonwealth, do hereby certify that among the returns of the
election held in the said county of Lackawanna on the 4th day of
November, A. D. 1902, which returns are now on file in my office
pursuant to law, it appears that one affidavit only was filed from the
first district of Old Forge borough in said county, which affidavit is
the oath of office taken by the election officers, and that no
affidavit of any voter was filed from said district.
``In witness whereof I have hereunto set my hand, and have affixed
the seal of court of common pleas of the said county of Lackawanna, at
the city of Scranton in the said county, this 12th day of January, A.
D. 1904.
``John F. Cummings,
``Prothonotary of Lackawanna County.''
According to the evidence about 11 persons voted at that election in
that district whose names did not appear on the voting list as returned
by the election officers. There were duplications and substitutions in
that district, and about 8 persons were permitted to vote, opposite
whose names the letters ``D. I.'' appeared on the registry list,
without filing affidavits in conformity with the law in proof of their
right to vote.
On the morning of election, one Michael Cafferty was sent for and
appointed an inspector of election. He was not registered, but he voted
without making an affidavit in proof of his right to vote. Although
there was no disturbance, peace officers were present, apparently
assisting the election officers who were friends of the contestee;
threats were used; a Republican watcher was forcibly ejected; the right
of challenge was denied; voters were denied the right to make their own
selection of persons to assist them in marking their ballots, and
ballots were marked contrary to the instructions of voters; and the
election generally in this district was conducted in a high-handed
manner and without regard to the provisions of law and the sworn
obligations of the election officers. And the active participants in
those lawless practices were the political friends and adherents of the
contestee.

(d) Speaking generally of the propriety of rejecting the three above-
mentioned polls, the minority say:

From the foregoing facts, and others which may be recited from the
evidence, pertaining to the conduct of the elections in the Second and
Third wards of the borough of Winton and the first district of the
borough of Old Forge, your committee is of the opinion that the
election officers in those three districts, and other friends of the
contestee acting with them for a common purpose, were guilty of
carelessness, lawlessness, and fraud to such an extent as to impeach
the returns from those districts.
Fraud can never be presumed, and must in all cases be proved. But it
may be established by circumstantial as well as by direct evidence. In
those three districts the character and ignorance of a large proportion
of the voters, the political conditions, the party feeling, the
admitted violations of the election law and reckless disregard of their
oaths on the part of the election officers, the opportunities for
substitutions, personations, and other illegal voting, the advantage
taken of those opportunities, as shown by the evidence, all point to
such fraud on the part of the election officers and others, by their
consent and connivance, as to vitiate the returns from those districts.
It is a serious matter to disfranchise the honest and legal voters in
three districts, or even in one; but it is a more serious matter to
trifle with the law which was enacted and intended to be so enforced as
to protect the legal and honest voters against fraud and imposition. If
the honest, legal voters in any district would insure an honest vote
and a fair count, they must see to it that only honest and competent
election officers are on guard. The maintenance of the law in its
purity and vigor is of more importance than the vote of one or three
districts, and your committee is of the opinion that should it excuse
the election officers in those three districts for their acts as
disclosed by the evidence, such a decision would be accepted by them
and others as a justification of their reckless and lawless practices
in disregard of their sworn official duties.
Sec. 1130
Your committee therefore finds that the election in those three
districts was so tainted and permeated with fraud as to make them void,
and that the returns from them should be thrown out and deducted from
the official returns of the respective candidates.
Legal voters in those three districts who supported the contestee
were not necessarily disfranchised by this action. Their votes could
have been proven aliunde during the contest. That was not attempted.

The minority cite McCrary at length in support of this view. In the
debate on February 9, Mr. Michael E. Driscoll, of New York, cited the
cases of Knox v. Blair, Finley v. Walls, Van Wyck v. Green, Wise v.
Young, Murray v. Elliott, Robinson v. Harrison, and Noyes v. Rockwell.
Speaking on February 9,\1\ Mr. Birdsall said on behalf of the
majority, after showing the mandatory nature of the laws of
Pennsylvania controlling the acts of the election officers:

The evidence, to my mind, establishes such gross negligence and a
willful violation of the law as to render their acts and returns
unworthy of belief in any tribunal worthy to investigate them. It is
difficult, indeed, to find a single provision of the law that was not
violated in some one of the districts in question. A few of these
violations may be noted, as clearly shown by the evidence already
alluded to and elsewhere found in the record, namely:
The reception of known illegal votes;
The appointment of a disqualified inspector;
The denial of the right of assistance;
The permission to accompany voters to the booths and mark their
ballots when no assistance was demanded;
The acceptance of votes from nonregistered persons who made no
affidavits;
The reception of votes on defective affidavits;
The presence of peace officers in the voting places;
The rejection of Republican watchers;
The failure to seal the ballot boxes as required by law;
The failure to deposit them as required by law; and
The electioneering of one of the inspectors.
If such gross violations of the law as are shown in this case are
permitted to stand and meet with our approval, then we may as well
desist in all efforts to enact laws for the protection of the ballot.
No man can with honesty be the beneficiary of such frauds. Let us set a
higher standard for the conduct of election officers and keep as pure
as possible the fountain of authority in this Government. * * *

In the debate Mr. Johnston, speaking for the minority, urged that the
polls should have been purged: \2\

I want, before I take up this case in detail, to say that it is a
dangerous doctrine, it is a damnable doctrine to throw out entire
precincts in an election. You may find that where partisan zeal has
controlled it has been done, but I challenge you to show where courts
of law have thrown out entire precincts. The law which is laid down in
the books, the law which must commend itself to our sense of justice,
is that if it is possible to purge a ballot box of illegal votes it
shall be done. I do not stand for fraud; I detest it whether it is in
politics or in the private walks of life. In this case there is
absolutely no reason for saying that fraud was shown to such an extent
as to justify throwing out entire precincts. Every illegal ballot can
be ascertained. The contestant has set forth with great particularity
the name of every voter that he claims cast an illegal ballot. He has
referred to the testimony upon which he bases that contention.
There is nothing in the way of this committee--there is nothing in
the way of this House taking up those names one by one and determining
the facts judicially whether the alleged vote was illegal, and if it
was illegal, and the testimony shows for whom it was cast, deduct it
from the candidate who
-----------------------------------------------------------------------
\1\ Record, p. 1802.
\2\ Record, stpp. 1789, 1790.
Sec. 1131
received it. If the testimony fails to show for whom it was cast, then
adopt the sound rule of law that says that illegal votes, in the
absence of testimony showing how they were cast, shall be deducted from
the candidates in proportion to their legal votes. I want in my remarks
to incorporate certain citations from authorities in regard to the law
upon this point.

Mr. Johnson cited the cases of Le Moyne v. Faxwell, Taylor v.
Reading, Burch v. Van Horn, Atkinson v. Pendleton, Bromberg v.
Haralson, Cessna v. Myers, Butler v. Lehman, Chaves v. Cheever, Abbott
v. Frost, Koontz v. Coffroth, English v. Hilborn, Wallace v. McKinley,
Hurd v. Romeis, Todd v. Jayne, and Barnes v. Adam in support of his
contention.
1131. The case of Connell v. Howell, continued.
The mutilation of ballots in the return of election officers did not
cause rejection of the returns in absence of proof of fraud on part of
the officers or the party apparently benefited.
Over 2,000 illegal votes having been proven, the committee by proof
aliunde determined for whom a portion were cast and rejected them
without disturbing the remainder.
A voter's testimony under oath that he was disqualified and voted for
a certain candidate was accepted as justification for rejecting the
vote.
Where the ballot was secret, testimony of an acquaintance as to
voter's declaration before election was accepted as proof aliunde.
(2) As to their refusal to reject the poll of Dunmore precincts the
majority say:

Contestant's counsel in their briefs and arguments vigorously
attacked the returns from the first and second districts of the First
Ward, the second district of the Second Ward, the third district of the
Third Ward, and the first district of the Sixth Ward, all of the
borough of Dunmore, for fraud, and for the reason that after the
contest was commenced the ballots returned from those districts were
destroyed, or so mutilated by being wet as to make them undecipherable.
It was claimed that this was done in the interest of the contestee, for
the purpose of covering and concealing fraud perpetrated by the
election officers. The destruction of those ballots, under the
circumstances revealed in the evidence, is not; free from suspicion.
But your committee does not find sufficient evidence to establish fraud
on the part of the election officers nor to charge the contestee with
the responsibility of destroying the ballots, and therefore this claim
is dismissed.

(3) As to illegal votes in the district at large and proof aliunde as
to how they were east, the majority show that 489 votes were cast by
persons who gave defective affidavits where the law required accuracy,
and continue:

It was also urged on the part of the contestant, in the notice of
contest and in the briefs and arguments of his counsel, that, aside
from the 489 votes above referred to and aside from the Second and
Third wards of Winton and the first district of Old Forge, 1,795 votes
were cast in said Congressional district for Representative in
Congress, received by the election officers, counted by them, returned
to the canvassing board, and canvassed by men who were illegal voters
under the statutes of the State of Pennsylvania, as construed by the
courts of that State. The contestee's counsel admitted this claim,
except as to the number of about 211, and it was practically conceded
that 1,584 of those votes were illegal. Therefore, according to the
evidence and the concessions of counsel on the argument, about 2,002
votes were cast in said district by illegal voters, aside from the
Second and Third wards of Winton and the first district of the borough
of Old Forge.
Contestant attempted to prove aliunde that those votes were cast for
contestee. Proving how men voted is generally a difficult matter and
always is so when the political supporters of the opposing candidate
are on the witness stand. The law provides for a secret ballot. No man
is required to state
Sec. 1131
how he voted. On the part of the contestant evidence was introduced
tending to show that practically all those illegal votes were cast for
contestee. However, the evidence in many of those cases was not
entirely satisfactory to a majority of your committee, but after a
careful examination of the evidence it finds that at least 200 of those
votes were proven by competent and sufficient evidence to have been
cast for the contestee and should be deducted from his count, and that
one of those votes was proven by competent and sufficient evidence to
have been cast for contestant and should be deducted from his count.

The minority say:

Testimony was taken tending to show that more than 2,000 illegal
votes were cast in districts other than the three which the majority of
the committee have thrown out entirely. The majority of the committee
have declined to take up these alleged illegal votes and purge the
ballot boxes. They have gone just far enough to find a plurality for
the contestant and ignored all other illegal votes. The pleadings
brought up the question of the legality of votes in every precinct.
Testimony was taken for the purpose of substantiating these
allegations. By what rules of law or justice the committee can consider
only a part of the record and a part of the illegal votes we are unable
to discover. At a trial of causes at law it may and frequently does
happen that the determination of one point renders the consideration of
all others unnecessary.
For instance, if one brings suit for personal injuries against a
railway company, where the doctrine of contributory negligence obtains,
after the jury finds that the plaintiff sustained his injuries through
his own negligence, it is unnecessary for the jury to go further and
consider the expenses he incurred on account of his injuries, his
sufferings, etc. This is not a case of that nature. The whole election
is at issue. Suppose, for instance, that the contestee had been elected
to Congress by a plurality of two votes, and the contestant had
demanded and this Congress had granted a recount of the ballots; and
suppose, further, that after counting three boxes the contestant had
gained three votes, would any committee or any Congress stop then and
there and say that they had gone far enough, and that the contestant is
entitled to his seat? It would shock the ordinary lawyer and paralyze
the honest layman. It appears to the minority of the committee that
under the circumstances supposed the entire vote would be counted. It
appears to us that the entire illegal vote should be eliminated
according to the rules and forms of law and the seat awarded to that
man who received the majority of the legal votes.

Speaking on February 9 \1\ on behalf of the majority, Mr. Birdsall
said:

The committee relied on all these points, and I desire to say that
the gentleman who preceded me is entirely mistaken in saying that the
majority of the committee rely on the character of the testimony that
he refers to, and which is set out in the minority report in
determining the fact that an illegal vote was cast. A stronger rule was
adopted by the majority of the committee than met with my approval. I
think there is sufficient evidence in this record to establish the fact
that between 1,500 and 1,600 of these illegal votes were cast for Mr.
Howell.

Mr. Kennedy, on the same point, said \2\ as to the mass of testimony:

Now, when we approached that testimony, it was as if this House had
submitted to this committee the question of whether or not in that
great haystack there were rats to a greater number than eight or nine.
We went out and hunted and hunted, and we found 200 rats. We saw them.
The committee all saw them. There were many more than I discovered;
there were evidences all around us of more rats. It seemed unreasonable
to go through, clear through, that entire stack, straw by straw, when
we had already found so many illegal votes that were cast for Mr.
Howell.

Mr. Kennedy, then proceeded to reply to the assertions of the
minority that the evidence by which illegal votes were shown to have
been cast for sitting Member was inadmissable as heresay. He quoted a
number of witnesses whose testimony showed that they were not qualified
voters, and who declared positively that they voted for sitting Member,
and declared that he found 200 cases as well substanti-
-----------------------------------------------------------------------
\1\ Record, p. 1802.
\2\ Record, p. 1853.
Sec. 1131
ated as those quoted. In conclusion he presented a table giving the
names of the persons illegally voting and the precincts where their
votes were cast.
Concluding the argument on February 10,\1\ Mr. Driscoll said:

Judge Birdsall, who addressed the House yesterday on this question--
who has been on the bench and is a well poised lawyer--said that about
1,400 or 1,500 of those 2,000 illegal ballots were cast for Mr. Howell.
And another gentleman from Ohio [Mr. Kennedy], who has spoken this
morning, has said that 600 or 800 or 1,000 of those votes were cast for
Mr. Howell. I suppose I was one of the conservative members of that
committee. I did not go as high in my estimate as some of the rest; but
I had no doubt that on the evidence at least 200 of those votes were
cast for Mr. Howell.

Questioned as to why the names were not set forth in the majority
report, he said:

That was not necessary when we showed that only 10 illegal votes were
required to overcome the apparent plurality for Mr. Howell after those
three precincts were thrown out. Nobody questioned this in the
committee. It was unnecessary to set out the names with the pages of
the evidence.

(4) As to the proof aliunde by which contestant proved 32 votes cast
for him in the three precincts of which the committee had rejected the
poll, the minority views say:

One witness proves all these aliunde votes, except three. Here is the
evidence, and, in our judgment, it is incompetent, for reasons
appearing on its face.

The minority give a list of the votes, all but five of which were in
the Second Ward of Winton, and then quote the evidence, which generally
as to each voter was as follows, the questions being put by
contestant's counsel, to one Flynn, witness for contestant:

Q. Patrick J. Walsh, do you know him?--A. Yes, sir.
Q. Was he supporting Mr. Connell?--A. Yes, sir.
Q. Do you know Daniel Dyer up there, also?--A. Yes, sir.
Q. Was he supporting Mr. Connell in the last campaign?--A. He was.
Q. Do you know John Kearney?--A. Yes, sir.
Q. Was he supporting Mr. Connell in the last campaign?--A. Yes, sir.
Q. Do you know John E. Walsh?--A. Yes, sir.
Q. Was he supporting Mr. Connell in that campaign?--A. He was.
Q. Do you know John Macker?--A. Well, Macker--I don't know that
gentleman.
By Mr. Balentine (sitting Member's counsel):
Q. Are you attempting to tell whom these men voted for?--A. Yes, sir;
men told me that.
By Mr. Donovan (contestant's counsel):
Q. Do you know Anthony O'Connor?--A. Yes, sir.

Q. And was he supporting Mr. Connell last fall?--A. Yes, sir .
On cross-examination witness testified generally that he did not see
the voters cast their votes, but that they told him before election how
they should vote.
The majority in their report content themselves with declaring the
sufficiency of the proof; but in the debate \2\ on February 9, Mr. John
A. Sterling, of Illinois, one of those concurring in the report, said:

The question arises, What kind of testimony is competent to prove how
a vote was cast? Where the ballot is secret, the ballot does not
disclose the fact. What is the next best evidence? The party who casts
the vote, and in that regard I desire to call attention particularly to
the statement made by the gentleman from Iowa, that in the pages of
this record it appears that when the contestee had asked
-----------------------------------------------------------------------
\1\ Record, p. 1864.
\2\ Record, p. 1805.
Sec. 1131
witnesses as to how they had voted the contestant interposed an
objection and stated and instructed the witness that he need not
answer. We are not complaining of that. The gentleman representing the
contestee is complaining of the character of the evidence, and I desire
to call his attention now to the testimony of the very witness from
which he read, Mr. Flynn, who testified that some of these persons who
voted legally in these precincts had voted for Mr. Connell, and that
same witness was asked by the attorney for the contestant for whom he
voted, what his politics were; and the contestee objected and
instructed that witness that he need not answer.
Both the contestee and contestant seem to have tried this case on the
theory that a voter was not permitted and could not be required to
testify as to how he voted, and the pages of this record are full of
objections made by counsel for contestee when contestant sought to
prove by a witness as to how he voted. I say the record is full of
objections and instructions from their mouths to the witnesses.
So he is estopped now from complaining that the evidence in this case
as to how these men voted did not come from the mouths of the voters
themselves. He told these witnesses that they need not disclose that
fact, and witness after witness took advantage of the instruction and
this information as to what their rights were under the law, and
refused to tell under the instructions of counsel for the contestee as
to how he voted. * * *
It is convenient here now to call attention to the position taken by
the counsel for the contestee on that very question by this very
witness. I am quoting from the testimony of Flynn. The counsel for the
contestant asked what was his politics--that is, the witness's
politics. He asked, ``Do you know James Flynn?'' That is the witness
himself. He said, ``Yes.'' He was asked, ``What is your politics?'' The
witness answers, ``Mine?'' And the question is, ``Yes; yours.'' Mr.
Ballentine, attorney for the contestee, says, ``You don't have to
answer that question if you don't want to.'' I am reading on page 26 of
the Views of the minority, a little above the middle of the page. That
is the witness that the gentleman from Iowa read from on that same
page.
The gentleman from Iowa [Mr. Martin J. Wade, who sustained the
minority contention] also said this is the character of his testimony,
and he read as follows: ``Patrick J. Walsh; do you know him?'' ``Yes.''
``Was he supporting Connell?'' ``Yes.'' Now, that is not all the
evidence of James Flynn. The evidence farther down on the same page, on
cross-examination of Flynn, is, ``Are you attempting to tell whom these
men voted for?'' And the witness says, ``Yes; the men told me so.''
Now, the question is whether or not the declaration made by the
voters themselves is competent to prove how they voted. If the ballot
does not disclose the facts, if the witness himself is not allowed to
testify, where are you going for proof as to how this or that man voted
in any election? Is it impossible to purge the ballot for the reason
that these two classes of evidence are barred under the law? The next
best evidence, and the only evidence that is left for any party in a
case of this kind, is to prove what? Why, to prove what the voter
said--prove his declarations, prove what political party he belongs to.

In accordance with their conclusions, the majority rejected the three
polls above mentioned, thus deducting 172 votes from contestant and 625
from sitting Member; credited contestant with 32 legal votes proven
aliunde; and deducted from sitting Member 200 illegal votes proven
aliunde to have been cast for him. One illegal vote was deducted from
contestant.
The result of these corrections left a plurality of 223 for
contestant; and the majority reported the usual resolutions:

Resolved, That Hon. George Howell was not elected a Representative in
the Fifty-eighth Congress from the Tenth district of the State of
Pennsylvania.
Resolved, That Ron. William Connell was duly elected a Representative
in the Fifty-eighth Congress from the Tenth district of the State of
Pennsylvania, and is entitled to a seat therein.

The minority proposed substitute resolutions declaring Mr. Connell
not elected, and Mr. Howell elected and entitled to the seat.
The report was debated at length on February 9 and 10, and on the
latter day the substitute was disagreed to, yeas 150, nays 161. Then
the first resolution
Sec. 1132
of the majority was agreed to, yeas 160, nays 148. The second
resolution was agreed to, yeas 159, nays 147.
Mr. Connell then appeared and took the oath.
1132. The Tennessee election case of Davis v. Sims, in the Fifty-
eighth Congress.
The House will not, on pretense that a class of voters are
unconstitutionally prevented from voting, count the votes of persons
not shown individually to have attempted or desired or been qualified
to vote.
Votes may not be proven aliunde on mere estimates of witnesses.
The Elections Committee declined to consider the failure of election
officers to hold the elections in certain precincts when it was not
shown that either party was deprived thereby of votes to which he was
entitled.
No fraud being shown, a slight irregularity in canvassing returns was
not considered by the Elections Committee.
On March 4, 1904,\2\ Mr. Marlin E. Olmsted, of Pennsylvania, from the
Committee on Elections No. 2, submitted the report of the Committee in
the Tennessee election case of Davis v. Sims. The sitting Member had
been returned by a majority of 976, which the committee found reduced
to 970 by corrections which it made in the returns. But one question
was involved in the decision made by the committee. Contestant
claimed--

that a large number of votes, not cast nor offered to be cast, should
be counted as if actually cast for him, because, as he alleges, the
persons who would otherwise have cast them were prevented from voting
by the operation of the ``Dortch law,'' which he holds to be
unconstitutional.

For the sake of the argument the committee admit that the law is
unconstitutional, and thus conclude:

What would be the effect of holding the Dortch law unconstitutional?
The election was held under it in only 13 civil districts out of a
total of 168 in the Congressional district. If we throw out entirely
the returns from these 13 districts the contestee will still have a
majority. The contestant insists, however, that in the event of holding
the law unconstitutional the vote already counted should stand,
presumably upon the theory that persons who voted under the Dortch law
would also have been entitled to vote under the laws in force at the
time of its enactment and which it, if constitutional, must be held to
have repealed. He also contends that we must add to his total a large
number of unvoted votes which he asserts would have been cast had the
Dortch law not been enacted. He claims that it has been proved that
1,061 persons named in the testimony would have voted for him had they
been entitled to vote under the Dortch law, thus giving him a majority
of 85--and that 1,920 persons, ``estimated,'' but not named in the
proof, should also be treated as having voted for him, thus increasing
his majority to 2,005.
Just 20 persons who were actually called to the stand testified that
they would have voted for contestant had not the Dortch law prevented,
and as to one of them the testimony does not show that he was
registered or had paid a tax so as to be qualified to vote under any
law. As to all the other persons claimed, the evidence is purely
hearsay and very unreliable.
As to 12 of them, contestant's claim that they shall be considered as
having voted for him rests solely upon the testimony of J. H. Falls
(the first witness called to prove names of this class), of which the
part bearing upon this question is as follows:
``5. Q. Can a person who can not read vote under the provisions of
the said Dortch law?--A. No, sir.
``6. Q. What effect does the Dortch law have upon the Republican
voters of the Fourth civil district of Hardin County?--A. It has a big
effect to keep them from voting.
-----------------------------------------------------------------------
\1\ Record, pp. 1783-1810, 1845-1867.
\2\ Second session Fifty-eighth Congress, House Report No. 1382;
Record, pp. 2804-2809.
Sec. 1132
``7. Q. How many do you know, of your own knowledge, in said Fourth
district who are disfranchised under the provisions of this law?--A.
Twelve, that I know of.
``8. Q. Will you please give the names of those whom you know to be
disfranchised?--A. Buck House, old man Ras White.
``9. Q. How long have you lived in this district?--A. I have lived in
this district all my life.
``10. Q. How old are you?--A. 1 am 53 years old.
``11. Q. Have you a list of persons who did not attend the November
election because the same was held under the provisions of the Dortch
law?--A. Yes, sir; I have got a list of them.
``12. Q. Please give the names of the parties contained on your list,
and are they Republican or Democrats?--A. Marion Cole, Wiley Cherry,
Bud Campbell, Henry Doran, Tom Ellison, Ike Kendall, Ike Rhone, B. F.
Rinks, Ulis Lowry, Buck House, John White, and old man Ras White. They
are all Republicans.
``13. Q. Do the above-named parties all live in the Fourth district
of Hardin County?--A. Yes; every one of them.
``Cross-examined:

``1. Q. Where did you get the list of names that you have just
read?--A. I got them all over there at my store.
``2. Q. When did you make up said list?--A. I do not recollect
whether it was before Christmas or since Christmas.
``3. Q. How came you to make up said list? What was it made for?--A.
Abernathy come along there one day and asked me if I knowed how many
around there that had not voted, and I told him there was a good many.
He told me to write them down; that he would be back a certain day and
I could hand them to him.
``4. Q. Did Mr. Abernathy tell you what he wanted with the names?--A.
I believe he did tell me. I do not exactly remember, it was about the
election some way or another.
``5. Q. How do you know that the names you have given are men who can
not vote under the Dortch law?--A. I do not know. I did not ask them
about that.
``6. Q. Then you just mean that they did not vote in the last
November election, and do not know whether they could vote under the
Dortch law or not. Is that correct?--A. I do not know whether all of
them could or not. Them two old men told me they could not vote,
because they could not make their mark straight.
``7. Q. As a matter of fact, most of those that you have named did
vote in the last August election, in 1902, did they not?--A. I do not
know whether they did or not; I did not even ask them that.
``Further this deponent saith not.''
The witness practically contradicted every statement he made save
that the 12 were all Republicans. Not one of the 12 was called to
testify whether he was or was not a Republican, or had registered and
paid taxes, or had or had not voted, or was prevented by the Dortch law
from voting, or whether, if able to vote, he would have voted for
contestant.
The substantial part of the testimony of the next witness, L. K.
Freeman, is as follows:
``5. Q. What kind of a qualification does said law put upon the
voters where the same is in operation, if any?--A. It is necessary for
the voter to be able to read and write; both.
``6. Q. How has this law operated upon the Republican party in the
elections of the Fourth district of Hardin County, and how did it
operate in the election of November 4, 1902?--A. It disfranchises a
great number of the voters.
``7. Q. Give your best estimate of the number of Republicans
disfranchised in the Fourth district of Hardin County, in said November
election, by the provisions of said law.--A. From 75 to 100 voters.
``8. Q. Have you gone over and made a list of the names of the
Republican disfranchised by the Dortch law in said election of November
4, 1902, in said district; and if so, will you give the names of those
whom you know to be unable to vote under the provisions of said law?--
A. Yes; I have made a. list to the best of my knowledge and
recollection. The names are as follows: Sam Broyles, Wes Bailey, Lute
Bailey, Andy Bailey, Josh Bailey, Bill Cherry, Newt Campbell, Marion
Cole, Bud Campbell, Lige Dixon, Henry Doran, Mose Davis, Henry
Dillahunt, A. C. Duckworth, George Graham, Ned Graham, Pete Gillis, Tom
Graham, Fred Guinn, Gus Houston, Pate Hopson, Jack Hunt, Bob Hunt, Bob
Hardeman, Lewis Hassell, John Hassell, Ben Higgins, G.O Hunt, Bill
Hunt, Bud Hunt, Chub Hunt, Caesar Kendall, George King, Bill Kyle, Jim
Lutts, Jerry McDougal, Jim McKinney, John Pol-
Sec. 1132
lard, Sid Pollard, Frank Pollard, Tom Patton, Green Patton, W. A.
Palmer, Otis Pointer, Jerry Sevier, Elias Stephens, Jim. Stephens, Joe
Sanderson, Mose Shull, Sam Tall, Dave Winters, Bishop White, Elias
Williams, Joe Young, Louis Hassell, Bob House, Buck House, John Hinton,
Dez Johnson, Ernest Johnson, Ike Kendall, Bob Johnson, Ras White, Ike
Lynch, Bill Wolf, Will Fitzgerald, Adam Ellison, Sam Bundy, Charlie
Ermin, Press Martin, Andrew Mack, Jonas Ross.
``9. Q. Will you please file said list as Exhibit A to this, your
deposition, making it a part of the same?--A. I herewith file the same,
marked `Exhibit A.'
``10. Q. Was the parties whose names you have given otherwise
qualified voters in said November election for all State and county
officers, barring the provisions of the Dortch law?--A. I think they
were.''
In his cross-examination this passage occurs:
``14. Q. How many of the persons named by you in answer to question 8
in chief that can not read?--A. I could not say just how many.
``15. Q. Had the persons whose names you give in answer to question 8
in chief paid their poll taxes for the year 1901 before the November
election, 1902?--A. I could not say whether all of them had or not, but
I know some of them had.
``16. Q. How many of them had registered for voting?--A. I do not
know.''
Even among these vague statements there is not a single assertion
that anyone of the 72 persons named desired, even if qualified, to vote
for contestant.
S. J. Creevy produced a list of 345 names, concerning which he
testified as follows:
``27. Q. I will ask you to state if you have briefly, made a list of
voters in this city and civil district who are unable to read?--A. Yes,
sir; I made that yesterday.
``28. Q. How many names does this list prepared by you contain?--A.
If I made no mistake in the count it is 345.
``29. Q. Do you think those persons appearing from this list are able
to vote under what is known as the Dortch law?--A. I do not.
``30. Q. If those persons appearing upon said list could vote, what
ticket would they vote?--A. My opinion is they would vote the
Republican ticket.''
From his cross-examination the following is taken:
``8. Q. You have stated that there were 750 Republican voters in the
city of Jackson, and of this number you estimated about 345 were unable
to read. Now state whether the remaining 405 voters are able to vote
under the Dortch law.--A. I think they are.
``9. Q. Then how do you account for the fact that Hon. F. M. Davis,
candidate for Congress, received only 23 votes in this city at the last
November election?--A. I account for it by the Republican voters not
having their poll taxes and by general indifference as to the result of
the election.
``10. Q. What was the cause of that indifference?--A. To some extent
dissatisfaction existing in the Republican party in the county; and
being what we term an off year, accounts for some of it.
``11. Q. What dissatisfaction do you speak of existing in the
Republican party?--A. Dissatisfaction as to the county organization; as
to who would be recognized as county chairman and members of the
executive committee.
``12. Q. Is it not a fact that there were two factions--one headed by
H. C. Worsham and the other headed by F. R. Bray--amd that the majority
of the colored voters were identified with the Worsham faction?--A. I
can't say a majority. They were nearly equally divided from the
strength exhibited in the convention.
``14. Q. Which faction had the larger following?--A. Both factions
claimed it.
``15. Q. Did either faction champion Mr. Davis's candidacy?--A. The
Bray faction recognized Mr. Davis as the regular nominee and entitled
to the Republican support.
``16. Q. What was the attitude of the Worsham faction toward Mr.
Davis?--A. Apparently it was hostile.
``17. Q. Did this apparent hostility serve to keep the members of the
Worsham faction from voting for Mr. Davis?--A. I am of the opinion that
it did.
``18. Q. Of the 345 voters in the city of Jackson whom you say are
unable to read, what per cent of these can be instructed or coached
before election so as to be able to vote under the Dortch law?--A. My
opinion, not over 5 per cent.
Sec. 1132
``19. Q. Is it necessary to pay poll tax in order to vote in the
Fifteenth civil district?--A. If you are not exempt by age or
infirmity, it is.
``20. Q. Are you able to state what per cent of the persons whose
names appear on Exhibit A pay their poll taxes?--A. I estimate 75 per
cent of them are over age.
``21. Q. Can you say of your own knowledge what per cent of the
remainder pay their poll taxes?--A. I can not.
``22. Q. From your personal knowledge, then, it may be that none or a
very few of them?--A. It may be; yes, sir. I am not informed.''
Upon the mere expression of opinion by the witness that ``they would
all vote the Republican ticket'' and without evidence of registration
or tax payments we are asked to add 345 to contestant's vote. The
evidence concerning the remainder of the names claimed as proved by
contestant is of the same class except that in some instances there was
evidence tending to show registration and payment of taxes.
Upon this character of testimony we are asked to treat 1,061 named
persons as if they had voted for contestant. As already shown, 20 only
of them have testified. As to the other 1,041, the evidence is even
less satisfactory than that which was rejected in the Forty-third
Congress in Bell v. Snyder (Smith's digest, 247), in which case the
committee said:

``L. Bloomer, supervisor at that precinct, in his deposition, page
164, states that the 20 persons whose names are given by him had
certificates of registration, and that he saw all of them registered
except two, and that they would have voted for contestant if they had
been allowed to vote; that they presented their certificates of
registration and offered to vote; then made affidavit and offered to
vote. He says that he did not read all the tickets, but to the best of
his knowledge the parties would have voted for Bell, as all the Reform
tickets were alike.
``The committee regard the fact of these 20 persons having been
registered as voters as sufficiently proven, but the proof as to the
fact that all of them offered to vote for contestant or that they
intended to or would have voted for contestant is insufficient.''
In the case in hand 1,041 of the persons named did not even offer to
vote. As to many of them we have no evidence of their registration or
payment of taxes, and as to none of them have we any save hearsay
evidence that they desired to vote at all or would in any event have
voted for contestant.
The additional 1,920 claimed by contestant rest upon evidence even
more flimsy--the mere estimates of witnesses of which a fair sample is
found in the testimony of T. J. Sawner, here given in toto:
``1. Q. What is your age, place of residence, and what position do
you hold in the county?--A. I am 46 years old; reside at Savannah,
Tenn., and am sheriff of Hardin County.
``2. Q. What experience have you had in the politics of Hardin
County, and how many times have you canvassed the county?--A. I have
had some experience in the politics of the county. I have canvassed the
county something like half a dozen times, but not thoroughly, though,
every time.
``3. Q. How many times have you been sheriff of Hardin County, and
what other offices have you held?--A. I have been sheriff three times,
and was constable of the fourth district before I was elected sheriff.
``4. Q. Are the elections of the Fourth civil district of Hardin
County held under the provisions of the Dortch law and what kind of
qualifications does it place upon the voters?--A. They are held under
the Dortch law, and a man is required to read and has to be a good
marker.
``5. Q. Is it possible for a person who can not read to vote the
Dortch ticket?--A. It is not, unless he has assistance.
``6. Q. What effect has the application of the Dortch law had upon
the Republican vote of Hardin County? I mean how much has it diminished
their vote?--A. I believe it has diminished their vote something like
500.
``7. Q. In your best judgment, how many Republicans are there in the
Fourth civil district of Hardin County who can not vote under the
Dortch law?--A. I believe there is 100.
``8. Q. What effort was there made by the leading Republicans of
Hardin County in the campaign in 1902 to poll their full strength for
their ticket?--A. They made as strong an effort as possible under the
circumstances.
``9. Q. I will ask you if there were men selected and put into each
civil district of the county several days before the election for the
purpose of canvassing each Republican voter in order to get him out to
the November election, 1902?--A. That is my understanding.
Sec. 1133
``10. Q. I will ask you if the Republicans felt very buoyant and
hopeful of success in the Congressional election of November, 1902--?-
A. They did.
``11. Q. Have you made a list of the Republicans whom you know to be
disfranchised under the operation of the Dortch law in the Fourth civil
district of Hardin County?--A. No; I have not.
``Further this deponent saith not.''
Upon this it is demanded that 100 votes be added to contestant's
count, and upon similar testimony a total of 1,920. No names are given,
no evidence of registration or payment of taxes, nor of intention or
desire upon the part of the unknown persons to vote for contestant.
Such evidence is wholly inadmissible for any purpose. There have been
cases in which persons proved to have been qualified, desiring,
intending, and attempting to vote, have had their votes counted,
notwithstanding that they were not received by the election officer;
but there is no precedent for adding to the count the votes of persons
not shown to have attempted or desired or been qualified to vote for
any candidate under the law.
A careful study and analysis of all the evidence in this case and of
the printed briefs, supplemented by exhaustive oral arguments of able
counsel, convinces us that, no matter what view may be taken of the
Dortch law, the result of the election is not changed. Your committee
therefore recommends the adoption of the following resolutions (H. Res.
No. 241):

``Resolved, That F. M. Davis was not elected to membership in the
House of Representatives of the United States in the Fifty-eighth
Congress, and is not entitled to a seat therein.
``Resolved, That T. W. Sims was elected to membership in the House of
Representatives of the United States in the Fifty-eighth Congress, and
is entitled to a seat therein.''

The resolutions were agreed to by the House without debate or
division.
Although the main issue was thus simplified, the committee discussed
several questions related to the case but not essential to its
determination:
(1) As to a failure of election officers to hold elections in certain
precincts:

In the two precincts of Sibley and Walnut Grove, in Hardin County,
the election officers failed to hold any election. It is claimed that
the Republicans are in considerable majority in these precincts, and
that by the failure of the Democratic officials to hold elections the
contestant was deprived of votes which he would otherwise have
received. It appears, however, that under the law of Tennessee a voter
may vote in any one of several precincts in the same civil district,
and it is in evidence that there were three other voting places in that
particular civil district in which the residents of Sibley and Walnut
Grove might have voted. We are not fully satisfied with the reason
given for failure to hold elections in these precincts. It is perhaps
not unfair to presume that the real reason was a desire to prevent or
reduce the Republican vote by subjecting these people to the
inconvenience of journeying to other precincts at distant points. But
as we are not advised whether all or any of the voters in these
precincts did vote in any of the three other precincts in which they
were lawfully entitled to vote, we are unable to say to what extent, if
at all, failure to hold elections in Sibley and Walnut Grove affected
the votes of the respective parties to this contest.

(2) As to an irregularity in handling returns:

Contestant charges that the returns in Henry County were opened
before the meeting of the election board. The fact appears to be that
the chairman, upon receipt of the returns, opened them, compiled the
vote on a properly prepared sheet, and upon the meeting of the full
board submitted the same to them, when the returns were compared with
the tally sheet and certified. There is no evidence of any dishonesty
in this practice or that the returns as certified were not correct.

41133. The case of Davis v. Sims, continued.
Discussion of the claim that a ballot law practically disfranchising
the ignorant established an unconstitutional qualification.
Discussion of the claim that a law practically disfranchising the
ignorant in certain portions only of a State violated a constitutional
provision that ``elections shall be free and equal.''
Sec. 1133
Reference to the principle that in exercise of the powers conferred
by the Federal Constitution the State legislature is not controlled by
the State constitution.
(3) As to the constitutionality of the Dortch law.
The committee describe the law:

The so-called ``Dortch law'' (named after the person who originally
devised or introduced the system) now comprises a principal act passed
in 1890 and a number of supplemental acts of various later dates. It
does not apply to the whole State, but requires that in certain
specified portions there shall be used an official ballot, which may be
described as one variety of the Australian form.
``This ballot contains no party emblems, devices, designations, nor
party column. There is no provision for voting a straight party ticket
by marking in a circle or square or in any other manner. The law
requires that ``the names of all candidates for the same office shall
be printed together and arranged alphabetically according to the
initials of their surnames, irrespective of party; but the order in
which the title of the various offices to be filled shall be arranged
upon each separate ticket or ballot shall be left to the will of the
officer or officers charged with the printing of said ticket.''

After giving forms of ballot, the report continues:

The voter having received a ballot is to go into the voting
compartment and ``prepare his ballot by marking in the appropriate
margin or place a cross (X) opposite the name of the candidate of his
choice for each office to be filled, or by filling in the name of the
candidate of his choice in the blank space provided therefore and
marking a cross (X) opposite thereto.''
He may not have in advance a specimen ballot, and until he receive
the official ballot, just before going into the booth, can not even
know the order in which the respective offices will be grouped thereon.
But he may with his ballot receive a printed card of instruction, of
which the following is a sample:

``Official card of instructions prepared by commissners of registration
of election.
This card is intended to assist and instruct voters how to prepare
their ballots.
``1. Having received from the registrar your polling place an
official ballot, present it with your certificate of registration to
the assistant registrar, who will number the stub of the ballot and put
the same number on your certificate of registration; then go to one of
the shelves or compartment and prepare your ballot by placing a cross
mark (thus X) before or after the line in which the name of your choice
appears.
``2. You are not allowed to vote any ticket except the official
ballot.
``3. If you spoil your ballot in trying to mark it correctly, return
it to the registrars and get another; you will be allowed to get but
three ballots. You are not allowed to take or remove any ballot from
the polling place, but must deposit the ballot as received, or return
the same to the registrars, as above provided, in case you have spoiled
the game.
``4. If you are unable to your ballot, by reason of blindness or
other physical disability, ask the officer holding the election to
assist you.
``5. Before leaving the voting shelf fold your ballot without
displaying the marks thereon, but so that the words `Official ballot
for,' etc., printed on the back of the ballot, and the numbered stub
shall be plainly visible; then present to the officers of election your
certificate of registration, your poll-tax receipt, and your marked
ballot.
``6. It is your duty to mark and deposit your ballot without undue
delay and quit the polling place as soon as you have voted. If other
persons are ready to vote when you get your ballot you will be allowed
only five minutes in which to mark it, but if no other voters are
waiting you will be allowed ten minutes.
``7. You must not allow any person to see your ballot, or to take the
same from you, or remove the same from the polling place, nor to place
any mark on the same other than as hereon instructed, it being a
misdemeanor to do so.''
If ``by reason of blindness or other physical disability he is unable
to mark his ballot'' the voter may receive the assistance of the
officer holding the election in marking the same, but unless so blind
or otherwise physically disabled he can be assisted only in the
following way:
``The registrar shall upon demand of any voter made at the time his
ballot is handed to him give
Sec. 1133
to such voter a correct statement of the order in which the title of
the various offices to be filled stand upon the particular ballot
furnished to such voter.''
It is expressly provided that ``a voter who shall, except as herein
otherwise provided, allow his ballot to be seen by any other person * *
* or any person who shall * * * aid, or attempt to aid, any voter by
means of any mechanical device, or any other means whatever, in marking
his ballot, shall be punished by a fine of not less than $10 nor more
than $100,'' and election officers are to cause the arrest of any
person so violating this provision, and the offender is to be ``treated
as one caught in the very act of committing a misdemeanor.''
It is alleged by contestant in his notice of contest that these
statutory provisions ``are highly partisan; were passed, together with
their amendments, with partisan motives and in an intolerant partisan
spirit.''
We do not see, however, that we have anything to do with that. This
House can hardly be expected to preserve the balance of partisanship in
State legislatures, nor can the motives of State legislators be
considered in determining Congressional elections, provided the
statutes enacted by them were within their constitutional authority.

The inquiry as to the constitutionality of this law involved two
branches:
(a) Does it establish an additional qualification:

But contestant contends that no person who can not read can vote the
official ballot; that by the Dortch law an additional qualification is
thus imposed, and that it violates Article I of the State constitution
of Tennessee, which declares ``that elections shall be free and equal,
and the right of suffrage as hereinafter declared shall never be denied
to any person entitled thereto, except upon a conviction by a jury of
some infamous crime previously ascertained and declared by law and
judgment thereon by a court of competent jurisdiction.''
And section 1 of article 4, which is as follows:

``Every male person of the age of 21 years being a citizen of the
United States and a resident of this State for twelve months, and of
the county wherein he may offer his vote for six months next preceding
the day of election, shall be entitled to vote for members of the
general assembly and other civil officers of the county or district in
which he resides; and there shall be no qualifications attached to the
right of suffrage, except that each voter shall give to the judges of
election where he offers to vote satisfactory evidence that he has paid
the poll taxes assessed against him for such preceding period as the
legislature shall prescribe, and at such time as may be prescribed by
law, without which his vote can not be received; and all male citizens
of the State shall be subject to the payment of poll taxes and to the
performance of military duty within such ages as may be prescribed by
law. The general assembly shall have power to enact laws requiring
voters to vote in the election precincts in which they may reside, and
laws to secure the freedom of elections and the purity of the ballot
box.''
Some seventy witnesses in this case, some of whom were white and some
colored, some Democrats and some Republicans, all testified that
ability to read is essential to enable one to vote this form of ballot.
The contestee himself frankly admits that a person unable to read can
not vote ``as well as a man who can read and write; but he can possibly
vote some ballots under the law, and they do it.'' It must be manifest
to anyone that the persons unable to read, who can successfully mark
all the candidates of a particular party, especially in a Presidential
year, must be very few, if any.
The supreme court of Tennessee, however, in Cook v. State, 90 Tenn.,
407, sustained an indictment and conviction for ``aiding electors in
marking their ballots, instructing them how to vote,'' etc., and
expressly declared that this law does not violate Article IV of the
State constitution. This ruling was followed by the Elections Committee
and the House in Thrasher v. Enloe in the Fifty-third Congress, the
minority, however, expressly declaring its opinion that the act was
unconstitutional.

(b) As to the provision of the Tennessee constitution requiring that
``elections shall be free and equal'':

The Tennessee court does not appear to have considered the
constitutional requirement that ``elections shall be free and equal.''
This provision, found in many State constitutions, must have been
intended to have some meaning and effect. Unlike the rain from heaven,
the Dortch law does not fall upon the just and the unjust alike or, to
be more accurate, it does not fall upon all of the just
Sec. 1133
nor upon all of the unjust. It does not apply to the whole State nor to
the whole of this Congressional district. It applies only in spots.
In the Eighth Congressional district there are 168 civil districts.
The Dortch law applied in 13 of them and practically required the voter
to be able to read in order properly to mark his ballot. In the other
districts a voter might use a printed ballot or write his ballot, if he
desired, or have somebody else write it for him and carry it in his
vest pocket for a week or six weeks and vote it freely upon election
day and have it counted, provided, of course, he was duly registered
and had paid his taxes. With such varying conditions in different parts
of the same Congressional district, are elections ``free and equal?''
The supreme court of Tennessee further sustained this law in Moore v.
Sharp, 98 Tenn., 491.
The constitution of Kentucky, like that of Tennessee, contains a
provision that all elections shall be ``free and equal.'' The
legislature prescribed a form of ballot and required each voter to
retire to a compartment and there unaided and alone indicate by marks
on his ballot the various candidates for the several offices for whom
he wished to vote. The supreme court of that State in Rogers v. Jacob,
Mayor, etc. (98 Ky., 502), unanimously declared that provision of the
statute unconstitutional, Mr. Chief Justice Lewis, who delivered the
opinion, saying (p. 508):

``A statute requiring votes to be given by ballot need not, any more
than the mode of voting viva voce, operate unequally or so as to
deprive any person entitled of the privilege of suffrage, and if the
one we are considering conflicts with that clause of the constitution,
or denies the privilege of free suffrage, which really exists
independent of that section, it is simply on account of defect or vice
of some particular provision not indispensable to the general or
successful operation of the law. And the only question about which we
have any difficulty is in regard to section 9, that, by requiring each
voter to retire to a compartment and there, alone and unaided, indicate
by a mark on his ballot the various candidates for numerous offices he
wishes to vote for, practically operates to deprive those unable to
read or write of a free and intelligible choice, and in fact makes free
suffrage as to them a matter of chance or accident. And thus, while the
interests and rights of many may be involved and should not be denied
or jeopardized by nullifying the entire statute already in operation,
if it is in other respects valid, we have no right to sanction any law
or part of a law that takes from a single human being his
constitutional rights. It is, however, permissible and often important
to limit the operation of, disregard, or strike from a statute one or
more provisions that conflict with the constitution rather than allow
them to vitiate the whole; and in accordance with, or at least in
analogy to, that rule section 9 must be held inoperative to the extent
it in the manner mentioned deprives illiterate persons of the
opportunity and means of freely and intelligibly voting, for they have
the right to avail themselves of whatever reasonable aid and
information may be necessary to enable them to cast their ballots
understandingly, and can not be legally deprived of it.''
The State of Virginia had a similar provision in its constitution
requiring freedom and equality of elections. The legislature passed a
law providing a ballot much like the Dortch-law ballot, except that it
provided that ``at the request of any elector in the voting booth who
may be physically or educationally unable to vote, the said special
constable may render him assistance by reading the names and offices on
the ballot and pointing out to him the name or names he may wish to
strike out, or otherwise aid him in preparing his ballot.''
In passing upon that statute, in Pearson v. Supervisors, etc. (91
Va., 322), the supreme court of that State said (p. 330):

``It will not be disputed--
``First. That the right of suffrage is derived from the constitution
of the State, and to it we look for the qualification of voters and the
limitations and restrictions upon the right of voting; in other words,
to ascertain who may or who may not vote.
``Second. That the legislature can not prescribe any qualification in
addition to those found in the constitution, and any attempt to do so
openly or covertly, directly or indirectly, is void.
``Third. That there is no educational qualification prescribed by our
constitution, and a person otherwise qualified to vote, no matter how
ignorant he may be, is entitled to vote.
``Fourth. That the sole function of the legislature, with respect to
the exercise of the right of suffrage, is to provide the mode in which
those entitled to vote may do so and have their votes counted, and to
guard against improper, illegal, or fraudulent voting.
Sec. 1133
``Fifth. That to this end the legislature may adopt and enforce
reasonable rules and regulations to secure the one and prevent the
other.
``Sixth. But if under cover of a law to regulate voting a provision
is introduced into the law which virtually establishes a test of the
qualification of the voter, additional to those prescribed in the
constitution, such provision of the law transcends the power of the
legislature and is null and void.''
And again (p. 332):
``It is obvious that one who, either from physical or intellectual
blindness, is unable to read, is wholly incapable of voting by ballot
without assistance from some quarter.''
The court sustained the statute in that case by construing the word
``may'' to mean ``must,'' thus making it absolutely the duty of the
sworn special constable not only to point out the names and offices on
the ballot, as provided in the Tennessee statute, but also to do what
is positively prohibited by the Dortch law, viz, ``otherwise aid him in
preparing his ballot.''
A Michigan statute, providing an official ballot and requiring it to
be marked by the voter in the booth, contained no provision either
forbidding or allowing him to have assistance. Its constitutionality
was challenged in Common Council v. Rush, 82 Mich., 532, and the
supreme court of that State, after referring to the Kentucky case, said
(p. 541):
``It is contended that under the act in question the result is the
same, because no one is permitted to accompany the voter to the booth
to assist him. It is to be regretted that the legislature did not
expressly provide for furnishing ballots to this class of voters. We
must therefore carefully examine the act to ascertain if it leaves no
way for such voters to obtain ballots. It is clear that if voters are
limited to the use of tickets provided in the booths then some voters
are disfranchised by the very terms of the law. But we do not think
that the law necessarily bears that construction. There is no express
prohibition against assisting such a person in the preparation of his
ticket, nor against his obtaining a ticket outside the polling place
for that purpose, nor against assisting to a booth or the polls one
physically unable to go alone. Such a case is not within the mischief
aimed at, and we hold that under this law such a voter is entitled to
receive assistance in the preparation of his ticket, and to receive and
have his ticket prepared outside the polling places. This, we think, is
in accord with that maxim of interpretation that a thing which is
within the spirit of a statute is within the statute, although not
within the letter, and a thing within the letter is not within the
statute unless within the intention.''
In other words, in order to sustain the statute, the Michigan court
construed into it a very liberal provision providing for such
assistance to the voter as, under the Dortch law, would render the
voter and the person assisting him subject to fine and imprisonment.
In Capen v. Foster, 12 Pick., 488, the supreme court of Massachusetts
marked the distinguishing line between laws which took away or abridged
the right of suffrage and those which may lawfully be enacted to
regulate its exercise, and held, substantially, that in order to belong
to the latter class, such laws must be reasonable, uniform, and
impartial, and must be calculated to facilitate and secure, rather than
to subvert or impede, the exercise of the right to vote. This
proposition was sustained by the supreme court of Ohio in Monroe et al.
v. Collins, 17 Ohio, 665, in which case a statute of that State was
declared unconstitutional and void because, although entitled ``An act
supplementary to the act entitled `An act to preserve the purity of
elections,''' it imposed upon certain classes of persons conditions not
imposed upon others, to enable them to exercise the right to vote.
The supreme court of Pennsylvania in a very recent case held in an
opinion by Chief Justice Mitchell, as reported in the Philadelphia
Press of February 16, 1904, that--
``The constitution confers the right of suffrage on every citizen
possessing the qualifications named in that instrument. It is an
individual right and each elector is entitled to express his own
individual will in his own way. His right can not be denied, qualified,
or restricted. The constitution itself regulates the times and, in a
general way, the method, to wit, by ballot with certain specified
directions as to receiving and recording it. Beyond this the
legislature has the power to regulate the details of place, time,
manner, etc., in the general interest for the due and orderly exercise
of the franchise by all electors alike. Anything beyond this is not
regulation, but unconstitutional restriction.
``It is never to be overlooked, therefore, that the requirement of
the use of an official ballot is a questionable exercise of legislative
power, and even in the most favorable view treads closely on the border
of a void interference with the individual elector. Every doubt,
therefore, in the construction of the statute must be resolved in favor
of the elector.
Sec. 1134
``Every elector, as already said, has the right to express his
individual will in his own way and for his own reasons, which are not
open to question, however unsound or unimportant others may deem them.
And the rights of electors acting together as a party are equally
beyond question. The electors themselves are the only tribunal to
decide whether the principles, platform, aim, or method of reaching the
desired object are broad enough, permanent enough, or important enough
to be the basis of united action as a party, and, if they so decide,
courts must recognize and treat them accordingly.''
We have stated contestant's contention very fully and the authorities
bearing thereon in conflict with the Tennessee decisions.

(4) Another question raised by the sitting Member was stated by the
committee but not discussed.

But the contestee, while not admitting that the Dortch law is in
violation of any provision of the State constitution, contends that
even if it were it would still be valid because of the provision of
sec. 4, art. 1, of the Constitution of the United States, that in the
absence of action by Congress ``the times, places, and manner of
holding elections for Senators and Representatives shall be prescribed
in each State by the legislature thereof.'' He contends that in the
exercise of the powers thus conferred by the Federal Constitution the
legislature can not be controlled by the constitution of the State, and
in support of this proposition cites Baldwin v. Trowbridge, 2 Bart.;
Donnelly v. Washburn, 1 Ells., 495, and McCrary's Law of Elections,
109-112.

The resolutions recommended by the committee were agreed to without
division.
1134. The South Carolina election case of Dantzler v. Lever in the
Fifty-eighth Congress.
The House declined to invalidate an election because a State
constitution had established qualifications of voters in disregard of
reconstruction legislation.
As to the duty of the House to pass on the constitutionality of a
State law as to the qualifications of voters.
On March 18, 1904,\1\ Mr. James R. Mann, of Illinois, from the
Committee on Elections No. 1, submitted the unanimous report of the
Committee on the South Carolina election case of Dantzler v. Lever.
This report was as follows:

At the Congressional election in the Seventh district of South
Carolina on the 4th day of November, 1902, the contestant, Alexander D.
Dantzler, received in said district the total number of 167 votes. The
contestee, Asbury F. Lever, received 4,220 votes.
There is nothing in the record or in the case to sustain a claim that
the contestant, Dantzler, was elected. It is indisputable that if a
legal election were held in the district the contestee, Lever, was
fairly elected.
It is urged on behalf of contestant that no legal election was held
in South Carolina, and the claim is made that both the election laws
and the constitution of South Carolina, then and now in operation, are
illegal, invalid, and unconstitutional because in direct conflict with
the so-called reconstruction act of June 25, 1868 (15 Stat. L., 73),
readmitting South Carolina and other States to representation in
Congress upon the condition (stated in said act to be a ``fundamental''
condition) ``that the constitution of neither of said States shall ever
be so amended or changed as to deprive any citizen or class of citizens
of the United States of the right to vote in said State who are
entitled to vote by the constitution thereof herein recognized, except
as a punishment for such crimes as are now felonies at common law,
whereof they shall have been duly convicted under laws equally
applicable to all the inhabitants of said State: Provided, That any
altering of said constitution may be made with regard to the time and
place of residence of voters.''
The constitution of South Carolina referred to in the reconstruction
act of June 25, 1868, did not contain any educational or property
qualification of voters. The constitution of South Carolina of 1895
-----------------------------------------------------------------------
\1\ Second session Fifty-eighth Congress, House Report No. 1740;
Record, p. 3429.
Sec. 1134
(which was adopted and put into effect by a constitutional convention
without a vote of the people adopting it), as well as the election laws
adopted or passed in accordance with it, contain educational and
property qualifications.
It is claimed that under the South Carolina constitution of 1895, and
the election laws in force under it, many citizens are deprived of the
right to vote in said State who were and would be entitled to vote by
the constitution of 1868, referred to in the reconstruction act of June
25, 1868. The South Carolina constitution of 1895 and the election laws
under it are therefore claimed to be in direct conflict with the
reconstruction act of June 25, 1868, readmitting South Carolina to
representation in Congress upon the conditions therein named as
``fundamental conditions.''
Contestant claims that if the citizens of the Seventh Congressional
district of South Carolina who could have voted under the terms of the
constitution of 1868 had been permitted to vote he would have been
elected, and he asserts that many thousands of colored voters in the
Congressional district entitled to vote under the constitution of 1868
were deprived of the right to vote under the educational and property
qualifications of the constitution of 1895.
It is very plain that contestant was not elected; but counsel for
contestant insists that if contestant was not elected then no election
was held, and that it is the duty of Congress to declare that no valid
election was held in South Carolina for Members of the Fifty-eighth
Congress, and therefore to unseat the contestee.
It would seem that if no valid election was held in the Seventh
Congressional district of South Carolina in November, 1902, and if the
House of Representatives, holding this view, should declare the seat
from that district vacant, then no election could be held to fill the
vacancy until after the South Carolina constitution of 1895 and the
election laws under it had been changed. This would necessarily involve
an entire lack of representation from the district for a considerable
period of time.
If the Seventh district of South Carolina were the only district
involved it might be proper for the Committee on Elections, as well as
the House itself, to put on record its opinion in the case and to
declare elected or not elected, as that opinion might run, the
contestee. But the reconstruction acts were not confined to South
Carolina. Practically the same ``fundamental conditions'' are found in
the acts readmitting Virginia, North Carolina, Georgia, Florida,
Alabama, Mississippi, Louisiana, Texas, and Arkansas to representation
in Congress. Most of these States have adopted new constitutions said
to be in conflict with the terms and provisions of the reconstruction
acts readmitting them to representation in Congress.
It follows, therefore, quite logically that if the House should
unseat the contestee on the ground that no valid election was held or
could be held in his district under the present constitution and
election laws of South Carolina, a similar construction would require
the House, in the case of contest, to unseat all of the Members from
South Carolina and from most of the other Southern States, and that new
elections could not be held to fill the vacancies until the respective
constitutions of these States had been changed so as to comply with the
reconstruction acts.
The question of the constitutionality and validity of the
constitution and election laws of South Carolina, therefore, in its
effect upon the membership of this House is one of far-reaching
importance. It involves in its outcome the right of a very large number
of the Members of the House to their seats. But the decision of this
House against the contestee in this case would have no binding force in
South Carolina except in this particular case. It probably would not be
followed or obeyed by the State of South Carolina except in this
particular case.
However desirable it may be for a legislative body to retain control
of the decision as to the election and qualification of its members, it
is quite certain that a legislative body is not the ideal body to pass
judicially upon the constitutionality of the enactments of other
bodies. We have in this country a proper forum for the decision of
constitutional and other judicial questions. If any citizen of South
Carolina who was entitled to vote under the constitution of that State
in 1868 is now deprived by the provisions of the present constitution
he has the right to tender himself for registration and for voting, and
in case his right is denied, to bring suit in a proper court for the
purpose of enforcing his right or recovering damages for its denial.
That suit can be carried by him, if necessary, to the Supreme Court
of the United States. If the United States Supreme Court shall declare
in such case that the ``fundamental conditions'' in the reconstruction
acts were valid and constitutional and that the State constitutions are
in violation of those acts, and hence invalid and unconstitutional,
every State will be compelled to immediately bow in
Sec. 1135
submission to the decision. The decision of the Supreme Court would be
binding and would be a positive declaration of the law of the land
which could not be denied or challenged.
On the contrary, the decision of the House of Representatives upon
this grave judicial question would not be considered as binding or
effective in any case except the one acted upon or as a precedent for
future action in the House itself.
A majority of the Committee on Elections No. 1 doubt the propriety in
any event of denying these Southern States representation in the House
of Representatives pending a final settlement of the whole question in
proper proceedings by the Supreme Court of the United States. Some of
the members of the committee believe the ``fundamental conditions'' set
forth in the reconstruction acts to be valid and the constitutions and
election laws of these States to be in conflict with such conditions,
and hence to be invalid.
Some of the members of the committee believe the ``fundamental
conditions'' set forth in the reconstruction acts to be invalid and the
constitutions and election laws of the States claimed to be in conflict
with such conditions to be valid. Some members of the committee have
formed no opinion and express no belief upon the subject.
Your Committee on Elections No. 1 therefore respectfully recommend
the adoption of the following resolution:

``Resolved, That Alexander D. Dantzler was not elected a Member of
the Fifty-eighth Congress from the Seventh Congressional district of
South Carolina, and is not entitled to a seat therein.''

The resolution was agreed to by the House without debate or division.
1135. The South Carolina election cases of Jacobs v. Lever, Myers v.
Patterson, and Prioleau v. Legare, in the Fifty-ninth Congress.
The House will not count votes of persons alleged to have been
illegally denied the right to vote, on the strength of mere lists of
such persons kept loosely and not authenticated by testimony.
Affirmation of the conclusion that the House would not invalidate an
election because a State had disregarded reconstruction legislation as
to qualifications of voters.
Where the validity of a State's election system was questioned, the
House merely declared contestant not elected, and did not declare
sitting Member entitled to the seat.
On June 5, 1906,\1\ Messrs. James R. Mann, of Illinois; Lewellyn
Powers, of Maine, and H. Olin Young, of Michigan, from the Committee on
Elections No. 1, respectively reported on the South Carolina election
cases of Charles C. Jacobs v. Asbury F. Lever, Isaac Myers v. J. O.
Patterson, and Aaron P. Prioleau v. George S. Legare.
Each of these cases involved the constitutional question passed on in
the Fifty-eighth Congress in the case of Dantzler v. Lever,\2\ and in
each case the committee affirmed the conclusion arrived at in that
case.
In the Prioleau case \3\ this further question was decided:

At the Congressional election held in said district November 8, 1904,
the contestant, Aaron P. Prioleau, received 234 votes. The contestee,
George S. Legare, received 6,068 votes. This gave to the contestee, on
the face of the returns, a majority of 5,834 votes.
To overcome this apparent majority, the contestant claims that 11,800
legal voters in said district applied to the managers of election in
the different precincts for the right to vote and were denied that
right; that all of said persons would have voted for contestant and
that, as the refusal to permit them to vote was illegal, their votes
should be counted for contestant. To sustain the claim of contestant,
-----------------------------------------------------------------------
\1\ First session Fifty-ninth Congress, Record, p. 7886; House
Reports Nos. 4779, 4780, 4781.
\2\ See Section 1134 of this chapter.
\3\ Report No. 4779.
Sec. 1135
he has introduced in evidence lists of names purporting to be the names
of persons who were those illegally refused the right to vote for
contestant. These lists, as set forth in contestant's brief, are as
follows:

VOTING TABLE.

----------------------------------------------------------------------------------------------------------------
A. P.
Prioleau. G. S.
Name. Town. Ward. Polling precinct. Rejected Legare.
Voters. No.
No.
----------------------------------------------------------------------------------------------------------------
J. L. Smalls................... Charleston, S. C. 4................ ................. 279 6,068
Thadus Smalls.................. do............... 6................ ................. 400 ..........
A. Campbell.................... James Island..... ................. ................. 450 ..........
J. S. Glover................... Charleston, S. C. 12............... ................. 300 ..........
J. J. Lockwood................. do............... 10............... ................. 400 ..........
R. B. Geddes................... John Island...... ................. ................. 620 ..........
S. G. Gilliard................. Beach Hill....... ................. ................. 350 ..........
Henry Wilson................... Fivemile House... ................. ................. 450 ..........
Robert Small................... Charleston, S. C. 7................ ................. 683 ..........
Frank Barnwell................. do............... 8................ ................. 520 ..........
I. L. Prioleau................. Calamus Pound.... ................. ................. 570 ..........
R. W. Sinchler................. Summerville, S. C ................. ................. 650 ..........
F. J. Byas..................... Edisto Island.... ................. ................. 583 ..........
J. C. Tingman.................. St. Steven....... ................. 5................ 560 ..........
R. W. Green.................... Biggins Church... ................. ................. 460 ..........
R. G. Richardson............... Tenmile Hill..... ................. ................. 398 ..........
Robert Heywood................. Charleston, S. C. 6................ ................. 200 ..........
J. W. Keith.................... Cams Crossroad... ................. ................. 680 ..........
James Wright................... Cooper Store..... ................. ................. 650 ..........
E. W. Polly.................... Charleston, S. C. 5................ ................. 335 ..........
S. W. Barnwell................. St. Andrews...... ................. ................. 450 ..........
George Frost .................. Charleston, S. C. 10............... ................. 250 ..........
C. J. Glover................... do............... 12............... ................. 231 ..........
S. S. Maxwell.................. do............... 11 .............. ................. 198
Solomon Brown.................. do............... 1................ ................. 150 ..........
J. C. Gary..................... do............... 1................ ................. 300 ..........
John Drayton................... do............... 11............... ................. 300 ..........
J. E. Tentin................... do............... 9................ ................. 300 ..........
J. R. Cuthbert................. do............... 7................ ................. 200 ..........
James Collins.................. Mount Pleasant, ................. ................. 386 ..........
S. C.
Robert Teaden.................. Charleston, S. C. 7................ No. 2............ 280 ..........
C. P. Ragin.................... St. Paul, S. C. ................. St. Paul, S. C... 516 ..........
(P. O.).
Ira Learn...................... Manning (P. O.).. ................. Harmony.......... 300 ..........
Jno. Dow....................... do............... ................. Panda............ 400 ..........
Jno. Gill, secretary county ................. ................. Aledo............ 112 ..........
executive committee.
................. ................. McFaddin's store. 69 ..........
................. ................. Davis station.... 165 ..........
................. ................. Boykin's store... 72 ..........
................. ................. Jordan........... 174 ..........
................. ................. Wilson........... 21 ..........
................. ................. Fonston.......... 17 ..........
-----------------------
Total rejected voters vote. ................. ................. ................. 14,429 ..........
Vote counted............... ................. ................. ................. 234 ..........
-----------------------
Total...................... ................. ................. ................. 14,663 6,068
----------------------------------------------------------------------------------------------------------------
Majority for A. P. Prioleau, 8,595.

The tabulation in contestant's brief makes a total of 14,429 rejected
voters, which added to the 234 votes actually cast for contestant
would, as he claims, make 14,663 votes which he is entitled to have
counted for him, or a majority over contestee of 8,595.
Sec. 1135
It is claimed by contestant that these lists were kept by persons who
were stationed for that purpose not far from the respective polls in a
large number of precincts in the district and that the men whose names
appear upon the lists, after attempting to vote and being denied the
right, returned to the persons who were keeping the lists in the
various precincts and either wrote their respective names upon the
lists or gave their names to the persons in charge of the respective
lists who wrote the names thereon. In some instances the person keeping
a particular list was not near enough to the polls to know of his own
knowledge whether the men whose names he placed upon the lists, or
which were placed there by the men themselves, had, in fact, actually
offered to vote. He could have no means of knowing how the rejected
voters would have voted, if permitted to do so, except from their own
statements, and in many cases he could not know whether they were, in
fact, qualified voters.
Without expressing any opinion upon all of the lists offered in
evidence, the committee is of the opinion that a considerable portion
of the lists would have to be rejected in any event, because wholly
lacking in any sort of identification of either the person offering to
vote, his right to vote, or how he would have voted. Candidates can not
be elected to office merely by having some one keep lists of names of
persons who come near the polls. It is not necessary in this case to
determine whether sufficient identification has been made in this case
in regard to some of the lists to consider them as prima facie
evidence, because, in any event, the lists as presented do not, in the
opinion of the committee, make out a case in favor of contestant. The
evidence is utterly lacking to show that contestant is entitled to the
election on the facts presented by him.
A careful comparison of the tabulation of the lists set forth above
with the lists themselves as they appear in the record shows that the
tabulation made by contestant's counsel in his brief gives a number of
persons far in excess of the number of names actually appearing on the
lists themselves. The committee find from an examination of the lists
that the correct tabulation would be as follows:
[The committee then give a revised tabulation, showing a total of
9,026 rejected votes.]
This reduces the footings of the lists from 14,229 to 9,026; but a
large number of these lists must be rejected because of absolute
failure to make any effort to properly prove the lists or identify the
persons. For example, take the following cases:
R. B. Geddes, John Island; list, 620 name
Because Geddes's testimony shows that he did not keep all of this
list, but was assisted so to do by one A. E. Croffort, who took part of
the names and was not called as a witness, and the testimony utterly
fails to show which of the names were taken by Geddes and which were
taken by Croffort.
Frank Barnwell, Charleston; list, 194 names.
This list must be rejected because the testimony fails to show that
any person on that list was refused the right to vote.
R. W. Sinchler, Summerville; list, 650 names.
This list must be rejected because the testimony shows that Sinchler
did not keep all of the list; that he had no knowledge as to the
persons'' he did not himself place upon the list; that he fails to
identify any of those he placed upon the list or state how many there
were, and these omissions are not supplied by any other testimony.
J. C. Tingman, St. Steven; list, 560 names.
This list must be rejected for the reason that the testimony shows
that ``some two or three persons'' kept this list, the names of whom
are not given, and Tingman does not state how many of the names he
placed upon the list, and no other testimony was produced for filling
the gaps in his evidence.
R. W. Green, Biggins Church; list, 460 names.
This list is not authenticated by any testimony whatever, nor is it
identified as a list of rejected voters.
R. G. Richardson, Tenmile Hill; list, 398 names.
It clearly appears that the precinct at Tenmile Hill had been
abolished in 1898, and there is no evidence that any of the persons
appearing upon this list offered or were refused the right to vote at
the precinct in which they lived or at any legal precinct whatever.
J. E. Tentin, Charleston; list, 96 names.
The testimony shows that one John Graham, who was not called as a
witness, assisted in keeping this list. Tentin could identify only
seven names upon it as having been placed there by himself, nor
Sec. 1135
is there any testimony in regard to the other names upon the list
placed there by Graham or some one else.
James Collins, Mount Pleasant; list, 386 names.
This list was kept by Peter Johnson, who was not called as a witness.
Collins could not read or write and so could not know and did not know
that Johnson kept the list correctly, nor is there any other evidence
to supply this omission.
There is another infirmity about all the above lists, namely, that it
nowhere appears in the testimony or the lists themselves that the
parties named thereon were voters in the particular precinct in which
they attempted to vote.
John Gill, secretary of the county executive committee, Clarendon
County; lists, 638 names.
The exhibits produced by Gill included those marked ``D'' to ``J,''
inclusive, making a total of 638 names. These lists were left with Gill
and are not authenticated by any testimony whatever, and the persons
who kept the lists are not even named in the testimony, nor, indeed,
that they were kept at all as a list of rejected voters.
Ira Learn, Manning, Harmony; list, 58 names.
John Dow, Manning, Panada; list, 168 names.
The list produced by Ira Learn and that produced by John Dow were not
kept by the parties producing them, neither of whom could write, but
both signed their testimony with a mark.
The deductions made in the examples of rejections of lists, asset
forth above, amount to 4,228. The cases given as examples only indicate
the various infirmities which attach to nearly all of the testimony in
this case. The testimony which is not analyzed above is generally as
defective as that so analyzed. But deducting the 4,228 votes comprised
in the above lists, shown to be utterly worthless as testimony, from
the total footing of all the lists, 9,026, there is left 4,798, which,
if the 234 votes cast for Prioleau be added, makes a total of 5,032, or
1,036 less than the number of votes cast and counted for contestee.
The Committee on Elections No. 1 has shown every consideration to the
contestant; has listened to long and exhaustive arguments in his
behalf, and is of the opinion that the contestant, Aaron P. Prioleau,
was not elected a Member of Congress at the election in question.

In the Myers case,\1\ a similar question was thus decided:

At the Congressional election in the Second district of South
Carolina, on the 8th day of November, 1904, the contestant, Isaac
Myers, received in said district 419 votes. The contestee, J. O.
Patterson, received 7,426 votes.
The contestant asserted in his notice of contest that 10,000 or more
voters offered to vote for him at the election, but were refused the
opportunity and deprived of their rights by the election officers, who
resorted to unfair and fraudulent methods to bring about the election
of the contestee. The contestant offered in evidence a number of lists
of persons who were thus deprived of the opportunity to vote for
contestant. The committee finds that these lists contain the names of
2,963 persons whom the contestant alleges would have voted for him had
they not been deprived of their legal privileges, and contestant
asserts that all of the persons whose names appear on the lists were
entitled under the laws and Constitution of the United States to the
right of suffrage at such election.
Your committee does not express any opinion as to whether these lists
of names have any legal validity as evidence for the purpose of showing
that the persons named therein were entitled to vote, were denied the
right to vote, and would have voted for contestant if permitted to
vote, except to say that such evidence at the best is unsatisfactory.
If lists of persons offering to vote and refused the right to vote are
to be considered as evidence in any case, that such persons were
entitled to vote, and, if permitted, would have voted for a particular
candidate (which is doubtful, unless a conspiracy to commit fraud be
shown), then such lists should be kept by persons who know all the
persons offering to vote, who see such persons offer to vote, and who
testify as to their knowledge when called as witnesses where thorough
cross-examination may be had.
But if all the lists offered in evidence in this case were accepted
as legal evidence they only affect something less than 3,000 persons,
not enough to overcome the majority of the contestee.
Your committee is of opinion therefore that the contestant, Isaac
Myers, was not elected.
-----------------------------------------------------------------------
\1\ Report No. 4780.
Sec. 1135
With each report the committee recommended a resolution similar to
the following:

Resolved, That Charles C. Jacobs was not elected a Member of the
Fifty-ninth Congress from the Seventh Congressional district of South
Carolina, and is not entitled to a seat therein.

The House, without debate or division, agreed to each of the
resolutions.
It is to be noted that the decision in each case declares only that
contestant was not elected, and does not-as is usual in cases of
contested elections--pass on the title of sitting Member.